If the pursuer of a reduction does not wish for certification contra non producta, he may obtain avisandum with the titles produced, without the necessity of extracting an act.
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Mary Dick having made up titles, by a service to her ancestor George Campbell of Crunan, brought an action of reduction against John Farquharson, Esq; of Baldovie, who was in possession of this estates, which had been carried off by diligence.
Objections were first made to the pursuer's title, which were repelled.
The defounder then made a production of titles, which he argued were a sufficient to exclude the pursuer. This plea also was repelled.
The cause being in this state, the Lord Ordinary, (18th January 1804), assigned ten days for satisfying the production.
When this period elapsed, and no further production of titles was offered, the pursuer moved to have great avisandum made. This was opposed by the defender, who insisted, that it was necessary, according to the forms of Court, to extract an act, and call it before the Lord Ordinary on the acts, who alone could make avisandum with the titles, as already produced; and grant certification quoad ultra.
The pursuer, on the other hand, was satisfied with the production already made, and required no decree of certification contra non producta.
The Lord Ordinary, (2d February 1805), “declines to make great avisandum at the pursuer's desire, with the writings produced by the defender, as a title to exclude; and in respect a day was taken and assigned to the defender to satisfy the production, finds the pursuer must, at her own expence, extract an act thereupon, and follow out the same in the ordinary manner.”
The pursuer reclaimed to the Court. The cause was remitted back to the Lord Ordinary, to recall his interlocutor, and to make avisandum with the production already made.
The rule appears to be this: If the defender appears and makes the production required, avisandum is immediately made, without any further procedure.
If the production is not made, when the term for doing so has expired, it is necessary to extract an act, and call it before the Lord Ordinary of the acts, before the pursuer can obtain circumduction against the defender for not producing, and decree of certification contra non producta. These important steps have the effect of reducing the deeds under challenge. But if this is not insisted for, there is no need for taking these steps; Stair, B. 4. Tit. 20, § 20.
Lord Ordinary, Bannatyne.For Petitioner, Baird.Agent, J. Cauvin, W. S.Clerk, Walker.
Fac. Coll. No. 208. p. 465.
