Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 COMMUNITY.
Subject_3 The Magistrates and Town-Council of a Burgh found entitled, for an adequate consideration, to sell the liferent of a superiority, without setting it up to public roup, although informed of an intended competition.

James Wilson and Others,
v.
John Story and The Magistrates of Paisley

Date: 21 February 1775

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[Faculty Collection, VII. 38; Dictionary, 2529.]

Hailes. There was nothing wrong meant or done by the Magistrates. They got a fair price for the liferent superiority; as much, or more than they would have got from the pursuer, Wilson. Besides, it was natural for them not to choose to give the vote to the agent of the family that, in 1759, had got the town of Paisley turned off the roll: this would be giving their new vote to the persons who deprived them of their old one: this could not be expected.

Coalston. Magistrates of boroughs are not proprietors; therefore they cannot alienate gratuitously, but they may for onerous causes. They are under no obligation to put up the subjects to public roup: If the Magistrates had not been interpelled, this would have been a good sale, for the offer made by Wilson was not so good as that made by Story; but the difficulty arises from Wilson's letter before the sale, desiring to be informed of the time of the sale that he might be put upon an equal footing. In such cases, magistrates must always take the most that can be had.

Monboddo. It makes no difference that this subject was not part of the original common good, but acquired by the Magistrates. The bargain was not a bad bargain: nevertheless, more could have been got: they were interpelled. At the same time, I do not say that it ought always to be the rule to dispose of the common good by public roup, although I know that the town of Aberdeen always does it, and with great emolument to the community.

Kaimes. There is an old Act of Parliament which provides that the common good shall be rouped for three years. This was formerly supposed to relate to lands; but that notion is now exploded. Here the question is, What will be the consequence of not advertising Wilson? It cannot affect Story; for, as to him, the sale is good: It might go to damages, but what are the damages?—for it is not certain whether Wilson would have given more than Story.

Auchinleck. Politicians afford us new dishes every day. Suppose that the Magistrates of Paisley did not choose to make a freehold qualification, Could Wilson require them to do it for the good of the borough? Could we have found the Magistrates liable in damages for not selling their vote? I apprehend not. Suppose that Wilson had asked to purchase, might not the Magistrates have said, “We do not like your face.” They durst not have said That he would be a disgraceful freeholder, for that might have landed them in a Commissary Court process.

Kennet. If the highest bidder must be taken by a public roup, this would be to encourage bribery, by giving the vote to the candidate who had the heaviest purse. The Magistrates might have got more; but they got enough.

President. If I see jobs as I thought I saw palpably in the case of Stirling, I would correct them: but when the question comes to be, Whether one man may live a year longer than another, I would not scrutinize so strictly. The Magistrates were formerly turned off the roll, and justly: they now endeavour to get on again in a way which the law permits. Here was a delectus personæ. I do not think that the Magistrates were obliged to take the highest offerer, however disagreeable to them. They might choose to have a man in their interest, not one connected with a candidate for the county. If one of the candidates for the county defrays the expense of this process, Wilson ought to defray the expense of the other party on account of his having acted as a tool.

Justice-Clerk. It was proper for the Magistrates to give the vote to a person of consideration, who might use it in favour of a candidate whom he might consider the most useful for the borough and the nation: at the same time, they, with no less propriety, resolved not to give the subject away without an adequate price. If the general principle were admitted, Magistrates would always be bound to take the highest offerer. The bad consequences of this are obvious. Suppose that some member of a great company should desire to have a feu of a piece of ground, with the purpose of erecting a manufactory, but a private man wants to have a villa on that spot,—he offers more than the great company offers, or in prudence should offer; if the hands of the Magistrates are to be tied up, we would put it in the power of individuals to hurt the general interest. The views of the Magistrates, in this case, instead of being blameworthy, were laudable.

On the 21st February 1775, “The Lords repelled the reasons of reduction, and found expenses due.”

Act. J. M'Laurin. Alt. J. Campbell. Reporter, Justice-Clerk.

Diss. Coalston, Monboddo.