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O, a Sheriff Court agent, held a gratuitous commission to act as Sheriff-Clerk Depute in the absence of the Sheriff-Clerk and his paid depute, qualified by the declaration that he should not take part in any case in which he himself was employed as agent. A suspension of a charge on two decrees pronounced in an action in which O had acted for the pursuer was brought, on the ground that he held the commission above mentioned, though it was not alleged that he had acted as clerk in the process in question. The Lord Ordinary (
Rutherfurd Clark ) refused to suspend, and his judgment was acquiesced in.
This was a suspension of a charge upon two decrees pronounced in the Sheriff Court of Fife.
The facts of the case and the ground of judgment are sufficiently set forth in the following note to the interlocutor of the Lord Ordinary (
Rutherfurd Clark ) repelling the reasons of suspension:—“ Note—This is a suspension of a charge given on two decrees pronounced by the Sheriff of Fife-shire, the one dated 29th July and the other 15th November 1878. Several grounds of suspension are stated, but the minute lodged by the suspender has limited them to one.
The respondent was the pursuer in the Sheriff Court. Mr Osborne, a writer in Cupar, acted as his agent; at the same time he held a commission as Sheriff-Clerk Depute; but it is qualified by the declaration that he shall not act as Clerk of Court in any case in which he is himself employed as agent. It is not alleged that in the process in which the decrees in question were pronounced Mr Osborne acted as clerk. But the suspender maintains that the fact that he held a commission as Clerk of Court is sufficient to nullify the decrees.
It has been explained—and the fact was not disputed—that the commission issued in favour of Mr Osborne was purely gratuitous and honorary, and that it was merely intended to enable him to act in an emergency when the Sheriff-Clerk and his paid depute were, as they occasionally might be, necessarily absent.
The sole question is, whether the decrees are null? The suspender founds both on the common law and the Act of Sederunt of 1783, and he has referred to several decisions in which a breach of the common law and of the Act resulted in the nullity of the whole proceedings. But it is to be observed that in all these cases there was not only the capacity of acting in incompatible offices, but such action itself. Here it was not so, nor indeed did the form of Mr Osborne's commission admit of it.
The Act of Sederunt does not declare a nullity, and in those cases where a violation of it has resulted in the violation of the whole proceedings, this must be due to the operation of the common law, of which indeed the Act professes to be declaratory. But it seems to the Lord Ordinary that the common law would not annul a decree unless it had been obtained in a manner which was incompatible with the fair administration of justice, or which at least suggested a doubt that justice had not or might not have been done. There is nothing in this case to indicate that the suspender has suffered or could have suffered any injustice.
The Lord Ordinary does not wish it to be understood that he approves of a practising agent holding an appointment as Clerk of Court, even though his commission contains the qualification above noticed. He thinks that the inconvenience to which Mr Osborne owes his appointment might be remedied in some less objectionable manner. But it seems to him that the respondent should not lose the benefit of the decree on the only ground on which it is now impeached.”
The interlocutor was acquiesced in.
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* Decided 18th February 1879.
Counsel for Complainers— Rhind. Agent— W. Officer, S.S.C.
Counsel for Respondent—Agents— Boyd, Macdonald, & Co., S.S.C.