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 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 Gilbert Brydone Rutherford, Captain, R.N., Murchison Street, Pulteneytown, being continued on the roll as a voter for the said burgh. The said Gilbert Brydone Rutherford stood enrolled as a voter foresaid, as tenant and occupant of house and pertinents, Murchison Street, Pulteneytown.

It was objected by the said John Stewart that the said Gilbert Brydone Rutherford was not tenant. The said Gilbert Brydone Rutherford is entered in the burgh valuation-roll for each of the years 1867–1868 and 1868–1869 as tenant and occupier of house and grounds in Murchison Street, Pulteneytown, of the yearly rent or value of £40.

The following facts were proved:—The voter, who is agent and factor at Pulteneytown for the British Fisheries Society, occupies the house referred to, and which is the property of his constituents, the Society. The furniture of it is the Society's almost entirely. He has no written agreement with the Society as to its occupation. Before his appointment as factor, he wrote asking what the emoluments were, and the secretary informed him by letter that the salary was so much a-year of money, with right to occupy a dwelling-house which had been built for the agent. He had no other agreement, and that letter was lost. Having been appointed upwards of three years ago, he has since possessed the premises, but the Society pays poor-rates and all taxes. The occupation of the house is not necessary for the discharge of his duties, although one of the rooms is an office in which books and papers of the Society lie; the duties might he done though he lived in any other house in the neighbourhood; he has a commission as factor, but no agreement to hold office for any particular period; he entered on his duties and to the house in June 1865. His predecessor had died in that month.

I repelled the objection and continued the name of the said Gilbert Brydone Rutherford on

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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—Is Captain Rutherford to be regarded in law as tenant?”

The Court affirmed the judgment of the Sheriff, holding that the tenancy was not of a sufficiently precarious nature as to disqualify.