Scottish Court of Session Decisions

Subject_1 IMPROBATION.
Subject_2 SECT. III.

Certification, its Nature, Stile, and Effects.

Earl of Buchan
v.
Campbell of Shawfield, and other Real Creditors upon the Estate of Strathbrock

Date: 4 March 1756
Case No. No 91.

Certification cannot reach writings that never were in the hands of the defender.

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By the death of Sir William Stewart without issue male, the entailed estate of Strathbrock descended to Katharine Stewart his sister, wife to Henry Lord Cardross. This estate was burdened with many debts good against the entail; and when the creditors made a demand for payment, Lord Cardross, who had no interest but his jus mariti, took assignations in name of George Thomson his trustee; and in his name led an adjudication of the entailed estate, for debts extending to L. 30,000 Scots. This adjudication, being Lord Cardross's proper estate, descendible to his heirs of line, was parcelled out among his proper creditors; and by the conveyances granted to them, “they are obliged upon payment to dispone either to David, Master of Cardross, the rights granted to them, or to renounce and discharge the same in the option of the said David.” And by Thomson the trustee's conveyances in favour of the creditors, it is declared, “That the said David, Master of Cardross, had not only right to the greatest part of the said adjudication and sums therein contained, but that he had right to redeem the conveyances to the creditors, which are granted in corroboration of Lord Cardross's debt.” And it is also declared, “That the hail bonds and other grounds and warrants of the foresaid adjudication at George Thomson's instance, were delivered by him to, and in the custody of Henry Lord Cardross, for the use and behoof of David, Master of Cardross, his son, and for the use and behoof of the creditors to whom Thomson had made partial conveyances of the said adjudication; and that he was not to be troubled or pursued for exhibition of the same.” This adjudication, pursuant to Lord Cardross's direction, was conveyed to the said David, Master of Cardross, afterward Earl of Buchan, and his heirs and assignees; and by the disposition in his favour it is declared, “That the bonds and other grounds and warrants of the adjudication were delivered to Mr Thomas Rigg for behoof of the said David;” and the partial conveyances are excepted from the total conveyance in David's favour.

The said David, afterward Earl of Buchan, having right to Thomson's adjudication as aforesaid, succeeded also to the entailed estate of Strathbrock after his mother's death; and in the 1731 his credit beginning to fail, there was a sequestration of the estate of Strathbrock, which continued till his death in 1745. In the ranking of the creditors which followed that sequestration, the real creditors claiming under Thomson's adjudication were preferred; and some of them obtained warrants for payment of the principal sums and annualrents due to them.

The present Earl of Buchan, having now right to the estate of Strathbrock, brought a process of reduction and improbation, calling for production of all writs and evidents, decreets of adjudication, and other rights and diligences affecting the estate of Strathbrock, in order to be declared null and void. And this step was taken with a view to cut down such parts of Thomson's adjudication as the defenders had right to; because he well knew they could not produce the grounds and warrants of the said adjudication, which had been delivered to his father as aforesaid.

When this process came to be called, the defenders obtained a diligence for recovery of the grounds and warrants of Thomson's adjudication, which they caused execute against the pursuer himself, as well as against others, but without success; the consequence of which was, that certification was granted in common form by the Lord Ordinary.

When this matter was brought to the Inner-house by a petition, the Court was a good deal puzzled what course to steer. The creditors had been long in possession upon the title of Thomson's adjudication. It would be iniquitous to cut them down for not producing writings which were never in their custody. On the other hand, how could the Court refuse to pronounce certification against writings which were legally called for and not produced. The cause was delayed from time to time, through hopes that the writings might be recovered. At last a judgment was given upon the following grounds.

This singular process of reduction and improbation is peculiar to the law of Scotland. It is established upon the following foundation: If a man entertains a suspicion that any right affecting his land or his person is informal or null, he brings a process before the Court of Session, challenging the right upon every nullity he can imagine, and offers to prove the nullities by documents which are or ought to be in the defender's own custody. If the documents be produced, the reduction goes on. If not produced, the pursuer's allegations are held true upon this legal presumption, That the defender declines to produce the documents called for, because he is conscious that they verify the pursuer's allegations. A certification accordingly is granted contra non producta; which, in effect, is a sentence reducing the right challenged upon every ground of law that is set forth in the libel. Such being the nature of the process, it clearly follows, that certification can never be pronounced for not producing of documents that are not presumed to be in the defender's custody; and still less where there is legal evidence that these documents have all along been in the custody of a third party. To apply this to the present case, in the disposition of Thomson's adjudication to the late Earl of Buchan, it is declared, that the grounds and warrants were put into the hands of Mr Thomas Rigg, for behoof of the Earl, who had the chief interest in this adjudication. The Earl, of consequence, was bound to make these grounds and warrants furthcoming to the creditors, who have a partial interest in the adjudication. Perhaps the present Earl does not represent his father. But then the creditors cannot be bound to produce documents which never were delivered to them; nor can there arise any presumption of falsehood from the not production. It is competent, no doubt, to the Earl, as proprietor of Strathbrock, to challenge the rights of the creditors affecting that estate; and if he libel relevantly, he may call for writings in the hands of the defenders to verify his allegations. If the writings called for, per modum probationis, are or ought to be in the defenders hands, they must be produced, otherwise will be held as verifying the pursuer's allegations; but if the pursuer offer to prove his allegations by writings which are not presumed to be in the defenders hands, or which are proved never to have been in their hands, it is incumbent upon him to produce these writings himself. The rule here is applicable, quod actori incumbit probatio; and if he does not produce these writings to verify his allegations, the defenders must be assoilzied.

‘The Lords accordingly reponed the defenders against the certification.’

Sel. Dec. No 104. p. 145.