Scottish Court of Session Decisions

Subject_1 MEMBER OF PARLIAMENT.

Cunningham
v.
The Freeholders of Fifeshire

1742, Jan 7, 21.
Case No. No. 17.

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This was a complaint of the same kind with the former, and though few freeholders were present, (only five) yet as they did constitute themselves into a meeting, we found the complaint competent; but as to the merits the evidence afforded of its being a 40 shilling land of old extent, was only charters and precepts of clare constat by the subjects superior, the Baron of Innerkerthyne and the Earl of Haddington, from 1602 and 1609, down to 1687, with arguments from the book in the low register, as certified by Mr Corse, that the old extent might be proved not only by retours, but also by infeftments, and the former decisions, 10th February 1741, marked by me, under 3d February 1741, Elections of Dumfries-shire was quoted, (No. 4,) though it was admitted that that interlocutor was stopped on a reclaiming bill. We had no answers for the meeting; but Mr Scrimgeour, Advocate, who was a freeholder, was admitted to plead it for himself, and showed the proceedings upon which the petitioner was refused to be enrolled, and whereby it appeared, that the petitioner's lands, under which he claimed, called Doul, remained extended jointly with other lands then belonging to the same heritor, to L.4 old extent as late as 1613, as appeared by the tax roll of that year, which was an evidence that there had been no lawful division before that time, and consequently that Doul was not a 40 shilling land at the date of the charters 1602 and 1609. 2dly, That by the valuation book, these other lands jointly extended with Doul in the 1613 stand valued in the revaluation of that shire at L.639, whereas these lands of Doul, joined with the petitioner's father's lands of Balbougie, which last are L.4 land, are valued at L.535, and consequently, were there a division of the old extent of these other lands from Doul, the lands of Doul could hardly be L.l land; and though it was said for the petitioner, that the reason of the high valuation of these other lands was, that the proprietor had purchased other lands that now went under the same name, and were jointly valued with them, yet that still rendered it the more doubtful what the old extent of them was, and consequently what was the old extent of Doul;—and therefore we found, that the petitioner had brought no sufficient evidence of the old extent of his lands of Doul, and refused his petition. 21st January The Lords adhered, and refused without answers. Renit. President.—But Arniston argued strongly for the judgment.