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Walter Stuart, James Leviston, Sir Gilbert Elliot, and Others, v The Magistrates of Edinburgh. [1697] Mor 12536 (25 June 1697)
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[1697] Mor 12536
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[1697] Mor 12536
Subject_1 PROOF. Subject_2 DIVISION III.
Public Instrument, how far Probative.
Subject_3 SECT. IV.
Decrees, Acts of Court, &c.
Walter Stuart, James Leviston, Sir Gilbert Elliot, and Others, v. The Magistrates of Edinburgh
Date: 25 June 1697 Case No. No 422.
The assertion of a town-clerk in a decree, that fines had been applied to the town's use, found not probative against the town.
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Walter Stuart, James Leviston, Sir Gilbert Elliot, and sundry others, pursue the present Magistrates of Edinburgh, on this ground, that they were fined in 1683, and thereafter, for absence from the church, and attending conventicles, and other church irregularities; and now the 25th act 1695 ordains repayment of such fines; and the decreets produced by them bearing they had paid down their fines at the bar, and were applied to the Town's use, therefore craved the present Magistrates might refund them. Alleged, By the acts of Parliament in 1670 and 1672 against conventicles, the fines of heritors did not belong to the Judge but to the King, and most of them being landlords and heritors in the Town, such can never convene the Magistrates; and as for such as were fined and not heritors, the Magistrates who pronounced the sentence must be primo loco called and discust, and it must be proved the fines came to the Town's use. Answered, Heritors, in the acts, must only be understood of country heritors, and they are no more bound to insist against the Magistrates at that time, than if it were in a subsidiary action for a prisoner's escape, and the decreet sufficiently instructs the fines went to the Town's use.
The Lords thought the whole affair would be best understood if the former Magistrates were brought into the field, and therefore ordained them to be cited summarily and incidenter in this same process; but would not sustain the clerk's assertion in the decreet, that it was converted to the Town's use, to be probative per se, that not being actus officii wherein clerks are to be credited, else they might bind great debts upon the incorporation.
Fol. Dic. v. 2. p. 249. Fountainhall, v. 1. p. 780.
