Grounds of Reponing against a Decree of Certification.
Forbes v. Blair
Date: 14 June 1667 Case No. No 159.
The Lords refused to repone a party against a certification, although it was granted in winter, when the defender, being an aged woman, and attending one of her children who was distracted, could not appear to produce the writ called for, which writ was produced within a few days after the certification was granted. Yet an opportunity was given to the woman, to obtain by other means, what in justice belonged to her.
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Dr Forbes and his spouse, having recovered a decreet against David Edgar, the said David did grant a disposition in favour of his mother, whereof the Doctor and his spouse did intent improbation and reduction; and after long dependence, certification was granted and extracted; but the defender having given in a bill, craved to be reponed, pretending that the certification was granted in winter, when the defender being an aged woman, and attending one of her children being distracted, could not come in the time of a storm; and within five or six days after the certification was granted, she came and produced the disposition.
The Lords, before answer, whether they would repone against the certification, ordained them to dispute upon the reasons of reduction, viz. That the dis position was inter conjunctas personas, without an onerous cause, and that the condescendence was not relevant, viz. That the disponer had granted bond for aliment and entertainment of him and the other children to his mother, and for terce; in respect the said pretences were only patched up to colour the said fraudulent disposition; and that the said disponer, pendente lite and after sentence, could not, in prejudice of the pursuer, give a bond, to be the ground of the said disposition; but if there were any ground of the said pretended debts, the defender should have recovered decreet for the same; and though the debt were without question, the common debtor, contrary to the act of parliament, could not make a voluntary disposition, in prejudice of the pursuer's diligence, to gratify and prefer another creditor. It was answered, That, by the act of parliament, the reason (viz. That the right was granted without an onerous cause), is only probable scripto vel juramento, and that the disponer not being inhibited, the defender might lawfully sibi vigilari, and take a right for a just debt; and by the act of parliament, the diligence that disableth a debtor to give, and a creditor to take a voluntary right, is not a dependence or a decreet, but inhibitions and hornings, which are so public, that the lieges may and ought to take notice of them.
The Lords were tender to repone against the certification, and yet they thought not good to take away the disposition upon the certification, seeing the writ was produced, and not suspected nor questioned to be false; and the defender did excuse and purge her negligence (as said is); and the disposition being in her favours, who was sub potestate mariti, and should be defended by him, having herself in law neither velle nor nolle, his negligence should not undo her; and therefore the Lords having considered also the difficulties in the debate upon the reason, they reduced the disposition in manner after-mentioned, by reserving to the defender to pursue for the said pretended debts; and declared, that if she recovered decreet, (the pursuer always being called, that there be no collusion,) the defender shall come in pari passu with the pursuer, and that the disposition shall stand to that effect only. Both the parties acquiesced in the decision.
