Scottish Court of Session Decisions

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

Henry Lyon
v.
The Apparent Heirs of George Herriot, Bailie in the Cannongate

Date: 6 January 1674

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Henry Lyon, pursuing the apparent heirs for payment of their father's debts, conform to several tickets subscribed by him:—It was alleged for the defenders, That the tickets were holograph, and therefore did not prove quoad datam, but must be presumed to be subscribed on death-bed, and so cannot burden the heirs; likeas there is a reduction intented of the said tickets upon that reason, that they were subscribed in lecto ægritudinis.

It was replied, That holograph writs are not null by way of exception, but only by a reduction, which ought not to stop execution, or a decreet against the apparent heirs; and all that can be acclaimed, is, that, if the defenders prevail in the reduction, the decreet, and all execution thereupon, shall fall in consequence: but if the pursuer can have no decreet that he may do diligence, in the mean time, other creditors, who are now in cursu diligentiæ, and comprising, will altogether be preferred, and the pursuer will not be able to come in within year and day.

The Lords did repel the defence, in respect of the reply; and found that holograph writs were not ipso jure null, so as to be a ground of a decreet against an apparent heir, but they ought to be reduced via actionis; especially where the pursuer would be altogether frustrated for want of diligence: but they thought sufficient to declare, that, in case the defender prevailed in the reduction, the decreet, and all that followed thereupon, should fall in consequence.

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