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In the action of reduction and improbation pursued at the instance of James Clark against the Laird of Balgounie, of a contract passed betwixt William Carnegie and his children, it was alleged, that the contract was null, as being subscribed by two notaries, who do not acknowledge that the party could write: And it being answered for Balgounie, that he opponed the subscription of the notaries, bearing the instability of the subscriber's hand, and that by reason of his sickness, he could not write; the Lords refused to sustain the subscriptions of the contract, unless Balgounie would offer to prove, in fortification of the notaries' subscriptions, that the party the time of subscribing was sick, and not able to subscribe, and would adstruct the subscription.
P. Falconer, No. 38. p. 21.*** Harcarse reports this case:
A party who was in use to write having subscribed an assignation by notaries, who in the notorial attestation did assert, that the cedent was so indisposed that he could not write; and this assignation being quarrelled as false, in a competition of creditors after the cedent's death;
The Lords were unwilling to determine the relevancy of the reason against the assignation; but “before answer, ordained the assignee to adduce what probation he could, to prove, that the cedent was so sick as he could not subscribe his name.” Here some of the rights assigned were not testable; and the cedent did not die of that sickness, but subscribed thereafter several other writs.
