Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.

Alexander Forbes
v.
Patrick Reid

Date: 19 February 1698

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Alexander Forbes, goldsmith in Edinburgh, as assignee by Elizabeth Ogilvie, late spouse to Mr Patrick Reid, against the said Patrick; being a reduction of the contract matrimonial past betwixt them, on this reason, That it was not truly subscribed by her, but Mr Patrick had led her hand, whereas there should have been notaries, seeing she could not write herself, and it was not read to her; and that he promised he should afterwards mend any faults in it, but never did it, having circumvented the poor woman of all her means, and yet grudged her an aliment when on life; which moved her to raise a reduction of her contract on fraud and circumvention; and, seeing the pursuit was against her husband, to get herself authorised with a curator ad litem, by a warrant of the Lords, as is also practised in the French law: and, before her death, she assigned the process to Mr Forbes, her nephew. And the instrumentary witnesses being examined, both of them depone, that though they saw her take the pen in her hand, yet none of them saw her subscribe her name. One of them says he heard her say, she could not write. The other qualifies it, that her words were, to his remembrance, that she could not write well; that it was not read, at least all, because they were in haste to go to the church to be married, being a weekly-sermon-day, and the preaching was near ended, and therefore Mr Patrick Reid said to her and the witnesses, if there were any faults in the contract he should help them afterwards. This corning to be advised, the pursuer further adduced five several papers, some before, and others of them after that contract, signed by notaries for her, bearing, she could not write; all which show these subscriptions at the bottom and margin of the contract are not hers, but at best affixed in her presence, or by leading, though not a notary: and though he were, it would not convey of her means assigned (which were all bonds bearing annualrent, and so fell not under the jus mariti,) above 100 merks.

Answered for Mr Patrick,—That the witnesses' depositions prove nothing against him; for, non memini whether she signed or not never improves: and witnesses in contracts do not always look on at the parties' signing; it is enough they do not contradict or reclaim.

The Lords thought the witnesses had minced and concealed the true matter, for fear of being found liable when they sign as witnesses to one whom they saw not subscribe, nor own the subscription; as was found in 1691, between Peady, Young, and Mr Hugh Blair, upon the 5th Act of Parliament 1681, discharging all witnesses to subscribe, except in one of these two cases; and yet this case did not afford sufficient evidence of her subscription's being false: therefore they only declared the contract of marriage null; seeing the witnesses confessed they did not see her subscribe, as was their duty to have done.

Vol. I. Page 826.