Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
George Forbes v. Yeaman and Others, Dounie's Debtors
Date: 16 December 1696
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In the declarator of bastardy pursued by George Forbes, against Yeaman and others, in Haddington, debtors to one Dounie, it being in re antiqua, and the defenders having produced a testifícate, out of the kirk-session books, of his father's marriage, but would not burden themselves to prove, that, by the common belief of the place, he was holden and reputed born of lawful marriage; for, to prove the marriage and cohabitation after so long a time was now impossible, being ultra hominum memoriam;—the Lords considered, That, though the favour of marriage, and being legitimate children, gave the prerogative of probation, yet, if they would not make use of it, then the donatar might be allowed to prove, by common fame and report, he was holden and reputed a bastard; and gave the defenders their election; but thought it not safe to trust a conjunct probation, ad evitandum perjurium. See the 20th of February 1642, Malcome Crawfurd against Pur sells.
The next defence was, They had right to the moveables by disposition; and, though a bastard was incapacitated to make a testament, so that he had not testamenti factio activa, but only passiva, yet he might validly dispone inter vivos. Answered,—Though this was done by way of disposition, yet it was done when he was in lecto, and so sapit naturam testamenti; and at that time he could not wrong the fisk.
The Lords found, If it was on deathbed it could not defend them against the donatar, though it were in form of a disposition. See 18th July 1678, Craw; and Stair, tit. Confiscations.
