Of facts inferring knowledge of, and consent to the right challenged. Effect of consent where the right is not known. Effect of legal steps passing of course. Effect of minority. Effect of payment.
Gordon v. Menzies
Date: 26 July 1672 Case No. No 26.
The body of a deed bore that a party was cautioner. Consent not inferred by his subscribing as witness. See No 32. p. 5650.
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In a count and reckoning betwixt Mr Arthur Gordon and Menzies, this point was reported by the auditor, viz. that a bond deduced in the account, bearing in the body, Menzies to be cautioner for his mother, was subscribed by him as witness, albeit he was not mentioned as witness inserted, but two other witnesses were inserted, and subscribing; whereupon he alleged, that his subscribing as witness could not oblige him, seeing persons frequently subscribe writs as witnesses, without considering the contents, or whether they be inserted witness, conceiving that their subscribing witness imports no more but that they saw the parties subscribe; especially seeing the creditor accepted the bond wherein this person subscribed only as witness. Whereunto it was answered, That the subscribing as witness did import consent to the matter, and did infer presumptive that the party knew and consented thereto, and that it hath been but by inadvertency of the creditor, in taking the bond subscribed with the adjection of witnesses.
The Lords did not find that the subscribing as witness did oblige, unless it were instructed that the bond was read to this party; and therefore ordained the writer and witnesses to be examined thereanent.
