BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
John Campbell and Archibald Tod v The Honourable William Elphinstone. [1787] Mor 8764 (20 February 1787)
URL: http://www.bailii.org/scot/cases/ScotCS/1787/Mor218764-143.html
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 Campbell and Archibald Tod v. The Honourable William Elphinstone
Date: 20 February 1787 Case No. No 143.
A person was enrolled on a liferent of superiority of an estate, fettered by a strict entail, of which liferent the pecuniary emolument was not equal to the expense of making out the necessary writings. His qualification was nominal and fictitious.
Click here to view a pdf copy of this documet : PDF Copy
Mr Elphinstone was admitted to the roll of freeholders in the county of Renfrew, at the meeting for election in 1786.
His titles, derived from Mr Shaw Stewart, proprietor of the estate of Greenock, who was fettered by an entail of the strictest sort, imported a bare liferent of superiority, the pecuniary advantages of which were nowise adequate to the expense of making out the necessary writings.
A majority of the Judges were of opinion, That the qualification grounded on these titles was nominal and fictitious. A conveyance from the proprietor of an entailed estate, it was observed, might, in some instances, afford an unexceptionable right to vote. But in distinguishing real qualifications from such as were nominal and fictitious, the circumstance of the person from whom the right was obtained being under restraints of this sort, had a considerable weight, as it could hardly be doubted, that the grantee was at least under an implied obligation to reconvey his right whenever this became necessary to prevent a forfeiture; and when to this was joined the presumption arising from the limited nature of the right itself, it was impossible to consider it as one to which the Legislature meant to annex a right of voting.
The Lords found, “That Mr Elphinstone's qualification was nominal and fictitious, and that the freeholders did wrong in admitting him to the roll.”
Act. Lord Advocate, et alii.Alt. Dean of Faculty, et alii.Clerk, Robertson.
Fol. Dic. v. 3. p. 419. Fac. Col. No 315. p. 489.*** This case was appealed:
The House of Lords, 30th April 1787, ordered, “That the cause be remitted back to the Court of Session in Scotland, to hear parties farther thereupon, with liberty to receive such new allegations and evidence as the occasion may require.”
