Scottish Court of Session Decisions

In this appeal the following special case was stated:—

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“At a Registration Court for the burgh of Dingwall, held by me at Dingwall on the 28th day of September 1868, under and in virtue of the Act of Parliament 31 and 32 Vict.. cap. 48, entituled ‘The Representation of the People (Scotland) Act 1868,’ and the other statutes therein recited, Alexander Cameron, a voter on the roll, objected to David Mackenzie, draper, Dingwall, being continued on the roll as a voter for the said burgh. The said David Mackenzie stood enrolled as a voter as proprietor of a house in the High Street, Dingwall.

“It was objected by the said Alexander Cameron, that the said David Mackenzie was not proprietor of the house in respect of which he was enrolled as a voter. The said David Mackenzie produced no writs or other evidence of his right as proprietor, but pleaded—(1) That no timeous notice of the objection had been given to the assessor; and (2) that he was tenant and occupant of the house or shop for which he was enrolled; and he moved the Court to correct his enrolment by entering his name on the register as tenant and occupant of a shop instead of as proprietor of a house in High Street.

“The following facts were proved:—(1) With regard to the notice, that the notice of objection was posted in Dingwall, duly addressed to the assessor at Inverness, in time for transmission to Inverness by the latest post on the 21st September; (2) that the envelope enclosing the objection bore the Inverness post-mark of the 21st September, but the same was not delivered at the assessor's office until the first delivery of letters in Inverness on the morning of the 22d September. And with regard to the merits of the objection, it was admitted—(1) That the voter was not proprietor of the house for which he stood enrolled; and (2) that he was tenant of the said house, and occupied the same as a shop.

“I sustained the objection, and ordered the name of the said David Mackenzie to be expunged from the roll. Whereupon the said David Mackenzie required from me a special case for the Court of Appeal, and in compliance therewith I have granted this case.

—The questions of law for the decision of the Court of Appeal are—(1) Whether the notice of objection was timeously transmitted to the assessor in terms of section 4 of the Registration of Voters (Scotland) Act 1856, and the 20th section of the Representation of the People (Scotland) Act 1868? (2) whether the party, being truly not proprietor of the subject for which he was enrolled, was entitled to remain, or to be continued on the roll in that character? and (3) whether it was competent to the Sheriff, and whether he was bound, to correct the enrolment of the voter, in terms of the motion made by him to that effect, as above set forth?”

MACKINTOSH addressed the Court in support of the appeal, maintaining that “the notice was not timeously given, because it was not posted in time for delivery on the 21st September. He also contended that the Sheriff had power to correct the description of the claim; and that therefore the claim ought to have been admitted.