Scottish Court of Session Decisions

Subject_1 IMPROBATION.
Subject_2 SECT. V.

In what cases Extracts sustained to satisfy production. - When condescendence of the writs called for is sufficient. - Transumpts.

Monro
v.
Gordon

Date: 11 January 1681
Case No. No 126.

In a reduction and improbation, it is sufficient to stop certification of the writs called for, to allege, that they are in publica custodia, and to condescend upon the dates of the registration; but where the defender took terms to produce, and the terms were run, the Lords refused to sustain this condescendence, but they allowed the defender ten days to search the registers, and to produce the clerk register's attestation, that the writs were registered; in which case the Lords would grant warrant to the clerk register to produce the principals

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Sir George Monro having right to an apprising of the Lord Rae's estate, pursues reduction against Gordon of Gordonstoun, and other apprisers, who took terms to produce; and, after the terms run, and certification granted, do now allege no certification against the principal bonds, whereupon the apprising proceeded, because they are registrated in the books of Council and Session, and the dates of registration condescended upon. 2do, No certification against an inhibition by the defender's author, because it is registrated, et in publica custodia; and because that author, nor none to represent him, is called. It was answered, That these allegeances are not now competent; because, by the act of regulation, they could only be sustained when proponed before terms are taken, in which case the pursuer would have been obliged to have searched the registers of session, and if he found the writs registrated at the time designed, he would have called for a warrant to the clerk register to have produced, but that being then omitted, it is not now receivable. Neither is the allegeance of the defender's authors not being called, which, if it had been proponed in initio, the pursuer would have called him; and the defender, upon the citation in the improbation, ought to have raised an incident, and executed the same to the day of compearance in the improbation, but cannot now delay the pursuer, upon calling the defender's author, or to recovering the inhibition; and as to the allegeance of the registration of the inhibition, it is neither competent nor relevant; for the register of inhibitions is not for conservation, but for publication, and does not retain the principal inhibition.

The Lords found, that the defenders not having, before terms were taken to produce, offered the dates of the registrated bonds, that it could not now oblige the pursuer to search the registers, but they allowed ten days to the defender to search and produce the clerk register's attestation, that these writs were in the register; in which case the Lords would give warrant to the clerk register to produce the principals. And the Lords repelled the defence upon the registration of the inhibition, in respect the principal is not kept in that register; and repelled the defence, in not calling the defender's author, in respect of the act of regulation, and state of the process; but superseded extract till the first day of February, and granted horning against any havers thereof medio tempore.

Fol. Dic. v. 1. p. 448. Stair, v. 2. p. 830. *** Fountainhall reports the following additional particulars of the same cause. His Lordship does not observe the above point.

1680. December 24.—In Sir George Monro's improbation against Sir Robert Gordon of Gordonston, of his right on the estate of Lord Rae, it was alleged, Sir George's apprising was prescribed. Replied, He had charged the E. of Sutherland superior long within the 40 years to infeft him. Duplied, This was no sufficient interruption of the prescription of a comprising, being no document, nor intimation to the debtor, but only to a third party. Triplied, Tails qualis insinuatio though null and informal is sufficient against prescription to give significationem contrariæ voluntatis, and to take off acquiescence that the party intends not to pass from his right, or habere pro derelicto; and that any interruption against odious prescription is favourable, though it be not used against the party against whom the apprising is led, but against a third party, and will import a legal and valid interruption. This being reported, “the Lords found the charge against the superior a sufficient interruption, because it was a part of the diligence of the comprising.” There was another point debated, but not decided, viz. Sir George produced an execution upon a summons for mails and duties within the 40 years. Gordonston offered to improve it, as antedated and not executed till after the 40 years. Alleged, This being exceptio falsi et omnium ultima, it must be proponed peremptorie, quoad totam causam. Answered, Gordonston hazarded on it peremptorie the defence of prescription; that he should be for ever secluded from that, but no more. See Prescription.

1681. February 26.—The mutual reductions betwixt Sir George Monro and Sir Ludowick Gordon (24th December 1680,) being reported, “the Lords find Sir George's reason of reduction, viz. that the obligation is not so liquidated, but is satisfiable at any time by delivery of cows and mares, relevant ad hunc effectum to reduce the comprising as to the expiration of the legal; and sustain the same only as a security for the cows contained in the bond, which the Lords liquidate to 2,500 merks; and find the same redeemable by the payment of the said sum within ten years after this date. And find the reason that a part of the cows and mares were delivered before the leading of the apprising, relevant prout de jure to reduce the apprising simpliciter; for then the apprising was led for more than was justly due. And find the reason relevant as to the bond of Scots money, that the said bond is conditional, and not purified before leading of the apprising, and therefore reduce the comprising simpliciter as to that sum; though they offered now to purge the condition thereto annexed, and obtain the said discharge. And repel the reason of reduction founded on the nullity of the bond, as being blank in the day and place, seeing the apprising by its date appears to be led after the year expressed in said bond. But seeing the apprising is restricted on the illiquidity of the cows and mares, therefore sustain the comprising for the sums contained in this bond, in the same manner with the former. And as to the reduction pursued by Gordonston against Sir George Monro, refuse to examine witnesses ex officio anent the conveyance of the apprising, in respect of Manson the depositar's death, and that it hath passed through several hands. And find the reason libelled of trust, and that it was paid with the debtor Lord Rae's own means, and the disposition taken blank, now only probable scripto et juramento. And as to that point, whether the apprising be redeemable from the apparent heir on the 62d act, Parliament 1661, Sir George's daughter being married to the Master of Rae the apparent heir, reserve that point to the conclusion of the cause, it being in apicibus juris.”

As to the first part of this interlocutor, it would be considered ubi conditio adjicitur non obligationi sed tantum solutioni, tunc obligatio non est ita conditionalis, that it stands in need of a previous declarator to purify it. See 13th February 1671, Oxenford*. This interlocutor refusing to examine witnesses ex officio was

* Examine General List of Names.

thought very hard, seeing in the case of the creditors of Fendraught against Morison of Bogny*, and in many other cases, the Lords, for trying fraudulent conveyances, have allowed it, else fraud of apparent heirs should scarce ever be discovered.

1681. July 14.—In Gordonston's reduction against Sir George Monro, (26th February 1681,) a comprising being quarrelled as come in the person of the apparent heir, in so far as the apparent heir his wife's father had bought it in for the behoof of the apparent heir's children, and so on the 62d act, Parliament 1661, it ought to be redeemable from him within ten years of his acquisition, for the sums he gave. Answered, The act of Parliament mentioned only the apparent heir, and so could not be extended to his wife's father; statuta being stricti juris. The Lords inquired if the comprising was expired, and finding it was, “they, before answer, ordained Sir George Monro to depone what sums he gave for this comprising on Rae's estate to his immediate author;” This they did, because there were many presumptions that it had been a comprising long ago satisfied and retired by the common debtor's means, and a blank assignation taken thereto, and Sir George his author's name filled up therein, for the common debtor, Lord Rae, his own behoof. But thereafter, on the 19th July, this cause being heard again, “the Lords found Sir George his acquisition of this comprising, or the transmission of it to the Master of Rae his son-in-law, or his children, fell not under the act 1661, nor was redeemable, because he deponed it was a free donation.” Yet this was one of the onerous causes by which Sir George got his daughter elocate to the Master of Rae, and so it was not a mere donation.

Fountainhall, v. 2. p. 123, 133, & 147.

* Examine General List of Names.