A writ may be done away by reduction ex capite sustus, doli, aut minoris ætatis.
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In a reduction at the instance of the Laird of Fordel, against Monteith of Caribber, of a disposition granted by Monteith of Randyfurd to Caribber, upon that reason, that the said disposition was not delivered, but was lying by the defunct in his charter-chest, and blank in the name and date, and that the defender intromitted with the same unwarrantably, and filled up his name;
The Lords ordained certain persons, who were going to France, to be examined before debate, reserving to themselves to consider what their depositions should work.
Though it may appear hard, that a writ should be taken away by witnesses, yet the reason being relevant, and in fact, and resolving in dole and fraud, it may be proved by witnesses.
1677. January 17.—This day again, in the case above mentioned, Caribber contra Fordel, the Lords did find, upon a bill given in by Caribber, that albeit writ cannot be taken away but by writ directly, and that a disposition could not be taken away but by a renunciation or some other writ, where there is no question as to the validity and formality of the same, yet it may be taken away by a reduction ex capite metus et doli, and minoris ætatis and lesion; and that in such pursuits, the reasons being in fact, and libelled either upon force or circumvention and fraud, are probable by witnesses; and that the reduction at Fordel's instance upon that reason, viz. that the disposition in question was found among the defunct's papers the time of his decease, and was intromitted with and filled up by Caribber, is ex codem capite doli.
Clerk, Hay.
Fol. Dic. v. 2. p. 217. Dirleton, No 427. p. 211. & No 432. p. 213.
*** A similar decision was pronounced, 16th January 1677, Stewart against Riddoch, No 74. p. 11406, voce Presumption.
