the queftion was, whether at the time of the election, that judgment standing unrepealed had not annulled the voter's title.

That with respect to the fervice of Mrs. Rose, as heir to her brother, and the argument founded upon it, it would be fufficient to refer to the decifion of the court, in the original action brought by Mrs. Rofe; which determined, that her fervice cum beneficio, did not preclude her from setting aside the settlement of the fee, made by her brother in favour of the heir male; and therefore ought not to bar her, from objecting. to the liferent conveyance which he granted by the fame deed to the voter. That this argument. was further supported by a cafe in Kaims's Dictionary of Decifions, vol. 3, p. 153, which is there stated as follows, "Menzies of Coulterallars difponed his eftate to Dickson of Kilbucho. Upon Coulterallars's death, Robert Menzies, his` heir, brought a reduction of Kilbucho's difpofition, on the ground that Coulterallars, having never made up proper titles to that estate, was not in a capacity to difpone.-Answered, That the purfuer being ferved heir cum beneficio inventarii to the difponer, could not quarrel the dif pofition. The caufe being heard in presence, the Lords found, That the fervice cum beneficio did not bar the purfuer from infifting in his action."

The

The Committee paffed the following refolution upon this case:

That the freeholders of the county of Nairn did right, in not expunging Captain John Frafer from the roll of freeholders of the county of Nairn.

When the parties were informed of this decifion, the petitioners declined to proceed any further in the cause: Whereupon the Committee declared

The fitting member duly elected.

Of which the Chairman informed the Houfe on the following day, april 3d. *

During the inquiry into Sir Ludovick Grant's vote, (See pa. 411.) it became a question, whether the party objecting ought to produce the trust deed itself, whereby he had difponed his property to the trustees. The counfel for the fitting member infifted upon the production of the deed. On the part of the objectors, it was contended, That as this deed had been admitted by the fame parties, in the cause in Scotland, it ought not to be required now: That further, as the inftrument of fafine had been now produced, which proceeded upon that deed, the effect of it was legally before the court, in the fame manner as if the deed itself had been produced. And * 41 Journ. 470.

they

they contended, that even if nothing more than the minutes of election had appeared, they would be fufficient; because it appeared from them that Sir Ludovick Grant had admitted the deed at the election, when his vote was objected to.

That by the law of Scotland, thefe circumstances were more than fuficient proof of the exiftence of the deed in queftion, as to the prefent purpose; and the court in confidering a case under that law, ought to be guided by the rules of evidence received there. The counfel concluded with requesting the court, if their decifion fhould be against them, to confider the hardship of the petitioner's fituation, and to make an application to the House, for leave to adjourn, in order to give the petitioners time to obtain the authentic evidence of the deed from Scotland; because it was evident, that those who contended for the neceffity of producing the deed, could have no other motive in it, but captiously to overreach their opponents, in a point of form unexpected.

The Committee thought it unnecessary to hear any argument from the other fide; and informed the counsel that they had refolved, That the production of the truft deed was necessary: And that the Committee would apply to the Houfe, for leave to adjourn, for a time fufficient to enable the petitioners to procure the fame.

VOL. III.

Ff

This

This refolution had the effect of producing from the counfel for the fitting member, after fome conversation upon the fubject, an admiffion refpecting the deed, the fubftance of which is before related in the statement of the cafe of Sir L. Grant, in pa. 411.

In the cafe of Forfar, in april, 1782, the Committee paffed a fimilar refolution upon an occafion of the fame kind.

N O T E S

ON THE CASE OF

NAI

R

N.

AGE 411. (A.) The ftrictness with which

PAGE

petitions have been fometimes conftrued, in the modern election court, is very fcrupulous; and it may be doubted, whether fuch a mode of conftruction is fuitable to the nature of the causes inftituted there.

This minute attention to the expreffions of a petition, in application to the evidence, feems to have fprung up within very modern times; which perhaps has been owing to the practice (equally modern) of enlarging petitions, by introducing a number of par

ticular

ticular charges into them; instead of following the old course, of making fhort and general allegations. The Journals contain many inftances, in which petitions containing phrases as general and loofe as thofe in question, have been tried upon evidence that went to the whole merits of the cafes, without objection. I will refer the reader only to a few of thefe, which happened in the reign of William III. The words « undue practices," "illegal practices," "indirect prac tices," " falfely returned," appear to have been the only foundation of the charge against fitting members, upon which evidence has been received of bribery and treating, abuses of returning officers, rights of voting, and majority of numbers. For which fee 10 journ. 276. 11 journ. 342. and 13 journ. 3, 63, 136, 145, 169, 189. The petitions in the cafes of Malden, Bishopfcaftle, Thetford, and Orford, connected with the proceedings upon them, as ftated in the last mentioned volume, deserve particular attention in confidering this fubject. The allegation in the cafe of Malden is ftated in these words, "that most of the legal voters were for the petitioner; but by undue practices, the bailiffs of the borough have returned Mr. M. in wrong to the petitioner, And praying, &c.” The evidence in fupport of this petition contained inquiries into the rights of voters of various defcriptions, and of votes tendered and refused.`

In the case of Bishopscastle, the words of the petition are, that the petitioner had the majority of legal voices; yet in an arbitrary manner, and contrary to the antient cuftom of the borough, Sir W. B. was unduly returned; which,. with other illegal practices, are in prejudice of the petitioner." The evidence received,

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