1868 at whose instance Wescomb's name had been struck off the WESCOME'S list.

CASE.

Lopes, contrà, submitted that the objecting burgess had no locus standi.

THE COURT decided that the objecting burgess was entitled to shew cause in the absence of the mayor, although the rule was directed to the mayor alone, and he did not appear. The Court also expressed an opinion that it would in general be well in cases such as this to give notice of the rule to the objecting burgess as well as to the mayor.

Charles. The only question is whether Wescomb is an inhabitant householder. His residence was in London, and there is not sufficient evidence to shew that he had any second residence. In Whithorn v. Thomas (1), a freeman of T. had a bedroom there, but resided more than seven miles from T. He slept in this bedroom twelve times in six months. It was held that he did not reside at T. during that six months. Wescomb's residence in Exeter is, moreover, colourable. It is for the purpose of entitling himself to vote.

Lopes, in support of the rule. The residence of Wescomb was bonâ fide for the purpose of looking after his business, and not merely colourable. Even if the object of the residence be to obtain a vote, that does not detract from the right of the party: Whithorn v. Thomas. (1) Wescomb has spent upwards of three months, at least, at Exeter since Michaelmas, 1867, in attending to his business there. This is sufficient evidence that he has, in fact, two residences, one in London, and the other in Exeter. Lord Kenyon, C.J., says, in Rex v. Sargent (2): "It happens perpetually that persons have different places of abode, in some of which they reside, more or less, as suits their convenience. Was it ever doubted that a fortnight's residence, or less time, did not as much constitute a residence as any greater portion of time ?" In Rex v. Duke of Richmond (3), an information in the nature of a quo warranto was granted to try whether the residence was bonâ fide. There the Duke of Richmond, who did not appear to have been resident in the town before, took a lodging just on the eve of (1) 7 Man. & G. 1. (2) 5 T. R. 466, 468. (3) 6 T. R. 560, 561.

CASE.

the election, and slept there two or three times in his way to and 1868 from the camps in the neighbourhood. This, however, would clearly WESCOME'S not be a sufficient residence. The principle upon which Whithorn v. Thomas (1) was decided is in favour of the present rule, although the actual decision was that there was no residence.

BLACKBURN, J. The real question in this case is whether or not Mr. Wescomb was an inhabitant householder in Exeter. He appears to have had all the other necessary qualifications. If he was, in fact, inhabiting the offices in Gandy Street, that is sufficient. There is no strict or definite rule for ascertaining what is inhabitance or residence. The words have nearly the same meaning. Sleeping once or twice in a place would not constitute inhabitance. There is no precise line to be drawn. It is always, if the inhabiting is bonâ fide, a question of more or less. The question is whether there has been such a degree of inhabitance as to be, in substance and in common sense, a residence. When a person has a country and a town house, it is a mere question of fact whether he has two, or only one residence. When, as in this case, a man leaves one residence to go elsewhere to transact real business, whether he has two residences depends on quantity and amount. It is a pure question of fact. As the residence was clearly not frivolous or merely colourable, I think that the amount of residence was sufficient to entitle Mr. Wescomb to a vote, and there is, therefore, no ground for discharging the rule.

HAYES, J., concurred.

Rule absolute. (2)

Attorney for prosecution: J. Elliott Fox, for H. W. Hooper,

Exeter.

Attorneys for objecting burgess: Coode, Kingdon, & Cotton, for Thomas Floud, Exeter.

(1) 7 Man. & G. 1.

(2) See the next case.

1868 Nov. 25.

THE QUEEN v. THE MAYOR OF EXETER.

DIPSTALE'S CASE.

Municipal Corporation Act (5 & 6 Wm. 4, c. 76), s. 9-Burgess List-" Inhabitant
Householder "-Joint Occupation.

room.

A. occupied a house in Exeter jointly with his partner, and carried on his business there. He had the exclusive use of a furnished bedroom and sitting He resided more than seven miles from Exeter. He visited Exeter every day except Sundays, to attend to his business, which he always transacted at this house, and he sometimes took his meals there. His affidavit stated that he "sometimes" slept there:

Held, that a joint occupation is a sufficient occupation under s. 9 of the Muni-cipal Corporation Act to entitle a man to be placed on the list of burgesses; but, Held, that A. did not inhabit the house in Exeter so as to constitute him an inhabitant householder under that section.

RULE calling upon the Mayor of Exeter to shew cause why a writ of mandamus should not issue, commanding him to admit Edward Dipstale into the place and office of one of the burgesses of the said city. (1)

Dipstale had carried on the business of a house decorator in Exeter during the last twelve years in a house of his own in Paul Street, where he also resided. In June, 1866, he went to reside at Exmouth, about ten miles from Exeter, but he retained a furnished bedroom and sitting room in his house in Paul Street, which he had occupied up to the present time. He was in Exeter every day, except Sundays, attending to his business. He usually returned to Exmouth in the evening.

Dipstale's affidavit stated, "Sometimes my business causes me to remain in Exeter overnight, and sometimes I require to leave Exeter by an early train in the morning, in either of which cases I sleep in the house in Paul Street." There was no further evidence as to the number of times that he slept in Exeter during the past year.

Dipstale always transacted his business at his house in Paul Street, and often took his meals there when in Exeter. The bed

(1) It would appear that the rule was in the wrong form, and that it ought to have been " to insert the name

of Edward Dipstale on the burgess roll" under 7 Wm. 4, and 1 Vict. c. 78, s. 24.

room and sitting room were so situated that if the doors were locked

1868

CASE.

the rooms would be private and distinct from the other parts of DIPSTALE'S the house, and the occupier of the other parts of the house would not be inconvenienced by the doors being so locked. The house was occupied jointly by Dipstale and his brother, who was his partner in his business, and they were jointly rated for the house. Dipstale's name had been on the list of burgesses, and was removed on an objection being made by another burgess that he was no longer an inhabitant householder in Exeter.

Charles shewed cause (1) on behalf of the objecting burgess. (2) This rule should be discharged; first, because Dipstale was not an occupier within the meaning of s. 9 of the Municipal Corporation Act, as he has only a joint occupation: secondly, because he is not an inhabitant householder. A joint occupation is not sufficient to entitle a person to be placed upon the burgess list: Alcock's Registry Cases, p. 2; Chitty's Statutes, vol. i., p. 963, 3rd ed.; Rawlinson's Municipal Corporation Act, p. 17, 4th ed.

THE COURT intimated that they had no doubt that a joint occupation was sufficient.

Secondly, there is no sufficient evidence of residence. It does not appear how often Dipstale actually slept in Exeter. His affidavit would be satisfied if he slept there twice.

Lopes, in support of the rule. This is a mere question of fact whether or not there was an actual residence: Reg. v. Sergent (3); Reg. v. Richmond (4); Reg. v. Boycott (5); Whithorn v. Thomas. (6) This is a stronger case than that of Wescomb's. (7) Here Dipstale was in Exeter every day except Sundays, and he sometimes slept there. This is amply sufficient to constitute inhabitance.

BLACKBURN, J. This rule must be discharged. The question is whether Mr. Dipstale is an inhabitant householder. It is a mere question of fact whether he is so or not. In all these cases it is a question of degree, more or less. There is no precise line to be drawn. A person may inhabit a place without sleeping

(1) In the Bail Court, before Blackburn and Hannen, JJ.

(2) See preceding case, ante, pp. 110, 112. (3) 5 T. R. 466.

(4) 6 T. R. 560.

(5) 14 L. T. (N.S.) 599.

(6) 7 Man. & G. 1.

(7) Ante, p. 110.

1868 DIPSTALE'S CASE.

there, or he may sleep there without inhabiting it. The fact
that a person sleeps in a place is generally a very important
ingredient in deciding whether he inhabits it, but it is not
conclusive. I agree with what Maule, J., says in Whithorn v.
Thomas (1); and this seems to me to be very much against
Mr. Dipstale. The question there was whether there was a resi-
dence in a borough where the claimant slept twelve times in six
months, and the court thought there was not. Here the mayor
has decided as a fact that Mr. Dipstale was not an inhabitant of
Exeter, and it rests on Mr. Dipstale to shew that this decision is
wrong. The former case of Mr. Wescomb (2) was much stronger
than this. Mr. Wescomb was shown to have been in Exeter,
and to have slept there, for almost ten weeks in the year. There
was, therefore, in that case sufficient ground for questioning the
decision of the mayor. Here there is only the occupation of offices
where Mr. Dipstale sometimes slept. If he slept there twice since
he left Exeter, the terms of the affidavit would be satisfied.
There is nothing more in his affidavit on this point.
an insufficient ground for saying that the mayor is wrong.

This is

HANNEN, J. I am of the same opinion. Mr. Lopes has failed to shew that the mayor was wrong. It is not sufficient to say that Mr. Dipstale sometimes slept in Exeter. This expression would be satisfied if he had slept there twice. The facts, therefore, are not sufficiently stated. The facts which are relied on should be brought before the court upon the affidavits.

Rule discharged.

Attorney for prosecution: J. Elliott Fox, for W. H. Hooper, Exeter.

Attorneys for objecting burgess: Coode, Kingdon, & Cotton, for Thomas Floud, Exeter.

(1) 7 Man. & G. 1, 3.

(2) Ante, p. 110.