Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Fairholm
v.
Hume

Date: 24 June 1630

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An obligation of £200 being desired to be registrat by the creditor against the heir of the debtor; who alleged it was null, because it was made by the alleged debtor, on his death-bed, at which time he could not burden the heir, who was now pursued, and which was instantly verified by the pursuer's own title produced; for it was subscribed by a notary for the alleged debtor, bearing to be so done, because of his great sickness, which rendered him unable to subscribe himself; likeas the charge produced by the pursuer, whereby he had charged the defender to enter heir to him is raised and executed within four days after the date of the bond: And the pursuer replying, that this nullity could not be received hoc ordine, sed per viam reductionis;—the Lords found that this was receivable, via exceptionis, without further process, being instantly verified by the pursuer's own writ. And it being also alleged, that the bond was null, being above 100 pounds, and subscribed only by one notary,—the Lords found the same null also for that cause; albeit the pursuer alleged, that it was a bond made by one who could write, but, in sickness, not being able to write, was supplied by a notary for him, and which was done on his death-bed, and so ought to have force. Which reply was rejected, seeing the bond was used as a writ made by form of obligation, and so ought to have the solemnities requisite; and was not used as a deed depending on the form or act of a testament, in which case it behoved to have been confirmed, and pursuit intented upon that ground; and so the obligation was found null.

Act. Cheap. Alt. Craig. Hay, Clerk.

Page 521.