1758, 8285.-Pringle, 28. Feb. 1765, 3287.- Finlay v. Birkmyre, 29. July 1779, 3188.-Muir v. Lockhart, 1. June 1813.-Coutts v. Crawfurd, 17. Nov. 1795, 14958. -Rowan v. Alexander, 22. Nov. 1775, 11371.—Moir v. Mudie, 2. March 1820.-Robertson, 15947. — Shaw v. Calderwood, 21. Jan. 1688, 3196.--Kennedy v. Arbuthnot, 13. July 1722, 1681.—Gray, 16. July 1672, 1396 & 3324. -Irvine v. Tait, &c. 3. June 1808, ib. App. No. 6. voce "Deathbed." - Paterson's Trustees v. Johnston, Jury Court, 24. June 1816, Murray, I. 71.- Hiddleston v. Goldie, 12. April 1819, ib. II. 120.-Robertson v. M'Caig, 1. Dec. 1823, S. & D. II. 544.

DECLINATURE OF JUDGES.

Partiality in a judge may arise from various causes; and it may be urged by either of the parties, or by the judge himself, as an objection to his deciding the cause. General averments of solicitation and importunity, or the Judge Ordinary in the Outer-House" leaving the "bench before 12 o'clock to reason and vote in mat"ters depending upon the Inner-House," though once good grounds of declinature, have long since ceased to be so. But there are two grounds which are still sustained, viz. relationship or enmity to either of the parties.

Mr Erskine, I. 2. 26, states, "that no restraint was "laid on our supreme judges, by the ancient practice, "from deciding on the causes of their nearest kins"men." But the act 1594, cap. 212, declares,

That na senatoures of the College of Justice, ordinar or extraordinar, sall sit, or vote in onie action or cause intended, or to be intended before them, quhair the parties, persewer or defender, is aither their father, brother, or sonne; swa that the father sall in na wise be judge in the sonnis case, the sonne in the father's case, nor the brother in the brother's, bot be declined therein.

And by 1681, cap. 13, it is ordained, ·

That this declinatour shall for the future be farther extended to degrees of affinitie, as well as consanguinity, so that in all time coming, no senatour of the Colledge of Justice, ordinary or extraordinary, shall sit or vote in causes, where the pursuer, or defender, is either father, brother, or son-in-law to him; and also that he shall not sit, or vote, in any cause, where he is uncle, or nephew, to the pursuer or defender: And it is hereby declared, That this act shall be extended to the Lords of Privy Council and Exchequer, and the Commissioners of the Justiciary, and to all other judges and judicatures in the kingdom, who may be declined where they are related to the party, pursuer or defender, in the degrees foresaids.

The act 1555, cap. 39, declares,

That na advocation of causes be taken be the Lords fra the judge ordinar, except it be for deadlie feede, or the schireffe principal, or the judge ordinar be partie, or the causes of the Lords of Councell and their advocates, scribes and members.

Lord Stair mentions, that "declinators are not com"petent against any of the Lords (of Session) upon "pretence of enmity, hatred, or prejudice against ei"ther party; for the Lords are supposed to be men of " greater virtue than to entertain such."

ACTS OF SEderunt.

Among the acts of sederunt, those may be first noticed, which relate to the objection of interest in the cause.-A. S. 22. July 1774, related to a declinature moved by some of the judges, that they were related to different partners of a bank in the country not chartered: the declinature was repelled.—A. S. 22. Jan. 1789, related to an election question, in which some of the judges urged a declinature on the ground of their being heritors and electors: but the plea was repelled, and by A. S. 1. Feb. 1820, it was resolved, that being proprietor in a chartered bank is not a declinature. The other acts of sederunt are, A. S. 6. Nov. 1677, which determines, that receiving a solicitation, unless immediately repelled, or if offered by letter, produced to the Lords, is a relevant ground of declinature.-By A. S. 28. June 1787, the Lords "having considered the act 1681 with "former precedents, find, that affinity in the case of uncle "and nephew is no ground of declinature,"-and in A. S. 16. Feb. 1816, reference is made to an interlocutor finding the affinity of husband of a sister-in-law to be no ground of declinature.

Erskine, I. 2. 24.-Tait's Justice of Peace, p. 102.

DECISIONS.

Erskine v. Drummonds, 28. June 1787, Mor. 2418.-Binny, 1687, ib. 3420.-Goldie, 16. Feb. 1816, F. C.-See Statute 1579, cap. 84.

DIVORCE ON THE GROUnd of deserTION.

From the nature and purposes of marriage, it is a maxim of law, that the spouses must adhere and cohabit. To enforce this law, the statute 1573, cap. 55, declares,

That in all times bypast, sen the trew and Christian religion was publicklie preached, avowed, and established within this realme, namelie, sen the moneth of August, the zeir of God ane thousand five hundreth threescoir zeires, it hes beene, and in all times cumming sall be lauchfull, that quhatsumever person or persones joyned in lauchfull matrimonie, husband or wife, divertis fra uthers companie without ane reasonable cause alledged, or adduced befoir an judge, and remainis in their malicious obstinacie be the space of foure zeires, and in the meane time refusis all privie admonitions, the husband of the wife, or the wife of the husband, for dew adherence, that then the husband or the wife sall call and persew the obstinate person offender befoir the judge ordinar for adherence; and in case no sufficient causes be alledged, quhairfoir na adherence suld be, bot that the sentence proceedis against the offender refusand to obey the samin, the husband or the wife sall meene themselves to the superior magistrate, videlicet, the Lords of Session, and sall obteine letters in the four formes conforme to the sentence of adherence; whilk charge being contemned, and therefoir being denunced rebell, and put to the horne, then the husband, or the wife, to sute the spiritual jurisdiction and power, and require the lauchfull archbishop, bishop, or superintendent of the countrie, quhair the offender remaines, to direct

privie admonitiones to the said offender, admonisching him or her as befoir for adherence; quhilkes admonitiones, gif he or she contemptuously disobeys, that archbishop, bishop, or superintendent, to direct charges to the minister of that parochin quhair the offender remaines, or in case there be nane, or that the minister will not execute, to the minister of the nixt adjacent kirk thereto, quha sall proceede against the said offender with publick admonitions, and gif they be contemned, to the sentence of excommunication, quhilk anis being pronunced, the malicious and obstinat defection of the partie offender to be ane sufficient cause of divorce, and the said partie offender to tyne and lose their tocher, et donationes propter nuptias.

Bankton, I. 5. 134.-Stair, I. 4. 20.-Erskine, I. 6. 44.-Ferguson's Consistorial Reports.

DOVECOTES.

The statutory limitation as to the right of erecting pigeon-houses is founded on the legal maxim, that no person is entitled to use his property in emulationem

vicini.

The act 1617, cap. 19, is in these terms:

Our Soveraigne Lord, with advice and consent of the Estates of this present Parliament, considering the great inconvenients sustained by the lieges of this realm, through the frequent building of doucats, by all manner of persons, in all the parts thereof, statutes, declares, and ordaines, that hereafter no person nor persons shall have power, libertie, nor priviledge, to build a doucat upon any lands within this realme, neither within burgh nor in the countrey, except