Scottish Court of Session Decisions

Subject_1 JURISDICTION.

Robertson
v.
Sir James Stirling, &c

1744, July 25.
Case No. No. 32.

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The question now turned chiefly upon the competency of the Court to enquire by suspension, Whether the Commissioners were qualified in the terms of law? in which question I had great difficulty upon moving the bill, but was determined by an observation in the answers, that if one not having authority should keep a man in captivity without pretence of law or in execution of this act he is indeed guilty of a high crime, but the remedy lies not in this Court. But Drummore and Justice-Clerk brought over again the first question, Whether we can review the same? and Justice-Clerk seemed to think, that if their judgment was doubtful we could not review, but if they were apparently iniquitous, we might. Upon putting the question it carried by the Presidents casting vote that we could not review upon iniquity The next question was, Whether we had jurisdiction to enquire if the Commissioners were qualified? and it carried seven besides the President to five that we had not; and therefore refused the petition and adhered. Kilkerran and Strichen did not vote in the first question, and Justice-Clerk, Drummore, &c. voted against it. But in the second, Justice-Clerk and Drummore voted for the interlocutor as a consequence of the first interlocutor, and yet Kilkerran and Strichen who would not vote in the first question, voted against the interlocutor in the second question, and Dun who voted for the first interlocutor voted against the second.

*** The following case is here referred to:

On a petition of a messenger at Glasgow who had been adjudged as a soldier on the late act, complaining that he had presented a bill of suspension to Strichen, on this ground that he was in no sense within the description of the act, and that Strichen refused to write upon the bill; we remitted to Strichen to refuse the bill, 18th July 1744.