brown case John HOGGAN provost of the borough of Kinghorn all appellant  William Wardlaw colonel james saint clair all respondent that march scot r r a  write agreement between certain elector be part of the magistracy or town  council of a burgh in Scotland bind themselves to act in concert with each  other on pain of be esteem infamous be unlawful and a election make in  consequence be void interlocutor of the court of session reverse by the set or  constitution of this borough it be appoint inter alian that the council shall  consist of merchant sailor and brewer to the number of seventeen and of five  deacon that annual upon Monday before Michaelmas the say council of twenty two  shall choose six new counsellor in the room of six who go off that upon  Wednesday immediate after Michaelmas yearly the old and new counsellor and  deacon shall choose the provost and two baillies and that out of this council  and deacon the treasurer shall be choose at Martinmas yearly some of the  respondent be in the magistracy or town council of this borough at and precede  the election at Martinmas be resolve if possible to continue the management of  the same in their own hand for end and purpose which be very obvious but be  sensible they have not the inclination of the inhabitant brown er p they  October enter into and execute a unlawful bind and covenant whereby among  other thing they oblige themselves each under the penalty of mark and of be  esteem infamous and unfit for society to act in concert with one another and  to give their vote plum at the election of magistrate which be to be next day  to such person as the major part of they shall think most worthy for manage  the borough till the next election at Michaelmas and then to stand by one  another without any difference or dissent and to vote plum with one another  not only for such person as the major part of they shall judge proper but also  to vote out such member of the council as the major part of they shall think  fit and to stand by and assist one another to the utmost of their power not  only in the choice of council and magistrate but in every other cause  whatsoever and that the cause of any one shall be hold as the cause of the  whole notwithstanding whereof the respondent be in a great measure disappoint  of their election at Michaelmas by the assistance of a old and new council who  do not favour their interest yet nevertheless and in pursuance of the say  association the confederate never will attend any meeting or make brown up a  quorum of the town council but when by the absence of other counsellor they be  sure to make a majority to carry on their several illegal and unwarrantable  practice particular with respect to Mr man one of their number who they keep  in the council at the election of though he be not qualify to be a counsellor  be apprehensive that without he they can not attain the end of their unlawful  confederacy and impose such a magistracy upon the borough at the election in  as will best suit their purpose the confederate to the number of eleven make  part of the meeting in which the magistrate and counsellor assemble on Monday  precede Michaelmas to choose new counsellor when the appellant Hoggan the  provost take a protest against Mr man be allow to sit in council but the say  eleven or some of they take the council book by violence from the town clerk  to prevent his enter the protest and tear the paper when he be go to enter the  protest on a lose schedule and great disturbance and outrage be continue for  several hour make it impossible for the appellant and respondent to proceed  joint which oblige the appellant the provost two baillies and the counsellor  who concur with they to remove to another part of the room and have require  the other counsellor to join with they they regular elect six new counsellor  agreeable to the constitution and usage of the borough but the eleven  confederate in pursuance of the same illegal covenant make choice of three new  counsellor only in place of six require by the constitution or set that they  may not remove from the council and of their associate and because they can  not find any one person more in town who will concur in their arbitrary and  illegal proceed on the Wednesday after Michaelmas be the anniversary for  choose magistrate the appellant be elect into their several office by the town  council legal and regular constitute take possession of their say office and  enjoy and exercise the same but the respondent with the assistance of the  three new counsellor choose by they elect themselves and vote two of their  associate to be baillies and the respondent Wardlaw who be a subscribe witness  to their bind of association to be provost though he do not reside in the  borough and they appoint their other confederate to be of the council and  under colour of this pretend election bring a action of reduction and  declarator before the court of session in Scotland to have it find and declare  that they be duly elect and that the appellant may be decree to desist from  trouble they in the exercise of their pretend office the appellant bring the  like action of declarator of their right but as several of the respondent be  at that time out of Scotland and that by reason whereof their process be not  returnable in court till after the lapse of day the appellant brown appear to  the suit of the respondent and insist that they be the person legal elect into  those office and that their election be preferable to the pretend election of  the respondent the cause be argue before the whole lord and the appellant  insist and offer to prove that the respondent or most of they have enter into  a unlawful brown er p confederacy and combination to vote in the say election  and have execute a write to the purport before mention they pray the proper  process to compel the recovery and production thereof the lord by their  interlocutor grant the usual process for recover any obligation or other write  enter into before or since the election of in relation to the election of by  the respondent or part of they or by any other person who have right to elect  or have be elect the appellant take out and serve the say process upon sundry  person particular upon John Sinclair common call Lord Sinclair old son of Lord  Sinclair decease and upon William Wardlaw and Thomas miller two of the  respondent Lord Sinclair appear in court and be solemnly swear and examine  upon oath depose and exhibit one paper mark by the lord examinator and depose  he have no other paper in relation to the matter in question nor know nor  suspect where any paper may be which paper so exhibit be execute by nine of  the respondent and by other four of their associate William Wardlaw depose he  have no write in relation to the election of but acknowledge he have see a  write relate thereunto which be put in my Lord sinclair hand some time the  week before but that it be not in his the deponent hand since he be summon and  the write produce by Lord Sinclair be show to he he depose that it the same  that he have see before and that he know of no other paper in relation to the  matter in question Thomas miller depose and exhibit a write on stamp paper  mark by the lord examinator that he never have any other write in relation to  the matter in question except the write produce by the Lord Sinclair and that  the paper then exhibit be draw out on and writ on stamp paper from the other  produce by the Lord Sinclair the last write bear date the that October and be  execute by the whole thirteen who execute the other write produce by Lord  Sinclair and by two more of the respondent and the Lord Sinclair the say  William Wardlaw and other two be subscribe witness thereto the cause come  thereafter to be argue before the whole lord when it be insist upon for the  appellant that the general convention of royal borough in Scotland have by a  act brown pass in that assembly direct all the borough to transmit to the say  convention the several set or constitution of such borough to be a rule by  which all controversy in election of magistrate shall from that time forward  be determine the set or constitution of the borough be among other transmit to  and record in the book of the say general convention as well as in the town  book of Kinghorn and acquiesce in without any objection till now that this  confederacy enter into by the respondent be not only contrary to the freedom  of election but inconsistent with the constitution of every society and  incorporation where every matter shall be determine by the free voice of the  majority whereas by this association be erect a new society the majority of  which though the minority of the council be to determine the whole that at the  say election of they break in upon the say constitution by continue James man  a counsellor ex duty that be by his be treasurer the precede year though he be  utter incapable by reason of his be a tradesman and no deacon or merchant and  that by the say constitution the treasurer be not of the council in virtue of  his office but the town council be constitute at Michaelmas one of the  constituent member thereof be elect treasurer at Martinmas thereafter which  make no addition to the number of twenty two of which the council consist  whereas by the arbitrary continue of Mr man the council be make to consist of  twenty three that they may take the advantage of his supernumerary vote and  that with the same reason they may extend the number of the council to forty  or reduce it to ten that the whole proceed of the respondent in these election  be null and void because they be carry on without the concurrence of any of  the magistrate who be a necessary part of the quorum it be plead for the  plaintiff now respondent that there be no original or authentic constitution  of the borough extant that they do not admit the authority brown er p of the  constitution date in the year though authorize by the general convention of  borough and even since the date thereof it have not be observe always in every  particular that the concert be a voluntary resolution to act joint in make  choice of such person as the majority of they shall judge to be fit for the  service and if such concert can lawful be make verbal it do not much alter the  case that the same be reduce into write that every previous engagement do not  destroy the freedom or liberty of election though enter into under a penalty  that the penalty annex be a idle addition and such as probable will not be  effectual to produce any action and that the other expression by which the  breach of this contract shall be render infamous etcetera import no more than  what be brown ordinary imply in every verbal concert or engagement and  therefore the add of such penalty can have such effect as to annul the whole  act and proceed of those who enter into this concert that it be no act of  force or violence commit by the respondent when be desert by the clerk they  retain the council book or suppose it be true that they will not suffer he in  their presence to write any minute as the act and proceed of the council other  than what they do direct those circumstance can not be of weight sufficient to  annul their proceed it do not appear in the proceed in the court below that  the bind or write concert have any influence upon the election by any previous  meeting to discover the opinion of the plurality of those who sign the same  all have free and of their own accord vote for the person elect at Michaelmas  and therefore though the enter into the bind shall be suppose strict speak  illegal and unwarrantable it can effect the election to the prejudice of the  borough which debate be consider by the say lord they by their interlocutor of  the d of January find the bind produce be contra bomos more unwarrantable and  unlawful the cause be again argue before their lordship when the appellant  pray to be absolve from this action in respect of the interlocutor already  pronounce but their lordship by interlocutor January find that the bind  produce be not per see relevant to annul the election against provost Wardlaw  and other magistrate choose with he year the appellant on the that petition  the court pray to vary their interlocutor but their lordship adhere to the  above interlocutor of the that of January and by another interlocutor of the  that their lordship have again consider the debate write produce and former  interlocutor in the cause they find that the objection propone for the  defender now appellant be not sufficient to void and annul the election of the  plaintiff now respondent magistrate and counsellor of the borough of Kinghorn  at Michaelmas last for the year thereafter in totum and remit to the ordinary  to proceed accord the appellant object at a hear before the lord ordinary that  the two pretend baillies elect by the respondent be incapable of act as  magistrate by reason of their be subscriber of the say unlawful bind his  lordship by interlocutor February in it all find that in respect of the  interlocutor of the whole lord the exception against the baillies be not  sufficient per see to annul their election brown and by another interlocutor  of the that in it all find decern and declare conform to the several  conclusion of the libel and upon a reclaim petition put in on the that for the  appellant the lord adhere to their former interlocutor and refuse the desire  of the bill against these six interlocutor last recite the appellant have  bring their appeal and assign r dundas W Murray the follow reason for their  reversal I for that the election of such of the respondent as pretend to have  be elect counsellor the Monday before Michaelmas be null because the elector  be not a quorum of any sort and act without the concurrence of any magistrate  which have be adjudge to be absolute necessary and the election of magistrate  the Wednesday after Michaelmas be illegal because make by counsellor undue  choose and not by half the number of new counsellor which the set or  constitution require brown er p two for that the set record in the book of the  convention of royal borough and in the town book of Kinghorn in the year be  the only rule whereby to judge of the constitution of this place and a law  which the corporation itself can never alter neither have they attempt to do  it the minute of every election begin with a reference to it videlicet this be  the day appoint by the set of this borough etcetera and though it may be true  that as against the crown a corporation can give itself a constitution which  be not strict warrant by prescription and immemorial usage yet they be  themselves estopped from claim franchise in a different manner than they have  set they out upon record or than they have in any solemn way consent to their  be establish and fix III for that as the election in almost all the royal  borough in Scotland have ever since the union and since the foresay act of the  royal borough proceed upon the foot and accord to the tenor of the set or  constitution record in the book of the convention of royal borough in  pursuance of their act and authorize by they the break in upon those  constitution so record and authorize and ever since acquiesce in without  complaint will manifest shake lose the foundation of all election of royal  borough in time come and leave their proceed to be arbitrary and precarious  accord to the humour of any magistracy in possession and in the present case  the respondent do not oppose any other fix constitution to this set but only  incertainty and arbitrary will which suit better with the purpose of that  association into which they have enter IV though the respondent have not go  contrary to the set yet their election be null and void because it be carry on  by illegal and immoral mean the voter be not free agent but under the  influence of a bind by which they engage in effect to submit their own  conscience and the right and privilege brown of the borough to the pleasure of  the majority of the league and thereby invest six man with the whole power of  the corporation V for that the judgement of the court of session seem absolute  inconsistent they have by one interlocutor find the bind of association  immoral unwarrantable and illegal and yet by their other interlocutor find  that such immoral unwarrantable and illegal bind be not sufficient to void a  election carry on direct in consequence thereof the respondent rely d Forbes I  strange on the argument urge before the court of session in support of the  interlocutor but the six several interlocutor complain of be reverse the  election of the respondent declare null and void and the respondent to be at  liberty to proceed before the lord of session upon that part of the libel  which call in question the election of the appellant brown in consequence of  the arrangement adopt by Mr brown the follow three case which be contain in  his original volume of report in parliament be omit in the copy prepare by he  for the present publication a circumstance which can not be detect till the  whole be complete and the index prepare they be now insert for the purpose of  render this work complete to the end of the year