[1782] Mor 5179
Subject_1 GROUNDS and WARRANTS.
Subject_2 SECT. I. Whether necessary to produce Grounds and Warrants after a long interval of time.
Date: Timothy Lane, and Others, Creditors of the York-buildings Company,
v.
Walter Campbell of Shawfield
17 January 1782
Case No.No 14.
Disconformity in warrants of adjudications appearing on production after twenty years from their dates, not challengeable.
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In the process of ranking of the Creditors of the York-buildings Company, it was
Objected to the interest of Mr Campbell, founded on several decreets of adjudication, that the summonses were not conformable to the bills which were their warrants; as appeared upon production of these warrants themselves.
Answered for Mr Campbell; The decrees in question were extracted above 50 years ago. But, after 20 years, it is not necessary to produce the warrants of any decree; Cutler of Oroland*, Maxwell and Riddel contra Maxwell, No 11. p. 5174; Irvine of Drum contra Earl of Aberdeen, No 20. p. 5187. Nor though they should happen to be extant, can any argument be founded
* Examine General List of Names.
upon them; Trustees of Murray of Stanhope against Earl of March, 1772. See Appendix. Replied; It has indeed been generally held, that, after the lapse of 20 years, parties are not bound to produce the warrants of decreets, as in the cases already cited. But however reasonable or expedient it may be to secure parties, after such a length of time, from suffering loss by the mere want of warrants, it will not follow, that, from the lapse of a greater or of any number of years, objections should be barred which are founded on intrinsic nullities or informalities appearing from actual production of the warrants themselves. Quod initio vitiosum est, tractu temporis convalescere non potest.
It was farther objected to one of the above mentioned adjudications, which had been deduced by a person called Somerville; that though the sum of L. 50:9s. Sterling was originally libelled for in name of damages, and contained in the decreet which was first extracted; yet that the new extract now produced bears, without any warrant whatever, a decerniture for L. 84.
Observed on the Bench; The warrants of decreets are commonly left in the custody of inferior officers, some of whom might possibly be tempted by parties to falsify those warrants, were this artifice to have effect at such a distance of time as would render its detection difficult or impossible. For that reason, although the grounds of decreets of adjudication, if called for within the years of prescription, must be produced; yet the law does not require exhibition of their warrants after 20 years. From so long an acquiescence of the parties interested to challenge them, omnia præsumuntur rite et solenniter acta; though, if an adjudger should himself produce the warrants, by thus acknowledging their authenticity, he must answer for any nullities or informalities which they may labour under.
The objection relative to the penalty was considered as affording good ground for modifying that claim to a very small amount.
The Lords adhered to the Lord Ordinary's interlocutor, ‘repelling the objections; with this variation, that they modified the sum contained in John Somerville's adjudication and constitution for damages and expenses to L. 5 Sterling; and in so far restricted the accumulated sum contained in the said adjudication.’
A reclaiming petition for Timothy Lane against this judgment was refused without answers.
Lord Ordinary, Monboddo. For Objectors, Rae, Elphinston. For Shawfield, Ilay Campbell. Clerk, Colquhoun.
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