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United Kingdom House of Lords Decisions |
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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Gibson Craig, Esq. - Cler - Cranstou - Moncreiff - Ivory v. J. Robertson and D. M'Gregor - Solicitor-General Wedderburn [1824] UKHL 2_Shaw_113 (26 March 1824) URL: http://www.bailii.org/uk/cases/UKHL/1824/2_Shaw_113.html Cite as: [1824] UKHL 2_Shaw_113 |
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Page: 113↓
(1824) 2 Shaw 113
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND, 1824.
2 d Division.
No. 16.
Subject_Public Officer — Stat. 6. Queen Anne, c.26. — Exchequer. —
Held, (affirming the judgment of the Court of Session), That the Barons of Exchequer are entitled to appoint a messenger and porter to perform the menial services of the Court, although another party be vested with the right of heritable usher and door-keeper of the Court, and of appointing deputies; and although he offered to prove, that he and his deputies had been in the practice of performing the same services as those executed by the persons so appointed.
The heritable office of usher and door-keeper of the Court of Exchequer in Scotland, was conferred on the family of Bellenden, by a charter from Queen Mary, on the 31st May 1655, and continued in that family till 1802, when it was exposed to sale, and purchased by the appellant. On the 2d of June 1807 he obtained a charter under the Great Seal, on which he took infeftment, whereby he was invested in “totum et integrum hæreditarium officium ostiarii et custodis januæ nostræ dictæ curiæ scaccarii, cum omnibus feodis, proficiis et casualitatibus, immunitatibus et privilegiis ad idem pertinen. et spectan. et libero exitu et introitu ejusdem, una cum potestate deputatos costituendi.”
In virtue of this power, the appellant, like his authors, nominated two deputies, William Veitch and William Allan, who accordingly acted as door-keepers, and drew the ordinary salary, with all the accessary emoluments.
By the 6th of Queen Anne, chap. 26. it is enacted, that the “Court of Exchequer is hereby empowered, from time to time, to depute and appoint all such other officers, ministers, clerks, servants, and attendants; for the constituting of which there is no provision made by this Act, as shall be thought convenient for the use and service of the said Court, and for carrying on and dispatching of the business therein; subject and liable nevertheless to be suspended, punished, and removed; and to the taking of such oaths mutatis mutandis for the faithful execution of their respective offices, places, and employments, as herein before is provided for any of the officers, attornies, or clerks in the said Court of Exchequer in Scotland.”
In 1810 the Barons of Exchequer issued a warrant in favour of the respondent, James Robertson, by which “they appointed him messenger to the Court,” with a salary of L.60 per annum;
Page: 114↓
The Lord Ordinary assoilzied the respondents, “in respect that the defenders are paid by the public, and that their departments are distinct from those in the pursuer's charter; and in respect that this is an amicable suit for the purpose of ascertaining a question of right, and parties decline investigation into facts, dispenses with a representation.”
The appellant having reclaimed to the Inner-House, and averred, that the duties performed by the respondents were precisely those which fell to be discharged by him and his deputies, the Court appointed him to lodge a condescendence of his averments; and after having done so, their Lordships, on the 9th of March 1821, refused his petition, and adhered to the interlocutor complained of. *
The Court was of opinion, that, under the statute, the Barons were entitled to appoint persons to perform the menial duties connected with it: that the duties of the appellant, and his deputies, fell properly to be exercised within the walls of the Court, whereas those of the respondents were executed beyond them, and could not be considered as forming part of these to be performed by the appellant.
He then entered an appeal to the House of Lords, and contended,—
_________________ Footnote _________________
* Not reported.
Page: 115↓
1. That at the nature of his office did not impose upon him a mere individual duty as a single servant of the Court, but created him the head of a general department, having the controul of all the subordinate officers who were necessary to perform the services of the Court, the appointment of the respondents was an encroachment upon his rights; and that the statute expressly declared, that the “officers in that Court who have grants of their offices during life, or of inheritance, shall enjoy their offices according to the nature of their gifts.” And,
2. That he was ready to establish, that there was the most complete and perfect identity between the functions performed by the respondents, and those which he and his deputies were entitled to discharge, and had been in the practice of doing:
The House of Lords “ordered and adjudged, that the appeal be dismissed, and the interlocutors complained of affirmed.”
Solicitors: J. Campbell— A. Mundell,—Solicitors.
(Ap. Ca. No. 21. )
