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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Reid v Baxter [1838] CS 16_994 (10 March 1838) URL: http://www.bailii.org/scot/cases/ScotCS/1838/016SS0994.html Cite as: [1838] CS 16_994 |
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Page: 994↓
Subject_Writ—Notary's Doquet.—
Terms of notarial doquets to deeds not signed by the party which held not to afford ground for challenging the deeds, although they did not set forth in express terms the granter's inability to subscribe.
Sequel of the case reported ante, p. 273, and XIII, 1063, which see.
The deed of settlement and codicils, which were the subject of this reduction, were challenged, inter alia, in respect of the terms of the doquets of the notaries who subscribed the deeds on behalf of the testator. The principal deed bore to be executed as follows: “At the special
request of the within designed John Reid, who, from a defect of sight or dimness of vision, cannot see to read write clearly, as he asserts, and being desirous to execute the foregoing deed in a valid form, so as to exclude challenges on the head of blindness or defect of sight, therefore we, John Drysdalc and James M'Hardy, notaries-public and co-notaries in the premises, subscribe the same for him, he having, in token of his authority, touched our pens respectively, and authorized us to do so; the said deed having been previously read over and explained to the said John Reid, in presence of us and the four subscribing witnesses.”A subsequent codicil bore to be executed in the same way, and another codicil as follows: “At the special request of the within designed John Reid, who, from a defect of sight, or dimness of vision, cannot see to read write, as he asserts; therefore we,” &c. as above. In regard to these doquets, the pursuer pleaded,—that, looking to the principles by which the form and solemnities of notarial subscription are regulated, the executions are invalid, the doquets not setting forth in express words, as required by the statutes 1540, c. 117, and 1579, c. 80, the granter's “inability to subscribe,” which is the ground and warrant of notarial execution, 1
_________________ Footnote _________________
1 Birrel v. Moffat, and other authorities, ante, p.274.
The Lord Ordinary, on the case being remitted to him by the Court, found that the deeds in question were not challengeable in respect of the terms of the doquets; and therefore, and in respect of the prior judgment of the Court (ante, p. 276), repelled the reason of reduction founded thereon; at the same time repelling the other reasons of reduction not already disposed of, and finding the defenders entitled to expenses, in so far as not already decerned for.
The pursuer reclaimed, but
The Court adhered, finding additional expenses due.
Solicitors: A. Hutchison, S.S.C.— Inglis and Donald, W.S.—Agents.
