Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Janet Buchanan, Lady Leny, v. The Duke of Montrose
I708.
July20.
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Janet Buchanan, Lady Leny, as apparent heir to the Laird of Buchanan, and also a creditor in £1000 sterling, pursued a reduction and improbation of all rights the Duke of Montrose has upon that estate, and craving certification against the grounds and warrants of his apprisings and adjudications.
It was alleged for the Duke,—These being led more than twenty years ago, he was not obliged to produce the letters and executions of apprising post tanti temporis intermitían; but the decreet of apprising itself was now sufficient to satisfy the production by the constant form and practice of the house, which did not oblige the lieges to keep such small papers after so long a time, and presumed all to have been solemniter acta.
Answered,—It is true this presumption doth liberate the defender from producing them, when they are not extant; but I offer to prove, by the Duke's oath, that he has them; and, in this case, prœsumptio cedit ventati: and this was so found, within these few years, betwixt Beatson of Kilry and Polguild, that, after twenty years, they were bound to depone whether they had them in their hands or not.
Replied,—It is now become a fixed custom, that the grounds and warrants, except it be the instructions of the debt, are not to be produced after twenty years; as was decided, 11th February 1681, Kenway against Crawfurd; after which time omnia prœsumimtur solemniter gesta. And it were against common sense, that he who keeps his writs carefully should be in a worse condition than such who lose them: the careless keeper is free, and he who 'preserves them must exhibit upon oath, and run the risk of all the nullities, informalities, and defects they contain; which opens a door to many pleas, and overturns many peaceable possessions and securities upon niceties of executions, escaping very prudent men's observations.
The Lords observed, that both apprisings and adjudications were here called for, and yet there was a great difference betwixt them: for the grounds and warrants of adjudications, as to the judicial procedure, (abstracting from the titles of the pursuit,) were not taken up, but left in the clerk's hands, and might be sought for there. But, as to apprisings, the letters and executions were given back to the party, yet so as they were verbatim engrossed in the decreet of apprising, and so their nullities might be fished out there. But, that the Lords might be uniform, they ordered that practick of Polguild and Kilry to be produced, that they might see what course the Lords steered there.
In the same process, the Lady craving certification against a disposition made io the Duke, by Major Grant, of these lands, and by the Laird of Buchanan to the said Major; alleged,—You can never quarrel that disposition; because your own bond for £1000 sterling from Major Grant, narrates, that he had granted a disposition to the Duke for the burden of her debt, and which bond she having accepted, made use of, and now founding on it, you can never quarrel what it homologates per expressum; and so Spottiswood, voce Improbation, observes, in Keith of Benholm's case, 24th March 1635. And, to seek to improve and reduce this disposition, is so inconsistent that it destroys your own right, flowing from your immediate author, Major Grant, and narrated in your own bond; for this was both to approbate and reprobate the same writ.
Answered,—I may quarrel any deed, whether granted by myself or to myself, if it be my interest to remove it out of the way; which is the present case.
Some of the Lords thought the regular action for getting thir writs was an exhibition, rather than a reduction and improbation. Others said, This allegeance could not hinder the taking a day to produce whatever might operate in discussing the reasons of reduction; but the point was not determined at this time.
