Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION IV.

Private Deed, how far probative.
Subject_3 SECT. I.

If probative of its Onerous Cause against Creditors and Donatars of Escheat.

Robertson
v.
Robertson

Date: 9 January 1672
Case No. No 446.

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Mr William Robertson pursues a reduction of a disposition of lands to David Robertson, granted by David's father, as being in defraud of him, being the father's lawful creditor, betwixt most conjunct persons, without a cause onerous; and though the disposition appear to be for particular debts, yet it cannot prove contra tertium. The defender alleged, Absolvitor, because he offered him to prove, by the creditors' oaths, mentioned in the disposition, that he had paid to them the sums particularly expressed therein. It was answered, Non relevat, unless he could instruct that they were debts truly due by the father, at the time of the disposition; at least, that he had retired and preserved the cancelled bonds; and that every creditor was but singularis testis.

The Lords found, That the oaths of the several creditors conform to the disposition, was sufficient to take away the presumption of fraud, and that the defender was not obliged to keep the retired bonds 40 years by him.

Fol. Dic. v. 2. p. 251. Stair, v. 2. p. 40.