Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER BRUCE, ADVOCATE.

David Coupar, Maltman in Perth,
v.
The Sheriff-Depute of Perth

Date: 21 Jan 1715

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A complaint being given in to the Lords by David Coupar, showing, that he being pursued before the Sheriff of Perth, and having presented a sist upon a bill of advocation, before any interlocutor signed in the cause, yet the Sheriff-depute refused to stop procedure.

Answered for the Sheriff,—1mo, That the interlocutor was pronounced before intimating the sist; and the signing of interlocutors is no new judicial act, since it may be done out of court. 2do, It is known to be the custom of all inferior judges, to decline admitting advocations after sentence, whether signed or not. 3tio, It being the last session day, the Court was up some time before, and the bill presented in the clerk's chamber, when the depute was examining witnesses. 4to, All produced was a sist, before the expiration whereof the interlocutor was not signed ; and though done thereafter, it was warrantable, unless the expede advocation had been intimated before signing the interlocutor.

Replied for the complainer to the first,—That though the pronouncing sentence is the act of the judge, yet it is not act or sentence till it is writ out by the clerk, and signed by the judge, since forma dat esse rei: thus 15th December, 1708, Houston contra Lord Ross, a decreet in absence of the Admiral was found null, because not signed, though by the custom of that court such were not in use to be signed, but only entered into the diet-book ; and, therefore, the act of the judge being intrinsically null, when the advocation was presented, it was unwarrantable to cause write out and sign the interlocutor ; which was the thing that gave being to the sentence, and therefore inferred contempt. To the second, that the custom of court ought not to free the Sheriff from damage and expense, though it may free him from a fine. For every man is liable in reparation, when his fact occasions the damage, whether the same be culpable or not; and that upon the head of natural equity, as in the case of lex aquilia. To the third, that it appears by the instrument produced, that the advocation was intimated the same day the decreet was pronounced, while the Sheriff was sitting in judgment. And whether this was a second diet of the court sitting the same day, or a continuance of the former sederunt in which the decreet was pronounced, does not import; for at presenting, the interlocutor was neither writ out by the clerk, nor signed by the judge. To the fourth, that, 1mo, the contempt was in not admitting the advocation when presented. 2do, The advocation being presented the last day of court, the signing the interlocutor in the vacance was an aggravation of the contempt. 3tio, The decreet bears date the same day whereon the advocation was presented; nor was the deliverance signed before presenting; and the presumption being that it was signed the same day, it follows it was signed after presenting.

The Lords found it unwarrantable in the Sheriff to have refused the sist of advocation, though it was presented only in the afternoon of the last day of his sitting, the Sheriff and his clerk being then officiating; but sustained the answer, that the sist expired before subscribing the sentence, sufficient to free the Sheriff from any farther penalty than the expense of the complaint.

Act. Graham. Alt. Fleming.

Vol. I. page 43.