Found in conformity with No 197. p. 6768. that a party must abide by a messenger's execution, sub periculo falsi, although he may protest as to the way he received it.
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In a reduction ex capite inhibitionis, at the instance of John Blair against Logan, the defender having offered to improve the execution, the Lords ordained the pursuer to abide by the same simply, sub periculo falsi, and would not suffer him to abide by with this quality, that he found the inhibition and execution among his father's writs, in a process of ranking of the Creditors of Sir Godfrey M'Culloch, but allowed him to protest, at his abiding by, upon any quality he thought fit.
Albeit it was alleged for the pursuer, That the inhibition was executed and registered in the year 1685, when he was an infant an year old, and never objected against in his father's lifetime, by the defender compearing in the process aforesaid, where it was produced. And, in the opinion of the Lord Stair, Instit. lib. 4. tit. 20. sect. 19. abiding by qualificate is allowed; which is confirmed by decisions, February 5th 1635, Ker against Forsyth, No 173. p. 6750; July 24th 1661, the Laird of Lamerton against the Earl of Leven and Kennedy, No 174. p. 6753. Nor was it ever otherwise decided, except where the producer of a writ lay under some jealousy of accession to the falsehood. This is also agreeable to law and equity; because, no man can, by his own consent, subject himself to the pain of any crime he is not guilty of, or accessory to. Law never makes the using of a false writ unwittingly, et sine dolo, to be a crime; yea, the Lords are so far from finding it criminal to use a false writ, without being conscious of the falsehood, that a forged assignation was sustained a sufficient title of bona fide possession, against repetition of what was consumptum, Jan. 18th 1677, Dick against Oliphant, No 11. p. 6548. Now, though this execution were false, the pursuer could not possibly have been accessory thereto, seeing it was registered as soon as he was born.
In respect it was answered for the defender, 1st, A qualified abiding by was never allowed to an heir or assignee, unless the cedent, or some other party concerned, offered to abide by simply, July 14th, 1680, Gray against Robertson, No 188. p. 6763; Jan. 3. 1666, Jack against Bryan, No 175. p. 6754, which is the meaning of the citation out of my Lord Stair's Institutions. For, qui falsum recitaverit tenetur in crimen falsi subscribere, Tit. D. ad L. Cornel. De Fals. And where the user of a false writ abides by the same after it is quarrelled, dolus malus is presumed ex reipsa. This is confirmed from the practique afore said, betwixt Ker and Forsyth, February 5th 1635, No 173. p. 6750, and that betwixt Lamerton and the Earl of Leven, July 24th, 1661, as observed by President Gilmour, No 174. p. 6753.
