Thomas Dunlop douglas, Esq. Appllent - Skene v. Sir James Colquhoun - Forsyth [1823] UKHL 1_Shaw_493

UKHL
Thomas Dunlop douglas, Esq. Appllent - Skene v. Sir James Colquhoun - Forsyth
[1823] UKHL 1_Shaw_493 · 1819-02-09
Held, (affirming the judgment of the Court of Session,) That a retour of feu-lands bearing the old extent to be £4: 3: 4, and the new extent and feu-duties to be £4. 5s., was not sufficient to establish that the lands were a forty shilling land of old extent.The appellant Thomas Dunlop Douglas, having claimed to be enrolled in the roll of freeholders of the county of Dumbarton, produced in support of his claim,—1. A charter of resignation

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The reddendo in this Crown charter was in the following terms:—

“Reddendo inde annuatim dictis Thomæ Dunlop Douglas ejusque prædict., nobis nostrisque regiis successoribus immediatis, legitimis superioribus earundem, summam quatuor librarum quinque solidorum monete Scotiæ apud terminos Pente costes et Sancti Martini in hieme, per equales portiones, nomine feudifirmæ, si petatur tantum, idque pro omni alio onere, exactione, demanda, seu servitio seculari.”
2. An instrument of sasine thereon;—and, 3. A retour of the service of one of the former proprietors of the estate, dated the 19th of October 1496, in order to prove that the lands were a forty shilling land. In relation to the valuation of the lands, the retour was thus expressed:—
“Et quod dicte terre, cum pertinen., valent nunc per annum quatuor libras et quinq. solidos monete hujus regni, et valuerunt tempore pacis quatuor libras tres solidos et quatuor denarios ejusd. monete; et quod tenentur de dicto S. D. N. Rege et suis successoribus in feudifirma et hæ pro annua solutione prefat. S. D. N. et suis suprascriptis dicte summe quatuor librarum et quinq. solidorum ad duos anniter minos, festa, viz. Penthecostes et Stl Martini in hieme, per equales portiones, ac duplicatione dicte feudifirme primo anno introitûs cujuslibet hæredis in et ad dictas terras cum pertinen.”
The freeholders having sustained the claim, Sir James Colquhoun presented a petition and complaint, praying to have Mr. Douglas's name expunged from the roll. In support of this complaint he objected,—1. That it was requisite by the statute 1681 that a claimant in virtue of the old extent should be “in possession of a forty shilling land of old .extent, holden of the King or Prince, distinct from the feu-duties and feu-lands:” that by

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Mr. Douglas having reclaimed, the Court ordered a hearing in presence, and thereafter, on the 18th of June 1822, adhered to the interlocutor complained of. *The Lord Justice-Clerk was of opinion,—1. That the Court could not regard the collateral evidence which had been referred to by Sir James Colquhoun, but that the question must be decided entirely by the legal import and effect of the retour itself.—2. That if the question had arisen for the first time, he would have had very great difficulty; but that a principle had been established by a series of decided cases, that although the old extent and the feu-duties were retoured separately from each other, yet if they were the same, or nearly the same in point of amount, it was to be presumed that the jury had just adopted the feu-duties as the old extent, and therefore the retour did not prove that the lands were a forty shilling land of old extent, distinct from the feu-duties;—and, 3. That that principle applied to the present case, and therefore that Mr. Douglas was not entitled to be enrolled.Lords Craigie and Robertson concurred in this opinion.

Lord Glenlee , on the other hand, held that the decisions went

Footnote

* See Shaw and Ball. No. 556.

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Lord Bannatyne concurred in this opinion.Mr. Douglas having appealed, the Lord Chancellor moved, and the House of Lords ordered and adjudged, that the interlocutors complained of be affirmed.Appellant's Authorities. —(1.)—1594, c. 233; 1597, c. 281; 2. Craig, 17 * 36; Balfour, 430; Skene de Verb. Sig. voce Extent; Freeholders of Linlithgowshire, June 14.1746, (8574, see also the Notes of L. Kilkerran's Session Papers, Adv. Lib. No. 64, and Elchies' Notes, p. 268); Freeholders of Perthshire, June 24. 1747, (8576); Kerr, Nov. 10. 1747, (8577, and Elchies, No. 49. M. P.'); 3.Ersk. 8. 66.—(2.)—Cranstoun, May 16. 1816, (F. C.); Gibson, June 13.1818, (F. C.); Nicolson, May 15,1819, (F. C.) Respondent's Authorities .—(1.)—2. Craig, 17. 29; 3. Ersk. 8. 67; 2. Ersk. 5. 33; 1457, c.71; 1503,c. 90;2. Craig,17.36; Dallas,886; 1594,c. 229; 1597, c. 277; Freeholders of Linlithgow shire and Perthshire, ut supra; Hamilton, Jan. 19. 1745, (Elchies, No. 23. M. P.); Kerr, Nov. 10. 1747, (ib. No. 49); Dickson, Nov. 10. 1747, (ib. No. 48.)Solicitors: H. Riddell,— Spottiswoode and Robertson,—Solicitors.

( Ap. Ca. No. 25.)

Footnote

* In Lord Elchies' printed report it is said that ‘both the old and new extent were retoured to 7 merks and 4 pence, and the feu-duty to 7 merks and 40 pence;’ but it was stated by the appellant that this was an error, as it appeared from the printed retours, p. 4, that instead of 4 pence it was 40 pence, and that the retour added, ‘et valuerunt tempore pacis summam antedictam.’