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 - ACT 1579, C. 80 - 1681, C. 5.
Subject_3 A witness being designed in a deed by a familiar appellation, and subscribing in his proper one, vacates the deed.

David, &c Archibalds
v.
Marion Marshall

Date: 17 November 1787

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[Fac. Coll. X. 8; Dict. 16,907.]

Hailes. Here we have a proof of the supine carelessness of men of business. Witnesses ought to subscribe before the testing clause is filled up. How could a writer, with his eyes open, certify that Hilloch subscribed as a witness while no such subscription appeared. It is in vain to say that this man had two names, Hill and Hilloch. By the same argument Little and Littler, Smeal and Smeallie, Rosse and Rose, may be the same names, because they resemble each other. It is also said that Hill is the name, and Hilloch a diminutive. But mark the consequences: a man may sign Alexander and be aptly designed Sandie: so William and Willie; Richard and Dick; Robert, Rob, and Robin; Edmund, Nun; Francis, Frank; Thomas, Tom, &c. Hence we shall have the following accurate designation: Dr William Thomas, advocate in Aberdeen; William Thom, witness: George Alexander, writer in Edinburgh; George Sandie, witness: Philip Frank, Esq., late one of the Supreme Council at Calcutta; Philip Francis, witness.—Such instances are numberless.

Braxfield. The Act 1681 is a wise one: since that time no condescendence has been allowed to supply nullities.

President. In the case, Duke of Douglas against The Creditors of Little-gill, the defect was found suppliable, and supplied: that however related to a deed executed before the Act 1681.

On the 17th November 1787, “The Lords sustained the objection;” and, 4th December, adhered.

Act. G. Wallace. Alt. Alex. Abercrombie.