Though a Commissary decern in a sum exceeding the injunctions given to the Commissaries, yet the sentence is valid, unless it had been objected to upon compearance. Here the decree was in absence.
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Alexander Black having obtained a decreet before the Commissary of St Andrew's, against James Scot, for L. 126, pursues a transference thereof against the Representatives of James Scot, who alleged absolvitor, because the decreet is ipso jure null, being given by a Commissary, in a matter not consistorial far above the quantity allowed by the injunctions; and there being nothing to instruct, but the defenders being holden as confessed, the decreet at least must be turned to a libel, and yet proved; 2do, If the defunct had been obliged to have compeared, he would not only have denied the receipt of the vinegar and grapes libelled, but he would have offered to prove, and the defender offers yet to prove, that they were refused, and lay publicly upon the shore where they were disloaded; 3tio, It was offered to be proved, the defunct was lying on death-bed, the time he was cited to depone, and was holden as confessed. The pursuer answered, That albeit these reasons were relevant to repone a party holden as confessed to their oath, yet were not sufficient to annul the decreet, seeing the pursuer lost his probation, the receipt of the goods having been two years ago; and albeit this sum exceeded the Commissary's injunctions, yet the violation thereof does not annul his sentence, or take away his power, unless the same had been objected upon compearance.
The Lords found not the defences relevant to annul the decreet, or to hazard the loss of the pursuer's probation; but seeing the defender burdened himself with a contrary probation, the Lords inclined to admit the same, if it were sufficiently pregnant; and therefore ordained the pursuer, before answer, to adduce witnesses, that the goods were never taken off the shore, but boated there.
Fol. Dic. v. 1. p. 494. Stair, v. 1. p. 543.*** Gosford reports this case:
Alexander Black having obtained a decreet before the Commissary of St Andrew's, against the deceased James Scot, for L. 168 Scots, as the price of a parcel of vinegar, wherein the defunct was holden as confessed, there was a transferring of the said decreet pursued against the defunct's heir; who alleged, That the decreet was null, being given by the Commissary, who was not a competent judge; and the defender's father being dead since the decreet, and being only holden as confessed for non-compearance, when he was upon death-bed, the pursuer ought yet to pursue for the said debt, and prove as he would be saved. This allegeance was repelled, and the decreet sustained, seeing by the death of the defender, that manner of probation would fail. But if the defender could propone any relevant defence against the debt, the Lords did allow him in hac instantia to propone the same specially, the Commissaries being in use to judge of civil matters of small importance, where the libel is referred to the parties' oaths.
