Urquhart of Meldrum, and Peter Hepburn, v. The King's Advocate,
Date: 1 March 1748 Case No. No 408.
Recompence due for a deputation of sheriffship, granted over a person's own estate.
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William Urquhart of Meldrum was proprietor of the estate of Cromarty, which had been resigned by George Earl of Cromarty, in favour of Kenneth M'Kenzie, his second son, “with the heritable and sole deputation of Sheriff, within, and in as far as might be extended to the whole bounds of the lands and estate of the foresaid Mr Kenneth, lying within the shire of Cromarty;” for which jurisdiction he claimed: And it was objected, That heritable deputations of sheriffships, over part of a shire, could not be granted.
Peter Hepburn, writer in Edinburgh, having adjudged lands in the said shire, which had been disponed with the like deputation, also entered his claim.
Pleaded for the claimants, It has been held immemorially as agreeable to the Constitution of this country, to grant offices heritably, and for the officers to grant heritable deputations. Lords of regality, ecclesiastic as well as laic, made heritable bailies different over separate parts of their estate, and these bailies gave heritable deputations to different persons over different parts of their bailiaries. Such a deputation was the original of the sheriffship of Nairn, found to belong to the family of Calder, as the first title produced for that family is a precept 1405, by Robert Duke of Albany, for infefting Andrew heir of Donald de Kaldore, in the office of Sheriff of Nairn; and the next a precept 1442, by Alexander de Isle Earl of Ross, to the Sheriff-depute of Inverness, his bailie in that part, for infefting William de Kaldore, as heir to his father Donald, in the sheriffship of Nairn, held of him in capite; which thus appears to have been a deputy-sheriffship held of the Sheriff of Inverness; and that sheriffship being forfeited by the Earls of Ross 1476, a charter of Nairn was granted by the King to Hugh Kaldore, on the resignation of the foresaid William his brother.
A charter of the sheriffship of Inverness was granted 1508 to the Earl of Huntly, with power to him to name Sheriff-deputes within the bounds of Caithness, Ross, Lochaber, and in other distant parts.
The shire of Bathgate was part of the shire of Renfrew, the sheriffship whereof belonged to the family of Semple, and was by them resigned 1530, in as far as concerned the bounds of the barony of Bathgate, in favour of Hamilton of Trynart; and it is probable, all the little sheriffships were originally deputations from the Sheriffs-principal of the larger adjacent shires, before these bounds were erected into principal shires themselves.
The act of Parliament, in consequence whereof the whole claims are entered, makes express mention of Sheriff-deputeships.
Pleaded for the King's Advocate, The division of the nation into shires is part of the public Constitution thereof, according to which it is represented in Parliament; and the Sheriff is the King's ordinary Judge over his district, which it were contrary to polity he should be allowed to parcel out by partial deputations. Writs for election of Members of Parliament are directed to the Sheriff of the whole shire, who also was, of old, the executor of apprisings, and other legal diligences, which are now committed to messengers, as Sheriffs in that part; and still it belongs to him to summon jurors to attend on the Circuit Courts of Justiciary, and to execute the writs issuing out of the Court of Exchequer; all which cannot be done by deputes over particular territories. The Sheriff's office is to govern the territory committed to him, and to provide for the quiet and security thereof; for which purpose, he may ride with gatherings of the lieges, which no other person is allowed to do; and to communicate this power to others, over their own estates, would tend to promote these disorders, which it is a main part of the Sheriff's office to prevent. The Courts ought to be held at the head burgh of the shire, which can only fall within one depute's territory; and the nature of the jurisdiction itself is different from the other heritable jurisdictions, which were originally created in favour of the grantees, who therefore may, by resignation, put an end to them, without consent of the vassals over whom they are constituted and it may be consequent thereto, they should have a power of dividing opposing and of them at their pleasure.
For the claimants, The grant of a deputation does not exempt form the jurisdiction of the principal, so that these parts of the Sheriff's office, which have a general relation to the whole shire, may be performed by the Sheriff-principal, or a General-depute. Head Courts are, indeed, confined to the head burghs; but ordinary Courts, for jurisdiction, may be held anywhere. Writs issuing from superior Courts are directed to the Sheriff-principal, who must send them to his particular deputes, for whom he is answerable.
The Lords found the claimants entitled to a recompence.
Fol. Dic. v. 3. p. 363. Falconer, v. 1. No. 247. p. 331.
