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Scottish Court of Session Decisions >>
Earl of Rothes v Leslie. [1635] Mor 12605 (9 December 1635)
URL: http://www.bailii.org/scot/cases/ScotCS/1635/Mor2912605-493.html Cite as:
[1635] Mor 12605
If a writ bear to be holograph, it is a sufficient proof, unless the contrary be proved.
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There being a submission made betwixt one Leslie and —, to a certain Judge, who by his decreet-arbitral following thereupon, having decerned the other party to pay to the said Leslie, the sum of eightscore pounds, where-unto he having made the Earl of Rothes a right, who charged for payment of the sum, and the other suspending, that the decree-arbitral, which was inserted in the blank on the back of the submission, was null, because the same wanted witnesses, and so was against the act of Parliament, which required the subscription of the party, and of the witnesses before whom it was subscribed, otherwise that it could not make faith; for by the want of witnesses the means of improbation were taken from the party;—this reason was rejected, and the decree-arbitral sustained, seeing the same was inserted in the blank upon the back of the submission, and bore, that the same was all written and filled up in the same by the judge-arbiter himself, to whom it was submitmitted, and bore to be all his hand writ; likeas the said blank was subscribed by the parties submitters themselves also; and in respect it bore to be holograph, the Lords found, that there was no necessity to have witnesses inserted therein; neither was it respected that it was alleged, that the argument of holograph might well have place to excuse the not adhibiting of the witnesses, among parties, where any party had written a writ whereby himself might be bound; but it ought not to have a like force, in respect that any other than the party himself might bind another party, but in a legal manner before witnesses, at least it ought to be proved, that the said writ was holograph, if that were found to be sufficient, as the party contended that it was not; which being reasoned and proponed, as a doubt among the Lords, it was repelled, and no necessity found thereof, and the decree sustained, bearing as said is.
Act. Stuart.Alt. Baird, & ——.Clerk, Gibson.
Fol. Dic. v. 2. p. 257. Durie, p. 784.
