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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Alexander Eraser of Culduthill v Sir John Gordon. [1768] Hailes 240 (17 November 1768)
URL: http://www.bailii.org/scot/cases/ScotCS/1768/Hailes010240-0097.html
Cite as: [1768] Hailes 240

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[1768] Hailes 240      

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 MEMBER OF PARLIAMENT.
Subject_3 The Trust Oath cannot be put before the meeting of freeholders is constituted by the election of Preses and Clerk.

Alexander Eraser of Culduthill
v.
Sir John Gordon

Date: 17 November 1768

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[Dictionary, 8777.]

Auchinleck. The statute is express. It requires an alteration of circumstances allowed by freeholders. This implies that the freeholders must judge. As to the oath, it may be tendered before the choice of preses and clerk. This was the opinion of Craigie, Lockhart, and myself, in the case of Selkirk, where the election turned upon that circumstance. The losing party was so well satisfied of this, that there was no complaint lodged. The reason is obvious: As to taking oaths, the man, not the meeting, must judge. But still I think Sir John acted irregularly in tendering a new oath. If the preses may change the oath so as to prevent a man from taking it, he may do as was once done in Stirlingshire,—he may make a new oath to remove the swearer's scruples.

Monboddo. The proceedings of this Head Court were subversive of all order, tending to turn a meeting of election into a Polish Dict. The last commissioner took upon him to do what your Lordships would not do. He struck a freeholder de plano off the roll. Next, he administered a new oath. I doubt whether Culduthill was bound, at that period, to take even the statutory oath. However, he took it.

President. The Act 16th Geo. II. is not a penal law, but a law well calculated for preserving order in elections. The parliamentary preses must call the roll. He must read and do nothing more. I think the trust oath may be tendered at the very beginning, for otherways one might cast the election who had no right to vote. However, the oath which Sir John Gordon put was not the trust oath.

On the 17th November 1768, the Lords found Sir John Gordon liable in the statutory penalty for omitting to call Culduthill's name.

Act. Ilay Campbell. Alt. H. Dundas.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


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