Scottish Court of Session Decisions

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

Sir Thomas Stuart of Gairntullie
v.
Sir William Stuart

1670. February.

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In an action betwixt Sir Thomas Stuart of Gairntullie and his brother Sir William, an assignation produced by Sir William, granted to him by his sister, to a bond for 20,000 merks, granted to her for a portion by her father, being quarrelled by Sir Thomas*, because he offered him to prove per testes omni exceptione majores, that their sister, at the time of the making that assignation, a good space before, as also after the same, was furious and mad, and so, during that time, could do no deed that can be valid, or can subsist in law.

Whereunto it was replied, That he offered him to prove that though she took whiles fits of distraction, yet that she had dilucida intervalla, and that it was in one of these that she granted the said assignation; and so the same, as done a sana, must be sustained.

The Lords ordained them to adduce witnesses hinc inde; Sir Thomas for proving the furiosity before and after the assignation, and Sir William for proving the dilucida intervalla: Whereupon, witnesses having been led by either side, and the Lords being about to advise the depositions, they desired to hear both parties' procurators; whereupon Sir George Lockhart, being for Thomas, did seriously recommend to the Lords their consideration what truly dilucidum intervallum was; and that every remission of that height of madness called by the physicians rabies furoris will not amount to make a dilucid interval, but that it must be a full intermission and clear cessation of the fury, and of all the degrees and steps of it; and therefore he confessed that by the depositions of the witnesses adduced by Sir William, it might possibly be proven, that at sometimes she was more calm and quiet, and not so agitated and tossed with the vehemency of the madness as at others: but he humbly conceived that that noways could infer a dilucid interval, which imports a firmness, gravity, and consistency of spirit, to validate an act of such importance as this assignation was, and which was no ways observable in her; and for this his opinion he cited Zacchias his Quaest. Medico-leg. lib. 2. tit. 1. quaest. 21. versus finem.

Sir George Mackeinzie, being for Sir William, regretted first that Sir Thomas should have been so cruelly unnatural as to have been the publisher of a pitiful infirmity his poor sister had been detained with, whereas the bonds of blood and nature should have made him conceal it rather, and extenuate it. Next he complained, that that ancient and excellent practice in our country of trying of idiotry

* By a prior solemn decision the Lords had found, though in this bond Sir Thomas was substitute to her, yet she remained still in the fee, and might assign the same, as she had done, not withstanding the said substitution. The information see beside me. Vide infra No. 48. [23d February, 1671, — against viscount of oxenford;] where there is something contrary.

or furiosity by an assise of thirteen sworn men, was now wholly despised and neglected, and no more used. Yet Sir George might have remembered that it has now been long obsolete, as Dury observes, 21st February 1632, Alexander against Kinneir.

Advocates' MS. No. 9, folio 71.