ROBERTMUNRO , Vintner in Cupar

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March

4. 1 7 7 2

UNTO TH E R I G H T HONo URABLE,

The

LO RD S o f

COu N C IL

TH

and S E S S I O N

E

P E T I T I O N O F

ROBERT

MUNRO,

Vintner in Cupar;

H umbly Sh e w e t h ,

H A T about the year 1766, there was a disputed election o f the Dean o f Guild o f Cupar, the petitioner claiming to be elected on the one side, and Baillie John Stewart on the other : In consequence o f this dispute, both parties claiming the office, the town council, in possessorio, determined in favour o f Baillie Stewart; but the matter coming afterwards before the Court o f Session, the court sound that the petitioner was duly elected. They did not think proper, however, to award him expences. In the course o f this dispute, o s me very material points rela­ tive to the constitution o f the burgh o f Cupar were settled, particularly this capital question, Where the right o f creating guild-brethren was vested, t hat right being claimed both by magistrates and town-council, and by the dean o f guild and his council ? It was found, however, that it was vested exclu­ sively in the latter, the town-council having no title to create guild-brethren.

T

No

No other advantage was reaped from this law-suit but the settling o f these constitutional points ; for, as the law-suit de­ pended still another election was made, the petitioner never at­ tained possession o f the office, so that it was the burrow truly that were benefited by this dispute, not the petitioner ; who, on the contrary, had an account o f expences to pay out o f his pocket to the extent o f about L. So sterling. In these circumstances, the petitioner apprehended that he had an equitable claim against the burrow, for some part at least, if not the whole o f the expences thus laid out, in ascertaining points tending to prevent disputes afterwards among the members of the community, and o f consequence to pre­ serve the public tranquillity. F or this reason, he applied,, by petition, to the town-council, setting forth the grounds of his claim, and therefore praying for such a sum as the town-council h s ould think proper, to be applied towards discharging the debt he had unfortunately incurred by that dispute. When the petition was read in council, one o f the members proposed, that without making any deliverance on the petition, the town council (house! give him a donation o f L. 40 sterling, on account o f his good services. This was opposed by other members of the council, upon very extraordinary grounds, as Appears from the minutes : Among other things they alledged, t hat they did not know but that the expence o f process was '“charged to the town’s account ; a vote, however, being put, only three o f the members o f council voted against the motion, and one was non-liquid; no fewer than twenty having voted in the affirmative* Provost Baxter having conceived a political grudge against the petitioner, let himself to work to render this act o f the council ineffectual, by endeavouring to have it rescinded, but was not able to carry his point in council ; he therefore, and some o f his friends thought proper to present a bill o f suspen­ sion, of the act of council, to this court, and the bill being past, the process o f suspension came in course o f the rolls, be­ fore Lord Kennet as Ordinary. The petitioner’ s counsel having insisted, that this action was incompetent before this court, as tending to make the Court of Session comptroller-general o f the administration of the common good of burrows ; and alio, that the donation made by the town of Cupar to the petitioner, was a rational act ; his L o r dship

ship was pleased to pronounce the following interlocutor: ‘ The Lord Ordinary having considered the above debate, suspends the letters simpliciter, and decerns which interlocutor was signed 2 - d January last. The petitioner preferred a representation against this interlo­ cutor, which was appointed to be answered ; and answers being given in, the Lord Ordinary, on the 19th February, was pleased to pronounce this interlocutor : ‘ The Lord Ordinary havingconsidered this representation, with the answers thereto, re­ fuses the desire o f the representation, and adheres to the for­ mer interlocutor.’ This interlocutor the petitioner humbly submits to the review o f your Lordships. In the first place, on the footing of the competency o f the present action in this court ; and, in the next place, on the merits o f the act o f council, now fought to be suspended by your Lordships. As to the competency o f the action, the petitioner humbly contends that it is now an established point, that this court have no jurisdiction over the magistrates and counsellors o f royal burrows, with respect to the administration o f their common good or public revenue; the only check upon them in that par­ ticular being an obligation imposed on them by law to pass their accounts annually in Exchequer, where all having interest may appear and object to those accounts, in case any objections to them occurred ; but their accounts, when they are so passed or not, cannot be overhauled by this court. This question was fully under the consideration o f the court, no farther back than the end o f last winter session, in the case of David Gilchrist and others against the magistrates and towncouncil o f Kinghorn ; wherein, after informations had been g i­ ven in upon that and other points in the cause, your Lordships appointed a hearing on this point alone ; and thereafter very full memorials were given in, wherein the point was argued at large on both sides. In that case the pursuers alledged a great'variety o f misappli­ cations o f the revenue o f the town o f Kinghorn, and in parti­ cular, that from a free fund lying at interest they were within a short period reduced to such a situation as to be in debt up­ wards o f L. 2000 Sterling. The accounts o f the burrow had never been pasted in E xchequer, lo far as it appeared; and the pursuers

pursuers insisted for having the books o f the burrow inspected and laid open to the inspection o f the burgesses : As also, in a declaratory conclusion for the magistrates being obliged to lay them open to the inspection o f the burgesses, during a certain time, once every year. It was contended on the part o f the defenders, that the action was incompetent in this court ; for that the Exchequer was the only court authorised to audite the accounts of burrows, and to determine whether their revenue was properly expended or not : That this power was lodged with the Exchequer by the statute 1 5 3 5 . c. 26. and that no law had given it to the Court o f Session. On the other hand, it was argued by the pursuers, that the power o f reviewing the administration of the magistrates and towncouncil o f a burrow, in affairs relative to the revenue, resided anciently in the chamberlain, as appeared by the iter camerarii, which directed the chamberlain, by his precept issued to the ma­ gistrates of the burrow where the chamberlain air was, to lit to summon ' omnes alios officiariis qui se intromisserunt infra dic­ tum burgumab ultimo itinere, camerariæ nostræ; ibidem coram nobis seu dictis deputatis nostris pluribus aut uno, dictis die & loco, cum præfata continuiatione dierum super isb i o bjiciendis & jura parituros.' Iter camerarii, c. 1. & in c. 3 9. § 45. One o f the articles to be inquired into by the chamberlain is, Si de communibus profectibus burgi legalis fiat assedatio & levatio, & si de eisdem fidele computum communitati burgi reddatur, & si ita non sit per quem, & in quorum mantis devenerunt, & quomodo transeunt in negotiis communitatis.' The fame jurifdietion is recognised by special statute, viz. the statute 1 4 0 1 , c. 36. in these w o rd s: ‘ Item, It is statute and ordained anent the common gude o f all our sovereign lordes burrowes within the realm, that the laic! common-glide be observed and keeped to the common prosit o f the town, and to be spended in the common and necessary things o f the burgh, be the advise & council o f the towne for the time, and deakons of craftes quheir they are, and inquisition feirly to hr taken in the chamberlain-aire of expences and disposition o f the samen.' The pursuers in that cause contended, that the chamberlain court being now totally in desuitude, these powers o f the cham , berlain

berlain court were devolved upon the Court o f Session, as the ge­ neral judge ordinary in matters civil, along with all the other jurisdictions anciently exercised by the chamberlain of Scotland. The defenders on the other hand contended, that the statute 1693, chap. 28. afforded strong evidence, that the Court o f Session possessed no such jurisdiction. T he first part o f this sta­ tute is in these words : ‘ Our sovereign Lord and Lady, the King and Queen's Majesties, considering, that the royal bur­ rows o f the kingdom, erected and provided with their re­ spective public goods and revenues by their Majesties royal an­ cestors, and o f late, through the mal-administration o f the ma­ gistrates and others, to whom the management o f the said public goods and revenues have been committed, fallen under great debts a nd burdens, to the diminution o f the dignity o f the estate o f burrows, and the disabling o f them to serve the crown and government as they ought ; and that the care, oversight, and controul of the said public goods and revenues, and o f the administration thereof, doth undoubtedly belong to their Majesties by' virtue o f their prerogative royal ; have thought sit to declare in plene parliament, likeas they do hereby declare, that, as well for what is past as in time com­ ing, their Majesties will give commissions one or more to such persons, as they shall be pleased to nominate to enquire into the condition and state o f the common good and revenues whatsoever o f all the royal burrows, and how the fame hath been heretofore or shall hereafter be employed or misemploy­ ed, and to call the malversers and misemployers to make ac­ count, and to ordain and decern them, and every one o f them, to refund and repay, or otherways to repair the burgh or burghs by them lesed, as the laid commissioners h s all find lia­ ble.’ From this part o f the statute it was argued, that the controul and administration o f the revenue o f burrows was not a matter o f ordinary jurisdiction, but pertained in especial manner to she prerogative o f the crown, and therefore could only be given to those to whom in seme special manner it was delegated, as by the statutes before recited it was to the chamberlain court and to the exchequer, and by the statute just now recited to the extraordinary commissioners named for that purpose ; but that as no statute had given such a delegation to your Lordships, that therefore

therefore that controul did not reside with you : And that the ordinary controul in such cases was considered to reside in the exchequer alone, was farther argued from the following words o f the statute: ‘ Their Majesties, with advice and consent foresaid, declare, that the acts and sentences o f the laid commissioners shall have the strength and effect o f acts and sentences of the Court of Exchequer : And for preventing the like abuses and misap­ plications in all time hereafter, their Majesties with advice and consent foresaid, statute and ordain, That every burgh-royal within this kingdom, shall, betwixt and the 1st day o f Novemher next to come, bring the Lords o f their Majesties treasury and exchequer, an exact stated account o f charge and discharge subscribed by the present magistrates and town-clerk o f their whole publick good and revenues, and o f the whole debts,‘a nd burdens, and incumbrances that do affect the same.’ And in the last place, it was argued from this statute, that it clearly indicated the Court o f Session, in particular, had no ge­ neral jurisdiction in matters relative to the controul o f the ad­ ministration o f the revenue o f burrows, as that statute bestows upon them that coutroul in a particular case only, and that in sa very limited sense. The clause is in these words : * And fur­ ther, it shall not be lawful, for hereafter, to the magistrates and town-council, to contract any debt, or give bond for the same, obliging them and their successors in office, without a previous act made in the town-council, in their fullest con­ vention both o f merchants and deacons of crafts, condescending upon the c au ses and uses for which the said debts are contracted and bonds granted : Certifying the foresaid magi­ strates and others, who shall contract debts and grant bonds without the said previous act, or it the causes and uses con­ descended on in the said act, shall not be found to be just, true, and real, that in any of the said cafes, the said con­ tractors and subscribers, shall he personally liable, they and their heirs and successors, in their private fortunes, to relieve and disburden the town o f the said debts, and that by decreet o f the Lords o f Session at the instance of any burgess o f any o f the laid burghs, who have borne the office o f provost, baillie, or dean o f guild, within the fame, hut prejudice always to the right and security o f the party ; as likewise but preju‘ dice

dice to any private person's rights as to any o f the said burghs, as accords. By this clause o f the statute, the Court o f Session are autho­ rised to interpose with respect to the administration of the patri­ mony of a burrow, only in the cafe o f that burrow actually contracting debt by borrowing money ; and there the court is entitled to interpose no farther than to oblige the parties bor­ rowers and contractors, to relieve the burrow out of their own private funds, in two events, the one o f which is, in cafe the borrowers shall not be previously authorised by an act o f the town council, assigning the causes of the borrowing ; the other o f which is, in cafe the causes so assigned by the act, shall not be found to be just, true and real. It is however remarkable, that while the court have this pow­ er given them, which by the by, can only be exercised in the way o f an action, brought at the instance o f a burgess who has held the office o f provost, baillie, or dean o f guild, o f obliging the parties contractors to relieve the burrow o f the obligation ; yet they cannot hurt the security o f the party with whom the administrators o f the burrow contract, even contrary to the disposition o f the act o f parliament, nor o f any other private party : A strong instance how limited the law meant the power conveyed by this act to the Court o f Session should be, and how. little it intended the court should interfere in the matters o f or­ dinary administration o f burrows. In the case o f Kinghorn, the question was concerning a va­ riety o f articles ; and indeed a general count and reckoningconcerning the revenue of the burrow within a period o f time, during which it was alledged, debts, to a very considerable e x ­ tent, had been contracted, though before that period the bur­ row had been possessed of considerable funds in ready money, and the magistrates in possession, and who had been in possession for a term o f years, were called on to show how and in what manner that great load o f debt had been contracted, and for what purposes : in doing fo, they had, at least, a colourable title under the act o f parliament 1 6 9 3 , in the clause last recited, as they w ere 3ntitled, in case such money was borrowed, without a previous act o f council, assigning the cause o f borrowing, or in cafe the causes fo assigned were not just, true and real, to insist, that the parties contractors should relieve the burrow. The action, however,

however, was o f a general nature, and did not subsume as to particular debts on this head, your Lordships therefore disc missed it as incompetent. t he present action, however, is o f a very different kind, it has no authority under this, or any other sta­ tute, for being tried in this court ; and nothing more inconve­ nient or inexpedient can be supposed, than to give autho­ rity to Inch action ; for at this rate, every act of ordinary admi­ nistration of the magistrates and council o f a burrow may be brought into this court, and canvassed and examined here, and the whole administration o f the affairs of a burrow may, by re­ peating suspensions o f this kind, be interrupted and brought to a stand, if one or two members of a town-council are of a fac­ tious enough disposition to pursue such measures; the conse­ quences that would follow, both to the court itself and to the burrows, are too obvious to be enlarged on : And it is well known that it too frequently happens in burrows and all other corporations, that there are men of fo unhappy and factious a disposition, that they would defire no greater pleasure than thus to embarrass and perplex thole who held the office of admini­ strators along with them ; i f such people once understood they had such a power, they would not fail to exercise it most effec­ tually. The suspenders, in support o f the competency o f their ac­ tion, have referred to a case which lately occurred relative to the burrow o f Pittenweem, in the reduction of a bond granted b y the late magistrates and town-council o f that burrow to John Borthwick, and by him assigned to Robert Alexander merchant in Edinburgh. It was carried on at the instance o f the prelent magistrates and town-council o f that burrow, and in which they lay, not the least doubt was suggested, with re­ spect to the competency of the action. T he petitioner is not acquainted with the particulars o f this cafe ; blit the very way in which the case is stated by the suspen­ ders, affords an answer to it ; for i f no objection was stated to the jurisdiction, but parties joined issue on the merits o f the cause, the jurifdiction was thereby prorogated primis actus judicii est judicis approbatorius ; your Lordships therefore in such a case would acquire a jurisdiction by prorogation, though it did not originally belong to you, In

In the second place, the question there, according to the stat­ ing o f the suspenders, was a question about borrowed money, and therefore might very competently be brought before your Lordships, under the last clause o f the statute 1693 And in the third place, in the case o f Pittenweem, the present administrators o f the body corporate, were qua such inquiring in­ to the administration o f their predecessors in office; which is ex­ tremely different from the case o f a minority of the present ad­ ministrators of the community as stating themselves as parties a- , gainst a majority, and bringing the acts of administration into this court to be discussed and regulated here in the form of a suspension. Another objection to the competency o f the action in the pre­ sent cafe arises from the form of it ; supposing it had been com­ petent in the way of reduction, the petitioner does humbly sub­ mit to your L o r dships, how far a process of suspension, brought, at the instance o f one or more of the members of the town-coun­ cil, is a proper mode o f trying the validity o f that act o f coun­ cil, seeing no charge or diligence of any kind could issue against; the suspenders upon this act. Upon the whole complexion o f the cafe therefore, the petiti­ oner humbly hopes, that your Lordships will be o f opinion, that the present action is incompetent, and therefore ought to be dismissed. In the second place, the petitioner apprehends, that even sup­ posing the action competent in this court, there is no good ground for setting aside the act in the prelent cafe: burrows are not tied up to precise, rigid rules in the administration o f the revenue ; they have a rational and discretionary power ; they are intitled to judge o f good services, and to reward them ; and a better service could hardly be done to a burrow than to ascertain the rights of those entitled to vote at the election o f their office-bearers, thereby cutting off all future disputes, and pre­ serving the tranquillity and peace o f elections. Had the town authorised the action to be carried on at their expence, it cannot be doubted that the community would have been liable to the party disbursing the expence of the procedure: Is there a doubt then, that after the expences have been disbursed, and the com­ munity profited by the decision, that they have a power o f re­ imbursing a private man, who laid the expences out o f his own *

pocket,

pocket, without drawing any private benefit therefrom, a sum less than the one half of the expences which he really laid out for behoof o f the community ? 7 1 he suspenders have been pleased to contravert the position, that there was any benefit accrued to the burrow by the q uestion concerning the election o f the dean o f guild, which the petitioner brought to a determination at his own expence; for, say they, the magistrates and council still continue to give tic­ kets in the fame way as formerly; consequently, the abuse in cre­ ating guild-brethren is not yet corrected: But, in answer to this, the petitioner must observe, that the point is ascertained what guild brethren have right to vote in the election of the dean o f guild, consequ ently the constitutional point with respect to the burrow is ascertained : The magistrates may go on, giving as many tickets is they please, but these are no better than blank paper, in so far as respects a right o f voting in the election o f dean of guild ; the petitioner cannot help the abuse o f the ma­ gistrates and council bestowing honorary tickets, but they have no right to convey the privileges o f guild-brothership: But by his means all the evil consequences in matters o f election, that might follow from such an abuse, are corrected. The suspenders have pretended to call in question the power o f the meeting o f council, that made the act under suspension, to perform any act o f administration at a l l : The objection they make to it is that it was irregularly constituted, being called by the charger himself, who was youngest magistrate, 'without the authority o f the other magistates then in town. This, how­ ever is a mistake ; the suspender, the provost, indeed, was not in town, his usual residence being some miles from it, and he was there at the time ; the council, however, was called by au­ thority of all the other magistrates, for taking cognisance o f the ordinary business o f the burrow ; none o f the members pretended they were not properly constituted, or moved any objection to their proceeding to business, and accordingly they transacted a variety o f business that day, relative to the ordinary affairs of the burrow, as well as past the act now under suspen­ sion. In the last place, the petitioner submits to y our Lordships, whether the suspenders are not barred, pers onali exceptions, front insisting in this action ? As to the suspender, Provost Baxter, he encouraged

encouraged the petitioner to make application to the council, as seen as he himself should be present to assist him ; this appears from his setter in process, directed to the petitioner in the m sowing terms : ‘ Dear Sir, I have been long indisposed, and am still so ill as hardly to be able to write ; but unwilling longer to omit -assuring you that I shall never be against the town gi­ ving any thing you claim, or it can afford ; yet take the li­ berty to advise you to defer the application till I can be pre sent, and thereby enabled to give my own vote, and with more propriety solicit my friends to concur ; at the lame time consult them how your request, and the council’s grant may not he inconsistent with their former proceedings. Interuny I remain, with best willies to you, Mrs. Munro, and family, Dear Sir, your assured friend (signed) John Baxter. Leckiebank, 7th February, 1 7 7 1.' As to Baillie Bonthron, though he voted against the act under suspension, yet he entered no protest or distent against it, and afterwards homologated it by signing it. Dean of guild Rymer and Alex. C umming voted tor the act John Stewart was non li­ quid. George Peat and William Young voted indeed against the, act," but entered no dissent. George Tod was not present, a m L generally resides at Edin burgh; and John Thomson, James Scot, and William Lees, were not constituent members o f the towni

council.The suspenders have referred to a decision marked in e the dictionary, voce C o m m u n i t y . The Provost and ma- . gistrates o f Gl as gow against Earns, taken notice of by Lord Marcus as decided March 3, 1685, in which a discharge, g ranted to Mr. B a n k , sate Provost o f Glasgow, by the to w n -co u u c i l , o f a bond for L. 1700 due by him to the town w as found not valid, the discharge having been granted on the narrative o f good services done to the town, in consequence o f which he was decerned to pay the bond, in a prosecution at they instance o f the magistrates ; seem which it is- inferred, that a r o y a l burrow can in no calc dispose o f any part o f its funds ‘ gratuitously. t The circumstances of the decision above-mentioned do n o ^ ' appear, the cases in that collection being generally so very shortas to furnish very little light into. the circumstances o f any c a s e whatever; but it i, very probable some very peculiar circumstances

stances have occurred, more especially, as it appears, that the prosecution is in the name of the magistrates and council though the discharge is said to have been granted by them : Be •he circumstances of that, however, what they will, the petiti­ oner apprehends it would be a very great stretch to say, that ir royal burrow could upon no occasion dispose of ns funds, e x ­ cepting where an onerous adequate cause intervened ; by this means, an end would be put to all private charities out o f pu­ blic funds, which are often times most necessary and useful ; and in short, fo many disputes would arise about the applicati­ on o f the funds of communities, how far they were for onerous causes, and, whether those onerous causes were adequate or not, as would throw all those matters into the greatest confusion imaginable. Besides, as has been above observed, the cause o f granting this act of council is not merely ’g ratuitous ; it is a rational purpose for which it was granted, and was, in seme sense, in rem versam o f the town itself. The petitioner, in evidence of the practice o f this burrow in particular, hath produced sundry acts o f council, bestowing sums o f money without any onerous cause, of which there is )one pretty singular, bearing date 30th November, 17 6 1 ; there it appears, that the suspender, John Thomson, objected to an article o f the treasurer’s accounts, relative to a sum of L. 41 : 6 : to Sterling, paid to Alexander Black writer, by aut h o rity o f the council, to indemnify him o f the expence o f process, before this court, about the election of town-clerk, in which h e was a p arty: It carried, however, that the sum should he all o w ed, upon which Mr. Thomson very modestly proposed, that she should have a present o f ten years feu-duty, o f a feu from the fa rm he entered to in the year 1756. Another motion was shade, that he should be allowed only five years feu-duty. T h e two motions were put to the vote, and it carried twelve ten, that he should have ten years sen-duty free. At the same meeting they discounted a year’s tent o f a farm to Ja mes Tod their late treasurer. There is another act of council, o f date 10th July 1764, by which Baillie Stewart and Baillie Bo'nthron, two others of the suspenders, got an allowance o f L. 15 Sterling out of the rents : As also another, o f date 20th Februa­ ry 1 7 6 9 whereby the same Baillie Stewart gets a feu of an acre '

of

o f ground at an elusory feu-duty o f one (lulling per annum ; and another of date 28th March 17 6 7 , by which there is a mere do­ nation, to the extent of L. 26 Sterling, bestowed upon Andrew Scot postmaster, under the name of charity, and to keep him from being broke. In short, instances o f this kind are not only very numerous in the burrow o f Coupar, but it is believed there is hardly a burrow in Scotland that does not afford many. The petitioner therefore will be singularly unlucky i f his case alone, in which there was fo reasonable a ground for bestowing the money, shall be picked out among all the rest, and in it the magistrates and council found to have exceeded their powers, in making such an act, and bestowing such a sum upon the pe­ titioner. Upon the whole, the petitioner apprehends, that i f this ac­ tion is not incompetent in this court, he is well founded in the merits o f it. May it therefore please your Lordships, to alter the Lord Ordinary's interlocutor, and to find that this process is incompetent before this court; or, at least, 2do, To find the letters orderly proceeded. According to justice, & c . A N D REW CROSBIE.

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