Effect of an Order to stop Extract. - Reduction repeated incidenter.
Hamilton v. Clark
Date: 10 December 1746 Case No. No 392.
A decree cannot be extracted after a representation on the merits of the cause, ordained to be answered, tho' a fortnight has elapsed since the interlocutor.
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Gilbert Clark, writer in Edinburgh, pursued John Hamilton, Ensign in the service of the States of Holland, on the passive titles, as charged to enter heir to his father; and no renunciation being produced, obtained decreet against him: But a representation being given in, it was ordered to be answered, and, in the mean time, extracting stopped, 3d July 1746.
Mr Clark extracted his decreet, 31st October, in respect, as it bore the stop expired in a fortnight.
A complaint was given in, at advising which it was observed, that the act of Sederunt 1708 concerned only stops subjoined to representations, craving opportunity to be heard viva voce, as was then the custom, but not on representations discussing the whole merits of the cause, and ordained to be answered.
The Lords found that the decreet was unwarrantably extracted, and recalled the same.
Act. Maitland,Alt. A. Macdowel.Clerk, Forbes.
Fol. Dic. v. 4. p. 151. D. Falconer, v. 1. No 146. p. 185.
