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Bruce v Smith. [1577] Mor 845 (24 January 1577)
URL: http://www.bailii.org/scot/cases/ScotCS/1577/Mor0200845-043.html Cite as:
[1577] Mor 845
Subject_1 ASSIGNATION. Subject_2 Formalities of an Instrument of Intimation.
Bruce v. Smith
Date: 24 January 1577 Case No. No 43.
An instrument of intimation of an assignation was rejected, because it neither bore the clause, de cujus procuratoris mandato mihi liquide constabat; nor, (which would have supplied it,) was there any procuratory extant, tho, at the distance of 25 or 26 years.
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The Laird of Clackmannan took to prove the tenor of ane reversion against one Sampson Smith, of the land of Rathie; ought not to be heard to prove the same, because the reversion was discharged; he was made assignee to the reversion to his umquhil grand-fire against David Bruce of Clackmannan; the whilk assignation was made duly intimate to the said Smith; and for that effect produced an instrument with the said assignation, bearing, that sick ane man et procurator et procuratoris nomine, made intimation of sick an assignation to the said Smith; but it bore not de cujus procurators mandato mibi liquide constabat:—Therefore it was alleged by Smith, That this instrument was not sufficient to verify the said intimation to the assignee without the procuratory was produced that gave the power to make the said intimation, aut saltem in clausula illa, de cujus procuratoris mandato mihi liquide constabat.—To this was answered, That always the instrument bore that intimation was made, and it being facto tam antiquo, twenty-five or twenty-fix years syne, the noblemen of Scotland use not to keep the procuratories or mandates frae the time the turn be done; for the procuratories are made in paper, and the readier to lose and consume.—The Lords found by interlocutor, the intimation made by the instrument not sufficient, because the procuratory was not produced, licet bona pars dominorum fuit in contraria sententia ratione prœdicta mota, et fuit factum antiquum, and procuratories and mandates that are made in paper, use not to be kept so long in paper.
