A writ was subscribed by different parties at different times, and a witness to all the subscriptions wrote his name before that of another who was only witness to the first, so that it was said he had written before the later subscriptions, and it did not appear whether they were made before him or not. The writ was sustained.
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James Edmonston of Ednam, being prohibited by the tailzie whereby he held his estate, to provide younger children without the consent of certain friends, entered with their consent into a contract of marriage; and thereby provided the number of three or more to 20,000 merks to be divided by him at any time of his life, and obliged himself to aliment them till the division.
Isabel Edmonston pursued Andrew her eldest brother for her share; to which he answered, the consent of the friends was not validly adhibited, for that the contract had been signed by the parties, and two of the consenters, before three witnesses, one of whom was the writer, and signed betwixt the other two, and by two other consenters of an after date, at two several places, before, as the testing clause said, the said writer, and two several witnesses, who both subscribed, but not the writer; for with regard to his name, which appeared at the deed, it was evident it had been written of the first date, being above the subscription of a person who was only witness to the subscriptions then adhibited.
The Lord Ordinary, 22d November, “repelled the defence;” and the Lords refused a bill, and adhered.
