An advocation being produced for a party before the inferior court, and the other party offering to debar him from producing by a registered horning, and the judge thereupon giving sentence without regard to the advocation, the Lords reduced the sentence as given spreto mandato.
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James, David, and Andrew Homes, brothers of the house of Lochtillo, were pursued by Alexander Home of Prendergaist before the Sheriff of Langtoune, to flit and remove from certain lands; in the meantime, and before the giving of the said decreet into the said action, the said brothers produced before the Judge, letters direct from the Lords of Session, to hear and see the matter advocated, et interea to discharge the said Sheriff and his deputes from all further proceeding. The Sheriff, nevertheless, proceeded, and gave decreet condemnator; igitur dicti fratres meaned them again to the Lords of Session, and desired absque ordinaria via reductionis to be reponed again tanquam a decreto a non suo judice lato. It was answered, That the Sheriff did no wrong in giving of the said decreet non obstan. of the said discharge which was intimated to him, and he sufficiently certiorate of the same, because the said brothers, at whose instance the letters of advocation, with the discharge therein contained, were all the King's rebels, and at the horn for a slaughter, as the letters of horning bear, which were produced before the Sheriff, and so the brothers had no place to stand in judgment, and merited no benefit of the law. To the which it was answered, That albeit the party was rebel, and had no place to stand in judgment, yet not the less the Lords ought to have been obeyed, and the letters that proceeded from them; and in so far as the Sheriff did proceed and give process, being discharged by the Lords, he did wrong. The matter, with great contentation, being reasoned among the Lords, some were of the opinion, that albeit the party was at the horn, yet he might have sought advocation, as a party being at the horn may force suspension and relaxation; others were of the contrary opinion, that in so faras the said brothers were the King's rebels, and for a capital crime of slaughter, that neither the Lords, nor yet the Sheriff, or any inferior judge, could have shewn to them any favour, and that they had no place to stand in judgment, and were not capable of any benefit of the law, quia fuerunt infami de jure et de facto, et sic non habuerunt personam in judicio standi prout in L. 6. D. De iis qui notantur infamia. The Lords pronounced, by interlocutor, that the Sheriff had done wrong, in so far as he obeyed not the Lords' letters, and that process should have been given to the parties, albeit they were at the horn in this case, and so ordained the said brothers to be reponed again into their own place, notwithstanding of the decreet given by the Sheriff, because, after he was discharged, it was tanquam decretum a non suo judice latum. Bona pars dominorum in contraria fuerunt opinione.
Fol. Dic. v. 2. p. 85. Colvil, MS. p. 340.
*** A similar decision was pronounced, 8th March 1634, Charteris against Myles, No 6. p. 368, voce Advocation.
