A writ subscribed by notaries, where the notaries' docquet bore that they subscribed for the party, but did not mention whether at his command found null.
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Mr. John Philip pursues his tenants upon a disposition granted by Michael Philip. Compearance is made for Mr. James Cheap, who apprized from Michael Philip's heir, who alleged that the disposition is null, neither being subscribed by the disponer, nor by two notaries for him, albeit it mention the subscription of three notaries, yet two of them subscribed not at the same time with the third; and neither of these two bear, that they did subscribe at command, but that they subscribed only for Michael Philip, because that he could not subscribe himself; and albeit the body of the writ mention such witnesses to the command given to these notaries, yet it is written with another ink, and does not appear to be written at the time of the subscriptions, being the hand-writ of him that wrote the body, which mentions to be written by him at Edinburgh, and the subscription is at Newburgh; and because the notaries' subscription must give faith to the body of the writ, and not the body to it. It was answered, that they offer to prove by witnesses insert, that the command was given: It was answered that the command being the most substantial point of the subscription, could not be proved, or supplied by witnesses, for the subscription of the notaries, because the party could not subscribe, signifies nothing without the command of the party, for whom they subscribe, and warrant or command in most ordinary matters is not at all proveable by witnesses.
The Lords found the disposition null, and that the subscription of these two notaries not bearing, that it was by command, could not be supplied by the witnesses insert, unless it had been the subscription of a co-notary subscribing at the same time with a notary, whose subscription bore command. Here it was debated whether the subscriptions of notaries at divers times were sufficient, or if the subscription of a notary who was not authorized by the English, and did forbear to act at that time, were sufficient; but the former vote made these to be undecided, as not necessary, seeing the writ was annulled by the former vote.
