Circumstances inferring Convalescence, whether equivalent to going to Kirk and Market.
The Younger Daughters of Mountonhall v. The Eldest
1683.
February. Case No. No 100.
Many strong circumstances inferring convalescence, not admitted as equivalent to going to kirk and market.
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In a reduction ex capite lecti, at the instance of James Hamilton of Mountonhall's two younger daughters, of a disposition of his land and 20,000 merks, in favours of his eldest daughter, whereby she was made to have a greater share than the rest;
The defender, for supporting of her right, alleged upon deeds done there-after by the disponer, equivalent to the going to kirk and market, which, upon probation, amounted to this, that he rode to Edinburgh, and called at Caldcoats by the way, where he spoke with one Hislope, and also that he passed by Peppermill; but that appeared not to have happened on the same day. Again, one witness deponed, that he spoke with him on the street of Edinburgh ; another deponed, that he bought his barley in a change-house in Edinburgh; and one deponed, that he went to Fisher-row, and bought a midden of muck: And several witnesses deponed, that he walked unsupported about the doors, and managed his business discreetly, after the date of the deed quarrelled; but that he never wrent to church after his disease, which was a gout and a palsy, nor did ever recover of it.
Answered; Law having fixed upon the going to kirk and market, as signs of liege poustie, equipollent acts are not to be sustained, unless, at least, they have the essential qualities of these of kirk and market, viz. be public, and performed before indifferent witnesses; for, how easy might two witnesses be got to support him for the space of four miles, except at particular places. And it was not deponed, that he lighted from off his horse; and a man under a great sickness might ride so far.
The Lords found the defunct was in lecto; and therefore reduced the disposition.
Fol. Dic. v. 1. p. 218. Harcarse, (Lectus Æcritudinis.) No 648. p. 179.
