Scottish Court of Session Decisions

Subject_1 CITATION.
Subject_2 SECT. XX.

Citation in Reductions and Improbations.

Earl of Marr
v.
Lord Elphinstone

Date: 26 November 1622
Case No. No 79.

The clerk register found to be a necessary party to be summoned, where the King's writs in his keeping are called for to be reduced.

Click here to view a pdf copy of this documet : PDF Copy

The Earl of Marr and Lord Erskine pursued the King's Treasurer, Advocate, and the Lords Elsphinstone and Kildrummie, for production and reduction of a testimonial or decreet pronounced by the Justice General, and Sheriff of Aberdeen, in a Justice Ayre, in anno 1457, annulling the Lord Erskine's title to the Earldom of Marr, and serving the Lord Erskine's brief negative, &c. The defenders having produced the Lord Elsphinstone's infeftments, and having taken a day of their own consent to produce the said testimonial or sentence; of their own consent reserving to the King's Advocate his defences against the certification of the summons; at the day assigned by the act, the Advocate refused to produce, alleging, that no process should be granted, because the Clerk of register was not called, who was a necessary party, as keeper of all the King's writs and evidents. It was answered, 1st, that certification should be given against the decreet and testimonial, because they had taken a day of their own consent to produce it, 2do, The Clerk of register was not keeper of the sentences, except such as were given by the Parliament, Session, or Chequer; but sentences pronounced by the justices, Sheriffs, or other Judges, to which Courts he was not clerk, were not esteemed to be in his keeping, but all the King's Officers had their own charge and trust, as the secretary of warrants passing the signet; the Privy Seal had its warrants and register, the Director of the Chancellary brieves and services, the Justice-Clerk, sentences of justice courts and perambulations, et sic de cæteris, whereof the Clerk of register was not keeper. Farther, that the Treasurer and Advocate were only necessary parties to be called to represent the King in his actions; and that the writ called for being in the Clerk of register's hands, and seen by the Advocate, the Clerk of the register could not of his office refuse to exhibit it, being required by the Advocate. It was answered, That the Clerk of register, having his office as free as the Advocate, could not produce the King's evidents unless he had been summoned, or had a particular warrant of the King. In respect whereof, the Lords found, by two several interlocutors, no process while the Clerk of register was summoned.

In that same cause, the Lords found, that the Clerk of register might extract any evident being in the King's register, whereof he was keeper, which would make as great faith as the principal, except in cases of improbation: As also, that he might give doubles of any evident of the King's, lying in the register, which had no warrant of registration; and that the said double being subscribed by the Clerk of register, after this manner, hæc est vera copia principalis cartæ vel sententiæ litera in registro existen, made as great faith as the principal, except in improbations; and therefore found, that a copy of the sentence or testimonial called for, being produced by the pursuer for satisfying the production was sufficient to that effect, and, in respect thereof, found no necessity to summon the Clerk of register. See Registration.

Fol. Dic. v. 1. p. 139. Haddington, MS. No 2678.