Scottish Court of Session Decisions

Subject_1 WRIT.
Subject_2 SECT. I.

Subscription of the Party.

Sir Thomas Gordon
v.
James Murray of Broughton

Date: 21 June 1765
Case No. No. 28.

Not bearing in the testing clause to be subscribed by the granter. - Subscribed without his Christian name. - Notorial docquets.

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Nathaniel Gordon served heir male and of provision in general, to the estate of Carleton, with a reference to the clauses of the entail, and disponed the lands to Alexander his son in fee simple.

Alexander Gordon sold the estate by minute of sale to Alexander Murray of Broughton, who led an adjudication in implement, and also in security of sundry debts, on which he was infeft.

Sir Thomas Gordon of Earlston, the next substitute to Alexander, pursued a declarator of irritancy, for having it declared that Nathaniel and Alexander Gordons had irritated their rights for themselvs and their descendents.

Compearance was made for James Murray, now of Broughton, who pleaded, inter alia, that Nathaniel Gordon had right to the estate, independent of the tailzie, by expired sadjudications.

One of the adjudications acquired by Nathaniel Gordon was led by George Fullerton of Dreghorn, for the accumulated sum of £2445. 3s. 4d. Scots.

The testing clause of several of the grounds of debt on which this adjudication proceeded, was thus expressed:

“In witness whereof thir presents, written by Alexander Cairns notar at the burgh of Galloway, the 24th day of August 1669 years, before these witnesses.”

Objected: There are here no words importing that the deed was subscribed by the granter.

Answered: Who the granter was, sufficiently appears from the deed, which is subscribed by him. The writer and witnesses are designed, and the witnesses subscribe, which is all that the law requires.

“The Lords repelled the objection.”

The conveyance of one of the grounds of debt, in the same adjudication, was subscribed by notaries, with the following doequets:

“John Gordon nottar-public, at command of the above named Marion Macgarmorie, with her hand at the pen, affirming she cannot write, be this my subscription. (Signed) John Gordon. Ita est Joannes Calendar notarius publicus, ac co-notarius in prasmissa requisitus.”

Objected: 1mo, The first docquet is informal, as neither certifying that the notary subscribed for the party, nor that he had a mandate from her for that purpose. 2do, The second docquet is improbative, as not subscribed.

Answered: 1mo. There is no particular stile required in these doequets; and, it is sufficient, if it appear that the notary authenticated the deed at the desire of the party; 2do, The docquetsr of notaries do not require to be subscribed.

“The Lords repelled the objections.”

It was farther objected to the same conveyance, that, though it is subscribed by two notaries, there are only three subscribing witnesses.

“The Lords sustained this objection, in so far as the debt conveyed exceeds the sum of £100. Scots.

The assignation by George Fullerton of Dreghorn to Nathaniel Gordon was subscribed, Fullerton of that Ilk, without his Christian name.

Objected: This is no subscription. The act 1672, C. 21. requires all, except noblemen and bishops, “to subscribe by their christened names, or the initial letters thereof, with their sirnames;” adding, that “they may adject the designations of their lands, prefixing the word of to said designations.” This may justify the addition of that ilk, but cannot justify the want of the Christian name.

Answered: The statute does not annul subscriptions contrary to its directions; but subjects the contraveners to punishment by the privy council.

“The Lords repelled the objection.”

Act. Lockhart, Wa. Stewart, H. Dundas. Alt. Ferguson, Montgomery, Macqueen. Reporter, Coalston. Clerk, Kirkpatrick. Fac. Coll. No. 10. p. 216.