Scottish Court of Session Decisions

Subject_1 MEMBER of PARLIAMENT.
Subject_2 DIVISION V.

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

Claim to be enrolled.

Alexander and Andrew Stuarts
v.
Daniel Campbell of Shawfield

Date: 9 August 1774
Case No. No 209.

A freeholder cannot restrict his title of enrolment, unless a previous claim has been lodged for that restriction.

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In 1760, Mr Campbell was enrolled as a freeholder in the county of Lanark, as apparent heir in the barony of Thankerton to his grandfather, the person last infeft in it, and afterwards, having agreed to dispone the lands of Hallhill, a part of said barony, to Major Alexander Stewart, did, for that purpose, expede a charter under the Great Seal, anno 1772; and having disponed the said lands of Hallhill to Major Stewart in liferent, and himself in fee, and assigned the precept in the charter corresponding thereto, the Major was infeft in this liferent right of the lands of Hallhill; and Mr Campbell was infeft, in September 1773, in the whole remaining lands contained in the crown charter, and also in the fee of the lands of Hallhill, in virtue of the precept in said charter. And, in consequence of this transaction, there was obtained from the Commissioners of Supply a decree of division of the cumulo valuation of the barony, whereby a certain proportion was allotted to Hallhill.

At the last Michaelmas meeting of the county of Lanark, 5th October 1773, the minutes bore, “That Mr Campbell of Shawfield represented to the meeting, that he was enrolled a freeholder on the 17th January 1760, as heir apparent to the deceased Daniel Campbell his grandfather, in all and hail the lands and barony of Thankerton, lying in the parish of Bothwell; that he was desirous to restrict his title of enrolment to certain specified lands, being part of the said barony, and standing valued in the valuation of the book of the county, as therein mentioned; and that the meeting having considered Mr Campbell's request, and certificate produced, they restricted his enrolment, and ordained the same now to be on the above mentioned lands, and his name to remain in the same place of the roll where it now stands; whereupon instruments were taken.”

Messrs Stuarts, two of the freeholders, preferred a complaint to this Court, praying to find, that Mr Campbell ought not to have been continued upon the roll of freeholders, and to ordam him to be expunged therefrom.

The complaint was laid partly upon objections to Mr Campbell's titles, and partly upon irregularities said to have been committed in the division of the cumulo valuation between the lands alienated and those retained by Mr Campbell. To each of these, answers were made; and, at the same time, the competency of the complaint, in the way it has been laid, was disputed.

Upon this point, pleaded for Shawfield;

The adjustment of the rolls of freeholders is entirely regulated by the statute of the 16th of his late Majesty; and the powers of this Court, which has no radical jurisdiction in that matter, can go no further than the statute has thought proper to carry them. And, from the clauses of the statute which authorises complaints to this Court against the proceedings of a court of freeholders, it is evident that there is nothing therein that can support the present complaint; on the contrary, it is very clear therefrom, that the present claim is altogether incompetent and inadmissible.

It is clear, that, when a person is put upon the roll of freeholders, and when no complaint is preferred to this Court against that enrolment, within four kalendar months of the meeting of enrolment, that he must remain on the roll thereafter until an alteration of his circumstances is allowed of by the freeholders, as sufficient for striking him off the roll; and whoever intends to object to him, must lodge his objection in writing two months before the Michaelmas meeting.

Two things, therefore, are necessary, in order to obtain the expunction of a freeholder standing on the roll; in the first place, that there shall be a sufficient objection, arising from alteration of circumstances; 2dly, That this objection shall be lodged two months before the meeting.—That the respondent has undergone an alteration of circumstances is very true, in so far as he has given off a small pendicle of his estate; but it is equally true, that the objection from thence arising is a very insufficient one. 2dly.No objection at all was lodged previous to the meeting, as required by law; and this being the case, the respondent, who has stood upon the roll since 1760, cannot, without a repeal of the foresaid statute, be expunged.

Answered; With respect to the exception taken to the competency of the complaint, as having no authority from the statute of the 16th of the late King, the question is new; and though the complainers will readily admit that it does not, at first sight, seem to fall within the express words of the above-mentioned statute, the complainers contend that the respondent is, by his own fact and deed, barred, personali exceptione, from insisting upon this objection to the competency of the complaint; and that, even allowing the wrong complained of, by continuing the respondent upon the roll, upon a restricted insufficient qualification, not to come within the express letter of the law, however obviously within the purview thereof; for redress of every wrong committed by these Michaelmas meetings in matters of enrolment, it is pars judicis to find, the law comprehends every such case as the present.

For though the complainers may safely admit, that a freeholder, standing upon the roll, is under no positive obligation, upon his being denuded of part of the lands in right of which he stood formerly enrolled, to apply to the freeholders to restrict his enrolment to those parts of his original qualification which he still retains, in respect that, upon such alteration of circumstances, it is competent to any other freeholder, upon objections timeously lodged with the Sheriff clerk, to insist that the freeholder enrolled shall, in respect of the change of circumstances, be struck off said roll, in case the lands retained do not amount to a legal qualification; yet where, as in the present case, the freeholder enrolled, who has aliened part of his original qualification, does ex proprio motu apply to the Michaelmas meeting to have his qualification and enrolment restricted to the lands reserved, it is incumbent upon him to satisfy the meeting, by proper legal evidence, that the lands reserved are of such extent or valuation as entitles him to continue on the roll; and, consequently, that it must be competent to the freeholders to judge whether the remainder entitles him to be continued upon the roll or not; and that the same rules must take place, in supporting the legality of the restricted qualification, as would have taken place in the case of a split new enrolment; that, as supposing the freeholders to have done wrong by striking him off the roll, notwithstanding that his reserved lands amounted to a legal qualification, it must have been competent for him to have applied to this Court, by complaint, for redress of that wrong, under the authority of the above-mentioned statute; so, upon the contrary supposition of the freeholders having sustained the restricted qualification, however improperly, as sufficient to continue him upon the roll, upon the footing of that restriction, it must be equally competent to the other freeholders to sue for redress of that wrong in the same form and manner, by complaint to the Court, as would have been competent to the freeholder himself in the other case. If this were not to be allowed, the most absurd consequences would follow.

Replied, in answer to the plea that the respondent had created a jurisdiction in the freeholders, by claiming a restriction of his original title of enrolment; Though a freeholder should rise up and discover to the meeting, that he has denuded himself of one half or two thirds of his former titles, this will be no ground for turning him de piano off the roll, though it will very naturally lead them to enquire whether he has reserved a sufficient qualification or not; and if they find that it is insufficient, they may lodge an objection to him two months before next Michaelmas, and then bring his title, in regular form, under trial.

The judgment of the Court was as follows;

“The Lords find the restricted enrolment in favour of the respondent, at Michaclmas last, was inept, and not in terms of law; but, in respect no objection was lodged upon the alteration of circumstances, in terms of the act of the 16th of the late King, they dismiss the complaint and assoilzie the respondent; reserving to the complainers still to object to the respondent's title to continue upon the roll, as accords.”

Alt. Dean of Faculty. Alt. Ilay Campbell. Clerk, Campbell. Fac. Col. No 134. p. 355.