Scottish Court of Session Decisions

Subject_1 SASINE.
Subject_2 SECT. VI.

Sasine of different Lands taken place at one only. - The same Person both Bailie and Attorney. - Sasine taken in the Night. - Notary's Attestation of the number of Leaves.

Clark and Wardel,
v.
Creditors of Young, Competing

Date: 7 February 1752
Case No. No. 28.

The same subject.

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In the case observed supra 17th July 1741, Duke of Roxburgh contra Hall, the Lords repelled the objection to a sasine wrote book-ways, that the notary's docquet did not specify the number of leaves, as in express words is required by the statute 1686, authorising sasines to be made out in that form, in respect of an attestation from the keeper of the register, and of several writers to the signet, that there were more sasines that laboured under the same defect, than there were sasines in terms of the statute, and of the danger that might ensue by annulling the sasines for a defect which in practice has been so general; but declared they would make an act of sederunt reviving and enforcing the statute.

The like objection was now made by Clark to Waddel's sasine on his charter of adjudication, and which could not be made in a case more favourable for the objector, as all he proposed by it was that he might not be excluded from a pari passu preference, as not within year and day of the first effectual adjudication; and the objection was farther enforced from this, that what prevailed with the Lords to sustain the sasines in the Duke of Roxburgh's case was that the Duke's sasine was of an old date, long before the 1730, in which year the objection was first made in the question between Sir James Stewart and Lady Castlehill, and that the attestations of the keeper and writers bore, that preceding the making the objection in the said year 1730, the practice had been, as has been said, but that the year 1730, the practice had been conform to law, which therefore can afford no aid in support of the sasine in the present case, which is of date in 1748; especially when it is added, that an attestation was now produced under the keeper's hand, that ever since the Duke of Roxburgh's case, the directions of the statute had been observed; and from these considerations it was urged, that it was no good argument for supporting the present sasine, that the act of sederunt proposed in 1741 had not yet been published, which was what the defender relied on.

Nevertheless, the Lords “Repelled the objection in this case also,” but resolved that they would forthwith make their act of sederunt, and named a committee for that effect.

Fol. Dic. v. 4. p. 264. Kilkerran, No. 8. p. 507.