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By section 140. it is ‘provided always, That a record shall be preserved of the charge and of the sentence pronounced, and no fees shall be exigible from the said Commissioners in any action pursued at the instance of the intendant of Police, but the said Commissioners shall make a suitable allowance on that account to the clerk of court, without prejudice to his receiving his fees, where fines and expenses are decerned for and recovered from offenders.’
By section 35. it is enacted, ‘That it shall be the duty of the said Commissioners, and they are hereby authorised and empowered to appoint a clerk, collector, treasurer, assessor, intendant, and all other persons necessary, towards the execution of this act,’ &c. ‘and generally to execute the whole matters by this act committed to their charge.’
Mr Veitch died upon the 15th of January 1837, and upon the 21st, the suspender was appointed by the Provost, Magistrates and Council of Leith to be their town-clerk.
By the Burgh Reform Act, the mode of the appointment of the Magistrates of Leith, as well as of the town-clerk, after the death of the incumbent, was changed. The appointment of the Magistrates and Council was placed in the hands of the registered electors, and the appointment of a town-clerk was placed in the hands of the Council. The suspender, in virtue of these different appointments, officiated as clerk to the Police Court. He attended in court daily, and was in possession of the records of court.
The Commissioners of Police met on the 27th January, and by a majority passed a resolution, to the effect that they had a right of appointment to the office of clerk to the Police Court, and thereafter proceeded to elect the respondent, Mr Harvie, to the office. Mr Anderson presented the present bill of suspension, craving interdict. The Lord Ordinary granted an interdict, and upon advising the bill with answers, passed the bill of suspension, and continued the interdict, on the ground stated in the following note:
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