[1677] Mor 7486
Subject_1 JURISDICTION.
Subject_2 DIVISION V. Inferior-Courts.
Subject_3 SECT. I. Jurisdiction with regard to Ejection. - Improbation. - Contravention. Process of Transference. - Clandestine Marriage.
Date: Procurator-Fiscal of Glasgow
v.
Cowan
26 January 1677
Case No.No 202.
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The Commissary of Glasgow, having sustained process at the instance of the Procurator-fiscal, for the trial of a falsehood of executions, whereupon a decreet had proceeded; and having, upon probation of the falsehood, decerned the user of the said executions to pay L. 300 to the Procurator-fiscal, as a fine; and the said decreet being suspended; the Lords found, that the Commissary was not a competent Judge to the improbation of executions, by way of action, seeing they cannot reduce their own decreets; and improbation is a reduction ex capite falsi.
Reporter, Justice Clerk. Clerk, Hay. It is to be considered, that the most part of decreets before inferior Judges are for null defence, and upon false executions; and it were hard, that there should be no remedy but by improbations before the Lords, which may depend long, and are very chargeable; so that decreets before inferior Judges being, for the most part, for inconsiderable sums, the remedy should be worse than the mischief.
It appears, indeed, that the Commissaries have not power to fine; that being a criminal jurisdiction; and that they are not Judges to improbation by the indirect manner; the trial of falsehood, by circumstances and presumptions, being altioris indaginis; and of that difficulty, that it ought not to be left to an inferior Judge. Item, The trial of falsehood, as to that effect, that falsaries may be punished, ought not to be by any inferior Judge: But it seems to be just and necessary, that parties, grieved by such decreets, should be allowed to pursue the obtainers of the same, to hear and see them reponed against the said decreets, upon that ground, that they were not cited to the same; to be proved by the witnesses and executor himself, declaring that they pursue to that effect allenarly: And it appears not to be inconsistent with law and form, that this course should be taken; seeing the Judge does not reduce his own decreet, ex capite iniquitatis; and it may be provided, that such pursuits, though they be upon the matter improbations, are only to the effect foresaid; and that no other effect or consequence shall follow upon the same; and multa fiunt per indirectum, which cannot be directly; and if a party, who is holden as confessed, should raise a libel before an inferior judge that it may be found that he was not contumax, being out of the country, or
sick, or detained by storm, or some other insuperable impediment; and that, therefore, he should be reponed; and the decreet should be holden as a libel; such a pursuit would not be incompetent, though, in effect, it would be a reduction upon the matter. *** Stair reports this case: William Cowan having obtained a decreet against Mackclarie, before the Commissary of Glasgow, there was thereafter a pursuit at the instance of the procurator fiscal against the said William, as having made use of false executions, whereupon the decreet proceeded; who having compeared, and the executor and witnesses in the execution being examined, the same were improven, and thereupon the Commissary reduced the decreet, and decerned Cowan to pay L. 300. Of this decreet Cowan raises suspension and reduction on these reasons; 1mo, That though the commissary might have questioned, or fined his own officer, yet he, nor no inferior judge, was competent to an improbation, except incidenter during the dependence of any process before them; but after sentence they cannot improve any writ, nor can they reduce their own decreets; for the Commissaries of Edinburgh only can reduce the decreets of inferior Commissaries, but even the Commissaries of Edinburgh cannot reduce their own decreet, though they be a collegiate court; 2do, They had far less power to fine Cowan for making use of the execution and decreet; neither is there any thing adduced to prove that Cowan knew that the executions were false, who did protest at the time of the sentence, upon that account, to be free.—It was answered to the first, That Cowan having compeared in the decreet in question, and not declined, he acknowleged the jurisdiction. To the second, the probation was of no principal writs, but of executions, and upon a general complaint against that commissariot.
The Lords found the first reason relevant, that the Commissary could not after sentence improve the executions, or reduce his own decreet; but found that reason elided, by Cowan's compearing and not declining; and found the second reason relevant, that albeit Cowan did bide by the executions, yet nothing being proved of his accession to the executions, not being truly done as they did bear, the Lords suspended the last decreet.
*** This case is also reported by Gosford: In a suspension and reduction of a decreet obtained before the Commissariot of Glasgow, at the instance of William Cowan, whereby not only they had reduced their own decreet, but likewise in an action of improbation against the said Cowan, they had found him guilty of falsehood in contravening and employing
of messengers who had made up false executions, and whereof he had made use, by producing them in judgment, and thereupon had condemned him in the sum of L. 300 upon these reasons; 1mo, That the Commissaries of Glasgow were not judges in reductions of their own decreets pronounced by them, that being only competent to the Commissaries of Edinburgh; nor any other Commissaries have power to reduce the same, they being functi officiis by giving their decreet; 2do, The decreet of improbation upon a reason of falsehood of executions, was only competent to the Lords of Session, as being Supreme Judges of the land in all improbations, especially by way of action where falsehood is to be tried by the direct or indirect manner.—It was answered for the procurator fiscal, That the executions produced by the messengers being in judgment before them, they were most competent judges to try the falsehood; and it were most inconvenient, where the paper can be declared false, upon the direct manner, that they should not have that power, seeing the trial was most proper, and being easily tried by examination of the witnesses, if they were present, or did subscribe; and the like was decided upon the last November 1630, Williamson against Cushnie, No 197. p. 7483. 2do, If all judges, before whom executions are produced and by way of exception are challenged as false, are competent, so upon that reason, they are competent judges by way of action, quia cui competit exceptio multo magis et actio; and as to that privilege, the Commissaries have a special right in their injunctions ordaining them not only to stop process upon proponing of improbations; and therefore of necessity must be allowed, after sentence, to try the same by way of action, otherwise he would be altogether secluded; whereas the contrivance of falsehood being most frequent before inferior judges, the lieges would be heavily prejudged if mean persons could only be remedied by a longsome and expensive process before the Lords of Session, which could only come in by the roll in præsentia. 3tio, The pursuer could never question the decreet, because he had compeared judicially and abidden by the executions which were improven by one of the witnesses, who denied he was present, and the other confest that he had only subscribed the same after the execution was made by the messenger.——The Lords did much debate amongst themselves anent the relevancy of the first reason, if the Commissaries could reduce their own decreet, and did all agree, that they being functi officio by the decreet, no Commissaries could reduce the same, it being only proper to the Lords of Session; and that inferior judges, if they found that their officers employed did malverse, they might punish them summarily; but as to the parties who employed them, and thereupon had received sentence in their favour, the same could not be taken away by that same judge who had given sentence in an inferior court, or any other, such as the Commissariot of Edinburgh, or Court of Admiralty. As to the second point, having considered that the trial by way of action of a falsehood of an execution before an inferior court, both against the party and the executors, if it were clear and without all question, that it were hard to bring it in by the ordinary roll in a new process and improbation before them, especially in this case, where the accession of the party who employed the messenger was not so pregnant, if bona fide he had made use thereof as being ignorant of the falsehood; they did remit it to some of their own number who were upon the Criminal Court to consider the same, as upon their judgment such a trial might be taken as they might find just and reasonable.
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