Peculiarities in the Execution of Mutual Contracts and Decrees Arbitral.
Poor Margaret Cubbison and her Husband, v. John Cubbison
Date: 3 July 1716 Case No. No. 242.
Three doubles of a writ having been made, it was found no nullity that in two of them the writer's designation was neglected, the third having been formal.
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There being mutual claims betwixt these parties, at length there was a communion set on foot betwixt John Sloan the pursuer's husband, and David Cubbison younger of Cullenoch the defender's son, which ended in an agreement; and three doubles of a contract being drawn up, (one whereof only mentions the writer's designation), and the son having communed for his father, subscribes the same, but not the father, though it runs in Cullenoch's name, only these words occur in the body of the paper, “Cullenoch's son has offered 1500 merks,” and in the end these are adjected, “David Cubbison of Cullenoch is the party here bound and subscriber.” This paper coming thereafter to be quarrelled by this pursuer and her husband, it was alleged for them,
1mo, That the body of the paper running in the name of Cullenoch, and he not subscribing it, it is null; and there being no mention of David till after designation of the witnesses, though it were pretended, that, by Cullenoch, in the body of the writ, David is meant; yet, since verba valent usu, a man's eldest son will not be understood to be designed by his father's title; so that, if by Cullenoch is understood the defender, the writ is null, as wanting his subscription; and, if we understand the defenders son, then as to him it is null also, there being no mention of him till after the witnesses are designed; so that, in effect, his subscription is without witnesses; 2do, The writ is null, as wanting the writer's designation.
Answered for the defender: 1 mo, That, though his son was not the principal party, yet he was party in the agreement, made the offer, as the agreement bears,. and thereafter subscribed and bound himself as such, in the words above rehearsed; 2do, That the writ, though subscribed three several times, yet was all but one writ; and, though the designation of the writer be not inserted in the first two subscriptions, yet it is in the last, which makes the whole writ effectual, which the Lords found in a parallel case, 21st November 1710, Hamilton of Wishaw contra; More of Cairnhill, Sect. 11. h. t.
“The Lords repelled the nullity.”
Act. Pat. Grant.Alt. Boswell.Clerk, Gibson.
Bruce, No. 8. p. 12.
