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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> George and Patrick Walker v. Gibson [1814] UKHL 2_Dow_270 (20 April 1814)
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Cite as: [1814] UKHL 2_Dow_270
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SCOTTISH_HoL_JURY_COURT
Page: 270↓
(1814) 2 Dow 270
REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS.
During the Session, 1813–14.
53 Geo. III.
SCOTLAND.
APPEAL FROM THE COURT OF SESSION.
No. 16
v.
WRIT. — EX FACIE VITIATION.
Name of one of the attesting witnesses in a deed appears to be written on an erasure, and the word witness subjoined is in a different hand-writing. This is an ex facie vitiation in substantialibus, though the witness deponed to the name being his writing, but recollecting nothing farther about the circumstances.
Deed.
This was an action of reduction to set aside a commission or deputation granted Dec. 23, 1791, by Lord Ballenden, then heretable usher and doorkeeper of the Treasury and Exchequer, to the Appellants, of the office of deputy usher and doorkeeper of the Exchequer Court, on the ground
Page: 271↓
Alleged vitiation.
The alleged vitiation consisted in this, — 1st, That the name Charles Cummins, one of the witnesses, was written upon an erasure so complete that it was impossible to discover what had stood in the place before. 2d, That the name Charles Cummins was written in a different ink from the subscription of Lord Ballenden and William Downs, the other witness. 3d, That the name Charles Cummins was written in a different hand, and with a different ink, from the word witness subjoined to the name.
After the cause had been stated in mutual memorials, the Ordinary, ( Cullen,) by interlocutor, July 11, 1807, at the suggestion of Defenders, and with consent of Pursuers, allowed Defenders, “before farther answer, to take the oath and deposition of Charles Cummins as to his having witnessed the deed in question, and adhibited his subscription to the same.” Charles Cummins was accordingly examined by the Ordinary himself, and deponed that he was perfectly certain the name Charles Cummins was in his hand-writing, though satisfied, from inspection of the deed, that there must have been an erasure in the place; that he did not recollect the deed itself, nor the circumstance of subscribing it; that deponent, from his official situation, (Clerk in the Exchequer in London,) was frequently called upon to witness various deeds; that, as a man of business, he certainly would not subscribe a deed which he did not see properly executed by the principal party; and that, though deponent
Page: 272↓
Deed adjudged to be vitiated in substantialibus.
The Court, (Second Division,) on report of the Ordinary, Jan. 26, 1809, sustained the reasons of reduction founded on the ex facie vitiation in substantialibus of the commission, and adhered, June 17, 1809. From these interlocutors an appeal was lodged.
Sea Box of Queensferry, Jan. 7, 1732. — Ersk. b. 3. t. 2. s. 23.
Dict. voce Writ.
Argued for Appellants,—1st, Every alteration was not a vitiation, and here every thing essential was in the deed. Case turned on appearance of erasure and evidence of Cummins. The appearance suspicious, but evidence of Cummins did away the suspicion, (Stair, b. 4. t. 4. s. 19.—2 Dict. 152, and cases there collected.) 2d, Nothing in statute of 1681, cap. 5, to show that witness must subjoin word witness to his name in his own hand-writing. ( Lord Eldon (Chancellor.) They say that another person subscribed as witness before erasure, that Cummins afterwards signed, and found word witness ready to his hand.) That was no objection. ( Lord Eldon (Chancellor.) Whether the subscription of principal party must not be executed, or acknowledged, before both witnesses at the same time?) That was not necessary; but here there was no evidence that it had not. 3d, The evidence of Cummins was sufficient to prove that he had seen the principal party subscribe, or acknowledge his subscription. ( Young v. Glen, August 2, 1770.— Sibbald, Jan. 18, 1776.— Frank, March 3, 1795.)
Page: 273↓
Bell's Lect. p. 228, referred to as evidence of the general understanding and practice.
Patullo v. Forrester, Nov. 22, 1671. Morr. Dict. voce Proof.
Argued for Respondents,—1st, Clear that the deed was vitiated in material part. Attestation there equal to a deposition on oath, and as essential as execution by principal party. Forgery not imputed; only an attempt to remedy a blunder, but this fatal to the deed. No case cited on the other side of erasure of a witness's name, and another written in the place,—no case bearing upon the present. 2d, Proper that word witness should be subjoined in witness's own hand-writing, to show that he subscribed as such, and not in any other character. That was peculiarly requisite, where attestation was equivalent to deposition on oath, (Bankton, b. 1. t. 2. s. 41.) 3d, Cummins's testimony taken before answer, and therefore without prejudice to any legal question. A deed ex facie vitiated in substantialibus is void, and evidence of Cummins could not help it. Cummins was examined merely to show that the subscription was not a forgery, to preserve his evidence in case of a criminal charge. 4th, Evidence, if to be received, rather proved Respondent's case. Witness only said that the name on the erasure was his writing, but he did not at all account for the erasure; he knew nothing about it, and the presumption still remained. 5th, Witnesses must together see party subscribe, or own subscription, otherwise they do not attest same date of subscription or acknowledgment, and there is no legal execution of deed before two witnesses. Presumption here was, that this deed was not so executed, and evidence of Cummins did not rebut that presumption.
Page: 274↓
Leach and A. Murray for Appellants; Adam and Romilly for Respondents.
Judgment.
Judgment affirmed.
Solicitors: Agent for Appellant, Richardson.
Agent for Respondent, Campbell.