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James and George Russels pursued James Clerk and his Sons before the Sheriff-depute of Stirlingshire for a battery; their libel concluded also, that the defenders should pay an assythment, and find caution of lawborrows. The Sheriff decerned in the lawborrows, and found expences due; but made no mention of assythment in his sentence. The Clerks suspended; the Lord Ordinary turned the decreet into a libel; and then, besides adhering to the Sheriff's interlocutor, found assythment and damages due.
Pleaded in a reclaiming petition for Clerks; The Ordinary's interlocutor is not agreeable to form, and cannot subsist; for that a decreet, which exceeds the demand of the pursuer, is intrinsically null; now, in this case, the charge of the pursuers was the decreet of the inferior judge; nor did they ever demand more than that the letters should be found orderly proceeded.
The Lords were of opinion, That whenever a decreet is turned into a libel, not only the decreet of the inferior judge, but also the original libel, is understood to be before the Court; and therefore
“They refused the petition.”
Petitioner, Andrew Pringle.
Fol. Dic. v. 4. p. 148. Fac. Col. No 24. p. 44.
