Scottish Court of Session Decisions

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

Miltoun
v.
Sir Daniel Carmichael

Date: 25 March 1686

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In the improbation at the instance of young Miltoun, against Sir Daniel Carmichael, of a seisin to Sir John Whitfoord, the pursuer's father, the articles of improbation were, That three of the witnesses insert deponed, that they did not remember that ever they were witnesses to such a deed, but could not be positive, it being thirty years ago; and the alleged bailie to the seisin deponed, that he could not say positively that ever he gave such a seisin; 2. The seisin was not booked in the register, but only marked by the depute. And, albeit the dead witnesses might prove presumptively per se, they cannot make faith against a contrary positive probation by four concurring living witnesses; for, if living witnesses were not sustained to convel the presumption arising from such as are dead, it were easy to secure all forgeries, by putting in dead witnesses. The articles of approbation were,—1. Some of the witnesses in the seisin being dead, these are probative of the instrument; 2. Sir John was generally looked upon as a person infeft, and borrowed money, near to the value of his lands, from Sir Daniel Carmichael, a neighbour heritor, to whom he, Sir John, delivered his seisin now quarrelled; 3. When Sir John borrowed money from my Lord, his seisin was got up from Sir Daniel, to be shown to his Lordship, who got a wadset from Sir John, designed therein heritable proprietary; 4. Sir John, as a baron, stood and voted for commissioners to the Parliament, was a commissioner of assessment, and frequented all the meetings of the heritors; 5. In a petition to the Exchequer, signed by him, narrating there were precepts out of the Chancery upon his retour to infeft, and that the sheriff was chargeable with the nonentry by the responde, he craved, that, in respect of his services to and sufferings for the king, he might have the ease of his non-entry, and the sheriff discharged thereof; which desire was granted, after the term subsequent to the precepts, when they were null by the clause præsentibus post proximum terminum non valituris. Now, this petition imports, that he was liable and the sheriff liable, and consequently that he, Sir John, was infeft; 6. His special retour to these lands is produced; 7. The seisin is marked by the register-depute, who acknowledges the marking; and Archibald Hasty, sheriff-clerk, who is dead, was notary thereto, a man of entire reputation. The Lords having considered the articles of improbation and approbation, they sustained the verity of the seisin, and assoilyied from the improbation. Vide No. 603, [Sir Daniel Carmichael against John Whitfoord of Miltoun, December, 1685.]

Page 157, No. 567.