Scottish Court of Session Decisions

Subject_1 WRIT.
Subject_2 SECT. VIII.

Privileged Writs.

Pyronon
v.
Ramsay's Executors

Date: 14 February 1627
Case No. No. 203

A letter sent to France commissioning wines not sustained to produce action, unless proved to be holograph. - But see No. 208. infra.

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In an action at the instance of one Pyronon a Frenchman, against the Executors of umquhile Patrick Ramsay, for payment of certain wines sent to the said umquhile Patrick by the pursuer, conform to a letter written and sent by the said Patrick to the said French-man, giving him commission to buy the said wines to his use, and to send them to him; the Lords found that the pursuer could not have action upon the said missive letter, containing the said commission, except that he proved that the whole body of the letter was holograph; and found it not sufficient, that the said pursuer offered to prove that the subscription thereof was the said umquhile Patrick's hand writ, except it had been proved also, that the whole body was written by him: Neither was it respected that the pursuer contended, that there was no necessity, that the same should be all holograph, being truly subscribed by him, and that he might cause any other write thes ame by his inditement, otherwise no writ should have faith betwixt factor and merchant, except that the same were written by the party's own hand, which were a great inconvenience, tending to take away all trade and credit betwixt merchants and factors; for many times merchants that cannot write well, will direct letters to their factors, and will put to their mark to the letters; and it were hard that sicklike letters should not be warranted to them that answers them, specially where the wares written for are truly sent and delivered, conform to the desire of the letters, as in this case controverted, where the delivery of the wines written for by the letters and the price whereof was now acclaimed, was offered to be proved by the ticket of entry written in Bourdeaux, and subscribed by the skippers, in whose ships the wine was transported, and by tickets of entry of the same wines in the custom books of Leith, subscribed by the said Patrick Ramsay, and by the obligation given and subscribed also by the said Patrick, obliging him to pay the custom for the said wines, wherein he granted that the same was entered in his name, and to his behoof, all which the pursuer contended, proved the defunct's receipt of the wines, so that there was no necessity to prove the letter holograph. All which was found by the Lords not to be sufficient, to produce this action for the prices of the wines, except it were proved, that the whole letter was holograph, which they found necessary to be proved, otherwise that the pursuer had no action in this process: Also the Lords found that the pursuit made at the stranger's instance could not be sustained, being pursued in his own name, he not being present, without a procuratory were made by him, and caution were also found de rata &c. which procuratory and caution they ordained should be found in ingressu litis, before the defender could be compelled to dispute; and found it not sufficient that caution was offered before sentence; or when litiscontestation should be made.

Act. Nicol & Belshes, Alt. Hope & Lermonth. Clerk, Gibson. Durie, p. 273.