Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Halden of Gleneagies v. His Vassals
1695 and
1696.
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1695. February 19.—Halden of Gleneagies against his Vassals, for relieving him of a proportion of the Commissioners' fees to the Parliament. Alleged,— By the 113th Act 1587, these expenses are only ordained to be paid by the freeholders; and it seems reasonable that none, save those who hold of the king, should be liable. Answered,—This is expressly derogated from by the Act of Parliament 1681, in fine, making all heritors liable. But, in regard there had been a former interlocutor, when thir same feuars had been pursued by Colquhoun of Craigton, their commissioner to the Parliament, assoilyieing them; the Lords ordained it to be heard in prœsentia.
Vol. I. Page 670.
1696. January 1.—The Lords advised the debate between Halden of Gleneagies and his Vassals, mentioned 19th February, 1695; whether they were liable to relieve him of a proportional part of the Commissioners' fees to the Parliament, effeiring to their valuations; which he founded on two grounds: 1mo. A clause in their feu-rights, obliging them to relieve their superior of all taxations effeiring to their lands. 2do. On the Act of Parliament 1681, ordaining all heritors whatsomever to contribute for the Commissioners' expenses, except only the vassals of noblemen, bishops, and burghs; which made barons' vassals liable, not falling under any of the branches of the exception.
Alleged, 1mo. That, being pursued by the Commissioners for Dumbartonshire on this same head, they were assoilyied by the Lords, after a report made by Halcraig; and so it was res judicata; and though inter alios, yet it was super eodem medio. 2do. That, of old, every baron coming to Parliament, they got no expenses, seeing they appeared jure proprio, and not by representation: and though there was an Act made by King James I. easing the small barons, yet it never took complete effect till the 114th Act, Parliament 1587; and then the Commissioners' charges are only laid on the freeholders and king's vassals: and so it continues by the 35th Act 1661, and never seems to be altered till the Act 1681; which, when thoroughly considered, neither innovates nor derogates from the former laws, however that clause may be inadvertently conceived; seeing these expenses ought to affect none save such as are capable to elect or be elected; though it was contended, that gentlemen's vassals being represented in Parliament, either by their master or his delegate, (as every foot of ground is there represented by somebody, conform to the ancient feudal custom,) they ought to bear a proportion of their fees, in respect of the dominium utile enjoyed by them. The feuars having alleged, that, by a solemn interlocutor, in July 1687, when Sir George Lockhart was President, the sub-vassals were assoilyied from a pursuit of this nature, intented by Seaton of Tough, as one of the Commissioners of Stirlingshire against them; the Lords desired to see the grounds on which that decision proceeded, before they should determine this general important case; seeing that practick was subsequent to the Act 1681, and sundry of the then Lords of Session were members of Parliament at the making of that law, and so might be presumed to know its meaning best.
