Kilpatrick of Closeburn v. Ferguson of Craigdarroch
Date: 21 November 1704 Case No. No 151.
Found, that an apparent heir might propone the defence, that a bond pursued on was null, without incurring the passive title.
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My Lord Philiphaugh reported Kilpatrick of Closeburn contra Ferguson of Craigdarroch. These parties having borrowed 2800 merks from Mr John Richardson, by bond, in 1683, and Kilpatrick having paid the debt, he pursues Craigdarroch as representing his father, the other debtor in the bond, for repaying the equal half. He alleged, Absolvitor from the debt; for the bond was null by the 5th act, Parl. 1681, wanting the writer's name. Answered, 1mo, He cannot propone this, and deny the passive titles. Replied, If it were an allegeance of payment, compensation, or the like, it would certainly import an acknowledgment of the passive titles; but where a nullity of law is founded on which arises from a plain act of Parliament, and is instantly verified by inspection of the writ produced, an apparent heir may propone that, and not homologate nor acknowledge the passive titles, and has been so decided, 10th December 1674, Auchintoul contra Innes, No 141. p. 12055; and 20th January 1675, Telfer, No 60. p. 9711; and though the Lords have demurred, if prescription can be proponed, denying the passive titles, the reason of that was, because it may be elided by a reply of interruption, which requires a course of probation, and puts the pursuer to the delay and expense of an act; but here it is nullitas juris, resulting from the writ, and all instantly verified. The Lords found Craigdarroch might propone it, without acknowledging the passive titles. Then he insisting on the nullity of the bond, for want of the writer's name, it was alleged, The same was sufficiently supplied, because of the several obligants and witnesses all signing, and that the filler up of the witnesses' names and date was mentioned and designed in the bond, and he could not, on his oath of calumny, deny but William Alves was the writer, who was ready to depone; and the design of the act was only to find out the writer, which is abundantly clear in this case. Answered, That the number of witnesses, how great soever, did not supply this nullity, which is a distinct and separate point; and the foresaid act of Parliament declares, where it is omitted, that it is unsuppliable; and to make it up, were to prove debts by the uncertain testimony of witnesses, or the fallacious conjecture of comparing hand-writs; and the condescending now on William Alves as the writer, is not sufficient; nor does offering to seek their oath of calumny on it satisfy the act of Parliament, which is most positive, and expressly calculated to obviate and debar all such condescendences now for supplying that defect. The Lords thought it, in a court of conscience, a good and sufficient bond; but, as our law stood, it was null; though it was both unmannerly and unneighbourly to propone this nullity, yet being proponed, the Lords behoved to sustain it, though hard, quia ita lex scripta est: And if this were dispensed with, then a great mean of improbation of writs as false would be cut off, viz. the writer of the body of the writ, that being the main reason of inserting his name: Some thought if the debtor Craigdarroch, who had subscribed it, had been in life, his oath might have supplied; but here it was his son, who knew nothing of it, being then an infant. Others said his oath could not have been required, unless the debt had been also referred to his oath. Then it was insinuated, That William Alves should be liable ex delicto vel quasi, for omitting to insert his own name as writer, especially the debt having come into his person, and he having assigned it with warrandice to Closeburn; but this was not debated at this time. See Writ.
Fol. Dic. v. 2. p. 187. Fountainhall, v. 2. p. 240.
