Minutes of process cannot be made up ex intervallo by the oaths of the advocates upon the other side, nor by oaths of the clerks and judges.
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Brown having pursued Thomas Wilson upon this ground, that he had assigned to Wilson a debt due by the Countess of Winton in trust, by which he was obliged to do diligence, and did it not till the Countess was dead, being a liferenter, having neither heir nor executor; the defender alleged, That this cause being called in February last, the libel was referred to the defender's oath, who deponed, that he had received that assignation for obtaining satisfaction to himself of a debt due by the cedent, but upon express terms in words, that he should be obliged for no diligence, but take the money if he got it, whereupon he was assoilzied by the Ordinary, but the clerk forgot to minute his oath, or the absolvitor thereon; the verity whereof he referred to the pursuer's advocate's oath. It was answered, That judicial processes cannot ex intervallo be made up by clerks, either upon their own memory, or the advocates', or even the Judges, but must be minuted ex incontinenti, albeit once minuted and lost, the tenor of it might be proved, otherwise the lieges would be in great insecurity.
The Lords found, That the minute never having been written, could not ex intervallo be made up by the oath of the advocate, against whom the minute was alleged, and the like as to the clerk or Judge; for there was a reduction at one Buchannan's instance, against Lieutenant Colonel Osburn, of a decreet of the English Commissioners, bearing, His compearing and consenting to a determination upon a judicial submission to these Commissioners, which was not minuted when done but some months thereafter, which therefore was reduced by the Lords.
