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Scottish Court of Session Decisions >>
Boid v Simpson. [1678] Mor 371 (3 July 1678)
URL: http://www.bailii.org/scot/cases/ScotCS/1678/Mor0100371-012.html Cite as:
[1678] Mor 371
Advocation though proceeding upon the ground of the incompetency of a particular Judge, found to debar all other inferior judges, tho they might be competent.
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Mr robert boid, minister, having obtained decreet against Robert Simpson, before the Commissaries of Glasgow, for defaming him as a perjured person; he suspended, on this reason, that the decreet was null, because he being first pursued before the Bailie of Cunninghame, in this cause, he did raise advocation; which doth not only advocate that cause as to that summons, or instance before that judge, but as to all other instances before that or any other inferior judge; and the citation, on the advocation, put the charger in mala fide to pursue that cause any where, till the advocation was discussed; which hath ever been sustained, otherwise advocations would import nothing, if a new instance, or another judge might elude the same; but, in this case, not only was the advocation intimate to the charger, but produced to the Commissary, and a defence founded thereon, which was unjustly repelled.—It was answered, That if the advocation had proceeded upon reasons, for which the Lords were only the proper Judges, and, therefore, craving the cause to be advocate to them, it would have stopped all inferior judges; but this advocation, proceeding only upon incompetency of a bailie to discuss defamation or slander, which is proper to the Commissaries, it did not impede the party to pass from the process, and to insist before the Commissary.—It was replied, That whatever was the reason libelled in the advocation, it brings the cause before the Lords; and many other reasons might have been added at the discussing; and the tenor thereof doth prohibit all inferior judges to proceed in that cause.
The Lords found, That the Commissary ought not to have repelled the defence upon the advocation, and therefore allowed the defender to answer as in a libel, without annulling the decreet; and because he had a reason against the probation, ordained the testimonies of the witnesses, before the Commissaries, to be produced.
