and the Court, on advising it, dismissed the complaint, being of opinion, that no such invariable practice has been established as to alter the set. Against this judgment an appeal to the House of Lords was entered, when the Lord-Chancellor expressed his opinion, that, in his view, a contrary usage for forty years might vary the set, although he did not wish to decide that point; and that the case ought to be remitted for farther inquiry, into the practice, and as to the effect of such practice on the set. The case was remitted ac

cordingly 2.

1 This appears, from the report of the case, to have been the ground of the ultimate decision. At a former advising, it was rested partly on the circumstance, that the persons chosen would have been elected, in whatever form the leet might have been made out; Gardiner v. Magistrates of Kilrenny, 9th March 1826; Shaw.

223d March 1827.

CHAPTER II.

OF REVIEW, BY THE COURT OF SESSION, OF ELECTIONS OF MAGISTRATES AND COUNCIL.

PREVIOUS to the dates of the statutes bestowing upon certain persons the right of summary action or complaint, to the Court of Session, regarding the election of Magistrates and Council, that Court enjoyed, at common law, a jurisdiction in regard to such elections. The collections of the decisions of the Court of Session afford examples of the exercise of this jurisdiction 1.

This right of superintendance was, however, modified by the statutes above mentioned. The act 7th Geo. II. c. 16, sect. 7, provided, that any magistrate or councillor might bring his action,' challenging an election, or any abuse which had taken place at it, within the space of eight weeks only, and the Court was required to decide the question summarily, and to allow the successful party the costs of suit. Afterwards the act 16th Geo. II. c. 11, was passed, the 24th

' It may be observed, however, that there appear not to be many examples in the Collections of Decisions, of processes brought before the act 7th Geo. II. in the Court of Session, relative to elections of magistrates and councillors. We have an example in Stair, vol. ii. p. 844, of a declarator, decided in 1681, relative to the Magistracy of Stirling continuing too long in office; and in Gosford, p. 326, of a declarator and reduction, in which the declarator only was insisted in. A few other examples of processes are mentioned, Fol. Dict. i. p. 117; See also Edgar, p. 29. There may, however, have been many instances not reported. In the collection of Lord Elchies' Session Papers in the Advocates' Library, we have an instance of a reduction of a borough election, about the year 1722; vol. ii. p. 471. Before the Union, the Privy Council of Scotland frequently judged in cases of borough elections See Wight, App. No. 39; and Report, 1821, App. B.

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section of which provided, That it shall and may be lawful to, and for any constituent member, at any meeting for elec'tion of magistrates or councillors, or of any meeting pre'vious to that for the election of magistrates and councillors respectively, who shall apprehend any wrong to have been 'done by the majority of such meeting, to apply to the said "Court of Session, by a summary complaint, for rectifying 'such abuse, or for making void the whole election made by 'the said majority, or for declaring and ascertaining the election made by the minority', so as such complaint be pre'sented to the said Court of Session, within two kalendar months after the annual election of the magistrates and 'councillors; and the said Court shall thereupon grant a 'warrant for summoning the magistrates and councillors 'elected by the majority, upon thirty days' notice 2, and shall hear and determine the said complaint summarily, 'without abiding the course of any roll, and shall allow to 'the party who shall prevail their full costs of suit.'

The question has given rise to much discussion what effect these enactments have had upon the common law respecting the right of challenging elections of magistrates and councillors. The first of these statutes, it will be observed, authorises any magistrate or councillor apprehending wrong to have been done, to bring his action before the Court of Session in Scotland, for rectifying such abuse, or for making void the whole election (if illegal) only within the space of eight 'weeks after such election is over.' It seems clear, that, so far as respects this act, no form of action was established dif

1 It is justly observed by Mr Wight, p. 337, that it would have been more accurate to have said, 'for declaring and ascertaining the persons voted for 'by the minority to be duly elected,' because the preceding sections of the statute prohibit, under severe penalties, and the sanction of nullity, any separate election by the minority.

2 This notice is now restricted to fifteen days, by the 14th Geo. III. c. 81, sect. 1.

fering essentially from that process which was competent at common law. The object of the legislature seems to have been to limit the time within which the action should be brought, to provide for its speedy decision, and perhaps also to exclude the title to pursue, of certain parties who may have previously enjoyed such a title. The action was required to be brought only within the space of eight weeks,' as at common law it was perhaps not even necessary to bring it within the year; because, by the challenge of a previous election, the subsequent one would fall from want of power in the electors. The Court was also, by an after part of the clause, required to hear and determine the cause summarily;' and the right of action was given to any magistrate or councillor of the borough.' It is evident, however, that none of these provisions altered the proper form of the old process. It was still an action in its technical sense, originating by summons, and called in common form; and, in practice, the old forms of action were adhered to1. But it is equally clear that the common law right was limited to this effect, that it was no longer competent for a magistrate or councillor to bring his action,' i. e. the old form of action for wrong done at the election, after the lapse of eight weeks 2.

1 On looking into some of the cases decided after the passing of the act 7th Geo. II. but before the 16th Geo. II., as they appear in the Session Papers lodged in the Library of the Faculty of Advocates for Lord Elchies' decisions, it appears, that the process was sometimes a reduction, (See papers for No. 2. Burg. Roy.) sometimes a declarator (See vol. viii. p. 443, where the declarator concluded for declaring that the pursuer, and not another person, was duly elected councillor), and sometimes a reduction and declarator (vol. viii. p. 529.)

2 It does not distinctly appear, so far as I know, that subsequently to the 7th, and prior to the 16th Geo. II., any decision was pronounced, leading necessarily to the conclusion, that the common law was entirely superseded by the former act, so as to preclude an action in circumstances not distinctly falling within the letter of the act. There is, indeed, a judgment mentioned by Elchies (Burgh Royal, No. 17,) finding, that the statute 7th Geo. II., i. e. the limitation of that statute, extended to 'pro'cesses or conclusions of declarator as well as of reduction;' or, as it is

If these observations appear well founded, the next question must relate to the effect of the act 16th Geo. II. upon the previous state of the law. The act 16th Geo. II. it appears, from the clause which has been quoted, provides, that it shall and 'may be lawful' for a constituent member of the election meeting, or any previous meeting, apprehending wrong to have been done by the majority, to apply to the said Court of Session, by a summary complaint,' for rectifying the abuse, or for voiding the election of the majority, or declaring that of the minority, so as such complaint be presented 'within two kalendar months after the annual election,' and the Court are required to hear and determine the said complaint summarily. Here was evidently a totally new form of process made competent. There is, however, no express repeal of the previous act.

In the first place, it is now quite settled, that, after the lapse of the two months mentioned in the act of 16th Geo. II., it is incompetent to challenge an annual election of magistrates, not only by complaint, but also by reduction, in consequence of any wrong done at that election; but the point is probably not yet quite settled, whether a reduction is still competent within the period of eight weeks or two months, or whether a complaint is now the sole mode of challenging an annual election, on the ground of wrong done at it. The point as to the incompetency of a reduction after two months, has been determined in several cases.

Thus a complaint against an election at Anstruther-Easter having been cast, on the ground of an informality in the exestated in the Notes, vol. 2d, to the conclusion of declarator as well as of 'reduction.' But these processes or conclusions were so intimately connected, that if the statute reached the one, it could hardly fail to reach the other. Indeed, a declarator sometimes concluded to find such a one elected, and such another not elected, which is, in effect, to reduce the election of the latter. I have not succeeded in finding the Session Papers in the above case. In so far as regards a general declaratory action as to future elections, it will be afterwards seen that such a process is competent even at present.