Scottish Court of Session Decisions

Subject_1 JURISDICTION.

The Cases of Urquhart and P Hepburn.

1748, March 1.
Case No. No. 47.

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Mr Urquhart, who has an estate in the shire of Cromarty, particularly the barony of Cromarty, claimed the heritable Deputy-Sheriffships over their own lands which had been granted originally by Urquharts of Cromarty heritable Sheriffs of Cromarty,—and Hepburn, as adjudger (in trust I suppose) from Sir John Gordon, entered the like claim of Deputy-Sheriffship over the estate of Invergordon; and each of them pretended to 40 years possession except as to a part of Sir John Gordon's estate, whereof the heritable Deputy-Sheriffship was granted only in 1731. Some of us thought that the Sheriffships had, renitente jurisprudentia, in many cases been granted heritably, and though after the act 1455, yet sustained by us if confirmed by 40 years possession; yet heritable deputations were still worse, because the Sheriff was by law answerable for his Depute, who in that case might be a woman, or an infant, and therefore incapable to exerce. But splitting shires by such deputations over parcels of it seemed inconsistent with the nature of the office, the Sheriff-Court being the King's Court, and the Sheriffs and their Deputies the King's Judges over the whole province, and his Minister for executing the laws and the King's orders over the whole, which such a Deputy could not do; that none of these Deputies could have jurisdiction outwith his own bounds, and the Sheriff could not create another Depute within the bounds of the heritable Sheriffship, so that there never could be one Depute having jurisdiction over all the county, and therefore could not exercise any act of jurisdiction, nor any “other part of his office that behoved to be over the whole county, and therefore could not hold any Sheriff Head-Courts, &c. nor could they commit one to the county prison if out without the bounds of their jurisdiction, and they could not lawfully have any other prison; and whereas it was said, that the Sheriff-principal could hold Head-Courts, what would be the remedy if the Sheriff-principal was absent, either in the King's service or otherwise, or if a woman or infant were Sheriff-principal, and so incapable to act, and if positive prescription were proved the act 1617 was very strong, but as to a part of this there could be no prescription. However, upon the vote it carried to sustain these jurisdictions. For it were Drummore, Haining, Dun, and Shewalton. Against it were Minto, Monzie, Tinwald, and I, in the chair; but it came not to my vote. Arniston declined himself. Strichen and Murkle did not vote.