A bond was found null, because one of the witnesses was designed “A. B. inserter of the sum,” without any other precise distinction.
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In a competition for mails and duties of the lands of Middlemaswalls, betwixt the said parties, Halden objected, That the bond which was the ground of Caver's adjudication, was null, one of the witnesses not being designed, and not suppliable after the act 1681, being dated in anno 1683.
Answered for Cavers, That the witnesses being thus insert in the bond, “Gilbert Elliot inserter of the sum, and Archibald Nielson servitor to the Laird of Cavers” and they both being servants to Cavers at the time, they were sufficiently deisgned, the above designation being applicable to both; so that Cavers did not impugn the act of Parliament, but only accommodate the words specially inserted to answer the design of the act, since there was really a designation in the writ. And this differs from cases preceding the act, where, when there was no designation at all, the Lords used to allow a condescendence and proof; but here there is a designation, and the question only, how it shall be applied? Neither is it incongruous, where two are set down, to apply the predicate (which here is the word servitor) though in the singular, to both; 2do, The letter (s) has only been an omission; so that it is not so much the supplying of an omitted condescension, as supplying the vitium scriptoris; or not so much the condescending upon the designation not to be found in the writ, as helping a literal escape.
Replied for Lanerk, That in the above clause Archibald Neilson is only designed, and Gilbert Elliot hath no designation, for “inserter of the sum” designs no person; and to apply the words “servitor to the Laird of Cavers” to Gilbert Elliot, is a plain force, and may be used almost in every case to elide the act of Parliament. And as to the application of a singular predicate to plural subjects, as that way of expression was rarely used, and only by poets, among the Romans, so it was never received in our language; nay, even in Latin it was never used in expressing the securities of men's rights, these not being to be shaken loose upon grammatical or rhetorical turns, much less upon poetical flights of expression. To the second, replied, that if vitium scriptoris could be held for an excuse, it would go by much too far; for though it may be sometimes sustained, where from other clauses in the same writ, it appears that the error is merely an escape in writing, but substantially there is no error; yet it is not so here, where there is nothing in the bond to persuade that Gilbert Elliot was Cavers's servant; but rather the contrary; for if he was, the easy designation had not been omitted. One letter might perhaps have done it, without repeating the whole designation, and yet it falls out in this case, that a single letter may have that import as to make the bond either stand or fall.
The Lords found, that the witnesses were not sufficiently designed; and therefore that the bond was null.
For Lanerk, Dalserf.Alt. Sir Wal. Pringle.Clerk, Gibson.
Bruce, p. 1.
