In what cases a Private Deed not probative against the Heir.
Fairholm v. Pollock and Browns
Date: 13 July 1632 Case No. No 471.
Click here to view a pdf copy of this documet : PDF Copy
In an action of reduction of a bond of 500 merks, as being given in lecto ægritudinis, alleged, Absolvitor, because it was given for a preceding cause, viz. for some victual sold to the granter thereof, the delivery whereof he offered to prove, Replied, Agat eo nomine for the victual, but the bond was null, and could not be obligatory; next, If it were sustained for that cause, yet not probable but by writ or oath of party, for otherwise the pursuer should be constituted debtor of 500 merks by witnesses. The Lords found the allegeance relevant to be proved by witnesses, being to fortify the bond; and because the victual was alleged delivered partly to the granter of the bond, partly to his father, to whom by the bond he granted himself to be heir, the Lords sustained the probation only for such as was delivered to himself, but not to his father, unless the defender would prove aliunde than by the bond, that the granter thereof was heir to his father.
Fol. Dic. v. 2. p. 254. Spottiswood, (Contracts, &c) p. 71.
*** Durie's report of this case is No 33. p. 3209, voce Deathbed.
