Scottish Court of Session Decisions

Subject_1 MEMBER of PARLIAMENT.
Subject_2 DIVISION VII.

Penalty for a False Return.

Home Campbell
v.
Sinclair

Case No. No 270.

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By 7th Geo. II. cap. 16. § 1. it is provided, “That if the clerk of any meeting of freeholders for the election of a Commissioner, shall wilfully return to the Sheriff any person other than him who shall be duly elected, or if any other person shall presume to act as clerk, and wilfully to return to the Sheriff any person as elected, who shall not be duly elected, the party so offending shall forfeit L. 500; and every Sheriff who shall wilfully annex to the writ any false or undue return, shall forfeit the like sum of L. 500 to the person entitled to be returned.” Previous to the calling of the roll for Preses and clerk at the meeting for election in Berwickshire, anno 1741, protests were taken by Sir John Sinclair, one of the candidates, against eleven of the freeholders of the opposite party; and like protests were taken against fifteen of Sir John Sinclair's friends, by a gentleman in the interest of the Honourable Alexander Hume Campbell; who, as Commissioner last elected, having called the roll as it stood, being sixty-six in number, there appeared to be a majority of four for the Preses and clerk supported by him. Upon this a separation happened, and each party having adjusted the roll, and elected a Member, Mr Hume Campbell presented a complaint against Sir John Sinclair, who had acted as Clerk upon the side of the minority. Answered for Sir John Sinclair, He considered himself as duly elected clerk, of consequence he did not wilfully, but, bona fide, return to the Sheriff a person other than him who was duly elected. The Court of Session sustained the defence; but the House of Lords reversed the decreee, and found the penalty incurred. Nota, The Sheriff-depute annexed to the writ, not only the return of the election by the majority, but likewise that presented by Sir John Sinclair, for which he was ordered to be taken into the custody of the serjeant at arms. Commons Journ. March 19. 1741.

These penalties are altered and amended by 16th Geo. II. cap. 11. by which it is statuted, “That if any person presume to act as Preses or Clerk who is not chosen by the majority of freeholders present standing on the roll, he shall, for every such offence, forfeit the sum of L. 200 Sterling to the candidate who shall be chosen by the majority.” § 14. “And if the clerk (chosen by the majority), shall refuse or neglect to return the person elected by the majority of the freeholders on the roll, or shall return any other person, he shall forfeit the sum of L. 500 to the candidate chosen by the majority.” § 16. “And if the Sheriff shall neglect, or refuse to annex to the writ such return (made by the clerk duly elected), or if he shall annex to the writ the return made by any other person pretending to be clerk to the election, he shall, for every such offence, forfeit L. 500 Sterling to the person returned by the clerk, and chosen by the majority.” See Nov. 19. 1768, Sir John Gordon contra Rose of Kilravock in the Appendix.

Fol. Dic. v. 3. p. 438.