Scottish Court of Session Decisions

Subject_1 IMPROBATION.
Subject_2 SECT. IX.

Abiding by.

Robertson
v.
Alisons

Date: 7 December 1743
Case No. No 206.

Abiding by qualificate is in desuetude. Abiding by must be simply; but a protest may be taken, containing facts, indicating innocence of accession, which, when proved, will divert the consequences.

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Robertson having charged on a bill accepted by John, Robert, and James Alisons, it was suspended on the following grounds, as to James Alison, that the acceptance was not duly signed by him. Robertson refused to abide by the bill simply, but only qualificate, as to that acceptance, that the bill accepted by James Alison had been brought to him by Robert, who had got the money. It was agreed, that abiding by qualificate was entirely gone into desuetude, for this reason, that, when such practice was allowed, a forger might be secured from punishment, because the fact, or qualification condescended on, might be proved to be true, which destroyed the effect of the abiding by, and yet, in fact, the person not be less guilty. The Court was of opinion, that the person ought to abide by the deed simply, et non qualificate; but under protest, that, notwithstanding of his abiding by the deed as a true one, he might be at liberty to prove the various facts and circumstances, which might shew how the deed, which he believed to be a true one, came into his hands; and, in that case, although the deed should be forged, yet, if the facts and circumstances contained in the protest appeared to be true, the abider by would not be liable to punishment, either as a forger or user of a false deed.

The Lords allowed Robertson to abide by the deed, not qualificate, but under protest.

Fol. Dic. v. 3. p. 313. MS.