Scottish Court of Session Decisions

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.

Eleises, Daughters to deceased Mr James Eleis of Stanhop-Milns,
v.
Mr James Watson of Saughton

Date: 7 February 1712

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Mr James having sold his lands of Saughton to Watson's father for 34,000 merks, for which he gave bond, and 13,000 merks being paid to some pressing creditors; after counting, there was anew bond given for £14,000 Scots, as the remains of the price, made payable to some particular creditors therein enumerated, and the superplus to the said Mr James his heirs and assignees, secluding his executors. This bond he assigns, some few days before his death, to his daughters, on a narrative of love and favour, so far as it was due. Upon which right they pursue this Saughton, as heir to his father, for payment; deducing the special sums for which it was destinated, and crave only decreet for the superplus.

Alleged,—I must have farther allowance of sundry partial payments made to your father, instructed by tickets and receipts under his hand. Which were in two classes; some prior to the bond pursued on, and others posterior thereto. As to the first sort, it was objected that law and reason presumes all these were discounted at the time of granting the bond, and were there allowed.

Which presumption the Lords sustained; and refused to allow these tickets in the sum now pursued for.

All the difficulty arose from the receipts posterior to the bond; against which it was objected, That, esto they were holograph, they could never prove their date against them, who were heirs, at least apparent heirs, to their father; law presuming them to be on deathbed; at which time he could do nothing to prejudge them, the bond being heritably conceived, secluding executors.

Answered, 1mo,—Apparency is no sufficient title, except you were entered and served. 2do, You are so far from founding on that title, that you have betaken yourself to your singular title as assignees; and your pursuit goes on that ground. 3tio, They can never be reputed as done in lecto; being all fairly written, and subscribed with his own hand; whereas your assignation is signed by two notaries for him, expressly bearing, ratione cegritudinis, that he could not write. 4to, Though a man cannot grant a bond upon deathbed, to burden his heir, yet what law hinders him to uplift a sum, whether heritable or moveable, and give his debtor a valid discharge? And which the Lords sustained in July last, against this same Laird of Saughton, in favour of Mr David Ogill of Popilhall.

Replied,—The Lords have found apparent heirs, even without a service, might reduce deeds done to their prejudice on deathbed; as in the case of Balmerino's Creditors against the Lady Couper, 25th November 1669; and Colonel Heriot's Apparent Heir against his Creditors, 23d February 1676; and if persons on deathbed were permitted to uplift heritable sums, it would make that privilege given to heirs very ineffectual. For is not the heir as much prejudged, by uplifting sums heritably secured, (which would fall to him by law,) as by his predecessor's contracting debts then? And though the Act of Parliament 1621 discharges bankrupts only to grant bonds or assignations, yet Sir George Mackenzie, in his Observations, and others, tell us, it must be extended to discharges as well as bonds; and so it was found, 28th November 1676, Carmichael against Demster.

Duplied,—It is clear, evidentia facti, thir receipts have been given in liege ponstie, for they are all writ with his own hand; whereas their assignation is signed by notaries, so they are necessarily anterior to it. And it is strange doctrine to assert a man cannot receive his own money, and give receipt for it at any time in his life. Yea, Stair, tit. Succession, sec. 29, tells such a discharge was sustained, though the defunct, at delivery, distributed the money to his friends as he thought fit, without ever asking his heir's consent; and cites a decision out of Durie for it. Yea, an assignation, though onerous, will not hinder the debtor to pay the cedent, any time before intimation, (though, he thereby incurs the warrandice, but the debtor is secure;) much less will this gratuitous assignation, never intimated in his lifetime, but only to take effect after his death, hinder Saughton to pay their father any part of the debt when he called for it, But the truth is, all the payments were long before their assignation; and the father acts more ingenuously than they, for he assigns only to what is due.

The Lords repelled the objections against the discharges; and found the payment bona fide made; and that thir assignees could not quarrel the same; and that Stanhop-Milns, (though he had been on deathbed, which did not appear,) might have uplifted the sum in whole or in part. What influenced the decision very much was, That the payments had been truly and fairly made; and it was both unreasonable and unjust in thir daughters to seek payment over again, because the receipts and tickets wanted writer's name and witnesses; though they knew them to be their father's hand-writs. And, though they shunned to be heirs, as unsafe, yet they claimed the privilege belonging to heirs, that law presumed such writs to be done in lecto; and yet the title they founded on was an assignation visibly made on death-bed he not being so much as able to sit up then, and sign his name; but forced to cause it be done by two notaries, because of his prevalent sickness and bodily weakness; which behoved to be great when he could not so much as put his name to a writ. And the Lords looked upon this objection as a mere catch, to take advantage of one whose father had paid a part of the debt already.

Vol. II. Page 718.