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Scottish Court of Session Decisions >>
Sir Alexander Campbell, Baronet, v David Ballingall. [1791] Mor 8867 (3 March 1791)
URL: http://www.bailii.org/scot/cases/ScotCS/1791/mor218867-249.html
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.
Sir Alexander Campbell, Baronet, v. David Ballingall
Date: 3 March 1791 Case No. No 249.
A complaint received for not expunging the name of a freeholder, though no precise decision had been given in the freeholders' court on the point.
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At the meeting for electing a Member of Parliament in the county of Stirling, on 6th July 1790, David Ballingall, who for many years had been enrolled as a freeholder, was present.
At this time John Johnston, one of the freeholders, proposed that several questions should be put to Mr Ballingall, tending to shew that the titles on which his enrolment was founded were nominal, and had never been followed with possession.
Mr Ballingall refused to answer these questions; but declared his readiness to take the trust-oath. Mr Johnston then proposed, (as the minutes of election bear,) “That as Mr Ballingall refused to answer, he should be held as confessed, and ordered to be struck off the roll of freeholders; and protested, that his oath at any future period should be void, and that he ought to be expunged from the roll of freeholders.”
The freeholders did not proceed to vote on the merits of those objections; and the minutes of election respecting Mr Ballingall only farther mention, that “the oath of trust and possession having been tendered to the said David Ballingall, the same was taken by him.”
A petition and complaint was afterwards preferred to the Court of Session, by Sir Alexander Campbell, one of the freeholders, praying that Mr Ballingall's name should be expunged from the roll.
In bar of this complaint, it was stated, That such an application was only competent in three cases; 1mo, On a refusal to admit a claimant; 2do, On an improper admission; and, 3tio, On a refusal to expunge; but that the case then before the Court was dissimilar from all these, the freeholders having given no decision on the question, Whether Mr Ballingall should be struck off the roll or not?
The Court were clearly of opinion, that the circumstance of the freeholders having entirely disregarded the motion made by one of their number, respecting Mr Ballingall, was equivalent to a refusal to expunge; and, therefore,
The Lords sustained the petition and complaint as competent.’
Nota, Another question occurred at the same time, Whether a complaint, not entered within four months of the freeholder's enrolment, nor founded upon an alteration of circumstances, could be listened to? In this case the Court allowed a proof, which was taken. But the merits of the election having been previously determined by a Committee of the House of Commons, the Court had no opportunity to give any decision on the import of it.
Act. Geo. Fergusson, et alii.Alt. Dean of Faculty, et alii.
Fac. Col. No 172. p. 353.
