BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Sheil v Crosbie. [1739] Mor 17033 (4 July 1739)
URL: http://www.bailii.org/scot/cases/ScotCS/1739/Mor3817033-321.html Cite as:
[1739] Mor 17033
Writs defective in Solemnities, Whether capable of Support, so as to furnish Action?
Sheil v. Crosbie
Date: 4 July 1739 Case No. No. 321.
A writ subscribed only by one notary may be supplied by the party's oath, or by acts of homologation.
Click here to view a pdf copy of this documet : PDF Copy
An ordinary having found a deed of importance signed only by one notary and two witnesses, null, and not suppliable by the party's oath, that he had given order to the notary to subscribe for him, the interlocutor was, upon petition and answers, “Altered;” some of the Lords putting it upon this, That in general such nullities were suppliable by oath of party upon the verity of the deed.
And it may be true, that this opinion receives some countenance from certain decisions, whereby it has been found, that the nullity of not designing a witness, and the like, was suppliable by acts of homologation. But the decision did not proceed upon that general ground; for the Lords who spoke for altering, declared their opinion upon the general point for the Ordinary's interlocutor, and their dislike to the said decisions on the point of homologation; but observed which was the ground of the decision, that this case is very different from that of a party's subscription not duly attested by the legal solemnities; for that a second notary's subscription is not required in way of solemnity, but in majorem evidentiam. And therefore, where only one notary subscribes, the want of the second notary's subscription may be supplied by oath of party, or acts of homologation. Before the act 1681, even where a party's subscription was not legally attested, the defect might have been supplied by homologation, or by the party's oath, that he subscribed the deed, though this cannot be admitted since the act 1681; but as the subscription by notaries is no part of the subject of the act 1681, all defects in deeds by notaries are suppliable now, in the same manner as before that act.
