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Scottish Court of Session Decisions >>
Morton v Elliot. [1630] Mor 6840 (22 January 1630)
URL: http://www.bailii.org/scot/cases/ScotCS/1630/Mor1606840-010.html Cite as:
[1630] Mor 6840
Writs of importance subscribed by only one Notary.
Morton v. Elliot
Date: 22 January 1630 Case No. No 10.
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Morton pursues Elliot and her spouse for payment of L. 106 contained in a bond made by her to the charger before she was married. It was alleged, the bond was null, for L. 106 was a matter of importance, and the bond was subscribed but by one notary. It was answered, That the charger was content to restrict her charge to L. 100, which the Lords sustained, and ordained this decision to be observed in the like cases.
Fol. Dic. v. 1. p. 463. Auchinleck, MS. p. 143.***Durie reports the same case.
1629. December 19.—In a suspension of charges upon a bond of L. 100 of principal sum, and L. 24 of penalty, because the bond was subscribed by the alleged debtor, only by one notary subscribing for him, and three witnesses inserted, and so being null, being a matter of importance, against the act of Parliament and act of Session; and the charger retrenching the sum to L. 100, and passing from the rest, he alleged the bond so retrenched was sufficient. The Lords sustained the bond being so retrenched, albeit it was subscribed by one notary, and before three witnesses; for an obligation of that sum might be made effectually, being so subscribed; and so it was found it might be retrenched, albeit the party contended, that it could not be retrenched no more than if it had been once of L. 1000, and retrenched to a lesser sum to make it subsist; which was not respected; but allowed the bond, and found no necessity to take the debtor's oath thereon, who was living.
This action being called 13th January 1630, This decision was ordained to stand, notwithstanding of the act of Session declaring bonds above L. 100 to be matters of importance; and found, That the party might retrench the sum, and that they would permit in like cases the parties to retrench bonds in time coming, when such questions occurred; and here this was the rather done, because the debtor was obliged in the bond to pay the sum at two terms, so that it was respected as if the sum had been owing by two obligations. Item, It needed not to be retrenched within L. 100.
Act. Craig.Alt. Baird.Clerk, Gibson.
Durie, p. 476.
