Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Mr George Bannerman
v.
Dundas of Morton

Date: 25 February 1681

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Mr George Bannerman pursues reduction of a decreet absolvitor upon a process at his instance, against one Hamilton, as principal, and Dundas of Morton, and Hugh Sinclair, cautioners in a bond, whereunto he had right by progress: the cautioners were assoilyied; the reason of the decreet being, that he passed from them. The reasons of reduction were, first, That this decreet was unwarrantably extracted, having been scored in the minute-book, as yet appears by the same, and being extracted after Mr George went abroad. 2do. Because the assertion of the clerk cannot instruct that he passed from the cautioner, unless it had been subscribed under his hand; for, though the assertion of the clerk may instruct a passing from pro loco et tempore, which only perimit instantiam, yet it cannot a passing from simpliciter, which perimit causam. 3tio. The decreet, being unwarrantably extracted, must be turned into a libel; at least turned back unto the minute, as if it had not been extracted; and therefore, albeit the pursuer had passed from the cautioner simply, he may resile before a warrantable extract.

It was answered, to the first, That the scoring of the minute-book can prove nothing ex intervallo; but this decreet was pronounced four years ago; and it were of dangerous consequence to reduce decreets, if not recently quarrelled, upon scoring them in the minute-book, which might be done by any hand; and there is no reason to put all decreets in the power of the keeper of the minute-book. To the second, Whatever is ordinary to be proponed without writ, is sufficiently instructed by the clerk's minutes, and extended decreet; for, upon his assertion, depend all the interlocutors, both of relevancy and probation, and it is very ordinary to pass from some defenders simpliciter; but, if there were a decree of consent of special nature, it behoved to be upon a subscribed warrant.

The Lords considering that the decreet was extracted when Mr George was abroad, they did take the oath of the keeper of the minute-book; and he deponing affirmativè, they did repone against the decreet, as if it had been unextracted; and found that Mr George might resile before a warrantable extract: and so had no need to determine whether his passing from simpliciter required his subscription.

Vol. II, Page 868.