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Scottish Court of Session Decisions >>
Loch v Dick. [1638] Mor 6278 (26 July 1638)
URL: http://www.bailii.org/scot/cases/ScotCS/1638/Mor1506278-004.html Cite as:
[1638] Mor 6278
Found in conformity with the above. In this case, the granter of the writ was dead, and the reduction was pursued by her heir.
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One Henry Nisbet, burgess in Edinburgh, being owing by bond to umquhile Sarah M'Math 3000 merks, and the said Sarah M'Math having assigned the sum to Janet M'Math, one of her sisters; and the said Janet, and William Dick her spouse, having obtained decreet upon this assignation before the Sheriff, against the said Henry for payment, and James Loch burgess of Edinburgh, who had married another sister of the said umquhile Sarah; and Janet M'Math having intented reduction of this assignation, as done by her after she became furious and fatuous, and during the time of her furiousness and fatuity; and it being alleged, That seeing the party, maker of the assignation controverted is now dead, and no declarator purchased of her disease of madness in her own lifetime before she died; that therefore no such action ought to be sustained upon this reason, now after her death, to have been proved by witnesses, whereas it ought to have been tried while she lived, by a brief and a sworn assize, as is appointed by the 66th act, Par. 8. Ja. 3; and it were a dangerous preparative, to admit any such action, after the party's death to be proved by witnesses; for, so none might be sure of their estates, and thereby heritable rights may be everted by the depositions of witnesses. The Lords repelled the allegeance, and notwithstanding thereof sustained the reason; for the Lords found, that the trial might be taken in this case now controverted (being of a moveable bond) after the party maker's death, and by witnesses, seeing it may fall out, that while the maker lived, the writ might remain obscure and never come to light, and no other has power to quarrel such deeds, nor interest thereto, while they who make the same are living; for furious persons also may have dilucida intervalla, so that all such deeds, except they be done the time of the fury, are not quarrellable.
Act. ——.Alt. Stuart.Clerk, Gibson.
Fol. Dic. v. 1. p. 420. Durie, p. 861.
