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Scottish Court of Session Decisions >>
Hay v Hume of Blackburn. [1662] Mor 11607 (24 June 1662)
URL: http://www.bailii.org/scot/cases/ScotCS/1662/Mor2711607-271.html Cite as:
[1662] Mor 11607
Extract of a bond registered, found not to instruct or prove against: those who contented not.
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Robert Hay, tailor, pursues Hume of Blackburn, as representing his father upon all the passive titles, to pay a debt of his father's. The defender alleged, Absolvitor, because there was nothing produced to instruct the debt, but an extract out of the register, bearing the bond to have been registered by his father's consent; whereas it is notour and acknowledged by the summons, that his father was dead long before the date of the registration. The pursuer answered, The extract is sufficient to instruct the verity of the bond, being in a public register of the session; albeit the defunct was dead the time of the registration, which might have been the creditors' mistake, and cannot prejudge them, seeing vita præsumitur, especially now, when through the loss of the registers, principal writs cannot be gotten. The defender opponed his defence, and the decisions of the Lords, lately, in the like case, concerning the Earl of Errol, because nothing can instruct against any man, but either a writ subscribed by him, or the sentence of a judge upon citation or consent, and this is neither.
The Lords refused the extract simply, but ordained the pursuer to condescend upon adminicles for instructing thereof, either by writ or witnesses, who saw the bond, &c.
