Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 WRIT.
Subject_3 A letter, not holograph, found obligatory, the subscription being acknowledged.

Duncan Clark
v.
David Ross

Date: 19 January 1779

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Braxfield. There was no necessity of writing here for constituting the obligation; it is only used in modum probationis.

Hailes. I am sorry that Mr Ross should suffer by an act of good nature and friendship; but as, on this occasion, he performed the part of a coal merchant, he must be tried by merchant law. I suppose that, by the law of England, and of every other commercial country, an obligation like the one in controversy is good.

Justice-Clerk. Of the same opinion, and for the same reason.

Monboddo. Mr Ross has engaged in a mercantile transaction; and he must be bound by mercantile law. This does not fall under the statute 1681; and if it did, Mr Ross has acknowledged his subscription, which would, at any rate, take the case out of the statute. [This part of his opinion was reprobated in general by the Court, as inconsistent with the principles of the noted decision, M'Kenzie against Park.]

President. Goodlet's case, in 1739, is just like this. A thousand letters are written every day in mercantile transactions, of a form similar to that of the letter in controversy: and there is no doubt of their being obligatory.

On the 19th January 1779, “The Lords found that the letter was obligatory on Mr Ross;” adhering to Lord Covington's interlocutor.

Act. W. Stewart. Alt. W. Law.