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 Is a mandate necessary to authorise a claim for a person residing abroad to be enrolled at a meeting of Freeholders?

Major Alexander Dundas
v.
Mr Alexander Ferguson

Date: 23 February 1780

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[Fac. Coll. VIII. 221; Dict. 8837.]

Braxfield. Two questions occur here; 1st, Whether a claim to be enrolled may be made without a mandate? And, 2dly, Whether a complaint for having been denied enrolment, may be made without a mandate? These two questions admit of different considerations. As to the first, I think that no mandate is necessary: The production of the title-deeds is sufficient to imply a mandate, and no hurt can arise to the claimant from the presenting the claim. As to the second, The case is different; for the complainer, if unsuccessful, is liable in penalties. Whenever a person is out of the kingdom, there must be a mandate, for there can be no action without a known pursuer.

President. Why does not some friend of Major Dundas apply to have a factor named for him in his absence? This would remove the principal objection.

Covington. All that the law requires, is a certificate, by the Sheriff-clerk, that a claim has been lodged, and the same is the case as to objections. If the claim is good, so also is the complaint on the claim being rejected.

Monboddo. The person who gave in the claim is presumed to have had authority, and he is presumed to have the like authority to support the claim.

Kennet. No action can be carried on for a person out of the country, without a mandate: How can this be distinguished from any other action?

On the 23d February 1780, “the Lords repelled the objection, and appointed the claimant to be enrolled.”

Act. A. Wight. Alt. W. Baillie, Ilay Campbell.

Diss. Alva, Kennet, Braxfield. Justice-Clerk and Hailes did not vote.