Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Broun of Finmouth v. Dunlop of that ilk and William Hamilton of Wishaw
Date: 26 December 1699
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Dunlop of that ilk, and William Hamilton of Wishaw, having a right to a comprising on Broun of Finmouth's estate, he raises a reduction and improbation thereof; which being called, and they declining to take a term, contending the pursuer had no title sufficient to force them to produce, there is a certification granted, and, by inadvertency of the defenders, extracted: Against which Dunlop and Wishaw reclaim by bill, and crave to be reponed on production; and that it was extracted under communing, and after the agent had promised to forbear it for some time. It was answered,—The apprising was most unjust against Finmouth, who was only cautioner for Sir John Broun of Fordel in this bond, and the principal's estate had paid the debt; yet Dunlop, his grandchild, had suppressed the documents, and taken a right to this apprising, which he was bound to have purged, and relieved him; and, therefore, though certifications be odious in their own nature, especially when they pass before the taking of terms, yet here it is only to obviate an unwarrantable advantage they were taking of a poor cautioner.
Some were for the standing of the certification, and referring them to a reduction; but, seeing it was de recenti quarrelled, the Lords allowed the Ordinary to take trial, by examining the agent, clerk, and his extractor, anent the way and manner of its being taken out, and if any subreption was used therein. Some argued that an agent's promise did not bind the party; but, in actibus processus, they must stand to what their agents do.
