In what cases Extracts sustained to satisfy production. - When condescendence of the writs called for is sufficient. - Transumpts.
Thomas Lawrie v. Mary Austin
Date: 20 June 1688 Case No. No 129.
Transumpts sufficient to stop certification.
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The pursuer of an improbation craving certification against the writs called for, notwithstanding of a transumpt of them produced,
It was alleged for the defender; That transumpts proceeding upon summons and citation of parties, and not by instrument, are sufficient to satisfy the production in improbations; for many of the securities of this kingdom are but transumpts, the principal writs being lodged with the party having the greatest interest. And here parties are cited to hear the bonds transumed, because the principals were to be sent to Virginia, to pursue the debtors there; and being accordingly sent, as appears from the attorney's letters, they cannot be had, now that he is dead.
Answered for the pursuer; That transumpts upon compearance of the parties, may indeed have effect of the principal writs; but here there was not only no compearance, (which makes the transumpt no better than an extract) but the debtor was out of the kingdom; and this specialty must be noticed to prevent falsehood, which the sustaining of transumpts to satisfy the production in improbations, would encourage. Again, the stile of decreets of transumpt bear, that they are to have the effect of principals, except in the case of improbation.
Replied; The urged inconveniency is as strong against tenors as transumpts; and without question this transumpt would be sufficient for proving the tenor; and the exception of improbation in decreets of transumpt is but exuberant stile.
The Lords sustained the transumpt to stop certification. It was alleged, but not instructed, that there was a judgment recovered upon the bonds at Virginia.
Fol. Dic. v. 1. p. 450. Harcarse, (Improbation and Reduction.) No 580. p. 161.*** Sir P. Home reports the same case:
In the action of reduction and improbation at the instance of Mary Austin, relict of the deceased Francis Herries of Lambholm against Thomas Lawrie merchant in Edinburgh, the Lords sustained a decreet of transumpt of a bond proceeding upon citation against the debtor, to satisfy the production, albeit the citation was only given at the market-cross of Edinburgh, pier and shore of Leith, the debtor having his residence out of the country.
