Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

James Nory and Crauford
v.
James Meikle

Date: 2 July 1672

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In an action for proving the tenor of a bond, granted by Thomas Meikle to Sir Joseph Douglas, to which Crauford had right by translation from Nory; wherein there was produced, for adminicles, a decreet obtained before the bailies of Linlithgow:—

It was alleged for the defender, That he having an improbation of the bond depending, and a day assigned to satisfy the production, with certification, this action for proving the tenor could not be advised; seeing frustra, the tenor was to be proven, if the bond should be improven as false and feigned; and all that could be done in the action for proving the tenor, was only to instruct that such a bond was seen; which did noways prove the verity thereof; but, notwithstanding, it might be improven as false and feigned.

It was replied, That both the actions were consisting, and the one did not hinder the other; and therefore the cause ought to be advised, reserving the improbation as accords.

The Lords did repel the allegeance; and declared, that they would advise the action for proving of the tenor, seeing it was intented before the improbation; at least before any term was assigned: and therefore the causa amissionis being proven, and the tenor, by the adminicles and deposition of witnesses, the decreet ought to be received for satisfying the production in the improbation; and yet would not hinder the improbation of the bond, as false and feigned, as effectually as if the principal had been produced.

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