the said â—ine of three pounds Scots from any Person whom they shall find within the said Barr. And in case the Party refuse to pay the same that they carry them to Prison untill they make payment thereof Certifying the saids Macers that if upon delation of them by any of the Clerks they shall be found negligent in performing of what is hereby enjoyned to them they shall be fined in the said sum of three pounds Scots and imprisoned during the pleasure of the Lords And this Sentence to be inflicted upon the Macers or other transgressors of this Act as oft as they shall be found to contraveen the same ACT concerning Priviledged Summons Iuly 21. 1672. THE Lords considering that divers Summons as declarators and others which by the constant from and practice of this Kingdom did always abide 21. days warning have of laâ—e been execute sometimes upon six days as being priviledged by deliverance of the Lords upon Bills given in for that effect and seeing these Bills being dâ—awn and given in by Writers to the Signet do passe of Course without perusal or consideration thereof by the ordinary which hath given occasion to the foresaid abuse And finding it expedient that it be determined for the future what Summons shall be Priviledged Therefore the saids Lords do ordain That in time coming all Summons shal come in upon 21 days warning And that none be priviledged by the Lords deliverance or otherways except these following viz. Removings Recent-spulzie and Recent Ejections where the Summons is Execute within 15 days after the comitting of the deed intrusions and coming in the Vice Causes alimentary Exhibitions Summons for making arrested Goods forthcoming Transferrings Poyndings of the Ground Waknings Special Declarators Suspensions Preventoâ—s and Transumpts And that Recent-spulzies Ejections Intrusions and Succeeding in the Vice be execute upon 15 days and that all the rest of the foresaids Summons be Execute upon six days and that the second Citation be likewise upon six days And it is further declared That all the Summons above-mentioned shall be priviledged as a foresaid whither the Summons bear a priviledge or not And the Lords do hereby prohibit and discharge the Writers to the Signet to Write Form or Present to the Clerks to be put in any Bills for priviledging any Summons but these above-exprâ—st Certifying such as shall coutravâ—en that for the first fault they shall be fyned in one hundred merks Scots to be applyed for the use of the poor and for the second fault they shall be deprived of their Office It is always hereby declared that this Act is not to be extended to Summons execute against Persons Inhabitants of the Burgh of Edinburgh or the contiguous Suburbs thereof who may be Summoned by the second Citation upon 24 hours conform to the custom formerly observed ACT anent payment of dues for Summons containing two dyets Iuly 11. 1672. FOrasmuch as the Lords after mature dâ—liberation did think fit That the former custom of continuing Summons and taking out of Act and Letters thereupon in all such Causes and Processes as formerly did require and abide continuation should be laid aside in time coming And that in Place and Lieu thereof the Summons in all Process of the nature foresaid should contain two distinct warrands for citing the Defenders at two several times and to two several dyets and dayes of Compearance with the same Certification as before was usual and contained in the first and second Summons respective And that Procâ—ssâ—s should be granted in the Causes foresaids upon Summons containing the warrands above-mentioned and Execute conform to the same as formerly was granted upon Summons Act and Letters And upon an overture given in and approven by the Lords of Articles An Act of Parliament hath followed and is made to that purpose As the Act of Parliament intituled Act discharging second Summons at length proports And seing the Lords of Session when they had the said alteration of the former Custom under their consideration thought it no ways reasonable that thereby either His Majesties Secretary or the Clerk of Register or the ordinary Clerks of Session his Deputes should be prejudged of their dues and profits formerly belonging to them respective And in regard the Summonds which are to contain the said distinct warrands for Citation are in effect and upon the matter two several Summons and are equivalent to Summons Acts and Letter and have the same effect to all intents and the profits formerly arising from all Acts of Continuation and Letters thereupon are a considerable part of the Dues belonging to the Lord Secretare Lord Register and his Deputs for their Incouragement and Service in their respective Officesâ— and upon the considerations foresaid it was resolved That notwithstand ing the said alteration the same should be continued and secured to them in manner after mentioned Therefore and in order to their satisfaction The Lords of Session does Statute and Ordain That for the Signing of all Summons which formerly did abide continuation and in lieu thereof shall now and hereafter continue the said warrands for two several Citations the keepers of the Signet shall have and may take as much as formerly he might have taken both for Summons and Letters while the same were signeted a part As also it is hereby appointed That all the saids new Summons containing two distinct warrands for citing to the Defenders two dyets be subscribed by the Clerk of Register or in his absence by one of his Dâ—puts or the ordinary Clerks of Session who at the subscribing thereof are to receive for the same the dues formerly payed for Act and Letters And the Lords do hereby discharge the keeper of the Signet to affix the Signet to any of these new Summons for two or more Citations but such as shall be subscribed by the Clerk of Register or his Deputes as said is and that no Process be granted upon auy such Summons unlesse they be subscribed by them in manner foresaid ACT concerning Bankrupts Ianuary 23. 1673. FOrasmuch as by an Act of Sederunt of the 26 February 1669. It is Satute an Ordained that all Decreets of Bonorum in time coming should contain a Clause ordaining the Persons in whose favour the Bonorum should be granted To take on and weare the habit of Bankrupts Which is a Coat or upper Garment which is to cover the Parties Cloaths Body and Armes whereof the one half is to be of a Yellow and the other half of a Broun Colour and a Cape or Hood which they are to wear on their Heads Partie-coloured as said is which habit they are to take on before they come out of Prison and come out with it upon them And that it shall be lawful to the Creditors to seiz upon and imprison any of them who shall be found wanting the foresaid habit And the Lords considering that this Course for preventing and punishing of Bankrupts hath through the in-observance of the same proven
said is the Lords ordains the said Lord Caringtoun to be Exonered and Discharged of the saids Records and of his Trust in keeping of the same and ordain an Act of Exoneration to be extended thereupon in his Favours The Lords do ordain the Inventar of the Register Books to be set down in order in time coming and according to the several matters contained therein First of the Records of Parliament Secondly of the Records of Council Thirdly the Registers of Session and amongst them of Registrate Writs a-part of Decreets and Acts a-part and of Books of Sederunt Next to these the Registers of Exchequer Then the Registers of the Chancellory And thereafter the Registers of Seasins both the general Registers at Edinburgh and the special Registers of the Shires And in all to keep the order of time As for the Warrands of the Registers of Session since the year 1660. they are yet in the hands of the Clerks of Session And the former Warrands being in great Masses without any Order the Lords do appoint that the said Masses be sorted putting the Registrat Writs together and the Processes together and that the number of them both be taken and set down that thereafter they may be also digested according to the Order of time It is appointed that so soon as the Inventary shall be perfected it shall be insert in the Books of Sederunt ACT anent the manner of Booking Decreets of Registration November 21. 1676. THE Lords considering that where Registrations are persued by by way of Action it is and hath been the custom of the Clerks to keep in their hands the principal Writes decerned to be Registrate in the same manner as they do where Writs are Registrat upon the Parties consent Therefore the Lords ordain that these Decreets of Registration be Booked together with Bonds Contracts and other Writes which are Registrat upon the Parties consent according to the date thereof and that the Process be keeped with the Warrants of the Registrat Writes ACT anent the Registers of Seasins and Hornings in the several Shires Ianuary 4. 1677. THE Lords considering that by the Act of Parliament in Anno 1672. Concerning the Regulation of Judicatories the Keepers of the Registers of Hornings and Inhibitions and Seasins and Reversions in the several Shires are ordained to make exact Minut-books relating to these Registers in manner prescribed in that Act and the Sheriff Bailzie of the Regality or Royalty or their Deputs with two Justices of Peace if they be present are appointed at the times expressed in the said Act to take inspection of the saids Registers and the Minut-books relating thereto and after Collationing thereof to Subscribe the Minut-book under the Penalty of an hundred Pounds Scots for ilk Failzie in not meeting and comparing the saids Registers And the saids Lords to whom the care of seeing the Premisses done is committed by the said Act having by Missive Letters of the 31. of Iuly last direct to the several Sheriffs of this Kingdom required them by themselves or their Deputs to go about the performance of what is enjoyned to them by the foresaid Act and to return a satisfactory account of their diligence the first day of November thereafter now by-past certifying them if they failed they would be charged with Letters of Horning for the Penalties contained in the said Act and seeing the Sheriffs of the Shires after-mentioned and their Deputs viz. of Argile Renfrew Wigtoun Bute Peebles Selâ—irk Perth Kincardin Aberdene Nairn Sutherland Caithness Berwick â—orâ—ar and Inverness The Stewart of Kirkcudburgh and the Stewart of Orkney have not returned report to the saids Lords of their diligence in the Premisses therefore the Lords do ordain Letters of Horning to be direct against the saids Sheriffs and Stewarts and their Deputs Charging them to meet and to compare the Registers of Hornings Inhibitions Seasins and Reversions in their respective Shires with the Minut-books relating thereto and after Collationing of the same to Subscribe the Minut-books conform to the said Act of Parliament and to make report of their diligence therein to the saids Lords betwixt and the twenty day of February next and likewise Charging them to make payment to Sir William Sharp His Majesties Cash-keeper of the Penalties already incurred by them viz. an hundred Pounds Scots for ilk by-gone Failzie in not meeting and comparing the saids Registers at the times exprest in the said Act of Parliament and that within the space of fifteen dayes after the Charge as to such of the saids Sheriffs and their Deputs who reside upon this side of the River of Spey and upon twenty one dayes as to those who reside benorth Spey ACT concerning Arrestments February 1. 1677. THE Lords considering the great prejudice to Creditors and delay of Justice occasioned by Arrestments proceeding upon Decreets which are not ordinarly loused whereupon Debitors do procure delay of the Decreets at the instance of their Creditors against them before the same be extracted whereby lawful Creditors are hindered in recovering their jâ—st Debts until a several Process of double Poinding calling the Creditors and Arresters to dispute their Rights be raised and determined which if they should come in as distinct Processes by the course of the Roll would take a long time during which the principal Cause behoved to â—ist For remeid whereof the saids Lords do declare that they will receive all double Poindings for purging of Arrestments as incident Processes with the principal Cause without any new Inrolment and do further declare that if the Arrester proceed not in Diligence by an Action for making forthcoming whereby his Debitor may be Certiorat of the Arrestment and may raise double Poinding in the name of his Creditor in whose hands the Arrestment is made that they will grant no delay upon pretence of such Arrestments albeit upon Decreets But that the same shall be purged by Caution to be found by the Creditor to warrand the Debitor at the hands of the Arrester and that upon pretence of the Caution found they will not grant Suspension except upon Consignation after Distress by Decreet Likeas the saids Lords do declare that they will grant no Suspension upon Arrestments laid on after extracting of Decreets whether upon Decreets or Dependences but by way of double Poinding that thereupon both the Creditor and Arrester may be called ACT concerning Advocats Iune 7. 1677. THE Lords having called in the whole Advocats did intimate to them that whereas His Majesty had by a Letter of the 24. of May 1676. required the saids Lords to prevent and punish all Combinations and unwarrantable Correspondences amongst Advocats whereby they may forbear or refuse to Consult or Concur with these who did faithfully adhere to his Majestie 's Service and did continue in or early return to their Station Which Letter immediatly after receipt thereof was publickly read before the whole Advocats notwithstanding whereof some Advocats do refuse or forbear to meet with others of the
December 24. 1679. THE which day the Lords considering that notwithstanding of the Act made against Sollicitation and verbal Information dated the sixth day of November 1677. years Yet some Persons are so bold as to venture to Sollicite the Lords in their Actions And it being the Resolution of the saids Lords that so laudable and necessary an Act be made effectual Therefore they declare that in any Process now depending or which shall hereafter be intented before them when the same comes to be advised they will purge themselves concerning their receiving any Sollicitation or Verbal Information in the Cause if it shall either be desired by the Partis or moved by any of their own number And that they will delate the Persons who do Sollicite or Verbally inform them that they may be punished therefore conform to the said Act. ACT anent the taking of Renunciations from Persons Inhibited February 19. 1680. THE Lords considering That it hath been the ordinary Custom of Debitors to make payment of sums due upon Wodset or Anualrent by Infeftment and to accept Renunciations or grants of Redemption from the Wodsetter or Annualrenter albeit the Credtor had been Inhibit before payment which being made bona fide the Debitors conceived themselves secure and that they needed not search Registers to find Inhibitions against the Wodsetters or Annualrenters Which hath tended much to the detriment of Creditors seing such Sums secured by Infeftment were not arrestable For remeid whereof the saids Lords declare that if the user of an Inhibition upon search of the Registers or otherway shall find Infeftments of Annualrents or upon Wodsets in favours of their Debitor being Inhibit and shall make intimation by Instrument of an-Nottar to the Persons who have Right to the Reversion of the saids Wodsets or Annualrents that the Wodsetter or Annualrenter stands Inhibit at their instance and shall produce in presence of the Partie and Nottar the Inhibition duely Registrat Then and in that Case the Lords will not sustain Renunciations or grants of Redemption although upon true payment not being made bona fide in respect of the Intimation unless the Redemption prcceed by way of action the Inhibiter being always Cited thereto or by Suspension of double Poynding upon consignation of the sums whereupon the Annualrent or Wodset is Redeemable And ordain this Act to be Printed and afixed upon the Wall of the Utter-house that the same may be known to all the Lelges ACT against Petitions for alteration of Acts Extracted February 24. 1680. THE which day the Lords considering That some times after Acts of Litis contestation are Extracted Petitions are given in to them by one of the Parties craving the Act to be altered wherein there may be prejudice to the other Partie concerned not being present nor at that time obliged to be present conceiving himself in tuto after Extracting of the Act. For remeid whereof the Lords declares that in time coming they will receive no Bills or Supplications for alteration of Acts after the Acts are warantably Extracted seing both Parties or either of them may have a sight or Scroll of the Act before Extracting if they desire the same And likewise because sometimes Bills are given in for adducing of Witnesses which have not been contained in the first Diligence but are alleadged to have come to Knowledge since the first Diligence was taken out or after taking out of the second Diligence whereby Witnesses come to be Examined when the other Partie is not present nor obleiged to attend that they may either object against the hability of the Witnesses or propone Interrogators to them Therefore the Lords do declare that in case upon any speciallity they do give warrant to Examine any Witnesses not contained in the first and second Diligence that they will only admit the saids Witnesses to be examined at the first and second Terms of Probation when both Parties are obliedged to attend His Majesties Letter in favours of the Lord Register anent the nomination of the Clerks of Session Iune 8. 1680. CHARLES R. RIght Trusty and well beloved Councellours and Trusty and well beloved We Greet you well Whereas by Our Letter to you of the 24. of May 1676. We did Ordain That the three Clerks of the Session who do Expede your Decreâ—ts shall be Nominated by the Senators of Our Colledge of Iustice in all time coming And that the Clerk of Register give them Deputations from time to time without prejudice to the Clerk of Register of all other Benefit and Emolument belonging to or depending upon that Office And seing the Office of Clerk of Register was then Vacant and that the Nomination of the Clerks of Session was always Inherent in and Depending upon the office of Clerk of Register And that since We have advanced Sir Thomas Murray of Glendook one of your number to the said Place And being well satisfied with the good Service done by him to Vs in the late Convention of Estates and upon several other occasions Therefore as a Mark of our Royal favour to him We do by these presents Recall our said Letter anent the Nomination of the Clerks of Session and do Impower Authorize and Appoint the the said Sir Thomas Murray during his enjoyment of the said Office of our Clerk of Register Solely to nominate and appoint the Clerks of Session So that upon Death Demission and Vacancy of any of the Clerks of Session the said Sir Thomas Murray is to grant Deputations to such Persons as he shall think fit and that during their Lifetime and shall as absolutely amply and freely use and exerce the said Office of Clerk of Register as any other Clerk of Register formerly did or might do declaring the same to be as Effectuall to the said Sir Thomas Murray as to his sole Nomination of the Clerks of Session as if it had been contained in his Gift of the Office of Clerk of Register And ordaining these Presents to be Recorded in your Books of Sederunt And so We bid you heartily Farewell Given at Our Court at Whitehall the twelfth day of November One thousand six hundred seventy and nine And of Our Reign the thirty one year Sic subscribitur By His Majesties Command LAUDERDAIL ACT concerning Nottars Iuly 29. 1680. THE Lords considering That by Acts of Parliament it is Statute and Ordained That Nottars be sufficiently Qualified for exercing that Office after examination by the Lords of Session that sufficient Caution be found for their due Administration of their Office and in case the Caution be not sufficient that new and better Caution be found and after the Decease of the Nottars their Protocalls are Ordained to be brought in to the Clerk of Register or his Deputs appointed by him to that effect who is impowred to Revise the Protocalls of all Nottars and consider in what Condition they are And albeit the due observance of these Acts of Parliament be a publick Concern as to the interest and
security of the whole Leiges Yet the saids Lords understanding that by reason of the late Troubles and the Confusions ensuing thereupon Especially during the time of the Usurpers these Acts have been neglected to be put in Execution In so far as many Nottars are Deceased whos 's Protocals are not returned to the Clerk of Register or his Deputes but do remain in the hands of their Relicts and Children which occasions divers inconveniencies and divers of their Protocalls are upon perusal found to be Defective and Unformal and some of their Cautioners are not sufficient Likeas divers Persons pretending to have been admitted under the Usurpers do presume to Officiat as Nottars albeit they be not lawfully Authorized so to do For redresse of which abuses and disorders The Lords do Ordain Letters to be direct at the Instance of the Clerk of Register or his Deput Clerk to the admission of Nottars for charging the Relict and Executors of such Persons as are Deceaâ—ed and their Cautioners to bring in and deliver to them the Protocall Books of the saids Nottars conform to the Act of Parliament and their Respective Acts of Admission And also Ordains General Letters to be Direct at the Instance of the Clerk of Register or his said Deput for charging such Nottars as they are informed to have Protocalls Detective or Informal to produce their Protocalls before the said Deput at the head Burgh of the Shire where the Nottar does Reside and where the Cautioners found for any Nottar is insufficient to charge that Nottar to find new and more sufficient Caution And Ordain these General Letters to be Execute upon six days and that against such Particular Persons only as shall be given in a List under the hand of the Clerk of Register And the saids Lords do hereby prohibit and discharge all Persons who were admitted Nottars under the Usurpers to Officiat as Nottars untill they be of new admitted And the saids Lords considering that it is Statute and Ordained by Acts of Parliament and specially by the 78. Act Parliament 5. Iames 5. That all Sheriffs Stuarts Bailzies and others both to Bâ—rgh and Land shall present their Clerks in presence of the Lords of Session to be Examined Sworn and admitted by them and seing the Clerks of these Courts have neglected for some time by past â—o compear before the saids Lords to be tryed and approven by them and it being necessary and the publick Interest of the Leidges that these Acts of Parliament be punctually observed in time coming Therefore the saids Lords do ordain and require all persons who hereafter shall be nominate Sheriff Clerks Clerks of Sâ—ewartries and Bailiries before they enter to and exerce their Office of Clerkship to compear before the saids Lords that they may be tryed and approven by them conform to the Act of Parliament Certifying them if they failzie therein they shall be deprived of their Offices ACT concerning Bills of Suspension November 9. 1630. THE Lords considering that by former Acts of Sederunt of the 9. of February 1675. and the 3. of Iuly 1677 They did give Warrant to the Ordinary upon the Bills to allow a sight of a Bill of Suspension to the Charger and to stop Execution for some time not exceeding a Moneth declaring also that a Bill of Suspension signed by the Ordinary though not expeded at the Signet should import a stop of Execution for the space of fourteen dayes from the date it was signed that in the mean time sufficient Caution might be found and that the Clerk of the Bills might enquire anent the condition of the Cautioner And now finding that abuses have crept in stops being procured from several Ordinaries from time to time and that when the first fourteen dayes after a signed Bill were elapsed a new one was presented and past which stopped Execution for other fourteen dayes and so might continue for a long time Therefore the Lords do declare that they will give no stops of Execution hereafter upon Bills of Suspension fourteen dayes from the date being a sufficient time both for seeing and expeding the Bill And Declares all other stops to be void except where Causes are ordained by the Lords to be Discust upon Bills and ordains the Clerk of the Bills to make a Minut-book both of past and refused Bills by the Alphabetick Order of the Parties sirnames which he is to make patent to any Charger that shall desire to see the same gratis and discharges him to present any new Bills in that Cause except to the whole Lords in time of Session or to three Lords in time of Vacance as he will be answerable at his peril and because Parties or their Procurators are accustomed to procure Suspensions upon pretence that the Copy of the Charge given by the Messenger is general or unformal and for verrifying thereof do produce forged Copies and sometime forged Writes for instructing Reasons of Suspension founded thereupon never intending to make use of the same and therefore do suffer Protestations to pass For remeid whereof the Lords do declare that if the Charger shall produce such a Suspension or a duplicat thereof under the hand of the Keeper of the Signet that in that case the Lords besides the ordinary expenses of Protestation will modifie large Expenses to the Charger for his delay and in case Protestation shall not be admitted but the Suspension shal come to be Discust and at the Discussing the Charge or other Writes mentioned in the Reason of Suspension be not produced The Lords Declares they will hold these Writes false and sorged and modifie large Expenses to the Charger but prâ—judice to insist against the forger of the saids Copies or Writes and ordain a Copy of this Act and of the other two Acts above-mentioned to be affixed upon the Wall of the Outter-House and Copies thereof to be delivered to the Clerk of the Bills to remain affixed on the Wall of the Bill-Chamber that he may exactly observe the same ACT anent the marking of Advocats Compearance for Defenders November 25. 1680. THE Lords declares that in time coming where several Defenders are conveened in one Summonds and that at the calling thereof by the Clerk an Advocat shall be marked compearing indefinitly for the Defenders and who shall likewise return the Process that Advocat shall be holden compearing for all the Defenders unless by the return upon the Process he qualifie his Compearance and express for which of the Defenders he compears and for which of them he doth not compear ACT in favours of the Macers February 15. 1681. THE which day there being a Petition given in to the Lords by their four ordinary Macers representing that where the Lords are in use upon application of Parties to grant Commissions for taking the Oaths of Parties and the Depositions of Witnesses in Causes where it appears by Testificats produced that the Parties or Witnesses are through age and infirmity unable to travel And sometimes Commissions
it cannot be understood of being under the Pursuers command all her life and so can only be meaned if Magdalen miscarry contrair to the Pursuers advice in some considerable matter of her carriage and however it is not a suspensitive condition hindring the payment of the Legacy but oblieging the Legatar thereafter The Lords found the Legacies constitute and in terms for said valid and as for Magdalens Legacy declared that in case Magdalen miscarried and took not the Pursuers Advice that she should be lyable to refound the Legacy to the Pursuer but would not put her to find Caution for that effect the condition being so general Katharin Kinross contra the Laird of Hunthill THe Laird of Hunthill being oblieged by Bond to pay a sum to umquhil Mr. Beverly and the said Katharin his Spouse the longest liver of them two in Conjunct-fee and the Heirs betwixt them which failzing his Heirs or any person he should design whereupon they were infeft in an Annualrent The said Katharin having charged for payment of the sum Hunthill suspended alleadging that she was but Liferenter and he could never be in tuto till the Feear were called The Lords formerly found the Letters orderly proceeded for the Annualrent but superceeded to give answer for the Stock till some to represent Beverly the Feear were called who now being called and not compearing he Debitor alleadged he could not be lyable to give up the Stock to the Charger being only Liferenter neither would her Discharge or Renunciation of the Wodset liberat him and his Estate but only a Renunciation of the Heir neither did the Charge at the Liferenters Instance take away the Annualrent and make the principal sum moveable unless it had been at the Feears Instance The Charger answered that she being Conjunct-feear was not a naked Liferenter albeit it resolved in a Liferent and therefore she craved that it should be declared by the Lords that she had power to uplift the Stock and to reimploy it as formerly and that her Discharge and Renunciation should be declared to be sufficient to liberat the Debitor and his Lands which being so found by the Lords The Debitor's appearing Heir being called would be an irreduceable and sufficient ground of Liberation The Lords declared as aforesaid but before Extract ordained the Conjunct-feear to give Bond for Reimployment of the sum to her self in Liferent and to Beverly's Heirs in Fee which Bond they ornained to be presently Registrat and kept by the Clerk in respect none appeared for the Heir Lady Milntoun contra Laird of Milntoun Iuly 26. 1662. LAdy Milntoun pursues probation of the Tenor of a Bond of Interdiction granted by her Husband young Calderwood Interdicting himself to her It was alleadged no Process because there was no sufficient Adminicles in Writ produced there being no Writ relative to the Interdiction Subscribed by the Party but only the Extract of Letters of Inhibition The Lords sustained this as a sufficient Adminicle in respect the question was not about a Writ that use to be retired such as Bonds In this Case also the Lords examined some Witnesses ex officio before Litiscontestation being old and valitudinary Margaret Robertson contra William Mcintosh Eodem die MArgaret Robertson pursues an Ejection against William Mcintosh who alleadged absolvitor because he offered him to prove that he had warned the Defenders umquhile Husband and that he dying shortly thereafter he inquired of his Wife if she would continue in the Possession and she declared she would not but willingly removed It was Replyed Relevat scripto vel juramento but witnesses cannot be received to prove willingness of Removing being mentis The Lords considering that the Defender alleadged no Tack nor Title in Writ but meer Possession were inclinable to sustain the Defense probable pro ut de jure but withall considering the Parties were Highlanders and had great advantage whoever had the benefite of probation therefore they ordained the Pursuer to condescend what Deeds of violence was done in ejecting her and both parties to conscend what persons were present at the Pursuers outgoing and the Defenders incoming being resolved to examine all these before answer so that there might be no advantage in probation to either party Sir John Aiton contra Adam Wat. Eodem die ADam Wat being first Infeft in an Annualrent out of Whitlands Estate Compryzed for some of the bygone Annualrents Sir Iohn Aiton being infeft after him in an Annualrent of the same Lands alleadges that Adam hinders him to uplift the Duties or poynd the Ground for his Annualrent and yet lets them ly in the common Debtor or Tennents hands until his Appryzing expire and therefore alleadges that Adam Wat ought either to Intromit and do exact Diligence and impute the same in his Compryzing or suffer Sir Iohn to do Diligence or at least that both may do Diligence effeiring to their Sums The Lords found that Adam Wat ought to be lyable for Diligence in time coming in uplifting the Rents to satisfie his Appryzing and as to the Annualrent found that after 40 days after each Term in which Adam as the first Annualrenter might poynd the Ground it should be leisom for Sir Iohn as the second Annualrenter to poynd the same without respect to Adam Wats prior Infeftment if he did not Diligence thereon within 40 days after ilk Term. Alexander Hamiltoun contra Thomas Harper Iuly 29. 1662. ALexander Hamiltoun pursues a Removing against Thomas Harper who alleadged Absolvitor because the Pursuer invaded and beat the Defender in the Session-house during the Dependence of this Cause and therefore by the Act of Parliament 1584. cap. 219. renewed 1592. cap. 173. The Pursuer cadit causa and the Defender must be Assoilzied The Lords having considered the saids Acts of Parliament and finding thereby that the Invasion must be Cognosced in a Criminal Process competent to the Justice and must be found summarly by an Inquest The Question was whether beating without effusion of Blood was such a Criminal Fact because it seems to be but a Ryot and next whether the Lords would take probation of it themselves or if it behoved to be Recognosced by the Justices The Lords found the Defense Relevant For the Act of Parliament anent violence in the Kings presence or in the Session House when the Session is sitting make such deads to incur death and therefore whether they would assign a Term to the Defender to prove that in the mean time he might proceed Criminally before the Iustice and instruct the Defense by the Sentence of the Iustice or whether they would receive the Probation themselves they resolved to hear the Pâ—rties upon it Laird Balnagoun contra Iuly 30. 1662. THe Laird of Balnaggoun having obtained a Gift of ultmus haeres of Thomas from the Exchequer in Anno 1661. and being thereupon Infeft pursues Removing against Rorie The Defender alleadged absolvitor because the Defender stands Infeft and by vertue of his
and all the Leidges were Inhibite to block or buy from him so that the Pursuer has acted against the Prohibition of the Letters and cannot pretend that he purchased bona fide being so publickly Inhibit and the Inhibition put in Record he neither should nor did adventure to purchase without special warrandice to which he may recur 4thly Such Solemnities when omitted may be supplied for there is nothing more ordinar than in Summons to add any thing defective in the Executions and abide by the truth thereof and many times these Solemnities are presumed done though not exprest as a Seasing of a Miln was Sustained though it bear not Delivery of Clap and Happer yet bearing a general with all Solemnities requisite it was Sustained and a Seasine of Land though it bear not Delivery of Earth and Stone seing it bear Actual Real and Corporal Possession and the Clause â—acta erant hac super solo c. ut moris est Yea in other Solemnities which the Law expresly requires as three â—lasâ—s in the Executions of Horning and six knocks and the affixing of a Stamp have all been admitted by the Lords to be supplied by proving that they were truely done though not exprest in the Execution Though Horning be odious and penal inferring the loss of Moveables and Liferent therefore it ought much more to be supplied in the case of an Inhibition which is much more favourable to preserve the Croditors Debt and here the Messenger hath added to the Execution that a Copie was Delivered and Subscribed the same on the Margent and it is offered to be proven by the Witnesses in the Execution that it was truely so done The Pursuer answered that there was nothing more essential in an Execution than delivering of a Copy for showing or Reading of Letters was no Charge but the delivering of the Copy was in effect the Charge and albeit Executions which require no Registration and may be perfited by the Executor at any time may be amended as to what was truly done Yet where Executions must necessarlie be Registrate within such a time else they are null after the Registration the Messenger is functus officio and his assertion has no Faith and seing the giving of a Copie is essential and if it be omitted would annul the Execution so after Registration it canâ—ot be supplied because in so far the Execution is null not being Registrate debito tempore for as the whole Execution would be null for want of Registration so is any essential part and whatever the Lords has supplied in Hornings yet they did alwayes bear that the same was lawfullie done according to the Custom in such cases and this Execution does not so much as bear that Phillorth was lawfullie Inhibite but only according to the Command of the Letters which do not express any Solemnitie and it hath been found by the Lords that a Horning being Registrate and not bearing a Copy Delivered it was found null because that part was not in the Register nor was it admitted to be supplied any way but that it were proven by the Oath of the Keeper of the Register that that Clause was upon the Margent of the Execution when it was presented to the Registister and was only neglected to be insert by him which shows how necessarâ— a Solemnity the Lords have accompted the giving of a Copy and Registrating thereof And if Solemnities of this kind be by Sentence passed over it will not only incourage Messengers to neglect all accustomed Solemnities but course of time may incroach on all other Solemnities whereas if this be found necessar none will ever hereafter omit it or any other necessar Solemnity The Lords found the Inhibition null and that the Delivering of a Copy was a necessar Solemnity which not being contained in the Register they would not admit the same to be supplied by Probation in prejudice of a singular Successor Acquiring for a just price Hadden contra The Laird of Glenegies Eodem die HAdden being Donator to the Marriage of the Laird of Glenegies pursues Declarator for the avail thereof The Defender alleadged Absolvitor because by an Act of Parliament 1640. It was Declared That whosoever was killed in the present Service their Waird and Marriage should not fall Ita est Glenegies was killed during the Troubles at the Battel of Dumbar It was Replyed that the present Troubles could not extend further than to the Pacification Anno 1641. After which there was peace till the end of the year 1643. 2dly The Parliament 1640. and all the Acts thereof are Rescinded It was Duplyed That the Troubles were the same being still for the same Cause and that the Rescissory Act contained a salvo of all private Rights Acquired by these Rescinded Acts. It was answered that this was a publick Law and the salvo was only of particular concessions by Parliament to privat Parties The Lords found that the Act 1640. reached no further than the Pacification by which the Troubles then present were Terminate The Lords Demured in this case upon remembrance of a Process before them at the instance of the Heirs of Sir Thomas Nicolson against the Heirs of the Laird of Streichen upon the Gift of Streichens Waird to Sir Thomas who Died the time of the War being Prisoner by occasion of the War and after Pacification that they might have seen what they had done in that Case but did not get the Practicque and the Parties being agreed they Decided in manner foresaid wherein this was not proponed nor considered that the foresaid Act was always esteemed an Exemption after the Pacification during the whole Troubles and no Waird for Marriage was found due that time though many fell during the War and if it had not been so esteemed the same Motives that caused the first Act to be made in Anno 1640. would have moved the renewing thereof after the Pacification and no doubt the King and Parliament Anno 1650. before Dumbar would have renewed the same for incouragement in so dangerous a War if it had not been commonly thought that the first Act stood unexpired Murray contra The Earl of Southesk and other Appryzers of the Estate of Powburn Eodem die JAmes Murray having Right to an Appryzing of the Estate of Sir Iames Keith of Powburn led at the instance of Mr. Thomas Lundie pursues thereupon for Mails and Duties Compearance was made for the Earl of Southesk and posterior Apprizers after Year and Day who alleadged that by the Act of Parliament 1661. betwixt Debitor and Creditor It is provided that the Lords of Session at the desire of the Debitors may ordain Appryzers to restrict their Possession to as much as will pay the Annualrent the Debitor Ratifying their Possession and now the Posterior Appryzers having Appryzed omne jus that was in the Debitor craved that the first Appryzer might Restrict himself to his Annualrent and they preferred to the rest of the Duties It was answered that this
the Reasons proposed Neither have I Recorded any Decisions but what was determined while I was present being resolved to take nothing at a second hand These Decisions were Written with many different hands but all of them were then in my Family and some of them understood not the Matter by which and the haste I was forced oftimes to put them to there was much uncorrect but I did expect that I might have been present and have overseen the Press my self I began to cause Transcribe them with a better hand and did consider whether it were not fit to amplifie and embellish the Disputes so as might have been expected from so pregnant and eloquent Pleaders as our time hath afforded who have been nothing short of their Predecessors but I thought that this would look too like a new Frame from my own Fancy or Memory after so long a time and therefore I resolved they should be keept as they were at first Written and if so they prove uniform as it will be a great evidence of your Lordships Justice so it will be a strong proof that they are sincere and authentick having been Written on the several Sederunt dayes for more then twenty years together and therefore I do intâ—eat the favour that what is uncorrect may be excused and supplied from the Matter I had the best opportunity to make these Observations being scarce a day absent in any of these Sessions wherein I have marked them from the first of Iune 1661. until the first of August 1681. And I was not one day absent from the thirteenth of Ianâ—ary 1671. when it pleased His Majesty to appoint me to be constant President of the Session in place of my Lord Craigmiller who had then demitted except the Summer Session 1679. when I attended His Majesty by His own Command during all which time I hope your Lordships will bear me Witness that I never used Arrogance or Insolence or the least reproachful or bitter expression against any of the number and I do with great thankfulness acknowledge that I could not have expected more kindness and respect than I found from your Lordships which made me in gratitude take this Opportunity to testifie the Honour and Value I have for that honourable Society and that I am in great sincerity LEYDEN October 30. November 9. 1683. My Lords Your Lordships most humble Servant IA DALRYMPLE His Majesties Gift and Priviledge to Sir Iames Dalrymple of Stair for Printing his Institutions the Acts of Sederunt and Decisions of the Lords of Session CHARLES by the grace of God King of Great-Britain France and Ireland Defender of the Faith To all and sundry Our Leidges and Subjects whom it effeirs to whose knowledge these Presents shall come Greeting Forasmuch as Our Trustie and welbeloved Counsellor Sir James Dalrymple of Stair President of Our Session hath Observed and Written the Acts and Decisions of the Lords of Our Session since Our happie Restauration to this time and hath also Written the Institutions of the Law of that Our ancient Kingdom of Scotland And We being well satisfied with his pains and diligence therien and knowing his long experience and knowledge of the Laws and Customs of that Our Kingdom and his constant affection and faithfulness to Vs and being confident of the great benefit may arise to all Our Subjects of that Our ancient Kingdom by publishing of the saids Decisions and Institutions and being willing to give to the said Sir James all encouragement therein Therefore wit ye Vs to have Ratified and Approven Likeas We by thir Our Letters Ratifie and Approve the Contract agreed upon betwixt the said Sir James and Agnes Campbel and Patrick Tailziefer Merchant in Our Burgh of Edinburgh now her Spouse having the Right to and exercing the Office of Our Printer in Our said ancient Kingdom of Scotland for Printing of the saids Books in all the Heads Articles and Clauses therein contained whatsomever Prohibiting all others to Print the saids Books for the space of ninteen years without the special leave of the said Sir James his Heirs and Successors as the said Contract of the date the 26. â—f March 1681. yearâ— at length contained in the said Gift and Ratification under Our Privie Seal more fully bears Given at Our Court at Whitehall Aprile 11. 1681. years and of Our Raignâ— the 33. Year Per Signaturam manu S. D. N. Regis supra scriptam Act of Sederunt Decimo Iunij 1681. THe Lord President did signifie to the Lords that he having these twenty years Observed the remarkable Practiques or Decisions that had past in this Court either upon Debate in presence of the whole Lords or upon Report from the Ordinary in the Outter-house expressing not only the sum of the Debate as it was considered and resumed by the Lords with the Interlocutor But also the Grounds whereupon the Lords proceeded and being of intention to put these Decisions in Print he had acquainted the King therewith and had His Majesties allowance and approbation therein And the saids Lords considering that the Lord President has been at extraordinary pains in Observing and Collecting these Decisions and that the publishing thereof will be of great use and advantage not only to the Colledge of Iustice but to the whole Leidges They approve his Resolution to Print the saids Decisions and did render him hearty Thanks for undertaking this Work tending so much to the publick Good Errata vide after the first Index INDEX Of the Acts of Sederunt ACt for uniformity of Habite amongst the ordinary Lords Iune 5th 1661. Act for continuing Summons and Writing in Latine as formerly 1661. Act anent Wakenings June 11. 1661. Act for retaining the principal Writs presented to the Register and giving forth only Extracts thereof 1661. Act for Protestation Money July 4th 1661. Act for granting Commissions to Debitors who are sick or out of the Countrey on the Act Debitor and Creditor July 31 1661. Act discharging Lessons the last Moneth of the Session November 28. 1661. Act anent Executors Creditors February 28. 1662. Act anent granting of Bonds by apparent Heirs whereupon Apprizings or Adjudications may follow in prejudice of the Defuncts Creditors 1662. Act anent Advocats and Expectants not paying their dues 1662. Act discharging Confusion the last day of the Session February 21. 1663. Act in favours of the Keeper of the Minute-Book June 6. 1663. Act concerning the buying of the Citiedail September 8. 1663. Act anent the Seal of Court November 26. 1663. Act against general Letters June 8. 1665. Act for Keeping the Barâ—s June 22. 1665. Act anent Proâ—tutors June 30. 1665. Act Ordering no sight of Process in the Summer Session which were seen in the Winter before November 8. 1665. His Majesties Instructions to the Commissars February 20. 1666. Orders to be observed in Confirmations of all Testaments Ibid. Instructions to the Clerk Ibid. Act against Decreets for not Reproduction of Cessiones bonorum November 6. 1666. His Majesties Letter
to the Lords concerning Prizes January 3. 1667. Warrand for general Letters for the Contribution due out of Benefices to the Lords November 17. 1668. Oaths to be taken for the price of Fowls January 15. 1669. Act anent Extracts of Registrate Writs bearing the Procurators names though not Subscribing December 9. 1670. Act anent Extracting Acts and Decreets Ianuary 20. 1671. Act against Magistrates of Burghs for letting Prisoners for debt go out of the Tolbooth Iune 14. 1671. His Majesties Order to the Commissioners of His Thesauray to free the Lords from the Cess July 19. 1671. Act for Keeping the Bars November 3. 1671. Act concerning priviledged Summons July 21. 1672. Act anent payment of Dues for Summons containing two Diets July 11. 1672. Act concerning Bankrupts January 23. 1673. Act Ordaining Advocations or Suspensions of Processes for Conventicles to be only past in presentia or by three Lords in vacant time June 24. 1673. Letter anent Pryzes July 8. 1673. Act for Ordering new hearings in the Outer House July 11. 1673. Letter from His Majestie against appeals June 17. 1674. Act concerning Acts before Answer July 23. 1674. Act for Tryal of those presented to be Ordinary Lords of Session July the last 1674. Act upon the Marquess of Huntly's disowning Appeals January 26. 1675. Act concerning Prisoners for debt February 5. 1675. Act anent Bills of Suspension February 9. 1675. Act Ordaining Processes after Avisandum to be carryed to the Ordinary that same day and Reported in his Week June 2. 1675. Heugh Riddel sent to the Plantations July 20. 1675. Act anent passing of Bills for liberty out of Prison July 21. 1675. Act concerning the granting of Protections February 1. 1676. His Majesties Letter concerning the Clerks June 20 1676. Act concerning the Registers Iuly 4. 1676. Act for Inventaring the Registers Books July 13. 1676. Act anent the manner of Booking Decreets of Registration November 21. 1676. Act anent the Registers of Seasines and Hornings in the several Shires January 4. 1677. Act concerning Arrestments February 1. 1677. Act concerning Advocates June 7. 1677. Act concerning the sisting of Execution upon Bills of Suspension July 3. 1677. Act concerning the Suspensions of Protestations July 10. 1677. Act against Solicitations November 6. 1677. Act concerning Bills relating to concluded Causes November 9. 1677. Suspensions of the Excize to be past only in presentia December 6. 1677. Warrand anent Precepts for giving Seasine upon Retoures February 15. 1678. Act in favours of the Lord Register February 22. 1678. Act Discharging Clerks to lend out Processes to any except Advocats and their Servants February 26. 1678. Act prohibiting the Clerks to give up Bills relating to Processes whereupon there is any Deliverance of the Lords July 23. 1678. Act discharging Advocates and Writers Servants to Write their Masters Subscription July last 1678. Act Ordaining Hornings and Inhibitions to be Booked which were not Booked the time of the Vsurpers January 3. 1679. Orders for payment of the Dues of the Signet where Suspensions are appointed to be discust upon the Bill January 24. 1679. Act in favours of Intrant Advocats February 7. 1679. Act anent Executors Creditors November 14. 1679. Act anent the Registration of Hornings November 19. 1679. Act against Solicitations December 24. 1679. Act anent the taking of Renunciations from Persons Inhibited February 19. 1680. Act against Petitions for alteration of Acts Extracted February 24. 1680. His Majesties Letter in favours of the Lord Register anent the nomination of the Clerks of Session June 8. 1680. Act concerning Nottars July 29. 1680. Act concerning Bills of Suspension November 9. 1680. Act anent the marking of Advocates compearance for Defenders November 25. 1680. Act in Favours of the Macers February 15. 1681. Act anent Seasines and Reversions of Lands within Burgh February 22. 1681. THE ACTS OF SEDERUNT OF THE LORDS of SESSION Beginning the 5th Iune 1661 and ending in February 1681. ACT for Vniformity of Habit by the ordinary Lords Iune 5th 1661. THE Lords did find that the whole fifteen ordinary Lords of Session of whatsoever Place Dignity or Title they be should carry and use the ordinary Habit and Robes of the ordinary Lords of Session in all time coming ACT for continuing Summonds and writing in Latine as formerly Iune 6. 1661. THE Lords taking to their serious consideration of how dangerous consequence the alteration of Formes and Customes is They have therfore ordained and hereby ordain all Summonds which formerly abode Continuation and shall be insisted in before them to be continued in time coming and an Act to be made thereanent and Letters to be direct thereon as was in use to be done before the Year 1651 not exceeding the Rates and Prices formerly exacted And also considering that during the Power of the late Usurpers the use and custome of writing in Latine was then discharged by the pretended Commissioners for Administration of Justice Therefore the saids Lords ordain all Charters Seasings and other Writes of that nature alswell such as pass the Seals as other ways which were in use to be formed and written in Latine to be continued in the same Language as formerly before the Year 1652. And to the effect none may pretend Ignorance hereof ordains these Presents to be published at the Mercat Cross of Edinburgh after sound of Trumpet by a Macer ACT anent Warnings Iune 11th 1661. THE saids Lords ordain That all wakenings of Processes lying undiscust be execute upon 24 hours against all such Persons as are for the time within Edinburgh or Leith and upon 6 dayes against all other Parties within this Kingdom and upon fifteen dayes against all such Persons as are out of the Kingdom ACT for retaining the Principal Writes presented to the Register and giving forth only Extracts thereof THE which Day the Lords of Council and Session taking into their consideration That the custom of the Clerks in the Usurpers time of giving back to the Parties the Principal Bonds Contracts and other Writes given in to be registrat did tend to the hazard and prejudice of the Leidges and was contrary to the practise formerly observed They do therefore ordain that the Clerks of Session and all Clerks of Inferiour Courts and Judicatories shall henceforth keep and retain the Principal Writes for which they shall be answerable and give forth only Extracts thereof as formerly before the Year 1651. and ordains these Presents to be published at the Mercat Cross of Edinburgh Likeas the saids Lords require the Clerks of the Session to be careful in preserving and keeping all Principal Bonds Contracts and other Writes to be given in to them to be registrat and that they be countable for them and for their Servants so long as they shall give them trust thereof And that once in the two years they deliver them to be keeped by the Clerk of Register with the Publick Records of the Kingdom ACT for Protestation Money Iuly 4. 1661. THE said day the Lords taking to their
Consideration the Litigiousness and Malitiousness of some Suspenders who upon frivolous and unjust Reasons and Grounds purchase Letters of Suspension and Advocation and will not at the Day of Compearance nor on any other of the Days appointed for Production of the saids Principal Letters of Suspension and Advocation produce the respective Letters aforesaid but keep the famine up of purpose to trouble vex and put to farther Charges and Expenses the Chargers and Parties Persuers in the Principal Cause Advocated to the saids Lords Therefore the saids Lords ordain the several Sums of Money following to be payed by the saids Suspenders and Purchasers of the saids Letters of Advocation to the Chargers and Parties Pursuers in the Principal Cause Advocated to the saids Lords And that upon their purchasing of Protestation or Act of Remit against the said Suspenders and purchasers of the saids Letters of Advocation viz. If the sum charged for be an hundred merks or within the same the sum of 8. lib. Scots and if the sum be above 100. merks or not a liquid sum the sum of ten pounds money foresaid And for every Remit the sum of 15. lib. Scots and ordains an Act to be extended hereupon in manner foresaid ACT for granting Commissions to Debitors who are sick or out of the Countrey on the Act Debitor and Creditor Iuly 31. 1661. THE Lords of Session considering that in prosecution of the Act of Parliament of the 12. of Iuly last anent Creditor and Debitor such Debitors as are far off the Countrey or are or shall be disabled by Sicknesse to come here to take the benifite of the Act will be thereby prejudged of the benefit thereof if some course be not taken to prevent the same They do therefore impower the Lord President or the Lord Register or any two of the Lords of Session upon Petitions and sufficient Attestations of the Sicknesse of any Debitor or of their being forth of the Countrey to give Commission during this ensuing Vacation to such Persons in the Countrey as they shall think fit to receive the Oath and Declaration of the Debitors conform to the said Act and to report the same betwixt and the day of November next to come to the Clerk of Register or his Deputs Clerk to the Bills to be Recorded with others of that nature ACT discharging Lessons the last moneth of the Session November 28. 1661. THE same day the Lords considering that in the end of the Session the giving way to Young-gentlemen to give proof of their Literature by making publick Lessons is greatly prejudicial to the Leidges that time which is appointed for hearing and discussing of Interloquitors being taken up with the saids Lessons Therefore the Lords renews a former Act made to the effect after-specified in Anno 1650. And of new ordains in all time coming That any who are to make their Lessons shall come and make them at such times of the Session as the hearing of them be not prejudicial to the administration of Justice and that none shall be heard to make such Lessons any time the last moneth of of the Session ACT anent Executors Creditors February 28. 1662. THE which day the Lords of Councill and Session considering the great confusions that arises amongst the Executors of Defunct Persons and prejudices sustained by many of them in prosecution of their respective diligences against the Executors of Defunct Persons and otherways by obtaining the saids Creditors to be themselves decerned Executors Creditors to the Defunct in prejudice of other Creditors who either dwelling at a far distance or being out of the Countrey or otherways not knowing of the death of their Debitors are postponed and others using sudden diligence are preferred In respect whereof and for a remeid in time coming The saids Lords declare and ordain that all Creditors of Defunct Persons using Legal diligence at any time within half a year of the defuncts death by citation of the Executors Creditors or intrometters with the Defuncts Goods or by obtaining themselves decerned and confirmed Executors Creditors or by citing of any other Executors confirmed the saids Executors using any such diligence before the expiring of half a year as said is shall come in pari passu with any other Creditors who have used more timely diligence by obtaining themselves decerned and confirmed Executors Creditors or otherwise It is always declared That the Creditor using posterior diligence shall bear a proportional part of the charges wared out by the Executor Creditor first decerned and confirmed before he have any benefit of the Inventarie confirmed and that it shall be lawful to the saids Creditor to obtain himself joyned to the said Executor and ordains these presents to be insert in the Books of Sederunt and to be Proclaimed at the the Mercat Crosse of Edinburgh ACT anent granting of Bonds be appearand Heirs whereupon Apprysings or Adjudications may follow in prejudice of the Defuncts Creditors THE said day the Lords of Council and Session taking to their consideration the manyfest Frauds and Prejudices done by appearand Heirs to the Creditors of their deceast Fathers or other Predecessors in their just and lawful debts Therefore and for preventing any such fraud for the future the saids Lords declare That if any appearand Heir shall grant Bonds whereupon Adjudications or Apprysings shall be deduced to their own behove or that the saids Apprysings or Adjudications shall return before or after the expyring of the Legal Reversion in the Persons of the saids appearand Heirs or any to their behoves In either of these cases the saids Apprysings or Adjudications shal no ways defend them against their Predecessors Creditors but that they shall be lyable as behaving themselves as Heirs to their predecessors by intromission with the Rents of their Estates so Adjudged and Apprysed nor shall it be lawful to them to renunce to be Heirs after such intromission and ordains an Act to be made thereupon and to be registrate in the Books of Sedernut and to be published at the Mercat Cross of Edinburgh ACT anent Advocats Expectants THE said day the Lords of Council and Session understanding that the greatest number of the Advocats and Expectants admitted since the first of Ianuary 1648. years Are deficient in paying of Dues to the keepers of the Box for the Advocats to wit twenty merks for every Advocate and ten merks Scots for every Expectant to the prejudice of the Box appointed for the poor and others their publick affairs Therefore the said Lords ordain all Advocats and Expectants admitted since Ianuary 1648. who are deficient in payment of the saids dues and all others who shall be admitted and receive the said respective priviledges in time coming to pay the saids dues to the keeper of the Box for the time And ordains Letters of Horning and Poynding upon sex days to be direct against the deficients upon a subscribed Roll by the Thesaurer and ordains no suspension to passe but upon consignation ACT discharging
are grantted where the persons live at a great distance and the matter is of Small moment By granting of which Commissions the Petitioners are frustrate of the Dues payable to them in case the Parties and Witnesses did come here and Depone before the Lords and therefore craving that they might have their Dues for Parties and Witnesses where they are Examined by Commission which being taken to consideration by the saids Lords they Ordain that in time coming where Commissions shall be granted by the Lords for Examining Parties or Witnesses that the Macers shall have the half of the Dues which are payed to them when Parties and Witnesses do compear before the Lords and Depone viz. twelve shilling scots for ilk Party to be Examined by Commission to be payed in manner following viz. where a Commission is granted for taking a Parties Oath that the Dues be payed to Francis Scot Keeper of the Minut-book within fourty eight hours after the Commission shall be put up in the Minut-book and in case the same be not payed within that space that the Commission shall be delet out of the Minut-book and not Extracted until the same be put up again and the Dues payed and that the saids Dues for Witnesses be payed at the return of the Report and Commission before an avisandum be put up thereof in the Minut-book And to the end the number of the Witnesses may be known that the Person to whom the Commission is granted shall set down upon the back of the Commission or Report a list subscribed by him of the Witnesses names and the Clerks are hereby Ordered to insert in the Commission a Warrant to the Commissioner to transmit that list with the Report of the Comission and that Francis Scot attest under his hand that payment is made to him of the saids Dues before an avisandum be put up of the Report in the Minute-Book ACT anent Seasins and Reversions of Lands within Burgh February 22. 1681. THE Lords of Council and Session considering that the Act of Parliament 1617. anent the Registration of Seasins and Revâ—rsions of all Lands and Annualrents there is an exception of Land and Annualrents lying within Burgh and within the Burgage Lands of Royall Burrows which is supposed to have been upon account of the Books of the Town Clerks of Royal Burrows wherein the Seasins and Reversions of such Lands might be found Nevertheless the Lords finds that not only Seasins within Burgh are sometimes omittâ—d and not found insert in the Town Clerk Books But that frequently Reversions of Tenements and Annualrents within Burgh and Assignations to and Discharges of Reversions and Bonds for granting such Reversions are not to be found in the saids Books to the great detriment of the Leidges and especially of the Inhabitants of the saids Royal Burrows For Remeid whereof the Lords do appoint and ordain the Magistrates of Royal Burrows and their Successours in Office to take good Caution and Surety of their Town Clerks that now are or shall be in Office that they insert in their Books all Seasins of Lands Tenements and Annualrents within their respective Burghs or Burrow-lands and of all Reversions Bonds for granting Reversions Assignations to and Discharges of Reversions Renounciations and grants of Redemption of any Tenements or Annualrents within their Burghs or Burgage Lands that shall be given at any time hereafter within the space of threscore dayes from the dates thereof respective in like manner as is prescribed by Act of Parliament anent the Registration of Seasins or Reversions of Lands without Burgh and that the said Surety be under the pain of the damnage that shall befall to any Party through the Latency of the saids Writes which shall be past by the saids Clerks or presented to them to be insert in their saids Books Likeas the Lords ordains the saids Magistrates to insert an Act hereupon in their Town Court Books and to cause publish the same by Tuck of Drum that none pretend ignorance And further the Lords do Declare that if any Party shall neglect to insert their Seasins Reversions Bonds for granting of Reversions Assignations to and Discharges of Reversions Renounciations and grants of Redemption in manner foresaid that the Lords will hold and repute them as latent and fraudulent Deeds keeped up of design to deceive and prejudge the Purchasers of Tenements and Annualrents within Burgh bona fide for just and onerous Causes and ordains the Provost of Edinburgh to intimate this Act to the Commissioners of the Royal Burrows at the next Convention of Burrows And ordains thir Presents to be Printed and Published at the Mercat Cross of Edinburgh and other places needful CERTAIN DECISIONS Of several Debates Intented and Debated BEFORE THE LORDS OF COUNCIL SESSION IN Some Weighty and Important Affairs brought before them Beginning the 29. of June 1661. and ending in July 1681. Iames Talzifer contra Maxtoun and Cunninghame Iune 29. 1661. IOHN KER Merchant in Edinburgh having an Wodset-Right of some Tenements in Edinburgh William Clerk his Creditor Comprized the Wodset-Right from him and obtained Decreet of Removing against the Tennents of the Tenements Iames Tailzifer having Right to the Reversion of the said Wodset consigned the Sum for which the Wodset was granted in the hands of the Clerk of the Bills and thereupon obtained a Suspension of the Decreet of Removing and thereafter having obtained Right from William Clerk to his Appryzing did by Supplication desire the sum Consigned by him to be given up to himself 1. Because the Consignation was not orderly made conform to the Reversion And 2. Though it had been orderly yet before Declarator he might pass from the Consignation and take up his Money whereby the Wodset Right wouâ—d remain unprejudged 3. The Wodset-Right being now returned to himself by acquiring Clerks Appryzing he had thereby Right to the sum Consigned for Redemption of the Wodset Compearance was made for Maxtoun and Cunningham for whom it was alledged that the consigned Sum ought to be give up to them because before William Clerks Appryzing they and William Clerk had joyntly obtained from the King a Gift of the Escheat and Liferent of the said Iohn Ker who had been year and day at the Horn before Welliam Clerk Appryzed from him so that the sum Consigned being now moveable fell under Kers Eâ—cheaâ— and thereby they have Râ—ght to two third parts thereof and Clerk or Tailzifer by his Right can only have the other third and if the Sum were not â—ound to fall under Kers Eâ—cheat the Annualrent thereof during Kâ—rs 〈◊〉 would fall to the three Donators of his Liferent equally and the â—um ought to be given out in security to them for their Liferent and to Tailzifer as having Right to Clerks Appryzing in Fee except the third thereto Clerk had Right as joynt Donator with them neither could Tailzifer pass from his Confignation seeing thâ—y accepted thereof nor could he object against any informality in the
that Term was past before his Presentation at least before his Institution and Collation 2ly There being but a Decreet of Modification and no Locality The Earl alleadged Locality should be first made and he lyable but for his proportional part of the Stipend The Lords found that the Stipend affected the Teinds and the Minister might take himself to any of the Heretorsâ— in so far as he had Teind and therfore sustained the Condescendence and ordained the Charger to prove what Teind my Lord had without prejudice to him to crave his Relief Lady Craig and Greenhead her Husband contra Lord Luire Decemb. 7â— 1664. THe Lady Craig being Infeft in Liferent pursues her Tennents Compearance is made for the Lord Luiâ—e who Appryzed the Lands of her Husband and alleadges that he ought to be preferred because he stands publictly Iâ—feft and any Right the Lady has is but base holden of her Husband and before she attained Possessionâ— he was publickly inâ—eft It was answered for the Lady that her Husbands Possession is her Possession and so her Infeftment was cled with Possession from the Date thereof It was answered that that holds only in the case of an Infeftment to a Wife upon her Contract of Marriage but this was but an additional gratuitous Infeftment stante matrimonio she being competently provided before by her Contract In which case such Provisions cannot prejudge Lawful Creditors neither can the Hushands Possession give the benefit of a possessory Judgement to the Wife unless she had Possessed seven years after his Death The Lords found that such Infeftments as these being gratuitous and voluntar could not be prejudicial to the Husbands Creditors nor give the Wife a possessory Iudgement And the case here being with a Creditor of the Husbands they did not proceed further to consider and determine if the Husbands Possession in such a case would not validat the base Right as to any acquired Right thereafter Eccles contra Eccles. Eodem die IN an Action of a Compt and Reckoning betwixt these two Infants It was alleadged for the Defender that he being pursued upon his Fathers back-bond oblieging him to make Compt and Payment of the means of umquhil Fergus Eccles his Brother to Thomas Ecclesâ— and umquhil Andrew Eccles the Pursuers Father It was answered upon condition that Mr. Hugh the Defenders Father should have the third part to himself The Question was concerning the manner of Probation The Pursuer alleadged it was only probable scripto he being a Pupil and his Father dead The Defender alleadged it was probable by the Tutors Oath being so likely in it self that Mr. Hugh being the third Brother should have the third share and that Thomas the Tutor did accordingly allow him the third share and there was produced a Testificat of Balloche that there was an agreement Notwithstanding whereof the Lords refused to take the Tutors Oath ex officio seing they found albeit it were Affirmative it could not prove against the Pâ—pil Scot in Cairlyle contra Henderson and Wilson December 8. 1664. RItchard Scot having Charged Henderson and Wilson upon their Bonds they Suspend and offer them to prove payment of a part by Witnesses and alleadges that it being the Law of England that Wâ—tnesses can prove to take away Writ that therefore these Bonds being Contracted in England with English men the Suspenders ought to have the same benefit of Probation they would have had if they had been Arrested in England upon their Bonds or pursued there and adduced a Practick of Dury in Anno 1628. The Lords having accuratly Considered and Debated this Case amongst themselves and finding that locus contractus was in England But the Bonds bare expresly a Clause of Registration in Scotland And that such Bonds had been ordinar betwixt Merchants in England and Merchants in Scotland and in no time such a Probation admitted and that it would furnish an ordinary delay in such Cases to the disadvantage of Merchants and hindering of Trade by always offering to prove payment in England by Witnesses which could require long time Therefore they found the reason only probable scripto vel juramento Mr. Cornelius Inglis contra Mr. Rodger Hogg December 9. 1664. MR. Cornelius Inglis pursuing a Removing against certain Tennents near Dumbar upon an Infeftment and Appryzing It was alleadged for the Tennents that they were Tennents to Mr. Rodger Hogg by payment of Mail and Duty to him and he was not called The Pursuer answered non relevat unless the Defenders condescend upon Mr. Rodgers Right which might defend him and them The Defenders answered first that they could not be oblieged to Dispute their Masters Right but he ought to be called to Dispute his own Right 2ly It was insinuat that Mr. Rodger had an Appryzing and a Charge against the Superiour The Lords repelled the Defense unless the Defenders condescended upon such a Right as were valide to exclude the Pursuer being prior to his but the Tennents alleadged no such Right and Mr. Rodgers Charge was posterior to the Pursuers Infeftment Iohn Veatch younger of Dawick contra Alexander Williamson Eodem die JOhn Veatch pursues Williamson upon the Act betwixt Debitor and Creditor for paying to him of his proportional part of the Mails and Duties of Appryzed Lands as coming in pari passu with the Defender by an Appryzing within a year of his The Defender alleadged absolvitor because he has Right to the first Appryzing led before the Act of Parliament betwixt Debitor and Creditor and therefore he has the benefit of the 21. Act of the last Session of Parliament declaring that where an Appryzer for his own Security had redeemed a prior Apprysing and gotten Right thereto before the Act betwixt Debitor and Creditor The said first Apprysing should have the same effect it would have had before the Act Debitor and Creditor and should not come in pari passu The Pursuer answered that behoved only to be understood where the second Appryzer had upon necessity to shun the expyring of the legal redeemed and gotten Right to the first Apprysing which could not be said here because the Debitor being minor the legal had and has a long course to run The Lords sustained the Defense without any such limitation in respect of the express Tenor of the Act of Parliament Robert Learmonth contra Laurance Russel Eodem die RObert Learmonth being pursued by Laurance Russel for the price of Wines and the matter referred to his oath gave in a qualified Oath bearing that the Wines in question were sent to him not to be sold till further order and that therefore he keeped them unsold till the end of the year and when they were in hazard of spoilling sold them for 12 pound Sterling the Tun and that he that sent them was Debitor to him by Bonds and Decreets in a greater sum It was alleadged neither member of the quality was competent not the first because it was offered to be proven that the
and salted them themselves to be proven by their Oaths and would not sustain the Probation of the Custom seing the principal Decreet was not produced unless that at least the Testimonies proving that Custom were repeated and produced out of the old Process that it might appear whether there were any ground of Objection against the manner of Probation Lady Colvil contra Lord Colvil December 14. 1664. THe Lady Colvil pursues the Lord Colvil to relieve her of the whole Debt hererable and moveable of the Defunct his Predecessor because the Defunct in his Testament had named her his Lady Executrix and universal Legatrix with a special Clause that she should be free of all his Debt whatsomever The Defender alleadged Absolvitor because no Deed done by a Defunct in lecto or in Testament can prejudge his Heir The Pursuer replyed that this Testament was made in the Defuncts leige poustie The Defender answered that on Death-bed and by Testament equiparantur Which the Lords found Relevant and assoilzied Laird of Phillorth contra Forbes of Aslocon December 16. 1664. PHillorth as Donatar to the Escheat of Forbes of Aslocon and having obtained general Declarator insists in his special Declarator It was alleadged Absolvitor because the Horning whereupon the Gift was granted is null in so far as being beyond Dee it is upon six dayes contrair to to the Act of Parliament 1600. Declaring all Hornings beyond Dee on less then fifteen dayes null conform to a Decision in Dury albeit on a Bond bearing a Clause of Registration on six dayes onlyâ— February 14. 1625. Steuart contra Bruce It was answered for the Pursuer that the Acts of Parliament hinder not the agreements of Parties but is expresly anent Hornings on Lawborrows or the like but these are on the parties own consent by the Clause of Registration and if these should not be valide all the Hornings and other Executorials thereon beyond Dee since 1600. would be null and such Bonds would have no effect seing upon the Clause of Registration Horning could not be otherwise direct on six dayes and so they should not have any summar execution The Defender answered that the Act is general of all Hornings and bears a general Reason because it is impossible for Parties at such distance to come to Edinburgh to Suspend in four dayes and privat pactions cannot derogat from general Laws where the express reason is for publick utility contrair to which no man can make himself Rebel more then he can give power to Incarcerat himself where Law gives no warrant but prohibits The Lords Repelled the Defense and sustained the Horning Innes contra Forbes of Touchon Eodem die INnes having Charged Forbes of Touchon on an Act of Adjournal for an Assythment for wounding him and reparation of his Blood He Suspended and alleadge the Act was null wanting Citation Compearance or probation It was answered that being the Act of the Justice General who is Supream in criminalibus it cannot be recognosced by the Lords The Lords having considered the case amongst themselves thought that in what was truly Criminal as to corporal pains or amerciaments in way of punishment they would not medle with the Justice Sentences but Assythment being civil for the Damnage and Interest of the Party pursuable before the Lords they might recognosce thereon and therefore in respect that the Probation of the Fact was by a Process before the Baillies they ordained that Process to be produced before answer and the Suspender to condescend if there was any exorbitancy in the Sum decerned for the Assythment Mr. Thomas Paterson contra Watson December 17. 1664. MR. Thomas Paterson Charges Watson to remove from his Gleib who alleadged the Designation is null because it is not subscribed by the Ministers Designers but is only the assertion of a Nottar 2ly By the Act of Parliament 1663. anent Gleibs there is an exception of Royal Burrows to which Ministers Gleibs are not due ita est Dysert is a Royal Burgh The Charger answered to the first that the having a warrand from the Bishop and Presbytrie his instrument of Designation is as sufficient as a Seasine to give Right to Land And to the second the Royal Burrows excepted must only be understood of such who have not a Landwart Congregation but are chiefly constitute of an Incorporation for Trade but this Burgh is notourly known to be but a Burgh of Barony holden of the Lord Sinclar albeit it has the priviledge of Vote in Parliament and is a Parsonage The Lords Sustained the Designation but before Extract ordained the Testificat of the Ministers Designers under their hands to be produced Sarah Blomart contra Earl of Roxburgh SArah Blomart pursuing the Earl of Roxburgh he alleadged she could have no Processes being of the Vnited Provinces who are declared enemies to His Majesty It was answered that there was no Denunciation of War by His Majesty as King of Scotland nor any Proclamation in Scotland to that purpose It was replyed that there was a Warrant by the King and Council to cease upon all the Dutch Vessels in Scotland The Lords found that this was but an Imbargo and no Denunciation of War in Scotland and therefore found Process Mr. Iames Reid Minister of North-Leith contra William Melvil December 20. 1664. MR. James Reid Charges William Melvil for the Teind of hard Fish bought by the said William in the Lewes and imported by him at Leith He Suspends on this Reason that he bought the said Fish from Merchants in the Mercat and did neither take the same himself nor bought them immediatly when they were green from the Taker and so can be lyable for no Teind The Charger answered that he is decennalis triennalis Possessor of getting twenty shilling of the Last of all Fish imported at New-haven and for instructing thereof produces a Decreet in Anno 1634. and another in Anno 1662. and if need beis offers him yet to prove Possession The Defender answered that these Decreets are expresly against the Fishers or Takers of Fish but not against Merchants buying and importing the same and as for the Custome non Relevat unless it were an universal Custome established by Sentences for if some few Merchants should have to save themselves trouble given an uncertain acknowledgement according to their own discertion and no fixed Duty nor by no compulsive way it imports not The Lords Suspended the Letters except only for such Fish as should be taken by the Boats and Fishers of New-haven Agnes Young and her Husband contra Buchanans Eodem die AGnes Young pursues Buchanans her Children for her third of her Husbands Moveables and for her Liferent use of the other two thirds conform to her Contract of Marriage whereby she is provided to his Liferent of all Goods and Geir conquest during the Marriage moveable and immoveable The Defenders answered that the Pursuer cannot both have the third and the Liferent of the whole because it must be presumed
Possession as it was the Defuncts Possession So it did continue to be the true appearand Heirs Possession although none had been Served to this Day and therefore the Service or Infeftment following thereupon cannot take away from the true Heir the presumptive Possession of Law which the true Heir hath 2ly No Prescription can be valid against others But these that know or are at least oblieged to know the Right whereupon it proceeds but the true Heir was not oblieged to know their Service nor was he oblieged to Serve himself but when he pleased especially seing he could get no benefit as long as the Liferenter lived and that he was not oblieged to know the first Service appears because he was not called thereto otherways then by a general Citation at the Mercat Cross to all Parties having Interest which is but a point of meer form and prejudges no body and at least could not prejudge a Stranger living out of the Countrey animo remanendi there being neither special nor general Citation as to Persons out of the Countrey on 60. dayes The Lords found no weight in this last Point seing the Law requires no Citation on 60. dayes in cases of Retoures but only 15. dayes generally at the Mercat Cross which they find every man origine Scotus oblieged to take notice of or to have a Procurator at Edinburgh as in communi patriâ who may search the Register of Retoures whether in the publick Register or Town Books before they prescribe They also found that there was no ground for Prescription upon the first Act of Parliament as bearing only relation to these in the Countrey nor upon the last Act of Parliament as bearing only relation Retoures to be deduced thereafter neither did they sustain the Prescription upon the first part of the general Act of Prescription for they found the Liferenters Possession in the Competition of two Heirs not to be profitable to either of them in prejudice of the other nor yet to be the Possession of singular Successors seing it flowed not from these singular Successors but from the Defunct to whom both Parties pretended to be Heir but the Lords found the posterior clause in the Act of Parliament of all Actions whatsomever to extend to the Reduction of Retoures and to be general as to all Actions that may concern Heirs in prejudice of others And found it so much the rather to extend to Retoures that the next ensuing Act finds Retoures to be Deduced thereafter only to be Reduceable within twenty years and so finds the Reduction thereof to prescrive sooner than other Rights and therefore cannot be thought not to have meaned to reach bygone Retoures by the general Act. Creditors of James Masson Merchant Supplicants Nov. 30. 1665. JAmes Masson Merchant in Edinburgh having unexpectedly broke and fled his Creditors gave in Supplication to the Lords bearing that he had most deceitfully broken having the price of the Goods that he had sold meditatione fugae in his hand and that he either lurked in the Abbay or was to go out of the Countrey and therefore craved a Warrand to Messengers of Arms to secure his Goods and apprehend his Person wherever the same could be found until the matter were heard The Lords having considered the case that the occasion was very extraordinar and also the desire most were of the opinion that the Lords might grant the Desire which was done accordingly with a Recommendation to the Duke of Hamiltoun Keeper of the Kings House not to suffer him to lurk there but to expel him that he might be apprehended For albeit ordinarly the Lords grant not Caption or Warrant of Wairding the Person of the Kings free Leidge till he be Denunced Rebel Yet seing the Magistrates of Burghs and the Admiral grant Acts of Wairding against Parties until they find Caution to answer as Law-will The Lords who had eminently in themselves these Jurisdictions they might do the like in the like case but some thought that was a special priviledge not to be extended and this was of dangerous Example to secure persons unheard more proper for the Council as a case extraordinar then for the Session David Boyd contra Isobel Lauder and Iohn Tailzifer Eodem die DAvid Boyd pursues Iohn Tailzifer as Representing his Father on all the passive Titles and Isobel Lauder his Mother and Tutrix for her Interest and condescends upon his behaving as Heir by uplifting of the Mails and Duties of his Fathers Lands by his said Tutrix It was answered that he being a Pupil his Tutrix Intromission could not infer that passive Title against him as hath been frequently sustained these many years It was answered that was but since the Usurpation but before the Tutors Intromission did alwayes infer this Title and the Pupil could only pursue his Tutor for his damnage The Lords found the Pupil not lyable on this passive Title by his Tutors Intromission The Pursuer then insisted against the Tutrix for paying so far as she had intrometted It was answered that she was but called for her Interest to authorize her Pupil but not to pay neither could she be lyable to pay unless a Decreet had been first Established against the Pupil◠and then it had been Arrested in her hands and pursued to be made forthcoming And yet the Lords found the Tutrix hoc ordine lyable White contra Brown Eodem die JOhn White as having Right from Iames White his Fathe◠Charges Brown for 2000. merks who suspends on this Reason that this Translation being by a Father to a Son in his Family at least having no visible Estate to acquire it The Suspender cannot be prejudged as to the manner of Probation by the Fathers Oath by which he offered him to prove that the Father was Debitor in a greater Sum. It was answered that the Cedents Oath could not be taken in prejudice of the Assigney The Lords found that in this case the Reason was probable by the Cedent Oath Telzifer contra Geddes Decemb. 1. 1665. THe competition between Telzifer and Geddes mentioned the eleventh of November last being this day again called Debated and Reconsidered by the Lords at length The question being that Marjory Sandilands having granted a Bond to Samuel Veatch blank in the Creditors name Samuel filled up Marion Geddes Name therein whereupon she Registrat the Bond and Charged him in the mean time Telzifer as Veatches Creditor having Arrested all Sums in Marjory Sandilands hands adebted by her to Samuel Veatch and pursuing to make the same forthcoming she depones that the time of the Arrestment she was no wayes Debitor to Veatch but by a Bond blank in the Creditors Name and that she did not know whose Name was filled up in it But now Telzifer the Arrester compearing craves to be preferred because he had arrested the Sum as belonging to Samuel Veatch his Debitor before Samuel Veatch was Denuded by filling up Marion Geddes Name and intimating or showing the same to
because she is then in potestate viri sub ejus tutelà So that she is truely Wife after the Contract of Marriage becoming publick by Proclamation and it occurring as a doubt amongst the Lords whether the Reduction ought to be sustained at the instance of the Husband only in so far as concerned his interest jure mariti so that the Right might be valid against the Ladie if she survived The Lords sustained the Reason simply at the instance of both and found it null as to both as being done without her Husbands consent Sir Laurence Oliphant contra Sir James Drummond Ianuary 6. 1666. THE Lord Rollâ— his Liferent Escheat being Gifted in Anno 1658. to Walter Stewart He Assigned the Gift and his own Debt the Ground hereof and the General Declarator obtained thereupon to Sir Iames Drumâ—â—mond in Anno 1665. A second Donatar now insists for special Declarator wherein compearance is made for Sir Iames Drummond who craved preference upon his first Gift and on his General Declarator It was answered for the Second Donatar that the first Gift was simulat and null by the Act of Parliament 1592. In so far as the Donatar suffered the Rebel to continue in Possession untill this day and never attained Possession of any part of the Lands nor did any furder diligence but only the General Declarator in Anno 1658. So that the Rebel having now possest by the space of 6 or 7. Years The presumption contained in the Act of Parliament that upon the said Possession the Gift is simulat and null takes place It was answered that there is no definit time in the Act of Parliament by which the Rebels Possession shall presume simulation and in this caâ—e there was but few Anni utilesâ— in so far as the Gift being in Anno 1658. Declarator was obtained that same year and in Anno 1659. Judicatures ceased and began not again till 1661. The Lords found that the Donatar suffering the Rebell to possesse 4 or 5. Years was sufficient to infer the presumption of simulation by the said Act of Parliament and therefore preferred the second Donatar Inter Eosdem Ianuary â— AT pronouncing of the former Interlocutor the first Donatar furder alleadged that the Presumption of Simulation by suffering the Rebel to possesse could not take place in this case First because the Donatar himself was a lawful Creditor of the Rebells whereupon there is a stronger Presumption that the Gift was to his behoove for his own satisfaction And the Act of Parliament can be only meant of Donatars who have no Interest but their Gift and are not Creditors Secondly The Lands were Apprized and the Donatar knew he would be excluded by the Appryzers The Lords repelled the first alleadgeance and found the presumptio juris in the Act of Parliament was stronger then the contrair presumption that the Donatar was Creditor because it might be his purpose to apply the Gift to the Rebells behove and not to take that way having other wayes of payment competent and also repelled the second alleadgeance unlesse it were alleadged that the Apprizer had been in possession so that there had not been 3 or 4. Years in which the Rebel had possest and that if the Appryzing had attained Possession at that time it would have excluded the Donatar but seing it was offered to be proven that the Rebel possest for 3 or 4. Years which was contrair to the alleadgeance of the Apprizers possession of the hail They adhered to their former Interlocutor Elizabeth Broun contra John Scot. Eodem die THere being an Infeftment feu granted of the Lands of Inglistoun as Principal and of the Lands of Fingland in warrandice thereof long agoe and Infeftment taken of both Principal and Warrandice Lands in on Seasine Registrat in the Registers Seasines Since the Year 1617. Thereafter the Warrandice Lands were disponed to the Earl of Traquair and he being publickly Infeft gave a subaltern Infeftment to his Vassal who assigned Iohn Scot to the Mails and Duties who having Arrested insisted to make forthcoming And likewise Elizabeth Broun having after the eviction of the Principal Lands arrested the Rents of the Warrandice Lands insists to make the same furthcoming to her It was alleadged that the Original Infeftment whereupon the said Elizabeth Brouns right is founded is a base Infeftment and as to the Warrandice Lands never cled with Possession and the Earl of Traquairs Right whereon Iohn Scots Right is founded is a publick Infeftment holden of the King which is alwayes preferred to a base Infeftment without consideration whether the publick Infeftment has attained Possession or no or how long but much more in this case where the publick Infeftment has attained Possession not only by year and day but many years And therefore is directly in the Case of the Act of Parliament 1540. cap. 105. Preferring publick Infeftments to prior base Infeftments not cled with Possession It was answered that base Infeftments are of themselves valid and before the said Act of Parliament the first Infeftment made always the best Right whether it was holden of the Disponer or of his Superiour but that Act of Parliament is correctory of the Common-Law and Feudal Custom which by the Act it self appears then to have been constant and is only altered by the Statute upon the presumption of Fraud which is clear both by the Title against double Fraudful alienations and by the Narrative that diverse persons after they have given privat State and Seasine to their Bairns or Friends do thereafter give for Causes onerous Infeftment to other persons and therefore such onerous posterior Infeftments if they attain Possession year and day are preferred to the said privat Infeftments but in this Case there is no Presumption of Simulation 2dly By several Decisions alleadged and produced it is clear that the Lords did prefer base Infeftment of Annualrent to posterior publick Infeftments of Propertie which interveened before the next Term so that the Infeftment of Annualrent could not attain Possession but if base Infeftments without Possession were unvalid Rights The Lords could not have found so 3dly The Lords have allowed Indirect and Interpretative Possession to be sufficient not only in the Case when Liferents are reserved that thereby the Liferenters Possession is the Feears though he never possest himself but even when Liferents are not reserved but that the base Infeftment is thereby excluded from Possession so base Infeftments granted to wyfes are preferred to posterior publick Infeftments though the Wyfes do not nor cannot possesse during the Husbands Life yet the Husbands possession is counted the Wifes possession and if a Person Infeft by a base Infeftment should pursue for Mails or Duties or Removing and were excluded by a prior Liferent constitute by the Pursuers Authorâ— though not reserved in his Right that very Action would be sufficient to validat the base Infeftment without Possession 4thly Whatever might have been alleadged before the Act of Parliament 1617. For
first granted by the Abbot of Dumfermling and the Feu of the Land thereafter there is a Decreet in Anno 1610. pronounced by the Chancellor as Lord of the Regality decerning all the Feuars to pay the five and twenty Curn of all Grains that they brought to the Miln and a greater of that they Abstracted The Feuar of the Miln pursuing for Abstracted Multures and for instructing the Quota producing this Decreet It was alleadged for the Defenders that they offered them to prove that past memory of man at least 40. years bygone they have been constantly in use to pay five Bolls of Bear in satisfaction of all Multure and so can be lyable for no further they having prescribed their liberty from any further 2ly That no respect ought to be had to the Decreet in so far as it Decerns a greater quantity for the Corns Abstracted then for these grinded which is without all Reason especially seing this is but a Burn Miln and not sufficient for the Thirle 3ly They offer them to prove that the Miln was insufficient the years pursued for and no ways able to serve them and the rest of the Thirle as being but a Burn-miln dry in Summer and not having Water enough in Winter It was answered for the Pursuer to the first that they offered them to prove they were in Possession of the Multure Lybelled within these 40. years at least that any lesser Duty was accepted by a particular Paction for a time only To the second opponed the Decreet standing against which there has neither been Suspension nor Reduction nor any ground for the same for its like the coming to the Miln frees them from a greater quantity for abstraction And seing the Quota is but the five and twenty Curn far below the ordinar Thirle Multures it was very reasonable that the samine being abaited to a less quantity they should pay a greater if they came not As to the insufficiency of the Miln it was answered non Relevat unless it were through the default of the Pursuer or his Millers for they being astricted to a Burn Miln what defect is therein without the Pursuers fault cannot louse the Restriction The Lords found the Replys Relevant unless the Defenders condescended upon an insufficiency through the Pursuers fault Here occurred to the Lords whether the Feuars could by Possession prescrive their liberty as to a lesser Multure seing the Possession of a part of the Multure was sufficient to exclude Prescription as to the whole some thought if the Multure had been a certain Quota in the Infeftment of the Miln Possession also not of the hail would hindred Prescription of any part but if the Infeftment of the Miln was only with the Multures used and wont and that the speciality was but by a Decreet as the use and wont that in that case use and wont might change Others thought not but in respect the Pursuer insisted not on that Point but offered to prove Possession conform to the Decâ—eet within these 40. years The Lords decided not that Point Here also it was alleadged that by an Act of the Court of Dumfermling the Defender consenting at least present it was Enacted that such of the Defenders as could not be served might go to other Milns The Lords found this alleadgence only Relevant that it was by consent of the Pursuer or his Authors but left it to be the Defendersâ— after production to qualifie what way the consent was given but that his presence and silence was not enough The Collector of the Vaccand Stipends contra Parochioners of Mayboll and Girvane Feb. 10. 1666. THe Collector of the Vaccand Stipend having charged the Heretors of Mayboll and Girvane for the Stipend due by them the year 1663. They Suspend and produce the Ministers Discharges who served these years and alleadged they made payment bona fide before this Charge It was answered they were in mala fide by the Act of Parliament of the last Session of Parliament declaring the places of Ministers Entred since 1649. to be Vacant if they had not obtained Presentation and Collation conform to the Act. It was answered that the foresaid Act was not simple but conditional if they had not obtained Presentation and Collation and there was nothing oblieging the Parochioners to enquire whether they had done that which by the Law they were oblieged to do but seing there was no Charge against them by the Collector of the Vaccand Stipends and that the Patron or Ordinar did not present another but suffered the then Incumbents to preach all that year they were in bona fide to think that they might pay them for the time they Served It was answered there was a Decreet produced against the same Ministers for the year 1662. and therefore they could have no Right to the year 1663. The Lords found the Reason of Suspension Relevant and proven notwithstanding of the Answer because the Decreet was not against the Heretors and was but obtained in 1664. after they had made payment of the year 1663. The Minister of North-Leith contra Merchants of Edinburgh Eodem die THe Minister of North-leith having pursued some Merchants of Edinburgh Importers of Herring of dry Fish Killing and Ling at Leith and New-haven to pay twenty shilling of the Last of Herring and the twentieth part of the Killing and Ling. It being alleadged that such a burthen could not be allowable because the Teinds was taken where the Fish was taken 2ly That it could only reach the Parochioners of North-leith not the Merchants of Edinburgh And 3ly That they had frequently Traded free of such a Burden The Lords having ordained the Pursuer to adduce Evidences by Writ or Witnesses what Possession they had and the Defenders what liberty they had and having heard the Testimonies of the Witnesses with an old Decreet for the same particulars but not against the Merchants of Edinbâ—rgh nor for dry Fish they found 40. years Possession proven of the said Burthen and therefore Decerned The Laird of Wedderburn contra Wardlaw Feb. 13. 1666. WEdderburn pursues a Reduction of a Feu granted to Wardlaw ob non solutum canonem by vertue of a Clause irritant in the Infeftment The Defender offered to purge by payment at the Bar and alleadged several Decisions that it hath been so allowed It was answered that was only the case of a Reduction upon the Act of Parliament declaring Feus null for not payment of the Feu Dutie but where there is an express Clause irritant in an Infeftment that cannot be purgeable at the Bar else such Clauses should be useless seing without these de jure the Feu Duties behoved to be payed at the Bar or otherwise the Feu annulled The Lords found that there was a difference betwixt a Clause irritant and upon the Act of Parliament and so would not admit of purging at the Bar simply unless the Defender condescended upon a Reasonable Cause ad purgà ndam moram and
is preferable to the Rebels base Infeftment It was answered that the King or his Donatar needed no possession nor can be prejudged for want of Diligence The Lords found the Creditors alleadgeance relevant Iack contra Mowat Eodem die THE Lords found that Iack having obtained Decreet as Assigney by his Father it was relevant for the Debitor to alleadge and prove by the Assigneys Oath that the Assignation was without a cause onerous and by the Cedents Oath that the Debt was payed before Intimation Sir Henrie Hoom contra Sir Alexander Hoom. Iune 14. 1666. IN the Cause debated yesterday betwixt Sir Henrie Hoom and Sir Alexander Hoom. It was further alleadged for Sir Alexander Hoom that the Rebel had not only five years possession but was Infeft by an Infeftment holden of his Father which was cled with Possession before the Appryzers charge against the Superior in so far as the Infeftment bore a reservation of the Fathers Liferent and so the Fathers Possession was the Rebells Possession and was sufficient to validat the base Infeftment seing there could be no other Possession attained during his Fathers lifetime or at least there was reserved to the Father a yearly Rent and the Rebel gave his Father a Warrand in Writ to continue his Possession of such of the Lands for the same The Lords ordained the Donatar to condescend whether the Rebells Infeftment proceeded upon his Contract of Marriage And he declaring that it was by a distinct Right thereafter The Lords found the Possession of the Father not relevant it being betwixt Conjunct Persons privat and suspect For they thought if possession by such Reservation betwixt Father and Son were sufficient the Creditors would hardly be secure Dumbar contra Lord Duffus Eodem die THE Lord Duffus having obtained a Decreet of removing against Dumbar his Tennent and having execute the same by Letters of Possession The Tennents raises Suspension and Reduction of the Decreet and a Summons of Ejection the Reason of Reduction was that the Sheriff had done wrong in repelling and not expressing in the Decreet a relevant Defense 2dly That the Tennent could not be decerned to remove because he was already removed irregularly by Ejection and ought not to be put to defend in the removing till he were repossest spoliatus ante omnia est restituendus which he instructed by an Instrument taken in the hand of the Clerk of Court and where it was replyed before the Sheriff that he had not found Caution for the violent Profits He answered that he needed not seing the Pursuer himself was in possession by the Ejection It was answered that the Lord Duffus offered him to prove that all he did was to put in some Corns and Plenishing in an ouâ— house long after the warning of the Tennent that had taken the Roum and that he continued to possesse all the rest of the house and the whole Land by his Cattel till he was Legally removed and neither the Family nor Goods of the new Tennent came in till then It was answered that the alleadgeance was contrair to the Tennents Lybel of Ejection bearing that he was dispossest both from the house and Lands The Lords considering that the Tennents was only positive in Ejection from the House and had once acknowledged that he was not Ejected from the Land they Assoâ—lzed from the Reduction of the Decreet of Removing but they sustained the Action of Ejection and Repelled the Defenses as contrair to the Lybell Reserving to themselves the modification of the violent profits and the other party to debate whether after the Decreet of Removing the Tennent should have re-possession or only the profits or damnages George Tailzor contra Iames Kniter Junâ— 15. 1666. GEorge Tailzor having Appryzed some Lands in Perth set a Tack of a part of it to Iames Kniter who thereafter Appryzed the same Tailzor now pursues a Removing against Kniter who alleadged absolvitor because he had Appryzed the Tenement within year and day of the Pursuer and so had Conjunct Right with him It was answered that he could not invert his Masters Possession having taken Tack from him The Defender answered it was no inversion seing the Pursuer by Act of Parliament had Right to a part but not to the whole and the Defender did not take Assignation to any new Debt but to an old Debt due to his Father The Lords sustained the Defense he offering the expenses of the Composition and Appryzing to the first Appryzer conform to the Act of Parliament Alexander Stevinson contra Laird of Hermishills Eodem die ALexander Stevinson as Assigney by his Father pursues Hermishills for payment of a Bond who alleadged absolvitor because the Defender as Heir to his Father had right to a Bond due by the Pursuers Father before the Assignation after which the Assignation was a Deed infraudem Creditorum and so null It was answered non relevat unless the Cedent had been Bankrupt or at least insolvendâ— The Lords Repelled the Defense in respect of the Answer The Defender furder alleadged Compensation upon the said Bond which was relevantâ— against the Pursuer both as Heir to and as Assigney by his Father It was answered non relevat against the Pursuer as Executor but for his fourth part being one of four Executors 2dly The Defenders Father was Tutor to the Pursuer nondum reddidit rationes The Lords found that Compensation being equivalent to a discharge taking away the Debt ipso facto it might be proponed against any of the Executors in solidum but in regard the Tutors accompts were depending the Lords sisted his Process till he Tutors Compts proceeded Sir Robert Sinclar contra Laird of Houstoun Eodem die SIr Robert Sinclar pursues a Poynding of the Ground of the Lands of Leni upon an old Annualrent of 20. merks Constitute above a 100. years agoe Houstoun alleadged absolvitor First Because he brooked these Lands past Prescription peaceably without any pursuit upon this Annualrent 2dly Because this Annualrent was base and never yet cled with Possession and his Infeftment was publick It was answered to both that the Pursuer produced a Decreet of Poynding the Ground in Anno 1608. Since which the Pursuers Minority being deduced it is not 40. years Likeas there is produced a Precept of Poynding for the said Annualrent It was answered that the Decreet in Anno 1608. was only against the Tennents and Possessors and so is null the â—eretor not being called It was answered First That albeit the Decreet had been defective for not calling the Master yet it was sufficient to interrupt Prescription 2dly It was sufficient to give possession and to validat a base Infeftment by a civil possession for as natural possession by the Tennents payment would have been sufficient though without their Masters knowledge or consent So a Decreet yea a citation against them is sufficient for a possession as being equivalent to a natural possession and albeit the Proprietar could not be
of Parliament and stented the same upon the Parochioners and others They did Supplicat the Lords for Letters of Horning conform to the stent Roll in respect that the said late Act of Parliament being the twentieth Act of the third Session of the last Parliament bears no warrand for Horning The Lords ordained Letters of Horning to be past Sir Alexander Vrquhart contra Sherem Eodem die IN anno 1636 Sir Thomas Vrquhart of Cromerty gave a Security of a House and some Lands and a Salmond-fishing near Bamff for 4000 merks and in anno 1637 There was 700 merks eiked and a Back-bond relating to the first Wodset Renounced and a full Possession granted on both There is a Clause of Redemption and Requisition upon payment of the principal Sums and Annualrents resting for the time Sir Alexander Vrquhart pursues Sherem as now having Right to the Wodset for Compt and Reckoning Who alleadged Absolvitor because this being a proper Wodset wherein he had the full Possession hazard of the Profits was not comptable especially seing the chief part of the Wodset was a Fishing which was most uncertain and though de facto he happened to get much more then his Annualrent yet it is no Usurary Wodset seing he might have losed all The Pursuer Replyed that by the saids Clauses of Redemption and Requisition he was not only obliged for the principal Sums but for the bygone Annualrents resting unpayed so that the Wodsetter had no hazard and therefore it is no proper Wodset and he is comptable The Defender answered that the Clause was only adjected ex stylo for it did not bear that what Annualrent should be resting over and above Intromission should be Consigned but the whole resting Annualrents or at least it had been adjected in respect of the Back-bond restricting the first Wodset or in case the Wodsetter had been excluded from Possession The Lords found the Defender comptable in respect of the saids Clauses but there occurred to themselves this question whether the Superplus more then the Annualrent should compense and abate the principal Sum at the time of the Intromission or only now whereanent the Lords were of different opinions many thought that when the meaning of the Parties was not full and express that should be followed which is most ordinar amongst provident Persâ—ns hardly could it be thought that any would take a Wodset upon these Terms to draw out the principal Sum with excress yearly but the Lords reserved that Point to be considered while it appeared whether there was any excress above the Annualrent Monteith contra Laird of Gloret Dec 7 1666 IN a Competition between Monteith and the Laird of Gloret It was alleadged for Monteith that he ought to be preferred to the Sums in question because Glorets Assignation was obtained by Hamiltoun of Kinglass and was lying by him blank in the Assigneys name and by him filled up with Glorets Name and delivered to him so that Kinglass being his true Author any Discharge granted by him while the Bonds were blank and in his power was relevant against Gloret his Assigney Ita est Kinglass while or before the Bonds were in his power did equivalent to a Discharge viz. oblieged himself to pay this Sum and relieve the principal Debitor thereof and instead of the Discharge he took this blank Assignation filled up by him in Glorets Name 2ly The Charge though in Glorets Name is to Kinglass's behove and if he were Charging his Obliegment to pay the Debt would exclude him And therefore must exclude the Charger It was answered that Gloret was in bona fide to take this Assignation knowing nothing of the Back-bond and that an Obliegment to satisfie the Debt was not equivalent to a Discharge Neither is the having of the Assignation though blank equivalent to an Assignation unless the Name of Kinglassie had been filled up and Intimat The Lords having taken Glorets Oath before Answer wherein he acknowledged that he got this Assignation from Kinglassy and payed no money for it and that it was on these Terms Kinglassie being owing him a greater Sum he was to allow what he got by this Assignation in part thereof but Deponed he knew not if it was blank when Kinglasse had it or not The Lords found that the Assignation being accepted by Gloret in Terms aforesaid that it was but a Corroborative Security and so found the Assignation to Kinglassies behove and found the Back-bond Relevant to exclude him and therefore preferred Monteith Sir George Mckenzie contra Fairholm Eodem die SIr George Mckenzie Advocat pursues a Reduction of a Bond granted by him as Cautioner for his Father the Bond is now Assigned to Iohn Fairholm on these Reasons First That the Bond is null as being done by a Minor being in his Fathers Family and not being Authorized by his Father as lawful Administrator And therefore in the same condition as a Minor having Curators they not Confirming such Deeds are null and may be Reduced at any time though they have not been quarrelled within the Minors Age of twenty five 2ly Because Curators being chosen as a Security to the Levity of Minors they cannot Authorise the Minor to the Curators behove but such Deeds are null So neither could the Pursuers Father Authorize him to be Cautioner for himself The Defender answered First That albeit a Father as lawful Administrator and Tutor to his Children excludes all other Tutors yet he is not Curator after their Pupillarity because they may choose other Curators and that filij familias in the Civil Law could not Contract without their Fathers consent It was a special Statute per Senatus consultum Macedonianum and not as Curator 2ly The Father cannot be lyable for his Omissions by his unprofitable Authorizing his Children for such Actions would be contra pietatem obsequium 3ly There is nothing more frequent in Scotland then Sons to have a distinct Estate while in their Fathers Families given by the Father or otherwise whereof they have the full Administration without Authority 4ly Whatever may be alleadged for Children residing in the Family of their Father yet that cannot be extended to Children Acting by themselves far from their Fathers Family but the Pursuer was so living and Acting at Edinburgh attending the Tolbooth and was majori aeâ—ati proximus being past 20. The Pursuer answered that his Reason stood still Relevant because by the Law of Scotland a Father is lawful Administrator to his Children and is not ordinarly designed lawful Tutor but lawful Administrator which does not only endure during their Pupillarity but during their Minority but at least till they be Married or Forisfamiliat or till they have a distinct Subsistence or Calling And albeit the Children be not Residing in the Family yet they are in familia so long as they are there and not separat from the same as the Pursuer was and albeit the Son may choose other Curators if the Father permit or the Judge think
old Rescinded Act pro tanâ—o it must be in the same case as Taxation and Maintenance which is ever accounted debitum fundi It was answered that these burdens Imposed by the Rescinded Parliaments are not in the same case with other publick Burdens especially where it is but a particular Act relating to particular persons and Shires without Citation of them for if they had known of this Act they would have petitioned the Parliament that singular Successors might have been excepted as they were in other Acts of this nature The Lords Suspended the Decreet and found that as they were singular Successors they were not lyable David Dick contra Ker. Iune 26. 1668. DAvid Dick as Donator to the Escheat of Ker insists in a special Declarator for payment of a sum due to the Rebel The Defender alleadged Absolvitor because it being a Bond bearing Annualrent it fell not under the single Escheat It was Replyed that Bonds bearing Annualrent are still holden moveable until the first Term of payment of Annualrent and is Disposeable by Testament if the Defunct die before that Term but here the Rebellion was before the date of the Bond and so the sum fell to the Fisk the day it was Subscribed It was answered that the 32. Act Parliament 1661. declares Bonds bearing Annualrent to exclude the Fisk without any exception or limitation The Lords having considered the Act found that it left Bonds bearing Annualrent in the same case that they were formerly and found that before the Term of payment of Annualrent they were moveable Peterson contra Captain Anderson Iune 30. 1668. CAptain Anderson having taken a Ship whereof Peter Peterson was Master and obtained the same declared Prize by the Admiral upon two grounds one that the Ship was sailed a great part of the company being Hollanders then the Kings enemies The other that albeit it was pretended that the Ship belonged to Swedes yet by several presumptions and evidences it appeared that is was but a conveyance and that the Ship truely belonged to Hollanders There is now a Reduction raised of the Decreet and the first ground thereupon Debated and Decided It was alleadged for the Strangers that they being Swedes their case was only to be ruled by the Treaty betwixt the King and the Crown of Sweden by which it is expresly provided that the Subjects of Sweden having such Passes as are exprest in the Articles shall not be Seased or brought up and particularly in bona homines nullo modo inquirâ—tur viz. Where such a Pass is found aboard and the said Pass being here found aboard the Ship was unwarrantably Seased and unwarrantably declared Prize upon pretence of being sailed with Hollanders because that Article takes away all question about the men and so gives liberty to the Swedes to make use of any Mariners they please It was answered that the Reason of Adjudication was most just and this Reason of Reduction ought to be repelled because the Kings Proclamation denuncing the War gives express warrand to sease all such Ships as had any number of Hollanders therein which must stand as the Rule unless the Swedes had by their Treaty a particular exception derogating from that Rule which they have not but on the contrary the Treaty contains an express provision that they may make use of a Hollands Master and not unless he became a Citizen of some City of Sweden and be sworn Burgess thereof but upon the former ground there needed no such Article for Masters and all might thereby be Hollanders And as to the Article of the Treaty concerning no further inquiry there is subjoyned quod si gravis aliqua suspitio subsit in which case notwithstanding of the Pass Seasure might be made but here there was gravis suspitio that the Ship or Goods belonged to the Hollanders the Master and major part of the Company being Hollanders and the Pass mentioning a Ship of an hundred Tuns whereas this Ship was two hundreth Tuns It was answered for the Strangers that the Kings Proclamation could be no Rule to the Subjects of any other free Prince but the Law of Nations or their own Treaties behoved to be the Rule and by the Law of Nations the King could not hinder his Allies of any Commerce or Trade with His Enemies which they were accustomed or free to do before the War except such Acts only wherein they partaked with his Enemies by furnishing provisions of War or Counterband Goods and so the King by no Proclamation could hinder the Swedes to hire and make use of Hollanders which rather weakned then strengthned his Enemies and in this case the making use of Hollanders was necessar because other Sailers could not be had when the Ship was bought and that Article of the Proclamation ought to be benignly interpret that when any Ship carries Hollenders as Passengers the same should be Seased but not when these were Servants and Mariners to other Nations It was answered for the Captain that the Kings Proclamation of the War behoved to be a Rule to the Kings Judges and that it was most consonant to the Law of Nations and it was impossible without the same to know what Ships did truly belong to Allies and that in the Spanish Treaty with the King that priviledge was specially indulged to the Flandrians not to be quarrelled upon the account of Hollanders because of the Identity of their Language which would have been unnecessar if by the Law of Nations all might have so done The Lords Repelled the Reason of the Reduction and found that ground of the Adjudication that the Ship was Sailed with a great part of the Company being Hollanders Relevant alone and that the same was sufficiently proven by the Testimony of the Steirsman and another Witness of the Company and therefore Assoilzied from the Reduction The Minister of Elgin contra his Parochioners Eodem die THE Minister of Elgin pursues his Parochioners for the Viccarage of some Yeards in Elgin which belonged of old to the Canons of the Cathedral Kirk of Elgin and were by them Feued to the Defenders who alleadged Absolvitor because the Yeards being a part of the Canons Portions and in effect their Gleibs had in no time past ever payed Viccarage which is consuetudinar and local both as to the payment and the kinds for in some places Teind Lint and Hens are payed and in others not but the ordinar Viccarage being Stirks Wool Milk and Lamb there is none of these to be had in these Yeards It was answered that no Prescription could take away Teinds upon the forbearance of demanding it by Beneficed Persons who are but Administrators and cannot Delapidat otherwise all Benefices might be destroyed 2ly Lands that have been always Ploughed and so payed Parsonage and becoming Grass are lyable to Viccarage albeit it cannot be proven that ever they payed any before The Lords found the Defense Relevant unless the Pursuer could prove that Viccarage has been payed out of these
majore and that they had not failed in their duty having had a sufficient Tolbooth having four Doors and the inmost an Iron Door and that all being Locked the Person Incarcerat having gotten secretly conveyed in some Mason or Wrights Tools had in the night broken all the Locks and escaped It was answered that the Defense was not Relevant neither had the Magistrats done their duty and diligence for they ought to have had Chains and Cat-bands upon the utter-sides of the Doors with Locks thereon unto which the Incarcerat Person could not reach and it was alike how many Doors they had upon the Tolbooth with their Locks inward for the same means that would break up one would break up twenty and if such a pretence should liberat the Magistrats it were an easie way to elide all Captions and let all Persons for Debt free It was answered for the Town that the having of Cat-bands without Closed and Locked was not the custom of their Tolbooth who past all memory did never Lock the outward Chains but upon Malefactors and such is the custom of Edinburgh and other Burghs of Scotland The Lords having before answer ordained Witnesses to be Examined on both parts anent the condition of the Tolbooth and finding thereby that there was no Cat-bands or outward Chains Locked when this Prisoner escaped they found the Magistrats had not done their duty and so Decerned against them Alexander Naper contra The Earl of Eglintoun Feb. 14. 1671. THere was a Bond granted by the Laird of Minto as principal Lugtoun Iames Creichtoun and the Earl of Eglintoun Cautioners in Anno 1641. to Adam Naper and his Spouse in Conjunct Fee Alexander Naper as Heir to his Father pursues this Earl of Eglintoun as Heir to his Father for payment who alleadged Absolvitor because Minto having Disponed his Estate to his Son under express Provision to pay the Debt the same was satisfied by Minto younger and was retired lying by him a long time or by Robert Vrie who had the Trust of Minto's Affairs and Writs and Minto younger being lapsus bonis and Robert Vrie being dead the Pursuer had either practised with Minto upon his necessity or upon Robert Vries Friends to give him back the Bond and for evidence that the Bond has been satisfied and retired First It had lyen dormant above this thirty years without either payment of Annualrent or any Diligence 2dly The late Earl of Eglintoun being Forefault by the Usurpers his Creditors were appointed to give in their Claims or else to be excluded and yet no Claim was given in for this Debt and therefore craved that Witnesses might be Examined ex â—fficio for proving of the points foresaid The Pursuer answered that it was an uncontroverted principle in our Law that Witnesses could not prove payment of any Debt due by writ nor take the same away and as to the pretences adduced by the Defender they import nothing for the delay of seeking payment or Claiming the Sum was because the said Adam Naper was with Montrose in the War and his Heir remained a Minor and his Wife was Married to another Husband The Defender answered that the Wife was Liferenter of the Sum and she and her second Husband would certainly have sought her Annualrent or Claimed the Sum which takes off the excuse of the Pursuers Minority and albeit Writ be not taken away by Witnesses ordinarly yet where the matter is so ancient and the Evidences so pregnant the Lords uses not to refuse to Examine Witnesses ex officio The Lords ex officio ordained Witnesses to be Examined anent the being of the Bond in the Custody of Minto or his Doers being a matter of Fact but would not Examine them anent the payment made thereof George Bain contra The Bailzies of Culrosse Eodem die GEorge Bain pursues the Bailzies of Culrosse for payment of the Debt of a Rebel whom they had suffered to go free up and down their Streets whereupon he had taken Instruments against them and protested that they should be lyable for the Debt seing squalor carceris is justly introduced against Debitors that will not pay their Debt and the Magistrats of Burghs may not take it off in whole or in part and produced a Practique observed by Durie upon the 27. of March 1623. Smith against the Bailzies of Elgine where the Prisoner being suffered to walk freely upon the Streets till he obtained a Charge to set to Liberty the Magistrates were found lyable The Defender alleadged Absolvitor because he offers to prove that this Prisoner's going out was necessary viz. He being a Person altogether Indigent was permitted sometimes to go and mendicat his Bread and once to go to the Burial of a Child of his own and immediatly thereafter the Pursuers having taken Instruments the Rebel was put in Waird and continued there till he Died. Which the Lords found Relevant to Liberat the Burgh Apilgirth contra Locarbie Eodem die IN a Compt and Reckoning at the instance of Apilgirth for declaring two Apprizings Led by Lockerbie satisfied this Query was moved by the Auditor whether a Sum Consigned by umquhile Apilgirth for Redeeming a part of the Lands Wodset to Lockerbie conform to the Reversion in the Wodset might be proven to be uplifted by Apilgirth from the Consignator by the Oath of the Consignator and of the Clerk of the Process who Received the Money or only by Writ Apilgirth the Consignator being Dead The Lords considering that it was ordinar to take up Sums Consigned for Redemption of Wodsets being upon the peril of the Consigner did appoint the Oath of the Consignator and Clerk to be taken for proving that the Money was taken up by Apilgirth from the Consignator and that Apilgirth and not the Consignator put it in the Clerks hands and that the Clerk gave it up again to Apilgirth The Earl of Argile contra The Laird of Mcnaughtan Feb. 15. 1671. THe Earl of Argile pursues the Laird of Mcnaughtan to Remove from the Lands of Benbowie as being a part of the Earls Barony of Loâ—how The Defender alleadged Absolvitor because he prâ—duces a Seising dated in Anno 1527. proceeding upon a Precept of clare constat from the Earl of Argile in favours of Alexander Mcnaughtan as Heir to Giller Mcnaughtan of the four Merk Land of Benbowie by vertue whereof the said Alexander and his Successors to this day have Possessed and so have a sufficient Defense upon prescription by the Act of Parliament 1617. anent prescription The Pursuer answered that the Defense is not Relevant as it is founded upon the naked Seising only because by the said Act of Parliament there is required to all prescriptions of Land a Title in Writ preceeding the 40. years Possession which Title is dâ—stinguished in two cases First In relation to Rights acquired titulo singlari whereunto is required not only a Seising but a Charter which although they may be excluded by an anterior or better Right yet
to be ignorant of the Terms of her Infeftment November 14. 1665. Skeen and her Spouse contra Ramsay Homologation of an Infeftment bearing in satisfaction c. was sound not to be inferred by possessing the Lands seing the Possessor had another Title as Heir apparent to persons who dyed Infeft therein unless it were instructed that the possession was attained by Processe upon the Infeftment in satisfaction December 12. 1665. Barns contra Young and her Spouse Homologation of a Feuars Right and passing from a Declarator against the same upon a clause irritant was found not to be inferred by acceptance of two years Feu-duties after the Declarator except as to these two years that more duty could not be demanded therefore Iune 6. 1666 Earl of Cassils contra Agnew Homologation of a Bond granted by a Minor without consent of his Father as lawful Administrator was found not inferred by payment of Annualrent by him after his Majority especially not being of his own Money nor by taking a Discharge of the Annualrent to the Principal and himself as Cautioner February 14. 1668. Mckenzie contra Fairholm Here the Discharge related the Bond both as to Principal and Cautioner Homologation of a Minors Bond was not inferred by pursuing for his relief after his Majority but that in case he were not liberate by that mean he might return to his Reduction upon Minority February 20. 1668. Farquhar of Toâ—ley contra Gordoun Homologation of a Tack of Teinds which was null as wanting the consent of the Patron was not found inferred by the Ministers receiving the duty conform to the Tack before Reduction thereof February 27. 1668. Chalmers contra Wood of Balbegno Homologation of a Decreet was not inferred by giving Bond of borrowed Money for the like sum and taking a Discharge of the Decreet seing it was no voluntary deed but the Debitor was then under Caption in the Messengers hands upon the Decreet neither a Transaction if the Bond contained all the sum in the Decreet unless abatement had been gotten Iuly 3. 1668. Row contra Hoâ—stoun Homologation was not inferred by a Husbands Discharge of Annualrent as Tutor to his Wifes Child to infer the Child had right to the Annualrent whereas by the Bond it self the Wife was Liferenter Ianuary 18. 1670. Doctor Balfour and his Spouse contra Wood. Homologation of a Decreet of consent containing a Transaction of parties at the Bar without any Subscription was inferred by a simple offer of a Disposition conform to the said Transaction be that party who quarrelled the Decreet as without Warrand but was not inferred by consignation of the Disposition for obtaining a Suspension upon obedience to be delivered up if the Lords saw cause February 4. 1671. Lowrie contra Gibson Homologation of a Contract of a Minor having Curators without their consent was not inferred by payment of a years Annualrent of the sum contained in the Contract being made â—o an indigent Sister who had no other provision but homologation was inferred by a Decreet of Registration of the Contract at the instance of the Party none quarrelling the same after his Majority though there was neither Charge nor Execution used thereon and in the Decreet of Registration there was neither Protestation nor Reservation that the same might be quarrelled in any point Iune 2â— 1671 Hume contra Lord Iustice Clerk Homologation of a Testament subscribed by a Wife at the desire of her Husband near his death was not inâ—erred by her Confirming the Testament under Protestation not to prejudge her own Right though she might have attained her interest in the Moveables by Confirming her self Executrix Creditrix Iuly 12. 1671. Murray contra Murray HORNING granted Summarly upon the late Iudges Act at the instance of heirs or Executors confirmed was found to be â—ull upon the late Act of Parliament declaring their ludiâ—â—â—â— proceedings to be quarrellable seing thereâ— was no â—â—justice in the matter but the Lords gave the Suspenders such time for their Defenses as in an ordinary Action Ianuary 1. 1662. Barnes contra Laird of Applegirth Horning doth not affect the Rebels Moveables by the Act 1592 but that the Rebel may effectually deliver them to one who had Disposition of them before the horning Iuly 9. 1662. Bower contra Barclay and Iohnstoun Horning was not found null by payment before denunciation to be proven by the Creditors Oath or holograph Discharges but by the Denuncers Oath of Verity February 10. 1663. Montgomery contra Montgomery and Lawder Horning granted against the Magisâ—rates of a Town upon the Act of their Council obliging to pay a Debt upon a Bill without Signet though there was no Process whereon the Act proceeded or Clause of Registration therein February 19. 1663. Lady Swintoun contra Magistrates oâ— Edinburgh Horning was sustained though on a Charge of six dayes beyond Dee contrary to the Act of Parliament 1580. â—n respecâ— it proceeded on consent of parties upon a clause of Registration and since that Act such hornings had never been quarrelled December 16. 1664. Laird of Phillorth contra Forbâ—s of Asâ—oun and the Lord Frazer A HVSBAND was found lyable to his Wifes debt though not established against him during the Marriage in so far as might be extended to the benefite of her Lifâ—rent Duty resting after the Marriage dissolved which could not belong to the Husband but with the burden of her debt February 1. 1662. Cunninghame contra Dalmahoy A Husband was found lyable for his interest in Moveables intrometted with by his Wife of her first Husbands albeit there was an interveening Husband who was not found to be first discust but reserving to the Defender to pursue his heirs as accords February 18. 1663. Dumbar or Hemprigs contra Lord Frazer Vide interdiction February 27. 1663. Laird of Milntoun contra Lady Milntoun A Husband was assoilzied from his Wifes debt albeit Litiscontestation was past seing she was dead and albeit there was an Interlocutor ordaining him to give Bond to pay what his Lady should be found due Iuly 11. 1664. Inter eosdem A Husband being pursued to remove from a Tenement which he possessed jure marâ—ti no Process was sustained till the Wife was cited Iuly 14. 1665. Iohnstoun of Sheeâ—s contra Brown A Husband Confirming his Wifes Testament by giving up his own Moveables and Debt though he made Faith upon the Inventary yet was not excluded from debarring the Wifes Legatars upon another debt then forgotten though not old December 7. 1665. Anderson contra Cunninghame But he being lately charged on a debt before the confirmation it was not allowed as forgotten Iune 5. 1666. Inter eosdem A Husbane was not found lyable for his Wifes debt jure Mariti after her death though in her life there was Decreet against her and him as Husband seing there was no Execution thereon in her life December 23. 1665. Dam Rachel Burnet contra Lepers A Husband and Wife were not found lyable as lucrative Successors for a competent Tocher
confusion the last day of the Session February 21. 1663. THE Lords of Council and Session considering how necessary it is for the advancement and honour of His Majesties service that the Judicatories intrusted in him in the principal administration of Justice to His People be attended in all their meetings with due Decencie and Respect from all His good Subjects And that the rude disorderly and barbarous carriage of some Servants attending the Colledge of Justice and others joyning with them upon the last day of the Session is dishonourable to the Authority of the Court unsuitable to the gravity becoming the Persons relating thereto and un-beseeming the civility fit for such a place have therefore thought fit to discharge and hereby discharges all Servants of any Advocats Clerks Writers or other members of the Colledge of Justice and all other Persons whatsoever That none presume upon the last day of the Session to throw or cast any pocks dust sand or stones or to make any disorder or to use any rude or uncivil carriage within the Session House or in the Parliament Closs Certifying all such who being Servants to any Members or relating to the House shall in any degree offend herein they shall suffer three moneths imprisonment and for ever thereafter be debarred the House and service thereof And if they shall happen to escape the time of the committing the offence That their Masters shall be oblidged to enter them in prison in the Tolbooth of Edinburgh within eight days thereafter under the pain of two hundred merks Scots and ceritfying all such Persons who not relating to the House as said is shall offer to offend in manner foresaid They shall be apprehended and committed to waird for the space of three moneths and thereafter banished the Town And that none pretend ignorance ordains these presents to be printed and affixed upon the most patent doors of the Session House and to be insert in the Books of Sederunt therein to remain ad futuram rei memoriam ACT in favours of the keeper of the Minut Book Iune 6. 1663. THE which day the Lords taking to their consideration an overture formerly presented to them be the Advocats in favours of Iohn Scot keeper of the Minut Book shewing that the allowance appointed to him for inrolling of Causes by the Act of Sederunt dated the 28. of February 1662. is very inconsiderable being only two shilling scots for every Process and no ways answerable to his pains and attendance thereupon In respect whereof and for the said Iohn Scot his further incouragement to continue that faithfulnesse and integrity whereof he hath hitherto given proof in discharging the said trust The Lords ordain in time coming the Parties at whose desires any Process shall be inrolled or his Agent to pay to the said Iohn Scot for every Cause that shall be inrolled be him four shilling Scots money allanerly And ordains these presents to be publickly intimate and an Act to be extended thereupon ACT concerning the buying of the Citiedeal September 8. 1663. THE Lord President having produced before the Lords a proposition made by the Town Council of Edinburgh and subscribed by Sir Andrew Ramsay Provost of the said Burgh bearing as follows viz. The Lord Provost having reported to the Committee That the Citiedeal of Leith being of late erected in a Burgh of Regality which without doubt may in time prove prejudicial to this City for many undenyable reasons And that the Honourable Lord the Earl of Lauderdail to whom His Majesty hath granted the Right of the said Citiedeal had done the honour and favour to the Council of Edinburgh as to make them an offer thereof upon reasonable terms And that they are come that length in their Treaty as that it may be had for 6000 lib. Sterling payable in four years which the Magistrats are not at all in capacity to raise or make payment of without the two third parts thereof be raised out of the Chamber of Imposition which the Council thought not fit to do without the consent of the Grand Committee of the said Imposition And therefore desired the advice of the Lord President and all others the Members of the Committee To which report and proposition the said Lord President Sir Iohn Nisbet Mr. Iohn Ellies and Robert Hay made answer That they found His Majestie 's gift so strick as they could not of themselves without consent of the whole Colledge of Justice give consent That any of the said moyeties should be imployed otherwise then to the payment of debts contracted before September 1650. Therefore the Committee thought expedient That the President Sir Iohn Nisbet Mr. Iohn Ellies and Robert Hay might advise concerning that scruple and with all conveniency report that so necessary a bargain might be brought to some conclusion The saids Lords having considered the above-written proposition in one voice do consent and give advice that the two third parts of the pryce of the Citie-deal be raised forth of the Chamber of Imposition The Seall of Court November 26. 1663. MR. Alexander Gibson produced in presence of the Lords their common Seal wherewith Commissions and other Papers which went out of the Countrey use to be Sealled which Seal the Lords ordain to be made use of in time coming And ordained the said Mr. Alexander to make the same forth-coming to the saids Lords when ever it should be required And ordains him to give the use of the said Seal to the remanent Clerks when they have to do therewith ACT against general Letters Iune 8. 1665. THE Lords considering the manyfold inconveniences arising of late from the frequent use of directing General Letters and Charges Summarly and that the same is contrary to the ancient custom whereby they were only raised upon Decreets conform Therefore the Lords do hereby revive and renew that ancient custom And Enact and ordain that in time coming no Charges nor Letters of Horning shall be direct Generally against all and sundrie except allanerly upon Decreets conform purchast and obtained be the Parties raisers of the saids Letters And prohibit and discharge the Writers to the Signet and the Clerks to the Bills to writ present or passe any Bills for General Letters and the keeper of the signet to affix the signet to any such General Letters unless the same be direct upon Decreets conform as said is Likeas the Lords declare any such General Letters that shall be raised in time coming where Decreets conform have not proceeded with all execution following thereupon to be void and null and have no affect But prejudice always of any General Letters or Charges raised or to be raised at the instance of His Majesty's Thesaurer Thesaurer Depute or others impowered for His Majesti's Rents Customs Casualities or other dues belonging to the KING'S Majesty according as they have been in use to do And also excepting any General Letters raised or to be raised at the instance of the Lords of Session for the
contribution money payable to them And such other General Letters as are expresly warranted be the Acts of Parliament And ordains an Act to be extracted hereupon and insert in the Books of Sederunt ACT for keeping the Barrs Iune 22. 1665. THE Lords considering what great confusion and disorder is occasioned by the thronging of people of all sorts within the Barrs of the Inner and utter House in the morning before the Lords sit down and at twelve a clocke in the forenoon and the prejudice arising there through by the miscarrying of Processes For remeid whereof the Lords do hereby discharge the Macers in time coming to give access to whatsomever Persons of whatsoever quality within the Barr of the Inner-house after any of the saids Lords have entred the House in the morning or after twelve a clock till the Lords be all risen off the Bench and be removed out of the House And sicklike that they permit no person whatsoever to stay within the Innermost-barr of the Utter-house where the ordinary Lord and Clerks do abide neither before the ordinary Lord come out after that the Clerks and their Servants have begun to call nor during the time that the ordinary Lord is upon the Bench neither after untill the reading of the Minut Book be ended except the persons following viz. The keeper of the Minut Book the King's Solliciter and one Servant appointed by His Majestie 's Advocat And that person appointed for reading the Minut Book during the time of the reading of the Minut Book and no longer And the Macers are hereby authorized to carrie immediately to prison any person that shal be found within any of the saids Barrs during the time foresaidâ— Certifying the saids Macers that if any of them shal be found negligent in performance of their dutie in the premisses They shall forthwith be removed from their Office And ordains an Act to be extended hereupon ACT anent Pro-tutors Iune 10. 1665. FOrasmuch as in the Action of compt and reckoning depending at the instance of Robert and Bessie Swintouns against Iames Notman at length heard before the Lords of Council and Session It being questioned and debated how far a Pro-tutor is lyable by the Law and Practice of this Kingdom whether for ommission as well as for commission and intromission And the saids Lords considering That albeit Pro-tutors be excusable as to their bygon intromissions In regard it was not constant hitherto how far they could be lyable yet finding it expedient that the foresaid question should be determined as to the future and the Leiges no longer left in uncertainty thereanent Therefore the Lords declare that whatsoever person or persons shall in time coming intromet with the means and estate of any Minor and shall act in his affairs as Pro-tutors having no right of Tutory nor Curatorie established in their Persons They shall be lyable aswell for what they might have intrometted with if they had been Tutors and Curators as for what they shall intromet with de facto Sicklike and in the same manner as Tutors and Curators are lyable by the Law and Practice of this Kingdom And the Lords declare that they will observe this as an inviolable practice in time coming And ordain these presents to be published at the Mercat Cross of Edinburgh and an Act to be extended thereupon and insert in the Books of Sederunt ACT ordering no sight of Processes in the Summer Session which were seen in the Winter before November 8. 1665. THE Lords considering That through the shortness of the Summer Session unnecessary giving out and malicious detaining of Processes which have been seen the Winter Session immediately preceeding The Leiges are oftimes frustrate of Justice during that Session after much charges expenses time vexation and trouble And having it always in their thought how Justice may be speedily administrat with the greatest ease and least expenses to the Subjects Do declare that in the future they will not allow Defenders and their Procurators to see Processes in communi forma during the Summer Session where the same has been seen and returned by them the Winter Session immediately preceeding and that they will proceed to do Justice therein without indulging to defenders any such sight during the Summer Sessions in the future where there hath been no material amendments made be the Pursuers of their Summonds nor new pieces produced in the Process to be instructions and grounds thereof and which were not seen the Winter Session immediately preceeding And ordains these presents to be insert in the Books of Sederunt His Majesties Instructions to the Commissars February 20. 1666. THE Lord President having received the Instructions following from Iohn Earl of Rothes His Majesties High Commissioner did communicat the same to the hail Lords and that it was His Graces pleasure and desire that the same might be recorded in the Books of Sederunt The Lords of Council and Session ordained the saids Injunctions to be insert and recorded in the saids Books of Sederunt under Protestation always that the recording of there saids Injunctions should be no ways prejudicial to the priviledge of the Lords of Session or derogat in any sort from their Iurisdiction in civil causes And ordained the said Injuctions after recording thereof to be given up and delivered to the Archbishop of St. Andrews his Grace or to any having his warrand to receive the same And that the Extracts of the saids Injunctions be given to all Persons who shal conceive themselves concerned therein whereof the tenor follows Sic Supra Scribitur CHARLES R. HIS Majesty Authorizes and injoyns these following Instructions contained in five Leaves Attested and Subscribed by two of the late Commissars of Edinburgh for regulating the Proceedings of the Commissars in their respective Courts Oxford January 21. 1666. and of His Reign the seventeenth year By his Majesties Command Sic Subscribitur LAVDERDAIL INstructions and Rules set down and appointed by the Reverend Fathers Arch-bishops and Bishops in this Kingdom to the Commissars Clerks Procurator-fiscals and other Members of Court of the Whole Ecclesiastical Jurisdiction having Commission from the saids Reverend Fathers 1. Ye are by vertue of your Commission to decide and judge in Causes concerning Benefices and Teinds in matters of Scandal Confirmations of Testaments great and small within your bounds all Causes Testamentar and in all other matters wherein the Oath of Party is required if the same does not exceed fourty pounds And in all other Causes wherein the Parties submit themselves to your Jurisdictions 2. Ye are to Judge in Reductions and Declarators of Nullity of Marriage for Impotency or upon any other ground or reason whatsomever All actions of Divorcement for Adultery or upon any other ground All Actions or Questions of Bastardry and adherences when the samine shall have a connexion with the Lawfulness of Marriage or Adultery all which are reserved to the Commissars of Edinburgh and do belong to their Jurisdiction privative But
to you the Subjects of the Kings of Spain and Sweden with whom we have particular Treaties which We shall send to you And wâ—ose Ships and Goods are to pass free they having such Passes as are agreed upon of which We did send Copies to Our Privy Council and so We bid you Farewell Given at Our Court at Whitehall the twenty seven day of December One thousand six hundred sixty and six And of Our Reign the eighteen year By His Majesties Command Subscribed thus LAUDERDAIL VVarrand for General Letters for the Contribution due out of Benefices to the Lords November 17. 1668. THE Lords have Ordained and hereby Ordain Letters and Executorials of Horning to be Direct at the Instance of these Ordinary Lords who have been admitted since Iune 1663. or shall be admitted hereafter against the Arch-bishops Bishops Priors Heretors Liferenters Feuars Farmers Tennents and Tacksmen of the Prelacies within this Kingdom for payment to them of their respective proportions of the Contribution Money payable out of the saids Prelacies and Allocat to their Predecessors in whose place they have succeeded by an Act of Sederunt of the date the 11. day of Iune 1663. and a Roll subjoyned thereto containing the particular division of the Contribution Money amongst the saids Lords and that for all Years and Terms since their admission and Entry and Yearly and Termly in time coming Oaths to be taken for the Price of Fowls Ianuary 15. 1669. THE which day It being represented to the Lords That the Magistrates of Edinburgh desired to know whether they might warrantably exact the Oaths of the Poultrie-men and In-keepers concerning their contravention of the Acts lately made for the price of Fowl drest and undrest The Lords finds that the Magistrates of Edinburgh may and ought to exact the Oaths of the contraveeners of these Acts either the Poultrie-people who sell the Fowls undrest or In-keepersâ— who sell them drest And recommend to the Magistrates to be careful in the speedie and exact execution of these Acts. ACT anent extracts of Registrate writs bearing the Procurators named though not subscribed December 9. 1670. THE Lords of Council and Session do grant warrand to the Lord Register and the Clerks of Session his Deputes to registrate such Bands Contracts and other Writs as shall be given in to them to be registrat and therein to insert the consent of Advocats as Procurators to the Registration as they were in use to do formerlyâ— and accordingly to give out extracts thereof notwithstanding that the Advocats do not subscrib their consent And appoints this warrand to continue untill further order Likeas the Lords declare that any Extracts given out by the Clerks in manner foresaid since the first day of November last are warrantably given and cannot be quarrelled upon that ground that the Advocats consent to the Registration is not subscribed ACT Anent Extracting Acts and Decreets Ianuary 20. 1671. THE Lords enacted and ordained that no Act or Decreet done either in the Inner or Utter-house shall be extracted untill 24 hours elapse after the same is read in the Minut Book ACT against Magistrats of Burghs forletting prisoners for Debt go out of the tolbooth Iune 14. 1671. THE Lords considering That albeit by the Law Magistrats of Burghs are oblidged to retain in sure warde and firmance Persons incarcerat in their Tolbooths for Debt Yet hitherto they have been in use to indulge Prisoners to go abroad upon several occasions And it being expedient that in time coming the foresaid liberty taken by the Magistrates of Burghs should be restrained and the Law duely observed Therefore the saids Lords do declare that hereafter it shal not be lawful to the Magistrates of Burghs upon any occasion whatsomever without warrand from His Majesties Privy Council or the Lords of Session to permit any Person incarcerat in their Tolbooth for Debt to go out of Prison except in the case of the Parties sickness and extream danger of Life The same being always attested upon oath under the hand of a Physician Chirurgion Appothecary or Minister of the Gospel in the place Which Testificat shall be recorded in the Town Court Books And in that case that the Magistrats allow the Partie only liberty to reside in some house within the Town during the continuance of his sickness They being always answerable that the Partie escape not And upon his recovery to return to Prison And the Lords declare that any Magistrats of Burghs who shall contraveen the premisses shall be lyable in payment of the Debtsâ— for which the Rebel was incarcerat And appoints this Act to be intimat to the Agent for the Royal Burrows and to be insert in the Books of Sederunt His MAJESTIES Order to the Commissioners of His Thesaury to free the Lords from the Cess Iuly 19. 1671. CHARLES R. RIght trusty and well beloved Cusing and Counciller right trusty and well beloved Councillers and trusty and well beloved We greet you well Vpon the humble desire of President and Senators of Our Colledge of Iustice Signified unto Vs by Our Secretary We have thought fit to express Our so great tenderness of their Priviledges as to discharge the President and all the ordinary Lords of Session of their proportions of the Currant Supply granted unto Vs by the late Session of Our Parliament although they gave their Bond for the same Therefore Our pleasure is and We do hereby Authorize you to give Command nor to exact any of the said Supply from the proper states of the said President and ordinary Lords of Session but that the same be discharged And if any part thereof be already Collected that it be payed back to them respectively for which this shall be your warrand And so We bid you heartily Farewell Given at Our Court at Windsor Casile the 12 day of Iuly 1671. and of Our Reign the 23 Year Subscribed thus by his Majesties command Lauderdail ACT for keeping the Barrs November 3. 1671. THE Lords of Council and Session considering that there is great disorder and confusion occasionâ—d by the thronging in of the Advocats men and others upon the Clerks and their Servants in the Utter-house before the ordinary Lord go to the Bench. And after twelve a clock at the reading of the Minut Book For remeid whereof they ordain the Minut Book in time coming to be read in the nethermost end of the Loft appointed for the Advocats Servants And prohibit and discharge all Advocats Servants and other persons who are not licenced and allowed to enter or remain within the Innermost Barr of the Utter-house where the Clerks and their Servants stays under the pain of three pounds Scots to be applyed the one half for the use of the Poor and the other to the Macers And to be further censured by imprisonment or otherways as the saids Lords shall think sit And to the end the said Act may be more duely observed The Lord do ordain authorize and require the Macers to exact
unwarrantable Correspondences amongst Advocates whereby they may forbear or refuse to Consult Plead or concur with these who did so faithfully adhere to Our Service and did continue in or early return to their Station and as further Evidences of Our Royal Favour We do Ordain That the three Clerks of Session who do expede your Decreets shall be nominate by the Senators of Our Coledge of Iustice in all time coming and that they be subject to their Sensare and that the Clerk of Register give them Deputations from time to time and in case of Vaiking of the Clerk of Registers Offâ—â—â— We do Authorize the saids Clerks of Session to Act by your Warrand as they shall be Ordered by you without prejudice to the Clerk of Register of all other Benefite and Emolument belonging â—o or depending upon that Office And it is Our further Pleasure that in all time coming there be only three ordinarie Clerks of Session besides the Clerk of the Bills according to the ancient Constitution and that of the number that now serve you make choice of three that shall still serve and that you modifie such Satisfaction to be payed by those that remain to those that are to go out as you shall find just and reasonable and so We bid you Farewel Given at Our Court at Whitehall the twenty fourth day of May One thousand six hundred seventy and six And of Our Reign the twenty eight year Subscribed thus by His Majesties Command LAUDERDAIL ACT concerning the Registers Iuly 4. 1676. THE Lords having considered His Majesties Letter direct to them bearing that whereas by His Majesties advancing Sir Archibald Primerose of Caringtoun late Clerk Register to the Office of Iustice-General the Office of Clerk Register is now Vacant and seing His Majesty hath thought it necessar for the advantage of His Service and for the good of His Subjects that the hail publick Records of this Kingdom which are and were in the Possession and Custody of the late Clerk Register or his Deputs and Servants be put and keeped in good Order Therefore His Majesty impowers and authorizes the saids Lords to take special care and see that the same be effectually done and to that effect that they appoint some of their number to take inspection thereof and by themselves and such as they shall imploy under them to put and continue them in good Order And His Majesty authorizes the saids Lords and those of their number appointed by them to receive the hail publick Registers and Records from the late Clerk Register upon such account and Inventar as they should find just safe and secure and which being effectually gone about and done that they render to His Majesty or to His Secretary for His Majesties perusal a full and exact account of their diligence therein to the end His Majesty may thereafter declare His further Pleasure and for effectuating hereof that the Lords in His Majestie 's Name and by His Authority Require the late Clerk Register and his Deputs and Servants to exhibite and produce the saids hail Records to them or those appointed by them immediatly after receipt of His Majesties Letter The saids Lords in pursuance of His Majestie 's Command do nominat and appoint the Lords Thesaurer Depute Collingtoun Reidfoord and Newtoun or any two of them to meet at such times as they shall think convenient and to take inspection of the hail publick Records of the Kingdom which are or were in the Possession and Custody of the Lord Caringtoun late Clerk Register or his Deputs and Servants and by themselves or such as they shall imploy under them to put and continue the same in good Order and authorize the Lords above-named to receive the saids hail publick Records from the Lord Caringtoun upon sufficient Account and Inventar and to that effect the Lords in His Majesties Name and by His Authority do Require the Lord Caringtoun and his Deputs and Servants to exhibite and produce the saids hail publick Records to the Lords above-named or any two of them whem they shall desire the same and allows the said Lord Caringtoun or any Person whom he shall authorize to be present at the Inventaring of the saids Registers to the end obedience may be given to His Majestie 's Letter in all points ACT for Inventaring the Registers Books Iuly 13. 1676. THE which day the Lord Thesaurer Depute Collingtoun Reidfoord and Newtoun made report to the Lords that conform to the Warrand given to them they had met with the Lord Caringtoun late Clerk Register and had delivered to him the Ordinance past by the Lords upon His Majestie 's Letters concerning the Registers and had taken a view of the hail Records in his Custody in the Parliament-House and in the Castle of Edinburgh and that the Lord Caringtoun declaredâ— he would deliver the same either upon Inventar or in bulk without Inventary upon oath that he has Abstracted none of them as the Lords should think fit to order he being exonered of the saids Registers but they found the Warrans to be so many and not in order that it would take a long time to Inventar them which report being considered by the Lords they in pursuance of His Majesties Commands do ordain the whole Register Books which are in the said Lord Caringtoun's Custody to be presently Inventared by Iohn Anderson Writer in Edinburgh and any others who shall be appointed by the Lords above-named who shall give their oaths that they shall faithfully discharge this Trust according to such Directions as they shall receive from these appointed by the Lords and ordain the Inventary to bear What each Book contains in general at what time itâ— begins and when the same ends and if there be any blanks in the Books that the same be marked in the Inventary And ordains the said Lord Caringtoun to give the said Iohn Anderson or any others to be appointed by the saids Lords access to the saids Registers to the effect foresaid and allows him or any he shall appoint to be present at the said Inventaring and after the said Inventar shall be made the Lords do impower those of their number above-named or any two of them to to take the oath of the Lord Caringtoun if he hath any more Register Books Records or Warrants then are in the Rooms in the Parliament-House and Castle of Edinburgh whereof he is to deliver the Keys and if he abstracted or embazeled any of them or if they be all intire as he received them or as they came at any time thereafter to his hands And likewise ordain any of his Servants intrusted with the keeping of the saids Registers to be examined upon oath thereanent and thereafter ordain the Lord Caringtoun to deliver the Keys of the Rooms or Presses where the saids Registers and Warrands are to these of their number appointed to receive the samine Which Inventary being made and the Lord Caringtoun giving his oath and delivering the Keysâ— as
as done without his Warrand And as to the Procuratory expead in the Chancellary Constituting an Acturney to the said Iames Cicile the expeading thereof was without his knowledge or warrand and therefore the Seasine being taken without his Warrant was null and made no Alienation nor Recognition as if any Heretor Disponing Ward-Lands and giving a Precept of Seasing if any third Party should accidentally find or steal away that Precept and take Seasine the same would be found null as without Warrant and would infer no Recognition 2ly Absolvitor because the Disposition to the Defender bears expresly that Dirltoun Dispones failzing Heirs-male of his Body so that it being conditional and the Seasine being actus legittimus qui nec recipit diâ—m nec conditionem the samine is null for if Diâ—ltoun had an Heir-male of his own Body he would have excluded James Cicile not by way of Reversion or Retrocession there being none such in the Disposition therefore it behoved to be a Suspensive Condition 3ly Absolvitor because though the Seasine had been accepted warrantably yet the Accepter was minor and thereupon Leased and ought to be restored and the Seasine annulled and consequently the Recognition The Pursuer answered to the First non relevat for albeit there had been no Acturney out of the Chancellary the Seasine would have been valid because there needs no other Procuratory for taking of Seasine but only the Precept of Seasine which is an express Mandat of the Disponet and the having thereof in the Acturneys hand is a sufficient evidence of the Warrant or Mandat to be Acturney for the Receiver which proves sufficiently his Warrant neither was there ever any more required to a Seasine in Scotland and if more were required all Seasines would be null it being ordinar to give Seasines to Infants or absents out of the Countrey but the delivery of the Precept by the Disponer to any Person in Name of the Accepter is a sufficient Mandat or Acturney for the Accepter especially here where a Grand-Father gives Infeftment to his Oye he might well give a Warrant to an Acturney for him to accept To the second albeit the Disposition bears failing Heirs-male of the Disponers Body Yet the Precept is directed to give present State and Seasine without delay whereby it is clear that the Disponers meaning was not that this condition should be Suspensive to impede the Infeftment And therefore all it could operate is to have the effect of a resolutive Condition that if any Heir-male should be Supervenient he might upon that condition pursue James Cicile to renunce the Right or to declare it null neither is a Seasine actus legittimus and though it were and were incapable of a day or condition yet that would not annul the Act but annul the condition or day as aditio haereditatis is actus legittimus Yet if any man enter Heir for a time or under condition he is Heir simply and the time and condition is void but not the Entry it self To the Third albeit regulariter Minors Leased may be Restored yet that hath its Exceptions as a Minor being Denunced Rebel and his Escheat fallen or thereafter his Liferent or bearing in Non-entry either simply or through a wrong or informal Infeftment he would never be restored against these Casualities so neither against the taking of Seasine in so far as may infer Recognition 2ly There could be by the Seasine no Lesion at that time Cranburn being then but his Mothers second Son and not alioqui succâ—ssurus to the half of the Estate as now he is neither is ever Lesion interpret by the prejudice of any part of a Deed unless there were Lesion of the whole as if Lands were Disponed to a Minor with the burden of Debts he could not reduce the burden of Debts as to his Lesion unless thereby the whole Disposition were to his Lesion The Lords Repelled these three Defenses Rig of Carberrie contra His Creditors Eodem die THE Creditors of Carberrie having obtained a Decreet against Carberrie and Denunced him thereupon pursues for Annualrent since the Denunciation conform to the Act of Parliament thereanent The Defender alleadged Absolvitor First Because the Horning was manifestly null he being Denunced in the Name of Richard the Usurper after he was out of his pretended Authority 2dlie Because the Decreet being Suspended a fifth or sixth part thereof was taken away 3dlie The Denunciation was not at the Cross of the Regality of Musselburgh where he dwells but at Edinburgh 4lie Before the Dâ—nunciation he had given in a Bill of Suspension whereupon there was a Deliverance given superceeding Execution till the Bill were seen and answered in the mean time these Pursuers getting the Bill to see proceeded to Denunce The Pursuers answered to the first that it was nottour and attested by the Keeper of the Signet that Richard was repute in Scotland to be in his Authority till the 18. of May 1659. till which the Signet was open and many Letters past in his Name and this Denunciation was upon the sixth of May and the Charge in Aprile In respect whereof the Lords Repelled the first Defense They Repelled also the second Defense as to the Annualrent of what was found due by the last Decreet They Repelled the third Defense because the Usurper had cryed down Regalities and found the fourth Defense Relevant scripto vel juramento viz. That there was a Deliverance stopping Execution the time of the Denunciation Rickart contra Eodem die RICKART being Tacks-man of a Room of the Barony of Lowdoun set the same to a Subtennent for paying the Heretors Rent and so much superplus whereupon he Charged the Sub-Tennent who Suspended and alleadged that the Charger had sub-set to him as Tacks-man and was obliged to produce his Tack to him and being Warned by the Heretor he did by way of Instrument require the Chargers Tack if he any had to Defend himself thereby which he refused and the truth is he had no Tack unexpired Whereupon he was necessitate to take a new Tack from the Heretor for the whole Duty he was obliged to pay to the Heretor and Rickart before The Charger answered non Relevat unless as he had been Warned he had also been Removed by a Sentence in which the Charger would have compeared and Defended And albeit he had not compeared the Defender had this Defense competent that he was Tennent to the Chargâ—â— by payment of Male and Duty who had Right by Tack either standing or at least he bruiked per tacitam reloâ—ationem and he not Warned nor Called The Lords found the Reason of Suspension Relevant and that the foresaid Defense of tacit Relocation would not have been Relevant tacit Relocation being only effectual against singular Successors of the natural Possessor The Warning of whom is sufficient to interrupt the same not only as to them who are warned but any other Tacks-man whose Tacks are expired and therefore the
Defense in that Case must always be that the Defender is Tennent by payment of Male and Duty to such a person who either is Infeft or hath Tack and Terms to run after the Warning but if the Charger had a Tack standing the Lords ordained him to produce the same and they would hear the Parties thereupon Charles Oliphant contra Dowglasse of Donnoch February 3. 1663. CHarles Oliphant as Assigney Constitute by David Macbrair Charges Dornoch to pay the sum of 1800 merks Compearance is made for an Arrester as having Arrested before the Assignation at least before Intimation The Assigney answered no preference upon this Arrestment because it was Execute upon the Sabbath Day and so is not lawful for by the Law of all Nations Judicial Acts done by Authority of Judges upon Legal Process diebus feriates are null and there is an Act of Sederunt to that same effect The Arrester answered that there was no Law prohibiting such Executions or declaring them null and though it was a fault and breach of the Sabbath to do so that annuls not the Act fiâ—ri non debet sed factum valet The Lords were all clear that such Executions should be prohibit in time coming but quo ad praeterita some were non liquct Yet the major part found the Execution null for they thought that albeit Acts of privat Parties on the Sabbath Day might stand legally valid as if Extracts were Subscribed that day or a Consignation made which had been found valid by a former Decision yet judicial Acts authoritate judicis are null else Messengers would ordinarly wait Parties upon the Sabbath Day for all Execution by Horning and Caption c. Laird Phillorth contra Lord Frazer February 4. 1663. SIR Alexander Frazer of Phillorth being in Distresse for Debt Disponed his Barony of Cairnbuilg to Robert Frazer of Doors which Lands of Cairnbuilg lyes near to Phillorth and the House thereof was his Residence in the Alienation there is a Clause conceived to this effect that it shall not be leisom to the said Robert Frazer of Doors to Alienate the Lands during the Lifetime of the said Sir Alexander Frazer and if the said Robert Frazer did in the contrary he obliged him to pay to the said Sir Alexander the Sum of ten thousand pounds for Damnage and Interest ex pacto convento and if the said Robert should have aâ—do to sell the saids Lands after the death of the said Sir Alexander he obliged him to make offer there to the Heirsand Assigneys of the said Sir Alexander or any Person he pleased nominat of the Name of Frazer for 38000 pounds The said Robert Frazer of Doors Disponed the saids Lands to Staniewood during the life of Sir Alexander Frazer Sir Alexander assigned the Contract and the foresaid Clause to this Phillorth whereupon he raised Improbation and Reduction of the Disposition granted by Doors to Staniewood the Lord Frazers Grand-Father upon this Reason that he as Assigney by his Father to the Clause de non alienando had good interest to pursue Reduction of the Disposition contraveening the said Clause and true it is that the said Disposition granted by Doors to Staniewood was null as proceeding a non habente potestatem in so far as by the foresaid Clause in the said alienation granted by his Grand-Father to Doors it was expresly provided it should not be leisom for Doors to sell c. Which being a Provision in the Disposition repeated at the least generally in the Procuratory of Resignation is pactum reale effectual against singular Successors as was lately found in the case of the Lord Stormont and so must annul the Right made contrair thereto 2ly Albeit it were not a real Paction yet unquestionably the Obligement not to Annalize did personally oblige Doors and thereupon there was an Inhibition raised before my Lord Frazers Grand-Father Staniewoods Right And therefore the Disposition made thereafter ought to be reduced ex capite inhibitionis It was answered for the Lord Frazer to the first member of the Reason non relevat for such an Obligation de non alienandoâ— is reprobat in Law as being contrair the nature of Property 2ly It is not reale pactum albeit it were in the Charter or Seasine much less being only in the Disposition and in the Narrative of the Procuratory of Resignation thus and to the effect the said Robert Frazer may be Infeft upon the provisions and conditions in manner foresaid but no further mention thereof in the Procuratory of Resignation or Infeftment and so meets not with Stormonts Case where the Clause was expresly resolutive that in such a Case the Right should be null ipso facto and return to the next person who might be Heir of Tailzie Which Clause was not only in the Disposition but in the Procuratory Charter and Seasine Registrate and thereby equivalent to a Publication of an Interdiction but here there is no resolutive or irritant Clause nor any Right reserved to return in case of contraveening nor is it in the Infeftment at all As to the second the Inhibition cannot make the Clause effectual to annul the Alienation because Doors was not simply obliged not to Alienat during Sir Alexanders Life but if he did in the contrair to pay ten thousand pound for Damnage and Interest ex pacto convento which cannot be understood of Damnage by delay or Expence in attaining the principal Obligation seeing it bears not as is ordinar by and attour performance and the quantity thereof being so great it must be evidently understood of the value of the principal Obligation so that it becomes an alternative or restrictive Clause whereby it was in Doors option whether to forbear to sell or to pay the ten thousand pounds if he did sell so that the Inhibition can reach no further then to the ten thousand pounds seing Doors by selling became obliged for the ten thousand pounds The Lords found the Defense Relevant and that the Clause or Inhibition could extend to no further then ten thousand pounds It was further alleadged for Frazer absolvitor from the ten thousand pounds because it being a Moveable Sum fell under Sir Alexander Frazer his Escheat which was Gifted to one Forbes and declared expresly as to this ten thousand Pounds and assigned to the Lord Frazer The Pursuer answered that this Sum was Heretable because it succeeded in the place of the principal Obligation not to alienat for such a time and after that time to offer the Lands of Phillorth and his Heirs for eight thousand pounds which is clearly an heretable Clause and therefore this Sum coming in leu thereof must belong to the Heir or Assigney and so fell not to the Fisk seing surrogatum sapit naturam surrogati as Sums Consigned for Redemption of Lands before Declarator are not moveable but belong to the Wodsetters Heirs or Assigneys so in mutual Obligations whereby one person oblieges to Dispone or Resign Lands and another is oblieged for
ipso the Earl of Hooms Right fell in consequence as founded upon Iohn Stewarts Dishabilitation and with it the Defenders Tack The Lords Repelled the Defense upon the Tack in respect of the Reply for albeit the Act of Parliament 1633. be much larger then the Act salvo 1621. so that thereby the Lords might have cognosced upon John Stewarts Rehabilitation as without Citation if it had wronged any other Persons Right but finding that it was an Act of Iustice wronging no Persons Right they found the same Relevant Town of Edinburgh contra Sir William Thomson Iune 6. 1665. THe ordinar Council of Edinburgh having Deposed Sir William from his Office of Town Clerk he raised a Reduction of the Sentence on four Reasons first that the samine was null because it proceeded without Citation or necessar Solemnities of Process 2ly Because the Town could not be Judge in their own Cause 3ly Because by the Sett or the Kings Decreet Arbitral for the Government of the Town no Person could be admitted to any Office or Benefice therein but by the great Council consisting of the ordinar Council and their Deacons and consequently none could be Deposed from such Offices but by the same great Council and this Sentence was by the ordinar Council 4ly That the Sentence was exorbitant and unjust in Deposing him for an Omission sine dolo lata culpa aut damno The Lords having discussed the fourth Reason and heard the whole Dispute at length in praesentia The Defender after Interlocutor but not pronounced on the fourth Reason borrowed the Process and refused to re-deliver it The Town called upon a Copy and represented the manner of abstracting the Process The question was what should be done and whither Sir William might before Litiscontestation or any Interlocutor pronounced take up his Process The Lords admitted Protestation on the Copy and ordained an Act of Sederunt prohibiting the Clerks to give up any Process to the Pursuer after it was Dispute to the full in all the Members thereof though no Interlocutor were past or pronounced thereupon lest after so long Debate and hearing the Lords should at the discretion of Parties lifting their Process lose their time but what had been Dispute should be advised de recenti Iune 8. 1665. The Lords upon Supplication ordained an Appryzing to be allowed albeit not only the Debitor against whom it was deduced was dead but the threescore days were long since expired and ordained the allowance to be Registrat in respect that the late Act of Parliament declares that such Appryzings as are not Registrat within threescore shall not be preferred to posterior Appryzings first Registrate so that the Lords thought that where the allowance was Registrate albeit after the threescore dayes it would be preferred to any other Appryzing Registrat thereafter Eodem die The Lords intimat to the Writers Keeper of the Signet and Clerk of the Bills an Act of Sederunt prohibiting general Letters upon Presentations or Collations of Ministers whether having Benefices or modified Stipends until every Incumbent obtain a Decreet conform albeit they should produce their Predecessors Decreet conform or a Decreet of Locality containing the Stipend particularly Swintoun contra Notman Iune 10. 1665. SWintoun in his Testament having named his Wife Tutrix to his Children and Notman and others Overseers His Relict within a year was married and so her Tutory ended shortly after Notman received from her a number of several Tickets belonging to the Defunct and gave his Recept Thereof bearing that he had received them in his Custodie and keepingâ— thereafter he uplifted the Sums contained in some of the Tickets and gave a Discharge to the Relict and second Husband of some particulars and consented with the Pupil to a Discharge to a Debitor which expresly boor him to be Tutor Testamentar and did intromet with the Rents of some Tenements and Disposed upon some Sheep whereupon Swintoun the Pupil pursues him as Tutor or Pro-tutor not only for all he Intrometted with but for the Annualrent thereof and for all the rest of the Defuncts means which he ought to have intrometted with and to have called the Tutrix to an account therefore and condescended upon the insight and plenishing of the Defuncts House the Goods in his Shop he being a Merchant the Debts in his Compt Books and these due by his Tickets not only received by Notman but by others and for the remander of his Sheep and other Moveables and for the rest of his Rents not uplifted by Notman It was alleadged for Notman 1. That that member of the Libel was not Relevant whereby he was pursued not only for that he Intrometted with but what he omitted because a Pro-tutor is not obliged as far as a Tutor for the Pupils whole Means but this far only that whatsoever he intromets with as to that he is obliged as a Tutor to imploy it and preserve it and so is lyable for Annualrent therefore and in that he differs from another negotiorum gestor who is not lyable for Annualrent but he is not lyable for other particulars of other kinds that he medled not with as albeit he had medled with the Tickets yet that would not oblige him to medle with the Compt Books Plenishing or Cattel there being no Law to oblige him neither was there any possibility that he could meddle therewith being neither obliged nor able so to do having no active title in his Person for Overseer non est momen juris and by our Custom iâ— doth oblige to nothing but is as the fidei commissa were in the ancient Roman Law in the arbitriment of him to whom they were committed without any obligation or legal compulsion ex mera pietate so that his being Overseerâ—â— could oblige him in nothing and his meddling thereafter to preserve the means of the Pupil when his Tutrix and Mother had superinduced a second Husband ought not to be hurtful to him otherwayes no Overseer will ever meddle in any case with any thing of the Pupils whereby their Means may be destroyed 2ly He cannot be lyable as Tutor notwithstanding of the Discharge subscribed by him hoc nomine because albeit that would prove him Tutor where the case did not otherwayes appear seing the contrair is manifest that whereas the Discharge bears him Tutor Testamentar The Testament produced bears him only to be Overseer faâ—sa designatio non obest 3. The Ticket or receipt of the Bonds cannot obliege him for all these Bonds but such thereof whereof he uplifted the Money and only from that time that he uplifted the same especially seeing the Ticket bears that he received them in his Custodie which any friend might do especially an Overseer and does not import his purpose of Intromission The Pursuer answered to the first that his Lybel was most Relevant not only for Intromission but Omission because a Pro-tutor in Law is oblieged in all points as a Tutor not only pro commissis sed pâ—o omissis
extended to the maintenance contained in that Act. Bessie Scot contra Somervail Eodem die BEssie Scot having charged Somervail who was Cautioner in an Suspension for payment of an Sum of Money contained in a Bond Suspended He Suspends on this Reason That the Money was consigned in the hands of Mr. George Gibson Clerk to the Bills for the time It was answered that Mr. George Gibson was now out of Office and insolvent and the Consignation behoved to be upon the peril of the Consigner It was answered that the the Consignation must be upon the peril of that Partie who was the cause of Consignation and that was the Charger in so far as it was instructed by an Instrument produced that the Suspender offered the Annualrent and so much of the Penaltie as the Charger would have Declared upon her Oath that she had truely payed which she refused unless the whole Penaltie were payed whereupon he consigned through her Fault The Lords sustained the Reason and ordained the Noltar and Witnesses to depon upon the Truth of the Instrument for Instructing thereof Dowglas contra Cowan and Russel Iuly 29. 1665. PEter Russel by his Ticket acknowledged him to have received a certain Quantity of Wine and oblidged him to make payment thereof according to the Condition agreed upon Dowglas being Assigned to the Ticket insists for the ordinary Price of Wine It was alleadged no Process for the ordinar price of Wine but only for the price agreed on which behoved to be condescended on and proven by the Debitors Oath being above an hundred pounds It was answered that seing these Conditions were not adjected the ordinary price was to be understood unless it were proven by the Debitor what they were c. that they differred from the common Price The Lords found that the Debitor by his Ticket behoved to condescend on the Conditions qui potuit legem apertius dicere and not the Pursuer but they found Witnesses might prove the condition Heretors of Don contra Town of Aberdeen Eodem die THis day Report being made concerning the Cruives of Don. The Lords found that there was no necessity to keep alwayes open a mid-stream notwithstanding the several Acts of Parliament made thereanent which upon enquiry through the Kingdom they found to be in desuetude and especially in these Cruives to be made past memory with Saturndayes stop only and ordained the distance of the Hecks to be three Inch Scots measure whereof 27. make an Elle vide supra Lady Knapeirn contra Sir Robert Farquhuar November 9. 1665. SIr Robert Farquhar being Infeft in certain Lands by the Laird of Knapeirn with his Ladies consent pursues the Tennents and obtains Decreet for Mails and Duties The Lady pursues Reduction on these Reasons that she stood Infeft and in possession eleven years after her Husbands death bona fide without any persuit and so being in judicio possessorio she was tuta reâ—â—ptione It was answered that the benefit of a possessorie Judgement was never granted to any partie in prejudice of these to whom that Party had Disponed or consented to a Disposition which includes an Obligation to possesse them nor can they be in bona fide contrair their own consent and deed to possesse The Lords repelled the Defense in respect of the Reply It was further alleadged that Sir Robert by a Declarator produced had acknowledged nothing of that Wodset due but what was contained in a fitted accompt written by him and subscribed by both Parties which did innovat the Wodset and Sir Robert could have no Right thereby but by this Compt which only could touch the Husband Secondly Albeit the Wodset did stand in so far as the Compt extends yet Sir Robert ought to have no benefit by the Wodset till he produce the Accompt It was answered that the Accompt was never in his custodie but given to Knaperin in whose favours it was introduced and seing it was clear that his Wodset was not extinct but restricted the Pursuer behoved to condescend in quantum and to prove it alliganti incumbit probatio The Lords ordained and appointed Sir Roberts Oath to be taken before answer on his having the compt and yet they sound that he ought to produce 〈◊〉 but the Interlocutor was stopt the next day Teilzifeir contra Geddes November 11. 1665. MArion Geddes having granted to Samuel Veatch a blank Bond of 2000. merks Tailzifer being Creditor to Samuel Veatch Arrests all Sums in her hand owing to Samuel she depones that she was no wayes Debitor to Samuel but by a Bond given Blank in the Creditors name and that she knew not whose name is filled up therein compearance is made for whose name is filled up in the Bond and he alleadges he ought to be preferred to the Arrester because he offers him to prove his name was filled up in the Bond and that before the Arrestment the Bond was Registrate in his name and that before the said Marion deponed he had used Inhibition thereupon which she could not but have known It was answered for the Arrester that he ought to be preferred because albeit the Bond was blank ab initio yet in rei veritate Samuel Veatch was Creditor and so he behoved to be Legaily denuded which could not be done by filling up any other persons name without intimation thereof made to the Debitor for seing a Direct Assignation was not valid without an Intimation much less should this indirect way by the Creditors filling up another name than his own in the Blank which is in effect an Assignation And seing the Lords have already found that the Debitor acknowledging that he gave a blank Bond to any person and knows not whose name is filled up in it is lyable to any Arrester albeit he be under hazard to pay again to that person who has his Bord in justice it followeth that such Bonds must be intimat otherwayes it will unavoidably infer double payment It was answered that the Law requires Intimation to Assignation as a necessary Solemnity but has not required the same to the filling up of a Blank-bond the case whereof is not alike with an Assignation because where the Bond is blank the Debitor cannot pay any thing bona fide safely till he see the Bond filled up but where he knows the name filled up he may pay bona fide to the Cedent not knowing of the Assignation It was answered that the Law did require to all Assignations Intimation but the Case of Blank-bonds was but a late invention to defraud Creditors that it might not be known who was Creditor but seing it is truly an Assignation it deserves no favour more than a Direct Assignation and so should have as much Solemnity The Lords preferred the Arrester but because the Case was a leading Case and new after a second Interlâ—cutor adhering they allowed the Advocats to offer by Bâ—ll any new Reasons and particularly if it could be alleadged that the Debitor granter of the
Registration of Seasines there is neither Law nor Favour since for posterior acquirers who might have known the prior Infeftments And therefore in Infeftments of Warrandice Lands the Possession of the principal Lands is accompted Possession of the Warrandice Lands neither is there any ground to oblidge a Person who takes a Feu of Lands to demand a more publick infeftment of the Warrandice Lands then of the principal It was answered that albeit the Narrative of the Statute mention Fraudful alienations yet the dispositive words are General that wherever an Infeftment hath been publick by Resignation or Confirmation and hath attained Possession year and day the same shall exclude any prior base Infeftment attaining no Possession and if the said Act were only to be measured by Fraud then if it could be alleadged and astructed that the first Infeftment though base was for a cause onerous and without Fraud it should be preferred which yet never hath been done And for the Practiques they meet not this Case nor the Act of Parliament because the posterior publick Infeftment had attained no Possession It was answered that now consuetude had both Interpret and Extended the foresaid Act for thereby posterior publick Infeftments though they be not for cause onerous or cled with Possession year and day are ordinarily preferred contrair to the tenor of the Statute and base Infeftments retenta possessione where the obtainer of the Infeftment is negligent are accounted Simulat presumptione juris de jure but where there is no delay nor ground of â—imulation the base Infeftment is preferred whether the posterior publick Infeftment attain Possession for year and day or not The Lords having heard this Case at length and debated the same accuratly amongst themselves in respect they found no preceeding Decision whether base Infeftments of Warrandice where there was possession of the Principal Lands were valid or not against posterior publick Infeftments They found this base Infeftment of Warrandice valid against the posterior publick Infeftment The Infeftment in Warrandice being Simul with the Principal and not ex intervallo and being after the Act of Parliament 1617. but did not decide the Case to be of generall rule for Warrandice ex intervallo before the said Act. Grissell Seatoun and Laird of Touch. contra Dundas Ianuary 11. 1666. GRissall Seatoun and the Laird of Touch younger her Assigney pursues Dundas as charged to enter Heir to Mr. Hendrie Mauld for payment of a Bond of 8000 merks granted to the said Grissall by the said Mr. Hendrie her Son It was alleadged that the Bond was null wanting Witnesses It was Replyed That the Pursuer offered him to prove it Holograph It was duplyed that albeit it were proven Holograph as to the body yet it could not instruct its own date to have been any day before the day that Mr. Hendrie died and so being granted in lecto aegritudinis cannot prejudge his Heir whereupon the Defender has a Reduction It is answered that the Reduction is not seen nor is there any Title in the Defender produced as Heir It was answered that the nullitie as wanting Witnesses was competent by exception and the the duply as being presumed to be in lecto was but incident and was not a Defense but a Duply The Lords Repelled the Defense upon the nullitie of the want of Witnesses in respect of the Reply and found the Duply not competent hoc ordine but only by Reduction and found there was no Title produced in the Reduction Executors of William Stevinson contra James Crawfoord Ianuary 12. 1666. THE Executors of William Stevinson having confirmed a Sum of 3000. and odd Pounds due by Bond by Iohn Ker to the said William and also by Iames Crawfoord who by his missive Letter became oblidged to pay what bargain of Victual should be made between the said Iohn Ker and Iohn Stevinson for himself and as Factor for William Stevinson And subsums that this Bond was granted for a Bargain of Victual It was answered that albeit this Bond had been in the name of William Stevinson yet it was to the behove of Iohn Stevinson his Brother who having pursued upon the same ground the Defender was Assoilzied and that it was to Iohns behove alleadged First That Iohn wrot a Letter to his Brother William to deliver up his Bond acknowledging that it was satisfied and that Iohn having pursued himself for the other Bond granted in place of this The said Umquhil William Stevinson compeared or a Procurator for him before the Commissars and did not pretend any Interest of his own neither did William during his Life which was ten yearsâ— thereafter ever move question of this Bond nor put he it in the Inventar of his Testament though that he put most considerable Sums therein It was answered 1. That the presumptions alleadged infer not that this Bond was to Iohn Stevinsons behove because by Iames Crawfoords Letter there is mention made of several Bargains of Victual both with Iohn and William so that the Bond and pursuite at Johns instance might be for one Bargain and at Williams for another especially seing the Sums differ 2dly Writ cannot be taken away by any such Presumptions It was answered That if the Defender James Crawfoord had subscribed this Bond it could more hardly have been taken away by Presumptions but he hath not subscribed the Bond but only his missive Letter which is dubious whether it be accessory to this Bond or if that Bond was for this Bargain and therefore such a writ may well be â—lided by such strong Presumptions The Lords found the Presumption Relevant and that they instructed the Bond was to Johns behove and therefore in respect of the ahsâ—lvitor at Crawfoords instance they Assoilzied William Dick contra Sir Andrew Dick. January 13. 1666. WIlliam Dick pursues Sir Andrew Dick his Father for a modification of his Aliment whereupon the question was whether Sir Andrew Dick himself being indigent and having a great Family of smal Children and the Pursuer having been Educat a Prentice whether the Pursuer should have a Modification The Lords considering the great Portion the Pursuers Mother brought and that he was a Person of no ability to Aliment himself by his industrie decerned Sir Andrew to receive him in his House and to entertain him in meat and Cloath as he did the rest or else two hundred merks at Sir Andrews option James Crawfoord contra Auchinleck January 17. 1666. THE Heirs of Lyne of Umquhile Sir George Auchinleck of Balmanno being provided to a Portion payable by the Heirs Male did thereupon charge the Appearand Heir Male and upon his Renounciation to be Heir obtained Decreet cognitionis causa after which that Appearand Heir dyed and the Decreet being Assigned to Iames Crawfoord Writer he now insists in in a Summons of Adjudication containing a Declarator that he having charged the next Appearand Heir to enter to the last Appearand Heir against whom the Decreet cognitionis causa was
in these Termes that he should present him to the Diets of Process and should make payment of what should be Decerned against him if he did not produce him within Termes of Law pendente lite Balnigoun raises Advocation and at the same Diet that the Advocation was produced Judicially before the Bailzies Heugh Mcculloch also produced Balnigoun and Protested to be free of his Bond as Cautioner the Bailzies did not Incarcerat Balnigoun but refused to Liberat Heugh Mccullochâ— till they saw the Event of the Advocation The Cause bâ—ing Advocat and Decerned against Balnigoun who succumbed in an alleadgence of payment The Pursuer craved Sentence against him and Heugh Mcculloch his Cautioner It was answered for Heugh Mcculloch that he was free because he had fulfilled his Bond in presenting Ballangoun and Protestâ—ng to be free albeit the Bailzies did not free him that was their fault It was answered that the Advocation being raised hindred the Bailzies to Incarcerat because they might not proceed after the Advocation and therefore the Cautionrie behoved to stand otherwise all Acts of Caution to answer as Law will might be so elided The Lords found the Cautioner free and found that the Bailzies notwithstanding of the Advocation might Incarcerat the principal Party unless he had found new Caution for seing if he had found no Caution a principio but had been Incarcerat till the Cause had been Discust the Advocation would not have liberat him and whensoever the Cautioner produced him Iudicially and protested to be free he was in the same case as if he had been Incarcerat and therefore the Bailzies might have detained him in Prison notwithstanding of the Advocation which did sist the Cause Mcbrair contra Sir Robert Crichtoun alias Murray Eodem die DAvid Mcbrair pursues a Removing against Sir Robert Crichtoun who alleadged absolvitor because the warning was null in so far as he being notourly out of the Countrey The Warning proceeded on 40 days not only at the Ground and Paroch-kirk but also at his Dwelling-house whereas it ought to have been on Letters of Supplement on 60 days at the Mercat Cross of Edinburgh Peer and Shore of Leith It was answered that the Act of Parliament anent Warning was only on 40 days without distinction being out of the Countrey or in the Countreyâ— and it was sufficient that the Summons of Removing upon the Warning was upon 60 days because the Warning at the House was rather an Intimation then a Citation which was sufficient seing the Defender had been butshort while out of the Conntrey not animo remanendi and so had still a Domicile where he was Cited The Lords sustained the Warning but in Respect the Defender had probabilem causam dubitandi They superceeded the Execution to the next Whitsonday without any violent profits Lord Borthwick contra his Wodsetters Feb. 21. 1666. THe Lord Borthwick pursues an Accompt and Reckoning against several Wodsetters who had Wodsets from him in the year 1660. to Count and Reckon for the Superplus of the Wodset more then their annualrent since the Act of Parliament between Debitor and Creditor upon that Clause thereof appointing Wodseters who have proper Wodsets before the year 1650. or since before the Act to Compt and be lyable for the superplus more than their due annualrent It was alleadged for the Defenders That the Pursuers had in the Wodsets expresly Renunced the Usurpers Act in favours of Debitors and all such Acts made or to be made and by the said Act between Debitor and Creditor there is an Exceptionâ— where Persons have renunced such Acts. It was answered that that Exception is insert in the Act before this Clause in Relation to Wodsets and does not relate to it but unto the former Provisions of Suspending the Sums which was also the Tenor of the Usurpers Act and therefore the Exception of the Renuncing such Acts cannot extend to the Case of accounting for Wodsets which could not be thought upon the time of the Wodset and of the Renunciation this Clause being according to common Law to hinder Usury which might have been indirectly taken by proper Wodsets though these by the Custom use not to be quarâ—elled The Lords Repelled the Defense in respect of the Reply and found the Exception not to extend to the Case of Wodsets It was further alleadged for the Defenders that they were not lyable to to compt for the Superplus for all years bygone since the Act of Parliament nor at all except in the Case that they had been required to quite the Possession of the Wodset and Security had been offered them for their Money and they had chosen rather to retain the Wodset and to compt for the Superplus for as to all years preceeding they were bona fide Possessors and had ground to presume that the Pursuer did acquiesce in the Wodset as only proportionable to the annualrent and it were unjust and of evil consequence that if the granter of the Wodset should forbear to offer Security for 20 years upon his offer then the Wodsetter should be oblieged to Compt from the Act of Parliament It was answered that there was no inconveniency seing the Wodsetter might if he pleased quite the Possession and then was not comptable at all But if he would retain the Possession he could not refuse to compt for all bygones since the Act of Parliament The Lords having considered the Clause of the Act of Parliament found the Defenders only lyable from the time of the offer of Caution and Requiring the Possession and not from the date of the Act of Parliament seing the Clause bears they shall have by the Wodset which looks to be future only and seing the Wodsetters might have Builded or Planted for their own accommodation and therefore might rather reain the Possession then other Security Ogilby contra Eodem die THe like case was decided betwixt Ogilby and where this was further Represented that the Summonds could not be Sustained unless the offer had been made by way of Instrument before the Summons yet the Lords Sustained the offer instantly made to have effect ab hoc tempore but not from the Citation It was also further alleadged for the Defender that there was now no Caution offered It was answered for the Pursuer that there needed no Caution if the Wodsetter choised to retain the Possession because the Wodset it self was sufficient Security It was answered that they were not obliged to declare their option till Caution were first offered by the granter of the VVodset and the Statute behoved to be strictly Observed It was answered that there was here no detriment to the VVodsetter and the granter of the VVodset might be so poor as not to be able to find Caution The Lords found in respect of the Act of Parliament that Caution behoved to be offered and would not exceed the Terms thereof contra The Sheriff of Inverness Eodem die 〈…〉 being pursued for Theft-boot before the Sheriff of Inverness upon the
is here nothing but the very instancing of the Practiques without deducing the Case dispute and Reason of Decision neither can Skâ—ens conclusion take place in all the largeness he sets it down or else there shall need no more to infer a Marriage but that the Vassal was in lecto egritudinis albeit he had so continued of a Lent Disease above a year nothing should Capacitat him to Marry his Heir although he used all the Solemnities of Treaty Contract and Proclamation so that the Law de lecto â—gritudinis which is only introduced in favours of Heirs that their Predecessors shall not prejudge them shall now be made use of against the Heir that his Predecessor can do nothing to his benefite on Death-bed The Pursuer answered that the feudal Contract being of its own Nature Gratuitous and most favourable on the Part of the Superior that which he hath for his Fee being ordinarly the Service of the Vassal and the profit of the Fee when the Vassal is unserviceable through Minority reserving the Vassals own Aliment and the profit of the Vassals Tocher the Vassal ought not to defraud or prejudge him therein And albeit custom hath introduced an exception that the Tocher is not due to the Superior which was gotten during the Predecessors Life it being ordinarly consumed and applyed to the Predecessors use yet that by precipitation the appearand Heir should enjoy the same and not the Superior is against the Gratitude Amity and Obliegement of the Vassal neither is there any Parity in the Case of a Resignation to which the Superior consents or in the Case of an Appryzing wherein the Superior must Receive by the force of Law nor can the forbearance of sixty years infer a contrary Custome because this is a Case rarely contingent and oft times not known to the Kings Officers and though it were their negligence prejudges not the King by an express Act of Parliament neither is that a Custome which People use to do but Customes here are only such as are Judicial by the Kings Ministers of Justice whereanent Skeen expresly saith that this is praxis forensis and albeit the Decisions Adduced by him be not at large yet the circumstances of fraud here are so pregnant that they cannot be thought to have been more pregnant in any other Case where there was no Proclamation and where the Defunct was not only in lecto but was moribundus Physicians having so declared the common Reputation being that he would not Live and Dâ—ing de facto within a few dayes after and there being no singularity in the Match nor any pressing necessity of the Marriage for any other Effect The Lords found the Lybel and Reply relevant viz. That the Marriage was done when the Predecessors Father was moribundus and done wîthout Proclamation and that he Died within eight dayes after there being nothing alleadged to take off the Presumption of fraud upon these Circumstances Robert Miln contra Clarkson February 21. 1667. RObert Miln as Donatar to a Liferent Escheat having obtained a general Declarator insists now in a special Declarator for Mails and Duties It is alleadged for Clarkson that the Pursuer has no right to the Mails and Duties because he stands Infeft before the Rebellion It was answered any Infefetment Clarkson has is but a base Infeftment never clede with Possession till the Rebellion and year and day was run and so is null as to the Superiour or his Donatar It was answered that the base Infeftment is valide in it self and albeit by the Act of Parliament 1540. A Posterior publick Infeftment for Causes Onerous be preferable yet that cannot be extended to the Right of a Liferent Escheat or to a Donatar It was answered that by the course of Rebellion year and day the Superiors Infeftment Revives as to the Property during the Rebels Liferent and cannot but be in as good condition as any Posterior publick Infeftment and it was so decided March 19. 1633. Lady Rentoun contra Blackader The Lords found that the base Infeftment though Prior to the Denunciation not having attained Possession within year and day could not exclude the Liferent Escheat Helen Iohnstoun contra Robert Iohnstoun Eodem die IN the Cause betwixt Helen Iohnstoun and Robert Iohnstoun her Brother It was further alleadged for her that the Pursuit being a matter of breach of Trust and Fraud betwixt Parties so nigh as Brother and Sister the same ought to be Probable by Witnesses above exception and ought not to be referred to the Defenders Oath because it s offered to be proven that he did Depone before the Justices of Peace in Fife that he had never had the Bond in question and yet in this Process it is Judicially acknowledged in the Dispute that he hath the Bond and that he received it blank from the Pursuers Husband and it s now offered to be proven by his own Brother and other Witnesses above exception that the Pursuer delivered the Bond to him blank after her Husbands death which being a matter of Fact and Probable by Witnesses necessarly infers that the Bond was not redelivered to her Umquhil Husband The Lords before answer ordained the Witnesses ex officio to be examined upon the Pursuers delivery of the Bond after her Husbands Death Earl of Errol contra Hay of Crimunmogat February 23. 1667. THe Earl of Errol Pursues a Declarator of Redemption against Hay of Crimunmogot It was alledged Absolvitor because the Defender stands Infeft upon a Charter granted by Barcklay with the consent of the Earl of Errol proomni suo jure long after the reversion granted be Barcklay whereupon this Redemption proceeds It was answered for the Pursuer 1. That the Earl only consents and the Charter bears that the Sums were payed to Barcklay whose Right produced is a Wodset granted by the Earl of Errol and Hay of Vrie bearing an Expresse Reversion to any lawful Eldest Son of Hay of Vrie which failzieing to the Earl of Errol Ita est that the time the Earl Subscrived this Charter Hay of Vrie was alive and had Sons at least in spe so that the Earl of Errol had not thereby the Right of the Reversion and therefore his consent without any Sums received or any absolute Warrandice cannot extend to any superveening Right which he then had not actually but in spe et in apparentia 2ly The Earls consent to Barcklayes Disposition who had only the Right of Wodset not bearing irredeemable or absque reversione cannot take away the expresse Reversion of Barcklayes Right for albeit an Heritable Right be presumed Irredeemable presumptio cedit veritati and it cannot take away a Reversion where it is The Lords found that the Reversion granted in Barcklayes Right was not taken away by this Posterior Right and Charter but that the Earls consent imported only his Favour and Goodwil to transmit the Right to the Defender in respect of the alledgeances aforesaid Laird of May contra John Rosse Eodem
been declared at Buirran it does not infer that Lubeck being a free State at so far distance behoved to know the same much lesse that thereby there was a War betwixt the King and Denmark The Lords having considered the whole Debate were of different opinions whether the Victual could be called Counterband Goods simply or only when imported for relieving of Sieges or for the like War-like use and whetheâ— Ships could be seised in their return not having actually Counterband Goods in but especially whether they could be seised without evidence at the time of the seisure at Sea that in that Voyage they had in Counterband Goods but they did only Determine the first Reason and found it relevant to infer that the Lubeckers was in bona fide to continue the Commerce having Loused within to few days of the Kings Manifesto and that no other Act of Hostility before were to be presumed to have come to the knowledge of Lubeck or that thereby they were obliged to know that there was an actual War unlesse these Strangers knowledge were instructed by their own Oaths or that it was the common Fame notour at Lubeck before they Loused that there was War betwixt the King and Denmark and the Defenders offering to prove the same The Lords granted Commission to the Kings Resident at Hamburgh to receive Witnesses above exception and in the mean time ordains the Strangers Ship and Goods to be Inventared and Estimate and delivered again to the Strangers upon Caution to make the same or price forthcoming in case the Defender prov'd and prevail'd and with the burden of the Strangers damnage and expences if they betook themselves to this manner of Probation and not to the Oaths of the Strangers who were present reserving to the Lords the remanent Points to be Decided if the Strangers knowledge of the War were known In this Processe the Lords found also that competent and emitted before the Admiral could not operat against thir Strangers qui utuntur communi jure gentium Sir Harie Hume contra Tenents of Kello and Sir Alexander Hume Iuly 23. 1667. SIr Harie Hume having Comprized the Lands of Kello compearance is made for some Annualrenters who craved preference because their Infeftments of Annualrent was before the Apprizing It was answered that the Infeftment of Annualrent was base never cled with Possession It was answered for the Annualrenter that he produced an Antaphocha bearing the Receipt of a Discharge granted by the Debtor of the Annualrent which did instruct the Annualrenter was in Possession before the Apprizing by uplifting the Annualrent from the Debtor It was answered that the Sum was of fourscore Merks which was far within an Terms Annualrent and that it related only to the personal Bond and not to the Infeftment and that there was more then this Sum due of Annualrent by the personal Bond before the Date of the Infeftment to which only it behoved to be imputed It was answered that the Receipt being general in part of payment of the Annualrent he that payed the Sum might impute it to what Term he pleased and so would impute it to a Term after his Infeftment It was answered that before that Discharge the Pursuers Apprizing was led though no Infeftment thereon after which so small a part of the Annualrent could not be impute to any but the first Annualrent due and could not validat the base Infeftment The Lords found it sufficient to validat the base Infeftment notwithstanding of what was alleadged on the contrair Sir George Mckenzie contra Iohn Fairholm Iuly 25. 1667. SIr George Mckenzie Advocat having formerly pursued Reduction of a Bond granted to Umquhil Iohn Fairholm wherein he was Cautioner for his Father and Pluscardy upon this Reason that he then being Minor intertained by his Father as in his Family his Father was his Administrator and in place of a Curator so that Deeds done without his Fathers authorizing as Curator was null neither could his Father authorize him to his Fathers own behove as Cautioner for his Father which the Lords found relevant to annul Sir George's Subscription and now Sir George desiring the Extract of the Interloquitor It was further alleadged that Sir George was not only Cautioner for his Father but also for Pluscardy and that his Father might authorize him to Subscrive Cautioner for Pluscardy and therefore the Bond behoved to stand against him as Cautioner for Pluscardy It was answered that albeit his Father might authorize him as Cautioner for Pluscardy in a Bond apart wherein his Father was not concerned yet if his being Cautioner to Pluscardy were to the behove of his Father he could not authorize him therein but this Bond is of that nature for Pluscardy and the pursuers Father being bound Conjunctly and Severally Caution adjected for any of the correi debendi could not but be to the behove of both because in so far the Obligation was strengthned and the payment made by the Cautioner would liberat both and if Sir George should be Decerned Cautioner for Pluscardy it would Liberat his Father and so is clearly to his behove In respect whereof the Lords repelled also this new Defense and adhered to their former Interlocutor and found Sir George's Subscription for his Father and for Pluscardy to be to his Fathers behove and that he could not authorize him therein neither did he at all directly authorize him but in so far as they both Subscrived as Principal and Cautioner in one Bond. Mr. Iohn Philip contra Mr. Iohn Cheap Iuly 26. 1667. MAster Iohn Philip pursues his Tenents upon a Disposition granted by Michael Philip Compearance is made for Mr. Iames Cheap who Apprized from Michael Philips Heir who alleadged that the Disposition is null neither being Subscribed by the Disponer nor by two Notars for him for albeit it mention the Subscription of three Notars yet two of them Subscribed not at the same time with the third and neither of these two bear that they did Subscribe at command but that they Subscribed only for Michael Philip because that he could not Subscribe himself and albeit the Body of the Writ mention such Witnesses to the Command given to these Notars yet it is written with another Ink and does not appear to be Written at the time of the Subscriptions being the Hand-writ of him that Wrote the Body which mentions to be Written by him at Edinburgh and the Subscription is at Newburgh and because the Notars Subscription must give Faith to the Body of the Writ and not the Body to it It was answered that they offer to prove by the Witnesses insert that the Command was given It was answered that the Command being the most substantial point of the Subscription could not be proven or supplied by Witnesses for the Subscription of the Notar because the party could not Subscribe signifies nothing without the Command of the party for whom they subscribe and Warrand or Command in most ordinary Matters is not
to be led ten years after his Commission and now having taken Right to the Appryzing himself he cannot therewith Exhaust the price especially against this singular Successor having acquired bona fide after a Decreet of Suspension in foro contradictorio when the Defender had Right to the said third Appryzing and alleadged nothing thereupon The Defender answered that he cannot be Excluded from his Defense by the Decreet of Suspension as being competent and omitted the time of that Decreet because Competent is only Relevant against Decreets in ordinary Actions but neither in Reason nor Custom is the same Relevant against Decreets of Suspension there being this evident difference that in Decreets of Suspension the Reasons must be instantly verified but in ordinary Actions there are Terms assigned for proving Defenses and so it hath ever been practised by the Lords The Pursuer answered albeit it was anciently the Custom to admit Competent and omitted only against Decreets upon ordinary Actions Yet by an Act of Sederunt in Anno 1648. or 1649. the same was extended to Decreets of Suspension and albeit through neglect of the Clerks the Act hath not been Booked The Session being interrupted by the War shortly thereafter ensuing yet it is notorly known and was in practice Anno 1653. when the Decreet was obtained against this Defender whereupon the Appryzing proceeds and that practice was both just and necessar for if Decreets might be Suspended as oft as the Suspender can produce another Writ the most solemn Sentences should be made Insignificant for the ground of Excluding things Competent and omitted is not only that publick Sentences upon compearance are as valid as Transactions which upon no pretence can be Rescinded that Pleas be not perpetual but also because they are omitted dolo animo protrahendi litem which is ever presumed unless another Cause be assigned wherefore they were omitted as noviter veniens ad notitiam which is Sustained even as to Decreets in ordinar Actions and if in no case competent and omitted be allowed in Suspensions we shall have no more Decreets in ordinar Actions but the Defenders will still be absent and will Suspend as oft as they can find different Grounds as if of one Sum one have twenty or thirty several Receipts he will raise as many subsequent Suspensions which will at least serve for as many Sessions and though it should be alleadged quod dolo omisit it would not be Relevant so that if the Suspender can purge his Fraud either as not knowing of the Writ whereon he hath again Suspended or as not then having it presently in his power to instruct it would be sufficient which clears the difference betwixt Decreets of Suspension and other Decreets to operat no further than that in Suspensions the Fraud is purged by showing that the Writ was not ad manum which is not so in ordinar Actions where Terms would have been assigned to get the Writ and albeit the Lords might by modifying great Expences bar the multitudes of Suspensions they could hardly do it justly if of the Law it were no fault and it is known the Lords are neither in use of nor have time for such modifications The Lords superceeded to give answer as to this Point till the Compt proceeded as to the Particulars but the Lords had no respect to the alleadgance upon the Inhibition seing no Decreet followed nor upon the Decreet Arbitral which they found not Equivalent to an Assignation or Precept but the Lords found the Commission contained in the minute not to oblige the Defender as to any Diligence and therefore found that as to that Point he might acquire the third Appryzing which would have excluded him albeit he might have prevented it by Diligence Mr. Robert Swintoun contra Iohn Brown December 18. 1668. MArgaret Adinstoun being Infeft in Liferent in certain Roods of Land near Hadingtoun she and her second Husband grants a Tack to Iohn Brown thereof for certain years and thereafter till he were payed of 400. merks owing to him by the Husband after that Husbands Death she being Married to a third Husband there is a Decreet of Removing purchast at her and that Husbands Instance against Iohn Brown but the Husband did not proceed to obtain Possession by vertue thereof but brevi manu Ejected Brown whereupon Brown obtained a Decreet of Re-possession now the said Margaret Adinstoun having assigned the Decreet of Removing to Mr. Robert Swintown he Charges Iohn Brown to Remove who Suspends on this Reason that he having obtained Decreet of Re-possession after the Decreet of Removing upon the Husbands violence cannot now be Removed without a new Warning The Charger answered that the Decreet of Re-possession bearing to be ay and while this Suspender was legally Removed and that in respect he had been put out Summarly and not by the preceeding Decreet of Removing which having now taken effect he being in Possession the Charger may very well Insist that he may now legally Remove by vertue of the Decreet of Removing The Lords Repelled this Reason in respect of the answer and found no need of a new Warning The Suspender further alleadged that he cannot Remove because he bruiks by vertue of a Tack granted by Margaret Adinstoun and her second Husband The Charger answered First That the Tack being only for four years specially and an obligement not to Remove the Tennent while the four hundred Merks were payed which is not a Tack but a personal obligement which cannot defend the Suspender against Mr. Robert Swintoun the singular Successor 2dly The Tack is null being Subscribed but by one Nottar The Suspender answered that a Right of Liferent not being Transmissible by Infeftment but only by Assignation the Assigney is in no better case nor the Cedent except as to the Probation by the Cedents Oath 3dly The Tack is Ratified judicially by the Wife in the Court of Northberwick which is more nor the concourse of any Nottar 4ly If need beis it 's offered to be proven by the Wifes Oath that the Subscription was truly done by the Nottar at her command The Charger answered that the judicial Ratification cannot supply the other Nottar because the same Nottar who is Nottar in the Tack as also Nottar in the judicial Ratification which is but done in a Baron Court So it is but assertio ejusdem notarij no stronger nor it was neither can it be supplyed by Margaret Adâ—â—stouns Oath de veritate facti because her Oath cannot be received in prejudice of her Assigney and though her self were Charger the Law requiring two Notâ—ars till both Subscribe the Writ is an unsubscribed Writ and in all matters of this nature parties may resile before Subscription The Lords found the Tack valid against the Wife Subscriber thereof and her assigney ay and while the sum thereof were payed but found the Tack was null as being but by one Nottar notwithstanding of the judicial Ratification being by the same Nottar and
as were not constitute by Writ anterior to the Defenders Bond and as to any constitute by Probation of Witnesses for proving Bargains Merchant Compts and Furnishing wherein the Probation and Decreet are both after the Bond they cannot be said to be anterior Debts because they are not constitute till Sentence and albeit the Sentence bear the Debt to have been contracted before this Bond yet that cannot make them anterior Debts because Writ cannot be taken away by Witnesses proving an anterior Debt which would be as effectual against the Writ as if the payment thereof had been proven by Witnesses and the time of Bargaining or Furnishing being a point in the Memory and not falling under the Sense no body would be secure who had Writ but that Bargains and Furniture might be proven anterior thereto The Pursuer answered that his Reason was most Relevant and the constitution of the Debt is not by the Decreet or Probation but by the Bargain and Receipt of the Goods or Furniture after which no posterior Deed of the Debitor can prejudge the Creditors Furnishers and albeit in many cases Witnesses prove not and Witnesses are not admitted to prove where Writ may and uses to be interposed yet where the Probation is competent the Debt is as well proven thereby for the time of contracting as it is by Writ neither doth that ground that Writ cannot be taken away by Witnesses any way hinder for the meaning hereof is only that the Payment or Discharge of that Writ must be proven by Writ and it were a far greater inconvenience if after Bargain and Furniture any Writ granted by the Debitor though without an Onerous Cause should prejudge these Creditors The Lords Sustained the Reason and Repelled the Defense and found Debts constitute by Witnesses to be effectual from the time of contracting and not from the time of Probation or Sentence to take away any posterior Deed of the Debitor done without a Cause Onerous The Pursuer insisted in a second Reason of Reduction that albeit these Debts were posterior to this Bond yet the samine ought to be Reduced as being a fraudulent conveyance betwixt the Father and the Son kept up and latent in some of their Hands without any thing following thereupon to make it known and publick so that the Creditors having bona fide contracted with the Father having a visible Estate were deceived and defrauded by this latent Bond if it were preferred to them 2dly This Bond bears only to be payable after the Fathers Death and so is but donatio mortis causa and but a Legacy or if it be inter vivos it is much more fraudulent and latent 3dly Bonds of Provision for Love and Favour granted to children are accompted but as their legitime still Revockable by the Father and all Debts contracted by him are preferable to them The Defender answered that there was neither Law Reason nor Custom to evacuat or exclude Bonds of Provision granted by Parents ex pietate paterna to their Children upon accompt of their Fathers posterior Debt especially if the Bonds were Delivered for there is no ground for any such thing by the Act of Parliament 1621. which relates only to Deeds done after the Debt contracted neither is there any sufficient ground of fraud that the Bonds were not made publick or known there being no obligement upon Parties to publish the same and Creditors have less means to know the Debts of other anterior Creditors then of Children having a just ground to suspect that they may be provided and to enquire after the same neither doth the delay of the Term of payment import either fraud or that the Bonds were donationes mortis causa The Lords would not Sustatin the Reasons of Reduction upon the Act of Parliament 1621. or upon the general ground that posterior Debts were preferable to all Bonds of Provision but ordained the Pursuer to condescend upon the particular ground of fraud in the Case in question The Collector-general of the Taxation contra the Director of the Chancellery Ianuary 22. 1669. THe Director of the Chancellery being Charged for the present Taxation imposed in Anno 1665. by the Convention of Estates Suspend on this Reason that he is a Member of the Colledge of Justice which by the Act of Convention are exempted It was answered that the Members of the Colledge of Justice were never further extended then to the Lords Advocates Clerks of Session and the Writters to the Signet It was answered that as the Signet depends immediatly and chiefly upon the Lords of Session and Writters thereto are of the Colledge of Justice so the Chancellery depends in the same way upon the Lords who issue Orders thereto from time to time to give out Precepts direct to Superiours or to Bailliffs Sheriffs for Infefting of Supplicants and therefore the Director of the Chancellary being Writer in that Office must enjoy that Priviledge as well as the Writers to the Signet for albeit the Director gives out Precepts and Brieves of Course without the Lords Warrand so do the Writers to the Signet give out many Summons of course without Warrand The Lords found the Director of the Chancellary to be a Member of the Colledge of Justice and therefore Suspended the Letters The Collector general of the Taxations contra The Master and Servants of the Mint-house Eodem die THe Master of the Mint did also Suspend for him and his Servants on this Reason that it was their ancient Priviledge to be free of Taxations for which they produced certain Gifts by former Kings of Scotland and Decreets of the Lords It was answered that the Act of Convention gives only Exemption to the Members of the Colledge of Justice and Discharges all former Priviledges and Exemptions It was answered that Acts of the Convention must be understood salvo jure which takes place even in Acts of Parliament 2dly They produced a late Gift granted by the King in Anno 1668. Exeeming the Master and Servants of the Mint from all Taxation Imposed or to be Imposed which is past the Exchequer and Privy Seal so that the King who hath Right to the Taxation might Discharge the same to whomsoever he pleased The Lords in respect of the new Gift did Exeem the Officers of the Mint and Suspended the Letters The Daughters of umquhil Chrichtoun of Crawfoordstoun contra Brown of Inglistoun Eodem die THe Daughters of umquhil Crichtoun of Crawfoordstoun as Heirs appearand to him immediatly after his Death gave in a Supplication to the Lords desiring his Charter-Chist to be Inventared and Sequestrat Which the Lords granted But before the Commission came to the House William Lowry the Ladies Nevoy upon notice of the Order Rode Night and Day and prevented the same so that all the Writs were carried from Crawfoordstoun to Inglisstoun Thereafter the appearand Heirs raised Exhibition ad deliberandum against the Lady and others who produced three Dispositions by Crawfordstoun in favours of Brown of
whole production is specially insert It was answered that the Requisition was truly produced and that the omission of the Clerk to repeat it in the Production cannot annul the Decreet after so long a time without a Reduction thereof It was answered that albeit in favorabilibus the Lords may supply Defects upon Production ex post facto yet in odiosis such as Clauses irritant of Reversions the Lords ought not to admit the same The Lords found the Decreet of Declarator null Sir David Dumbar of Baldoun contra David Dick and others February 22. 1671. BAldoun pursues â—he Tennents of Bombie for Mails and Duties Compearance is made for David Dick who produced an Apprizing of the saids Lands against the Lord Kirkcudbright within year and day of the Pursuers Appryzing and craves to come in pari passu with the Pursuer conform to the Act 1661. anent Creditor and Debitor It was answered that by the same Act it is provided that where Comprizings are acquired by the appearand Heir or to his behove that the same should be satisfiable for such Sums as the appearand Heir payed and offers to satisfie the same It was answered that albeit the Act doth so provide as to the Estate that might belong to the appearand Heir it can extend no further But this Appryzing is not only of the Estate of Orchartoun but of the Estate of Kirkcudbright wherein Sir Robert Maxwel appearand Heir of Orchartoun hath no interest the Appryzing must be valide as to that It was answered that Kirkcudbright was but Cautioner for Orchartoun and that the Act bears that such Appryzings shall be satisfied by what the appearand Heir payed and such Appryzings being satisfied it is simply extinct and can have no effect Which the Lords found Relevant and seing David Dicks Appryzing is Assigned to Sir Roberts own Brother the Lords allowed Witnesses ex officio to be adduced for proving that it was for Sir Roberts behove William Gordoun contra Sir Alexander Mcculloch Eodem die WIlliam Gordoun pursues Sir Alexander Mcculloch for Spuilzying of certain Corns Who alleadged Absolvitor because the Defender having right by Appryzing to the Lands whereon the Corns grew did warn the Pursuer and obtained Decreet of Removing against him and thereupon dispossessed him and finding the Cropt upon the Ground he might lawfully intromet therewith nam sata cedunt solo especially where the Sower is in mala fide but here he was in Violence after a Warning and did continue to Sow after Decreet of Removing yea a part was Sown after he was Dispossessed by Letters of Ejection The Pursuer answered that by the Law and Custom of Scotland the Cropt of Corns or industrial Fruits are never accounted as pars soli or any accessory but are still moveable even when they are growing so that they belong not to the Heir but to the Executor and in case of a Disposition without mention of the Cropt albeit the Acquirer were Infeft after they were Sown and upon the Ground he would not have Right thereto neither doth mala fides or violent Possession alter the case for which the Law hath provided a special Remeid viz. the violent Profits but it can be no ground to meddle with the Parties Cropt brevi manu as accessory to the Ground for then the Parties should both lose the Cropt as pars soli and be lyable to the violent profits neither is there any Ground from the Warning nor yet from the Decreet of Removing which was Suspended before it attained full effect and the Defender continued in Possession of a House upon the Ground albeit he was put out of the principal House It was answered that the Decreet had attained full effect before the Suspension all the Pursuers Goods being off the Ground and he out of the Mansion-house wherein the Defender entered and brought all his Goods upon the Ground and though the Pursuers Mother being a valitudinary impotent Woman was suffered to remain in a Coat-house and the Pursuer with her upon that account that imports no continuance of Possession of the Land The Lords Repelled the Defense as to that part of the Cropt that was Sowen before the Appryzer entered by the Letters of Possession reserving to him the violent Profits for that time But found the Defense Relevant as to what the Pursuer did after the Defenders Dispossession and found the Defender only lyable for the Expences of the Labouring and the Seed as being eatenus Locupletior factus Lord Iustice Clerk contra Mr. Iohn Fairholm February 23. 1671. THe Earl of Levin being Debitor to Lambertoun in fourty thousand merks and having Infeft him in an Annualrent out of his Lands in security thereof Mr. Iohn Fairholm did upon a Debt due by Lambertoun Appryze the foresaid Heretable Bond and Annualrent which was holden of the Earl of Levin himself who was Charged upon the Appryzing but unwarrantably to Infeft Fairholm in the Lands whereas the Annual rent only was Appryzed and the Charge should have been to Infeft Fairholm in the Annualrent thereafter Fairholm did Arrest the bygone Annualrents in the Earl of Levins hands and after all did upon a Decreet against Lambertoun arrest the bygone Rents in Levins hand and Lambertouns Liferent of the Annualrent having fallen by his being year and day at the Horn the Justice Clerk as Donator to the Liferent and as Arrester competing with Fairholm did alleadge that Fairholms Appryzing being an incompleat Diligence and no Infeftment nor valide Charge thereon and having lyen over so many years the Arrester must be preferred for which he adduced a Practique observed by Dury the 14. of February 1623. Salicots contra Brown where it was so found and albeit Fairholm be the prior Arrester yet he hath done no Diligence upon his Arrestment whereas the Justice Clerk hath obtained Decreet and as Donator to the Liferent Escheat he is preferable for years after the Rebellion because the Liferent Escheat falling before any Infeftment or Charge on the Appryzing which was not used within year and day the Liferent excludes the Appryzer The Lords found the Appryzing preferable to the posterior Arrestment though no legal Diligence was done thereon for the space of nine years thereafter in respect the Appryzing being a Judicial Assignation required no Intimation and being prior it is preferable and they did not respect that single Practique the constant Custom since being contrary But found the Liferent Escheat preferable to the anterior Appryzing being without Infeftment or Charge as to the years after the Rebellion and preferred the Appryzer as to years preceeding Arnold of Barncaple contra Gordoun of Holm Eodem die THere being four Cautioners in a Bond and the principal Debitor having Suspended and found a Cautioner in the Suspension who having been Distressed and payed the Debt and having gotten Assignation from the Creditor Charges one of the Cautioners in the first Bond Gordoun of Holm who Suspends on this Reason that payment being made by the
alleadged that the Cause having lyen over several years must be wakened It was answered that there being a Decreet pronunced there was no more Process depending and so needed not be wakend It was answered that a Decreet though pronunced not being conditional to a day but being absolute and thereafter stopped in respect the stop takes off the Decreet the Process is in statu quo prius It was answered that the stop doth not recal the Decreet but only hinders the Extract thereof till the Supplicant be further heard and it is his part to insist in the Bill and that it would be of very evil consequence if stopped Decreets were recalled for then not only wakening would be necessar but in case the Parties should Die Transferance should be raised and seing wakenings are not requisite in concluded Causes much less after Sentence is pronunced The Lords found no necessity of wakening but allowed the Defender to propone what further he had to alleadge Laird of Balfour contra Mr. William Dowglasse Iuly 4. 1671. THe Earl of Airlies Estate being Apprized by Mr. William Dowglasse since 1652. after the Legal was expired Mr. William was Infeft and after his Infeftment the Laird of Balfour Apprized the same Land and thereupon pursues the Tennents for Mails and Duties It was alleadged for the first Apprizer that he must be preferred First Because he has the only Right having an Apprizing expired and Infeftment thereon before the Pursuers Apprizing was Led so that eo momento that he was Infeft upon his expired Apprizing the common Debitor was fully Denuded and there was no Right of Reversion or any other in his Person that could be Apprized thereafter It was answered that by the Act of Parliament 1661. between Debitor and Creditor It is provided that all Apprizings Led within year and day of the first effectual Apprizing shall come in therewith pari passu and therefore the Pursuer having Apprized within year and day after the first Apprizers Apprizing became effectual by Infeftment he must come in with him pari passu by the said Act which makes no difference of expired or unexpired Apprizings and by that same Act the Debitor is not so Denuded by the expiring of the Legal and Infeftment but that year and day is still allowed to subsequent Apprizers which in effect is a prorogation of the Legal as to Concreditors It was answered that the Act of Parliament is opponed bearing that Apprizings before or within year and day after the first effective Apprizing shall come in pari passu as if one Apprizing had been Led for all which necessarly imports the calculation of the year to be from the date of the first effective Comprizing and not from the date of the Infeftment or Diligence for the coming in as if one Apprizing had been for all must relate to the Decreet of Apprizing which as it is clear by the Letter of the Statute so also by the Narrative and Motive thereof bearing that Creditors did not know the condition of their Debitors Estate which might be Apprized before they could do Diligence whereas before they had only the benefit of Reversion for remeed whereof the Parliament brings in all Apprizings that are before or within a year after the first effectual Apprizing which before would have carried the sole Propertâ— and factione juris states all these Apprizings as Led in one day so that the remeed is sufficient by having a full year after the date of the Apprizing and Correctory Statutes are to be strictly Interpret and if the date of the Diligence be the Rule an Apprizing after twenty year might be brought to admit a new one deduced after all that time and not only so but the Mails and Duties would belong proportionally to the last Apprizer for twenty years before it was Led It was answered that the year indulged by this Act of Parliament to Concreditors must be from the time the Apprizing is effectual for the words of the Statute bears all Apprizings before or within a year after the first effectual Comprizing c. so that the year must not run from its being an Apprizing but from its being an effectual Comprizing and so from the Infeftment or Diligence neither is the inconvenience shunned otherwise for the only way then known for publication of real Rights was the Register of Seisings and not the Register of the Allowance of Apprizings which is only made necessar by an Act since and it is very easie to make simulate executions of Apprizings by taking away the Copies of Denunciation of the Ground and Citation at the dwelling House of the Debitor but if once a Seising be in the Register all provident men take notice thereof and albeit a Charge be sufficient in stead of a Seising which is not Registrat yet the ordinar way of compleating Apprizings which the Law notices is Infeftment and seing Apprizings are now rigorous Rights carrying any Estate without consideration of the value Acts Correctory of them ought to be extended ex aequo and the more wayes Concreditors have for getting notice of the Apprizing of their Debitors Estate the better neither are the evil consequences upon the other hand of any moment it being the first Apprizers fault if not his fraud that he obtains not Infeftment or does Diligence therefore for he may of purpose lye dormant not only till year and day run but untill the Legal expire and thereby cut off the Diligences of all other Creditors as in this very case the irredeemable Right of an Earldom shall be carried for 1500. pounds and all the other Creditors excluded so that the Apprizing is so far from making the case better that it makes it much worse as latent and fraudulent for it cannot be imagined that if the second Apprizer had known that the first Apprizing was Led but that he would have used Diligence within the year at least within the Legal for so soon as he saw a Seising in the Register he did immediatly Apprize The Lords preferred the first Apprizer and excluded the second and found that the year is to be reckoned from the date of the first effectual Apprizing and not from the Diligence whereby it becomes effectual In this Process the Lords Sustained this Reply that the first Apprizing was to the behove of the common Debitor or his eldest Son and that they would purge the same by payment of what Sums were truly payed for it to the Apprizer according to the said Act of Parliament 1661. without any Reduction or Declarator Helen Hume contra The Lord Iustice Clerk Eodem die THere being a Bond granted by the Laird of Rentoun to Helen Hume his Daughter obliging him and his Heirs to pay the Sum to her at her Age of ten years compleat with Annualrent so long as she should suffer the same unpayed and then subjoining this Clause that in case she should die unmarried the Bond should be void Whereupon the said Helen pursues the Lord
formal and solemn according to the custom then in uâ—e the posterior being upon Denunciation at the Mercat Croâ—s of the Sheriffdom and the other at the Mercat Cross of the Regality when Regalities were supprest by the Vsurpers and was led at Glasgow Iuly 15. 1670. Lady Lucia Hamiltoun contra Boyâ— of Pitcon An Apprizer was â—ound comptable for the whole Rents of the Lands he possest by his Apprizing both for his Ommission and Intromission and that not only till his Apprizing was satisfied but for all years subsequent that he continued to intromet with any part Ianuary 26. 1671. Cass contra Cunninghame An Apprizing coming in the person of the apparent Heir of the principal Debitor was â—ound extinct by satisfaction of the â—ums payed by the apparent Heir therefore summarly without Reduction not only as to the Estate of the apparent Heir but as to the Estate of a Cautioner â—or that Debt which was also Apprized February 22. 1671. Dumbar of Baldoon contra Dick. An Apprizer of an Annualrent was preferred to an Arrester although there was no Diligence upon the Apprizing for nine years before the Arrestment and that there was no Infeftment or lawful Charge on the Apprâ—zing in respect it was a prior judicial Assignation requiring no Intimation February 23. 1671. Lord Iustice Clerk contra Fairholme Apprizings deduced since Ianuary 1652. within year and day of the first effectual Apprizing were found not to be compted by a year from the Infeftment or Charge by which the Apprizing becomes effectual but from the date of the first effectual Decreet of Apprizing by the Act 1661. betwixt Debitor and Creditor Which bears That all such Apprizings shall be as if one Apprizing had been led for the whole Iuly 4. 1671. Laird of Balfoure contra Dowglas An Apprizing was found satisfiable by Exception or Reply as being to the behove of the Debitor or his eldest Son for the sums that were truly payed out by the Act of Parliament 1671. Albeit the Apprizing was Expyâ—ed Ibidem An Apprizing was Sustained though it proceeded on a Bond payable upon Requâ—sition and that the Claim of the Apprizing did make mention of the Requâ—sition seing the Requisition was done and is now produced and though the Messenger having met at the dyet appointed for the Apprizing did adjourn the Court of Apprizing till the next day in respect of a great Rain and that the place designed for the Apprizing was upon the open Field and though the place of the Apprizing was by diâ—pensation neither at Edinburgh nor at the Head Burgh of the Shire and past as a common Bill of course Iuly 12. 1671. Heirs of Lundy contra the Earl of Southesk and others In Apprizings Messengers are prohibite by Act of Sederunt to continue the dyer of Apprizings except upon absolute necessity that Parties interressed be not put to uncertain attendance and likewise diâ—penâ—ations for the place of Apprizings is prohibite to be past of course amongst other common Bills without being Read Ibidem An Apprizing acquired by the appearand Heir of the Debitor was found satisfiable by any other of the Defuncts Creditors by paying what the appearand Heir truly payed therefore albeit the appearand Heirs Disposition was before the Act of Parliament 1661. seing his Infeftment by which the Right real is Established in his Person and his Author was Denuded was after the said Act and albeit the Apprizing was not expired when the appearand Heir acquired Right but that it became to expire continuing in his Person and that it was Redeemable within ten years from the date of the acquiring but not from the expiring of the Legal Iâ—ne 21. 1671. Maxwel of Nether-pollock contra Maxwel of Kirkconnel An Apprizer was found not obliged to restrict his Possession to his Annualrent in favours of posterior Apprizers by the Clause for Restriction in the Act of Parliament 1661. which is personal and peculiar to the Debitor but seing the first Apprizer would not admit the posterior Apprizers to possess he should be comptable for the whole Rental from the time of the Exclusion Iuly 28. 1671. Murray contra Earl of Southesk and others ARBITERS got Warrand on a Supplication to Cite Witnesses before them Ianuary 6. 1670. Ker of Cavers and Scot of Goldenberry Supplicants ARRESTMENT was not elided because the sum arrested was discharged before the arrestment seing it appears the Discharge was not delivered to the Party in whose hands the arrestment was made nor none to his use before the arrestment December 13. 1661. Boyd contra Lairds of Niddrie and Edmonstoun An Arrester and an Assigney competing the Assigney was preferred because the Arrestment was loosed albeit the sum Arrested remained still in the same hands because the Arrestment was on a dependence and no Decreet thereupon against the principal Debitor Iuly 4. 1661. Raith of Edmonstoun contra Laird of Niddrie and Lady VVolmet Arrestment cannot be loosed without Caution super cautione juratoria Iuly 16. 1661. Colledge of St Andrews Supplicant Arrestment was found not to affect the Sallaries of the Lords and the Kings Pensions conform to a Letter and Act of Sederunt February 18. 1662. Sir Robert Murray contra Arrestment Execute on the Sabbath Day was found null by Exception February 3. 1663. Oliphant contra Dowglas of Dorâ—och Arresters Competing the second being on Letters of Supplement against a Party ouâ— of the Countrey was preferred to the first being at his Dwelling Place without Supplement Ianuary 20. 1665. Lord Lowre contra Givon Arrestment on a Bond not Registrate was found looseable as not being on a Dâ—â—reet of Registration or any other and after the loosing the Arrester was found preferable to a posterior Assigney seing the Money was yet in his Hand in whose it was Arrested February 7. 1665. Grahame contra Brown and Doctor Martine Arrestment being laid on in the hands of a Party who Entred in a Minute or Bargain of Land though he passed therefrom yet the price was ordained to be made forth-coming November 23. 1665. Campbel contra Doctor Beatoun Arresters having both obtained Decreet in one day were found not to come in equally but the first Arrester was preferred have done equal diligence February 1. 1666. Collonel Cunninghame contra Lyel An Arrester and Comprizer Competing for a Sâ—m whereupon Apprizing was led at the Instance of the common debitor whereupon no Infeftment followed yet the Arrestment upon the said first Apprizers debt was not â—ound habilis modus to make forthcoming the Sum Appryzed for but the second Appryzer was preferred to the Arrester February 22. 1666. Lockhart contra Lord Bargenzie An Arrestment was found to give Action after the death of the debitor whose Goods were Arrested without a new Decreet against any Repreâ—enting him seing he died at the Horn and so could have none to Represent him in mobilibus February 19. 1667. Givon contra Hume here the Defuncts Donator to his Escheat concurred An Arrestment of Annualrents laid on currâ—nte termiâ—â— was preferred
interest to call for production of the Defender her Sister â—â—d Fathers Retoures only for instructing of what was Ward and not their other Evidents December 20. 1669. Earl of Rothes contra Tutors of Buccleâ—gh Ward was found to take no place where the Defunct was denuded by an Appryzing and the Appryzer infeit albeit the appryzing was on a Bond granted to his Mother to the beâ—ove of her Son which was not found to be a fraudulent precipitation to exclude Ward it being granted in the Defuncts leige pouftie but so soon as the Appryzing was satisfied either in the Defuncts time or after his death the Ward of the Defunct's Heir took effect Iuly 20. 1671. Lindsay of Moâ—nt contra Maxwel of Kirkonnel A Ward was not found to give Right to the Donatar to cause an Appryzer Restrict to as much of the Rent as will satisfie his annâ—alrent that the Donator might have the superplus by the Clause in the Act of Parliament 1661. betwixt Debitor and Creditor which was only found proper and personal to the Creditor and his Heir Inter eosdem Ward and Marriage of a party killed in the late War was found not to be taken off by the Act of Parliament 1640. Declaring the Ward and Marriages of these that should die in that Service not to fall which Service was found to terminate by the next Pacification Annâ— 1641. here parties were agreed so that it was not acuratly debated or determined whether the salvo in the Act rescâ—nding these Parliaments during the Troubles except as to private Rights acquired thereby would reach to the exemption of Ward and Marriage by the Act 1640. being held an exemption during all the Troubles should be so interprete now which was not proposed Iuly 28. 1671. Hadden contra Laird of Glenegiâ—s WAKNING was not â—ound necessary where upon hearing parties Decreâ—ts were pronunced though it was stoâ—ed upon a Bill and lay several years over which stop imports not a recalling of the Dâ—creet but a stoping the Extracting of it till the parties might be heard upon the grounds of the Bill Iuly 1. 1671. Brodit of Lâ—thâ—m and the Laâ— of Riâ—cartoun contra the Lord Kenmuire WARNING was sustained at an old Kirk albeit Divine Worship was at a new Kirk not Erected by Parliament or though Erected if Hornings and Inhibitions used to be at the old Kitk Ianuary 24 1667. Earl of Argâ—le contra Campbel Warning not bearing that it was read at the Kirk door in ordinary time of Divine Service was admitted to be so mended at the Bar Ianuary 25. 1667. Inter eosdem Warning at the Kirk and House was sustained on fourly days though the party warned was out of â—he Countrey the Act of Parliament anent Warning requiring no further February 20. 1666. Mcbrair contra WARRANDICE was â—ound implyed of a Legacy in realiena scienter legata Iune 18. 1664. Murray contra Executors of Rutherfoord Absolute Warrandice was ordained to be contained in assignations of Bonds for an equivalent Cause as the price of goods and that it should bear expresly not only that the debts were due but that the debitor was solvendo Iune 24. 1664. Moffat contra Black Warrandice being absolâ—te in an Assignation by a Creditor to a Cautioner that he might get his relief bearing against all deadly as Law will was found not to extend to the Debitors being solvendo Iune 26. 1664. Hajcontra Nicolsâ—n Absolute Warrandice was found implyed in a Contract of Marriage wherein a Mother as Executor gave such a sum in full satisfaction of a Daughters interest and that only to warrand against the Defuncts seperveening Debt as to the superplus above the sum accepted by the Daughter but simply for all the portion unless the Mother would compt for all her Daughters share November 16. 1664. Fleming contra Fleming and her Spouse Warrandice was found to give recourse though thâ—re could be no present distress seing there was a clear ground of further distress by the warranders own deed granting double dispositions Iuly 1â— 1666. Burâ—et contra Iohnstoâ—â— Warrandice absolute in a disposition of Lands was found to extend to warrand Lands designed for a Horse and Cows Grass by a subsequent Law albeit the Law extended in self as if it had been of a former date with another abrogaâ— Law seing these Laws did differ from the former and did not revive it Iuly 12. 1667. Watson contra Law Warrandice being special by Infeâ—tment though base and ex intervallo and after the principal Inâ—eftment is effectual for recourse without declarator and being cled with possession of the principal Lands and can only be excluded by a possessory judgement upon 7 years after the eviction but by no possession how long soever before the eviction February 20 1668. Forbes contra Innes Warrandice in a Disposition bearing the seller holds Ward that therefore he should warrand the buyers who were to â—old Few of him and to relieve them of any Ward that should thereafter fall which was â—ound to be effectual against the Sellers Heir thoâ—gh denuded of the Superiority and not to burden the present Superiour Iuly 18. 1668. Colquhoun contra Stâ—uart of Barsâ—ub Warrandice in whatsoever Terms conceived was found to extend no furtâ—er than tâ—e sums paid out and the expences of the party Ianuary 26. 1669. Boyl of Kelburn contra Wilkie A WIF'S Contract of marriage was found a debt 〈◊〉 to other personal Crediâ—ors of the Defunct Februâ—ry 8. 1662. Crawfoord contra Earl of Murray A Wiâ—e and her freinds at whose instance execution of her Contract was provided was admitted to pursue a Reduction of a deed done by the Husband in prejudice thereof duâ—ing â—is life February 12. 166â— Leckâ—â— contra 〈◊〉 A Wife was found conveenable without calling the Husband he being 20. years out of the Countrey and she repute widow Iune 19. 1663. Hay contra Corstorphin A wifes oath was found to prove against the Husband where the matter was litigious by a process against the Wife before her marriage Iuly 19. 1663 Edgar contra Murray A Wifes infeftment was found valide till her Tocher were repaid albeit the Marriage was disolved wâ—thin year and day Iuâ—y 20. 1664. Petrie contra Paul A wifes furnishings even for her mournings for her husbands funerals being of that quality that should have mourning was found not to be the wifes debt but the husbands executors November 2. 1664. Murray contra Neâ—lson A wifes infeftment Stantâ— martrimonio being 〈◊〉 and beside her Contract was found not to be validat by her husband possession that his Creditors might not quarrel it by exception it being anterior to the infeftment December 7. 1664. Lady Craigie and Greenhead contra Lord Lour Vide Clause December 20. 1664. Young contra Buchannan A wife having her husbands bond in her hand and impignoraâ—ing in 〈◊〉 100. pound it was sustained against the husband upon presumption of her having warrand by having the bond February 4. 1665. Paterson contra Pringle A wâ—â—es infeftment in
the general Registers of Hornings and Inhibitions and of the particular Registers thereof in the Shire of Edinburgh during the Englishes time and found that during the said time there were no Hornings Booked for the space of five years and three moneths or thereby and that no Inhibition were Booked for the space of three years and six moneths and that they had called the Persons who were intrusted in that time as Clerks to and Keepers of the saids Registers of Hornings and Inhibitions and where they were dead they called and heard their Representatives but that one of these who had the Keeping of the saids Registers from the 5. of Iune 1652. to the 8. of September 1654. Called Thomas Freeman being deceased there can be none found to represent him which being taken in consideration by the Lords they Ordain the Hornings and Inhibitions to be Booked for the saids years by such Persons as the Lord Register shall appoint and allows them for their pains three shillings four pennies for ilk Leaf of the Book Written in such manner as the Lord Register shall appoint And the Lords Ordain the same to be payed by the Persons who enjoyed and possest the said Offices and were oblieged to have Booked the same or their Representatives And where they have none to Represent them by the Person who succeeded next in the said Office and his Representatives And Ordain Letters of Horning to be direct upon six dayes to the effect foresaid Orders for payment of the Dues of the Signet where Suspensions are appointed to be discussed upon the Bill Ianuary 24. 1679. THE Lords considering that they do frequently grant Warrands to the Ordinary upon the Bills to Discuss the Reasons of Suspension upon the Bill especially where the Charger desires the same And seeing that Warrand or Deliverance hath the effect of a Suspension past the Signet the Party ingiver of the Bill of Suspension being thereby secured against any further Personal Execution untill the Reasons of Suspension be Discussed It is just and reasonable in this Case that the Dues payable for affixing the Signet should be satisfied as if the Suspension had been past and exped Therefore the saids Lords do Ordain that before the Suspenders Process be heard upon the Reasons of Suspension before the Ordinary upon the Bills in order to the Discussing thereof there be payed in to the Clerk of the Bills or his Servant in that Office the Dues payable for affixing the Signet to the Suspension for which they are to be comptable to the Keeper of the Signet under the Lord Secretary and to make payment thereof as he shall call for the same And appoint the Clerk of the Bills and his Servants to keep a Note of such Bills of Suspension whereof the Reasons are ordained to be be Discussed on the Bills to the effect foresaid ACT in Favours of Intrant Advocats February 7. 1679. THE Lords considering a Petition presented to them by Robert Nairn Son to Mr. Alexander Nairn of Greenyards mentioning That the Petitioner upon a Reference of the Lords to the Dean of Faculty and the Advocats Examinators for taking Tryal of his Qualifications in order to his Admission to the Office of an Advocat having undergone both the privat and publick Tryal and Examination and thereafter applyed to the Dean of Faculty to assign him the Subject of his publick Lesson before the Lords the same is refused until the Petitioner make payment to the Advocats Box of 500. merks Scots conform to a late Act of the Faculty made to that purpose And the Lords considering that the Office and Imployment of Advocats being a liberal profession albeit they will not allow any sums of money to be imposed upon young men at their Entry to the Office and Station of Advocats yet they recommend to them to Contribute Voluntarly for a Library to be erected for the use of the Colledge of Justice ACT anent Executors Creditors November 14. 1679. THE Lords considering that it is imcumbent to all Executors by vertue of their Office to execute the Testament of the Defunctâ— by recovering his Goods and payment of the Debts owing to him for the behove and interest of the Relict Children or nearest of Kin Creditors and Legatars of the Defunct Therefore the saids Lords do Declare that Executors decerned and Confirmed as Creditors to the Defunct are holden as lyable to do Diligence for recovery of the Defuncts Goods and the Debts due to him Confirmed in the Testament or â—iked sicklike as other Executors Dative are holden to do by the Law and practick of this Kingdom And to the effect that Creditors be not unnecessarly intangled in the Execution of Defuncts Debts beyond their own satisfaction The Lords Declare that Executors Creditors shall not be oblieged to make a total Confirmation but only of so much as they shall think fit that there may be place for an Executor ad ommissa for the rest who shall be lyable to all Parties having Interest in the same way as principal Executors It is also Declared that Executors Creditors shall have license to pursue if they will make Faith that they are doubtful of the Validity Existence or Probation of the Debts of the Defunct for which they desire license the same being returned to the Commissars within such competent time as they shall appoint and upon Caution to Confirm as hath been granted in the Case of Licenses formerly ACT anent the Registration of Hornings November 19. 1679. FOrasmuch as all Letters of Horning are to be Registrate either in the Registers of the Shire where the Denounced Person dwells or in the general Register of Hornings keeped at Edinburgh and the Sheriffs Clerks and Keepers of these Registers in the Shires are by special Act of Parliament appointed to bring in those Registers to be marked by the Clerk of Register and when they mark the Registration of any Horning upon the Letters they should also insert therein the number of the leaves of the Register wherein the same is Registrate Which Order is renewed by Act of Regulation in Anno 1672. And the due observance hereof being of great Importance for the Benefite and Security of the Leidges Therefore the Lords do accordingly Ordain all Sheriff Clerks to bring in their Registers of Horning to be marked by the Clerk of Register and that in every Horning to be Registrate by them they insert at the marking thereof the particular leaf of the Register wherein they are Registrate and that the Sheriffâ— Clerk take in no Hornings to be Registrate in their Books but against Persons dwelling within their Shire And the Lords recommend to the Lord Register to take special care of the exact observance hereof And also Ordain the Clerk of the Bills not to receive any Bill of Caption or others upon any Horning not Registrate and marked in manner foresaid And Ordain Letters of Horning to be direct hereupon upon a Charge of fifteen dayes ACT against Sollicitation
obtained Decreet cognitionis causa and David being now dead he pursues James Chrystie as now appearand Heir to his Debitor for Adjudication of an Annualrent as belonging to the Defunct Debitor out of the Lands of Bassilie It was alleadged for the Defender absolvitor because that Annualrent was but base never cled with possession and the Defender stands validly Infeft singulari titulo The Pursuer answered that the Defense is not competent hoc loco when the Pursuer is but suo periculo craving Adjudication of his Debitors Right and cannot be forced to dispute the same till after Adjudication he use diligence for getting of the same but this Defense will be Competent whensoever upon his Adjudication he shall pursue The Defender alleadged a Pratique betwixt Sâ—haw of Sornbeg and the Lord Forrester wherein Forresters publick Infeftment was excepted in the Adjudication Yet the Lords shewed no Inclination to follow that Pratique and therefore Repelled the Defense and Adjudged Mr. Iohn Abercromie contra Anderson Eodem die MR. Iohn Abercromie as Assigney having pursued Anderson as Debitor for the Debt Assigned he alleadged no Process because the Assignation was posterior to the date of the Summons and Executions so that the Assignation being his sole Title the Process could not be sustained It was answered that the Defender had no prejudice and that the Cedent concurred It was answered that the Summons was not in the Cedents name and so his Concourse could operat nothing so that the Decreet thereupon would be null For in the like case the Lords last Week in the Cause betwixt David Hamiltoun and Iohn Kennedy and Symintoun Reduced an Appryzing led tvventy years since because the Appryzing proceeded upon a Charge to Enter Heir and some of the Debts vvere Assigned to the Appryzer after the date of the Charge As to which the Lords found the Appryzing null The Lords sustained the Defense and found no Process and had respect to the said Decision of Reduction of the Appryzing which they found to be as is râ—aâ—ed though it was alleadged that after so long time an Appryzer was not oblieged to produce the Letters of Appryzing or Charge to Enter Heir or Executions yet seing de facto these were produced and deduced in the Appryzing and mentioning the dates as aforesaid the same was Reduced pro tanto but there was no debate reported whether it should stand pro reliquo or how far it should extend seing the Appryzer as to the rest offered to prove it satisfied by Intromission Alexander Downy contra Robert Young Nov. 17. 1666. UMquhil Alexander Downy granted an Assignation to his Oye Alexander Downy of tvvo Bonds vvho finding that after his Goodsires Decease Mr. Iohn Hay vvas Confirmed Executor to his Goodsire and had given up these bonds in his Inventar but had not recovered payment He Confirms himself Executor ad non Executa to his Goodsire and pursues the Debitors for payment of the Bonds Compearance is made for Robert Young who alleadges that he is Executor Daâ—ive to Mr. John Hay vvho Execute Downies Testament by obtaining Sentence for payment of their Bonds so that the Bonds vvere no more in bonis of Alexander Downie but of Mr. John Hay and that the Testament being Execute by Decreet there could be no Executor ad non executa to Downie the first Defunct It was answered that the Testament was not Execute by a Decreet unless the Executor had obtained payment especially where the Executor was a meer stranger and was neither nearest of Kin Creditor nor Legatar The Lords found the Testament of Downie Execute by Hay by the Sentence obtained in Hayes Name and therefore found that Alexander Downie the Oye his Confirmation as Executor ad non executa null It was further alleadged that Downie being not only Executor but Assigney by his Goodsire the Assignation though it had been but a Legacy would have been sufficient against Mr. Iohn Hay who is the Cedents Executor and therefore is also sufficient against Young who is the Executors Executor and so represents the first Defunct Downie the Cedent It was answered that Young was not only legitimo modo the Executor but he is also Creditor of the first Defunct Downie in so far as he is Donatar of the Escheat of Iohn Hilstoun and thereupon has obtained Declarator and so is in the place of Iohn Hilstoun to whom umquhil Alexander Downie was Debitor by his Ticket produced whereby Downie acknowledges that he had in his hands Goods worth 6000 pounds belonging to him and Hilstoun in Copartinary and obliged him to be comptable therefore which is anterior to the Assignation granted to Downies own Oye for Love and Favour whereupon he hath Reduction depending against the Assignation as in fraudem Creditorum It was answered that the Ticket in relation to the Copartinary was not liquid bearing only an Obligment to be comptable with express Exception of desperat Debts and others The Lords found that in respect the Debt was not liquid Downie the Assigney ought to be preferr'd and get payment but Ordained him to find Caution that in case Young prevailed he should refound William Blackwood contra Adam Purves Nov. 20. 1666. ADam Purves pursues Reduction and Improbation of two Bonds alleadged granted by him to Ianet Baxter and of an Appryzing led thereon against certain Tenements in Edinburgh belonging to him and craved Certification contra non producta William Blackwood to whom by progress the Right is now come produces the Appryzing and the Extract of one of the Bonds whereupon it proceeded and alleadges no Certification against the Letters and Executions of the Appryzing after so long time the Appryzing being led in Anno 1621. and no Process of Reduction Rais'd till after the year 1650. Which the Lords found Relevant Likeas he further alleadged no Certification for not production of any of the principal Bonds because they were Registrat in the Registers of Session and the Principals were lost The Pursuer answered that there were pregnant Points of Falshood viz. Purves having gone and left the Kingdom in Anno 1618. And having been a Souldier Abroad till the year 1630. and these Bonds and the Appryzing thereon both in one Month and the Bonds granted to a Woman who had no such Estate but the Servant of a Waiter of an evil Fame and one Blair a Witness who was hang'd for Falshood The Lords refused Certification for not production of the principal Bonds but prejudice to the Pursuer to insist in his Improbation by these or other Evidences by the direct manner but they admitted Certification against that Bond the Extract whereof was not produced yet conditionally to a time that the Defender might upon the Adminicle of the Appryzing Insist to prove the Tenor. The Parochioners of Port Supplicant Decem 4 1666 THe Parochioners of Port having built a Manse upon the Gleib to their Minister where there was no Manse before and having valued the same according to the late Act