Black v. Campbell [1817] UKHL 5_Dow_23

UKHL
Black v. Campbell
[1817] UKHL 5_Dow_23
REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS, During the Session , 1816—17.57 Geo . III.SCOTLAND.

APPEAL FROM THE COURT OF SESSION , (2d DIV .)

No. 2

Black Appellant v. Campbell Respondent

May 7 , 9 , 1817 .own knowledge; and the rejection of these two votes governing the return. Complaint under the statute 16 Geo. 2. cap. 11. against the clerk, and judgment by the Court of Session, that he had incurred the penalties of that statute, on the ground that the officer was bound by it to reckon the votes of all those whose names appeared as members of council on the burgh records, beyond which he was not entitled to look; and that bonâ fides bonâ fides was no defence. This judgment reversed by the House of Lords for want of averment in the complaint that the complainer was duly elected delegate, the statute having given the penalties to the person so elected. And also for want of sufficient evidence of that fact; the town books, with the names inscribed, the best evidence to show that those whose votes were rejected were members of council, not being produced in proof.POWER OF RETURNING OFFICERS IN CASES OF ELECTIONS OF DELEGATES FOR BURGHS.—PLEADING.—EVIDENCE, &C.The set or constitution of Inverkeithing requiring that the members of council should be resident burgesses, the clerk, at the election of a delegate for that burgh, in 1812, refused to reckon the votes of two persons whose names had been entered in the minutes, as part of the magistrates and town council, assembled for the purpose of the election, and to whom the qualifying oaths had been administered by himself, in consequence of an objection on account of non-residence; the fact of non-residence being notorious and consistent with the clerk's

Page: 24 ↓

The Lord Chancellor observing, that it is a wholesome principle, in a case so penal as this, that distinct averment and clear proof should be required.Lord Redesdale observing, that he very much doubted whether the true construction of the act was that which the Court below had put upon it.Complaint under 16 Geo. 2. cap. 11.A petition and complaint under the statute 16 Geo. 2. cap. 11. was presented to the 2d division of the Court of Session, at the instance of General Campbell, of Monzie, with concourse of his Majesty's Advocate, for his Majesty's interest, against David Black, town-clerk of Inverkeithing, stating, that at the election, in 1812, of a delegate for Inverkeithing, for choosing a member to serve in Parliament for that district of burghs, David Black, the clerk, had refused to make out the commission to the complainer, who had been chosen by the majority of the magistrates and town council, assembled for the purpose of electing a delegate; and had given the commission to General

Page: 25 ↓

The facts of the case, as averred in the petition and complaint, and as they appeared in the minutes of election, and from the admissions in the pleadings, were these.Facts and circumstances. Election, 1812, of delegate for Inverkeithing.On the 15th Oct. 1812, the magistrates and town council of Inverkeithing, assembled for the purpose of choosing a delegate or commissioner, for the election of a member to serve in Parliament for the district of burghs, to which Inverkeithing belongs. The Appellant, the common clerk of the burgh, entered or marked in the minutes the names of the magistrates and council assembled on that occasion, and administered the oaths required to be taken by the electors of the delegate; and among those whose names were so marked, and to whom the oaths were so administered, were Captain John Montgomerie and Mr. John Gulland.Objections to votes for non-residence.In the course of the proceedings Sir John Henderson, one of the council, objected to the votes of Captain John Montgomerie and Mr. John Gulland, and of Duncan and Alexander Montgomery, for non-residence, referring likewise, with respect to the three Montgomeries, to a decision of the Court of Session, in Feb., 1807, finding that they had no right to be councillors: and he called on the clerk, not only not to receive their votes, but also not to call their names in the course of any vote which might that day take place in the council. General Campbell, who was then Provost of the burgh, objected to the votes of Sir John Henderson and three

Page: 26 ↓

The summoning officers, on being examined in the usual manner as to their having warned the members of council to attend, stated, that they had served the summons on Mr. Gulland, at his house at Bellknows, and on Captain John Montgomerie, at the distillery. It was asserted in the pleadings, and not denied, that Bellknows and the Distillery were without the burgh, that Bellknows was the usual place of residence of Mr. Gulland, and Chatham of Captain Montgomerie.Judgment of the returning officer.The clerk did not give any deliverance as to the objections by General Campbell. His judgment on the objections by Sir John Henderson, as it appeared on the minutes, was as follows, “Which protests, answer, reply, and duply, having been considered by the clerk, he finds, that no evidence of the alleged decree of the Court of Session

Page: 27 ↓

He is, however, decidedly of opinion, that the objection stated against the votes of Captain John Montgomerie, and Mr. John Gulland, founded on their non-residence within the Burgh, (which is a circumstance of notoriety, and consistent with his own private knowledge,) is a good objection, and that they are not legal councillors of this Burgh. He would therefore have no hesitain setting aside both their votes, if it was clearly competent to him to determine that matter; but not being satisfied, that it is his duty, as returning officer, to judge of the validity of the votes which may be tendered to him upon the present occasion; resolves not to call for, but to mark the votes which may be tendered under protest by Captain John Montgomerie and Mr. Gulland, reserving for consideration, when he shall decide in whose favour the commission is to be made out, the legal effects of such votes, and whether or not the same ought to be received; declaring, that notwithstanding his own conviction of the real invalidity of any votes to be tendered by Captain Montgomerie or Mr. Gulland, he shall reckon them before making out a commission in favour of a delegate, if, after due consideration and advice, he shall find, that it is not strictly competent to him, as clerk of the burgh, to decide the question of their legality or illegality, and to reject them accordingly.”

Page: 28 ↓

The names of Captain John Montgomerie and Mr. Gulland not being called, there appeared thirteen votes for General Maitland, and twelve votes for General Campbell. Captain Montgomerie and Mr. Gulland then came forward and voted for General Campbell “protesting that they ought to have been called by the clerk, and ought now to be added to the list of those who voted for General Campbell. Whereupon General Campbell protested that he was duly elected delegate of this Burgh, and required the clerk immediately to make out a legal commission in his favour, and thereupon took instruments: and Sir John Henderson protested that General Maitland was duly elected delegate by a majority of votes, and required the clerk immediately to make out a legal commission in his favour, &c.”Set or constitution of Inverkeithing.The set or constitution of the Burgh of Inverkeithing as far as it appears material to the present question is in these words:two, and chooses the treasurer: all swearing the oaths de fideli and secrecy, &c.”
“The council consists of fifteen persons at least; viz. the Provost, two Baillies, the Dean of Guild and Treasurer, and ten or more inhabitant Burgesses . They proceed in their election thus: Upon the 29th Sept., yearly, the magistrates and old council meet in the forenoon within their tolbooth; and when these of the old council who are desirous of an ease have 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 choose two out of them bailies of the ensuing year; next leets three and chooses the dean of guild; and last,

Page: 29 ↓

These were pointed out as peculiarities in the constitution of the burgh; 1st, that the number of councillors is unlimited; 2d, that there is no annual election of the whole council, though there is an annual election of magistrates, the councillors once chosen continuing for life unless they resign or become disqualified. 3d, The councillors must be burgesses having residence within the burgh.Clerk rejects the votes.The clerk intimated his intention to apply to Mr. Adam (now the Lord Chief Commissioner) for advice whether he ought to reckon the votes of Captain Montgomerie and Mr. Gulland, and requested the counsel who had attended the election on the part of General Campbell, and the agent who attended on behalf of General Maitland, to go with him to Mr. Adam. The former declined going, and then the clerk went alone; and having laid the minutes of the proceedings and circumstances of the case before Mr. Adam, he, in conformity to the advice received, rejected the votes, and made out the commission in favour of General Maitland; and thereupon the petition and complaint was presented by General Campbell.Defect of averment and proof.It is to be particularly observed that there was no averment, in the petition and complaint, that General Campbell was duly elected delegate. The books or records of the burgh were not produced to show that the names of Captain Montgomerie and Mr. Gulland were there inserted as members of council, and that General Campbell was duly elected; and there was no distinct admission of these facts on the

Page: 30 ↓

Act. 16 Geo. 2. cap. 11.The clause on which the complaint was chiefly founded was the 26th of the statute 16 Geo. 2. cap. 11. which provides, “That at every election of commissioners for choosing burgesses for any district of burghs in that part of Great Britain called Scotland, the common clerk of each borough within the said district, shall make out a commission to the person chosen by the major part of the Magistrates and Town-Council assembled for that purpose, which Magistrates and Town-Council shall take the oath of allegiance, and sign the same, with the assurance, and shall take the other oaths appointed to be taken at such election, by this or any former act, if required; and the said clerk shall affix the common seal of the burgh thereto, and sign such commission, and shall not on any pretence whatsoever , make out a commission for any person as commissioner, other than him who is chosen by the majority as aforesaid; and if any common clerk of any borough shall neglect or refuse duly to make out, and sign a commission to the commissioner elected by the majority, as aforesaid, and affix the seal of the burgh thereto, or if he shall make out and sign a commission to any other person who is not chosen by the majority , or affix the common seal of the burgh thereto, he shall for every such offence

Page: 31 ↓

And a subsequent clause declares, “That every penalty or forfeiture by this act imposed in that part of Great Britain called Scotland, shall, and may be sued for, and recovered by way of summary complaint, before the Court of Session, upon thirty days notice to the person complained of, without abiding the course of any roll; which said complaint the Court of Session is hereby authorized and required to determine; as also to declare the disabilities and incapacities, and to direct the imprisonment as herein provided.”May 22, 1813. Interlocutor first appealed from.Jan. 15, 1814. Interlocutor second appealed from.The judgment of the Court of Session was as follows:

to the auditor to tax the same and report.”

“The Lords having advised this petition, with the answers, replies, and duplies, and writs produced and referred to, sustain the complaint: Find, that the Respondent, David Black, has forfeited the sum of 500 l . sterling, and decern against him for payment thereof to the complainer; order the said David Black to be imprisoned for the space of six calendar months, and declare him for ever disabled to hold or enjoy the office of common-clerk of the burgh of Inverkeithing, as effectually as if he was naturally dead: find him liable in the expences of this complaint; allow an account thereof to be given in, and remit

Page: 32 ↓

And to this judgment their Lordships unanimously adhered, on advising petitions with answers. From this judgment the clerk appealed.The Court was unwilling to carry the imprisonment into effect until the appeal should be determined, lest the judgment should be reversed; and the complainer agreed not to call for the imprisonment in the mean time.Elchies, Rep. No. 22. v. Burgh Royal.——v. Montgomerie , (case of Inverkeithing,) 1807 Vid. Wight, p. 338.—case of Elgin, 1771.— Young v. Johnston , 1766.For the Appellant it was contended that in cases of burgh elections for delegates the statute afforded no fixed rule for the guidance of the officer; that there was no roll in any burgh in Scotland to which the officer might refer, as there was in cases of elections of members for counties; and that from the peculiarity of the set of Inverkeithing, where there was no annual election of the whole council, it was impossible there could be such a roll; that the clerk was therefore under the necessity of exercising his judgment, and of deciding, attending to the constitution of the burgh, whether the persons objected to were legally members of the council; that by the constitution of the burgh residence was an essential qualification for a councillor; and that a person, though regularly admitted, and though the councillors were for life, by becoming non-resident ceased, ipso facto , to be a councillor; that in a case in 1745 reported by Lord Elchies, the Court expressly found “that by the set of this burgh councillors behoved to be residing burgesses;” and it had always been understood to be the law that the mere circumstance of non-residence operated as a disqualification. Objections on that ground had

Page: 33 ↓

Footnote

* Kames, Sel. Dec. v. Citation .

Page: 34 ↓

Bell v. Magistrates of Inverkeithing , 1777.2 Geo. 2. cap. 24. sect. 3.7 Geo. 2. cap. 16. sect. 8.16 Geo. 2. cap. 11. sect. 35.Vid. Sta. Tri. Oct. Ed. vol. 14, p. 789.For the Respondent it was argued that the act 16 Geo. 2. cap. 11. applied to all the burghs in Scotland; that there was a particular provision as to the county of Sutherland, but none as to the burgh of Inverkeithing, and that those who prepared the act must have been well acquainted with the constitution of Inverkeithing. If the act did not apply, the rights and privileges of the councillors of this burgh were at the mercy of the clerk. The notion

Page: 35 ↓

Page: 36 ↓

Page: 37 ↓

Page: 38 ↓

Page: 39 ↓

Page: 40 ↓

Page: 41 ↓

In the reply, the point of want of sufficient averment and proof, first suggested by the Lord Chancellor, was insisted upon. In a case so perilous as the present, the defender was perfectly justified in allowing the complainer to go on proving as he chose, without stating any objection while the defect might be rectified; and then, if the judgment should be against him, taking advantage of the defect upon appeal to a higher tribunal.Counsel: Sir Samuel Romilly and Mr. Murray for the Appellant; Mr. Warren and Mr. Erskine for the Respondent.Judgment. May 16, 1816.Petition and complaint.Lord Eldon (C.) This case arose out of the conduct of Mr. Black, who your Lordships will recollect was town clerk of the burgh of Inverkeithing, and the petition and complaint which I have now before me states, “That by an act passed in the 16th year of his late Majesty entitled “An act to explain and amend the laws touching the elections of members to serve for the Commons in Parliament for that part of Great Britain called Scotland, and to restrain the partiality and regulate the conduct of returning officers on such elections,” it is declared by the 22d section that

Page: 42 ↓

Elections for counties.The petition and complaint then proceeds to state the 26th section of the act. But first I would call your Lordships' attention to the previous provisions which regulate the elections for counties: and there undoubtedly the legislature has prescribed, to the person who is to collect the votes, a clear and intelligible rule of conduct, from which if he deviates, it is his own fault; since the rule is so clear and plain that he cannot mistake it: for it is enacted, “that at every election of a commissioner to serve in parliament—” (reads sect. 12 and sect. 13, except the last part relating to equality of votes). So that there being a roll of persons who are to be taken as electors, if their names are upon that roll, the plain rule, by which he is to regulate his conduct, is to allow the vote of every man who is upon the roll, without taking upon him to decide whether the name is properly inserted or not; and, on the other hand, to refuse the vote of every person whose name is not upon the roll.

Page: 43 ↓

Your Lordships will observe, that by the 22d sect. of the act, which I have before read, it appears to be taken for granted, that there is in every burgh in Scotland an annual election of all the magistrates and councillors, which, as I find from these proceedings, is said not to be the case with Inverkeithing.Sect. 26.Then by the 26th section, it is enacted, “that at every election of commissioners, for choosing burgesses for any district of boroughs in that part of Great Britain called Scotland, the common clerk of each borough within the said district, shall make out a commission to the person chosen commissioner by the major part of the magistrates and town council assembled for that purpose; which magistrates and town council shall take the oath of allegiance, and sign the same, with the assurance, and shall take all the other oath appointed to be taken at such election, by this or any former act if required: and the said clerk shall fix the common seal of the borough thereto, and sign such commission, and shall not on any pretence whatsoever make out a commission for any person as commissioner, other than him who is chosen by the majority as aforesaid: and then comes this very strong and severe clause, which I am about to read to your Lordships:borough thereto , he shall for every such offence forfeit the sum of 500 l . sterling: ”
“ and if any common clerk of any borough shall neglect or refuse duly to make out and sign a commission to the commissioner elected by the majority as aforesaid; and affix the seal of the borough thereto , or if he shall make out and sign a commission to any other person , who is not chosen by the majority , or affix the seal of the

Page: 44 ↓

but that forfeiture is, in the express language of this clause, “ to the person elected commissioner for the said borough as aforesaid, to be recovered by him or his executors in the manner hereinafter directed , and shall also suffer imprisonment for the space of six calendar months , and be for ever after disabled to hold or enjoy the said office of common clerk of the said borough , as effectually as if he was naturally dead .”The rule here given to the clerk is, that he is to grant a commission to the person who has the majority of the magistrates and town council assembled, and that he is to withhold the commission from him who has not that majority; and he is to do, and forbear to do, these respective acts at the hazard, not only of forfeiting 500 l . to the person elected commissioner, but also of suffering six months imprisonment, and that sentence of degradation and infamy which disables him to hold or enjoy the office of common clerk of the burgh as effectually as if he were naturally dead.7 Geo. 2. cap. 16. sect. 8.16 Geo. 2. cap. 11. sect. 35.2 Geo. 2. cap. 24. sect. 3.Notwithstanding all that one has read in these papers, and heard at the bar, respecting the difference between the language of the above mentioned clause, and that of the penal clause in 7 Geo. 2. and the difference between the words of the oath to be taken by the returning officer as prescribed in 16 Geo. 2. and the words of the oath to be taken by him as prescribed in 2 Geo. 2.—I say, notwithstanding all we have heard as to the language of former acts of parliament, one of which says, that if the returning officer “shall wilfully annex to

Page: 45 ↓

Page: 46 ↓

Petition and complaint.Petition.Allegations.I now proceed to state this petition and complaint, which I protest I cannot read without pain. No court in this part of the island, I am sure, would permit such matter as I am now about to read to remain on its records; and I say so the more readily, as your Lordships have heard it stated at the bar, that it was a surprise upon one of the judges who had signed it. If this act shuts out altogether the question of bonâ fides bonâ fides (and whether it does I do not mean now either to assert or deny), and renders it imperative on the clerk, whatever his own judgment may be as to the qualification, to return according to the majority of those who have the character of magistrates or councillors, whether they ought to have it or not: if such be the meaning of the act, it would be enough in this petition and complaint, charging the clerk with having incurred a penalty of 500 l . charging him with an offence for which he was liable to be imprisoned for six months, with a crime which rendered him liable to infamy and incapacitation, and to a prosecution for perjury; temperately and soberly to have stated that such persons were convened for the purpose of choosing a delegate, that he did not return according to the majority, and that the consequences of

Page: 47 ↓

“These severe but necessary penalties, thus enacted by the legislature against the partiality, fraud, and malversation, of the common clerks of burghs in matters of election, have hitherto in general been found sufficient to achieve the objects for which they were intended; and it was to have been expected that the example which was recently made by your Lordships, &c.,”
then referring to what had happened to the town clerk of another burgh, whose name I will not mention, because I hold it to be one of the most sacred duties of a judge, when a person has undergone the punishment of the law, and the law has done with him, never to mention that man's name if that will do him any farther prejudice. “But in the late election for Inverkeithing, a striking example has been afforded of a public officer, who, disregarding alike the provisions of the statute, and the solemn warning given by your Lordships, and who, totally unrestrained by the obligation of his oath, the fear of disgrace, and of condign punishment, has, after mature consideration, and with his eyes open, incurred the whole penalties of the law, and subjected

Page: 48 ↓

Page: 49 ↓

Page: 50 ↓

Then it has been said that the clerk administered the oaths to these persons, and that therefore he must be guilty of this offence.The meeting being thus constituted, Sir John Henderson entered an objection to the votes of General Campbell, Duncan Montgomery, Alexander Montgomery, and Mr. Gulland, and called upon the clerk, not only not to receive the votes of these four persons, but also not to call their names in the course of any vote that might that day take place in the council. The answer to this is stated in the

Page: 51 ↓

Petition.

The petition and complaint then proceeds:—

either repel or pass them over altogether.”

“From what transpired during this discussion, the complainer has already mentioned, that he saw very well that David Black was prepared to go all lengths, and that he had determined to act as if he had been appointed by law, not for the purpose merely of receiving the votes of the magistrates and town council assembled, but to judge of the validity of the votes of which that assembly was composed, and under that usurped character to give effect to the objections which had been stated to the votes of four of the individuals in the complainer's interest. In this situation he thought it adviseable, in order that the corrupt determination of this individual to promote the views of his political partizans might be more glaringly exposed, to state similar objections to a number of individuals who were much more obnoxious thereto than those against whom Sir John Henderson entered a protest, satisfied, that if his suspicions were well founded, David Black would

Page: 52 ↓

It was on this conduct of the complainer that it was contended that he himself, by proposing objections similar to those proposed in behalf of General Maitland, had done that which had a tendency to mislead the clerk, of whose conduct he complained, and that he was barred personali exceptione .The judges however got over this. According to the notes which I have before me, one of them said, “At first I was stumbled by it, but I think General Campbell just said, “Since you are to exercise such a power, do it fairly.”” Another says, “As to the personal objection to General Campbell, I should think if his motion had misled Black, or contributed so to do, it would have barred the complaint. But I think that is not in the nature of things, and that plainly he was not misled.” Another said that, “Had General Campbell been the first to come forward, and lead Black into error, the objection would have barred his complaint. But it was the other party who led, and then General Campbell was right to make his objection.” And the Lord Justice Clerk says, “General Campbell only assisted in misleading.” But with respect to this point of personal exception, if the proceeding had been by one of the parties against the other, it might be a material question who was the first to object, and who led the other into error. But it must be recollected that this is a proceeding by one of the parties against the clerk, and what signifies it to him which of them began to mislead, if the other contributed to do it.

Page: 53 ↓

It is immaterial whether the clerk was the political friend or enemy of either the one or the other of the parties, or had no political partialities at all. We have nothing whatever to do with that.It apppears that Mr. Black, for his own satisfaction and direction, took the opinion of a gentleman of the name of Adam, whom we have all long known, and who had certainly great practice in the law of Scotland at this bar. Some of the judges very truly and properly stated that Mr. Adam was a good English lawyer; and if Mr. Adam was not then a good Scotch lawyer also, I hope the judges are by this time convinced that he has since improved in Scotch law; and I trust that this difficulty will not arise again. But Mr. Black having thought proper to consult this gentleman, who, besides his extensive practice in Scotch law at this bar, had great experience in election cases; Mr. Adam gave him a reasoned opinion, which as Mr. Black says, led him to make the return which he did make;

Page: 54 ↓

Interlocutor 22 (signed 25) May, 1813.The judgment is, “That the Respondent, David Black, has forfeited the sum of 500 l . sterling; and decern against him for payment thereof to the complainer. Order the said David Black to be imprisoned for the space of six calendar months, and declare him for ever disabled to hold or enjoy the office of common clerk of the burgh of Inverkeithing, as effectually as if he was naturally dead.”An objection was made by one of your Lordships, that as the imprisonment, which was part of the judgment, was put off sine die , the judgment could not be sustained. The answer was, that, by the practice in Scotland, application might again be made to apply the judgment, and that then the court fixed the time and place of imprisonment. This is altogether irreconcileable to our notions of law; but, supposing that to be consistent with the law of Scotland, there is another difficulty, which, though I do not mention it as one on which your Lordships are to act, is a difficulty which I cannot at this moment answer; that is, that though the principle may apply to a case where the judgment is for imprisonment only, I doubt whether it

Page: 55 ↓

But it is a wholesome principle in a case so penal as this, that we (always recollecting that we are sitting here at present as the Court of Session) should require distinct averment, and clear proof, to the utmost extent to which they may by the law of Scotland be required. Now it ought, I think, to have been distinctly alleged and clearly proved, that the complainer was duly elected commissioner; and that could be made out only by evidence or admission of the other party, that the fourteen persons in his (the complainer's) interest were of the body of the magistrates and town council; and that again, unless admitted by the other party, could be made out only by the production of the roll, made up at the last election in those Burghs where there is an annual election, or the records of the burgh where there is no annual election, if this burgh cannot be considered as out of the operation of the statute.Having taken every possible pains to understand this case by reading these papers, and attending to the able arguments at the bar, and having particularly asked the gentlemen who argued the case for the Respondent to point out where this distinct averment and clear proof appeared, I have not been able to find them: and I am as much bound to act according to my own judgment, as Mr. Black was bound to have exercised no judgment of his own, supposing that to be the true construction of the

Page: 56 ↓

Suppose an officer, who had to perform the duty at a county election, had refused to admit the vote of one whose name was upon the roll; if he, by that refusal, became liable to the penalties of this statute—and one cannot well see why, in that case, he should not—can a court of justice find him liable without averment that the name of the person whose vote was so refused was on the roll, and without the production of the roll to show that his name was actually there?Then, whether these votes were or were not improperly rejected, and without going into that; for want of sufficient allegation, and particularly for want of sufficient proof that the complainer was duly elected

Page: 57 ↓

Lord Redesdale .I have but a few words to add to the observations which have fallen from the noble Lord, in which I perfectly concur. The legislature meant that the person who should be duly elected commissioner might bring the action; and that the person guilty of the described offence should be liable in certain penalties. The consequence is, that this being a criminal proceeding, the acts must be distinctly alleged and clearly proved, which are necessary to entitle the party to bring the action, and to entitle the court to inflict the penalty.It does not appear to me that the legislature, though it gave permission to proceed in this summary way, at all intended to dispense with as much precision as would be required in a more solemn and protracted mode of proceeding. But, in looking at the proceedings in this case, there appears no distinct allegation, nor any thing resembling distinct allegation, that the complainer was duly elected commissioner, and, if it is not alleged, it is not in issue.Then supposing it to be alleged, is it proved? I have found no evidence to prove it as it ought to be proved; for it is clear that it could be legally proved only by the production of the town council books, and it is admitted that they were not produced;

Page: 58 ↓

The same proof is necessary to show, that the persons who voted, or offered to vote for the complainer, formed the majority of the body of the magistrates and town council, of which there is no proof. I think, therefore, that these proceedings loosely begun were as loosely carried on; that what ought to have been alleged was not alleged; and that what ought to have been proved was not proved; and that the Court therefore could not properly give judgment according to the act of parliament.Doubts whether, with respect to clerks of burghs, the true construction of the act is that which the Court below put upon it.But though there had been distinct allegation and clear proof that the complainer had been duly elected commissioner, I very much doubt whether the true construction of the act is that which the Court below has put upon it: for the statute has not drawn the same line for the conduct of persons in Black's situation, as it has done for the conduct of returning officers in county elections. In county elections a clear line is drawn; and the officer, by adhering to the prescribed rule, acts without peril. But here the officer is to seal the commission to the person elected by the majority of the magistrates and town council: but then the statute has drawn no line by which the officer is to determine who are the majority of the magistrates and town council; and therefore it appears to me that the strictness of the statute does not apply to such cases as this.

Page: 59 ↓

Sect. 39.Then when it is considered that, with respect to county elections, a clear line is drawn by the statute for the conduct of the returning officer, and that with respect to burgh elections no such line is drawn, the interpretation, which the Court below has put upon this statute, is one which your Lordships will be but little inclined to adopt, if it can possibly be avoided. It seems to have been the intention of the legislature, that the acts, which would

Page: 60 ↓

But whether that is so or not, it appears to me, that there is a failure, both of allegation and proof, that the complainer was duly elected commissioner; that what ought to have been averred is not averred; and that if it had been averred, it is not proved; and on that ground, I think, the judgment cannot be sustained.Judgment of the Court below reversed .