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Acts and Deeds are presumed to have been done according to what is common and customary.
Andrew Paterson, Litster in Dryburgh, v. James Wilkison, Clerk of the Regality, of Melrose
Date: 25 June 1724 Case No. No 302.
Use of subscribing by initials presumed.
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Andrew Paterson having raised reduction of a bond granted in the year 1658, by Andrew Riddle, as principal, and Patrick Riddle, his brother, as cautioner, to Andrew Bulman, for 300 merks, and of certain diligences and decreets that had followed on the bond, which now stood in the person of the defender; it was pleaded for the pursuer, That the bond quoad Patrick the cautioner was null and improbative, as not being duly subscribed by him; there appearing only two letters, which are pretended to be the initial letters of his name.
It was answered for the defender; That bonds subscribed by initial letters are not null, but are sustained upon a proof that the party was in use to sign in that manner; as was found, 16th November 1667, Coulterallers against Chapman, voce Writ; and 22d February 1662, Brown against Johnston, Ibidem; where a party's mark was sustained, the party proving that he was in use to subscribe by that mark: And since this bond has stood unquarrelled for more than 60 years, the objection cannot be received post tantum temporis intervallum, when probably the persons who could prove Patrick's use of subscribing are dead; 2do, There was, very soon after the date of this bond, diligence used upon it by inhibition, in the year 1663; there was a decreet of reduction against this pursuer's author in the 1688, and other diligences were used upon the bond in the 1690 and 1693; and at last a decreet of reduction in the year 1720, against the pursuer himself, was obtained on the said inhibition upon this bond, during which processes, no objection was made by the granter of the bond, his heirs, or any deriving right from him: All which ought, in re tam antiqua, to presume that he was in use to subscribe by initials.
Replied for the pursuer; That there was not in these processes so fair an opportunity of quarrelling the bond, since only an extract was produced.
1724. January 21.—“On report of the Lord Grange, the Lords found it presumed, that Patrick Riddle was in use to subscribe by initial letters, now after so long time since granting of the bond quarrelled, and so many diligences following thereon; and, therefore, repelled the reasons of reduction.”
The pursuer reclaimed by petition, wherein he represented, That it appeared by an heritable bond, granted to his author by the said Patrick Riddle, in the year 1667, for 1000 merks, that Patrick did subscribe by notaries; from which he contended, That the presumption of his signing by initial letters was elided; for, quod fieri debet, facile præsumitur; and as the rules of subscribing, in cases of importance, when parties cannot write, are settled by act of Parliament, so when any evidence is brought that a person who could not write had subscribed by notaries, the presumption was stronger that he was in use to do so, than that he subscribed by initial letters: And, further, he offered to prove, that Riddle was in use to sign by notaries.
The defender answered; That several years intervened betwixt the dates of the two bonds; and the reason of using notaries to the last must have been because the sum in it was considerable, and so the creditor was more anxious about the manner of signing. The act of Parliament concerning Subscription by Notaries, only takes place where the party cannot write at all; but a subscription being only an underwriting, whether that be by the initial letters, or the name at length, is not distinguished.
Replied for the pursuer; That the act 21st, Parliament 1672, sufficiently explains what a subscription is, when it statutes, that all others than Nobility or Bishops shall subscribe by their Christian names, or the initial letters thereof, with their surnames.
The Lords found the presumption, that Riddle was in use to subscribe by two initial letters, was not elided by production of the other bond; but allowed the petitioner to prove that Riddle was in use to subscribe by notaries, at or about the time of granting the bond to Bulman.
Act. Ja. Boswell & H. Dalrymple sen.Alt. Ja. Graham sen. & Ja. Colvill.Clerk, Justice.
Fol, Dic. v. 2. p. 129. Edgar, p. 57.
