An act of Council in favour of the Provost of a burgh royal, bearing to proceed upon the report of a committee, found to be no sufficient constitution of a debt against the Town, there being no evidence upon record, that the committee did make the report narrated in the act, and the act appointing the committee being null, as not signed by the Preses.
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William King pursues the Magistrates of Elgin for payment of L. 2104, conform to an act of Council, dated the 22d of February 1702, mentioning, that the Council having considered the report of a committee appointed to consider the state of the Town's debts, and to prepare an allocation of the debts resting to the Town for payment of their creditors, they did ratify and approve the same, and found the Town debtor to the pursuer in the sum libelled, as a balance after deduction of a debt owing by him to the Town, and ordained certain debts owing to the Town to be disponed for payment of the pursuer's debt, and others mentioned in that act of Council.
The debts destinated for the pursuer's payment being otherwise applied, he now pursues for payment, and gives out in process the foresaid act of the Town Council, with the other act therein mentioned, appointing a committee to consider the state of the debts, and to report.
The defenders alleged, The acts libelled and given out were no sufficient instruction of a debt; 1mo, Because the extract of the act appointing the committee is null, not bearing to be subscribed by the Preses, much less by a Quorum of the Council. 2do, There is no vestige of a report made by the committee alleged to have been named further than what is related in the act libelled, which is very general, mentioning only that there was a report, by which such a balance was due after adjusting accounts of debit and credit, but no narration of the particulars of the debit and credit from which the balance did arise, nor is there any such report to be found upon record. 3tio, Neither is the act of the 22d February libelled, signed by a Quorum of the Council, but the extract bears only to be sighed by the Preses, which is not sufficient to but then the Town, seeing by the 29th act, Parliament 1693, there is a method laid down for preventing embezzlement of the common good, whereby it is provided, that no debt shall be contracted, nor bond granted, obliging successors in office without a previous act of the Town Council in their fullest convention, certifying the Magistrates and others who shall contract debts and grant bonds without a previous act, or if the causes condescended on be not found just and real, that the contracters and subscribers shall be found personally liable to relieve the Town. This act requires a previous act of Council for granting the security, and presupposes that the bond or obligation for the debt must be subscribed by the plurality, because the subscribers are liable to relieve the Town, whereas in this case, the Preses only subscribes, and there is no previous act in the terms of the act of Parliament.
It was answered, The pursuer opponed his act of Council, which liquidates and establishes the debt due to the pursuer, which was for debursements during his magistracy upon account of the Town, upon which he relied, and gave up the instructions of his debt depending upon the act of Council libelled, for his security and payment, and he is not answerable for the formalities objected. If need were, he could make appear, that the act in his favour is in the form and style of other acts of that Town Council, which were alway reckoned binding, and neither can he be obliged to instruct that the report of the committee was carefully kept or recorded; the trust of all that depends upon the Magistrates, and whom they have intrusted in framing their minutes and keeping their records, and the act of Parliament 1693, does only direct the caution that Magistrates are to use in contracting of debt, and the penalties in neglecting that caution, but with an express provision in the end of the act, without prejudice always of the right and security of the creditors.
It was replied, That the pursuer is no ways in the case of the act of Parliament for security of his debt, because that act does only concern the case of creditors contracting with the Magistrates by bonds or other contracts duely signed by a Quorum, of which subscribers and their heirs are liable to relieve the Town, if the method subscribed be not observed, and the provision without prejudice to the creditors, is only in the case of formal bonds presupposed to be subscribed by a Quorum as above; whereas the pursuer having no bond, but only an act of Council, and that act of Council depending upon a report of a committee not to be found, and that committee not duly authorised by an act so much as signed by the Preses, the same is no ways sufficient to instruct any debt; more especially considering, 1mo, That the power of the committee as mentioned in the extract of the act authorising &c. was only to state the Town's debts, but not to constitute unclear or illiquid claims, much less to discharge the pursuer of debts which he was due, as being compensed with his other claims, and so to state a balance. 2do, If the pursuer's accounts were considered, it would be found they were no ways debursed for the benefit of the common good, but upon his own private and personal account. 3tio, Whereas he alleges That he gave up his instructions; it is replied, Gratis dicsum, and if it were so, sibi imputet, for no reasonable man would part with the instructions of a debt, upon such a lame act.
The Lords found the acts of Council produced were not sufficient to instruct a debt against the Town.
Fol. Dic. v. 2. p. 249. Dalrymple, No 121. p. 168.
