Decree pronounced by an Incompetent Court. - Prorogatio de loco in locum. - Decree pronounced in vacation time, how Prorogated?
Maxwell v. Laird of Minto
Hamilton v. Swyne
Date: 6 December 1628 Case No. No 19.
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Decreet obtained before inferior judges from Lammas to November, except they bear dispensation, are null; but if the said decreets be given in foro contradictorio, and the declinator omitted by the defender, the not inserting of the dispensation cannot be objected by the said defender, either by way of suspension or reduction.
Fol. Dic. v. 1. p. 493. Auchinleck, MS. p. 56.*** Durie reports this case:
In this pursuit, a decreet given by the Commissary in time of vacance, being quarrelled by the suspender by way of suspension, because the judge had not a dispensation to sit in that feriat time, the decreet, notwithstanding, was sustained, because it was given against him compearing; so that he not proponing the same before sentence, videbatur consensisse in judicem, and he could not now propone that which he then omitted.
Act. Stuart & Burnet.Alt. Nicolson & Baird.Clerk, Gibson.
Durie, p. 406.
