Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 WRIT.

Park
v.
Mackenzie

Date: 14 November 1764

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In a cause decided 29th November 1763, the Lords found, “that a writ, not holograph, and wanting the legal solemnities, was not good in a bargain of selling land; although the person who signed it acknowledged his subscription.”

Lord Kames argued, That the sole intention of the solemnities of writs was to prevent forgeries. And, therefore, where, as in this case, the subscription was acknowledged, there was no forgery, so solemnities were useless. But others of the Lords argued, that solemnities were intended not only to prevent forgeries, but also to prevent parties from being surprised into transactions concerning heritage, which were generally of moment, in order to afford all parties a locus pænitentiæ.

This interlocutor was adhered to. See Ersk., p. 427.

In this case there was a letter offering to sell, holograph, with an acceptance not holograph, but signed before witnesses, but the witnesses were not designed. The acceptor had also signed the offer, but this subscription also was not formally attested. The objection was the same. The Lord Ordinary “had found the defender liable to implement the bargain to the pursuers in terms of the missive and acceptance libelled on.” But the Lords altered.