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Scottish Court of Session Decisions >>
The Magistrates of Edinburgh v Æneas M'Leod. [1696] 4 Brn 303 (1 February 1696)
URL: http://www.bailii.org/scot/cases/ScotCS/1696/Brn040303-0659.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Magistrates of Edinburgh v. Æneas M'Leod
Date: 1 February 1696
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The Magistrates of Edinburgh, designing to turn out Æneas M'Leod, their clerk, gave him a citation upon a libel of malversations before themselves. He presents a bill of advocation on thir reasons, That they were suspect of partiality, in regard they had exhibited a charge against him before the Parliament 1695, which was remitted to the Judge Ordinary; and their attacking him just now, before their own Court, showed a great eagerness to be both judge and party; and the famous practitioner, Robertus Maranta, in his Speculum Aureum de Appellationibus et Recusationibus Judicum, allows judges to be declined on less grounds and qualifications than thir.
Answered,—None could doubt but the Town were most competent judges, in primâ instantiâ, to their own servants; and their application to the Parliament was only to get some exorbitant extraordinary clauses in his gift and admission rescinded;—such as, that he should not be cited upon less than four weeks, and see his accuser, &c.
The Lords thought there was ground of suspicion, and therefore advocated the cause to themselves, but so as Mr M'Leod should be obliged to answer summarily to the articles of malversation exhibited against him.
In this cause the process against Sir William Thomson, Town-clerk, recorded by Stair in 1665, and against Sir James Rochead, in 1684, were cited. Though incompetency and iniquity be the main reasons of advocation, yet they are not the sole. Intricacy, suspicion, double rights, &c. are also causes.
