It is not being at church and market, so much as the going there, which infers perfect health.
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In a reduction of a disposition by John Suttie to James Hay, ex capite lecti, at the instance of John Cuninghame, who had adjudged from Balgon, apparent heir to the disponer;
The defender having alleged upon the disponer's going to kirk and market, and adduced witnesses for proving thereof,
It was answered for the pursuer; That the probation was defective, in so far as the witnesses do not say that they saw the defunct come out of his chamber and return home; but only, that they saw and left him at such a place upon the street, which argues, that he was not in a condition to go down and up stairs unsupported, otherwise the witnesses had been also called to that part of the progress. And it is not the being at church and market, but the going there, that infers perfect health. 2do, The progress was performed in an unlawful time, under cloud of night, between four and five o'clock, in the month of December. 3tio, Acts of supportation are proven at the shop where he was, and he returned home in a chair or sedan, into which he was helped, and groaned heavily; and he died within seven days after. 4to, The witnesses vary in their depositions from what is asserted in the instrument. 5to, The going to church in the night-time, when the party's condition could not be exposed to the view of indifferent and unsuspected persons, but only to picked witnesses, taken along to serve a turn, is not sufficient to elide the exception of death-bed. 6to, The not returning home before the witnesses is a material defect. And the being carried in a sedan is a plain supportation and argument of death-bed.
Replied for the defender ; It was not necessary to have witnesses to the going out of the house and returning. 2do, The progress needed not to be made in the time of the forenoon's service; for the vespers was the most solemn meeting at church before the Reformation, and the evening prayers since; and the defender passed from the instrument. 3tio, Any acts of supportation are denied; and a sedan is not a supporter.
The Lords, nemine contradicente, found the disposition was made in lecto, and reduced.
