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Robs, apothecary in Aberdeen, having obtained a decreet before the Provost and Bailies of Aberdeen, against one Liddel, for £. 140, he dying, his executors confirmed and transferred that decreet before the Commissary of Aberdeen, and charged the debtor, who suspended as not being lawful to the Commissary to transfer the same. The Lords found that no judge had power to transfer another Judge's decreet, who was not subordinate to him.
Spottiswood, p. 340.*** Durie reports this case:
In a suspension betwixt Liddel and Robbs, whereby a decreet was desired to be suspended, which was transferred before the Commissary of Aberdeen, the principal decreet being recovered before the provost and Baillies of Aberdeen; in the which suspension, the Lords found the reason thereof relevant, and the decreet of transferring foresaid, given by the Commissary of Aberdeen, to be null, because the Lords found that the Commissary's power and jurisdiction extended not to transfer the decreet and sentence obtained before any other Judge; likeas they found, that no inferior Judge had power to transfer the decreet given and pronounced in another inferior Judge's Court; for albeit a Judge might transfer the sentence, in some cases, given in his own Court, yet he had not that power, in sentences pronounced in other Courts, but such transferrings ought to be sought in the sovereign Courts, to which the other judicatories were subaltern. And this was found, albeit the decreet of transferring was desired to be maintained, as properly belonging to the jurisdiction of the Commissary, and as being a consistorial matter, because the decreet was transferred active, only in the executors of the defunct, obtainer of the sentence, and so pertaining to the executors, therefore the commissary was Judge; which was repelled.
Act. Mowat.Alt. Nicolson, younger.Clerk, Gibson.
Durie, p. 124.
