Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Robert Wilson and His Curators v. His Wife
Date: 16 November 1694
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Robert Wilson and his curators having raised a reduction of a disposition granted to his wife, upon the reason of deathbed: when the probation came to be advised, the Lords found it clearly proven, that, at his going to kirk and market, he fainted by the way, and was supported. But it was not cleared, when his sickness began, and if he had contracted it before subscribing that disposition; which was absolutely necessary: for, if a right be granted by one in health, though he die within an hour after, without going either to kirk or market, it would be valid. Therefore, the Lords assoilyied from the reduction. Whereupon a bill was given in by the pursuer, representing, that, through mistake, the witnesses had not deponed upon the time when he took the disease, and had not answered that interrogatory; whereas, if the Lords would allow them yet to be reexamined, they would clear that point above exception.
The Lords thought that of dangerous consequence, to begin a new probation, when you had the power and management of it in your own hand; therefore, they refused any farther diligence, the cause being now advised, and found not proven. For an act of litiscontestation is a judicial contract and novation, on which both parties put the whole cause; and, if these points be not proven, then, of consent, he engages to lose the cause. Yet sometimes the Lords, for their own clearing, will admit probation in this state of the process, if it can be shortly expede, and draw not out the cause to any length.
