M'Ewan v Muirhead
| Jurisdiction | Scotland |
| Judgment Date | 28 May 1852 |
| Date | 28 May 1852 |
| Docket Number | No. 14 |
| Year | 1852 |
| Court | Court of Session (Inner House - First Division) |
Lord St Leonards C.
Judge—Decree—Interlocutor—Church.—
A SCHOOLMASTER was deposed from office by a Presbytery acting under the Schoolmasters' Act. The Presbytery's deliverance sustaining the libel as relevant, allowing a proof, and granting warrant to cite witnesses, was signed by no one. The judgment finding the charges proved, and pronouncing deposition, consisting of eleven pages, was not signed on each page or each sheet; it was only signed on the sixth, eighth, and eleventh pages by the moderator. These, and other deliverances, were afterwards engrossed in the Principal Presbytery Records; but these latter were not signed by the moderators of the meetings by whom the deliverances were pronounced; they were attested merely by the signature of the person who happened to be moderator when they were read and approved of.
The schoolmaster, in a reduction, objected to the sentences and deliverances, on the ground that they were not signed in terms of the Act 1686, c. 3, which enacts, that ‘all interlocutors pronounced by the Lords of ‘Council and Session, and all other judges within the kingdom, shall be ‘signed by the President of the Court, or the judge pronouncer thereof.’ The Court of Session sustained the sentence of the Presbytery, and repelled the reasons of reduction.
On appeal, the Lord Chancellor seemed inclined to hold that, as sentences not signed in the terms pointed out by statute were not declared null, and as the second part of the statute enacted that ‘the extracts’ of unsigned sentences shall be null, the first part of it was directory, and the second merely, as to not giving out excerpts, imperative. That, 2dly, the statute was not meant to extend to sentences pronounced by Presbyteries, but only to the sentences of the civil courts. But, 3dly, even though it did, yet the usage which followed on the statute supported the judgment of the Presbytery. This was an ancient statute, of no very clear import, which must be construed by the practice which has followed on it, and which was proved by the Acts of the Presbyteries in Scotland,—by submission to these acts without challenge,—all this being proved by the report as to the practice in Scotland given by Principal Lee. 4thly, Even though usage were insufficient, yet there was in truth and substance a compliance with the Act of Parliament. The Act does not require that sentences should be signed on the day of...
To continue reading
Request your trial
-
Public Choice Theory and the International Harmonization of Antitrust Law
...and Hybridization in AntitrustEnforcement: European "Borrowings" From the U.S. Approach, in thisissueofThe Antitrust Bulletin.15 [d.16 [d.17 Public choice theory 431II. Tying these themes together throughpublic choice theoryWhere then lies the essential unities of these seemingly diverseapp......