Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Hamilton of Wishaw
v.
Forbes, Sheriff-Depute of Aberdeen

Date: 8 January 1674

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The Sheriff-depute, being charged to make payment of the taxation of that shire, imposed in anno 1665, did Suspend, upon that reason;—That, by the Act of Convention, the Sheriff-principal, deputes, or their clerks, are empowered to collect. But so it is, that the Earl of Marshall, being Sheriff-principal before the suspender was admitted his depute, had appointed Mr James Kennedie, his Sheriff-clerk, collector; who accordingly had collected, and made payment, for two years together, before the suspender's admission, who had continued in office during the whole terms of the taxation; whereas the suspender was only in place the last terms of the taxation.

It was answered, That the Act of Convention, appointing the Sheriff-deputes, as well as the principal and clerks, to be collectors, they are liable to the king, in case any of them malverse. But so it is, that Kennedie, the Sheriff-clerk, had uplifted, and now become bankrupt; for which the suspender is liable, seeing he ought to have looked to his sufficiency; and all he can crave is to get a warrant to seek his relief.

The Lords did sustain the reason of suspension, and found, That, not only for the bygone terms before the Sheriff-depute's admission, but even for the subsequent terms, he could not be liable,—the clerk being appointed collector, whom he could not hinder, and who was approven by the general collector, and got payment from him; but if that term's taxation was not at all uplifted, they found the suspender liable to collect and count, the Sheriff-principal and clerk being now dead.

Page 392.