EFFECT OF CLERICAL ERRORS. TESTAMENTARY alterations were made before, or at the time of, subscription; nor that they were the immediate result of the directions of the maker of the deed. This was attempted in Reid's case, and Lord Corehouse, Ordinary, who seemed disposed to have sustained the deed, was in favour of allowing the proof, but the Court refused; and it is settled law that such evidence on the above point is inadmissible.' The next point we have to consider is the effect of the alterations in deeds, not being holograph testamentary writings, when unauthenticated. When there is no room to suspect fraud, the alterations will in general be held pro non scriptis. The correction of mere clerical errors will be of no importance; but I will not venture to define what is necessarily to fall under that description. A word which, in one deed, is quite immaterial, may be of importance in another. But there are various cases in which corrections have been held as clerical and venial, and therefore not militating against the authenticity of the deed. If the blank or deficiency, occasioned by holding the words in the alteration pro non scriptis, is not of material consequence as regards the subject-matter of the deed, the deed will remain effectual notwithstanding. A case of this kind occurred where the word 'pages' was, in whole or in part, written on erasure in a testing clause. The word was not essential, and the deed was sustained. The general rule applicable to questions arising upon erasures in such deeds is explained by Lord Newton, Ordinary, in a Note to his Interlocutor in Morrison's case. Cases arising upon interlineations have been settled on like principles. In Lawson's case, the surname of the raiser of an inhibition had been omitted, and was interlined in the execution, which, as at first written, contained his Christian name only. The document was inspected by the Court, who found it no superinduction upon another name, which would be a suspicious razure and vitiation, but only a mere omission of the surname, which was supplied by interlining it.' If in the two cases noted the corrections had been made by erasures (unauthenticated, as the interlineations were), it is probable that the writs would have been reduced. It is to be observed, however, in reference to testamentary deeds, even though not holograph, that deletions and alterations made by the granters themselves, whom of course there is no room to suspect of fraud, will not annul the deeds as a whole, if the testator's purpose does not appear to have been so to annul them; and if the deeds, as altered, contain a good and effectual expression of the testator's will or intention. On these principles, deletions were allowed effect, and the deeds in other respects, and so far as not altered, were sustained, in the cases of 1 Shepherd, 24th Jan. 1844, 6 D. 464; Pittillo, 22d Nov. 1671, M. 11,536. 2 See in particular, Wood, 13th Nov. 1838, 1 D. 14. 3 Morrison, 30th June 1829, 7 Sh. 810. 4 Lyon, 21st Dec. 1709, M. 11,544; and Lawson, 14th Dec. 1697, M. 11,541. 2 WRITINGS. Kemp and Earl of Traquair. And superinductions on erasure, made HOLOGRAPH by the granter of a holograph testamentary, and, of course, undelivered TESTAMENTARY deed, have been held valid, notwithstanding the erasure. On the same principle, the Court expressed an opinion that a legacy of £500 was not vitiated by the word 'five,' describing the number of hundred pounds bequeathed, being written on erasure, in respect that the superinduced word was holograph of the testator, although the rest of the deed was not holograph, but was written by a third party, and the deed was regularly tested, and contained no notice of the erasure. The judgment in this case was reversed, but not as regards the above point. I may notice, however, that Lord Jeffrey doubted the application to this case of the rule of law in regard to alterations in holograph testamentary writings. He appeared to hold that the word superinduced by the testator in a writing by another hand, ought to be specially authenticated by the testator, and is neither authenticated by being holograph, nor by the original subscription of the document. 3 4 Again, it was decided in the House of Lords, in the Morgan succession case, that certain holograph documents, though in several places erased and obliterated, were nevertheless probative and testamentary, and contained a good and effectual expression of an intention to establish, in Dundee, an hospital to accommodate a certain number of boys. The House of Lords' report contains a facsimile of the documents, and the case can hardly be well understood without inspecting this. But, on the general effect of obliterations and deletions in testamentary holograph instruments, it was observed, that between what is 'written and what is obliterated there is this distinction, that what is 'written must have been intentional, while what is obliterated may ' have been accidental.' The question is not what the testator intended to do, but what is the meaning of that which he has actually written, and suffered to remain unobliterated. Whatever has been purposely obliterated, is undoubtedly deprived of all testamentary effect; but it may be used to show what the testator knew when he wrote it, and also what was his will at the time, though he had since revoked it; and a strong opinion was expressed that the Court are at liberty to look at the erased words, for the purpose of seeing what the writer had at one time intended. On this point, that is, the question of the intention to cancel (for, in regard to testamentary writings the question always is as to the intention), the law of England and that of Scotland do not materially differ, if they differ at all; and it may interest you to read the opinion of Lord Chief-Justice Mansfield in an English case, referred to by the Lord 1 Kemp, 2d March 1802, M. 16,949; and Earl of Traquair, 26th June 1822, 1 Sh. 527. 2 Robertson, 20th December 1844, 7 D. 236. 3 Grant, 27th Feb. 1849, 11 D. 860. 4 Magistrates of Dundee, 1st May 1858, 3 Macqueen, 134, reversing the judgment Chancellor in delivering judgment in the Morgan case. Lord Mansfield says, 'If a man were to throw the ink upon his will, instead of the sand, though it might be a complete defacing of the instrument, it would be 'no cancelling; or suppose a man having two wills, of different dates, 'by him, should direct the former to be cancelled, and, through mistake, 'the person should cancel the latter, such an act would be no revocation ' of the last will; or suppose a man, having a will consisting of two 'parts, throws one unintentionally into the fire, where it is burnt, it 'would be no revocation of the devises contained in such part. It is the 'intention, therefore, that must govern.' And Dr. Lushington says, Burning or tearing a will, without intention, could not revoke the instrument, or any part.' But holograph writings have no exceptional privileges as regards erasures or other vitiations made, or which may have been made, after they are delivered. Upon delivery, such deeds, as regards that matter, are on precisely the same footing with ordinary deeds. In holograph deeds, therefore, independently of any suspicion of fraud, a vitiation in substantialibus, if made after delivery has taken place, or may have taken place, will be fatal to the deed; or will render the clause, or part in which it occurs, inoperative, according to the circumstances of each case. Thus, in Reid's case, where the Christian name of the disponee was written on erasure throughout the body of the deed, and only once free of erasure in the testing clause, the deed was reduced. The erasure was in that case in essentialibus. On the same principle, when the designation or description of the first substitute under an entail was written on erasure wherever it occurred throughout the deed of entail, the deed was reduced as vitiated in substantialibus.1 In Boswell's case,2 a deed of entail prohibited the heirs from selling or disponing the estate, either irredeemably or under reversion. The portion 'irred' of the word 'irredeemably' was written on erasure. Without these letters the word was not a negative; and it was held that there was no prohibition against an irredeemable sale or alienation. And when the words 'not be lawful,' in the prohibition to alter the order of succession under an entail, were written on erasure, the entail was held as containing no prohibition on that essential point, and so inoperative.3 Partial erasures or deletions, however, even though in words or clauses which, to certain effects, are inter essentialia, do not necessarily vitiate or annul the whole deed, if no fraud is alleged. The entails in Boswell's and Fraser's cases were good as conveyances of the estates, and in all other respects, except as regarded the clauses affected by the vitiations. A precept of sasine, falsified in the name of one parcel of lands, sine fraude aut culpá of the party, was sustained as to the other lands, and reduced only as to the 1 Shepherd, 24th Jan. 1844, 6 D. 464, affirmed 21st July 1847, 6 Bell's App. 153. 2 Boswell, 31st January 1852, 14 D. 378. 3 Fraser, 11th March 1854, 16 D. 863. particular lands erased.' And where the whole of a precept of sasine was written on erasure, and the erasure unauthenticated, the Court refused to reduce more than the erased clause. Again, fraud not being alleged, a Crown charter, in which an important word was written on erasure, was similarly dealt with, the Court refusing to reduce the same in toto, and only holding the word written on erasure pro non scripto.3 But if fraud is an element of the case the result will be different. FRAUD. Where the grantee altered the date of a mortis causâ deed after the testator's death, the Court held the vitiation in the date an insuperable objection, and reduced the deed; although, with its original date, it would apparently have been sustained. The Lord President Campbell said, 'A partial manufacture in the date must have been for a fraudulent purpose.' He held the deed as having been executed at the last moment of life, when apparently the granter had not capacity to execute any deed.* Fraud will be presumed where the vitiation is in an essential clause or part of the writ, and also in the case of the deletion in an ordinary deed where the words deleted cannot be read. I have recommended that, in authenticating deletions, the words delete should be quoted; and in that case certainly the deletion should be made in such a manner that the words can be read, in order that they may support the quotation. The deletion, if it could not be read, would, in such case especially, suggest suspicion of fraud. But deletion, in any case, is apt to create suspicion, or at least to call SUSPICION. for explanation. In the cases of Cuming, the Earl of Traquair, and Kemp, the words delete could be read, and they were thus seen to be not in substantialibus with reference to the deeds as a whole. On the other hand, a bond was reduced, in which, in a material part connected with the term of payment, there was about half a line obliterated, so that it could not be read. Consequently it was presumed that it might be a clause that would evacuate the bond, and had been delete on that account by the holder.5 We have also a case of vitiation of a disposition by deletion of two lines, immediately following the description of lands, so completely that it was impossible to discover what had been written upon them. Lord Mackenzie, Ordinary, said, 'The deletion had not the least appearance of anything else, but being intentionally done to get rid of the true 'description of the subjects disponed.' Such a case as this strongly illustrates the value of the rules of law in force as to the authentication of alterations. But it is not necessary to establish fraud, in order to the ALTERATIONS in reduction of a deed which is vitiated, even where the words delete are left legible, if they are inter essentialia. It was so decided in a case7 where a disposition was reduced, apparently at the instance of a creditor of the granter, because two lines, expressing the onerous cause No. 3; affirmed 17th March 1806, 5 Paton 101. 1 Keir, Feb. 1597, M. 17,062. 3 Adam, 12th June 1810, F. C. 4 Merry, 6th Feb. 1801, M. App. Writ substantialibus. MARGINAL ADDITIONS. 1 of granting, were wholly delete. Again, in another case, the alteration of the letter 'i' into 'y,' in the subscriptions of an affidavit and relative mandate, were held as showing that the subscriptions had been tampered with; and the writings were held improbative. The rules of law applicable to the authentication of marginal additions are the same as those connected with alterations made by erasures or otherwise. The usual manner of authenticating a marginal addition as part of a deed, is to connect it with the body of the deed by the mark called a caret,' or by a x inserted, so as readily to catch the eye, at the place where the addition is to be introduced, in reading the deed,— a distinct mark, of precisely the same description, being made at the commencement of the addition written on the margin. The addition is then signed along with each page of the deed, the party writing his Christian name on the one side and his surname on the other side of the addition. The testing clause, in such cases, mentions that the deed consists of so many pages, with a marginal addition on such a page, all written by A. B., etc. The clause, being completed in usual form, thus names and designs the writer of the marginal addition, as well as of the body of the deed, and mentions that the addition, as well as each page of the deed, is signed by the granter in presence of the witnesses; all which being regularly done, the marginal addition is made part of, and is equally probative with the rest of, the deed. Where the addition is in a different hand, it is equally necessary to design the writer thereof as the writer of the body of the deed. The instrumentary witnesses must be mentioned as witnesses to the signing of the marginal addition, as well as of the body of the deed;2 and, when notaries act for the party, I have advised that the warrant to them should apply not merely to the deed generally, but likewise to the marginal addition expressly. It is not to be understood, however, that there is any exclusive mode, or set of modes, in which marginal additions are to be authenticated. In the case of Bruce, the Court of Session sustained a marginal addition, not fully authenticated, on the ground of homologation. The House of Lords, in affirming the Court's decision, struck out that special ground, and found generally that matter has been alleged sufficient to answer 'the objection to a conveyance of lands, contained or described in mar'ginal additions only, that such marginal additions were not tested in ' terms of the Act 1681.' I must also notice here two reported cases, in which, at first sight at least, it does appear that effect has been allowed to marginal additions, not authenticated further than by the signatures of the granters of the deeds. But a careful examination of Cuming's case will show that it 1 Murray, 15th Nov. 1856, 19 D. 44. 4 Cuming, 18th April 1721, Robertson's App. 364, and Spottiswood, 17th June 1741, M. 16,811, and 5 Br. Sup. 709, See also 1 Craigie & Stewart, 284. |