support, and denied the rights of a wife, to which she deemed herself entitled, probably under the bad advice of some female friend, put forth a stronger case, by way of intimidation, than she really had. That is a notion I will not say I can altogether be surprised at; notwithstanding, I will dismiss that from my judgment, if I see evidence, independent of that part of the case, to satisfy me that she had a case. I have not lived so long in Courts of justice as not to have observed that a good case is often marred by trying to make it better, by the contrivance of parties. The other point which I wish to advert to, which cast the case into a shade of doubt, is, that a good deal of correspondence has taken place, in which letters have passed from her to him, asking for money in the most touching and painful manner, and alluding to the children and the connexion that had passed between them, and the footing on which they ought to stand;-these must have been present to her mind, yet no claim for the rights of a wife is put forth in that part of the correspondence. I look upon that as another unfortunate circumstance in her case-more unfortunate than the former, and tending to raise more doubt than the former. If she may have been ignorant of the law, and ignorant of her rights, as she says in her letter, her ignorance of her legal rights does not impeach them, nor impede her in the course she takes to have them decided. My Lords, these are the grounds on which I rest my opinion, and upon which I call upon the House to affirm the judgment-though, for the reasons I have last mentioned, I shall not ask you to affirm it with costs. My Lords, I think it my duty to mention, that as I have said thus much with respect to the lady's character, for her vindication, and for the sake of the appellant as much as for the respondent, she is now his lawful wife;-she is as much his wife by the law of Scotland, as if that marriage had never been disputed; and every thing that sets up her character, takes off any thing that, in the heat of argument, at one time (not here, but elsewhere,) may have been attempted to be cast on her. I feel anxious that that should be removed, which, as far as my judgment can remove it, I have endeavoured to do. I will say for him (and in saying so, I say it for her who is now his wife, as much as if she had been publicly and openly married to him, and there never had been any dispute about the validity of the contract,) that though he may have acted harshly-though he may have acted lightly towards her-he may have been over-persuaded, by the foolish pride of those with whom he is connected by birth, to refuse to acknowledge this lady as his wife; yet, he is a very young man, and he may have been irritated, perhaps, by some sinister influence, perhaps irritated by bad health--and, therefore, I will look upon his conduct with as much tenderness as it is possible to regard it. Under all the circumstances, I trust, therefore, that he and his wife will be allowed to go from this Bar, without any injurious aspersion remaining on their characters, in consequence of anything that has taken place here.

Mr More.-My Lord, as, by the judgment of this House, this lady is distinctly constituted the wife of the appellant, therefore, as the appellant is liable for such expenses as she may have incurred in the course of this suit which she has now sustained, perhaps it will not be necessary to make any order on the subject of costs.

She

The Lord Chancellor.-I have said nothing about costs. is his wife, and she is not liable to costs. You know he is liable for all her debts by law, from the date of the copula. Judgment affirmed.

Appellant's Authorities.-Cuninghame, 20th July 1814; 2 Dow, p. 511. Forbes, 20th June 1811; 2 Fount. 647, 1 Dow, p. 188. Campbell, 28th November 1801; M. 1697. Johnstone, 18th November 1766; Dict. 12,681. Anderson, 13th November 1795; Dict. 12,690. Cunninghame, 20th July 1814; 2 Dow, p. 482. Saren, 22d June 1824; F. C. Ersk. I. 6, 34; Vin. Insti. p. 51. Ersk. I. 6, 3 & 4. Craig, II. 18, 19. Dirleton's Doubts and Stewart's Answers, v. Marriage, p. 200, 278. Stair, I. 4, 6. Bank. I. 5, 2, 22. Ersk. III. 2, 1. Hislop, 15th July, 1696; Mor. 13,908. Buchanan v. Macnab, 16th June 1785; M. 13,918. Linning, 14th December 1748; M. 13,909. Ferguson's Consistorial Law, p. 163. Penny

Burgh Sett-Election-Petition & Complaint-Held, that where the sett of a burgh requires, that, at an annual election, the candidate who has a majority of present votes shall be declared duly elected; and that the election must be begun and completed on a certain day; and that, in the event of failure to appear and be installed, disqualification or double election of qualified persons, the right to elect shall devolve on, and be immediately exercised by the Town Council-a subsequent declaration by the Council, that, from the disqualification of the preferred candidate, the cindidate having the minority of voles was duly elected, is no valid election in terms of the sett; that all subsequent elections fall, in consequence of there having been no valid election at that annual meeting, and that the complaint against the Council's declaration, was presented within the statutory time.

The ordinary Council of the burgh of Dundee, was, in 1818, constituted by the convention, so as to consist of 21 persons, viz. a Provost, four Bailies, a Dean of Guild, a Treasurer, Conveners, Councillors, &c. These persons, together with the nine Deacons of the Trades, constituted the extraordinary council. According to the respondent, the said sett is, in so far as regards the ordinary council, partly popular and partly self-elective; the Convener being elected by the nine trades-the Dean and Councillor of Guild by the Guildry-the Provost, Bailies, Treasurer, &c. by the Town Council itself. While, according to the appellants, although the Dean and Councillor of Guild are chosen as above, instead of being chosen as under the old sett-the former by the Council from the former Bailies, the latter by the new Council-the other members of the Council neither are nor were strictly self-elected. The elections of these different persons are fixed for particular periods. In particular, it is provided by the sett, in regard to that of the Dean and Councillor of Guild, that,

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on the Wednesday immediately after the election of the Provost and other office-bearers, the Guildry Incorporation shall meet at 11 o'clock in the forenoon, in the Guild-hall, or such other place in Dundee as a general meeting of the Guildry shall at any time fix, and by the voice of a majority of the members present, elect a guild-brother, being a burgess, to be Dean of Guild for the year ensuing, and another guild-brother, being also a burgess, to be Councillor to the Guild, also for the year ensuing these to be both constituent members of Council, in room of the Dean of Guild mentioned in the formerly recorded sett, and of the Councillor to the Guild, of whose election no notice is taken in that sett: Provided always, that no member of the nine Incorporated Trades of Dundee, being also a mem ber of the Guildry thereof, shall be entitled to vote as a member of the Guildry in the election of any member of the Town Council, unless he shall have previously renounced his political rights as a tradesman or member of one of the nine incorporations." And the Dean of Guild acquires all his rights, and exercises all his duties, from the moment of his elec tion, except in regard to one particular,-viz. that "the Dean of Guild and Councillor to the Guild, shall attend the first stated meeting of the Council after their election, and,

before taking their seats in Council, shall produce their several burgess and guildry tickets, as evidence of their being burgesses and guild-brothers, with an extract of the minute of their election, certified by the Clerk of the Guildry."........." And in case the Dean of Guild, and Councillor to the Guild, and Convener, or any of them, shall fail to appear in Council on the day appointed for their taking their seats, or, appearing, fail to produce the requisite evidence of their several elections and qualifications; or, if it shall appear from the evidence produced, that the guildry and trades of either of these bodies have made a double election, then, and in any of these cases, the right of supplying the deficiency which shall have thus arisen in the Council, shall for that year devolve on the Magistrates and Council, who shall immediately elect a Dean of Guild and Councillor to the Guild, or either of them, in place of the Dean of Guild and Councillor to the Guild who have so failed to take their seats, as elected by the Guildry, and a Trades-Councillor in place of the Convener who has so failed to take his scat, as elected by the trades; without prejudice, however, to the Guildry and nine Incorporated Trades exercising their respective rights to elect those members of Council in future years."

At Michaelmas 1827, the respondent, Kay, was, according to his own averment, denied by the appellants to be a regular freeman, burgess, and guild-brother. He had not taken the burgess oath,—he had not a burgess ticket, and his name was not in the locked-book of political burgesses. But the minutes of the Town Council (28th August 1828,) contain the following entry in regard to him :—

"The locked-book of the burgesses being this day opened, the following persons were duly and lawfully admitted, and created free burgesses of the burgh, and all and sundry liberties, privileges and immunities thereto belonging, were confirmed on them: viz. Alexander Kay, grocer and spirit-dealer in Dundee, and that for having paid to the Town Treasurer, during the year from Martinmas 1805 to Martinmas 1806, the sum of £2, 15s. 6d., for the privilege of trading within the burgh during his lifetime, and for having now paid £10 Sterling to Mr Patrick Hunter Thoms, Town Chamberlain of Dundee."

The ticket which he thereafter obtained, expressed the character of his former privilege, in terms which Mr Kay, by a letter to the Town Council, disowned. At the election of Dean of Guild, Michaelmas 1827, Kay was regularly proposed as candidate, without either notice to, or objection by the electors, that he was not qualified. Mr Lindsay was also proposed. Mr Kay had the majority. A motion for a scrutiny was partly acted on, but dropped as inadvisable in that shape, and at that time, though not abandoned. The Dean of Guild declared Kay elected. A protest was taken for Mr Lindsay, and against Kay. The latter took the chair; and, thereafter, Morton was elected Guild Councillor. On the 8th of October 1827, Kay appeared in the general meeting of Council, and claimed his seat as Dean of Guild, producing an extract in some respects erroneous and irregular. It was objected, inter alia, that he had produced no evidence of his being a burgess. The Council, by a large majority,

"Found and declared, and hereby find and declare, that in respect the Council have determined, and hereby determine and declare, that the said Alexander Kay is not legally qualified to hold the office of Dean of Guild, it is unnecessary to enter on any inquiry of the other objections."

Lindsay then produced an extract of the minutes, and claimed his seat as "Dean of Guild, duly elected," as set forth in said minutes. The Council, having considered his claim, with Kay's objections

"Find, that the said William Lindsay has produced sufficient evidence of his being a burgess and guild-brother: Find, that

it appears from the said extract-minutes of the meeting of the Guildry, that the said William Lindsay and the said Alexander Kay, were the only persons put in nomination for the office of Dean of Guild, and that there were votes which have not been objected to for each of them : Find also, that the Council

have already determined that the said Alexander Kay is not legally qualified to hold the office of Dean of Guild: Find, therefore, that the votes given for the said Alexander Kay are not to be regarded: Find likewise, that as there were unchallenged votes in favour of the said William Lindsay, and no other person in nomination legally qualified to hold the office, it is not necessary to inquire, whether the particular votes mentioned in the objections were legal votes or not, and, therefore, that the said William Lindsay, the only qualified candidate, has been legally elected by the Guildry to be Dean of Guild for the ensuing year."

Mr Kay protested. Mr Lindsay was admitted as Dean of Guild, took his seat in council, and was duly qualified. Thereafter, Morton, who, according to the other respondent, stood in the same situation as himself, but whom the appellants alleged to be a regular burgess, appeared to claim, and assumed the office of Guild Councillor. And, at the annual election in 1828, the Town Council elected Mr Jobson to the office of Dean of Guild, in case neither Mr Morton or Mr Lindsay should be held duly elected. Kay and Morton presented a petition and complaint to the Court; and, on a remit to the Lord Ordinary, pleaded-That Kay was duly elected and otherwise qualified, and ought to be received Dean of Guild: That, if he was not, there was no legal election, and the admission of Lindsay was illegal: That the Council had not followed the only legal course of electing a Dean themselves, jure devoluto: That as the objection to the one petitioner applies to the other, Morton has not been duly elected, and the Council so not filled up, if that objection is valid: That the whole election of Magistrates and Councillors falls with those of the Dean and Councillor of Guild. To this the respondents (appellants) answered-That Kay was illegally, and Lindsay legally elected; and that, as the Council were acting judicially, subject to the review of the Court of Session, as at common law, the prayer for disfranchisement could not be granted: That, supposing neither lawfully elected, then, as the right of election devolved on the Town Council, without limitation as to him, they exercised it by electing Mr Jobson.

On the 27th November 1829,

"The Lord Ordinary, having heard parties' procurators, makes avizandum with this cause to the Lords of the Second Division, and appoints the parties to print and box the revised condescendence and note of pleas in law, and the revised answers and notes of pleas in law, in order to report; and grants warrant to enrol, &c.-Note.-The Lord Ordinary reports this case at the desire of both the parties. The complaint contains alternative conclusions;-either, 1st, To have it found that the whole election of the Magistrates and Council, at Michaelmas 1827, was null and void, in respect that there was no legal election of the Dean of Guild completed, in terms of the sett; or, 24, To have it found that William Lindsay, the person received by the Council as Dean of Guild, was not duly elected, and that the complainer, Alexander Kay, was duly elected, and ought to have been admitted by the Council. The merits of the case depend partly on matters of fact, in which the averments of the parties are opposite, and partly on questions of law; and in some points the law and the fact are very much mixed together.

-1st, The first plea in law for the complainer, and the first part of the first counter-plea for the respondents, depend on the facts regarding Mr Kay's situation as a burgess and as a guild-brother, -on the construction of the sett,-on the usage of the burgh in regard to the admission of burgesses and guild-brethren,-and on the validity of the votes given in the election meeting. Though there may be a good deal involved in this part of the case, it would probably appear to be fit for trial in the Jury Court, if not superseded by other points.-2d, The second plea in law for the complainer is, That, supposing him not to have been qualified to be elected, it was incompetent for the Council to declare his competitor duly elected, in respect that no notice of the ob jection to his qualification was given at the election meeting, whereby the votes given for him were not thrown away. And the third plea on the same supposition, is, That the Council could only make an independent election of a qualified person by their own powers, jure devoluto; and that, by the course which they have followed, no Dean was elected. These pleas seem to depend on questions of pure law, assuming the facts as against the complainer. And they are met by the second part of the respondents' first plea.-3d, The last, or fifth plea in law for the complainer, That, if no Dean of Guild was lawfully chosen, there was no legal election, would, if his second and third pleas were also sustained, support the first conclusion of the complaint.-4th, The fourth plea in law for the complainer relates to the alleged disqualification of Mr Lindsay, the person declared to be duly elected. And this involves a case of fact, construction and usage, which would probably require trial. But, 5th, The respondents, in a third branch of their first plea in law, maintain, that, even though they erred in judgment, the proceeding was judicial, and, though subject to review, would not infer a nullity in the whole election. This is a point of law which, if sustained, would, on the supposition made, introduce the second alternative conclusion of the complaint. But it probably would not be decided unless the facts were either admitted or ascertained by trial.-6th, But the respondents, in their second plea in law, farther maintain, that, supposing neither Mr Kay nor Mr Lindsay to have been legally elected in 1827, a Dean of Guild was lawfully elected by the Council, in virtue of their own powers, in 1828. This involves a question of law as to the effect of the proceeding referred to, to prevent the consequences of any error in the election of 1827. In this state of the case, it has been thought proper to report the cause, rather than at once to send it to the Jury Court. And as it has been found inconvenient, in other cases, to have a shut record where a remit to Jury trial may take place, the record, though fully made up and revised, has not been closed."

At advising, the respondents urged that the point of law should be disposed of first, as its disposal in one way would render unnecessary any remit to a jury. The appellants maintained, that as the law did not regard any point of mere relevancy, the whole case should go to the Jury Court.

The Court, on 12th December 1829, ordered a hearing, and on 9th March 1830,

"The Lords having resumed consideration of this case, after hearing counsel in their presence, in terms of their former interlocutor of the 12th December last, In respect that the election of Alexander Kay, as Dean of Guild of the burgh of Dundee, for the year ending the 8th of October 1827, was not duly completed and declared by the Council, in terms of the sett of the burgh, and that William Lindsay was not duly elected Dean of Guild in terms of the sett, and that the number of the Council at the close of the annual election, complained of, was thereby incomplete,—Therefore find, That the whole election of Magistrates and Council of the burgh of Dundee for the said year was illegal, null, and void, and decern and declare accordingly: Find the complainer entitled to expenses, and allow an account to be given in, and when lodged, remit the same to the auditor of Court to be taxed, and reported on in common form."

Upon this judgment being pronounced, petitions were presented to the Court of Session in the name

of Kay and Morton, praying the Court to appoint interim-managers. Managers were accordingly appointed, who have since managed the affairs of the burgh. The Magistrates appealed against the above judgment, pleading-I. The action, or petition and complaint, ought to have been held incompetent; becanse, 1. It came too late. The election by the guildry incorporation of Dundee of its representatives in the Town Council, is regularly the last part of every annual election; and to render a complaint competent by 16 George II. c. 11, it must be presented to the Court of Session" within two calendar months after the annual election of the Magistrates and Councillors." In the present case, the meeting of the guildry incorporation, for the annual election of its representatives, was held on 3d October 1827, and the petition and complaint was not lodged till 8th December following. 2. Annulment of the whole election was incompetently demanded on account of an alleged erroneous judgment given by the Town Council, determining judicially a special question of competition between two candidates, for each of whom votes had been given in a body distinct from the Town Council, and subordinate to it. 3. As the respondent in appeal, Alexander Kay, was not, at the period in question, a burgess of Dundee, any claim to hold office on his part was manifestly incompetent.-11. On the merits, the action was unfounded, and the decision appealed from is, in the circumstances of the case, erroneous; because, 1. Disputed facts necessary to found a correct judgment were neither admitted nor allowed to be proved; such as, 1st, Whether Mr Lindsay was elected by a majority of legal voters; and 2dly, Whether, by the usage of the burgh of Dundee, persons in the situation of the respondent, Mr Kay, are disqualified from holding any office in the magistracy of the burgh of Dundee. 2. In a case in which no power existed of authorising a new election, it was erroneously held that votes for an unqualified candidate annul votes lawfully given for one fully qualified. 3. If the Town Council of Dundee decided erroneously in the competition between Messrs Kay and Lindsay, yet, as they were exercising a judicial function, the existence of the Council ought not, on that account, to have been annulled, although the decision given by them, as between the competing candidates, might have been rectified. 4. The precaution adopted at the annual election of 1828, of inviting both of the competitors, Kay and Lindsay, to vote, and of appointing a proxy or substitute to act for Kay, as an absent member of the Town Council, ought to have protected the burgh against disfran chisement.

An understanding took place between the appellants and the original respondents; and the latter declined to lodge a case, with the view, it was alleged, of obtaining a reversal of the judgment of the Court below. The present respondent, John Mackenzie Lindsay, then lodged a case, pleading-I. That he had a right to be heard as a burgess and guild-brother, even although he was not a constituent member of the meeting of election. All complaints in regard to the elections of Magistrates, are matters of public conIt is in the discretion of the Crown to grant a

cern.

warrant of election of new Magistrates, either to the hurgesses or to the body who compose the disfranchised corporation. And the respondent is entitled to assert his interest therein. By the judgment of the Court below, the burgesses have acquired an interest which they cannot be deprived of by the silence of the original respondents.-II. The complaint was presented within the statutory time, the election not having been completed till 8th October, while the petition was presented on 7th December.-III. The Council was not completed in terms of the sett. It is because the number of the Council was left incomplete that the election has been set aside. Let it be assumed that Alexander Kay was not duly qualified; no objection was stated to his qualification at the election, and Mr Lindsay had not a majority of votes. On the contrary, the majority voted against Mr Lindsay; and it is impossible, upon any principle of election law or practice, to hold that the majority of votes against him must be held to have been thrown away, when the objection to Kay's want of qualification was not stated. But although from the hypothesis now put, that Kay was not qualified, it would necessarily follow that his election was not good, it is certainly by no means a consequence of that circumstance that Lindsay was duly elected. It follows only that there was no election. The point for consideration, however, is, what was done by the Council. The guildry elected Kay; Kay failed, as it is said, to produce evidence of his qualification. Kay, let it be assumed, was wholly disqualified. This is precisely one of the cases for which the sett provides, directing that the Magistrates, by virtue of their right of devolution. shall immediately elect a Dean of Guild. But did they do so? By no means. They, on the contrary, pronounced a judicial determination, and a wrong determination, that Lindsay being the only qualified can didate, it was unnecessary to inquire into the legality of the votes in his favour; and they found that he had been legally elected by the guildry, although in point of fact, as well as in point of form, no such election had taken place.

Lord Chancellor.-My Lords, I confess that, when this case was first opened this morning, I entertained, for a considerable time, some doubt with respect to one point. I entertained considerable doubt on one point, as my noble and learned friend did on another point, while one part of the argument was proceeding for the appellant, against the judgment now sought to be reversed. I have since, and I believe, may say, my noble

and learned friend concurs in that opinion, satisfied myself that those doubts, chiefly grounded on the terms of the Act of Parliament, and the terms of the sett, of the 6th article of the sett, with the proceedings thereupon, were not well founded, and that the Court below had come to a right decision on that point, as well as on the other. It has been justly observed, and it cannot be doubted, that there are two points which are brought into discussion by this appeal; and one is the question of limitation- Whether the statutory period of two months had elapsed before the complaint in question, before the petition of complaint (which summary mode of proceeding gave rise to the present appeal) was presented? The other, Whether or not, upon the merits admitting that the petition and complaint were duly prosecuted, and within the statutory time-whether or not the Court came to a sound conclusion on the merits of the case? The first of those questions would decide, if disposed of one way, in favour of this appeal, and against the judgment, would render the other question wholly immaterial. The second of the questions only becomes

material in the event of the first being given against the appellants. According to the view I am disposed to advise your Lordships to take of this case, the materiality of the second question is raised before your Lordships, by the first being disposed of against the appellants. Now, the first question-namely, the statutory period of limitation being or not being elapsed before the proceedings were commenced-depends on another question,namely, What shall be taken to be the terminus a quo?-the date from which the two months' period of statutory limitation shall run. If it is to be taken from the election by the guildry of Mr Kay he having a majority of 13 votes over Mr Lindsay-then the petition and complaint was out of time; if, on the other hand, it should be taken to run from the 8th of October, the day when the extraordinary proceeding that appears to have given rise to this complaint in the Council took place, then, on the other hand, it is in time, being just within two months. Every thing depends, then, on whether you shall take it to be from the 3d or from the 8th of October. The 3d of October was the election of Dean of Guild; he was elected. Mr Kay was elected by a majority of 13 voices over Mr Lindsay; and after that election, namely, on the 8th of October, the meeting of the Council was holden, at which several things are required to be done by the sett of the borough; and as everything depends on what those things are, it is necessary that I should at present call your Lordships' attention to them. According to the article of sett, the Dean of Guildry and Councillor to the Guild-that is to say, the person who prima facie has been elected Dean of Guild-the person who had the election of Dean of Guild on the third in this case-be" shall attend the first stated meeting of Council after their election, and before taking their seats in council, shall produce their several burgess and guildry tickets, as evidence of their being burgesses and guildbrothers, with an extract of the minute of their election certified by the clerk of the guildry." And at the previous election, it is only required that the person to be elected a Dean of Guild shall be a burgess, the Guildry shall elect a guild-brother, being a burgess, to be Dean of the Guild for the next ensuing year. Consequently, there is no production of the title-no production of the qualification of the candidate for the office of Dean of Guild, required by the 4th article of the sett, which provides for the guildry election, to be produced at that guildry election. Then, the 6th article requires, that after the election shall have been gone through, as provided for in the fourth, that at the meeting of the Council next after that election, these other things shall be done-this other stage of proceeding shall be gone through-the production of the burgesses and guildry tickets, as evidence of the party producing them, being burgesses and guild-brothers. Together with what? With an extract of the minute of their election. Now, I take it to be quite clear, that, in fairness of construction, according to the rules which are to be applied to all instruments, be they wills, deeds, Acts of Parliament, or setts of boroughs-this sixth article lays down what may be said to be the induction or institution of a person as a councillor of the borough; that he is a councillor, if he is a dean of guild by previous election—but that he must also be a councillor, at least to take his place as a councillor, he must produce a burgess and guildry ticket as evidence of his being a burgess and guild-brother. Can I then say that the whole con stitution of his title as a councillor has been completed, or is more than inchoate, when he has only gone through the stage of being elected Dean of Guild, under the 4th article-the 6th article plainly requiring him to take his seat, on doing more than being elected-on doing more than even producing an extract of the minute of his election-on producing bis qualifica-" tion-his burgess and guildry ticket. You see it requires an extract of the minute of election. If all that was wanted was his being elected, that would be enough; because he was elected, and his election was not disputed; but it requires him to go further, and to produce the evidence of being a burgess and guildbrother, by producing the burgess and guildry ticket, which production is never once hinted at in section 4th of the sett, which regulates the mode of proceeding at the guildry for the election, Now, my Lords, this goes far to throw light on what constitutes the complete election, and to get rid of the words which at first had struck me, and which I therefore put to the

counsel for the appellants, that they might deal with them, and get rid of them, if they could;-I mean to the respondentsthat they might deal with them and get rid of them if they could, namely, the difference between the election and taking seat-because it is" the first meeting after the election" which should seem to imply the election was over at that time;" and before taking their seats," not before being elected councillors, "shall produce a minute of their election," intimating the election was over, “ certified by the clerk ;" and it says, if any person shall fail to appear, or, appearing, fail to produce the requisite evidence of their several elections and qualifications, or there "shall have been"-in the past tense,-" there shall have been made"-in the past tense," a double election," and indicating that the election was one stage, as it at first appeared, and the taking the seat another done subsequent to, and independent of the election, and not constituting any part of the election; but when you take into consideration the matters which I have just now referred to, in respect of the institution or induction, as it were, of the councillors-that observation, which arose on what I have last referred to, appears to me to be settled in a great measure, if not altogether got rid of. Now come we to the act itself. The first act is less material, both because in point of time antecedent to the other, and because the other is more explanatory and more precise. It says, that "whoever apprehends wrong done at any annual election, is to bring his action before the Court," that is, his action, and not his summary petition, for making void-" They are to hear it summarily; but it is an action for making void the whole election (if illegal) only within the space of eight weeks after such election is over." It might be contended from that, you are to run the date eight weeks from the period of election, of which you complain; but the 18th of Geo. II., sec. 24th of that statute, chap. 11.-24th section appears to me to leave really no doubt on the soundness of the construction; for there it says, " If it apprehends any wrong to have been done by the majority of such meeting, to apply to the said Court of Session by a summary proceeding (which this proceeding is) to rectify such abuse, or for making void the whole election made by the majority, or for declaring and ascertaining the election made by the majority, so as such complaint be presented to the said Court of Session within two calendar months after the annual election of the Magistrates and Councillors." It really seems to me to make the whole proceeding just one election from the beginning to the end, (all the steps taken together,) and to make the two months run from the determination of those steps, from the last of the steps which completes that called in this part, not "election," or "such election," or "election complained of; " but the "annual election," as a thing known in the law" the annual election of the Magistrates and Town Councillors." I am therefore of opinion with the Court below, that, in this case, that is to be taken as the period from which the two months are to run; and then, my Lords, how greatly is that aided by the consideration which I have flung out-to be handled-to be dealt with by the counsel for the appellants against whom it bears, that if you do not give this construction, you really do no common fairness towards the Act of Parlia ment; you resort to what you never ought to have recourse tounless the act is so worded as to make it clear you cannot help it-an absurdity has been meant to be done by the act. You are always to lean to that which is consistent with itself, or its principle; and in this case the construction contended for on the appellants' party, appears to me to give rise to one of the greatest absurdities I can well imagine. This is a summary complaint —it is a summary mode—it is festinum remedium; and it is to receive, being beneficial-it is to receive a large and liberal construction. You will exclude all the benefit of that summary remedy altogether-every act or wrong meant to be complained of and the remedy to be sought by these means-by this summary means-if the party did not apply within two months from the time when, for aught that appears, he had no ground of complaint whatever. The two months, within which his application for the remedy is to be confined, would run from one period-not the period of the wrong complained of, for which the remedy is meant to be given, but from another period when, perhaps, he had no complaint to make,—as, for example, in this very case of Mr Kay; for it illustrates it very remarkably. Mr

Kay had no complaint from the 3d of October; he was elected by a majority of 13; his complaint first began on the 8th of October, not from the time of his being elected, which he had *no objection to- but his complaint began from the time of the Council refusing the vote of the guildry, and saying," although you have a majority of 13, yet you are not elected, because you are not a burgess, a guild-brother, (which I have no objection to; they came to the right conclusion, there is no doubt), but Mr Lindsay, who had the minority of 13, he ought to have been elected; and we elect him, although no notice was given of the flaw in your title, of the accident, whereby all the votes would be thrown away given after it." Consequently, then, if this did take place within a week, no doubt, and that left them time to apply; but it might have taken place three months afterwards. The next meeting of the Council might have been three months after the time; and then he is to be told, Because you did not apply when you had nothing to complain of, therefore, the time has gone out before you had any thing to complain of. I think, my Lords, it would be a monstrous and absurd conclusion to suppose the Legislature meant to exclude a very possible case—namely, that of the time having elapsed within which the complaint must be taken advantage of. The mode of redress, by summary petition and complaint, must be taken advantage of; that having elapsed before any one thing occurred of which the party in question had any right, or would dream of complaining. Upon this ground, I think the Court has well decided--and they appear to have come unanimously to that decision-and therefore, then, the question of materiality-the question of the merits, is raised before your Lordships; because the question is against the appellants, and for the respondents, on the two months' limitation. I am also of opinion-although, as that is the point which certainly is the clearest, I should take less time to state my reasons for it-I am also of opinion the Court below was right on that ground. The thing complained of-the petition and complaint-is the thing brought before the Court of Session; in this case, the thing decided on by the Court of Session is the thing brought before them by the petition and complaint; the thing brought before us by appeal is the thingwhich was decided by the Court of Session, consequently, the thing which is before us to decide on appeal is, and can be none other than that which took place on the 8th of October-the decision of Council setting aside Kay's election (which I do not complain of), and putting Lindsay in his place, which I do complain of. That is the question. Now, what was the Court of Session to do with this? Were they to say,-" True it is you are quite wrong in saying, Lindsay, having the minority, beat Kay, who had the majority; because Lindsay had a qualification (which was never brought in question), and Kay had no qualification which objection was not taken at the time ;-true it is, that was wrong beyond all example of error; for I hardly ever saw any thing so wrong in an election as that ;-true, that is all wrong, but alia via data; that is to say, if you had done something else, and had chosen either to scrutinize the majority of Kay, in which case you might have found Lindsay had the majority, although you take a wrong way at coming to a right conclusion, or to take advantage of your jus devolutum, and to elect him yourself, and then he would have been elected; and, therefore, quacunque via data, it is to be said, he, Lindsay, is to be sustained as duly elected, and you, the Council, although you came to that conclusion in a wrong and absurd and incousistent manner, yet, as you have come, on the whole, to a right conclusion, we will not listen to this petition and complaint." That is the argument, and it is that I am going to allude to; but it is wrong, fundamentum, as it appeared to me, because the matter was, whether or not the Council had done right in rejecting Kay, who had the majority of 13? Not only rejecting him for want of qualification, but putting Lindsay in his place, who had the minority-there having been no notice given at the election to make the votes thrown away, which were given for Kay. That is what is before the Court of Session; and the scrutiny was not before the Court of Session. The Court of Session had no right to say, "If you bad scrutinized, you would have found Lindsay had the majority;" because they had not scrutinized, and non constabat, he would be found to have the majority. But then it is meant to be said, "you ought to