Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PROCESS.
Subject_3 Proceedings in absence before expiry of the induciæ.

John and James Wilsons
v.
Henry Lochead

Date: 25 June 1778

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[Faculty Collection, VIII. 38; Dictionary, 12,008.]

Braxfield. I am for observing forms, but so that material justice be not hurt. The first judgment was erroneous, for the party was not in Court. It is admitted that, on an application to the Inner-house, matters would have been set to right. That was as well done by enrolling again. The second decreet was valid though the first was erroneous: utile per inutile non vitiatur.

Kaimes. The decreet, taken before the days of compearance, was null and void. It is said that a man is not bound to attend in Court after decreet. This is a mistake, for a pursuer is not bound to call his summons on the first day. The defender must either wait the pursuer's time or put up protestation.

Monboddo. As the cause was called when not in Court, an application to the Court would have been improper.

Justice-Clerk. It is no impeachment of form what has been done here. The interlocutor, signed before the parties were in Court, is to be considered merely as a useless, unmeaning piece of paper.

On the 25th June 1778, “The Lords repelled the reasons of reduction;” altering Lord Alva's interlocutor.

Act. R. Cullen. Alt. Ilay Campbell.