Scottish Court of Session Decisions

The following special case was stated by the Sheriff:—“At a Registration Court for the burgh of Stranraer, 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., cap. 48, intituled ‘The Representation of the People (Scotland) Act, 1868,’ and the other Statutes therein recited, William Taylor, residing in Princes Street, Stranraer, a voter on the roll, objected to the name of David Guthrie, banker, 22 Church Street, Stranraer, being continued on the roll as a voter for the said burgh. The said David Guthrie stood enrolled as a voter in said burgh as tenant and occupant of dwelling-house and writing offices, 22 Church Street.

It was objected by Mr Guthrie that the notice of objection given to the assessor was not according to the form No. 4 of schedules of the Burgh Voters Act 19 and 20 Vict., cap. 68, as required by section 4 of that Act, inasmuch as it bears to be signed by a mandatory for the objector, and to be an objection to the voter being retained in the list of persons entitled to vote in the election ‘of a member for the Wigtown district of burghs.’

I found that the said notice of objection was addressed and headed ‘To the assessor of the Burgh of Stranraer,’ and was acted on by him as a notice applicable to this burgh. I also found that the separate notice of objection, served on Mr Gurthrie, was headed ‘Burgh of Stranraer.’ The said notices are hereto subjoined. I farther found that John M. Adair, by whom the said notices are signed, is a procurator in this Sheriff-court, and also holder of a written and duly tested mandate, signed by William Taylor, and dated 20th September 1868, authorising Mr Adair to sign and lodge notices of objection in terms of the Burghs Voters Act 1856, ‘to all and sundry parties entered, or claiming to have their names entered or retained on the registration of voters for the burgh of Stranraer, for doing which this shall be your sufficient mandate and authority.’

I repelled the objection to the said notice of objection.

The following facts were proved:—Mr Guthrie is, and has been for several years, agent at Stranraer for the Union Bank of Scotland, and has conducted the bank business in offices forming part of a house, in which he has also resided. The house also contains writing-offices for his separate law business; and these, and the part of the house in which he has resided, were wholly furnished by him. The whole premises belong to the bank. Mr Guthrie entered to the dwelling-house and writing-offices at Whitsunday 1852, having been appointed bank agent in February preceding. The writing-offices are on one end of the house, and the bank-offices on the other end—the law-offices and the hank offices having separate doors from a common lobby. An outside door incloses the doors to all the offices and house, and an inner door from the said lobby gives access to the dwelling-house alone. The bank safe is locked by means of a bolt connecting with a bedroom in the house above. The poor-rates have been assessed on the bank as owner, and on Mr Guthrie as tenant or occupier, the dwelling-house at £24, and writing-offices at £11, per annum—Mr Guthrie being in the assessment roll entered in the column headed tenants or occupiers. These and other taxes were formerly paid by Mr Guthrie, but for two or three years past have been repaid to him by the bank. He was appointed agent at a salary specified in a letter ‘with the house rent free.’ No other evidence was adduced regarding the terms of the appointment to the agency, or the terms on which Mr Guthrie has occupied the premises. No witness was adduced except Mr Guthrie himself.

I found the tenancy not proved, and sustained the objection, and expunged the name of the said David Guthrie from the roll. Whereupon the said David Guthrie, by his counsel, 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—(1) Whether the notice of objection is sufficient? (2) Whether the voter can be held to have been in the occupancy of the subjects on which he is registered as tenant, within the meaning of section 11th of the Act 2 and 3 William IV. cap. 65.”

The cases of Gilbert Brydone and George Agnew Main depended on the same questions of law.

Shand, for the appellant, argued that the claimant was not a servant in the proper sense; for even if their Lordships took it that he was dismissible at pleasure, he still could not be removed from the premises; there was nothing in the lease to show it.

Scott, for the respondents, said the specialty of the case was, that these offices were all parts and portions of a single house, the property of the bank. The appellant did not claim on the bank offices—that would be too extravagant a claim—but he tried to get enrolled on the dwelling-house and writing-offices, as if they stood on a different ground. They were all held on the same tenure,

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and under the same roof, shut in by one front door, and forming part of one tenement. These offices, under whatever tenure, were all held under the same tenure. The claimant was dismissible at the pleasure of the bank, and could be turned out of the bank at a moment's notice, and out of the other

Lord Manor said that these were all cases of bank-agents occupying premises in connection with the bank, which they got as part of their remuneration. They had felt these to be cases in the decision of which there was very considerable difficulty and great anxiety in drawing a line of distinction. The inclination of the Court was, as far as possible, to admit gentlemen holding such substantial qualifications as these parties did. They were all on the roll, and that was a circumstance somewhat favourable to them. They thought that the objector disputing the right to the name on the roll was bound to adduce evidence of some sort which should go to show that they ought never to have been there. In the case of Gilbert Brydone there was no evidence adduced as conclusively showing that Be held his position in such a precarious tenancy as not to entitle him to be continued on the roll. That was his opinion of the case of David Guthrie. As to the case of George Agnew Main, it was clearly proved that he was dismissible at pleasure; and he was disposed to affirm the decision of the Sheriff in the latter case, and reverse it in the cases of Guthrie and Brydone, and place their names on the roll.

Lords Benholme and Ardmillan concurred.