Mr William Colvill v. The Executors of the Lord Colvill his Brother
Date: 15 July 1664 Case No. No. 106.
An old writ wanting the designations of witnesses not sustained without other adminicles to instruct it.
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Mr. William Colvill pursues the executors of the Lord Colvill his brother, for payment of 2000 merks of portion, contracted to him by his brother, in case his brother wanted heirs male. It was alleged, for the defender, absolvitor, because the contract is null, there being no witnesses designed therein, to the Lord Colvill's subscription, but only two witnesses expressly subscribing as witnesses to Mr. William Colvill's subscription, and other two undesigned, subscribing as witnesses, but not relating to any particular subscription. The pursuer answered, that he offered to design the other two witnesses, which was always found sufficient to take away the nullity. It was answered for the defender, that albeit the designation were sufficient in recenti, where the witnesses were on life, because use may be made of these witnesses, to improve the writ, this could not hold in re antiqua where both witnesses were dead.
The Lords formerly found, that the designation was not sufficient, without instructing the writ by witnesses, or adminicles, for which effect, the pursuer produced several writs, subscribed by the Lord Colvill, and by one of the two witnesses, that comparatione literarum might instruct the truth of their subscriptions; and alleged further, that this being a mutual contract, and unquestionably subscribed by the one contracter, and being of that nature that he, whose subscription was unquestionable, did engage for a more onerous cause than the other;
The Lords compared the hand writs, and found them both alike, sustained the writ; the pursuer making faith that it was truly subscribed by both parties.
