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Scottish Court of Session Decisions >>
Lord Lindores v William Foulis and Sir John Foulis. [1706] 4 Brn 648 (12 June 1706)
URL: http://www.bailii.org/scot/cases/ScotCS/1706/Brn040648-0141.html
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.
Lord Lindores v. William Foulis and Sir John Foulis
Date: 12 June 1706
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David Lesly, now Lord Lindores, gives in a petition, representing, That he was infeft by his father, in anno 1694, in the fee of the lordship of Lindores; and the seasine duly registrate by Sir John Foulis: But that, the principal seasine being amissing, he had applied to John Macfarlane, who was notary to it, and got another principal from his protocol-book; and, by good providence, two of the witnesses being still in life, he had got their subscriptions and attestations likewise: but when he brings it to Mr William Foulis, now keeper of the register of seasines, and to Sir John, his father, who had marked the former, they both declined to do it:—Sir John, because he was functus and exauctorate, having de-mitted in favours of his son, who is now in officio; and Mr William refused, because it would be a sort of falsehood in him to mark a seasine of a date long prior to his entry, and when he was not keeper.
The Lords thought such a defect ought not to want a remedy; but some proposed a proving of the tenor. Others said it might be granted periculo petentis; but the plurality thought they might warrantably ordain Mr William, the present keeper, to mark it: and that there neither might be alteration, nor vitiation of the registers, which were dangerous, they appointed their act and warrant to be marked and inserted on the margin of the register where it was first recorded; which would bear the res gesta: and this was no new thing, for they had granted the like to Sir Andrew Ramsay on his supplication, as is observed by Stair, January 2, 1678.
