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.
Robert Lentron v. Lieutenant Wood
Date: 6 December 1711
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Mr John Lentron of Kincaple having granted a renunciation of an infeftment of annualrent he had out of the Earls of Southesk and Balcarras their estates, and likewise granted a bond of 4000 merks to Catharine Wood, his spouse; Robert Lentron, his heir, pursues a reduction of these deeds, as done in lecto, against Lieutenant Wood, the said Catharine's representative: who compeared, and took terms to produce the writs called for; but at last suffered certification to pass against them, for not production. Robert Lentron considering this decreet of certification would be of small avail to him, being only in a simple reduction, (for they would be reponed any time after this, by satisfying the production,) and this might be delayed to a time that his witnesses tor proving deathbed might be dead, and so his mean of probation totally perish; therefore he gives in a bill to the Lords, representing, That, for him to extract his decreet of certification would be to little purpose; and that he had ground to believe that they keeped up the papers, with that very prospect and view, that, his old witnesses being dead, then they might safely produce them: therefore craved the Lords would examine his witnesses, to lie in retentis to meet their process when they insisted in a reduction of his certification, that he might then repeat his probation of the deeds being done on deathbed.
The Lords considered that this pursuer had neglected a very clear remedy law gave him, if he had adjected a conclusion of improbation to his reduction; for then he would have got a certification, against which, the defenders would not have been so easily reponed; and that a pursuer in a simple reduction could regularly get no more but the certification of his summons; which is only to annul and reduce them, aye and while they be produced: Yet, the case being favourable, they ordained the bill to be answered by the defender; who, in excuse for not satisfying the production, did affirm, That, going to Flanders, he left the papers with Mr Carstairs, Principal of the College, who being now at London, he could have no access thereto till his return; and did not contradict much the examining the witnesses medio tempore, but opposed a commission, and craved they might come to Edinburgh and depone.
The Lords were straitened in two things:—1mo, How witnesses could distinctly depone upon writs not produced, nor their date yet known. 2do, How far they could grant a commission, seeing Wood's consent to their examination was expressly clogged and qualified with their coming here. As to the first,—The Lords thought the difficulty might be removed by adjusting the special interrogatories, when the deeds were done, when he died, and when he contracted the sickness, and how long before; and, if he came abroad, or kept his house, and, if he came forth, whether supported or no. And as to the second,—They considered the testificates produced, bearing, they were so old, infirm, and valetudinary, that they declared on soul and conscience they were not able to come to Edinburgh; and so directed a commission to any whom Wood should name, and, failing thereof, to the commissary or magistrates of St Andrew's, where they dwell, to be reported against the tenth of January next.
The admitting a probation hoc ordine was thought a great relaxation, and dispensed with our ancient strict forms; but it was supported and maintained by material justice and equity, the great law of the world.
