Subject_1 MEMBER of PARLIAMENT. Subject_2 DIVISION IV.
Decisions common to qualifications upon the old extent and valuation.
Subject_3 SECT. I.
Vassals in lands forfeited by the superior. - Fishings may be joined to lands to complete a qualification. - Proprietor pro indiviso. - Feu-duties payable out of church-lands. - Mortified lands sold. - To give a qualification there must be a feudal vassal in the lands. - Bodies corporate. - Minors. - Exchange of pieces of land. - Infeftment in virtue of a clause of union, and dispensation in a Crown charter. - Burgage lands sold by the burgh. - Where the superior is unentered. - Person divested by a trust-deed. - The claim must describe the title for enrolment. - Eldest sons of Peers. - Charter granted by a factor loco tutoris. - Roman Catholics. - Officers of the Revenue.
Alexander Murray v. Alexander Muir-Mackenzie
Date: 16 May 1790 Case No. No 116.
A claim for enrolment by a liferent, caught to specify the nature right.
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In the claim exhibited for Mr Murray, in order to his being enrolled among the freeholders in the county of Perth, it was stated, that “he was publicly infeft in all and whole the half of all and whole the lands of Ruskie, with the manor-place thereof,” &c.
The dates of a Crown charter, in which these lands were granted to Lord Napier, of the assignation by his Lordship in favour of Mr Murray, of the infeftment which followed, and of its registration, were accurately mentioned; the valuation of the lands was also precisely stated.
Instead of having right to the property or superiority of the lands, Mr Murray was merely a liferenter of the superiority, the fee belonging to his brother, The freeholders, therefore, refused to enrol him. And a complaint being preferred to the Court of Session, Mr Muir Mackenzie, by whom the objection had been made,
Pleaded, By the enactment 16th of his late Majesty, it was provided, “That, in order to prevent surprise at the Michaelmas meetings, every freeholder who intends to claim at any subsequent Michaelmas meeting of the freeholders, shall, for the space of two calendar months at least before the said Michaelmas meeting, leave with the Sheriff or stewart clerk a copy of his claim, setting forth the names of his lands, and his titles thereto, with the dates thereof, with the old extent or valuation upon which he desires to be enrolled; and in case of his neglect to leave his claim as aforesaid, he shall not be enrolled at such Michaelmas meeting.”
A claimant cannot be thought to comply with this regulation, by merely stating the names of his lands, and the dates of the writings to be produced by him, leaving the freeholders from thence to discover the nature of his qualification, and the peculiar character in which he has a title to be enrolled. Least of all can it be thought, that a discription of titles, quite inconsistent with the the true nature of his right, is to be admitted. Here then the claim preferred for the complainer was wholly incompatible with the purpose of the law, the statement exhibited by him having, as it would seem, been purposely so framed, as to give the freeholders a more favourable opinion of his qualification than it truly deserved. This reasoning is supported by a decision, 3d March 1773, Gordon against Abernethy of Mayen, infra, h. t.
Answered, The statute requires a specification of the names of the lands, the titles of the claimant, the dates of those titles, and, lastly, the old extent or valuation. The claim here given in was therefore precisely agreeable to the directions of the law. It is no where said, that the nature of the estate, whether as a liferent or fee, a wadset, a right of apparency, or of courtesy, should be accurately defined. Nor is this at all necessary, as it must be presumed, that the freeholders, after the enumeration already mentioned, will be fully able, by inspecting the public records, to prepare themselves for giving a determination.
The former precedents, so far from enlarging the operation of this law, which is of a correctory nature, have tended to restrain it within the narrowest bounds. Thus it was found, that an omission to mention the date of a retour was not fatal to a claim for enrolment. And in the same manner, where the date of one charter had been erroneously stated, while that of another was wholly omitted, the claim was nevertheless sustained. In the present case, it was easy, from the writings specified in the claim, to discover that the claimant's right was a liferent, though as free from the challenge of nominality as any right of the same nature can be. The case referred to on the other side was very different from the present one, both the dates of the titles, and the names of the lands, having been omitted, Wigton on Elections, 4to edit, p. 151. See Appendix.
A feeble attempt was made to shew that Mr Murray's qualification was nominal and fictitious. But the judgment of the Court proceeded on the defect of the claim exhibited for him, which did not appear to fulfil, in any reasonable manner, the purposess of the statute.
After advising the complaint, with answers and replies,
“The Lords dismissed the complaint.”
A reclaiming petition was afterwards preferred, and followed with answers, but the Court adhered.
Act. Rolland, Macleod-Bannatyne.Alt. C. Hay.Clerk, Sinclair.
Fol. Dic. v. 3. p. 413. Fac. Col. No 129. p. 250.
