Acting in one Capacity, whether it infers consent necessary to be given in another Capacity.
Halyburton v. Halyburton
Date: 4 July 1666 Case No. No 52.
Found in conformity with the above.
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Halyburton pursues a reduction of an infeftment granted by his father upon his death-bed to his sisters, who alleged absolvitor, because he had consented to the disposition, in so far as he had subscribed witness thereto; and if need be, offered to prove that he had read the same. It was answered, Non relevat, because the subscribing as witness relates only to the verity of the party's subscription, and nothing to the matter therein contained, so that whether the same was read or not, it can import no probation.
The Lords found the defence relevant, reserving to themselves to consider what the naked subscription, without the reading of the writ, should work, in case the reading thereof were not proved.
Fol. Dic. v. 1. p. 380. Stair, v. 1. p. 388.*** Newbyth reports the same case:
Umquhile James Halyburton writer in Edinburgh, having a son called William, and two daughters, Janet and Sarah, he provides his son to all his moveables and all sums of money resting by him, and makes a disposition thereof in favours and for his two daughters; he dispones to the eldest, Janet, an annualrent to be uplifted out of an tenement of land belonging to him lying under the Castle wall, redeemable for the sum of 3000 merks; and to the other, called Sarah, an annualrent redeemable for the sum of 2500 merks. After the two daughters were thus provided by their father, he dispones his whole moveable estate to his son, thrice as much in value as the two daughters' provisions; the father being dead, his son William Halyburton, pursues a reduction of this disposition of the two annualrents, as being made by his father in lecto ægritudinis, and to his prejudice being his heir. To which it was answered, The pursuer cannot say it was to his prejudice, because it was all the portion-natural they got from their father, and that the father assigned to the pursuer all his moveable estate, which would have belonged to them, and which would have far exceeded the annualrents they got. 2do, Absolvitor, because it is offered to be proved, that the pursuer being present the time of the father's granting the annualrents, he did peruse the same, and being major, sciens et prudens, did subscribe the same as witness and was thereafter silent, and did acquiesce thereto, and so did homologate the dispositions granted by the father to the defenders. The Lords found the allegeance proponed for the defenders relevant, that the pursuer had subscribed as witness to the disposition after he had read and considered the same; and, albeit the defender should succumb in the probation thereof, they reserved to themselves to consider what the pursuer subscribed witness should import.
Newbyth, MS. p. 68.*** This case is also reported by Dirleton:
A son having intented a reduction of a disposition made by his father, for provision of the rest of the children, in lecto ægritudinis,
The Lords found the defence relevant, that the pursuer had consented, in so far as the son had subscribed as witness, and knew and heard the disposition, so that he was not ignorant of the tenor of it. And it was remembered by the Lords when they were voting, that they had found the allegeance relevant, that a son and apparent heir had subscribed as witness to his father's deed in lecto, without that addition, that he heard it read, in the case of Stewart of Ascog, No 51. p. 5674.; it being to be presumed, that the apparent heir being of age, would not be witness to such deeds, unless he enquired and knew what they were.
