ever they (the minority) vote for, it is the fame as if that perfon had no vote at all. Suppofe twenty feven of the perfons electing had voted for Bigg, and one only for Taylor; it would be abfurd to say, that Taylor was elected by a majority. And where the charter directs that the election fhall be by a majority, it ought to be conftrued fecundum intentionem, & non in deceptionem regis. Lloyd, &c. è contra. That as Bigg was not qualified, and the electors had notice of it, it was the fame as if the perfons who voted for him, had not voted at all; and consequently were virtually consenting to the election of Taylor. And fo it was adjudged in the case of the King and Withers, Hil. 8 Geo. II. By the ufage and custom of the corporation, upon every vacancy the mayor was to nominate two, and he and the burgeffes affembled to choofe one of them. Withers and another were nominated, and Withers had five votes. There were only eleven burgeffes prefent, and the other fix refufed to vote at all; and thereupon Withers was fworn into the office. An information in nature of a quo warrauto being moved for, was denied; because the fix who refused to vote, were virtually confenting to the election of Withers. And the Court held that he was duly elected. The like point was determined in the cafe of the King and Hugh Bofcawen, Pafc. 13 Ann, Where Bofcawen and one Roberts had each ten votes, at the election of a burgefs for the corporation of Truro. But Bofcawen not being an inhabitant, according to the charter, Parker, Chief Juftice, held that the votes that were given for him were thrown away, and the other duly elected. Page, Page, Chappel, and Wright, Justices, agreed with the Chief Juftice, that this was a right verdict. For as the fourteen electors who voted for Bigg, had notice that he was not qualified, their votes were thrown away. And fuppofe they had voted negatively, that Taylor fhould not be elected, yet his election by the other thirteen had been good, for they cannot vote a negative: And when they do vote for a perfon not qualified, it is the fame thing as if they had given no vote at all; and in that cafe it is not difputed, but filence would have been a conftructive confent. New trial denied." From another note which I have feen of this cafe, it appears that Bofcawen's cafe was cited to the court from a note of Mr. Wearg's. XXI. THE CASE OF THE COUNTY OF ELGIN AND FORRES. The Committee was chosen on tuesday, april 5, 1785, and confifted of the following Members: Right Hon. Frederick Montagu, Chairman, Sir Wm, Cunninghame, Bart. Sir Edward Aftley, Bart, Nominees. Sir William Lemon, Bart. Petitioners. Alexander Penrofe Cumming, of Altyre, Efq; and certain Freeholders in his interest. Sitting Member. Rt. Hon. James Earl Fife, of the kingdom of Ireland. Counsel. For the Petitioners, Hon. Mr. Erfkine, and Mr, McIntosh. For the Sitting Member, Mr. Wight, and Mr. Douglas; and, in the absence of either, Mr. Grant. THE HE petitions complained" that the votes TH of perfons not properly qualified, by fuch real freehold eftates as the law requires, were improperly received by the Prefes of the election meeting, in favour of the fitting member, and to the prejudice of the petitioner Mr. Cumming, who had the legal majority of votes, and ought to have been returned *." At the election, there were twenty four votes on the poll for the fitting member, and eight for the petitioner. But his counsel now proposed to ftrike off nineteen of Lord Fife's votes, as unqualified, and having only nominal, or fictitious freeholds, and no legal right to vote. Hence arofe the only queftion in the cause. In order to understand the cafe, it is neceffary to confider the law of Scotland relating to elections, and the nature of freehold tenures in that part of the kingdom. The representation of counties, in the parliament of Scotland, was not regularly established till the year 1587; although it had been directed by a statute more than 150 years before. By the act 1587, ch. 114. the freeholders of every county and stewartry, (or as they were called in Scotland, the small barons, in contradiftinction * 40 Journ. 464, to to the peers) were required to elect commiffioners or representatives; and the right of election was limited to thofe, who poffeffed forty fhilling lands of free tenantry holden of the King, and who refided in the county. The appearance of these commiffioners in parliament, was declared to be a fufficient excufe for the abfence of all the reft of the small barons and freeholders: And their conftituents were bound to defray their expences. By an act of 1661. ch. 35. it was provided, that all heritors, liferenters, and wadfetters, holding of the King, and whose yearly rent amounted to ten chalders of victual, or 1000l. Scots, (all feu-duties being deducted) should likewise have a right to elect, and be elected commiffioners. This was afterwards altered by the act 1681. ch. 21. which prefcribed the qualifications and manner of election, that have continued, with fome small amendments, to this day. This ftatute limits the right to those only, who are ' publickly infeft in property, or fuperiority *, and in poffeffion of a forty fhilling land of old extent, holden of the King or Prince; diftinct from the feu-duties in feu-lands:" or in lands of 400 pounds of valued rent. The act also directs the freeholders qualified to vote, to meet and make up a roll of the names of all who are * See in 2 Doug, elect. 359. a description of a fuperiority. fa |