Coyle v Mahon. Green v Mahon

• Jurisdiction: Ireland
• Judgment Date: 10 November 1908
• Date: 10 November 1908
• Court: Court of Appeal (Ireland)

Coyle

and

Mahon.

Green

and

Mahon (1).

Appeal.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1908.

Parliamentary franchise — Inhabitant householder — Dwelling-house — Burdensome easement — 41 & 42 Vict. c. 26, s. 5.

Held, that the case came within M'Bride v. Bryans (ante, p. 329), which the Court declined to re-open.

Appeals from the decisions of Mr. P. Lynch, K.C., and Mr. J. S. Baxter, Revising-Barristers for the borough of Londonderry.

The case of Coyle v. Mahon, as stated by Mr. Lynch, was as follows: —

The name of James Coyle appeared on the list No. 17 of the South Division of the County Borough of Londonderry, being the

Town Clerk's List of male persons entitled to vote in an election of a member to serve in Parliament as follows:—

No.	Surname and Christian Name.	Place of Abode.	Nature of Qualification, whether Rated Occupier or Inhabitant Householder.	Name or Description of Premises Rated, street, lane, or other like place in this County Borough, and number of the House (if any) where the property is situate.
213	Coyle, James,	28, Deanery Street,	Inhabitant Householder,	House and yard, 28, Deanery Street,

The said name was duly objected to.

It appeared from the evidence that the voter was tenant of the qualifying premises during the qualifying period. He had sublet one room upstairs to a sub-tenant named Michael Gavigan, who occupied the said room as an inhabitant householder. The voter was in occupation of the kitchen, a room beside the kitchen, and a front bedroom upstairs. It was necessary for the said subtenant to pass through the kitchen in order to reach his room upstairs. It was also necessary for the said sub-tenant to pass through the kitchen in order to reach the yard. In the said yard there was the only water-closet for the said house, and also the other sanitary conveniences attached to the said house, none of which was upstairs.

It was contended on behalf of the objector, that on the foregoing facts the sub-tenant had the right of passage through the said kitchen, being part of the voter's qualifying premises, and that the case fell within the decision of M'Bride v. Bryans(1).

It was contended on behalf of the voter that he was in exclusive occupation of at least a room off the kitchen and a bedroom, and that I could amend, or that I should find that he was in separate occupation of the two rooms and kitchen as his dwelling-house, subject to the rights of passage aforesaid, and not either as joint tenant or joint occupier thereof, and that I ought, if necessary, to amend to make that matter clear.

On the foregoing evidence I found the following facts:— (1) That the sub-tenant had, as against the voter, the right of passage through part of the qualifying premises; such right being necessary for the ordinary user by the said sub-tenant of the premises sub-let to him by the voter. (2) That the sub-tenant was not a lodger, but an inhabitant occupier. (3) That the voter was in exclusive occupation of rooms other than the kitchen, and that such rooms did not by themselves constitute a dwelling-house. (4) That the voter's dwelling-house in the ordinary sense of the word consisted of a kitchen, room, and bedroom. (5) That the voter occupied the kitchen and two rooms mentioned, separately, as his dwelling-house, save in so far as occupation was affected by the right of way mentioned.

I was of opinion that I could not amend the description of the qualifying premises; but I would have made any amendment that I lawfully could make in favour of the vote.

On the above findings I was of opinion that the case was governed by M'Bride v. Bryans(1), and I therefore expunged the name.

The case of Green v. Mahon, before Mr. J. S. Baxter, was exactly similar except that the voter was in occupation of one room and the kitchen. Forty-five other cases were scheduled as depending on the cases stated.

Ignatius J. O'Brien, K.C., A. M. Sullivan, K.C., and Patton, for the appellants:—

The questions are—(1) whether the present cases are governed by M'Bride v. Bryans(1), and (2) whether the Court is bound to re-affirm that decision. M'Bride v. Bryans(1) is...