A person by rheumatism contracted a lump on his back, which dislocated two of the vertebræ, so that he kept his bed, and was unable to walk even with crutches. In that condition he granted bonds, the last of which was more than three years before his death.
The Lords found these bonds were not reducible ex capite lecti.
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The Lords advised the reduction ex capite lecti, pursued by James Gordon of Techmuiry against Gordon of Daach, of some bonds granted by the parson of Rothiemay, his father, to his daughters of the first marriage, and whereunto Daach had acquired right. The answer was, any thing the granter then laboured under, was not a morbus but a vitium, he, by a rheumatism, having contracted a lump in his back which dislocated two of the vertebræ or whorlebone; and though he kept his bed, and was unable to walk even with crutches, yet the last of the bonds is more than three years before his death, and he cannot be repute to have then contracted the sickness whereof he died; but truly he took a fever, which, in two or three weeks, dispatched him. Answered, The disjointing of his back was the cause of the sickness which carried him off, et causa causæ est causa causati; and, after he took bed, he had several fainting fits, and used much physic and cordials; and though he took a fever, yet he was sick before, and omnis morbus desinit in febre as the physicians tell us; and it does not import that he did all acts of judgment and understanding; for the law considers their liableness to impressions and importunity at that time; as was found, Creditors of Balmerino against Lady Couper, No 77. p. 3292.; Shaw contra Gray, No 32. p. 3208.: And the great distance of time betwixt the date of the right, and the granter's decease, was not regarded by the Lords, Clieland of Faskin, No 86. p. 3305.; though that interlocutor was much complained of.
The Lords having advised the probation, thought it hard to fix a death-bed so far back, and that it ought not to exceed a year; and that the immediate, not the remote causes of one's death were here to be considered; therefore they found death-bed not proven in this case and assoilzied from the reduction.
Fol. Dic. v. 1. p. 217. Fountainhall, v. 1. p. 720.
