Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Sir Gilbert Elliot, James Leviston, and Others, Burgesses of Edinburgh, v. The Magistrates of Edinburh
Date: 3 November 1698
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Sir Gilbert Elliot, James Leviston, and many other Burgesses of Edinburgh, who were fined, in 1683 and other times, for absenting from the church, baptizing their children with Presbyterian ministers, and other church-irregularities, pursue the present Magistrates of Edinburgh for repetition of these fines on the act rescissory in 1690. For proving their payment, some of them produced decreets under Alexander Gay, then clerk-depute, his hands, bearing their absolvitor, in regard they had paid in their fines at the bar rather than go to prison or be denounced. Others had discharges from John Trotter, the Town's collector. It was objected against the first instruction, That it could not prove the Town received these sums, seeing the assertion of a clerk can bind no debt on them without an act of their own, by their set and decreet-arbitral, and, at most, could only reach Gay and the Town's procurator-fiscal, unless they instructed they were in rem versum to the Town's use. Against the second it was objected,—Trotter had only a limited commission to uplift the imposition on ale, &c. or some other branches of the Town's revenue and common good, but no warrant to lift thir fines: unless they produce his special commission, or prove he has counted to the Town, or delivered them in to their treasurer, his receipt can never exoner them, especially seeing he died considerably in the Town's debt.
Answered,—They bona fide paid; and the Town may seek their relief from those persons whom they trusted, or their representatives.
There was a question moved by some of the Lords, If it was not more just that the Magistrates then in office, when thir fines were exacted, should be liable to refund, or instruct what came of them, if applied to the Town's use or not, rather than the Town and present Magistracy, who were innocent of the matter? But it occurred that James Fleming, then Provost, and the other Magistrates then with him, were cited incidenter by a diligence in this process; yet they were not heard on their special defences: Therefore the Lords allowed them a diet to be heard. It made it favourable, on the pursuers' part, that most of them who were able offered to mortify their fines to an hospital, or someother pious use.
