Of facts inferring knowledge of, and consent to the right challenged. Effect of consent where the right is not known. Effect of legal steps passing of course. Effect of minority. Effect of payment.
Sinclair of Freswick v. Sir James Sinclair of Dumbeth
Date: 17 February 1715 Case No. No 36.
A bond wanting statutable solemnities, was found capable of homologation, by partial payments.
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In the action at the instance of Sinclair of Freswick, against Sir James Sinclair, for payment of a debt owing to David Sinclair, from whom Freswick had right, the defender pleaded compensation for 500 merks, as yet resting of a bond of 1000 merks granted by the said David Sinclair to him.
Answered for the pursuer; That the bond founded on was null by act 5th, Parliament 1681, one of the witnesses not being designed.
Replied for the defender; That David Sinclair had homologated the bond, by making payment of the one half of the principal sum, and all the annualrents, and raising a suspension of the bond, in so far as concerned the other half; where his reasons of suspension were the payments above-mentioned, and an offer to prove compensation or payment of the other half by Sir James's oath.
Duplied for the pursuer; That when deeds are null ipso jure, and by positive statute, there can be no place for homologation; which can only take place where the deed is not null ipso jure but only reducible and quarrellable; such as a deed on death-bed, or a deed after publication of an inhibition, &c. But in the present case and others like it, it is even pars judicis not to sustain process upon such a writ, though no objection were made by the party; and the form of the writs being juris publici, private parties cannot by an express, far less by a tacit consent, make that a formal deed, which law has declared informal and null.
The Lords sustained the acts of homologation by payment of the annualrents, and the half of the principal sum, and by raising a suspension for the rest, and founding upon reasons for further payment, to support the bond as a valid and probative writ.
Act. Ro. Dundas.Alt. Dun. Forbes.Clerk, Alexander.
Bruce, v. 1. No 71. p. 86.
