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Scottish Court of Session Decisions >>
The Town of Linlithgow v Unfreemen of Borrowstouness. [1663] Mor 12530 (13 February 1663)
URL: http://www.bailii.org/scot/cases/ScotCS/1663/Mor2912530-410.html Cite as:
[1663] Mor 12530
The Town of Linlithgow v. Unfreemen of Borrowstouness
Date: 13 February 1663 Case No. No 410.
A writ found not to prove, being an act of a Town Council, without citation or subscription of the party.
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The Town of Linlithgow insisted in their charge, upon a bond granted by some inhabitants of Borrowstownness, obliging them to desist and cease from using the merchant-trade, under the pain of 500 merks, which was suspended on this reason, That the bond was extorted by unwarrantable force, in so far as the suspenders were taken in Linlithgow brevi manu, and incarcerated till they granted the bond. The charger produced a decreet of the Lords in anno 1643 against several inhabitants in Borrowstownness compearing, who having suspended the general letters, upon the act of Parliament, for finding caution to desist, &c., the letters were found orderly proceeded, and the Town of Linlithgow empowered, not only to seize upon the merchant-goods of the inhabitants of Borrowstownness, if they meddled in merchant-trading, but also bearing with power to put the persons using the said merchant-trade in prison till justice were done upon them; and thereupon allege, That the suspenders being incarcerated by virtue and conform to the foresaid decreet standing, there was no unwarrantable force used; 2dly, They produced an act of the council of Linlithgow, bearing the suspenders to have compeared before the council, and to have confessed their wronging of the said Town in the trade of merchandize; and that there was horning and caption against them for that cause, and therefore declared their willingness to grant the bond in question. The suspenders answered to the first, That albeit the foresaid decreet bear compearance, yet there is dispute in it, and it is evident to be by collusion and surreptitious; because this conclusion now alleged is ultra petita, there being no such thing in the general letters, nor doth the decreet bear any special charge given, neither is this conclusion warrantable by any law or act of Parliament; 2dly, This decreet could be no warrant to incarcerate the suspenders, because it is given only against some particular persons then living in Borrowstownness, without calling either of the Baron or Bailies of the Burgh of Barony, and therefore is null as to any other persons; and as to the second answer, upon the act of council, it cannot prove against the suspenders, being only under the Town-Clerk's hand, not being a process upon citation, nor having a warrant subscribed by the suspenders.
The Lords having considered the bond in question, albeit they found the tenor thereof not to be contrary to the act of Parliament, yet found the same was unwarrantably taken, if the same was extorted, as aforesaid; and found the decreet of the Lords not to militate against the suspenders, or to warrant that incarceration brevi manu; and found the act of council proved not against the suspenders; and yet ordained them to renew a bond, by the Lords' authority, of the like tenor.
