Scottish Court of Session Decisions

Subject_1 PROCESS.
Subject_2 SECT. XVII.

Form of Extracted Decrees.

Robert Johnston of Keltoun,
v.
George Houston, Son to the Deceased Patrick Houston, Merchant in Glasgow

Date: 20 January 1713
Case No. No 329.

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In a process, at the instance of Robert Johnston against George Houston for reducing a decreet in foro, holding the pursuer, as confessed upon the verity of a debt referred to his oath; the Lords repelled this nullity, objected against the creet, That it was obtained at the instance of tutors nominate acting for George Houston their pupil, and no nomination of tutors produced therein; in respect the pursuit was in their name, founded on a decreet dative, decerning them executors for their pupil, and a licence to them to pursue, procured before the commissaries, upon production of the nomination, which is probatio probata. The Lords also repelled this nullity, That the decreet proceeds upon a licence to pursue, which excludes sentence till confirmation intervene, and yet doth not bear, that the debt was confirmed, or the confirmation produced; in respect the defender now produced the confirmation of a date anterior to the extracting of the decreet; and though law requires the debt to be confirmed before extracting, there is no necessity to mention the confirmation in the decreet.

Fol. Dic. v. 2. p. 204. Forbes, p. 648.