Kirkwood v M'Callum

Judgment Date02 November 1874
Date02 November 1874
Docket NumberNo. 1.
CourtCourt of Session
Court of Session
Registration Appeal Court. B.

Lord Ardmillan, Lord Ormidale, Lord Craighill.

No. 1.

FranchiseTenant and OccupantSub-lettingDemitting Possession.

Where the tenant of a house let it furnished for three months in the year, ceding possession to the sub-tenant, but leaving his servant in the house, whose wages he paid, held that he had ceased to retain such occupancy of the house as to entitle him to a vote.

James D. Kirkwood, South Portland Street, Glasgow, a voter on the roll for the county of Bute, objected to Malcolm M'Callum being continued on the roll of voters for the county, as tenant and occupant of a house in Marine Place, Rothesay, in respect that he had let the premises on which he was enrolled for three months during the year preceding the last day of July 1874, and had thus not been occupant for a year as required by law.

The facts as stated in the special case were that Mr M'Callum had let his house as a furnished house for the months of June, July, and August in the years 1873 and 1874, and had ceded possession to the persons to whom it was let, receiving as rent 29 for the three months of each year. Mr M'Callum left his servant in the house, but he resided elsewhere himself during the three months. The servant served the persons who took the house, but Mr M'Callum paid the servant's wages, and he also paid all rates and taxes on the house.

The Sheriff (Fraser) repelled the objection whereupon Mr Kirkwood appealed. The question of law submitted to the Court wasWhether M'Callum retained the occupancy of his house in the sense of the statutes, after he had let it as above set forth, his servant still continuing in it, and the whole rates and taxes being paid by him?

Argued for the appellant;It had been decided that a tenant of a dwelling-house in a county ceased to be in the actual personal occupancy thereof by letting it furnished.1 A tenant had, it was true; been

recently held to retain the occupancy of his house, notwithstanding of his having let rooms therein as furnished lodgings.1 But in the present case the tenant had ceded possession of the whole of his house, and it was obvious that his servant had been left in the house merely for the accommodation of the sub-tenant.

Argued for the respondent;The expression actual personal occupancy was not defined by the Representation of the People Act of 1868, but the 58th section thereof declared that the Act should be construed as one with the enactments for...

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