Scottish Court of Session Decisions

Subject_1 WRIT.
Subject_2 SECT. IV.

Instrumentary Witnesses.

Mungo Campbell
v.
Margaret Robertson

1698. November.
Case No. No. 116.

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In this case, the Lords had occasion to give another decision on the same 5th act of Parliament 1681*, in a pursuit by Mungo Campbell against Margaret Robertson, relict of John Bready, and now spouse to Anderson, writer in Glasgow; where a bond was quarrelled as false, because one of the witnesses deponed he did not know Bready, to whose subscription they subscribed as witnesses, being then a boy of 14, and called off the street to be a witness. The Lords were convinced the bond and debtor's subscription were true; yet, in respect of the foresaid act of Parliament, they found the bond not false, but null; and yet that knowledge of the party, which the act requires, cannot be understood of a distinct,

*See Grant against Keir, Sect 5. h. t.

particular, antecedent knowledge, but only that he called himself so to the witnesses; else many bonds, and other writs, may be questioned on this head. The design of the act was to prevent the suborning and personating one man for another, whereof there have been sundry instances; and Julius Clarus, Tit. De testamentis, Quæst. 59. gives a famous one, where the suborned testator spoke out of the bed to the witnesses; but what degree of knowledge of the party is here requisite is in arbitrio et religione judicis,

Fountainhall, v. 2. p. 20.