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John Barns v John Hamilton. [1780] Mor 8592 (5 December 1780)
URL: http://www.bailii.org/scot/cases/ScotCS/1780/Mor218592-023.html
When the personal attendance of the lesser Barons in Parliament was at first dispensed with by James I., and the privilege of sending Commissioners was substituted in place of that attendance, all the vassals of the Crown, however small their freeholds, were entitled to vote in the election of these Commissioners. This privilege was afterwards, by James VI., limited to those who had a forty-shilling land in free tenantry, and resided within the shire; and was again, by Charles II., extended to those possessed of lands holding of the King, of ten chalders of victual, or L. 1000 Scots of real rent. Afterwards, however, by the statute 1681, which is now, in material points, the rule for determining the qualifications of elections, it was enacted, that none should be allowed to vote but those “who stood publicly infeft and possessed of a forty shilling land of old extent, holden of the King or Prince, distinct from the feu-duties in feu-lands; or where the extent did not appear, stood infeft of lands liable in public burden for his Majesty's supplies for L. 400 of valued rent, whether kirk lands now holden of the King, or other lands holding feu, ward, or blanch, of his Majesty, as King or Prince of Scotland.”
The only exception from the regulations of this statute, is the peculiar constitution of the county of Sutherland, where, by immemorial and continued usage, the right of electing, and being elected, is competent to vassals holding of a subject superior. By statute 16th, Geo. II., such vassals, however, must be possessed of lands paying public burdens to the amount of L. 200 Scots of valued rent. And the same statute contains certain special enactments regarding those anomulous qualifications.
With regard to the manner of keeping the roll of electors - the time of holding the annual Michaelmas head-courts - the form of procedure in those courts - the remedy for those aggrieved by their decisions, by summary complaint to the Court of Session - and the penalty if such complaint is dismised - the statute 16th Geo II. cap. 11. is the rule in all those particulars.
Corruption and perjury in the electors are restrained by penalties contained in act 2d, Geo. II. cap. 24.; and the penalty for the Clerk of Court making a false return, is statuted by act 7th, Geo. II. cap. 16.
Fol. Dic. v. 3. p. 401.
Subject_2 DIVISION II.
The Qualification of a Freeholder possessing a Forty Shilling Land of old extent.
Subject_3 SECT. I.
Evidence of the old extent.
John Barns v. John Hamilton
Date: 5 December 1780 Case No. No 23.
Evidence of the old extent. Discrepancy in the descriptive and valent clauses of the retour.
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At the Michaelmas head court of the county of Ayr, in 1780, Mr Barns claimed to be enrolled on the four merk lands of Shaw, part of the barony of Glenmuir; and, in order to prove the old extent of these lands, produced a retour of James Earl of Queensberry, dated 20th May 1640, in which they were described as of that value.
Upon summing up the extents of the different lands composing the barony, as specified in the descriptive clause, it appeared that they did not amount to more than L. 15:3:4; whereas the valent stated the whole, in cumulo, at L. 16: 6: 0. From this discrepancy, it was objected by Mr Hamilton, That the retour could not be sustained as sufficient evidence of the old extent of the claimant's lands. This objection having been brought under the review of the Court of Session, it was
Pleaded for Mr Barns, By the uniform practice of the Court, ever since the decision in the case of the Lennox retour, about 40 years ago, a discrepancy of that sort, arising from an excess in the valent, has been held out to detract from the faith of the retour: For the cause of this excess must always be, either an error in calculation, or else the omission of some of the lands, or their being stated at too low a value, in the descriptive clause. In the present case, therefore, the discrepancy might, indeed, give some room to suppose that the old extent of the lands in question may have been a few shillings above four merks, but is plainly inconsistent with its having been below that value.
The Court repelled the objection.
Act. G. Fergusson.Alt. Wight & Ja. Boswell.
Fol. Dic. v. 3. p. 403. Fac. Col. No 1. p. 1.
