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Scottish Court of Session Decisions >>
John Glendinning v John Gordon. [1699] Mor 6744 (5 January 1699)
URL: http://www.bailii.org/scot/cases/ScotCS/1699/Mor1606744-165.html Cite as:
[1699] Mor 6744
Grounds of Reponing against a Decree of Certification.
John Glendinning v. John Gordon
Date: 5 January 1699 Case No. No 165.
A writ was produced within a week after certification was extracted; but it had been granted about an year before, and extract superseded, upon applications from the defender. The Lords refused to repone the defender.
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John Glendinning having acquired right to an apprising of the lands of Kirkconnel, led against Andrew Gordon, pursues a reduction and improbation against John Gordon of Kirkconnel, calling for an apprising of the same lands led against the defender's eldest brother, and whereunto the defender acquired right, when he was third brother; in which process, the bond which was the ground of the apprising not being produced, certification was granted, and stopped, from time to time, upon partial productions, or applications for new hearings, for the space of a year, and, at last, was extracted upon the 17th of February 1698.
The bond, which was the ground of the apprising, being registered in the books of Session, was extracted, and offered with a bill, upon the 23d of the same month of February 1698; and the bill desired, that the defender might be reponed against the certification, and the extract received.
It was answered, That the certification being fairly and legally extracted, a year after it was first pronounced, and after many stops, it was become his evident; and certifications are amongst the most secure and firm foundations of property, which cannot be shaken upon pretence of writs, falling under certification, recovered after the same is extracted.
It was replied, Certifications, after the course of some time, do indeed become firm foundations of property; but the Lords are not only very slow and tender in expeding certifications, but likewise, when they are extracted, the Lords may, and are in use to recall them, upon any application de recenti; and here there intervened only six days betwixt the extract and production of the bond, which was the warrant of the apprising; and the defender is willing to refund the expense and damage, cum omni causa.
It was duplied, Certifications, after taking terms, are decreets in foro, which cannot be reduced, neither can they be recalled, if they be fairly and regularly extracted, without undue precipitation; and there is no distinction in law, whether recently quarrelled or not; because, eo momento that they are extracted, they are the party's evidents, and there is no more latitude or privilege to recall them ex recenti than ex intervallo; for, if they might be recalled at any time, it were not possible to fix a period of time at which they could not be recalled; and the Lords would be altogether arbitrary in that matter; and the rigour of certifications, with the importunity of parties, would often prevail; therefore, the legal extracting of such decreets is the period fixed by law.
“The Lords found, that the certification being fairly and regularly extracted, could not be recalled, though the writs called for were recently offered to be produced.”
