Scottish Court of Session Decisions

Subject_1 PRESUMPTION.
Subject_2 DIVISION VI.

Vitiated Writs when presumed Fraudulent, when Innocent. - An impossible condition in a Writ, presumed an error of the Writer.

Mrs Lyon
v.
The Earl of Aboyne, and his Tutors

Date: 21 December 1709
Case No. No 221.

Words interlined in an assignation found unwarrantable; but as the deed without the words interlined did sufficiently convey the sum in dispute, it was sustained.

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John Lyon of Muiresk, having granted an assignation in favour of John Riddoch writer in Edinburgh, narrating, That 3500 merks were resting to John Lyon by Charles Earl of Aboyne, and that the assignee had advanced to the cedent a certain sum of money iu lieu of the foresaid sum of 3500 merks, therefore he did assign him to the said sum of 3000 merks and annualrents thereof and obliged himself to warrant the said assignation of 3500 merks against his deeds done or to be done; John Riddoch transferred the right in favour of the said John Lyon's relict, who upon a registered extract of the assignation, bearing 3500 merks interlined in the dispositive clause, pursued John the present Earl of Aboyne, as representing Earl Charles his grandfather, for payment of the said sum.

Alleged for the defender; He must be assoilzied, because the writ which is the ground of the pursuit, is vitiated by the interlining, and consequently null.

Replied for the pursuer; She cannot be prejudiced by the interlining; because the assignation doth, without it, sufficiently convey the whole 3500 merks; seeing the dispositive clause refers simply to the narrative mentioning the whole 3500 merks, and acknowledges the receipt of the value of that whole sum, which is also mentioned in the clause of warrandice. So that it appears from the narrative, onerous cause, and clause of warrandice, that the 500 merks has only been forgotten through oversight in the dispositive clause; and it were dangerous to find, that even the vitiation of an extract (which is more than interlining) doth annul the principal writ; seeing extractors may readily mistake and amend words. Nor doth vitiation annul any papers, unless it be in substantials, or be such as the words vitiated cannot be read or understood.

Duplied for the defender; As in dispositions and charters of alienation, however extensive the narrative and tenandas be, nothing is understood conveyed, but what is in the dispositive clause; so the dispositive clause only in the pursuer's assignation can be noticed. And whatever action upon the warrandice might be competent against the cedent's representatives, to assign de novo, as to the remainder; that could never found a pursuit against the Earl of A boyne, as to whom casus omissus habetur pro omisso. So interlining or blotting writs have always been sustained to annul them, November 22d 1671, Pittillo Contra Forrester, No 216. p. 11536; December 13th 1627, Hepourn contra Lyel, No 5. p. 1779. Which is agreeable to the civil law, L. 45 § 8. D. De jure fici, and to the custom of other nations, Toolasan, Lib. 36. cap. 5. § 5. Guido Papa, Lib. 22. Boer. Decis. 291. Vulterus Tom. 2. Consil. 28. § 17.; and Clarus Sentent. Lib. 5.

The Lords found, that the interlining is unwarrantable; and remitted to the Ordinary to enquire about the author in order to punish him; but found, that the assignation without the interlined words, did sufficiently convey the whole Sum of 3500 merks; and therefore repelled the defender's objection, and sustained the assignation.

Fol. Dic. v. 2. p. 153. Forbes, p. 369.