Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 MEMBER OF PARLIAMENT.
Subject_3 Effect of a restricted enrolment upon the request of the party at the Michaelmas meeting, without a previous claim being lodged for that restriction. Is a complaint of such enrolment, at the instance of other freeholders, competent under the authority of the Act 16th Geo. II., where no objections were lodged upon a change of circumstances?

Alexander and Andrew Stewarts
v.
Daniel Campbell of Shawfield

Date: 6 August 1774

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[Faculty Collection, VI. 355; Dictionary, 8834.]

President. The proper way to try the question is by a claim and objection. This case falls not within the Act of Parliament.

Alemore. To speak in the style of the day [the races] I should be sorry to see a horse cut out who is likely to yield so much sport. The case of restricting is within the spirit of the Act. Were it otherwise, the consequences might be dangerous to the rolls. It is said that an objection may still be given in. Answer, With less ingenuity than is used in this case, Shawfield might be kept on the roll notwithstanding any objections.

President. In my opinion the restriction at the last Michaelmas meeting goes for nothing.

Justice-Clerk. From the nature of the thing a gentleman enrolled upon a large barony may have occasion to dispone away a part of it, and may restrict his claim to the residue. The freeholders ought not to take into consideration the consequences of this. All that they ought to have done was to record the fact. Instead of this, they ordered Shawfield to stand on the roll for his part reserved. I cannot imagine that the freeholders can be excluded from objecting, for that the legal notice was not given.

Monboddo. If the restriction was to be considered as an enrolment, I should be of Lord Alemore's opinion.

On the 9th August 1774, “in respect that the restriction was inept, the Lords found no necessity to determine on the complaint, reserving to parties to object on change of circumstances.”

Act. A. Lockhart. Alt. R. M'Queen.