Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

The College of Aberdeen
v.
Robert Gardin

Date: 22 March 1627

Click here to view a pdf copy of this documet : PDF Copy

In a reduction, at the instance of the College of Aberdeen against Mr Robert Gardin, a tack being produced for satisfying the production, and inspection thereof had by the pursuer's procurators; the same being accepted, and the defender desiring that he might have it up again, and that the pursuer might take his advantage of the not production of the same, by taking decreet reducing it for not production; and the pursuer answering, that it ought not to be permitted that the tack should be taken up again, after it was produced in process, seeing it was evident, and to be seen to the Lords by ocular inspection, that the same was vitiated and erased, and ought not to have respect nor any faith in judgment; neither should the Lords suffer it to be taken out of the process, being so evidently appearing in the vitiation and alteration thereof;—the Lords nevertheless found, that the said defender might take up the said tack, and use it, or not use it, at his pleasure, seeing it was not called for to be improven; and the pursuer might yet easily mend himself of the law, by intenting a process of improbation, wherein the defender will either be forced to produce and use it, or else it will be decerned to make no faith.

Act, Hope. Alt. Lawtie. Gibson, Clerk.

Thereafter this action being called, upon the morrow, the defender offered to improve the tack, which was found likewise could not be received, seeing the tack was not used; but because of the manifest vitiation of the tack seen to the Lords, albeit it was holden as not produced in the process, yet they ordained the same to remain in process in the clerk's hands, while the pursuer should intent action of improbation of the same. Which they ordained to be done with all diligence.

Page 294.