Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 REDUCTION

Campbell of Ottar
v.
The Duke of Argyle

Date: 20 December 1765

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In the case of Campbell of Ottar against The Duke of Argyle, the defender, who was called upon to produce all his rights and titles to the lands of Ottar, declined to take a day; produced a charter of the lands, granted to his ancestor, with a connected progress thereto, and infeftment following thereon, confirmed by possession for more than 40 years: and he contended that this progress was sufficient, and did exclude the pursuer. In this case the writings produced to exclude were part of those specially called for in the reduction; and it was contended, that they could not exclude the pursuer: but this, notwithstanding positive prescription having followed upon them, was held, under authority of the Act 1617, sufficient to bar every challenge, forgery excepted. The Court accordingly found, 20th December 1765, “that the titles produced for the defenders, with the possession following thereon, are sufficient to exclude the pursuer from the whole subjects under challenge; and therefore assoilyies the defender from the process, and decern.”

This decree was affirmed in the House of Peers, 10th February 1770.

This point again occurred, 24th January 1766; petitioners Dunlops against an Interlocutor of Lord Kennet, Ordinary. The court were of the same opinion as in Ottar's case, but, without pronouncing an interlocutor, remitted the petition to the Ordinary.

It again occurred, 27th June 1776; David Orme against Patrick Leslie Duguid. The Lords pronounced this interlocutor,—“In respect that the ratification founded on* does not comprehend all the deeds brought under challenge

* The ratification was one of the deeds sought to be reduced.

by the present reduction, find that the defender is bound to satisfy the production as to all the others of said deeds not satisfied; reserving to the defender, at discussing the reasons of reduction, to be heard on his objections to the pursuer's title, and on all his other defences whatever, as accords; and remit to the Ordinary to proceed accordingly.”

N.B.—In a reduction, all defences against a pursuer's title ought to be proponed before taking a day, and argued in that state of the process, otherwise they are held to be past from, or overruled, unless they are expressly reserved. —Reg. 1672, § 25.