In a complaint against the election of the Magistrates of a royal burgh, all the Magistrates and Councillors must be parties either as complainers or respondents.
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A petition and complaint against the Michaelmas election of the Magistrates of Rutherglen, was presented in name of John Gray of Scotstown, and certain other persons councillors or burgesses of the burgh, stating, that they had been duly elected Magistrates by a majority of the electors. The petition was served upon John Spens of Stonelaw, and other Councillors who had been returned, and answers were given in by them to the different objections of the complainers.
Before replies were lodged, a minute was presented by the respondents, stating, That a mistake had been committed by the petitioners in the mode of bringing forward the petition, which was fatal to the complaint. One of the councillors, John Watson, weaver, was not made a party to the action, either as complainer or respondent; and a person of the name of John Wilson, weaver, designed “councillor of the burgh,” appeared as one of the complainers, though there is no person of this name councillor in the burgh. In cases of complaints against burgh-elections, it is indispensable that all the Magistrates and councillors be made parties to the suit, and an omission to call any one of them is fatal; Wight on Elections, B. 4. C. 1. p. 338.; Gillies against Waugh, February 18, 1755, No. 22. p. 1875. Young against Johnston, January 1766, No. 238. p. 8861. Wight, p. 339. Without entering, therefore, into the merits of the objection, the omission to sist John Watson as a complainer is sufficient to dismiss the action; and as the statutory period is elapsed, it is incompetent to prefer a new complaint.
It was answered, 1st, Objections of this nature ought to be proponed in limine. By stating peremptory defences, however, the respondents must be held to have abandoned all dilatory defences, and to have passed from the objection; Erskine, B. 4. Tit. 1. § 66. 2dly, The objection merely amounts to an error in spelling the name of one of the complainers, which cannot have the effect of annulling the complaint. There is a great difference between an error in the name of a pursuer and of a defender. A defender, if cited by a wrong name, is not bound to appear, not being obliged to know that he is the person meant to be summoned. But the misnomer of one of a number of pursuers can nowise affect the interest of defenders. In this case, the complainer, whose name has been inaccurately stated, signed the protest against the election and the mandate to insist in the complaint, and acknowledges himself to be the person really meant. Even, therefore, upon the supposition of a misnomer being equivalent to a total omission of the name of a pursuer, the defect is remedied by his sisting himself a party; and as nothing is more easy in common cases, than for a pursuer to amend his libel, all that is necessary in this case, to remove every shadow of objection, is for the complainer to sist himself in his own name as a party to the complaint.
It was conceived by one of the Judges, that the statute did not require the execution of the complaint to take place within two months; that it was enough if the complaint be, within that time, presented to the Court; and that although there was a misnomer in the complaint, it was removed by the party afterward sisting himself. But the majority of the Court held the objection to be sufficient, and that a complaint is not understood to be brought within the statutory period, if it be ex facie imperfect, which in this case it was, on account of the omission of the name of one of the councillors of the burgh. They, therefore, without entering into the merits of the case, dismissed the complaint, by sustaining this preliminary objection.
For Complainers, Clerk, W. Clerk.Agent, A. Millar, W. S.Alt. Campbell, W. Erskine.Agent, Ja. Davidson, W. S.
Fac. Coll. No. 148. p. 331.
