Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
William Morrison of Prestongrange v. Mr Hugh Craig, Minister at Galiowsheills
Date: 28 February 1706
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Mr Hugh Craig having granted bond to Dame Jane Morrison, the said Pres-tongrange's sister, and relict of Sir John Nisbet of Dirleton, for 1843 merks; she, in November 1695, being on deathbed, called for Mr James Kirkton, minister of Edinburgh, his wife, and delivered her Mr Craig's bond in thir terms:—That, on Mr Craig's paying 100 merks to one Gemmil, a kirk-beadle, she should then burn his bond. The Lady dying, Prestongrange, as her executor, pursues Mrs Kirkton for exhibition of Mr Craig's bond; and she having deponed on the conditions foresaid, on which it was consigned in her hands, and that, before she got it perfected, the citation prevented her,—the Lords appointed the bond to be put in the clerk's hands. And Prestongrange seeking to have it delivered up to him, Mr Hugh repeated a declarator of extinction of his bond, on this ground, That the Lady Dirleton, creditor in the bond, never intended to have exacted it: for, when he signed it, and the two witnesses were subscribing it, she pulled it away; so there is only the name of one of them at it, without so much as the word witness adjected thereto. 2do, The reason why it was put in Mrs Kirk-ton's hands was, because Mr Hugh was then in the north, preaching, by order of the General Assembly; whereas, if he had been in town, she would certainly have given it back to himself; in which case it would have been clearly legatum liberationis: so she was no more but a depositary and hand to convey it. 3tio, Prestongrange can have no right to it, because he obstructed all access to his sister during the time of her sickness; notwithstanding she testified her inclination to settle her business, and called for one Nisbet, a writer, for that effect; and so he ought to lose the benefit, tanquam indignus, by the title of the Roman law, Si quis aliquem testari prohibuerit.
Answered,—The nullity of the bond ought to be repelled, seeing the bond is holograph; and the want of witnesses can be supplied and made up by his oath. And, as to the second,—His bond cannot be taken from him by Mrs Kirkton's single testimony, seeing there is nothing antecedent to prove the depositation in her hands: besides, to annul writ by witnesses, is contrary to law, and pessimi exempli; and, at best, it can only be sustained as a nuncupative legacy, which can subsist no further than £100 Scots. And to the third,— Access was never denied, except when they came to disturb her when she was upon rest.
The Lords, considering the circumstances and specialties of this case, and inclining more to equity than strict law, found the bond extinct, and ordained it to be given up to be cancelled; and assoilyied him therefrom; he paying the 100 merks to Gemmil the beadle, with which he was burdened.
Some of the Lords, though they were convinced that it was the lady's intention to restore him his bond, yet; they thought it a dangerous preparative to take away bonds by single testimonies. But others thought there was a concourse and chain of specialties here, that could hardly occur in any other case, which put it beyond the danger of drawing any bad consequence from it.
