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., cap. 48, intituled ‘The Representation of the People (Scotland) Act 1868,’ and the other Statutes therein recited, Charles M'Lurg, Newton-Stewart, claimed to be enrolled on the Register of Voters for the said county as liferent proprietor of dwelling-houses and pertinents, Queen Street, Newton-Stewart, parish of Penninghame.

The subjects claimed on are vested in feudal form in trustees, but under a diraction to them ‘to allow my brother, Charles M'Lurg’ (the claimant) ‘the rents of the dwelling-house, garden, and premises herein-before described and conveyed to them,’ during ‘his life, after deduction of the feu-duty, and all rates, taxes, and charges payable for or in respect of the same, and at his death the same to be sold.’

It was proved that Charles M'Lurg, the claimant, has received the rents of the premises claimed on, subject to public and other burdens and charges since November 1866, the date of the death of the claimant's brother William, who in his trust-settlement gave the above direction. The subjects appear in the Valuation Roll of 1867–8 under the names of Charles and James M'Lurg, his brother, as proprietors of the value of £22 odds; and in the Valuation Roll of the current year under the name of Charles M'Lurg alone as proprietor, at the value of £17,16s. David Martin, notary-public, Newton-Stewart, a voter on the roll objected to the said claim, on the ground that the claimant was not owner of the subjects claimed on in the sense of sect. 7 of the Act 2 & 3 Will. IV., cap. 65, or of sect. 5 of The Representation of the People (Scotlan3) Act 1868, in respect that his right under the settlement of William M'Lurg, and the other deeds produced was moveable, and that he had no real right in the subjects.

I admitted the claim. Whereupon the said David Martin 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 claimant is owner of the subjects in the sense of the said sections of the said recited Acts, or either of them?”

The Court reversed the decision, and ordered the name to be expunged from the roll.