BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Provost John Bucknay, Bailie Thomas Smith, and Others v John Ferrier. [1753] Mor 1854 (10 March 1753)
URL: http://www.bailii.org/scot/cases/ScotCS/1753/Mor0501854-009.html Cite as:
[1753] Mor 1854
Provost John Bucknay, Bailie Thomas Smith, and Others v. John Ferrier
Date: 10 March 1753 Case No. No 9.
Found, that it was no objection to the chusing of a person a guild counsellor of a burgh, that the Court of Session had declared him incapable of exercising the office of a judge, on account of extortion.
Click here to view a pdf copy of this documet : PDF Copy
The town council of Linlithgow having elected John Ferrier to be one of the guild counsellors, Provost Bucknay and others suspended, and brought a reduction of the election; setting forth, that by a sentence of the Court of Session, John Ferrier had been found guilty of an illegal extortion of a sum of money while he acted as a judge; and therefore declared incapable to exerce the office of a judge in all time coming: And they insisted, That he was thereby disabled from being elected a counsellor; 1st, Because a counsellor may, in some sense, be called a judge, as he is intrusted with the administration of the burgh; and must give his opinion with regard to the direction of the public affairs thereof: 2dly, Because, by the set of this burgh, the provost and four bailies, who are judges in the strictest sense, are chosen out of nineteen guild counsellors; as therefore these counsellors are the great leet, out of which the provost and bailies are elected, none can be a counsellor but who is capable of being elected into these offices. If one incapable may be chosen a counsellor, so may all the nineteen; and then how could the election of the provost and bailies proceed?
Answered for John Ferrier: That penal sentences are never to be extended; he was only found incapable of being a judge, but is as capable of any other office as ever. Had he been declared incapable of public trust, there would be some foundation for the suspenders argument; but a counsellor is not a judge: And, though the provost and bailies are elected out of the guild counsellors, it does not from thence follow, that none can be a counsellor but who may also be a provost or bailie, for these may be chosen out of the remaining counsellors; and, according to the suspenders argument, Mr Ferrier could not be a burgess, because the magistrates are chosen out of the burgesses; but, as it must be admitted that he remains a burgess, so he also may be a counsellor.
‘The Lords repelled the reasons of suspension; and assoilzied from the reduction.’
Reporter, Lord Elchies.Act. R. Dundas & R. Bruce.Alt. Williamson & Jo. Grant.Clerk, Gibson.
Fol. Dic. v. 3. p. 99. Fac. Col. No 74. p. 112.
