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Scottish Court of Session Decisions >>
Wardlaw v Wardlaw. [1675] Mor 7497 (30 June 1675)
URL: http://www.bailii.org/scot/cases/ScotCS/1675/Mor1807497-216.html Cite as:
[1675] Mor 7497
All inferior judges hold courts after Michaelmas, without dispensation.
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Margaret Wardlaw having obtained a decreet against her brother, and thereupon denounced him, pursues reduction of an assignation made by him upon the act of parliament 1592, c. 128. The defender alleged absolvitor, because the pursuer's decreet, whereupon her horning proceeded, is null, as being pronounced by the Sheriff of Fife in vacance time, without dispensation. It was answered, That the decreet was after Michaelmas, which albeit in the vacance is the Head Courts of all the Sheriffs, and nothing done at that Court can be null, and consequently at none thereafter, in respect of the general custom of all inferior Courts, to keep Courts after Michaelmas without dispensation.
Which the Lords found relevant.
Fol. Dic. v. 1. p. 502. Stair, v. 2. p. 337.*** Gosford reports this case:
In a suspension raised by Wardlaw of a decreet pronounced against him in the Sheriff Court of Fife, upon this reason, That the decreet was null, being given in the time of vacation, without a dispensation; it was answered, That the decreet was given in October, after the Head Court at Michaelmas, and so needed no dispensation, it being the custom of Sheriff Courts to proceed in all actions depending before them after the Head Court. It was replied, That the vacation being from the rising of the Session until the sitting down thereof, the suspender was in tuto not to compear. The Lords did consider this as a general case, and found that if the charger could prove that it was the custom of that Court to proceed legally in actions after the Michaelmas term, that the decreet should not be null, yet they reponed the defender, if he had any just defence, to propone the same before the Ordinary.
