Scottish Court of Session Decisions

Subject_1 SUMMARY APPLICATION.

Sir Robert Anstruther, Baronet, and Robert Waddel, conjunct Principal Clerks to the Bills,
v.
Charles Inglis, Depute-Clerk to the Bills

Date: 24 July 1764
Case No. No. 17.

A summary application involving to the nature of the office of Clerk of the Bills found not competent.

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Sir Robert Anstruther and Mr. Waddel preferred a petition to the Court, which prayed their Lordships to take the case under their immediate consideration, and to appoint the said Charles Inglis (a member of Court) to put in his answers to the petition against such a day as their Lordships should think proper; and, upon the merits of the question itself, to find, That the petitioners were entitled to discharge the duties of their office personally, and that Mr. Inglis, as Depute-Clerk, is only entitled to be assistant and subservient to them in such branches of the business of that office as they should please to commit to him, excepting in the case of their absence; and, as a consequence of the premises, that the petitioners are entitled to take into their own custody and keeping, in an office which they had prepared for that purpose, the whole books, records, bonds of cautionry, consigned money, &c.; and therefore to ordain Mr. Inglis to surrender and deliver up these to the petitioners on inventory, or otherwise, as their Lordships should judge proper.

This petition having been ordained to be answered, Mr. Inglis did accordingly put in answers, asserting, That the view of the petitioners, in this application, was to deprive him of several fees which had been understood from time immemorial to be the proper fees of the Depute-Clerk; and insisting that he had right to officiate in the same manner, and to receive the same fees which he and his predecessors were in use to do, submitting, at the same time, to the Court, that a question of this kind was more properly the subject of a declaratory action than of a summary application.

“The Lords found the petition not competent; and therefore dismissed the same; reserving to the petitioners to insist against the respondent in a declarator or reduction; and reserving to the respondent his defences against the same, as accords.”

Act. Lockhart. Alt. M'Queen. Fol. Dic. v. 4. p. 310. Fac. Coll. No. 142. p. 332.