Scottish Court of Session Decisions

Subject_1 REGISTER.

Commissaries of Edinburgh
v.
Sheriff-Clerks

1748, Dec. 16.
Case No. No. 8.

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This day we again had under consideration a question we determined in 1737, and then resolved to make an act of sederunt on it, which was then prevented by a petition from the Commissaries, viz. Whether bonds, contracts, &c. can be registrate in the Commissaries books without a consent to registrate specially in their books, and whether bills could be there registrate? It was admitted that by the original commission and their instructions there could be no such registration without a consent to registrate in their books; and the question was whether the usual general clause “any Judges books competent” included their books? and it carried by a good majority, that they might be registrate there on that general clause. There were only three or four against it, inter quos ego. What seemed to move the Court was an averment not contradicted, that before 1654 clauses of registration were always special enumerating all the different Court books in which the writing could be registered et inter alios the Commissaries, and in that year the style first varied, and the general clause was substituted, which therefore must be understood as large as the special clause was wont to be, since the granter had no interest to oppose it, and the frequent registration in the Commissary books proved the general opinion. I again thought that the general clause meant no Court books but what were competent to that subject before, which I thought also the meaning of the act 1681 anent bills; and whereas it was said that by “competent” was meant all Courts competent to give an extract whereon horning might follow, I observed that that gloss would authorize registrating extra territoriam in every Sheriff's books in Scotland contrary to the act 1685, because I had no doubt that one might prorogate the jurisdiction of a Sheriff in whose jurisdiction he did not reside. I noticed also that by the same argument the Commissaries would be competent to the execution of all bonds contracts, &c. containing such a clause, for the same reason that we found a decreet-arbitral in London must be governed by the law of Scotland because of a consent to registrate in our books, (Ouchterlony against Francis Grant,) and appealed to the Commissaries instruction 1563 making them Judges to all contracts, &c. registrate in their books, and a decision 27th March 1627, Irving against Young, (Dict. No. 25. p. 7309.)

The President said that if this consequence would follow he would be against the Commissaries, for that would plainly take off the limitation of their jurisdiction to L.40, but said that these instructions and that decision were not law now, but told us not how the law was altered. We also unanimously found them competent to tutorial and curatorial inventories, in which I agreed, because datio curatorum was expressly part of the first commission.