Scottish Court of Session Decisions

Fotheringham, Ballingall, Nairn, and Tod, burgesses and municipal electors of the burgh of Newburgh (Nairn being also a councillor), presented a petition and complaint against Williamson, town-clerk of Newburgh, stating that at two several meetings for the election of a town-councillor on 11th and 14th November, 1837, Ballingall's vote had been refused to be taken by the acting chief magistrate and the town-clerk, whereby Fotheringham had lost his election as town-councillor; that the complainers intended raising actions against these parties to have the proceedings reduced, and for penalties under the municipal reform act, in order to which it was necessary to have access to the minutes of the town-council; that Tod, for himself and the other complainers, had accordingly applied to Williamson, as town-clerk and custodier of the council records, for extracts of the minutes to be used for this purpose, which request had not been complied with. The petition then prayed to have Williamson ordained to furnish the extracts in question on payment of the dues, or to have a commissioner appointed with power to give the complainers access to the minutes, in so far as may be necessary for enabling them to raise the actions above mentioned, and to find Williamson liable in the expenses of the present application.

It appeared from certain correspondence quoted in the answers for Williamson, that the originally avowed purpose of Tod's application for the minutes, was to enable a private party, whose agent he was, to prepare defences to an action of damages, raised at the instance of another party in Newburgh, although an intimation of the proposed actions of reduction and for penalties was subsequently made to the town-clerk; and it also appeared that the town-council had directed the clerk to give out no extracts, unless ordered by the Supreme Court. In these circumstances, Williamson contended that he was not bound to furnish extracts of the burgh minutes for purposes not burgal, and having no reference to the affairs of the burgh, and that without any judicial authority, while admitting that there might be and had been cases in which it was plainly the duty of a town-clerk to, give out extracts to parties having a fair and bona fide interest to ask them; and farther, that the present proceeding was unnecessary, as the minutes might be got at by a diligence in ordinary course in the action of reduction.

The case being put out for advising,

The Solicitor-General, for the complainers, contended that they were entitled, in their own right as burgesses, to have the extracts in question, referring to the action of reduction, which was now in Court, to show their interest; and that they were not bound to wait till they got at the minutes under legal proceedings. ¹

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¹ Gardner v. Magistrates of Kilrenny, Dec. 11, 1823, ante, II. 570 (new ed. 492); Tod v. Conolly, June 17, 1824, ante, III. 152 (new ed. 103); Spence v. Magistrates of Linlithgow, July 6, 1830, ante, VIII. 1015.