Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
George Home v. William Brown
1672.
November.
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In the same month of November, 1672, in an action pursued by George Home, merchant in Edinburgh, against William Brown, writer there, it fell to be debated, but not decided,—1mo, If a base right, with a pursuit for mails and duties thereupon some three days before the date of a public infeftment by confirmation, will be sufficient to prefer the said base right to the public infeftment, especially seeing the intenting of a process for mails and duties can be no such qualification of possession as can clothe or prefer the said base right. This is very dubious.
Secundo, Quæsitum, in this process, if a bond or other writ be false in the date, as being antedated, whether that will so annul the whole deed as to make it fall in totum, or if they will be permitted to rectify the same; especially where the party-quarreller is found to have no prejudice by the changing or altering of the date, or to have no interest though it were of that date which he contendeth for. Yet Sir George Lockhart concluded such a deed would be utterly null. And it was remembered how in Shaw and Calderwood's case in July 1670, (which see supra, No. 60, *) where a disposition having been granted on deathbed, and antedated, and quarrelled on these grounds, and being proven to have been false in the date, and not subscribed at that time it bore, the Lords did annul and reduce it simply, as if it had been granted on death-bed; notwithstanding that the defender condescended upon the true date thereof, and offered him to prove that when it was truly subscribed the granter was not in lecto, in so far as he came to kirk and market unsupported after the same, and so the pursuer had no prejudice, nor the defender advantage, by the change of the date. Which the Lords repelled, as is said, and notwithstanding thereof found the said disposition null; which they judged necessary for the better coercing and restraining of that growing falsehood; and which though not punished hitherto, otherwise than by the annulling of the deeds, yet the danger may result to men's securities by such increasing boldness, seems necessarily to require some farther censure. And the pretence, that the party hath no prejudice by it, ought no more to be regarded here than by the 22d act of Parliament in 1621, the allegeance, that they only made a false writ, but never used it to the hurt of any, is not sufficient to liberate them from the punishment of forgery.
Neither was this a new decision; seeing Dury, at the 10th of February, 1636, Edmiston against Syme, observes the same to have been so found by the Lords then; as also, Craig, p. 156, is clear of this opinion: Quod non est verum in data quam præ se fert, præsumitur non esse omnino verum, nec ullo tempore fuisse gestum.
Advocates' MS. No. 375, folio 155.
* See it fully at the 11th of February, 1669, Shaw and Handyside against Calderwood; infra, No. 431, in November 1673, Lady Grange; infra, No. 578, § 4, [20th June 1677.]
