Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

James Alstoun
v.
Walter Riddel

Date: 18 February 1681

Click here to view a pdf copy of this documet : PDF Copy

James Alstoun pursues Walter Riddel sub-clerk of the bills, for payment of a sum due by Broomhall, which being suspended, he, for a cautioner, did accept of a false bond in name of William Norvel in Culross, who is dead several years before, without any attester; albeit the pursuer required him, by instrument, to take sufficient caution; and being upon the place, as the instrument did certiorate, Walter ought to have known the cautioner, or had an attester; or at least ought to have acquainted the pursuer what cautioner was offered, who would have told him that the cautioner was dead several years before the date of the bond of cautionary.

The defender alleged, That he was not liable, seeing it is known that there was such a responsal person dwelling in Culross, in whose name the bond of cautionary was offered; and he could not know the certainty of his death, or know his hand-writ: and denied the truth of the instrument, which is not probative, unless it were asserted by the witnesses, seeing it hath no warrant in writ.

The Lords having ordained the procurator, the notary, and witnesses to be examined upon the truth of the instrument; one of the witnesses was dead, and the other deponed he remembered not; but the procurator deponed, that the contents of the instruments were true; and likewise the notary, Cairns, who was suspectæ famæ: and there were two declarations produced under his hand, acknowledging two instruments formerly given out by him to be false: Whereupon the question arose, whether the instrument was astructed or improven.

The Lords found the instrument astructed, albeit it had but two witnesses,— the one dead, and the other remembered not; seeing the notary and procurator, though suspected, astructed the same: for, if instruments were improven, when the witnesses depone they remember not, but are not positive that they were not witnesses, or that they were not in that place; most of instruments, even of seasine, resignation, and the like, would be improven; seeing it is impossible for witnesses that are but overly required, to remember for any considerable time, not having subscribed the instrument, that by their knowledge of their subscription they might affirm the same.

Vol. II, Page 862.