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A.N. 2.
I N Q U I R Y .
- sº INTO THE
RISE AND PROGRESS OF PARLIAMENT,
CHIEFLY IN SCO 7 LAND;
AND
A COMPLETE SYSTEM OF THE LAW,
CON CERN ING THE
. ELECTIONS OF THE REPRESENTATIVES FROM SCOTLAND;
TO THE
PARLIAMENT OF THE UNITED KINGDOM.
* 4. TO WHICH IS ADDED
A N A P P E N DIX,
CONTAINING * *
SEVERAL CURIOUS PAPERS AND INSTRUMENTS, AND FULL coPIES of:
THE ELECTION STATUTES. *
BY ALEXANDER WIGHT, Esq: Advocate.
S. S. A. Scot.
A NEW EDITION:
WITH A SUPPLEMENT;
including the
CASES AT LARGE, TO THE PRESENT PERIOD-
--ºm-
IN TWO VOLUMES:
VOL. II.
ED IN B URGH : *
PRINTED row. WILLIAM CREECH ; And J. MURRAY, Flast Staret, London, .
1806.
UN
1343
*942
! 3.04.
V, 2.
XVOL. II.-PART I.)
CONTAINING
ELECTION CASES,
DECIDED IN
THE COURT OF SESSION, HOUSE OF PEERs,
AND HIGH COURT OF JUSTICIARY,
cHIEFLY FROM 1784. To 1796;
TIGESTED AND ARRANGED IN THE ORDER
AND UNDER THE TITLES OF
MR wigHT's TREATISE UPON ELECTION Laws;
, so FAR AS RESPECTS
THE REPRESENTATIVES OF COUNTIES ANE) AR()ROUGH3.
compileD FROM THE originAL PAPERs.
—r
P. R. E. F. A. C. E.
THE following Work is offered to the public as a Supplement
to the late Mr Wight's Treatiſe upon Ele ‘tion-Law. Any
eulogium upon that well known Work would be alike unneceſ-
ſary and miſplaced. Its merit has been long duly appreciated .
by the world. But it is well known to the public at large, as
well as to the practitioners of law, that ſince the laſt edition of
Mr Wight's book (in 1784) many important judgments have
been pronounced, by our Supreme Courts, in election caſes. In
conſequence of theſe, points of law formerly uncertain, may now
be confidered as ſettled, and others have perhaps become matter
of diſpute, on which there was formerly thought to be but one
opinion. It is therefore ſuppoſed, that an accurate and faith-
ful compilation of ſuch caſes may form an uſeful Appendix to a
Work which the lapſe of time has rendered in ſome degree im-
perfeót.
THE plan adopted in the following ſheets correſponds as
nearly as poſſible to that of Mr Wight; and the references to his
Work will be found numerous. At the ſame time, it was judged
neceſſary to accompany the caſes with ſuch remarks as might
preſerve connexion and unity ſufficient to carry on a continued
chain of reaſoning upon every ſeparate point. Hence if not
entitled to figure as a totally independent work, neither can
this Colle&tion be regarded as a mere appendix or collection of
detached notes and caſes, fince it may be read ſeparately, with
eaſe and connexion, and, it is hoped, not without utility.
WHERE
W I - P. R. E. F. A. C. E.
WHERE the author has ventured to hazard his own opinion, it is
only when the deciſions appear ſtrongly to authoriſe his conclu-
ſions. Upon ſuch paſſages, however, each reader will be enabled
to judge for himſelf, by recurring to the ſtatements of the caſes.
But although it would ill become the author to aſſume any merit
upon the few original paſſages of this book; yet he conceives he
may boldly put in his claim to the humble merit of laborious
accuracy as a colle&tor and compiler.
IT is believed the Work will be found to comprehend all the
remarkable election-caſes which have been decided ſince the
date of Mr Wight's publication. In abridging theſe, not only
the Faculty Colle&tion and other publications of the ſame nature
have been conſulted, but, wherever it was poſſible, the original
ſeſſion papers and appeal caſes have been reſorted to. Where
there appeared any difference between the arguments as given to
the world by collectors, and as ſtated in the papers, ſuch diffe-
rence, real or ſuppoſed, has been carefully noticed; and it is
believed that the dates, names of parties &c. will be found cor-
rečt. In a word, it is hoped that the nature of this Work, form-
ing a record of the judgments of our Supreme Courts, upon ſub-
jećts of ſuch importance to our liberties and rights as freemen
and Britons, will render it not unworthy the attention of the Pu-
blic. •
Edinburgh, 4th June 1796.
C O N T E N T S.
- Page
CHAP. I.-Of the Freeholder; Roll sº & I
CHAP. II.-Of the Qualifications neceſſary to entitle a perſon to be
enrolled a Freeholder gº tº- - 23
CHAP. III.-Of certain circumſtancer, independent of the Title,
which diſable perſons from being admitted upon the Free-
holders Roll, or for voting in the election of Commiſſioners
from Shires - tº- - 122
CHAP. IV.-Of the Alterations in the Circumſtances of a Freehol-
der ſufficient to ſtrike him off the Roll tº- I 23
CHAP. V.—Of the conſtitution of Royal Boroughs in Scotland;
and of the Annual Election of Magiſtrates and Counſellors I 34
APPENDIX.
No I. Aćt 3omo Georgii III. cap. 17. - I 59
No 2. Aćt 33tio Georgii III. cap. 64. - I 61
No 3. Aćt 35to Georgii III. cap. 65. iº º 162
7%.232 - /?
E L E C T I O N C A S E S.
C H A P T E R I.
Of the Freeholders Roll.
riff's Michaelmas head-courts, for reviſing and correóting
it, were firſt appointed by act 1681, chap. 21. ; but
it was not until the year 1743 that theſe matters came to be ar-
ranged upon their preſent footing. By a ſtatute paſſed that
year (16 Geo. II. cap. 11.) many ſalutary regulations were intro-
duced, for aſcertaining the proper and conſtituent members of
every meeting of Freeholders; for clearing their rolls of ſuch as
had no right to remain upon them; for fixing the days of holding
the head courts; directing the mode of application for enrolment;
and laſtly, eſtabliſhing a juriſdićtion of review in the Court of Seſ-
fion, empowering them, upon ſummary application, to correót
abuſes that might be committed by the Freeholders”. The par-
ticular enactments of the ſtatute for theſe purpoſes I forbear cit-
ing at large, both becauſe the ſtatute itſelf is univerſally known,
Tº: Freeholders Roll, and their annual meetings at the She-
* The time limited by the ſtatute for applying to the Court, is four kalendar months
from the date of the judgment of the Freeholders. As to this ſee Mr Wight’s Inquiry,
p. 133. See alſo a late act of parliament in Appendix, No I. *
A z and
-
2 E L E CTION CAS E. S.
and becauſe it is very fully and accurately detailed by Mr Wight,
in his larger work, to which the following pages are meant to
ſtand only in the humble relation of a ſupplement.
THE juriſdićtion of the Court of Seſſion, though in a great
meaſure derived from this ſtatute, was however, to a certain ex-
tent, conferred by the previous act 1681, which enacted, that ‘in
‘ caſe obječtions be made when a parliament or convention is not
‘ called, a particular diet ſhall be appointed by the meeting, and
‘ intimate to the parties controverting, to attend the Lords of
* Seſſion for their determination, who ſhall determine the ſame
‘ at the ſaid diet ſummarily, according to law.” This juriſdic-
tion, however, was of a very limited nature; and, limited as it
was, the Court ſeem to have had few or no opportunities of ex-
erciſing it. There does not appear, amongſt the printed deci-
..ſions, any one queſtion relative to the privileges of freeholders,
prior to the ſtatute of the 16 Geo. II. ; and it is ſaid, that all ſuch
queſtions were then in uſe to be carried to the Houſe of Com-
mons: So that the juriſdićtion of the Court of Seſſion may be pro-
perly attributed to the ſtatute laſt mentioned.
Even this ſtatute, if literally and ſtrićtly interpreted, is far
from conferring upon the Court of Seſſion a general juriſdićtion
in matters of enrolment, and upon every ſpecies of complaint of
proceedings had by the Freeholders. On the contrary, it ſeems
to authoriſe ſummary complaints only in the three following
caſes: 1/f, ‘ If any perſon claiming to be enrolled ſhall, by
* judgment of the Freeholders, be refuſed to be admitted.”
2dly, ‘ If any perſon who ſtood upon the roll ſhall, by like
* judgment, be ſtruck off, or left out of the roll.' And, 3dly,
* If any perſon ſhall be enrolled, whoſe title ſhall be thought
* liable to objećtion.” Accordingly, objećtions have, on many
different occaſions, been ſtated to the competency of ſummary
complaints, in caſes not falling directly under any of theſe three
deſcriptions. But the Court have given a liberal interpretation
to the ſtatute, (which is indeed ſo far defeótive in its words) and
have extended it to many caſes within its ſenſe and ſpirit, though
not within the letter of the enactment; in ſo much, as to have
eſtabliſhed
F R. E. E. H. O L IDE R S R O L L. 3
eſtabliſhed by their decificns, a power of examining every judg-
ment pronounced by the Freeholders, and of remedying every
abuſe by them committed relative to their roll. Thus, in the caſes
of Mr Pulteney and others, mentioned by Mr Wight, p. 137,
complaints were received againſt Freeholders, as having repelled an
objećtion for ſtriking a perſon off the roll. The ſame judgment
has ſince been given, where a motion to expunge was not negativ-
ed, but diſregarded by the Freeholders, the Court juſtly hold-
ing that as equivalent to a direct refuſal *. *
ON the ſame principle, the Court have ſuſtained a complaint
as competent, againſt a judgment of the Freeholders, in a caſe
where a qualification was reſtrićted to part of the lands origi-
nally claimed on, in reſpect of a ſubſequent conveyance of the
reſt f. It is ſaid in the Faculty Report of this caſe, that “by a
* confiderable majority of the Judges, the application for a re-
‘ ſtriótion was viewed as an obječtion made by the Freeholder
himſelf to his continuing on the roll, in virtue of the lands for-
* merly belonging to him.’ But, in whatever light the application
was viewed, this deciſion goes equally to fupport the general prin-
ple; being a caſe not within the words, though clearly within the
intention of the ſtatute. With ſimilar views the Court have, on
many occaſions, fruſtrated the manoeuvres of Freeholders, to
avoid taking the oath of truſt and poſſeſſion, without giving it
a poſitive refuſal, ſo as to come directly under the certification of
&
* 3d March 1791, Sir Alexander Campbell, contra David Ballingall, Eſq. At the
election meeting for Stirlingſhire, in 1790, a Freeholder put certain queſtions to Mr Bal-
lingall, tending to infer that his qualification was nominal and fićtitious, and that he had
had no poſſeſſion in virtue of his titles. The minutes bear, ‘To which Mr Ballingall re-
• fuſed to make any anſwer, but ſaid he was ready to take the truſt oath;’ upon which
the ſame Freeholder ſtated, that as Mr Ballingall “refuſed to anſwer, he ſhould be
* held as confeſſed, and ordered to be ſtruck off the roll of Freeholders ; and proteſted,
• that his vote, at any future period of this election, ſhould be void, and that he ought to
• be expunged from the roll of Freeholders; and the oath of truſt and poſſeſſion being
• put to the ſaid David Ballingall, the ſame was taken by him.” The minutes do not con-
tain another word upon the ſubject.
(e
+ 3d March 1791, George Dempſter and others, contra Charles Lyel. The deciſion
9th Auguſt 1774, Stuarts contra Campbell of Shawfield, (quoted by Mr Wight p. 137.)
does not ſeem contrary, as there the application for reſtrićtion was made at a Michaelmas
meeting, where two months previous notice was neceſſary ; whereas Mr Lyel’s happened
at a meeting for election.
A 2' the
4. E L E C T I O N CAS E. S.
the aët 7 Geo. II. And, in the ſame way, if we could ſuppoſe a
majority of Freeholders to refuſe to expunge one who had declined
the oath, when legally tendered to him, there ſeems no doubt that
a ſummary complaint would be received, though the ſtatute gives
no direét anthority for it. In the laſt place may be mentioned
the noted caſe of Sir James Sinclair, where it was found compe-
tent to try, in the Court of Seſſion, even a right of peerage, when
ſtated as an objection to a perſon’s continuing on the roll of Free-
holders *, although in all other ſituations, the trial of every ſuch
queſtion belongs excluſively to the Houſe of Lords, in a Com-
mittee of Privileges, and in conſequence of a ſpecial remit from
the Sovereign.
THE ſtatute 1681, after ſpecifying the manner in which objec-
tions were to be ſtated againſt any of the Freeholders, at a Mi-
chaelmas meeting, or meeting for election, contains the following
clauſe: “And if the objećtors ſhall not be cleared (i.e. ſatisfied) and
‘ acquieſce, they ſhall take inſtruments, containing their objections
* againſt the admitting to, or excluding any perſon from the fore-
ſaid roll. And it is hereby declared, that no other objection ſhall
* be competent in parliament or convention, but what ſhall be
* contained in the inſtruments taken, as aforeſaid.’ Under this
clauſe it has been pleaded, that ſince the Court of Seſſion has
now come in place of the parliament, as to queſtions of enrol-
ment, and is, like the parliament, only a court of review, ob-
jećtions can never originate in that court, but muſt in every
caſe be firſt ſtated to the Freeholders. This doćtrine, however,
has not been liſtened to, as appears from a caſe mentioned by Mr
Wight f, who gives very ſtrong reaſons in ſupport of the deciſion.
©
WITH regard to another queſtion, ſomewhat a-kin to this,
Whether new evidence can be received before the Court of Seſ.
fion, in order to ſupport a claim for enrolment, which has been
* 2d February 1790, Sir William Dunbar and others contra Sir James Sinclair. The
interlocutor of the Court in this caſe was in theſe words : “Allow the complainers to
• prove, that Sir James Sinclair of Mey, the perſon complaimed upon, has ſucceeded to
• the title of the Earl of Caithneſs; and ordain the complainers to give in a condeſcend-
* ence of the facts they offer to prove,’ &c.
# Page 140. ſe
reječted
FR E E H O L D E R S R O L L. 5.
rejećted by the Freeholders ? Mr Wight reports a variety of deci-
fions from p. 14o, downwards ; and, as the reſult of them, he
lays it down as an eſtabliſhed point, ‘ that although a claimant
* who neglects to produce any part of his title to the meeting
of the Freeholders cannot be allowed to ſupply that defect
under a complaint to the Court of Seſſion, yet it is competent
to bring forward new collateral or explanatory evidence to ſup--
port a title, and to remove objections that have been made to
it in the meeting of Freeholders.’ The moſt frequent inſtances of
the application of this doćtrine have been in queſtions of identity,
where there has been an apparent diſcrepancy or diſagreement be-
tween the names of the lands in the claimant's titles, and thoſe
contained in the retour or ceſs-books founded on to ſhow the extent
or valuation. In all ſuch caſes the Court have uniformly allowed
explanatory evidence to be adduced before them in the firſt in-
ſtance, for ſhowing the application of the different names; and.
the point is now ſo well underſtood and fixed as to be no longer,
in any danger of future queſtion. Two or three caſes ſhall be.
mentioned.
º6.&©&
THE firſt was from Stirlingſhire. At the meeting of eleētion.
for that county 3d July 1790, Col. Andrew Bruce claimed enrol-
ment as having right to the lands of Balquhatſton, Above-the-hill
or Bunie-hill of Balquhatſton, Weſter Balmitchel, and Bulliondale,
part of the lands of Slamannan. It having been objected that no
entry correſponding to theſe lands appeared in the valuation or
ceſs-books, it was anſwered “ the claimant's lands ſtand diſtinčt-
* ly rated at L. 4oo Scots in the valuation and ceſs-books, under
“ the names of the vaſſals; and the claimant is ready to ſhow, by
* the charters of the vaſſals, that theſe names in the ceſs and va-
* luation-books, do apply to the lands upon which he claims to
‘ be enrolled, and to no other.” It was replied, that this ought
to have been ſhown to the Commiſſioners of Supply, and in fact
there had been an application made to them for that purpoſe,
and a report made up by a committee; but as that report had
not been approved of by a general meeting, the Freeholders re-
jećted the claim. Upon a complaint, however, the Court allowed .
a proof of the correſpondence of the lands claimed on, with the
entries
6 E L E CT I O N C A S E S.
entries in the ceſs-books, and on adviſing it they ordered Col.
Bruce to be enrolled”.
THE next caſe was from Forfarſhire. Sir John Ogilvie claim-
ed at the Michaelmas meeting 1795, to be enrolled, inter alia, upon
the lands of Baldovan ; and an article under that name appeared
in a valuation book of the county in 1693, at L. 550. At an
after period, however, there had been a ſale of certain parts of
the lands, which were ſpecially excepted in the claim; and as it
did not appear what part of the valuation was applicable to the
lands ſold, it was obječted, that without a regular decree of di-
viſion the valued rent was not legally inſtructed ; and although
it was ſhown from the ceſs-rolls, that the lands claimed on ap-
plied to an article of the ſame name, entered in a valuation-
book ſubſequent to the ſale, and conſequently applied to the
original article minus the excepted lands, the Freeholders ſuſtain-
ed the obječtion. Sir John gave in a complaint, which was fol-
lowed with anſwers, replies, and duplies. In the pleadings it
was ſhown almoſt to demonſtration, not only by the ceſs-books,
but by various pieces of other evidence, that in the article of
valuation founded on, allowance muſt have been made for the
lands ſold; and notwithſtanding all kind of new evidence was
obječted to, as incompetent to ſhow in the Court of Seſſion, what
was ſaid to be, not the identity of two articles, but the amount of
the valuation, which ought in every caſe to be firſt laid before
the Freeholders, the Court reverſed the judgment of the Free-
holders, and ordered Sir John to be enrolled f.
Is HALL notice only one caſe more. At the Michaelmas meeting
of Freeholders for Roxburghſhire, 6th Oétober 1795, a claim was
preſented for enrolment upon ‘all and whole that half part of the
* dominical lands of Herdmeſtown, now called Hermiſtone;’ and, in
proof of the old extent, there was produced a retour, dated 1 5 Io, of
the half of the dominical lands of Herdmeſtown, but without ſaying
* 1ſt Feb. 1791, Bruce contra Davidſon.
+ 2d March 1796, Sir John Ogilvie of Inverquharity contra Sir David Carnegie of
Southeſk.
which
F R. E. E. H. O L D E R S R O L L. 7.
which half; and as there was no evidence laid before the Free-
holders, to ſhow that the half now called Hermiſtone was the ſame
with that contained in the retour, they refuſed to admit the
claimant to the roll. In a complaint, however, it having been
made out to the ſatisfaction of the Court, that the lands claimed
on, and thoſe retoured, were the ſame, the claimant was ordained
to be enrolled f.
MR WIGHT, at the ſame time that he lays down the diſtinétion
between evidence of title, and collateral or explanatory evidence,
mentions two inſtances in which evidence of the former ſpecies
was received, in the firſt inſtance, in the Court of Seſſion [See In-
quiry, p. 144. 145. and 146.]; and the ſame deciſion has been gi-
ven in a later caſe. Mr Erſkine-Knight was enrolled a Freehold-
er in Aberdeenſhire, upon his wife's eſtate, and in her life-time.
His wife's titles were a crown-charter of reſignation, (upon a pro-
curatory from her father) and ſafine on it, although Mrs Knight
was alſo entitled to take up the eſtate as heir of proviſion to her fa-
ther, under a marriage-ſettlement. At the election-meeting 1786,
(after Mrs Knight's death) it was obječted to Mr Knight's con-
tinuing upon the roll, that, as he had been originally. placed ,
there upon ſingular titles, which had ceaſed to operate upon his
wife's death, he had no longer the ſame right to the lands; and
that, although by the exiſtence of children he was entitled to
the courteſy, in virtue of which he might afterwards be reſtored
to the roll upon claiming of new, and producing the marriage-
contračt, this could not in the mean time protećt him from being
expunged. He was expunged accordingly; the conſequence of
which was a complaint to the Court of Seſſion, along with which
the marriage-contračt was produced. It ſeems clear, that if Mr
Knight had, for the firſt-time, claimed as tenant by the courte-
ſy, it behoved him to have ſhown, that the mother of his children
had died infeft in the lands, upon titles of ſucceſſion; and if ſo,
it would not appear to make any difference, that he had pre-
viouſly been enrolled upon a ſeparate intereſt in the eſtate, not
only in virtue of fingular titles, but to which a title of ſucceſſion
was in no ſhape eſſential. Hence, if the diſtinétion laid down .
+ 4th March 1796, Govan of Hermiſton contra Sir George Douglas and others. *
by
8 E L E CT I O N CAS E.S.
by Mr Wight had been adhered to, the judgment of the Free-
holders in this caſe would have been affirmed in the Court of
Seſſion, notwithſtanding the production there made for the
firſt time. The Court, however, found Mr Knight entitled
to remain on the roll, and that a new claim was unneceſſary *.
The reaſoning of the reſpondent is thus abridged in the
Faculty Report, from which alone this account of the caſe is
taken : “As the method in which Mrs Knight completed her
* titles did not in the leaſt derogate from her chara&ter of
an heireſ, ſo a reference to thoſe titles was far from afford-
ing ſatisfactory proof of her being a ſingular ſucceſſor. The
ſlight preſumption, for it is no more, which this circumſtance
occaſioned, may, of courſe, be competently obviated, by pro-
per evidence, in the court of review. The caſe is the ſame as
if it had been aſſerted, that Mr Knight had no right to the
courteſy, becauſe no children had exiſted of the marriage; an
aſſertion which, though credited by the freeholders, Mr
Knight would have been allowed to refute by a proof in the
Court of Seſſion.’
6:GG&&&
ON this point two very curious and ſingular caſes occurred
lately. The firſt was from Forfarſhire. Prior to Michaelmas
1795, Mr Proctor claimed enrolment in that county, upon
the following titles: Imo, Crown-charter of reſignation in fa-
vour of the Earl of Strathmore, 2do, Diſpoſition of the lands
claimed on, granted by two gentlemen as commiſſioners nomi-
nated and appointed by the Earl, to the claimant, containing an
aſſignation to the charter, 3?io, Inſtrument of Safine on the cha-
ter and diſpoſition. It was obječted at the meeting, “ That the
* charter founded on by the claimant, is granted to the Earl of
* Strathmore, and the deed by which the claimant attempts to
‘ connect himſelf with it, is a diſpoſition to part of the lands
“ therein contained, bearing to be granted by two gentlemen as
* commiſſioners from Lord Strathmore ; but no commiſſion from
‘ his Lordſhip to them is produced.’ The commiſſion had been
put upon record; but neither the date nor regiſtration was ſpe-
* 26th July 1786, Erſkine-Knight, contra Robinſon.
cified
F R E E H O L D E R S R O L L. 9
cified in the claim, and the commiſſion itſelf not being produced to
the Freeholders, they had no opportunity of ſeeing or inveſtigating
it at all, though no doubt was entertained of its exiſtence. A majo-
rity of the Freeholders refuſed to enrol Mr Proëtor; and the Court
of Seſſion, upon adviſing a complaint, with anſwers, replies, and du-
plies, affirmed that judgment: thus finding, that in ſuch a caſe, the
Commiſſion or power to convey, forms a part of the title of en-
rolment, juſt as much as the conveyance or any other mid-couple,
and muſt therefore, like all ſuch, be ſpecified in the claim, and
produced to the Freeholders *. But, on adviſing a reclaiming
petition and anſwers, the Court unanimouſly reverſed their for-
mer deciſion f.
THE other caſe was from the ſhire of Sutherland, in which
county only, enrolment is competent upon lands held under a ſub-
jećt-ſuperior. In that caſe the charter was granted, not by the ſu-
perior, (who was fatuous and cognoſced as ſuch), but by a fac-
tor loco tutoris for him. At the Michaelmas meeting 1795, Mr
M“Kay of Scotſtown claimed to be enrolled, producing as his title
this charter and the ſafine upon it; but the nomination or ap-
pointment of the factor loco tutoris, was not laid before the Free-
holders. A variety of objećtions were ſtated at the meeting, and
this amongſt others: That the charter was, ex facie, void and
null, as being granted by a factor loco tutoris, who had no power
to grant it, in reſpect it did not fall under the claſs of ordinary
acts of adminiſtration. The Freeholders refuſed to enrol Mr
M“Kay; and in a complaint to the Court of Seſſion, two queſ-
tions occurred: 1/#, If it was in the power of a factor loco tutorir, in
any caſe, to grant a charter; and 2dly, If, ſuppoſing him to have
ſuch power, his appointment as factor loco tutoris, granted by the
Court of Seſſion, ought to have been produced to the Freeholders
as part of the claimant's title. The Court ordained Mr M'Kay
to be enrolled f. A reclaiming petition was refuſed without an-
ſwers, 9th March 1796.
* This judgment given 26th February 1796, Patrick Proctor, Eſq. contra Sir David
Carnegie of Southeſk, Baronet, and others. sº
+ 14th May 1796. f
# 24th February 1796, M'Kay, contra Houſton of Creech.
^. B THESE
lo - E L E CT I O N C A S E S.
THEs E judgments of the Court may ſeem, in a certain degree,
inconſiſtent with the common ſtile of their interlocutors (revers-
ing thoſe of the Freeholders) which, even in ſuch caſes as have
been juſt mentioned, always find that the Freeholders have dons
wrong; and indeed where a claim is rejećted by the Freeholder-
for want of evidence, but ſuſtained by the Court of Seſſion, up-
on grounds which the Freeholders never ſaw, it cannot, with pro-
priety be ſaid that they have done wrong. Theſe, however, are
merely words of ſtyle.
IN fact, the Court of Seſſion cannot be ſaid to be a Court of
appeal in ſuch queſtions. Were that the caſe, no new evidence
would be there admiſſible, which is clearly the ſituation of the
Houſe of Peers, when judging upon appeals. The iſſue to be tried
in the Court of Seſſion, is not properly whether the Freeholders did
right or wrong, (expreſſions which do not occur in the ſtat. 16 Geo.
II.) but if the perſon complaining had right to be admitted, or to
continue upon the roll; in other words, if the judgment of the Free-
holders be upon the whole well or ill founded. The ſtyle of the in-
terlocutors has ariſen from that of the ſtatutory complaints,
which always pray the Court to find the Freeholders * bave done
wrong ;' but the words are quite harmleſs, and mean no more
offence to Freeholders than is intended to the judge-ordinary in
moſt bills and letters of advocation, which by common ſtyle bear
that he has committed manifeſt iniquity;' or than was conveyed by
the ſtill leſs delicate expreſſions anciently uſed at entering ap-
peals, or as it was called, falſing of dooms. Accordingly in the
caſe of Govan, already mentioned, a reclaiming bill having been
preſented, praying the Court to find, that although that gentle-
man had, in diſcuſſing the complaint, eſtabliſhed his qualification,
yet, the Freeholders, in place of doing wrong, had done right to
rejećt the claim upon the evidence laid before them ; it was re-
fuſed without anſwers *, upon this ground, that any ſpecial excul-
pation was thought unneceſſary, no blame being implied in the
words of ſtyle made uſe of by the interlocutor.
* 9th March 1796. *
WITH
FREE HOLDERS R O LL. I I
WITH regard to the proper parties to be called in a complaint be-
fore the Court of Seſſion, theſe are diſtinétly pointed out by the
ſtatute 16 Geo. II. and illuſtrated by Mr Wight, p. 146. Wºrk
the complaint is for enrolling or refuſing to expunge a Freeholder;
he alone is to be called. And, on the other hand, in a complaint at
the inſtance of one who has been refuſed to be admitted, &c. the
ačt provides that the Court “ ſhall grant a warrant for ſummon-
“ing the perſon or perſons upon whoſe objećtion or objećtions he
‘ was refuſed to be admitted, or was ſtruck off, or left out.’ This
of the ſtatute has been ſtriótly enforced by the Court, as appears
from the two caſes cited by Mr Wight; and very lately a com-
plaint was diſmiſſed, as having been ſerved only upon one of three
who had made the objećtion, although the firſt interlocutor of
the Court authoriſed ſervice upon him alone, having been grant-
ed in the preciſe terms of the prayer of the complaint”.
THE words of the aët juſt now quoted imply, that the minutes
of the Freeholders ſhould bear the names of thoſe who move or
ſupport an obječtion. It certainly is the duty of thoſe who make
up the minutes, to ſee that ſuch ſpecification be made ; becauſe,
by neglecting to do ſo, they put a complainer to the expence of
citing all the members of the meeting, however numerous, in
place of perhaps one or two, who, beſides, might probably be
induced, upon proper application, to ſiſt themſelves as defenders,
and thus ſave the expence of any ſervice at all. The juſt and
natural puniſhment for ſuch neglect is, to award the extra-ex-
pence of ſervice, as was very lately done +. In this caſe the
Court gave only the expence of ſerving the complaint, but not
that of extracting the warrant, as an extract was neceſſary at any
Fate.
But though it be ſufficient in ſuch a caſe to call the objećtor
alone, where his name appears, that perſon is by no means en-
truſted with the ſole and uncontrolable power of continuing
or withdrawing his oppoſition, in the Court of Seſſion, according
* 15th May 1790, Joſeph Williamſon contra John Smith.
it 4th and 9th March 1796, in the caſe of William Govan contra Sir George Douglas
and others, already mentioned. -
B 2 £0
I 2 E L E CTION CAS E.S.
º
to his own fancy or political views; ſo that were he to agree to
the prayer of the complaint, or even to condućt the defence
improperly, it would ſtill be competent for any other of the Free-
holders to ſtep forward, and make ſuch a defence as the nature
of the caſe might ſeem to require. The judgments of every
meeting of Freeholders are viewed as the common concern of all
its members, juſt as a motion in any popular aſſembly, e. g. in
the Houſe of Commons, becomes the property of the Houſe, and
cannot be withdrawn but by conſent. Mr Wight, at p. 147. men-
tions a caſe where the Court ordered the withdrawing of an ob-
jećtion to be notified to the other Freeholders by the Sheriff of
the county. In a late caſe from Roxburghſhire, where a com-
plaint was preferred by one Freeholder againſt another, in the
ſame intereſt, and who, there was ſome reaſon to preſume, would
make but a feeble oppoſition, the Court, on an incidental ap-
plication, allowed anſwers to be made in the name of another
Freeholder *, &
NEITHER the ſtatute 16 Geo. II, nor. 14 of his preſent Majeſty,
(under which alone ſummary complaints are competent,) pre-
feribes any particular mode in which they are to be ſerved; ſo that
parties are left, in ſome meaſure at diſcretion, to make the ſer-
vice in any way that may give certain information to the perſon
complained upon, without regard to the ordinary formalities of
citation, which have been repeatedly found not to apply. There
cannot be a ſtronger inſtance than the following, where ſervice,
by a meſſenger, at the market-croſs of Edinburgh, pier and ſhore
of Leith, againſt a party forth of the kingdom, was ſuſtained,
though the deliverance of the Court gave him no authority for
citing in that form f. In all other caſes, this ſpecies of edićtal cita-
tion, being a deviation from common rules, and only introduced ex
mobili officio of the Court, requires not only an expreſs warrant
from their Lordſhips, but muſt alſo, to have effect, be ſpecially
craved in the application.
* Nov. 1790, Anſtruther Paterſon eontra Elliot. The merits of this caſe, will be men-
tioned in the ſequel.
+ 23d Feb. 1785, Alexander Tenant and others contra Alexander Johnſtone and
ethers.
THIS
^.
FRE F HOLDERS Ro LL. I 3
TIIIs deciſion, therefore, authoriſes a certain degree of lati-
tude in ſuch caſes; and I ſhould rather think, that, in ſerving
upon a perſon forth of Scotland, it were better to make intima-
tion to his ordinary man of buſineſs, or known agent, who, in
moſt inſtances, would communicate the ſame to his conſtituent,
than to adopt a mode of ſervice which, in the way it is per-
formed, certainly gives no intimation to the party. In ſerv-
ing petitions of appeal, under authority of the Houſe of Peers,
ſervice upon the known agent, in the Court below, is always
deemed good ſervice; and there does not occur any good reaſon,
why the ſame mode of intimation might not be adopted in this
caſe. It is not indeed of great conſequence to have the point
very nicely aſcertained, as even a citation, erroneous in point of
form, can have no other effect, than that of putting the complainer
to the expence and delay of a new one ; the preferring of the com-
plaint being alone ſufficient for interrupting the ſtatutory pre-
ſcription of four months.
The mode of proceeding at Michaelmas meetings, and elec-
tion meetings, for adjuſting the roll, is fully explained by Mr.
Wight *, to whoſe obſervations and authorities upon that ſub-
jećt I have nothing to add. The only difference in the matter
of enrolments, between the proceedings at a Michaelmas head-
court, and thoſe at an election-meeting, ſeems to be, that, in the
former caſe, all applications to the Freeholders, whether claims
or obječtions muſt, by the ſtatute 16 Geo. II, be lodged two
kalendar months before the meeting; whereas, at an election,
claims or objections may be preferred to the Freeholders, de.
plano, without any ſuch previous notice.
The purpoſe of the ſtatute requiring this notice, is “to pre-
‘ vent all ſurpriſe’ upon the Freeholders, and to give them time
to make up their minds upon the nature of the claims and ob-
jećtions to be judged of at the meeting; ſo that when they come
there, nothing farther may remain to be done than to compare
* Page 148. et ſeq.
the
•º
14. E L E C T I O N C A S E. S.
the claims or obječtions with the vouchers and inſtructions
thereof produced, and to give judgment accordingly. It is ob-
vious, that a meeting of Freeholders, always hurried, and fre-
quently agitated by political zeal, is by no means a place for a
cloſe and minute examination of a claimant's title-deeds; and
therefore, without ſome previous notice, it can hardly be ſup-
poſed in the power of gentlemen to make themſelves ſufficiently
acquainted with the merits of each particular caſe. Theſe rea-
ſons apply, indeed, more ſtrongly to election meetings, where
no previous notice is required; but the caſes which occur there,
are comparatively few, as no perſon who can avoid it will delay
his claim till then, which deprives him not only of rank upon
the roll, by allowing others to get upon it before him, but alſo
of the valuable privilege of voting in the choice of preſes and
clerk, at the election-meeting. gº
TAKING this ſtatute literally, it ſeems to require two months
notice of ſuch obječtions only as are founded upon an altera-
tion of circumſtances; and hence it has been pleaded as not ap-
plying to an obječtion which has occurred very frequently of late,
That the qualification is nominal and fićtitious, or confidential;
becauſe that obječtion, it is ſaid, ſo far from founding upon an
alteration of circumſtances, proceeds upon this, that the party
had no circumſtances to alter, and that there had been nothing
veſted in him, from the firſt, but the paper and parchment on
which he claimed. It would rather appear, however, to be
more conſonant to the true ſpirit of this part of the ſtatute,
that a perſon who means to obječt to the right of another to con-
tinue on the roll, in reſpect either of his having diſcovered that
the perſon obječted to had granted a back-bond to his author, or
had never been in the poſſeſſion of the lands conveyed to him,
or that his qualification was, on other accounts, nominal and
fićtitious, or confidential, and in defraud of the law, ſhould
lodge previouſly a copy of ſuch objećtion with the ſheriff-clerk
in common form. The ſtatute bears, as has been already obſerv-
ed, that this regulation was made to prevent all ſurpriſe at the
Michaelmas meetings. This, however, cannot be prevented, if
*
F R E E H O L D E R S R O L L. I 5
a Freeholder ſhall have it in his power to bring forward there
any one objećtion, without having given previous notice of his
intention to do ſo. I underſtand accordingly, that the Court
have, in many late caſes, found this an indiſpenſable requiſite.
IN a claim for enrolment, the ſtatute requires the claimant to
ſet forth ‘the names of his lands, and his titles thereto, and
“ dates thereof, with the old extent or valuation, upon which he
‘ deſires to be enrolled.” There is no particular form requiſite to
be obſerved in making out the claim ; and although ſome cau-
tious practitioners do inſert many other particulars than thoſe ſpe-
cified in the aét, fuch as the holding, the date on which the char-
ter was written to the ſeal, and regiſtered, and often a teſting clauſe
with all the formalities of the ſtatute 1681, c. 5. it is certain that
no ſuch ſpecification is neceſſary, and that the Court, injudging of
the validity of any claim, will, as they have uniformly done, re-
quire nothing more than a compliance with the directions of the
Ítatute 16. of the late King. On this principle were ſeveral judg-
ments reported by Mr Wight*; and ſince the date of his work,
no alteration has taken place. Thus, upon the 20th February
1787, in the caſe of Meſſrs Walter Scott and Archibald Tod,
writers to the ſignet, contra Mr John Millar, junior, advocate, the
Court admitted as evidence (at leaſt as explanatory evidence) of
the old extent, a retour which the claim not only did not men-
tion, but where the claimant had referred to another retour in proof
of the extent f. There it was ſtrenuouſly urged, that to receive
evidence of the old extent not ſpecified in the claim, was equally
incompetent, and as much an infringement of the act of parlia-
ment, as to receive a charter or a ſafine different from thoſe
which the claimant had ſpecified, as inſtructing his right to the
lands. But to this it was effectually anſwered, That although
the law requires a claimant to ſpecify his old extent, or valuation,
it no where ſays, that the evidence by which that extent or valua-
tion is to be ſupported muſt alſo be condeſcended upon ; and that
accordingly it is believed to be a general pračtice, in claiming upon
* Pages 153. & 154. f See this caſe again quoted, p. 26.
I6 E L E CT I O N C A S E S.
an old extent, to ſtate, That the lands will be proved to be a forty
ſhilling-land of old extent, by a retour prior to 16th September
1681 ; or, if upon valued rent, that they will be proved to be
valued at L. 4oo and upwards, by a certificate: That in this
caſe, indeed, the claim did refer to a particular retour different
from the one in queſtion, but that, as the law does not require
any ſuch thing, the claimant's ſpecifying one piece of evidence,
when obliged to ſpecify none, cannot hinder him from produ-
cing another piece of evidence equally good: That it has long
been a fixed point, that evidence of every kind may be produ-
ced, even in the courſe of a complaint, to explain an uncertain-
ty, or remove an objećtion; and that, if ſo, much more ought
ſuch evidence to be received in the original Court of Freeholders.
IN like manner, although it has been the conſtant pračtice,
and is certainly very proper, for the claim to bear the date
and place of recording the ſafine, and although law requires the
ſafine to be, defatio, recorded for year and day, prior to enrolment;
yet as the ſtatute enumerates all the circumſtances to be ſet forth,
without making any mention of the regiſtration of the ſafine,
and as the aët, (being correótory of the former law, and all the
preſcriptions therein contained creatures of the ſtatute,) is not
to be extended by conſtruction and implication, which is juſt
the ſame as making an addition to its preſcriptions, it may be
fairly queſtioned, if to ſpecify the regiſtration muſt be held as
an indiſpenſible requiſite in every caſe; more eſpecially as the
ſame act (16. Geo. II.) eſtabliſhed the neceſſity of previous regiſtra-
tion for a year, and muſt therefore have ſpecified, if it had meant
to require, the date of regiſtration, as one of the particulars to
be condeſcended on in the claim. In a very late caſe from For-
farſhire”, the obječtion “ That the claim did not at all ſpecify
“ the regiſter in which the claimant's ſafine was recorded, ha-
ving been repelled by the Freeholders, the Court of Seſſion, up-
on adviſing a complaint by one of them, with anſwers, replies,
and duplies, affirmed their judgment, and awarded expences
* 26th Feb. 1796, James Lindſay Carnegie, Eſq; of Spynie and Boyſack, contra Charles
Gardyne, Eſq; . .
º againſt
F R. E. E. H. O L D E R S R O L L. 17
againſt the party who complained of it. And this, although
it was pleaded by the complainer, that ſince both the ſtatute laſt
mentioned, and the previous one of 12 Queen Anne, cap. 6.
§ 1. require the ſafine to be regiſtered for a certain time before
enrolment, regiſtration of the ſaſine is thereby chiefly made an
eſſential ingredient in the qualification; and that therefore the
expreſſion “ dates' in the act of the late King muſt apply equal-
ly to the regiſtration, as to the taking, of the ſafine.
ON the ſame day, there occurred, from the ſame county, a
caſe, in which it was objected, That the claim had not ſpecified
the year of regiſtration. The claim run thus: “Which charter
‘ bears date the 5th day of July 1794, and is written to the ſeal,
‘ and regiſtered, and ſealed the 9th day of September 1794:
‘ 2d, Inſtrument of ſafine thereon, dated the 23d of September,
‘ and recorded in the particular regiſter of ſafines kept at Dun-
‘ dee, for the ſhire of Forfar, the 24th of ſaid month.” But it
being anſwered, that the “ ſaid month’ clearly referred to the
year laſt ſpecified, eſpecially as no other month of September
had occurred betwixt the date of the charter and the ſafine found-
ed on, and the lodging of the claim, the Court repelled the ob--
jećtion*.
THESE two caſes, it muſt be confeſſed, were extremely fa- -
vourable on the part of the claimaints, particularly the laſt, where
the year of regiſtration was as evident to every reader, as if it
had been certified in the moſt expreſs terms. Even in the firſt
of them, nothing of importance was concealed from the Free-
holders, and the oniſſion could occaſion little or none of that
‘ ſurpriſe’ which claims were intended to prevent, as the claim-
ant's ſafine behoved to be recorded in one of two regiſters, (either
the general or particular regiſter of ſafines,) ſo that if not diſcover-
ed in the one, of the date condeſcended on, it would have been no
great trouble to the Freeholders to have had recourſe to the other.
If, therefore, in any future caſe, there ſhould be either a total or
partial omiſſion in ſpecifying the regiſtration of the ſafine, it may
be very difficult to predićt the fate of the objećtion; or rather, not--
* 26th February 1796, Lindſay Carnegie contra Lindſay.
C. withſtanding
I 8 E L E C T I O N C A S E S.
withſtanding all arguments drawn from the words or the correc-
tory nature of the ſtatute, the probability is that ſuch an obječtion
would be ſuſtained. As a claimant is under no neceſſity of
lodging his titles along with his claim, nor of producing them
ſooner than at the Michaelmas meeting, the freeholders have,
in the interim, no further information reſpecting the nature or
validity of thoſe titles than what he himſelf ſets forth; and al-
though it may be ſaid, as has been done in ſome of theſe late
caſes, that, as every ſafine bears an atteſtation of the date of re-
cording, the Freeholders can eaſily ſee by a ſingle glance of it,
when produced at their meeting, whether it has been recorded a
competent time before enrolment or not; yet this is not all, nor the
moſt important part of the information which they ought pre-
viouſly to have. Indeed, from the ſtatutory requiſites of a claim
of enrolment, it ſeems intended not ſo much to contain the ne-
ceſſary information, as to afford the means of procuring it. Of
all the flaws which have from time to time been diſcovered in
the titles and qualifications of Freeholders, a very ſmall part ſurely
could have been diſcovered by a curſory glance at a public meet-
ing ; and not to mention other inſtances, witneſs the noted caſe
of Grey contra Hope, 23d February 1790, to be afterwards more
particularly mentioned, where the ſafine was imperfeótly tran-
ſcribed into the record; a defeót which could be diſcovered no
otherwiſe than by inſpection of the book itſelf.
ANY miſnomer or inaccuracy in ſtating the name of a clai-
mant will always be fatal to a claim ; and for this there is the
direét authority of the ſtatute 16 Geo. II. ſo often mentioned;
for although it does not in ſo many words direct every claim
to ſet forth the name of its author, (as indeed what ſtatute could
be ſo abſurd as to doubt the neceſſity of ſo doing 2) yet its terms
are perfeótly expreſs to the ſame purpoſe, bearing that the clai-
mant muſt lodge a copy of his claim, ſetting forth the names of
his lands, and his titles thereto, and the dates thereof, with the
old extent, or valuation upon which he claims to be enrolled.
This doćtrine was confirmed in the following caſe: A claim of
enrolment was lodged with the Sheriff-clerk of Ayrſhire, in the
name of Lieutenant john Cameron of the Weſt Fencible Regi-
ment; and a perſon was enrolled at the Michaelmas meeting of
that
FR E E H O L D E R S R O L L. I 9
that county, 1780, who, as it afterwards appeared, was not
Lieut. John Cameron, but Lieut. Duncan Cameron. A com-
plaint having been brought againſt this enrolment, on account
of the miſnomer, Mr Cameron pleaded that it could be proved.
that he had agreed to accept of a liferent-qualification in the coun-
ty; and that he was baptized by the name of Duncan John : That
though he held his commiſſion under the name of Duncan, yet
the deſignation of Lieut. Cameron of the Weſt Fencible re-
giment, would have been ſufficient, there being no other officer of
the name of Cameron in the regiment at the time; and that the
addition of John was no miſnomer, for that though not the whole,
it was part of his chriſtian name. This ingenious argument,
however, had no weight with the Court, for they found, “That
* the Freeholders had done wrong in enrolling the reſpondent
‘ under the name of Lieut. John Cameron, and granted warrant-
* for expunging him.”
It has been already ſaid that nothing is neceſſary to be inſert--
ed in a claim of enrolment, except what is ſtrićtly pointed out
and required by the ſtatute; and although there is no harm in
thoſe who think a claim cannot be too full, giving ſuch farther
ſpecification as ſhall ſerve to remove their ſcruples, they ought,
even in ſuch ſuperfluous parts of their claim, to ſtate nothing
incorreótly, or what may have a tendency to miſlead the Free-
holders, or diſguiſe the truth; becauſe gentlemen are ſuppoſed
to come to the meeting prepared to vote for, or againſt the
claimant, in the belief that he has given them an accurate
account of his qualification; ſo that if any thing ſhall ap-
pear to be miſtated, they have it to ſay, that this is not the
the caſe on which they had formed their opinion: They may
therefore rejećt the claim without farther ceremony. On this
ground the Court decided 5th January 1762, in the caſe of Gol-
die, referred to by Mr Wight, p. 15.2. rejećting a claim which
deſcribed the ſafine as regiſtered at Dumfries, whereas it was in
fact regiſtered at Edinburgh. There, as in the caſe of Mr Gar--
* 8th February 1781, Dalrymple of Orangefield contra Cameron,
C 2. . dyne, -
º
-20 ELECTION CAS Es.
dyne, the claimant defended himſelf upon the words of the ſta-
tute, which, it was ſaid, made no mention of the date of regiſtra-
tion at all. But (what ſufficiently diſtinguiſhes the two caſes)
whether the ſtatute required any ſuch thing or not was immate-
rial, as a faſe ſtatement had been given. Many other caſes might
be figured. For inſtance, a claim ſetting forth lands as holden
of the Prince while in fact they held of the King, or vice verſa,
would certainly be rejected, although there is no law which re-
quires the holding to be ſpecified. The following deciſion muſt
have proceeded upon the ſame principle, and can be accounted
for on no other. At Michaelmas 1789, Lieut.-Col. Murray pre-
ſented a claim for enrolment to the Freeholders of Perthſhire, ſet-
ting forth, “That the claimant ſtands publicly infeft, holding of
“ the Crown, in all and whole the half of all and whole the lands
* of Ruſkie, with themanor place, &c. lying, &c. conform to a char-
* ter under the Great Seal in favour of Francis Lord Napier, dated
* &c. and his Lordſhip's diſpoſition of the ſaid lands, and aſſigna-
‘tion to the ſaid charter and precept of ſafine therein contained, in
favour of the ſaid Lieut.-Col. Alexander Murray, dated, &c. and
‘ his the ſaid Lieut.-Col. Alexander Murray's inſtrument of ſa-
• fine taken upon the ſaid charter, and diſpoſition and aſſignation
* thereto, dated, &c.’ The titles claimed on were not pro-
duced ſooner than the Michaelmas meeting, when it was object-
ed., That the claim ſet forth the claimant's title as if he had been
in the abſolute fee of the property or ſuperiority, whereas it ap-
peared by his titles that he was only poſſeſſed of a liferent. This
objećtion having been ſuſtained by the Freeholders, the Colonel
gave in a complaint; when the objećtors pleaded, That the ſtatute
requires a claim to ſet forth the claimant's titles, which cannot be
otherwiſe done than by deſcribing the ſubječts which they compre-
hend : That here there is at leaſt an error in the deſcription
of the titles contained in his claim, or rather it totally miſ-
repreſents their nature: That the claimant is not infeft con-
form to Lord Napier's charter, which contains both the pro-
perty and ſuperiority; and the conveyance is not of the ſaid
lands, nor the aſſignation to the ſaid charter and precept:
And that any other conſtruction of the word “Titles' would ſu-
perſede
º
F RE'E HOLD F. RS ROLL. 2 I
perſede any ſpecification but of their dates ; whereas the ſtatute
has required both the titles and dates to be ſpecified. To this it
was anſwered, That it is a miſtake to ſuppoſe that the ſetting forth
the titles to the lands, and ſetting forth the nature of the claim-
ant's right, are ſynonymous. By the titles, is meant the writing
by which the claimant’s right is conſtituted, the charters, infeft-
ment, &c. This it is apprehended is the meaning of the word,
whether conſidered as a technical one, or in the common accepta-
tion. In this ſenſe is the word uniformly uſed in the above
ſtatute. Thus it provides “ that no heir-apparent ſhall be enrol-
‘ led until his predeceſſor's titles are produced, and allowed by
the Freeholders as a ſufficient qualification for his voting for a
member of parliament.’ And again, “that any perſon may be
enrolled, though abſent at the time of ſuch enrolment, provid-
‘ ed the titles and vouchers of his qualification are produced and
* laid before the Freeholders.’ It is likewiſe evident that the
word was meant in the ſame ſenſe in the very clauſe on which
the objećtion is founded, as appears from the words that imme-
diately follow viz. and dates THEREOF, that is ſurely the dates of
the writings, viz. of the charter, infeftment, &c. To ſpeak of
the dates of the fee, or of the ſuperiority, &c. would certainly
be a very unuſual mode of expreſſion.—When this cauſe was ad-
viſed, it is believed none of their Lordſhips were of opinion, that
it was neceſſary to mention, in the claim, whether a claimant's
right was that of a liferent or a fee. But the ſtatement of the
claimant's right contained in it appeared to be purpoſely ſo fram-
ed, as to impreſs any perſon who looked at the claim, with a
belief and convićtion that the right was a fee inſtead of a
liferent ; and therefore, though a real and ſubſtantial infeftment
in a liferent does, by ſtatute 1681, afford as good a title for en-
rolment as an infeftment in fee; yet as the claim deſcribed an
infeftment of a fee in place of a liferent, the Court affirmed the
judgment of the Freeholders, firſt upon adviſing the complaint,
with anſwers, replies, and duplies, and afterwards upon advi-
ſing a reclaiming petition and anſwers *.
* 16th May 1790, Lieutenant-Colonel Alexander Murray contra Alexander Muir Mac-
kenzie of Delvin, Eſq.
A
*
22 E L E C T ION CAS E. S.
A very late deciſion ſhows that the Court by no means holds
it neceſſary for a claimant to ſpecify the particular chara&ter in
which he claims enrolment. Mr Mackay of Scotſtown claimed
at Michaelmas laſt to be enrolled a freeholder in Sutherlandſhire,
and produced, as his titles, a charter and ſafine of certain lands,
which are there ſaid to be contained in two contračts of wadſet;
but the claim did not ſpecify whether Mr Mackay claimed as
wadſetter or proprietor, nor were the contračts of wadſet pro-
duced to the meeting. This, among many other objections,
having been ſtated, the Freeholders refuſed to enrol Mr Mackay,
who thereupon complained to the Court of Seſſion; and after
adviſing the complaint, with anſwers, replies, and duplies, the
Court ordered Mr Mackay to be added to the roll*. A reclaim-
ing petition was refuſed, without anſwers, 9th March.
THE general inference from all theſe caſes ſeems fairly to be,
that though it may be unneceſſary for a claimant to detail his
titles more particularly than the words of the ſtatute require, yet
if he ſhall volunteer in doing ſo, the detail which he gives muſt be
fair and accurate. He is not obliged to afford the Freeholders
this ſpecial information at all, but he muſt not miſlead their in-
quiries by a falſe ſtatement of his fituation and right.
*. 24th Feb. 1796, Mackay of Scotſtown contra Houſton of Creech.
CHAP,
FREEHOLDERS QUALIFICATION. 23
C. H. A. P. II.
Of the Qualifications neceſſary to entitle a perſon to be enrolled a Free-
holder.
HE requiſite qualifications of a Freeholder, ſo far as reſpects
his title, were adjuſted by the ſtatute 1681, c. 21. upon which
ſome very ſlight alterations were made by the ſtatute 12 Queen
Anne, and 16 George II. The aët 1681 provides, ‘ that none ſhall
‘ have a vote in the eleētion of Commiſſioners for ſhires, or
* ſtewartries, which have been in uſe to be repreſented in parlia-
ment and conventions, but thoſe who, at that time, ſhall be
publicly infeft in property or ſuperiority, and in poſſeſſion of a
forty ſhilling-land of old extent, holden of the King or Prince,
diſtinét from the feu-duties, in feu-lands; or where the ſaid
old extent appears not, ſhall be infeft in lands liable in public
burden, for his Majeſty's ſupplies, for L. 4oo of valued rent,
whether kirk-lands now holden of the King, or other lands
holding feu, ward, or blench of his Majeſty as King or Prince
of Scotland.”
THESE qualifications Mr Wight conſiders in the following or-
der: 1/f, That the land, upon which the vote is claimed, be
either a forty ſhilling land of old extent, or amount to L. 4oo
Scots of valued rent. 2dly, That ſuch lands hold immediately
of the King or Prince. 3dly, That the claimant be infeft. And
4thly, That he be in poſſeſſion.—And although upon ſome of
theſe branches there may be little to add to what has been ſo well
laid down by Mr Wight; yet, as the order which he adopts is,
in ſome meaſure, ſuggeſted by the ſtatute itſelf, and as it is al-
ways proper for a Supplement to adhere to the plan of the origi-
nal work, I ſhall not make any deviation from that of Mr Wight.
THE
&&&&6&éÇ&
24 - . E L E C T I O N C A S E S. .
THE firſt qualification divides into two parts: the ‘forty ſhil-
* ling land of old extent;’ and “ the land of L. 4oo of valued
* rent.’
By the old extent of lands is meant the ſum at which their
value is eſtimated, by an ancient cenſus or general valuation of all.
the lands in Scotland, and continued by ſubſequent retours.
When, or upon what particular occaſion, this cenſus was made,
is a ſubjećt that has been much conteſted of late, both by anti-
quaries and by lawyers. For a particular diſcuſſion of the
hiſtory of the old as well as of the new extent, (commonly cal-
led the retoured-duty,) the reader is referred to Mr Wight, p. 160.
et ſeq.; to Mr Erſkine's larger Inſtitute, Book 2. tit. 5. § 31. 32.
33. 34, and 35. ; and, above all to a very elegant and ingenious
inveſtigation of the ſubjećt, by Lord Kames, in the laſt of his
Hiſtorical Law Traćts, which, with a few obſervations in Lord
Hails's Annals of Scotland, contains all that is known with
reſpect to the old and new extent, ,”
WHEN a claim is entered for enrolment upon a forty ſhilling
land of old extent, the ſtat. 16 Geo. II. c. I I. requires, that ſuch
extent ſhall be proved by a retour, prior to the 16th of September
1681, to the excluſion of all other evidence, Nor is it every part,
even of ſuch a retour, that will be received as evidence. It happens
in many caſes, that in the beginning of the retour, where the
names and deſcriptions of the lands are inſerted, and which is
therefore called the deſcriptive clauſe,they have no otherdiſtinguiſh-
ing appellation than that of ſuch a pound-land, merk-land, or
ſhilling-land, &c. of old extent; while every retour muſt bear to-
wards the end, (in anſwer to the fifth head of the Brief,) the
old extent of the lands, as proved to the inqueſt; on which ac-
count this laſt is termed the valent clauſe. It is this clauſe alone
which is received as evidence of the old extent in all caſes of en-
rolment. The deſcriptive clauſe, taken by itſelf, is in no caſe
regarded, as it is inſerted, often pretty much at random, by the
Doer for the party retoured, and nothing is more common than to
find erroneous deſcriptions in retours as well as in charters or
other
FREEHOLDERS QUALIFCATION. 2.5
other titles; whereas the valent is adjuſted and returned by the
Jury upon oath. It is no doubt true, and has been often decided,
that the component parts of a cumulo valent may be explained by
reference to the deſcriptive clauſe, provided the ſeveral values in
the deſcriptive clauſe, when added together, amount to the ſum
total in the valent ; and this, even though there ſhould be a
ſmall diſcrepancy, eſpecially if the amount of the deſcriptive
clauſe is leſs than that of the valent. But ſtill the whole lands muſt
be in the valent, and the want of a valent, in whole or in part,
can never be made out or ſupplied by inference, or extrinſic evi-
dence of any kind. The deſcriptive clauſe correſponds to the ru-
bric of an act of parliament, which, though it may be uſed to
illuſtrate the body of the law, has not, in itſelf, the force of a
ſtatutory enactment.
SUcH ſeems to have been the ruling principle of judgment in
ſeveral caſes cited by Mr Wight, particularly in that of Murray of
Broughton, contra Clark (referred to in p. 170.) and which was
decided upon the 14th July 1774. And the two following caſes,
both decided upon one and the ſame day, when the diſtinétion
muſt have been fully before the Court, as the deciſions were op-
poſite, appear to illuſtrate and fully to warrant the doćtrine now
laid down. Mr John Millar junior Advocate, claimed enrolment
as a Freeholder for Renfrewſhire, at the meeting for election 1786,
and in proof of the old extent, his claim referred to a retour
dated 17th March 1646, bearing in the deſcriptive clauſe, ‘om-
nes et ſingulas duas quartas partes terrarum de Arthurlie, cum
pertinen. extenden. ad tres libratas, ſex ſolidatas, et oëto dena-
riatas terrarum antiqui extentus, cum officiis Coronatoriae et
Marisfeodi occidentalis wardae de Strathgrief, et ſuperioris
wardae de Renfrew:’ And in the valent, “ Et quod dićtae
dua partes dićtarum terrarum de Arthurlie, et officia Co-
ronatoriae et Marisfeodi, valent nunc per annum, ſummam vi-
ginti Quinque mercarum, et valuerunt tempore pacis, ſummam
trium librarum ſex ſolidorum et oéto denariorum, uſualis mo–
netae dićti regni Scotiae.’ It was obječted to this retour, that
the offices of coroner and mair offee, along with which the lands
Were
26 E L E C T I O N C A S E S.
were valued, being now in diſuſe, the claimant could not be in
poſſeſſion of them ; and that at any rate, they could not give a
freehold qualification, that privilege being confined to lands.
And no doubt had there been nothing more in the caſe, the ob-
jećtion would have been good, as it had been expreſsly found in
the caſe of Mr Andrew Stewart, 14th Jan. 1761, (quoted by Mr
Wight, p. 202.) that theſe very offices in another county gave no
qualification. But in this caſe the Court ſuſtained this anſwer,
That the ſeparate value of the lands was diſtinétly and accurately
aſcertained, and no value whatever put upon theſe offices, as ap-
peared, 1/f, from the retour founded on, in which the total a-
mount of the ſum in the valent agreed preciſely with the value
of the other articles (viz. the lands alone) as ſpecified in the de-
ſcriptive; and 2dly, from another retour dated 7th May 1616, which,
though not mentioned in the claim, had been produced at the Free-
holders' meeting *, and which certified in the deſcriptive clauſe,
That Alexander Cunningham died veſted and ſeiſed, inter alia, “In
‘ quarta parte totarum et integrarum terrarum de Arthurlie, cum
ſuis pertinen, in proprietate et tenendria; acetiam in officio co-
ronatoris, et marisfeodi occidentalis wardae de Stragryff, et ſupe-
rioris warda de Renfrew: And in the valent, ‘Quod dićta
quarta totarum et integrarum praedićt. terrarum de Arthurlie,
cum ſuis pertinen. nunc valet per annum, L. 6: 13: 4 mone-
taº, et valuit tempore pacis L. I : 13: 4: Et quod dićta officia
Coronatoris et Marisfeodi occidentalis wardae de Stragryff, et
ſuperioris wardae de Renfrew, nunc valent per annum debuto
exercendo ſui ſervitii, et tantum valuerunt tempore pacis f.'
6.&&©&&&©&
THE other caſe alluded to is the following: Mr Thomas Bu-
chanan claimed to be enrolled a Freeholder for Renfrewſhire, at the
ſame time with Mr Millar, inter alia, upon the liferent-ſuperiori-
ty of the lands of Blackburn, which were ſtated to be a 26s. 8d.
land of old extent. In proof of this extent, he produced a re-
tour (dated 25th March 1617) of Robert Sempill of Fullwood,
* Vide Supra, p. 15.
+ zoth Feb. 1787, Scott and Tod centra Millar,
*- which
FREEHOLDERS QUALIFICATION. 27
which bears, that his predeceſſor died infeft “in tota et integra
“ acquali dimidietate viginti ſex ſolidatarum et ecto denariatarum
* terrarum antiqui extentus de Blackburne, extenden. ad trede-
* cim ſolidatarum et quatuor denariatarum terrarum ejuſdem :’
And in the valent, ‘Quod praedićta aequalis dimidietas praedićte
* viginti ſex ſolidatarum, et O&to denariatarum terrarum de Back-
‘ burne, cum pertinen. Valet nunc per annum, tribus libris, ſex
* ſolidis, et oëto denariis, uſualis monetae hujus regni Scotiae :
‘ et tempore pacis valuit tredecem ſolidis, et quatuor demariis, mo–
* neta praedići.” It was objećted to this retour, that it could not
be received as evidence of more than a 13s. 4d. land of old ex-
tent, in which view the freehold qualification would not be made
out. In ſupport of the objection, it was ſaid, The ſtatute 16
George II. requires, that the old extent be proved by a retour of
the lands prior to 16th September 1681 ; but that, in this caſe,
the old extent only of one half of the lands is ſo proved, there be-
ing no legal evidence, nor any thing but inference and conjećture,
as to the old extent of the other half: That the jury, in making
this retour, being limited by the brief and claim to that half in
which the anceſtor died infeft, neither put, nor could mean to
put, any old extent upon the whole lands of Blackburne : That
it is well known that, in many retours, the two halves of an
eſtate (i.e. of what was originally one eſtate) have been very dif.
ferently extended: That it is probable that, at ſome period or
other, the lands may have divided between heirs-portioners, in
right of one of whom the claimant has come, and that when the
old extent was fixed, one portion of the lands may have been
rated higher than the other, as having belonged to the eldeſt,
and conſequently been entitled to a praecipuum : That many other
circumſtances may have occaſioned a variation in the value of
one of the halves, and not of the other; but that theſe circum-
ſtances the complainers need not prove, nor even condeſcend up-
on, it being enough for them to ſay, that the claimant has not
produced legal evidence of the old extent of his whole lands.
The Court accordingly ſuſtained the obječtion *.
* 20th February 1787, William Macdowall contra Thomas Buchanan.
D 2 THE
28 E L E CTION CASEs.
The other branch of the firſt qualification is, that the lands
claimed on ſhall be “liable in public burden for his Majeſty's
* ſupplies, for L. 4co of valued rent.’ By this is meant the valu-
ation put upon the lands by Commiſſioners having power from
Parliament for that purpoſe, and commonly called Commiſſion-
ers of Supply. Commiſſioners for this purpoſe were firſt appoint-
ed in each county during the uſurpation of Oliver Cromwell;
and although the old extent was again reſorted to upon the re-
ſtoration of the monarchy, as the rule for levying public ſub- .
ſidies, it was ſoon afterwards ſuperſeded by a ſyſtem nearly fi-
milar to that adopted by Cromwell's Parliament. By act of Con-
vention 1667, the law, as it preſently ſtands upon this point, was
eſtabliſhed, ſubſequent ſupply acts bearing reference to that of
1667, particularly in regard to the power of the Commiſſion-
ers in rectifying and dividing valuations *.
Thus the whole buſineſs of the valuation of lands, and dividing
and adjuſting the ſame, is committed, in the firſt inſtance, ex-
cluſively to the Commiſſioners of Supply ; but as the valued rent
of an eſtate involves important conſequences, both of a patrimo-
nial and political nature, to the proprietor, the ſupreme Civil
Court has a power of reviewing the decrees of the Commiſſion-
ers, either by way of exception, if irregular in point of form, or
otherwiſe by a redućtion; which, indeed, is the only remedy againſt
ſuch decrees as are, ex facie, formal and complete, and where
the objection is on the head of iniquity, or injuſtice in the Com-
miſſioners who pronounced the decree. Nay, the ſame will even
hold, though it ſhould appear, from the face of the decree itſelf,
that it had been pronounced without ſufficient evidence, or in-
deed without any evidence at all. This diſtinétion has been en-
forced times without number. Several deciſions in proof of it
are quoted by Mr Wight f ; and fince his laſt publication, others
to the ſame purpoſe have been given. Thus, in a caſe decided
.* See upon this ſubject Mr Wight's Inquiry, p. 181, et ſeq.; and Mr Erſkine's Inſtitute,
B. z. tit. 5. § 35. -
H Page 185.
- - upon
FREEHOLDERS QUALIFICATION. 29
|
upon the 9th December 1790 *, it was objećted, that the decree
of diviſion had been pronounced without any proof of the real
rents, except by the parole teſtimony of one of two witneſſes who
were adduced ; the other, the tenant of the grounds, though he
ſwore that the rents ſpecified in his tacks were the real rents
which he paid, neither having deponed to the quantum of theſe
rents, nor figned the tacks as relative to his depoſition. At the ſame
time, the rents contained in his tack agreed preciſely with thoſe
depoſed to by the other witneſs: And the Court found, that
the decree being itſelf formal, muſt abide reduction; and on the
22d January 1791, they awarded expences againſt the party who
had maintained the contrary plea." A ſimilar decifion (though
without coſts) was given f, where, though the proceedings of
the Commiſſioners, prior to decree, were irregular, the decree
itſelf was not ſo : And in one of the Stirlingſhire caſes at laſt ge-
neral election, a deciſion to the ſame purpoſe was alſo given,
even though a proceſs of reduction was in dependence at the
time of ſtating the objection i.
A cAs E ſomewhat different occurred, on that occaſion, from
the ſame county. The lands of Gargunnock were rated in the
original valuation-books of Stirlingſhire at L. 863; 18 ; 8. From
theſe the lands of Fleuchames and Redmains were, on the 8th
April 1740, disjoined by a decree of the Commiſſioners of Sup-
ply, and rated at L. 108. But on the 1ſt May 1753, on a
new application, for the purpoſe of making two votes, the
Commiſſioners, by another decree, divided the whole lands
of Gargunnock conform to their real rents, totally diſregard-
ing the disjunction 1740, and aſſuming the L. 863; 18: 8
as ſtill a cumul, valuation. An objećlion, founded on this inac-
curacy, having been ſtated to the qualification of Sir Alexander
Campbell, the plea of incompetency was ſet up. Both the de-
cree 1740, and that of 1753, taking each of them ſingly and by
itſelf, were indeed ſufficiently formal; but then the obječtion to
the latter, ariſing from the neglect of the prior diviſion 1740, ap--
* Dickſon of Houſebyres contra Douglas of Adderſtone.
+ 23d February 1791, Dundas & Laing contra John Traill.
# December 1790, Cheap contra Morehead.
peared
3O E L E CT ION CAS E. S.
peared from a bare inſpection of the valuation-books of the coun-
ty; and the objećtor argued, That “whatever appears from the
* face of theſe books, which are part of every decree (in as far as
* every decree refers, and muſt neceſſarily refer, to them) in the
‘ eye of law, appears from the face of the decree itſelf. For ex-
‘ ample, if the Commiſſioners had divided a cumulo that did not
‘ exiſt in the valuation-books, or had taken a cumulo at a higher
* rate than it ſtood there, the obječtion would not appear from
* the decree without reſorting to the valuation-books; yet it
‘ would not ſurely be ſaid, that ſuch a decree ought to be re-
* duced in order to found an objećtion, and that an obječtion
* would not be competent in the ſhape of a ſummary complaint.
* The preſent caſe is preciſely the ſame ; for there is no differ-
* ence in principle between the error in throwing together two
* cumulos, already ſeparated, and dividing a cumulo not to be
* found in any of the valuation-books at all.’ The Court ſuſ.
tained the decreet 1753, upon grounds which would have ſup-
ported it even in a reduction; but it is ſaid, in the Faculty Re-
port of the caſe, to have been the opinion of the Bench upon that
occaſion, ‘That as the prior decree was ſufficiently regular, it
* was competent, without any proceſs of redućtion, to challenge
* the ſubſequent one, in which it was diſregarded *.”
THE controuling power of the Court of Seſſion, over the
Commiſſioners of Supply, is by no means confined to that of
rečtifying the inequality or injuſtice of their decrees, divid-
ing or adjuſting valuations; but, on the contrary, is a general and
univerſal power of review, extending to every ſpecies of abuſe
that may occur in the proceedings of the Commiſſioners. Many
deciſions to this purpoſe are cited by Mr Wight, from p. 186.
downwards, in all of which the Court felt themſelves authoriſed
by law to interfere, and give ſuch direétions to the Commiſſion-
ers as might have the effect of conſtraining them to do juſtice
in the particular circumſtances of the caſe.
* 14th December 1790, Sir Alexander Campbell contra Peter Spiers. Affirmed up.
on appeal, 5th March 1796.
THE -
FCEEHOLDERS QUALIFICATION. 31
THE moſt common ſubječt of complaint ſeems to have been a
refuſal on the part of the Commiſſioners to meet, or of their
convener to call a meeting, when required to do ſo by any hav-
ing intereſt. But, for theſe wrongs, the Court have provided
ſuitable remedies, by remitting to the Commiſſioners to proceed
to the execution of the buſineſs required. Where any ſuch re-
mit has been made, either by the Court or the Lord Ordi-
nary on the bills, it has generally been to the whole body of
Commiſſioners, or to any five of their number. From that
circumſtance, and the filence of the land-tax acts as to what
number of Commiſſioners makes a quorum, it had come to
be a prevailing opinion that five in every caſe, and no fewer,
were a legal quorum. Mr Wight, at page 194, ſeems to incline
to this opinion. But, in a late caſe from Renfrewſhire”, the
Court were of opinion, that the preſence of five Commiſſion-
ers was not requiſite, though it was unneceſſary for their
Lordſhips in that caſe to give any expreſs judgment upon the
point. The ſpecies fači; there was this: Mr Macdowall was en-
rolled upon lands valued at L. 41.2 : 15 : 7 Scots. Theſe were
part of the barony of Houſtoun, from which they were divided
by two decrees of the Commiſſioners of Supply, 14th Dec. 1784,
and 26th March 1785. At the meeting on the 14th December,
of five.Commiſſioners preſent, only one had qualified, by tak-
ing the oath to government; and at a meeting on the 19th of
March (of which that on the 26th was an adjournment) there
were preſent only five perſons including the clerk of ſupply, .
none of whom excepting one had qualified. On theſe circum- .
ſtances, it was obječted, that the meeting 26th March “was an
* illegal meeting, being appointed by perſons who were no Com-
* miſſioners, and who had as little title to appoint a ſubſequent
* meeting as they had to act at the former meetings, without
“ having qualified themſelves in any ſhape for the office of Com-
* miſſioners, under the act of ſupply.” In ſupport of this ob-
jećtion an appeal was made to the interlocutors of the Court of
Seſſion, in the Forfar, Banff, and Ayrſhire caſes, mentioned by
Mr Wight, as ſhowing an underſtanding of the Court, that ſuch
a number was in all caſes neceſſary; and it was ſaid, that in .
* Campbell of Blythſwood and others contra John Macdowall merchant in Glaſgow,
decided zoth February 1787. sº
- adopting
3. T. L. E. C. TI O N C A S.E. S.
adopting this number the Court might perhaps have in view the
regulation of the reſcinded act 1649, c. 21. entitled, ‘A&t and
* commiſſion for a new valuation, which expreſsly enacted,
* That the major part of the Commiſſioners named ſhould be a
* quorum”; and if the major part exceed five, five to be a quo-
* rum.” To this it was anſwered, That there is not one word either
in the ſtatute under which the Commiſſioners here a&ted, or in any
other of the land-tax acts, to make a particular number neceſſary
as a quorum: That, on the contrary, the very act 1784 appoints
* That all and every the perſon and perſons who in and by, &c. were
* named, appointed, or authoriſed, &c. be Commiſſioners for
* ordering, levying, and raiſing the ſupplies for Scotland, &c.’
That where parliament delegates power and authority to any
perſons of a particular deſcription, and poſſeſſed of particular
qualifications, if a certain quorum is not fixed, no ſmaller number
can act; but otherwiſe, in no inſtance whatever has any number
or quorum been found requiſite by any court; nothing more be-
ing neceſſary than that the meetings at which the delegated powers
are to be excerciſed, and the buſineſs is to be done, be legally ap-
pointed; and when that is the caſe, it is of no conſequence, as to
the validity of the proceedings, whether theſe meetings are nu-
merous, or whether they conſiſt only of two, or even of one of
the Commiſſioners only : That the act 1681. 21. ordains the
whole Freeholders to meet annually for reviſing their roll; and
16 Geo. II. declares “that ſuch perſons as ſtand upon the roll laſt
* made up by the Freeholders ſhall be the original conſtituent
* members at their next Michalmas meeting, or meeting for elec-
* tion.” But it will not be ſaid that any certain member is neceſ.
ſary to proceed to buſineſs; and one has been found ſufficient to
conſtitute a meeting : That by the complainer's doćtrine, if five
Commiſſioners cannot be got to attend, nothing can be done, not
even the nomination of a convener, nor ſo much as an adjourn-
ment; ſo that the whole buſineſs of the county muſt be ſuſpended
for a year: That in the caſes where the Court of Seſſion has in-
terpoſed, nothing more was meant than to make proviſion for
* In another branch of the duty of Commiſſioners of Supply, that of ſettling parochial
fehools upon application of the preſbytery, five are declared a quorum ſtat. 1646. 17.;
1696. 26.
obtaining
FREEHOLDERS QUALIFICATION." 33
obtaining juſtice to the parties, and to guard againſt jobbing in
the particular circumſtances complained of; otherwiſe they would.
have aſſumed a legiſlative power: That the annual land-tax acts
cannot be explained, either by ſtatutes paſſed during the time of
uſurpation (1649) or even by regular ačts of the Scotch Parlia-
ment, calculated not for the purpoſe of levying the ceſs according
to a valuation already eſtabliſhed, but for fixing the general and ori-
ginal valuation of all the lands in the kingdom. As well might it be
argued from the ſtatutes 1587, c. 1 14, and 1597, c. 27. that no
Commiſſioner from a ſhire can be elected without a certain num-
ber of the Freeholders being preſent: That the Scots ſtatutes, if
they have any influence, go againſt the complainer's plea ; for by .
aćt 1690 “the major part of the Commiſſioners who ſhall meet at
“ the ſaid firſt diet, or at any other diet thereafter, are empower-
‘ed to proceed :' And that the act of ſupply in 1706 is equal-
ly general.—The Court accordingly, at adviſing this cauſe, were
of opinion, that the particular number of five Commiſſioners
was not neceſſary; but it has not been in any caſe fixed what
number is requiſite. At the ſame time, from what has been
ſtated, there ſeems nothing in the land-tax adts to prevent a di-
viſion from being legally made even by one Commiſſioner, pro-
vided always nothing unfair or partial can be alledged..
Exception was alſo taken in this caſe to the Clerk of Supply's
aćting as a Commiſſioner, which was contended to be as irregular
as a ſheriff-clerk or town-clerk ačting as Sheriff or Magiſtrate.
But there was nothing in this objection, which indeed, did not
ſeem to be very ſtrenuouſly inſiſted on. The clerk ſtood by name
in the liſt of commiſſioners, and had not only qualified, but
had been in uſe to act. There is certainly nothing in the land-
tax acts, to prevent the Commiſſioners from appointing one of
their number to be clerk. A Freeholder does not loſe his vote,
by being clerk to a meeting of Freeholders; and there is no ſort
of analogy between Commiſſioners of Supply, appointed by Par-
liament, to ſuperintend the levying of a certain branch of the
ublic revenue, and the ordinary courts of law. In the county,
of Renfrew, it was ſaid, ſcarcely any diviſions had taken place,
in which the clerk had not acted as commiſſioner.
** E. IT .
34 E L E C T I O N C A S E S.
IT will be obſerved, from the ſtate of the fact in this caſe,
which has been given, that in the obječtion of no quorum,
it muſt have been implied, that ſuch only of the Commiſſion-
ers as had qualified to government could legally act; becauſe,
if thoſe in that fituation were reckoned, there had in every ſtage
of the diviſion, been five Commiſſioners preſent. That therefore
was a third objećtion to the decree, and was founded chiefly
upon a deciſion pronounced by the Court, ſoon after the rebel-
lion 1745, when the ſpirit of diſaffection was not extinguiſhed. Mr
Wight, who obſerves this caſe p. 195, ſeems to diſapprove of it;
and indeed, there appears great reaſon to doubt of its being found-
ed in law. Both the Scotch acts before the Union, and the Britiſh
ačts ſince, appointing the oaths to Government, impoſe certain pe-
nalties on perſons refuſing or delaying to take theſe oaths, but do
not ſuperadd a forfeiture of the acts and deeds done by the per-
ſons refuſing or delaying ; 1661.. I 1. ; 1685. 17. ; and 1693. 6.
This laſt, indeed, declares that ſuch perſons ſhall be deprived
of their offices ; but does not declare that all that they have done,
while in the offices, ſhall be null. After the Union, it be-
came neceſſary to impoſe new oaths adapted to the new order of
things; and by ſtatute 6 Anne c. 14. the perſons who refuſe to
take them, are declared incapable of holding the offices in reſpect
of which the oaths were impoſed, and the offices are declared to
be null and void. But that by this cannot be meant an ipſº facio
avoidance or forfeiture, ſeems clear from other parts of the act,
which not only allow the party to take the oaths at any time
within three months “ after his admittance into the office; but
impoſe penalties on thoſe who, after refuſing or neglecting to take
the oaths, continue to execute their offices. There are indeed ex-
preſſions in one ſtatute, (1 Geo. I. c. 13.) which appear to infer
an ipſo fačio forfeiture; but even theſe are obviated by the terms
of the annual acts of indemnity, which contain no other limita-
tions than this, that “they ſhall not reſtore or entitle any perſon
“ or perſons, to any office, employment, benefice, matter, or
“ thing whatſoever, ačiually avoided by judgment of any of his Majeſ:
* ty's Courts of record.”
As
FREEHOLDERS QUALIFICATION. 35
As to the land-tax acts, which apply more particularly to Com-
miſſioners, it appears from their general tenor to be a clear diſ-
ability, that the Commiſſioners want the requiſite property in
land; but theſe acts do not ſeem to make the ſame conſequence
to follow the omiſſion to take the oaths to Government; and
there is a remarkable diſtinétion in the terms in which the two
different requiſites are provided. With regard to the for-
mer, it is ſaid, that none of the perſons therein named ‘ ſhall
* be enabled or capable to be a commiſſioner of the land-tax,
* or for executing the ſeveral powers, and things herein enaët-
‘ ed, without being poſſeſſed of lands of the requiſite extent.
But the clauſe with regard to qualifying to government is ex-
preſſed differently, not bearing that the perſons who have ne-
glečted to do ſo, ſhall be incapable to act, but only requiring them
to take theſe oaths, under pain of forfeiting L. 20 Sterling. Theſe
oaths are not confined to Commiſſioners of Supply, but extend to
all perſons in offices of public truſt, e. g. to judges, public nota-
ries, &c. But it would be indeed an extraordinary doćtrine
to hold every decree or inſtrument as null, that had been pro-
nounced or taken without that precaution. The conſequences of
ſuch a doćtrine, even in the caſe of Commiſſioners of Supply,
would be often very prejudicial to third parties, who have in ge-
neral no means of knowing whether the Commiſſioners to whom
they apply have taken the oaths or not ; there being no record ap-
pointed for the information of the public reſpecting that matter.
At any rate, ſuch conſequences would reſult from holding it as
law, that all the members of a meeting for adjournment muſt me--
ceſſarily have ſworn the oaths. In addition to theſe reaſonings,
there were adduced, in this gaſe, many inſtances in Renfrewſhire,
where valuations had been divided by commiſſioners, of whom,
in one caſe, none, and in other caſes, where only one or two had
qualified. And an inquiry having been made in ſeveral coun-
ties, the ſame relexation appeared to ha e taken place ; particu-
larly in Ayrſhire, where certainly, if experience makes proficiency,
politics muſt be reduced to a ſcience, it was certified by the Clerk
to the Commiſſioners of Supply, who had been many years in
office, That he never knew one inſtance of their taking the
‘ oaths to government at any meeting, except the general meet-
2 * ing
36 E L E C T I O N C A S E S.
“ing the 30th April. The oaths are only produced at that meet-
* ing, and never called for at any other. Upon a new nomina-
* tion coming down, I ſhould think it requiſite to take the oaths
to the firſt meeting thereafter, that ſuch new Commiſſioners
might, if preſent, be qualified. But that has not happened
here; as I obſerve from the rolls of the oaths, no Commiſſion-
ers have ever qualified, but at the general meeting in April
yearly. Was therefore ſuch objećtion to be ſuſtained upon a di-
viſion of valuation, few or NoNE which have taken place in this
county for many years paſt, but what might be challengeable on that
* head,” &c. The ſame practice was found to prevail in the
counties of Aberdeen, Stirling, and Forfar; and it was even ſaid,
that in Dumfriesſhire, and the ſtewartry of Kirkcudbright, the
Commiſſioners never qualify but once in the courſe of a Parliament,
viz. when the ſeparate act, containing the names of the intended
commiſſioners, is paſſed. There came to be no neceſſity to de-
cide upon this obječtion to the decree in queſtion, becauſe, poſte-
rior to its date, the uſual act of indemnity had paſſed, ratifying
the proceedings of perſons who had acted in offices of public
truſt, without taking the oaths appointed by law. The Report-
er of this caſe does, however, tell us, that “ The Lords were u-
‘ nanimouſly of opinion, That the Commiſſioners neglecting to
* take the oaths was not a nullity in the proceedings; and that
“ the caſe of Sutherland in 1751, was erroneouſly decided. Be-
‘ ſides, that as the decreet of diviſion here challenged had been
pronounced at a meeting of Commiſſioners duly qualified, the
circumſtance of its being held in purſuance of an adjournment,
directed by a meeting at which the legal number of commiſ-
‘ fioners was not preſent, could not afford a relevant objection *.
The omiſſion to take the oaths was either a diſqualification, or
it was not. If it was a diſqualification, thoſe who were under it
could as little adjourn, as they could act. If it was not a diſ-
qualification, then it could not apply either to meetings for bu-
fineſs, or meetings for adjournment.
.
* It may be obſerved with regard to theſe three objećtions, that they were at the
ſame time before the Court in other two caſes, that of Mr William Ingram merchant in
Glaſgow, and of Mr John Douglas ; both of whom, as well as Mr. M'Dowall founded
upon the above mentioned decree of diviſion. Of courſe, the fate of the obječtions in the
whole caſes was the ſame. º
WHERE
FREEHOLDERS QUALIFCATION. 37
WHERE a claim of enrolment is laid upon valuation, the claim-
ant muſt ſhow, that his lands ſtand rated at a ſum perfeótly diſ-
tinét and ſeparate from thoſe of every other perſon; becauſe where
the property of more than one perſon is ſtated in cumulo, there
can be no evidence that any one of them is valued at the legal
amount, and the matter becomes inexplicable.
THE common method of dividing cumulo valuations is, and
has been for many years paſt, by a decree of the Commiſſioners
of Supply, pronounced upon an application for that purpoſe, by
the parties intereſted. The mode of proceeding in thoſe applica-
tions, is detailed by Mr Wight, page 184. From the frequency
of ſuch applications, for ſome years paſt, it has become a pretty
general opinion, and has been often pleaded, that the ſeparate
valuation of lands, which once made part of a cumulo, can only
be proved by a regular decree of diviſion of the Commiſſioners.
But for this there is no ſort of foundation, either in the election
ſtatutes, or in the hiſtory of the proceedings of the Commiſſioners.
The ſtatute 1681. c. 21. only requires, that the voter “ſhall be in-
• feft in lands, liable in public burden for his Majeſ'y's ſupplies ;’
and the ſtatute 16 Geo. II. enacts, “ That lands holden of the
• King or Prince, liable in public burdens, for L. 4oo Scots of
* valued rent, ſhall in all caſes be a ſufficient qualification.’
UNTIL within theſe fifty or fixty years, we were almoſt totally
ignorant of the mode of creating or ſupporting a political in-
tereſt, by ſpliting Freehold qualifications. Before that time,
there is no inſtance of any diviſion of a cumulo valuation, except
where the land under the old cumulo paſſed, by ſale, ſucceſſion,
or otherwiſe, into the hands of different proprietors. A diviſion
of the cumulo then became neceſſary, in order to aſcertain the
proportions of the ceſs, according to the ſhare which the new
proprietors had of the old cumulo. The parties were intereſt-
ed, that the diviſion ſhould be properly made, in order that
none of them might be ſubječted to a larger ſhare of the ceſs,
than correſponded to the valuation of the lands which they ac-
quired; and the colleótor of the ceſs had an intereſt, to ſee that
the whole of the old cumulo was exhauſted by the different ſub-
- diviſions.
38 E L E CTION CAS E. S.
diviſions. The intereſt, therefore, of all parties was perfeótly
ſecure, when the Commiſſioners authoriſed a diviſion; when the
valuation of the different parcels of lands was regularly entered
in the colle&tor's book; and when the ceſs was actually levied
in conformity thereto.
THESE reaſons appear ſufficiently to account for the circum-
ſtance, that in few or none of the counties of Scotland, the books
of the Commiſſioners of Supply afford any thing like a regular re-
cord, even for forty years back. A ſolitary inſtance may here and
there be found of a decree of diviſion, even beyond that period.
But in general, either no regular record has ever been kept, or
the grounds and warrants have, in almoſt every inſtance, been
allowed to periſh. The coincidence, however, of the ſum of the
parts, with the total cumulo valuation, affords ſufficient preſump-
tion, that the diviſion has been regularly made ; and the ac-
quieſcence of the parties for the years of preſcription, or any
conſiderable length of time, by paying the ceſs and other pu-
blic burdens, as it will, on the one hand, bind them o the con-
tinuance of ſuch payments in future, ought alſo, on the other
hand, to entitle them to the correſponding privileges.
FRoM theſe, or ſimilar confiderations, the Court of Seſſion
have, in ſeveral inſtances, ſuſtained valuations as divided from
an original cumulo, when no other evidence of it could be produ-
ced, except an entry in the ceſs-books, joined to the uſe of pay-
ment of the ceſs. The firſt caſe in which this queſtion occur-
red, ſeems to have been that of Sutherland of Swinzie, 20th
July 1753, (Select Deciſ. No. 49.) where, though judgment went
upon a different ground, the opinion of the Court is given. Lord
Kaimes ſays, “I can have little doubt, that the uſe of payment of
• the ceſs for 40 years, according to the ceſs-roll, binds all parties,
* the King not excepted; and therefore, is in all views, equivalent
• to a formal decreet of diviſion. The greateſt confuſion muſt
• follow were the law otherwiſe; for how can it be expected,
• that decreets of diviſion are to be preſerved for ever ? Why not
“ provide a remedy againſt the injuries of time, in this parti-
‘‘cular
FEEHOLDERS QUALIFICATION 39
“cular, as well as in all others? The Judges indeed ſeemed to
* be all of this opinion.’
The ſame queſtion occurred in the caſe of Haldane contra
Traill, from Orkney, decided I oth Feb. 1781. In that caſe the
valuation on which Mr Traill claimed (L. 477), neither appear-
ed in any valuation-roll of the county, nor in any of the collec-
tor's books by which the ceſs was levied; yet as he produced re-
ceipts by the colleótors of the land-tax for a period of 37 years,
according to which his valued rent ought to have been fully equal
to what he ſtated it, the Court, it is ſaid, ſeemed to have no
doubt of ſuſtaining this uſage as ſufficient evidence of the amount
of the valued rent, and would accordingly have diſmiſſed the com-
laint that was preſented againſt his enrolment, if it had not been
accidentally diſcovered, the very evening before the cauſe was to
be adviſed, that one of the parcels of land to which ſuch valuation
was applicable, viz. to the two-penny land of Newbigging, though
contained in his grand-father's retour, had been omitted in the
ſafine following on the precept from Chancery.
MoRE lately the point has received an expreſs judgment of
the Court, in the folowing caſe: At Michaelmas 1789, the Ho-
nourable Henry Erſkine claimed to be enrolled a Freeholder in
Linlithgowſhire, inter alia, upon the Superiority of Napier's part
of Little Blackburn. The whole lands of Little Blackburn ſtood
rated at L. 366: 13s. both in the original valuation of the county,
dated 27th May 1667, and in a ſubſequent one in 1687. But,
in a third book, entitled “Martinmas 1702, there is this entry:
• William Napier's part of Little Blackburn L. 194 15 Io
‘John Meik's heirs sº I5 5 6
, L. 2 Io I 4
The ſame entries occur in 28 valuation-books between that year
and 1749; in the book of which year there is this entry :
* John
40 ELECTION CASEs.
‘John Meik's part to be added to R. Napier's L. 15 15 6.
IN five valuation-books from that period to 1757, the lands
are entered under one article, ‘Napier's part of Little Blackburn
L. 210 : 1 I : 4.” They are ſo ſtated in the book made up in
1768, and have been continued ſo ever ſince; and had uniformly
paid ceſs and all public burdens according to that valuation for
upwards of ninety years. Mr Erſkine produced with his claim a
certificate, by the proper officers, of the valuation of the land in
the ceſs books, containing, inter alia, “ Napier's part of Little
* Blackburn L. 2 Io : 11 : 4.” To this Mr Hope ſtated two objec-
tions, one of which was, that this article of valuation being certi-
fied, not from the books of the Commiſſioners of Supply (i. e. the
old vahuation-rolls), but from the books of the collector of the
ceſs, which are no evidence in a caſe like the prefent, the valua-
tion was not ſupported in a legal manner; more eſpecially as the
original valuation roll, and the books of the Commiſſioners of
Supply, were ſtill extant, and as the ceſs-books, from which the
certificate was taken, 'had been made up by the private authori-
ty of the colle&tor of the ceſs. The Freeholders having ſuſtain-
ed this objećtion, which reduced Mr Erſkine’s qualification be-
low L. 4co Scots, he complained to the Court, when it appeared
that in this county, as in ſome others, till in a very late period,
there had been few or no diviſions of cumulo valuations by a re-
gular decree of the Commiſſioners of Supply, proceeding on a
proof of the real rent, and engroſſed in their minutes; the com-
mon way having been, for the Commiſſioners, on a petition for
that purpoſe, to order the clerk, who had for almoſt a century
been the ſame perſon with the colle&tor, to make the diviſion
wanted, which he did by making an entry in the ceſs-books to
that purpoſe. This was the caſe even when a regular application.
was made ; and from the particular fituation of the books, it was
preſumable that the ſame would be done in caſes like the pre-
ſent, where the record of the order could not be found, but
where the uſe of payment made it ſufficiently clear that ſuch or-
der muſt have once exiſted. “The Lords found the . Freeholders
‘ had done wrong, and ordered Mr Erſkine to be added to
- & * the
FREEHOLDERS QUALIFICATION. .4I
* the roll*.” The ſame objećtion was ſtated at the ſame time,
to the qualification of Charles Grey, Eſq; and ſuſtained by the
Freeholders. The Court of Seſſion diſmiſſed his complaint, but
on a quite different ground, to be afterwards mentioned; for they
expreſsly repelled this obječtion to the enrolment, by their in-
terlocutor 24th Feb. 1799; as they alſo did, of the ſame date, in
the caſes of Dr Niſbet of Drumcroſs, and of Lawrence Dundas,
Eſq; from the ſame county.
THE deciſion of the Court in the caſe of Sir John Ogilvie from
Forfarſhire, already mentioned t, proceeded upon a fimilar
principle. Sir John's claim was laid partly upon the lands of
Baldovan, with the bank of Baldovan, which he therein ſtated as
having a valuation of L. 386 : 5: 8. In the valuation-book 1683,
there is this entry: ‘Baldovan, L. 550. After this there had
been a ſale of part of the lands; and in ſubſequent ceſs-books,
particularly from 1760 downwards, there is a ſeparate entry
in the names of Sir John and his authors, “ for Baldovan,
* L. 386: 5: 8, which it was contended could only apply to the
original article, minus the part ſold. No evidence of a regular
diviſion by the Commiſſioners was produced; but the entries in the
ceſs-books, joined to the progreſſive ſtate of the title-deeds, and a
ſeries of receipts (from 1786 to 1795) produced with the complaint,
ſhowing that the ceſs had been uniformly paid, conformably to
, the above valuation, L. 386: 5: 8, were pleaded as affording ſuffi-
cient preſumptive evidence, that there had been a diviſion: And
ſo, after a deliberate confideration, the Court found f.
THE juſt and natural mode of dividing valuations, originally
valued in cumulo, would certainly be to divide them according to
* 23d Feb. 1790, Hon. Henry Erſkine contra Hon. John Hope.
+ See p. 6.
i 2d March 1796, Sir John Ogilvie of Innerquharity contra Sir David Carnegie and
CŞtherS.
F i the
42 ELECTION CAS E.S.
the real rents of the lands at the time of the general valuation.
This, however, from the great lapſe of time, and the want of
evidence, would, in almoſt every caſe, be impracticable. The
Commiſſioners are therefore under the neceſſity of adopting a
different rule of diviſion; and the one generally followed is the
real rent of the lands at the time when a diviſion is ſought,
though the uſe of payment of the land-tax would perhaps, in
general, be a more proper rule, both as having the acquieſcence of
the parties, and as being probably the reſult of an old diviſion,
which of courſe would be a nearer approach to the proportions
of value at the time of the general valuation.
WHAT the Commiſſioners have to divide are ſuch articles only
as ſtand ſeparately rated, either in original and general valua-
tion of the county, or by ſubſequent decrees of diviſion. They
have no power whatever to re-unite; nor can an article once di-
vided or disjoined from a cumulo ever be again conſolidated there-
with, to the effect of a new diviſion of the whole as ſtill in cumulo :
For although ſuch ſeparate valuation, in conſequence of the lands
to which it relates being purchaſed by the owner of a different
eſtate in the ſame county, or perhaps in the ſame pariſh, may
have been made part of a cumulo in ſome new ceſs-roll; yet when
it comes again to be withdrawn from that cumulo, it muſt be re-
ſtored to its former ſtate, in whatever way the remaining part o
ſuch factitious cumulo may be divided. -
THIS propoſition it is the more neceſſary to lay down and en-
force, as little or nothing with regard to it is ſaid by Mr Wight,
and as the neglect of it by Commiſſioners of Supply, in different
counties, ſeems to have occaſioned nearly as many complaints
to the Court of Seſſion as all other election-queſtions put to-
gether. The doćtrine however is moſt completely eſtabliſhed,
by the deciſions of the Court; a few of which ſhall now be
ſtated.
Colon EL Lindſay, having obtained from Lord Blantyre a
freehold-qualification in the county of Haddington, preſented
to
FREEHOLDERS QUALIFICATION. 43
to the freeholders a claim for enrolment, referring, in proof
of his valuation, to a decree of diviſion of the Commiſſion-
ers of Supply; to which it was obječied, That they had thrown
different lands, lying in different pariſhes, into one cumulo, al-
although in the valuation-rolls the lands in each pariſh ſtood.
ſeparately valued. This was an error of the groſſeſt kind; and
the Freeholders having, on account of it, reječted Colonel Lind-
ſay's claim, the Court of Seſſion, upon a complaint, affirmed
their judgment”.
THE next caſe was from Roxburghſhire. Mr Robert Trotter was
enrolled a freeholder of that county in Očtober 1780, as liferent-
ſuperior of the lands of Deanfoot and others, parts of Sir Gilbert
Elliot's eſtate, and ſaid to ſtand ſeparately valued at L. 433. But
in a complaint preferred by Sir John Scott of Ancrum and Mr
Kerr of Abbotrule, it was obječted, That the Commiſſioners of
Supply had acted erroneouſly in making the diviſion appealed
to by Mr Trotter in proof of his valued rent. In ſupport
of this obječtion, reference was made to a copy of a valua-
tion of the county, bearing date 7th Jan. 1680, which is kept
in Exchequer as the rule for ſtriking compoſitions, and in which
the lands in the pariſh of Minto, belonging in property to Sir
Gilbert Elliot, ſtand rated as follows:
Minto Pariſh.
The lands of Minto tº =. tº J L. 2 Io9 13 4
Mr Gilbert Elliot of Craigend º ſº 66o o o
4. L. 27.08 I 3 4.
And it was therefore maintained, that the Commiſſioners ought to
have aſſumed theſe two ſeparate valuations as the baſis of their
proceedings, and to have divided L. 21 o'S : 13: 4 among the diffe-
ent ſubjećts of which the lands of Minto were compoſed, and L.665
among the other lands included under Craigend: But that, inſtead
of doing ſo, they threw the whole into one cumulo, and made their
diviſion according to the real rents. By this, the lands of Minto
came to draw only L. 1912 : 16: 7 of valuation, being leſs than
* 177 , Lindſay contra Freeholders of Haddingtonſhire.
F 2 the
44 *~ E L E C T I O N C AS E. S.
the amount of their old ſeparate valuation; and the other lands
were made to draw L. 855: 16: 9, being conſiderably more than
the amount of their former ſeparate valuation.
ON the other hand, it was maintained by Mr Trotter, That
the roll ſaid to be in Exchequer, upon which the obječtion was
founded, never was known in the county, nor was there ſo
much as a copy of it in the hands of the colle&tor, or clerk of
ſupply: That the oldeſt valuation-book belonging to the coun-
ty was made up in 1707, and formally ſubſcribed by five
Commiſſioners of Supply: That in this book Sir Gilbert Elliot's
eſtate, in the pariſh of Minto, ſtood thus valued under one ar-
ticle :
* Sir Gilbert Elliot of Minto, for the old pariſh, L. 2768 13 4.’
And that the ſame article was repeated in a ſubſequent valuation-
book, made up in 1742: That theſe two books were authenticat-
ed in the moſt formal manner, and had uniformely been made
the rule of levying the land-tax, and other public burdens ; and
that upon them alone, had been founded all the proceedings of
the Commiſſioners of Supply. Hence it was inferred, that the
whole lands having ſo long ſtood under one cumulo article, with-
out challenge or complaint, the commiſſioners did right in di-
viding that cumulo, according to the real rents. It was alſo ſaid,
that there was even an abſolute neceſſity for the Commiſſioners of
Supply to proceed as they did, by confidering the whole lands as
united in one cumulo, and making a new diviſion accordingly ;
and that it would have been impracticable to make a diviſion,
upon the footing of the old ſeparate valuations; as even the
boundaries of the lands, and the original contents of theſe dif-
ferent parcels, were now ſo confounded, that it would be a vain
attempt to diſtinguiſh them : For that although there were par-
ticular farms now called Craigend and Deanfoot, within the Ba-
rony of Minto ; yet whether they were the ſame in all reſpects,
without addition or diminution, it was impoſſible for any man
living to ſay, the marches being altered and blended together
by incloſing and improvements; and that therefore, it was alto-
Ar gether
FREEHOLDERS QUALIFICATION. 45
gether uncertain, what were the ſubjećts that were known by the
names of Craigend and Deanfoot in 1680. The Court” found
the Freeholders had done wrong in enrolling Mr Trotter; and
a reclaiming petition was refuſed, without anſwers, 1ſt February
1781.
Two other caſes came from Renfrewſhire on occaſion of the
general eleētion 1786. The firſt was that of Captain Cunning-
ham. By the original valuation of the lands in that county, made
up in 1654, and tranſmitted in 1709 to the Court of Exchequer,
the lands of Bootſton, part of the old eſtate of Craigends, were
ſeparately valued at L. 25 Scots. In the ceſs-roll made up in
1735, the eſtate of the family of Craigends is valued as follows:
* Craigends's lands of Craigends, Torr, Bootſton, and
* Clippens - tº- - cº L. 1538 6 8.
The eſtate was ſold in 1745 in three parcels, one of which, in-
cluding Bootſton, was purchaſed by Lady Craigends; and by
an act of the Commiſſioners of Supply, 17th May 1746, the above
cumulo valuation was divided, when the following was allocated
to Lady Craigends :
* The lands of Craigends, Craigends-mains, Nether Craigends,
* Auchins, Ryewraiths, Bootſton, and Clippens, purchaſed by
* Lady Craigends, valued to º º L. 445 o o'
On the 7th Auguſt 1781, the Commiſſioners again divided this
laſt ſubordinate cumulo as under:
W.
* 19th January 1781. Sir John Scott, &c. contra Trotter.—A ſimilar judgment was .
given, at the ſame time, in another complaint at the inſtance of the ſame perſons againſt
Šir John Stewart of Allanbank, who had alſo claimed upon the lands of Mr Elliot of
Craigend.
* Clippens
46 E L ECTION CAS E.S.
* Clippens - º - --> tº- 26 13 4
* The lands of Craigends sº gº * - 97 19 3
* The lands of Nether Craigends tº- tº º 121 17 3
* The lands of Ryewraiths, excluſive of Clippens 66 8 II
* The lands of Auchins |- gº º gº. 97 9 8
* And the lands of Bootſton tº º º - 34 II 7
L. 445 o o
THIS decree of diviſion having been founded on as evidence of
valuation in a claim for enrolment by Capt. Cunningham, it was
obječied, That in the diviſion, Bootſton ought only to have been
Ítated at L. 25, conform the original valuation, inſtead of L. 34
IIs. 7d. as a ſhare of L. 445 ; which, though appearing as a
cumulo in the ceſs-roll 1735, ought not, for the reaſon men-
tioned, to have been ſo ſtated: And as the effect of this was to
reduce the Captain's valuation below L. 4oo Scots, his claim was
rejected by the Freeholders, whoſe judgment, the Court of Seſſion
affirmed, on adviſing a petition and complaint, with anſwers,
replies, and duplies*.
THE other Renfrewſhire caſe aroſe from the following facts:
The lands of Corſeflatt and Corſeford, which originally belonged
to the Marquis of Clydeſdale, lay partly in the pariſh of Kilbar-
chan, and partly in the pariſh of Lochwinnoch ; and in a va-
luation-roll of the county, admitted to be authentic, they ſtood
valued as follows: sº *
* The Marquis of Clydeſdale's lands of Corſeflatt and Corſe-
* ford, in the pariſh of Kilbarchan, which are valued
at º sº- º tº- L. 4oo o o
* The Marquis of Clydeſdale's lands of Corſeflatt and
* Corſeford, in the pariſh of Lochwinnoch 352 3 4
L. 752 3 4
* 20th February 1787, Capt. William Cunningham contra Sir William Maxwell, Bart.
and Mr Speirs of Elderſlie.
IN
FREEHOLDERS QUALIFICATION. 47
/
IN a diviſion of this valuation, anno 1772, the Commiſſioners,
inſtead of dividing each ſeparate article into its component
parts, threw both together, and divided the whole according to
the real rents at the time ; the conſequence of which was, to
reduce the valuation of the lands in the pariſh of Kilbarchan
from L. 4oo to I. 185: Ios. and to encreaſe the total valuation
of the lands in the pariſh of Loch winnoch, from L. 352 : 3: 4
to L. 566: 13: 4. John Boyes, ſenior, writer in Hamilton,
claimed to be enrolled a freeholder, inter alia, upon the lands of
Corſeford, (being part of thoſe in the pariſh of Lochwinnoch)
which he ſtated, upon the authority of the decree of diviſion
1772, to be of the valuation of L. 9o: But, in reſpect of the im-
proper junction of the two ſeparate cumulos, as now mentioned,
the Freeholders refuſed to admit Mr Boyes to the roll ; and a
complaint againſt this judgment was diſmiſſed by the Court”.
THESE deciſions make it very clear, that no article of valua-
tion, either originally, or by diviſion, ſtanding apart from all
others, can ever be made to coaleſce with any other articles, ſo
as to render the ſum total a regular ſubječt of future diviſion;
but that, on the contrary, nothing can be the baſis of a regular
diviſion, but what has from the beginning, and all along, been
one individual article, or at leaſt has, in a competent manner,
been made ſuch. In every diviſion, therefore, the Commiſſion-
ers and others concerned, ſhould carefully examine the older
books of valuation, and trace downward the articles ſought to
be divided, however accurate and diſtinét the more recent ceſs-.
books may appear to be..
It has been already ſaid, that the reaſon why in every caſe
enrolment is incompetent upon a part of an undivided cumulo,
is, that there can be no evidence, in ſuch a caſe, of what portion
of it ought to be allocated upon the particular lands claimed on;
ſo that the matter is inexplicable. The ſame is often the caſe in
that ſpecies of erroneous diviſion which has juſt been mentioned;
and wherever it either remains uncertain, how a proper and re--
* 16th Feb. 1787, Boyes contra Freeholders of Renfrewſhire,
gular:
48 E L E C T I O N C A S E S.
gular diviſion, would operate in encreaſing or diminiſhing the
valuation claimed on, or appears to reduce it, eſpecially if below
L. 4oo Scots, as was the effect in moſt of the above caſes, the
claim will be reječted. But, on the other hand, if the claimant
can ſhow that the effect of a regular diviſion, would have been to
encreaſe his valuation, (or if diminiſhing it, he would ſtill have had
valuation to the legal extent) the qualification would probably be
ſuſtained as good. This appears to be well illuſtrated by the deci-
fions of the Court, in the caſes of Sir John Dalrymple and Sir Gil-
bert Elliot, from Roxburghſhire, where an objećtion was ſtated,
founded on the ſameerroneous procedure which had occurred in Mr
Trotter's caſe, but repelled by the Court, upon this ground, that
theſe two laſt qualifications were made upon the lands of Minto,
which were valued higher in the roll 1680 than was alloted to them
by the Commiſſioners in the erroneous diviſion. It was therefore
perfeótly clear, that if the valuation of the lands of Minto, and that
of the lands of Craigend, had each been ſeparately divided, Sir
Gilbert Elliot and Sir John Dalrymple would have ſhown that
they were truly poſſeſſed of more valuation than that which they
aſſumed when claiming to be enrolled. The objection made to
the diviſion, went therefore to ſtrengthen inſtead of weakening their
freehold-qualifications.
IN moſt of theſe caſes that have been mentioned, the claim-
ants ſtrongly pleaded long acquieſcence in the aſſumption of the
cumulo, even ſuppoſing it to have been at firſt erroneous; and it
was ſaid, that where ceſs and other public burdens had been
paid, for a period beyond that of preſcription, by a cumulo, it
ſhould mend all defeóts, and validate the diviſion. The Court,
however, were not ſatisfied with this reaſoning. There were no
termini habiles for preſcription; and ſo long as the articles remain-
ed together, and public burdens continued to be paid for the
whole by the ſame perſon, no one had any intereſt to objećt; ſo
that both freeholders and others who might have obječted, were
non valenter agere; a fituation which, in every caſe, interrupts pre-
ſcription, even ſuppoſing it otherwiſe applicable.
* 17th Jan. 1781, Sir John Scott, &c. contra Sir Gilbert Elliot.—Eodem die, Sir John
Scott, &c. contra Sir John Dalrymple.
IT
FREEHOLDERS QUALIFICATION. 49
It is a very different queſtion, How far the acquieſcence
of parties ſhall have the effect to homologate the diviſion of
ſuch an irregular cumulo 2 Such a diviſion is clearly open to
challenge, not only by thoſe immediately intereſted in it, as
being thereby regulated in the payment of their ceſs, but alſo
by every Freeholder of the county, who has a good intereſt
to obječt, in caſe a claim of enrolment is founded upon it.
If, therefore, in a caſe of this kind, the ceſs and other public bur-
dens be paid for any conſiderable length of time, in terms of the
diviſion, for the ſeveral portions of divided valuation, and much
more, if, in reſpect of it, one or more of the parties ſhall have been
received upon the roll of Freeholders without challenge, this
acquieſcence will wipe away every flaw in the diviſion, and ſe-
cure it effectually againſt all future queſtion.
A very ſtrong inſtance of this is given by Mr Wight #, where
acquieſcence, by payment of ceſs, was found to obviate a chal-
lenge of a diviſion on the head of error calculi, to the amount of no
leſs than L. 21 : 16 : 4, which, if ſuſtained, would have reduced
the qualification below L. 4oo. Two other inſtances ſhall be
given.
The firſt was that of Elphinſtone of Glack contra Douglas and
Milne, in 1768, in which the facts were theſe: The eſtate of
Auld-bar, in the county of Forfar, is ſituated in the pariſhes of
Aberlemno and Brechin ; and in the original valuation-books of
the county, it ſtands rated thus:
• Auld-bar, Brechin pariſh • ſº L. 933 6 8
* Auld-bar, Aberlemno pariſh Jºe tº 466 13 4
L. 14oo o o'
Robert Young, the proprietor of both totals, ſold to William
Chalmers the whole of his eſtate in the pariſh of Aberlemno, and
part of the lands in Brechin, lying on the ſouth fide of the Eſk,
* Page zon.
G reſerving
#
:
5o E L E C T I O N C A S E S.
reſerving what lay on the north fide. In the year 1754, the Com-
miſſioners, upon an application from the proprietors, inſtead of
dividing the ſeparate cumulos of the lands lying in the reſpective
pariſhes, threw the two cumulos together, and found ‘the valu-
‘ed rent of both the ſaid eſtates, as the ſame ſtand and pay ceſs
in the valuation-book of the ſhire, to be L. 14oo Scots ; and
the proportion thereof, effeiring to the ſaid lands and eſtate of
Auld-bar belonging to the ſaid William Chalmers, to be
L. 1030 : 6: 6 Scots; and the proportion effeiring to the ſaid
lands of Kintrochat, on the north ſide of the ſaid river, belong-
ing to the ſaid Robert Young, to be L. 369 : 14 : 6 Scots mo-
ney.” In the year 1766, Patrick Chalmers of Auld-bar convey-
ed part of his lands in Brechin pariſh, in liferent to Mr Elphin-
ſton, who referred to the decree of diviſion for ſhewing that his
lands were valued at L. 409 : Ios.; and was enrolled, in virtue
thereof, a Freeholder in the county of Angus. Of this enrolment
Douglas and Milne complained, and argued, That the diviſion
was null, as having conjoined the two cumulos in the different pa-
riſhes, which ought to have been kept ſeparate: That if the com-
mon rule had been followed, by keeping the cumulos diſtinét, the
part undivided would have been only L. 563: 13: 2, the ſum re-
maining of the total valuation of Mr Chalmer's eſtate, L. 1 ogo,
6s. 9d. after dedućting L. 466 : 13:4, the valuation of that part
of the old eſtate which lay in the pariſh of Aberlemno : And
that as Mr Elphinſtone ſtated his own valuation at no more than
L. 409 : 5: I I, it was clear from figures, that in that view of the
caſe, he had not the neceſſary qualification. The diviſion, how-
ever, which had been made without any political view, had, be-
fides, been acquieſced in by the different proprietors, paying ceſs,
&c. conform to it, for twelve years. Nevertheleſs the Court of
Seſſion ordered Mr Elphinſtone to be expunged; but their deci-
fion was reverſed upon appeal”.
&&&:&&
THE other caſe alluded to is that of Sir Alexander Campbell,
from Stirlingſhire, already mentioned f, where the commiſſion-
* 1768, Douglas and Milne contra Elphinſton of Glack.
# At page 3o. . &
eIS
FREEHOLDERS QUALIFICATION. S.E.
ers of ſupply had, in 1753, divided an article, which had been
previouſly divided, but which they ſtill aſſumed as a cumulo.
In this new diviſion, however, erroneous as it was, all parties.
acquieſced; Sir James Campbell, the proprietor, and ſeveral other
perſons, having been, in virtue of it, enrolled as Freeholders:
Nor was it ever objećted to until the general election in 1790,
when Sir Alexander, his ſon, claimed enrolment as apparent heir
of his father. The acquieſcence here was ſolely in the enrol-
ments that had taken place; for nothing could be inferred from
the payment of the ceſs, which Sir James Campbell and his truſ-
tees or tenants had continued to pay, for the whole lands of Gar-
gunnock. The Freeholders having ſuſtained this among other ob-
jećtions to Sir Alexander's enrolment, he complained to the Court
of Seſſion, who found, that the Freeholders were wrong in ſo
doing; and a reclaiming petition having been preſented upon
this point ſolely, it was refuſed without anſwers *.
THE reſcinded ačt, 4th Auguſt 1649. c. 21. entitled, ‘Aét and
* Commiſſion for a new Valuation, and which eſtabliſhed rules
for making out the valued rent of the lands in Scotland, directed
the Commiſſioners to inquire into and report, inter alia, the true
yearly worth and value “ of all feu or tack-duties, payable to
‘ any perſon (his Majeſty's duties excepted.) The reaſon of re-
quiring a report of the value of feu-duties payable to ſubječts-
ſuperior probably was, to aſcertain the different intereſts of the
ſuperior and ſub-vaſſal, as a rule for proportioning the public
taxes between them. But, in the caſe of lands holden of the
Crown, ſuch report was unneceſſary, as no part of the taxations, ,
payable to the King, could be laid upon the King's duties. .
THIS is admitted on all hands; but it does not ſeem to be
quite ſo clear, Whether, on account of the exemption of ſuch
duties, the lands liable in payment of them were to be retoured
at their full value, or with a dedućtion correſponding to the feu-
* 14th and 24th Dec. 1790, Sir Alexander Campbell contra Peter Spiers, Eſq. This .
deciſion was affirmed in the Houſe of Lords 5th March 1791.
G 2 duties. .
52 E L E CTION CAS E.S.
dutier. The former opinion appears to be the more probable.
The ſtatute 1681, requiring a valuation of L. 4oo Scots, makes
no mention of any deduction on account of feu-duties payable
out of the lands; and that this cannot have been left out per
incuriam is evident from this, that not only was the caſe of lands
holding feu of the Crown, under the immediate view of the le-
giſlature, (ſuch lands being expreſsly mentioned among thoſe
which ſhould entitle to vote); but that with regard to a quali-
fication founded on the old extent, it is expreſsly required, that
this ſhould be diſtinét from the feu-duties in lands held feu ;
ſo that had the intention of the legiſlature been the ſame with
reſpect to the other qualification founded upon the valued rent,
it muſt be ſuppoſed that that alſo would have been expreſſed.
THIs queſtion underwent a diſcuſſion, in a caſe from the
ſhire of Orkney, at the laſt general election. It aroſe from
the following circumſtances: In 1643, the family of Morton
obtained from King Charles I. a mortgage or wadſet of the Earl-
dom of Orkney, including the Crown's property-lands, and the
feu-duties payable by the vaſſals of the Crown; redeemable on
payment of L. 30,000 Sterling. The valuation of that county
took place in 1653; and the family of Morton being liable for a
proportion of the public burdens, a valuation was put upon the
feu-duties, granted by the Crown, in the ſame way as upon the
feu-duties payable to ſubječts ſuperiors in other parts of the king-
dom. The valuation of theſe feu-duties amounts to upwards of
L. 14,000 Scots, for which the Earl of Morton, and afterwards
Sir Laurence Dundas and Lord Dundas have uniformly paid
ceſs, from 1653 down to the preſent day; the landholders of
Orkney paying ceſs only according to their neat rents, after
deduction of the feu-duties.
MR Traill of Weſtneſs having been enrolled upon a qualifica-
tion which, in part, conſiſted of certain of theſe ſuperior- (or feu)
duties, a complaint was brought by ſome of the Freeholders, ob-
t jećting to that part of his valuation, upon this ground, That ſince
the ceſs was paid by the receiver of the duties, the payer could
Il Ot
FREEHOLDERS QUALIFICATION. 53
not claim a right to vote in reſpect of them; becauſe, quoad them,
he was not infeft in property “ liable in public burdens' as re-
quired by law. The obječtors founded upon the act of conven-
tion 1643, and act of parliament 1649, particularly the latter,
where the feu-duties payable to his Majeſty are excepted; from
which this inference was drawn, that “where lands held feu of the
* Crown before the general valuation, the feu-duties payable out
‘ of theſe lands, were not valued, at leaſt did not pay any ſup-
“ plies to the Crown; and the property of ſuch lands was valued,
* minus the feu-duties.” They alſo founded upon the deciſion,
Campbell contra Campbell *, finding that the receiver of duties
in a ſituation nearly ſimilar, had no right of voting; and they
contended, that in that caſe the payer had as little privilege.
* In ſhort, it was ſaid, ‘ feu-duties in that ſituation, although
* valued, give a right of voting to no perſon. Had they been
* payable to the Crown before the general valuation, they would
* not have been valued at all ; and the accident of their being
* valued, does not make any real difference upon the queſtion.’
They further pleaded, that ‘ where lands were feued by a ſub-
‘ jećt-ſuperior, unleſs the feu-duties were trifling, a part of the
* valuation was laid on theſe feu-duties, and a part on the ſub-
‘ vaſſal's rent, after dedućting the feu-duty : And that although,
* in the event of a forfeiture of the ſubjećt-ſuperior, and in the
‘ caſe of church-ſuperiorities, which were ſeized by the Crown
‘ upon the Reformation, the ſub-vaſſals came to hold immedi-
‘ ately of the Crown, for want of an intermediate ſuperior, they
* neither were liable in public burdens, nor could claim any
“ privilege, beyond their valuation.’
To this it was anſwered, That if it be true that lands holden
feu of the Crown were not in the common caſe in uſe to be va-
lued, and if the conſequence of that was to throw the whole of
the valuation upon the Crown-vaſſals, the valuation of thoſe in
Orkney, arifing from the temporary ſituation of the Crown-rents
in that county, could not affect the rights and privileges of the
* Referred to by Mr Wight, page 205.
- Crown-
54 E L E CTION CAS E. S.
Crown-vaſſals, or put them on a worſe footing than all the other
vaſſals holding their lands feu of the Crown in Scotland: That
the doćtrine laid down reſpecting ſubjećt-ſuperiors, appeared
very queſtionable, and had no ſupport from the aët 1681,
which declares, that thoſe infeft in lands of L. 4oo valued rent,
* whether kirk-lands now holden of the King, or, &c.’ ſhould
be entitled to vote: That even admitting the doćtrine, in caſes
where the vaſſals had all along held of ſubject-ſuperiors, it could
not apply in this, where the reſpondent and others in his ſitua-
tion in the county, had been all along immediate vaſſals of the
crown, as, upon the complainer's principle, neither ſhould their
condition be altered or made worſe by a temporary grant of the
duties payable out of their lands to a ſubjećt: That, abſtraćting
from the ſtatute, the objection was as little founded in the nature
and reaſon of the thing, the feus of the Crown’s property—lands
being granted without diminution of the rental; and in the caſe
of Orkney, the donators of the Crown being ſpecially reſtrićted
from feuing otherwiſe, the feu-duties ºnuſt have been at leaſt e-
qual to the rent at the time; conſequently, had a feu been
granted immediately before the valuation 1653, the feu-duty,
the real rent, and valued rent, would have been all the ſame.
In ſuch a caſe, according to the argument of the complainers,
though the valued rent of the lands had been ever ſo great, the
vaſſal of the Crown could not have voted; which appeared to be
contrary to conſtitutional principles, as well as to the terms of
the ſtatute 1681. Again, when, by the improvement of the lands
poſterior to the feu, the rent came to exceed the feu-duty, as was
generally the caſe in Orkney at the time of the valuation 1653,
ſtill the rent of the lands included the feu-duty, and conſequent-
ly the valued rent of the lands included the valued rent of the
feu-duty; and though it was proper to diſtinguiſh them in the
valuation, for the purpoſe of regulating the payment of the ceſs
between the Crown-vaſſal, and the donatar or wadſetter of the
feu-duties, ſtill it ſeemed clear, that the Crown-vaſſal was entitled
to vote on the total valuation of his lands, including the valua-
tion of his feu-duty. The clauſe in the ſtatute 1681, regarding
infeftment in L. 4oo land, did by no means intend that the
- - Free-
FREEHOLDERS QUALIFICATION. 55
Freeholder muſt ačtually pay the ceſs. The valued rent was
meant for regulating the payment of the ceſs; and what was ſaid
about it in the act, ſeemed only intended as a part of the deſcrip-
tion of the valued rent. Suppoſe the Crown-vaſſal ſub-feued his
whole lands, and took the ſub-vaſſal bound to pay the whole
ceſs, this would not affect the ſuperior's qualification ; he would,
nevertheleſs, be entitled to vote. It often happens, that one per-
ſon is Crown-vaſſal in the lands, and has the right of voting on
them, although the ceſs is, by uſage or pačtion, paid by an-
other, whether vaſſal or ſubtenant, or the Crown's aſſignee to the
feu-duties. Befides, in whatever way the payment of the ceſs may
be regulated by private agreement, or by cuſtom, ſtill the lands
are ultimately liable for the land-tax, in proportion to their full va-
lued rent. Suppoſe the donatar in arrear of the ceſs, and quar-
tering ordered, this compulſitory would be directed againſt the
vaſſal, who would be obliged to pay in the firſt inſtance, and "
ſeek relief from the donatar as he beſt might. If ſo, even ac-
cording to the ſtrićt letter of the ſtatute 1681, the Crown-vaſſal
would be entitled to vote, as truly ſtanding infeft in lands,
liable in public burdens for his Majeſty's ſupplies, for L, 4oo of
valued rent. Farther, though Lord Dundas pays the ceſs for
the feu-duties, yet he muſt be underſtood to pay it out of the
feu-duties themſelves; and the lands being liable for the feu-du-
ties, it follows, that they muſt be ultimately liable for the ceſs
comprehended in the feu-duties. The Court accordingly repel-
led the objećtion *. -
MR Wight, at page 202, lays it down, that “it is not neceſ.
“ ſary for one whoſe lands are valued in the books of ſupply at
* L. 4oo, to ſhow that he has an heritable right to the teinds
* of ſuch lands;’ and in ſupport of this doćtrine, he refers
to the caſe of Scott contra Sutherland, in 1753 f. In that
caſe, the lands claimed on were part of the lands of Hempriggs,
which were valued at a certain ſum, without diſtinguiſhing be-
* 23d Feb. 1791, Dundas and Laing, Freeholders of Orkney, contra Traill of Weſtneſs.
+ Reported in Fac. Coll, vol. 1. No 71, alſo in Lord Kames's Select Deciſions, No 44.
tWeen
36 E L E GTION CAS Es.
tween ſtock and teind, though it was clear the teind muſt
have been included, as the proprietor had it then under a
long leaſe. The claimant's valuation did not exceed L. 4oo;
and it was objećted, That a part of it muſt be confider-
ed as in reſpect of the teinds of the lands ; and that as
the claimant had no right to the teinds, they would fall to
be dedućted from his valuation, which would thus be redu-
ced to a ſum below L. 4oo. This objection was however re-
pelled, both by the Freeholders and by the Court of Seſſion. The
judgment of the Court ſeems to have reſted upon the words of
the ſtatute 1681, which, though it requires that the claimant be
infeft in lands to a certain amount, does not farther require that
they be free of the incumbrance of tythes, more than of any o-
ther incumbrance. -
A QUESTION ſomewhat analogous to this, occurred at the
time of the general election 1790. Upon that occaſion, Mr
Charles Edmonſtone claimed to be enrolled a Freeholder of Stir-
lingſhire, when this, amongſt other objections, was ſtated, ‘That
‘ in the valuation-book, the lands of Canglor ſtand valued
“ at L. 7 Io: 18s. Scots, and the teinds thereof at L. Ioo; and al- -
‘ though theſe two cumulos were thrown together, and divided,
‘ in 1707, among the different parcels compoſing the lands of
* Canglor, and which diviſion was approved of by the Commiſ-
“ſioners of Supply in 1786, upon the application of Sir Archi-
‘ bald Edmonſtone, and the different parcels of land now claim-
‘ ed on, do, with the teinds thereof, according to this decreet of
approbation, ſtand valued at L. 4 I of 13: 4. Scots; yet the ti-
tles produced by the claimant do not give him any right what-
ever to the teinds; and conſequently, it does not appear that he
* is poſſeſſed of the valuation required by law.” The Freehol-
ders having reječted Mr Edmonſtone's claim, he complained to
the Court of Seſſion ; and upon adviſing his complaint with an-
ſwers, replies, and duplies, the Lords repelled the objection *.
&6.
THE only material difference between this caſe and that of Su-
* 9th December 1790, Charles Edmonſtone, Eſq; contra William Morehead, Eſq.-
Eodem die Rev. Geo Edmontone, contra Morehead. Theſe judgments were affirm-
ed in the Houſe of Lords, 28th Feb. 1791.
- therland
FREEHOLDERS QUALIFICATION. 37
therland is, that in this the teinds had been originally valued ſepa-
rately from the ſtock; whereas in the other, the ſtock and teind had
been valued jointly, or without diſtinčtion. This ſpecialty was accor-
dingly very much inſiſted on by the obječtors to Mr Edmonſtone's
vote. But it was anſwered, That the diſtinétion ſaid to be in the
old valuation-books, prior to the diviſion 1707, between lands and
teinds, proceeded altogether on an erroneous idea : That the
aćts 1681, and 16 Geo. II. require, that Freeholders ſhall be in-
feft in lands, liable in public burden for his Majeſty's ſupplies
for L. 4oo of valued rent ; but that theſe acts do not require
that the ſtock ſhould be rated abſtraćtedly from the teind, or
that one valuation ſhould be put upon the ſtock, and another
upon the teind; it being ſufficient if the lands are ſo rated :
That teinds are, by law, only conſidered as a burden on the
lands, which does not leſſon the value more than an heritable
ſecurity impoſed upon them by the proprietor: That therefore,
though the teinds were exhauſted by miniſter's ſtipends, or other-
wiſe, or though the whole lands were in paſture, ſtill the heritor
would be liable to pay the whole ceſs, and be entitled to the
ſame privileges ariſing from the valuation, as formerly : That
there was no need, therefore, in the Öld valuation-books, to
diſtinguiſh between the lands and teind, becauſe the ceſs
was payable out of the lands, and remained payable out of
the lands, independent of the teind, and even though the teind
were exhauſted or loſt; in the ſame manner as a proprietor's
valuation continues the ſame, though he may have given
real ſecurities to the value of the land: That in this view,
the valuation, even prior to 1707, is to be confidered as laid
upon the lands; and the perſon having right to them, muſt be
confidered as poſſeſſed of that valuation: That the alledged diſ-
tinótion between the preſent caſe, and that of Sutherland, is with-
out any real difference, becauſe, in ſuch a joint valuation as that
of Hempriggs, a certain proportion muſt have been aſcribed to
the teinds, as much as if it had been ſet down in figures; for
it cannot be of the leaſt conſequence, whether the ſands of
A. including the tythes, be ſet down L. 4oo, or the lands of A.
L. 300, and the tythes of the lands of A. L. 100, making to-
gether L. 4oo. `-- * , - -
H - - THE
58 ELECTION CASEs.
The ſecond qualification reſpecting the title, is, “That the lands
* claimed on hold of the King or Prince;" with regard to which I
have not obſerved any thing occurring in practice ſince the pub-
lication of Mr Wight's laſt edition, to occaſion any obſervations
in addition to thoſe which he has made.
THE third qualification reſpecting the title is, “that the claim-
“ant be infeft in the lands.’
INFEFT MENT was firſt made a requiſite by the actºr 681; and it.
has ſince been made neceſſary to have that ſtep completed for a .
certain length of time before enrolment. By ſtatute 12 Queen
Anne, the ſafine muſt be taken and recorded one year before
the teſte of the writ of election, in order to entitle to vote; and by
16 Geo. II. cap. II. §. Io. ſafine muſt be recorded, or, if con-
firmation is the mode of inveſtiture, the charter muſt be expede, ,
one year before the enrolment. . -
TH is ſtatute means, by regiſtration, the aëtual booking of the
faſine, a verbatim inſertion of it in the record; but it is not al-
ways neceſſary that this be done a full year before the enrolment.
Beſides the principal book of record, the ſtatute 1693, c. 14.
naćts, “That all the keepers of the ſaids regiſters ſhall keep mi-
* nut-books of all writs preſented to them, to be regiſtrat in their
ſeveral regiſters, expreſſing the day and hour when, and the
names and deſignations of the perſons, by whom the ſaids writs
ſhall be preſented; and that the ſaid minut be immediatly
ſigned by the preſenter of the writ, and alſo by the keeper, and
patent to all the liedges who ſhall defire inſpection of it gratis :
And: that the writs ſhall be regiſtrat exactly, conform to the
order of the ſaid minute book.” It has accordingly been found,
on account of the general practice, that the marking, or entry of
a ſafine into ſuch a minut-book is the date from which the year
will be reckoned; and this even in a caſe where the entry was not
figned by the keeper; he being from home when the ſafines were
preſented at his office. See Wight, p. 221. & 222.
&f&&&
A. STILL farther relaxation from the ſtrićt enactment of law
* . - -- has
FREEHOLDERS QUALIFICATION. 59
has been allowed in a late caſe from the county of Caithneſs”.
Mr Sutherland was enrolled a Freeholder of that county at Mi-
chaelmas 1789, producing, as his title, inter alia, a Safine recorded
in the particular regiſter. It bore the uſual atteſtation by the
keeper; but although he thereby certified the ſafine to have been
preſented at Wick, and the regiſtration to have taken place on
the 29th September 1788, it was afterwards diſcovered that the
regiſtration had not been completed for ſeveral days after, nor
in ſuch time as to have been year and day prior to the enrol-
ment; and there could be no marking in a minute-book to ſupply
its place, no ſuch book having ever been kept in that county,
except for the ſhort period betwixt 1693 and 171 o. This diſco.
very gave riſe to a complaint againſt Mr Sutherland's enrolment,
which, however, on adviſing, the Court diſmiſſed. It ſeemed to
be admitted by the complainers, that the ſafine was, de facio, pre-
ſented on the 29th to the keeper of the record, who was acciden-
tally at Wick that day, but whoſe office for regiſtration was at
ſeveral miles diſtance. They contended, however, that ſince it
was not entered of that date, in any minute-book appointed by
law, nor recorded for days thereafter, there was no legal or pro-
per evidence of the date of its being recorded: And that the cir-
cuinſtance of no minute-book being kept for the county, could
have no effect to ſupport the regiſtration, as being conformable to
a common practice; the practice neceſſary for that purpoſe being
not local, but general practice, as in the caſe of M*Leod men-
tioned by Mr Wight, where alſo the practice had ſome ſupport
from the act of parliament, which this has not f.
THE Lords are ſaid to have been much divided upon this queſ.
tion, which was ultimately determined by a very narrow majo-
rity. The chief argument in favour of the reſpondent was,
That as the ſafine was, defačio, preſented to the keeper on the day
and date of the certificate, the preſenter had complied with the
pračtice of the county for near a century paſt, and had done all
in his power to render the regiſtration of his ſafine effectual ;
for which reaſon he ſhould not ſuffer on account of a delay not
* Ioth March 1790, Sir William Dunbar and others, contra Sutherland of Brabſter.
+ In this caſe, to obviate any objection to the competency of the complaint, a reduc-
tion was brought at the ſame time. It is ſaid, the caſe of M*Leod was determined upon
a ſummary complaint. -
H 2 im-
Öo E L E CT I O N CAS E. S.
imputable to him: And that here, as in M'Leod's caſe, the prin-
cipal ſafine remained with the keeper till actually recorded, which
afforded, to third parties, all the ſecurity intended by the original
inſtitution of the record itſelf; becauſe, ſo long as the ſafine it-
ſelf remained with that officer, he was as much enabled to give
fatisfactory information to inquirers, as he would be after inſer-
tion, both in a minute-book and in the record.
WHEREveR this ſource of information fails, as where the ſa-
fine is imperfeótly recorded, and given out in that ſtate, however
regular the atteſtation and the entry in the minute-book, the
judgment of the Court muſt be different from thoſe which have
been pronounced in queſtions relating merely to date ; becauſe, in
regard to the parts omitted, the ſafine is not recorded at all. This
ſeems to be quite clear from the following conſiderations: From
the time of giving back the principal ſafine, the record-book is the
only thing which an inquirer has it in his power to conſult; ſo
that if any of the lands, in which infeftment is ſaid to have been
given, are not there inſerted, ſuch infeftment muſt be equally un-
known to the public as if there had been no regiſtration at all.
Indeed ſuch a regiſtration, if held to be effectual, would rather
be worſe than none, as any perſon who peruſed the record, and
ſaw no mention of ſafine having been given, with reſpect to par-
ticular lands, would be entitled to ſuppoſe, or take it for granted,
that, with reſpect to theſe lands, there had been no infeftment.
The words of the ſtatute 16 George II. requiring regiſtration for
year and day, are expreſs againſt a ſafine ſo recorded ; and it
ſeems equally contrary to the ſpirit of that enaëtment, by which
it certainly was meant, that the nature of every freehold quali-
fication, or at leaſt the feudal right upon which it is founded,
ſhould be publiſhed to every perſon concerned, a full year be-
fore the claim for enrolment is to be taken up; and that time
and opportunity ſhould be allowed for inquiring into the vali-
dity thereof in every particular;-purpoſes which a partial or
imperfeót regiſtration can never anſwer. Ft is not the certificate
of the keeper of the regiſter that conſtitutes regiſtration, unleſs
the writ has been regiſtered agreeably to the certificate. That
regulation was, indeed, once attempted by ſtatute 1686. c. 19 ; but
being found, upon ten years experience, to be fraught with dan-
ger to the public, and ſubverfive of the records, it was repealed,
- and
FREEHOLDERS QUALIFICATION. 61
and the law upon this point ſettled on its preſent proper and ſe-
cure, footing by 1696. c. 18. **
THERE occurred lately, from the county of Linlithgow, a caſe,
from the pleadings in which moſt of theſe obſervations have been
taken, and in which the Court decided agreeably to what has
been juſt laid down. Mr Grey, one of the Knights of the
ſhire for the county of Northumberland, was infeft, inter alia,
in the lands of . Drumbowie on the 18th September 1788,
and his ſafine given in to be recorded by the keeper of the
particular regiſter at Edinburgh, who, on the 22d of that month, .
returned it with the uſual atteſtation. But, in tranſcribing it
into the record, the lands of Drumbowie, though ſpecified in
the precept of ſafine quoted in the inſtrument, were omitted in .
the clauſe where the Notary atteſts that delivery was given in
terms of the precept. This was not obſerved till 24th Sept. 1789,
and it was immediately communicated to Mr Grey's agent, who
thereupon required the keeper, under form of inſtrument, to in-
ſert the omitted lands by a marginal note, to be authenticated .
by his ſubſcription. This, however, the keeper did not think
himſelf warranted to do, although the record-book itſelf was not
ſigned. An objećtion, on this ground, to Mr Grey's title, proved
by an extract of the ſafine from the record, given out after the
error was diſcovered, and in conſequence of that diſcovery,
was ſuſtained by the Freeholders; and, on a complaint, the
Court were unanimouſly of opinion that the judgment of the
Freeholders was well founded : They therefore diſmiſſed the com- .
plaint, upon adviſing it with anſwers, replies and duplies, and
gave the ſtatutory penalty of L. 30, with coſts. The following
obſervations are ſaid to have fallen from the Bench : * Where it
‘ appears from the record, that a ſafine has been engroſſed of the
ſame date with the atteſtation on the back and the marking in
the minute-book, this could not be redargued by parole-teſti-
mony, without giving more credit to the keepers of the regiſter
than to the record itſelf. The caſe here was very different; the
claimant wiſhing to ſet up the preſumptive evidence, ariſing
from the indorſation of the ſafine, and the marking in the mi-
nute-book, againſt the record *.’
&6&&&&&
* Feb. 1790, Grey contra Hope. A reclaiming petition was preferred, and follow-
ed with anſwers; but on adviſing them, the Court adhered. .
A
61. ELECTION CAS Es.
A PETITION and complaint was at the ſame time preſented
againſt the keeper, praying, that he ſhould be ordained to amend
the record, and be ſubjected in damages, and a fine for the omiſſion.
The Court refuſed the firſt prayer of the complaint; but found
the keeper liable in damages, and fined him in L. 5 Sterling,
A cla IMANT muſt not only be poſſeſſed of this qualification of
infeftment, but muſt alſo inſtrućt the fact by proper evidence to
the Freeholders. The proof required by law is not merely the
produétion of an inſtrument of ſafine, though that by itſelf is com-
monly termed an infeftment. He muſt exhibit a complete feu-
dal inveſtiture, comprehending both the charter, or precept from
chancery, and the ſafine upon it : And in caſe infeftment is taken
by a perſon who is not the immediate grantee in the charter, but
who has right to it by progreſs, all the intermediate deeds of con-
veyance muſt be produced; otherwiſe the ſafine is not conform
to the charter; and the general rule being, that the conveyance
muſt be proved in every ſtep of its progreſs from the ſuperior,
with whom it originates, to the perſon in whoſe favour the ſa-
fine is ultimately taken.
A clai MANT has nothing more to do than to connect him-
ſelf with the Crown-charter by a continued chain of titles; ſo
that if no link be either wanting, or liable to any ex facie ob-
jećtion, the Freeholders cannot carry their inquiries farther, but
muſt enrol the claimant, however ſtrong objections, on other
grounds, may lie againſt his title. This doćtrine, which is founded
upon the higheſt expediency, is explicitly laid down by Mr
Wight, who, on pages 222. and 223. quotes certain deciſions of
the Court in 1777 to authoriſe it. A late caſe from Roxburgh-
ſhire was determined upon the ſame principle *. Mr Sibbald
had purchaſed, at a judicial ſale, lands which were there deſcrib-
ed as holding of the Crown. Having claimed on them at the
election-meeting 1790, it was obječted, That the lands held of
the family of Lothian, and that the Crown-charter had therefore
been improperly obtained. Two Freeholders preſent, Subſtitutes
of entail to the ſuperior, declared that they meant to bring a re-
* 18th December 1790, Sibbald contra Douglas and Kerr.
- dućtion
FREEHOLDERS QUALIFICATION. 63
dućtion of the charter upon that ground ; and one of theſe ſub-
ſtitutes, and another Freeholder likewiſe preſent, declared that it
conſiſted with their knowledge, that the lands had till very lately
been held of that family. A majority of Freeholders, upon this
evidence, reječted the claim ; but the Court of Seſſion, on advi-
fing a complaint, with anſwers, found they had done wrong, and
gave expences to Mr Sibbald, though the ſummons of reduction .
was raiſed and executed before adviſing the complaint.
THE titles of the claimant muſt, however, be ſubjećt to no ex .
facie objećtion, of informality or otherwiſe, all ſuch coming di-
reótly and immediately under the cogniſance of a court of Free-
holders; ſo that every nullity of that kind will be fatal to the
claim. This would be the caſe, if the inſtrument of ſafine was
not ſigned by the notary, or by one or both of the witneſſes, or
if, confiſting of more leaves than one, only ſigned upon the laſt
leaf; if the intermediate conveyance was written upon unſtamp-
ed paper, or defective in any ſtatutable ſolemnity; or laſtly, if
the charter, the ground-work of all, had not acquired the ulti-
mate requiſite of ſealing, however formal in all other reſpects. .
This laſt requiſite has been found indiſpenſable by the Court”. In ,
the caſe alluded to, the claimant, not being poſſeſſed of the princi-
pal charter, produced an extract of it from the record of Chancery,
with an inſtrument of ſafine, bearing that the attorney had produ–
ced as its warrant, “ quandam reſignationis cartam, ſub ſigillo per :
“ Unionis Tractatum cuſtodiend. et in Scotia, loco et vice Magni
* Sigilliejuſdem utend. Ordinat, praceptum ſafinae ſubinſertum in ,
* ſe continen. de data,’ &c. and the fafine contains as uſual a ver- .
batim copy of the precept. One obječtion to the claim was, That
an extract from the chancery-records, is an extract not of a char- .
ter, but only of a copy of one prepared for the affixing of the
Great Seal; and conſequently cannot prove that a complete char- .
ter ever exiſted. The Freeholders having refuſed to enrol the claim-
ant; he complained to the Court of Seſſion, and contended, that
this objećtion, ſuppoſing it otherwiſe good, was done away by
the clauſe of the inſtrument of ſafine above quoted, which
proved that a complete charter had been exhibited : But this in-
ſtrument being merely the aſſertion of the notary, which can
*-23d February 1790, Dr Niſbet of Drumcroſs contra Charles Hope, Eſq.
- IneVeg. . .
64 E L ECTION CASE S.
never prove any thing except the fact that ſafine was given, nor
indeed even that, unleſs ſupported by a proper warrant, the
Court diſmiſſed the complaint”. Indeed, it might juſt as well
have been attempted to ſupport an unſigned conveyance from
a ſubjećt, upon the ground of its being referred to in the ſafine;
as the ſeals are to royal grants, what ſubſcription is to grants by
by ſubječt-ſuperiors : And hence the year and day under the
ſtatute 16 Geo. II. with regard to a charter of confirmation, runs
from the date of the ſealing, which is thus held to be the date of
the charter.
THE juſtice of the deciſion laſt mentioned, if it needed any il-
luſtration, will be perfeótly apparent, if we attend to the progreſſive
ſteps in completing a Crown-charter, which being well known to
every practitioner, need not be here particularized. Thoſe who
are ſtrangers to the different ſteps will find them correótly detail-
ed in Hope's Minor Pračticks f, from p. 86. to p. 89, and in the
Colle&tion of Styles by the Juridical Society of Edinburgh, vol. 1.
from p. 259. to p. 262. It will be ſufficient to obſerve, on this point,
That, by act 1672. c. 7. all writings paſſing under the Great and
Privy Seals, muſt be regiſtered in the regiſters of the Great and
Privy Seals reſpectively, before the Seal be appended to them. An
extraćt therefore from Chancery, (which this ſtatute terms the
regiſter of the Great Seal) cannot be better or more complete
than the original, which certainly, when recorded, was no charter.
Caſes may eaſily be figured, and indeed frequently happen, where
parties ſtop ſhort after the charter comes written out from Chan-
cery, but before ſealing. Indeed it is ſaid, that where a political
Charter is paſſing, which comprehends lands lying in different
counties, where the Michaelmas or election meetings may fall
on the ſame day, practitioners get a duplicate ſealed for each
county i.
* Another objećtion occurred in this caſe, to be mentioned in the ſequel, ſee p. 7c.
+ Publiſhed in 1726, but compoſed many years before. The Author was Advocate
to King Charles I. A
t An incident that happened before the election 1774, ſhows, in a ſtrong point of view,
the credit that it was underſtood would be given to Chancery-extracts, in place of the
charter itſelf. Lady Elphinſton paſſed a charter in the view of making votes in the ſhires
of Stirling and Dumbarton; but took only one copy. The Michaelmas head-court fell
upon the ſame day in both counties; and the queſtion was, What was to be done in order
to be able to ſupport the claims in theſe different counties by produćtion of the charter 2
--- t IN
*
FREEHOLDERS QUALIFICATION. 65
*º
IN the caſe of Lord Alva, which occurred at the eleētion
1790, for Stirlingſhire, and which ſhall be aftewards more par-
ticularly mentioned, the ſame point occurred as in the caſe of
Dr Niſbet ; but it became unneceſſary to decide upon it. His
Lordſhip's charter was not loſt, but in the hands of a Freeholder
in the oppoſite intereſt, and who refuſed to deliver it up. His
Lordſhip, however, produced an extract of it from Chancery,
and a notorial copy of an entry in the books of the keeper of
the great ſeal, bearing the fees of it to have been paid ; alſo re-
ferred to the minutes of enrolment of a liferent-voter in 1766,
which bore production of that very charter; and even an extrađt
of his Lordſhip's ſafine, produced by his opponent in ſupport of
another objection, certified, that a charter, complete in all its
parts, was exhibited at taking the infeftment. This was as
ſtrong a caſe as could well be figured, as the verity of the ſafine
could hardly be queſtioned by him who had produced it in ſup-
port of an obječtion. Still, however, as law requires a charter
to be produced as a claimant's titles before the Freeholders, none
of theſe adminicles or extraneous proofs which have been men-
tioned, will ſupply its place, however deciſive they might, and,
certainly would be, in an action of proving the tenor”.
Application was made at Chancery to get duplicates, when the anſwer was, That they-
could give none ſo long after ſealing the charter, though the parties might have got as
many as they pleaſed at the time of ſealing. The conſequence was, that the proceedings
at Dumbarton were induſtriouſly ſpun out, till the charter was ſent by expreſs from the
meeting at Stirling. -
* There is one inconvenience reſulting from the doćtrine, that an extract of a char-
ter cannot ſupply the place of the original. In conſequence of the ſtatute 1672, there
can be no proper extract taken from the office of the Great Seal, where the ultimate ſtep
is taken, as it is not a proper place of record. The books are never given up by the
keepers or their repreſentatives to their ſucceſſors in office, nor tranſmitted to the gene-
ral Regiſter houſe, under the charge of the Lord Regiſter and his deputies, along with
the other public records of the kingdom, and the records of Chancery in particular;
from which extraćts are daily taken, figned by a principal Clerk of Seſſion. It muſt
often be very difficult therefore, to get at the books of the Great Seal, at leaſt if far
back. Indeed it is ſaid that no other books are kept by thoſe officers except a minute-
book, and copies of the charters as ſent by the writers to the fignet, along with the prin-
cipal charters for ſealing. In theſe circumſtances, there can be no remedy but that of
proving the tenor This evil ſeems to require a cure, by appointing a proper record at
the Great Seal-office, or otherwiſe.
I MR
*
66 E L E CTION CASEs.
MR Wight* mentions ſeveral caſes where it had been objećted
to the validity of ſafines, that they bore infeftment to have been
taken, in virtue of a common diſpenſing clauſe, upon one part
of the lands conveyed to the claimant (a diſponee, and the lands
diſcontiguous) for the whole; and where the obječtion had been
uniformly repelled in the laſt reſort. Later deciſions to the ſame
purpoſe have been pronounced. In the caſe of Mr Charles Edmon-
ſtone, already mentioned, it was ſeparately obječied, That the
ſafine was null, in reſpect that the diſpenſing clauſe in the
charter gave no authority for taking infeftment at the ma-
nor place of Kilſyth, quoad his lands; for that although it
bore, that a ſafine to be taken there, ſhould be ſufficient for the
whole lands and others mentioned in the charter, it contained
no declaration that ſuch ſafine ſhould be ſufficient for any parti-
cular part of theſe lands: And this obječtion having come before
the Court of Seſſion, was repelled; the ſafine bearing, “Eſt et erit
* ſufficiens faſina pro dićt, totis terris aliiſque inibi diſpoſit. cum
“ pertinen. et pro omni partem earundemif.” In this caſe, the objec-
tion was not laid upon the general inefficacy of a clauſe of diſpo-
fition to authoriſe an infeftment, taken as that of Mr Edmon-
ſtone, but upon the inſufficiency of the expreſſions uſed. It was
admitted, That had it been ſaid, that a ſafine taken in terms of
the diſpenſing clauſe, at the manor-place of Kilſyth, ſhould be
ſufficient, ‘pro dić, totis terris aliiſgue inibi diſpoſit. cum pertinen, vel
“quavis parte earundem, there would have been no room for ob-
jećtion: But it was contended, that the words ‘pro omni parte
‘ earundem, could not be underſtood to import the ſame thing with
pro quavis, or, aliqua parte earundem ; that, on the contrary, they
ſeemed to be merely exegetic, and to import the ſame thing with
the former words of the clauſe, pro dići. terris aliiſque. The very
ſame objećtion in another caſe, from the ſame county, met with
a ſimilar fatef.
* Pag. 224, *s, and 226.
t 9th Dec. 1790, Edmonſtone contra Morehead. This judgment was affirmed in the
Houſe of Lords. But in the appellant's caſe no notice is taken of this objection, though
it is mentioned in the reſpondent’s caſe.
f 1ſt March 1791, Cheape contra Morehead.
- IN
{
FREEHOLDERS QUALIFICATION. 67
IN the caſe of Mr ProÓtor, from Forfarſhire, already mention-
ed, it was ſeparately objected to the ſafine, which proceeded upon
a charter in favour of Lord Strathmore, and a conveyance by
commiſſioners for his Lordſhip to the claimant, That the com-
miſſion had not been produced by the attorney to the bailie, at
the ceremony of taking infeftment. But this objection was in
like manner repelled f.
A PRETTY fingular objection to a ſafine occurred lately in a
caſe from Forfarſhire. At Michaelmas 1795, Mr Robertſon-Scott
claimed to be enrolled on certain lands in that county, in right of
his wife, and produced as her titles, 1ſt, A charter of reſignation,
anno 1773, in favour of her younger ſiſter, whom failing, of Mrs
Scott ; 2d, Mrs Scott's retour as heir of proviſion; and 3d, ſafine
upon both, dated 28th Oétober 1789, and regiſtered at Edinburgh
I I th November following. It was objected, “ That this ſafine
* cannot be received by the Freeholders as evidence of an in-
* feftment in the lands; for that ſafine proceeded without a
“ proper warrant, in ſo far as it is ſaid to have been taken
* in virtue of the precept contained in the charter 1773:
* That the precept in that charter was exhauſted, long before
‘ that ſafine was taken, by a former ſaſine taken upon it on
“ the 5th June 1773, as appears by an extract of that ſafine pro-
* duced: And that this ſafine being taken, the precept in the
* Charter was at an end, and no notary was entitled to act a ſe-
* cond time upon it.’ Anſwered “ That the charter and ſafine
“ produced is, ex facie, a legal and regular inveſtiture of the large
‘ eſtate on which the claimant inſiſts to be enrolled; and that the
* Freeholders are not entitled to go into extraneous evidence for
“ the purpoſe of denying its legal effects.” The Freeholders re-
pelled the obječtion, which occaſioned a complaint to the Court
of Seſſion. . There Mr Robertſon-Scott produced the prior
ſafine, which he contended was null, (and therefore no bar
to a ſecond), becauſe, though confiſting of fourteen pages, it
was not figned by the Notary on the 2d, 4th, 6th, and 8th pages.
It was ſaid to have been owing to theſe omiſſions, which the
parties conſidered as fatal, that a ſecond ſafine was taken. The
prior ſafine was, however, ſigned by the notary on all the
+ 14th May 1796, Proctor contra Sir David Carnegie.
- ... ' K other
68 E L ECTION CAS E.S.
other pages, and on every page by the witneſſes; the docquet
ſpecified the number of pages; each of which was marked
in words, ſecond, third, &c.; each page was regularly carried
by a catch-word to the next ; and the ſaſine being all writ-
ten by one hand, interpolation was impoſſible. Beſides, (if
that were of any conſequence) the ſame perſon happened to
be both the notary to the ſafine, and the keeper of the regiſter
of ſaſines in which it was recorded ; in which laſt charac-
ter he ſigned every page, adding ‘Dept.': So that his name was
AT each page, though in four inſtances, the addition of ‘N. P.”
was a-wanting, the word “ Dept.’ being added. Two points,
therefore, came to be tried : Imo, If the Freeholders were compe-
tent to the objećtion; and 2do, If the omiſſions in the former ſa-
fine inferred a nullity, it being evident that if that ſafine was null
the latter behoved to be good, and vice verſa. On the firſt point
the claimant contended that as the obječtion did not appear ex
facie of the ſafine claimed on, but from extraneous evidence, viz.
the former ſafine, the Freeholders could not enter into it any
more than into the obječtion that the charter is not conformable to
the ſignature: And, with regard to the 2d objećtion, he referred
to the aët of federunt 17th January 1756, which, enforcing the
regulation of the aël 1696 c. 15. required every page of the ſafine
to be ſigned : But was anſwered, Imo, That as this objection was ſtat-
ed to the validity of the claimant's title, and inſtantly verified alſo
by his title, the Freeholders were competent to judge in it: And 2ao,
That the ſafine 1773 was clearly in terms of the act 1686, (the
only ſtatute regulating the ſolemnities of ſafines) each leaf being
figned by the notary and witneſſes: That the act of federunt pro-
ceeded on a miſtake, in ſuppoſing the ſtatute 1696 to apply to ſa-
fines, as it was only to ‘contraćts, decreets, diſpoſitions, extracts,
“tranſumpts, and other ſecurities,' which had been formerly in
uſe to have ſeparate ſheets paſted together, and ſigned on the
margin; a cuſtom which never extended to inſtruments of
ſafine: And that this being the caſe, the act of ſederunt could not
alter the eſtabliſhed law #. This accordingly was the opinion
of the Court; and upon adviſing the complaint with anſwers,
* There is a very correót ſtatement of the operation of theſe different enactments in Mr.
Frºkine’s Inſtitute, p. 432. § 16.
\
replies
FREEHOLDERS QUALIFICATION. 69
replies, and duplies, they found the Freeholders had done wrong,
and ordered the name of Mr Robertſon-Scott to be expunged
from the roll. They alſo gave the ſtatutory penalty #.
THERE are three ſituations in which the Election-laws do
not require a claimant to be himſelf infeft. Theſe are, huſbands
of heireſſes; tenants by the courteſy; and apparent heirs.
THE ſtatute 1681 gives the right of voting to huſbands for
“ the Freeholds of their wives, or having right to a liferent by
“ the courtefie.’ The right of huſbands to vote, “ by virtue of
“ their wives infeoffments' is expreſsly reſerved to them as former-
ly, by 12th Queen Anne; but by the laſt clauſe of that ſtatute it
is declared, ‘ that no huſbands ſhall vote at any enſuing elečtion
‘ by virtue of their wives infeoffments who are not heireſſes, or
* who have not right to the property of the lands on account
* whereof ſuch vote ſhall be claimed.’
WITH regard to the application of theſe ſtatutes, it is in the
firſt place clear, that all widowers liferenting, by the right of
courteſy, lands of the requiſite extent or valuation, are entitled
to vote. The courteſy, it is well known, takes place in thoſe
ſubječts only which have deſcended to the wife by ſucceſſion, not
in thoſe which ſhe had acquired by fingular titles ; and it has ac-
cordingly been found, that lands in this laſt ſituation afford no
qualification to vote. Such is the import of the deciſion in Orde's
caſe, quoted by Mr Wight, p. 239.
IT has, however, been doubted, whether the other ſpecies of
privilege granted to huſbands, (that of voting, during the mar-
riage, upon the property of their wives) is ſubjećt to a ſimilar li-
mitation, or if it extends to all the heritable property of the wife,
in whatever way acquired. Mr Wight, in the paſſage laſt refer-
red to, adopts the former as his opinion, and quotes in ſupport
of it the caſe of Orde in 1781. But upon looking into that de-
* 26th February 1796, James Lindſay Carnegy, Eſq; contra George Robertſon-Scott,
Eſq; & t
r K 2 "w. cificn,
7o E L E CTION CASE'S.
ciſion, it appears, that no ſuch queſtion was there agitated, the
point of diſcuſſion there relating, as already obſerved, only to the
circumſtances in which the right of courteſy had place. There
alſo appears little in either of the acts of Parliament to authoriſe
any ſuch limitation. The former act gives the right of ſuffrage
to huſbands, for the ‘freeholds’ of their wives, without farther
ſpecification; and the latter is clearly of an alternative nature,
requiring that the wife be either the heireſs or proprietrix of the
land claimed on by her huſband. Accordingly, in a late caſe,
where a father of four daughters, had diſponed his eſtate wholly
to the eldeſt (who, in courſe of ſucceſſion, could have taken on-
ly one-fourth pro indiviſ,) her huſband was afterwards enrolled,
in virtue of her infeftment, a Freeholder in Fifeſhire; and on ad-
viſing a complaint againſt that enrolment, the Court had ſo little
difficulty in the matter, as to affirm the judgment of the Freehol-
ders with coſts”. - •
A NoTHER queſtion has occurred upon this laſt enactment, Whe-
ther the word property is to be there underſtood as oppoſed to liferent,
or to ſuperiority ? This queſtion is propoſed by Mr Wight at page
239. and he inclines to the former opinion; ſo that according to
him, a huſband can vote upon a ſuperiority belonging to his
wife, as well as upon her property. He however ſtates no parti-
cular authority for that opinion ; and in a late caſe a different
one is ſaid to have fallen from the bench. The caſe alluded to is
that of Dr Niſbet already mentionedf, in which Mr Hope ſtated
as another objećtion, “That Mrs Niſbet was not an heireſ in all
“, the lands, and had not the property of that part which ſhe
‘ was ſaid to have acquired.’ He argued, That property is oppoſ-
ed to ſuperiority, not only by the ſtatute 1681 (requiring voters
to be publicly infeft in property or ſuperiority) but by the uni-
form language of all lawyers and ſtatute-books, at leaſt ever fince
the feudal ſyſtem was in its vigour, when, no doubt, by proper-
ty was meant dominium direčium : And that liferent has always
* 25th January i 786, General Skene contra Sandilands of Nuthill.
- + See p. 63. -
*... . been
FREEHOLDERS QU ALIFICATION, 71
been contradiſtinguiſhed, not from property, but from fee.
It was contended on the other fide, That as in all caſes the ſupe-
riority alone gives a right of voting, and as the act 1681 (which
is reſerved by that of Queen Anne) allows huſbands to vote for
the ‘freeholds’ of their wives, there is no neceſſity for any other
ſubject being veſted in the wife, than what would conſtitute a
freehold if it belonged to the huſband himſelf: And with regaid
to the laſt clauſe of Queen Anne's ſtatute, it was ſaid “ the
* meaning is perfeótly plain. It conſiſts of two branches. The
firſt properly relates to widowers, who are only entitled to vote
upon lands to which their wives ſucceeded as heireſſes. The
ſecond declares, That huſbands ſhall only vote where their
wives have the property of the freehold; which was properly
thrown in to prevent the creation of occaſional votes on the eve
of an election; as it was foreſeen, that without a limitation of .
this ſort, liferent or defeaſable eſtates would be given to wives .
in order to qualify their huſbands to vote.’
Ö&&
.
THE Court had no opportunity of giving a direct judgement
upon this point, having determined the cauſe upon a ſeparate
obječtion; but it is ſaid in the Faculty-report of the cate, that ſe-
veral Judges expreſſed an opinion that this objection alſo was
well founded f.
THE ačt 1681 gives the right of voting to ‘proper wodſetters,
* having lands of the holding, extent, or valuation foreſaid, but
to ‘no perſon infeft for relief, or payment of ſums ; the privilege
in ſuch caſes being with the “granters of the ſaids rights, their
‘ heirs or ſucceſſors.’ The act 1 2 Queen Anne, § 3. provides “that
no infeoffment taken upon any redeemable right whatſoever,
except proper wadſets, adjudications, or appriſings, allowed by
the act of parliament relating to elections in 1631, ſhall entitle
the perſon ſo infeft to vote, or be elected, at any election in
any ſhire or ſtewartry.” *
:
BETween theſe two ſtatutes difficulties have ariſen as to the
… + 23d February 1790. Niſbet contra Hope. .
legal
72 ELECTION CAS E.S.
legal diſtinguiſhing charaćter of ſuch proper wadſets as were
meant to be favoured with the privilege of voting. A proper
wadſet is indeed a ſpecies of ſecurity well known in the law of
Scotland, and in the 1681 (when money was ſcarce, and the mo-
dern artificial means of raiſing it by bank-credits, diſcounts,
&c. were unknown”) was in daily uſe not only for money ac-
tually lent, but in almoſt every kind of right meant to be ſecured
upon land. In particular, it is known to have been a common
form of ſecuring family-proviſions to younger children. It is thus
defined by Lord Stair (B. 2. tit, Io. § 9.) “A proper wadſet is where
“ the fruits and profit of the thing wadſet are ſimply given for the
* annualrent of the ſum, and the hazard or benefit thereof, whe-
“ ther it riſe or fall, is the wadſetter’s.’ And Mr Erſkine (B. 2. tit. 8.
§ 26.) ſays, “A proper wadſet is truly of the nature of a redeemable
right of property, and not barely of pledge; by which it is COVE
* nanted, that the uſe of the lands poſieſſed by the wadſetter
* ſhall, during the not redemption, go for the uſe or intereſt of
“ the money lent by him to the reverſer; ſo that the wadſetter
enjoys the rents without accounting, in ſatisfaction, or inſolutum,
‘ of his intereſt.’ And had no other ſpecies of wadſet appeared
than thoſe in uſe at the date of the ſtatute 1681, it had been very
eaſy to diſtinguiſh ſuch as conferred the right of voting. But in-
genious men, ſtimulated by that irreſiſtible eagerneſs which has
of late years prevailed to get a feat in parliament, have reared up
other rights under the form and title of wadſets, which it may
be fairly queſtioned if the legiſlature of 1681 had any intention of
allowing as a legal qualification. Thus it has been found that the
wadſet of a bare ſuperiority is ſufficient, even where the reverſer
retaiñed the caſualities of ſuperiority. The ſame has happened to
wadſets containing no clauſe of requiſition; and that it is not even
neceſſary that they be granted, or even bear to be granted, in
fecurity of debt f. This it muſt be allowed was an interpretation
* The Bank of Scotland was not eſtabliſhed earlier than 1695; nor the Royal Bank
tiil 1727. - - - -
+ Mr Wight, p. 241. ſays, a redeemable diſpoſition, without the intervention of a
loan, 1eal or aſſumed, gives no right to vote. But he expreſsly contradišts this on
p. 265. and 266. - ---
of
FREEHOLDERS QUALIEICATION. 73
*:
of the aët 1681 ſufficiently liberal; but the progreſs of vote-mak-
ing has gone ſtill farther, and has even preſented us with the
wadſet of a naked fee, where the ſubject was already completely
covered by an abſolute and irredeemable liferent in favour of
another.
THE firſt inſtance of this kind of vote (which Mr Wight takes
no notice of) appeared in the caſe of Sir James Colquhoun con-
tra Hamilton, 1ſt July 1773. In that caſe, Edmonſtone of Dun-
treath diſponed certain lands to his brother in liferent, for his
Iiferent uſe only, and to James Hamilton younger of Hutche-
ſon, and the heirs-male of his body in fee, (whom failing,
to return to the granter) redeemable quoad the fee, upon pay-
ment or conſignation of ten merks by the diſponer. Upon this
title both liferenter and fiar were enrolled ; but in a com-º.
plaint it was objected againſt the inrolment of the latter, Imo,
That his title is not a proper wadſet, admitted as a qualification
by the ads 1661 and 1681, (indeed the word wadſet does not oc-
cur in it) but a diſpoſition of the property under a perpetual power
of redemption, and, as ſuch, rejećted by the aët of Queen Anne :
2.dly, That, admitting it to be a proper wadſet, in point of form,
it cannot give a title of enrolment: That it is the very eſſence of
a proper wadſet to give the wadſetter the benefit, and the hazard,
of the profits of the ſubječt, in return for the intereſt of the
wadſet-ſum ; whereas this is in fact a pačium leoninum, a wadſet
of nothing at all, being totally excluded by the liferent of a
third perſon; a liferent too, not of the wadſet-right (the ſubječt
of the fee, and conſequently that ſpecies of liferent which is al- .
lowed by the ſtatute 1681) but of the lands themſelves, previous
to, and when unincumbered by, any wadſet; and a liferent which
would ſubſiſt equally after as before redemption of the fee: That
every Freeholder muſt be in poſſeſſion, at leaſt civil poſſeſſion;
and that although, in the common caſe, law conſiders the poſ-
ſeſſion of the liferenter to be, as to this queſtion, that of the fiar
(upon whoſe right the liferent is only reckoned a burden, on ex-
tinétion of which the right of the fiar becomes unlimited ;) ſuch
fićtion can have no application where, as in this caſe, the perſon
excluded ‘is not fiar, but a creditor; where the liferenter is not
the fiar's liferenter (ſo to ſpeak) but poſſeſſes proprio jure, and
totally.
74. E L E C T I O N C AS E. S.
totally excludes, during his life, the nominal fiar ; and where it
is, beſides, totally dependent upon the will of another, whe-
ther the fiar ſhall even poſſeſs any thing after the liferent is ex-
tinguiſhed: And that however competent it may be for parties,
as between themſelves, to enter, ſcientes et prudenter, into a bargain
ſuch as this ; they cannot in this way affect the rights of others,
by rearing up a ſpecies of qualification not recognized by law.
To the firſt objećtion it was anſwered, That the title here, though
in form and appearance a diſpoſition, and ſale under reverſion,
had yet all the chara&ters of a proper wadſet, as defined by Craig
and Stair; the grantee being, like the proper wadſetter, feudally
veſted with the full property, entitled to enjoy the fruits of it
unaccountable, and ſubject to a right of reverſion in the granter:
That in truth there appears no material difference between a re-
deemable diſpoſition and a proper wadſet ; and in the form of
a contraćt of proper wadſet given in Dallas's Stiles, written when
that ſpecies of ſecurity was in daily uſe, the word wadſet is not
uſed, but ‘ ſells, annailzies, and diſpones, as in this caſe :
That the redeemable rights excluded by 1681, and 12 Anne, are
ſuch as are either held in truſt, or where the perſon infeft does
not enjoy the rents without accounting, but only as a ſecurity
for payment or relief of ſums; as improper wadſets, annualrent-
rights, or adjudications within the legal, &c. in which the
property does not, as in a proper wadſet, paſs to the grantee,
and where there muſt always be an accounting, hinc inde. '
With regard to the ſecond objećtion, it was anſwered, That the
aćt 1681 gives the fiar a power of voting when not claimed by
the liferenter, without any diſtinétion whether the right be ab-
ſolute or redeemable: That whatever are the other diſtinguiſhing
characters of a proper wadſet, it is none of them that the fiar
ſhould poſſeſs the lands himſelf, or that he ſhould even have the
profits of them from the date of advancing his money: And that
there is no more incongruity in ſaying that he poſſeſſes by, or in the
perſon of, the liferenter, than in ſaying the ſame of an abſolute fiar,
both the one and the other being totally excluded while the liferent
ſubſiſts, and becauſe in both caſes the liferenter ſo far poſſeſſes pro-
prio jure, that his right when conſtituted does not depend upon
the
FREEHOLDERS QUALIFICATION. 75
the will of the fiar. The Court, however, found the fiar not
entitled to be enrolled, and granted warrant to expunge him”.
Wallace's Deciſions, p. 194.
To this very extraordinary caſe there occurs amongſt the de-
cifions no parallel except that of Mr Blair of Blair, decided
upon the 10th March 1789. The Duke of Gordon convey-
ed certain lands to Æneas Macintoſh, Eſq; in liferent, prior
to 1786. On the 26th September that year his Grace en-
tered into a contračt of wadſet with Mr Blair; whereby ‘in
* conſideration of the ſum of L. 5o Sterling, advanced and
* paid to me by William Blair, Eſq; of Blair, whereof I
* hereby grant the receipt, and diſcharge the ſame, his Grace
conveys the lands “to and in favour of the ſaid William Blair,
* Eſq; and his heirs and aſſignees whatſoever, in fee, but with
* and under the reſervation and burden of the liferent right ſub-
* ſiſting in the perſon of Æneas Mackintoſh of Mackintoſh, and
* alſo under reverſion in manner after mentioned ;’ redeemable
by the granter and his heirs, upon payment ‘of L. 50 Sterling
* money, at the firſt term of Whitſunday after the lapſe of two
* years from the death of the ſaid Æneas Mackintoſh, or at any
* other term of Whitſunday thereafter.” Upon this conveyance
infeftment followed; and in virtue of theſe titles Mr Blair was
enrolled, at Michaelmas 1788, a freeholder in Aberdeenſhire. In
a complaint at the inſtance of Sir William Forbes, and other free-
holders, it was objećted, 1ſt, ‘That a wadſet of a fee is in itſelf
* a contradićtion in terms, and is a right of ſo anomalous a na-
* ture, that it cannot ſubſiſt; and, 2dly, That, at any rate, the
‘ wadſet of a fee is not ſuch a right as by law is declared to give
\
* In one of the papers in the caſe of Colquhoun contra Urquhart (ſee infra) it is ſaid,
that by their firſt judgment the Court approved of the enrolment, and diſmiſſed the com-
plaint : “But as upon a more thorough inſpection taken of the right itſelf, it appeared to
* be of a very different nature from what was ſuppoſed, and that inſtead of being a proper
* wadſet, of which it had not one charaćteriſtic, it was a precarious right of fee,
* redeemable upon payment of lo merks, quoad the fee, though irredeemable quoad the
* liferent.” A reclaiming petition being thereupon preferred, ſtating the caſe in that
light, their Lordſhips had no difficulty in “altering the former interlocutor, ſuſtaining
“ the objećtion quoad Mr Hamilton the fiar, and ordaining him to be expunged.” There is
nothing to this purpoſe in Wallace's Report. g
L - * Onc
76 E L E CT I O N C A S E S.
‘ one a title to ſtand upon the roll of freeholders.” The very
ſame arguments were ſtated in ſupport of theſe objećtions as
in Hamilton's caſe; and the Court, on adviſing the debate,
found in theſe words : * That the reſpondent's wadſet of
* the fee of a ſuperiority, upon which a prior liferent ſubſiſts, is
* not a legal title of enrolment; and therefore ſuſtain the objec-
‘tions to the reſpondent's qualification, and grant warrant,’ &c.
Againſt this judgment Mr Blair reclaimed ; but his petition was
firſt ſuperſeded for four weeks, and it is ſaid that on account of
certain circumſtances, it never became neceſſary to adviſe it.
The only ſpecialty in this caſe, to diſtinguiſh it from that of Mr
Hamilton, was the ſubſiſtence of the wadſet for two years after
the liferenter's death; and this was accordingly pleaded by Mr
Blair's counſel ; But it ſeems quite clear, from the terms of the
interlocutor, that the Court went upon general grounds #.
It will be noticed, that in both of theſe caſes, it was the
fee only that was wadſet ; ſo that there was no opportunity of de-
ciding the abſtraćt general queſtion, Whether a wadſet can in
any caſe be granted to one in liferent, and another in fee, ſo as to
give the fiar a right of voting *. In Mr Blair's caſe, the complain-
ers are at great pains to diſtinguiſh between the fee of a wadſet,
(where both liferent and fee are wadſet) and the wadſet of a fee,
where the liferent is abſolute. But if we attend to the argu-
ments in theſe two caſes, we ſhall find moſt of them to apply with
equal force againſt both ſpecies of wadſet-fee. Such are all the
arguments drawn from the proper nature of wadſets; and it.
would rather appear from the interlocutor in Mr Blair's caſe, that
ſuch was the opinion of the Court.
THERE is indeed one deciſion ſuſtaining ſuch a qualification ; .
but the caſe does not ſeem to have been free of ſpecialties. Sir
Ludovick Grant of Grant executed a proper, wadſet of the ba-
rony of Culbin to Sir James Colquhoun of Luſs, in liferent, and
to his ſon Mr James. Colquhoun, in fee, heritably, but under re-
* N. B. Certain queſtions were propoſed to Mr Blair, being the ſame which occurred.
in the caſe of Sir John Macpherſon, to be afterwards mentioned; but there was no oc-
caſion to decide upon them in this caſe, as the vote was otherwiſe faulty.
verſion
FREEHOLDERS QUALIFICATION. 77
verſion as therein ſpecified : Upon this, Sir James, having com-
pleted his titles, was enrolled. On the 3d July 1773, he execut-
ed a renunciation of certain parts of the barony, valued at up-
wards of L. 4oo Scots, in favour of Mr Colquhoun, who thereupon
claimed enrolment at the next Michaelmas meeting. It was ob-
jećted, That however he might have been enrolled, ſo as to vote
in abſence of the liferenter, his abſolute enrolment, independent of
the liferenter, was premature, till a year ſhould elapſe from the
time the renunciation was recorded. It was anſwered, “From
“ the titles produced it appears that the claimant was infeft, as
fiar of the lands upon which he claims, ſo far back as the
year 1757; ſo that the objećtion is void of all foundation. The
claimant's title of enrolment being clear and unexceptionable,
independent of the renunciation mentioned in the objećtion,
the collateral right of the liferenter might be renounced at any
time.” The Freeholders having reječted the claim, Mr Col-
quhoun complained to the Court. He had, by his father's re-
nunciation, obtained the full wadſet-right when regularly claim-
ed upon ; and as the queſtion, Whether regiſtration for year and
day was neceſſary depended upon this other queſtion, Whether
he was entitled to be enrolled, ab ante, as fiar the general
point came to be diſcuſſed pretty much as in Mr Hamilton's
caſe, which was referred to. Mr Wallace, who reports this caſe,
ſays, “The Lords (the queſtion being put to enrol ſimply, or
* qualificate) ordered the complainer to be enrolled ſimply *.’
THE Freeholders entered an appeal, which, however, was af.
terwards allowed to be withdrawn, with L. 20 coſts, upon a
petition, ſtating, “That the obječtion taken to the title of the
* reſpondent in this cauſe, to ſtand on the roll of freeholders
‘ for the county of Elgin, though well founded, as the peti-
‘tioners humbly apprehend; yet, being a temporary objećtion,
* removable by a ſhort lapſe of time, the petitioners, are adviſed
* to ſubmit to the judgment of the Court below; and therefore
“ praying their Lordſhips, that they may be at liberty to with-
* draw the ſaid appeal.”
* Wallace, 23d Feb. 1774, Colquhoun contra Urquhart. *
L 2 * ON
78 E L E CT I O N C A SE. S.
On the ſubjećt of wadſets, it is only farther neceſſary to ſay
a ſingle word as to their mode of extinétion, ſo far as may be
neceſſary to re-inveſt the reverſer with his former privilege of vo-
ting. In Wadſets that are holden baſe of the reverſer, a refig-
nation ad remanentiam, in favour of the reverſer, operates a com-
plete extinction of the right; but as wadſets ſo holden can never
give a title to vote, the queſtion can only be as to thoſe which
are granted to be holden of the reverſer's ſuperior. In that ſi-
tuation, it is laid down by Mr Erſkine, that the reverſer is by the
wadſetter's ſafine denuded of all intereſt, at leaſt all feudal in-
tereſt, in the lands, nothing remaining with him but the power
of redemption. In order, therefore, to regain his feudal rights
and privileges in the lands, (and, inter alia, his right of voting)
it is neceſſary that he acquire a new inveſtiture from the ſupe-
rior by charter and ſafine. Mr Wight, p. 245, and 246, in
clines to this opinion, though he lays it down with a good deal
of caution. It is, however, quite well underſtood in prac-
tice, that in every caſe a new inveſtiture is requiſite, and that a
fimple renunciation by the wadſetter (tho' ſufficient to annihilate
his own right of voting) cannot have the effect to reſtore that of
the reverſer. This ſeems, in particular, to have been held for
law in a very late caſet, where one of the articles claimed on
had been for ſome time held in wadſet, but afterwards renounced,
and which yet was not taken into computation; but the claimant
(the reverſer) obliged to go to proof on another parcel, in order
to make up his qualification.
IT has been obſerved, that apparent heirs are entitled to be
enrolled and to vote, without the ordinary requiſite of infeft-
ment. They muft, however, for this purpoſe, produce to the
Freeholders ſuch titles in the perſon of the anceſtor as would
have authoriſed his enrolment. This is laid down by Mr Wight
at p. 249, and it is confirmed and illuſtrated by a recent deci-
fion of the Court of Seſſion. James Hamilton was enrolled a
t 2d February 1796, Sir Archibald Dunbar of Northfield contra James Brodie, Eſq;
ef Brodie.
*Freeholder
FREEHOLDERS QUALIFICATION. 79
Freeholder in the county of Renfrew, in the charaćter of heir-ap-
parent to his father, upon production of the following titles: Imo,
A diſpoſition in favour of his father, , of lands affording a free-
hold qualification; 2do, An inſtrument of ſafine, proceeding on
the precept contained in the diſpoſition ; 3tio, A charter of con-
firmation, of the diſpoſition and ſafine, obtained by the clai-
mant after his father's death. In a petition and complaint a-
gainſt this enrolment, it was pleaded by the objectors, That an
apparent heir was only entitled to be enrolled where his prede-
ceſſor could have claimed that privilege : That the claimant's fa-
ther having only a baſe infeftment, was not qualified: And that
the charter of confirmation, obtained after his death, could not
be conſidered as part of his titles. But to this it was held ſufficient
to anſwer, That it was of the nature of a charter of confirma-
tion to operate retro, and to give the baſe infeftment con-
firmed, the ſame force and effect as if it had been confirmed
at its date, unleſs ſome mid impediment intervened between
the date of the ſafine and that of the charter : That the death
of the party infeft could not be conſidered as a mid impediment,
nothing being in law eſteemed as ſuch except an inconſiſtent
right perfeóted prior to the confirmation : And that therefore
the claimant’s father muſt be confidered as having ſtood public-
ly infeft at his death, which is preciſely the fituation in which
the titles of an anceſtor are allowed by law to authoriſe the en-
rolment of his apparent-heir”.
If the heir-apparent produces proper titles, he needs not far--
ther ſhow that the anceſtor ſtood upon the roll ; and, on the o-
ther hand, ſuppoſing the anceſtor had been enrolled, if any de-
feót in the titles can be diſcovered which had not been formerly
complained of within the ſtatutory period, that will be a ſuffi-
cient bar to the enrolment of the apparent heir. The Freehol-
ders are therefore entitled, and called upon, to examine and
ſcrutinize the titles of an apparent heir, equally as thoſe of any
other claimant; for which reaſon they ought to have, in both
caſes, the ſame means of previous information; and hence, al-
* 19th january 1793, M*Dowall and Houlon contra Hamilton. --
though
78 E L E CTION CASES. '
though a claim of an apparent-heir may not perhaps fall
under the expreſs words of the ſtatute, requiring claims to
be lodged two months prior to enrolment at a Michael-
mas meeting, it has been found by the Court to be indiſ.
penſable in this, as in all other caſes. Mr Wight, at p. 251,
mentions an indirect deciſion to this purpoſe, refuſing enrolment
to an apparent heir, becauſe the claim was defective; and more
lately a direét judgement upon the queſtion has been given”.
MR Wight, at p. 252, lays it down as neceſſary in creating a
freehold qualification, that the claimant be able to ſhow that he
has a proper feudal vaſſal in the lands, and that this cannot be
done by a conveyance of the ſuperiority with a reſervation of
the property. He mentions a proper method of ſeparating the
property and ſuperiority, and it is the mode which has almoſt
uniformly been adopted in practice. It appears from the Facult
Report of one of the Renfrewſhire caſest, that an obječtion had
been there ſtated upon the Bench to this mode of proceeding, in
theſpecial caſe where the granter of the votes (liferent-ſuperiorities)
ſtood in the fee of the ſuperiority, as well as in the property of the
lands, which was ſaid to be contrary to feudal principles, as uniting
in one perſon the ſeparate charaćters of ſuperior and vaſſal. It is,
however, underſtood to be fixed by law, that this circumſtance
does by no means extinguiſh and conſolidate the two rights of
property and ſuperiority, as a reſignation ad perpetuam remanen-
tiam is always reckoned neceſſary for that purpoſe; witneſs the
deciſion of the Court of Seſſion, as well as that of the laſt reſort,
in the noted caſe of Drummakilnſ. Accordingly in this caſe the
objection was held by a majority of the Judges not to be well
founded. It was alſo ſaid, that “ The previous ſeparation of the
‘ property and ſuperiority, in the conſtitution of freehold-quali-
‘ fications, was only conſequentially neceſſary, that the voter might
‘ be able to ſwear, that he was in poſſeſſion of all the right that
* 25th January 1783, John Mackenzie contra Donald Munro.—A caſe from the coun-
ty of Roſs.
y
+ 20th February 1787, William Macdowal contra Geo. Buchanan.
it 8th March 1786, Bald contra Buchanan.
‘ his
FREEHOLDERS QUALIFICATION, 8:
‘ his titles imported, which he could not do if, after being fully
veſted both in the property and ſuperiority of the lands, he had
* reconveyed the former to the perſon from whom he had ob-
* tained it.’
G
THE /a/. qualification in point of title, is, “ That the claimant
‘ be in poſſeſſion of the lands.’ --
IN order to aſcertain this fact an oath was introduced by ſtatute
12 of Q. Anne c. 6. which oath was afterwards ſuperſeded, and
another ſubſtituted in its ſtead by 7 George II. cap. 16. This laſt
is commonly called the oath of truſt and poſſeſſion, and has con-
tinued in uſe down to the preſent day. It is in the following,
words:
* I A. B. do, in the preſence of God, declare and ſwear, that “
the lands and eſtate of for which I claim a
right to vote in the election of a member to ſerve in parliament
for this county or ſtewartry, is actually in my poſſeſſion, and
do really and truly belong to me, and is my own proper eſtate,
and is not conveyed to me in truſt, or for or in behalf of any
other perſon whatſoever; and that neither I, nor any perſon to
my knowledge, in my name, or on my account, or by my al-
lowance, hath given, or intends to give, any promiſe, obliga-
tion, bond, back-bond, or other ſecurity whatſoever, other than
appears from the tenor and contents of the title upon which
I now claim a right to vote, directly or indireétly, for re-diſ-
poning or re-conveying the ſaid lands and eſtate in any man-
ner of way whatſoever, or for making the rents or profits there--
of forthcoming to the uſe or benefit of the perſon from whom .
I have acquired the ſaid eſtate, or any other perſon whatſoever ;
and that my title to the ſaid lands and eſtate is not nominal
or fićtitious, created or reſerved in me, in order to enable
me to vote for a member to ſerve in parliament, but that the
ſame is a true and real eſtate in me, for my own uſe and be-
nefit, and for the uſe of no other perſon whatſoever; and
that this is the truth, as I ſhall anſwer to God.' '
6&&6&&&&&6.C&&6.6&&G©6&
THERE
82 E L E CTI O N C A S E S.
THERE is ſome ambiguity in this laſt ſtatute, with reſpect to
the time at which the oath thereby impoſed, can be competently
tendered. When ſpeaking expreſsly of that oath, the aët $ 2, ſays
it muſt be taken (on the requiſition of ‘ any Freeholder for-
* merly enrolled’), “by every Freeholder who ſhall claim to vote at
‘ any eleētion of a member to ſerve in Parliament, for any lands
“ or eſtate in any county or ſtewartry in Scotland, or who
* ſhall have right to vote in adjuſting the rolls of freeholders,
* &c. before he proceed to vote in the choice of a mem-
* ber, or on adjuſting the rolls*.” In another place, § Io, the
aćt appoints, “ That every Freeholder in Scotland ſhall, before
* he be either enrolled, or admitted to vote at any future elec-
tion, or meeting for enrolment, in any queſtion for the choice
of a clerk or preſes, or other queſtion whatſoever, (if required
by any Freeholder preſent) be obliged to take and ſubſcribe the
oaths appointed by law to be taken by electors of members to
* ſerve in Parliament, when required ſo to do.’ It has, how-
ever, been found, both by the Court of Seſſion and the Houſe of
Peers, after a full inveſtigation of the practice, that the former
of theſe clauſes alone regards the truſt oath, the latter having
only a reſpect to the oaths to Government; and that therefore
the oath of truſt and poſſeſſion cannot legally be tendered before
the election of Preſes and Clerk.
é&&&
THE judgment alluded to is reported by Mr Wight at page
256, and he recommends an act of Parliament to prevent indi-
reót influence in an election, from thoſe who, though not poſ-
ſeſſed of ſuch an eſtate as will allow them ſafely to take this
oath, ſhall yet be permitted to vote for the choice of Preſes,
which indeed has often been found the decifive queſtion at an
election. The certification of the aët, againſt any Freeholder
refuſing to ſwear, upon the requeſt of any Freeholder formerly
enrolled, is, that ‘ his vote ſhall not be admitted or allowed, and
‘ his name ſhall forthwith be eraſed out of the roll of Freehol-
* The firſt part of this deſcription is plainly confined to a meeting for ele&tion; the
other being applicable to ordinary Michaelmas meetings, where the rolls are adjuſted.
* ders.”
FREEHOLDERS QUALIFICATION. 83
* ders.” Of the conſequence of a dire&t refuſal there can be no
doubt. That muſt in every caſe be followed by expulſion from
the roll. Thoſe, however, who wiſh to continue upon the roll,
without taking the oath, have been always careful to avoid giv-
ing it a direct refuſal; and the game moſt commonly played
upon ſuch occaſions, has been for the nominal voter to retire
from the meeting the inſtant he had uttered his vote in the
choice of the preſes and clerk, and before there could be either
time or opportunity for propoſing to him the truſt-Oath. In
forme caſes the ſame perſon has returned at the time of eleēting
the Commiſſioner, and voted when called by name, before the
oath could be tendered; and, in ſhort, every manoeuvre that inge-
nuity could deviſe, has been reſorted to for the purpoſe of evad-
ing the oath. But the Court of Seſſion have been very careful to
defeat all ſuch ſchemes for eluding this moſt ſalutary teſt;
and the later decifions, without running counter to that of the
Houſe of Lords juſt mentioned, have put it in the power of Free-
holders, if they will only be vigilant and attentive to their rights,
to baniſh from the roll every perſon either refuſing, or in any
way whatever evading, the truſt-Oath.
THE firſt inſtance of any attempt at ſuch evaſion, ſeems to
have been that which occurred in the caſe of Ferguſſon contra
Campbellº, from Ayrſhire, at the election 1780; where a Free-
holder, immediately on the eleētion of preſes and clerk, tendered
the truſt-oath to another Freeholder preſent, whom he had kept
in his eye during the vote, but who, without making any anſ-
wer, walked out of the room. The Court ordered him to be ex-
punged, and awarded expences.
THE next caſe that occurs is that of Brodie of Brodie contra Ur-
quhart of Meldrum. At the election-meeting for the county
of Elgin 15th April 1784, Mr Brodie tendered the oath of
truſt and poſſeſſion to Mr Urquhart, a Freeholder ſtanding
upon the roll ; and inſiſted that he ſhould be expunged on
account of his declining to take it. This the Freeholders
having refuſed, a complaint was brought to the Court of Seſ-
* Quoted by Mr Wight, p. 255. *
# M ſion,
84. E L E CTION CAS E.S.
ſion, in anſwer to which Mr Urquhart himſelf gave the
following account of the matter: “ The reſpondent, after having
‘ voted for preſes and clerk, and qualified to Government, went
out of the court-room before any other buſineſs was brought on ;
and as, from what had paſſed before the Freeholders aſſembled,
he foreſaw that the buſineſs of the day was not to be conducted,
either with harmony or with that degreedfdecency, which, how-
ever keen different parties may be, is proper on ſuch occaſions, he
acknowledges that he had little inclination to return until the
roll ſhould come to be called for the election of the Commiſ-
fioner to parliament. How ſoon, however, he was informed
that this was to be done, he placed himſelf in an outer room,
which had one door towards the ſtreet, and another communi-
cating with the court-room, and upon his name being called,
he inſtantly made his appearance, and gave his vote for Lord
Fife. Then indeed, but no ſooner, had Mr Brodie even an
opportunity of tendering the truſt-oath to him. It was accor-
dingly tendered immediatly after he had given his vote: Upon
which he obſerved, That it was behind time : in proof of which,
reference was made to the act of parliament. But the Court found
the Freeholders had done wrong; ordered Mr Urquhart to be ex-
punged; and found him liable in expences*.
&&&&644$($&&&©6&6.
Two other caſes came ſoon after from the county of Caith-
meſs. At the Michaelmas-meeting for that county, in 1789, John
Davidſon, being then on the roll of Freeholders, voted in the
choice of preſes and clerk. Immediately after this, and before
the meeting had proceeded to adjuſt the roll, Mr Manſon-Sinclair
verbally called on eight of the voters ſeriatim by their names, and
among others on Mr Davidſon, to take the oath of truſt and
poſſeſſion. This propoſal one of the Freeholders preſent objećted
to, as being irregular, in as much as it tendered the oath to a
number of Freeholders in cumulo ; and inſtead of it he moved ‘that
* the roll ſhould be called and that the whole Freeholders preſent,
* at leaſt ſuch of them as ſhould be required ſo to do, ſhould
* take the oath individually in the order of the roll.’ This mo-
tion was indeed much to the ſame purpoſe as the other. The
**7th July 1784, Brodie of Brodie contra Urquhart of Meldrum,
queſtion
FREEHOLDERS QUALIFICATION. 85
-queſtion being put, which of the propoſitions ſhould be adopt-
ed 2 ſix of thoſe to whom the oath had been propoſed, voted
for the latter, which was carried; but Mr Davidſon when called
did not anſwer to his name. A great deal of altercation follow-
ed, by proteſts, &c. in regard to the mode of putting the oath;
and it was not till about ten o'clock in the evening that a mo-
tion was made, that Mr Davidſon ſhould take it; but before
this time he had left the meeting. A motion to expunge, on ac-
count of his abſence, as implying a refuſal of the oath, having
been over-ruled by the Freeholders, a complaint was brought to
the Court of Seſſion. It does not appear from the printed plead-
ings, whether Mr Davidſon had been preſent at the firſt intima-
tion of the truſt-oath by Mr Sinclair. It is pointedly averred,
and as pointedly denied; but it would ſeem from the judgment
of the Court, that this had not been confidered as abſolutely ne-
ceſſary, provided it could be gathered from the whole complexi-
on and circumſtances of the caſe, that Mr Davidſon, when he re-
tired, knew or ſuſpected there was an intention to put the oath to
him. It was ſaid “ That it was neceſſary to give an effectual
check to every attempt to evade the law ; and that if a perſon
who ſtands upon the roll ſhall be at liberty to walk out of the
Court immediately after giving his vote in the election of the
preſes, and before any other Freeholder has an opportunity of
calling upon him perſonally to take the truſt-oath, he may
have it in his power to continue on the roll during life, and
may, in an indirect manner, carry the eleētion of the candidate
he means to favour, although perfeótly conſcious that his qua-
lification is rotten and unſound, and ſuch as he dares not ven-
ture to ſupport by his own oath. Hence it was inferred, that
thoſe who act in this way muſt be preſumed to leave the
meeting on purpoſe to prevent their being required to comply
with this ſtatutory regulation.’ It is ſaid in the Faculty-re-
port, that “All the Judges ſeemed to think, that if any Freehold-
‘ er had declared his purpoſe of putting the oath before Mr
* Davidſon left the meeting, his abſence afterwards would be
* conſtrued into a refuſal to ſwear, unleſs he could give a ſuffi-
‘ cient reaſon for his quitting the meeting. And a majority
‘ being of opinion that Mr Davidſon's condućt was not leſs am-
M 2. * biguous,
86 E L E C*T* I O N CAS E.S.
* biguous, the Lords found, after adviſing the petition and com-
“ plaint, which was followed with anſwers, That the Freeholders
“ had done wrong in not expunging the name of Mr Davidſon
• from the roll,’ &c.” Mr Davidſon reclaimed, ſtill poſitively
denying his having been preſent either when the oath was firſt
mentioned or when it was put to him, and praying their Lord-
ſhips to alter, “ or at leaſt, before anſwer, to find, that it is in-
* cumbent upon the complainers to prove that he was preſent
* in the meeting when the truſt-oath is ſaid to have been put to
‘ him.’ This petition was however refuſed without anſwers.
THE other Caithneſs caſe was that of John Roſe Sheriff-clerk
of the county, who at the ſame meeting voted in the election of
preſes and clerk, to the latter of which offices he was himſelf
choſen ; and after he had accepted it, the oath of truſt and poſ.
ſeſſion was tendered to him, which however he refuſed to take,
ſaying, that having been elečted clerk, he had reſoved not to vote
in any queſtion which might be agitated at the meeting. But
his accepting the office of clerk indicated a fixed purpoſe to
remain at the meeting until the buſineſs ſhould be fully com-
pleted; and any reſolution againſt voting might have been bro-
ken through at pleaſure by his voting the moment his name was
called. The Freeholders, however, refuſed to ſtrike him off the
roll, till they were compelled to do ſo upon a complaint to the
Court of Seſſionſ.
IN the courſe of the ſame Seſſion a caſe from the county of
Cromarty had a ſimilar fate. Mr Hugh Roſe of Aitnoch was en-
rolled in 1765 among the Freeholders of that county, as wadſet-
ter of the ſuperiority of certain lands, of which he afterwards ac-
quired the right of reverſion ; and being thus fully veſted in the
ſuperiority, he conveyed the fee of it to another perſon, reſerving
to himſelf the liferent. After this, Mr Roſe conveyed away his
liferent of Certain parts of the eſtate in virtue of which he had
* 20th January 1790, Sir William Dunbar contra Davidſon.
+ Winter-ſeſſion 1789–90, Freeholders of Caithneſs contra Roſe. Indeed it is ſaid, the
matter appeared ſo clear, that Mr Roſe’s couniel declined giving in any anſwer to the
eomplaint-
been
FREEHOLDERS QUALIFICATION. 87
been originally enrolled; ſtill, however, retaining as much as in
point of valuation entitled him to ſtand on the roll of Freeholders.
While matters were in this fituation, an objection to Mr Roſe's con-
tinuing upon the roll, was, two months before Michaelmas 1789,
lodged by Meſſrs Macleod and Urquhart, Freeholders in the
county. Mr Roſe at the ſame time preſented a repreſentation and
petition to the Freeholders, ſtating the alteration which had ta-
ken place as to his original titles of enrolment, and deſiring to be
continued on the roll in virtue of the liferent ſtill reſerved by
him. At the Michaelmas-meeting in 1789, Mr Roſe appeared in
the court-room, which, however, he quitted before the ſederunt
was marked; and accordingly his name was not mentioned in
the minute taken down by the clerk. But after moſt of the bu-
fineſs was over, and when nothing remained but what related to
his own vote, Mr Roſe having come into the room (as he alleged
in conſequence of a meſſage from one of the Freeholders), with-
out, however, proceeding to qualify himſelf to vote by taking the
oaths to Government, Meſſrs M'Leod and Urquhart tendered to
him the oath of truſt and poſſeſſion. On this he quitted the room,
ſaying that he was not a member of the meeting. As ſoon as he
was gone, it was propoſed in his behalf, that the Freeholders
ſhould take under their conſideration what had been ſtated in his
repreſentation and petition. A majority of them determined that
Mr Roſe's name ſhould not be expunged. They immediately
after over-ruled the objection that had been lodged againſt him ;
and likewiſe found that he ſhould retain his place on the roll,
in virtue of the reſerved liferent. On adviſing a complaint by
Meſſrs M'Leod and Urquhart, with anſwers, the Court of Seſſion
found (18th December 1789), that the Freeholders did right
in not expunging Mr Roſe; but the queſtion having been brought
under review by a reclaiming petition and anſwers, the Court
found, “ That Mr Roſe having refuſed to take the oath of truſt
‘ and poſſeſſion, his name ought to have been expunged from
* the rollf. 4. *
# 12th February 1790, MLeod and Urquhart contra Roſe. A
T.
88 E L E GTION CAS E. S.
At the elečtion-meeting for Renfrewſhire in 1790, intimation
was made by proteſt to ſeveral of the Freeholders, that if after vo-
ting for preſes and clerk they ſhould withdraw, in order to evade
the oath of truſt and poſſeſſion, and certain interrogatories, they
ſhould be held to have forfeited their place on the roll. Notwith-
ſtanding this, ſeveral gentlemen withdrew immediately after vo-
ting for the preſes, and before there could be time to propoſe the
oath. A motion to expunge was over-ruled by the Freeholders;
but their judgment was reverſed by the Court of Seſſion, except
as to one gentleman, who, having left the meeting earlier, had not
heard the proteſt taken f.
A case wrey fimilar occurred lately. At the Michaelmas
meeting in 1795 for Forfarſhire, and, before the election
of preſes and clerk, the minutes bear that ‘..Mr Hay gave notice
* to every Freeholder preſent at the meeting, that if they ſhould
* leave the court-houſe before an opportunity could be taken by
‘ him or any other Freeholder, of putting the oath of truſt and
* poſſeſſion, that they ſhould be held as leaving the meeting for
* the purpoſe of evading or refuſing to take the ſaid oath, and on
* that account ſhould be liable to be ſtruck off the roll.” After
the preſes and clerk were choſen, ſome other buſineſs was taken
up by the Freeholders, on finiſhing which it was moved, “ That
* Major Alexander Turnbull of Ardo, ſhould take the oath of
“ truſt and poſſeſſion;' but before this time the Major had left the
meeting.; and though frequently called at the door of the court-
room, he did not make his appearance. A motion to expunge
was thereupon put and carried. The Major complained to the Court
of Seſſion; but, though it was ſtrongly contended for him, that the
intimation made by Mr Hay, could not be confidered, either as a
tender of the oath to any individual Freeholder, or even as fig-
nifying, an intention that it was to be tendered at the meeting,
(which it was ſaid rendered this caſe different from all that had
lately been decided with regard to a conſtructive refuſal of the
oath) the Court diſmiſſed the complaint, on adviſing the ſame with
+ 24th December 1790, MDowall contra Sir William Maxwell.
2. anſwers,
FREEHOLDERS QUALIFICATION. 89
anſwers, replies, and duplies. They alſo gave the reſpondents
the ſtatutory penalty, and their expences *.
THE laſt caſe to be mentioned was attended with circum-
ſtances of a very ſingular nature. At the laſt meeting of elec-
tion for Roxburghſhire (1790), the oath was tendered to Philip An-
ftruther-Paterſon Eſq, who declared that he was willing to take
it; and the clerk was for that purpoſe proceeding to fill up an
oath with the names of the lands, when another Freeholder, in
the ſame intereſt with Mr Anſtruther-Paterſon, aroſe and required
him previouſly to anſwer certain interrogatories; which being
refuſed, a motion to expunge was made by the ſame gentle-
man, and carried. Mr Anſtruther-Paterſon, however, voted in
all after-queſtions under proteſt; and the oath having been a-
gain tendered, the preſes refuſed to put it, alledging that it was
incompetent to do ſo to a gentleman whoſe name had been
ſtruck out of the roll. Mr Anſtruther-Paterſon afterwards com-
plained to the Court of Seſſion; and the gentleman who had firſt
tendered the truſt-oath having obtained leave from the Court to
anſwer the complaint f, he ſtated the whole tranſaction of propo-
fing interrogatories, &c. to have been the reſult of a previous
concert and agreement between the complainer and his friends,
the ſole objećt and purpoſe of which was to ſcreen that gentleman
from taking the oath of truſt and poſſeſſion, and at the ſame
time to have the benefit of his vote. Mr Anſtruther-Paterſon’s
qualification was upon the ſame eſtate, and in all reſpects in the
ſame fituation, with the votes of other gentlemen who had that
day been expunged for refuſing to ſwear; and although, from the
very great reſpectability of the gentlemen concerned, it was hard-
ly poſſible to conceive them capable of deſcending to ſuch a .
trick, even in a ſtrong political conteſt; yet as the charge was
pointedly and unequivocally made to the Court, their Lord-
ſhips allowed a proof, upon adviſing the complaint, with anſwers,
replies, and duplies f.
* 26th February 1796, Turnbull, contra Sir David Carnegie.
+ As to this ſee above, page 12. * * * * *
f 12th February 1791, Anſtruther-Paterſon contra Elliot and Rutherfurd. It is of
no conſequence as to this queſtion, that, the proof having failed, the-complainer was
afterwards-
90 ELECTION CAS Es.
WHEN the law requires Freeholders to ſwear to their being in
poſſeſſion, it does by no means require what is termed natural
poſſeſſion. Civil poſſeſſion, or poſſeſſion by another, who holds
the actual poſſeſſion in the name of the owner, and under his
right, is, as to all queſtions of elečtion, confidered under the ſtatute
1681, to be the owner's poſſeſſion. Several examples of this rule
are given by Mr Wight, at p. 257; and very lately the poſſeſſion
of truſtees was held by the Court to be the poſſeſſion of an ap-
parent heir for whoſe behoof they acted, and upon which he
was found entitled to vote *,
THE moſt important clauſe of the truſt-oath is the concluding
one, “And that my title to the ſaid lands and eſtate is not nomi-
* nal or fićtitious, created or reſerved in me, in order to enable
* me to vote for a member to ſerve in Parliament, but that the
* ſame is a true and real eſtate in me, for my own uſe and bene-
‘ fit, and for the uſe of no other perſon whatſoever.’
TMANY queſtions have occurred fince the introdućtion of this
oath, relative to the proper extent and application of theſe words,
* nominal or fićtitious ; not indeed as to the meaning of the
words themſelves, which are in univerſal uſe, and of the moſt ob-
vious import, but Imo, as to the particular ſpecies of title meant ,
to be comprehended under them, and 2do, the mode of inveſti-
gating the truth of the objećtion in each caſe.
By a nominal or fićtitious title, muſt certainly be meant one,
which, while unexceptionable in form and appearance, is unreal
and unſubſtantial at bottom ; which profeſſes to confer an eſtate,
*
afterwards ordered by the Court to be replaced on the roll. It is the relevancy alone
that is now, under conſideration; and, in pronouncing upon it, the Court were bound
to hold the averments as true. The conſequence of the averments not being afterwards
made out was, that the party who ſtated them was found liable in the expence of
the proof, and in that of extract, 9th March 1791, &
* 14th December 1790, Sir Alexander Campbell contra Peter Spiers. A ſimilar
ſpecies of poſſeſſion had been ſuſtained in a prior caſe, 11th March 1786, Robert
JDonaldſon and others contra Sir Ludovick Grant. *
when
FREEHOLDERS QUALIFICATION. 9 i
when by the underſtanding of parties nothing was meant to be
conferred ; in ſhort, the reſult of a tranſaction, ubi aliud agitur
aliud ſimulate concipitur. In judging upon the queſtion, Whether a
title comes under this deſcription ? we muſt be very careful to diſ-
tinguiſh between the title to vote, the Lordſhip, or immediate vaſ.
ſalage of the Crown; and the reddendo, or pecuniary profit ariſ.
ing from that vaſſalage. This laſt has not the ſmalleſt influence
whatever upon the right of voting, as muſt be perfectly apparent
to every one who carefully peruſes the eleētion-ſtatutes. From
not ſufficiently adverting to this diſtinétion, many queſtions have
occurred in the Court of Seſſion, where qualifications have been
objećted to as liferents or wadſets of ſuperiority, yeilding little
or nothing to the holder, except the right of voting. All theſe
however, and many ſimilar objećtions, relate only to the pecu-
niary value of an eſtate, not to the privileges of a political nature
which it affords, and have therefore been uniformly repelled
by the Court, from the firſt agitation of the queſtion, down to
the preſent day. Many inſtances are adduced by Mr Wight,
p. 258. et ſeq.
IT is therefore quite clear, that the objection of nominal and
fićtitious, depends in no degree on the form of the right, or its pa-
trimonial value; ſo that a wadſet, or liferent of ſuperiority, with
a reddendo the moſt trivial, even a pepper-corn, the eighth part of
a roſe, or a ſnow-ball, with a perpetual diſcharge of the caſual-
ties, gives as perfeót and unqueſtionable a right of ſuffrage, as if
the eſtate yielded L. Io,000 a-year : For although ſuch an
eſtate may be called nominal as a patrimonial eſtate, yet the poli-
litical right which it confers is not. Neither does it make any
difference, whether the qualification was acquired by purchaſe
or by gift, nor even though it ſhould be acknowledged to have
been acquired for the ſole purpoſe of voting, or of being elected
a member of Parliament; for although theſe circumſtances may,
in particular caſes, create a ſuſpicion of influence to a certain
degree, and although the laſt circumſtance may at firſt fight ap-
pear to run counter to the words, ‘created or reſerved,’ &c. at
the concluſion of the oath ; yet it is the obvious meaning of the
whole
92 E L E CT I O N C A SES,
whole clauſe taken together, that all the ingredients muſt concur
in the deſcription there given of a vote that is faulty. Unleſs,
ther fore, a vote is nomina/ or fifitiour, in the proper ſenſe of
the word, AND ALso created or reſerved in the holder, to enable
him to vote, no objection can lie againſt it,
THESE obſer ations, it muſt be again repeated, apply with equal
force to every ſpecies of qualification recognized by law, and to an
eſtate the moſt valuable, as well as the moſt trivial. But on the
other hand, it is no leſs true, that a qualification, of whatever value,
and with whatever views acquired, muſt, in order to be protect-
ed from the imputation of nominal and fićtitious, be completely
and abſolutely veſted in the holder; no other perſon muſt have in
it any right or intereſt, direct or indirect; and the holder muſt be
under no expreſs obligation, and no tacit or honorary engagement
whatever, to exerciſe the right for the advantage or behoof, either
of the granter, or of any other perſon. This, however, muſt be
carefully diſtinguiſhed from a mere promiſe to vote for the can-
didate patronized by a particular perſon. If that were to found
the objection, few qualifications would eſcape. The voter muſt
be at the nod and direction of ſome perſon, and have, in exerciſ-
ing the right, no proper will of his own, in order to bring his
title under the deſcription reprobated by the words of the oath.
It is farther to be obſerved, that the obječtion of nominal
or fićtitious, &c. has not the ſmalleſt dependence upon the re-
lative ſituation of the granter and receiver; for a qualifica-
tion may be free and independent, or the contrary, whether
the parties are, or are not connected with each other by the ties
of blood, friendſhip, or political intereſt. The queſtion, there-
fore, Whether a qualification is, or is not nominal or fićtitious :
muſt in every caſe depend upon ſecret underſtanding and feel-
ings, confined to the breaſts of the parties concerned.
This doćtrine has been univerſally underſtood as the law,
ever ſince the introduction of the truſt-Oath, and indeed muſt
have been ſo from a much earlier period, as it means nothing
IſlC)1 &
FREEHOLDERS QUALIFICATION. 93
more than that the eſtate of every claimant muſt be boma fide veſt-
ed in him, which certainly is implied in all the election-ſta-
tutes. The great queſtion has been, in what way the qua-
lity of nominal or fictitious, &c. was to be inveſtigated The
phraſe itſelf appears in no other part of the election-law
than that clauſe of the truſt-oath which has been laſt quo-
ted; and, it has been argued accordingly, that this oath is the
only teſt which can be reſorted to upon the ſubjećt. But it has
been on the other hand more plauſibly urged, That, ſince no-
minal or fićtitious votes are reprobated by law, not only in the
words of the oath, but in the ſpirit and intention of every ſta-
tute relative to elections, (which, in requiring Freeholders to be
poſſeſſed of ſuch and ſuch titles, clearly imply, that they ſhall be
in the bona fide poſſeſſion of every thing there appearing to be
veſted in them), the making of ſuch votes is a fraud upon the
law : And that, as it is of the nature of fraud to appear under
various ſhapes, it muſt therefore be judged of in every caſe, by
its own particular circumſtances.
IN Mr Wight's Inquiry, from p. 258. downwards, ſeveral
caſes are quoted, in which the obječtion of nominal or fićtiti-
ous was repelled ; not however becauſe it was confidered incom-
petent to inveſtigate that matter by every legal ſcrutiny, but
becauſe the circumſtances charged, as inferring nominal and
fićtitious, were not conſidered by the Court as ſufficient to ſup-
port that concluſion.
ON the eve of the general eleētion 1768, however, when no-
minal votes had become infinitely multiplied, a new mode
of inveſtigation was fallen upon, which conſiſted chiefly of
a reference to the oath of the claimant, of certain facts and
circumſtances attending his title, from the admiſſion of which
it was to be held nominal and fiétitious. It is unneceſſary
to ſtate the particular facts ſpecified, as they are fully no-
ticed by Mr Wight in the paſſages juſt referred to. Suffice
it to ſay, that the Court of Seſſion, upon a full conſidera-
tion, allowed the examination in many caſes to proceed ; that
in conſequence, ſeveral Freeholders were ſtruck off the roll,
N 2 ſome
94. EL E. CTION CASE'S.
forme for having refuſed to anſwer, and others in conſequence of
acknowledging, upon oath, ſuch facts as were held by the Court
to be ſufficient evidence of nominal and fićtitious.
Two or three of the caſes alluded to (and in which the parties
had refuſed to anſwer) went to the Houſe of Lords, where the judg-
ments of the Court of Seſſion were reverſed. This no doubt went the
length of eſtabliſhing it for law, that the examination upon oath, al-
lowed by the Court of Seſſion, being incompetent, that Court could
not ſtrike off a Freeholder either for refuſing to ſubmit to it, or on
account of any anſwers which might thereby be drawn from him.
The reverſals in the Houſe of Peers ſeem to have gone, however,
no farther than this. Little or nothing was ſaid, in the plead-
ings, againſt the relevancy of the obječtion of nominal and fićti-
tious, whenever offered to be inſtructed habili modo. It was
chiefly contended by the appellants, That having already taken the
oath of truſt, which they ſaid was the teſt required by law, they
could not be obliged to ſwear over again. It is ſaid in the ap-
peal caſe for Mr Wakace (ſee Mr Wight p. 264.) ‘The Court
* of Seſſion had aſſumed a legiſlative power, by introducing an ad-
ditional teſt to that ordained by the aâ of parliament. The ad ſays,
That the party taking the oath preſcribed, at the requeſt of any
Freeholder, ſhall be enrolled as abſolute owner of the eſtate, in
right of which he claims enrolment. The interlocutors ſay, That
after this is done, he ſhall undergo a ſecond examination, upon
oath, to the very matter which was the object of the firſt. The
aćt ſays, That upon refuſal to take the oath preſcribed, the party's
vote ſhall not be admitted, and his name ſhall be eraſed from the
roll of Freeholders. The interlocutors ſay, That upon refuſ-
ing this ſecond teſt, his name ſhall be expunged from the roll
of Freeholders. And thirdly, but which is worſt of all, the
aćt ſays, That the perſon ſwearing falſely, ſhall incur the pains
and puniſhment of perjury, and be proſecuted for the ſame ac-
cording to the laws and forms in uſe in Scotland; which muſt
therefore be upon a legal trial, and by the verdićt of a jury. But
the interlocutors go a ſhorter way to work. They ordain the
party to be examined upon the interrogatories, in order to con-
* vićt
FREEHOLDERS QUALIFICATION. 95
vićt himſelf; and, upon his refuſal, declare the eſtate which he
had before ſworn his own, to be not his own, and his title
thereto nominal and fićtitious. Thus, inſtead of a legal trial
upon proper evidence adduced againſt him, he muſt either ac-
cuſe himſelf, or, if he refuſes it, ſtands conſequentially con-
vićted of perjury. No law of either part of the united kingdom.
warrants ſuch a proceeding.’ -
.
THESE reverſals, however, were conſidered at the time, and
for long after it, as going much farther than merely to exclude
an examination upon oath; and, in particular, Mr Wight, in
both editions of his work, lays it down as the reſult of them,
that ‘ until ſome new regulation be introduced by the legiſla-
‘ture, there can be no check againſt nominal and fictitious qua-
* lifications, created or reſerved to ſerve a particular purpoſe, other
“ than the oath preſcribed by the act of the 7th of Geo. II.
Such, accordingly, ſeems to have been the underſtanding of
the country reſpecting this point for nearly twenty years; for
although, at the general elections which happened in the inter--
mediate period, many nominal and fićtitious votes appeared, .
there is not to be found any caſe in which the general queſtion
was any how agitated, prior to the general election 1786. There
were indeed, in 1785, ſome indirect diſcuſſions of the queſtion
in the High Court of Juſticiary, by proſecutions for perjury; but
theſe were ineffectual to cure the ‘àwil, as will afterwards appear.
At the general election laſt alluded to, there came from the
ſhire of Renfrew a variety of caſes in which the obječtion of
nominal and fićtitious was urged; and it underwent, upon that
occaſion, a moſt ſolemn and deliberate diſcuſſion in the Court of
Seſſion. The reſult was, that the Court held it competent for
them to enter into the ſpecial circumſtances of each caſe, and to
pronounce upon the qualifications accordingly. One or two in-
ſtances ſhall be given.
Mr Archibald Spiers of Elderſlie held his eſtate under a ſettle--
IſleIlt .
96 ELECTION CASEs.
ment of ſtrićt entail, executed by his father 9th December 1779,
and duly recorded. This entail contained ſtrićt clauſes againſt
alienation, and particularly againſt diſponing in wadſet or life-
rent, which are not uſually prohibited in entails; and wadſet
and liferent being the common forms of conſtituting nominal
votes, it had probably been meant to guard againſt all ſuch.
Mr Archibald Spiers being deſirous of making votes, upon his
property, and ſuſpecting that ſuch alienations might ſubject
him to hazard under the entail, applied for, and obtained, from
ſuch of the exiſting heirs-tailzie as were of age, and from the
tutors and curators of ſuch as were minors, a deed of conſent,
narrating the entail, and ſubſuming, That “although the ſaid diſ-
* poſitions of the ſuperiority fall within the words of the prohibition,
‘ and irritancy before mentioned, yet the ſame do not fall within the true
* meaning and ſpirit thereof, as the entailed effate will not be thereby de-
teriorated, or the intereſt of the heirſ of entail in any way hurt or affected,
but on the contrary, the influence of the family may be thereby conſider-
ably increaſed; and it is therefore reaſonable that we ſhould
grant theſe preſents,’ &c. The deed then conſents that he
grant diſpoſitions of the ſuperiority in liferent, or even in fee,
provided he did ſo in the ſame terms with thoſe of the entail,
ſubſtituting, to the grantee, himſelf and the other heirs of entail ;
and it was alſo provided, that in caſe any other heir of entail
ſhould bring a declarator, whereby the eſtate ſhould devolve up-
on the conſentors, they ſhould account to him for the whole
profits, and allow him the exertiſe of ‘all the faculties competent
“ to him by the foreſaid deed of entail, as freely as if his right
* to the ſame had not been irritated.’ - -
&
&
G
&
&
ONE of the ſubſcribers of this deed was Mr George Buchanan,
merchant in Glaſgow, as an acting guardian or curator for
ſome of the late Mr Speirs's younger children. He afterwards
accepted one of the liferent-qualifications, created by Mr Spiers,
yielding 61°, d. Sterling annually, and upon it was enrolled at
the eleētion-meeting i 786. But of this a complaint was brought
to the Court of Seſſion ; on adviſing which, with anſwers, the
Court ordered a hearing, and afterwards memorials, upon the
• general

FREEHOLDERS QUALIFICATION. 97
general queſtion; the reſult of all which was, to find the
qualification nominal and fictitious, and to order Mr Buchanan
to be expunged”.
ON the ſame day a ſimilar judgment was pronounced in the
caſe of Mr Andrew Buchanan, junior, merchant in Glaſgow,
whoſe enrolment had taken place at the ſame time, and upon a
title in all reſpects ſimilar to that of Mr George Buchanant.
THE Honourable William Elphinſtone had been enrolled at the
ſame time with Meſſrs Buchanan, and was like them called in
a complaint to the Court of Seſſion. The obječtions originally
ſtated before the Freebolders, and in the petition and complaint to
the Court of Seſſion, were chiefly upon the ground that the lands
conveyed to Mr Elphinſtone were part of another eſtate be-
longing to a different claimant. Theſe objections were, how-
ever, obviated to the ſatisfaction of the Court : But the general
queſtion of nominal and fićtitious being then fully before the
Court, their Lordſhips, on confidering the whole aſpect of Mr
Flphinſtone's qualification, particularly the ſtričtneſs of the entail
by which the granter held his property, and the very trivial emo-
lument (13; d. Sterling) ariſing from the titles, which conveyed
nothing but a mere liferent of ſuperiority, found the title nomi-
nal and fićtitious. It was ſaid on the Bench, “ That a convey-
* ance from the proprietor of an entailed eſtate, might in, ſome
* inſtances, afford an unexceptionable right to vote. But in diſ-
* tinguſhing ral qualifications from ſuch as were nominal and
* fictitious, the circumſtance of the perſon from whom the right
* 20th February 1787, MDowall of Garthland and Campbell of Blythſwood contra
George Buchanan. See the report of this caſe in Fac. Coll, vol. 7th, No 3 3, where the
reaſoning upon the Bench is given much more at large, than is commonly done in that
colle&tion.
+ 2 oth February 1-87, Campbell of Blythſwood and others contra Andrew Bucha-
nan. The Faculty report of this caſe. (vol. 7th, No 3 4.) ſays Mr Andrew Buchanan did.
not ſubſcribe the deed of conſent ; but this is a miſtake, for it appears from the printed.
papers, that he actually did ſubſcribe it as another of the tutors for Mr Speirs's children.
6. W33,
*
98 E L E CT I O N CAS E.S.
was obtained being under reſtraints of this ſort, had a con-
iderable weight, as it could hardly be doubted, that the gran-
tee was at leaſt under an implied obligation, to re-convey his
right, whenever this became neceſſary to prevent a forfeiture.
And when to this was joined the preſumption ariſing from the
limited nature of the right itſelf, it was impoſſible to conſider
it as one to which the legiſlature meant to annex a right of
voting.” The Court gave the following judgment, which was
however carried by the narroweſt majority poſſible: “Find the
* reſpondent's qualification is nominal and fićtitious; ſuſtain the
* objećtion to his enrolment; Find that the Freeholders did wrong
* in enrolling the reſpondent on the roll of Freeholders of the
* county of Renfrew ; therefore grant warrant, &c.”
&
*
6
©
&
&
6
6
IT is unneceſſary to ſtate any more of the great number of
caſes where the objećtion of nominal and fićtitious was at the
ſame time opponed f, as the only object of the preſent inquiry is
the competency of diſcuſſing the objećtion, and the three deciſions
which have been juſt noticed, ſufficiently eſtabliſh that point.
In the other queſtions, the Court ſuſtained ſome of the qualifica-
tions as good, and rejected others as nominal and fićtitious, upon
diſtinétions which may be reckoned of different degrees of im-
portance by different people, but which it would be improper
now to enter upon,
Of all theſe queſtions, Mr Elphinſtone's alone went to the
Houſe of Lords. In the appeal-caſes, the identical arguments
are uſed on each ſide, which were adopted in the memorials be-
fore the Court of Seſſion in the caſe of Mr George Buchanan;
and they reſpect merely the general queſtion, and the intrinſic
or ex facie evidence, ariſing from the nature of the right, and
from the titles produced to inſtruct it. The reſpondents, how-
ever, put in to the Houſe of Lords, beſides their printed caſe, a
* 1ſt March 1787, Campbell of Blythſwood, &c. contra Elphinſtone.
+ See Fac. Col. vol. 7th, Nos 316. 317, 318, and 319,
* Note
FREEHOLDERS QUALIFICATION. 99
* Note reſpecting the evidence in the cauſe; which note is figned
by their counſel, and mentions all the different circumſtances
which they knew attended the expeding of the titles, that ſeem-
ed to infer an underſtanding or confidence, between the granter
and receiver, e. g. That the conveyance and ſafine were original-
ly blank in the name of the grantee, and that both were expedic,
or appeared to be expede, by the ordinary agent of the granter,
&c., And the note goes on thus: “ Whether Mr Elphinſtone
‘ did actually pay money, or what ſum, for this right—Whether
he applied to Mr Shaw-Stewart to give him a freehold qulifica-
‘tion, or was ſolicited by Mr Shaw-Stewart to receive it—Whe-
“ ther the papers were delivered to him before the enrolment, or
were at any time in his poſſeſſion, and how long—Whether
he means to receive the 13+d. Sterling, per annum, or not to re-
“ ceive it—Whether he or Mr Shaw-Stewart paid the expence of
“ the diſpoſition and infefnment, and of ſo much of the charter as
‘ correſponds to the lands in queſtion—Whether Mr Elphinſtone
* has paid, or means to pay, the expence of defending his title
* in the Court of Seſſion, or of diſcuſſing the appeal here—Whe-
“ ther the agent who condućts the cauſe was cimployed by Mr
* Elphinſtone or by Mr Shaw-Stewart—Theſe are all matters of
conječture, and perhaps of ſmaller importance. No explana-
‘tion has ever yet been given of them by Mr Elphinſtone, nor
‘ are they aſcertained one way or another by evidence.’ And
as none of theſe circumſtances, nor indeed any ſpecialties what-
ever in the caſe, had been pleaded upon in the Court below, the
queſtion having been argued there, chiefly by reference to other
caſes, the Houſe of Lords, upon the 30th April 1787, ‘ Ordered
‘ that the cauſe be remitted back to the Court of Seſſion in Scot-
‘ land, to hear parties further thereupon, with liberty to receive
* ſuch new allegations and evidence as the occaſion may re-
* quire.”
C
NOTHING, it is ſaid, was done farther upon this caſe in con-
ſequence of the remit; and the Court of Seſſion do not appear
to have conſidered it as giving them full authority to enter into
a thorough inveſtigation of the obječtion of nominal and fićti-
tious ;
I CAO E L E CTION CAS Es.
tious ; for, in the very next caſe in which the queſtion occurredº,
we find the Court refuſing even to allow the examination of
the claimant himſelf, upon the circumſtances and character of
his title, and his mode of acquiring it.
THE caſe alluded to is the noted one of Sir John Macpherſon,
from Aberdeenſhire; and as it has been ever ſince regarded as a
leading one, the circumſtances ſhall be ſtated at large. The Duke
of Gordon, from one charter, conveyed 25 ſuperiorities, one in the
fee of wadſet, and 24 others in liferent rights, by as many diſpo-
ſitions and aſſignations, all dated 26th Sept. 1786. Safines followed.
on them, all dated 27th, and regiſtered 29th of that month. On one
of theſe qualifications Sir John Macpherſon claimed, at Michael-
mas 1788, to be put upon the roll of Freeholders; when it was
obječted by ſome of them, That the qualification was “ nominal
‘ and fićtitious, confidential, and created for the ſole purpoſe of
* enabling him to vote, and that in defraud of the ſtatute of the
* 7th of Geo. II. and of the other laws relative to the qualification
of Freeholders entitled to vote in the election of a member to:
* ſerve in parliament for this county.’ This objećtion was over-
ruled by the Freeholders; it having been anſwered, that the
claimant was a ‘real and true purchaſer of the ſuperiority, for
‘ a price actually paid.’
&
A COMPLAINT was brought againſt this enrolment, and a-
gainſt that of the Duke's other voters in the ſame ſituation. In
this complaint, the Freeholders, in order the more clearly to
diſcover the nominal and fićtitious nature of the title, required
Sir John to confeſs or deny the following averments, which, if
denied, they offered to prove : -
I. That the conveyance of the lands, contained in the reſpon-
dent's titles, was made without his previous conſent or know-
* The intermediate caſe of Lindſay contra Dryſdale from the ſhire of Fife, decided
6th March 1788, has nothing to do with the queſtion of competency, as that queſtion
was there waved, the claimant having profeſſed his willingneſs to ſubmit to every invetti-
gation.
ledge;
FREEHODERS QUALIFICATION. I C I
ledge; at leaſt that the reſpondent was ſolicited by the noble
Duke, from whom he derives his right, to accept of a freehold-
qualification.
II. That the expence of making out the title-deeds was paid
by his Grace.
III. That the title-deeds were not delivered to the reſpondent
before his enrolment, or at any time in his poſſeſſion previous
thereto.
IV. That when he was informed of the conveyance, or was
prevailed on to accept it, he did not mean, or think himſelf
called upon, to defray the expence of defending his title in this
Court or elſewhere.
V. That he did, when he accepted ſaid conveyance, and ſtill
does, conſider himſelf as in honour bound to vote for the candi-
date who may be patronized by the noble Duke, and to renounce
his freehold-qualification at his Grace's pleasure.
IN his anſwers, Sir John freely declared, “That he acquired
“ the liferent of the ſuperiority in queſtion, for the expreſs and
* ſpecial purpoſe of enabling him to vote for a member of Par-
* liament. This was his obječt in acquiring it; this was his
‘ view in making the purchaſe. Had not the ſuperiority given .
‘ him this right, he probably never would have acquired it; and
‘ were this right now to be taken away, he would probably care
‘ very little what became of the ſuperiority.’ But he denied the
competency of requiring him to anſwer the ſpecial interrogatories
which have been mentioned, as he contended the truſt-oath, intro-
duced by the 7th Geo. II. was the only legal teſt upon the ſubjećt.
The Court accordingly found “it incompetent to put the queſtions
* to the reſpondent, propoſed by the complainers: Repel alſo the
* objećtion of nominal and fićtitious to the reſpondent’s qualifi-
a * O 2 ‘ cation;
I O2 E L E C T I O N C A S E S.
‘ cation ; and therefore diſmiſs the complaint, aſſoilzie (i. e.
‘ acquit) the reſpondent, and decern “.’
THE Freeholders appealed ; and after hearing counſel for about
four days, the Houſe of Lords ordered and adjudged, That
“ the ſaid interlocutor complained of in the ſaid appeal be, and
“ the ſame is hereby reverſed. And it is hereby further order-
‘ ed, that the reſpondent do confeſs or deny the averments in
“ the appellants' pleadings f.’
BEFore this determination was given, Sir John Macpherſon,
the direct party to the queſtion, had gone abroad ; ſo that there
was no opportunity of getting his confeſſion or denial of theſe
averments. The ſame queſtions were, however, put to ſeveral
of the other Freeholders, created by the Duke of Gordon at the
ſame time, and in circumſtances perfeótly ſimilar to thoſe of
Sir John Macpherſon ; and ſome of them gave in anſwers to the
interrogatories at great length. As the firſt four interrogatories
do not go far to eſtabliſh any degree of confidence or underſtand-
ing between the granter and receiver, it will only be neceſſary to
mention the anſwerto the fifth and laſt, which was chiefly attended
to by the Court; and the anſwer of one Freeholder ſhall be given
as a ſpecimen of the whole. Mr Tait anſwered, ‘I confider myſelf
bound in honour, not to vote in the county of Aberdeen a-
gainſ; the candidate patronized by the Duke of Gordon ; but
I do not confider myſelf in honour bound to vote for ſuch
‘ candidate. I entertain this feeling, that I ought not to vote
againſt the candidate patronized by the Duke of Gordon,
not merely becauſe I derive my qualification from his Grace,
but alſo in conſequence of other circumſtances totally foreign
from the preſent cauſe. With regard to renouncing the life-
rent in queſtion, I think myſelf bound in honour, as I am diſ-
poſed in inclination, to do ſo, whenever his Grace expreſſes a
* wiſº to that purpoſe.” On adviſing this and finilar admiſſions
* I oth March 1789, Sir William Forbes of Craigievar and others, contra Sir John
Macpherſon -
t 19th April 1790,
from

FREEHOLDERS QUALIFICATION. Io.3
from ſome of the other voters, the Court unanimouſly found
the titles of the reſpondents nominal and fiétitious, and ordered
them to be expunged +. They at the ſame time held others
as confeſſed upon the ſame interrogatories, for having refuſed to
anſwer; and ordered them in like manner to be expunged f.
IN all theſe caſes, as indeed in moſt of thoſe that have lately
turned upon the queſtion of nominal and fićtitious, the mean of
proof reſorted to has been, an examination of the claimant reſpect-
ing the ſtate and charaćter of his own title; and, confining the
operation of the judgment of the Houſe of Lords to the ſpecial
circumſtances in which it was pronounced, there is no direct au-
thority for any other mode of proof. But it is quite clear,
and was well underſtood, from what fell from the noble and
learned Lord then upon the woolſack, to have been his Lordſhip's
decided opinion, That to create a vote for the unlawful pur-
poſe of making the holder of it give his ſuffrage, not according
to his own inclination or opinion, but at the nod of his creator,
(if the expreſſion may be permitted) was a ſpecies of legal fraud,
and that therefore it was competent to be inveſtigated prout de
jure. This principle has been followed up by the Court of Seſ-
fion, as will appear from a recent deciſion. Colonel Ferrier hav-
ing claimed enrolment at the eleētion-meeting for Stirlingſhire,
in 1790, it was, inter alia, objected, That his qualification was
altogether nominal, fiétitious, and confidential, never intended to
give him a free and independent freehold for his own behoof,
but, like others of a ſimilar nature which have lately been ſo
juſtly reprobated in the Houſe of Lords and Court of Seſſion, cal-
culated ſolely to increaſe the political intereſt of Sir Archibald
Edmonſtone, from whom it flows, by enabling him to give more
votes than one in the election of the member of parliament. The
Freeholders having refuſed to enrol, the Colonel complained, .
* I kth June 1790, Sir William Forbes and others contra Mr William Tait and others.
t Similar q eſtions had been propoſed, in a prior caſe, to Lieut. Col. Murray : but
there was no occaſion to enter upon them, judgment having gone againſt the Colonel,
up ºn a defečt in the claim exhib-ed by him to the Freeholders. This judgment is dated
16th May 1799, Murray contra Muir Mackenzie of Delvin. See page 2 ſ.
when,
i-C4 E L E CT I O N C A S E S.
when, in addition to the ſymptoms of nominality, &c. appear-
ing from the title-deeds, a proof, prout de jure, of the fact of no-
minality and confidence, was offered, and to conſiſt partly of the
parole-teſtimony of the different perſons who had been concern-
ed in the buſineſs. The Colonel obječted to this mean of proof,
as rendered incompetent by ſtatute 1696, c. 25, enacting, “ That
* no action of declarator of truſt ſhall be ſuſtained as to any deed
* of truſt made for hereafter, except upon a declaration or back-
‘ bond of truſt, lawfully ſubſcribed by the perſon alledged to be
“ the truſtee, and againſt whom, or his heirs or aſſignees, the de-
* clarator ſhall be intented, or unleſs the ſame be referred to the
‘ oath of party ſimpliciter.” The Court, however, after a hearing,
allowed the proof”. - -
Both Mr Elphinſtone and Sir John Macpherſon, as well as
the other gentlemen from Aberdeenſhire, were claimants when
objećted to ; and their enrolment was complained of within
the period of four kalendar months, which the ſtatute 16 Geo. II.
allows for bringing complaints to the Court of Seſſion. But the
late deciſion of the Houſe of Lords had operated ſo great a change
in the opinions of men upon this ſubječt, that it ſeemed as if the
meaning of that judgment, and of the opinions delivered at pro-
nouncing it, went the length of allowing the inveſtigation of the
real or fićtitious nature of every qualification, without any re-
gard to the time in which it was inſtituted. This opinion came
accordingly to be acted upon in almoſt every county in Scotland,
at the next general eleētion in 1790; and great numbers of free-
holders, who had ſtood upon the roll for many years, were at-
tacked, firſt with the truſt-oath, and afterwards with interroga-
tories fimilar to thoſe authoriſed by the Houſe of Lords to be put
to Sir John Macpherſon. When the perſon interrogated refuſed
to anſwer, he was expunged of courſe; where anſwers were gi-
ven, they were immediately judged of by the Freeholders; and
in this way, many gentlemen, who had for years ſtood upon the
roll without challenge, came to be ſtruck off.
* 22d December 1790, Ferrier contra Morehead. A ſimilar judgment was, at the
fame time, given in the caſe of Cheape contra Morehead, from the ſame county. •
THE
FREEHOLDERS QUALIFICATION. I C5
THE conſequence of theſe proceedings was, that innumerable
complaints came to the Court of Seſſion from different counties;
and the queſtion underwent a moſt thorough diſcuſſion, as well
in that Court as in the Houſe of Peers.
THose who ſupported the limitation of four kalendar months,
argued in this way: The words of the ſtatute 16th of the late King”,
are expreſs in limiting to the period contended for, the ſtating or
diſcuſſing of all objećtions of whatever kind, which may be
thought to ly againſt the right of any perſon to continue on the
roll. “And if any perſon ſhall be enrolled, whoſe title ſhall be
‘ thought liable to objećtion, it ſhall and may be lawful for any
Freeholder ſtanding upon the ſaid roll (whether ſuch Freehol-
der was preſent at the meeting or not), who apprehends that
ſuch perſon had not a right to be enrolled, to apply in like
manner by complaint to the Court of Seſſion, ſo as ſuch ap-
plication be made within four kalendar months after ſuch en-
rolment;’ ‘ and if no ſuch complaint ſhall be exhibited within
the time aforeſaid, the Freeholder enrolled ſhall ſtand and con-
tinue upon the roll, until an alteration of his circumſtances be
allowed by the Freeholders, at a ſubſequent Michaelmas meet-
ing, or meeting for election, as a ſufficient cauſe for ſtriking or
leaving him out of the roll.’ Theſe words make not the leaſt
diſtinétion as to the nature of the obječtion ; and if a complaint
on the head of nominal and fiótitious is competent under the ſta--
tute, within four months againſt any enrolment, (which cannot
be denied) it is no leſs clearly incompetent beyond that period;
the words being, “ ſo as ſuch application be made within four
* kalendar months after ſuch enrolment:’ So that whatever might
have been the ſubječt of complaint within the four months, if
not complained of is plainly excluded by the lapſe of that pe-
riod, and the Freeholder muſt remain till an alteration of his cir-
cumſtances takes place: That there is nothing in the ſtatute to
authoriſe any diſtinčtion between objećtions relative to the title-
deeds, and on other grounds, as will be ſtill more clear when the
words of this ſtatute are confidered in conjunction with thoſe of
the truſt-oath introduced not long before by 7 Geo. II, and, even
- gº though
&&GC&&4.6©&&
* 4.
too * E L E C T I O N C A S E S.
though ſuch a diſtinétion exiſted, it would not avail the oppoſite
argument, as the limitation of four months applies to every ſpe-
cies of complaint : That a contrary conſtruction would very muc
narrow the remedy of complaint, as in that view it would not
apply to the objection of minority, or againſt the fact of
apparency, or quoad the extent of valuation; none of theſe
things appearing from the title-deeds : That the ſame expreſſions
which give riſe to this conſtruction of the ſtatute 16 Geo. II.
occur in that of 12 Queen Anne, requiring a claimant to produce,
before enrolment, a ‘ right or title;’ but that here the mean-
ing is, evidence of a right or title; and even ſuppoſing the
ſtatute firſt mentioned, to mean the limitation as applicable only
to objećtions to the title-deeds, it would make no difference, as it
is juſt as much an obječtion to title-deeds, to alledge a tacit un-
derſtanding between the granter and receiver, as to found upon
a back bond, or other written evidence of truſt or confidence:
That the remedy of the truſt-oath, and that of ſtating and prov-
ing an objećtion, are in their own nature perfeótly ſeparate and
diſtinét, and no argument can be drawn from the perpetuity of
the one to the perpetuity of the other; the oath being a mere
teſt, like many other oaths which may be taken quandocumque,
and the other being always a ſubječt for litigation. Indeed,
ſuch a limitation is nothing more than what takes place in all the
ſhorter preſcriptions, where, though for a certain time every ſpe-
cies of evidence is competent, nothing remains after the lapſe of
the ſtatutory period, except the writ or oath of party. But if
the analogy of the truſt-oath were to be followed in this matter,
there could be no end of the objećtion of nominal and fićtitious;
not even a res judicata, or the long preſcription : That the ſta-
tutes of the 7 and 16 Geo. II. on this point, are quite diſtinét
and conſiſtent; the one introducing a teſt-Oath, as to which the
power of the freeholders is miniſterial, and the other relating to
judgments to be by them pronounced : And that, though it may
be ſaid, that the four months do not in every caſe afford abſo-
lute protećtion, for that a refuſal to take the truſt-oath will al-
ways forfeit enrolment; no concluſion againſt the argument can
be drawn from this circumſtance; becauſe, 1ſt, Such a forfeiture
takes
FREEHOLDERS QUALIFICATION. Io 7
takes place, vi ſtatuti, and not in conſequence of an objećtion
being proved: 2dly, The oath of truſt is not a proof, but a teſt;
and even allowing it to be a proof, it will not follow that a proof,
rout de jure, is competent ſo long as the oath may be tendered:
3dly, The ſtatutable limitation only reſpects obječtions which
may be matter of judgment to the freeholders, which the oath
of truſt never can : and 4thly, A refuſal to take the truſt-oath
when lawfully required is, in fact, an alteration of circum-
ſtances.
THE arguments on the other fide were to this purpoſe: That
the ſtatute 1681, which firſt brought the buſineſs of the Free-
holders into a regular ſyſtem, when it appointed objećtions to
be tried by Parliament, or, during its receſs, by the Court of
Seſſion, made no limitation as to the time of ſtating ſuch objec-
tions: That after the Union, when nominal and fićtitious votes
firſt appeared, the remedy of an oath of truſt and poſſeſſion was
adopted, firſt by 12 Queen Anne, and afterwards more effectually
by 7 Geo. II. ; but neither did theſe acts introduce any limitation
in point of time : So that unleſs it could be maintained (which
it cannot now be) that after this oath was introduced, it was
the only teſt by which the objećtion of nominal and fićtitious
could be legally proved, it muſt be admitted that it remained
ſtill competent to ſtate that objećtion, as well as every other, at
any diſtance of time after enrolment. It is therefore to be con-
ſidered, Whether any variation of the law was made with regard
to that ſpecies of objećtion, by ſtatute 16 Geo. II. It is thought
not. The words ‘right’ and “ title, and “circumſtances,’ which
occur in the clauſe of the act before quoted, as well as the ex-
preſſions, ‘ that right or title in reſpect of which he was enrolled,’
occurring in a ſubſequent clauſe, mean only obječtions made, or
complaints preferred, relative to the title-deeds, or inſtruments
required by law to enable one to get upon the roll; and by no
means to objećtions depending not upon the form, or even the va-
lidity of ſuch title-deeds or inſtruments, as ſufficient to give a
right to poſſeſs, but entirely upon matters of fact, ſuch as the
want of poſſeſſion, or nominal and fićtitious, which are clearly
- - P Il Ot
I o8 E L E CT I O N C A S E S.
not juris but fačii; and if ſo, theſe objećtions muſt either
be competent after the four months, or not at all: That the
word title, in the laſt paſſage of the oath of truſt introduced by
7 Geo. II. no doubt has a different meaning; but that can have
no effect upon its meaning in the ſubſequent ſtatute, which muſt
be gathered from other circumſtances: That if, as admitted, the
ſtatute 12 Queen Anne, in uſing the word title, means evidence
of title, it means title-deed; : That ſo far is the objection of nomi-
nal and fićtitious from being an objećtion to the title-deeds, that
it always ſuppoſes them to be regular, but that they create a right
to be exerciſed for behoof of the granter: That the ſpirit of the
ačt 16th of the late King is equally favourable to the diſ-
tinétion contended for ; becauſe, although four months is ſuf- .
ficient time for bringing forward any objections to title-deeds,
eſpecially as at Michaelmas-enrolments (by far the moſt fre-
quent) two months previous notice is neceſſary; the caſe is
far otherwiſe with the obječtion of nominal and fićtitious.
There may ſubſiſt between the granter and grantee a ſecret
underſtanding, that notwithſtanding the deeds of conveyance
in favour of the latter, the poſſeſſion ſhall be retained by the for-
mer; and yet this circumſtance may be kept a perfeót ſecret for
a much longer period than four months after the enrolment. Other
ſecret underſtandings, ſufficient, if known, to vitiate the freehold
qualification, may alſo be concealed for years. It is upon theſe
feelings or underſtandings alone, that the objection of nomi-
nai and fićtitious muſt always depend; from which it is ob-
vious, that this objećtion, though certainly the moſt important
that can be figured, is not liable to be diſcovered upon
the face of the titles, or from any thing produced by a claimant
at the time of his enrolment; and therefore, it is impoſſible to
ſuppoſe the ſtatute could mean to limit the ſtating of the objec-
tion to a preſcriptive term ſo evidently too ſhort: That the oath
of truſt and poſſeſſion has no reference to the holding, the valua-
tion, or any thing appearing on the titles; but it applies, Imo, to
poſſeſſion; 2do, to the queſtion, Whether the diſponee holds the
lands for his own or another's behoof, or is under any obligation
to rediſpone them ; and 3tio, to the queſtion, Whether the qua-
lification is nominal and fićtitious, the chief criterion of which
1S
FREEHOLDERS QUALIFICATION. icy
is now perfeótly well underſtood: That had the legiſlature
meant to confine the obječtion of want of poſſeſſion, or of nomi-
nal and fićtitious, to four months, they would not have allowed
the truſt-oath after that period; whereas it may be put at any
Michaelmas meeting, or meeting for election. By the late judg-
ment of the Houſe of Peers, too, it is made competent to eſta-
bliſh that objećtion prout de jure, and even by calling upon the
party to anſwer ſuch queſtions as may lead to a diſcovery: That
the argument drawn from the two different ſpecies of proof, is a
petitio principii, the queſtion being, not as to the poſſibility of a
diſtinčtion between the two different modes of proof, but if, in
fact, a diſtinétion exiſts ; and although the judgment alluded to
had no occaſion to touch upon the queſtion of four months; yet,
as it found both means of proof competent, ſo muſt the time of
adducing them, unleſs there appears ſome poſitive authority for
a diſtinétion: That had Sir John M'Pherſon's caſe occurred prior
to 16 Geo. II. the ſame deciſion muſt have been given ; and as
both modes of proof might then have been reſorted to quandocum-
que, it is impoſſible to maintain, that that ſtatute could repeal the
common law as to the time of trying the obječtion, without alſo re.
pealing the previous ſtatute as to the time of putting the truſt-oath:
That it is to no purpoſe to ſay, that when a perſon forfeits his
enrolment for having refuſed the truſt-oath, this happens viſa-
tuti; becauſe he is expunged for declining a teſt introduced as the
legal means of aſcertaining the fact of nominal and fićtitious,
and in that caſe, as well as when the objećtion is proved aliunde,
he is not ſuffered to remain till there be an alteration of his circum-
ſtances : That it is equally unavailing to argue, that the limita-
tion of four months only regards ſuch objećtions as are to be
matter of judgment, as there is no foundation in the ſtatute for
the diſtinétion; and to ſay that the refuſal of the oath muſt be
conſidered as an alteration of circumſtances, is abſurd in the ex-
treme ; for the refuſer ſtill continues in all reſpects as before : .
That it cannot be doubted that if a back-bond from a Freeholder
to his author were recovered, obliging him to hold the eſtate for
behoof of the granter, to vote as directed, and denude when re-
quired, this would authoriſe expunging him after the four months;
P 2 bu
T I O E L E CT I O N C A S E S.
but if ſo, a fimilar obligation, conſtituted without writing, and
appearing from circumſtances, ought to have the ſame effect.
This queſtion was firſt agitated in the caſe of Mr Pringle of
Fairnilee, who, after having ſtood for almoſt nine years upon the
roll of Freeholders in Roxburghſhire, was ſtruck off at the meet-
ing for eleētion, 24th July 1790, on account of his having re-
fuſed to anſwer interrogatories relative to his freehold qualifica-
cation. But, upon a petition and complaint, the Court of Seſſion
found the Freeholders had done wrong, and ordered Mr Pringle's
name to be reſtored to the place it formerly occupied in the roll*.
IN the following ſeſſion, however, the queſtion having again
undergone a very ample diſcuſſion, a contrary judgment was
givent.
Both Colonel Pringle's caſe, and that of Mr Milne, were car-
ried by appeal to the Houſe of Lords, where the judgment of the
Court of Seſſion in the former caſe was affirmed f, and in the
latter it was reverſed || ; ſo that here are two judgments in the laſt
reſort, finding the lapſe of four months a bar to all other means
of inveſtigating the obječtion of nominal and fiétitious than the
oath appointed by ſtatute 7 of Geo. II. The point may there-
fore be confidered as fixed.
THE 7 Geo. II, § 3. enaëts, That ‘ in caſe any perſon ſhall pre-
* ſume wilfully and falſely to ſwear and ſubſcribe the ſaid oath,
* 8th December 1790, Pringle of Fairnilee contra Freeholders of Roxburghſhire. The
like deciſion was pronounced, on the ſame day, upon complaints by Colonel Robert Prin-
gle and various other gentlemen from the ſame county; and judgments to that purpoſe
were afterwards given in many caſes from the ſhires of Stirling, Renfrew, Orkney, &c.
+ 31ſt May 1791, Mr Alexander Milne contra Freeholders of Aberdeenſhire; and fi-
milar judgments were given in many other caſes. In that of Mr Ballingall from Stir-
lingſhire (referred to on p. 3.) the Court, 3d March 1791, allowed a proof (though
after the four months) that the Freeholder was out of poſſeſſion of the ſubječts on which
he had been enrolled. This proof was taken; but the merits of the election having been
previouſly determined by a committee of the Houſe of Commons, the Court had no op-
portunity of giving any judgment upon the import of the proof.
f 5th March 1792. | 1793.
* and
FREEHOLDERS QUALIFICATION. I I I
‘ and ſhall be thereof lawfully convićted, he ſhall incur the pains
‘ and puniſhment of perjury, and be proſecuted for the ſame ac-
‘cording to the laws and forms in uſe in Scotland.’
THE eſſence of the crime of perjury confiſts in this, That the
perſon charged with it knew, at the time of making oath, that he
was ſwearing to a falſehood. Before, therefore, any perſon can be
convićted of having falſely taken the oath of truſt and poſſeſſion, it
muſt be eſtabliſhed, not merely that his qualification is nominal
and fićtitious, or is otherwiſe different from the deſcription given of
it in the oath, but that he, at the time of ſwearing, knew and be-
lieved it të be ſuch. It is indeed, as has been already ſhown,
an indiſpenſable ingredient in the objećtion of nominal and fićti-
tious, that the perſon holding the qualification had or ought to.
have had a bad opinion of his title himſelf. .
FROM this circumſtance, and confidering how much men.
have differed as to what ought to be accounted a nominal,
and what an independent vote, it may be thought a matter
of great difficulty, if not altogether impoſſible, to bring home a
charge of perjury againſt thoſe who have taken this oath; for
that, although the qualification ſworn to does in reality fall un-
der the deſcription reprobated by the oath, or perhaps has been
found ſuch by a court of law, ſtill the pannel might, from ig-
norance or prejudice, have had another and a better opinion of
it, and was therefore in optima fide to take the oath. ‘ Perjury,
ſays Sir George Mackenzie, ‘ is defined by lawyers, to be a Lie,
‘ affirmed judicially upon oath ; But becauſe it is not preſu-
‘mable, that any perſon would both be ſo mean as to lie, and
* ſo wicked as to call GOD to be a witneſs thereto ; Therefore
‘ lawyers have very juſtly delivered in a Brocard, that perjury is
* not committed without fraud, Interpretatio facienda eſ ut evitetur
“ perjurium ; and from this principle they have deduced, that he
* who ſwears that which is falſe, believing it to be true, is not.
* to be puniſhed as a perjurer”.’ - \º
* Crim. Treat, tit. 29. § 1.
No T.
M I 2 * ELECTION CAS E.S.
Not to mention, however, that ſuch a conſtruction of the oath
of truſt and poſſeſſion would operate as a repeal of the ſtatute ap-
pointing it, the objećtion is ſufficiently obviated by the manner in
which proſecutions for perjury, as well as for every other crime, are
condućted in the High Court of Juſticiary, in which alone any pro-
ſeecution under the ſtatute 7 Geo. II. can proceed. Every criminal
libel, whether in the form of indićtment, or of criminal letters (or
ſummons) is drawn, as is well known, in the form of a regular
fyllogiſm, of which the major propoſition contains an enuncia-
tion of the law, the crime and the puniſhment; while the minor
propoſition charges the pannel's guilt. In doing ſo, however, it is
by no means ſufficient to make the charge in general terms, as
that he committed the crime (robbery, for inſtance, or murder
on ſuch a day, at ſuch a place. The proſecutor muſt alſo ſet
forth the ſpecial circumſtances attending the fact committed,
and from a proof of which the pannels’ guilt is to be inferred.
How far the libel is properly ſtated, and in the regular ſyllogiſ-
tick form ; in other words, whether the premiſſes are ſufficient
(or, in the ſtile of the bar, relevant) to infer the concluſion, it
is the province of the judges alone to determine. The jury
have to try the iſſue, whether the libel, or rather the minor pro-
poſition of the libel, is true. This moſt important rule can-
not however be followed out otherwiſe than by a full ſpecifica-
tion of circumſtances inferring the crime, in the minor propoſi-
tion of the libel; for it is quite plain that were a general charge
admitted, and ſent in thoſe terms to the jury, they would be
veſted with the power of judging both as to the law and the fact;
a power which the law and conſtitution of this country has de-
nied them. - +
AGREEABLY to what has been ſtated, the Court of Juſticiary, in
all proſecutions for perjury which have occurred under the ſtatute
of the 7th of the late King, have required the proſecutor to ſtate,
in the minor propoſition of the indićtment, not merely that the
pannel knew that the title ſworn to was nominal and fićtitious, or
was otherwiſe at variance with the deſcription in the oath of truſt
and poſſeſſion; but alſo his knowledge of ſuch ſpecial facts and cir-
- - cumſtances
FREEHOLDERS - QUALIFICATION. I I 3
cumſtances attending the ſtate of his titles, as were plainly and pal-
pably inconſiſtent with the terms of the oath. In this way the
court and jury are confined each to its legal and conſtitutional
province; the former judging of the ſufficiency of the facts
charged to make out a caſe of perjury under the ſtatute, and
the latter attending ſolely to the evidence brought in ſupport of
thoſe facts. X
THe firſt inſtance of a proſecution upon this ſtatute, was one
at the inſtance of Thomas Murdoch of Cumlodden, with con-
courſe of Duncan Forbes, Eſq; his Majeſty’s Advocate, againſt
Robert Cannon. The libel, in that caſe, after narrating the ſta-
tute, qualifies the minor propoſition thus: “In ſo far as the ſaid:
* Robert Cannon did, upon the 23d day of May 1734 years,
or one or other of the days of the ſaid month, within the
tolbooth of Kirkcudbright, where the Freeholders of the ſtew-
artry of Kirkcudbright were met in order to eleēt their re-
preſentative to the enſuing parliament, wilfully and falſely
ſwear and declare, in the preſence of God, That the lands in
virtue of which he claimed right to vote in the ſaid election,
being the lands of Killochy, were a&tually in his poſſeſſion,
and did really and truly belong to him, and was his own pro-
per eſtate, and that it was the truth as he ſhould anſwer to
God; when, at the ſame time, he had many years before ſold
and conveyed all right and title he had to the foreſaid lands, in
favours of James Gordon of Troquhain; and the ſaid James
Gordon had accordingly entered to the poſſeſſion of the fore-
ſaid lands, by himſelf, and others deriving right from him; and
was, upon the foreſaid 23d day of May, and of before, in the
aćtual poſſeſſion of the foreſaid lands, as his own proper eſtate; ,
which being found proven, &c.’ There was no opportunity of
judging upon the relevancy of this libel, as the pannel did not.
appear, and ſentence of fugitation paſſed againſt him.
The doćtrine which has been laid down was, however, amply:
confirmed, and well illuſtrated by the judgments of the Court, in
certain proſecutions which were brought in 1784 at the inſtance
of
II.4. E L ECTION CAS E.S.
of Mr Penroſe-Cumming of Altyre, with concurrence of his Ma-
jeſty's Advocate, againſt ſeveral perſons in the county of Elgin
and Forres. One of theſe perſons was Mr John Lawſon, againſt
whom the minor propoſition of the indićtment, after ſtating that
the oath of truſt and poſſeſſion had been tendered to him by Mr
Cumming, at the meeting of eleētion 15th April 1784, bears,
That ‘ he, the ſaid John Lawſon, did, then and there, according-
‘ly ſwear and ſubſcribe the ſame, although he well knew, that
* he had no right or title to the foreſaid parts of the lands of
* Coltfield and others, and that the ſame did not belong to him,
* nor were his own proper eſtate, and that his pretended right
* thereto, was nominal and fićtitious, created for the purpoſe of
* enabling him to vote for a member of parliament; and al-
‘ though he alſo well knew, that the ſaid lands were, neither de
“jure, nor de fačfo, in his poſſeſſion; but, on the contrary, that the
“ ſaid lands and others, or at leaſt parts thereof, did in property
‘ belong to Colin Moriſon, now, or lately reſiding at Rome, or
“ had by him been ſold or conveyed to Peter Roſe Watſon of
* Coltfield, at or before the time of the election aforeſaid, who,
* one or other of them, ſtood then infeft in the ſaid lands, or
“ parts thereof, and in the actual poſſeſſion thereof, by drawing
“ the rents, mails, and duties; and that the ſaid lands did belong
* in ſuperiority to James, Earl Fife, of the kingdom of Ireland,
* who was infeft, and in the actual poſſeſſion thereof, by uplift-
* ing the duties and caſualties from the ſaid Colin Moriſon, or
* Peter Roſe Watſon, the vaſſal, granting diſpoſitions, charters,
* or other rights, to the ſaid vaſſals, and acting, in all other re-
* ſpects, as ſole ſuperior of the ſaid lands, without regard to the
* pretended right in the perſon of the ſaid John Lawſon.” On
adviſing informations upon the relevancy of this indićtment, the
Court pronounced * the following interlocutor: ‘The Lord Juſ.
“ tice Clerk and Lords Commiſſioners of Juſticiary, having con-
* ſidered the criminal libel raiſed and purſued at the inſtance
* of Alexander Penroſe-Cumming of Altyre, Eſq; with concourſe
of Ilay Campbell, Eſq; his Majeſty's Advocate, for his Majeſty's
* 27th June 1785. o
‘ intereſt,
FREEHOLDERS QUALIFICATION. II 5
intereſt, againſt John Lawſon of Weſtertoun, pannel, with the
informations on the relevancy thereof before recorded; they
find the libel, in ſo far as it charges, that the pannel, at the time
and upon the occaſion therein mentioned, did ſwear and ſub-
ſcribe the oath required by the act of the 7th of the late King,
although he then well knew that he had no right or title to the
lands upon which he then claimed to vote, and did accordingly
vote; and that the ſame did not belong to him, nor were his own
proper eſtate; and although he alſo well knew, that the ſaid
lands were neither de jure, nor defačío, in his poſſeſſion; but, on
the contrary, that the ſaid lands, both property and ſuperiority,
did belong to, and were in the actual poſſeſſion of the ſeveral
perſons mentioned in the libel, relevant to infer the pains of
law ; and remit the pannel, with the libel as ſo found relevant,
to the knowledge of an aſſize: Find, that the other article of
the libel, which charges, that the right upon which the pannel
claimed and voted was nominal and fiótitious, created for the
purpoſe of enabling him to vote for a member of parliament, is
not ſo qualified as to import a relevant charge of perjury, up-
on which the pannel may or can be remitted to the know-
ledge of an aſſize; and therefore diſmiſs the libel, ſo far as re-
ſpects that part of the charge.’ An interlocutor, in the very
fame terms, was afterwards pronounced in another proſecution
againſt the Rev. Mr William Leſlie, miniſter of the pariſhes of
St Andrew's and Longbride f. About the ſame time, a fimilar
interlocutor was pronounced in the caſe of a Mr Adamſon.
&&Ç&&&©&&6.&Ç&&&6&6&&6&
THE trial of Mr Lawſon having proceeded, the jury brought
in a verdićt of acquittal; on confidering which, the Court found
the proſecutor liable to him in expences, and allowed an account
thereof to be given in.
IN the caſe of Mr Leſlie, however, a different courſe was fol-
lowed; for the laſt branch of the interlocutor of relevancy hav-
ing found the libel, ſo far as it contained a general charge of no-
minal and fićtitious, &c. not ſufficiently qualified to go to a jury,
# 25th November 1785.
Q_ and
T 16 E L E CTION CAS E. S.
:* *
$6.&66.6&$6&6&{&&&©&&6
and as the other part of the charge had failed in Mr Lawſon's
caſe, the counſel for the proſecution moved the Court to deſert
the diet pro loco et tempore, which was done accordingly.
AFTER this, new criminal letters were raiſed and executed, again
charging Mr Leſlie with having committed perjury, in falſely ta-
king the oath, not only at the meeting for election 15th April 1784,
but alſo at the Michaelmas head court, 7th Oétober 1785. In
theſe new criminal letters, the proſecutor, in order to obviate the
objećtion ſuſtained againſt the former, that the charge of nomi-
nal and fićtitious was not properly qualified, inſerted a particu-
lar detail of circumſtances attending the qualification of the
pannel, from which it was to be held nominal and fićtitious, and
the pannel to be found guilty of perjury for ſwearing the con-
trary. As it is the only example of the kind upon record, the
chain of circumſtances condeſcended on in the libel ſhall be inſert-
ed. They are in theſe words: “Although at the time when the ſaid
* William Leſlie ſwore and ſubſcribed the ſaid two oaths reſpec-
tively, he well knew that the foreſaid parts of the lands of Kin-
neddar, for which he claimed a right to vote in the election of
a member to ſerve in Parliament for the county of Elgin and
Forres, were not actually in his poſſeſſion, and did not really
and truly belong to him, and were not his own proper eſtate;
and that his title to the ſaid lands and eſtate was nominal and
fićtitious, created or reſerved in him, in order to enable him to
vote for a member to ſerve in Parliament; and that the ſame
was not a true and real eſtate in him, for his own uſe or bene-
fit, and for the uſe of no other perſon whatſoever: In ſo far as, a
proceſs of ranking and ſale having been brought before the
Lords of Council and Seſſion, of the land-eſtate belonging to
James Brodie Eſq; of Brodie, comprehending the ſaid lands of
Kinneddar, a ſequeſtration of the ſaid eſtate was awarded on
the 11th July 1771, and William Dunbar writer to the fignet
was appointed factor thereon, who accordingly entered into
poſſeſſion, and colle&ted the whole rents of the ſaid eſtate, in-
cluding the lands of Kinneddar, for the years 1771, 1772, and
1773; and, upon the 5th day of Auguſt 1772, decree of certi-
fication was pronounced in the ſaid proceſs of ranking and
ſale:
FREEHOLDERS QUALIFICATION I 17
ſale: Notwithſtanding which proceedings, a charter was ex-
pede under the Great Seal, on the 6th Auguſt 1772, of the
whole lands under ſale, comprehending the ſaid lands of
Kinneddar, in favour of James Brodie, Eſq; of Brodie, who,
upon the 25th Auguſt 1773, executed a diſpoſition of the
ſaid lands of Kinneddar and others, in favour of William
Roſe, factor to James Earl Fife, to be holden feu of the diſ-
poner himſelf, for payment of certain trifling feu-duties: And,
upon the ſaid 25th Auguſt 1773, the ſaid James Brodie ex-
ecuted a diſpoſition, conveying the ſuperiority of the ſaid lands
of Kinneddar, and others, in wadſet, to the Honourable Arthur
Duff of Ortown, redeemable for payment of a ſmall ſum of mo-
ney, and burdened with the feu-right in favour of the ſaid Wil-
liam Roſe ; which feu-diſpoſition and wadſet of ſuperiority were
not real tranſactions, ſuch as the titles ex facie imported, but were
deviſed and executed, in order to create nominal and fićtitious
qualifications in the county of Elgin and Forres, and for no other
purpoſe whatever; and, in proſecution of this ſcheme, the ſaid
Arthur Duff, upon the 30th day of September 1773, executed
a diſpoſition of certain parts of the lands of Kinneddar above-
mentioned, to the ſaid William Leſlie, under the burden of
the feu right in favour of the ſaid William Roſe, and redeem-
able by the ſaid James Brodie, at the term of Whitſunday
1775, on payment of L. 240 Scots; upon which charter from
the Crown, conveyance thereof in favour of Arthur Duff, and
diſpoſition in favour of William Leſlie, infeftment followed in
the perſon of the ſaid William Leſlie : But, although the ſaid diſ.
poſition was conceived in the ſtyle and form of a proper wadſet ;
yet, in reality, there was no loan of money made, nor intended to
be made, by the ſaid William Leſlie to the ſaid Arthur Duff; the
ſole purpoſe which the parties had in view being to create a no-
minal and fićtitious freehold qualification in the ſaid county of
Elgin and Forres, in order to ſupport the intereſt of James Earl
Fife, who accordingly paid the whole expence attending this
tranſa&tion: And the ſaid William Leſlie was ſo ſenſible of the
right which appeared upon the face of his titles being altoge-
ther nominal and fićtitious, that he neither pretended to aſ-
ſume poſſeſſion, nor infiſted that the ſaid lands ſhould be ſtruck
- Q_2 * out
II 8 E L E C T I O N C A S E S.
out of the judicial ſale above-mentioned, as belonging, either
in property or ſuperiority, to the ſaid William Leſlie ; and the
proceedings in the judicial ſale went on without oppoſition:
And by the interlocutor of the Court, authorifing the ſale, the
ſaid lands of Kinneddar were declared to belong to the ſaid
James Brodie, and to be holden immediately of the Crown.
And thereafter, on the 14th day of July 1774, the ſaid lands of
Kinneddar, and others, were purchaſed by the ſaid William
Roſe, for behoof of the ſaid James Earl Fife ; and by the de-
cree of ſale, the Lords of Council and Seſſion declared the ſaid
James Earl Fife purchaſer, and his foreſaids, and the lands and
others purchaſed by him, to be exonered and diſcharged of all
debts and deeds of the ſaid James Brodie, common debtor, and
his predeceſſors, from whom he, or they, had or might have
right: And by virtue of this decreet of ſale, the ſaid James
Earl Fife did, upon the 11th day of December 1775, expede a
charter under the great ſeal, of the ſaid lands of Kinneddar, to
be holden by him immediately of the Crown ; and farther,
the ſaid James Earl Fife having ſold the ſaid lands of Kinned-
dar to Alexander Brander, merchant in London, executed a
diſpoſition thereof, bearing date 12th May 1775, in favour of
the ſaid Alexander Brander, to be holden by him of the ſaid
Earl Fife, for payment of L. 1 Sterling yearly of feu-duty;
upon which diſpoſition the ſaid Alexander Brander was duly
infeft, upon the 12th day of July 1775; and in conſequence
of this purchaſe, the ſaid Alexander Brander did accordingly
enter into poſſeſſion of the ſaid lands, and has poſſeſſed the
ſame ever fince, as vaſſal of the ſaid Earl Fife, who held the
ſame as ſuperior immediately under the Crown, by uplifting
the feu-duty, and exerciſing the other rights of ſuperiority;
whereas the ſaid William Leſlie did at no time poſſeſs the ſaid
lands, in any ſhape whatever; nor did take any meaſure for
aſſerting his own pretended right to the ſame, either in proper-
ty or ſuperiority, or for challenging the rights thereto, in the
perſons of the ſaid Earl Fife, and of the ſaid Alexander Bran-
der, which were totally inconſiſtent with his nominal and fic-
titious title, although he was all along in the knowledge of the
rights ſubſiſting in the perſon of the ſaid Earl Fife, and Alex-
.. * ander
FREEHOLDERS QUALIFCATION. II 9
‘ ander Brander, and of the poſſeſſion held by them reſpectively,
* in conſequence of the ſaid rights: Whereby the ſaid William
* Leſlie has been guilty of wilfully and falſely ſwearing the ſaid
‘ oaths reſpectively, and has thereby incurred the pains of
“ perjury.’
INFORMATIONs were again ordered upon the relevancy of
this indićtment, and were accordingly given in, but were never
adviſed”. .
IN a late proſecution for the ſame offence, under the ſtatute,
and which is ſtill depending, a ſpecification ſomewhat different
was made in the indićtment, in order to qualify that the vote
ſworn to was nominal and confidential. The trial came on 21ſt
March 1796, when, after a long debate, the Court ordered infor-
mations upon the relevancy. Theſe, however, have not yet
been adviſed; and the cauſe being ſtill undetermined, it would
be indelicate to give even an abridgement of the pleadings. Be-
ſides, there is a probability that the trial, when finiſhed, will be
publiſhed. It is at the inſtance of Patrick Duff of Carnoufie, Eſq;
with concourſe of his Majeſty's Advocate, againſt Lieutenant
James Fyfe. -
NoNE of theſe proſecutions, it will be obſerved, have proceed-
ed at the ſole inſtance of his Majeſty's Advocate, as it has been
the uniform practice of thoſe who have held that high office not
to interfere in ſuch queſtions. The proſecutions have always been
brought by private parties with concourſe of the Lord Advocate;
and as every private party muſt ſhow an intereſt in the iſſue, it
has been made a queſtion what intereſt is ſufficient to authoriſe
a private party to proſecute for perjury under the ſtatute 7 Geo. II.?
In the caſe of Mr Leſlie, already mentioned, there were three cri-
* On the 2d July 1787 the Court, on motion of the proſecutor’s counſel, deſerted the
diet againſt the pannel, ſimpliciter. Criminal letters were raiſed once more in nearly the
ſame terms, againſt the pannel, who now pleaded. That the diet having been formerly
de erted ſimpliciter, he could not be tried of new whatever might have been the caſe, if
the diet had only been deſerted, pro loco et tempore : And on adviſing a debate and infor-
mations upon this point, the Court Suſtained the objećtion offered for the pannel in bar
* of procedure; and therefore diſmiſſed the libel and pannel from the bar,’ 2 1ſt Janu-
ary 1788. te
minal
§ 2 O E L E CTION CAS E. S.
minal letters raiſed ſucceſſively. The firſt was caſt for want of a pro-
per title, in the private proſecutor. It was obječted, That the only
title ſpecified in the libel, in the perſon of the proſecutor, was that
of his having been a candidate to repreſent the county of Elgin and
Forres at the election; which circumſtance, it was pleaded, did
not, perſe, give him a ſufficient title to inſiſt in a criminal pro-
ſecution, for any offence committed in the courſe of that eleētion;
more eſpecially as he did not even ſtate, in the libel, that the
pannel had voted againſt him. Informations were ordered upon
the import of this obječtion, and the following interlocutor was
pronounced * “In reſpect the proſecutor, in his criminal letters,
* ſets forth no other title or intereſt in him to purſue, except
“ that he was a candidate at the election of a member of parlia-
* ment for the County at the time libelled, without ſetting forth
* that the pannel voted againſt him in ſaid election: Find the
* proſecutor has thereby failed to qualifiy ſuch an intereſt as is
* neceſſary to ſupport his title as candidate ; and therefore, diſ-
* miſs the proſecution founded on theſe criminal letters, and the
* pannel from the barf."
Upon this, new criminal letters were raiſed, libelling upon the
proſecutor's title to inſiſt, not only as candidate, but as a Free-
holder ſtanding upon the roll of the county; and on hearing a
debate, the Courti ‘ ſuſtained the proſecutor's title to inſiſt in
* this proſecution; and ordained the pannel to plead to the libel.
It has been already obſerved that the third libel in this caſe
charged an additional act of perjury againſt the pannel, || ſaid to
have been committed at Michaelmas meeting 1785; and as at this
meeting the proſecutor neither was nor could be a candidate, his
only title to proſecute was in the chara&ter of a Freeholder ſtand-
ing upon the roll. It was, however, obječted that a Freeholder, qua
ſuch, had no legal right to inſiſt in a criminal proſecution a-
* 29th January 178 5.
+ This obječtion did not apply to the caſe of Lawſon, as the libel there ſtated both
that the proſecutor had been a candidate at the meeting for election, and that the pan-
nel had voted againſt him. In the caſe of Duff contra Fyfe, already noticed, the title is
libelled in the ſame terms as in Lawſon’s caſe. -
it 15th Aug. 1785. | See p. 1 16. w
- gainſt
FREEHOLDERS QUALIFICATION. I 2 I
gainſt another Freeholder, for the crime of perjury, or any offence
committed in courſe of a Michaelmas head court, or meeting .
for election.
INFORMATIONs having been ordered upon this point, as well as .
upon the relevancy of the charge itſelf, the proſecutor endeavoured
t
6
- -
.46G&GG&&6©6,&
o ſupport his title by this reaſoning : “ The law of Scotland, it
is true, only allows of criminal proſecutions at the inſtance of the
public proſecutor, or of a private party injured, with concourſe of
the public proſecutor. In order, however, to enable a private
party to proſecute, it is by no means neceſſary that he ſhould
qualify a patrimonial injury, or pecuniary loſs, ariſing to him
from the commiſſion of that crime, which he inſiſts to bring
forward to trial and puniſhment. For example, no lawyer will
pretend to diſpute, that a ſon has a good legal title to proſecute,
at his own inſtance, for the murder of his father, and that a
huſband may proſecute for adultery with his wife; although in
neither of theſe caſes can it be ſaid, that the proſecutor has
ſuſtained any patrimonial injury; and in the former caſe, the
ſon may be even a conſiderable gainer in point of patrimony,
as an opulent inheritance may have devolved upon him by the
death of his father.
* THAT the proſecutor, in the preſent caſe, and every real
freeholder ſtanding upon the roll for the county of Elgin and
Forres, was directly and materially injured, by the pannel's
ſwearing falſely the oath preſcribed by the act 7 Geo. II. (if he
did ſwear it falſely) cannot admit of a doubt; as the neceſſary
effect of ſuch perjury was, to continue upon the roll of free-
holders a perſon who ought to have been expunged, and there-
by to affect the rights and privileges of thoſe freeholders who
were entitled to take the oath, and to deprive them of
that ſhare, which of ºright belonged to them in the eleētion
of a member for the county, and in other matters which are
delegated to the freeholders; and being ſo injured by the pan-
nel's guilt, a right to proſecute, with concurrence of his Ma-
jeſty's Advocate, neceſſarily follows.’
It has been already mentioned, that theſe informations never
received the opinion of the Court.
CHAP.
¥ 22 E L E CTION CAS E.S.
C. H. A. P. III.
Of certain Circumstances, independent of the Title, which diſable per-
sons from being admitted upon the Freeholders Roll, or for voting
in the Election of Commiſſioners from Sbirer.
MONG theſe diſabilities Mr Wight claſſes that of being the
eldeſt ſon of a Peer; and, at p. 269, lays it down that no
ſuch perſon, although infeft in lands holding of the Crown, of
the extent or valuation preſcribed by law, is capable of eleēting,
or of being elected, nor conſequently of being admitted to the
roll. This point has lately undergone a moſt uncommonly full
diſcuſſion, and judgment ultimately given agreeably to what is
laid down by Mr Wight; ſo that all eldeſt ſons of Peers are for
ever excluded from the rolls of freeholders for counties*.
Except this fingle caſe, there does not occur, either in the de-
cifions of the Court, or in the ſtatutes paſſed ſince the date
of Mr Wight's Inquiry, any thing rendering it neceſſary to add
to what he has already detailed under this chapter.
* 24th January 1792, Lord Daer contra Freeholders of Wigton: Affirmed in the
Houſe of Lords, 26th March 1793. This caſe is ſo fully and accurately reported in
the Fac. Col. (Append. to vol. 8th No 3) that it does not appear neceſſary to give even
the outlines of the arguments, which were ſtated on both ſides with conſummate ability.
CHAP.
ALTERATION OF CIRCUMSTANCES. I 23
C H A P. IV.
Of the Alterations in the Circumstances of a Freeholder ſufficient to
Strike him off the Roll.
HE ſtatute 16 Geo. II, ſo often mentioned, defines an alteration
in the circumſtances of a Freeholder to be “the alteration of
* that right or title, in reſpect of which he was enrolled.” There
may therefore be often a great alteration in a Freeholder's real cir-
cumſtances, or the ſtate of his property, and yet no alteration in a
olitical view, of ſuch as will affect his right of continuing upon
the roll. If any general rule could be attempted to be laid down
agreeably to the definition of the ſtatute, it would perhaps be
this, That whatever alienations or conveyances may at any time
have been made by a Freeholder, he cannot be ſtruck off, if he
ſtill retains, and has all along retained, in his perſon, a right
which, if originally claimed on, would have authoriſed his enrol- g : , , ,
Iſle Int,
AN effectual alteration of circumſtances may happen, in as
many different ways as there are modes of loſing the qualifica-
tion which at firſt gave right to be enrolled. Thus, it may ariſe
from a partial ſale of the lands; from a back-bond granted to
the diſponer; from giving up poſſeſſion of the property; or
from the evićtion of it by a third party. The caſe of Mr.
R Erſkine-
I 24. E L E C T I O N C A S E S.
Erſkine-Knight* ſuggeſts another mode of loſing the qualifica-
tion. From the pleadings there, it appears, that a huſband en-
rolled upon his wife's eſtate ſuffers a political change of circum-
ſtances by her death, though in that particular caſe he was re-or-
dered upon the roll, having produced, with his complaint, evi-
dence of a right to the courteſy.
MR Wight, at p. 28o, puts the caſe of a perſon taking out a
new charter of reſignation, and being infeft upon it, with a view
to family-ſettlements ; and he gives it as his opinion, that an ob-
jećtion founded upon ſuch a tranſaction as an alteration of cir-
cumſtances, ought not to be liſtened to, even though made
between the period of reſigning the eſtate in the hands of the
Crown, and the infeftment upon the new charter. The Court
lately gave judgment againſt ſuch an obječlion in the following
caſe, which bears a ſtrong analogy to the one put by Mr
Wight. -
LoRD Alva had, for ſome years prior to 1765, ſtood upon the
roll of Freeholders in Stirlingſhire. His Lordſhip, in that year,
in order to give a qualification to a friend, expede a crown-char-
ter of part of the ſame lands, in favour of that perſon in liferent,
and of himſelf, his heirs and affignees in fee. On this charter
infeftment followed; and the liferenter accordingly entered and
continued upon the roll till 1782, when he executed a renuncia-
tion, which immediately went upon record. Before this time,
his Lordſhip had ſold the eſtate of Alva; and, having no right
to continue a Freeholder in reſpect of it, he claimed enrolment,
at the eleētion 1790, upon the ſuperiority contained in the
charter 1765; but he founded upon his previous titles, (in virtue
of which he had ſtood enrolled for the whole) viz. charter in fa-
vour of his father, conveyance from him, and ſafine on both.
It was obječted, That, by the refignation and new inveſtiture
1765, the former titles were completely extinguiſhed and done
away, ſo as to render the new charter his only title to the lands
in queſtion, and conſequently the only one upon which he could
* See page 8. lai
Cialſº
ALTERATION OF CIRCUMSTANCES. I 25
claim to be enrolled. The Freeholders having ſuſtained this
obječtion, Lord Alva complained to the Court of Seſſion. It
ſeemed to be admitted, that, had no infeftment followed up-
on the reſignation 1765, that reſignation could not have the
effect of extinguiſhing the prior inveſtiture, as it is beyond
queſtion clear, that in every caſe the reſigner cannot poſſibly
be diveſted, till he in whoſe favour the reſignation is made
be inveſted. But infeftment had followed in this caſe, as
was neceſſary to complete the right of liferent. Still, however,
the fee, and the ſubſtantial right of property, remained in Lord
Alva ; and the moment that the liferent was renounced, the
right of property, all along veſted in his Lordſhip, was freed
from any burden whatever, juſt as it had been at the period of his
original enrolment; ſo that, eſtimating his titles at that time,
and at that of his laſt claim, there was not the ſmalleſt alteration
in his circumſtances. Had the new charter been taken for the
purpoſe of family-ſettlements (as in the caſe put by Mr Wight)
without doubt, the radical right ſtill remaining where it was,
there could be no alteration of circumſtances, even though ſafine
had followed; and, what is ſtill a ſtronger caſe, if both the
liferenter and fiar had claimed within a year after the new infeft-
ment, the former founding upon it, and the latter upon the titles
1757, no enrolment of either could have taken place. It has
been found, that an apparent heir is entitled to be enrolled, qua
ſuch, notwithſtanding his having made up titles ; although
there, as in the preſent caſe, it might with equal plauſibility be
maintained, that the prior title (that of apparency) was ſuper-
ſeded and ſopited by the poſterior, viz. the feudal title in the per-
ſon of the heir.
Such was the argument for Lord Alva. It was anſwered,
That the inveſtiture 1765 is the ſame in form with that which a
purchaſer from Lord Alva would have adopted, and which
would confeſſedly have had the effect of ſopiting, in the perſon
of the ſeller, the former titles: That although, from the circum-
ſtance of the reſignation in this caſe being in favour of the ſeller
himſelf, his radical right to the property is not in any ſhape af-
feóted or impaired by the operation; ſtill the titles under which
- R 2 he
126 E L E C T I O N C A S E S. •
he poſſeſſes are changed, and the poſſeſſion muſt be attributed,
not to the ancient titles, of which he is diveſted by the reſigna- .
tion, but to the new charter and infeftment, by which he is re-
inveſted; and that, as he can be enrolled only on the charter and
ſafine under which he poſſeſſes, the original charter cannot af-
ford him any title of enrolment: That the caſe of apparent-heirs
is not parallel, as law gives them the privilege of enrolment, not
becauſe they are in a ſtate of apparency, but becauſe it appeared
reaſonable that they, upon their predeceſſor's death, ſhould have
the ſame right to vote which their predeceſſors had, although
they have not completed feudal titles to the land; and that the
heir did not demand to be enrolled, and to vote, in vir-
tue of the right on which infeftment had been taken, but in virtue
of the right which had been in his predeceſſor, and was now
transferred to him by his death. The Court ordained Lord
Alva to be enrolled ; and found his Lordſhip entitled to ex-
pences *. - - - **
The next caſe ſtated by Mr Wight, is that of a conveyance by
a father to a ſon, who takes a baſe infeftment, but grants an
obligation not to execute the procuratory of reſignation, nor to
take any other ſtep for diveſting his father of the ſuperiority du-
ring his life, and records the obligation in the regiſter of ſafines.
He gives an inſtancet of ſuch a tranſaction being found ſuffici-
cient to preſerve the father's freehold qualification, and to infer
no legal alteration of circumſtances. He mentions a caſe very
ſimilar, that of Murray of Philliphaugh from Selkirkſhireſ ; and
the following caſe differs from the one put by Mr Wight only in
this, that the tranſaction took place not between father and ſon,
but between ſtrangers.
ON the 7th Auguſt 1788, Mr Joſeph Williamſon ſold to the
Duke of Athole the eſtate of Dungarthill, upon which he had
previouſly been enrolled as a Freeholder in the county of Perth.
* 8th December 1790, Hon. James Erſkine contra Graham of Gartmore.
† At p. 281. i Page. 250, .
- NMr
ALTERATION OF CIRCUMSTANCES. 127
Mr Williamſon propoſed that he ſhould retain his qualification,
which (though not reſerved in the minute of ſale, nor in the arti-
cles of roup to which that minute was ſubjoined) was agreed to by
his Grace, by letter 18th Auguſt 1788. But the agents for the
parties having diſagreed as to the mode of carrying the tranſac-
tion into effect, they adviſed with a counſel of great eminence in
this branch of the law, who recommended the following plan,
viz. That Mr Williamſon ſhould grant a diſpoſition of the lands
to the Duke, ex facie abſolute, and containing procuratory of re-
ſignation, precept of ſafine, and all other uſual clauſes: That
the Duke ſhould take infeftment on the precept, and, on the o-
ther hand, ſhould grant an obligation, binding himſelf, his heirs.
and ſucceſſors, not to take a charter of confirmation on the baſe.
infeftment, nor execute the procuratory of reſignation, during Mr.
Williamſon's life; and that this obligation ſhould be recorded in
the regiſter of ſafines *. This plan was adopted. The diſpoſi-
tion was ſigned 6th February 1789, when the price was paid.
His Grace was infeft on the 18th, and his ſafine recorded the
28th, of that month; but the counter-obligation (to which a pe-
nalty of L. Io was annexed) was not executed till 11th Auguſt.
following ; and it was recorded in the regiſter of ſafines on the
13th of that month. It proceeds on the narrative of the diſpo-
fition, and ſubſumes ‘ that, after concluding the ſale of the ſaid
eſtate, I the ſaid Duke agreed, that the freehold-qualification to
vote for a member of parliament for the county of Perth, inhe-
rent in the ſaid lands and others, and on which the ſaid Joſeph
Williamſon ſtands enrolled in the roll of Freeholders for the
ſaid county, and has voted and acted accordingly, ſhould re-
* main in the perſon of the ſaid Joſeph Williamſon during his
* life-time allenarly ; for the accompliſhing that purpoſe, I bind,
* &c.” Two months prior to the Michaelmas meeting 1789, an
objećtion, founded on the above tranſaction, was ſtated to Mr
Williamſon's vote, bearing “That it being, by the terms of the
* tranſaction, admitted by both ſeller and buyer, that Mr William-
‘' ſon was denuded, his qualification to vote could not be revived,
.
# This was the complainer’s ſtatement, and the facts were not controverted.
4. by
128 E L E CTION CAS E.S.
\
‘ by an operation of this kind, made fix months after the ſale
“ had been completed, for the fingle purpoſe of permitting Mr
* Williamſon to vote, and which the purchaſer could put an end
* to, on paying a penalty of L. 10.” The Freeholders having ſuſ.
taine this objećtion, Mr Williamſon gave in a complaint to the
Court of Seſſion, where the point was fully argued; not however
ſo much upon the general incompetency of creating a vote in
this form (which indeed had got the ſanétion of ſeveral decifions)
as upon the particular circumſtances of the caſe (e.g. the abſolute
form of conveyance, the diſtance of time at which the counter-
obligation was granted, and the ſeller's being, in the mean time,
completely denuded, and having in his pocket the price of
every part of the lands) as ſo many indicia of the quality of nomi-
nal and fićtitious *. No deciſion was given upon this queſton,
judgment having gone upon a point of form t. It is ſaid how-
ever, in the Faculty report of the caſe, that ſeveral Judges expreſſed
their opinion, “ That the complainer had no right to remain on
* the freeholders roll 1.’
THE Court however decided otherwiſe in the following caſe,
which bears a very ſtrong analogy to that of Mr Williamſon.
At Michaelmas 1781, Mr Crawford was enrolled as a Freeholder
of the county of Renfrew, upon the ſuperiority of certain lands,
of which he afterwards made an abſolute ſale to Hugh Lord
Sempill ‘ his heirs and diſponees whatſoever, heritably and irre-
* “ It is" (ſaid the counſel for the reſpondents) both in ſhape and ſubſtance
• more ſtrikingly entitled to the charaćter of nominal and fićtitious, and more evidently
* created for a mere political purpoſe, than any one which political ingenuity, aided by
• ſkill in conveyancing, has hitherto been able to deviſe. Though property has been
* ſeparated from ſuperiority, for the purpoſe of parcelling out the latter; though ſuch
* ſuperiorities have been ſtripped of all patrimonial advantages, either in the ſhape of
* reddendo or caſualties; and though they have been conveyed in liferent merely, or in the
* leſs durable ſhape of wadſets; yet hitherto, at leaſt the outward ſemblance of an actual
• conveyance, in proper feudal form, has been thought neceſſary, or at leaſt, an eſtate in
• parchment, if it was in no where elſe; but it was reſerved for the ingenuity of the pre-
• ſent complainer, to contrive the acquiſition of a mere tolerance, or permiſſion to vote
• upon another man’s ſuperiority; juſt as he would accept of a licence for ſhooting upon
* his lands.’ £
# As to this, ſee p. 1 I. f 15th May 1790, Williamſon contra Smith.
‘ deemably,”
**
ALTERATION OF CIRCUMSTANCES. I 29
° deemably, by diſpoſition dated 29th September 1783, and con-
taining procuratory and precept, with an aſſignment ‘ to the
* whole feu and teind-duties, and other duties and caſualities, due and
* payable to him forth of the ſaid lands, &c.’ for all years bygone
and in time coming : Whereupon his Lordſhip was infeft the ſame
day, and his ſafine recorded in the general regiſter on the 2d October
following. Two months before Michaelmas 1786, Mr M-Dowall
lodged an obječtion againſt Mr Crawford's continuing on the roll,
in reſpect of this alteration in his circumſtances ; and at the meet-
ing, he produced, in ſupport of his objećtion, Lord Sempill's ſa-
fine. He alſo averred, and it was not denied,that Mr Crawford had
aćtually delivered up his title-deeds to the noble Lord, who had
been in poſſeſſion of them ever fince. It was anſwered, That Mr
Crawford was never denuded of the feudal right of the lands, of
which he had only had right to the ſuperiority: That Lord Sem-
pili acquired, by the diſpoſition and ſafine in his favour, no more
than an incomplete right, never perfeóted by confirmation: And
that his Lordſhip had (on the day before the meeting, viz, 9th
Oćtober 1786) granted a procuratory of reſignation ad remanen-
tim, on which Mr Crawford had extended an inſtrument of re-
ſignation; ſo that his right was as good as ever. The Freehol-
ders repelled the objećtion ; which gave riſe to a petition and
complaint. It was admitted by the counſel for Mr Crawford,
That if Lord Sempill had reſigned the lands in the hands of the
Crown, upon the procuratory, and, after obtaining a charter of
reſignation, had again conveyed them to the reſpondent, there
would have been a material alteration of the title upon which he
was enrolled; but he argued, that there was here no conveyance of
any new right by Lord Sempill, but only an extinétion of a power
over the qualification, which power, though in his Lordſhip fince
the ſale, had never been exerciſed ; and that therefore it was equi-
valent to an obligation from his Lordſhip not to expede a charter
of reſignation or confirmation,-an obligation which had been re-
peatedly found to preſerve the title of the grantee: And with .
regard to the recency of the reſignation, it was contended, that,
although the law has for wiſe purpoſes declared, that no purcha-
ſer
130 E L ECTION CASEs.
ſer or fingular ſucceſſor ſhall be enrolled, till he be publicly infeft,
and his ſafine regiſtered, or charter of confirmation expede, one
year before the enrolment; it has no where ſaid, that a perſon
who has been enrolled, but has executed ſome deed, which, if
allowed to remain in force, might afford an objection to his qua-
lification, ſhall be liable to be ſtruck off the roll, unleſs his ori-
ginal titles ſhall have been cleared of the ground of challenge ari-
fing from ſuch deed, a year before an obječtion is actually ſtated
againſt him. “ The reſpondent, it was ſaid, “ is not here claim-
* ing a freehold qualification upon a new title. He has, ever fince
* his original enrolment, continued to hold the ſuperiority; and
although, for a period, it was in the power of Lord Sempill to
diveſt him of that ſuperiority at pleaſure, it is ſufficient that his
Lordſhip had no ſuch power at the time when the objećtion
“ was moved and brought under the conſideration of the Freehol-
ders.’ The Court accordingly repelled the objection, and diſ.
miſſed the complaint *. . . .
.
•
MR Wight next confiders the caſe of a truſt-diſpoſition for
behoof of creditors, containing a power to ſell without con-
ſent of the granter;-a ſpecies of alienation which he ſeems
to reckon a ſufficient alteration of circumſtances to authoriſe
expunging the truſter; and, in ſupport of this opinion, he
quotes (at p. 283.) the caſe of Muir and Dalrymple contra
M“Adam, in 1781. That caſe, however, was attended with
ſome very peculiar circumſtances f, which may, in ſome mea-
ſure,
• acth February 1787, Macdowall of Garthland and others, contra George Crawford,
writer in Glaſgow.
+ The following account of the caſe of M*Adam is given in the printed papers in that
of Sir Alexander Campbell, to be afterwards noticed. . Gilbert M*Adam having become
bankrupt, had conveyed his eſtate to truſtees, for behoof of his creditors, who proceeded to
ſell part of his eſtate, and advertiſed the remainder for ſale. Matters were in this ſituation
when Parliament was diſſolved in 178o ; and application was made to his truſtees, by
the friends of one of the candidates for the county of Ayr, to delay the ſale of the re-
mainder of the eſtate till after the eleētion ; and accordingly, the truſtees advertiſed it to
be ſold on the 17th Oétober, being the day immediately ſubſequent to the day of elec-
tion. The eſtate was accordingly ſold at L. 5250, which, it was admitted was not ſuf.
ficient, when joined to the price of his other ſubjects, to pay one half of his debts. At the
election it was moved to expunge Mr M'Adam from the roll; but this was overuled by
. - 2.
ALTERATION OF CIRCUMSTANCES. I 3 I
ſure, weaken its authority as a precedent ; and it has been
departed from in two recent inſtances. The firſt was from
the county of Nairn, where an objection to one of the Free-
holders, That he had conveyed the lands, on which he had been
enrolled, to a truſtee, for behoof of his creditors, by diſpoſition,
containing procuratory of reſignation, precept of ſafine, and a
power of alienation for payment of the granter's debts, was re-
pelled by the unanimous deciſion of the Court, as coming direct-
ly under the enactment of 1681, ‘ that no perſon infeft for re-
* lief, or payment of ſums, ſhall have vote, but the granters of
“ the ſaids rights, their heirs or ſucceſſors”.’
THE other caſe was from Stirlingſhire, and the following were
its circumſtances: In 1787, Sir James Campbell executed an en-
tail of his eſtate in favour of Alexander (afterwards Sir Alex-
ander) Campbell his eldeſt ſon, and, of the ſame date, a truſt-
diſpoſition thereof, (with reference to the entail,) in order to
• make proviſion for payment of my debts, and to lay down a
* proper plan for the management and adminiſtration of my ſaid
‘ eſtates in the event of my deceaſe before the debts are cleared off.”
The truſtees were empowered to levy the rents; to enter vaſſals;
to output and input tenants; to borrow money on the property;
and to ſell ſuch part as might be neceſſary ; to allow a certain
portion of the yearly produce to the heir for the time; and when
a majority of the Freeholders, which gave riſe to a complaint before the Court of Seſ.
fion, founded upon an alteration of circumſtances. In the anſwers it was admitted, that
part of the eſtate was ſold before the election, and that the ſale of the remainder was pur-
poſely delayed by private agreement, till the day after it; and befides, there was no evi.
dence of the preciſe valuation of the part remaining unfold.—Obječtion ſuſtained.
* 11th March 1786, Robert Donaldſon and others contra Sir Ludovick Grant. This
deciſion was of great importance to the parties, and materially affeótcd the fate of the
election. Mr Alexander Brodie, the member returned, only carried the election by one
of majority; and the Committee of the Houſe of Commons, which tried the merits of
the election, having ſuſtained the vote of Sir Ludovick Grant, Mr Brodie was upon that
footing found to be duly elected. Theſe circumſtances are mentioned as ſtrengthening the
authority of this deciſion in point of precedent ; becauſe, in a caſe of ſuch conſequence to
the fate of an eleētion, parties would naturally be anxious to have every argument brought
fully before the Court. - . .
S the
I 32 E L E CT I ON CAS E. S.
the truſt ſhould be fulfilled, to denude in his favour; entailing
as in the principal ſettlement. The deed contained procuratory
and precept, on the latter of which the truſtees were infeft in 1788;
and, on 28th April 1790, they renounced the procuratory in fa-
vour of Sir Alexander, the heir-apparent, promiſing to hold of
him and the other heirs of entail. Sir Alexander having claimed
enrolment at the election-meeting 1790, as apparent heir, an
objećtion was ſtated, upon the ground of the truſt-diſpoſition ;
and having been ſuſtained by the Freeholders, it was afterwards
made the ſubjećt of a complaint to the Court of Seſſion. In
anſwer to this objećtion, however, it was pleaded, That a deed of
truſt, like the preſent, even when completed by infeftment, parti-
cularly abaſe infeftment, is not an alienation of the property, fimple
and abſolute, as in the caſe of a purchaſer, but only ad hunc ef-
fesium; a qualified infeftment, declared in gramio to be in truſt,
for certain ends, uſes, and purpoſes, therein ſpecified, which
are not inconſiſtent with the radical right of property ſtill re-
maining in the granter himſelf, and deſcending to his heirs: That
law excludes, as a qualification, infeftments in ſecurity, war-
randice, or relief; but it will be difficult to aſſign a reaſon why
an infeftment in truſt, which generally proceeds from the mere
voluntary act of the granter, as it did in the preſent caſe, and
for his own intereſt, or that of his family, ſhould operate more
ſtrongly againſt his freehold privileges than infeftments granted
directly to third parties for their own behoof: That as every perſon
whoſe right is even ſuſpected to be only a truſ cannot vote, the
truſtees here have no qualification ; and therefore it follows,
from the complainer's doćtrine, that no perſon can vote upon the
lands in ſuch a caſe, and the right would be annihilated; which is
contrary to the general ſpirit of the election-laws : That the
power to ſell occurs in almoſt every heritable ſecurity, particular-
ly where the ſum is confiderable: And that the power of the
truſtees, to execute the procuratory, or to confirm, is of no conſe-
quence, as even if they did ſo, it would make their right of
voting no better, and conſequently that of Sir Alexander no
worſe. •
On
ALTERATION OF CIRCUMSTANCES. I 33
ON adviſing the complaint with anſwers, replies, and du-
plies, the Court found the Freeholders had done wrong in not
enrolling Sir Alexander, and ordered his name ſtill to be ad-
ded to the roll #.
* 14th December 1790, Sir Alexander Campbell contra Peter Spiers. This deciſion
affirmed in the Houſe of Lords, 5th March 1791.
S 2 C H A P.
I 34. E L E CTION CAS E. S.
C. H. A. P. V.
Of the Constitution of Royal Boroughs in Scotland; and of the Annual
Elečtion of Magistrates and Counſellors.
HERE is no general law appointing one uniform mode and
ſyſtem of election for all the royal boroughs in Scotland. The
ſtatute 1469, c. 69. indeed enacts, That the old councils ſhould an-
nually chooſe the new, and that the new and old councils, together
with the deacons of the crafts, ſhould annually chooſe all officers
belonging to the town; the act 1474, c. 56, ordains, That four
perſons out of the old ſhould be choſen yearly into the new
councils; and by 1487, c. 1 o'8. the act of parliament made con-
cerning the chooſing of officers in boroughs is ratified and ap-
pointed to be put in execution. Neither theſe ſtatutes, however,
nor any others, have laid down any ſpecial rules for carrying
theſe proviſions into effect. An arrangement for this purpoſe is
made by the particular conſtitution (or Set as it is called) of each
borough ; which Set is eſtabliſhed in one of three ways: Either
1ſt, by the original charter of erection; 2d, by order of the
Convention of Royal Boroughs; or, 3d, by uſage and cuſtom.
FROM what is laid down by Mr Wight*, it would appear to
be his opinion, that the Convention have, in every caſe, a power
to alter the ſet of a borough; but for this there does not ſeem
* Page 334.
t()
R O Y A. L. B O R O U G. H. S. I 35
4.
to be ſufficient authority. It has indeed been ſo foundt, where the
ſet had originally been given by the Convention itſelf; but, in
all other caſes, a ſet once eſtabliſhed, cannot be altered by that
bodyt. In the caſe laſt referred to, which occurred in the bo-
rough of Edinburgh, thoſe who contended for the power of the
Convention to alter, adduced ſeveral inſtances in which it had
been exerciſed ; but in all theſe inſtances there appeared to have
been a general ſubmiſſion or conſent from all having intereſt;
ſo that the alterations might be ſaid to have been made by the
boroughs themſelves, rather than by the Convention.
LoNG uſage, as implying a general conſent or acquieſcence by
the community, is alſo ſufficient to alter the ſet of a borough,
however originally conſtituted. This was firſt found in a caſe
from the borough of Wick : That town had been erected into a
royal Borough by a charter from the Crown, in 1589, which con-
tains the following regulation for electing the Magiſtrates and
Council ‘cum ſpeciali et plenaria poteſtate liberis inhabitantibus
‘ et burgenſibus dićti burgi, et ſuis ſucceſſoribus in futurum, cum
expreſſo avifamento et conſenſu noſtri conſanguinei Georgii
comitis de Caithnes, et ejus hatredunn et ſucceſſorum, et non ali-
ter ſeu alio modo, praepoſitum et quatuor balivos, dićti burgi
incolas ſeu inhabitatores, una cum theſaurario, gildae-decano,
conſulibus, intra dićtum burgum, pro gubernatione ejuſdem
faciendi, eligendi, conſtituendi, et creandi, eoſaue toties quoties
expediens videbitur, pro cauſis rationalibus deponendi.” Certain
deviations from the terms of this charter having taken place in
later practice, a declarator was brought in 1748, by John Anderſon
and others, againſt the magiſtrates and town council of the
&
&
+ Edgar, 11th February 1724, Trades and Magiſtrates of Inverneſs contra Duff and
others
it 7th Aug. 1778, John Dalrymple and others contra James Stodart and others. Mr
Erſkine alſo, B. . tit 4. § 23. after reciting 1487 c. 1 1 1 quoted by Mr Wi ht, ſays
of the Convention, “ Their powers were confirmed and enlarged by many poſterior ačis ;
• and in purſuance thereof that body have been in uſe to regulate the manner of elec-
• tion in particular boroughs, where the former ſets appeared irrational or inconvenient.”
See Bankton, vol. 2. p. 579.
borough, .
136 & E L E C T I O N C A S E S.
borough, concluding, inter alia, to have it found and declared ‘that
* in all time coming the election of magiſtrates and counſellors
ought to proceed in conformity to the charter of erection in
* 1589.’ The judgment of the Court, reſpecting the particular con-
cluſions of the action, ſhall be afterwards noticed. On the point
now under conſideration, the following account of the opinion of
the Court is given in the ineſtimable Work from which this caſe
is taken “As to the firſt and general concluſion, the Lords took
* little notice of it; nor was it infifted on after the anſwer made,
‘ that charters of erection are intended to create a body corporate,
‘ and to endue it with the privileges which by law pertain to
royal burghs in Scotland; but as to the manner in which theſe
* privileges are exerciſed, v. g. the election of their magiſtrates,
* which, whether expreſſed or not, would be implied under the
‘ erection itſelf, every thing the grant may happen to point out
‘ as to that matter, is not to be taken to be a condition of the
* grant. For, as to theſe matters, charters of erection are often re-
“ ceded from, in conſiſtence always with the general ſcope of the
‘ erection, ſometimes by long uſage, ſometimes by the aët and
* deed of the Convention, which has power by law to that effect”.
* Even the public laws, made from time to time, to regulate the
‘ elečtion of magiſtrates, go into deſuetude, and charters of e-
* rection cannot be more binding than a public lawf.’ A de-
ciſion to the ſame purpoſe had previouſly been given by the Houſe
of Lords in a caſe from the borough of Dumbarton T.
IF it is incompetent to the Convention to alter the conſtitution
of a burgh, much more is it incompetent to the town-council of
the borough itſelf; and for the moſt obvious reaſon. The ma-
giſtrates and counſellors are themſelves eleēted for a limited time,
and for particular purpoſes; the former to adminiſter juſtice to the
inhabitants, the latter to elect the future office-bearers and repreſen-
* This, it will be noticed, was prior to the deciſion 1778, finding the Convention to
have no ſuch power. The learned Reporter muſt have made the obſervation on the au-
thority of the previous caſe of Inverneſs. -
+ Kilkerran's Decificns, No 8. vote Burgh. Royal. This caſe is alſo reported by
Lord Kames, Rem. Decis. No Iog. - - º -
f 19th February 1735.
** tative:S
Roy AL Bo Rou G HS. 137
tatives of the borough, and both united to attend to the public af.
fairs of the community. But, in exercifing theſe powers, they muſt
always be directed by the exiſting and fundamental laws of the
conſtitution, in virtue of which both they and their predeceſſors.
in office came into power. The claſs of laws alluded to muſt be
confidered as ſo many conditions, upon which alone the franchiſes
of the borough are permitted, and without which they cannot
exiſt. If therefore a ſet of magiſtrates and counſellors ſhould, for
the ſake of continuing or encreaſing their power, think proper
to prolong the duration of their offices from one year to two, or
ſhould create any new reſtrićtion or diſability from voting a-
mongſt the inhabitants at large, in oppoſition to the eſtabliſhed
conſtitution of the borough, ſuch regulations would not be
binding upon any perſon whatever, unleſs ſupported by acqui-
eſcence for a confiderable length of time; in which caſe they
would derive their efficacy not from the powers of the makers,
but from the acquieſcence, as ſhowing the general aſſent or appro-
bation of the community.
It is a different queſtion, how far a town-council is entitled,
by its own authority, to impoſe fines upon thoſe who refuſe to .
accept when eleēted to offices within the burgh, not attended
with power or profit to excite a competition. In ſuch a caſe it
may be ſaid that the conſtitution is altered, by the impoſition of
penalties where formerly there were none. But, in truth, ſuch
enaëtments fall rather to be confidered as by-laws, or regulations.
of internal police, to which the powers of the council are clearly
competent, than as making any alteration in the conſtitution; .
becauſe their only effect muſt be to enſure obedience to the ex-
iſting laws, which might otherwiſe be fruſtrated. This point
was tried by the Court of Seſſion ſome years ago, in a caſe, from .
the burgh of Glaſgow. By regulations enaëted by the town-
council of that city, in 1748, it was, inter alia, provided, that
every perſon elected or continued a counſellor ſhould be obliged
to accept or continue, under a penalty of L. 20, after which he
could not be again required to undertake that office; and that
every perſon choſen dean-of-guild ſhould accept under a penal-
ty;
I 38 E L E C T I O N C A S E S.
ty of L. 40. In virtue of theſe regulations Thomas Hopkirk
and John Macall, having been elected counſellors, and refuſed to
accept, paid their fines. They were afterwards elected deans-
of-guild ſucceſſively; and having declined this honour alſo, they
were fined in L. 40. This, however, was made the ſubject of a
ſuſpenſion, in which the ſuſpenders, beſides arguing upon the
general incompetency of the town-council to make any ſuch re-
gulations, pleaded this ſpecialty, That as they had been already
fined for refuſing the office of counſellor, they could not, con-
ſiſtently with the regulations themſelves, be again fined for de-
clining an office which neceſſarily included that of counſellor.
The reporter of this caſe ſtates it to have been the opinion of
the Court, ‘That there exiſts, in every ſociety, a power to com-
“ pel, by diſcretionary fines, performance of the public offices;
‘ but that in this caſe the town-council were barred by their
* own regulations from exacting the fines in queſtion.” It was
accordingly found “ In reſpect of the ſpecial circumſtances of
“ this caſe, particularly that the ſuſpenders formerly fined off
* when elected into the office of counſellors, and paid that fine of
* L. 20 Serling each, that they could not be of new fined for
* refuſing thereafter to accept of, or act in the office of dean-of-
‘ guild, who, ex officio, muſt ačt likewiſe as a member of the
* town-council; and therefore ſuſpended the letters ſimpliciter*.’
THE ſtatute 2 Geo. II. c. 24. againſt bribery and corruption,
contains a clauſe directing that that ſtatute, and every clauſe
therein contained, ſhall be openly read in preſence of the electors,
whether for counties or burghs, by the officer whoſe duty it is
to take charge of executing the writ or precept of election. This
is directed to be done immediately after the reading of the writ
or precept. The next preliminary is taking the oaths to Govern-
ment, viz. the oaths of allegiance, abjuration, and aſſurance, the
ſtile of all which is univerſally known, and is fixed by the aëts
appointing thoſe oaths to be taken. That ſtile muſt be preciſely
* 13th January 1780, Hill contra Hopkirk and Macall.
and
R O Y A. L. B O R O U G H S. I 39
and rigidly adhered to, and any addition or qualification made
in taking the oaths, will be held as a refuſal to comply with the
directions of the ſtatute. Thus, on the 27th September 1791, at
the annual election of magiſtrates and other officers in the burgh
of Stirling, John Hewit having taken his ſeat as deacon of the
corporation of tailors (an office to which he had been choſen
ſome time before) took the oaths to Government, with this qua-
lification, ‘That he took them ſo far as was agreeable to the
* word of God.” But, on a complaint, the Court of Seſſion un-
animouſly found, That he had not taken the oaths in the form
required by law”.
AT the time this deciſion was given, Hewit took and ſubſcrib-
ed the oaths at the bar of the Court of Seſſion without any reſer-
vation; and it was argued, that his previous vote was good, both
as he had qualified within three months after his admittance in-
to office, and as the ſtatutes impoſing the oaths do not annul the
official acts of thoſe who neglect them. The argument upon that
general queſtion being the ſame as in M*Dowall's caſe 1787 f,
need not now be reſumed. A debate alſo occurred upon the im-
port of the annual acts of indemnity; the one party maintain-
ing, That as thoſe acts proceed upon, the narrative, that “ ſome
* perſons, from ignorance of law, abſence, or ſome unavoidable
* accident, have been prevented from taking the oaths to Go-
vernment, they extend only to thoſe who have omitted, and not to
thoſe who have refuſed, to take them; and that as the act always
expreſsly ratifies the acts and deeds of thoſe who are to have the
benefit of the ſtatute, this implies, that without ſuch ratification
they would be null: The other party contending for an oppoſite
conſtruction, as the only exception from the operation of the acts
is, “That they ſhall not reſtore or entitle any perſon or perſons,
* to any office, employment, benefice, matter, or thing whatſo-
* ever, actually avoided by judgment of any of his Majeſty's
* Courts of Record.” The Court ſuſtained Mr Hewit’s vote, ‘be-
* 24th December 1791, Robert Banks and others contra Henry Jaffray and others.
† See pages 34, 35, and 36. * * . . .
* T * ing,
14e ELECTION CASEs.
* ing (as is ſaid in the report) chiefly moved with this conſidera-
‘tion, that as the enaëtments after the Union authoriſed the party,
‘ at any time within three months after his admiſſion into his of
fice, to take the requiſite oaths, his actings, in the mean time,
were to be conſidered as legal and authoritative in every re--
ſpect f. With regard to the effect of the acts of indemnity,
there was a great diverſity of opinion, many of the Judges
thinking, that where the party had wilfully refuſed, as in this
caſe, to take the oaths in a proper manner, he was not entitled
* to the benefit of theſe enactments.’
.
&
WHEN any wrong is committed, or apprehended to be com-
mitted, at a meeting for election of magiſtrates or counſellors, or
any meeting previous to that forthe election of magiſtrates or coun-
ſellors reſpectively, any conſtituent member of ſuch meeting is au-
thoriſed, by the ſtatute 16 Geo. II. c. 1 r. § 21. to ſeek redreſs by
a ſummary complaint to the Court of Seſſion; and the Court are
directed to “grant a warrant for ſummoning the magiſtrates and
* counſellors elected by the majority, to anſwer within a certain
time, which, by a ſubſequent ſtatute, is reſtricted to fifteen days
In OtléC. - / > -
IN a late queſtion from the burgh of Kinghorn, relative to the
election of a deacon of a corporation, (the deacons there being,
ex officio, members of the town-council) it was objećted to the
complaint, That all parties were not in the field, in as much as it
had been omitted to call any of the members of the corporation.
In this caſe, the magiſtrates had refuſed to admit the complainer
a member of council (although unanimouſly choſen deacon) up-
on this ground, that the corporation had, by diſuſe, loſt the pri-
vilege of electing any deacon at all: And it was plauſibly urged,
that as the action involved in it important conſequences to the
privileges of the corporation, all its members, being intereſted
in the iſſue, ought to have been called ; Yet as the terms of the
ſtatute were perfeótly expreſs with regard to the parties to be
# 6th June 1792. -
ſum-
Roy AL BOR OU G HS. 141
ſummoned, this objećtion was diſregarded by the Court *. The
fame deciſion was given in two other ſimilar queſtions from the
ſame borought. & -
It has been already mentioned, that deacons were made con-
ſtituent members of the town council by ſtatute 1469. c. 69.
Prior to that time, and by the nature of their offices as deacons,
they had no ſuch privilege, nor indeed any other than that of
preſiding at the meetings of their own particular incorporations,
and exercifing a certain degree of authority over the craftſmen
who compoſed them. Even after this ſtatute, the rights and
privileges of deacons, as ſuch, were in no ſhape altered. They
were ſtill ſubječt to the ſame regulations and reſtričtions in that
capacity as before; and their connection with the town-coun-
cil, though a conſequence of their office, was yet a totally diſtinét
and ſeparate charaćter, and in many caſes ſtanding upon a dif-
ferent footing. In this light they are ſtill viewed by law, as ap-
pears from ſeveral decifions of the Court of Seſſion. Thus it is
an article in the ſet of the borough of Edinburgh, fixed in 1583,
by decreet-arbitral of King James VI. that “upon the next coun-
‘ ſel-day after the election of Deakens, the auld Deakens, with
“ ſome of the maiſters of their crafts, ſall preſent the new Deak-
* ens to the counſel, quha ſall authoriſe them in their offices.’
In September 1781, Mr Chalmers of Eaſter Dalry was choſen
deacon of the incorporation of ſurgeons; but on the day when
the new deacons were preſented to the town-council, in terms
of the ſet, he was prevented by indiſpoſition from attending.
He however ſent an extract of his election, and afterwards took
the oaths to Government before a juſtice of peace for the county.
In a few days after, he ſtood candidate for the office of deacon-
convener, when he was obječted to, as not having been received
and authoriſed in his office of deacon, by the town-council. He
proceeded, however, to vote; and by reckoning his own, the
* 29th July 1789, Donaldſon and others contra Magiſtrates and Town council of .
Kinghorn. - . ---
+ July 1789. High contra Main. Eod, die, Lamb contra High.
T 2 votes
*:::
# *.
I 42 E L E CTION CAS E.S.
votes came to be equal, and the matter to be determined by the
caſting voice of the former deacon-convener, who gave it for
Mr Chalmers. Thereafter he was received and ſworn in as dea-
con by the town-council in common form; but under proteſt
that his doing ſo was not neceſſary to entitle him to vote in the
convenery. The council having, on account of Mr Chalmers's
abſence upon the firſt council-day, preferred his opponent to the
office of deacon-convener, a ſuſpenſion was brought by Mr Chal-
mers; and the cauſe having been taken to report, was argued
at great length in mutual informations. The queſtion turned
ſolely upon the interpretation of the concluding word ‘offices’
in the clauſe of the ſet which has been quoted ; the chargers ar-
guing that it applied to the office of deacon as well as to the
conſequent one of counſellor, and of courſe to the power of
fitting and voting in the election of a deacon-convener; and Mr
Chalmers contending, that the expreſſion could only reſpect the
receiving and authoriſing of deacons in their ſeparate and ſuper-
added office of counſellor, in regard to which alone they had any
thing to do with the town-council. This argument prevailed;
for, upon adviſing the informations, the Court “ſuſpended the
* letters ſimpliciter, and found expences due *.’
ON the ſame principle it has been more than once found, that
both the deacons, and thoſe who vote in the election of them,
muſt be reſident in the burgh; a qualification which can only
reſpect their ſituation as deacons, and not as counſellors, who, as
will be afterwards ſhown, need not be reſident. This ſeems to
have been held for law in a caſe t relative to the office of deacon
of the waulkers in Edinburgh, though on account of the uſage,
the Court diſmiſſed the complaint, being of opinion that the quef-
tion could be tried only by a declarator.
MoRE lately an expreſs judgment againſt the votes of non-re-
fidents has been pronounced. It has been already obſerved, that by
* 24th July 1782, Chalmers contra Lord Provoſt, &c. of Edinburgh. The argument
is very well ſtated in Fac. Coll. - “. .
* 31ſt January 1781, Hunter-Blair and others contra Phinn
the
R O Y A. L. B O R O U G H S. I 43
the ſet of the borough of Kinghorn, the deacons of the corpora-
tions are, ex officiis, members of the town-council. Upon the
Friday preceding Michaelmas, the members of the five corpora-
tions have been in the immemorial practice of convening in the
court-houſe of the borough, and taking the oaths to govern-
ment, in preſence of the magiſtrates. Immediately thereafter
the members of each corporation repair to any place they chooſe
to appoint, for elečting a deacon and other office-bearers for the
enſuing year; and the deacon elected at this meeting is always
received as a member of council, at the annual meeting for the
eleátion of magiſtrates upon the firſt Wedneſday after Michael-
mas. At a meeting of the corporation of tailors, 26th Septem-
ber 1788, for the purpoſe of electing a deacon, a proteſt was
taken ‘ againſt the votes of Henry Martin and Balfour Lamb
‘ being received, on account of their not reſiding within the bo-
“rough.” This, however, did not prevent them from voting; and
with the aſſiſtance of their votes, John Lamb carried the election
by a majority of 5 to 4. When the election was reported to the
annual meeting of council, both he, and Robert High who had
the votes of the minority, claimed to be received as deacons;
and the council decided in favour of High on account of
the non-reſidence of two of the voters upon the other ſide. .
This gave riſe to a complaint at the inſtance of John Lamb,
and the queſtion was, if reſidence in ſuch caſes was an in- .
diſpenſible requiſite : The complainer argued in this man- .
ner: That every perſon, upon his admiſſion into an incorpo- .
ration, pays a certain ſum for the purchaſe of his freedom, ,
muſt take an oath, de fideli, to ſupport its privileges, and pay a
certain annual quota for its maintenance and ſupport: That
as long as he conforms himſelf to the laws and regulations of
the incorporation, he cannot forfeit the right he has acquir- .
ed, though, from caſual circumſtances and occurrences, he may
find it neceſſary to change his place of reſidence for a time : :
That notwithſtanding of ſuch change, it is indiſputable that he
may, when he thinks proper, return to the place where he has
acquired his freedom, again reſume his occupation, and perform
any of the funètions of his, office, without challenge, or apply-
ing of new to the corporation for liberty ſo to do : And that
* therefore. .
I 44 ELECTION CASES.
therefore it would be not a little extraordinary, if he ſhould be de-
prived of his right of voting when he came to exerciſe it; while,
at the ſame time, he may confeſſedly exerciſe every other privi-
lege which belongs to him. To this it was anſwered, That
ſubordinate corporations were erected in boroughs, and privi-
leges conferred upon the members of them, not from any pri-
vate favour or view to ſerve individuals, but in order to ſe-
cure to the inhabitants of the burgh a regular and ſufficient ſup-
ply of thoſe articles in which the reſpective corporations dealt,
as is indeed expreſſed in every ſeal of cauſe: That the privi-
leges beſtowed upon ſuch incorporations and their members,
were intended merely to be a quid pro quo, for their ſtipulated
ſervices to the inhabitants of the borough ; and that therefore it
follows, that no member of an incorporation can claim the
privileges granted to his incorporation, while he is not in a
capacity to diſcharge the duties incumbent upon him by the
contračt. It alſo appeared in this caſe, from the ſeal of cauſe of
- the incorporation, granted by the borough in 1672, that the re-
fidence of all the members was plainly taken for granted. The
Court of Seſſion accordingly diſmiſſed the complaint, upon ad-
viſing it, with anſwers, replies, and duplies*. § *.
IN the ſame borough there had been no deacon elected
by the corporation of Bakers, for ſeveral years prior to Sep-
tember 1788; and the perſon choſen upon that occaſion
was reječted by the Council, ‘ In reſpect the incorporation
* of bakers have neglected, for a tract of years bypaſt, to
‘ eleēt a deacon, and other office-bearers, or to hold meet-
* ings for any purpoſes, and cannot now pretend to reſume
“, the privileges they have loſt by their own neglect.’ This gave
riſe to a petition and complaint to the Court, in which it was
pleaded, That a corporation, by neglecting to chooſe a deacon,
loſe the power of doing ſo till they are reſtored by the town-
council; not indeed becauſe their right is cut off by preſcrip-
tion, but becauſe the day of election being paſt, and no deacon
choſen, their power of election is evacuated, and there are no
termini babiles for their exercifing that right: That if the day
* 29th July 1789, Lamb contra High. The ſame deciſion was given in a ſimilar
queſtion from the town of Kirkaldy. -
- of
ROY AL B O R O U G HS. 145
of election of the magiſtrates of a borough elapſe, and no magiſ-
trates are choſen, the only way in which an election can take place
is by a poll, proceeding in conſequence of a warrant from the
Crown: That in the ſame manner, where an incorporation neglects
to chooſe a deacon, they can have no authority afterwardsto take
that ſtep, except in virtue of a ſpecial authority from the magiſ-
trates and town-council of the borough; and that this very corpora-
tion of bakers, when formerly in that ſituation, were obliged to get
ſuch authority before they could eleēt a deacon. The other par-
ty ſtrongly combated the analogy between the election of ma-
giſtrates, and of a deacon, in the above reſpects. They argued;
That the magiſtrates and council of one year, who are the elec-
tors of their ſucceſſors in office, are not a permanent body, their
authority and powers ceaſing with the expiration of the year for
which they are choſen: That although the law authoriſes them to
name the new council before they are themſelves exauðtorated,
yet if they neglect to do ſo in proper time, they are fundii to all
intents and purpoſes, and cannot afterwards ſupply the defeół
of government in the borough, which they omitted to eſtabliſh,
while they were themſelves in office: That a ſubordinate corpora-
tion in a borough, on the contrary, is a permanent body, and muſt
ſubſiſt as long as a ſingle member exiſts:. That although its mem-.
bers are in general allowed, by their charters or ſeals of cauſe,
to elect deacons to rule over them, and ought regularly to do
ſo every year, ſuch elečtion is not neceſſary to their exiſtence
as a corporate body, nor can their omitting to chooſe ſuch:
an officer for a few years, cauſe them to forfeit any of their pri-
vileges, or prevent them, from exerciſing ſuch right of elec-
tion at a future period : That every right, and every privilege,
belonging to the corporation, muſt remain entire as long as the
corporation itſelf exiſts: And that therefore, unleſs it could,
be proved that there is now no ſuch thing as an incorporation.
of bakers in the town of Kinghorn, it muſt be admitted that:
ſuch corporation, notwithſtanding the want of attention paid to .
its intereſt for ſome years, is ſtill entitled to appoint a dea--
con, and to claim, through him, that ſhare in the government
of the borough, to which, by its conſtitution, it was for-
* * merly.
146 E L E CT I O N C A S E S.
merly entitled. It was farther urged, that if a corporation by ne-
glećting, forfeits its right of election, there occurs no remedy:
That it cannot be maintained, that the magiſtrates and town-
council of a borough have power to eſtabliſh a ſubordinate cor-
poration: But if ſo, neither can they re/fore to a corporation, al-
ready eſtabliſhed by preſcription, the right of exerciſing any
particular privilege, which it is ſuppoſed to have loſt or forfeited.
The Court diſmiſſed the complaint, and found expences duef.
MR Wight at p. 339, and 34o, lays it down, that under the ſta-
tutes of 7 Geo. II. c. 16. and 16 Geo. II. c. 1 1. all ſummary com-
plaints againſt the annual election of magiſtrates and counſellors,
or the proceedings of any meeting previous to the election, muſt
be brought within two kalendar months from the annual election,
computed from the laſt ſtep of it; and that although an ordi-
nary action of reduction is ſtill competent at common law, as
well as a ſtatutory complaint, it muſt, like the other, be brought
within the two months. He quotes in ſupport of the doćtrine, a
deciſion of the Houſe of Lords in 1767; and another to the
ſame purpoſe has fince been given by that High Court. The an-
nual election of magiſtrates and counſellors for the borough of
Anſtruther-Weſter, for the year 1783, took place upon the 17th
of September that year, and no complaint was brought againſt
it within the ſtatutory period; but upon the 11th of next Sep-
tember, which was near a twelve-month from the day of elec-
tion, and upon the eve of a new one, an action of reduction and
declarator was brought before the Court of Seſſion, in the name
of Robert Robb and others, deſigned burgeſſes and freemen of
the borough, concluding, That it ought and ſhould be found and
declared, that the ſeveral perſons therein named, convened in the
council-houſe of the ſaid burgh on the ſaid I 7th September
1783, had no right, title or qualification in them, jointly or ſepa-
rately, to make, vote for, or appoint, either counſellors, bºilies,
or treaſurer, or leets of bailies or treaſurer, or other º:
in the ſaid burgh for the then enſuing year; and that ºne ſaid
+ 29th July 1789, Donaldſon and others contra Magiſtrates of Kinghorn. gº
ele&tion
R O Y A. L. B O R O U G. H. S. 147
election and nomination pretended to be made by them, in man-
ner therein before deſcribed, was in itſelf totally void, null, and
ineffectual to all intents and purpoſes whatſoever; and that a?!
right of election in the ſaid borough had lapſed, fallen, and ceaſ-
ed; at leaſt the pretended election, or nomination of magiſtates
and counſellors upon the ſaid 17th September 1783, with all acts,
deeds, and proceedings held in conſequence thereof, or that ma
henceforth follow or be founded thereon, ought and ſhould
be reduced, voided, and annulled, by decreet of the ſaid
Lords of Council and Seſſion. The ſummons alſo conclu-
des, to have it found and declared, That no perſon or perſons
could, in future, elect or be elected magiſtrates or counſelos
of the borough but reſident and habile burgeſſes, being mer-
chants or other tradeſmen therein, nor any perſons who ex-
erciſed the office of magiſtrate or counſellor in any other bo-
rough ; and it likewiſe concludes for ſome other regulations as to
future elections. Two exceptions were ſtated to the competency
of this action : 1/f, That the purſuers were not conſtituent mem-
bers of council, and therefore could bring no action to reduce
any election, not having any intereſt in the ſame ; and 2dy, That
ſuppoſing it competent to them to bring the aëtion, yet, as the
ſame was not brought within two months after the election com-
plained of, they were barred by the ſtatutes of 7 and 16 Geo II.
The anſwer made to theſe defences amounted to this : That the
aćtion was rather a declarator than a reduction ; and that as the
purſuers were entitled to inſiſt for a remedy of all abuſes that
might have crept into the practice of the borough, the conclu-
ſions, of reduction founded upon theſe abuſes, ought to follow as
a neceſſary conſequence. The Lord Braxfield Ordinary pro-
nounced this interlocutor : * Finds the purſuers have no title to
inſiſt in the proceſs of reduction; that the reduction is incom-
petent; and therefore aſſoilzies the defenders from that con-
cluſion of the libel, and decerns; reſerving to the purſuers to
inſiſt in the declaratory part of their libel, and to amend the
“ ſame if they ſhall be ſo adviſed”.’ And a repreſentation againſt
this judgment having been refuſed by his Lordſhip, without
&
6
©
&
* 17th February 1785, Robert Robb and others contra William Thompſon and others.
U anſwers,
:-
148 E L E C"TION CAS E. S.
anſwers, the purſuers, without going to the Inner-houſe, entered
an appeal to the Houſe of Lords ; but the interlocutors were af.
firmed with L. 5o coſts”.
MANY queſtions have occurred as to the qualifications neceſ-
ſary to be elected a counſellor. Some, though but a few, of
theſe are mentioned by Mr Wight, at p. 345. Several others have
been decided by the Court of Seſſion, both before the date of his
work, and fince. Thus, it has been frequently objećted to per-
ſons choſen counſellors, that they did not refide in the borough;
but the objećtion has been uniformly repelled. This was firſt
done in a queſtion from the borough of Dumfries, which is thus .
ſhortly ſtated in the Dićtionary of Decifions: ‘The acts of Par-
* liament providing, That officers in burghs ſhall be traffickers,
* concern only the office-bearers, and not the counſellours f.” Si-
milar judgements were afterwards pronounced in caſes from .
Cupar and Arbroatht, and in one from the burgh of Wickſ. Lord
Kilkerran, in reporting the cafe of Wick, ſays, upon this point, ,
* But as to the qualification of the counſellors, that they ſhould
be reſidenters, it was carried by a narrow majority, and was
afterwards altered; and juſtly, as neither the public law, nor.
the law of this burgh, their charter of erection, require ſuch
qualification. On the contrary, when the oneš and the other,
require the reſidence of the provoſt, and bailies, and not of the
counſellors, it is in effect declaring it not neceſſary that they
ſhould be reſident.” The Lords therefore came to agree, that
“ this part of the interlocutor was to be varied.” Lord Kames, .
in reporting the ſame caſe, adds this N. B. “The judgment con- .
“ cerning the counſellors proceeded upon this ground, that there
* is no law requiring the counſellors to be inhabitants.’’
* 25th April 1785.
t 26th Feb. 1736, Trades of the burgh of Dumfries contra Magiſtrates and Town-
council. Dićt. v. 1. p. 117. † In 1740.
| Anderſon,. &c. contra Magiſtrates and Town-council of Wick, 17th Feb. 1749.
Reported by Kilk. No 8. v. Burgh-royal ; alſo by Falconer; and by Kames, Rem. Dečíſ.
No lo3.
§ The public law alluded to is contained in the ſtatutes 1487, c. 108; 1535, c. 26; and
1609, c. 8,
EN
$$.
ROY A. L. B O R O U G. H. S. 149
IN the ſame caſe, a new queſtion occurred to the Bench, Whe-
ther it ſhould be left at large, that any burgeſs may be a coun-
ſellor 2 or Whether it ſhould not be ſo qualified, that at leaſt the
majority of the council ſhould be reſident? Oppoſite judgments
were pronounced upon this point. The laſt of them was, ‘That
“ the majority of the counſellors ought to be reſidenters,’ (but
with this extenſion) “ or proprietors, though not reſiding ; but that
* in making the majority, the bailies, dean-of-guild, and trea-
* ſurer, ought to be numbered and included *.’ This deciſion
was carried by the narroweſt majority; and Lord Kilkerran ſays,
it contained “regulations which the minority were ſtill of opi-
* nion the Court had nothing to do with ; which this new ex-
* tenſion to heritors confirmed them in, as it ſhowed the whole
“ to be an arbitrary regulation, no way falling under the power
* of the Court as Judges f.”
The good ſenſe in theſe obſervations of Lord Kilkerran had
effect in the next caſe of the kind which came before the Court.
That caſe was a declarator brought by certain burgeſſes of Forres,
concluding to have it found, That none but burgeſſes reſidenters
in Forres, could be counſellors. The decree was general, That
there is no neceſſity for counſellors to be reſident burgeſſes f. In
this caſe the parties were not agreed as to the particular uſage of
the borough ; the one aſſerting, “That there appears to have been
‘ almoſt conſtantly ſome members of the council who were not
* reſiding burgeſſes;’ and the other, that ‘ the inſtances have
* been few, and are far from amounting to a fixed or immemo-
* rial cuſtom.” This decifion may therefore be confidered as hav-
ing gone upon the general point. It has accordingly been fol-
lowed in many ſubſequent caſes ||.
* 13th June 1749. + P. I 12.
f 7th Jan. 1757, Sir William Dunbar and others contra Capt. John M.Leod and o-
thers. Reported by Kames, Selečt Deciſions ; and in Fac. Coll. *
| 24th Jan. 1775, Andrew, &c. contra Provoſt of Linlithgow, &c.—23d Feb. 1791,
Lord Daer contra Birtwhiſtle, from the burgh of Kirkcudbright.—4th March 1785, Án-
derſon and others contra Affleck and others, counſellors of Kilrenny. In this caſe, as
well as in that from Linlithgow, coſts were given by the Court of Seſſion. In the laſt
caſe, Anderſon and his adherents entered an appeal to the Houſe of Lords, and Caſes
|U 2 ONE
I 50 E L ECTION CAS E.S.
ONE caſe, however, muſt be mentioned, in which the Court
of Seſſion ſeems again to have exerciſed that power which was.
ſo much reprobated in the caſe of Wick. The borough of Nairn is.
one of the three which failed to have their conſtitutions recorded
in the books of Convention, as directed by that body in 1708;
and it is ſaid, that no charter or written ſet, regulating the an-
nual elections of that burgh, can now be found. On account of
certain alledged abuſes, an action of declarator was brought before
the Court of Seſſion in 1783, containing this concluſion, amongſt
others, That it ought and ſhould be found and declared, “That
* the provoſt, bailies, office-bearers, and whole remanent coun-
* ſellors of the ſaid burgh of Nairn, ſhall, in all time coming, be
annually elected and choſen, agreeably to the original and an-
cient uſage of the ſaid burgh, from amongſt the real burgeſſes,
landholders, and inhabitants reſident within the royalty, paying
ſcot and lot, and bearing and performing other public burdens
‘ and ſervices within the ſame.’ A long proof was led with regard
to the uſage, which appeared, however, not to have been at all uni--
form ; and, upon adviſing the cauſe, after a hearing in preſence,
the Court found, “That by the conſtitution of the burgh of Nairn,
* the council thereof muſt conſiſt of a provoſt, three bailies, and
dean-of-guild, a treaſurer, and nine counſellors: Find and de-
clare, That it is not neceſſary that the Provoſt be a reſident.
burgeſs; but find and declare, that the three bailies, the dean-of-
guild, and the treaſurer, muſt all be reſiding burgeſſes; and
of the nine counſellors, at leaſt ſix muſt always be refiding bur-
geſſes.’ “Find, That the expence of the defence laid out by
the defenders in this cauſe muſt be paid by the defenders them-
ſelves, and cannot be laid on the funds of the ſaid burgh : Find
the defenders conjunctly and ſeverally liable to the purſuers in
the expence of extracting the decreet to follow hereon, but find
no other expences due *.’ A reclaiming petition having been
.
&%($6&&&&&&&
were put in on both fides; but the matter having been compromiſed, the appeal was
withdrawn by permiſſion of the Houſe, 26th April 1785.
* oth July 1784, Sir Hettor Monro and others contra Robert Forbes and others.
refuſed
R O Y A L B O R O U G H S. I 5 I
refuſed, without anſwers *, the defenders entered an appeal to the
Houſe of Lords; after diſcuſſing which, it was by that auguſt
Houſe “Ordered and adjudged, that the interlocutor of I oth
* July 1784, be affirmed with the following variations: Leave
out after the words (they find that) all the words of the interlo-
cutor to the words (and find and declare) and inſtead thereof
inſert, (That the bailies and office-bearers of the ſaid burgh of
Nairn in all times coming, ought to be eleēted and choſen from
among the real and reſident burgeſſes thereof; but they do not
find that ſuch reſidence is a neceſſary qualification of the perſons
to be elected provoſt, or other counſellors of the ſaid burgh, ex-
cept the magiſtrates aforeſaid) f.”
IN the caſe of Kilrenny, already mentioned, it was alſo objećt-
ed to the votes of two counſellors, that they were counſellors in . .
other burghs. But this objećtion was repelled both by the Court
of Seſſion and the Houſe of Peers ; which indeed was almoſt a
neceſſary conſequence of the judgments finding non-reſidents
entitled to be counſellors. .
It has likewiſe been found, that there is no neceſſity for the
Provoſt to be a reſiding burgeſs ; but as to all other office-bearers
(or officiars as they are termed) the bailies, dean-of-guild, and trea-
ſures, theſe can only be choſen from burgeſſes reſiding in the
town ; and for this there are the ſtrongeſt reaſons of expediency.
The bailies of every royal borough poſſeſs a certain juriſdićtion
over the inhabitants, in matters both civil and criminal, as does
the dean-of-guild in matters of police; ſo that their conſtant at--
tendance in the borough is neceſſary for the diſcharge of theſe
very important duties. It is no leſs obvious, that the treaſurer or
caſhier of the burgh, having the ſole charge of its pecuniary con-
cerns, ought alſo to be always at hand. This matter; however,
is not left to be judged of by confiderations of expediency; for.
there are many expreſs ſtatutes upon the ſubjećt. The Leges Bur-
gorum, $ 77. require, that the baillies ſhould be choſen ‘ of the faith-
“‘ful men, and of gude fame, be the common conſent of the ho-
* 21ſt July 1784. + 3d May 1785. *
g neſt.
I.52 -E L E CT I O N CAS E. S.
* neſt men of the burgh.” The act 1487, c. 108. requires, ‘That the
eleētion of officiars in burghs ſhall be of the beſte and worthieſt
* in-dwellers of the towne.' The act 1535 chap. 26. anent the chu-
ſing of officers in burgh “ſtatutes and ordains, That na man in
* time cumming be choſen Proveſt, Baillies, or Aldermen into burgh,
* bot they ar honeſt and ſubſtantious burgeſſes, merchandes, and
* indwellers of the ſaid burgh, under the paine of tinſel of their free-
* dome, quha dois in the contrair.’ The aët 1609, chap. 8. ordains,
* That na man ſhall in any time comming be capable of proveſtrie,
“ or other magiſtracie within any burgh of this realme, nor to be
‘ eleēted to any of the ſaids offices within a burgh, but marchants
“ and actuall traffickers, inhabiting within the ſaids burghs alla-
* narlie, and na others.’
Theſe two laſt ſtatutes, make expreſs mention of the Provoſt
as eligible only from the reſident burgeſſes; and even the ſtatute
1487, which makes mention of “officiars' in general, may ſeem to
comprehend the chief officer as well as others. It has, however,
been a cuſtom almoſt univerſal to elect to that office perſons of
diſtinčtion and influence, without regard to reſidence, and in
moſt caſes not at all connected with the burgh but by politics: And
in reſpect of its univerſality, the practice has obtained the ſanétion
of the courts of law. This was long ago found by the Houſe of
Lords in a caſe from the borough of Dumbarton *, where an op-
poſite deciſion of the Court of Seſſion was reverſed. The ſame
was done a in caſe from the Burgh of Nairn f already particularly
mentioned,
THE ſame judgment, however, expreſsly finds, “ That the
* bailies and office-bearers of the ſaid burgh of Nairn, in all
‘ time coming, ought to be elected and choſen from among the real
* and reſident burgeſſes thereof.” And the like had been found in
moſt of the caſes that have been juſt quoted. In the caſe of Wick, ſo
often mentioned, it was found of ‘conſent, that the dean-of-
* guild and treaſurer ſhould be reſidenters.’í.
* 19th Feb. 1735.
+ 1c.th and 21ſt July 1784, Sir Hector Monro and others contra Robert Forbes and
others. Affirmed (as to this point) in the Houſe of Lords 3d May 1785. See above, p. 15o.
j: See Kilkerran, p. 1 12. .
A
R O Y AL B O R O U G HS. 153
A point ſomewhat different was decided lately in a caſe from
the burgh of Anſtruther-Eaſter. By the ſet of this burgh, the
council confiſts of 19 perſons, viz. 3 baillies and a treaſurer (who
have the executive part of the government,) and 15 counſellors:
Theſe 19 chooſe their ſucceſſors, and may continue themſelves
from year to year, with the alteration of only 4 new counſellors
annually. The bailies and treaſurer are named by a poll of the
whole burgeſſes, out of a liſt of 9 perſons, made by the old bailies, .
who themſelves always make 3 of the liſt. At the Michaelmas
election, 14th September 1784, Andrew Johnſton and others
were choſen magiſtrates and counſellors for the enſuing year.
A complaint was preferred to the Court of Seſſion by the mino-
rity, praying the Court to reduce the election on different
grounds; and on this, amongſt others, That by the ſet, the bur-
geſſes are entitled to a leet, or liſt, of 9 qualified perſons, out of
which they are to chooſe their bailies; and a liſt of 3 quali-
fied perſons, out of which they are to chooſe their treaſurer:
And as they contended, that no perſon who was a non-re--
ſident, was capable of being elected a bailie, and as Mr John
Anſtruther, who was a non-reſident, was put upon the leet of
bailies, and conſequently there was only a leet of 8 in place of
9, preſcribed by the ſet, the leet was therefore defečtive, and the
election conſequent upon it void and null. In ſupport of this,
the following argument was maintained: That a leet, or liſt,
ſuch as here occurs, being a reſtraint upon the freedom of elec-
tion, ſhould be executed legally, and interpreted liberally, in fa-
vour of the people: That if this leet contains only 8 in place of
9, the freedom of election is deſtroyed; but to put an unquali--
fied perſon in the leet, is the very ſame thing as to give out on-
iy 8: That if one unqualified perſon be admitted, the ſame rea-
ſons will juſtify the admiſſion of more, and the conſtitution of
the town muſt be thereby entirely overthrown; for as the
old bailies are allowed to name themſelves in the leet, no
more would be neceſſary than to add 6 unqualified perſons to
perpetuate the magiſtracy in their own number, and extinguiſh -
the right of the burgeſſes, to whom no choice would remain.".
To this it was anſwered, That admitting, for arguments ſake, .
that it may be neceſſary that bailies, when choſen, muſt be re-
ſident.
ºf 54. E L E CT I O N C A S E S.
ſident, it does not follow that no perſons can be put upon the
leet but thoſe who are reſident. Imo, By the conſtant uſage of
this burgh, as far back as the Union, as well as by the general
law of Scotland, counſellors may be non-reſident. 2do, The ſet
requires only that 9 perſons be put upon the leet: No ſort of
diſtinétion is made between reſident and non-reſident counſellors.
Every counſellor may be put upon the leet. By the eſtabliſhed
uſage of this and other burghs, counſellors may be non-reſident. It
follows, therefore, that being to every legal effect counſellors, they
may, like others, be put into every ſituation into which legal
counſellors may be put. 3tio, If counſellors, by law and uſage,
may be non-reſident, even admitting the old acts of parliament,
which require the refidence of office-bearers, to be in full force;
yet it is equally clear, that thoſe acts, being limitations upon ge-
neral right, are not to be carried farther than their letter, and
therefore can only extend to the eleēted, and not to thoſe who,
being legal counſellors, may be put upon the leet for bailies. It
was alſo ſaid, that there are but three or four burghs in Scot-
land where ſuch a mode of eleētion prevails; and, by the ſet,
there is no reſtriótion or limitation whatſoever, reſpecting thoſe
who may be put upon the leet.
THE Court of Seſſion, however, upon adviſing the com-
plaint, with anſwers, replies, and duplies, found, “ That the
magiſtrates of the ſaid burgh of Anſtruther-Eaſter, and
thoſe put upon the leet for bailies, ought to be reſident
in the ſaid burgh : And ſuſtain the objećtion, that the
ſaid John Anſtruther, Eſq; was non-reſident when put upon
the leet for bailies at the annual election, on the 14th day of
September laſt, and was thereby incapable of being elected a
bailie; and reduce the eleētion of magiſtrates and town-coun-
ſellors, made for the ſaid burgh at ſaid eleētion, and decern
and declare accordingly ; and find the reſpondents liable in full
coſts of ſuit to the complainers, of which decern an account to
be given in".’ The reſpondent having appealed to the Houſe
Lords, this judgment was there reverſed-f.
BEFoRE leaving the ſubjećt of the qualifications requiſite to
* 25th February 1785, Alexander Tenant and others contra Johnſton and others.
+ 28th April 1785.
be
%
R O Y A L B O R O U G H S. I 55
be elečted bailies, it may be proper to mention, that in the caſe
of Nairn in 1783 *, the ſummons of declarator had this farther
concluſion, ‘That the common clerk of the ſaid borough ſhall, in
‘ all time coming, be a notary public, legally admitted, and ca-
pable of exercifing the office and duty of a common clerk of a
royal borough ; and that ſuch common clerk ſhall not be capable
of enjoying the office of a common clerk, or emoluments and
perquiſites thereof, by himſelf or his ſervants, and at the ſame
time of holding and exercifing the office and juriſdićtion of
one of the magiſtrates of the ſaid borough.” The Court of Seſ-
ſion, 1 oth and 21ſt July 1784, ‘found, That the town-clerk, or any
* perſon officiating as his depute, muſt be a notary public; and
‘ that he ſhall be incapable of being elected a member of the coun-
* cil of the ſaid burgh, in any capacity during his continuance in
“ the office of town-clerk or deputy.’ This was going even far-
ther than the ſummons concluded for, which was only that the
town-clerk, while holding that office, ſhould be incapable of be-
ing a magiſtrate. That, therefore, was correóted by the decree
of the Houſe of Lords, which, as to this point, is in the follow-
ing words: ‘Leave out the word (town-clerk), and inſtead there-
‘ of, inſert (common clerk of the ſaid burgh); leave out after
the words (incapable of), the words (being elected a member
of the council of the ſaid burgh, in any capacity during his
continuance in the office of town-clerk or deputy), and inſtead
thereof, inſert, (holding the ſaid office of common clerk, and
at the ſame time of holding the office of one of the magiſtrates
of the ſaid burgh.”
&©©
MR Wight, at p. 345, mentions certain deſcriptions of perſons
who are debarred from voting in elections of magiſtrates and
counſellors, becauſe their ſituation creates a violent preſumption
of their being liable to influence. To the inſtances which he ad-
duces, may be added a late caſe from the burgh of Kinghorn,
where it was obječted to the votes of two perſons, that the one
was the town’s officer and trade's officer, the other the jailor, and
both of them in the gift of the council, with ſalaries annexed to
them, and removeable at the pleaſure of the magiſtrates. Theſe
* Referred to at page 15o.
X VOteS
I 56 E L E C T I O N C A S E S.
votes were given in the ele&tion of the deacon of the weavers,
who in this burgh is ex officio a member of the town-council; and
the eleētion having been reported to the council at the enſuing
election of magiſtrates, theſe two votes were ſuſtained. A com-
plaint was brought to the Court of Seſſion, upon adviſing which,
with anſwers, replies, and duplies, the Court “Suſtained the ob-
* jećtions to the votes of the ſaid John Chapman, as jailor, and
‘ of the ſaid William Chapman, as town-officer and trade's of.
* ficer; and find that their votes ought not to have been taken in
* the election of the deacon of the ſaid corporation of weavers in
* Kinghorn, upon 26th September laſtº.” Coſts were alſo award-
ed, and an account appointed to be given in. The interlocutor
likewiſe ‘allows the decreet hereon to be extracted, without wait-
* ing the determination of the coſts of ſuit, although the ſaid
* decreet may happen to be extracted, before the coſts of ſuit
* ſhall be determined.’ A reclaiming petition, upon this and
ſeveral other points, was refuſed without anſwers.
It has been expreſsly found, that no perſon under the age of
21 years, can vote in any ſtage of a borough-election f.
At the time of the laſt general election, Lord Daer, eldeſt ſon
of the Earl of Selkirk, was a candidate for the office of provoſt of
the burgh of Kirkcudbright; but it was objećted, that he, being
the eldeſt ſon of a Peer, was thereby diſqualified from being e-
leóted, either as a magiſtrate or counſellor in any borough. And
the queſtion having come before the Court of Seſſion, the objec-
tors argued, “ That as it has been held, that all interference on
the part of the Peerage, in the election of the repreſentatives of
* 6th Auguſt 1789, Thomas High contra Robert Main. Similar deciſions were given
at the ſame time in ſeveral other caſes.—N. B. A caſe is referred to in the printed papers,
in 1775, from the burgh of Linlithgow, where a vote in the election of a deacon was ob-
jećted to on this ground, That the perſon claiming it was bellman of the town ; but the
Court repelled the objećtion. It does not appear, from what is here ſaid of that caſe,
whether the bellman was removeable at pleaſure.
+ 3d February 1761, James Rodgers and others, members of the town-council of Sel-
kirk, contra Andrew Henderſon and others. --
the
R O YA L B O R O U G HS. I 57
the Commons, was inconſiſtent with the ſpirit of the conſtitution,
ſo it was found by the parliament of Scotland, that the eldeſt
ſons of Peers could not repreſent either ſhires or boroughs. It
has alſo been ſo found by the Britiſh Houſe of Commons, ſince
the Union: And as it has been underſtood to be a conſequence of
this, that the eldeſt ſons of Peers could not be enrolled as Free-
holders, or have any voice in the choice of Commiſſioners from
ſhires; ſo the ſame principle ſeems to exclude them from any ſhare
in the election of Repreſentatives of burghs, either immediately as
delegates, or mediately as counſellors, in whom is veſted the choice
of thoſe delegates.”
It was anſwered, “The reſpondents are totally unacquaint-
ed with any thing in the conſtitution, or parliamentary hiſtory
of Scotland, inconſiſtent with the eldeſt ſon of a Peer being
counſellor in a royal burgh. The allegation, that it was de-
termined by the Scotch parliament, that a Peer’s eldeſt ſon
could not fit as the repreſentative of a county or royal burgh,
if well founded, and ſuſtained as ſufficient, in the preſent ſtate
of things, to exclude the eldeſt ſons of Scotch Peers, from fitting
in the Commons Houſe of Great Britain, couldafford no argument
againſt the eldeſt ſon of a Peer being put upon the Freeholders’
roll, and ſtill leſs againſt his being a counſellor of a burgh, as
no diſqualification can be extended by implication. At the
ſame time, the reſpondents do by no means admit, that Lord
Daer was incapable of being elected even member of parliament
for the diſtrićt of burghs; and they flatter themſelves, that,
while the queſtion as to his Lordſhip's capability of being enrol-
ed as a Freeholder, lies before your Lordſhips undetermined, you
will not think it proper to determine againſt him the queſtion,
Whether he is capable of being a counſellor of a royal burgh
even though there were nothing in the pračtice of the country to
ſupport his right. The fact, however, is, that many caſes have
occurred where the eldeſt ſons of Peers have been counſellors
and magiſtrates of boroughs. In Whithorn, the Earl of Gallo-
way’s eldeſt ſon (William, Lord Garlies,) was a member of the
council, and, it is believed, ſeveral times Provoſt. The Marquis
X 2 of
I 58 ELECTION CAS E.S.
of Lorn was, it is believed, in like manner, upon different occa-
ſions, Provoſt of Dumbarton; and the reſpondents have no doubt
that ſimilar inſtances, in other boroughs, might be diſcovered,
were the matter inveſtigated. Nor is this practice modern. Be-
fore the Union, the eldeſt ſons of Peers were not only members
of the town councils, but were in uſe to vote in the eleētion of
Commiſſioners to Parliament, and to fign their commiſſions.”—
The objection was accordingly repelled *.
* 23d Feb. 1791, Alexander Birtwhiſtle contra lord Daer. It will be obſerved, that
this decifion was prior to the ſolemn diſcuſſion, both in the Court of beſſion and Houſe of
Lords, between his Lordſhip and the Freeholders of Wigton , by the iſſue of which, the
eldeſt ſons of Peers are for ever excluded from the rolls of Freeholders in counties. See
above, page 122.
APPENDIX.
( 159 )
A P P E N D I X.
No I.
Anno trigeſimo Georgii III. cap. xvii.
An Aćt for altering the time appointed for holding the Sum-
mer Seſſion in the Court of Seſſion in Scotland; and for alter-
ing Whitruntide and Lammas terms, in the Court of Exchequer
in Scotland.
The following ſeótion relates to elečtions.
IV. AND whereas, by an act paſſed in the fixteenth year of
the reign of his late Majeſty King George the Second, intituled,
“An act to explain and amend the laws touching the elections
of members to ſerve for the Commons in Parliament, for that
part of Great Britain called Scotland, and to reſtrain the partia-
lity, and regulate the condućt of Returning Officers at ſuch elec-
tions, it is, inter alia, enaëted, That if, at any. Michaelmas meet-
ing, or meeting for election, any perſon claiming to be enrolled.
ſhall, by judgment of the Freeholders, be refuſed to be admit-
ted; or if any perſon who ſtood upon the roll ſhall, by like
judgment, be ſtruck off, or left out of the roll, it ſhall and may
be-
16o A P P E N DI X.
be lawful for him, or them, who is ſo refuſed to be admitted, or
whoſe name is ſo ſtruck off, or left out of the roll, to apply (ſo as
ſuch application be made within four kalendar months after
their being ſo refuſed, ſtruck off, or left out) by ſummary com-
plaint to the Court of Seſſion, who ſhall granta warrant for ſum- .
moning the perſon or perſons upon whoſe objection or obječtions
he was refuſed to be admitted, or was ſtruck off or left out, as
aforeſaid, upon thirty days notice to anſwer, and ſhall proceed to
hear and determine in a ſummary way on ſuch complaint ; and
if any perſon ſhall be enrolled, whoſe title ſhall be thought liable
to obječtion, it ſhall and may be lawful for any freeholder ſtand-
ing upon the ſaid roll (whether ſuch freeholder was preſent at
the meeting or not) who apprehends that ſuch perſon had not a
right to be enrolled, to apply in like manner by complaint to
the Court of Seſſion, ſo as ſuch application be made within four
kalendar months after ſuch enrolment: And whereas it ma
happen, in conſequence of the ſaid alteration in the time of hold-
ing the ſummer ſeſſion in the Court of Seſſion, that the ſaid four
kalendar monnhs may elapſe before there is a proper opportuni-
ty of applying to the Court of Seſſion by complaint, in the caſes
provided for by the ſaid act of the fixteenth of his late Majeſty;
Be it therefore enacted, that a complaint preſented to the Lord
Ordinary on the bills in time of vacation, within the ſaid four
kalendar months, ſhall be equivalent to, and have the ſame ef-
feót, for all the purpoſes provided for by the ſaid act of the fix-
teenth of his late Majeſty, as if ſuch complaint had been preſent-
ed to the Court of Seſſion while fitting. Provided always, that
printed copies of ſuch complaint be lodged, in the uſual form, on
or before the third ſederunt day of the enſuing ſeſſion.
No II.
A PP E N D IX, I6E
No II.
Anno trigefimo tertio Georgii III, cap. lxiv.
An Aćt to explain and amend an act, paſſed in the Seventh and
Eighth years of King William the third, intituled, An act for the
further regulating elections of Members to ſerve in Parliament, and
for the preventing irregular proceedingſ of ſheriff, and other officers
in the electing and returning ſuch memberſ, ſo far as relates to the
publication of notices of the time and place of election. [17th
June 1793 *.]
WHEREAs, by an act made and paſſed in the ſeventh and
eighth years of the late King William the third (intituled an ači
for the further regulating elečtions of Members to ſerve in Parliament,
and for the preventing irregular proceedings of ſheriffs and other officers
in the elečing and returning of ſuch Members), it is enacted, That
the proper officers therein mentioned ſhall, upon the receipt of
precepts for the election of Members to ſerve in Parliament, forth-
with cauſe public notice to be given of the time and place of
election, and ſhall proceed to election thereupon within the time
by the ſaid ačt limited, and give four days notice at leaſt of the
day appointed for the elečtion. But it is not in the ſaid act ſpeci-
fied at what time, or within what hours of the day, it ſhall be
incumbent on the proper officers to give ſuch public notice as
aforeſaid: And whereas, by reaſon of ſuch uncertainty, great
inconveniencies may ariſe from the undue practices of Return-
ing Officers and others, may it pleaſe your Majeſty, that it
may be enaëted; and be it enacted by the King's moſt Excellent.
* By A&.33 Geo. III. cap. 13, the Clerk of Parliament is appointed to indorſe, in
Engliſh, on every ačt, the time when it receives the Royal aſſent, which is declared to be
the date of its commencement, where no other is ſpecified in the aët itſelf. This regu-
lation to take place 8th April 1793. Before that time, every Aét of Parliament, in
which the time of commencement was not ſpecified, was underſtood to commence from .
the firſt day of the Seſſion in which it was paſſed. *
+. Majeſty
I62 APPEND Ix.
Majeſty, by and with the advice and conſent of the Lords Spiri-
tual and Temporal, and Commons, in this preſent Parliament aſ-
ſembled, and by the authority of the ſame, That, from and
after the paſſing of this act, all notices to be given of the time
and place of any election for Members to ſerve in Parliament,
ſhall be publicly given at the uſual place or places, within the
hours of eight of the clock in the forenoon and four of the clock
in the afternoon, from the twenty-fifth day of Oétober to the
twenty-fifth day of March incluſive, and within the hours of
eight of the clock in the forenoon and ſix of the clock in the af.
ternoon, from the twenty-fifth day of March to the twenty-fifth
day of Oétober incluſive, and not otherwiſe; and that no notice
to be given of the time and place of election of Members to ſerve
in Parliament ſhall be deemed or taken to be a good or valid
notice for any purpoſes, or to any effect whatſoever, which ſhall
not be made and publiſhed in the manner and within the time
of day aforeſaid; any law, ſtatute, uſage, or cuſtom to the
contrary notwithſtanding.
No III.
Anno trigefimo quinto Georgii III, cap. lxv.
An Aćt to prevent unnecſſary delay in the execution of writs,
for the eleētion of Members to ſerve in Parliament for that
part of Great Britain called Scotland, [19th May 1795.]
WHEREAs, the execution of writs of election of Members to
1erve for the Commons in Parliament, for that part of Great
Britain called Scotland, has been often improperly delayed; for
remedy whereof, may it pleaſe your Majeſty that it may be e-
naćted ; and be it enaćted by the King's moſt Excellent Majeſty,
by and with the advice and conſent of the Lords Spiritual and
Temporal, and Commons, in this preſent Parliament aſſembled,
and by the authority of the ſame, That the ſheriff or ſtewart de-
pute
A P P E N ID I X. I 63
pute or ſubſtitute of any county or ſtewartry in that part of
Great Britain called Scotland ſhall, within fix free days after re-
ceiving the writ or writs for the election of Members to ſerve in
Parliament, direct the notices required by law to be given as to
the time and place of election of a Member for ſuch county or
ſtewartry; and that the day of election appointed by the ſheriff
ſhall not be ſooner than ſix free days, nor later than fifteen days,
after the day of publication at the church doors.
II. AND whereas, doubts have been entertained by whom the
writs for election of Members to ſerve for the Commons in Par-
liament, for that part of Great Britain called Scotland, ſhould be
received and executed, when there happens to be a principal or
high ſheriff or ſtewart appointed by his Majeſty in any county
or ſtewartry, as well as a ſheriff-depute or ſtewart-depute, whoſe
commiſſion is alſo derived from the Crown, and is ad vitam aut
cuſpam, in reſpect, that by an act paſſed in the twentieth year of
his late Majeſty, for taking away and aboliſhing the heritable
juriſdićtions, theſe offices, and the powers and authorities be-
longing to them, were eſſentially changed; for remedy thereof,
and to remove ſuch doubts, be it enacted, That, upon iſſuing of
any writ or writs for the election of a Member or Members to
ſerve in Parliament for that part of Great Britain called Scotland,
the ſaid writ or writs ſhall be forthwith forwarded and delivered
to the ſheriff-depute, or ſtewart-depute, or to the ſubſtitute of
each, and the principal or high ſheriff or ſtewart ſhall not offi-
ciate, either in receiving or in executing the writ, the whole of
this duty being entruſted to the ſheriff-depute, or ſtewart-de-
pute, or, in caſe of abſence, to the ſubſtitute of each, and to no
other perſon whatſoever.
III. AND be it enaëted, by the authority aforeſaid, That if
any ſheriff or ſtewart-depute, or ſubſtitute, ſhall wilfully refuſe,
neglect, or delay, to do or perform what is hereby required of
him, in any of the particulars aforeſaid, he ſhall, for every of.
fence, forfeit and pay the ſum of L. 5oo Sterling, one half to the
* perſon
164 A PPE N DIX.
perſon who ſhall ſue for the ſame, and the other half to his Ma-
jeſty; to be ſued for and recovered in the manner direéted b
an ačt of the fixteenth year of the reign of his late Majeſty King
George the Second, intituled, An Aći to explain and amend the
Laws touching the Elečtion of Members to ſerve for the Commons in
Parliament for that part of Great Britain called Scotland; and to re-
Jirain the partiality, and regulate the condućt of Returning Officers, at
ſuch Elections. *
IV. AND be it enacted by the authority aforeſaid, That if any
principal or high ſheriff or ſtewart, or any perſon other than the
ſheriff or ſtewart-depute, or the ſubſtitute of each, ſhall preſume
in any reſpect to interfere, or take upon himſelf the execution
of writs of eleētion of Members to ſerve in Parliament for that
part of Great Britain called Scotland, every ſuch perſon ſo offend-
ing in any particular, ſhall, for every offence, forfeit and pay
the ſum of one thouſand pounds Sterling, one half to the per-
ſon who ſhall ſue for the ſame, and the other half to his Majeſty,
his heirs and ſucceſſors, to be ſued for and recovered in the man-
ner direéted by an act of the fixteenth year of the reign of his
late Majeſty King George the Second, intituled, An Aći to explain
and amend the Laws touching the Elećlion of Members to ſerve for the
Commons in Parliament for that part of Great Britain called Scotland;
and to reſtrain the Partiality, and regulate the Condućt of Returning
Officers at ſuch Elečtions. And further, the perſon convićted on
any ſuit ſhall thereby become diſabled, and incapable of ever
bearing or executing any office or place of truſt whatſoever under
his Majeſty, his heirs and ſucceſſors.
V. PR ov1DED always, and be it further enaëted by the autho-
rity aforeſaid, That every action or ſuit for any offence againſt
this act ſhall be commenced within twelve months after commiſ-
fion of the fact on which the ſame is grounded, or within twelve
months after the concluſion of any proceedings in the Houſe of
Commons relating to ſuch eleētion.
IV.
A PPEND IX. I65
VI. AND whereas, the ſeveral pariſh churches in the ſtewartry
of Orkney and Zetland, are ſituated upon iſlands detached and
difficult of acceſs; be it therefore enaëted, That the writ for the
election of a Member to ſerve in Parliament for the ſaid ſtewar-
try ſhall be publiſhed at the town of Kirkwall, and the twelve
pariſh churches in the iſland of Pomona, or the main land of Ork-
ney only. *
Y 2 ºn INDEX.
( 167 )
I N D E X.
A
Alteration of circumſtances, what ſufficient for ſtriking a perſon off the roll, page .
123 et ſeq.
refigning the lands, and infeftment upon the new charter, not ſufficient,
I24 .*
— nor conveyance, with an obligation from purchaſer not to take a public
infeftment, 126. 128
baſe infeftment refigned before objećtion brought before Freeholders,
I 28
truſt-conveyance, with power to ſell, 130 et ſeq.
Apparent-heirs, entitled to be enrolled, if predeceſſor had a title, 78
muſt lodge a claim two months before the Michaelmas meeting, 8o
B
Boroughs, Convention of, have no power to alter ſets, unleſs given by themſelves,
I
Rºi, ſets may be altered by uſage, 135
council cannot alter ſet, 136. But may, by fines, compel performance
of offices, 138
clerks of. See Clerk.
town-officer and trade's-officer cannot vote in a Borough Ele&tion, 1 56
C
Charter, and infeftment muſt be produced by every claimant, 62. Charter not ſup-
plied by an extraćt from Chancery records 63, et ſeq. ,
Claim for enrolment, muſt be lodged with ſheriff-clerk, two months before Michael-
mas meeting, 13
—— what muſt it ſet forth 2 15 w
if date of regiſtration of ſafine muſt be ſpecified, 16
—— effect of a miſnomer, 18 sº
—— even ſuperfluous parts muſt not miſlead 19, et ſeq.
—r—— need not ſpecify the particular charaćter in which the claim is made, 22
Clerk
168 } N D E x.
Clerk, common of royal boroughs muſt be a notary public, 155 .
cannot be at ſame time clerk and magiſtrate, ibid.
Commiſfioners from ſhires to the Parliament of Great Britain, I to 133
of ſupply, have the ſole charge of adjuſting and dividing valuations,
28 *
Aº- ~º their decrees ſubjećt to review in the Court of Seſſion, 28. ; by
exception, if informal or inconſiſtent with prior regular diviſions,
30. Otherwiſe, only by redućtion, 29 “x
quorum of Commiſſioners, 31 et ſeq.
does their negle&ting to take the oaths to Government vitiate their
proceedings 2 34
can their clerk act as commiſſioner 2 33
Complaints to the Court of Seſſion, againſt the judgments of the Freeholders, with-
* in what time muſt they be preferred : I. Alſo Appendix No I.
to whom competent F 2 et ſeq.
who muſt be made parties to them : 1 r.
— can the individual Freeholders, called as reſpondents, effe&tually with-
draw all oppoſition to a complaint * r I
——— can new evidence be received in the Court of Seſſion, to ſupport a
claim rejećted by the Freeholders ? 4 et ſeq. Two curious caſes, 8.
and ef
——- can ºraion. be made in the Court of Seſſion to a complainer's
qualification 24
againſt borough eleētions, within what time muſt they be preferred,
146 \.
if that time is allowed to elapſe, does any remedy lie at common law
146 * sº
to whom competent 2 147
— who muſt be made parties? 146
Coroner, offices of coroner, and mair of fee, do not afford a freehold qualification,
2.5 ---
Convention of Royal Boroughs. See Borought royal
ID
Deacons, who, I 41
when made members of the town-council, 134 and 141
—— ſtill hold a diſtinčt character as deacons, 141. Muſt refide in borough,
142. So muſt their eleētors, 143
—— if not choſen at the proper time, their election muſt be authoriſed by
town-council, 144
E.
Ele&tion of Commiſſioners from Shires, diets of, how appointed, Appendix No 3
Electors, who diſabled from electing P 122 - - ,
Extent, old, what 2 24,
how proved, ibid. et ſº.
*
^.
I N D E X. I69
F
Freeholders, their Michaelmas meetings when firſt inſtituted 1
have no right to call for the warrant of a charter, 62; but may diſre-
gard charters or ſafines ex facie null, 63
their judgments in all caſes ſubjećt to the review of the Court of
Seſſion, 2. et ſeq.
if conveyance granted to claimant by a commiſſioner or fačtor loco tu-
torir, the commiſfion or factory need not be produced, 8, 9
diſregarding a motion to expunge, equivalent to refuſal, 3
their minutes ſhould bear names of objećtors, 11
their qualification. See 94talification.
H
fººmºſºmºmºmºs
Heirs apparent. See Apparent Heirs.
Huſbands may vote in virtue of their wives freeholds; and widowers of heireſſes in
virtue of the courteſy, 69. In former caſe, not neceſſary that free-
hold was acquired by ſucceſſion, 79
if huſband can vote on his wife's ſuperiority, as well as her property 70
I
Indemnity, ačts of, 34. Do they extend to thoſe who refuſe oaths to Govern-
ment 2 14o
Infeftment, in general, neceſſary to the conſtitution of a freehold qualification, 58
— three exceptions, 69, 78
for relief, or payment of ſums, does not entitle to vote, 71
muſt be taken and regiſtered one year before enrolment, 58
when the year is underſtood to expire, ibid.
diſpenſing clauſe in a charter ſufficient to ſupport an infeftment taken
at one place for ſeveral diſcontiguous parcels of land, 66
what expreſſions ſufficient, ibid.
if warrant granted by a commiſſioner, muſt the commiſſion be produced
at taking ſafine 2 67
what if precept of ſafine already exhauſted by a prior infeftment : ibid.
See Saſine.
Juriſdićtion of the Court of Seſſion, general over the Freeholders, 2 et ſeq. And
commiſſioners of ſupply, 28
Jury cannot judge queſtion of nominal and fićtitious in a trial for perjury, 112.
M
Magiſtrates of Royal Boroughs, their qualifications. See Qualification.
Minors, cannot vote at a borough elečtion, 156 &
Miſnomer fatal to a claim of enrolment, 18
N
Nominal and fićtitious, 90 to IIo
— the oath of truſt and poſſeſſion the only mode of trying this obječtion,
after lapſe of 4 months from the enrolment, 110. Otherwiſe not, Ioz
Notices, of the time and place of elečtion, at what hours to be publiſhed, Appen-
dix, No 2
O
Oath of truſt and poſſeſſion, 81. When can it be put 82
Freeholders refuſing it, to be expunged, 83
Oaths
17o I N D E X.
*º Evaſion has ſame effect, 83 to 89
Oaths to be taken by magiſtrates and counſellors at an annual ele&tion, 138
muſt be taken without qualification, 139
— do the aëls of indemnity extend to thoſe who refuſe to take oaths 14o
Obječtions to Freeholders ſtanding upon the roll muſt be lodged with ſheriff-clerk
two kalendar months before Michaelmas meeting, 13. And this,
whether founded on an alteration of circumſtances, or nominality, 14
— may be made, de plano, at meetings for election, 13
P
Peers of Scotland, their eldeſt ſons cannot be enrolled Freeholders of counties 122.
But may be counſellors of boroughs, 158. Note
Penalty on ſheriff, or ſlewart-depute, or ſubſtitute, negle&ting his duty in the execu-
tion of writs. Appendix, No 3. On any other perſon interfering, ibid.
Perjury, proſecutions for, in taking truſt-oath, I Lo et ſeq.
Poſſeſſion, neceſſary to the conſtitution of a freehold qualification 23, 81 et ſeq.
what ſufficient 2 90
oath of. See Oath
Q_
Qualification of a Freeholder, what neceſſary to its conſtitution, 23. et ſeq.
of Deacons in Royal Burghs, 141. et ſeq.
— of Counſellors, 148. et ſeq. Non-reſidents may be choſen, 148, et ſeq.
And counſellors in other boroughs, I 5 I
of a Provoſt, 151
— of Bailies, Dean-of-Guild, and Treaſurer, ibid
—— of thoſe entitled to be leeted for Bailies and Treaſurers, 153
——— — of Common Clerk of a Borough, 155
R
Regiſtration, dates of preſenting ſafines to the keeper of the regiſter, and of their
being marked in the minute-book, reckoned the date of regiſtration,
59. And even preſenting alone, where no minute-book kept, 5.9
imperfeót or partial regiſtration equivalent to none, 60. et ſeq.
Retours, none received as evidence of old extent, in queſtions of enrolment, but what
are prior to 16th September 1681, 24 º
do not prove old extent, unleſs it be ſet forth in the valent clauſe, ibid.
want of a valent cannot be ſupplied by inference or extrinſic evidence 25. et ſeq.
Reverſer does not recover his vote by a renunciation from wadſetter, but requires
a new inveſtiture, 78
S
Safine, inſtrument of, when liable to an apparent nullity, need not be regarded by
the Freeholders, 63. See Infeſtment, {
needs not be ſigned on each page, but on each leaf, 68
Sets of Royal Boroughs, how eſtabliſhed, 134. Convention generally cannot alter
them, 135. Nor can the Town-Council, 136. But long uſage may, ibid.
Sheriffs, their duty as to execution of writs, Appendix, Nos 2. and 3.
Supply. See Commiſſionerſ of Supply. -
Teinds,
I N D E X. 171
T
Teinds, not neceſſary that a perſon, whoſe lands are valued at L. 4oo, ſhow a right
to his teinds, though the teinds have once been ſeparately valued, 5 5. et ſeq.
Title to proſecute perjury under ſtat. 7 Geo. II. § 3. 119
Truſt-Conveyance, with power to ſell, does it authoriſe ſtriking the granter off the
rol. 2 See Alteration of Circumſtancer.
Truſt and Poſſeſſion, oath of. See Oath.
U
Union of lands, although diffolved by alienation of a part, infeſtment may ſtill be
taken in virtue of the diſpenſing clauſe, 66. What expreſſions ſufficient, ibid.
V.
Valued rent, what P 28 & * *
how aſcertained and divided, ibid, and 37 ee
is a regular decree always neceſſary 237. et ſeq.
what is the regular mode of dividing valued rent P 41
— articles, once divided, cannot be re-united, and divided of new, as
in cumulo, 42. et ſeq. What if claimant has, at all events, a ſufficient
qualification f 48
— is the re-union validated by acquieſcence 248
is the diviſion of ſuch irregular cumulo validated by acquieſcence 49
e? /ēg.
do º, duties payable to the Crown receive a ſhare 51 et ſeq.
Vaſſal, one is neceſſary to authoriſe enrolment upon ſuperiority, 8o. But both rights
may be in ſame perion, if not conſolidated by reſignation ad remanentiam, ibid. .
W
Wadſet proper, entitles to vote, 71 ---
— of a fee, burdened with an abſolute and total liferent, does not qualify, 73 ,
et ſeq. sº, e
what if wadſet granted to one in liferent, and another in fee 76
Writs, how tranſmitted to Sheriffs, and by them to be publiſhed. Appendix, No 3.
*
*
T H E E N D. :
-
E R R A T A.
Page 10. line 5. for “Freeholder” read “Freeholders”
— 1 1. – 9. after “This” read “part”
– 25. title, for “Qualifications” read “Qualification”
, - 66. line 18. for “partem” read “parte.”
(VOL. II-PART II.)
CONTAINING
T H E C A S E S
RELATIVE TO
E L E C T I O N S.
DECIDED IN
THE COURT OF SESSION,
AS
REPORTED AT LARGE IN THE COLLECTIONS OF DECISIONS.
ARRANGED. .
By WILLIAM MAXWELL MORISON, Esq: Advocate.
AD VERTISEMENT.
IN the following Cases, the Editor of the Dictionary
of Decisions, (by whose permission they are placed here)
:makes frequent reference to his Synopsis and APPENDIx.
In these, which accompany the Dictionary of Decisions,
the Reader will find several particulars on the subject of
Elections, which, from circumstances, could not be in-
cluded in this Collection.
E. R. R. A. T.A. .
In the fifth line of No 167. delete “ followed,” and write “fettered.”
In the fifteenth line of No 169. delete “concern,” and write “ union."
In the fixth line of No 170. delete “claim,” and write “clause.”
In No 171. for “claim of dispensation,” write “clause of dispensation.”
C O N T E N T S.
(vol. II—Part II)
D I W I S I O N I.
Privileges. ºt- Tº * tº-
D IV ISION II.
The Qualification of Freeholder possessing a Forty Shilling land of old ex-
tent. * * >
SECT, I. Evidence of the old extent º sy
SECT. II. Can Retours be divided ?–Retours of Church Lands.—Of He-
ritable Offices.--Objections to Retours -- *
D I V I S.I O N III,
The Qualification of Freeholders possessing lands liable in Public Burden.
for L. 4oo Scots. .
SECT. I. How far Teinds are considered in questions concerning the legal
Valuation * * , - . _ -
SEct. II. What evidence must the Freeholders receive of the Valuation
SEct. III. By what Rule are cumulo Valuations to be divided tº”
SECT. IV. What Subjects are to be Valued & º -
SECT. V. How a Division of Valuation may be set aside.—Every Party
interested in a Division ought to be made a Party to it.—Er-
roneous Division tº e dº * . g-
SECT. VI. Who may act as Commissioners of Supply.—Time of their
Meeting.—Consequences of their refusing to meet or divide
Sect. VII. Where the Proprietor has alienated a part of his estate
& Päge
2.
II
43'
i
*
67-
74.
82.
96.
99
II2.
I22
2. CONTENTS,
D I V IS I O N IV.
3.
Decisions common to Qualifications upon the old extent and valuation. Page
SECT, I. Vassals in lands forfeited by the Superior, &c. &c. &c. - I24.
SECT. II. Adjudger.—Wadsetter º tº -º 187
SECT. III. Nominal and Fictitious * ºt - ſº 2O3
SECT. IV. Trust Oath sº tº tº tº 227
SECT. V. Freeholders Hºust be infeft on proper Titles, and their infeft-
ments recorded year and day before enrolment cº 236.
SECT. VI. Apparent Heirs sº º ſº tº 25 I
SEcT. VII. Husband in right of his Wife tº- gº. dº 26o
SECT. VIII. Splitting the Superiority º tºº. ſº 267
Sect. IX, Alteration of Circumstances tº ( e. “º- 274.
D. IWF I S I O N V.
Procedure in the Court of Freeholders.
SECT.I. Time of holding the Court.—Can Freeholders be compelled to
* meet?—Quorum.—Calling the Roll and choice of Preses and
Clerk & ſº - - - w º 28o.
SECT. II. Claim to be enrolled º º tº - 282
SECT, III. Powers of the Court of Freeholders tº. & A. dº is 2.94.
D I V IS I O N WI.
*.
Summary Complaint to the Court of Session.
SECT. I. Who must be called in a Summary Complaint, &c. &c. &c. 3O9.
SECT. II. Upon what grounds is a Complaint admitted tºº º 3I4.
SECT. III. Of Objections not stated, or Evidence not produced, to the
Freeholders . tº ºt $º º gº wº 3.19.
SECT. IV. Whether the Court of Session may admit Evidence Rot laid be.
fore the Freeholders tºº. tºº dº 323.
SECT. V. Consequence of withdrawing Opposition to a Complaint.—What
Fine in a Joint Complaint.—Complaint for Bribery.—Com-
plaint for undue Enrolment ºl. º, - 333
T) I W IS H O N VET.
ren, .:y for a. Ealie Returp. tº. g & A– tºº. gº º *: 334
M E M B E R of P A R L I A M E N T.
WHEN the personal attendance of the lesser Barons in Parliament was
at first dispensed with by James I., and the privilege of sending Commis-
sioners was substituted in place of that attendance, all the vassals of the
Crown, however small their freeholds, were entitled to vote in the election of
these Commissioners. This privilege was afterwards, by James VI., limited to
those who had a forty-shilling land in free tenantry, and resided within the
shire; and was again, by Charles II., extended to those possessed of lands
holding of the King, often chalders of victual, or L. Iooo Scots of real rent.
Afterwards, however, by the statute 1681, which is now, in material points,
the rule for determining the qualifications of elections, it was enacted, that
none should be allowed to vote but those “who stood publicly infeft and
possessed of a forty shilling land of old extent, holden of the King or Prince,
distinct from the feu-duties in feu-lands; or where the extent did not appear,
stood infeft of lands liable in public burden for his Majesty's supplies for
L. 450 of valued rent, whether kirk lands now holden of the King, or other
lands holding feu, ward, or blanch, of his Majesty, as King or Prince of Scot-
land.” -
The only exception from the regulations of this statute, is the peculiar
constitution of the county of Sutherland, where, by immemorial and conti-
nued usage, the right of electing, and being elected, is competent to vassals
holding of a subject superior. By statute 16th, Geo. II., such vassals, however,
must be possessed of lands paying public burdens to the amount of L. 200
Scots of valued rent. And the same statute contains certain special enactments
regarding those anomulous qualifications.
with regard to the manner of keeping the roll of electors—the time of
holding the annual Michaelmas head-courts—the form of procedure in those
A
2 MEMBER OF PARLIAMENT. DIV. I.
No #.
No 2.
courts—the remedy for those aggrieved by their decisions, by summary com-
plaint to the Court of SESSION.—and the penalty if such complaint is dismis-
sed—the statute 16th Geo II. cap. I I. is the rule in all those particulars.
Corruption and perjury in the electors are restrained by penalties contained
in act 2d, Geo. II. cap. 24. ; and the penalty for the Clerk of Court making
a false return, is statuted by act 7th, Geo. II. cap. 16.
Fol. Dic. v. 3. p. 4or.
I) I V IS I O N I.
Privileges.
1687. july. Touch against The HERITORs of Stirlingshire.
Found. That heritors and liferenters holding of the King's vassals, ought not
to contribute with these their immediate superiors, for the fees of commis-
sioners to the Parliament, seeing they had no vote in the election, and should be
as free as the vassals of noblemen and bishops, notwithstanding of the general
clause in the late act of Parliament. (1681.)
Fol. Dic. v. 1. p. 573. Harcarre, (SUMMONS.) No 932. p. 261.
—-mº ºm--
1708. February 17.
Lupovick GRANT of that Ilk, against The EARL of SUTHERLAND.
Is a process at the instance of the Laird of Grant, against The Earl of Suther-
land, the LoRDs did not sustain the privilege of a member of the British Parlia-
ment, which exempts from legal pursuits in the time of Parliament, to hinder
circumduction of the term against the Earl of Sutherland, for not reporting
a commission which an advocate compearing, for his Lordship took a day for
but they superseded extract till the 1st of June. ū
*
Fol. Dic..v. I. p. 572. Forbes, p. 242.
5
Div. I. MEMBER of PARLLAMENT. - 3
*** Fountainhall reports this case.
THE Lady Dowager of Down being debtor to the Laird of Grant in a consi–
derable sum of money by bond, and being thereafter married to the Earl of
Sutherland, and now deceased, Grant pursues Sutherland for payment of her
debt, on these grounds, that he was a vicious intromitter with the Countess's
jewels and parapharnalia, to a great value, and was also lucratur by the mar-
riage, over and above what may be reputed a competency ad rustinenda onera
matrimonii, and to defray the expense of the marriage and her funerals; and
having referred the whole to the Earl's oath, who being at London, a commis-
sion was craved by his lawyers to depone here, which was directed to be exe-
cuted by the Earl of Seafield, Chancellor of North Britain, but being neglected
to be reported, the term was circumduced against the Earl for not deponing;
whereupon a bill was given in for his Lordship, representing, that he being
a member of the Parliament of Great Britain, he was absent reipublica, cauſa,
and could not be convened in any cause, or obliged to answer during his attend-
ance there. Answered, Imo, They knew no such privilege competent to the
Peers sent up, for they had it not when the Parliament of Scotland used to sit;
and at most, it could only extend to new actions raised against them, and not to
such as were depending against them before ; 2do, His procurator had craved
a commission, and did plead no such privilege, et quilibet potent renuntiare favo-
ri pro se introducto, and so he cannot retract now. Replied, The advocate had
no mandate from him to do it. THE LORDS would not repone him now after
a commission sought, but stopped extracting of the decreet of circumduction till
the Ioth of June, that my Lord might either depone at home, or on a commis-
sion, if he pleased; to have loosed the circumduction, was to make Grant lose
his only mean of probation, if my Lord died medio tempore; whereas now, in
case of his decease before deponing, the decreet stands firm against him; by
which middle temperament, the LoRDs shunned deciding whether they had the
privilege of not being obliged to answer as absentes reipublica causa.
Fountainhall, v. 2. p. 432.
—an ºsm-
1709. january 5. LADY GREENock againſt Sir John SHAw of Greenock.
º
THE LORDs ordered a process at the Lady's instance against her son, Sir John
Shaw, to be enrolled, albeit he was absent at London as a Member of Parlia-
ment, and claimed his privilege ; because, the privilege that Members of Parlia-
ment cannot, during the sitting thereof, be sued at law, hinders not to expede
the preliminaries or preparatories of processes, which pass of course.
june 22.--THE LORDS, January 1799, having ordained a process at the in-
stance of the Lady Greenock and her son, to be enrolled, albeit the defender was
A 2
4 MEMBER or PARLIAMENT. Drv. I.
attending the Parliament, in respect the advocate that was marked for him at the
first calling, refused to take out the process ; when the cause came in by course
of the roll, the defender alleged no process, because, he had neither seen the
process, nor was obliged to see or notice it, during the sitting of the Parliament,
conform to the 12th and I 3th William III. cap. 3.
Replied for the pursuer, That statute doth not expressly provide, that process
should not be commenced and prosecuted against members of Parliament, during
the sitting thereof, but only that suits may be commenced and prosecuted after
the rising of Parliament; which argument a contrario, and from implication,
ought to be understood of commencing and prosecuting cum effectu by judicial.
acts, that oblige the party to appear in judgment, and make defences under
a certification in case of failzie; and not of the preliminaries of a process for
bringing it into judgment, which are performed by the clerk, without trouble or
diversion to the party. And albeit by the English law, effectual prosecution.
commenceſh from the day to which the ſubpoena is served, or at which the de-
fendant is to appear, and give in his answers or defences; yet in Scotland, where
the first diet of appearance is not peremptory, and the defender is not obliged
to put in defences till after the usual inducia of seeing, returning, and enrolling
the process, a cause cannot be understood commenced till after elapsing of that
preparatory interval, which is not observed in the English form, to which the
statute is adapted. 2do, The most that the defender can claim, is only to see the
process six days, without any new enrolment; seeing after returning of the pro-
cess, he is presumed, and ought to be ready. The enrolment was not introduced
as a privilege to the defender, but only to prevent anticipating of causes, by
some pursuers unjustly getting the start of others whose processes were first re-
turned; and the rest of the lieges who are pursuing causes have no ground of
complaint, seeing the Lady Greenock's hath already run the course of the roll,
by order of the LORDs' interlocutor. *
Duplied for the defender, When a process is returned by an advocate as not
for the party; or when the advocate marked for the party refuseth to take out
the process, it ought to be called de nozo, and enrolled in the regulation roll.
The act of Parliament doth not distinguish betwixt preparatory interlocutors, and,
those in cauſa ; and though it may be questioned, if citations passing of course,
may be sustained, sure it is, that no interlocutor of a judge can be pronounced
against a Member of Parliament claiming his privilege. So in the case of Sir
Andrew Kennedy against Sir Alexander Gumming, the LoRDs would not so.
much as ordain Sir Andrew's petition offered against Sir Alexander, to be seen and
answered, in respect the latter was attending the Parliament. See. No 6. p. 8567.
THE LORDs sustained the dilatory defence founded on Sir John Shaw's being.
a member of Parliament; and therefore found the process must be given out to.
be seen and enrolled again in common form.
Fol. Dic. v. 1. p. 572. Forbes, p. 298.-335.
Div. I. MEMBER of PARLIAMENT. 5
*** Fountainhall reports this case.
january 6, 1709–Dame Heleonora Nicolson pursues Sir John Shaw of
Greenock, her son, in a process for payment of her bygone jointure; and hav-
ing called her summons, and an advocate being marked, she gave out her pro-
cess to him to be seen, who returns it back to her doers, without a return in
writing on the back of it; for want whereof she could not get it enrolled, and so
requires him by a notary before witnesses to give her a return in common form,
which he refused, in regard Sir John having gone to attend the Parliament as
a Meinber in the House of Commons, he was abſen'ſ reipublica cauſa, and not
obliged to answer in any process. Upon this, my Lady gave in a bill, craving,
that his advocate might be ordained to give a return of her process, to the effect
she may get it enrolled; and, in case of his refusal, to cause enrol it of the date’
of the instrument and protest taken against him. Anſwered for Sir John Shaw,
He opponed his privilege, which secured him against any procedure, either in
form or matter till his return ; and the law, by the regulations 1695, had pro-
vided a remedy in this case, where none appeared for a defender in a process to
crave a sight, it was a summons in absence to be enrolled in the regulation-roll,
which my Lady might do ; and no sort of interlocutor can be pronounced:
against him during his attendance of the Parliament. The design was to stop its
enrolment till the Summer-Session, and then it could not come in by the course'
of the roll till November 1709, and then his Parliament privilege revived; and
if he had interest to get himself chosen to the next triennial Parliament again, .
he might postpone and delay her long enough. Replied, It was time enough to
found upon his privilege, when my Lady insisted in her cause. All she craved
at present was only the initialia et praparatoria judiciorum, which neither in-
fringed nor encroached on his privilege, if he had any; and when she craved
a decreet, then was the season to propone his exception, as impeditiva litir in-
gressus, I am not bound to answer, because I am a member of Parliament. Some
of the Lords doubted if there was any such privilege competent, for it is cer-
tain, when we were an independent sovereign kingdom by ourselves, the mem–
bers of the Scotch Parliament had no such privilege. THE LORDs, by plurality
of six contra five, found this defence not receivable hoc loco, and that the privi-
lege could not extend to this case; and therefore ordained the cause to be in-
rolled of the date of the instrument.
Fountainhall, v. 2. p. 478. ,
—sº-----
1759. November 15. GeoRGE Livingstos against MoRison of Prestongrange.
IN the action at the instance of George Livingston against Prestongrange, the
LoRDs sisted process against the defender, as being a Member of Parliament, al-
No 3.
No 4,
.6 MEMBER of PARLIAMENT. Drv. H.
No 4.
No 5.
A Member of
Parliament
allowed to
claim his pri-
vilege to stop
progess a-
gainst him,
although he
sisted himself
tº initio litis,
beit he was not yet attending the Parliament; in respect the Parliament was sit
ting, and he claimed his privilege, and represented that he was under the neces-
sity to go and attend it. *
Fol. Dic. v. I. p. 572. Forbes, p. 353.
*** Fountainhall reports this case.
LivingSTON having been a partner in the glass-manufactory at Morison's Ha-
ven, and their treasurer, he advanced and debursed, for the use of the society,
L. 1275 Scots, and pursues Prestongrange, as he who had acquired all the shares,
for payment of the balance of his account ; and he refusing to answer at this
time, in respect of his privilege as a Member of the British Parliament, and just
going away for that end, it was objected, The Parliament not being yet set down,
his privilege took no place. Anſwered, They had, the allowance and interval of
14 days before their sitting, and as much after, for their going and coming, so
his privilege was already commenced and existing. Some moved the question,
whether a Member not going, but staying at home, could claim his privil
lege, as if he were actually attending? It was argued on the one hand, that the
privilege was given in respect of their absence, as absent republica causa, and
not to divert them from attending and giving advice in the public affairs of the
nation; but if they did not go to Westminster, but staid at home, the cause Of
the privilege ceased, et cerrante cauſa privilegii cessare debet effectus. It WaS
reasoned on the other side, that he behoved to be once received in the House,
and sworn as a member; but after that, if he was absent, it did not deprive
him of the privileges annexed to the said office and trust, but made him only
liable to, and censurable by, the Parliament for his withdrawing. The Losps
waved this point, in regard it was informed he was actually going to London to
attend the Parliament. Some thought this privilege a great remora and Stop to the
administration of justice, seeing it is pleaded not only to extend to the 61 mem-
36ers from Scotland, but to as many servants as they please to take with them :
so that bankrupts have no more to do for protecting their persons, but to get
themselves listed by collusion under the name of their attendants.
g Fountainhall, v. 2. p. 526.
—amam-
17 to. February 17. sº
Captain HøNRY BRuce against Mr WILLIAM DALRYMPLE of Glenmuir, and
ALEXANDER INGLIS.
Is the action at the instance of Captain Bruce against Mr William Dalrymple
and Alexander Inglis, mentioned December 23. I rog, voce PART and PER-
ris ENT, the LoRLs allowed Mr William to claim his privilege of a Member
of Parliament, to stop process, albeit he had sisted himself in initio litis, and pro
10IV. I. MEMBER of PARLIAMENT. 7
poned defences in ãusa without founding on his privilege, which the pursuer
contended was a tacit renunciation of the privilege, since primuſ actur judicii, eſt
judicis approbatorius. For the LoRDs seemed to be of opinion, That this was not
of the nature of an ordinary declinature, or like the privilege of exemption from
answering before inferior courts, that is competent to members of the College of
Justice, that may be renounced expressly or tacitly. -
Fol. Dic. v. I. p. 572. Forber, p. 493.
– sº . . . ººm---
KENNEDY againſt CUMMING.
1712. june 25.
SIR ANDREw. KENNEDY having, in April 171 I, obtained Sir Alexander Cum-
ming of Coulter's decreet reversed, and himself reponed-to his Conservator office
by the House of Peers, and obtained their remit to the Lords to tax his expenses,
he applied in June 1711, to have them modified, and gave in an account of
L. 1800 Sterling. But it being anſwered that Sir Alexander was out of the
kingdom, and not bound to answer till cited, the Lords ordained him to be sum-
moned on 60 days, which put off the summer session, and brought it to the 1st
of November, at which time Sir Andrew Kennedy renewing his claim of ex-
enses, Sir Alexander founded on his privilege as a Member of Parliament;
which being allowed by the Lords, though the English Parliament was not then
set down, Sir Andrew protested of new for remeid of law, and finding it would
be tedious to bring it in formally, he was advised by the English lawyers to
table it by way of summary complaint ; whereon he obtained a deliverance, or-
dering the Lords of Session forthwith to tax his expenses, and direct their pay-
ment. On this he now gives in a bill to the Lords, deducing all the steps afore-
said, and craving their modification of expenses after 14 months delay. THE
Lorps found, by this last ordinance the Peers had laid aside his privilege of
Parliament, and therefore appointed Sir Alexander Cumming Summarily to an-
swer; for if it should be delayed till November, he would of new again found -
upon his privilege ; , but the Peers seem to have waved it as not competent in
this case. . g s - g
Fol. Dic. v. I. p. 572. Fountainhall, v. 2, p. 743,
*** Forbes reports this case :
A
1712. june 26–SIR ANDREW KENNEDY set forth, in a petition, an order -
and decree of the House of Peers, dated 19th April 1711, reversing the Lords'
decreet in favour of Sir Alexander Cumming, and ordering their Lordships to
direct expenses in the suits mentioned in the said order, to be taxed according
to the course of the Court; pursuant whereunto be had, by appointment of
their Lordships, 21st July 171 I, summoned Sir Alexander Cumming. THE
Lords, 9th November 1711, upºn Sir Alexandc:’s pleading his privilege of Par-
\
No 5.
and proponed
peremptory
defences
without
founding on
the privilege,
No 6.
A party had
obtained re-
versal in the
House of
Lords, of a
decree of the
Court of Ses-
sion, with a
remit to that
Court to tax
the expenses.
, The other
party pleaded
privilege as a .
Member of
Parliament.
Disallowed,
8 - MEMBER OF PARLIAMENT. Div.I.
No 6.
A
No 7.
The Lords
allowed a
creditor to
raise, use,
execute,
and register
inhibition,
without ar-
restment, and
also to exe-
cute adju'iica-
tion, against
a Callt loner,
though a Pecºs
of Parliament;
liament, sustained his plea, notwithstanding he had waved his privilege, by an-
swering before the House of Lords, and could not reassume it, especially against
the execution of a sentence passed upon compearance. This occasioned the pe-
titioner to protest for remeid of law; but, upon better advice, he gave in a
summary complaint to the House of Peers, as a more expeditious and less ex-
pensive way to obtain remedy, who thereupon directed a second order to the
Lords of Session, That they should forthwith tax the said expenses, and direct
the same to be paid to the petitioner, pursuant to the order and judgment
above-mentioned. Therefore the petitioner prayed their Lordships to resume
the consideration of the affair, and his account of expenses, and forthwith to
proceed to determine therein, and order payment thereof.
Answered for Sir Alexander Cuming; He conceived himself not bound to
answer to the petitioner's claim, unless he were cited, and had the induciae le-
gales, as the Lords found last year upon the same question; nor can the former
summons support the present petition, because the Lords have determined upon-
a point of privilege belonging to Sir Alexander, as a Member of the House of
Commons; and Sir Andrew having protested for remed of law, the Lords are
functi, and he is out of the field, until that protestation be regularly discussed.
For the order now insisted on, viz., forthwith to tax, is to be understood in civil
and habile terms, that is summarily, without abiding the course of the roll, but
never without a citation and libel, which is essentially and previously necessary
to the obtaining of any decerniture whatsoever upon the most summary com-
plaints, even against persons present, unless there were an action depending, in
which the complaint is receivable by way of incident, which cannot in this case
be said, seeing the former dependence in the principal cause is determined by
a decree. -
THE Lords found, That Sir Alexander Cumming must answer to the peti-
tioner's claim of expenses, without necessity of any further citation.
Forbes, p. 604,
1713. November 28. Colonel John MIDDLETON and his LADY, Supplicants.
Upon a bill given in by Colonel Middleton and his Lady, representing that the
viscount of Kilsyth stood bound to them as cautioner in the requisition of an
heritable bond for 12 coo meiks, granted by the Lairds of Neistoun, older and
younger, and that the seven years, within which, by the act 5th Parl. 1695,
diligence is to be done against the cautioner, were here expired; and craving,
that notwithstanding the Viscount's privilege, as one of the sixteen Scots Peers
of Parliament, the Lords would either allow suitable diligence, at the petitioner’s
instance, to pass against the Viscount, in the terms of the statute aforesaid, or
else declare that the seven years mentioned therein is to be computed tempur
utile, subducing therefrom the time of the privilege.

3DIV, I. - MEMBER or PARLIAMENT. 9
THE LORDs having considered the act of Parliament 1695, anent principal
and cautioners, whereby it is provided that cautioners should be bound for no
longer than seven years, and that what legal diligence by inhibition, horning,
arrestment, or any other way, should be done within the seven years, by credi-
tors against their cautioners, for what fell due in that time, should stand good,
and have its course and effect after expiration of the seven years, as if the said
act had not been made ; they found that the petitioners might raise, use, exe-
cute, and registrate inhibition, without arrestment, and raise, use, and execute
adjudication, and call the same, reserving to the Viscount of Kilsyth, at call-
ing thereof, to propone against pronouncing act or decreet thereupon ; and like-
wise raise horning without poinding or arrestment, and charge thereupon, 6d
hunc effectum only, to entitle the petitioners to the benefit of the diligence men-
tioned in the said act. - a
Fol. Dic. v. 1. p. 573. Forber, M.S. p. 7: .
1714. January 20.
GEORGE LocKHART of Carnwath againſt The CREDITORS of KERSEw ELL.
George LockHART of Carnwath, a real creditor upon the estate of Kersewell,
raised reduction of a decreet of ranking of the creditors, upon several grounds.
His first reason of reduction was, that there were interests of some creditors pro-
duced and ranked in the decreet after the 7th February 1711, the date thereof,
and yet no decreet was put in the minute book, which ought to have been
done, seeing the interlocutors preferring the admitted parties are all now sen-
tences; yea in the case of Glendinning of Partoun against Irvine of Drumcol-
tran, the Lords opened a decreet in toto, because extracted before it was read
in the minute bock. Now it is yet more absurd to extract an old decreet after
new preferences, which were plainly a passing from it. See PRocess.
Answered for the defenders ; Where, after a decreet of ranking pronounced,
giving direction and rules for classing the creditors according to their several
rights and preferences, another creditor appearing is preferred in a new class or
order by himself, a new decreet of ranking and preference used to be put up in
the minute book; but, where the interests of other creditors can be brought
within the compass or order decerned, and are ordained to be ranked with other
creditors in particular classes already ranked, no new decreet ought to be put
up, but the decreet goes out of the date of the great rule, giving the admitted
creditors preference in such classes and order. - }
THE LORDS repelled this reason of reduction, that, posterior to the date of
the decreet of ranking, the interests of some creditors were taken in and ranked,
without putting up a new decreet in the minute book, in respect that, by the
B
No.7.
also to raise
horning, with .
out poinding
Or a I'e St-
ment ; to *
the effect of
preserving
the recourse
against the
caut loner, 1m.
terms of act
5th Parl.
I 6 95.
No 8.
A Niember of
Parliament
compearing $
by his law-
yers in a
ranking, who
produced his
interest,
which got a
place in the
ranking, was
found ex-
cluded by
the defence
of res judicata,
from redu-
cing the de-
, cree of rank :
ing.

IQ. MEMBER or PARLIAMENT. IDIV. I.
No 8.
taking in and ranking of the said interests, there was no new scheme or class.
made in the said ranking, but those interests were only joined into the classes
of the creditors formerly ranked.
The pursuer insisted upon this ſecond reason of reduction, That several rights
of the creditors were preferred in the decreet to his interests, which were pre-
ferable to all. *. -- -
Anſwered for the defenders; The pursuer is preferred in the order sought by
his procurators and lawyers compearing for him and producing his interests,
which must have the effect of res judicata, and any thing to be said against it
was either competent and omitted, or proponed and repelled. -
Replied for the pursuer; Competent and omitted cannot be obtruded against
him, because he was absent reipublica causa, attending the Parliament as a Mem-
ber of the House of Commons, when the decreet of ranking was pronounced.
And seeing he had not renounced his privilege of Parliament, nor given any
special mandate to any lawyer to compear for him, what was then judicially
done in his absence is void and null. For though in the ordinary judiciary pro-
cedure, an advocate's gown be his mandate, yet, in many things, the bare com-
pearance of an advocate will not bind his client, as, by confessing a thing for
him which requires the party's judiciary confession to be signed by him, or com-
pearing for one absent out of the country; and the privilege is of no less im-
port, yea hath this farther, that it stops procedure even of a process legally com.
menced. . . -
Duplied for the defenders; Since the privilege of Parliament could not hin-
der the pursuer to compear in the ranking, and crave his just preference, it can
never annul the decreet, pronounced upon his insisting or craving. In a com-
petion of creditors, every one, with respect to his co-creditors, is a pursuer.
'Albeit the privilege of Parliament proponed might stop process against the pri-
vileged person, yet where any member of Parliament claims a preference in
prejudice of other creditors, no privilege can hinder these creditors to defend
their interests, and compete or hinder sentence to follow upon such a competi-
tion. It is not necessary here to debate how far an advocate may wave the pri-
vilege, seeing it is no stop to process, unless it be claimed, and may be tacitly.
omitted or waved without a positive renunciation, as the pursuer did in this case,
by suffering his lawyers to produce and insist upon his interest, and afterwards
extracting the decreet, and putting it to execution, which was an homologation.
so direct as excludes all pretence of error or mistake. *
THE LoRDs sustained the defence of res judicata against the pursuer, in re-
spect that it was not competent to him upon production made by him in the de-
creet of ranking, to crave a new preference to the creditors preferred to him by.
that decreet. - — w .#
- Fol. Dic. v. 1. p. 573. Forbes, M.S. p. 15.
-SECT. I. - MEMBER or PARLIAMENT, If
714. july 1. A. against B.
THE LORDs gave this instruction to the clerks, That bonds, wherein members
of Parliament are co-obligants, may be registered in common form.
Fol. Dic. v. 1. p. 573. Forber, M.S. p. 73.
D I v Is I O N II.
The Qualification of a Freeholder possessing a Forty
Shilling Land of old extent. -
S E C. T. I.
Evidence of the old extent.
*745. january 18. — against FREEHOLDERs of RENFREw.
Upon a complaint against some freeholders in the shire of Renfrew, claiming
votes in the election of a Member of Parliament, -
The Lords found, That a retour of several lands valued together, mentioning
the several values in the descriptive clause, and only the sum total in the valent. ,
which sum agreed with the particulars in the description, was a sufficient evi-
dence of the value of these particular lands. *. -
- - Reporter, Arnition. • . - - -
Fol. Dic. v. 3. p. 403. D. Falconer, v. 1. p. 48.
B 2 -
No 9,
No 10.
I2 f MEMBER OF PARLIAMENT. DIv. II.
No 1 1.
A retour
where the old
extent is not
distinct from
the feu-duty,
does not give
a qualifica-
tlon ,
No 12.
Lands con-
tained in one
retour valued
in cumulo in
the valent
clause, but
having their
separate va-
lues expressed
in the descrip-
tive, and the
total agree-
ing, entitle
the several
heritors to
Vote.
The objection
that the prin-
cipal retour
was not pro-
duced, but
only an ex-
tract from
Chancery,
was repelled.
1745. January 19, FREEHoLDERs of LANARK against HAMILTON.
HAMILTON of Wishaw produced a retour of his lands, wherein the old extent.
was not distinct from the feu-duty, and which bore the lands to be ecclesias-
ticae : - -> *.
It was found not to entitle him to a vote.
Hamilton of , had, in his own right, lands valued at L.240. and had
married one of three haire Pereioavis, who had been infeft in lands valued at
L.73, and the two other sisters being dead, his wife was their apparent heir.
THE LORDs found he might join his wife's interest with his own to make up
his valuation, but could not vote on her right of apparency. -
Fol. Dic. v. 3, p. 405. D. Falconer, v. 1. p. 48.
1745. February 5. -
CoLouhoun of LUSS againſt The Voters of the SHIRE of DUMBARTON.
SEveRAL freeholders of the shire of Dumbarton, claimed votes in the election
of a Member of Parliament, on their estates being retoured to forty shillin glands,
in a retour of the dukedom of Lennox and barony of Kilmarnock, 25th April
1662. -
Objected, That the principal retour did not appear, and there was only a copy.
of it in the Chancery books. •
Answered, This copy in the books of Chancery is what in law is called a re-
tour, and makes evidence in all Courts.
THE LORD's repelled the objection.
Objected to the heritors of the dukedom, That their lands, which are severally
mentioned as of such a value in the descriptive clause, are only in cumulo valued
in the valent, which, besides, exceeds the particular values in LI : Io: 8d.
so not agreeing with, cannot be supported by them. . . . . . .
Answered; The difference is so small, as to be obviously only a mistake in
the calculation. . . . - - -
The Lords sustained the retour.
Objected to the heritors of the barony, That the several lands mentioned in
the descriptive clause, are only valued in cumulo ; and though these clauses
agree, yet the mill and mill lands of Mewie are mentioned in both clauses with-
out any value in the description, and make part of the cumulo valuation; and ,
if any part of this value is applicable to them, the several lands cannot be of the
same value they are described. . { - -
, and
*e
3.
Sect. 1. MEMBER OF PARLIAMENT. is
J
Anſwered, Mills were not extended, and the mill lands, consisting of two No 12.
aCres, probably never were, besides the several lands are repeated in the valent,
with their values in the same manner as in the description, and then the total
value in cumulo is given in answer to the brieve.
The Lords sustained the retour, and repelled all the objections.
Act. Lockhart. Alt. H. Home & 9. Campbell, jun. Reporter, Kilkerran.
- Fol. Dic. v. 3. p. 403. D. Falconer, v. I. p. 61.
*-susº me—
1745. February 22. SIR Michael Stewart against Hugh CRAwford.
- . No 13.
Hugh CRAwford, writer in Edinburgh, standing on the roll of electors for ..º.º.
the shire of Renfrew, an objection was made to his title, which the Lord Ordi- tours can be
nary, before whom the complaint came, on advice with the Lords, sustained, tº
on which he gave in a reclaiming petition, giving this account of the titles, lands.
whereon he claimed to vote. . . .
He is infeft in the fifty shilling land of Brown's Calderhaugh, the extent
whereof appears by a charter of Queen Mary, 6th September 1559, as per re-
gister of charters, book 21. numb. 474, to John Brown of Coultermains.
Richard Brown of Coultermains was served heir in these lands to John,
21st June 1712; and, though his retour is lost, there remains an authentic do-
cument of it in the responde books in Chancery, book 3, where it is entered, as
all other retours are, and bears the lands to be a fifty shilling land, which is
supported by the tax roll of the shire, dated 20th January 1613, lying amongst
the records in the Laigh Parliament House. * *.
Further, Alexander Glen of Bar was, 23d January 1610, served heir to his
brother in the two and a half merk land of Auchincreuch, and fifty shilling
land of Calderhaugh, ten shilling land of Langlee, ten shilling land of Cruicks
and Johnshill, and ten shilling land of Knockbarmock, which is precisely the
same description with the charter founded on, the glens holding feu of Brown of
Coultermains; and this retour is recorded in Chancery, book 4. fol. 324 ; and
in the descriptive clause, values all these lands at L-4:3:4d. which agrees ex-
actly with the other documents; but the valent retours them to be worth
L.22:16:8d. and 85 stone of cheese, viz. the feu-duty paid to Coultermains. -
The petitioner alleged, That the meaning of the clause in the statute, enact-
ing, That no person should be entitled to be enrolled on the old extent of his
lands, unless such extent were proved by a retour prior to 16th September 1681,
was, that no division since of the old extent should be sustained, and that no re-
tour since should be held as sufficient evidence of the old extent. He pleaded,
That retours were the lowest kind of evidence allowed by the act, but that bet-.
ter kind of evidence was not excluded; and frequently better evidence might.
be got than retours, as in this case, . . -
I4 MEMBER or PARLIAMENT. Drv. II.
No I 3.
No 14.
No 1 5.
Temporal
lands, where-
of the old ex-
tent is not di-
stinct from
the feu-duty,
do not entitle
to Vöte.
.*
“tea persolverit.”
Anſwered, That the statute precisely confined the evidence to retours.
THE LORD's adhered. - -
Act. A. Macdowal. Alt. H. Home. Reporter, Lord Arniston. Clerk, Forter.
Fol. Dic. v. 3. p. 402. D. Falconer, v. I. p. 84.
-* ... ºr -
1745. February 22. *
Sir MICHAEL STEwART againſt ARCHIBALD CAMPBELL of Ellersly.
ARCHIBALD CAMPBELL of Ellersly, Writer to the Signet, claimed to stand up-
on the roll of freeholders for the shire of Renfrew, on the title of his said lands,
all the old charters whereof bore them to be a five-pound-land; and a retour
was produced, in which the descriptive clause also bore them to be a five-pound-
land; but, in the valent, they were retoured to be worth one penny.
It was urged, That the retour was of a wadsetter, who held the lands of the
reverser, for a blench-duty, with the casualties discharged; so that the Jury had
only considered the burden upon the vassal, and made that the value; but the
true extent appeared from the description supported by the charters.
THE LORD ORDINARY, on advice with the Lords, ‘Found, that the retour
founded on did not instruct the old extent of the lands, in terms of the act of
Parliament; and the LoRDs, on bill and answers, adhered.’
Reporter, Lord Artifton. Act. 4. Macdowal. . Alt. Wallace.
-- Fol. Dic. v. 3. p. 402. D. Falconer, v. 1. p. 83.
**.
1746. - june 14.
FREEHOLDERS of Linlithgowshire againſt CLELAND of Kincavel.
RoBERT CLELAND of Wester-Kincavel stood on the roll of freeholders for the
county of Linlithgow, in virtue of his said lands, which were retoured thus:
“Et quod praefatae terrae nunc valent, per annum, summam septem librarum sex
‘solidorum et octo denariorum, monetae hujus regni Scotiae, et tempore pacis
‘ tantum valuerunt; et quod eaedem terrae de S. D. N. Rege et suis successori-
“ bus in feudifirma et hereditate in perpetuum tenentur, pro annua solutione
• Septem librarum monetae praedict. apud festa Pentecostes, et Sancti Martini in
‘ hyeme particulariter, idque tanquam proportionalis partis summae viginti sex
“ librarum, quae est feudifirma pro integris terris de Kinkavell persoluta, secun-
* dum antiqua et originaria dict. terrarum infeofamenta, nomine feudifirma tan-
“ tum, una cum summa sex solidorum et octo denariorum, in augmentatione pro
‘ praedictis septem bovatis terrarum, plus quam unquam eadem pars et portio arº-

Sect, i. MEMBER of PARLIAMENT. I 5
Objected to his title, That the old extent was not distinct from the feu-duty;
and, therefore, he could not claim a vote on the extent.
Anſwered, That the former duty and extent were different, and it was only
by the augmentation of the rental that the feu and retoured duties became the
same; so that it appeared the Jury had not filled up the valent clause with the
reddendo.
Replied, That the augmentation could not be made by the retour, but by some
prior, and, probably, long prior deed; so that the augmented duty was the red-
dendo at the time of taking the inquisition, which the Jury, according to custom,
had made the valent; and there arose a presumption from the real value of the
lands in proportion with that of others, that this was not the old extent.
The cause being reported, it was further urged for the defender, That, by the
late statute, all votes on the extent being cut off, unless it were proved by a re-
tour; therefore, when the extent was so proved, the title behoved to be sustain-
ed: Neither did this act refer to the former 1681, by which the old extent be-
hoved to be distinct from the feu-duty. And, besides, the meaning of this rule
WaS mistaken; for, it was not that the sums necessarily behoved to be different,
but that the lands behoved really to have been so extended, and not the feu-
duty filled up in the place of the extent, of which there was no evidence here,
nor was the thing to be presumed. º
For the complainers, That the late statute did not make a retour probative,
which was not so before ; and granting the defender to have put a right inter-
pretation on the expression of the extent and feu-duty's being distinct, yet, when
the sums were the same, it was to be presumed that the one was put for the o-
ther: And it was of no consequence in the argument, that this was the same in
effect with excluding all titles where the sums were alike, now that the evidence
was confined to a retour; for, by the act I68 I, other evidence might have been
brought of the lands being extended. - -
The Lords, 4th June 1745, repelled the objection.
g
Pleaded further in a bill for the complainers, That, even by the late act, there
might still be a mean of proof competent, if the lands were really extended, for
that there were other retours than those of heirs.
On anSWerS, the LORDS, 4th June 1746, sustained the objection.
Pleaded in a bill for Kincavel, That the act 16th George II, was not only in-
tended to carry into effect the statute 1681, but also to explain and amend it, as .
appeared from the title; and this act having expressed in the preamble, “That
great difficulties had occurred in making up the rolls of electors by persons
• claiming to be inrolled, in respect of the old extent of their land, where the .
• old extent did not appear from proper evidence;’ went on to enact, without
any reference to the act 1681, that the old extent should be proved by a retour,
and so took away all objections from the retoured duties and extent being the
same. There was another instance of an alteration from the old statute made by:
No I 5.
I6
MEMBER or PARLIAMENT. ‘DIv. II.
No 1 5.
*No 16.
The objection
sustained,
that the old
e X tell t WaS
retoured to
the same Sun
with the fell-
duty, though
there was a
retour of the
old extent Set
parate from
the reddendo.
i 747. June 24.
this; for, whereas formerly, when the extent of lands did not appear, the heritor
was entitled to claim a vote, if he had L. 400 of valued rent; from which it was
doubted if he could vote upon his valuation, when the extent appeared and did
not amount to 4os. this was amended, and the valuation in all cases made a suffi-
cient qualification.
The defender's retour would, according to the act 1681, have sufficiently in-
structed his extent, as it was retoured distinct from the feu-duty; the ordinary
stile of those which the act intended to exclude being, Et quod praefatae terrae
nunc valent per annum feudifirmas et devoria; ſubterscript. et tempore pacit tan-
film valuerunt. & + * ,”
THE LORDS refused the petition, and adhered.
Alt. Graham ten.
Clerk, Murray.
Fol. Dic. v. 3. p. 405. D. Falconer, v. 1. No 115. p. 138.
} Act. H. Home, Ferguson, & Ramſay.
1.2ckhart, & Philp.
Reporter, Baſmerino.
-—-mº ºm-
FREEHOLDEfs of Perthshire against MARA.
IN the case of the Freeholders of Dumfries-shire against Irving of Wysby, the
LoRDs sustained the objection to a retour, that it was of feu-lands, and the old
and new extent and the feu-duty retoured to be all the same ; in respect of the
clause in the act of Parliament 1681, which requires the old extent in retours of
feu-lands to be distinct from the feu-duty ; and gave the like judgment in June
1746, Freeholders of Linlithgowshire against Cleland of Kincavel, No. 15. p.
14. The like question now again occurred, Freeholders of Perthshire against
M“Ara of Drummie, and the like judgment was given.
The Lords understood this clause in the act as a declaration of the Legislature,
that where the old extent in the retour and the feu-dûty was the same, the old
extent was no other than a random answer by the Jury to that head of the brieve,
as often the answer to that head of the brieve appears to be by retouring the feu-
duty, tax-ward, or blench-duty, as the old extent,
This clause in the act of Parliament has ever been thought dark; but the
meaning of it was by some of the Lords thought to be, not that the feu-duty and
the retour-duty should be different sums, as there was nothing to hinder the feu-
duty and old retour-duty to coincide in the sum, but this, that, beside the red-
dendo of the feu-duty, there should be a separate retour of the old extent, and
that, wherever there was such separate retour, it was a good retour, notwith- -
standing the feu-duty and retour-duty were the same, * * - e
But the Court was, as has been said, of a different opinion. Withal, as the
judgments in the two former cases had settled this point in the shires of Dumfries
SECT. I.
MEMBER OF PARLIAMENT. 17
º
and Linlithgow, it would have been strange to have the law different in the shire
of Perth. -
Fol. Dic. v. 3. p. 405. Kilkerran, (Rerous.) No. 2. p. 497.
*** D. Falconer reports this case.
RoBERT MACARA of Drimmie, standing on the roll of freeholders for the shire
of Perth, and an objection being made to his title, he, to support it, appealed to
a retour in the records of Chancery, 30th May 1667, of the fourth part of the
lands of Drimmie, bearing them to be of value per annum ſummam quinquaginta
trium solidorum et octo denariorum, moneta Scotia, et tempore pacis tantum ; and
to be held feu, pro folutione quinquaginta trium ſolidorum et acto denariorum,
moneta Scotia, cum parte martis et divorii'ſ debit. et consuet, una cum duobuſ ſo-
lidis, moneta, antedict. in novam augmentationem rentaliſ dict. terrarum ; and al-
leged that the value was distinct from the feu-duty.
Answered, That in lands holding feu of the King, the feu-duty is the extent,
Craig, l. 2. D. 17. § 8, and the inquest in this case were in the wrong, in omit-
ting out of their retour the augmentation, and the part of the mart; nor can pre-
scription support it, so as to make the estate of less value, when the feu-duty is
still paid; and the law determines these to be the same, unus et verus canon est
gui convenerat, et is extentus neque incrementum neque decrementum admittit, ita-
que pro eodem retornatur. !
THE LORDs sustained the objection.
Alt. D. Grame
Act. Scrimgeour.
D. Falconer, v. I. No. 19 1. p. 256.
mº ºn — -
*-
1747. November Io. -
KER, and other FREEHOLDERS of Berwickshire, against REDPATH and others.
KER of Moriston complained of the proceedings of the freeholders of Berwick-
shire, met on the 6th instant for the choice of a Member to serve in Parliament;
first, Of the last Commissioner, who, in course, did act as Preses in the choice
of Preses and Clerk, for that he refused, though required, before he proceeded
to call over the roll for the choice of Preses and Clerk, to administer the oaths
appointed by law to the whole freeholders present; and concluded, that, on ac-
count of that defect, the whole subsequent proceedings of the meeting were
void. *
This the LoRDs “ Found not to fall under the cognizance of the Court.”
He complained that Redpath of Angleraw had been admitted, though his
C
No 16.
No 17.
Found in co:-
for inity with
Freeholders
of L2nark, a .
gainst Hamil-
ton, No. 1 1.
p. 12
The apparent
heir of the
eldest of a
number of
heirs-portion-
€IS Il Qt en-
titled to be
enrolled as 2.
freeholder.
18 +r MEMBER OF PARLIAMENT. Div. II.
No I7.
qualification was no other than a retour in 1666, wherein the old extent and the
feu-duty are the same. -
“This objection was sustained, and Angleraw appointed to be struck off the
roll.” - - *
He further-complained, that Mr James Primrose was admitted, although his
qualification was no other than as apparent heir of his mother, the eldest of three.
heirs-portioners in a forty-shilling land.
This the LoRDs “Sustained, and appointed him to be struck off;” notwith-
standing it was argued from the Bench, That each heir-portioner is entitled to
the subject in ſolidum, and that only concurru parter faciunt, in So much, that
should an heir-portioner serve to her predecessor in the whole subject, her sister
deceasing, she would not need to make up a new title ; and that as dignities
and superiorities, which are indivisible, go to the eldest heir-portiéner, so should
the title and qualification to vote, and that the analogy also from the case of ad-
judgers applied; in respect it was by others answered, That, as to adjudgers, the
case is determined by the statute 1681; and as little did the case of dignities and
superiorities apply, as those must necessarily be somewhere; whereas, the right
of voting may be extinct and nowhere ; and so they thought the case to be where
a forty-shilling land fell to three heirs-portioners, even though it should be ad-
mitted that each might serve in solidum, which yet was not thought clear to be
the proper service of heirs-portioners. -
Fol. Dic. v. 3. p. 425. Kilkerran, (FREEHOLDER.) No. 1. p. 225.
*** D. Falconer reports this case.
MR JAMES PRIMROSE, Minister of the Gospel at Crichton, stood upon the roll
of freeholders for the shire of Berwick, on the title of the lands of East-Mori-
§ {OI] . --
Objected, That John Moffat of East-Moriston deceased, leaving three sisters,
heirs-portioners, and the claimant, the son of the eldest cannot stand upon
the roll, having no right to the other two shares, which, together with his
own, make up the extent. - -
Answered, That, as the first adjudger is entitled to the rights of a freehold-
er, so ought he who is eldest heir-portioner, the lands continuing undivided;
especially considering he is infeft base in the property, on a disposition from
his uncle, and has it in his power to make his infeftment public; so that he
has right really to the whole estate.
THE LORDs sustained the objection.
Act. 70. Stuart. Alt. R. Dundar.
D. Falconer, v, I. No. 207, p. 236.
SECT. T. MEMBER of PARLIAMENT, 19
1761. july 28. - -
Mr WALTER STEwART, Advocate, and Others, againſt Mr DAVID DALRYMPLE,
Advocate.
MR WALTER STEwART, Advocate, Lieutenant James Stewart, William Ro-
rison of Ardoch, George Campbell of Aird, Lieutenant William Agnew,
Nathaniel Duke of Leathes, and Captain William Stewart, lodgéd their several
claims to be enrolled as freeholders in the county of Wigton, at Michaelmas
1760, upon the following titles: - --
For Mr Walter Stewart there was produced, I. Charter of resignation un-
der the Great Seal, comprehending, inter alia, the three-merk-land of Barn-
kirk, of old extent, with the pertinents, proceeding on a procuratory of re-
signation, granted by Alexander Earl of Galloway, in favour of himself, and
his heirs therein mentioned ; 2. Disposition and assignation of these lands by
the Earl, dated 9th March 1759, in favour of Mr Stewart in liferent, and the
Earl himself and his heirs, &c. in fee, containing an assignment to the pre-
cept in the charter; but excepting from the warrandice a feu-disposition of
the property of the lands granted to Lord Gairlies, and the infeftment follow-
ing thereon; 3. Mr Stewart's sasine, dated and registered in proper time; 4.
For instructing the old extent of these lands, there was produced the extract
of Archibald Kennedy’s retour, as heir in special to his father, dated 2d May
1633.
For Lieutenant Stewart, I. The above charter under the Great Seal, in fa-
vour of the Earl of Galloway, containing, inter alia, the four-merk-land of
old extent of Knockuat, and mill thereof; 2. Disposition and assignation of
these lands by the Earl, in favour of Lieutenant Stewart, in the same terms
as above; 3. Lieutenant Stewart's sasine ; 4. Extract of the retour of Sir John
Macdowal of Garthland, as heir in special to his father, dated 23d November
1625, by which these lands were retoured to a four-merk-land of old extent.
For William Rorison and George Campbell, Conveyances of the same kind,
of certain other lands, contained in the Earl's charter; and the said retour of
Macdowal of Garthland was likewise referred to. - -
The other claimants also produced writings and title-deeds for instructing
their several qualifications, and that their lands were of the valuation and
holding required by law. x- *
The whole of these claimants having been rejected by a majority of the free-
holders, joined in a complaint to the Court of Session upon the statute of the
16th of his late Majesty. To which answers having been put in for Mr David
Dalrymple, who had moved the objections against them in the Court of Frce-
holders, the following points occurred : -
C 2
No 18.
Extract of a
retour from
the books of
Chancery
bears faith,
though the
principal re.
tour be not to
be found
there.
In this case
several other
points were
decided.
26 MEMBER of PARLIAMENT. * Div. II.
No 18.
I. Order of the Court for serving a complaint may be executed by borrow-
ing up the principal interlocutor, and putting it into the messenger's hands,
without extracting.
Objected by the defender, That the warrant of the Court for serving the pe-
tition and complaint had not been regularly executed ; for, in place of ex-
tracting the interlocutor, which was the regular method, the complainers had
borrowed up the interlocutor itself from the Clerk, and delivered it to a
messenger to be executed : That this was contrary to form, as the orders or
judgments of the Court could only be executed upon extracts under the hands
of the Clerks; and, were it otherwise, a party might often proceed to execu-
tion upon an interlocutor that was afterwards altered by the Court; no mes-
senger, therefore, could safely or legally put any warrant in execution, unless
it was ascertained by an extract, that the order or judgment was final.
Answered, The principal order is surely of as great authority as an extract
of that order. In this case, the Court ordained the defender to be served with
a copy of the complaint, and deliverance thereoi, which was accordingly
done; and, in obedience to that service, the defender sisted himself in Court,
and put in answers; so that the intention of the law, and of the order of Court,
was fulfilled. Neither is it unusual in practice, when the party upon whom
the order is to be served is on the spot, to borrow the principal warrant from
the Clerk, as an authority to the messenger to serve him with a copy of the
complaint, and deliverance thereon, which is all that the law requires.
“THE LORD's over-ruled the objection.”
2. Whether different complainers can join in one complaint *
Objected by the defender, It is a general rule in law, that different actions,
or suits, cannot be accumulated in one libel. Here there are no less than
seven complainers, and seven different grounds of complaint, accumulated in
the same petition. This is an irregular practice, and tends to produce disor-
der and obscurity in judicial proceedings.
Anſwered, This has been the uniform practice of the Court, in similar cas
of which many instances might be produced. --
“THE LORD's repelled the objection.” * I
N. B.-Although the LoRDs over-ruled this objection, in respect of some.
late instances in which the same thing had been permitted; yet, as they were
of opinion that the practice was irregular, and might be productive of confu-
Sion, an act of Sederunt was made upon the 15th November 1760, (soon after
the above complaint was given in,) ordaining, that, in all-time coming, each
petitioner shoulá prefer a separate petition for himself, without accumulating
the complaints of different parties in one petition; as also, that each of these
petitions should complain against one defender only, except in cases where
hore petitioners or defenders may be necessarily connected.
SECT. I. * MEMBER of PARLIAMENT, - 2 I
3. Objections not stated in the Court of Freeholders may be insisted in be-
fore the Court of Session. • º
The defender having, in his answers, stated a variety of new objections,
which had not occurred in the Court of Freeholders, the complainers insiſted,
That this was irregular; for that the election statutes had committed to the
freeholders the power of judging in the first instance of the qualification of
claimants, allowing a competent time for all concerned to consider the claim,
and frame their objections. By the statute 1681, the Court of Session is mere-
ly a Court of Review, with respect to questions about enrollments, and can
only consider the objections and reasons upon which the freeholders gave
judgment. Neither does the subsequent act in the 1742 enlarge this power
of the Court of Session ; and, indeed, it would be unreasonable, that a Court
of Review should have the power to alter or reverse the judgment of the in-
ferior Court, though just and legal, or confirm it, though ever so unjust and
ill founded.
Answered, It has been the constant usage of the Court to canvass the titles
of claimants, and judge of every objection arising from the deeds exhibited,
though not stated to the freeholders. In giving judgment, the freeholders de-
termine upon the validity of the titles of claimants in general ; of course, these
judgments cannot be applied to objections stated in particular, the question
being always put, Enroll, or Not Enroll: Therefore, the Court of Session, even
though considered as a Court of Review, cannot be limited to judge of particu-
lar objections formerly made. The claimants, by their petition, submit the
validity of their qualifications in general to the cognizance of the Court; and
the law must be applied according to the facts and evidence before the Court.
“ THE LORDs found it competent to the defender not only to insist upon
the objections made at the Head Court, but also upon the other objections
now made, notwithstanding the same were not proponed at the Head Court.”
This interlocutor being appealed from, was affirmed by the House of Lords
upon the 1st April 1762. -
These preliminary points being adjusted, the Court proceeded next to con-
sider the particular objections offered to the titles of the several claimants; the .
most material of which were these following : w
4. Objection to a retour, that it only mentioned twelve persons on the in:
quest, repelled. *
Qbjected to the retour of John. Macdowal of Garthland, dated 23d Novem-
ber 1625, That it is null, as it bears only twelve persons to have been on the
inquest or jury; whereas, fifteen is the number usually observed ; and in no
case was ever a less number than thirteen allowed; Skene, De verb. signift-
cat. Tit. Breve de možte antecessorir, makes the number thirteen or fifteen ;
Craig, lib. 2. dićg. I 7. § 27, says, “ Haec autém inquisitio per 15 viros fieri,
‘p
No 18.
22. - MEMBER or PARLIAMENT. Div. II.
* No 18.
‘ solet ; Saepe per 17, pro rei gravitate ; aliquando per 13; sed semper in im-
‘ pari numero.’ In England the number is twelve; nor is an odd number ne-
cessary, because unanimity among the jurors is required. With us, where the
plurality determines the verdict, an odd number is requisite; but that odd
number cannot be less than the even number required in our neighbouring
country. Instances, indeed, appear in the books of Chancery, where Juries
seem to have consisted of many different numbers, sometimes even, and some-
times odd, without being restricted to any certain rule: But, in these books,
the retours are copied without any accuracy; and it can be made appear,
that many of the instances alluded to are owing to mistakes in transcribing
the principal retOur, - - . 2 * - -
Answered for the complainers, Imo, In point of fact, it appears evidently
from the extract of the retour itself, as recorded in the Chancery books, that
the jurors who passed upon this service were more in number than those whose
names appear upon record; and that the seeming defect is no more than an
error in transcribing the names from the principal retour into the record, pass.
ing over a whole line, which must have contained at least one, and probably
three jurors; 2do, In point of law, the inquest may consist of a less number
than either thirteen or fifteen, though these are the numbers most Commonly
itaken ; neither is an odd number absolutely requisite, although it is expedient,
f
in case the jurors should divide in opinion. The brieves upon which these in-
quests proceed were instituted by King James I, and have one uniform stile,
authorising and commanding the Judge to whom they are directed to summon
an inquest, without any limitation in point of number, which is therefore
left to the discretion of the Judge, to take trial of the facts which are to be
the subject of the inquisition. The most ancient authority that occurs upon
this point is in the 3d Book of the Majesty, cap. 28. § 3. where 12 are said to.
be the number requisite. The same thing appears from the statutes of David
II. cap. 19.; and Sir Thomas Craig, in lib. 1. dieſ. 8. refers to the constitu-
tions of King Kenneth II. whereby the persons of inquest were allowed to con-
sist of any number from seven upwards. See also $ 5. ejusd, tit. et Jib. 3. dieſ.
2. § 19. Further, it appears from a search of the records of Chancery, that,
in the space of ten years, from 1619 to 1630, there are no less than 12 retours
having 12 persons on the Jury; 1 of 24 jurors; 2 of 18; 13 of 16; 34 of 14;
and I of Io jurors ; making, in whole, 63 retours, having an equal number
of jurors on the inquest ; and there are likewise four instances where the in-
quest consisted of 1 I jurors; so that it is clear that the practice was not con-
fined either to 15 or I 3 jurors. * . -
“ THE LORD's repelled the objection.”
5. Extract of a retour from the books of Chancery bears faith, though the
principal retour is not to be found there. -
SECT. I. MEMBER or PARLIAMENT. +. 23
Objected also to this retour; That the principal retour is not extant in chancery,
and the copy produced can bear no faith. The attestation by which it is certi-
fied, is contrary to the true fact ; ‘Haec est vera copia principalis retornatus
‘super praemissis in cancellaria S. D. N. Regis remanen. ext. copiat. et collat.
“ per me,’ &c. This attestation may be just and proper when subjoined to the
copy of a retour extant in chancery, which is the case of retours for ico years
past; but, when the retour is not to be found there, no officer can with truth
certify, that he gives out a true copy of the principal retour in cancellaria re-
manen. The copy-book of retours in chancery is no record; it was introduced
by no statute, but by the clerks of the office for their own convenience. This
copy-book therefore bears no faith, and extracts or copies given from it can be
of no sort of use. The clerks of the chancery can regularly give no extracts,
because they have no record warranted or authenticated by law ; but to pre-
vent the danger of losing or throwing into confusion such valuable documents,
they have been in use to give out true copies of the principal retours, which,
as the parties interested had access to compare them with the principals lying
in chancery, have been held as sufficient in judicial productions. Hence the
constant stile of the attestation is, ‘Haec est vera copia principalis retornatus;’
and it must follow, that if the principal retour is not to be found in chancery,
such attestation can bear no faith. -
Anſwered ; The record of chancery, by which is meant the book in which
the principal services are transcribed, has been received as evidence in all
courts, and goes as far back as the year 1547. It is not indeed constituted by
any particular statute ; but the uniform and uninterrupted practice of receiv-
ing it as evidence in the Court of Session, as well as Exchequer, both by King
and subject, has authenticated it past all doubt. The very objection which is
now made was over-ruled in two cases exactly similar to the present ; 5th Fe-
bruary 1745, Colquhoun contra Freeholders of Dunbartonshire, No 12.
supra; and 19th November 1755, Chalmers contra Tytler, No 34. infra;
so that the point is now absolutely fixed. *
THE LORDs repelled the objection.
6. Whether a retour is proper evidence of the old extent of lands which ap-
pear to have formerly belonged to church-men. - >
Objected to this retour; That the lands therein contained appear to have been
part of the patrimony of the Bishop of Galloway : and as it was a known fact,
that the original valuation in the reign of Alexander III. which constitutes the
old extent, was only of temporal lands, and did not comprehend the patrimony
of the church, the retour in question would not be sustained as legal evidence
of the old extent of these lands. The retour certifies, that these lands valent
• nunc per annum feudifirma aliaque subscripta, et tempore pacis valuerunt
• summum decem librarum, et quod tenentur in capite de reverendo in Christo
• Patre Andrea Candidae Casae episcopo, pro annua solutione,’ &c. The old
No 18.
24 MEMBER or PARLIAMENT. Div. II.
No 18. extent was a valuation put upon the temporal lands in this kingdom, as a rule
- for paying such taxations as should be imposed from time to time by Parliament,
for the exigencies of the state. But lands belonging to the church paid tax by
a different rule, and were not extended. When any tax was imposed, a pro-
portion was laid on the temporal lands, to be levied by the old extent in pound
and merk lands, and a separate proportion was laid upon the clergy, which was
levied according to a particular tax-roll kept for that purpose, called Bagimont's
roll, which had no connection with the old extent. This appears from the several
acts of Parliament imposing the taxations, 1587, cap. 281. ; 1621, cáp. I. : 1633,
cap. 1. ; and the same method continued down to the act of convention 1665,
the last act by which any taxation was levied in this kingdom ; 'Stair, Tit.
DECLARATOR OF NoN-ENTRY, § 3. ; Bankton, v. 2. p. 74. and p. 333. : Skene
De verb. significat. voce BAGIMONT.
Before the Reformation, the vassals of the church neither sat in Parliament,
nor elected commissioners to sit there ; the church was represented by its digni-
taries the Bishops and Abbots; and all the statutes requiring or dispensing with
the attendance of freeholders in Parliament, relate to the vassals in temporal
lands holding of the King, and not to the vassals of the church. By act 114th,
Parl. 1687, the right of electing commissioners to Parliament is limited to those
• having a forty-shilling-land in free tenantty, holding of the King,' which can
only apply to temporal lands. After the Reformation, and the general annex-
ation of church-lands, an act passed in 1594, ordaining all church-lands to be
retoured to merk and penny lands, that his Majesty might know the owners of
them, and that they might be charged with taxes according to such retours s -
but this act was never carried into execution. The old method of taxing
church-lands by Bagimont's roll was still continued ; and as no alteration was
made in the rule of taxation, so the act 1587 continued the invariable rule for the
qualification of voting for commissioners to serve in Parliament, and the church-
vassals were entirely excluded, till by act 35th, Parl. 1661, it was provided,
• That besides heritors holding a forty-shilling-land of the King in capite, those
* who held their lands formerly of bishops and abbots, and now hold of the
• King, and whose yearly rent doth amount to ten chalders of victual or L. Ioco,
- shall be capable to be elected,’ &c. By this act the heritors of church-lands
acquired a right of voting, not in respect of the old extent, which had no place
in church-lands, but in respect of their real value. And Inatters stood upon this
footing till 1681, when an alteration was made, not in the right of voting by
extent, but in the amount of the actual rent necessary to give a qualification,
which, from L. Iozo real rent, was restricted to L. 4oo valued rent, liable in
public burdens, whether kirk-lands now holden of the King, or other lands hold-
ing feu, ward, or blanch of his Majesty, as King or Prince of Scotland. In all
of these statutes, an evident distinction is made between temporal and church-
lands, establishing the qualification of the one upon the old extent, and that of
*~.
SECT. r. & MEMBER OF PARLIAMENT. - 25
the other upon the valuation introduced by Parliament 1667; therefore the owners
of church-lands are not entitled to vote upon extent, but upon valuation alone.
It is not sufficient for the complainers to say, that as, de facto, the lands in
question have been extended in this case, and the retour stood unchallenged for
a long tract of time, the presumption is, that the jury proceeded on proper
evidence. It is well known, that extents, both old and new, are very often
erroneously thrown into retours, on occasion of the inquest mistaking the direc-
tion of the act 1474, which ordains, that it be answered ‘what the lands was of
‘ avail of the old, and the very avail it was worth the day of serving the brieve;’
the one, the old extent, to regulate the payment of taxes; the other, the new
extent, to regulate the casualities of superiority. This direction could only be
meant as to temporal lands; but could not apply to lands belonging to the
church. At the same time, when church lands came into family Succession,
and were retourable, as the brieves issued for serving heirs were the same in
these as in other lands, the jury thought, and still think themselves, obliged to
make an answer to each head in the brieve, though, as they can have no evi-
dence of extent where there never was any, it appears they have sometimes
erroneously made the feu-duty answer for extent, old and new ; and sometimes
taken as evidence of the extent the old designations of merk and pound lands,
which are found in almost all old rentals of bishops and abbots lands, and which
had been given them to ascertain and proportion the services and rents payable
by the feuers and tenants. - * Ar -
Anſwered; By the statute rô81, a forty-shilling land of old extent, of lands
then holding of the King or Prince, without distinction whether these lands had,
in some former period, belonged to the bishops or other church-men, is made
the capital and primary qualification; and, in default thereof, L. 4co of valued
rent. Again, by the statute of the 16th of the late King, these two propositions
are established; Imo, That the old extent shall be proved by a retour, and by
no other mean of proof; 2do, That the retour must be prior to the 16th Sep-
tember 1681 ; and that no division of the old extent, made since that time, shall
be the foundation of a title to vote. No distinction is there made between one
species of lands and others that then held of the Crown, whether originally
Crown-lands, or as having reverted to the Crown by the suppression of the reli-
gious houses and abolition of episcopacy; the conclusion therefore is fair, that
the law did not intend any such distinction. It does not appoint any inquiry to
be made, by what means lands came to get such old extent prior to the 1681;
if the extent was ascertained by a retour prior to that date, this was deemed
sufficient to stop all further inquiry. The complainers therefore have fulfilled .
the requisites of the law, by producing a retour of so ancient a date, bearing
their lands to be of a proper old extent ; and they cannot be bound poſt tantum
temporiſ, to say or prove upon what evidence the jurors proceeded in retouring
these lands; Sir George M'Kenzie’s Observations upon the act 1681. .
No I 8.
26. MEMBER or PARLIAMENT, Div. II.
No 18, . The complainers do admit, that such lands as belonged to the church at the
- . " period of the first general valuation, which constitutes the old extent, were not
included in that valuation; but it is incumbent on the objectors to show, that
the lands in question made part of the bishop's patrimony in the reign of Alex.
ander III. ; otherways the argument will be inconclusive; the presumption is,
that these lands were included in the general valuation, unless the contrary can
be shown. They may have been temporal lands at that time, and afterwards
acquired by the Bishop of Galloway ; and though the effect of the original
valuation and extent was suspended when these lands were acquired to the kirk,
and so long as they remained a part of the patrimony thereof, yet the extent was
not thereby vacated ; so that when they reverted to the Crown, by the suppres-
sion of the religious houses, the old extent of course revived. It appears, from
a search of the records, that many lands, which were the patrimony of the
church, were retoured, and that these retours contain both old and new extent
separate and distinct from the feu-duties. Many proprietors of lands do at pre-
sent actually stand enrolled in different counties upon retours of this kind. -
The lands in question have certainly been retoured before they came into
the bishop's possession; for, in the oldest title deed produced, which is a
charter as far back as 1566, and in all the subsequent title-deeds, they are
constantly described by the old extent; and, no doubt, proper evidence of
that extent was laid before the jury, who gave the verdict ascertaining that
fact anno 1625, although it is now impossible, in the nature of things, to renew
that evidence at the distance of 136 years ; nor is it necessary, seeing the
retour itself is extant, which the law declares to be probatio probata of the old
eXtent. ” - - -
Replied; The oldest rights to these lands show them to have been church-
lands; and a presumption is, that they were not contained in the general
valuation. The see of Galloway was established Icoo years before the Refor-
mation, and must have been fully endowed before the reign of Alexander III.
Besides, supposing them to have been originally extended, this extent was
annihilated by the mortification of the lands, and could not revive when they
afterwards came to hold of the King ; neither could the evidence of that ex-
tent be preserved during so long a time, while the lands belonged to the
church. It is true, the act of the 16th of the late King admits of no other
evidence of the old extent but retours prior to the 1681 ; but it gives no
greater weight to the retour than it would have had before the statute; it
does not authorise evidence to be sustained which would not have been sus-
tained formerly, or qualifications to be admitted that were not qualifications
previous to the statute; I4th June 1746, Freeholders of Linlithgow contra -
- Robert Cleland, No 15. ſupra; 24th June 1747, Freeholders of Perth-.
shire contra Macara, No 16. supra. - - . .
SEct. I. - MEMBER or PAR},IAMENT. 27
“THE LORDs found, that the aforesaid retour was no proper evidence of the
old extent of the lands therein contained; and therefore that the complainers,
who founded upon it, were not entitled to be put on the roll. To which inter-
locutor, upon advising a reclaiming petition, answers, and replies, the Court,
upon the 2d February 1762, adhered.”
But this point having been appealed, the House of Peers, upon the 1st April
1762, reversed the judgment of the Court of Session, and ordered the com-
plainers to be added to the roll of freeholders. *.
7. No good objection to a retour, that the lands therein contained are retoured,
holding of a subject.
Objected to the retour produced for Mr Walter Stewart, That it does not re-
tour the value of the lands holding of the Crown, but of the lands of Barn-
kirk, which held in capite of John Gordon of Lochinvar. In lands holden of
the Crown, the Sheriff and the jury were particularly bound to enquire into
the old extent, as that was the rule by which the taxation was payable to the
Crown. The taxations payable to the Crown were exacted from the Crown's
immediate vassals, and they again charged their sub-vassals with relief of their
taxations according to no settled rule, but according to their different agree-
ments with their sub-vassals. It is plain, therefore, that the value inserted in
retours of vassals not holding of the Crown, can be no proper evidence of the
old extent; and for that reason, the act 1661 provides, that only the baron’s
lands, which hold of the Crown in capite to the extent of 45 shillings of old
extent, shall be entitled to a vote.
Answered; The act 1474 directs all retours to contain the old and new ex-
tent, whether the lands hold of the Crown or of a subject; in both cases, they
proceed upon brieves from the Chancery to the King's Judges; in both cases
they have verdicts of a jury on oath. Neither does the statute of the 16th of
his late Majesty, which makes retours the only evidence of old extent, esta-
blish any such distinction as is now contended for, and which, if held to
be law, would exclude above one half of the retours in Scotland. Further,
this objection was repelled by a solemn decision of the Court; 26th July 1753,
Abercromby contra Baird, No 33. infra.
“THE LORDs repelled the objection.”
* 8. Superior may divide the superiority without the vassal's consent.
Objected to the titles produced for Mr Stewart and others of the complainers,
That the Earl of Galloway, who had only the right of superiority in his per-
son to the lands which he had granted to these claimants, had parcelled out this
right of superiority, in order to create the intended votes, without consent of
Lord Gairlies his vassal in the lands, so as to introduce five different superiors,
in place of one. Such deeds by which a number of different superiori,
ties are created and many superiors imposed on the vassal without his consent,
D 2
No 18.
23 MEMBER of PARLIAMENT. Div. II,
NO I 8.
are void and ineffectual in law; Craig, lib. 2. die.g. II, § 18; Stair, lib. 2. tit.
4. S 5. -
Answered ; The objection is jus tertii to the defender. The complainers
stand infeft in the superiority of their respective lands upon charters from the
Crown, whereby they are acknowledged and received the Crown's vassals in
these lands; so that, supposing it were competent to Lord Gairlies to challenge
the same, no other person has a title to plead in Lord Gairlies's right; besides,
there is here no division of the superiority of only one fee, but a distribution of
the superiorities of several distinct fees distinguished into separate parcels, each
parcel consisting of so many pound and merk lands; and there was nothing to
hinder the Earl from alienating the superiority of any one or more of these
parcels, And further, in selling a superiority, or any part of it, there is no
occasion for the vassal's consent. That a superior cannot interpose a superior
between himself and his vassal, is admitted; but that he should be disabled
from selling the superiority of any one part unless he dispose of the whole, is
warranted by no law. The vassal may sell part of his estate without the supe.
- e - |
rior's consent ; and no reason can be assigned why the superior sheuld not have
the same privilege with regard to the superiority.
“THE LORDs repelled the objection.”
Objection of nominal and fictitious repelled. -
Laſtly, It was objected to some of the complainers, That they had ne proper.
ty-estate vested in them, as they drew no profits from their superiorities; par-
ticularly with regard to Lieutenant Agnew, it was observed, that by his charter
he was obliged to pay to the Crown of yearly feu-duty L. 24: 14 : 8 Scots; and
from the extent of the sasine of Mr Alexander Agnew, his vassah, it appeared,
that he was only entitled to receive from his said vassal one penny Scots of
blanch-duty yearly ; so that, in place of receiving any profit out of his estate,
he was a considerable loser by it. The Court has indeed in some cases sustain-
ed qualifications where it appeared that there was a true and real estate vested
in the claimant, though of the most inconsiderable value; but Lieutenant Ag-
new is so far from having any estate, use, or benefit from his superiority, that, on
the contrary, he is liable to the King for a great deal more than he is entitled
Ap
to receive from his vassal; so that, if there is any sense or meaning in the oath
required by the statute of the 7th of George II. this case falls under its prohi-
bition. . . * - -
Answered ; 1mo, The objection is not founded in fact ; for it appears by the
conveyances produced, that the vassal is under an obligation to free and relieve
Lieutenant Agnew of all feu-duty and other prestations payable to the Crown;
so that the question resolves in this, Whether a blanch superiority is not by law
a sufficient qualification? which has been frequently decided. 2do, There is
no relevancy in the objection; for all that is required by law is, that thc claim-
ant be publicly infeft, in property or superiority, and in possession of a forty-
SECT. 1. ' .” MEMBER OF PARLIAMENT. 29
shilling land of old extent, holden of the King. It is of no consequence what
duty or profit the superior receives out of the lands, or whether it is higher or
lower than the reddendo which he himself pays to the Crown. If the Crown's
vassal should pay L. Ioo of feu-duty to the King, and should feu these lands
to be holden blanch of himself, his freehold-qualification would be just as good
as if, vice versa, he held it blanch of the Crown, and had disponed them to be
holden feu of himself; 9th January 1755, Forester of Dunoven against An-
drew Fletcher, infra.
Obſerved on the Bench, That this was the strongest intance that had ever
occurred of a title purely nominal, and which conveyed no real interest in land;
but it had been decided in other cases, that no regard was to be had to the va-
lue of the estate, provided the claimant was really and truly vcsted in the
right, such as it was.
“ THE LORDs repelled the objection.”
Act. Agnew, Walter Stewart, Lockhart. Alt. Garden, Da. Dalrymple,
Ferguson, Advocatus. Clerk, Pringle.
j. C. - Fol. Dic. v. 3. p. 403. Fac. Col. No 51. p. 118.
*** This case was appealed :
The House of LoRDs, April 1st 1762, ORDERED and ADJUDGED, that the said
interlocutor of the Ioth February 1761 be, and the same is hereby affirmed ;
and it is further Ordered and Adjudged, that the said interlocutors of the 28th
July 1761 and 2d February last, be, and the same are hereby reversed, and that
the appellants be added to the roll of freeholders for the shire of Wigton, pur-
suant to the act of Parliament of the 16th year of his late Majesty.
1761. July 29. r
PATRICK MACKIE of Barmore, against SIR WILLIAM MAxwell of Monreith,
and other Freeholders of the county of Wigton.
/
PATRICK MACKIE of Barmore having claimed to be admitted upon the roll of
freeholders of the county of Wigton, at the general election upon the 23d, of
April 1761, he, with that view, produced a charter under the Great Seal, in his
favour, of the lands of Barhapple, Kenmuir, and Barbuny, together with seve-
ral other lands therein mentioned, dated 12th February 1740, with an instru-
ment of Sasine following thereupon, dated "the 1st, and registered the 12th of
March thereafter ; and an extract retour of Sir Robert M'Lellan of Bombie, as
heir in special of Thomas M'Lellan of Bombie his father, dated 27th October
#624, whereby the said lands of Kenmuir, Barhapple, and Barbuny, were
No 18.
No 19.
The objec-
tion again re-
pelled, that
the principal
retour did
not appear,
but only an
extract from ,
Chancery.
39 MEMBER or PARLIAMENT. Div. II.
No 19.
f * *.
each of them retoured to be a one merk-land, extending in whole to three
merk-lands of old extent distinct from the feu-duties. t
Sir William Maxwell and others of the freeholders objected to this claim, Imo,
That the claimant who had been formerly enrolled upon the same lands, was
expunged from the roll anno 1747, in consequence of a decree of the Court of
Session, and it was not competent to the freeholders to reverse that decree.
2do, That the lands contained in the claim were said in the retour to hold of
- William Gordon of Craichlaw; and therefore the said retour could afford no
proper evidence of the old extent.
3tio, That the pretended extract of the said retour produced, could not be re-
garded, in respect that there was no such retour in Chancery; and that the
extract was taken only from a copy-book, which is not sufficient; the act of
the 16th of George the Second having enacted, that the retour itself shall be
the only proper evidence of the old extent. *.
Answered for the claimant; Imo, That he was struck off the roll in 1747 for
not producing a retour to shew the old extent of the lands he formerly claimed
upon; but that having lately found such retour, he was entitled to be imme-
diately enrolled, the former decree of the Court of Session notwithstanding.
2do, That the statutes with regard te freehold-qualifications make no distinc-
tion of retours, whether the lands hold of the King or of a subject superior;
and that it had been found by the Court of Session, that a retour of lands prior
to the year 1681, whether holding of the King or of a subject, was sufficient
evidence of the old extent.
3tio, That no principal retour was to be found in Chancery preceding-the
year 1660, the whole having been carried off by Cromwell; but these retours
appear upon record in the books of Chancery ; and from that record extracts
are always given, as from the principal retours, and the extract produced bears
to be vera copia principalif retornatus in cancellaria remanen. Besides, the like
objection was expressly repelled by the Court in the case of Sir James Colqu-
houn contra The Freeholders of Dunbartonshire, 5th February 1745, No 12.
Jupra.
The freeholders having refused to enrol the claimant, he preferred a petition
and complaint in terms of the act of the 16th of the late King; and, upon
advising this petition with answers,
“THE LORDs ordered the complainer to be put upon the roll.”
For the Complainer, Walter Stewart. For the Respondents, Da. Dalrymple. Clerk, Pringle.
A. W. Fol. Dic, v. 3. p. 4og. Fac, Coll. No 53. p. 130.
~
SECT. I, MEMBER or PARLIAMENT. 3 I
I762. january 15. - -
The Honourable Captain WILLIAM STEwART of Cortland, against Sir WIL-
- LIAM MAxwell of Monreith, and Others.
AT the meeting for election of a Member Parliament for the county of Wig-
ton, held upon the 23d of April 1761, Captain Stewart claimed to be enrolled
upon the following titles: Imo, Charter of resignation under the Great Seal in
his favour, of the three merk land of Cortland, dated 26th July 1731. 2do,
Instrument of sasine following upon the said charter, dated the 11th, and re-
corded in the general register upon the 26th of August 1731. And, 3tio, Ex-
tract of the retour of Alexander Stewart of Garlies, as heir in special to his fa.
ther, dated Ioth April 1604, whereby the said lands were retoured to be a
three merk land of old extent, distinct from the ward-duties. -
To this qualification, Sir William Maxwell and other freeholders objected,
Imo, That the claimant having been enrolled 20 years ago upon the same lands,
he was expunged upon the 31st of July 1747, in virtue of a decree of the
Lords of Session; and that it was not competent to the freeholders, but to the
Court of Session alone, to vary or alter that decree. 2do, That the pretended ex-
tract of the retour produced, not being taken from the principal retour in Chancery,
but from a copy-book, it can meet with no regard. And, 3rio, That this ex-
tract can be of no avail, because from thence it would appear, that there had
only been 13 jurymen upon the inquest, instead of 15.
Captains Stewart answered to the Irt of these objections, That, from the ex. .
tracted decree of the Court of Session in 1747, it appeared that he was then
struck off the roll for not producing his retour ; and that it being now recover-
ed, that decree stood no longer in the way of his being enrolled. .
To the 2d, That, as original retours, preceding the year 1660, are not to be
found, all extracts of retours prior to that period are taken from the record in
Chancery, which bears faith in all cases equally with the principal retour itself;
and that this very objection was repelled in the case of Colquhoun contra Free-
holders of Dunbarton, 5th February 1745, No 12. supra. -
To the 3d, That, although 15 is the common number of jurymen, yet that
number is not absolutely required by law: That Sir John Skene and Sir Tho-
In 2S Craig mention, that I3 or 15 are commonly chosen upon the brieve of
mortancestry; and that numberless instances of retours occur in Chancery
w ~ 2: .
where the inquest consisted only of 13.
The vote being stated upon these objections and answers, it carried Not to ,
enroll; but, upon a complaint by Captain Stewart to the Court of Session,
“THE LORDs appointed the complainer to be added to the roll.”
Act. Walter Stewart. Alt. David Dalrymple
A. W. . . . . Fol. Dic. v. 3. p. 403. Fac. Coll. No 76. p. 170.
No 2c.
An extract .
from the copy
in the books
kept in Chan-
cery full evi-
dence of a .
I CLOUlſ,
32" MEMBER or PARLIAMENT. JDIv. II.
No 21.
Two retours
of different
parts of the
same lands,
prior to the
I 68 I, a-
mounting
together to
4o shilling,
sufficiente-
vidence of an
old extent for
a freehold
qualification.
No 22.
No 23.
Evidence of
the old ex-
tent. Dis-
crepancy in
the descrip-
tive and va-
lent clauses
of the retour.
\
1767. january 23. -
SIR Michael MALcolM of Lochore, against ALLAN RAMSAY of Kinkeli.
SIR MicrºAEL MALcolM claimed to be put on the freeholders roll for the coun-
ty of Kinross, upon the lands of Bins, and for instructing, that the said lands
were a forty-shilling land of old extent, he produced a retour in the 1666, where
one half of them was retoured as a twenty-shilling land of old extent; and he
produced another retour in the 1620, which proved the other half of the same
lands to be also twenty-shilling of old extent; and these, joined together, he
contended, were sufficient evidence of a forty-shilling land, to entitle him to
be enrolled. . . . . t - \
It was objected, That it was contrary to the spirit and intention of the law to
allow a forty-shilling land to be made up of different parcels.: That the evi-
dence of an old extent ought to be contained in one retour ; and, upon this
objection, the freeholders refused to enroll Sir Michael, who applied to the
Court by a summary, complaint, in terms of the act of the 16th of the late
King. - g
* THE LoRDs ordered the complainer to be added to the roll; and found him
entitled to expenses.’ - - -
For Sir Michael, Al. Wight. For Mr Ramsay, Alex. Lockhart.
A. E. Fol. Dic. v. 3. p. 403. Fac. Col. No 55. p. 96.
*** A similar decision had been given, 17th January 17 59. Blair against
Freeholders of Renfrewshire. See APPENDIx.
— — sº º Lº-
1767. February 17. SIR John GoRDON against
A CERTIEICATE by one of the keepers of the records in the Lower Parlia.
ment House, that in a record of old extent made up in 1613, the lands were
marked as extending to L. 8:8: 2 Scots, was found not sufficient to instruct a
retour. This decision was affirmed on appeal. See APPENDIx.
Fol. Dic. v. 3. p. 403.
—mº- f
1780. December 5. JoHN BARNs againſt JoHN HAMILTON.
At the Michaelmas head-court of the county of Ayr, in 1780, Mr Barns
claimed to be enrolled on the four merk lands of Shaw, part of the barony of
Glenmuir ; and, in order to prove the old extent of these lands, produced a re-
tour of James Earl of Queensberry, dated 20th May 1640, in which they were
described as of that value. -
SECT. I. MEMBER of PARLIAMENT.
33
Upon summing up the extents of the different lands composing the barony,
as specified in the descriptive clause, it appeared that they did not amount to .
more than L. 15: 3: 4; whereas the valent stated the whole, in cumulo, at
L. 16: 6: o. From this discrepancy, it was objected by Mr Hamilton, That the
retour could not be sustained as sufficient evidence of the old extent of the
claimant’s lands. This objection having been brought under the review of the
Court of Session, it was * *
Pleaded for Mr Barns, By the uniform practice of the Court, ever since the
decision in the case of the Lennox retour, about 40 years ago, a discrepancy of
that sort, arising from an excess in the valent, has been held out to detract from
the faith of the retour: For the cause of this excess must always be, either an
error in calculation, or else the omission of some of the lands, or their being
stated at too low a value, in the descriptive clause. In the present case, there-
fore, the discrepancy might, indeed, give some room to suppose that the old ex-
tent of the lands in question may have been a few shillings above four merks,
but is plainly inconsistent with its having been below that value.
THE Court repelled the objection.
Act. G. Fergus ſon. Alt. Wight & ja. Boswell.
L. Fol. Dic. v. 3. p. 423. Fac. Col. No I. p. 1.
mº sº ºm
1781. january 23. GENERAL FLETCHER against JAMES FERRIER.
At a meeting of the freeholders in the shire of Dumbarton in 1780, General
Fletcher claimed to be enrolled upon certain lands, part of the Dukedom of
Lennox; and, for proving their old extent, produced the retour of the special
service of Charles Duke of Lennox, dated 25th April 1662.
The valent in this retour does not specify the separate values of the different
tenements, but states the whole Dukedom to be L. 517 : 3: 4 of old extent.
To ascertain the several values, the claimant had recourse to the descriptive
clause, where, to every tenement is prefixed a denomination by pounds, merks,
and shillings, and the amount of the whole only falls short of the citmülo valent
by L. 1: 16:8. Upon this discrepancy is was -
Objected,” The filth head of the brief of mortancestry is that alone in which
the inquest is called upon to ascertain the old and new valuations ; and their
verdict on this head only is to be regarded in questions respecting freehold claims.
The descriptions are the work of the conveyancer, intended merely to denote
the different tenements in which the heir is desirous of being served, and origi-
* This objection was formerly over-ruled in a question respecting the same retour, quoted in
the sequel; but, as it does not seem that the matter was then so fully treated, nor that any at-
tempt was made to elide the presumptive evidence arising from the coincidence of the two claus-
es, by positive proof adduced from other retours, it has been thought proper to give a summary
of the argument in this place. &
E
No 23.
No 24.
Found in con-
formity with
Colquhoun
against Free-
holders of
Dumbarton-
shire, No 12.
P 8.572.
Altho’ there
be a small
discrepancy
between the
valent clause
and the de-
scriptive, the
descriptive
will be receiv.
ed as proof
of the old
eXie Ilt.
3
4. %. MEMBER or PARLIAMENT. DIv. II.
No 24.
*
nate in circumstances which cannot now be explained. For the most part they
are taken, as these seem to have been, from the tax-rolls, which were made up
by the sherifi clerks of the different counties, not according to the old extent of
Alexander III. referred to in the laws concerning elections, but from later valu-
ations in 1366 and 1424, by which the public subsidies were paid in Scotland
till 1667. See Kames's Law Tracts, voce REToURs; Erskine's Larger Institute,
|RIGHTs of SUPERIORITY. ** *
The Court has been induced to sustain the evidence of retours, ia which the
several descriptive values, when joined, precisely agree with the cumulo valent ;
but, in the present case, they do not correspond; and, as this is a question, not
of equity, but of positive law, where the Court is not at liberty to make arbi-
trary distinctions, the smallness of the discrepancy cannot vary their judg-
ment. -
Some of the descriptions in this retour particularly mention the old extent,
from which it may be inferred, that the other denominations are taken from
another standard. - * *
Further, the objector is now enabled, by evidence not before the Court when
this retour was formerly under challenge, No 12. rupra, to show that the
descriptions in this retour cannot refer to the old extent.
Imo, Many of the tenements composing the Dukedom of Lennox are con-
tained in the retours of the estates of Luss and Ardincaple, and in those of the
— - A. / - º
family of Napier. They are there expressly retouted to sums different from,
and less than those in the present retour.
2do, The old Earldom of Lennox, in the middle of the 15th century, devolv.
ed upon heirs portioners. One half went to the family of Darnly, to whom the
Dukes of Lennox succeeded. The other half divided betwixt the ancestor of
Mr Haldane of Gleneagles, and Elibabeth Monteith, married to Lord Napier.
From an accurate investigation of the subjects contained in the retour founded
on by the claimant, it appears, that they are all parts of the old Earldom, with
the exception of four, whose extent is only L. 74. After this is deducted, the
descriptive sums amount to L. 441: 6:8. The old extent of the lands con-
tained in Elizabeth Monteith's retour, in the fourth of the old Earldom, is only
L. i25; of course, the descriptive sums in this retour are nearly twice as great
as they ought to be, if they were meant to denote the old extent.
3tio, It appears from the titles produced for the claimant, that the family of
Lennox were, at the period of this retour, possessed of 24 tenements not enu-
merated in the descriptive clause. These would be admitted to a share in the
cumulo valent ; so that the sums annexed to the lands specially mentioned, have
been estimated by some other rule than the old extent. - * -
Answered for General Fletcher: The statute 16th Geo. II. restricts the proof
of the old extent to retours, without limiting the consideration of the Court to
any particular clause in them. It is therefore sufficient, if, from the whole, sa-
tisfactory evidence can be collected of the old extent.
sect. 1. MEMBER or PARLIAMENT. 35
The universal practice in retours, is to describe the lands by the old extent.
The near coincidence of the two clauses in this retour proves that to have been
done in this case. Where the descriptive values exceed the cumulo valent, the
discrepancy may be fatal to the credibility of the retour; because there it can-
not be determined what tenement is described beyond its real extent. The a-
mount of the present objection is, that some of the lands may be entitled to a
larger valuation than is given them in the descriptions. -,
There is no distinction in this part of our law betwixt the most ancient valua-
tion, supposed to have taken place in the reign of Alexander III. and the later
ones, by which the land-tax was paid, till after the Restoration. And the rea-
son of the law, which is, that persons subject to a certain share of the pu-
blic burdens, should likewise have a share in the legislation, militates against
such a distinction.
When a freehold qualification is to be made out upon the old extent, all re-
quired by law is, that the same shall be ascertained by a retour preceding the
1681. And no objection can invalidate that evidence, which does not arise from
the retours founded on by the claimant. A contrary practice would tend to
unhinge the faith of all retours, and would be the sourse of endless disputes.
But, further, the retour of Elizabeth Monteith is in 1474; that of the Duke
of Lennox in 1662. Many transactions might have taken place betwixt the
co-heiresses and their successors. If necessary, the claimant is able to show that
such actually existed. º -
The 24 tenements pointed out by the objector are parts of those which are
particularly named. Although they were not; the legal presumption in such a
case would be, that the inquest had them not under their consideration, other-
wise the cumulo valent would have been increased.
• THE Court repelled the objection.’
Act, Ilay Campbell. Alt. Wight et H. Erikine.
C. Fol. Dic. v. 3. p. 403. Fac. Col. No 19 p. 37.
—-sm-
1781. March 6. Robert Scott against John HAMILTON.
MR Scott, in evidence of the old extent of the lands on which he claimed
to be enrolled as a freeholder in the county of Ayr, produced a retour, in which
these lands were contained among others. **
descriptive values, when joined, amounted only to L. 5: 6:8.
THE LoRDs were of opinion, That this difference was too considerable to be
âmputed to an error in calculation ; and, on this account, refused to sustain the
retour, as ascertaining the old extent of the lands belonging to the claimant.
Act. Geo. Fergusson. Alt. 7a. Borwell.
£. tº Fol. Dic. v. 3. p. 403. Fac. Col. No 43. p. 8o.
E 2 -
The cumulo valent in the retour extended the whole to L. 7: 6: 8; but the
No 24,
No 25.
36 - MEMBER OF PARLIAMENT. IDPv. II.
No 26.
IDiscrepancy
in the des-
criptive and
valent clauses ,
ot a retous.
1781. Marcb 7.
LIEUTENANT-CoLONEL FERRIER againrt RoBERT GRAHAM.
CoLONEL FERRIER claimed to be added to the roll of freeholders in the coun-
ty of Ayr ; and, for instructing the old extent of his lands, produced the retour
of Sir William Cunningham of Cunningham-head, as heir to his father Sir Wil-
liam Cunningham, dated 12th May 164r. - -
This retour bore, that thé deceased Sir William Cunningham died vest and
seized * in tota et integra tenendria de Woodheid, comprehenden. in se parti-
* culares terras, annuum reditum, aliaque respective subscripta, viz. totas et in-
tegras quatuor mercat. terrarum de Middleton, quatuor mercat. sex folidat. et
acto denariat. de Caprimstane, (the lands claimed on) viginti solidat. et octo
denariat. de Dreghorn, viginti duas solidatas de Warric, sex solidat. et octo
6
®
6
• • denariat. de Drumgreislaw, et unam mercatam terrae de Woodheid, cum per-
tinent. unum annuum reditum tertiae partis unius librae piperis annuatim le-
* vand. de terris de Bartonholm, quatuor mercatis terrarum de Warrichill, om-
• nes antiqui extentus jacent. infra balliatum de Cunninghame, et comitat. de
• Ayr.' The valent clause was in these words : * Et quod tota et integra dicta
• tenendria de Woodheid, comprehenden. in se particulares villas terras, annuum.
• reditum, aliaque respective supra scripta, viz. quod dictae quatuor mercat. ter-
• rarum Middleton, quatuor mercat. rex folidat. et octo denariat, terrarum de Ca-
• primstane, viginti solidat. terrarum de Dréghorn, viginti duae solidat. terrarum.
• de Warric, sex solidat, et octo denariat. terrarum de Drumgreislaw, una mer-
* Cat. terrarum de Woodhead, cum pertinent. et praedict. quatuor mercat. ter-
• rarum de Warrichill, nunc valent per annum sexaginta sex libris duodecim
• solidis monetae praedictae, et valuerunt tempore pacis undecim libris et duo-
• bus solidis monetae praedictae, et quod dictus annuus reditus dictae tertiae par-
• tis unius librae piperis nunc valet per annum tertiam partem unius librae pi-
* peris, et tantum valuit tempore pacis.' -
To this retour it was objected by Mr Graham, That the descriptive values ex-
ceed those in the valent by seven merks and eight pence.
Anruered for Colonel Ferrier, It is evident, from the repetition of the values
of each particular tenement in the valent clause, corresponding precisely with
the descriptions, that the variation pointed out by the objector has originated
solely from a blunder in summing up the extents of the different tenements.
Tμε LoRDs repelled the objection.
Act. 7. Boswell. Alt. G. Ferguson. -
Q, ' Fol. Dic. v. 3. p. 4o3. Fac. Col. No 48. p. 36.
*,* See Synopsis at this case.
SECT. 1. MEMBER of PARLIAMENT. 37
1802. june 22. DAVIDSON againſt HILL.
At a meeting of the freeholders of Stirlingshire, (13th January 1802), Ro-
bert Hill, writer to the signet, claimed to be enrolled upon the lands of Wester
Glenboig. He produced an extract of a retour in favour of Charles, Duke of
Lennox and Richmond, dated the 24th April 1662, which mentions, Decem
‘mercatus terrarum de Enbºgir alias Glenbog-Cunninghame et Macewin.” And
an extract of the retour of the special service of Robert Adam, dated the 28th
July 1658, which bears, that the lands of Glenboig-Cunningham are a five-
merk land of old extent. He contended, That as the Lennox retour proved the
whole lands of Glenboig-Cunningham and Glenboig-Macewin, to be a ten-merk
land, and as Adam's retour proved his part of them to be a five-merk land, the
remaining half upon which he claimed must also be eonsidered as a five-merk
land of old extent. It was objected, That this was not sufficient legal evidence;
but the freeholders repelled the objection. -
Against this judgment, Harry Davidson, writer to the signet, one of the free-
holders, presented a petition and complaint, and
Pleaded ; There is no such thing as common law in questions with respect
to the enrolment of freeholders; such matters are entirely regulated by statute.
The qualification of a freeholder is ascertained by the acts 1587, c. 114., and
1681, c. 21. to be a forty shilling land of old extent. These statutes do not
fix any particular sort of evidence by which this old extent is to be proved ;
and accordingly, until the act 16th George H. c. I I. every sort of proof was
admitted. That statute was intended to remove the inconvenience of allowing
all kinds of evidence before a court of freeholders, and laid down a rule, by
which claims of this sort might.at, once be clearly decided. It requires the old
extent to be proved, by a retour.of the lands of a date prior to the 16th Sep-
tember 1681, and excludes all other evidence. Hill has not produced a retour
of the lands of Wester Glenbºig, conforinable to this act of Parliament. By
producing a retour of the whºle, as a ten-merk land, and of a part as a five-
merk land, it does not follow, that the remainder is to be considered as retour-
ed at five merks; Macdowal against Buchanan, 20th February 1787, No 42.
p. 8625; for the comparative value may have changed during the interval, be-
tween the two retours, or the old extent may have been retoured by the agree-
ment of parties; Kames's Law Tracts, Tr. 14. ; Dallas, p. 887. ; and, at any
rate, the retour of Glenboig Cunningham is ref inter alioſ with respect to the
extent of Glenboig-Macewin. It could nowise be binding on an inquest upon
these lands, who must have rete, Jred their valuc according to the evidence ac-
tually before them. This former retour might form a part of such evidence,
and be a strong presumption as to the extent of the lands; but the act of Par-
liament excludes presumptions altogether, by requiring the actual verdict of a
No 27.
A separate
retour is not
necessary for
each indivi-
dual vote on
thes old ex-
tent,
38 MEMBER of PARLIAMENT. DIv. II.
No 27.
jury in the form of a retour, and not the evidence which might be laid before
a jury. Accordingly, although the most satisfactory proof could be adduced,
by means of authenticated rolls, or otherwise, that the lands were of a much
greater extent than what is required by the aët of Palliament, the claim of the
freeholder would not be sustained, because a retour is a fine qua non with res-
pect to the value of votes claimed on the old 'extent; Stewart against Craw-
urd, 22d February 1745, No 13. rupra. The claimant must produce a se-
parate retour of his lands: If there be none, he has no right to a freehold; and
if there be any, as he has not produced it, the valent clause must be presumed
to be unfavourable to his claim. \ .
• Answered ; The act 16th George II., requires the old extent of lands to be
established by a retour ; but this may be done either by one or more retours.
Accordingly, it has been found, that a freeholder who produces two separate
retours of two parcels of land, at twenty shillings of old extent, has a right to
be enrolled ; Malcolm against Ramsay, 23d January 1767, No 21. rupra;
Fordyce against Urquhart, 20th November 1757, No 36. infra; Wight on
Elections. And if this be done, by adding two retours together, it may like-
wise be done by subtracting the amount of one retour from another. The
claimant has here produced complete evidence, by means of retours, without
having recourse to any other sort of proof, that his lands of Wester Glenboig
have been retoured as a five-merk land of old extent : And this is all that is
required by the act of Parliament, as was found, Belsches against Buchanan,
1790, (not reported, see APPENDIX.)
THE CourT (11th March 1802), dismissed the complaint; and, upon advis-
ing a reclaiming petition, with answers, they adhered to their interlocutor.
Some of their Lordships expressed great doubts, how far the evidence in this
case, and in the case of Belsches, was conformable to the act of Parliament;
but the majority of the Court seemed to hold, that it is sufficient if the old extent
be established by different retours, although there be not a separate retour for
each parcel of lands ; or at least that it was too late now to go back upon that
principle, which the Court had adopted in the cases alluded to.
For Petitioner, Lord Advocate Hope, Solicitor-General Blair, Boyle, Bruce.
Agent, A. Abercromby, W. S. For Respondent, Erikine, Clerk, Campbell.
Agent, R. II., W. S. Clerk, Homc.
~7. Fac, Col. No 43. p. 98.
SECT. I. MEMBER OF PARLIAMENT. 39
1803. March 9. DAVIDSON againſt ELPHINSTONE.
No 28.
THE Honourable Charles Elphinstone Fleeming claimed to be enrolled at Evidence
the meeting for electing a representative in Parliament for Stirlingshire, held . .
on 19th July 1802, produced the following titles: of the old
1st, A charter of resignation under the great seal, in favour of Robert Hill, eXtent,
of the lands of Easter Glenboig aliar Enboig. 2d, Disposition by Hill in EI- -
phinstone's favour, of the said lands of Glenboig. 3d, Instrument of sasine
following upon that charter and disposition ; and 4th, An extract of a retour
of the service of Sir James Edmonstone of Duntreath; to his father in these
lands, dated 21st April 1615, the descriptive clause of which is in these words:
“ Qui jurati dicunt, quod quondam Willielmus Edmestoun de Duntreath,
“ pater domini Jacobi Edmestoun, nunc de Duntreath, militis, obiit ultimo
“ vestitus et sasitus ut de feodo ad pacem et fidem.S. D. N. Regis, de totis et
“integris quinq. mercatis terrarum de Eister Glenboig alias Eneboig, cum mo–
“ lendino, terris molendinariis, astrictis multuris ejusdem, et suis pertinentiis
“ quibuscunq., jacen, infra vicecomitatum de Striviling, una cum officio Corona-
“ toris dict. vicecomitatus de Striviling.” The valent clause, again, is in these.
words : “ Et quod dict. terrae de Eister Glenboig, cum molendino, terris mo–
“ lendinariis, astrictis multuris ejusdem, et suis pertinen., una cum officio Coro-
“ natoris praedict., valent nunc per annum summam decem librarum monetae
“regni Scotiae, et quod valuerunt tempore pacis summam quinq. mercarum
“ monetae praedict.”
Harry Dadvidson one of the freeholders, objected, that the retour did not
afford sufficient legal evidence of the separate old extent of the lands of Eas-
ter Glenboig, exclusive of the off; of coroner or crownarie of the shireffdom
of Stirling, which last being now àbolished or extinct, was not claimed upon
by Mr Elphinstone. Šºk. *
The freeholders having repell; this objection, Mr Davidson complained to
the Court; and . *
Pleaded ; The statute 1681, c. 2.f. which forms the basis of the election-law
of Scotland, provides that none shall be entitled to vote in the election of
Members of Parliament, but these who are publicly infeft in property, or su-
periority, and in possession of a forty shilling land of old extent, holdén of
the King, or Prince, distinct from the feu-duties; or, where the old extent
does not appear, who is infeft in lands amounting to L. 4ob Scots of valued
rent. It is now fixed by 16th George II c. I I., that a retour prior to 16th
September 1681, is the only evidence of old extent:
The import of the valent clause must decide this case, as its peculiar busi.
ness is to answer this head of the brief; what the old and new extent of the
subject retoured is 2 The office of Coroner is mentioned as one of the subjects
in which Sir James was to be served heir to his father, and is particularly in-
49 MEMBER of PARLIAMENT. DIV. II.
No 29.
4th February 1748 ". .
cluded in the valent clause along with the lands, as forming part of the old
extent; but as this office, although formerly of great importance, is now a
mere name, and incapable of possession, there being neither duty to perform,
nor emoluments to recieve, it must therefore be laid out of the question. The
old extent of the lands alone cannot amount to five merks, and therefore do
not afford a freehold qualification.
The office of Coroner was formerly of great importance. He was intrusted
with the discharge of some duties essential to the due execution of the law,
and enjoyed various fees and emoluments, fixed either by practice, law, or
immemorial consuetude. This was the nature of the office at the time of the
general valuation, which goes by the name of the old extent. From stat.
Malc. II. c. 3, the Crowner, it appears, was an officer as well known as the
- Sheriff ; and his duty upon a crime being committed, was, after taking a sum-
mary cognition of it, to arrest the persons suspected, and to present them to
the next Justice Air, in return for which he was allowed a proportion of all
the amerciaments and escheats which took place there; Quon. Attach. ; Stat.
Alex. II. In Prynne's Collections, vol. 3. p. 1051., we find an ordinance of
Edward I. for settling the constitution of Scotland, which includes the Coro-
ners, with the regulations for the due exercise of their office, which, besides
showing their importance at that early period, also demonstrates that the office
was held by heritable titles. There is likewise a succession of statutes relative
to this office, as being important in the due execution of the law; 1436,
c. 139. ; 1449, c. 21. ; 1487, c. 99, IoI, io2, 193, II3. ; 1593, c. 93.; 1528,
c. 5.; 1587, c. 82. ; Balfour's Prack. From Skene on Crimes, c. 12, 15, 16.
we learn that this was an efficient office, with certain emoluments annexed to
it in 1609. Now, the date of the retour in question is 1615. It is true, the
office is now in desuetude, though it is not known when this innovation took
place. During Cromwell's usurpation, all heritable offices in Scotland were
abolished by 1654, c. 9. And after the act rescissory, it does not appear that
the Coroners resumed the exercise of their right, which came to be gradually
superseded by the extended powers of the Justices of the Peace; and, finally,
by the change introduced into the administration of criminal law by the new-
modelled Court of Justiciary in 1672. Mackenzie mentions, (Observations,
p. 126.), that the Coroners still protested against these innovations; but their
duties were held as a mere piece of form; Mackenzie's Criminal Law, p. 114,
And the office itself became so entirely extinct, that, on the abolition of heri- .
table jurisdictions, the Coronerships were allowed to remain with those that
had them in their title-deeds, it being understood that it was nothing but a
name without either power or emolument of any kind; Earl of Strathmore,
thus rendered a feudal estate, subject to all the incidents and casualties which
* Not Reported, See APPENDix, -
The office of Coroner being granted in fee and heritage by the Crown, was
SECT. T. MEMBER OF PARLIAMENT, 41
arise from the nature of a feudal holding, in the same manner as if it had con-
sisted of lands. All heritable offices were so; and upon the death of a crown
vassal, the office could only be taken up by a service and retour, proceeding
upon a brief of mortancestry; and it could be transmitted to creditors, or
singular successors, according to the feudal form only ; Cockburn of Langton,
No 17, p. 150. Heritable offices being liable to the causalties of ward,
non-entry, &c. were subject also to the extraordinary aids and taxa-
civus "**** * ~ *------~~~...~" rosed in cases of urgent necessity. The valua-
tion, called the old extent, by which at one time taxes were ſevied, was irot
confined to lands alone; even the livings of the clergy were extended ; Pro-
ceedings of Parliament, 20th July 1366, in Index of Records and Charters,
p. Io. And it cannot be doubted, that offices held as a patrimonial property
and yielding emoluments, must have been included in the extent, and paid
tax accordingly. Many retours of heritable offices per se, and even of this
office of Coroner, containing both an old and new extent, exist.
The extents which are far below the real value, are retoured to ascertain
the claim of the superior for the rents falling due during minority ; and if this
be not ascertained, the superior is entitled to the real value ; Erskine, b. 2.
tit. 5. § 37. ; so that a person expeding a service to a feudal subject yielding
profits, will not leave the valent clause defective, and retour the value only
of part of the subjects. It was not unusual to retour one cumulo valuation of
lands and an office. Douglas of Cavers was served heir to his father in the
barony of Cavers and office of Sheriff of Roxburgh. The objection contend-
,ed for is not a new objection, but was sustained in Murray against Clark, 14th
July 1774, in Wight, p. 170. ; and in Freeholders of Lanark against Steuart,
No 35. infra: And it has been often found, that descriptive words in a
retour cannot be founded on, per ſe, as evidence of the old extent; Sir Michael
Steuart against Campbell, 22d Feb. 1745, in Wight, p. 166. No 14. ſupra.
Answered ; The retour shews the extent retoured to be the extent of the
lands only, and that no part of it belonged to the office of Coroner, which, at
the date of this retour, seems to have been totally insignificant; Pinkerton's
History, vol. 2. p. 404. It does not indeed clearly appear that moveable pro-
perty or offices were ever subject to taxation, which was properly imposed on
land only ; Wight, p. 16o. ; Law Tracts, p. 422. ; Stat. 1474. c. 55. ; Appen-
dix to Wight, p. 30. When retours of heritable offices per se appear, which
is very seldom, it is principally for the sake of ascertaining the non-entry duties
due to the superior; it was but rare that any office was considered as having emo-
luments more than cómmensurate to the duties attached to it: Valent per annum
debito exercendo ruo ſervitio. This was sometimes mentioned in the retour,
but, in general, it was held sufficient to mention the office, without adding to
it any separate extent or valuation; in which case it is held valere reipsum,
which is the general presumption of law.
The important object of the old extent, was to ascertain what each landed
subject was to pay as its proportion of the land-tax, due to the sovereign or
F
No 29.
42 MEMBER OF PARLIAMENT, Div. II.
No 29.
*-
the state ; and there could not have been comprehended under it an office
which did not pay land-tax; so that when an extent was to be put upon an
office, with a reference to the rights of the superior, it was necessary to extend
it separately, and not in cumulo with the lands, as otherwise it would have
been impossible to collect the land-tax, a new process being necessary to as-
certain what part of the extent applied to the taxable subject, and what to
the subject which was not liable to the land-tax, but to the feudal casualties
only. One OT tWO C2 RfP S ner Horo ~~~~2- ~ *-*~ \º a 3 WW Liv 1 º' d. Separate Wall 13 U10 in has
been made of an office; but in these, it is probable that there had been an-
nexed to the office, duties or revenue out of the lands of third parties, which
made it liable to pay land-tax.
But, independent of every other argument, the retour itself proves that the
lands are a five merk land. The answer to the first head of the brief says so
in precise terms; De quinque mercatiº terrarum de Eister Glenboig. Besides
the landed subject with its pertinents, thus accurately deseribed as a five merk
land, the office of coroner is mentioned as being one of the subjects in which
the ancestor died seised, and which the service was intended to carry; but no
value whatever is put upon it, upon the general principle valere reipſum ; and
in the valent clause, the lands, with the pertinents, which had been already
said to be a five merk-land, and the office which had not been described as hav-
ing any extent annexed to it, “ valent nunc per annum summam decem libra-
“ rum monetae regni Scotiae, et valuerunt tempore pacis Summam quinq. mer-
“carum moneta praedict.” If this last clause be ambiguous, compared with
the descriptive words of the retour, the meaning is obvious; and it it enough
to discover the meaning of the retour from a consideration of the whole deed
or series of deeds; Belches against Buchanan, 1790, (see APPENDIX); Davidson
against Hill, No 27. ſupra. In Scott against Miller, 20th February 1787, No
No 41. infra, an objection similar to the present was repelled, as well as in
Colquhoun against Voters of Dunbartonshire, 5th February 1745, No 12.
supra; Fletcher against Ferrier, 23d January 1781, No 24. ſupra.
The Court was divided upon the question. It seemed to be the prevailing o-
pinion, that the extents comprehended all feudalized subjects, and that reliefs
were always exacted from heritable offices, as well as lands, mills, fishings, and
that it comprehended not merely permanent, but even occasional rent, as coal,
salt, &c. But the whole retour taken together satisfied a majority, that in
this case the lands and pertinents were a five merk land, independent of the
office, as mentioned in the descriptive clause, and that the office of Coroner
was not meant to be extended in the valent,
The objection was repelled. * +
Act. Solicitor General f}lair, M. Rors, Robertron, Bruce. . Agent, Alex. Abercromby, W. S.
Alt. JH. Erſkine, Campbell, jo. Clerk, Arch. Camphell junior, Wm. Erikine.
Agent, Ro. Hill, W. S. . Clerk, Menzies
F. Fac. Col. No 96, p. 212. .
*** Affirmed on Appeal.
SECT. 2. MEMBER or PARLIAMENT. #3
sº
SECT. II.
Can Retours be divided ?–Retours of Church Lands.-Of Heritable
Offices.—Objections to Retours.
I745. February 6. FREEHolders of Lanark against HAMILTON of Westburn.
HAMILTON of Westburn claimed a vote in the election of a member of Par-
liament, in virtue of his being proprietor of the just and equal half of lands
retoured to be a twenty-merk land, and produced a voluntary contract, anno
1671, by which the lands, before common, were divided between him and his
neighbour. - - , - - -- -
Objected, That a possession of lands pro indiviso, and so extended, could not
give a title to a vote; and the voluntary division could not mend the matter,
since there being no legal division of the extent, it did not appear what was
the proportion of it allotted to either. -
Answered, The contract mentions the particular extent of the several farms,
making up ten merks to each of their proportions.
The LoRD ORDINARY, 7th January, on advice with the Lords, sustained the
objection; and this day the LoRDs refused a reclaiming bill, and adhered.
Fol. Dic. v. 3. p. 405. D. Falconer, v. 1. p. 65.
—-mºsºm--
1747. February Io. - • - • . .
. Sir Thomas KIRKPATRICK and Others, Freeholders of Dumfries-shire,
- - - against IRVING.
Sir THOMAS KIRKPATRICK, and other Freeholders of the shire of Dumfries,
in pursuance of the act 16th, Geo. II., entitled, “ An act to explain and
amend the laws touching the election of members to serve for the Commons
in Parliament for that part of Great Britain called Scotland,” applied to have
Irving of Gribton struck off the roll of freeholders, on this ground, that the
qualification on which he claimed a vote was the old extent, whereas his lands
were church lands, which never were retoured. - -
Alleged for Gribton, That he produced a retour in 1659, in favour of Mary
Welsh, as nearest lawful heir to John Welsh, her brother, in the four-pound
No 30.
Lands that
We re COIn-
In On to twº O
heritors re-
toured to a-
bove L. 4,
being divid-
ed by volun-
tary contract,
do not entitle
either.
No 31.
Whether
retours in
church lands
before the
land of Gribton, which bears, that these lands valuerunt of old L. 4 Scots, et
valent nunc L, 12 Scots, and the statute on which the complaint is founded,
neither requires nor admits any other proof of the old extent than a retour
1681 instruct
the old ex- .
tent 2
* MEMBER or PARLIAMENT Div. II.
No 31, preceding the 1681. And it is of no moment, that these lands may have per-
tained to the Abbey of Holywood before the general annexation 1507, as they
may have been extended either before they came into the hands of the church,
or thereafter, in pursuance of the act 1594; and that it was observable, that,
the charter of erection 1618, erecting these lands into a temporal lordship, ex-
pressly appoints them in time coming to be taxed, not with the church lands,
but with the temporal lands, conform to the just rate and value thereof.
Answered for the complainers, That the statute on which the complaint is
founded, did not alter the law with respect to the old extent, but only deter-
mines that no proof shall be admitted of the old extent, other than a retour
prior to the 1681; but that it was not thereby intended, that a retour of date
before the 1681 should make a qualification now, though, as the law, stood be-
fore the 1681, the qualification would not have been good; and that so the
Lords determined lately, Freeholders of Lanark contra Hamilton of Wishaw,
No I. I. rupra. And as it is admitted, that the lands are church lands, a re-
tour of such lands was not sufficient to give a qualification, unless it was of
date prior to their having come into the hands of the church. For though it
appeared from the act I 594, that the legislature intended that church lands.
should be extended and subjected to the taxations conform to the poundlands
of old extent, yet nothing was more certain in fact than that church lands con-
tinued still to be assessed as they had been when in the hands of church-men, -
conform to Bagimont's roll, as appears from the acts relating to taxations, and .
the accounts thereof still extant. And therefore it is, that by act 35th, Parl.
1661, proprietors of church lands are allowed to vote, not upon the old extent
but upon their having ten chalders of victual, or L. Iooo of yearly rent. And,
by the act 1681, after the valuation roll was re-established, which had obtain-
ed during the Usurpation, the qualification of such as had lands whereof the
extent did not appear, was put upon the L. 400 of valued rent: That at no time
retours of church lands had been regarded, as they had never been the rule for
bearing public burdens; the extents found by these retours have always been
considered as made at a venture, as the head of the brieve relating to the ex-
tent was answered by retouring the feu-duty or blench-duty for the old extent;
and on that the very ground in the late case, Freeholders of Dumfries-shire
contra Irving of Wysby, the objection to Wysby's retour was sustained. See
No 16, ſupra. . . -
Notwithstanding this reasoning, the LORDs “repelled the objection.”
What they proceeded on was, not that the act of Parliament on which the
complaint is founded gives any greater effect to retours of date prior to the
1681 than such early retours had before, but that they thought this retour.
would have been good before the 1681. And in this they did not so much
consider the possibility, that it may have been a retour in consequence of the
act 1594, for it was agreed, that that act had never taken any effect; but
they considered, that the lands may have been retoured before they came into
$
SECT. 2. MEMBER OF PARLIAMENT. 45
the hands of the church. In Irving of Wysby's case, the feu-duty, and the No 3 I.
retour-duty were the same. Therefore, the LoRDs considered the extent in
that case to have been no other than a random answer to the head of the
brieve, though even in that the Court was not unanimous ; whereas here not
only were the feu-duty and retour-duty different, but there was a distinct re-
tour of the old and new extent; and all the question was, Whether in no case
a retour of church lands could be sufficient? which was thought too strong
a position to affirm. - t
Fol. Dic. v. 3. p. 405. Kilkerran, (RRTOUR.) No I. p. 495.
*** D. Falconer reports this case.
WILLIAM IRVING claimed a vote in the election of a Member of Parliament
for the shire of Dumfries, in virtue of his lands of Gribton, which were retour-
ed to be of value L. 4 of old, and L. I.2 of new extent. w
Objected, That these lands belonging to the Abbey of Holywood, and could
not entitle to a vote on the extent, as church lands did not pay their taxes
by the same rule with the rest of the kingdom, and therefore were not extend-
ed; and so was found in the case of Hamilton of Wishaw, No II. ſupra.
A) Anſwered, That the retour produced was precisely in the terms of the act
of Parliament, and differed from Wishaw's, which bore but one sum for both
old and new extent, to wit, the same with the feu-duty; and these lands.might
either have been extended before they came into the hands of the church, or
since the Reformation, in virtue of the statute 1594.
THE LORDs repelled the objection.
Obſerved in a bill given in next session, but not received, as being without
the reclaiming days, That this retour was a blunder, for it found the lands to º
have been of old extent worth so much, and that they are now worth more in
time of peace; but this was not before the Court, when they pronounced their
interlocutor. - ~ * ‘. .
Act. Frauen & Bowl. Alt. Lockhar.
- D. Falconer, v, I. No 163. p. 214.
1.
- - w *
• * *
——ºmº Lº--
- , * * * - -
**
* -
* . .
is a - -
1753. july 26. -
Colonel ABERCROMBIE againſt WILLIAM BAIRD of Auchmedden. No 32.
- A retour of
The defender was enrolled in the roll of freeholders in the county of Banff, and hºlden
e º * * * - - f &
upon producing, as an evidence of the old extent of his lands, an extract from . i.
the records of Chancery, of a retour dated in the 1628; which extract bore, i. -
that the lands therein mentioned, then holden of the Earl of Marshall, value- tent,
runt, tempore pacis, ſummam decem mercarum monetae praedict.
46 *, MEMBER or PARLIAMENT. Div. II.
No 32.
In a complaint of this enrollment, it was objected, That a retour of lands
holding of a subject at the date of the retour, was not sufficient evidence of
the old extent; for that as the taxations formerly payable to the Crown were
proportioned upon the Crown's vassals, according to the old extent, it was ne-
cessary the extent of the lands of such vassals should be fixed and known;
and it is to be supposed, that for this reason, the act 1474, James III. Parl. 7.
cap. 55., directs, “That retours should contain the auld extent.” But with
respect to lands held of subjects, this regulation was unnecessary, because the
vassals of subjects were not directly liable to the King's taxations, but were
only so to their own superiors in relief of such taxation; and it was argued,
that this relief was not in proportion to the true old extent, but was according
to the benefit these sub-vassals had by their feus; or, according to the agree-
rment they made with their superiors. In support of this, it appears, that in
many charters granted by subject superiors, the old extent had been screwed
up to the same with the feu-duty, and had been so returned by juries, who
were under no necessity to enquire of the real old extent, except where the
lands were held of the King or Prince. And this hypothesis best accounts
for the proviso in the act 1681, Charles II. Parl. 3d. cap. 21., “That the old
extent must be distinct from the feu-duties in feu-lands;" in which case, the
Court hath always refused to sustain the retour as a proof of the old extent. -
Answered for the defender, That the act 1474, without distinction, appoints
all retours to contain the old and new extent. All retours, without distinc.
tion, are upon a brief from the Chancery to the King's judges. Without dis-
tinction, they are the verdicts of a jury upon oath ; which verdicts, until fal-
sified in course of law, the Court is bound to take for proof. To speak of two
old extents for the same lands, viz. of one in respect of the superiority, and
another in respect of the property, is a thing unheard of in our law. The act
1681 requires indeed, that the old extent be distinct from the feu-duty, which
is the case here; but it makes no distinction of old extents; that is, it gives
no ground to suppose, that there ever were two old extents in respect of the
same lands. - •
In like manner, the act 16th, Geo. II. mentions retours in general without
distinction. How then can the Court distinguish? Before this last act, the
Court has found charters alone to be evidence of the old extent. By this act,
all other evidence of the old extent, except that of the retours prior to 1681,
is cut off. The pursuer's doctrine would reduce this evidence to a still more
narrow basis ; for it would exclude above one half of the retours in Scotland.
“THE LORD's repelled the objection to the retour, that the same being of
lands holding of a subject, is not sufficient evidence of the old extent.”
For the Pursuer, R. crisi, A. Lockhart. For the Defender, ja. Ferguson, Ro. Dundar.
- Clerk, Kirkpatrick. - -
..S. - -- Fol. Dic. v. 3. p. 424. Fac. Col. No 82. p. 122.
SECT. 2. MEMBER OF PARLIAMENT, 47
*** Lord Kames reports this case,
1753. july 26.—AT a meeting of the freeholders of the county of Banff,
29th September 1752, William Baird of Auchmedden, claimed to be enrolled
for the lands of Northfield, and part of the lands of Whitefield, as being
a forty-shilling, land of old extent; to vouch which, he produced an extract
from the records of Chancery, of a retour of John Neith of N Orthfield, as heir
in special to William Keith of Northfield, his father, dated 18th September
1628, bearing, That the said lands holden of the Earl of Marshall valuerunt
tempore pacif ſummam decem mercarum moneta, Prataſcº. 5 allu u Pv... ci--- r -> a...,
tion, he was accordingly enrolled. *
A petition was presented to the Court of Session by Colonel James Aber-
crombie of Glasshaugh, complaining of this enrolment, for the following
among other reasons, That the retour produced is not good evidence of the
old extent, being of lands held of a subject. This point was argued before
the Court in a long pleading, and it carried by the plurality to repel the ob-
jection against the retour. I was one of few that thought the objection good,
and gave my reasons with that conciseness which is proper in a Court consist-
ing of so many judges, each of whom is equally entitled to give the reasons
of his opinion. But as the subject is curious, I shall here give the arguments
at full.
I begin with the following proposition, That, as by the act 1681, a forty-
shilling land is made a qualification to entitle a freeholder to elect and be
elected a Member of Parliament, no retour can vouch that qualification but
what at the same time is legal evidence of the old extent, to subject the free-
holder to his proportion of a taxation imposed in the ancient form. And that
no retour of lands held of a subject can afford such legal evidence, I endea-
voured to make out, after premising the following observations; Imo, A certain
proportion of the land-tax, as at present modelled, is laid, upon every shire;
and the commissioners sub-divide this proportion upon all the lands of the
shire, whether held of the King or of a subject, in proportion to the latest va-
luation of each parcel of land. Cld taxations were levied in a different man-
ner. . In the days of Alexander III. all the lands in Scotland, as contained in
the charters of the King's immediate vassals, were valued, and a distinct value
not only put upon each barony, but often upon each tenendry of the barony;
and this was in order to raise a tax. We read of later valuations for the same
purpose. But still the latest of these came, in process of time, to be old
enough to be known by the name of the old extent; and of these, several va-
luation-rolls were no doubt made up, which served not only as a rule for fu-
ture taxations, but were more immediately useful to ascertain the King's ca-
sualties of ward, marriage, non-entry, relief, &c. Accordingly, when a sum
was agreed by Parliament to be raised for the uses of the public, so much was .
No 32.
:
48 MEMBER or PARLIAMENT. 3Div. II.
No 32.
laid upon the clergy, so much upon the King's vassals, and so much upon the
burghs. The King's vassals paid their part primo loco, each contributing
a share in proportion to the extent of his lands as stated in the above rolls,
And they had relief pro rata against the vassals, feuars, and, in general,
against all under them who had any real interest in their lands, and probably
rentalers and tenants were included.
2do, The said roll of the old extent was a sufficient rule as long as the lands
entered in that 1011, at a vel tail: valuation, 1 culia IIIECI eIntire II, the Same Vassal,
whether the original family or a Purchaser holding of the Crown. But in
process of time, lands, whether barony or tenendry, valued in cumulo in the
... a .11, Lei.e. distueubered into parts, and each purchaser holding of the
Crown, it became uncertain by what rule a new tax should be levied; the
said roll not answering for the old extent of the several parts now Separated
and divided. Had the public taxes been as frequent and constant as they are
now-a-days, a remedy must have been invented in ſtanter. But if a small tax
was imposed for the expense of an ambassador, or such like, it was levied per-
haps without any precise rule, as parties could best agree. The splitting of
old baronies and tenendries had another bad consequence regarding the King
more immediately, which required a more instant remedy ; and that was that
the King's casualties of ward, marriage, non-entry, &c. were rendered there-
by in some measure uncertain. It is presumed, that it was this circumstance
principally which introduced a new head or query into the brieve of inquest,
namely, What is the value of the land * This fact was to be tried by the in-
quest, and they had a good rule for determining it, which was to divide the old
extent betwixt the parcel contained in the retour, and the remaining parts of
the barony, in proportion to the true rent of each part. This was a slow re-
medy, but must have been a compleat remedy in time; because no heir had
access to his ancestor's lands holding of the King, otherwise than by a retour.
These retours afforded at the same time a compleat rule for levying any taxa-
tions that were afterwards imposed. It is true, that these retours did not af.
ford always a compleat rule for levying a taxation. For, after lands came to
be in commercio, the King's vassals multiplying exceedingly, and land being
split into smaller and smaller parts, it might well happen that a tax was im.
posed at a time before the old extent of all these different parts was ascertain-
ed by retours. As we became more accurate by experience, a remedy was
provided which brought on a perfect equality among all the King's vassals.
What I have in view is the act 281, Parl. 1597, bearing, “That it had been
the custom to charge barons for payment of the taxation imposed upon the
whole barony when it was entire, notwithstanding of parts being dismember-
ed; therefore ordaining, that such dismembered parts shall be retoured by the
sheriff, to the avail and quantity proportional of the hail barony; and that the
parons shall be entitled to relief according to that proportion.” 2.
.*
SECT. 2. MEMBER of PARLIAMENT. 49
2’
3tio, A retour of land held of a subject superior is, it must be confessed, a
legal act of a very heteroclite nature. For what has the Crown to do with the
entry of the heirs of any but its own vassals 2 Every superior is bound by the
feudal covenant to enter the heir of his own vassal; and if he refuse, the na-
tural remedy is to take a decreet against him, which being ad factum prestan-
dum, might be followed, first with horning, and he still continuing contuma-
cious, with an application to the over lord, or rather to the Sheriff, to interpose
and give infeftment. But it would appear that our forefathers were misled by
the form of entry competent to the heirs of the King's vassals, and thought
that the same remedy might be applicable to the heirs of other vassals. The
tenor of the brieve paved the way to this mistake ; which, though intended
only for the King's vassals, was not expressly limited to them in words. But
this form, however proper with regard to the King's vassals, is extremely irre-
gular with regard to the vassals of subject superiors. The subject superior is
not made a party; and yet the brieve contains many questions which are as-
certained by the inquest that affect his interest extremely. Nay, his interest
may be affected by every single head of the brieve ; and yet no opportunity is
given him to appear for his interest. A verdict pronounced by a jury in such
circumstances may be a good proof against the heir, but ought not to militate
against any other person. In short, in whatever way this legal act has crept
into practice, one thing is evident, that it is in a very ill digested form. And
this opinion may be delivered with great firmness, when the English law is con-
sidered. Their brieve of diem clauſit extremum answers to our brieve of in-
quest, as far as it relates to the heirs of the King's vassals. But there is no
such thing known as a brieve for serving the heir of a sub-vassal, except in this
special case, where the land of the superior happens to be in the King's hand
by ward, and who therefore acts in place of the superior. See Fitz-Herbert,
P. 558. *
Other.considerations present themselves with regard to retours, where the
lands hold of a subject. What if the Earl Marishall had a Chancery Is it lawful to
apply to the King's Chancery for retour, neglecting the superior's Chancery? And
if the superior has no Chancery, is there a difference to be put betwixt a superior
who has a Chancery, and one who has not At any rate, it ought to follow
from the nature of the thing, that if it be at all formal for the heir of a sub-
vassal to apply to the King's Chancery, he ought not to have access till he first
instruct his superior's refusal to grant a precept of clare.
These observations are applicable as follows: A retour of land held of the
King, is, in its nature, legal evidence of the old extent. The whole procedure
affords the greatest certainty; the fact is tried by an inquest, all parties concern-
ed being present, the King by his Sheriff, and the heir personally. The King has
an interest that the oli extent be engrossed in the retour, and the heir has an in-
terest that no more but the true extent be engrossed. But with regard to the
retour of land held of a subject, it cannot, from the nature of the thing, af-
ford any evidence of the old extent. For, in the firſt place, this retour evi-
G
No 32.
5o MEMBER or PARLIAMENT. Div. II.
No 32.
dently is intended for no other purpose, but as the first step of diligence, to
force the superior to receive the heir of his defunct vassal, when he refuses to
grant a precept of clare constat. To this purpose, it may be necessary to
prove, that the ancestor died at the faith and peace of our sovereign Lord, that
the land is held of such a superior, by such a tenure, and that the heir is of
perfect age : But surely, to the effect of a legal compulsion against a superior,
to force him to receive the heir of his vassal, it is not necessary that the extent
of the land be proved, whether old or new, And therefore, because of the
maxim, that actus agentium non operantur ultra eorum intentionem, no faith,is to
be given to the facts set forth in the service, in answer to the questions con-
cerning the old and new extent put in the brieve. From these considerations,
it appears evident, that with regard to the entry of a sub-vassal, the questions
contained in the brieve about the old and new extent, and the answers to these
questions contained in the service, have slipt in by analogy and imitation, with-
out being in any measure necessary. And indeed for what good reason should
they be engrossed in the service, which is but a suppletory act, when they
never are engrossed in a precept of clare constat, which is the principal act.
2do, Such a service can be no evidence against the superior, who is not made a
party to the process, if it can be called so. And for this very reason, were
there no other, such service ean be no evidence of the old extent. For, in ab-
sence of the superior, what certainty can the heir have of the particular lands
belonging to the superior and his vassals, comprehended in the superior's retour
under one old extent ; and suppose he should guess at these lands, what cer-
tainty can he have of the true rent, which yet must be had, in order to ascer-
tain what part of the old extent of the whole is to be laid upon the particular
land to which the service relates? 3tio, Suppose the superior should agree with
the heir of his vassal to engross a particular sum as the old extent, the service
would be no evidence against the other vassals of the barony, with regard to
the burden imposed upon them, of relieving their superior of the taxation pro
rata. They would never be forced to submit to an imaginary valuation, when
they had a certain rule for their relief, which was to proportion it according to
the true and real rent of each parcel of the barony. And indeed this will be
frequently the only rule that can possibly be made use of. The King's vassals
must always be retoured; but if a subject superior do his duty, by granting
precepts of clare constat, his vassals can never have occasion for a brieve out of
the chancery. Suppose, then, that among many vassals of a barony, one or
two only can produce retours, the old extent contained in these retours can never
be set against the true rent of the other vassals’ lands, in order to proportion
the taxation by way of relief.
"upºn wide, though by the act 16th Geo. II, a retour before the 168,
is made the only evidence of the old extent; yet it is not said nor intended,
that any retour indifferently shall be held as legal evidence : And from the spi-,
rit and intention of that statute, it must hold that a retour, which, in a ques-
Sect. 2, MEMBER or PARLIAMENT. - 5 I
tion about levying a taxation in the ancient form, would afford no evidence of
the old extent, can never be held complete evidence of the old extent with re-
gard to the qualification of a voter for a Member of Parliament. This rule
holds against a retour of land held of a subject; for, in proportioning the taxa-
tion at the first instance among the King's vassals, their reteurs only are the
rule. And, in proportioning the relief among the vassals of a barony, the
true rent must be the rule, and not the retours of one or other vassal. And
accordingly, we have the strongest authority that such a retour is no legal evi-
dence of the old extent; no less than the act 28 Ist, Parl. I 597, quoted above.
There the King's property-lands, for the first time, are ordained to be retoured
in order to be taxed; and the rule there for ascertaining the old extent is not
any retour indifferently of adjacent lands of the same real rent with those of
his Majesty's property which are to be retoured, but retours only of the "King's
vassals; for what other reason, but that other retours afford no satisfactory evi-
&
dence of the old extent? g . . . .
I concluded with this observation, That a man to be satisfied of the above
doctrine, needs but look over the retours of vassals holding of subjects; in
many of which, an old extent is set down at random and for form's sake, with-
out regard to probability, not to talk of truth. Nothing more common than
in land holding feu, of a subject, to engross the feu-duty in the retour, in place
both of the old and new extent. And Craig, lib. 2. dieg. 17. § 36, goes so far
as to lay it down for a rule, that this must always be done. “In emphyteosi,
* non est diversus novus extentus ab antiquo: Unus et verus canon est, qui con-
‘ venerat; et is extentus neque incrementum neque diminutionem admittet,
‘ itaque pro eodem retornatur.” And this practice apparently misled the She-
riffs in retouring lands holding feu of the Crown, in pursuance of the act 233d
Parl. 1594. The feu-duties have certainly been engrossed in those retours, in
place both of old and new extent; and it must be for this reason that they are
specially excepted by the act 21st, Parl. 1681, as being no evidence of the old.
extent to afford a qualification for electing or being elected a member of Par-
liament. Had the same precautions been used here that are directed by the
above mentioned act 1597, the retour must have been good evidence of the
old extent. And, by the bye, when a retour of land, holding feu of the
Crown, directed by the act 1594, is by law no good evidence of the old ex-
tent, why should a retour of land held of a subject be more authentic; Fur-
ther, to judge how slovenly retours are made up when they contain useless or,
- - - - - - - - . - . * * * - ºf
unnecessary clauses, let a retour of an annualrent-right be another instance, in
which it was the constant practice to engross the interest of the money lent, in
place both of the old and new extent. Besides, when we inspect the retour
under consideration, it is really felo de re. Probably the lands of Northfield
were let for ten merks yearly, when they were given off to be held ward of the
family of Marishall. Therefore they have got the name of a ten-merk land,
which is a common designation in the like cases. But surely lands which at
*
No 32.
52 MEMBER OF PARLIAMENT. DIv. II.
No 32, this day do not amount to above 10oo merks yearly rent, could never be valu-
ed so high as ten merks yearly in the days of Alexander III, or in any after va-
luation, supposing such to have been. It may be further observed, that the
barony of Troup possibly might be extended in the days Alexander III, but it
is not supposable that the lands of Northfield, including a part of the lands of
Whitefield, were at that ancient period valued separately. This is beyond all
credibility.
In answer to this chain of reasoning, I could find nothing plausible but the
following argument: That by the statutes Robert III, cap. 1. § 3, it appears
that a brieve was taken out of the Chancery, for serving to lands not only held of
the King, but to lands held of a subject; that the brieve was the same in both
cases; that by authority of a sworn inquest, the extent of the lands was ascer-
tained in both equally; and therefore both retours must bear equal faith. It was
added, that the act 55th Pari. 1474, ordaining the new extent to be engrossed in
retours, as well as the old, makes no distinction betwixt retours of the heirs of the
King's vassals and of the vassals of subjects. And so authentic is the one as
well as the other, that neither can be taken out of the way but by a proper re-
duction, which is necessary even when the extent only is quarrelled; of which
Balfour, tit, (of Brieves) affords us several instances.
It is obvious to reply, That a retour of the heir of a sub-vassal may be legal
evidence of all the facts contained therein, which must be ascertained, in or-
der to give the retour its proper effect. But answers to questions that are not
material, are not to be relied on as legal evidence; for this very reason, that
they are foreign to the purpose ; and, in fact, instances in abundance are given
above, how little retours are to be trusted with regard to such facts. This mat-
ter cannot be better illustrated, than by a general service, which proceeds by
authority of the very same brieve that is the foundation of the special service.
Now, if a scrupulous jury, in serving a person heir in general to an ancestor
who had a disposition of land without infeftment, should think it incumbent
upon them to answer pointedly every single question contained in the brieve as
in a special service, I-beg only to put this question, Would the general service
be legal evidence of so many foreign facts which are nothing to the purpose? I
believe this will not be contended; and yet a retour of land held of a subject
affords no better evidence of the old extent than such a general service would
do. The act 1474, it is true, is not ex figura verborum restricted to retours of
the King's vassals. But as there is little accuracy in the language of these
times, we must have recourse to the subject matter which points out, retours of.
the King’s vassals only. And how can it be otherwise, when retours are only
necessary with regard to the King's vassals, and but occasionally with regard to ,
other vassals, to be a compulsitory against a refractory superior. And lastly, as
to reducing retours for a wrong extent, no doubt the same, is competent at the
instance of the King, who, by an extent less than it ought to be, is hurt with
regard to his casualties as well as taxes. But with regard to the retour of a
SECT. 2. MEMBER of PARLIAMENT. 53
sub-vassal, I know but one instance of a reduction at the instance of the supe-
rior of such a retour, upon the head of error in the extent. The superior had
• good ground to challenge an error in the new extent, because it regulates some
of the superior's casualities. But the old extent contained in this retour was
also challenged ; and I must acknowledge, that to find this competent to the
superior is one authority against me, though not a direct one. But it will be
considered as a very slight authority, when the following defence was sustained
to assoilzie the jury, That the old extent of the land contained in an authentic
roll was not shown to them, and therefore they were at liberty to make the old
extent what the party thought proper. Maitland, 17th July 1562, The King
and Lord Drummond contra The Inquest, and George Wisehart for his interest,
voce RETOUR. This at the same time shows, how little such a retour is to be
depended on.
Sel. Dec. No 50. p. 58.
*** Similar decisions were pronounced 28th July 1761, Stewart against Dal-
rymple, No 18. p. 19.; and 29th July 1761, M'Kie against Maxwell, No 19.
P. 29. A.
-º-,
I 755. March 4.
Mr DAVID DALRYMPLE Advocate, Captain For PEs of New, Rob ERT SIMPsos
of Thornton, against Sir JAMES REID of Bara.
By charter, in the 1574, James VI. granted to the College of Aberdeen cer-
tain lands and superiorities, particularly, the chaplainries of Westhall and Fal-
ay rule, &c. declaring, ‘Quod omnia dicta beneficia in totum remanebunt,
* tanquam unita et annexata incorpora et mortificata, ut proprius reditus dicto
* nostro collegio pro perpetuo in futurum : Tenenda pro perpetuo mortificat, in
... futurum, cum potestate ipsis per seipsos, dictis beneficiis terris annuis rediti-
bus, eorundem utendi, occupandi, intromittendi, et desuper disponendi; et
‘ dicta beneficia et capillanias in feudi-firmam, set assedationem locandi, &c.
* Reddendo nobis, &c. Servitium communium supplicationum et orationum,
• &c.”
The pursuers having purchased these subjects from the Collège, claimed
thereon to be enrolled in the roll of ſreeholders in the county of Aberdeen; but
their claim was rejected. They complained to the Court of Session; and the de-
fenders maintained the following objections, viz. Imo, That the subjects in ques-
tion appeared, from the complainers' charters, to be mortified lands; and that,
by the common-law, mortifications are unlienable ; the College of Aberdeen
had only a power of administration, not of alienation. Craig, lib. 1. d. 15. $ 7.
says, “ Inter praedia ecclesiastica numerantur, et collegia religiosa, et rite insti-
“tuta, quorum res, sine consensu regis, alienati, et in feudum dari, non pos--
• Sunt.” In this case, the words of the charter are explicit ; and the grant of.
No 32.
No 33.
Lands morti-
fied with a
reddendo of
fºr eter et laeh-
rymae, and
afterwards
sold, found to
give a title
to VOte.
54 MEMBER or PARLIAMENT. - Div. II.
No 33.
special powers of intrommitting with rents, granting feus, &c. would have been
superfluous, had an unlimited property been intended.
2do, The lands hold neither blench, ward, nor feu; and therefore, though
they were in commercio, they could not give the right of voting for a Member
of Parliament. - *
Of old, only temporal lands belonging to barons appear, by our law, to have
given a right to sit in Parliament; 'church-lands, lands mortified for pious uses.
burgage-lands, gave no such privilege. After the freeholders were allowed to
send commissioners to represent them in Parliament, the act 1587, James VI.
Parl. II. cap. 1 14, appointed these commissioners should be chosen by none but
such as had a forty-shilling land, in free tenandry, holding of the King. This
would appear to exclude church-lands, and much more lands mortified to pious
uscs. The act 1681, which introduces valuation in place of extent, makes no
variation in respect of tenure ; on the contrary, it limits the right of election
to those infeft “in kirk-lands now holden of the Crown, or other lands holding
‘ feu, ward, or blench, of his Majesty. Further, till 1712, mortified lands
were always excepted from the supply-acts; and, by consequence, were not
liable in public burdens; hence it is evident, That, to make mortified lands a
title of enrolment, were, in every sense, contrary as well to the words as to the
true intent and meaning of the act 1681. - -
Answered for David Dalrymple and the other complainers, to the first objec-
tion; That though the lands in question were mortified lands, yet they were the
property of the College; and as there is no law or statute to the contrary, the
College must have that power of alienation which is inherent in property. In
the next place, Supposing dilapidation could be charged against the principal
and masters of the College, wach was not pretended to be the case here, yet
that was jus tertii to the defenders; and an action of reduction upon that head
could only be competent to succeeding principals and masters. Had the com-
plainers’ titles been lands purchased from an heir of tailzie, or from a uni-
nor, these circumstances might afford reasons of reduction to their proper par-
ties, but could never be the foundation of any objection to the qualification for
having a vote. - \ f
To the ſecond objection on the act 1681 ; That, according to the proper con-
struction of the words of the clause, ' Whether kirk-lands now holden of the
• King, or other lands holding feu, ward, or blench, of his Majesty,’ the words
‘ ward, feu, or blench, do not apply to kirk-lands, they only apply to ‘ other
‘ lands holding of his Majesty; and therefore they could not be intended to
apply to lands mortified to pious uses; begause mortified lands are in the same
class with kirk-lands, whereof the usual reddendo was prayers and tears.
But supposing there was doubt upon the construction ef the act 1681, how
far lands, held by mortification tenure, could entitle to vote, yet that doubt
is entirely removed by the act 16th Geo II. which, without distinction of
z
...”
SECT. 2. MEMBER or PARLIAMENT. - 55
the nature of tenure, provides, That lands holden of the King or prince, liable
in public burdens for L. 4oo, shall in all cases be a sufficient qualification.
“THE LoRDs found, that the complainers, in virtue of their titles produced,
are sufficiently entitled to be inrolled in the roll of freeholders for the shire of
Aberdeen ; therefore ordained all of them to be added to the said roll.”
. Alt. George Brown. Alt. Burnet et J. Gordon. . Clerk, Kirkpatrick.
S. Fol. Dic. v. 3. p. 405. Fac. Col. No. 146, p. 217.
1755. November 13. t -
ANDREw CHALMER of Easter Dalrye againſt WILLIAM TXTLER of
Woodhouselee. -
MR TYTLER claimed to be enrolled as a freeholder of the county of Edinburgh
for the lands of Foulfuird, as being a forty-shilling land of old extent.
In a proof of which assertion, he produced from the Chancery an extract of
3. writing, which bears, That on the 3d day of March I 554, an inquisition was
made before the Sheriff of Edinburgh, by certain persons qui jurati dicunt,
‘ quod terræ comitum dominorum et baronum et libere tenentium vicecomita-
‘tus de Edinburgh, extendunt ad valorem subscript. respectique antiqui exten-
“ tus.” In this writing the lands of Foulfuird are valued at 4o shillings. It
concludes with these words, in cujuſ rei teſtimonium ; but it does not bear, that
the seals of the jurors were appended; neither does it make mention of the
name of the clerk, nor of his subscription as clerk. -
The freeholders enrolled Tytler at the Michaelmas meeting 1755. Chalmer --
preferred a complaint against this enrolment; and objected, That the writing.
produced for Tytler could be considered only as the draught of a retour which
had never been completed.
Answered for Tytler; Retours must be held to be authentic when registrated
by the proper officer of the law. This retour is not indeed recorded at length;
but the same objection might be made to the authority of the record of many
charters, wherein the names of the witnesses are omitted ; and instead of the
testing clause, these words are inserted, testibur at in pracedenti charta. The
same is the case in sasines; the law requires that they be inserted at length ins
i
*
the record; but this has been frequently neglected in practice,
“ The LoRDs repelled the objection.” x ---- -
Act. Sir Da. Dalrymple. Alt. Rae 85 A. Pringle. Clerk, Kripariſ. .
D. Fol. Dic. v. 3. p. 424, Fac. Col. No 163 p. 243.
No 33.
No 34.
The objec-
tion, that the
extract from
chancery of a
reto ºur did not
bear, that the
seals of the
jurors were
appended,
nor mention.
ed the name
or subscrip-
tion of the
clerk, was
repelled.
56
MEMBER of PARLIAMENT. Div. II.
No 35.
A charter of
the offices of
coroner and
serjeant, re-
toured prior
to the year
1681, at 4o
shillings of
old extent,
does not en-
title to a vote
for a Mem-
ber of Parlia-
ment,
I 756. july 16.
At the Michaelmas head court for the shire of Lanark, Andrew Stewart
claimed to be enrolled as a freeholder. The title he produced was a charter
under the Great Seal, with a sasine thereon, both dated in the year 1753;
and the subjects -contained in this charter are described in the following
words: ‘Tota et integra heraeditaria officia serjeandriae et coronatoris, et herae-
‘ ditariam gubernationem earundem, per universum dominium et quondam
‘ regalitatem de Kilbryde, jacen. in vicecomitat. de Lanark, cum eorundem
* officiorum proficuis, secundum antiquum morem et consuetudinem, viz. de
unoquoque aratro intra dict. dominium dimidium bollaº avenarum; de uno-
quoque seminante, aratrum non habente, unicam firlotam avenarum; de
unaquaque sasina dimidium mercae vel superiorem tunicam, seu vestimentum,
secundum velle recipientis, ex unoquoque domicilio unicum caseum compo-
situm ex lacte unius diei, cum unico denario ex unoquoque amerciamento
‘ curiae, duos solidos argenti.” To verify the old extent, two retours were
produced dated in the 1649, in which the valent clause is expressed in the fol-
lowing words: ‘Et quod dict. officia serjeandi et coronatoris, ac hereditaria
‘ gubernatio earundem, per dict. totam regalitatem dict, dominii de Kilbryde,
‘jacen. ut supra, velut in antiqua consuetudine habentur, valent nunc per
* annum octo libras monetae praedict. et tempore pacis valuerunt quadraginta
“ saidos ejusd. monetae.’ - s -
Upon this title Andrew Stewart being enrolled, Sir Archibald Stewart and
other freeholders presented a complaint to the Court of Session, insisting upon
the following objections. 1 ft, That by the act 1681, it is provided, “That
• none shall have votes in the election of commissioners for shires, but those
‘ who at the time shall be publicly infeft in property or superiority and in
* possession of a forty-shilling land of old extent; or where the old extent
* appears not, shall be infeft in lands liable in public burdens for his Majesty's
, supplies for L. 4oo of valued rent ;' and thence inferring, that Mr Stewart,
infeft in an heritable office only, and not in land, is not entitled to be a free-
holder; 2d, That the office, independent of the fees, is a subject not capable
Sir ARCHIBALD STEwART, &c. againſt ANDREw STEwART.
&
6
of valuation, the extent must be understood to relate to the fees only. And
it being instructed, that the fees were dismembered, what remained with Mr
Stewart, if any, could not bear an extent of forty shillings. ---"
To the 1st, it was answered, That the King's vassals in general, whether
holding lands or offices, were bound to give attendance on Parliament. And,
to the 2d, That the office itself was extended. And it was endeavoured also to
be made out, that none of the original perquisites were alienated, but only some
perquisites gifted afterward to the office by John Cumming Lord of Kilbryde.
The matter of the greatest importance insisted on by the complainers is,
that none but those who hold land of the Crown are entitled to elect or be
-ºr
SECT. 2. MEMBER OF PARLIAMENT. 57
elected members of Parliament. By the act I 14th, Pari. I 537, rone have
right but who have a forty-shilling layd holding of the King. By the act
13th, Parl. 1641, the fees to the Mémbers of Parliament are proportioned
upon the whole heritors holding of the King or Prince, according to the ex-
tent of their land or rents. By the act 35th, Parl. I661, beside the heritors
of a forty-shilling land, heritors who formerly held of bishops, and now of the
King, shall be qualified to vote, provided their land rent amount to Io chal-
ders of victual. Then follows the act 1681 above-mentioned, confining the
privilege to those who hold land of the King. And, lastly, By act 11th, Parl,
1690, for an additional representation of the larger shires, it is taken for grant-
ed that none but landholders have the privilege.
THE LoRDs found Andrew Stewart not entitled to be enrolled, and ordained
his name to be expunged out of the roll.
Fol. Dic. v. 3. p. 406. Sel. Dec. No I Io. p. I 56.
*** This case is reported in Faculty Collection:
1761. jungary 14.—ANDREw STEwART having been enrolled at the Michael-
mas head-court in Lanarkshire, upon a charter of the offices of coroner and
serjeant within the lordship and barony of Kilbryde, and retoured prior to the
year 1681, at 42 shillings of old extent, Sir Archibald Stewart and other free-
holders complained to the Court of Session.
Andrew Stewart produced, in support of his title, a grant, so far back as the
year 1397, whereby James Prince of Scotland, as Steward of the Lordship and
barony of 'Kilbryde, granted these offices, in fee and heritage, to William of
Lickprevick, armour-bearer to his Highness. The charter was in the follow-
ing words: ‘Sciant praesentes et futuri, nos Jacobum senescallum dominii
, baroniae de Kilbryde, dedisse, concessisse, et hac praesenti carta confirmasse,
, dilecto Armigero nostro Gulielmo de Lickprevick, filio quond. Joannis de
• Lickprevick, officium serjandi, et hereditariam gubernationem ejusd. per
totam regalitatem dominii de Kilbryde, velut in antiqua consuetudine habea-
, tur in feodo et Hereditate in perpetuum, secundum infeodationem, donatio-
, nem, et concessionem Dom. joannis Cumyne quond. Domini de Kilbryde, viz.
, infeodavit, concessit, et donavit, de Omni aratro infra dictum dominium, dimi-
diam bollam avenarum, de omnibus seminantibus non habentibus aratrum,
firlotam avenarum, de Omni Sasina dimidiam marcam, vel superius vestimen-
, tum, secundum velle recipientis, de omni domicilio caseum compositum de
, lacte unius diei, cum singulo denario; et de omni amerciamento curiae duos
... solidos argenti; insuper, et officium coronatoris ejusdem dominii, cum omni-
bus pertinentiis et articulis sibi juste pertinen. et libertatibus quibusque :
, Tenend. et Habend. dicta officia serjandi et coronatoris dicto Gulielmo, here-
... dibus suis, et suis assignatis, de nobis, et heredibus, assignatis, et successoribus
H
3.
S.
sº MEMBER OF PARLIAMENT. Div. II,
No 35. ' nostris quibuscunque; cum omnibus commoditatibus, eschetis, libertatibus, et
‘ asiamentis, ac justis suis pertinen, quibuscunque, tam non nominatis quam
‘ nominat. ad dicta officia serjandi et coronatoris spectan. Seu quovis modo spec-
* tare valen. in futurum, etiam in quo quidem officium serjandi antecessores
dicti Gulielmi de Lickprevick feofati et vestiti decesserunt: Et nos vero, dic-
‘tus Jacobus, heredes nostri, assignati, et successores nostri quicunque, dicta
‘ officia, ut praemittitur, dicto Gulielmo de Lickprevick, heredibus suis et assig-
4 * * ‘ natis, contra omnes mortales warrantazibimus, et quietabimus, et in perpetuum
º ‘ defendabimus.’ ^-
--. Mr Stewart also produced several retours which agreed with each other.
One of them run in these words : ‘Quod dicta Elizabetha Lindsay obiit ulti-
‘ mo vestita et sasita in officiis serjandi et coronatoris, et hereditaria guberna-
tione earundem, per totam regalitatem dominii de Kilbryde, &c.; et quod
“. . ;- ‘ dicta officia valent nunc per annum octo libras, et valuerunt tempore pacis
2 < * *-* ‘ quadraginta solidos; et quod tenentur per servitium wardae et relevii.’
From thence Mr Stewart contended, That as these were proper feudal offices,
,” granted in fee and heritage, held by the tenure of ward and relief, and both
Qº the old and new extent to the legal amount verified by retours prior to the
1681, as all military tenants holding of the Crown were originally obliged to
attendance in Parliament, and as the later statutes made no alteration with
respect to the nature of the subjects which should entitle to vote, but only
modified their value, he was entitled to be enrolled.
Objected; Imo, Where offices were given in fee and heritage, the natural
obligation upon the vassal was, only to perform faithfully the duties of the
office, that is, the service of it; but not to give attendance in Parliament, un-
less it was either implied in the nature of the office, or provided in the char-
ter. It is absurd to suppose, that the heritable offices of gaoler to a particular
prison, of coroner to a petty barony, or of cook to his Majesty, obliged the
holders of all these offices to attendance in Parliament.
2do, Heritable offices are not lands, in terms of the act of Parliament 1681.
The Court interprets this statute strictly, so as not to comprehend other heri.
table subjects, such as rights of annualrents or feu-duties, to which the word
land applies as properly as it does to heritable offices.
3tio, The act 1681 requires that the voter should be in possession of a 4O
shilling-land of old extent; but, as the office has been in desuetude for cen-
turies past, the claimant cannot subsume that he is in possession.
THE LORDs ordered Mr Stewart to be struck off from the roll.
For Objectors, Advocatuſ, Marqueen. Alt. Lockhar”, Johnston, 7. Dalrymple. Clerk, Home.
j. M. • * Bac. Col. No 3. p. 5.
Secr. 2. MEMBER or PARLIAMENT,
1757. November 20.
John Fordyce of Gask against Uroghart of Meldrum.
IN a complaint by John Fordyce of Gask against Urquhart of Meldrum,
and other freeholders of Aberdeenshire, for refusing to enrol him in the roll
of freeholders for that county ; the title he founded Oſl WaS a retour in the
year I513, which retour, in answer to the first head of the brieve, viz. & pe
• quibus terris et annuis redditibus quondam Thomas Burnet obiit sasitus :
bears the answer in these words, “Quijurati dicunt, Quod quondam Thomas
* Burnet, pater Willielmi Burnet, latoris praesentium, obiit ultimo vestitus et
sasitus de terris de Gask, cum suis pertinentiis, jacen. &c. et de uno annuo
• redditu tredecem solidorum et quatuor denariorum usualis monetae Scotiae,
annuatim de terris de Balinalie, jacen.’ &c. Arid,
In answer to the fifth head of the brieve, viz. ‘Et quantum valent dictæ
• terrae et annuus redditus nunc per annum ; et quantum valuerunt tempore
pacis?’ the retour bears, Et quod dictae terrae et annuus redditus valent
• nunc, per annum, duodecim mercas, et valuerunt decem tempore pacts.
Objected for Urquhart of Meldrum ; The act of the 16th of the King pro-
vides, ‘That no person shall be entitled to vote, in respect of the old extent
of his lands holden of the King or Prince, unless such old extent is proved
‘ by a retour of the lands, of a date prior to the 16th September 1681, And,
• 2dly, That no division of the old extent, made since the aforesaid 16th Sep-
• tember 1681, or to be made in time coming, by retour, or any other way,
• is or shall be sustained as sufficient evidence of the old extent.” But here
the retour contains not only the lands of Gask, but also an annualrent of one
merk out of other lands; and there is no room for division since the year
1681. . . . . . - - . . . - . º º
Anſwered for Gask; All that the law of the 16th of the King requires is,
that it be proved, by a retour prior to the year 1681, that the lands on which
the title is founded were a forty-shilling land of : old extent. Now, 1t 1S trati
juris, that annualrents are retoured valere seipsum > and therefore, deducting
the value of the annualrent from the retour, which it. is absolutely Certain
must be exactly one merk, there is a proof incontrovertible, that the lands of
Gask were, of old extent, nine merks ; which is far more than the forty-shil-
ing required. - . . .
lº. found John Fordyce entitled to be enrolled.
For Fordyce, ſy. Grant. . For Urquhart, Burnett, Ferguson. .
Fol. Dic. v. 3. p. 405, Fac. Col. No 61, p. 99.
- H2 -
*Y. D.
2/
No 36.
Objected a-
gainst a claiºn,
that the
fetour con-
tained an an-
nual rent not .
separated
from the ex-
tent of the
lands.
Answered,
an annual rent
is always re-
toured valere
reipſum, and
deducting it
there remains
more than
the requisite
valuation.
The objec-
tion was re.
pelled.
6o MEMBER OF PARLIAMENT, Div. II.
No 37.
Objected to
a retour, that
it was not
a verdict on
a brief of
in quest, an i
that the lands
were church-
lands, and as
neither the
new extent,
nor feu duty,
were speci-
fied, it did
not appear
that the old
ext ent W 3 S
distinct from
the latter.
Answered,
In O Statilte
requires, that
the retour
should pro-
ceed on a
brief of in-
quest, and
the design of
the retour
was te fix the
old extent,
by which the
lands were
to pay taxes,
2nd it must
have been
distinct from
the feu-duty,
because that
was required
by a statute
passed re-
cently before
the retour.
The retour
was found to
be sufficient
evidence of
t",e old ex-
t – int.
1761. February 27. - . - *
MR, DAVID MONGRIEFF againſt John ERSKINE, and Others.
THE defenders claimed to be enrolled as freeholders in the shire of Perth
upon the old extent of their lands, which had all belonged to the abbey of
Culross. As evidence of the extent, they produced a retour extending the
lands of the Lordship of Culross, in obedience to a commission under the Great
Seal in the year 1598. They were accordingly enrolled, and Mr Moncrieff
complained, and stated the following objection.
This retour is not good evidence of the old extent of the lands. It is admit-
ted that they belonged to the church, and no retour is sufficient, for proving
the old extent, but such as proceed upon brieves for serving heirs, wherein the
old and new extent and feu-duties in feu-lands are set forth and distinguish-
ed. In the present retour there is no mention of the new extent or feu-duties;
so that it does not appear that the old extents retoured are distinct from the
feu-duties, as is expressly required by the act 1681. - -
This retour seems to be made in obedience to the acts 1594 and 1597, pro-
bably the former directing all feu-lands annexed and others to be retoured to
merk and penny lands, that the owners may be known, and that they may be
taxed. But neither of these acts directs the merks or pennies to be the old
extent; and indeed it could not be so, as that extent, with regard to all but
church-lands, was fixed in the time of Alexander III. or sooner; and suppos-
ing this was the old extent, the act 1474 requires the new extent also to be
specified in retours, and the statute 1681 directs the feu-duties to be distin-
urished. This last act seems to have intended, that in church-lands, where
the old extent does not appear to be distinct from the feu-duties, the proprie-
tors should only vote by the valuation. -- - - -
Answered for the respondents; That neither the act 1681, nor that of the
16th of George II, require that the retour should be upon a brieve for serving
heir, or that it should point out the new as well as the old extent. Any retour
therefore is sufficient for the purpose. - -
Before the Reformation, temporal lands were taxed by the old extent, and
church-lands according to Bagimont's roll. After the church-lands were an-
nexed to the Crown, and power was given to the King to feu them out, it was
resolved that all the lands in Scotland should be taxed in the same manner;
and, for that purpose, an act was passed in the year 1594, appointing all feu-
lands belonging to the King to be retoured to merk and penny lands, that the
feuers might be taxed according to their retours. This order was confirmed
by act 281, 1597; and, in consequence thereof, a commission was issued un-
der the Great Seal in the year 1598, by authority of which the retour in
question was made. And the intention of this retour was to fix and ascertain
the old extent of the lands in obedience to the act of Parliament.
SECT. 2. MEMBER OF PARLIAMENT. 61
The old extent has always been, and still is, one of the qualifications that
entitle freeholders to vote for commissioners to serve in Parliament. Before
the act of the 16th of George II. this might have been proved by any legal
proof; but now a retour prior to the 1681 is necessary, and the respondents
have produced one in 1598. It is clear that the old extent therein contained
must be free of the feu-duties; for this is particularly ordered by the acts 1594
and 1597; and as the intention of making this retour was to fix the sum for
which these lands were to pay taxes, the jury never would confound the ex-
tent with the feu-duty. The retour in question, therefore, must be held as
good evidence of the old extent, unless the complainer will reduce it. There
was no occasion to point out the new extent in this retour ; because it was
only intended to regulate the payment of taxes, with which the new extent
had no concern.
There is no doubt that the extent here retoured is the old extent. It is ex-
pressly declared in the retour to be so ; and there was no difficulty in fixing it.
Many temporal lands were acquired by the church after the days of Alexan-
der III, when the old extent was fixed; and where such evidence of the extent
did not remain, the act 1597 directs, that such lands should be ‘retoured to
• the same avail, quantity, and proportion, as any other lands lying next ad-
jacent to the same, holding of his Majesty, are retoured to;' and it is well
known that this is the rule in chancery, by which inquests are directed to
extend lands when no ancient record can be found of the old extent. -
It has been the practice of the freeholders in the several counties of Scot-
land to receive retours like the present as the best evidence of the old extent.
This, particularly, is the case in the county of Mid-Lothian, where the old
extent of most of the lands is vouched by a retour dated in March 1554, and
made for the same purpose with that in question. This retour was admitted
to be sufficient evidence of the old extent, in the case Chalmers against Tytler,
in the year i755, No 34. Jupra. *
Replied for the complainer; That it was the old extent only which formerly
qualified any man to sit in Parliament, either personally or by his represen-
tative; and it was the only valuation by which taxes were paid. But the
material point here is, that church-lands never were properly extended nor
paid taxes according to the old extent. The valuation in question is by no
means the old extent, which was certainly as old as the days of Alexander III.
and perhaps before that period. Though the retour bears to be made juxta
extentum antiquum hufuſmodi terrarum, the meaning is, that the lands were
valued in proportion to the old extent of other lands of the same kind or qua-
lity, as the lands of the King's property were directed to be extended by the
taxation act 1497. The respondents therefore must maintain, that this new
valuation is to be held as equivalent to the proper old extent ; but this they
cannot do, unless they are able to show that it was held to be the real valua-
-- No 37.
62 MEMBER or PARLIAMENT. Div. II.
No 37. -
tion of the lands according to which they paid taxes; for upon that the right
of voting for Members of Parliament has always been founded. -- -
Upon considering the different acts imposing taxations in Scotland, it is
clear, that the scheme of extending the church-lands, and making them pay
the land-tax, according to the old extent properly so called, never took effect.
It is true, that the act I 594 directs these lands to be retoured to merk and
penny-lands, that they might pay taxes accordingly ; but it appears from the
taxation acts 1597, 1621, 1633, and 1665, that they still continued to pay
their taxes according to Bagimont's roll till the year 1657, when Oliver Crom-
well’s valuation was adopted as the general rule for paying taxes all over the
kingdom. In the act 1597, a commission is granted to certain noblemen and
prelates to make up an exact tax-roll, according to which this taxation was to
be paid. Accordingly, there is still extant a roll of the taxations that was
made up by these commissoners, of all the lands in Scotland that paid taxes by
the old extent. In this roll the lands in Perthshire are particularly mentioned,
but no notice is taken of the Lordship of Culross, or of any other church-lands
in the county. Hm the acts 1621 and 1633, it is directed, that the taxations
shall be uplifted from church-lands, in the same manner as formerly, and par-
ticular places are appointed where the prelates or lords of erection shall con-
vene their vassals and feuers, in order to distribute the taxation among them
in proportion to their possessions; and, among others, the burgh of Culross is
appointed for the Lord of Culross to convene his vassals.
The reason why this scheme, with regard to church-lands, was not carried
into execution, was, because the clergy were averse to it. This appears clearly
from a retour of the old extent in the county of Aberdeen in 1548, recorded
in the Sheriff-court books of that shire, in which it is particularly set forth,
that neither the clergy, nor any person for them, would appear to give the
Sheriff any assistance in this valuation.
The church-lands not only never paid taxes according to the old extent, but
nobody ever voted upon that qualification. The act 1661 directs, that none
shall vote upon church-lands but those who have L. looo Scots holding of the
King, all feu-duties being deducted. The act 168 I adopts Cromwell's valua-
tion as the rule for voting upon church-lands. Had the proprietors of these
lands paid taxes and voted by the old extent, they would not have been distin-
guished from temporal lands, or L. Ioco Scots have been fixed as the qualifica-
tion by the act 1661. - - -
It is equally certain, that in serving heirs, juries never had any regard to the
extent of church-lands made out by commissioners, as in the present case ; but
to answer that head of the brieve, they were in use to take the feu-duty of the
lands for the old extent, which abuse was rectified by the act 1681. This is
the case with regard to Mr Erskine of Balgonie, one of the respondents; and,
\
SECT. 2. MEMBER or PARLIAMENT. . 63
if the other respondents were to produce their retours, they would be found to
be in the same situation. -
From what has been pleaded, it is clear, that the old extent of church-lands
never was regarded, either in paying taxes, in voting for Members of Parlia-
ment, nor by juries in serving heirs; and therefore the respondents ought not
to have been enrolled as freeholders.
The deed or retour founded on in the present case can never be considered
as proper evidence of the old extent. The act of the 16th of George II. by the
word retour, plainly means a verdict upon a brieve for serving heirs. Lord
Stair and Lord Bankton define a retour to be the verdict of an inquest returned
to chancery in answer to a brieve issuing from that office. It can never extend.
to such retours as the present, made upon a commission under the Great Seal.
Some church-lands may indeed have an old extent; but these can only be
lands that were mortified to provostries or collegiate churches, none of which
were erected before the reign of Robert III. ; but this can never apply to lands
belonging to monastries and abbacies, the greatest part of which were founded
about the time of David I. ; so that none of these lands ever could have been
extended. The case of Chalmers against Tytler can have no influence upon
the present question ; because the retour 1554 comprehended nothing but tem-
poral lands which had a proper extent, Besides, this point neither was debated
nor determined by the Court.
THE LORD's repelled the objection made to the retour produced for the res-
pondents, and dismissed the complaint.
Act. Burnet, Montgomery. Att James Erline. Clerk, justice.
P. M. Fol. Dic. v. 3. p. 405. Fac, Col. No 25, p. 48,
------sº--———
I761. July 23. ~
Lieutenant JAMAS STEwART against Mr DAVID DALRYMPLE,
A CoMPLAINT was entered in the Court of Session by Lieutenant James Ste-
wart, against some freeholders of the shire of Wigton, for refusing to put him
upon the roll of electors. It was anſwered, That the evidence produced of
the old extent of his lands was a retour dated anno 162 5; bearing indeed a va-
lent clause of more than 4o shillings of old extent, but bearing at the same
time the lands to be held of the bishop of Galloway; which cannot be good
evidence of the old extent, because church-lands were never extended.
It was urged historically for the respondent, That the act 114th, Parl, 1587,
appointing the small barons to elect commissioners to Parliament, entitles no.
freeholders to vote, but who has a forty-shilling land in free tenendry, held
of the King.” This clause is necessarily confined to temporal lands; because
previous to it church-lands by act 29th, Parl. 1587, had been annexed to the
crown; and therefore could not be held of the crown by small barons, or by
No 37.
No 38.
A retour
bearing forty
shillings of
old-extent of
church-lands
found not to:
entitle to a
Reversed on.
appeal. -
64. MEMBER or PARLIAMENT. Div. II.
To a
No 38.
No 39.
Y.
any barons. Further, it is certain that church-lands were never brought un-
der the old extent, to which the foregoing clause evidently refers ; and accord-
ingly, though church-lands were all along subjected to a part of every taxa-
tion, yet that part was subdivided upon particular lands, not by the old ex-
tent, which did not comprehend them, but by Bagimont's roll and other old
rentals of these lands. It is true, that the bulk of the church-lands were after-
wards parcelled out to be held of the crown; and it was thought reasonable,
that the proprietors of such lands, though they could not have the qualifica-
tion of a forty-shilling land, yet might be entitled to vote upon an equivalent
value. Hence the act 35th, Parl. 1661, ‘That besides all heritors holding a
forty-shilling land of the King in capite (meaning heritors of temporal lands)
also heritors &c. who held formerly of bishops or abbots, and now of the King,
shall be capable to vote, provided their yearly rent amount to ten chalders of
victual, or L. Icoo.” From this deduction it evidently appears, not only that
the foregoing retour must be erroneous, as far as it bears an old extent of
church-lands; but also, that no proprietor of such lands can be entitled to
vote, except upon the last mentioned qualification of the act 1661.
To this reasoning nothing could be opposed, but the bare possibility that
the lands in question might have been temporal lands in the reign of Alexan-
der III, when the old extent was established, and have afterwards been acquir–
ed by the church. But to this the obvious answer was, That it is incumbent
upon the complainer to give evidence of his qualification, by proving that the
lands in question were temporal lands when the old extent was made, accord-
ing to the inviolable maxim affirmanti incumbit probatio. The retour plainly is
no proof, nor even presumption of this fact. For the valent clause, being .
found in most retours, and necessary in all retours of temporal lands, came to
be thought by ignorant practioners to be essential; and so was commonly add-
ed in the retours of church lands, to which it had no relation.
* THE LORDs sustained the objection to the retour, and dismissed the com-
plaint.” (Reversed on appeal.) *-
- Fol. Dic. v. 3. p. 466. Sel. Dec. No 183. p. 248.
*** The matter of this case is included in No 18. rupra.
r * -
-mmº ºne---
1761. july 28. STEwART againſt DALRYMPLE.
This objection was repelled, that a retour named no more than twelve per-
sons of the inquest, as it appeared from the records of chancery, that the
numbers were various, and frequently less than twelve.
- Fol. Dic. v. 3. p. 404.
*** This case is No #8. Supra. -
*...* The same was found in Stewart against Maxwell, No 20, supra,
MEMBER or PARLIAMENT.
65
1787. February 20. WILLIAM MACDowALL against THOMAS BuchanaN.
MRT Homas Buchanas's claim to be enrolled as a freeholder in the county
of Renfrew, was partly founded on the superiority of the lands of Blackburn,
which were said to be a twenty-six shilling eight-penny land of old extent.
In evidence of this, a retour was produced, in which it was stated, that the
deceased Robert Sempill died last vest and seised “ in tota et integra dimidie-
“tate viginti sex solidatarum et octo denariatarum terrarum antiqui extentus
“ de Blackburn, extenden. ad tredecim Solidatarum et quatuor denariatarum
“terrarum ejusdem.' And it was certified in the valent clause, quod praedicta
“ aequalis dimidietas praedictae viginti sex solidatarum et octo denariatarum ter-
“rarum de Blackburn, cum pertinent. valet nunc per annum tribus libris sex
“ solidis et octo denariis usualis monetae hujus regni Scotiae, et tempore pacis
* & valuit tredecim solidis et quatuor denariis monetae praedictae.”
It was objected to this retour, That though it sufficiently proved one half of
the lands to have been valued at 13s. 4d. it did not thence appear, that the
other half was precisely of the same value. -
THE LORDS sustained the objection.’
Act. Lord Advacate, et alii. Alt. Maćlaurin, ðt alii º Clerk, Rober/ran.
6. -- Fol. Dic. v. 3. p. 404. Fac. Col. No 321. p. 495.
1787. February 20. * –
WALTER Scot and ARCHIBALD ToD against John MILLAR.
THE superiority of the lands of Ardgowan, belonging to Sir Michael Stewart,
was conveyed by him to Mr John Millar ; whom failing, to Mr Shaw Stewart,
Sir Michael's eldest son, his heirs and assignees whatsoever; and this, with
the exception of a liferent which had been formerly made over to another
person. The yearly feu-duties amounted only to L. 2 : I4:8; Sterling.
In virtue of this conveyance, Mr Millar was enrolled among the freeholders
of the county of Renfrew, as fiar of the superiority of the above mentioned
lands, to vote in the absence of the liferenter. .
In a complaint preferred in the name of Walter Scott and Archibald Tod,
on occasion of these proceedings, it was
Pleaded, It is now held, That a qualification founded on a liferent of supe-
riority is nominal and fraudulent, when the produce of the right is so very in-
considerable as not to defray the expence of the necessary writings. A fee
of superiority, of an equal extent, * certainly be judged of in the same
No 4Oe
No 41.
Objected to
a retour, that
the lands had
been valued
along with
the offices of
Coroner and
mair of fee,
which were
now in disuse,
and which, at
any rate,
could not give .
a freehold
qualification.
To this it
-was thought
a sufficient
2nswer, 1ſt,
That in the
retour no va- .
lue had been
put on these
offices; and,
ce MEMBER or PARLIAMENT.
Div. II.
No 41.
2dly, That by
another re-
tour, which,
though not
mentioned in
the claim, had
been produ-
ced in the .
freeholders’
court, it had
been certified,
“. Quod dicta
officia coro-
matoris et ma"
ris feodi, &c.
nunc valent
per annum
debito exer-
cendo sui ser-
vitii, et tan-
tum value-
1 unt tempore
pacis,”
manner. The conveyance in perpetuity of a right which is of no value, can-
not be distinguished, in point of nominality, from a grant of the same right.
to be held during the lifetime of the grantee. In truth, the fee in the pre-
sent case is, if possible, more nominal than the liferent; for, with regard to
this last, the holder ma y, at least during his life, recover from the vassal the
annual prestations, such as they are ; which the fiar, if he do not survive the
liferenter, will never have an opportunity of doing. -
Answered, There is nothing in the present case which can difference the
ſee of superiority held by Mr Millar from those of the same nature, which are
expressly recognized by the statute of I681, and which have ever since been
held to constitute an unexceptionable freehold qualification. As to the .
clause of substitution in favour of Mr Shaw Stewart, it has been repeatedly
determined, that this is merely of the nature of a destination, alterable by the
immediate holder of the right, and of which the person favoured cannot avail
himself, without becoming liable, as heir of provision, for the debts of his pre-
decessor. - - -
It was separately objected to this enrolment, That by the retour referred
to in the claim which had been exhibited for Mr Millar, the lands had been
valued along with the offices of coroner and mair of fee, which were now in
disuse, and which, at any rate, could not give a freehold qualification. But
to this it was thought a sufficient answer, Imo, That in the retour above men-
tioned no value had been put on these offiées, the total amount of the sums in
the valent, precisely agreeing with the value of the other articles, as specified
in the descriptive clause ; and, 2dly, That, by another retour, which, though
not mentioned in the claim, had been produced in the freeholders’ Court, it
had been certified, “Quod dicta officia coronatoris et maris feodi, &c. nunc
valent per annum debito exercendo Sui servitii, et tantum valuerunt tempore.
pacis.” - *. • * *
“THE LORD's dismissed the complaint.”
Act. Geo. Ferguſon, et alii. Alt. Maclaurin, et aſii. Clerk, Robertion.
C. Fol. Dic. v. 3. p. 404. Fac. Col. No 317, p. 491.
*...* In a case, Murray of Broughton against Clark, decided T4th July I774,
the question was, Whether the retour afforded sufficient evidence of the sepa-
rate old extent of the lands, exclusive of the office of Bailie? In order to show
that it did not, it was maintained, That there was no correspondence between
the descriptive and valent clauses, without holding that the office had been ex-
tended to six merks, of which there was no evidence in the retour; therefore,
the description of the lands at five merks might have been erroneous. The.
Court sustained the objection—see Wight, p. 179–See APPENDIx.
SEct. I. MEMBER or PARLIAMENT, 67
*
DIVISION III,
The Qualification of Freeholders possessing Lands liable
- in Public Burden for L. 4oo Scots.
| SE CT. I.
How far Teinds are considered in Questions concerning the
Legal Valuation.
1745. january 29. Sir Patrick DUNBAR againſt ST CLAIR of Bremster.
ST CLAIR, of Bremster is possessed of lands in the shire of Caithness, valued
at L. 370 Scots, and having acquired from the patron a right to the teinds
which formerly belonged to the parson, and which were valued since the act
establishing the patron's right at L. 62, claimed a vote thereon. It was object-
ed, That lands and not teinds gave title to vote.
Anſwered, He did not claim on the teinds of other lands but his own:
That the teinds being only a servitude, when they were purchased in the
lands became free, and the same disburdened were of more value than L.400.
THE LORDs, on hearing in presence, sustained the title. -
Fol. Dic. v. 3. p. 406. D. Falconer, v. 1. p. 61.
#753. March 3. * * * -
Captain John Scott and Others, Complainers, against Captain John Suther-
- LAND of Forse, Respondent. -
CAPTAIN Scott purchased the superiority of part of the estate of Hemp.
riggs, lying in the county of Caithness; which estate stood valued in cumulo,
in the cess-books of the shire, at L. 3,6co. -
Captain Scott made over part of his purchase to Sir Robert Gordon and Mr
Hay of Leys; and, in July 1750, these three gentlemen obtained charters, un-
der the great seal, of their respective lands, and were duly infeft.
w I 2
No 42.
Lands with -
the teinds
thereof, mak-
ing up the
full valuatiqn,
entitle.
No 43.
One having
right to lands
valued in the
cess-books at
- L. 4oo is en-
titled to vote,
although he
has not a right
to the teinds
of these lands,
and although
if a fifth were
68. MEMBER or PARLIAMENT. Div. II.
No 43. Thereafter, they applied to a general meeting of the Commissioners of Sup-
flºe ply, to have the valued rent of their respective lands ascertained; which ac-
*y & sº - - - -
tion would
cordingly was done, by proportioning the total valuation of the estate of
Hempriggs to the present real rent thereof, and of the several parcels belong-
ing to the complainers, whereby it appeared, that the valued rent of the part
belonging to each of them exceeded L. 400; and, by order of the Commissioners,
this division was entered in the valuation-books of the shire, and the cess di-
rected to be uplifted accordingly. . -
These gentlemen severally entered their claims before Michaelmas I75I,
to be enrolled in the roll of electors for the said county, in terms of the sta-
tute of 16th George II.; and produced their infeftments, with the evidence of
the division of the valued rent, to the meeting of the freeholders; but Cap-
tain John Sutherland of Forse, and a majority of the meeting, refused to en-
rol them. --> - -
A complaint was thereupon exhibited before the Court of Session against
Captain Sutherland ; who, in answer thereto, repeated the objections upon.
which the enrolment had been refused by the freeholders; particularly, -
Objected, That there was no proper evidence that the lands in which any of
the complainers was infeft amounted to L. 4oo of valued rent; for that the
total valuation of the estate of Hempriggs, extending to L. 3,600, arose from
the joint value of stock and teind; consequently, the several proportions
thereof, at which the complainers’ lands had been rated, must also be for both
stock and tend; but the fact is, that the complainers have no right to
the superiority of the teinds of their several lands. Their last charters indeed
comprehend the teinds as well as the lands; but this must have happened
by mistake, as the deeds of conveyance in their favour did not dispone, nor
contain any warrant for resigning the teinds. And it appeared, that their
authors had no other right to the teinds, but by sub-tacks flowing from the
Bishop of Caithness. And after deducing a fifth part from the valuation of
each of their lands to answer for the teinds, it appears, that none of them will
have the legal qualification of being publicly infeft in lands holden of the
Crown, of L. 4oo.of valued rent. S t • ‘. .
And, in order to prove, that the teinds were included in the total valuation
of the estate of Hempriggs, the acts of convention 1643 and I649 were refer-
red to ; which ordain, that every person’s rent should be valued in stock as
well as in teind, with deduction of the burdens affecting the same; and which
method was accordingly followed by the Commissioners for valuing the seve- .
ral counties of the kingdom, as appears from some of the original valuation.
books still extant, and particularly in the re-valuation of this county of Caith-
ness, in pursuance of an act of Parliament in 1701, the directions of the above
acts of convention appear to have been followed; for, where the teind was se-
parately possessed, it was separately valued from the stock; but where the
heritor was in possession both of stock and teind, which was the case in the
not remain,
SECT. I. MEMBER of PARLIAMENT. 69
estate of Hempriggs, no distinction was made; but the valuation was ascer-
tained according to the total rent of the land in stock and teind, after de-
ducting the teind-tack duty payable to the titular, and other burdens affecting
the same; so that the valuation of this estate appears to have been both for
stock and teind, though the heritor had no right of property in the teinds, but
possessed them by a sub-tack from the Bishop. - -
And as such sub-tack is not a title of freehold by the law of Scotland,
consequently the valued rent of the teinds of the complainers’ several lands
possessed under that title, cannot enter in computo, to make up the L. 4oo va-
luation required by the act 1681. Had the teinds been separately valued, the
complainers would have had no pretence to a vote; and their having been
jointly valued with the stock, cannot make their right better, when it appears,
that part of that joint valuation belonged to the teinds.
Anſwered for Captain Scott and the other Complainers, Imo, Their infeft-
ments produced before the freeholders contain the teinds as well as the lands;
and the freeholders have no jurisdiction by law to call for, or cognosce upon,
the warrants of any infeftment; and, if this is so, neither has the Court of
Session jurisdiction, in this state of the case, to judge of the above objections
to the complainer's titles. These may be the ground of a reduction before
their Lordships, in another capacity, at the instance of any party having in-
terest; but, upon the present complaint, their Lordships can-only judge as
a court of appeal; and pronounce such judgment as the freeholders, according
to the powers committed to them ought to have pronounced.
2do, et separatim, Whatever way the right of the teinds may stand, the com-
plainers were entitled to have been enrolled by the freeholders; as it still re-
mained true, that, in terms of the statutes 1681, and 16th of King George
II. they stood infeft in the superiority of lands holden of the King, “ liable
in public burden for his Majesty's supplies for L. 4oo of valued rent.” And
these statutes do not distinguish whether such valued rent of the lands arises
from stock or teind, or both ; or whether the proprietor or superior of such lands
hath an heritable right to the teinds of the lands or not. The law requires,
that the party claiming a vote be proprietor or superior of lands of L. 4oo va-
Iued rent, and requires no more; and this hath been constantly held to be law
since the statute 1681, over the whole nation. But according to the respon-
dents' new doctrine, the proprietor or superior must either produce an herit-
able right to his teinds, or he must be proprietor or superior of lands of L. Soo
valued rent. It is impossible to foresee what confusion and dangerous conse-
quences this doctrine might introduce into the constitution of the kingdom.
It seems plainly to import a repeal of all the statutes made with respect to the
qualifications of electors; particularly the aforesaid statute of the 16th of
King George II. which declares, “That lands holden of the King or Prince,
liable in public burdens for L.4co Scots valued rent, shall, in all cases, be a suf-
fiéient qualification of a freeholder.”
No 43.
70 MEMBER or PARLIAMENT. Div. III.
No 43.
And, with respect to the acts of convention 1643 and 1649, which the re-
spondent sets forth as the foundation of the valued rent of Scotland, the com-
plainers differ from him in point of fact; for it appears from history, that the
united Parliament of Great Britain and Ireland, held in the 1656, during the
Protectorate of Oliver Cromwell, imposed a land-tax upon the three kingdoms,
amounting in Scotland to L. 6ooo Sterling per month, the same land-tax that
continues to be levied in Scotland at this day; and as this was different from
the land-tax levied pursuant to the acts 1643 and 1649, by the name of
monthly maintenance, which amounted to L. 9doo Sterling monthly, and up-
wards; so it appears, that it was uplifted by another valuation, made at that
time, which was considerably less than that of the 1643 and 1649, and which
last valuation, taken up in the 1656, is certainly what is referred to in the act
of convention I667, and in the subsequent cess acts, both before and since the
union of the two kingdoms; so that the respondents whole argument, built
upon the acts of convention 1643 and 1649, and the valuation proceeding
thereupon, entirely falls to the ground, as the land-tax of Scotland is now paid,
and the qualifications of electors regulated, not by the valued rent taken up
in pursuance of the acts of convention, but according to the after valuation in
the 1656. - - - . * - #
THE LORDs, in their reasoning, seemed to be chiefly moved by the second
answer for the complainers, founded upon the words of the statute 1681; and
“ Found, that the petitioners, in virtue of their titles produced before the
freeholders of Caithness, were sufficiently entitled to have been enrolled in the
roll of electors of a Member of Parliament for the said shire; and that the ob.
jections to their titles were not relevant; and that the freeholders did wrong
in refusing to enrol the petitioners; and therefore ordained them to be added.
to the said roll, and decerned and declared accordingly.”
Act. R. Craigie & R. Dundas. Alt. ja. Ferguſon & Alex. Borwel. ' Clerk, Pringſ.
A1. - . Fol. Dic. v. 3. p. 406. Fac. Col. No 71. p. IoS.
*** Lord Kames reports this case.
1753. March 2—Wars in place of the old method of taxation, the whole
lands of the kingdom were valued, whether held of the King or of a Subject,
and also all real rights relating to lands, feu-duties, teinds, mines, fishings, &c.
the method of valuation established by the act of convention 1643, and by af.
ter statutes, was to value in cumulo all taxable subjects belonging to the same
person; and these subjects were not valued separately, unless when in the,
hands of different persons. This was chosen as the most expeditious method
in a new form of raising the land-tax, which was intended as an Expe riment,
and might possibly not be continued. But as this, by experience, was found
a more equal mode of levying a land-tax than what was formerly in use, and
much less troublesome, it was followed out by subsequent Parliaments, and
SECT. r. MEMBER of PARLIAMENT. - 7 I
has now gained a firm establishment. But then there were two remarkable
defects in this mode, which occasioned a multitude of re-valuations. One was
the valuing in cumulo different subjects belonging to the same Proprietor, which
must be valued separately when they come to be in the hands of different
proprietors. The other was the valuing of temporary rights, such as liferents,
tacks, mines, for which a tax could not be paid after they were exhausted.
With regard to the first, it is appointed by the act of convention 1667, “That
where lands, teinds, or other real estate, did, the time of former Valuations,
pertain to one person, and are since dismembered, and disponed to several per-
sons in parcels, so that the value of each parcel by itself cannot be known by
former valuations, the Commissioners are empowered to value of new again,
provided no alteration be made gf the total sum imposed upon the shire.”
With regard to the second, I find no provision made. But as the sum imposed
upon each shire was made unalterable, that part of the tax which was origin-
ally laid upon temporary rights, must have been added to the tax which was
laid upon perpetual rights, gradually as these temporary rights were at an end ;
and this must have been the work of the Commissioners. And now the in-
convenience of laying any part of the tax upon temporary rights appearing
from experience, temporary rights bear no longer any part of the tax ; the
whole resting upon perpetual rights. -
The estate of Hempriggs, in Caithness, was partly held of the Crown, partly
of the Earl of Caithness. The teinds of that estate, belonging to the Bishop of
Caithness, were possessed by the proprietor upon along lease, when the lands of
Scotland were first valued in order to levy a land-tax in the new form. The
estate in cumulo was valued at L. 3600 Scots yearly, in which the teinds must
have been included, for the reasons above given, that they were possessed by
the proprietors of the lands. Sir Robert Gordon, Hay of Leys, and Captain.
Scot, having acquired right by progress to the superiority of that part of the
estate of Hempriggs which held of the Earl of Caithness, in order to entitle
themselves to be voters in that shire ; they obtained from the Commissioners a
separate valuation of that part of the estate, which amounted in the whole to
abeve L. 1200 Scots yearly, as also a separate valuation of their shares separately,
by which it appeared that they had above L. 4oo each; and though they pur-
chased the lands only, and not the teinds, which belong to the King, in place of
the bishop, yet to make all secure, they slipt, the teinds into their signatures,
which were passed in Exchequer without advertence, and thereby the teinds
came to be ingrossed in their charters under the great seal, along with the lands.
These titles were produced to the Barons at the Michaelmas Head Court, and
were rejected, as not sufficient to entitle them to be put upon the roll of elec-
torS. * - -
Against this judgment a complaint was exhibited to the Court of Session by
the three gentlemen, and the principal ground insisted on in the answers Was, ,
That these gentlemen had no right to the teinds, which were slipt into theirs
No 43.
72 MEMBER OF PARLIAMENT, DIv. II.
No 43.
charters by inadvertence; that the value of the teinds ought to be deducted from
each of their valuations; and this being done, that the remaining valuation
would not be sufficient to entitle them to vote. -- *
The parties were heard at large, and the complainers rested their complaint
upon the following point, That their infeftments contained the teinds as well as
the lands, and that whatever objection may lie against the infeftments as to the
teinds, such objection could not be tried by the freeholders, but must be reser-
ved to be tried in a reduction before the Court of Session. It was anſwered,
That the teinds ex concerrir belonged to the Bishop of Caithness, and now to
the Crown, in place of the Bishop ; that the Barons of Exchequer, supposing
they had intended the thing, and had not been misled, could not grant these
teinds to the complainers ; and therefore the objection resolving into want of .
power in the granter, that the charter is void. quoad the teinds, which may be
objected a quocumque having interest without necessity of reduction.
At advising the cause, the LORDS. were generally of opinion, that the charters
were null as to the teinds, and that the Court of Freeholders had access to make
the objection, and to sustain it, in order to judge whether the complainers were
entitled to be upon the roll. But ELCHIEs took the thing upon the following
footing: He admitted, that in the valuations in order to proportion the cess,
every real right was valued, not only lands and teinds, but also liferents, annui-
ties, ſeu-duties, teind, tack-duties, salmon-fishings, &c. &c. when these were
in the possession of different persons, that a separate value was put upon each,
even though they all related to the same lands. But then he observed, that
when different reak rights arising out of the same lands belonged to the same
proprietor, there is no instance, as there was no necessity to put separate values
upon each. The lands only were valued, and the burdens to which the lands
were subjected were not valued, because they belonged also to the proprietor
of the lands. Thus when an heritor was in possession of his own teinds, whether
by a perpetual or temporary right, the lands alone were valued in proportion to
the rent they paid, which was both for stock and teind; and, from this valua-
tion, there was no occasion to deduct the value of the teinds, which belonged.
also to the proprietor. Thus undoubtedly was the estate of Hempriggs valued.
The valuation of L. 3600 yearly, must be understood to be the yearly value of
the whole lands, without deduction of any sum in name of teinds, because the
proprietor of Hempriggs was in possession of the same by a tack of long en-
durance. .* o
Having premised these facts, he observed, that the dispute was to be deter-
mined by the act 1681. The words are, That such freeholders are entitled to
a vote, ‘Who are infeft in lands liable in public burdens for his Majesty's sup-
“ plies, for L.400 of valued rent.” What is the meaning of this clause 2 Does
it point out the stock abstracting from the teinds, or is it sufficient that the lands
be de facto rated in the cess books at L. 4oo? The last is plainly the meaning,
expressed in words not ambiguous. This meaning corresponds to the method
SECT. I. MEMBER or PARLIAMENT. 73
--~~ *-
of valuation then subsisting, which, as aforesaid, was not to put a separate value
upon the teinds, unless possessed by another than the heritor of the lands. He
added; that this hitherto has universally been understood the meaning of the
act 1681; that instances are without number, where the present objection might
have been made, and which was yet never hitherto dreamed of, even in those
Keen disputes betwixt opposite parties in shires, where every objection is greedily
laid hold of. a * -- * * * . . . - - e.
I observed further, That the statute 1681, in ascertaining the qualification
of those who are entitled to elect and be elected members of Parliament, cer-
tainly intended a permanent qualification, not to be varied every minute upon
Ghange of circumstances. If lands are once valued at L. 4oo, however the valua-
tion be made up, perhaps by adding the value of teinds, coal, mines, or fishings,
yet if these are valued in cumulo, and the valuation be entered in the books for
the lands only, the proprietor is entitled to vote, by the above clause, even af.
ter his right to the teind expires, or his fishing fail, or his mine be wrought out.
Upon the same medium, a proprietor of land continues to have a vote after he
has given real securities to the value, or above. In judging of this question,
therefore, the teinds are not to be regarded. It is true, that making up the to-
tal valuation of the estate of Hempriggs, the teinds were brought into the cal-
cul; but then Hempriggs losing the teinds, would not lose his vote, supposing
his estate to be valued but at L. 4oo ; and as the complainers have the superi-
ority of part of the estate, which, in proportion to the whole, must be valued
above L. 1260, it makes no difference with regard to their qualification, whether
they have right to the teinds or not. Had they purchased a tack of the teinds
of their share, their votes would have been good after the tack was expired, and
they are in no worse case, though they never had a tack.
“THE LORDs ordained the complainers to be added to the roll.”
Sel. Dec. No 44. p. 48.
*...* Similar decisions were pronounced, 9th December 1790, in two cases, Ed-
monstone against Morehead, and these judgments were affirmed upon
appeal. See APPENDIx. gº *
No 4
º
J."
74
MEMBER or PARLIAMENT. Div. III.
No 44.
No 45.
A person
infeft in the
just and equal
half, pro indi-
viro, of lands
rated in cu-
mulo in the
cess-books at
L. Icco Scots
of valued
rent, is not
intitled to a
VOte,
S E. C. T. II.
What evidence must the Freeholders receive of the Valuation.
I76o. February 5. CAMPBELL and GRAHAM against MURE.
A CERTIFICATE by two commissioners of supply is sufficient evidence to a
meeting of freeholders, of the amount of a valuation regularly divided, without
producing the proceedings of the commissioners.
Fol. Dic. v. 3. p. 407. Fac. Col.
*mº ºm
1760. March 6.
SIR Michael STEwART of Blackhall, and WILLIAM CUNNINGHAM of Craigends,
againſt Captain John Pollock.
At the Michaelmas meeting of freeholders of the county of Renfrew, in Oc-
tober 1759, Captain John Pollock claimed to be enrolled upon the following
title, viz. a charter under the great seal in his favour, of the just and equal half,
pro indiviro, of all and hail the twenty pound land of Over Pollock, proceeding tº
on the procuratory of resignation contained in a disposition by his brother, Sir
Robert Pollock, to him, of the aforesaid just and equal half of the said lands,
upon the precept in which charter he was duly infeft.
And for instructing, that these lands were rated in the cess-books at Z.4oo.
Scots of valued rent, and upwards, reference was made to the valuation-book of
the county, then lying on the table; from which it appeared, that the whole
twenty pound land of Over Pollock, was valued, and paid cess at the rate of
L. looo Scots. i
This title was objected to by Sir Michael Stewart, one of the freeholders ; but
it was carried by a majority to enrol the claimant, upon which Sir Michael
Stewart, and Mr Cunningham of Craigends complained to the Court of S
Sion. * * #
Objected by the complainers, That the enrolment was improper and illegal in
a double respect ; Imo, The defender's title is founded upon an undivided Pro-
perty; 2do, The valuation is also undivided.
The right of freehold, and the privileges thereto annexed, Suppose a certain
estate, either of property or superiority, in which the claimant stands infeft,
&S-
***,
*
SECT. 2. MEMBER OF PARLIAMENT. 75
**
distinct from the estate of every other person, and of which he must also be in
possession. None of these requisites can apply to the case of an undivided pro-
perty, whether it be by inheritance or purchase. In such case, concurru fa-
ciunt partes, and neither of the joint proprietors can say that any particular
estate belongs to him either in property or superiority. For this reason it was,
that the statute 1681 enacted, that apprisers or adjudgers should have no vote
during the legal, and that after the legal expired, the appriser or adjudger first
infeft should only have, a vote, and no other appriser or adjudger, until their
shares were divided. If the half, pro indiviſo, of L. 8oo of valued rent could
entitle to a vote, by the same rule a vote might be created by disponing the one
half, pro indiviso, of a four pound land of old extent, retoured before the 1681;
but it is an established point that such retours cannot be divided, and that
though the retour contained a twenty pound land, it would entitle only to one
VOte.
In the contested election for the county of Dumbarton, between the Honour-
able John Campbell of Mamore, and Mr Haldane of Gleneagles, in 1724,
Mr Campbell having petitioned the House of Commons against the election of
Mr Haldane, and the affair being remitted to the Committee of Privileges and
Elections, that Committee came to the following resolutions, which were ap-
proved of by the House, nemine contradicente, “That it is the opinion of this
* Committee, that any conveyance of undivided shares of the superiority of any
lands in the shire of Dumbarton, in order to multiply votes, or split an inte-
• rest in such superiority amongst several persons, with a view to enable them
• to vote, is contrary to the act of Parliament made in Scotland in the 1681,
“rentitled, Act concerning the election of Commissionors for shires.—Resolved, That
‘ it is the opinion of this Committee, that no person claiming a right by a pur-
‘ chase to an undivided part of the superiority of any lands, where the extent
‘ of the lands of which he claims the superiority is not particularly specified,
and the lands distinguished by the charter by which he claims a vote, has
• any right to vote in the election of a Commissioner to serve in Parliament for
“ the shire of Dumbarton.’ *
This authority is in point. And, upon the same principle, the cumulo valua-
tion of the lands in question afford a separate objection to this claim. The re-
spondent's proper estate has no valuation; he has no estate that can be valued
while the property remains pro indiviso with him and his brother. It is the
estate itself, and not the person, that is to be rated, and pay cess according to
such valuation. . *s
Anſwered for Captain Pollock, The respondent is infeft and in possession.of a
certain estate, belonging to himself only, and to no other person whatever, viz.
the just and equal half of the twenty pound land of Over Pollock ; and although
that half remains undivided from the other half belonging to Sir Robert, yet, in
reason, and in the eye of law, it is an estate in him certain in itself, and distinct
from the estate of his brother. He is admitted vassal of the Prince in the jurt
- K 2 *
{
*
º f
§
*.
No 45.
* - . . * s...
No 45.
76 MEMBER OF PARLIAMENT. DIv. III
and equal half of the lands; he is liable, by the reddendo of his charter, in the
half of the duties payable to the Prince for the whole tenement, which half is
ascertained and specified in the clause of reddendo. In every respect he is vas-
sal to the Prince in one half of the lands, as much as Sir Robert is in the other.
The act of Parliament 1681 says, that he, who is infeft in property or superio-
rity, and in possession of lands paying cess at the rate of L. 4oo of valued rent,
shall have a vote, but makes no distinction whether the property is divided or
undivided. The respondent, therefore, subsumes, in the express terms of that
statute, that he is publicly infeft and in possession of lands liable in public bur-
dens to his Majesty for L. 5oo of valued rent, and consequently he is entitled to
vote as a freeholder.
Many freehold estates in Scotland, by old extent as well as by valuation, con-
sist in part of lands possessed in rundale, or in common property, pro indiviso.
Now, although these lands, possessed in rundale, and in common property, did
certainly enter into the computation both of the old extent and of the valued
rent, yet this was never considered as a good objection against the proprietor
claiming to be admitted to the privileges of a freeholder ; and if a part of the
estate may consist of common property, there occurs no good reason why the
whole may not be undivided, nam majus aut minuſ non variant ſpeciem. The
case of adjudgers make no way against the respondent’s argument; for, ante-
cedent to the act 1661, introducing the pari parru preference of apprisers, the
first apprising completed by charter and sasine, vested the sole right of the
Wands in that appriser, subject to redemption within the legal. The act 1661,
from equitable considerations, brought in all apprisings equally that were within
year and day of the first effectual one ; but notwithssanding this departure from
the common rules of law in favour of creditors, the first appriser or adjudger
who obtains himself infeft, does still, as to all other effects, divest the debtor,
and after the expiry of the legal, is held to be the proper vassal in the lands.
Neither does the argument which is used, with regard to dividing the old ex-
tent, apply ; for it is expressly declared by the statute 1681, ‘That no division.
‘ of the old extent made after that time by retour, or any manner of way, shall
‘ be sustained as sufficient cvidence of the old extent; but there is no such en-
actment with regard to the valued rent, *
The objection, That the valuation of this estate is undivided, is equally ill
founded ; for it is not disputed, that the valuation of the whole lands is L. Icoo
Scots, and therefore the valuation of the half must necessarily be L 5co. A de-
cree of the commissioners of supply could not make it more certain, that L. 5oo
is the half of L. Ioco, than it is by the nature of the thing.
Replied, The case of estates consisting partly of a common property in muirs
and mosses, is very different from the present. Such commonties are considered
as accessory to the property to which they belong, and are regulated thereby,
and the person claiming being in possession of a distinct and certain estate, is
SECT. 2. MEMBER OF PARLIAMENT. - 77
entitled to vote upon that estate, although perhaps a commonty, which, as be- No 45.
ing accessorium sequitur fuum principale, should be computed in the valuation.
“THE LORDs sustained the objections to Captain Pollock's vote, and granted
warrant for expunging him from the roll.”
A
Act. IWa. Steuart and Lockhart. Alt. Garden and Miller. Clerk, Tait.
I. C. Fol. Dic. v. 3. p. 407. Fac. Col. No 218. p. 396.
* nº lººm *T*
*
1795. February 25.
The Honourable HENRY ERSKINE againſt The Honourable JoHN HOPE.
No 46.
Is the original valuation of the county of Linlithgow in the year 1667, as Proof of the
well as in the subsequent one in 1687, the whole lands of Little Blackburn ...:
were rated at L. 366:13. But after this, for much more than forty years, i. the
that parcel of those lands, called “Napier's part of Little Blackburn,” was se- where nº de-
parately entered in the books kept by the Collector of the Land-Tax, being . :
rated at L. 2 Io: 11 : 4; and the tenants of the lands paid a corresponding share sustained.
of the public burdens.
It also appeared, that, in the county of Linlithgow, till a very late period,
the more formal method of dividing a cumulo valuation by a decree of the
Commissioners of Supply, proceeding on a proof of the real rent, and engress-
ed in their minutes, had scláom or never been thought of. The whole mi-
nutes of the Commissioners, from the year 1687, were extant; but no traces
could be found of a regular division of the valued rent of the lºads of Little
Blackburn.
Mr Erskine having acquired the superiority of Napier’, part of Little Black-
burn, produced to the freeholders of the county, at the Michaelmas meeting
in 1789, a certificate from two Commissioners and the Clerk of Supply, bear--
ing, that these lands were rated at L. 2 Io: 1 I :4: * ºn *..
Mr Hope, a freeholder in the county, objected to this evidence; and
Pleaded, Where a proprietor cannot shew that he is entitled to vote, in con-
sequence of the old extent of his lands, he must have recourse to the original
valuations, made up in every county by the Commissioners of Supply; or
where the lands belonging to him have at first been valued in cumulo along
with others, he must ascertain the separate valuation of his property by a re- *
gular decreet of division, pronounced by a quorum of the Commissioners, in-
whom alone is vested the power of proportioning the land-tax among the dif-
ferent Crown-vassals; Bankton, b. 4. tit. 9. § 3 ; Wight on Elections, p.
183. 184 197. 202. tº gº ºr
In the proceedings, too, before the Commissioners of Supply, the payment
of the land-tax, however uniform, cannot be considered as an unerring rule.
This may have arisen from some erroneous calculation, from the wish of a par-
78 MEMBER OF PARLIAMENT. IXIv. III.
No 46.
ticular proprietor to magnify the valued rent of his lands, for political pur-
poses, or from other causes. And although, where the records of the Com-
missioners of Supply cannot be found, it may have been thought just, to hold
the payment of the land-tax as sufficient evidence of the valued rent; because
it may, in such a case, be presumed that it was authorised by a decree of di-
vision ; the same determination here would be quite unjustifiable; 1768, Hogg
of Newliston against The Freeholders of Linlithgowshire, infra, h. t. ; Ioth
March 1774, Ross against Sir Roderick M'Kenzie, infra, h. 3.; 1775, Nisbet
of Dirleton against Lindsay, See APPENDIx,
Anſwered, Neither by the enactment of 1681, nor by any of those which
followed, respecting freehold claims, has any particular kind of evidence been
required for ascertaining the valued rent of lands giving a right to vote. It is
sufficient, that the claimant shall be publicly infeft “in lands liable in public
“ burdens, for his Majesty’s supplies, for L. 4oo of valued rent.”
While the practice of splitting estates, in order to create freehold qualifica-
tions, was unknown, very little attention was paid to this circumstance. Even
when the Commissioners of Supply proceeded in a formal manner, to distin-
guish the separate values of those lands which had been originally included in
one cumulo, this was rarely entered in the record. After the division was made,
it was thought sufficient, if the Collector of Supply inserted the separate values
of each parcel in the books kept by him. And hence, in the county of Lin-
lºgow, as well as in many others, it has often happened, that where there is
the slºongest reason fºr believing that a decree of division has been pronoun-
ced, no “aces of it are to be found in the books kept by the Commissioners of
Supply.
For these reasºns, a distinction has been justly made between those cases
where the land-tax has, till lately, been paid by the vassals of the Crown, un-
der a cumulo valuation, and those in which, from a very remote period, it has
been paid separately for a ſerent tenements, even although these may appear
under one general article in the original books of valuation. In the former, in
order to ascertain the valued rent of each tenement, a regular decree of divi-
sion by the Commissioners of Supply may, with propriety, be required; where-
as, in the latter, it being reasonable to wresume that a proper division has ta-
ken place, the term is of the decree may be ascertained by the uniform payment
of the land-tax, this being the standard which, if no objection is stated by
those more immediately interested, the Commissioners of Supply, in pronoun-
cing any new decree, would certainly adopt as the isle of their proceedings.
A contrary practice, in circumstances similar to the present, would be pro-
ductive of much unnecessary embarassment. Act 1681, Innes against Suther-
land, No 5c. infra ; Icth February 1781, Traill of Holland against Haldane,
infra, h. t. ; Wight on Elections, p. 183.
The fieeholders having refused to sustain the evidence here founded on by
SECT. 2. MEMBER OF PARLIAMENT. 79
Mr Erskine, he preferred a complaint to the Court of Session, which was fol-
lowed with answers, replies, and duplies.
“THE LoRDs found, that the freeholders had done wrong, and ordered Mr.
£rskine to be admitted to the roll.”
Act. Robertron, Cathcart, et alii. Alt. Lord Advocate, Williamson, et alii.
Clerk, Gordon.
C. Fac. Coll. No 122. p. 236.
—sºm- --
1790. December 9. DI. KSON againſt Doug LAs.
OBJECTED, That a decree of division had been produced, without any proof
of the real rents, except by parole testimony of one of twe witnesses; the o-
ther, who was the tenant of the lands, having neither sworn to the quantum of
the rents, nor signed the tacks, as relative to his deposition, though he swore
that the rents, specified in his tacks, were the real rents which he paid. But
the rents contained in his tacks agreed perfectly with those deponed to by the
other witnesses.—THE LORDs found, that the decree of division being formal,
must be held good till set aside by reduction.—See APPENDIX.
THE same found, though a process of reduction of the decree had been ac-
tually brought, and was depending at the time when the objection was made;
December 1790, Cheap against Morehead.—See APPENDIX.
Fol. Dic. v. 3. p. 407.
--nº Tºm-
1791. February 23. FREEHOLDERS of ORKNEY againſt JoHN TRAIL.
At a meeting, in July 1790, for electing a Member of Parliament for Orkney
and Zetland, Mr Trail was enrolled upon a qualification, which in part con-
sisted of the valuation of certain superior duties, payable to Sir Thomas Dun-
das, to whose predecessor, the Earl of Morton, the Crown had granted them.
In a complaint preferred against this enrolment, it was objected, That this part
of the valuation ought not to have been admitted by the freeholders; and, in
support of the objection, it was *.
Pleaded, Before the general valuation, the duties payable out of lands that
held feu of the Crown were not valued ; or, at least, no supplies corresponding
to them were paid to the Crown ; so that the rents of Crown-vassals lands were
valued minus the feu-duties. This appears from the act of Convention of 1643,
and the act of Parliament of 1649, cap. 21. 3. . . . . . . .
Of lands feued by subject-superiors, the valuation was laid partly on the feu-
<w
No 46.
No 47.
No 48.
A decree of
valuation, ex
facie regular,
though liable
to exceptions,
1s to be sus-
tained, until
set aside by
reduction.
*
85 MEMBER, OF PARLIAMENT. TXIV, III.
No 48.
©.
duties, and partly on, the rent paid by the subvassal; and when a forfeiture of
the subject-superior happened, or in the case of church superiorities assumed
by the Crown, by which means the subvassal came to hold immediately of the
Crown, he was not, beyond the extent of his own valuation, either liable to
public burdens, or entitled to any privilege.
With regard to Orkney, a considerable part of the lands had been feued out
by the Crown prior to the general valuation of that country in 1653; and, in
valuing these lands, the feu-duties were deducted, as mentioned above. When
these feu-duties, together with the property-lands, were conveyed to the Earl
of Morton, they received a separate valuation ; and he and his successors have
ever since paid cess for them, while the landholders pay only according to their
real rents. Those duties, therefore, ought not to have been included in the
valuation is question.
It has been found, that a grantee of feu-duties, formerly payable to an Ab-
bey, was not, by the valuation of them, entitled to vote. Nor was it contend-
ed, that the vassal by whom they were paid had any better title; Campbell
against Campbell, 17th January 1755, No. 52. p. 8647. Feu-duties, in that
situation, confer no right of voting. Had they been payable to the Crown at
the time of the valuation, as they would not have been valued at all, no person
would have voted upon them, and the accident of their being valued does not
make any material difference.
Anſwered, The rescinded statute of 1649, above quoted, directed the Com-
missioners to report the yearly value “ of all feu or tack-duties payable to any
“ person, his Majesty's duties excepted ” Thus it is evident, that of lands
held of the Crown, the full yearly value was to be reported ; and the same
thing may be said of those held of subject-superiors, the separate valuation of
the feu-duties serving probably as a rule for proportioning the public taxes
between the superior and the subvassal.
In the act of Parliament 1681, accordingly, nothing is said of any deduction
from the valued rent on account of feu-duties, though, with respect to the old
extent, these are cypressly distinguished. Nor could the circumstance of the
Crown-rents being conveyed to the family of Morton, influence the rights or
privileges of the Crown-vassals.
The notion of a subvassal's privileges being limited by his valuation minuſ
the feu-duties, seems to be groundless. But if, as is said, their situation, in
respect of burdens and privileges, continued the same, after their becoming
immediate vassals of the Crown, by parity of reason the landholders of Ork-
ney should be as little affected by that grant. t 5
The complainers plea, indeed, is inconsistent with the most indisputable
circumstances. The feus of the Crown's property-lands being granted without
diminution of the rental, the feu-duties must have been at least equal to the
rent. But if, immediately before the valuation in 1653, a feu had been grant-
ed, when the feu-duty, real rent, and valued rent, would naturally be all the
§ •º,'
rº.
> dºs
“SECT. MEMBER of PARLIAMENT. 3 I
same, the vassal of the Crown, according to that argument, however great his
valued rent might be, could not have voted; which seems equally contrary to
constitutional principles, and to the terms of the statute I681. In such a case
then, the vassal had a right to vote on the valuation of his lands ; and, in like
.nanner, if the rent had come to exceed the amount of the feu-duties, this
claim would have extended to the total valuation.
Nor does a superior's qualification depend on the mode of paying the cess.
This may be paid by a subvassal or by a tenant, as well as by the Crown's as-
signee. But it is the land that is ultimately liable for the public burdens:
and, indeed, by the strict letter of the statute 1681, the right of Voting is at-
tached to the Crown-vassal infeft in the lands so liable.
The case of Campbell that has been quoted may show, indeed, that a gran-
tee of feu-duties, not being himself the Crown-vassal, is not entitled to vote
on them ; but the present question respects the vassal who pays, and not the
grantee who receives, the feu-duties.
The Court repelled the objection.
IN the same complaint, the following objection was likewise stated. Certain
lands, that at the time of the general valuation had been valued in cumulo with
other lands not belonging to Mr Trail, also composed part of his qualification.
In a process of division of this cumulo valuation, the Commissioners of Supply
had pronounced a decree, ratifying the proportional valuation of these lands
at L. 6o. But it was
Objected, That the proceedings of the Commissioners, previous to their de-
cree, were so irregular and defective, that it ought to be considered as null
and void. *
Anſwered, The decree itself being, ex facie, formal and unexceptionable,
must be held to be good, until it be set aside by a process of reduction.
THE LORDs repelled the objection.
Act. Wight, et alii. Alt. Rolland, et alli. §
S. Fol. Dic. v. 3. p. 407. Fac. Col. No. 166. £º 336.
- —-mºm-
1796. March 2. OGILVY against CARNEGIE.
SIR John Ogilvy claimed to be enrolled on the lands of Baldovan, with the
Bank of Baldovan, which he stated as being valued at L. 386: 5: 8. In the
valuation-book 1683, there is this entry: “Baldovan L. 550.” After this pe.
riod, a part of the lands had been sold ; and, in subsequent cess-books, parti-
cularly from 1760 downwards, there is a separate entry: “For Baldovan
* L. 386: 5:8;” which, it was contended, could only apply to the original
L
NO 48.
No 49
.*
82 MEMBER of PARLIAMENT. Div. III.
No 49.
No 50.
Instance cf
splitting a
valuation of
lands valued
in cità, ºld,
article minus the part sold. No evidence of a regular division was produced;
but the entries in the cess-books, joined to the title-deeds, and a series of re-
ceipts, proving the cess to have been uniformly paid, corresponding to the
valuation of L. 386: 5:8, were urged as sufficient presumptive evidence that
there had been a division ; and the Court sustained the claim.—See APPENDIx.
Fol. Dic. v. 3. p. 407.
S E C T, III.
By what rule are cumulo Valuations to be divided.
1753. july 20. INNEs of Sandside againſt SurgeriaND of Swinzie.
IN the year 1701, by authority of Parliament, there was a valuation of the
shire of Caithness. The lands of Reisgill and Berrydale, both belonging to
Sutherland of Langwell, were valued in cumulo at L. 8oo Scots; and, by au-
thentic documents, preserved, it appears that, at this period, the lands of
Reisgill were of yearly rent L. 772 Scots, and of Berrydale, L. 704 Scots.
Recently after this period, the lands of Reisgill and Berrydale were separated,
and the disponees were entered into the cess books of the shire, by what au-
thority is not known, as liable for cess each of them, at the rate of L. 4oo va-
luation; and the use of payment, conformable to this valuation, was continued
for 40 years by the proprietor of Reisgill, as well as by the proprietor of Ber-
rydale. In the year 1751, Sutherland of Swinzie, proprietor of Reisgill, find-
ing no decree of the Commissioners of Supply, authorising a division of the
original valuation, was advised, in order to remove all objections, to apply to.
the Commissioners for a division. The Commissioners took under considera-
tion, not only the old rent, as vouched by rentals, but also the present rent
of both estates, and pronounced a decree agreeable to the division made in.
the cess books, and to the use of payment; and, upon the authority of this
decree, he was enrolled.
... Ianes of Sandside, one of the freeholders, complained to the Court of Session,
and Holding the present rent to be the rule of division, charged the Commis-
sioners with partiality and iniquity; condescending upon many particulars,
where the rent of Berrydale was kept down, and the rent of Reisgill raised.
SECT. 3. MEMBER of PARLIAMENT, 83
above the truth. Answered, Imo, Since the decreet was formal, which was
not refused, the freeholders had no power to review the same upon any ground;
nor even the Court of Session, otherwise than in a reduction; 2do, The pre-
sent rent is never the rule for splitting a valuation, unless by a presumption
that it is the same with the old rent; that, in this case, the old rent being le-
gally proved must be the rule; and, by this rule, the rent of Reisgill being
higher than that of Berrydale, L. 4oo Scots was less than the proportion of the
valuation that ought to be laid upon Reisgill; and, therefore, no cause of
complaint ; 3tio, Laying aside the decreet, the division made in the cess-
books, submitted to for 42 years, is legal evidence of a division by consent of
parties, which is equal to a division made by the Commissioners; for here, as
in all other cases, there is no occasion for the sentence of a Judge, where par-
ties differ not. Nor does it avail, that a purchaser, in order to be entitled to
a vote, may take upon him more cess than the land ought to be burdened
with ; for a decree may be collusive as well as a private agreement, and, in
neither case, is collusion to be presumed; the objection is nothing, unless it
be verified.
Replied to the first, A decreet, dividing a valuation, serves two purposes;
one direct, and one indirect. The direct effect is to ascertain the cess with
which the land is to be burdened ; and, with regard to this effect, the decreet
cannot be challenged but by reduction. It has an indirect effect to serve as
evidence of a qualification; as to which, the barons or freeholders are judges
of the evidence; and, therefore, they are not bound to admit, as good evi-
dence, a decree, which, to them, appears partial or iniquitous. To the ſecond,
no other reply was made, but to carp at the authority of the old rentals, que-
stioning them as not legal evidence. To the third it was answered, That pri-
vate consent can have no operation against third parties; and, therefore, can-
not have the effect to split a cumulo valuation; because, the public has an in-
terest as well as the private proprietors: This, therefore, must be done by a
decree which binds all parties; and without a decree, there is nothing to bar the
Collector of the Land-Tax from quartering upon any part for payment of the
cess of the whole lands contained in the cumulo valuation. ge
THE LORDs were first of opinion, that the old rentals were sufficient evidence
of the old rent, and a good foundation for the decreet of division; consequently,
that the Commissioners had committed no iniquity in laying half of the original
valuation upon Reisgill. But, upon a reclaiming petition and answers, it was
carried by a majority to alter; and Swinzie was ordained to be expunged from
the roll.
I can have little doubt that the use of payment of the cess for 40 years, ac-
cording to the cess-roll, binds all parties, the King not excepted ; and, there-
fore, is in all views equivalent to a formal decreet of division. The greatest
confusion must follow were the law otherwise ; for how can it be expected, that
decreets of division are to be preserved for ever? Why not provide a remedy a-
L 2
84 MEMBER of PARLIAMENT. Div. III.
No 5o.
No 51.
Though, the
real rent be
the proper
standard of
division, yet
a division of,
valued rent
sustained,
though pro-
ceeding on a
proof of the
use of pay-
ment of cess
by the vassals
of the lards.
The regnlar
method of di-
viding carnulo
valuations, is
by propor-
tioning thern
according to
the real rents
at the time of
the division ;
but, when
}and. tax has
been paid for
a considerabfe
time, in Cer-
tain p: onor-
tions, the va.
luation may
be divided
according to
such pay-
Thent.
$º
gainst the injuries of time, in this particular, as well as in all others? The Jud-
ges, indeed, seemed to be all of this opinion. The plurality who were for the
complaint, put their opinion upon this narrow footing, that Swinzie’s act of ap-
plying to the Commissioners was evidence against him, that there never had been
a decreet of division. This evidence is extremely slender. But, admitting it to
be good, For what good reason ought not an acquiescenee of the Commissioners,
for 40 years, to be held equivalent to their decree ? For, as it is their business.
to see the land-tax effectually secured, their acquiescence in a private division
presumes that the division is justly made, without collusion.
Sel. Dec. No. 49, p. 56.
--sºº. ººm--—-
I 755. january 17.
John, GALBRAITH of Balgair againſt WiLLIAM CUNNINGHAM of Ballindalloch,
At the meeting of the freeholders of Stirlingshire, held 17th May 1754,
John Galbraith of Balgair claimed to be enrolled amongst them, upon the
following titles, viz. partly as heir to his brother in the lands of Balgair; for
instructing of which, he produced his service, dated 2d March 1753, a precept
from the Chancery, dated 17th April, and his sasine thereon, dated 3d May,
and registered 6th June said year; and partly as proprietor of the lands of Sta-
neith and Rollis ; for evidence of which, he produced his charter of these lands,
under the Great Seal, dated 23d February 1743, and Sasine thereon, dated 4th,
and registered 7th April of that year; and he produced a certificate of the lands
being valued in the cess-books at L. 4 Io . Io :8. 3
William Cunningham, one of the freeholders, objected, Imo, That he could
not be enrolled in virtue of the lands to which he had succeeded as heir to his
brother, because his right of apparency was at an end by his having made up
titles; and he could not be enrolled in virtue of these titles, because his sasine
had not been registered one year before the meeting for election ; 2do, That.
he could not be enrolled in virtue of the lands to which he produced a charter
and sasine, dated and registered in 1743; because his title to these lar:ds was a
redeemable right, but not a proper wadset ; for the contract contained no clause
empowering Mr Galbralth to call for his money; 3tio, That the valuation of
the last mentioned lands, which had been purchased from Mr Stifling of Her-
bertshire, was not properly divided from the valuation of Herbertshire's other
lands. The majority of the freeholders sustained the objections; and John
Galbraith, complained to the Court of Session for redress. *
It was pleaded, in support of the objections; That, by the act 12mo Annae,
and 16to George II. none, except appārent heirs, can be enrolled, urless their
sasines be recorded one year before the test of the writs for calling the Parlia-
ment, or at least one year before the enrolment be demanded. Now, the
SEcT. 3. MEMBER OF PARLIAMENT. 85
complainer ceased to be an apparent heir, so soon as he completed his titles to
the lands ; and he could not be enrolled on his titles, because his sasine was not
registered one year before the diet for election at which he claimed to be enrol-
led.
2do, The complainer's right to the other lands is not a wadset of any kind,
but an actual sale, under a power of redemption in favour of the seller; for
the contract grants no power to the complainer to call for his money, which is
essential to the nature of a proper wadset; for a jus crediti, without a power of
requiring payment, is incongruous and absurd ; and therefore his title to the
lands, being a redeemable right, but not a proper wadset, cannot entitle to a
Vote.
3dly, The division of the valuation of the lands is erroneous in two respects;
Imo, The lands, belonging in property to Mr Stirling of Herbertshire, stand
separately valued from the lands belonging to his vassals, in the cess-book 169E
(which is the most ancient and authentic valuation-book of the shire now ex-
tant;) and yet the Commissioners of Supply, in dividing the valuations of
the lands, whereof the superiority had been disponed or wadset to the
complainer, from the valuation of the other lands, blended the valua-
tion of Herbertshire's property-lands with the valuation of his vassal's lands, as:
if they had been valued in cumulo ; 2do, The Commissioners divided the valu-
ation, not upon a proof of the real rent of the lauds, but upon a proof of the
use of payment of the cess to a private collector, who paid in the whole to the
Collector for the shire; but the use of payment of the cess could be no rule
for dividing the valuation ; because the use of payment was without any legal,
authority, by consent of parties alone, and could have been departed from by
any of the parties when they pleased, and often bears no proportion to the real
rent of the lands; and a proof of the real rent of the lands is the only legal
rule for dividing the valued rent ; for, were there no valuation of the lands, the
cess behoved to be paid according to the real rents'; and when the valued rent
of the lands, formerly valued in cumulo, is divided, it ought to be in an exact
proportion to the real rents of the lands, whereof the valuation is divided.
It was answered for the complainer to the firſt objection ; That the right
which the law gives to one as apparent heir to his predecessor, cannot be lost.
through his completing his titles by service and infeftment. The law gives the
privilege of being enrolled and voting to apparent heirs ; not because they are
in a state of apparency, but because it appeared reasonable that they, upon.
their predecessor's death, should have the same right to choose representatives.
to Parliament, which their predecessors had, although, these heirs had not com-
pleted feudal titles to the lands. The act 1681, when giving this privilege,
had only occasion to mention apparent heirs ; because, as the law then stood,
so soon as one was infeft, even on singular titles, he was entitled to vote. And
the act 12mo Anne does not take away this privilege, either from apparent heirs,
properly so called, or from heirs entered ; it enacts, ‘That no conveyance or
No 51.
86 MEMBER of PARLIAMENT. Drv. III.
No 51.
vassal's lands had been feued out before, and what after, the s
‘ right whatsoever, whereupon infeftment is not taken, and sasine registrated
“one year before the test of the writs, shall entitle to vote.' But the com-
plainer was not demanded to be enrolled and to vote in virtue of the right on
which infeftment had been taken, but in virtue of the right which had been
in his predecessor, and was now transmitted to him by his predecessor's death.
To the ſecond objection, it was answered; That a clause, empowering the
wadsetter to call for his money from the reverser, was no way necessary to the
constitution of a proper wadset, as appears from Sir George Mackenzie's defini-
tion of a wadset, tit. Redeemable Rights, § 3, and § 12. ; and that clause
seems only to be a modern invention ; for anciently wadsetters commonly got
such beneficial bargains, that they never called for, and seldom chose to have,
their money offered to them ; and although Craig has a whole title, in his 2d
book Defeudir, upon wadsets, yet he makes no mention of any power in the
wadsetter to call for his money; which, had it been necessary to the constitut-
ing of a wadset, he certainly would have done. It is a mistake to Say, that a
wadset is a fur crediti; for it is a jus dominii, Stair, tit. Wadset, § 2. ; and it is
on that account that it gives right to vote. -- -
To the third objection, it was answered in the general;
of the valuation was made by a general meeting of the Commissioners of Sup-
ply, who are a Commission of Parliament, the freeholders are not entitled to
set aside their decrees by exception, but their decrees must stand good until re-
duced by a proper process. * -
And, more particularly, to the firſt part of the objection, answered, That
although the lands, which were Herbertshire's property-lands, at the time when
the shire was originally valued, had been separately valued from the lands then
belonging to his vassals; yet the heritors of Herbertshire have since that time
feued out part of these property-lands; and it is not now certain what of the
said valuation;
and therefore the Commissioners of Supply behoved to add the two original va.
luations together, and then to divide the whole. -
To the ſecond part of the third objection, answered ; That the Commission-
ers of Supply are not confined to any particular mean of Proof, but may use
any proof that appears to them proper for the end in view ; and the use of pay-
ment of the cess seems to be as Proper a rule for dividing the valuation of the
lands as any whatever; especially when, as in the pres
* 8tnt Case, that use has
been for any considerable time, and is among feuars; for it is not to be pre-
sumed, that any of the feuars would agree to pay a larger proportion of the cess
than what effeired to the ent of the lands; as they could not thereby acquire
a right to vote, because not the Crown's vassals. And as this use of payment
was begun long ago, and when Herbertshire was superior of the whole lands, it
could not be with a view to serve a turn, but in order that each vassal should
pay such proportion of the cess as corresponded to the value of his lands.
That, as the division
SECT. 3. MEMBER of PARLIAMENT. - 87.
. THE LoRDs repelled the objections to the qualifications of the complainer, No 51.
and ordained his name to be added to the roll of freeholders of the county of
Stirling.” See Div. 4. Sect. 1. h. t. -
Act. And, Macdowal at R. Bruce. Alt. Lockhart et And. Pringle. Clerk, Forber.
15. - Fol. Dic. v. 3. p. 497. & 405. Fac. Col. No 127. P. 188.
- \
A isºmº
1755. january 17. -
PATRICK CAMPBELL of Monzie against JAMES CAMPBELL of Ardkinglas. No 52
‘A - º º tº ſº b Found in &n.
At the meeting for electing a Commissioner to Parliament from the county formity with
of Stirling, mentioned in the preceding case, Patrick Campbell of Monzie “*
claimed to be enrolled in the roll of the freeholders entitled to vote. His claim
was founded, partly upon his right to the superiority of certain lands, which had
been disponed to him by Sir James Stirling, and partly upon his right to certain
feu-duties, payable out of the lands of Bothkennar, which had originally be-
longed to the abbacy of Cambuskenneth, and after the Reformation had been
erected into a temporal Lordship; to which feu-duties Mr Campbell of Monzie
had acquired right. s - -
It was objected by James Campbell of Ardkinglas, one of the freeholders,
That Mr Campbell of Monzie was not entitled to be enrolled; Ist, Because he
was not infeft in either the property or superiority of the lands, out of which the
feu-duties were payable ; for the vassals in these lands had taken the benefit of
the acts of annexation, and held their lands immediately of the Crown ; so that
they were not vassals to the claimant, who, by his charter, had no other right
than that of uplifting the feu duties ; which could no more entitle to a vote,
than a perpetual annuity uplifiable furth of lands; 2dly, That the valuation of
those lands purchased from Sir James Stirling had not been properly divided
from the original valuation in cumulo of the lands of Glorat, whereof they were
a part ; as the Commissioners of Supply had not taken a proof of the real rent.
of the lands, but only of the use of payment of the cess.
The majority of the freeholders sustained the objections ; and Mr Campbelli
of Monzie complained to the Court of Session, and pleaded, for obviating the
first objection, Imo, That he was the Crown's vassal in these feu-duties, and
that ‘ they were liable in public burdens for his Majesty's supply;' and as their
valuation, joined to the valuation of the complainer’s other lands, is above
L. 700 Scots, he was, in terms of the act 1681, entitled to a vote. These feu-
duties were the rents of the lands at the time when the lands were feued out ;-
the complainer is entitled to use a poinding of the ground for payment of them,
and has a preferable right in the lands to the vassals, who have only right to the
new or improved rent, after the feu duties or old retit is paid.
88. - MEMBER of PARLIAMENT. Div. III
No 52.
2do, That the act 1681 ought to beneficially interpreted, so as to comprehend
every heritable subject holding of the Crown, and liable in the payment of pu-
blic burdens, though these subjects should not be lands in the strict sense of the
word, as it is for the advantage of the constitution that all the property in the
kingdom be represented in Parliament, and that those who bear the burden of
the taxes should have a share in laying them on ; and as these feu-duties in .
Scotland, which formerly belonged to churchmen, amount to about L. 60,000
Sterling yearly, it would be very improper to exclude the proprietors of them
from a representation in Parliament.
3tio, The Court of Session has in many instances interpreted the words of the
act 1681 more extensively than is now contended for. Thus, 29th January
1745, Sir Patrick Dunbar contra Sinclair of Bremster, No 42. supra. it was
found, That one infeft in teinds holding of the Crown, was entitled to vote
upon their valuation, although teinds fall but very improperly under the de-
nomination of lands, and are rather a servitude on the lands ; and are not debi-
tum fundi, as these feu-duties are, but only debitum fructuum. And, Free-
holders of Aberdeenshire contra Fordyce of Monkshill, infra b, t. and Free-
holders of Dumbartonshire contra Campbell of Succoth, infra b. t. a right
of salmon fishing was found to entitle to a vote; in the former of which cases
the claimer had no right to the adjacent lands; and as the extension in the a-
bove cases was most just, because the teinds and fishings were rights holden of
the Crown, and liable in public burdens for his Majesty's supplies, so the act
ought also to be extended so as to comprehend the said feu-duties; for, as Cicero
observes, valeat acquitar qual paribus in causis paria jura desiderat,
It was answered for James Campbell of Ardkinglas, That it appears from our
ancient acts of Parliament, that none but proprietors of lands were obliged to
give attendance in Parliament; and from our later ones, that none but such
proprietors were entitled to elect representatives to Parliament; particularly
the act 1681, and 16to Geo. II. (which are now the rule) expressly mention
* lands holden of King or Prince.’ The complainer's right to the feu-duties, is
undoubtedly no right to lands either in property or superiority. The right in
his charter is thus described. ‘ Et similiter omnes et singulas feudifirmat divo-
‘ rias subtus specificat. Solubiles ex terris postea mentionat. pertinen, ad personas
* postea mentionat. feudifirmarios et portionarios de Bothkennar respective,’ &c.
and the vassais who were the proprietors of the lands hold them immediately
cf the Crown, and not of the complainer; and therefore this right to the feu-
duties can no more entitle to vote, than a perpetual annuity or annuarrent
could ; for it is not the paying of cess, but the holding lands of the Crown,
that entitles to vote. And however proper the complainer's arguments for ex-
tending the act 168 I, so as to comprehend his case, might be before the Le-
gislature ; yet they can have no place in a court of law, which must decide ac-
cording to the words of the law, without regard to considerations of expediency.
if the Court has already extended the law, so as to comprehend subjects not di-
*
Secr. 3. MEMBER or PARLIAMENT. 89
rectly falling under it, that is no reason for extending it further to other sub- No 52.
jects. But the cases mentioned by the complainer were no undue extension ; -
for, in the case of Sir Patrick Dunbar contra Sinclair, it was only found, that
the valued rent of the teinds to which the proprietor of the lands had acquired
right, might come in computo with the valuation of the lands: And justly ; for
when the proprietor of the lands had acquired right to the teinds, they ceased
to be a servitude or burden on the lands, and the lands became liable for the
whole valuation of both stock and teind. But it never was found, that a titu-
lar of the teinds of other mens lands was entitled to vote, where the valuation
of the teinds exceeded L. 4oo Scots. And a right of salmon fishing falls pro-
perly under the description of lands, because, by the common principles of law,
the channel of a navigable river, as well as all the emoluments and advantages
arising from the river, are considered as part and pertinent of the adjacent
grounds. *s - -
The arguments with respect to the manner of dividing the valued rent, were
the same with those used in the case immediately preceding.
THE LORD's repelled the objections to the complainer's qualification, so far as
concerned the division of the valuation of the lands derived from Sir James
Stirling; but sustained the objection made to that part of the qualification
founded upon the title to the feu-duties payable out of th: lands of Bothkennar;
and therefore dismissed the complaint. See Div. 4, § 1. h. t.
Act. Añd. Macdowal', Ro. Dundai s - Bruce. Alt. Lockhart & Aud. Pringle. Clerk, Forbes.
B. - Fol. Dic. v. 3. p. 407. & 408. Fac. Col. No 128. f. 192.
tº * ... * a - --- ſº - * Art C :- ** L-
*...* This case is reported by Lord Kames, No 9. p. 2443. voce CoMMISüos ERs
- of SUPPLY.
1768. March Io. - * -
William Douglas of Bridgetoun, and WILLIAM MILN of Bonnitouri, against
*&s=- ALEXANDER ELPHINSTON, Advocate. *
- - - - - . No 53-
s : . - i - - Objected to a
MR ELPHINston was enrolled in the roll of freeholders for the county of For- ºr, ſha.
- C - . . . . . - - - - - • Miln rom n!...ine • {\r i- the division
far at Michaelmas 1767. Mr Douglas and Mr Miln complé ned to the Court of ...".
-Session, of the judgment of the freeholders, enrolling Mr Elphinston, and stat- erroreous,
- . . . º Lº - ºr s . • as . . • ..." - as ~ Fi - , in respect
ed sundry objections to his qualification, and, among others, an objection to the jº.u.
division of the valued rent of the lands upon which he claimed. - ; ...
The Cour T, upon advising the petition and complaint, answers, &c. 22d Jan. es, had been
. . . . . . . . . . . . . . . & sº - the voivor: 1 adº wº 4-? conjoined,
1768, Sustained the objection with respect to the valuation of the respondent's . ought
lands, and find, that the freeholders did wrong in admitting the respondent, Mr º: º:
Alexander Elphinston, to the roll of freeholders for the county of Forfar, at & -
*- M
go MEMBER of PARLIAMENT.
HDIv. III,
T
No 53.
Answered,
This division
was made
without any
political view,
and was ho-
mologoted by
payment of
Cess for 12
years. The
objection was
Sustained in
this Court ;
but that judg-
} m ell t was re-
versed upon .
appeal.
Michaelmas last; and therefore grant warrant to, and ordain the sheriff clerk of
the said county to expunge his name from the said roll, and decern; and find it
unnecessary to determine the other objections with respect to the validity of the
respondent's rights.” - w
Against this judgment Mr Elphinston took an appeal, and the cause com-
ing to be heard in the House of Peers, the above recited interlocutor was re-
versed. . . t i
How soon the judgment of the House of Peers was known in Scotland, Mr
Douglas and Mr Miln gave in a petition to the Court of Session, praying the
Court to resume the consideration of the other objections they had stated to
Mr Elphinston’s qualification, which had not received the judgment of the
Court.' -
Answers were put in for Mr Elphinston, in which it was contended, That as a
judgment which exhausted the whole cause had been pronounced by the Court,
when the question was formerly under consideration, and decreet had thereupon
been extracted, the cause was out of Court; so that there was now no depend-
ing process; and therefore it was incompetent to resume the consideration of
any of the other objections.
THE Court, Ioth March 1768, pronounced this interlocutor: “ THE LoRDs
having heard this petition, with the answers thereto, and judgment of the House
of Peers, they refuse the desire of this petition.” *
Pleaded in a reclaiming bill for Messrs Douglas and Miln, There may be
many cases where Sundry points occur, each of which is decisive of the cause.
A defender may have various defences, each of which are relevant to procure
3.21 absolvitor, and it would be extremely hard, in cases where the Court give
judgment upon one point only, and superseded determining the others as unne-
cessary, if such judgment should be reversed on appeal, that it should not be
in the power of the Court to resume the consideration of the other points of the
cause, and to determine the same in favours of the person with whom the merits
did truly lie, merely because the decreet had been extracted, which was abso-
lutely necessary for the purpose of discussing the appeal. The House of Peers
have no radical jurisdiction in questions such as the present, but is only a court
of review ; and of consequence cannot take cognizance of points which were
not under the consideration of the Court of Session. The extracting of the de-
creet was not the voluntary act of the complainers; it became necessary in or-
der to discuss the appeal which was taken by the respondent before the reclaim-
ing days were run, and when it was competent for the complainers to have re-
claimed against that part of the interlocutor of this Court, finding it unneces-
sary to determine the other objections; and therefore the cause ought to pro-
ceed in this Court, in order to have the other points determined, which had not
yet received the judgment of the Court. . . . .
Answered for Mr Elphinston, There is no more solid or better founded de-
fence in the law of this country, than that of a res judicata. When judgment
SECT. 3. MEMBER or PARLIAMENT. 91
is given in any cause, either condemning in, or absolving from the conclusions of
the libel, and decreet thereupon regularly extracted, that cause is thereby out
of Court, and can never afterwards be renewed upon the same grounds; such
after litigation being most justly and effectually barred by the objection of a
ref judicata. -
In the present case, the single purpose of the petitioners action was, to have
the respondent expunged from the roll of freeholders ; the Court pronounced
judgment exactly conform to the libel brought ; that judgment was extracted
by both parties, and thereby the cause and parties were entirely out of Court 3
so that the question comes to be, what is the effect of the judgment of the
House of Peers? That judgment is no more than a simple reversal of the decree
of this Court, and can never bring back into Court a cause, which, by the esta-
blished law of the country, and forms of Court, was entirely at an end. Had
the judgment of this Court been affirmed upon the appeal, it could not have re-
turned here, and so must have been an effectual judgment in favours of the pe-
titioners; and the House of Peers reversing that judgment, ought to be as ef-
fectual to the respondent, as the affirming of it would have been to the peti-
tioners. This Court did not supersede, but found it unnecessary to determine
the other points; the judgment given exhausted the cause ; the petitioners did
not demand the judgment of the Court upon the other objections, but rested
their plea solely upon the point determined. Had no appeal been taken, nei-
ther party could have applied to the Court after extracting decreet; and the
judgment upon that appeal, being a simple reversal, cannot alter the case. Had
the House of Peers intended that any further procedure should be had in this
Court, they would have remitted the cause back, in order that the other points
might be considered; but no such remit being expressed in the judgment of
the House of Peers, the cause must, in every view, be considered as at an
end. - * - -
“THE LORDs refused the desire of the petition, and adhered.’ See RES INTER
Alios.-See SUPPLEMENT to Wight, page 50.—See APPENDIx. +
For the Complainers, Ro. M*Queen, And. Crosbie, &c.
For the Respondent, Rae, Wight, and P. Chalmerſ. -
Fol. Dic. v. 3. p. 408. Fac. Col. No 76, p. 132.
1773. . February. . . . Grant against DUFr.
‘. -
THE Court of Session reduced a decree of division of the valuation of the
estate of Innes, on this ground, That with regard to a part of that estate, no
- proper evidence of the real rent had been brought.
! * . - -
l
The House of Lords reversed the judgment, considering it as immaterial,
though one parcel should have got a greater, and another parcel a smaller pro-
No 53.
No 54-
92 MEMBER OF PARLIAMENT. Div. III.
No 54.
No 55.
No 56.
Objection,
that two
parcels of
lands, se-
parately va-
lued, had
been thrown
together by
the Cornmis-
sioners, re-
pelled, there
having been
acquiescence
for many
years.
1787. February 16.
portion than it was actually entitled to ; seeing at any rate the estate could af.
ford no more qualifications than accords to the extent of its gross valued rent.
See APPENDIx.
& Fol. Dic. v. 3. p. 408.
N.
Boy Es againſt FREEHOLDERs of RENFREwsAIRE.
THE Marquis of Clydesdale's lands of Corseflat and Corseford in Kilbarchan
parish, stood in a valuation roll at L. 4oo, and his lands of Corseflat and Corse-
ford in Lochwinnoch parish stood valued at L. 352 : 3: 4, in all L. 752 : 3: 4.
In a division of this valuation, the Commissioners, instead of dividing each se-
parate article into its component parts, threw both together, and divided the
whole according to the real rents at the time, by which means the valuation of
the lands in Kilbrachan parish was reduced from L. 4oo to L. Ic8 : Ios, and
the valuation of those in Lochwinnoch parish was increased from L. 352 : 3:4,
to L. 566:13: 4. Boyes claimed to be enrolled inter alia on the lands of
Corseford in Lochwinnoch, which, on the authority of this decree of division,
stood valued at L. 9o, The freeholders, in respect of the improper junction of
the two separate cumuloſ, refused to admit him to the roll, and the Court af.
firmed their judgment. See APPENDIX.
Fol. Dic. v. 3, p. 408.
December 14.
SIR ALExANDER CAMPBELL, Baronet, againſt PETER SPIERs.
I790.
In the original books of valuation in the county of Stirling, the lands of Gar-
gunnock were rated, in cumulo, at L. 863 : I 8: 8. *
In 1740, the Commissioners of Supply disjoined the valuation of the lands of
Fleuchames and Redmains, parts of the estate of Gargunnock, from that of the
remainder, declaring it to be L. Io9. :
In 1753, the proprietor of this estate again applied to the Commissioners of
Supply, for a division of the valued rent of the whole lands of Gargunnock.
At this time, no notice being taken of the previous division made 13 years be-
fore, the lands were thrown together, and divided according to the real rents:
And in this division all palties acquiesced, Sir James Campbell the proprietor,
and several other persons, having been, in virtue of - it, admitted to the roll of
freeholders. . --
In 1787, Sir James Campbell executed a trust-settlement of his estates, the
purpose of which was, ‘to make provision for the payment of his debts, and
Sect. 3. MEMBER of PARLIAMENT. 93
‘ for laying down a proper plan for the management of his estates, in the event
‘ of his decease before the debts were cleared off." -
The trustees were authorised to enter into possession, to apply the produce of
the lands towards the payment of his debts, one half, however, being appropri-
ated to the maintainance of the heir, and to sell so much of the lands as was
necessary ; and after the purposes of the trust were accomplished, the trustees.
were to denude in favour of certain heirs of entail named by Sir James Camp-
bell. -
The trust-deed containing a procuratory of resignation and a precept of sasine,
the trustees, after the death of Sir James Campbell, in 1788, took a base in-
feſtment ; and they entered into possession, or levying the rents, &c.
But in April 1792 they executed a deed renouncing the procuratory of resig-
nation, and agreeing to hold the lands of Sir Alexander Campbell, the truster's
eldest son, and heir of entail.
At the meeting for electing a Member of Parliament for the county of Stir-
ling, on 6th July 1792, Sir Alexander Campbell claimed enrolment as apparent
heir of his father. Three objections were stated by Mr Spiers, a freeholder then:
present, 1st, That by the trust-deed the right of Sir James Campbell and his
heirs became defeasible at the will of other persons, and consequently ceased to
give a right to vote ; 2dly, That those apparent heirs only could be enrolled as
freeholders who were in poſſeſsion of the lands which had belonged to the an-
cestor; and, 3dly, That the decree of division in 1753, on which Sir James had
enrolled, was void and null, the Commissioners of Supply having blended two
estates which had formerly been separately valued.
These objections having been sustained by the freeholders, Sir Alexander
Campbell complained to the Court of Session ; when, in Support of the objec-
tions, Mr Spiers
Pleaded, Imo, It was in the power of the trustees appointed by Sir James
Campbell, by executing the procuratory of resignation, or by selling the lands,
to divest him entirely of his estates ; and therefore it would be equally contrary
to the purity and independence of our Parliamentary representation, if a per-
son so situated, or his heir, were to be admitted to vote. The deed executed:
by the trustees after the death of Sir James. Campbell, whereby they became
bound not to execute the procuratory of resignation, is of no importance, as if
could be no hindrance to a purchase from the trustees. And so the Côurt seems
to have decided, 7th March 1781, Muir and Dalrymple against M. Adam, Div. 4.
§ 1. h. t. ; 15th May 1789, Williamson contra Smith, see APPENDIx. . .
2do, Although the freehold qualification in the person of Sir James Campbell
had been liable to no objection, it would not follow, that the claim offered by
his son should be sustained. By act 1681, it is indeed declared, that apparent -
heirs may be admitted in virtue of their predecessors infeftment, if not indis-
criminately given to all apparent heirs, but is confined to those who are in por-.
No 56.
Q4 MEMBER OF PARLIAMENT. DIv. III.
No 56.
seſſion ; a requisite which does not here occur, the trustees named by Sir James
Campbell still continuing to levy the rents.
3tio, There is no evidence that the lands which belonged to Sir James Camp-
pell are of the valuation required by law. The decree of division in 1753 is,
ex facie, irregular. Instead of setting apart L. IcS as the valuation of the lands
of Fleuchames and Redmains, and then proceeding to a division of the remain-
ing valuation among the other lands contained in the original cumulo, amount-
ing to L. 755: 18; 8, the Commissioners took it upon them to blend two parcels
of lands which stood separately valued; a proceeding wholly unauthorised. As
this objection appears from the books of valuation, it might be stated, without
any action for setting aside the decree; 19th January 1781, Sir John Scott and
others contra Robert Trotter, see APPENDix; 16th February 1787, John
Boyes contra Freeholders of Renfrewshire, No 55, supra. -
It is of no consequence, that the decree of division has hitherto remained un_
challenged, the land-tax for the whole lands having been paid by Sir James
Campbell, or his trustees. If a contrary argument were to be listened to, a di-
vision at an unauthorised meeting of the Commissioners, or made by private a-'
greement, might be sustained in opposition to the established law. And it is of
as little importance, that, in making the division, no real injustice has been
done ; the law having required the valuation of lands in virtue of which an
enrolment is claimed, to be quite distinct and separate from that of an
person enrolled, as having right to be enrolled as a freeholder. -
Anſwered, Imo, A voluntary trust-conveyance, even for the benefit of credi-
tors, has been found no bar to an enrolment, the radical right of property still
remaining in the truster; a fºrtiori such a settlement as here occurs cannot be
thought to disqualify the person by whom, or for whose benefit it is executed.
So it was determined, 5th March 1755, Murray against Neilson, Div. 4. § 6.
b. t. ; and also IIth March 1786, Donaldson and others contra Sir Ludovick
Grant, Div. 4. § I. b. t. ; the intermediate decision in the case of Macadam
having been considered as founded on specialities.
2do, The objection drawn from the act of 1681 is equally groundless. The
statutes relating to elections do in general require, that the Party claiming en-
rolment, or exercising his right of voting after he is enrolled, shall be in posses-
sion. But it is not more necessary in the case of an apparent heir, than in that
of any other Person laying claim to enrolment, that he should be in the natural
possession of the lands. In this case, the claimant is virtually in possession,
that held by the trustees being in his possession.
3tio, Although the decree of division in 1742 had been given at a meeting
regularly called, and upon proper evidence, yet having been so long departed
from, and the subsequent decree in 1753 having been acquiesced in by all
parties, it could not be resorted to unless in a proper action for setting aside the
iāter decree ; 25th June 1780, Shaw Stewart contra the Freeholders of Ren-
frew, see APPENDIX. Nor would such an action be listened to in a question of
y other
SECT. 3, MEMBER OF PARLIAMENT. 95.
enrolment, unless it could be shown, that if the proceedings had been accu-
rately gone through, the freeholder would not have had the requisite valuation.
By one decision, it is true, in the case of Trotter, a different rule was followed;
but in many other an objection similar to the one here urged has been disre-
garded; Wight on Elections, Scot against Elliot, 17th January 1781, No 97.
infra ; Scot, &c. against Dalrymple, eodem die.—See APPENDIx.
THE Court considered the objection arising from the trust-settlement as with-
out any solid foundation. Even although the trustees had obtained a Crown-
charter, this, it was observed, would not have precluded the truster, or his heir,
from the privilege of voting as a freeholder, - - a
The objection relative to Sir Alexander Campbell's claiming as apparent heir,
was held to be equally groundless. , -
As to the decree 1753, the opinion of the Court seemed chiefly to rest on the
long silence of all the parties who were entitled to bring it under challenge, it
being understood, that as the prior decree was sufficiently regular, it was com-
petent, without any process of reduction, to challenge the subsequent one, in
which it was dirsegarded. . - - -
After advising a petition and complaint for Sir Alexander Campbell, which
was followed with answers, replies, and duplies, - - -
The Lords found, That the freeholders did wrong in not admitting Sir Alex-
ander Campbell to the roll of electors. -
A reclaiming petition was preferred. The arguments in it were entirely con-
fined to the validity of the decree of valuation in 1753; but it was refused
without answers. * - - - .
Act. Solicitor-General, et alii. Alt. Dean of Faculty, Wight, et alii. Clerk, Home.
C. Fol. Dic. v. 3. p. 408. Fac. Col. No 159. p. 318.
- *.* This case was appealed:
THE House of LoRDs, 5th March 1791, ORDERED that the appeal be dis-
missed, and the interlocutors complained of affirmed.' "..
No 56.
96 MEMBER of PARLIAMENT.
No 57.
No 68.
Fishing-boats
included in
the grant of
a barony from
the Crown,
and immemo-
rially posses-
sed, by letting
them along
with fisher-
men's houses
and crofts, at
a permanent
rent, sustain-
ed as a pre-
per subject
of valuation,
when sepa-
rately dis-
poned, to
rmake up a
Div. III.
S E C T. IV.
What Subjects are to be Valued.
1772. july 31.
SIR LUDovick GRANT, Baronet, and Others, against JAMES EARL FIFE,
- - and Others. - * .
THE Court reduced a decree of valuation, challenged upon various grounds;
particularly, that it had proceeded without proper proof, and that the rent of a
garden and orchard had been omitted in the proof the real rent.
Reporter, Auchinleck. Act. Rae.
Alt. Solicitor Dundas et Ilay Campbell. Clerk, Pringle.
Fac. Col. No 23. p. 65.
*** This case was appealed:
THE House of LORDS, IIth March 1773, ‘ ORDERED and ADJUDGED, That
the interlocutors complained of in the said appeal be, and the same are hereby
reversed.” -
I773. August 7.
LoRD ADAM GoRDON of Prestonhall, against JAMEs DUFF, Sheriff. Clerk
• of Banff. -
JAMEs DUFF was enrolled as a freeholder in the county of Banff at Michael-
mas last, upon a liferent superiority disponed to him by James Farl Fife, com-
prehending, amongst other subjects, the boats of Down, stated at a valuation
of L. 46; 17 : 7 Scots, being the sum alloted to the boats of Down, paying
L. 18 Sterlińg of yearly rent, at a division of the cumulo valuation of the lands
and barony of Down, comprehending the particular subjects conveyed to Mr
Duff, and others, made by a general meeting of Commissioners of Supply of
said county in May 1771. *
A complaint having been preferred against this enrolment, it was objected in
point of form, That the statute of tile 16th of Geo. II. limits the time
for giving in complaints to four kalendar months after the Michaelmas meeting:
That the last Michaelmas meeting at Banff was held upon the 25th of Septem-
ber 1772 years; but the record of court, appointing the complaint to be serv.
ed, does not bear date till the
26th of January 1773, being after the four
months are expired. - * , . . -
SECT. 4. MEMBER OF PARLIAMENT. 97
Anſwered, The complaint was put into the Lords’ boxes upon Friday the 22d
January, which was clearly within the four kalendar months ; it was moved
upon Saturday the 23d, and ordered to be served, although the deliverance ap-
pointing the service was not wrote out by the clerk, so as to be 'signed, till
Tuesday the 26th January. *
The delay of the clerk, however, does not vary or alter the day, either of
presenting the complaint, or of pronouncing the deliverance ; and the clause of
the 16th of the late King, which regulates i' is matter, bears expressly, that a
freeholder is “ to apply by complaint to the Court of Session, Solas such applica-
tion be inade within four lzalendar mor, the after ouch on coln, a rat.” It is there.
fore sufficient if the complaint is presented within the four kalendar months;
and, if that is done, it saves the prescription, although the Court, from accident
or necessity, should delay to pronounce any deliverance on the complaint, or
that the clerk, by accident, as in this case, delays to write out the deliverance
after it is pronounced.
THE Court repelled the objection made to the competency of the com-
plaint, in respect of the answer.’
One objection chiefly insisted on against Mr Duff’s qualification was, That
part of it was made up of what is called the Boats of Down, which not being a
proper feudal subject, or yielding a permanent rent, except what arises from
the value of the boats themselves, ought not to have had a part of the cumulo
valuation allotted to them. And in support of this objection, it was argued,
That white fishing upon the coast of the sea is not a right of property; and
that, though the heritor adjacent to the coast may have boats, and employ fish-
ers, yet this is altogether a precarious subject ; and, as it cannot debar others
from fishing in the same place, he cannot be allowed to consider it as his pro-
perty, or to lay any proportion of his cumulo valuation upon it.
THE Court, by their first judgment, sustained the objection to Mr Duff’s
qualification, that the fish-boats of Down are not a proper feudal subject.’
This judgment having been brought under review, it was contended for Mr
Duff, imo, That there is nothing to hinder the Crown from granting an exclu-
sive right of white fishing within bays or creeks, or adjacent to the lands of the
grantee; he likewise condescended on sundry instances of such grants of white
fishings for more than a century back ; and averred, that, in every division
that has been hitherto, made, the rents of such white fishings had been taken
in computo in making such divisions, and a share of the cumulo valuation has
been allotted to them accordingly. And here such a right was effectually grant-
ed and established by the charters from the Crown to Lord Fife, and his prede-
cessors, of the barony of Down, with white fishings, and others belonging
thereto, and particularly the whole boats, fishings, shores, and anchorages,
• pertaining thereto,' &c. Under which grants, his Lordship, and his predeces-
sors, stood infeft in those fishings, boats, &c. as well as the lands of the barony,
for more than two centuries past, as appears from the charters and Sasines on
N
No 68.
98 -* MEMBER of PARLIAMENT. - Div. IIſ.
No 6 8.
record; and the claimant himself stands infeft in the subjects in question, upon
the charter under the Great Seal, conveyed to him, containing a warrant for in-
feſtment in the boats as well as the lands. -
Even supposing, for argument's sake, that the boats or fishings were not ori-
ginally the proper subject of a feudal investiture, it would not now be a good.
objection. Subjects not in their nature capable of infeftment, may by usage
become so. In whatever light, therefore, this matter would have fallen to be
viewed in the beginning, the usage of two centuries must be sufficient to ren-
der the boats and fishings the proper subject of a feudal investiture.
2do, Although it were to be admitted that a light of white fishing was in no
degree capable of appropriation, it would not in the least hurt the claimant's
plea. The objector does not seem to attend to the nature of the subject from
which the article of valuation in dispute does arise. The persons who possess
and occupy these boats, have also houses and yards, or crofts, along with their
boats; and the rent is payable for the whole. These houses and lands are not
only in the strictest sense feudal, but they are undoubtedly the proper subject
of valuation, and the boats fall to be considered as a proper pertinent thereof.
That is truly the nature of the subject for which the rent is payable, accord-
ing to which a proportional share of the valuation was given off; and, as the
rent has been a fixed and a permanent rent for time immemorial, as Can be in-
structed by authentic rentals, in which it had always been included, it does not
occur to the claimant, how the Commissioners of Supply could avoid laying
upon these subjects a proper share of the cumulo.
And, therefore, it is unnecessary to enquire whether the proprietor of these
houses and lands had an exclusive right of fishing white fish in the sea adjacent
to the lands or not; for, if the heritor has received a fixed and permanent rent
for his property, his subjects fall to be valued agreeably to the extent of the
rent he received; and, ºn dividing the cumulo under which they were compre-
hended, a share of it would fall to be given off, effeiring to the rent which they
truly yielded. -
Upon advising petition, answers, and replies, the Court altered the former.
interlocutor, repelled the objection, and assoilzied from the complaint.”
Aćt, Solicitor Dundar, Cosmo Gordon. Alt. D. Rae, Ilay Campbell. Clerk, Rou.
- Fol. Dic. v. 3. p. 409. Fac. Col. No 89. p. 224.
*** A similar decision was pronounced, M'Leod of Cadboll against Blair. .
See APPENDIx.
SECT. 5. MEMBER or PARLIAMENT. 99
1773. Auguſt Io. ABERCROMBIE against GoRDoN.
- No 69.
MILLs, where they have been once valued, ought to receive a proportion of
the cumulo to be divided. See APPENDIx.
Fol. Dic. v. 3. p. 4og.
—nº lººm-
1791. February 23. DUNDAs and Laing against TRAIL. •,
THE statute 1649, directing the Commissioners to report the value of all feu No 70.
or tack-duties payable to any person, his Majesty's duties excepted, it was ques-
tioned, whether, on account of this exemption on lands holden of the Crown, the
lands liable in payment of these duties were to be retoured at their full value,
or with a deduction corresponding to their feu-duties. THE Lords found,
That such lands ought to be retoured at their full value.
- - Fol. Dic. v. 3. p. 409.
*** This case is No 48. p. 8639. h. t.
~
S E C T. v.
How a division of Valuation may be set aside.-Every Party interest-
ed in a division ought to be made a Party to it.-Erroneous division.
1751. February 12. GoRDON against Gordon.
No 71,
The Court of Session is competent to set aside divisions of valuation made by
Commissioners of Supply, upon defects in point of form.
- Fol. Dic. v. 3. p. 411. D. Falconer.
*...* This case is No 79, p. 7345, voce JURISDICTION.
*mmºn
1753. February 21. Colonel. ABERcRoMBY against LESLY of Melross.
- - - - - No 72.
At a meeting of freeholders of the county of Banff, anno 1752, William There 7. be
Tesly of Melross, was inrolled for certain lands, valued at L. 4oo, by a decree ::::::: º
of the Commissioners of Supply produced to the meeting.
-- 2
* *
IOC MEMBER OF PARLIAMENT. DIV. III.
No 72.
the commis-
sioners of the
land-tax, but
by appoint-
ment of the
convener, or
of a former
meeting.
A freeholder
whose valua-
tion had been
divided at a
meeting not
regularly cal-
led, was ex-
, punged from
the roll.
i
No 73.
the act 1681 affords an answer.
A petition was presented to the Court of Session by Colonel Abercromby,
complaining of this enrolment, for the following reason, That there was no le-
gal evidence of the valuation, the meeting of the Commissioners who divided
the valuation being irregular, neither appointed by a former meeting, nor call-
ed by the convener. - -
THE LORDs were clear, that by all the statutes for the land-tax there can
be no regular meeting of the Commissioners but by appointment of a former
meeting or of the convener; and therefore ordained Lesly of Melross to be
struck out of the roll. +
My single difficulty was, That admitting the objection against the decree of
the Commissioners, does it follow that the respondent must be struch out of the
roll, when, after all, his lands may bear a valuation to entitle him to a vote. It
appears more agreeable to the rules of justice, that this Court, thought but a
Court of appeal in matters of this nature, might take evidence, before answer,
to clear the fact whether the respondent had, or had not a qualification. But
It is declared, “ That none shall have a vote,
‘ but who at the time shall be publicly infeft, and in possession of a forty-shilling
‘ land of old extent, or shall be infeft in lands liable in the King's supply for
* L. 4oo of valued rent.’ This points out lands actually enrolled in the cess-
books for L. 400, which indeed is the only rule for the freeholders, who have
no power to value or to split a valuation; and therefore, though a man should º
be in possession of the major part of a barony, valued, if you please, at L. Icoo,
yet this gives him no qualification. His lands must be separately valued by a
regular meeting of the Commissioners. The barons did wrong to admit the
respondent upon the roll when he had no qualification. It was right therefore
to expunge him ; reserving to him a second application, when he obtains a pro-
per qualification. . * - *
* Fol. Dic. v. 3. p. 412. Sel. Dec. No 4I. p. 46,
*** This case from the Faculty Collection, is No 6. p. 2437.
voce CoMMISSIONERS OF SUPPLY.
—sumº ºn- -
1754. January 9. CUNINGHAM againſt STIRLING.
This objection to a division of valuation was sustained, that it was made at
al meeting not.regularly called, although the original valuation of the County. --
was not extant; on which ground it was argued, That there was no proper evi-
dence of a cumulo valuation, the cess-books being said to be insufficient to prove , ,
that point. - -
Jºol. Dic. v. 3. p. 412, Fac. Col.
*** This case is No 7, p. 2438, voce CoMMISSIONERS of SUPPLY.
SECT. 5. MEMBER of PARLIAMENT. * |O I
1754. March 6. CAMPBELL against STIRLING.
A Division by a private meeting was found to be homologated by a reference
made to it by a meeting regularly called. This decision was affirmed on appeal.
Fol. Dic. v. 3. p. 412. Fac. Col.
*** See the particulars, No 8, p. 2439, voce CoMMISSIONERS OF SUPPLY.
– sº lººm--
1755. February 18.
THoMAs For RESTER of Denovan, againſt Sir GEORGE PRESTON of Valleyfield.
SIE GEORGE PRESTON was enroled in the roll of the freeholders of the coun-
ty of Stirling entitled to choose a representative to Parliament, at their meet-
ing held for election 17th May 1754. * -
Thomas Forrester, one of the freeholders, complained of the enrolment to
the Court of Session, and objected, That the defender's lands were not of L. 4oo
valuation, and that the Commissioners of Supply, who had lately disjoined their
valuation from the original valuation in cumulo of the barony of Airth, where-
of they were a part, had made a wrong division on purpose to create a vote to
the defender. For, Irt, The committee of Commissioners, in taking a proof of
the rent of these parts of the barony which belong to Mr Graham, and had.
been feued out by him and his authors, had only taken a proof of the feu-du-
ties payable to Mr Graham ; whereas, when any of the defender's lands had.
been feued out, they had taken a proof of the real rent of these lands, as ap-
peared from the minutes of the Commissioners of Supply, where this unfair
proceeding of the committee was objected against. 2dly, The Committee had
omitted altogether to take a proof of the rent of some parts of the barony
which belonged to Mr Graham, amounting to L. 412 Scots yearly which had
been objected against the report of the committee when made to the general
meeting of the Commissioners of Supply, and the pursuer had offered to in-
struct the objection to the meeting of freeholders by the affidavits of the te-
nants in these parts of the barony, and now offered to prove these facts by
them and by other witnesses. - -
Answered for the defender ; Imo, That the feu-duties were the real, rents of
the lands at the time they were feued out, and that the encrease of the real.
rent was owing to theifeuers building houses on their feus; and therefore that
the feu-duties ought to be considered as the rent, conform to which the valua-
tion of the lands should be divided. 2do, That the feues belonging to Mr.
Graham were numerous and small ; so that a proof of the real rent of them.
would have been very difficult, if not impossible, especially as many of them:
Q
No 74.
No 75.
If the divi-
sion of the
valuation of
lands appear
ex facie to be
regular, the
court of free-
holders ought"
not to re-
ject it, nor
will the Lords
set it aside by
exception, al-
tho' the objec-
tor offer to
prove that
it was made
improperly
and without
evidence ;
tho' it may
be set aside
by reduction.
Io2 MEMBER of PARLIAMENT. Div. III.
No 75.
are in the natural possession of the feuers; and although it is was an error not
to follow the same rule in the proof of the rent of the defender's part of the
barony, yet the error did not affect the defender's qualification for voting ; be-
cause, though the difference betwixt the real rent and the feu-duties, which is
only L. 59 : 13: 4 Scots, were deducted, still the valuation of his lands would
exceed the L. 4oo Scots. -
And as to the allegeance that the Commissioners had altogether omitted to
take a proof of the rent of some parts of the barony belonging to Mr Graham,
answered, That the affidavits were no legal proof of the fact; and that the
meeting of the freeholders could not take a proof of it; but behoved to consi-
der the decree of the Commissioners of Supply as proper evidence of the valua-
tion, unless an error had appeared ex facie of the decree; and as in this com-
plaint, the Lords are only reviewing the proceedings of the freeholders; there-
fore if they did right, the Lords must affirm their judgment, although the de-
cree of the Commissioners should be liable to be reduced, when a proper pro-
cess is brought for that purpose. - - r
Replied for the pursuer ; That the real rent of the feus holding of Mr
Graham, in one part of this estate alone, exceeds the feu-duties payable to him
out of that part by L. 700 Scots of yearly rent; and the whole of this differ-
ence is not owing to the rents payable for houses, but is partly rents of lands;
of which a proof by witnesses was offered ; and it was contended, That a proof
of this, and of the other allegeance, viz. that part of Mr Graham's real rent had
been omitted to be proved, was competent, both before the freeholders and in
this process; because, although the freeholders cannot reduce the decrees of
the Commissioners of Supply, yet they are judges, in the first instance, of the
Commissioners' decrees of division, so far as concerns the right of voting for
Members of Parliament; and not only may, but ought. to disregard these
decrees, when they appear to be partial and iniquitous, and that whe-
ther the iniquity appears ex facie of the decree, or the objections are
offered to be proved by unexceptionable evidence: That, in the present
case, it appeared, from the decree of the Commissioners, and from the
minutes of election by the freeholders, that these objections, which were un-
doubtedly relevant, had been made, and a proof of them offered to the Com-
missioners and to the freeholders, and that they had both refused to admit the
proof. This was the wrong complained of; and, for that reason, subject to the
review of the Lords in this complaint. Were it otherwise, the right of electing
Members of Parliament would be put, not into the hands of the freeholders,
but entirely in the power of the Commissioners of Supply; since, if this me-
thod of obtaining redress was prevented, it may be justly called in question,
whether any particular freeholder could pursue a reduction of the decree of the
Commissioners ef Supply; seeing he could have no pecuniary interest in the
matter 2 ---
SECT. 5. MEMBER OF PARLIAMENT.
“THE LORD's dismissed the complaint.”
Act. 3. Dundas & Cockburn. Alt. Lockhart & A. Pringle. Clerk, Forbes.
B. Fol. Dic. v. 3. p. 411. Fac. Col. No 14 r. p. 212,
—-m--
1760. july 24. EARL of Home against STEPHEN Broomfield.
STEPHEN BROOMFIELD was proprietor of certain lands holding of the Earl of
Home, and of other lands holding of the Crown, all lying in the shire of Ber-
wick.’ -
Broomfield applied to the Commissioners of Supply, setting forth, that all
his lands were charged in the cess-books in cumulo ; and craving, That the cess
of the respective lands should be divided in proportion to the real rent. The
Commissioners took a proof, and pronounced a decreet of division,
The Earl of Home contended, That by this decreet, the lands holding of him
were valued too low ; and brought a reduction of it upon this, amongst other
grounds, That it was null, in respect the Earl, the superior, was not made a
party to the process of division before the Commissioners of Supply ; and he
insisted, That as freehold qualifications are now esteemed a valuable property,
and as the tendency of the process of division was to restrict the valuation of
the lands of which he was superior, he had a manifest interest in the question,
and ought to have been made a party.
Answered for Stephen Broomfield, No law requires, that superiors be called .
in divisions of valuation. The acts of convention, and acts of Parliament,
which authorise Commissioners of Supply to make such divisions, mention no
such thing; and the universal practice proves, that it is not necessary. The
Crown is superior of all the lands in Scotland; and yet the officers of state are
never called in divisions of valuation. If then it were necessary to call the
superior, all divisions hitherto made would be void. -
“ THE LORDs repelled the reasons reduction.”
Reporter, Auchinleck. For the Earl of Home, Pockhart. Alt. Ferguſon. Clerk, Åtrépatrick.
W. N. Fol. Dic. v. 3. p. 409. Fac. Col. No 240. p. 439.
—-mº ºmºmº- -
1774. March Io. * - ,
GEORGE Ross and Others, against Sir RodeRICK MEENZIE and Others.
Sir Roderick MºkENzie, and certain other gentlemen, having claimed to
be enrolled as freeholders of the county of Inverness, their claims were rejec-
ted by the Michaelmas meeting, as being founded on decrees of division of
cumulo valuations that were exceptionable. Complaints were preferred to the
No 75.
No 76. 1 .
In an appli-
cation to the
commission-
ers of supply,
for dividing
the valuation
of lands
which are
charged in
cumzulo in the
cess-books,
found unne-
cessary to
make the
superior a
party.
No 77.
It is compe-
tent to any
freeholder to
challenge de--
I C4 MEMBER or PARLIAMENT. Div. III,
No 77.
crees of valu-
ation, tho’ he
has no other
interest in
challenging
it, than mere-
ly to support
objections to
the enrolment
of freeholders.
Court against this refusal ; and the freeholders, besides giving in answers to
them, instituted an action of reduction, at common law, of these decrees. In
the course of it, a hearing, in presence, was ordered on the two following
points; 1st, The jurisdiction of the Court of Session to review or correct the
proceedings of the Commissioners of Supply with respect to valuations; and,
2dly, The title of the pursuers, as freeholders and land-owners in the county,
to challenge the decrees of division in favour of persons claiming to be enrolled.
On the first head the pursuers pleaded ; By a solemn decision of the Court,
in the case of Gordon contra Gordon, 12th February 1751, No 71. ſupra,
this part of its jurisdiction was fixed, and has accordingly been acknowledged,
in a great variety of subsequent instances. On the proceedings of Commis-
sioners of Supply depend, not only rights of election, but several other impor-
tant civil claims, arising from valued rent; such as those respecting the divid-
ing of commonties, the reparation of churches and manses, the maintenance
of the poor, or schoolmasters salaries. Surely, then, it is neither reasonable
nor expedient that wrongs committed in such particulars, by Commissioners of
Supply, should be altogether irremediable, which they must be, if their act-
ings shall not suffer the review of the Court ; that of the House of Peers being
of course likewise included ; Lord Bankton, B. 4. Tit. 18. § 3. ; Erskine, B. 1.
Tit. 4. § 3 I. W -
As to the second head, it was pleaded by the pursuers; A freeholder standing
on the roll, and possessing the right of voting for a representative in Parlia-
ment, a right which the law recognizes as valuable and patrimonial, is entitled
to its protection, in order to prevent this right's being encroached on or dimi-
nished; and on that principle proceeds the act 16th of George II. authorising
objections to freehold qualifications. The right of objecting is wisely placed in
freeholders themselves, and could not properly have been otherwise conferred.
Being once allowed, it must necessarily extend to the evidence of the valued
rent, as much as to any other part of the claimant’s qualification, and may be
rendered effectual, either in the form of complaint, as authorised by statute,
or, if the nature of the case should require it, by an action of reduction at
common law. * - -
Answered, with respect to the first point ; As the Court of Session have no
radical jurisdiction in the matter of cess, nor any delegated jurisdiction in it by
act of Parliament, it seems to follow of consequence, that they are not em-
powered to review the acts or proceedings of the Commissioners of Supply. . .
Answered, on the second point; Wherever a regular and formal decree of the
Commissioners of Supply, labouring under no intrinsic nullity, is produced to
a meeting of freeholders, they are bound to regard it as complete evidence;
and, even though, ex facie of the production, it appears to have proceeded on
insufficient grounds, still they are not entitled to challenge it; which is evi-
dent from the spirit of the different acts of supply. The burden of taxation,
and the privilege of voting as a freeholder, mutually correspond together.
Sect. 5. MEMBER or PARLIAMENT. IoS
Hence that evidence which is sufficient to establish the one, must be held as
adequate to confer the other. Nor is the jurisdiction of the freeholders in this
matter more limited than it appears in various analogous cases. Thus, when
charter and sasine are produced to them, containing lands amounting to the le-
gal'qualification, they are bound to enroll; nor though, by another production
made at the same time, the charter should be shewn to be collusive or surrep-
titious, could they enter on any investigation of its merits. In the same man-
ner are their investigations precluded in the case of a freehold created on an
entailed estate, and, in general, in all those instances where the restriction
flows a non domino. With respect, likewise, to a retour produced to evidence
the old extent prior to 1681, it may be observed, that no meeting of free-
holders have yet thought themselves entitled to discuss the justice of the ver-
dict, or to refuse to it the appellation of probatio probata.
Freeholders, therefore, being destitute of right to challenge such decrees of
the Commissioners of Supply as are not intrinsically null, any diversity in the
mode of proceeding, whether in that of complaint or of reduction at common
law, can have no influence on their title ; though, indeed, there is this diffe-
rence in the matter, that the former is an action authorised by statute, where-
as the latter is altogether unwarranted. For there is no such idea known in
this country, as an action at common law for the trial of a freehold qualifica-
tion. - # --
THE LORDs “repelled the objections to the competency of the action of re-
duction, and also to the pursuers title to insist therein ; and found the ex facie
grounds of challenge competent to be tried in the complaint.”
Act. Ilay Campbell. Alt. Lord Advocate. Clerk, Tait.
The decision in this cause, upon the preliminary point, regulated the deter-
mination of a similar question judged of by the Court, between Earl Fife and
the Duke of Gordon, June 16. 1774, which follows. - -
Fol. Dic. v. 3. p. 412. Fac. Col. No 1 Io. p. 294.
1774. june 16. - - - -
JAMEs EARL FIFE, Mr ARTHUR DUFF of Ortoun, Advocate, and Captain DUN-
can Urquhart of Burdsyards, againſt ALEXANDER DUKE of GoRDON, ALEx-
ANDER DUNBAR of Thunderton, and Others. *
The lands, lordship, and barony of Duffus, stood in the original valuation
roll of the county of Elgin in 1667, in the parish of Duffus, under the fol-
lowing article : - & ~ *
Lord Duffus º sº. *::: Fº L. 23°s 5 &
i O
No 77.
No 78.
Found in con-
formity with
Ross against
Ioô MEMBER or PARLIAMENT. Div. III.
No 78.
Mackenzie,
No 77. supra.
Found like-
wise, that
valuations
long acquies-
ced in, and
acted upoa,
ought not to
be called in
question.
The said lands and barony were afterwards purchased by Archibald Dunbar
of Thunderton, to whom Sir Robert Gordon of Gordonston, in 1730, disponed
the lands of Ashdale, and others, in excambion for certain parts of the barony
of Duffus. -
Prior to 1748, Archibald Dunbar, then of Thunderton, sold certain other
parts of the barony of Duffus to the Duke of Gordon, but reserving to himself
the multures of the said lands, with the mills of Sheriff mill, Unthank mill,
and Outlet mill; and, in that year, he disponed to the late Earl Fife the said
mills of Sheriff mill, Unthank, and Outlet, and astricted multures, &c. in con-
sequence of a minute of sale entered into between them in 1740. These mills
and multures were afterwards disponed by Lord Fife to his son Mr Archibald
Duff, one of the present pursuers. * . -
The Earl Fife, &c. in the characters of freeholders, land-owners, and Com-
missioners of Supply in the county of Elgin, and Mr Arthur Duff, as being,
besides, patrimonially interested in the question, qua proprietor of the mills of
Sheriff mill, Outlet, and Unthank, to which the barony of Duffus is astricted,
brought an action for setting aside a decree of division of the cumulo valuation
of the barony of Duffus, in 1752, proceeding upon a petition presented to the
Commissioners of Supply, in the names of the late Duke of Gordon and the
said Archibald Dunbar, and certain after divisions, made by the Commissioners
in 1769, 1770, and 1772, of the shares of the original cumulo set off to the
Duke of Gordon and Dunbar, as proprietors of parts of the said barony, among
the several lands belonging to them. - -
The defenders did not dispute Mr Arthur Duff's title, as proprietor of the
mills, to insist for a rectification of the division, so far as his patrimonial interest
is concerned, unless it were found that, by his or his predecessor's conduct, he
is barred from insisting on such a challenge. But to the title of the other pur-
suers, at large, to insist in this action, an objection was stated similar to that
pleaded in the cáse from Inverness shire, No 77. ſupra, which the Court repel-
led in respect of the judgment there given. - *
Upon the merits it was drºued ; AS to the division 1752, (upon the fate of
which all the subsequent divisions depended) that it was liable to three insur-
mountable objections; Imo, That it was not made or authorised by a meeting
of Commissionets of Supply, but by a private meeting of two Commissioners
nly, and precisely in terms of the prayer of the petition presented for the
Duke of Gordon and Thunderton; whereas it is a clear point, fixed by sundry
decisions of the Court, that all divisions of valued rent can only be made by a
general meeting of Commissioners of Supply. 2do, That all parties having in-
terest were not called ; for both Lord Fife and Sir Robert Gordon were interest-
ed in the cumulo of L. 2308 : 5: 8, which was the subject of the division 1752. '
3tio, That the division itself is materially and substantially erroneous and un-
just, as being made, in mere compliance with the petition, without any evi-
dence of the real rents of the lands included under the cumulo , and the whole
SECT. 5. * MEMBER of PARLIAMENT. Io?
cumulo is divided between the Duke of Gordon and Thunderton, without giving
any part thereof either to the lands which Sir Robert Gordon had received in
excambion, which were clearly comprehended under that cumulo, or to the
mills of Outlet, Unthank, and Sheriff mill, then belonging to Lord Fife, as pur-
chased by him from Thunderton, though these were also clearly a part of the
original cumulo, and yielded no less than 10oo merks of yearly rent, which was
about a tenth of the value of the whole lands comprehended under the cumulo.
Anſwered to the firſt objection ; The Commissioners of Supply approved of
the division in 1752, in the strongest manner possible; for, in the divisions
1769, 1771, and 1772, they proceeded upon the footing, that the valuations
belonging to the Duke and Mr Dunbar were properly and legally established
by the division 1752. * ye
To the second and third ; The allegation of the division being without evi-
dence, is altogether a misrepresentation; for the Commissioners proceeded up-
on the data of a judicial rental of both estates, and a calculation made by an
eminent accomptant, to which no objection is or can be made. There is not so
much as an allegation of any injustice or partiality intended, but a division
gone about for the legal and and necessary purpose of ascertaining the cess real-
ly payable by the respective lands, both of the parties willing to take upon
them the burden of the cess to which they were really liable, but neither of
them willing or intending to take more upon them than in justice they were
liable to. And further, this division was finally completed more than twenty
years ago; cess has been regularly paid, agreeable to it; various committees of
Parliament have been since nominated for levying the cess, and those very pur-
suers among the number of those Parliamentary Commissioners or Trustees;
and yet, during all that period, neither they in a public capacity, nor any per-
son in a private capacity, have made any exception to those divisions.
2dly, Sir Robert Gordon makes no complaint. The excambion with him
took place as far back as 1730. The excambed lands were then precisely of an
equal rent ; and, when that is the case, it never enters into the minds of the
parties to make any variation in the payment of cess, or in the cess-books.
Each of the parties continued, ever since that time, to pay cess conform to their
former valuation; and Sir Robert Gordon, many years ago, divided his cumulo,
without giving any share to the lands which he had given off to Mr Dunbar.
Lastly, Although it seems perfectly clear, that mills, where there is no thir-
lage, ought in no case to receive a share of a valuation, it is by no means a
clear point, that mills ought to receive a share of the valuation, even where
there is a thirlage; for, as the existence of a mill is altogether precarious, it
seems to be an improper subject upon which to depend for payment of public
burdens, which is the great object of valuation. *
The defenders do not deny, that, in many valuation books, mills are made
mention of. But it is very inconclusive from thence to argue, that this was a
O 2 *. *
No 78.
Io9 MEMBER or PARLIAMENT. DIv. II.
No 78.
rule which all Commissioners either did follow, or were bound to follow; and,
therefore, the defenders can by no means admit, that a division of valuation is
to be held as a bad division, because a mill did not receive a share of the cumu-
lo ; it being, at least, a doubtful point, how far the mill was originally includ-
ed in the valuation. And this general observation seems to apply with irresist-
ible force in the present case, when it appears, that, although the mills in
question were given off to another proprietor, as far back as 1740, so much was
it the understanding of the country, and of all parties, at the time, that those
mills ought not to receive any share of the valuation, that the proprietor's
lands continued to pay the whole of the cess, and the proprietor of the mill has
never paid any share of it; a circumstance which could scarcely have occurred,
if the parties had understood their rights to stand as now contended for by the
pursuers. At that time there were no politics subsisting, to suggest the idea of
imaginary rights; and, therefore, the Court will pay much more regard to any,
idea which then prevailed, than to the conceptions which other views may have
newly suggested. - *
Indeed, although no other defence occurred against the present action, the
pursuers would be barred, by the circumstance last mentioned, from insisting
in their present plea. Mr Duff, or his author, ought, de recenti, to have set up,
this claim, and cannot now be permitted to insist upon it, after having acquies-
ced for such a course of years, without making any murmur or complaint res-
pecting what had been done. Justice, therefore, requires it to be presumed,
that every thing was so settled originally, in virtue of the agreement of parties. *
But, further, there is not only acquiescence, but ref non runt integra to the
other party. The Duke of Gordon and Mr Dunbar have not only paid the
whole cess since that time, but have divided this whole cumulo among their
respective lands; and even those divisions have again undergone sub-divisions,
for lawful and beneficial purposes; and, therefore, no justice will permit those
whole transactions to be pulled up by the root, at the instance of Mr Arthur
Duff, whose claim was equally well founded in the 1740 as it can be now at
the distance of 33 years. * * *
THE Court, moved by the long taciturnity and acquiescence of all parties,
the division having stood so long in the cess-books, and payment of cess made
conformable thereto, were of opinion, that Mr Duff's challenge came HQW too
late; and, therefore, “repelled the reasons of reduction of the division 17 52.”
Act. L. Advocate. Alt. Macqueen. Clerk, Tait.
Fol. Dic. v. 3. p. 412. Fac. Col. No 113. p. 301.
SECT. 5. MEMBER of PARLIAMENT. Io9'
I774. August, Io. - -
CHARLEs Boyd, Esq; against General JAMEs ABERGROMBY of Glassoch.
MR. Boyd had got a freehold qualification from the Duke of Gordon, in the
county of Elgin, consisting of the liferent of a superiority of certain parts of
the barony of Gairtly, lying in the said county; and his Grace had given a si-
milar qualification, upon other, parts of the said barony, to Sir Alexander Gor-
don and William Boyd, Esq: And, as the whole barony of Gairtly stood valued
in cumulo, hence a decree of division was obtained, upon an application-by his
Grace to the Commissioners. of Supply. - º
The Messrs Boyds, among others, claimed to be enrolled at last Michaelmas;
but the freeholders, having been of opinion, that the decree of division was
null, they rejected their claims, whereupon the claimants complained to this
Court. - -
The general objections to the decree of division being over ruled, special ob-
jections to the validity of the division, so far as respects the cumulo belonging
to the barony of Gairtly, were likewise urged ; one, in particular, as appli-
cable to Mr Charles Boyd's qualification, and arising from a discovery that had.
been newly made, upon inspection of one of the writs produced in this Court.
by the complainers themselves, to answer a different purpose, namely, a minute
of tack, dated 30th May 1765, granted by William Gordon, as factor for the
Duke, to George Gordon in Mains of Gairtly, of the Mains of Gairtly, and lands
of Hawkhill, for nineteen years from Whitsunday 1765, for which possession
he becomes bound, to pay to the Duke, yearly, the sum of L. 27 : 2 : I 4-12ths
Sterling, and II bolls oat-meal. “As also, the said George Gordon and his fore-
“ saids are to pay to the Duke, of Gordon, or his factor, at the term of: Whit-
‘ sunday 1766, the sum of L. Ico Sterling of grassum, in consideration of the
• foresaid lease, and immediately to grant bill payable for the said sum, in these:
* terms.” - * - - *
Objected ; It appears, from the decree of division, that no riotice was taken:
of this large grassum, which stands incontestibly proved-to- have been paid for
the tack at its commencement, over and above the yearly rent thereby stipu-
lated; but only a proof brought of the yearly rent payable by the tack, with-
out any addition being made thereto on account of the grassum ; whereas this
grassum fell to be proportioned upon the whole years of the tack, being in
reality a part of the rent or value paid by the tenant for the possession, as much.
as what he was bound to pay yearly thereafter ; and, consequently, that the
division made without regard to it, is most unjust and erroneous.
Answered, in the first place; If this is a good objection, the tendency of it.
behoved to be not to increase, but to diminish the complainer’s valuation. But, ,
2dly, There is no foundation for the observation. -
No 79.
An objection
to a decree of
division, that
no notice was
taken of a
grassum paid
at the com-
mencement of:
a tack, was
repelled.
II () MEMBER OF PARLIAMENT. Div. III.
- No 79.
No 8o.
| No 81.
It would, on the contrary, be extremely irregular and unwarranted, to hunt
after every gratuity or grassum which had been paid by a tenant. If, indeed,
it appeared that the old rent had been lowered in consideration of a grassum,
or that the grassum was extremely exorbitant, compared with the permanent
rent, there might be some shadow for an objection of this kind; but, here, the
whöle is a grassum of L. Ioo for a nineteen years tack, with a rent of about
I. 32 Sterling. In such a case, it would have been very exceptionable, if the
Commissioners had paid any regard to anything except the real permanent rent
payable by the tenant. In the cases from the county of Forfar, there was some
argument upon this point in the division of Lord Panmure's valuation; but the
Court paid no regard to the objection, although much stronger in that than in
this case. And, indeed, unless there is something very extraordinary in the na-
ture of the grassum, compared with the rent, it would be productive of very
great uncertainty and confusion, if the Court were to pay regard to such casual
circumstances.
THE Court “repelled this, as well as all the other objections to the decree
of division, and ordered the complainers to be put upon the roll.”
Act. Solicitor Dundar. Alt. Rae.
Fac. Col. No 135, p. 358.
—ºmmº ºm-
1780. july 25. FERGUSON againſt SHAw STEwART.
AN erroneous division of a cumulo valuation having been acquiesced in for 20
years, and the land-tax paid according to it, the LoRDs dismissed a complaint
against an enrolment made on the ground of that error.—See APPENDIx.
*...----ºs- Fol. Dic. v. 3. p. 309.
—mº Eºmº-
178c. December 6. MonTGOMERY-CUNNINGHAM against HAMILTON.
IN the division of a valuation, all parties who have interest ought either to
concur, or to be called as parties. But this rule is not enforced with rigour.
The Court will not sustain the simple objection made by a freeholder or com-
missioner, that he has not been called as a party, unless he can likewise show
that the division is materially wrong ; for, unless a division be faulty, no person
can properly be said to have any interest in challenging it. See APPENDIx.
ºve Fol. Dic. v. 3. p. 409.
SECT. 5. MEMBER of PARLIAMENT. III
1787. February 20. John CAMPBELL, and Others, againſt JoHN M'DowALL.
THE meeting of Commissioners of Supply that ascertained the valued rent of
Mr M. Dowall's lands, in virtue of which he was enrolled as a freeholder in the
county of Renfrew, had been held in consequence of an adjournment made at
a previous meeting, where, of five Commissioners present, only one had taken
the oaths to government.
A complaint having been, on this ground, preferred by John Campbell and
others, freeholders in the county, against this enrolment, Mr M*Dowall
Pleaded; By the annual statutes respecting the land-tax, or supply, a failure
on the part of the Commissioners to take the oaths to government has not been
made an essential objection to their proceedings. It only subjects them to cer-
tain pecuniary penalties. Nor would such an objection, although founded on
the statutes, be fatal to the valuation of the respondent’s lands. As no precise
number of Commissioners is required to constitute a meeting, a decreet pronoun-
ced even by one Commissioner duly qualified must, if intrinsically just, be quite
unexceptionable. *
Anſwered ; As the Commissioners of Supply are required, before any pro--
ceedings are held, to take the oaths to government, this must be considered as
a condition annexed to their appointment; otherwise, indeed, disaffected per-
sons might intrude into this office. So accordingly it was expressly found, 22d
Feb. 1751, Sutherland of Swinzie contra Sutherland of Langwell, No 5. p. 2436.
The other branch of the argument used in support of the proceedings in
question, seems to be equally ill founded. The statutes make mention of a
majority of the Commissioners, which evidently implies that the attendance of
more than one Commissioner is necessary; and the practice of requiring the
presence of five Commissioners, in those instances in which the Court of Ses-
sion has interponed to authorise a meeting, shews in the clearest manner the
opinion entertained on this head. Earl of Panmure and others contra The
Commissioners of Supply in the county of Forfar, No. 9o. infra; Duke
of Gordon contra The Commissioners of Supply of Banff, No 379. p. 767 f.;
Brown contra Hamilton, 6th December 1780, No 95. infra. ,
THE LORDS were unanimously of opinion, That the Commissioners neglecting
to take the oaths, was not a nullity in the proceedings; and that the case of
Sutherland, in 1751, was erroneously decided. They also seemed to think
that the presence of five Commissioners was not necessary, no such number
having been specified in the statutes. It was farther observed, that as the de-
creet of division under challenge had been pronounced at the meeting of Com-
missioners duly qualified, the circumstance of its being held in pursuance of an
adjournment, directed by a meeting at which the legal number of Commis.
Šioners was not present, could not afford a relevant objection,
No 82.
An objection
to a decree of
division of
the valued
rent pro-
nounced at a
meeting held
III COI, Se-
quence of an
adjournment
made a a
previous
meeting,
where, of five
commission-
ers present,
only one had
taken the
oaths, was ré
pelled.
II2 & MEMBER or PARLIAMENT, DIV, IHI.
No 82.
No 83.
Sub-division
of the valued
rent of a ba-
rony, made
in opposition
to the old
valuation-roll
of the coun-
ty, inept.
No 84.
)
As, however, posterior to the decreet in question, an act of indemnity had
passed, by which the proceedings of persons acting in offices of public trust,
without taking the required oaths had been ratified, it was unnecessary to de-
termine the case on any of the grounds which had been insisted on by the
parties. *
Alt. Honyman et alii. Alt. Wight et alti, Clerk, Robertson.
C. Fol. Dic. 7), 3. p. 412, Fac. Col. No 322. p. 495.
1787. February 20.
WILLIAM - CUNNINGHAM against Sir WILLIAM MAxwell, Baronet.
By the general valuation of the lands in the county of Renfrew, made up in
1654, and transmitted in 1709 to the Court of Exchequer, the lands of Boot-
ston, part of the old estate of Craigends, were separately valued at L. 25 Scots.
In the year 1781, the valuation of a part of this estate, including the lands
of Bootston, was sub-divided by the Commissioners of Supply, when, instead
of adhering to the value formerly put on this parcel, they rated it at L. 34.
William Cunningham having appealed to this decreet of division for ascer-
taining the valued rent of the lands in virtue of which he claimed to be enroll-
ed as a freeholder, the freeholders refused to admit him.
"dvising a petition and complaint for Mr Cunningham, with answers
William Maxwell,
AE LORD's dismissed the complaint.”
Aet. Geo. Ferguſson et alii. Alt. Wight et alii, Clerk, Robertson.
Fol. Dic. v. 3. p. 4I2. Fac. Col. No 323, p. 497.
S E C T. VI.
Who may act as Commissioners of Supply.—Time of their meet-
ing.—Consequences of their refusing to meet or divide.
1729. January I. *-
SINCLAIR of Freswick against DEAN of GUILD of Wick, and BAILIEs of Thurso.
IN an action against the Dean of Guild of Wick and Bailies of Thurso, as
liable to the penalty of L. 20, for having acted as Commissioners of Supply in
“SECT. 6. MEMBER or PARLIAMENT, I 13
the shire of Caithness, without being possessed of the legal qualifications re-
quired by the then act of supply, the LoRDs assoilzied ; for they thought that
these qualifications related only to particular persons nominatim appointed Com-
missioners, not to those appointed virtute officit.
N. B. The persons now entitled to act are such as stand infeft in lands with-
in the county, of L. Ioo valued rent in property or superiority, or their eldest
sons and heirs apparent; and Provosts, Bailies, Deans of Guild, Treasurers,
Masters of Merchant Companies, or Deacon Conveners of the trades, for the
time, of any royal burgh, and Bailies of burghs of regality and barony, if
mentioned in the act, either by name, or by their office. See APPENDIx.
Fol. Dic. v. 3. p. 410.
—- sº ºm-
1753. February 21. ABERCROMBY against LESLY.
THE supply acts name a day upon which the Commissioners of Supply are to
meet, and their after meetings are held by adjournment; and divisions of val
luation are reduced, if made at meetings neither held upon that
adjournment, nor by summons from the convener. *
Fol. Dic. v. 3. p. 410.
*** This case is No 6, p. 2437, voce CoMMISSIONERs of Supply.
*...* A similar decision was pronounced, 9th January 1754, Cunningham a-
gainst Stirling, No 7, p. 2438, also voce CoMMISSIONERS of SUPPLY.
—-mº-
1756. December 14. *
Sir Robert GoRDON of Gordonston, Sir ALEXANDER GRANT of Dalvey,
John INNEs of Leuchars, and Ludovick GRANT of Grangereen,
Petitioners.
THESE gentlemen being possessed of land in the county of Murray, which
stood in the cess-books valued in cumulo with the other lands in the county, ap-
plied to a general meeting of the Commissioners of Supply, OIl the 17th Au-
gust 1756, for a division of those cumulo valuations. The Commissioners pro-
ceeded to the division, took a proof of the real rent of the lands, and remitted
to an accountant to proportion the valuation according to the real rent.
At a subsequent meeting on the 1st of October thereafter, the accountant's
report not being ready, the Commissioners adjourned the general meeting to
the second. Tuesday of May.
The petitioners applied to the convener of the Commissioners, requiring him
to call a general meeting immediately; for that before the second Tuesday of
P
day, nor by
No 84.
No 85.
No 86.
The conven-
er,of Commis-
sioners of
Supply is en-
titled to call
an immediate
general meet-
ing, notwith-
standing of an
adjournment
made by the
Commission-
ers to a dis-
tant day.
II.4 MEMBER of PARLIAMENT, DIv. III,
No 86.
No 87.
No 88, «»
May, the Commissioners might all be superseded by the new commission for
the ensuing year, and so the whole proceedings in the division would be lost.
To which he answered, “ That he was ready to grant the desire of this applica-
“ tion; but it was now out of his power, as the Commissioners had adjourned
“ their general meeting till May 5 yet he was ready to do every thing incum-
‘ bent on him when properly authorised.”
In these circumstances, the gentlemen applied to the Court of Session by pe-
titions, craving warrant to the convener to call a general meeting.
It occurred to some of the Lords, that, in common form, these petitions
should be ordered to be served upon the convener and Commissioners, whereby
they might have an opportunity of answering them. But it being observed,
that the convener was willing to do his duty, and only wanted authority, as he
erroneously imagined, that form was judged unnecessary.
“THE LORDs found that the convener of the Commissioners of Supply of
the shire of Murray may, notwithstanding of the adjournment made by the
said Commissioners to the second Tuesday of May next, upon the application
of the petitioners, or any other party having interest, call a general meeting of
the said Commissioners without delay.”
For the Petitioners, Lockhart, Hamilton, Gordon. Clerk, Pringle,
Walter Stewart. Fol. Dic. v. 3. p. 410. Fac. Col. No 222. p. 322.
—-mº ºm-
1757. Auguſt 4. *
MALcol M, &c. against CoMMIssionERs of SUPPLY of Kirkcudbright.
A SMALL estate consisting of many parcels of houses, acres, &c. having been
split among a number of purchasers, they in a body applied for a division of
their valuation. The Commissioners alleging, That it was inconvenient to have
the cess separated into so many minute articles, refused to divide; but the
LORD's appointed the division to proceed. See APPENDIx.
_* Fol. Dic. v. 3. p. 410. .
-mº ºm-
1766. January 2I. GoRDON against ANDERSON. .
Two different persons were found qualified to act as Commissioners of 'Süp
ply, in virtue of infeftments in the same lands extending to L. 100 of valued
rent, though neither of them was the immediate vassal of the Crown, See AP-
PENDIX. See No Io. p. 2444.
* Fºl. Dic, v. 3. p. 409.
SECT. 6. MEMBER of PARLIAMENT. I 15
1766. February 12. GORDON againſt For BEs.
John Forbes of New, factor on the estate of Cromarty, being named among
the Commissioncrs of Supply for the county of Cromarty; the LoRDs found
that not being possessed of a legal qualification of L. Ioo valued rent, he had
no title to act.
Fol. Dic. v. 3. p. 4 ro,
*** This case is No 17, p. 1700, voce BonA ET MALA FIDEs.
—ºm-
1766. November 15.
EARL of PANMURE, &c. against CoMMISSIONERs of SUPPLY of Forfarshire.
THE Commissioners of Supply of Angus having refused to make a division
of the valuation among a number of gentlemen, to whom the Earl of Panmure
had granted liferent dispositions, the LoRDs, upon a bill of advocation, refus-
ed to advocate; but found that the division must proceed, and ordained the
convener of the Commissioners to call a meeting for that purpose, as soon as
Gould conveniently be done. This order not having been complied with, the
Court, on a new application, ordained the Commissioners, or any five of them,
to meet upon a precise day, and to proceed in the division, by taking proof of
the rents, and examining all witnesses offered ; reserving every objection till the
division should be judged of; which they appointed to be done as soon as the
proof should be concluded. THE LORDs farther appointed any adjournment
which might be necessary, to be made to the first day upon which any five
Commissioners declared themselves willing to attend; discharged them from
taking up any other business till the division should be concluded, and ordain-
ed the clerk to attend by himself, or his deputy, so long as a quorum of five
Commissioners should continue together upon the business of the division. See
APPENDIX.
Fol. Dic. v. 3. p. 4II. .
*...* This judgment was affirmed upon appeal, with L. 200 costs,
-mº m -
1767. December 24. PULTENEY, &c. againſt GoRDON.
WHERE there is no convener, a private Commissioner may call a meeting.
Fol. Dic. v. 3. p. 4Io.
*** This case is No II, p. 2444, voce CoMMISSIONERS OF SUPPLY.
&
P 2
No 86.
No 90.
No 91.
I L6 MEMBER of PARLIAMENT. Div. III,
No 92,
No 93.
No 94.
A person
acting as a
COIT, Inls Sloner
of Supply,
without a
legal qualifi-
Call OIA in two
instances at
one meeting,
liable only in
one penalty.
Where pe-
nalties are
awarded,
Costs of suit
not exigible.
1768. March II. Hog of Newliston, Petitioner.
THERE being no convener of the Commissioners of Supply of a county, the
LoRDS ordained the last convener to call a meeting, the same being previously
advertised. See APPENDIX.
Fol. Dic. v. 3. p. 4Io.
--sºº. ººm-
STEPHEN againſt ABERCROMBY.
^.
*
AN order similar to that granted in the cause, Earl of Panmure, &c. against
Commissioners of Supply of Forfarshire, No 9o, ſupra, was given upon the
application of the Duke of Gordon, 18th December 1772, No 379. p. 7674,
voce JURISDICTION, in consequence of which order, the Commissioners In et On
the day appointed, but the majority, after stating certain objections, protested
against farther procedure. The minority, however, went on and made a divi- *
sion, and the Court of Session found they were authorised so to do, in respect of
the refusal of the majority. See APPENDIX.
I774. June 2 r.
Fol. Dic. v. 3. p. 411.
—- sº-
1775. july 25. JoHN MADAM and Others, againſt JAMEs LOGAN.
UNDER the authority of the land-tax act of Parliament for the year 1775,
M“Adam and others, heritors in the county of Ayr, preferred a complaint, Stat-
ing, that James Logan, who has not a sufficient qualification, did assume the
character of a Commissioner of Supply for the county of Ayr, at a meeting
held in the month of April last; and did, upon. that occasion, act in two dif-
ferent instances; firſt, in voting who should be clerk to the Commissioners of
Supply ; and next, in voting whether the salary of that office should be dimi-
nished; and concluding to find the complainers entitled to recoVer from him.
the penalty of L. 20 Sterling for each of the two several times that he illegally
acted as a Commissioner of Supply, with costs of suit.
Answered ; The respondent, who is possessed of a small property in the fore-
said county, having been solicited by some of his friends for his vote in the e-
lection of a clerk to the Commissioners of Supply for this current year, he
yielded to that solicitation, having been told, that if he had L. 20 of real rent
he was equally well entitled as if he had L. 100 Scots of valued rent: And it
is acknowledged, that he did unwarily attend the foresaid meeting upon the
SECT. 6. MEMBER OF PARLIAMENT.
II 7
29th of April last, and did vote in the two instances condescended upon in the
complaint, although he is only possessed ef L. 83 : 13:4 of valued rent : But
this will not found the complainers in a claim for no less than L. 4o Sterling.
t is submitted to the Court, if he might not maintain, that no more than one
penalty can be exacted upon one conviction; at any rate, he can never be
made liable for more than one penalty of L. 20 for his having acted at one
meeting ; and, indeed, the voting for the clerk, and the ascertaining the ex-
tent for the salary, cannot be considered in any other light than parter ejuſdem
negotii.
As to the demand for costs of suits, there is no foundation for it; the com-
plainers must pay their expenses out of the penalty they recover.
“THE Court found the respondent liable only in one penalty, and no ex-
penses due.”
Act. j. Borwell. Alt. M'Queen. Clerk, Tait.
Fol. Dic. v. 3. p. 410. Fac. Col. No 184, p. 107.
*** A different decision had been pronounced in 1766, Sir John Gordon against
Forbes, also in Gordon against Forsyth, ſee APPENDIx.
-ºš º –
December 6. WILLIAM BROWN against JoHN HAMILTON.
1780.
BRowN having acquired right to certain lands in the county of Ayr, applied
to the convener of the Commissioners of Supply, praying him to call a meet-
ing, for the purpose of ascertaining their valuation. This the convener at first
declined to do ; but, afterwards. in answering a protest taken against him, he
promised to advertise such a meeting, to be held on the 18th of October, i. e.
two days after that appointed for the election of a Member of Parliament for
the county.
Mr Brown concurred in a bill of advocation with some other gentlemen in
similar circumstances; and the Lord Ordinary officiating on the bills, 7th Octo-
ber 1780, “ in respect there was not time for appointing the bill to be seen and
-answered in common form, refused to advocate;” but appointed the Commis_
sioners of Supply, or any five of their number, to meet at Ayr on the 12th
current, and to proceed directly to divide and ascertain the valuation of the
lands belonging to the complainers. A quorum of the Commissioners accord-
ingly met, and found it proved that the valuation of Mr Brown's lands ałI10tlint -
ed to L.471 : 5: 2 Scots; which they ordered to be entered in the cess-books
and certified by their clerk. * 3.
Mr Brown claimed to be enrolled at the meeting for election on the 16th ;
when it was objected by Mr Hamilton,
-->
No 94.
No 95.
A party had
obtained a
division from
a meeting of
Commission-
ers, called by
order of
court in con-
sequence of
the conven-
er’s refusal,
but without
intimation to
the freehold-
ers at large.
Notwith-
standing of
an objection
on this ac-
count, the
party was or-
dered to be
enrolled-
II 3 MEMBER OF PARLIAMENT. DIV, III.
No 95.
Imo, That the meeting of the Commissioners on the 12th was irregular, and,
therefore, their decree did not afford sufficient evidence of the claimant’s va-
luation : And,
2do, That the claimant’s infeftment having been recorded on the 7th Octo-
ber 1779, and the writ for calling a new Parliament, bearing date the 2d Sep-
tember 1680, he had not been infeft a year before the test of the writ; and,
therefore, in terms of the statute of the 12th of Queen Anne, was not entitled
to be enrolled, so as to give his vote at the election.
A majority of the freeholder having sustained these objections, and refused
to enroll, Mr Brown complained to tho Court of Session; and,
With respect to the firſt objection, pleaded ; From the proof led by the com-
plainer, it appeared that the lands contained in his charter stood valued in the
cess-book at L. 471 : 5:2 Scots ; and the meeting of Commissioners, on the
12th October, having proceeded to ascertain that valuation, precisely in the
manner prescribed by the Lord Ordinary, their decree, as certified by the clerk,
afforded all the evidence required by law in such cases.
Answered ; The Commissioners of Supply cannot proceed, either to divide
cumulo valuation, or to ascertain the different lands to which such cumulo is ap-
plicable, except either upon the day of meeting named in the act of Parlia-
ment, from which they derive their powers, or at an adjourned meeting, or at
a general meeting properly summoned by the convener: So it was determined,
21st Feb. 1753, Abercromby contra Lesly, No 6. p. 2437; and 9th January 1754,
Cunningham contra Stirling, No 7, p. 2438. And the only regular mode of call-
ing such a meeting, is by an edictal citation at every parish church within the
county, on a Sunday, given under the authority of the convener; as was decided
in the House of Lords, 6th March 1779, Dundas of Dundas contra Wardrope of
Cult; and the same Mr Dundas contra Robert Durham. Sce APPENDIx.
The power of the Court of Session to review the proceedings of the Com-
missioners is not disputed. But here there was no proceeding to be brought
under review. The matter advocated was the exercise of an office, not the
sentence of a judge.
Even where there is room for an advocation, an intimation to the Commis-
Sioners, and all concerned, is necessary. Nor has the Court been in use to au-
thorise a meeting of any number of Commissioners, without giving to every
Commissioner in the county an opportunity of attending. In the case of Mal-
colm, and others, contra The Commissioners of Supply of Kirkcudbright, No
87. supra, the convener was appointed to call a general meeting. In two
other cases, Earl of Panmure, and others, contra The Commissioners of Supply
of Forfar, No 90. ſupra, and Duke of Gordon contra The Commission-
ers of Supply of Banff, No 379. p. 7674, the collective body of Commis-
sioners had been regularly brought into Court ; the convener was ordered to
call a general meeting ; and it was only upon his non-compliance, that the
Commissioners, or any five of their number, were, afterwards, authorised te
...”
SECT. 6. MEMBER of PARLIAMENT. II9
proceed in the business. These interlocutors were judicial intimations to all the
Commissioners; and it was their own fault if they did not attend.
But here the Lord Ordinary, de plano, and without any intimation, either to the
convener, or to the Commissioners at large, appointed a particular day and
hour for expediting the business the complainer had in view ; and authorised
any five of the Commissioners to proceed in the matter. No intimation of this
order was made, till the moment that the complainer, and a few of his friends,
whom he had called together, were going into the court-house ; of course no-
body attended, except themselves; the meeting was partial and illegal; and the
proceedings must be considered as totally null and void.
Replied ; Divisions were formerly in use to be made by any two Commission-
ers; but, as improper liberties were sometimes taken at these private meetings,
the Court found it expedient to check them; and hence the the decisions, A-
bercromby contra Lesly, and Cunningham contra Stirling.
The decision of the House of Lords, Dundas contra Wardrop, does not prove
the illegality of a meeting not intimated on a Sunday. In that question, the
proceedings laboured under other more capital defects. The meeting consisted
of only three Commissioners ; and it was called in name of one, who had
declared by letter, that he did not consider himself as vested with the office of,
COI) Weſler.
But here the case is very different. The complainer's valuation is ascertain-
ed by a full quorum of Commissioners, acting under the immediate authority
of the Court of Session; to which an appeal; by advocation, is equally com-
petent for delay of justice, as for iniquity-
Nor was there any occasion for intimating the meeting to the whole Commis-
sioners of Supply, who were not parties but judges. And, accordingly, in the
case of Forfar, no such intimation was made or required. But supposing
there had been parties interested in the cumulo, who were not called, the divi-
sion would not be void; it would have been reducible, in case they could shew
that iniquity had been committed.
Upon this point, some of the Judges thought that an opposite party ought
to have been in the field, in order to give validity to the judicial procedure.
But, as it was not alleged that the Commissioners had done any wrong, and as
they had precisely followed the mode, pointed out by the Lord Ordinary, the
Court repelled the objection.
With regard to the second objection, pleaded; The clause in the act of Queen
Anne referred to, is virtually repealed by the act of the 16th of George II.
This last statute enacts, “That no singular successor shall be enrolled, till he
• be publicly infeft, and his sasine registered one year before the enrollment.”
By it, the right of being enrolled necessarily implies the right of voting. The
roll of freeholders is, in the language of the legislature, the roll of electors;
and, setting aside personal disqualifications, every person upon the roll is entitled
to vote at an election. Agreeably to this doctrine, the Court determined a si-
No 95.
I 2C) MEMBER of PARLIAMENT. IDIv. III.
No 95.
No 96.
milar case, 17th January 1755, Buchanan of Carbeth contra Cunningham of
Ballindalloch, infra.
Answered; As the act of the 16th of Geo. II. expressly repeals one part, (viz.
§ 4.) of the 12th of the Queen, it is presumeable that, if the legislature had
meant to repeal any other clause of this statute, it would have done so in terms
equally explicit. It is, no doubt, a maxim of universal law, that lege; posteri-
riores priores contrarias abrogant. But a direct repugnancy, or inconsistency,
is necessary to the application of this maxim ; and, where both enactments can
subsist, a repeal of the former is not to be presumed; Blackstone, Introduction,
§ 3. The act of George II. does not say, that every singular successor, whose
Sasine has been registrated a complete year, shall be enrolled. Its aim was to
limit the right of singular successors in a particular respect; and it is not from
thence to be inferred, that another limitation, imposed by a former statute, was
Imeant to be removed. The two statutes are directed to different objects. The
first was intended to prevent an improper multiplication of votes at an elec-
tion ; the last to obviate a similar abuse at the ordinary meetings of the free-
holders. Both of them have their use; and they are in no shape derogatory
from one another.
Upon this point, it was obſerved on the Bench, that a jugdment so long ac-
quiesced in, as that in the case of Buchanan contra Cunningham, was not now
to be overturned. wº
THE Court, therefore, found the freeholders did wrong in refusing to ad-
mit the complainer upon the roll; and ordered him to be enrolled accordingly;
to which judgmennt they adhered, upon advising a reclaiming petition and
# Il SWCFS,
Lord-Odinary, Covington. Act. G. Ferguson et Ilay Campbell. Alt. Wight et Crosbie.
L. Fol. Dic. v. 3. p. 4II. Fac. Col. No 3. p. 3.
*** The like judgment was given, eodem die, in the case of Sir Walter Mont-
gomery-Cunningham, who had obtained a division of his valuation before a si-
milar meeting of the Commissioners.
S E. C. T. VII.
Where the Proprietor has alienated a part of his estate.
.*
1766. January 17. M'LEOD of Cadboll against Sir John Gospos,
MLeod of Cadboll stood enrolled on his whole estate valued in the books of
supply at L. 1361 : Ios. In the view of creating freehold qualifications, he ob.
SECT. 7. MEMBER or PARLIAMENT. I 2 I
tained a division of this cumulo valuation, and granted a feu of the whole to se-
parate the superiority from the property. He then obtained a charter on his
own resignation, and granted wadsets of the superiority to some, and convey-
onces of different parts in liferent to others, and to himself in fee, the lands of
which he retained the fee appearing from the division to be valued at
L. 532 : 6:4. The freeholders struck him off the roll, in respect of this altera-
tion of his circumstances; but the LoRDs ordered him to be re-placed. See
APPENDIx. -
Fol. Dic. v. 3. p. 412.
-mºm-
1781. january 17. * -
Sir John Scott of Ancrum, Bart. and PATRick KER of Abbotrule, Esq;
against Sir GILBERT ELLIOT of Minto, Bart.
SIR GILBERT ELLIOT, as heir apparent to his father, was enrolled a freeholder
in the county of Roxburgh, in 1777, and was then chosen Member in his fa-
ther's place. He at that time stood upon his whole estate, the valuation where-
of was above L. 4 ooo Scots. In expectation, however, of a contest at last ge-
neral election, when he was again a candidate, he created nine qualifications
in the usual way, and presented a claim for having his own qualification re-
stricted to one of the nine which he had reserved, when he granted a liferent
of the rest. Objections being stated and over-ruled at the meeting of freehold-
ers, which happened both to be the Michaelmas head-court and the election
day, they were brought before the Court of Session by a summary complaint.
As Sir Gilbert had still the fee of the whole estate, it was undeniable that he
might continue upon the roll in that right, whatever became of his limited
qualification, though he could not vote but in absence of the liferenters. From
the terms, however, of his claim of restriction, it was strenuously argued,
that he had in fact done what he could never rationally mean to do, viz. put it
beyond his power to continue on the roll as a fiar, in case the qualification, of
which he had also the liferent, should be set aside. Besides this argument,
which seemed to be merely an ingenious criticism upon words, the three follow-
ing objections were urged against the limited qualification.
In the first place, the decreet of division pronounced by the Commissioners
of Supply was null and void; for they had thrown together two separate cumu-
io valuations, and then made their division of the joint cumulo; whereas they
ought to have taken the separate cumuloſ as they stood, and made a separate
division upon each. The separate cumulos were Minto and Craigend; and, as
evidence of their being separate, there was produced an extract from the Ex-
chequer, of the original valuation-roll of the county, made up in 1686, by the
Commissioners, who had powers granted for that purpose by the act of conven-
No 96.
No 97.
A party split
his estate in-
to several
parcels to
create votes,
retaining one
to himself,
without ob-
tain 1.5g a new
disjunction.
As it evi-
dently ap-
pealed there
was still suf-
ficient valua-
tion left, an
objection to
his vote was
repelled.
I 2.2 MEMBER or PARLIAMENT. Div. III.
No 97.
tion 1667. Besides, in Sir Gilbert's own claim for enrollment in 1777, Craig-
end is set forth as separately valued at L. 660. The Commissioners had, there-
fore, in fact, taken upon them to make a re-valuation, which was certainly be-
yond their powers; and what made the matter worse was, that by this mode of
procedure, they had lessened the original valuation of Craigend, by at least L. 238,
and encreased proportionally that of Minto, upon part of which the qualifica-
tion was reserved. - - * -
In the ſecond place, Sir Gilbert, since the decreet of division, supposing it
to be effectual, had disponed a part of his own retained qualification, without
having a second division; so that he stood enrolled upon part of an undivided
cumulo, which could never be a legal qualification. By the account given in
his own claim, the whole retained qualification was over lands, the real value of
which was L. 157 Sterling, of which no less than the worth of L. 44 Sterling
had been disponed ; and, though it was alleged that sufficient evidence was laid .
before the freeholders, to convince them, that, after making an allowance for
the valuation of the part disponed, there still remained above L. 4oo of valua-
tion; yet this was supposing a power in the freeholders, which is only vested in
the Commissioners of Supply; and if, in the smallest instance, the freeholders
might, by a calculation of arithmetic, proportion the valued rent to the real
rent, why not in every instance, and so supersede the work of the Commis-
sicners altogether. - -
In the laſt place, the feu-duties of the lands retained by Sir Gilbert Elliot,
are not separate from the feu-duties of those disponed away; so that he has
Ineither a distinct property nor possession of the subject of his qualification;
both which are requisite by law, and without which, it is impossible safely to
take the oath of possession, required by act 7th Geo. II, c. 16. -
To the firſt objection, it was anſwered; 'That the decreet of division pro-
ceeded upon the oldest valuation-roll in the county which was extant, or any
way authentic, viz. one regularly subscribed by five Commissioners in I707, and
afterwards confirmed by one in 1742. As to the roll, of which a copy is in
the Exchequer, it is not so much as known in the county; nor does there ap-
pear the least evidence that it was really a re-valuation, as is supposed, in con-
sequence of the act of convention 1667. If the oldest rolls were to be most
regarded, there is a copy of one in 1643, which was probably the original from
which the roll 1680 was taken ; and from this one part of the objection is re-
moved eoncerning the valuation of Craigend; for in it the article of L.660 in-
cludes both Craigend and Deanfoot, and, in the last division, these two toge-
ther make L. 855; so that Minto, instead of having too great a valuation, has
too little, according to these old rolls. The case of Mr Elphinston No 53.
supra, was quoted, to show that the ordinary valuation-roll, standing upon
the land-tax books, was the proper rule in all sub-divisions, where no older or
more correct roll was known at the time, though perhaps such a roll really ex-
isted. In that case, the Court of Session found otherwise; but their judge-
SECT. 7.
MEMBER or PARLIAMENT. I23
ment was reversed by the House of Lords. With respect to the argument
founded on Sir Gilbert's claim in 1777, that claim itself was erroneous. It was
drawn by the man of business in Edinburgh, who, not knowing the valuation
of the lands, naturally went to the Exchequer, and was misled by the copy of
the roll 168o.
To the second objection, it was anſwered ; That, before the meeting of free-
holders, the whole disponed lands, excepting a very small parcel, amounting
poned, without any infeftment having been executed in fa-
vour of the disponee. But further, supposing the matter to be as it was before
the re-disposition, yet the valuation of each parcel disponed or retained was
fully ascertained from the very face of the Commissioner's decreet of division.
For that decreet does not only mention the sum of the lot, with the correspon-
dent valuation, thus, Lot 1st, real rent L. 157, valued rent L. 572 : I : 4, but it
previously states the real rent of each article, whereof the lot is composed;
Thus, Lamblairs and Plantations, real rent, L. 4; Cowpark, L. 12; Kipp's-
park and inclosure, L. 28, &c.; so that, though the valued rent is only appor-
tioned to the whole lot, yet that is not properly a cumulo, but only the different
valuations of each particular summed up together; and ineft in the nature and
terms of the operation, that each particular, having a certain sum of real rent,
must have a respective sum of valued rent. The freeholders cannot, indeed,
divide valuations, but they have eyes to read, and sense to understand, a decree
of division when produced; and it would have been quite ridiculous to call a
meeting of Commissioners to perform an operation in the Rule of Three, when
this could be done by any person acquainted with the rudiments of arithmetic,
from data in the decreet itself. The case of Sir George Suttie in 1768 was si-
milar to the present *. He had sold 98 acres of his estate without getting his
valuation disjoined ; and the same objection, as in this case, was started on his
election day. The answer made and sustained was, that his cumulo amounted
to L. 1761 : II : 2 Scots, so that the freeholders could not but be convinced that
such a small alienation would still leave more than L. 4do. * '.
To the third objection, anſwered ; That it proceeds entirely on a mistake;
for it supposes Sir Gilbert to have merely a superiority qualification, whereas he
hath both the dominium utile and dominium directum of his reserved qualification,
and he neither pays nor receives feu-duty for any part of it.
“ THE LORDs, having advised the petition, answers, replies, and duplies, re-
pelled the objections, and dismissed the complaint.” ** *
to L. 4, were re-dis
Act. D. Rae & H. Erskine. Alt. Ilay Campbell.
D. Fol. Dic. v. 2. p. 412, Fac. Col. No I.4, p. 25.
* See APPENDIx.
Q_2
No 97.
124 MEMBER of PARLIAMENT. Div. IV.
No 98.
Vassals of a
forfeited
eSi at 6 are
entitled to be
on the roll of
freeholders,
so long as the
superiority is
nºt dispº 33d
of.
DIVISION IV.
Decisions common to qualifications upon the old extent
and valuation.
S E C T. I.
Vassals in lands forfeited by the superior.—Fishings may be joined to
lands to complete a qualification.—Proprietor pro indiviso.-Feu-du-
ties payable out of church-lands.-Mortified lands sold.—To give
a qualification there must be a feudal vassal in the lands.—Bodies
corporate. —Minors.--Exchange of pieces of land.—Infeftment in
virtue of a clause of union, and dispensation in a Crown charter.—
Burgage lands sold by the burgh.-Where the superior is unentered.
—Person divested by a trust-deed.—The claim must describe the
title for enrolment.—Eldest sons of Peers.-Charter granted by a
factor loco tutoris.—Roman Catholics.—Officers of the Revenue,
1745. February 12.
LoRD BRAco againſt The VASSALS of the Estate of Marischall.
A complaiNT was given in, craving to have Gordon of Buthlaw, Gordon of
Techmuiry, and Farquhar of Balmuir, struck off the roll of freeholders of the
shire of Aberdeen, as being vassals of the forfeited estate of Marischall, the
superiorities belonging to which, were, by an act George H. vested in the King,
for the use of the public ; in which case they remained till 25th March I718,
that they were vested in trustees to be sold for the use of the public, and what
remained unsold on the 24th June 1724, were again vested in the King, to be
sold by the Barons of Exchcquer.
Pleaded ; That the allowing these gentlemen, votes proceeded on the not
distinguishing the different capacities the King sustained, and in what capa-
city they held their lands of him, which was not as King, but as trustee for
the public; so that though they held of the King, they could not be said to
hold of the Crown; that the distinguishing mark of holding of the Crown, was,
SECT. r. MEMBER of PARLIAMENT. - I25
that the King could not interpose a superior between him and his vassal, and
not his giving the infeftments; for in many cases he gave these to others than
his vassals, viz. supplendo viceſ.
Anſwered; That they behoved either to hold of the King or a subject; that
the Earl Marischall's right was extinct by his forfeiture, and they were obliged
to do all the services of vassals to the King ; that it was a groundless distinc-
tion of holding of the King for the use of the public; and it might rather be
said, all the King's rights were for the use of the public, though in some cases
the trust was freer, in others he was more tied up ; and a parallel instance
occurred in those branches of the revenue, which were to be accounted for in
Parliament; and yet the debtors in them were as much the King's debtors as
where he had the absolute disposal; that the meaning of these estates being in
the King for the use of the public, was explained by the first act relating to
them, to wit, that the profits and proceeds thereof were to be disposed and
applied to the use and benefit of the public, and for the ease of his Majesty's
good subjects, according to the direction of Parliament; but this had no in-
fluence on the holding.
It was observed on the Bench; That the vassals of regalities fallen into the
King's hands for a time, were to be justified by his Judges, and attend his Par-
liaments, act 26th, Parl. 6. Ja. II.
THE LORDs sustained the qualifications to continue on the roll.
Act. H. Home. Alt. Maitland.
Fol. Dic. v. 3. p. 413. D. Falconer, v. 1. p. 73.
—amºśrº- -
3745. july IO. •. ºr - -* * * * * * * * * *
FREEHOLDERs of ABERDEENSHIRE againſt FoRDYCE of Monkshill.
WILLIAM For Dyce of Monkshill stood upon the roll of freeholders for the
county of Aberdeen, as being infeft in the town and lands of Monkshill,
valued at L. 8o Scots, and in two half-nets salmon-fishing, valued at L. 347,
the whole extending to L 472.
Objected to his title; That the act 1631 restricts the title to a vote to lands
of 40s. old extent, or L. 4co valued rent; and the claimant has not lands to
that extent or value, nor any lands contiguous to his salmon-fishing, but only
a right of factuſ retir. -
It cannot be said every heritable right is comprehended under the term
lands, nor yet every subject liable to the land-tax, as in England personal
estates and offices are subject thereto, and with us feu-duties and teinds; feu-
duties out of church-lands would not entitle the owner to be on the roll; and,
the late decision concerning teiads, was in the case of a person having bought
No 98.
No 99.
Lands, with
the valuation
of a fishing,
making up
together the
full valuation,
entitle to .
VOte,
I 26 - MEMBER or PARLIAMENT. * Div. IV.
No 99.
No roo.
Found in con-
formity with
the above.
in his owfi teinds, by which the disburthened property came to be of greater
value. See Div. 3. Sec. 1. - - - -
The payment of cess had originally nothing to do with the right of voting,
Thaving begun in the time of the troubles in the reign of King Cha. I. and at
first not only teinds and fishings, but coal-works and salt-works, and all the
customs and casualties of lands, and, by act of convention 1667, annualrents
and tack-duties were taxed. -
The persons who sat in Parliament were such as held lands of the Crown,
which maintained tenants fit for military service, and not fishings.
Answered ; The late statute having made no alteration concerning the sub-
jects on which a man is entitled to be a voter, the question is determined by
the practice of the nation ever since the act I681, which has been to sustain
the titles of all proprietors liable to public burdens for L.400. - -
In the language of the law, lands comprehend all heritable subjects, wherein
a man is infeft, as in the law of death-bed. But by the act of supply, as ordi-
narily past, no person can act as a commissioner unless he have lands to the
amount of L. 20 per annum; and the act 12th Anne, concerning elections, says,
whereas several conveyanees of lands have been made for elusory sums not
equal to the value of the estates, using these words as synonimous. -
A gentleman who holds a fishing is as properly a freeholder as he who holds
a farm, and fishers as fit for military service as tenants.
THE LORDs sustained the title.
Reporter, Lord justice-Clerk. Act. Burnet. Alt. Ha. Gordºn.
s Fol. Dic. v. 3. p. 415. D. Falconer, v. I. p. 118.
*** See No.68. ſupra.
•-mº ºm-
1745. july 10. -
FREEHOLDERS of DUMBARTONSHIRE againſt CAMPBELL of Succoth.
MR John CAMPBELL, younger of Succoth, advocate, a freeholder of Dum-
bartonshire, was infeft in the fishing infra bondar lie Crookedshot, extended to
two merks tempore pacif, which, joined with his two merk land of Succoth,
made up an extent of four merks; but here this difference occurred betwixt
this case and the former, in favour of the claimer, that he was possest of lands
adjacent to the fishing, and to which it belonged.
THE LORDs sustained the title. . .
Reporter, Lord Kilkerran. -
Fol. Dic. v. 3. p. 415. D. Falconer, v. 1, p. 119.
SECT. I. MEMBER or PARLIAMENT. 127
*-
I745. July 30. ! -
The FREEHOLDERS of INVERNESS-SHIRE againſt The VASSALs of the Estate of
Ross. º
AN objection was made to the titles of these gentlemen to stand on the roll
of electors for the county of Inverness; that, by act 71st, Parl. 9. Ja. III, the
Earldom of Ross, which had been forfeited, was appointed to be a provision for
the King's second son, which was confirmed by act 30th, Parl. 11. Ja. VI.
Anſwered; The first act only statuted, “That, notwithstanding the annexation
“ thereby made, it should be in the Kings' power to give the estate of Ross to.
‘ any of their second sons.’ And the second act, which was more indistinct,
referred to the first. - - \
The Earldom of Ross was accordingly given to the second son of James III.
with a clause of return failing his issue, in virtue whereof it had returned; but,
according to the sense put upon the statutes by the objectors, this estate behov-
ed, on the death of a King, to shift out of the person of his second son into that
of the second son of the Prince then succeeding to be King.
Replied; By the style of our acts of Parliament, when it is statuted to be law-
ful or leisom to the King to grant any right, this gives a right to the party to
have such a grant. By the act 1592, concerning mines and metals, it is statuted
to be leisom to the King to make grants thereof, and it has been found, that, by
this statute, the heritors have right. -
THE LORDS repelled the objection.
Act. R. Craigie. ¥lt Lockhart.
Fol. Dic. v. 3. p. 413. D. Falconer, v. 1. p. 126.
*
1747. November 10. . *
KERR of Moriston, and other Freeholders of Berwickshire against PRIMRose
A PERSON enrolled by the freeholders as heir apparent to the eldest of three
heirs-portioners, was, on a complaint, ordered to be expunged; though it was
argued, that the first adjudger is entitled to vote, so the eldest heir-portioner
should have the right of the vote, which, though she cannot exercise herself, .
might accrue to her husband or her son. --- - -
- Fol. Dic. v. 3. p. 415. Kilkerran. D. Falconer, .
*** This case is No 17. -ſupra,
No 1 or,
No Ioa.

128 MEMBER or PARLIAMENT. Div. IV.
No I og.
Feu-duties of
church-lands,
the vassals of
which hold
of the Crown,
afford no qua-
lification.
infeftment can pass.
1755. january 17.
CAMPBELL of Monzie against FREEHoLDERS of the County of STIRLING.
THE abbacy of Cambuskenneth, containing the feu-duties payable by the
vassals of Bothkennar, being, after the Reformation, erected into a temporal
lordship in favour of the Earl of Mar, a parcel of these feu-duties came by pro-
gress into the person of Campbell of Monzie; and as the lands, out of which
his feu-duties were payable, were valued above L. 4oo Scots, he insisted upon
this right as a sufficient qualification to entitle him to a vote. In answer to
this claim, it was prejuised, that all superiorities of church-lands are now in the
Crown; that the vassals hold their lands immediately of the Crown; and con-
sequently, that the lords of erection, who have right to the feu-duties, have no
other ground to take up, but that of being assignees from the Crown to the
feu-duties. Hence it was objected, That a right to such feu-duties is no quali-
fication. No man upon the act 1681 can have a qualification, unless he be
infeft either in property or superiority. The lord of erection or his assignee
having right to the feu-duties, is infeft in neither. A feu-duty is not a subject
of feudal holding; it is only the reddendo of a feudal holding. The King is
superior of the lands out of which these feu-duties are payable; and qua Supe-
rior, he would be entitled to these feu-duties, were they not by act of Parlia-
ment separated from the superiority, and bestowed upon a third party, who
has thereby the precise same right that an assignee to feu-duties would have.
Monzie therefore cannot qualify that he is vassal to the Crown in these feu-
duties; for, in effect, he is assignee only. Neither can he qualify that he holds
these feu-duties as a superiority ; because the vassals who pay these feu-duties
are not vassals to him, but to the Crown.
THE LORDs sustained the objection ; and found, that feu-duties of church
lands reserved to the lords of erection afford no qualification for a vote.
N. B. The feu-duties reserved to the lords of erection have been in use to be
conveyed by infeftment ; with this difference only, that whereas the original
erection of church lands into a temporal lordship was completed by taking in-
feſtment in the lands to be held of the Crown, infeftment was now taken in
the feu-duties in place of the lands, and the symbol altered from earth and
stone to a penny money, as in an annualrent right. This practice, which has
been influenced by the reliance upon an infeftment, as of all the most secure
form, is irregular, and I may say absurd, for the reason above given, that
feu-duties are not a feudal subject that can be held of a superior, or upon which
Fol. Dic. v. 3. p. 414. Sel. Dec. No 77. p. 102.
*** See No 52. ſupra. -
- * tº º • - - *
*** A decision similar to the above was pronounced, Buchanan against Free-
holders of Stirlingshire, Sec. 5. of this Division.
SECT. r. . MEMBER of PARLIAMENT. - . iso
1755. March 4. DALRYMPLE, &c. against REID. -
- * . - - No 104.
LANDs mortified to a college, and afterwards alienated, give a qualification;
and it is no objection, even upon the act 1681, that they hold neither ward,
feu, nor blench ; for, besides temporal lands of those different tenures, that
statute expressly mentions church-lands; and mortified lands fall under that
very predicament. Much less can any difficulty arise from the 16th Geo. II.
which specifies no particular tenure, but bears in general ‘lands holden of the
King or Prince.” -
- Fol. Dic. v. 3. p. 4I4.
*** This case is No. 33, ſupra,
… —-mºm- tº - — - ? •
1759. . ELLIOT against SHAw and OLIVER,
Found, that a disposition of lands, containing an assignation to the charter, No IoS,
but reserving the property to the granter, with infeftment thereon, is not a .
proper title for enrolment; for a reservation of this kind does not constitute the
grantee vassal to the granter—See APPENDIx.—See Bald against Buchannan,
8th March 1786, voce SUPERIOR AND VASSAL. - -
A.
Fol. Dic. v. 3. p. 426. -
—-mºsºm-
#760. March 6. . -
Sir Michael Stewart against The Borough of Pºisºry. No 1 oë.
THE town of Paisley was first erected in 1488, into a borough of barony, in º:
favour of the abbot of Paisley, and was by him disponed to the Bailies and * º:
Town Council, to be holden of the abbot. Afterwards, in 1658, William Lord holders.
Cochran, the lord of erection of the abbey of Paisley, resigned the superiority
of this borough, in favour of the Magistrates, Town Council, and community,
to be holden of the Crown; upon which a charter under the Great Seal and in-
£eftment were expeded. .' - -
The lands belonging to the borough, and which were thus made to hold of
the Crown, were rated in the cess-books at L. 1078 : 6: 8d Scots, of valued rent;
and, among other public burdens, they were in use anciently to pay their share
of the charges appoined by act 35th, Parl. 1661, to be furnished to the Commis- -
sioners elected to serve in Parliament for the shire. - ,-
In virtue of this freehold, the borough of Paisley stood on the roll of free-
holders of the county of Renfrew for a long tract of years, and was in the re-
gular use of sending a delegate to the meetings of freeholders, who was always
T
I 3o MEMBER or PARLIAMENT. Div. Iv.
No 106.
admitted as a constituent member, and voted in all questions at election or Mi-
chaelmas meetings.
In the year 1743, a complaint was lodged against the town of Paisley, in terms
of the act of the 16th of his late Majesty, for having that borough struck off
the roll; but this complaint was dismissed upon an informality, without entering
into the merits of the question.—At the general election in 1754, the Magis-
trates of Paisley made choice of William Caldwall for their delegate; who was
present, and voted at said election. At Michaelmas 1759, a new delegate, viz.
Bailie Robert Fulton, was received, and voted as a constituent member of the
meeting.—But Sir Michael Stewart, one of the freeholders, complained to the
Court of Session within four months after that meeting, in terms of the above
statute, and insisted, that the delegate of the borough of Paisley had no right to
stand upon the roll of freeholders. -
Argued by the complainer, The privilege claimed by this borough is of a
most uncommon nature, enjoyed by no other borough in Scotland, and directly
opposite to the whole spirit and intendment of the election laws. The magis-
trates and council are but the representasives of the borough. The town's pro-
perty does not vest in them, but in the community or body-politie; and the de-
legate by them chosen is a subordinate representative of the borough-It is cer-
tain, that no other freeholder can be admitted to act by proxy or delegation;
and it does not occur how this should be competent to a corporation. The dele-
gate is clearly excluded by the statute - I681, which enacts, “ That none shall
vote in the election of commissioners for shires, but those who shall be publicly -
infeft, in property or superiority, and in possession, of a forty-shilling land,’ &c.
Every requsite of the statute is wanting to this pretended elector—Neither can
he take the oath of possession, which must be sworn in the identical words pre-
scribed by the act of the 7th of the King, viz. ' That the lands and estate of
- for which I claim a right to vote, &c. is actually in my possession,
and do really and truly belong to me, and is my own proper estate, and is not
conveyed to me in trust, or for or in behalf of any other person whatso-
ever,’ &c. - - -
Further, it is a general rule, that no person is entitled to a voice in the elec-
tion of a commissioner to Parliament, but who is equally entitled to be elected 3
and, as a body-corporate is incapable of the one, it cannot be entitled to the
other. - -
In short, every paragraph of the statutes regarding elections seem to dis.
charge this anomalous right. These statutes speak all along of freeholders, or
of persons, which are used as synonymous terms, and seem plainly to exclude:
bodies politic or incorporate, which never were intended to be, and no where
are invested with this privilege ; nay, the statutes go still farther, and expressly
declare, that bodies politic or incorporate are disabled to vote in elections. By
the act 16th of the King, it is declared, “That where lands are holden of the
Sect. 2. MEMBER or PARLIAMENT. i 31
King or Prince, by a peer, or other person, or body politic or incorporate, who
by law are disabled to be a Member of the House of Commons, or to vote in
such elections, in such cases the proprietor, and not the superior, shall be en-
titled to vote.” It is true, this clause is inserted in that part of the Statute which
respects the county of Sutherland; but it is plain, that the words are general,
and declaratory of the common law, and are added as a general description of
peers and bodies politic, that by law are disabled to be Members of the House
of Commons, or to vote in such elections.
Anſwered, The Magistrates and Town Council of Paisley are infeft and in
possession of an unquestionable freehold estate in this county, greatly above
the valuation required by law, and they have been in the constant use and
possession of voting by a delegate in all meetings of freeholders, and at all
election-meetings, for near 100 years past. By act 35th, Parl. I 661, it is pro-
vided, “That besides all heritors who hold a forty-shilling land of the King
in capite, that also all heritors, liferenters, and wadsetters, holding of the King,
and others who held their lands formerly of the bishops or abbots, and hold of
the King, and whose yearly rent doth amount to ten chalders of victual, or
L. Ioco, all feu-duties being deducted, shall be, and are capable to vote in
the election of Commissioners of Parliament.” Soon after the date of this
statute, the borough of Paisley came to hold their lands of the King, in place
of the abbot, and lord of erection; and as their yearly rent exceeded L. Icoo,
so, according to the understanding of the law at that time, they were admitt-
ed by a delegate among the freeholders of the county, and have continued to
enjoy that privilege ever since. The act 21st, Parl. 1681, extends the Privi-
lege of voting a little further, by requiring only L. 4oo of valued rent to qua-
lify a freeholder; but there is nothing contained in this, or any posterior act,
which prohibits the borough of Paisley from voting by their delegate.
The respondents believe, they are not the only incorporation possessed of a
freehold estate, which, by the practice of Scotland, has been admitted to vote
amongst the other vassals of the Crown, at the meetings of freeholders. One
instance of this kind appears to have been contested and decided in the Parlia-
ment of Scotland on the 6th of August 1681, in the case of the double election
of the Lairds of Keir and Airth, as Commissioners for the shire of Stirling ;
where the Parliament found, That the Master of Trinity Hospital in Stirling,
who was infeft in lands mortified to the Hospital, of the valuation required by
law, had a good title to vote. The decision stands on record in the following
words: “Resolved, That a master of an hospital, having lands mortified there-
to, holden of the King, being forty shilling land, or ten chalder of victual,
6. being kirk-lands holden of the King, wherein the Master is infeft, may have
a vote in the election of Commissioners to Parliament.' And to come still
nearer to the present case, it appears from the records of the Scots Parliament,
that the title of this very borough to vote by their delegate in the election of a
Commissioner to Parliament, was formerly called in question in the year I 793,
R 2
No Icó.
I32 MEMBER or PARLIAMENT. DIV. IV.
No Ioč.
on occasion of a controverted election for the shire of Renfrew; but their vote.
was sustained by a resolution of Parliament upon the 14th May, said year. The
minute of Parliament, in so far as it regards that question, is in the following.
words: ‘Item, The objection against the Town of Paisley, (That being a bo-
‘ rough of barony, howbeit infeft, and in possession of a freehold, yet, since no
‘ burgess could be a delegate for that end, therefore the incorporation could
have no vote in the election of Barons), was considered, and the House hav-
‘ing acquiesced to sustain the vote, the objection was passed from by the party,
‘ and allowed to be withdrawn.'—The respondents are entitled to found on this
as a ref judicata in favour of the borough.
The complainer has not condescended upon any law, statute, or decision,.
which expressly condemns or excludes the right of voting in such cases by a de-
&
legate. The original plan of our constitution seems to have been, that all the
vassals of the Crown, whether sole persons or bodies politic and corporate, should.
give suit and presence in Parliament. The examples were perhaps but rare of
bodies corporate, other than royal boroughs holding lands of the Crown; but if
any such existed before the act of James I. which dispensed with the attendance
of the smaller vassals, they certainly would be obliged, as vassals of the Crown,
to give suit in Parliament by their delegates; and therefore it does not occur,
that the right of this borough to vote by their delegates, is either anomalous or
unconstitutional. It is true, the language of the election-statutes is adapted to
the common case of freeholders, entitled to vote in their own proper right; and
that there is no proviso with regard to the freehold estates belonging to bodies
corporate, which perhaps were not very common in ancient times; but the re-
spondents cannot perceive, that there is any qualification required by any sta-
tutes, which does not belong to this borough, or to the delegate who votes in its
right. And more particularly with regard to the trust-oath, the delegate can
safely swear, “That the estate under which he claims to vote, does truly belong
* to and is possessed by the borough whose delegate he is, for the borough's own
‘ use, and not in trust for any other.' It is indeed impossible, that he can take
it in the precise words prescribed by the statute; but if the right of the borough .
is not impeached by any of the preceding statutes, surely this oath required to
be taken by the other freeholders, and which, from its Conception, does not
precisely apply to bodies corporate, can never be deemed to imply a forfeiture.
of their right. - - -
Besides, whatever doubts might arise upon the abstract question, in case the
respondents were now in petitorio, they apprehend, that the above judgment of:
the Parliament of Scotland, in the year 1703, and their long possession as well
before as since that decision, must secure them in the enjoyment of that
until it be taken from them by an act of the Legislature.
Lastly, Supposing the objection to have been originally good, it is not now
competent; because, by the act of the 16th of the late King, it is provided,
: That it shall be lawful for any freeholder standing upon the roll, to object to
right; .
SECT. I. MEMBER or PARLIAMENT. iss
“ the title of any person then standing on the roll, and for that purpose to apply
“ to the Court of Session by complaint, at any time before the 1st day of De-
‘ cember 1743; and if no such complaint shall be exhibited within the time
* foresaid, then, and in that case, no freeholder who at present stands upon the
‘ rolls last made up, shall be struck off, or left out of the roll, except upon suf.
• ficient objections arising from the alteration of their rights,’ &c. And there-
fore, as the borough of Paisley stood upon the roll at the date of the above sta-
tute, and no complaint was properly made in this Court within the limited time,
such complaint is not now competent, except upon an alteration of the right or
title upon which the borough was originally enrolled. It is true, that, at the
last meeting, a new delegate was sent; but the accidental change of the person
of their delegate, was no alteration of the right or title upon which the borough
stood on the roll, nor was Bailie Fulton of new admitted and entered as a free-
holder; the roll was made up as it formerly stood, the delegate for Paisley, with-
out the adjection of any name, standing the 5th in that roll, and Bailie Fulton
only produced his commission, and was marked in the minutes as the delegate
for Paisley. -
Replied; Whatever might be the constitution of the Scots Parliament before
the Union, it is clear, from the whole strain of the election laws since that pe.
riod, that no borough or body corporate can have a right of voting as a freehold-
er in any county. As to the case of the Trinity Hospital of Stirling in 1681,
had the election laws stood as they now do, requiring both property and posses-
sion in the claimant, it is believed, that no regard could have been had to such
a qualification. Besides, the claimant himself was there infeft; whereas here
the community pretends to a privilege of acting by a delegate or proxy. And
further, this claim of the Trinity Hospital has been long dropped, and its name
does not now appear in any roll. The other decision of Parliament, anno 1703,
in the case of this borough of Paisley, is far from being conclusive; for the
words of the minute shew, that notwithstanding the objection was passed from
by the party, yet the Parliament had difficulties upon it, though, at the last,
they allowed the objection to be withdrawn, and acquiesced to sustain the vote.
Besides, though that decision were in point, yet it would fall now inevitably to
be altered, in consequence of the act. 7th of his late Majesty, requiring property
and possession, and an oath to be taken to that purpose by the claimant. Nei-
ther can the respondents find any protection from the act 16to of the late King;
which ordains, that no freeholder then on the roll shall be struck off, unless
complained of before the 1st December 1743. The evident purpose of that sta-
tute was not to fix unalterably the qualification of voters, but to free the persons
admitted on the roll from challenge, during their own lives, where no complaint
was exhibited within the time appointed. Once in a life the qualification itself
does certainly become liable to challenge. Upon this plan the whole of the
statute proceeds; every sentence of it relates evidently to an enrolment of per-
sons, and not of rights or titles. The Legislature had no idea of so absurd a thing .
No I oé.
134 MEMBER or PARLIAMENT. Div. Iv.
No 1 oG.
†No 107.
No Io9.
No Io9.
Infeftment
taken in vir-
tue of a clause
of union and
dispensation
in a Crown
charter.—See
Skene against
Ogilvie, and
as bodies corporate standing on the roll of freeholders of any county, and so made
no provision with regard to them. The directions of the statute, therefore, can-
not apply to them; the remedy is left to the common law, by which every free-
holder has a proper right and interest, to have every voter, not properly quali-
fied, removed from among them. Besides, supposing the statute did apply,
there seems to be much the same alteration, when one delegate is chosen from
a borough in place of another, as when a predecessor dies, and the heir craves
to be inrolled in his place. - w.
“THE LORDs sustained the objections to the vote of the Town of Paisley,
and found, That the delegate of that borough had no right to stand upon the
roll of freeholders of the shire of Renfrew, and ordained him to be expunged
therefrom.” - - -
Act, Wa. Stewart, john Craigie, and Lockhart. Alt. Milºr. Clerk, Tait.
j. C. Fol. Dic. v. 3. p. 422. Fac. Col. No 219, p. 399.
-º-º-ºm-
1765. December. M'LEOD of Cadbole against GoRDON of Newhall.
WILLIAM GoRDON of Newhall, a minor, but within a few months of twenty-
one years of age, was enrolled by the freeholders of Cromarty, with a proviso,
that he should not be entitled to vote till his majority. Upon a complaint, he
was ordered to be expunged, though he had become of age before the complaint
was determined.——See APPENDIX.
- Fol. Dic. v. 3. p. 422.
——ººm--—
1768. • * SKENE of Skene against GRAHAME of Flemington.
A PROPRIEToR had given in excambion forty acres of land to his neighbouring
heritor; but, as he had received another piece of land in exchange, it was held
that the transaction made no variation on his valued rent.—See APPENDIx.
Fol. Dic. v. 3. p. 415.
1771. February I4. __* # -
Captain Basil. HERON against JoHN SYME of Meikle Culloch.
At the Michaelmas meeting for the stewartry of Kirkcudbright, in October
1770, Captain Heron claimed to be enrolled a freeholder upon titles, part of
which consisted of a special retour, by which the lands of Drumnaught and
Glengormane were retoured to a thirty shilling land, and the lands of Torquin-
noch to a ten shilling land, making together a forty shilling land of old extent.
SECT. 1. MEMBER of PARLIAMENT. I 55
To these titles, it was objected by Mr Syme, that though the charter founded
on by Captain Heron contained a clause of dispensation to Mr Home, in whose
favour it was granted, for taking infeftment upon the lands of Little Park, or
upon any other part of the lands thereby disponed, yet that privilege was per-
sonal to Mr Home, or at least could only go alongst with the whole lands, if he
had disponed them to one person. By parcelling them out to different persons,
he had broken the union created by the charter; so that he could not convey
the benefit of the dispensation to apply to every person to whom he might dis-
pone; and as the disposition from Mr Home to Captain Heron did not convey
that benefit, and as it appeared that infeftment had been taken only upon the
lands of Torquinnoch, he was not infeft in the whole lands upon which he claim-
ed to be enrolled.
The freeholders having refused to enrol, Captain Heron, in a reclaiming pe-
tition, maintained, -
It was an adjudged point, as to lands in a Crown charter, containing a clause
of union, and declaring infeftment to be taken at a principal messuage, or upon
any other part of the lands, that infeftment thereof, provided it was taken in
virtue of the precept contained in the charter, was good for the whole, however
discontiguous, and notwithstanding they had been conveyed to different persons.
This point was decided in a question from the county of Forfar in 1768, Spence
contra Skene, where the Court had sustained the objection, but the House of
Lords had reversed the judgment. Thirteen cases from the county of Forfar,
besides several from the county of Linlithgow, had been decided the same way 3
so that the question was at rest.—(See Sect. 5. of this Division.)
The principle upon which this doctrine rested was unquestionable. It could
not be denied that the Crown had full powers to unite tenements lying disconti-
guous; so that infeftment taken upon one should be sufficient for the other,
though at any distance. Upon the same principle could the Crown authorise
an infeftment to be taken upon any part of the Crown's property, the whole
falling to be considered as an united tenement in the Crown, who authorised it;
and infeftments so taken occurred frequently in practice. There was no distinc-
tion betwixt the case from Forfar and the present. The clause of dispensation
evidently gave a power of taking more than one sasine; it gave authority to
take “unica sarina nunc et in omni tempore futuro ;' and it gave this power not
only to the person in whose favour the charter was granted, but ‘ejuſ.g. pradict.”
that is to say, baredibus et asſignatir; and hence, though infeftment had ac-
tually been taken by the grantee, his heirs would have been entitled, without
any new charter, but upon a special service, to take another sasine by virtue of
the clause of dispensation. -- -
Mr Syme answered ;
The general rule as to the feudal investiture was, that there must be real or
symbolical delivery of the lands super fundum terrarum ; and where lands were
discontiguous, the infeftment must be taken upon the several tenements. As .
No Io9.
Dundağ a-
gainst Free-
holders of
Linlithgow,
Sect. 5, of this
Division.
I 36 MEMBER OF PARLIAMENT. Div. IV.
No Io9.
this general rule might be dispensed with by the royal prerogative, such dis-
pensation might be more or less comprehensive, according as the Sovereign or
the Barons of the Exchequer should sée cause. It might be so limited as to be
personal to the granter; it might be allowed to be taken at one particular place
only, or upon any part of the lands; or it might authorize one general infeft-
ment only, in either of the ways mentioned, for the whole lands.
In every case of this nature, the tenor of the dispensation and precept of Sa-
sine must be carefully attended to as the rule of judgment. By the tenor of the .
dispensing clause, in the present instance, bearing, “...ºuod unica Farina per pre-
‘ fat. G. Home, ejuſque praedict.’ no more was authorized than one infeftment
on any part of the lands for the whole, in favour of George Home himself, or
of any other person to whom he might dispone the lands, with the benefit of the
dispensation; but a dispensation so qualified did not authorize twenty different
infeftments upon as many different fractions of the lands disponed. The pre-
cept, in this case, authorized delivery of sasine ‘ Praefato G. Home vel suo cer-
‘ to auctonato, latori presentium tot. et integ. et secundum formam et tenorem
‘ antedictae cartae, precisely corresponding to the limited construction contend-
ed for ; so that this infeftment, not having been taken in the form and manner
prescribed by, but disconform to the warrant, was on that account null and
void. * *
The decision from the county of Forfar could not be regarded as fixing any
rule applicable to the present case. The clause of union and dispensation was
very different. In the Forfar case, the dispensation granted was not limited to
the infeftment to be taken in execution of the precept in the charter, but was to
continue in force, and operate omni tempore futuro. It differed from the clause
of union and dispensation in George Home's charter in this other respect, that
as the one authorised one infeftment only to be taken for the whole upon any
part of the lands, the other authorised the renewal of the infeftment omni tem-
pore futuro, by taking it upon any part; and declared it sufficient, not only for
the whole lands, but for any part of them. In the Forfar case also, there was
no absolute alienation of the united lands, but grants of liferent merely, which
were but temporary burdens upon the property. { • . t
It was observed upon the Bench, That, in questions of this nature, they were
tied down by the judgment of the House of Lords in the cases from Forfar re-
ferred to ; and hence it was found, that the freeholders had done wrong in re-
fusing to admit Captain Heron upon the roll, and he was ordained to be enroll-
ed accordingly. -' -
The same judgment was given in the complaint of Edward Maxwell contra
Syme. - - º: .
For Heron, A. Fergusson, Crosbie. For Syme, Lockhart.
THE same day the Court decided a complaint brought by Copland of Collie-
ston contra John Busby, who, at the Michaelmas meeting, had Stated as an ob-
Sier, 1. MEMBER of PARLIAMENT. 137
jection to Copland's titles, that the pages of his sasine were not numbered in
terms of the act of sederunt 1756, the first page being omitted. The freehold-
ers had sustained the objection, but the Court overruled it, and ordained the
complainer to be added to the roll.
For Copland, cruti. For Busby, Wight.
R. H. Fac. Col. No 76, p. 219.
—-mºſ - Rººm
1777. june 17. Sir RoBERT ABERGROMBY againſt ALEwood.
It is not uncommon for royal burghs to alienate parts of their burgage lands,
to be held of themselves. But even although, after doing so, they wereºby
connivance, to convey the superiority to a purchaser, so as to make way for his
obtaining a charter from the Crown, that would not confer upon him a right to.
vote, or entitle him to be enrolled as a freeholder. The lands still remain truly
burgage, and their owners are represented by the member for the burgh.——See -
APPENDIX.
Fol. Dic. v. 3. p. 4I4.
—-
1780. EARL FIFE and Sir JAMEs DUFF against Sir John SINCLAIR.
ALEXANDER BRODIE of Brodie, superior of Wester Brims, belonging in pro-
perty to the Earl of Caithness, having died in 1759, his heir finding the estate
encumberet, declined making up titles till 1773, when he obtained a Crown
charter, and conveyed the superiority to Earl Fife, who transferred it to Sir
James Duff, in liferent, and to the Earl himself, in fee. In the mean time, Sir
John Sinclair of Murkle, to whom the property devolved on the Earl of Caith-
ness's death, obtained a decree of declarator of tinsel of the superiority against
the heirs of Alexander Brodie, and had in consequence thereof procured a char-
ter from the Crown, supplendo vicer of the immediate superior; and Earl Fife
and Sir James Duff having claimed to be enrolled on these lands, at Michaelmas
1779, Sir John Sinclair objected that he was the immediate vassal of the Crown,
and that the heirs of Alexander Brodie had lost the superiority during their lives,
by act 1474, cap. 57, and, in consequence of the decree of declarator he had
obtained against them. The freeholders sustained the objection ; but it being
the opinion of the Court, that a superior, by lying out unentered, and by the
vassal's obtaining a charter Jupplendo vicer, did not lose his character of Supe-
rior, or his right to the feu duties or other casualties, but only to the nonentry
duties during his life, they found that the freeholders had done wrong, and of.
dered the claimants to be added to the roll. See APPENDIx.
S Fol. Dic. v. 3. p. 473.
No Io9.
No 1 Io.
No I I I.
Effect where
the superior
unentered.
I38 MEMBER of PARLIAMENT. DIy. IV.
No 1 I 2.
T Ar-
No 1 13.
No t 14.
A person who
had granted
a trust dispo-
sition of his
estate for be-
hoof of his
ereditors,
found not en-
titled to vote.
The contrary
was after-
wards found,
in the c ise
which ſoilows.
178c. December 21.
mons.——See APPENDIX.
Boy Es against HAMILTON.
CAMPBELL had been enrolled in 1779, on the lands of Monkcastle, belonging
to the Earl of Eglinton, which had formerly belonged to the Abbey of Kilwin-
ning, elected into a temporal lordship in favour of the family ef Eglinton. No
complaint had been made of this enrolment; but at Michaelmas 1780, Mr Boyes
claimed to be enrolled partly on these lands of Monkcastle, to which he derived
right from the Duke of Hamilton, whose family were the church vassals, and
had them contained in their Crown charters for above a century. The freehold-
ers rejected Mr Boyes's claim, in respect that Mr Campbell stood already en-
rolled on these lands. On a complaint, the LORDs found they had done wrong,
andºrdered Mr Boyes to be enrolled.—See APPENDIx.
Fol. Dic. v. 3. p. 414.
—ºm-
1781. February. HAMILTON againſt BOCLE.
WHERE a freehold qualification depended on the old extent, it was argued,
that a very small dismemberment, for the purpose of straighting marches, must
be fatal, though the ground received be equal in quantity and quality; for,
since the old extent of the freehold was only forty shillings, the smallest altera-
tion might reduce it below the legal standard, and no division of the old extent
can now be made to ascertain the truth. The COURT repelled the objection,
and their judgment was approved of by a Committee of the House of Com-
- {}
Fol. Dic. v. 3. p. 415.
March 7.
RoßERT MUIR and CHARLEs DALRYMPLE againſt GILBERT MADAM.
1781.
tº
At the meeting for electing a Member of Parliament for the county of Ayr,
in 1780, it was objected by a freeholder to the title of Mr M'Adam of Meikland,
then standing upon the roll, That he had divested himself of the lands on which
he was enrolled, by a trust-deed, containing procuratory and precept, in favour
of certain gentlemen, for behoof of his creditors. By doing so, his right became
precarious and extinguishable at the will of another, and consequently ceased to
entitle him to a freehold qualification. w -
This challenge was brought before the Court of Session.
Pleaded for Mr M.Adam : A trust conveyance does not absolutely divest the
granter, althought infeftment has followed thereon. At any time before sale of
the subjects, he may redeem, by payment of the debts secured by the trust, in
SECT. I. MEMBER OF PARLIAMENT. I39
the same manner as a debtor whose lands are adjudged ; and his right is com-
pletely restored, by renunciation of the trustees, and without new infeft-
Inlent. t - -
In this case no infeftment has followed on the trust-right; neither was there
any evidence, when the objection was made, that either the trustees or creditors
had accepted thereof. It was, therefore, no more than a mandate to sell, which
no person ever conceived to be fatal to a qualification. -
2do, Mr M'Adam's right to vote is ascertained by the statute 1681, cap. 21.
by which it is provided, ‘That no person infeft for relief or payment of sums,
“shall vote, but the granters of the said rights.” *
Pleaded for the Objectors; It has been decided, in numberless instances, that
a disposition with procuratory and precept, did incapacitate the granter from
voting; and there is no distinction in law arising from the purposes of such
grants. £ - -
If the trustees had executed the procuratory, or obtained confirmation of the
infeftment taken on the precept, they would have become the Crown's vassals,
and the truster's right would have resolved into a reversion, which was personal,
and would be taken up by his heir, by general service. Nothing prevents the
trustees from taking these steps at any time.
2do, In rights for relief or security of sums of money, although the incum-
brance may render the property useless, or of little value to the proprietor, the
radical right still remains in him. In trust dispositions, the granter's right may,
in a moment, be totally annihilated; and, in the present instance, it is already
entirely dissolved, the trustees having sold the subjects at a price inadequate to
the payment of the truster's debt. 4. - --
THE LORDs “sustained the objection, and ordered the respondent to be ex-
punged from the roll.” Af
Act. George Fergusson. Alt. James Boswell.
Fol. Dic. v. 3. p. 417. Fac. Col. No so. p. 88.
-ms
1786. March 11.
RoberT DONALDson and Others against Sir LUDovick GRANT,
At a meeting of the freeholders of the county of Nairn, for electing a Mem-
ber of Parliament, it was objected to one of them, that he had granted to a trus-
tee, for behoof of his creditors, a disposition of the lands on which he stocd en-
No 1 14.
No 1 is
A trust con-
veyance for
behoof of
creditors
rolled, containing procuratory of resignation and precept of Sasine, in virtue of
which precept the trustee was infeft, full powers being thus conferred on the
disponee to enter into possession, levy the rents, sell the estate, and apply the
proceeds towards payment of the debts; and, in support of the objection, it
was
S 2
does not take
away the
right of voting
at the elec-
tion of a
Member of
Parliament,
I4O MEMBER of PARLIAMENT. Div. IV.
No 1 5.
No I. 16.
A claim for
enrolment by
a liferenter,
ought to spe-
cify the nature.
of his right.
Pleaded; Though the trustee's infeftment was a base one, he could at any
time become publicly infeft in virtue of the procuratory of resignation. The
right, therefore, of the truster, is defeasible at the will of another person, nor
can such a precarious title be understood as that public infeftment and posses–
Sion which are required by the statute of 1681. 7th March 1781, Muir
and Dalrymple contra Macadam, No 114. Jupra, * * *
Answered ; The statute of 1681 explicitly declares, ‘That no person infeft
‘ for relief or payment of sums shall have vote, but the granters of the said
• rights, their heirs and successors.' Now, the trustee, as in the room of the
creditors, is a person so infeft ; and therefore that provision applies directly to
the present case. His possession is virtually that of the truster. The case of
Macadam, if not determined on a specialty resulting from the sale of a part of
his estate prior to the day of election, ought not to be regarded as a prece-
dent.
THE Court considered the possession of the trustee to be truly that of the
truster, and that this case fell directly under the above provision of the sta-
tute; and therefore
They repelled the objection, and dismissed the complaint.
For Objectors, Wight. Alt, Abercromby.
S. Fol. Dic. v. 3. p. 417. Fac, Col. No 271. p. 418.
*
* . . . ; s -
|
1799. May 16.
ALEXANDER MURRAY againſt ALEXANDER MUIR-MACKENziE.
IN the claim exhibited for Mr Murray, in order to his being enrolled among
the freeholders in the county of Perth, it was stated, that “he was publicly in-
feft in all and whole the half of all and whole the lands of Ruskie, with the ma-.
nor-place thereof,” &c. t
The dates of a Crown charter, in which these lands were granted to Lord Na-
pier, of the assignation by his Lordship in favour of Mr Murray, of the infeft-
ment which followed, and of its registration, were accurately mentioned ; the
valuation of the lands was also precisely stated. ** , . . .
Instead of having right to the property or superiority of the lands, Mr. Mur-
ray was merely a liferenter of the superiority, the fee belonging to his brother.
The freeholders, therefore, refused to enrol him. And a complaint being pre-
ferred to the Court of Session, Mr Muir. Mackenzie, by whom the objection
*-
had been made, *.
Pleaded, By the enactment 16th of his late Majesty, it was provided, “That,
in order to prevent surprise at the Michaelmas meetings, every freeholder who
intends to claim at any subsequent Michaelmas meeting of the fieeholders,
shall, for the space of two calendar months at least before the said Michaelmas
SECT. 1. MEMBER OF PARLIAMENT. I4I
meeting, leave with the Sheriff or stewart-clerk a copy of his claim, setting
forth the names of his lands, and his titles thereto, with the dates thereof, with
the old extent or valuation upon which he desires to be enrolled; and in case
of his neglect to leave his claim as aforesaid, he shall not be enrolled at such
Michaelmas meeting.” - - t =
A claimant cannot be thought to comply with this regulation, by merely
stating the names of his lands, and the dates of the writings to be produced by
him, leaving the freeholders from thence to discover the nature of his qualifi-
cation, and the peculiar character in which he has a title to be enrolled. Least
of all can it be thought, that a discription of titles, quite inconsistent with the
the true nature of his right, is to be admitted. Here then the claim preferred
for the complainer was wholly incompatible with the purpose of the law, the
statement exhibited by him having, as it would seem, been purposely so framed,
as to give the freeholders a more favourable opinion of his qualification than
it truly deserved. This reasoning is supported by a decision, 3d March 1773,
Gordon against Abernethy of Mayen, infra, h. t. -
Answered, The statute requires a specification of the names of the lands,
the titles of the claimant, the dates of those titles, and, lastly, the old extent
or valuation. The claim here, given in was therefore precisely agreeable to
the directions of the law. It is no where said, that the nature of the estate,
whether as a liferent or fee, a wadset, a right of apparency, or of courtesy,
should be accurately defined. Nor is this at all necessary, as it must be pre-
sumed, that the freeholders, after the enumeration already mentioned, will be
- fully able, by inspecting the public records, to prepare themselves for giving
a determination. - -
The former precedents, so far from enlarging the operation of this law,
which is of a correctory nature, have tended to restrain it within the narrowest.
bounds. Thus it was found, that an omission to mention the date of a retour
was not fatal to a claim for enrolment. And in the same manner, where the
date of one charter had been erroneously stated, while that of another was
wholly omitted, the claim was nevertheless sustained. In the present case, it
was easy, from the writings specified in the claim, to discover that the claim-
ant's right was a liferent, though as free from the challenge of nominality as
any right of the same nature can be. The case referred to on the other side
was very different from the present one, both the dates of the titles, and the
names of the lands, having been omitted, Wigton on Elections, 4to edit.
p. 151. See AppENDIX. a
- - 4.
A feeble attempt was made to shew that Mr Murray's qualification was no.
minal and fictitious. But the judgment of the Court proceeded on the defect,
of the claim exhibited for him, which did not appear to fulfil, in any reason:-
able manner, the purposess of the statute.
After advising the complaint, with answers and replies,
“THE LORDs dismissed the complaint.”
No 1 16.
I42. MEMBER or PARLIAMENT. Div. IV.
No 1 16.
No 117.
The eldest
can of a Peer
of Scotland
has not a
right to be
enrolled a
freeholder to
yote in the
election of
Members of
Parliament
for counties
in Scotland.
Affirmed up-
on appeal. '
A reclaiming petition was afterwards preferred, and followed with answers,
but the Court adhered. * -
Act. Rolland, Macleod-Bannatyne. Alt. C. Hay. Clerk, Sinclair.
C. Fol. Dic. v. 3. p. 413. Fac, Col. No 129. p. 250.
—- sº lººm--
1792. January 24.
LoRD DAER, eldest Son of the Earl of Selkirk, againſt The Honourable Kinn
STEwART, and Others, Freeholders of the County of Wigton. * -
At the Michaelmas meeting of the county Of Wigton, held upon 6th Octo-
ber 1789, Basil William Douglas, commonly called Lord Daer, eldest son of the
Earl of Selkirk, presented a claim to be admitted on the roll of freeho
on certain titles therewith produced.
To the titles upon which the claimant desired to be enrolled, no objection
whatever was stated; but the minutes of the meeting bear, “That a vote hav-
ing been put, Whether the claimant, as the eldest son of a Peer, be capable to
be enrolled as a freeholder, or not? all the freeholders present voted not, ex-
cept Sir William Maxwell, who voted enrol, and the Reverend Dr William
Boyd, who declined to vote. The meeting, therefore, refused to enrol the
lders, up-
claimant.” *
Against this determination of the freeholders, Lord Daer presented a com-
plaint to the Court of Session, under the authority of the statutes of the 16th
of the late King, and of the 14th of his present Majesty. The Court ordered
a hearing in presence, and the cause was argued for several days.
Upon the part of Lord Daer, it was ſtated, That the fact of his being pos-
sessed of lands holding of the Crown, fully entitling him to be enrolled a free-
holder of the county of Wigton, was not disputed; but notwithstanding this,
it was maintained, that by being the eldest son of a Peer of Scotland, he was
precluded from that right which the same property would give to any other per-
son; and therefore the subject of enquiry was, by what law, or by what autho-
rity, this exclusion could be supported. º, -
In following out this enquiry, it was proper to take a view of the constitution
of the Parliament of Scotland, in so far as it respected the rights of the eldest
sons of Peers, from the earliest periods to which it can with any certainty be
traced, down to the time of the treaty of Union in 1707; and this came natu-
rally to divide itself into two different branches: The firſt, comprehending the
ancient period down to the year 1587, when representation was introduced 3.
* The circumstance of this being a question regarding the Constitution of the Ancient Piri,
liament of Scotland, and necessarily depending upon a variety of historical facts and deductions,
will, it is hoped, prove a sufficient apology for stating the argument at so much length. 3.
SECT. I. MEMBER OF PARLIAMENT, I 43
and the second, comprising the period from 1587 down to the act 1707, under
the authority of which the present question is to be tried.
With respect to the first of these periods, it was not necessary to engage in
any disquisition respecting the original form and constitution of Parliament;
for, without attempting to investigate a subject so involved in obscurity, it was
sufficient to begin at a period where more certain light might be discovered;
and it might safely be affirmed, that as far back as laws and records furnish
information, the Parliament of Scotland was the Great Council of the King,
composed of all those who held lands of the Crown in capite, together with re-
presentatives from the Royal Boroughs. At what period these last were intro-
duced, is an enquiry of no moment in the present question; but that every
vassal holding lands immediately of the Crown, whatever the extent of these
might be, was a constituent member, and bound, as such, to give attendance
to the King in Parliament, seems to be a fact of which no doubt can be enter-
tained, Lord Stair's Inst. b. 2. tit. 3. § 4.; Lord Kames's Essays, Brit. Antiq.
p. 25. * - -
It was needless, however, to go any farther than our statute-book, which af-
forded the fullest evidence of every vassal of the Crown being obliged to at-
tend in Parliament, and of that being only afterwards dispensed with, upon
condition of the lesser Barons sending represensatives. When, from the alie-
nation and sub-division of land-property, the vassals of the Crown came to mul-
tiply, so those who possessed inconsiderable estates, although they regarded
their right to sit in the National Council as a privilege, which they would not
entirely relinquish, yet considered it also as a burden, which they were de-
sirous of being subjected to, upon extraordinary occasions only. In an age,
- likewise, when force was more prevalent than laws, they found themselves of
little consequence in comparison with the great and more powerful Barons;
and in this way it happened that they came to be extremely remiss and irre--
gular in their attendance in Parliament.
Matters appear to have been in this situation in Scotland, when James;R re-
turning from his captivity, ascended the throne. Finding his power circum-
scribed by the great Nobles, it was natural for him to court the lesses. Barons,
whose influence was no way dangerous to him, and who being exposed to op-
pression from their powerful neighbours, would be disposed to seek his pro-
teC{1OIl.
With this view was passed the act. 1425, c. 52. ordaining, ‘That all prelates,
• erles, baronnes, and freeholders of the King within the realme, sen they are
“ halden to give presence in the King's Parliament and General Counsel, fra
thincfoorth be halden to compeir in proper person, and not be a procuratour ;.
but gif the procuratour alleage there and prove a lauchful cause of their ab-
6
&
“sence.’
This act, however, does not seem to have produced the desired effect. Many
of the lesser Barons, either dreading the power of the Nobles, or conscious of:
No 1 17.
I44 MEMBER or PARLIAMENT. Div. IV.
No 117.
their own want of importance, still with-held their attendance; and the King
therefore resolved to try another experiment, and to accomplish his purpose by
relieving them of personal attendance, upon condition of their sending repre-
sentatives. -
Accordingly, this was attempted by the act 1427, c. 101.; by which it would
seem to have been intended to establish something similar to the House of Com-
mons in England; for, after providing, that the “ small baronnes and free ten-
• nentes, need not cum to Parliaments nor General Councels; swa that of ilk
‘ scherifdome there be send, chosen at the head-court of the scherifdome, twa or
• mae wise men, after the largeness of the scherifdome,' it goes on and says,
• The quhilk sall be called Commissares of the Schere; and be thir Commis-
• sares of all the schires sall be chosen an wise man and expert, called the Com-
‘mon Speaker of the Parliament, the quihilk sall propone all and sundrie needis
‘ and causes pertaining to the commounes in the Parliament or General Coun-
° cel.” .
Here it seems plain, that the English House of Commons was in the King's
view ; and the act proceeds thus: “ The quhilkis Commissaries sall have full
‘ and haill power of all the laif of the scherifdome, under the witnessing of the
* schireffis seale. with the seales of diverse Baronnes of the schire, to hear, treete,
‘ and finallie to determine all causes to be proponed in Councel or Parliament.
* The quhilkis Commissaries and Speakers sall have costage of them of ilk
schire that awe compeirance in Parliament or Councel ; and of their rents, ilk
pound sall be utheris fallow to the contribution of the said costes.’
The act concludes with these words: “ All Bishoppes, Abbotes, Priores,
• Dukes, Earles, Lordes of Parliament, and Banrentes, the quhilkis the King
* will, be received and summoned to Councel and Parliament be his Special
“ precept.’
The calling the Prelates and Great Barons to Parliament by a special precept
to each, had been introduced in England by the Magna Charta of King John,
before the representation of counties was established ; and James I. by the act
1427, adopting a similar form, even when attempting to introduce representa-
tion in Scotland ; and it continued the same afterwards, because his endeavours
to introduce representation proved ineffectual. This is the first Scots Statute, in
which the distinction between the Greater Barons and Lesser Barons is to be II] et
with ; and it fully shows, that besides ecclesiastics and the commissioners of
burghs, the only other constituent Members of Parliament were those who held
lands of the Crown in capite. As to Banrenter, in place of being a class of
persons not holding lands of the Crown in capite, but called at the pleasure of
the King, they were, on the contrary, of the highest degree of Great Barons
and Lords of Parliament, to be called by special precept; as is proved by Skene
de verb. signif under the word Banrenter ; by Du Cange, in his Glossary, un-
der the word Barthereti, and by Selden, Titles of Honour, Paſt 2. c. 5. § 25,
&c.
SECT. 1. MEMBER or PARLIAMENT. I 45
In this particular, of calling all the lesser Barons and freeholders by edictal
citation, while the great Barons were to be called by special precept, this act of
Parliament seems to have been carried into execution: But, with regard to the
introducing representation, and the forming the representatives of the lesser
Barons into a separate body, with a common speaker, which would seem to have
been the two other objects in view, it does not appear that the statute ever took
effect. That the intended representation of counties did not at all take place,
is proved by the preamble to the statutes of the Parliament held 12th July
1428, to be found in the Black Acts, fol. 15. 17. 19.
The attempt thus made by the act 1427 having been unsuccessful, so thirty
years thereafter, another method of obtaining the attendance of the lesser
Barons was thought of in the reign of James II. and which was, to constrain
none but freeholders, who held of the King a twenty pound land, to come to
Parliament, and to leave all holding under that sum, to come or not, as they
pleased; and accordingly this was established by the act 1457, c. 75.
Upon this statute Sir George Mackenzie observes, ‘‘ by this act no freeholder
‘ can be forced to come to Parliament, except he hold a twenty-pound land of
“ the King ; but none can be now compelled ; and this was only in the time
‘ when all freeholders were obliged to compear in Parliament, as the King's
* head-court.’ - -
That the constituent Members of Parliament were all those freeholders who
held immediately of the Crown, is likewise proved by the acts 1449, c. 26, and
1489, c. 16. By the former it was enacted, “ That where regalities fall in the
King's hands, the freeholders within the same shall compear in Parliaments
‘ and General Councils, as the freeholders of the royalty do. By the latter it
was enacted, ‘That free tenants who hold of the Prince, as Duke of Rothcsay
• and Steward of Scotland, shall be holden to compear and answer in Parlia-
• ment, until the King have a son to answer for them in Parliament.' And
upon this statute Sir George Mackenzie observes, ‘ by this act it is ordained,
* That when there is no Prince, the vassals of the principality shall come to
4 Parliament ; and none can come to Parliament but such as hold of the King.’
Nothing further occurs in the statute-book till the act of James IV. 1503,
c. 78. by which it was provided, that Barons, freeholders, and vassals, whose
lands are within the extent of roo merks, should be exempted from personal
“ attendance in Parliament, unless specially called by the King's writ, provided
they send their procurators to answer for them.' . This act was meant as a fa.
vour to the lesser Barons, and to dispense with the attendance of those who held
lands within Iop merks of new extent provided they sent a procurator to an -
swer for them ; but with regard to such as held lands above that extent, the
law was left to stand as it was before. James IV. lived in such friendship with
his nobles, that he had no occasion to be solicitous about the attendance of the
lesser vassals of the Crown in Parliament. He was disposed, therefore, to re-
lieve from that burden those who were of inferior estates, leaving the obligation
T -
No 1 I 7.
146 MEMBER or PARLIAMENT. DIV, IV.
No t 17.
upon those above 100 merks of new extent, to be enforced by nothing further
than the old penalty. &
While this act relieved such as were within Ioo merks of new extent, from
personal attendance, it was with this exception, “bot gif it be that our Sove-
• raine Lord write specially for them;’ and in the former act 1457, there was
an exception of the same kind : But it is a most erroneous idea to suppose from ,
this, that the King had a power, at his pleasure, to call to Parliament any per-
son within his dominions, whether such person was or was not a Baron or free-
holder of the Crown in capite. The acts 1457 and 1503, in which this power was
reserved to the King, were passed, in order to relieve the lesser vassals of the Crown
from the necessity of attendance; and therefore the power of calling, here reserv-
ed, was only meant to apply to those whose constant presence was thus dispensed
with ; and it would have been adverse to the very idea of Parliament, as well
as an insult to the dignity and privileges of those who sat there, to introduce
amongst them any person who was not a tenant in capite of the Crown. See
this well illustrated by Sir George Mackenzie, in his Observations on this part
of the act 1503. *
To show still further, that, beside Prelates, Lords of Parliament, and Com
missioners of burghs, the only other constituent Members of that Assembly'
were the libere tenentes, or vassals of the Crown in capite, reference was made
to the form of the act or ordinance made by the King, as the warrant for the
Director of Chancery to issue out precepts or brieves for convening Parliaments;
copies of which are given by Lord Kames in his Essay on the Constitution of
Parliament, p. 60. 61. Further, it was stated, there was good reason to believe,
that the constitution of Parliament had been the same at a still more early pe-
riod; Stat. Rob. III. Pr. ; Stat. prima, Rob. I. Pr. ; Stat. Alex. II. c. 3. 4. ;
Fordun, lib. 8, &c. 73. ; Annals of Scotland, V. I. p. 139.
At the same time, without going further back than the reign of James I. and
taking a view of the statutes from that time down to the reign of James VI. it
was submitted to be evident, that no vassal of the Crown was excluded from a
seat in Parliament. On the contrary, every tenant of the Crown in capite was
bound to give suit and presence in Parliament ; and the several statutes that
were enacted, instead of aiming at any exclusion of such as held immediately
of the King, were passed either to enfore the attendance of all, or afterwards
to relieve from the constraint or necessity of coming there, those who, from
their inconsiderable property, were unable to bear that expense.
While such was the constitution of Parliament, it is utterly impossible to
suppose, that the eldest son of any Lord of Parliament, or of any Baron what-
ever, if he himself held land immediately of the Crown, could be excluded.
from the right of giving suit and presence in the King's Great Council. On the
contrary, it was a duty incumbent on him, by the very tenure upon which he
held his lands; and there is not a single word in any of the statutes, nor in any
SECT. 1. MEMBER OF PARLIAMENT. I47
of the writs for calling Parliaments, nor in any existing record or document,
which can support such an exception.
Even if the matter were left to rest upon these general principles, the conclu-
sion would be sufficiently certain; but to go further, there is, in the next
place, unquestionable evidence, that the eldest sons of Peers, not only did come
to Parliament, but sat there as constituent Members, in virtue of their freeholds
as vassals of the Crown.
During the reigns of James I. and James II. no rolls of Parliament are now
extant. The first roll that has yet been discovered, is that of the Parliament
which was held at Edinburgh upon the 12th October 1467, in the reign of
James III. ; it mentions, as-present, 25 Ecclesiastics, 24 of the Nobility, and Iz
of the lesser Barons. The next roll is that of the Parliament held 20th No-
vember 1469, at which there appear to have been present, 23 Ecclesiastics,
2 Officers of State, 33 of the Nobility, 2 I lesser Barons, and 22 Commissioners
of burghs. Both these rolls, however, are incomplete, and bear at the end, et
quampluribus aliif -*
Besides these, there are rolls of most of the Parliaments held during this
reign. In the Parliament 1471, there appear 3o Ecclesiastics, 29 of the Nobi-
lity, Io lesser Barons, and 23 Commissioners for burghs. In the Parliament
1471-2, there are 15 Churchmen, 20 of the Nobility, 34 lesser Barons, and I I
Commissioners for burghs. In the Parliament 1476, there appear 17 Church-
men, 32 of the Nobility ; but no lesser Barons nor Commissioners of burghs are
mentioned. # &
In the Parliament 1478, there appear 14 Churchmen, 14 of the Nobility, 7 lesser
Barons, and 20 Commissioners of burghs; and this is the first roll in which the
names are set down in columns. It is very distinctly written in columns, first
the Bishops, then the Abbots, then the Comites et Baroner, then the Domini Par-
Jiamenti, next the Baroner, and lastly the Burgorum Commissarii. In the class
of the Baroner are placed the Magister de Halis and the Magister de Erykyn.
In the roll of the Parliament 1481 the names are not set down in columns; but
amongst the Baroneſ are placed the Magister de Erskine and the Magiſter de
Halif.
Of the Parliament held 1481-2, the roll has the names set down in columns.
There is one column with a common title for all the Barons. In this, after the
Domini, there is a blank space; after which are the eldest sons of Peers; and
immediately after them, without any blank space, the other lesser Barons.
These eldest sons are, the Magister Crawford, Magister Keith, Magister Mor-
ton, Magister Erskine, Magister Sommerville. '.
In the roll of the Parliament 1484, there are three eldest sons of Peers, Ma-
gister Crawford, Magister Erskine, and Magister Kilmaurs. In the Parliament
1484-5, in that held 1485, in that of 1487, and in that of 1487-8, there ap-
pear also some of the eldest sons of Peers. º * *
T 2 ~ y
No 1 17.
143 MEMBER of PARLIAMENT. Div. IV.
No 1 17. Thus, in nine of the Parliaments held during the reign of James III, the rolls show
- eldest sons of Peers to have been present, and marked as constituent members;
and of the other Parliaments held in this reign, the rolls of some of them are
lost, and others incomplete. .
The same thing appears from the rolls of the Parliaments held during succeed-
ing reigns. Thus, during the reign of James IV, there appear to have been held
fourteen Parliaments, of seven of which there are no rolls extant; and in the
remaining seven, of which we have rolls, there are to be found eldest sons of
Peers sitting in no fewer than five of them. . •
During the reign of James V. there appear to have been held seventeen Par-
liaments, of five of which no rolls are to be found; and of the remaing twelve
which have rolls, there appear eldest sons of Peers in five of them. During
the reign of Queen Mary, there appear to have been held fourteen Parliaments,
of four of which there are no rolls; but in every one of those of which we
- -, have rolls, there are found the eldest sons of Peers. -
Of the two first Parliaments of James VI, the first held 15th December 1567,
and the other held 18th August 1568, the rolls have been only recently dis-
covered, and they are found to contain the names of four eldest sons of Peers.
From that time, down to the year 1587, there do not appear, in the rolls of
Parliament, any eldest sons of Peers, nor indeed any lesser Barons whatever.
The attendance, or the neglect of attendance of the lesser Barons in Parlia.
ment, may be in a great measure explained, by taking a view of the situation -
and circumstances of each particular period. “-
During the turbulent and busy reign of James III, there is seldom a Parlia-
ment, in which the attendance of a considerable number of the lesser Barons
does not occur. In times of public commotion, and when the spirit of opposi-
tion to the Crown rose to any considerable height, numbers of the lesser Barons
came to Parliament, and probably were brought there by the Nobles; for by
that time, the King had perceived it of little consequence to command the at-
tendance of the lesser Barons, because he found that any resolution, though
taken by the majority, could not be executed, if it opposed the will of the
more powerful minority. The Commissioners of Burghs likewise appear to .
have attended in Parliament, during this reign, in considerable numbers, more
especially after the act 1469, c. 29. obtained during the King's minority, and
which changed the mode of electing the Magistrates and Council of Burghs,
and thereby enabled the Nobles to acquire great power over them. . .
. During the reign of James IV...there being no stru ggle between the King -
and his Nobles, few of the lesser Barons, and still fe wer of the Representatives
of Burghs, appear to have attended. Some of the eldest sons of Peers how-
ever, are, during this reign, to be found in every Parliament of which there
remains any roll. . . . . . . . . . -
In the reign of James V. very few of the lesser Barons seem to have attend-
t d ; although, when they did , we always find some eldest sons of Peers amongst
-*
Secr: 1. MEMBER of PARLIAMENT. I49
them. In the rolls of several of these Parliaments, it would seem as if there
had not been even a single lesser Baron present; but at the same time, there
is some reason to suspect the accuracy of the rolls, because we find lesser Ba-
rons mentioned as members of the Committee of Articles, even when their
names are not to be found in the roll. Few, likewise, of the Commissioners of
Burghs seem to have attended; and indeed it was not in Parliament that there
was any struggle at this period. It was in the field; it was in the carnp at
Fala; in the after refusal to march into England; and, finally, in the rout at
Solway Moss, that the Nobles, too fatally, convinced the King of their power
and independence. •ºr - --.
In every one of the Parliaments of Queen Mary of which rolls remain, there
appear several of the eldest sons of Peers, but very few of the other lesser Ba-
rons, and few of the Commissioners of Burghs. The Reformation had now
begun to make considerable progress in Scotland; but matters were not yet
ripe for bringing it into Parliament. This did not happen till 1565, when there
came upwards of an hundred lesser Barons, and a considerable number of the
Representatives of Burghs. -
From the circumstances already explained, the lesser Barons had, in a great
measure, neglected and given up attendance in Parliament ; but it required
only some extraordinary conjuncture to rouse them from their inactivity. .
Whenever such presented itself, they were ready to stand forth ; and a remark-
able instance of this had already occurred in the year 1555, when Mary of Guise,
the Queen Regent, having proposed in Parliament to register the value of lands
throughout the kingdom, to impose on them a small tax, and to apply that re-
venue towards maintaining a body of regular troops in constant pay, about 300
of the lesser Barons immediately assembled, remonstrated with the most deter-
mined boldness, and, alarmed at this, the Regent prudently abandoned her,
scheme. Buchanan. Hist. lib xvi. c. 8. I wº - -
The lesser Barons had so long neglected their attendance, that when they.
came in such numbers to the well-known Convention in Parliament in August.
1560, they thought it necessary to present a petition, asserting, their ancient
right, and praying that ‘ their advice, counsel, and vote should be taken;' and
this act “passed without contradiction.’ Robertson's Hist, App. No 4.
Whatever the circumstances were, which had made the lesser Barons neglect
coming to Parliament, the rolls afford full evidence, that frequently at least a
few of them were present ; and, in particular, upon many occasions, some of
the eldest sons of Peers. And, together with the great number of these in-,
stances vouched by the rolls of Parliament, there are several examples of their
sitting in Conventions of the Estates; between which and Parliaments there.
does not seem to have been much distinction. Sir George Mackenzie, Observ.
p. 302. Spottiswoode, Hist. p. 52.9, 5 Io. •
It had been said, that upon all these occasions the eldest sons of Peers attend-.
ed in Parliaments or Conventions, not in their own right, as holding lands in-
No 1 17.
f50 MEMBER of PARLIAMENT. DIV. IV.
No 1 17, mediately of the Crown, but as proxies for their fathers, or as summoned by
special precept from the King, in virtue of the power reserved to him by the
statutes 1457 and 1503. Both these suppositions, however, it is easy to show,
were without any foundation. - ,' .* *
As to their sitting as proxies for their fathers, this is completely refuted by
the rolls, which furnish clear evidence of the father and the son sitting together
in Parliament at one and the same time. Of this a number of instances were
given ; and farther, it was remarked, that whenever any person appeared as
proxy for another, he was set down as such in the roll of Parliament; whereas
these Magistri, whether eldest sons, or heirs apparent of Peers, were evidently
set down as sitting there in their own right, without the addition of proxy, and
are placed amongst the lesser Barons. ~-
As to their having been called by special precept from the King, it was re-
maiked in the first place, That if there had been only a few instances of the
eldest son of a Peer being found in Parliament, there might be some pretence .
for supposing its having been occasioned by some unusual cause ; but when
there are such a variety of instances, in so many different Parliaments, in so
many different reigns, and frequently also during the minority of our Kings, it
must be impossible to account for this in any other way, than by holding, that,
they came there in virtue of their own right, as possessed of lands holding im-
mediately of the Crown. In the second place, it has been fully shown, That
in virtue of the power reserved by the acts 1457 and 1503, the King could, by
special precept, call those only who, by being immediate vassals of the Crown
had not merely a right, but were bound to attend in Parliament. - -
And in the third place, Evidence was produced to show that these Magistri,
prior to the time of their appearing in Parliament, were actually possesssed of
estates belonging to them in their own right, and giving them therefore an un-
questionable title to sit in Parliament, See Lord Kames's Essays, Brit. Antiq.
p. 98. -
The ſecond branch respects the period between 1587 and the treaty of Union
in 1707; and under this head, the first thing which occurs, is the well-known
statute 1587, c. 114 in which there certainly is not a single word that even
* points at placing the eldest sons of Peers in a different situation from what they
were before. If, when possessing lands as vassals of the Crown, they had a
right to sit in Parliament before this time, there does not occur any thing in
the act taking away that right, or putting them in a worse condition. Indeed /
it specially refers to, and revives the prior act 1427; and, as it has been clear- |A
ly shown, that the said act 1427 did not diminish their right, but that, on the
contrary, they enjoyed and exercised it from that time downwards; so neither
can it be supposed, that the statute now in question meant to make the smal-
lest change. . - -
* This statute directs a precept forth of the Chancellary, to convene the free-
holders for choosing Commissioners, as is contained in the same act 1427. It
SECT. I. MEMBER of PARLIAMENT. 1 5 I
“ ordains all freeholders of the King, under the degree of Prelates and Lords of
• Parliament, to be present at the choosing of the said Commissioners.’ It ordains
all freeholders to be taxed for the expense of the Commissioners; and it pro-
vides, that the compearance of the said Commissioners ‘sall relieve the haill
‘ remanent freeholders and small Barons of the said schires of their suits and
' presence aucht in the said Parliaments.” Thus, there is not only a most ex-
press reference to the act 1427, but in every part, there is constant mention
made of all freeholders under the degree of Prelates and Lords of Parliament,
without any other distinction or exception whatever. That the eldest son cf
any Baron, whether greater or lesser, did not come under the description of a
Prelate or Lord of Parliament, is indisputably clear; and therefore, when hold-
ing lands in their own right immediately of the Crown, they assuredly fell un-
der the denomination of freeholders of the King, as expressed in this statute.
Indeed it is utterly inconceivable, that there could have been any purpose or
intention of excepting them; and if there had, surely, in place of being left
to implication, it would have been expressed in terms the most explicit and un-
ambiguous. It neither was the interest, nor could it be the view of the young
King, then hardly of age, to irritate a powerful nobility, by encroaching upon
the then acknowledged rights of their eldest sons; and therefore, the idea of ex-
cluding them has as little support from probability, as it has any foundation in
the words of the act of Parliament. . r
It is remarkable, that a statute deemed so important with respect to the con-
stitution of the Scots Parliament, is scarcely mentioned by the historians who
wrote near that period. Neither Calderwood nor Johnston take any notice of
it whatever; and even Archbishop Spottiswoode speaks of it in the slightest
manner. Indeed, it is not a little singular, that the King himself, in his Basi-
licon Doron, written but a few years afterwards, and wherein he speaks fully
of the Scottish Parliament, takes no notice whatever of the chanze introduced.
by this statute. The truth seems to be, that the act was the result of an ap-
plication from the lesser Barons, to be relieved of their obligation of attendance
in Parliament, upon their observing certain promises and conditions made to
his Majesty, which could be no other than their engaging to send Commission-
ers, and to bear their expense; and, if this was the case, there seem to be
grounds for believing, that the act proceeded less from any views of policy in
the King, than from a proposition on the part of the lesser Barons, to obtain,
upon these terms, relief from a burden which, by law, might otherwise be im-
posed on them. -
The next statute is the act 1661, c. 35. concerning the persons entitled to
elect and be elected Commissioners of shires to Parliament, and which enacts
that all heritors holding of the King, and whose yearly rent amounts to ten
chalders of victual, or L. Icoo Scots, shall be capable of electing and of being
elected, excepting always all Noblemen and their vassals. What persons the
Legislature here comprehended under the word Noblemen, is fully explained.
*
No 1 17,
is MEMBER or PARLIAMENT. Div. iv.
by two unprinted acts, passed in 1662. The one is an act ‘for settling the or-
‘ders of the Parliament House; and it expressly distinguishes between Noble-
men themselves on the one hand, and their eldest sons and appearand airs-male
on the other, and assigns a separate place for these last ; while the Noblemen
themselves have the benches appropriated to them and the Archbishops and
Bishops. In like manner, the other act, which regards enforcing attendance,
mentions the penalty upon a Nobleman as being a constituent Member of Par-
liament, and could not possibly comprehend any others but those who, in vir-
tue of being actually Peers at the time, had a seat in that Assembly. In short,
the term Noblemen is used as synonymous to Lords of Parliaments and the
eldest sons of Noblemen are mentioned as altogether a different order. -
With regard to the act 1681, c. 21. it, like all the former, is perfectly gene-
raï and comprehensive; and, by declaring, that none shall have a right to vote
but those possessing a 42 shilling land of old extent, or L.405 of valued rent,
it equally declares, that all those shall have a vote who are possessed of such
jūrtifications. It may likewise be remarked, that the act contains various re-
strictions and exceptions, particularly relating to the objection of minority ;
and had it then been supposed or understood, that the circumstance of being
the eldest.son of a Peer, formed any objection, there cannot be a doubt, that
it would have been carefully mentioned by the Legislature. This statute, there-
fore, instead of excluding, clearly comprehends the eldest sons of Peers posses-
sing the qualifications thereby required; for it confers the right of voting upon
all freeholders of a certain extent of property, without any such exception.
From this time down to the Union, there is no statute making any variation,
either with regard to the rights of those entitled to be elected, or entitled to
vote in the election of members to the Parliament of Scotland. And after this
review of the statutes, if it shall be said that the right, which it must be ac-
knowledged the eldest sons of Peers -- did once possess, was taken away by law,
let these Objectors point out that law, or that statute, which imposed
SO unjust and so severe a forfeiture ; let them explain those circumstancss
which could warrant such a deprivation; and let them say by what authority,
and at what period, that right was taken away. Mere assertion, unsupported
by evidence, will not be listened to ; and the statutes, in place of furnishing
any aid to their plea, afford the most satisfactory proofs, that it was neither the
intention nor the view of the Legislature, to strip the eldest sons of peers of
their right, nor to place them in a worse situation than any other vassals of the
Crown. - - - . - -
In the next place, with regard to the usage and practice during this period, it
having been alleged, that there is no instance of a peer's eldest son being elect-
ed into Parliament; so it is, in the first place, to be considered, How far there
is any sufficient evidence of this alleged disuse; and in the second place, How
far that disuse can be reasonably accounted for, so as to exclude any supposition
of the right itself having been taken away. . F.
SEcºr. I. MEMBER or PARLIAMENT. - I53
As to the fact, it in the first place merits attention, that although from 1587
to 1612, there were no fewer than seven Parliaments held by James VI. yet
the whole rolls of these Parliaments are lost. During the remainder of this reign
only three Parliaments were held, one in 1612, another in 1617, and a third in
1621. Of these the rolls still remain ; and there is not mentioned in them the
name of any of the eldest sons of peers. - - º
During the reign of Charles I. there is extant only the roll of the Parliament
held 18th June 1633. The Parliaments 1638 and 1640 were called indeed by
royal authority ; but the whole acts passed in them were at the Restoration re-
scinded, and no rolls nor minutes of their proceedings remain. Another Parlia-
ment was called in 1644, and continued by different sessions till 1646; and in
1648, a Parliament was held, of which there were three sessions, held in that
and the following year 1649; but these Parliaments met without royal authori-
ty, and no rolls nor record of their proceedings remain.
4.
In the reign of Charles II. three Parliaments were held, one in 1661, another
in 1669, and a third in 1681. Of the first of these there were three sessions,
one in 1661, another in 1662, and a third in 1663; of the second there were
four sessions, one in 1669, another in 1679, a third in 1672, and a fourth in
1673; of the third, held in 1681, there was only one session. There were also
three Conventions of Estates, one held in 1665, another in 1667, and a third in
1678; and of all these Parliaments and Conventions the rolls remain.
In the reign of James VII. there was only one Parlirment, of which there
were two sessions, the one in 1685, and the other in 1686.
During the reign of William and Mary, the Convention of Estates held up-
on 14th March 1689, was upon 5th June that year declared a Parliament. It
was continued for no fewer than ten different sessions, and till after the acces-
sion of Queen Anne. - - *
In 1703, Queen Anne called a new Parliament, which met 6th May that
year, held a second session 16th July 1704, a third session 13th June 1705, and
a fourth session 3d October 1706. This Parliament concluded the treaty of
Union, and was the last Parliament of Scotland. Of all these Parliaments the
rolls remain, and no eldest son of a Peer occurs in them.
Thus, from the period of the Restoration down to that of the Union, there
were no more than six Parliaments, only three in the reign of Charles II. on! y
one in the reign of James, only one in the reign of William, and only one in
the reign of Queen Anne. Although therefore the rolls of these Parliaments
remain, and contain not the name of any Peers eldest son, yet it will be kept
in view, that there were only six general elections; and with regard to the pe-
riod before the Restoration, it has already been shewn, that the rolls of only
four of the Parliaments remain ; the rolls of all the other twelve Parliaments
which were held during that period, being now lost. In short, during a period
of no less than one hundred and twenty years, which passed between I 587 and
1707, although there were twenty-one Parliaments, yet the rolls of only ten of
- U -
No I. 17.
is MEMBER of PARLIAMENT. DIV. IV.
No 117.
them are extant to the present day. And when it thus appears that more than
one half of the rolls of the Parliaments held during this long period are now
lost, it will be considered, whether the circumstance of the name of no Peer's
eldest son being found in those that remain, can be held sufficient to prove, that
during all that period they never once excercised their right.
But, in the next place, when it is considered, that there is no evidence of the
right itself being taken away ; so, unless the contrary should be clearly shewn
throughout every part of this long period, the presumption should rather be,
that they did exercise that right, and that their not happening to appear in the
rolls which remain, has been occasioned by other causes than any abandonment
or any forfeiture of their right. And there are a variety of circumstances
which may serve to account for the neglect of the exercise of their right.
The ideas and the motives of men must be measured by the times in which
they lived, and by the circumstances in which they were placed. Various cir-
cumstances in the ancient situation and constitution of Parliament, naturally
contributed to dispose the lesser Barons to view attendance upon it as a burden,
which, on the other hand, there was no advantage to compensate. In a mar-
tial age, when military enterprises were the chief occupation, the civil transac-
tions of Parliament were little interesting. Taxes were then almost unknown,
and the framing of any laws or regulations respecting property and civil rights,
were left almost entirely to the Ecclesiastics. Even the great Barons attended,
more from its being a service, which they owed to the King as their feudal su-
perior, and a duty which it became their own dignity to perform, than from
any share which they took in the ordinary business that might occur. And it
need not be wondered at, therefore, that the inferior vassals of the Crown should
deem it a hardship to be obliges' to attend an Assembly, in the usual proceed-
ings of which they were so little interested, and where they felt themselves to
be of so little importance.
This was very nearly the State of Parliament, from the time when James I.
ascended the Throne in 1434, till the period of the Reformation in the reign
of Queen Mary. During a turbulent reign, or during some public commotion,
the iesser Barons night be excited, and brought to come to Parliament, in un-
usual numbers; but excepting upon such extraordinary conjunctures, they were
glad to decline that burden, and anxious to obtain an exemption from it. Even
in the reign of James III. the number of lesser Barons in Parliament never ex-
ceed thirty-four ; in the reign of James IV, their number never exceeded fif.
teen ; and in the reigns of James V. and Queen Mary, they never exceeded
seven, and these almost entirely the eldest sons of Peers.
Gradually, however, the alienation of property operated a considerable
change. The exorbitant estates of the great Barons came, in progress of time,
to be shared out into more hands; and the lesser Barons multiplying greatly in
number, soon advanced into a more respectable situation. Still, however, there
were circumstances peculiar to the situation and constituticn of the Scottish Par-
SECT. I. MEMBER or PARLIAMENT. - 155
liament, which prevented them from viewing their presence in that Assembly No 1 17.
as of any importance, and which constantly led them to consider their attend-
ance as a grievance to be shunned, rather than a privilege which they should
wish for, and court opportunities of exercising. - -
In the firſt place, The Committee distinguished by the name of Lords of the
Articles, was peculiar to the Parliament of Scotland, and had very signal ef-
fects upon its constitution. It put it in the power of the King to control Par-
liament, and necessarily precluded all deliberation and freedom of debate. See
Kames's Ess. Brit. Antiq. p. 51. * - -
In the ſecond place, The short time which Parliament continued to sit, is ano-
ther circumstance meriting attention, and it chiefly arose from that very institu-
tion of the Lords of the Articles, upon whom the whole load of the business was
devolved; so that the Parliament met the first day to choose that committee,
and having then adjourned, usually met again only on the last day, to receive
and to vote what were called the conclusions of the Lords of the Articles, after
which they separated. Bishop Burnet's Hist, own Times, vol. 1. p. 11 5. fol.
edit. See also Calderwood's Hist. p. 730. 731, &c. which furnishes a most
striking picture of the situation of the Parliament of Scotland. *.
In the third place, The Parliament of Scotland consisted only of one House,
in which the whole estates assembled together, held their deliberations in com-
mon, and voted promiscuously, each individual member being entitled to an
equal voice. No circumstance, perhaps, contributed more to exalt the import-
ance of the Parliament of England, than that of its being divided into two Houses.
The union of the representatives from counties with the representatives from
burghs, formed a distinct order in the state, and their separation from the Spiri-
tual and temporal Lords, drew after it the most signal consequenses, and may
justly be deemed the chief cause of the high authority of the English House of
Commons. In Scotland again, they assembled together in oné House, and the
Commons acquired none of those privileges which would have been the result
of a separation, and which gave such importance and authority to the same order
of men in the neighbouring kingdom.
A fourth circumstance, which contributed to keep the representatives of the
Commons of Scotland in a low and dependent condition, was the vast accession
of power, which the King derived from his succession to the English Throne,
This, while it gave him great authority with his Nobles, necessarily encreased
his influence in Parliament; and against a powerful Prince and his proud Nobles,
the Small Barons could be of little account. Even before his accession to the
Crown of England, James held the small Barons of no consequence. See King
James's Works, p. 162, 163. After the reign of James, and about the middle
of the last century, the Commons of Scotland rose into some greater considera.
tion, but still they were of little consequence in Parliament till after the Revo-
lution ; and the interval between that period and the Union, was of too short du-
- U 2 -
156 MEMBER or PARLIAMENT. Div.'IV.
No 1 17,
ration to afford sufficient opportunity for letting the Commons feel their conse-
quence, and establish their independence. - /
In the fifth place, Till after the Revolution, few taxes were imposed by the
Parliament of Scotland. It was the power of taxation that in England first gave
importance to the representatives of the people; and it is the important privilege
of granting or of refusing supplies, which at the present day maintains the inde-
pendence of the House of Commons, and is the true palladium of our excellent
constitution. In Scotland, the parliamentary taxes were so few, as well as so
light and inconsiderable, that it may easily be conceived how little the nation
would upon that account be excited to resist the authority of the Crown, or be
engaged to give attendance in Parliament. See Sinclair's Hist. Pub. Rev.
Part 3d. - 4.
These various circumstances exhibit too faithful a picture of the condition of
our Parliament, from the Union of the Crowns to the period of the Revolution.
A Monarch possessed of exorbitant power; a proud and numerous, but corrupt
Nobility; and small Barons of mean fortune, with Representatives for burghs,
where arts and commerce were hardly known, and had not yet given birth to
wealth and independence. These, in one joint body, formed the Estates of Par-
liament, where the King, by his own power, and by the Lords of the Articles,
had almost boundless influence. Their sittings were short; the business being
already prepared, was voted with dispatch ; and no freedom of debate, nor time
for deliberation, were allowed. Such were our Parliaments: And the Commons,
oppressed equally by the arbitrary severity of the Government, and by the power
of the Nobles, sunk into the most abject despair; and had it not been that reli-
a total extinction. . - sº
In the ancient Parliaments of Scotland before the Reformation, to distinguish
themselves in the Court, and in the Councils of their Sovereign, equally suited
the rank, and became the dignity of, the eldest sons of the Nobles. To be in
his Court, was the necessary consequence of their birth and fashion; and when
they held lands as his immediate vassals, to sit in his Parliament was what they
owed to him of right. They sat there with those to whom they were equal in
gious zeal kept alive the flame, every spark of civil liberty must have suffered
blood, and to whom they were nearly equal in rank ; for few of inferior condi-
tion attended; and they came there, not sent by, nor at the charge of others,
but of themselves, and at their own expense. -
But after representation was established, and after large estates had, by fre-
quent partitions, been dealt out into many small parcels amongst the lesser
Barons, to be the delegated deputies and hired messengers of such inferior per-
sons, could but ill befit the gallant sons of proud and independent Nobles.
ſhey would not deign even to submit to the burden; for, as a burden, and not
as a privilege, it was considered. It was a trust from which no profit nor ho-
nour was to be derived, and consequently was every where shunned, in place of
SECT. I. MEMBER OF PARLIAMENT. …” I 57
being courted. When afterwards the Commons, in progress of time, rose to
some greater importance, the power of the Crown, and the peculiar constitution
of Parliament, still checked their advancement, and rendered them of little or
no account in that assembly. If they discovered any ardour for freedom, it was
quickly repressed; and in a tyrannical Government, and an enslaved Parliament,
there was nothing that could allure the eldest son of a Peer to claim his right
to be a representative of the people. No wonder, then, that during this period,
we do not discover them sitting in that assembly, where, in place of having any
opportunity of displaying abilities, all freedom was banished, and every symp-
tom of a spirit of liberty crushed by the strong hand of arbitrary power.
Thus the right of the eldest sons of Peers had not been taken from them, but
they had forborne to use it, while they deemed it of little value. The long ne–
glect of the right, however, seems to have produced a notion, that any preten-
sions to it were relinquished; and there is little wonder that such an idea should
have come to be eagerly cherished by a people irritated by manifold oppressions
from an arbitrary government and a powerful aristocracy. It was an erroneous
notion, but it had come to prevail; and in this situation were the minds of men
in this country at the accession of James VII. in 1685, and when new oppres–
sions were dreaded from the known disposition of that bigotted and infatuated
Prince.
Upon 23d April 1685, the first and only Parliament of James was held at
Edinburgh, and Sir George Mackenzie of Tarbat, who was Clerk. Register, and
who had gone to London upon the accession of the King, came down, intrust-
ed with his Majesty's instructions for managing the Parliament, and honoured.
with a patent of Peerage creating him Viscount of Tarbat. The character
and history of this Noble Lord are well known. In 1681, he was high in trust
and favour with the Duke of York, when Commissioner to the Parliament of
Scotland; and he was not only a chief promoter, but defended, with indecent.
keenness, all the violent and illegal proceedings of that tyrannical administra-
tion. He became, upon this account, deservedly unpopular, and obnoxious to
the nation, who were now still farther provoked at seeing him: advanced to ho-
nours by their new Sovereign, and sent down to lead on a prostitute Parlia-
ment to the most unprincipled measures, and to a total resignation of their li-
berties, both civil and religious. -
It happened, that before being advanced to the peerage, his eldest son had
been elected one of the Representatives to Parliament from the County of Ross;,
and it naturally occurred, as a very difficult and delicate matter, in what way.
the Viscount of Tarbat should act upon this occasion. It was not a time for
urging an unpopular topic, nor was that of the son of a hated and obnoxious.
minister of the Crown the case in which the question could be expected to be
discussed and tried with any fairness and candour; and, in short, having no-
alternative, but either to try the question, or to withdraw his son from Parlia- .
ment, he wisely chose the latter; and accordingly, upon 23d April 1685, the:
No II 7.
I 53 MEMBER OF PARLIAMENT. Div. IV.
No 117.
very first day of the session, there appears a short minute, by which warrant
was given to the freeholders of the shire of Ross, to meet and elect another Re-
presentative, “in respect the Viscount of Tarbat's eldest son, by reason that his
“his father is now nobilitate, cannot now represent that shire.”
That this is the true account of the case of Tarbat receives the strongest
confirmation from what afterwards happened in the Convention Parliament
1689, in the question between William Higgins, and the Lord Livingston, el-
dest son of the Earl of Linlithgow, with regard to the election of the burgh of
Linlithgow. The clerk of that burgh having given a commission to Lord Li-
vingston, as duly elected ; Mr Higgins complained of this, and offered a memo-
rial in his behalf, which was remitted to the committee for elections.
In this memorial for Mr Higgins, there is not the least mention whatever of
there being any objection against Lord Livingston upon account of his being
the eldest son of a Peer; but, on the contrary, it enters into a very full and
anxious investigation, as to the numbers and validity of the different votes, in
order to show that Higgins carried his election by a clear and decided majo-
rity. Had it been understood, that his being the eldest son of a Peer render-
ed Lord Livingston incapable of being elected, or that the case of Tarbat in
1685 had been a fair decision of that question, it is impossible to believe, that
this could have been forgot so recently after as the year 1689, or that the com-
mittee would have gone any farther, than to rest upon that conclusive objec-
tion, or that they would ever have entered upon the other branch of the cause,
respecting the legality and validity of the particular votes. Instead of this,
however, the committee, although they did not choose to overlook altogether
that popular objection, yet, not inclining to trust to that alone, they added, in
the second place, “in respect William Higgins was more legally and formally
elected by the plurality of the votes of the burgesses.”
All this is strongly confirmed by what passed in the Parliament of Scotland
at the important period of the treaty of Union in 1707, only eighteen years af.
ter the case of Livingston, and only twenty-two years after that of Tarbat, and
when these transactions must have been in the remembrance of many Mem-
bers of the House.
Upon 24th January 1757, when the fixing the number of Representatives
from the shires and burghs of Scotland was taken into consideration, a clause
"WąS proposed, “That no Peer, nor the eldest son of any Peer, can be chosen
to represent either shire or burgh in this part of the United Kingdoms, in the
House of Commons.” . - - &
This clause came not from those who affirmed the right of the eldest sons of
Peers, but from those who were desirous to have them excluded; and had they
already stood excluded by law, there could have been no necessity for any such
clause; but, on the contrary, an opposite clause would have come from the
other side, to the effect of making them eligible. No such motion however
was made, because their right was held to be good, and it was therefore suffi-
SECT. I. MEMBER or PARLIAMENT. & I59
*-
cient to prevent a clause that would now exclude them, and to leave their right
to stand upon its former footing. In consequence of this, a clause to that pur-
pose was opposed to that which had been moved for, and was accordingly car-
ried by a majority of 14, the numbers being 86 for the second clause against
72 for the first.
If it had been then law, that the eldest sons of Peers were not eligible, and
that the cases of Tarbat and of Livingston had been founded in law, it would
have been an extraordinary circumstance to have found a majority of the Scot-
tish Parliament, and among these the Lord Chancellor, as well as many of the
most respectable and eminent men of the country, presuming openly and avow-
edly to contest and to resist a proposition warranted by law, and confirmed by
two recent precedents of the High Court of Parliament. It is more reasonable
to presume, that the movers and supporters of the clause which was rejected,
were actuated by popular opinion, and by notions of political expediency, ra-
ther than by any cool and dispassionate judgment of the legal merits of the
question; and indeed this is confirmed by Defoe, in his History of the Union,
p. 212. ---
That the clause which actually carried. was understood by the Peers to be in
effect a declaration of the eligibility of their eldest sons, is demonstrated by
what happened immediately after the Union ; for, upon occasion of the gene-
ral election for the Parliament called by Queen Anne in 1708, no fewer than
eight eldest sons of Peers offered themselves as candidates for counties and
burghs in Scotland ; and such a number starting so immediately after, seems to
afford irresistible proof of the sense in which the clause in the treaty of Union
had been understood.
By the act 1707, settling the manner of electing the 16 Peers and 45 com-
moners for Scotland, it was enacted, “That none shall be capable to elect, or
‘ be elected, to represent a shire or burgh in the Parliament of Great Britain,
• for this part of the united kingdom, except such as are now capable, by the
‘ laws of this kingdom, to elect or to be elected as Commissioners for shires, or,
• burghs to the Parliament of Scotland.’ ... ºf
This act was solemnly declared to be of the same force and effect as if it had
been engrossed in the treaty of Union itself; and it is the clause just now re-
cited which must guide the determination of the present question. The law of
Scotland is to be considered as it then stood. We are to pay that regard to the
minute in the case of Tarbat, and to the report of the Committee in the case
of Livingston, which would have been due to them at that time; and be.
eause they happen to be now fourscore years old, we are not to give them any
farther credit upon that account. Even when these cases were but recent, they
had no weight with a decided majority of the Union Parliament; and surely
we cannot pay more regard to them at this day, than was given to them then,
by those who were best acquainted with them, and had the most indubitable:
No I I 7.
162 MEMBER or PARLIAMENT. Div. IV.
No 1 17.
access to know by what authority, or by what private views they had been oc-
casioned, and upon what grounds in law they had been founded.
As to the argument founded upon disuse, there are to be considered, Imo,
The evidence of the alleged fact; 2do, The legal effect of that fact; and, 3tio,
viewing it as any presumption of the right having been legally taken away,
How far the disuse can be accounted for, so as to exclude any supposition of
that kind. The first and the last of these have been already considered, and
it remains only to say a few words as to the second. - -
By the law of Scotland, there is no doubt that certain private rights may,
mon utendo, be lost by the negative prescription ; but at the same time these
must be rights in which two parties are interested, and where, while the one
loses his claim, the other obtains an immunity from it. In all cases, however,
where the right is of a different kind, and concerns the privileged person only,
without directly affecting others, or, in other words, when it is what is termed
res mera facultatis, no lapse of time can diminish or take away the right. This
principle is well explained by Lord Kames in his Elucidations, art. 33. p. 248.
See also Mr Erskine, book I. tit. I. § 46. - - .
In England, there have occurred many instances of burghs claiming, and be-
ing allowed to send members to Parliament, although they had neglected to
exercise that right for a very long course of years. The burgh of Ashbur-
ton in Devonshire, made its first election and return of burgesses 27th Edward
I, in the year 1299 ; but thereafter neglected their right till 8th Henry V. in
the year 1420, when they again returned burgesses, after a disuse of 120 years.
The burghs of Agmondesham, of Wendover, and of Great Marlow, did each
of them repeatedly send representatives to Parliament before 3d Edward II. but
thereafter discontinued to exercise their right for no less than four hundred
years; and after this, they were, upon their petition, anno 2 ſ. 7ac. I. admit-
ted to their right. The burgh of Cockermouth sent burgesses anno 23d Edward
I. but thereafter sent none till the year 1640, in the reign of Charles I. ; Pryn-
ne’s Brev. Parl. Rediv. p. 225, 226, &c. Willir Notitia, Parl. Pref. p. I5.
In Scotland, the greater part of the lesser Barons had so long neglected their
right of coming to Parliament, that when, in 1560, they came to claim their
seats, they deemed it necessary to present a petition to the Peers, asserting their
ancient right, and desiring to be admitted ; and accordingly the justice of their
claim was acknowledged, and they were received, as Randolph expresses it,
without any contradiction. The county of Kinross had, for a long course of
years, neglected to send a representative to Parliament; but in 1681 they re-
sumed their right, and their Commissioner was immediately admitted ; Wight's
Elect. Law, p. 468.
The eldest sons of the Peers in England had so very long neglected their
right of sitting in Parliament, that, in 1549, it seems to have occurred as a
doubt, how far Sir Francis Russel, upon his father becoming Earl of Bedford,
SECT. I. - MEMBER of PARLIAMENT, I61
could continue to sit ; but the Commons determined that he should abide in
the House, in the state he was before; Hartsell's Preced. p. 12. 13. There is
reason to believe, that, after anciently exercising their right, the eldest sons of
Peers had come to neglect it, when sitting in the House of Commons was yet
of little value; but by the year 1549, the Commons had come to be of consi-
derable importance; See Prynne'ſ Brev. Parl. Rediv. p. 23, 48, 58. &c.
If the evidence and the arguments which have been stated, would, in the
year 1707, have been sufficient to establish the right of the eldest sons of Peers,
it may with safety be affirmed, that since that period there has nothing passed
which can take away that right, nor which can be allowed to weigh with a
court of law in determining the question. There has occurred, neither any
statute, nor any decision of a court of law, precluding the eldest sons of Peers
from their right; and with regard to the vote or resolution of the House of
Commons in 1708, it was attended with circumstances extremely peculiar. If
the question had been discussed with dispassionate candour, and if the evidence
which the present investigation has brought to light, had been then laid before
that Honourable House, there is little doubt that the resolution would have
been the reverse of what it was.
It has been already mentioned, that, at the general election after the Union,
no fewer than eight eldest Sons of Peers offered themselves as candidates for
counties and districts of burghs in Scotland. Of these, four were successful §
and being returned Members, petitions against the returns were presented. In
these petitions, it is remarkable that not a law was pointed out, nor even alleg-
‘ed, against the right of the eldest sons of peers, nor any evidence either offered,
or so much as alluded to, excepting the suspicious entry in the case of Tarbat
in 1685, and the very dubious report of the committee in the case of Living-
ston in 1689. Indeed, the petitionérs, upon that occasion, sufficiently knew
the prejudices then generally entertained against the Nobility of Scotland; and
they trusted therefore, more to their cry against the Scottish Aristocracy, than
to any legal and solid arguments which they could advance; Chandler's Deb.
vol. iv. p. Io9. -
At that time, the Union had produced the most serious discontents in Scot-
Iand, and this encouraged the friends of the exiled family to make an attempt
for recovering the throne. With this view, an invasion was threatened ; and
accordingly the French fleet, with the Son of the Pretender on board, together
with 50oo soldiers, and a great quantity of arms, did actually sail from Dun-
kirk, upon 6th March 1708, for the coast of Scotland, with a design to make
a landing in the frith of Forth. This armament soon reached the frith ; and,
had the Son of the Pretender, with the force which accompanied him, been
landed, it might have been attended with the most serious consequences;
the Nobles and Gentry ready to support his cause, were numerous and power-
ful ; and the people, partly from attachment to the exiled family, partly from
resentment at the Union, were every where impatient to rise in arms. And,
X
for,
No 117.
I62 MEMBER of PARLIAMENT. Div. VI;
No I I 7.
after possessing himself of Scotland, the concerted plan was, that the Pretender
should, with a numerous army, immediately invade England. s.
Together with all this, Scotland was, at that time, almost without troops,
and in a very defenceless condition; but notwithstanding all these circumstan-
ces, it fortunately happened, that the enterprise did not succeed. The French,
fleet returned to Dunkirk, without making any landing in Scotland; and soon
after, a new Parliament was called, and which met in the middle of November
1708. Bishop Burnet says, “the just fears and visible dangers, to which the
‘ attempt of the invasion had exposed the nation, produced very good effects;
• for the elections did, for the most part, fall on men well affected to the Go-
• vernment, and zealously set against the Pretender.” Bp Burnet, Hist. Own
Times, vol. 5. p. 997, and vol. 6, p. 1026.
Such was the state of matters in the end of the year 1708; and when such
was the situation of Scotland, and so many of the Nobles known to be in cor-
respondence with the Court of St Germains, it may easily be judged, how far,
at that time. the question as to the rights of their eldest sons, could be discus-
ed with candour and coolness, in a House filled with Whigs, and under a Whig
administration. - \ - ---
Bishop Burnet says, “ Things went on in both Houses according to the direc-
• tions given at Court ; for, the Court being now joined with the Whigs, they
had a clear majority in every thing ; all elections were judged in favours of
. Whigs and Courtiers, but with so much partiality, that those who had for-
merly made loud complaints of the injustice of the Tories, in determining
• elections when they were a majority, were not so much as out of countenance.
when they were reproached for the same thing. They pretended they were
• in a state of war with the Tories ; so that it was reasonable to retaliate this to .
, them, on the account of their former proceedings; but this did not satisfy
• just and upright men, who would not do to others that which they had com-.
“ plained of, when it was done to them or to their friends.’ Hist. Own Times, ,
vol. 6. p. Ioz6, Ioz7. - - -
Such was the complexion of this Parliament, and such the view in which
their-proceedings, regarding election questions, were held, even by those of the
Whig party who lived at the time, and were disposed to look on their measures
with a friendly, and even a partial eye.
Indeed, in general, much cannot be said in favour of the determination in
election-causes, before the late institution of Committees under Mr Grenville's
act. A respectable author says, “every principle of decency and justice was
• notoriously and openly prostituted, Hatsel's Preced. p. 13. And Indeed such:
an Assembly, from its very constitution, must necessarily be unfit for delibe-
rately investigating and candidly determining questions of right, especially
when attended with any intricacy and nicety. Party influence, political pre-
judices, and various other circumstances, are ever apt to interfere; and if super-
'SECT. I. MEMBER of PARLIAMENT. 163
added to these, there occur some peculiar situation at the time, agitating the No 1 17.
passions of men, and exciting a national alarm, the vote of such an assembly,
in cases where these can operate, must not be entitled to much authority or
respect. -
The resolution of either House of Parliament, however it may determine
the case of the particular individual before them, cannot make law, and much
less a resolution passed at such a period, and when the House neither were,
nor could be possesssd of that evidence, and of those grounds, upon which to
form a judgment, that later researches and more diligent investigations have
since brought to light. Similar to this resolution in the House of Commons in
1708, there passed, not long afterwards, in the House of Lords, the well-known
resolution with regard to the title of Duke of Brandon, then conferred by the
Queen upon the Duke of Hamilton. The same fears and jealousies having
found their way into the House of Lords, had the effect of carrying this reso-
lution ; but, after a course of years, when all these prejudices and fears had
subsided, and when able to judge with dispassionate calmness, that Most Ho-
nourable House did, with dignified and becoming candour, hear the question
again, called the Twelve Judges of England to assist them, and, agreeable to
the unanimous opinion of the Judges, gave their determination in favour of the
claim of the Duke. And surely, if the resolution of the House of Lords in
#711 has been so justly disregarded, the resolution of the House of Commons
in 1708 cannot be entitled to any greater weight. -
As to the case of Lord Charles Douglass in 1755, or that of Lord Elcho in
1787, it is hardly necessary to say any thing ; for they both passed without any
inquiry or discussion, and were rested upon-no other ground than the authority
of the resolution 1708. - s -
Upon the whole, from viewing the constitution and history of Parliament'
during the different periods above mentioned, it appears, with respect to the first
period, that, from the most ancient times, every vassal holding lands immediate-
ly of the Crown had not only a right, but was expressly bound to give his at-
tendance there. The very exceptions introduced by the acts I457 and 1503
confirm this, without there being the least idea of any exclusion of the eldest SOIl
of a Peer, providing he had the requisite qualification in lands. From all this,
their right to sit there may be conclusively inferred; and to remove every
doubt, there is farther invincible evidence of their having actually sat in Parlia-
ment, from as far back as any rolls are extant, down till after the accession of
. James VI. ; and that they sat there in virtue of freeholds, which they possessed
in their own right, is fully established by the record of charters.
If the complainer has been successful in showing this, it is not easy to sup-
pose, that the eldest sons of Peers could be disfranchised of so honourable and
valuable a privilege, without some express and solemn act of the Legislature;
and yet, during all the second period, no such forfeiture of their right is to be }
discovered; either in the act 1587, or in the act 1669, or in that of 1681. On
- X 2
}
I64 MEMBER OF PARLIAMENT. Div, IV.
No 117.
the contrary, the statutes do all and each of them clearly comprehend the eld-
est sons of Peers, under the just and legal description of Freeholders of the
Crown, entitled to elect and to be elected Representatives to Parliament. And
as to the alleged disuse during this period, it has been fully explained and ac-
counted for in Such a manner, as to show that their right was never taken away,
but only neglected to be used when it was deemed of little value.
In short, the right remained perfectly entire at the period of the Union; and
this was clearly the sense and understanding of the Parliament of Scotland in
1707, when they passed the act by which the present question is to be tried.
They justly disregarded the cases of Tarbat and of Livingston; and if such was
held the law in 1707, there surely has passed nothing since, that can possibly
be suffered to affect it. The right must be held at the present day entire; and
it only now remains to restore their just rights to the eldest sons of the Nobles
of this country, and to place them on an equal footing with those of the same
rank in the other part of the island. * º,
In answer to all this, it was contended on the part of the Freeholders, That
although anciently, agreeable to the general plan of the feudal system which had
been introduced into Scotland, every person who held his lands immediately of
the Crown was bound to attend in Parliament ; yet, even from the earliest
times, there appears the dawn of a distinction between the Prelates and Nobles,
and the ordinary libere tenenter or freeholders, who came afterwards to be
more particularly described under the appellation of the small Barons or free-
holders. ‘. . .
With regard to the Peers, or Barones Majores, it is well known, that, in an-
cient times, all, honours and dignities were annexed either to lands or to of.
fices; and that earldoms and lordships in Scotland were for a long time terri-
torial, and passed with the lands erected into a comitatuſ or dominium, is indis-
putable. While matters remained in that state, it is not unreasonable to Sup-
pose, that the Peers gave their attendance in Parliament, not in respect of their
dignities, but in consequence of their holding their earldoms or lordships imme.
diately of the Crown; but although in those days they were not in that respect
to be distinguished from other freeholders; yet after the introduction of personal
honours or dignities, independent of lands, which happened in Scotland at least .
as early as the reign of James I. a considerable alteration in the model of Parlia-
ment must of necessity have taken place.
The Sovereign could be under no obligation to confer such personal dignity,
except upon those who were possessed of landed property; but even supposing
none to have been created Lords of Parliament who were not possessed of landed
estates at the time, there is no ground for concluding, that the heirs were to be
deprived, either of the title, or of any of the privileges attending it, upon their
disposing of the estate which their ancestor held when he was ennobled. Those
who were in this situation would, therefore, sit in virtue of their personal honours.
SEcT. r. MEMBER of PARLIAMENT. 165
er
alone; and hence all the other Peers, although their dignities were at first terri- No 11 7.
torial, would in time come to be blended with the Lords of Parliament, and to -
be considered as sitting in respect of their dignities, which there is some reason
to believe was always the case with the dignified Clergy. This idea must, in-
deed, have been most palatable to themselves, and would, therefore, be cherish-
ed by them, as calculated to create a more marked distinction between them
and the smaller Barons, who sat only in respect of their lands.
The eldest sons of Peers, connected as they were with their fathers' dignities
would, of course, cease to be ranked as part of the small Barons, libere tementer,
or freeholders; and it would be reckoned sufficient, that Parliament was at-
tended by their fathers, who were in immediate possession of the honours, and,
of course, would answer for them. In a small tract, written by Chalmers of
Ormond, who had been a Lord of Session in the time of Queen Mary, and
which was published by him at Paris in the year 1579, there is a remarkable
passage, in which he describes the Noblesse of Scotland, and wherein he says,
* Et combien queen parlant ou escrivant precisement de la Noblesse Escossoise,
‘ on l'entend comprendre seulement ceux dicts Ducs, Comtes, & Seigneurs,
‘ dicts my Lords, avec leur filt airnez, (appelle en Escossois Marters,) excepte
* le fils aisne du Comte de Huntly, nomme my Lord Gordon, at le fils aisne du
• Comte d'Argil, dit my Lord Lorne, toutes fois, leur freres puisnex, et les au-
‘ tres Barrons, avec tous descendus d'iceux, s'ils sont vertueux, et ayent suffi-
‘ samment pour s'entretenir, sont appellez du commun, peuple en Escossois.
* Noble Gentil-men, en Francois Nobles gentils hommer.” From this it would ap-
pear, that, in the time of this author, the eldeſt sons of Peers were classed with
the Noblemen, and that the younger sons were classed with those Barons who
were not Peers. - - - .
While the lesser Barons, who held lands immediately of the Crown, were but
few in number, and those few were possessed of considerable estates, their occa-
sional attendance for a few days in Parliament would not be felt as a grievous
burden; but when, in progress of time, the larger estates came to be split a-
mongst several owners, the burden became more severe. It accordingly appears.
to have been customary, for many of those who were bound to personal atten-
dance, to name procurators or deputies to act for them ; and this practice was,
to a certain degree, checked by the statute 1425, cap. 52. which enacted,
* That all Prelates, Erles, Baronnes, and Freehalders of the King within the
• realme, sen they are halden to give presence in the King's Parliament and
• General Council, fra thinefoorth be halden to compeir in proper persone, and
• not be a procuratour, but gif the procuratour alledge there and prove a lauch-
full cause of their absence.’ -
It was soon afterwards perceived, that, as there was great hardship in com-
elling the attendance of the lesser Barons from every part of the kingdom,
and as it was next to impossible to enforce it, so a meeting composed in that
manner would be too numerous for expediting business: An act, therefore,
166 MEMBER of PARLIAMENT. Div. IV.
No I 17.
passed in 1427, by which the small Barons and free tenants (the old liberete-
menter) were to be relieved of the burden of attending in Parliament, on condi-
tion of their sending two or more wise men from each shire, according to its
size; and that all the Commissioners should have costage from those of their
respective shires, who owed attendance in Parliament. |
It is highly probable, that, in passing this act, James I, who had received
his education in England, intended to put the Parliament of Scotland upon
the same footing with the English Parliament, and to render the Commons a
separate House. This, however, did not take effect, and the statute seems to
have been entirely disregarded. The small Barons neglected to elect Com.
missioners, and were, of course, still bound to give personal attendance. A
new act accordingly passed, 1457, c. 75, providing, ‘That no freeholder un-
* der L. 20 should be constrained to come to Parliament, as for presence, ex-
“cept he were a Baron, or were specially called by the King's officer, or by
‘ writ.’ And in the reign of James IV. another act passed, 1503, c. 78. re-
lieving all Barons and freeholders, whose estates were within Ioo merks of new
extent, unless specially written for by the King; but enjoining all those of a
higher extent to come to the Parliament, under the pain of the old fine.
TNotwithstanding these statutes, the small Barons continued very remiss in
their attendance. During the reign of James III, the nnmber of those who
went to Parliament never but once exceeded thirty, and was often much less.
In the reign of James IV. ten was the highest number; and in some of the
Parliaments of that Prince, not one appeared. In the time of James V. we
find six or seven, and still fewer during the reign of Mary. These, it is like-
!y, attended in consequence of special writs from the Crown.—See Robertson's
History, vol. I. p. 202.-Keith's History, p. 147. .
It accordingly appears, that, when the zeal with which the country Was, irº
general, then actuated towards establishing a Reformation in matters of a re-
ligious concern, produced a Convention of all the different orders of the State,
a doubt was entertained with regard to the lesser Barons having a right to sit
in that National Assembly; and, from a letter written by Thomas Randolph
to Sir William Cecil, the Minister of Queen Elizabeth, upon the Ioth of Au-
gust 1560, it appears that they, on that occasion, presented a petition to the
Lords, the tenor of which sufficiently shows their being apprehensive, that,
from the neglect of their predecessors, they might have lost the right they
formerly had of sitting in Parliament.—Wight, Appendix, p. 42 1.
In a subsequent letter, Randolph gives the following account of the success
of the petition: ‘The matters concluded and past by common consent, on Sa-
‘turday last, in such solemn sort as the first day they assembled, are these,
‘ first, That the Barons, according to an old act of Parliament, made in the
“ time of James I. in the year of God I427, shall have a free voice in Parlia
“ ment. This passed without contradiction.’ -
SECT. 1. MEMBER of PARLIAMENT. 167
Qs
But although a great number of lesser Barons attended this Convention,
which was held without the authority of the Sovereign, they seem to have been
afterwards as remiss as ever; for, from the year 1560 down to I 587, hardly
any of the lesser Barons are to be found attending in Parliament. However
they might be roused and excited upon particular conjunctures, yet, in general,
and upon ordinary occasions, the lesser Barons found themselves of too little ac-
count, to be at the expense of attending an Assembly, where the whole autho-
rity and power were exclusively possessed by the great Nobles and Ecclesi-
astics.
In the proceedings of Parliaments in ancient times, it is in vain we are to
look for either regularity or accuracy. They were assembled only occasional-
ly, when the King found their aid and advice necessary; and although, ac-
cording to strict feudal principles, the immediate vassals of the Crown were
the only proper constituent members; yet this does not seem to have been ei-
ther uniformly or regularly attended to in practice, and while many neglected.
altogether giving their attendance, so, on the other hand, the King seems to
have exercised a power of calling occasionally others, whose counsel. and as-
sistance he wished, although not holding lands of the Crown.
In the rolls which still remain of the Parliaments held in the r 5th and 16th.
centuries, frequent instances occur of persons mentioned there, who could have
no right to sit in that Assembly, unless in consequence of having been special-
ly called by the King. Thus Crawford, in his Lives of the Officers of State,
in speaking of Bishop Elphinston, in the reign of James III. says, P. 48. ‘Upon
• the reputation of his parts and learning, the King called him to his Great
• Council the Parliament, where we frequently find him a sitting Member, ,
‘ sure not in the character of his office, as Official of Glasgow or of Lothian,
‘ but allenarly by virtue of the King's calling him there by his Royal letter
“ or summons: A prerogative we see the Crown reserved to itself, when King
dance in Parliament. That the Sovereign exerted this power of calling what
& Barons, and the Commissarii Burgorum, as the burroughs are called, sitting -
‘ and voting in Parliaments, but even Gentlemen who never pretended to .
• peerage; yea, and sometimes, as in the present case, the Official of Glasgow,
• the Grand Council of the nation.’ -
From finding, therefore, certain persons mentioned in the rolls of Parliament,
we can by no means with any certainty conclude, that they sat there in their
James II. thought fit, in the case of the Barons, to dispense with their atten-
Barons or inferior Clergymen he pleased to the Parliament, manifestly ap- -
pears from our public archives throughout the whole of the reign of James
• III. and James IV. ; for there we find not only Bishops, Abbots, Priors, Earls,
sometimes the Dean, and the Archdeacon of that See, and such other inferior
& Clergymen, who cannot be imagined came there upon any consideration
whatsoever, but that the King called them there as wise and learned men,
whom he knew were well qualified to give him advice upon any juncture in
No 117.
I68 MEMBER of PARLIAMENT. IXIV, IV.
No 117.
own right, and in virtue of their holding lands as vassals of the Crown. The
Noble complainer, notwithstanding all his researches, has hitherto failed to
bring clear and positive proof, that such eldest sons did, at any period, sit in
the Parliament of Scotland, in virtue of their being possessed of lands held of
the Crown, and of their making part of the freeholders, or libere tenenter. He .
does not pretend to have discovered any eldest sons of Peers, (to all of whom,
in ancient times, the appellation of Maſter was indiscriminately given, as it
was likewise even to all their presumptive heirs, whether by blood or destina-
tion,) in the rolls of Parliament prior to the year 1478. His Lordship has, in-
deed, found about thirty-two or thirty-three Masters in the rolls of Parliament,
(that are now extant,) between that period and the year 1587, when the re-
presentation of the lesser Barons, or freeholders, was established; but as no evi-
dence has been produced to show, that more of these Masters than twelve, or
thirteen at most, were possessed of lands held by them of the Crown, so it does
not appear, that they ever sat in the character of freeholders, or lesser Barons,
On the contrary, there are strong reasons to presume, that this was not the
case; for, 1ſt, These Masters are in no one instance described by their lands;
whereas the lesser Barons are in the rolls of Parliament uniformly so described.
2dly, Some of them might have attended as proxies for their fathers. It is indeed
proved by the act 1425, cap. 52. that proxies were allowed even for freeholders.
3dly, Their sitting in the character of lesser Barons or Freeholders is inconsistent
with what passed at the famous Convention in 1560, as the doubt which then
arose respecting the right of the lesser Barons to attend in Parliament, and their
petition to be restored to that right, never could have existed, if those Masters,
who are to be found in some of the rolls only a few years before, had been
understood to have sat in virtue of their lands, and in the character of lesser
Barons or Freeholders. Nor is it any answer to this, that other lesser Barons are
likewise to be found in the rolls of Parliament. They likewise may have attend-
ed in consequence of a special summons from the Crown, which is surely more
probable, than that the whole body should know so little of their own rights as
to present a petition for the purpose of obtaining an acknowledgement of what
they had always enjoyed, and of which they were actually in possession at the
time. . +
The presumption therefore is, that all those Masters who appear in the rolls of
Parliament, attended only as proxies, or in consequence of their being called by
special writ; and this presumption is strongly confirmed by the constant usage
which took place from the time that the representation of counties was establish-
ed in 1587, down to the period of the Union. -
It has been contended, That the power of calling by special writ, reserved to
the King by the acts of 1457 and 1503, was only meant to apply to those whose
constant presence was thus dispensed with, and that it would have been adverse
to the idea of Parliament, as well as an insult to the dignity and privileges of
w
Sect. 1. MEMBER of PARLIAMENT, I69
.*
those who sat there, to introduce amongst them any person who was not a No 1 I 7.
tenant in capite of the Crown. i
This observation stands however unsupported by evidence of any kind. It
ought to be remembered, that, in those days, attendance in Parliament was
considered, not as a privilege bestowed upon, but as a burden inherent in, a
certain tenure. Why, therefore, presume the King restrained from requiring
the assistance of any of his subjects in his Great Council, but those who were
possessed of landed property held immediately of the Crown It is more rea-
sonable to suppose, that his prerogative entitled him to lay that burden upon
any person he chose to summon; and it is at least probable, that, in the exer-
cise of this prerogative, he would call upon persons high in point of rank, or
of consequence in other respects.
It is no doubt true, that those Masters, who, upon the authority of Randolph's
letter to Sir William Cecil, (for there is no other), are said to have attended
the Convention of Estates in 1560, could not have been summoned by the
Crown, that Convention having assembled without the Royal authority. But
laying out of the question, that one of the five Masters, whose names are to be
found in the list, (viz. the Master of Lindesay), was not the eldest son of a
Peer, it must appear sufficient to observe, that the Convention was called by
those who took the lead in the conduct of affairs, in consequence of an article
in the treaty of Leith, while the importance of the business then in agitation,
would render any person of consequence welcome to a National meeting held
independent of the Royal authority. It is accordingly worthy of remark, that
"Randolph in his letter to Cecil, after giving a particular list of Clergy, Nobles,
Peers eldest sons, Commissaries for Burghs, and lesser Barons, adds, “ with
• many other Barons, Freeholders, landed men, but all armour.’
But even supposing that the eldest sons of Peers, as well as every other per-
son holding lands immediately of the Crown, were not only entitled, but bound
to attend in Parliament; and further, supposing it true, that they did actually
attend in that character down to the year 1 587, when the representation of
the lesser Barons was established; yet it is an undisputed and incontrovertible
fact, that, from that period down to the presery day, there is not a single in-
stance to be found, of the eldest son of a Scottish Peer representing either a
Scotch county or burgh in Parliament. It cannot be supposed that this could
proceed from mere accident. Considering attendance in Parliament as a bur-
den, it must have been natural for the freeholders to impose it upon them, as
most able to bear it; and, considering it as a privilege, they would, in all pro-
bability be disposed to court it. The fact can therefore only be rationally
accounted for, by supposing it to have been understood to be a constitutional
point, that they were ineligible, on account of their intimate connection with
a higher order in the State, and of which they seem, from the passage above
referred to in the work of Chambers of Ormond, to have been understood to
make a part.
Y
* * * *
1jo MEMBER or PARLIAMENT. Div. Iv.
No 117.
In order to assign some reason for the total absence of the eldest sons of
Peers from Parliament after the representation of the lesser Barons was esta
** * * * -
blished, it was said, that, to be the delegated deputies and hired messengers
of such inferior persons, could but ill befit the gallant sons of proud and inde-
pendent nobles. This however is not altogether consistent with the founda-
tion of the complainer's plea, which rests entirely upon their being bound to
attend, by being lesser Barons or Freeholders; the consequence of which ..
must have been, to put it out of their power to refuse that burden, when im-
posed upon them by the other freeholders. The conclusion drawn from their
haughty spirit will, at the same time, appear to be better founded, when ap-
plied to a more ancient period, when all the lesser Barons, except those of the
smallest estates, were upon the same footing. The eldest sons of Peers might
then wish to keep themselves distinguished from an order of men, whom they
considered to be greatly their inferiors. On that account they would be un-
willing to appear in Parliament, unless in the character of proxies for their
fathers, or when summoned by special writ; and hence it came to be under-
stood, that although possessed of lands held immediately of the Crown, they
did not belong to the order of freeholders, and therefore were not bound to
come to Parliament; the more especially as, after the introduction of personal
honours, their fathers were considered to hold their seats by virtue of their dig-
nities, and not of their possessions, as in more remote ages. - , , -
That the act 1587 was understood to exclude the eldest sons of Peers from
sitting in Parliament, there is also much reason to presume, from the general
dissatisfaction which this statute gave to the Peerage. They were sensible that
it would have been inconsistent with the form into which Parliament was then
moulded, for the King to continue to summon any person by special writ; and
they saw that when the load was to be taken off the whole body of the free-
holders, and two only were to come from each county, and these two were to
be allowed a certain sum for defraying their daily expense, the attendance of
the Commons would be more regular and numerous, and of course their own
Parliamentary influence would be much diminished. But of this they must
have had less apprehension, if it had been understood, that their eldest sons,
who were to succeed them in the Peerage, were capable to be chosen Commis-
sioners, from shires. -
This presumption is farther confirmed by a minute of the Parliament of
Scotland, 18th August 1681, containing a letter from Charles II. to the Duke
of York; in which, after stating that the county of Kinross had been repre-
sented in Parliament until it came almost entirely to belong to two Peers, the
Earl of Morton and the Lord Burleigh, his Majesty proceeds as follows: “But
• that now Sir William Bruce of Balcaskie having acquired the Earl of Mor-
• ton’s interest, (which is far the greatest part of the shire), and having like-
' wise a commission from the rest of the freeholders thereof, doth crave, that he
may represent that shire in Parliament, according to former custom founded
‘ upon the said act and records: And we being well satisfied with the dutiful
SECT. 1. e MEMBER or PARLIAMENT. #71
6 deference shown to us by the said Sir William in the prosecution of that his No 1 1 7.
, right, it is now our will and pleasure, and we do hereby authorise and requireyou,
“ to cause him to be enrolled and called in this Parliament, to the effect the said
shire may enjoyits old privilege of being represented in Parliament by its Barons.”
If the eldest son of a Peer had been capable of representing the Commons in
Parliament, it can scarcely be doubted, that one or both the noble Lords who
divided the shire of Kinross between them, would from time to time have
taken care that their eldest sons should have lands of 40s. of old extent, in
order to represent the county; for, though confidential conveyances were at
that time unknown, a father could have been under no difficulty, in such cir-
cumstances, to divest himself of a part of his estate in favour of his eldest son
and presumptive heir. 4.
It is in vain the complainer resorts to the different statutes relative to the
election of Commissioners from shires, to shew, that under the words Freehold-
ers, Heritors, &c. occurring in these statutes, the eldest sons of Peers who were
infeft in lands held in chief of the Crown, must have been included. Custom
is the best interpreter of the words made use of in an act of Parliament, and
under such a guide we must with certainty discover, Whether a particular ex-
pression, or term, has been adopted in the view of including all who can pos-
sibly be comprehended under it, or only in a more limited sense. Had any
usage prevailed of eldest sons of Peers representing counties in the Parliament
of Scotland subsequent to the act 1587, it might have been more difficult to
maintain that they were not included under the general terms of Freeholders,
Heritors, Liferenters, Wadsetters, &c. that appear in these statutes. There is
however good reason to presume that the legislature, in passing these statutes,
had no idea of including them under these general terms; and it is scarcely
necessary to add, that some of these statutes are very far from being correct and
accurate in the form of expression. gº
Even, therefore, if the present question was left to rest upon the statute-law,
and upon the usage, from the year 1587 down to the period of the Union, it
would be sufficiently clear. But farther, it does not even rest here; for every
doubt is removed by two explicit determinations of the Parliament of Scotland
itself, the one in the case of the eldest son of the Viscount of Tarbat in 1685,
and the other in the case of Lord Livingston in 1689. -
Sir George Mackenzie was created Viscount of Tarbat, by letters-patent,
bearing date the 15th of April 1685. His eldest son had been returned one of
the Commissioners for the county of Ross; but it was determined that he was
now incapable of sitting, and the following resolution appears in the records.
April 23d 1685. “In respect the Viscount of Tarbat's eldest son, elected one
‘ of the Commissioners for the shire of Ross, by reason that his father is nobi-
‘litate, cannot now represent that shire, warrant was given to the feeholders
* of that shire to meet and elect another person in his place.’ Accordingly his
name does not appear in the roll; and the Commissioners for the shire of Ross
are Sir George Munro of Culcairn, and Sir Donald Bayn of Tulloch.
Y 2
172 MEMBER of PARLIAMENT. DIV. IV.
No 117.
Those who composed the Parliament of Scotland in 1685, must have been at
least as well qualified to judge of a question regarding its constitution, as even
the most enlightened antiquaries of the present age. But the resolution above
inserted, with regard to the incapacity of the eldest son of the Viscount of Tar-
bat, shows it to have been then a settled point, that the eldest sons of Peers
were ineligible. This resolution must also have the greater weight, when it is
considered, that it was not formed in a controverted election, which, according
to the practice, would have gone before a Committee appointed to try such
cases, but was taken up by Parliament itself. And it is in vain the complainer
attempts to derogate from the force of this precedent, either by abusing the Vis-
count of Tarbat, as the defender of the proceedings that took place in the pre-
ceding Parliament, when the Duke of York acted as Commissioner for his Royal
Brother; or, by conjecturing, that, as it was not a time for urging unpopular
topics, especially in the case of a son of an obnoxious minister, the Viscount
chose rather to withdraw his son from Parliament, than to try the question. It
is well known, that the Viscount of Tarbat stood at that time high in favour
with King James; and although the arbitrary measures that were afterwards
adopted by that Monarch, soon proved ruinous to his family, few Princes were
more popular at the time of their succession. It is therefore impossible to be-
Jieve that the Viscount of Tarbat could have any inducement for withdrawing
His son from Parliament on this occasion, or that the seat of the son would have
been vacated in this manner, if it had not been understood to be perfectly clear,
that the ennoblement of the father did, ipso facto, disqualify him from holding it.
On occasion of the memorable Convention of Estates, which convened in
1689, to settle the government of the kingdom, an attempt was made by Lord
Livingston, the eldest son of a Peer, to be chosen as the Representative of the
Burgh of Linlithgow. It accordingly appears, that after William Higgins had
been chosen and declared duly elected, his Lordship prevailed with the com-
mon clerk of that burgh to call a new meeting for election, and to return him
also ; but the merits of the election were decided in favour of Higgins. And it
is remarkable, that although he omitted to state his antagonist's disqualification,
contenting himself with averring that he had a majority of legal votes in his fa-
vour, and that the clerk had been guilty of a gross irregularity, not only in ad-
Initting bad votes for the Noble Lord, but also in holding a second election, af.
ter Higgins had been chosen to represent the burgh; yet the Committee of Con-
troverted Elections, unwilling to allow the ineligibility of the eldest son of a
Peer to pass unnoticed, came to the following resolution.—March 18, 1689.
In the controverted elections for the Burgh of Linlithgow, in favour of the
* Lord Livingston and William Higgins, it is the opinion of the Committee,
,' that William Higgins's petition should be preferred; Ist, In regard of the
* Lord Livingston's incapacity to represent a burgh, being the eldest son of a
* Peer ; and 2dly, In respect William Higgins was more legally and formally
elected by the plurality of the votes of the Burgesses.’ This resolution was
approved of, and signed the same day. “ The Meeting of the Estates, having
SECT. I. MEMBER or PARLIAMENT. * 173
... heard and considered the report of the Committee, they approve of the same
* in both heads thereof.” 3. -
The complainer has in vain attempted to invalidate the force of this resolu-
tion. The circumstance on which he chiefly founds, namely, that the memo-
rial or case for Mr Higgins, takes not the smallest notice of the ineligibility of
Lord Livingston, as the eldest son of a Peer, serves only to show, that the Com-
mittee who tried the question, were too attentive to the constitution, to allow
the Noble Lord’s ineligibility to pass unnoticed, even in a case where there were
other good grounds for deciding in favour of the other candidate.
These two precedents aré most precisely in point, and clearly shew, that by
the constitution of the Scottish Parliament, the eldest son of a Peer was held in-
eligible for either a county or a borough. And if this be the case, there is an
end of the question ; it having been enacted by the act 1707, cap. 8. which
was declared to be as valid as if it were a part of, and engrossed in the treaty of
Union, ‘That none shall be capable to elect or to be elected to represent a
shire or burgh in the Parliament of Great Britain, for this part of the united
• kingdom, except such as are now capable, by the laws of this kingdom, to
• elect or to be elected Commissioners for shires or burghs to the Parliament of
• Scotland.’
The noble complainer has endeavoured to derive some aid from the minutes.
of the Parliament of Scotland upon that occasion. From these it appears, that,
24th January I 797, it was proposed that “Thirty shall be the number of the
• Barons, and fifteen the number of the burghs, to represent this part of the
• united kingdom in the House of Commons in Great Britain ; and that no Peer,
, nor the eldest son of any Peer, can be chosen to represent either shire or burgh
in this part of the united kingdom, in the said House of Commons.” The
question was accordingly put, “If the number shall be thirty for the Barons,
and fifteen for the burghs?” which was carried.
The House then adjourned till the 27th of the month ; and the second part
of the clause relative to Peers and their eldest sons, being again read, it appears
from the minutes, that, after a debate thereon, another clause was offered in
these terms. ‘Declaring always, That none shall elect nor be elected to repre-
... sent a shire or burgh in the Parliament of Great Britain, from this part of the
• united kingdom, except such as are capable, by the laws of this kingdom, to
... elector to be elected as Commissioners for shire or burgh to the said Parlia-
• ment.’ And after further reasoning thereon, the vote was stated, Approve
of the first clause, or of the second.” Before voting, however, it was agreed.
that the votes should be marked, and that a list of the members’ names, as they
voted, be printed and recorded ; and the Lord Chancellor was allowed to have
his name printed and recorded amongst those who voted for the second.
clause. Then the vote was put, “Approve of the first clause or second;’ and .
it was carried, Second.” -
From all this, the complainer is pleased to suppose, that the question with-
regard to the eligibility of the eldest sons of Peers, was held to be at least doubt.
No 117.
#74 MEMBER or PARLIAMENT Div. IV.
No 117.
ful; but the smallest attention to what generally passes in popular assemblies,
will show, that there is nothing solid in the observation. The first motion, That
Peers and their eldest sons were incapable to elect or be elected, would no doubt
have been more satisfactory than the second, which, without any express de-
termination, left matters as they stood : But it does not follow, that they were
then deemed capable of electing, or being elected; on the contrary, the propo-
sers of the first motion must have expected to carry it. Indeed, it was only lost
by a majority of eighty-six to seventy-two, while the Peers did not venture to
put the direct question, That they themselves, or their eldest sons, were eligible.
Each party, as is uniformly the case in such assemblies, wished to carry the mo-
tion most decisively in their own favour : And there is a palpable defect in the
inferences drawn by the complainer; for, if they prove any thing at all, they
prove too much.
Every argument, which, from the double state of the question, has been
drawn in favour of the eldest sons of Peers, is equally applicable to their fathers;
and yet it will not be said, that, at that time of day, there was any idea, that,
in the Parliament of Scotland, Peers were entitled to sit as the Representatives
of the Commons. Besides, the first motion was only directed to a particular ob-
ject, and must have been followed up by other resolutions, in order to settle
who were qualified to elect or be elected. It was therefore more proper to form
one general resolution, which, in a few words, would settle the whole at once s
and it was so framed as to leave no doubt. Peers might likewise be averse to
declare their eldest sons expressly excluded, lest it might prove an exomple for
excluding them from seats in England. - - -
But farther, could there have remained any doubt as to the ineligibility of
the eldest sons of Peers to represent a Scotch county or burgh, it is removed by
the resolutions of the House of Commons, in the cases of Lord Haddo and other
persons in the same situation, in the year 1708. It is a mistake to suppose that
these resolutions were carried in any hasty or precipitant manner. In a book
printed in the year 1709, and entitled ‘The History of the Reign of Queen
* Anne, digested into Annals, it is mentioned, that Mr Serjeant Pratt, Mr Phipps,
Mr Raymond, and Mr Lutwich, were heard as counsel; and it gives an ab-
stract of the arguments which were urged. In particular, the resolutions of the
Parliament of Scotland respecting the Master of Tarbat in 1685, and the Lord
Livingston in 1689, were much relied on ; so that there can be no pretence for
saying, that the House of Commons proceeded without the fullest information,
and the most attentive consideration of the case. + -
In that collection, which goes under the name of Lord Somers' Tracts, vol. 1 5. .
x. 5. p. 76. there is a paper entitled, “The Case of the Commons of that part
• of Great Britain formerly called Scotland, with respect to the Election of their
* Representatives and Members to Parliament.’ It would seem to have been a
paper distributed at the time of the question before the House of Commons in
1708. It states, verbatiºn, another paper then distributed, in support of the
SECT. 1. MEMBER or PARLIAMENT. #75
right of the eldest sons of Peers, and then gives answers to every thing that had
been there urged. . - - * * * c
In the paper for the eldest sons of Peers, much weight had been laid upon
the vote of the Parliament of Scotland in 1797, which has been above men-
tioned ; and, in answer to this, it is, amongst other things, said, “But, in the
“ next place, it is to be remembered, that, in the Parliament of Scotland, held
“ in the year 1690, ‘though the Peers did press very earnestly to have it de-
“ clared that the eldest sons might be capable to elect and be elected at that
“ time, when there was an additional representation granted to several shires in
“ Scotland, ‘they could not prevail; on the contrary, the act passed without
‘ any such declaration.” The truth of this important fact, indeed, rests en-
tirely upon the authority of the paper referred to ; but the assertion, unless true,
($*
could scarcely have been hazarded in the year 1708, when the transactions of
so recent a period as the year 1690, must have been fresh in remembrance.
In short, as the resolutions of the House of Commons in 1708, went the
length of declariig, that the eldest sons of Peers of Scotland were incapable, by
the laws of Scotland at the time of the Union, to elect, or be elected, as Com-
missioners for shires or burghs to the Parliament of Scotland, and therefore, by
the treaty of the Union, were incapable to elect or be elected to represent any
shire or burgh in Scotland, to sit in the House of Commons of Great Britain, it
is humbly conceived, that, independent of every other consideration, these re-
solutions must afford an effectual bar to the complainer's claim to be admitted
to the roll of freeholders of any county in Scotland ; more especially, as, by the
act of 2d George IIt. cap. 24. it is expressly enacted, ‘That such votes shall be
• deemed to be legal, which have been so declared by the last determination in
• the House of Commons ; which last determination, concerning any county,
city, burgh, cinqueport, or place, shall be final to all intents and purposes
f
whatsoever, any usage to the contrary notwithstanding.’
- r * - -
The matter has accordingly ever since been understood to be completely
settled ; and it is so stated by every author who has since written upon this
branch of the law of Scotland; by Forbes, p. 21. ; by Spottiswoode, p. 49, and
59.; by Lord Bankton, b. 4. tit.1. § 41. ; and by Mr Wight, p. 269. No.
attempt has been made since the year 1798, by the eldest son of any Peer of
Scotland, to represent in Parliament the Commons of that part of the united
kingdom; and in every instance that has occurred of , a representative, either
of a county or of a district of burghs in Scotland, becoming the eldest son of a
Scottish Peer, his seat has been understood to be vacated, and a writ has issued
for the election of a new Member of the House of Commons in his place. The
attempt, therefore, on the part of the complainer, to revive a claim in behalf of
himself and others of his order, to a right which they confessedly have not
enjoyed for upwards of two centuries, and which it is not proved they ever
enjoyed, will meet with no countenance, especially when in direct oppostion.
to repeated resolutions of the whole body of the Scottºh Parliament; and of
the British House of Commons. . . .
No I I7,
176 MEMBER of PARLIAMENT. Div. IV.
No 117.
No 1 18.
No 1 19.
‘The eldcst
son of a Bri-
tish Peer
may be en-
rolled among
the freehold-
€rs of Scot-
land.
*
g \
The interlocutor of the Court, 25th January 1792, was in these words:
“THE LORDs having resumed the consideration of the petition and com-
plaint of the Right Honourable Bazil William Douglas, commonly called Lord
* Daer; and having advised the same, with the answers thereto by the Honour-
able Keith Stewart, and others, freeholders of the county of Wigton, replies
for the complainer, duplies for the respondents, and writings produced; and
‘having heard parties procurators upon the whole, they sustain the objection to
the complainer's claim to be enrolled; find the freeholders of the county of
Wigton did right in refusing to enrol him; and therefore dismiss the com-
plaint, assoilzie the respondent, and decern : Find the complainer liable to the
respondents in the statutory penalty of L. 30 Sterling, and decern against him
therefor: Find him also liable in full costs of suit, and appoint an account
thereof to be given in to Court.”
For Lord Daer, Dean of Faculty, Solicitor-General, Cullen, Morthland, et Cha. Hope.
For the Freeholders, Wight, Geg. Ferguson, Montgomery, et Buſhby Maitland. Clerk, Hume.
£3. Fac. Col. (APPENDIX.) No 4. p. 16.
*** This case was appealed :
THE House of Lords, 26th March 1793, ‘ ORDERED and abſubord, That the
appeal be dismissed, and the interlocutors complained of be affirmed.'
ſº
—mº º-
1796. February 24. MACKAY against Houstos.
IN the county of Sutherland, where enrolment is competent on lands held of
a subject superior, the freeholder having refused to enrol a claimant, in respect
his charter had been granted by a factor loco tutoris, for the Superior, who was fa-
tuous; it was urged, That such act was beyond the ordinary powers of a factor,
and moreover his nomination by the Court of Session had not been produced.—
THE LORDs, on a complaint, ordered the claimant to be enrolled.—See APPENDIx.
Fol. Dic. v. 3. p. 417.
;"
18oz. March 9.
Honourable GEORGE ABERGROM EY againſt SPEIRs, and other Freeholder of
Stirling. g
*
THE freeholders of the county of Stirling having refused to enrol the Honour-
able George Abercromby of Tullibody, advocate, because he was the eldest
son of a British Peeress, he presented a complaint to the Court of Session, and
Pleaded ; From the earliest periods of the Scottish Parliament to the reign
of James VI, it appears, that every vassal of the Crown was entitled to a seat
SECT. T. MEMBER OF PARLIAMENT. º
177
in Parliament; and as in those days the honour of a seat in the Great Council
of the nation was conceived to be greatly counterbalanced by the hardship of
attendance, the various statutes which, from time to time, were passed during
that period, with respect to the constitution of Parliament, were framed either
for the purpose of inforcing the attendance of all, or of dispensing with the
presence of those vassals of the Crown, whose estates were too inconsiderable
to make it easy for them to defray the expense of attending. Eldest sons of
Peers, if they possessed lands holding immediately of the Crown, were nowise
exempted from the duty, of giving suit and presence in the King's Great
Council, to which they were bound, by the tenure by which they held their
estates. And accordingly, from the rolls of Parliament, it appears, that the
eldest sons of Peers attended upon many occasions. They did not appear as
proxies for their father ; for there are instances of a Peer and his eldest son
sitting in the same Parliament; and as they often seem to have attended
during the minority of the Sovereign, the presumption is, that they were not
called by special summons, but that they sat like other Barons, in virtue of
their freeholds, as vassals of the Crown. The act 1587, c. 114. which intro-
duced the representatives of the minor Barons, neither directly nor indirectly
altered the situation of the eldest sons of Peers, who must be conceived to
have been left with the same privileges with which they were invested before
that enactment. Nor do any of the acts of Parliament, from that time to the
Union, deprive the eldest sons of Peers of voting upon their freeholds; on the
contrary, the act 1661, c. 35. confers that right in the most general terms
upon all heritors holding lands of a certain extent, with the exception only of
noblemen and their vassals. In point of fact, however, it does appear, that.
from the passing of the act 1587 to the year 1685, no instance is to be ſound
of the eldest son of a Scottish Peer having a seat in the Parliament of Scot-
land. In that year, an attempt was made by them, in the case of the
Viscount of Tarbat, and afterwards in 1689, in the case of Lord Living-
ston, (See p. 157.) to be returned as Members of Parliament, both of which
were unsuccesssful. These cases were decided, not upon the common or
statute law, which afforded no disqualification, but upon the general under-
standing of the nation at large, of the Peerage, and of their eldest sons, as
displayed by the disuse of that privilege, ever since the act 1587, which gave
in some measure a new form to the Scottish Parliament, by the introduction
of representatives. *
By the treaty of Union, it was provided, ‘That none shall be capable to
• elect or be elected to represent a shire or burgh in the Parliament of Great
• Britain, for this part of the united kingdom, except such as are now capable
by the laws of this kingdom to elect or be elected Commissionels for
• shires or burghs to the Parliament of Scotland.’ In consequence of the
above clause, it has been found, first in the case of Lord Charles Douglas
in I 755, again, in the case of Lord Elcho in 1787, (See p. 16 ſ.) and, last
No 1 . .
178 MEMBER of PARLIAMENT. Div. IV.
No I I Q.
of all, in the case of Lord Daer, 24th January 1792, No 117. Jupra.
that the eldest sons of Scottish Peers were incapacitated from voting for Scot-
tish representatives to the British House of Commons. The investigation
which took place in that latter case, which underwent the most ample discus-
son, established beyond doubt, that every free tenant of the Crown was ori-
ginally entitled to a seat in Parliament; that in conformity with this, the eldest
sons of Peers, who happened to hold lands in capite of the Crown, were in use
to attend ; that the act 1587 did not introduce any new incapacity against
them, and that they lost their right merely by the negative practice or disuse
between that period and the Revolution.
But while it must be admitted, that in consequence of these judgments, the
eldest sons of Scottish Peers cannot be entered upon the roll of freeholders, it
does by no means follow, that a similar disqualification is to be extended to the
British Peerage. Every disqualification, by which a person is prevented from
the exercise of any right, and especially from the privilege of elective fran-
chise, demands a strict interpretation, and is not to be extended by implication
or analogy. As it has been by disuse alone, and not by common or statute
law, that the eldest sons of Scottish Peers were disqualified, it must be shown
by those who object to the claimant's right, either that the eldest sons of Bri-
tish Peers have also lost their right to elective franchise, by a similar disuse, or
that they are excluded by some express statute. If they are not able to esta-
blish one or other of these points, the complainer, who is possessed of a qua-
lification, in other respects unexceptionable, is entitled to a place in the roll of
freeholders. gº
Even if analogy were allowed to afford a sufficient ground of disqualifica-
tion, it must hold in a much stronger degree in the case of the grandson and
heir apparent to a Scottish Peer, who unquestionably falls , under the general
spirit and intention of the disqualification; yet so strong is the principle of
such exceptions, being strictissime faris, that the grandson and heir apparent
of the Earl of Sutherland by a deceased eldest son, not only stood upon the
roll of freeholders, but for many years previous to 1733 sat as Representative
for the county of Sutherland in the British Parliament. The clause in the
articles of Union merely declares, that none shall be capable to elect or be
elected, “except such as are now capable ;” which can only apply to the
Peers of Scotland as they stood at that time ; for, as the power of conferring
the privilege of a Scottish Peer no longer exists in the Sovereign, he can
never, by conferring a different honour, impose the Corresponding disqualifica-
tions.
With respect to the argument arising from disuse, it was strongly contended,
that the practice, so far from being against the right of the complainer, was de-
cidedly in his favour, and that the eldest sons of British Peers not only were in
Secr. I. MEMBER OF PARLIAMENT. 179
use to be admitted upon the roll of freeholders, but had frequently represented
the counties and the burghs of Scotland. *
Anſwered, It is not necessary to enquire into the early constitution of the
Scottish Parliament to determine the present question. The decision pre-
vious to the Union, in the cases of Viscount of Tarbat, and of Lord
Livingston, clearly show, that whatever might have been their situation
before the enactment of the statute in 1587, from that time downwards the
eldest sons of Peers laboured under a personal disqualificaion. By the articles
of Union, the election law of Scotland is preserved entire, and those only are
entitled to elective franchise in this part of the united kingdom, who at that
time were capable to elect or be elected Commissioners to the Scottish Parlia-
ment. Accordingly, the eldest sons of Scottish Peers, as they were disquali-
fied before the Union, remained in the "same state after it, and neither can
elect, or be elected members of the British Parliament. And so it was found,
after the fullest investigation, Lord Daer contra Stewart and others, January
24, 1792, No 117. supra; which decision being afterwards affirmed by the
House of Lords, all doubt with respect to this disqualification must be consi-
dered to be at an end for ever.
As this is admitted to extend to the eldest sons of all those who have a right
to the privilege of the Peerage, it assuredly comprehends the honourable com-
plainer. It is a mistake to say that the king cannot create a Scottish Peer.
The articles of the Union do not divest him of this prerogative. The separate
privileges of Peerage, which before the Union might have been limited to one
or other of the kingdoms, are indeed at an end. But the Peerages which were
afterwards created, extended to both parts of the united kingdom. A British
Peer being created since the Union, is a Peer of England, and a Peer of Scot-
land; having a right in Scotland to the rank and precedence of nobility, with
the privilege of a seat in Parliament. From the nature of the Union, British
Peers must necessarily possess all the privileges of the Peerage in England;
but these, when added to the privilege of Peerage in Scotland, cannot qualify
their eldest sons to be admitted as freeholders in this country. British Peers
do not vote as Peers of Scotland in the election of the sixteen Peers who sit in
the House of Lords; because, as they sit themselves, there is no use for their
sending Representatives; but although it had been provided in the articles of
Union, that the whole of the Scottish Peers should be entitled to sit in the
House of Lords, it would never have put their eldest sons upon a different
footing with respect to the House of Commons. * -----
* The Honourable Mr Damer, eldest scn of Baron Milton, some time ago represented the
eastern district burghs in Fife. In the Parliament summoned to meet in 1796, the eldest
son of Lord Salterford, sat as Representative for the burghs of Linlithgow, &c. The Honour.
able Laurence Dundas, the eldest son of Lord Dundas, is upon the roll of freeholders for the
county of Fife; and the eldest son of Lord Douglas stands upon the roll of fresholders of La-
aerk and Renfrew.
* Z. 2
No 1 19,
I8o MEMBER OF PARLIAMENT. IDIV. IV.
No 1 19.
No 12c.
The county
collector of
the window-
duties and of
the income-
tax, not dis-
qualified from
voting at e-
lections.
In regard to the fact, that since the Union, the eldest sons of British Peers
have been upon the roll of freeholders, and been elected Representatives for
Scotland in the Brstish House of Commons, the freeholders maintained, that
a few instances of this sort proved only the fact that they did sit, without
establishing their right of sitting. The objection in these cases happened not
to be brought forward; but it might as well be argued, that persons under
age are entitled to sit as Members in the House of Commons, because instances
can be produced of minors who have been allowed to hold their seats without
being questioned
The Court, by a great majority, found, That the freeholders did wrong in
refusing to enrol the Honourable George Abercromby, and Ordered him to be
put upon the roll of freeholders.
It was conceived by one or two of the Judges, that the disqualification ex-
pressed in the articles of Union, should be interpreted as applying not merely
to the eldest sons of the Scottish Peers, as they then stood, but as compre-
hending all those who might afterwards attain to the same ſtatur; and that
there was no substantial difference between a British Peer created now, and
a Scotish Peer before the Union, during that period in which his eldest son
was excluded. But the great majority of the Court seemed to hold, that this
ineligibility in the eldest sons of Scottish Peers was a disqualification peculiar
to their order, and being unfavourable in its nature, was not to be extended
by implication to any other description of persons, than those who were ex-
pressly excluded by the constitution of the Scottish Parliament.
For the Complainer, Lord Advocate Hºpe, Solicitor General Blair, Bruce, Boyle.
Agent, Alex. Abercromby, W. S. For the Respondent, Erikine, Campbeſ/
Aent, R. Hill, W. S. Clerk, Home.
3. Fac. Coll. No 36, p. 73,
------ºne--—
1803. February II. HERON against MAXWELL.
PATRICK HERON of Heron having, as Parliamentary preses at the meeting of
freeholders for choosing the Member for the stewartry of Kirkcudbright, call-
ed the roll for the choice of preses and clerk, declined to count the vote of Mr
Maxwell of Barncleugh, as being disqualified, by the act 22d Geo. III. c. 4r,
because he was collector and assessor of the house and window duties for Dum-
fries-shire, and had also been collector of the income-tax for the same county,
within twelve mánths preceding the election. *
Against this proceeding Maxwell complained.
The Court were unanimous in considering the purpose of the disqualifying
act to be solely to prevent the patronage of Government from influencing elec-
*ons, consequently that its principle and provisions relate exclusively to those
SECT. I. MEMBER of PARLIAMENT. 181
holding appointments immediately from Government, and paid from the pub-
lic treasury; Luder's Reports, vol. 2. p. 541-552; Wight, p. 278.
Mr Maxwell had, for a considerable number of years, by the appointment of
the Commissioners of Supply, or for assessing the land-tax, held the office of
their collector. The same Commissioners were, by 20th Geo. II. c. 3, and the
subsequent acts, appointed to levy the window duties, and the income-tax,
with power to name their collector. From them he held this additional office,
receiving a proportion of the sums collected as his only recompence.
For Maxwell, H. Erskine, Fergusſon, W. Erskine, Campbell jun. Agent, A. Young, W. S.
For Heron, Solicitor-General Blair, Hay, Cathcart. Agent, And. Macwhinnie.
Clerk, Menzies.
F. Fac. Col. No 85. p. 187.
*-*-*
1803. February II. STEwART againſt GoRDON.
At the meeting for electing a Member of Parliament for the stewartry of
Kirkcudbright, John Gordon of Lochdougan applied to be enrolled as a free-
holder ; to whom it was objected, That he was not possessed of the whole lands
on which he claimed, as retoured prior to 1681 to a ten-pound land of old ex-
tent, having sold a part of them to Thomas Maclellan of Greenlane about two
years ago for the price of L. 58. &
The objection being repelled by the court of freeholders, the Honourable
Montgomery Stewart complained, and * {
Pleaded; By $ 8. of 16th Geo. II. c. I I, it is declared, that no person is or
shall be entitled to vote, or to be enrolled, in respect of the old extent, unless
such old extent is proved by a retour of the lands of a date prior to 16th day
of February 1681; and that no division of the old extent made since the afore-
said 16th day of February 1681, or to be made in time coming, by retour, or:
any other way, is or shall be sustained as sufficient evidence of the old extent.
So that if a part of an estate retoured of old extent has been alienated by sale
or otherwise, whether this part be large or small, it is impossible: that the old
extent either of the one part or of the other can be improved by a retour prior
to 1681. The lands having a cumulo. extent, when a part is alienated, the old
extent is divided, and the part which is retained cannot possibly have the old
extent of the whole, but only that part which may be ascertained to belong to .
it on a division: but, by the statute, no division since 1681 can be evidence of
the old extent in a question of qualification, however great the proportion may
'be in which the one part exceeds the other, nor however, great the original re-
tour may be. The claimant must literally be in possession of the whole lands
that were retoured in cºnvio by the retour claimed on, and consequently he
must have right to 'ze wi. Je ( , , ;", cº: ºt. It is not enough, though it were:
ſwo I 2 Oa-
No 1 21.
A retour
prior to 1681,
of a ten
pound land,
affords a frees
hold qualifi-
cation, al-
though a
small part of
it has been
disposed of
for a price
for the pur-
pose of
straighting.
marches,

182 MEMBER OF PARLIAMENT. Div. IV.
TNo 12 I.
clear to demonstration, that if a division could be made, the share of the ex-
tent corresponding to the share of the lands retained by him would be much
greater than forty shillings; Freeholders of Lanarkshire against Hamilton, 6th
February 1745, No 30. supra ; Macdowall against Buchanan, No 42. ſupra.
The statute has always been strictly followed out, although better evidence
of the old extent than retours has been produced ; Stewart against Camp-
bell, No 14; supra, and Stewart against Crawford, No. 13. ſupra; Wight,
p. 167, 168. * -
Now, it is admitted that part of the lands of Lochdougan were sold to Mac-
lellan, by a disposition, containing procuratory and precept. This was a field
between two and three acres, bearing a proportional part of the old extent of
the lands, in which the purchaser has already been infeft. The disposition ac-
knowledges a full price to have been paid for it, with a clause of absolute war-
randice, and all the usual clauses in a complete conveyance. This, however,
has been represented as a mere accommodation, for the purpose of straighting
the marches, owing to the road which has lately been made from Dumfries to
Kirkcudbright, which cut off a small part of the estate of Lochdougan, adjoin-
ing to Greenlane, a part of which was cut off on the Lochdougan side. This
idea did not enter into the view of the parties. There was no exchange of
land, unless about seven square ells can be held so. A price was paid for what
was sold, which was only about two acres out of one hundred beionging to
Lochdougan on the same side of the road. But even if it had been an ex-
change of land, for the purpose of straighting marches, unless the portions of
land received and given are equal in quantity and quality, the freehold qualifi-
cation cannot fail to be affected ; for a part of the land is given away, for which
a price in money has been received. Unless there be no diminution of the
tenement, to which the old extent applies, the qualification must be affected.
The purchaser at present is only infeft base on his disposition, but he may also
hold the subject as Crown vassal, his disposition containing procuratory as well
as precept. There will thus be two Crown vassals in these lands, which were
extended in cumulo by the retour founded on by Mr Gordon ; and it cannot be
supposed, that in lands held under the Crown, there is no old extent. A part
then has been taken from the extent, and this division has taken place since .
I68 I. t -
Answered ; The lands are retoured as a ten pound land ; and when the new
road cut off this angle of Lochdougan not a four hundredth part of its value,
and left also a small piece of the Greenlane estate detached, it became of con-
sequence to straight the marches of the two properties. As the part to be giv-
en on the one part was greater than was to be received, the difference of course
was to be paid in money. Accordingly, the disposition bears, the narrative of
‘ a certain sum of money advanced and paid to me by Thomas Maclellan of
* Greenlane, as the worth and value of the angle or pendicle of land after dis-
‘poned, and in order to square or straight marches for our mutual convenience
SECT. I. MEMBER OF PARLIAMENT. 183
‘ and accommodation.” In giving off a small angle of two acres, for the ex-
press purpose of accommodating himself and his neighbour, it never was ima-
gined that this could affect the right to vote upon a ten pound land. The ob-
ject of the statute 1681 was plainly to prevent the multiplication of votes, by
dividing the old extent of lands, but cannot affect this operation, when a small
angle has been given off, which is at the same time declared to have no valued
rent annexed to it, and to be free of all public burdens ; so that there is in
reality no division of the old extent, but the extent of the land is instructed
by a retour prior to 1681. In former cases, an excambion was never held to
diminish the evidence of the retour; Skene against Graham, No loš. supra;
Hamilton against Bogle, No. 1 13. supra ; Dunbar against Brodie, (1795,
See APPENDIX ;) Cunningham against Glen, (1797, See APPENDIX.) Retours are
always interpreted liberally, so that a person is not deprived of his elective fran-
chise, although there should happen to be a discrepancy between the values af-
fixed to the separate parcels in the descriptive clause, and the cumulo value in
the valent; and it is a matter of little consequence, whether there is an inaccu-
racy in framing the retour, or whether a trifling part of the lands has been giv-
en off. There is still sufficient evidence arising from the retour, that the lands
are of a requisite valuation. -
This was looked upon entirely as the common case of a straighting of march-
es, which, owing to the new road, the necessity of the case authorised. It
could event have been compelled in an action for that purpose before the She-
riff. A canal might have the same effect of disjoining a small angle from one
property, and laying it to another.
THE Court found, (I Ith February I So?,) “That the freeholders did right .
in admitting the respondent on the roll.”
To which judgment the Court adhered, (1st March ) by refusing a reclaim-
ing petition, without answers.
For Stewart, H. Erskine, J. Clerk, Ferguson, IV. Erskine. Agent, 4. foung, W. S.
For Gordon, Solicitor-General Blair, Hay, Cathcart. Agent, And. Macwhinnie.
Clerk, Menzieſ. *
F. * * Fac. Col. No 85, p. 188.
*
*- -emº ºmºm--
1803. February 17. FERGUSSON againſt GLENDONwYNE..
{
ON 13th October 1801, a claim to be enrolled among the freeholders of
Kirkcudbright was entered by William Glendonwyne of Glendonwyne, on the
five merk land of Crogo. He was enrolled accordingly, and appeared at the
meeting for electing their representative on 23d July. To his vote it was off.
jected by James Fergusson of Crosshill, that Glendonwyne professed the Ro-
man Catholic religion, and, having tendered the formula of the 8th Parliament
No I 2 I.
No 122,
A Roman
Catholic
found not en-
titled to
stand oh
the roll of
electors,
though he
had been ad-
mitted by the
freeholders,
184 MEMBER OF PARLIAMENT. sº DIV. IV.
No. I 22,
and no com-
plaint entered
within four
months.
advertency, he may be struck off when the error is discovered. f p
*~
of King William, which was refused, he moved that his vote should be exclud-
ed. ſº •.
The freeholders repelled the objection, upon which Mr Fergusson complain-
ed, and
Pleaded ; The act 1767, c. 8, which was declared to be a part of the treaty
of Union, provides, “ That none shall be capable to elect, or to be elected, but
‘ such as are 21 years complete, and Protestant, excluding all Papists, or who
‘ being suspected as such, being required, refuse to swear and subscribe the
formula contained in the 3d act made in the 8th and 9th sessions of King
William's Parliament; the meaning of which is, that none can be enrolled
in the situations above described ; not merely that he cannot vote nor be elect-
ed, for it is a roll of electors, established for the purpose of ascertaining who
the electors are; and being incapable of electing is the same thing as being in-
capable of being enrolled. It was so interpreted in the case of disqualification
by minority; M Leod against Gordon, No Io'ſ. supra, Wight, p. 268. If a
Papist has no right to be put upon the roll, and has been admitted through in-
The act 1707 remains in full force to prevent Roman Catholics fossessed of
sufficient property from voting at elections; for they lay under no disability to
hold property, but only the next Protestant heir was entitled to claim it if he
was so inclined ; and they were disabled from acquiring property by purchase.
It was to relieve them from these disabilities, and not to convey to them the
right of elective franchise, that the 33d George III. c. 44, was enacted, assi-
milating the condition of Roman Catholics in this country to their situation in
England. There it never was pretended that they had a title either to elect or
be elected, and this is the first instance where this privilege has been claimed
in this country. By this act they are relieved expressly from the disabilities of
17oo; but it has no reference to the subsequent statute, which forming a part
of the treaty of Union remains entire; and the right of a Papist to elector be e-
lected, or, which is the same, to be upon the roll of freeholders, stands exactly
upon the same foundation, that of subscribing the formula of King William.
Though the enrolment took place in October 1801, and no complaint was
made within four kalendar months, it is still competent; for a personal disquali-
fication cannot be got the better of by any title whatever. He should never
have been admitted to the roll, and may at any time be struck off, upon refusing
the formula. The act 16th George II. does not apply to personal disqualifica-
tions, as these may not exist, or be known within the statutory period for com-
plaining. Thus, a person succeeding to a peerage, or becoming the eldest son of
a Scots peer, may be struck off the roll though he has stood there for years.
But there has here been an alteration of circumstances, in respect of the right
and title on which the enrºlment took place. On the titles produced, Glen-
donwyne was entitled to be enrolled. No opportunity occurred of tendering
the formula till 23d July, when he refused it. Within four months a con-
SECT. I. MEMBER OF PARLIAMENT. 185
J
plaint has been presented. The refusal of the formula, stamped upon him the
personal disqualification. * * -
Anſwered; Every disqualification by which a man is prevented from enjoy-
ing the right of elective franchise, is unfavourable in its nature, and therefore
to be strictly interpreted. The words of the act 1707, supposing it to regulate
the present question, and not to be repealed, does not call in question a Ro-
man Catholic's right to be enrolled, but only imposes on him, as a necessary
preparatory to the exercise of his right of election, the duty of taking a cer-
tain formula if required. The terms of the statute are precise, and, like every
penal statute, must be interpreted strictly. Fatuous persons and lunatics can-
not vote as electors; but such persons being on the roll, cannot be turned off,
unless when tried and cognosced by a jury. A roll of freeholders, and a roll
of electors, are thus essentially different; the one comprehending all holding
estate of a certain value under the Crown, and the other embracing all who are
not otherwise disqualified. Wight, p. 269, gives it as his opinion, that the
freeholders cannot turn a person off the roll who refuses to take the formula,
it being sufficient to tender to him this test of his religious principles, as often
as he claims to vote, in the same way as one refusing to take the oath of ab-
juration cannot be struck off the roll. It was necessary to enact 37th Geo. III.
c. 138, to prevent revenue-officers from voting for preses and clerk, which they
had formerly done, notwithstanding 22d Geo. III. c. 4 I, disabled them from
electing or being elected. This disability is similar to that of being a Roman
Catholic. They are both personal, temporary and removeable at any time.
Scots peers' eldest sons, minors and women, labour under a natural defect of
title, and therefore are excluded from the roll altogether. -
But the formula of King William is repealed expressly, along with the act
itself, by 33d Geo. III. c. 44, and any reference, therefore, made to it by 1707,
c. 8, is also at an end. The new formula is substituted in its place, and the
Roman Catholic who takes it is to be relieved from all pains, penalties and dis-
abilities, &c. ‘as fully and effectually, to all intents and purposes whatsoever,
as if sueh person had actually made the renunciation of Popery thereby or-
dained.’ None of the least of these disabilities is the incapacity to elect and
be elected. - : w - -
Having stood more than four months upon the roll, a complaint is not com-
petent. No objection has been made to the valuation of his lands. Here his
title is complete; and having enjoyed, in consequence of it, the right of being
enrolled longer than the statutory period, nothing but an objection arising from
the alteration of that right or title in respect of which he was enrolled, can be
sustained to take it away. No such-alteration is alleged, so that the right of
challenge is long ago prescribed ; for, a freeholder may refuse to take all the
oaths tendered to him, except the trust-oath, and yet he is entitled to stand
upon the roll. - -
A a
No 122.
I86 MEMBER OF PARLIAMENT, Div. IV.
No 22,
No I-2 3.
A subdistri-
butor of
stamps net
disqualified
from voting
at elections...
The Court were unanimously of opinion, that the formula prescribed by
1707 was still in force, and that it might be put to a person suspected of being
a papist, previous to his enrolment. This had not been the course followed
here, but it had been tendered, and refused, the first time he came to exer-
cise the privilege of election. Consequently, he had no right to continue on
the roll, although he had stood in it for more than four months, as a great dis-
tinction occurs between objections arising from the title of his lands, and from
a personal disqualification, which cannot be known till an opportunity arises
for investigating it. An objection to a title appears ex facie, and must there-
fore be challenged within four months from the enrolment; but a personal dis-
ability can only be objected to when it is discovered. A Protestant may
become a Roman catholic ; he may be required to take the formula, and if he
refuse he can have no right to continue on the roll, although he may have
been enrolled for years. - • -
The Court (17th February 1803) sustained the objection to the respondent's
standing upon the roll of freeholders. - -
To which judgment they adhered, by refusing a reclaiming petition, without
answers, (10th March 1803).
For Ferguson, H. Erskine, M. Ross, W. Erſkine, Campbell, jun. Agent, Alex. Toung, W. S.
For Glendonwyne, Solicitor-General Blair, Hay, Cathcart, Walker. Agent, W. Walker.
Clerk, Menzieſ. .
F. Fac. Col. No 89. p. 194;
- * ~x mº ºn -
1803. February 25. Goodsir againſt HUTTON.
The statute 22d Geo. III. c. 41. was enacted for the better securing the
freedom of elections of Members to serve in Parliament, by disabling certain
officers employed in the collection or management of his Majesty's revenue, .
from giving their votes at such elections. This enactment was not held to
apply to the case of John Hutton, writer in Kinghorn, who received a quan-
tity of stamps from the head distributor at Cupar, with which he afterwards.
supplied the neighbourhood; for he had no connection with, and was not under
the controul of the Commissioners of the Stamp-office; he was not appointed
by them; nor was he an immediate servant of government; the design of the
statute being no other than to diminish the influence of government in elec-
tions. It was also interpreted in this way in England; Luders on Elections, ,
vol. 2. p. 552, 601. ; Fraser's Election Cases, vol. i. p. 164.
Act. Gillies. A gent, jo. Syme, W. S. Alt. W. Erráine.
Agent, Gha. Anderſon, Clerk, Pringle. -
SECT. 2.
MEMBER or PARLIAMENT. 187
S E C T. II.
Adjudger.—Wadsetter.
1745. February 26. HAY and CoCKBURN against LoRD DRUMMORE.
HUGH DALRYMPLE of Drummore, one of the Senators of the College of Jus-
tice, standing on the roll of freeholders for the county of Haddington, it was
objected to his title, That he was infeft in fourteen acres and five-falls of land,
part of the estate of Prestongrange, adjudged by him in implement of a decree-
arbitral, after coveral oth or adjudications, lie Cuuld not bring these acres in
compute to make up his valuation, as the first adjudger only is entitled by law
to a VOte. e
Answered; He is infeft and in possession; 2dly, His purchase, the Submission
to adjust the terms thereof, and decree-arbitral, are before any adjudications,
and the adjudication in implement must draw back to its foundation ; 3dly
He appeared in the ranking of the creditors of Prestongrange, and, of consei:
of the adjudgers, obtained these lands to be struck out of the Sale, reserving to
them to affect the price, or any part of it, in his hands. THE LoRDs repelled
the objection. *
‘Objected; 2dly, The valuation of these acres does not Properly appear, being
determined only by the above-mentioned decree-arbitral, for which the arbiters
were not empowered ; and besides, it is not the Paction of parties, but the
determination of the commissioners on a proper cognition, that Ought to settle
valuations.
Answered; The arbiters being to adjust the terms of the sale, it was
before them to determine, what part of the public burdens the
should bear. The lands stand valued in the cess-books, and Pay accordingly;
and the commissioners are the only proper court to determine this matter, to
whom the decree-arbitral was proper evidence; for though since public bur-
dens ceased to be levied according to the extent, it was fit some other method
than the consent of parties should be necessary to divide that:
tº gº • , sº ; yet there needs
be no such suspicion with regard to the Valuation.—THE Lords repelled the
objection. . .
properly
part sold off
Reporter, Lord Balmerino. Act. Grahám. jun.
Alt. Maitland.
** Pºe, w. 3. p. 415. D, Falconer, v 1. p. 87.
A a 2 *-*
No 124.
A person
infeft on an
adjudication,
which, tho’
not the first,
proceeded in
implement of
a right prior
to any adju-
dications, and
was in posses-
sion, was
found entitled
to Vote,
A division of
a valuation,
in which the
Commission-
ers of Supply
had proceed-
ed on a de-
cree arbitral,
without far-
ther proof,
was sustain-
ed.
I 88 MEMBER OF PARLIAMENT. Div. IV.
No 125.
A wadset
found to be
proper, so as
to entitle to
vote, though
it contained
no power to
the wadsetter
to call for his
money.
No I. 26.
Lands held
by a man,
excluding his
heirs and as-
signees to
return on his
death to his
author, found
to entitle to
VOte,
No 127.
Notwith-
standing an
adjudication,
1745. july 18. FREEdolpers of Ross-shire against Monro of Culcairn,
MonRo of Culcairn stood upon the roll of freeholders for the county of Ross,
in virtue of a disposition to the Superiority of certain lands granted to him by
Monro of Foulis his father, redeemable for Ioco merks.
Objected to his title ; That this was an elusory right created to raise up a
vote, and besides could give no vote, as being an infeftment in security for
money, and not a proper wadset ; for there was no power in the disponee to
require the money. A wadset was a pledge; and here there was no debt which
a pledge could secure, and so the right being no wadset at all, could not be
called a proper or improper one.
TH F LORD ORDINARY, having advised with the Lords, repelled the objection;
and, on a petition, the LORD's adhered.
Pet. W. Grani,
Fol. Dic. v. 3. p. 416. D. Falconer, v. I. p. 122.
*** A similar decision was pronounced, 17th January 1755, Galbraith
against Cunningham, No 51. ſupra.
—mºſ. ººm-
I 747. Yune 24. e
FREEHoldeRs of the Shire of WigTON against SFEwART of Barvennan
and HAY of Balcarry.
CoLoRNEL JAMES STEwART of Barvennan was infeft in those lands, “tam in
‘ feodo quam in vitali redditu (heredes suos et assignatos excludendo) quo
‘morte deficiente Comiti de Galloway vel Alexandro domino Gairlies, ejusque
‘ heredibus et successoribus redire et assignatis quibuscunque,” with power to
him to burden the estate to the extent of L. 4oo Sterling; and Captain Alex-
ander Hay of Balcarry was infeft in the same manner, with a return to Sir
Thomas Hay of Park, but without any power of burdening.
Objected to these titles to stand on the roll of freeholders for the shire of
Wigton, that they were not liferents, and the fees were nominal and fictitious.
THE LORDS repelled the objection.
Act. A. Macdowal Alt. Lockhart.
Fol. Dic. v. 3. p. 415. D. Falconer, No 192, p. 257
mº ºm
1748. June 7.
HoME-CAMPBELL and KER againſt HoMEs of MANDERsroN
SIR John Horse elder and James Home younger of Manderston stood on the
roll of freeholders for the shire of Berwick, and no objection was made to
SECT. 2.
MEMBER OF PARLIAMENT. 189
their title by complaint to the Lords of Session before Ist December 1743, as
directed by act 16th of the present King; but there having been an adjudica-
tion led of their estate 27th February 1733, on which infeftment followed
1st May 1735, the legal whereof therefore appeared ex facie to be expired in
February 1743, it was moved in the Court of Freeholders to have them ex-
punged the roll at Michaelmas 1747, upon this alleged alteration of their cir-
cumstances; and they being continued, a complaint was preferred by Alexan-
der Home-Campbell and George Ker of Nisbet to the Lords of Session. *.
Answered, The last roll as it stood before December 1743, is declared by .
the act of Parliament to be the roll of constituent members, which the free-
holders had no power over; it having only been competent to them to apply
to the Lords of Session for correcting it before that term, which in this case
was not done. and afterwards they could only proceed on alteratiºn of cir-
cumstances, and their was no alteration since December 1743, as the adjudi-
cation was prior thereto, upon which no possession had ever been attained.
Replied, There had been an alteration since enrollment by expiration of the
legal, which warranted the freeholders to proceed; as after expiration, the
right of voting is competent to the adjudger.
Observed on the Bench, That by the statute the freeholders could not re-
move any standing on the roll last made up, which was declared to make the
roll of constituent members for the first Court, but behoved, if any stood there
ithout title, to apply in due time to the Lords of Session : And also, that the
act 1681, in giving the vote after expiration of the legal to the adjudger, be-
hoved to be undersood of adjudgers in possession ; as possession is necessary to
intitle to a vote, and though a legal may seem to be expired, it is impossible,
so long as possession is not had upon the adjudication, to know what reasons
there may be for finding it still open.
THE LORDs repelled the objection, and found expences due.
Act. R. Craigie. Alt. Lockhart. .
Fol. Dic. v. 3. p. 415. D. Falconer, v. I. No 254. p. 341.
* * º
y”
. . CAMPBELL againſt STIRLING.
1754. March 6.
A wadset of superiority comprehending a property of a small part of the
lands, where the casualties were renounced, and the rents and feu-duties war-
ranted to extend at the date, to a certain sum, nearly equal to the interest of
the money, was found a proper wadset so as to entitle to a vote.
tº-
ū Fol. Dic. v. 3. p. 416.
*** This case is No 8, p. 2439, voce CoMMISSIONERs of SUPPLY,
No 127.
the reserver
is entitled to
continue up-
on the roll
during the
currency of
the legal ; and
even after it
is expired,
the adjudger
cannot be ad-
mitted until
he obtain pos-
session.
No 128.
19C MEMBER OF PARLIAMENT DIV, IV.
No 129.
Wadset of a
superiority,
where the
feu-duty pay-
able to the
wadsetter was
precisely
equal to the
interest of the
redemption-
money, found
a proper wad-
Set, SO as to
entitle to
Votes
1760. February 22. *
LAUGHLAN GRANT of Drumphad against FREDERICK CAMPBELL, Esq;
and other FREEHoLDERs of Dumbartonshire.
SIR JAMES Colquhoun of Luss, having purchased the five-merk land of
Drumphad, in the county of Dumbarton, from, the Lord Cathcart, obtained a
charter under the Great Seal, of these and other lands; after which Lauchlan
Grant, writer in Edinburgh, acquired a freehold upon them in the following
1I] alſh Ile1".
Sir James, after taking out his charter, obtained himself infeft in the lands
upon a special procuratory granted by him to take infeftment in his name upon
the precept de me in Lord Cathcart's disposition.
He next granted a feu-cliartel of the lauds of Drum phad to Charles Craw-
ford, (supposed to be a trustee for Sir James), for payment of a yearly feu-duty
of 16s. 8d. Sterling; upon which Crawford was infeft upon the 23d March
I758.
The property of the lands being thus separated from the superiority, Sir
James, upon the 24th March 1758, entered into a contract of wadset with
Lauchlan Grant, whereby he wadsetted to him the lands of Drumphad, uinº,
the exception of Charles Crawford's feu-right, redeemable at the term of "...
tinnas 1763, for L. 16: 13:4; the legal interest of which sum exactly co tº
ponded with the yearly feu-duty levyable by the wadsetter. Sir James, at vue
same time, assigned to Mr Grant so much of the precept of Sasine in his own
charter from the Crown as corresponded to the lands of Drumphad ; and as it
still remained to take Sir James's base infeftment out of the way, so as so
bring Crawford's sub-feu to be held immediately under the wadsetter, Sir
James, in order to accomplish this, resigned the lands, ad perpetuam remanen-
tiam, in the hands of Lauchlan Grant; and the base right being thus consoli-
dated with Grant's right of superiority, Grant, in the next place, obtained
himself infeft upon the precept in Sir James Crown-charter, and assignment
thereto. *
Lauchlan Grant having claimed to be enrolled upon these titles at the Mi-
chaelmas head-court held at Dumbarton in October 1759, his claim was ob-
jected to ; and the objections having been sustained by a majority of the free-
holders, Mr Grant complained to the Court of Session.
Pleaded for the defenders, Imo, The titles produced by the complainer
carry evident marks of a nominal and fictitious qualification, created with the
sole view of making a vote at an election, without intending to confer any
substantial interest in the land. Had a real purchase been intended, the par-
ties would never have gone about it in the manner they have done. Mr Grant
has made no real acquisition, but has only lent his name to create a vote. He
has acquired the subject, not for his own behoof, but to serve his author; and
SECT. 2. MEMBER or PARLIAMENT. 19
*
though it may true, that he is under no positive engagement to Sir James
Colquhoun ; yet he is, from the nature of the thing, under a tacit and implied
obligation, which is equally binding in conscience. It was plainly with a view
to guard against practices of this sort, that the oath required by the 7th of
King George Iſ. was introduced. It is not enough that the person claiming
to vote has given no promise nor backbond, directly or indirectly ; he must
likewise be able to say, “That his title is not nominal or fictitious, created or
reserved in him, in order to enable him to vote at an election ; but that the
same is a true and real estate in him for his own use and benefit,” &c. It is
plain, therefore, that the legislature reprobates all such nominal votes; and if
the Court is satisfied, from the face of the deeds, and the nature of the trans-
action, that the complainer's title fall under that description, it is the same
thing as if Mr Grant had acknowledged, upon, oath, that his qualification was
nominal and fictitious.
2do, The defenders apprehend, that the right upon which the complainer's
claim is founded, is not a proper wadset, in the meaning of the acts 1661 and
1681, which declare, that proper wadsetters having lands of the holding, ex-
tent, or valuation required by law, shall have right to vote. Wadsets of su-
periority distinct from the property, are a modern invention, and could not be
in the view of the legislature at that time. In the act 1661, c. 62. a proper
wadsetter is described, “as taking the hazard of the fruits, tenants, war, or
troubles; but a wadsetter of naked superiority cannot possibly run any such ha-
zards. Such a wadset, therefore, is more nearly allied to the improper kind;
if indeed the terms proper and improper can at all apply to wadsets of su-
periority. In the present case, the complainer is secured is a feu-duty, pre-
cisely equivalent to the interest of his money; he runs no lisks, and he is
much in the same case with a wadsetter who helds the lands at a certain rent,
or who grants a back-tack to the reverser for a tack-duty equal to the legal in-
terest of his money; in both of which cases the wadset becomes improper. Nei-
ther is there any chance for the fall of casualties before the time at which the
wadset is redeemable; and though there were, it is not every minute and trifling
inequality that is sufficient to render a wadset proper; as was found in the case
of Doul against Creditors of Young, 18th July 1718, voce Usury.
3tio, It was irregular in Sir James Colquhoun, after the lands were resigned
in the Crown's hands, the resignation accepted of, and in consequence thereof
a charter of resignation granted by the Crown in his favour, to stop short, and,
in place of executing the precept in that charter, to go back upon Lord Cath-
cart's disposition, and grant a special procuratory to take infeftment upon the
precept de me therein contained.
Lastly, It was improper in Sir James Colquhoun to assign away and divide
the precept in the Crown-charter among two or three different people, so as
thereby to obtrude several vassals upon the Crown, in place of one. It has
been found, that a vassal could not have three superiors in place of one oh
*.
No 129,
No I 29.
& Y.
No I
as
C.
y
S. ºf 3: .
I92 MEMBER OF PARLIAMENT. DIV. IV.
truded upon him ; and there is no reason why a superior should not be equally
a favourite of the law. &
Anſwered for Lauchlan Grant; To the firſt objection, that a title cannot be
nominal or fictitious, where the claimant is truly possessed of the whole right
that is set forth in the writings produced. Here the complainer possesses the
lands with the burden of Mr Crawford's feu-right; he uplifts the feu-duties,
he is entitled to uplift the casualties when they fall, and he is under no ob-
ligation to account for the same to any person. The whole right, such as it
appears from his titles, is fully and truly in him, for his own behoof, without
any promise or obligation to the contrary, and consequently it is a true and
real estate in him, for his own use and benefit, and for the use of no other
person whatsoever, in terms of the statute referred to in the objection. j
Anywered to the second objection, It does not alter the nature of an impro-
per wadset, that the rent is certain and well paid, which may happen in lands
possessed by good tenants, as well as when they are, held of the wadsetter in
feu. It is still a proper sale during the not redemption. If any alteration hap
pen in the interest of money, it affects the reverser, who has the price in his
hands. And, e contra, whatever alteration happens as to the lands, by the fall-
ing of casualties, or superveniency of burdens, these affect the wadsetter, who
is purchaser, as long as the right is not redeemed. Wadsets of superiority
have always been sustained as good titles for a qualification, when the lands
amount to the extent or valuation required by law.
In answer to the third objection, Sir James had it in his power to take in-
feſtment, either in the one way or the other, as the feudal right was still in
J.ord Cathcart. *
And, in answer to the fourth objection, When the Crown or any other su-
perior, grants a charter to a vassal, and his heirs or assignees, of the lands
A, B, and C ; as the vassal may take infeftment of the lands of A only, so, if
he thinks fit, he may dispone these lands to a purchaser, or a creditor may ad-
judge them from him, without acquiring right to the other lands; and he may
afterwards sell the rest of the lands to another purchaser ; nor can the su-
perior refuse to receive these purchasers or adjudgers.
‘THE LORDs found, That the complainer had a good title, and appointed
him to be enrolled.’ *. *
For the Complainer, Ferguson. Alt. Ilay Campbell. Clerk, Kirkpatrick,
P. M. . Fol. Dic. v. 3. p. 416. Fac. Col. No 215. p. 390.
—mºm- w
1767. Sir GEORGE LOCKHART.
WHETHER a simple renunciation by the wadsetter is sufficient to reinstate
the reverser in the right of claiming to be enrolled; or if a resignation, with
a new charter and infeftment be necessary; debated, but not determined.—
See APPENDIx.
Fol. Dic. v. 3. p. 416,
SECT. 2. MEMBER of PARLIAMENT. 193
1773. july 1.
Sir JAMEs Colquhoun of Luss, Baronet, and Others, Freeholders of the County
of Dumbarton against JAMEs HAMILTON, Younger of Hutchison.
ARCHIBALD EDMONSTONE of Duntreath, after having taken a charter under
the great seal, in favour of himself, his heirs, and assignees, heritably and ir-
redeemably, of the lands of Middleton and Barnhill, &c. as the same were
then possessed by the respective heritable vassals, upon the 32th August 1771
disponed the said lands of Middleton, &c. to his brother, Charles Edmonºe.
in liferent, for his liferent use only, and to James Hamilton, younger of Hut.
chison, and the heirs-male of his body in fee; whom failing, to return to the
said Archibald Edmonstone, his heirs or assignees whatsoever; but redeemable
always, and under reversion, the said lands and others, with their periment, in
so far as concerned the fee thereof, by the said Archibald Edmonstone and
his foresaids, from the said James Hamilton the fiar, and the heirs-male of his
body, by payment to them, or lawful consignation, for their behoof, of the sum
of Io merks Scots, at and upon the term of Whitsunday then next, 1772, or at
any other term of Whitsunday or Martinmas thereafter, upon premotion al-
ways of 40 days preceding any such term, to be made to the said James Ha-
milton, or his foresaids, in manner therein directed.
The said Charles Edmonstone, and James Hamilton, for their several rights
of liferent and fee, were infeft in the lands, in virtue of the precept of ºns
contained in the foresaid charter under the great seal, which was Specially as-
signed by their disposition; and, having lodged their claim, were enrolled up-
on these titles, the one as liferenter, and the other as fiar, at the Mºmº
meeting of freeholders in the county of Dumbarton, in 1772. - &
Sir James Colquhoun, and certain other freeholders, who were not present at
the Michaelmas meeting, presented a complaint against the enrolment of the
said James Hamilton as fiar. In support of which, they insisted, Imo, That
this is no proper wadset, but a sale or disposition of superiority, under ºver.
sion ; 2do, That the fee of a wadset of superiority, subject to a liferent in favour
of a third person, is not a right of that nature which entitles the fiar to be CI) -
rolled, or to vote as a freeholder.
Upon the firſt point, Whether the right upon which the present claim is
founded, is a proper wadset? argued, It will not be maintained, that the lands
being disponed under a faculty or power of redemption is, per ſe, sufficient to
constitute a wadset right, that being common to every redeemable right. The
deed in question does not bear to be granted in wadset, which is the usual te.
nor of all such rights, where a wadset, proper or improper, is intended. The
word wadset is not to be found within the four corners of the deed nor any
expression that has the most remote tendency to show that it was the meni
ment of parties to constitute such right. It is conceived in the precise form
B. b
No 131.
A disposition
of lands under
a power to
redeem them
for a certain
sum without
the interven-
ticn of a loan,
real or assum-
ed, is not a
wadset, and
gives no right
to vote.
Lands dispor-
ed to one in
lifelent, and
another in
fee, redeern-
able as to the
fee, do not
entitle the firr
to VOtC.
194 MEMBER or PARLIAMENT. Div. Iv.
No 1 31.
of, and plainly imports a disposition of the property of these lands, under
a perpetual power of redemption, for payment of the elusory sum of ten-merks;
being that very species of right which the statute of the 12th of the Queen
did, in terminis, declare should give no freehold qualification; so that the sus-
taining it as a proper wadset would at once destroy that destinction which the
law had so anxiously established between proper wadsets and other redeemable
rights. - t .
Upon the second point, viz. that James Hamilton's claim, qua fiar of these
lands, subject to a liferent in favour of Major Edmonstone, is anomalous, and
inconsistent with the nature of a proper wadset, such as the statute 1681 must
be supposed to have had in view ; - -. -
Argued, The distinguishing characteristic of a proper wadset, is not only its
being granted by way of impignoration, and in security of the sum thereby
acknowledged to be due, and under reversion, upon payment of that sum, but
also of the wadsetter's acceptance of the rents of the lands, with all the hazards
attending the same, in satisfaction of the sum for which the security is
granted, redeemable upon payment of the principal sum itself, without an-
muahent, the rents of the lands standing in place of the annualrents of the
money. - - * . .
Not one of these characteristics is to be found in the right upon which this
claim is founded. The disposition by Mr Edmonstone of Duntreath was
merely gratuitous; no antecedent debt, nor any price received for security
and repayment of which a proper wadset could be created; and, therefore,
though granted under a faculty of redemption, however it may be construed
a redeemable disposition of property, it is adverse to every idea of a proper
wadset. - -
Every freehold qualification requires possession of the subject, either by the
party himself, or by others who hold under him; and, therefore, the oath of
possession is enjoined to be taken by every such claimant, when required.
With what propriety the oath of possession can be taken by this claimant, up-
on a right so strange and anomalous, where he has plainly nothing to possess
during the lifetime of the nominal liferenter, is quite incomprehensible; and
the complainers are confident, that, were it to be tendered to him, he would.
not take it. t . t; -
The case in hand differs widely from the case of a common fiar of lands
subject to a liferent, where the liferenter's possession is, in the eye of law, held
to be the fiar's possession; and, therefore, the law did, with great justice and
propriety, allow to the fiar, in absence of the liferenter, a voice in the election,
of a Commissioner to Parliament. - * *
The wadsetter is not a fiar of the lands; he is a creditor; and, as the life-
renter, in such case, possesses proprio jare, which excludes the nominal fiar
from having access to the lands themselves, it seems a manifest absurdity to
SEct. 2. MEMBER of PARLIAMENT. * 195
characterise a right such as this, a proper wadset in the person of the nominal
fiar. w * . -
Proper liferents are, in their nature, but subaltern rights, burdens upon
the fee; and the extinction of the liferent restores the fiar to the full posses-
sion and enjoyment of that fee with which he was vested. The fee may
subsist without the liferent; but that the liferent should subsist after extinc-
tion of the fee, is incongruous and absurd. The fee and liferent constitutes
the whole right, the liferent being a burden upon the fee; and, therefore, as
in this case, the fee was declared to be redeemable upon payment of this elu-
sory sum, the liferent could not subsist but as a separate and independent
right after redemption of the fee; and, if the complainers had been timeously
apprised of the true nature of this right, they should have thought it equal-
ly incumbent on them to have included Charles Edmonstone's qualification in
the complaint. - t - -
A liferent granted to one of a redeemable right belonging to another, im-
plies a manifest contradiction, especially where, as in this case, the liferenter
is not entitled to the liferent use of the money for which the lands are redeem-
able, but his right of liferent to continue of the lands themselves, equally after
the redemption as before ; which, therefore, is demonstration, that, though this
nominal fee and liferent to different persons, was granted by one and the same
deed, they are quite unconnected with one another, in so far as the liferent
was to subsist, even after the redemption of the wadset; and, as both rights
must therefore stand upon their own bottoms, allowing the right thereby
granted to Charles Edmonstone to be a proper liferent of the lands, nowise de-
pending upon the right of the fee granted to James Hamilton, however the
law may be supposed to stand with respect to the liferenter, it seems impossible
that the nominal fee of this redeemable right can entitle James Hamilton to
a freehold qualification as of a proper wadset; a title that clearly has not the
shadow of a foundation in the law.
Anſwered, The statute 1681 has pointed out, with great accuracy, the dif-
ferent titles sufficient to constitute a freehold qualification; and, among
others, a proper wadset-right of lands, of the valuation and extent therein men-
tioned, is a good qualification, until a declarator of redemption is obtained, or
until a voluntary renunciation or resignation can be produced. Proper wad-
setters, during the not redemption, are, in this particular, on the same footing
with those who have the absolute irredeemable property of the lands. And in-
deed it was very reasonable it should be so. Where a proper wadset is grant-
ed to be holden of the Crown, no more remains with the granter of the wad-
set, than a personal right of reversion. He is totally divested of the feudal
right of the lands, and the wadsetter, during the not-redemption, is, to all in-
tents and purposes, the vassal of the Crown. He is liable to the whole bur-
dens and prestations incumbent on the vassal, and consequently it was highly
B b 2
No 131.
196 MEMBER of PARLIAMENT. Div. IV.
reasonable that he should enjoy the benefits and privileges arising from his
property. •
Neither does the law make any distinction as to this matter, between a wad-
set of property holding of the Crown, where the wadsetter has right to the do-
minium utile, and rents of the lands, and a wadset of superiority, where he pos-
sesses by a vassal holding the lands under him, and only enjoys certain feu-
duties and casualities. In either case, he is, in the eye of the law, proprietor
of the lands; and, although it has been sometimes thrown out, that wadsets of
superiority were mere nominal rights, not founded in the original nature of
wadsets, which were an impignoration of so much land for money, the wad-
setter taking the hazard of “fruits, tenants, war, and trouble;” yet the Court
have repeatedly over-ruled such objections; particularly, in the case of Lauch-
lan Grant of Drumphad, in 1760, No. 129. p. 8740. and the numberless cases
which occurred about the time of the last elections, from Cromarty, Forfar, &c.
where the Court did uniformly maintained such qualifications, particularly af.
ter a hearing in presence in one of the Forfar cases; nor will an instance be
produced where they were rejected, either here or in the last resort.
But, say the petitioners, there is here no wadset, either of property or
superiority, but a disposition of lands under a perpetual redemption, for a small
elusory sum, which is something different from a proper wadset ; and the act
of Queen Anne declares, that no redeemable right, other than proper wadsets,
adjudications; or apprisings, allowed by the act 1681, shall entitle to vote. It
is further observed, that the word wadset does not occur from beginning to end
of the deed,
As to the smallness of the wadset súm, it is, with submission, thought, that
this is of no importance; for the Court has never sustained it as a good objec-
tion, that the right is of little value, if it otherwise amounts to a sufficient le-
gal qualification. In all the cases already mentioned, the feu-duties were no-
minal, and the wadset sums mere trifles. It is enough to constitute a freehold
qualification, that the lands are held of the Crown; that they are L. 4oo of
valuation, or forty shillings of old extent; that the claimant is infeft in them.
upon a charter under the great seal, either heritably or irredeemably, or in life-
rent, or in the form of a proper wadset, or as the first adjudger after the legal.
is expired. - $.
Neither is it any objection, that the redemption is perpetual. This is al-
ways the case in wadsets; and is rather contradictory to the supposition, that
the right in question was meant as a sale under reversion, and not as a proper
wadset. Indeed, stipulations limiting the redemption in wadsets, have always
been considered as oppressive, and are reprobated in law.
At the same time, the respondent does not, with submission, see what mate-
rial difference there is between a sale of lands under reversion, and a proper
wadset; especially when, in the former, the right of redemption is not limited
to any precise time, but is made perpetual. The two transactions are in form
SECT. 2. MEMBER or PARLIAMENT. I97
and substance the same ; and it is impossible that the law could mean to make
any distinction between them. When a man having occasion for money, sells
his land for a certain price, under a stipulation, that he shall be at liberty to
redeem it by re-payment of the same price, at any term of Martinmas there-
after, upon using certain forms of premonition and consignation ; what is this
but a proper wadset? The purchaser, in the mean time, holds the lands as his
property, enjoys the rents or profits of them in lieu of the interest of his mo-
ney, without being accountable.
These are the characteristics of a proper wadset ; and it is quite immaterial,
whether it goes by the name of a wadset, or of a right of property in the lands
under reversion ; for these two are, in reality, the same.
Dallas, in his book of Styles, p. 729. gives the form of a contract of proper
wadset; and, although he wrote in those days when wadsets were much more
common than they are at present, and consequently the style of them better
known ; it is remarkable, that he does not make use of the word wadset, but
‘ sells, and annailzies, and dispones, in the precise same form and language as
is done in the present case ; and it is believed the same has continued to be the
practice all along. The lands are disponed under reversion; and, although a
pledge, or wadset, is only intended, dispositive words are always used.
By the old practice, when lands were wadsetted, the disponer gave an abso.
Iute irredeemable disposition, and the reversion was contained in a separate writ-
ing. Afterwards, it was thought more secure to make the reversion a condition
of the grant, and to insert it in gremio of the disposition. But these different
modes of doing the same thing, show clearly, that the essence of a wadset does
not consist in words, but in the substance and meaning of the transaction; and
accordingly Lord Stair defines it, not by the form of the writing, but by the
substance of it, in these words: “A proper wadset is, where the fruits and pro-
fit of the thing wadset are simply given for the annualrent of the surn, and the
hazard or benefit thereof, whether it rise or fall, is the wadsetter’s.’ The same
description is given by Craig. He explains a wadset to be, in reality, an aliena-
tion sub pacto retrovendendo.
It is plain, therefore, that, wherever the person who is seased of the property
for the time, holds the rents or profits unaccountable, and is only subject to a
condition of reversion, on repayment of the stipulated sum, he is a proper wad-
setter in the sense of the law ; and, being truly vassal in the lands during the
not redemption, subject to all the burdens, and entitled to every privilege as
such, it was most just he should have the right of voting for a Member of Par-
liament. His lands holding of the Crown, and being of the proper valuation,
either he must have this right, or no other person can have it, the reverser ha-
ving no feudal right in him before redemption; and it would not be reasonable
that those lands, though amounting to a legal qualification, should nevertheless-
give no qualification to any person.
No 13 ſ.
198 MEMBER or PARLIAMENT. Div. IV.
No 131.
The other redeemable rights which, by the acts 1681, and 12th of Queen
Anne, are excluded from this privilege, are those which are only held in trust
by one man for another, or where the person infeft does not enjoy the rents un-
accountably, but only holds the lands as a security for relief or payment of
sums; as an improper wadsetter, an annualrenter, an adjudger within the legal,
&c. In all of these cases, the real and substantial right of property still remains
with the original owner; he continues vassal in the lands, the casualities of su-
periority fall by his death, and not by that of the other person infeft; and there-
fore, it would have been improper, had the right of voting been given to this
person, who, in no sense, can be held as proprietor of the lands, even during
the not redemption. •
The present case is by no means of this last kind. Mr Edmonstone, the re-
verser, stands, at present, absolutely divested of the feudal property of these
lands; he has nothing in him but a mere personal right of reversion of the fee.
On the other hand, the respondent stands vested in the full right of fee, and is
entitled to the unaccountable enjoyment of it during the not redemption, sub-
ject only to the burden of a liferent upon him ; which he shall now endeavour
to show, in answer to the petitioner's second objection, is no bar to his qualifica-
tion, though he admits he can only vote in absence of the liferenter. * *
The act 1681 says, that the fiar shall be entitled to vote when the liferenter
does not claim his vote, without distinguishing whether the right of fee is re-
deemable or irredeemable; and it does not occur, that, upon any just construc-
tion of the statute, can the right of voting be denied to a fiar, who is a proper
wadsetter, more than to the fiar of an irredeemable right. The fee is certainly in
him, and in no other person, during the not redemption ; he has all the use and
possession of the lands during the not redemption, that he would have had if his
right had been irredeemable. The law does not distinguish, whether the fiar
possesses by himself or by a liferenter. In both cases he is entitled to be upon
the roll, but with a preference to the liferenter as to the right of voting, who
appears and claims his vote.
It is said, that, being subjected to a liferent, is inconsistent with the nature of
a proper wadset, such as the statute 1681 must be supposed to have had in view ;
that the distinguishing characteristic of a proper wadset is, that the wadsetter
accept of the rent of the lands, with all the hazard attending them, in Satisfac-
tion of the annualrent of the wadset sum ; whereas, the fiar, in this case, is ex-
cluded from the rents, and can have no possession of the wadset lands during
the subsistence of the liferent; that he cannot take the oath of possession, where
he has nothing to possess; that the liferenter, in this case, possesses proprio jure ;
so that his possession cannot be constructed the possession of the nominal fiar.
But the respondent must own, he is not sensible of the force of this reason-
ing; for, although it is the nature of a proper wadset, that the wadsetter accepts
of the yearly profits of the subject, with all the hazards and burdens attending
them, in lieu of the interest of his money till redemption; yet it is by no means
Secr. 2. MEMBER of PARLIAMENT. I99
essential to a proper wadset, that the fiar should possess the lands himself; for,
although a right of liferent should be constituted in favour of another, the wad-
set right in the person of the fiar is not thereby affected. The liferenter draws
the yearly rents and profits during the subsistence of his right, and the posses-
sion of the liferenter is, in the eye of law, held to be the possession of the fiar;
and, in that view, the fiar is in perfect safety to take the oath of possession ; he
is equally safe with every fiar of a right of absolute property, who can have no
access to the rents during the subsistence of the liferent.
The respondent does not well understand what is meant by saying, that the
possession of the liferenter cannot, in this case, be held to be possession of the
fiar, because the liferenter possesses proprio jure. There is truly nothing in this
case which renders it different from numberless qualifications that have been
created of late years. In many cases, the liferent was not created as a burden
upon the fiar who granted the liferent ; but the proprietor did, in the present
case, in the same deed, create a right of liferent in favour of one, and a right
of fee in favour of another: And it was never doubted, that, in every such case,
both fiar and liferenter were thereby entitled to be put upon the roll, and that
the fiar was in safety to take the oath of possession, as being fictione juris in the
possession, by the possession of the liferenter. It is by no means necessary that
a right of liferent should flow from the fiar claiming in the right of that fee.
It makes no difference, whether the liferent right flows from the fiar himself, or
his author; or, whether the liferent was created anterior or subsequent, or at the:
precise same time with the right of the fiar. } .
It is, no doubt, true, that the liferenter, after his right is constituted and esta-
blished, so far possesses proprio jure, that his right does not thereafter depend
upon the will of the fiar. The right in him is indefeasible, and must continue
for life; and, if it were otherwise, it would afford a solid objection to the quali-
fication of the liferenter; but, although the liferenter possesses proprio jure, yet
still, in the eye of the law, the possession of the liferenter is considered to be
the possession of the fiar. There cannot be a doubt, that the possession of the
liferenter would be available to secure the right of the fiar, by prescription,
against every challenge that might lie at the instance of third parties; and, for
the same reason, it must likewise entitle him to be put upon the roll, and with
absolute safety to take the oath of possession when required.
The petitioner is next pleased to doubt even of the liferenter's qualification;.
and the respondent admits, that there might have been foundation for a doubt,
if the liferenter's right had been extinguishable upon redemption of the wadset,
though during his life; but, to prevent any objection on that head, the liferent
is, by the conception of the right, made to subsist during all the days of Major
Edmonstone's life; and, accordingly, the petitioners appear to have been advis-
ed, that the Major's qualification was undoubted; nor are they now entitled to ,
call it in question. - * *
No. 131.
2OO MEMBER or PARLIAMENT. Div. Iv.
No 131.
No 132.
Previous re-
gistration, for
year and day,
of a renunci-
ation by a
liferenter, is
not requisite
to entitle the
fiar to vote.
But, whatever may be the case as to the liferenter, it is, with submission,
thought, that the respondent, in virtue of his right of fee of these lands hold-
ing of the Crown, and of a sufficient valuation, has a clear title to be on the
roll ; and that it was a matter of moonshine in what manner the liferent was
constituted, or who is liferenter ; for the liferenter's possession must, in every
view, be considered as the possession of the fiar; and it is equally immaterial,
whether the fee be an irredeemable right of property, or a right of wadset, both
being equally good, by the act 1681, to constitute a freehold qualification.
* THE LORD's find, That the respondent, James Hamilton, is not entitled to
be enrolled in the roll of freeholders for the county of Dumbarton; therefore
grant warrant to expunge him.” - -
*
Act. Dan of Fataly. Alt. Macqueen, Ilay Campbell. - Clerk, Tail.
Fol. Dic. v. 3. p. 416. Fac. Col. No 79. p. 194.
1774, February 23. - - *
Mr JAMES ColquhotN against CAPTAIN DUNCAN URQUHART.
SIR LUDovick GRANT executed a proper wadset of certain lands affording a
freehold qualification, in favour of Sir James Colquhoun, in liferent, and of his
son Mr James Colquhoun, in fee. .
A few months before Michaelmas, Sir James granted to his son a renuncia-
tion of his liferent right; upon which the latter, at the Michaelmas meeting
claiming to be enrolled, it was objected to him, That his claim was premature,
as it ought to have been a year and a day posterior to the registration of the
renunciation; besides, that a proper wadset could not admit a double qualifica-
tion of fee and liferent. The freeholders having sustained the objections, Mr
Colquhoun complained to the Court, and * & .
Pleaded; The first part of the objection is founded upon not distinguihsing be.
tween the right of enrolment and that of voting, and in supposing Sir James's
renunciation to be an essential ingredient in the complainer's qualification;
whereas he had a good title to be enrolled, independent of the renunciation.
It was the charter and infeftment which constituted his freehold qualification 3
and whether the fee were affected with a liferent or not, the fiar's claim to be
enrolled was the same in both cases, whatever effect that circumstance might
have on the right of voting, which no doubt belongs to the liferenter, if he
chooses to take it ; but otherwise it as undoubtedly falls to the fiar. The re-
nunciation, therefore, being no ingredient in the complainer's-qualification, did
not require a year's previous registration. -
As to the second part of the objection, it is sufficient to observe, that the
statute 1681, which allows of proper wadsets being legal freehold qualifications,
SECT. 2. MEMBER OF PARLIAMENT. 2O I
so long as they stand unredeemed, authorises no such distinction with respect No 132.
to liferents, as if they could not subsist on a redeemable right.
Answered ; In this case the claim is not entered in the character of naked
fiar, to which the rendneiation would indeed not be essential, but in that of
sole proprietor, to constitute which the renunciation was necessary ; and, there-
fore, being an indispensable ingredient in the complainer's title, it ought, as
well as his charter and sasine, to have been completed a full year before the
enrolment. With regard to the other particular mentioned, it would seem that
the granting of a wadset to one person in liferent, and to another in fee, was
inconsistent with the nature of that right; for a right bearing ex facie to be
redeemable quandocumque, admits not of a liferent being created over it.
THE LORDs (the question being put to enroll simply, or qualificate) ‘ordered
“ the complainer to be enrolled simply.”
Act. Lockhart, j. Grant. Alt. Macqueen. . Clerk, Pringle.
Fol. Dic. v. 3. p. 416. Fac. Col. No Icg. p. 29 I.
–mºm------
O
againſt DALRYMPLE.
1776. March. . gºmºmº
. . . º No 133.
DALRYMPLE of Fordel claimed to be enrolled on certain lands, conveyed to **
him by Wemyss of Wemyss, redeemable at Whitsunday 1770, or any subse- f
quent Whitsunday, on payment or consignation of L. 20 Sterling. The word ..
wadset did not occur in the conveyance ; and it was objected to the title, That
it was not a wadset, but one of those redeemable rights, reprobated by the
act of Queen Anne. Answered, It is not necessary to the constitution of a
wadset, that there be a borrower and lender, or any loan or debt; it may be a
security for a gratuitous gift; nor is it necessary that there should be any
clause of requisition, as many of the old wadsets are without it. THE LORDS
repelled the objection; and their decision was affirmed upon appeal. See
APPENDIX.
Fol. Dic. v. 3. p. 416.
t
1789. March 6. * z
Sir WILLIAM For BEs, Baronet, and Others, against WILLIAM BLArR. N.
* .* No 134.
The wadset
T = g *...*
PRIOR to 1787, the Duke of Gordon had granted to Æneas Macintosh the of a fee of su-
periority,
*
*
ſo re • " - * -
liferent of the superiority of certain lands. A burdened
In 1787, the Duke conveyed to William Blair the fee of the superiority of . right
of 11terent, in
the same lands, redeemable on payment of L. 5o Sterling, “at the first term favour of ano.
‘ of Whitsunday, after the lapse of two years from the death of the liferenter, thºr Pºrso"
“...
C c ---
2O2 MEMBER OF PARI,IAMENT. TXIV. IV.
No 134.
found insuffi-
C. erit to con-
fer the privi-
leges of a
freeholder.
And, in virtue of this conveyance, the lands being of the requisite valuation,
Mr Blair was enrolled as a freeholder in the county of Aberdeen.
In a complaint preferred to the Court of Session in the name of Sir William
Forbes, and several other freeholders in that county, it was
Pleaded, In a wadset, lands are conveyed to a creditor in security of money
lent, and are to be retained by him till the debt be paid. And the difference
between what is called a proper and an improper wadset is, that, in the former,
the creditor, during the non-redemption, has the profits of the land for the
use of his money; while, in the latter, as he is not obliged to content himself
with the yearly produce of the lands, if not equal to the legal interest of the
sums lent, so he may be called upon to account, and to renounce his right, if
it shall appear that he has received enough for paying what is due to him. In
both cases, possession is an essential quality of the right; and, therefore, the
wadset of a right of superiority, burdened with a liferent, where the lands are,
of necessary consequence, occupied by the liferenter, must be quite irregular
and inept ; Stair, b. 2. tit. 10. § 9. ; lºrskine, b. 2. tit. 8. § 26.
Even although the constitution of such a wadset could be reconciled to feu-
dal principles, it seems altogether inadequate to the establishment cf a free-
hold qualification. When the statute of 1681 gave a preference, in this re-
spect, to proper wadsetters, over those having the right of reversion, it was
because the former appeared to have the more substantial interest in the lands,
and were in possession. But that reascn is not applicable to a case such as this,
in which the wadset may be followed with possession, for two years only, and
that after the death of the liferenter, an event which may not cocur during
he lifetime of the present holder of the wadset right. To rights of this sort it
is impossible to imagine that the Legislature ever meant to annex that valu-
able privilege ; and so it seems to have been determined, 1st July 1773, Sir
James Colquhoun against James Hamilton, No. 131. ſupra. ***
Anſwered, A wadset is a right in lands subject to redemption, and may be
distributed into as many parts as the most unlimited property. As it is possi-
ble to acquire an irredeemable right of fee, while the dispomer either reserves
the liferent to himself, or conveys it to a third party, so one may purchase a
redeemable right under the same limitations. In all those cases, it is only after
the death of the liferenter that the far can enter into the full enjoyment of his
right. But this circumstance cannot be thought anywise inconsistent with
feudal ideas. And it seems to be equally unimportant, whether the right of
liferent is or is not subject to the same privilege of redemption with the right
of fee; Stair, b. 2. tit. Io. § 2. Io. . . . . "
The other objection deduced from the statutes, relative to elections, appears
to be equally ill founded. It is, indeed, to proper wadsetters, in exclusion of
those holding other redeemable rights or conveyances in security, that the act
of 1681 has appropriated the right of voting as a freeholder. And the true
criterion of a proper wadset is, that the creditor has the use or produce of the
* *
* *
*
Secr. 3. MEMBER or PARLIAMENT. … 2O3
lands, unaccountably, for the use of his money. But it is no where required,
that this use shall commence at the same time that the money is advanced.
And where a sum is to be lent in this way, on an estate subject to a liferent,
or other temporary incumbrance, the lender, it is to be presumed, will frame
his bargain in such a manner, that the produce of the lands, for the period
during which he is entitled to possess, shall, on the whole, afford to him a
sufficient compensation for his being deprived, during a certain time, of that
part of his yearly income. In the case of Sir James Colquhoun against Hamil-
ton, the qualification does not seem to have been founded on a proper wadset,
like the present, but on a disposition in security; and, at any rate, the more
recent determination of 23d February 1774, Mr James Colquhoun against the
- Freeholders of Banffshire, No. 1 32, ſupra. was agreeable to the argument
maintained for the respondent. ^ - .
A majority of the Court were of opinion, that such a wadset as the one in
question did not give a freehold qualification.
THE LORDs found, “That the freeholders did wrong in admitting Mr Blair
to the roll, and ordered his name to be expunged,” &c.
Mr Blair preferred a reclaiming petition, upon which, however, in conse-
quence of certain subsequent proceedings, it became unnecessary to give any
determination. - - -
Act. Dean of Faculty, Wight, Hay, e alii. - Alt. G. Ferguſon, Tait, et aſii.
- . - - Clerk, Gordon. -
Ç. Fol. Dic. v. 3. p. 416. Fac. Col. No 66, p. I 19.
SEC T. III.
Nominal and Fictitious.
1745. July 30.
The FREEHOLDERS of KINCARDINESHIRE againſt BURNET of Crigie.
BURNET, Elder of Crigie, disponed part of his estate to his eldest son, and
he gave a charter thereof to his father, to be held of him blench. -
Objected to the title of the son to stand on the roll of electors for the said
shire, That he had no real interest, but that his title was fictitious, nominal
and created on purpose to make a vote; and, therefore, ought not to be sus-
… C. c 2 . * . *
No I 34-
No 135.
*
*
2O4 MEMBER of PARLIAMENT. - DIV. IV.
No 135.
, {
# 43.
tained, in terms of the statute anno 7mo Georgii II. and there was a difference
betwixt voting on a superiority and this case, where the superiority was made
on purpose, and vested in an eldest son, whö being to succeed to his father in
the property, could not have so much as the casualty of entering heirs.
Anſwered, That a superiority was a good title, and the interest here, of how
little value soever, was real, as he did not hold it for the behoof of any one
else, nor was under any obligation to denude.
"THE LORDs repelled the objection.
*
Act. Burnet. - Alt. H. Home.
1746. June 19–IN this question, wherein the determination of the Court,
3oth July 1745, sustaining the respondent's title, is already observed, a re-
claiming petition was presented and answered, in which what most weigh-
ed was, that the claimer of a vote behoved to depone that he had not made any
disposition of the lands or rents thereof, or any promise for that effect, other
than appeared by the contents of the rights under which he claimed.
THE LORDs altered their interlocutor, and sustained the objection.
f
Petit. Ferguson. Resp. H. Home. Clerk, Güon.
Fol. Dic. v. 3. p. 417. D. Falconer, v. 1. p. 127. & No. 118. p. 146.
*** Lord Kames reports this case.
1746. june 19.—WILLIAM BURNET of Crigie, intending to qualify his son
to be put upon the roll of feeholders in the county of Kincardine, disponed
to him certain lands; and the son expede a charter under the Great Seal, and
granted a charter to his father of the same lands, to be held of him for pay-
ment of a blench-duty of two pennies Scots, ſi petatur tantum. This qualifi-
cation was called in question by a complaint laid upon the statute, at the in-
stance of some of the freeholders of the shire. And the objection against it was,
That it is manifestly collusive, and upon the statute anno 7mo Geo. II. a nomi-
nal or fictitious estate, created in order to enable the young, Gentleman to vote
for a Member to serve in Parliament. • .
In answer to this objection it was pleaded, That it is not relevant to say,
that a man's title to an estate is created in order to procure a vote; for such
titles are created every day, where the principal view of the purchaser is in
order to have a vote; but, in terms of the statute, it must be a nominal or
fictitious title, created in order to a vote. Now, it is clearly expressed in the
other clauses of the oath of trust, what a nominal or fictitious title is, viz.
‘Where the person in the fee is under an obligation to re-dispone; and, con-
sequently, holds the estate depending on the will of another, or is under an
obligation to make the rents and profits furthcoming to another; and, con-
&
&
SECT. 3. MEMBER or PARLIAMENT. 2e 5
‘ sequently, does not hold the estate for his own use and benefit.' And to ap-
ply this to the present case, it may be true that Mr Burnet's estate affords him
little rent or profit; but then it is likewise true, that he enjoys all the rents
and profits which arise out of that estate, and that he is not bound to account
for these rents and profits to any one, nor stands under any obligation to re-
convey the estate. So that it cannot be qualified in terms of the statute, that
his title is nominal or fictitious ; though it may be true, that the principal or
only intendment of the transaction was to entitle him to a vote. •
“THE LORD's first repelled, and afterwards sustained, the objection.”
No 135.
Rem. Dec. v. 2. No. 75. p. 116-
1746. july 30. g
- FREEHOLDERS of DUMFRIES-SHIRE against FERGusson of Craigdarroch.
* - * - No 136.
w - ~ er sº “. - * * '. A superior,
FERGusson of Craigdarroch stood on the roll of freeholders of Dumfries, as āj
being superior of the two-and-a-half merk land of Dunreggan. - º ºn
Objected, That William Fergusson of Craigdarroch had, anno 1627, disponed discharge ºf
- º s e { 9 - *
these lands, to be held of himself feu for 16 merks Scots, for which feu-duty the feu!duty gº
* - sº found entitled
he, at the same time, granted a perpetual discharge, obliging himself to grant to vote.
termly discharges as it fell due, if needful ; so that he was only nominally su-
perior. k * - , S. - *.
Anſwered, That he retained still right to the other casualties of superiority.
, Observed on the Bench, That this right could not be at that time created
fictitiously to give a vote, but the intent was plain ; the lands holding ward,
could not be feued out, but at a competent avail; and, therefore, to salve this,
a discharge was granted of the feu-duty contained in the charter. -
The LoRDs repelled the objection. . .
v. I. No. 138. p. 173.
- ef
Fol. Dic. v. 3. p. 4. 7. D. Falconer, .-
anº tº - — t -
1755. january 9. 3. ' ' - ' ' . . . . . . - f
THoMAs ForresTER of Dunnovan, and Other FREEHoldeRs.of Stirlingshire, ,
against ANDREw FLETCHER, Esq; Younger of Salton, Lieutenant JAMES
CAMPBELL, and DAVID GourLY of Kepdarroch.
: , 3. . . - 'w
* ** - - - a
& * *. - wº * - * - '." º: ...' s ** tº * -
ANDREw FLETCHER, Younger of Salton, Lieutenant James Campbell, and .Nº.37.
.# . - ſº - * * º # - $ |-- § . - |- 2.1% º I I gilt CŞ
David Gourly, were, at the meeting for electing a Member to serve in Parlia- flºus c:
ment for the county cf. Stirling, on the 17th of May 1754, enrolled in the roll º
of freeholders. #
\ ſº
266 - MEMBER or PARLIAMENT. Div. IV.
No 137.
to a vote,
though the
charter con-
tained an obli-
gation to re.
aispone the
lands.
Thomas Forrester of Dunnovan, and other freeholders, complained to the
Court of Session, and objected, That these three Gentlemen ought not to have
been enrolled ; because the lands, under which they claimed right to vote,
had lately been disponed to them by Sir James Livingstone and James Camp-
bell of Ardkinglas ; and the dispositions from Sir James Livingstone and James
Campbell, in favour of the said three Gentlemen, and the charters and sasines
following thereon, contained a proviso, that, so soon as they had completed
their titles to the lands, as immediate vassals to the Crown, they should re-
dispone the property of the lands, irredeemably, in favour of their immediate
authors, the said Sir James Livingstone in liferent, and the said James Camp-
bell, his heirs, &c. in fee, who were to hold the lands of the said three Gen-
tlemen for a small elusory feu-duty, and all the casualties of superiority to be
taxed to smail elusory sums; and, therefore, it was evident their titles to the
lands were nominal and fictitious, created only with a view to entitle to vote,
contrary to the act 7mo Geo. II. As the law presently stands, a right of supe-
riority entitles to a vote ; but where that Superiority is, as in the present case,
created on purpose to entitle to a vote, under an obligation of immediately re-
disponing the property, and taxing the casualties of superiority to small eluso-
ry sums, so that the superiority can be of no value whatever; in such a case,
the right falls under both the words and meaning of the foresaid statute ; and,
agreeable to this, the Lords decided, Freeholders of Kincardineshire against
Burnet, Younger of Crigie, No 135. rupra. * * -
Anſwered for the defenders, That the objection made to their qualifications
to vote, when duly attended to, resolved into this, that a right of superiority
did not entitle to vote, which cannot be maintained ; as, by law, all the
Crown's vassals, who have lands valued at L. 4oo, or upwards, are entitled to
vote, without regarding whether these vassals have the dominium utile, or only
the dominium directum, of the lands; and, therefore, the act 7mo Geo. II. was
never meant to strike against such qualifications ; and the taxing the casualties
does not hurt their right to vote; as a superior may lawfully tax, or even dis-
charge, the casualties of superiority.
“THE LORDs repelled the objections made to the respondents' qualifications ;
and found them sufficiently entitled to continue on the roll of freeholders for
the county of Stirling; and dismissed the complaint.” •
Act. 7. Dunder, Bruce, et Cockburn. Alt. Lockhart et 7. Grant,
• - - Clerk, Forbes. -
B. - Fol. Dic. v. 3. p. 417. Fac. Col. No. 124, p. 184.
SECT. 3. MEMBER OF PARLIAMENT.
207
1760. February 5. i -
CAMPBELL of Shawfield, and GRAHAM of Garthmore, againſt MUIR of Caldwall.
Found, that titles, upon which a claim of enrolment is entered, cannot be
rejected as nominal and fictitious, if the claimant be really possessed of the
whole right contained in those titles, even where they have been made up in
such a manner as to make it presumeable that the sole intention was to create
a VOtC. - -
Fol. Dic. v. 3. p. 418. Fac. Col.
2 rºw L * * c Nſo Q n =r nze Tris TFP ºr
*** This case is No 8. p. 7783. voce Jus TERTII.
*** A similar decision was pronounced, 22d February 1760, Grant of
Drumpad against Campbell, and other Freeholders of Dumbarton, No 129.
p. 8740. - º
M. - *y-mººn---
1761. july 28. STEwART againſt DALRYMPLE.
*
THE LORDs repelled the objection of nominal and fictitious, where the feu-
duty payable to the Crown was L. 24 Scots, and the blench duty payable to
the claimant was one penny Scots, with relief of the feu-duty and other public
burdens.
Fol. Dic. v. 3. p. 403. Fac. Col.
*.* This case is No 18. Jupra.
1762. January 5.
ALEXANDER GoLDIE of Southwick againſt ALEXARDER GORDON, younger, of
Campbelton.
At the Michaelmas meeting of the freeholders of the stewartry of Kirkcud-
bright, held upon the 13th of October 1761, Alexander Cordon, younger, of
Campbelton, claimed to be enrolled as proprietor of certain lands which had
been disponed to him by his father. ~ - -
Alexander Goldie; a freeholder, present at the meeting, objected, That the
claimant's title was altogether nominal and fictitious, and that no true and
real estate was devised to him by the disposition from his father, which, be-
sides being limited to heirs only, expressly provided, “That no debts contract-
ed, or deeds done, or to be contracted and done, by the said Alc:ánder
No 138,
No 139,
No 14c.
A charter
proceeding
upon a dispo-
sition, bear-
ing, “ That
no debts con-
tracted, or
deeds done, .
or to be con-
tracted or
done, by the
alsporte du-
1 ing the life
of tile dislºgn-
too? MEMBER of PARLIAMENT. Div. IV.
No 140.
er, without
his consent,
should affect
the lands dis-
poned, or the
rents thereof,’
found to be a
sufficient title
for enrolment.
No 141.
• Gordon, during the life of his father, without his consent, should ever affect
“ the said lands, or rents thereof.” A clause which plainly pointed out, that
the claimant had no estate at all during the life of his father.
The claimant answered, That he was in the absolute and irredeemable pos-
session of the lands: That the clause of restriction in the disposition could have
no influence, as there was no express prohibition from selling, and no clause
declaring any debts contracted by him to be null; and that it was common
for heritors to be admitted upon the roll, who are fettered with the strictest
... entails.
Thereafter, the claimant took the oath of trust and possession; but Mr
Goldie having still insisted, that it appeared ex facie of the titles produced,
that no estate was vested in his person during the life of his father, the vote
was put, and, by a plurality of voices, the claimant was admitted upon the
roll. - - -
Mr Goldie complained to the Court of Session upon the grounds above stated;
and, º -
THE LORDs repelled the objection*.
Act. Copland. Alt. Lockhart.
A. W. Fol Dic. v. 3. p. 423. Fac. Col. No 72, p. 163.

* *
2% -
1768. March 9. - SKENE, $6. against WALLACE.
IN this and a multitude of other cases, the Court of Session introduced a
practice of putting all freeholders, against whom complaints were depending,
though upon different groundgºto answer the following or similar interroga-
tories: Whether they had accepted the liferent or wadset on which they claim-
ed with any other motive than that of serving one of the candidates, or for any
other purpose but that of creating a vote * Whether they had actually advan-
ced any money for their disposition, or for making up their titles Whether
they ever had the title-deeds in their possession ? And if they were at the ex-
pense of defending against the complaint And upon the claimant's either re-
fusing to answer, or answering negatively, an interlocutor was pronounced,
finding that the estate on which he had been enrolled was not a real estate in
his person, but that his title were nominal and fictitious, created or reserved in
order to entitle him to vote at the ensuing election, and therefore ordering him
to be struck off the roll. But the House of Lords (9th May 1790) disapproved
cf this practice, and reversed the judgments.-See APPEN51x.
Fol. Dic. v. 3. p. 418.
* By mistake in the Faculty Collection, the objection is said to have been sustained.
-
--tº-
MEMBER of PARLIAMENT. 2O3
SECT. 3.
1787. February 20. WILLIAM MAcDowAL againſt GEORGE BUCHANAN.
MR SPEIRs of Elderslie held his estate in the county of Renfrew under a
strict entail, by which the granting of wadsets or liferents of the superiority
was expressly prohibited. -
As this stood in the way of his creating freehold qualifications, Mr Speirs ob-
tained from such of the existing heirs of entail as were of age, and from the
tutors and curators of those who were minors, an obligation, whereby, on the
narrative, ‘That the liferent-conveyances proposed by Mr Speirs were not with-
in the meaning, though within the words of the prohibition, since they were
* not attended with any deterioration of the estate, but, on the contrary, might
‘ increase the influence of his family, they became bound to refrain from
bringing any action against him on that account ; and likewise, in case of any
challenge by the after existing heirs of entail, by which the estate might de-
Volve on them, to account to him for the rents, as if no forfeiture had been in-
º
curred.
This obligation, or deed of consent, was subscribed by Mr George Buchanan,
as curator of some of the heirs of entail. He afterwards accepted one of the
liferent-estates created by Mr Speirs, the yearly produce of which was only 6d
8-12ths Sterling. He was enrolled as a freeholder at the meeting for election
in 1786, and took the oaths prescribed by law.
Mr Macdowall, a freeholder in the county, complained to the Court of Ses-
sion of this enrolment, insisting, that Mr Buchanan's qualification was nonminal
and fictitious. In support of this objection, it was
Pleaded ; In Scotland the right of chušing representatives to serve in Par-
liament has ever been so constituted, as to afford at the same time a prodſ of
the interest which the elector has in the welfare of the state, and a pledge for
the independence of his conduct. Thus it has been required, that he should
be possessed of a länded estate of some value. It has been farther established,
in order to preserve an equality among the persons entitled to this important
privilege, that the influence of each landholder should not be in proportion to
the extent of his property, but that every one truly possessed of the legal
qualification should have the same weight in the national councils.
A formal promulgation of these rules, which result from the original flame
of our government, was not necessary. Indeed, as attendance in Parliament
was at first esteemed a burden, rather than a privilege, it would be singular if
any limitation of this sort had existed. But afterwards, when it became an
object of ambitious pursuit, the Legislature interposed, for correcting the
abuses which had thus been introduced, and bringing back the system of elec-
tion to its constitutional basis. As it was at first attempted to fabricate illicit
qualifications, by means of redeemable rights, wherein the elector was entirely
subject to the will of the person from whom the qualification had been obtain-
D d
No 142.
An heir of
entail obtain-
ed an obliga-
tion from the
substitutes,
not to chal-
enge aliena-
tions he was
about to
make in order
to create free-
hold qualifi-
Cation.S.
The curator
for some of
those substi-
tutes accept-
ed one of the
rights.
Found to be
nominal and
fictitions,
2 IC - MEMBER or PARLIAMENT. TXIV. IV.
No 142.
ed, or by conveyances in trust, in which the feudal estate, though apparently
in the voter, was, as well as the right of voting, substantially in another, the
statute Ioth Anne, c. 6, was enacted, for declaring, in terms of the common
law, that neither redeemable nor confidential estates afforded a proper right of
voting. For the more speedy discovery also of those disabilities, which did not
appear from the writings exhibited to the freeholders, every claimant was re-
quired to swear, that he did not hold the estate intrust, or under an obligation
to reconvey.
Afterwards new methods of creating fraudulent qualifications were devised,
the estate conveyed to the intended voter being so inconsiderable as to render
an express limitation of his right unnecessary.
As the words of the oath imposed by the act of Queen Anne were not un-
derstood to reach this case, the act 7th Geo. II. c. 16. substituted another in its
place. By this last statute, all qualifications not founded on a substantial title
of property were declared to be contrary to law; the freeholder being requir-
ed, under a forfeiture of his right of voting, to swear, that his estate was not
nominal and fictitious. In the same manner, as every freeholder was obliged
to swear that he did not hold the estate in trust, or for the behoof of another,
those were, as formerly, precluded who either possessed the feudal estate, or-
the right of voting in that way. The statute went still farther ; for, in order
to prevent the partition of landed property with a view merely to create rights
of voting, it required the freeholder to swear, that his estate was not created
or reserved in him for this purpose. - -
While, however, the Legislature was thus endeavouring to preserve the right.
of election in those to whom the constitution had entrusted it, it never could,
be in view, by rendering the oath imposed by 7th Geo.II. the only criterion in ,
questions of this sort, and thereby making every claimant the sole and exclu-
sive judge of his own conduct, to increase those abuses which already existed.
The oath was introduced merely as a test, by which, without precluding those :
more formal methods of investigation that might arise from the particular cir-
cumstances of every case, the question might at once be brought home to the
conscience of the voter. So the oaths of bribery and corruption, which may
be tendered at the election of Members of Parliament, and on other similar oc-.
casions, have never been understood to prevent any person interested from af.
terwards establishing the actual commission of those crimes. It is indeed £rue,
that a claimant, having once taken the statutory oath, is not obliged to answer:
particular interrogatories, so as to involve him in perjury; and, on this prin-
ciple, any decisions which may be quoted on the other side have evidently pro-.
ceeded. But where the fraudulent nature of the qualification is clearly dis-
cernible from the right itself, and still more, where the objection arising from ,
the unproductive situation of the claimant's estate, as appearing from his title-
deeds, is confirmed by other circumstances, a very différent determination must
be given. In the present instance, not one only, but all the requisites of a le-
SECT. 3. MEMBER or PARLIAMENT. - 2 II
gal qualification, are wanting. The conveyance in favour of the claimant, far.
from creating in him a substantial right of property, is evidently such as no
one would accept of, unless for the purpose of a right to vote. And besides,
he has in effect acknowledged, that he does not hold it for himself, or for his
own behoof, but dependent on the will, and for increasing the political influ-
ence of another. - -
Answered ; The Parliamentary representation of Scotland, as well as the
form of our government, derives its original from the feudal system. *
At first every immediate vassal of the Crown was obliged, in person, to at-
tend the King's baron-courts. Afterwards those possessed of smaller estates
obtained an exemption ; but even when these were, in process of time, exclud-
ed, and when, in lieu of personal attendance, they were authorised to send re-
presentatives, this was not regulated by the yearly income of each Crown's vas-
sal, which was often greatly impaired by subinfeudations, but by the public.
subsidies due out of the lands. Act 1427, c. 101.; 1429, c. 127. ; 1457, c. 75, ;
1503, c. 78. ; I587, c. 114. . . -
The statute of 1661, c. 35. may perhaps appear to have occasioned a devia-
tion from the general rule, by requiring the voter to be possessed of ten chal-
iders of victual, or L. roco of yearly income; but this only took place where
the old extent, the rate by which the taxes were anciently levied, was not
known; and by act 1681, c. 21. which was in 1707 made a fundamental article
of the Union of the two kingdoms, it was determined, that liferents or wad.
sets of superiority holding of the Crown, and of the requisite valuation either
according to the old extent, or according to the valued rent, which is now the
rule in exacting the land-tax, should, without any regard to the intrinsic worth
-or yearly produce of these rights, afford an unexceptionable title to vote.
. Thus the design that has been ascribed to the Scottish Legislature, of annex.
sing political influence to real property, and of restraining such conveyances as
might be made for the sole purpose of conferring a right to vote, appears to be
altogether imaginary. Nor were the British statutes of 10th Anne, and 7th
“Geo. II. intended to alter this part of our constitutional law. These enact-
ments, besides disabling persons holding redeemable estates, were calculated to
prevent the creation of nominal and collusive qualifications, in which either the
voter did not truly hold the estate as it was described in his title-deeds, or was
tied down by an express agreement, or at least by Some tacit understanding, to
-exercise the right of election at the will or for the behoof of another. But a
-qualification, in which the claimant has in his Person every right which the
writings exhibited for him import, cannot be held to be nominal and fictitious.
And although he may have acquired the estate for the purpose of voting, this
will not disqualify him, if he can swear that this was done for his own behoof.
Otherwise, indeed, this valuable privilege might be confined to those who are
quite indifferent to the good of the community, or be entirely annihilated.
... • |D d 2 --
No I42.
Tº ſ 2, MEMBER or PARLIAMENT. Div. IV.
No 342.
To this reasoning the peculiar situation of those judicatories in which all
questions concerning freehold qualifications must be determined, gives additional
force. Anciently the freeholders themselves, at their head-courts, were the
only judges in matters of this sort; and the law required the feudal titles of each
claimant to be exhibited before them. But as, prior to the acts of Queen Anne
and Geo. II. they had no authority to examine either the person demanding
enrolment, or third parties, as to the purpose of the qualification, so the oaths
introduced by these statutes afford the only method of investigation which they
can now use, in order to discover whether a qualification be fraudulent or not.
And as no court judging by way of appeal can determine on evidence which
neither was nor could be produced in that in which the question was originally
tried ; so it is not in the power of the Court of Session, after a claimant has, at
a meeting of freeholders, taken the requisite oaths, to enter into any farther
enquiry. - *
According to these principles almost every question that has occurred has
been determined in the Court of Session; and where a contrary decision was
given, it has been uniformly reversed in the House of Lords. Thus liferents
or wadsets of the Superiority alone, or even those in which the feu-duties as
well as the casualties of superiority had been renounced, or such as had been
granted by an heir of entail, the limitation of whose right appeared from the
investitures of the claimant, have been found to constitute an unexceptionable
freehold qualification; while every attempt to shew, from circumstances of an
extrinsic nature, either acknowledged by the party himself, or ascertained by
other evidence, that the estate had been created or reserved in him for the mere
purpose of giving a right to vote, has been frustrated. In the present case, no
obligation has been imposed on the freeholder, either to re-convey the feudal
estate, or to exercise his right of voting at the will of another person; and he
has farther sworn, that he has come under no engagement inconsistent with the
external appearance of his right, 3oth July 1745, Burnet of Crigie contra the
Freeholders of Aberdeenshire, No 135, ſupra ; 20th July 1746, Fergusson
of Craigdarroch contra the Freeholders of Dumfries-shire, No 136. ſupra;
24th June 1747, Stewart of Barvennan and Hay of Balcarry contra the Free-
holders of Wigtonshire, No 126, ſupra; 9th January 1755, Forrester of De-
novan contra Fletcher of Salton, No I37. supra; 22d Feb. I 760, Lauchlan
Grant contra Campbell and Others, No 129 ſupra; 28th July 1761, Stewart
contra Dalrymple, No 18. ſupra; House of Lords, 9th May 1770, George
Skene contra David Wallace, No I41. supra. -
When the question between these parties came to be determined, a separate
objection was stated by one of the Judges, on account of the form of the wri-
tings employed in the constitution of the claimant's right. Mr Speirs, the
granter, had, as usual, conveyed the property of his lands to a trustee, who
took infeftment. He afterwards obtained from the Crown a new charter of the
superiority, containing a precept of Sasine, which he assigned in liferent, as far
SECT. 3. MEMBER of PARLIAMENT. 213
as was necessary, to the several intended voters. After the liferenters were in-
feft, the trustee re-conveyed the property to Mr Speirs, who in this way be-
came fiar of the superiority, and proprietor of the lands. This, it was said, was
quite inconsistent with feudal principles, and equally so with the law of elec-
tion, which, with regard to qualifications founded on rights of superiority, re-
quired that there should be a proper vassal, by whom the accustomed presta-
tions might be performed. The practice of separating the property from the
superiority, as had been done in this case, was said to originate from this cause.
By a majority of the Judges, however, this objection was not thought to be
well founded. They observed, that there was no inconsistency, even accord-
ing to the strictest feudal ideas, in one person being at the same time superior
and vassal in the same lands; and this often happened in cases altogether un-
connected with political considerations. The previous separation of the pro-
perty and superiority, too, in the constitution of freehold qualifications, was
only consequentially necessary, that the voter might be able to swear, that he
was in possession of all the right that his titles imported, which he could not do,
if, after being fully vested both in the property and superiority of the lands, he
had re-conveyed the former to the person from whom he had obtained it.
With regard to the general question, a great difference of sentiment prevail-
ed. By some of the Judges it was thought, that on account of the former de-
cisions, the objection here urged was inadmissible ; and that it was only by the
oath introduced by 7th Geo. H. that an inquiry could now be instituted, to dis-
cover whether a qualification, ex facie regular, and not limited by any proper
déed of defeasance, was fraudulent or not.
Other of the Judges were of opinion, that as the writing subscribed by the
claimant did not, in this case, afford sufficient evidence of his holding the
estate conveyed to him, in trust for the granter, or under an obligation to vote
according to his wishes ; so the objection of nominality, arising from the small
value of the right, considered merely in a peeuniary view, was not founded in
the principles of our élection law. It might have been wise in our forefathers,
it was said, to require from each elector a proof of his independence, and of
his interest in the welfare of the community; by they had not been influenced
by considerations of this sort, The right of voting, independently of any pa-
trimonial advantage, had been made a valuable estate, and the subject of com-
merce; and although, from the great change of manners, this was now the oc-
casion of many inconveniencies, it did not belong to courts of justice to apply
a remedy, by giving a different effect to a statutory right than was originally
intended by the Legislature itself. -
Some of the Judges, again, who considered the objection as well founded,
seemed to lay, the strest of their opinion on the statutes I oth Anne and 7th
Geo. II. Although by the act 1681, no provision was made against fraudulent
qualifications, because they were at the time unknown, this, it was said, had
been effectually remedied by the subsequent statutes in 1712 and 1735, which
No 142.
2. I4. MEMBER OF PARLIAMENT. Div. IV. .
No 142.
No 143.
A person was
enrolled on a
liferent of
not only marked out the circumstances by which the legal qualifications might
be distinguished from those of a different description, but also established one
mode of trial, by which those circumstances might be discovered in the court of
freeholders, without, however, limiting the judicatories in which the question
might afterwards be discussed from resorting to others equally satisfactory. It
would have been a most impolitic regulation, to put it into the power of every
one possessed of an illicit qualification, by taking the oath at the requisition of a
person in the same interest, to place his conduct beyond the reach of challenge.
Jt would also be contrary to the general principles of the law of Scotland, in which
ifraud may be proved by every sort of evidence which the circumstances of the
case afford. From the former decisions, it was farther said, no proper precedent
could arise. It was the nature of fraud to assume various colours and disguises;
and it could not with any reason be thought, that because in one or more in-
stances the detection had appeared to be incomplete, no attempt of the same
kind was ever afterwards to be permitted. -
Others of the Judges, concurring in the same opinion as to the illegality of
such qualifications as the present, considered them to be contrary to the statute
of 1681; and that, as it was then meant to annex this valuable right to landed
property, and to give only one vote to each proprietor, so every contrivance
framed to evade this purpose was a fraud against the law, and of course illegal
and inept. If those unreal qualifications which were now in use had existed in
1681, it could not be imagined that the statute would have been silent on that
head. It therefore could not be deemed an improper exercise of authority, in
Judges directed, not merely by the words, but also by the meaning of the Le-
gislature, to give that effect to this statute which was necessary for maintaining
the rights of election on a proper footing.
The judgment of the Court was in these words : -
“THE Lords having considered the petition and complaint, with the answers
thereto, and having heard parties procurators in their own presence, and having
advised the memorials hinc inde, they find, That the respondent’s qualification
is nominal and fictitious, and sustain the objection to his enrolment : Find,
That the freeholders did wrong in admitting him to the roll; and ordain his
name to be expunged.” See No 40, supra.
For the Complainer, Lord Advocate, Blair, Geo. Fergusſon, Honyman.
For the Respondent, Dean of Faculty, Wight, Maclaurin. Clerk, Robertron.
*C. Fol. Dic. v. 3. p. 418. Fac. Col. No 313. p. 482.
1787. February 20. * ~ ...”
John CAMPBELL and ARCHIBALD Top against The Honourable
WILLIAM ELPHINSTONE.
MR ELPHINsroNE was admitted to the roll of freeholders in the county of
Renfrew, at the meeting for election in 1786.
Secr. 3. MEMBER of PARLIAMENT. 2 I 5
• . . . . . . . . . . . . \ . * NT2 . .
His titles, derived from Mr Shaw Stewart, proprietor of the estate of Green- No. I43.
ock, who was fettered by an entail of the strictest sort, imported a bare liferent ãº,
of superiority, the pecuniary advantages of which were nowise adequate to the *:::::: .*
º tº s - strict entall,
expense of making out the necessary writings. - of which life-
e - - ---. g - º rent the pe-
A. majority of the Judges were of opinion, That the qualification grounded * cuniary emo-
these titles was nominal and fictitious. A conveyance from the proprietor of an lument was
ºlar e 2. tº & not equal to
entailed estate, it was observed, might, in some instances, afford an unexcep- ... j.
inno º in A; et; r.e.-: el- . : ſº.--~ +: of making
tionable right to vote. But in distinguishing real qualifications from such as . Ile-
were nominal and fictitious, the circumstance of the person from whom the cessary writ-
right was obtained being under restraints of this sort, had a considerable weight, †iºn
as it could hardly be doubted, that the grantee was at least under an implied i #.
obligation to reconvey his right whenever this became necessary to prevent a
forfeiture; and when to this was joined the presumption arising from the limit-
ed nature of the right itself, it was impossible to consider it as one to which the
Legislature meant to annex a right of voting.
THE LORDs found, “That Mr Elphinstone's qualification was nominal and .
fictitious, and that the freeholders did wrong in admitting him to the roll.”
Act. Lord Advocate, et alii. Alt. Dean of Faculty, et alii. Clerk, Robertson.
6. Fol. Dic. v. 3. p. 419. Fac. Col. No.3 I5. p. 489.
*** This case was appealed:
THE House of LoRDs, 30th April 1787, or DERED, “That the cause be re--
mitted back to the Court of Session in Scotland, to hear parties farther there-
upon, with liberty to receive such new allegations and evidence as the occasion
may require.”
smº Sºº-
1787. February 20. John CAMPBELL and Others against WILLIAM INGRAM. N
- O IA Als.
The right in virtue of which Mr Ingram was admitted to the roll of freehold- I44.
ers in the county of Renfrew, was a naked liferent of superiority, created only
a few years before. The feu-duty did not exceed ten shillings, and the casual-
ties were taxed at double the feu-duty. - -
THE LORDs, on a complaint, preferred in the name of John Campbell, and
others, “found, That the freeholders did wrong in admitting Mr Ingram to the
roll, and ordered his name to be expunged.” - ---
Act. Go. Ferguſson, et alii. Alt. Dean of Faculty, et alii. clerk, Robertson.
C. - Fol. Dic. v. 3. p. 419, Fac, Col. No 316. p. 490.
216 MEMBER or PARLIAMENT. DIV. IV.
No. 145.
No 146.
No 147.
1787. February 20. ScorT and ToD against MILLAR.
MR MILLAR's qualification was the fee of the superiority of Ardgowan, con-
veyed to him by Sir Michael Stewart, with the exception of a liferent for-
merly conveyed to another person. The yearly feu-duties amounted only to
L.2 : 14: 8d. Sterling. The Lords sustained the qualification.
- , Fol. Dic. v. 3. p. 419. Fac, Cal.
*** This case is No 41. ſupra.
- - - 4
-
ºr ºn * º
1787. February 20.
JoHN LAMONT and JAMES CAMPBELL, against John ALSTON, Jun.
THE feudal titles, in virtue of which Mír Alston, jun. was enrolled among the
freeholders of the county of Renfrew, imported only a liferent of the superio-
rity, which, considered merely as a patrimonial right, was equally nominal with
any of those which had been rejected by the Court. -
But it appeared that the first separation of the property from the superiority,
which took place about thirty years before, had not originated from any politi.
cal motives. •
On this ground, after revising a petition and complaint, in the name of John
Lamont and James Campbell, with answers for Mr John Alston, jun.
THE LORDs repelled the objection, and dismsssed the complaint.
Act. Dean of Faculty, et alii. Alt. B/air, et alii. Clerk, Robertson.
C. Fol. Dic. v. 3. p. 419. Fac, Col. No 318. p. 492.
—amº-
1787. February 20. - -
John Roebuck, Jun. against SIR WILLIAM CUNNINGHAM and Others.
MR Roebuck claimed to be enrolled as a freeholder in the county of Ren-
frew, his right being a liferent of superiority, constituted by a recent separation
of the property from the superiority, for the obvious purpose of creating a free-
hold qualification. ..."
But the annual feu-duties exigible by Mr Roebuck were considerable, amount-
ing to L.71 : 7 : 8d. Scots, and the casualties of superiority were not taxed.
The freeholders having refused to admit Mr Roebuck, the LoRDs, after ad
vising a petition and complaint, with answers,
Sect. 3. MEMBER of PARLIAMENT. 217
“ Found, That the freeholders did wrong, and ordained Mr Roebuck's name
to be added to the roll." -* - -
Alt. Dean of Faculty, et alii. clerk, Rolerton.
Fol. Dic. v. 3. p. 419. Fac. Col. No 319. p. 493.
Act. Gee. Ferguſson, et alii.
C.
—ºm-
1787. February 20. WILLIAM MDowAll against GEORGE CRAwford.
IN the year 1781, George Crawford was enrolled among the freeholders of the
county of Renfrew, as superior of the lands of Langside. -
In the year 1783, he conveyed his right in these lands by a disposition, con-
taining a procuratory of resignation, and a precept of sasine, to Lord Sempill,
who immediately took infeftment in virtue of the precept. - . .
So matters continued till the year 1786, when an objection was regularl
lodged by Mr M-Dowall to Mr Crawford's continuing on the roll; and, on 9th
October of that year, being the day before the meeting for election, Lord Sem-
pill executed a procuratory of resignation, ad remanentiam, in the hands of
Mr Crawford, and the instrument following thereon was immediately re-
corded. - k – -
At the meeting for election, Mr M-Dowall objected to Mr Crawford's qualifi-
cation; 1st, As being contrary to the act Ioth Ann. requiring the right.of the
freeholder to be complete twelve months before the election, Russell contra Fer-
guson, 7th March 1781, infra, b, t: ; and, 2dly, Because the estate having been
clearly reserved in Mr Crawford, for the purpose of giving him a right of vot-
ing, was thus in defraud of the statutes relative to elections, particularly that
of 7th Geo. II. - -
This objection, which was over-ruled by the freeholders, having been repeat.
ed in the Court of Session, in consequence of a complaint in the name of
Mr M.Dowall. . . . -
“THE LORDs repelled the objection, and dismissed the complaint.”
Alt. Wight, et alii. Clerk, Robertson.
Fol. Dic. v. 3. p. 419. Fac. Col. No 320. p. 494.
Act. Blair, et alii.
1788. March 6. HENRY LINDSAY against WILLIAM DRYSDALE.
MR LINDsay's claim to be enrolled among the freeholders of the county of
Fife, as liferent-superior of certain lands, was rejected at the meeting for elec-
tion in 1787, the freeholders considering the feudal titles exhibited for him as
nominal and fictitious. - - -
- E e
No 147.
No 148.
Objection of
the estate be-
ing reserved
in the free-
holder for the
purpose of -
giving him a
right to vote,
repelled.
No 149.
The trifling
pecuniary
value of an
estate giving

218
MEMBER OF PARLIAMENT. Div. IV.
No. 149.
a freehold
qualification,
is not, per se,
a sufficient
proof of no-
minality,
where there
are no cir-
Cli ID S tal] C&S
to establish
the existence
of any latent
or implied
trust.
He afterwards preferred a complaint to the Court of Session. Answers were
given in, in the name of Mr Drysdale, one of the freeholders; and Mr Lindsay
was required to confess or deny the following particulars : r
Imo, Whether the right which had been made over to him by his elder
brother, the fiar of the superiority, and proprietor of the lands, was not entirely
gratuitous 2 - -
2do, Whether his brother had not defrayed the expense incurred, not only in
raming the necessary writings, and in entering the claim in the freeholders’
court, but also in discussing the legality of it in the Court of Session ?
3tio, Whether the feu-duty exigible by the claimant was not 2s. 6d. yearly,
doubled at the entry of an heir or singular successor? &
4to, Whether the right had not been granted by his brother, and received by
him, for the sole purpose of giving him a title to vote, and without any regard
to the pecuniary emoluments arising from it? -
5to, Whether, though the claimant had granted no written obligation to re-
nounce his right when it was convenient for his brother, he did not consider him-
self as bound in honour to do so 2 And
6to, Whether, though the claimant had not positively promised to exercise
his right of voting at the will of his brother, he did not, however, consider him-
self as obliged to give his vote to the candidate patronised by his brother, in op-
position to his own wishes: - .
To these questions Mr Lindsay gave in answers, in which he admitted the
truth of the four first articles ; but, with regard to the 5th and 6th, he declared
That he considered himself to be under no obligation whatever, express or im.
plied, either to give up his liferent, or to exercise his right of voting at the will
or for the behoof of his brother, any more than if he had acquired the same
right by purchase from a stranger. These answers were subscribed by Mr Lind.
say, who professed his readiness to undergo a judicial examination on oath, or
to enter into any other enquiry, by witnesses or otherwise, which should be
thought necessary for a full and accurate discussion of his right. This enquiry,
however, Mr Drysdale declined, chusing to rest his argument on the circum-
stances which were acknowledged as sufficient for his purpose.
As the general arguments on both sides were the same with those used in the
questions occurring in 1786-7, on occasion of the election in the county of Ren-
frew #, it is unnecessary here to repeat them. . -
By some of the Judges it was thought, that by the proceedings which had
been recently held in the Court of Session, and in the House of Lords, they
were now at liberty to enter into a full disquisition as to the legality of what are
commonly called nominal and fictitious votes, unrestrained by any former de-
cisions. The majority of the Court, however, being of opinion, that the trifling
pecuniary value of the right was not by itself a sufficient proof of nominality,
# See zoth February 1787, Macdowall contra Buchanan, &c. No 142. rzipra,
SECT. 3. MEMBER of PARLIAMENT.
219
and that the other circumstances of the case did not establish the existence of No
any latent or implied trust in Mr Lindsay,
THE LORDs found, That the freeholders had done wrong in refusing to admit
Mr Lindsay to the roll. -
For the Complainer, Dean of Faculty, Macleod Bannatyne.
Clerk, Orme.
C. *
Alt. Blair, Geo. Faruia.
Fac. Col. No 22. P. 34.
-msmº ºm-
1789. March 6.
SIR WILLIAM For BEs, Bart. and Others, againſt SIR John MACPHERSON, Bart.
SIR John MACPHERSoN, as liferent superior of certain lands of the requisite
valuation, was enrolled as a freeholder in the county of Aberdeen.
Of this enrolment Sir William Forbes, and several other freeholders in the
same county, complained to the Court of Session, in terms of the election sta-
tutes, contending, That the rights on which Sir John Macpherson's claim was
founded, were nominal and fictitious. -
In order to shew that this was really the case, the complainers required Sir
John to confess or deny, -
Imo, Whether the conveyance of the lands contained in Sir John's titles was
not made out without his previous consent or knowledge 2 At least, whether
Sir John was not solicited by the Duke of Gordon, from whom he derived his
right, to accept of a freehold qualification ?
2do, Whether the expense of making out the title-deeds was not paid by his
Grace? - -
3tio, Whether those title-deeds were delivered to Sir John before his enrol-
ment? or whether they were in his possession at any time previous to this pe-
riod 2 * t -
4to, Whether, when he was informed of the conveyance, he thought himself
called upon to defray the expense of defending his title in the Court of Session,
or elsewhere? * -
5to, Whether he did not, when he accepted of this conveyance, and does not
still, consider himself as in honour bound to vote for the candidate who may be
patronised by the Duke of Gordon, and to renounce his freehold qualification a
his Grace's pleasure ? - - -
In the answers given in for Sir John, it was maintained, That the particulars
mentioned by the complainers could not be proved in the manner here pro-
posed. . - - • •
In deciding this matter, two votes were put; Irt, Whether it was competent
to examine Sir John on the proposed interrogatories 2 And, 2dly, Whether, on
account of the small value of the liferent estate in a pecuniary view, as appear-
E e 2 ºr' -
149.
No 1 50.
In order to
discover
whether a
qualification
was nominal
Sand fictitious, .
a number of
particular in-
terrogatories
were propo-
sed. The
Court of Ses-
sion found it
incompetent
to put them ;
but the judg-
Inellt WaS re-
versed in the
House of
Lords.
220 & MEMBER or PARLIAMENT. DIV. IV,
No 1.5o, ing from the face of the right itself, the freehold qualification was to be con-
sidered as nominal and fictitious Both these questions were determined in the
negative by a small majority. Accordingly - -
“THE LORDs found it incompetent to put the questions to the respondent
proposed by the complainers, and repelled the objection, of nominal and ficti-
tious, to the respondent's qualification ; and therefore dismissed the com-
plaint.” - - .
For the Complainers, Wight, et alii, * Alt. Tail, et ali.
Clerk, Gordon. *- | - -
C. Fol. Dic. v. 3. p. 419. Fac. Col. No 67. p. 121.
§ *J *...* This case was appealed:
THE House of LORDs, 9th April 1790, “ or DERED, That the interlocutors
complained of be reversed ; and it farther or DERED, That the respondent do.
confess or deny the averments in the appellants' pleadings.” ,
~-memº ºm-->
1792. Pune 15.
SIR WILLIAM FoxBEs, Bart, and Others, against WILLIAM TAIF,
John GoRDON, and Others. *
No 1 51. . . . .
Trust oath of
7th Geo. II.
isot the only
criterion of
nominality,
but particu-
lar interroga-
tories may
be put.
©
THE question between Sir William Forbes and others, freeholders in the
county of Aberdeen, and Sir John Macpherson*, having been carried by ap-
peal to the House of Lords, the judgment of the Court of Session was reversed,
and Sir John Macpherson, the respondent, ordered to confess or deny the aver-
ments in the appellants' pleadings respecting the nature of his freehold qualifi-
cation.
Before this determination was given, Sir John Macpherson had gone abroad.
But Mr Tait, Mr Gordon, and several other gentlemen, whose qualifications in
the same county stood in similar circumstances, were required to answer the
questions which had been proposed to Sir John. 4
These gentiemen gave in answers, the particulars of which it is unnecessary
to state. What seemed to be decisive, was their admitting that the freehold
qualifications had been framed with a view of increasing the political influence
of the Duke of Gordon ; that although the persons to whom they were granted,
had come under no express engagement to vote for the candidate patronised by
his Grace, they did not think themselves at liberty, as men of honour, to vote
in opposition to his wishes; and that they could not with propriety refuse to re-
* 6th March 1789, No 1 50, supra.
t
SECT. 3. . . MEMBER of PARLIAMENT. 22 I
nounce their freehold qualifications, when it was necessary for the Duke's ac-
commodation. - - - - -
THE LoRDs unanimously found, that the freehold qualifications in question
were nominal and fictitious, and appointed the names of the respondents to be
expunged from the roll of freeholders. - . .
Dean of Faculty, l'ight, C. Hay, et alii. Alt. Tait, Gordon, et alii. Clerk, Gordon.
C. Fol. Dic. v. 3. p. 420. Fac. Col. No I39. p. 275.
IN some other cases from the same county, the persons whose freehold quali-
fications were brought under challenge, gave in no answers to the questions put.
to them. THE Court, considering their silence as an acknowledgment of the
particulars they were required to confess or deny, appointed them to be struck
off the roll. - \
1790. December 8. • - -
MARK PRINGLE against FREEHOLDERS of RoxBURGHSHIRE.
By act 16th Geo. II. relative to the election of Members of Parliament, it is
declared, that if no complaint against the title of any person enrolled as a free-
holder be exhibited to the Court of Session within four kalendar months after
* enrolment, the freeholder enrolled shall stand and continue upon the roll, un-
‘til an alteration of his circumstances be allowed by the freeholders, at a sub-
* sequent Michaelmas meeting or meeting for election, as a sufficient cause for
‘ striking or leaving him out of the roll.” --
It still, however, continued competent to put to every freeholder the oath of
trust and possession, introduced by act 7th Geo. II. at any time before he pro-
ceeded to vote in the election of a Member of Parliament, or in adjusting the
rolls. -- - -
In the case of the Freeholders of Forfarshire, No 141. ſupra; the Court found,
that in order to ascertain whether or not the qualifications of freeholders were
nominal and fictitious, they should be likewise obliged to answer special inter-
rogatories on the subject. But, upon an appeal, the House of Lords reversed
that judgment, finding that the Court had no power to enter into such an in-
vestigation. - - - • º
This was afterwards held to be the rule, down to the date of the decision in-
the case of Sir John Macpherson *. That judgment, however, being brought
under the review of the House of Peers, it was then found, that"the trust-oath
was not the only means of investigating the merits of the objection of nominal.
and fictitious, but that it was competent to do so proºt de jare; and in particu.
lar, by calling on the party to answer pertinent interrogatories.
* 6th March 1;89, No 150, ſupra.
No ſ 5 Ie. *
No 152.
Other means.
than the
trust-oath,
for ascertain.
ing the objec-
tion of nomi-
mal and ficti-
tious, pre-
cluded by the
lapse of four
months after
enrolment. .
222 MEMBER of PARLIAMENT. Div. IV.
No 152.
No 153.
Proof prout
de jure is
competent of
all circum-
stances from
which the
nominality
and fictitious
nature of a
qualification
may be in-
ferred.
\
As the trust-oath and the other modes of investigation, seemed to be thus
connected together as co-ordinate means to the same end, an opinion began to
prevail, that as the former might be employed at any time, notwithstanding
the enactment relative to the four months, so also might the latter. *
Accordingly, at a meeting of the freeholders of Roxburghshire in July 1796,
for the election of a Member of Parliament, Mr Pringle upon his declining to
answer certain questions relative to his qualification, was struck off the roll; al-
though he had stood upon it for several years, without undergoing any change
of his circumstances. - -
In consequence of this, he presented a petition and complaint to the Court 5
when i -
It seemed to be considered, that the statute 16th Geo. II. being the sole au-
thority, under which the Court exercised jurisdiction in matters of that kind
they were of necessity to be governed by the limitation therein prescribed. ?
THE LORDs therefore found, that the freeholders had done wrong, and that
Mr Pringle ought to be restored to his place in their roll, -
Act. Abercromby, Tait. Alt. Dean of Faculty, W. Robertson.
S. Fol. Dic. v. 3. p. 420. Fac. Col. No 155. p. 311.
# º ~, º w • ‘ º • e -
% Several CaS6S from the shires of Stirling, Renfrew, Orkney, &c. were
determined in conformity with the preceding. And this case having been ap-
pealed the House of LORDs, 5th March 1792, “ or DERED and ADJUDGED that
the appeal be dismissed, and the interlocutors complained of affirmed.”
y
Nota. The judgment of the Court of Session in this case is contrary to
that afterwards pronounced 31st May 1791, Alexander Milne contra The Free-
holders of Aberdeenshire, No 154, infra. But the judgment of the Court
in the case of Milne was afterwards appealed from, and reversed in the House
of Lords; so that the question, as to trying the objection of nominality after
the four kalendar months, may be considered as at rest.
—º: Fº-
Deeemher 22. ILAY FERRIER againſt WILLIAM MoREHEAD.
I799.
MR FERRIER claimed enrolment, as a freeholder in the county of Stirling, at
º º - * . ; :
the meeting for election on 6th July 1790, as liferent-superior of certain lands
which were of the requisite valuation.
Mr Morehead objected to the claim, on the ground of the titles being nomi
minal and confidential ; and the freeholders having refused to enrol, Mr F errier
complained to the Court of Session. \ - -
In addition to the questionable nature of Mr Ferrier's right, as appearing
from the writings exhibited by him, Mr Morehead offered a proof prout de jure
SECT. 3. MEMBER OF PARLIAMENT. 223
of the fact of nominality and confidence, including the parole-evidence of the
different persons who had been concerned in the business.
Mr Ferrier, on the other hand, contended, that the admission of oral testi-
mony in such a case was contrary to the statute of 1696, whereby it is declared,
* That no action of declarator of trust shall be sustained as to any deed of trust
‘ made for hereafter, except upon a declaration or back-bond of trust, lawfully
* subscribed by the person alleged to be the trustee, and against whom, or his
‘ heirs or assignees, the declarator shall be intented, or unless the same shall be
‘ referred to the oath of party ſimpliciter.” In support of this objection, he
Pleaded; The general rule certainly is, that solemn writings respecting land-
ed property cannot be set aside by parole-testimony. So the law stood before
the enactment of 1696, which only corrected an error in the construction of
trust-rights, which had acquired some footing. In a question, therefore, with
the granter of the liferent right here founded on, no evidence but the oath or
writing of the liferenter could be listened to ; and it is not easy to figure in
what manner other parties, not immediately interested, can be allowed a more
extensive range. It is true, that by the enactment of 7th George II. it is in
the power of the freeholders to try, by the oath of any party claiming enrol-
ment, whether his qualification is an independent one, or held in trust for ano-
ther person; but this particular interposition of the legislature serves only to
strengthen the general rule. * wº
Antwered ; By the statute of 1696, it was provided, in affirmance of the
eommon law, that trust in a questión between the granter and grantee should
only be proved by the oath or writing of the party. But from this it does not
follow, that in every case the same method of proof must be adhered to. Thus,
in a question between the creditors of a bankrupt, and a person to whom he.
has conveyed landed property, if the conveyance be objected to as fraudulent,
or designed for the benefit of the bankrupt himself, parole-testimony is admit-
ted. In this case, however, the objection being not merely that the- right is
confidential, but that it is nominal, intended to convey to the grantee the sha-
dow only, and not the substance of a right, the regulation of the act 1696 is as
inapplicable as it would be where an objection of forgery is made.
After hearing counsel, the Court had no difficulty in allowing the proof here
offered.
Act. Solicitor-General, Ross, et alii. Alt. Dean of Faculty, Wight, et aſii. Clerk, Home.
C. ' Fol. Dic. v. 3. p. 420. Fac. Col. No 60. p. 32 I.
Nota. The same decision was given at the same time in a similar case, More:
head contra Cheap. See APPENDIX. sº
No 153.
224 MEMBER or PARLIAMENT. Drv. IV.
No 1 54.
Found
competent,
after the four
kalendar
months, to
try the ob-
jection of no-
minal and fic-
titious. Re-
versed upon
appeal.
1791. May 31. -.
ALEXANDER MILNE againſt FREEHoldFRS OF ABERDEENSHIRE.
MR MILNE had stood on the roll of the freeholders of Aberdeenshire for ma-
ny years, without having suffered any change of his circumstances, when an
objection made to his qualification, as being nominal and fictitious, was sus-
tained by the freeholders. .
In consequence of this, he preferred a complaint to the Court, founded on
the following clause of the statute 16th George II; “If any person shall be en-
rolled, whose title shall be thought liable to objection, it shall and may be
lawful for any freeholder standing upon the said roll to apply, by summary
‘eomplaint, to the Court of Session, &c.; so as such application be made
within four kalendar months after such enrolment, &c.; and if no such com-
• plaint shall be exhibited within the time aforesaid, the freeholder enrolled
shall continue upon the roll, until an alteration of his circumstances be
allowed by the freeholders as a sufficient cause for striking or leaving him out
of the roll.” The freeholders, on the other hand, to obviate this argument,
Pleaded ; The statute 1681 empowered the Court of Session, during the re-
cess of Parliament, to determine summarily concerning objections made to the
votes of freeholders standing on the roll; but without creating any limita-
tion as to the time of bringing forward those objections, - -
After the union of the two kingdoms, when the idea of nominal qualifica-
tions was first conceived, a trust-oath was introduced by act I2th of Queen
Anne, while in other respects the power of Óbjecting remained as before.
An oath more comprehensive than the former was authorised by 7th George
II; but still no limitation in point of time, nor any repeal of act 1681, took
place. - s • , -
The statute 16th George II. followed next; and it remains to be considered,
whether it produced an alteration in that respect, effecting a repeal of all the
antecedent statutes, and of the common law.
Objections relative to a person's connection with the lands on which he claims
to be enrolled as a freeholder, may not only be directed against his right and
title, which are jurir, but against other matters, which are facſi. Of the lat-
ter, the circumstance of possession affords a plain example, which, though an
essential ingredient in a freehold qualification, involves neither right nor title.
Nominality belongs evidently to the same class. Like
but facti, and has no reference to right or title. , -
These two sorts of objection are clearly distinguished by this important par
ticular, that while, on the one hand, whatever regards the title may be fully
discovered within a short period, by examination of the title-deeds ; the nature
of the possession, or the fictitious quality of the freehol
unavoidably be kept secret for a great length of time,
possession, it is not jurir,
d, on the other, may
Sect. 3. MEMBER or PARLIAMENT. - 225
It cannot then be supposed, that this statute was meant to include in the li-
mitation of four months, though fully sufficient for one enquiry, another quite
different, to which any given period, and especially so short an one, might na-
turally prove altogether inadequate.
The object of the trust-oath authorised by 7th George II, which has no rela-
tion to the validity of titles, is to ascertain the fact of possession, and of the
real or nominal nature of qualifications. Accordingly this mode of enquiry, to
which, it is an indisputed point, the limitation of four months has no refer-
ence, may be put in practice at any time A thing which of itself seems de-
No 1 54,
cisive of the present question; because it tends to show, that the statute now
under consideration is not applicable to objections of that nature. And as it is
now established by the judgment of the House of Lords, in the case of Mac-
pherson, No 1.5o. ſupra; that the objection of nominal and fictitious may be
verified prout de jure, as well as by the trust-oath, it seems to follow as a conse-
quence, that those other means may in like manner be employed at any time, in-
dependently of the statutory limitation. In other words, as the statute 16th
George II. has not in this respect repealed that of 7th George II. so it has as little
repealed the common law concerning objections to the votes of freeholders.
Nor are the terms of the statute in question inconsistent with this view of its
meaning. For though it limits to four months the time for exhibiting com-
plaints against enrolment, unless there be an alteration of circumstances; yet
it is plain, that this expression relates only to rights and titles, as expressed in
other parts of the statute, which are truly the title-deeds, and juris, and not
to the other class of objections, which are facti. -
Answered; As the objection of nominal and fictitious is so general as to com-
prehend almost every other, it is obvious, that if this were not excluded after
the four months, the statutory prescription, enacted for the most salutory pur-
poses, would in effect be totally abrogated. -- -
. Accordingly, in the terms of this statute, which are plain and express, there
is not room left for any such idea. The words, as above quoted, are, ‘ Any
“ person whose title shall be thought liable to objection,’ and also in another
part of the same passage, “A person who had not a right to be enrolled; than *
which surely no form of expression could more clearly denote the objection of
nominal and fictitious. - - J -
Thus, let it be supposed, that within the four months a complaint, under
the authority of the clause of the statute cited above, should be brought a-
gainst a person enrolled, because his title is nominal and fictitious, or brought
at the instance of one who has been struck off the roll, in consequence of a
pretended objection of nominal and fictitious; would it not be absurd to say,
that this clause did not apply to that objection, which in effect would be to de-
ny altogether the competency of such complaint? For at common law the
Court has no jurisdiction over the rights of freeholders in questions of election.
F f
226 MEMBER or PARLIAMENT. Div. IV.
No sº.
No 1 55.
The objec-
tion of nomi-
mal and ficti-
tious against
a liferent of
superiority,
found to
be removed
by an onerous
disposition to
the fee of it,
granted on
the morning
of the day of
election, at
which the '
claim of en-
rolment was
made.
But if it does apply to that objection, then the unavoidable consequence is,
that the subsequent part of the clause must in like manner apply to it; for
surely no words can be more express than these: ; So as such application be
• made within four kalendar months after such enrolment.’ -
The Court “found the objection of nominal and fictitious competent to be
proponed after the lapse of four kalendar months.” - -
To this judgment; on advising a reclaiming petition, and answers, the Court
adhered. - - -
Alt. IWight, et alii.
For Mr Milne, M. Rosſ, et alii. Clerk, Gordon.
S. . - Fol. Dic. v. 3. p. 420. Fac. Col. No 182. p. 368.
Similar judgments were afterwards given in various other cases.
*** This case having been appealed, the judgment of the Court of Session
*... • was reversed. h
A.
1797. February Io. JoHN MAGADAM againſt JAMES HoME.
John MACADAM, in 1789, obtained a disposition in liferent of the superiority
of lands affording a freehold qualification in Ayrshire, upon which he was soon
after infeft ; but he did not claim to be enrolled till 17th June 1796, at the
meeting for electing the Member for the county, when, besides the former
titles, he produced to the meeting a disposition of the fee of the superiority,
dated that day, and bearing to have been granted for an onerous cause. -
The meeting, after putting a number of questions to him, rejected his claim.
In a petition and complaint, in which James Home, who made the objection
in the court of freeholders, was cited as a defender, the points at issue came to
be, Imo, Whether the disposition to the liferent was nominal and fictitious 2
and, 2do, Supposing that question determined in the affirmative, Whether the
disposition to the fee gave the complainer a right to vote at the meeting 2
On the second point, the defender contended, that a disposition obtained in
such circumstances, and upon which the claimant was not infeft, did not re-
move the objection of nominal and fictitious; March 1791, Cases of Cheap
and Ferrier.
See APPENDIx. - -
Answered; A person claiming enrolment, must not only hold an estate giv-
ing a qualification, but he must produce the titles feudally vesting it in him to
the freeholders. By the act 1681, c. 2.f. it did not signify how recently the
right had been obtained ; but, by 12th Anne, c. 6, and 16th Geo. II. c. 11, it
was made necessary that the titles produced should be completed a year before
the claim of enrolment is made. These statutes, however, make no alteration
on the former law as to the nature of the claimant's right to the estate to which
SECT. 4. MEMBER OF PARLIAMENT. - 227
*-
the titles relate. Wherever, therefore, the objection appears ex facie of the No 155.
titles, any deed to remove it must be dated a year before it is produced; Dun- -
das against Craig, No 166, infra ; Grant against Hay, No 168. infra.
But where the qualification, as in this case, is ex facie unexceptionable, and
the objection goes to the claimant's being bona fide in right to the estate, it may
be removed at any period before the claim is made ; Colquhoun against Urqu-
hart, No I32. supra; Dunbar against Urquhart, 23d February 1774, infra ;
, 7th March 1781, Russel against Ferguson, infra; 20th February 1787,
Macdowall against Crawford, No 148. rupra. 3.
Upon advising the petition, with answers and replies, the propriety of the
decision in the cases of Cheap and Ferrier was doubted; and upon the grounds
stated for the complainer, the LoRDs sustained the vote *. -
Act. Tait, et alii. Alt. Geo. Fergusson, et alii. Clerk, sinclair.
ID, D. - - . . . . - Fac. Col. No 17. p. 40.
I
f
S E C T. IV.
Trust Oath.
1768. November 19. Fraser of Culduthil against Sir John GoRDON,
- - , , , , - No 1 56.
FRASER of Culduthil stood on the roll of Cromarty, in virtue of a decreet of The tº
division pronounced by the Commissioners of Supply in 1765; but before the tº: º:
election in 1768, this decree of division was set aside by the Court of Session, the meeting
whereby Mr Fraser's qualification was reduced below L. 4oo. Notwithstanding º:
of this, however, when the day of election came, no order had been obtained ed by the elec-
for striking him off the roll. It appeared, that if Mr Fraser was allowed his # gº -
vote in the choice of preses and ‘clerk, it would be decisive of the election;
whereupon Sir John Gordon, the Commissioner last elected, before the vote for
those officers, tendered to Mr Fraser the trust-oath, in the blank of which he
had filled up Mr F raser's lands, according to their old description, as standing
walued at upwards of L. 4oo. Mr Fraser refused to take the oath in these
terms, whereupon Sir John struck his name off the roll, and proceeded to call
the votes of all the rest. Mr Fraser having prosecuted Sir John Gordon for
L. 6co, on account of this conduct, the LoRDs found it was highly irregular to
put the trust-oath in any shape before the choice of preses and clerk, and
* The Court at the same time determined, on the same principle, a case, Colonel Fullarton
against John Anderson, in which the disposition to the fee was dated a few days, and the infeft.
ment recorded the day before the election.——See APPENDix, -
F f 2
t - - ' ... • -
• * . r •
228 MEMBER or PARLIAMENT. Div. IV.
No 1 56.
No. 157.
Found as
above.
No 1 58.
A person
having with-
drawn from
the court of
freeholders,
after it was
proposed to
put the trust-
oath to him,
the Lords
~
found Sir John Gordon liable in a penalty of L. 300 on that account. See Ar-
PENDIX.
Fol. Dic. v. 3. p. 422.
1773. February 24.
Sir LUDovick GRANT of Grant, Bart, and Others, against ARCHIEALD DUFF
s Sheriff-clerk of the County of Elgin.
A complaint was presented by Sir Ludovick Grant, and certain other free-
holders, who attended at the last Michaelmas meeting of freeholders for the
county of Elgin, which was held the 2d October 1772, charging, that Archi-
bald Duff, acting in the character of Sheriff-clerk of said county, had been
guilty of the offence enacted by the 16th of his late Majesty in the instances
therein set forth, and, of consequence, had incurred the statutory penalty.
The point on which the merits of the complaint chiefly turned was, whether
the trust oath could be legally tendered, (as in fact it was, and refused to be
taken, at this meeting), before the choice of the preses and clerk; as, if not,
Mr Duff’s conduct deserved no blame. In which view, he argued, that the
penult clause in the act 7th of the late King, founded on in the complaint,
could not be meant to include the case of the trust-Oath, which is regulated by
a preceding clause of the same statute ; and that the oaths spoke of in the pe-
nult clause are those appointed by law to be taken by electors in general, in-
cluding delegates of burghs ; which are, the oaths to government, but not the
trust-oath, which respects alone the qualification of freeholders. § *
The judgment which Court gave upon this complaint imported, that the
trust-oath was, in this case, legally tendered before the choice of preses and
clerk; and that so stood the law. But this judgment was reveised in the House
of Lords, March 31st 1773.
Act. Dean of Faculty, Sol. General. Alt. Ilay Campbell. Clerk, Pringle.
Fol. Dic. v. 3. p. 42 I. Fac. Col. No 62. P. I52.
—-mºsºm-
1780. December 9. GEORGE FERGUSON againſt MUNGO CAMPBELL.
At the meeting in 1780, for election of a representative to serve in Parlia-
ment for the county of Ayr, Mr Fergusson, a freeholder standing upon the
roll, moved, “ That Mr Campbell should take the oath of trust and possession ;
‘ and required the said Mr Campbell, whom he saw in court, to take the same s'
whereupon Mr Campbell withdrew, and Mr Fergusson further moved, That,
‘ in terms of the act of Parliament, (7th Geo. II, c. 16.) he should forthwith
‘ be struck off the roll.”
*-* * * *
SECT. 4. MEMBER OF PARLIAMENT. 229
The answer made was, “ That Mr Fergusson's request cannot be complied No 1 58.
* with, because Mr Campbell has not refused to take the trust-oath. All the found this
‘ law requires is, that Mr Campbell take that oath before he proceed to vote; sºlº.”
‘ and, when he comes to vote, he, no doubt, will take the oath mentioned. ...,
• But, till then, he is not bound to remain in court longer than he pleases; him to be ex-
* nor can he be struck off the roll till he actually refuse to swear.’ rººm.
The meeting having, “ by a majority of voices, repelled the objection, and
‘ refused to strike the said Mungo Campbell off the roll, Mr Fergusson pro-
tested, and afterwards brought the judgment of the freeholders under review,
by petition and complaint. : ,
At advising, the Court required Mr Campbell to say positively, whether or
not he was present when the oath was tendered 2 Mr Campbell, by his coun-
sel, admitted that he was present ; and the Court -
Found, “That the respondent having wilfully absented himself, after the
trust-Oath was desired to be put, is to be held as refusing to take the oath ;”
and therefore granted warrant for expunging him, and found him liable in ex-
~~~~
penses.
Act. Nairne. Alt. Wight, and j. Boſwell. Clerk, Tai.
L. * - Fol. Dic. v. 3. p. 421. Fac. Col. No 8. p. 16.
—ººm-
1784. july 7. BRODIE againſt Urquhart. *
A PERSON, after voting for preses and clerk, went out of the court-room to an No I59.
antichamber, where he waited till he heard his name called to give his vote for
the Member to be elected, and instantly appearing, gave his vote. There be-
ing no opportunity previously to put the trust-Oath, it was tendered to him im-
mediately after giving his vote, when he refused it, as being out of time. The
freeholders having sustained the vote, the LoRDs found they had done wrong,
and ordered the person's name to be expunged from the roll. See APPENDIx.
- -- Pol. Dic. v. 3. p. 421.
- —ºn- • *-* *- *
1790. january. FREEHOLDERS of CAITHNESs against Rose.
MR Rose having voted in the choice of preses and clerk, and been chosen . No 1.60s.
clerk himself, the trust-oath was put to nim, but refused by him, on the
ground, that being electe; clerk, he had resolved not to vote in any question.
that should be agitated at the meeting. The freeholders refusing to strike him.
off the roll, the Court of Session reversed their judgment. . . See APPENDIx.
* - -- Fol. Dic. v. 3. £º. 42Es.
23S, MEMBER OF PARLIAMENT. Div. IV.
No 161.
A freeholder’s
refusal to t
take the oath
of trust, im.
plied by his
retiring from
the meeting,
even before it
had been pro-
posed to ten-
der the oath
to him.
I795. january 2O.
Sir WILLIAM DUNBAR, Baronet, against John Davidson.
AT the Michaelmas meeting of the freeholders in the county of Caithness,
in the year 1789, John Davidson, being then on the roll of freeholders, gave
his vote in the election of Preses and Clerk. º
After this, a good deal of altercation ensued; but no business was done,
until one of the freeholders tendered the oath introduced by 7th Geo. II. to
several of the voters, and, among others, to Mr Davidson; but, by this time,
Mr Davidson had left the meeting. }
The freeholders having refused to expunge Mr Davidson's name from the
roll, Sir William Dunbar preferred a petition and complaint to the Court of
Session. In defence, Mr Davidson * - º
Pleaded, The right of voting as a freeholder being the creature of positive
statute, the proceedings, with regard to it, must be precisely regulated by the
different enactments which have been made in that behalf. Thus it has been
found, that the oath introduced by the 7th of the late King, could not be put
before the election of Preses and Clerk, although, in this way, the fate of the
return may be determined by those who have no right to vote. In the same
manner, the mere absence of a freeholder, when this oath is tendered’ cannot
deprive him of his right of voting. For this purpose, it is necessary that he
should refuse to take the oath ; a circumstance which cannot, with truth, be
here alleged ; 24th February I 773, Sir Ludovic Grant against Archibald Duff,
No 157. ſupra. an ^ - - -
Anſwered, There is a great difference between extending a regulation mere-
ly statutory, to a case which the words of it cannot, with any propriety, reach,
and controuling those devices which are calculated, without offending against
the letter of the law, to elude its true meaning. In the one case, the powers
of legislation are necessary for remedying an imperfection, which the act of
the Legislature itself has occasioned. In the other, those to whom the execu-
tion of the law has been entrusted, only give a proper effect to the enactment
as it has been made. Though, therefore, it has been decided, that the trust
oath could only be tendered when the freeholders were employed in voting
for a Member of Parliament, or in adjusting their roll, these being the only
two cases provided for by the statute; yet in a question, whether a freeholder
has refused to take the oath, when duly tendered, the Judges must be autho-
rised to pronounce a decision agreeable to the circumstances of the case, as
they really happened. If it should be determined by the freeholders, that the
oath, when duly tendered, should not be put, this would be deemed equiva-
lent to a refusal, if the freeholder to whom the oath was tendered did not de-
clare his readiness to swear. And the absence of a freeholder at a period so
critical, after he had voted in the election of Preses and Clerk, and when he
Sect. 4. MEMBER or PARLIAMENT. 231,
could not be ignorant of an intention to put the oath, must be viewed in the No 16t.
same light. Without this, it would be in the power of a person, once admit-
ted to the roll of freeholders, to give his vote in the election of Preses and
Clerk as long as he lived, howevel exceptionable his freehold qualification
might be ; 9th December 1780, Ferguson against Campbell, No 158. Jupra ;
7th July 1784, Brodie against Urquhart, No 159. ſupra. .
All the Judges seemed to think, that if any freeholder had declared his pur-
pose of putting the oath before Mr Davidson left the meeting, his absence af-
terwards would be construed into a refusal to swear, unless he could give a
sufficient reason for his quitting the meeting. And a majority being of opi-
nion, that Mr Davidson's conduct was not less ambiguous,
swers, - - - *
THE LoRDs found, “That the freeholders did wrong in not expunging the
name of Mr Davidson from the roll,” &c. * -
A reclaiming petition was afterwards preferred for Mr Davidson, and re-
fused. - -
Act. Wemyss, et alii. Alt. George Fergusson, et alii. Clerk, Home.
C. . - Fol. Die. v. 3. p. 421. Fac. Col. No 102. p. 192.
1792. February 12.
Robert B&uce AENEAs M'LEOD and David URQUHART against HUGH Rose.
MR Rose was enrolled among the freeholders in the county of Cromarty, as
wadsetter of the superiority of certain lands. He afterwards acquired the right
of reversion; and being thus fully vested in the superiority, he conveyed the
fee of it to another person, reserving to himself the liferent. After this, Mr
Rose restricted his liferent to certain parts of the estate, in virtue of which he
had been enrolled; still, however, retaining as much as, in point of valuation,
entitled him to stand on the roll of freeholders. <> -
*
After advising the petition and complaint, which was followed with an- .
No I62.
What deemed
a refusal to
take the oath
introduced
by the 7th
Geo. II. cape
16. -
While matters were in this situation, an objection to Mr Rose's continuing
on the roll was, in terms of the statute 16th Geo. II. lodged by: Messrs Mac-
Leod and Urquhart, two freeholders in the county. Mr. Rose, at the same
time, preferred a petition to the freeholders, stating the proceedings which
had been held, and desiring to be continued on the roll, in virtue of the right
of liferent still belonging to him. - • , . . . . . -
*
When the Michaelmas meeting in 1789 was constituted, Mr Rose was not
present; and, accordingly, his name was not mentioned in the minutes taken
down by the Clerk. But having afterwards come into the Court Room, with-
out, however, proceeding to qualify himself for voting, by taking the oaths to
**
232 MEMBER or PARLIAMENT, IXIV. IV.
No 162.
Government, Messrs M'Leod and Urquhart tendered to him the oath of trust
and possession, introduced by 7th Geo. II. On this Mr Rose quitted the room,
saying, that he was not a member of the meeting. As soon as he was gone,
it was proposed in his behalf, that the fieeholders should take under their con-
sideration what had been stated in his petition. - -
A majority of the freeholders determined, that Mr Rose's name should not
be expunged. They immediately after over-ruled the objection that had been
łodged against him ; and likewise found, that he should retain his place on the
roll. .* 2 -
In a complaint to the Court of Session, Messrs M'Leod and Urquhart
Pleaded, Any person claiming to vote for a Member of Parliament, or ha-
wing a right to vote in adjusting the roll of freeholders, may, in virtue of the
statute of his late Majesty, be required, by any freeholder then present, to
take the oath thereby introduced, in order to show that he is in the right and
possession of the lands, in virtue of which he was enrolled; and, in case of
his refusal, his name must be expunged from the roll of freeholders. Hence, -
after Mr Rose had declined to take the oath, when legally tendered to him,
the freeholders did wrong in allowing him to continue on the roll.
Whether Mr Rose, after being expunged, could have been again enrolled,
in virtue of a new claim, is of no importance. Not being judged of in the free-
holders' Court, this questión cannot be the subject of deliberation in the Court
of Session, Indeed, were Mr Rose's freehold qualification ever so unexcep- -
tionable, as it now stands, it is evident, that, after having undergone SO ma-
terial an alteration in his circumstances, he ought not to be allowed to retain
his former place on the roll ; 9th December 1780, George Fergusson against
Mungo Campbell, No 158. rupra; 7th July 1784, Brodie against Urqu-
hart, No 159 supra.
Answered, The oath introduced by the 7th of the late King, instead of the
one prescribed by the 12th Anne, can only be tendered to a freeholder when
he is proceeding to vote in the election of a Member, or in adjusting the roll of
freeholders; and, therefore, as Mr Rose had not even, by taking the oaths to
Government, put himself in a situation to act as a freeholder, there was no
room for trying the validity of his qualification in the way here pointed out.
In the case of a person admitted to the roll, as the proprietor of a great estate,
it has ever been understood, that his enrolment is effectual, notwithstanding
any partial alienation, if the lands retained by him are sufficient for giving a
right to vote. And the judgment of the freeholders must here be considered
in the same light as if, before entering into the question, whether, on account
of Mr Rose's declining to take the oath, he should be expunged from the roll,
they had proceeded to give a determination on the claim of restriction given in
for him, in which case, it is impossible to doubt that Mr Rose would have
acted differently. The authorities quoted Oſl the other side are quite inappli-
cable. In both cases, the freeholders required to take the oath had previously
-*
SECT. 4. — — . MEMBER of PARLIAMENT. 233
acted as constituent members of the meeting, having voted in the election of
Preses and Clerk. ^- s
Replied, The present case has no affinity to that of a freeholder who has con-
veyed away a part of the lands which belonged to him when he was enrolled;
Mr Rose's original titles, and those on which he must now claim, being essen-
tially different. But were the cases precisely the same, it would be of no con-
sequence; for, whatever might have been said, if, before determining with
regard to the propriety of putting the oath, the freeholders had restricted Mr
Rose's claim, and if, after this, Mr Rose had declared his willingness to swear,
the determination of the Court of Review must be regulated by the proceed-
ings as they actually took place. - . . . - .
The first judgment of the Court was, for “dismissing the complaint.”
But, after advising a reclaiming petition, which was followed with answers,
THE LORDs found, “That Mr Rose having refused to take the oath of trust
and possession, his name ought to have been expunged from the roll.”
Act. Blair, Abercromby. Alt. Wight, Roland. Clerk, Gordon.
C. - * Fac. Col. No. 113. p. 2 I.3.
1796. February 26. TURNBULL against Sir David Carnegie.
At an election meeting, a freeholder having moved, that if any person
should withdraw, after voting for Preses and Clerk, he should be held as ha-
ving done so in order to avoid the trust oath ; and, therefore, should be struck
off the roll; a person having accordingly done so, a majority of the freeholders
expunged him from the roll; and the Court of Session affirmed their decision.
—See. APPENDIX. .
Fol. Dic. v. 3. p. 422.
1823. February 25. Gordon against HERON.
John Gordon of Kenmore was enrolled a freeholder of the stewartry of Kirk-
cudbright in 1789, upon his whole lands, without distinction. Their general
valuation was L. 1630 Scots. He afterwards sold the lands of Hill, valued at
L. 60 Scots, for the purpose of redeeming the land-tax, without applying to have
the valuation disjoined, nor to have his qualification restricted to the remaining
part of his estate. . -
At the meeting on 23d July 1803, the oath of trust and possession was ten-
dered to Mr Gordon by Major-General Goldie, and he refused to take it, but
- G g -
No 162.
No 163.
No 164.
The name of
a freeholder,
who had sold
part of his
estate, re-
taining a suffi-
cient free-
hold, and who
declined to
take the oath
of trust and
possession,

234 - MEMBER of PARLIAMENT. DIV. IV.
No 164.
(but with that
explanation,)
being expun-
ged from the
rol! by the
Parliamenta-
ry Preses, or-
dered to be
replaced.
under this qualification, that he had sold a part of his estate, yet still retained
what, by the valuation roll, was valued at L. I 570, thus affording a freehold
qualification. . -
Upon this Patrick Heron of Heron, the Parliamentary Preses, expunged his
name from the roll. Against this Mr Gordon complained, calling all the free-
holders who were present ; and f -
Pleaded, Wherever the name of a freeholder on the roll is struck off at a
meeting of freeholders, it must be held, that this is the act of the freeholders;
wight, p. (46. The act 37th Geo. III. c. 138, bestows no power upon the
&
Parliamentary Preses of doing so at his pleasure; and the right of judging, in
the first instance, whether a freeholder be entitled to stand upon the roll, has
always been vested in the Court of Freeholders, 7th Geo., II. c. 16. Against
their judgment, then, the complaint is offered.
At the time the complainer offered his vote, he was possessed of lands valued
at L. 1570 Scots; and it is established law, that a freeholder, disponing part
of his original qualification, has a right to continue upon the roll, provided he
has retained such a qualification as would entitle him to be enrolled on a new
claim; Macleod against Sir John Gordon, 17th January 1760, No. 96, supra;
and Sir Hew Dalrymple against Sir George Suttie, 1768, (See APPENDIX) in
Wight, p. 284. A freeholder may take the trust oath as to the lands which he
still retains, and on which he claims to vote, although these may not be the
whole lands on which he was originally enrolled ; and if those to which the
trust oath applies afford a qualification, the freeholders cannot strike him off the
roll. s - ---, • * ---
This restriction, it is said, could not be attended to by the Parliamentary
Preses, before the Court of F reeholders was constituted. But 37th Geo. III. c.
138. allows the oath of trust and possession to be put to any freeholder, before
voting for Preses and Clerk, in the same way as it is now practised after the
Preses and Clerk are chosen. Supposing the Parliamentary Preses to have the
power of receiving or rejecting a vote when tendered, he can have none what-
ever to expunge a name from the roll. -
Answered, The summary mede of petitioning the Court in election cases, is
the creature of statute alone ; which, by 16th Geo. II. c. 1 r. is permitted, when
a person claiming to be enrolled shall, by judgment of the freeholders, be re-
fused to be admitted, or where any one who stood upon the roll shall, by the
like judgment, be struck off, or left out of the roll. But the wrong which is
here complained of was not done by judgment of the freeholders; it was be-
fore they had any legal existence as a body; and when they were constituted,
no complaint was made to them; so that they cannot be held to have refused
the complainer redress. The conduct of the Parliamentary Preses can only
come under the cognizance of the Court in the shape of a complaint for penal-
ties; but no power is given to review his proceedings. The complainer, how-
ever, satisfied that the Preses followed the path prescribed to him by law, makes
SECT. 4. \ MEMBER •of PARLIAMENT. 2.35
no claim whatever for penalties; and although a wrong may have been com-
mitted by him and the freeholder who tendered the oath to him, yet it is not
sufficient that there is a Wrong, for the Court to apply a remedy in this sum-
mary manner; Rankine against Ramsay, 23d January 1767, infra, Camp-
bell of Shawfield, 9th August 1774, infra ; in Wight, p. 137.
The statute 37th Geo. III. c. 138. allowed the oath of trust and possession to
be put to any freeholder before voting for Preses and Clerk; but the duty of
Parliamentary Preses is purely ministerial; he has no power of judging, and
it is incompetent to enter into any discussion before him. He has no power
to alter or amend the oath, but must put it in the precise words of the statute;
Fraser against Sir John Gordon, No. 156. supra; Banks against Jef-
frey, 6th June 1792, See APPENDIX ; and if the freeholder refuses, his name
must be expunged. The mode usually adopted is to fill up the oath for each
freeholder, with the name of all the lands on which he has stood on the roll 3
which seems to be the meaning of the words, “the lands and estate of 2-
º for which I claim a right to vote;” as otherwise,
a freeholder might insert the name of a different estate, when denuded entire-
ly of his original freehold; and the question is, Whether it be sufficient that
only a part of the original estate should be inserted. If this were the case, it
would leave with each person the power of cognoscing his own qualification ;
a right which exists, in the first instance, in the freeholders, who are entitled
to be satisfied of the claimant's right, of which they could not judge till after
p being constituted by the election of Preses and Clerk.
Observed on the Bench, That the respondent's construction of the act 37th
Geo. III. would make it inconsistent with the act 16th Geo. II. which says,
that a freeholder standing on the roll is not to be struck off, unless upon suffi-
cient objections, arising from alteration of title, &c. The act 7th Geo. II.
does not mean that all the lands upon which a freeholder was originally en-
rolled, must be inserted in the oath, but implies the very contrary. The oath
is not a test of qualification, except in one particular, viz. that the estate is
not held by him in trust, nor nominal and fictitious. As to the sufficiency of
his title in other respects, such as, whether his circumstances have been so al-
tered, by partial alienations, as to reduce him below a legal qualification, this
can only be judged of after the meeting is constituted, and in the form of an
objection lodged against his title. It is said, that he might have complained
after the election of Preses and Clerk, and got the meeting to replace him on
the roll. But this is not a form which any of the acts require. In fact, the
wrong was deae not by the Parliamentary Preses alone, but by the meeting
who refused to admit his vote, when tendered, for the choice of their Repre-
sentative, and who made up a new roll, leaving out his name, Besides, even
G g 2
No 164,
236 MEMBER or PARLIAMENT. DIV, IV.
No 164:
No 165.
It is sufficient
that the in-
feftment en-
titling to a
Vote, be re-
if he had left the meeting when his name was expunged, or neglected the pro-
per steps at that period, he is entitled, within four months, to come into this
Court, and to prove his title to be continued or replaced on the roll. This is
merely a question of enrolment ; the question, whether his vote ought to be
counted or not for the election of Preses and Clerk, or of their Representative,
not being hujus loci, but competent only before the Committee of the House
of Commons. The blank in the oath ought to be filled up by the party him-
self, not by the person who calls the roll, who has no power to exercise his
judgment about the matter, but must call the roll as it stands. If the party
acts improperly in filling up this blank, or swears falsely, he will be liable in.
the consequences of such conduct. A person standing on the roll is not obli-
ged to say that he has all the lands which he had twenty or thirty years ago,
but that he has all for which he claims, i. e. maintains his right of voting; .
or, in other words, of continuing on the roll; and to this there can be no op-.
portunity of contradiction till after the meeting is constituted.
The Court (25th February 1803) found, that John Gordon ought not to
have been expunged from the roll of freeholders; therefore, ordained him to
be replaced ; and found Patrick Heron and Major-General Goldie liable in
expenses. *
To which judgment the Court adhered, (Ioth March 1803,) by refusing a
reclaiming petition, without answers.
For Gordon, H. Erskine, J. Clerk, Arch. Campbell, jun., Agent, Tho. Grierron, W. S. .
Alt. Solicitor-General Blair, Hay, Williamson, Cathcart, Agent, 4nd. Macwhinnie.
Clerk, Menzies.
F. Fac, Col. No 90, p. 1973-
S E C T. V.
Freeholders must be infeft on-proper Titles, and their infeftments;
recorded, year and day before Enrolment. x-
I755. january 17. *
John BUCHANAN of Carbeth against FREEHOLDERs of STIRLINGSHIRE;
A complaiNT being made to the Court of Session by John Buchanan of Car-.
beth against the freeholders, for sustaining the following objection as sufficient
to bar him from the roll, viz. That his infeftment was not registered a year be-
fore the test of the writ for calling a new Parliament. It was anſwered, That,
.*
SECT. 5. MEMBER or PARLIAMENT, 237
the objection was justly sustained, being founded on the express words of the
statute 12th of Queen Anne,—Replied, The clause in the statute upon which
this objection is founded, was indirectly altered by the statute 16th of the pre-
sent King ; by which every purchaser standing infeft year and day, is entitled
to be put upon the roll; and if he be upon the roll, he undoubtedly is entitled
to Vote.
* THE LORDS repelled the objection, and found it was not necessary that the
complailzer's infeftment should be dated and registered a year before the test of
the writ for calling the Parliament; and it was sufficient to be dated and regis-
tered a year before the day upon which he craved to be enrolled.
Pol. Dic. v. 3. p. 422. Sel. Dec. No 79. p. 104.
*** This case is reported in the Faculty Collection :
At a meeting of the freeholders of Stirlingshire for choosing a representative
to Parliament, John Buchanan of Carbeth claimed to be enrolled in the roll of
freeholders entitled to vote ; partly as being the Crown's vassal in the lands of
Little Carbeth and others; and partly as having right to certain feu-duties pay-
able out of the lands of Bothkennar.
It was objected by William Cuningham of Ballendalloch, one of the freehold-
ers, That he could not be enrolled, Imo, Because the date of the writ for calling
the Parliament was 9th April 1754, and the instrument of Sasine in favour of
the claimant is only registrated 27th April 1753, which was not one year before
the date of the writ; and, by an act of the 12th of Queen Anne, it is statuted,
‘That no conveyance whereupon infeftment is not taken and registrated one
‘ year before the test of the writ for calling a new Parliament, shall, upon ob-
* jection made in that behalf, entitle the person so infeft to vote or be elected.”
2do, That a right to the feu-duties of Bothkennar, being neither a right to the
property or superiority of the lands, did not entitle to vote.
A majority of the freeholders sustained both the objections. Mr Buchanan.
complained to the Court of Session, and pleaded in answer to the first objection,
That by an act of the 16th of his present Majesty, it is enacted, ' That no
“ purchaser shall be enrolled till he be publicly infeft, and his sasine registrated .
* one year before his enrolment: From which it is evident, that it is only ne-
cessary that the instrument of sasine be registrated one year before the enrol-
ment be demanded, which it was in this case; and as posteriora derogant priori.
bus, the act of the 12th of Qeen Anne is in so far repealed.
Answered for William Cuningham, That the maxim posteriora derogant priori-
bus only takes place where the two things enacted by different statutes are incom-
patible: But here they are not; for the clause in the latter act respects the right of
voting and being elected, and the clause in the first act respects only the privi-
lege of being enrolled; and had not another objection stood in the way, the free-
holders would have enrolled the complainer at the said meeting, after the elec-
tion of the Member of Parliament was over ; and though he had been enrolled.
No 165.
corded a year
before appli-
cation is made
for being en-
rolled, altho’
not within
year and day
of the test of
the writ for
calling a new
Parliament.
238 MEMBER of PARLIAMENT. IDſy. IV.
No 165.
No 166.
Infeftment to
an eldest son,
reserving to
the father all
the power of
the property,
is not a good
qualification
to vote for a
Member of
Parl ament ;
nor will it bº
before the election, he could not have voted, because the act of the 12th of the
Queen barred him from that privilege : And it is the less to be supposed that
the foresaid clause of the last act repealed the said clause of the former act, be-
cause one clause of the said former act is expressly repealed by the act of the
16th of the King, which is a virtual confirmation of all the other clauses.
Replied for the complainer, That the clause of the act of the 16th of the
Ring implies a repeal of the clause of the 12th of the Queen, upon which the
objection is founded : For all that is required by the act of the 16th of the
King is, That the claimant be year and day infeft before he be enrolled; and
so soon as he is enrolled, he is entitled to vote, as appears from other parts of
the said statute. Now suppose that the writ for calling a Parliament bore date
the 20th September, and that a freeholder was infeft the 25th day of Septem-
ber of the year preceding, and duly entered his claim for being enrolled two
kalendar months before Michaelmas, and appeared at the Michaelmas meeting
and was enrolled, and the meeting for election was upon the Ioth of October
thereafter ; it is obvious that such freeholder's name behoved, by the act 16th
of the King, to be called, and his vote marked in every question during the
course of the election, the act of the 12th of the Queen notwithstanding; and
therefore that act is in so far repelled. A
The arguments upon the second objection were the same with those mention-
ed in No 52. supra. . . | . .
• THE LoRDs repelled the first objection, and found that it was not necessary
that the complainer's infeftment should have been dated and registrated one
year before the test of the writ for calling the Parliament; but that it was suffi-
cient his infeftment was dated and registrated one year before the day upon
which he craved to be enrolled. But they sustained the second objection, and
therefore dismissed the complaint.’
Aćt. And Macdowall, ja. Dundas & Bruce.
Alt. Lockhart, And Pringle, & 70, Grant.
Clerk, Forbes, - a.
B. Fac. Col. No 129. p. 192.
=mEºſ º-
1755. january 17. - - d -
RALph DuNDas, Younger of Manner, against CRAIG and FREEHOLDERS of
STIRLINGSHIRE.
RALPH DUNDAs, younger of Manner, with the view to an approaching elee-
tion of a Member to serve in Parliament, was infeft by his father in lands of a
sufficient valuation ; but reserving to the disponer his liferent, and a power to
alien or burden the lands at pleasure. This infeftment was expede more than
year and day before the election. But this nominal fee appearing doubtful,
the father, about a month before the election came on, discharged and renounc-
ed the whole reservations; and this deed was instantly put upon record.
Ster. s. MEMBER OF PARLIAMENT. 239
THE Court was unanimous that Mr Dundas's infeftment being a title of
property figura verborum only, could per ſe afford no qualification ; that he had
a good qualification from the date of the registration of the renunciation, but
that this qualification could not be sustained, not having subsisted a year before
the election.” - -
* Fol. Dic. v. 3. p. 423. Sel. Dec. No 78. p. 103.
*** This case is reported in the Faculty Collection :
At the meeting for electing a representative to Parliament for the county of
Stirling, held 17th May 1754, Ralph Dundas younger of Manner presented his
titles, and craved to be enrolled amongst the freeholders entitled to vote.
William Craig of Dalnair, one of the freeholders, objected, That he could not
be enrolled; because, although his charter was dated in December 1752, and
his sasine dated the 12th, and registered the 18th January 1753, yet the charter
reserved a faculty to John Dundas of Manner, the claimant's father, to alienate
or burden the lands disponed without the claimant's consent ; and that the re-
nunciation of that faculty was only dated and registrated in April 1754; where-
as, by the acts 12mo Annae, and 16to Geo. II. it ought to have been dated and
registered at least one year before the day of election : This objection was sus-
tained by a majority of the freeholders. ...” f --
Ralph Dundas complained to the Court of Session, and pleaded, That the
acts 12mo Annae, and 16to Geo. II. did not exclude him from being enrolled ;
for it is only required by the first of these acts, that infeftment be taken, and
the sasine registered one year before the test of writs for calling a Parliament ;
and, by the second, one year before the enrolment; and that his sasine had
been registered much more than one year before the test of the writs, or day
when the enrolment was claimed ; and, as these acts were correctory laws, de-
rogating from what was formerly the right of freeholders, upon their being in-
feft, they could not be extended beyond the letter of them, but behoved to
be strictly interpreted ; and therefore could not be construed as to require,
that, where a renunciation of reserved powers was necessary for completing tile
title to vote, such renunciation behoved to be dated and registered one year be--
*
fore the enrolment. .
It is true, that, by another clause of the act 12mo Annae, it is providéd, That
no redeemable rights, except proper wadsets, adjudications, or, apprisings, al-
lowed by the act 1681, shall entitle to vote; but, so soon as the right of re-
demption is extinguished, the objection founded on this clause of the statute is
removed, it not being required that an year should run between the extinction
of the power of redemption and the enrolment; and the efore, if one were in-
feft in lands redeemable betwixt and a certain term, or upon a charter of adju-
dication which has a legal term for redemption, so soon as these terms are past,
the persons must be entitled to vote, supposing him formerly year and day in-
feft; because there is nothing in the act to restrain him : And, in the same
way, so soon as the person, who has reserved powers over the fee, dies, or dis-
No 166.
validated by
2 reſºlull Cl2-
tion of these
powers,
granted with-
in a year of
the election.
240 MEMBER or PARLIAMENT.
**
Div . IV.
No 166.
No 167.
right or conveyance.
to plead in their right.
charges these powers, the fiar is entitled to be enrolled, and to vote, providing
that an year has run from the registration of his infeftment. -
And as the words of these statutes do not affect the complainer, so neither
does the intention of them, which was to prevent an undue multiplying of votes
on the approach of an election, of which there can be no hazard, by allowing
a father, or other person, to renounce their reserved powers in favour of the
fiar. Y- •
Answered for William Craig, That the objection is founded on the words of
the statute 12mo Annae; for it is thereby enacted, “ That no conveyance or
• right whatsoever, whereupon infeſtment is not taken, and sasine registrated
‘ one year before the test of writs for calling a new Parliament, shall, upon ob-
• jection made in that behalf, entitle the person so infeft,’ &c. Now, it is ad-
mitted, that the complainer's charter and infeftment by themselves gave him
no right to be enrolled; it was the renunciation alone that could give him such
a title ; but he, not being infeft year and day upon that title, when he claimed
to be enrolled, had no right to that privilege. The present case is quite differ-
ent from that of an infeftment upon an adjudication, the legal of which has
expired a short time before the adjudger claims to be enrolled; for the expiry
of the legal arises from the nature of the right itself, and not from any new
And, as the intention of the statutes was to prevent an undue multiplying of
nominal votes upon the approach of an election, the complainer was, by the
intention, as well as the words, justly excluded from the roll: Otherwise every
man might create as many votes as his valuation would admit, by granting dis-
positions with reserved powers, and executing and producing renunciations of
these powers on the very day of election. -
• THE LoRDs sustained the objection made to the qualification of the com-
plainer, and dismissed the complaint. - *~.
Act. And, Macdowall, j. Dundai et Bruce. Alt. Lockhart et j. Grant. ‘Clerk, Forbes.
B. . Fac. Col. No 127. p. 186.
1760. February 5. CAMPBELL and GRAHAM againſt MUIR.
,----
OBJECTED to a claimant, That his infeftment having proceeded on a disposi-
tion granted by an heir of entail, who was strictly prohibited from alienating
the lands.—Auswered, A conveyance from an heir of entail, however strictly
followed, is good against all except the substitutes; and it is jus tertii to any
–THE Court repelled the objection.
! - Fol. Dic. v. 3. p. 424.
\
- *.* This case is No 8, p. 7783.
'SECT. 5. MEMBER of PARLIAMENT. sa,
1761. jauliary 14. -
LAUCHLAN GRANT, Writer in Edinburgh, againſt ALEXANDER HAY, Younger
of Cocklaw.
At the Michaelmas meeting of the freeholders of the county of Aberdeen in
1760, Alexander Hay, eldest son of James Hay of Cocklaw, was enrolled upon
production of the following titles; Imo, Charter of resignation in favour of his
father in liferent, and of himself in fee, of the lands of Meikle Cocklaw, and
others, containing a reserved power to the father to alter ; 2do, Instrument of
sasine following upon the charter, dated 25th October, and registered 14th No-
vember 1757; 3tio, Discharge and renunciation, by the father, of the reservi
ed power, in so far as concerned certain parts of the lands contained in the
charter, dated 29th September 1759; And, 4to, An act of division of the
Commissioners of Supply ascertaining these lands to amount to L. 444 : 19 : 8: .
Scots of valued rent.
Lauchlan Grant, a freeholder of the county, complained of this enrolment to
the Court of Session, and objected, That the renunciation of the father's reserv-
ed power had not been recorded a year before the Michaelmas meeting.
Anſwered for Alexander Hay, It is sufficient that the fee was disburdened of
the reserved power, and rendered irredeemable a year before the enrolment;
for although the act of the 16th of the late King requires, that the sasine be
registered a year before enrolment, the recording a renunciation of a faculty is
prescribed by no statute whatever; and as the above mentioned act is correctory
of the former law, it ought not to be extended by interpretation. Nay, it does
not even seem requisite, that every thing necessary to render a title quite com-
plete should be done before the year commences. A purchaser from an appa-
rent heir is entitled to be enrolled, if his own infeftment be recorded a year be-
fore, although the apparent heir's titles be not made up for some time there-
after. The law requires only that his own infeftment be recorded in due time;
it does not require that another deed, though necessary, by way of reply to
take off an objection, be so early executed. ' -- * .
Replied, It is a real feudal right alone that can give a freehold qualification;
consequently, no personal right can be brought in to make good such qualifica-
stion. Now, in the present case, the infeftment gave only a redeemable pro-
perty. To render it irredeemable, a renunciation of the reserved power was
absolutely necessary. But whatever effect a latent and personal renunciation
may have against the granter, it must be recorded before it can be effectual
against third parties. The irredeemable right of property, therefore, is not
properly completed antil the renunciation be recorded ; and as the charter and
infeftment, by which the original right is constituted, must appear upon record
a year before enrolment; so it is equally necessary that the release or discharge
of any burden affecting that right be registered at the same time. Nor is the
...sº
No 168.
A renuncia-
tion of a re-
served facul-
ty, to alter
or innovate
the fee, grant-
ed in favour
of the fiar,
must be re-
corded a year
before he can
be enrolled
as a free-
holder.
242 " MEMBER or PARLIAMENT. DIV. IV.
No 168. instance of a freehold purchased from an apparent heir, in the least analogous
to the present case. If the purchaser has expede a charter under the Great
Seal in his own favour, and has got his infeftment upon record a year before his
enrolment, as he is thereby received the Crown's vassal, it is nothing to the
freeholders although his title was derived from one that never had a vestige of
a right to the lands. The claimant's own charter and infeftment are all that
they are concerned with ; where these concur, they must enrol, because the
title is ex facie complete; and the law has not given them any power to inves-
tigate the progress of a claimant's titles. .*
“THE LORDs ordained Alexander Hay to be struck off the roll of freehold-
ers.” - --
For the Complainers, ja. Douglaſ, Lºckhart. For the Respondent, Ferguſon, jun. Burnet.
A. W. Fol. Dic. v. 3. p. 423. Fac. Col. No 5. p. 8.
-—-arm-
1768. january 19. *.
. GEORGE SkeNE and CHARLEs HUNTER against David Ogilvie.
No 169. - - . ... *
- Is the course of the contest between the Earls of Strathmore and Panmuir,
for the county of Forfar, previous to the general election 1768, the Earl of
Strathmore complained of fourteen different enrolments, in virtue of dispositions
granted by the Earl of Panmuir. . . . -
It was pleaded against one of them, that of David Ogilvie, That the tene-
ments of which his qualification was composed, lay discontiguous, and that in-
feſtment had not been taken upon each tenement respectively, but upon one
part of the whole. . - *&
Answered, There is a clause of union in the charter, with a disposition, de-
claring, that the infeftment taken super aliqua parte fundi dict. terrarum Juff-
ciens erit pro integri; terris, baronii, ſupra ſcriptir, vel quavis earundem parte,
mon obstante quod discontigue jacent. - - . . . .
Replied, That the concern being dissolved by the different dispositions, the
effect of the disposition was at an end. . * , ,
THE CourT of SEssien sustained the objection, but the House of Lords, 4th
March 1668, reversed the judgment. -
Fol. Dic. v. 3. P. 424.
*** The same judgment had been given by the Court of Session in thirteens
other cases; which was likewise reversed in the House of Lords... wº
*.
SECT. 5. MEMBER or PARLIAMENT, 243
1768. February 18. g; ---
MLeod of Cadboll against Ross of Prestonhall and Others,
EveRY legal objection to the infeftment is fatal to the enrolment. The in-
strument of Sasine upon a disposition of three several subjects, bearing delivery
of infeftment of two of them only, omitting the third, the disponees were or-
dered to be struck off the roll, though the claim of “acta erant hac,' &c. spe-
cified the whole subjects; from whence it was presumeable, that infeftment had
actually been taken upon all the three, and that the defect arose merely from
“an omission in extending the instrument. See APPENDIX.
Fol. Dic. v. 3. p. 424.
1767. December 19. & 1768. November 15.
DAVID DUNDAS against FREEHOLDERS of LINLITHGow.
THE Court of SESSION had affirmed the judgment of the freeholders, sus-
taining this objection to a claim of enrolment, That in virtue of a claim of dis.
pensation similar to the above, in the case of Ogilvie, No 169, infeftment had
been taken at a place not within the lands conveyed. • *
After the judgment of the House of Lords in the case of Ogilvie, the claim.
..ant was enrolled upon a new application.
THE Court of SESSION found that the first decree was a ref judicata, and ap-
pointed him to be expunged; but the House of Lords, 5th March 1770, re-
versed both judgments.
Fol. Dic. v. 3. p. 424.
*...* Agreeably to these judgments of the House of Lords, the Court of Session
decided in the following cases ;—9th December 1790, Edmonston against
Morehead; and 1st March 1791, Cheap against Morehead. See APPENDIx.
—sºmº ºne-
(1781. january. TELFERs against FERRIER.
Two persons had got their sasines recorded at six o'clock afternoon of 15th
September 1779. The meeting for election was held on the 14th September
1780, but being prolonged till past mid-night, these gentlemen presented their
claims at three o'clock in the morning of the 15th. The meeting refused to en-
roll, as the full year had not expired. Urged in a complaint, That in the eye of
law, dies incaptus pro completo habetur. THE LORDs found the freeholders
did wrong, and ordered the claimants to be added to the roll. See APPENDIx.
Fol. Dic. v. 3. p. 423.
H h 2
No 170.
No 171.
No 172.
}
244 MEMBER or PARLIAMENT: DFV. IV.
No 173.
Freeholders
cannot reject
a claimant,
because his
author’s right
is fettered by
a strict entail,
although the
fetters appear
from the titles
produced.
1781. January 23. ANDREw Houston againſt JAMES FERRIER.
A a meeting of the freeholders in the county of Dumbarton, in 1780, Mr
Houston claimed to be enrolled upon certain lands, part of the barony of
Cumbernauld. For instructing his qualification, he produced, inter alia, the
charter of Lady Elphinstone, proprietrix of that barony; and a disposition
from her, in his favour, containing an assignation to the charter and precept
of Sasine inserted in it, so far as respected the particular lands upon which his
claim was founded. . . .
As Lady Elphinston's charter, however, contains strict prohibitory, irritant,
and resolutive clauses; to this claim it was A *
Objected by Mr Ferrier; The rights produced are of a precarious and re-
solvable nature, the charter bearing in gremio, that the claimant's author shall
not grant such rights, and, if she attempt it, that the grants shall be, ipso facto,
void and null.
In deciding the merits of this objection, the freeholders do not go begond
their proper sphere, by judging of a progress of titles, or of the rights of third
parties. Ex facie of the titles produced, they only convey a limited or qualifi-
ed right, subject to a power of defeasance, competent, by the tailzie engross-
ed in the charter, to every heir of entail. On this account, this case differs
from that of Canipbell of Shawfield against Mure of Caldwall, No 8. p.
7783, where the entail did not appear from the production made by the
claimant. } º
It is against the principles of the constitution, that rights entirely pendent
on the will of third parties, should give a right of representation in parlia:
Imerit, *
The statute 1681, in affirmance of these principles, renders all redeemable
or defeasible estates ineffectual to create a qualification. The exception of
wadsetters, and others, particularly mentioned in the act, confirms the rule as
to other lights; and the statutes of Queen Anne, of 7th and 16th Geo. II.
were enacted to reform the abuses which had crept into this part of our law
by the devices of persons desirous of having more than their due share of the
legislation. * & t
It has been found, in numberless instances, that dispositions, reserving
power of burdening, or revocation, do not establish a freehold claim. It can
make no distinction, whether these powers are in favour of the granter, or of
a third party; whether they are to operate upon payment of a sum of money,
or without any such consideration ; whether they are expressly stipulated, or
arise from the nature of the transaction itself. This may be clearly collected
from the terms of the oath imposed on electors by 7th Geo. II. The party
called upon must swear, ‘ that he has come under no obligation, dirictly or .
SECT. 5. MEMBER or PARLIAMENT. 245
4.
tº-
indirectly, for re-disponing or re-conveying the lands, in any manner what-
soever; or making the rents or profits effectual, to the use or benefit of the
person from whom he has acquired the estate, or from any other person what-
soever.’ - *
If a person were to burthen a disposition with a clause, declaring, That, as
he stood bound to convey the lands to a third party, it should be therefore
lawful to the disponer's eldest son to redeem, upon payment of an elusory
sum, or to set aside the right so granted; such conveyance surely could not
give a right vote. Yet the present case is, in substance, precisely similar ;
the only difference being, that the stipulation occurs in a tailzie, and is im-
plied, instead of being expressed.
Answered for Mr Houston; To found the present objection, it is necessary to
shew, Imo, That the qualities and limitations affecting the claimant's right are
intrinsic, and such as the freeholders can competently discuss ; and, 2do, That
they deprive him of a freehold qualification.
The author's charter, indeed, contains a very strict entail; but, the, precept.
of sasine, which is assigned to the claimant, is fettered by no litimation, and
he is not concerned with any other part of the charter.
Nor do the irritancies contained in the charter, afford a complete evidence
of the defeasibility of the claimant’s right. To render an entail effectual
against singular successors, it must be inserted not in one charter, but in all
The investitures. It must likewise be recorded in terms of the statute. The
decision, Campbell against Mure, is precisely in point. Indeed, it would be
highly absurd, that country gentlemen should be either obliged, or entitled,
to determine the validity of entails, and their effects as to the singular suc-
CeSSOrS.
Neither is a defeasible right, on that account, exceptionable, as the founda.
tion of a freehold claim. The statute 1631 only respects rights which are sub-
ject to redemption, either of their own nature, or by the stipulation of parties;
and the act of Queen Anne only extends the prohibition to ‘dispositions re-
deemable for payment of sums of money.' a
There are many rights subject to personal challenge, or defeasance, at the
instance of third parties, which are nevertheless, absolute in their nature, which
were never intended to be the subject of discussion before freeholders, and
which have been held to establish an indisputable right to a qualification. For
instance, a disposition to lands, granted on death-bed, is subject to reduction
ex capite lecti, and a gratuitous conveyanc”, by a person insolvent, is subject
to challenge at the suit of creditors ; But, was it ever heard that these faculties,
competent to heirs and creditors, were assumed by a court of freeholders, as
reasons for keeping from the roll the party favoured by these conveyances? In
the same manner, a deed of entail founds a fur crediti in the substitutes, in
consequence of which, they may set aside alienations in contravention of the
*
No 173.
246
MEMBER of PARLIAMENT.
Div. IV.
No 173.
No 174.
In transcrib-
ing a sasine
into the re-
cord, certain
lands were
omitted in
the clause
where the no-
tary attests
that delivery
was given.
This mistake
was signified
to the keeper,
and he was
.required to
insert the
omitted lands,
but did not
think himself
warranted to
do so. An
-objection on
this ground,
to the enrol-
ment of the
proprietor,
was sustained
by the Court.
self warranted to do.
Grey's sasine was ingrossed, is not kept by a deputy of the Lord Clerk Register,
entail; yet these alienations are good against every person, till reduced by the
heir of entail, and may be secured even against him by the positive prescrip-
tion.
THE LORDS repelled the objection.
For Mr Houston, Lord Advocate, Niel Ferguson. Alt. Ilay Campbell.
Fol. Dic. v. 3. p. 424. Fac. Col. No 29. p. 30.
mººm,
1790. February 23. CHARLES GREY againſt CHARLES HoPE.
THE estate in virtue of which Mr Grey claimed to be enrolled as a freeholder
in the county of Linlithgow, was partly composed of the lands of Drumbowie,
which were rated in the cess-books of the county at L. 166: 13:4.
Mr Grey had been duly infeft in these lands on 18th September 1788; and
on 22d September, he received from the depute-keeper of the register the in-
strument of Sasine, with the usual attestation on the back of it, bearing, that it
had been duly recorded. - &
But in transcribing the instrument of Sasine into the record, the lands of Drum-
bowie, though specified in the precept of sasine inserted in the introdictory part of
the instrument, were omitted in the clause where the notary attests that delivery
was given. This was not observed till 24th September 1789, and it was im-
mediately intimated to Mr Grey's agent, who insisted, that the keeper of the
record should insert the omitted lands in a marginal note, which should be au-
thenticated by his subscription. This, however, the keeper did not think him-
The record-book in the particular register where Mr
as is directed by the statute of 1617, but by a clerk appointed by the Crown.
At the time when this oversight was observed, it had not been signed by the
keeper.
At the Michaelmas meeting held on 1st October 1789, when Mr Grey's
claim was exhibited, an objection, arising from the circumstances already men-
tioned, was stated by Mr Hope, one of the freeholders. And this objection
having been sustained, Mr Grey complained to the Court of Session, and
Pleaded : For the purpose of intimating to the public the alienation or bur-
dening of lands, our law has required the registration of Sasin -s, and other writ-
ings of the same kind, and that within forty-eight hours after they are present-
led to the keeper of the record. Nor has the interest of the private party been
less the object of attention; it being provided, that within the same short space,
the sasine or other writing shall be returned to him by whom it was presented,
with an attestation, bearing the day, month, and year of the registration, and
in what part of the record the particular writing is to be found. Act, 1617,
gap. 16.
SECT. 5. MEMBER or PARLIAMENT. 247
In process of time, however, when, from the multiplicity of commercial
transactions, the actual booking of the whole writing within so short a period as
forty-eight hours became impracticable, the keeper of the register was required
to have a minute-book, in which the date of presenting the deed, a general de-
scription of the lands, with the names of those who were parties to the business,
should be immediately inserted, leaving the registration itself to be afterwards
performed as soon as it could be done, in the same order in which the different
writings appeared in the minute-book. In this way, this short marking in the
minute-book has come to be considered as the commencement of the registra-
tion; and until the whole has been completed in the fullest manner, it is to the
instrument of sasine itself, attested by the proper officer, especially where this
is confirmed by the marking in the minute-book, that attention is to be paid.
Act, 1672, cap. I6. ; 1693, cap. I4. I -r
Thus, if no part of the sasine in this case had appeared in the record, the
claim of enrolment founded on it would have been nevertheless unexceptionable.
And surely the omission as to a part, . which it was in the power of the keeper of
the register to remedy, cannot be more fatal to it. Indeed, in this case it may
be justly doubted, how far any part of the sasine has been recorded as the sta-
tute requires. On these principles it was decided, where a sasine had been at-
tested and marked in the minute-book, that the circumstance of its not having
been transcribed into the record till within a year of the enrolment, did not af-
fect the freeholder's right. To give a different determination, would be to in-
vest the keeper of the record with a power of rendeling ineffectual at pleasure
the most important rights which can be exercised by the landholders of this
country. Wight on Elections, p. 206. 9th February 1768, Sir Alexander
MKenzie and others, contra M*Leod of Cadboll. See APPENDIX.
Answered ; The statute of 16th Geo. II. cap. I I. requires the registration of
the freeholder's infeftment twelve months before he is enrolled. By this must
be meant, a registration with regard to all the lands on which his claim is found-
ed. The purpose of the law, which was to give an opportunity of examining
into the real situation of those feudal rights, which are to be productive of so
important a privilege, most evidently requires, that it shall appear during the
whole of the statutory period, what the lands are in virtue of which an enrol-
ment is to be demanded; and thus the claim which was here rejected, seems no
less irreconcileable to the words than to the meaning of the law.
The determination, finding that a delay in transcribing a sasine into the re-
cord, was not fatal to a claim for enrolment, the Sasine having been duly enter-
ed in the minute-book, and thereafter exactly engrossed in the record, though
not within forty-eight hours from the date of the presentation, and perhaps not
within sixty days from the date of the infeftment itself, is inapplicable to the
present case. There, the question was not with regard to the registration, which
was, to all appearance, regular and complete, but with regard to the date of it;
and as, in many cases, the transcribing of the writing into the register cannot be:
No 174,
248 MEMBER OF PARLIAMENT. T}Iv. IV.
No 174.
performed within the time above-mentioned, while, from the sasine itself being
retained by the keeper of the record till this actually takes place, no injury can
arise to third parties, the decision may be considered as a proper one.
But where, as in the present instance, the record, as it is made out, does not
mention a part of the lands contained in the infeftment, it is evident, that with-
out overthrowing at once the whole system of the public registers, no regard can
be paid to it, so far as relates to the omitted lands. If there can be said to be
any record at all, it is an imperfect and vitiated one, and therefore useless. If
again the writing is to be considered as unrecorded, the requisites of the statute
of his late Majesty, have not been observed. The proposed insertion of the
omitted lands into the margin of the record, after the lapse of much more than
sixty days after the date of infeftment, could give no validity to it which it had
not before ; nor could this be done by the keeper of the record, who is entrust-
ed with the filling up of the register, but who has no power to correct or al-
ter it. g
The consequences of this doctrine are evidently most just. It is the fault of
him who presents a sasine to the keeper of the record, that it is not published
in the most regular manner; because it is in his power, by examining the regi-
ster as soon as it is filled up, to see whether the necessary accuracy has been ob.
served. But were any imperfection in the records to be remedied in the way
here proposed, the loss would fall on those who are altogether free from blame,
as having been authorised by law to rely on the fidelity of the registers.
THE Court were unanimously of opinion, that the judgment of the freehold-
ers was well founded. Where it appears from the record that a sasine has been
engrossed of the same date with the attestation on the back, and the marking
in the minute-book, this, it was observed, could not be redargued by parole
testimony, without giving more credit to the keepers of the register than to the
record itself. The case here was very different; the claimant wishing to set up
the presumptive evidence, arising from the indorsation of the Sasine, and the
marking in the minute-book, against the record.
After advising the petition and complaint, which was followed with answers,
replies, and duplies.
“ THE LORDs dismissed the complaint.”
A reclaiming petition was preferred, to which answers were given in ; but the
LoRDS adhered to their former judgment. 3.
‘Act. Wight, IV. Robertson, et alii. Alt. Blair, Honyman, Hope, et alii. Clerk, Menzies.
‘C’. Fol. Dic. v. 3. p. 423. Fac, Col. No II9, p. 229.
f
A separate-complaint was, at the same time, preferred against the keeper of
the register, insisting that he should be ordained to amend the record, and for
damages and a fine. THE LORDs found damages due, and imposed a fine of L-5,
but they would not in this case authorise any alteration to be made in the re-
&cord.
SECT. 5.
MEMBER or PARLIAMENT, - 249
1790. March Io. -
SIR WILLIAM DUNBAR, Bart. and Others, against GEORGE SUTHERLAND.
GEORGE SUTHERLAND claimed enrolment as a freeholder in the county of
Caithness, at the Michaelmas meeting held on 3oth September 1789.
In support of his claim, Mr Sutherland produced, among other writings, an
instrument of sasine, with an attestation on the back of it by the keeper of the
record in the county, bearing, that it had been presented on 29th September
1788, and recorded on the same day. Mr Sutherland was accordingly enrolled.
It was afterwards discovered, that the instrument of sasine had not been in-
grossed in the register for several days after 29th September 1789, and that it
could not be marked in the minute book directed to be kept by 1693, cap. 14.
no such book being kept in the county of Caithness. In a complaint, therefore,
founded on the circumstances already mentioned, Sir William Dunbar and
others, freeholders in the county, c -
Pleaded ; By act 16th Geo. II. cap. II. it is provided, That “no purchaser
“ or singular successor shall be enrolled till he be publicly infeft, and his sasine
• registered, or charter of confirmation expede, where a confirmation is neces-
! sary, one year before enrolment.' Thus, the recording in this instance not
having been performed for a full year before enrolment, the judgment of the
freeholders was manifestly erroneous, and ought to be set aside.
The statute of 1617, cap. 16. evidently required, that the sasine or other
writing should be actually transcribed into the record, the attestation on the
back being only intended to establish the claim of reparation against the keeper
of the record, if the business of registration was not conducted with sufficient
accuracy. This was the opinion of Lord Stair, who justly observes, that no
purchaser could be secure if a different rule were to be adopted. And even al-
though this might have admitted of a doubt, especially after the enactment of
1686, cap. 19. the subsequent statute in 1696, c. 18. has declared, in the most
express terms, that “no Sasine or other writ or diligence appointed to be regi-
strated, shall be of any force or effect against any but the granters, unless it
‘ be duly booked and inserted in the registers; Stair, b. 2. tit. 3. § 2 I.
It is true, that where a sasine has been regularly presented to the keeper of
the records, and by him duly entered in the minute-book, as required by 1693,
cap. 14. a claim of enrolment founded on it has been sustained, although some
delay has occurred in transcribing it into the record. As this minute-book,
which is open to public inspection, contains a general description of the lands,
and as the instrument of Sasine or other document is retained in the hands of
the keeper of the record till it is engrossed ad longum, such a determination can
be attended with little loss. Great care, however, must be taken, that by a
gradual infringement of the general rule, the public security provided for by
the records may not suffer a fatal injury. If a sasine were to be sustained,
Ii ---
No 175.
Found that
* the date of
presenting Sa-
sines to the
keeper of the
register is to
be reckoned
the date of re-
gistration,
though they
should not be
engrossed in
the register
for some time
after.
25o - MEMBER or PARLIAMENT. DIV. IV.
No 175.
y
though not marked in the minute-book, nor to be found in the record, no singu-
lar successor could be safe; and persons might be admitted to the privilege of
voting, who have no real interest in the welfare of the community, although,
in order to prevent such undue enrolments, a previous publication of the infeft-
ment for so long a period has been made necessary.
Answered; General laws cannot be framed in such a manner, as to be pre-
cisely applicable to the circumstances of every case. It is therefore the province
of courts of justice so to construe these enactments, as to adapt them to common
use. Where such a construction has been given, by the usage of the country,
and especially where it cannot be attended with any loss, this rule appears to
be highly expedient and just. In giving effect to the statutes respecting regi-
strations, it has been often followed. By the enactment of 16rſ, it is required,
that the sasine or other writing should be engrossed within forty-eight hours af.
ter it is presented to the keeper of the register; yet, as in the case of many sa-
sines being given in at the same time, this cannot be done, it has been held suf-
ficient if the presentation of it has been duly notified in the minute book. So
likewise in the case where it has been certified in the minute book, that the
writing was recorded on a certain day, it is not allowed to prove that the book-
ing took place at Some after period ; this being agreeable to the common prac-
tice, and attended with no inconveniency, as the keeper of the register retains
in his possession the Sasine or other writing, for the information of those who
may wish, in the meantime, to examine the record. In the same manner, in a
case where no minute book has been kept, it must be enough to shew, that the
sasine was duly presented for publication, as is done by the attestation on the
back of the writing itself, and that the deed continued in the hands of the pub-
lic officer, until it was regularly engrossed ; Wight on Elections, 4to edit.
p. 22 I. -
THE CocRT were much divided in opinion, and the question was at length
determined by a very narrow majority. *
After advising the petition and complaint, with answers and replies,
“ THE LORD's dismissed the complaint.
Act. Honyman, Tait, et alii. Alt, Dean of Faculty, et alil. Clerk, A.itchel, on.
Fol. Dic. v. 3. p. 423. Fac. Col. No 126. p. 244.
*** A similar decision was pronounced, 9th February I768, Sir Alexander
M'Kenzie and others against M*Leod of Cadboll and others ; and in a
case, Earl Fife against Gordon, &c. 8th July 1774, the registration of
a sasine was sustained, though the entry in the 'min
titebook was not
signed. See APPENDIX. e
SECT. 6.
MEMBER of PARLIAMENT, 25 I
1796. February 26. LINDSAY CARNEGIE against GARDEN.
ir is not necessary to specify in the claim the register in which the claimant's
sasine is recorded.—See APPENDIX. * *
Fol. Dic. v. 3, p. 423.
S E C T. VI.
Apparent Heirs.
1753. july 3. Colonel ABERCROMBY against JAMES GoRDON of Ardmealie.
By a charter under the Great Seal, dated 1733, proceeding upon the resigna-
tion of Peter Gordon, the barony of Zeuchrie was granted to him in liferent, and
to Archibald, his eldest son, &c. in fee ; whom failing, to his second son, the
defender, &c. reserving to the father full power and liberty to sell, annailzie,
and dispone the said barony, either gratuitously, or for onerous causes; or to
charge the same with debt; or to grant tacks thereof, for what term, and for
what rent he should think proper; and to alter the course of succession, with-
out the consent of the said Archibald, or James his son. Upon this charter, in-
feftment followed in the same year 1733.
Archibald having deceased without issue, Peter Gordon the father executed
a deed in July 1752, assigning his liferent-right, and discharging and renoun-
cing his whole reserved powers and faculties in favour of James the de-
fender.
At Michaelmas 1752, the defender upon these titles was enrolled in the roll
of electors for the county of Banff, as apparent heir to his brother Archibald.
The pursuer offered a complaint against this enrolment to the Court of Session,
and objected, Imo, That Archibald, the defender's predecessor, had not, when
alive, any title to be enrolled ; for that by the act 1681, Cha. II. Parl. 3.
cap. 21. among the qualifications of voters (other than those claiming as appa-
rent heirs), it is required, that they be infeft in property or superiority, and in
possession, &c. and by act of the 12th Ann. cap. 6. it is enacted, that no infeft-
ment, taken upon any redeemable right whatsoever, except proper wadsets, adju-
dications, or apprisings, allowed by act 1681, shall entitle the person so infeft to
vote or be elected. Now, the right of Archibald being a redeemable and mere-
ly nominal right, he, while alive, “, barred by these acts from having any
1 2.
No 176.
No 177.
A fiar's right
of his lands
having been
revocable,
and mere-
ly nomi-
na!, a dis-
charge of the
power of re-
vocation,
granted after
his death to
his apparent
heir, found
not to give
such heir
a title to
be enrolled
on his appa-
rency.
252 MEMBER of PARLIAMENT. IXIV. IV.
No 177.
title to vote. If so, after his death, the defender can have no title, merely as
his apparent heir. In the next place, the predecessor's right being thus insuffi.
cient in itself, it cannot be aided by the renunciation of the reserved powers in
favourgf the heir. Dissimilar or insufficient titles cannot be joined together.
4nrivered for the defender upon the first point, viz. Archibald's right to be
enrolled ; That, in the firſt place, Archibald's right did not fall under the in-
tention of the act 12th Ann, which was to prevent the devices of multiplying
Votes; for, in this case, one vote only was intended, viz. to the father in virtue
of his liferent, if he chose to claim it: to the son, if the father did not claim.
In the next place, the father's reserved faculties could not be any oujºv. iv., -u
Archibald's right; for Archibald was the Crown's vassal; he had a property in
terms of the act 1681; which property, though defeasible, being such as fa-
thers usually give to their sons, yet could not be construed to be one of the re-
deemable rights which would fall under 12th Ann. The redeemable rights there
mentioned, would seem to be only such where there is a proper right of rever-
sion established in a third party, which is a real right transmissible to heirs and
successors. But in this case, the faculties reserved to the father are merely per-
Sonal, and, if not exercised, must die with him. The act 12th Ann. being a
correctory law, should not be extended by interpretation. The right of Archi-
bald was therefore good ; if so, that of James, as his apparent heir, must be
good too.
But, 2do, Supposing the right of Archibald to have been a redeemable right
in terms of 12th Ann, yet the renunciation of the faculties in favour of James,
removed that bar, and gives James an absolute property; for had the renuncia-
tion been made in favour of Archibald while he lived, there would have been
no objection; what difference can there be, if it was made after his death in fa-
vour of James : Or, in another light, if the father's death would have com-
pleted James's right, why should not a renunciation in his favour do as much 3
Many similar instances may be given. Suppose a predecessor's right were an
infeftment, upon an adjudication, whereof the legal did not expire till after his
death ; or, suppose a discharge of the power of redemption, granted within the
legal to an adjudger's apparent heir ; or suppose the right of the predecessor to
be a base infeftment, and that a charter of confirmation is granted after his
death in favour of the apparent heir ; in all these cases, the defect in the prede-
cessor's right would be as effectually removed after his death as it could have
been in his lifetime, so as to entitle his apparent heir to have a vote ; for this is
not a conjunction of dissimilar titles, it is only a removal of a bar or defect.
Besides, in many cases, the Lords are in use to conjoin dissimilar titles. Ha-
milton of Ardrie was allowed to join to the valuation of his own lands that of
certain lands in which his wife was infeft Iyth January 1745. No I. I. Jupra.
Replied for the pursuer upon the first point, That the father’s reserved facul-
tes were plainly such as made Archibald’s right merely nominal ; so that he
cond not be said to be infeft in p: operty in terms of the act 1681, nor irre-
SECT. 6. MEMBER or PARLIAMENT. 253
deemably in terms of 12th Ann. Could votes be made in this manner, every man
might make as many as his valuation would admit of, without diminishing his
estate ; for he could revoke all his conveyances upon the day after the election.
From hence it is evident, that Archibald's right alone could not avail his appa-
rent heir.
Upon the ſecond point; The right, as apparent heir, could not be aided by
the renunciation of the faculties; for this reason, that the titles of an apparent
heir as such, can only be those of his predecessor. Now, this renunciation was
flººright in the predecessor ; it was a new right granted to James himself.
ged James to enter heir to fift ;"jääshºy iºdºt, agd.bis greditors had char-
father by a revocation of Archibald's right, could have disappointed Archibald's
creditors. These creditors could not have pleaded, that the renunciation in fa-
vour of James augmented the right of Archibald.
With regard to the arguments, that the father's renunciation in favour of
James should have the same effect as if he had died, it is obvious the cases are
no way parallel ; for, had the father died, James would have taken by succes-
sion; whereas, in the present case, he takes by purchase. The two acts of
Parliament above-mentioned, make sundry rules touching the taking by succes-
sion and taking by purchase. If an heir takes by purchase, that is, if he founds
upon a new right granted to himself, the law will consider him as a purchaser ;
and he must not only be infeft in pursuance of the act 1681, but must be year
and day infeft, in pursuance of 12th Ann. If again he takes by succession, then,
in case his predecessor's titles were sufficient to give such predecessor a vote, the
heir, in terms of the act 1681, may rest upon his apparency alone; but if such
predecessor's titles were not sufficient, in that case, the heir's apparency would
not avail him. He must be infeft ; though, indeed, in this last case, it does
not appear there would be any necessity that this infeftment should have stood
year and day; for, as he takes by succession, he does not fall under the proviso
of 12. Ann. which seems only to regard those who take by purchase. From
these rules it will appear, that in none of the cases put for the defender could an
heir have a right to vote without being infeft. *
As to the joining of dissimilar titles, the instance mentioned does not apply;
for, although the valuations of different lands, held by different titles, may be
joined to make up the quantum of extent, yet two insufficient titles cannot be
* = ** -
joined to make one good title. º s
Upon the whole, the objection stands good, that Archibald’s right was mere-
ly nominal, and the renunciation was a new right granted to James.
“ THE LORDs sustained the objection, found the complaint well founded, and
ordained James Gordon to be expunged from the roll.” --
Act. R. Craigie & A. Lockhart. Alt. Advocatur, Jameſ Ferguson. Clerk, Kirkpatrick.
S. *- Fol. Dic. v. 3. p. 425. Fac, Col. No 78, p. I 16.
*-
No 177,
254 MEMBER of PARLIAMENT. IDIvº. IV,
No 177.
No 178.
TNo 179.
An apparent
beir of a na-
ked superio-
*...* This case is reported by Lord Kames:
Gospos of Ardmealie, anno 1733, disponed the lands of Zeuchrie to his eldest
son Archibald, who, upon a charter under the Great Seal, was infeft. But it
was understood, that though the land was of a sufficient valuation, it could not
entitle Archibald to elect or be elected a Member of Parliament, because of a
reservation to the father, not only of his liferent, but of a power to alien and
contract debt without limitation. Archibald died without issue, and the suº-
cession opened to his brother James, who, wanting a Sálifiºſº"His life.
fêiffinjūtſūf all'his powers and faculties. Upon the production of these titles to
the Michaelmas Head Court 1752, James claimed to be enrolled as heir appa.
rent to his brother; and he being accordingly enrolled, a complaint was brought
before the Court of Session, by Abercrombie of Glassoch, insisting upon the fol-
lowing objection, That Archibald Gordon himself, the predecessor, against whom
the said reservations subsisted during his life, had himself no right to vote; and
that no man who claims as apparent heir can have a better title than his an-
CeStor.
“ THE LORDs sustained the objection, and ordained James Gordon to be ex-
punged from the roll.”
Sel. Dec. No 46. p. 52.
1755. January 17. GALBRAITH againſt CUNINGHAM.
A FREEHold'ER is entitled to be enrolled upon the right of apparency though
he has already made up his titles; for the privilege of being enrolled imme-
diately, is given to heirs, not because they are in the state of apparency, but .
because it seems reasonable that they should have the same right to vote a nei,
predecessor, though they should not have made up a proper feudal title; and
the act 1681, when giving that privilege to heirs, could not with propriety men.
tion any other but apparent heirs; because, as the law then stood, even a singu.
lar successor was entitled to be enrolled as soon as he was infeft.
Fol. Dic. v. 3. p. 425. Fac. Col.
tº *** This case is No 51. p. 8644.
as sº a ...? § 2 * * * * .
1755. March 5. John MURRAY of Philiphaugh againſt Dr John Nielson
SAMUEL NIELSON, at his death, left a disposition of his lands of Etrick-house
& * º e e tº 9
to certain trustees for uses. The disposition contained procuratory of resignation
3.
*


SECT. 6. MEMBER OF PARLIAMENT. 2 * 255
and precept of Sasine, in the usual form. Dr Nielson, the defender, his imme-
diate elder brother, was served his heir of conquest in general. The trustees ob-
tained themselves infeft base to hold of the heir ; and, for a sum paid, they
granted in his favour a discharge and renunciation during his life, of the procu-
ratory of resignation, binding themselves, during his life, neither to execute that
procuratory, nor to obtain a charter of confirmation of their base infeftment, nor
of adjudication in implement of the disposition. The Doctor produced to the
freeholders of the county of Selkirk his brother Samuel's titles, and his own ge-
neral retour, together with the discharge and obligation above-mentioned ; and
was thereupon enrolled as apparent heir of conquest to his brother.
John Murray, the pursuer, offered a complaint against this enrolment, and
objected to it, Imo, That an apparent heir to a naked superiority cannot be said
to have such possession as seems to be required by the act 1681, Cha. II. p. 3.
cap. 21. namely, a possession of the rents and profits.
2do, That Samuel, the predecessor, was denuded by the disposition to the
trustees; and that the effect of that disposition could not be said to be taken off
by the discharge and renunciation which the trustees had granted ; for that an
apparent heir can only be enrolled in respect of his predecessor's titles; whereas
this is a new title in favour of the heir, which cannot aid the predecessor's title;
and this seems to be admitted by the Doctor's paying a sum in consideration
of it. - A.'
3tio, The renunciation of the power of using the procuratory during the Doc-
for’s life, is only a personal obligation up in the trustees; it would not bind pur.
chasers; and though it might make the trustees iiable in damages, yet it does
not prevent even then, from executing the procuratory, or from obtaining a
charter of confirmation. In short, the whole circumstances show this right of
Dr Nielson's to be nominal, fictitious, and created on purpose to enable him to
vote for a Member of Parliament. . . . -
Answered for Dr Nielson to the firſt objection; That he is as fully in posses-
sion as an apparent heir can be, and as a naked superiority will admit of. *.
To the recond ; That, by the law of Scotland, a disposition does not denude
the disponer. He is held to be the vassal, until denuded by the infeftment of
the disponee, and, as such, would be entitled to vote, were it not for the statutes
made, which appoint freeholders to take the oaths of possession, and that they
are under no obligation to convey their rights. For this reason, if a disposition
shall be repudiated or discharged, it is as much annulled, and the disponer is as
fully in possession, and as little under any obligation to convey, as if the dispo-
sition had never been made. And this rule is equally applicable, whether the
disposition is discharged as to the whole subjects contained in it, or only as to
part of them ; whether both as to the superiority and property, or as to the su-
periority alone. Neither does it make a difference, whether this discharge be
granted before or after the dispoſer's death ; for, in either case, it is not a new
ight, to which new titles must be made up; it is no more than a document that
, $ Akº
rity, found
entitled to be
enrolled as a
freeholder.
256 MEMBER of PARLIAMENT. DIV, IV.
No 179.
No 18O.
A person
claiming to
be enrolled as
a freeholder,
in the charac-
ter of appa-
rent heir, pro-
duced his an-
cestor’s sa-
sine, but not
the charter
upon which
the sasine
proceeded.
His claim was
atjected.
No I 81.
The claim of
an apparent
heir was set
aside, though
he produced
titles, and his
grandfather
and father had
been enrolled
on the same
lands, be-
cause there
the possession is continued, and that there is no longer an obligation to convey
to another; and the heir's giving a consideration for the discharge and obliga-
tion, is no admission that it is a new right. r -
To the third ; That it is sufficient if the defender's right be properly establish-
ed, and cannot be lawfully destroyed or impaired. The law presumes not any
man's fraud; qua, contra bonor more junt, nec facere nos poſse credendum est.
“THE LORDs repelled the objections to the defender's qualification, and
found, That he is sufficiently entitled to continue on the roll of freeholders for
the shire of Selkirk; and therefore dismissed the complaint.”
Act. Montgomery. Alt. Ferguson. Clerk, Forber.
S. Fol. Dic. v. 3. p. 425. Fac. Col. No 149. p. 222.
--—-mºm---
1781. February Io. Moodie againſt BAIKIE.
Mr Moodir, claiming to be enrolled as a freeholder in the county of Orkney,
in the character of apparent heir, produced his ancestor's Sasine, but not the
charter upon which the Sasine proceeded.
- To this production, Mr Baikie - ... • *
Objected : By statute 16th Geo. II. no person can be admitted to the roll of
freeholders, as apparent heir, who does not exhibit a complete feudal title, in
the person of the ancestor. An instrument of sasine is merely a relative writing,
to which no credit can be given, if unsupported by the charter or other deed to
which it refers.
This objection was sustained by the freeholders. Mr Moodie complained to
the Court of Session, and there exhibited the predecessor’s charter. But
“ THE CourT dismissed the complaint.”
For Mr Moodie, Ilay Campbeſ/, et alii. Alt, Rolland, et alii. Clerk, Tait.
C. Fol. Dic. v. 3. p. 425. Fac. Col. No 3 1. p. 56.
—-mºsºm-
1781. February Io. GEORGE HALDANE againſt THOMAS TRAILL.
At a meeting of the freeholders in the county of Orkney, in 1780, Mr Trail
demanded an enrolment, in the character of apparent heir.
In support of this claim, he produced two retours of the ancestor, and the in-
struments of sasine following hereon, both dated in 1723, and duly recorded.
To this claim Mr Haldane -
Objected : To connect an instrument of sasine with the retour upon which it
proceeds, it is necessary to produce the precept issued from the Chancery, by
which the Sheriff is warranted to infeft the person served, in the lands contain-
SEet. 6. MEMBER of PARLIAMENT, . 257
ed in the retour. Without this, the feudal title is incomplete, and could not be
the foundation of a freehold claim in the person of the ancestor. Of necessary.
consequence, Mr Traill's neglecting to exhibit the precepts must, in terms of
the statute 16th Geo. II. prove fatal to his enrolment.
Anſwered; Mr Traill and his predecessors have been in possession of these
lands for more than 40 years, upon heritable titles. They are, therefore, by the
statute 1594, c. 218. freed from the necessity of producing the precepts of sa-
sine upon which their infeftments have proceeded. 4
“THE LORDs repelled the objection.”
N. B.-This gentleman's claim was rejected by the Court upon another
ground, which was, his not having properly ascertained the valuation of his
lands.
Objector, Ilay Campbell, et alii. Alt. Rolland, et alii, Clerk, Tait.
C. Fol. Dic. v. 3. p. 425. Fac. Col. No 3o. p. 55.
I783. january 25. John M'KENZIE against DonALD MUNRo.
IN this case, Mr Munro, in the character of apparent heir to his brother,
having been enrolled at the Michaelmas meeting 1782, as a freeholder in the
county of Ross, although no claim had been lodged for him till two days be-
fore the meeting, the LoRDs, upon a complaint in the name of Mr M'Kenzie,
founded on the statute 16th Geo. II, cap. 11. $ 7. -
Found, “That the freeholders did wrong in admitting Mr Munro to the roll
of freeholders, and granted warrant for his name being expunged.”
Act. Fºlinium. Alt. Alercromly. Clerk, Campbell.
{. Fol. Dic. v. 3. p. 426. Fac. Col. No 82. p. 130,
—— -
1793. january 19. f - . - .
WILLIAM MDowALL and GEORGE Houston againſt JAMES HAMILTON.
JAMEs HAMILTON was enrolled as a freeholder in the county of Renfrew, in
the character of heir apparent to his father, upon production of the following
titles; 1m0, A disposition of lands in favour of his father, affording a qualifica-
tion; 2d6, An instrument of sasine, proceeding on the precept in the disposi-
tion ; 3tio, A charter of confirmation of the disposition and infeftment, obtain-
ed by the claimant after his father's death. In a petition and complaint,
Messrs MDowall and Houston -
Pleaded, An heir apparent is only entitled to be enrolled where his prede-
cessor could have claimed that privilege. ; -
. K k
No 181.
appeared a
defect in the
proof of his
having the le.
gal valuation.
No I 82.
The claim of
an apparent
heir to be en-
rołled, must,
in the same
manner as
any other,
be lodged two
months be.
fore the Mi-
chaelmas
meeting.
No 183.
An heir ap-
parent may
be enrolled,
aiihough his
predecessor
had only a
base infeft-
ment, which
has been made
public by con-
firmation
since his
death,
258 MEMBER or PARLIAMENT. Div. IV.
No 183.
No 184.
A vote given
on a title of
apparency is
good, altho’
there was a
possibility of
a nearer heir
ioeing in ex-
istence at the
tiºne.
But the claimant's father having only a base infeftment, was not qualified,
and the charter of confirmation, obtained after his death, cannot be considered
as part of his titles; 3d July 1753, Abercromby against Gordon, No 177. p.
88o I. ~ - * . *
Anſwered, A charter of confirmation makes the base infeftment public from
its date ; Erskine, b. 2. tit. 7. § 15. ; Stair, b. 2. tit. 3. § 28. The intermediate
death of the party infeft does not hinder its operation; and to entitle an heir
apparent to be enrolled, it is sufficient for him to produce titles in the person
of his predecessor, which would have given him that privilege.
The Court, upon the grounds stated for the defender, dismissed the com-
plaint. - - -
# Act. George Fergusſon. Alt. Cha. Hay. Clerk, Gordon.
D. D. * * Fol. Dic. v. 3. p. 4-5. Fac. Col. No I4, p. 30.
•–—i-sºº ºm--
I 790. December 14. SPIERs against CAMPBELL.
AN apparent heir of a person whose estate had been vested in trustees, WaS
found entitled to vote.—See APPENDIx. -
5
3.*.
Fol. Dic. v. 3. p. 42.
-º-
&_ººls smººsºº
-º-,
1803. February 12. STEwART against BLAIR.
The Honourable Montgomerie Granville John Stewart objected to the claim
of enrolment of David Blair, Younger of Borgue, Esq; in the roll of freehold-
ers of the stewartry of Kirkcudbright. He claimed to be enrolled as apparent
heir of the late Lieutenant-Colonel John Blair, his elder brother, proprietor of
the lands of High Borgue, and others. He produced a charter under the Great
Seal, in favour of David Blair, Esq; his heirs and assignees whomsoever, and a
disposition of the lands granted by the said David to John. Blair, his eldest son,
and the heirs-male of his body, containing an assignation to the charter. and
precept, with an instrument of sasine following thereon, in Colonel Blair's fa-
vour; in consequence of which titles, he had for many years voted as a free-
holder in the stewartry. He died on the 13th July 1802, leaving a wife, but
no children; and his brother claimed upon his apparency on the 23d July
thereafter, at a meeting for the election of a Member of Parliament. His claim
having been sustained by the freeholders, Stewart presented a petition and
complaint against the enrolment; and - * - • .
Pleaded, Imo, The destination to John Blair, and the heirs-male of his body,
limited his right to that particular species of heirs, upon the failure of which, the
SECT. 6. MEMBER or PARLIAMENT. 259
superiorities then disponed must revert to the granter; Somerville against Tenant,
25th July 1688, No 1 1. p. 2949. ; Sir George MKenzie, b. 3. tit. Io. §.I.
2do, There was not sufficient evidence produced to the meeting of freeholders,
that Colonel Blair was actually dead, even supposing, by the terms of the desti-
nation, that the claimant had a title on apparency. It makes no difference that
the report of his death, which was then stated, turned out afterwards to be
true.
until it was known whether there was an heir nasciturus. He was alleged to
Have died suddenly, a few days before the meeting of freeholders. He was in
the prime of life, and his wife was younger than himself. In determining this
point, the Court must judge as if it had come before them when it came before
the freeholders, a few days after Colonel Blair's death. It is now, indeed, dis.
covered, that his wife was not pregnant; but that, as it could not have been
known then, cannot make a difference now. In such circumstances, the free-
holders did wrong in enrolling his brother ; for a child in utero is presumed to
be born in all things that concern its interest; L. 7. D. De ſtat. hom. ; Bankton,
vol. I. p. 47. - .
Answered, imo, The doctrine that a feu to heirs-male reverts to the granter,
Aupon the failure of these heirs, has been long obsolete. Had the grant been
made simply to Colonel Blair, without any mention of heirs at all, there can be
no doubt that it would have been liable to have been evicted for his debts, and
would have descended after his death to his heirs whatsoever. The original Ił2-
ture of feus may, perhaps, give some countenance to the complainer's doctrine;
but their constitution, in all the kingdoms of Europe, has been greatly chan-
ged; and they have been hereditary ever since the time of the Emperor Lotha-
rius, L. I. Cons. Feud. tit. 19. 20. ; and, accordingly, it has often been decided,
that a feudal investiture, taken to a person, and a particular series of heirs,
passes, upon the failure of these, to his heirs whatsoever; Erskine, b. 3. tit. 10.
§ 1. ; Johnstone against Marquis of Annandale, July 31st, 1759, No 39, p.
4356. - -
2do, The law does not require the evidence of a man's death to be establish-
ed by the positive deposition of witnesses who saw him die. The evidence of
Colonel Blair's death was perfectly sufficient, and all that can be required in
such circumstances; and the fact of his 'death upon the 13th July is indispu-
table.
3tio, It is a general rule of law, that the nearest heir in existence is entitled
to take up a succession; Mackinnon against Macdonald, February 14th, 1765,
No 34, p. 5279. ; Stair, b. 3. tit, 5. § 50. And although the Court, in some
cases, may be led to interfere and postpone the service, when there is room
for presuming the possibility of a nearer heir existing unborn at the time, there
f
3tio, As Colonel Blair left a widow, it was not competent to enrol his brother,
No 185,
26o MEMBER OF PARLIAMENT. DIV, IV.
No 185.
No 1 86.
No 187.
Yit is not ne-
cessary for
the husband
to wait a
is no ground for such a presumption in this case. Colonel Blair had been ma-
ny years married, without having any children; and it is evident now, by the
certificate of the Lady herself, which has been produced in process, that
no nearer heir is to be expected. In fact, Mr David Blair has been served
heir to his brother, which establishes a legal presumption, that there is none
Ileaſer. • .
The Court dismissed the complaint. Their Lordships, upon considering the
two first grounds of complaint, expressed a decided opinion, that they were
entirely without foundation. And, with regard to the possibility of Colonel
Blair's widow being pregnant, it was observed, that the service now expeded
was sufficient presumptive evidence of the contrary. -
For Complainer, Clerk, Rott, W. Erskine. - Agent, 4. Toung, W. S.
Alt. Solicitor-General Blair, Hay, Williamson, Cathcart. Agent, 4. Macwhinnie.
º 4. Clerk, Menzieſ. --
jº. * - Fac. Coll. No. 86, p. 192,
SEC T. VII.
Husband in Right of his Wife,
I 745. january 19.
- FREEHOLDERS of LANARK against HAMILTON.
A HUSBAND cannot be enrolled upon his wife's right of apparency; but must
make up titles in her person. W
Fol. Dic. v. 3. p. 426. D. Falconer.
*** This case is the second branch of No 1 1. supra.
-mº sºm--—
r 781. March 7. *
CHARLES DALRYMPLE and JAMES BREMNER against JAMES FARQUIIAR GRAY.
At the meeting for electing a Member of Parliament for the county of Ayr,
held in October 1780, Mr Farquhar Gray claimed to be enrolled upon the for-
lowing titles:
sacr. 7. MEMBER or PARLIAMENr. 26 I
Imo, Instrument of sasine of the lands of Gillmillscroft, in favour of Alex-
ander Farquhar, deceased, father-in-law to the claimant, dated 20th March,
and registered 20th April 1745, proceeding on a charter under the Great Seal
in his favour.
2do, Retour of the general service of the claimant’s wife, Jean Farquhar, as
nearest lawful heir of tailzie to the said Alexander Farquhar, dated 19th Fe-
bruary I 779. - - -
3tio, Charter of resignation under the Great Seal, in favour of the said Jean
Farquhar, of the lands of Gillmillscroft, dated 23d February : 779.
4to, Instrument of sasine following thereon, dated 28th April, and registered
6th June 1780. . . .
Mr Farquhar Gray's claim, founded on his wife's infeftment, was the first
taken under the consideration of the meeting. Before it was discussed, some
of his friends thinking it exceptionable, as his wife's sasine was registered about
six months only before the election, advised him to withdraw it, and to demand.
an enrolment in virtue of his wife's apparency as heir to her father. He did so,
and was admitted to the roll accordingly. Y - - **
In a complaint against this enrolment, at the instance of Messrs Dalrymple
and Bremner, it was -
Pleaded, To entitle a person to be enrolled in the character of apparent heir,
the predecessor's titles must be produced, by which is meant not the instru-
ment of sasine alone, but the whole feudal investiture. In this case, the pro-
duction consisted of an instrument of sasine, in favour of the predecessor, said
to proceed on a charter, which was not produced. The title of the claimant,
therefore, was essentially defective, the enrolment, of course, unwarrantable,
and the claimant fell to be expunged from the roll.
*
Answered for Mr Farquhar Gray, At a meeting for election, no previous.
claim is necessary. Upon the rights produced for the respondent, he was en-
titled to claim, Imo, On his wife's apparency; and, 2do, Upon the complete:
feudal title made up in her person.
Supposing the respondent's claim to be unsupported on the first ground, it is,
however, clearly well founded on the second; for the only objection: that can.
be suggested is, that Mrs Farquhar Gray's sasine was not recorded sooner than,
the 28th April 1782; from which it may be inferred, that, being, within year
and day of the meeting for election, the respondent ought not to have been ad-
mitted to the roll. But the obvious answer to this objection is, that, when a
husband claims to be enrolled in virtue of his wife's infeftment, it is not neces-
sary that the same should be recorded a year before enrolment. -
By the statute 1681, it is not required that the claimant's infeftment should
be completed any given time before enrolment. So stood the law, till the 12th
of Queen Anne, when the practice of conveying estates in trust, on the eve of
an election, for the purpose of creating nominal votes, was become frequent.
This statute proceeds on a recital, “That, whereas of late, several conveyances
y y - % y
*.
* *
No 187,
year after his
wife’s infeft-
ment, before
he can be en-
rolled.
262 - MEMBER of PARLIAMENT. Div. IV.
No 187.
‘ of estates have been made in trust, or redeemable, for elusory sums, nowise
‘ adequate to the true value of the lands, on purpose to create and multiply
‘ votes in elections of Members to serve in Parliament for that part of Great
‘Britain called Scotland, contrary to the true intent and meaning of the laws
‘ in that behalf,’ to prevent these abuses, it is enacted, “That, from and after
“ the determination of this present Parliament, no conveyance, or right what-
‘soever, whereupon infeſtment was not taken, and sasine registered, one year
‘ before the teſte of the writs for calling a new Parliament, shall, upon objec-
‘tion made on that behalf, entitle the person or persons, so infeft, to vote, or
“ to be elected, at that election, for any shire or stewartry in that part of Great
* Britain called Scotland; and, in case any election happen during the con-
‘tinuance of a Parliament, no conveyance, or right whatsoever, whereupon in-
‘ feftment is not taken, one year before the date of the warrant for making
‘ out a newswrit for such election, shall, upon objection made in that be-
“ half, entitiº the person or persons, so infeft, to vote, or be elected at that
‘ election.’ ” * - . -
As, by the same statute it was provided, that, to entitle a husband to vote in
right of his wife, the wife must be an heirers, and have the property of the lands,
it is inconceivable that the enactment requiring completion of the investiture,
a year before enrolment, could apply to that case, unless it had been meant
even to prevent persons from marrying heiresses, on purpose to multiply nomi-
nal votes. And all doubt on this head is removed by an express clause, decla-
ring, ‘That the right of apparent heirs, in voting at elections, and the right of
* husbands by virtue of their wives’ infeftments, be reserved to them as former-
‘ly; any thing in this act contained to the contrary notwithstanding.’
The only other statute, material to be observed, is that in the 16th of the
late King, in which there is the following clause: ‘That no purchaser, or sin-
‘gular successor, shall be enrolled, till he be publicly infeft, and his sasine re-
‘gistered, or charter of confirmation be expede, where confirmation is neces-
“sary, one year before the enrolment.’ - e • .
The respondent's wife is served heir general of tailzie to her father, which
gives her right, not to the lands of Cilimiliscroft alone, but to every subject de-
scendible to heirs of that character. It is obvious, therefore, that statute has
no relation to the present case -
Replied, Mr Farquhar Gray's claim was founded solely on his wife's right of
apparency. The judgment of the freeholders proceeded on that claim alone,
the illegality of which is now admitted by Mr Farquhar Gray himself. Such
being the case, it is incompetent for the Court of Review to judge, whether
the claimant might have been justly enrolled, had his claim been founded on
other grounds. The law requires that a claim should be exhibited to the free-
holders, reciting the particular titles and character on which the enrolment is
demanded. A claim either unwarranted by the titles, or unsuitable to the
character of the claimant, is equal to none. The judgment of the Court,
Sect. 7. MEMBER or PARLIAMENT. 263
therefore, sustaining the enrolment, would, in effect, declare, that a person
producing titles to the freeholders, without any claim, is entitled to be enrolled.
It has been always understood, that a husband, claiming in right of his wife,
was in no better situation than the wife herself would have been, could she ex-
ercise the privilege of voting in her own person. Had Mr Farquhar Gray pro-
duced the same titles in his own right, no enrolment could have proceeded on
them. In the character of apparent heir, the defect in his production is admit-
ted; and, as having the feudal right of the lands vested in him, the objection.
of his not being infeft a year before must have been fatal to his enrolment.
It is needless to argue upon the statute 1681. The law, since that period,
has suffered a total alteration; and no person, other than an apparent heir, can
be enrolled, unless his infeftment be registered a year before enrolment. As to
the saving clause, founded on by Mr Farquhar Gray, as suspending the opera-
tion of the statute of the 12th of Queen Anne, in the case of husbands claiming
in right of their wives' infeſtment, it cannot, in sound construction, have that
meaning. Apparent heirs are contained in the same exception. As their right “
of being enrolled required no infeftment in their persons, the Legislature could
not think it necessary to guard them against a law which related to a requisite
at no time essential to their qualification. The only clause applicable to both
enacts, “That no person or persons who have not been enrolled, and voted at
* former elections, shall, upon any pretence whatsoever, be enrolled or admitted
“ to vote at any election, except he or they first produce a sufficient right or
title to qualify him or them to vote at that election, to the satisfaction of the
‘ freeholders formerly enrolled, or the majority of them present.”—From this
part of the statute, the saving clause meant to except husbands and apparent.
heirs.
Observed on the Bench, There is no necessity for lodging a claim for enrol-
Iment previously to a meeting for election. A person, therefore, added to the
roll on that occasion, may support his enrolment in the Court of Review, by
showing that his rights laid before the freeholders entitled him to be enrolled,
though in a character different from that in which the freeholders sustained the
claim. The statutes requiring the completion of the freeholders investiture a.
. year before enrolment, cannot, in sound constrnction, extend to the case of.
liusbands claiming in right of their wives' infeftments.
“THE LORDs dismissed the complaint.” $
*
- . Act. Geo. F.ergusson. * - Alt. Roland. . -
C. Fol. Dic. v. 3. p. 426. Fac. Col. No. 46. p. 82.
*...* See Paterson against Ord, 1st February 1781, No 11. p. 3121, voce
CourTESY. .
No 187.
264 MEMBER of PARLIAMENT, IDTV, IV.
No 188.
A husband,
during the
lifetime of his
wife, has
right to vote
in virtue of
her infeft-
ment, though
she be not an
heires f, but
has acquired
by singular
titles.
Af
1786. January 25. General SKENE against GEORGE SANDILANDs.
THE proprietor of the lands of Nuthill, having four daughters, disponed his
estate to the eldest; who, after her father's death, took infeftment on the dis-
position, and obtained a charter of confirmation from the Crown. She after-
wards married Mr Sandilands, who, in virtue of the titles above mentioned, was
admitted among the freeholders of the county of Fife. - -
General Skene, a freeholder in that county, complained to the Court of Ses-
sion of this enrolment; and . . . . -
Pleaded, The right of voting at elections, in virtue of a wife's infeftment,
belongs exclusively to those who have married heiresser. Mr Sandlilands has
thus assumed a privilege to which he has no right, his wife's estate having ac-
crued to her by singular titles. By the rules of succession, it would have di-
vided between her and her sisters equally. - -
This distinction between the husbands of those who enjoy a landed estate,
by purchase, or by inheritance, as it flows from feudal principles, was natural-
ly adopted into the statutes relative to elections. Though not so distinctly
marked by that of 1681, it is explicitly recognized in the after one of Queen
Anne, enacting, ‘That no husbands shall vote at any ensuing election, in vir-
• tue of their wives' infeftments, who are not heiresser, or who have not right
* to the property of the lands, on account whereof such vote shall be claimed.”
It might, indeed, at first sight appear, from the latter part of the clause al-
ready recited, that the husbands, even of women who hold the property of
lands by purchase, were admitted to the privilege of voting. But the statute,
SO interpreted, would be inconsistent with itself. The meaning of the Legis-
lature certainly was, not only to confine this right to the husbands of heiresses,
put also to impose an additional restriction, among this class, with regard to
those whose wives had only a limited right, and not the absolute property of the
estates to which they had succeeded; Ist February 1781, Sir John Paterson
against Ord, No. II. p. 312 I. - *: t - - -
Answered, The obligation to attend the King's Baron Courts was a natural
consequence of holding a feudal estate of the Crown; and though, with regard
to fiefs possessed by women, this duty, from motives of delicacy, was under-
stood, while they remained single, to be virtually passed from by the Sovereign;
yet, during their coverture, it devolved on their husbands, who, as they en-
joyed the whole advantages of the lands, were justly called to perform this and
the other prestations of vassalage. From the same principle it arose, that, as
the husband of an heiress was, by the custom of Scotland, entitled, even after
his wife's death, to draw the rents of her estate in virtue of the courtesy, so his
obligation to perform the feudal services still continued; and it was only when
the wife had not taken her estate by descent, but had acquired it by other me—
ai-
SECT. 7. MEMBER OF PARLIAMENT. - 265
thods, that her husband, as in the case of Ord against Paterson, being, after
her demise, excluded from possessing the lands, was, at the same time, released
from the duties he formerly owed.
Our ancient law has not, in this respect, suffered any essential alteration. By
act 1681, the right of being enrolled as a freeholder is communicated to hus-
bands, for “the freeholds of their wives, or having right to a liferent by the
“ courtesy.” And by 12th Queen Anne, every husband indiscriminately is
allowed to vote, if his wife is either an heiress, or the proprietress of a freehold
of the requisite valuation, holding of the King or Prince. The latter part of
this clause was thrown in to prevent the creation of occasional votes on the eve
of an election ; as it was foreseen, that, without a limitation of this sort, life-
rent, or defeasible estates, would be given to wives, in order to qualify their
husbands to vote. - - - , . •
It was farther urged for Mr Sandilands, That his wife, with respect to an
estate descending to her from her father, though in consequence of a deed inter
vivor, was to be considered as an heiress. This argument, however, was un-
animously disregarded by the Court; it being evident, that Mrs Sandilands, in
the course of succession, would have been entitled only to a partial interest in
the lands.
THE LORDs dismissed the complaint, and found expenses due.
For the Complainer, Dºn of Faculty. - Alt. lWight.
{3. Fol. Dic. v. 3. p. 426. Fac. Coll. No. 250. p. 333,
1786. july 26. HENRY ERSKINE KNIGHT against GEORGE Robinsos.
Mrs.ERSKINE, spouse to Henry Erskine Knight, was, in virtue of marriage
articles, entitled, as heir of provision, to succeed to her father in the lands of
Pittodrie, to the exclusion of a brother by a former marriage.
Her father, however, having made out a disposition in her favour, she did
not complete her titles after his death by a service, but executed the procura-
tory contained in the disposition, and afterwards obtained a charter of resigna-
tion from the Crown. - - f
In virtue of these investitures, and without founding cri the marriage-con.
tract, Mr Erskine Knight was enrolled, during his wife's life, as a freeholder
in the county of Aberdeen. - . .
At the meeting for electing a Member of Parliament, in 1786, George Ro-
binson, a freeholder, objected to Mr Knight's continuing on the roll. Mºs
Knight was then dead; and although she had left children, yet the rights for-
merly produced being those of a singular successor, her husband, it was con-
No 188.
No 1.89.
The freehold-
ers having
struck off the
roll the name
of a person,
enrolled in
right of his
wife, during
her lifetime,
as it appeared
from the in- .
• L 1
vestitures,
that she was
only a singu-
lar successor,
and was since
dead; the
Lords, on a
complaint,
allowed the
complainer to
produce evi-
dence in the
266 MEMBER OF PARLIAMENT, Div. IV.
No 189.
Court of
Session, by a
deed of set-
tlement, that
his wife, bu-
ing an heiress
of provision,
he had right,
as tenant by
the countesy,
to continue
on the roll,
tended, had no right to the courtesy, nor, consequently, to the privileges of a
freeholder. f
The proceedings of the freeholders, who sustained the objection, having
been brought under review in the Court of Session, it was agreed, that Mr
Knight, on exhibiting the marriage-contract before mentioned, might be re-
admitted to the roll. But the question was, whether a new claim was neces-
sary.—For George Robinson, the objector, it was r
Peaird, Mr Knight's qualification was twofold; first, In, right of his wife,
during her life; and, 2dly, In his own right, as tenant by the courtesy; which
last qualification arose after his wife's interest in the estate had terminated, and
depended on circumstances altogether different. The claim on which he was
admitted to the roll, as well as the writings then produced, was solely applica-
ble to the former state of his titles, while the existence of his wife's brother, by
a former marriage, gave every reason to suppose, that a demand on his part to
be enrolled, as -the husband of an heirerſ, would have been unwarranted and
unjust.
The judgment of the freeholders, therefore, was perfectly unexceptionable;
nor can the Court of Session, on account of writings now referred to, and
which were not so much as mentioned to the freeholders, pronounce a contrary
decision. For though collateral or explanatory evidence may be adduced in
the Court of Review, it never can be thought that such documents as are ab-
solutely necessary for constituting the freehold qualification itself, may be there
xhibited for the first time; Sir John Gordon against Fraser, affirmed on ap-
peal, infra. -
Answered for Mr Knight, If a husband has been enrolled during his wife's
life, in virtue of her infeftment, his right as a freeholder must subsist after her
decease, in consequence of the courtesy, unless it can be shown, that the pe-
culiar circumstances of the case have created a disability. There is no neces-
sity for a new claim; which, however, would be required, if his right of voting
were understood, at the two different periods, to be essentially different.
Hence the only proper object of discussion here is, whether the objector has
produced sufficient evidence to support the proceeding of the freeholders, in
striking Mr Knight off the roll; and it is evident that he has not. As the
method in which Mrs Knight completed her titles did not, in the least, dero-
gate from her character of an heiress; so a reference to those titles was far
from affording satisfactory proof of her being a singular successor. The slight
presumption, for it is no more, which this circumstance occasioned, may, of
course, be competently obviated, by proper evidence, in the Court of Review.
The case is the same as if it had been asserted, that Mr Knight had mo right
to the courtesy, because no children had existed of the marriage; an alle §ºl -
SECT. 8. MEMBER of PARLIAMENT. 267
tion which, though credited by the freeholders, Mr Knight would have been .* No 189.
allowed to refute by a proof in the Court of Session. ºw
THE LORDs, by a considerable majority, found that a new claim was unne-
Cessary. -
For Mr Knight, Lord Advocate, Buchan-Hepburn, Geo. Fergusson.
Alt. Dean of Faculty, Wight. -
Ç. Fol. Dic. v. 3. p. 426. Fac. Coll. No. 289. p. 444,
*** See, in the Appendix, the case of Lord Woodhouselee, on the subject
of this Section, decided in the Summer Session 1804.
S E. C. T. VIII.
Splitting the Superiority.
1741. june 9. Sir John MAxwell againſt MºMILLAN.
No 19e.
Found, That a superior could not, without consent of his vassal, split the su-
periority among more superiors. See SUPERIOR and Vassal.
Fol. Dic. v. 3. p. 426. Kilkerran, (SUPERIOR and Vassal.) No 4. p. 529.
*** C. Home reports this case.
THE question betwixt these parties resolved in a neat point of law, to wit,
whether the superior of lands holding blench, could split or divide his right of
superiority without consent of the vassal?
Sir John the vassal brought a declarator, to have it found and declared, That
the superior could not; and pleaded, That it has been universally held by our
lawyers, as well ancient as modern, that a superiority is indivisible. It is
laid down as a maxim in our feudal law, non cogitur warralus, pro uno feudo -
duar fidelitater facere, see lib. 2. tit. '55. § 1. Gujarius, Book I. De feudiº.
Craig, lib. 2. Dieg. II. § 18. And that it arose from this principle, that, when
theirs-portioners succeed in the heritage of the ancestors, superiorities and their
casualties are not divided, as the other particulars of the heritage, but the el.
dest nortioner alone succeeds without any division; for this very reason, iest the
condition of the vassal be rendered worse, should the superiority be split among
several heirs-portioners. If it were allowed to multiply superiors, numberless
inconveniences would arise. A sub-vassal is liable to many casualties, from
the accidents which befal his immediate superior, his death, delinquincies, &c.
If he is subjected to twenty superiors instead of one, he must be involved in as *
L l 2 -
268 MEMBER of PARLIAMENT. Div. IV.
No 190.
Q
many questions with respect to those casualties, as he hath superiors, when the
different events fall out; or suppose this should not happen, he must be at the
charge of a number of different infeftments, instead of one, when it is neces-
sary to renew his right, or otherwise be subjected to as many processes of non-
entry; or, if his superiors should refuse to enter him, he must run precepts
against every one of them; and if they should happen not to be entered them-
selves, he must pursue declarators against them all before he can establish
a right to his feu. These hardships, in many cases, might be so heavy, that
it would be more eligible for the vassal to give up his feu, than to submit to
them. And as a superior cannot divide his superiority, neither can a vassal
voluntarily dispone his feu without the Superior's consent, either in whole or in
part, so as to compel the superior to receive the purchaser as his vassal. The
heir of the vassal may run precepts ; but there is no form of process known in
our law, whereby a singular successor can directly compel the superior to enter
him. The law indeed in favours of creditors, has given them a remedy, by
apprising and adjudication, to affect their debtor's estate; and thereupon, by
legal diligence, to proceed against the superior to enter the creditor faciendo
prout de jure; but, from none of the statutes relative thereto, can any inconve-
niency arise to, the Superior, but rather an advantage, by having an opportu-
nity of taking the land to himself at a competent avail, or, in his option,
a year's rent for entry of the new vassal; but, if any inconveniency should
arise to the superior, it is believed, that even this bout-gate way of stating the
purchasers as creditors, so as to carry on adjudications, would not avail, e. g.
If a feu-holding, for which the vassal paid L. Io of feu-duty, should, by di-
verse alienations of small parcels, be split into Ioo parts, so that each of the
vassals should be only obliged to pay pence for pounds, the superior, upon
showing cause, would not be obliged to divide the superiority, or the feu-duty
attending upon it, into such small reddendo'ſ as would not be worth levying;
but each of these parcels divided at first by the voluntary act of the vassal,
without congent of the superior, would be subjeet in ſolidum to the payment
of the superior's feu-duty, leaving recourse of relief to the vassals paying,
against the remaining co-vassals in the same feu. And this principle is so
strongly ingrafted in our constitution, that, in the case where a superiority
falls to many singular successors, by apprising or otherwise, the vassal needs
only take infeftment from the appriser having the greatest interest; at least this
doctrine is laid down by Lord Stair, B. 2. tit. 4 § 17.
Pleaded for Mr MºMillan, &c. the superior, That anciently when feus were
understood to be granted from the sole favour of the superior, neither the one
nor the other could alienate without consent, as is evident from lib. 2. feud.
tit. 55. pr. § 1. though even then it appears, that in some cases feus were di-
visible. But ever since they became the proper subject of commerce, both su-
perior and vassal are considered to have very different interests from what was.
competent to them by the ancient feudal customs; and, therefore, the vassal
SF cT. 8. MEMBER of PARLIAMENT. \ * 269
can either sell or gift, not only without, but contrary to the will of the supe-
rior; and, upon the same principle, the superior can dispose of the superiority,
without consent of the vassal. A vassal may alienate the whole or a part, either
directly or indirectly, upon which the superior must grant infeftment, though it
cannot be denied, that it is prejudicial to the superior to receive partial vassals
in the fee; and if this holds with respect to the vassal, it is not easy to discover
upon what principle the same rule should not hold with respect to the superior,
his obligation to the superior not being stronger than the counter-obligation of
the vassal to him. The superior is understood to have feued out his lands at
a lower rate, in respect of the reserved superiority; and it is known to be the
case, that even in a blench holding, one can sell his lands at a higher rate, than
he can feu them out to be holden of himself blench. Besides, as a superiority
may be purchased for money, it is as much the superior's estate, as the feu is
the vassal's, and as the vassal may multiply vassals, why should’ not the same
thing be allowed to the superior P To illustrate this, put the case, that the su-
periºr’s whole estate consists in a superiority, yielding yearly L. Iooo per an–
num, that he contracts L. 5oo of debt; and that the creditors bring an adjudi-
cation ; will it be said, that such a creditor is not under the regulations of the
statute 1672, that he must not bring a special adjudication in terms of the sta-
tute? may not "the debtor, complying with the rules of that act, save the
rest of his estate from being adjudged 2 and will not such special adjudication
expire, and evict the part of the superiority adjudged: The statute makes no
distinction, whether the debtor's estate consists in superiority of lands feued
out, or in the feu of such lands. In the case where no purchaser offers, the
act 1681 directs the estate to be divided amongst the adjudgers, without dis-
tinction what kind of an estate belonged to the debtor, whether property or
superiority; which, upon the pursuer's plan, is impracticable. Again, in the
case of adjudgers within year and day, who is the vassal's superior 2 as the tta-
tute has put them upon the same footing. In the next place, though the de-
fender's right is a superiority quoad the pursuer, yet quºad the Prince, theim-
mediate superior, his right is a right of property, a feu. Now, if the pursuer's
doctrine holds, where there are many intermediate superiors, there can be no
partial alienation of any of them, no adjudication could go against them in.
terms of the statute 1672; that statute could only refer to the vassal entitled
to the natural possession of the lands. And, with respect to any inconveni-
ency that may arise from the multiplying charters and sasines, the law does
not regard that, when the relief is not augmented ; no more than in the case
where the vassal divides his feu amongst many different hands, which always
puts the superior to more trouble in levying his feu-duty; see Voet. in his di-
gression de feudir, No. Io9. July 30. 1678, Luss, voce SUPERIOR and VassaL.
THE LORDs found the superior could not convey the superiority to different
persons without the vassal's consent. \
G. Home, No 160. p. 234.
3y
No 1 90.
270 - MEMBER or PARLIAMENT, Div. Iv.
No 191.
No 192.
No I 93.
176c February 5. CAMPBELL and GRAHAM againſt Muir. -
THE Earl of Glencairn conveyed the superiority of certain lands to Boyd Por-
terfield of that Ilk, the vassal, who disponed it partly to Daniel Campbell of
Shawfield, and partly to William Graham younger of Gartmore in liferent, and
to the Earl in fee. Objected, That as the charter from the Crown to Mr Porter-
field contained one joint reddendo for the whole lands, it was not in his power
to separate them without the consent of the Crown. Anſwered, The precept
bears to assignees, which implies consent to dispome the lands in whole or in
part; at any rate, the superior cannot be prejudiced by the division, the whole
lands, and every part thereof, being liable for the reddendo. THE LORD's repel-
led the objection, and ordained the claimants to be added to the roll.
Fol. Dic. v. 3. p. 426.
*** This case is No. 8. p. 7783. voce Jus TERTII.
1751. july 28. SrewART against DALRYMPLE.
ALEXANDER Earl of Galloway, in the view of creating certain freehold quali-
fications, granted a feu-charter of certain lands to Lord Garlies, his son, and
afterwards obtained a charter from the Crown upon his own resignation, and
conveyed parcels of the superiority to Mr Walter Stewart and others, his
friends. The freeholders, on different grounds, refused to enrol; and complaints
being presented, it was pleaded for them, inter alia; That the dispositions to the
claimants were null, as granted without the consent of Lord Garlies the vassal,
which was necessary before the superiority could be divided. Answered, That
as the vassal may sell part of the lands without the consent of the superior, so,
in like manner, may the Smperior sell a part of his superiority without consult-
ing the vassal. But here there was no division of the superiority of any one
fee, but a distribution of the superiorities of several distinct fees, distinguished
into several parcels, each parcel consisting of so many pounds and merk lands;
and that at any rate the objection was jus tertii to the freeholders, as the vassal
did not object. THE LORDs repelled the objection. . . . . . - -
- Foſſ. Dic. v. 3, p. 427.
*
- *** This case is No. 18. ſupra.
1780. March. Fergusos againſt MonTCOMERY...
Sir John AnsrRUIH&R held the lordship of Giſſen blanch of the Earl of
Eglinton, for payment of Cne penny Scots, ri petatur tantum. The Earl split
this superiority into different parts, for creating qualifications. Objected to the
w
*.

SEtºr. 8. - MEMBER OF PARLIAMENT. - 271
claimants on these qualifications, That as Sir John Anstruther, the vassal, paid
only one penny Scots, ſi petatur, for the whole lordship, so that blench duty
neither was divided, not was divisible; and as each claimant had only an undi-
vided share, it was an established maxim, that no person could be qualified to
vote as a freeholder, without having a distinct property, and a distinct posses-
son. THE LCRDs sustained the objection.—See APPENDIx.
Fol. Dic. v. 3. p. 428.
-- - – mºs-Esº- ~
1781. january 23. JAMES FERRIER againſt The Hon. HENRY ERSKINE.
THE barony of Drumry, in the county of Dumbarton, is held bleneh by the
Earl of Crawfurd, off Lord Graham, eldest Son of the Duke of Montrose, for
payment of eight pennies Scots, or a pair of spurs.
The superiority of the forty-shilling land of Cloverhill, part of that barony,
was conveyed by Lord Graham to Mr Erskine, with an assignation to the rents
and casualties, and with powers to Mr Erskine to enter and receive vassals, &c,
Upon these lands Mr Erskine was enrolled as a freeholder in the county of
Dumbarton. - Af
In a complaint against this enrolment, in the name of Mr Ferrier, it was
maintained, That the blench duties, payable by Lord Crawford the vassal, for
the whole barony, were not divided ; and that Mr Erskine, therefore, had not
a separate possession of the lands upon which he was enrolled.
Airwered for Mr Erskine, In bench holdings, the duty, payable by the vas-
sal, is merely an acknowledgement. As this acknowledgment is incapable of
division, when a partition of the superiority takes place, the vastal must per-
form it to each superior. The vassal may object to the multiplication of supe-
riors; but it is jus tentii to the freeholders.
Observed on the Bench, The Superiority of a tenement holding blench can-
not be divided. A blast of a horn, a rose, a pair of spurs, cannot be delivered
in parts. When a part of a superiority of this nature is disponed, no posses-
, sion can be attained on it. A qualification founded thereon is purely nominal
and fictitious; and Mr Eiskine's enrolment, on this account, was unwarrant-
able. -
“THE LORDs found, that the freeholders did wrong in admitting Mr Erskine
to the roll,” &c.
*- For Mr Erskine, David Graeme. Alt. Craig.
Fol. Dic. v. 3. p. 428. Fac. Col. No 21. p. 42.
*** This case was appealed.
The House of LoRDs, 17th April 1782, “ORDERFD and ADJUDGED, That
the appeal be dismissed, and the interlocutor complaired of reversed; and it
is declared, that the appellant was entitled, in virtue of his titles, to be enroll-
•ed on the roll of freeholders for the county of Dumbarton.”
No 193.
No 1 94.
Found in con-
formity with
Ferguson
against Mont-
gomery,
rapra, but
reversed up-
on appeal.
27.2 MEMBER of PARLIAMENT. Div. Iv.
No 1 95.
Division of
superiority
null, when
made without
Consent of the
vassal.
*
1781. January 31. ,
DUKE of MONTROSE, and Others, against SIR. JAMES Colquhoun.
Sir JAMES CologHous is proprietor of certain estates in Dumbartonshire,
which he holds of the Duke of Montrose, as superior; who having, with the
design of creating freehold qualifications, parcelled out the superiorities of these
lands among fourteen different persons, by granting to them liferent-rights, Sir
James instituted against him and his disponees, a reduction of these rights, as
being productive of an undue multiplication of superiors. §
Pleaded for the defenders, Imo, “Alienatio superioritatis permittitur dominis,
dummodo vassali conditio in ea non sit deterior.” This rule is delivered by
Sir Thomas Craig, (lib. 2. D. 1 r. § 35.) and results from the first principles of
law relative to property in general. If then no real damage arises to the pur-
suer from the present alienations, they ought to receive the sanction of the
Court. *
Those parts of the feudal law, which are now obsolete or abrogated, being
overlooked, it is evident, that the connection of superior and vassal, imports
only, on the part of the superior, an obligation to enter the heirs or singular
successors of his vassal; and, on the part of the latter, that of acknowledging
the former, by taking the holding from him, and paying the casualties of entry
and relief, together with the ordinary annual prestations. In none of these re,
spects does the condition of the pursuer become worse, in consequence of the
present multiplication of superiors, by liferent infeftments, which are all life-
rents by constitution. . For, as to the casualties, it appears, from the authorities
of our lawyers, as if liferenters of this sort had not even the power of entering
heirs; but it is clear, that the existence of a liferent, though by reservation,
does not bar the fiar from the exercise of his right of superiority; and conse-
quently leaves to the vassal an 'option of resorting to him for an entry; Craig,
j. 2. d. 12. § 16. Ib. d. 17. § 42.; Erskine, b. 2. t. 9. § 42. Since then such
an option is reserved to the pursuer, his condition, in this respect, is nowise al-
tered for the worse. And, with respect to the annual prestations, these wholly
consist in blench duties of an elusory nature; and no effect of real moment can
be produced in them by any multiplication of superiors. *
Anſwered, It is a doctrine of the feudal law established in ours, “ Ut vasal-
lus pro uno feudo plures dominos habere non compellatur: Consuet, feud.
Stat. Rob. III. 9th June 1741, . Sir John Anstruther against Alexander Mac-
millan, No. 190, supra. Hence a superior cannot convey his right of Supe-
riority, so as to interpose another person between him and his vassal. And
hence that right is considered as a jus individuum, which of course falls to one
only of several heirs-portioners. . * t
The defenders have denied the wisdom or expediency of this principle, in
relation to the present case; but their reasoning is erroneous. The power of
*A.
SECT. 8. MEMBER OF PARLIAMENT. 273
entering vassals is the characteristic of the right of superiority. Accordingly,
though the infeftment of a person, interposed between the superior and vassal,
is, qaoad the right of superiority, void and null; yet this infeftment will carry
in favour of the grantee, as a donatary or assignee, all the duties and casualties
of superiority; and the only criterion of its nullity is, that it confers not the
power of entering vassals; Lord Stair, b. 2. 1: 4. § 5. Douglas of Kelhead
against Vassals, 3oth Jan. 1671, voce SUPERIOR and VASSAL. Every right of su-
periority, therefore, whether in liferent or in fee, necessarily comprehending the
privilege of entering vassals, it is plain, that in this, as well as in other respects,
the right of the liferenter, while it subsists, is exclusive of that of the fiar;
which, meanwhile, remains dormant or suspended; Stair, b. 2. l. 6. § 8. And
hence has arisen the general practice, that liferenters concur with fiars in
granting charters or precepts of clare constat. Thus, it is evident, that the mul-
tiplication of superiors, which the liferent-conveyances in question were de-
signed to create, would be attended with every effect belonging to the right of
superiority; and, of course, would subject the pursuer to the obvious inconve-
niences which must result from a vassal's subordination to thirteen additional
superiors.
The Court “sustained the reasons of reduction.”
It, a reclaiming petition against this judgment, the defenders endeavoured
to found an exception from the general rule thereby adopted, upon this alleg-
ed specialty, that several of the subjects in question, though by the indulgence
of the superior, they have been contained in one charter, were, however, dif-
ferent tenements, and held for different prestations. But the Court refused this
petition, without answers.
Iord Ordinary, Gardenston. Act. Baillie. Alt. Lord Advocate, H. Brºkine. Clerk, Robertson.
S. Fol. Dic. v. 3 p. 427. Fac. Col. No 25, p. 46.
* tº *** This case was appealed.
º
THE House of LoRDs, 19th February 1782, ‘ORDERED and ADJUDGED, That
~he appeal be dismissed, and the interlocutors complained of be affirmed.'
&
-sºº Lº-r--
**-
*781. February 17. SLOAN LAURIE againſt HAMILTON and CAMPBELL. . .
CAMPBELL of Skerrington held certain lands, and among others, the two-
merklands of Horsecleugh, of the Earl of Dumfries, who, in 1774, conveyed
the superiority of these lands to different persons in liferent, for the purpose of
giving them freehold qualifications. Campbell was ignorant of these proceed-
ings till within a short time of the election 1780, when he brought a reduc-
M m
No 195.
No 1.96,
274 MEMBER OF PARLIAMENT. Div. IV.
No 1.96, tion, for setting them aside. Sloan Laurie, one of the disponees, claimed to be
enrolled at Michaelmas 1780, on the two merk-land of Horsecleugh and others;
but to this claim, Campbell, who was himself a freeholder, objected, That the
claimant's titles were null, as tending to create an undue multiplication of su-
periors on the vassal. The freeholders sustained the objection; but the LoRDs
found they did wrong, and ordered the claimant's name to be added to the
roll.
Fol. Dic. v. 3. p. 428. Fac. Col.
*** This case is No 9. p. 7786. voce Jus TERTII.
S E C T. IX.
Alteration of Circumstances, .
1771. February 14.
p The Hon. CHARLES HoPE WEIR againſt Mr ALEXANDER BRUCE.
No 1.97.
*...*. º º THE property lands of Bonnyton, in the county of Linlithgow, were valued,
division of in cumulo at L. 8co Scots. Mr Glen, the proprietor, obtained from the Com-
valuation, b {º} tº tº º º ,” * e
which a ... missicners of Supply a division of that valuation into two parts; one of which,
holder’ - • * > * * * * * : * * *
tºº. valued at L. 402 : 9:7, he conveyed to Mr Alexander Bruce; the other, valued
juj be at L. 397 : 10 : 5, with another small subject to make up the full valuation of
... iša a freehold qualification, he conveyed to Dr Glen. In the course of stating ob-
i. lººd jections to these qualifications, it appeared, that a pendicle of land called Cor.
i. nilaws, which, in dividing the cumulo valuation, had been considered as part of
roll, though the lands of Bonnyton, and as forming a part of Mr Bruee’s qualification,
he had been was held burgage of the town of Linlithgow ; so that the valuation of these two
upwards of
fºur months parts should have stood thus: Dr Glen's part, valued at L. 397 : Io: 5, should
enrolled. have been L. 411 : 9: 9, and Mr Bruce's, valued at L. 4oo 9:7, should have
been only L. 388: Io: 3. * + f
The objection to Mr Bruce, that he did not possess the valuation required by
law, being stated, it was answered, That the objection did not appear from the
decreet of division, which was ex facie regular, and must be held to be just till
set aside by a process of reduction. The Court was of opinion, that this objec-
tion was not competent in a summary complaint ; and accordingly sustained
Mr Bruce's qualification. Y A.
Thereafter, Mr Hope Weir brought a reduction of the decree of valuation;
in which it was found, that Cornilaws was no part of the lands of Bonnyton,
but a burgage tenement held of the town of Linlithgow; and the decree was
accordingly reduced and declared to be null and void, Objections to Mr Bruce's.
Sect. 9, MEMBER or PARLIAMENT. 275
qualification being regularly lodged previous to Michaelmas 1769, stating, that
there was such an alteration of his circumstances as authorised his being ex-
punged from the roll, a majority of the freeholders voted, Not to expunge.
In a petition and complaint, Mr Hope Wier contended, that no person was
entitled to stand upon the roll of freeholders, unless his lands were either a 4o
shilling land, or were valued in the cess-books at L. 4oo Scots, evidence also
being produced of their being separately valued at that sum. If such free-
holder should afterwards alienate any part of his qualification, or if his titles,
apparently good at the time of enrolment, should be afterwards found not
good, it was competent for any freeholder to object and have him expunged.
Now, though freeholders were bound to regard decrees of division, ex facio re-
gular, as legal evidence of a valuation, and thereon to admit a claimant, yet if,
upon proper investigation, such decrees were found to be erroneous, the law was
not so unjust as to leave the wrong without a remedy. It was accordingly com-
petent for any freeholder, or any heritor paying cess in the county, to bring
a reduction of such erroneous decree; and if he prevailed, any freeholder, upon
giving in objections in proper form, was entitled to have such person expunged
from the roll. This remedy was pointed out by the act 16th Geo. II. by which
it was declared, that a freeholder, however long he may have stood on the roll
unchallenged, might yet be struck off, “upon sufficient objections arising from
the alteration of that right or title in respect of which he was enrolled.” Ap-
plying this regulation to the present case, Mr Bruce could not have been en-
rolled unless he had instructed that his lands stood valued at L. 4oo; hence the
decree of division was a necessary title for his enrolment; and as it was now
reduced, there was a material alteration of his circumstances, his valuation being
now less than L. 4oo. . . • .
Mr Bruce anſwered, . . . . -
Imo, That the statute 16th Geo. II. did not authorise a complaint in a case
of this nature. That statute gave redress, 1ſt, When a claimant at a Michael-
mas meeting was either wrongfully enrolled, or his claim rejected; 2d, When -
an insufficient.objection against a person who had formerly stood upon the roll
was sustained. . It no where authorised a complaint such as the present; but,
on the contrary, considered the right acquired by one, who, without a complaint,
had been four months upon the roll, to be absolute, and not to be overturned
but by a judgment of the freeholders, allowing an alteration of his circum-
"Stan CeS. ' - . . . - . .. . -
2do, As the respondent's title deeds stood in the same situation as when he
was originally enrolled, there was no alteration of his circumstancs. The evi-
dence of the qualification upon which the freeholders had proceeded, was not
the decree of division now said to be reduced, but a certificate under the hands
of the clerk and two Commissioners of Supply, which was still unimpeached.
And as the complainer fiad neither applied to the Commissioners of Supply for
x - - - M m 2.
* * *
No 1.97.
. . .
No 197.
No. 198.
On a free-
holder’s dis-
poning his
lands with
procuratory
and precept,
it is sufficient
to preserve
his right, that
in the procu-
ratory, and
likewise in a
separate obii-
ligation, the
disponee is
taken bound
3) Ot to exe-
cute the pro-
curatory.
276
MEMBER OF PARLIAMENT. DIY. IV.
a new valuation, nor had inserted a declaratory conclusion in the action of re-
duction of the old valuation, he could not bring before the freeholders any
legal evidence, that the respondent's lands were valued at a lower rate than . .
L. 429. - - - -
THE LORDs were clear as to the merits of this case, that it was a complete al-
teration of circumstances; and the only doubt they entertained was of the
competency; they were, however, in general of opinion, that the statute should
be supported, though extended to a caſuſ improvirur, which it was admitted the
present was. They therefore “repelled the objection to the competency of
the petition; find that the freeholders did wrong in continuing Mr Alexander
Bruce upon the roll; and grant warrant to and ordain the sheriff-clerk of Line
lithgow to expunge his name from the said roll.”
For Bruce, Crosbie.
Fac. Col. No 75. p. 217.
For Hope Weir, Lockhart, Baillie.
R. H.
—ssº-
1774. February 23.
CAPTAIN THOMAS DUNBAR of Grangehill, against CAPTAIN DUNCAN URQU-
HART of Burdsyards, and Others.
CAPTAIN DUNBAR's claim for enrolment, as a freeholder of the county of
Elgin, was, by the meeting of freeholders assembled at Michaelmas 1773, re-
jected on the following grounds; 1st, That, at Michaelmas preceding, while
he stood on the roll, it having been objected to him, that he was denuded of
his qualification, and he, when ordered to confess or deny the facts on which
this objection was founded, having remained silent, was expunged from the roll ;
and, therefore, that it was not competent for him now to claim to be enrolled
on the same titles; and, 2dly, That, independently of that ref judicata, the
objection was still insurmountable, Captain Dunbar having actually granted a
disposition of the lands on which he was enrolled, with procuratory and pre-
cept, in favour of another person. *:--> --
In a complaint preferred to the Court, Captain Dunbar insisted, that neither
of the grounds stated by the freeholders was sufficient to support their proceed-
ing ; and,
As to the first, pleaded; The doctrine of res judicata, arising from the esta-
blishment of regular courts, is not applicable to the determinations of free-
holders at their Michaelmas meetings, who, except in one instance, are at li-
berty either to adopt or reject the resolutions of prior meetings. The single :
exception is that introduced by act 16th Geo.II, which declares, that a free-
holder enrolled, and standing on the roll, not complained of, for four kalendar:
months, shall continue there till an alteration of his circumstances happen.
But the enactment does not extend to the case of a claimant who has been kept.
Sect. 9. MEMBER OF PARLIAMENT, 277
# .
*
off the roll. Freeholders of Lanark contra Menzies, in 1768; MºQueen and No 198.
Dundas contra Freeholders of Linlithgow, in 1768. See APPENDIx.
With respect to the ſecond objection, pleaded ; It is true the complainer has
granted a disposition of the lands composing his qualification, with procuratory
and precept; but then the procuratory is expressly so limited, that it cannot,
* take effect until his death; the plain consequence of which is, that he retains
the right of superiority during his life. Besides, the disponee has executed a
separate obligation, by which he has bound himself to hold the lands of the
complainer during his life, and neither to execute the procuratory, nor confirm
a base infeftment, nor adjudge in implement of the disposition. Murray contra
Neilson, 5th March 1755. No 149. supra.
Anſwered, with regard to the firſt point ; A judgment of freeholders, when
acquiesced in for four months, is not liable to review, any more than if it had
been confirmed by a decision of this Court, or of the House of Peers.
With respect to the ſecond objection; The lands are hereby absolutely con-
veyed, no limitation of the disponee's right appearing either in the dispositive
clause, or in the obligation to infeft, which is both a me and de me; for, not-
withstanding the reservation in the procuratory, the disponee might, by con-
firmation at any time, become the vassal of the Crown. The complainer's
right has thus become precarious ; and none such, a proper wadset alone ex-
cepted, can constitute a freehold qualification. Nor can the obligation refer-
red to have any other effect than to shew the complainer's sense of the lame-
ness of his right. It has, however, been put on record; but if that circum-
stance could have mended the matter, it should have been year and day prior
to the meeting; whereas it was not even executed three months before it, 17th
January 1755, Dundas contra Craig, No 166. supra.
Replied; Registration year and day previous to enrolment is indeed necessary
as to every writing or deed on which the claimant, either in whole or part,
founds his title. But here the obligation is none of the grounds of the com-
plainer's title, being calculated merely to obviate any objection that might e.
ventually be made to these grounds. . . -
THE LORDs “ordered Captain Dunbar to be added to the roll.”
Act. Lockhart. Alt. M*@ueen, Ilay Campbell.
} Fac. Col. No Io9. p. 289. -
y
-*-mº sºm----
1781. january 23, IIAY CAMPBELL againſt MAlcolm FLEMING.
IN the year 1773, Mr Fleming was admitted to the roll of freeholders in the No I99.
- º No alteration .
county of Dumbarton, as liferenter of sundry lands, part of the estate of Cum- of circum.
bernauld. In October 1779, Lady Elphinstone, proprietrix of that estate, for Stances when .
the renewak tº
278 MEMBER or PARLIAMENT. Div. IV.
No 1 99.
of the free-
holder’s in-
vestiture does
not proceed .
upon his re-
Signation.
No 2 oo.
A party
granted to
his son a dis-
position of
the lands on
which he had
stood on the
roll. His
son was in-
feft ; but,
six months
before an
election,
granted an
obligation
not to exe-
cute the pro-
curatory.
The disponer
found to have
suffered no
such altera-
tion of cir-
Culm Stan Seš
as to occasion'
his expunc-
tion from the
Loll.
the purpose of creating a qualification on the fee of these lands, granted a new
disposition to Mr Fleming, in liferent, and to another person in fee.
Upon this disposition, which was immediately followed with infeftment, the
fiar lodged a claim, to be enrolled at the Michaelmas head-court 1780; and, in
this claim, Mr Fleming concurred, stating his newly acquired titles, and con-
cluding either to be continued in his former place on the roll, or to be enrolled
of new. -
The meeting for electing a Member for the county having taken place on
the 14th September 1780, it was objected to Mr Fleming's remaining on the
roll, that, by his acceptance of a new right, and claiming to be enrolled there-
on, he had virtually renounced that upon which he was admitted to the roll.
To this objection it was held by the Court to be sufficient answer, that, as
the new infeſtment did not proceed upon Mr Fleming's resignation, the old one
still subsisted in his person. They, therefore,
“Repelled the objection.”
Objector, Ilay Campbell. Alt. Ro. Dunduſ.
G. Fac. Col. No 22. p. 43.
—nº lººm-
1781. March 7. JoHN RUSSEL against WILLIAM FERGuson.
MR FERGuson stood upon the roll of freeholders in the county of Ayr as in-
ſeft in the lands of Auchinsoul. In the year I 766 he granted a disposition of
these lands to his son, containing procuratory and precept, and the son took in-
feſtment on the precept.
In the month of April 1780, Mr Ferguson, for the purpose of preserving his
freehold qualification, obtained from his son an obligation not ta execute the
“ procuratory, nor take any step for divesting him of the superiority of the
* lands during his life.’ And this obligation was immediately recorded in the
register of renunciations and reversions. º ./
At the meeting for election taking place six months after the date of this
obligation, an objection was stated to Mr Ferguson's title, that, by granting the
disposition of his estate, his right therein became defeasible, and of course
ceased to entitle him to the privilegesºf an elector; and that the obligation
from his son, not having been perfected year and day, was ineffectual to restore
him. º
This challenge, which was over-ruled by the freeholders, was brought under
review of the Court of Session, when it was • . *
Pleaded for Mr Ferguson ; Freeholders cannot expunge a person from the roll
on account of an alteration of circumstances, where the title on which he wº
admitted cannot be defeated by such alteration. The amouñt of the present
SECT. 9. MEMBER OF PARLIAMENT. 279
objection is, that it was in the power of a third party, at one period, to have
defeated the respondent's freehold qualification
The requisite of year and day, introduced by the 12th of Queen Anne, and
continued by subsequent statutes, was calculated to prevent the admission of
nominal and fictitious voters, reared up on the eve of an election, not to afford
a captious and unnecessary challenge against persons already enrolled.
Had Mr Ferguson been divested of the superiority, it might have been con-
tended, that the same formalities were necessary as in a new acquisition. But
he has at every period been superior of the lands; and no deed by his son, nor
diligence of his creditors, can denude him.
• THE LORDs repelled the objection, and dismissed the complaint.”
Act. W. Bailie. Alt. j. Boswell.
C. * Fac. Col. No 49. p. 87.
*** A similar case had occurred from Perth in 1765, Craigie of Dumbarnie,
See WIGHT. See APPENDIx.
December 8. The Hon. JAMEs ERSKINE against RoPERT GRAHAM.
I790.
Mr. JAMEs ERSKINE of Alva, one of the Senators of the College of Justice,
Being superior of certain lands in the county of Stirling affording a freehold-
qualification, conveyed to a relation of his, a liferent of the superiority; and
a charter of resignation was obtained from the crown, in favour of that person
in liferent, and of his Lordship in fee.
When this transaction took place, Lord Alva was enrolled among the freehol-
ders of the county of Stirling, as proprietor of certain lands, which he after-
wards sold. At the meeting, therefore, for electing a member of parliament on
6th July 1790, he claimed enrolment, as superior of the lands first mentioned,
and for that purpose he produced his investitures, which had been completed
before the giving away of the liferent-right.
To this claim it was objected by Mr Graham, one of the freeholders, that,
by the resignation, the former investitures had been completely done away, and
could not be the warrant of an enrolment. This objection was sustained by the
freeholders. .
But, after advising a petition and complaint for Lord Alva, which was follow-
ed with answers, replies, and duplies, the Court being-clearly of opinion, that a
charter of resignation in favour of the resigner himself, though burdened with a
liferent in favour of another person, did not invalidate a claim of inrolment,
founded on the former investitures, -
The Lords found, That the freeholders had done wrong in not admitting
Lord Alva, &c. and found expences due.
Nota, Before these proceedings, the liferenter had executed a renunciation
of his right, and Lord Alva had obtained a new charter. This however, he
Ne
No 2 oo;
No 2 or.
A superior
of land ob-
taining a
charter of
resignation in
favour of
another per-
son in life-
rent, and of
himself in
fee, may,
nevertheless,
claim enrol-
meht as a
freeholder in
virtue of his
former invese
titutes.
28o MEMBER OF PARLIAMENT, IDIv. V.
|
No 201. not being able to produce, but only an extract of it, the determination of the
No 202.
Court entirely rested on the validity of his original titles.
Act. Abercrombic. Alt. W. Robertron, et alii.
C. Fol. Dic. v. 3. p. 420. Fac, Col. No I56. p. 312.
*** See M'Lean against M'Neil, 2 3d June 1557, voce SALE,
D I V I SITO N V.
Procedure in the Court of Freeholders.
S E & T. I.
Time of holding the Court.—Can Freeholders be compelled to meet,
—Quorum.—Calling the roll, and choice of Prescs and Clerk.
THE Sheriffs having been irregular as to the time of holding Michaelmas
head-courts, it was, by act 16th Geo. II. cap. II. enacted, That every She-
riff should, at least 14 days before Michalmas, appoint a precise day for hold-
ing such court in the year 1753, causing the same to be intimated at all the
parish-churches within the shire, upon a Sunday at least eight days preceding;
and that the day so to be fixed, should be the anniversary for holding the Mi-
chaelmas head-court in that county, in all time to come.
I753. December 20.
M“KENZIE of Highfield against FREEHOLDERS of CROMARTY.
A GENTLEMEN, who had duly lodged a claim to be enrolled as a freeholder of
Cromarty, preferred a complaint, setting forth, That the anniversary Michael-
mas meeting had not been held, so that his claim was not judged of, and pray-
ing the interposition of the Court; the LoRDs dismissed the complaint as in-
competent, they having no original jurisdiction in matters of enrolment. This
seems then to be a great grievance without a remedy. See Kames's Law
Tracts, v. I. p. 32c, and Principles of Equity, p. 57, v. 2. Third Edition. See
APPENDIX. gº & &
Fol. Dic. v. 3. p. 428.
SECT, I. MEMBER OF PARLIAMENT. 281
1762. M'KAY of Strathie, and Others, against John RIDDoch, and Others.
THERE is no number of freeholders required by law to make a quorum; and
where a single freeholder had attended by himself, and gone through the busi-
ness, the LoRDs dismissed the complaint of another freeholder, objecting to the
legality of the court, in respect it was held by a single person. They also
found, that the Sheriff clerk had incurred the statutory penalty, by refusing to
call the rôll made up at that court. See APPENDIx. *
Fol. Dic. v. 3. p. 428.
-mº ºm-- *
SIR JAMES STEwART against — — —.
By 16th George II. cap. II, § 13, it is enacted, “That if the Commissioner
* last elected, or, in his absence, the Sheriff or Steward's clerk, shall, in the
‘ choice of preses or clerk, receive the vote of any person who does not stand
‘ upon the said roll, (the roll last made up), he shall for every such offence
‘ forfeit the sum of L, 300 Sterling to every candidate for the office of preses
“...or clerk respectively, for whom such person shall not have given his vote;
‘ and for refusing the vote of any person whose name is upon the roll, he shall
‘ for every such offence forfeit the like sum of L. 300 Sterling to the person
* whose name shall not be called for, or whose vote shall be refused.’ But this
is to be understood fanso sensu, as not extending to persons legally disqualified,
or otherwise clearly not entitled. Thus at a meeting for election for Mid Lo-
thian, in 1744, the name of Sir John Stewart appeared upon the roll 1742, be-
ing the roll last made up. The present Sir James Stewart claimed a vote for
preses and clerk; but the Commissioner last elected being satisfied that the
name in the roll did not apply to him, but to his father, who had been omitted
to be struck off at his death, refused to admit him. Sir James preferred a
<omplaint upon the statute, insisting for the penalty; but the complaint was,
refused. See APPENDIx. ---
i Fol. Dic. v. 3. p. 428.
$
©
*** See Fraser against Gordon, No 156. supra.
N n
No 203.
No 294.
282 *- MEMBER or PARLIAMENT. DIV. V.
No 205.
No 206.
S E C T. II.
Claim to be enrolled.
ſº
1754. january 16, SIR ARCHIBALD GRANT againſt John LEITH of Leith-hall.
John LEITH was enrolled by the freeholders of Aberdeenshire at their Mi-
chaelmas meeting 1753. Sir Archibald Grant complained of the enrolment,
and objected, That the claim lodged by Mr Leith did not set forth the precise
sum at which his lands stood valued; but only.that their valuation exceeded
L. 4oo Scots.
THE LORDs were of opinion, that it was not necessary to mention the precise
sum in the claim, and therefore
“ They dismissed the complaint.” ~
Act. 4. Lothart. Alt. Ch. Hamilton Gordon. Clerk, Kirkpatrick.
.B. Fol. Dic. v. 3. p. 429. Fac. Col. No 96, p. 146.
•-sºº lººse-
*
1762. January 5. GoLDIE againſt
WHERE a claim bore, that the claimant's sasine was recorded in one register,
when, in fact, it was recorded in another, an objection pleaded on that ground
was sustained. See APPENDIX.
Fol. Dic. v. 3. p. 429.
—-ºxº--
I 762. January I5. ELLIOT againſt FER GUSON.
OBJECTED, That an enrolment could not proceed in respect the claim was not
lodged till four o'clock P. M. of 6th August, and the freeholders met before
two o'clock of 6th October, so that the two kalendar months had not run.
Answered, It is enough that either the day on which the notice is given be free
or the day to which it is given, and if either the 6th of August or the 6th of
October be computed, the two months will be complete. THE LORD's repelled
the objection.
Fol. Dic. v. 3. p. 429. Fac. Col.
*...* This case is No 6, p. 3469, voce DIES INCEPTUS, ,
Sect. 2. MEMBER or PARLIAMENT, 283
1773. March 3. - * - - -
Mr CoSMo GoRDON, Advocate, againſt ALEXANDER ABERNETHY of Mayen.
THE claim lodged for Mr Abernethy, in order to be enrolled at Michaelmas
1772, bore to be ‘As heir apparent to the deceased James Abernethie his father
‘ who stood on the said roll of freeholders for the county of Banff, at the time
‘ of his death, in virtue of his charter and infeftment on the lands of Mayen,
‘ and others, therein specified, lying within the parish of Rothemay, and coun-
‘ty of Banff; which charter and infeftment are here with produced.”
Mr Abernethy having been enrolled at the Michaelmas meeting, not-
withstanding an objection made thereto by Gordon, one of the freeholders
present, because the copy of his claim lodged with the Sheriff-clerk did
not specify, either the dates of his predecessor's titles, the particular
lands on which he desired to be enrolled, or their extent or valuation, which
were essential requisites, in claims, whether of an apparent heir, or singular
successor : Mr Gordon presented a complaint against this enrolment, under the
authority of a clause of the 16th of his late Majesty, which enacts, that, to
prevent all surprise at the Michaelmas meetings, every freeholder who intends
to claim to be enrolled, at any subsequent Michaelmas meeting of the free-
holders, shall, for the space of two kalendar months, at least, before the said
Michaelmas meeting, leave with the Sheriff, or Stewart's clerk, a copy of his
claim, setting forth the names of his lands, and his titles thereto, and dates
thereof, with the extent or valuation on which he desires to be enrolled; and,
in case of his neglect to leave his claim as aforesaid, he shall not be enrolled
at such Michaelmas meeting, &c. * -
In answer, Mr Abernethy endeavoured to distinguish the case of an ap-
parent heir from that of a singular successor, to whom alone, he argued, the
reason of the statute applied. But the words of the statute were thought to be
so generally conceived, as to leave no room for such distinction. -
“THE Lords find, that the freeholders did wrong in admitting Alexander
Abernethy on the roll of freeholders; and, therefore, grant warrant to expunge
his name from the said roll.” - -
Act. &l. General, Alex. Gordon, jun. Alt. Elphinstone, j. Boſwell. Clerk, Pringi. ;
. . . . . . Fol. Dic. v. 3. p. 429. Fac. Col. No 65, p. 156.
* *, *. The Court had formerly repelled the objection of the want of the dates
of the titles in two cases, Ogilvie of Clova against Couts, and Skene of Skene
against Graham, both in 1768. See APPENDIX. -
No 208,
Objection
sustained to
the enrol-
ment of an
apparent heir,
on a claim
lodged with
the Sheriff-
clerk, that
the claim was
defective, in
so far as it
neither men-
tioned the
dates of the
predecessor’s
titles, nor the
particular
lands on
which the
claimant de-
sired to be
enrolled, nor
their extent
or valuation.
284 MEMBER or PARLIAMENT: . Div. v.
No 209,
A freeholder
Call not re-
strict his title
of enrolment,
unless a pre-
vious claim
has been
lodged for
that restric-
tion.
1774. Auguſt 9. -
ALEXANDER and ANDREw STUARTs against DANIEL CAMPBELL of Shawfield.
IN 1760, Mr Campbell was enrolled as a freeholder in the county of Lanark,
as apparent heir in the barony of Thankerton to his grandfather, the person
last infeft in it, and afterwards, having agreed to dispome the lands of Hall.
hill, a part of said barony, to Major Alexander Stewart, did, for that purpose,
expede a charter under the Great Seal, anno 1772; and having dispomed the
said lands of Hallhill to Major Stewart in liferent, and himself in fee, and as-
signed the precept in the charter corresponding thereto, the Major was infeft in
this liferent right of the lands of Hallhill; and Mr Campbell was infeft, in
September 177 3, in the whole remaining lands contained in the crown charter, -
and also in the fee of the lands of Hallhill, in virtue of the precept in said
charter. And, in consequence of this transaction, there was obtained from the
Commissioners of Supply a decree of division of the cumulo valuation of the
barony, whereby a certain proportion was allotted to Hallhill. - -
At the last Michaelmas meeting of the county of Lanark, 5th October 1773,
the minutes bore, ‘That Mr Campbell of Shawfield represented to the meeting,
that he was enrolled a freeholder on the 17th January 1760, as heir apparent
‘ to the deceased Daniel Campbell his grandfather, in all and hail the lands and
‘ barony of Thankerton, lying in the parish of Bothwell; that he was desirous
to restrict his title of enrolment to certain specified lands, being part of the
said barony, and standing valued in the valuation of the book of the county,
as therein mentioned; and that the meeting having considered Mr Campbell's
request, and certificate produced, they restricted his enrolment, and ordained
the same now to be on the above mentioned lands, and his name to remain in
the same place of the roll where it now stands; whereupon instruments were
* taken.” . . . .
Messrs Stuarts, two of the freeholders, preferred a complaint to this Court,
praying to find, that Mr Campbell ought not to have been continued upon the
roll of freeholders, and to ordain him to be expunged therefrom.
The complaint was laid partly upon objections to Mr Campbell's titles, and
partly upon irregularities said to have been committed in the division of the
cumulo valuation between the lands alienated and those retained by Mr Camp-
bell. To each of these, answers were made ; and, at the same time, the com-
petency of the complaint, in the way it has been laid, was disputed.
Upon this point, pleaded for Shawfield; - •
The adjustment of the rolls of freeholders is entirely regulated by the statute
of the 16th of his late Majesty; aud the powers of this Court, which has no
$
radical jurisdiction in that matter, can go no further than the statute has
thought proper to carry them. And, from the clauses of the statute which au-
thoriscs complaints to this Court against the proceedings of a court of freehold-
\
SECT. 2. MEMBER of PARLIAMENT. 2.85
§
ers, it is evident that there is nothing therein that can support the present com-
plaint; on the contrary, it is very clear therefºom, that the present claim is
altogethef incompetent and inadmissible.
It is clear, that, when a person is put upon the roll of freeholders, and when
no complaint is preferred to this Court against that enrolment, within four ka-
lendar months of the meeting of enrolment, that he must remain on the roll
thereafter until an alteration of his circumstances is allowed of by the freehold-
ers, as sufficient for striking him off the roll ; and whoever intends to object to
him, must lodge his objection in writing two months before the Michaelmas
meeting.
Two things, therefore, are necessary, in order to obtain the expunction of a
freeholder standing on the roll; in the firſt place, that there shall be a suffi-
cient objection, arising from alteration of circumstances; 2dly, That this objec--
tion shall be lodged two months before the meeting—That the respondent has-
undergone an alteration of circumstances is very true, in so far as he has given
off a small pendicle of his estate; but it is equally true, that the objection
from thence arising is a very insufficient one. 2dly, No objection at all was
lodged previous to the meeting, as required by law; and this being the case, "
the respondent, who has stood upon the roll since 1760, cannot, without a re-
peal of the foresaid statute, be expunged. ---
Answered ; With respect to the exception taken to the competency of the
complaint, as having no authority from the statute of the 16th of the late
King, the question is new ; and though the complainers will readily admit that
it does not, at first sight, seem to fall within the express words of the above-
mentioned statute, the complainers contend that the respondent is, by his own
fact and deed, barred, personali exceptione, from insisting upon this objection to
the competency of the complaint; and that, even allowing the Wrong Com-
plained of, by continuing the respondent upon the roll, upon a restricted in-
sufficient qualification, not to come within the express letter of the law, how-
ever obviously within the purview thereof; for redress of every wrong commit--
ted by these Michaelmas meetings in matters of enrolment, it is parf judiciš.
to find, the law comprehends every such case as the present.
For though the complainers may safely admit, that a freeholdé ; standing
upon the roll, is under no positive obligation, upon his being denuded of part
of the lands in right of which he stood formerly enrolled, to apply to the free-
holders to restrict his enrolment to those parts of his original qualification which,
he still retains, in respect that, upon such alteration of circumstances, it is
competent to any other freeholder, upon objections timeously lodged with the
Sheriff clerk, to insist that the freeholder enrolled shall, in respect of the
change of circumstances, be struck off said roll, in case the lands retained do
not amount to a legal qualification ; yet where, as in the present case, the
freeholder enrolled, who has aliened part of his original qualification, does ex.
proprio motu apply to the Michaelmas meeting to have his qualification and en-
No 2C9,-,
286 - MEMBER or PARLIAMENT. Div. v.
*No 209.
No 2 Io.
The omission
to lodge an
objection to
sone's author’s
rolment restricted to the lands reserved, it is incumbent upon him to satisfy the
meeting, by proper legal evidence, that the lands reserved are of such extent
or valuation as entitles him to continue on the roll ; and, consequently, that it
must be competent to the freeholders to judge whether the remainder entitles
him to be continued upon the roll or not; and that the same rules must take
place, in supporting the legality of the restricted qualification, as would have
taken place in the Čase of a split new enrolment; that, as supposing the free-
holders to have done wrong by striking him off the roll, notwithstanding that
his reserved lands amounted to a legal qualification, it must have been compe-
tent for him to have applied to this Court, by complaint, for redress of that
wrong, under the authority of the above-mentioned statute ; so, upon the
contrary supposition of the freeholders having sustained the restricted qualifi-
cation, however improperly, as sufficient to continue him upon the roll, upon
the footing of that restriction, it must be equally competent to the other free-
holders to sue for redress of that wrong in the same form and manner, by com-
plaint to the Court, as would have been competent to the freeholder himself in
the other case. If this were not to be allowed, the most absurd consequences
would follow. - -
Replied, in answer to the plea that the respondent had created a jurisdiction
in the freeholders, by claiming a restriction of his original title of enrolment;
Though a freeholder should rise up and discover to the meeting, that he has
denuded himself of one half or two thirds of his former titles, this will be no
ground for turning him de plano off the roll, though it will very naturally lead
them to enquire whether he has reserved a sufficient qualification or not ; and if
they find that it is insufficient, they may lodge an objection to him two months
before next Michaelmas, and then bring his title, in regular form, under trial.
The judgment of the Court was as follows;
* THE LORD's find the restricted enrolment in favour of the respondent, at
‘Michaelmas last, was inept, and not in terms of law; but, in respect no ob-
‘jection was lodged upon the alteration of circumstances, in terms of the act
* of the 16th of the late King, they dismiss the complaint and assoilzie the
respondent; reserving to the complainers still to object to the respondent's
* title to continue upon the roll, as accords.’
Alt, Dean ºf Faculty. . Alt. Ilay Campbell. clerk, cample.
Fitc. Col. No 134. p. 355.
-**śāms-
- -- . . _s.
1775. December 15. £olonel ROBERT SKENE against JoHN ADAM.
At Michaelmas last, Colonel Skene claimed to be enrolled as a freeholder in
the county of Kinross, upon an unquestionable title, derived from Mr Laurence
Craigie, writer to the signet, to certain lands, which made a part of the quali-
fication on which his author stood enrolled.
SECT. 2.
MEMBER or PARLIAMENT.
287
When the claim came to be considered by the meeting, it was objected by
Mr Adam, “That the statute of the 16th of George II. ordains, that, to pre-
‘ vent all surprise at Michaelmas meetings, whoever intends to object to any
• freeholder who stands upon the roll, on account of the alteration of his cir-
‘cumstances, shall, at least two kalendar months before the Michaelmas meet.
‘ing, leave his objections in writing with the sheriff clerk, as aforesaid; who is
thereby required, upon receipt of the foresaid objections, to indorse on the
‘ back thereof the day he received the same, &c.; and whereas no such ob-
‘jection has been regularly made against Mr Laurence Craigie, he cannot le-
&
‘ gally be struck off the roll; and, therefore, Colonel Skene cannot be enrolled
‘ at present, in respect another gentleman stands already enrolled upon the
* same lands, and, therefore, they have it not in their power to turn that gen-
“ theman off, to make way for the Colonel.’
To this objection one of the freeholders present anſwered, That, as Colonel.
Skene's claim and writs were lodged in due time, it is sufficient evidence that
Mr Laurence Craigie is denuded of the lands for which he is enrolled, and that
he desires to be struck off the roll.
of the Preses of the meeting, to continue Mr Craigie on the roll, and to refuse
to take under consideration Colonel Skene's claim, a complaint of this deter-
mination was preferred, alleging, That no instance ever occurred of a person's
being kept off the roll, upon an objection so insignificant and so frivolous as the
present. ... --
“THE LoRDs found, that the freeholders of the county of Kinross did wrong
‘ in refusing to enroll the complainer in the roll of freeholders of the said coun-
* ty; and, therefore, grant warrant to, and ordain the sheriff-clerk of the said
county forthwith to add his name to the said roll.'
Clerk,
Fac. Col. No 205, p. 150, .
Act. 27. Aftercromby. .
Alt. Croſbie.
178o. july 20.
Major ALEXANDER DUNDAS againſt ALEXANDEP. FERGUsorſ.
A CIAIM for enrolment was presented to the meeting of freeholders of the
- - - * . \. - rº, ºr : * * • . -
county of Ayr, at Michaelmas 1779, in the name of Major Dundas, who was
then serving with his regiment in America, but who had given no mandate or
commission authorising any person to appear in his behalf on that Occasion.
An objection founded on these circumstances was made by Mr Ferguson to
this claim ; upon which the meeting refused to enroll the Major. In a com-
plaint to the Court, offered in his name, it was g
Pleaded ; The claim was lodged by those who had the custody of the Ma-
jor's papers. This custody implied a sufficient mandatc
- ; January 12. 1694,
King contra Seton of Barns, voce PROCESS. -
But it having carried, by the casting vote
No 2 Io.
qualification
to continue
on the roll,
on account of
being denud-
ed, is no rea-
son why the
successor,
producing
titles, shouldſ
not be enroll-
ed in his
stead.
No 21 1,
A mandate
necessary to
authorise a
claim for a
person resid.
ing abroad to
be enrolled at -
a meeting of
freeholders.
Ste/No 218, .
infº a. 3.

288
MEMBER or PARLIAMENT. Div. V.
No 2 I I.
No 212,
The objec-
tions to a
claim, that
there had
been a want
of form (not
essential) in
taking the
sasine, that
there was a
4:onfnsion in.
the descrip-
tion of the
lands, and
that the
writer of the
disposition
was not pro-
perly design.
ed, were re-
spelled.
Answered ; In all courts of law it is required, that an express mandate
from such suitors or claimants as are out of the kingdom should be produced
by those who act in their name; Bankton, b. 4. tit. 3. § 25. 26. ; February
3. 1681, Stewart, No 17. p. 353. Nor does this requisite seem less necessary
in a meeting of freeholders than in other courts. -
“THE LORDs found no claim properly entered entitling to be enrolled.'
Act. G. Fergusson. Alt. Alex. Wight. Clerk, Mackenzie
S. Fol. Dic. v. 3. p. 429. Fac. Col. No 120. p. 222.
1781. january 17. - w -- s
Sir John Scott of Ancrum, Baronet, and PATRick KERR of Abbotrule, Esq.
against Sir JoHN DALRYMPLE of Cowsland, Baronet.
SIR John Dalrymple claimed to be enrolled at the time mentioned in No
97. supra; and, as his qualification stood upon part of the same lands with
Sir Gilbert Elliot's, the same objection was stated upon the decreet of division,
and reference was made to the arguments pleaded for and against Sir Gilbert
Elliot. But the three following objections were also stated. n
In the first place, There is a nullity in Sir John Dalrymple's sasine. It bears
to have proceeded upon the precept contained in the charter from the crown in
favour of Sir Gilbert Elliot; and, although it mentions that a disposition and
assignation was granted by Sir Gilbert Elliot, in Sir John Dalrymple's favour,
which might, if properly used, have authorised infefting Sir John under the
crown-charter ; yet the instrument of Sasine does not mention that this dispo-
sition and assignation was received by the bailie from the attorney, or that it
was delivered to the notary, and, by him, or any other person, openly read and
published to the witnesses; or that, after such publication, sasine was given to
..Sir John, in virtue of the assignation. The sasine, therefore, was given, not
only contrary to the uniform practice in all such cases, but contrary to the
clearest principles of law and common sense ; for it was, in fact, the same as a
sasine without any warrant whatever. In order to shew the practice, and make
the imperfection of the present sasine appear more evident, a copy was subjoin-
ed to the petition, with the omissions printed in Italics. - -
In the second place, The lands of Kaimside-park and Kaimsmuir-park, fall
under the lot of Sir John Dalrymple's qualification, but are neither in his dis-
position nor Sasine. , e * . -
And, Hartly, The writer of the disposition, by Sir Gilbert Elliot to Sir John
Dalrymple, is not designed, and, consequently, the disposition itself is abso-
lutely null and void, by the acts 1593, c. 175, and 1681, c. 5. The writer
is called John Scott, clerk to the signet; but there is no such person in exis.
tence; so that, if the writer's name be truly John Scott, yet surely his desig-
nation is false, which comes to the same thing as no designation at all. -
Sect, 2. MEMBER or PARLIAMENT, 289
In answer to the firſt objection, it was observed, That there was a distinc-
tion made by...our lawyers, between the formalities of a sasine and its essentials;
but that the publishing and explaining the assignation of a precept was never
said to be even a formality, and much less an essential solemnity of the sasine.
It may have been introduced into some practice, ab majorem cautelam, but was
never necessary; and, so far is the practice from being uniform, as set forth by
the complainers, that, in the very book which is put into the hand of every
notary, as his guide, called, “The Art and Office of a Notary Public,’ there is
no more required than what was done in this case, viz. producing and exhibit-
ing the assignation, without a syllable of reading it over, publishing, or ex-
plaining. The form in the Supplement of Spottiswood's Styles differs a little
from that now mentioned, but still more from the complainer's form, particu-
larly, in so far as concerns this objection. The rule laid down in act 1693,
c. 35. respecting the sasine of an heir or assignee, is clearly to the same pur-
pose. . . . ' -
The second objection arises from a mistake in point of fact; for Kaimside and
Kaimsmuir are only parcels of Kaims-farm, which is all in Sir John's infeſtment;
and the reason why they got particular names, was in order to ascertain the
rent of them by the oaths of the tenants, when the decree of disjunction was
applied for. The farm of Kaimes, all excepting these parcels, was in Sir Gil-
bert Elliot's own possession. . .
As to the third objection, it is confessed that there is here a t riffing omission;
for the writer, through the hurry of making out different dispositions, wherein
he was designed, “John Scot clerk to Cornelius Elliot writer to the signet,’ had, -
in this, omitted the words, ‘To Cornelius Elliot writer.' But though this
might seem to fall under the letter of the law, yet it does not fall under the
spirit of it. The acts 1593 and 1681 were meant to prevent frauds in testa-
ments, and other deeds, which appeared after the granter's death, where the
strictest precaution are necessary. But here both the writer and granter are at
hand, to confirm the authenticity of the deed ; and the Court have allowed an
omission of this kind to be supplied, in cases of much more importance. This
was done particularly, in the case of Duke of Douglas against the Creditors of
Littlegill, voce WRIT. In that case, which was a ranking of creditors, an
adjudication was produced, which proceeded on a doqueted account in 1663.
The writer of the doquet was not designed; but the Court allowed that want
to be supplied by proof. -
Replied on this last objection ; That the acts are so far from being in any -
shape limited to testaments, that the very deeds expressly mentioned in them
are charters and contracts. And, as to the case of the Duke of Douglas, the
decision there went upon a relaxation of the act I593, or a doubt of its mean-
ing. This is evident from a decision collected by Fountainhall, Maxwell contra
Earl of Nithsdale, voce WRIr, where the Lords found that the practice had
“. . Q o -
sº
No 212.
292 MEMBER or PARLIAMENT.
Div. V.
No 212.
(No 213.
allowed the condescending upon the writer, or his designation, till that was
discharged by act 1681. •.
Duplied; The freeholders could not judge of the validity or truth of any
deed, which was, ex facie, complete, as in the present case ; and, even suppose
a regular process of reduction had been brought, the acknowledgment and ho-
mologation of the granter would have been an unanswerable defence.
“THE LORDS repelled the objections, and dismissed the complaint.”
Act. H. Erikine. - - Alt. R. Blair, & R. Dundar.
I). - p Fac. Col. No 15, p.28, .
º 178 1. *. February 8. DALRYMPLE of Orangefield against CAMERON. -
A can of enrolment was lod ged with the sheriff clerk of Ayrshire, in the
name of Lieutenant John Cameron of the West Fencible Regiment ; and a
person was enrolled at the Michaelmas meeting of that county, 1780, who, as
it afterwards appeared, was not Lieutenant John Cameron, but Lieutenant Dun-
can Cameron. A complaint having been brought against this enrolment, on
account of the misnomer, Mr Cameron pleaded, That it could be proved
that he had agreed to accept of a liferent qualification in the county; and that
he was baptised by the name of Duncan John ; that though he held his com-
mission under the name of Duncan, yet the designation of Lieutenant
Cameron, of the West Fencible Regiment, would have been sufficient, there
being no other officer of the name of Cameron in the regiment at the time ;
, and that the addition of John was no misnomer, for that though not the whole,
No 214.
it was part of his christian name. This ingenious argument, however, had no
weight with the Court, for they found, “That the freeholders had done wrong.
in enrolling the respondent under the name of Lieutenant John Cameron, and,
granted warrant for expunging him.’ - - .
Supplement to Wight, p. 18.
—mºm-
1783. january 25. M'KENzie against Monko.
THE claim of an apparent heir to be enrolled, must, in the same manner as ,
any other, be lodged two months before the Michaelmas meeting.
_* - - Fol. Dic. v. 3. p. 429, Fac. Gol:
*, * This case is No 182, p. 887.
º
sier. 2. MEMBER or PARLIAMENT. 291
*
1796. February 24, MKAY of Scotstown against Houston of Creech.
MR M'KAY of Scotstown claimed at Michaelmas 179 5 to be enrolled a free-
holder in Sutherlandshire, and produced, as his titles, a charter and sasine of
certain lands, which are thcre said to be contained in two contracts of wadset ;
but the claim did not specify whether Mr M'Kay claimed as wadsetter or pro-
prietor, nor were the contracts of wadset produced to the meeting. This,
among many other objections, having been stated, the freeholders refused to
enrol Mr M'Kay, who thereupon complained to the Court of Session ; and af.
ter advising the complaint, with answers, replies, and duplies, the Court order-
ed Mr M'Kay to be added to the roll. A reclaiming petition was refused, with-
out answers, 9th March. +.
- - Supplement to Wight, p. 22.
.* -—nº Emº--—
1796. February 26. - * - -
JAMEs LINDSAY CARNEGIE, Esq; of Spynie and Boysack againſt CHARLEs
- GARDYNE, Esq. -
THE objection, ‘That the claim did not at all specify the register in which
* the claimant's sasine was recorded, having been repelled by the freeholders,
the Court of Session, upon advising a complaint by one of them, with answers,
replies, and duplies, affirmed their judgment, and awarded expenses against the
party who complained of it. And this, although it was pleaded by the com-
plainer, that since both the statutes last mentioned, and the previous one of
12th Queen Anne, cap. 6. § 1. require the sasine to be registered for a certain
time before enrolment, registration of the sasine is thereby chiefly made an es-
sential ingredient in the qualification; and that therefore the expression dates'
in the act of the late King must apply equally to the registration, as to the tak-
ing of the Sasine.
- Supplement to Wight, p. 16.
1796. February 26. LINDSAY CARNEGIE against LINDSAY.
A case occurred, in which it was objected, That the claim had not specified
the year of registration. The claim run thus, “.. Which charter bears date the
* 5th day of July 1794, and is written to the seal, and registered, and sealed
“ the 9th day of September 1794; 2do, Instrument of sasine thereon, dated
“ the 23d of September, and recorded in the particular register of sasines kept
‘ at Dundee, for the shire of Forfar, the 24th of said month.' But it being
answered, That the ‘said month' clearly referred to the year last specified, es-
- O o 2
No 215.
No 216.
No 2 I 7.
292
MEMBER or PARLIAMENT. P)IV. V.
No 2 I 7.
No 2 18.
A mandate is
necessary to
authorise a
claim for a
person resid-
ing abroad to
be enrolled at
a meeting of
freeholders.
See No 2 I 1.
stºpra.
1862. july 6.
pecially as no other month of September had occurred betwixt the date of the
charter and the sasine founded on, and the lodging of the claim, the Court re-
pelled the objection. .
Supplement to Wight, p. 17.
—ºm--— -- - - - - - -
DAVIDSON againſt ELPHINST on E.
A CLAIM of enrolment was made in the name of the Honourable Charles El-
- phinstone, at a meeting of the freeholders of Stirling, on the 13th January 1802.
This claim was brought forward by Robert Hill, writer to the signet, in the
capacity of agent to the petitioner, who produced the following titles; 1. Char-
ter of resignation under the Great Seal, in favour of the said Mr Hill,
dated the 5th, and written to the Seal, and registered the 14th of July 1800;
2. A disposition from Hill to the petitioner, dated 5th September 1800, con-
taining an assignment to the charter of resignation, and to the unexecuted pre-
cept of sasine; 3. Instrument of Sasine, following on the charter and disposi-
tion, in favour of the claimant, dated the 8th, and recorded on the 24th, De-
cember 18Oo. -
Harry Davidson, one of the freeholders, objected, first, That the titles did
not afford legal evidence of old extent, in terms of the act. of Parliament; and,
secondly, That, as the claimant was out of the kingdom, and as no special man-
date from him was produced, the claim made in his name by Hill could not be
received. The freeholders repelled these objections; and Davidson complain-
ed, by a petition to the Court; in which, reserving the intrinsic objection to
the titles, with regard to the preliminary objection of there being no speciali
mandate, he - . *
Pleaded ; Every individual who is out of the kingdom of Scotland, and who
means judicially to claim any right, can do it only by the intervention of some
person possessing a mandate or power for that purpose. The possession of title-
deeds does not afford a presumption of this mandate, sufficient to entitle the:
holder to insist in a suit in the name of a person abroad ; Bankton, B, 4. Tit,
3. § 25. Stewart, No 17, p. 353. ; and there is no provision in the statutes
relative to the election of Members of Parliament, exempting claims for enrol:
ment as a freeholder from this general rule of law, and conferring upon a court.
of freeholders the power of dispensing with this requisite. There is no evi-
dence that Mr Elphinstone wished to acquire this estate, and still less that he
inclined to be enrolled upon it as a freeholder; for possibly he may be con-
scious of labouring under some one or other of the personal disqualifications.
The act 16th Geo. II. c. 11. $ 7. expressly requires a claim to be made previous
to every Michaelmas meeting; and a claim is equally necessary at a meeting:
for election. It further provides, That every party who may conceive himself
*
SECT. 2. ' MEMBER of PARLIAMENT. 293
aggrieved by the Judgment of the freeholders, may apply summarily, by com-
plaint to the Court of Session ; and an indipensable requisite for insisting in
this complaint, when the pursuer is abroad, is a formal mandate. It makes no
difference that Mr Elphinstone appears here as as a defender, since, in the ori-"
ginal court of freeholders, he came in the character of a claimant. And ac-
cordingly this point was decided, Dundas against Ferguson, July 20, 1780, No
2 I 1. ſupra, by which a mandate was held to be requisite. . . -
Answered ; The production of title-deeds at a meeting of freeholders is a
a sufficient mandate for enrolment. Although some express authority may be
necessary for instituting a suit in the name of a person abroad, which may
eventually be attended with serious patrimonial consequences, it is altogether
different with respect to a claim for elective franchise. Every possible hazar
is incurred whenever the feudal title is made up ; and the insertion in the roll
of freeholders being in all cases an advantage to the party, is to be presumed
to be agreeable to his intentions, though there be no written authority for that,
purpose. In this case, Mr Elphinstone is already upon the roll, and appears
n Court in poſsessorio, as a party defending a right already in his person, not
in petitorio, craving that a right might be granted in his favour. Unless this
were admitted, persons in his situation, while abroad in the service of their
country, might be deprived of their most valuable rights, by omitting to com-
ply with a form which, in many cases, it is impossible to observe. There is no-
thing, accordingly, in the statutes, relative to the election of Members of Par-
liament, which supports such critical accuracy in opposition to material justice;
and the only case quoted in favour of such a doctrine, Dundas against Fer-
guson, July 20, 1780, alluded to, was decided by a very narrow majority
of the Court, and in circumstances materially different from the present. It
was with respect to an enrolment at a Michaelmas meeting, and not a meeting
for election ; and the claimant had remained several years in this country with-
out giving any authority for the proceeding. Yet, even in these circumstaces,
the justice of this decision has been doubted ; Wight on Elections, page 154.
THE LORDs sustained “the objection stated, That no mandate was produced
for the Honourable Charles Elphinstone at the meeting for election, or has been
produced in this Court; and therefore find, That the freeholders did wrong in
enrolling him in the roll of freeholders of the county of Stirling; and grant
warrant to, and ordain the Sheriff-clerk of the said county, to expunge his
name from the said roll; and find it unnecessary to give any judgment on the
other points of the cause, and decern.” . . . . . g
And, upon advising a reclaiming petition, with answers, they, by a great.
majority, adhered to this interlocutor. ºf
For the Petitioner, Lord Advocate Hope, Robertson, Boyle. Agent, 4. Abercromby, W. S.
For the Respondent, Erikine, Campbell, H. Erikine, Agent, Ro. Hiſ/, W. S.
Clerk, Home, - -
3. Fac. Col. No 54. p. II2,.
No 2 18.
294 MEMBER or PARLIAMENT
DIV, V,
No 2 I 9.
No 22d.
A person be-
ing enrolled
on a super lori-
ty, which
with his lands
he acquired
from the pa-
tron of a hos-
pital, it was
objected, that
the act vest-
ing in patrons
the right of
entering heirs
in lands held
of prebends,
&c. did not
extend to hos-
pitals. No
person ap-r
pearing to
claim the su-
periority, the
Lords thought
the objection
jæs tertii to
the freehold-
CIS •
-
* . . S. E. C. T. III. .
Powers of the Court of Freeholders.
1745. February 6. -
Monro of Teananich against MACKENZIE of Cromarty.
HUGH Monro of Teananich and others, gave in a complaint against Mac-
kenzie of Cromarty and others, for turning them off the roll of electors of the
county of Ross at Michaelmas 1744, when they were summoned before the
Lords of Session, to shew cause why they ought not to be expunged in virtue
of the late statute. - -
THE LORDs found the act to be a contempt, and decerned the complainers
to be considered as standing on the roll, till the petition against them should be
determined, and the defenders to pay L. Io Sterling as the expense of the
complaint. -
Fol. Dic. v. 3. p. 430. D. Falconer, v. I. p. 66.
- - -
- &
1745. February 26. Sir PATRICK DUNBAR against BUDGE of Toftingale.
JAMEs BUDGE of Toftingale standing on the roll of freeholders for the county
of Caithness, an objection was made to his title, that part of the lands which
made up his valuation, had been held of the hospital of St Magnus, from the
patron whereof Mr Budge had acquired the patronage, in so far as concerned
these lands, as he had the superiority of the lands themselves, and was infeft
therein by charter under the Great Seal, the terms whereof were, after grant-
ing the lands: “Una cum advocatione, donatione et jure patronatus hospitali
‘tatis hospitii de Sancto Magno in Caithness, et hoc solummodo in quantum
‘ spectat, vel extendi possit ad praedict. terras, aliaque supra mentionat, quae
‘ olim ad dictam hospitalem pertinuerunt. Quod quidem jus patronatus dicti
... hospitalitatis hospitii Sancti Magni, et jus superioritatis terrarum aliorumque
‘ supra script. virtute ejusdem, secundum leges et acta Parliamenti in Scotia a
‘ tempore reformationis facta et statuta, ab ante hereditarie pertinuerunt ad
* Georgium Sinclair de Ulbster, et per eum ejusque procuratores legitime con-
‘ stitutos, virtute patentium procuratoriae resignationis literarum in dispositione
• per eum concepta contentarum, de data tertio die Januarii 1740, debite et le-
‘gitime resignata fuerunt, cum omni jure et interesse, quod dict. Georgius
• Sinclair habuit, vel praetendere potuit, in manibus dict, domini capitalis bar.
• ronis et remanentium dict. Scaccarii baronum, et potestatem et commissionem
* resignationis terrarum, jurium patronatus, aliorumque in Scotia de nobis ten-
SECT. 3. MEMBER or PARLIAMENT. 295
\;
• torum recipiendi, et desuper nova infeofamenta concedendi, a nobis haben-
“tium, tanquam in manibus nostris immediati legitimi superioris earundem, in
‘ favorem, proque infeofamento dict. terrarum et juris patronatus dict. hospita-
‘lis hospitii, in quantum ad easdem spectat,’ &c.
Objected ; Mr Budge's right to the superiority of these lands, depends on the
truth of the proposition laid down in the charter, that the superiority by law
belonged to the patron, which fails in two respects ; for, firſt, The 54th act,
Parl. 1661, on which this is pretended to be founded, does not relate to hospi-
tals; and, 2dly, This statute only provides, That the vassals of benefices, who
were put to great inconveniencies by not knowing their superiors, might take
infeftment from the patrons, but did not divest the true titulars of their right.
Anſwered; The patronage of this hospital appears as early as the year 1540,
in the persons of the Earls of Caithness, who probably founded it to be holden
of themselves, reserving the patronage. *
In 1560, a feu of the lands in question was granted by the master of the hos-
pital, which coming into the person of Toftingale, he was pursued by the pa-
tron as superior, in virtue of the act 1661, in a reduction and improbation,
wherein the title was sustained, and he obliged to take a day ; and on this he
was advised to purchase the superiority of his own lands, which he did, and is
infeft under the Great Seal. - * *
The act of Parliament ought to be interpreted in the most beneficial manner
to patrons taking up the superiority in virtue thereof, as it interferes with the
right of no third party ; and it would be absurd for the vassals to hold their
lands of them, if they did not hold them themselves. If the patron is not su-.
perior, nobody is ; for the titulars are no longer; all that is reserved to them.
being the profits and emoluments, which may easily be separated from the
right, as in church-lands. -
THE LORDs considered that the claimant was infeft under the Great Seal, and
nobody appeared, who, as master of the hospital, or otherwise, might dispute
the superiority with him; and therefore thought the freeholders had no interest
to contest his title to his estate.
THE LORDs repelled the objection.
Reporter, Lord Minto. Act. Ferguſon. Alt. W. Grant.
- Fol. Dic. v. 3. p. 430. D. Falcoher, v. 1. p. 86.
2. grº- -- - * * -- .
1750. june 20. . . . .
SINCLAIR of Southdun against SUTHERLAND of Forse.
DEBATED, but not determined, whether a meeting of freeholders can over-
turn the proceedings of a former meeting—See APPENDIx.
Fol. Dic. v. 3. p. 43°- -
No 22d,
No 22 Is.
296 MEMBER of PARLIAMENT. Div. V.
* 1760. February 5. . *
No 222. CAMPBELL of Shawfield and GRAHAM of Gartmore againſt MUTR of Caldwall. '
Found that it is jus tertii to a meeting of freeholders to object to the title of
a claimant, upon the footing that his auther was barred from selling by an en-
tail. ~.
Fol. Dic. v. 3. p. 430. Fac. Col.
*** This case is No 3. p. 7783, voce JUs TERTII.
*º ºn-
1766. January 17. M'LEOD againſt GoRDON.
O 22 2.
N 3 M'Leod of Cadboll stood enrolled as a freeholder of Cromarty upon his
& whole estate valued at L. 1361 : Ios. Having got a division of his valuation, he
granted a feu-right of the whole; obtained a charter of resignation from the
Crown; granted wadsets of some parts of his superiority, and conveyances of
other parts of it to his friends in liferent and himself in fee; the lands, of
which he thus retained the fee, extending to L. 502 : 6 : 4d. of valued rent.
This does not appear to have been proved to the freeholders, who, on objec-
tions having been duly lodged, struck him off the roll at their Michaelmas
meeting. The Court of Session, upon a complaint, ordained him to be re-
placed as fiar of the lands contained in his titles.—See APPENDIx.
Fol. Dic. v. 3. p. 431.
*N.
. sº *
*
1767. january 23. RANKINE and IRVINE against RAMSAY and Colvil.
No 224.
A MEETING of freeholders refused to take under consideration an objection
lodged two months before Michaelmas, in respect it was not signed, nor did it
mention by whom it was given in, or in whose name. Upon a complaint,
the LoRDs reversed the judgment, as having no foundation in the statutes.—
See APPENDIX.
Fol. Dic. v. 3. p. 431.
1767. january 23. i
No 225. RoBERT RANKINE of Colden against ALLAN RAMSAY of Kinkell.
Freeholders
cannot alter
the order of AT Michaelmas head-court for the shire of Kinross, in October 1766, the .
the roll. only freeholders present were, Mr Ramsay of Kinkell, and Mr Rankine of
SECT. 3. MEMBER of PARLIAMENT. &
297
Colden; when Mr Ramsay, standing first on the roll, was, by his own casting
vote, elected preses; and, alleging that Mr Rankine's name had, at a former
meeting, been improperly placed in the roll before Colonel Irvine, Mr Ramsay
proposed that the roll should be altered, and Colonel Irvine placed before Mr
Rankine; and, “Mr Rankine declining to vote, Mr Ramsay, as preses, ordered
No 2 25,
the clerk to make up a new roll, in which Colonel Irvine's name was placed be-
fore Mr Rankine; and this roll was signed by Mr Ramsay, as preses, and by
the clerk, and engrossed in the minutes. Mr Rankine applied to the Court,
by summary complaint, praying to be restored to his former place upon the
roll. - - - -
‘In the answers given in for Mr Ramsay, it was objected, That the statute
16th of the late King did not authorise a summary complaint to the Court in
such a case as the present ; and, therefore, the summary complaint was incom-
petent. . . . .
Mr Rankine, to obviate that objection, brought an action of declarator, in
which he called Mr Ramsay and Colonel Irvine, and concluded to have it found .
and declared, that he was entitled to hold the same place in the roll he former-
ly had ; which action was taken up along with the complaint. t
“ THE LORD's ordered Mr Rankine to be restored to his former
ºroll.” -
For M. Rankine, Al. Wish. For Mr Ramsay, Dav. Grame.
...A. E. Fol. Dic. v. 3. p. 432. Fac. Col. No 57, p. 97.
~ *
- mº ºm-
#768. january 2. -
WILLIAM Douglas of Bridgetown against Captain ALEXANDER REID of Logie.
At the Michaelmas head-court for the county of Forfar, in October 1767, a
claim was presented for Captain Reid, for being enrolled in the roll of free-
holders for said county ; and the claim narrated the different titles founded on
by the claimant, and, among others, the general retour of Thomas Stormont
of Kinclune. * * º -- e r
When the claim and claimant's title deeds came to be considered by the free-
holders, the above-mentioned retour was amissing ; upon which it was objected,
That the claimant could not be enrolled, in regard that Thomas Stormont's re-
tour not being produced, which was a necessary part of the claimānt's progress,
there was no proper evidence before the freeholders to show that the claimant
had right to the lands of Kinclune, part of the lands upon which he claimed.
Annivered for Captain Reid; That not being able to be present at the meet-
ing of the freeholders, he had lodged the whole title-deeds, and, among others,
the retour now mentioned, in the hands of the Sheriff-clerk of the county, who
was the notary that took his infeftment on the lands of Kinclune, with orders
~. P p -
º
place on the
No 226.
A claimant
had lodged
his title deeds
with the She-
riff-clerk, in-
cluding a
retour, by
which they
were con-
nected.
The Sheriff.
clerk had
mislaid this
retour at the
meeting of
freeholders,
but acknow-
ledged he had
had it that
morning.
The objection .
of the want of
298 ° MEMBER or PARLIAMENT. DIV. V.
No 226.
this deed was
sustained in
the Court of
Session, but
their judg-
In ent was
reversed in
the House of
Lords. -
to lay his claim and titles before the meeting of freeholders. And the Sheriff.
clerk, who had been elected clerk to the freeholders' meeting, acknowledged, in
presence of the freeholders, that the retour was lodged with him, and that he
had it in his hand the morning of that meeting, and imagined he had brought
it into court with him, although he could not then find it.
The majority of the freeholders were of opinion, that the objection ought
to be repelled ; and Captain Reid was accordingly added to the roll.
Mr Douglas complained of this judgment of the freeholders to the Court of
Session, and pleaded, That, by the statute of the 16th of George II. it was ex-
pressly required that every claimant should produce the titles and vouchers of
his qualification to the freeholders ; and as, in the present case, Captain Reid
had not produced the retour he founded on, which was a most material part of
his title-deeds, as, without it, he could not connect his sasine with the precept
on which it proceeded, the charter and precept of Sasine, on which the claim-
ant was infeft, not being conceived in favours of the claimant's author Thomas
Stormont, but in favour of his father Alexander Stormont, so that Thomas
Stormont could not have taken infeftment, in virtue of the precept contained
in that charter, without making up his titles by a service; and as he could not
have taken infeftment, so neither could he convey or assign that precept to
another, for the purpose of his being infeft. The retour therefore was a ne-
cessary mid-couple for connecting the claimant's sasine with the precept on
which it proceeded, as without it the sasine would have proceeded without a
warrant, and the retour not being produced, Captain Reid the claimant could
... not be considered as having any title to these lands.
Anſwered for Captain Reid : That he lodged his whole title-deeds with the
Sheriff-clerk of the county, to be produced to the freeholders, not being able
to be present himself, all of which were accordingly produced to the freeholders,
this retour excepted, which the Sheriff-clerk acknowledged he had in his cus-
tody the morning of the meeting; that this retour not being produced, could
not be fatal to his claim, as it was no more than a link in the title, to give right
to the precept of sasine contained in the charter; that, in the present case, the
disposition from Thomas Stormont, in favours of the claimant, proceeds upon a
recital of the retour in question, and mentions, that it was delivered to the
claimant; and which disposition, with the charter and sasine, in which last the
retour is likewise recited, being all produced to the freeholders, clearly instruct-
ed the claimant's right to the lands; and, as it was impossible the want of the
retour could vary or alter the terms of the right, so its not being instantly to
be found in the court of freeholders, could be no solid objection to the claim-
ant's enrolment, more especially, as an extract of the retour from Chancery is
now produced in process.
“THE LORDs sustained the objection, That Thomas Stormont's retour, one
of the title-deeds mentioned in the claim, and a necessary part of the respon-
dent's progress, was not produced to the meeting of freeholders; and find that
"SECT. 3. MEMBER or PARLIAMENT. 2.99
the feeholder. did wrong, in admitting Captain Alexander Reid upon the roll
- g - !,3
& Słº a rº 5s * . }{i : Y → f, O iſ: Sºli (i.
of freeholders, and ordained the Sheriff-clerk to expunge his name from sai
roll.” - -- • ‘
N. B. This judgment was reversed upon an appeal.
For Douglas, John Swinton, junior & Andrew Croſbie, &c.
For Captain Reid, Alex. Lockhart, & 4. Elphinstone, &c. *s-, , , ,- e *
A. E. - Fac, Col. No p. 126.
—---sºmºsºs º-T
*
1773. june 24.
. e TºT s, { } {vizyºv,
Colonel CHARLEs CAMPBELL of Barbreck against JAMES M*NLIL of Kilmory,
Ol . - . jº - - •or-l ! ~! ---e. { i ! . . Sky: f_x
and JAMEs M'Conochle of Ambriesbeg, two of the Freeholders of the Shire
of Bute.
. ..- - "º e * e 2nvolie, ri rig ºn C{*-
CoLoREL CAMPBELL of Barbreck lodged a claim for being enrolled as a fre
O 3 *. tº H 1 º Æ ) Te
lder in the county of Bute at Michaelmas 1772. It happened that no º
#1Olćlèſ i at: . - >+, in r: ./? a cº -r, W/; % ſº
+ Two of the freeholders attended at the hour of meeting, Viz. Mesār; M'Neil
tº all UV -
... * O p 2. g *s ge
nd M'Conochie, who p º *ā- * ~p f : shifted off
a. im was moved to them by the clerk to the meeting, they shifted off its
C: & 11 Il -
e ... and proceeded to make up their minutes, as if no such claim had
*; t º the preses was signing these minutes, the claimant's bro-
- iº was himself a freeholder, came º the nº ** º
that they should take the claim under their consideration. º º i º mºn .
refused, upon the ground, that their business was concluded, and the meeting
dissolved. . plaint. charging, that the pretences on
Colonel Campbell presented a complaint, charging,
which his claim was not taken notice of, at the Michaelmas meeting, were
Will - • , - ---
, ſº ivolous; and that no solid objection was so much as pretended to lie
entirely fivo i. UlS 3 hich were also then produced. And the minutes of the
against his titles, Which WC so wº g - hav r • * Ther
ag ting having been produced, as to this particular, they run thus: “Then the
IIlee * -
‘ clerk informed th
“ capacity of sheriff. d upon t
{ to his º:º º court-house for Colonel Campbell, or any per-
* * º ty him, tC) appear and insist in his said claim, no º
was made; and none other compearing to desire to be * #. in. | oll
‘ apparent heirs or otherwise, the meeting found, and hereby find,
clerk, in name of Colonel Charles Campbell of Barbreck,
‘ stands as before.' - ... aid - - fusing to enrol the
The LoRDs found, that the respondents did wrong in refusing
• - * --~~3 ** - - g - * !-, - º
complainer, and ordered his name to be added to the roll; and found the res
pondents liable in costs.
3- Clerk, Tait.
Alt. Waller Campbell. . -
º Fic. Col. No 75, p. 183.
Fol. Dic. v. 3. p. 432.
- P. p 2
Act. Ilay Campbell.
- rº Sr.]l’c
roceeded to business; and, although Colonel Campbell's
e meeting, that a claim had been lodged with him, in his
he roll of freeholders; and intimation having
No 226.
No 227.
The only two
freeholders
, who attended
a Michaelmas
meeting evad-
ed taking
cognizance
of a claim for
enrolment,
which was
duly lodged,
and moved to
them by the
clerk, on the
pretence,
that neither
the claimant,
Ii O iſ any per-
son for him,
appeared to
Support his
claim.
A motion
made to them.
by another,
freeholder,
while they
were still in
the court-
room, to take
the claim
under consi. .
deration, was
held by them.
to be too late.
Found to
have done
wrong, aſid
the claimant
ordered to be
added to the
roll.
3oo MEMBER or PARLIAMENT. Div. V.
No 228.
Freeholders
have no title
nor interest
to insist in an
action of dé- .
clarator, that
certain sa- .
sines taken in
favour of
others, in the
view of being
claimed upon
as freehold
rights, were
not properly
registered,
before actual
enrolment
thereon ; but
their title to
challenge
such regis-
tration is
competent
after enrol-
Iſle ilt,
I'774. july 8. - -
JAMEs, EARL FIFE, Mr ARTHUR DUFF of Ortoun, Advocate, and Captain.
DUNGAN URQUHART of Burdsyards, against Mr CoSMO GORDON, Advocate,
Lieutenant FRANCIS SKELLY, ALEXANDER GoRDON of Aberdour, and JoHN
GoRDON, Sheriff-substitute of Elgin. - .
THE Earl Fife, &c. standing upon the roll of freeholders for the county.
of Elgin, in consequence of an investigation they had caused be made at the
sasine-office of that county; brought an action of declarator before this Court,
in which they called as defenders the four gentlemen above named, to whom
the Duke of Gordon had granted freehold qualifications in that county, as also
the keeper of the register of sasines of the said county, concluding to have it
found and declared, that certain Sasines in favour of the defenders, whereof the
keeper of the register had given out extracts, as recorded upon the 30th Sep-
tember 1772, in the roll of freeholders for the county of Elgin, were not pre-
sented for registration, nor recorded in the particular register of Sasines kept for
this county, upon the 30th September 1772, in manner required by law; and
that they should only be held as registered from the 3d October 1772.
The defence made against this action was an objection to the title, viz, that
the pursuers, qua freeholders of the county, have no right to inquire into the
date of registration of any sasine which might happen to be taken within the
county, nor title or interest to challenge the registration of these sasines, before
any claim for enrolment was founded upon it. The present, action was there-
fore premature; it was also unprecedented; and were this to be allowed in
politics, it could not be refused in any other question of civil right, whereby
doubtful and speculative points, which possibly would never exist, might be
made the foundation of so many declaratory actions. And accordingly the
Court dismissed the action, in respect the pursuers did not appear to have any,
title to insist hoc statu, by an interlocutor July 13, 1773.
The pursuers preferred a second petition, praying the Court either to alter
their former interlocutor, to sustain the titles of the pursuers, and to find and
declare in terms of the libel; or to ordain the defenders to confess or deny,
whether they have not already signed claims, and given orders for lodging the
same, and, in case of their silence, to hold them as confessed; or, in case of
their denying, to allow the pursuers to prove it; and, if the fact shall be prov-
ed, to sustain the title, and decern in the conclusions of the libel; and, at any,
rate, in order to prevent a wrong without a remed y, to supersede advising this
petition till the 4th of August next, when the fact will be undoubtedly ascer.
tained one way or other.
This petition being moved 30th July, was refused without answers.
•
SECT. 3. MEMBER or PARLIAMENT. 3o I
Next day, a third petition was moved, stating that matters were not in ſtatu
quo; for that the defenders have actually lodged claims with the sheriff-clerk
upon these very sasines, for an enrolment at Michaelmas next, as is instructed
by extracts of said claims, therewith produced; and, therefore, praying a remit
to the Lord Ordinary, to call the cause this session, and to hear counsel upon
the aforesaid objections to the defenders' infeftments. This petition was order-
ed to be answered. -
Answered ; The lodging of the claims cannot influence the question in the
smallest degree.
When the action was brought, the pursuers had neither title nor interest, and
so the Court has found. Nothing that was afterwards done, on the part of the
respondents, can revive an action from which they stood already absolved by
so many consecutive final interlocutors : Therefore this petition is incompetent.
But, allowing it were competent, the case stands precisely where it did.
Parties ought not to be dragged into process to dispute speculative questions,
which, for any thing known, may never exist. It is true the respondents have
lodged claims, to be insisted in or not, as they shall afterwards be advised.
When the former interlocutors were pronounced, the pursuers were equally
uncertain, whether claims upon these sasines would be lodged with the sheriff.
clerk, or, supposing them to be lodged, whether they would be prosecuted.
They are now lodged; but it is still uncertain whether they will ever be pro-
secuted; whereas the pursuers insist, that they shall now litigate and dispute.
this matter, to prevent the possibility of any enrolment upon these sasines. .
Were this to be allowed, it would be a precedent for as many declarators
respecting future contingencies, upon the bare possibility that, if such and such
things shall happen, such and such questions may thereupon arise, which,
therefore, ought to be now judged and determined, in order to prevent after
disputes. Every fact and every point of law, from which it is possible that a
right might accrue in some future contingent event, might, by the same rule,
be made the foundation of processes of this kind, pravento termino.
In fine, though the respondents have lodged a claim with the sheriff-clerk,
it cannot be known whether they will present the same to the meeting of free-
holders, or claim any enrolment thereon. If they do, the petitioners will not
fail to object; and, if the majority of the roll is upon their side, the objection
will most certainly be sustained ; such, at least, has been their uniform practice
hitherto. And, on the other hand, if the objection shall not be sustained, the
statute law has prescribed the mode of redress, viz. by summary complaint to
this Court; and, if any proofs are requisite, which could not be obtained in the
meeting of freeholders, they will not be precluded therefrom when the cause is
.**
brought before this Court.
This petition was also refused.
2
In fact, the gentlemen did afterwards insist in their claims at Michaelmas,
and the freeholders refused to admit them on the roll, in respect of the above-
-**
No 228.
No 228.
No 229.
No 23O.
Freeholders
*
... => *
- 4
sº MEMBER or PARLIAMENT. Div. V.
and other objections; and as it was apprehended that the claimants would not
rest satisfied with the judgment of the freeholders, and might object that the
freeholders were incompetent to try the question, whether the Sasines were pro-
perly registered or not, the pursuers brought a new action of declarator in this
Court against the claimants, upen the acts of Parliament 1693 and 1696, with
regard to the registration of satines, and with the same conclusions as before, at
least in so far as respected the defenders being entitled to be enrolled as at
Michaelmas 1773. - - - - -
The Court, by an interlocutor, June 17, 1774, sustained the pursuers title
to insist in this action, but superseded determining the merits of the cause, till
the proof in the case of Cromarty was laid before them.’ And thereafter, (July
8. 1774), upon advising mutual memorials, and abstract of the proof in the
case of Cromarty, “in respect of the practice, which has been proved, in that
case, to have prevailed in many counties in Scotland, and of the great and
general mischief that might insue, if the objections now pleaded were sustained,
repelled the objection to the registration of the sasines in question, and assoilzied
the defenders from the present action.’ See APPENDIX.
Act, Macqueen, Ilay Campbell, j. Boswell. Alt. Dean of Faculty. clerk, Tait.
- Fol. Dic. v. 3. p. 430. Fac. Col. No 124. p. 334.
—mºrº - Sºlºm--
1777. June 17. Sir RoßERT ABERCROMEY against ALEwood and Others.
WHEN an objection is palpable, and can be established under his own or his
author's hand, without any farther investigation, they hold it competent to
reject the claim. Thus, several quálifications, created by Earl Fife on certain
fishings in the river Doveran, were rejected, first by the freeholders, and after-
wards by the Court of Session, in respect that it appeared, from a deed under
the late Earl's band, that these fishings were held of the royal burgh of Banff,
and not of the Crown. See APPENDIX. See No IIo. ſupra. -
A similar judgment was pronounced in the course of the same Session, 1777,
Alexander Pierie contra Hay of Mordington, see APPENDIx. ~"
... ." - Fol. Dic. v. 3. p. 43r. Wight, p. 223.
-- - - —-mºm-- - ... *
I 779. February I7. JoHN BURN against WILLIAM ADAM.
AT the Michaelmas head court for the county of Kinross 1778, John Burn
claimed to be enrolled as a freeholder on the following titles; Imo, Charter of
sale and resignation under the great seal of the lands and barony of Kinross,
and others, in favour of George Graeme, Esq.; 2do, A contract of wadset, by
which Mr Graeme disponed to the claimant certain parts of the lands contained
in the charter, and conveyed the said charter and precept of sasine to him, so
have no right
to call for the
\varrant of
the charter
on which the
infeftment
proceeds, or
to object that
**.
SECT, 3. *. MEMBER OF PARLIAMENT. - 333
*
far as respected the lands mentioned in the contract; 3tio, Instrument of sasine
proceeding on the charter and contract. Along with these titles, the usual
certificate was produced, that the lands disponed stood valued in the cess-roll
at or above L. 4co valued rent. - -
Objections were made to the claimant's titles by Mr Adam, one of the free-
holders, and it was carried on a vote not to enrol. The claimant complained
to the Court of Session. - -
In the answers to this complaint, the following objection, which had not
been made at the meeting, was stated to the claimant’s qualification. The
charter of the estate of Kinross, and, in particular, that part of it disponed to
the claimant, is disconform to the signature on which it proceeded, in this
respect, that the charter contains different parcels of land said to be part of
the barony of Kinross, which are not specified in the signature, as compre-
hended in this barony. The charter, therefore, as being disconform to its
warrant, is void, and consequently cannot avail the complainer in support of
his claim.
The claimant contended, in the first place, That the court was not compe-
tent to judge of this objection, because it had not been proposed in the meet-
ing of freeholders, and was only stated in the proceedings upon the summary.
complaint.—Upon this point the same arguments were used by the parties, as
in a case where it had formerly occurred, Stewart contra Dalrymple, July 28.
1761, No 18. ſupra, in which the court had sustained their jurisdiction by a
judgment affirmed in the House of Lords. It was further -
Pleaded for the complainer; That the court of freeholders were not compe-
tent to judge of this objection, though it had been stated at the meeting. -
A charter from the Crown, of lands of such value as the law requires, and
infeftment on it, are the only titles requisite to produce to the meeting of free-
holders in order to be enrolled. The jurisdiction of the freeholders goes no
further than to see the proper evidence, that the claimant has those feudal
titles vested in him.—They may judge of such objections to the validity of the
titles as appear on the face of them ; but they have no right to investigate the
grounds and warrants of the charter, in order to determine upon its validity.—
They cannot even oblige the claimant to produce them. *
Mr Graeme's charter from the Crown is ex facie perfectly complete, contain-
ing every parcel of land upon which the complainer founds his qualification.
The objection now offered does not appear on the face of the charter, but is
gathered from one of its warrants. It is therefore extrinsic, and cannot be
judged of by the freeholders.-The proceedings of freeholders in taking cogniz-
ance of extrinsic objections have been often over-ruled by the Court; Sir Patrick
Dunbar against Budge, 26th February 1745, No-220. supra; Campbell of
Shawfield against Muir, 5th February 1760, No 8. p. 7783. ; Waiter Stewart
against David Dalrymple, 28th July 1761, No 18. ſupra.—The Court.
No 230.
it is not con-
form to the
signature, or
to enter into
a discussion
of a claim
as to pro-
gress.
3-4 MEMBER or PARLIAMENT. Drv. v.
TA an
No 230.
have decided on the same principles in a variety of cases where objections were
made to decrees of division, produced in evidence of the claimant's valuation:
—Such objections as appear ex facie of the decree, may be considered by the
freeholders; but they cannot enter on any extrinsic objection drawn from the
grounds of the decree; Galbreath against Cunningham, 17th January 1755,
No 51. ſupra; Forrester against Preston, 18th February 1755, No 75.
ſupra ; Wemyss against M'Kay, 28th February 1759, see APPENDIx ;
Campbell against Muir, 5th February 1760, No 3. p. 7783.
Anſwered for the respondent ; It may be admitted, that the freeholders are
not entitled to investigate the grounds of the claimant's charter, in order to
determine, whether the right of property belongs to him, or to a third party.
The claimant, by possessing under his charter and infeftment, is held in law
to be the proprietor; and the freeholders have no jurisdiction to inquire any
farther.—His right of property under these titles can only be challenged by a
person claiming a right in himself to the lands. If the party entitled to bring
the challenge does not choose to insist in it, but allows the claimant to conti-
nue in possession, it is fur tertii for the freeholders, or any other person, to ob-
ject. This was the only point determined by the Court in the decisions found-
ed on by the complainer.
But, where the objection does not depend on a third party having a prefer-,
able right to the claimant, but on the validity of the titles themselves, and they
are challenged as void and null, the objection is not jus tertii to the freeholders.
If they have any right to see that title-deeds shall be produced at all, they
must likewise be competent to examine, whether these deeds are false, or sub-
ject to any nullity; and, for this purpose, to admit of every kind of evidence,
whether intrinsic or not. .
• Objections perfectly clear may lie to the verity of the titles, though not ap-
pearing on the face of them. A charter cannot be considered as proceeding
from the Crown, if it has not the authority of a signature.—The Writing is null
and void, as much as if it were forged; consequently the freeholders would be
competent to judge of the objection, though it might require extrinsic evidence
to support it. There is no distinction betwixt the case where a charter proceeds,
without the authority of any signature, and the present case, where the signature
does not authorise the charter; and the subjects conveyed by the latter are not
mentioned in the former. —The freeholders, therefore, were competent to have
judged of this objection. * * * .
The merits of the objection itself were argued by the parties, but received no
judgment, the Court being of opinion, that the freeholders were not competent
to judge of the objection. -
The judgment was, ‘ repel the objections against the said John Burn his being
enrolled in the roll of freeholders for the said county of Kinross; and find, that
the freeholders of said county did wrong in refusing to enrol the said J ohn
\
• *. .
&
SECT. 3. MEMBER of PARLIAMENT. 395
Burn in the said roll; and therefore grant warrant to, and ordain the sheriff. No 230.
clerk of said county to add his name to the said roll.'
Act. Rae, Al. Murray., Alt. Croſbie.
Fol. Dic. v. 3. p. 431. Fac. Col. No 70. p. 132.
...—- ---sºm- g
*.
1790. February 23. WILLIAM NISBET againſt CHARLES HoPE.
No 231.
Wirriam NISBET claimed to be enrolled among the freeholders of the county In questions
of Linlithgow, in the right of his wife, whose estate, acquired by singular titles, ...”
freehold
and partly consisting of a right of superiority alone, was rated in the cess-books ºf .
* A extract of a
3t L. 406 : 6:8. charter from
In evidence of his wife's right to the lands, Mr Nisbet produced an extract tº
from the records of Chancery of a charter in her favour, with an instrument of not admitte"
sasine, in which it was mentioned, that the wife's attorney had produced, as
the warrant of her infeftment, “ quantum resignationis chartam Sub Sigiſlo per
• unionis tractatum custodiend, et in Scotia loco et vice magni sigilli ejusdem
* utend. ordinat. præceptum sašinae subinsertum in se continen. de data,’ &c.
Mr Hope, a freeholder in the county, objected to this claim, Imo, That the
extract from the records of Chancery was not sufficient ; and, 2do, That a hus-
band could not be enrolled in consequence of a right of Superiority belonging
to his wife. The freeholders refused to enrol. Mr Nisbet therefore complain-
ed to the Court of Session, and
Pleaded ; An extract from any legal record, is equally respected with the
principal writing itself, where its authenticity is not called in question; and
therefore, the extract from the Chancery here produced, ought to have been
sustained as full evidence of the charter, which was duly registered there. It
may perhaps be said, that being only a copy of a charter, as it was prepared for
passing the Great Seal, it does not appear from thence that the Great Seal was
actually affixed to it. This objection, however, seems to be fully, removed by
the instrument of sasine, from which it appears, that the charter had been com-
pleted in the usual manner. *
The other objection seems to be equally erroneous. It is declared by the
statute of 1681, that husbands shall be entitled to vote for the freel:olds of their
wives; and thus, whatever would be the foundation of a right to vote if belong-
ing to the husband himself, must be equaliy available to him when belonging
to his wife. And although, by the subsequent enactment of 12:h Anne, it was
provided, ‘That no husbands should vote at any ensuing election, by virtue of
their wives' infeſtments, who are not heiresses, or who have not right to the
“ property of the lands on account whereof such vote shall be claimed;’ this
was thrown in merely to prevent the creation of occasional votes on the eve of
3 Il election, in the shape of liferents or redeemable rights, granted to wives for
Q k
306 MEMBER or PARLIAMENT. Div. v.
No 23 I.
No 232 Ö
the purpose of enabling their husbands to act as freeholders. Wight on Elec.
tions, p. 239. - -
Anſwered ; As the seals in grants from the Crown, are what the subscription
of an individual is in conveyances obtained from a subject, it was wisely pro-
vided by act 1672, c. 7. in order to prevent an improper or incautious use of
them, that a record of all writings should be made up preparatory to their
being authenticated in this manner. It may therefore be admitted, that an ex-
tract from this record is complete evidence of the charter or other writing hav-
ing been prepared for passing the seals. This, however, is no evidence of the
Great Seal having been affixed; and, until this be done, a Crown-charter is no
more than an inchoated deed, which may be, and often is allowed to remaint
for ever in the same state. As to the instrument of sasine, it is, merely the
assertion of a notary, to which, unless it is supported by the relative writings,
no regard can be paid. - . -
2dly, A husband, since the enactment of 12th Anne, cannot be enrolled in
virtue of his wife's infeftment, but in two cases; 1ſt, Where she is an heiress;
and, 2dly, Where she has the property of the freehold. In this enactment, as
well as in feudal language, property is distinguished from superiority. Thus it
is understood in the statute of 1681, where it is declared, that only ‘ those shall
“ have right to vote, who are publicly infeft in property or superiority.’ And
indeed, as those precautions, which have been used for preventing the undue
multiplication of freehold qualifications, do not in general extend to the case of
husband's claiming enrolment in right of their wives, such a limitation seems
to be absolutely necessary. . ; * - -
everal of the Judges expressed an opinion, that both objections were well
founded. But the former being the preliminary one, it appeared to be chiefly
on this ground, that, after advising the petition and complaint for Mr Nisbet,
which was followed with answers, replies, and duplies,
THE LORD's dismissed the complaint.
Act. IVigàt. Alt. Williamson. Clerk, cºlour.
Ç. - * Fol. Dic. v. 3. p. 43r. Fac. Col. No 118, p. 227.
—m---
1790, LORD ALVA against FREEHOLDERS of STIRLINGsinkr.
IN the case of Lord Alva, which occurred at the election 1790, for Stirling-
shire, the same point occurred as in the case of Nisbet, No 231. supra;
but it became unnecessary to decide upon it. His Lordship's charter was not
lost, but in the hands of a freeholder in the opposite interest, and who refused
to deliver it up. His Lordship, however, produced an extract of it from Chan-
cery, and a notorial copy of an entry in the books of the keeper of the Great
Seal, bearing the fees of it to have been paid; also referred to the minutes of .
*
SECT. 3. MEMBER or PARTIAMENT. 3C7
enrolment of a liferent-voter in 1766, which bore production of that very char-
ter; and even an extract of his Lordship's sasine, produced by his opponent in
support of another objection, certified, that a charter, complete in all its parts,
was exhibited at taking the infeftment. This was as strong a case as could well
be figured, as the verity of the sasine could hardly be questioned by him who
had produced it in support of an objection. Still, however, as law requires a
charter to be produced as a claimant's title before the freeholders, none of
these adminicles, or extraneous proofs, which have been mentioned, will supply
its place, however decisive they might, and certainly would be, in an action of
proving the tenor *. See APPENDIX. a
Fol. Dic. v. 3. p. 431. Supplement to Wight, p. 65.
1790. December 18, SIBRALD against Douglas and KERR, •
*
MR SIBBALD had purchased, at a judicial sale, lands which were there de-.
scribed as holding of the Crown. Having claimed on them at the election-
meeting 1790, it was objected, that the lands held of the family of Lothian, and
that the Crown-charter had therefore been improperly obtained. Two freehold-
ers present, substitutes of entail to the superior, declared that they meant to
bring a reduction of the charter upon that ground; and one of these substitutes,
and another freeholder likewise present, declared that it consisted with their
knowledge, that the lands had till very lately been held of that family. A
majority of freeholders, upon this evidence, rejected the claim ; but the Court
of Session, on advising a complaint, with answers, found they had done wrong,
and gave expenses to Mr Sibbald, though the summons of reduction was raised
and executed before advising the complaint. See APPENDIX.
Fol. Dic. v. 3. p. 43 I, Supplement to Wight, p. 62.
* There is one inconvenience resulting from the doctrine, that an extract of a charter cannot
supply the place of the original. In consequence of the statute 1672, there can be no proper
extract taken from the office of the Great Seal, where the ultimate step is taken, as it is not a
proper place of record. The books are never given up by the keepers or their representatives to
their successors in office, nor transmitted to the general register-house, under the charge of the
Lord Register and his deputies, along with the other public records of the kingdom, and the
records of Chancery in particular; from which extracts are daily taken, signed by a principal
Clerk of Session. It must often be very difficult, therefore, to get at the books of the Great
Seal, at least if far back. Indeed it is said, that no other books are kept by those officers, ex-
cept a minute-book, and copies of the charters as sent by the writers to the signet, along with
the principal charters for sealing. In these circumstances, there can be no remedy but that of
proving the tenor. This evil seems to require a cure, by appointing a proper record at the
Great Seal-office, or otherwise.
Q q 2.
No 232.
No 233.
308 MEMBER or PARLIAMENT. DIV. V.
No 234.
Where an ob-
jection is pal-
pable, and
can be veri-
fied instanter
by documents
produced, its
is incumbent
on the free-
holders to re-
ject the claim.
Thus it is a
competent
objection in a
court of free-
holders, that
the sasine of
a claimant
proceeds on
an exhausted
precept,
1796. February 26. - !
. JAMES, LINDSAY CARNEGIE against GEORGE Robertson Scott.
Forfarshire, which afford a freehold qualification. . - - -
It having been discovered, after the death of the notary who took the infeft-
ment, that he had omitted to sign the 2d, 4th, 6th, and 8th pages of the sa-
sine, (which consisted in all of 14,) she, in 1789, took infeftment a second
time, on the same precept, and a second instrument of Sasine was made out.
Both sasines were duly recorded. . . . . .
Mr George Robertson having married Miss Scott, he claimed to be put on
the roll of freeholders, as her husband, and produced, as his title, the charter
above mentioned and Sasine 1789. - • - *
Mr Lindsay Carnagie objected, that a former sasine having been taken on the
charter, that produced by the claimant was null, as proceeding, upon an €X-
hausted precept. .
The Court of freeholders having repelled the objection, Mr Carnegie pre-
sented a petition and complaint, along with which he produced an extract of
the sasine 1773. - •. - - -
In defence, Mr Robertson Scott -
Pleaded : Imo, The sasine 1789 is ex facie legal and regular; and it is an e-
Miss Isabella Scott was infeft in 1773, upon a Crown charter, in lands in
stablished rule of election law, that freeholders are not entitled to refuse en-
rolment upon any objection, which, like the present, requires extrinsic evidence
to support it ; Wight, p. 222; 26th February 1745, Dunbar, No 220. supra;
5th February 1760, Campbell, &c. against Muir, No 3. p. 7783; 28th July
1761, Stewart, No 18, supra; 9th January 1755, Forrester, No 137.
supra; 17th February 1779, Burn, No 230. supra.
But, 2do, The sasine 1786 is in fact unexceptionable; for, although two va-
lid sasines in fee cannot be taken on the same precept, yet, where the first is
inept, the second will be effectual. Now, the act 1696, c. 15. (which appears
from the act of Sedcºunt, 17th January 1756, to extend to Sasines) directs every
- page to be signed by the notary ; and such accordingly is the invariable prac-
tice.
by him. -
Anſwered; Imo, The objection stated to Mr Scott's enrolment did not require
the aid of extrinsic evidence; for the sasine 1773, being part of the claimant’s
The sasine 1773 was therefore null, four of its pages not being signed
own titles, could not be so considered. Besides, any written evidence by which
a nullity in the title is proved, is competent to be judged of by the freeholders;
and new evidence may even be received in this Court. See Wight, p. 143.
2do, The sasine 1773 is in every respect legal and valid. The act 1696 re-
'gulated the subscription of securities only. The mode in which notaries must
subscribe sasines, was previously settled by 1686, c. 17, which declares it law-
ful to write sasines by way of book, ‘each leaf being signed by the notary and
SECT. I. MEMBER of PARLIAMENT. 309
“witnesses, an enactment which was strictly complied with in the sasine 1773;
and that the statute 1686 is altogether indepen-ſeat of, and was not repealed or
qualified by the act 1696, is clear from the latter only requiring that the wit-
nesses should subscribe the last page of the deed, whereas the former ordains
that the witnesses to a sasine shall sign every page of it; a form which is at
this day indispensable.
The act of sederunt 1756 is inaccurate, in supposing that the act 1696 re-
gulates the subscription of Sasines.
THE &ouRT, on the grounds stated for the complainer, ‘found the respon-
‘’dent was not entitled, in virtue of his titles claimed upon, to be enrolled in
“ the roll of freeholders for the shire of Forfar ; and therefore granted warrant
* to, and ordained the Sheriff-clerk of the said shire to expunge his name from
the said roll.”
6
For the Complainer, Lord Advocate Dundis, Solicitor-General Blair, Geo. Fergusson, Argh. Camp-
bell, jun. Alt. H Erskine, Hay, Mat. Roſs, Ad. Gillies, Geo. Robertſon Scott. Clerk,
Płome,
R. D. Fol. Dic. v. 3. p. 43 I. Fac. Col. No 257. p. 491.
D I V IS I O N VI.
Summary Complaint to the Court of Session.
C
–sººn-
S E C T, I.
Yº..
Who must be called in a Summary Complaint.—Service of a Com-
plaint—To whom Competent.—Within what time Competent.—
Whether a separate Complaint must be preferred by each Complainer.
º
1745. February 13. DICKSON of Kilbucho against Gibson of Boreland.
George Gibson of Boreland standing on the roll of freeholders for the shire
of Tweedale, a complaint was given in against Thomas Gibson of Boreland,
which being ordered to be served, an execution was returned also against Tho-
II] alS.
No 234,
No 235.
A complaint
wās, by mis-
take, served
on Thomas
316 MEMBER or PARLIAMENT. DIV, VI.
No 235.
the son in-
stead of
George the
father. Found
that the fa-
ther could not
be thereby af.
fected.
No 236.
Answers were given in in name of Thomas Gibson younger of Boreland, set-
ing forth, that he was not on the roll, nor claimed to be during his father's life.
The complaint, on seeing the mistake, was executed against George, and
coming to be insisted in, the LORD ORDINARY, I Ith January 1745, on advice
with the LoRDs, found, “That Thomas Gibson of Boreland did not stand on
“ the roll of freeholders for the shiré of Tweedale; and found that George
* Gibson the father not being contained in the complaint, the complainers could
• not be heard to object to the said George why he ought not to stand on the
* roll of freeholders.” . #
A petition was presented, which was ordered to be answered by George, and
answers were given in thereto, in the name of the father and son.
Pleaded for the petitioner, It was only a misnomer, and seeing constabat de
persona, it were unjust on this pretence to continue on the roll a person who
had no right to be there. 4. .*
Anſwered, it was more than a misnomer, a wrong person had been complain-
ed upon, a wrong person summoned, and it was now past time to complain a-
gainst George the father, after the lapse of the time prefixed by the statute;
that the second execution was without a warrant, the order of the Court being
to cite Thomas, against whom the complaint was. ~.
THE LORDS adhered.
Act. Menzies, Alt. Geddes.
Fol. Dic. v. 3. p. 437. D. Falconer, p. 76.
—ºme-
1761. july 28. STEwART againſt DALRYMPLE.
By act of sederunt 15th November 1769, it is ordered, that each petitioner
against the proceedings of freeholders shall present a separate petition for him-.
self, and that each petition shall complain against one defender only, except
where more petitioners or defenders may be necessarily connected. Some time
before this enactment, a petition had been presented in the name of several dif-
ferent complainers, and upon as many different grounds. Objected, It is a ge-
neral rule of law, that different actions cannot be accumulated in the same li-
bel.—THE LORDs repelled the objection, in respect of the practice in similar
$23 SeS.
N. B. Though all the interlocutors on the questions between these parties are
collected at the date of the last of them, the judgment upon this particular ob-
jection must have been prior to the act of sederunt.
Objected to the service of a summary complaint, That instead of extracting
the interlocutor, the complainers had borrowed up the principal interlocutor it-
self, and delivered it to a messenger to be executed. Answered, The principal
^--- 3.
ster, i. MEMBER or PARLIAMENT. 3 II
order has as great authority as an extract; and the method followed in this case
is not unnusual, where the party is at hand. THE LORDs repelled the objec-
tion. + -
Fol. Dic. v. 3. p. 432. §§ 437. Fac. Col.
*.* This case is No 18. Jupra. e'
1762. CARRUTHERs of Denby against FERGusson of Craigdarroch.
A KALENDAR month is from any day in one month to the same nominal day
in the next month. In this case, the Court of Session was of opinion, that a
complaint moved by the Lord President on the 6th of February was within four
No 236.
No 237,
kalendar months of a meeting of the freeholders held upon the 6th of October
preceding. See APPENDIx. , -
. ... ." X- Wight, p. 133.
—º-
1766. January. YoUNG against JoHNSTON-
*
WHERE the minutes of the meeting do not bear by whom an objection was
stated, a person complaining against the judgment of the freeholders must make
all those parties to the complaint who voted for sustaining the objection; and a
misnomer of any one of them will be fatal to the complaint. See APPENDIx.
Fol. Dic. v. 3. p. 437.
*...* See Tenant against Johnston, No 54, p. 3720, voce Execution.
—— -
1767. February 17. GoRpoN of Newhall against Johnston. -
WILLIAM Gordon of Newhall claimed to be enrolled as a freeholder of Cro-
marty; and being refused, complained to the Court of Session upon the statute.
Mr William Johnston was enrolled at the same meeting; and Mr Gordon com- -
plained of his enrolment. Waving the merits, Mr Johnston pleaded, That the
complaint was incompetent, in respect Mr Gordon did not then stand upon the
roll. THE Court appointed an answer upon the merits of the complaint; after
which they took up Mr Gordon's first complaint, and having ordained him to be
inrolled, repelled the preliminary objection, that he was not upon the roll, in
respect of their previous interlocutor, by which his title to be upon the roll was
sustained. See APPENDIX. -
Fol. Dic. v. 3. p. 432.
No. 238.
No 239.
312
MEMBER or PARLIAMENT. Div. VI,
No 24o.
No 24I.
No 242.
A complaint
to the Court
of Session re-
spectinng en-
rolment must
he served a-
gainst all
those who
offered objec-
tions in the
freehodlers’
collit.
Nominal and
fictitious.
I 773. March 3. GoRDON againſt ABERNETHY,
CoMPLAINT was moved in Court, on Saturday 23d January, and was then or-
dered to be served ; but the interlocutor was not written out, nor signed by the
Lord President, till Tuesday the 26th. It was objected, That the complaint
could not proceed, because Monday the 25th was the last day of the four kalen-
dar months. The Lords over-ruled the objection. The act of Parliament on-
ly requires the application to be made to the Court of Session within four
months: It is of no consequence, that, through accident or hurry of business,
the warrant is not signed till after that period.
Fol. Dic. v. 3. p. 432. Fac. Col.
*** This case is No 208. supra.
^.
-sº º ºsm--—
1774. Tebruary 23. TXUNBAR against URQUHART.
A JUDGMENT of the court of freeholders, striking a party off the roll; though
acquiesced in for four-months, may notwithstanding, be made the subject of
complaint to the Court of Session.
Fac. Col.
*** This case is No 198, supra.
—ºmsºmº-
1790. May 15.
Joseph WILLIAMSON againſt JoHN SMITH,
MR WILLIAMSON was enrolled among the freeholders in the county of Perth,
as proprietor of the lands of Dungarthill. These lands in 1788 he sold to the
Duke of Athol. *
Befºre the bargain was concluded, it was proposed by Mr Williamson that
be should retain his freehold-qualification ; but the conveyance made out in fa-
vour of the Duke on 7th February 1789, containing procuratory of resignation
and precept of seisin, was absolute and unconditional. After the Duke had ta-
ken a base infeſtment, he gianted to Mr Williamson, on 1 th August I 789, an
obligation not to take a charter of confirmation from the Crown, nor to execute
the procuratory of resignation during Mr Williamson’s life. This obligation, to
which a penalty of L. Io Sterling was annexed, was immediately inserted in the
register of seisins. g *
At the Michaelmas meeting in October 1789, an objection arising from the
above transaction was stated to Mr Williamson's remaining on the roll, by Mr
Smith and two other freeholders ; and the objection being sustained, Mr Wil-
Szct. 1 . MEMBER of PAR LIAMENT, 3 T 3
liamson complained to the Court of Session; but the complaint was directed a-
gainst Mr Smith alone. - In defence, it was 3.
Pleaded ; By the statute 16th of his late Majesty, which regulates the me-
thod of proceeding in questions respecting freehold-claims, it is provided, that
the Court of Session may grant a warrant for summoning ‘the person or per-
sons, upon whose objection a freeholder has been struck off the roll. The pre-
sent complaint must therefore fall to the ground; only one of the three free-
holders by whom objections were offered having been made a party to it.
Farther, the judgment of the freeholders was evidently well founded. After
the conveyance in favour of the Duke of Athol, the right of the granter became
altogether nominal ; what is reserved being neither a liferent nor a fee, but a
mere tolerance to vote as a freeholder, and this defeasible at any time on pay-
ment of L. 10 Sterling. Such an agreement seems to be wholly incompatible
with the genius of our political law ; 13th February 1745, Gibson, No 235.
Jupra.
Answered ; The argument arising from the method of giving notice of the
complaint is far too critical, and ought not to be listened to for setting aside a
legal right to vote. Nor is the objection to the qualification itself better found."
ed. When the complainer was enrolled, his title was unexceptionable; and al-
though it was at one time in the power of the purchaser from him to put an
ênd to it, the agreement which was afterwards made brought back matters into
their former situation. In several recent cases, proceedings of the same kind
have been sanctioned by the Court; and however insignificant, in a pecuniary
view, the reserved right may be, it involves the privilege of voting, when held
under no confidential tie, as much as the most valuable estate holding of the
Crown; 5th March 1755, Nielson, No 179. rupra ; 7th March 1781, Rus-
sell contra Ferguson, No 2co, ſupra; 20th February 1787, Macdowal contra
Crawford, No 148. ſupra.
The judgment of the Court proceeded on the preliminary objection. Several
of the Judges, however, expressed their opinion, that the complainer had no
right to remain on the freeholders' roll. * {}
After advising the complaint, which was followed with answers and replies
The LoRDs dismissed the complaint.
Act. Matenediº. Alt. C. Hay. . Clark, Menzies.
C. Fac. Col. No 1 28. p. 248.
——nº- .
1796. March 4. *
WILLIAM GovaN againſt Sir GEORGE Douglas, Baroret, and Others.
WILLIAM Govan, previously to the Michaelmas meeting of Roxburgh in
1795, lodged a claim for enrolment with the Sheriff-clerk,
Neither he, nor any person for him, attended the meeting, &
R. r
*
&
. No 242.
No 243.
A meeting of
freeholders
who had re-
jected a claim
3I4 MEMBER of PARLIAMENT. IDIV. VI.
No 243.
presented to
them, found
liable in the
expense df
serving a pe=
tition and
complainta-
gainst their
judgment, be-
cause they
had omitted
to mark in
their minutes
one of their
number as ob-
jector, by
which it be-
Č3 I\le The CéS$3.
xy to serve
the complaint
tºpon them all,
#
No 244.
A majority ‘found that the claim and titles did not precisely correspond;
and, therefore, refused to admit the claimant to the roll.
The minutes did not specify by whom the objection was made or Supported.
ºr Govan presented a petition and complaint, which was served against Sir
George Douglas the preses, and all the other freeholders present at the meeting,
and was followed with answers, &c.
The Court, without entering into the merits of the judgment of the freehold.
ers, had no doubt that the complainer, in consequence of the explanations and
productions since made by him, was now, at least, entitled to be admitted up-
on the roll ; and while it was thought he had been to blame for not attending
the meeting, or sending some person for him, they were of opinion, that some
individual freeholder, present at it, ought to have been marked as objector, by
which means the complainer would have been saved the expense of serving the
petition against the rest.
THE LORDs unanimously “found the freeholders did wrong in refusing to ad-
mit the complainer upon the roll of freeholders of said county; therefore, grant-
ed warrant to, and ordained the Sheriff-clerk of said county, to add his name to
the roll accordingly: Found the petitioner entitled to the expenses of serving
this complaint, of which allowed an account to be given in, and of the full ex-
pense of extract, but no other expense.” --~~
Act. Geo. Ferguſſon, Boyle. Clerk, Priºk. -
Fac. Col. No 209. p. 495, .
Alt. j. W. Murray.
L. D.
S E CT: II.
.*
Upon what grounds is a Complaint admitted.
1766. january 15. *
Ross of Aitnoch and Others against Sir John GoRDON and LEONARP URQUHART, .
The freeholders of Cromarty superseded the enrolment of three claimants, till
the issue of a reduction of the decrees of division of their cumulo valuations. The
claimants presented petitions and complaints. Anſwered, tno, The case does not
fall under the statute; the respondents not having refused to enrol, but delayed
giving judgment till the event of the reduction; 2do, The Lords could In Ot OT-
der enrolment de plano, as they were not competent in the first instance; the
stmost they could do was to remit to the freeholders to determine upon the mis-
Sect. 2. MEMBER of PARLIAMENT.
rits of the claims at their next Michaelmas meeting. The Court repelled the
answers, and ordered the claimants to be enrolled, and refused a petition for the
respondents, offering still to enter into their objections to the titles of the claim-
-ants,-See APPENDIX. -
- - Fol. Dic. v. 3. p. 433.
• *, * The House of Lorps affirmed both judgments.
1768. February Io. GoRDON of Newhall against WILLIAM PULTENEY, Esq.
WILLIAM PulteNEY being at Michaelmas 1766 admitted upon the roll of free-
holders for the shire of Cromarty, Gordon of Newhall, previous to the Michael-
mas meeting 1767, lodged with the Sheriff-clerk his objection why Mr Pulteney
should not be continued on the roll, which was, that his circumstances were al-
tered by a sale of the subject upon which his qualification depended. By Mr
Pulteney's keeping out of the way, there was no opportunity to prove the ob-
jection by his oath ; and as the objector had no other relevant proof ready, it
carried to repel the objection as not instructed. ---
In a complaint to the Court of Session of this supposed wrong done by the
freeholders, the Court was unanimous, that the freeholders had done no wrong.
But then it was doubted, whether it was not competent to admit the objection
to be proved in this Court. Ratio dubitandi, In questions of election, the Court
of Session has no original jurisdiction, being only a Court of review or appeal;
and, therefore, that if the court of freeholders have not been guilty of any
wrong, the complaint ought to be dismissed. A distinction was urged, on the
other hand, between refusing to sustain a man's title to be put upon the roll,
No 244- -
No 245.
A summary
complaint sus-
tained, where
an objection
for striking
a person off
the roll had
been repelled,
though by the
literal words
of the statute
it is allowed
only in three
cases ; Ist,
Where a per-
son is refused.
adly, Where
he is struck
off the roll;
and 3 d!y,
Where he is
unjustly en-
rolled. :
and refusing to sustain an objection to his being continued upon the roll. In-
the former, if the evidence of the claimant's title be defective, the freeholders
must reject his claim. A complaint of wrong to the Court of Session would be
ill founded; nor would his offer to supply the defect be listened to, leaving him
documents to be produced before them for proving the objection. There can
be no other remedy where the sale by Mr Pulteney is not upon record. Mr
Pulteney will keep out of the way to prevent expiscation by his oath; and a
court of freeholders have no power to force production of any writings.
“THE Court accordingly sustained themselves competent, and gave warrant
for production of writings to prove the objection.” * . . .
This case deserves to be kept in remembrance, as an instance of supplying a
defect in an act of Parliament, in order to complete the remedy intended by it.
For my part, I thought the remedy too bold, because the complainer had a pro-
- • - R r 2 .
to apply to the next Michaelmas head-court. But, in the latter, where the ob- -
jection is rejected for want of evidence, the Court is bound in equity to admit
316 MEMBER or PARLIAMENT. Div. VI.
No 24,5, cess at common law for turning Mr Pulteney off the roll, though more tedious
- and perhaps more expensive. It is a rule, that equity never interposes where
there is a remedy at common law. - -
. . . Fol. Dic. v. 3. p. 433. Sel. Dec. No 260. p. 333.
r - - -*.
. , , * *
- mº ºn- . . - *
- *
- 1773. jºine 24. - . . . . - ' -
- Colonel CAMPBELL of Barbreck againſt MACNIEL of Kilmory and, MACKoNochre
No 246. - of Ambriesbeg. -
Colonel Campbell of Barbreck duly lodged a claim to be enrolled as a free-
holder of the shire of Bute at Michaelmas 1772, when only two freeholders at-
tending, they took no notice of the claim, as no person appeared on the claim-
ant's behalf; and they had made up their minutes, which the preses was sign-
ing, when another freeholder appeared, and insisted, that they should take the
claim under consideration. This they refused, upon pretence, that their busi-
ness being over, the meeting was dissolved; but, upon a complaint, the Court
ordered the claimant to be enrolled, and found the defenders liable in expenses.
- - - Fol. Dic. v. 3. p. 433. Fac, Col.
*** This case is No 227. ſupra.
- - *—- - -
\
No 2 47. - 1774. August 9. Stewarts against cºurse. of Shawfield.
CAMPBELL of Shawfield had been enrolled as apparent heir to his grandfather,
a freeholder of the county of Lanark; and at the Michaelmas meeting in 1773,
he, without lodging a new claim, moved that his title to stand upon the roll
should be restricted to certain lands, which, from the proceedings of the Com-
missioners of Supply, appeared to be sufficient to constitute a freehold qualifi.
cation. The freeholders having granted his request, a complaint was given in
to the Court of Session against their judgment. THE Court found the com-
plaint incompetent. . . . . . . . .
. - Fol. Dic. v. 3. p. 433. Fac. Col.
*** This case is No 209, supra. • ..
•
\
Sect. 2. MEMBER or PARLIAMENT. 317
1792. February 2. Sir WILLIAM Dussar against Sir JAMES SINCLAIR.
SIR William Dunbar and others gave in a summary complaint against a judg-
No 248.
ment of the freeholders of Caithness, for having refused to strike Sir James
Sinclair off the roll, though he had succeeded to the peerage of Caithness.
THE LORDs found the complaint competent, and allowed the complainers to
bring proof of their allegation. . .
- ... " - Fol. Dic. v. 3. p. 433. Fac. Col.
*** This case is No Io9. p. 7395. Voce JURISDICTION.
1791. March 3.
Sir ALEXANDER CAMPBELL, Baronet, against DAVID BALLINGALL.
At the meeting for electing a Member of Parliament in the county of Stir-
ling, on 6th July 1790, David Ballingall, who for many years had been enroll-
ed as a freeholder, was present.
At this time John Johnston, one of the freeholders, proposed that several
questions should be put to Mr Ballingall, tending to shew that the titles on
which his enrolment was founded were nominal, and had never been followed
with possession. - - -
Mr Ballingall refused to answer these questions; but declared his readiness
to take the trust-Oath.
tion bear.) ‘That as Mr Ballingall refused to answer, he should be held as con-
• fessed, and ordered to be struck off the roll of freeholders; and protested,
“ that his oath at any future period should be void, and that he ought to be
expunged from the roll of freeholders.’ . . .
The freeholders did not proceed to vote on the
and the minutes of election respecting Mr Ballingall only farther mention, that
• the oath of trust and possession having been tendered 'to the said David Bal-
lingall, the same was taken by him.’
A petition and complaint was afterwards preferred to the Court of Session,
Mr Johnston then proposed, (as the minutes of elec-
No 249.
A complaint
received for
not expung- .
: ing the nāme
of a freehold-
- er, though no
precise je ci-
sion had been
given in the ''
freeholders’
court on the
- *.is w
point:
merits of those objections;
by Sir Alexander Campbell, one of the freeholders, praying that Mr Ballin-
gall's name should be expunged from the roll. . . .
In bar of this complaint, it was stated, That such an applicaſion was only
competent in three cases ; Imo, On a refusal to admit a claimant; 2do, On an
*
improper admission ; and, 3tio, On a refusal to expunge; but that the case then
before the Court was dissimilar from all these, the freeholders having given no
decision on the question, Whether Mr Ballingall should be struck of the roll
or not : ... " - . .
f

318 MEMBER or PARLIAMENT. Div. VI.
No 249.
ing Mr Ballingall, was equivalent to a refusal to expunge ; and, therefore,
THE Court were clearly of opinion, that the circumstance of the freeholders -.
having entirely disregarded the motion made by one of their number, respect-
THE LORDs sustained the petition and complaint as competent.’
Nota, Another question occurred at the same time, Whether a complaint,
not entered within four months of the freeholder's enrolment, nor founded upon
an alteration of circumstances, could be listened to ? In this case the Court al-
lowed a proof, which was taken. But the merits of the election having been
previously determined by a Committee of the House of Commons, the Court
had no opportunity to give any decision on the import of it.
Act. Geo. Ferguson, et alii. Alt. Dean of Faculy, et alii.
C. - Fac. Col. No 172. p. 353.
1791. March 3. GEORGE DEMPSTER and Others against CHARLEs Lyel.
No 25o.
An applica-
tion for being
continued on
- the roll, in
virtue of a
1 estricted
qualification,
equivalent to
a claim for
being enroll-
ed, so as to
authorise a
summary
complaint.
MR LYEL was enrolled in 1784 as a freeholder in the county of Forfar. Hav.
ing conveyed to his son a considerable part of the lands in virtue of which he
had been admitted to the roll, Mr Lyel, at the meeting for election on 2d July.
1790, preferred a petition to the freeholders, in which he prayed that they
would allow him to retain his former place in the roll, the lands still belonging
to him being, as he alleged; sufficient for affording a freehold qualification. No
objection being stated, the freeholders granted the prayer of the petition.
Of these proceedings Mr Dempster, and several other freeholders in the coun-
ty, complained in the manner prescribed by the statute of the 16th George II.
insisting that Mr Lyel had not produced sufficient evidence of the valuation of
the lands retained by him, and that therefore his name should be expunged
from the roll. x - * - - - -
Mr Lyel objected to the competency of the complaint, and -
Pleaded; The jurisdiction of the Court of Session, in reviewing the proceed-
ings held at committees of freeholders, is purely statutory, and limited to three
cases, Imo, Where the claim of a person entitled to be enrolled is rejected ; 2do,
Where a person who stood upon the roll is unjustly struck off; and 3tio, where
a person is enrolled whose titles are exceptionable.
Farther, although in this case the proceedings of the freeholders were liable
to review, still the application here made must be considered as inadmissible.
If the freeholders had been dissatisfied with the evidence laid before them, in
order to shew that the retained lands were sufficient to give a right of voting,
they might have rejected the claim of restriction; but as no objection Was Stat-
ed to the claimant's continuing on the roll, he could not be deprived of his
place in it. And in the same manner, although the Court of Session, in re-
viewing the proceedings of the freeholders, may find that the valuation of the
****
. - -
e
.*
SECT. 3. MEMBER of PARLIAMENT. 319
-º-
retained lands has not been properly ascertained, this will not authorise a strik-
ing off the roll; 9th August 1774, Stewarts contra Daniel Campbell, No 229.
ſupra. . . -
Anſwered ; The statutes authorising the Court of Session to controul the
proceedings of freeholders being of a remedial nature, ought to be so construed
as to fulfil the purpose of the Legislature. In the present case, such a con-
struction is evidently necessary. Without it, if a freeholder, after an altera-
tion of circumstances, could prevail on a meeting to permit his continuing on.
the roll, although he had no right so to do, the wrong would be irreparable ;
Wight on Elections, page 136 ; 15th January 1766, Ross of Aitnoth and
others contra Sir John Gordon and Leonard Urquhart, No 244. supra.
If in such cases as the present, the Court of Session may interpose, no rea-
sonable objection can be here stated to the form of the application. The judg-
ment of the freeholders may be considered, either as an enrolment of the par-
ty on his new and restricted qualification, or as a refusal to sustain what was a
sufficient objection to the former enrolment. And in either of these views the
Court are authorised to give redress, by directing the name of the party to be
expunged. The case referred to on the other side was very different from the
present one, the proceedings having been held at a Michaelmas meeting, where
no objection could bé listened to which had not been lodged two months before. ,
By a considerable majority of the Judges, the application for a restriction
was viewed as an objection made by the freeholder himself to his continuing on
the roll, in virtue of the lands formerly belonging to him. -
And therefore the LoRDs found, that the petition and complaint was com-
petent. . - - . . .
Act. Mat. Ross, Hºpe. Alt. Hay. Clerk, Sinclair.
C. • Fol. Dic. v. 3. p. 433. Fac. Col. No 173, p. 354. -
SEC T. III.
of Objections not stated, or Evidence not produced to the Freeholders.
.*
Found, that objections not stated to the court of freeholders, may be insist.
ed in before the Court of Session. - - - -
. . . . . . - -- - Fol. Dic. v. 3. p. 434. Fac, Col.
*...* This decision, affirmed on appeal, April 1. i762, is No 18. upra.
*
No 250.
No 251.
*. & W.
*A •. • .
• *. •
sº º
32C MEMBER of PARLIAMENT.
DIV. VI.
No 252.
Where the
judgment of
court of free-
holders refus-
ing a claim
enrolment, on
titles that
were laid be-
fore them,
and objected
to, is brought
under review
of this Court;
and an addi-
tional objec-
tion to the
title is newly
made here, it
is competent
to receive
evidence, in
order to re.
move that
objection.
No 253.
1773. March, 16. *
JAMES GoRDON of Badenscoth against General JAMES ABERGROMBIE of Glassoch,
and Others.
AT Michaelmas 1772, Mr Gordon having claimed to be enrolled as a free-
holder in the county of Banff; diverse objections were made to his title, and
the majority of the meeting rejected his claim.
- Mr Gordon having presented a complaint against this refusal, in the answers
whereto, besides ſecapitulating the former objections, an additional one to his
title was mentioned ; he in fifted, That, as this objection had not been stated in
the meeting of freeholders, he was entitled to produce new evidence in support
of his claim, which he offered to do. º
To this the respondents objected, on the incompetency of admitting new evi-
dence in the review-court, to overturn the judgment of the original one ; re-
ferring to the argument maintained by them in the case of Gordon of Whitley,
No 260. supra. - a
“THE LORDs repelled the objections made to the complainer's titles; but,
‘ before answer to the objections made in the answers, that the Castletown of
& Blairfiddie, and Easter Blairfindie, are separate tenements, allowed the complain-
‘ er to prove, that the lands of Easter Blairfindie are the same with the lands
‘ called the Castletown of Blairfindie.’ And, upon advising the proof addu-
ced, the Court found this point proved; and, on the whole, found, that the
freeholders did wrong in refusing to enroll the complainer; and, therefore,
granted warrant to add his name to the roll.
Act, Sol. General, Cosmo Gordon. Alt. Elphinstone, 7. Boswell. Clerk, Pringle.
Fac, Col. No 67, p. 165.
**-ºsmº ºm--—-
against EDMONSTONE.
1782. February 29.
SIR Archibald Edmonstone of Duntreath having obained a charter of certain
lands in Dumbartonshire, conveyed them, in September 1773, to Stewart of
Fenwick in liferent, and to Archibald Edmonstone his own son in fee, and by
the conveyance he assigned to them the precept of Sasine in the charter, which
still remained unexecuted. Both fiar and liferenter were accordingly infeft,
and at Michaelmas 1774 the latter was enrolled a freeholder. The fiar was not
then of age. He, however, claimed to be enrolled at Michaelmas 1779, and
produced the charter in favour of his father Sir Archibald, together with his
own sasine, and a regular certificate that the lands were of the requisite valu-,
ation ; he neglected, however, to produce the conveyance from his father to'
Mr Stewart in liferent, and to himself in fee. The want of this disposition was
accordingly made the ground of an objection to his being enrolled ; but the
-*
*
*
SECT. 2. MEMBER or PARLIAMENT. 32 I
freeholders over-ruled the objection. A complaint was preferred against their
judgment to the Court of Session; in answer to which, Mr Edmonstone found-
ed upon the minutes of the meeting of freeholders in I 774, from which it ap-
peared, that the conveyance had been laid before them, though it had after-
wards been lost or mislaid; and in order to supply the defect, he produced a
new conveyance from his father ; but the Court found, that the freeholders
did wrong in enrolling him, and ordered his name to be exput ged from the roll.
See APPENDIX.
Fol. JDic. v. 3. p. 434.
—-ammº Bººm--—-
1781. February Io. MooDIE of Milsitter againſt BAIRIE.
+ -ºr-
. .
-- . . . .3.
MooDIE of Milsitter claimed, at the Michaelmas meeting 1780, to be enfº
led as apparent heir to his father, in virtue of lands upon which both his fath;
and grandfather had stood on the roll; but having neglected to bring with him
his father's charter, and having only produced the Sasine that had followed on
that charter, the freeholders rejected his claim ; and the Court of Session af-
firmed their judgment. 2.
Fol. Dic. v. 3. p. 434. Fac Col.
*** This case is No 1 So. p. 8866. |
PATRICK PRoctor againſt Sir DAVID CARNEGY.
3796. May 14.
PATRIck PRocroR claimed to be enrolled as a freeholder in Forfarshire, and
produced a charter from the Crown, containing lands affording a freehold qua-
lification, in favour of the Earl of Strathmore ; a disposition thereof to himself
by Thomas Lyon and James Dundas, the Earl’s Commissioners, containing an
assignation to the unexecuted precept in the charter, and an instrument of sa-
sine taken in virtue of it in his favour.
But he did not produce the Earl's commission to Messrs Lyon and Dundas;
and although it was referred to in his claim, neither its date nor that of its re-
gistration were specified. Nor did it appear from his sasine, that it had been
produced by his attorney to the Bailie when the infeftment was taken.
To these titles Sir David Carnegie *
Objected; A claimant before his enrolment, must produce to the freeholders
• the whole titles and vouchers of his qualification;'' 16th George II. . Mr
Proctor ought therefore to have produced Lord Strathmore's commission to
Messrs Lyon and Dundas, as forming an essential part of his titles; because
without it, he does not connect them with the charter on which his infeſtment
S S
No 253.
No 254,
No 255.
A claimant
having pro-
duced, before
a court of
freeholders, a
disposition
from Com-
missioners,
containing an
assignation to
a precept of
s2.sine in a
Crown char-
ter in favour
of their con-
stituent, and
his claim hav.
ing been re-
jected, be-
Cause he did
not produce
the commis-
sion under
which the
disposition

32.2 MEMBER of PARLIAMENT. DIV, IV.
No 255.
was granted,
it was found,
that the ob-
jecticn might
be removed
by his after-
wards pro-
dici;g it in
the Court of
Session.
proceeds ; for it is as essential to their validity, that the commissioners should
be connected with the charter, as that he should connect himself with them
by the disposition ; 17th February 1767, Sir John Gordon, No 157. Fupra ;
Ioth February 1781, Moodie, No 180. p. 8806. ; 23d February 1790, Nisbet,
No 23.I. ſupra. -
2do, The act 1693, c. 35. declares, ‘That all sasines in favour of a disponee,
• different from the person to whom the original precept. is granted, shall be
, null, unless the titles by which the former has right to it are deduced in the
• the instrument.” Mr Proctor's sasine is therefore void, from its neither nar.
rating the commission to Messrs Lyon and Dundas, nor stating that it was ex-
hibited by his attorney to the Bailie. Indeed, independently of a statute, a
Bailie, at common law, cannot give a valid infeftment, unless the attorney shew
a complete right to the precept in the person of his constituent ; Craig, 1. 2:
d. 7. § 8, ; Stair, b. 2. t. 3. § 16. ; which he certainly did not do in this case,
merely by producing the disposition by Messrs Lyon and Dundas, without the
commission empowering them to grant it.
Answered ; Imo, The commission from Lord Strathmore formed no part of
Mr Proctor's title of enrolment. It was at best merely a link in his progress,
which it was sufficient to refer to in his claim, and which he was not bound to
produce; 10th February 1781, Haldane, No 181. rubra.
2 do, In all cases, the delivery of the precept of Sasine, and of a conveyance
to it ex facie regular, is a sufficient warrant to the Bailie to give infeftment;
Stair, b. 3. t. 2, § 17. ; Ersk. b. 2. t. 3. § 35 ; Office of a Notary, p. 71. and
76. ; find in practice nothing further is required. Nor can any harm arise from
his ; because, if it should afterwards appear that the conveyance of the pre-
cept flowed a non habente, the sasine will be void ; while, on the other hand, to
sustain this objection would strike at the rights of many landed proprietors.
The first only of these objections was stated before the freeholders; and they
having sustained it, Mr Proctor presented a petition and complaint against their
judgment, and, at the same time, produced an extract of the commission to
Messrs Lyon and Dundass. º
On advising the complaint, with answers for Sir David Carnegie, in which
the objection to Mr Proctor's sasine was first made, a majority of the Court
thought the decision of the freeholders right on the first objection, which ren-
dcred it unnecessary to determine the second.
But on advising a reclaiming petition for Mr Proctor, with answers, the
Covar altered their opinion, and thought both objections should be repelled.
The commission by Lord Strathmore, (it was observed) forms no part of Mr
12roctor's titles, although, in order to support them, he is no doubt bound to
produce it, if required. But as a claimant may not have it in his power instant-
ly to exhibit collateral or suppletary evidence of this sort, it is fixed by the
case of Gordon, No 16o. ſupra, that if he should be rejected by the freeholders
t
;
SECT. 4. MEMBER or PARLIAMENT.
323
for not doing so, he may remove she objection, by afterwards producing it in
this Court.
The objection to Mr Proctor's sasine, is neither sanctioned by the statute
I693, nor by practice.
THE COURT unanimously repelled the objections.
For the Complainer, Lord Advocate Dundas, Solicitor-General Blair. Geo. Ferguson, Ar. Campbell,
Alt. H. Erikine, Hay, M. Ross, Gillies, Robertson Scott. Clerk, Home.
Fol. Dic. v. 3. p. 434. Fac. Col. No 214. p. 595.
jun.
S E C T. IV.
Whether the Court of Session may admit Evidence not laid before the
* ‘Freeholders. e
1755. january 17. - -
Mr John CALLENDER of Craigforth, Advocate, againſt Mr RoRERT BRUCE
of Kennet, Advocate.
THE defender was enrolled in the roll of freeholders of the county of Stirling,
at their Michaelmas meeting 1753. -
The pursuer, one of the freeholders, complained, and made Sundry objec-
tions against the decreet of the Commissioners of Supply, dividing the valuation
of the defender's lands from the valuation of the barony of Kerse, of which they
were a part. s - - -
The defender admitted, that the Commissioners had not proceeded so regu-
1arly in the division of his valuation ; but represented that, since giving in of
the complaint, a General Meeting of the Commissioners of Supply had made a
new division of the valuation of the whole barony, and offered to produce an ex-
tract thereof, by which it would appear, that none of the pursuer's objections,
uor any other objection, lay against this new division, aecording to which the
valuation of the defender's lands exceeded L. 4co Scots ; that the defender had
been enrolled without any objections offered to the Meeting against his enrol-
ment, and that he was, at the time of the enrolment, as well as now, the
Crown's vassal in lands of the valuation required by law; so that the Meeting
did right, both formally and materially, when they enrolled him, and therefore
he ought to continue on the roll. - -
Answered for the pursuer, That none are entitled to be enrolled, unless they
produce to the Meeting legal evidence that their lands are valued at or above
S s 2
No 255.
No 256.
A freeholder
having been
enrolled on
2 ſl erro ſle O UlS
division of
the valuation
of his lands,
produced,
with his an-
swers, to a
petition and
complaint,
an after divi-
sion, which
sº
was unexcep- -
tionable.
The Lords,
however, or-
dered him to
be expunged
from the rôll,
reserving to
him to iodge
a new claim
on the last
division.
324 MEMBER OF PARLIAMENT. IDIV. V.E.
No.256.
No 258.
In reviewing
the judgment
of freehold-
ers, the
Court of Ses-
sion cannot
receive evi-
L.4co Scots; and, as the defender did not produce to the Meeting legal evi-
dence of the valuation of his lands, he was not entitled to be enrolled, and can-
not continue upon the roll in virtue of that enrolment, although he may be en-
titled to be enrolled by an after meeting, upon producing proper titles.
“ THE LORDs sustained the objection, and found, That it was not now com-
potent to supply the errors or defects in the division of the yaluation made be.
fore the enrolment, so as to validate the enrolment thereon ; and therefore or
dained the defender to be expunged from the roll, reserving to him to apply for
being enrolled upon any new regular division of the valuation.”
Yº
Act, Leckhart & Aſad. Pringle. . Alt. 7a. Dundar. Clerk, Forbes.
Fol. Dic. v. 3. p. 434. Fac. Col. No 130. p. 194.
—-mº-
1767. February 17. SIR JOHN GORDON, againſt FRASER, &c.
.
SIR John GoRDON claimed to be enrolled at Michaelmas I766, but neglected.
to produce a retour to show the old extent of the lands on which he claimed.
Having complained against a judgment of the freeholders, rejecting him, he pro-
duced a retour with his petition, from whence it appeared that his lands were
of the full legal extent. THE COURT dismissed the complaint. *
1767. May 4.—THE House oF LORDs affirmed the decree, and declared
“ That the titles produced by the complainer to the freeholders, upon which he
claimed to be enrolled, were essentially defective, for want of showing a retour;
for which reason the freeholders did right in refusing to enrol him ; and that
upon his petition, complaining of such refusal, the Court of Session was con-
fined to the titles laid before the freeholders, having no jurisdiction by the sta-
tute in that case made and provided, to order a claimant to be enrolled upon
any title originally produced to them, and not laid before the freeholders in the
first instance.” See APPENDIX. See No 17. p. 1700.
Fol. Dic. v. 3. p. 435,
~sº ºne--
1767. December 19. * --
Captain JAMES STEwART against ALEXANDER RoBERTson,
* Writer to the Signet.
At Michaelmas Head Court 1767, Captain James Stewart claimed to be en-
rolled as a freeholder in the county of Forfar, upon the lands of Nevay ; and
he produced a certificate from two Commissioners of Supply of that County,
bearing, that these lands stood valued in the cess-books at L. 800 Scots,
SECT. 4. MEMBER OF PARLIAMENT. 32.5
It was objected by Mr Robertson, ‘That the certificate produced does not in-
‘ struct the valued rent of the lands claimed upon ; that certificate is only evi-
‘dence, that the lands which belonged to the Laird of Nevay, in the parish of
* Nevay, are valued in the roll 1683, at L. 8oo Scots; but there is no evidence
“ produced to the freeholders, that these are the lands claimed upon.’
It was answered for the claimant ; That the certificate and old cess-books pro-
duced, instructed, that the lands claimed on were the lands which formerly be-
longed to the Laird of Nevay ; and it was said, that the fact was notoriously
known in the country.
The freeholders refused to enroll Captain Stewart, who complained to the
Court of Session ; and, aiong with his petition and complaint, he produced a
connected progress, which pi ºved, th ... the lauds he claimed upon were those
which had formerly belonged to the Laird of Nevay, and stood in the valuation-
roll and cess-books at L. Soo Scots.
It was answered, in support of the objection, That Captain Stewart had not
produced to the freeholders evidence sufficient to satisfy any Court, that the lands
to which he had right were the lands entitled to the valuation he claimed; and
that, although he produced to the Court of Session sufficient evidence to instruct
that fact, it could not be received; as the only question under the consideration
of the Court was, Whether the freeholders did right or wrong in refusing to sus-
tain the complainer's claim upon the evidence before them * That, if the free-
holders had judged properly upon the evidence produced to them, their judg-
ment could not be overturned in consequence of any new or additional proof,
which had never been under their consideration ; and therefore the writings
produced along with Captain Stewart's complaint could not be received.
“ THE LORDs, having heard this petition, and complaint, with the answers
thereto, and writs produced, find, That the freeholders did right in refusing to
enrol the petitioner at last Michaelmas; and therefore dismiss this complaint,”
&c.
Captain Stewart gave in a very full petition against this interlocutor, which
was refused without answers. ©
For Captain Stewatt, M*Queen, Ilay Campbell, &c. *.
For Mr Robertson, Lockhart, Rae, Alex. Elphinstone, &c.
A. E. Fol. Dic. v. 3. p. 435, Fae. Col. No 70, p. 123.
t
No 258.
dence which
was not pro-
duced to the
freeholders,
*
--- 326 -
MEMBER or PARLIAMENT. Div. VI,
No 259.
No 26o.
It is compe-
tent in the
Court of Ses-
sion to re-
ceive evi-
dence expla-
natory of a
claimant’s
title, to re-
Imove an ob-
jection sus-
tained in the
Court of
Freeholders.
1768. February 23. against REID of Logie.
REID of Logie claimed to be enrolled a freeholder of Forfar at Michaelmas
1767, and produced as his titles; Imo, Charter of the lands claimed on in fa-
vour of Alexander Stormonth ; 2do, Disposition from Thomas Stormonth, the
son of Alexander, in favour of the claimant, containing an assignment to the
unexecuted precept of the charter; and, 3tio, His own instrument of sasine in
virtue of that precept. But, when the claim was moved, Thomas Stormonth's
general service to his father, a necessary link to connect Thomas with the pre-
cept, and to enable him to convey it, was not to be found. The freeholders,
however, overruled the objection. The Court of Session altered this judgment.
But the House of Lords, on appeal, in respect that the retour of Thomas's ser-
vice was in the hands of the clerk to the meeting of freeholders, on the morn-
ing of the day of their meeting, and was then lost by accident, so that an ex-
tract could not be got thereof during the sitting of the meeting, but which ex-
tract was produced to the Court of Session, ordered the interlocutor to be re-
versed. See APPENDIX. *
Fol. Dic. v. 3. p. 436.
1773. March II.
ALExANDER GORDON of Whitley, againſt General JAMEs ABEreroMBY,
and Others.
MR GoRDON claimed to be enrolled as a freeholder in the county of Banff,
upon certain lands, and among others, ‘the lands of Inveraurie, and the lands
* of Inverhebit, formerly called Middle, or Little Inven hebit, and now called
• Bellchorach of Inverhebit.’ To prove the valued rent of these particular lands,
he referred to an article in the valuation-roll, made up in 1690, stated thus:
“ Inveraurie and Inverbebit, L. 250.’ To this claim it was objected, inter alia,
that there were three different farms of the name of Inverhebit, viz. Easter, West-
er, and Middle, or Little Inverhebit ; ar's that no evidence was produced to
show, that the valuation stated in roll 1692, to Inveraurie and Inverhebit, ap-
plied only to Little Inverhebit. The freeholders sustained the objection, and
refused to enrol. -
Mr Gordon complained of this judgment, and offered to prove, that the lands
of Little Inverhebit, now called Bellchorach, were the lands which, together
with Inveraurie, had uniformly paid cess for the article of L. r 5o in the valuation-
books. And of these points the Court allowed a proof. ' -
Pleaded by the respondents to the complaint, in a reclaiming petition ; It is
a clear point, that this Court have no original jurisdiction for enrolling freehold-
ers. They have only a power, by statute, to review the proceedings of the free-
©
SECT. 4." MEMBER or PARLIAMENT. 327
holders, in the form of complaint. A person, therefore, who is desirous to be No 26o,
enrolled as a freeholder in any county, must go to the Court of Freeholders with
his titles, and whole instructions of his qualification. He must give the free-
holders an opportunity of seeing and examining the evidence upon which he
claims to be admitted; and it is totally incompetent for him to apply to this
Court, in the first instance, or to make his productions, for the first time, here,
in order to entitle him to be enrolled. If the freeholders have erred, or misap-
prehended the import of the evidence before them, they are, no doubt, subject
to the correction of the Court of Session ; but if, on the other hand, they have
pronounced their judgment agreeable to the evidence before them, it would
have an extraordinary appearance, to find, that they have done wrong, when
the Court of Session, judging upon the same evidence, must have pronounced
the same judgment. -
That the freeholders, in this case, determined properly upon the evidence be-
fore them, the complainer himself admits; because he acknowledges, that far-
ther evidence than what was produced to the freeholders, is necessary, in order
to support the plea he now maintains. And, if the complainer has any sufficient
evidence to produce for removing the objection stated to the freeholders, he may
claim of new at next Michaelmas, and produce that evidence to the freeholders;
who, on the objection being removed, will admit the complainer to the roll.
But it is altogether incompetent to produce that evidence in this Court which
has never been laid before the freeholders.
The complainer was obliged to admit, as to the titles and valuation or retour,
that these could not be produced before this Court in the first instance; because
so it was expressly found by the House of Lords, in the case of Gordon, No. 257.
p. 3874. The question there was about the production of a retour, which Sir John
Gordon did not think proper to show to the freeholders; and although this was
not strictly speaking, a part of the title, but an evidence for proving that his
lands were retoured at 46 shillings of old extent, the House of Lords held the
production of this to be equally essential with that of his title-deeds, and in ef.
fect to constitute a part of his title or qualification; and expressly found, that
this Court, having no original jurisdiction to enrol, could not receive such evi-
dence here in the first instance. - ... "
It is plain that, in reason, there can be no difference between omitting alto-
gether to produce the titles before the freeholders, and producing such as are in-
sufficient for the purpose. For example, suppose a claimant shows, from his
title-deeds, that he has a right to the lands of A, and produces a retour, bear-
ing, that the lands of B. are forty shillings of old extent, and, at the same time,
avers, before the freeholders, that the lands of A, and the lands of B, are the
same, but without showing any evidence of such averment; what can the free-
holders do in such a case but reject the claimant * This does not hinder him to
come another time, with the necessary instructions for supporting his qualifica-
tion, by connecting his titles with his retour, and showing that A. and B. are:
No 26o.
f
**
328 MEMBER or PARLIAMENT. - Biv. VI.
a
the s me lands ; but he cannot go before the Court of Session, as a Court of en-
rolment, in the first instance, and there make his prod uctions, in order that that
court may enrol him, and overturn the judgment of the freeholders, upon evi-
dence which never was before them. : - - …
The same thing is to be said, where there is a want of connection between the
titles and the valuation, or where there is any other defect in the instructions of
the claim, requiring to be supplied by other writings, or by the production of
further evidence. And this doctrine is not only founded in reason, and in the
nature of the jurisdiction which this Court has, with respect to enrolment, but
has also been established by repeated decisions, in similar cases, particularly in
the case of Captain Stewart, a claimant in Forfarshire, No 258. supra.
In fine, the alleged defect in the law is altogether imaginary; though, were
there any as to this particular, it would not follow that this Court could amend
or alter the same, and convert its jurisdiction, which is founded in statute, and
goes no further than a power of review, into an original jurisdiction. Every
claimant is supposed to know the defects of his own titles, and ought therefore
to be furnished with the proper evidence for supplying the same, when objected
to. This was the principle adopted in the case of Captain Stewart ; and it was
then observed, that, if a claimant was not possessed of the necessary documents
for supporting his qualification, it was his duty to take the proper steps to fur-
Inish himself with such evidence. * .*
Answered; It is admitted, that, as the Court of Session have no radical juris.
'diction, as a Court of Freeholders, the claimant's titles cannot be produced, in
the first instance, before this Court. The titles being essentially necessary to
found the party in his claim, (and, without which, no enrolment can proceed),
must undoubtedly be laid before that meeting, who must necessarily judge, in .
the first instance, of the qualification. But, when the titles requisite for found-
ing the claim are actually produced before the meeting of freeholders, there is
nothing, in law, or reason, or the practice of the Court, to deny the claimant
the liberty of laying before them any extrinsic evidence that he can adduce, for
obviating any doubt or difficulty that may be stirred, respecting the identity of
the lands, or other objections of that nature. .
Indeed, without establishing such distinction, the purposes of justice, in many
cases, could not be attained. If supplementary evidence could not be admitted
here, it would be scarcely possible for a claimant ever to get on the roll, where
he happened to be disagreeable to the majority of the meeting, as nothing more
would be necessary than to state objections, however false or ill grounded, to
point out other lands of the same name, and to make averments contrary to
truth. As the law does not require any previous intimation of the objections,
it is impossible that the claimant can come to the meeting with evidence pre-
pared for removing all the pretended doubts and difficulties which may be sug-
gested, and which he could know nothing of till they were stated; and, accord-
ing to this doctrine, let his qualification be ever so good, and the averments
2.
SEtr. 4. MEMBER & PARLIAMENT. 329
against him ever so false, he must remain forever off the roll, because it is in
vain for him to complain to the Court of Session. *
The respondents take too slight a view of the case, when they argue, that, if
farther evidence be necessary for supporting the claim, and removing the objec-
tions stated against it, the claimant must apply to the next Michaelmas meet-
ing, and there produce his new evidence. This might possibly answer, (al-
though it must necessarily occasion a twelve months delay), where the claimant
himself is possessed of the evidence; but, as freeholders have no compulsatory
jurisdiction, matters would be inextricable, where the facts to be proved rested
either upon parole evidence, or upon the evidence of writings, the property of -
third parties, and in their custody.
As to the case of Captain Stewart, it is but a single decision; and there was
one material difference between that case and the present. It was plain, from
the showing of the claimant himself, that it was his own fault that sufficient evi-
dence, for establishing the identity of the lands, was not laid before the free-
holders; for, in his application to this Court, he sets forth, ‘That he had now
recovered and produced a complete progress of the lands, from the 1631,
‘ downwards, which might have been seen on record, whereby it was proved,
“beyond the possibility of a cavil, that the lands were the same.’ And, in the
answer to the complaint, the fact was not disputed. But the case is very differ-
ent, where the claimant not only was not possessed of the evidence, but, with-
out the interposition of this Court, never can be possessed of it; and, of conse-
quence, though possessed of a substantial qualification, can never have it in his
power to be put on the roll, were the present application incompetent and inad-
missible. - - - -
“THE LoRDs adhered.” And thereafter, on advising the proof adduced by
the complainer, found the points proved ; and therefore repelled the objection
to the complainer's titles; and, on the whole, found that the freeholders did
wrong in refusing to enrol the complainer, and granted warrant to add his name
to the roll. -- -
Act. Advocatus, Sol. General, Coimo Gordon, R. Blair. Ait. Ilay Campbell, Elphinstone,
Abercrombie. Clerk, Pringle. • -
. Fol. Dic. v. 3. p. 435. Fac. Col. No 68, p. 166.
*...* In this case, and in others of a similar nature, from the counties of Elgin,
Renfrew, and Kinross, the Court made the following distinction —
Every person must produce his charter and sasine, and likewise a retour,
when he claims upon the old extent, or a certificate of his valuation, if
he claim upon valued rent. These are radical titles, without which he
cannot be enrofled; but if they be produced, and appear ex facie to be
good, objections made to them upon grounds not foreseen, may be re-
moved by new collateral or explanatory evidence before the Court of
-Session.—See APPENDIX.
T t
No 26o.
339 MEMBER or PARLIAMENT. Div. vi.
No 261.
A part of a
claimant’s
title-deeds,
in his posses-
sion when en- -
rolled, but
not exhibited
to the meet-
ing of free-
holders, ad-
mitted, in the
Court of Re-
view, to be
produced, to
obviate a
corn plaint a-
gainst the en-
&nrolment.
#
1781. March 6. John HAMILTON against RoRERT CATHCART.
IN the year 1703, Mr Cathcart of Carleton obtained a charter of resignation
under the Great Seal of certain lands; and, in the same year, he disponed these
lands and charter of resignation to Robert Cathcart of Genoch.
Upon Genoch's death, his son, John Cathcart, was served heir in general to
him, thereby deriving right to the charter of resignation and disposition ; and
his infeftment upon the service, which was duly retoured, was recorded the 8th
of December 1738. Upon these rights, together with a retour, dated 29th Au-
gust 1677, for proving the old extent, he was admitted to the roll of electors
for the county of Ayr.
At the Michaelmas meeting of the freeholders in that county in 1780, Ro-
bert Cathcart, son to John, claimed to be enrolled as apparent heir of his fa-
ther, lately dead; and his claim, founded on the titles already recited, was
unanimously sustained. - s
It was discovered that Mr Cathcart had not exhibited to the freeholders the
disposition by Carleton to his grandfather. In a complaint at the instance of
Mr Hamilton, it was …” - . . . . . - - -
Pleaded ; By the act ióth Geo. II, it is provided, That nq heir apparent shall
be enrolled until his predecessor's titles are produced. The charter of resigna-
tion founded on is not in favour of the ancestor, but of Carleton. A disposition
from Carleton, therefore, is absolutely necessary for connecting the charter in
his favour, with the infeftment in favour of the predecessor. Without it the
ancestor's rights are incomplete, and could neither afford a title of prescription,
inor for being enrolled as a freeholder. The claimant, therefore, not having pro-
duced the disposition in favour of his ancestor, has not complied with the legal
requisites, and the freeholders did wrong in admitting him to the roll.
It is not sufficient to elide this objection, that Mr Cathcart had this evident
in his possession at the period of his enrollment. The freeholders did wrong in
admitting the claimant, contrary to the express prescription of the law; and al-
though the Court of Review may receive new evidence in support of titles pro-
duced to the freeholders, it cannot judge of titles which, though mentioned in
the claim, and essential to the qualification, were not exhibited at the enroll-
ment. According to this doctrine, the Court deeided in the cases of Sir John
Gordon against the Freeholders of Cromarty, affirmed by the House of Lords.
(see APPENDIX); of Mr Edmonstone of Duntreath against Freeholders of Dum- .
bartonshire, 29th Feb. 1780, No. 253. ſupra; and of Mr Moodie of Melsetter:
against Freeholders of Orkney, 10th Feb. 1781, No 254. ſupra. - -
Answered for Mr Cathcart;. The disposition in question was in the possession.
of the claimant when he was enrolled, and could have been produced, had it
been called for. The same justice, which listens to an objection omitted at the
enrollment, which was the proper season. for making it, will afford the other
- *
seer, 4. MEMBER or PARLIAMENT. 33.
party an opportunity of defending himself. It is therefore competent to the re-
spondent to obviate the objection, by producing the disposition at the bar.
In the cases referred to, the objection had been moved at the enrolment,
whereby the claimants had an opportunity of removing it, if they had been in a
capacity to do so. - -
“THE LoRDs repelled the objection, and dismissed the complaint.”
Alt. MºDaurin, 7. Borwell. Alt. Geo. Buchan Hepburn. - *
C. Fol. Dic. v. 3. p. 436. Fac. Col. No 45, p. 80.
*.* This judgment was approved of by a Committee of the House of Com-
mons, appointed to try the merits of the election for the county of
Ayr.
—-mm---
1786. july 26, ERSKINE KNIGHT againſt Robſ. RTSON.
In the case of Mr Erskine Knight, No 189. rupra, new evidence was
admitted in the Court of Session, of the allegation, that Mrs Erskine was an
heiress of provision, and therefore that her husband had right, as tenant by the
courtesy, to continue on the roll after her death. : -
- Fol. Dic. v. 3. p. 437.
e-mammº ºm--
1791. February I. Bruce againſt Davidson. -
AT the meeting of election for the county of Stirling, 3d July 1790, Colonel
Andrew Bruce claimed enrolment, as having right to the lands of Balquhatston
Above-the-Hill or Bunie hill of Balquhatston, Wester Balmitchel, and Bullion.
dale, part of the lands of Slamannan. It having been objected, That no entry
corresponding to these lands appeared in the valuation or cess-books, it was an-
swered, “The claimant's lands stand distinctly rated at L. 4oo in the valuation
• and cess-books, under the names of the vassals; and the claimant is ready to
show, by the charters of the vassals, that these names in the cess and valua-
• tion-books, do apply to the lands upon which he claims to be enrolled, and to
• no other.' It was replied, That this ought to have been shown to the Com-
missioners of Supply; and, in fact, there had been an application made to them
for that purpose, and a report made up by a Committee; but, as that report had
In Ot been approved of by a general meeting, the freeholders rejected the claim.
Upon a complaint, however, the Court allowed a proof of the correspondence
of the lands claimed on, with the entries in the cess-books; and, on advising it,
they ordered Colonel Bruce to be enrolled. See APPENDIx.
. . Fol. Dic. v. 3. p. 436. Supplement to Wight, p. 5.
- T t2 - *...
Ö
No 261.
No 262.
No 263.
332; MEMBER or PA
Div. Yº
I796. March 2.
SIR IoHN OGILVIE of Inverquharity against SIR DAYID CARNEGIE of .
- Southesk. *.
SIR John Ogilvie claimed, at the Michaelmas meeting 1795, to be enrolled,
inter alia, upon the lands of Baldovan ; and an article under that name appear-
ed in a valuation-book of the county, in 1683, at L.552. At an after period.
however, there had been a sale of certain parts of the lands, which were spe-
cially excepted in the claim; and, as it did not appear what part of the valua-
tion was applicable to the lands sold, it was objected, That, without a regular
decree of division, the valued rent was not legally instructed; and, although it
was shown from the cess-rolls, that the lands claimed on applied to an article of
the same name, entered in a valuation-book subsequent to the sale, and conse-
quently applied to the original article minus the excepted lands, the freeholders.
sustained the objection. Sir John gave in a complaint, which was followed with
answers, replies, and duplies. In the pleadings, it was shown almost to demon-
stration, not only by the cess-books, but by various pieces of other evidence,
that, in the article of valuation founded on, allowance must have been made for
the lands sold ; and, notwithstanding all kind of new evidence was objected to
as incompetent to show, in the Court of Session, what was said to be, not the
identity of two articles, but the amount of the valuation, which ought in every
case to be first laid before the freeholders, the Court reversed the judgment of
the freeholders, and ordered Sir John to be enrolled.—See APPENDIx.
Fol. Dic. v. 3. p. 436. Supplement to Wight, p. 6.
• —m-
1796. March 4. . - * - - -
Gov.AN. of Hermiston againſt Sir GEORGE Douglas and Others.
AT, the Michaelmas meeting of freeholders for Roxburghshire, 6th October
1795, a claim was presented for enrolment upon ‘all and whole that half part
of the dominical lands of Herdmestown, now called Hermistone;” and, in
proof of the old extent, there was produced a retour, dated 1510, of the half of
the dominical lands of Herdmestown, but without saying, which half; and, as
there was no evidence laid before the freeholders, to show that the half now.
called Hermistone was the same with that contained in the retour, they refused.
to admit the claimant to the roll. In a complaint, however, it having been.
made out to the satisfaction of the Court, that the lands claimed on, and those
retoured, were the same, the claimant was ordained to be enrolled. See AP-
}*ENDIX. -
Fu. Dic. v. 3. p. 436. Supplement to Wight, p. 6.

SECT. 4. MEMBER of PARLIAMENT. 333
S E. C. T. V.
Consequence of withdrawing opposition to a complaint. What fine
in a joint complaint. Complaint for bribery. Complaint for un-
due enrolment.
1765. January 17. SINCLAIR and SUTHERLAND against MACKAY.
WHEN freeholders withdraw their opposition, the Lords do not grant the
prayer of the complaint of course; they order the withdrawing the objections to
be notified by the Sheriff to the other freeholders, at a meeting called for the
purpose, in order that they may, if they think proper, still continue the suit.—
See APPENDIX.
Fol. Dic. v. 3. p. 437.
*º-
3768. FRASER, &c. againſt Ross of Priesthill and GoRDoN of Carrol.
By $ 6, of 16th Geo. II cap. 11. ‘If the judgment of the freeholders, refu-
• sing to admit, or striking off any person from the roll, shall be affilmed by the
* Court of Session, the person complaining shall forfeit to the objector the sum
* of L. 30 Sterling, with full costs of suit.’ Where a joint complaint, in name
of the liferenter and fiar of the same lands was dismissed, the Court imposed
only one penalty of L. 30 on both.-See APPENDIX. .
Fol. Dic. v. 3. p. 437.
*-* Sºma-i-º-º-º-
1768. july. General IRVINE against John ADAM of Maryburghi.
By 26 Geo. II, cap. 24. § 9. junct. § 2. any person guilty of bribery, by ac-
eepting money, or other reward, for his own vote; or by corrupting others,
shall, for each offence, forfeit the sum of L. 5oo Sterling, “to be recovered, with
... full costs of suit, by summary action or complaint before the Court of Session,
, or by prosecution before the Court of Justiciary.” Found, That in a complaint
to the Court of Session upon this clause, the respondents were not entitled to in-
sist, that a list of the witnesses to be adduced should be exhibited, or the writ-
ings to be founded on produced with the complaint, as would have been the
case had they been prosecuted before the Court of Justiciary. See APPEN-
TXiX.
Fol. Dic. v. 3, p. 438.
No 266.
No 267, *
No 268.
$34 MEMBER of PARLIAMENT. Div. VI.
No 269.
No 270.
1773. Auguſt 7. Lord Adam Gordos against DUEF. W
OBJECTED to a complaint against an improper enrolment, which had been
lodged and moved by the Court two days before the four kalendar months re-
quired by act 16th Geo. II. that the order of Court, appointing it to be served,
was not dated or signed till one day within the four months. THE LORD's re-
pelled the objection.
Fol. Dic. v. 3. p. 437. Fac. Col.
*** This case is No 68, supra.
DIVISION VII. *}
Penalty for a False Return.
HoME CAMPBELL against SINCLAIR.
By 7th Geo. II. cap. 16. § 1. it is provided, “That if the clerk of any meet-
* ing of freeholders for the election of a Commissioner, shall wilfully return to
the Sheriff any person other than him who shall be duly elected, or if any other
person shall presume to act as clerk, and wilfully to return to the Sheriff any
person as elected, who shall not be duly elected, the party so offending shall
forfeit L. 5oo ; and every Sheriff who shall wilfully annex to the writ any
• false or undue return, shall forfeit the like sum of L. 5oo to the person en-
• titled to be returned.” Previous to the calling of the roll for Preses and clerk
at the meeting for election in Berwickshire, anno 1741, protests were taken by
Sir John Sinclair, one of the candidates, against eleven of the freeholders of the
opposite party; and like protests were taken against fifteen of Sir John Sinclair's
friends, by a gentleman in the interest of the Honourable Alexander Hume
Campbell; who, as Commissioner last elected, having called the roll as it stood,
being sixty-six in number, there appeared to be a majority of four for the Preses
and clerk supported by him. Upon this a separation happened, and each party
having adjusted the roll, and elected a Member, Mr Hume Campbell presented
a complaint against Sir John Sinclair, who had acted as Clerk upon the side of the
minority. Answered for Sir John Sinclair, He considered himself as duly elected
clerk, of consequence he did not wilfully, but, bona fide, return to the Sheriff a
person other than him who was duly elected. THE COURT OF Session Sustained
&&6.($
'SECT. 4. MEMBER or PARLIAMENT. 335
the defence; but the House of LoRDs reversed the decree, and found the pe-
nalty incurred. Nota, The Sheriff-depute annexed to the writ, not only the
return of the election by the majority, but likewise that presented by Sir John
Sinclair, for which he was ordered to be taken into the custody of the serjeant at
-arms. Commons Journ. March 19. I741.
These penalties are altered and amended by 16th Geo. II. cap. II. by which
it is statuted, “That if any person presume to act as Preses or Clerk, who is not
chosen by the majority of freeholders present standing on the roll, he shall,
‘ for every such offence, forfeit the sum of L. 200 Sterling to the candidate who
* shall be chosen by the majority.’ $ 14. “And if the clerk (chosen by the
* majority), shall refuse or neglect to return the person elected by the majority
‘ of the freeholders on the roll, or shall return any other person, he shall forfeit
• the sum of L. 5oo to the candidate chosen by the majority.’ $ 16. “And if
• the Sheriff shall neglect, or refuse to annex to the writ such return (made by
“ the clerk duly elected), or if he shall annex to the writ the return made by
“any other person pretending to be clerk to the election, he shall, for every
“ such offence, forfeit L. 5op Sterling to the person returned by the clerk, and
“ chosen by the majority.’
Fol. Dic. v. 3. p. 458.
No 27c.
Pursur Rs.
Abercrombie, Col.
Abercrombie, Col.
Idem
Abercrombie, Col.
Abercrombie
Abercromby, Sir R.
Idem
Abercromby, Hon.
George
Aberdeenshire, Free-
holders of
Alva, Lord
Boyd, Charles, Esq;
Boyes
Boyes
Braco, Lord
Brodie
Brown, William
Bruce, Capt. Henry
Bruce, Robert, &c.
Bruce
Buchannan, John of
Carbeth
I N D E X.


Defenders. PageNo.
William Baird of
Auchmeddan 45; 32
Lesly of Melross 99 72
Eundem II 3 85
James Gordon of
Ardmealie 25I]177
Gordon 99 69
Alewood I 37|1 Io
Eundem 3O2,229
Spiers, &c. 176119
Fordyce of Monks-
hill I 25 99
Freeholders of Stir-
lingshire 306.232
General James Aber-.
crombie of Glas- -
soch Io9 79
Freeholders of Ren-
frewshire 92. 55
Hamilton I38|II2
Vassals of the estate
of Marischall 124 98
Urquhart 229. I 59
John Hamilton II 7; 95
William Dalrymple
of Glenmuir, &c. 6|
Hugh Rose 231,162
Davidson 33 1263
Freeholders of Stir-
lingshire 236,165
PURsuers.
Page|No.
Burn, John William Adam 6, 5
Burns, John John Hamilton 3O2|232
Caithness, Freehold- te
ers of Rose 229158
Callender, John of Mr Robert Bruce of
Craigforth Kennet 323,256
Campbell, Patrick of John Campbell of
Monzie Ardkinglass 87 52
Campbell of Monzie Freeholders of the
county of Stirling 128}ro3
Campbell, Sir Alex.
Bart. Peter Spiers 92. 56
Campbell, Sir Alex.
Bart. David Ballingall 317,249
Campbell of Shaw.
field, &c. Muir of Caldwall zoli 38
Idem Eundem 24O167
Iden Eundem 27Cl191
Idem, Eundem 296,222
Campbell' Stirling IoI] 74
Idem Eundem 1891.28
Campbell, John and
thers John M*Dowall I Ill 82
Campbell, John, &c.|Hon. William Elph-
* ingstone 214|143
Campbell, John, and *
Others William Ingram 215|I44.
Campbell, Hay Malcolm Fleming 277|199
Campbell, Col. Cha. James Macneill of
of Barbreck Kilmory, &c. 299|227
Idem Eundem 3.16|246
Defenness.

º
1N D Ex.


Sinclair
Garden
George Robertson
Scott
Ferguson of Craig-
darroch
William Tytler of
Woodhouselie
Voters of the Shire
of Dumbarton
James Hamilton,
jun. of Hutcheſon
|Capt Duncan Ur-
quhart
Stirling
Sir William Maxwell
Cameron
James Farquhar
Dalrymple
Sir James Reid of
Dara
Eundem
Hill
Elphingstone
Eundem
Hon. Keith Stewart,
&c.
Charles Lyel
Douglas
Gibson of Boreland
Sir Ludovick Grant
Alex. Elphinstone,
Advocate
Capt. Alex. Reid of
Logie
DEFENDERs. Page
Charleſ Gardyne, Esq;291
334
251
308
31 I
I 2
193
2 OO
I OO
II 2
290
26o
2O I
53
I 29||
37
39
No.
27o
176
234
237
34
I 2
13 I
132
73
2 I 3
187
I 33
33
O4.
27
28
292.2 18
I42||
3.18
79
3O9
1 39
89
297
2 3
17
25o
47
5
J
II 5
53
Pursuers.
Campbell, Hon.
Alex. Hume
"Carnegie, Lindſay
Carnegie, James
Lindsay. Esq;
Carnegie, James
Lindſay, Eſq;
Carruthers of Den.
by
Chalmer, Andrew,
of Eaſter Dalry
Colquhoun of Luss
Colquhoun, Sir James
of Luss, &c.
Colquhoun, Mr.James
Cunningham
Cunningham, Wil-
liam
Dalrymple of Oran-
gefield
Dalrymple, Charles,
&c.
Dalrymple, Mr Da-
vid, adv. & Others
Idem *
Davidson
Davidson
Idem
Daer, Lord
Dempster, George &
Others
IDickson
Dickson of Kilbucho
IDonaldson, Robert,
&c.
Douglas, William o:
Bridgetown, &c.
Douglas, William of
Bridgetown
Dunbartonshire,
Fresholders of
Dumfries-shire, Free-
holders of
Dunbar, Sir Patrick
I)unbar, Sir Patrick
1)unbar, Sir Wm.
I) unbar, Sir Wm.
Dunbar, Sir Wm &
Others
Dunbar, Capt. Tho-
mas of Grangehill
Idem
Campbell of Succoth
Ferguson of Craig-
darroch
St Clair of Bremster
Budge of Toftingale
ohn Davidson
Sir James Sinclair
George Sutherland
Capt. Duncan Urqu.
hart and Others
|Eundem
2O 5
294
23o
31 7
249
279
3 I 2
226
l CO
iss
22 O
I61
248
I75
198.
3+ i ;
Pursuers.
Dundas and Laing
Dundas, Ralph,
younger of Manner
Dundas, David
Dundas, Major Alex.
Elliot
Elliot
Erskine, Hon. Henry
Erskine, Hon. James
Ferguson
Ferguson
Ferguson
Ferguson, George
Ferrier, Lieut.-Col.
Ferrier, Ilay
Ferrier, James
Fife, Earl of, &c,
Fife, Earl of, &c.
Fife, Earl of, &c.
Fletcher, General
Forbes, Sir William
and Others
Forbes, Sir William
and Others
Forbes, Sir William
and Others
Fordyce, John of
FGask
Forrester, Thomas
of Dènovan
Forrester, Thomas
of Denovan, &c.
Frazer of Culduthil
Frazer, &c.
| Galbraith, John of
Balgair
Idem
Goldie, Alex. of
Southwick
Goldie
Goodsir
Gordon, Cosmo, Ad-
VOCate
Idem
Gordon, Sir John
Gordon, Sir John
Derzspers. PageNo.
Trail 99| 7o
Craig, and Freehold-
ers of Stirlingshire 238|162
Freeholders of Lin-
lithgowshire 243|I? I
Alex. Ferguson 278|21. I
Edmonstone 322|253
Shaw and Oliver I 2 |IOS
Ferguson 282,207
Hon. John Hope 77| 46
Robert Graham 2792d I
Montgomery 27o 193
Glendonwyne 183|122
Shaw Stewart I Iol 8o
Mungo Campbell 2281.58
Robert Graham 36| 26
William Morehead 222|153
Hon. Henry Erskine 271|194 :
Duke of Gordon, &c. Io; 78
Sir John Sinclair I 37|III
Cosmo Gordon, Ad-
vocate, &c. 3oojz28
James Ferrier 33: 24
William Blair 2OI iſ 34
Sir John M'Pherson, -
Bart. 2 1915o
!
William Tait, &c. 220/152
Urquhart of Mel-
drum 59 36
Sir George Preston
of Valleyfield IoI 75
Andrew Fletcher,
Eſq., &c. 2O5||137
Sir John Gordon 227|röö
Ross of Priesthill, &c. 333 267
Freeholders of Ren-
frew 9) IO
William Cunning-
ham of Ballin-
dalloch 84 51
Eundem 2541 78
Alexander Gordon,
younger of Camp-
elton 207 I40
282|2O6
Hutton 186
Alexander Aberne-
thy of Mayen 283|208
Eundem 3 I2]24o
32] 22
Fraser, &c. 3.241257
I 23 T
I N IO E X. 3



PURsur Rs. DeFExpers. Page No. Pu Rsu e Rs. DEFENDERs. Page|No.
Gordon, Lord Adam|James Duff, Sheriff Kincardine-shire, * #
Clerk of Banff 96 68 | Freeholders of Burnet of Craigie 203||135
Idem Eundem 334,269 || Kirkpatrick, Sir Tho. |-29
Gordon Gordon, 99 71 || mas and Others |Irvine 43. 3 I
Gordon, Sir Robert Knight, Henry Ers.
of Gordonston, &c. Petitioners 113|86|| kine George Robinson 265,189
Gordon Anderson 114 88|| Idem Eundem 33 1262
Gordon Heron 233|I64
Gordon Forbes II 5, 89
Gordon of Newhall Johnston 311,239||Lamont, John, &c. John Alston, junior 216146
Gordon of Newhall William Pulteney, Lanark, Freeholders *
Esq. 315|245 || of |Hamilton I 2 I I
Gordon, James of General James Aber- Idem Eunden 43. 3O
Badenscoth crombie, of Glas- Idem Eunden 26o 186
soch, and Others 320,252 || Laurie, Sloan Hamilton and Camp-
Gordon, Alexander General James Aber- bell 273|196
of Whitley crombie, &c. 32626o || Lindsay, Henry William Drysdale 217|149
Govan, William of Sir George Douglas, Linlithgowshire,
Hermiston Bart., and Others 313|243 || Freeholders of Cleland of Kincavel, 14 15
Idem Eundem 332,265 || Livingston, George Morison of Prestoniº
Grant, Sir Ludovick | grange * 5| 4
and Others Earl of Sutherland 2. 2 || Lockhart, George of Creditors of Kerse-,
Grant, Sir Ludovick|Earl of Fife and i Carnwath well , 9| 8
and Others Others 96 57 || Lockhart, Sir George ** IQ2|[3O
Haldane, George Thomas Traill 256181 *
Hamilton, John Robert Cathcart 330261 || M*Adam, John, and
Hamilton Bogle 138||113 || Others James Logan 116 94
Hay and Cockburn Lord Drummore 187|124|M*Adam, John James Home 2261 5.5
Heron, Capt. Basil John Syme of Meikle Macdowall, William|Thomas Buchanan 65 4o
Culloch 134|Io9|Macdowall, William|George Buchanan 209142
Heron Maxwell 180/120 || Macdowall, William George Crawford 217|148
Hog of Newliston 116 92 || Macdowall, William,
Home Earl of |Stephen Broomfield 103 76|| &c. James Hamilton 257|183
Home, Campbell, &|Homes of Mander- Mackay Houston 1761.18
Kerr St01) 188127 || Idem Eundem 29 12 I 5
Hope Weir, Hon. Mackay, of Strathie, John Riddoch, and
Charles Mr Alex. Bruce 274,197 || and Others Others 28 1/2O3
Houston, Andrew James Ferrier 244|17|3|Mackie, Patrick of Sir William Maxwell
Barmore of Monreith, &c. 29 19
Mackenzie Donald Monro 257|182
Innes of Sandside Sutherland of Swin- Idem Eundem 2922 I4.
zie 82 soft|Mackenzie of High;Freeholders of Crom-
Inverness-shire, Free-Vassals of the Estate field | arty 282,202
holders of of Ross . 127|IoI || M*Leod of Cadboll Sir John Gordon 12o. 96
Irvine General John Adam of Mary- || Mºleod of Cadboll Gordon of Newhall 134|ro7
burgh 333|268||M*Leod of Cadboll Gordon 296,223
M“Leod of Cadboll Ross of Prestonhall,
and Others .243, I 70
Kennedy Cumming ; 6|Malcolm, Sir Wil- *. Ramsay of
Kerr, and other Free- liam of Lochar Kinkell 32| 2 |
holders of Berwick- Malcolm, &c. Commissioners of
shire Redpath and Others 17, 17 Supply of Kirkcud-
Kerr, and other º: e bright 1 14 87
holders of Berwick- Maxwell, Sir John Macmilian 267 90
shire Primrose 127 fo2 1.
4.
I N D E x. .




*
Pursuers. DEFenders. Page|No.
Middleton, Col. John
and his Lady Supplicants 8| 7
• Milne, Alexander Freeholders of Aber-
deenshire 224|154
Moncrieff, Mf David John Erskine, and
Others 6o 37
Monro of Tenanich Mackenzie of Crom-
arty 2.94.2 9
Montrose, Duke of,
and Others Sir James Colquhoun 272|192
Montgomery Cun- *
ningham Hamilton II of 81
Moodie of Milsitter Baikie 256|18o
Idem, Eundem 32 I 254
Muir, Robert, &c. Gilbert M*Adam I 38||114
Murray, Alexander Alexander Muir Mac-
& kenzie 14o II6
Murray, John of Phi. Dr John Nielson 254179
liphaugh
Nisbet, William . Charles Hope 305|23 I
Ogilvie, Sir John of
Inverquharity Sir David Carriegie 81| 49
Idem Eundem 332|264
Orkney, Freeholders
of John Traill 79| 48
Panmuire, Earl of Commissioners of
$ Supply of Forfar-
shire 115| Qo
Perthshire, Freehold-
ers of M*Ara 16| 16
Pringle, Mark Freeholders of Rox-
burghshire 22 I |I 52
Proctor, Patrick Sir David Carnegie 32 1225
Pulteney, &c. Gordon II 5| 9 |
Rankine and Irvine Ramsay of Colvil 296,224
Rankine of Colden Allan Ramsay' of
Kinkel 296,225
Reid of Logie 326259
Roebuck, John, jun. Sir William Cun-
ningham & Others 2 16147
- Ross, George, and Sir Roderick Mac-
Others kenzie and Others 103 77
Ross of Aitnoch and Sir John Gordon,
Others &c. 31.4|244
Rºjº, Freehold-Monro of Culcairn 18812;
erS O
Russel, John William Ferguson 278/200
Scott, Robert John Hamilton, 3 RI 25
Scott, Walter, &c. John Millar 6;| 4 |
Idem Eundem 216|145
Scott, Captain Jolin;Captain John Suther-
and Others land of Forse 67| 43
Pursuers.
Scott, Sir John of
Ancrum, &c."
Scott, Sir John
Sibbald
Sinclair of Freswick
Sinclair of Southdun
Sinclair and Suther-
land
Skene of Skene
Skene, Geo. & Cha.
Skene, &c.
Skene, General
Skene, Col. Robert
Spiers
Stephen
Stewart, Sir Michael
Stewart, Sir Michael
Stewart, Sir Michael
Stewart, Sir Michael,
&c.
Stewart, Mr Walter,
Advocate, & O.
thers
Idem
Idem
Idem
Idem
Idem
Stewart, Honourable
Capt. William
!
Stewart, Sir Archi-
bald, &c.
Stewart, Lieutenant
James
Stewart
Stewart
Stewart, Sir James
Stewart, Alexander
and Andrew
Idem
Telfers
Touch
Turnbull
Wigton shire, Free-
| Derenners.
Sir Gilbert Elliot of
Minto
Sir John Dalrymple
of Cowsland
|Douglas and Kerr
Dean of Guild of
Wick
Sutherland of Forse
Mackay
Graham of Fleming-
ton
David Ogilvie
Wallace
George Sandilands
John Adam .
Campbell
Abercromby
Hugh Crawford
Archibald Campbell
Borough of Paisley
Capt. John Pollock
Mr David Dalrym-
ple, Advocate
Eundem
Eundem
Eundem
Eundem
Eundem
Sir William Maxwell
of Monreith, and
Others
Stewart, Capt. James|Alexander Robertson
Andrew Stewart
Mr David Dalrym-
ple
Gordon
Blair
Daniel Campbell of
Shawfield
Eundern
Ferrier
Heritors of Stirling-
shire
Sir David Carnegie
Stewart of Barven-
holders of Il2F]
Williamson, Joseph John Smith,
Young Johnston
Page|No,
I ? I
97
2 I 2
307|233
1 12| 84
295]22 I
332266
28 J
134|Io8
2421.69
2O8 (41.
264 I88
28612 Io
2.58|| 84
116 93
I3] I 3
I3| 1.4
1291 oë
74. 4.5
19, 18
2O7|139
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