Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Russel
v.
Russel

Date: 27 November 1678

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There being mutual actions of molestations between Russels and Russels, in relation to lands lying upon the borders of the shires of Lanerk and Linlithgow, before the Sheriff of Lanerk; the Sheriff appointed a perambulation, and named an inquest; and, at the first meeting of the perambulation, prorogated the same to a diet. Some months after, Russel in Linlithgow-shire raised advocation on these reasons:—1mo. That, by express Act of Parliament, Molestations betwixt heritors of lands in different shires are ordained to be by the Lords, or by indifferent persons commissioned by them; and the inquests meeting on the ground, their diets are not to be continued beyond eight days; whereas, here they were continued for some months. 2do. The sheriff of Lanerk is suspected as interested to enlarge his own jurisdiction; for, if the land in question be found to be part and pertinent of the tenement belonging to the Russels in Lanerkshire, it will be in the sheriff of Lanerk's jurisdiction.

It was answered to the first, That primus actus judicii est judicis approbatorius:—both parties having pursued before the sheriff of Lanerk, cannot now decline him as incompetent. And, as to the prorogation of the inquest, it was of consent of both parties, as the Act bears. Neither is a reason of suspicion competent after an Act of Perambulation, and an inquest chosen out of the lists offered by both parties; which makes litiscontestation in perambulations: after which nothing but iniquity can advocate.

It was replied, That though the pursuer of the advocation did compear before the sheriff of Lanerk, yet the Act bears,—That he protested that he was not under his jurisdiction, and did proceed under that protestation: neither can the sheriff's act, bearing his consent, prove, unless it had been subscribed.

It was duplied, That proponing defences, or offering members of inquest, and compearing at the diet of inquest, are all acts approbatory of the sheriff's jurisdiction; and any protestation in the contrary, is inconsistent, et contraria facto: Neither is there necessity to subscribe any consent in matters ordinary incident in processes; as assigning and ordaining of diets.

The Lords repelled the first reason; and found the appearance and insisting excluded declinator, notwithstanding of any protestation in the contrary: and found the consent to the continuing the diets without writ sufficiently proven, by the Act of the Court, without consent of the party; and that, after nomination of the inquest upon the lists of both parties, suspicion of the judge was not competent.

Vol. II, Page 647.