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Scottish Court of Session Decisions >>
James Ferrier v The Hon. Henry Erskine. [1781] Mor 8821 (23 January 1781)
URL: http://www.bailii.org/scot/cases/ScotCS/1781/Mor218821-194.html
Subject_1 MEMBER of PARLIAMENT. Subject_2 DIVISION IV.
Decisions common to qualifications upon the old extent and valuation.
Subject_3 SECT. VIII.
Splitting the Superiority.
James Ferrier v. The Hon Henry Erskine.
Date: 23 January 1781 Case No. No 194.
Found in conformity with Ferguson against Montgomery, supra, but reversed up on appeal.
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The barony of Drumry, in the county of Dumbarton, is held blench by the Earl of Crawfurd, off Lord Graham, eldest son of the Duke of Montrose, for payment of eight pennies Scots, or a pair of spurs.
The superiority of the forty-shilling land of Cloverhill, part of that barony, was conveyed by Lord Graham to Mr Erskine, with an assignation to the rents and casualties, and with powers to Mr Erskine to enter and receive vassals, &c. Upon these lands Mr Erskine was enrolled as a freeholder in the county of Dumbarton.
In a complaint against this enrolment, in the name of Mr Ferrier, it was maintained, That the blench duties, payable by Lord Crawford the vassal, for the whole barony, were not divided; and that Mr Erskine, therefore, had not a separate possession of the lands upon which he was enrolled.
Answered for Mr Erskine, In blench holdings, the duty, payable by the vassal, is merely an acknowledgement. As this acknowledgment is incapable of division, when a partition of the superiority takes place, the vassal must perform it to each superior. The vassal may object to the multiplication of superiors; but it is jus tertii to the freeholders.
Observed on the Bench, The superiority of a tenement holding blench can not be divided. A blast of a horn, a rose, a pair of spurs, cannot be delivered in parts. When a part of a superiority of this nature is disponed no possession can be attained on it. A qualification founded thereon is purely nominal and fictitious; and Mr Erskine's enrolment, on this account, was unwarrantable.
“The Lords found, that the freeholders did wrong in admitting Mr Erskine to the roll,” &c.
For Mr Erskine, David Græme.Alt. Craig.
Fol. Dic. v. 3. p. 428. Fac. Col. No 21. p. 42.*** This case was appealed.
The House of Lords, 17th April 1782, “Ordered and Adjudged, That the appeal be dismissed, and the interlocutor complained of reversed; and it is declared, that the appellant was entitled, in virtue of his titles, to be enrolled on the roll of freeholders for the county of Dumbarton.”
