Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 JURISDICTION.
Subject_3 Jurisdiction, Act 20th Geo. II., c. 43. Burgh of Barony of Kilmarnock, If independent of the Baron?

David Gray
v.
Robert Reid

Date: 13 June 1771

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[Fac. Coll. V. 266; Diet. 7685.]

Monboddo. As to the jurisdiction of a burgh, it matters not who is the superior, providing the jurisdiction is independent.

Kaimes. I am of the same opinion, and am glad to be so, as it is of great moment that large societies of men have the means of action within the place of their residence.

President. At first I doubted, because of the words of a statute, which I greatly esteem. The words of the statute are strong, but I think they relate not to this case. If the superior does not name magistrates, the community has the power of naming; so that there seems an inherent jurisdiction in the community. Such is the case in the Burgh of Wick, and such, in part, in the Burgh of Aberbrothock. There is a difference between the interference of a baron and a right created in favour of a baron.

Justice-Clerk. The baron cannot recal the exercise of the jurisdiction, or change the bailies named. The statute relates to a jurisdiction momentually in the baron, and revocable every hour, whereby the exercise of the jurisdiction and the existence of the judge depended on the baron's pleasure. It was this unlimited and arbitrary power which the statute wisely abolished.

On the 13th June 1771, the Lords found that the community of the burgh of barony of Kilmarnock, and the jurisdiction belonging to the magistrates thereof, is “independent of the baron, and therefore repelled the reasons of suspension;” adhering to Lord Auchinleck's interlocutor.

Act. J. Boswell. Alt. D. Dalrymple.