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 TITLE TO PURSUE.

John Baxter, Provost of Cupar, and Other Burgesses,
v.
Monro

1772.

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In that case, the Magistrates and Council had, by an act, given £40 to Monro, a vintner in the burgh, upon the narrative of good services to the town. Of this act Provost Baxter and others obtained suspension ; and the Lord Ken-net, Ordinary, having suspended the letters simpliciter, the Lords, upon bill and answers, wherein the point of the title was fully discussed, adhered. In this instance, it is true, the challenge was brought at the instance of some Magistrates and Councillors of the burgh : but this does not seem to make any difference.

It has been often contested, how far burgesses have a title to pursue the Magistrates of a royal burgh, to account in a general way for mismanagement of the revenue of the burgh. (It was for this reason that a process at the instance of Burns and other burgesses of Kinghorn, against the Magistrates for malversation and mismanagement, was dismissed. It resolved into a general count and reckoning, and fell properly, in terms of the statute 1535, to be discussed in Exchequer.) But three things seem clear, Primo, That, if the burgh is not a royal burgh but a burgh of barony or regality, their title is undoubted, because the law, which seems to point out a different method in royal burghs, does not extend this to other burghs ; and, Secondly, That where there is any particular dilapidation of the heritable subjects of the burgh, there the burgesses have a title to reduce the transaction, by an action before the Court of Session; see Johnston against Magistrates of Edinburgh, anno 1735, 1 New Coll., 3d July 1752, and 30th June 1754. And even, Thirdly, the same is competent where any particular dilapidation of the revenue of the burgh is condescended on, though not of its heritage. Of this last an instance occurred,