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.
Murray v. Murray and Dundas
Date: 27 February 1708
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Murray's wife being infeft in a tenement in the Canongate, thus, in dimidietate trium partium, she dispones this to her husband; but when the clerk comes to extend the seasine, he infefts him not in dimidietate trium partium, (as the wife's, the disponer's seasine ran,) but in dimidietate tertiœ partis tenementi. The daughter, and only heir of the marriage, serves herself heir to her mother, and infefts herself, as her mother was infeft, in dimidietate trium partium: and having withdrawn from her father, and disponed to one Ann Dundas, and competition arising for the rents, it was contended, The father, by his infeftment, had but right to a half of a third part, which makes a sixth part of the whole, and they had the half of three parts; which being the half of the whole, they behoved to be preferred to the maills and duties, paying him the sixth part.
Answered,—This was but a pure and absolute mistake in the notary, turning the numerus ordinalis into the cardinal, ignorantly thinking them all one; and the mother never designed any such restriction. Yet the Lords found they could not mend it, and, therefore, found he had right to the said part, and Dundas to the rest.
Then he alleged,—That the principal disposition bore a marginal note, disponing the half of three third parts to him; which must regulate all: but the extractor had neglected to take in this margin into the extract now lying in process; and, therefore, craved a warrant to produce the principal.
The Lords ordained the clerks to transmit the principal, to see if that marginal note was signed, and how it runs, and why it was omitted in the extract. By thir last two decisions, we may see what care ought to be taken in wording clauses, and that clerks and notaries should be exact in the Latin tongue, as the 45th Act 1587 requires; which few of them are, as, by experience in then-examinations, I oft found; and therefore remitted some of them. And it were to be wished, for the general good of the lieges, (who oft lose their causes through their ignorance,) that the Lords were most strict in admitting them. It is an old observe of the eminent Azo, per nequitiam et imperititiam notariorum peribit mundus.
