A bond being vitiated in the sum, the defender was not obliged to bring improbation, but the pursuer was obliged to ascertain the sum by adminicles.
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Umquhile George Lyle being obliged by his bond to pay a sum to Francis Lyle his brother, Mary Hepburn, relict and executrix of the said Francis, pursues the son of the said George, as lawfully charged to enter heir to him, for payment thereof; and the defender alleging, That the sum contained in the bond was vitiated and superinduced, as might be seen to the Lords by ocular inspection, for the sum was made 500 merks, whereas truly the same was less; the Lords having seen the bond, and by inspection finding the letters of five to be superinduced above some other letters, whereof the vestiges yet appeared, and were seen unto the Lords, whereby it was likely that the sum was less than five; therefore they ordained the pursuer, user of the bond, to approve, either by some writ, or by the witnesses inserted in the bond, or by some other lawful adminicle, that the sum of five was the true sum owing, and contained ab initio in the obligation; which probation the Lords found necessarily was incumbent, and lay upon the user of the bond, seeing it was seen by the Lords to be superinduced; and found it not necessary, that the defender should be obliged to improve the same, albeit the pursuer abode at the same.
Act. ——.Alt. Craig.Clerk, Gibson.
Fol. Dic. v. 2. p. 214. Durie, p. 321.
