Title to Exclude. - When Proponable. - What Title Sufficient. - What the Effect.
Hay v. Gordon
Date: 11 December 1610 Case No. No 136.
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In an action of reduction pursued by William Hay of Urie against Mr John Gordon of Cramond to hear and see him restored against the decreet of improbation, whereby a tack set by umquhile Mr Archibald Keith, parson of Cramond, to umquhile John Hay of Urie, father to the said William, was decerned to make no faith for not production, because it was given for not compearance; and if he had compeared, he would have alleged that the certification could not be granted, in respect the said Mr John had ratified and approved the said tack himself;——the Lords found the reason of reduction relevant, except the defender would condescend upon some mean of improbation taken from him since his decreet; and thereafter it was alleged, that one of the witnesses inserted in the ratification was deceased; which the Lords found relevant, notwithstanding of the said reason and answer made thereto, that the defender could allege nothing taken from him concerning the improbation of the said tack, which was only called for in prima instantia, and not the ratification.
Kerse, MS. fol. 204.*** Haddington reports the same case.
1610. December 8.—Mr John Gordon, parson of Cramond, having obtained a decreet of improbation against the Laird of Urie, decerning all his tacks of the teinds of that parochin to make no faith for not production, the Laird of Urie pursued for reduction of that decreet of improbation, alleging, if he had compeared, he would have alleged, that the pursuer could not have improven that tack, because he had made express ratification thereof; which ratification being granted to Urie's father, was lately come to this Urie's hands. It was excepted against this reduction, That the reason was not relevant, because improbation being devised to impugn and eschew falsehood, the certification once granted, could never be rescinded, but in some cases allenarly, such as for not citation, or false citation of the defender to the action, improbation, fraud, or violence of the pursuer of the improbation, his having of the writs called for in his own hands, the obtaining of the decreet during submission betwixt the parties, or the defender being absent reipub. or such particular causes. But upon a common allegeance in facto, such as was contained in this reason, the certification granted in an improbation could never be reduced, otherwise nullus erit litium et falsitatum finis. It was answered, that Mr John Gordon could never be in bona fide to impugn or improve that writ which he had expressly ratified. In respect whereof, the Lords found the reasons of reduction relevant, especially because it was alleged that certification granted in improbations had been retreated betwixt Diliston, tutor of Belchester, and William Home of Balita, and betwixt Esselmont and ——.* Thereafter, Mr John Gordon alleged, That no respect should be had to this alleged ratification, because the same was evidently false ex inspectione, albeit the users thereof had keeped it up while all the witnesses inserted and writer of the body were dead; which decease of the writer and witnesses inserted being offered to be proved by the defender, the Lords retreated their former interlocutor, and found the exception relevant against the reason of the summons of reduction.
