spe tantum altero est actu nostrum sed existente conditione resolvitur Nam meum est quod certâ lege meum est Jus Fluviat p. 790. n. 145. deinceps Cautioner and Relief IF a Cautioner be Denounced for his Cautionry will the Principal be lyable to relieve him of the loss of his Escheat Ratio Dubitandi The Principal is obliged to relieve him of what he should pay for him but not of the prejudice he should sustain for his Contumacy and Rebellion through his not payment Chaplainrie LAnds being holden of a Chaplain a Bishop being Patron if there be not a Chaplain and the Bishop delay or refuse to present what course shall be taken by the Vassals Heir or singular Successor to get Infeftment If the Bishop may not be pursued and the Director of the Chancery to hear and see him decerned to present a Chaplain and to exhibite to one of the Clerks of Session the Presentation to be registrat to the effect it may be known and patent to the Leidges and that within _____ days after he be charged And in case of disobedience verified by a Horning against him upon the Decreet The Director of the Chancery to direct Precepts for infefting of the Vassal Seing by Act of Parliament anent the Superiority of Chaplainries and such like The Patron to the Chaplain is appointed to be Superior to the Chaplains Vassals Quaeritur If Chaplains hold of the Bishops the Bishop will be Superior Answer It is thought not seing the said Act of Parliament is only in favours of Laick Patrons and was made when the Bishops were suppressed Charge to enter Heir AN appearand Heir being charged to enter Heir in General and renouncing Quaeritur If there may be a Comprising or Adjudication against him unless he be charged to enter Heir in Special Ratio Dubitandi That frustra should he be charged to enter Heir having already renounced Yet it is thought he ought to be charged seing a special Charge to enter Heir is Instar and in place of a Special Service and Infeftment thereupon and the Heir may repent that he renounced and may be better advised when he is charged to enter Heir in Special Chattels Real LIferents Non-entries Ward and such like Casualities that are successive when they are gifted they become real Chattels and will fall to the Executors of the Donator as is thought Quaeritur If when they are not gifted they should be considered also as Chattels so as to belong to the Executors of the Superior and not to his Heirs and Successors of the Land Cogitandum Children and Creditors IF a Father grant Bonds to his Children and thereafter contract Debt so that he is not in a condition to satisfie both his Creditors and Children Whether the granting of Bonds for Onerous Causes will import a Revocation of the Childrens Provision At least will the posterior Creditors be priviledged and preferable to the Children Childrens Provisions A Father having disponed to his Son of the first Marriage the Fee of his Estate with power to burden it with 40000 merks for provision of his remanent Children allanerly Quaeritur If he being then married upon a Woman of that age that he could not have Children by her should thereafter marry May he provide any part of that Sum to the Children he had thereafter of the last Marriage Or if the remanent Children in whose favours the Faculty is reserved can only be understood of the remanent Children of the first Marriage he having then five besides the Heir Mr. Alexander Gibson contra his Brother Civitas CIvitates Municipia intelliguntur nomine Reipublicae eis competit beneficium Legis leg 3. cod de Jure Reipub. Sc. Rempublicam ut pupillam extra ordinem juvari Frischius Tom. 2. exercit juris publici exercit 2. n. 17. sequen Praescriptio non currit minori sed Civitati Ibid. 35. Propter tenuitatem civitas novum vectigal imponit Ibid. 37. Gaudet Praescriptione centum annorum Ex solo pacto sine traditione quibusdam casibus habet in rem actionem Ibid. Vsus-fructus ei relictus durat centum annis Ibid. Clauses in Contracts of Marriage THe Contract of Marriage betwixt Alexander Sandilands and Agnes Sandilands his Wife Daughter to Robert Sandilands Dean of Gild beareth that provision Viz. That the said Robert and his foresaids are obliged to the said Agnes and her Spouse that at Robert his Decease the said Agnes his Daughter shall be esteemed a Bairn of the House and Family And shall succeed to her Part and Portion Natural equally with the remanent of Robert's Bairns to all Sums Plenishing Goods and Gear and others that should pertain to the said Robert the time of his Decease The said Alexander is obliged and his foresaids that whatever Benefite shall fall to the said Agnes or her to succeed to by her Fathers Decease or by vertue of the said Obligement to provide the same after he should get it to himself and her in Conjunct-fee and Liferent and to the Bairns betwixt them which FailÈieing his Heirs and Assigneys 9 January 1657. Registrate 1 March 1671. The said Alexander is obliged to provide the Conquest to himself in Liferent and their Bairns in Fee The Contract of Marriage betwixt John Hamilton Writer and Rachel Sandilands the other Daughter of the said Robert Bears That they accept the Tocher in satisfaction of all other Sums Executory Debts Goods and Gear and others whatsomever which was provided to the said Rachel or which may fall or pertain to her or may be claimed by her by Decease of the said Robert or her Mother Mause Weir All which she and her Husband Assignes to the said Robert his Heirs Executors or Assigneys to be Disponed at their pleasure By the Clause of Conquest the said John is obliged to provide the same to himself in Liferent and the Bairns in Fee And to that effect to insert the Bairns Names in the Writes The said Rachel if her Husband Decease before her is to have if there be no Children the half and if there be the third of the plenishing of the House the time of his Decease which is to be made free of Debts by his Heirs and Executors Quaeritur If the Obligement to succeed to all that should pertain to the Father should be understood only as to a Bairns Part and should not be extended to the Deads-part If what should fall to Agnes after her Fathers Decease should belong to the Bairns of the Marriage though the Marriage be disolved through the Husbands Decease before the Father Robert his Decease If Rachel the other Daughter notwithstanding her Renounciation will come in as one of the nearest of Kin at least as to Deads Part Viz. Deads third and the half of a Bairns Part. By Contract of Marriage the Husband is obliged in the first place to provide 30000 Merks to his Wife in Liferent and the Heirs of the Marriage presently And to the other
he cannot make voluntar payment in prejudice of a Creditor who has done Diligence Gibson Clerk D. 175. Kilbirny contra Cuninghame 24. July 1673. IN an Adjudication upon the late Act of Parliament The Lords modified the price to be 18. years purchase as to the certain and constant Rent and 9. years as to casual Rent of Coal Gibson Clerk D. 176. Murray contra The Tutor of Stormount 25. July 1673. BY a Contract of Wadset the Wadsetter being lyable to compt for the excrescence of the Duties more than should satisfie the Annualrent The Lords in a Process for Maills and Duties Found the Exception Relevant that the Pursuer was satisfied of the Sum upon the Wadset by his Intromission without Declarator D. 177. Ker contra Ruthven eod die THE Lords Found That the Estate of the Earl of Bramford being settled upon the Lord Forresters Son by Act of Parliament he could not have it but cum sua causa and the burden of his Debts Item They Found That the Earl having entertained his Grand-child the Pursuer was to be presumed to have done it ex pietate avita the Earl being a generous person and having an opulent Estate and his Grand-child having nothing for the time but the Debt in question whereof the Annualrent was provided and belonged to his Brother Monro Clerk D. 178. Creditors of Hugh Sinclair contra Annandale 26. July 1673. THE Lords Found That a Compryser upon Debts anterior to the Debitor's Rebellion being Infeft before Year and Day is preferable to the Donator of the Liferent Escheat Mr. Thomas Hay Clerk D. 179. Mr. John Bayn contra Caivie eod die THE Lords Found That a Tack being questioned as antedated to obviate an Inhibition was suspect being rased in the Date So that the same seemed to be vitiate and an other year superinduced And therefore was not a valide and probative Writ in prejudice of the Inhibition unless it could be adminiculate by some Adminicle before the Inhibition Mr. Thomas Hay Clerk D. 180. 2. June 1674. THE Kings Majesty having by two Letters to the Lords of Session presented Mr. David Balfour of Forret and Mr. Thomas Murray both Advocates to be Lords of the Session It was moved by one of the Lords that seing by the Law and Acts of Parliament these who are to be admitted to be Lords of Session should be tryed Therefore the Tryal should be such as is intended by the Law the very Notion of Tryal importing at least a serious if not a strict and exact way of Tryal This was moved because the way of Tryal had become of late so perfunctorious and dicis causa that it was ridiculous and in effect a Mock-Tryal Some of the Lords being appointed to examine these who were named by the King and after they had asked some trivial Questions having made Report That they found them qualified albeit it was not only known to the Examinators but to all the Lords and notour to the World that they were altogether Ignorant both of Law and Practique and did acknowledge it themselves not dareing to expose themselves to sit in the Outer house as Ordinaries they prevailing with others of the Lords to go out and officiate for them as Curats 1. It was urged that the Estates had considered the Interest of the Kingdom all Estates being concerned in that Judicatory that the Lords should be Persons of great Abilitie and Integrity seing their Lands and Fortunes and greatest Interests are the Subject of their Jurisdiction and Decisions and therefore it was provided by diverse Statutes and Acts of Parliament they should be qualified Persons and found upon Tryal to be such 2. His Majesties Letter required that the Persons now named should be examined effectually 3. By diverse Acts of Sederunt and in special one upon the Kings Letter for the time the way of Tryal is prescribed which is most exact 4. The Oath of Admission that the Lords should be faithful has and ought to have Influence upon all their Actions as Lords of the Session that they should be done faithfully and the Tryal of Lords for the Reasons foresaid being an important Act of Duty ought to be done faithfully and sincerely and cannot be done otherways without breach of Oath 5. To pretend to obey the Law and the Kings Letter which requireth an effectual Tryal in a way which is superficiary and evidently ineffectual it is a Cheat and Circumventio Legis which in others is hateful but in Judges who are Antistites Juris is abominable and inconsistent with the Honour and Integrity that should be expected from the Judicatory 6. If there were no Tryal at all the Lords would be passive if Persons not qualified should be named but being enjoyned to try effectually if they receive them without an effectual tryal they are not free of blame and are accomptable to God and his Majesty and to the Parliament To all these Reasons It was Answered That at this time the way of Tryal that had been for a long time should be continued at this time and that the Motion was upon some design The Mover did purge himself upon Oath that he had no Design but to do duty and did attest the President that before this occasion they had spoken often to that purpose and did represent that this is the fit time to put the Law and Statutes in execution The Persons named being Advocats and Persons presumed to be able to undergo the Tryal so that it cannot be thought that there is any thing of Design against their Persons That it cannot be denyed but the late way is abusive and antiquitas erroris or abusus cannot be thought and pleaded to be custom That in the Year 1629. the Lords by an Act of Sederunt had renewed and ratified all the former Statutes anent the Tryal and Admission of the Lords and ordained them to be observed That since that time the Troubles interveened and continued long so that Prescription cannot be pretended for an abuse which had occasioned so great prejudice and clamour It was Carryed That the Examination should be as it has been of late and upon the Report of Gosford and Craigie appointed to examine them they were admitted Gosford was of Opinion that there should be another way of Tryal D. 181. Bogie contra The Executors of the Lady Oxenford 4. June 1674. THE Executors of the Lady Oxenford being pursued at the instance of a Legatar did in the Compt before the Auditor give in an Article of Discharge viz. That the Expences of a Process at the Executors instance should be allowed It was Answered That if the Executor had not pursued that Process there was as much free Gear as would have satisfied the Legacie and the Executor had not prevailed and if they had prevailed the benefit would only have accresced to the Executor and not to the Legatars and therefore penes quem emolumentum c. and seing they would have had no benefite they should have no
of Parliament their Sallary being enlarged and settled upon them otherwayes And if during the time the said Lords had their Sentence Silver any of them had deceased before Sentence tho the Process had been commenced and advanced beyond Litiscontestation it cannot be said that the Executors of a Lord deceasing before the Sentence could claim any part of the Sentence Money where the Sentence is pronounced after his decease 3. By the 28. Act of his Majesties Parl. 1661. the Quots of Testaments are discharged and yet the Bishops being restored to the Right of Quots the same will be due for any Testament confirmed thereafter notwithstanding of the said Act of Parliament whereas if Quots were due from the time they became confirmable they could not be claimed tho confirmed since the Bishops were restored as said is to their Quots as being discharged by the said Act of Parliament The Lords did also Find That the Bishops Relict and nearest of Kin had Right to an Ann even before the late Act of Parliament being the 13. Act of the 3. Session of His Majesties second Parliament concerning the Ann due to the Executors of Bishops and Ministers In respect by a Letter of His Majesties Grand-father in anno 1613. and Act of the Bishops thereupon an Ann was Found to be due to the nearest of Kin of Bishops But in regard by the said Letter and Custom before the said late Act of Parliament the Ann in relation to Bishops was if the Bishop deceased before Michaelmass after the Moneth of _____ his Executors had the half of that year as belonging to the Bishops Incumbent Jure proprio and the half of the next year as Ann the half of the Rent of his Benefice for the half year preceeding Michaelmass the other half being due to him as Incumbent and fallen under his Executry Whereas by the late Act the said Ann is so ordered that the Bishop or Minister surviveing White-sunday the half of that year does belong to him and his Executors upon account of his Incumbency and the other half for the Ann And the Incumbent surviving Michaelmass he is to have the whole Year as Incumbent and the half of the next year is to be Ann Therefore the Lords Found That the late Bishop having deceased before Michaelmass and before the said late Act of Parliament the Ann should be as it was formerly In the same Process It was debated among the Lords more fully than at the Bar whether the Quots of Testaments should fall under the Ann And it was urged by some that the Quots of Testaments are but casual Obventions and that they are due as said is upon the account foresaid viz. That Testaments are confirmed by the Bishop or his Officials and ratione operae and as Sentence-Silver so that they cannot be due but to the present Incumbent who does a duty and that Compositions for entering of Vasals and Liferent Escheats and Non-entrys and such like casualities do not fall under Ann. Whereunto It was Answered That by the Kings Letter by the Act of Parliament and by the Canon Law the half of the Rent of the Benefice Stipend and Living fall under the Ann and the Quots of Testaments are a considerable part of the Bishops Rent especially in Edinburgh and undoubtedly is a part of his Living and Benefice And the Rent of Milns which is casual and depends where there is no astriction upon the arbitrary will of Parties to come or not to come to the same and is likewayes due ratione operae doth fall under Ann As also the Rent of Fishings and such like which are casual And there is a great difference betwixt Quots which is an ordinary yearly Rent and cannot fail so but there will be still Testaments confirmed and the casualities of Superiority as Liferents c. which are so uncertain as that it cannot be said they are the Bishops Living And the Argument that Quots are due ratione operae and by reason of actual confirmation which cannot be due by the Executors or Relict is of no weight seing the other constant Rent of Stipends and Benefices is due ratione operae and because the Bishop or Minister serveth which is not prestable by Executors or Relicts The Lords notwithstanding enclined to Find That the Quots do not fall under the Ann but upon the motion of some of their Number that the Interloquitor being to be a preparative should be further considered they thought fit not to proceed to the Voting Gibson Clerk Forret Reporter D. 195. Craig contra Edger 20. Novemb. 1674. THE Lords Found That a Bond bearing Annualrent being Assigned by a Woman to her former Husband by her Contract of Marriage and the Assignation not being intimate a Retrocession did settle again the Right of the said Bond in the Person of the Wife Quia unumquodque dissolvitur eo modo quo contrahitur And the said Bond being thereafter assigned in favours of the second Husband he and his Executors had Right to the same and that it was not in bonis of the first Husband though the Retrocession was not intimate until after his decease Lord Glendoick Reporter Mr. John Hay Clerk D. 196. Thoirs contra Tolquhon eod die MR. David Thoirs in an Improbation at his Instance against Tolquhon of a Bond did crave Certification because the Principal was not produced but an Extract out of the Commissars Books of Aberdeen The Lords upon a Report having debated amongst themselves what was fit to be done in the said Case seing it appeared that the said Pursuite was intented not of design to question the Bond upon evident and probable Grounds of Falsehood but only to have it produced and it appeared by many Presumptions that the Bond was a true Deed and never questioned by the granter ex capite falsi tho he had suspended upon other Reasons And there had been much diligence by Decreets Horning and Comprysing upon the same and yet the Bond being of an ancient Date beyond 40 years there was no person living that could prove the Tenor thereof and declare that they knew the same to be a true Deed And on the other part the Lords could not refuse to grant Certification seing an Extract does not satisfy in an Improbation where the Principal was not produced It was moved by some of the Lords That if the Pursuite was not intented within the years of Prescription that it should not be sustained seing albeit causa falsi doth not prescrive where the Paper or Subject craved to be improven is produced and the Pursuer offers to improve and make it appear that the same is false yet when the Improbation is only to try the condition of the Defenders Right and in order to a Certification if the Principal cannot be exhibit it is not properly causa falsi And the effect of the Certification is only that the Write for not production should be holden as false praesumptive and fictione Juris And upon the matter it
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
the instance of the second Donator that the Assigney is preferable Sir David Falconer for Veatch alteri Dalrymple Charâ—ris c. Gibson Clerk This Decision appears to be hard seing Declaratoria non tribuit Jus but Declarat Jus quod est And the Horning being declared upon the first Gift there needed not a Declarator upon the second Vide infra 12. February and 10. Novem. 1675. inter eosdem D. 250. Douglass contra Jackson and Grahame 11. February 1675. THE Lords Found that a poinding is not lawful unless it be begun before the setting of the Sun and what is to be done at that time be all done and compleat before the Day light be gone D. 251. Lady Torwoodhead contra The Tennents eod die THE Lady Torwoodhead having gotten Aliment modified to her by the Lords of Council of 600 Merks yearly and for surety of the same having gotten the Gift of her Husbands Liferent Escheat did pursue the Tennents for Mails and Duties It was Alledged for Florence Garner That he had Right to the Lands Lybelled and Mails and Duties of the same by Comprysings and Infeftments thereupon expired It was Answered That the Mails and Duties of the Lands exceed the Annualrents of the Sums contained in the Comprysing and by the Act of Parliament 1661. for ordering the payment of Debts betwixt Creditor and Debitor where the Lands Comprysed exceed the Annualrents of the Sums contained in the Comprysing The Comprysers are restricted to the possession of such of the Lands dureing the Legal as the Lords of Session should think just And that the expireing of the said Florence his Comprysings was interrupted by an Order used by Edward Ruthven Son to the Lord Forrester It was Answered for Gairner That the Lord Forrester had no Right to the Reversion of Torwoodhead's Lands so that no Order used by him as to these Lands could be valid to interrupt the said Comprysing And the said Order neither was nor could be declared The Lords In respect the Lord Forrester being principal and his Brother Torwoodhead Cautioner both their Lands were Comprysed for the same Debt and that the Principal may satisfy the Debt and extinguish the Comprysing as to both his own and the Cautioners Lands They Found that the said Order did interrupt the Comprysing as to both This appears to be hard 1. Because the said Act of Parliament indulges the favour foresaid to the Debitors themselves upon the Conditions thereinmentioned viz. That they should ratify the Comprysers possession and deliver the Evidents and the same cannot be extended to Donators 2. A Comprysing cannot be interrupted but either by Payment and actual satisfaction or by using and declareing an Order of Redemption Until which be done the Comprysing cannot be thought to be unexpired Craigie Reporter D. 252. Kinnier contra _____ 12. February 1675. THE Lords upon a Bill given in by _____ Kinnier who had obtained a Bonorum and a Testificat of diverse persons of Credit that he had become insolvent upon occasion of loss and ill Debtors and was otherwayes vertuous They dispenced with that part of the Decreet anent the wearing of the Habit. D. 253. Presbytrie of Duns eod die THE Presbytrie of Duns having by Bill desired That Letters of Horning may be direct against certain persons who had been cited as Witnesses and did not appear before them The Lords did demurr In respect Letters of Horning ought not to be direct but either by consent of Parties or by Warrand of Acts of Parliament As appears by Acts of Parliament ordaining Horning to be direct upon Sheriffs and Commissars Decreets and Decreets within Burgh and Admirals Decreets D. 254. Cruickshanks contra Watt. eod die THE Lords Found That a Disposition being made after Inhibition but before the Registration of the same may be reduced ex capite Inhibitionis seing the Execution of the Inhibition doth put the Leidges in mala fide And after the same is compleat and thereby the Debitor and the Leidges are inhibite to give and take Rights the Inhibition ipso momento thereafter is valide and perfect but resolvitur sub conditione if it be not Registrate in due time Mr. Thomas Hay Clerk D. 255. Veatch contra The Creditors of James Ker and Peter Pallat. eod die IN the case abovementioned Veatch contra The Creditors of James Ker and Peter Pallat It was farther Alledged for the said William Veatch that he ought to be preferred because by the Act of Parliament 1621. Assignations or other Rights granted by Bankrupts in favours of any of their Creditors who had not done Diligence and in prejudice of a Creditor who had done Diligence by Horning or otherwayes are void And the Creditor who is partially preferred and gratified if he recover payment he is Lyable to Refound And by the Act of Parliament in Anno. 1592. anent the Escheats of Rebels Cap. 145. Assignations made stante Rebellione in prejudice of the Creditor at whose instance the Cedent is at the Horn are Null and that the said Assignation made by Sanderson in favours of Ker and Broun was made by him after he was at the Horn at the instance of David Rodger Veatches Cedent And the said Assignation being Null for the Reason foresaid all that has followed thereupon is void It was Answered That the said Act of Parliament is only to be understood in the Case when any voluntar Payment or Right is made in defraud of the lawful and more timely Diligence of another Creditor having served Inhibition or used a Horning Arrestment Comprising or other Lawful Mean to affect the Dyvors Land or Estate and that Horning is not such a Diligence as does affect being only personal Execution against the Debitor and that the said Debt of Stuarts was many years contracted by the Rebel after the said Horning and that the said Stewarts residing in Ireland and their Bond being conceived after the stile of English Bonds did not fall under Sanderson the Creditors Escheat Whereunto It was Answered That by the said Act of Parliament Bankrupts after they are at the Horn cannot make any voluntar Right or Payment to gratify or prefer other Creditors so that there is no necessity to debate whether Horning doth affect or not And yet the truth is Horning is such a Diligence as doth affect seing thereby all the Escheatable Goods are affected and do belong to the King and to the Creditor at whose instance the Horning is who is preferable to the King and has an interest in the said Goods and that what ever belongs to a Rebel whether the time of the Rebellion or at any time how long soever thereafter during the Rebellion the same accrues to the King and consequently to the Creditor in the Horning and that nomina debitorum and Debts non habent situm but are personal Interests and sequuntur personam Creditoris and if they be moveable do fall under his Escheat which is a Legal Assignation as said is The Lords enclined to prefer
when he was in liege poustie and had power as Dominus to dispose of his Goods or to grant Bonds which might affect the same The Relict could have no Legitime but of the free Gear the said Bond and other Debts being satisfied Some of the Lords were of the Opinion that the Bond should affect the haill Goods But others thought that it ought to affect only the Defuncts part seing there is a Commumon betwixt Husband and Wife and albeit the Husband is said to be Dominus and has full Administration of the same so that he may dispose thereof and grant Bonds for Onerous Causes yet he cannot in prejudice of the Communion and the Wifes Interest foresaid dissipate and give away the same by fraudulent Donations of purpose to prejudge either the Relict or the Children of their Legitime But this point was thought fit to be heard and debated in praesentia D. 303. Forbes of Colloden contra Ross and others 26. November 1675. A Decreet at the instance of Forbes of Colloden against Robert Ross and others before the Commissar of Ross being questioned upon that Ground that the said Commissar had committed Iniquity in Repelling Relevant Declinatures whereof one was upon the account of his Relation to the Pursuer being the Commissars Uncle And an other was upon account of the nature of the Action Alledged not to be consistorial and the subject of the Process tho it had being proper otherwayes yet being far above the Sum of 200 Merks was such as by the Regulation the Commissar could not be Judge in And likewayes in resâ—ect that the Commissar did assume to himself a Power to modify a great Sum extending to above 6000. lib. for the Charges the Pursuer had been at in proâ—ecuting a Plea by warrand of the Defenders and wherein he and they were concerned And the said Modification was upon no other Probation but the Pursuers Oath and that the modifying of so large a Sum did belong ex nobili officio to the Lords of Session privative Some of the Lords were of the Opinion That the Commissar notwithstanding of the Relation foresaid could not be declined seing there is no statute that Judges may be declined upon that account And by the Act of Parliament 212. K. Ja. 6. His 14. Parl. Anent the Declining of the Lords of Session There is no other Relation that can be a Ground of Declinator but where the Judge is related to either of the Parties as Father Brother or Son And yet others were of the Opinion that a Nevoy being of so near Relation may and ought to be declined In respect by the Common Law persons of that Relation are most suspect and cannot be Judges And by the said Law a Judge may be declined upon any Ground that may decline a Witness and there is more reason to decline Judges than Witnesses seing there may be penury of Witnesses and they may be so necessary tho related to the Parties that others cannot be Found And the said Act of Parliament as all Acts of Parliament especially such as are correctory Juris communis ought to be taken strictly and cannot militate but in the case therinintended and exprest And the said Act is upon special considerations in Relation to the Lords of Session and particularly of the Eminent Integrity that is presumed and ought to be in the Supreme Judicatory The Lords without entering upon the Debate of the said other points turned the Dcereet in a Lybel Forret Reporter Clerk D. 304. Anderson of Dowhill contra Lowes 27. November 1675. William Gibson did Dispone to William Norvel his Son in Law and Elizabeth Gibson the Disponers Daughter certain Aikers near Glasgow which thereafter the said William Norvel did Dispone to Thomas Norvel his Brother And by a Right from the said Thomas thereafter did pertain to Anderson of Dowhill But John Lowes having thereafter Marryed the said William Norvels Relict Elisabeth Gibson and having upon an Assignation to a Debt of the said William Gibson adjudged the said Williams Right from his Appearand Heir And having pursued an Improbation and Reduction of Dowhills Right and in special of the foresaid Disposition made by the said William Gibson to the said William Norvel Dowhill was forced to pursue forproving the Tenor of the said Disposition which was out of the way and which he pretended to have been in the Hands of the said Elizabeth Gibson and to have been abstracted by the said John Lowes her second Husband intending to patch up the Right foresaid And these Adminicles bein Lybelled viz. That the said Elizabeth Gibson being pursued at the instance of the said Thomas Norvel before the Court of Glasgow for Exhibition of that Disposition the said Elizabeth for obtaining a Suspension of the Decreet of Exhibition recovered against her did consign in the hands of Henry Hope the said Disposition and other Writes and that thereafter the said Thomas Norvel upon the said Disposition did obtain a Decreet cognitionis causa before the Baillies of Glasgow In which the said Disposition is mentioned as produced And thereafter the said Thomas did also obtain an Adjudication of the said Aikers wherein also the same was produced And that there is an attested double of the said Disposition which is written by James Galbraith Agent and attested by two famous Notars The Lords admitted the Summonds to Probation And diverse Witnesses being Examined and in special the said James Galbraith and these who were Servants to the Clerk of the Court of Glasgow the time of the obtaining of the said Decreets Cognitionis causa Adjudication and others After much debate before advising in praesentia and amongst the Lords themselves Some of the Lords were of Opinion that pursuites of the nature foresaid being of so great importance and tending to make up a Right to Lands which may be of great value The Adminicles ought to be in Write and most pregnant and that in this case tho there might be ground of presumption yet it cannot be said that there are clear Adminicles in Write In sua far as the attested double cannot be considered as an Authentick Write and it wants a date And as to the Decreet of Adjudication tho it mention the production of the Letters of Disposition yet it appears by the Depositions of the Witnesses and it was granted at the Barr that the principal Disposition was not produced but only an attested Double and needed not to be produced the Decreet cognitionis causa being sufficient to instruct the Pursuers Title in the Adjudication And as to the Decreet Cognitionis causa that it is not a sufficient Adminicle seing both it and the Decreet of Adjudication bearing the Production in the same Terms there might have been the same mistake in the Decreet Cognitionis causa that is confest to have been in the Adjudication viz. That the Attested double being only produced yet the Production is made to bear the Disposition and there being so short a time
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 Wrâ—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 sâ—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 McKenÈe 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
he was in the said process It were inconsistent that his Tennent should have the benefite of a Possessory Judgement and not himself In praesentia D. 394. Rutherford contra Weddel 5. December 1676. THE Lords In a Suspension at the instance of a Bankrupt who was Prisoner did allow him to come out without the habite Because It was represented that the Debt was for the most part not contracted by himself but by his Father Albeit some of the Lords were of the Opinion that the Act of Sederunt bearing no distinction and being made upon good consideration and conform to the practice of all other Nations That Bankrupts should be known by a habite to be persons that deserved no Trust and that others may be affrighted from contracting or under-going Debts which they are not able to pay And that the pretence foresaid was frivolous it not being presumable that a person would be Heir and become Lyable to Debts that he had not Contracted unless there were Effects and sufficiency of Estate to pay the same And if such pretences should be allowed the Law would be altogether elusory Gosford Reporter Mr. Thomas Hay Clerk D. 395. The Town of Glasgow contra Greenock 7. December 1676. THE Town of Glasgow having intented a Declarator against the Laird of Greenock containing these Conclusions viz. That it should not be lawful to Greenock or his Burgh of Barony to import any Goods from Abroad which by the late Regulation and Act of Parliament concerning the priviledges of Burghs Royal being the 5. Act of the 3d. Session of his Majesties Second Parliament belongeth to the Royal Burghs and are to be imported by them privative and in special Wine Brandy and Salt 2. That if they should be found to contraveen the said Act of Parliament that the unfree Goods deprehended should not only be Escheat but their whole Goods conform to former Laws and Acts of Parliament against unfree Men. It was Alledged for the Defenders That at least they ought to be in the same case as Strangers and Unfree-men of Forreign Nations who may import without limitation making Offer to the Royal Burghs and if they do not buy the same from them being obliged to Sell them in whole sale and at the price to be limited and appointed by the Burgh where Offer is made and that the Burghs of Barony had been in use of importing as Strangers the same being qualified as said is And the said Custom was not contrary to Law but conform to diverse Acts of Parliament and in special the 100 Act of K. Ja. 5th his _____ Parliament bearing that if any Free-man or other Scots-man dwelling within this Realm should bring home Wines Salt or Timber That the Magistrates of Burghs where the same is entered should set a price upon the same which imports that Unfree-men may import the same The Lords Found That by the said late Act of Parliament The matter of Trade is so regulated That as the Burghs of Barony their priviledges to import Goods and Commodities that they could not import before are settled upon them and on the other part Royal Burghs are secured from the encroachment of Burghs of Barony So that they cannot import but the particulars allowed to them by the said Act Therefore that upon no pretence the Burghs of Barony and Unfree-Men can import any other Goods and that they are not to have the Liberty that Strangers have Seing Strangers are allowed the Liberty of Trade and Commerce being qualified as said is And if the same were denyed there would be no Trade betwixt our Merchants and them Whereas the Liberty of Trade and to import Forreign Commodities is only lodged and settled upon Royal Burrows upon good Considerations and intuitu of the same they are Lyable to a 6th part of Taxations and other publick Burdens 2. It was Found That albeit in the late Act of Parliament there be not mention of Salt as one of the Commodities allowed to the Royal Burrows and contained in the specification that the same does only belong to the Royal Burrows Seing they are founded as to all Commodities not expresly allowed by the said Act to Burghs of Barony and Regality in Jure And the Burghs of Barony are excluded by the said Act as to all others except these allowed to them expresly by the said Act and come under that general viz. Such as are necessary for Tillage or Building or for the use of their Manufacture And whereas it was pretended by the Defenders that Salt is necessary for the curing of their Fishes The Lords Found That Manufacture intended by the Acts of Parliament is only to be understood of Works erected by Companies or others for making of Cloath or such like about which many poor People are Employed and Entertained And tho there be skill in cureing Herring they are not a Manufacture but a Native Commodity without any alteration of the form and only qualified by the cureing of the same And that upon that pretence the Defenders ought not to be allowed to import Salt But was Recommended to some of the Lords being also upon the Council to move that a course might be taken for Regulateing the price of Salt that it be not Arbitrary to the Royal Burrowes to sell the same at such Rates as the Burghs of Barony cannot without prejudice buy the same So that they may be forced to desist from making or exporting Herring The Lords Found That the said Act having defined the pain to be the Escheat of the Goods deprehended And not the Escheat of the Contraveeners whole Goods And that as to Goods not deprehended the pain ought not to be greater And that these who import unlawful Goods contrare to the Act tho they be not deprehended may be pursued for the value of the same and no farder Some of the Lords were of another Opinion as to this Point and thought that seing the late Act of Parliament doth mention only the case of unlawful Goods deprehended and doth regulate the former Practice as to the attaching and affecting of the same and it is inconsistent that both the Goods deprehended should be escheat and likeways the Contraveeners other Goods should be escheat That therefore the former Laws are still in vigour Actor Lockheart c. alteri Cuningham In praesentia D. 396. Marshal contra Holmes 12 December 1676. AN Advocation being produced after the Judge had decerned but before he had cleared and dictate the minute of the Decreet which he did upon the Bench immediatly after production of the Advocation The Lords Found the Decreet Null as being spreto mandato But in respect of the Circumstances and that the Judge had decerned before as said is they turned it in a Lybel Thesaurer-deput Reporter Gibson Clerk D. 397. Durham contra Durham eod die SIR Alexander Durham having upon Death-bed given Bond to the Lord Clermount for 20000. merks and at the same time having ordained his Nevoy Mr. Francis Durham his
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
Immobilia Ib. Immobilia per applicationem aliis modis 95. Imposition upon the Pint of Ale Ib. Impositions of Burdens upon Shires 96. Impositions voluntary upon Shires Ib. Improbations Ib. Impugning the Authority of Parliament Ib. Incendiarium 97. Incorporations Ib. Infeftment of Annualrent Ib. Base Infeftment 98. Infeftment in a Right both of Property and Annualrent Ib. Infeftment for the use and beho of of another 99. Conditional Infeftments Ib. Publick Infeftments Ib. Inhibition 100. Inhibition upon Teinds 101. Insinuatio Ib. Instance 102. Instantia Ib. Instrumentum Guarentigiatum Ib. Interdiction Ib. Inter decem Dies Ib. Intrometter Ib. Invecta illata 103. Duobus Investitis per modum Confirmationis sed posterius acquirentis Jure prius confirmato uter sit potior Ib. Investitura 104. Jura complexa Ib. Juramentum Ib. Jurisdictio Ib. Jurisdictio Camerae Imperialis Ib. Jus accrescendi Ib. Jus Mariti Ib. Jus Mariti Relictae 106. Jus Relictae Ib. Jus Superveniens Ib. Justice-General 107. K. Nearest of Kin. Ib. KING 108. King and Prince Ib. L. Laudimium Ib. Lawburrows for Burghs Ib. In Lecto Ib. Legacies 110. Conditional Legacies Ib. Legal Reversion 111 Legatars and Intrometters Ib. De Legatis Ib. Legatum rei alienae Ib. Legatum a Legatario acquisitum ante mortem Defuncti 112 Res eadem duobus Legata Ib. Legitima Liberorum Ib. Legitimation per subsequens Matrimonium 115. Marriage and Legitimation 116. Leuteratio Ib. Libellarius Contractus Ib. Liberi Ib. Liferenter Ib. Executors of a Liferenter 117. Liferents Ib. Quando Dies cedit as to Liferenters 118. Vasallus Ligius Ib. Limitation of Fees Ib. Litiscontestation 119. Quo casu Possessor in mala fide constituitur per Litiscontestationem quando non Ib. Locus Poenitentiae Ib. M. Mare 120. Marriage Ib. Marriage Clandestine 123. Materna Maternis Ib. Matrimonium 124. Mensis 125. Mensura Taxative Demonstrative Ib. Militia Ib. Miln Ib. Ministers Stipends in a Reddendo Ib. Minor Ib. Minor non tenetur Placitare 126. Reduction upon minority Ib. Decreet against Minors Ib. Mobilia Ib. Mobilium vilior possessio Ib. Modus habilis 127. Molendinum Ib. Molendina aquatica Ib. Molendina Bannaria Ib. Molendina navalia Immobilibus accensentur Ib. Molendina 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ib. Districtus Molendini 128. Quomodo qui sunt in districtu Molendini cogi queant Ib. An qui sunt in Districtu alibi molere possint Ib. An Extrui possit Molendinum quod noceat vicino Ib. An Molendinum possit Extrui sine licentia Principis Ib. Restagnatio Molendini Ib. Vsus Molendinorum Juri Civili ignotus 129. Vbi convenit ut pro Familia molatur quid Juris si aucta sit Ib. If a Mother and her friends may succeed Ib. Mutuum Ib. N. Non-entry 130. Novo damus Ib. Nullitas ex verbis non licebit 131. Clausula ex unnc prout ex tunc Ib. Nundinae Ib. O. Oath of Coronation 132. Qualified Oaths Ib. Correspective Obligements 133. Mutual Obligements in Contracts Ib. If Offices do Escheat by Horning Ib. Omissa male appretiata Ib. Operae 134. Order of Discussing Ib. P. Pactis Privatorum non Derogatur Juri Communi Ib. Parliament Ib. Passing from a Right 135. Patents of Honour Ib. Pecunia Pupillaris Ib. Pensions granted by the King 136. Personalis Actus Ib. Pignora Ib. Plenishing If a Wife be provided to a part of it Ib. Possessor 137. Poinding of the ground Ib. Prerogative Ib. Prescription 139. Prescription against the King 140. Presentation upon Forefaulture 141. Process against Strangers 142. Procuratories of Resignation Ib. Promise to Dispone not in writ Ib. Protections Ib. Provisions in favours of Bairns 143. Provision in Bonds Ib. Provisions in Charters Ib. Provisions in Contracts 144. Provisions in favours of Daughters Ib. Publica Ib. Pupils 145. Q. Quartering Ib. Quorum Ib. R. Ratihabitio Ib. Jus Ratium 146. Jura Realia in Re in Rem Ib. Rebellion Ib. Whether the Rebels Goods ought to be Lyable to Creditors Ib. Recognition 147. Redemption Heretable or Moveable 148. Order of Redemption Ib. Reduction Ib. Reduction Ex capite Fraudis 149. Infeftment after Reduction Ib. Reduction Ex capite Metus Ib. Reduction upon Minority Ib. Reduction Ex capite Lecti 150. Re-entry after Redemption Ib. Regalia Ib. Regality 151. Writs registrate that cannot be found in the Register Ib. Registratio 152. Regum Contractus 154. Relief of Cautioners 155. Relocation Ib. Reluitio seu Retractus Ib. Remissions Ib. Renounciation Ib. Renounciation by Daughters at their Marriage 156. Renunciatio Juri Publico Ib. Res Fiscales res privatae Regis Ib. Re-seafin upon Reduction Ib. Reservation in favours of Relicts 157. Resignation Ib. De Resignationibus 158. An Resignatio in Manibus Domini Superioris alienantem penitus devestiat Ib. An ex Persona Resignatarii ejus vel obitu vel delicto Custodia Haeredis alia emolumenta Domino directo obveniant Ib. An in Feudis quae de Domino Rege tenentur idem Jus sit adeo ut per Resignationem Vasallus devestiatur 159. Si Alienatione facta ex ea Resignatione alia postea fiat ex ea etiam Resignatio in favorem alterius isque primus Investitus fuerit post eum prius acquirens Quaeritur uter Potior 161. An is qui in Dominium directum successit Titulo singulari teneatur Acquirentem in vasallum recipere ex Resignatione in manibus Authoris 164. An Superior nedum Resignatarium ejusque haeredes sed Cessionarios investire teneatur 165. De Resignationibus a Domino directo acceptatis An devestiant Resignantes 166. Retention 171. Retours Ib. Retoured Duty Ib. Return of Lands to the Superior upon a Provision 172. Return of Lands to the King failÈieing of Heirs Male Ib. Reversion Ib. Reversions of Comprysings against appearand Heirs 173. Reversion Personal 174. Legal Reversion competent to Idiots c. 175. Rights made by Dyvours Ib. Fraudulent Rights in prejudice of Creditors 176. Right a non habente potestatem Ib. Rights ad Tractum futuri Temporis Ib. Right in Trust 177. Ripae Ripatica Ib. Quando Dies cedit in Grass Roums when there is Question betwixt Fiars and Liferenters Ib. S. Act Salvo 179. Seasin Ib. Registration of Seasins Ib. Special Services and Precepts of Clare constat Ib. Servitude and Extinguishment thereof Ib. Lords of Session 180. Sheriffs Ib. Ships Ib. Solarium 181. Sponsalia Ib. Statuta Ib. Steelbow and Heirship Ib. Strangers Goods or Debts belonging to Strangers Ib. Subjects living Abroad Ib. Substitutes 183. Substitutio Ib. Substitution in Bonds Ib. Substitution in Legacies 185. Successio in Maternis Ib. Successio in Stirpes 186. De Successione in Feudo amisso quo Jure censenda utrum Haereditatis an Conquestus Ib. Successor Titulo lucrativo 191. Singular Successors 193. Sums heretable and movable Ib. Sums moveable 194. Eldest Superior Ib. Superior mediate Ib. T. Tack Ib. Back-Tack and Prorogations 196. Tack
the Jurisdiction of Commissaries as it is now established is of this kind (F) There is an express Canon in decret dist 88. Episcopus tuitionem Testamentorum non suscipiat and the gloss explains tuitionem And it is clear from the _____ of the _____ of the decretal de Testamentis cap. 13. cap. 17 executio Testamentorum devolvitur ad Episcopum tantum cum aliquid Ecclesiae vel ad pios usus relinquitur tunc enim secundum piissimas Leges voluntates dilatas Episcopali studio decens est adimpleri Where the word Secundum piissimas Leges is considerable and argues that they had that priviledge only by Imperial Laws which is received in the Gloss and is cleared from the Cod de Episcop audient de Episcop Cleritis and from the Authent That Matrimonial causes were competent only to be judged in Civil Judicatories It appears 1mo Because it is clear from the Civil and Canon Law That consistorial Causes non pertinebant ad Episcopalem Audientiam in the times of the greatest Grandeur and in the most Superstitious Times And that Church-men were prohibite to medle with them as Absurd and most incompetent to be Judged by them as is evinced by Citations supra at the Letter B. But these Causes were assumed by these Judicatories in the Latter Times upon pretext that they were pious and favourable and by the Connivance of Princes (G) Theologi Germanicarum Ecclesiarum in articulis Smalcaldicis hanc jurisdictionem ex postliminio tantum jure exercuerunt quidem non adeo veteri ut ex Cod. Novel jure apparet causas se Matrimoniales à Magistratu politico diiudicandas vide Altare damasc p. 462. It is acknowledged by these who are most for enlarging Episcopal Government That jure municipali tantum confirmato Ecclesiastico ad Episcopalem Jurisdictionem pertinet Testamenta probare insinuari facere Beza de Repudiis Divortiis concludes Jure certe suo non tantum Prophetae sed Christiani Religiosi principes leges de conjugiis posecrunt Vide Altare Damas cap. 6. per totum 2do The Jurisdiction of Commissaries as it is now established was erected by Q. Mary in time of greatest purity and Reformation and a Commission granted by her to the Commissaries of Edinburgh An. 1563. And is warranted by diverse Acts of Par. Viz. Ja. 6. P. 1. C. 28. 1567. The which Year the Lords of Session made certain Instructions for the Commissaries of Edinburgh and other inferiour Commissaries By another Act of his 7 Par. 1581. which is the 26 in the Catalogue of the Unprinted Acts and containeth a Commission for confirmation of Testaments and placeing of Commissaries By an Act of his 12. Parl. 1592 the 25. of his Unprinted Acts Entituled a Ratification of the Commisariot of Edinburgh By the Act. 179. of his 13. Par. 1593. Ordaining Letters of Horning to be direct upon Decreets of Provosts and Baillies of Burrows as is granted upon Commissaries Precepts 3tio It is most evident from the 6 Act of his 20 Par. 1609. That the Jurisdiction of Commissaries is a Temporal Jurisdiction acknowledged by the Act to flow from His Majesty as well as any other ordinar Jurisdiction which His Majesty might have granted to any Subject as well as Bishops And which is granted by the said Act to the Lords of Session as His Majesties great Consistory for Reduction of Commissaries Decreets And which before he granted to the Earl of Argyle whose Heretable Right of the Commissariot of Argyle is reserved by the said Act. There is a great difference betwixt the Official Courts of England and the Commissariots as they are Established in this Country Because Commissariots being considered either Objectivé In regard of the Object and Causes Consistorial Or formaliter ratione modi quo versantur circa Objectum in regard of the way of procedure in these Courts Commissariots are Civil and Temporal Judicatories in both respects in respect of Confirmation of Testaments and Testamentary Causes and Matrimonial de impotentia Maleficio de Natalibus Bastards and others of that nature are incompetent to be Judged in Sessions Presbytries and Assemblies which are the true Ecclesiastical Courts and therefore is acknowledged to be meerly Civil because Summonds are direct by the Commissaries under the Signet of Office bearing His Majesties Name and Armes the Certification is Civil Witnesses are Summoned under Civil and pecunial pains and Letters are directed for compelling them to compear under the pain of Horning The Execution of Sentences is Civil by poinding or comprising for Liquidate Sums Or by a Charge to fulfil what is in facto upon the Commissars Precept Or by a Charge of Horning upon the Letters And by intenting Action of deforcement before the Commissaries or the Lords of Session But the Officials Jurisdiction was Episcopale Ecclesiastical in both the former Respects and was continued as it had been in the Popish Church The Bishops usurping the Jurisdiction that belonged to Sessions Presbytries and Assemblies and delegating to their Officials their Jurisdiction both Objective in Causes competent to be judged in Church Judicatories And Formaliter in the way of procedure competent only to the Church By the Canon of the English Church they were Judges in causa non modo instantiarum sed Correctionis disciplinae they had a Superintendance over Ministers to advert that they should do their Duty in their Charges Ministers and Church-men were accusable before them and being contumacious and not appearing might be Suspended and Excommunicate They were Judges whether Crimen be notorium publicum or not And upon pretext that it was not publick and Scandalous poterant mutare poenitentiam in mulctam pecuniariam They usurped Sacrilegiously the power of the Church and Ecclesiastick Censures and by the fulminating at random Excommunications for small matters as small Debts Viccarrage Teinds the Official and his Officers Fees and for Non-compearance in their Courts And by their easy Absolution upon small satisfaction and for Money made Excommunication contemptible (H) Vide Altare Damasc Cap. de officialibus Calv. Instit Lib. 4. Cap. 11. Sect. 6. For these and other Abuses intrinsical to the Judicatory it self These Courts have been long ago cryed down on these grounds by diverse Learned and well affected Men and lately supprest But the instance of their ruine cannot with reason be adduced to subvert Consistories they being altogether different and absolutely Civil in their Institution object and way of Process and no more Ecclesiastical than the Church Regalities which had an Extrinsical dependance on Bishops in the way of holding It is already cleared That if any Abuses be in these Courts they are not essential resulting upon the nature and Constitution of the Judicatory but accidental which may be Reformed without the subversion of so old and so useful a Judicatory 2do If Commissaries either be not qualified or corrupt It is wished they may be tryed and
prejudged to question or dissolve the Marriage as null or dirimendum upon that or any other Ground If a Marriage be unlawful and either of the Parties be in bona fide which doth legitimate the Children Quaeritur If these Children will succeed with other Children of lawful Marriages at least to their Parents If they will succeed to their other Kinsmen or if the Legitimation will only import that they are not Spurij and that they have Testamenti factionem If a marriage after Inhibition may be reduced upon that ground What are the Legitima Remedia to compell parties to consummate marriage upon Contracts Whether they may not only be decerned by the Commissars but by the Church under the pain of Ecclesiastick censure Where some Lands hold of the King Taxt-ward and others hold of him Simple ward Quaeritur will he get both the simple Marriage and the taxt Sir Iohn Cuninghame saith it was decided in the case of Innernytie for both Marriage being dissolved within year and Day whether the Gifts and Jocalia given hinc inde may be repeated Item whether the gifts given by friends will fall under communion So that the Maxim that Marriage being dissolved within year and day is in the same condition as to all intents as if it had not been Is only to be understood of Dos Donatio propter nuptias If an old Woman super annos and past the age of Marriage being about Threescore years shall succeed in the Right of ward-Lands whether Marriage will be due Iohn Bonars Heir Quid Juris if a widow either man or woman inter annos nubiles shall succeed to Ward-lands Barclay of Pearstoun If a Person have only two acres or a mean interest in Ward-lands but a very great interest otherwise Whether will his Marriage be considered with respect to his whole Estate Seing the Marriage of appeirand Heirs belongs to the eldest Superiour Quaeritur who shall be thought the eldest Superiour whether the eldest as to the Lands or as to the Vassal and if it be to be considered which of the Lands was first given in Tennandry Quid Juris when a Marriage is fallen but not declared nor gifted A Marriage being contracted betwixt a woman Pubes and one that is impubes Quaeritur If it be a Marriage at least as to her so that she cannot marry with another in the interim that he is not pubes Ratio Dubitandi That a Contract being mutual cannot Claudicate A Father by his daughters Contract of Marriage having disponed to her and the second Son of the Marriage and the other Heirs therein mentioned his Estate under Reversion and certain other Conditions and in special if he should ordain a certain Sum should be payed by these who should succeed to the Estate to his Daughter and her forsaids and the said contract bearing also a Tocher of five Thousand pounds to be payed presently to the Husband Quaeritur If the Marriage be dissolved within year and day without Children whether the Contract will be ineffectual as to all intents as being causa data non secuta cum effectu Or whether it be as to the Right of the person of the Daughter either as to the Estate or as to the said Sum ipso facto void at least reduceable And whether she may repeat the Tocher from the Husbands Heirs Lady Yesters contract of Marriage being dissolved within year and day A person being Heir to his Father in a great Estate holden blensh And having a small piece of Land holding ward which he may succeed to as Heir to his Father Quaeritur If notwithstanding he is Heir general and Heir in special in the Lands holden blensh he needs not Enter to the saids ward Lands in order to be free of a Marriage which would be considered with respect to the whole Estate Ratio Dubitandi That being Heir as said is otherwise he cannot refuse to be Heir of the said Lands Answer It is thought that if he was charged to enter Heir in special at the instance of a creditor in special he could not renounce But the superior cannot urge him to Enter but will have only the benefite of a Nonentry Seing the said other Lands and any interest he had as general Heir are distincta patrimonia from ward Lands and he may owne the one without the other If the superior may affect and evict the said ward Lands by adjudication for the Marriage of the appearand Heir considered with respect to his other Estate in prejudice not only of the appearand Heir but of any who should thereafter be appearand Heirs Ratio Dubitandi That the Marriage being but a Casuality may exceed more than the double of the value of the Lands which is absurd Cogitandum If the appearand Heir will notwithstanding be lyable to the Marriage albeit he doth not enter nor renounce to be Heir as to these Lands Ratio Dubitandi That Refutatio of vassals is not admitted unless they satisfy the casualities already fallen Answer It is thought he may renounce and be free of the casualities personally without prejudice to the superior to affect the Ground and the case is different from that of vassals infeft Seing they having accepted the Right they cannot offer to renounce unless they pay what was formerly due to the superior being fructus Dominij whereunto not only the Ground but they are lyable personally by reason of their Right and possession and it cannot be said that the appearand Heir has either Mortounhall There being diverse Adjudications of Land holding ward within year and day but Infeftment only upon one and that adjudication whereupon Infeftment is being before the debitors decease and therefore stopping the Ward and the rest after but within year and day of the first Infeftment Quaeritur If the first be satisfied by intromission may the superior claim the Ward of the appearand Heir of the Debitor being Minor in respect the act of Parliament Debitor and Creditor doth relate only to the interest and and competition of creditors and doth not prejudge superiors of their Right and casualities and the adjudger Infeft is only vassal and the other adjudgers are not vassals and by them the superior can have no casuality either of Liferent Ward or Marriage Cogitandum L. Bancreiff When diverse Lands are holden of the King some in simple Ward and others Taxt as to the Ward and Marriage Quaeritur when the Marriage falls whether the King will have both the simple Marriage and the taxt Marriage Answer That since at one time there can be but one Marriage there can be but one Casuality for the same and as the King would have but one Marriage albeit there be diverse Lands holden ward of him simple-Ward So in the case foresaid where there are some taxt he cannot have two Marriages and the taxt being only aestimatio where there can be no Marriage there can be no Taxt due The same question may be of Lands holden simple and Taxt-Ward
being a proper Wadset without a Back-tack the Defender was not Lyable to Compt and tho he were he was not Lyable to Compt but since the date of the Right and for his own Intromission It was Replyed that it was a Right granted for security and that by the Contract of Wadset and the Eik to the Reversion thereafter the Right was redeemable upon payment of the principal and Annualrents that should be unsatisfied whereas in proper Wadsets there is an Antichresis and the Rents of the Land belongs to the Wadsetter in lieu of the Annualrents whereto the Debitor is not Lyable The Lords Found That though the Right was not clear and express that the Wadsetter should have Right for surety and until he be satisfied by Intromission or otherwayes yet the Reversion being in the Terms foresaid it was Actum and intended that the said Wadset should not be a proper Wadset but only for surety as said is D. 58. E. Cassils contra Whitefoord Eod. die THe Lands of Damertoun being a part of the Barony of Cassils and formerly holden Ward by the Lairds of Blairquhan Kennedies of the Earl of Cassils and now being in Ward through the Minority of the present Heritor who had Succeeded in the Right of the saids Lands being acquired from the Laird of Blairquhan The Tennents of the saids Lands Pursued a multiple poynding against the E. of Cassils and Whitefoord now of Blarquhan and the Heretor of Dalmertoun all pretending Right to the multures of the saids Lands The E. of Cassils alledged that during the Ward they should bring their Corns to his Miln of the Barrony of Cassils there being no Milns upon the Lands of Dalmertoun The Laird of Blarquhan alledged that he was infeft in the Lands of Blarquhan and in the Miln of Dalhovan upon a Right granted by Kennedy of Blarquhan cum astrictis multuris usitatis at such a time as Blarquhan had Right to Blarquhan and Dalhovan and to the Lands of Damertoun And that before the said Right granted by Kennedy of Blarquhan to John Whitefoord of Ballach Author to this Laird of Blarquhan the Tennants of Damertoun were in use to come to the said Miln and to pay the like multure and service as the Tennants of Blarquhan did and since the Right have been in use to come constantly to the said Miln It was Answered for Cassils that unless there were an express Constitution of Thirlage the said Lands of Dalmertoun being a distinct Tenement from the Lands of Blarquhan which hold of the King cannot be alledged to be astricted to the said Miln of Blarquhan And if it had been intended that the Lands of Dalmertoun should have been astricted It would have been exprest And when the same did belong to Kennedy of Blarquhan it cannot be said that it was astricted to his own Miln with the foresaid Servitude quia res sua nemini servit and he having Disponed his Miln it cannot be presumed that he would have Burdened his own Lands with a Servitude And though it were clear Kennedy had astricted the saids Lands of Dalmertoun yet he could not Constitute a Servitude without the Superiors consent in his prejudice when the Lands should Ward in his hands It was replyed by Whiteford of Blairquhan that the Superior had consented to the Thirlage in so far as John Gilmor and one Bonar having Comprysed the saids Lands of Dalmertoun from Kennedy of Blarquhan and having Assigned their said Comprysing to John VVhitefoord the said VVhitefoord by Contract did Assign the same to Kilkeren with a Reservation of the multures thereof to the Miln of Dalhovan And the said E. had granted a Charter to Kilkeren upon the foresaid Right The Lords thought That these Words Cum multuris usitatis do relate only to the quantity of the multures as to such Lands as can be shown to be astricted But before Answer to the Debate upon the said Charter and Reservation They ordained the Charter and Contract containing the Reservation to be produced That they might consider Whether it be in the Charter and how it is conceived and what it should operate if it were only in the Contract The Lords enclyned to think that a clear Reservation though there were not a preceeding Thirlage should import a Constitution as to these who accept or consent to such a Reservation D. 59. Leslie contra Leslie eod die PAtrick Leslie of Balquhoyn pursued a general Declarator of the Single and Liferent Escheat of John Leslie of Balquhoyn against James Leslie and his Spouse as nearest of Kin to the said John It was Alledged that the Horning was prescribed the Declarator being raised fourty years after the Horning It was Replyed That though Prescription should run against the King which was denyed yet in this case it could not The King being Minor the time of the Prescription diverse years and the Government being interrupted So that there was not Tempus utile during the Usurpation And the King is not in use to dispose of Escheats until application be made to his Majesty And by the Act of Parliament it is provided that the negligence of his Officers should not prejudge him The Lords Found That the Horning did not prescribe in respect of the Kings Minority and Interruption foresaid It may be asked If that reply of his Majestie 's Minority and Interruption were not competent And if the Escheat were gifted by a Lord of Regality or a Superior Quid Juris And it seemeth that a Horning being poena and once execute it doth not prescribe Seing the Rebel if he should survive fourty years his Liferent would fall to the Superior and there is no reason that he should Lucrari and be in better case ex culpa and by the continuance of his Rebellion for so long a time D. 60. Hume contra Creditors of Kello 12. Decemb. 1666. IN a Process betwixt Hary Hume and the Donator of the Forefaulture of John Hume of Kello and certain others his Creditors It was Found That a Comprising being deduced before January 1652 and being the first effectual Comprysing ought to be preferred to the posterior Comprysings so that they should not come in together pari passu In respect tho they were within year and day of the compleating and the making effectual the first Comprysing by Infeftment or Diligence yet they were not within year and day of the deduceing the said Comprysing and the said Comprysing being before the year 1652. doth not fall under the compass of the Act of Parliament concerning Debitor and Creditor which bringeth in pari passu Comprysings led since January 1652 and being Correctoria Juris Communis ought not to be extended D. 61. Thomson contra Stevenson eod die IN a Reduction of a Right and Disposition of certain Houses being pursued ex capite minoris aetatis It was alledged that the Disposition did bear 500 merks to be payed and the Defender was content to quite the right being payed of the Sum. It was
as to not delivery It appeared by his Oath that he was trusted to the behoof of the Pursuer and was in effect a Depositar so that he could not cancel the said Bond without consent of the Pursuer To which It was Answered That the Decreet was Extracted as said is and that immediatly upon the pronounceing of the same he had applyed to the Lords to the effect foresaid And it cannot be said that he had any Trust from the Pursuer but only from her Father And tho he could be thought to be a Depositar the manner and quality and terms of the Depositation could not be proven otherwayes but Scripto or Juramento The Lords notwithstanding Thought they were concerned to adhere to the Decreet being in foro least their Decreets should be obnoxious to that prejudice that even when they are in foro they may be questioned and altered Some of the Lords were of the opinion that the great consideration the Lords should have is to do Justice and that the party having omitted nothing upon his part neither before nor after pronounceing of the same and upon the matter the reason of Suspension as to the point of Justice and Law being unanswerably Relevant It was hard that a Party should be grieved upon a pretence of form there being a singularity in this case upon which the Honour of the Lords may be salved viz. That the said Decreet was Extracted with too much precipitation D. 226. Joynt Petition of the Advocates 26. January 1675. A Joint Petition was presented by the Advocates that had withdrawen whereby they did not expresly desire that they should be readmitted but did hold forth that they were free of and hated the very thought of Sedition and that the Lords who did best know the Reasons of their withdrawing would vindicate them to His Majesty and that they were willing to serve with that freedom which their predecessors had formerly and which they conceived was no more than was necessary for these of their station in order to the interest of the People that they acknowledge and were willing to submit to the just Power of the Lords as their predecessors had enjoyed the same and desired that the Petition should be transmitted to His Majesty as satisfactory Some of the Lords thought that the Petition was altogether dissatisfactory and should be thrown over the Barr being as to the manner in a joint and Factious way And as to the matter no ways satisfactory insinuating a qualification of the Lords Power and their Submission and that the Lords pretended to a Power which their Predecessors had not and that was not just Others of the Lords were of the opinion That whatever mistakes there might be as to the manner It was hard upon that account to reject it and that if the time was not so pressing that which was appointed for Addresses being to Elapse the very next day it might have been helped as to the manner by giving Intimation to the Advocates that it would not satisfy But there being no time for that and the certification being so high and heavy viz. utter and perpetual incapacity it might be justly said as it is Reported a Judge in England had said in the case of a person accused of Theft whom he enclined to favour by reason of the meanness of the value of the thing that was stollen being a Watch of Brass only and the matter of the Watch being beneath that value which the Law of England requires for punishing Theives Capitally And it being Alledged that the Fashion with the Matter did exceed the value foresaid It is said that he Answered That he would take no Mans Life for the Fashion and it were hard for the Fashion and modus and the way of Address to take from so many persons their Livelyhood and from the Countrey their Service that was so necessary to them And that the Advocates fault being a Joint-withdrawing they might conceive that the expiation of the same should be by a joint Address And yet the Petition was not joint as to all the Advocates concerned many having given in and being to give in several Petitions And as to the matter it was Represented that though the Petition is general yet the generals therein contained do imply the particulars that would be satisfactory seing the Lords did not pretend to any power but that which was just and no violation was intended of their Liberties neither was any innovation introduced or obtruded upon them or their carriage in their station Upon all which It was thought that the Petition should be transmitted simply to the effect it might import Interruption of the Prescription and Certification any Acts of Interruption even quales quales being sufficient And the more short that the Prescription be and the higher the Certification and prejudice of Prescription as in this case the Interruption being the more favourable The Lords notwithstanding Found that the Petition not being satisfactory could not be transmitted to any effect And yet did declare that albeit the Proclamation was conceived in these terms viz. That if the Advocates should not give satisfaction betwixt and the 28. day if they should apply upon the 28. day their Application should be thought to be within the time contained in the Act And that in stile of Law these words betwixt and a certain Term does not exclude the day of the Term. They declared also That the Petition being dissatisfactory upon that account amongst others viz. That they did not offer satisfaction nor desire to be readmitted That Petitions being given in severally and bearing that they desired to Re-enter and were willing to give satisfaction conform to the Kings Letter and Proclamation should be received and transmitted as satisfactory D. 227. Eod. die UPon a Bill the Lords Found That Parties having a joint and equal Interest in Lands and Tenements both as to the Right it self being disponed to them jointly and as to the respective Proportion and Parts of the said Tenements the principal Writes should be keeped by such as offered Caution to the other Portioners and that Transumpts should be given to the other Persons concerned upon the Common Charges of them all D. 228. 27. January 1675. IN the case abovementioned 5. January instant concerning Con-cautioners obliged conjunctly and severally for the Principal without a clause of mutual Relief The Lords Found That one of the Cautioners having payed and taken Assignation the others had a good Defence against him for his own part notwithstanding of the Reasons there abovementioned and that it was urged that the Co-cautioner could not be forced to relieve the Defender if he had payed the whole seing he had neither actio mandati there being none given by either of the Cautioners to others nor was obliged to relieve the other Cautioners by an express Clause which is ever insert when mutual relief is intended And that this is clear Law it appears from the Title of the Civil Law de
the said Disposition and yet these in whose favours the Disposition is made may choose Curators who will have the Administration of any other Estate belonging to them But if they be Puberes their persons are free and neither of the said Administrators can pretend to the keeping of them quia curator datur rebus D. 317. McKneish contra Bryce and her Husband eod die A Woman being pursued upon a Bond and having alledged that it it was Null because she was vestita viro The Reply that she promised payment after her Husbands decease tho the Sum was only 100 lib. Scots was Found not to be probable by Witnesses Glendoich Reporter D. 318. _____ contra _____ 16. Decem. 1675. THE Lords Found That a Merchant being in use to furnish diverse Years That a current accompt did not prescrive Tho some were of Opinion that the Act of Parliament bearing no distinction the Articles of Accompt ought to prescrive from their Respective Dates Seing otherways the Act of Parliament may be eluded both in the case of Compts and other cases which prescrive by the Act. Nevoy Reporter D. 319. Wilson contra Deans 17. December 1675. IT was Found That a Woman keeping a Shop and Traffiqueing as a Merchant with the knowledge of her Husband he is Lyable for Debts Contracted by her upon the account of her Traffique Actione institoria Forret Reporter D. 320. Thomson contra Mr. James Eleis eod die THE Lords Found In the case of a Right of Moveables granted by a Husband to his Wife with the burden of his Debts and a Provision that they shall be affected with the same That the property of the Goods is settled in the person of the Wife so that she may dispose of the same And these who acquire Right thereto are not concerned to enquire whether the price be converted to the use and satisfaction of the Creditors who will have a personal Action against the Wife So that she will in effect be in the case of an Executor and Trustee But if the Goods so affected be extant the Creditors of the Husband will be preferable to the Wifes proper Creditors her Right being fiduciary as said is and to the use foresaid Praesentia Vide supra 9. December 1675. The Creditors of James Mastertoun D. 321. _____ contra _____ 21. Decem. 1675. A Father having made a Disposition in favours of his Son reserving his own Liferent with power likewayes to dispose of what he had provided did appoint certain Persons as Curators and to have Administration of what he had provided dureing not only the Pupillarity but the Minority of his Son and nevertheless his Son having chosen Curators after his Pupillarity there was a Competition betwixt the said Curators and the Person appointed by the Father to Administrate The Lords Found That the Son as to his Person was not in potestate of either of the said competing Curators seing Curator non datur personae sed rebus and as to any other Estate belonging to the Minor any other way than by the Provision of his Father the same was to be governed by the advice of the Curator named and chosen by himself But the Lords demurred as to that Question viz. Whether the Father might affect the Right granted by himself with the Quality and Provision foresaid that the Person named by him should have administration of the Estate disponed by him And some were of the Opinion that there is a difference betwixt a Stranger and a Father in respect Strangers are not obliged to give and what they are pleased to give they may affect and qualifie their Right thereof sub modo and with what Provisions they think fit whereas a Father has a Duty lying upon him in nature to provide his Children and by the Law he may name Tutors to his Children but after Pupillarity he cannot put them under the power of Curators without their own consent and if this practice should be allowed there should hereafter be no election of Curators They did also consider that the Right granted by the Father was in effect donatio mortis causa seing the Father retained possession and a power to revock And it seemed that as the Father could not in Testament make Curators so he could not do the same by a Legacy or any such Donation mortis causa D. 322. Mr. of Rae contra Dumbyth 8 February 1676. IN a SpuilÈie at the Instance of the Master of Rae against Dumbyth It was Alledged The Pursute was prescrived because not intented within 3. Years so that it could not be sustained to give the Pursuer Juramentum in litem and violent Profits It was Replyed for the Pursuer That long within the 3. Years a pursute for Depredation had been intented before the Justice Which being of a Higher Nature and including Virtually and in consequence the conclusion of Restitution and Profits was a sufficient Interruption as to this pursute The Lords notwithstanding Found the pursute prescrived Newbyth Reporter Mr. Thomas Hay Clerk D. 323. Riccarton Drummond contra _____ eod die THE Lords Found That a special Service in an Annualrent doth give Right to Heretable Bonds and all other Heretable Estate whereupon Infeftment did not follow and includes a General Retour as Homo doth include Animal Newbyth Reporter Hamilton Clerk D. 324. _____ contra _____ eod die THE Lords Found That when Creditors did compear in Adjudications not being called they ought to be admitted with that quality that since the course of the Adjudger is stopt by their Compearance the Adjudger shall be in the same case as to any Adjudication at their instance as if both Adjudications were within year and day D. 325. Colledge of Aberdeen contra _____ eod die THE Colledge of Aberdeen having Right by Act of Parliament to the Vacant Stipends within the Bounds thereinmentioned pursues for a Vacant Stipend the Bishop of Ross compeared and alledged That the Kirk was his Mensal Kirk so that there could be no Vacant Stipend The Lords Found That the Colledge should have Right to any Stipend that belonged to the former Ministers either modified to them or of which they have been in Possession and that it was consistent that the Kirk should be Mensal and yet the Minister should have a Stipend and that the Pursuers should have Right thereto being Vacant Craigie Reporter D. 326. _____ contra _____ 9. February 1676. IN a Suspension a Reason of Compensation is lybelled viz. That the Charger was debitor to the Suspender upon account of a Fraught and it was offered to be proven by the Chargers Oath that he was so Debitor and by Witnesses what the Fraught extended to The Lords Found the Letters orderly proceeded and that Compensation was de liquido in liquidum and not de liquidando by Witnesses D. 327. _____ contra _____ eod die A Pursute was intented for a Sum of Money which the Defender was obliged by his Promise to pay in case he should be married having gotten