Scottish Court of Session Decisions

Subject_1 WRIT.
Subject_2 SECT. XI.

Writs defective in Solemnities, Whether capable of Support, so as to furnish Action?

Tailfer
v.
Hamilton of Grange

Date: 21 January 1735
Case No. No. 319.

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A decree-arbitral being challenged in a reduction, because the submission on which it proceeded was null by act 1681, there being only one witness to the subscription of one of the parties; the defence was, That the submission was homologated by the parties appearing and pleading before the arbiters. Answered, This may give it the effect of a verbal submission, which by law is reducible upon iniquity, but cannot make a null writ valid. Replied, A writ though defective upon the act 1681, is not ipso jure null; it has an effect in law as being sufficient to found a process; it is elidable indeed by exception, but if the party do not chuse to move his exception, it is not pars judicis to take notice of it; and the acts of homologation mentioned, are sufficient to bar the party personali objectione from moving his exception; the Lords sustained the defence of homologation. See Appendix.

Fol. Dic. v. 2. p. 551.