Proof by the testimony of the instrumentary witnesses to a deed, that, they did not see the granter subscribe, nor hear him acknowledge his subscription, is competent to be allowed before answer.
Click here to view a pdf copy of this documet : PDF Copy
Peter and Catherine Swany, representatives of Patrick Swany merchant in Thurso, brought a reduction of a bond of caution, granted to the Bank of Scotland for Alexander Paterson, bank agent at Thurso, and subscribed by the said Patrick Swany. The averment on which the pursuers founded was, that neither of the two instrumentary witnesses in the bond saw Patrick Swany subscribe, or heard him acknowledge his subscription; and of this they craved a proof by the testimony of these witnesses. The Lord Ordinary allowed the proof before answers; and, on a reclaiming petition and answers, the Court ‘adhered to this interlocutor.’
The case of Franks against Franks, 9th July 1793, No. 30. p. 16822. was considered by the Court as fixing the law, that such evidence was competent whether it might or might not be sufficient to establish the fact averred.
Lord Ordinary, Robertson.Act. F. Jeffrey.Alt. Ad. Gillies.Agents. Geo. Napier, W. S. and James Ferguson, W. S.Ferrier, Clerk.
Fac. Coll. No. 18. p. 49.
