Scottish Court of Session Decisions

Subject_1 BURGH ROYAL.
Subject_2 SECT. III.

Burgh Election.

James Donaldson and Others,
v.
The Magistrates of Kinghorn

Date: 29 July 1789
Case No. No 31.

In a complaint with regard to the election of a deacon, it is necessary to summon only the Magistrates and Council, not the members of the particular corporation.

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James Donaldson, who had been chosen deacon of the bakers in the town of Kinghorn in September 1788, complained to the Court of Session, in terms of the statutes 16th Geo. II. and 14th Geo. III. that he had been prevented from voting in the election of the magistrates for the ensuing year.

To this complaint the provost, bailies, and other members of the town council, were made parties, without taking any notice of the members of the corporation of bakers, and also without summoning one Thomson, who, as old deacon of the taylors, had been present when the complainer was rejected by the magistrates.

An objection on this ground was stated by the magistrates and town council to the formality of this complaint; in support of which they

Pleaded: In every judicial proceeding it is necessary that those who are immediately interested in the decision shall be brought into the field. It is true, that in prescribing the form of summons to be used in matters of burgh election the legislature has required, that “ the magistrates and counsellors elected by the majority” shall be cited, without particularly mentioning any other person. But it surely could not be meant by this, where the question was with regard to the election of a particular officer, that the party himself should not be cited; or that every one of those persons whose proceedings have been complained of, should not have regular notice of a litigation, in which, besides being subjected in expences, that may be deprived of their right of suffrage. Accordingly the practice has ever been, not only to summon the magistrates and counsellors, but also those who voted at the election at which the wrong is said to have been committed. And, where the choice of a deacon is the subject of dispute, the whole members of the particular corporation have been made parties.

Answered: The method of summoning, in causes of this sort, has been wisely adapted to the circumstances of the case. By intimation to the magistrates and other members of the town council, it is to be presumed that the matter will be sufficiently known, to put every other person who has, or thinks he has, an interest, on his guard; and this, independently of statutable forms, is all that is necessary. To require, that besides the magistrates and counsellors, who, as representing the community, have the chief, and almost the only concern, the whole constituent members of the meetings for election in all the different corporations should be called, would occasion a great and unnecessary expence; and, at the same time, would almost, in every instance, be fatal to the proceedings, from the danger of omitting some person to whom intimation should have been made. A similar idea has been followed with regard to the proceedings in the courts of freeholders, where, though every one of the freeholders may be thought to have an equal interest, it has been sufficient, to summon the person who is supposed to have been unduly put on the roll, or those by whom an objection has been made, in consequence of which a freeholder has been excluded from his right of voting. As to the practice, supposing it to have been uniform as it has proceeded from the unnecessary anxiety of the parties, it cannot have any influence; 1st August 1773, Bell contra the Magistrates of Inverkeithing.

The complaint was dismissed on other grounds, to be stated in the report which immediately follows: But

The Court were of opinion, that the form of the citation had been sufficiently regular.

Act. Dean of Faculty, Wight, A. Fergusson, Cha. Hay. Alt. Lord Advocate, Solicitor, Tait, Hope. Fol. Dic. v. 1. p. 101. Fac. Col. No 82. p. 148.