Scottish Court of Session Decisions

Subject_1 IMPROBATION.
Subject_2 SECT. VIII.

Grounds of Reponing against a Decree of Certification.

Rory Mackenzie
v.
Thomas Boyd

Date: 24 December 1695
Case No. No 164.

Notwithstanding of certification in an improbation, found competent to prove by the debtor's oath, that he had truely granted the bond in dispute.

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Mersington reported Mr Rory Mackenzie of Dalvennan, Advocate, against Thomas Boyd of Pinkhill, for payment of a debt due to his sister, as a part of her portion. His defence was, That he had raised a reduction and improbation against her and sundry others, and obtained a certification. Answered, This being only a presumptive falsehood, arising from not production of the bond then, I now sufficiently elide the same, by offering to prove by your oath, that you truly granted that bond, and so cannot obtrude falsehood against it. Replied, Certifications being the great security of the nation, they ought not to be loosed on any pretence whatsoever. The Lords, remembering this case had been much debated between Edmondston of Duntreath, No 163. p. 6743. where the certification was laid open, they sustained the answer, if he refused to depone on the truth of the bond; for præsumptio et fictio cedere debent veritati. And some have questioned, whether you are secure by the 40 years prescription, whether I may not elide it by referring the verity of the debt, and that it is yet resting owing to your oath, though the bond will not be probative against you; yet that defence of prescription is introduced in odium negligentiæ, et ne lites fiant immortales.

Fol. Dic. v. 1. p. 454. Fountainhall, v. 1. p. 691.