Power of advocating Causes. - Power of advocating from one Court to another, where the Court of Session itself has no jurisdiction in the Cause.
M'Intosh v. The Sheriff of Inverness
Date: 21 February 1666 Case No. No 124.
The Court of Session competent to advocate a criminal cause from the sheriff to the Justice-general.
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M'Intosh being pursued for theft-boot before the sheriff of Inverness, upon the old act of parliament James II. bearing, that whosoever should compone with a thief for stolen goods, should be liable in theft-boot, and punishable as the thief or robber; he raises advocation on this reason, that the act was in desuetude, and the matter was of great moment and intricacy, what deeds should be counted theft-boot, whereunto no inferior Judge ought to decide, because of the intricacy. It was answered, That the Lords were not competent judges in crimes, and therefore could not advocate criminal causes from inferior Courts; and the Earl of Murray being sheriff, and having sufficient deputes, both should concur in the careful deciding of the cause. It was answered, That albeit the Lords did not judge crimes, yet it was competent to them to advocate criminal causes, ad hunc effectum, to remit them to other more competent unsuspected judges.
The Lords advocated the cause from the Sheriff, and remitted the same to the Justice, because of the antiquity of the statute, and intricacy of the case.
Fol. Dic. v. 1. p. 497. Stair, v. 1. p. 362.*** Newbyth reports this case:
1666. Feb. 11.—The Procurator Fiscal of Inverness having intented action before the Sheriff of Inverness and his depute, against Angus M'Intosh, for committing theft-boot, contrary to the 2d act of parliament of King James V. in so far as his master, Kenneth, having stolen, in the year 1654 or 1655, certain goods, the said Angus M'Intosh seized upon and attached the said thief, and accorded with him for six cows for theft-boot, and therefore dismissed the thief without putting him to underly the law; and therefore the said M'Intosh hath committed theft-boot, and ought to endure the punishment due by the laws and practice of this kingdom of the thief and robber;—the cause being advocated upon several reasons, such as the partiality of the Judge, and that the act was arbitrary and gone in desuetude, not falling under the cognition of an inferior Judge; the Lords would neither advocate the cause to themselves, nor remit it back to the Sheriff, but referred the same to the Justice-General, it being for theft-boot and criminal, founded upon old acts of parliament.
