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Scottish Court of Session Decisions >>
David Ogilvie of Clova v William Bailie of Lamingtoun, [1711] Mor 16896 (21 July 1711)
URL: http://www.bailii.org/scot/cases/ScotCS/1711/Mor3816896-123.html Cite as:
[1711] Mor 16896
David Ogilvie of Clova v. William Bailie of Lamingtoun,
Date: 21 July 1711 Case No. No. 123.
Date and place not essential to the validity of a writ, and the designation of witnesses to a writ before the act 1681 allowed to be supplied, though the witnesses were not named in the body of the writ.
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In a process at the instance of Clova against Lamingtoun, for payment of 2,000 merks of legacy left by Mrs. Grizel Hamilton, daughter to the Lady Bargeny, to which the pursuer had right by assignation from the legatary; the defender produced a declaration under the testatrix's hand for proving that she had power to bequeath only the half of the said sum. The pursuer replied, That the declaration was null, as wanting date, place, witnesses' names and designations.
Duplied for the defender: Date and place are not de substantialibus of a writ, and he offered to condescend upon the witnesses, which he might do, the writ being signed before the act of Parliament 1681.
Triplied for the pursuer: Date and place are essential to a writ, and cannot be supplied, nor were ever the names and designations of witnesses not mentioned in the body of the writ allowed to be supplied by a condescendence, though the designations of witnesses whose names were inserted might be supplied.
The Lords found, That date and place are not essential to the validity of a writ, not being mentioned inter substantialia in the act of Parliament 1681; and found that the declaration being emitted before the making of the said statute, the designation of the witnesses may be supplied, though their names were not inserted in the body of the writ.
