Selected quad for the lemma: act_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
act_n	council_n	parliament_n	privy_a	2,717	5	9.7040	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A52358	Some doubts & questions, in the law, especially of Scotland as also, some decisions of the lords of Council and Sessions / collected & observed by Sir John Nisbet of Dirleton ... ; to which is added, an index, for finding the principal matters in the said decisions.	Nisbet, John, Sir, 1609?-1687.; Scotland. Court of Session.	1698 (1698)	Wing N1170; ESTC R16027	472,476	492

time of the debursements or from the time the same was liquidat and cleared by the Suspenders Oath And it was Found That Compensation should be sustained from the time of the Debursements seing the said Sums then grew to be due Debts being illiquid either because not constitute by Wr●te or Decreet or because they are not due in Money but in Victual or such like which must be liquidat as to the Prices and Value before there can be any execution for the same the Question may be of greater difficulty as to the last seing compensatio is s●lutio and ipso jure minuit whereas a Debt in Money cannot be said to be payable and far less to be payed in Victual unless the Creditor be content to be satisfied that way D. 310. Dalling contra McKenȝe 7 December 1675. A Woman is understood to be praeposita negotiis domesticis so that for the Provision of her House she may take from Fleshers and Baxters and others such Furnishing as is necessary and her Declaration and Oath may be taken and ought to be trusted as to the same and the Husband is presumed not to know the particular Quantities and these who do furnish are not oblidged to enquire whether her Husband has given her Money sufficient to provide his House if she be a Person that is not inhibite seing the Husband has a remedy if he has any suspition that she may abuse and wrong him and may inhibite her Glendoick Reporter D. 311. Sheriff of Perth contra _____ eod die IT was Found That the late Proclamation remitting Fines due upon the contraveening of Penal Statutes ought to be extended to Ryots and Fines upon the committing of the same before the said Proclamation the Persons being thereafter Convict before the Sheriff Glendoich Reporter D. 312. Lord Arnistoun contra Patrick Murray of Deuchar 8. December 1675. WHen Lands are pretended to be thirled to a Mill the Heretor has good interest to pursue an Improbation against the Heretor of the Mill of all Rights and Writes bearing express constitution of the said Servitude But that General viz. That the Defender should produce all Writes which may import Thirlage ought not to be sustained in respect there may be Writes importing Thirlage consequentially which the Defender is not obliged to know what the import of the same may be and it were hard that upon pretence of such an Interest the Defender should make his Charter Chest patent to the Pursuer and the Pursuer has a Remedy if he apprehend that the Defender may trouble him upon pretence of Writes which may import consequentially Thirlage he may force him to produce the same by intenting a negatory Action and Declarator of Freedom D. 313. _____ Laird of Wamfray eod die THE Act of Parliament against Protections 3d. Sess of His Majesties 1st Parl. Cap. 3. giving Power to the Lords of Session and Exchequer Privy Council and Justice General to grant Protections to persons summoned to appear before them is only to be understood in that case when they are obliged to appear personally to give their Oaths or to be Witnesses and cannot appear by Procurators And such Protections ought not to be granted upon pretext that Processes of Compt and Reckoning and others cannot be managed without their own presence And this was Found upon a Bill given in by Johnstoun of Wamfray whereby he desired a Protection And yet it is thought that in some cases where it is evident that there is a necessity of the Defenders presence to give Information in the point of Fact especially in general Actions of Compt and Reckoning Protections ought to be granted D. 314. Veitch contra Hamilton 9. December 1675. A General Action of Compt and Reckoning at the instance of Pupils and Minors Post tutelam curatelam against their Tutors and Curators is not consistorial and competent to be pursued before the Commissars where the import of the Action exceeds the Sum and value to which the Commissars may be Judges And the pretence that there are diverse Articles and none of them doth exceed the said Sum is of no weight seing the Reply of articulatus Libellus is only in the case where the Debitor is pursued for diverse Sums which in effect resolves in diverse Actions Whereas actio tutelae is but one general Action and upon one Ground viz. The Defender is Lyable as Tutor and Curator whatever and how many soever the Articles of Intromission be And upon the Ground foresaid the pursuite before the Commissars was Advocate Newbyth Reporter D. 315. The Creditors of James Mastertoun and of his Relict Alice Thine eod die BY our Custom and the Custom of diverse other Nations tho there be a Communion betwixt a Husband and a Wife as to Moveables yet the Husband dureing the Marriage has not only Administration but is Dominus actu and may dispose of the same not only for Onerous Causes but by way of Donation and the Wife has only a Right and Interest habitu which exit in actum after the Marriage is dissolved as to all the Moveables belonging to them the time of the Dissolution And yet if the Husband dispose of his Moveables in fraudem and of purpose to prejudge the Wife and to evacuate her Legitime and part of the Moveables as was Alledged in the case in question the circumstances being such as did evince the Husbands fraud and purpose to settle his Estate upon his near Relations after his Death in prejudice of the Wifes Interest such Donations will not be sustained The said James Mastertoun having made a Disposition in favours of his his Wife with the burden of his Debts so that his Creditors should not be prejudged but that the said Right should be affected with the said Debts It was debated among the Lords what the import should be of the said Clause and if the Creditors of the Husband had thereby a real Interst in the Goods or only a personal Action against the Receiver of the Disposition And it was thought that the Goods being extant and undisposed of the Receiver of the Disposition with the said quality was in the case of a Trustee or Executor And the Creditors of the Husband competing upon their Diligence to affect the same with these of the Wife would be preferable But if they were disposed of by the Wife tho the price be not employed for the use of the Creditors tho they be extant the Husbands Creditors has no Interest in the same seing the Wife was Domina and might sell the same and Buyers finding her in possession are not concerned to enquire what way she should employ the price Vide infra 17. December 1675. Thomson contra Eleis D. 316. Scot contra Kennedy 10. December 1675. A Father or any other person disponing his means may qualify his own Gift and in special with that Provision that if the persons be Pupils or Minors the same should be Administrate by the persons named in

by a Bill given in by a Widow Desireing that she may be allowed to intromet with the Cropt and Goods pertaining to the Defunct without hazard of vitious Intromission The Lords thought That such Warrands being Voluntariae Jurisdictionis and the Commissaries being entrusted for securing the Estate of Defunct persons to the nearest of Kin and Creditors and other persons having interest did Remit the Petitioner to the Commissars of the place Sir David Falconer Younger was for the Petitioner and subscribed the Bill D. 222. Meldrum contra Tolquhone 20. January 1675. IN a Declarator of Escheat at the instance of Meldrum contra Tolquhone It was Alledged That the Horning was Null because the Party was Charged only upon six days albeit he dwelt benorth the Water of Dee And by the Act of Parliament 1600. cap. 25. All Charges of Horning against persons dwell and benorth Dee should be upon 15. dayes at the least And by the 138 Act Parl. 12. K. Ja. 6. It is statute that in case any Denounciations of Hornings should be at the Mercat Cross of Edinburgh upon Charges upon unlawful and impossible Conditions the same and Horning thereupon should be Null And that there was a Decision in Duries Book in Anno 1625 that Hornings even upon Bonds against persons benorth Dee were Null It was Answered That the Act of Parliament in Anno 1600 was only in the case of Hornings upon Citations or Charges to find Law borrowes or for compearing before the Council as appears by the narrative of the said Act which doth interpret and regulate the dispositive Words of the Act. And that the Act of Parliament in Anno 1592. doth not militate in the case of Hornings upon a Clause of Registration seing after that Act until the said Act 1606 such Clauses that Hornings should be upon 6 dayes were not thought and de facto are not impossible And as to the practique It was Answered that there was a late practique in Anno 1664 upon a Debate in the Innerhouse in the case of Philorth contra Frazer Whereby it was Found That the Act of Parliament 1600. is to be understood in the case foresaid where Hornings are upon Charges of the nature foresaid for appearing before the Council and such like but not in the case in question and others of that nature where Hornings are upon Bonds and Clauses of Registration therein contained which do bind and cannot be questioned by those who do oblidge themselves The Lords considered that the narrative of the said Act doth clear the meaning of the dispositive words and there needed not to be a Law and remedy as to Hornings upon Clauses of Registration seing Parties could not help themselves as to Charges to compear before the Council and others of that nature without a Law But they were Arbiters and could make a Law to themselves as to Clauses contained in Contracts or Writes if they thought them grievous or impossible And that there appeared to be a singularitie in the case mentioned by Durie seing the Charge was given in Orkney upon 6 dayes which could not well be satisfied And therefore the Lords for the reasons foresaid did sustain the Horning Actor Hog and Thoirs alteri Falconer and Forbes In praesentia D. 223. Carfrae contra Telzifer eod die A Person being pursued as representing a Debitor upon that passive Title that he had behaved himself as Heir to the Defunct In sua far as being conveened at the instance of another Party he had proponed a peremptor Defence The Lords Found That the proponing of a Defence upon payment or such like was not such a Deed as could infer the Passive Title of Behaving unless it were adminicled with Intromission or otherwayes Nevoy Reporter Hamiltoun Clerk Vide 10 December 1674. D. 224. Chalmers contra Ferquharson and Gordon 22. January 1675. THE Lords Found That a Person being Pursued as Intrometter and having Alledged that before the intention of the cause she had obtained a Gift of her Husbands Escheat the said Defence is Relevant And that after Intromission there being a Donator confirmed before intention of the Cause or the Intrometter obtaining a Gift tho not declared there being no necessity to declare the same against her self that the same doth purge even Intromission before the Gift Some of the Lords were of another opinion upon that Ground that ipso momento that the parties intromet there is a Passive Title introduced against them which doth not arise upon the intention of the Cause but upon their own Act of behaving and Jus being semel quaesitum to Creditors cannot be taken from them except in the case of an Executor confirmed before the intention of the Cause against whom the Creditor may have Action And that there is a difference betwixt a Donator having declared and an Executor having confirmed In respect the Executor is lyable to Creditors but not a Donator and an Appearand Heir having become lyable by intrometting with Moveable Heirship and behaving as Heir his Intromission is not purged by a supervenient Gift seing his immixing is Aditio facto and there is eadem ratio as to Intrometters who are Executors a tort as the English Lawyers speak and wrongously And in effect by their Intromission adeunt passive and are lyable to Creditors Strathurd Reporter D. 225. Jean Maxuel contra Mr. William Maxuel eod die MR. William Maxuel Advocate being pursued at the instance of Jean Maxuel natural Daughter to Sprinkel for 5000 Merks Alledged due to her by Bond granted by the said Mr. William which she did refer to his Oath did give in a qualified Oath Declaring that he had granted a Bond to the Pursuer at the desire of her said Father but the same was never delivered and was so far from being effectual that by the express order of Sprinkel he was not to deliver the same to the Pursuer without his warrand and that he had given him order to destroy the said Bond in consideration that he was not satisfied with the Pursuers carriage and that he had left her a Legacy which the Defender had payed This quality was thought to be so intrinsick that his Declaration could not be divided so as to prove the granting of the Bond and not the Quality Specially seing the said Quality was adminiculate with Letters which the said Mr. William did produce which were written by Sprinkel to the same purpose Yet by plurality It was Found that his Oath proved the Lybel and Decreet was given against him Thereafter the said Mr. William obtained a Suspension upon that Reason that the Decreet was Extracted by favour of the Clerks not without precipitation after that he had applyed to the Lords and desired that the case might be reconsidered And that the Lords had Ordained the Decreet to be brought back and because the party refused they past a Suspension The case being debated in praesentia The Decreet in foro was obtruded and that it was just upon the matter seing

prejudged by any Deed of the Rebel in filling up of the same It was also Found That albeit the Lord Bamff by his Letter was bound up that he could not question the said Bonds upon the pretence foresaid of Condictio or any other that might have been competent against the said John Lyon Yet notwithstanding of the said Letter the King might have given and he might accept either a Gift of Lyons Escheat or a Right from the Donator and thereupon might claim Right to the said Sums Thesaurer Depute Reporter Mr. John Hay Clerk D. 406. Tennent Young and others contra Sandy Procurator-Fiscal of the Regality of Ogilface eod die IN a Declarator of a Liferent-Escheat It was Alledged That there could be no Escheat upon the Horning Lybelled Because it was upon Letters direct by the Secret Council upon a Decreet of a Regality Court And by the Acts of Parliament The Lords of Session are only warranted to direct Letters of Horning summarly upon the Decreets of Sheriffs and Baillies of Regality and other Inferior Judges The Lords Thought That the Council could not direct Letters of Horning upon the said Decreet Seing before the Acts of Parliament Letters of Horning could not be direct upon the Decreets of Inferiour Judges summarly without a Decreet Conforme before the Lords of Session And Statutes being Stricti Juris the Council could not direct Letters unless by the same Statute they had been warranted to that effect and it appears that the said Statute was founded upon good Reason and Considerations tho they be not exprest viz. That the Lords of Session are always sitting in the time of Session and in vacance there is some of their Number appointed to receive and pass Bills of Suspension if there be cause whereas the Council sitteth but once a Week ordinarly in Session-time and in Vacance but thrice 2. The Lords do not pass Suspensions but upon good Reasons and they are to consider the said Decreets which is not proper for the Council 3. As Suspensions are raised of the said Decreets so oft times there is a necessity of raising Reductions and the Lords of Council are not competent Judges to the Reduction of the said Decreets But the Lords thought not fit that there should be a question betwixt them and the Council concerning their Priviledge and therefore did forbear to give answer until some accommodation should be endeavoured And it was proposed by some that the Decreet of the Regality Court being for keeping of Conventicles and that practice concerning so much the Peace of the Countrey that all Disturbance thereby might be prevented and upon that account it being recommended to the Council by Act of Parliament that they should see the Laws against Conventicles put effectually in execution The Council as they might conveen the Contraveeners before themselves may commissionate the Inferiour Courts to proceed as their Delegats and upon their Decreets given by them as their Delegats that they may direct Letters of Horning Thesaurer-depute Reporter D. 407. Ker contra Hunter 20 December 1676. A Personal Action was sustained upon a Right of Annualrent against the Tennents during their Possession for the Mails and Duties effeirand to the said Annualrent Thesaurer-depute Reporter Mr. Thomas Hay Clerk D. 408. Carnegie of Balmachie contra Durham of Anachie eod die THE Lords Found That albeit by the common Law Annualrent be due for Tocher yet by Our Custom it is not payable unless it be so provided by the Bond or Contract for the same but in the case in question They Found the Defender lyable to pay Annualrent in respect the Debitor had been in use of payment at the least had promised to pay Annualrent for certain years bygone and Annualrent once payed implyes a tacite Paction to continue the payment of the same Thesaurer-depute Reporter _____ Clerk D. 409. Veitch contra Pallat. eod die THE Lords Found That a Rebel contracting Debt after Rebellion cannot assign in satisfaction of the same any debt due to him and tho the Assigney should transact with the Debitor of the Debt assigned before a Gift and Declarator the Donator will be preferable Lockheart and Hog for Veitch alteri Cuningham and Seaton Gibson Clerk In praesentia D. 410. Inter eosdem eod die AND in the same Case It was Found That a Bond granted after Horning tho it did bear that the same was for Wines yet being the Rebels assertion could not prejudge the King but it being alledged and offered to be proven that the said Wines were truely furnished before the Rebellion The Lords Found the Alledgance relevant to be proven only by the Rebels Compt Books and by Books of Entry and not simply by Witnesses without such Adminicles in Write D. 411. Pallat contra Veitch eod die THE Lords likeways Found That the Presumption introduced by the Act of Parliament that Gifts of Escheat are simulate in respect that the Rebel is suffered to possess is only in that case where the Rebel has a Visible and Considerable Estate of Lands or Tacks and is in possession of the same but when the Rebells Estate is either not considerable consisting only of an Aiker or two which was the case in question or in nominibus and not known to the Donator so that the Donator had reason not to trouble himself and to look after either that which was inconsiderable or which was not known to him there is no ground to presume that the Gift is simulate D. 412. Tait contra Walker 22. December 1676. THE Children of a second Marriage having pursued the Son of the first for Implement of their Mothers Contract of Marriage and the Provisions therein contained in their favours It was Alledged That they were Debitors themselves in swa far as they were Executors named and confirmed to their Father And It being Replyed That the Testament was given up by the Mother they being Infants for the time and she was not their Tutrix and so could not bind them The Lords Found That there was Difficulty in the case in respect the Pursuers were now past 40 years and they had never questioned or desired to be reponed against the said Confirmation And on the other part It was hard that a Deed of their Mother having no Authority to do the same as Tutor or Curator should bind them and there was no necessity to be reponed against the same it not being their Deed and being ipso Jure void and therefore before Answer the Lords thought sit to try if the Pursuers had meddled with any part of the Executry or had done any Deed that could import Homologation of the said Testament Newbyth Reporter D. 413. _____ contra _____ eod die IT was questioned amongst the Lords whether an Inhibition could be sustained albeit the Execution did not bear a Copy to have been affixt at the Mercat-cross And it was Resolved as to the future it should be declared that Executions of Inhibitions should be null unless Copies were affixt In