Scottish Court of Session Decisions

Subject_1 CONSUETUDE.
Subject_2 SECT. I.

Habite and Repute a Notary, Messenger, &c.

Spence
v.
Reid

Date: 10 January 1610
Case No. No 3.

Found as above.

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Spence pursued the Executors of umquhile John Reid to pay the annualrent of eleven merks yearly, of all years since the year 1595, conform to a bond, by the which the said umquhile John Reid, as cautioner for his bother, was bound to have paid to Spence's mother, the sum of 110 merks, before Martinmass 1595; and, failing thereof, to infeft her and her heirs in an annualrent of eleven merks yearly, and to pay as well not infeft as infeft. In the which cause, the Lords found, that a party bound by an heritable bond, not having any heir, and not being of that quality that he might have any heir, that the party, to whom he was bound, had sufficient action against the defunct's executors, for fulfilling of the said heritable bond. Next, it was excepted, that the bond was null; because it was for an heritable annualrent, and was not subscribed by two notaries and four witnesses, but only by Stephen Ballentine notary, and John Moscrop co-notary, and three witnesses, it being true that Moscrop was no notary, but was hanged for behaving himself as a notary, he not being a notary; albeit, it being provided by act of Parliament 1579, that all writs, importing heritable infeftment, shall be subscribed by two notaries, in presence of four famous witnesses, otherwise to be null. Notwithstanding whereof, my Lord Chancellor, President, and the most part of the Lords, sustained the bond, in respect of the smallness of the matter, and that Moscrop, co-notary, was tentus habitus et reputatus, albeit there were but three witnesses inserted.

Fol. Dic. v. 1. p. 201. Haddington, MS. No 1739.