Alexander Anderson of Auchinreath, v. James Cock, Town Clerk of Banff
Date: 24 Decmber 1709 Case No. No. 61.
The four witnesses must be present at the signing of each of the notaries.
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Janet Anderson, with consent of James Cock portioner of Carnock, granted an assignation of 1590 merks in favours of Alexander Anderson, bearing the parties to have signed upon the 24th August 1704 at Carnock, before four witnesses, insert and designed: Two notaries subscribed for Janet Anderson: Two of the witnesses sign in common form; a third adjects to his subscription, “Witness to both notars' subscriptions;” and the fourth signs with these additional words, “witness to the conotars subscription.” Alexander Anderson pursued James Cock, Town clerk of Banff, as representing the said James Cock, for payment of the sum assigned.
Alleged for the defender: The assignation is null, for that both the notaries do not subscribe before four witnesses; in so far as the adjection to the subscription of one of the witnessess bears, That he was only witness to the co-notar's subscription.
Replied for the pursuer: The docquet of the assignation bearing it to be signed at one place and time, and before four witnesses, this essential part of the writ, cannot be redargued by any superfluous adjection to the witnesses' subscription, but only by improbation; 2do, No faith can be had to this officious adjection to the witnesses' subscription; because, non constat when it was writ, or who writ it, and it bears not to be holograph; consequently it is null by the act of parliament 1681; for it might have been adduced since the signing of the writ, and can be of no greater import, than if such a witness had granted a separate declaration, wanting writer's name, that he had been present only at the subscribing of one of the notaries, which would certainly have been null. June 27, 1704, Lady Kinfauns against Earl of Northesk, the Lords would not sustain this as nullity of a bond granted by Pittarrow and the Lord Lower, that two of the witnesses did adject to their subscription, “At Lower such a day witness to my Lord Lower's subscription;” whereas the docquet of the body of the bond bore it to have been subscribed the day preceding at Pittarrow. 3tio, Writs subscribed by several parties, use to be sustained, though wanting witnesses, from the presumed verity of the writ; which equally holds in this case, where the husband subscribes as consenter, and so must be sustained as a witness.
Duplied for the defender: The adjection to the fourth witness's subscription, is not inconsistent with the docquet of the writ, which bears only in general, before such witnesses (without saying witnesses to both the notaries) but only qualifies that generality. Whereas in the case of the cited decision, the adjection to the subscriptions of the two witnesses, did downright contradict the docquet of the body of the writ; 2do, It is of no import to say, That this adjection is no more probative than a separate declaration; for as it appears to be genuine ex facie scripturæ; so the user of the writ must take it as it stands; unless he offer to prove, That such words were viis et modis added to the witness's subscription, after the delivery of the writ to him; 3tio, If the wife's deed be null, the husband's consent and authorizing her ad integrandam personam (as lawyers phrase it) falls in consequence; as a curator's consent could not support the minor's deed, that is null for want of witnesses; because, by a husband or curator's so interposing, id solum agitur, to hinder the deed to be quarrelled, for want of authority in the disponer, and not to supply other nullities.
The Lords sustained the nullity, and found it not supplied by the husband's subscription; in respect he doth only sign as consenter, and not as a disponer.
