Commissaries are limited that they cannot Judge in causes above a certain sum.
Lo Lindsay v. La Ayton.
Date: 18 January 1628 Case No. No 286.
Click here to view a pdf copy of this documet : PDF Copy
In a suspension betwixt the Lo. Lindsay and the Lady Ayton, of a decreet obtained before the Commissaries of St Andrews, for a house-mail in Cupar, pertaining to the Lo. Lindsay, possest by her; the Lords rejected that reason of suspension, bearing, that the sum decerned was an hundred and twenty pounds, and so out with the bounds of his proceeding, being a civil matter, viz. for house mails, albeit referred to the parties oath, seeing he could not judge by oath, where the matter exceeded forty pounds.; notwithstanding whereof the decreet was sustained, being for three terms of an house-mail, and so each term being forty pounds, the matter behoved to be respected as three several heads, and so in effect totidem libelli, albeit all were contained in one pursuit; in this process, the Lords found, conform to the custom observed, that the Commissaries of Edinburgh, in civil matters, which are referred to parties' oaths, cannot judge in matters where the same exceeds an hundred merks, and the other inferior Commissaries where the same exceeds forty pounds; and that their decreets are null if they contain any more in civil matters, albeit referred to the parties oath.
Act. Stuart.Alt. Ayton.Clerk, Gibson.
Fol. Dic. v. 1. p. 506. Durie, p. 328.*** Spottiswood reports this case:
There was a decreet obtained by my Lord Lindsay against the Lady Ayton before the Commissaries of St Andrews, for payment to him of L. 120, for three terms mail of a house in Cupar set to her. Alleged, That this being a matter civil and profane, by the injunctions given to the Commissaries, they could not be judges in such cases, in things above L. 40. Replied, That she was convened for three terms mails, at L. 40 the piece, so that it behoved to be thought tot sententiæ, quot capita in libello. In respect of which reply, the allegeance was repelled.
