Scottish Court of Session Decisions

The following special case was stated in this appeal:—“At a Registration Court for the county of Wigtown, held by me at Stranraer on the 2d day of October 1868, under and in virtue of the Act of Parliament 31 and 32 Vict., c.48,entituled the ‘Representation of the People (Scotland) Act 1868,’ and the other Statutes therein recited, John Maitland, gentleman, Balgreggan, Stoneykirk, a voter on the roll, objected to Peter M'Gaw, joiner, Drumore, parish of Kirkmaiden, being entered or retained on the roll as a voter for the said county. The said Peter M'Gaw stood entered in the assessor's list of persons entitled to be registered as a voter as proprietor of dwelling-house and joiner's shop, Mill Street, Drumore, parish of Kirkmaiden, and county of Wigtown.

It was objected by the said John Maitland, that the said Peter M'Gaw's name did not appear on the valuation roll of the requisite value for last year; that he had not a sufficient title; and that the subjects specified in the assessor's list had not been of sufficient value for the requisite period.

The following facts were proved, viz.:—The voter, the said Peter M'Gaw, is and has been for a period of six calendar months next preceding the 31st day of July 1868 the proprietor of said lands and heritages, of the yearly value required by the 5th section of said Act, but the said subjects appear on the valuation roll for the year ending at Whitsunday 1868 in name of said Peter M'Gaw as such proprietor of the value of only £4, subject to deduction of 14s. 6d. of feu-rent, and in the valuation roll for the current year of the value of £6, subject to the same deduction.

I sustained the objection, and expunged the name of the said Peter M'Gaw from the roll. Whereupon the said Peter M'Gaw required from me a special case for the Court of Appeal, and in compliance therewith I have granted this case.

The question of law for the decision of the Court of Appeal is, Whether the said Peter M'Gaw is entitled to be registered, although the yearly value of his subjects does not appear from the valuation roll of the county for the year ending at Whitsunday 1868 to have been so much as £5.”

Lord Ardmillan said he thought this was a bad objection. There could not be a doubt that under the 5th section of this Act the party must have been owner of a subject of the yearly value of £5 during six months. It was not merely the present value, but the value in question must have existed for more than six months. But when the existing value appeared from the existing valuation roll, he thought that it was not in the power of the claimant or owner, on the one hand, nor of the objector on the other, to challenge the value stated in the valuation roll. That valuation roll went no farther back than Whitsunday last, and he did not see any necessity for making the valuation roll probatio probata of the value between the months of January and Whitsunday. In fact, it would be probatio probata of a matter that was contrary to the truth, because the man was in possession of a house of the true value from the 1st January. The valuation roll of 1867–68 was framed before the six months' possession commenced, and it would be a very strange thing to hold it as conclusive proof of the possession. He thought they should repel this objection.

Lord Benholme said that if it was necessary to prove the value by the two rolls, they would then require to prove more than six months' possession. By such a construction of the Statute they would change the period of possession required by the Legislature from six months to twelve months. He thought it would be a strained construction of the Statute to require that the possession should be proved by the two valuation rolls. He was therefore of opinion that this was a bad objection, and that the decision of the Sheriff should be reversed and the name of the claimant restored to the roll.

Lord Manor concurred.