Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 DECLINATOR.

Douglas, Heron, and Company
v.
Mr Baron Grant

Date: 22 February 1774

Click here to view a pdf copy of this documet : PDF Copy

In this case Lord Hailes proponed a declinator against himself, as being the brother-in-law of Sir Adam Fergusson, one of the partners of the Douglas and Heron's Bank. He observed that, if Sir Adam had been one of two or three partners in a private merchant company, the declinature would have been certainly good. Thus the Lord Justice-Clerk was always allowed to decline himself where J. Murdoch and Company were parties, because John Murdoch, a partner, was his father-in-law. And, where Mansfield and Company were parties, because P. Miller, his brother, was a partner, it was observed by some of the judges, that partners in the Royal Bank were allowed to vote, and that the interest of any partner in so numerous a company as that of Douglas and Heron was small. It was answered that the Royal Bank was a corporation, and that the partners in it were not parties in any action, for that such action always went in the name of the governor and directors; that the smallness of the interest of each individual in the Douglas Bank, supposing it small, can make no difference, if the interest is direct, for a declinature will not be repelled when the concern of the judges relation is small, and sustained when great. Majus et minus non variant speciem. At length the Court examined into the state of its members present, and found that a similar declinature lay against so many of the judges, that, if it was sustained, there would not be a quorum left; and therefore they, from the necessity of the thing, repelled the declinature. They must determine the causes which come before them; and it was considered that declinatures must be repelled, when, by their being sustained, there would remain no quorum for determination.