Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
William Hamilton of Wishaw v. Gavin Moir, Cairnhill's Heir
Date: 23 November 1710
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William Hamilton of Wishaw and Gavin Moir of Cairnhill being both creditors on the estate of Cleland of Faskine, they enter into articles of agreement containing mutual prestations on either party, which are drawn up upon a half-sheet of paper, Cairnhill's part being wrote on the first page of that paper, and Wishaw's part on the other side of the page, on the back of it. Wishaw having suffered it to lie over near 25 years, and Cairnhill being dead, he pursues his heir for implement; who objects that the articles pursued on are null as to him, in so far as his father's part of the articles contained in the first page wants the designation of the writer's name and witnesses: and, though Wishaw's part on the other side bears them, yet that can never integrate the defect in the first part, they being quite distinct writs.
Answered,—If the articles had been writ on several leaves of paper, there might have been some pretence for this nullity; but, they being both written upon one leaf, it is idem corpus juris et unicus contextus. And the first page is signed by both parties and the witnesses: but their designation, as needless there, is referred to the total finishing of the articles, and there are duly designed and insert. And both parties and the same witnesses do again subscribe the second page: so that the two makes but one writ, even as fitted accounts contained in several pages are valid and probative writs, though not subscribed till the end and docket; and so, in charters and securities, written bookways, by the 15th Act 1696; and the same holds in missive letters containing more pages than one. And so the Act of Parliament, 1681, requiring the writer and witnesses to be designed is in terminis fulfilled, seeing thir two pages cannot be separated nor divided, as might have been if they had been in two distinct half-sheets of paper.
Replied,—The second side is no more the same with the first than different sheets of paper are; and to do otherwise opens a door to fraud. And, as to missives and fitted accounts, they have a privilege for the benefit of commerce and facilitating trade, which mutual contracts have not.
The Lords repelled the nullity, and found the articles binding and obligatory; the second page relating to the first per expressum.
