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Scottish Court of Session Decisions >>
Lord Balmerino v Earl of Airlie. [1670] 2 Brn 445 (20 February 1670)
URL: http://www.bailii.org/scot/cases/ScotCS/1670/Brn020445-0752.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Lord Balmerino v. Earl of Airlie
Date: 20 February 1670
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In the reduction of the disposition of the whole estate of Couper, made by the deceased Lord Couper, in favours of his lady, now Lady Lundors, pursued by my Lord Balmerino contra the Earl of Airlie; found that the reason of lectus ægritudinis was a privilege not personal, nor competent only to the apparent heir; but it was real, and competent likewise to the creditors of the apparent heir, who had comprised from him, as lawfully charged to enter heir. In this process also there was a large debate anent the nature of my Lord Couper's sickness, the time of his making the right aforesaid in favours of his lady; and whether the coming to kirk and market was the only allowable presumption in law of health, or if sanity might be made out by acts equipollent to going to kirk and market: the Informations whereof I have set down at large. Upon thir debates, the Lords have not as yet given their interlocutor.—There was a practique founded on, in the 1647, betwixt Syme and Grahame, which stumbled the Lords: which was that they found a man's writing of two sheets of paper sensibly, and to good purpose, sufficient to sustain a disposition of his heritage made before, though they could not qualify he ever came to kirk and market thereafter; because they judged this equipollent thereto, and a manifest demonstration of sanitas mentis. As also, in February, 1668, in the action Pargillis against Pargillis, it was found that the riding on horseback, though the disponer was proven to be sick, and to have been supported on his horse, were sufficient qualifications of health: ergo going to kirk and market is not absolutely necessary for validating such dispositions. Yet all thir were answered; and it was farther urged, that on this consideration the Parliament had lately, in 1669, refused to allow parents the power of providing their younger children, (than which nothing imaginable can be more favourable,) to small portions on their deathbed. At last the Lords would find no acts equipollent to going to kirk and market; but that it behoved so to be done in forma specifica: and resolved they would make that a constant practick by which they would decide the like cases in all time coming.
Vide infra 11th December, 1677, Lockhart, No. 677;—Stair's Decisions, 3d February 1663, Robertson and the Town of Lanerk.
