Scottish Court of Session Decisions

The Lord President to-day mentioned that since the debate the pursuer had been married to his grandniece, and that as he was thus related by affinity to one of the parties, he desired to decline giving his vote.

The Lord Justice-Clerk said that the point raised by this declinator was an important one, but it had been already settled by several decisions. In the case of Sir William Erskine v. Robert and Henry Drummond, 28th June 1787 (M. 2418), the Lord President declined in respect Mr Henry Drummond was married to his brother's daughter. The declinator was repelled, and the determination was ordered to be marked in the Books of Sederunt, which proves that it was intended that it should be followed as a precedent in future. It had been previously decided, in the case of Calder v. Ogilvie, 31st January 1712, that a judge might vote in the cause of one who was married to his niece, unless where the niece was the proper party, and the husband was only called for his interest. These decisions proceeded upon the statute 1594, c. 212, which only prohibited judges from voting where their father, or brother, or son was a party; and the Act 1681, c. 13, which extended the prohibition to all relations in the first degree, whether by consanguinity or affinity, and farther provided that no judge should sit or vote in any cause where he is uncle or nephew to the pursuer or defender. The latter part of the Act of 1681 did not, however, like the former, exclude uncles or nephews by affinity. The same decision was pronounced in three cases referred to in Brown's Supplement, vol. 5, p. 424.

The other Judges concurred, and the Lord President's declinator was therefore repelled.