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Mr Alexander Duncan of Lundie v William Innes Writer to the Signet. [1713] Mor 8344 (28 February 1713)
URL: http://www.bailii.org/scot/cases/ScotCS/1713/Mor2008344-023.html Cite as:
[1713] Mor 8344
Can Executions be Amended after being produced in Process? - Executions of Legal Diligence after Registration.
Mr Alexander Duncan of Lundie v. William Innes Writer to the Signet
Date: 28 February 1713 Case No. No 23.
A posterior assignation was preferred, because the first, which had been informal, was rectified after the other had been produced in process.
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In a competition for a sum due by John Scrimzeour of Kirkton betwixt the Laird of Lundie, as having right thereto by assignation from Kilmahew the creditor, and William Innes, who, after intimation of Lundie's assignation, obtained another assignation from Kilmahew to the same money; at calling of the cause before the Lord Polwarth Ordinary, William Innes having objected against the intimation of Lundie's assignation that it was null, as wanting subscribing witnesses in the terms of the act of Parliament 1681; and the objection being sustained, Lundie procured from the notary a new instrument of intimation of the same date with the former duly signed by him and the witnesses designed in the first intimation, who were willing to depone upon the verity of the intimation.
Alleged for Mr Innes; Lundie's first instrument of intimation having been registered and judicially produced, and an interlocutor past thereupon, there was a jus quæsitum thereby to Mr Innes, which could not be taken away by the notary's giving a new more formal instrument. The fact of intimating and taking instrument before witnesses, is not the essential solemnity, but the instrument itself duly signed by a notary and witnesses, and nobody ought to take an instrument from a notary till it is signed, de recenti, for fixing the facts of solemnity in the memory of the witnesses. Again, it were as reasonable to allow the intimation and solemnities to be proved judicially by witnesses, as to allow the defect of the instrument in question to be supplied by any new deed of the notary and witnesses.
Answered for Lundie; Albeit the first intimation was registered through inadvertancy, that could not alter the case, seeing law required it not to be registered; and it was inserted in the extract only because indorsed on the assignation.
The Lords preferred Mr Innes, in respect the last justaument was not produced till after the first was registered, and an interlocutor in the action founded upon it.
