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Scottish Court of Session Decisions >>
Wardlaw v Earl Marshall. [1610] Mor 7798 (25 January 1610)
URL: http://www.bailii.org/scot/cases/ScotCS/1610/Mor1907798-022.html
Not competent to object against a Party's title, without a Legal Interest. - What understood to be a Legal Interest.
Wardlaw v. Earl Marshall
Date: 25 January 1610 Case No. No 22.
In a pursuit upon a bond for a considerable sum, at the instance of an assignee, it was found competent for the debtor to allege, that the assignation was null, being subscribed by only one notary.
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George Wardlaw, assignee constitute by umquhile Mr John Wardlaw, his brother, to an obligation of eighteen hundred merks, made to the said Mr John by the Earl Marshall, charged the said Earl to pay the said sum, who sustained, alleging the assignation was null, as it contained eighteen hundred merks, and neither being subscribed by the party who could write, nor by two notaries. It was answered, That the exception was not competent to the pursuer, because he had interest to quarrel the assignation, seeing the heir quarrelled it. It was answered, That he had undoubted interest to exclude the pursuer if he wanted a sufficient title. Next, it was answered by the assignee, That his brother being upon his death-bed, and so sick that he could not write, he had caused a notary subscribe for him; and, as a notary may subscribe a testament of the hail goods of a sick man, so may he make an assignation of a part, which must avail tanquam legatum. It was answered, That a notary might make a testament, because the act of Parliament permitted that; but there was no sick warrant for the making an assignation of consequence by a notary. In respect whereof, the Lords found the said assignation null of the law.
