Scottish Court of Session Decisions

Subject_1 MEMBER of PARLIAMENT.
Subject_2 DIVISION V.

Procedure in the Court of Freeholders.
Subject_3 SECT. III.

Powers of the Court of Freeholders.

William Douglas of Bridgetown
v.
Captain Alexander Reid of Logie

Date: 2 January 1768
Case No. No 226.

A claimant had lodged his title deeds with the Sheriff-clerk, including a retour, by which they were connected. The Sheriff-clerk had mislaid this retour at the meeting of freeholders, but acknowledged he had had it that morning. The objection of the want of this deed was sustained in the Court of Session, but their judgment was reversed in the House of Lords.

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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 freeholders 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.

When the claim and claimant's title-deeds came to be considered by the freeholders, the above-mentioned retour was amissing; upon which it was objected, That the claimant could not be enrolled, in regard that Thomas Stormont's retour not being produced, which was a necessary part of the claimant'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.

Answered for Captain Reid; That not being able to be present at the meeting 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 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 expressly 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 claimant 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 necessary 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 custody 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 instructed 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 claimant'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 respondent's progress, was not produced to the meeting of freeholders; and find that the freeholders did wrong, in admitting Captain Alexander Reid upon the roll of freeholders, and ordained the Sheriff-clerk to expunge his name from said roll.”

N. B. This judgment was reversed upon an appeal.

For Douglas, John Swinton, junior, & Andrew Crosbie, &c. For Captain Reid, Alex. Lockhart, & A. Elphinstone, &c. Fac. Col. No p. 126.