County Franchise-Valuation-Roll-17 and 18 Vict. c. 91, sec. 34.- Girvan v. Ailsa Craig was let for £30 a-year to two joint tenants, with a cottage Campbell. thereon which was worth £7, 10s. a-year, together with the right to kill wild fowls, wild goats, and rabbits, under certain restrictions as to quantity and seasons. There was reserved to the landlord full right, without any qualification and without compensation, "to shoot, kill, and carry away fowls, goats, and rabbits" from the Craig. Ailsa Craig was totally incapable of agricultural occupation. It was entered in the valuation-roll as land, value £30 a-year, and the tenants were each entered as voters on the assessor's list as "joint tenant, land, Ailsa Rock." Held (diss. Lord Ardmillan) that the valuation-roll was conclusive; and objections, that the accessory right not being heritable, its value must be deducted; and that the landlord's reserved right was such as to give him control over the value, and therefore over the qualification to vote, repelled.

B.

ANDREW GIRVAN was entered in the assessor's roll for South Ayrshire Registration as Andrew Girvan, fisherman, Maidens, joint tenant, land, Ailsa Rock. Appeal Court. It was objected by John Campbell, Maybole, a voter for South Ayrshire, that Andrew Girvan was not entitled to be entered as a voter on the roll, in respect that the right or rights held or possessed by him were not "land," nor in the nature of heritable right, at least not to such an extent as to confer upon him, as joint tenant, a sufficient qualification.

Andrew Girvan produced in support of his right to be a voter on the roll the missives of set of Ailsa Craig for a term of years between the Marquis of Ailsa as proprietor, and himself and his brother William Girvan as joint tenants, dated 20th and 23d October 1873.

There was a cottage on Ailsa Craig of the value of £7, 10s. a-year formerly used for sea-bathing quarters, but which was to be possessed by the lessees exclusively as tenants; and the tenants accepted of this cottage as in a state of complete repair, and bound themselves to keep it and leave it in a like state. When the missives were entered into Ailsa Craig was stocked with goats, rabbits, and wild fowl. It was not adapted for the grazing of

Α

No. 1.

Nov. 1, 1875.
Girvan v.
Campbell,

sheep and cattle. Andrew and William Girvan never had stock of any kind of their own on Ailsa Craig. The goats upon it were the property of the Marquis of Ailsa. By the terms of the missives "the tenants are to have power to kill fowls, goats, and rabbits on the Craig, but so as not to reduce the existing stocks thereof, and no fowls, goats, or rabbits are to be killed excepting during the proper seasons for doing so, and they are not to allow other parties to do so. They are also to have the privilege of fishing in the sea around the Craig. They may also prepare and sell blocks for curling stones, but in doing so they are never to employ more than one man in addition to themselves."

It was for the exercise of these rights, along with the possession of the cottage, that the rent stipulated in the lease, viz., £30, was payable. This sum of £30 was entered in the valuation-roll as the annual value of Ailsa Craig. The rights of the said tenants were burdened in the missives with the following reservation, viz., full power to Lord Ailsa "and his friends to land upon the Craig, and to shoot, kill, and carry away fowls, goats, and rabbits thereon; and the tenants are to have no claim for compensation, on any ground whatever, for the animals so killed and carried away."

There was no evidence adduced of the separate values of the rights to kill fowls, goats, or rabbits, or of the privilege of fishing, or taking blocks of stone for making curling stones.

The Sheriff (N. C. Campbell) sustained the objection.

Andrew Girvan appealed, and argued;-The valuation-roll was conclusive on the question of value.* It was not competent to lead evidence to controvert it. Even if it was competent it was for the objector to lead such evidence. And as it was not alleged that this lease was not bona fide, all that he could possibly succeed in proving was that these tenants had agreed to give a higher rent than the subject was worth. That was not a ground upon which the claim could be rejected.

Argued for the respondent;-The question here was how far the rent of £30 was paid as the value or for the possession of the heritable subject, and how far as the value of the moveable rights and privileges that went along with it. It was true that the valuation-roll was conclusive of the value of "lands and heritages," but if it could be shewn that the subject of the lease was not all heritable, it was competent to separate it into its component parts, and if it was shewn that a substantial part was not heritable then it fell on the tenant to prove that there remained enough to confer the franchise. Here the Sheriff had rightly held that the accessory right of shooting wild fowls, goats, &c., was not heritable, though of substantial value, and that there was sufficient before him to shew that what remained was not of value to confer the franchise upon two joint tenants.

LORD ARDMILLAN.-I never saw a case like this before. The objector may perhaps have so stated his case as to put himself out of Court. But that this is a claim to the franchise of the most extraordinary character ever heard of I cannot doubt.

* 17 and 18 Vict. c. 91, Valuation of Lands (Scotland) Act, 1854, sec. 34."In all questions and proceedings under any Act of Parliament relating to the franchise, or to the representation of the people in Parliament, it shall be sufficient to refer to an entry in the valuation-roll in force for the time, or last in force under this Act in any county or burgh, and such entry shall be received and taken in all such questions and proceedings as conclusive proof that the gross yearly rent or value of the lands or heritages specified therein is at the date of such reference, and has been from the commencement of the year to which such valuation-roll applies, of the amount therein set forth."

The subject in

No. 1.

Nov. 1, 1875.

respect of which the claim is made is a wild and rugged rock in the open sea. There can be no cultivation and no grazing; and of course the so called tenants have and can have no stock, the rock supporting no living Girvan v. creature except a few wild goats, a few rabbits, and a multitude of wild sea-fowl. Campbell. There is a small house of the value of £7, 10s. a-year upon the rock, but no

other dwelling. This subject was in the autumn of 1873, for the first time, let at this rent of £30 a-year, and the two joint tenants now come forward and claim to be placed on the roll of voters as tenants and occupants.

The question is, do these men occupy as tenants in the sense of the Act? It is not enough that they pay rent. That may be easily arranged. Nor is it enough that the subject let to them is in a certain sense heritable. The subject must be one capable of tenancy, susceptible of occupancy by tenants. Here it is incapable of being cultivated, incapable of being grazed, incapable of being possessed in any of the ordinary modes of possession. This rock is nominally let, but really, except the house, which alone cannot sustain the two claims, the thing let in lease is really the privilege of killing some goats and the wild sea-fowl and wild rabbits, admittedly feræ nature, that are found upon the rock. The privilege of killing game does not sustain the franchise, though in certain circumstances it may enhance the value of another substantial subject of lease. But these wild sea-fowl are not game. Then the right-such as it is— to kill these sea-birds is given professedly to the tenants and then reserved to the landlord. While the tenants are to have "power to kill," the landlord reserves "full power to kill." The tenants are to have the privilege of killing under restriction and limitation, and only during certain seasons, and so as not to reduce the existing stock, while the landlord is to have the full and unrestricted power of killing without the tenants having any claim to compensation. Thus there is the form without the substance of a tenancy, since more is reserved than is communicated. I do not enter into the question whether or not the landlord is ever likely to exercise his reserved power to its extreme extent. He may, or may not, according as the tenant pleases or displeases him. But he has taken power to do so. He has introduced into the lease this reserved power of depleting and destroying at his pleasure the only subjects which give it value. By this, he has reserved to himself the power of controlling the franchise, of preserving or destroying it at will. Now, to make a tenant thus dependent upon the mere will or caprice of his landlord for the continuance of the franchise, is, in my opinion, fatal to a free franchise, and must make a lease of this nature altogether a bad qualification. To hold otherwise would, in my opinion, be contrary to the principles of representation and to the constitutional theory of the franchise.

But apart from this, the privilege of killing the wild sea-birds, which are not game and are not property, cannot sustain this claim.

LORD ORMIDALE.-I shall confine myself to the facts as stated in the case submitted to the Court, for by these facts alone are we entitled to determine the rights of parties.

I commence with this, that the subject founded on as a qualification stands in the valuation-roll as worth £30 a-year, and that the claimants as tenants pay that rent for it. Two votes depend upon this qualification, and the value is sufficient to sustain them both. I find, further, in the Valuation Act of 1854, section 34, that "in all questions and proceedings under any Act of Parliament.

Nov. 1, 1875.
Girvan v.
Campbell.

No. 1. relating to the franchise, or to the representation of the people in Parliament, it shall be sufficient to refer to an entry in the valuation-roll in force for the time, or last in force under this Act in any county or burgh, and such entry shall be received and taken in all such questions and proceedings as conclusive proof that the gross yearly rent or value of the lands or heritages specified therein is at the date of such reference and has been from the commencement of the year to which such valuation-roll applies, of the amount therein set forth." Nothing can be more distinct and conclusive than this as to the value of the subjects. It was quite possible, however, that though £30 a-year was the value of the subjects when the valuation-roll was made up, yet the tenant might have parted with a portion of them by the time the Sheriff came to deal with the assessor's list. If that had been the case a good objection to the qualification might on that ground have arisen; and if the objector succeeded in establishing it, the onus of proving that enough was left to support the claim might be shifted over upon the claimant. But it is not said here that the tenants have parted with any portion of their holding. No such objection has been taken. It is merely objected that the subjects are not of the requisite value, but to this objection the valuation-roll affords a conclusive answer. It has been suggested, however, that the landlord under his reserved power might render the tenants' holding worthless, and therefore that their alleged qualification is exposed to the objection of defeasibility. But (1) no such objection as that of defeasibility is to be found in the case. (2) It is not to be presumed that the landlord would attempt so to destroy the right he had, for a valuable consideration, given to the tenants; and (3) if he made any such attempt I cannot doubt that he could be interdicted from so acting in fraudem of the lease. But it is not said that the landlord has, hitherto at least, done anything to prejudice the tenants' right, and what we have to consider is, what the tenants were in possession of during the qualifying year. Independently of all that, it must, I think, be assumed that, when £30 a-year of rent was agreed to be given for the subject, the tenants had taken into account the landlord's reserved right, and made allowance for it,

In no view, therefore, can I sustain the objection of insufficient value, or the objection of defeasibility either, supposing it had been raised in the case, which I do not think it has. The result is that, in my opinion, the Sheriff has fallen into error, and that his judgment must be reversed.

LORD CRAIGHILL.-I also think that this appeal ought to be sustained.

The appellant is one of two joint tenants; but the subject of the tack is said by the respondent to be peculiar,-because it is a steep rock, is surrounded by the sea, and possesses neither agricultural capacities, nor even pasture grounds on which a few cattle or sheep could be supported. Be it so. There must nevertheless be some attractions—something on account of which Ailsa Craig is considered worth the taking upon tack-worth that which the tenants have become bound to pay, and the mere peculiarity of the place is unimportant in the question whether one of the joint tenants, by reason of the tenancy, possesses the necessary qualification for a vote.

There seem to me to be two points, and only two, which could or might be taken in objecting here to the sufficiency of the qualification. The first is, that the subject of the lease is not heritage within the sense of the enfranchising statutes; and the other is that, so far as heritable, it is not of the requisite value. On the former of these points little if anything requires to be said. In the first

place, the Sheriff assumes that there is heritage let to the tenants; and his reason

No. 1.

for rejecting the appellant's claim is, that the rent or yearly value of what is Nov. 1, 1875.

really heritable is insufficient. In the second place, even if the Sheriff had not Girvan v. held that Ailsa Craig was land or heritage within the meaning of the Acts, I Campbell. should have experienced no difficulty in coming to the opposite, which I think

the true conclusion.

The value of this heritable subject is therefore all that has to be considered. Now, why is the usual test, the written lease, or what in such a case as the present is practically the same thing, the valuation-roll, not to be taken as conclusive upon this point? The reality of the lease is not disputed; and the stipu lated rent is the value entered in the valuation-roll. Both landlord and tenant are assessed upon that rent.

The reasons urged for making this case an exception, are (1) That the rent is paid not for Ailsa Craig, which is heritable, but for Ailsa Craig and for the privilege of killing goats, rabbits, and birds upon the rock. This privilege is not heritable, as the respondent contends and the Sheriff appears to assume. But seemingly it has been forgotten that though the privilege of sporting when unconnected with a subject in its own nature heritable is not a qualification, whatever the rent or return which it yields, yet if it be joined to lands or heritages properly so called, the value of both is the test of the qualification. It is urged (2) that the privilege of sporting given by this lease is illusory, and must be thrown out of account, because full power is reserved to the landlord, and to friends of the landlord having his authority, to kill all, the right to kill which has in form of words been conferred on the tenants. Two answers occur to me, either of which is conclusive. The one is, that the landlord could not, without a violation of the lease, destroy the subject which he had let; and the other, that on the opposite assumption this result must have been contemplated by the tenant, who for what remained agreed to pay and is bound to pay the stipulated rent, which consequently must, on this view of the matter, be taken to be the value of Ailsa Craig.

The lease appears to me to be plain, and also for the period of its duration to confer certainty of tenure. Nothing which is let is at the caprice of the landlord, and therefore all apprehension relative to the independence of the voter, should the claim of the appellant be sustained, may be dismissed.

On the whole, I come, without difficulty, to the conclusion that the appeal must be sustained, and the appellant be placed upon the roll.

THE COURT reversed the judgment of the Sheriff.

J. & F. ANDERSON, W.S.-MILLAR, ALLARDICE, ROBSON, & INNES, W.S.-Agents.

JOHN LEARMONT, Appellant.-Macdonald.

THOMAS YOUNG, Objector and Respondent.-A. J. Young.

No. 2.

Nov. 1, 1875.

County Franchise-Successive Ownership-Reform Act, 1868, 31 and 32 Vict. Learmont v. e. 48, sec. 13.-Held that the successive ownership of different premises, and Young. merely civil possession during the requisite period, did not afford a qualification. for a vote in a county.

JOHN LEARMONT, C.E., Edinburgh, was entered on the assessor's list as Registration proprietor of dwelling-house, garden, &c., Girdwood Street, Peebles, and, Appeal Court. in succession, of dwelling-house, stable, and coach-house, Tweed Green, Peebles.

B.