Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
John Montgomery and Robert Cunningham v. Thomas Rig
Date: 15 June 1698
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Philiphaugh reported Mr John Montgomery, writer, and Robert Cunningham, under-clerk, against Mr Thomas Rig, advocate, for exhibition of some papers, contained in his father's receipt of the same.
Alleged, 1mo.—Mr Thomas Rig, my father, was pursued in his own lifetime for these papers; and, the libel being referred to his oath, he deponed negative. 2do. This receipt, being dated in 1670, it falls under the Act of Parliament 1669, anent the prescription of holograph writs, if not pursued within twenty years after the date; and this is twenty-eight years ago. 3tio. The writs in the receipt have been restored, though it has been neglected and forgot to be sought up; because, a year after the receipt, there is a certification, in the process wherein they were produced, extracted, in which all these writs now craved are mentioned as in the clerk's hand, and inserted in the decreet as produced; which demonstrates they have been restored, though the receipt be unretired; especially seeing the receipt bears also the process, and yet it is now in the clerk's hands, and acknowledged to have been returned: so all has been restored together.
Answered, to the first, The exception, quodjuratum est, does not meet here; for he only depones, in the terms of an exhibition, that he had them not since the citation, nor put them away fraudfully before; and his receipt being found out since, the oath and it noways interfere; nor can it absolve him, being now pursued super diverso medio: To the second, The vicennial prescription of holograph writs relates only to bonds, missives, or subscribed count-books, and cannot be extended to receipts of writs no more than it was found to comprehend bills of exchange in a late case of Lesly of Boquhayne: To the third, Mr Rig was not only agent in that cause, but had also an interest, and, by the suppressing thir papers, possesses the lands of Balap, whereas they were clearly preferable to him: and the mentioning them in the certification produced does neither presume nor infer their redelivery; because the extractors, having a full inventory of them and a receipt, they hold them as if they were in their hands, because they can command them back, upon the receipt, when they please; and that they have copied the writs from the inventory appears by the scroll produced.
The Lords found, The determining the third defence would put a final period to the whole; so waved the first and second: and as to the third, Considered there were inconveniencies on both sides; for writs are frequently given back by advocates and agents, and their receipts forgot to be retired; and it were a great hardship, after many years' silence, to make them liable to produce the papers, or make up the value. On the other hand, what security can the lieges have for the documents and evidents of their properties, when they are borrowed up by the contrary party's agent, upon his receipt, if that shall not be found probative, but eluded and taken away by presumptions; which is of dangerous and threatening consequence to the people. Yet the plurality of the Lords found, The mentioning and inserting the writs in the certification posterior to the receipt, and the evidence that the process itself was given back, presumed the redelivery of the whole after so long a time; and assoilyied the defender; especially considering his father had, upon oath, denied the having.
