Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Mr Thomas Allan
v.
Mr Hugh Blair

1684. February.

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A bond of 2000 merks being reduced and improven upon this ground, That one of the witnesses insert deponed, that he subscribed it in a room where the principal was present, (without seeing him subscribe, or hearing him acknowledge that he had subscribed the bond,) upon the other witness's assertion that the principal had subscribed; and the other witness, who was a notary, deponed, that the one half of the subscription was the principal's and the other half his own: the creditor in the bond raised a process for damages against the witnesses. Alleged for the defenders, That such an action is a novelty; and witnesses, before the late Act of Parliament, did usually subscribe witness, though they did not see the principal subscribe. Answered for the pursuers, That if such witnesses were not made liable in damages, people's security would be in great danger; for, seeing parties cannot always be present when he, their debtor, subscribes, the creditor rests upon the faith of the witnesses, as to the debtor's subscribing; and they ought not, by their subscribing, to induce the creditor to believe that the bond was true and valid, unless they had seen the debtor subscribe, or that he had acknowledged so much to them when they subscribed; and the late Act of Parliament has considered persons signing witness to another's subscription, without seeing the other subscribe, as a fault so great, and of so dangerous consequence, that it hath made it species falsi. The Lords, nemine contradicente, found the witnesses liable, conjunctly and severally, to the pursuer's damage, effeiring to the principal sum and annual-rent which he would have had by the bond if rightly witnessed.—February 1684. Which decision was thereafter adhered to by a new interlocutor. The like will follow, if notaries subscribing deny the party's warrant.—Castlehill's Pratt, tit. Improbation and Reduction, No. 92.

Page 151, No. 545.