(1723) Robertson 452
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Subject_Member of parliament. —
In an action to reduce the election of certain magistrates of a royal burgh, on account of the imprisonment of certain of the electors by the provost, who was a member of parliament: the provost's privilege of parliament could not be pleaded to stop the declarator against the other defenders, as not elected by a sufficient quorum:
And the provost's privilege of parliament could not stop the pursuers from insisting upon the reason of reduction, that some of the electors were unwarrantably imprisoned by the provost.
Subject_Burgh Royal. —
It was relevant to annul the election of magistrates, that the provost had unwarrantably imprisoned some of the electors, during the time of the election, with an intention to prevent their giving their votes at that election.
The town of Montrose, by the set or constitution of the burgh, was governed by a town council, consisting of 19 members, viz., a provost, three baillies, a dean of guild, a treasurer, a master of the hospital, 10 common council-men, who are merchants, and two other common council-men, who are tradesmen. This town council was elected annually about Michaelmas by the old council; seven of them being continued for the year following, and 12 new ones being chosen.
On Wednesday preceding Michaelmas day 1722, an election was held for the said burgh, at which James Scott, Esq. of Logie, a member of parliament was chosen provost, the appellants baillies, and certain other persons, councillors of the said burgh; but the respondents, who were aggrieved by the election thus made, soon after brought an action of reduction and declarator against the same before the Court of Session. The circumstances of the case as stated by the respondents were;
That the method of election was that, upon the day of election, all the magistrates and councillors should meet in the town-house, or at least a majority of the whole, being 10, and there the old council elected the new, the provost, the 3 baillies, the dean of
That at the Michaelmas election 1722, James Scott Esq. of Logie, the then provost, and the appellants, were anxious to continue themselves, and their friends in the management: but finding that the majority of the then town council, would be for bringing in a new set of burgesses, they resolved to prevent some of the councillors, who would not fall in with their measures from coming to the election; and in order thereto, the then provost, on the morning of election, ordered four of the councillors to be carried to prison, upon pretence of some personal insult or disrespect to himself: and most of the councillors, thinking the liberties and privileges of the burgh infringed by this mode of proceeding, absented themselves from this pretended meeting; but sent Mr. Murison one of their number, to protest against the illegal practices thereof:
That the appellants and their associates finding their number was but eight, reckoned Mr. Murison, (who went there only to protest against their proceedings) as the ninth; and to make up the tenth, they made one of their friends appear as proxy, for one of the absent councillors, without any warrant or order for so doing; and then chose a new town council:
That Mr. Murison protested against all these illegal proceedings, and demanded that the four councillors who was imprisoned should be liberated, before they proceeded to an election, and offered caution for their appearance to answer to any crime with which they should be charged, which was refused: and immediately after this irregular election was over, the four councillors were set at liberty; and were never afterwards prosecuted for the crimes alleged against them: and as soon as these four were liberated, eleven members of the town council, being a majority of the whole, met and proceeded to a due and regular election of magistrates and councillors for the ensuing year.
The appellants made defences, that the action being brought to overturn the election of Mr. Scott, of Logie, as provost, and the other magistrates of the town, upon an alleged act of violence committed by Mr. Scott, the respondents could not proceed in their action against Mr. Scott, because of his privilege of parliament; nor against the appellants, who were the other defenders, because they were in society together, and therefore no action could lie against them, unless Mr. Scott was made a party.
The cause being heard before the Lord Ordinary, his lord ship on the 22d of December 1722, “Sisted process against the said Mr. Scott, during his privilege of parliament; but sustained process against the appellants; and before answer allowed the respondents to prove their libel, that there was not a quorum at the election, and that there were four of the town council the prison at the time of the election.” And on the 27th of the same month his lordship “sustained process against all the defenders, and allowed a proof to be led against them, and against Mr. Scott.”
The appellants having reclaimed, a hearing was had in presence of the whole Court, and on the 8th of January 1723, their lordships “found that Logie's privilege could not be pleaded to stop the declarator against the other defenders, as not elected by a sufficient quorum.” A second reclaiming petition was presented, upon which a fresh hearing was had, and the Court on the 19th of January 1723, “found that Logie's privilege could not stop the pursuers from insisting on that reason of reduction of the other members, viz. that some of the members of the council were unwarrantably imprisoned by Mr. Scott of Logie.” And by another interlocutor of same date, they “found it relevant to annul the election of the other members, that Logie unwarrantably imprisoned some of the members of the council during the time of the election.”
Entered 8 Feb. 1722–3.
The appeal was brought from “the interlocutory orders of the Lords of Session in Scotland of the 8th and 19th of January 1723.”
Heads of the Appellants' Argument.
It seems very unreasonable to oblige the appellants to justify an act of Mr. Scott's, when at the same time there can be no proceedings against Mr. Scott himself. He may have very good reasons to allege in support of what he did, of which the appellants may be entirely ignorant; or supposing they should be acquainted with them, they may not be furnished with proper vouchers for justifying them; and therefore the appellants should not be obliged to plead to the action, till Mr. Scott can be regularly proceeded against. It is not so much as charged by the respondents, that the appellants were concerned with Mr. Scot, or accessary to the illegal act said to be committed by him; and it is at least a very new method of proceeding to compel the appellants to justify this act, at the hazard of losing their right, when not only the principal, but the only actor cannot be proceeded against.
Supposing the fact were proved against Mr. Scott, yet it seems highly unreasonable, that any act of his to which the appellants were not at all accessary, should be made use of to set aside the election of the appellants. Every man ought to suffer for his own faults; and therefore it is hardly to be conceived how Mr. Scott's act can affect the appellants. The case is the same as if Mr. Scott had not been present at the election, and the other electors had proceeded to make a choice without him, that election no doubt would have been good; how, then can the presence of Mr. Scott against whom there may be an objection upon a fact committed by him only, be made use of as a handle to set aside the act of election, which of itself can subsist without the intervention or presence of Mr. Scott?
The respondents contended that it is sufficient in order to avoid the election, to insist that some of the members of the council, and the electors were unwarrantably detained, nor was it of any moment by whom, or by whose directions they were so detained. But were this reason sufficient, it would be in the
Heads of the Respondents' Argument.
The Lords of Session allowed of Mr. Scott of Logie's privilege of Parliament as a protection to himself, without entering into any dispute, whether that privilege could protect him against any action brought against him as a member of a corporation; and the respondents conceive that he could not by such privilege protect his fellow magistrates and councillors from the just suit of the respondents; there being nothing more common, where members of parliament are jointly or severally bound in bonds with other persons, than the bringing actions against the other persons bound, though no action be commenced against the members upon account of their privilege.
Though by the written set of the town, no quorum was expressly fixed, yet custom and reason determined, that no number of the council under ten, which is a majority of the whole could proceed to do business, more especially business of such weight as the election of a new town council, for if any lesser number should be allowed, it would be impossible to determine where to stop, or why two or three met together in the council-house may not be a quorum, and have a power to elect a new town council, or determine business of the greatest consequence to the town: The appellants indeed founded upon a precedent in 1719, where there were bur eight present at the election of a new town council, and where they chose proxies for two more to make up the number ten; but no argument could be brought from this precedent, since they could not shew that it was ever practised before or since.
It appears from the very facts themselves, that the four members were imprisoned, in order to influence the election, and to prevent a majority of the town council's being against the provost and his friends, which would have happened if a free election had been allowed; for the appellants themselves acknowledge, that six or seven of the council were walking in the streets, and would not come up to the place of election; which number, with the four that were imprisoned, would have made a majority of the town council; but by this act of Mr. Scott's he procured himself to be elected as provost, and his other friends to be brought in as magistrates or councillors for the year following. And, therefore,
The appellants were all accessary to this illegal act, in so far as they openly and knowingly took advantage of it to get themselves elected as magistrates and councillors. And particularly the appellant Mr. Mill, as a magistrate, was accessary thereto, he being one of the magistrates of the town at that time. Though the council, as such, have no jurisdiction, yet Mr. Mill, as a magistrate, might have joined with Mr. Murison, who was another magistrate, then present, and they two as such might have liberated the imprisoned members upon giving good bail, which privilege ought not to be refused to any subject, who is not imprisoned for some heinous crime.
Judgment, 23 May 1723.
After hearing counsel, It is ordered and adjudged, that the interlocutory order of the 8 th of January be affirmed; and it further ordered and adjudged, that the interlocutory order of the 19 th of the same January, whereby the Lords of Session found, “that Logie's privilege could not stop the pursuers from insisting in the reason of reduction of the election of the other members, that Logie unwarrantably imprisoned some of the members of the council during the election,” be affirmed; and as to the second interlocutory order, of the same date, it is further ordered and adjudged, that it is relevant to annul the election of the other members, that Logie unwarrantably imprisoned some of the members of the council during the time of the election, “with an intention to prevent their giving their votes at that election;” and with this variation and addition the same last mentioned interlocutor is hereby affirmed.
Counsel: For Appellants,
For Respondents, Rob. Raymond. Will. Fraser.