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Scottish Court of Session Decisions >>
Lathoker v Lord Oliphant. [1607] Mor 365 (24 February 1607)
URL: http://www.bailii.org/scot/cases/ScotCS/1607/Mor0100365-001.html Cite as:
[1607] Mor 365
A decree pronounced by an inferior judge, after he was discharged by an advocation is suspended; although the presenter of the advocation had afterwards appeared in many diets of process.
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Lathoker charged Oliphant upon a decreet of the Commissary of St Andrew's to pay to him the price of certain farms, whilk the said Oliphant suspended, alleging, That the decreet was null, as given spreto mandato judicis, in so far as the judge was discharged by an advocation, and notwithstanding thereof proceeded.—Against this reason it was excepted, That the raiser of the advocation past in effect from it; because, after the raising thereof, the party had compeared in diverse diets of the process, and given in defences and eiks; and so, in effect, had consented in the judge.—It was answered, That nothing could take away the advocation, but the express renunciation of the party; and therefore, seeing the judge had contemned the Lords command, the compearance of the party, after the advocation, and the judge discharged, could not make his proceedings lawful.——In respect whereof, the Lords repelled the allegeance, and found the reason of the suspension relevant.
