Scottish Court of Session Decisions

Subject_1 MEMBER of PARLIAMENT.
Subject_2 DIVISION IV.

Decisions common to qualifications upon the old extent and valuation.
Subject_3 SECT. III.

Nominal and Fictitious.

The Freeholders of Kincardineshire
v.
Burnet of Crigie

Date: 30 July 1745
Case No. No 135.

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Burnet, Elder of Crigie, disponed part of his estate to his eldest son, and he gave a charter thereof to his father, to be held of him blench.

Objected to the title of the son to stand on the roll of electors for the said shire, That he had no real interest, but that his title was fictitious, nominal and created on purpose to make a vote; and, therefore, ought not to be sustained, in terms of the statute anno 7mo Georgii II. and there was a difference betwixt voting on a superiority and this case, where the superiority was made on purpose, and vested in an eldest son, who being to succeed to his father in the property, could not have so much as the casualty of entering heirs.

Answered, That a superiority was a good title, and the interest here, of how little value soever, was real, as he did not hold it for the behoof of any one else, nor was under any obligation to denude.

The Lords repelled the objection.

Act. Burnet. Alt. H. Home.

1746. June 19.—In this question, wherein the determination of the court, 30th July 1745, sustaining the respondent's title, is already observed, a reclaiming petition was presented and answered, in which what most weighed was, that the claimer of a vote behoved to depone that he had not made any disposition of the lands or rents thereof, or any promise for that effect, other than appeared by the contents of the rights under which he claimed.

The Lords altered their interlocutor, and sustained the objection.

Petit. Ferguson. Resp. H. Home. Clerk, Gibson. Fol. Dic. v. 3. p. 417. D. Falconer, v. 1. p. 127. & No. 118. p. 146. *** Lord Kames reports this case.

1746. June 19.—William Burnet of crigie, intending to qualify his son to be put upon the roll of freeholders in the county of kincardine, disponed to him certain lands; and the son expede a charter under the Great Seal, and granted a charter to his father of the same lands, to be held of him for payment of a blench-duty of two pennies Scots, si petatur tantum. This qualification was called in question by a complaint laid upon the statute, at the instance of some of the freeholders of the shire. And the objection against it was, That it is manifestly collusive, and upon the statute anno 7mo Geo. II. a nominal or fictitious estate, created in order to enable the young Gentleman to vote for a member to serve in parliament.

In answer to this objection it was pleaded, that it is not relevant to say, that a man's title to an estate is created in order to procure a vote; for such titles are created every day, where the principal view of the purchaser is in order to have a vote; but, in terms of the statute, it must be a nominal or fictitious title, created in order to a vote. Now, it is clearly expressed in the other clauses of the oath of trust, what a nominal or fictitious title is, viz. “Where the person in the fee is under an obligation to re-dispone; and, consequently, holds the estate depending on the will of another, or is under an obligation to make the rents and profits furthcoming to another; and, consequently, does not hold the estate for his own use and benefit.” And to apply this to the present case, it may be true that Mr Burnet's estate affords him little rent or profit; but then it is likewise true, that he enjoys all the rents and profits which arise out of that estate, and that he is not bound to account for these rents and profits to any one, nor stands under any obligation to re-convey the estate. So that it cannot be qualified in terms of the statute, that his title is nominal or fictitious; though it may be true, that the principal or only intendment of the transaction was to entitle him to a vote.

“The Lords first repelled, and afterwards sustained, the objection.”

Rem. Dec. v. 2. No. 75. p. 116.