The Creditors of Graham of Mossknow, v. Robert Grierson
Date: 26 December 1752 Case No. No. 136.
If an instrumentary witness be designed brother-german, when he is brother-in-law, the writ is null.
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In the ranking of the creditors of Graham of Mossknow, there was an interest produced for Robert Grierson, viz. a bond for 900 merks, dated in 1683, granted by Robert Telfer as principal, and William Graham of Mossknow as cautioner, to Sir Robert Grierson; and a bond of corroboration thereof by the said William Graham to the said Sir Robert, dated in 1699, together with an adjudication of the estase of Mossknow on the said grounds of debt; to all which Robert Grierson had right by progress.
The other creditors objected to this interest, That the original bond is null in terms of the act 1681, in regard that John Agnew, one of the witnesses, is designed brother-german to William Irvine of Bonshaw; whereas he was not brother-german, but brother-in-law to him; and as this was a false designation, or one which did not agree to John Agnew, it could not be considered as a designation of the witness in terms of the act, or make the bond in a better case than if John Agnew had not been designed at all.
Answered for Robert Grierson, That the act 1681 was intended to prevent forgery, but not to cut down bonds, truly executed, upon niceties and criticisms; and seeing constat de persona, and that John Agnew is designed, the bond is not null in terms of the statute, though part of the designation does not agree to the witness: Had he only been designed brother to Bonshaw it would have been sufficient; and therefore the addition of brother-german, in place of brother-in-law, cannot annul the bond: 2dly, The bond is homologated by the bond of corroboration.
Replied for the other creditors, That the homologation can have no effect in this case, because Graham of Mossknow was only cautioner in the original bond: The principal debtor did not join in the corroboration, and therefore the original bond still remained null with respect to him; and consequently the cautioner could not be bound.
“The Lords found the bond void and null.”
For Robert Grierson, Hay.For the other creditors, Ja. Erskine, junior.Clerk, Marray.
Fac. Coll. No. 55. p. 81.
