Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1870/07SLR0538.html
Cite as: [1870] ScotLR 7_538, [1870] SLR 7_538

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SCOTTISH_SLR_Court_of_Session

Page: 538↓

Court of Session Inner House First Division.

Wednesday, June 15 1870.

7 SLR 538

Thoms, Petitioner.

Subject_1Deed — Clerical Error — Alteration of Testing Clause — Instrument of Disentail — Record — Officer of Court.
Facts:

An application for authority to alter the spelling of the name of a testamentary witness in the testing clause of a deed of disentail which had been recorded, refused, on the ground that it was a private deed, and that the clerical error had not been committed by an officer of court or public official.

Headnote:

This was an application to the Court to grant warrant to the petitioners to correct an instrument of disentail by altering the spelling of the name of one of the testamentary witnesses. The said deed had been recorded in the Register of Tailzies.

Shand, for them, founded on Heddle, 1 D. 267; Gilmour, 1 D. 467; Brown, 2 D. 1467; Rowe, 1 st March 1849, 21 Jur., p. 309.

Page: 539↓

At advising—

Judgment:

Lord President—am for refusing the prayer of this petition. The precedents much relied on by Mr Shand are not in point. All that they establish is, that when a clerical error has been committed by an officer of court, or any other public officer, the Court have the power to order that clerical error to be rectified. But in this case the error has not been committed by a public officer, but by one of the parties to the deed, or his agent, and consists in a wrong spelling of one of tire names in the testing clause. Now, it is not for the Court to anticipate what may be the effect of this mistake, but in my opinion they have not the power to order an alteration to be made upon a private probative deed upon the mere allegation of a clerical error. And if they had such power, in my opinion it would not be expedient that they should exercise it.

Lord Deas agreed with the Lord President, that if this were a private deed the Court had no power to authorise any alteration, but it certainly raised a difficulty in his mind that this deed was executed by the parties on an application to the Lord Ordinary for disentail, and he would like to consider a little more carefully this peculiarity.

Lords Ardmillan and Kinloch concurred with the Lord President

Lord President—It is of importance to observe that this deed was executed previous to the presentation of the petition for disentail.

Counsel:

Agents for Petitioner— Hill, Reid & Drummond, W.S.
1870

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