In what cases a Private Deed not probative against the Heir.
Sir William Nicolson v. Dick of Grange
1682.
March. Case No. No 476.
A person having been holden as confessed upon a promise, what effect this ought to have against the heir in a reduction ex capite lecti of the decree of circumduction?
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Sir John Nicolson being holden as confest by circumduction of the term, for not deponing upon a promise of payment of L. 5000; after his decease, a reduction of the decreet of circumduction ex capite lecti was raised, upon this reason, That as Sir John could not by a deed under his hand or by his acknowledgment of a debt on deathbed, prejudge the heir, he could far less do it by suffering himself to be holden as confest, which is only a presumptive acknowledgment.
Answered; Collusion is not to be presumed where the verity of a thing is instructed by oath, which is stronger than an acknowledgement in writ; and the holding as confest is equivalent to an explicit oath; besides, if it was in the power of debtors to be absent, when they could not deny what is referred to their oath, and not go to kirk and market thereafter, the legal diligence of creditors would often be disappointed.
Replied; Holding as confest is but equivalent to a judicial acknowledgement without oath, and so not so strong against deathhed as an oath; and yet neither ought to be more effectual than a deed in writing; for if it were, persons on deathbed might easily prejudge their heirs.
The Lords inclined to find the reason relevant in these terms, viz. That Sir John the time of litiscontestation was sick of the disease whereof he died; and that it was not enough to allege he was sick, or on deathbed, at the taking of the term, or the time of the circumduction; because litiscontestation is contractus judicialis, where parties are compearing, and one upon deathbed may satisfy prior obligations; but, before answer, a joint probation was allowed, as to the state of the defunct's health the time of litiscontestation.
Fol. Dic. v. 2. p. 256. Harcarse, [1ectus Ægritudinis.) No 650 p. 179.
