Scottish Court of Session Decisions

Subject_1 GROUNDS and WARRANTS.
Subject_2 SECT. I.

Whether necessary to produce Grounds and Warrants after a long interval of time.

Strachan
v.
Creditors of Edzell

Date: 20 June 1706
Case No. No 10.

Certification in a reduction and improbation cannot pass against warrants after 20 years, unless it be proved by the defender's oath, that they are still extant, and kept up by him.

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Strachan, an adjudger of Lindsay of Edzell's estate, for himself, and assignee by other creditors, for near an hundred thousand pounds Scots, pursues a reduction and improbation against the whole other creditors; and the terms being run, and sundry partial productions being made, he craved certification contra non producta, and the principals of such bonds, whereof only extracts were produced. Alleged, This process being against a great multitude of creditors, defenders, and pursued only to force production, in order to a ranking and sale, it would be an intolerable hardship and vast expence to go and take out all the grounds and warrants of their adjudications, and other diligences from the respective clerks, up and down the kingdom per omnes regni angulos, and produce them here; and the extracts were sufficient to carry on the roup; and by the same rules he ought to produce principals of all the adjudications, their grounds and warrants, whereunto he has right, which he has not done, seeing, quod quisque juris in alium statuerit, eodem et ipse uti debet. Answered, He craved nothing but what was common law and practice; and the defenders being more or fewer did not alter the case, being but majus et minus; and he had reason to believe if the principals were produced, sundry vitiations and nullities would appear ex facie scripturæ, which cannot be known by extracts; and he has libelled a reason of falsehood against them all; and if there be marginal notes on the principals unsubscribed, or wanting witnesses, at least, not bearing they were adhibited to the addition of these margins, how can this be discovered by extracts? Nullo modo; and for his own production, when they are as far advanced as he, and have raised an improbation against him, he shall never decline to produce the principals; but in hoc statu processus, he has produced enough of title ad fundandum litem, and to force them. The Lords saw inconveniences on both sides, but considered what had been the constant form observed; that, 1mo, as to old warrants past 20 years, as in letters and executions of apprising, no man was obliged to produce these, unless it was offered to be proved by their oath, that they were not kept up by them, and had them. 2do, They made great distinction betwixt the grounds and warrants of decreets, the grounds being the bonds, contracts, dispositions, assignations, confirmed testaments, retour, and other titles of the pursuit; and these being generally got back by the parties, they ought to be produced; the warrants are the libels, executions, minutes of process, interlocutors, &c. which lie in the clerk's office, as the warrant of the decreet, and such after a certain space of years cannot be called for. 3tio, If they are writs registrate in the books of Session, a condescendence on the dates of their registration is sufficient to burden the pursuer with searching them; but it is otherwise in writs registrate in the inferior courts. Therefore the Lords found certification ought to pass against these if not produced; but in regard of the importance and consequence of the danger, they gave the defenders a diligence to cite the clerks for recovery of these principals; and because they were dispersed through so many judicatories, they assigned the first of November for the first term, that they might have the vacancy to search them out. Some thought it might be for the advantage of the lieges to renew the custom used in the English time to return to the parties their own principal writs, it being presumable they will take more care of them than the clerk's servants, who, for a dollar or two, will give out sometimes principal papers, as happened in Captain Waddel's case*, and sundry others; and in Saline and Hart's case last winter*, a disposition registrate in 1644 being searched for, a testificate was reported from my Lord Register, bearing, non est inventus; by which the lieges are at a vast uncertainty; but this vel eget constitutione imperatoria,

* Examine General List of Names.

or at least an act of sederunt to establish it. See Improbation.

Fol. Dic. v. 1. p. 353. Fountainhall, v. 2. p. 336.