Scottish Court of Session Decisions

Subject_1 JURISDICTION.
Subject_2 DIVISION VIII.

Commissary Court.
Subject_3 SECT. IV.

Of Assessors to the Commissaries. - Whether Commissaries must reside where their Courts are held. Where the Courts must be held.

Magistrates of Lanark
v.
The Commissary of Lanark

Date: 28 November 1738
Case No. No 297.

A Commissary was found obliged to hold his courts in a particular town, unless upon extraordinary emergencies.

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The Commissary of Lanark having established a depute at Lesmahagow, for the convenience of the district adjacent to that village, of which the Town of Lanark complained by suspension, it was found by a small plurality, “That he could not establish such depute, and that he is obliged to hold his courts in the town of Lanark, and there only.”

A quality at the same time was added, which there was no dispute about, viz. Without prejudice to his sealing and opening the repositories of persons deceased, granting summary warrants, and other acts of administration, and without prejudice to the Commissary to hold courts pro re nata, upon any extraordinary emergency, at any place within the commissariot.

The judgment proceeded chiefly upon the general reasoning, that the immemorial custom of holding the Commissary Courts only at Lanark, presumed an original constitution; but as there was also produced an old decree in absence, to the like purpose, at the instance of the town of Lanark, this judgment is the weaker on the general point. It seems unreasonable, that, especially in a wide commissariot, a depute may not be established for the convenience of places remote from the principal seat of the Commissary.

Fol. Dic. v. 1. p. 506. Kilkerran, (Jurisdiction.) No 1. p. 301.

*** See Div. 2. Sect. 3. h. t.