United Kingdom House of Lords Decisions

Robert Angus and others, councillors of the burgh of Inverkeithing, presented a petition and complaint, under the 16th Geo. II. c. 11. against Montgomerie and others, stating that by the set of the burgh it was declared that “the council consists of fifteen persons at least, viz. the Provost, two Bailies, Dean of Guild, and Treasurer, and ten or more inhabitant Burgesses:” That the mode of election was ordered to be thus:

“Upon the 29th of September yearly, the Magistrates and old council meet in the forenoon within their tolbooth; and when those of the old council, who are desirous of an ease, have

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demitted their offices, they choose as many new councillors in their room to keep up the number; and first they elect the Provost, then leets five of the council, and chooses two out of them Bailies for the ensuing year; next leets three, and chooses the Dean of Guild; and last two, and chooses the Treasurer; all swearing the oaths de fideli and secresie, and taking and signing the oaths, &c. for the time ordered to be taken, and the burgh letter anent elects read immediately thereafter:”

That, at the Michaelmas election of 1812, a general protest was taken against illegal votes; that Montgomerie and several others, including the respondents, were not “inhabitant burgesses;” and that, notwithstanding, one of them had been elected bailie, and the others had been continued on the roll as councillors. They therefore prayed that they should be struck off the roll, and declared disqualified. To this Montgomerie &c. answered, that, by the practice of the burgh, the councillors were elected for life; that the allegations were not relevant to disqualify them; and it was averred that they were inhabitant burgesses. On this latter averment the parties being at issue, a proof was allowed and taken, on advising which, the Court, on the 2d of January 1816, found, “That the said complaint is competent against such of the respondents as were continued on the roll of councillors of the burgh of Inverkeithing, at Michealmas 1812, in so far as they or any of them were by law disqualified from being continued: That by the set and constitution of the said burgh, the councillors thereof must be inhabitant burgesses, and therefore sustain the objections of non-inhabitantcy made by the complainers against the following persons on the said roll at Michaelmas 1812, viz. John Muckersy, John Gulland, David Wishart, William Fulton, and Captain John Montgomerie: That the said pursuers, and each of them, were disqualified from being so continued, or from acting as councillors of the said burgh, and grant warrant to and ordain the clerk of the said burgh to expunge their names from the said roll, and decern accordingly: Repel the whole objections to the continuance of Duncan Montgomerie and Alexander Montgomerie on the said roll at Michaelmas 1812, and also repel the whole objections to the election of Alexander Montgomerie as a bailie of the said burgh at Michaelmas 1812, and assoilzie them and each of them from the conclusions of the said complaint, and decern, and find none of the parties on either side entitled to expenses of process.”

Both parties reclaimed, and Montgomerie and the other respondents, against whom judgment had been pronounced, now

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