Scottish Court of Session Decisions

Subject_1 ADJUDICATION and APPRISING.
Subject_2 What SUBJECTS are carried by APPRISING and ADJUDICATION.

Earl of Caithness
v.
Sinclair of Ulbster

Date: 17 February 1749
Case No. No 18.

The privilege of superintending the election of a town, found to be adjudgeable.

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The town of Wick was erected into a royal burgh, by a charter from the Crown, anno 1589, containing regulations for electing the magistrates and council, in the following words:

“Cum speciali et plenaria potestate liberis inhibitantibus et burgensibus dicti burgi, et suis successoribus in futurum, cum expresso avisamento et consensu dicti nostri consanguinei Georgii comitis de Caithness, et ejus hæredum et successorum, et non aliter seu alio modo, præpositum et quatuor balivos, dicti burgi incolas, seu inhabitatores, una cum thesaurario, gildædecano, consulibus, burgensibus, serjeandis, aliisque officiariis necessariis intra dictum burgum, pro gubernatione ejusdem, faciendi, eligendi, constituendi et creandi, eosque, toties quoties expediens videbitur, pro causis rationalibus, deponendi.”

This privilege of superintending the elections of the town of Wick, was adjudged from the family of Caithness, with the land-estate; and first, the Earl of Breadalbane, and thereafter Sinclair of Ulbster in the Earl's right, got into possession of this privilege, during the time that the affairs of the family of Caithness were in disorder. A declarator, at the instance of some of the burgesses of the town, to regulate their elections, according to the form prescribed in the said charter, furnished the present Earl of Caithness an opportunity to appear for his interest, and to dispute Ulbster's right to this privilege. He contended, that it is purely personal, and not alienable more than his peerage, whether by a voluntary or judicial deed: The privileges attending peerage, a feat in Parliament, and exemption from personal execution, are not alienable: A right of burgessship is not alienable, nor the privileges of a, royal burough: The East India Company cannot alienate their privileges, nor any other company erected with exclusive privileges. The reason is the same in all, that these privileges are personal, and for that very reason not alienable; yet some of the privileges mentioned are attended with pecuniary advantages, which the privilege under consideration, neither is nor can be. 2do, The Earl of Caithness can exercise this privilege in the state of apparency; it does not subject the heir to the passive title, more than assuming the dignity, or bearing the family arms. It is therefore not patrimonial, to be carried by adjudication.

Answered for Sinclair of Ulbster: By the constitution of our law originally many things were exempted from commerce, heritable offices, jurisdictions, and even land, itself, though the most natural object of commerce. But now we lean to the other side, that all rights are alienable, unless the contrary be specified in, the grant. It is indisputable, that personal privileges conceived to heirs and assignees are alienable; which is the present case; because this privilege is given to the Earl of Caithness, his heirs and successors: And when a patronage, an heritable office, an heritable jurisdiction, are alienable, there can be little doubt that the privilege under consideration is also alienable.

‘The Lords first found this privilege not alienable; thereafter, that it is alienable.’ (See Personal and Transmissible.)

Rem. Dec. v. 2. No 104. p. 199.