In what cases a Private Deed not probative against the Heir.
Ross v. Moubray
Date: 20 February 1725 Case No. No 479.
Found, that a bond upon death-bed, bearing the cause to be for alimenting, excluded the defence of prescription.
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Agnes Ross obtained from her son, Patrick Moubray, a bond for 5000 merks when he was on death-bed, which bore to be for the education and aliment she had given him for fifteen years.
After his death, she pursued Margaret Moubray for payment of the sum in the bond, as having past by Patrick and served heir to his predecessor in certain lands which Patrick had possessed for three years as apparent heir, by which she became liable for Patrick's debts and deeds in terms of the act 1695.
It was alleged for the defender, That the act 1695 did not concern gratuitous bonds, and this bond being granted on death-bed, could not prove its onerous cause, but must be presumed gratuitous.
Answered for the pursuer, That she was able to support the truth of the narrative of the bond by a proof of her alimenting and educating him, which undoubtedly was an onerous cause for granting it.
Replied for the defender, That a claim for aliment prescribed in three years, and could not be proved further back, and that three years aliment could be no adequate cause for such a bond.
Duplied for the pursuer; That a regular aliment does not fall under the triennial prescription, and is nowise similar to mens' ordinaries, merchants' accounts, &c. 2dly, Though it did fall under that short prescription, yet the currency of the furnishing would preserve it as it does merchant's accounts; and, 3tio, The bond and acknowledgment under the defunct's hand was sufficient to exclude the defence of prescription.
30th June 1724.—The Lords sustained the bond in so far as it was onerous; and, of this date, they found, That Patrick Moubray having on death-bed granted bond to his mother, bearing the cause to be for alimenting, excludes the defence of prescription, they always proving alimenting.
Reporter, Lord Forglen.Act. Arch. Hamilton, jun.Alt. Ja. Boswell.Clerk, Justice.
Fol. Dic. v. 2. p. 256. Edgar, p. 178.
