Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.
Date: 12 July 1687

John Hamilton of Farm
v.
The Town of Hamilton.

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John Hamilton of Farm pursues the Town-Council of Hamilton on this ground, That Archibald Williamson, merchant in Edinburgh, had, in a subsidiary action, got a decreet against him for the escape of Mr John Bailie of Carfin out of their Tolbooth, though it was by no deed of his, but by James Hamilton his conjunct bailie, as appeared by the depositions of the witnesses: and therefore he convened the Town-Council of Hamilton to pay the debt, and to relieve him, for their electing the said James, who was a known bankrupt at that time, super hoc medio, that, they being vested with a power of delegation, they must be answerable for their deputes, and their delinquencies, by the 6th Act Parl. 1424, and l. 11, 12. et seq. D. ad Municipalem. And Perezius, ad tit. C. De Periculo Nominatorum, et quo quisque ordine conveniatur, shows that magistrates of cities, naming their successors, ex eâ creatione tenentur, si nominent inidoneos successores; even as they were liable; et litem suam faciebant, if they accepted insufficient tutors or cautioners; tit. Dig. de Magistrat. Conven. And if the representatives of a Town be discussed for a debt, and are unable, then the burgesses become liable.

Answered,—This was a novelty, et noxa caput sequitur, et pæna suos tantum auctores tenet; and the Council are fundi officio after election; and the relief never extended further than against that colleague who malversed.

The Lords were straitened (though the action was just;) and therefore, on Castlehill's report, they refused to sustain process against the Town-Council super eo medio as electors, from whom the bailies derived all their power.

Vol. I. Page 465.