Objection to a holograph bond, consisting of three pages, that it was only signed on the last page, repelled.
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The pursuer brought a process against her brother for payment of an heritable bond granted to her by her father. Objected, The bond is null, being written on three pages, and only the last signed; whereas every page, by the 15th act, 6th Sess. K. William, ought to have been signed. Answered: This case does not fall under the act; 1mo, Because it is holograph of the granter; so that here the reason of the law ceases, as there could be no danger in foisting in additional clauses; the preventing which was the design of the law; 2do, Because the act plainly regards writings written upon several sheets or pieces of paper joined together; 3tio, There is no statutory nullity introduced; it does indeed give the aid of the law to writings, written and subscribed in the manner there directed; but does by no means declare papers, written and subscribed after a different manner, void and null; no, it leaves the matter where it was, scil. to be determined by the rules of law which would have taken place as if no such act had been made.
Replied: The statute is plain, and the nullity falls expressly under it; for, by it, any person may choose whether he will have his security written sheet or book-ways; provided, if they be written book-ways, every page be marked by their number, and signed, as the margins were formerly when battered; and the last page make mention how many pages are therein contained: And these writs, marked and signed, as said is, are declared to be as valid and formal as if written on several sheets battered and signed on the margin. Now, in the present case, the writ founded on is neither numbered on the pages, nor makes any mention in the last page of how many it consists, which is directly without the provision of the statute; and its being holograph will not supply the defect, seeing, according to that argument, a holograph writ without any subscription is valid, which would be too great a stretch. And as to the reason given for the law, viz. to prevent foisting in of sheets and clauses, it was answered, That it might have consisted of more sheets than one, for ought appears, which there is always ground to suspect where a writ wants the essentials of the law.
Duplied: The act plainly regards only writings that are composed of different sheets; and the provisions in it are nowise calculated for a holograph writing, consisting of a single sheet; and that it might have consisted of more, is plainly impossible from ocular inspection, and the natural and regular succession of every clause.
The Lords, in respect that not only the writ is holograph, but that it appears all written unico contextu, and that there is no suspicion of any sort against the deed, repelled the objection.
