Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 WRIT.
Subject_3 What if one of the instrumentary witnesses is dead, and that the only other instrumentary witness gives oath of the subscription by him, as witness, being truly his subscription, but adds, that he did not see the granter of the deed adhibit his subscription.

William Sibbald
v.
John Sibbald

Date: 18 January 1776

Click here to view a pdf copy of this documet : PDF Copy

[Faculty Collection, VII. 162; Dictionary, 16,906.]

Justice-Clerk. If, after possession has been had for near 40 years on a deed, and one of the witnesses is dead, you will set aside the deed upon the evidence of the other witness's saying, that, at the distance of 40 years, he did not see the party subscribe; you will overturn half of the settlements in Scotland.

Hailes. What has been just now said, will be confirmed by an observation drawn from the testimony of this old man when compared with the deed itself. He says, that the paper was folded when he subscribed, which concealed the subscription of the principal party; and as to this fact, he is very positive and distinct. Now, it is plain that he was here speaking at random; for it is evident from ocular inspection, that there never was any such fold in the paper as he mentions, and that it would have been scarcely possible to make such a fold, without covering part of the paper on which the witness himself has wrote.

On the 18th January 1776, “The Lords repelled the reasons of reduction;” adhering to Lord Auchinleck's interlocutor.

Act. A. M'Conochie.

[Petition refused without answers.]