The Sun.
London, England, 1827-03-12 00:00:00

LAW INTELLIGENCE.-(TIIIS DAY.)

HOUSE OF LORDS—APPEALS.
GARDNER V. REEVE.
This was a petition presented by James Gardner and four
other- burgesses of the Burgh of Kilrenny, in Scotland, to the
Court of Session, praying their Lordships to find the election of
Magistrates and Council, which had been made at Michaelmas,
1823, to have been illegal, contrary to the set, laws, and consti-
tution of the said Burgh, and to set the same accordingly. This
was opposed by the respondents, James Reekie and other Magi-
strates of that Burgh. The Court having heard Counsel for the
parties, dismissed the complaint, with costs, from which decision
an appeal was made to the House of Lords.
Mr. Sergeant SPAN/CIE appeared this day on behalf of
the appellants. By the set of the Burgh of Kilrenny,
he observed, the Town Council consisted of fifteen per-
sons, viz. three Bailies, the Treasurer, and eleven Burgesses.
The custom of the town has been since its erection into a Royal
Burgh, to elect their Bailies by a vote of the whole burgesses.
The three Bailies are respectively designated as first, second, and
third Baillie. • The first Bailie fills the place of chief magistrate,
and his office corresponds to that of provost in other burghs. In
the words of the Set, which. bears date 1710, the election of
Bailies and Treasurer, proceeds in the following manner :—At
Michaelmas, the inhabitants are summoned by tuck of drum to the
Tolbooth to give their vote : when they convene, the Bailies who
are about to leave office, give in a leet of nine persons, whereof
they themselves are always three, out of which the Burgesses are
to choose the three Bailies for the ensuing year ; and the
Treasurer gives in a leet of three persons, whereof he him-
self is always one, out of which they are to elect their Treasurer
for the following year, which being done, those qualified give
their votes, and the plurality of votes determines the election.
In 1719 a change took place in this custom, on that occasion the
set, for Bailies as voted upon by the Burgesses, was composed of
three separate trios or columns, each two having at the head of it
the name of an old Bailie, followed by those of two other persons,
and the Electors voted for 'sortie one or other of the three persons
in each of these trios severally, so that in this way the BurgesSes
voted for a first Bailie out of that Magistrate's Leet ; and for a
second and third Bailie out of the Leets of those Magistrates re-
spectively. This has been the invariable custom of electing ,the
officers from 1719 until 1819, when an irregularity took place in
returning the three Bailies out of the two last Leets, and return=
ing none out of the first; subsequent to that time the irregularity
in deviating from this invariable usage, for a century,, was carried
further, inasmuch as the respondents did not send down to the
Burgesses three separate Leets for the offices of first, second, and
third Bailies, but threw the whole into one aggregate mass of nine
without any distinction or., subdivision whatsoever, whereby the
Burgesses were not permitted to elect and- name one individual
as their chief Magistrate or first Bailie ; a general return of three
individuals having been thus obtained from the Burgesses, the
Magistrates and Counsel fixed, according to some capricious rule
of their own, which of these three should act as Chief Magistrate,
&c. In 1823, the election took place in this manner, and Mr.
Gardner, one of the appellants, who had the plurality of votes,
instead of being made the first, was nominated the third Bailie,
he (Mr. Sergeant Spankie) contended, that the election was void,
for it was contrary to the usage practised in this Burgh for 100
years, and in Scotland, a prescription of even 40 years supersedes
a Set or Charter. It was also contrary to the Set or Charter of
the Burgh, which existed antecedent to the year 1719, for though
the usage then was to elect the 'three Bailies out of a Leet of
nine, yet they took precedence according to the plurality of votes;
in support of his arguments he cited the case of Barber v. Bolton,
Ist Strange, 314, where the Court held that a deviation from
the clatter and a bye-law rendered the proceedings of an election
void in the borough of Macclesfield; and the case of Tenant v.
Johnson, ,in " Morrison on Burghs ;" the other objection to the
validity of this election, was, that the Bribery Oath was not read
at the election as required by Statute 16 Geo. IT. The Learned
Sergeant contended, that the facts of a deviation from the usage
of the Burgh for 100 years, and from the Set as antecedent to
that period, and also the omission of administering the Bribery
Oath, which by the law is not optional but imperative, were suf-
ficient to vitiate the election.
Mr. KAY followed on the same side.
After which the SOLICITOR-GENERAL addressed the House on
behalf of the respondents.
The LORD CHANCELLOR said that he should inform the parties
to-morrow when he wonld give judgment.

VICE-CHANCELLOR'S COURT.
COHEN V. ALOOFE AND ANOTHER.

The bill in this case was filed for the specific performance of a
contract, and prayed that the defendants be in the meantime re-
strained, by the order of the Court, from prosecuting any pro-
ceeding in the Civil Courts of Gibraltar, for the purpose of eject-
ing the plaintiff from a house which he holds at that place, under
an agreement from a Mr. Cavallo.
It appeared that the plaintiff originally took the house in ques-
tion for the term of three years, at an annual rent of three hurl-

Bred pounds. It was subsequently agreed upon between the par-
ties that there should be an extension of this term for five years.
Shortly after this latter agreement, Mr. Cavallo disposed of his in-
terest in the premises for 6,0001. to the defendants, who are mer-
chants, residing in the City of London. The defendants, though
repeatedly applied to for the purpose, refused to confirm the agree-
ment entered into between him and the plaintiff, and are
at present about to institute a suit in the civil Court at Gibraltar,
for the purpose of getting possession of the premises. Among
other objections to the agreement they allege that they had not
due notice of it at the time they purchased Mr. Cavallo's interest
in the house, and that if they were aware of the terms on which
the plaintiff held it, they could not have given so large'a sum for
it, and finally, they urge that the agreement ought 'not to be en-
forced, inasmuch as the rent was by no means adequate to the
value of the house.
Mr. HEALD, for the plaintiff, was proceeding to argue, that
the defendants, whether they had received notice or not, were
bound by all the equities of the tenant, when
The VICE-CHANCELLOR enquired, whether the law of England
as regarded real property, prevailed at Gibraltar.
Mr. IlkALn could not give his Honour a decisive answer on the
subject ; he apprehended, however, that there could be no diffi-
culty in the way, as the parties whom it was sought to restrain
resided in England, and were therefore within the jurisdiction of
the Court.

The VICE-CHANCELLOR said be was unwilling to proceed fur-
ther without being satisfied on the point ; indeed, his own im-
pression was, that the law of Spain might very possibly govern
real property in Gibraltar. He would, however, refer it to the
Master to enquire whether the law of England prevailed there
with reference to real property.