Scottish Court of Session Decisions

Subject_1 PROCESS.
Subject_2 SECT. VI.

Defences.

Jamison
v.
Hay

Date: 23 July 1674
Case No. No 140.

A decree of certification in fora not reducible upon improbation of the execution.

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Doctor Hay having apprised the lands of Artrochie from Patrick Con for L. 1000, which his father paid as cautioner for Con, he thereupon raised improbation and reduction against George Stuart, who before had apprised the same lands for payment of a bond of L. 500, and a bond of 100 merles; and against Marjory Jamison, who now had right by progress to that apprising; who having compeared, took terms to produce, and at last obtained decreet of certification against the two bonds foresaid, and thereupon did reduce George Stuart's apprising, as being without warrant, and all that followed thereupon. The said Marjory Jamison hath now raised improbation and reduction of the Doctor's decreet, and insists, in the first place, for improbation of the executions of the citation alleged, given against her, to have compeared in that decreet, to the effect that the whole decreet might fall in consequence. The defender alleged, Absolvitor; because the said Marjory did compear in the Doctor's decreet, and took terms to produce, and so suscepit judicium, without making any allegeance against the verity of the executions; and, therefore, she cannot, in the second instance, quarrel the decreet, either upon the nullity or improbation of the executions; for, albeit when decreets ate in absence, the improbations of the executions may reduce the same; or, if parties compearing object against the verity of the executions, the same will be sustained by defence, if proponed peremptorie, sub periculo causæ; or otherwise, if it be proponed but dilatorie ad excludendam sententiam, if the pursuer do not admit thereof, the same will be repelled, but will be reserved by way of action of improbation; in which case, the pursuer must be careful of the preservation of the executions; but, if no objection be made by parties compearing, and decreet in foro follow, the defender is presumed to acknowledge the executions, and the obtainer of the decreet is sure forever as to any question thereanent; and if this were not a secure ground in law, all decreets in foro, which are the chief securities of the people might be drawn in question any time within 40 years after, though the rights had passed per mille manus, to the great insecurity and disquiet of the whole lieges, which our custom hath never allowed; for, albeit this, be a general ground against all decreets, yet never any decreet in foro was reduced thereupon, which shows, the common acquiescence therein.—It was answered for the pursuer, That it is an unquestionable foundation, that all sentences are bottomed upon the citations of parties, and must fall therewith; and albeit they may object against the verity of the executions by exception, yet they are not obliged to propone improbation by exception; but whatever is competent by exception, is much more competent by action; and though in the case of improbation of executions after a long time, the Lords have refused to take them away by certification upon not production, they being in publica custodia, and small papers are easily lost; yet where they are produced, there is no ground to refuse to improve them as forged, and that the party drawn thereby in judgement, who, it may be, had no ground to make out the falsehood at that time, may, in the second instance, recenter insist in the improbation of the executions, that the decreet may fall, especially where the executions are at the party's dwelling-house, which cannot be truly known whether given or not, till the witnesses be spoken with. 2do, Whatever might be alleged against the simple annulling of a decreet, upon the quarrelling of the executions, yet where that is only used to repone a party against the rigour of a certification, when the writs then called for are now actually produced, it is most just and necessary that this pursuer be reponed.

The Lords found, that this pursuer having compeared in the first instance, and not having objected against the executions, but having taken terms to produce, and having gotten the full terms, that the decreet could not be questioned, in the second instance, upon improbation of the executions, nor the pursuer reponed against the certification, albeit the writs were now produced; for many times decreets proceed against parties not cited, but compearing for their interests, qui suscipiunt judicium; and here the rigour of a certification was maintained against the rigour of an expired apprising upon small sums, no way adequate to the worth of the land.

Fol. Dic. v. 2. p. 187. Stair, v 2. p. 279.