Scottish Court of Session Decisions

Subject_1 CONSUETUDE.
Subject_2 SECT. V.

Process carried on in a wrong form.

Georg Houstoun, and his Tutors and his Curators,
v.
Lord Ross

Date: 15 July 1708
Case No. No 25.

An admiral's decree in absence for not finding caution judicio sisti et judicætum solvi, found null, and turned into a libel, on this ground, that the decerniture or warrant thereof, was not signed by the judge, notwithstanding that, by custom of the court, the judge had not for a long time signed any such decernitures.

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George Houstoun having raised suspension and reduction of a decreet in absence, obtained by the Lord Ross before the Admiral, against the deceast Patrick Houstoun the pursuer's father, upon this ground; That the same was null for being extracted without the warrant of a decerniture signed by the Judge, contrary to the act 3d, Parliament 1686, and might have been of the clerk's manufacture;

Alleged for my Lord Ross: The custom of the Admiral court requires no decreets in absence to be signed by the Judge, but only decernitures upon debate; and the customs of particular places derogate even from a general custom, witness December 14. 1671, Duff and Brown contra Forbes of Cullodden, voce Proof; and the case of Ross of Tullisnaught contra Turner.

Answered for the pursuer: The argument from the custom of the Admiralty is most irrelevant, unless they pretend a power of dispensing with acts of Parliament. For though it be not necessary for a Judge to sign ordinary steps of process, such as continuation of diets, orders about seeing and returning, or production of writs, whereupon nothing is to be extracted; the Judge's interlocutors for an act or decreet, is an indispensable check upon the clerk, any contrary custom notwithstanding. Because indeed, consuetudinis ususque longævi non vilis est auctoritas, sed non usque sui valitura momento, ut rationem vincat aut legem. So custom did not sustain an unwarrantable adjection to a tax-roll, December 15. 1666*. Laws concerning the public good and regulation cannot run in desuetude, Jack contra Town of Stirling, No 3. p. 1838. Yea, the town of Edinburgh's decreet as patrons, against Mr Andrew Massie a professor of philosophy in their college, was reduced, for that some of the interlocutors were not signed; and the commissary of St Andrews's subscribing only the docquet after all the depositions of witnesses, was found to annul the decreet extracted thereon. The decision, December 14. 1671, concerns only the special set of a particular burgh, which differs in different burghs. Nor is that betwixt Ross of Tullisnaught and Turner any more to the purpose; for there the interlocutor not having been signed when pronounced, in expectation of agreement

* L. Colvil against Feuars of Kinross, Stair, v. 1. p. 413, voce Public Burden.

of the parties, the Lords, by voting it over again, ordained it to be signed in præsentia.

The Lords sustained this nullity of the decreet, that the decerniture or warrant thereof was not signed by the Judge; and therefore reduced the same.

Fol. Dic. v. 1. p. 204. Forbes, p. 265.