Vitiated Writs when presumed Fraudulent, when Innocent. - An impossible condition in a Writ, presumed an error of the Writer.
Brown v. Herries
Date: 20 June 1701 Case No. No 218.
Two lines in the onerous cause of a disposition being delete not bearing to have been done by consent, the disposition was reduced in toto.
Click here to view a pdf copy of this documet : PDF Copy
Robert Brown merchant in Dumfries, as a creditor, raises reduction of a disposition of a house made to one Herries, on this reason, that in the onerous cause there are two lines wholly delete, Which not bearing to be done of consent, must annul the hail. Answered, This is not properly vitiation, which is the changing of one word into another, but only a scoring of a clause not agreed to, and which deletion has been done of consent, though through ignorance not so marked, by a marginal signed note, as it ought to have been, yet it is still legible, and only obliges him to pay L. 100 and odds to Thomas Gladstanes, &c. which he is content to do, as if it had not been scored; indeed, if it could not be read, there would be more ground of suspicion, as was lately found betwixt Dr Scot and James Bayne the wright, (see Appendix); but here it remained legible, and he was willing to perform it. Replied, If all the penalty of such vitiations were to be liable to the clause, as if it had not been obliterated, it might encourage such attempts, and we should daily see more vitiated papers; therefore they who venture on such tricks ought to have no benefit by that writ at all, seeing they have an easy remedy, either to transcribe that sheet over again fair, and in mundo, or, if the affair required haste, then to add in the margin, that so much is delete of consent; and if he has paid an adequate price for the land, then that will sustain without the disposition. The Lords reduced the disposition, but prejudice to him to insist on any other documents for astructing his right.
Fol. Dic. v. 2. p. 153. Fountainhall, v. 2. p. 114.
