Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.
Subject_2 MONBODDO.

Duke of Douglas
v.
Creditors of Littlegill

Date: 7 November 1746

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[Elch., No. 11, Writ; Kilk., No. 8 and 12, ibid.; Falconer, No. 156.]

The Lords found, (Absent. Preside et Arniston,) That, before the Act 1681, if two persons signed a deed, with the addition of witnesses to their names, their designations were supplyable by condescendences. For it was said by Lord Elchies, that, before the 1681, the solemnities of writs required by law, such as the designation of the writer and witnesses, and the naming of the writer, were only ad fidem faciendam judici; so that, if the deed wanted these, it made na faith, (as these Acts say,) but they were not absolute requisites that could not be otherwise supplied; and therefore, though the Act 175, 1593, absolutely requires the writer’s name and designation to be inserted in the body of the writ, yet both the one and the other were supplyable before the Act 1681. This was the opinion of the Lords on the Friday, with relation to the point of law; but, as there was a point of fact they wanted to have cleared, they would not determine the cause that day. On the Tuesday following, Lord Elchies being in the Outer-House, they found, in abstracto, the designation of the witnesses not supplyable. But this was altered, January 6, 1747. Preside presente.