Scottish Court of Session Decisions

Subject_1 GROUNDS and WARRANTS.
Subject_2 SECT. II.

After twenty years, warrants need not be produced.

Sir William Cockburn
v.
The Creditors of Thomas Calderwood

Date: 26 November 1725
Case No. No 18.

Executions of, general and special charges not necessary to be produced twenty years.

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In the competition betwixt these parties, about a subject in Mortonhall's hands; Sir William's interest was an adjudication led by Dr Hay, against a principal debtor; and the debt being shortly thereafter satisfied and paid by Sir William's predecessor as cautioner, the adjudication was conveyed anuo 1720, out of the hæreditas jacens of the Doctor, by a process at Sir William's instance against his representatives. It was objected by his competitors, That the adjudication is null, 1mo, Because it proceeds upon a decreet of constitution, wherein the passive title is a general charge to enter heir, and yet the executions of the general charge not produced. 2do, It proceeds against an apparent heir, as specially charged to enter heir to his predecessor, and yet no special charge or execution produced.

It was answered for Sir William, That general and special charges are of the nature of warrants, which are usually left with the clerks of process; and custom has introduced a prescription of 20 years, in favours of parties, that they are not to be answerable for warrants after that time; and a most equitable prescription it is, that one for ever be not liable for the negligence of others. 2do, Were it even so, that general and special charges are not to be considered as warrants, but as grounds, and presumed to be in the possession of parties themselves; (however far the want of the instruction of any step of diligence might operate against the party user of the diligence, who ought to have all in his possession;) the case of singular successors is more favourable, who have frequently difficulty to recover their author's papers. And here Dr Hay's writs were in so great disorder, that Sir William was even forced to take second extracts of the bond and adjudication; which points at a fair account, why he never came, to be master of these general and special charges. And it was concluded to be extremely hard, if diligences shall be found null, especially in the persons of singular successors, after so long a time, there being not only 20, but almost 40 years elapsed, since the date of the adjudication; and all for the falling by of an instruction of a common step of diligence, which every creditor has it in his power to do without any trouble; and which no creditor is presumed therefore to neglect.

In reply to the first, The following argument was made use of, to show, that general and special charges are not warrants, but grounds. The distinction betwixt grounds and warrants, must either be with relation to the Judge, who pronounces the sentence, or the clerk who makes out the, decreet. With relation to the Judge, all those that are commonly reckoned grounds, bonds, bills, &c. are the warrants of his sentence; so that it can only be with relation to the clerk, that the distinction is made; and these are called warrants, which the clerk ought to keep as vouchers of his extracts; and all that can be necessary for that end, is the summons, to shew, the nature of the process; the deposition of witnesses, for the proof; and the minutes, for the sentence; which without more, must be full authority for clerks to extract any decreet. In this view, general and special charges can no more be reckoned warrants, than hornings, arrestments, inhibitions, or any other extrajudicial step of diligence; or even than bonds or bills, which indeed are all of them Warrants to the Judge; but his sentence, instead of all of them, sufficient warrant to the clerk. And accordingly the custom runs, that seldom (if ever) are general and special charges left with the clerks, but taken up by parties with their other grounds.

Replied to the second, It is enough for the creditors to say, that Sir William Cockburn's progress wants two mid-couples; and that either these mid-couples never were, or at least are liable to objections, sufficient to annul the whole progress. This objection is undoubtedly good against every mortal, who pretends any interest in the progress, singular successor as well as author. It is indeed possible that the general and special charges might have been duly executed and fallen aside by accident; but since it is also possible they never were, or were not legally done, which is the same upon the matter, the creditors ought not to lose an objection, that possibly may be competent to them; and their competitor ought not to have a possibility of being made better by the loss of his own writs.

Duplied, The accidental falling aside of Sir William's papers, ought in reason to give no more benefit to Sir William's competitors, than to himself. What then must be concluded? Just this, the Judges will consider upon whose side the greatest weight of, presumption lies, and determine accordingly, sciz. Whether it is most probable that these executions were legally done, and fallen aside by accident, or that they were never done, or not done legally. And when the dispute is brought to this shape, it will be no difficult matter to point out, upon whose side lies the strongest presumption, if it be certain that not once of a thousand times, are any of these common and usual steps of diligence neglected altogether, or executed with any substantial informalities; when at the same time, the casus amissionis is condescended on, a probable account given, how by the lapse of many more than 20 years, these executions might have fallen aside.

‘The Lords found, that the want of the executions of the general and special charge, after 20 years, is no nullity or ground of reduction.’

Fol. Dic. v. 2. p. 254. Rem. Dec. v. 1. No 63. p. 122.