An act of council, in which the magistrates owned themselves debtors, not subscribed by them but by the clerk, found obligatory.
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In an action pursued at the instance of the Relict of umquhile Mr Alexander Peebles, as executor to him, against the Provost, Bailies, and Council of Perth, for payment of a sum of money addebted by him to the said Mr Alexander, conform to an act subscribed by the Town Clerk, bearing them to be resting owing the said sum, as borrowed from the said Mr Alexander, and which they obliged them to pay to the said Mr Alexander at the term therein contained; this act being quarrelled, because it was not subscribed by the Provost and Bailies and Council, but only by the Town clerk, which ought to work no further than if it had been subscribed by a Notary, and so was not sufficient to produce action against them for payment of the sum of L. 400 libelled; likeas, the party alleged, That the Lords had found, that the like acts made by the Clerks, subscribed by them, whereby other persons were acted to pay sums to their creditors, were not obligatory against the parties acted without their own subscription: This allegeance was repelled, and the act was found sufficient, albeit not subscribed by the Magistrates and Council of the town, who were parties obliged, but only by their Clerk, seeing it was an act judicially done, and registrated in their court-books, and that the pursuer offered to prove, that at the time of the making of this act, the Magistrates and Council of Perth were in use to act themselves after this manner, and to grant obligations to diverse parties, by acts only subscribed by their Town Clerk, as this act was, and not to oblige themselves by their own subscriptions, and that these acts so made have taken effect and been satisfied by them, it being their custom to bind themselves after that manner at that time; which reply the Lords found relevant to maintain this act and pursuit libelled founded thereon; neither were the Lords moved with the alleged practices, whereby acts made and subscribed by the Town Clerk, wherein other debtors were obliged to their creditors, were found null, as not being subscribed by the persons thereby obliged, because there was difference in obligations made by one party to another, in which deeds the Clerk could have no other respect than as due to another common Notary, whose subscription could not bind the debtor, whereas the case is otherwise when the Town bind themselves to a party, and where the Clerk in these cases is their public officer and their servant, and where they were in use to bind themselves effectually to others after that same manner.
Act. ——.Alt. Chaip.
Fol. Dic. v. 2. p. 249. Durie, p. 253.
