Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER BRUCE, ADVOCATE.

Thomas Henderson, Writer in Edinburgh,
v.
The Magistrates of Jedburgh

Date: 3 February 1715

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A merchant in Jedburgh being apprehended there, at the instance of James Hamilton merchant in Dunbar, for L58 Scots, in anno 1679; and Robert Ainsly, then bailie, being charged to incarcerate him, did it accordingly, but thereafter set him at liberty : Upon which a subsidiary action being insisted in against Ainsly, and the then magistrates, there was a decreet obtained before the Lords in 1680, decerning also for L80 of expenses and damages ; which decreet is by progress now in the person of Thomas Henderson, Writer in Edinburgh, who now insists in a process against the present magistrates, for payment of the sums decerned for in that decreet. In which action,

It was for the defenders Alleged,—That the present magistrates were not cited, though the former were ; and since the action was not insisted in during their office, the citation was of no effect; First, As to them, because now they have no concern in the town, being functi: nor are the present magistrates obliged to answer, as not being called. And since they are the only administrators and proper defenders of the town's commonty, being in office, they ought to be cited before any process can be insisted in against the town.

Answered for the pursuer, That the Magistrates who were in office when the summons was raised, being duly cited, they who pursue corporations are not bound to renew their citations upon every change of the Magistrates or governors : for the citation is against the community, and only against the Magistrates for the time, as representing such communities.

The Lords reponed the Magistrates to their defences, and turned the decreet to a libel.

Act. M. Lumsden. Alt. W. Scot. Sir James Justice, Clerk.

Vol. I. page 67.