A witness, who had subscribed a bond, without seeing the granter subscribe, by which the bond was rendered null, found liable in damages.
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In a cause, Mr Hugh Blair, and Mr Thomas Allan, ministers, against Peddie, a bond having been improved, at least found null, because on of the two witnesses therein subscribing, though he confessed his subscription, yet acknowledged he saw not the party subscribe the same, but that he heard the notary led his hand, he being paralytic; and an action of damage and interest being raised at the creditor's instance against this witness, because by his subscription, and not seeing the principal party subscribe, he had lost his bond, and yet confessed the subscription as witness to be his;—the Lords found the witness liable for the sum, both principal and annualrents, though he declared that the notary, in presence of the debtor and creditor, asserted to him, that, before he came in, the debtor had signed that bond, and they were silent, which was assent and inducement enough to him to sign witness.—This was thought a new decision, to make the witnesses liable; but there were some specialties concurred here to move the Lords, which will not readily meet in other cases. The 5th act Parliament 1681, makes somewhat for this decision, for it declares witnesses accessory to forgery who see not the party subscribe. See Writ.
Fol. Dic. v. 2. p. 341. Fountainhall, v. 1. p. 269.*** P. Falconer reports this case:
Allan having pursued Blair, minister at ——, as he who had subscribed witness to a bond granted by —— to the said Allan; and there being improbation of the said bond, raised at the instance of the heir of the granter, Blair being examined, and having deponed, That albeit he was a subscribing witness in the bond, yet he did not see the granter subscribe the same; upon whose deposition, the bond being declared null, and to make no faith, the said Allan intented action against Blair, for damage and interest, as he who had subscribed himself witness to the bond, and yet depones, that he was not witness; whereas, if he had not subscribed witness, the said Allan would have caused the granter subscribe a legal bond before witnesses;—it was alleged for Blair the defender, That there was no law for making him liable for damage, seeing it was frequent and ordinary to subscribe witness, albeit they did not see the party subscribe: And if this action were sustained, it would preclude from all improbation, seeing the witnesses subscribing behoved either to bide by, or be liable for damage and interest. It was replied for the pursuer, That the subscribing witness to a deed, that he did not see signed by the party, was species falsi, and that such witnesses might cheat and circumvene the most provident men, who could not but rest satisfied with the legality of their writs, when they saw them signed by famous witnesses, whose hand writing they knew, and yet these witnesses might evacuate the deed, by deponing, they did not see the party subscribe. The Lords sustained the action of damage against Blair, the subscribing witness, by whose deposition the bond was declared to make no faith.
