Subject_1 MEMBER of PARLIAMENT. Subject_2 DIVISION IV.
Decisions common to qualifications upon the old extent and valuation.
Subject_3 SECT. IX.
Alteration of Circumstances.
John Russel v. William Ferguson
Date: 7 March 1781 Case No. No 200.
A party granted to his son a disposition of the lands on which he had stood on the roll. His son was infeft; but, six months before an election, granted an obligation not to execute the procuratory. The disponer found to have suffered no such alteration of circumstanses as to occasion his expunction from the roll.
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Mr Ferguson stood upon the roll of freeholders in the county of Ayr as infeft in the lands of Auchinsoul. In the year 1766 he granted a disposition of these lands to his son, containing procuratory and precept, and the son took infeftment on the precept.
In the month of April 1780, Mr Ferguson, for the purpose of preserving his freehold qualification, obtained from his son an obligation “not to execute the procuratory, nor take any step for divesting him of the superiority of the lands during his life.” And this obligation was immediately recorded in the register of renunciations and reversions.
At the meeting for election taking place six months after the date of this obligation, an objection was stated to Mr Ferguson's title, that, by granting the disposition of his estate, his right therein became defeasible, and of course ceased to entitle him to the privileges of an elector; and that the obligation from his son, not having been perfected year and day, was ineffectual to restore him.
This challenge, which was over-ruled by the freeholders, was brought under review of the Court of Session, when it was
Pleaded for Mr Ferguson; Freeholders cannot expunge a person from the roll, on account of an alteration of circumstances, where the title on which he was admitted cannot be defeated by such alteration. The amount of the present objection is, that it was in the power of a third party, at one period, to have defeated the respondent's freehold qualification
The requisite of year and day, introduced by the 12th of Queen Anne, and continued by subsequent statutes, was calculated to prevent the admission of nominal and fictitious voters, reared up on the eve of an election, not to afford a captious and unnecessary challenge against persons already enrolled.
Had Mr Ferguson been divested of the superiority, it might have been contended, that the same formalities were necessary as in a new acquisition. But he has at every period been superior of the lands; and no deed by his son, nor diligence of his creditors, can denude him.
‘The Lords repelled the objection, and dismissed the complaint.’
Act. W. Bailie.Alt. J. Boswell.
Fac. Col. No 49. p. 87.
*** A similar case had occurred from Perth in 1765, Craigie of Dumbarnie, See Wight. See Appendix.
