Scottish Court of Session Decisions

Subject_1 REDUCTION.

Mr Thomas Learmont Advocate
v.
Lord Arniston, and other Creditors of Sir Robert Preston of that Ilk

Date: 23 December 1698
Case No. No 45.

In a reduction of an ex acted decree of ranking, found, that the pursuer must extract the whole decree, the creditors refusing to take a day to produce it.

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I reported Mr Thomas Learmont advocate, against the Lord Arniston, and other Creditors of Sir Robert Preston of that ilk. There being a decreet ranking these creditors extracted, Mr Thomas complains, that some are preferred to him, who ought, in law, to have been postponed, and raises a reduction of that decreet, and craves they may take a day to produce. It was contended for Arniston and the rest, That they were not obliged, because all parties having interest were not called, viz. sundry of the creditors they condescended on; 2do, Quoad the decreet of ranking in foro, they were not obliged to take a day to produce it; because, being in publica custodia, they giving him its date, the pursuer was bound to extract it himself; 3tio, They needed not produce the grounds and warrants; for if the decreet stood valid, then he had no access to quarrel its grounds; and if the decreet should be opened, then they were content to produce also the ground of their debts. Answered for Mr Learmont pursuer, to the 1st, He needs call no creditors, but those whose preference he quarrels and contraverts, seeing he yields quoad the rest; to the 2d, The decreet was extracted on the common expense, and so is all their evidents; but however he is willing to extract such a particle of it as concerns his preference allenarly, conform to the 17th section of the regulations 1695; and to put him to the vast expense of extracting the whole, were a great severity; to the 3d, They must produce the grounds, else he will insist on that reason, that the decreet wanteth warrants. Replied, If the order of the ranking be once inverted, then the whole creditors must be cited; and quoad the 2d, The regulations do not concern this case of satisfying productions in reductions and improhations, but only where parties extract for their security, or to obtain payment; and the decreet is a syllogism where the premisses cannot be omitted, and if any thing be left out, it is like the pulling out an arrow from a bundle, which looses the whole; to the 3d, The decreet is a medius obex and barrier, till which be removed you cannot quarrel the grounds of the debts. The Lords found the other creditors must be also cited, but allowed him a diligence to call them cum processu; and found he behoved to extract the whole decreet, and that the regulations did not concern this case, and that the defenders behoved to take a day for producing not only the grounds and warrants of the decreet such as the summons, executions, acts, &c. but also the grounds and instructions of their several debts.

Fol. Dic. v. 2. p. 326. Fountainhall, v. 2. p. 28.