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The defenders protested against the pursuer's appointment to the office of clerk, and, in virtue of their commission, continued to uplift the fees leviable by them as clerks.
The Lord Ordinary having closed the record, ordered cases; and thereafter, (14th January 1840,) ‘in respect of the general nature of the case, as depending on the consideration of the legal powers of a high officer of Chancery,’ reported the cause to the Court. In their cases the parties respectively referred to the subjoined authorities .
We are therefore of opinion, that while Lord Rosslyn had the power of nominating a clerk or clerks of Chancery, the usage, which is uniform as far back as it can be traced, and at least from 1677, was, that these commissions were for the life of the clerk.
We are therefore of opinion, that the defences in the present action should be sustained.
Lords Jeffrey, Cockburn and Ivory .—The question is, whether, posterior to the 57 Geo. III. c. 64, the late Earl of Rosslyn could, as director of Chancery, lawfully appoint a clerk or two ‘during their respective lives, and the survivor of them,’ by a commission which was to remain in force in their favour after his own death?
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