Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Thomas Smith v. William Brown, alias Crichton
Date: 13 January 1702
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Thomas Smith pursues William Brown, alias Crichton, of Crawfurdstone upon the passive titles, as representing his father, for payment of 800 merks, contained in a bond granted by him to Margaret Dempster, to whom Smith is confirmed.
Alleged,—Absolvitor from 200 merks of it; because there is a discharge written on the back of the bond, acknowledging that sum paid; and though it be not signed by the creditrix, yet it bears to have been, because she could not write; and it is subscribed by three witnesses.
Answered,—It is neither subscribed by herself, nor by notaries for her, and yet it bears, in the body of it, that it is subscribed by her; and therefore it must be presumed to have been written either without her warrant, since it was produced in process, or else to have been done spe numerando; pecuniœ.
Replied,—Memorials, though unsubscribed, are probative, especially writs in count-books, or notes on the backs or foots of bonds, though not written with the parties' own hand, nor subscribed by them; as Stair observes, Institut, book 4. tit. 42.
The Lords thought this case singular, and were inclining to sustain the discharge on the back of this bond to assoilyie from the 200 merks, in regard it was of a very old date, more than thirty years ago, and never quarrelled all that time: But it being suggested that the creditrix in the bond died shortly after the date of the said discharge, therefore they remitted to the Ordinary to try when she died, and if it was ever questioned in her lifetime.
