Scottish Court of Session Decisions

Subject_1 PRESUMPTION.
Subject_2 DIVISION XII.

Presumption, rite et solenniter actum.

Barclay
v.
Irvine

1586. November.
Case No. No 288.

The principal letters, of horning having some words added on the margin, and an extract thereof wanting these words, the extract was found to bear more faith than the principal, the presumption being, that the words in question were added ex post facto.

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There was one Barclay that pursued Irvine, the goodman of and certain others his colleagues, for the ejection of him forth of house, and spoliation of certain goods and gear. It was answered by Irvine, that the pursuer was lawfully denounced rebel, and put to the horn, and the gift of his escheat disponed, and letters passed thereupon, and so, if the defender had any intromission with the said goods, not granting the same, the same was done auctore prætore. To this was answered, That the horning, with all that followed thereupon, was reduced, by reason that the pursuer was put to the horn for not finding of lawburrows, according to the act of Parliament, to one Peter Craick; and true it was, that the said Peter Craick never made faith that he feared him bodily harm; as the extract of the horning given forth by the Sheriff-clerk made no mention of the offering of faith that he dreaded bodily harm. To which it was answered, That the defender was never called to the reduction; and as where the reason of reduction was, that there was no faith made to the officer, the defender offered him to prove, by the principal letters of horning, and executions thereof, and, if need be, by the witnesses insert, that the said Peter Craick made faith, and the principal letters, as the original, ought rather to make faith, than the said extract, which was but exemplum exemplatum et secundum Bartol, in L. Semptonius, D. De legatis, quandocunque est diversitas inter exemplum et originale stabitur originali. To which it was answered, That, in so far as the principal letters, and not the extract, were alleged to be the original, it was not of truth in this case; because the words, ‘offered to make faith,’ were put in the margin, and not in the body of the letters, and were tanquam instrumentum reformatum, et juxta Bald, pulcherrime disputantem in authent. Si quis in aliquo, C. De edendo, si notarius ex proprio originali sumpserit exemplum et authenticat, non dicitur exemplum sed originale; and so the extract given forth by the Sheriff-clerk behoved to be holden as authentic, as the principal letters and executions were margined, the extract was more authentic than the principal letters, and that in consideration of the writ in the margin.

Fol. Dic. v. 2. p. 161. Colvil, MS. p. 410.