Holding how proved. - What proof that a decree had been extracted.
John Dickson of Hartrie v. Alexander Miln of Caridden
Date: 3 July 1705 Case No. No 575.
A decree being marked in the respond-book as extracted, and an attestation from the keeper of the minute-book, that the dues of extracting were paid, not sustained as sufficient proofs that such a decree was extracted, it not being found in the register.
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In the action at the instance of Dickson of Hartrie, against Alexander Miln of Caridden, an allegeance of res judicata being proponed by the defender, who could not produce the extracted decreet, but only the whole warrants thereof, it was alleged for the pursuer, That albeit such a decreet could now be extracted from these warrants no extract being produced, it stands in the terms of a naked interlocutor, and the matter may be reconsidered, which is never denied to any party applying upon new grounds before extracting; for nothing but a decreet already extracted makes a res judicata.
Answered; For proving the decreet to have been extracted, the defender adduceth an attestation under the hand of the keeper of the minute-book, that the dues were paid, which is never done till after extracting, and the Respond-book in the clerks' chamber, where the decreet is again set down as extracted, and so marked by the extracter. Now no decreet is inserted in the Respond-book until it be signed by the clerk, that book being the rule of counting for the clerk's dues.
Replied; The evidences and instructions produced do not prove that the decreet founded on was extracted; for no such decreet is found booked. It is true the Respond-book mentions a decreet betwixt parties of the like surnames, but non constat that the parties were the same. And albeit that were cleared, yet the presumption from thence is but weak; for decreets in the Respond-book, whereof the dues are paid, are many times stopped and recalled and sometimes never taken out. Nay further, it appears from the records of decreets pronounced about that time, that the decreet founded on was never booked. And though such a decreet had been given out and extracted, it might have intrinsic nullities; it mlight have been recalled; it might have been paid for, lying in the clerk's hands, and never signed, nor taken out. And to allow the marking of a decreet by a servant, without any public authority, for the clerk's private use and conveniency, to supply or make up the tenor of a formal writ, is a stretch and absurdity to be exploded.
Duplied, It cannot be inferred that the decreet was never extracted from its not being booked, seeing many decreets at that time were never booked, nor the warrants carried to the laigh Parliament House, which was not so ordinary twenty-seven years ago as now; and yet extracts have been taken out conform to such old warrants as are yet in the clerk's hands. Now will any man say, that the not booking, or not transmitting these warrants to the low Parliament House, should so prejudge one that hath lost his first extract, that he cannot take out a second at any time.
The Lords found no sufficient probation that there was a decreet extracted, and allowed parties to be heard in causa.
