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.

John Fordyce of Gask
v.
Urquhart of Meldrum

Date: 20 November 1757
Case No. No 36.

Objected against a claim, that the retour contained an an nualrent not separated from the extent of the lands. Answered, an annualrent is always retoured valere seipsum, and deducting it there remains more than the requisite valuation. The objection was repelled.

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In a complaint by John Fordyce of Gask against Urquhart of Meldrum, and other freeholders of Aberdeenshire, for refusing to enrol him in the roll of freeholders for that county; the title he founded on was a retour in the year 1513, which retour, in answer to the first head of the brieve, viz. ‘De quibus terris et annuis redditibus quondam Thomas Burnet obiit sasitus ?’ bears the answer in these Words, ‘Qui jurati dicunt, Quod quondam Thomas Burnet, pater Willielmi Burnet, latoris præsentium, obiit ultimo vestitus et sasitus de terris de Gask, cum suis pertinentiis, jacen. &c. et de uno annuo redditu tredecem solidorum et quatuor denariorum usualis monetæ Scotiæ, annuatim de terris de Balinalie, jacen.’ &c. And,

In answer to the fifth head of the brieve, viz. ‘Et quantum valent dictæ terræ et annuus redditus nunc per annum; et quantum valuerunt tempore pacis ?’ the retour bears, ‘Et quod dictæ terræ et annuus redditus valent nunc, per annum, duodecim mercas, et valuerunt decem tempore pacis.’

Objected for Urquhart of Meldrum; The act of the 16th of the King provides, “That no person shall be entitled to vote, in respect of the old extent of his lands holden of the King or Prince, unless such old extent is proved by a retour of the lands, of a date prior to the 16th September 1681. And, 2dly, That no division of the old extent, made since the aforesaid 16th September 1681, or to be made in time coming, by retour, or any other way, is or shall be sustained as sufficient evidence of the old extent.” But here the retour contains not only the lands of Gask, but also an annualrent of one merk out of other lands; and there is no room for division since the year 1681.

Answered for Gask; All that the law of the 16th of the King requires is, that it be proved, by a retour prior to the year 1681, that the lands on which the title is founded were a forty-shilling land of old extent. Now, it is triti juris, that annualrents are retoured valere seipsum; and therefore, deducting the value of the annualrent from the retour, which it is absolutely certain must be exactly one merk, there is a proof incontrovertible, that the lands of Gask were, of old extent, nine merks; which is far more than the forty-shilling required.

The Lords found John Fordyce entitled to be enrolled.

For Fordyce, W. Grant. For Urquhart, Burnett, Ferguson. Fol Dic. v. 3. 405. Fac. Col. No 61. p. 99.