Writs defective in Solemnities, Whether capable of Support, so as to furnish Action?
Duke of Douglas v. the Other Creditors of Littleoil
Date: 23 November 1742 Case No. No. 322.
If inserting witnesses' names was necessary before the act 1681, and if the omission of the designation of the writer, and names of the witnesses, is suppliable? - Deed subscribed by more than two parties.
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It was objected to an adjudication produced by the Duke in the ranking of the creditors of Littlegil, that the decree of constitution on which the same proceeded had been obtained in absence, for the sums contained in two accounts, fitted between the Marquis of Douglas and his curators on the one part, and Littlegil on the other, in the year 1663, the docquets whereof, were null, in respect they did not design the writer; and that farther, though two witnesses were subscribing, yet neither of them were inserted in the body of the writ, which last defect the creditors contended was not suppliable.
In answer to this, it was insisted on, and with some shew of plausibility, that there was no statute before the year 1681, requiring witnesses' names to be inserted in the body of the writ subscribed by the party; For that all that is required by the act 1540 is the subscription of the party and witnesses, without defining whether the subscription of the witnesses was enough, or if they were to be inserted; and though the act 1579 requires the witnesses to be designed in the body of the writ, yet that is only in the case where the writ is signed by notaries; but by that very same statute, where the writ is signed by the party, no more is required but the subscription of the party and witnesses; and a decision was appealed to, July 3, 1634, Home contra Home, No. 104. p. 16881. where an objection to a bond, subscribed by a party and two witnesses, that the names of the witnesses were not inserted in the deed, was repelled, and the bond sustained, seeing there were two witnesses subscribing, which, as the decision bears, the Lords found as good as if their names had been inserted; and upon which the Lord Dury observes, that the ratio decidendi was that the statute 1579, requiring that the witnesses should be inserted and designed, referred more directly to writs subscribed by notaries than to writs subscribed by the party; and it was said, that wherever it had been found, that a deed of date before 1681, signed by the party and witnesses, was null for not having the witnesses inserted in the body of the writ, as in the decision observed by Forbes, Dec. 5, 1707, Bell contra Campbel, No. 117. p. 16888. it had proceeded from an erroneous admission of the party on the import of the old statutes.
But in all this there was nothing solid; for the inserting the witnesses in the body of the writ was required de jure communi, antecedent to any of our statutes, as we learn from Craig, and even from the books of the Majesty. And indeed no more was requisite, till, by the statute 1540, the subscription of the witnesses was required, and which supposes their being inserted; for no otherwise could a party be said to subscribe before the witnesses, than when he in the deed acknowledged it; and if more was necessary, this is put beyond doubt by the act 1593, requiring the writer to be designed before inserting the witnesses, while yet there was nothing requiring the witnesses to be inserted, but the jus commune, on the supposal of which the act 1540 proceeded.
It was further argued, that supposing it requisite, before the act 1681, that the witnesses should be inserted and designed, yet, as even the decisions which suppose the inserting necessary, admit, that the designation of a witness inserted might, before the 1681, be supplied, so where the witness was subscribing, he was thereby as effectually inserted as if he had been mentioned by the writer in the writ, and therefore his designation was no less suppliable in the one case than in the other.
To this it was answered, That the witness subscribing, was by no means equal to his being inserted in the writ before the party subscribed, in respect the witnesses' names may have been added ex post facto.
The Lords “Sustained the objections, that the writer was not designed, and that the witnesses were not inserted in the docquet; but before answer to the question, Whether the designation of the writer and witnesses was suppliable, remitted to the ordinary to hear parties, in what manner the Duke's procurators would undertake to supply the same, and what evidence may be offered to support any condescendence that may be made.”
Another topic was here slightly touched for the Duke, that the docquet being subscribed by a number of persons, the Marquis's, curators, as well as by Litlegil, witnesses were unnecessary; for which the words of Sir George M'Kenzie, in his Observations on the act 1579, were referred to, “That where there is a tripartite contract subscribed by the parties, they are in place of witnesses to one another.” But this was treated by the Court as untenable in any case; for no writ bears all parties to be at the same time present at subscribing. But be that as it will, there was no tripartite contract in this case.
Vide infra Nov. 11. 1746, and Jan. 6. 1747 inter eosdem.
