Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.

Charles Inglis
v.
Robert Waddel

Date: 18 June 1766

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The nomination of the clerk to the bills formerly belonged to the Lord Register; but, ever since the year 1730, it has been assumed by the Crown, and the practice has been of a great while to nominate two conjunct clerks of the bills, with power of naming deputes for whom they should be answerable. Two of these conjunct clerks did, in the year 1713, nominate a depute to officiate during his life, and the practice of naming deputes for life has been constant and uniform ever since. And among others, Charles Inglis, present clerk of the bills, was named in that manner depute; but both the principal clerks who named him being now dead, Robert Waddel, one of the two named in their place, insists in a reduction of Charles Inglis’s nomination, as having fallen by the death of his constituents.

Charles Inglis’s defence was, 1mo,—That his office, was, by its nature, an office during life; and he having got it in that manner, it must subsist notwithstanding the death of those who granted it. 2do, That Robert Waddel, one of the principal clerks, had no right to insist in this action by himself, not only without the concurrence of the other clerk, but in opposition to him.

As to the first, Pitfour was of opinion that this office, being an office which required skill and a particular education, was, of its nature, a liferent office, independent of the practice. That, for the same reason, the office of principal clerk of Session was always during life, even when they were named by the Clerk Register; and for the same reason the depute-clerks of Session are during life, though named by the principal clerks; and the sheriff-clerks, though named by the keeper of the signet. But the rest of the Lords were of a different opinion upon the general point, and thought it was impossible that a man who had only his own office during life, could name a depute who was to officiate after his death; and they distinguished betwixt a power of deputation of the same office, and a power of nomination to other offices annexed to any great office, such as the nomination of the clerks of Session, annexed to the office of the Lord Register, or the nomination of sheriff-clerks, annexed to the office of keeper of the signet, or the nomination to so many benefices, annexed to the office of Chancellor of England. But they put their opinion upon the practice, and the decision of the Court was repelling the reasons of reduction; dissent. Coalston and Auchinleck, who thought the practice was not sufficient to alter the common law, especially as there might have been private bargains betwixt the depute and the succeeding principal clerk; and, besides, those deputations were latent deeds not put upon record nor publicly known, and which therefore ought not to alter the public law.