Scottish Court of Session Decisions

Subject_1 TACK.
Subject_2 SECT. XV.

Use of Payment.

Alexander Horseburgh, of that Ilk, Commissary of Peebles,
v.
Thomas Cranstouns, elder and younger, Commissary Clerks thereof

Date: 4 December 1712
Case No. No. 231.

Use of payment for 40 years, of a certain proportion of the dues of an office, by the Clerks to their principal, less than due, exempted them from a demand for by-gones.

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Alexander Horseburgh pursued his Clerks for count reckoning and payment to him of all the profits emoluments and casualities of the Commissariot of Peebles, belonging to him as Commissary, since the date of his commission, August 12, 1707, according to the Tweny-fifth Article of the King's Instructions to the Commissaries, recorded in the books of Session, February 20, 1666, appointing all the profits to be divided into three parts, whereof two should belong to the Commissary, and a third to the Clerk, with the burden of paper, ink, wax, and writing chamber; and that it might be declared accordingly.

Answered for the defenders: The regulation of the fees and profits in the above Instructions never took place, but they have always been local and consuetudinary; every Court observing its own rules. And if the defenders have uplifted more than according to forty years constant custom of the Court, they are ready to count; but are no otherwise liable, either as to by-gones, or in time coming. Whatever regard may be had to the Instructions 1666, they have not the force of a law, and the regulation of fees thereby is not so effectual as what is made by acts of Parliament; nor have these Instructions the force of an act of sederunt, the Lords not having ordained them to be observed, but simply appointed them to be recorded, under protestation that the recording should nowise prejudice their Lordships' jurisdiction or privilege. Now, the regulation of fees by the Instructions 1666 never took effect in any Commissariot in Scotland, so that it is gone in desuetude, or rather was never in observance. Hardly are the fees in any act of Parliament since King Charles Second's time now in use; much more may simple Instructions transmitted from the Throne as expediencies lose their force, in whole or in part, by long contrary custom; and though these, being articulate, have been observed in some articles, they might run in desuetude as to other.

Replied for the pursuer: Albeit the Instructions had not been appointed by the Bishops, (who had the disposal of all offices of Court), and authorized by the Sovereign, yet the Lords of Session may regulate all inferior Courts; and the recording the Instructions in their Lordships' books was an interposing of their authority to them, and gave them the force of an act of sederunt. As to the allegeance, That the Instructions were recorded under protestation, the pursuer finds no such protestation; and it would have been needless, seeing the Lords of Session are the supreme consistory who can suspend or reduce decreets of Commissaries, and give what new instructions to them they please; 2do, If the two parts of the dues to the Commissary had not been exacted at all, but passed from to ease the lieges, something might be pretended against exacting the same after so long a desuetude and forbearance; but the Clerk (who collects the Judge's dues and his own) having uplifted the whole from the lieges, cannot be exempted from counting for that which, by law, belongs to another, even for all by-gones within forty years, which he was in mala fide to retain; seeing none can prescribe right to a thing without some title, and far less contrary to his own right and title, viz. his office, to which, by the Twenty-fifth Article of the Instructions, a third only of the dues doth belong. Had the Judge and Clerk right to their offices, with the casualties and emoluments belonging thereto in general, use and custom might have increased or diminished their respective dues; but here, where every one's proportion of the dues is determined, it is impossible that desuetude by the Judge's not exacting his part from the Clerk, (who is collector), can entitle the Clerk to the Judge's part; more than one who hath a bounding charter and infeftment can acquire, by never so long possession, right to lands without the limits of his charter; or a Minister's neglect for forty years to uplift some part of his modified stipend could prejudice his successor in office. What is a Commissary concerned whether his predecessor called his Clerk to a full account for his dues or not?

The Lords found the defence of possession relevant to assoilzie from by-gones preceding the date of this decreet; but repelled the said defence as to the emoluments in time coming, and declared accordingly.

Fol. Dic. v. 2. p. 428. Forbes, p. 640.