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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mary Brown v Henderson of Brignies, and his Tutor. [1693] Mor 12535 (1 December 1693)
URL: http://www.bailii.org/scot/cases/ScotCS/1693/Mor2912535-421.html
Cite as: [1693] Mor 12535

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[1693] Mor 12535      

Subject_1 PROOF.
Subject_2 DIVISION III.

Public Instrument, how far Probative.
Subject_3 SECT. IV.

Decrees, Acts of Court, &c.

Mary Brown
v.
Henderson of Brignies, and his Tutor

Date: 1 December 1693
Case No. No 421.

The clerk, of an inferior court's assertion of an alleged consent of a party or his procurator, extraneous to the ordinary steps of process, not probative.


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Mary Brown against Henderson of Brignies, and his tutor; the Lords found, in the general, that a clerk of an inferior court's assertion, that a party or his procurator consented to do such a thing, was not binding nor obligatory on them, unless their consent were otherwise instructed, and that they had subscribed it, and that the Judges subscribing the decreets now with the clerk, by the act 3d, of Parliament 1686, did not alter the case; yet here, in this circumstantiate affair, the Lords found the decreet probative of their consent to a roup of the land the next year, seeing she had passed from her two defences, on this concession, viz. that the minor was not infeft, and the tutor had not made inventory; which she would not otherwise have done, and that they had homologated the decreet; for though in extraneous points, the acts of clerks of Courts are not to make faith, yet in actibus officii et processus credendum est clerico; as if a party or his procurator declare he passes from such a conclusion of his libel, and insists only for the remanent hoc loco, such declarations and restrictions need not be subscribed. Vide 24th July 1661, Puchannan and Osburn, No 411. p. 12528; but there it was a making up a consent ex intervallo on the reminiscence of the Judge and clerk.

Fol. Dic. v. 2. p. 248. Fountainhall, v. 1. p. 574.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


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URL: http://www.bailii.org/scot/cases/ScotCS/1693/Mor2912535-421.html