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In an improbation a woman using a writ, was not allowed to abide by it qualificate, that it was received in the same state from her husband.
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Katharine M'Millan Lady Logie, having obtained disposition from Mr John Hay her husband, pursues Meldrum as nearest of kin, for delivery thereof, who proponed improbation; and the pursuer being ordained to bide by, offered to do the same in these terms, that “ she truly received this disposition, as it now stands, from her husband;” and the Lords are in use to admit of such qualities. It was answered, That albeit the Lords admit qualities to singular successors or heirs, yet never to persons who immediately receive the writ in question, which would encourage all forgeries; for in all cases that may be pretended; but if the writ shall be found forged, and the pursuer be pursued criminally as a forger or accessory, by using of the writ, she may then allege and prove that she was innocent, having received the writ as it is from her husband; but it is not competent to lead a probation upon it here, neither is it presumed or probable in any case, that a husband would truly deliver a writ assigned by himself, when it was forged.
The Lords refused to admit the quality.
Fol. Dic. v. 1. p. 455. Stair, v. 2. p. 330.*** Dirleton reports this case:
A disposition being granted by a husband to his wife of moveables, and she, in an improbation of the same, being urged to abide thereat; and offering to abide at the same as a writ truly delivered to her by her husband, the Lords found, That she ought to abide at the same simpliciter; and though such a qualification may be allowed to strangers and singular successors, who may be in bona fide to take assignations to writs; yet wives, and conjunct persons and relations, are in a different condition; seeing they are presumed not to be ignorant of the deeds and transactions of their husbands and relations.
Reporter, Newbyth.Clerk, Monro.
Dirleton, No 265. p. 128.*** The same case is also reported by Gosford:
In an action of exhibition and delivery of several moveable bonds at the instance of Mary and Isobel Meldrum, as nearest of kin to Mr John Hay of Logie their uncle, against Katharine M'Millan his relict, it was alleged, That she could not exhibit, because she had a disposition from her husband of all these bonds and others called for in the exhibition; which disposition being produced, the pursuers offered to improve the same and consign, and craved that the defender might be decerned judicially to abide at the verity of the said disposition under the pain of falsehood. It was alleged for the defender, That she was content to abide by the verity of the said writ, as being truly delivered to her by her husband, but no otherwise. It was answered for the pursuer, That she ought to abide by the verity of the said writ, since she made use thereof as a true writ, so that if it were improven, she ought to incur the pain of falsehood. The Lords did find, That the defender, being wife to the granter of the disposition, in making use thereof, she could not but know of the verity of the said deed, and therefore ought to abide at the truth of the deed itself, and that the quality that it was truly delivered, ought to be rejected as being only competent to a singular successor.
