Scottish Court of Session Decisions

Subject_1 DEATH-BED.
Subject_2 SECT. XI.

Reconvalescence by going to Kirk and Market.

Nicol
v.
Johnston

Date: 9 January 1673
Case No. No 90.

Found as above.

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Umquhile Henry Peers having granted a bond, dated the 5th day of September 1645, of 2000 merks of borrowed money, the right thereof coming now to John Johnston in anno 1656, there was a decreet recovered thereupon against Thomas Nicol and Lawrie, two heirs-portioners to the defunct, and thereupon an apprising which is now expired. Nicol raises reduction of the bond, and all that followed in consequence, as being granted by the defunct in lecto ægritudinis, after he and his wife and family, upon suspicion of the great plague in anno 1645, were put out to lodges in the moor, and died there within some few days after the date of the bond; and albeit the condition of the defunct did not admit of the access of witnesses to prove that he was actually infected before, yet his being sequestrate, and dying shortly thereafter, and never cleansed, but remaining in his lodge, did infer a sufficient presumptive probation thereof. And the defender having alleged, That the time of the bond the defunct was in health uninfected, and that he had frequently walked abroad in the moor after the date of the bond, and drank with several persons, which behoved to be sufficient to instruct convalescence, seeing his being suspect of the plague hindered his access to kirk and market; especially considering, that the pursuer is scarce within the eighth degree to him, and hath of design forborne this reduction till the witnesses were dead, who might have proven the party's health, convalescence, or the onerous cause of the bond, seeing he is compearing in the decreet 1656, without any mention of death-bed, or any reduction thereupon;——The Lords having, before answer, ordained witnesses to be examined concerning the condition of the defunct the time of the bond, who proved that the defunct died about the middle of September 1645, and that they saw him several times walk abroad in the moor after the date of the bond, before his death and drank with him at that time, but in several cups, he being under suspicion of the plague, and never cleansed, but that they knew not when he was actually infected;

The Lords found that the bond was granted in lecto, and reduced the samen, and all that had followed thereupon; but declared the effect of the reduction to be only from the sentence, that the defender might make use of the bond as a legacy against the moveables, and so reserved the samen, and the pursuer's allegeance of intromission, by this apprising, in satisfaction, as accords.

Fol. Dic. v. 1. p. 218. Stair, v. 2. p. 146.