Scottish Court of Session Decisions

Subject_1 MEMBER of PARLIAMENT.
Subject_2 DIVISION VI.

Summary Complaint to the Court of Session.
Subject_3 SECT. II.

Upon what grounds is a Complaint admitted.

Gordon of Newhall
v.
William Pulteney, Esq

Date: 10 February 1768
Case No. No 245.

A summary complaint sustained, where an objection for striking a person off the roll had been repelled, though by the literal words of the statute it is allowed only in three cases; 1st, Where a person is refused, 2dly, Where he is struck, off the roll; and 3dly, Where he is unjustly enrolled.

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William Pulteney being at Michaelmas 1766 admitted upon the roll of free-holders for the shire of Cromarty, Gordon of Newhall, previous to the Michaelmas meeting 1767, lodged with the Sheriff-clerk his objection why Mr Pulteney should not be continued on the roll, which was, that his circumstances were altered by a sale of the subject upon which his qualification depended. By Mr Pulteney's keeping out of the way, there was no opportunity to prove the objection by his oath; and as the objector had no other relevant proof ready, it carried to repel the objection as not instructed.

In a complaint to the Court of Session of this supposed wrong done by the freeholders, the Court was unanimous, that the freeholders had done no wrong. But then it was doubted, whether it was not competent to admit the objection to be proved in this Court. Ratio dubitandi, In questions of election, the Court of Session has no original jurisdiction, being only a Court of review or appeal; and, therefore, that if the court of freeholders have not been guilty of any wrong, the complaint ought to be dismissed. A distinction was urged, on the other hand, between refusing to sustain a man's title to be put upon the roll, and refusing to sustain an objection to his being continued upon the roll. In the former, if the evidence of the claimant's title be defective, the freeholders must reject his claim. A complaint of wrong to the Court of Session would be ill founded; nor would his offer to supply the defect be listened to, leaving him to apply to the next Michaelmas head-court. But, in the latter, where the objection is rejected for want of evidence, the Court is bound in equity to admit documents to be produced before them for proving the objection. There can be no other remedy where the sale by Mr Pulteney is not upon record. Mr Pulteney will keep out of the way to prevent expiscation by his oath; and a court of freeholders have no power to force production of any writings.

“The Court accordingly sustained themselves competent, and gave warrant for production of writings to prove the objection.”

This case deserves to be kept in remembrance, as an instance of supplying a defect in an act of Parliament, in order to complete the remedy intended by it. For my part, I thought the remedy too bold, because the complainer had a process at common law for turning Mr Pulteney off the roll, though more tedious and perhaps more expensive. It is a rule, that equity never interposes where there is a remedy at common law.

Fol. Dic. v. 3. p. 433. Sel. Dec. No 260. p. 333.