Writs defective in Solemnities, Whether capable of Support, so as to furnish Action?
William Dishington v. Sir William Scot
Date: 12 March 1628 Case No. No. 285.
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By the act of Parliament 1593, the name of the writer should be inserted in the body of all writs and evidents, otherwise the same are to make no faith in judgment nor outwith. Yet ordinarily before the Lords the party user of the writ is suffered to condescend upon the writer thereof, which is sustained as well as if his name had been inserted therein.
Spottiswood, p. 359.*** Lord Karnes makes the following observations on this case:
The act 179, Parl. 1593, statutes, “That all writs and evidents shall make special mention in the end thereof, before inserting the witnesses, of the name and designation of the writer, otherwise the same to make no faith in judgment or outwith.” It is not extremly clear what is intended here, whether that the omission of the writer's name and designation should make the deed ipso jure null, so as to deny action upon it, or if it should only furnish an exception to the defender; if the first, the writ is no better than blank paper, and consequently not capable of support by homologation or otherwise; if the last, the exception must resolve into this, That the deed is not a full legal proof, which of course leads the pursuer to support the deed by making a proof who was the writer, or by alleging that the defender has acknowledged the deed and homologated the same, which must bar him from making any objection to its veracity. Our Judges have interpreted the act in the last sense; and therefore, in a question upon this act, the omission of the designation of the writer was allowed to be supplied by condescending upon the same.
