Scottish Court of Session Decisions

Subject_1 PUBLIC POLICE.

Colonel Straiton
v.
The Burgh of Montrose

1743, Feb. 23.
Case No. No. 5.

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In this process upon the riot act, for some hundred bolls of meal taken from Colonel Straiton, two questions occurred. 1st, The libel did not conclude against the Burgh of Montrose in so many words, but against the Magistrates and their successors in office, as representing the Burgh. 2dly, Whether action lies by that act only for repairing the damage done to the house demolished or pulled down, or if there be also action for goods taken away? Upon the first question a doubt occurred, against whom execution could pass, whether against the Burgh as such, that is against their Magistrates, and their common good, or if the damages ought and must be recovered from the inhabitants, such as in England? President and Arniston were clear, that only the inhabitants are liable, (though no direction is given in the act how it could be levied, and I know no other instance in Scotland of money so levied.) I thought if that was the import of the act, then the Magistrates, as representing the Burgh, could not at all be decerned, but only the Burgh, leaving the pursuer to execute such decree the best he could, and that therefore the libel were in that case inept; but I was not clear that the Burgh and their common good was not liable. I did not vote in the first, but it carried for the defenders by the President's casting vote. 2dly, It carried, I believe by a great majority, that no action lay on this act for the meal, but only for repairing any damages done the house, which was not here claimed, and I was clear of that opinion. They also found no cause for finding the Magistrates tanquam singuli liable, and found expense due. 23d February, Altered the first part; adhered as to the second; adhered to the third, that the Magistrates were not liable; and found no proof of damages done the house. I did not vote in the first.