Scottish Court of Session Decisions

Subject_1 JURISDICTION.
Subject_2 DIVISION VIII.

Commissary Court.
Subject_3 SECT. III

Commissaries are limited that they cannot Judge in causes above a certain sum.

Gordon
v.
M'Heugh

Date: 6 February 1624
Case No. No 284.

Commissaries, in matters secular, cannot be judges to admit probation, other than by the defender's oath, except the value of the cause exceed not L. 40, Scots. If the matter be not ecclesiastical, and exceed L. 40, they may judge in it, referring to the defender's oath, but the subject must not exceed 100 merks. If it exceed that sum, and be secular, the Commissaries are not competent judges, although referred to oath.

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In an action betwixt Gordon contra M'Heugh, the Lords found a decreet given by the Commissary of Wigton, decerning a party to pay the prices of certain victual, which he was obliged to deliver to the pursuer of that cause, to be null, by way of objection in the suspension then discussing betwixt the parties, because the same was in a matter civil, viz. for prices of victual, which was not proper to an ecclesiastic jurisdiction; and that it was supplied by alleging, that albeit, of its own nature, it was civil, yet seeing it was referred to the defender's oath, in that respect the Commissary was a judge competent. The Lords, nevertheless that it was referred to the defender's oath, found it null, because the decreet was for a greater sum than whereon the Commissary could decern, the matter being civil, to wit, extending to 120 merks; for the Lords found, that the Commissaries, in matters which were not ecclesiastic, could not be judges to admit any probation, but the defender's oath, except in matters which exceeded not the value of L. 40, within the which quantity they might receive probation by witnesses, and otherways, albeit the subject was not in a matter ecclesiastic; and if the matter were not ecclesiastic, and exceeded L. 40, they might also be judges thereto, the same being referred to the defender's oath, if the subject exceeded not 100 merks; but if it exceeded 100 merks, and was civil, albeit referred to oath, the Commissaries were not judges thereto; for if they were admitted to judge upon civil matters exceeding 100 merks, they might, upon pretext of referring of matters to the defenders oaths, draw all actions in before them which were absurd.

In this same above-written process, the Lords found the Commissaries decreet null, because it was given in time of the harvest vacance, and the decreet bore not that it was given by virtue of a dispensation; and the Lords would not sustain the answer made by the party, whereby he alleged, that the Commissary had dispensation, seeing they found that the decreet ought to have made mention and proported the same, and so not bearing the dispensation, being given in August, was found null for that cause.

Act. Belshes. Alt. Cunninghame. Fol. Dic. v. 1. p. 505. Durie, p. 107. *** Haddington reports this case:

In an action betwixt Gordon of Tanister and M'Culloch, the Lords found, that the Commissaries might not keep courts in vacance without the Lords dispensation; and if they sat by dispensation, their decreets given by that warrant should bear the same. It was farther found, that the Commissaries of Edinburgh might not be judges in a civil cause of debt, upon pretext that the pursuer referred the summons to the defender's oath, if the sum exceeded an hundred merks; because, by that colour, all actions of debt might be drawn before them from other judges; and therefore the Lords found the decreet given by the Commissary of Kirkcudbright, for six bolls of bear at L. 20 the boll, null.

Haddington, MS. No 2993.