Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN NISBET OF DIRLETON.

Cheap
v.
Philp

Date: 14 June 1667

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Mr Cheap pursued a reduction of a disposition made by ———— Philp, in favours of Mr John Philp, upon these reasons, That it was subscribed by two notaries, and their subscriptions did not bear de mandato; and because one of the notaries was known to be of so great age, that he had not been for a long time employed as a notary, and that he had only subscribed his name; the rest of the solemn words used by notaries, when they subscribe in subsidium, being written by the other notary. Therefore another notary had been also used besides the two notaries. And that no respect ought to be given to his subscription, by reason it was ex intervallo, and not uno contextu. 2. That the disposition was in lecto.

The Lords, when the case was reported, debated upon the first reason, and, in special, upon these points: 1. Whether, in subscriptions in subsidium by notaries, it be essential it should be expressed that they subscribed ex mandato; and, if that solemnity may be supplied, by offering to prove that the notaries were rogati.

It was urged, That minutes and abbreviations of seasines might be extended and transumed, though none of the ordinary solemnities be expressed; and therefore such defects and omissions may be supplied.

It was answered, That, in abbreviations, omnia præsumuntur solenniter acta; but, when an instrument is complete, or any other writ, if it want the ordinary solemnities, they cannot be supplied: et solennitas non præsumitur; and, being only probable by the writ itself, it cannot be made up by witnesses.

2. It was debated, Whether a father, or grand-father could be notary in a writ or right in favours of the son, or grand-child.

The Lords did demur upon these points; and thought fit, that before answer as to these, the reason founded on lecto should be discussed.

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