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Harper v Jaffrey. [1630] Mor 4431 (15 February 1630)
URL: http://www.bailii.org/scot/cases/ScotCS/1630/Mor1104431-003.html Cite as:
[1630] Mor 4431
Foreign Writs, formal according to the Law of the place, afford action in Scotland, as obligatory jure gentium.
Subject_3 SECT. I.
Bonds without witnesses.
Harper v. Jaffrey
Date: 15 February 1630 Case No. No 3.
Found as above.
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Harper, as assignee by a Frenchman in Rowen, to a debt owing by Jaffrey to him, conform to his bond, pursues therefor, the bond being made in France, and done in Rowen, neither designing the writer thereof, and wanting witnesses, and so the defender alleging, That it could not furnish action against him, specially seeing he denied the subscription to be his hand writ.—The pursuer replying, That he offered him to prove that it was the custom allowed by the law of Normandy, where the bond was made, that such bonds were effectual against the maker, albeit both wanting witnesses and wanting the writer's name; and where he denied the subscription, he abode by the same, as subscribed truly, so that his denial ought not to be respected, except he would improve the same; and the defender alleged, That the pursuer ought to approve the bond to be the defender's hand writ; seeing the means of his improbation was taken away by the want of witnesses and writer.——The Lords found the reply upon the custom of Normandy relevant; which being proven, sustained the bond, and found no necessity to the pursuer to approve the bond, but that it was good, except the defender should improve the same, and had no respect to his denial of the subscription; and the Lords would not burden the pursuer, that this custom was observed in cases where the debtor denied his subscription.
Act. Nicolson & Lawtie.Alt. Burnet.Clerk, Gibson.
Fol. Dic. v. 1. p. 316. Durie, p. 493.
