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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> May v Hill [1835] CA 13_849 (2 June 1835)
URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0849.html
Cite as: [1835] CA 13_849

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SCOTTISH_Shaw_Court_of_Session

Page: 849↓

May

v.

Hill
No. 260.

Court of Session

1st Division D

June 2 1835

Ld. Corehouse, Lord President, Lord Balgray, Lord Gillies

John May,     Advocator.— D. F. Hope— H. J. Robertson. Laurence Hill,     Respondent.— Rutherfurd— Penney.

Subject_Jurisdiction—Burgh.—

1. A party was fined by the act of a town council, ex facie regular, for refusing to serve the office of bailie, and the act was libelled upon in an action for the fine in the Burgh Court—held, that the Burgh Court was entitled to interpone its authority and decern for the fine, and to refuse to open up the act for discussion on its merits.—2. Circumstances in which the plea of interest, as disqualifying the magistrates, was repelled.

Laurence Hill, collector of the Merchants' House of Glasgow, raised a summons before the Burgh Court of Glasgow, setting forth, That, on 18th October, 1831, the magistrates and council, in respect that John May, merchant, had refused to accept of the office of bailie to which he was elected, though warned that, in the event of refusal, he should be fined, “in terms of the set and constitution of the burgh,”— “Therefore the magistrates and council, by act of council and decreet, of date the said 18th day of October, 1831, fined and amerciated the said John May in the sum of £80 sterling, and disqualified him accordingly, and decerned and ordained him to make payment of the said sum to the pursuer, collector of the Merehants' House of Glasgow, and his successors in office, for behoof of the poor of the said Merchants' House; and ordained the said collector, within three months after an extract of said sentence for the said fine should be put into his hands, to produce a certificate, under the hand of the Dean of Guild for the time being, of his having accounted for the said fine to the said house, other wise the said collector was ordained to pay the said fine to the city treasurer, for the use of the burgh, with one-fifth part further for neglecting to levy the same, in terms of the said set and constitution, and declared the said office of second merchant bailie vacant, and decerned accordingly, as the said act of council and decreet, of which an extract is herewith produced, more fully bear.” An extract of the act of council was produced with the summons, and the pursuer craved decree and sentence, “conform to the foresaid act of council, for the said sum.”

May pleaded in defence—1. That the Court had no jurisdiction; 2. That if it had, the fine was illegally imposed, as he had never been duly elected to the office of bailie; and 3. That the magistrates had no power to impose or levy the fine.

The magistrates, in pronouncing an order for papers, added this note to their interlocutor:—“It seems necessary to have a closed record before pronouncing judgment; although in this Court, the question in the present case appears to turn more upon the point of competency than upon the point of relevancy. It appears to this Court, that letters of horning might have been competently applied for, and issued upon the extracted decree of the town council of Glasgow, fining as they were authorized to do, one of their members for not accepting the office of a magistrate to which they had elected him. And although, perhaps, it may be competent for this Court to give a decree conform to the decree of the town council, such as to authorize an act of warding, as well, as other legal diligence, it is obviously incompetent for this, or any other inferior Court, to set aside or open up, for discussion on the merits, such an extracted decree. There does not appear to be much relevancy in the defender's statements in point of fact. But all discussion of the relevancy of these statements appears to be precluded in this Court, by its incompetency to open up or enter into the discussion of the extracted decree founded on in the libel.” The record being closed, the magistrates “found it not competent for this Court to set aside, or open up for discussion on the merits, the extracted decree founded on in the libel: But interponed the authority of this Court to the said decree, and decerned conform thereto; reserving to the defender any remedy competent to him in the competent court.”

May brought an advocation, and the Lord Ordinary ordered Cases.

Pleaded by May 1. The act of council had been dealt with in the inferior court us if it were the decree of a court, and the Burgh Court had merely pronounced a decree conform. But it was incompetent for one inferior court to interpone its authority to the decree of another inferior court, and none but the Supreme Court could pronounce decree conform. 1 In some cases, by statute, an inferior court might interpone its authority to an assessment, without being entitled to review the grounds of the assessment,—as where a kirk-session assessed for the poor, and the sheriff interponed his authority. In other cases, as reductions were not competent in inferior courts, it happened, that when a bond or bill was the ground of action before them, it was only objections receivable, ope exceptionis, to which they could listen; but there was no statute to sanction the Burgh Court in this instance, and they had shut out all discussion on the merits whatever. 2. If the act of council was not a decree, but merely a ground of action, the advocator should have been allowed to discuss it on its merits, in which case, he was ready to have proved that it was ultra vires of the town council to impose the fine of £80, and that if, was not warranted by the set and constitution, or by the practice of the burgh. 3. The magistrates had an interest in the suit, both as being members of the body which imposed the fine, and because it was leviable against the collector of the Merchants' House himself for behoof of the burgh, unless he recovered it within three months of its being imposed, and that event had, in this instance, occurred. 2

Pleaded by Hill—1. A town council is not a court, and the act of the council is not a decree. It is the act of the corporation, imposing a fine; and, in any competent enquiry into the merits of the act, it would be shown to be imposed according to the set and usage of the corporation. Though erroneously called a decree by the magistrates, yet, as it was not a decree, there was no foundation, in fact, for the alleged incompetency of one inferior court interponing its authority to the decree of another. There were many analogous cases in which an inferior court might be called on to interpone its authority for enforcing an obligation, the constitution of which it could not review on the merits. So, if any objections were stated against a decreet-arbitral, or a bond or bill founded on, which were of a kind requiring reduction to be raised, or if the assessment for the poor imposed by a kirk-session, were libelled on before the sheriff, 3 decree must be pronounced without any enquiry into the validity of the objections, or the legality of the assessment. 2. It was incompetent, in the Burgh Court, to open up the act of council upon its merits. Being, ex facie, the regular act of the council, the Burgh Court, which was composed of a portion of the council, could not enquire whether the

_________________ Footnote _________________

1 Edington's, Dec. 5, 1829 (ante, VIII. 185); 2 Bankt. p. 487; Adamson, July 21, 1631 (7484); 4 Erek. 3, 9.

2 Panton, Nov. 21, 1823 (ante, II. 911, and 448, new ed.)

3 Calder, June 8, l833(ante. XI. 694).
council had acted ultra vires or not. Such enquiry was only competent under a suspension or reduction in the Supreme Court. 1 3. The magistrates had no interest. The respondent was levying the fine for behoof of the poor; but, even if applicable to the use of the burgh, that did not disqualify the Burgh Court. 2

The Lord Ordinary “remitted the cause simpliciter to the magistrates, and decerned; and found the advocator liable in expenses, both in this and the inferior court.” *

May reclaimed.

Lord President.—It is true that there is a verbal inaccuracy in the proceedings of the Town Council and the Burgh Court. The Town Council not only pass the act of council, but use the word “decern,” as if they were a court of law, which they are not. And the Burgh Court also erroneously describes the act of council as a “decree,” which it is not. But as the act of council, imposing a fine for refusing to bear office as a magistrate, was ex facie regular, I think the Burgh

_________________ Footnote _________________

1 Hill, Jan. 13, 1780 (1995); Duncan, July 21, 1786 (2003).

2 Mackintosh, Jan. 16, 1828 (ante, VI. 358); Harvie, Nov. 17, 1826 (ante, V. 14); Napier, Nov. 24, 1821 (ante, I. 176, or 157, new ed.)

* “ Note.—At first sight it may appear inconsistent that a court should be competent to pronounce a decree in a cause, the merits of which it is not competent to try, but this is explained by the circumstance, that in such cases the decree is, in effect, only a step of diligence to enforce execution. It becomes necessary when horning cannot proceed on the original sentence; for example, the decrees of the justices of peace in a certain description of causes, those of baron-bailies of dependent baronies, and the decrees of arbiters, when the submission does not contain a clause of registration.

“The only difficulty in the present instance is, that the town council of a royal burgh is not a court of law, for it has no judicial power whatever; and, correctly speaking, its orders are not judgments or decrees; from which it may be argued, that the court entitled to enforce them is entitled to try if they have been pronounced according to law. But that consequence does not follow, as appears from the decision in the case of Calder, referred to by the respondent, for the kirk-session and heritors of a country parish, in the administration of the poor laws, have no judicial function, any more than the town council of a burgh in imposing a stent on the inhabitants, or inflicting a fine on one of its members for refusing to accept an office. They are both public bodies, exercising powers conferred by statute or usage, and are in every respect in pari casu. The proper mode of redress by those aggrieved is by suspension or reduction in this Court, and no instance is cited in which any other proceeding has been resorted to. It would be a strange anomaly if the Burgh Court could review the order of the Town Council, being themselves necessarily a constituent part of the Town Council.

“The advocator's declinature of the Burgh Court, on the ground of interest, seems entirely unfounded.

“The Lord Ordinary entertains doubts of an opinion in the note subjoined to the interlocutor under review, that horning could have been raised directly on the order of the Town Council; at least the statute 1593, which authorizes that diligence on the decrees of the Burgh Court, does not expressly extend to them, but that point does not affect the present question.”
Court were entitled to interpone their authority for levying the fine, and that this is not prevented by an erroneous name or description having been applied to the act of council. I am also of opinion that the Burgh Court could not review the act of council on its merits, and that the judgment which they pronounced was in all its substance well founded. The Town Council imposed a fine—the Burgh Court interponed their authority by decree in order that the amount might be levied—and the advocator has hitherto failed to bring the act of council under the review of this Court either by suspension or reduction.

Lord Balgray.—I think an action to enforce payment of the fine could have been brought before the Sheriff as judge ordinary, and it was equally competent in the Burgh Court.

Lord Gillies.—The onus lies on the advocator to establish the incompetency of the Burgh Court, and I think he has failed to do so. I am for adhering. Loud Mackenzie concurred.

The Court accordingly adhered.

Solicitors: R. Welsh, S.S.C.— Hopkirk & Imlach, W.S.—Agents.

 SS 13 SS 849 1835

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URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0849.html