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.

Thomas Forrester of Dunnovan, and Other Freeholders of Stirlingshire,
v.
Andrew Fletcher, Esq; Younger of Salton, Lieutenant James Campbell, and David Gourly of Kepdarroch

Date: 9 January 1755
Case No. No 137.

A right of superiority of lands found to entitle to a vote, though the charter contained an obligation to re dispone the lands.

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Andrew Fletcher, younger of salton, lieutenant james campbell, and David Gourly, were, at the meeting for electing a member to serve in Parliament for the county of Stirling, on the 17th of May 1754, enrolled in the roll of freeholders.

Thomas Forrester of Dunnovan, and other freeholders, complained to the Court of Session, and objected, That these three Gentlemen ought not to have been enrolled; because the lands, under which they claimed right to vote, had lately been disponed to them by Sir James Livingstone and James Campbell of Ardkinglas; and the dispositions from Sir James Livingstone and James Campbell, in favour of the said three Gentlemen, and the charters and sasines following thereon, contained a proviso, that, so soon as they had completed their titles to the lands, as immediate vassals to the Crown, they should re-dispone the property of the lands, irredeemably, in favour of their immediate authors, the said Sir James Livingstone in liferent, and the said James Campbell, his heirs, &c. in fee, who were to hold the lands of the said three Gentlemen for a small elusory feu-duty, and all the casualties of superiority to be taxed to small elusory sums; and, therefore, it was evident their titles to the lands were nominal and fictitious, created only with a view to entitle to vote, contrary to the act 7mo Geo. II. As the law presently stands, a right of superiority entitles to a vote; but where that superiority is, as in the present case, created on purpose to entitle to a vote, under an obligation of immediately re-disponing the property, and taxing the casualties of superiority to small elusory sums, so that the superiority can be of no value whatever; in such a case, the right falls under both the words and meaning of the foresaid statute; and, agreeable to this, the Lords decided, Freeholders of Kincardineshire against Burnet, Younger of Crigie, No 135. p. 8753.

Answered for the defenders, That the objection made to their qualifications to vote, when duly attended to, resolved into this, that a right of superiority did not entitle to vote, which cannot be maintained; as, by law, all the Crown's vassals, who have lands valued at L. 400, or upwards, are entitled to vote, without regarding whether these vassals have the dominium utile, or only the dominium directum, of the lands; and, therefore, the act 7mo Geo. II. was never meant to strike against such qualifications; and the taxing the casualties does not hurt their right to vote; as a superior may lawfully tax, or even discharge, the casualties of superiority.

“The Lords repelled the objections made to the respondents' qualifications; and found them sufficiently entitled to continue on the roll of freeholders for the county of Stirling; and dismissed the complaint.”

Act. J. Dundas, Brace, et Cockburn. Alt. Lockhart et J. Grant. Clerk, Forbes. Fol. Dic. v. 3. p. 417. Fac. Col. No. 124. p. 184.