Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.
Subject_2 MONBODDO.

Sheil
v.
Crosbie

Date: 6 July 1739

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[Elch., No. 8, Writ; Kilk. No. 4, ibid.; C. Home, No. 124.]

There were two questions here; 1st, Whether a bond signed only by one notary subscribing for the party and two witnesses, was supplyable by the party's oath, That he had given orders to the notary to subscribe for him? Some of the Lords thought that such an obligation was null ipso jure, and so not supplyable by oath of party ; in the same manner as if it had wanted the subscription of the party required, by Ja. V., Parl. 7, Act 17, or the subscription and designation of the witnesses requisite by Act 1681 ; in both which cases, it was allowed that it would not be supplyable by oath. But the President, Arniston, and the majority, were of opinion that it was supplyable by the oath of the party; for they observed, that there was this difference betwixt the Act 1681 and the Act Ja. VI., Parl. 6, Act 80, by which the subscription of two notaries is introduced, that, by the first, the deed was declared null, if it wanted the solemnities there required; but, by the other, the deed was not said to be null, but only to make na faith. The requisites mentioned in Act 1681 were solemnities, which, if wanting, could not be supplied; but the subscription of two notaries was only ad majorem securitatem, because the law would not trust one, for fear of falsification; which fear is entirely removed if the party depones that he gave orders to subscribe for him. And, lastly, The constant practice has been, that such obligations have been validated, either by the oath of party, or subsequent deeds of homologation. See Hope's Minor Practicks, § 347.

N.B.—This point carried by the President's casting vote.

2d, The second question was, Whether the party could so qualify his oath, that he indeed did give order to the notary to subscribe for him, but that he imagined it was a deed of a quite different nature from what it really was? But this quality was rejected unanimously; only the party was allowed to insist in a reduction, as accords.