Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.

George Mosman
v.
Adam and Andrew Bells of Belford

1670. February.

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In the suspension Adam and Andrew Bells of Belford against George Mosman, this reason of suspension was repelled, that the charger's right being a right flowing by translation from Elizabeth Cunyghame, who had an assignation to the bond charged upon, her assignation was never intimated to the suspenders in the cedent's lifetime, and so could not produce summary action by a charge; but ought to have been pursued upon, via ordinaria, in regard that the assignation was intimated to James Bell, (who was principal debtor in the bond,) before the cedent's decease, which was found a sufficient intimation likewise to the cautioners. Vide Dury, 23d January, 1624, Stevenson and the Laird of Craigmillar. Vide Cujacium, Codice, De duobus reis. See 28th November, 1678, Reid and Bruce of Newton.

The second reason of suspension was found relevant, viz. that the suspenders were not in tuto to make payment of the sum to the charger, because the charger's author's right was questioned, and under reduction at the instance of Quintene Findlay and his wife, as nearest of kin to John Lithgow, granter of the assignation: the reason of reduction was death-bed.

Whereto it was replied,—That this bond of Belford's was a bond which might lawfully be assigned on death-bed, because, in the body of it, it bears a dispensation and a power to him to assign, dispone, and transfer the said bond, etiam in articulo motis, to whom he pleased: and so this dispensation must save the said assignation from reducing ex capite lecti.

Upon this reply, my Lord Halkerton Was content to give both parties the Lords' answer. Who having very ripely canvassed the same, found it a point of great importance and weight, and demurred exceedingly thereon; and being the last week of the winter Session, they superseded to give their judgment thereon while the 1st of June. And truly it was so: for, on the one side, it would seem that the said dispensation should sustain the said assignation, though made on death-bed, because it is an act inter vivos, and it is uncontraverted but a man may dispone upon his heritage and heritable bonds for implement and performance of acts or obligements contracted by him in his liege poustie; exempli gratia, for payments of debts contracted before. Hope, titulo De Testamentis et Codicillis. Yet, on the other hand, it seems very hard that such a dispensation should be enough to empower a man to dispone upon his heritage in lecto ægritudinis, the cause of which prohibition is most rational and most excellent, viz. because the most part of men in confinio mortis constituti are not sanæ mentis, and not in that integrity of mind as is sufficient for a man who would dispose upon so important rights: likewise the law has wisely considered how much a man, at such a time, lies exposed to the solicitations and importunities of friends or flatterers in whom he has no interest, and how easily a man, in that case, may be wrought upon to give away his means to the prejudice of his righteous heir. So then, this being the reason of that noble custom, no dispensation or reservation which a man makes in his liege poustie should be sufficient to give him a power to dispose upon heritage in death-bed; unless he had likewise a dispensation and assurance from God Almighty, that when he should come to die, he should have his wits fresh, vigorous, and rational, as may be required in a man who is to dispose upon his heritage; which assurance none can have.* Item, If such dispensations were sustained, the whole country would make use of the same; and so that Useful custom Would be rendered useless, where our law repetes dispositions of heritage upon death-bed. (Vide infra, No. 227.) Item, The Lords have been loath to determine whether or no the King, under his Great Seal, can dispense with the said law, and give a man power ea non obstante to test upon heritage; if which be dubitable, much more must it be so whether every private person may reserve that power to himself, by an act inter vivos.

Advocates' MS. No. 7, folio 70.

* Vide omnino zacchiam Q. M. Legalium, lib. 2. tit. 1. Quaest. 19, per totum. Vide infra, 26th June, 1677 Birnies against Morray, No. 580, § 2; item, November, 1677, Gray of Wariston and James Cunyghame, about Doctor Cunyghame's estate.