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Scottish Court of Session Decisions >>
James Deanes v Alexander Bothwel. [1669] Mor 7577 (5 February 1669)
URL: http://www.bailii.org/scot/cases/ScotCS/1669/Mor1807577-290.html Cite as:
[1669] Mor 7577
Commissaries are limited that they cannot Judge in causes above a certain sum.
James Deanes v. Alexander Bothwel
Date: 5 February 1669 Case No. No 290.
The Commissaries having fined a defender in a process of slander in L. 200 Scots, the Lords sustained the decree.
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Alexander Bothwel of Glencorse, being convened before the Commissaries of Edinburgh, for slandering James Deanes, procurator before the Commissaries, in calling him a false knave, publicly in the Parliament House, and at the Cross; the same being proven by witnesses, he was decerned to stand at the kirk door of Glencorse, where both parties dwelt, and acknowledge his fault, and to pay L. 100 to the poor, and L. 100 to the party. Bothwel suspends on these reasons; 1st That the Commissaries could not ordain him to stand at a congregation. which is an ecclesiastical censure; 2dly, That they could not also fine him to the poor, nor decern any thing to the party, but the expences of plea, seeing there was no other damage libelled nor proven; 3dly, That the witnesses were not habile, being the pursuer's own servants. The charger opponed the decreet, wherein the suspender was compearing, and objected nothing against the liability of the witnesses then, and therefore cannot now quarrel their testimonies, and that it was most proper for the Commissaries to cognosce upon slander or defamation, neither was his standing in order to repentance, but in order to restoring the party to his fame.
The Lords repelled the reasons, and sustained the decreet in all points.
Stair, v. 1. p. 598.*** Gosford reports the same case:
Glencorse being decerned by the Commissaries of Edinburgh in the sum of 300 merks, and to make public reparation by standing at the kirk door of Glencorse, and confessing his fault to the church on a Sunday, for scandalizing the said James, and calling him false knave, did suspend upon the incompetency of the judge, and that kirk sessions were the only judges competent, and could ordain that manner of satisfaction; as likewise, that the mulct and fine was exorbitant, and more than an inferior judge could decern; notwithstanding whereof, the letters were found orderly proceeded.
