Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN NISBET OF DIRLETON.

Forbes of Culloden
v.
Robert Ross and Others

Date: 26 November 1675

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A decreet, at the instance of Forbes of Culloden against Robert Ross and others, before the commissary of Ross, being questioned upon that ground,—That the said commissary had committed iniquity in repelling relevant declinatures; whereof one was upon the account of his relation to the pursuer, being the commissary's uncle; and another was upon account of the nature of the action, alleged not to be consistorial: and the subject of the process, though it had been proper otherwise, yet being far above the sum of 200 merks, was such, as by the regulation, the commissary could not be judge in. And likewise, in respect that the commissary did assume to himself a power to modify a great sum, extending to above £6000, for the charges the pursuer had been at in prosecuting a plea by warrant of the defenders; and wherein he and they were concerned: and the said modification was upon no other probation but the pursuer's oath; and, that the modifying of so large a sum did belong, ex nobili officio, to the Lords of Session privativè:—

Some of the Lords were of the opinion, that the commissary, notwithstanding of the relation foresaid, could not be declined; seeing there is no statute that judges may be declined upon that account. And, by the Act of Parliament (212 K. Ja. VI. his 14 Par.) “Anent the Declining of the Lords of Session,” there is no other relation that can be a ground of declinator, but where the judge is related to either of the parties, as father, brother, or son. And yet others were of the opinion, that a nephew, being of so near relation, may and ought to be declined; in respect, by the common law, persons of that relation are most suspected, and cannot be judges. And, by the said law, a judge may be declined upon any ground that may decline a witness: and there is more reason to decline judges than witnesses; seeing there may be penury of witnesses; and they may be so necessary, though related to the parties, that others cannot be found. And the said Act of Parliament, as all Acts of Parliament, especially such as are correctory juris communis, ought to be taken strictly; and cannot militate, but in the case therein intended and expressed. And the said Act is upon special considerations, in relation to the Lords of Session; and particularly, of the eminent integrity that is presumed, and ought to be in the supreme judicatory.

The Lords, without entering upon the debate of the said other points, turned the decreet in a libel.

Forret, Reporter. —, Clerk.

Page 148.