Prorogation of the jurisdiction of a Judge, against whom there lies a personal objection. Prorogation of the jurisdiction of the Court of Session, in cases of which they are not judges in the first instance. Effect of proponing other defences after declinator is repelled.
Sir John Shaw v. Mr John Buchanan
Date: 29 July 1696 Case No. No 30.
A party proponed declinator of an inferior judge, which being repelled, he gave in other defences. Found, that he did not thereby pass from the declinator.
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Crocerig reported Sir John Shaw of Greenock, against Mr John Buchanan and the Creditors of Clackmannan, for exhibition of an interdiction of Shaw of Sauchie, to sundry of his friends. Alleged, The decreet of exhibition obtained against him before the Commissaries of Edinburgh, was ipso jure null, the affair being nowise consistorial; and he having proponed the declinature, they unjustly repelled it and proceeded. Answered; You have prorogated and homologated the jurisdiction by proponing other defences in causa. The Lords found this was no passing from the declinature of the incompetency of the Court; for what can a defender do, but adhering to his declinature, propone his other defences, when the judge will proceed? Though some were of the mind, that he should, after that injustice done him, either advocate or be absent. Then Greenock pressed that ante omnia, his decreet being now turned into a libel, the paper should be put in the clerk's hands, lest they die medio tempore, or it miscarry. The Lords refused this, as contrary to form, hoc ordine, till they were heard against his title.
Fol. Dic. v. 1. p. 494. Fountainhall, v. 1. p. 730.
*** Prorogation of Jurisdiction of Justices of the Peace, see Div. XI.
