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 Acknowledgment of Subscription.

Robert Walker
v.
Robert Duncan

Date: 9 December 1785

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[Fac. Coll. IX. 428; Dict. 17,057; Note.]

Hailes. All the argument on the fact, from the suspicions raised against the subscription, “Robert Duncan,” is nothing to the purpose; for that subscription is still connected with the rest of the paper. [A circumstance never attended to by the lawyers in this cause.] And, supposing it to have been separated from the paper, the tops of the original letters are still visible on the paper; and the art of man could not have pasted any subscription so as to correspond with those tops. As to the cause itself, there is a difference between a deed inter mercatores and a deed in re mercatoria. When merchants engage in transactions, not necessarily connected with commerce, they must observe the same forms that the law requires in solemn deeds.

Eskgrove. In various cases, which do not necessarily require writing, acknowledgment of subscription may be sufficient; but the case is different where a formal writing is necessary to constitute the obligation. An obligation of relief is a cautionary obligation for producing action.

Monboddo. If a person acknowledge his subscription, there is no danger of forgery: so the Act 1681 is out of the question. Late decisions may be against me, and perhaps my law may be antiquated.

Hailes. Let me add, that Lord Coalston thought as Lord Monboddo does; but, after the case of Fogo and Milligan, which was deliberately judged, he gave up his opinion to that of the majority, that there might be no longer any controversy on this point. It is now settled, if any thing can be settled.

President. The Act 1681 is not merely intended to prevent forgery: it introduces a solemn form of a literarum obligatio.

On the 9th December 1785, “The Lords assoilyied;” altering the interlocutor of Lord Ankerville.

Act. E. M'Cormick. Alt. A. Abercrombie.

Diss. Ankerville, Monboddo; non liquet, Rockville.