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Scottish Court of Session Decisions >>
Andrew Hadden v Nicol Campbell. [1670] Mor 12317 (25 January 1670)
URL: http://www.bailii.org/scot/cases/ScotCS/1670/Mor2912317-084.html Cite as:
[1670] Mor 12317
The Lords ex officio ordained communers, notaries, and witnesses to be examined as to this reading of a writ to the granter, and the warrant to subscribe it.
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Andrew Hadden having charged Nicol Campbell, upon a bond subscribed by him as cautioner for Samuel Meikle goldsmith, Nicol Campbell suspends, and raises reduction on this ground, that he being an illiterate man, and could not subscribe, he was induced to be cautioner for Samuel Meikle, but on these express terms, that he should only be cautioner for 1200 merks, and accordingly he gave orders to the two notaries, to subscribe for him as cautioner for 1200 merks, the said Andrew Hadden the creditor, being then present at the warrant and subscription; and yet a far greater sum is filled up in the bond, which he offers to prove by the two notaries, the witnesses inserted, and the communers. The charger answered, That he oppones his bond, being a clear liquid bond in writ, which cannot be taken away by witnesses. The suspender answered, That albeit regularly writ cannot be taken away by witnesses, yet fraud or circumvention, or the terms of agreement and communing in contracts, are always probable by the oaths of the communers, writer, and the witnesses inserted.
The Lords would not receive the reason to be proved in the ordinary way by witnesses, but ex officio ordained the communers, notaries, and witnesses, to be examined, that they might consider the clearness and pregnancy of their testimonies, whether this writ was read to the suspender when he gave warrant to subscribe, and what was read for the sum, and on what terms he gave warrant to subscribe.
