Brown v Buchanan

• Jurisdiction: Ireland
• Judgment Date: 01 January 1894
• Date: 01 January 1894
• Court: King's Bench Division (Ireland)

Brown

and

Buchanan.

318 THE IRISH REPORTS. [1894. Appeal. BROWN p. BUCHANAN (1). 193. Hot. 16, 16. Parliamentary franchiseRated occupierOccupation at tenantFather of l^60' 1 I3 voter dying intestateVoter accepted as tenantContent of other next-of-kinJoint or sole occupationOnus of proof. The father of the voter was the prior tenant of the qualifying premises. He died intestate in 1881, leaving his widow and the voter (Ms son) his only next-of-kin him surviving, and in occupation of the qualifying premises. In 1882 the voter fixed by agreement the fair rent of the holding under the Land Law (Ireland) Act, 1881, and was thenceforth treated as tenant by the landlord. The voter stated that he was accepted by the landlord as tenant, with his mother's consent. The mother all along lived on the farm, and was maintained by its produce. She was not examined to prove that she consented to the change in the tenancy, nor was any evidence given that she had surrendered her rights under her husband's intestacy, nor, on the other hand, was evidence produced by the objector to show that she made any claim upon the farm. The Revising Barrister held-that the mother had not relinquished her claim on the qualifying premises, that there was in fact a joint beneficial occupation by the voter and his mother, and accordingly struck the voter's name off the register: Held (diss. Fitz Gibbon, L.J.), that there was evidence on which the Revising Barrister might so find, and that his decision should be affirmed. Per Fitz Gibbon, L.J.: The tenant and rated occupier of qualifying premises does not lose the franchise upon proof of the simple fact that someone else lives on the premises, who appears prima facie to have an equitable claim upon the assets of a deceased tenant of the premises, when there is no evidence to show that that person has made any claim. Appeal by John Brown from the decision of Mr. Kehoe, one of the Revising Barristers for the Division of North Fermanagh, striking the name of the appellant off the register of voters for the said Division. The facts appear from the case stated, which was as follows : " At a Court held at Enniskillen, on the 26th of September, 1893, for the Revision of the Lists of Parliamentary Voters for the (1) Before Sib Peter O'Brien, C.J., Porter, M.R., Palles, C.B., and Fitz Gibbon and Babrt, L.J J. Vol. II.j a. B. & EX. DIVISIONS. 319 polling district of Enniskillen, in the Division of North Fer- Appeal. rnanagh, the name of John Brown appeared at No. 126 on the *893, .... Register of Voters as the rated occupier of a farm situate at e-Whitehill, in the said polling district, and he was objected to on the Buchamak. grounds that he did not occupy same as sole tenant or owner thereof. " The following are the material facts which have been established by the evidence:Robert Brown, the father of the voter, was the prior owner and tenant of the house and farm, which constitute the qualifying premises. Prior to his death, which occurred in December, 1881, he had served a notice upon his landlord to have a fair rent fixed. He died intestate, leaving nis widow and the voter, his son, his only next-of-kin him surviving, and in occupation of the qualifying premises. On the 9th August, 1882, the voter, with, as he stated, the consent of his mother, settled the fair rent case with the landlord; and the voter and landlord thereupon entered into and signed an agreement under the Land Act, 1881, fixing the fair rent. In this agreement the voter was treated as the tenant of the farm, and he has since been tenant to the landlord, and has paid all rent and obtained receipts therefor in bis own name, with, as the voter stated, the knowledge and consent of his mother. It was not proved that the voter's mother had gone to the landlord at the time of the voter's making the agreement with him, or of the putting his name in the rent receipts, or that her alleged consent to these transactions had been communicated to the landlord. The mother lives and has all along lived on the farm, helping to work it, and is maintained by the produce of the farm, and in no respect was there any change in her position in the household, or in her mode of support from the time when her husband was living. The voter's mother was not produced before me, nor any evidence given on behalf of the voter to show that the voter's mother had released or surrendered her rights under her husband's intestacy, while on the other hand no no evidence was produced on behalf of the objector to show that the voter's mother made any claim upon the farm beyond the evidence hereinbefore detailed, and the nature of it. " Under the above circumstances, I came to the conclusion, in fact, that the voter's mother had never relinquished or released in any way her claim upon the qualifying premises, or consented that 820 THE IRISH REPORTS. [1894. Appial. 1898. Brown v. Buchanan. the voter should hold the tenanoy discharged from her claim, but that there was, in faot, throughout a joint beneficial occupation of the qualifying premises by the voter and his mother, and I therefore struck out the voter's name. If I was wrong in so doing his name should be reinstated on the register." The appeal whioh had been argued on November 15 and 16,1893, was, by direction of the Court, re-argued upon December 1,1893. Ross, Q.C, for the appellant: The first question to consider is, What is the character of the occupation which must be possessed by the next-of-kin of the deceased tenant or other occupier, in order to deprive the occupation of the ostensible tenant of the character of sole occupation and convert it into joint occupation ? It has always been held that the mere fact of other persons, who have certain equitable interests in the qualifying premises, being in occupation thereof along with the ostensible tenant is not sufficient to disqualify the ostensible tenant: M'Loughfai's Case (1) ; M'Gee v. Colquhoun (2); Fowler v. Hanrahan (3); Leonard v. M'Cann (4)~; Kirkpatrick v. Murphy (5) ; Torish v. Sproule (6); Short v. Ml Carney (7); Glen-dinning's Case (8); Bradley v. Chambers (9). The mere possession by another person of a right to occupy portion of the premises does not disqualify the ostensible tenant, e. g. the faot that part of the premises are let to a lodger does not affect the right of the tenant of the premises to the franchise : Phillip's Case (10); Duige-nan's Case (11) ; Brewer v. WGowan (12). Where there are several people belonging to one family in occupation " the head of the family " alone is to be considered the occupier; form 34, 1st Schedule to the Registration (Ireland) Act, 1885. Where the head of the family is the ostensible tenant and in occupation, the joint occupation that disqualifies him must be joint occupation as tenant: Brewer y.M'Gowan (12); Smith v. Lancaster (13). Where (1) Ale. R. C. R. 249. (2) Lawson, Notes, 1885, p. 12. (3) Lawson, Notes, 1888-9, p. 10. (4) Ibid. 11. (5) Lawson, Notes, 1890-1, p. 13. (6) Lawson, Notes, 1891-2, o. 12. (7) Ibid. 11. (8) Lawson, Notes, 1892-3, p. 43. (9) Ibid. 47. (10) Ale. R. C. R. 20. (11) Ibid. 114. (12) L. R. 5 C. P. 239. (13) Ibid. 246. yoh. II.] (i. B. & EX. DIVISIONS. 321 1693. residing on the premises held by him, and the others have stood by * ^ ^ Brow it while one of their number got himself recognised by the landlord , gg the tenant, and has paid the rent and been rated, and paid the Buchanan. rates, no hostile claim to the tenancy being put forward, the Revising Barrister is not at liberty to refuse the tenant a vote on the ground of joint occupation by the other next-of-kin : Qlendin-ning's Case (1) ; and Bradley v. Chambers (2), where a decision refusing a vote on this ground was reversed. On the other hand, where there is a claim by the next-of-kin proved before the Revising Barrister he cannot admit the ostensible tenant to the franohise : Boonan's Case (3). The last two cases, and Charlton v. J[anrahan (4), show that this is not a matter of fact which the Revising Barrister may find without being liable to be reversed on appeal; and that this Court will, if necessary, look to the weight of evidence in such cases where the Revising Barrister has set out the faots from which his inference has been drawn. _ The second question is, On whom lies the onus of proving that anyone residing on the holding has a claim to the tenancy ? Plainly on the objector. The Legislature recognizes " the head of the family " as the occupier. The onus of proof lies on anyone who asserts a claim to share in or oust his occupation. Here there is no evidence that the widow made any such claim. All the evidence is the other way. There was no appearance for the respondent. Cur. adv. vult. Sir Peter O'Brien, C.J. : De0i 13. The facts are succinctly stated in the case: they are as follows:[His Lordship read the case.] I think the Revising Barrister's decision must be affirmed as there was evidence of a joint occupation. It is quite plain that the Barrister did not accept the statement that there was any change in the tenanoy with the consent of the mother. As I said in Simpson's Case (5), it was quite open to him to disbelieve 6uch a statement when made by a (1) Lawson, Notes, 1892-3, p. 43. (2) Ibid. 47. (3) Lawson, Notes, 1890-1, p. 14. (4) Lawson, Notes, 1892-3, p. 8. (5) Lawson, Notes, 1892-3, pp. 10, 13. there axe several persons next-of-kin of a prior deceased tenant Appeal. 322 THE IRISH REPORTS. [1864. (1) Ante, 299. (2) Ante, 312. Appeal, claimant. The case does not state categorically that any change was made with the oonsent of the mother. On the contrary, the Brown expression is " as the voter stated," and the Revising Barrister is Buchanan, careful to tell us that it was not proved that the voter's mother had 8irP. O'Brien, gone to the landlord at the time of the voter making...