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Scottish Court of Session Decisions >>
Sir William Forbes, Bart. and Others, v Sir John Macpherson, Bart. [1789] Mor 8769 (6 March 1789)
URL: http://www.bailii.org/scot/cases/ScotCS/1789/Mor2108769-150.html Cite as:
[1789] Mor 8769
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.
Sir William Forbes, Bart and Others, v. Sir John Macpherson, Bart
Date: 6 March 1789 Case No. No 150.
In order to discover whether a qualification was nominal and fictitious, a number of particular interrogatories were proposed. The Court of Session found it incompetent to put them; but the judgment was reversed in the House of Lords.
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Sir John Macpherson, as liferent superior of certain lands of the requisite valuation, was enrolled as a freeholder in the county of Aberdeen.
Of this enrolment Sir William Forbes, and several other freeholders in the same county, complained to the Court of Session, in terms of the election statutes, contending, That the rights on which Sir John Macpherson's claim was founded, were nominal and fictitious.
In order to shew that this was really the case, the complainers required Sir John to confess or deny,
1mo, Whether the conveyance of the lands contained in Sir John's titles was not made out without his previous consent or knowledge? At least, whether Sir John was not solicited by the Duke of Gordon, from whom he derived his right, to accept of a freehold qualification?
2do, Whether the expense of making out the title-deeds was not paid by his Grace?
3tio, Whether those title-deeds were delivered to Sir John before his enrolment? or whether they were in his possession at any time previous to this period?
4to, Whether, when he was informed of the conveyance, he thought himself called upon to defray the expense of defending his title in the Court of Session, or elsewhere?
5to, Whether he did not, when he accepted of this conveyance, and does not still, consider himself as in honour bound to vote for the candidate who may be patronised by the Duke of Gordon, and to renounce his freehold qualification at his Grace's pleasure?
In the answers given in for Sir John, it was maintained, That the particulars mentioned by the complainers could not be proved in the manner here proposed.
In deciding this matter, two votes were put; 1st, Whether it was competent to examine Sir John on the proposed interrogatories? And, 2dly, Whether, on account of the small value of the liferent estate in a pecuniary view, as appearing from the face of the right itself, the freehold qualification was to be considered as nominal and fictitious? Both these questions were determined in the negative by a small majority. Accordingly
“The Lords found it incompetent to put the questions to the respondent proposed by the complainers, and repelled the objection, of nominal and fictitious, to the respondent's qualification; and therefore dismissed the complaint.”
For the Complainers, Wight, et alii.Alt. Tait, et alii.Clerk, Gordon.
Fol. Dic. v. 3. p. 419. Fac. Col. No 67. p. 121.*** This case was appealed:
The House of Lords, 9th April 1790, “ordered, That the interlocutors complained of be reversed; and it farther ordered, That the respondent do confess or deny the averments in the appellants' pleadings.”
