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Scottish Court of Session Decisions >>
Pollocks v Fairholm. [1632] Mor 3209 (13 July 1632)
URL: http://www.bailii.org/scot/cases/ScotCS/1632/Mor0803209-033.html Cite as:
[1632] Mor 3209
A bond was sustained, tho' granted on death-bed, being for goods furnished. The Lords repelled an allegation, that another bond by the same clinique was for furnishing made to his father. They refused to sustain the bond for these, except it were alledged, that the defunct was heir or executor to his father, whereby law would have obliged, him to pay the sums.
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Some Pollocks being served heirs to Robert Halliday, pursue reduction of two bonds of some moneys made by him, as being done on death-bed, and so in prejudice of his heirs. The defender, alleging, that these same bonds were given of these sums for furnishing made to the defunct, viz. for furnishing of malt, as much as extended to 500 merks, which was the sum contained in the one bond, and which was at sundry times made to him, and whereupon the said parties having compted, finding it to amount to this sum, he then made and subscribed this bond;—the Lords found this allegeance relevant, to sustain the bond, albeit it was made on death-bed, the forefaid real furnishing being proven to have been really made, equivalent to the said sum, and which the Lords found probable by witnesses, the furnisher also giving his oath upon the truth of the furnishing after probation. And it being also alleged, for the other bond, containing other 500 merks, that the creditor had recovered this bond, for satisfaction of the like sums owing before to him, and particularly which he had furnished to the defunct's father, which then the defunct took on him by his bond to pay;—the Lords found this allegeance relevant for so many of the sums, as the defender should prove furnished to the defunct's self, but repelled that part of the allegeance, anent the furnishing made to the defunct's father, for the which they would not sustain the bond, except it were alleged that the defunct was heir or executor to his father, whereby in law he would have been liable to pay sums addebted by his father to this defender.
Clerk, Gibson.
Fol. Dic. v. 1. p. 214. Durie, p. 645.
