Scottish Court of Session Decisions

Subject_1 JURISDICTION.

Claims of D of Douglas, E. of Sutherland, &c.

1748, Jan. 12.
Case No. No. 43.

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Two very general questions were before the Christmas vacation argued at the Bar very fully because many of the claims depended on them; viz. 1st, As to regalities evicted or heritable Sheriffships granted since the acts of James II. 1455, Whether ratifications in Parliament were sufficient to sustain them? or 2dly, If the positive prescription would make them valid? and informations being by order given in were this day reported by Arniston as last week's President, and after long and full reasoning (but with a thin Bench) we sustained all such regalities as had been ratified in Parliament, and sustained the positive prescription as to both, but gave no judgment on ratifications of Sheriffships, the Bar not seeming to insist upon it, (at least not at the pleading) though I believe our opinion would have been the same as to them if it had been insisted for. Against the first part of the interlocutor were Arniston, Tinwald, (then in the chair) Monzie, and Murkle. For it were Minto, Drummore, Haining, Strichen, Shewalton, and I. Dun and Kilkerran (who were all that we could expect present) were indisposed. My reason in short was, that the question neither was nor could be of the power of the Parliament but of their intention. That at first we would not judge of reductions at the instance even of third parties after ratifications in Parliament, as appears by our reference to Parliament 16th December 1561, betwixt Earl of Caithness and Earl of Huntly, in our sederunt-book, and others, that gave rise to act 18th 1567,—that from that time it was their declared meaning in the acts salvo, that by these acts they did not hurt third parties unheard. Notwithstanding of which where by the tenor of the acts, the contrary appeared, we never would judge contrary to them, witness 10th December 1622, Earl of Rothes against Gordon, and other cases therein quoted. And as to the Crown, King James II.'s act had provided a special remedy, and which was carefully followed in all after annexations, least the Parliament should be led in to ratify alienations of annexed property without knowing it was annexed. But still, if the Parliament with their eyes open should ratify such alienations and dispense with that law, it would be no objection that it was only a ratification; otherwise the presumption was, that the Parliament did not mean to annalzie annexed property; that such was the meaning of the annexations both by James II. and subsequent Kings, appeared by our act of sederunt 14th March 1594, afterwards made an act of Parliament 247. 1597, and the exception contained in it, by which it is plain that the doctrine since adopted by some lawyers that a previous dissolution was essentially necessary was not then true. But in the ratifying erections of regality the Parliament could not be misled, for though they might not know that lands in a ratification had before been annexed to the Crown under the general name of some earldom, lordship, or barony of different name, yet they behoved to know that the erection of a regality was what could not be done without their consent; and therefore, as there could be no question of the power of King and Parliament, I thought in that case there could be none of their intention. Besides, I did not think the Parliament meant those ratifications to have no effect, and I could not dispute the Parliament's power to give them all the effect they intended. We seemed to agree that the claimants were mistaken as to the Lords of articles, and that they were not always chosen by the Parliament, often before it. But how the private acts were passed in ancient times we could not know,—probably they must have first passed' the articles where the Parliament sat but one day. Vide my Notes on the back of Mr Murray of Philiphaugh's claim as to the point of the positive prescription,—we were unanimous.