Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Learmonth
v.
Thomas Wilson and His Wife

1684. January.

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Mr Thomas Learmonth having complained to the Lords, by bill, in his own name, That a decreet against his deceased client, the Laird of Ratho, a tutor for whom he had compeared, was surreptitiously extracted in terms different from the minutes; and thereupon, the Lords having ordained the decreet to be re-produced, Mr Thomas insisted upon his new defences, which occasioned new interlocutors: but the pursuer perceiving that the apparent heir, who bruiked the defunct's estate by an expired apprising, lay by, and did not crave any amendments to shun a passive title, he alleged there could be no ratification of the decreet, unless there was a lawful contradictor; and that Mr Thomas's mandatum, as advocate, expired with the death of the tutor: and though the defunct's other creditors should concur, as they do not, yet they could only crave that the decreet should be conform to the minutes that were passed before the defunct's decease; but an advocate who had no interest could crave no rectification. The Lords adhered to the new rectifications craved by the advocate, they being materially just, though there was no other contradictor. This was irregular.—Castlehill's Pratt, tit. Decreets, No. 33.

Page 108, No. 403.