Subject_1 MEMBER of PARLIAMENT. Subject_2 DIVISION IV.
Decisions common to qualifications upon the old extent and valuation.
Subject_3 SECT. V.
Freeholders must be infeft on proper Titles, and their infeftments recorded, year and day before Enrolment.
John Buchanan of Carbeth v. Freeholders of Stirlingshire
Date: 17 January 1755 Case No. No 165.
It is sufficient that the infeftment entitling to a vote, be recorded a year before application is made for being enrolled, altho' not within year and day of the test of the writ for calling a new Parliament.
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A complaint being made to the Court of Session by John Buchanan of Carbeth 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 before the test of the writ for calling a new Parliament. It was answered, That 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 present 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 complainer'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 registered a year before the day upon which he craved to be enrolled.
Fol. 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 payable out of the lands of Bothkennar.
It was objected by William Cuningham of Ballendalloch, one of the freeholders, That he could not be enrolled, 1mo, 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 objection 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 necessary that the instrument of sasine be registrated one year before the enrolment be demanded, which it was in this case; and as posterior a derogant prioribus, the act of the 12th of Qeen Anne is in so far repealed.
Answered for William Cuningham, That the maxim posteriora derogant prioribus only takes place where the two things enacted by different statutes are incompatible: 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 privilege of being enrolled; and had not another objection stood in the way, the freeholders would have enrolled the complainer at the said meeting, after the election of the Member of Parliament was over; and though he had been enrolled 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, because 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 King 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 September 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, end the meeting for election was upon the 10th 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.
The arguments upon the second objection were the same with those mentioned in No 52. p. 8647.
‘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 sufficient 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.’
Act. And. Macdowall, Ja. Dundas & Bruce.Alt. Lockhart, And Pringle, & Jo. Grant.Clerk, Forbes.
Fac. Col. No 129. p. 192.
