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Scottish Court of Session Decisions >>
James Graham v The Creditors of Sir James Stanfield. [1703] Mor 12614 (19 February 1703)
URL: http://www.bailii.org/scot/cases/ScotCS/1703/Mor2912614-505.html Cite as:
[1703] Mor 12614
James Graham v. The Creditors of Sir James Stanfield
Date: 19 February 1703 Case No. No 505.
Effect of holograph as to reduction ex capite lecli, when the person has died suddenly.
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In the ranking of the Creditors of Sir James Stanfield of Newmilns, Bailie James Graham produced a bond, all written and subscribed by the said Sir James; against which it was objected by the other Creditors, That they repeated a reduction ex capite lecti against it; for, being holograph, non probat suam datam; and so is presumed to have been on death-bed. Answered, That brocard is founded on a presumption, quæ cedit veritati; but so it is, he was never on death-bed, nor did any sickness or infirmity precede his death, seeing he was found murdered in his bed, for which his son was executed, as is notour by the process, and otherwise. The Lords sustained the answer; and found death-bed could not take place here; and assoilzied. Craig, De Feudis, Lib. 1. Dieg. 12. debates, how far deeds, granted by one going straight to fight a duel, or where the plague is raging in a town, or by one going to be cut for the stone, are reputed to be done on death-bed; and he thinks from the time the infection entered his house, though it cannot be precisely proved he was then touched with it, that he can make no valid right to affect his heir, &c.
Fol. Dic. v. 2. p. 260. Fountainhall, v. 2. p. 181.
*** A similar case was decided, January 1730, Ross against Ross.—See Appendix.
