Janet Tennant and Lindsay her Husband v. John Tennant
Date: 23 June 1675 Case No. No 566.
One of two witnesses of a discharge was uncertain whether he had subscribed or not. The other witness positively denied. There being another man of the same and designation, the writ was not found false, because it was not shewn the subscription was not that of this other man.
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In an improbation of a discharge granted by James Lindsay, as husband to Janet Tennant, of the said Janet's fifth part of the executry of Christian Tennant, to whom John Tennant was tutor; which discharge was offered to be improved by the witnesses inserted, and by ocular inspection, the witnesses names and their subscriptions being all of one hand-writing; after examination of the witnesses, the Lords having ordained James Lindsay to depone anent the verity of the said discharge; and he having declared, that he did truly subscribe a discharge, but that it was of a particular sum, and not of the whole executry belonged to his wife, and that any general discharge was only granted by him in trust, and received and cancelled before the death of the tutor whom this defender represents; and the witnesses' depositions being considered, whereof one was John Ormiston, who was son-in-law to the pursuer, who declared that he could not say whether the hand-writing was his own or not, but was positive that he did never see James Lindsay subscribe the same; as likewise, another witness named John Smith, who was designed servitor to Stephen Rob, who did depone that he was servant to the said Stephen, but that he did not subscribe nor was it his hand-writing; and for astructing the verity of the discharge, it being alleged, That Ormiston had produced the same in a process at his instance judicially as a ground of pursuit, which was proved by the Bailie's deposition and the clerk; as likewise, it being alleged and proved, That there was another John Smith, who was servant to the said Stephen Rob at that time; the Lords having considered the allegeances and probation hinc inde, did assoilzie from the improbation, being moved with these reasons; that the defender was a minor, and it could not be imagined that he, or any other for him, could forge a discharge for so inconsiderable a sum as the fifth part of an executry which was never liquidate; and that the said John Smith, who was the only denying witness, might not have been the person who subscribed, there having been another proved to be of that name and designation, and no other hand-writing produced to shew that the subscription could not be his, which was found necessary in a former practick, Sir William Stewart of Kirkhill against Kettleston, No 564. p. 12654.; as likewise, that it was proved per membra curiæ, that this was the discharge produced in process after the death of the tutor; and thereupon assoilzied from the pursuit.
Fol. Dic. v. 2. p. 265. Gosford, MS. No 761. p. 761.
