Alexander Tenant and William Gray, v. Alexander Johnston, and Others
Date: 23 February 1785 Case No. No 29.
Non-residence was considered to be an essential objection to the election of a person to serve in any office within burgh, unless where a contrary rule, in regard to any particular office, had been established by usage. Reversed ex parte on appeal.
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In the burgh of Anstruther Easter, the three bailies, who are the chief magistrates, present to the burgesses annually a list of nine persons, out of which number are chosen the bailies for the ensuing year; and these, in their turn, elect the other office-bearers of the burgh.
In a complaint exhibited in the Court of Session, Alexander Tenant and William Gray contended, That one of the persons put in this list, in the year 1784 being resident in England, the whole election was void and ineffectual.
For the complainers it was
Pleaded: As it is necessary that the persons elected into the office of bailie shall be resident in the burgh, this is no less essential to the nomination of such as are put in the list out of which that magistrate is to be chosen, the right of the electors being equally infringed, by presenting persons altogether unqualified, as by abridging the number of those from among whom the choice is to be made. Indeed, by multiplying that abuse, so as only to leave three of the presentees eligible, the persons already in office, who may be included in the list, might ensure to themselves for ever the government of the burgh. In this manner the election of the bailies being vacated, the nomination of the office-bearers chosen by them becomes, consequently, ineffectual.
Answered: It would not follow, because the bailies must reside within the burgh, that those persons are altogether ineligible, who are not resident at the moment of their election; nothing being farther requisite to validate their appointment, than that they should, during their office, have their abode in the town. If, therefore, the exception here urged could not have prevented the election of non-residents, it assuredly cannot have the least influence on the choice of those who were preferred to them, and to whom the objection is not applicable. In fact, however, this circumstance is not rigidly attended to, either in this or in almost any other burgh in Scotland.
The Lords considered residence as an indispensable qualification, if not departed from by inveterate usage; and they reduced the election in toto.
Act. Crosbie.Alt. Wight, J. Anstruther junior.Clerk, Menzies.
Fol. Dic. v. 3. p. 101. Fac. Col. No 203. p. 318.
*** This judgment reversed ex parte in the House of Lords, 28th April 1785.
