Commissaries are limited that they cannot Judge in causes above a certain sum.
Richardson v. Maxwell
Date: 18 June 1634 Case No. No 289.
A decree of a Commissary was sustained, in which a matter was referred to the defender's oath, and he held as confessed for not appearing, though the debt exceeded 100 merks.
A decree of a Commissary for two sums, each of which was under 100 merks, but when added together exceeded that sum, was sustained.
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Agnes Richardson having obtained decreet against Maxwell of Frier-corse, before the Commissary of Dumfries, decerning him to relieve the said Agnes Richardson of the sum of L. 80, which she had paid as cautioner for Maxwell's son, of the which cautionry and sum he had promised to relieve her; and also decerning him to pay to her the sum of L. 40 for meat and drink, furnished by her to the defender's self; and the verity of both which articles was referred to the defender's oath, and in pænam contumaciæ et in supplementum, the pursuer's oath was taken upon the libel, whereupon sentence was pronounced; which being suspended, because it was given a non suo judice, the matter being civil, and albeit referred to oath, whereby the Commissary might appear to be competent judge, yet seeing the subject exceeded L. 40, and so is above the injunctions given to Commissaries, whereby they have only power in civil matters, where the same are referred to the parties oath, if the sum exceeded not L. 40, and above that sum they cannot proceed, albeit referred to oath;——the Lords found not this reason relevant to suspend the decreet, but sustained the same, though it was in a matter of L. 80; for ordinarily the Lords found, that the ecclesiastical judge may proceed in civil matters referred to oath, extending to 100 merks, and this being but for 20 merks more, the same was not thought of such importance as to annul the sentence; for as, concerning the other article of L. 40, albeit it was in the same libel and sentence, yet it was considered as if it had been pursued in a distinct libel, and as a several sentence, seeing it was for another subject and cause of a different nature from the other, the one being for relief, and the other for furnishing of vivers to himself; neither was the offer of the suspender to give his oath received now post sententiam, there being no cause alleged to excuse his absence and not compearance at the day whereto he was cited; and that the pursuer's oath was also taken upon the truth of the libel, whereby there might be fear of perjury if the other party's oath should now be taken, if he should deny the libel.
Act. Cunningham.Alt. ——.Clerk, Gibson.
Fol. Dic. v. 1. p. 506. Durie, p. 718.
