Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

James Simson
v.
the Archbishop of St Andrew's

1683. January and March.

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Margaret Burnet's creditor having adjudged from her, as lawfully charged to enter heir to William Burnet, and raised reduction of John Burnet's right, who was infeft by my Lord Traquair, upon a precept of clare constat, as heir to the said William, upon this reason, that his sasine was falsum in data, in so far as it bore date 3d December 1674, and the precept of clare was dated the 29th of the said month; the Archbishop of St Andrew's commenced a declarator to hear it found, that the precept was of a date prior to the sasine, and that the posterior date it bore had been filled up by mistake. Alleged for the defender, That to sustain such a declarator would be of a dangerous preparative, especially in a competition of creditors; and that falsum in data quam præ se fert, est falsum in toto: and it is more probable that the date of the sasine is false than the date of the precept mistaken, seeing there is a note of the date and witnesses thereof indorsed upon the back of the precept, which probably has been taken at the subscribing, before filling up of the date. The Lords, before answer, ordained Traquair, the subscriber of the precept and the writer and witnesses insert, to be examined anent the precise date of the precept, as near as they can remember. —January 1683.

Probation being led, it appeared that the precept was delivered blank, and was in the hands of my Lady's writer, and the composition paid to him some months before the date of the sasine. It was alleged for the Archbishop, That the precept being anterior to the sasine, and the true date of the sasine astructed by the depositions of the witnesses thereto, and the sasine narrating the precept, 'tis evident that the error hath not been in the sasine, but in the filling up the date of the precept, which, at the worst, is but error or falsum ex errore, and not competent to be debated in a competition of John Burnet's creditors; so that the precept being granted in John's lifetime, and before the sasine, (whatever be the particular date of it,) will hinder Margaret's service as heir to their father William, which was unjust and fraudulent, and designed to cut off all the brother's creditors. Answered for the pursuer of the reduction, That falsum in data falsum in toto; and the witnesses must condescend on a precise date of the precept; nor is it enough to say, that it was of an indefinite date preceding the sasine, seeing the means of improbation would be cut off thereby; and the user of a blank precept, quarrelled as false, would be obliged to condescend on the date of it. The Lords delayed to advise the point.—March 1683.

Page 147, No. 532.