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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> The Magistrates of Montrose v. David Erskine of Dun, Esq. one of the Senators of the College of Justice [1738] UKHL 1_Paton_222 (12 February 1738)
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Cite as: [1738] UKHL 1_Paton_222
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SCOTTISH_HoL_JURY_COURT
Page: 222↓
(1738) 1 Paton 222
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
No. 44.
v.
Subject_Process. — Appeal—
It being objected that the Lord Advocate, who bad an interest in the cause, and who had been a party in the Court of Session, was not made a party to the appeal; and that the cause had not been finally determined in the Court of Session;—the appeal was dismissed.
James V. by a charter under the Great Seal, granted to Sir James Erskine of Brechin, his heirs and assignees, the right of Constabulary of the Burgh
Page: 223↓
The office not having been exercised for a considerable period, and the respondent's right to it, as well as the nature and extent of the jurisdiction being disputed by the magistrates of Montrose, he, in 1728, brought an action for having his right to the said office, with all its privileges, ascertained and declared.
In defence it was, inter alia, pleaded that the grant, being of an office in fee, was void in terms of an act of James II. (1455, c. 44.) “That there be nae office in time to come given in fee and heritage, and that the offices that are given since the decease of our Sovereign Lord that dead is, be revoked and annulled.”
It was answered that the statute founded on had gone into desuetude, there having been several offices granted in fee since that time; but at all events, that the objection was not competent to the magistrates, but only to the crown, who was not a party to the process.
The Lord Ordinary (July 8, 1730,) “repelled the defence founded upon the Act of James II. concerning jurisdictions in hoc statu, the crown not being in the process.”
The magistrates afterwards raised a summons, for the purpose of calling the Officers of State on behalf of the crown; and they likewise brought an action of declarator to have it found that the burgh of Montrose was exempted from any jurisdiction of the respondent.
The actions being conjoined, the Lord Ordinary, after various proceedings, pronounced an interlocutor, which, was adhered to by the Court, (14th
Page: 224↓
Thereafter the respondent was ordered to give in a condescendence of what further points of jurisdiction he claimed, which being lodged, the Lord Ordinary, (22d February 1734,) “allowed the council for the town to see and answer the same against the 1st June next; but allowed the pursuer to extract the decree already pronounced,” &c.
Entered Feb. 16, 1737.
Before, however, these answers were lodged, or any farther proceedings in the case took place, the present petition of appeal was brought from various interlocutors prior in date to that of 22d February above-mentioned.
Judgment, May 12, 1738.
The council for the appellants being directed to proceed, the respondent's council objected thereunto, and acquainted the House, “That notwithstanding the interest of the crown was concerned, yet his Majesty's Advocate for Scotland was not made a party to the said appeal.” And the appellants' counsel having been heard thereunto, the counsel were directed to withdraw. “And it appearing to the House, “That though the interest of the crown was concerned, and his. Majesty's advocate made a party below, yet the
Page: 225↓
It is therefore, ordered, &c. That the said petition and appeal be, and is hereby dismissed this house; and that it be, and is hereby remitted to the Court of Session in Scotland, for that Court to proceed in the cause according to law and justice, and to determine thereupon, with respect to the points which remain undetermined, and that afterwards the parties on either side be at liberty to appeal to this House, as they be advised.”