Robb — Answers, 14 Jan 1767 (Box 1)

January 1767.A N S W E R S F O R Robert Robb, John Brown, and William Boyter, Baillies; Wal- ter Thomson Treasurer: and Robert Alexander, E sq; George Colvill, Robert Bisset., John Thomsn, D av id Loudn, A le x- ander Boyter, W illiam Innes, Robert Peattie, William Mil ler, W illiam Alexandr, E sq; and J ames H ay, Counsel- lors of the Borough of An struther-Wes t e r, elected at M i­ chaelmas 1766; TO T H E P E T I T I O N and C O M P L AI N T of Robert H unter, W illiam Thoms on, and J ames Boyter. T HE Complaint now to be answered is of a singular na­ t u r e, and may properly be termed a Hypothetical Complaint; for, unless the Complainers shall prevail in the reduction of the election made at Michaelmas 1765, it can serve no purpose whatever. It would surely have been at least a more natural method of procedure in the Com- plainers, however sanguine their expectations may be, to have waited the issue of the former Complaint, before giving the Court the trouble of a new suit, for letting aside the election made at Michaelmas last; and the Respondents have been able to discover no similar example but one, in the case of Wick, where, during the dependence of a Complaint for setting aside the election of the magistrates of that borough, made at Micha­ elmas 1745, a new process was raised for reducing the subse- quent election made at Michaelmas 174 1 is proceeding upon leets given out by the former magistrates. This new process was however set aside, and the Defenders were assoilzied from the reduction of the election 1746, though upon what grounds, Mr. Falconer, by whom the decision is collected, has not thought proper to mention particularly. But, since the Complainers have chosen to proceed in this manner, the Respondents shall endea­ vour to answer the Complaint, upon the supposition that the e- lection made at Michaelmas 1765 shall be reduced, notwith­ standing their being fully convinced and satisfied that no such event will ever take place. In In the first place, the Respondents must beg leave to observe. that, as, at Michaelmas 1766, the magistrates and council for the former year were in possession of their offices, it was incum­ bent upon them to elect and appoint a magistracy and council for the year ensuing. In the next place, they must confess their total ignorance hi­ therto of any particular law or statute, by which it has been declared, that the voiding an election made in one year, shall have the effect to annul a subsequent election made the next year, when the decree reducing the former election is posterior, in point of tim e to the latter. The Respondents, therefore, must continue to be of opinion, until more solid principles for the contrary doctrine than are suggested in the Complaint be pointed out to them, that such decree cannot have that effect: The magistrates and council for the year 1765, being in posses- sion, they had a title, at least ex facie good, to make the elec­ tion 1766; and by that election a jus quaesitum was established to the persons elected, which, in the Respondents apprehension, cannot be defeated by any labes realis that may hereafter be found to attend the election 1765. Nor will it be sufficient for the Complainers to allege, that the election 1765 was brought about by bribery and corruption, unless they further prove, that the election 1766 was brought about by the same undue influence. A circumstance that surely will not be taken for granted from mere presumptions only. The chief argument urged by the Complainers, is, that as the election of magistrates and counsellors made on the 1 8th of September 1765, on account of its being brought a- bout and influenced by bribery and corruption, was from the beginning void and null; therefore all the actings and proceed­ ings of the persons,. thus unlawfully elected, must be in the same situation, and consequently this last pretended election must also fall. But this argument, by proving too much, will be found to prove nothing at all: For, in the first place, there is an essenti- al difference betwixt what is void and null, and what is liable to be set aside. A deed that is defective in the necessary solem- nities required by law, is void and null, and can never be the foundation of an action: But a deed that is granted by a minor, though to his lesion, is, in its own nature, a valid deed, and will remain effectual to all intents and purposes, unless it be brought under challenge within the time allowed by law for that that purpose.—In like manner, an election of the magistrates and counsellors of a borough, that is brought about by corrupt in­ fluence, is not a void election: On the contrary, it will remain a good election to all intents and purposes, unless it be set aside in the manner which the law has directed: And, i f no reduction had been brought of the election 1765, it is believed that your Lord- ships would have paid little regard to a reduction of the election 1766, in respect that the election 1765 had proceeded from corrupt influence, and was therefore void and null. Taking it then for granted, that the election 1765 was not ipso jure void and null, but only liable to challenge, the Respondents submit it to your Lordships, if the persons elected at that time had not a legal title to appoint their successors at Michaelmas 1766, at which time no reductive decree had been pronounced, or even so much as a relevancy found upon the allegiances of bribery and corruption, of which the challenge was composed. In the next place, were this doctrine of the Complainers well founded, every thing that is done by the magistrates and coun­ cil for the time, must be void and null, if their election shall be afterwards reduced; and to indeed the Complainers expressly contend. The natural consequence of this must be, that all feus granted by them, all offices conferred by them, and all decreets pronounced by them, are good for nothing; a conse- quence so inconsistent with the rules of natural justice and com­ mon sense, that the complainers themselves can hardly expect it will be approved of. Few decisions of the Court are indeed to be met with in cases of this kind; but the only one that is known to the Respondents is contradictory to the doctrine now endeavoured to be established by th e Complainers. The case here referred to is that of John Muirhead, who, having pur­ sued the magistrates of the town of Haddington for payment of an account of disbursements, laid out in defending an election, which was at the long-run set aside; the Court found the town liable, upon its being acknowledged that these magistrates,fo r whom he was employed, had attained the possession; 12th July 1749, Muirhead contra Magistrates of Haddington. This shews, that the Court was then of opinion, that every act and deed of the magistrates, in possessio n at the time was valid and effectual; and it seems naturally to follow, that the election 1766 must remain valid, as the persons by whom that was made, were at the time de factomagistrates and counsellors of the borough. The The Complainers indeed allege, that, according to the Re­ spondents doctrine, it would be in the power of persons guilty of bribery and corruption, to disappoint and elude the law, by preventing a final sentence till the time fixed for the next annual election is elapsed: But this can never happen, if the per- sons who complain of such election are ordinarily alert. The annual election of magistrates and counsellors, in all the bo­ roughs in Scotland, happens in the harvest vacation; so that any complaint to be offered against an election may be preferred upon the very first day of the winter-session; and, as such complaints are by law intitled to summary dispatch, it must surely be the fault of the Complainers themselves if they are not brought to a final conclusion before the next annual election. The case of Inver- keithing must be fresh in your Lordships memory, and will con­ firm the truth of what the Respondents are now asserting: For, in that case, notwithstanding an appeal to the House o f Lords' the attention of the parties, seconded by the inclination of the Court, to give that dispatch to which the law intitles Com­ plaints of that kind, obtained a judgment, reducing the elec­ tion the same session in which the Complaint was preferred; and if the Complainers against the Michaelmas election 17 6 5 of the borough of Anstruther-wester, had been equally diligent, it cannot be doubted, that the merits of that election might have been determined before Michaelmas last, especially when it is considered, that the proof was allowed as early as the 16th of January 1766. The Respondents will only further observe, That, from the summary manner in which the law has appointed suits of this kind to be carried on, it would seem that the Legislature had been of opinion, that if a subsequent election was made before a sentence could be obtained, reducing the former election com­ plained or, it could not be thereby effected; but, if the Com­ plainers doctrine be true, it must necessarily follow, that a Complaint once lodged, though kept in dependence for forty years, will, if at last sustained, afford a sufficient ground for re­ ducing every election that intervened during its dependence, the absurdity whereof is too obvious to require any further notice. It is therefore hoped, that, whatever be the late of the process now in dependence, with regard to the election 1 765, your Lordships will be under no difficulty of dismissing the pre- sent Complaint In respect whereof, &c. A L E X. W IGHT.