Of Assessors to the Commissaries. - Whether Commissaries must reside where their Courts are held. Where the Courts must be held.
Fleming v. Nimmo
Date: 11 July 1672 Case No. No 296.
The commissary clerk must give personal attendance, unless necessarily absent.
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The Commissary of Glasgow pursues the clerk of the commissariot, for declaring that he ought to reside and exerce the office in his own person, and that for non-residence or malversation he ought to be deposed. The defender alleged absolvitor, because his office depends not upon the Commissary, but he hath it immediately by gift from the Archbishop; 2do, In his gift he hath a power of deputation, and hath a sufficient depute who exerceth the place; and albeit the Bishop might pursue him to be deposed, the Commissary hath no interest. The pursuer answered, That he hath good interest by his office to remove an insufficient or malversant clerk, not only upon the account of justice, which he ought faithfully and speedily to dispatch, but also upon his own interest, to whom the profits of the place belongs; neither doth the power of deputation exempt him from attendance, but only in cases when he hath need to be absent, but not to be absent at his pleasure, or to enjoy the benefits without any care of the office.
The Lords sustained the declarator, and found the clerk obliged to attend, unless he were absent upon just and necessary occasions.
