Certification in an improbation is not delayed by a depending proving the tenor.
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The Lords entered to advise the proving of the tenor of a disposition of the lands of Blaikburn, pursued by Captain Brown, to stop a certification craved by Robert Craw, the lineal heir, in a reduction and improbation he had raised of that disposition. The casus amissions was libelled to be the English riffling his house in 1651 ; the adminicles were a sasine following on the said disposition, and the Notary’s protocal book to fortify it; a disposition of moveables by James Brown, narrating, he had made a disposition of his lands, and all this backed with near 40 years possession. Answered, in the making up a writ, three things must be instructed, 1mo, The existence, that there once was such a paper in rerum natura, whether true or false; 2do, The verity of it; and, 3tio, Its solemnity and formality, for who knows what nullities it might labour with, as the want of writers name and witnesses; it might be burdened with a reversion, or many other clauses and reservations; so there is nothing more dangerous in the preparative, than rashly to sustain such tenors; for Haddington, in his decisions, gives an instance of one who forged a testament, and shewed it to severals, causing them read it, and afterwards destroyed it, and then raised a tenor to be made up by their oaths whom he had employed to read it. And as to the adminicles here produced, by the act of prescription 1617, a sasine with 100 years possession signifies nothing where it wants a warrant; likeas it does not bear the witnesses names when he repeats the precept; and the disposition of moveables is yet more suspect, for it has a marginal note adjected with another hand and different ink, relating to the mails and duties of the lands, which has been added only to serve a turn, and so this is to prove obscurum per obscurius, infirmius ; and though the possession gives a presumption, yet that has not been sustained per se as appears from many decisions; 12th December 1672, Brodie, No.22. p.15795.; 21st June 1672, Mitchel, No. 399. p. 12520.; 15th Jury 1675, Fumarton, No. 37. p. 1755.; where the adminicles were stronger, and yet the tenors were rejected. The Lords demurred in this case, in respect of the hazard of taking away a man’s just right, though lost by fatality, on the one hand; or of making up writs with clauses which never had a being, on the other; therefore there were some named to endeavour a settlement, and to give Robert Craw something.
