Peers are entitled to empower others to vote for them in their absence, by proxy. The proxy must be directed to a peer entitled to vote, and must be signed in the presence of two subscribing witnesses. No peer can act as proxy for more than two peers at a time.2 Peers may likewise vote in their absence by signed lists. The lists must be subscribed by witnesses, but it is not necessary that the writer's name should be mentioned. Those who grant proxies, or vote by signed lists, must take the oaths in presence of a judge; it is generally done before the sheriff.4

The peers are directed under penalties to appear at the place of meeting with their ordinary attendants only.5 They are prohibited from taking into consideration any other subject or business than that for which they are convened, under the penalty of what is in England termed "præmunire," involving partial outlawry and imprisonment.7 The business of collecting and recording the votes is performed by the lord-clerk-register, or two principal clerks of session.8

*

When a peer whose name is on the roll proffers his vote, it cannot be refused, and no question as to title can be discussed. An objecting peer may, however, enter a protest, and prefer a petition to the House of Lords complaining of the return. When two claim the same title, both must be allowed to vote.10 The roll is the same which was called at the last Scottish parliament, with the deductions which have been made by attainders, and the additions which have been made by order of the House of Lords, in consequence of rights to Scottish peerages having been established before them."1

CHAPTER II.

ELECTION OF MEMBERS OF THE HOUSE OF COMMONS.

SECT. 1.- Voters in Counties.

Freeholders.-ALL persons who were on the roll of freeholders, or entitled to be placed on it at the passing of the

11707, c. 8. Wight, 120.-26 Anne, c. 23, § 6.-3 1707, c. 8.- Connell on El. 15.-5 6 Anne, c. 23, § 8.-6 Ibid. § 9.-7 Bl. iv. 118.-8" Robertson's Proceedings, 27. Wight, 125.-9 Ibid. 126.-20 Ibid.-11 Ibid. 125, n. †. *As a præmunire is known only in English law, and is an offence for which a peer is not tried by his peers, there would undoubtedly be many questions of difficulty were a peer brought to trial on the act.

act 2d and 3d Wm. IV. c. 65, or who before 31st March 1831 became proprietors or superiors of lands which would have entitled them to be enrolled after the expiry of the necessary period,* retain their right to vote so long as they hold their qualification, but it cannot be transferred by them, and is not descendible to their heirs.1

Proprietors. Owners of lands, houses, feu-duties, and all other heritable subjects (except debts heritably secured), of the yearly value of £10, whether they have made up their titles or not, are entitled to be registered, if they have been proprietors for six months previously to the 31st July, in the year in which the claim is made; but where the property has been acquired by inheritance, marriage, marriage settlement, or mortis causa disposition, or by appointment to any place or office, the proprietor is entitled to be registered on the first occasion of making up the list, though before the expiry of the six months.3 The property must be worth £10 annually, after deduction of any feu-duty, ground-annual, or other consideration, forming a condition of the right; but though the returns do not arise annually, but at longer intervals, their average annual amount may be estimated.* Debts heritably secured are not deducted. Liferenters vote

to the exclusion of fiars.5 Joint-owners may vote where the interest of each amounts to £10 annually, and husbands vote on property in right of their wives, and after the death of their wives, on their right of courtesy. Every person enrolled as a proprietor must be in the actual occupancy, or in receipt of the rents, &c.7

6

Evidence of Proprietorship.-As the act admits the pro-. prietor to the franchise whether he has made up his titles or is infeft or not," regular feudal titles are not required as evidence in the registration court. As to the extent of evidence necessary to prove proprietorship, there have been doubts, some courts insisting that the claimant should show a personal title at least, i. e. such a title as he can immediately convert into a regular feudal one by infeftment, others having received ordinary evidence of admitted ownership, "such as entry of the name of the party in the superior's rental-book; entries in such book of payments of feu-duty by him; separate receipts for feu-duty; or one or more of such written adminicles, accompanied by parole proof of

12 & 3 Wm. IV. c. 65, § 6.-2 Ibid. § 7.-3 Ibid. Ibid.-5 Ibid. § 8. - Ibid.- Ibid. § 7.

* A year elapsed between the infeftment of a freeholder and his enrolment. Wight on Elections, 212.

building houses or of possession."1 The evidence must in all cases show absolute ownership, and where documents are produced from which the contrary may be inferred, their effect must be counteracted by conclusive evidence.2 The right should be indefeasible, and so when the title produced gave power to another person to burden, sell, or dispone, the claim was rejected.3

Trust-deed.-A trust-deed has been held not to exclude the truster, though it bare to be absolute, and it was averred that there would be no residue after fulfilling the objects of the trust. The claims of persons benefited by trust-settlements have given rise to a variety of decisions, the leading principles of which appear to be, that where the trustees are merely empowered to sell heritable property for the purposes of the trust, those for whose benefit it is held may vote so long as it is unsold, but, that where they are enjoined to sell and divide the proceeds, the persons for whose benefit they act have a mere personal right to a share of the proceeds, and though the property be unsold, and the rents are divided among them, they have no qualification."

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Partnership.-Partners have been found entitled to vote on heritable property belonging to the company;7 and that even though the contract declared the property of the company, as represented by its shares, to be personal property. The members of a corporation holding property in trust, as the town-council of a burgh, cannot qualify. It is matter of doubt whether the members of a commercial corporation can.9

Liferenters. There is no clause expressly enfranchising liferenters, but it has been inferred from that giving them a qualification to the exclusion of fiars (§ 8) that they were intended to be included, and that they should have the qualification without requiring to make up titles, as if they had been specified in the enfranchising clause.10 In general, they have been found entitled to claim as proprietors. An irredeemable liferent annuity has constituted such a claim, the court holding "the distinction between heritable burdens and liferent to consist in the defeasibility, at the option of the party burdened, by payment"ll in the case of the former; but the decisions on the subject are not uniform.12

Office Holders.-Persons holding property by virtue of their office, are held enfranchised by the clause which dis

Cay's Analysis of the Reform Act, par. 119.-2 Cay, 62, e, f, g, h.Ibid. 54, c. Ibid. 52, a.-5 Ibid. 61, a, j.-6 Ibid. b to i. Ibid. 72, b. Imlach, 1838. Cairnie, 1838. Swinton's Digest, 32.-9 Cay, 72.— 10 Ibid. 81. Ibid, 87, d.-12 Ibid. 152.

penses with the six months' possession in the case of such persons (§ 7). The privilege has been chiefly applied to clergymen and schoolmasters. A distinction has been made between clergymen of the establishment and parish schoolmasters on the one hand, and dissenting clergymen and the teachers of privately endowed schools on the other; the former holding the subject of their claims by the operation of law on entering on their offices, and therefore not being required to produce proof of possession, the latter holding them by private agreement, and liable to produce evidence as in ordinary claims. It has generally been held in the case of a dissenting clergyman, that he must show, "first, the title to the subject in the congregation, and that they hold it by a right such as enables them to convey to him a liferent interest. Second, his own title to the subject, viz. that the congregation have conveyed a liferent interest to him indefeasibly." If the congregation hold only on lease, he will generally require to make out a qualification as liferent tenant.3 A parish minister has been held not to have a qualification through the teinds to which he has a right by a decree of locality. Some appeal courts have admitted parish schoolmasters claiming on their school-houses, but "the majority of appeal courts have been of opinion that the subjects on which alone the schoolmaster can claim as attached to his office, are the dwelling-house and garden, to the exclusion of the school-house and play-ground, and that neither the salary nor the allowance made where there is no garden, can be taken into account."5 Parish ministers and schoolmasters belong to the class of "proprietors," to whom occupancy is not deemed necessary; and so the claim of a schoolmaster was admitted where he let his house for part of the year to people frequenting a watering-place, and the rent so obtained was admitted as an ingredient in the value."

Tenants not in Occupancy.-Tenants, whether joint or several, are entitled to be registered where, in a lease for not less than 57 years (exclusive of all breaks at the option of the landlord), or for life, their interest, after paying the rent or other consideration, is not less than £10 annually; or where, in a lease of not less than 19 years, their interest is not less than £50.7 The tenant must have held the subject for a year previous to the last day of July (unless it have fallen by succession, &c., as in the case of a proprietor), on a written title.8

Cay, 99-107.-2 Ibid. 101. Swinton, 49.-3 Cay, 103.- Ibid. 151, c. Shirra, Jedburgh, App. 1837.-5 Cay, 98.- Ibid. 98, b.-72 & 3 Wm. IV. c. 65, § 9.- Ibid.

Tenants in Occupancy.-Tenants who do not hold by written titles, or for a fixed period, or with a fixed yearly interest, are entitled to be registered after being a year in personal occupancy, if their yearly rent is not less than £50; or if they have paid a grassum of not less than £3001: it is questioned, however, whether occupancy is required in this last case. Sub-tenants and assignees to sub-leases, for 57 years, with an annual interest of £10, or for 19 years, with an interest of £50, must be in occupancy.2

Where any rent is payable in grain, the average of the fiars for the three preceding years is taken, and when in any other produce, the average of the market-price for the same period.3

Decisions as to Tenants.-By some courts, long leases, as for 99 years, have been held equivalent to property, and the claimant has been admitted as a proprietor, without reference to the quality in which he may have claimed, in virtue of § 46 of the act, which obviates vitiation from misnomers.+ A committee of the House of Commons decided that lessees for 999 years were not proprietors, but that they were entitled to vote though they had claimed in that capacity.5 Where tenants had been long in possession, but had only obtained their written title within the year, their claims were rejected;" in cases, however, where the title bore that the tenant entered before the running of the year, and this has been supported by proof, it has been usual to sustain. Where an assignation, except with consent of the landlord, is prohibited, an assignee has been held not qualified without it. Where one of two joint occupants, whose joint rent was upwards of £50, but less than £100, claimed, he was rejected. A five years' lease of a shooting-lodge, with the right of shooting over moors, for a rent of £50, was sustained on appeal, as a qualification; but in general, such a lease has not been viewed as one of an heritable subject.10 A lease which was held by a wife as her father's heiress, was held not to qualify her husband." Persons otherwise qualified .as "tenant and occupant" have been found to disqualify themselves by letting grass parks, to such an extent as to reduce their actual rent below the statutory amount—but it was especially noticed in these cases, that the tenant's following the trade of admitting cattle to graze for a night at

8

1 2 & 3 Wm. IV. c. 65, § 9.—2 Ibid.-3 Ibid.-4 Cay, 114.-5 Linlithgowshire, 1833, Perry and Knapp's Cases, 281.- Selkirkshire, 1832.Smith, Ayr, 1835. M'Kerrow, ditto.- Jedburgh, 1832.-9 Cay, 158, c. 10 Ibid. 158, a, b, d.-" Mitchell, Jedburgh, App. 1837.