Scottish Court of Session Decisions

Subject_1 GROUNDS and WARRANTS.
Subject_2 SECT. IV.

Grounds and Warrants of Apprisings.

E Nithsdale
v.
L Westraw.

Date: 29 February 1628
Case No. No 25.

Found, that certification could not be granted against comprisings, on which sasines were expede; but if no infeftment had been taken, they must be produced.

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In an improbation betwixt the E. Nithsdale and Westraw, the Lords found, That pursuers of such actions may pursue for improbations of retours, whereby the defender in these cases, or any of their predecessors, are served heirs to their predecessors in the lands controverted; for if the retours fall, the lands will be in non-entry, and so the pursuer has sufficient interest to quarrel them, and crave production thereof. Item it was found, that albeit retours be registrated in the chancellary, yet that the defenders, who are called therefor, are holden to produce the same, and if they do not, that certification should be granted against them, and that the pursuer is not holden to produce and extract them. It was also found, That no certification, neither for retours nor services, should be granted, which are of any date anterior to the year 1546, in respect of the burning of the town, and most public places in the country, whereby it may be supposed that public registers were then destroyed. Item it was found, that comprisings, whereupon sasines and infeftments were expede, could not be decerned to make no faith for not production, seeing they remained at the signet for the warrant of the seal, the time of the expeding of the signature for infeftment thereupon, and so the party called in the improbation could not be holden to produce the same; but touching comprisings, whereupon followed no infeftment, the party called was holden to produce the same, because it was to be presumed that they were in his own hands.

Act. Hope, Nicolson, & Stuart. Alt. Aiton. Clerk, Gibson. Fol. Dic. v. 1. p. 354. Durie, p. 352. *** Spottiswood reports the same case:

Exceptions proponed in an improbation of the Earl of Nithsdale's against the Laird of Westraw.

1mo, No certification against retours, because they are to be had in the chancellary, which is a public register. This was repelled, for there will be certification granted against any infeftments if they were not produced, albeit they may be had in the director of the chancellary's register; much more against retours.

2do, No certification against retours nor services before the 1544, (at which time the registers were burnt by the English,) relevant for all retours, and for services likewise, which the defender will make faith are not in his own hands.

3tio, No certification against comprisings, because they are to be found at the signet, where they were wont to be left for its warrant, (till of late that signatures were past upon comprisings,) relevant for comprisings whereupon infeftment has followed, but not for those upon which infeftment has not been taken. In an improbation pursued by the Chancellor against his vassals of Ratray, this being proponed, the Lords would not give answer upon the general, but remitted it till the production came to be satisfied, at which time they would consider what comprisings should be produced, and what not, 6th July 1631.

4to, This action was pursued in James Maxwell's name, who had the lands libelled disponed to him by the King, in whose hands they were resigned ad remanentiam by the Earl of Somerset.—It was alleged, No certification at the pursuer's instance, as having right from the King by the resignation of Somerset, till the procuratory of resignation made by Somerset was shown. This was found relevant; but suffered the pursuer to produce it cum processu.

5to, Because there were called for all writs made to the defenders by the Lords Maxwells, in whose right the pursuer had succeeded through the late Lord Maxwell's, forfeiture.—It was alleged, No certification for such writs made by the Lords Maxwells at this pursuer's instance, unless he show where the Lord Maxwell had right to these lands; for he could be in no better case than my Lord Maxwell himself, in whose right he succeeded; who, if he were pursuing these defenders, behoved to show a right.—Answered, That are might pursue as heir to his predecessor, and needed not show any other right — Duplied, That was in respect he would be obliged in warrandice of his predecessor's deed, to whom he was heir; for which cause it was ever sustained that an heir had good interest to improve any deed done by his predecessor which he would be bound to warrant, albeit he instructed no other interest; but it was not so in a singular successor, who was not bound in warrandice.—Triplied, He needed not instruct that the Lord Maxwell had right, for if the defenders had taken any infeftment of him as having right, they had acknowledged as much. This allegeance was repelled.

6to, He could not seek retours to be improven principaliter, but only in consequentiam, as to hear and see improven sasines and infeftments, with all that had followed thereupon, whether services or retours; because, by the acts of Parliament 1494, cap. 57. and 1617, cap. 13. it is ordained that there shall be no process for reducing of retours after three years.—Replied, That is only for reducing them for error and inordinate process; but as for improbation, as false and feigned, it is competent any time, cum nunquam præscribatur falsum, except it be enacted otherwise by a statutory law.

Spottiswood, (Improbation.) p. 166.