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Scottish Court of Session Decisions >>
The Creditors of Lindsay of Pyeston v Walter Pitullo. [1697] 4 Brn 353 (14 January 1697)
URL: http://www.bailii.org/scot/cases/ScotCS/1697/Brn040353-0744.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Creditors of Lindsay of Pyeston v. Walter Pitullo
Date: 14 January 1697
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Halcraig reported the Creditors of Lindsay of Pyeston against Walter Pitullo, clerk of Dysert: it was an objection of a nullity against his heritable bond, and the seasine taken thereon. Objected against the bond,—That the witnesses' names were filled up with a different hand from the body of the writ, and did not mention the upfiller. This the Lords did not regard, seeing there was no Act of Parliament before 1681 requiring it; and this bond was prior. The only Act concerning it is the 175th Act 1593, requiring all writs to bear the writer's name, under pain of nullity, which this bond did quoad the body of the writ. The nullity against the seasine was,—that it contained three witnesses, and only one of them was designed; in so far as it bore Thomas Miller, and James, servitor to Pyeston. Now Miller had no designation, and James —, who is called servitor to Pyeston, had no surname, and so habetur pro nullo et non adjecto. The Lords thought this nullity yet suppliable quoad Thomas Miller, (being before the Act of Parliament 1681.) But the question occurred to the Lords,—What if he designed a dead man? the mean of improbation comparatione literarum, or otherwise, was perished, seeing witnesses in seasines did not then subscribe. Others thought it alike, in re antiqua, whether the party designed was dead or alive; but the Lords, before they would determine whether it was suppliable or not, desired to see the decisions, how the current had hitherto run in such cases. See 7th February 1672, Stuart against Kirkhill.
The Lords, at last, thought it of dangerous consequence to allow the designation of dead witnesses, where they are not subscribing. Yet here, before answer, they allowed a proof to either party; the one to prove that Miller was then Pyeston's servant, and the other, that he was tenant in Hilton, conform to the designation given him, in another charter, of a creditor on the same estate.
See 15th July 1664, Colvil; 24th January 1668, Magistrates of — against Earl Finlater.
