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Equitable freeholds.

and the vendor, at the time of the Election,' was in possession of part of the premises, his vote was allowed.(a)

It may happen, that the question as to who is entitled to vote depends not upon which of two persons is the trustee, and which the cestuiquetrust, but upon which of two persons is the cestuique trust, the legal estate being clearly in neither of them. As where a father devised his estate to trustees to pay 6s. a week to John, his eldest son, an ideot, and the remainder to the second son Thomas, who was to be put into immediate possession by the trustees, on giving security to pay the 6s. a week, He had not given security, nor had the trustees put him into possession. The Committee held that the second son, Thomas, had no such interest in the premises as entitled him to vote, but that John, the elder brother, had a right to vote in respect of the premises devised to the trustees.(b)

An estate being devised for life, remainder to trustees to pay debts and legacies, and the surplus to be divided amongst A. B. and C. The tenant for life died, the estate had not been sold. It was objected, that the remainder men took only an interest in a personal estate. It was an. swered, they took an equitable interest in the freehold estate immediately upon the death of the tenant for life, and it was incumbent on those who impeached the vote, to shew that the land had been sold, and converted into money. The vote was bolden good.)

Where the devisee of an estate charged with an annuity agreed by parol to give up the estate in satisfaction of the annuity, and had put the annuitant into possession; it was held the annuitant had a right to vote.(d) So where a devisee, in trust, to pay legacies, refused to take the land subject to the trust, and the legatees, with his consent, took possession of certain parcels in satisfaction of their legacies ; one of the legatees had been in possession of his freehold in this way for five years, and his vote was allowed. ()

But a mere authority to receive the rents unconnected with interest in the land, gives no right.

Where a purchaser, at the time of the le, executed a bond to per the vendor to receive the rents and profits for life, the vendor's vote was rejected, (f)

3) Middx. 2 Peck. 107. (6) Gloster, 130-1. ' 1 Heyw. 107. (C) 2 Peck. 106.

(d) 2 Lud, 440. (e) 2 Lud. 424.

Gloster, 1834.


Where an estate was devised to a man who had never re- Equitable ceived rent for it, but the rent had been paid to a person from whom the tenant received possession shortly before the Election, the devisee was allowed to vote, for it was presumed that the person who received the rent was only tenant to the devisee.(a)

One seised of the freehold, may so have divested himself of all control over the rents and profits of the estate, as to have lost the franchise. As where a man before marriage, by deed between himself, his intended wife, and R. V. covenanted not to intermeddle with the rents and profits of her estate, which were to be received by R. V. for the wife's use, and she was to have the sole disposition by devise, or otherwise, he joining in all necessary acts ; his vote was rejected.(6)




The estate must be “ of the clear yearly value of 40s. Value of the “ over and above all rents and charges payable out of, or “ in respect of the same.” It was resolved in the Bedfordshire case, that this value is to be estimated by the rent which a tenant would give, and not by what the owner, occupying the land himself, might possibly derive from it.(0) But particular cases may occur, where other modes may be resorted to, of proving the annual value, besides the rent actually paid.

The proportion of assessment to the public taxes, church rates, and parish duties, was once made the criterion of value by the legislature, 10 Ann. C, 23, s. 2. 12 Ann, st. 1. C. 5. But these statutes not being found to answer their purpose, were repealed, in so far as they relate to this point.

With respect to the nature of the rents and charges, the decisions of Committees have been contradictory. Some have holden, that where the interest payable upon a mortgage, reduces the annual value of the estate to the mortgager in possession, below 40s, he is not entitled to vote.(d,

The Cricklade Committee held the contrary, both as to a

2 Lud. 431. (6) 2 Bedfords, Lud. 422.

© Bedfords, 2 Lud. 450. See also Middlesex, 2 Peck. 204.

(1) Bedfords, 2 Lud. 450. Buck. ingham's. Ibid, 471. Middlesex, % Peck, 203.,

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Annual value. mortgagee and a devisee, where the estate is devised,

charged with the payment of debts, &c. reducing its
annual value below 40s. (9) And Mr. Serjeant Heywood
seems to think the words of the stat. 7 8 W. 3. c. 25,
support the Cricklade determination, since the Act does.
not appear to look to the surplus value of the rents, but
to the right of voting, whether it shall be in the mort-
gagee, who has the legal estate, or in the mortgager, who
has the possession.(6) The last determination, however,
upon the subject is against the right.(*)

And the opinion, that a mortgaged estate thus reduced in
annual value, would not confer the right of voting, was re-
cognised by a statute since repealed, viz. 28 G. 3, c. 36.
S. 6. 9.

Upon a special case on the Game Laws, it was holder by the K. B. that where a mortgage had reduced the annual vaľue of an estate, as received by the owner to his own use, below 1001. his qualification to kill game was de. feated.(d)

But there must be an actual charge on the estate, reducing it below the requisite value, to defeat the qualification. Where the annual value of the estate is more than. 40s. above the interest of the money borrowed, a surrender of the possession, and of the rents, for the purpose of clearing off the principal sum secured, as well as arrears of interest, will not defeat it.() Although a mortgage exceed the value of the particular estate for which the elector votes, if there are other estates conveyed in mortgage by the same deed, the rents and profits of which are beyond the: interest of the sum borrowed, bis vote is good.(1)

Several questions arose in the Bedfordshire case, as to the diminution of the annual value in respect of dower ; where the widow had not received, nor claimed it for a considerable length of time, the Committee presumed it to have been released.)

The vote will be rejected or received, according to the actual value of the tenement, as measured by the rent, not

as it may appear from documents, which either by design, False receipts

or negligence, vary from the real rent. As where the voter
received 508. a year for his freehold, though in order to

given to de ceive tax as. sessors.

a) 2 Lud. 470.
(6) 1 Heyw. 148.
() Middlesex, 2 Peck. 103.
(d) Wetherell v. Hall, 1 Heyw. 145.

© Middlesex, 2 Peck, 103.
(1) Ibid.
(8) 2 Lud. 450.


no evidence

The freehold

diminish the taxation, and deceive the assessors, he had Annual value. given receipts to the tenants for 30s. 'only, his vote was holden good.(a) So where, in the books of assessment, the freehold was assessed under 40s. the Committee held,“ that “no proof whatever of the actual value of the freehold Assessment “ could arise from entries in the books of assessment.”(b) of value. If the freehold given in be of the requisite value, the whole of it deed not be assessed. But it must appear upon the poll, that the freehold, in right of which the vote must appear is given, is of sufficient value. And, accordingly, it was of the requi. entered on the minutes of the Bedfordshire Committee, that, “ If a voter gives in a freehold on the poll, which is not

worth 40s. a year, the vote is to be considered as a bad

one, notwithstanding he may be possessed of other free. “ holds amounting to more than 40s.” (d)

“ No public or parliamentary tax, county, church, or Public taxes. “parish rate, or duty, or any other tax, rate, or assess“ ment, whatsoever, to be assessed or levied upon any “ county, division, rape, lathe, wapentake, ward, or hun. “ dred, is, or shall be deemed or construed to be any

charge payable out of, or in respect of any freehold 56 estate within the meaning and intention of this Act, or of " the oath, &c." The Bedfordshire Committee held, that under this clause, “ the parochial taxes," when paid by the tenant, do not constitute a part of the rent paid by him for the land, and are not to be considered as part of the income in right of which the owner votës;($) and the same, with respect to the window and house tax';(8) but a different determination was made as to the land tax, the payment of which was considered as forming part of the rent, or annual value. (h) Nor will the right of voting be defeated be. cause a sum is to be laid out in repairs, which reduces the value below 408.(i)



Various Acts have been passed to prevent the fraudulent Year's pos.

session, creation of occasional votes. The first statute directed to

Bedford's, 2 Lud. 448. () Middlesex, 2 Peck, 105. () Bedford's, 2 Lud. 446. (!) 2 Lud. 444.

18 G. 2, c. 18, s. 6.

(J) 2 Lud. 475.
(5) Ibid. 476.
(6) Ibid. 447 476.
() Ibid. 448

Year's pos: session.

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this object, and which was passed shortly after the Revo-
lution, is the 7 and 8 W.3, c. 25, s. 7; it enacts,

66 That
“ all conveyances of any messuages, lands, tenements, or
“ hereditaments, in any county, city, borough, town corpo-

rate, port, or place, in order to multiply voices, or to “ split or divide the interest in any houses or lands among “ several persons, to enable them to vote at elections of “ members to serve in Parliament, are hereby declared to “ be void, and of none effect, and that no more than one

single voice shall be admitted for one and the same “ house or tenement," and by. 53 G. 3, c. 49, is extended to devises by will.

The House of Commons once resolved, that all tenements divided since the passing of this Act of King William, should be considered as split to multiply voices.(a) Another rule was afterwards contended for before the Haslemere Committee, viz. that from the time the division of freeholds becomes very general in any place, they are to be considered as falling within the stat. (6) The first of these two rules is obviously too absurd to be carried into practice, and the second too vague.

It is indeed impossible to establish any general rule on this point which is not open to great inconvenience, and it appears best to consider every question of a divided freehold under its own circumstances, and presume the transaction a fair one till the contrary is proved.

The next statute to prevent these colourable conveyances, is the 10 Aon. c. 23, s. 1, which declares, that all collusive grants for qualifications to vote, shall vest in the grantees absolutely, discharged of any condition to reconvey, or defeat the grant, and by 18 Geo. 2, c. 18, s. 5, no vote is good in right of any freehold estate, fraudulently granted on purpose to give the vote. Which provisions are only declaratory of the common law. (TM

These statutes, as might bave been imagined, were found inefficacious, it being almost impossible in the generality of cases to distinguish whether the conveyance was colourable or not. The legislature therefore at length undertook to define what should be considered as a fraudulent conveyance, and required, except in particular cases,

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Whitchurch, 1708. 16 Journ. 52.
Heyw. 158.

(6) 1 Heyw. 159.
(°) 1 Doug. 223. 1 Heyw, 165.

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