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Scottish Court of Session Decisions >>
Sir George Mackenzie v Bannatine of Newhall. [1668] Mor 16669 (22 July 1668)
URL: http://www.bailii.org/scot/cases/ScotCS/1668/Mor3816669-068.html Cite as:
[1668] Mor 16669
Uncles and cousin-germans to both parties admitted in proving the tenor of a latent writ.
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Sir George Mackenzie insisting against Newhall for making up the tenor of the inventory made by his father-in-law, bearing an assignation to his children of their portions, and having produced the transumpt before mentioned under the clerk's hands, as likewise a double of the said inventory collated and subscribed by the defunct's brother in law, and son in law, a little before his death, in presence of his friends; it was alleged, That the transumpt did differ from the subscribed double in a point material, viz. The assignation, or that part of the bond, which formerly was provided to one of his deceased daughters, whom the transumpt did name Cicilia, and the double Lillias. This allegeance was repelled, seeing Newhall could have no prejudice thereby, seeing that part of the bond, whether it belonged to Lillias or Cicilia, was assigned to his wife: And they found, that it was only an error of designing the name by the writer out of the transumpt, reserving always, in case of any controversy thereupon, by any party concerned, what the same might import as to the right of that part. This action being sustained upon the adminicles produced, the witnesses to be adduced for proving of the tenor being condescended on, it was objected, That they could not be received, because they were uncle or cousin-germans to the pursuer's Lady; notwithstanding whereof they were admitted, because they were in like degree both to the pursuer and defender, and that it was not possible to prove the tenor of such a writ but by friends and relations, to whom the same was communicated.
