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Defences were given in for the Provost, Magistrates and Town-Council of Dunbar, in which they pleaded, inter alia, that the defenders, councillors, had not been regularly cited, in respect that the summons contains a petitory conclusion against them. They had been cited as individuals, and the summons contained no warrant for so citing them, and that Denham, a councillor, had not been cited edictally, though forth of the kingdom for more than forty days previous to citation.
The Lord Ordinary pronounced the following interlocutor and note: ‘The Lord Ordinary having considered the summons, and sup-plementary summons and dilatory defences to both actions, conjoins the same; and having heard the counsel for the parties thereon, repels these defences; and the defenders intimating their intention to reclaim, finds them liable in the expenses of this part of the discussion.’
Note .—‘1. None of the authorities relied on by the defenders support the first defence; the pursuers being not mere burgesses, but a minority of the Town-Council. 2. The second defence overlooks that the pursuers do not merely seek to have the act of Council rescinded, but to have it declared illegal ; without which it might be re-enacted at pleasure. 3. The 3. Geo. IV. cap. 91, applies to cases of accounting and of alienation , not to proceedings like the one now challenged.’
Rutherfurd and Marshall founded on the case of the Magistrates of Inverury, 14th Dec. 1820, Ersk . i. 4. 23, and Magistrates of Lauder, 17th May 1821, to shew that private burgesses have no title to sue Magistrates for alleged acts of mal-administration of burgh property. They also pleaded that the Court of Exchequer was the proper court for a question of this kind.
An objection was taken to the mode of procedure, by which they bring parties into Court. A discussion took place on that. I give no opinion. I don't understand that the objection was sustained.
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