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Scottish Court of Session Decisions >>
Magistrates of Linlithgow, v The Kirk Session thereof. [1739] Mor 2304 (4 December 1739)
URL: http://www.bailii.org/scot/cases/ScotCS/1739/Mor0602304-048.html Cite as:
[1739] Mor 2304
Right of Electing, with Advice and Consent. - Discharge of all Claims against a Predecessor's Estate. - The term Heirs Female. - Provision to Children in full of all Claims. - The term Children in a Testament.
Magistrates of Linlithgow, v. The Kirk Session thereof
Date: 4 December 1739 Case No. No 48.
A right to elect to an office, with the advice and consent of another, was found to imply a negative; and that an election without the consent, was ineffectual.
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The right of elecsion of the precentor of Linlithgow, by an old deed between the kirk session and the town, being in the kirk session, with advice and consent of the magistrates and town council, the question was as to the import of giving advice and consent, whether, in case of their dissenting, the kirk session had power to judge in the first instance of the cause of their dissent, leaving to the magistrates to seek redress by suspension or reduction? or if thereby the magistrates had in effect a negative, so that in case of their refusing their consent, there is no election?
The Lords were of opinion, That the magistrates had a discretionary power to consent to, or to dissent from, the election, as they should see cause; and that, without their consent, there could be no election: And therefore ‘suspended the election of the precentor made contrary to the opinion of the magistrates; reserving to the kirk session to sue for redress as accords.’
Fol. Dic. v. 3. p. 123. Kilkerran, (Advice and Consent.) No 1. p. 20.
