THOMAS ELLIS v JOHN FRASER & Ors (Court of Session)

On the day previous to the nomination, Fraser, ‘as secretary of the committee for the election of Mr Crawfurd,’ wrote to the Sheriff of the county, intimating the intention of the committee ‘to nominate that gentleman on the hustings to-morrow.’ After Macaulay and Crawfurd had been respectively proposed and seconded, the Sheriff, on a show of hands, declared that Macaulay was duly elected, and no poll was demanded on the part of Crawfurd.

The pursuer averred that Fraser received, at the Sheriff-clerk's office, orders of admission to the hustings, signed by the Sheriff, and other orders of admission from the Lord Provost;—that the hustings could have contained 100 persons more, and that no person was refused admission, with or without an order, who showed that he was attached to either political party; and that Fraser and Grant were, previous to the nomination, warned, that if they took the benefit of the hustings they would render themselves liable for the expense of their erection.

These statements were denied by the defenders, who averred, that on application at the Sheriff-clerk's office, Fraser was informed that all the tickets admitting to the hustings had been previously disposed of, by being put into the hands of Macaulay's friends; that the defenders were admitted to the hustings, ex gratia of the Sheriff, on a written order of admission, the full complement of the regular tickets having been by that time issued.

It was admitted that Crawfurd was not present, and with reference to a letter from him, (which the pursuer averred was read upon the hustings, in which he expressly declined to be put in nomination,) Fraser and Grant did not admit its genuineness or terms, which (as they averred) they had no means of testing.

In defence, Logan admitted that he was liable for one-half of the account libelled, but maintained, that, at common law, and on the analogy of the act 2 Will. IV. c. 65, § 40, he was not liable, conjunctly and severally, with the other defenders, for the account, but only for an equal share thereof, on the principle, that the expense should be defrayed equally by the candidates or by their proposers; and that, on paying one-half of the expense, he was entitled to absolvitor, with expenses.