Circumstances inferring Convalescence, whether equivalent to going to Kirk and Market.
Lowrie of Blackwood v. Sir John Drummond
Date: 7 February 1671 Case No. No 98.
In a proof of death-bed, it was found, that the defunct's private way of going abroad, though unsupported, was not equivalent to his going to kirk and market.
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Sir Robert Drummond of Meidhope, having disponed his lands of Scotstoun to Sir John Drummond, for love and favour, and for better encouraging Sir John to pay his debt, as the disposition bears, and under reversion of a rose-noble in his own life; Mr John Drummond, Sir Robert's apparent heir, grants a bond to Lowrie of Blackwood, whereupon he adjudges the land from the apparent heir, and pursues a reduction of the disposition, as done on deathbed. In which pursuit, witnesses were appointed to be examined, binc inde, concerning Sir Robert's condition when he made the disposition, and thereafter till his death. The sum of the probation was, that before the disposition, Sir Robert had contracted an apoplexy, whereby he remained senseless for a time, but by cure there remained a palsy in his tongue, and a vertigo in his head, which continued till his death, and about a year after that the sickness affected his brain, so that he lost the remembrance of things; and most of the witnesses deponed, that he was not sound thereafter in his judgment, but that he keeped on his cloaths, and was not affixed to his bed, and went frequently and walked in his garden and to the Court-hill, half a pair of butts off; and one of the witnesses deponed, that he came to his house alone, a quarter of a mile off; but that he went never to the kirk nor market, nor any public place. Whereupon it was alleged for the defender, That the defunct continued in health at and after the disposition, and that his going so frequently abroad, was equivalent to his going to kirk and market, which was sufficient to elide the reason of deathbed; and that the palsy being but in his tongue, albeit he mis-named things, it did not import his being on death bed, especially seeing he disponed for payment of his debt, equivalent to the worth of the land, his disposition being to a friend of his name, who relieved him of his debt, his heir not being his son nor descendant, and incapable to relieve him of his debt. It was answered, That the contracting of his sickness being sufficiently proven to be before this disposition, and the continuance thereof to affect his brain, in that case nothing could purge the same, but his going to kirk and market, which were the acts required in law, and could not be supplied by his going privately abroad, and not to any popular public meeting; and as to his debts, they could not validate the disposition by exception, though the defender might, by way of action, affect therewith the estate, or burden the heir on whose bond it was adjudged, especially seeing the disposition bore for love and favour, and redeemable for a rose-noble.
The Lords found the reason of death-bed sufficiently proven, and that his private going abroad (though unsupported) was not equivalent to going abroad to kirk and market, or public meeting, where the disease continued to affect the brain; but they found the paying of debts equivalent to the worth of the land relevant by way of exception, in regard the disposition bore to be for payment of his debt.
