with the exception of that of Mr Macnight Crawford, to be ' remitted back to the Court of Session, to hear parties fur'ther thereupon, with liberty to receive such new allegations as the occasion may require; and with liberty for the respondents, in the Court of Session, to call upon the appellant to confess or deny such averments, as to the alleged nominality, as the respondents, by interrogatories, according 'to the course of the Court, shall call upon him to confess or deny 1'

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This kind of confidential understanding, demonstrated by proper evidence, must, however, be carefully distinguished from that species of connection between the parties, which consists in relationship, or may be the legitimate result of ordinary gratitude. There must, in the words of Lord Chancellor Eldon, be a ' paramount obligation,' or 'honorary obligation,' which renders the voter the mere creature' of the granter. Those feelings of natural affection and of dependence experienced by a son towards a father, are not held to be fatal to a qualification derived by the former from the latter. Neither will a vote necessarily he reckoned confidential in a legal sense, although it may have been obtained from an intimate friend, towards whom the receiver, perhaps, entertains strong sentiments of gratitude for favours previously received. The voters, in these instances, may very likely feel inclined to forward the general political views of the granters, but still that sentiment which naturally arises from the relative situation of the parties, is not held to be fatal to the qualification *."

1 Fac. Col. for 1819, p. 772.

The law on this head is admirably laid down by Lord Eldon, in the cases which have just been referred to. See the passage which has been already quoted, p. 209: and in a subsequent passage, his Lordship observes, We are here upon an infinitely delicate subject. I agree the ob'jection is founded, if the estate can be shewn from circumstances, from 'the refusal of the party to be examined upon interrogatories, or from his ' deficient answer to those interrogatories, to be an estate not given to him 'for his own use and benefit, to be used by him as he shall think proper. 'But I follow Lord Thurlow in opinion, that, if the grantee shall, from

In a case where a freehold qualification had been given to a friend in exchange for another, and where the donors were respectively candidates at the next general election for the counties to which the qualifications given away belonged, the feeling of mutual good will which might be supposed to exist between the two individuals was held not to affect the qualifications 1.

It seems also to be settled, that the circumstance of the grantee being the agent or man of business of the granter, is not sufficient per se to infer such a confidential understanding between the parties, as to vitiate the qualification 2.

Where a qualification has once been constituted upon such a mutual understanding between the parties, as to render it confidential in a legal sense, that character cannot afterwards be removed by the granting of a deed, on the part of the donor, discharging any obligation on the part of the receiver. Such a document may be regarded as a mere form, which cannot alter the original nature of the transaction. Thus, where a vote had been found to be confidential in the Court of Session, its nature was held not to be changed by the production of a declarator and discharge by Thomas Graham, Esq. of Kinross, (the granter of the vote), of any obligation

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'the obligation of gratitude, act in the same interest as his friend the 'granter, that is no objection. Where a father gives to his son a qualifi'cation; where an uncle gives to his nephew a qualification; where a 'brother gives to a brother a qualification; it is very difficult to suppose ⚫ that the qualification is given by the father, uncle, or brother, without conceiving, that, in the one instance, filial affection, and, in the other instances, the affections resulting from those relationships, will induce the party to vote in the same interest with his relative and patron. But ' authorities cited in argument prove, that there must be something further; that you must make out that there is this understanding between 'the parties.'-See also the case of Belshes v. Smith, 29th June 1809; Fac.

1

1 Montgomery v. Dalrymple, 2d March 1813.

2 See the Session Papers in the case of Macqueen v. Nairn, 23d January 1823, from which it appears, that this circumstance was founded upon

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upon the said John Campbell (the receiver), to redispone,

express or implied 1.'

SECTION 7.

Of Alteration of Circumstances.

The act 16th Geo. II. c. 112 provides, that, if no complaint shall be exhibited against the enrolment of a freeholder, within four months from the date of enrolment, he shall 'stand and continue upon the roll, until an alteration of his 'circumstances be allowed by the freeholders at a subsequent 'Michaelmas meeting, or meeting for election, as a sufficient 'cause for striking or leaving him out of the roll.'

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By another section of this act3, an alteration of the circumstances of a freeholder is defined to be an alteration of 'that right or title in respect of which he was enrolled.' It will be proper to inquire what is held to be such a change of title.

It is held not to be an alteration of circumstances in the sense of the act, if a freeholder merely parts with the dominium utile of the estate on which he is enrolled, by creating a base right under him; for he is still superior under the Crown'. Mr Wight, however, observes, that it seems proper that he ought to explain the matter to the freeholders, and get his title put on its proper footing, that he may be in condition to take the trust-oath with safety.

It is no alteration of circumstances in the sense of the act, if a freeholder, in making a change in his family settlements, in part. The objection of nominality was either repelled, or at least abandoned. See also Speech of Lord Chancellor Eldon in Lord Eglinton's cases; Bligh, p. 203, as relating to Mr Martin, one of the claimants. 1 Stein v. Campbell, 18th November 1815; Fac. See also the case of Soutar v. Ferguson, 3d March 1807; Fac., already mentioned.

2 Sect. 4.

resigns his lands in the hands of the Crown, and obtains a new charter in favour of himself, and a series of heirs, on which he is infeft. It is also held, that, where a person makes up a new title in his own person by resignation and new infeftment, that circumstance does not bar him from claiming enrolment on his original titles. A person who held certain lands of the Crown, by virtue of a charter and infeftment, obtained a new charter of resignation in favour of a friend in liferent, and of himself in fee; and the liferenter having been enrolled on this title, afterwards renounced his liferent. The fiar was found entitled to be enrolled on these lands, on production of the old titles by which he held them, without producing the charter of resignation, of which an extract only was exhibited 2.

In one instance, the author of a liferenter, already on the roll, resigned into the hands of the Crown, and obtained a new crown-charter, and then granted a new disposition to the same person in liferent, and to another in fee; on which infeftment followed. The fiar lodged a claim of enrolment; and the liferenter concurred, and concluded either to be continued in his former place on the roll, or else enrolled of new, in virtue of his last infeftment. Before a year, however, had elapsed from the infeftment, a general election took place, and, at the meeting, an objection, on the ground of the new titles, was made to the continuance of the liferenter on the roll. This objection was sustained by the freeholders, but was afterwards repelled by the Court 3.

The next case which requires consideration is, where a person standing on the roll conveys away, in favour of another, the subject on which his vote is rested, by a disposition containing, in usual form, procuratory of resignation and precept of sasine. So long as the disponee holds merely by a base

2 Erskine v. Graham, 8th December 1790; Fac., and Session Papers. 3 Campbell v. Fleming, 23d January 1781; Session Papers, and Fac.

right under the person from whom he derives it, the latter is not divested of the superiority of the subject, and would, in every instance, be still entitled to continue on the roll of freeholders, were not his title liable to the objection, that it is defeasible by another, since the disponee may, at any time, get his base right confirmed, or execute the procuratory of resignation, and so divest his author. To determine when this objection proves fatal to the qualification, it will be necessary to examine the different circumstances under which a conveyance may be made.

Where the disposition is granted with a view to an actual transference of the subject to the disponee for his behoof, then the disponee's right, from the time of delivery of the deed, must be held to be dependent on the will of the other, who may, at any time, complete his entry with the Crown; and will no longer constitute a legal qualification, unless the disponee is, in some way or other, bound not to make his right a public one, during the life of his author, but is merely entitled to take infeftment on the precept of sasine, and hold base of the disponer. An obligation, however, of this latter kind, will remove the objection, and entitle the disponer to continue on the roll. Thus, where a disponer had so limited the procuratory of resignation, as not to take ef 'fect till his death,' and where the disponee had granted an obligation, which was put on record, to hold the lands of the complainer during his life, and neither to execute the procuratory, nor confirm a base infeftment, nor adjudge in implement, the qualification was found not to be impaired 1. In like manner, a disposition, granted by a father to a son, was found not to interfere with the qualification of the former, as the latter granted to his father, six months before the meeting at which the objection was made, an obligation not to 'execute the procuratory, nor take any step for divesting him

Dunbar v. Urquhart, 23d February 1774; Fac.