Scottish Court of Session Decisions

Subject_1 MEMBER OF PARLIAMENT.

Election of Berwickshire

Date: 4 December 1741
Case No. No. 14.

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Why the returns of clerks to freeholders, or to burghs which are directed to be made to the Sheriffs, and by them annexed to the writs, are executed in the form of an indenture betwixt the clerks and the Sheriffs?—This led me, after the Court rose, to look into the acts directing the manner of these returns, when I found, that by the act of the Scots Parliament, which became part of the articles of Union, the clerks of these meetings of freeholders, and of the presiding burgh, were to return the names of the persons elected to the Privy Council, by whom they were to be returned to the Chancery. But this was altered by the act abrogating the Privy Council, and instead thereof, these clerks are to return the names of the persons elected to the Sheriff, (and in the case of Edinburgh, the expression is certify the names, instead of return,) who shall annex it to the writ, and return it with the same, &c. The method of executing this it seems has been, that the form of an indenture is executed between the Sheriff and clerk of the freeholders, and that is annexed to the writ. But for what reason it is done in that form I know not, since that can hardly be called a return by the clerk to the Sheriff, or a certificate by the clerk, as it is expressed in the case of Edinburgh. All the subsequent acts, particularly the one 7mo, Geo. II. speak of a return by the clerks to the Sheriff very agreeably to the former acts indeed; but it led me to imagine it was a different writing from the indenture returned by the Sheriff. However, I now find, that that writing that the Sheriff annexes to and returns with the writ, whatever be the form of it, is the very return that the clerk makes to him, and I doubt it is impossible that that can set forth the res vere gesta, or it would be a very improper return to the writ. The form of indenture seems taken from act 7th, 8vo Henry VI. but ill adapted to the words of our acts, and yet the same words are continued in the act lately made, 16th Geo. II. anno 1743.