A decree of an inferior court sustained, after letters and summons of advocation, executed against the party, but not against the judge.
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In a suspension betwixt contra, a decreet being quarrelled as null, because it was pronounced and dated after the cause therein contained, was by the Lords' letters and summons of advocation advocated, and after the party obtainer thereof, was summoned by the said summons of advocation, to compear before the Lords, and albeit the judge was not discharged to proceed, whereby it might be alleged he was in probable ignorance of the advocation, and so might lawfully proceed in the cause, the advocation thereof never being intimate to him; yet the suspender alleged, That that could furnish no excuse to the party, who knew of the advocation, and who, after the same was intimate to him by citation, as said is, can never be found to have done bona fide, in insisting in that action before the judge thereafter; but the decreet ought to be found null, as done and insisted on by him contra mandatum judicis, which he could not misknow. This reason was not sustained; but the decreet was approven, notwithstanding of the advocation and citation of the party, obtainer thereof, seeing the judge was not discharged, who not being acquainted legally with the advocation, cannot be repute to have contemned the authority of the Lords.
Fol. Dic. v. 1. p. 27. Durie, p. 311.*** Spottiswood reports this case thus:
Mr Gavin Stewart having obtained a decreet against his parishioners of Dalmellington, before the Commissary of Glasgow; they suspended upon this reason, That the decreet was given spreto mandato judicis, they having raised an advocation before the giving thereof, the party cited and the Commissary and clerk summoned.—Answered, That if any advocation was raised, the same was never intimate to the judge sitting in judgment, but only at his dwelling-house.——The Lords, in respect that the Commissary and party were both in bona fide to proceed, the judge not being discharged in judgment, found the letters orderly proceeded.
