Scottish Court of Session Decisions

The Scottish Union Insurance Company held two heritable bonds of annuity granted by Graham of Gartmore, and followed by infeftment—the one for £1311, 10s. l0d. over the lands of Gartmore and others; and the other for £926, 17s. 2d. over the lands of Finlaystone and others. The bond for £1311 contained in the dispositive clause a declaration, that no adjudication or other diligence upon the bond should “anywise affect the lands and heritages before described, or any part or portion thereof, or the rents, mails, and duties of the same, for any longer period than during my life.” The words in Italics were written on an erasure, without any notice of this being made in the testing clause; but, in the precept of sasine, the clause was repeated verbatim, without any erasure. In the instrument of sasine following on this bond, there were a considerable number of words, forty in all, written on erasures, but, for the most part, they were perfectly immaterial. Among them, however, was the name of one of the parcels of land, “Gartinstarry,” which, wherever it occurred throughout the instrument, was written on an erasure. The notary's docquet did not specify the words which were written on erasures, but bore generally—“uno verbo super pagina secunda, uno super pagina decima, duobus super pagina undecima, uno super pagina decima quarta, duobus super pagina decima nona, uno et triginta super pagina vigesima, uno super pagina vigesima prima, et uno super pagina hae diet. manu aliena in loca erasa superinductis.”

In the instrument of sasine on the other bond, in regard to two parcels of lands thus described—“the lands of Hole, possessed by William Paul, the lands of Carnappack, possessed by William Paul”—the words “Hole” and “William Paul” (in Italics), were written on erasures, without any notice in the notary's docquet.

A process of ranking and sale of Gartmore's estates having been brought by the objector, Ferrier, trustee on the sequestrated estate of the late John White, another heritable creditor, the estates were placed under sequestration, and a judicial factor appointed thereon; and the Scottish Union Insurance Company now presented a petition for a warrant on the factor to make payment, out of the rents accumulated in his hands, of certain arrears of the annuities under the bonds above mentioned. To this petition it was objected by Ferrier, that the bond for £1311, as well as the two instruments of sasine, were vitiated by the erasures.

It was answered, that the words written on the erasures were generally immaterial; and, as to those which were of more importance, it was pleaded—

1. The words in the bond written on erasures, if held pro non scripts, are sufficiently supplied by the context, and by the repetition of the clause verbatim in the precept of sasine without any erasure; and besides, the error is not such as to vitiate the document; and, 2. The general enumeration of erasures in the notary's docquet is sufficient to obviate the objection to the erasures in the instrument of sasine on the £1311 bond.

The Lord Ordinary having reported the cause on objections and answers, the Court (28th June, 1834) repelled the objection to the bond; and, as to those to the sasines, appointed minutes of debate, stating, inter alia, what the parties alleged “as to the practice of notaries and others in referring to erasures in instruments of sasine and other solemn deeds.” In their statements as to practice, the parties differed; the objectors alleging, that it was the practice uniformly to specify the particular words written on erasures, while the petitioners alleged that the practice was merely to set forth the number of words written on erasures on each page, as had been done here,—at least, if that number exceeded four or five. In consequence of these conflicting statements, the Court (July 11, 1834) remitted to the Lord Clerk-Register, and his deputies, “to make a return to this Court of the practice of entering the notices of erasures in the docquets of instruments of sasine, as appearing on the general register of sasines, for the last twenty years.”

A report was accordingly returned by Mr Thomson, depute clerk-register, setting forth, “That, having directed a careful examination to be made of that Register, from the 11th day of July, 1814, to the 11th day of July, 1834, consisting of 800 volumes in folio, it has been ascertained that the total number of instruments of sasine and of resignation recorded within that period was 25,313: That in only 196 of the whole number is there any notice whatever of the existence of erasures in the instruments: That in 23 of these cases, the erasures are referred to as occurring on certain pages or lines of the instrument, without specifying the particular words superinduced on such erasures; and that in 173 of these cases the words so superinduced are specially set forth.”

The clauses of the docquets were appended to the report, and from these it appeared that there were only six in which the erasures exceeded ten in number.

Thereafter (February 13, 1835), the Court appointed the minutes of debate to be revised, and laid before the other Judges for their opinion.

While the cause was lying before the consulted Judges, their Lordships, by a note communicated to this Division, requested “that the petitioners be directed to give in a minute, saying whether they are willing to give up the security for the sums in question, in so far as regards the lands of Gartinstarry and Hole;” and the Court accordingly ordered such minute to be lodged. In compliance with this order, a minute was given in by the petitioners, expressing their willingness to have the lands of Gartinstarry and Hole struck out of their security. Thereupon, the following unanimous opinion was returned:—