United Kingdom House of Lords Decisions

_________________ Footnote _________________

Now, it is admitted that the word John is written upon erasures, except where it occurs in the testing clause, and that the erased word was James. This erasure occurs in the most important part of the deed, the name of the disponee, and is in every part where this name is; and the sole question is, whether the objection arising from the vitiation has been legally removed by the testing clause? This clause declares, that ‘these presents’ are subscribed by the granter ‘in favour of the said John Kedder, my son,’ and the specification of John in this clause is said by the defender to be a sufficient legal correction of the error and of the vitiation in the body of the instrument, especially as a Christian name was not necessary, and as the deed contains words (such as, ‘residing at Kirkhall, my son’) which adequately denote the person meant. But here the granter, whether necessarily or not, chose to designate his disponee by the Christian name, and has thus made the word essential. Now the testing clause is not only inadequate, but, in reference to legal precedent, it is dangerous as a substitute for the original use of the right name, or as a correction of this essential erasure; because, so far as appears from the deed, there is not enough to exclude the supposition that James may have been the person truly meant,—that this word may have been erased, and John put in after signature,—and that the testing clause may have been made to suit the instrument thus altered; and as testing clauses are generally filled in after subscription, this may often be done. There is said to be a legal presumption, that testing clauses are written before subscription; but any such presumption must be controlled by the circumstances appearing on the instrument. Now the two last words of this testing clause, viz. ‘writer hereof,’ though they were superfluous, have evidently been added after the granter's signature, and by a different hand. But independently of this, the very mode in which the alleged error has been attempted to be corrected, seems inconsistent with the idea that it was discovered prior to subscription; because, if it had been known, it is scarcely credible that it would not have been corrected fully and directly, and by express words, especially as there was a whole page left clear, instead of merely slipping in the word John, without even noticing any erasure. But assuming the clause to have been written before the granter signed, it does not follow from any thing it contains, that the word James had been previously erased. Even ‘the said John,’ which is what the defender relies on, does not establish that there was such a name in the deed at any time; for, that word being on an erasure, is in law not there at all. There are cases where a slighter defect has proved fatal; but none where one so strong has been disregarded. The subsequent filling in of testing clauses being legal and usual, it is impossible not to see the consequences of

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