Scottish Court of Session Decisions

Subject_1 JURISDICTION.
Subject_2 DIVISION XVII.

Town Council of Burgh, and Bailie Court. - Burgh of Barony.

Magistrates of Paisley & John Adam

Date: 30 November 1790
Case No. No 389.

In respect of ancient usage, horning was found competent to pass on the extracted decrees of the Magistrates of Paisley, tho' only a burgh of barony.

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A Bill of exchange having been protested at the instance of Adam, and the protest registered in the Court-books of the burgh of Paisley, on this registered protest a bill of horning was presented. In consequence of a doubt concerning its competency, started by the Clerk of the Bills, in respect that Paisley was not a Royal Burgh, the Lord Ordinary “appointed the complainer to give in a short memorial, distinctly stating the nature and constitution of the burgh of Paisley, and in what respect horning is competent to pass upon the extracted decrees of its Magistrates, or on protests, or other writings registered in the books of that burgh.”

Upon this the Magistrates sisted themselves, as parties, in support of their jurisdiction, and gave in the memorial required by the Lord Ordinary, who afterwards ordered them to prepare a memorial to the Court, in order to report: In this it was

Pleaded, The Town of Paisley was erected into a burgh of barony, by a charter of King James IV. in 1488; and, afterwards, the superiority of it was obtained by the Council and community, by whom it is held of the Crown.

The Magistrates have constantly exercised jurisdiction, both civil and criminal, with every privilege of a Royal Burgh, except that of sending a representative to Parliament; a jurisdiction which has been uniformly recognised by the Supreme Courts. In particular, a large number of hornings and captions, on their decrees, from the year 1742 downwards, has been exhibited. That it was a legal and competent jurisdiction will appear on examination.

The letters of four forms, which had been confined originally to obligations ad facta præstanda, were extended to decrees for liquid sums, by act of sederunt, 23d March 1582, ratified by act of Parliament, 1584, c. 139. This statute authorises execution for liquid sums, “of decreets given, or to be given, by the Lords of Session, and sicklike of decreets given, or to be given, by whatsomever Judges within his Majesty's realm, whereunto the authority of the said Lords of Session has been, or shall happen to be interponed;” reference being here made to decreets or letters conform, so well known in our ancient law. Hence it is evident, that this personal execution was appointed to issue, upon the decrees of all Courts of established jurisdiction, whether superior or inferior.

Afterwards, execution by horning, on a single charge, came to be introduced in some particular instances; and it was usual to insert, in obligations for borrowed money, a stipulation to that effect. Then followed the statute 1592, c. 181. which, in order to avoid the expense of the letters conform, ordains the Lords of Session to “direct letters of horning on all decreets and acts given by Provosts and Bailies of burghs inter con-cives.” Here the term “burghs” plainly comprehends all burghs, whether those of barony, those of regality, or Royal Burghs; and it is so understood by Sir George M'Kenzie in his Observations, who employs the corresponding general expression of “towns.”

In like manner, the subsequent act of 1606, c. 10. which confers the same privilege of execution by horning, on decrees of Sheriffs, &c. states it, in the like general terms, as ordained by the former statute, to pass on “decreets, acts, and sentences, of Provosts and Bailies within burgh.”

As the terms are general, so there is the same reason for extending execution by horning, to the decrees of the Magistrates, of burghs of barony, or of regality, as of Royal Burghs. If decreets conform, and letters of four forms, were competent upon the decrees of whatsomever Judges, or of the Magistrates of burghs of barony, there is surely no reason why diligence by horning, which was a mere substitute for the former more inconvenient mode, should not be equally competent.

In the present case, this conclusion is confirmed by the inveterate and immemorial usage respecting the burgh in question; and it is a practice founded in the highest expediency; as the jurisdiction of the Magistrates must otherwise have been rendered nugatory, as often as a party chose to pass over the bounds of their territory.

On advising this memorial, and the report of the cause, the Court paid attention to the inveterate usage; but, at the same time, they seemed to consider burghs of barony, or of regality, as differing little or nothing, in point of jurisdiction, from Royal Burghs. It was also noticed, that the burgh of Paisley, instead of a subject superior, holds of the Crown.

The Lords, therefore, sustained the jurisdiction in question.

Reporter, Lord Dreghorn. Act. Cullen. Fol. Dic. v. 3. p. 362. Fac. Coll. No. 152. p. 303.

*** See Burgh Royal.