An advocation produced after decree pronounced, but before it was reduced into writing, rendered the decree null, as being spreto mandato.
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An advocation being produced, after the judge had decerned, but before he had cleared and dictated the minute of the decreet; which he did upon the Bench, immediately after production of the advocation:
The Lords found the decreet null, as being spreto mandato; but in respect of the circumstances, and that the judge had decerned before, as said is, they turned it in a libel.
The saurer-depute, Reporter.Gibson Clerk.
Fol. Dic. v. 1. p. 27. Dirleton, No 396. p. 195.*** Stair thus reports the same case:
Christian Holmes having obtained decreet against John Marshall, before the Sheriff of Lanark; he suspends and raises reduction on this reason, that the decreet is null, being spreto mandato judicis of the Lords, after an advocation produced judicially.—It was answered, non relevat, because the decreet was pronounced before the advocation was produced.—It was replied, That by an instrument produced, taken judicially in the hands of the Clerk of Court, and subscribed by him, it is instructed, That the sheriff-depute, immediately after the calling of that cause, did only express generally, Decerns; and immediately after the advocation was produced, he did dictate the sentence to the clerk; so that before the judge was fundus officio, by expressing the special tenor of the decreet, the advocation being produced, the decreet is simply null, as spreto mandato, and cannot be sustained, even as to the libel thereof, which is sometimes done by the Lords ex gratia in null decreets, but never in those that are spreto mandato.
The Lords found the reason relevant, and proven by the instrument under the hand of the same clerk who subscribes the decreet, that before expression of the special tenor of the sentence, the advocation was produced; yet seeing that the Sheriff might have doubted, whether the general expression was sufficient, not to admit the advocation, The Lords only turned the decreet into a libel.
