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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> John Carre of Cavers, Esq. v. John Haldane of Lanark, Esq. [1731] UKHL 1_Paton_51 (15 March 1731)
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Cite as: [1731] UKHL 1_Paton_51
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SCOTTISH_HoL_JURY_COURT
Page: 51↓
(1731) 1 Paton 51
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
No. 12.
v.
Subject_writ. —
Act 1681, c. 5. What an insufficient designation of a witness to a bond.
[Bruce, p. 1. Mor. Dict. p. 16924.]
James Law executed a bond for L.500 Scots in favour of John Carre, the appellant. After Law's death, Carre obtained a decree of adjudication upon the bond against certain lands, in which he had been infeft, and upon this adjudication raised an action of mails and duties against the tenants.
Posterior to the adjudication, James Law (son and heir to the granter of the bond) sold and disponed the lands in question in favour of John Haldane, the respondent, who thereupon brought an action of mails and duties against the tenants, and likewise a reduction against the appellant, concluding to have his bond and the adjudication following on it set aside, on the ground (among other reasons) that the subscribing witnesses were not designed in terms of the act 1681, c. 5. The designation was as follows:
“Before these witnesses, Gilbert Ellet, inserter of the sum, and Archibald Nilson, serviter to the laird of Cavers.”
November 10, 1714.
The Lord Ordinary, by interlocutor of this date, reduced the bond and adjudication, and ordered
Page: 52↓
Entered January 28, 1730.
The appeal was brought from the interlocutors “of the 10th and 23d November, and 7th and 16th December, 1714.”
Pleaded for the Appellant:—It being offered to be proved that both witnesses were servants of the laird of Cavers, the single designation of “servitor” is evidently applicable to both. It is obvious that the writer of the deed so intended it, and at all events the error, which consists only of the omission of the letter s at the end of the word “servitor,” can amount to no more than vitium scriptoris.
The bond having been granted for a valuable consideration, viz. money actually lent, and the question being with a purchaser who acquired the lands under burden of this debt, the act ought to be construed as favourably as possible. The only object of the act was to prevent frauds in the execution of deeds, and there is here not the least suspicion or allegation of any fraud.
Pleaded for the Respondent:—The witnesses are not designed in terms of the statute. Its words are imperative, and expressly exclude all proof to supply a defective designation.
Judgment March 15, 1731.
After hearing counsel, “it is ordered and adjudged, &c. that the appeal be dismissed, and that the said interlocutory sentence or decree made by the said Lord Ordinary, and the several interlocutors of the said Lords of Session in
Page: 53↓
Counsel: For Appellant,
C. Talbot and
J. Grahame.
For Respondent,
Dun. Forbes and
Will. Hamilton.