v. Davis, 4 C. B. 444 (E. C. L. R. vol. 56), turned upon the meaning of the word "reside" in the Bankrupt Acts.

ERLE, C. J.-I am of opinion that the decision of the revising barrister in this case was wrong, and that Guest, the respondent, had not a right to have his name retained upon the list of voters for the borough of Kidderminster. The 27th section of the Reform Act contains a proviso "that no such person," as before mentioned, "shall be so registered in any year, unless he shall have resided for six calendar months next previous to the last day of July in such year within the city or borough, or within the place sharing in the election for the city or borough, in respect of which city, borough, or place respectively he shall be entitled to vote, or within seven statute miles thereof or of any part thereof:" and this person was for a considerable portion of the six months in prison under sentence for a misdemeanor at a distance exceeding *seven statute miles from the borough. [*80 The Legislature has imposed residence as one of the conditions of qualification. Did this man reside in the borough during the specified time? I will assume that he had a house there, and a wife and family, and that he had animus revertendi: but, during the time he was in prison, he was not sui juris: he was not at liberty to return home: he had forfeited his right to do so by his own criminal act. I entirely subscribe to the doctrine so clearly laid down in Elliott on Registration, 2d edit. 204, where the learned author says, that, "in order to constitute residence, a party must possess at the least a sleeping apartment, but that an uninterrupted abiding at such dwelling is not requisite." "Absence," he continues, "no matter how long, if there be the liberty of returning at any time, and no abandonment of the intention to return whenever it may suit the party's pleasure or convenience so to do, will not prevent a constructive legal residence. But, if he has debarred himself of the liberty of returning to such dwelling, by letting it for a period, however short, or has abandoned his intention of returning, he cannot any longer be said to have even a legal residence there." The learned author says he loses his character of resident "if he has debarred himself of the liberty of returning to such dwelling," and he gives two examples, viz., letting the house, or abandoning the intention of returning. I think we may add to these a third case: I think this man has debarred himself of the liberty of returning, when he has been guilty of a criminal act, by reason of which the laws of his country have taken away from him the power of returning. Judges who have from time had to decide upon the meaning of "residence" in different statutes, have been obliged to resort to various shifting meanings of the word, according to the object and intention of the Legislature in the particular statute in which it is used. In Nias v. Davis, 4 C. B. 444 (E. C. [*81 L. R. vol. 56), for the purpose of the administration of the Bankrupt Law, the party, though temporarily confined for debt in a distant county, was held to be resident in the place where his family was, and where probably also his creditors dwelt and his debts were contracted. I should say also that that statute was passed altogether alio intuitu from the statute now under consideration. Further, I should say that a man who is imprisoned for debt has not absolutely lost the liberty of returning to his place of residence: by paying the debt, he

becomes free to return. So, the case of the militiamen (The King v. Mitchell, 10 East 511) is in some degree consistent with the power to return to their residences. But a person who stands convicted and sentenced to an absolute term of imprisonment for a misdemeanor, without the option of purging his offence by payment of a fine, is under an utter disability to return to his home. I think all the cases cited are distinguishable, and that the intention of the Legislature will be carried out by holding that this respondent has not complied with the condition of residence which the statute imposes. If his imprisonment for five months were held not to deprive him of his right to be registered, I do not see why an imprisonment for two years should prevent him from being qualified. I think the decision was wrong, and must be reversed.

BYLES, J.-I am of the same opinion. It is not necessary or convenient to lay down any universal rule on the subject: but I think the fair result of the authorities is, that legal inability caused by the criminal and voluntary act of the party, and not from misfortune, breaks the residence, and destroys the qualification. The case of a *821 man who is kept away from his residence by bodily or mental

infirmity, is distinguishable; as also is that of a militiaman absent for a time on duty, or of an innocent man accused and remanded, or committed for trial and acquitted. These are purely cases of misfortune. It is distinguishable also from that of a man imprisoned under a writ of ca. sa., or for non-payment of a fine: he may relieve himself from impediment to his return by paying the debt or the fine. Extreme cases may be suggested in support of either view. On the one side, it may be asked, would an imprisonment for twenty-four hours disqualify? On the other it might be asked, would twenty years' imprisonment disqualify? It is not easy at first sight to say where the line is to be drawn: but, upon the whole, I agree with my Lord that the decision of the revising barrister here was wrong.

KEATING, J.-I am of the same opinion. Cases which approach the line are always very difficult to decide. But I am of opinion, that, where a man has by his own wrongful and criminal act deprived himself of the power of complying with the condition of residence in the statute in question, he cannot be said to have continuously resided in the borough. Decision reversed.

*83]

*Borough of KIDDERMINSTER.

RICHARD POWELL, Appellant; WILLIAM JONES, Respondent.

Nov. 22.

A. was possessed of three houses (one of which he himself occupied), each being under the yearly value of 10. Under a local Act, he compounded for the rates upon all the premises for one year. At the expiration of the year no new composition was entered into, but the overseers continued to assess the premises as before, though A. had improved those in his own occupation so as to increase their yearly value to upwards of 107. He then claimed to be rated to the full rate in respect of the premises in his own occupation, but he did not at that time pay or tender the arrears of rates then due. No alteration was made in the rating. A. afterwards, and before the 20th of July, paid to the overseers a sum which was more than sufficient to satisfy all rates due in respect of the last-mentioned premises to the 5th of January, but made

no specific appropriation of the money at the time of the payment; and the overseers placed the amount against all the rates due :

The revising barrister having found that A. was sufficiently rated, and that he had paid his rates so as to entitle him to be registered, the Court refused to interfere with his decision.

1. AT a Court held for the revision of the lists of voters for the borough of Kidderminster, Richard Powell objected to the name of William Jones being retained on the list of persons entitled to vote in the election of a member for the borough of Kidderminster in respect of property occupied within the parish of Kidderminster Borough.

2. The said William Jones occupied in St. John Street, within the parish of Kidderminster Borough, for twelve calendar months previous to the last day of July in the present year, a house and garden of upwards of the clear yearly value of 101.

3. The said William Jones was the owner of the said house and garden in his occupation, and also of the two adjoining houses.

4. The said William Jones some years since, under the provisions of an Act of 4 & 5 Vict. c. lxxii., intituled "An Act for better assessing and collecting the poor-rates in the borough of Kidderminster, in the county of Worcester," compounded with the overseers for the said borough for the poor-rates of the above houses for the term of one year; and by entering into such composition only one-half the amount was assessed on the said house and garden for poor-rates that I would have been assessed thereon if the said *William Jones had not entered into such composition. At the expiration of the [*84 year for which such composition was entered into, and down to the month of July last inclusive, the July rate being made and allowed on the 22d of that month, the overseers continued to assess the said house and garden on composition, although the said William Jones did not enter into any composition agreement with them other than as above stated, neither did he attend any meeting of the overseers for the purpose of entering into any other composition agreement; but the demand made by the overseer, and the receipt given by the collector, stated that the rates were composition poor-rates.

4. Subsequently to the said William Jones entering into such composition as aforesaid, and previously to the 31st of July, 1863, he made improvements to the said house and garden, by which the clear yearly value thereof was raised to upwards of 107.

5. The case contained an extract of the poor-rate made and allowed the 15th of October, 1863, so far as was material to this case (being the first rate made after the 31st July preceding), showing the names of the occupiers of two of the tenements (the third being void), and also the name of the owner (the respondent), the description of the property, the gross estimated rental, the rateable value, and the amount of the rate assessed upon the owner pursuant to the statute.

6. The said William Jones, in October, 1863 (but he could not state the precise day), claimed to be rated separately for the said two other houses, and to the full rate for and in respect of the house and garden in his own occupation, for the purpose, as he then stated to the overseer, of "getting his vote;" but he did not at the same time pay or tender the arrears of rates then due.

*7. The overseer did not alter the rating in respect of the *85] said house and garden in the occupation of the said William

Jones.

8. The compound rate laid in October, 1863, amounted for all three houses and garden to 4s. 9d., and there were arrears of former rates brought forward of 11. 3s. 9d., making the total rates then due in respect of the three houses, 17. 8s. 6d.

9. The said William Jones, subsequently to his claiming to be separately rated as aforesaid, and previously to the 20th of July in the present year, paid to the overseers of the said borough the sums of 10s. and 12s. 6d., making together 17. 2s. 6d., which was more than sufficient to pay all rates due previously to the 5th of January last in respect of the house and garden in his own occupation: but, at the time of making such payment, he did not state or specify to what rate or in respect of which houses he paid the said amounts: and the collector placed the amount against all the rates due, namely 11. 8s. 6d.

10. It was objected, on behalf of the said Richard Powell, that the name of the said William Jones should be expunged from the list of persons entitled to vote in the election of a member for the borough of Kidderminster in respect of property occupied within the said parish of Kidderminster Borough, inasmuch,-first, as he had not been rated in respect of such house and garden to all rates for the relief of the poor in such parish of Kidderminster Borough made during the time of such his occupation as aforesaid,-secondly, that the said William Jones had not paid the poor-rates payable from him previously to the 5th of January, on or before the 20th of July in the present year.

11. The revising barrister held that the said William Jones was *86] rated in respect of such house and garden to all rates for the relief of the poor in such parish of Kidderminster Borough made during the time of his occupation, and that he had paid the poor-rates payable from him previously to the 5th day of January, on or before the 20th day of July in the present year; and accordingly retained his name on the list of voters.

12. If the Court should be of opinion, that, under the circumstances stated, the said William Jones was not rated in respect of such house and garden to all rates for the relief of the poor during the time aforesaid, or that he had not paid the poor-rates payable from him previously to the 5th day of January, on or before the 20th day of July in the present year, then the name of the said William Jones was to be expunged from the list of voters, and the register of voters was to be altered accordingly. But, if the Court should be of opinion, that, under the circumstances stated, the said William Jones was rated in respect of such house and garden, and had paid all rates payable from him previously to the 5th day of January, on or before the 20th day of July in the present year, the register of voters was to remain unaltered.

Keane, Q. C., for the appellant.-The revising barrister was wrong in holding, that, under the circumstances, Jones was rated in respect of the premises occupied by him, and had paid the rates due. By the 1st section of the local Act, 4 & 5 Vict. c. lxxii., it is provided that

the owners of dwelling-houses of a yearly rent of less than 107. shall be rated instead of the occupiers. Compositions for rates are regulated by s. 2, which enacts, that, "if the owner of any dwelling-house within the said borough, the yearly rent or value whereof shall not amount to 10%., shall be desirous of paying a reduced rate for [*87 a year for the same, whether occupied or not, the overseers of the poor of the said borough, or any two of them, shall compound with such owner for the payment of the rates charged or chargeable thereon, in manner following, that is to say,-where the annual rent or value of the dwelling-house rated shall not amount to the sum of 77., at any sum not less than one-third of the amount of each rate, and at any sum not less than one-half of the amount of each rate where the annual rent or value of the dwelling-house shall amount to the sum of 71. and shall not amount to the sum of 107.: and all such compositions and reduced rates shall be entered in the rate-book of the said overseers, and shall be recoverable in like manner as poorrates are now by law recoverable." And s. 3 enacts that "the overseers of the poor of the said borough shall yearly hold a meeting for the purpose of entering into any such composition with such owners as last aforesaid, and the said overseers shall give seven days' notice of the time and place of every such meeting, in the same manner as notices of vestry meetings are now required to be given; the first yearly meeting for such purpose to be held within ten days after the publication of the first rate to be made for the relief of the poor of the said borough after the passing of this Act." By the 2 W. 4, c. 45, s. 30, an occupier may demand to be rated: but a parishioner has no right to appeal (under the 17 G. 3, c. 38, s. 4) against a rate, on the ground that he is not rated therein: The King v. George, 6 Ad. & E. 305 (E. C. L. R. vol. 33), 1 N. & P. 451 (E. C. L. R. vol. 36). The respondent was the owner of the three houses and the occupier of one. It never was the intention of the statute that a person so situated should have the benefit of the reduced rate. No new composition was entered into after the first year; consequently, there was [*88 no authority for continuing the *reduced payment. Besides, the improvements made therein during the year, as found by the revising barrister, altogether took the premises in the respondent's own occupation out of the operation of the 4 & 5 Vict. c. lxxii., if they ever were applicable. To entitle a party to be registered in respect of a qualification as occupant, he must be legally rated. Non-payment of an illegal rate operates no disqualification: Fox, app., Davies, resp., 6 C. B. 11 (E. C. L. R. vol. 60), 2 Lutw. Reg. Cas. 97. This man was not legally rated. Then, assuming that he was well rated, had he paid all the rates due? This depends upon the doctrine of appropriation, as to which the rule is thus laid down in Roscoe on Evidence, 9th edit. 447 (10th edit. 470),-"In general, the party who pays money has a right to direct the application of it; but, where money is paid to a creditor generally without any specific appropriation by the party paying, and the creditor has several demands against the party paying, he may apply the money paid to whichever of those demands he pleases: Hall v. Wood, 14 East 243, n.; Clayton's Case, 1 Meriv. 572." [BYLES, J.-There may be appropriation by conduct, as well as by words.] No doubt. But there must be