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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Philp v Swayne. [1838] CS 16_427 (3 February 1838) URL: http://www.bailii.org/scot/cases/ScotCS/1838/016SS0427.html Cite as: [1838] CS 16_427 |
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Page: 427↓
Subject_Process—Judicial Reference—Remit—Burgh.—
Where objections were stated against a petition for continuing certain parties as managers of a disfranchised burgh, and the Lord Ordinary of consent, before answer, remitted the case to two counsel, to enquire into and report their opinion as to the grounds of objection set forth in the record, but without reporting the evidence:—Held that this was substantially a judicial reference, and that the report by the counsel was conclusive of the cause.
The burgh of Dysart being disfranchised in 1831, Thomas Philp, Alexander Jarvis, and the late George Beveridge, were appointed managers, ad interim, until the corporate rights and privileges of the burgh should be restored. When the Burgh Reform Act, 3 and 4 Wil. IV. c. 76, came into operation, it was found impracticable to form a magistracy and council in terms of its provisions, and repeated applications were subsequently presented to the Court for renewals of the powers of the interim managers. One of these applications was opposed by David Swayne and others, burgesses of Dysart, who alleged that Messrs Philp and Jarvis, a majority of the managers and petitioners, were mal-admi-nistering the burgh affairs, and were unfit persons to hold the office of manager.
A record was made up, after which the Lord Ordinary, “of consent, before answer, remitted the case to G. and D. (two counsel), to enquire into and report their opinion as to the grounds of objection set forth in the record, against the appointment of Thomas Philp and Alexander Jarvis, but without reporting the evidence, and this quam primum.”
The counsel reported, that, after hearing parties, and considering the evidence on both sides, they were “of opinion that the grounds of objection set forth in the record against the appointment of Mr Thomas Philp and Mr Alexander Jarvis are not well founded.”
The Lord Ordinary made avizandum with the cause and this report to the Court.
Dean of Faculty, for Petitioners.—It was done of consent, and was in substance a judicial reference, though not perhaps in the most regular form.
The Court accordingly repelled the objections, and found the respondents liable in expenses, excepting the expense of presenting and intimating the petition which was necessary for obtaining a renewal of the powers of the managers of the burgh, and was not occasioned by the respondents.
Solicitors: R. Mackenzie, W. S— W. Hunt, W.S.—Agents.
