Vitiated Writs when presumed Fraudulent, when Innocent. - An impossible condition in a Writ, presumed an error of the Writer.
Oliphant v. Peebles
Date: 4 December 1629 Case No. No 213.
A tack vitiated in the date of the entry, sustained, the entry having been presumed at the date of the writ.
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In a spuilzie of teinds at the instance of a tacksman, the tack bearing the entry to be in the year 1617, and that year being delete, and the year written on the margin to be in anno 1616, which margin bearing the entry, was not subscribed by the setter of the tack; whereupon the defender alleged, That it could not produce spuilzie, being so vitiate in the entry; notwithstanding whereof the tack was sustained; for it was found, that albeit it had no entry appointed therein at all, yet it might be sustained, for the tack was set by a parson of a kirk for many nineteen years, with consent of the patron, and tacks set during lifetime needed not to bear any time of entry, seeing it behoved to be understood, that the entry should be presently at the date thereof, except it were otherwise evident that any other entry was appointed specially both setter and receiver living.
Act. Present.Alt. —.Clerk, Hay.
Fol. Dic. v. 2. p. 152. Durie, p. 472.
