Writs defective in Solemnities, Whether capable of Support, so as to furnish Action?
Beatie v. Lambie
Date: 26 December 1695 Case No. No. 303.
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The act 5th, Parl. 1681, which declares, That writs shall be null unless the witnesses be designed, goes upon the supposition, that there must be two witnesses, and as the want of the designation of the witnesses is not suppliable by a condescendence, far less will a proof be admitted that there were de facto witnesses, when none are named in the deed. But as these nullities amount not to a denegatio actionis, but resolve into an exception; the act does not say, that the subscriber of the writ may not be barred from his exception by homologation; and if by homologation, which is but an implied acknowledgment of the verity of the deed, multo magis by a direct acknowledgment upon oath; and therefore a contract null upon this act, as being subscribed only by one witness, was found suppliable by referring the verity of the subscription to the party's oath.
