A man having been many months ill of a tympanites, and while under the disease having signed a disposition, after which he did not live 60 days, but died of the same disease, yet went unsupported to kirk and market after granting the writ; the Lords finding the going to kirk and market clearly proved, sustained the disposition.
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James Craufurd skinner in Glasgow, having disponed some houses and other heritage to one Brichen, to breed up a boy in the skinner-craft, as a fund in all time coming; Mr Mathew Craufurd, his nearest heir, raises a reduction of that disposition as done in lecto; and a probation being allowed both parties, before answer, as to the state and condition of his health the time of subscribing, and his coming to kirk and market after the date of it, unsupported; the probation came this day to be advised; and it appeared that in February 1707, he was taken with a dropsy, but which did not hinder him to go about his business abroad till September thereafter: That on the 13th of August he signed the disposition quarrelled, and on the 15th he was all day in church, and thereafter he went to the flesh-market and bought some meat therein, as also cleared accounts with several people, and interchanged discharges with them; and went to Doctor Maitland's house, and consulted him, who depones he found him far gone in that species of hydropsy called a tympanites. Others said, his belly was as big as a woman's with child used to be; and that they looked upon him as a dying man before the disposition. The Lords agreed in this, that from the probation it appeared he had contracted the sickness whereof he died before he signed the disposition, and that he did not live 60 days after it, as the 4th act 1696 requires. Yet it was argued, that his going to kirk and market after the deed, seemed to be proven; which the law has pitched on as characteristic of sanity and reconvalescence, and is præsumptio juris et de jure, not admitting a contrary probation, seeing he was not struck by a morbus sonticus, which is impedimentum rebus agendis, such as acute fevers affecting the head, and disturbing our reason; which dropsies, gout, &c. do not; under such, men continue as sensible and rational as ever. The old custom was, they went to church though not in sermon-time, and then bought something in the market, and had a notary and witnesses pickt and chosen to the purpose; which the Lords justly suspected as affectata diligentia et ultimus naturæ conatus, a straining of nature, but here the man went carelessly to kirk and market as he was wont, without any view, prospect, or design, and nothing of fainting or supportation proven, as was in these cases cited by Stair, tit. Succession, in Graham of Garvock's case*, where he vomited in the return, which the Lords found sufficient to annul the disposition; and in Stewart's disposition to Drummond, in 1692, No 79. p. 3297. the Lords found his going out in a boat on the Forth to the fishing, and marroting, as pregnant and equipollent a deed, as his going to his parish church of Dunfermline. Some of the Lords thought his being hydropic in February, and dying of it in September, instructed sufficiently that he laboured under that distemper in August, when he signed the disposition, and so was incapable by law as constructione juris then in lecto: But the plurality thought the going to kirk and market so clearly proven, that they sustained the disposition, and assoilzied from the reduction ex capite lecti. It is not every going to kirk and market that will satisfy the law. I suppose a man in the paroxism of a hot raging fever, when their blood is exalted by the agitation of the animal spirits, and they have more than ordinary strength, should run to kirk and market, after a disposition signed by them. I believe no body will think this answers the design of the law, which is to give some mark of their recovery, though afterwards they may relapse and die of the same disease: And upon this ground to prevent clandestine attempts, the act of sederunt 29th February 1692, has most rationally provided, that the going to church when there is no congregation there, or going to the market, not in market time, when there is no confluence of people to observe him, shall not be sufficient to validate any prior right; for the custom was to go to the old kirk (that always stands open) with his notary and picked out witnesses at his back, and make a turn or two when there was no other body there, and then go to the Creams, and buy some little penny worth and so retun home. Which abuse
* See This case, mentioned p. 3298.
The Lords condemn, and declare they will not sustain, in time coming, any such practice.
Fol. Dic. v. 1. p. 219. Fountainhall, v. 2. p. 683.
