Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Sir George M'Kenzie
v.
Whithead of Park

Date: 8 July 1668

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Sir George M'Kenzie, pursuing Whithead of Park for the half of the sum of 5000 merks, assigned to his lady by her father, for which he produced a transumpt under the hand of Wiliiam Downie, then clerk, in anno 1653: Compearance was made for James Bannatine of Newhall, who had married Sir George M'Kenzie's lady's sister, who was substitute to her father in the whole sum, and to whom the said James was sole executor; who alleged, that the transumpt could not make faith; it being without any warrant or process; and therefore the principal ought to be produced.

The Lords sustained the transumpt; the pursuer producing the warrant cum processu, or proving the tenor thereof: but prejudice to Newhall to pursue an improbation, seeing the principal was produced, and kept by their elder brother, Laird of Kilbocho, who was tutor to the whole children, and who was long since dead; who was presumed to have left the same amongst his papers.

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