burgess to serve in Parliament; and, upon failure in any of these particulars, he, for every offence, forfeits L. 100 sterling, to any magistrate of the burgh to which the precept has not been timeously delivered, who shall sue for the same. The act 6th Anne, c. 6, sect. 5, requires that the precepts shall command the chief magistrates to order the commissioners to meet at the presiding burgh on the 30th day after the teste of the writ, or, if that be a Sunday, on the following day, for the purpose of choosing a burgess.

The chief magistrate, upon receipt of the precept, must in like manner indorse upon the back of it the day he received it, and must within two days summon the council, by giving personal notice, or notice at the dwelling place of every resident councillor 2. The chief magistrate, on failure in any of these particulars, incurs a penalty of L. 100 sterling 3. Although the magistrate must summon the council within two days after receiving the precept, it is not necessary that the meeting for fixing a day for choosing a commissioner shall be held within the two days. Two free days must elapse between this meeting and that for choosing the commissioner 5.

In a case from the Wigton district of burghs, where one of the delegates had resigned on the very day for electing the member, and the council of the burgh which that delegate represented had forthwith elected a new delegate, it was argued that the sheriff's precept had been exhausted by the election of the first delegate, and that the statutory requisites had not been complied with. The committee of the House

1 16th Geo. II. c. 11, sect. 40. For the form of the Precept, see App. No. 14.

2 Ib. sect. 41.

3 Ib. sect. 42.

Aitken v. Chalmers, 17th June 1797; Fac.Note from Session Papers of Lord President Campbell. The case does not seem to be within the 'clause founded on. A summons always implies some induciæ.'

5 16th Geo. II. c. 11, sect. 42.

of Commons resolved, that the candidate who had the majority of votes of the other delegates, was duly elected'.

At the meeting for appointing the day of election, the sheriff's precept is read, together with the chief magistrate's summons, and the execution of that summons; and the Council appoint a peremptory day for electing a commissioner, for choosing a burgess to serve in Parliament 2.

At the meeting for choosing the commissioner, the act 2d Geo. II. c. 24, against bribery, is read. The magistrates and councillors next qualify to government, by taking and subscribing the oath of allegiance, and subscribing the assurance, and by taking and subscribing the oath of abjuration, if required. Any of the magistrates, or, in their absence, any two of the councillors, must administer to the clerk the oath of bribery prescribed by 16th Geo. II. c. 11, sect. 353. Afterwards every elector must, if required by any other elector, take the oath required by the same act, sect. 341.

After the preliminary proceedings are finished, the magistrates and council give their votes for electing the commissioner. The votes are marked by the clerk, and the result is declared by the preses; after which the clerk is ordered to make out a commission for the person chosen commissioner,

1 Case of Wigton; Douglas, ii. p. 181; Wight, p. 375.

2 16th Geo. II. c. 11, sect. 41.

3 This oath is as follows:

'I A. B. do solemnly swear, that I have not, directly or indirectly, by way of loan or other device whatsoever, received any sum or sums of 'money, office, place, employment, gratuity, or reward, or any bond, bill, or note, or any promise of any sum or sums of money, office, place, employment, or gratuity whatsoever, either by myself or any other, to my ' use, or benefit, or advantage, to make out any commission for a commissioner for choosing a burgess; and that I will duly make out a com'mission to the commissioner who shall be chosen by the majority of the 'Town Council assembled, and to no other person. So help me God.' 4 See this oath supra, p. 391,

which must be signed by himself, and sealed with the common seal of the burgh 1.

If the common clerk of the burgh shall fail in these particulars, or if he shall make out and sign any commission for any other person not chosen by the majority, or shall affix the common seal thereto, he incurs, for every such offence, a penalty of L. 500 to the commissioner duly elected, and also shall suffer imprisonment for six months, and be disabled to hold the office of common clerk in future. The private party may, without the concourse of the Lord Advocate, insist for the fine by summary complaint in the Court of Session, but cannot insist for the sentence of imprisonment without that concourse 2.

If any person who is not the common clerk of the burgh, shall act as such at an election of a commissioner, and shall make out a commission to any other than the person chosen by the majority, and sign the same, or affix to it the common seal, he incurs the like fine of L. 500 to the person duly elected 3.

It is not requisite that the commissioner shall be a residenter, or trafficking merchant, within the burgh, or shall be in the possession of burgage-lands or houses holding of the burgh; and such qualifications need not be engrossed in his commission 1.

2. Of the Election of the Representative by the Delegates.

On the 30th day after the teste of the writ, or, if that be a Sunday, on the day following, the commissioners from the

16th Geo. II. c. 11, sect. 26. For the form of the Commission, see Appendix, No. XV.

2 Syme. Murray, 19th January 1810; Fac.

16th Geo. II. c. 11, sect. 27.

4 16th Geo. II. c. 11, sect. 29.

ELECTION OF MEMBER FOR A DISTRICT. 397

several burghs of the district assemble in the town-house of the presiding burgh. The different sheriff's precepts are then produced, and the bribery act of 2d Geo. II. is read; after which the commissioner from the presiding burgh administers the oaths to government to the common clerk of that burgh, who officiates as clerk to the meeting. This clerk then takes the oath prescribed by the act 16th Geo. II. c. 111, which is administered by the presiding commissioner. If he neglects or refuses this, he is disabled from acting as clerk, and the meeting must choose another.

The commissions of the several commissioners are now read; and any objections or protests respecting them ought to be entered in the minutes.

Such votes only can be allowed as are given by persons producing commissions regularly signed and sealed 3; but if any person to whom no commission has been made out, shall insist that he was duly elected commissioner, he must be admitted to the meeting, and allowed, on taking the requisite oaths, to declare for whom he would have voted, had he got a commission; and the clerk must insert in the minutes his declaration as to the person for whom he would have voted, but must not receive or consider his vote as legal. The office of the clerk is merely ministerial, and he must consider as legal the votes of all those producing com

1 Sect. 35. The form of the oath is as follows:

'I A. B. do solemnly swear, that I have not, directly or indirectly, by way of loan or other device whatsoever, received any sum or sums of money, office, place, employment, gratuity, or reward, or any bond, bill, or note, or any promise of any sum or sums of money, office, place, em'ployment, or gratuity whatsoever, either by myself, or any other to my ' use, or benefit, or advantage, to make any return at this election of a 'member to serve in Parliament; and that I will return to the sheriff or steward the person elected by the major part of the commissioners as'sembled, whose commissions are authenticated by the subscription of the common clerk and common seal of the respective boroughs of this dis'trict. So help me God.'

Ib. sect. 36.

3 Sect. 30.

4 Sect. 32.

missions, duly signed and sealed, without any power of determining that any other person had a better title to have obtained a commission.

The commissioners now take the oaths to government, and likewise the oath of bribery, introduced by 2d Geo. II. c. 24, if required by either of the candidates, or any two of the electors1. The commissioners then give their votes; the issue is declared; and the minutes are signed by the preses and clerk.

In case of equality of votes, it was provided by the act 1707, c. 8, that the presiding commissioner should have a casting vote, besides his own as commissioner; and that the commissioners from the different burghs should preside, in turns, in the order in which their boroughs were called in the roll of the Scottish Parliament. It was afterwards provided by the act 16th Geo. II. c. 11. sect. 28, that if the commissioner from the presiding borough should be absent, or refuse to vote, the commissioners from the borough which presided at the last election, should have the casting vote, and so backwards in rotation, till one present and willing to vote should be found. It was farther provided by the act 6th Anne, c. 6. sect. 5. that, in supplying a vacancy occurring during the sitting of Parliament, the borough which presided at the election of the former member, shall preside at the new election.

A question having afterwards occurred in practice, as to the effect of the voiding of an election of magistrates of a borough, on the rotation of boroughs, and having been the subject of a decision by a committee of the House of Commons, it was enacted by the statute 14th Geo. III. c. 81. sect. 2, conformably to that decision, that, at every election of a representative, when the election of magistrates of a borough, whose turn it was to preside at such election has been set aside, and not revived, the borough next in order

1 For the form of this oath, see supra, p. 280.