Writs defective in Solemnities, Whether capable of Support, so as to furnish Action?
Henderson v. Balfour
1716.
July. Case No. No. 316.
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Four persons signed an order or commission to a shipmaster in Leith, for building a ship of 50 tons burden, to be delivered to them for their respective interests. The ship was accordingly built, and every one paid his moiety except Balfour, whose defence was, That the order or commission was null by the act 1681, as wanting witnesses. Answered, 1mo, The defender, does not pretend to deny his subscription, and that is sufficient to bind him to all the terms and conditions expressed in the writ; 2do, The defender is prevented personali exceptione from pleading the nullity, who saw the pursuer laying out his stock and labour upon his account in pursuance of the commission, after which it would argue the greatest turpitude if he should refuse to perform his part of the bargain. The Lords found the defender liable. See Appendix.
