United Kingdom House of Lords Decisions

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Cite as: [1821] UKHL 1_Shaw_13

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SCOTTISH_HoL_JURY_COURT

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(1821) 1 Shaw 13

CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.

1 st Division.

No. 4.

Robert Angus and Others, Appellants.—Romilly—Moncreiff

v.

Duncan Montgomerie, D. Wishart, Captain John Montgomerie, and J. Gulland, Respondents.—Warren—Grant

Mar. 2. 1821.

Subject_Burgh Royal — Stat. 16. Geo. II. c. 11. —

It having been held in the Court of Session, that where councillors of a burgh were elected for life, and had been long on the roll, and no new election was usual, and where no objection had been made to their continuing on the roll, the House of Lords, in the circumstances of the case, affirmed the judgment as to the respondents before the House.

Robert Angus and others, councillors of the burgh of Inverkeithing, presented a petition and complaint, under the 16th Geo. II. c. 11. against Montgomerie and others, stating that by the set of the burgh it was declared that “the council consists of fifteen persons at least, viz. the Provost, two Bailies, Dean of Guild, and Treasurer, and ten or more inhabitant Burgesses:” That the mode of election was ordered to be thus:

“Upon the 29th of September yearly, the Magistrates and old council meet in the forenoon within their tolbooth; and when those of the old council, who are desirous of an ease, have
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demitted their offices, they choose as many new councillors in their room to keep up the number; and first they elect the Provost, then leets five of the council, and chooses two out of them Bailies for the ensuing year; next leets three, and chooses the Dean of Guild; and last two, and chooses the Treasurer; all swearing the oaths de fideli and secresie, and taking and signing the oaths, &c. for the time ordered to be taken, and the burgh letter anent elects read immediately thereafter:”

That, at the Michaelmas election of 1812, a general protest was taken against illegal votes; that Montgomerie and several others, including the respondents, were not “inhabitant burgesses;” and that, notwithstanding, one of them had been elected bailie, and the others had been continued on the roll as councillors. They therefore prayed that they should be struck off the roll, and declared disqualified. To this Montgomerie &c. answered, that, by the practice of the burgh, the councillors were elected for life; that the allegations were not relevant to disqualify them; and it was averred that they were inhabitant burgesses. On this latter averment the parties being at issue, a proof was allowed and taken, on advising which, the Court, on the 2d of January 1816, found, “That the said complaint is competent against such of the respondents as were continued on the roll of councillors of the burgh of Inverkeithing, at Michealmas 1812, in so far as they or any of them were by law disqualified from being continued: That by the set and constitution of the said burgh, the councillors thereof must be inhabitant burgesses, and therefore sustain the objections of non-inhabitantcy made by the complainers against the following persons on the said roll at Michaelmas 1812, viz. John Muckersy, John Gulland, David Wishart, William Fulton, and Captain John Montgomerie: That the said pursuers, and each of them, were disqualified from being so continued, or from acting as councillors of the said burgh, and grant warrant to and ordain the clerk of the said burgh to expunge their names from the said roll, and decern accordingly: Repel the whole objections to the continuance of Duncan Montgomerie and Alexander Montgomerie on the said roll at Michaelmas 1812, and also repel the whole objections to the election of Alexander Montgomerie as a bailie of the said burgh at Michaelmas 1812, and assoilzie them and each of them from the conclusions of the said complaint, and decern, and find none of the parties on either side entitled to expenses of process.”

Both parties reclaimed, and Montgomerie and the other respondents, against whom judgment had been pronounced, now

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objected, that as they had been previously elected councillors for Mar. 2. 1812. life,—that as no new election was necessary, except where some of the councillors had ‘demined,’—and as no special objection had been made, nor any vote taken as to their continuing on the roll, no wrong had been done at the election by the Magistrates; and it was, therefore, not competent to deprive them of this right in a summary form, or to complain under the 16th Geo. II. c. 11. To this it was answered, 1. That the objection was too late, after issue had been joined and proof taken on the merits; and, 2. That a wrong had been done in continuing persons on the roll as councillors, who could not lawfully hold the office; and that it was not necessary to state special objections, because, as it is undoubted that a person not present at an election may competently complain of the proceedings at it, so the statement of any objection cannot be necessary to found the competency of such a complaint. The Court refused the petition of Angus and others; and, on advising that for Montgomerie and others, they on the 21st of May 1816, and 18th January 1817, “Alter the interlocutor reclaimed against, and find the complaint incompetent, in so far as the same concludes against Captain John Montgomerie, David Wishart, and John Gulland, in respect there was no special objection stated against them at the Michaelmas election 1812, no vote put upon such special objection, and consequently no wrong done by the Magistrates at that election: Therefore dismiss the said complaint, and assoilzie the said John Montgomerie, David Wishart, and John Gulland from the conclusions of the said complaint, and decern;” and found them entitled to expenses in relation to this point. ^*

Against these judgments, both on the point of competency and on the merits, so far as the qualification of the parties mentioned in the interlocutor of the 2d of January was sustained, Angus and others appealed; and appearance being made by Duncan Montgomerie, who had been found qualified, and by David Wishart, Captain John Montgomery, and John Gulland, who had been held disqualified, but who were successful on the objection to the competency, the House of Lords found, “That, in the circumstances of this case, an application by summary complaint to the Court of Session in Scotland could not be sustained with respect to the respondents now before this House. It is therefore ordered and adjudged, that the appeal be dismissed, and the

_________________ Footnote _________________

* 1 See Fac. Coll. Vol. 1815–1819, No. 87. From the report of the opinion of the Judges there given, they were unanimous in sustaining the objection to the competency

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interlocutors complained of affirmed, so far as they relate to the respondents now before this House.”

Appellants' Authorities.—(Competency,) Wight, 340. 341; Kilk. 107. Andrew, Jan. 24. 1775, (1883); Marshall, Dec. 4. 1782, (1887); Tenant, Feb. 23. 1785, (1888); Harrowar, Dec. 5. 1812, (not rep.); Dempster, Mar. 3. 1791, (8868.)
Respondent's Authorities.—(Competency,) Andrew, Feb. 17. 1749, (1842); Dunbar, Jan. 7. 1757, (1855.)

Solicitors: J. Campbell,— A. Grant,—Solicitors.

( Ap. Ca. No. 8.)

1821