Scottish Court of Session Decisions

Subject_1 BURGH ROYAL.

Election of Wick

1749, Jan. 12.
Case No. No. 29.

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By the charter of erection of this Burgh, the Provost and Bailies were appointed to be chosen cum avisamento et consensu Geo. Comitis de Caithness et ejus hœredum et successorum. who were also to have the half of all sums paid for admitting Burgesses;—and till that family's affairs went into disorder the Earls were always chosen Provosts, and the Bailies chosen by poll out of a leet approved by him. But after the estate came to Earl of Breadalbane, the Provost was chosen as well as the Bailies without regard to that clause, till 1716 that by act of Convention Earl of Breadalbane was put in Earl of Caithness's place, and the former custom revived, with that only alteration. The Town now pursues declarator against Ulbster as come in Breadalbane's place, to declare that he has no right to that privilege, with sundry other conclusions. In which Earl of Caithness compeared for his interest,—and as to it two questions were argued, first, Whether it was alienable by the family of Caithness? and both Kilkerran and I thought it was, not only because we had found offices, even that of King's Usher, to be alienable, but also because this privilege was not only hæredibus but successoribus, which must signify some persons that could not be heirs; and 2dly, Here was a patrimonial estate, half of the dues of entering Burgesses. Second question, If it could be alienated, there being produced for Ulbster a charter in 1694 on sundry apprisings, containing hæreditaria officio lie Provestriis cum privilegiis et libertatibus infra Burgum de Wick, and parties said they were ready to produce the apprisings? I did not think that lie Provestriis carried this right, but I thought the word privilegia did. However it carried by a great majority that it was not alienable. Next we found that the list for Provost and Bailies should be approved by the Earl of Caithness; 3tio, That Burgesses, heritors of houses in the Burgh, though not residing in it, might vote at the poll; 4to, That a person might be Provost though not residing. (The parties agreed that honorary Burgesses could not vote at the poll, and that the Bailies behoved to be inhabitants;) and 5to, We found that all the Councillors behoved to be also inhabitants in the Burgh, though no statute requires it, and it was the usage in this Burgh no more than in many others. But some of us thought that the charter required it, which I own I did not—5th January 1749, On a reclaiming bill, find first the pursuers have sufficient title.—12th January Find the privilege to the Earl of Caithness alienable, and order Ulbster to produce all his titles, and find that a majority of those elected Councillors must be inhabitants; but now altered this last, and found there was no limitation of Councillors to be inhabitants.—13th June Altered by President's easting vote, and found there must be a majority of inhabitants including Bailies or proprietors;—24th June Adhered; and 4th July found of consent that the Dean of Guild and Treasurer must be resident Burgesses.