Though the act 1579 give authority to notaries to subscribe for a party in case only he cannot subscribe himself, yet a contract was not found null simply upon that head, that the party could write, unless he would also refuse that he gave authority to the notaries to subscribe for him; in which case the command given to the notaries behoved to be instructed.
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George Littlejohn in the Canongate, as assignee to Oliphant, pursued Hepburn, spouse to Walter Henderson, writer, to hear and see ground of her conjunct fee lands poinded. She excepted that the desire should not be granted, because she was infeft before the pursuer or his authors in conjunct fee, and so no poinding could be granted to her prejudice. It was answered, that she had consented by subscribing the pursuer's author's charter and contract. She answered, that the contract was subscribed long after the sasine, and so was no real right, and that the sasine was not given upon the charter, which was alleged subscribed by her; 2dly, She could subscribe herself, and so a notary's subscription of the charter in her name could not hurt her; 3dly, If she could not have subscribed, it required two notaries, and was only subscribed by one. The Lords ordained her oath to be taken, to supply and try the verity of the notary's subscription at her command.
