WILLIAM RUTHERFORD v Hon JOHN E ELLIOT & Ors (Court of Session)

These provisions were said to have been extended to Scotland by the act passed in last session of Parliament for regulating election committees. Founding on them, Elliot pleaded , as a preliminary defence to the action, that it ought not to be entertained, the pursuer having neglected the appropriate remedy provided by the above enactments, for the determination of such claims as the present.

The Lord Ordinary (11th February 1840) issued the following interlocutor and note:

‘The Lord Ordinary having heard the counsel for the parties on the defenders' preliminary objection to the competency of this action, in respect of the want of the taxation and certificate said to be required by the statute, repels the said preliminary objection or defence; and in respect the defenders, the Honourable John Edmund Elliot and John Stewart Newbigging, state that they do not mean to acquiesce in this judgment, finds expenses due, allows an account thereof to be given in, and remits the same to the Auditor to tax and to report.’

Lord Meadowbank .—I entirely agree with your Lordship. I have no doubt, that at common law, before the Grenville Act, a party called up as a witness before an election committee was entitled to his expenses. It is said that this is a munus publicum, which must be discharged by the witness at his own expense; but an election petition is not to be brought by all and sundry, but only by parties having a valid interest. I have no doubt, therefore, that the argument on this part of the case is quite erroneous; and on the other points I concur with your Lordship, on the grounds you have explained.

Lord Ordinary, Jeffrey. Act. M'Neill, Inglis. Alt. Sol.-Gen. (Ivory,) Moncreiff, Swinton. Alex. Douglas, W. S. and J. Stewart Newbigging, W. S. Agents. T. Clerk.