Scottish Court of Session Decisions

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Cite as: [1868] SLR 6_28_1, [1868] ScotLR 6_28_1

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SCOTTISH_SLR_Court_of_Session

Page: 28↓

Court of Session Inner House Second Division.

Dean of Guild Court, North Berwick.

Monday, October 26 1868.

(Before Lord Benholme, Ardmillan, and Manor.)

6 SLR 28_1

APPEALS FROM NORTHERN BURGHS.

JAMES ARCHIE.

Act. Clarke, Shand and Black.

Alt. Gifford and Mackintosh.

Subject_1Tenant and Occupant
Subject_231 and 32 Vict., c. 48, Â§ 3
Subject_3Burgh Franchise
Subject_4Dwelling-House—Part of a House—Interpretation Clause—Separate Rating. Held
Facts:

(affirming judgment of Sheriff)—(1) that the occupant of one-half of a house was occupant of a dwelling-house in the sense of the New Reform Act; (2) that not being separately rated to the relief of the poor he had not the qualification for the franchise under the 3d section of the Act.

Headnote:

The first case that came before the Court was that of James Archie, cooper, Cromarty, who appealed against a judgment of the Sheriff of Ross and Cromarty, respecting his claim to be admitted on the roll of voters. The following special case was stated by the Sheriff:—

“At a Registration Court for the burgh of Cromarty, held by me at Cromarty on the 5th day of October 1868, under and in virtue of the Act of Parliament 31 and 32 Vict. cap. 48, intituled ‘The Representation of the People (Scotland) Act 1868,’ and the other statutes therein recited, James Archie, cooper in Cromarty, claimed to be enrolled on the register of voters for the said burgh, as tenant and occupant of one-half of house in Church Street, Cromarty. The following facts were proved:—(1) That the claimant was, and had been for the requisite period, tenant and occupant of the premises in respect of which he claimed; (2) that there was an assessment for relief of the poor in the parish of Cromarty upon owners and occupants of lands and heritages; (3) that the claimant was not rated to the relief of the poor, either in respect of the premises occupied by him as aforesaid, or in any other character; (4) that the claimant had paid no poor-rates in respect of said premises; (5) that he had never been required to pay such poor-rates, either by demand-note or otherwise.

“Donald Mackenzie, nurserymen in Cromarty, a voter on the roll, objected to the said claim, on the grounds—(1) That a claim to be admitted to the roll as tenant and occupant of part of a house, was not a relevant form of claim; (2) that assuming the claim to be unobjectionable in point of form, the qualification on which the voter claimed was in the circumstances insufficient to entitle him to be enrolled.

“I rejected the claim on the ground stated in the second objection. Whereupon the said James Archie required from me a special case for the Court
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of Appeal; and in compliance therewith I have granted this case.

“The questions of law for the decision of the Court of Appeal are—(1) Whether a claim to be qprolled in respect of tenantcy and occupancy, or ownership and occupancy of part of a house, is sufficient in point of form? (2) whether, in the circumstances above set forth, the qualification claimed on was sufficient to warrant enrolment, keeping in view the provision of the 3d section of the Representation of the People (Scotland) Act, as explained by the 59th section of the said Act?”

No special description of the house being given—

Shand asked for a remit to the Sheriff, in order to ascertain the nature of the house.

Judgment:

Lord Benholme said he saw no ground for a remit. The man claimed as tenant and occupant of one-half of a house, and as such, under the interpretation clause of the Act, his title was good, provided he was separately rated to the poor. It was admitted that he was not so rated; therefore, under the terms of the Act, the claim as tenant of part of a house could not be sustained. He did not think this was a case for remit. The case in other respects, however, did not seem so clear as he thought his friends considered it, and he would suggest to their Lordships that, while they refused to remit, they should take time to consider the case, because it ran into other cases in which the rating clause was involved, and in which the question as to what formed part of a house would be discussed.

Lords Ardmillan and Manor concurred, and time was taken to consider the case.

The case was advised at a subsequent diet of the Court—

Lord Ardmillan said that the claimant in this case claimed to be enrolled as tenant and occupant of one-half of a house in Cromarty. The objection to his claim was that he only claimed as tenant and occupant of a part of the house, and that he was not separately rated. The Court had already expressed its opinion in more than one case that the occupant of part of a house had no right whatever to the franchise unless he could bring himself within the 59th section of the Act. By that section it was necessary that the occupant of a part of a house should be separately rated; and in this case the occupant was not so separately rated, and therefore the claimant could not get the benefit of that section.

Lord Manor was clearly of the same opinion. In this case the claimant only occupied part of the house, and, not being separately rated, he could not come under the 69th section of the Act, and was not therefore entitled to the franchise.

Lord Benholme concurred with their Lordships. The interpretation clause supposed that a dwelling-house might be a part of a house. One would be a little at a loss as to what was the true definition of a house in the sense of the Act, and he could conceive cases in which, on the abstract question, without considering the way in which houses were inhabited, it would be difficult to say what part of a building constituted a whole house. But it was quite clear that this Act of Parliament contemplated that the word dwelling-house for the purposes of this Act might be taken in a very large sense, and might extend to every part of a building, however small, that was occupied by one individual, provided the occupier was separately rated for the poor either in respect of the premises which he occupied, or as an inhabitant of the parish. The only question here was whether there was really not a whole house, and therefore they did not require the aid of the interpretation clause to make it a dwelling-house. On that point they had had a very able argument; but he had not been able to see this in a different light from their Lordships. He thought these premises were plainly a part of a house; and he could not help agreeing with their Lordships that they must affirm the judgment of the Sheriff.

The judgment of the Sheriff was accordingly affirmed.

Counsel:

Agents for Appellant— Hughes and Mylne, W.S.

Agents for Respondent— Mackenzie & Black, W.S.
1866