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.

Robert Montgomery
v.
George Ferguson

Date: 19 February 1780

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[Folio Dict. III. 428; Dict. 8820.]

Braxfield. The catholic right is a blanch duty. That cannot be divided. The vassal is not bound to pay part of a penny Scots; and, if so, the superiors are not in possession.

Elliock. The possession is just as good as the possession of any blanch superiority.

Monboddo. The freeholders had not only power, but right to inquire into the possession. When it appears ex facie that there neither was nor could be possession, the freeholders did right to refuse enrolment.

Covington. My doubt is as to the power of the freeholders to challenge.

Alva. The freeholders are entitled to inquire whether the subject claimed on exists.

Kennet. A superior is not entitled to impose a number of superiors on his vassal. The question is, Whether this can be held to be jus tertii as to the freeholders? I incline to think that it is not: the superiors must show that their feudal right is good. Sir John Anstruther does not consent, but, on the contrary, objects. Besides, here was a thing which could not be divided.

President. I could never bring myself to think that the subtle arguments as to jus tertii were solid. The House of Lords has gone far. I will go as far, but no farther, in support of fictitious votes. Has the House of Lords ever said that the vassal may not object? Here he does object. It is admitted that Lord Eglinton did an illegal thing, but that it may be good if the vassal consents. Now the vassal does not consent, but opposes. The objection to the splitting the blanch-holding is also strong. The charter does not convey the lands.

On the 29th February 1780, “The Lords dismissed the complaint.”

Act. A. Wight. Alt. Ilay Campbell. Reporter, Stonefield.

Diss. Elliock; non liquet Covington.