Recompence found due for a constabulary, of which a perpetual deputation had been granted to a town, exclusive of the principal's power of judging.
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The Lord Dun claimed a recompence for the constabulary of Montrose.
Objected, The claimant has conveyed his whole jurisdiction, by a perpetual deputation to the Magistrates of Montrose, expressly renouncing the power of judging, either byhimself, or by sitting with them, except when he shall be desired to assist them in the determination of difficult and arduous causes, so that there remains nothing with him; and the jurisdiction is saved to the town by the statute; or if it be not, they have not claimed.
Answered, The claimant is constable, and the Magistrates only his deputes, and as such expressly bound to fence their courts, and issue precepts in his name; so that if the principal jurisdiction is abolished, it is impossible the deputation can subsist. The Magistrates have lost what share of the recompence might have belonged to them by not claiming, the consequence whereof ought to be, that the Lord Dun should be considered as having the full right in him, for the Advocate cannot plead upon the right of a third party; but supposing the Magistrates had claimed, or it should be found the deputation is saved to them, the claimant has still a valuable right, as he might act in case of a vacancy in the Magistracy.
The Lords found the claimant entitled to a recompence.
Fol. Dic. v. 3. p. 363. D. Falconer, v. 1. No 244. p. 330.
