Alexander Gordon, Procurator-Fiscal of Kincardine, v. David Jamy
Date: 1 December 1681 Case No. No. 14.
Click here to view a pdf copy of this documet : PDF Copy
The Sheriff of Kincardine having declared a man fugitive, for theft, upon an irrelevant dittay, and this being suspended by the Lords, through some mistake, they found the letters orderly proceeded, seeing the party ought to have suspended before the Justices, who are the proper judges.
Harcarse, No. 943. p. 265.*** Sir P. Home reports this case:
Alexander Gordon, Procurator-Fiscal of Kincardine, having pursued David Jamy before the Sheriff for theft, and he being declared fugitive, for not compearance, and he having thereafter raised suspension and reduction of the Sheriff's decreet, upon several grounds of nullity and informalities; it was answered for the Procurator-fiscal, That the said David Jamy having been declared fugitive by the Sheriff's decreet, he had not personam standi in judicio before he first relaxed himself, and found caution, according to law, it being a principle in law, that no man can be admitted to propone any defence that is declared fugitive, and at the horn, before he be first relaxed; for if it were otherwise sustained, then the several courts and judicatories would interfere one with another, and that which would not be allowed in one judicatory should be sustained by another, which would absolutely elude the law; for, by that same reason, a party declared a fugitive before the Justices, might compear and crave the benefit of law before the Lords of Session; which were absurd; and therefore law has introduced, that, as a punishment upon any party that is rebel, or fugitive from the law, he should not have the benefit of law; and, therefore, before the said David Jamy relax, and find caution, he cannot be admitted to pursue or defend any action before the Lords of Session;—as, also, the Lords of Session are not competent judges to any criminal case. Replied, That the said David Jamy having raised suspension and reduction of the Sheriff's decreet, upon several grounds of nullity and informality, these must be first discussed; for if the decreet be ipso jure null, it cannot have any effect in law, and so cannot be sustained to hinder him to compear, or prejudge him of the lawful defence; and the Lords of Session being competent judges to the reduction or suspension of Sheriffs' or other inferior judges' decreets, even in those subjects whereof they are not proper judges in primo instantia, as in the case of divorce, scandal, or the like, so the Lords are competent judges in secunda instantia, albeit criminal, to cognosce whether the Sheriff has done prejudice or not. The Lords found, that the said David Jamy had not personam standi in judicio before first he relaxed, and find caution in the books of adjournal.
