Scottish Court of Session Decisions

Subject_1 GROUNDS and WARRANTS.
Subject_2 SECT. I.

Whether necessary to produce Grounds and Warrants after a long interval of time.

Purves
v.
Blackwood

Date: 16 November 1666
Case No. No 5.

Certification refused against letters and executions of an apprising twenty-four years old.

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Adam Purves having pursued reduction and improbation of a comprising, and the grounds and warrants thereof, against Blackwood,

The Lords, in respect the comprising was deduced 24 years before, did refuse to grant certification against the letters and executions, and against one of the bonds being registrate when the principal bonds were given in to the Clerk Register to lie in publica custodia, in respect of the troubles of the time, and the loss and disorder of the register; and that the extract was produced, and the defender was content to abide at the truth thereof. See Improbation.

Reporter, Newbyth. Clerk, Hay. Fol. Dic. v. 1. p. 353. Dirleton, No 50. p. 20. *** Stair reports the same case:

Adam Purves pursues reduction and improbation of two bonds, alleged granted by him to Janet Baxter, and of an apprising led thereon, against certain tenements in Edinburgh belonging to him, and craved certification contra non producta. William Blackwood, to whom by progress the right is now come; produces the apprising, and the extract of one of the bonds whereupon it proceeded, and alleges no certification against the letters and executions of the apprising after so long time; the apprising being led in anno 1621, and no process of reduction raised till after the year 1650;

Which the Lords found relevant.

Likeas, he further alleged, no certification for not production of any of the principal bonds, because they were registrate in the registers of Session, and the principals were lost. The pursuer answered, That there were pregnant points of falsehood, viz. Purves having gone and left the kingdom in anno 1618, and having been a soldier abroad till the year 1630; and these bonds, and the apprising thereon, both in one month; and the bonds granted to a woman who had no such estate, but the servant of a waiter, of an evil fame; and one Blair a witness who was hanged for falsehood.

The Lords refused certification for not production of the principal bonds, but prejudice to the pursuer to insist in his improbation, by these or other evidences, by the direct manner; but they admitted certification against that bond, the extract whereof was not produced; yet conditionally to a time, that the defender might, upon the adminicle of the apprising, insist to prove the tenor.

Stair, v. 1. p. 406. *** This case is also reported by Newbyth:

Adam Purves having granted two bonds to umquhile Janet Baxter in anno 1621, whereupon the said Janet deduced an apprising against the said Adam's house in the Canongate, upon the 29th May 1621; and whereupon she was infeft in August thereafter by the superior; thereafter the said Adam, in anno 1621, did, in corroboration of the said apprising, dispone of new the saids lands and tenements to the said Janet, conform whereunto the said Janet, and others having right from her, were in possession till the year 1657, by the space of 37 years. The said Adam raises a summons of improbation of the saids whole writs; and compearance being made for William Blackwood, in whose person the right of the said apprising and disposition and infeftments are now come by progress, compearing and alleging that no certification ought to be granted against the writs libelled, albeit the same were not produced, viz. the letters of apprising, with the execution thereof, the principal bonds, the extracts being produced; the Lords found, that the defender needed not to produce the letters of apprising, with the executions, the comprising being dated so long time ago; and found, that the defender producing the executions, needed not to produce the principals, in regard the registers are now lost; and where the extracts are not produced, they granted a time to the defender to prove the tenor of the bonds.

Newbyth, MS. p. 84.