The law of death-bed strikes at moveable bonds as well as heritage, since for these also the heritage may be comprised, and so the heir prejudiced. A moveable bond sustained to an apothecary for the price of drugs furnished.
Click here to view a pdf copy of this documet : PDF Copy
In an action betwixt Shaw and Gray, for reduction of a bond made by a woman called Shaw, to whom the pursuer was brother and heir, given to the said Umphra Gray defender, containing the payment to him of 600 merks, the reason being, that the bond was made in lecto ægritudinis. The Lords found that reason relevant, viz. That the bond was made by the party thereby obliged, she at the date thereof being diseased of a sickness, whereof she never convalesced, but whereof she died, about the space of seven weeks thereafter; which reason was sustained, albeit the defender alleged, that the same ought not to strike upon bonds made for payment of moveable sums, which might be made upon death-bed, and that the municipal law, whereupon the reason was founded, was only to restrain parties to make alienations of their lands and heritable rights, in prejudice of their heirs upon their death-beds; and also alleged, That in this case, this bond cannot be reputed, done in lecto ægritudinis, in respect that the party maker of the bond, at the date thereof, and by the space of six weeks thereafter, was of good health, to administer her lawful affairs, and in that same estate for sickness as she was in by the space of an whole year before, viz. that albeit she keeped the house for the indisposition of her body, having a lent sickness of hydropsie all that time, yet she lay not bedfast, but rose daily and put on her clothes, and went up and down the house; which allegeance was repelled, seeing the party alleged not, that she came out to kirk and market, or at least did other deeds of health, equivalent to such outcoming; and found, that the law struck as well upon moveable bonds, as upon deeds done in heritage; for upon the moveable bonds, the heritage might be comprised, and so the heir thereby prejudged; and albeit; it was a lent-sickness, et non morbus sonticus, the reason was found relevant. And because the party to whom the bond was given was an apothecary, who alleged, that the bond was made to him for drugs, and satisfaction of his cure ministrate by him, during the whole space of her being in sickness; the Lords found, that they would sustain the bond pro tanto, viz. for the prices of his medicines, as should be proven to have been furbished to her by him, and also for such further sum, as in the end of the cause should be modified by the Lords, for satisfaction of his pains and for his art.
Act. Hope et Oliphant.Alt. Nicolson, jun. et Russel.Clerk, Hay.
Fol. Dic. v. 1. p. 213. Durie, p. 95.
