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Scottish Court of Session Decisions >>
Marshall v Marshall. [1623] Mor 6839 (13 November 1623)
URL: http://www.bailii.org/scot/cases/ScotCS/1623/Mor1606839-008.html Cite as:
[1623] Mor 6839
Writs of importance subscribed by only one Notary.
Marshall v. Marshall
Date: 13 November 1623 Case No. No 8.
Found in conformity with the above.
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In an action of transferring, Marshall contra Marshall, the Lords sustained a sasine produced to verify the defender to be heir to his predecessor, which was given to him by has and staple, by the bailies of Kirkcaldy, of a tenement of land in Kirkealdy; which sasine, the Lords found sufficient to prove the defender heir, albeit that it was alleged, that it could not prove, wanting an adminiule, being only the assertion of a notary, and no retour, nor other warrent produced for giving thereof. And where it was answered by the pursuar, That Kirkcadly was the King's free burgh, and that the form in all burghs royal duplied. That albeit Kirkcaldy had the privilege of the King's free burghs royal, yet they hold not their lands, nor the town of the King's Majesty in burgage; but they hold the same of the Prince, as Lord of Dumformline, so that sasine of the lands, so holden, could not be given without some warrent or adminicle; albeit the King granted them the liberty of a burgh, which altered not the holding of their town and lands; which allegeance and duply was repelled, in respect the said sasine was the defenders own deed, whereupon he himself had taken instruments, and so could not oppose to the same; and for the same reason, they repelled this other allegeance, whereby the defender quarrelled the sasine upon nullity, for not being registered in the clerk of registers books, because that allegeance was not competent, but to a third party, who had a sufficient right in his own person, as is expressed in the act of Parliament, anno 1617, cap. 16. which is the ground of the allegeance, far less could the excipient impugn his own right.
In this same process, the Lords found an obligation of L. 100 null, which was subscribed by a notary and four witnesses, because it was not subscribed by two notaries, and found any writ bearing L. 100, and above, to be a matter of importance, and would not suffer the party to retrench the obligation to any less quantity, inferior to the sum therein expressed. See Proof. Registration. Writ.
Act. Lermonth.Alt. Aiton.Clerk, Scott.
Fol. Dic. v. 1. p. 463. Durie, p. 79.
