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Baillie and Stewart v Dunbar and Douglas. [1686] Mor 6703 (20 January 1686)
URL: http://www.bailii.org/scot/cases/ScotCS/1686/Mor1606703-128.html Cite as:
[1686] Mor 6703
In what cases Extracts sustained to satisfy production. - When condescendence of the writs called for is sufficient. - Transumpts.
Baillie and Stewart v. Dunbar and Douglas
Date: 20 January 1686 Case No. No 128.
A donatar to an escheat on a horning at the instance of another man, is not bound to produce the principal.
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The case of Mathew Baillie, Littlegill's brother, and Archibald Stewart contra Mr Alexander Dunbar and Samuel Douglas, husband to the Lady Hisleside, was reported by Forret. The case was, if an extraneous donatar to an escheat, on a horning and denunciation, not at his own but another's instance, be obliged for satisfying the production in an improbation of the horning, to produce the said principal horning, or if the extract be sufficient; for if he be creditor and donatar on his own horning, then he is bound to produce it. Alleged, The principal must be produced, because, without production of the principal, it cannot be improven as false; seeing the messenger and witnesses cannot cognosce upon their own hand writs; nor will it appear by an extract if there be any erazure, interlining, or other vitiation in the execution, or if it be stamped; so a door shall be opened to forgery; and the confiscation of our moveables (a great penalty in law,) shall fall on the assertion of the keeper of a register, the extract being no more; that this is contrary to the 94th act of Parliament 1579, and will embolden falshood and villainy; for they may fabricate executions, and put them in the register, and then lose or burn them and the horning, and take a gift of escheat, and extract the horning; and if this be probative and sufficient against improbation, the forgery can never be discovered, nor the lieges secured; and we see the like case observed in Haddington's Decisions, 23d January 1610, between Meldrum and Howieson, voce Process.
On the other side, it was alleged, That if the King's donatar (who was not creditor in the horning) were obliged to produce the principal horning, then by collusion betwixt the debtor and the creditor denouncer, the principal might be put out of the way, and the King's casualty of escheat evacuated and defrauded. The Lords found this donatar not bound to produce the principal, but that the extract satisfied the production. The same was decided before, Thomson contra Ramsay, voce Persona Standi; and there is a parallel case in the King's favours in the 4th act of Parliament 1606. The like was also found Pallat contra Veitch, No 91. p. 2874. So it seems that l. 10. D. De jure fisci, Quod in dubiis contra fiscum respondendum is not law in Scotland. There was another defence proponed against this improbation, viz. that they had not called Lauder, the creditor in the horning, and there could be no process till he was cited. The Lords found he ought to be cited; but allowed him to be called cum processu, See Quod ab initio vitiosum.
Fol. Dic. v. 1. p. 448. Fountainhall, v. 1. p. 394.*** Harcarse reports this case:
In the reduction of a horning against the King's donatar, the extract being produced to satisfy the production;
It was alleged for the pursuer; That extracts cannot satisfy the production in an improbation, because then he could not impugn the messenger's subscription comparatione literarum. And so jealous is our law of the verity of hornings, that the tenor thereof cannot be proved by witnesses.
Answered; The jus quæsitum so the King by the rebellion cannot be taken away by the transaction of parties; and the creditor being always master of the principal horning, the King or his donatar cannot be burdened with the production of it, as was observed by Haddington, Thomson against Ramsay, voce Persona Standi; and found December 1676, betwixt William Veitch and Peter Pallat, No 91. p. 2784.
The Lords found the production satisfied by the extract, in respect the donatar's gift proceeded upon a third person's horning, and not upon his own, whereof he might be master.
Harcarse, (Improbation and Reduction.) No 564. p. 156.
