Decree subscribed by the commissary in place of the clerk sustained, because of the custom, but the custom found not right, and therefore not to be sustained in time coming.
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The Commissary of Brichen having pronounced a decreet betwixt two parties, which beiag extracted, was subscribed by the Commissary, who was judge thereto, and not by his clerk, and therefore was quarrelled as null, seeing these being two distinct offices, as the clerk could not be judge, no more could the judge be clerk; for, as the judge could not sit down and minute processes, and write his own ordinances, no more could he subscribe decreets; notwithstanding whereof the decreet was sustained, seeing it was the custom of that court, and divers other inferior judicatures to do the same; but the Lords found it a custom unlawful, and not to be hereafter allowed, and ordained the Commissary to abstain therefrom in time coming.
