Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION IV.

Private Deed, how far probative.
Subject_3 SECT. IV.

Deed without witnesses, how far probative.

Lord Forbes
v.
Marquis of Huntly

Date: 28 November 1611
Case No. No 490.

A holograph discharge without witnesses, by a mother to her son, found not to prove its date against a singular success sor in the mother's right.

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My Lord Forbes being infeft by Robert Joussie, with consent of James Curll, in the lands of Inheane, and made assignee by Robert Joussie to the contract whereby the Marquis of Huntly was obliged to infeft Robert Joussie, his heirs and assignees, in the said lands, enter him to the possession thereof at Martinmas 1593, and obtain to him Peter Mortimer's renunciation of the said lands, charged the Marquis upon the said contract. The Marquis suspended the charge for the said Mortimer's renunciation, because he had delivered it to James Curll in anno 1593, and reported his acquittance, all written and subscribed with his own hand. It was alleged, That the acquittance could not prove against my Lord Forbes, because by the act of Parliament anno 1540, all writs of consequence wanting witnesses were null, and this acquittance wanted witnesses. It was replied, That it was holograph, and so needed no witnesses. It was answered, That giving, and not granting that it were holograph, it could not prove against my Lord Forbes, who was singular successor, seeing it was not his deed, and wanted the solemnity of the law. The Marquis answered, That his acquittance being valid in the beginning could not become invalid ex post facto by any subsequent assignation, disposition, or alienation, made by James Curll. The Lords having considered of the dangerous consequence, if parties alleged that writing and subscribing of writs wanting witnesses should make faith in prejudice of singular successors, and that thereby not only might the parties themselves, after that they had made alienations or assignations, for any onerous causes, make private antedated writs with their own hand, wanting witnesses, whereby they could not be improved, but also falsars and perfect writers, skillful in counterfeiting men's hand writing, might so easily falsify a man's writing, as if it might subsist without witnesses, it should never be able to be improved; they found not that acquittance alleged written and subscribed by James Curll, sufficient to verify the suspension against my Lord Forbes, being a singular successor, because it wanted witnesses, and that it was less harm that the Marquis should sustain loss by his own default, who had not provided to himself a perfect and formal security, than that the preparative of such an acquittance should be sustained.

Fol. Dic. v. 2. p. 259. Haddington, MS. No 2318.

*** Kerse mentions this case, No 19. p. 12271.