Mary Brown v. Henderson of Brignies, and his Tutor
Date: 1 December 1693 Case No. No 421.
The clerk, of an inferior court's assertion of an alleged consent of a party or his procurator, extraneous to the ordinary steps of process, not probative.
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Mary Brown against Henderson of Brignies, and his tutor; the Lords found, in the general, that a clerk of an inferior court's assertion, that a party or his procurator consented to do such a thing, was not binding nor obligatory on them, unless their consent were otherwise instructed, and that they had subscribed it, and that the Judges subscribing the decreets now with the clerk, by the act 3d, of Parliament 1686, did not alter the case; yet here, in this circumstantiate affair, the Lords found the decreet probative of their consent to a roup of the land the next year, seeing she had passed from her two defences, on this concession, viz. that the minor was not infeft, and the tutor had not made inventory; which she would not otherwise have done, and that they had homologated the decreet; for though in extraneous points, the acts of clerks of Courts are not to make faith, yet in actibus officii et processus credendum est clerico; as if a party or his procurator declare he passes from such a conclusion of his libel, and insists only for the remanent hoc loco, such declarations and restrictions need not be subscribed. Vide 24th July 1661, Puchannan and Osburn, No 411. p. 12528; but there it was a making up a consent ex intervallo on the reminiscence of the Judge and clerk.
Fol. Dic. v. 2. p. 248. Fountainhall, v. 1. p. 574.
