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The Lord Ordinary remitted to the Commissaries to take the proof of the parties; and the pursuers having reclaimed, the Court appointed the parties to argue in cases the question, whether the defender's allegations, that the letter was false, and prepared for purposes of fraud, can be admitted to probation.
Pleaded for the pursuers—1. The proof offered by the defender is inadmissible, because, by the law of Scotland, the effect of a written obligation cannot be taken away by the testimony of witnesses. There are exceptions to this rule, but the present case does not fall within any of them— Ersk. 4, 2, 21— Tait on Evidence , 335.
Lord Meadowbank .—It does not appear to me that this letter, followed by connection alone, would be sufficient. I go merely this length while concurring in the order for a proof; and my only fear arises from the general terms of the interlocutor.
Lord Justice-Clerk .—The pursuer admits that she received the letter antedated. On the other hand, the defender's allegation is, that the letter was delivered and accepted, for the purpose of deceiving third parties. In these circumstances, it is impossible to arrive at the conclusion that the proof offered is incompetent. It ought, however, to be a proof before answer.
The Court , accordingly, varied the interlocutor, by directing the remit to be made before answer.
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