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John Weir having granted a wadset of the lands of Cumberhead, John Weir, his son, did redeem the same, and took on a new wadset, and the wadsetter possessed, and by progress came to Kennedy of Auchtifardel, who took a new right from John Weir, the oye, as heir served to John Weir, his goodsire, and Hamilton, younger, of Raploch, purchased a right to the reversion by progress from John Weir, younger. Acuhtifardel upon his right pursues reduction and improbation against Raploch, upon this reason, that any right he had was a non habente potestatem, John Weir the son never being infeft, and insisting for certification contra non producta, Raploch produceth the first John Weir's infeftment, and the transumpt of the sasine of John Weir, the son, his author, out of the notary's prothecal, and thereupon alleged, that there could be no certification, because he had produced sufficiently to exclude the pursuer's right, and to elide his reason, instructing that John Weir, the son, his author, was infeft, in so far as albeit he did not produce the warrant of the sasine, being a precept of clare constat, yet he offered him to prove, that John Weir, the son, by himself, or the wadsetter deriving right from him, had possessed the lands in question peaceably by the space of forty years before intenting of the cause, and so was secured by the general act of prescription, bearing, “That whosoever possesseth by sasines, one or more standing together by the space of forty years without interruption hath sufficient right, without production of the warrants of the sasine.” The pursuer answered, 1 mo, That albeit in reductions a clear and full production exclusive of the pursuer may exclude certification, yet where there must be a probation of forty years possession, the same ought not to be received against the production, but reserved to be made use of against the reason of reduction; 2do, This process being both a reduction and improbation, a transumpt is not sufficient, but the principal sasine must be produced; 3tio, The oye's retour bears, “John Weir, the goodsire, to have died seven years after the date of this sasine,” and, in fortification thereof, the truth is offered to be proved, so that the sasine is false. It was replied, That seeing the defender produced a sufficient right exclusive of the pursuer, he cannot admit certification, but may use his right either against the certification or the reason, as he pleases; neither is there any moment in producing a principal sasine in an improbation, more than an extract, seeing all depends upon the subscription of the notary only, and his prothecal is more authentic than his extract, which is offered to be produced in fortification of the transumpt; and as to the alleged falsehood in fortification of the sasine, it is offered to be proved, that John Weir, the goodsire, died before the date of the sasine.
The Lords found, That the defender might stop the certification upon his production, providing he declare that his defence shall be peremptory, so that if he succumb, he can allege no further; and in relation to the truth or falsehood of the sasine, the Lords would prefer neither party to the sole probation, and to make choice of their own witnesses, but admitted to either party to adduce witnesses for probation of the death of the goodsire.
