Scottish Court of Session Decisions

Subject_1 WRIT.
Subject_2 SECT. XI.

Writs defective in Solemnities, Whether capable of Support, so as to furnish Action?

John Sharp of Hoddam, and Charles Maxwell of Cowhill and his Lady,
v.
the Earl of Nithsdale

Date: 2 February 1710
Case No. No. 310.

The want of writer's name and designation in a bond before the act 1681, allowed to be supplied by a condescendence and proof.

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Hoddam having, as executor creditor to Dougal Maxwell of Cowhill, with the concourse of his apparent heir, pursued the present Earl of Nithsdale, for payment of 2000 merks contained in a bond granted by the deceased John Earl of Nithsdale to Dougal Maxwell in anno 1669; the defender alleged the bond was null for want of both the writer's name and designation.

Replied for the pursuers: They offered to supply the nullity, by condescending on the writer and his designation, which they might do, the bond being granted before the act of Parliament 1681. And for clearing that such a nullity in writs anterior to that statute was thus suppliable by our custom, they cited the authority of President Spottiswood, Pratt. Pag. 359. Sir George Mackenzie Obser. on the act 1593, and several decisions, as December 5th, 1665, Cunningham against Duke of Hamilton, No. 294. p. 17019. and February 22, 1676, Laird of Innes against Gordon, No. 143. p. 12056. and November 29, 1633, No. 81. p. 16861.

Duplied for the defender: Though in the case of writs anterior to the act of Parliament 1681, a supplying the designation of the writer might have been admitted; both name and designation were never allowed to be supplied. And December 5th 1707, Bell, No. 117. p. 16888. an assignation before the act 1681 was found irremediably null; for that there was but one witness inserted, though two subscribed: Now it was more favourable to indulge the making up the designation of a subscribing witness, than to supply both writer's name and designation, which is the making up a man.

Triplied for the pursuer: The decision Bell No. 117. p. 16888. comes not home to the case in hand; for the supplying a witness's name and designation, differs much from supplying the name and designation of the writer; seeing the writ might have been signed without witnesses, but not without a writer.

The Lords found the defect of the bond suppliable by the pursuer's condescending upon, and proving the writer's name and designation.

Forbes, p. 392. Fountainhall reports this case:

An appeal given in for the Earl of Nithsdale against Murray alias Maxwell of Cowhill. It was a pursuit on a bond. The defence was, It is null, wanting the writer's name. Answered, It is a bond prior to the act of Parliament 1681, and I will condescend on him yet, and prove it. Replied, By the 175th act 1593, the want of the writer's name is expressly declared a nullity; and though by interpretation that law was so far relaxed, that where a writer was undesigned in the writ, the Lords allowed the supplying it by condescending on his designation, and proving it; but it was never extended to this case, where the writ bore no writer's name at all; for there the writer cannot be known, much less designed after 40 years time. The Lords found the practice before the act of Parliament 1681, had allowed the condescending on the writer, as well as on his designation, till it was obviated and discharged by that act; and therefore sustained the bond, they proving who was the writer, and repelled the nullity. Against which my Lord Nithsdale protested for remeid of law.

Fountainhall, v. 2. p. 573.