Scottish Court of Session Decisions

Subject_1 WRIT.
Subject_2 SECT. IV.

Instrumentary Witnesses.

The Lady Ormistoun and the Lord Justice Clerk her Husband for his Interest,
v.
John Hamilton of Bangour and his Tutors

Date: 21 January 1708
Case No. No. 118.

A bond not found null though it was when executed so folded up that the witnesses saw nothing above the granter's subscription.

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In the action at the instance of the Lady Ormistoun against John Hamilton of Bangour, as heir to the Lord Whitelaw her first husband, for payment of £7000 Sterling, which the defunct by his bond obliged his heirs and successors not descending of his own body, to pay to her in case she survived him, at the term of Whitsunday or Martinmas subsequent to his decease; the defender repeated a reduction and declarator of extinction of the bond upon this ground of nullity, That the witnesses insert saw not, at their subscribing, the body of the writ, or the Lady's name insert therein; so that it might have been half a sheet of blank paper; seeing non esse et non apparere paria sunt; de non apparentibus et non existentibus idem in jure est judicium; and by the 25th act, Parl. 1696, bonds blank in the receiver's name, or not filled up therewith, at least before delivery, in presence of the witnesses to the granter's subscription, are declared null. For if a holograph bond, so folded up as the witnesses thereto could see no writ above the granter's subscription were sustained, the careful provision made by acts of Parliament concerning blank writs, reduction of deeds in lecto, and fraudulent conveyances in prejudice of creditors, might easily be eluded.

Answered for the pursuer: Though in other places, as in England, a writ is not probative till the witnesses make affidavit upon the verity thereof; with us writs formally signed before witnesses are valid and receive present execution, until they be improved or reduced. Witnesses are only adhibited to ascertain the date and the verity of the parties' subscription, without being obliged to know the contents of the body of the paper; yea, oft-times that is industriously concealed from their view, as particularly in testaments. The defender cannot found any thing upon the act 1696, unless in the terms thereof he subsume and prove that the Lady's name was blank at the subscribing of the bond.

The Lords repelled the reason of reduction and extinction of the bond. Though some were of opinion that it could not be quarrelled so much upon the act of Parliament 1696, as upon this ground, That the witnesses, who saw nothing of the writ above the parties' subscription, could not be held as witnesses to a subscription; that being a relative word implying aliquid super, which they did not see.

Forbes, p. 225.