Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

John Irving of Skails
v.
William Graham of Mosknow

Date: 22 December 1705

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John Irving, late of Skails, pursues a reduction, improbation, and declarator, against Mr William Graham of Mosknow, of all rights of apprising and disposition he has on the said lands of Skails.

Alleged,—You have no title to pursue this action, being only apparent heir, who may indeed pursue for exhibition ad deliberandum, but not reductions of this nature; for, esto I were assoilyied from your instance, yet it would not be res judicata, nor an absolvitor against others who might afterwards intent the like pursuit, being res inter alios quoad them.

Answered,—He passed from the conclusion craving reduction, which can be only sought by one having right; yet he, as apparent heir, might very well insist in the improbation, and offer to prove that the bonds on which the appris-ings were led against his predecessors were false, or that the dispositions alleged denuding them were likewise forged; for, if he were pursued on the passive titles, for paying the sums contained in his father's or grandfather's bonds, he might very well, as apparent heir, reply on their falsehood, and offer to improve the same. And though he were not allowed to carry on the process of improbation for want of a title, yet her Majesty's advocate might insist to try the falsehood, ad vindictam publicam.

The Lords thought it might be a very dangerous preparative, if apparent heirs, (where they and their predecessors had been out of possession for a long time,) were allowed to open the charter-chest of the present heritor and possessor, under the pretence of falsehood; seeing that pretence might give a handle to apparent heirs to disturb peaceable possessors, where their predecessors have been clearly denuded, either by legal diligences or by voluntary conveyances; especially seeing they may reach their design by a more legal method, in granting a bond for a sum of money, and causing their trustee adjudge thereon, and he may pursue the reduction and improbation: neither will this be a passive title, unless he possess by virtue of that adjudication, when he has taken a right to it. On the other hand, it may be hard against apparent heirs, to debar them from proponing falsehood against such deeds, otherwise their ancestors' inheritance may be evicted from them by false and patched-up grounds. And as to what is said of the Queen's advocate insisting alone, that he cannot do, unless the writs were produced and in the field; else he cannot crave certification contra nonproducta; otherwise he might disquiet all the heritors of Scotland, and open their charter-chests.

The Lords, generally, thought an apparent heir could not pursue such an improbation where they had been long out of possession; but, in regard the point was new, they resolved to hear it first in their own presence, ere they made a rule. Dury indeed observes, that once the Lords sustained an apparent heir to pursue a count and reckoning, for extinguishing a debt of his father's by intromission, as being his father's trustee, 16th March 1637, Home; but Stair, lib. 3, tit. 4, observes this was not followed, as being unreasonable.

There was another question started among the Lords, Where one offers to improve a bond as false, by the witnesses inserted, what if, after a long time, they should depone that they do not remember whether they were witnesses adhibited or not, or whether that be their real subscription or not? Many thought that a witness's saying non memini would neither annul nor improve a writ, unless they positively depone that they were never witnesses to such a man's subscription; but this point fell not to be decided at this time. See Stair, lib. 2, tit. 2, where he gives an instance of this case; as also Balmanno's decisions, voce Improbation.

Vol. II. Page 302.