Scottish Court of Session Decisions

Subject_1 COMPETENT.
Subject_2 SECT. XIX.

Turpis Causa; - Proof of the Tenor, - how Proponabe.

Mein
v.
Dunse

Date: 12 June 1701
Case No. No 80.

In an improbation of the grounds and warrants of an inhibition in re antiqua, a proving of the tenor was received incidenter in the same process.

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The Lord Crocerig reported Mr Andrew Mein of Eastmoriston contra Mr Thomas Dunse of Graveldykes. Bell of Raccleugh, John Dunse, and Wilkieson of Eastmoriston, grant bond to John Sheill for L. 1200 in 1652; and Dunse having paid the debt in 1653, he took assignation thereto, and pursued the heirs of Wilkieson in 1662, and obtained a decreet against them, whereon he served inhibition, and adjudged, and pursued for mails and duties. Mein acquires the lands of Eastmoriston from Wilkieson, and being pursued in a reduction ex capite inhibitionis served prior to his right, he raises a reduction and improbation of the grounds and warrants of the inhibition; wherein Dunse, for satisfying the production, gives in the extract of the bond, bearing to be registrate in November 1652, and also an extract of the assignation. Mein insisting for certification against the principals, it was alleged, That in re tam antiqua no certification could be granted, seeing the bond was registrate 49 years ago, and much diligence had followed thereupon, and was never quarrelled during all that time; and for the casus omissionis, it might very probably fall by and miscarry in that time; and they had raised a proving of the tenor on the forementioned articles and adminicles. And in a circumstantiate case like this, an extract was sustained to stop a certification, 2d January 1675, observed both by Stair and Dirleton, Thoirs against Forbes of Tolquhoun, voce Improbation. Answered, Improbations were the great security of the people, and extracts of personal bonds can never be sustained; for where they are not extant, law presumes they have been paid, retired and cancelled, which is all that uses to be done in such cases; as Stair, in his Institut. shews, part 4. anent proving of tenors, and Dirleton's dubia juris, voce Tenors;—and no regard to the raising of the tenor, for it was not done till the certification was craved; in which case, the Lords use not to regard them so as to stop certification, as was found in the late process Brown against Craw, voce Tenor. And for the decision, there was a homologation of the debt in that case which influenced the Lords, and it also stood suspended, so it noway meets: But there is a practique which makes for the pursuer, No 37. p. 1755. Fumerton contra Lutefoot, where an extract was refused, though the debt had attained possession.——The Lords thought it hard to refuse, his proving of the tenor hac loco, though he had been long in raising it; and, on the other hand, it was unreasonable to delay the pursuer of the improbation; therefore they declared they would receive the tenor incidenter in this same process, and hear them summarily on the relevancy of the adminicles, without farther delay. Some proposed to grant certification, and leave them to prosecute their tenor, as accords; others to supersede extracting of the certification till November next, that medio tempore they may insist in making up of the tenor; but the Lords took the middle course betwixt these two. There was one circumstance which rendered this probation of the tenor the more suspect, that at the time when this bond was registrate in November 1652, the English Judges gave the party back the principal writ together with the extract, and it was not kept at the register, as is done now; and so the party is more answerable for its miscarrying when it was in his own custody, than he can be reasonably supposed to be in the other case; though in both he is bound to produce the principal, when called for by improbation.

Fol. Dic. v. 1. p. 176. Fountainhall, v. 2. p. 113.