Whether Magistrates are liberated by expiry of their office.
L Drumlanrig v. Bailies of Hawick
Date: 15 January 1624 Case No. No 13.
Magistrates of a burgh against whom a decree is taken as representing the town, cease to be liable after expiring of their office, but diligence may be followed forth against the succeeding magistrates, the same way as if the decree had been taken personally against them.
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The Laird of Drumlanrig having obtained decreet before the Secret Council against the Bailies of Hawick, then being in office, and the clerk, decerning them as having no right by virtue of their infeftment, to impose any taxes upon their neighbours by their acts of court, to desist from doing of the same in time coming; and that decreet being transferred in the Laird Drumlanrig's person, as succeeding to his right, who recovered the sentence; charges the Bailies, against whom the decreet was first given, after the expiring of their office, and after that new Bailies were placed, and their clerk, to obey the decreet, which was suspended. In the discussing of the which suspension, The Lords found, that the said decreet of Secret Council might have execution, seeing the same was transferred as said is, by letters of horning and summary charges, without any other transferring, or longer process against the Bailies, and next succeeding magistrates, or any others bearing office before them, they being an university, and the first sentence being given against the defenders therein as Bailies; for albeit their office ceased by the new yearly election, whereby they could not be further charged as representing the body of the town, yet it was not reason that the execution and force of their sentence should be frustrated; but the Lords found the succeeding magistrates stand subject to obey the same, and that the said sentence ought also to have execution against the same persons against whom it was first given or transferred, ad hunc effectum, viz. to cause themselves desist and obey the sentence, but not to take the burden for the body of the town; and also found, that the clerk was not a member; to be repute of the council, or as a magistrate, against whom any charges could be execute upon such decreets given against the magistrates; and therefore suspended the letters and charges executed against him; and in respect the said decreet was given by the Lords of Secret Council against the party then compearing; the Lords of Session would not discuss the nullity, alleged against the same by way of suspension, viz. that it was given by the Lords Secret Council, who were not judges competent thereto. See Summar Diligence.
Clerk, Scott.
Fol. Dic. v. 1. p. 157. Durie, p. 97.
