Scottish Court of Session Decisions

This was an application to the Court by the returning officer for the Wick district of burghs against the sitting member (Mr Loch, M.P.) and Mr E. B. Lockyer. It was to the following effect:—

“In terms of the 7th section of the Parliamentary Elections Act 1868, 31 and 32 Vict. c. 125, and of the 15th General Rule of Procedure in reference to election petitions in Scotland, made by your Lordships, dated 27th November 1868, the said George Dingwall Fordyce, as returning officer foresaid, gave notice in said Northern District of Burghs that the said Edmund Beatty Lockyer had presented to your Lordships, and had lodged on the 19th December 1868, in the office in Edinburgh of Harry Maxwell Inglis, Principal Clerk of Session, No. 16 New Register House, Edinburgh, the foresaid petition. He also gave notice, in terms of the 15th of said General Rules, of the agents appointed by the said Edmund Beatty Lockyer and George Loch respectively. The said notice was so published in the various burghs in terms of the Act.

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“The said George Dingwall Fordyce, as returning officer foresaid, in terms of the 17th of said General Rules of Procedure, duly published in said burghs a list of election petitions presented to the Second Division of the Court of Session, and lodged in the office of the said Harry Maxwell Inglis, the prescribed officer pursuant to section 10 of the statute and General Rules of Procedure No. 16.

Afterwards on 11th February 1869 the said George Dingwall Fordyce gave notice throughout the said burghs, in terms of the Parliamentary Elections Act 1868 and said relative General Rules of Procedure, of an application by the said Edmund Beatty Lockyer for leave to withdraw the said petition, and the deliverance of my Lord Jerviswoode thereon.

In making said publications expenses were incurred by the returning officer to the extent of £23, 1s. 11d.

Application for payment of said expenses has been duly made to the parties to the said petition, but they have declined to make payment, and deny liability for the same; and the returning officer now respectfully craves your Lordship to move the Court for a remit to the Auditor to tax the same, and after the same is taxed, or without taxation should taxation be deemed unnecessary, he respectfully craves your Lordship to move the Court to grant an order on the said Edmund Beatty Lockyer and George Loch, conjunctly and severally, to pay the said expenses to the returning officer, together with the expenses of this application, under such pains and penalties as to your Lordship shall seem proper.”

The application was made under the 41st section of the Corrupt Practices Act of 1868, which provides that all costs and charges not otherwise provided for in the Act shall be borne by “the parties to the petition,” and the contention was that under this claim both petitioner and sitting member were primarily liable, although the successful party had relief against the unsuccessful party, in the same way as in the case of the former's ordinary expenses. It was explained that the delay in making the application arose from attempts having been made to obtain the money from the Treasury, which attempts had ultimately failed. In February 1869 Mr Loch's expenses had been taxed, and decree given therefor against Mr Lockyer; but Mr Lockyer's cautioner's bond still remained in the clerk's hands.

The Court, after hearing parties in the course of the week before last, ordered intimation to Mr Lockyer's cautioner, and he having to-day appeared, pleaded that no decree could go out against him, because, inter alia, the Act provided that parties entitled to go against him should proceed by registering his bond and charging upon it. Mr Loch, on the other hand, pleaded that no liability attached to him for procedure which was connected with the bringing into Court of the petition against him, and that by “the parties to the petition,” the statute meant the parties according to their several liabilities. Mr Lockyer, while admitting that if anybody was liable he was, contended that the expenses sued were not provided for by the statute at all, and fell to be defrayed by the returning officer, with recourse against the Treasury for reimbursement.

Their Lordships unanimously held that no liability attached to Mr Loch, and that no decree could be pronounced by them against Mr Lockyer's cautioner; but they decerned against Mr Lockyer himself, leaving it to the returning officer, if so advised, to proceed against the cautioner under his bond, as to the competency of which proceeding their Lordships offered no opinion.