Decree pronounced by an Incompetent Court. - Prorogatio de loco in locum. - Decree pronounced in vacation time, how Prorogated?
Roberton v. Dundas
1583.
February. Case No. No 15.
A person being summoned to compear coram non suo judice, the Lords found, that if he did not compear and propone his declinator, the decree pronounced against him must stand good till it be reduced.
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There was a woman called Dundas, who, being pursued by virtue of letters raised upon a decreet by one Roberton, brother to the Laird of Ernock, obtained suspension, alleging, That the said decreet was given against her a non suo judice, by the Commissary of Glasgow, she in the mean time being for the space of 40 days before the same having her remaining and dwelling in Edinburgh; and so the said decreet, as she alleged, was null of itself, and merited not execution.—It was answered, and also reasoned among the Lords, That the said decreet, albeit it was given a non suo judice, behoved to stand and take effect; because the party was summoned to the giving thereof, et de jure, prout in L. 5. D. De judiciis, si quis ex aliena jurisdictione ad Prætorem vocetur, debet venire, et privilegia sua allegare, and so the said defender, Dundas, being once warned, ought to have compeared and alleged that she was not under the Commissary's jurisdiction, and to have proponed declinatoriam exceptionem.——The Lords pronounced, That albeit the decreet was given a non suo judice, it ought to stand until it be reduced.
