Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Nicoll v. Hunter
Date: 10 November 1671
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A Bond was craved to be reduced upon this reason, That it was granted in lecto ægritudinis, in so far as the granter, the time of the making thereof, was affected with the pest, was enclosed upon that account, never came furth, but within some three or four days thereafter departed.
The Lords assoilyied from the reason, as not relevantly qualifying death-bed, though the bond was probatio probata to itself, narrating his sickness of the plague was the cause why he made the same. Yet Craig seems to be of the other opinion, page 86.
Advocates' MS. No. 244, folio 110.
November 10, 1671.—Having more ripely considered the reason of reduction proponed supra betwixt Nicoll and Hunter, at number 244, it seemed to deserve the Lords' answer; for though tempus pestis be tempus privilegiatum, and so testamentum factum tempore pestis non requirat septem testes, et alia quædam liabeat privilegia, yet there is no law or practice in our country allowing them to dispone an heritage after they are affected; and there is reason for it. If a fever incapacitate a man from alienation of his real rights, much more should febris pestilentialis do it, since all the reasons inductive of that law have place there, videlicet, insanitas mentis, solicitation of friends, &c. And Craig ubi supra is so clear in it that there is no room for any doubt, for (which is more) though he be intactus, if the family be infected, he concludes him incapable of making any real conveyance.
