Effect of a latent deed, never acted upon during the lives of the writer and witnesses.
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Janet Gaw having charged the Earl of Weems for payment of a sum of 2800 merks, contained in a band granted by the late Earl of Weems and this Earl, to her husband and her, the Earl proponed a defence of improbation; which being heard by the Lords, they did declare the bond to be no authentic probative writ on these evidences, that it bears “to be granted in anno 1632, without annualrent, and that nothing followed thereupon till now, that the writer and all the witnesses insert are dead; and that by comparison with a contract of the same date, and betwixt the same parties, the same writer and witnesses, it is evident that the hand-writing of the body, and all the subscriptions, are palpably different, and that the subscriptions of the parties and witnesses in this bond do clearly appear to be one hand-writing;” so that it appears this hath been a copy.
And yet the Lords, for clearing the matter before answer, took the Earl of Weems' oath, who denied the subscription, or the granting of this bond; but the Lords considering that this bond was made use of by the pursuer, having found it amongst her husband's writs, though she abode by that, yet it should import no criminal effect against her.
