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Scottish Court of Session Decisions >>
Duke and Dutchess of Monmouth v Scot of Clerkington. [1667] Mor 12266 (12 November 1667)
URL: http://www.bailii.org/scot/cases/ScotCS/1667/Mor2912266-008.html Cite as:
[1667] Mor 12266
Duke and Dutchess of Monmouth v. Scot of Clerkington
Date: 12 November 1667 Case No. No 8.
Found, that requisition and such actus legitimi cannot be proved but by instruments perfected as to all necessary solemnities, at least the minutes of the same under the notary's hand; and though the debtors or party concerned may know such deeds were done de facto, they may be ignorant, and are not obliged to declare, whether they were legally done or not.
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Requisition being made by the Duke of Monmouth and his Lady to Sir Laurence Scot of Clerkington, for a sum of money, but the notary having deceased before his instrument of requisition was extended, and there being only a minute of the same unsubscribed, the said Duke and Dutchess pursued Clerkington for extending and making up the instrument; and craved, that Clerkington and the witnesses might be examined to that purpose; and that upon probation, that the requisition had been made conform to the said minute, an instrument under the clerk-register's hand should be equivalent to an instrument.
The Lords refused the said desire, in respect the said minute was neither subscribed by the notary nor in his protocal.
And that requisition and such actus legitimi cannot be proved but by instruments perfected as to all necessary solemnities, at least the minutes of the same under the notary's hand. And though the debtors or party concerned may know such deeds were done de facto, they may be ignorant, and are not obliged to declare, whether they were legally done or not.
Act. Lockhart.Alt. Spottiswood.
Fol. Dic. v. 2. p. 212. Dirleton, No 102. p. 40.
