Scottish Court of Session Decisions

Subject_1 WRIT.
Subject_2 SECT. VI.

Other Requisites.

Duncan Clark
v.
David Ross

Date: 19 January 1779
Case No. No. 181.

A letter not holograph found obligatory, the subscription being acknowledged.

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Walter Ross purchased in Scotland, and shipped for London, two cargoes of coals, upon commission, for Duncan Clark and George Ross, who carried on a coal trade in Company there. Before the arrival of the vessels at London, Ross and Clark had agreed to dissolve the Company; and Ross being desirous to have the property of both cargoes, Clark consented, on condition of his getting sufficient security, that he should not be liable for any part of the price.

George Ross accordingly prevailed on David Ross to interpose, by a missive to Clark, in these terms:

“As my friend Mr. Walter Ross writer, has gone under acceptance to John Grieve of Borrowstounness for two cargoes of coals, value about £111, which was shipped at Borrowstounness in October last, on account of George Ross, for George Ross and Company, I hereby become bound to you, that you shall not be called upon for the payment of any of the above cargoes of coals; or, if you should be called upon, I oblige myself, by this letter, to relieve you from any demands that can be made upon you on account of said coals,” &c.

The missive was written by George Ross, and subscribed by David. George afterwards became bankrupt; and Walter Ross having brought an action against Clark for the price of the coals, Clark pursued David Ross for relief upon his missive, who acknowleged his subscription, but objected, that the missive was null, as wanting the statutory solemnities.

Pleaded for the pursuers: The missive in question being executed in England, its validity cannot be affected on account of the want of forms merely required by a Scottish statute. It is valid, if conceived in a form agreeable to the law of the locus contractus. Missives of this kind are obligatory in England, and common and necessary in expediting the operations of trade.

But, were the law of this country to be the rule, the transaction in this case was of a mercantile nature; and it is a fixed point, that a missive, such as the present, in re mercatoria, is probative and obligatory.—And even although it were not in re mercatoria, the objection to the missive is removed by the defender's acknowledgment of his subscription. This is sufficient to render the missive probative; and so it has been found in cases where the transaction was in no degree mercantile; Foggo against Milliken, 20th December 1746, Sect. 8. h. t.; Crawford against White, 13th January 1739, Ibidem; Niel against Andrew, 8th June, 1748, Ibidem.

Answered for the defender: The pursuer cannot found an argument on the locus contractus, as he has not establised, by any authority, that cautionry obligations may be executed by the law of England in the form of this missive. If it is null and void by the laws of this country, it will not be presumed effectual by the law of England. The presumption is, that objections of a like nature would occur to it in the courts of that country as occur to it here.

By the law of Scotland, the missive in question is not probative nor obligatory. A certain indulgence with respect to forms is allowed in mercantile transactions which require dispatch. But a cautionary obligation is one of those deeds which comes directly under the intendment of the act 1681, and requires the solemnities mentioned in that statute to render it effectual.—Cautioners have been assoilzied from actions founded on imperfect deeds, even before the act 1681, where the principals in such deeds have been held as expressly bound; June ult. 1625 A. against B. Sect. 8. h. t.; Campbell against Campbell, 1664, Ibidem.

It will not remove this objection to the writing, that the defender does not deny his subscription. The object of the statute is not merely to prevent the forgery of a subscription; it was meant, that deeds to which these solemnities are requisite, should be executed in a deliberate manner, and before witnesses, whereby fraudulent designs might be prevented, or at least afterwards brought to light. The objection, therefore, remains, though the subscription is not denied; and this doctrine is supported by the latest judgments of the Court; M'Kenzie against Park, 15th November, 1764, (Not reported;) Crichton and Dow against Syme, 22d July, 1772, (Sect. 11. h. t.)

The Lord Ordinary pronounced the following interlocutor:

“As it stands acknowleged on the part of the defender, that the subscription to said letter is his true subscription, repels the defence pleaded against said letter, as neither probative nor obligatory, in respect of its not being holograph, nor having any of the solemnities required by the statute 1681. Finds, that, as the letter is dated at London, where both pursuer and defender did reside at the time, and as it stands confessed, that the subscription to said letter is the defender's true subscription, finds, that the statute is out of the case. And, separatim, finds, that, supposing the statute to apply, the defender's acknowledgment of the subscription to said letter being his true subscription, is available to render said letter both probative and obligatory; and, therefore, upon these grounds, finds the defender liable to relieve the pursuer of the two bills referred to in said letter.”

The Court “adhered to this interlocutor” on advising a reclaiming petition and answers.

Lord Ordinary, Covington. Act. W. Stewart. Alt. Crosbie. Clerk, Menzies. Fac. Coll. No. 56. p. 100.