Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.
Subject_2 COMPLAINT FORM STIRLINGSHIRE.

Farquharson
v.
Duff

Date: 17 November 1757

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Farquharson voted in the election of a collector for the county of Aberdeen without having the qualification required by law. A complaint was brought against him for recovery of the penalty of L.20, upon the statute, at the instance of Mr Duff of Hatton.

The defence was,—That this was a popular action, competent to any heritor within the county, and that there was a suit already depending against him, at the instance of Burnett of Kirkhill, before the county court, for recovery of this penalty.

To which it was answered,—That this was a sham prosecution, carried on at the instance of one of the same party, and who was connected with the candidate for whom he voted, merely to screen him from justice; and accordingly Kirkhill did, immediately after the election, lodge his complaint in the sheriff-court, but, so far from showing any disposition to carry it on, had consented to an adjournment to a —— day.

Replied,—That, as this penalty is founded upon the statute only, it must be governed by the statute; and there is nothing in the statute that hinders Kirkhill, if he had been the father of Farquharson, to prosecute him for the penalty: and, if so, he has a right, by being the first prosecutor, which the Court cannot deprive him of upon pretences of collusion, which are not proof; for the delay is hitherto not so long as that any collusion can be inferred from it, especially as it may have been occasioned by an apprehension of interfering with the Court of Session.

This reply the Lords sustained; dissent. tantum Kaimes et Auchinleck.