Scottish Court of Session Decisions

Subject_1 WRIT.

The Duke of Douglas
v.
The Creditors of Littlegill

1742, Nov. 22.
Case No. No. 11.

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In these informations the point is pretty fully argued, Whether either 117 act 1540 or 80 act 1579 made the inserting or subscribing of witnesses in deeds or contracts, signed by the parties themselves, a necessary solemnity? I have stated my opinion pretty fully in my notes on the Duke's information, and the Court seemed to that opinion,—that as the act 1540 did not require signing, (which Kilkerran at first seemed to think it did), so neither it nor the act 1579 did, in words, enjoin the inserting them where the parties themselves signed, and only enjoined inserting four witnesses where the writing was signed by notaries; but that the inserting was necessary at common law, and was supposed in both these acts, as well as in 175 act 1593. Therefore we sustained the objection. But we were divided on the question, Whether it was suppliable? Arniston thought (it was). But on my motion, it was remitted to the Ordinary to hear them how they offered to supply it, and how they offered to prove their condescendence. We had no regard to the argument, that this was a factor's account, because we had no evidence, besides these very writs, that Littlegill was factor, and even these rather imported that Inglis was. Nor did we regard the argument, that they were to be held witnesses to one another's subscription.

(The same objection was sustained, but found suppliable, in the case of Urquhart, 27th July 1753. See Note relative to that case, No. 7, voce Patronage.)