In what cases Extracts sustained to satisfy production. - When condescendence of the writs called for is sufficient. - Transumpts.
Dunmuir v. Lutfoot
Date: 30 June 1675 Case No. No 123.
Click here to view a pdf copy of this documet : PDF Copy
The Lords in an improbation found, (as they had done formerly in diverse cases), that an extract out of the books of an inferior court does not satisfy the production; the question being of a writ registrate in the books of the Canongate.
Reporter, Newbyth.
Fol Dic v. 1. p. 449. Dirleton, No 285. p. 138.*** Gosford reports the same case:
In an improbation of a disposition, made by Thomas Dunmuir to his wife, of a tenement of land in the Canongate, certification being craved for not production of the principal disposition, it was alleged, That not only they produced an extract under the clerk's hands of the court of the Canongate, but likewise the register itself, bearing, that the principal was given up to the party to be kept by him, who gave in the same, so that there could be no appearance of any forgery of the said disposition, albeit the principal had miscarried, the same being registered in the year 1645, and the tenement possessed by the party ever since. It was answered, That certification ought to be granted notwithstanding, because no extract out of any inferior court could satisfy the production, and the clerk ought to have kept the same for his warrant; so that unless it were proved, that the principal papers were taken away during the troubles, an extract could never be sustained to satisfy an improbation; especially in this case, where the register did bear the same to be given up to the party.——The Lords did grant certification, specially seeing the giving up to the party was written upon the margin by another hand than what the register itself was written with, bearing the registration.
Gosford, MS. No 766. p. 476.
*** See Stair's report of this case, No 37. p. 1755.
