Scottish Court of Session Decisions

Subject_1 JURISDICTION.
Subject_2 DIVISION IV.

Jurisdiction of the Court of Session.
Subject_3 SECT. I.

To what Causes this Jurisdiction extends.

Ainsley, and Others,
v.
Provost Scot, and Others

Date: 8 July 1707
Case No. No 67.

The Lords found themselves competent judges in a process at the instance of burgesses against Magistrates of a burgh for malversation; though the act 28th Parl. 1693, appoints, in such cases, a special commission to be named by the King.

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Ainsley of Blackhill, and others, burgesses of the town of Jedburgh, contra Provost Scot, and others, the present Magistrates of that burgh, to make count and reckoning of their management, administration, and disposal of the town's common-good; and to Hear and see it found and declared, that they have malversed, mismanaged, and contracted great debts unnecessarily; whereby they had incurred these two certifications by the 28th act of Parliament 1693; 1mo, Of relieving and disburdening the town of these debts, and paying them out of their own proper estates; 2do, Of deprivation and removal from their offices, they having enhanced the magistracy into the hands of a few particular persons, who transmitting it from one to another, make it a circular magistracy, and so debar more worthy and deserving citizens, who, as the reward of their pains and industry, may expect to bear office in their burgh by turns. Alleged for the defenders, That by the foresaid act 28. 1693, there is a special commission to be named by the King to take trial of the malversations and embezzlements of the common-good of the royal burghs, and therefore the Lords are not com-petent judges thereto; which they do not propone as doubting the Lords, or fearing their doing justice, but only to redeem themselves from a vexatious groundless, and calumnious plea; that the malversation of Magistrates did of old belong to a particular officer of the crown, called the chamberlain, as appears by the iter camerarii in the books of Regiam Majestatem; but that falling into desuetude about King James Vth's reign, when Sir George Forrester of Corstorphin had the office, then it devolved on the Lords of Treasury and Exchequer; and they neglecting it, a special commission was designed for that particular affair, in regard the burghs were generally decaying for want of trade; and therefore they desired to be relieved of this emulous and invidious process, calculated for no other design but to bring in a faction into the government of the town, who were not well affected to the present establishment both in church and state. Answered, Whatever might have been pleaded, if such a commission had taken place and been named, yet never having been prosecuted, the Lords are undoubtedly judges competent to such a trial and cognition; and esto it had been named, or that the Exchequer may meddle in such cases, yet it may very well be doubted if any of their powers be more than cumulative, and not privative and exclusive of the Session's jurisdiction, unless they were expressly debarred. The Lords found themselves judges competent to all such processes. Then the pursuers insisted on a particular condescence of their malversations, that, in 1693, the town's debt was only 14,000 merks, and they had swelled it to the double, viz. 28,000 merks, notwithstanding they had a common-good sufficient to have paid the annualrents of the debt, and defrayed all their incident charges besides. Answered, This pursuit, though it be actio popularis, yet non ompetit cuivis, but only to such as have borne office before in the magistracy, which some of these pursuers had not, and so no process can be sustained at their instance, 2do, Esto the debt be now greater than it was in 1693, yet they can rationally exculpate themselves by a great many emergent burdens the town has fallen under since that time, as an augmentation of their quota and proportion of the tax-roll, laid on by the convention of burghs; item, Their missive dues, the expenses in a debateable election, the reparation of Ancram bridge, and many other incidents, which has drawn them into so much debt Answered, This can never palliate their smuggling-trade of preying upon the town's common-good; for they offer to prove, beside their constant revenue, they had their mills and ladle-custom to defray all these extraordinaries; and though the present Magistrates brag they have not enriched themselves thereby; yet it is all one, if by drinking, squandering, or negligence, they have drawn the town into unnecessary debts; for, by the title D. De administrat. rer. ad civitat. pertinen. it is evident Magistrates are liable not only pro dolo et lata culpa, but likewise pro leve, et negligentia; and the common-good of burghs coming from the crown, they are, by sundry acts of Parliament, to make yearly count how they have employed the same, as appears by act 36. 1491, and act 26. 1535. The Lords thought the point of general concern to all the royal burghs of Scotland; and therefore named some of their number to examine the accounts, and endeavour to settle the two contrary struggling factions in this burgh.

Fol. Dic. v. 1. p. 496. Fountainhall, v. 2. p. 379.