Scottish Court of Session Decisions

Subject_1 WRIT.
Subject_2 SECT. V.

What Designation sufficient?

Mr Alexander Orr, Son to the deceased Mr. Alexander Orr, Minister of the Gospel at St. Quivox,
v.
John Wallace of Camsescan

Date: 14 February 1712
Case No. No. 153.

A bond whereby one as principal, and another as cautioner, bound themselves “conjunctly and severally,” was sus-sustained against the cautioner, although the bond written by the principal debtor concluded thus, “In witness whereof, I have written and subscribed these presents.”

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A bond was granted to the deceased Mr. Alexander Orr, in the terms following, “I Mr. John Hannay, Minister at Craigie, grants me to have borrowed and received from Mr. Alexander Orr, the sum of £100 Scots, which I as principal, and John Wallace of Camsescan as cautioner, bind and oblige us conjunctly and severally,” &c. which bond, after the clauses of relief and registration, concludes thus, “In witness whereof, I have written and subscribed these presents at Air the thirty one day of May, one thousand seven hundred and five years, before these witnesses, Robert Wallace of Cairnhill, and James Ferguson Doctor of the grammar school at Ayr;” and the bond is signed by the principal and cautioner, and the foresaid two witnesses. Mr. Alexander Orr, as having right to this bond from his father, pursued John Wallace, now of Camsescan, as representing his father the cautioner, for payment, who alleged the bond to be null, in so far as concerns the cautioner; because it doth not bear, that the witnesses inserted are witnesses to his subscription, but only to the subscription of Mr. Hannay the principal debtor; for though the plural number may be made use of to demonstrate a single person, as more magnatum, “We” is put for “I;” yet it was never pretended, that either in good grammar or sense, “I” was ever used for “We;” and therefore the rule, Et de me solo, &c. takes no place here.

The Lords repelled the nullity, and sustained the bond; for these words, “We bind and oblige us,” in the obligatory part of the bond, might well connect with the words, “Before these witnesses;” and both writer and witnesses being designed, though the words, “And have subscribed,” had been left out, the bond would have been valid, as if it had run thus, “I Mr. Hannay, and with me Camsescan, bind and oblige us to pay, &c., in witness whereof, written by the said Mr. John Hannay, before these witnesses.” Again, though the words “and subscribed” may at first view seem to relate to “I have written;” yet they may be read disjointly, so as the words “and subscribed” may relate to the whole tenor of the writ; that is, I as principal, and with me Camsescan, have subscribed. Besides, in every ambiguous interpretation, that sense is to be followed quo actus valeat; and ita comparatum est ut conjuncta pro disjunctis, et disjuncta pro conjunctis accipiantur, L. 53. D. De Verb. Sig. for supporting writs.

Forbes, p. 587.