Scottish Court of Session Decisions

Subject_1 MEMBER of PARLIAMENT.

When the personal attendance of the lesser Barons in Parliament was at first dispensed with by James I., and the privilege of sending Commissioners was substituted in place of that attendance, all the vassals of the Crown, however small their freeholds, were entitled to vote in the election of these Commissioners. This privilege was afterwards, by James VI., limited to those who had a forty-shilling land in free tenantry, and resided within the shire; and was again, by Charles II., extended to those possessed of lands holding of the King, of ten chalders of victual, or L. 1000 Scots of real rent. Afterwards, however, by the statute 1681, which is now, in material points, the rule for determining the qualifications of elections, it was enacted, that none should be allowed to vote but those “who stood publicly infeft and possessed of a forty shilling land of old extent, holden of the King or Prince, distinct from the feu-duties in feu-lands; or where the extent did not appear, stood infeft of lands liable in public burden for his Majesty's supplies for L. 400 of valued rent, whether kirk lands now holden of the King, or other lands holding feu, ward, or blanch, of his Majesty, as King or Prince of Scotland.”

The only exception from the regulations of this statute, is the peculiar constitution of the county of Sutherland, where, by immemorial and continued usage, the right of electing, and being elected, is competent to vassals holding of a subject superior. By statute 16th, Geo. II., such vassals, however, must be possessed of lands paying public burdens to the amount of L. 200 Scots of valued rent. And the same statute contains certain special enactments regarding those anomulous qualifications.

With regard to the manner of keeping the roll of electors - the time of holding the annual Michaelmas head-courts - the form of procedure in those courts - the remedy for those aggrieved by their decisions, by summary complaint to the Court of Session - and the penalty if such complaint is dismised - the statute 16th Geo II. cap. 11. is the rule in all those particulars.

Corruption and perjury in the electors are restrained by penalties contained in act 2d, Geo. II. cap. 24.; and the penalty for the Clerk of Court making a false return, is statuted by act 7th, Geo. II. cap. 16.

Fol. Dic. v. 3. p. 401.
Subject_2 DIVISION I.

Privileges.

Lady Greenock
v.
Sir John Shaw of Greenock

Date: 5 January 1709
Case No. No 3.

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The Lords ordered a process at the Lady's instance against her son, Sir John Shaw, to be enrolled, albeit he was absent at London as a Member of Parliament, and claimed his privilege; because, the privilege that Members of Parliament cannot, during the sitting thereof, be sued at law, hinders not to expede the preliminaries or preparatories of processes, which pass of course.

June 22.—The Lords, January 1709, having ordained a process at the instance of the Lady Greenock and her son, to be enrolled, albeit the defender was attending the Parliament, in respect the advocate that was marked for him at the first calling, refused to take out the process; when the cause came in by course of the roll, the defender alleged no process, because, he had neither seen the process, nor was obliged to see or notice it, during the sitting of the Parliament, conform to the 12th and 13th William III. cap. 3.

Replied for the pursuer, That statute doth not expressly provide, that process should not be commenced and prosecuted against members of Parliament, during the sitting thereof, but only that suits may be commenced and prosecuted after the rising of Parliament; which argument a contrario, and from implication, ought to be understood of commencing and prosecuting cum effectu by judicial acts, that oblige the party to appear in judgment, and make defences under a certification in case of failzie; and not of the preliminaries of a process for bringing it into judgment, which are performed by the clerk, without trouble or diversion to the party. And albeit by the English law, effectual prosecution commenceth from the day to which the subpæna is served, or at which the defendant is to appear, and give in his answers or defences; yet in Scotland, where the first diet of appearance is not peremptory, and the defender is not obliged to put in defences till after the usual induciæ of seeing, returning, and enrolling the process, a cause cannot be understood commenced till after elapsing of that preparatory interval, which is not observed in the English form, to which the statute is adapted, 2do, The most that the defender can claim, is only to see the process six days, without any new enrolment; seeing after returning of the process, he is presumed, and ought to be ready. The enrolment was not introduced as a privilege to the defender, but only to prevent anticipating of causes, by some pursuers unjustly getting the start of others whose processes were first returned; and the rest of the lieges who are pursuing causes have no ground of complaint, seeing the Lady Greenock's hath already run the course of the roll, by order of the Lords' interlocutor.

Duplied for the defender, When a process is returned by an advocate as not for the party; or when the advocate marked for the party refuseth to take out the process, it ought to be called de novo; and enrolled in the regulation roll. The act of Parliament doth not distinguish betwixt preparatory interlocutors, and those in causa; and though it may be questioned, if citations passing of course may he sustained, sure it is, that no interlocutor of a judge can be pronounced against a Member of Parliament claiming his privilege. So in the case of Sir Andrew Kennedy against Sir Alexander Cumming, the Lords would not so much as ordain Sir Andrew's petition offered against Sir Alexander, to be seen and answered, in respect the latter was attending the Parliament. See No 6. p. 8567.

The Lords sustained the dilatory defence founded on Sir John Shaw's being a member of Parliament; and therefore found the process must be given out to be seen and enrolled again in common form.

Fol. Dic. v. 1. p. 572. Forbes, 298. 335. *** Fountainhall reports this case.

January 6. 1709.—Dame Heleonora Nicolson pursues Sir John Shaw of Greenock, her son, in a process for payment of her bygone jointure; and having called her summons, and an advocate being marked, she gave out her process to him to be seen, who returns it back to her doers, without a return in writing on the back of it; for want whereof she could not get it enrolled, and so requires him by a notary before witnesses to give her a return in common form, which he refused, in regard Sir John having gone to attend the Parliament as a Member in the House of Commons, he was absens reipublicæ causa, and not obliged to answer in any process. Upon this, my Lady gave in a bill, craving, that his advocate might be ordained to give a return of her process, to the effect she may get it enrolled; and, in case of his refusal, to cause enrol it of the date of the instrument and protest taken against him. Answered for Sir John Shaw, He opponed his privilege, which secured him against any procedure, either in form or matter till his return; and the law, by the regulations 1695, had provided a remedy in this case, where none appeared for a defender in a process to crave a sight, it was a summons in absence to be enrolled in the regulation-roll, which my Lady might do; and no sort of interlocutor can be pronounced against him during his attendance of the Parliament. The design was to stop its enrolment till the summer-session, and then it could not come in by the course of the roll till November 1709, and then his Parliament privilege revived; and if he had interest to get himself chosen to the next triennial Parliament again, he might postpone and delay her long enough. Replied, It was time enough to found upon his privilege, when my Lady insisted in her cause. All she craved at present was only the initialia et præparatoria judiciorum, which neither infringed nor encroached on his privilege, if he had any; and when she craved a decreet, then was the season to propone his exception, as impeditiva litis ingressus, I am not bound to answer, because I am a member of Parliament. Some of the Lords doubted if there was any such privilege competent, for it is certain, when we were an independent sovereign kingdom by ourselves, the members of the Scotch Parliament had no such privilege. The Lords, by plurality of six contra five, found this defence not receivable hoc loco, and that the privilege could not extend to this case; and therefore ordained the cause to be inrolled of the date of the instrument.

Fountainhall, v. 2. p. 478.