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.
Hamiltons v. Pringles
Date: 20 December 1709
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In the competition betwixt Hamiltons on the one part, and Pringles on the other, both creditors to Daniel Nicolson, the Pringles produced two bonds, one for 4000 merks, in July 1693, and the other for 1000 merks, in February 1694. Against both which it was objected by the Hamiltons, that the 4000 merks' bond was holograph, and so did not prove its own date, and must be presumed to be on deathbed; and the 1000 merk bond was ten days after he was sentenced to be hanged for his accession to poison and forgery, and within four days after that bond he was executed; and so was materially granted on deathbed, when he could neither prejudge his creditors nor heir. Besides, it was a donation by an adulterer to his adulteress and her bairns, and so reprobated by law.
Answered, 1mo,—The law of deathbed only took place with us in case of sickness; and being a custom peculiar to this nation, and neither known to the Romans nor our neighbours, it is not to be extended to the case of one sentenced for a capital crime, who is in perfect health, and who may be reprieved, or make his escape out of prison; yea, if, by the fourth Act, Parliament 1696, he live sixty days after the granting the bond, he can never be interpreted to have been on deathbed. And the reason of law ceases; for sickness clouds the mind and disturbs the judgment, so as exposes them to the solicitations, importunities, and impressions of those about them, nothing of which can be applied to one after the sentence of death. 2do, If need were, thir bonds can be supported and adminiculated by onerous causes, besides their own narratives. Likeas, upon application to the Lords of Session by the Pringles, his oath was craved on the true, just, and onerous causes of these two bonds; and he actually deponed that they were true, real debts; which is a great confirmation of their verity; and so, being juratum, cannot be now quarrelled. And if, though after condemnation, he can do no deed to prejudge the risk, to whom there is a jus quœsitiim, yet, quoad his heirs, he is at absolute liberty.
Replied,—It has ever been received as an uncontroverted principle, that a man, sentenced to die, habetur pro nullo et tanquam civiliter mortuus; and is by the Roman law called servus pœnœ, being under the maxima capitis diminutio; and so Horace calls Attilius Regulas capite minutus et capitis minor; and so can do no valid deed; as the Lords found on the 2d of January 1683, Colt against Somerveill, that, he having charged after he was capitally sentenced, the charge was null; and so freed him from his attesting a cautioner in a suspension. And the learned Craig, lib. 1, D. 11, is positive, that a man after condemnation can do nothing to burden his heirs; and states sundry other parallel cases: as where one is shut up in a house infected with the plague, or is going to be cut of the gravel, or engaged in a duel, how far they are to be reputed in lecto in such circumstances. And seeing the Lords have sustained equipollent deeds to infer sanity, besides those common ones of going to kirk and market, such as playing at the foot-ball, going in a boat to shoot marrots, (as was found in Stewart of Rossyth's case,) why may not equipollent cases be allowed to infer deathbed, as well as morbus sonticus or real sickness? Is not the judgment of a man condemned, and in view of eternity, within a few days as much disturbed as any sickness can do?
Some thought the characters of a condemned person, being servus pœnÆ et capite minutas, given them by the Roman law, did not quadrate with the mildness and temper of the civilized nations now. The Lords, to shun deciding this nice point, if one condemned must be reputed on deathbed, ordained them, before answer, to adduce what adminicles they could, to astruct the onerous cause of the bonds quarrelled, and to produce his oath, taken by warrant of the Lords, to see how far the same may be forfeited thereby.
