WILLIAM MACDONALD and ALEXANDER ROBERTSON v JOHN M'INTOSH and PATRICK SMALL (Court of Session)

But the Court, after hearing counsel upon a reclaiming note for the respondents, being of opinion, that the preliminary defence should be disposed of in the first place, ‘recalled, in hoc statu, the interlocutor of the Lord Ordinary, and remitted the case to Lord Corehouse, in place of Lord Meadowbank, to determine on the preliminary point of the complainer's privilege, as a member of the College of Justice,’ &c.

Lord Corehouse ‘having heard counsel for the parties, found, that Mr Macdonald, as a member of the College of Justice, was entitled to decline the jurisdiction of the Sheriff; therefore advocated the cause, &c., and found expenses due .’

Lord Balgray observed—That whatever might have been the origin of the privilege enjoyed by members of the College of Justice, it would be found, that it had, at all times, and in all cases in which it had been pleaded, been sustained by the Court. It ought to be observed, however, that this privilege extended only to the case of civil rights. It afforded no protection to members of the College of Justice as to wrongs or delinquencies committed by them. In such cases they were liable to be called before the ordinary local jurisdiction.

The Lord President and Lord Gillies concurred.—The former remarked, that it was competent for a Sheriff, in the case of wrongs committed by a member of the College of Justice, to grant an interdict; but in a civil action, of the nature of the present, he had no jurisdiction. There was no distinction made in practice, or in the decisions of the Court, as to whether parties pleading the privilege were practising members or not; and with regard to serving on juries, an express clause in the statute was held necessary to limit the exemption to such as were practising members.

Lord Corehouse, Ordinary. For the advocators, Dean of Fac. (Hope,) J. S. More. David Watson, Agent. Alt. Rutherfurd, Ivory. Gibson-Craig, Wardlaw & Dalzell, Agents. H. Clerk.