Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. collected by JAMES BURNETT, LORD MONBODDO.

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Date: 29 November 1755

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In this case the Lords sustained the proof of the tenor of the executions of an inhibition, without any other adminicle than the record of the executions, without any witnesses that had ever seen the executions, or any casus amissionis proved, other than that the house where the record was kept was burnt ten years after the letters were recorded, and it was said that the executions had been left at the record, and had been destroyed when the house was burnt, with a great many other papers. What moved the Lords to sustain this proof, although the inhibition was as old as the year 1725, was that there was an execution of arrestment produced, regular and formal, proceeding upon the same letters of inhibition, executed by the same messenger, and upon the same day and in the same place. Dissent. Preside et Kaimes, who thought it was dangerous to admit such proof in re tam antiqua, without any other adminicle than the record, and without any casus amissionis being proved.

The President said, that to admit the record to be proof, by itself, of any writing, was in effect repealing the Act of Parliament, that extracts shall not bear faith in improbations; and gives an opportunity to parties, if there be any flaws in their executions, which might be detected by improbation, to put them in the fire, and then prove the tenor of them : And as to the casus amissionis, though there was no occasion that it should be so special as in the case of a bond, yet he thought it was necessary to give some probable account how it came to be amissing.

Lord Kaimes said, that there was more hazard of admitting such a proof with regard to an inhibition than with respect to any other writing, because prescription was longer in running as to inhibitions than other deeds.