Though a procurator-fiscal decerned executor, pursue ratione officii, yet if he do not substitute one in his place, the action may be advocated, if the judge be his kinsman.
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In an advocation, the Procurator-Fiscal of Glasgow, being executor decerned to a defunct, and pursuing the debtors of the defunct for payment before the commissary of Glasgow, and the cause desired, to be advocated, because the Procurator-Fiscal was brother to the Commissary, and so, by the act of Parliament 1594, “A brother could not be Judge in his brother's cause pursued before him;”—this reason was sustained and found relevant, and the cause was advocated; for albeit it was answered, That the cause was intented at the Procurator-Fiscal's instance, who was brother to the Judge, yet he pursued only ratione officii, and the profit would not redound to him, but to the nearest of kin to the defunct; likeas the Procurator-Fiscal declared, by the procurators compearing for him in this advocation, that the pursuit was not to his own behoof, and that he renounced all benefit which he should recover thereby, in favours of the nearest of kin; yet the reason was sustained, seeing he remained still pursuer, and that his brother could not be Judge in a pursuit wherein he might have interest; but he might surrogate one in his place after he was decerned, who confirming, or obtaining licence from the Commissary, or the bishop of the diocese to pursue, might then pursue before that Judge; but the Procurator-Fiscal being brother to the Judge, and being undenuded, if none should seek the gear, as nearest to the defunct, and so thereby the same should remain with the Procurator-Fiscal, it were against the law that the brother were Judge in the brother's cause; and this was also found, albeit the cause desired to be advocated, was referred to the defender's oaths, without further process.
Act. M'Gill.Alt. ——.Clerk, Gibson.
Fol. Dic. v. 1. p. 231. Durie, p. 412.*** Spottiswood reports the same case:
James Boyle, Procurator-Fiscal of Glasgow, being executor decerned to Agnes Mullikin, convened her husband, as intromitter with her goods and gear, for payment of certain sums of money. This action was craved to be advocated from the Commissary of Glasgow, because the pursuer and the Commissary were brethren. Alleged, That he pursued only ratione officii, being Procurator-Fiscal, and that the benefit would never acresce to the nearest of kin. Likeas he was content to renounce all benefit that might fall to him there-through; and further, he did refer the verity of the debt to the defender's oath. ‘The Lords did advocate the cause, in respect he pursued as executor decerned, and had not surrogate any in his place, notwithstanding of his office.
