Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 BURGH ROYAL.
Subject_3 Non-residents, Minors, Members of the Guildry, Town-officers, and Pensioners of a Burgh, cannot vote in the election of a Deacon.

James Hutton and Others
v.
James Knox and Others

Date: 23 July 1774

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In a process of reduction and declarator, for setting aside the election of the deacons and treasurers of certain of the incorporations of the town of Brechin, the votes of several of the electors were objected to. The objections were reduced to the following heads:—1st, Non-residence; 2dly, Such as were members of the guildry; 3dly, Such as were minors; 4thly, Town servants and pensioners.

The following opinions were delivered:—

Hailes. It is inconsistent with the institution of the borough that non-residenters should vote. A burgh is held of the Crown by the tenure of watching and warding, which implies residence.

President. So it was found in the case of Mary's Chapel against Miller; but I consider that as a hard decision. When a man goes to a distance from the burgh, something may be said; but it is hard to impose this incapacity on a man for residing on the opposite side of a gutter or of a street. The objection was repelled many years ago, in a case from Aberbrothock.

Monboddo. It is clear that a man cannot be both of the guildry and vote among the trades. This would sap the foundation of the constitutions of burghs.

Auchinleck. I do not like to establish an aristocracy in burghs.

President. It is a point established, that minors cannot vote.

Hailes. Town-officers cannot vote: and so it has been thought in the town of Brechin, by the farce of displacing them before an election. All the difficulty arises from the judgment of the House of Lords concerning the vote of the Bellman of Haddington.

President. I will not pay such deference to the judgment of the House of Lords in a single case, as to overturn what I take to be consuetudinary law. This is provided by the Act of Convention at the Revolution, and I revere that authority.

President. As to pensioners, I think that the town's pensioners cannot vote. The reason of their incapacity is, their dependant state; but I do not see why the pensioner of another parish may not vote.

On the 23d July 1774, “The Lords found that non-residents, minors, members of the guildry, town-officers, and pensioners of the burgh, cannot be received to vote in the election of deacons.”

Act. G. B. Hepburn, A. Lockhart. Alt. D. Rae, A. Wight. Ordinary action, Inner-house.