AI-transcribed

Election. In the law of England one is said to have an election when it is optional to him to make his choice of two or more alternatives; but having made his election, he is bound by it, and cannot act inconsistently with his own determination. So also, in the law of Scotland, where a party has an election, and has made it, he must abide by it. He cannot approbate and reprobate according to the Scotch law expression; that is, he cannot take the benefit conferred, and reject or evade the corresponding burden or privation.

Definition source
AI-transcribed
Bell, William, A Dictionary and Digest of the Law of Scotland, 7th ed. rev. George Ross (Edinburgh: Bell & Bradfute, 1861), s.v. “Election.” Public domain.

Legal Subject: Election

Case Date Legal Subject Abstract
Mr John Snodgrass, Preacher of the Gospel, George Steel, John Beatson, and Others v. Mr John Logan and Others 1772 Ministers, Adjudication, Aliment, Contract, Election, Election contest This case concerns the selection of the second minister for the parish at South Leith. In the past, the second minister has been selected by a committee with representatives from the incorporations of different trades and the kirk-session (a group of elders in the local congregation). The defender John Logan and the pursuer John Snodgrass were set up as candidates. The incorporations and the kirk-session disagree about the candidates. Each side also points to errors in the selections and voting process. In an interlocutory ruling, Lord Kennet Ordinary found for Logan. Mr Snodgrass, and the voters on his side, brought a process of reduction and declarator against Mr Logan, and his adherents, before Court. Mr Logan and his party repeated a counter-process of a similar nature.
Alexander Young and others v. Andrew Johnston and others 1767 Election contest, Debt, Aliment, Reduction, Succession, Election The pursuers alleged that Andrew Johnston Sr., bailie of Anstruther Easter, and his son Andrew Jr. accepted money to pay off the town's debt from men who wished to run for the borough's parliament seat. The pursuers therefore sought to have the election reduced.
Andrew Gray and Others vs. David Wilson and Others 1790 Election contest, Election, Interlocutor, Adjudication, Aliment, Sequestration Andrew Gray and others pursued David Wilson and others regarding the contested election of magistrates and counsellors in Anstruther Easter, seeking to void the defenders' election and obtain a declaration that the pursuers were the lawfully chosen officers. The defenders maintained the validity of their election and the proper exercise of voting rights, while the parties disputed whether the presiding magistrate possessed an ordinary vote or merely a casting vote to be exercised only in cases of equality. The pursuers contended that the magistrate had no ordinary vote and could only break ties, whereas the defenders argued that Baillie Chalmers had no right to vote unless an equality of votes existed.
Anstruther-Paterson v. Rutherfurd 1791 Election contest, Election, Oath, Aliment, Collusion, Feu duties Documents available Full description in progress.
Chrystie and Chrystie v. Ferguson, et al 1788 Election contest, Decreet-Arbitral, Reduction, Election, Bribery, Corruption Alexander Chrystie and another pursued Ferguson and others to reduce and set aside the election of the Magistrates and Counsellors of Burntisland, alleging bribery, corruption, and invalid form. The defenders answered, maintaining the validity of the 1789 election and arguing that a majority of uncorrupted votes sustained the result.
Counsellors of the Burgh of Burntisland 1789 Election contest, Magistrate, Election, Aliment, Decreet-Arbitral, Reduction The Provost, magistrates, and counsellors of Burntisland defended the validity of the burgh’s 1789 election of counsellors against complaints alleging bribery and seeking voidance or partial relief. Alexander Pitcairn petitioned the Court to alter a recent interlocutor that had ruled against his election as a counsellor, while William Muir and James Davidson also pursued complaints regarding the election, prompting answers from the magistrates and subsequent duplies. The magistrates later submitted a memorial arguing that Muir and Davidson’s election was void due to their non-residence and foreign status.
Crawford, et al v. Morrison, et al 1787 Election contest, Aliment, Election, Mala Fides, Adjudication, Inhibition Thomas Crawford, Charles Pirrie, Alexander Paterson, and John Gardner pursued John Morrison and others to have Morrison’s election as Deacon of the Incorporation of Wrights in Glasgow declared void. The respondents defended the 1787 election as having proceeded by lawful procedure and majority vote, and further averred that the complainants had themselves accepted office under the contested appointment.
Fraser v. Lord Woodhouselee 1802 Election, freeholder right, Succession, Entail, Liferent, Valuation Simon Fraser, a freeholder of Inverness-shire, filed a complaint with the Court of Session objecting to Alexander Fraser Tytler’s claimed eligibility to vote for a knight of Inverness-shire. Tytler’s claim rested on his wife’s status as a freeholder of that county. In the course of the proceedings, Simon Fraser died, and William Fraser, another of the freeholders of Inverness-shire, took up the complaint. The debate centered on the 7th clause of the 12th of Queen Anne and the meanings of the words "property" and "superiority." In the end the Court repelled the complaints of the pursuers and upheld Lord Woodhouselee's enrollment and vote.
George Allan and Others v. Andrew Crambie and Others 1770 Election contest, Aliment, Arrestment, Sequestration, Election, Reduction Pursuers George Allan, Andrew Garnock, and Charles Cock challenged the September 1769 election of defender James Hunter as deacon of the Incorporation of Hammermen of the town of Kinghorn. There were 12 votes for Allan and 10 votes for Hunter, but Hunter was able to successfully challenge the qualifications of 6 of the 12 voters in favor of Allan. For example, two of the voters were apparently non-residents. Allan, on the other hand, sought to challenge 3 of the 10 votes for Hunter. One voter was struck from the rolls of the incorporation for failure to pay dues. Allan et al. sought to prove that Allan properly achieved a majority of votes in the election. The parties disputed who received the majority of votes to become the deacon of the incorporation.
High v. Main 1788 Election contest, Election, Oath, Corporation, Adjudication, Voting rights Thomas High and Robert Main contested the deaconship of the Kinghorn Weavers' Incorporation, Main having petitioned to alter the council's decision admitting High to the office in his place. The central question was whether town-servants under the magistrates held voting rights in such elections, with the complainers citing precedents from Inverkeithing, Cupar, Perth, and Haddington to support their position. James Donaldson and others raised parallel challenges to the election of the deacon of the bakers, and the parties submitted answers and petitions seeking alteration of the Court's interlocutors.
Incorporation of Hammermen &c. v. Incorporations of Weaver &c. 1774 Trades, Reduction, Aliment, Privilege, Election, Succession This case was about the governance of the Glasgow trades house, an umbrella group comprising representatives of the various trades. These representatives included the deacon of each trade incorporation, along with “assistants” from each trade. The number of assistants allotted to each trade varied; the first four trades (hammermen, tailors, cordiners, and maltmen) had four assistants each, while the other trades had some lesser number. In 1771, the trades with fewer representatives moved to give themselves equal representation. The first four trades applied for a suspension of the proceedings, and later raised a process of reduction, on the ground that members of the trades house lacked the authority to adjust the number of representatives from each trade.
James Andrew, and Others, Merchant-Counsellors of the Burgh of Linlithgow, and Thomas Henderson, Deacon of the Incorporation of Weavers there v. Henry Gillies, Provost of Linlithgow, and Others 1775 Election, Election contest, Burgess, Debt, Tax, Magistrate The 1774 election of the council of Linlithgow produced three counsellors who did not reside in the burgh. Several members of the council sought a declaration from the court that the three non-residents were ineligible to serve, and that their election was therefore null and void. The burgh's provost, ten other members of council, and the challenged counsellors opposed such an order, claiming that the suit was politically motivated. The defenders argued that it was unnecessary for counsellors to reside in the burgh, that the pursuers were barred from suing because they had concurred in the election, and that many non-residents had served as counsellors over the years.
James Bruce v. James Hogg 1790 Election contest, Adjudication, Sequestration, Election, Aliment, Member of Parliament James Bruce, a tailor in Anstruther Easter, petitioned the Court against James Hogg, seeking a finding that the Town Council had wrongfully elected Hogg as a Counsellor in place of Bruce, who had been legally elected and accepted. Hogg answered that Bruce’s election was void and that the vacancy had been properly filled. Bruce, joined by other Counsellors and Magistrates of the burgh, replied, defending his own election and challenging the validity of Hogg’s interim election on the grounds of statutory time limits and lack of prior notice.
James Cheap v. William Morehead [Copy 1] 1790 Liferent, Sasine, Disposition, Sale, Valuation, Election Digitization and Description in Progress.
Additional documents in this case can be found in the duplicate case record in UVALL Box 16 and in UVALL Box 22 - Vol. 03.
James Hill v. Thomas Hopkirk and John Macall 1779 Fine, Election, Arrestment, Corporation, Jurisdiction, Election contest In 1752 and 1769, Thomas Hopkirk and John MacCall, respectively, paid a £20 fine to avoid serving on the Glasgow Town Council. In 1778, both men having retired to the country, they were successively elected Dean of Guild and also declined the position. The Town Council demanded that they each pay a £40 fine to the Merchants House as a penalty, so the two men presented suspensions of charge to Lord Gardenstone. They argued that the Town Council was not a court of law and did not have the authority to seize the private property of a burgher. Furthermore, they argued that even if the Town Council had the legal authority to impose fines, both men had been liberated by the fines they had already paid. The Lord Ordinary ruled in their favor, and James Hill, collector of the Merchants House, represented against this interlocutor. He argued that such fines were customary in several Scottish burghs, and that their previous fine did not liberate the suspenders from serving as Dean of Guild. In response, Hopkirk and MacCall argued that it was unjust that two men, both over the age of sixty, should be required “to take up the load of a laborious employment, at an age, when the humane regulations of every civilized community, permit the willing subjects to lay down the burden of public office altogether.” The Court found that the men were not liable for an additional fine, having already been liberated from serving on the Council.
Jesson v. Gray, Rector of the School of Coupar 1778 Rector, Adjudication, Aliment, Arrestment, Sequestration, Election In 1775, George Gray was elected rector of the Cupar grammar school, vested with the power to appoint and dismiss his assistants at will. In November 1777, Gray dismissed John Jesson, second doctor of the school. According to Jesson the town council was widely displeased with Gray's conduct and indeed, around this time a "lawless mob" descended upon Gray's residence and broke his windows. Nevertheless, Gray petitioned the Sheriff of Fife to compel Jesson to leave his post. The Sheriff cited Jesson to appear, and Jesson then submitted his case to the Court. Lord Gardenstone passed the bill, and after Gray produced letters from members of the town council assenting to the dismissal, Lord Monboddo found that Jesson was properly dismissed. Jesson petitioned the Court for review. His advocate, William Craig, wrote that if any master knew before taking up a position that he would be “subjected to the arbitrary and capricious will of the head-master, no person of spirit would undertake the office. Such as did undertake it, would be put into a slavish and dependent situation, incompatible with that liberality of mind so essential in the teachers of youth.” The Court refused Jesson's petition.
John Gray v. John M'Aulay 1791 Election, Election contest, Penalty, Statute, Witness, Mala Fides John Gray, writer in Dumbarton, pursued John M'Aulay, town clerk of Dumbarton, to enforce statutory penalties for allegedly making a commission to George Ferguson contrary to the Act of 16 George II c. 11. M'Aulay denied issuing any commission, maintaining that the document was merely an extract of minutes, while Gray contended that the clerk's affixing of the burgh seal to the extract of election rendered it a legal commission. Following an Inner-House interlocutor that dismissed his complaint, Gray reclaimed against that decision.
Marquis of Lorne, et al v. Denny, et al 1796 Election contest, Interlocutor, Election, Reduction, Burgess, Appeal The Marquis of Lorne and others pursued John Denny and others regarding the Michaelmas 1796 burgh election in Dumbarton, seeking to overturn the minutes that recorded John Dixon’s vote as valid and asserting a majority victory despite the contested proxy. The defenders answered that the pursuers’ voters lacked burgess qualification, and subsequently argued that Provost Lorne possessed no voting right and that key electors were not burgesses, ultimately demanding a poll election.
Nisbet, et al v. The kirk-session of West-kirk 1773 Election contest, Heritor, Session-Clerk, Election, Salmon Fishing, Succession Sir John Nisbet and other heritors petitioned the Court against the kirk-session of West-kirk (St Cuthberts) for unilaterally electing a schoolmaster-clerk to serve as session-clerk and precentor without heritor consent. The kirk-session answered, admitting that it possessed no right to elect these parish officers without the consent of the heritors.
Robert Hamilton Provost of Kinghorn, Pursuer v. James Rutherford, John Aitken, David Sibbald and Walter Rymer, in Kinghorn, Defenders 1771 Defamation, expenses of process, Aliment, Fine, Proof, Election The pursuer, the Provost of Kinghorn, one of the royal boroughs situated upon the Firth of Forth, brought an action of damages for defamation against the defenders. They accused Mr. Hamilton of having sold the burgh's interest and having been bribed at the last general election. The pursuer limited his demand to the expenses of the process and the following judgment was pronounced, "Repel the defences; find the attack made by the defenders, upon the character of the pursuer, was malevolent and injurious; and therefore find them, conjunctly and severally, liable in expenses of process, of which ordain an account to be given in; but not in damages, in respect the pursuer has passed from any.”
Robert Munro v. John Baxter, Provost of Cupar, and Other Burgesses 1772 Election, Debt, Jurisdiction, Election contest, Adjudication, Aliment This case stems from a disputed election for the Dean of Guild of Cupar in 1766. Robert Munro and John Stewart stood as candidates. Munro claimed to have won the election. The town council decided that the other candidate, Stewart, had actually won. On appeal to the Court of Session, however, the court determined that Munro had won the election. The court did not award Munro costs and fees related to the litigation. Munro then petitioned the town council for reimbursement of his expenses. The town council agreed to make a donation to Munro. A few members of the town council, objecting to this donation, sought to stop the payment in court. Munro contended that the Court of Session did not have jurisdiction over the royal burrows with respect to administrative and revenue matters.
Shaw v. Fleming 1775 Elections, Burgh, Election contest, Election, Voting rights, Aliment This case concerns a disputed election in the burgh of Rutherglen. Different trades (including deacons, masons, and weavers) would meet with members of their industry and submit lists of candidates for the elections, a common election practice of the period. Pursuers George Shaw et al. lodged a complaint against the town council of the burgh of Rutherglen. Apparently the town council adopted a practice of restricting voting to resident masons and wrights, and disallowed non-resident masons and wrights from voting. Shaw et al. alleged that this attempt to disenfranchise the non-resident masons and wrights was unlawful.
Sir William Forbes and Others v. Andrew Gordon 1789 Liferent, Freeholder, Election, Sasine, Election contest, Teinds Sir William Forbes of Craigievar, Baronet, George Skene of Skene, Esquire, and others petitioned the Court to overturn the Freeholders' decision enrolling Lieutenant-Colonel Andrew Gordon as a Freeholder, alleging that Gordon held his lands by nominal and confidential titles that disqualified him from that status. Based on the single document cataloged for this case.
Stewart v. Magistrates and Town Council of St. Andrews 1792 Election contest, Suspension, Reduction, Interdict, Election, Interlocutor Robert Stewart, claiming to be the duly elected Deacon of the Incorporation of Wrights in St Andrews, petitioned the Court to set aside the election of John Edie and declare his own title valid, alleging that Edie’s election was voided by a court interdict and insufficient legal votes. The Magistrates and Town Council of St Andrews defended Edie’s election as lawful and accused Stewart of unlawful usurpation of the office. The litigation proceeded through successive petitions and answers, with Stewart additionally moving the Court to alter interlocutors regarding expenses and other procedural orders.
William Campbell v. Sir John Anstruther, of Anstruther 1790 Election, Election contest, Representation, Aliment, Succession, Statute William Campbell petitioned the Court to overturn the election of Philip Anstruther in place of Sir John Anstruther and to sustain his own vote as a constituent member of the Council meetings. Sir John Anstruther answered, rejecting allegations of illegal council removal and election manipulation, while Inshie separately contested the forfeiture of his East Michaelmas seat on grounds of non-residency and want of notice near a general election. The parties thereafter exchanged replies and duplies debating the regularity of the April 1790 Council meeting and the legal right to challenge the election of Counsellors of Kilrenny.
William Toshack v. Alexander Smart 1771 Voting rights, Valuation, Feu, Election, Election contest, Teinds The office of the schoolmaster in the parish of St. Cuthbert's became vacant. In the election of an assistant schoolmaster for the parish, two questions occurred as to the right of voting. The pursuer, Mr. Toshach who participated in the election, maintained that all the heritors whatsoever, who were liable in payment of cess and parish burdens, had a right. The defender, on the other hand, maintained that the right was reserved only to such heritors as were separately valued on the cess-roll. To decide this issue the Lords looked at the terms and meaning of the Act of 1696, c. 26. for the settling of schools. The pursuer also argued that the liferenter, whilst the defender affirmed that the fiar, had the preferable right of voting. The Lord Ordinary found the liferenter "has a right to vote, and not the fiar.”

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