BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
John Hamilton of Farm v The Town of Hamilton [1687] 3 Brn 636 (12 July 1687)
URL: http://www.bailii.org/scot/cases/ScotCS/1687/Brn030636-0968.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 12 July 1687
John Hamilton of Farm v. The Town of
Hamilton.
Click here to view a pdf copy of this documet : PDF Copy
John Hamilton of Farm pursues the Town-Council of Hamilton on this ground, That Archibald Williamson, merchant in Edinburgh, had, in a subsidiary action, got a decreet against him for the escape of Mr John Bailie of Carfin out of their Tolbooth, though it was by no deed of his, but by James Hamilton his conjunct bailie, as appeared by the depositions of the witnesses: and therefore he convened the Town-Council of Hamilton to pay the debt, and to relieve him, for their electing the said James, who was a known bankrupt at that time, super hoc medio, that, they being vested with a power of delegation, they must be answerable for their deputes, and their delinquencies, by the 6th Act Parl. 1424, and l. 11, 12. et seq. D. ad Municipalem. And Perezius, ad tit. C. De Periculo Nominatorum, et quo quisque ordine conveniatur, shows that magistrates of cities, naming their successors, ex eâ creatione tenentur, si nominent inidoneos successores; even as they were liable; et litem suam faciebant, if they accepted insufficient tutors or cautioners; tit. Dig. de Magistrat. Conven. And if the representatives of a Town be discussed for a debt, and are unable, then the burgesses become liable.
Answered,—This was a novelty, et noxa caput sequitur, et pæna suos tantum auctores tenet; and the Council are fundi officio after election; and the relief never extended further than against that colleague who malversed.
The Lords were straitened (though the action was just;) and therefore, on Castlehill's report, they refused to sustain process against the Town-Council super eo medio as electors, from whom the bailies derived all their power.
