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Scottish Court of Session Decisions >>
Muir v Miller. [1717] Mor 13518 (24 January 1717)
URL: http://www.bailii.org/scot/cases/ScotCS/1717/Mor3113518-049.html Cite as:
[1717] Mor 13518
In a reduction, the defender must produce his own extracts; and the pursuer is not put to the expense of taking out new extracts.
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In a single reduction, at Muir's instance against Millar, the pursuer having craved certification contra non producta, the defender gave in a condescendence of the dates of the registration of the writs called for in the Books of Council and Session: yet the pursuer insisted for certification, and alleged, That the defender ought to produce the extracts; because albeit a condescendence be received in improbations, the reason is, because extracts cannot satisfy the production; and the pursuer, being certified of the dates of the registration, may apply for transmitting the principals for satisfying the production; but, in a simple reduction, extracts being sufficient, it lies upon the defender to produce the same.
It was answered for the defender; That reductions are always libelled in improbations, and generally the pursuer libels falsely only to force production, when nothing is intended but only to insist in the reduction; and, therefore, the pursuers of improbation commonly desire no more but the production of extracts; yet there is never more required of a defender in an improbation, but to condescend on the registration, and the burden of extracting them lies upon the pursuer.
It was replied, That it is unreasonable to put the pursuer to the expense of extracting the writs called for, when they are in the defender's hand, which he can produce without charge or trouble; and it is not the present question, What the Lords might find in an improbation? but the pursuer insists, that the defender may produce the writs called for on oath, and submits to the Lords who shall be at the charge, if the defenders have them not.
“The Lords found that the defender ought to exhibit the writs called for on oath, if they be or were in his hand since the citation; otherwise find, that the charge of extracting them lies on the pursuer.”
Fol. Dic. v. 2. p. 326. Dalrymple, No 166. p. 231.
