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 I.

Privileges.

Kennedy
v.
Cumming

Date: 25 June 1712
Case No. No 6.

A party had obtained reversal in the House of Lords, of a decree of the Court of Session with a remit to that Court to tax the expenses. The other party pleaded privilege as a Member of Parliament. Disallowed.

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Sir Andrew Kennedy having, in April 1711, obtained Sir Alexander Cumming of Coulter's decreet reversed, and himself reponed to his Conservator office by the House of Peers, and obtained their remit to the Lords to tax his expenses, he applied in June 1711, to have them modified, and gave in an account of L. 1800 Sterling. But it being answered that Sir Alexander was out of the kingdom, and not bound to answer till cited, the Lords ordained him to be summoned on 60 days, which put off the summer session, and brought it to the 1st of November, at which time Sir Andrew Kennedy renewing his claim of expenses, Sir Alexander founded on his privilege as a Member of Parliament; which being allowed by the Lords, though the English Parliament was not then set down, Sir Andrew protested of new for remeid of law, and finding it would be tedious to bring it in formally, he was advised by the English lawyers to table it by way of summary complaint; whereon he obtained a deliverance, ordering the Lords of Session forthwith to tax his expenses, and direct their payment. On this he now gives in a bill to the Lords, deducing all the steps aforesaid, and craving their modification of expenses after 14 months delay. The Lords found, by this last ordinance the Peers had laid aside his privilege of Parliament, and therefore appointed Sir Alexander Cumming summarily to answer; for if it should be delayed till November, he would of new again found upon his privilege; but the Peers seem to have waved it as not competent in this case.

Fol. Dic. v. 1. 572. Fountainhall, v. 2. p.743. *** Forbes reports this case:

1712. June 26.—Sir Andrew Kennedy set forth, in a petition, an order and decree of the House of Peers, dated 19th April 1711, reversing the Lords' decreet in favour of Sir Alexander Cumming, and ordering their Lordships to direct expenses in the suits mentioned in the said order, to be taxed according to the course of the Court; pursuant whereunto he had, by appointment of their Lordships, 21st July 1711, summoned Sir Alexander Cumming. The Lords, 9th November 1711, upon Sir Alexander's pleading his privilege of Parliament, sustained his plea, notwithstanding he had waved his privilege, by answering before the House of Lords, and could not reassume it, especially against the execution of a sentence passed upon compearance. This occasioned the petitioner to protest for remeid of law; but, upon better advice, he gave in a summary complaint to the House of Peers, as a more expeditious and less expensive way to obtain remedy, who thereupon directed a second order to the Lords of Session, That they should forthwith tax the said expenses, and direct the same to be paid to the petitioner, pursuant to the order and judgment above-mentioned. Therefore the petitioner prayed their Lordships to resume the consideration of the affair, and his account of expenses, and forthwith to proceed to determine therein, and order payment thereof.

Answered for Sir Alexander Cuming; He conceived himself not bound to answer to the petitioner's claim, unless he were cited, and had the induciæ legales, as the Lords found last year upon the same question; nor can the former summons support the present petition, because the Lords have determined upon a point of privilege belonging to Sir Alexander, as a Member of the House of Commons; and Sir Andrew having protested for remeid of law, the Lords are functi, and he is out of the field, until that protestation be regularly discussed. For the order now insisted on, viz forthwith to tax, is to be understood in civil and habile terms, that is summarily, without abiding the course of the roll, but never without a citation and libel, which is essentially and previously necessary to the obtaining of any decerniture whatsoever upon the most summary complaints, even against persons present, unless there were an action depending, in which the complaint is receivable by way of incident, which cannot in this case be said, seeing the former dependence in the principal cause is determined by a decree.

The Lords found, That Sir Alexander Cumming must answer to the petitioner's claim of expenses, without necessity of any further citation.

Forbes, p. 604.