Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.
Date: 1686 and 1685

George Suity of Balgone and John Cunningham
v.
John and James Hay

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See the prior part of the Report of this case, Dictionary, page 14,340. 1685. March 20.—John Hay having raised a declarator, mentioned 13th December 1684, in name of his son James, that umquhile John Suity was in liege poustie when he made the disposition of his whole estate in his son's favours, and that he went to kirk and market unsupported, after the same:—Alleged by Suity of Balgone, called as heir,—11mo, No process; because all the nearest of kin, viz. Balgone's sisters, are not called. Answered,—Balgone, who is the apparent heir, is called, and that is sufficient. 2do, Alleged,—The principal disposition is not produced, but only a copy attested.

This being reported by Drumcairn, the Lords repelled the first, because the apparent heir was called; and ordained the principal disposition to be produced, and the defender to see it against Tuesday; and, if he had nothing then to say, then they, before answer, ordained a conjunct probation to both parties,—the pursuer to prove liege poustie, and the defender, death-bed.

Four nice points came to be considered in this cause:—1mo, If the witnesses in the instrument of John Suity's going to kirk and market will not be obliged to depone that they were with him, and looking on all the time, from his coming out of the house till his going to kirk and market; or if it be sufficient that they met him on the street: seeing he might have been supported thither down stairs, or supported at rugged ground, when they looked away of purpose. 2do, If one's going out under night in winter, about five o'clock, when it is dark, satisfies the Act anent going to kirk and market: for going to any one of them is thought to satisfy; the design of it being to make the deed public, and seen by indifferent unconcerned witnesses; whereas the other way it may be done most latently and clandestinely, in presence only of domestic and picked-out witnesses. 3tio, If our law does only require the going to kirk or market unsupported, or if, ad perfectionem et consummationem actus, he must not only come to it, but likewise return back, free and unsupported, to his house again, as the terminus a quo from which he set out: for this being required as the badge of sanity, how can it be clearly otherwise? and what if he shall fall in a swoon, or die in the return? 4to, If, in a case so circumstantiate, women may not be adduced as witnesses, especially where they become so necessary, by the secluding of all men from coming near the deceased person, whom they besieged; so, to render the probation difficult: and the law reprobates nimia cautela. For though it be not like puerperium, where other witnesses are not present, yet the contrivance is the same here. And, in the Lady Monteith' s case with her Lord, women-witnesses were allowed to prove adultery; supra, 1st January 1684. See this case decided 23d March 1686.

Vol. I. Page 356.

1686. March 23. —The case of Sir George Suty of Balgone and John Cunninghame against John and James Hays, mentioned 20th March 1685, is advised; and the Lords find the death-bed, and supportation in his coming to kirk and market, proven; and therefore reduced the disposition, and assoilyied from the declarator of liege poustie.

Vol. I. Page 409.