Scottish Court of Session Decisions

Subject_1 COMMUNITY.
Subject_2 SECT. I.

How far a Community is bound by the Deeds of its Magistrates, or liable for their delicts.

The Magistates of Edinburgh
v.
John Paterson

Date: 1 February 1690
Case No. No 4.

Magistrates had granted a tack for two 19 years. This was contrary to act 36th Parl. 1491. But there had been a practice of obtaining the consent of the Convention of Burghs to such tacks, which it was said validated them. The Court, in a reduction, allowed, before answer, a proof of the custom. The pursuer had likewise alleged, that the subject was let at an under-value. A proof of the value was ordered.

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Arbruchell reported the Magistrates of Edinburgh against John Paterson, for reduction of a feu, granted to him by the Town in 1684, of a piece of ground in the links of Leith, whereon he has built sundry houses, and pays five merks of yearly feu-duty, besides stent and excise; as also, for reduction of a tack then set to him, of Leith links, for two 19 years, for 300 merks by year. The reasons of reduction were, 1mo, The tack is ipso jure null, for it wants the act of Council, its warrant. 2do. By the 36th act of parliament 1491, the royal burghs may not set tacks longer than three years of any part of their common good, or town rents, without they be ratified and approven by the convention of burghs. 3tio, It is set with evident lesion, for the links are worth 900 merks yearly; and, at a roup, Archibald Johnson bade 550 merks for them, and yet Paterson, the defender, has them for 300. Answered to the 1st, The warrant is standing in the town's books, and by a diligence he will recover it from their clerk. To the 2d, The act of Parliament is in desuetude; and though acts of convention are produced, ratifying such tacks, yet they are ancient and of an old date, and every day the Town Council of Edinburgh are setting tacks for longer space than three years, as the shops about St Giles's church, the burgh-loch, &c. To the 3d, Johnston's offer was but in emulationem, and when he was put to it he resiled; so it was just the defender should have the benefit of the first tack, especially seeing, at the ish of the tack, the town were to have the houses he had built; and if they were not satisfied, he was content to renounce, on their refunding his expenses and meliorations. Replied, A two 19 years tack was species alienationis, which should not be allowed to administrators, who are but as tutors and curators to the burgh; and esto Johnston resiled from his offer, it was a malversation in the Magistrates to set it cheaper than the roup. Some of the Lords were for trying the value of the links before answer, that if there was a great disproportion between his tack-duty, and what it might really give at that time, the Lords might cognosce if there was lesion. But the plurality repelled the reasons of reduction, arid sustained both the feu and tack.

The Lords afterwards allowed the value of the links to be tried before answer, and the custom of the convention of burghs ratifying tacks.

Fol. Dic. v. 1. p. 156. Fountainhall, v. 1. p. 818.