Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.
Subject_2 MONBODDO.

Kirkpatrick
v.
Irvine

Date: 14 February 1747

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[Falconer, No. 163.]

The question here was, Whether a retour of church-lands, prior to the 1681, is a good evidence of the old extent. On the one side, it was said, that the reason why the old extent gave a vote at first, was, that it was the rule by which the public burthens were paid. But, in church-lands, that was never the rule; for, notwithstanding the Act 1594, ordaining church-lands to be extended, and notwithstanding the charters of erection bear that the lands erected shall pay taxes, not as church-lands, but as other temporal lands; yet, in fact, it is certain that church-lands never paid by the old extent, but by Bagiment’s roll, till the valuation was established; and, therefore, as church-lands were never assessed by the old extent, they properly had no old extent; and, consequently, can give no title to vote by the extent. To this it was answered,—That, though the Act 1594 did not generally take effect throughout Scotland, yet it might take effect, and actually did, in some parts of Scotland; and where it was executed, and the lands properly retoured, there appears no reason why they should not be entitled to vote. The Lords found, unanimously, (Arniston only doubting,) that the vote in this case was good.