Decree pronounced by an Incompetent Court. - Prorogatio de loco in locum. - Decree pronounced in vacation time, how Prorogated?
Service v. Chalmers
Date: 23 February 1627 Case No. No 17.
A Sheriff's jurisdiction may be prorogated against a party living without it, by his compearing and pleading, without objecting to the jurisdiction, and he is thereby barred from challenging the decreet as a non suo judice.
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In a suspension and reduction betwixt Service contra Chalmers, both being upon one reason, viz. That the decreet desired to be reduced, was given by the Sheriff of Stirling, against the party reducer, who dwelt within the sheriffdom of Perth, and so not within his jurisdiction; therefore the decreet was null, as a non suo judice; and that the said decreet was given for non-compearance to explain the defender's oath, the summons being referred to his oath, and the party having compeared and deponed; after which deposition, the inferior judge had no power to summon over again the party, to compear to explain his oath; but when he first compeared, the judge might have interrogated him, as far as to make the deposition so clear as whereon to pronounce his sentence, and ought to judge conform thereto; and no inferior judge could summon any party to depone over again: These reasons were not found relevant, because the party reducer having compeared in the first instance, as the decreet proported, he could not thereafter be heard to quarrel the decreet, upon that reason, a non suo judice, which he ought to have proponed in the first instance, he then compearing.—And also the Lords found, That no inferior judge might summon any party to compear to explain his oath, after it was given in the same process; and likewise found, That albeit in this reduction, the party offered to come, and to depone and explain his oath, yet for his contumacy, being holden pro confesso, in the first process, that they would not admit him now to depone.
Act. Nicolson.Alt. ——.Clerk, Hay.
Fol. Dic. v. 1. p. 493. Durie, p. 280.
