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. II.

Can Retours be divided? - Retours of Church Lands. - Of Heritable Offices. - Objections to Retours.

Andrew Chalmer of Easter Dalrye
v.
William Tytler of Woodhouselee

Date: 13 November 1755
Case No. No 34.

The objection, that the extract from chancery of a retour did not bear, that the seals of the jutors were appended, nor mentioned the name or subscription of the clerk, was repelled.

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Mr Tytler claimed to be enrolled as a freeholder of the county of Edinburgh for the lands of Foulfuird, as being a forty-shilling land of old extent.

In a proof of which assertion, he produced from the Chancery an extract of a writing, which bears, That on the 3d day of March 1554, an inquisition was made before the Sheriff of Edinburgh, by certain persons ‘qui jurati dicunt, quod terræ comitum dominorum et baronum et libere tenentium vicecomitatus de Edinburgh, extendunt ad valorem subscript. respectique antiqui extentus.’ In this writing the lands of Foulfuild are valued at 40 shillings. It concludes with these words, in cujus rei testimonium; but it does not bear, that the seals of the jurors were appended; neither does it make mention of the name of the clerk, nor of his subscription as clerk.

The freeholders enrolled Tytler at the Michaelmas meeting 1755. Chalmer preferred a complaint against this enrolment; and objected, That the writing produced for Tytler could be considered only as the draught of a retour which had never been completed.

Answered for Tytler; Retours must be held to be authentic when registrated by the proper officer of the law. This retour is not indeed recorded at length; but the same objection might be made to the authority of the record of many charters, wherein the names of the witnesses are omitted; and instead of the testing clause, these words are inserted, testibus ut in pracedenti charta. The same is the case in sasines; the law requires that they be inserted at length in the record; but this has been frequently neglected in practice.

“The Lords repelled the objection.”

Act. Sir Da. Dalrymple. Alt. Rae & A. Pringle. Clerk, Kirkpatrick. Fol. Dic. v. 3. p. 404. Fac. Col. No 163. p. 243.