Scottish Court of Session Decisions

Subject_1 MEMBER OF PARLIAMENT.

Colonel Abercromby
v.
Baird

1753, Feb. 28.
Case No. No. 55.

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This Gentleman's title to vote was the Crown's charter in the lands of Northfield both old and new tenor thereof, and the lands of Grinley with their pertinents, and which are held of him by Keith of Northfield; and he produced a retour of the vassal's heir (who then held of the family of Marshall) in 1628 retouring the lands of Northfield and part of the lands of Whitefield to 10 merks old extent and 40 merks new. The words, as in the first olause, Obiit sasitus in totis et integris illis 10 mercatis terrarum et Baronæ de Troup vocat. terris de Northfield, cum illa parte terrarum de Whitefield, pertinen. aliquando ad dict. lie mains de Troup. And in the valen. clause, Et quod totæ et integræ illæ 10 mercatæ terrarum de Troup vocal. terræ de Northfield, cum illa parte dict. terrarum de Whitefield pertinen. aliquando ad dict, lie mains de Troup nunc valent per annum 40 merc. et valuerunt tempore pacis 10 merc. Objected, first, that this is not a retour of the Crown's vassal but of a sub-vassal, therefore no evidence of the old extent. Answered, Neither the common law, nor act 1681, nor 16th of the King, make any difference: Both proceed on brieves from the Chancery with the same heads in both, and directed to the same Judge who chuses the inquest, and retours the same in Chancery; and the law knows not two old extents, one for the superior and the other for the vassal. There is but one old extent, whereof we hardly have the date, which remains unalterably the same, being about 50,000 merks in all Scotland; and the inquest erring wilfully would be equally subject to an assize of error in the one case as the other; and as it was the rule of levying the taxation from the Crown's immediate vassals, so it was the rule of their relief from their sub-vassals. The Lords repelled this objection, renit. tantum Kames. Objection second, The respondent has no right to the lands of Whitefield part of the lands in the retour. Answered, first, The lands of Northfield are by the retour a 10 merk land without Whitefield; 2dly, Whitefield appears to be only a pendicle of the mains of Troup, and, were it included in the valen. clause, could be but a small part of the 10 merks, and Northfield would be much more than a 40 shilling land; 3dly, Though the name be changed it is truly comprehended under the lands in the respondent's charter. He purchased this superiority in 1736 from Keith of Ludquharn, who had acquired an old apprizing and charter on it from the family of Marshall; that Ludquharn claimed no part of the superiority as retained by him, and the vassal, who has possessed that small estate of 1000 merks rent for 300 years, has sold none of the lands in the retour, and owns no other superior but the respondent; and he can prove that the vassal possesses that very pendicle as falling under one or other of the lands in the respondent's charter. Replied, That the first clause in the retour is indeed ambiguous, if Whitefield be a part of the 10 merk old extent or not, but the valen. clause puts it out of doubt, bearing that both Northfield and Whitefield valuerunt 10 merks. To the second, That no division of old extent can now be made, because of the act 16th Geo. II., nor no evidence of such division admitted, but a retour before 1681. To the third, No matter whether Ludquharn claim a superiority or not, if it is not conveyed to the respondent he has no right to vote. In answer to the first the respondent quoted from Falconer a decision 5th February 1745,* upon a retour of Duke of Lennox, where after stating the old extent of sundry particular land, was added, cum molendinis de Mewie terris molendinariis multuris, &c. valen, &c.; the Lords found the mill and mill lands not included in the old extent, and sustained the heritors right to vote though not infeft in the mill and mill lands. But I looked at the case in my prints. It was in Major Colquhoun's, &c. complaint of Campbell of Stonefield, Sir James Livingston, M'Millan and others in Dunbartonshire; and the answer to the objection was, that mills and multure were not extended, nor could not be, unless they had been before the extent was made, which scarce any mills now in being were, and the mill lands were but two acres, and if they were extended, yet they were part of another tenement called Fyvarie which were none of the lands in dispute. And in answer to the second, Lord Advocate put a case, that one infeft in a L.100 old extent had given away a small part, not one-hundred of it, would that lose him his vote? as to which I quoted the case of Hamilton of Westburn in Lanarkshire, decided 19th January and 1st February 1745, who produced a retour of a 20 merk land in 1625, and his own

* Dict. No. 12. p. 8572.

infeftment in the just and equal half of it, and a contract of division in 1671 between the proprietors of both halves, agreeably to which they have possessed ever since, and yet he was found to have no right to vote. The Court seemed inclined to repel both these defences. Only Drummore and Karnes seemed to doubt of the first;—but we allowed him proof before answer that these lands of Whitefield were possessed, falling under one or other of the names of lands in his charter, and both parties to prove all facts and circumstances to clear the matter. 22d July, Adhered to the interlocutor touching the retour, and found it proved that Whitefield is part of Northfield, and therefore dismissed the complaint.