ther this action was competent to mere freeholders'; and in two instances in which actions of reduction of divisions of

1 The following case occurred in the year 1767. An action of reduction of a decree of division of Commissioners of Supply of the county of Cromarty, was brought by a freeholder on the roll. Thereafter a new action of reduction was brought of the same decree, and at the instance of the same pursuer, calling certain persons who had been omitted in the former action, and who had been enrolled on the lands valued by the decree; and concluding, inter alia, to have it found and declared that these parties were not entitled to stand upon the roll, and that they ought to be expunged accordingly. A third process was brought by the same party, for having it declared that certain lands, which had been valued by this decree, did not lie in the county of Cromarty, and that certain parties who had right to those lands should not be admitted to the roll in that county. These three processes were conjoined. Pending the litigation, the pur. suer of these actions was struck off the roll of freeholders at a Michaelmas meeting, on the ground of an alteration of circumstances. He had, however, lodged a claim, praying that his qualification should be restricted to certain lands there mentioned: and upon this claim being rejected at the same meeting, he complained to the Court of Session. In these circumstances, the defenders in the action of reduction, who had, even before this change in the pursuer's circumstances, objected to his title to pursue, brought forward a new objection, on the ground that he was no longer on the roll of freeholders. In answer, the pursuer maintained, that, as he had complained against the judgment of the freeholders rejecting his restricted claim, it could not be taken for granted that he had no right to be on the roll. The Court sustained the pursuer's title in the conjoined processes. The defenders having been afterwards assoilzied on the merits, the case was carried by appeal to the House of Lords, when the respondents urged the following objections. It was argued, 1st, That the demand made of striking persons off the roll by a declaratory action at common law, was not founded on the law of Scotland; the Court of Session having no jurisdiction with regard to the roll of freeholders except by express statute, which limits and defines the mode of trying such questions, viz. by summary complaint within four months. 2d, That the pursuer had no title to insist in these suits as a freeholder, his object not being to obtain any relief with relation to the land-tax. It was answered on the part of the appellant, that the Court of Session had an inherent jurisdiction in matters of enrolment, independent of statute. The House of Lords pronounced judgment to the following effect: It having been strongly objected that three actions brought in this cause are incompe❝tent for the relief thereby prayed, at the instance of the appellants against

valuation were brought by freeholders, their title was object-. ed to, on the ground that, in a question with them, a formal decree of the Commissioners of Supply must be held as porbatio probata and unchallengeable. This objection was, however, repelled in both cases, and the title of the freeholders sustained; some of the Judges assigning as the ground of their opinion, the patrimonial interest which freeholders had to preserve the purity of the roll 1.

'the respondents, and do not lie: and the said objection having been argued upon points of great consequence, and the Court of Session having 'given no opinion upon such points, it is ordered, by the Lords Spiritual ' and Temporal in Parliament assembled, that the cause be remitted back 'to the said Court of Session in Scotland, without prejudice to the merits, "if the actions should be found to lie.' The case having returned to the Court of Session, and having been remitted to Lord Kennet, Ordinary, to do therein as he should see cause, his Lordship pronounced the following interlocutor: 5th July 1768.—Having heard parties' procurators upon the competency of the action of reduction, and objections to the pursuer's 'title to insist therein, finds the action competent for reducing the de'creet of valuation, and sustains the pursuer's title to insist in the action.' In this judgment all parties acquiesced. Sir John Gordon v. Lord Elibank and others, decided 11th February 1767, in the Court of Session on the point of title, and 2d March 1768 in the House of Lords; Session Papers and Appeal Cases.

It will be observed, that, subsequently to this, in the year 1774, the judgments which follow in the text were pronounced, by which the competency of actions of reduction of decrees of valuation were sustained, at the instance of freeholders, so that that point may be considered as fully settled; but the remit of the House of Lords in the case just mentioned, and the circumstance that Lord Kennet's interlocutor went no farther than to find the action competent for reducing the decreet of valuation,' must shew that serious doubts were entertained as to the competency of the other declaratory conclusions of the different processes in that case. See, however, the opinions of some of the Judges as to the competency of a common law remedy, in the case of Hope Weir v. Bruce, 14th February 1771; Hailes.

1 Ross and others v. Mackenzie and others, 10th March 1774; Fac. Earl of Fife and others v. Duke of Gordon and others, 16th June 1774; Fac; Wight, p. 185. In the former of these cases there were two objections; Ist, That the Court of Session had no jurisdiction to review the proceedings of the commissioners'; and, 2d, That the freeholders had no title

6

About the same time, a similar question occurred relative to the title of freeholders to insist in a process of declarator, to pursue. Both objections were repelled. The following notes of the opinions of the Judges are from the Session Papers of Sir Ilay Campbell. 'Hailes. No doubt of first point. Would have had some doubt of second 'point seven years ago, but too late.-Gardenstone. Same.-Kennet. Same. 'Distinction between ex facie and not, proper. Errors in procedure suffi'cient, though not null in point of form. Proper that there should be

a cheque. Pitfour. Same. A matter of greater consequence than real 'property. Distinction between ex facie and not, proper. Things that ' require proof and what does not require proof.-Monboddo. If have a ju'risdiction to correct them, extraordinary if no person has a title to 6 challenge, if do wrong.-Justice-Clerk. Multiplicity of questions. Wish 'to return to principles. Not intended by those who formed the act 16th 'to hang up the short and summary question of valuation, either by complaint or process. Decree of division, where formal, equal to a retour. 'Could a freeholder object forgery or false evidence to a retour.-Pitfour. Do not differ as to principles; but if any thing ex facie, proceed upon 'that. Will not delay the matter for a proof. If prevails in reduction, this an alteration of circumstances.-Justice-Clerk. Defect in constitu'tion ought to be corrected by legislature. Acts and commission draw ' out to great length. Some challenges may be made against real pro'prietors.-Colston. Should be glad that we had no jurisdiction, without ' endangering property of the subject. Remit with instructions. Power ' of review of commission of Parliament, unless where a final power is given. Not a committee of Parliament, but commissioners or judges appointed by Parliament. Admitted that competent to parties patrimonially concerned. This proves jurisdiction. Suppose an estate purchased 'at judicial sale of L. 10,000, and purchased by two different persons, and 'commissioners divide, so as to give one L. 7000 and the other L. 3000. 'Suppose a superiority only, not merely a political interest, will sell higher in a market. If jurisdiction admitted, cannot dispute title. Patri'monial interest that freeholders cannot be increased upon him. Ex facie, ' &c. A distinction attempted here between powers and legality, but no 'foundation. Null if contrary to proof. Practice of Court. Objections ' appearing ex facie. Cases in House of Lords. Many causes now de'pending on it. Only question is, whether even proofs ought not to be ' allowed. In Lord Fife's causes, proofs about mills. Do not think there 'can be a reduction at instance of freeholder till claim entered.-Kames. Decreet of commissioners, like any other decree, good till reduced. 'Court of Session can reduce. Freeholders ought to put him on roll, but may be challenged here. Question at whose instance? Valuable pa

6

that certain sasines, on which claims of enrolment were made, had not been truly registered of the date shown by the certificate. It appeared that these sasines had been presented on the 30th September, and entered in the minute-book of that date; but the entry was not signed by the keeper for a few days after, and the sasines were not fully engrossed in the register till the 3d of October. The certificate on the back of the sasines bore, that they had been presented on the 30th of September; and the keeper made a jotting in the minute-book, of the date of actual engrossing in the register. In these circumstances, and before any claim of enrolment was entered on these sasines, an action of declarator was brought by certain freeholders standing on the roll, concluding to have it found that the sasines should not be held as registered on the 30th September. In this action a judgment was pronounced, dismissing it hoc statu; and a reclaiming petition against this interlocutor was refused, although, in the mean time, claims of enrolment had been actually lodged. These claims were, however, afterwards insisted in. The freeholders refused to enrol the claimants; and as it was apprehended that the claimants would complain against the judgment of the freeholders, and would maintain that the objection was incompetent in a meeting of freeholders, an apprehension which the event justified, an action of declarator was brought by the same freeholders, who had insisted in the former declarator, concluding as before, that the sasines should not be held as registered on the 30th September. In defence, it was maintained that the action was incompetent,

'trimonial interest. Only difficulty is, if one freeholder fails another 'will take it up; but this occurs in other cases; e. g. reduction at in'stance of one creditor not res judicata, but will not allow new one without ' good reason.-Alva. For practice-Justice-Clerk. Levying tax by old 'extent very unjust. Ayrshire L. 4000, and shire of Edinburgh only L. 600. Altered in order to proportion land-tax equally. Low valua'tion was then the plan, now otherwise.-Justice-Clerk. Doubt is upon ' right of a freeholder.' Sustain competency and title in reduction, and find ex facie objections competent in complaint.'

because the act 16th Geo. II. having prescribed the mode of redress by summary complaint, any common law process which might otherwise have been competent had thereby been cut off; that the defenders had accordingly already brought a summary complaint against the freeholders for refusing to enrol them; that the principle, that every wrong must have a remedy, could not avail the pursuers, because, if the objection was competent to the freeholders, it would be discussed in the complaint, and if incompetent to the freeholders, it was equally so to the Court of Session, which had no original jurisdiction in matters of enrolment. To the title of the freeholders it was objected, that they had no right to go beyond the writings produced to them; and that any interest they had in the result, was merely remote and consequential. On the other hand, the pursuers argued, that it was a matter of indifference to them, whether the objection was discussed in the declarator, or in the complaint; but that as no wrong could be without a remedy, one of these methods must be open to them; and that, as freeholders on the roll, they had a clear and obvious interest to prevent the enrolment of others not legally qualified, and were fully entitled to insist in the proper action for that end. The Court accordingly sustained their title to insist in the action: and afterwards, on the ground of the practice in keeping the record which had been proved in a previous case from Cromarty, repelled the objection to the registration of the sasines1.

There does not appear to be any reported case, involving a similar question for a long time afterwards. A few years ago, however, a case occurred as to the right of a freeholder to insist in an action of reduction of titles ex facie unexcep. tionable, on which a claimant had been enrolled, where the ground of reduction was, that the lands were truly held bur

1 Earl of Fife and others v. Gordon, Skelly and others, 8th July 1774, Session Papers; and Fac. Col.