Scottish Court of Session Decisions

Subject_1 COMMUNITY.
Subject_2 SECT. II.

Whether Magistrates are liberated by expiry of their office.

James Livy
v.
David Mudie and Others

Date: 6 August 1774
Case No. No 18.

Magistrates charged to pay a sum due by bond, granted by by them in their corporate capacity, were found entitled to suspension without caution, on granting conveyance of, or security on, the town's funds; not being personally liable, except while in office, and while the funds are under their administration.

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The above-named persons presented a bill of suspension of a charge of horning given them, in their respective characters of present and late Counsellors of the burgh of Arbroath, at the instance of James Livy, to make payment to him of the balance remaining due upon a bond granted by some of themselves, and others, as Magistrates and Counsellors of said burgh; which bill, they insisted, ought to be passed without caution, upon their lodging such conveyance of, or security upon the town's funds, as the Court should direct; for that, if they should submit to find caution for the sum now charged for, they would be exposed to the like distress for the whole of the town's debts, at the instance of the town's other creditors, to an immense extent, and so much beyond what they are capable to pay or give security for: And, in point of law, argued, It is the community itself who is the proper debtor, as it is only virtute officii that the Magistrates and Counsellors grant bond for the money so borrowed, binding them and their successors in office, and it is in that character the creditor transacts with them; and, how soon their offices expire, they cease to be personally liable, and the obligation transfers to their successors in office, as the representatives of the community, further than as they, and every other person, as members of that community, may be subsidiarie liable as so many individuals, after exhausting the community's proper funds: That it matters not whether the bond, or other security, is granted by the then Magistrates, or by their predecessors in office, were it ever so far back. It is the town's proper debt, and ought to be paid out of the town's proper funds, and in subsidium by the inhabitants; though, in order to come at these, as the diligence of law must always be directed against some person, the Magistrates for the time being, as representing the community, must be sued or charged for payment, though the bond was granted by their predecessors in office; for this plain reason, that the community itself can only be sued in the persons of the Magistrates and Council, its representatives. But it will not thence follow, that these Magistrates can either be distressed in their persons, or have their private fortunes directly attached for payment of the town's debts: To save them from which, was the sole object of the present bill of suspension, without presuming to say in what manner that relief should be given.

Livy, the charger, opposed the passing the bill without caution, both upon the specialities of the case, and likewise upon the general point of law; maintaining, that it is established, by various decisions, that Magistrates are liable to personal diligence for the debts of the community. But, independently thereof, there were specialties in this case sufficient to exclude the suspenders plea.

1st, That, in the transaction between him and them, the rules prescribed by the statute 1693 had not been observed; to which it was answered, Whatever claim the body corporate may have to be relieved of any of the debts in which the rules prescribed by the statute 1693 have not been strictly complied with, when challenged by any who have borne the office of Provost, Bailie, or Dean of Guild, within the burgh; as the interest of the creditor is not thereby affected in the smallest degree; and as there is here no question, as to the town's right of relief, against the granter of the bonds; that circumstance cannot have the least influence upon the question now at issue. It is the community itself who is the proper debtor; and if that claim of relief shall ever come to be the subject of question, the suspenders will be under no difficulty to make it appear, that the contents of this bond were truly applied for the neccessary uses of the burgh.

The second specialty urged was, These suspenders, whose party compose the majority of the Council of the town, and, contrary to its set, have been in office about twenty years successively, borrowed the charger's money at a time when they knew the community, for whose behoof they were borrowing, was altogether insolvent. This was such a fraudulent and improper conduct, as to bar them from obtaining the indulgence they now claim, were they otherwise well founded in demanding it. Vide Bankton, b. 4. tit. 19. § 2.

Upon the general point, the following authorities were mutually referred to on both sides: Durie, p. 97. 15th January 1624, Laird of Drumlanrig, No 13. p. 2509.; Honeyman against Town of Dysart, Sir Pat. Home, MS.January 1685, No 14. p. 2510.; Lawson against Simson, &c. February 1686, No 15 p. 2510.; Bowie against Wilson and other inhabitants of Culross, 7th February 1695, Fountainhall, v. 1. p. 667. No 16. p. 2511.; and, for the charger separately, Town of Aberdeen against Lesk, &c. 11th January 1678, No 16. p. 1866. Bankton, b. 4. tit. 19. § 2.

Observed on the Bench, Where a bond is granted by Magistrates for the community, it is the community that, in such a case, is bound; and the Magistrates for the time being are charged, in which case they suspend the charge, on making over the funds of the community, for they are not personally bound. The charge of fraud, which is another ground insisted on, will not do in the present shape, but by an ordinary action against them as individuals; therefore the bill ought to be passed simply.

‘Which the Court accordingly found.’

Act. Elphingstone. Alt. Dean of Faculty. Clerk, Campbell. Fol. Dic. v. 3. p. 141. Fac. Col. No 133. p. 353.