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In an action for delivery of a house, pursued by Dickson, heir to the heritor thereof, against Dickson his relict, who defending herself with a charter made to her of the house libelled during her lifetime by her husband; the Lords sustained that exception upon the charter against the heir who was pursuer, albeit no sasine had followed thereon in the maker's lifetime. And it being further replied by the pursuer, that that charter could not furnish any defence to the relict, because it remained ever in the defunct's hands and keeping, so long as he lived, and was never delivered to her, nor became her evident in her husband's lifetime, but being amongst the defunct's other writs the time of his decease, was after his decease found amongst the defunct's writs then intromitted with by her; which reply the Lords found relevant to be proved by the defender's oath, albeit she alleged, that the reply was not relevant, and that she ought not to be compelled to give her oath, how that writ came in her hands, seeing the same being now in her hands, and being an evident made in her favours, it was sufficient to her, either to produce action thereon against the heir of the maker, or to defend her against the heir's pursuit, seeing the same was never revocated by her husband, and that he had done no deed before his decease to derogate thereto; which duply was repelled, and the said reply was found relevant.
Act. Craig.Alt. Hope & Belches.Clerk, Gibson.
Durie, p. 322.
