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Scottish Court of Session Decisions >>
Cathcart v Irvine. [1684] Mor 3110 (17 December 1684)
URL: http://www.bailii.org/scot/cases/ScotCS/1684/Mor0803110-029.html Cite as:
[1684] Mor 3110
Informal execution. - Term of entry. - Sentence-money.
Cathcart v. Irvine
Date: 17 December 1684 Case No. No 29.
Altho', by the general custom of Scotland, sentence-money belonged to the judge, yet the Lords found, that the particular custom of a particular place derogated from the general; and that being proven, they preferred the clerk.
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James Cathcart of Carbiston, clerk of the Canongate, pursues Irvine his depute for the sentence-silver. Alleged, That by our law, and the custom of all courts, the sentence-money belongs to the judge, and not to the clerk. Answered, By a special custom in Edinburgh and the Canongate, it was a perquisite and a pendicle of the clerk's office; and it is but within these twelve months that the Magistrates of Edinburgh have, by their act, taken it away from the clerks, and annexed it to the bailie's office. ‘The Lords found the particular custom derogated from the general; and that being proven, they preferred the clerk.’
Fol. Dic. v. 1. p. 204. Fountainhall, v. 1. p. 322.
