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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mathieson and Others (Magistrates of Dunfermline), Petitioners [1877] ScotLR 15_31 (3 November 1877)
URL: http://www.bailii.org/scot/cases/ScotCS/1877/15SLR0031.html
Cite as: [1877] SLR 15_31, [1877] ScotLR 15_31
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SCOTTISH_SLR_Court_of_Session
Page: 31↓
Court of Session Inner House First Division.
Facts:
Where all the magistrates of a burgh fell to retire except one, who was unable through illness to attend and act as returning officer at the succeeding election, or to preside at the first meeting of council, the Court authorised the existing provost and magistrates to retain their office until
Page: 32↓
their successors should be elected.
This was a petition by the Provost and Bailies of the burgh of Dunfermline, in which it was stated that the third of the Council, who retired according to the provisions of the Act 3 and 4 Will. IV. c. 76, included the Provost and three of the Bailies. There were four Bailies in the burgh, but the fourth was unable from illness to leave his room, and therefore could not act as returning officer, nor preside at the first meeting of Council, as by the Act 15 and 1G Vict. c. 32, sec. 6, it is required that the Provost or senior Magistrate who may continue to be a member of Council shall do. The Court therefore was craved to authorise the Provost and Magistrates who were retiring to continue to hold their office till after the first meeting of the new Council, just as they were empowered to do by the 5th section of 15 and 16 Vict. c. 32, in the event of the Provost and all the Magistrates being among the retiring Councillors.
When the petition came before the Court on Friday, November 2—the election being on Tuesday, November 6—the Court continued it till next day, that such intimation as it was possible to give might be made to the rest of the Council.
A meeting of the Council was called on Friday afternoon, and on Saturday morning there was produced to the Court an extract-minute of the said meeting on copy of the petition, with a docquet by the Councillors present at that meeting accepting service of the petition and concurring in its prayer.
The following interlocutor was pronounced:—
“The Lords having resumed consideration of the petition, with extract minute of Special Meeting of Magistrates and Town Council of Dunfermline, 2d Nov. 1877, docqueted by thirteen Town Councillors of the burgh of Dunfermline on copy of the petition, same date, and certificate of intimation by the Town Clerk, respectively Nos. 8, 9, and 10 of process; in respect the Provost and Magistrates of the said burgh all go out of office on Tuesday 6th November current, with the exception of Bailie Thomas Morrison, and that he is incapacitated by the state of his health from acting as returning officer or otherwise under the provisions of the statute 15 and 10 Vict. c. 32, sections 5 and 6—Grant the prayer of the petition, and find the petitioners entitled to their expenses, as taxed by the Auditor of Court, out of the burgh funds: And authorise a certified copy of this interlocutor to be used in place of an extract, and the petitioners to act thereon; and decern.”
Counsel for Petitioners— Johnston. Agents— Morton, Neilson, & Smart, W.S.