Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Johnston
v.
Irwin

Date: 14 March 1634

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One Johnston, as assignee made by Irwin of Braes, to an obligation of 1400 merks, addebted to him by another Irwin, pursuing for delivery of the same; the maker of the bond, conform to his ticket, granting the receipt thereof from the cedent, and obliging him to redeliver the same; and the said debtor alleging the assignation to be null; because, albeit it was subscribed by two notaries, yet the same was not done unico actu, as is necessary, but only by one notary before two witnesses to his subscription, and by another notary before other two witnesses to his subscription; and so is not agreeable to the Act of Parliament, being a matter of importance: And it being answered, that the Act of Parliament requires not that there shall be four witnesses present to the subscription of each one of the two notaries, and that writs subscribed by two notaries before two witnesses, to each one of their subscriptions, are null; but, negativè, declares writs which are not subscribed by two notaries before four witnesses to be null; and which is done to eschew falsehood:—This reply was not discussed; but the allegeance was repelled, because the cedent concurred with the assignee, and assisted the pursuit; which the Lords found supplied any defect alleged in that assignation.

Vid. 20th March 1633, Craig against Cow.

Page 712.