Writs defective in Solemnities, Whether capable of Support, so as to furnish Action?
Hay of Arnbath v. The Duke of Gordon
Date: 7 June 1709 Case No. No. 308.
An informal writ supported as being relative to other writs, which possessed the forms requisite at the time they were execued.
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Sir Patrick Ogilvy of Boyne holding some lands as vassal to the Duke of Gordon, and having sold them to Arnbath, he agrees with the Duke, and grants bond for 1600 merks, as a year's rent of these lands for an entry, and obtains the Duke's charter to himself, and a bond from him, whereby the Duke obliges himself, that how soon Arnbath shall present a charter to him of the lands sold by Boyne to Arnbath, containing the old reddendo, he shall grant a charter of confirmation thereof in favours of Arnbath. The Duke being pursued by Arnbath upon his bond, to confirm his right; it was alleged for the Duke, his bond was null, because it wanted the date, place, and designation of the witnesses, which are inter essentialia obligationum, and by our fifth act 1681, are not now suppliable by any condescendence to be made; and all writs not designing the witnesses in the body shall be null, and make no faith in judgment, nor outwith the same. Answered, It is indeed acknowledged the bond labours under the foresaid nullities, yet it is a relative writ, expressly bearing, that Boyne had given the Duke a bond for the entry, and that the Duke had granted Boyne a charter as his vassal; and both which writs being formal in all the solemnities of date, place, and witnesses, the Duke's bond now pursued on must be reputed pars contractus, and of the same date; and to supply all defects, that this bond was of the same date with the other writs produced; and was all done and transacted in 1680, and so falls not under the act of Parliament founded on, which is not till August 1681; and that it is his Grace's subscription is simply referred to the Duke's oath, and which was sustained in two late cases, the one betwixt Thomas White, and Sir George Hamilton, and the other, the woollen manufactory of Aberdeen against James Fife, where the want of witnesses was supplied by referring the verity of the subscription to the party's oath. Replied, The Duke oppones the act of Parliament, which makes it an unsuppliable nullity, unless you refer not the single subscription, but the whole transaction to his word of honour, which privilege now, by the union, the Peers claim. The Lords found this was not in the case of the act 1681; seeing it appeared, by the context of the writs produced, it was done in the year 1680; a year before the said law was made; and therefore found it relevant for supporting the said bond, to offer to prove by the Duke's oath, that it was truly his subscription, and was signed in the year 1680, of the date of the charter and other bond produced, and so prior to the act of Parliament founded on. The Duke's prejudice was, Boyne being broke, he wholly lost the debt.
