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Scottish Court of Session Decisions >>
Calderwood v Handiesyde and Shaw. [1670] 2 Brn 486 (5 July 1670)
URL: http://www.bailii.org/scot/cases/ScotCS/1670/Brn020486-0810.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Calderwood v. Handiesyde and Shaw
Date: 5 July 1670
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This is a reduction of a disposition, 1mo, Because granted on death-bed. 2do, On the act of Parliament 1661, preferring the creditors of the defunct to the creditors of the apparent heir. 3tio, On the act of Parliament 1621, anent dispositions not made for onerous causes.
To this last, it was Answered,—That the disposition itself bore that it was made for onerous causes.
Replied,—That he behoved to prove the onerous causes for which it was granted otherways than by the disposition itself.
Duplied,—If the disposition had been inter conjunctas personas, then he confesses he ought to have instructed the onerous causes, albeit the disposition had borne the same: but being among strangers, he needed not; especially considering the defender is willing to give his oath upon the onerous equivalent causes thereof.
The Lords repelled the reason and reply, in respect of the answer and duply.
Then alleged,—That the disposition bore only in general, that it was granted for causes onerous, without condescending on the special causes thereof; which was not relevant.
Replied,—It were a hard thing to reduce all dispositions bearing only, in general, causes onerous.
The Lords repelled the allegeance, in respect of the reply.
