A suspender exhibited a discharge, in which the charger alleged there had been clauses insetted by the suspender, who had wirten it, without the knowledge of the subscriber. The suspender was found obliged to depone as to this upon reference.
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In a suspension at the instance of Shaw of Knockhill against Balfour, where in a reason being founded upon a discharge, the charger alleged, That the said discharge could not be respected, nor could make faith to prove the reason; because that clause therein inserted, and whereon the reason was founded, was never communed upon, nor spoken to the party subscriber, neither at the time of the subscription of the discharge, nor at any time before, but was cautiously inserted therein by the suspender, the time of the writing thereof, being all written by himself, and omitted to be read by him, he having read all the rest of the clauses thereof to the defender, and the defender being then overtaken with drink before he subscribed it, and that clause reserved unread, which he referred to the suspender's oath. This was found relevant in this same order of suspension, to be proved, as said is; albeit the Lords thought that this was a matter of improbation, and that it ought to be quarrelled as false, by particularly proponing the allegeance of improbation; likeas others thought it of a dangerous preparative to take away writs, albeit clauses were inserted therein which were not read at the subscribing thereof, nor then cómmuned; because he who subscribed the writ should have read and considered the contents thereof, before he had set his hand thereto, he being then major, et rei suæs providus, and not doing that, it might be presumed, that he had allowed whatever was therein inserted, and consented that the maker should insert therein whatsoever he pleased: Which was repelled, and the allegeance against the discharge sustained to be proved by the parties oath, as said is.
Act. Kinross.Alt. —Clerk, Scot.
Fol. Dic. v. 2. p. 13. Durie, p. 241.
