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Mr Francis Wauchope of Cakemuir, Advocate, v William Hamilton of Fallahall, and his Tutors. [1711] Mor 5712 (1 December 1711)
URL: http://www.bailii.org/scot/cases/ScotCS/1711/Mor1405712-092.html Cite as:
[1711] Mor 5712
Mr Francis Wauchope of Cakemuir, Advocate, v. William Hamilton of Fallahall, and his Tutors
Date: 1 December 1711 Case No. No 92.
A party using and founding on a decree, determining controverted marches, per modum tituli, in actions at his instance, and against him, was found no homologation of a verbal error in the decree.
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In the process of reduction and declarator at the instance of Cakemuir, against Fallahall, for ratifying a decreet arbitral pronounced in anno 1608, determining the marches betwixt the lands of Cakemuir and Falla, upon this ground, That there was a literal error in the decreet, northwest being written in place of northeast; the Lords found, That the pursuer's using and founding on that decreet, per modum tituli, in actions at his instance, and against him, was no homologation of the marches craved to be ratified; because homologation doth, regutariter, infer a consent to the deed only as it is in rei veritate; and the using a futted account doth not infer homologation of errors in calculo; seeing nihil tam consensui contrarium est quam error. Plus valet quod agitur, quam quod simulate concipitur. And the truth which is instructed by the tenor of the writ, is not impaired by the error, but prevails over it; actorum verba emendare tenore sententiæ perseverante, non est prohibitum, L. 46. D. de re judic. Veritas Rerum Erroribus gestarum non vitiatur, L. 6. § 1. D. de Officio Præsid. Besides, the pursuer founded upon the decreet by way of action and defence to support his claim, according as he now pretended it should have been worded; and actus agentium non operantur ultra eorum intentionem.
