Macbeth v. Francis Troy and George Innes

Subject_1 Sheriff-Court Subject_2 Process Subject_3 Clerk of Process. Facts: Held that where a Sheriff-clerk is pursuer of an action in his own Court, neither he nor his Depute is entitled to officiate as Sheriff—clerk in such action.

This was an appeal from the Sheriff Court of Renfrew and Bute, in a petition for sequestration for rent, presented by Daniel Macbeth, writer in Rothesay. The petitioner was Sheriff-clerk at Rothesay, and the Sheriff-clerk-depute was his partner in business.

The respondent, Innes, pleaded inter alia —“Where a Sheriff-clerk is pursuer of an action in his own court, neither he nor his partner is entitled to officiate as sheriff-clerk in such action, and all procedure in this action in which either of these parties have acted or may act in the capacity of sheriff-clerk, is illegal and invalid, as being against public policy.”

On 5th July 1872 the Sheriff-Substitute ( Orr ) pronounced an interlocutor, in which he repelled the preliminary plea for the respondent.

The Sheriff is unable to concur in this opinion, after considering the whole cases referred to by the learned author, and the other decisions mentioned by the Lord Justice-Clerk in the case of Manson v. Smith .