Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 3 February 1685
Colquhoun of Luss v. Archibald Stirling of Carden
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The Lords advised the two points debated in Colquhon of Luss's reduction ex capite lecti, against Archibald Stirling of Carden, of a bond of 20,000 merks which the last Laird of Luss gave his Lady, who, after his death, married Carden. The defences against it were:—1mo, That the deed was valid, for, after subscribing it, he went both to kirk and market, though the performing any one of the two is sufficient to purge and take off deathbed. 2do, Esto it were on deathbed, it depended upon an onerous cause, being granted to her in remuneration of her consent to the sale and alienation of the lands of Lochend to Sir Robert Sinclair, advocate, whereof she was first heretrix, and, the time of the sale, liferentrix; and that the said price went toward the payment of Luss's own debt.
Answered to the first,—His attempt in going to kirk and market could not satisfy the law; because it was in coach, only from James Dean's house, at the foot of the Canongate, to the Abbey-church; and this going being done with design to validate the Act, he should have walked on foot; but it was ultimas naturæ conatus, and he could not go otherwise, and he stumbled in the very short way to the coach, and his Lady and he were in each other's hands; yea, she held him. Though this was but suitable to his quality, to go in coach, and to lead his Lady; yet, at such a time as this, these compliments ought to be omitted and dispensed with. As to the second, This bond does not bear it as granted for that cause; and, esto it were, she had got an additional jointure besides, which was remuneration enough. And there was 60,000 merks of proper debt affecting Lochend, which exhausted the price pro tanto.
The Lords, on the 23d of February, found the deathbed proven; not that they decided the point in general, that every going in coach should imply supportation and deathbed; for one may have the gout in the feet, and no other distemper. See Gomez, ad regulam Cancellariæ apostolicæ; de Infirmis Resig-nantibus. But in Luss's particular circumstances, as they were proven, they found he was supported. They forbore advising the 2d point, till they caused some of their number essay an agreement. But that taking no effect, on the 5th of February they advised the other; and found she was sufficiently remunerated aliunde for this her consent; and that it was not proven that the said remuneration was either the design or cause of that bond given by Luss to Sir Archibald Stuart of Blackhall, for the Lady's behoof; and therefore reduced it in totum.
