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Scottish Court of Session Decisions >>
Mathew Paterson and Others v Robert Ross and Thomas Urquhart. [1696] Mor 7579 (1 July 1696)
URL: http://www.bailii.org/scot/cases/ScotCS/1696/Mor1807579-292.html Cite as:
[1696] Mor 7579
Commissaries are limited that they cannot Judge in causes above a certain sum.
Mathew Paterson and Others v. Robert Ross and Thomas Urquhart
Date: 1 July 1696 Case No. No 292.
An adjudication on a decree cognitionis causa, recovered before the Commissaries, for a thousand merks, found null.
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Halcraig reported the competition between Mathew Paterson, and other creditors of James Cuthbert in Inverness, against Robert Ross and Thomas Urquhart there. Objected against Ross and Urquhart's adjudications, that they proceed upon a null decreet cognitionis causa, because the sum being 1000 merks and upwards, the debtor was pursued coram non suo judice, viz. the Commissaries, who are incompetent above L. 100 Scots, by the regulations 1666, recorded in the books of Sederunt. Answered, 1mo, Wherever there is interpositio juramenti, the Commissaries are competent, though the sum be great; 2do, Custom has founded their jurisdiction by a general practice; 3tio, There are real diligences led on this decreet, and it is hard to cause them adjudge of new; for then they are without year and day, and so would lose their debts. Answered, This topic, where an oath intervenes, has been expressly urged, and repelled, and the Commissaries' decreets found null, where they exceeded L. 40; as appears from Durie; Gordon, No 284. p. 7573; Irving, No 25. p. 7309; Lindsay, No 286. p. 7575; Richardson, No 289. p. 7576; and there was no desuetude in this case that had altered the fixed boundaries of these judicatories where they encroached upon one another's province; and the leading adjudications could not sustain the null decreets, nam sublato fundamento corruit accessorium. What if they had taken their decreets before the Admiral Court, the doing real diligence there could not validate and supply the original defect ? It is true, if the debtor had compeared either in the first decreet, or adjudication, and proponed other defences, that would have been a prorogation and acknowledgment of the competency; but here all the decreets were in absence, and against a minor, and so no homologation could be inferred. Some thought there was error communis here, qui facit jus quoad præterita, else many diligences might, by this interlocutor, be subverted. Others thought in modum pænæ, for not electing a competent judicatory, it were just to lop off the penalties, and other advantages, (as uses to be done where apprisings are informal) and let it subsist for the principal and annualrents; but the plurality preferred the other adjudgers simpliciter; and so, upon the matter, found the decreets null, in so far as they craved to come in pari passu with them.
Fol. Dic. v. 1. p. 505. Fountainhall, v. 1. p. 724.
