In what cases Extracts sustained to satisfy production. - When condescendence of the writs called for is sufficient. - Transumpts.
Sir Robert Home v. Sir Patrick Home
Date: 7 July 1702 Case No. No 130.
In an improbation of a decree of the Court of Session, the defender must produce the warrants, and it is not sufficient to say they are in public custody.
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Sir Robert Home of Renton, pursuing a reduction and improbation against Sir Patrick Home, Advocate, and Home of Kames, of a decreet they had obtained against his father; and the decreet itself being produced, but certification craved against the grounds and warrants of it, the question arose, Who ought to be burdened with the production of these? It was contended, The pursuer ought to search for them, and either produce them, or else produce a testificate from the clerks that they were not to be found among the records. On the other hand, it was alleged, That the defender being obliged to support his own decreet, he was more concerned to search for them than the pursuer, for his decreet would fall if they were amissing, and the pursuer would not then be anxious to recover them, but rather have out his certification against them; and therefore it was the defender's interest rather to take a diligence for seeking the warrants of his own decreet. And accordingly the Lords, in this case, burdened the defender with production of them, and granted him a diligence for recovery of the same. See Stair, Instit. lib. 4. tit 20. § 21. where he mentions the production, but does not tell by whom they should be produced, save that of writs registrate in the books of inferior courts, he thinks the defender ought to be burdened with the producing them. But that case differs from this in hand, of the grounds and warrants of a decreet of session; and it seems more equitable that he be at the expense of extracting the diligence, and the trouble of searching, rather than the pursuer.
Fol. Dic. v. 1. p. 448. Fountainhall, v. 2. p. 153.
