Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 FORM OF PROCESS.

M'Vicar
v.
Macallum and Ker

1765. August.

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An error in a first extract of a decreet may be corrected in a second, though thereby the second be disconform to the record, provided that it is conform to the warrants. See Fount. Vol. I. p. 686, Brown against Burnside. The Lords were of the same opinion in an extract from the Laigh Parliament House, Neil M'Vicar against Macallum and James Ker, Keeper of the Records, August 1765.

When an Ordinary takes a cause to report, and makes avizandum to the Lords, and orders informations, and, these being drawn, grants a warrant to enrol and to give them in; it is still competent for him, on the application of the parties, or either of them, to allow an additional paper either on one side or both, as he thinks proper. And as, by making avizandum to the Lords, the Ordinary is functus, therefore, after the Lords have given their interlocutor, the cause does not return to the Ordinary, unless there is a special remit for that purpose. But it is otherways in a petition and answers: a petition, reclaiming against the interlocutor of an Ordinary, does not exauctorate the Ordinary after the decision is given by the Court. The cause returns to the Ordinary without any remit, and may be further proceeded in; and when this has been contested, it has been so found by the Lords. A distinction was attempted in the cause, M'Lean against M'Lean, between causes proper for the Inner-House, such as reductions, even where there was a warrant to discuss. And it was alleged, that, in these, if the reasons of reduction were determined by interlocutor of the Court, expenses could not be got from the Ordinary, unless there was a special remit of the cause back again to him; and the reason given was, that the first remit to discuss the reasons, was at an end, and the cause, being an Inner-House cause, remained there, unless there was a new remit. But this reasoning was too subtle: an Inner-House cause remitted to the Outer-House becomes an Outer-House cause to every effect: And so the Lords thought, M'Lean against M'Lean.

FRAUDULENT BANKRUPT. See Bankrupt.