United Kingdom House of Lords Decisions

The present respondent afterwards offered to refer it to his mother's counsel, whether they had not seen the cancelled deed in her custody; but they declined to depone, and the Court, on the 25th of July 1711, “In respect that in the debate, Dame Helenor's having the cancelled disposition in her custody was not refused, and that her advocates refused to appear to give their oaths of calumny, because of the appeal interposed, assoilzied the said Sir John Schaw.”

Entered, 25 Jan. 1725–6.

The appeal was brought by the appellant as executrix of her mother from “two decrees of the Lords of Session made the 19th and 25th days of July 1711.”

Heads of the Appellant's Argument.

The bond for payment of the annuity of 8000 merks, executed by Sir John Schaw the father, with consent of the respondent his son, was for a full and valuable consideration, given at the time of executing that bond, equal to the annuity, besides the settlement Dame Helenor made of her estate of Carnock and Plain in favour of the respondent, at same time, and as a part of the consideration of the annuity.

The settlement in question never was produced, so that it could not appear whether it was ratified or not, if that had been necessary: nor was any proof made or attempted to shew that it was cancelled, much less that it was cancelled by Dame Helenor. No inference ought to be drawn from her counsel's not appearing to answer upon oath: this was an unusual proceeding, and ought not to have been allowed. Their reason son not appearing was, because, after the interposing of the protest for remeid of law, the appearing at any further proceeding in that court might have been construed as a passing from the appeal. Besides, it is immaterial whether the cancelled deed was in Dame Helenor's hand or not, it might have come to her accidentally after her husband's death; or the might have recovered it from the custody of third parties, and have shewn it to her counsel, to be advised as to the import and effect of it: therefore, though her counsel had seen it in her custody cancelled, it would have been no evidence that it was cancelled by her. Dame Helenor, in the whole course of the action, absolutely denied that she had cancelled the said settlement, and therefore it was not, as the appellant conceives, consistent with the rules of justice or equity to presume that she had done so.

But supposing the said Dame Helenor had cancelled the deed (which she did not), her cancelling it would not have avoided the covenants of it, and the tenor might easily have been proved: she offered, too, to have executed a new deed to the same purport, which she afterwards actually did.

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