Scottish Court of Session Decisions

The pursuer maintains that the letters of horning are here not mere warrants or accessories of judicial procedure, but truly grounds of debt, inasmuch as the accumulation of debt and interest into a capital sum, itself bearing interest, was of the nature of a creation or constitution of a debt to the extent to which the quality of bearing interest was conferred upon what, being itself interest, was incapable in law of bearing interest without an accumulation.

This question appears not to be unattended with difficulty, as is an ultimate question dealt with between the parties as to the extent to which the objection, if well-founded, would go. It has appeared to me that it is not necessary, in the present case, to determine that question, being of opinion, upon the best consideration which I can give to the matter, that the objection to the letters of horning, even if it were true that the words referred to by the pursuer had been actually inserted between the signeting and recording, is not sound.

I hold that these words were in themselves immaterial, and I fail to find any allegation which can bring the case under the category of a tampering with the signeted writ by the defender, or by any party whose act he is said to have authorised. The allegation is one as to a simple fact. An addition is said to have been made to a part of the letters forming the blank, but the pursuer does not undertake to prove the party who made it, nor any single matter unconnected with the simple fact. It may have been made for aught that is averred in the Record Office, and by a party whose act can in no sense whatever be represented as the act of the defender.

Are the alleged alterations material? It is impossible to say that an absolutely insignificant word being inserted by a party who might be unconnected with the defender could vitiate the instrument. If the alteration was immaterial, leaving the whole substance of the letters entire and complete without them, and introducing no contradiction between different parts of the instrument, I do not see how it can operate as a ground of reduction of the diligence.

The portion of the letters in which the addition occurs is in a narrative of something said to have been done by Alexander Smyth. He is said to have granted a bond for £300, and to have executed a disposition of certain subjects in Dundee. This portion of the letters is merely narrative. The important portion of the letters is where the messenger is directed to command and charge “the said Alexander Smyth.” The designation of Alexander Smyth is to be sought for in the preceding part of the instrument, as it appears to me if the preceding part of the letters affords complete elements for identifying Alexander Smyth, it is sufficient. Now the Alexander Smyth so spoken of was late— i.e., at one time or formerly—a merchant in in Dundee, but he is also described as granter of the disposition in security over two shops, one facing the cross, the other on the west side of the High Street, the second being part of a great tenement of land there, and both described by their occupants at the date of the bond, and therefore as proprietor of these subjects. The place of present residence is not a guide to the messenger. Where it is introduced in description it is an element of identification only. The messenger must find out for himself where the party charged resides, and serve at the true place of residence at the date of the service. I think the description complete without the addition, and therefore I hold the addition which is not inconsistent with the truth or the remaining portion of the instrument immaterial.

The words upon the fourth page of the print are similarly immaterial.

I agree that the links connecting the party who is to charge the original creditor must be set out. The first connecting link is very explicitly stated on page 2, E F. The party is said to have acquired right, inter alia, by a cognition and sasine in favour of Peter Chrystal.

The reference is precise. In the portion of the letters 4 B, the “said” documents are said to have been shown and to have “testified” to the Lords of Session. The word said applies to each of the specified articles and to the “cognition.” There is no other previously referred to, and “said cognition” must mean the only one previously mentioned. But this is not all, for in the close of the instrument there is a separate recognition of the fact that that very instrument had been exhibited to the Lords. “Because the Lords (p. 5, B) have seen the instrument of cognition and sasine in favour of Peter Chrystal.”

Two cases were cited—1st, Eglinton v. Flowerdew, 20th July 1849, 11 D. 1486; 2d, Wilkie against Flowerdew, 5th March 1850, 12 D. 818. Neither is in point. In Eglinton's case a blank in the date of a completed title was filled in by the insertion of a date actually posterior to the date of the summons in which the blank occurred, and in the other the alteration was in an essential matter.

Proof of such allegations at such a distance of time, and with a possession assumed and held during the ancestor's life and continued since for so long a period and unchallenged is most unfavourable. This observation would probably apply more legitimately in weighing the evidence when led than in refusing to admit it, but it is satisfactory to find that there are grounds for rejecting it.

Further, in the execution it is said that the three initial letters of the word Alexander are written upon erasures. The name occurs twice in the execution. The messenger leaves his copy of charge with the said Alexander Smith “within his dwelling-place at Croll's Rocks in or near Dundee,” the word being entire. The letters if not read would not prevent a party reading it from knowing the true name. The subsequent reference corrects it. In giving this opinion I do not acknowledge that after twenty years the execution can be impeached.

It thus appears to me that the defender is entitled to absolvitor in so far as relates to the various documents sought to be recovered from him as instructing his right to the bond and disposition in security and to the adjudication.

Lord Cowan concurred. He was rather of opinion that the letters were grounds, and not warrants, as but for them there was no authority

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