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Mr Thomas Binning in Dalmarnock v Christian Cook, and Mr Hugh Arnot, her Husband. [1711] Mor 7662 (24 January 1711)
URL: http://www.bailii.org/scot/cases/ScotCS/1711/Mor1807662-371.html Cite as:
[1711] Mor 7662
Mr Thomas Binning in Dalmarnock v. Christian Cook, and Mr Hugh Arnot, her Husband
Date: 24 January 1711 Case No. No 371.
A sheriffclerk competent to judge in absence of the sheriff-depute by virtue of a commission from the sheriff-principal; and his clerk depute to officiate as clerk.
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Christian Cook and her Husband suspended a decreet pronounced against them by Mr James Leslie, as sheriff-depute of Fife, at the instance of Mr Thomas Binning, upon this ground, That it was null, because Mr James Leslie, the pronouncer, was principal sheriff-clerk; and it was inconsistent and irregular for one man to be both judge and clerk, two distinct offices that should be independent of, and mutual checks to one another.
Replied for the charger, Though it be incompatible for the same person to sit both as judge and clerk in eodem judicio, why may not the principal sheriff-clerk, (as it was in this case) sit in absence of the sheriff-depute, by virtue of a commmission from the sheriff-principal, or from his depute, and the clerk-depute officiate as clerk, which is the general practice in all inferior courts, the principal clerk being most capable to judge in absence of the judge-depute ? The cause of a principal sheriff, stewart, or bailie, may be judged by their deputes, act 84. Parl. 6. James VI.; albeit the former may have as great influence upon the latter, as a sheriff-clerk qua judge can have upon his clerk-depute. And there appears no greater danger to the lieges from the sheriff-clerk's judging as depute-sheriff, than from the sheriff-depute himself; yea, a greater presumption of partiality lies against the sheriff-depute, especially in decreets condemnatory, where he gets sentence-money; since the sheriff-clerk's dues are the same, whether the sentence condemn or assoilzie.
Duplied for the suspender, There being necessity for an act of Parliament to allow deputes to judge in the case of their constituents, it seems yet unlawful for a sheriff-clerk and his depute to officiate as a judge and clerk in eodem judicio. Yea, a depute's judging his constituent's cause is not so dangerous; seeing the clerk of court, who is altogether independent both of the sheriff and his depute, is a check to him; whereas here, Mr James Leslie had no check upon him, but what he might remove him at the next turn in case of a disobligation.
The Lords repelled the nullity objected against the decreet.
