Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

Elisabeth Dickson and Patrick Heriot
v.
Isobel Logan

Date: 23 December 1710

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The deceased Mr John Dickson, secretary to the Marquis of Twedale, in his contract of marriage, in 1707, with Isobel Logan, sister to Burncastle, dispones the fee of 7 or 8000 merks he had in Lord Yester's hands and in the African Company, to her, in case of no children, and the liferent only in case there were bairns. He dies in 1710 without children, whereon Elisabeth Dickson, and Patrick Heriot her husband for his interest, confirms herself as nearest of kin to the said Mr John, her brother, and pursues the debtors for payment. Isobel compears, and, producing her contract of marriage, craves to be preferred. Against which the executrix repeats a reduction on this reason, That it was null, because the 179th Act, 1593, declares, That all writs not mentioning the designation of the writer, by his dwelling-place, diocese, or other denomination, shall make no faith in judgment, nor outwith the same: and the 5th Act 1681 declares this defect shall not be suppliable by a condescendence thereafter. But so it is, this contract bears no more but “Written by the said Mr John Dickson;” and though the word “said” be relative, yet in no part of the contract is he designed anymore than simply by his name, which neither satisfies the letter nor meaning of the foresaid Acts.

Answered,—The designation of parties and writers is only required in Jaw ad evitandam personarum incertititdinem, and to discriminate two persons of the same name one from the other; so that, by the Roman law, even falsa demonstratio did not vitiate ubi constat de persona; names and designations being invented only to avoid confusion, dubiety, and uncertainty. Now here Mr John is sufficiently designed, by him and her being called future and affidate spouses; for correlata se mutuo ponunt et distinguant; and in his assigning her to the bonds he is fully designed in them, which is all one as if it had been repeated in the contract; for one may be known per relationem ad aliud; and it is mere trifling and quibble, unless they say there was another Mr John Dickson married at the same time to another woman called Isobel Logan; and, on their oath of calumny, they dare not refuse but he is the very man. Besides, the marriage having followed, and stood for some years, that, beyond all rational contradiction, explains and supplies all difficulties; many things favore matrimonii being allowed, which law requires in other cases; as minutes of contracts matrimonial are sustained though only signed by one notary, and though it be a minister instead of a notary: though the 133d Act 1584 only permits that in the case of testaments,—Vid. 12th July 1631. And all thir privileges are indulged, because marriage actually followed; which supplied all defects.

Replied,—This is still to make up his designation by consequential inferences ; which is expressly prohibited by the Act 1681: and in a late case, betwixt Walter Abernethy and Innes of Dunkinty, where one was called Robert, his true name being John, the Lords would not allow them to alter it, but found it null. And this contract being exorbitant, giving all to the wife, to the prejudice of his sister, rapienda est occasio to rectify it; they being in the precise terms of a nullity introduced by the Acts of Parliament for the public good. And, in a competition betwixt the Relict and Creditors of Mr Thomas Chalmers of Gogar, the Lords found a marginal note, giving the wife the liferent of the house and yard, null, because it did bear that the witnesses to the writ were likewise witnesses to the marginal note; and yet that was in a contract of marriage; which are tied to the observation of legal solemnities as well as other writs: and the same cannot be supplied by equivalents or references to other deeds.

The Lords found him sufficiently designed, marriage and cohabitation having followed thereupon; and so repelled the nullity, and sustained the contract.

Vol. II. Page 613.