Pownall v. Hood. charging, collecting or levying the customs. It is clear that ordinary tide-waiters are within the meaning of the above section. The only difference between them and the respondent is, that they are always employed, he only when, from an excess of work of that kind, his services are required. He receives a regular appointment, and is liable to be called upon at any moment; and is within the mischief intended to be provided against by the statute, being under the control of his superior officers. In the case of Harris v. Fudger, Falc. & F. Elec. Cas. 353, the vote of a glut tide-waiter was held good by a committee of the House of Commons; but that decision cannot be supported. The case here finds that the claimant had made the declaration required by 8 & 9 Vict. c. 85, s. 10, by which he must have declared that he will take nothing for any of the duties of his employment, except his salary and what is allowed him by law, or by any special order of the Commissioners of the Treasury or the Customs. This shews that he is entirely subject to the commissioners, both as regards his employment and his remuneration. He cited Cooper v. Harris, 7 Man. & G. 97; s. c. 14 Law J. Rep. (N. s.) C. P. 72; and The King v. Salisbury, 5 Car. & P. 155. JERVIS, C. J. I am of opinion, that the decision of the revising barrister was wrong, and ought to be reversed. There is no doubt that a glut tide-waiter is directly within the mischief intended to be provided against, being liable to the influence of the government which appoints him. But that alone would not be sufficient, unless he does come within the provision of the act of parliament. I think that the facts stated in the case shew that he is an officer or person employed in levying the customs within the meaning of 22 Geo. 3, c. 41. An occasional tide-waiter is, of course, employed less constantly than a regular tide-waiter; but the case finds that when his name is on the list he is bound to be ready to act, and liable to be called away from his other work when his services are required. In what respect, then, does his employment differ from the other? It only differs in this: that the one is more constantly employed, and paid by a salary; the other employed less constantly, and paid by the job. I, therefore, think that the case is within the mischief intended to be provided against, that it is provided for by the act of parliament, and that the decision must be reversed. MAULE, J. I am of the same opinion. I think it is clear that a glut tide-waiter is an officer employed in the collection of customs. It is found that he holds his office on the terms of being ready to act whenever called upon. He must always be at his post, and ready when called upon to do his work. The only thing that gives any color for holding that his case differs from that of other officers is, that the measure of his payment is to be the work he does, whereas they are paid on a different system But I think that he is paid not only for what he does, but for being ready to do his work in the collection of customs whenever he is called upon. I do not think that this mode of payment prevents him from being a person employed Pownall v. Dawson. in the collecting the customs, but that he is very clearly within that definition. He is also within the mischief contemplated by the act, and if so, perhaps more clearly so than any other person; because he may be called upon to act or not, and so enabled to earn money or not, at the will of his superiors, and is thus completely under their control; and if he refused to vote according to their pleasure, they might refuse to continue to employ him. I think the decision of the revising barrister wrong, and that it must be reversed. WILLIAMS, J., and TALFOURD, J., concurred. Decision reversed. POWNALL, Appellant, v. DAWSON, Respondent.1 Parliament-Borough Vote-Building Continuous Structure- The premises in respect of which a vote for a borough was claimed, under 2 Will 4, c. 45, s. 27, consisted of a two-stalled stable, built of brick, with another brick building annexed, but of a lower elevation, and to which also a wooden building was annexed, in three compart ments, each of which, as well as the two brick buildings, had an opening into the same yard; but there was no internal communication. All three were occupied together under the same landlord, and used by the claimant for a wheelwright's business. Held, that this was “a building” within the meaning of the statute. THE following case was stated by the revising barrister of the borough of Harwich, for the opinion of the Court of Commom Pleas. Case. An objection was duly taken by Edward Pownall to the name of Daniel Dawson being retained on the list of persons entitled to vote for the borough in respect of the occupation of property within the parish of St. Nicholas, the name of the said Daniel Dawson being thus entered on the said list: first column, " Name, Daniel Dawson;" second, "Residence, West Street;" third, " Qualification, workshop, stable, and garden;" fourth, "Situation of property, Out part westward." The ground of the said objection was, that the "stable" and "workshop" were not so situated with respect to each other that they could be united so as to form a qualification, or part of a qualifica tion. The premises described in the third column of the above entry, consisted of a two-stalled stable, with hay-loft over it, built of brick; annexed to which, but of a lower elevation, was another brick building, to which again was annexed an irregular wooden building, divided into three compartments. Each of these compartments, as well as 121 Law J. Rep. (N. s.) C. P. 14. Appeal from Revising Barrister's Court. Pownall v. Dawson. each of the two brick buildings, had a door in front opening into a yard, one side of which was bounded by this row of buildings, the opposite side by a high wall in which was a door opening into the garden, which was also completely surrounded by a high brick wall. The end of the yard fronting the street was inclosed by folding wooden gates, and the opposite end by a high blank wall. The voter was a wheelwright and coach-builder by trade, and used all the buildings above mentioned for the purposes of his said trade, which he carried on there. He had never used the stable as such, but always as a painting shop. The adjoining brick building he had used as his carpentering shop, and the several compartments of the wooden building as places of deposit for the rough materials of his trade, and as stands for gigs and other carriages of his construction or which were left with him for repair. The three buildings, or portions of building, above mentioned were closely annexed to each other, but there was no internal communication between any of them, except a door between the two compartments of the wooden building which were used as stands for carriages. The whole of the premises were occupied by the voter under one landlord, and at a yearly rent of 107., which was admitted to be the clear yearly value of them, and the only ground of objection to him was that above mentioned. Being of opinion that the common purpose for which the whole row of buildings was used and its complete inclosure in the yards gave it the character of a single building, I disallowed the objection, and retained the name of Daniel Dawson in the list. Kinglake, Serj., for the appellant. The question is, whether the case shews that the respondent was in occupation of a building of the value of 10l. It is submitted that these contiguous buildings mentioned in the case do not form a building within the meaning of the act 2 Will. 4, c. 45, s. 27. It has been held that for the purposes of that section no two buildings can be united together so as to confer a vote. Dewhurst v. Feilden, 7 Man. & G. 183; s. c. 14 Law J. Rep. (N. s.) C. P. 126. [MAULE, J. In that case there was a discontinuity. The buildings were far apart.] Powell v. Price, 4. Com. B. Rep. 105; s. c. 16 Law J. Rep. (N. s.) C. P. 139, shews that separate buildings cannot be united for the purposes of the franchise, though occupied for the purposes of a farm, unless they are all within the same curtilage. [MAULE, J. Here the buildings are continuous and under one roof.] There ought to be an internal communication in order to make them one building. Jolliffe v. Rice, 6 Com. B. Rep. 1; s. c. 18 Law J. Rep. (N. s.) C. P. 25. Wilde, C. J., in that case says, "There is some sort of internal communication." Unless that had been so, the case would have been the same as the present, and the two buildings could not have been held to form one. In this there is no internal communication, and the roofs are not on the same level. Pownall v. Dawson. [MAULE, J. "The same roof," in the cases cited, does not mean a continuous set of rafters.] It may be admitted that the roof might be considered one, if there was an internal communication. [MAULE, J. That would make the three roofs one?] He also cited Wright v. The Town Clerk of Stockport, 5 Man. & G. 33; s. c. 13 Law J. Rep. (N. s.) C. P. 50, and Toms v. Luckett, 5 Com. B. Rep. 23; s. c. 17 Law J. Rep. (N. s.) C. P. 27. JERVIS, C. J. In this case, as in the last, (Pownall v. Hood,) it turns out that there really is no question when the facts are ascertained. All the decisions bearing upon the point have been very properly brought before the court by my brother Kinglake; but when examined they are all authorities against the appellant. I am of opinion that these buildings are all under the same roof, and that they are continuous buildings having communication with one another by a yard, and all occupied by the same person, and that they form one building within the decisions and the act of parliament. MAULE, J. I think that the respondent gained a vote by the occupation of a building of the value of 107. The thing in respect of the occupation of which the vote is here gained is an aggregate of a brick building, a two-stalled stable, and a workshop built of wood, and divided into three compartments. These buildings are all occupied by one man and used for one business; and they are not separate, but annexed to each other; they may have been, and probably were, all built at once with a view to one occupation, although, perhaps, what is called the stable was originally intended to be used as such. Now, where buildings are all united together and in actual use, you are released from all questions of curtilage. All you want is unity, and it is necessary to see whether the building is one, or more or less than one. Two or three different buildings will not confer a vote; but I do not think that this is two or three, but one. It is wholly immaterial whether a vote could be acquired by the occupation of one of the three parts of this building or not; it is a continuous structure, under one roof, occupied by one man for one purpose. The cases last cited are cases in which it was contended that different sets of rooms under the same roof in different occupations, could not each be considered buildings. Those cases establish that a part of a building occupied separately for a separate purpose, though only a part of a building in some senses is a building within the meaning of the act. I think that if a person occupied two different floors under one roof, within the meaning of those decisions, he would occupy a building. In the present case the structure in question is one building or several. I think it is not several, for the reasons I have stated, and that the decision was right. WILLIAMS, J., and TALFOURD, J., concurred. Decision affirmed. Harris v. The Great Northern Railway Co. HARRIS V. THE GREAT NORTHERN RAILWAY COMPANY.1 November 6, 1851. Practice- Motion in Arrest of Judgment- Demurrers undeterminedRule Hil. T. 2 Will. 4, c. 65- Time for Moving. Some issues of fact had been found for the plaintiff, and some for the defendant in vacation. Issues in law still remained undetermined at the commencement of the next term. It being admitted that no motion in arrest of judgment, or for judgment non obstante veredicto, could be made until the demurrers were determined: Semble, that no such motion could be made under the circumstances after the first four days of term, except by consent. In this case issues in fact had been joined upon two of the pleas in an action which had been tried, and a verdict found for the defendants; upon other issues a verdict had been found for the plaintiff. Issues had also been joined upon demurrers to others of the pleas, which stood for argument. Sir F. Thesiger, who was for the defendants, now mentioned the case, and stated that one question to be afterwards determined, was, whether the two pleas upon which the defendants had obtained a verdict contained an answer to the action. He also stated that he intended to move in arrest of judgment, and that Bramwell, on the other side, intended to move for judgment non obstante veredicto; but that inasmuch as the issues in law had not yet been determined, both sides were agreed that neither motion could be made at present. Goodright v. Hodgson, Andr. 282. He, therefore, moved for a rule to allow the defendants to move in arrest of judgment within four days. from the time when either party should have become entitled to judg ment upon the demurrers. [JERVIS, C. J. The rule of court H. T. 2 Will. 4, c. 65, is express, that "no motion in arrest of judgment or for judgment non obstante veredicto, shall be allowed after the expiration of four days from the time of trial;" in this case, of the first four days of term. Prac. 1850, (8th edit.)] He then mentioned that the plaintiff's counsel consented. Arch. Per Curiam. Then let the rule be drawn up, on consent of the parties, for either to move within the four days next are determined. after the demurrers Rule accordingly. 1 21 Law J. Rep. (N. s.) C. P. 16. |