tion of the building there was given as follows:-"The shed stood against a wooden paling, the boundary of the wharf, but was not fastened to it. Six posts put into the ground supported a tarpaulin or tar-cloth, which formed the roof. One of the sides of the shed was boarded up with boards fastened to the posts by nails. The shed was used for purposes connected with the occupation of the wharf." In the course of the argument, Maule, J., says: "The revising barrister has found that this is a building,' within the meaning of the Act; and he gives us a description embracing some of the incidents of a building. He describes two sides of the structure: the rest may be of solid masonry." In giving judgment, Wilde, C. J., says: "The revising barrister has found the erection in question to be a 'building' within the meaning of the Act; and his decision must stand, unless the Court is satisfied that the thing described cannot be a building. It is difficult accurately to define what is a building. The statute uses the word 'warehouse.' I do not apprehend that this could not be called a warehouse, merely because it might be open on all rides. The shed, as it is called, appears to be closed on [*172 two sides; and to have a roof; and it is used by the respond. ent for purposes connected with the occupation of the wharf. It is also stated to be used by one Marks as a place of deposit for goods. When, therefore, it is said, that, to constitute a building within the Act, the thing must be ejusdem generis with those particularly enumerated, I think that this does sufficiently appear to be a warehouse.' At all events, there is nothing in the case that is inconsistent with its being so held. The revising barrister having found it to be a 'building' within the Act, I must assume that it has all the requisites to constitute a building, except the incidents he sets out. And I see nothing in the facts he has stated to guide the Court in the exercise of its opinion, that can prevent this being a building analogous to a warehouse." And Maule, J., added: "Its being more or less substantial cannot affect the question." Here, however, we have a full description of the thing, and of the circumstances under which it was erected and these totally exclude the notion of its being a building or any part of that which the respondent rented. It is neither a building, nor is he tenant of it. [BYLES, J.-Suppose the respondent does not exercise his right to remove this structure?] He may in that case be assumed to have ceded it to his landlord; and the next occupier may possibly become tenant of a building. The "pig-stye" clearly cannot in any sense be said to be a building: it must be either fit for the habitation of man, or a place to be used for commercial purposes.

Karslake, Q. C. (with whom was The Hon. R. Bourke), for the respondent.-Watson, app., Cotton, resp., is precisely in point. It is impossible for the Court to hold that a structure described as this is cannot be a building. Then, as to the character of the *occu[*173 pation,-If the structure be irremovable, it cannot be said that the respondent does not occupy it as tenant. Whatever, as a general rule, is fixed to the soil becomes part of the soil. [ERLE, C. J.-The statute intended, that, to be a voter for a borough, the party should be an inhabitant, or should have some commercial interest therein. Land may be joined to the other subject of qualification in order to

eke out the value: but there must be "house, warehouse, countinghouse, shop, or other building," that is, something of the same character and description as those mentioned. This principle was incidentally discussed in the recent case of Cook, app., Humber, resp., 11 C. B. N. S. 33 (E. C. L. R. vol. 103), K. & G. 413.] Then, a pig-stye may equally be a building within the meaning of the Act. [ERLE, C. J.-It may be that the shed used by the market-gardener for storing his potatoes may be a building used for the purposes of trade. But it seems to me that a dog-kennel would form as good a qualification for a vote as a pig-stye.]

Keane, Q. C., in reply, referred to Culling v. Tuffnal, Bul. N. P. 34, Wansbrough v. Maton, 4 Ad. & E. 884 (E. C. L. R. vol. 31), 6 N. & M. 367, The King v. The Inhabitants of Otley, 1 B. & Ad. 161 (E. C. L. R. vol. 20), and Martin v Roe, 7 Ellis & B. 237 (E. C. L. R. vol. 90). Cur, adv. vult.

:

ERLE, C. J., now delivered the judgment of the Court:Upon this appeal two questions are raised,-first, whether the shed described in the case was a "building" within the statute, that is, whether it had sufficient permanence, and was ejusdem generis with the buildings specified in the statute,-house, warehouse, countinghouse, shop.

*The revising barrister found it to be such a building; and, *174] according to the principle laid down in Watson, app., Cotton, resp., 5 C. B. 51 (E. C. L. R. vol. 57), 2 Lutw. Reg. Cas. 53, we do not see sufficient in the description he has given, to authorize us to reverse his decision. It is constructed of planks nailed to posts let into the ground, and used for storing potatoes, that being an article in the way of the claimant's trade of a market-gardener.

The second question is, whether this shed was occupied by the claimant in the capacity of tenant. As to this, the facts are, that, at the time of the demise there was no shed on the premises; but the claimant placed it there during his term, and used it as above mentioned.

The revising barrister found that it was so occupied; and we do not see sufficient on his statement to authorize us to reverse his decision. If the shed had become the property of the landlord, it was occupied by the claimant in his capacity of tenant, although he constructed the shed and placed it there during the term: and the general rule is, "quicquid plantatur solo solo cedit." It may be that the shed continued the property of the tenant, and was subject to be removed by him at any time during the term. His right to do so might depend on his contract with his landlord, or on the nature of the structure being such as would make it removable as a trade-fixture. But, whatever may be the right of the tenant if further facts were added, upon the statement made, we act on the general presumption that things. affixed to the freehold pass to the landlord, and affirm the decision. The revising barrister has raised a further question, whether a pigstye is a building ejusdem generis with "house, warehouse, countinghouse, and shop." It is *not necessary to answer this ques*175] tion, which is only raised in case the shed was found insufficient: but we would add that we are by no means prepared to assent

to the revising barrister's opinion on this point, without further discussion.

We would further add that the revising barrister has in our judgment done good service in sending this and the next following case to us for our decision, and giving us the opportunity of explaining what we consider to be the true meaning of the Court in Watson, app., Cotton, resp., and thereby putting some limitation upon the wide inferences drawn therefrom,-contrary, in some degree, to the intention both of the Legislature as expressed in the statute, and of the Judges expounding the same. Decision affirmed.(a)

(a) See the next case.

Borough of KIDDERMINSTER.

RICHARD POWELL, Appellant; JOHN GEORGE BORASTON, Respondent. Jan. 17.

1. The respondent occupied a farm of which a few acres, worth more than 10%. a year, were within a borough, but with no building thereon. An electioneering agent, for the purpose of creating a vote, erected on this land a shed, made of wood, having four boarded sides and a boarded roof, and being supported by four posts let into the ground three feet.

The revising barrister having held that this was a "building" within the 27th section of the Reform Act, and that it was occupied by the respondent as "tenant," the Court (acting upon the rule laid down in Cook, app., Humber, resp., 11 C. B. N. S. 33 (E. C. L. R. vol. 103), K. & G. 413) reversed his decision.

2. Remarks upon Watson, app., Cotton, resp., 5 C. B. 51 (E. C. L. R. vol. 57), 2 Lutw. Reg. Cas. 53.

AT a Court held for the revision of the lists of voters for the borough of Kidderminster, Richard Powell objected to the name of John George Boraston being *retained on the list of persons entitled to vote in the election of a member for the borough of Kidder. [*176 minster in respect of property occupied in the parish of Kidderminster Foreign.

The said John George Boraston is a farmer, and for several years. has rented and occupied a farm at Sutton Common, within the parish of Kidderminster Foreign, but being partly within and partly beyond the limits of the parliamentary borough of Kidderminster.

The greater portion of the farm, including the farm-buildings, is beyond the borough limits; but a few acres of land, of more than the clear yearly value of 107., lie within the borough.

There was no building on the land within the borough when the said John George Boraston took the farm of his landlord: but, in the summer of 1862, a shed was placed upon the piece of land within the borough. This shed was made entirely of wood, having four boarded sides and a boarded roof, and being supported by four posts let into the ground three feet. It adjoins a public road; and most of the side boards of the shed facing the road have been broken to pieces. There is no floor to the shed. It is entered by a door, and used by the tenant for keeping agricultural implements in.

It was proved that the shed was erected by a builder of Kidderminster, in accordance with instructions received by him from an

active political agent in that borough, who had no interest either as landlord or tenant in the land upon which it was erected. But previously to its erection the permission of the said John George Boraston was asked, who replied that he could not give an answer; his landlord must be asked. There was no evidence of the landlord having given such permission: but the said John George Boraston *177] gave *instructions to the builder as to the size of the door of the shed, and told him, that, if he required it floored, he would do it himself.

It was objected on behalf of the said Richard Powell that the name of the said John Boraston ought to be expunged from the said list, on the following grounds,-first, that the shed erected as aforesaid was not a "building," within the meaning of the Reform Act,secondly, that under the circumstances stated respecting its erection, there was no occupation of the shed by the said John George Boraston, within the meaning of the Reform Act,-thirdly, that the shed formed no part of the property for which the said John George Boraston paid rent, and could not be said to be occupied by him with the land, as tenant, under the same landlord.

The revising barrister held the contrary of these objections, and decided to retain the name of the said John George Boraston on the said list.

If the Court should be of opinion that his decision was wrong, the name of the said John George Boraston was to be expunged from such list.

Keane, Q. C., for the appellant.-This is a stronger case than that of Powell, app., Farmer, resp., antè, p. 168. The thing described in the case cannot under any circumstances be considered as a "building" within the Act: it formed no part of the premises for which the respondent paid rent. The revising barrister was clearly wrong in holding that it could confer a qualification.

Karslake, Q. C.(with whom was The Hon. R. Bourke), for the respond. ent. The revising barrister has found this structure to be a building. The description he gives of it is not such as to preclude the possibility of its being a building. It is used by the tenant as *178] part of his holding, for the storing of agricultural implements. The mere fact of its having been built by a stranger does not prevent it from being a "building" within the Act. Cur, adv. vult.

ERLE, C. J., now delivered the judgment of the Court:The respondent occupied a farm of which a few acres, worth more than 107. annually, were within the borough; and on this part of the farm there was no building at the time of the demise, nor for years after. In 1862, an electioneering agent, having no interest of any sort in the land, caused a shed, made of boards nailed to posts, to be erected, and therein the respondent had kept some agricultural implements. There was no evidence that the landlord had any knowledge on the subject. The revising barrister held that this shed was a building within the statute, and that it was occupied by the respondent as tenant. His decision is the subject of this appeal: and we are of opinion that it should be reversed on both points.

The Legislature has not defined with clearness the qualification for a vote in a borough. In a county, all that is comprised under the term

land is the principal source of qualification. But, in a borough, land alone does not qualify: it can only be used as an accessory to a building for the sole purpose of making up the value of 107.

The intention of the Legislature respecting a qualification for a borough was much considered in Cook, app., Humber, resp., 11 C. B. N. S. 33 (E. C. L. R. vol. 103), K. & G. 413. It is there laid down, at p. 41, "that the qualification is compounded of four elements, tenement, value, occupation, and estate. For tenement, there must be a house, warehouse, counting-house, shop, or other [*179 building analogous thereto: there must be the annual value, 101. there must be occupation, that is, actual exercise of the rights of an owner in possession, during the requisite time and there must be an estate in the tenement, either of fee or less. If these four distinct elements are combined in the claimant, he is qualified [in respect of property]; if otherwise, he is not. Now, although they must exist in combination, in order to qualify, still, in inquiring into the existence of the combination, each element must be separately ascer tained, first, is the claimant tenant ?-secondly, is he occupier?thirdly, is the tenement sufficient in value ?—and, fourthly, in kind?" Again, in pp. 44 and 45, it is said: "The statute required some permanent occupation of, and some independent interest in, the property. The permanence prevents the sudden creation of votes. The ownership or the tenancy (with rating) indicate some independence,"-in other words, the requirement of at least a tenancy excludes some occupations of less independence, such as that of servants and objects of charity. "As to the kind of tenement which qualifies, the statute has described two classes of buildings, namely, those used for residential and those used for commercial purposes; that is, house for residence; warehouse, counting-house, shop, or other analogous building, for commercial purposes."

To apply these principles to the present case, we think that the so-called building is not of the class specified in the statute, that is, it is neither in the residentiary class nor in the class connected with commercial industry. We also think that the claimant's occupation thereof was not in the capacity of tenant.

As to the first question,-whether the so-called building is sufficient to qualify, we are aware of the impossibility of defining clearly what is included in *the class described in the statute by the words [*180 "or other building," and of the difficulty of affirming that a thing is not in a class, when the boundary of the class is unknown. We are also aware of the immense variety of structures which are sufficient buildings, considering the locality and the use for which they are adapted in that locality. Still, we are of opinion that the intention of the Legislature would be defeated, and the words indicating the class of buildings which qualify would be without any effect, if everything which could be called a building was held sufficient. It ought to be in some degree adapted both to be used by man either for residence or for the industry to which the statute relates, and also to have the degree of durability which is included in the idea of a building.

The shed in question fulfils neither of these conditions. The boards were nailed to the posts for the purpose of performing the part of a