In a reduction of the Michaelmas election of magistrates and councillors, there is no necessity to call parties, tho' councillors, who are not interested one way or other in the contested election.
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In the burgh of Inverkeithing, the election of magistrates and councillors at Michaelmas 1760 was controverted. Admiral Holburn and his party, having the majority of votes, got into possession. But Captain Haldane and his party judging the majority of legal voters to be with them, brought a complaint before the Court of Session, accusing Admiral Holburn both of using force and also bribes; and, therefore, concluding the election of the defenders to be void, and that the election should be declared in favour of the plaintiffs. The defenders insisted upon a no process, as all parties having interest were not called. And to verify the objection, they condescended upon Captain Cunningham, who was not cited as a defender, though one of the councillors of the burgh. It was urged, That in all questions touching the rights of any burgh or community, or respecting their acts and deeds, the burgh or community must be in Court before the action can proceed; and that the regular way of bringing a burgh into Court, is by calling its legal representatives who are the magistrates and councillors.
It was answered, 1mo, That though, by the singular constitution of this burgh, a councillor once chosen continues for life without necessity of re-election, yet nothing bars a councillor to throw up his office, and that this may be done rebus et factis, as well as by declaration of will. But ita est that Captain Cunningham some time ago abandoned the town of Inverkeithing, and is now in the service of the States of Holland, as an officer in their army. 2do, Where the incorporation of a burgh is made a party in any cause, it was yielded, that its whole representatives must be called. But the reduction of an election of magistrates or councillors by their competitors pretending to be the legal majority, is not a process in which the corporation must be considered as a party. The corporation has no interest in the one set more than in the other. The question turns entirely upon the rights of the competitors; and therefore, it is sufficient to call those magistrates or councillors whose election is objected to, among which number Captain Cunningham is not, therefore there is no necessity to call him.
‘The Lords repelled the objection.’ See No. 25. p. 1882.
