Writs of importance subscribed by only one Notary.
Donaldson v. Simpson and Donaldson
Date: 4 February 1699 Case No. No 13.
A discharge signed by two notaries and only three witnesses, was sustained to the extent of L. 100 Scots.
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In a concluded cause, Donaldson contra Simpson and Donaldson, being a pursuit for two legacies, one of 600 merks, and the other of 1000 merks, and a discharge being produced of both; it was objected against the 600 merks discharge, That it was null, because it was only signed by two notaries and three witnesses, contrary to the 80th act 1579. Answered, That act relates only to heritable rights and other writs of importance, and so will not comprehend this discharge. Replied, All writs, by our law, above L. 100 Scots are reputed of importance, and the said act has ever been extended to other papers of the same kind with such as are therein expressed. The Lords found it null for want of the fourth witness, but sustained it as sufficient to discharge L. 100. Then it was objected against the 1000 merks discharge, That it was likewise null, 1mo, Because there was no other instruction of the verity of the debt, but only the executors giving it up in the confirmed testament; which being done to save the quot and exhaust the inventory, is no acknowledgement of the justness of the debt; 2do, It bears two places, at which the two notaries subscribe for him, viz. the one at Kelso, and the other at Smelholme; whereas they cannot be truly co-notarii, unless they be together, and get the mandate at one time, unico actu et contextu; and they have signed at several places to hold in the charge of the one notary's coming to the place of the other's residence. The Lords thought this last a nullity, but demurred upon the first.
Fol. Dic. v. 1. p. 463. Fountainhall, v. 2. p. 41.
