Scottish Court of Session Decisions

Subject_1 FRAUD.

Chatto's Case

1753, Feb. 6.
Case No. No. 30.

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Chatto being accused of forging a writing as granted by the last Duke of Roxburgh in favours in general of the feuars of Kelso, which does not now appear, and which Chatto on his examination said that he burned,—the pursuer's petition and complaint being answered, the pursuer craved a diligence for proving. Lockhart alleged, that as the writing was not in Court, we could not proceed to try the forgery, which he said never was done except in Captain Barclay's case in 1669 mentioned by Sir George M'Kenzie, for that there was no corpus delicti, that there was already a certification against it as to all civil effects, and the actual forgery could only be tried by the Court of Justiciary. The Lords notwithstanding gave a diligence to prove, for they thought that a pursuer who had got a certification in absence, perhaps against a party out of the kingdom, but who at the same time could prove the actual forgery, could not be obliged to rely wholly on the validity of his certification, but might bring his proof of the forgery in case the writing should afterwards appear, whether the forger could be punished or not; and in Barclay's case they took the proof, as is observed by Sir George M'Kenzie, and Lord Stair, 26th January 1670. (See No. 37. voce Witness.)