Scottish Court of Session Decisions

Subject_1 IMPROBATION.
Subject_2 SECT. IV.

Who must satisfy Production. - What terms allowed for Production. What incumbent on the Defender. - What his Privileges.

Scott
v.
Johnston

Date: 7 February 1612
Case No. No 96a.

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In an action of improbation pursued by Scott of Bonnington and Johnston of Wamphray, the Lords found, that in respect Bonnington, in his own cause of improbation, had produced all such writs as he had, and declared that he had no more, therefore he could never be holden to produce any out of his own hands thereafter; and yet they admitted him to prove the having of the evidents by Wamphray himself; which probation they restrict to writ, or oath of party; and that because it was alleged by Bonnington, that there was a charter accepted by Wamphray, wherein there was a reversion inserted, which was directly contrary to the writs produced, which bore no such reversion. Thereafter the matter being reasoned in præsentia, the exception was found relevant to be proved per testes omni exceptione majores, and that these witnesses should be such as could read and write.

Kerse, MS. fol. 205. *** Haddington reports the same case:

The Laird of Wamphray pursued Simon Scott for improbation of all reversions, contracts, bonds, and securities for making reversions alleged made to him, his father, or good-father, by this Wamphray, his father, good-father, or

* Examine General List of Names.

grand-father; and that in like manner, Scott of Bonnington pursued Wamphray for improbation of all infeftments of the said lands made by Bonnington, or his predecessors to Wamphray or his predecessors; in which processes it was ordained that simul et semel they should hinc inde produce all that they had; conform to which ordinance, Wamphray having produced his infeftments, and his predecessors of the lands, and Scott having produced some writs on inventory, declaring that he had no more, whereupon by minute of process certification was granted for all that was not produced; the matter being thereafter called, Scott of Bonnington alleged, That no certification could be given against him for three reversions of the said lands made to his forbiers, because they were in the defender's own hands, at the least in the hands of his father or good-father, to whom he was heir, one of which reversions was contained in a charter of the lands accepted by Wamphray's forbiers. To this was opponed Scott's former declaration, that he had no other reversions nor were produced, and the minute contained certification granted against all others. The parties having disputed very contentiously upon the certification which was sought, the Lords began to consider that it was hard to prejudge a man of his evidents by a certification, especially no act being extracted; and, upon the other part, considering what great inconvenience should arise, if any man, who, upon suspicion of falsehood, being called for improbation of writs, not being able to produce any further writs, should offer to prove by two witnesses that the evidents called for were in the pursuer's or his predecessor's hands, he should have no other adminicles to make up evidents which never were in rerum natura, but two false witnesses, who deponing confidently upon preparation of well contrived falsehood, could not perhaps be found in any contrariety, but might make their depositions so well to agree, as it should be the most dangerous and remeidless falsehood that ever was devised,; and the said Lords being specially moved with the long silence of Scott and his predecessors, who, these fifty or threescore years bygone, had never pursued for any such reversions, which they would not by appearance have omitted, if they had had right to any such writs; therefore the Lords found the allegeance relevant to be proved in this manner, that such reversions had truly been in Bonnington's predecessors’ hands, as their own proper evidents, and thereafter came in the hands of Wamphray's predecessors, that this should be proven per testes omni exceptione majores who could read and write, and should so perfectly prove all necessary circumstances of the exception, as might give full satisfaction to the Lords in their conscience, that the same was true, otherwise they would assoilzie; and farther, they declared that the defender delaying the pursuer by the manner of probation, that if he succumbed in probation thereof, the Lords would not permit him to produce the reversions, albeit they were in his own hands.

Haddington, MS. No 2391.