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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> James Rymer v Alexander Macintyre [1781] Hailes 887 (14 July 1781)
URL: http://www.bailii.org/scot/cases/ScotCS/1781/Hailes020887-0565.html

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[1781] Hailes 887      

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 HOMOLOGATION-APPRENTICE.
Subject_3 Informal Indenture homologated by the Service having taken place.

James Rymer
v.
Alexander Macintyre

Date: 14 July 1781

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[ Faculty Collection, VIII. 1128; Dictionary, 5726.]

Braxfield. If a statutory nullity is not capable of being waved by homologation, the objection will not cease even after the years of prescription, and thus prescription may come to be no good defence even in land-rights. When a tack is liable to a statutory nullity, if the parties go on to implement, the objection flies off,—so also in marriage-contracts, if marriage ensue: here the apprentice entered to the service, and continued in it for three years:—was instructed and maintained by the master. This is sufficient to found a plea of homologation.

On the 14th July 1781, “The Lords found the cautioner liable, in respect that the apprentice entered to the service, and was taught and alimented by the master;” altering the interlocutor of Lord Hailes.

Act. H. Erskine. Alt. D. Rae.

N. B.-I do not recollect to have seen this equitable interpretation of the Act 1681 ever extended before to the case of cautioners.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


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URL: http://www.bailii.org/scot/cases/ScotCS/1781/Hailes020887-0565.html