It is to be considered, that the most part of Decreets, befor Infe∣rior 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 in∣considerable Sums, the Remedy should be worse than the Mischief.
It appears indeed, that the Commissars have not power to Fyne; that being a Criminal Jurisdiction; and that they are not Judges to Impro∣bation by the indirect manner; The Tryal of Falsehood, by circum∣stances and presumptions, being Altioris Indaginis; and of that Diffi∣culty, that it ought not to be left to an Inferiour Judge. Item, The Try∣al 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 obtain∣ers 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 proven by the Witnesses and Executer himself, declaring that they pursue to that effect allanerly: And it appears not to be inconsistent with Law and Form, that this course should be taken; seing the Judge does not reduce his own De∣creet, ex capite iniquitatis; and it may be provided, that such Pursutes, tho 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 confest, should raise a lybel before an Inferior Judge, that it may be Found that he was not Contumax, being out of the Countrey, 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 Lybel; such a Pursute would not be incompetent, tho in effect it would be a Reduction upon the matter.