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.
Sir David Dalrymple v. The Earl of Carnwath
Date: 20 December 1711
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The Viscount of Kingston, as proprietor of the barony of Haills, pursues a reduction and improbation against the vassals of that lordship; and, particularly, calls Sir John Dalzell of Glennay, for his lands of Kirkmichael; and, after the terms are run, obtains a certification; for stopping whereof he made a partial production. The process having slept for many years, it is at last wakened by Sir David Dalrymple, last purchaser of these lands; and craving out his certification against the Earl of Carnwath, as representing his grandfather, in respect the writs then produced were taken up again; it was alleged,—No certification; for your title is prescribed, in so far as you had taken no document on it for forty years preceding Kingston's citation; and so, by the Act of King James III. it was lost non utendo, by the negative prescription. Answered,—Not competent hoc loco; but it should have been proponed in initio litis: all objections against the title must be before the taking of terms. Neither is res integra, the production being taken up; and, till these be again in the field, I will not debate my title. You must first put me in statu quo.
2do, Alleged,—Your summons is expired; not being renewed every seven years, according to the Acts of Parliament 1669 and 1685. Answered,—These citations for interruption are only required where a process is raised and not insisted in; but here it was brought the length of a certification; after which it lasts forty years, without necessity of a septennial renovation.
The 3d defence was,—That your author, Stewart, Earl of Bothwell, had no more by his gift of the Hepburns' forfeiture but the lands holding feu, and redeemable; of which kind Carnwath's lands were not. Answered,—This restriction is taken off by a posterior charter in ample and comprehensive form.
4to, alleged,—Your seasine is null quoad my lands in Dumfries-shire; because neither registrate in the general register nor in the particular one where the lands lie, as the Act of Parliament 1617, anent registration of seasines, requires. Answered,—The haill lands being united in the barony of Haills, and a seasine taken at the castle and messuage thereof, lying in East Lothian, being declared to serve for the whole, it was sufficient to register in the books of that shire.
Replied,—We must distinguish betwixt the taking of the seasine and the registrating of it; for, though the seasine, by the union, comprehends all, yet there is no such indulgence for the registration: such fictions of law are not to be extended. And by what rule can a purchaser of lands in Dumfries be obliged to search the registers of East Lothian more than those of Orkney or Shetland, there being no law pointing me more to the one than to the other?
Duplied,—What are you that object the nullity of my seasine, who produce none in your own person? And Sir George Mackenzie, in his Observes on that Act 1617, tells this nullity of not due registration, is only competent to him who produces aright to the same lands; and, though he starts the question, where the seasine of united lands should be registrate, yet he insinuates there is no decision in it; and it isjus tertii to you, who produce nothing.
The Lords were clear, that the three last defences were not competent to stop production; but divided on the first, of prescription,—some thinking it might be proponed in any step of the process: But the plurality found it not receivable, after extracted acts and certification granted, till he put the pursuer in the same state he was in, by reproducing the papers taken up; and then he might be heard to propone prescription or any other defences in causa, at the discussing of the reasons of reduction, especially seeing the act has never hitherto been quarrelled in a reduction.
