Scottish Court of Session Decisions

Subject_1 IMPROBATION.
Subject_2 SECT. IX.

Abiding by.

Mr James Stuart
v.
The Laird of Lamont

Date: 27 January 1697
Case No. No 197.

An execution of a summons being challenged as being forged, the defender offered to abide by qualificate, that it was as received from the messenger. Obliged to abide by simply, but he might protest.

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Mr James Stuart advocate pursuing the Laird of Lamont for a debt, the defender offers to improve the executions of the summons, and craves the pursuer may abide at the verity of the same; he offers to do it qualificate, that he truly received it so from the messenger. Answered, If this were allowed, it would open a manifest door to all forgeries, for the user would always escape. Replied, In writs signed by parties, this is not to be allowed; but where it is done by a third party, it is hard that one should answer for a messenger's knavery whom he employed, seeing they find caution for their fidelity, and are liable; and in Wallace against The Viscount of Kingston, supra, the Lords found a party, producer of a notar's instrument, no farther obliged, but to abide at it as truly delivered to him. The Lords ordained him to abide at it simply; but allowed him to protest that he should be no farther liable, unless his accession were proved; and the Lords at advising would consider how far his protestation should liberate him of the hazard of falsehood, as an user.

Fol. Dic. v. 1. p. 456. Fountainhall, v. 1. p. 760.