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A service being advocated from an inferior judge to the macers, all other judges were thereby found prohibited to serve, though not mentioned in the advocation.
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In an action for exhibition and delivery of a tack, pursued at the instance of James Cranston, assignee to John Hume, who was served general heir to him, to whom the tack was set, viz. To the E. of Dunbar, against John Hume of Slegden, as heir of conqueish to Sir George Hume of Manderston; for instructing of the pursuer's title, the retour was produced, whereby the said John Hume was served heir, before the Sheriff of Roxburgh, to the defunct; which retour the Lords found null ope exceptionis, because it was alleged, That before that service, there was advocation raised at the instance of the oye of the E. of Dunbar, for advocating of the brieves, whereby the said John Hume desired to be served general heir to him, before the bailie of Lauderdale; by the which advocation, not only was the bailie of Lauderdale discharged, but also the said John Hume, purchaser of the brieves, was discharged and summoned, he being personally discharged to prosecute the said brieves, impetrate to be served before the said bailie, as the advocation shewn to the Lords bore; which the Lords found to make the retour null, summarly by way of exception; albeit the party replied, That his retour being a sentence standing, could not be found null, but by way of reduction; and also that the advocation could not be of that force; for albeit it should be here received and disputed, as in a reduction, to annul the retour, seeing by the advocation, the brieves to be served, before the bailie of Lauderdale, were only advocate, and that judge only discharged; so that the intimation made to the party, of the discharge of the particular brieves, to be served before that judge, could never be of force, to stay him to prosecute, or to intent a service before another judge, of whom no mention is made in the advocation; and the party insisting therein after that discharge, cannot be found to be done spreto mandato judicis, seeing that command was obeyed, the pursuer never having impetrate any such brieves before that judge at any time; and the discharge cannot be further extended than it bears, nor enlarged beyond that which the party's self fought, who craved not the pursuer to be discharged of all serving of himself heir before any other judge, as he might have done, and would have been also granted, if there had been found any reason for the same; and so he omitting to seek the ordinary remeid, that advocation, as it is craved and granted, cannot be obtruded to annul his service, especially, regard being had to this, that the advocation of brieves is not allowable, neither is there any relevant cause set down in the advocation, whereby the brieves could have been impeded to be served.——Which answer was repelled by the Lords, seeing they found, after that the party was personally discharged, albeit to proceed before one judge, yet it was not lawful for him to proceed or serve thereafter before any other, except the party who raised that advocation, had been warned thereto; but the service of the brieves thereafter was elusorie of the former discharge, and was deduced spreto mandato, and therefore null.
Act. Ayton, Stuart &. Craig.Alt. Hope & Nicolson.Clerk, Gibson.
Fol. Dic. v. 1. p. 27. Durie, p. 74.
