Scottish Court of Session Decisions

Subject_1 IMPROBATION.
Subject_2 SECT. VII.

Certification refused where the Pursuer, his Predecessors, or Authors have acknowledged the Writs called for.

Marquis of Annandale
v.
Lord Hope

Date: 23 July 1735
Case No. No 156.

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Certification was granted against a procuratory of resignation at the instance of the granter's heir, though the granter had acknowledged and homologated the same in after deeds; because this only proves the existence of the procuratory, but not the contents; and there might have been limitations or other clauses in favour of the granter and his heirs, which they were entitled to see; and the only method known in our law to force production is a certification of being held as false and forged, if not produced. It was pleaded for the defender, That a decree of certification is founded upon a presumption of falshood arising from their refusing to produce, and that in this case the presumption was sufficiently taken off by the acts of homologation. It was pleaded for the pursuer, That certification is not built upon any presumption of forgery, the contrary of which is frequently acknowledged in the pursuer's own libel, being inconsistent with several other reasons of reduction commonly libelled; that our law appoints writs to be produced to every one who can show he has an interest in the production; and it appoints the production to be under the penalty of certification of being held as false or feigned; this is not decerning them false or feigned, but only that they shall be of no faith in judgment, more than if they were false or feigned.—— See Appendix.

Fol. Dic. v. 1. p. 452.