Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by LORD KILKERRAN, ADVOCATE.

John Corsbie
v.
James Shiell

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For the facts of this case, vide C. Home's Report, (C. Home, p. 200 ; Mor. p. 16842.) Lord Kilkerran's note is as follows :—

“It was suggested by Elchies, upon moving the bill, that in this case there was no writ at all necessary; for a verbal agreement would have had the same effect. But if it is put upon this, the oath does not prove accession to this agreement. It proves no more but that he agreed the lands should be sold to be applied to payment of his debt, but proves no accession to any agreement for quitting any of the subject of his payment.”

“July 4, 1739. At advising the petition and answers, it was observed by the Ordinary, that the question did not occur here, whether one's presence at a meeting of creditors, and not opposing the general measures, implied an acquiescence, because the party was not agreed that there was any such meeting; the charger affirming that he was called off the street to sign, as others were, one after another, and that there was no general meeting. He further observed, that he laid no weight upon the quality of the charger's oath ; but that he had put his interlocutor upon the abstract point, that a deed null for want of solemnities required by law, could not be supplied, so as to induce the literarum obligatio, by the party's oath, though the oath might prove the debt.

Elchies observed, that deeds labouring under such defects had been found capable of homologation, and therefore might be supplied by oath.

“Arniston observed, that that argument would carry the matter too far, if these precedents were to be the rule ; for he believed it may have been found, that where a man's subscription was not legally attested by witnesses, homologation might supply the deed, but declared he was not of the opinion of those decisions ; but he thought in the case, where it was not of a party's subscription not legally attested, the deed might be homologated, and therefore was in this case suppliable by the party's oath, that he gave warrant to one notar to sign, for that the two notars are only required, ad majorem evidentiam, of the party's consent, and not in way of solemnity.

“Upon the vote, the Lords were equally divided, and by the President's casting vote it carried to alter and sustain the deed. Having talked of this matter afterwards with Arniston, I found him of opinion, that before the year 1681, even when a party's subscription was not legally attested, the defect might have been supplied by the party's oath, that he signed the deed, but that the same was not suppliable by the party's oath since the act 1681. Now, the signing by notars being no part of the act 1681, he considered all defects in such deeds to be suppliable.

“N. B. I have often observed the President favour the opinion, that, in general, where a nullity is objected to a writ, the writ might be supported by the party's oath ; but in that I always differed from him, and I dare say it was upon that general ground that he gave his casting vote in this case ; for that distinction of its being a notar's subscription was not so fully opened by Arniston, who moved it, as it is here noted, as to have been adverted to: it was a small case, and the reasoning very short.”