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.
Henry Lindsay v. William Drysdale
Date: 6 March 1788 Case No. No 149.
The trifling pecuniary value of an estate giving a freehold qualification, is not, per se, a sufficient proof of nominality, where there are no circumstances to establish the existence of any latent or implied trust.
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Mr Lindsay's claim to be enrolled among the freeholders of the county of Fife, as liferent-superior of certain lands, was rejected at the meeting for election in 1787, the freeholders considering the feudal titles exhibited for him as nominal and fictitious.
He afterwards preferred a complaint to the Court of Session. Answers were given in, in the name of Mr Drysdale, one of the freeholders; and Mr Lindsay was required to confess or deny the following particulars:
1mo, Whether the right which had been made over to him by his elder brother, the fiar of the superiority, and proprietor of the lands, was not entirely gratuitous?
2do, Whether his brother had not defrayed the expense incurred, not only in framing the necessary writings, and in entering the claim in the freeholders' court, but also in discussing the legality of it in the Court of Session?
3tio, Whether the feu-duty exigible by the claimant was not 2s. 6d. yearly, doubled at the entry of an heir or singular successor?
4to, Whether the right had not been granted by his brother, and received by him, for the sole purpose of giving him a title to vote, and without any regard to the pecuniary emoluments arising from it?
5to, Whether, though the claimant had granted no written obligation to renounce his right when it was convenient for his brother, he did not consider himself as bound in honour to do so? And
6to, Whether, though the claimant had not positively promised to exercise his right of voting at the will of his brother, he did not, however, consider himself as obliged to give his vote to the candidate patronised by his brother, in opposition to his own wishes?
To these questions Mr Lindsay gave in answers, in which he admitted the truth of the four first articles; but, with regard to the 5th and 6th, he declared, That he considered himself to be under no obligation whatever, express or implied, either to give up his liferent, or to exercise his right of voting at the will or for the behoof of his brother, any more than if he had acquired the same right by purchase from a stranger. These answers were subscribed by Mr Lindsay, who professed his readiness to undergo a judicial examination on oath, or to enter into any other enquiry, by witnesses or otherwise, which should be thought necessary for a full and accurate discussion of his right. This enquiry, however, Mr Drysdale declined, chusing to rest his argument on the circumstances which were acknowledged as sufficient for his purpose.
As the general arguments on both sides were the same with those used in the questions occurring in 1786-7, on occasion of the election in the county of Renfrew*, it is unnecessary here to repeat them.
By some of the Judges it was thought, that by the proceedings which had been recently held in the Court of Session, and in the House of Lords, they were now at liberty to enter into a full disquisition as to the legality of what are commonly called nominal and fictitious votes, unrestrained by any former decisions. The majority of the Court, however, being of opinion, that the trifling pecuniary value of the right was not by itself a sufficient proof of nominality,
* See 20th February 1787, Macdowall contra Buchanan, &c. No 142. p. 8759.
and that the other circumstances of the case did not establish the existence of any latent or implied trust in Mr Lindsay,
The Lords found, That the freeholders had done wrong in refusing to admit Mr Lindsay to the roll.
For the Complainer, Dean of Faculty, Macleod Bannatyne.Alt. Blair, Geo. Fergusson.Clerk, Orme.
Fac. Col. No 20. p. 34.
