Writs of importance subscribed by only one Notary.
Alexander Anderson of Auchinreoch v. James Cock
Date: 25 February 1710 Case No. No 14.
Two notaries subscribed a deed for a person who could not write. One of the witnesses added to his subscription “witness to the co-notary's subscription.” The Lords found the writ null except as to L. 100 Scots.
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Alexander Anderson of Auchinreoch gave in a protest for remeid of law and appeal against some interlocutors in a cause betwixt him and one James Cock. The case was, Janet Anderson, sister to the said Alexander, had a faculty in her contract of marriage with Cock, to dispose of 1600 merks in case of no bairns; and accordingly she assigns it to her brother; who insisting for payment, it was objected, her assignation was null, because, though subscribed by two notaries and four witnesses (in regard she could not write herself) one of the four was not witness to both the notaries’ subscriptions; because he expressly adjects these restrictive words to his subscription, “witness to the conotary's subscription;” which clearly imports he only saw one notary subscribe. Answered, The writ bears only one date and place, so it is impossible but he hath seen both the notaries sign; and if the letter S had been added to the word subscription, to put it in the plural number, it would have made the writ good; and it is hard for so small an omission to lose his right; and who knows but these words have been added by another than the witness, it having lain in the process a considerable time, and never quarrelled. The Lords found the assignation null, except as to L. 100 Scots, 2do, Alleged, The husband is consenter to his wife's deed, and therefore his heir can never quarrel it upon any nullity. Answered, The husband's consent was required singly ad integrandam personam mulieris, to capacitate her to dispone; he obliges himself to nothing, he assigns nothing, neither does he convey any thing, but merely consents to her deed; the effect whereof is, that the deed shall be null for the want of his authority; but if it be null upon another head, he is no way obliged to warrant that; for hoc non agebatur inter partes. A minor dispones with his curator's consent; if the curator afterwards succeed as heir to the minor, his consent as curator will not debar him from quarrelling the deed. The Lords also repelled this allegeance. Against which two interlocutors, Auchinreoch protested, and appealed. See Appendix.
Fol. Dic. v. 1. p. 463. Fountainhall, v. 2. p. 572.
