Scottish Court of Session Decisions

Subject_1 MEMBER OF PARLIAMENT.

Hamilton of Aikenhead - Dundas of Castlecary - Hamilton of Airdrie, &c

1745, Jan. 7, 19.
Case No. Nos. 23, 24, 25, 26.

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On my report sundry objections were sustained against persons on the roll, particularly Hamilton of Aikenhead, who produced his infeftment in land on a retour in 1741 returning them to L.10 old extent, and to supply the want of a retour before 1681 referred to the respond-book in Exchequer from 1591 to 1606, where it is inserted agreeably to that extent, and was taken from a retour then made and a precept from the Chancery upon it to one John Maxwell, but the retour itself lost, and the record of it in Chancery also lost, as most of these records are before 1660. And Dundas of Castlecary produced extract sasine, proceeding on and reciting verbatim the precept from the Chancery on which it proceeded, wherein his lands are designed 40 shilling old extent and L.S new, and he appealed to the respond-book of that time in Exchequer agreeing therewith; yet because of the express words of the act 1743, that no person should be entitled on the old extent unless such extent is proved by a retour before 16th September 1681, the objection was sustained.

3dly, Hamilton of Wishaw produced a retour in 1682 retouring his lands to L.2. 6s. 8d. both of old and new extent, and the feu-duty the same. The Lords sustained the objection that the old extent was not distinct from the feu-duty, and found that the act 1681 was not in that respect altered by the act 1743. Arniston at first differed, and said he did not understand that clause of the act 1681, but upon reading the retour whereby it appeared that they were kirk-lands he also agreed, because there never was any extent of them. But I believe in that he was wrong.

4thly, Hamilton of Airdrie was infeft in lands valued at L.340, and his wife and her two sisters were infeft as heirs to their father in 1702 in lands valued at L.73. The two sisters were dead and she apparent-heir to them, and the whole together was more than L.400, and the Lords found that the valuation of the lands wherein his wife was infeft might be conjoined with his own, but that the valuation of the lands wherein she is only apparent-heir could not be conjoined;—and therefore sustained the objection. All these found without putting a vote.

5thly, Hamilton of Westburn produced an infeftment in the just and equal half of a 20 merk land, and that it was a merk land was admitted to be proved by a retour in Chancery in 1625 in favours of M. of Hamilton,—and produced a contract of division between the heritors of the two halves in 1671 dividing and ascertaining the share of each, and according to that division Westburn had full possession, though his infeftments continued still in the account the half of such a 20 merk land. Arniston told us the House of Commons had found (I think in an election of Dunbartonshire) that such infeftments in the half of lands pro indiviso, are no titles, because the possession being pro indiviso could not be called possession of a 40 shilling land,—but he thought that this contract of division being before 1681 and possession conform, was sufficient But others thought, (inter quos Tinwald et ego) that if the infeftment without any division would not give a title, a private contract of parties could be no legal evidence against the other freeholders of the equality of the division, or that Westburn's share is either a half or a tenth part of the old extent no more than it would be of the valuation; but that legal evidence behoved to be brought of it in a proper Court, and since there does not appear any legal division of the extent, Westburn has no title, and by the act 1743 no division after 1681, or to be now made, can avail;—and it carried by the President's casting vote to sustain the objection. 7th February, Adhered as to Westburn.