A Sheriff depute being denounced at the horn, this was found not to exclude his substitute.
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Sir James Keith having received a deputation from the King to be Sheriff-depute of Forfar during his life, and the King having thereafter given a gift of the Sheriffship to this Earl of Southesk and his father, and the longest liver, during their life; they do also grant a deputation to Sir James during their life of the said office, with the emoluments thereof, with a power to substitute deputes; and, accordingly, he did substitute; yet this Earl of Southesk, by an act in the Court book produced, put in another depute, the act bearing this reason, that Sir James did not reside in the shire. Sir James did thereupon pursue the Earl and his depute for wrongous putting him and his substitute from the office and emoluments thereof. The defender alleged, 1mo, That he did no wrong in putting in another depute; because the pursuer, though he had a power of substitution, yet that could only be interpreted for singular occasions in his necessary absence; but did not liberate Sir James from the ordinary exercise of the office; therefore, Sir James having deserted the office, being several years in England, he was justly excluded therefrom, as having relinquished the same; 2do, Sir James was denounced, and his escheat gifted, whereby he could not stand in judgment, and so could not ordinarily exercise the office, and, in consequence, upon both these grounds, his substitute was excluded; 3tio, Sir James was malversant, not having relieved the principal Sheriff of making the æques, and of the taxations; and being a person insolvent, could not be allowed to intromit with the King's dues, countable by the Sheriff in Exchequer; 4to, Both by the nature of his office, and by his gift from the Earl, he is answerable for his substitute. Ita est, his substitute was malversant in not attending the ordinary diets of Court; and Sir James, or his depute, were malversant in causing condemn and execute two persons for theft unwarrantably; and though the Court book produced bears, that they were condemned upon their confessions judicially, yet it was offered to be proved, that they were impannelled before prior inquests, and were assoilzied; and yet, against law, a new inquest was called, and condemned them, though the verdict of the first inquest was not annulled. The pursuer answered, That, as to the æques and taxations, the not relieving the Sheriff thereof was no crime deserving deprivation; 2do, He produced receipts, bearing, that he had paid both during the time he or his deputes were suffered to serve; and, as to his substitute's non-attendance, or the unwarrantable condemnation of the two thieves, he oppones the Court book produced, wherein the sentence of both the thieves is set down, and their judicial confession; and there is nothing in the books to show any formal trial; likeas, the book bears, that his substitutes had sitten three or four days before the act admitting another in a tract of Courts before; and albeit a Sheriff might brevi manu exclude his own depute for not attendance, when he had long neglected Courts, yet there was no pretence to exclude a depute, constituted ad vitam by the King, before the Earl's right, and by the Earl himself; for though the Earl might have named a depute pro tempore, if the pursuer, or his substitutes, had not attended, or, after their long absence, had hindered them to return, yet it being clear by the book, that the substitute was recently in exercise of the office, the Sheriff-principal, at his own hand, could not put in another.
The Lords having, before answer, ordained the matter of fact alleged, to be proved, as either party desired, allowing them to be further heard at advising they found this was an act before answer, equivalent to an act of litiscontestation, and refused any new allegeances, or new probation, upon other acts of malversation, but prejudice to the Earl to insist thereupon, by way of action, as accords: And the Lords found, that Sir James's deputation by the King and the Earl was cumulative, that there was no desertion, or voluntary and wilful absence of Sir James, or his substitute, proved, and that his being denounced did not exclude his substitute, and that there was no malversation proved; and, therefore, decerned Sir James to be reponed, and appointed an auditor for the bygone emoluments.
Fol. Dic. v. 2. p. 292. Stair, v. 2. p. 872.*** Fountainhall reports this case:
In Sir James Keith of Caldham his declarator against the Earl of Southesk, for repossession to his place of being Sheriff-depute of Angus, or Forfar, from which he was illegally thrust by Southesk, and another placed by him as Sheriff-principal, as also for the bygone emoluments; Southesk alleged, 1mo, Sir James deserved deprivation; for he became furious and hypochondriac, and unfit to exerce; 2do, He deserted it, and staid at London three years; 3tio, He committed many injustices, and hanged one for a thief without probation; for the assize having cleansed him, he forced them again to re-inclose, contrary to the 97th act, Parliament 1587, and to return him guilty; and condescended on sundry other malversations. Answered to the first and second, His misfortune, is not to be objected nor upbraided now, when he is sober; and he had a depute who served for him; and, as to his malversations, denied the same. And probation being led upon the several points, and advised by the Lords this day, “They found the, malversations not proved; and, therefore, repelled the Earl's defences, and reponed Sir James to his office: And, further, (which was not expected by any, but that the bygone fruits would have been found bona fide percepti,) the Lords ordained the Earl to, account to Sir James for the bygone emoluments and profits of the place, during the time he had been debarred by him.” —See a decision, somewhat contrary to this, in Durie, 17th February 1624, Thomson, No 17. p. 1737.
Yet my Lord Southesk thinks his own declarator is entire, and reserved to him; so that, if in it he prove any relevant malversations against Sir James, the Lords will yet receive them, and deprive him. Sir James not being yet fully cured of his distemper, it was thought the Lords should not have reponed, but only given him a competent annuity or aliment out of the office, during his life.
