Writs defective in Solemnities, Whether capable of Support, so as to furnish Action?
William Hamilton of Wishaw v. John Moir of Cairnhill
Date: 21 November 1710 Case No. No. 311.
A deed sustained although the first page was informally executed, as it was relative to the other page which was formal.
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An agreement betwixt William Hamilton of Wishaw, and Gavin Moir of Cairnhill, was drawn up in form of articles, written upon half a sheet of paper; these to be performed by Cairnhill upon the first page thereof, signed by both parties and witnesses, without inserting or designing the writer and witnesses; and those to be performed by Wishaw, upon the second page; at the foot whereof both parties obliged themselves to perform the above and within articles, betwixt and a certain day: Then the writer and witnesses are duly inserted and designed, and both parties and witnesses do again subscribe. Wishaw pursued John Moir, as heir to Gavin Moir his father, to perform his part of the articles.
Alleged for the defender: Process cannot be sustained against him, upon the articles to be performed by his father; because the same bear no date, nor the names and designations of writer and witnesses inserted.
Replied for the pursuer: The law requires writer and witnesses to be inserted and designed in the end of the writ; and it is so here. For this mutual agreement is but one idem corpus juris, answering to the inscription on the first page; and the articles in the last page expressly relate to the first; and long missive letters written upon several pages are obligatory, though the last page be only subscribed; and writer and witnesses are only inserted and designed under the last page or docquet of fitted accompts consisting of many pages.
Duplied for the defender: Inserting on the second page the writer and witnesses' names and designations, doth no more supply the nullity of the first side of the contract, than if it had been written On different sheets; for the articles of the first side might have been blank, and filled up at pleasure. And though accompts and missive letters have, by our uniform practice, been found not to fall under the act of Parliament; obligations and contracts are not so privileged. 2do, It required a statute, to allow decreets and securities to be written bookwise; and yet in these not only is each page subscribed, but the number of, pages and the writer and witnesss are mentioned; whereas the second side of these articles do not bear, That the witnesses subscribing were also witnesses to the first side, or that it was written of the same date, and by the same writer.
The Lords found the writ probative, and repelled the defence, in respect the last page is relative to the first.
