Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by JAMES BURNETT, LORD MONBODDO.

Election Process of Dumfries-shire

1741. February 7, 8, &c.

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[Elch., No. 4, Member of Parliament.]

In this case the Lords found that the Privy Council of Scotland had no power to annex or disjoin counties. The Court seemed to be of opinion that a charter from the crown, before the 1681, was sufficient evidence of the old extent, as being liable to no suspicion that the extent was heightened in order to create a vote. But the same regard was not given to charters from subjects, because in them, the old extent, which was the rule for the relief of the taxation, which the superior had from the vassal, was determined commonly by private paction betwixt them. Nevertheless they found that a charter from a subject, in the year 1610, was sufficient evidence for a jury to retour the old extent in 1736. This carried by the President's casting vote. Arniston non liquet, Elchies Dissent.

N.B. In this case the retour alone was not thought sufficient evidence unless supported by some other document, nor was the objector put to the necessity of reducing the retour; but they found, that even a charter from the crown in the 1613, designing the lands to be a four-pound land, was not sufficient evidence of the old extent, because the lands were church lands, and it did not appear that there ever was any general commission to retour all the church lands of Scotland, or that these lands in particular ever were retoured; and because lands were frequently designed to be pound and penny lands without any regard to the old extent, perhaps from the real rent; and thus they explained the Act 233, 1594.—Dissent. Preside.

Item, The Court was of opinion, that the meaning of the Act of Parliament 1681, requiring that the old extent should be distinct from the feu-duties in feu-lands, was to obviate an abuse that had crept in some time before, (Arniston said, about the Reformation,) of retouring lands holding feu either of the king or church to the avail of the feu duty by way of old and new extent, whereas, by the taxation Act 1597, the feu duties ought to be deduced, and the free rent of these lands only considered, in rating the extent ; therefore, when the feu duty and the old extent was the same, there was just reason to suspect that the lands were retoured in the abusive manner above mentioned, and not in the way prescribed by the Act of Parliament 1597.

Item, The Lords found that a freeholder could be enrolled at a Michaelmas head court so as to vote for preses and clerk at the election, though happening before the year and day was expired. They went upon the same principles that they proceeded on, when they found that purchasers could be enrolled to the same effect, viz. that voting for the preses and clerk, was not voting at the election. Dissent. Arniston.

Item, The Lords found, that though the infeftment was in the third or fourth part of a tenement of lands, yet, if the lands are afterwards divided, either by the sheriff upon a brief of division, or by contract betwixt the private parties, and possession had conform, the vote is good. This is the case of coadjudgers, mentioned in the Act 1681.