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Scottish Court of Session Decisions >>
Young v Calderwood. [1708] Mor 3105 (7 February 1708)
URL: http://www.bailii.org/scot/cases/ScotCS/1708/Mor0803105-022.html Cite as:
[1708] Mor 3105
Deeds executed in a Wrong Form. - Sasine not Registered. - Wrong Symbols of Sasines.
Young v. Calderwood
Date: 7 February 1708 Case No. No 22.
A sasine by magistrates, with earth and stone, instead of staff and baton, was sustained on account of the custom; but the Lords declared they would hold any such future error to infer nullity.
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In a competition for the rents of a house in Edinburgh, betwixt Sir Thomas Young and Calderwood of Pitteddie, it was objected, that Sir Thomas's sasine was null, because in the resignation made in the magistrates' hands, as the Queen's commissioners, the symbol of surrender is made to be tradition of earth and stone, which is the symbol proper only in sasines, whereas their fixt and known symbol by our stile, past all memory, is by staff and baton; and it is of very dangerous consequence, to change our ancient stiles, especially having no such warrant by the procuratory. Answered, It is confessed to be an error and mistake, but which has so generally prevailed, that many others have run into the same error; and to annul them all at one stroke may be very prejudicial to the lieges; for whatever the Lords may do in time coming, yet for bygones, error communis may so far excuse such an error. The Lords having tried at the town clerk, and having found there were many in the same condition, they sustained the sasine and resignation, and repelled the nullity; but resolved to make an act of sederunt discharging that practice in time coming, under the pain of nullity, in all competitions with other creditors, more formally infeft.
Fol. Dic. v. 1. p. 203. Fountainhall, v. 2. p. 428.
