Scottish Court of Session Decisions

Subject_1 JURISDICTION.
Subject_2 DIVISION V.

Inferior-Courts.
Subject_3 SECT. I.

Jurisdiction with regard to Ejection. - Improbation. - Contravention. Process of Transference. - Clandestine Marriage.

John Greig, Journeyman Wright in Edinburgh,
v.
The Magistrates of Haddington

Date: 11 February 1725
Case No. No 203.

Damages and a penalty were claimed for an irregular judgment of an inferior judge. The decree was reduced, but not even expenses were allowed to the pursuer.

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John Greig being fined by the Magistrates of Haddington for an irregular marriage with Elizabeth Calderwood a burgess of that burgh, he raised reduction of the decreet, and concluded repetition of the fine and damages, with expenses, upon the following grounds; 1mo, That he was not subject to their jurisdiction, and was only accidentally at Haddington visiting his wife's relations; 2do, That they repelled a just defence of res judicata, he having been fined by the Justices of Peace of Mid-Lothian; and upon both these grounds he contended, that they had committed iniquity, and were guilty of manifest injustice and oppression.

It was pleaded for the Magistrates, That though the decreets of inferior judges may be reduced, yet it was unprecedented to make such judges liable in penalties for any mistakes which they might have committed in pronouncing their sentences; but particularly, the defences pleaded were justly over ruled: For, as to first, the crime was inchoat in Haddington, from whence Greig had seduced and carried off the said Calderwood. And further it was pleaded, That ubi res invenitur is a forum in crimes; and by the act 1695, cap. 12. all ordinary judges have a power of cognoscing, if they can cite or apprehend the party; for it provides, That action and execution shall pass, either at the instance of the parties concerned, or of the procurator fiscals of the jurisdiction where they shall happen to be questioned.

To the second defence it was answered, That the Justices of Peace had no power to fine for irregular marriages, for no such power was contained in their original instructions, nor lodged in them by any subsequent law; and they were not a court which had an ordinary jurisdiction, but were only commissioners appointed for certain purposes, which appeared plain from the acts 1617, cap. 8. 1661, cap 38. and the act 1685, cap. 16. was repealed by the 28th act 1690: And besides, by the 8th act 1617, “the Justices were not to proceed to cite parties, till 15 days after committing the facts for which they were convicted, and that the ordinary Magistrates had neglected to exercise their right all that time.” And in the present case, the Magistrates pronounced sentence within the 15 days.

It was replied, That inferior judges were not at freedom to oppress the lieges, by repelling obvious and plain defences, but were punishable for such oppressive sentences, by 45th act, Ja. 1.; 76th act, Parl. 14. Ja. 11.; act 26th, James III. &c. And as to the particular answers it was replied, That what the Magistrates had fined Greig for, was not properly a crime, but simply a transgression of order, for which the transgressor was only liable to a civil fine, and the marriage was celebrated at Edinburgh; that the Magistrates of Haddington were not proper judges of the powers of the Justices of Peace; and that the 12th act 1695, gives the Justices a power to judge of questions of this nature, because the execution of that act is committed to such ministers of the law, who were by the 22d act 1693 ordered to assist in settling the quiet of the church, which extends to all officers of justice.

The Lords sustained the reasons of reduction against the decreet of the Magistrates of Haddington, but refused expenses.

Act. H. Dalrymple. Alt. Ro. Craigie. Clerk, Murray. Edgar, p. 167.