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Scottish Court of Session Decisions >>
The Viscount of Arbuthnot v Allardice of that ilk [1681] 3 Brn 401 (4 June 1681)
URL: http://www.bailii.org/scot/cases/ScotCS/1681/Brn030401-0562.html Cite as:
[1681] 3 Brn 401
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
The Viscount of Arbuthnot v. Allardice of that ilk
Date: 4 June 1681
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The Viscount of Arbuthnot pursues a reduction, against Allardice of that ilk, of a pretended tack alleged subscribed by the Viscount's father, on this reason, That, wanting a writer's name and witnesses, it was presumed to have been subscribed in lecto, at which time he could not prejudge his heir. Allardice, for his defence, repeated a declarator he had intented against the Viscount, to hear and see it found and declared that it was holograph, and his father's hand-writ, and was delivered, read, and seen, by famous persons, in the Viscount his father's lifetime; and therefore that he, as heir, may be decerned to extend the said minute of tack.
The declarator and defence being admitted to their probation, and it being this day advised, they took the Viscount's oath of calumny, if he had just reason to deny that it was his father's hand-writ; and he declaring that he could not tell, the Lords allowed them to the 10th of July next for proving, comparatione literarum, it was the late Arbuthnot's hand-writ, as also by witnesses who saw it in Allardice's custody before the late Arbuthnot's death; for, esto it were holograph, the difficulty still remains, unless it be proven that it was read and seen in the writer and granter's lifetime.
This farther term of probation the Lords indulged them, because they complained they were cut short of insisting in their own declarator, by engrossing it, by way of defence, into the Viscount's reduction. But they had prevailed with the clerk, and obtained an act for proving on their own summons, which induced the Lords to prorogate the time of leading probation to the 10th of July next.
Another reason of the Viscount's reduction was, that the tack is null, being without an ish. Answered,—It bore these words, “to endure as long as Allardice pleased, he paying two bolls of tack-duty yearly;” which gave him the nomination of the endurance; and he craved it might last for 500 years to come.
The Lords declared, if Allardice proved the other points, they would determine it to last nineteen times 19 years, which was as long an endurance as ever any tack used to continue in Scotland; but the Lords sustained themselves as having, power to determine the endurance, without any debate. So that it may be reconsidered; for it may be debated, if a tack, having no other ish but as long as the tacksman pleases, be valid, and if the Lords, as boni viri, may determine the duration thereof.
Sir George Lockhart affirmed, that it was a vulgar error to say, that a holograph writ was presumed to be on death-bed, and so ought not to prejudge the heir; for he was clear a holograph writ ought to militate against the heir of the subscriber, unless, by other adminicles and documents, they instruct that it was subscribed when he was sick and on death-bed. Yet the common received practick seems contrary.
