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 III.

The Qualification of Freeholders possessing Lands liable in Public Burden for L. 400 Scots.
Subject_3 SECT. III.

By what rule are cumulo Valuations to be divided.

Innes of Sandside
v.
Sutherland of Swinzie

Date: 20 July 1753
Case No. No 50.

Instance of splitting a valuation of lands valued in cumulo.

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In the year 1701, by authority of Parliament, there was a valuation of the shire of Caithness. The lands of Reisgill and Berrydale, both belonging to Sutherland of Langwell, were valued in cumulo at L. 800 Scots; and, by authentic documents, preserved, it appears that, at this period, the lands of Reisgill were of yearly rent L. 772 Scots, and of Berrydale, L. 704 Scots Recently after this period, the lands of Reisgill and Berrydale were separated, and the disponees were entered into the cess books of the shire, by what authority is not known, as liable for cess each of them, at the rate of L. 400 valuation; and the use of payment, conformable to this valuation, was continued for 40 years by the proprietor of Reisgill, as well as by the proprietor of Berrydale. In the year 1751, Sutherland of Swinzie, proprietor of Reisgill, finding no decree of the Commissioners of Supply, authorising a division of the original valuation, was advised, in order to remove all objections, to apply to the Commissioners for a division. The Commissioners took under consideration, not only the old rent, as vouched by rentals, but also the present rent of both estates, and pronounced a decree agreeable to the division made in the cess books, and to the use of payment; and, upon the authority of this decree, he was enrolled.

Innes of Sandside, one of the freeholders, complained to the Court of Session, and holding the present rent to be the rule of division, charged the Commissioners with partiality and iniquity; condescending upon many particulars, where the rent of Berrydale was kept down, and the rent of Reisgill raised above the truth. Answered, 1mo, Since the decreet was formal, which was not refused, the freeholders had no power to review the same upon any ground; nor even the Court of Session, otherwise than in a reduction; 2do, The present rent is never the rule for splitting a valuation, unless by a presumption that it is the same with the old rent; that, in this case, the old rent being legally proved must be the rule; and, by this rule, the rent of Reisgill being higher than that of Berrydale, L. 400 Scots was less than the proportion of the valuation that ought to be laid upon Reisgill; and, therefore, no cause of complaint; 3tio, Laying aside the decreet, the division made in the cess-books, submitted to for 40 years, is legal evidence of a division by consent of parties, which is equal to a division made by the Commissioners; for here, as in all other cases, there is no occasion for the sentence of a Judge, where parties differ not. Nor does it avail, that a purchaser, in order to be entitled to a vote, may take upon him more cess than the land ought to be burdened with; for a decree may be collusive as well as a private agreement, and, in neither case, is collusion to be presumed; the objection is nothing, unless it be verified.

Replied to the first, A decreet, dividing a valuation, serves two purposes; one direct, and one indirect. The direct effect is to ascertain the cess with which the land is to be burdened; and, with regard to this effect, the decreet cannot be challenged but by reduction. It has an indirect effect to serve as evidence of a qualification; as to which, the barons or freeholders are judges of the evidence; and, therefore, they are not bound to admit, as good evidence, a decree, which, to them, appears partial or iniquitous. To the second, no other reply was made, but to carp at the authority of the old rentals, questioning them as not legal evidence. To the third it was answered, That private consent can have no operation against third parties; and, therefore, cannot have the effect to split a cumulo valuation; because, the public has an interest as well as the private proprietors: This, therefore, must be done by a decree which binds all parties; and without a decree, there is nothing to bar the Collector of the Land-Tax from quartering upon any part for payment of the cess of the whole lands contained in the cumulo valuation.

The Lords were first of opinion, that the old rentals were sufficient evidence of the old rent, and a good foundation for the decreet of division; consequently, that the Commissioners had committed no iniquity in laying half of the original valuation upon Reisgill. But, upon a reclaiming petition and answers, it was carried by a majority to alter; and Swinzie was ordained to be expunged from the roll.

I can have little doubt that the use of payment of the cess for 40 years, according to the cess-roll, binds all parties, the King not excepted; and, therefore, is in all views equivalent to a formal decreet of division. The greatest confusion must follow were the law otherwise; for how can it be expected, that decreets of division are to be preserved for ever? Why not provide a remedy against the injuries of time, in this particular, as well as in all others? The Judges, indeed, seemed to be all of this opinion. The plurality who were for the complaint, put their opinion upon this narrow footing, that Swinzie's act of applying to the Commissioners was evidence against him, that there never had been a decreet of division. This evidence is extremely slender. But, admitting it to be good, For what good reason ought not an acquiescence of the Commissioners, for 40 years, to be held equivalent to their decree? For, as it is their business to see the land-tax effectually secured, their acquiescence in a private division presumes that the division is justly made, without collusion.

Sel. Dec. No. 49. p. 56.