Scottish Court of Session Decisions

Lord Johnston, who before his elevation to the Bench had acted as counsel for the Free Church of Scotland in a series of litigations regarding its property, was Lord Ordinary on the Bills. In his Lordship's Bill Chamber Hearing Roll was set down a note of suspension and interdict at the instance of the Free Church of Scotland against Macrae and others. This was not a case in which he had acted as counsel, but was one of the series of litigations. His Lordship appeared in the First Division and proponed his declinature, saying—“I have to ask your Lordships to deal with certain cases that have appeared in the Bill Chamber Hearing Roll to-day, the first of which is the Free Church of Scotland v. Macrae, from Aberfeldy. This is not a case in which as counsel I have taken part, but it is in connection with a series of litigations in which I have acted throughout as counsel for the Free Church of Scotland and for the local parties connected with it. Under these circumstances I thought it proper to decline. But looking to the fact that they are Bill Charnber cases I cannot do so without your Lordships' assistance under the stattlte.”

The Court of Session Act 1821 (1 and 2 Geo. IV, cap. 38), sec. 4, provides—“That in case of the death, sickness, necessary absence, or legal declinature of the Lord Ordinary on the Bills during the period of the Session, but at a time when the Court is not actually sitting, any one of the permanent Ordinaries, on a due statement by any of the Clerks of the Bills of such fact and of some urgency in the case, shall and may pronounce on any Bill which may in such case be laid before him such interlocutor as circumstances may require without prejudice quoad ultra to the provisions of the aforesaid, and also without prejudice to the power of either Division, upon legal declinature of the Lord Ordinary on the Bills when represented to them in any case, to remit the same to another Ordinary in his stead.”