Scottish Court of Session Decisions

Subject_1 PART I.

BURGH-ROYAL.

George Dove, Taylor in Inverkeithing,
v.
The Magistrates and Town Council of the Burgh of Inverkeithing

Date: 14 June 1777
Case No. No. 4.

Whether a person complaining in terms of the act 16. Geo. 2d. cap. 11. of a wrong committed at the election of Magistrates and Councillors of a burgh be entitled to his costs of suit under the statute, the wrong being redressed before judgment comes to be given by the Court?

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A petition and complaint was given in to the Court of Session, in the name of George Dove, stating that he had been legally elected deacon of the incorporation of taylors of the burgh of Inverkeithing, in the month of September 1776, but that the Magistrates and Town Council of that burgh had notwithstanding refused to admit him into the Council.

The ground of refusal was, that Dove had not brought sufficient evidence that James Inglis, (one of those who had voted against his election) was a minor; the only proof at first produced of this being a certificate from the Session Clerk; and that if Inglis was not proved to be a minor, Dove's election could not stand, as the casting vote was given against him at the election.

To remedy this defect of evidence, Dove produced an extract with regard to the minority of Inglis, signed by a Minister and two elders. The Council still seemed to think this insufficient, and appointed additional proof to be adduced. Dove consequently brought his complaint, but before judgment was given, the Council admitted him to take his place among them as deacon of the taylors. It came thus to be a question whether the complainer was entitled to his costs of suit, according to the act 16th Geo. II. The Court seemed to be of opinion that the Council had some reason to consider the certificate of the Session Clerk as not sufficient evidence of the minority of Inglis, and that the proof of his minority was entirely incumbent upon the complainer; therefore the Council, soon after the stronger evidence had been produced, viz. the extract signed by the minister and elders, had admitted Dove to his place of deacon. The Court were also of opinion that the statute did not apply to this particular case; and the following interlocutor, 14th June 1777, was accordingly pronounced: In respect that the complainer is now admitted deacon, and has taken his seat accordingly, Find that there is no occasion to judge on the merits of said competition, and therefore find that no expenses can be claimed under the act of Parliament, and decern.

Act. Blair. Alt. Ilay Campbell.