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.

Nicolson
v.
Burnet

Date: 7 July 1636
Case No. No 4.

The want of the execution of denunciation of a comprising, found not to annul the comprising after twenty-eight years.

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One Nicolson being charged by———Burnet to enter heir to his umquhile father, to the effect that the said Nicolson might pay the debt owing by his said umquhile father to Burnet, and as use is, comprising being thereafter deduced by the said Burnet of certain lands against him, as lawfully charged, &c.; which comprising being desired to be reduced at the said Nicolson's instance, against the heir of the compriser, upon these three reasons, viz. that the pursuer, the time when he was charged to enter heir to his father, had an elder brother then living, so that the charge could not be executed against him; and consequently, the comprising following thereon, behoved to fall. Against which it was excepted, That the defender offered to prove, in fortification of his charge, that his elder brother was then dead; which allegeance the Lords admitted for sustaining of the comprising, albeit regularly the allegeance of life used to be preferred to the allegeance of death; but here it was admitted to maintain the comprising ut actus valeat. The second reason of reduction was, That the lands comprised were never denounced lawfully to be comprised; and if any such execution to that effect preceded the comprising, which, if it can be produced, the pursuer offered to improve the same, and therefore craved, that the same might be produced, or else that certification might be granted against the same. And the defender alleging, That, after so long a time, he cannot be holden to keep his executions, and the warrants of his comprising, and ought not to be compelled, post tanti temporis intervallum, to produce the same, seeing he produces the comprising, which ought to satisfy the production now, there being 28 years run since the date of his comprising, which was deduced in anno 1608, during the which whole space, it was never quarrelled, when the executions were all extant, which now are lost or neglected, and are not to be found;—and the pursuer answering, That there is no time of prescription, or law, or practique, that may exeem the defender from the necessity of keeping of these warrants; and seeing the compriser came never to seek the benefit thereof all this time, since the deducing thereof, his reason ought the more favourably to be received now, when he is pursued thereon, never being pursued while now; and the defender answering, That the reason wherefore he could not do any diligence upon his comprising, before this time, was, because there was a liferenter of the lands living, who had the right before his comprising, during whose lifetime his comprising could not take effect, and who has died but within this year or thereby;—The Lords found the allegeance relevant against this second reason, and in respect thereof, in this case, found the defender ought not to be compelled to produce these executions, which are called for as warrants of the comprising controverted; and therefore found, that no certification should be granted, for not production of the same, against the said comprising. The third reason of reduction was, That the compriser's self, upon his death-bed, granted the sum, for which the comprising was deduced, to be all paid to him, except L. 40, and desired that his heirs and executors should seek no more from the pursuer but L. 40, which he offered to prove by witnesses present at the time, persons without all suspicion.—The Lords assoilzied from this reason, because it was not found probable by witnesses.

Act. Nicolson younger. Alt. Burnet. Clerk, Gibson. Fol. Dic. v. 1. p. 353. Durie, p. 810.