Death-bed sustained by exception against a bond without witnesses, and alleged to be holograph.
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Margaret Calderwood pursues Janet Schaw to pay a bond, as heir to John Schaw, granted by him, who alleged absolvitor, because the bond is null, wanting witnesses. The pursuer offered him to prove holograph. The defender answered, That holograph could not prove its own date, so that it is presumed the bond was granted on death-bed, unless it be proved that the date is true as it stands, or at least that it was subscribed before the defunct's sickness. The pursuer answered, That holograph proves, its date, except contra tertium, but it is good against the granter or his heir, who cannot be heard to say that his predecessor's deed is false in the date. The defender answered, That an heir might very well deny the date of a holograph writ, otherwise the whole benefit of the law (in favour of heirs not to be prejudged by deeds on death-bed) may be evacuated by antedated holograph writs on death-bed. The pursuer answered, That he was willing to sustain the reason founded on death-bed, which was only competent by reduction, and not by exception or reply. The defender answered, That where death-bed is instantly verified by presumption of law, and that the pursuer must make up a writ in rigore juris null for want of witnesses, he ought without multiplication of processes, both to prove the bond holograph, and of date anterior to the defunct's sickness.
Which the Lords found relevant.
Fol. Dic. v. 2. p. 258. Stair, v. 1. p. 562.
*** Gosford's report of this case is No 71. p. 2737, voce Competent.
*** A similar decision is reported by Stair, 24th June 1681, Dows against Dow, No 158. p. 11477, voce Presumption.
