Scottish Court of Session Decisions

Subject_1 MEMBER of PARLIAMENT.
Subject_2 DIVISION VI.

Summary Complaint to the Court of Session.
Subject_3 SECT. III.

Of Objections not stated, or Evidence not produced to the Freeholders.

Patrick Proctor
v.
Sir David Carnegy

Date: 14 May 1796
Case No. No 255.

A claimant having produced, before a court of freeholders, a disposition from Com missioners, containing an assignation to a precept of sasine in a Crown charter in favour of their constituent, and his claim being been rejected, because he did not produce the commission under which the disposition was arounded, it was found, that the objection might be removed by his afterwards producing it in the Court of Session.

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Patrick Proctor claimed to be enrolled as a freeholder in Forfarshire, and produced a charter from the Crown, containing lands affording a freehold qualification, in favour of the Earl of Strathmore; a disposition thereof to himself by Thomas Lyon and James Dundas, the Earl's Commissioners, containing an assignation to the unexecuted precept in the charter, and an instrument of sasine taken in virtue of it in his favour.

But he did not produce the Earl's commission to Messrs Lyon and Dundas; and although it was referred to in his claim, neither its date nor that of its registration were specified. Nor did it appear from his sasine, that it had been produced by his attorney to the Bailie when the infeftment was taken.

To these titles Sir David Carnegie

Objected; A claimant before his enrolment, must produce to the freeholders ‘the whole titles and vouchers of his qualification;’ 16th George II. Mr Proctor ought therefore to have produced Lord Strathmore's commission to Messrs Lyon and Dundas, as forming an essential part of his titles; because without it, he does not connect them with the charter on which his infeftment proceeds; for it is as essential to their validity, that the commissioners should be connected with the charter, as that he should connect himself with then by the disposition; 17th February 1767, Sir John Gordon, No 157. p. 8874.; 10th February 1781, Moodie, No 180. p. 8806.; 23d February 1790, Nisbet, No 231. p. 8855.

2do, The act 1693. c. 35. declares, “That all sasines in favour of a diaponee, different from the person to whom the original precept is granted, shall be null, unless the titles by which the former has right to it are deduced in the the instrument.” Mr Proctor's sasine is therefore void, from its neither narrating the commission to Messrs Lyon and Dundas, nor stating that it was exhibited by his attorney to the Bailie. Indeed, independently of a statute, a Bailie, at common law, cannot give a valid infeftment, unless the attorney shew a complete right to the precept in the person of his constituent; Craig, 1. 2. d. 7. § 8.; Stair, b. 2. t. 3. § 16.; which he certainly did not do in this case, merely by producing the disposition by Messis Lyon and Dundas, without the commission empowering them to grant it.

Answered; 1mo, The commission from Lord Strathmore formed no part of Mr. Practor's title of enrolment. It was at best merely a link in his progress, which it was sufficient to refer to in his claim, and which he was not bound to produce; 10th February 1781, Haldane, No 181. p. 8806.

2do, In all cases, the delivery of the precept of sasine, and of a conveyance to it ex facie regular, is a sufficient warrant to the Bailie to give infefment; Stair, b. 3. t. 2. § 17.; Ersk. b. 2. t. 3. § 35.; Office of a Notary, p. 71. and 76.; and in practice nothing further is required. Nor can any harm arise from this; because, if it should afterwards appear that the conveyance of the precept flowed a non habinte, the sasine will be void; while, on the other hand, to sustain this objectio, would strike at the rights of many landed proprietors.

The first only or these objections was stated before the freeholders; and they having sustained it, Mr Proctor presented a petition and complaint against their judgment, and, at the same time, produced an extract of the commission to Messrs Lyon and Dundass.

On advising the complaint, with answers for Sir David Carnegie, in which the objection to Mr.Proctor's sasine was first made, a majority of the Court thought the decision of the freeholders right on the first objection, which rendered it unnecessary to determine the second.

But on advising a reclaiming petition for Mr Proctor, with answers, the Court altered their opinion, and thought both objections should be repelled. The commission by Lord Strathmore, (it was observed) forms no part of Mr Proctor's titles, although, in order to support them, he is no doubt bound to produce it, if requited. But as a claimant may not have it in his power instantly to exhibit collateral or suppletary evidence of this sort, it is fixed by the case of Gordon, No 160. p. 8876, that if he should be rejected by the freeholders for not doing so, he may remove she objection, by afterwards producing it in this Court.

The objection to Mr Proctor's sasine, is neither sanctioned by the statue 1693, nor by practice.

The Court unanimously repelled the objections.

For the Complainer, Lord Advocate Dundas, Solicitor-General Blair, Geo. Fergusson, Ar. Campbell jun. Alt. H. Erskine, Hay, M. Ross, Gillies, Robertson Scott. Clerk, Home. Fol. Dic. v. 3. p. 434. Fac. Col. No 214. p. 505.