Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by Alexander Tait, Clerk Of Session, One Of The Reporters For The Faculty.
Subject_2 LYON-COURT.

Reid
v.
Gray

Date: 13 February 1771

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By the charters of erection of the Town and territory of Kilmarnock into a burgh of barony, it is appointed that the Town Council present a leet of five of their own number to the baron at Michaelmas yearly, out of which the baron elects two bailies, and returns them to the Council; and, if the baron does not do this within a time certain, then they are chosen by the Council.

This being the set of Kilmarnock, a doubt arose how far the bailies were entitled to judge in any cause where the debt or damage exceeded forty shillings. In terms of the jurisdiction Act, and the point being stated in a cause before Lord Auchinleck, Ordinary, his Lordship found, “That the corporation or community of the burgh of Kilmarnock is independent of the baron ; and, therefore, in a suspension of a decree of the bailies, he repelled the reasons of suspension.” And, on advising a reclaiming petition with answers, the Lords adhered.

By the Jurisdiction Act, all jurisdiction is saved to burghs of barony which are independent of the baron. In the case of Kilmarnock, by grants from the family of Kilmarnock at that time, (15th November 1700,) the baron or over-lord power had been given the bailies to hold courts within the Town, and to determine in all actions, civil and criminal, as freely as any other burgh in the kingdom. And although the family reserved a power, as already said, of naming two bailies out of a leet presented by the Council, this did not make the jurisdiction dependent on the baron, or bring it under the general clause in the Act, and out of the exception ; the rather that, in case of the family's failing to name the bailies, the Council had power to do so without them.

In the case of the Royal Burgh of Wick, where the nomination of the Provost was in the family of Sinclair of Ulbster, it was never imagined that this had any effect upon the jurisdiction of the burgh.