In some cases, though the Court has jurisdiction, objec tion may be taken to the acting of some particular Sheriff. This is called proponing a declinature; and there are two grounds upon which it may be done, that of relationship to one of the parties, and that of interest in the matter at issue.

1. Declinature on ground of Relationship. - Declinature upon the ground of relationship depends upon statute. The Act 1594, c. 216, made it incompetent for any judge of the Court of Session to sit or vote in any action in which a father or brother or son might be pursuer or defender. The Act 1681, c. 13, besides extending the preceding Act to all courts, extended the degrees forbidden by it to those of affinity, and added as degrees which were to exclude those of uncle and nephew by consanguinity. These statutes enumerate all to whom objection can be taken on the ground of relationship. Attempts to extend the degrees by implication have been discountenanced. Thus, it is no ground of declinature that the judge's wife is sister to the defender's wife, (a) or that the judge's

(a) Goldie v. Hamilton, 16 Feb. 1816, F.C.

neice (b) or grand-neice (c) is married to one of the parties. These decisions were pronounced upon the ground that the second part of the Act of 1681, excluding uncles and nephews, did not exclude uncles and nephews by affinity. It is not necessary that the relationship should be to the proper pursuer or defender. It is sufficient if it be to any party immediately and directly interested in the suit. Thus the brother-in-law of a mandatory (who is interested in the expenses) must be declined. (d) For the same reason, a father-in-law was excluded in a case in which his son-in-law was substitute heir to the claimant of an entailed estate, the right to which was in dispute.(e) And the statute applies though the relative may be suing in some capacity in which he has no personal interest. Thus, where a pursuer was suing for behoof of a statutory Board of Commissioners, his brother was declined, even though the defenders made it clear that he had no personal interest by disclaiming all purpose of holding him personally liable for expenses.(g)

2. Declinature on the ground of Interest.-The objection, that a judge is interested in the matter at issue, does not depend upon statute; and there is occasionally considerable difficulty in ascertaining when the interest is of such a character that the objection ought to be held good or is so shadowy that it may be waived, and the Court have held themselves, in judging of such objections, at liberty to take into view the convenience or inconvenience of sustaining them in the particular case. The interest need not always be

(b) Erskine v. Drummond, 28 June 1866, 4 Macph. 867. 1787, M. 2418.

(c) Gordon v. Gordon's Trustees, 2 March 1866, 4 Macph. 501.

(d) Campbell v. Campbell, 26 June

(e) Shaw Stewart v. Corbet, 15 May 1821, 1 S. 10.

(g) Highland Road Commissioners v. Machray, 25 June 1858, 20 D. 1165,

pecuniary. For example, if the judge be required as a witness in the cause, he may be declined. (h) This, perhaps, proceeds rather on the ground of inconvenience to the parties than on the supposed interest of the judge. The rule, however, has a wider application. It is not indeed now. held that a judge is disqualified by having once been counsel in the cause; (i) but he is still held to be disqualified wherever his interest is of such a kind as reasonably leads to the supposition that he may not proceed to his duty with an unbiassed mind. Thus, if the judge be trustee for one of the parties under a private trust, he is taken to be so much interested in it as to be disqualified. (k) But it is not enough to disqualify him that he is one of a numerous body of statutory trustees,(1) or still less that he is one of so large a body as the Commissioners of Supply.(n) Being interested as a proprietor in one of the parishes concerned, was held not to disqualify a judge to decide a question of a pauper's settlement; but this proceeded in part on the ground that the parish was large, and that the disqualification, if sustained, would have applied to nearly the whole bench.(o) It is sufficient for a judge to decline that he is a shareholder or partner (not merely as trustee, (p) but in his own right) in a joint-stock company which is pursuing or defending ; (q) though in a case where the pecuniary interest of each judge was small and remote, and where sustaining the objection.

(h) Clark v. Wardlaw, 15 Jan. 1845, 7 D. 268.

(i) King v. Patrick, 27 Nov. 1841. 4 D. 124.

(k) Martin v. Heritors of Kirkcaldy, 23 Jan. 1840, 15 F. 379.

(1) Blair v. Sampson, 26 Jan. 1814, 18 F. C. 1814 (to 1815) 501.

(n) The Lord Advocate v. Edinburgh Commissioners of Supply, 5

June 1861, 23 D. 933.

(0) Gray v. Fowlie, 5 March 1847, 9 D. 811.

(p) 31 and 32 Vict. c 100, § 103.

(q) Aberdeen Town and County Bank . The Scottish Equitable Insurance Company, 3 Dec. 1859, 22 D. 162; Wauchope v. North British Railway, 17 Dec. 1863, 2 Macph. 333-4.

disqualified nearly half the court, the objection was very reluctantly sustained. (r) This was a case where the judges were interested as partners of a life insurance company, and to prevent the recurrence of such difficulties, it has lately been enacted that it is not to be deemed a ground of declinature that a judge is a partner of any joint-stock company carrying on as its sole or principal business the business of life and fire or life assurance. (p) Where the interest is contingent, such as that if the defender's title be held bad the judge's own title to an adjoining property may be challenged, the declinature is repelled. (8)

3. Declinature cannot be waived.-Where there is a good ground for declinature it cannot be waived by the parties. In the case of relationship the objection depends on statute, and the whole proceedings, if it be neglected, are under a statutory nullity. At whatever stage the objection may be discovered it must be sustained, and the action commenced anew before another judge.(t) On public grounds the same rule is to be followed where the judge has a disqualifying interest in the suit. Parties are generally so unwilling to state a personal objection to a judge, and it would be so bad an example to allow a judge to decide a question in which he had a pecuniary interest simply because the parties were silent, that no option is left. It is the duty of the judge himself to state the objection; and in most cases this is the way in which the point arises. In the Court of Session it is for the other judges to say whether the grounds of the declinature are good. In the Sheriff Court,

(r) Borthwick v. Scottish Widows June 1862, 24 D. 1132.

Fund, 4 Feb. 1864, 2 Macph. 595.

(8) Belfrage v. Davidson's Trs., 20

(t) Ommanny v. Smith, 13 Feb. 1851, 13 D. 678.

if the Ordinary Sheriff-Substitute decline, the case may be proceeded with by one of the Honorary Sheriffs-Substitute, or, if there be none who can act, by the principal Sheriff. In this case, however, it would probably be in the power of the principal Sheriff to review the grounds of declinature, and to remit to the Sheriff-Substitute to proceed. If the Principal be disqualified, the Sheriff-Substitute may, notwithstanding, act;(u) but the parties lose the benefit of the right of appeal. Should such a case occur as that all the judges of the Sheriff-Court were to decline, the party wishing to proceed might appeal, (v) and the Court of Session would have to decide what course should be followed.

(u) Wallace v. Colquhoun, 21 Jan. 1823; 2 S. 139; 1579, c. 84.

(0) The Act 1555, c. 39, providing that no advocation of causes be taken

from the Judge Ordinary, excepts the case of the Sheriff-Principal or the Judge Ordinary being a party.

F