Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Sir John Preston of Prestonhall v. Robert Rule
1699.
February23and
June21.
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February 23.—Sir John Preston of Prestonhall pursues Mr Robert Rule, minister at Stirling, as executor to the old Lady Kinglassie, on this ground, That he had pursued her before the Sheriff of Fife, upon a promise of payment of 2000 merks to him, whereon she, being personally apprehended and not compearing, was holden as confessed, and a decreet extracted against her; and during her lifetime, for some years, she never raised reduction thereof. Mr Robert's defence was, Your decreet was unwarrantable, being pronounced by your uncle sitting as sheriff-depute, who in law was inhabile to judge in his nephew's cause; and so the holding her as confest can bind no debt on her executor.
Answered,—If she had been on life there might have been ground to repone her; but now, the mean of his probation being perished by her death, the decreet must stand: Neither is it a nullity that it was pronounced by his uncle; seeing both the old Act of King James the Sixth, and the late one in 1681, anent declinators, only extend to the case where the declinator is proponed; which was not here.
Replied,—The judge in such a case ought not to proceed; but it is partes judicis to decline himself; and the party is not obliged to compear and propone it. And though this may not hold in a collegiate society of judges, as the Lords of Session are, where the rest may judge, though one declinable in law sits and votes with them, when the declinator is not proponed; yet, where such an inhabile person is the sole judge, it ought not to be sustained.
The Lords, by a scrimp plurality of eight against seven, found the decreet valid, because the declinator was not proponed, and the mean of probation was now perished.
June 21.—This point being reconsidered upon a bill and answers, the Lords being equal, seven against seven; the President, by his vote, altered this interlocutor, and found the decreet given by an uncle null, the defender not having homologated his jurisdiction by compearance, but having suspended the decreet, and died before discussing.
