Acting in one Capacity, whether it infers consent necessary to be given in another Capacity.
Lady Rosehaugh
Date: 25 February 1703 Case No. No 54.
Parties interested in accounts, subscribed as witnesses to the subscription of the accomptant. Found not to infer approbation.
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The Lady Rosehaugh being nominated both tutor and curatrix by Sir George Mackenzie, her husband, to her son, she pursues an exoneration; wherein it was objected, That, by her husband's testament, she was to act by the sight, advice, and approbation of five friends he named, and ita est they had not approved the accounts. Answered, They had done the equivalent, in so far as they had gone through the whole accounts of charge and discharge, and signed witnesses to her subscription; they scrupling a formal consent, lest it might infer a gestion of protutory upon them. Replied, The signing witness can never import a consent, seeing witnesses seldom know the contents of the paper, though it has been otherwise decided in the case of Ascog contra Arnholme, No 51. p. 5674, in a special case of an apparent heir's signing witness to his father's assignation on death-bed. Duplied, To fortify their subscription here, it was offered to be proved, the friends had revised and perused the accounts before they signed as witnesses. The Lords refused to sustain their subscription as witnesses to imply a consent, but allowed them yet to object against any article of the account, and referred to my Lord Tillicoultry to hear them; and in case he found all the articles sufficiently instructed, then to decern in the lady's exoneration.
Fol. Dic. v. 1. p. 380.
Fountainhall, v. 2. p. 182.
