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Scottish Court of Session Decisions >>
Laird Gormock v The Lady. [1583] Mor 16874 (00 April 1583)
URL: http://www.bailii.org/scot/cases/ScotCS/1583/Mor3816874-089.html Cite as:
[1583] Mor 16874
Found that a could not at the same time subscribe as Judge, and as notary for one of the parties.
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There was a decreet-arbitral given betwixt the Laird of Gormock and the Lady sought to be registered. It was alleged that it ought not to be registered, nor could not be esteemed to be a decreet-arbitral, because it was subscribed by the gentlewoman, by her hand led at the pen by a notary, the which notary was one of the Judges arbitrators, and had subscribed the same as Judge-arbitrator, and so the said notary could not sustain at one time both the person of a Notary and Judge, more than into a judgment and process one person must not be both Clerk and Judge, et arbitria sunt instar judiciorum: To the which it was answered, That in divers respects the said person might sustain both the person of the notary to subscribe in the name of the woman, and to be also one of the Judges arbiters, and of the law a notary may be a Judge-arbiter, quia quilibet potest esse arbiter, qui non prohibetur. D. De arbitris.
The Lords found by interlocutor, that the said decreet ought not to be registered, and that the said notary might not be both Judge and also notary in the said cause; licet bona pars Dominorum in contraria fuerunt opinione.
