In a pursuit against an heir or payment of a holograph bond, death-bed was found not competent by day of exception, but by reduction.
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Grissel Seatoun, and the Laird of Touch younger, her assignee, pursue——Dundas, as charged to enter heir to Mr Henry Mauld, for payment of a bond of 8000 merks granted to the said Grissel, by the said Mr Henry, her son. It was alleged that the bond was null, wanting witnesses. It was replied, That the pursuer offered him to prove it holograph. It was duplied, That albeit it were proven holograph, as to the body, yet it could not instruct its own date to have been any day before the day that Mr Henry died, and so being granted in lecto ægritudinis, cannot prejudge his heir, whereupon the defender has a reduction. It is answered, That the reduction is not seen, nor is there any title in the defender produced as heir. It was answered, That the nullity, as wanting witnesses, was competent by exception, and the duply, as being presumed to be in lecto, was but incident, and was not a defence, but a duply.
The Lords repelled the defence upon the nullity of the want of witnesses in respect of the reply, and found the duply not competent, hoc ordine, but only by reduction, and found there was no title produced in the reduction.
