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.

John Macadam
v.
James Home

Date: 10 February 1797
Case No. No 155.

The objection of nominal and fictitious against a liferent of superiority, found to be removed by an onerous disposition to the fee of it, granted on the morning of the day of election, at which the claim of enrolment was made.

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John Macadam, in 1789, obtained a disposition in liferent of the superiority of lands affording a freehold qualification in Ayrshire, upon which he was soon after infeft; but he did not claim to be enrolled till 17th June 1796, at the meeting for electing the Member for the county, when, besides the former titles, he produced to the meeting a disposition of the fee of the superiority, dated that day, and bearing to have been granted for an onerous cause.

The meeting, after putting a number of questions to him, rejected his claim.

In a petition and complaint, in which James Home, who made the objection in the court of freeholders, was cited as a defender, the points at issue came to be, 1mo, Whether the disposition to the liferent was nominal and fictitious? and, 2do, Supposing that question determined in the affirmative, Whether the disposition to the fee gave the complainer a right to vote at the meeting?

On the second point, the defender contended, that a disposition obtained in such circumstances, and upon which the claimant was not infeft, did not remove the objection of nominal and fictitious; March 1791, Cases of Cheap and Ferrier.——See Appendix.

Answered; A person claiming enrolment, must not only hold an estate giving a qualification, but he must produce the titles feudally vesting it in him to the freeholders. By the act 1681, c. 21. it did not signify how recently the right had been obtained; but, by 12th Anne, c. 6, and 16th Geo. II. c. II, it was made necessary that the titles produced should be completed a year before the claim of enrolment is made. These statutes, however, make no alteration on the former law as to the nature of the claimant's right to the estate to which the titles relate. Wherever, therefore, the objection appears ex facie of the titles, any deed to remove it must be dated a year before it is produced; Dundas against Craig, No 166. p. 8788.; Grant against Hay, No 168. p. 8791. But where the qualification, as in this case, is ex facie unexceptionable, and the objection goes to the claimant's being bona fide in right to the estate, it may be removed at any period before the claim is made; Colquhoun against Urquhart, No 132. p. 8750.; Dunbar against Urquhart, 23d February 1774, infra h. t.; 7th March 1781, Russel against Ferguson, infra h. t.; 20th February 1787, Macdowall against Crawford, No 148 p. 8767.

Upon advising the petition, with answers and replies, the propriety of the decision in the cases of Cheap and Ferrier was doubted; and upon the grounds stated for the complainer, the Lords sustained the vote*.

Act. Tait, et alii. Alt. Geo. Fergusson, et alii. Clerk, Sinclair. Fac. Col. No 17. p. 40.

* The Court at the same time determined, on the same principle, a case, Colonel Fullarton against John Anderson, in which the disposition to the fee was dated a few days, and the infeftment recorded the day before the election.——see Appendix.