Scottish Court of Session Decisions

Subject_1 PUBLIC OFFICER.

The Commissary of Glasgow
v.
The Clerk and Fiscal

Date: 18 July 1676
Case No. No 13.

A Commissary Clerk not obliged to relieve the Commissaries of the contribution money due to the Commissaries of Edinburgh.

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The Commissary of Glasgow being distressed by a decreet against him, at the instance of the Archbishop of Glasgow, for relieving the Archbishop, and paying the proportional part due by the Commissaries of Glasgow, of contribution payable to the Commissaries of Edinburgh, to whom the confirmation of all testaments exceeding 100 merks did belong, and were communicated to all the Commissaries, for which all the Commissaries in Scotland pay a contribution yearly to the Commissaries of Edinburgh; and seeing the benefit of the confirmation of these testaments redound, not only to the Commissaries, but to the Clerks and Fiscals, who, by the injunctions agreed upon by the King's warrant, recorded in the books of Sederunt, have the benefit of the third of all confirmations, with the burden of furnishing of wax, paper, and chamber-mail; therefore, as they have a benefit by the communication of the larger testaments they ought to bear a proportional part of the burden; the defender alleged, Absolvitor; because the said injunctions bear expressly, that the inferior Commissaries shall pay the contribution to the Commissaries of Edinburgh, and that their Clerks and Fiscals shall have the third of the benefit of all confirmations, beside the quot, with the burden of the chamber-mail, wax, parchment, and paper; so that the Commissaries are only charged with the contribution money, and are free of the charges of chamber-mail, wax, and paper; and, therefore, the Clerk and Fiscal must be free of the contribution money.

Which the Lords found relevant, and assoilzied the Clerk and Fiscal therefrom.

Stair, v. 2. p. 452. *** Gosford reports this case:

The Commissary being decerned to relieve the Archbishop of Glasgow of the sum of L. 224 yearly, as contribution money paid to the Commissaries of Edinburgh, did pursue the Clerk and Procurator-fiscal of the commissariot of Glasgow, to relieve him of the equal half of the said sum, and that it might be declared, that all succeeding in these places should relieve the Commissary for the time of the half of the contribution money; it was alleged for the defenders, That the pursuit was altogether groundless; because, by the decreet-arbitral 1609, the contribution money is expressly laid upon the Archbishops and Bishops, who, by their instructions to their respective Commissaries, in anno 1666, and ratified by his Majesty, they burdened only the Commissaries for their relief; and, as to the Clerk and Procurator-fiscal of inferior commissariots, there is a special burden put upon them, for payment of fifteen shillings for each testament confirmed, where the dead's part exceeds L. 120, which they are to pay to the commissariot of Edinburgh, and which they were to pay during their lifetime only; which clearly imports, that no burden could be imposed upon any succeeding Clerk or Procurator-fiscal; likeas, by the injunctions 1610, the Clerks and Fiscals of inferior Courts are ordained to relieve the Archbishops or Bishops of the duties payable to the Clerks and Procurators of the commissariot of Edinburgh; but, as to the contribution money due to the Commissaries, there is no mention at all thereof. It was replied, That, by the last injunctions, imposed in anno 1666, the whole benefit of the Commissariot Court being divided, viz. two parts to the Commissary, and a third part to the Procurator-fiscal and Clerk, and the compositions of testaments being equally divided amongst them, their burdens should be accordingly proportioned, and each of them have their own share, conform to that general maxim in law, quem sequitur commodum eundem et incommodum.—The Lords did consider this case as a leading case to all commissariots; and, in respect that the decreet-arbitral, and injunctions ratified by his Majesty, were inserted in the books of Sederunt of the Session, whereby the contribution money was only stated to be due by the Commissaries, without making any mention of relief by the Clerk of the commissariots, who had their own distinct burdens; therefore, they found that they ought to be assoilzied from this pursuit; and that their case should not fall under that general maxim of law, which can give the rule to decide only in societies, or in re communi, where the profits were never divided by law, or statute, or agreement betwixt the parties; whereas, the proportions of burdens, in this case, were distinguished by injunctions, decreets-arbitral, ratification, and universal custom, which left no place to a new division, answerable to every member's pain and employment, which could produce inextricable trouble and uncertainty.

Gosford, MS. No 883. p. 564.