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Scottish Court of Session Decisions >>
Keith v Robertson. [1626] Mor 12271 (29 March 1626)
URL: http://www.bailii.org/scot/cases/ScotCS/1626/Mor2912271-020.html Cite as:
[1626] Mor 12271
An assignation of a false debt found null in toto, and no proof of the time of intimation allowed.
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In an action betwixt Keith and Robertson, an assignation being made by one who was bankrupt to his creditor pursuer, which being intimated to the defender, who was convened for the debt, and the defender offering to improve the same, as false in that date whereof it was when it was produced; and the pursuer answering, That that importation of the date ought not to be admitted to be of that force and consequence to make the whole assignation to fall, seeing the date was not essential, neither was the defender prejudged by the date, the same being of any date before it was intimated; likeas, he was content to abide at the same, as truly done and perfected before the said intimation, which ought to be enough, if he use the same of any date preceding the intimation, seeing the defender had no prejudice, if it be of a date anterior to the intimation, as said is; the Lords found this allegeance of improbation in the date to be relevant, notwithstanding of the answer, and notwithstanding that the pursuer alleged, That he might fill up any date therein as he pleased, before the intimation; which the Lords found could not be changed, being once used and produced of a filled up date by the pursuer in judgment, and being intimated; and so found, that if the defender improved the same in the date, albeit the defender had no prejudice by the said date, yet that it was sufficient to make the whole assignation to fall, seeing of the law, what is found not to be truly done of that date, as it bears and as it is used, must be presumed not to be done at all.
Nam quando non est orta quæstio inter partes, notarius emendare potest ea quæ sunt sui officii per se, ut dies, nomina testium; sed si orta sit quæstio non potest, nisi parte adversa ad hoc citata; ubi autem redarguitur instrumentum falsi, tum post intentionem litis, nec per se, nec per judicem, nec in iis quæ, sunt sui officii, nec in aliis corrigere potest. Lanfr. de Fid. Instr.
Fol. Dic. v. 2. p. 214. Durie, p. 199.*** Kerse reports this case:
In improbations in data, the Lords will give the party user place to abide by the writ of the other date in die, sed non in mense.
