Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Sinclair
v.
Juliana Smith

Date: 5 July 1673

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In a reduction of a disposition of a tenement of land in Dunse, at the instance of one Sinclair, as being made inter conjunctas personas, in so far as the said Juliana was the disponer's wife's sister:—

It was answered, That the defender having no relation of blood, but only by affinity, and the disposition bearing for sums of money, and an onerous cause, could not be taken away but scripto vel juramento.

It was replied, That the law puts no difference betwixt relations of affinity and consanguinity; and, therefore, the defender ought to condescend upon the onerous cause, and instruct the same. After which, she being ordained to give in a condescendence, and lead witnesses for proving thereof, or any writs she could adduce; before answer, she condescending that the onerous cause was for two bonds delivered up, wherein the disponer was debtor; which, with the expenses of the infeftment, did amount to the value of the land: for proving whereof, she could only adduce testes singulares, as to one of the bonds; and another witness, that deponed only ex auditu, that he heard the disponer confess that he was debtor by another bond.

The Lords did take the defender's oath in supplement, and found, That in this case, where the conjunct person was only related by affinity, that talis qualis probatio was sufficient; but where the condescendence did bear, giving to the disponer money when he was in prison and in distress, which she confessed was after the disposition, they refused to sustain the same as a part of the onerous cause, and reduced pro tanto.

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