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Scottish Court of Session Decisions >>
James Rymer v Alexander M'Intyre. [1781] Mor 5726 (19 July 1781)
URL: http://www.bailii.org/scot/cases/ScotCS/1781/Mor1405726-097.html Cite as:
[1781] Mor 5726
An informal indenture was found homologated by the service having taken place.
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In May 1776, a son of M'Intyre's, under eleven years of age, entered into the service of Rymer, in his trade, that of an engraver; and, soon after, an indenture was executed between them, by which the boy was to become bound as an apprentice to him, for the term of six years. This writing, however, though subscribed by Rymer, by M'Intyre, as cautioner for his son, and by the boy himself, was, in other respects, informal. The testing clause stood thus:
“In witness whereof, both the said parties have subscribed these presents, written upon stamped paper by (Signed) Gavin Rymer, shoemaker, and Adam Richardson, ditto.”
And below, these names were repeated thus:
“Witness Gavin Rymer, Adam Richardson.”
The boy continued to serve Rymer till October 1779, when his father, on an allegation of bad usage, took him away from his master's service; upon which Rymer brought an action against M'Intyre, concluding for the penalty, and for damages.
Pleaded for the defender; The indenture, from its wanting such a proper designation of the writer and witnesses, as is required by the act 1681, cap. 5. is void and null. This statute has not, like 1593, cap. 179, left any room for a posterior condescendence; and, as its words expressly declare a writing, so defective, to be absolutely null, no person can reasonably think, that it affords nothing more than an exception which may be tacitly renounced by acts of homologation.
Answered; If defective deeds are not to become valid by homologation, a man's titles to his estate may not, even after the years of prescription, afford him any security. It is only in nudis finibus contractus, that the statutory nullities have force. Subsequent approbatory acts remove every objection. Such has been found, by many decisions, to be the effect of implement in tacks and in marriage contracts. Such, too, is the known effect of rei interventus. And, surely, the boy's continuing to serve under the indenture for upwards of three years, imports a sufficient homologation; November 23. 1699, Greeson contra Scott, voce Writ; January 21. 1735, Telfer contra Hamilton, Ibidem.
Observed on the Bench; As, in this case, there is full evidence of an agreement between the parties, there would have been good ground, altogether independent of the indenture, for compelling either of them to enter regularly into a written contract.
The Lords, ‘in respect of the apprentice's entering into his master's service, and continuing there for three years, by which the indenture was homologated by both parties, repelled the objection of the want of the legal solemnities, made to the indenture.’ See Writ.
Lord Ordinary, Hailes.Act. H. Erskine.Alt. Rae.Clerk, Robertson.
Fol. Dic. v. 3. p. 274. Fac. Col. No 74. p. 128.
*** For other cases, relative to the point whether writs defective in solemnities can be supported by homologation, see Writ.
