Although the Court has undoubtedly held that the old extent is not distinct from the feu-duties in the sense of the act 1681, even in cases where the old extent and feu-duties were not of the same amount, yet in those cases they were nearly the same; and the Court has not yet directly decided in any case that it is necessary, that more than 40s. should remain after deducting the feu-duty mentioned in the retour 1.

nion, that each parcel of forty shilling lands afforded a freehold. It will be observed, that there is a distinction between this case and that of Colquhoun, inasmuch as in the former the particulars of the old extent of the valent clause are stated in the descriptive; and this circumstance may be held to overcome the presumption, from the nearly coinciding value of the feu-duty and old extent, that the jury were influenced by the amount of the feu-duty in retouring the extent.

'See particularly the opinion of the Court in the Faculty Report of the case of Colquhoun v. Douglas, supra. The following views on this subject, from the manuscript of Lord Auchinleck already alluded to, are very interesting; and, it will be observed that he says not a word as to the necessity of any deduction. In the act 1681,' says his Lordship, p. 13, ‘it is 'said, that the old extent must be distinct from the feu-duty in feu-lands; 'which is a passage some people are apt to mistake. But, when it is ex'plained, it will appear to be quite obvious. In order to this, it is proper 'to observe, that it came to be a practice when lands held feu, the inquest, ' in answer to the question, Quantum terræ valent nunc, et quantum value'runt olim et tempore pacis, very improperly returned their answer, valent 'the precise sum that they were bound to pay of feu-duty, et tantum va'luerunt tempore pacis. It is obvious that this was a most absurd answer 'to the question put by the brieve, and truly was answering cross pur'poses. For the question was, what the lands were worth according to 'the old extent or tax-roll of Scotland, and according to the new extent, 'which was appointed afterwards to be contained in every retour; whereas the answer given, that the superior was entitled to a certain feu-duty, 'both in time of war and in time of peace, was no answer to the question put. However, as this had come to be a general practice, it occurred to 'the Parliament 1681, that, when they were to fix the qualification of an 'elector at forty shillings of old extent, it was necessary to guard against 'this kind of improper old extent, which was to be met with in feu-lands, 'lest a trifling property, suppose an acre of ground only, which paid forty shillings Scots of feu-duty, should have entitled to a voice in the elec'tions, upon the faith of one of these blundering retours; and therefore 'the law requires that it shall be a proper old extent, not the erroneous

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From this explanation it is evident, that it is from feu-duties payable to the king that the extent must be distinct; and, it has accordingly been decided, that, where the retour is that of a subvassal, and the duty is payable to a subject superior, no objection lies against it, even although the old and new extent, and the feu-duty, are all retoured as of the same amount1. Although there seems every reason to believe, that a retour, framed in such a manner, could not have proceeded on any ' extent taken only from the feu-duty; and, accordingly, in many cases 'there are feu-lands which have their old extent properly ascertained by ' a regular retour, and these lands entitle to a vote, although there may ' be also blundering retours, fixing the extent to the feu-duty; for it is ' proved by the regular retour, that they are a forty shilling of old extent, 'properly so called, which consequently is distinct or different from the 'feu-duty, or the extent taken from it. It is to be observed, that some ' retours of the blundering kind above mentioned bear expressly, that the ' valent arises from the feu-duty by adding tanquam feudifirma ex dictis ter'ris debita. Others of them make no mention of the Feudifirma; but when one sees the feu-duty mentioned in the retour, which it always is in the · Tenend. clause, and that it and the old extent and new all agree, this is sufficient evidence that the extent was taken from the feu-duty.

'It is a very nice question, how far, when a retour bears the old and 'new extent to be the same, it ought to be regarded as proof; because this <has almost constantly proceeded from a blunder in the inquest; and if the retour ex facie appears to be blundering, it may well be argued that no regard ought to be paid to it. And in my own private opinion, every ' retour which makes the old extent and new the same, of lands which 'made no part of the old kingdom of Galloway, I should look upon as 'blundering: for it is absolutely impossible to suppose, that lands conti'nued to be of the same rent from the time at which the old extent was taken up, to the time that the new extent was taken up; for that was a 'period of above 200 years; and it is well known, as was observed above, 'that the new extent was three, four, and even five times the old extent ⚫ in different counties. But if the lands were part of the old kingdom of Galloway, and consequently it was altogether uncertain when the old ex'tent of them was fixed, and therefore the disproportion between the old ' and new could not enter into the scale of evidence, I should, in that case, follow the authority of the retour, unless it happened that the lands ' truly held feu, and for the same feu-duty which was made the old and 'new extent. I have seen very old retours of Adamton, where the old ' and new extent are the same.'

accurate estimation, and that the jury had carelessly returned the feu-duty as the old extent; yet, as the clause in the act 1681 has been interpreted to relate to crown feu-duties, and as the statute 16th Geo. II. admits retours in general, without exception, the Court could hardly act otherwise than sustain such a retour as that in question.

2. Of Valued Rent.

The other measure established by the act 1681, of the valuation of the estate requisite for a freehold qualification, is the valued rent; to the history of which it will now be proper briefly to advert.

It has been already stated, that the present system of taxation by valued rent, was introduced in the year 1643. By act of convention in that year1, an aid was imposed, and rolls of valuation were ordered to be drawn up, in each shire, by parishes, in framing which the commissioners were directed 'to informe themselffes of the iust and trew worth of every 'p soun or persouns thair pnt yeares rent of this crope and yeir 1643, to landward, as weill of lands and teinds as of any uther thing, whereby yeirlie proffeit and commoditie ⚫aryseth.'

In the year 1649, commissioners appointed by act of Parliament, were directed to inquire into the true worth of the whole rents within each shire; to rectify former erroneous valuations; to set down a roll for every paroch,' in every shire, consisting of various items; and then to cast up the totall ' of the valuation of the whole shire.' The valuation by old extent was revived, in one instance, in 16653, and was then abandoned for ever, in so far as regarded taxation. In 16671, the system of valued rent was resumed, and the com

1 15th August 1643.

3 4th August 1665.

4 23d January, Act of Convention.

24th August 1649.

2

missioners were directed to consider the valuations of all lands, tey nds, and other real estate;' to approve of those where they seemed just; to value of new such portions of lands, as had formerly been valued together, from belonging to one proprietor, and were now in the hands of different proprietors, and, in general, to rectify erroneous valuations. From the original rolls, which are in few counties preserved, the cess-books have been drawn up; and, according to the valuations in these books, the land-tax is imposed, and the requisite value which affords a freehold qualification is estìmated. Each proprietor's estate, although consisting of various lands, is generally valued in one sum in these books. Hence where purchases have been made, and it is intended to ascertain the requisite valued rent for a vote, it becomes necessary to have recourse to the Commissioners of Supply, for the purpose of having the total valuation divided amongst the portions into which the original estate has been separated. As it thus appears that the Commissioners of Supply have important functions to discharge, in dividing cumulo valuations, and as questions are continually arising with respect to the regularity of their proceedings, it will be necessary to cnter into some inquiry relative to the qualification of those commissioners, the constitution of their courts, the forms and rules which they must observe in framing their judgments, and the power of review of their proceedings possessed by the Court of Session.

Since the annual land-tax was made perpetual, under the power of redemption, by act 38th Geo. III. c. 60, commissioners, for the purpose of carrying that act into execution, are still appointed, from time to time, by acts of Parliament. A particular qualification is, however, attached, by the acts to the office, although the individuals are specially named. The statutes refer to the act 38th Geo. III. c. 5, by which the same qualification is imposed, which was required by the previous supply acts. It is required that those named shall be infeft in property or superiority, or possessed as

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proprietor or liferenter of lands, valued in the roll of the county where they act at L. 100 Scots per annum1, with the exception of the eldest sons and heirs apparent of persons so infeft, who are entitled to vote in those characters without farther qualification. Both superior and vassal are entitled to act on the same L. 100 of valued rent 2. Two persons were also found entitled to act, in virtue of infeftments in the same lands, although neither held immediately of the crown, but were both removed several steps from it 3. A penalty of L. 20 is imposed by the acts, for every acting' without this qualification, to be recovered in a summary way, at the suit of any heritor, before the county court, or Court of Session; and this provision has been interpreted in the latest judgment on this point, so as to inflict one penalty only for the appointment of a clerk, and the fixing of his salary, although two acts, but taking place at one meeting'. The penalty is recoverable, at the suit of any heritor, before the county court or Court of Session.

Besides the persons thus qualified, certain office-bearers of boroughs, if named or appointed in the statute, are entitled to act as commissioners; such are the provost, bailie, dean of guild, treasurer, master of the Merchant Company, deaconconvener of the Trades for the time being, of any royal borough, and any bailie for the time being of any borough of regality, or barony; and these do not require the above mentioned qualification in point of valued rent5.

1 The provision was enforced in the case of Gordon v. Forbes, 12th February 1766; Fol. Dict. iii. 410.

2 Hay v. Hepburn, 25th July 1735; Fol. Dict.

3 Gordon v. Anderson, 21st Jan. 1766; Fol. Dict. iii. 409; and Wight, p. 192.

4 Macadam v. Logan, 25th July 1775; Fac. In the Folio Dictionary, the meeting is said to have been adjourned from one day to another, and still only one penalty was inflicted. It is added, that a different decision was given in two preceding cases, 1766, Gordon v. Forbes; Id. v. Forsyth.

5 Sinclair v. Dean of Guild of Wick, &c. 1st January 1729; Fol. Dict.

iii. 410.