Scottish Court of Session Decisions

Subject_1 MEMBER of PARLIAMENT.

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. II.

Can Retours be divided? - Retours of Church Lands. - Of Heritable Offices. - Objections to Retours.

Walter Scot and Archibald Tod
v.
John Millar

Date: 20 February 1787
Case No. No 41.

Objected to a retour, that the lands had been valued along with the offices of coroner and mair of fee, which were now in disuse, and which, at any rate, could not give a freehold qualification. To this it was thought a sufficient answer, 1st, That in the retour no value had been put on these offices; and, 2dly, That by another retour, which, though not mentioned in the claim, had been produced in the freeholders' court, it had been certified, “Quod dicta officia corenatoris et maris feodi, &c, nunc valent per annum debito exercendo sui servitii, et tantum value-runt tempore pacis.”

Click here to view a pdf copy of this documet : PDF Copy

The superiority of the lands of Ardgowan, belonging to Sir Michael Stewart, was conveyed by him to Mr John Millar; whom failing, to Mr Shaw Stewart, Sir Michael's eldest son, his heirs and assignees whatsoever; and this, with the exception of a liferent which had been formerly made over to another person. The yearly feu-duties amounted only to L. 2: 14: 8½ Sterling.

In virtue of this conveyance, Mr Millar was enrolled among the freeholders of the county of Renfrew, as fiar of the superiority of the above mentioned lands, to vote in the absence of the liferenter.

In a complaint preferred in the name of Walter Scott and Archibald Tod, on occasion of these proceedings, it was

Pleaded, It is now held, That a qualification founded on a liferent of superiority is nominal and fraudulent, when the produce of the right is so very inconsiderable as not to defray the expence of the necessary writings. A fee of superiority, of an equal extent, must certainly be judged of in the same manner. The conveyance in perpetuity of a right which is of no value, cannot be distinguished, in point of nominality, from a grant of the same right to be held during the lifetime of the grantee. In truth, the fee in the present case is, if possible, more nominal than the liferent; for, with regard to this last, the holder may, at least during his life, recover from the vassal the annual prestations, such as they are; which the fiar, if he do not survive the liferenter, will never have an opportunity of doing.

Answered, There is nothing in the present case which can difference the fee of superiority held by Mr Millar from those of the same nature, which are expressly recognized by the statute of 1681, and which have ever since been held to constitute an unexceptionable freehold qualification. As to the clause of substitution in favour of Mr Shaw Stewart, it has been repeatedly determined, that this is merely of the nature of a destination, alterable by the immediate holder of the right, and of which the person favoured cannot avail himself, without becoming liable, as heir of provision, for the debts of his predecessor.

It was separately objected to this enrolment, That by the retour referred to in the claim which had been exhibited for Mr Millar, the lands had been valued along with the offices of coroner and mair of fee, which were now in disuse, and which, at any rate, could not give a freehold qualification. But to this it was thought a sufficient answer, 1mo, That in the retour above mentioned no value had been put on these offices, the total amount of the sums in the valent, precisely agreeing with the value of the other articles, as specified in the descriptive clause; and, 2dly, That, by another retour, which, though not mentioned in the claim, had been produced in the freeholders' court, it had been certified, “Quod dicta officia coronatoris et maris feodi, &c. nunc valent per annum debito exercendo sui servitii, et tantum valuerunt tempore pacis.”

“The Lords dismissed the complaint.”

Act. Geo. Ferguson, et alii. Alt. Maclaurin, et alii. Clerk, Robertson. Fol. Dic. v. 3. p. 404. Fac. Col. No 317. p. 491.

*** In a case, Murray of Broughton against Clark, decided 14th July 1774, the question was, Whether the retour afforded sufficient evidence of the separate old extent of the lands, exclusive of the office of Bailie? In order to show that it did not, it was maintained, That there was no correspondence between the descriptive and valent clauses, without holding that the office had been extended to six merks, of which there was no evidence in the retour; therefore, the description of the lands at five merks might have been erroneous. The Court sustained the objection.—See Wight, p. 170.—See Appendix.