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Scottish Court of Session Decisions >>
John Melrose v Isobel Douglas. [1671] Mor 12432 (21 December 1671)
URL: http://www.bailii.org/scot/cases/ScotCS/1671/Mor2912432-261.html Cite as:
[1671] Mor 12432
Found that a bond granted by a woman who could not write, subscribed by a notary and four witnesses, being assigned for an onerous cause, could not be reduced upon fraud, to be proved by the subscribing witnesses and communers.
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John Melrose being assigned to a bond granted by the said Isabel to her son, Robert Gibson, for payment of 300 merks yearly during her lifetime, and having charged thereupon, she did raise suspension and reduction, upon this reason, that the bond was not subscribed by her, but by two notaries and four witnesses, she being an illiterate woman, and was never read over to her before she gave order to subscribe for her, and wherein she was circumvened, in so far as it was offered to be proved by the communers who treated betwixt her and her son, that she had only condescended, and gave order for drawing the bond for payment of 300 merks during her son's lifetime only, but not her own; whereupon she desired the communers to be examined ex officio before answer. It was answered, That the charger being a lawful creditor, and made assignee for an onerous cause to a bond, which was as valid by act of Parliament as if it had been subscribed by the party granter, it could not be taken away by the deposition of the communers now after the cedent's decease. The Lords assoilzied from the reason of reduction, unless that they would prove, that the assignee was particeps fraudis, or refer the verity thereof to his oath.
Fol. Dic. v. 2. p. 233. Gosford, MS. No 430. p. 222.
