Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 FREEHOLDERS.
Subject_3 Equivalent to a refusal to enrol, where the only two Freeholders who attended a Michaelmas meeting evaded taking cognisance of a claim for enrolment which was duly lodged, and moved to them by the clerk, on the pretence that neither the claimant, nor any person for him, appeared to support his claim; and that a motion made to them by another Freeholder, while they were in the court-room, to take the claim under consideration, was too late.

Colonel Charles Campbell of Barbreck
v.
James M'Neil and James M'Conochy

Date: 24 June 1773

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[Dictionary, 8849.]

Auchinleck. I never saw so gross a thing done by any persons pretending to the name of gentlemen.

Hailes. It would be a very convenient doctrine, for any set of freeholders who are all of a side, were they permitted to hear, in silence, any claim made, without either granting or refusing, and then to plead that they did not refuse to enrol; and, therefore, that the law gives no remedy. This neither is nor can be the sense of the statute. It is a denegatio justitiæ, and a ground of advocation, if a Sheriff permits a process to lie before him unadvised, although he does not refuse to give judgment.

On the 24th June 1773, “The Lords found that the freeholders had done wrong in not enrolling Colonel Campbell; and therefore ordained him to be enrolled, and found expenses due.”

Act. Ilay Campbell. Alt. W. Campbell.