Under Sentence of Death. - Effect of Reduction capite lecti. - Ratification upon Oath. - Sale for a Reasonable Price. - Equivalent benefit to the Heir.
Hary Græme v. Douglasses
1685.
March. Case No. No 112.
Found as in No 107. p. 3328.
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Mr Douglas having, after he was condemned to die for murder, acknowledged, in exoneration of his conscience, by a declaration under his hand ratified before the justices, that he had raised fire in Hary Græme's chamber; Hary raised a process of damage against his heirs.
Alleged for the defenders, 1mo. The defunct was minor, and lesed by that confession; 2do, It was emitted without consent of his curators, and so null; 3tio, The defunct, after sentence, and before execution, was reputed to be in lecto ægritudinis, so that he could not prejudge his heir by his confession.
Answered; Minors cannot revoke confessions of crimes, unless they can docere de errore; 2do, As minors may commit crimes without consent of their curators, so they may confess them; 3tio, The law of death-bed is founded upon the presumption, that persons ex favore et impatientia morbi, may be imposed upon to prejudge their heirs; but here the defunct was in firm and perfect judgment, and health. Again, it were absurd if a person condemned for a private crime, acknowledging high treason, might not be indicted again for treason, and forfeited upon his confession. Now, de facto, the defunct was indicted again for the fire raising; and though he was acquitted by an assize, because he did not ratify the said confession before them, yet the declaration before witnesses is not sufficient to infer an obligement for damage; and if a party on death-bed should judicially acknowledge himself guilty of treason, he might be forfeited for the same after his death.
Replied; No heir can be directly prejudged by any writ of his predecessor made on death-bed.
The Lords found, That Mr Douglas, after sentence, was in the case of death-bed; and therefore did not sustain process on his confession.
Fol. Dic. v. 1. p. 220. Harcarse, (Summons.) No 913. p. 257.
