Scottish Court of Session Decisions

Subject_1 WRIT.
Subject_2 SECT. V.

What Designation sufficient?

Elizabeth Dickson and Patrick Heriot, Merchant in Fisherrow, her Husband,
v.
Mrs Isobel Logan, Relict of Mr. John Dickson Secretary to the Marquis of Tweddale.

Date: 22 December 1710
Case No. No. 152.

A contract of marriage sustained, although the writer thereof was no otherwise designed than “future spouse to the other party contractor,” to whom he therein assigned some bonds that designed him.

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In the action at the instance of Elizabeth Dickson, as executrix qua nearest of kin to Mr. John Dickson her brother, and her husband for his interest, against the Marquis of Tweddale and others, for payment of certain sums they were owing to Mr. John by bond; compearance was made for Isobel Logan his relict, who produced a contract of marriage betwixt Mr. John Dickson and her, written by himself, containing a disposition of the foresaid sums to himself and her, the longest liver in life-rent, and the children of the marriage in fee, which failing to her heirs, executors, or assignees.

The pursuer repeated a reduction of the contract, alleging it to be null, in so far as, albeit of a date since the act of Parliament 1681, it doth not design the writer, but bears only to have been written by the said Mr. John Dickson, who is not designed in the body of the writ.

Answered for Mrs. Isobel Logan: The designations of persons in writs being introduced only ad evitandam personarum incertitudinem, et ad discriminandas ejusdem nominis personas; where constat de persona, by his singular name or otherwise, no farther designation is necessary; and so it is, that Mr. John Dickson was designed sufficiently, the contract mentioning that he and Mrs. Isobel Logan did accept each other as their lawful future spouses, who were afterwards married, and the pursuers cannot condescend upon another Mr. John Dickson and Mrs. Isobel Logan, who were contracted and married; 2do, By the contract Mr. John Dickson assigns the bonds pursued for to his wife, in which bonds he is specially designed, and the relative word “said” in the latter clause, viz. written by the said Mr. John Dickson subsequent to the assignment, refers to the creditor mentioned and designed in the bonds assigned; 3tio, Contracts of marriage are favourable and often sustained, though wanting some of the formalities necessary in other writs; as one notary is sufficient to sign a contract of marriage, and a Minister may perform the part of a notary in such a contract, neither of which would be allowed in other writs.

Replied for the pursuers: The act 179. Parl. 13. James VI. requires the writer of a paper to be designed particularly by his dwelling place, or his employment, or other denomination; and the Lords are so nice in observing the designation of persons in writs, that in the case betwixt Abercromby and Innes, (Sect. 11. h. t.) they annulled a writ upon the account of a mistake in the Christian name, and would not allow the error to be helped, albeit constabat de persona, and the designation was full and ample. Now, that of future spouses, cannot pass for a certain designation, because many might be contracted and not married; 2do, Seeing the contract doth not mention that the bonds were granted to Mr. John Dickson, non constat the bonds pursued for are those assigned; for Mr. John Dickson might have been creditor to the Marquis of Tweddale and Lord Yester by assignation to their bonds.

The Lords found, That Mr. John Dickson was sufficiently designed, and therefore repelled the reason of reduction. See Falsa Demonstratio.

Forbes, p. 465.