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Scottish Court of Session Decisions >>
Grant, Wright in the Canongate, v Captain Keir. [1698] Mor 16913 (29 November 1698)
URL: http://www.bailii.org/scot/cases/ScotCS/1698/Mor3816913-148.html Cite as:
[1698] Mor 16913
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This was a reduction of a disposition made by Grant's wife, of some land at Musselburgh to the Captain, before her marriage to Grant, who suspected the right was antedated to defraud him, but being unwilling to venture it on the oaths of such witnesses, he first insisted on this reason, that the disposition was null, because, it having only two witnesses, one of them called Robert Rollo is only designed indweller in Edinburgh, which is not sufficient now, since the 5th act of Parliament in the year 1681; for there being so many inhabitants in Edinburgh, and sundry of the same name, they might as well design one indweller in such a shire, the intent of the law being to know witnesses in case falsehood were objected, as appears from act 80, 1579, and act 179, 1593; and from Stair, Title, Reductions and Improbations; 3d February, 1665, Falconer, No. 107. p. 16883; 21st February, 1672, Baillie, No. 147. supra; 22d February, 1676, Innes, Sect. 11. h. t.; and 21st July, 1680, The Comprisers of Enoch, No. 3. p. 183. Answered, The act of Parliament 1681 requires indeed that witnesses be designed, but determines nothing what designation shall be sufficient, and what not, and “indweller in Edinburgh” is as good as writer, and it has never been controverted; and if this were sustained as a nullity, it would reverse and endanger hundreds of bonds and other securities. It is true, if they offer to improve the subscription as false, then they may be put to condescend if there be more of the same name in Edinburgh, to design which of them it is; but it can never import a nullity; see 7th February, 1672, Stuart of Kettleston against Kirkhill, No. 564. p. 12654. and Sir George M'Kenzie's Observes on the foresaid acts of Parliament. The Lords repelled it as a nullity, but thought if the pursuer insisted for it, the defender would be obliged to condescend if the said Rollo was dead or alive, and to distinguish him so as to be known from others of that name, seeing the party's subscription was not denied, but was only suspected to be antedated, to prejudge the husband of his jus mariti.
Thereafter, Mr. Grant insisting on the improbation of the disposition quoad datam, the Lords ordained Keir to condescend and design this Rollo, the witness more specially than he is by the writ.
