Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 BURGH ELECTIONS.

Andrew Clark and Other Members of the Council of Linlithgow
v.
Gillies, &C

1775. April.

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Linlithgow

At the election of Magistrates and Councillors for the burgh of Linlithgow, at Michaelmas 1775, three persons were elected councillors, non-residenters in the burgh. A complaint being given in; pleaded, in defence, 1mo, That, neither by the set of this burgh nor by the law of the land, is residence a necessary qualification in the common councillors of a burgh. See case of Forres, 7th January 1757. 2do, Various instances were condescended on, where, in this burgh, non-residenters had been elected councillors without opposition; and, 3tio, The complainers, having themselves concurred in the election of these gentlemen at Michaelmas 1774, could not now complain, and were barred personali objectione; for the election had been unanimous. In this cause, therefore, it became the subject of debate whether actual residence was not an implied essential qualification in a councillor. For, to the second defence, the fact was denied, at least the instances were so few as not to authorise such a deviation from the legal constitution of the burgh. And, as to the third defence, one of the complainers was absent: so at no rate could the personal objection apply to him.

As to the point of non-residence of councillors. If it is to be considered how far it is requisite by the common law of Scotland, the set of the burgh is to be laid out of the question. It has been alleged that the three cases of Innerkeithing, Edinburgh, and Brechin, turned upon the set.

24th January 1775, the Lords pronounced this interlocutor:—“Dismiss the complaint, assoilyie the defenders, and decern; find the complainers liable in full costs of suit,” &c.

It had weight in obtaining this judgment, that the Lords thought the instances condescended on were sufficient at least to constitute the respondents in bona fide to continue the same practice, until such time as it should be found, in a declaratory action, that residence was a necessary qualification of the councillors of a borough. But they refused to insert such reservation in the interlocutor, or to make it a special interlocutor; but kept it in general.

April 1775, on an appeal, the decree was affirmed.

North-Berwick.

On this last point the Lords had given the same opinion in the case of North Berwick.

The papers in the Linlithgow case were well drawn—and explain 1st, The general constitution of our royal burghs. 2dly, The power of the convention to alter or amend their sets. 3dly, The meaning of a set of a burgh,—of the word alderman,—and several other particulars.