John Stirling of Herbertshire, in the County of Stirling, Esq. v. Archibald Campbell, younger of Succoth, Esq. [1754] UKHL 1_Paton_583

UKHL
John Stirling of Herbertshire, in the County of Stirling, Esq. v. Archibald Campbell, younger of Succoth, Esq.
[1754] UKHL 1_Paton_583
Proper and improper Wadset, difference between them in law, and also as a title for voting.Captain Campbell claimed to vote as one of the freeholders of the county of Stirling, under a title which was objected to as insufficient. This title was a wadset entered into by William Stirling and his ancestor whereby, in consideration of the sum of L.82, the former sold and disponed to the respondent's ancestor, the lands of Gunnershaw and others within the county of Stirling for twenty-one years, redeemable thereafter. Upon this he was infeft in the lands so disponed, consisting partly of property and partly superiority.

Page: 584 ↓

The appellant objected, that the respondent's wadset being an improper one, and not a proper wadset, which alone gave a freehold qualification, contended, that he had no right to be placed on the roll of freeholders: that contracts of wadsets were of two kinds, proper and improper. The proper wadset is that by which the disponee takes possession of the lands for the use of the money, and is not accountable for the rents, but retains them for payment of his interest, and takes the hazard of them in all events; or as it is expressed in the Act of Parliament 1661 c. 62, “where the creditor wadsetter hath the hazard of fruits, tenants, war, and others.” The improper is that wadset whereby the wadsetter is liable to account for the rents, and to impute the surplus, over paying the interest of the debt, in extinction pro tanto of the principal sum. The former, therefore, is a right of property, the latter a mere right in security, and so ineffectual to give a right to vote.Jan. 10, 1754.The Court of Freeholders having dismissed the respondent's claim, he brought a petition and complaint to the Court, complaining of that sentence. The Court pronounced this interlocutor:—
“Find that the complainer's right is a proper wadset, and the lands therein mentioned are properly conveyed, as well those whereof the feu-rights of the vassals were excepted, as those whereof the property was conveyed? Find that the lands were regularly divided, and the valuation of the half thereof made in the year 1740, and was confirmed by a subsequent meeting of the Commissioners of Supply in the year 1753, and therefore repel the objections to the complainer's title as to these points.

Against this interlocutor the present appeal was

Page: 585 ↓

Pleaded for the Appellant: —The greatest part of this wadset consists of feu-duties; and the Act 1681 gives the right of voting only to proper wadsets of lands. The difference between proper and improper wadsets is, that the person in right of a proper wadset takes the whole profits to his own use, without any kind of account. In other words, the use of the land for the use of the money. During the subsistence of the wadset, he is absolute owner until the redemption agreed on take place, upon repayment of the money. Whereas the improper wadsetter receives indeed the profits, but is accountable for the surplus beyond what pays his interest; and such surplus goes pro tanto , in extinction of principal. His estate, therefore, is not absolute or certain, and the act 1681 confines the right of voting to a proper wadsetter, which the respondent is not, upon the principle that such wadsetter is an owner, and infeft in a fixed durable estate.Pleaded for the Respondent: —The respondent's title is a proper wadset, as he has taken the rents of lands for the use of the money, which is the proper characteristic of a proper wadset. He has no demand of interest from the debtor, and he is liable to every hazard of diminution of the fruits by tenants, war, and troubles which, according to the Act 1661, constitute a proper wadset. What constitutes an improper wadset is where the creditor has his interest secured to him by his debtor, whatever should befal of the rents. The creditor may agree to pay public burdens—may reserve to himself any particular casualty, yet those stipulations do not alter the essential nature of the improper wadset, and convert

Page: 586 ↓

After hearing counsel, it was

Ordered and adjudged that the appeal be dismissed, and that the interlocutor complained of be, and the same is hereby affirmed.Counsel: For the Appellant, A. Hume Campbell, Al. Forrester. For the Respondent, Wm. Grant, W. Murray.