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Scottish Court of Session Decisions >>
David Edgar v Carnegie of Balnamoon. [1694] 4 Brn 223 (8 December 1694)
URL: http://www.bailii.org/scot/cases/ScotCS/1694/Brn040223-0504.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
David Edgar v. Carnegie of Balnamoon
Date: 8 December 1694
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The Lords advised the first article of falsehood in the improbation of a discharge pursued by David Edgar against Carnegie of Balnamoon, That Sym, the writer of it, was there designed, in 1658, servitor to Sir John Carnegie of Balnamoon; whereas they had adduced probation that he was then Commissary Nicolson's man, and was then come to Balnamoon. But a mutual probation being granted, the Lords found it more pregnant and positive that he was then Balnamoon's servant.
The next was, comparatione literarum of other subscriptions of Sym and Hercules Cramond, the granter of the discharge. But the Lords found, though there was some diversity, yet it is so lubrick a trial, that, per se, it is not illative of falsehood; seeing men's hand-writ will vary in a short time, even by the change of a pen, or the temper of the body, or through carelessness and inadvertency. The Lords sustained the discharge, and assoilyied from the improbation.
Some witnesses' testimonies, that had been adduced by the pursuer, were amissing; but as they were related, by their informations, it was thought they would not alter the case.
Then they pleaded the writ was null, by the 175th act, 1593; because the writer of it was not right designed. The Lords found this was not the case of the Act of Parliament.
