Glass of Bogany v. The Children of Steuart of Ascog
Date: 29 June 1715 Case No. No 373.
An instrument of requisition not sustained as probative, uinless adminculated.
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The Laird of Ardinbo being debtor by bond to Bogany, he assigns the bond to Ascog, the last of December 1677. Ascog grants back-bond, acknowledgeing the assignment, but that, notwithstanding thereof, Bogany might pursue the intromitters with Ardinbo's moveables, and, particularly, the donatar to his escheat; and, upon getting payment of his proportion of the moveables, might discharge as much of the sums assigned as might compence the same; which should be understood to be no contravention of the warrandice in the assignation; and, in respect the bond was delivered up, Ascog obliges himself to make the same forthcoming to Bogany upon demand, for the ends foresaid; and failing thereof, to hold count for the same: Bogany thereafter being in hopes to get payment, did, under form of instrument, in April 1673, require Ascog to deliver the bond; whereupon now Bogany intents process against Ascog's Representatives, concluding payment of the whole sums in the bond.
Among other things, it was answered for Ascog's Children; That, at such a distance of time, the instrument founded on cannot be sustained as probative, unless the notary and witnesses were alive to support the same; for the instrument being only assertio notarii, it were of dangerous consequence to sustain it after so long a time; and though law gives faith to the instruments of notaries acting in certain cases, where law has determined they should be probative, yet that can never be extended to their actings in such cases as the present; for that were to extend their faith beyond what law and practice allow them. Holograph writs carry a much stronger proof of their verity than instruments of notaries; and yet law has cut them off by 20 years prescription; and this instrument is within a few years of the long prescription.
Replied for the pursuer; That, in some particular cases, our law gives such instruments entire faith; as is observed by the Lord Stair, Lib. 4. Tit. 42. § 9., where he takes notice of the particular cases in which they are probative of themselves, and brings in the present case among the rest, in these words; “In other cases, when men will not do acts which they are obliged to do, &c. instruments taken thereupon by notaries, having witnesses inserted and required, are probative, which no other witnesses could prove.”
Duplied for the defenders; That the plain meaning of the Lord Stair's words is, that these facts, which ordinary witnesses could not be admitted to prove, may, in the cases mentioned, be proved by instrumentary witnesses; which is so far from proving that the bare assertion of a notary is sufficient, that it proves the contrary, viz. that though these instruments were recent, they must be supported by the testimony, and not the subscription of the witnesses.
The Lords found the instrument not probative of itself, unless it were adminiculated by some document or other probation.
Act. Hall.Alt. Coult.Clerk, Mackenzie.
Fol. Dic. v. 2. p. 243. Bruce, v. 1. No 111. p. 137.
*** See in the case Malvenius against Bailie, No 1. p. 583. voce Apprentice, the offer back of an apprentice, who had eloped, under form of instrument, was not found proved by the instrument itself, but the witnesses and notary were examined thereupon.
