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Margaret Pollock v Robert Spreull. [1701] 4 Brn 498 (13 February 1701)
URL: http://www.bailii.org/scot/cases/ScotCS/1701/Brn040498-0002.html Cite as:
[1701] 4 Brn 498
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat this week in the Outer-House, and so the observe are fewer.
Margaret Pollock v. Robert Spreull
Date: 13 February 1701
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Margaret Pollock, as executor to John Spreull her husband, pursues Robert Spreull, in Drumgrain, for 100 merks contained in his bond.
Alleged,—The bond was conditional, and not payable till he attained the age of twenty-one years complete: and she replying, that he was past his minority before his death, and this being admitted to her probation, she adduced two witnesses, who deponed, That they saw him at Bothwell Bridge in June 1679, and though they knew not precisely his age, yet he was then between a lad and a man. And, for his death, she produced his testament, confirmed in 1697, bearing that he had deceased in 1695.
This probation coming to be advised, it was contended for the widow,—That the witnesses' conjecture of his age in 1679, as being then betwixt a lad and a man, must be fixed at his plena pubertas of eighteen; and so, in 1682, he was twenty-one; and from that year it must bear annualrent, conform to the bond.
Answered,—That was a very uncertain standard and measure; for some at twelve or fourteen will look more like a man than another of lesser growth at eighteen. And as to the assertion in the testament, that he died in 1695, that was no ways probative nor authentic; for it is known the Commissaries take no probation of the party's death, but insert it on the up-giver of the testament or inventary, their word. Yet the testament would prove that he was dead at the time it was offered to be confirmed.
