Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

Mr David Dewar
v.
The Earl of Mar and the Tenants of Alloa

Date: 22 December 1703

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Mr David having right by progress to two old infeftments of annualrent, granted by one of the Earls of Mar in 1631 to Sir John and Sir Charles Erskines, his sons, he pursues a poinding of the ground. The present Earl compears, and produces his public infeftment on the estate of Mar, proceeding on an adjudication; and objects against Mr David's authors' rights, that they were only base, and the bonds of provision, the warrants thereof, were not produced, and the seasines were not probative, being only the assertion of a notary. 2do, One of the seasines was null, wanting the notary's sign on the left side of his attest, which bears the knot with his name and motto, and which are specially required by the 76th Act 1540, and Act 79, 1563, where notaries are ordained to registrate the sign and subscription they are to use in all time coming, and to insert it in the books at their admission; and who does otherwise, they are to be punished to the death, and their notes and instruments to make no faith.

Answered for Mr David,—That now, after forty years, he was not bound to produce the warrants, by the 214th Act 1594, especially he being an adjudger and singular successor, who cannot be supposed to have his debtor's rights; but he produces a confirmation of the charters by the Earl of Mar, with a suspension against the liferentrix, and sundry other documents of possession. To the second,—That the sign and motto is not essential, nor the want of it a nullity; and the Acts of Parliament are in desuetude, except as to the punishing the notary; and even the making such an omission death, clearly proves the Parliament's meaning to have been, not for informalities, but where a man falsely assumed the office of a notary without being legally admitted. And every defect in a seasine will not annul it: It is true the attest is necessary: and these words vidi, scivi, et audivi, are essential; but, if a notary shall forget the preface, In Dei nomine, Amen, or the like, the seasine will [not] be thereupon null, being duly registrate. And the notary's designation and name being in the attest, and the confirmation, may supply this defect; and hundreds of seasines want the motto. So to make this a nullity, would lay down a dangerous preparative to brangle many securities in the nation.

Replied,—The Act 214, cited, relates only to procuratories and instruments of resignation and precepts of clare constat, exonering from the production of such, but not to dispositions and bonds of provision. And as to the confirmation; 1mo, Nihil novi juris tribuit; 2do, A null right cannot be confirmed; nonentis nuda sunt accidentia; quod nullum est ratificavi nequit.

The Lords thought the objection against the seasine new, and desired to know how the custom had gone in this case, and if the Act 214 concerned dispositions and bonds of provision; and, therefore, before determining, they resolved to hear it argued in their own presence.

Vol. II. Page 203.