Scottish Court of Session Decisions

The following special case was stated in this appeal:—“At a Registration Court for the burgh of Wick, held by me at Wick on the 5th day of October 1868, under and in virtue of the Act of Parliament 31 and 32 Vict., cap. 48, intituled ‘The

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Representation of the People (Scotland) Act 1868,’ and the other Statutes therein recited, John Stewart, coach clerk, Bridge Street, Wick, a voter on the roll, objected to Thomas Adam, bank-agent, Bridge Street, Wick, being continued on the roll as a voter for the said burgh. The said Thomas Adam stood enrolled as a voter foresaid, as tenant and occupant of house, Bridge Street, Wick.

It was objected by the said John Stewart that the said Thomas Adam was not tenant of the said house. The said Thomas Adam is entered on the burgh valuation rolls for each of the years 1867–68 and 1868–69 as tenant and occupant of house in Bridge Street, Wick, of the yearly rent or value, the former year of £35, and the current year £25.

The following facts were proved:—The voter is joint-agent at Wick for the Aberdeen Town and County Banking Company, his father being the other joint-agent, but who does not live in the house. The terms of his appointment were verbally arranged between his father and the bank. The voter has no writing instructing his appointment as joint-agent, or his right to occupy the dwelling-house on which he is enrolled. The house is the bank's property, and the bank office is part of the same building. There was nothing empowering the bank to remove him at will, neither was there anything to the contrary, so far as the voter knew, in his agreement with the bank. He has an annual salary. The right to occupy the house is part of his remuneration. Is under no obligation to reside in it, but a good house being provided for agent, he resides there.

I repelled the objection, and continued the name of the said Thomas Adam on the roll. Whereupon the said John Stewart 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 Mr Adam is to be regarded in law as tenant?”

Shand, for the appellant, contended that Mr Adam was removeable from the house at pleasure of the bank.

Lord Benholme said that this case must follow the case of the bank-agent already decided. The onus lay upon the appellant to prove that the right of the bank-agent to the house in this case was of a defeasible character. That had not been done, and the judgment of the Sheriff must be affirmed.

Lord Akdmillan concurred, remarking that the case was different from that of a claimant, because the party here was upon the roll, and that was prima facie evidence of his possessing an indefeasible right to the tenancy of the house; and unless that prima facie case could be set aside by proof upon the part of the objector, the name must be retained upon the roll.

Lord Manok concurred.

The Court affirmed the judgment of the Sheriff, with expenses.