Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

George Cockburn
v.
Weems

Date: 9 February 1681

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George Cockburn having obtained a gift, of the King, of the cocket-office, empowering him to give cockets to all ships loosing in Fife; there arose a competion betwixt this gift and a prior gift given by the Exchequer, of the same office, to umquhile James Weems and his son James Weems conjunctly, and to the longest liver.

It was alleged for Cockburn, That the cocket-office, being a known fixed office, was only communicable by the King's gift under his own hand; and the commissioners of Exchequer have no power to gift the same.

It was answered, That though the commissioners of Exchequer had no special power to gift offices, yet they have a general power to manage the King's revenue, and consequently to do all things necessary for that effect: which extends to the cocket-office; seeing by the cocket the loading is known, and thereby the custom of the export.

It was replied, That though the Exchequer may give commissions, in so far as is necessary for administration of their own commission, yet that can extend to no fixed office; which the King himself can only gift: for, though the Lords of Session have the power of administration of justice, which necessarily requires clerks and macers, yet they cannot gift the place of a macer, neither can the council name their macers. So that the giving of cockets not being an ambulatory commission, but a settled office at the King's gift, the Exchequer cannot gift it, unless they had special warrant, much less can they gift this office with a conjunction or substitution. 2do. Weems is inhabile, as being at the horn.

It was duplied, That being at the horn doth not incapacitate to exerce such an office; and Weems hath assigned it to the Lord Burntisland; and may exerce the same by a depute.

The Lords found, That Weems's gift not bearing a deputation, he could not make a depute. And having called for the commission of Exchequer, they found that this gift was not warranted thereby; and therefore preferred Cockburn upon the King's gift, unless Weems will prove, that, by long custom, the Exchequer hath been in use to give such gifts of the cocket-office as this formerly to others.

Vol. II, Page 857.