Acting in one Capacity, whether it infers consent necessary to be given in another Capacity.
Stewart v. Stewart
Date: 25 June 1663 Case No. No 51.
Reduction of a deed on death-bed not sustained where the pursuer was subscribing witness to it.
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Ninian Stewart, as heir to his father Ascog, pursues reduction of a translation of a tack, which tack was assigned to him by his wife, and by him transferred to John Stewart, heir of a former marriage. The reason of reduction was, because the translation was on death-bed, in prejudice of the heir. The defender alleged absolvitor, because the pursuer is witness in the translation, which imports his consent. The pursuer answered, That subscribing as witness could import no more, but that the witness saw the party subscribe, but did not oblige to take inspection of the contents of the writ. 2do, The pursuer when he subscribed was minor. The defender answered, That in this case the subscribing as witness behoved to import consent, because that very subscription itself by the father, being sick, did import a deed done on deathbed; especially it not being a testament but a writ inter vivos; and for the minority, the pursuer was in confinio majoris ætatis, and suffered the defender to possess twenty years, long after his anni utiles were past.
The Lords found the subscription as witness in this case to import consent, and being quarrelled inter annos utiles, they found sufficient to a minor, though in confirmation.
Fol. Dic. v. 1. p. 380. Stair, v. 1. p. 195*** Gilmour reports the same case:
Ninian Stewart of Ascog, as heir to John his father, pursues the reduction of a right made by him to John Stewart of Arnhome, as being done on death-bed. It was alleged by the defender, That he should be assoilzied, because the pursuer is witness to the right in question. It was answered, That he was only witness to the subscription, and not to the deed itself, and was not obliged to know the tenor of it. It was replied, That he being then the apparent heir, and his father sick and on death-bed, as is acknowledged, he is presumed to have known what was in the right, at least considering his father's condition, he ought to have examined the tenor of the writ, and considered whether it was prejudicial to him or not, which if he hath neglected sibi imputet.
The Lords found the apparent heir's witnessing is equivalent to a consent, in regard he is presumed to have known, or ought to have known the nature of the right, and they found a great odds betwixt a son subscribing and a stranger not interested.
The like found July 1666, Haliburton contra Haliburton, No 52, infra.
