An advocation cannot be received, after sentence, though before extract.
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Hume of Kames being infeft upon an apprising of the lands of Northfield, led against Lamertoun, pursues the tenants for mails and duties, and obtains decreet; which was suspended, and reduction thereof raised on this reason, That it was spreta authoritate judicis, there being an advocation judicially produced, before the Sheriff, before pronouncing, at least before the extracting of this decreet, in so far as the suspender came to the Sheriff-court, at the ordinary time of the court-day, at eleven hours, and produced the advocation; but the Sheriff had sitten down that day, contrary his custom, at ten hours, and had pronounced the decreet before eleven hours.—The charger answered non relevat, That the advocation was produced before extract, not being before sentence pronounced; because, albeit inferior judges are accustomed sometimes to stop their own decreets, after they are pronounced, before extracting, yet sententia definitiva, est ultimus actus judicis, and the extract is but the clerk's part, so that it can be no contempt, albeit the judge would not prohibit the extract; and as to the other member, that the Sheriff sat his court an hour before the ordinary time, non relevat, unless he did it of purpose, to anticipate this advocation.
The Lords found the first member of the reason, that the advocation was produced before extract, after sentence, non relevat; and as to the other member, they found it relevant, as it is circumstantiate, to infer that it was done of purpose to anticipate the advocation, without necessity to prove otherways the purpose, and in that case declared, if the same were proven, they would turn the decreet in a libel.
