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Scottish Court of Session Decisions >>
Helen Mirk v Bruce of Kinnaird. [1692] 4 Brn 19 (9 December 1692)
URL: http://www.bailii.org/scot/cases/ScotCS/1692/Brn040019-0040.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Helen Mirk v. Bruce of Kinnaird
Date: 9 December 1692
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Helen Mirk against Bruce of Kinnaird. He having extracted a decreet assoilyieing him, on his consigning the principal sum, and 200 merks of expenses; and she having raised a reduction of it, and calling for the grounds and warrants of the decreet; and some of the interlocutors being amissing, she urged for getting the extract of her certification.
Kinnaird answered, That his decreet in foro could not be taken away for want of the warrants, which might fall by through the clerk's servant's negligence, or be abstracted by their fraud. The President thought, where decreets were impugned ex intervallo, they should not be declared null for want of the grounds; but if it was questioned de recenti, they were bound to produce them, but the point being of general concern to the whole lieges, they resolved to hear it in their own presence, and, in regard the woman was poor, and not able to employ the best advocates to plead it, the Lords would nominate some of the most eminent for that purpose; for they considered, if the abstracting the minutes and interlocutor would annul decreets, the lieges who had recovered sentences in foro after great expense and trouble, had no security at all.
In this case, Kinnaird offered to prove the existence of these interlocutors, freeing him from the annual-rents, on his consignation, by the oath of my Lord Pitmedden, the reporter, and of the extractor, and others; but the Lords, as formerly, in Heugh Wallace's case against my Lord Forrester, thought it a dangerous preparative, to make up the tenor of interlocutors by any witnesses whatsoever.
