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David Peacock and Alexander Gordon v The Town of Edinburgh. [1684] 3 Brn 498 (14 February 1684)
URL: http://www.bailii.org/scot/cases/ScotCS/1684/Brn030498-0753.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
David Peacock and Alexander Gordon v. The Town of Edinburgh
Date: 14 February 1684
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The action pursued by David Peacock in Vidavia, and Alexander Gordon, bailie in Aberdeen, his assignee, against the Town of Edinburgh, being called in præsentia; Alleged,—This debt had all the qualifications requisite to a public debt, and so was discharged by the 26th Act Parl. 1681; for it was contracted in 1640, when General Ruthven keeped out the Castle against the covenanting Lords, for the King, and had a general warrant in the Acts 33 and 34 Parl. 1640, anent the Committees of Estates borrowing money for carrying on that cause.; and that the Act of the Town Council of Edinburgh, which is the warrant of this bond, mentions that it was to help to levy 500 men. Answered,—The Act of the Town Council, being the debtor's own deed, cannot annul his bond; and the very Act bears, that they got an assignation upon the contribution of the tenth penny and the excise, for their relief.
Replied,—The bond relates to the Act, and without an Act would be null; and so is just alike as if the Act had been engrossed in the body of the bond; and the registers of a Town unvitiated are probative both pro and con; and that assignation for relief was never effectual, the contribution being but a voluntary thing; and the Estates giving that assignation is a sufficient argument that they acknowledged this for a public debt, and so the Estates undertook it animo se obligandi; and the definition of an obligation agrees here, that it is vinculum juris quo necessitate astringimur, &c.
The Lords declined to decide this; and named some of their number to endeavour to settle the parties; and accordingly the Good Town got down 4000 merks of the whole claim, and gave security for 6000 merks; and the decreet went forth in these terms, for their warrant.
