(1737) 1 Paton 197
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Found that an attainder was not vitiated, although in the act the person was described by the name of Wakinshaw, instead of Walkinshaw, and as being “of Scotstoun,” (the estate of his father,) although, at the time, he was not infeft in any lands.
[Elchies, voce Falsa Demonstratio, No. 1.—C. Home, No. 30, p. 56.—Mor. Dict. p. 4723.]
John Walkinshaw, son of William Walkinshaw of Scotstoun, was partner in a mercantile house in Glasgow. Having been engaged in the rebellion, he was, by virtue of an act of Parliament of the 1st
In 1733 he obtained the royal pardon; and a question coming afterwards to depend between him and his former partners, it was argued by the latter that the copartnery had ceased at the date of the attainder, which necessarily had the effect of disabling him from continuing a partner. The Lord Ordinary found, “That upon John Walkinshaw's going into the rebellion, and from the time ascertained by the act of attainder, the society and company did cease and was dissolved as to the said John Walkinshaw, or any interest that could arise to him, or any other in his right, after that time.”
Walkinshaw thereafter varied his plea, and maintained that the act of attainder founded upon could not affect him, in as much as the person attainted by it was John Wakinshaw of Scotstoun; whereas his name was Walkinshaw; and his proper designation, not “of Scotstoun,” but “of Glasgow, merchant.”
To this it was answered, that there is no such material difference between the two names as can amount to a misnomer; and he having, in consequence of the death of his father, become entitled to the estate of Scotstoun, he was properly designed by that addition.
The Lord Ordinary (10th July 1736) “found that there was no misnomer of the said act with respect to the name and designation of John Walkinshaw of Scotstoun, and therefore repelled the allegeance founded thereon.”
Entered Feb. 6, 1737.
The Court, (July 8,) adhered.
The appeal was brought from these interlocutors of the 10th June and 8th July 1736.
Pleaded for the Appellant:—The two names are entirely different. In point of fact, there are several distinct families of each name in Scotland; and there are many instances in which the change or omission of a single letter would completely alter the name.
Neither was the addition of Scotstoun a proper addition to denote the appellant. He was not infeft in any lands, and had not right either to that estate or to any other. But infeftments alone can give a right and title to such additions. His proper designation was “Merchant in Glasgow.”
Pleaded for the Respondents:—There is a great difference between a material misnomer, where the description of the person outlawed evidently disagrees with the true character and description of the person against whom it is made use of, and an accidental mistake in spelling the name or surname, or in the addition of the person attainted, concerning whom there remains no uncertainty. In the first case, if the name, surname, or addition does not truly belong to the person against whom it is used, but may properly be applied to a different person, (which might be the case by the mere change or omission of a single letter, as in the names of Wight and Wright,) the attainder might not be effectual. But, in the latter case, where name, surname, and addition all truly belong to the party, a mere inaccuracy in writing or spelling the name can make no material error in the attainder; and, in the present case, the difference in the spellling could not possibly give occasion to any uncertainty, as the names are the same, and are always pronounced alike.
With regard to the addition, as the true
Judgment, June 9, 1737.
After hearing counsel, “it is ordered and adjudged, &c. that the appeal be dismissed, and that the said interlocutors complained of be, and the same are hereby affirmed.”
Counsel: For Appellant,
For Respondents, Duncan Forbes, J. Strange.