Alexander M'Ildownie v. John Graham of Dougalstoun
Date: 1 July 1712 Case No. No. 169.
In conformity with No. 157. p. 16925.
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Dougalstoun alleged, that the bond which is the foundation of M'Ildownie's process against him is null, 1mo, As wanting a date; 2do, For that it doth not bear to be subscribed before witnesses, but only written before witnesses: The Lords repelled both these nullities, in respect it was answered for the pursuer; 1mo, The bond is payable at three several terms in the years of God therein-mentioned, which sufficiently supplies the want of a date at the end. So 15th January 1662, Grant against Grant, No. 176. p. 11497. the Lords found a bond not null for wanting a date as to the day, month, and year, seeing it bore annualrent from a certain time in such a year last past, which supplied the date as to the year; 2do, It is frivolous to object, that the bond bears only to be written before witnesses, and not that it was subscribed before them, seeing the bond bears to be subscribed by notaries for the granter, who could not write, before four witnesses. And it can be no just ground of exception against this bond, that the words, “I have subscribed these presents,” are wanting, seeing the granter could not subscribe.
Forbes, p. 605.*** Fountainhall reports this case:
One Manasses Lyle being debtor to Mackildownie in 350 merks by bond, and having disponed his effects to Dougaldston, and a competition arising, it was objected against Mackildownie's bond, that it is null, as wanting a date. Answered, It is very true, being drawn by an ignorant country fellow; yet it was sufficiently supplied by expressing the year of God in the term of payment, “at Martinmas 1679;” so it has been dated about Whitsunday 1679; and this has been sustained by the Lords to support the want of a date, 15th January 1662, Grant against Grant, No. 176. p. 1. 1497. Answered, The date is de essentiali of a writ, and cannot be made up by illatives and equipollences. The Lords repelled thenullity, and sustained the bond, being in re antiqua.
