Scottish Court of Session Decisions

Subject_1 MEMBER of PARLIAMENT.

When the personal attendance of the lesser Barons in Parliament was at first dispensed with by James I., and the privilege of sending Commissioners was substituted in place of that attendance, all the vassals of the Crown, however small their freeholds, were entitled to vote in the election of these Commissioners. This privilege was afterwards, by James VI., limited to those who had a forty-shilling land in free tenantry, and resided within the shire; and was again, by Charles II., extended to those possessed of lands holding of the King, of ten chalders of victual, or L. 1000 Scots of real rent. Afterwards, however, by the statute 1681, which is now, in material points, the rule for determining the qualifications of elections, it was enacted, that none should be allowed to vote but those “who stood publicly infeft and possessed of a forty shilling land of old extent, holden of the King or Prince, distinct from the feu-duties in feu-lands; or where the extent did not appear, stood infeft of lands liable in public burden for his Majesty's supplies for L. 400 of valued rent, whether kirk lands now holden of the King, or other lands holding feu, ward, or blanch, of his Majesty, as King or Prince of Scotland.”

The only exception from the regulations of this statute, is the peculiar constitution of the county of Sutherland, where, by immemorial and continued usage, the right of electing, and being elected, is competent to vassals holding of a subject superior. By statute 16th, Geo. II., such vassals, however, must be possessed of lands paying public burdens to the amount of L. 200 Scots of valued rent. And the same statute contains certain special enactments regarding those anomulous qualifications.

With regard to the manner of keeping the roll of electors - the time of holding the annual Michaelmas head-courts - the form of procedure in those courts - the remedy for those aggrieved by their decisions, by summary complaint to the Court of Session - and the penalty if such complaint is dismised - the statute 16th Geo II. cap. 11. is the rule in all those particulars.

Corruption and perjury in the electors are restrained by penalties contained in act 2d, Geo. II. cap. 24.; and the penalty for the Clerk of Court making a false return, is statuted by act 7th, Geo. II. cap. 16.

Fol. Dic. v. 3. p. 401.
Subject_2 DIVISION II.

The Qualification of a Freeholder possessing a Forty Shilling Land of old extent.
Subject_3 SECT. I.

Evidence of the old extent.

Patrick Mackie of Barmore,
v.
Sir William Maxwell of Monreith, and other Freeholders of the county of Wigton

Date: 29 July 1761
Case No. No 19.

The objection again repelled, that the principal retour did not appear, but only an extract from Chancery.

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Patrick Mackie of Barmore having claimed to be admitted upon the roll of freeholders of the county of Wigton, at the general election upon the 23d of April 1761, he, with that view, produced a charter under the Great Seal, in his favour, of the lands of Barhapple, Kenmuir, and Barbuny, together with several other lands therein mentioned, dated 12th February 1740, with an instrument of sasine following thereupon, dated the 1st, and registered the 12th of March thereafter; and an extract retour of Sir Robert M'Lellan of Bombie, as heir in special of Thomas M'Lellan of Bombie his father, dated 27th October 1624, whereby the said lands of Kenmuir, Barhapple, and Barbuny, were each of them retoured to be a one merk-land, extending in whole to three merk-lands of old extent distinct from the feu-duties.

Sir William Maxwell and others of the freeholders objected to this claim, 1mo, That the claimant who had been formerly enrolled upon the same lands, was expunged from the roll anno 1747, in consequence of a decree of the Court of Session, and it was not competent to the freeholders to reverse that decree.

2do, That the lands contained in the claim were said in the retour to hold of William Gordon of Craichlaw; and therefore the said retour could afford no proper evidence of the old extent.

3tio, That the pretended extract of the said retour produced, could not be regarded, in respect that there was no such retour in Chancery; and that the extract was taken only from a copy-book, which is not sufficient; the act of the 16th of George the Second having enacted, that the retour itself shall be the only proper evidence of the old extent.

Answered for the claimant; 1mo, That he was struck off the roll in 1747 for not producing a retour to shew the old extent of the lands he formerly claimed upon; but that having lately found such retour, he was entitled to be immediately enrolled, the former decree of the Court of Session notwithstanding.

2do, That the statutes with regard to freehold-qualifications make no distinction of retours, whether the lands hold of the King or of a subject superior; and that it had been found by the Court of Session, that a retour of lands prior to the year 1681, whether holding of the King or of a subject, was sufficient evidence of the old extent.

3tio, That no principal retour was to be found in Chancery preceding the year 1660, the whole having been carried off by Cromwell; but these retours appear upon record in the books of Chancery; and from that record extracts are always given, as from the principal retours, and the extract produced bears to be vera copia principalis retornatus in cancellaria remanen. Besides, the like objection was expressly repelled by the Court in the case of Sir James Colquhoun contra The Freeholders of Dunbartonshire, 5th February 1745, No 12. p. 8572.

The freeholders having refused to enrol the claimant, he preferred a petition and complaint in terms of the act of the 16th of the late King; and, upon advising this petition with answers,

“The Lords ordered the complainer to be put upon the roll.”

For the Complainer, Walter Stewart. For the Respondents, Da. Dalrymple. Clerk, Pringle. Fol. Dic. v. 3. p. 403. Fac. Coll, No 53. p. 130.