Subject_1 GROUNDS and WARRANTS. Subject_2 SECT. II.
After twenty years, warrants need not be produced.
Alexander Macbrair of Netherwood v. James Maxwell of Barncleugh
Date: 29 July 1724 Case No. No 17.
The want of a special charge after 20 years, sufficient to cut off accumulations of an adjudication.
General charges need not be produced after twenty years.
Services and confirmations are writs in publica custodia; so there can be no presumption of fraud, in consequence of the certification, on the supposition that they had been fraudulently kept up.
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In the reduction of an apprising dated anno 1665, the following nullities were objected, 1mo, That the decreet of constitution was without proof of the passive titles, any further than by the production of a general charge mentioned in the decreet, but which was not now produced, on the contrary certification was obtained against it. 2do, There are other titles mentioned in the decreet, such as a service and confirmation; but against these likewise certification was obtained. 3tio, The apprising proceeded upon a special charge, but the decreet did not mention that it was produced to the inquest; and certification was also obtained against it.
It was answered to the 1st, That there was no necessity of producing charges to enter heir after 20 years, no more than summonses or other executions, as was found Brown against Home, No 7. p. 5169. To the 2d, That Netherwood had no title to reduce the service or confirmation; and besides, these writs were in publica custodia, which cuts off the presumptive falsehood introduced by the certification, upon the supposition that the writs were fraudulently kept up, and that they would appear to be forged if produced. To the 3d, it was answered, That the decreet of apprising was a special charge, the whole of the apprising being one execution by the messenger, and it narrates a special charge to have been given; and therefore there was no necessity to mention it again in that part which relates to the proceedings of the Court of apprising itself: nor is there any necessity of producing it now after 20 years, more than there is for producing a general charge; these are small pieces of paper which are easily mislaid or lost, and therefore the law dispenses with the production of them after a long period of time.
‘The Lords repelled the objection founded on the want of the general charge, retour and confirmation; but found, that the want of the special charge was a sufficient ground to cut off accumulations; and remitted to the Ordinary to determine how far the apprising ought to subsist as to the penalty.’
Reporter, Lord Polton.Act. Boswel.Alt. Ch. Areskine.Clerk, Dalrymple.
Fol. Dic. v. 1. p. 354, & v. 3. p. 253. Edgar, p. 112.
