1865. GAINSFORD บ. FREEMAN. of sect. 20 of the Reform Act, 2 & 3 Will. 4, c. 45, entitled either as lessee or assignee to the one-sixth for the unexpired residue of a term originally created for a period of not less than sixty years, but only for such a portion of the term as his own life might endure. The vote was allowed, subject to this case. C. S. C. Bowen for the Appellant.-Statute 2 & 3 Will. 4, c. 45, s. 20, enacts, that every male person entitled "either as lessee or assignee" to any lands or tenements whether of freehold or of any other tenure for the unexpired residue, whatever it may be, of any term originally created for a period of not less than sixty years (whether determinable on a life or lives, or not) of the clear yearly value of not less than 101. over and above all rents and charges payable out of or in respect of the same, shall be entitled to vote for the county. The question is, whether the claimant is an assignee of the unexpired residue of the term of 999 years within the meaning of that section. It is not necessary to raise the point whether a devisee under a will may be an assignee, because a man cannot be properly called an assignee unless all the interest of the assignor passes to him. Here the testator was possessed of the term for 999 years certain, and the claimant to the unexpired residue, provided he should live so long. The testator had one thing, but the claimant has another. A further test is that the claimant has not power to assign that which the testator could have assigned. If it were not for the controlling statute 6 & 7 Vict. c. 18, the 74th sect. of which prohibits trustees of lands from voting, and confers that right upon the cestui que trust, the trustee here would be the assignee. But, notwithstanding that statute, the claimant is not possessed of the same équitable estate as the testator. The latter by his will divided his estate into parts and gave a parcel of it only to the claimant. It is impossible, therefore, that in any legal sense the claimant can be regarded as assignee of the unexpired residue of the term. Manisty for the Respondent.-Statute 6 & 7 Vict. c. 18, s. 74, renders it immaterial that the claimant was possessed only of an equitable estate. In point of law the same term was vested in both the testator and the claimant: Matthew Manning's case (a); Lampet's case (b). In the latter case, 47 a, it is said, "This case of a devise of a lease for years to one for life, and after his death to another during the residue of the term, hath produced septem quæstiones vexatas et spinosas." [Byles, J. The claimant is in this dilemma: in law he is not strictly assignee; and in equity he has not an interest in the unexpired residue.] It was not the intention of the legislature that the property should be unrepresented; and under stat. 6 & 7 Vict. c. 18, s. 74, the cestui que trust in actual possession, or in the receipt of the rents and profits, though he may receive them through the hands of the trustee, is entitled to vote. C. S. C. Bowen replied. ERLE, C. J. I am of opinion that the decision of the revising barrister was wrong. The 20th sect. of stat. 2 & 3 Will. 4, c. 45, creates the qualification on which the claimant relies. He claims as being entitled to lands as assignee for the unexpired residue of a term originally created for a period of not less than sixty years. The testator was possessed of a term originally created for 999 years, which he devised to trustees upon trust for the claimant during his life, and the claimant says that in point of law the tenant for life is owner of the term. But I think he can not resort to that legal fiction. As it was clearly put by Mr. Bowen, the claimant is possessed of the term for his life only, and at his death it goes over. His claim, therefore, under that section cannot be supported. He cannot (b) 10 Rep. 46 b. (a) 8 Rep. 94 b. 1865. GAINSFORD บ. FREEMAN. 1865. GAINSFORD V. FREEMAN. require the trustees to assign the term to him. He is then obliged to rely upon the 74th sect. of stat. 6 & 7 Vict. c. 18. But as cestui que trust he must make his claim subject to all equitable rights, and he is clearly not entitled as cestui que trust for the unexpired residue of the term, but for his own life only. WILLES, J. Having regard to the words of the 74th sect. of stat. 6 & 7 Vict. c. 18, I do not see how it can be said that any cestui que trust is within the section who is not entitled to such an interest as would qualify him to vote under the 20th section of stat. 2 & 3 Will. 4, c. 45. If the interest of the claimant were legal instead of equitable, he would not come within the 20th section of stat. 2 & 3 Will. 4, c. 45, because he would not be entitled to the unexpired residue of the term; and he is not possessed of a beneficial interest in the entire residue. BYLES, J. It was the intention of the legislature in passing stat. 6 & 7 Vict. c. 18, s. 74, to give the right to vote to persons otherwise entitled, though they might not be possessed of the legal estate. It is unnecessary to consider what my decision might have been if the claimant had had a legal instead of an equitable interest, though in that case it could hardly be said that he had the lands for the unexpired residue of the term. Here, however, the claimant has an equitable interest and that only for his own life. KEATING, J. It is admitted that the vote is not claimed in respect of any legal interest, but it is said that the privilege is given by stat. 6 & 7 Vict. c. 18, s. 74. The claim being made in respect of a beneficial interest the Court must see what the extent of that interest is, and it appears to be a beneficial interest, not in the unexpired residue of a term, but only for the claimant's life. Decision reversed. BOROUGH OF TOTNES. HARRIS, App., AMERY, Resp. 1865. November 20. "The Companies Act, 1862," 25 & 26 Vict. c. 89, s. 4, after prohibiting the Borough vote. formation of banking partnerships consisting of more than ten persons, Occupation as unless registered under that Act, or formed in pursuance of some tenant. other Act or of letters-patent, enacts that "no company, association, 2 & 3 Will. 4, or partnership consisting of more than twenty persons shall be formed, c. 45, s. 27. after the commencement of this Act, for the purpose of carrying on Unregistered any other business that has for its object the acquisition of gain by partnership of the company, association, or partnership, or by the individual mem- more than bers thereof, unless it is registered as a company under this Act, or is twenty persons. formed in pursuance of some other Act of Parliament, or of letters- Illegal combipatent, or is a company engaged in working mines within and subject nation. to the jurisdiction of the Stannaries." Forty-six persons having formed The Companies a partnership for the purpose of creating votes and making a profit Act, 1862, out of a farm, the former being the principal object, entered into an 25 & 26 Vict. agreement with F., by which they agreed to take the farm as tenants c. 89, s. 4. at will at a rent of £473: 10s. per annum. The farm consisted of "Business." 142 acres, and there was a building on it worth £6 per annum, in Farming. which the whole business of the farm was conducted; and the part- Partnership for ners having entered "in pursuance of" the agreement, appointed one creating votes. of themselves manager, who farmed the estate on their account. The partnership was not registered under "The Companies Act, 1862," nor formed in pursuance of any other Act, or of letters-patent. Held: 1. That farming is a "business" within the meaning of sect. 4. 2. That the members of the partnership were not qualified to vote under stat. 2 & 3 Will. 4, c. 45, s. 27, as tenants in occupation of the farm, since they were not in actual occupation of the land, and, in order to make out a constructive occupation, it was necessary to look at the agreement, which showed that the partnership was in violation of "The Companies Act, 1862." 3. Quære, whether a partnership consisting of not more than twenty members, and formed avowedly for the purpose of creating votes as its principal object, and making profits by the occupation of land, would be lawful? AT a Court held on October 14th, 1865, before the re vising barrister for the borough of Totnes, Robert Harris objected to the names of Peter Fabyan Sparke Amery (a) and forty-two other persons being retained on the list of voters. (a) In the case, as originally reserved by the revising barrister, William Fabyan Windeate was named as the Respondent; but, upon the case being called on for argument, it was stated that he had died after the reservation of the case, and the Court allowed the now Respondent's name to be inserted in his stead. 1865. GAINSFORD V. FREEMAN. require the trustees to assign the term to him. He is then obliged to rely upon the 74th sect. of stat. 6 & 7 Vict. c. 18. But as cestui que trust he must make his claim subject to all equitable rights, and he is clearly not entitled as cestui que trust for the unexpired residue of the term, but for his own life only. WILLES, J. Having regard to the words of the 74th sect. of stat. 6 & 7 Vict. c. 18, I do not see how it can be said that any cestui que trust is within the section who is not entitled to such an interest as would qualify him to vote under the 20th section of stat. 2 & 3 Will. 4, c. 45. If the interest of the claimant were legal instead of equitable, he would not come within the 20th section of stat. 2 & 3 Will. 4, c. 45, because he would not be entitled to the unexpired residue of the term; and he is not possessed of a beneficial interest in the entire residue. BYLES, J. It was the intention of the legislature in passing stat. 6 & 7 Vict. c. 18, s. 74, to give the right to vote to persons otherwise entitled, though they might not be possessed of the legal estate. It is unnecessary to consider what my decision might have been if the claimant had had a legal instead of an equitable interest, though in that case it could hardly be said that he had the lands for the unexpired residue of the term. Here, however, the claimant has an equitable interest and that only for his own life. KEATING, J. It is admitted that the vote is not claimed in respect of any legal interest, but it is said that the pri vilege is given by stat. 6 & 7 Vict. c. 18, s. 74. The claim being made in respect of a beneficial interest the Court must see what the extent of that interest is, and it appears to be a beneficial interest, not in the unexpired residue of a term, but only for the claimant's life. Decision reversed. |