Scottish Court of Session Decisions

Subject_1 COMPETENT.
Subject_2 SECT. V.

Whether Reduction be requisite of Decrees Arbitral; - Of Legal Instruments; - Of Inhibitions; - Of a Deed executed by a Woman vestita viro; - Of a Decree of Preference in a Multiplepoinding.

Earl of Crawford
v.
Ogilvie

1583. February.
Case No. No 22.

A party producing an instrument of requisition, and the other party offering to prove directly the contrary of what was therein inserted, and that by another instrument under the same notary's hand, the Lords refused to admit the same, and only reserved action of improbation.

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The Earl of Crawford warned Ogilvie of Beish to hear and see certain lands of, &c. to be lawfully redeemed, and consigned the soume of merks, together with ane letter of tack after the redemption of nineteen years, conform to the bond of reversion. The silver and the tack being produced before the Lords, it was alleged, That the tack was not the first tack that was consigned, but newly made and forged, and sua the first tack being uplifted after the consignation, made the redemption to be of no value, as likeways give the silver had been tane up again. It was answered, That albeit the said tack had been tane up again, now the same being presented before the Lords, licet non idem fuit numero aut in judicio, tamen idem specie; and so the party being no manner of way prejudged be that deed, the redemption ought to be found lawful. The Lords fand be interloquitor, that the production of the tack before the Lords albeit it was not idem numero was sufficient. The like being practised of before anent the procuratorie betwixt Mr Hepburn and the L. of Balbut. See Redemption.

In the said action of redemption intented be the Earl of Crawford against Ogilvie, the consignation of the soume and tack being quarrelled, the Earl of Crawford produced ane instrument, subscribed be two notars, that he offered the silver and the tacks conform to the reversion to the party, providing he would renounce, and grant the lands to be lawfully redeemed. It was alleged be Ogilvie on the other part, that he offered him to prove, be authentic instruments under the subscription of the same notars, that he offered to take the silver and to renounce all right and title that he had to the lands, conform to the reversion in all points, et sic fuerunt instrumenta in vicem derogatoria. It was found be the Lords, that they wald not admit any probation be another instrument that was derogatory to the first, but gif they wald improve, they wald hear the party. Vide Bald. in l. Scripturæ de fide instrumentorum, ubi tractatur de constitu: scripturarum.

Fol. Dic. v. 1. p. 173. Colvil, MS. p. 253.