not Habile Witnesses And by the Custom except in casu puerperii to prove the Birth of Children to give the Husband the benefite of Courtesie and by the Canon Law Decretal De verborum significatione Cap. 10. And on the other part it is urged by the Civil Law they may be Witnesses except in Testaments and by the Canon Law they may be Witnesses in causa Matrimoniali and by our custom in Criminibus occultis domesticis and in atrocioribus as Murder Treason and Falsehood And in Answer It is urged that where the Civil Law is altered by the Canon that is to be followed and that Women cannot prove Marriage and ought not to prove the Dissolution and in causa Matrimonii Witnesses should be above all exception Cap. 1. de Consanguinitate And if any of the Canonists were of another Opinion it was because the effect of Divorce was separatio mensae Thori non vinculi and in Treason and such Crimes much is indulged ad vindictam publicam but not ad vindictam privatam when such pursuites are only for private interest And it is not presumed that the Kings Advocat will corrupt Witnesses and in whatever case either by the Canon Law or ours Women are admitted It is only ubi constat de corpore delicti which is not in Adultery where there is not a Child and in whatever case even when the publick is concerned VVomen are never admitted but to adminiculate And Quando concurrit unus testis habilis supplet inhabilitatem alterius And there being Fourty or Fifty Processes of Adultery within this Hundred Years VVomen VVitnesses were never received and they are not admitted in causa scandali before the Commissars to prove injuria verborum much less in Crimine Adulterii Obligements to employ Sums of Money for Provision of VVives IF a Person be obliged by Contract of Marriage to employ a Sum of Money to himself and his Wife the longest liver in Liferent and to his Heirs Quaeritur If the said obligement be not performed what course the Relict may take to affect thereupon his Estate having no Heirs Creditors being in competition of Diligence And if she may not pursue his Appearand Heir as lawfully charged making mention of the Obligement and that the Heir will not perform the same and that loco facti succedit interesse and therefore to hear and see him decerned to pay and make forthcoming to her the said Sum that it may be employed conform to the said Obligement and to hear and see it found and declared that the same Execution shall follow upon the Decreet by Adjudication or otherwayes as is competent to other Creditors If a Relict will be preferable to other Creditors A VVomans Jointure A Man getting a Tocher and giving a Joynture in order to his VVifes Aliment and she having a Joint Right with him If he become Bankrupt will it be altogether ineffectual dureing Life Ratio Dubitandi It is Alimentary and she is a most favourable Creditor and otherwayes it should be Societas Leonina VVoods WHen a Liferenter is Infeft cum Nemoribus Quaeritur Quid Juris VVhen the VVood falleth to be cut dureing the Liferent VVrack IF Ships or Barges belonging to this Kingdom do make Ship-wrack within the same Quaeritur VVhether the Representatives of the owners may claim the Goods and not the King Or any Infeft cum Wrack Ratio Dubitandi That by the Act of Parliament Ja. 6. Par. 9. Cap. 124. Ships belonging to these Nations where that Law has not place are to be in another case than the Ships belonging to the Nations where the Law anent Ship-wrack has place and it seems reasonable that the King 's own Subjects and their Ships should be in alse good case as the Ships of any Nation whatsoever and that their Ships and Goods should not be lost upon pretence of VVrack unlese there were a positive Law to that purpose and the foresaid Act implyes that it is Triste Lucrum and not to be owned but Lege Talionis Z. The case of the Admirality of Orknay and Zetland Represented in behalf of the King in Answer to the Duke of Lennox's Claime thereto BY a Charter under the Great Seal in anno 1603. His Majesties Grandfather did give and grant to Lodovick Duke of Lennox the Office of Admirality in these terms Totum integrum Officium Admiralitatis nostri Regni cum omnibus privilegiis honoribus Commoditatibus eidem spectantibus The said Charter is not only of the said Office But of the Dukedome of Lennox and of the Lands therinmentiond belonging to the same And as to the said Lands and Dukedome the said Charter is upon the Dukes Resignation the same having formerly pertained to him But as to the said Office of Admirality the same is not given upon the Dukes Resignation but is casten in in the Novodamus whereas the Clauses of Novo-damus do not usually contain as to the Subject Disponed more nor did formerly belong to the Resigner seing de novo dare renovare doth suppose a former and preexistent Right There are indeed Ratifications in Parliament of Lodovick Duke of Lennox his Right of the Office of the Admirality But it is to be considered that by ancient Laws and Acts of Parliament it is Statute that heretable Offices should not be given or Disponed in Fee or Heretage and if they should de facto be disponed they should be given with great deliberation and deliverance of the Parliament s appears by the Acts 43 and 44 King James 6th his 11th Parliament Ratifications do ordinarly pass in Parliament of course without voting the very last hour of the Parliament when it is to dissolve and how little weight should be laid upon the same it appears by the Ratification produced for his Grace the Duke of Lennox dated 23 of October 1612 which doth ratifie the Infeftment Granted to the said Lodovick Duke of Lennox of the Offices of Great Admiral of Scotland and of all the Isles and bounds thereof with the Offices of Lieutenendrie upon the seas and Collonellship and Justice General and Office of Judicatorie Criminal and Civil with all the Priviledges Dignities and Casualities of the same set down in the said Infeftment albeit no such Infeftment for any thing known is or can be produced and the foresaid Infeftment in the year 1603 Granted to the Duke of Lennox is only simple of the Office of Admiralitie Regni nostri without any mention of the Isles or of the Office of Lieutenendrie upon the Seas or Collonellship and Justice General and of the Office Judicatorie Criminal and Civil And the said Act of Parliament is blank as to the date of the Infeftment which is ratified whereas if there had been any such Infeftment of the Tenor and Extent foresaid it would have then been produced the tyme of the said ratification And if it had been then produced the ratification would have expressed the date of the same It Appears by certain
he cannot make voluntar payment in prejudice of a Creditor who has done Diligence Gibson Clerk D. 175. Kilbirny contra Cuninghame 24. July 1673. IN an Adjudication upon the late Act of Parliament The Lords modified the price to be 18. years purchase as to the certain and constant Rent and 9. years as to casual Rent of Coal Gibson Clerk D. 176. Murray contra The Tutor of Stormount 25. July 1673. BY a Contract of Wadset the Wadsetter being lyable to compt for the excrescence of the Duties more than should satisfie the Annualrent The Lords in a Process for Maills and Duties Found the Exception Relevant that the Pursuer was satisfied of the Sum upon the Wadset by his Intromission without Declarator D. 177. Ker contra Ruthven eod die THE Lords Found That the Estate of the Earl of Bramford being settled upon the Lord Forresters Son by Act of Parliament he could not have it but cum sua causa and the burden of his Debts Item They Found That the Earl having entertained his Grand-child the Pursuer was to be presumed to have done it ex pietate avita the Earl being a generous person and having an opulent Estate and his Grand-child having nothing for the time but the Debt in question whereof the Annualrent was provided and belonged to his Brother Monro Clerk D. 178. Creditors of Hugh Sinclair contra Annandale 26. July 1673. THE Lords Found That a Compryser upon Debts anterior to the Debitor's Rebellion being Infeft before Year and Day is preferable to the Donator of the Liferent Escheat Mr. Thomas Hay Clerk D. 179. Mr. John Bayn contra Caivie eod die THE Lords Found That a Tack being questioned as antedated to obviate an Inhibition was suspect being rased in the Date So that the same seemed to be vitiate and an other year superinduced And therefore was not a valide and probative Writ in prejudice of the Inhibition unless it could be adminiculate by some Adminicle before the Inhibition Mr. Thomas Hay Clerk D. 180. 2. June 1674. THE Kings Majesty having by two Letters to the Lords of Session presented Mr. David Balfour of Forret and Mr. Thomas Murray both Advocates to be Lords of the Session It was moved by one of the Lords that seing by the Law and Acts of Parliament these who are to be admitted to be Lords of Session should be tryed Therefore the Tryal should be such as is intended by the Law the very Notion of Tryal importing at least a serious if not a strict and exact way of Tryal This was moved because the way of Tryal had become of late so perfunctorious and dicis causa that it was ridiculous and in effect a Mock-Tryal Some of the Lords being appointed to examine these who were named by the King and after they had asked some trivial Questions having made Report That they found them qualified albeit it was not only known to the Examinators but to all the Lords and notour to the World that they were altogether Ignorant both of Law and Practique and did acknowledge it themselves not dareing to expose themselves to sit in the Outer house as Ordinaries they prevailing with others of the Lords to go out and officiate for them as Curats 1. It was urged that the Estates had considered the Interest of the Kingdom all Estates being concerned in that Judicatory that the Lords should be Persons of great Abilitie and Integrity seing their Lands and Fortunes and greatest Interests are the Subject of their Jurisdiction and Decisions and therefore it was provided by diverse Statutes and Acts of Parliament they should be qualified Persons and found upon Tryal to be such 2. His Majesties Letter required that the Persons now named should be examined effectually 3. By diverse Acts of Sederunt and in special one upon the Kings Letter for the time the way of Tryal is prescribed which is most exact 4. The Oath of Admission that the Lords should be faithful has and ought to have Influence upon all their Actions as Lords of the Session that they should be done faithfully and the Tryal of Lords for the Reasons foresaid being an important Act of Duty ought to be done faithfully and sincerely and cannot be done otherways without breach of Oath 5. To pretend to obey the Law and the Kings Letter which requireth an effectual Tryal in a way which is superficiary and evidently ineffectual it is a Cheat and Circumventio Legis which in others is hateful but in Judges who are Antistites Juris is abominable and inconsistent with the Honour and Integrity that should be expected from the Judicatory 6. If there were no Tryal at all the Lords would be passive if Persons not qualified should be named but being enjoyned to try effectually if they receive them without an effectual tryal they are not free of blame and are accomptable to God and his Majesty and to the Parliament To all these Reasons It was Answered That at this time the way of Tryal that had been for a long time should be continued at this time and that the Motion was upon some design The Mover did purge himself upon Oath that he had no Design but to do duty and did attest the President that before this occasion they had spoken often to that purpose and did represent that this is the fit time to put the Law and Statutes in execution The Persons named being Advocats and Persons presumed to be able to undergo the Tryal so that it cannot be thought that there is any thing of Design against their Persons That it cannot be denyed but the late way is abusive and antiquitas erroris or abusus cannot be thought and pleaded to be custom That in the Year 1629. the Lords by an Act of Sederunt had renewed and ratified all the former Statutes anent the Tryal and Admission of the Lords and ordained them to be observed That since that time the Troubles interveened and continued long so that Prescription cannot be pretended for an abuse which had occasioned so great prejudice and clamour It was Carryed That the Examination should be as it has been of late and upon the Report of Gosford and Craigie appointed to examine them they were admitted Gosford was of Opinion that there should be another way of Tryal D. 181. Bogie contra The Executors of the Lady Oxenford 4. June 1674. THE Executors of the Lady Oxenford being pursued at the instance of a Legatar did in the Compt before the Auditor give in an Article of Discharge viz. That the Expences of a Process at the Executors instance should be allowed It was Answered That if the Executor had not pursued that Process there was as much free Gear as would have satisfied the Legacie and the Executor had not prevailed and if they had prevailed the benefit would only have accresced to the Executor and not to the Legatars and therefore penes quem emolumentum c. and seing they would have had no benefite they should have no
the same case as if he had Comprysed himself so that as he cannot in that case neither in the other can he claim any Composition in respect the samen is granted only that the Superior should not be prejudged by obtruding a Vassal upon him against his will If by the First Act of Parliament anent Comprysings a Composition was due to the King Answer It is thought not There being a difference betwixt the King and other Superiours in respect the King is Pater Patriae and all the Leidges being his Subjects it cannot be said that he has any prejudice by the change of his Vassal and long after the said Act of Parliament Signatures were not past upon Comprysings but Comprysings lay at the Signet and were the warrand of Charters under the Great Seal To try when that Custom was changed and what warrand was for changeing the same A Person having Comprysed Lands and having granted Bond that he being satified of the Sums due to himself and of the Sums due to another person and that other person being relieved of his Cautionry for the Debitor The Compryser should denude himself in favours of the Debitor And the said Compryser having thereafter Disponed the Right of the Comprysing but with the Right of the said Backbond expresly provided in the Disposition and the Procuratory of Resignation therein Quaeritur If there be no mention in the Seasin that the Right is with the said Burden whether the Compryser will be still Lyable by the said Backbond to the Persons in whose favours it is conceived And 2do If the said Back-bond will militate against a singular Successour acquiring a Right from the Assigney to the Comprysing Answer It is thought both the Compryser and the person having Right from him with the Burden of the Backbond will be Lyable 2do A singular Successor will not be Lyable unless the said Provision that the Right should be with the burden of the Backbond be in Traditione and in the Seasin Quaeritur What way shall the Appearand Heir have the Right of the Lands Comprysed where the Comprysing is extinguished by Intromission If it be not by a Service as Heir to his Father Answer He may give in a Bill to the Lords or intent Action against the Superiour on that ground That the Lands are in effect redeemed and satisfied by Intromission And that the Superiour and the Creditor being conveened it ought to be declared that the Lands are Redeemed and the Creditor ought to renounce and the Superior be decerned to Infeft When a Person is denuded by Infeftment and yet the Infeftment and Disposition whereupon it proceeds is Reduceible upon the Act of Parliament as being in Fraudem Creditoris Quaeritur What course the Creditor shall take and whether he should first reduce before he Compryse Ratio Dubitandi That if he compryse the Debitor being divested as said is there is nothing in his person to be comprised Answer It is thought it is fitter to Reduce and then to Compryse Because after the Creditor has been at the Charges of Comprysing it may be there may be difficulty in the Reduction And yet upon other Considerations it may be fitter first to Comprise in Respect the Lands may be Comprysed both for the Debt of the Disponer and the Debt of the Person to whom the Right is given Infeftments upon Comprysing WHen there is a Clause in a Charter upon Comprysing That if the Comprysing expire another Infeftment should be taken within Year and Day otherways the Infeftment to be void Quaeritur What is the effect of that Provision if it may be purged 2do If another Compryser may object the said Nullity Conditio COnditio est adjectio quâ id quod dari aut fieri volumus confertur in aliquem casum suspendit obligationem Conditione impossibili adjecta Contractus est nullius momenti contrahentes Ludere videntur secus in sponsalibus ultimis voluntatibus in quibus favore Matrimonii ultimae voluntatis tales conditiones habentur pro non scriptis Christen de Sponsalibus quaest 14. Confession by Criminals IF a Confession be emitted and signed before the Judge in the Criminal-Court may the Pannal Retract and not adhere to it before the Assyse so that the Inquest cannot proceed on it as an evidence and clear Probation Minors having confessed hainous Crimes may they desire to be reponed upon pretence of their Age though they do not pretend and clear that their Confession was upon Error or Mistake Confirmation A Feu of Church-Lands being neither confirmed by the Pope nor King If the Confirmation by the King of Rights granted thereafter by the Feuer to be holden of the King will supply the want of Confirmation of the Original Charter When a Person is Infeft to be holden of the Superior and deceaseth and both the Disponer and Superior that was for the time are deceased yet the Superiority is conveyed to a singular Successor Quaeritur If after long time the singular Successor in the Right of the Superiority may confirm the said Infeftment So that the Heir of the Person Infeft though not confirmed in his own time may be Infeft as Heir to him by a publick Infeftment Ratio Dubitandi It cannot be said that his Father was Infeft by a publick Infeftment To consider therefore whether the Party infeft being infeft to be holden of the Superior may be said to be truely infeft holden of the Superior But that the Infeftment was not a compleat Right until the Superiors Consent and Confirmation was had whereby it did convalesce as if it had been from the beginning Or if there be no mid impediment And there is a Difference betwixt Vitiosum ab initio Incompletum illud nunquam confirmatur istud accedente complemento convalescit Whether or not Confirmation may be granted after the Death of the Disponer Vide Craig If a Disposition be granted to be holden of the Superior containing a Precept of Seasin and if it be confirmed by the Superior but before Seasin follow thereupon the Superior is denuded of his Right in favours of his singular Successor Quaeritur If thereafter Seasin may be taken on the said Precept Ratio Dubitandi That Res devenit in alium casum and the former Vassal not being denuded he remains still Vassal to the succeeding Superior So that by no deed without his consent a new Vassal can be obtruded to him Quaeritur If Infeftments being to be holden of a Superior may be confirmed after the death of the Person infeft Ratio Dubitandi Craig seemeth not to be clear upon that Ground that the Superior and Vassal should both consent So that the consent of the Vassal in taking the Infeftment and the Superiors in confirming the same be conjoined which cannot be the death of either interveening It is thought nevertheless that such Rights may be confirmed after the Death of the Receiver though their Consents cannot be conjoined which was only done and when the
he is Curator Bonis A Child being confirmed Executor to the Grandfather upon the Mothers side and dying without Issue and either Brothers or Sisters Will the Father have right to the Executory as Executor to the Child 2. What if the Child decease before the Testament be execute 3. Can the Father be Executor ad non executa to the Grandfather Mr. Andrew Marjori-banks Daughter Executors nominate though Strangers and not Universal Legators before King James his Act of Parliament had right to the whole Executory and since to the Third Quaeritur If they decease before Confirmation Will they notwithstanding have right as Legators If they be Confirmed and die immediatly before the Testament be execute Whether the Executor-Stranger will have right to the Third The Office of Tutrix ceaseth by her Marriage but not that of Executrix Quaeritur Quae Ratio Discriminis Answer She being in Tutela herself cannot be Tutrix to another 2. An Executor has not nudum Officium but is Heir in mobilibus and for that Reason a Woman may be Executrix though incapable munerum virilium Testaments appear to be Executed by Sentences Seing after Sentence the Executor may Assign Albeit quod est Cessibile may be Comprysed or affected with the Cedents Debt Yet if after Sentence the Debts and Goods be extant The Creditors Legators and nearest of Kin will be preferable to the Creditors of the Executor Because though they may seem to be secured by Caution yet the same is that the Inventar shall be made forthcoming and tutius est incumbere c. And the Executor is Haeres fideicommissarius or Curator bonis and if he Sell or Assign praesumitur That he doth so that he might satisfy Creditors Legators and nearest of Kin but where the same is evicted for his own Debt it is upon the matter Unjustice and Malversation Seing the Interest and Right of an Executor is jus anomalum Participium being partly considered in Law and constructed to be haereditas in mobilibus and partly Officium to execute the Defuncts Will if he Dye Tested and the Will of the Law if he Dye Intested And therefore if a Woman be Executrix albeit she be only Dative if she marry she is not in the case of a Tutrix and Curatrix Albeit it may be thought that an Executor Dative is Curator datus bonis and she ceases to be Tutrix and Curatrix if she Marry because these are only nuda officia But she continues still to be Executrix And yet if an Executor Dye before Execution his nearest of Kin will not succeed to him in that Interest as Executor to him So that he may be confirmed Executor to him in the Goods confirmed but there must be a Testament and Executor ad non Executa not to him but to the former Defunct Whereupon diverse Questions arise And first if an Executor nominate die after the Confirmation but before Execution will he have by the Act of Parliament the third of all the Goods of the Deads part or only in so far as the Testament is Execute Ratio Dubitandi Before the Act of Parliament the Executor had the third entirely viz. The Defuncts part without respect to the Execution But only the confirmation being in place of addition And by the Act of Parliament he is restricted to a third of that And on the other part since that Act of Parliament It is presumed according to that Law The Defunct intended only the third of his part to be given to the Executor in respect of the Trouble and pains he is at to Execute and recover bona Defuncti and therefore he should only have a proportion of what is Execute If the Executor nominate Decease before he confirm will he have any part of the Deads part Which will be cleared by an Answer to the former When the Procurator Fiscal is confirmed after an Edict served Whether will the nearest of Kin being Majors the time of the Confirmation and not owning their Interest be excluded So that they can have no Action against the Procurator Fiscal or Bishop for the Goods contained in the Inventar Quid Juris as to the nearest of Kin for the time And if he be Reponed whether will he have action of Compt and Reckoning or must he reduce the Confirmation so far as that he may be confirmed The Procurator Fiscal being satisfied of all Charges Ratio Dubitandi That the nearest of Kin is not nomen juris to succeed or to have any thing belonging to the Defunct unless he represent him which he cannot unless he be confirmed Executor Quid juris In the case of an Executor Creditor after he is satisfied will the nearest of Kin be excluded And if not what is the habilis modus to get a right setled in his Person Ratio Dubitandi In suffering the Creditor to be confirmed it seems that he has disclaimed his Interest and not without injury to the Memory of the Defunct And the Creditor being once confirmed the nearest of Kin cannot be confirmed And having Forefaulted his Interest it may seem quod indigno aufertur est Fisci quod nullius est est in bonis Regis Quaeritur When Testaments are Execute so that there is no place to a non Executa And if as to Goods whereof the Executor is presently in possession it be not fully Execute And as to nomina and Debts it be not Execute by Sentence though they be not uplifted Seing after Sentence the Executor may Assign And in that case may not the Executors Executor confirm the same as belonging to the Defunct Though after Sentence the Debt be in bonis of the Executor and confounded with his own Estate If there should be a Competition betwixt the Executors own Creditors and the Creditors of the Defunct or his Relict and Bairns Would not the Creditors and the Relict and Bairns of the Defunct be preferred to the Creditors of the Executor upon that Ground that they are not simply the Executors Goods but in Trust and is a fidei-commissum for the use of the Defuncts Creditors and his Relict and Bairns So that both the Executors Creditors and Fisk ought to be excluded upon any such Competition If the nearest of Kin will not be Executor Quaeritur What remedy will be competent to the Creditors not of the Defunct but of the Executor Seing there is an Act of Parliament in case of an Heirs not entering But not in the case of an Executor in behalf of Creditors If the Commissars should confirm the Creditor of an Executor nominate and the Executor decease will the next nearest of Kin have Action against the Executor Dative to be Comptable And whether that Executor will have the priviledge of an Executor Creditor And if he may be pursued at the instance of other Creditors who are not Creditors to the Defunct An Executor being nearest of Kin and confirmed but immediatly dying Quid juris will his nearest of Kin be confirmed Executors ad non
pactum non intervenerit praevia tamen denunciatione ut debita solvat licet pignus alienare cessante debitore in solutionem per biennium post denunciationem Perez Lib. 2. Tit. 8. Plenishing If a Wife be provided to a part of it BY Contract of Marriage a Wife is provided in satisfaction of Terce Third or other part of Movables except the half of the Plenishing of the House the time of the Husbands Decease Whereto it is provided she shall have Right Quaeritur If there be no Free Gear will the Heir be obliged to free the half of the Plenishing Ratio Dubitandi The Contract bears she should have Right and she is in the same case as if her Husband had disponed for an Onerous Cause the Plenishing he should have the time of his Decease And on the other part it seems this Provision should be understood Conditionaliter if there be free Goods And the Clause being an Exception from a Renunciation both the Renunciation and Exception from it ought to be of the Regula and of that which would belong to her if she were not excluded which could only be the free Gear If the clauses do not bear besides the Heirship Quaeritur If she will have Right to the plenishing without Deduction of the Heirship Eadem Ratio Dubitandi Possessor PRocessum ligitiosae possessionis Hispani Interim Galli Recredentiam Belgi Provisionale remedium alii processum informativum appellare solent Budaeus litem vindiciariam Thes Bes in Litera I. 29. verbo interim mittel Possessor bonae fidei fructus consumptos suos facit absolute extantes vero Dominocedunt Possessor vero malae fidei nec consumptos nec extantes suos facit sed Dominus extantes vindicat consumptos vero condicit condictione sine causa Perez lib. 2 Tit. 5. Poinding of the Ground A Lord of Erection having Disponed Teinds and the Reddendo bearing a Sum to be payed for a proportional relief of the blensh duty payable by the Lord of Erection and certain Bolls of Victual to be payed also for his relief to the Minister Quaeritur Will the Minister have action for poinding the ground 2do What will the Superiors poinding the Ground import A Decreet of Poinding the Ground being got against the Heretor for the time and the Tennants Quaeritur If after the Death of the Heretor the Lands may be comprysed for the Bygones from the Appearand Heir without a Decreet of transferring or a new Decreet Answer It is thought there is no need of any other Decreet the Decreet being Really founded which may be recovered against an Appearand Heir and put in Execution by Comprysing or poinding against him Prerogative IF the Question betwixt Roxburgh and Lothian should be determined with respect to his Majesties Prerogative being the Fountain of Honour It is thought that His Majesties Concessions whatever the Subject be should be judged Jure communi And that Jus quaesitum whether as to Honour and precedency or any thing else cannot be taken away upon any such pretence The Prerogative is instar littoris which is defined quo fluctus Hybernus exaestuat So that as the Sea does not go beyond the Shoar when the Sea is most full so the Prerogative and Plenitudo Potestatis does never go beyond Law which is a great Littus and Boundary of just Power The Royal Prerogative is acknowledged and asserted by diverse Laws and Acts of Parliament of this Kingdom But how far the Extent of the same may reach is a point of State and Policy of the highest nature and importance and not to be defined by the Opinions of Lawyers but by the Highest and Legislative Authority The Royal Prerogative is not only asserted in the general by the Laws of the Kingdom but diverse and great Powers Rights and Priviledges belonging thereto are in special declared by diverse Acts of Parliament both in Relation to the Government and in Relation to His Majesties Interest and Questions and Causes betwixt Him and His Subjects As the Power of Calling and Dissolving Parliaments The Choising and Appointing Officers of State and Commissioners and Judges To make War and Peace And that there can be no Meetings to Treat or determine in Matters of State without His Majesties Authority and Warrand And that upon no pretence there can be any Rising in Arms without His Warrand And His Right to Custums And Power to grant Remissions for the Highest Crimes And that the Negligence of His Officers cannot prejudge Him And albeit by the Common Law the Eldest Superior is preferable yet when Lands are holden of diverse Superiors Ward the Marriage of the Vassal which otherwayes would belong to the Eldest Superior doth pertain to the King tho as to the Vassal his latest Superior And by custom albeit the going to a Miln for never so long a time being facultatis doth not import Servitude without a special Astriction yet the repairing to His Majesties Milns by the space of Fourty Years doth induce a Servitude without any other constitution As to which and other points of the Prerogative explained by Law and Custom Lawyers may and ought to give their Opinions in Law But as to Lawyers and Juris-consults it is said Turpe est sine lege loqui ubi leges silent they cannot but be silent And the Laws of Scotland which ought to warrand the Resolutions and the Opinions of Lawyers in Questions concerning the State and Government are only the Statutory Law and Acts of Parliament and the common Law and custom and undenyable practique of the Kingdom As to the Civil Law of the Romans it was only the Municipal Law of that People And by reason of the great Equity of it in Questions de Jure privato tho it has not the force of Law with us yet it is of great Authority and use in cases not determined either by statute or custom But as to Questions of State and Government the Civil Law is of no use with us in respect the Laws of all Nations concerning their State and Government are only Municipal and the Constitution of the Respective States doth varie both from that of the Romans and for the most part each from another So that any Questions concerning the same cannot be solidely or warrantably Answered upon Principles or Reasons brought from any Law but the constitution of the Government and Laws and Customs of the Nation and Kingdom concerned It is conceaved That when the Opinion of Lawyers is asked Res should be integra and they should be at liberty to give their Opinion freely and without prejudice which they cannot doe after His Majesty has any way predetermined them by declaring his own Royal Will and Pleasure As to that Question What can be said in Law in defence of these who have acted contrary to Law in Obedience to His Majesty or upon his Royal Dispensation if they should be questioned in the time of Succeeding Kings It is Answered That upon the Grounds foresaid
nothing can be said positively to secure them from Question either by our Law or Custom The said case being not mentioned nor determined by either But it is to be thought and presumed that His Majesties Prerogative being asserted by the Laws foresaid and His Majesties owning that power to Command and Dispense as a part of His Prerogative and they conceiving that it was not their duty to dispute His Majesties Power Succeeding Princes will not think it their interest to be severe against any person for exceeding in Obedience to their Royal Predecessors Prescription IF a Feu-Charter of Kirklands not confirmed by the King or Pope with Seasins thereupon may be a Title to warrand Prescription Temporary Prescriptions as in case of House-Mails Servants Fies Ejections c. If they run against Minors The Vassal retouring his Lands to be in Non-entry Fourscore Years Quaeritur If he may object Prescription quoad the retoured Non-entry Duties Seing after the Years of prescription he confesseth the same to be due Temporalia ad agendum sunt Perpetua ad excipiendum If His Majesties annexed Property does prescrive If Prescription run against these who were Forefaulted by the Usurper Qui non valebant agere Found for the Negative Lauderdale contra Tweeddale That Lauderdale his Father and Good-Sire non valebant agere Because upon his Fathers Resignation Queen Ann was Infeft in Liferent and might have excluded them during her Lifetime and though he might have intented a Declarator yet that being such an Action as could not bring him to possession he was not obliged to intent it This Reason appears not to be without some Question seing if there were a Liferenter and Fiar and the Fiar should not prevail with the Liferenter to join in an Action for interrupting prescription the Fiar should be without remedy if he would not interrupt by Declarator and if a Declarator do interrupt it cannot be said that non valebat agere 2do A Declarator would have brought the Lord Thirlestoun to Civil possession at least so far as it would have been declared that the Queens possession was his and by vertue of the Right thereof he was Fiar And if the Queen would not owne the possession to have been by that Right she should have been forced to remove So that by that Action they might have attained natural possession Before the Act of Parliament 1621. anent Comprysings the Legal ran against Minors which argues that the Temporary Prescriptions of SpuilÈies for House-Mails Removings c. run against Minors If there be a difference betwixt the time of prescription in England and Scotland Whether is prescription inter decisoria Item If Prelates provided before the Act of Parliament 1585. against Dilapidations may notwithstanding thereof set Tacks without hazard Seing the Act seems to militate only as to persons provided thereafter If a Feu-set contrary to the said Act against Dilapidations may be a ground of Prescription Ratio Dubitandi That by the said Act the Patrimony of the Prelates is extra Commercium and is of the nature of the annexed property quod non est alienabile non est praescriptibile Vide Dilapidation in litera D. If in all cases when an Obligement or Interest and Right is in the Defenders Right whereby he bruiks may he alledge Prescription as he cannot do in the case of Reversion there being Eadem Ratio What is the Reason that Reversions Registrate do not prescribe Seing Bonds Registrate do notwithstanding prescrive If a Faculty granted to a Person as v. g. to the Disponer of Lands and a power to Dispone the samen or to Redeem upon a penny doth prescrive being granted apart If Prescription being alledged against a Bond it be Relevant to reply and to offer to prove by the Excipients Oath that to his knowledge the the Debt is due and true and not satisfied If a Reversion be granted only for five Years Quaeritur If in that case it prescribes against Minors Vide de Retractibus Gentilitiis if they prescribe against Minors If a Minor acquire Right to a Comprysing near expired singulari titulo will the Reversion be prorogate and if there be a difference betwixt a Minor succeeding as Heir or otherways Singulari Titulo Prescription against the King THE Act of Parliament 1617. Militateth against the King as to real Actions when the Defender has prescribed a Right by possession founded upon the Rights therein mentioned as appears by the express words and the ground of that Prescrption being not so much odium negligentia non petentis as favor possidentis which is the same as to the King as to another But in that part of the Act anent the prescription of Personal Actions there is no mention of the King and he cannot be said to be negligent and it is declared by Act of Parliament that the negligence of his Officers shall not prejudge him Quaeritur therefore if Prescription in that case be competent against the King Verba semper quandocunque designant temporis infinitatem si in pacto de retrovendendo adjiciatur haec clausula ut quandocunque venditor ejus haeredes velint pretium offerre Praedium recipere possint non obstante triginta annorum praescriptione Jus redimendi semper in perpetuum competit nisi possiderit Emptor pro suo vel contradixerit Reluitioni ab eo enim tempore incipit praescriptio In Contractibus enim nullum verbum debet esse otiosum verba autem quandocunque c. essent otiosa si non operarentur Thes Bes litera I. verbo 5. Je und allwegen p. 423. 424. Princeps potest privato privilegium concedere ut ipse solus in aliqua parte maris aut fluminis publici piscari possit aliosque ne id faciant prohibere Loca publica quae Jure Gentium communia sunt praescribi possunt tanto tempore cujus initii memoria non existat praescriptio enim immemorialis vim habet privilegii seu Tituli potius praesumpta concessio quam praescriptio dicitur praesumptio ex ea exsurgens est Juris de Jure nec admittit probationem in contrarium Jus Flaviatile p. 260. n. 261. Praescriptio impium praesidium Novel 9. Respublica municipium non restituitur adversus praescriptiones temporales quae Jure veteri respuebant restitutionem vide Frisch Tom. 2. Exercitat 2. n. 58. sequent Jure Novel praescribitur contra Rempublicam Civitatem Triginta vel quadraginta ann ibidem n. 63. Praescriptio Conventionalis a Defuncto coepta currit contra Rempublicam quae ei successit Ibidem n. 65. In Praescriptione Jure Civili bona fides requiritur ab initio nec desinet usucapiens acquirere licet mala fides superveniat Jure autem Canonico bona fides requiritur toto tempore Requiritur etiam Titulus id est justa causa possessionis habilis ad transferendum Dominium Res furtivae vi possessae Jure
Provisionis ita dispositis ut multi sint gradus Substitutionum eo multis aliis casibus tutius esset aequius Instrumentum illud in publica custodia esse ut sic omnibus quorum interest consultum sit quam Instrumento penes unum retento ejus negligentia vel dolo reliquorum Jus periclitari Praeterea Creditore penes quem Instrumentum est decoquente cum Debitore suo colludente ut id genus hominis fallax est facile esset illudere Creditoribus suis qui Instrumentum istud per adjudicationem sibi addici obtinuerunt Instrumento in causa Falsi consulto intentata haud exhibito Mihi autem in isto Recessu unice satagenti quomodo prodesse utcunque possim videtur omnibus quorum interest consultum fore incommodis commentis quae ultro citroque adduci possunt obviam iri si tempore confictionis Instrumenti ejus Copia aut exemplum describatur ab eo qui Instrumentum ipsum scripserat ei subjiciatur breviculum seu brevis nota ab eodem scriptore scripta iisdem partibus Testibus Subscribentibus ejusdem Datae eo qui sequitur aut simili tenore Nos vero obligati scilicet in Instrumento agnoscimus Copiam suprascriptam verum esse integrum exemplar Instrumenti seu Contractus inter nos confecti ejusdem datae tenoris volumus consentimus ut virtute clausulae Registrationis in dicto Contractu insertae nec non virtute praesentium ut praedictum Instrumentum coram curia exhibitum in Libris Curiae Registretur habiturum vim ad effectum suprascriptum nec non volumus consentimus quod extractum praefati Instrumenti in omnibus causis etiam Falsi Improbationis exhibitum una cum isto Breviculo sufficiens erit efficax ad omnes effectus haud secus quam si Instrumentum ipsum exhiberetur aut productum satisfaceret Registrantur Instrumenta non tantum Executionis sed custodiae causa ad futuram rei Memoriam ut plaerumque fit in Acceptilationibus Apochis quando concedens ad nihil faciendum obligatur adeo ut Executione haud opus sit ne tamen intercidant consentit ut ad futuram rei memoriam in libris actorum inserantur asserventur Registrantur etiam Instrumenta nec Executionis nec custodiae sed Insinuationis ergo idque summa ratione necessitate nedum utilitate unusquisque enim scire debet conditionem ejus cum quo contrahit juxta regulam Juris Id autem scitu difficile est isto tempore Candoris Bonorum Morum effoeto Fraudis autem feraci saepe enim eveniebat ut comparatis praediis ut optimis maximis nec cirta justum maximum pretium emergerent qui sibi Jus in iis vindicarent vel Dominii vel Retractus seu Reversionis sic iis vel evictis vel modica pecuniula redemptis Emptor delusus tam Terris quam pretio carebat actione adversus venditorem plaerumque inopem prorsus inani Scire igitur expedit conditionem rei de qua contrahitur an sit penes Disponentem penitus sua nec aliena sit vel Jure Dominii nec Hypothecae nexu aut annui reditus aut alio onere gravata aut Retractui aut Reversioni obnoxia Nec minus cognitu necessaria est conditio vendentis aut alterius contrahentis licet enim Dominus sit Dominium sit potestas de re sua Disponendi Juxta regulam Juris quilibet est Rei suae Arbiter subjungitur tamen in ista Regula Nisi Lex obstet Lex autem obstat Dominis ne de rebus Terris suis libere disponant Legum vinculis forte praepeditis Inhibitione scilicet quando in rem ad instantiam Creditorum inhibiti sunt aut in rem suam suorum haeredum iis bonorum suorum Administratione interdictum est aut quando Rebelles Denunciati sunt Exleges De quibus impedimentis alibi suis locis disseruimus Ut autem incommodis ex ignorantia tam conditionis rei quam personae obviam eatur utque conditio utriusque innotescat plurimis Constitutionibus Legibus enixe cautum est If a Disposition may be Registrate the Disponer being on Life but the receaver being Deceast Ratio Dubitandi Registration is to the effect it should have the force of a Decreet and there can be no Decreet in favours a Dead Person Regum Contractus COntractus Principis habet vim Legis quoad observantiam immo potentior est Lege intensive quia ligat successorem quod Lex non facit secus vero extensive quia Lex ligat omnes Contractus Regius etiam ex lege successor factum Principis antecedentis principali nomine peractum ejus licet non sit haeres ratum ut habeat conveniens est alioqui publica fides dignitas principalis collaberetur Thes Besold p. 549. Reges absoluti non litigant depossessionati Le Roy plaide saisi Thes Bes p. 560. Relief of Cautioners IF Cautioners finding the principal to be in a worse condition may pursue for Relief before Distress At least to be secured out of his Estate Relocation A Tack being set and the Setter being deceased Quaeritur If after his decease and no person being Heir to him the Tacksman may be said to bruik per tacitam Relocationem seing there is none that can be said to be Relocans Reluitio seu Retractus INter Juris Interpretes celebris est Contraversia de Jure reluendi seu Retractus quod apud nos Reversio dicitur an ei praescribi possit qui affirmativam tuentur regulam qui negativam exceptionem Sententiae suae fundamentum adducunt Regula est Omnes actiones omnia Jura etiam maxime longaeva longissimo tempore id est lapsu quadraginta annorum praescribi extingui Exceptio est Ea quae sunt merae facultatis haud praescribi Apud nos lis ista sopita est Constitutione enim Regis Jacobi Sexti Act. Parl. 12. 1617. Cavetur omnia Jura Contractus inter alia Reversiones Retractus ex iis actiones 40. annis praescribi Exceptis Reversionibus quae sunt in corpore Juris investitura excipientis iis etiam quae insinuatae in Archiva publica regestum relatae sunt quibus casibus cum nulla subsit suspicio falsitatis ut ait Lex ista actiones ex iis statuitur esse perpetuas Sed cum Contractus Chirographa seu obligationes praescribantur licet insinuatione publica in archivis sint qui fit ut ubi eadem par est ratio dispar Jus sit Remissions IF the Exchequer when Remissions are not given by the King may grant Remissions sine causae cognitione upon a Letter of Slains If Remission can be given for Murder Answer The Kings Power is not limited but in Justice Remissions cannot be given but in the cases that by the Divine Law
and Law of Nations the benefite of the Sanctuary may be competent Whereas by Act of Parliament there is no Sanctuary for fore-thought Felony Renounciation QVaeritur If the Father or his Executor may urge the Daughter who has renounced to confirm her self Executrix to her Mother to the effect her Renounciation may be effectual Vide of nearest Kin. Quaest 4ta litera K. Renounciation by Daughters at their Marriage IF a Man have a Son and Two Daughters and both the Daughters Renounce all Executry Debts Goods and Gear whatsomever either provided to them or which may fall or pertain to them by the Decease of their Father or Mother Quaeritur If the Son will be both Heir and Executor If a Person charged to enter Heir and renounceing may notwithstanding be served Heir Answer He may be served and no other person or Creditor can oppose upon pretence of the Renounciation seing Charges to enter Heir are Personal Diligences as to the Chargers only and Renounciations in obedience thereto do militate only in favours of the Chargers If the Charger may oppose Answer If he has any prejudice or Interest he may oppose but it is thought he can have none seing notwithstanding of the Service what is done upon the Charge or Renunciation will be effectual and the Renounciation is actus involuntarius for Obedience and with us there is not Locus successorio Edicto And it were hard if Haereditas should be Opulenta that the Heir could not Enter Renunciatio Juri Publico REnunciare potest Debitor immunitati Nundinarum quia licet favorem publicum habeant nundinae principaliter tamen de privatorum commodo agitur regula communis est Quoties privato favori Lex aliquid introducit principaliter licet secundario publicam causam annexam habeat Renunciari huic favori posse Thes Bes Litera M. 43. P. 631. Res Fiscales res privatae Regis REgalia res Fiscales res privatae Regis magno intervallo inter se distant â—ae enim sunt privati Patrimonii quae Principi ratione personae non ratione dignitatis obveniunt At quae Rex ex suis provinciis ditionibus ut Rex vel Princeps percipit ea ad ipsius Patrimonium Fiscale pertinent nec ad haeredes transeunt licet in rebus privatis succedant nisi etiam in principatu succedant Hering de molend quaest 9. n. 71. Re-seasin upon Reduction A Right being granted to be holden of the Superior and after Infeftment being reduced Ex capite Doli vel Metus Quaeritur Whether the former Right revives Or if there must be a new one what way is it to be taken It is Answered That it is thought that the Seasin being taken away and being Facti which cannot be infectum there must be a new Seasin and the Superior is to be dealt with to give a precept making mention of the former Seafin and Decreet of Reduction and that he is willing to receive again the Disponer If the Disponer be deceased Quomodo shall his Heir be infeft Answer Being served Heir he may apply to the Superior for a Precept mentioning as said is and that he his Heir If the Lands be holden of the King what course should be taken Answer upon application to the Lords by Bill they may grant warrand to the Directors of the Chancery to give precept of the nature foresaid If the Superior may be forced to receive his former Vassal in the case foresaid And if he should will Composition be due Answer It is thought that he ought to receive him but upon composition seeing having once entered his Vassal he is not obliged to Re-enter but upon Composition Reservation in favours of Relicts BY Contract of Marriage a Lady having accepted a Liferent-provision in Satisfaction of all she could claim either of Terce or Moveables excepting and reserving the third of the plenishing of the House Quaeritur whether by the said reservation she has a Right settled in her person to the third of the Plenishing free of debt and moveable Heirship Or if the said Third be only understood of free gear the debt being payed and Heirship deduced Item if the said Third be lyable to a Bairns part if all the Executry be exhausted but the said Third Resignation IF a Superior who is a singular Successor may infeft upon a Resignation in his Authors hands as upon a Comprysing the time of his Authors Right IF a Superior has given a Charter upon Resignation whereupon there is no infeftment Quaeritur If he be denuded of the Superiority will the singular Successor therein be obliged to renew the Right and to grant precepts to that effect and by what action he may be urged Quaeritur If after Resignation the Disponer and the Person in whose favours the resignation is made may agree and recede from their bargain without consent of the Superior upon pretence that the Resignation is in favorem and every Person may renounce Juri pro se introducto It is thought They cannot res non est integra there being a quasi contractus betwixt the Superior and them If after Resignation accepted the Superior be denuded whether his Successor will be obliged to infeft him And what way he may be urged It is thought That Succedit in rem cum sua causa and upon a Bill to the Lords there may be a warrand to direct precepts as upon a Retour If an Instrument of Resignation in favorem will prejudge a singular Successor seeing it is not Registrate De Resignationibus Quaestio Prima An Resignatio in Manibus Domini Superioris alienantem penitus devestiat ALienato praedio ex mandato in Instrumento Alienationis inserto Resignatione subsecuta a Domino directo admissa Quaeritur An ea Alienantem ita devestiat ut nullum Juris vestigium penes eum supersit nec eo mortuo aut delinquente custodia haeredis minoris aut Maritagium vel alia emolumenta Domino directo obveniant Respondere visum est Alienantem penitus devestitum Dominio utili exutum nec ex ejus obitu vel delicto obventiones quae sunt Dominii directi fructus deberi Domino directo omnia siquidem quae Vasalli ut devestiantur facere solent aut debent rite peracta sunt nec obest quod unius interitus est alterius ortus nec Jus proprietatis Dominii directi a Domino discedit nisi alii acquiratur dici autem nequit Emptorem aut eum cui Alienatio facta est Dominum aut Vasallum esse antequam a Domino directo investitus sasitus sit Jus siquidem nedum ad rem per alienationem quaesitum est ei in cujus favorem Resignatio facta est sed tantum non in re inchoatum eatenus ut feudum sit penes Dominum directum quasi per fideicommissum in rem ejus cui alienatio facta est ita ut eum ejusque haeredes investire teneatur
And seing he is in dolo that he does not make use of it the Law doth justly provide that it may be comprised and used to that end which both in Law and Conscience he should have used for himself Et interest Reipublicae ut quis re sua bene utatur Legal Reversion competent to Idiots c. QVaeritur If a Fatuous Person or Idiot having Right to a Legal Reversion has the Benefit competent to a Minor to redeem after his recovery Answer It is thought not seing by our Law and Custom Minors before the Act of Parliament 1621. had not that benefit And by the said Act of Parliament it is given only to Minors Et Exceptio firmat Regulam c. And neither can Statutes be extended nor is there eadem Ratio seing the time of Minority is defined Whereas a Fatuous Person may live a very long time and it is hard that the Creditor should be in incerto all that time as to his Right and Dominium whether it be simple or redeemable Earl of Kincardin If Actions upon Contracts do prescribe against Fatuous Persons Answer They do not prescribe quia non valent agere and there is a Difference betwixt Prescription of Actions and of Legal and other limited Reversions which are only given for a certain time Because Jus Limitatum to a certain time producit limitatum effectum viz. A limited Action during the said time And it being just and the Compriser or Heretors Interest That the Reversion should be only limited and for the said time ne Dominium sit in incerto as said is he cannot be in worse case by Reason of the condition of the Party who has Right to the Reversion being Minor or Fatuous and in effect by a Reversion the Compriser or Heretors Right is Jus resolubile sub conditione potestativa and in such cases it cannot be pretended that the party could not satisfy the condition being Minor Fatuus Rights made by Dyvours QVaeritur Whereas by the Act of Parliament anent Dyvours Rights granted without an Onerous Cause in prejudice of Creditors are reduceible without Prejudice always of those who have acquired Rights from the Confident Person bona fide If the said Salvo should be extended to Comprysers Ratio Dubitandi That it appears hard that Creditors should be prejudged and be in worse case by the Fraud of their Debitor and their action being competent to them and nata immediatly after the fraudful Alienation should be taken away from them without their own Deed and yet the said Salvo being only in favours of Purchasers and favore Commercii and of these who bona fide contract with Persons that are not inhibited neither they nor their Authors should be excluded and Comprysers cannot plead the favour of Commerce seing they have not any Commerce nor Contract with a Confident Person but against their will use Execution against what they conceive doth belong to him which they do upon their own hazard and therefore ought not to be in better case than their Debitor and cannot have his Right but as he had it Et cum sua causa Fraudulent Rights in prejudice of Creditors A Debitor after expired Apprysings Dispones his Estate so incumbered by a Contract bearing an obligement that the Disponer should cause the Comprisers Dispone their Right or that it should be lawful to the Buyer to acquire them And after all should be purged the Buyer being obliged to pay the Sum thereinmentioned and accordingly having payed the same to the Seller Quaeritur If such a Transaction though it cannot be questioned upon that head that it is without a just price yet may be questioned upon the Act of Parliament as being without a necessary cause and of purpose to defraud Creditors who had not preferable Rights If a Person be in that condition that his Debt will exceed the value of his Estate and because his condition is not known and being a person of Credit he is not inhibited any confident friend knowing his condition if he should acquire a Right to his Estate in hail or in part for a price equivalent of purpose that he may have a Livelyhood Quaeritur if such a Right may be quarelled as fraudulent Ratio Dubitandi That it is for an Onerous cause And on the other part The Cause was not just nor necessary and it is presumed that the said course was taken in defraud of the Creditors Right a non habente potestatem THE King having Disponed Lands having fallen in his hands by Forefaulture and the Infeftment being past under the Great Seal the person to whom it was granted did decease before Seasin and thereafter another Donator procured a Right under the Great Seal and was Infeft thereupon Quaeritur If the second Gift may be questioned as being a non habente potestatem in respect the King was fully denuded in favours of the first Donator and nothing could be done more to denude him by himself and the taking of Seasin is not the Act of the King but of the Party And it could not be imputed to the Donator that he did not take Seasin being surprised by Death And double Rights are forbidden by the Law Rights ad Tractum futuri Temporis WHen a Tack or Annuity for certain years belongs to a person It does not belong to his Executors because it has Tractum futuri Temporis But if he have Right to it by the Escheat of another person it will belong to his Executors To consider what is the reason of the difference Right in Trust HIs Majesty having upon the Forefaulture of the Earl of Argyle given a part of the Estate to My Lord Lorn with the Title of Earl beside what he was Infeft in before And having given of Provision for the rest of the Children alse many Lands as would extend to the Rents alloted to them and having given out of the Estate a Liferent to the Lady Argyle and the rest of the Estate to the Creditors and having appointed the Lords of Session Commissioners for hearing the Creditors claims and determining the same and upon their competition for preference There is also a Right of the Estate settled upon Three Trustees to the longest liver of them Three without mention of Heirs and Assigneys being Three Clerks one of the Session one of the Council and one of the Exchequer to the uses foresaid and that the said Estate may be conveyed and alloted as His Majesty had Ordered Quaeritur If a Signature to the effect foresaid be habilis modus Answer It is thought not Seing there being no mention of Heirs the said Right granted to the Trustees if they should all Die will evanish albeit it be granted to them in Fee And therefore it is thought that the proper way were That a Commission only should be granted to the Trustees to Dispone to such persons as the Commissioners should appoint And as to Lands holden of the King Charters should be granted making mention of
ordinary Clauses irritant for preserving of Families and with that in special to be added that it should not be lawful to any that should succeed to prejudge their Successors Delinquendo even by committing of Treason and if they be guilty of such Crimes that the Estate shall be Forfault as to themselves but not as to other Successors whether such a Clause will secure against Forefaulture Ratio Dubitandi That it would be an encouragement to Disloyalty 2do It is against the common Law pactis privatorum non derogatur Juri communi 3tio By the late Act of Parliament anent TailÈies it is provided that the King should not be prejudged as to Fines nor Confiscations nor Superiors of their Casualities On the other part it is thought there should be a difference betwixt these who by their vertue and purchase have founded a Family and these who succeeded in the Right of Estates acquired by Loyal and Virtuous Persons In the first case it is just that the person who has purchast and Entailed his Estate with such Clauses if he commit Treason should Forefault for himself and all his Successors In the other case it is hard that a person descended of an ancient and loyal Family should Fotefault an Estate not acquired by himself in prejudice of the Family and that the personal delinquence of one should weigh down the Merits of many Predecessors A Family being like a Ship out of which the Jonas that has raised the Storm should be cast and not the Ship and whole Family perish And upon the consideration foresaid it has been provided for the standing of Families even by Divine Law that it should not be in the power of one to Ruine the Family but the Successors Right should revive by the Jubile And by the Feudal Law in the begining Feuda were not Haereditaria so as that the Heirs and Successors should be Forefaulted by the deed of their Predecessors And when Feuda came to be Haereditaria there were some that were ex pacto providentia so that the Succession was settled in such a manner that it could not be cut off by the deed or Forefaulture of any of the Descendents but as to their own interest And there are yet Entails elsewhere and in England of the nature foresaid as V. G. of the Lord Grayes Estate which was the occasion that not only the Family but himself was preserved It being thought fitter that his Liferent should be confiscat dureing his Life than by his Death his Estate should go presently to his Brother And as to that pretence that Disloyalty would be thereby encouraged it is of no moment seing qui suae vitae est prodigus will be prodigus as to all other interests And albeit by the common Law where there is no provision to the contrary Estates are Forefaulted as to all intents yet provisio hominis tollit provisionem legis and there is no Law nor Statute with us disabling the King to give Rights with such provisions as are consistent with and suitable to the Divine Law and even the Civil Law Fideicommissa being in effect Entails and the Laws of other Nations and of his other Kingdoms and the Brocard pactis privatorum c. doth militate most when the certain form and modus habilis is prescribed by Law for conveyances or Testaments which ought to be precisely kept and observed without Derogation In other cases Provisio hominis as said is tollit legem As by our Law a Relict has a Terce of Lands and a third of Moveables and Marriage being dissolved within Year and Day the Tocher ought to return and in case ward Lands or the major part be Disponed they are recognised and if a Feu-duty be not payed in the space of two Years the Feu may be reduced and yet as to these and many other cases derogatur Juri communi pactis privatorum And as to the Act of Parliament concerning TailÈies it doth militate only in the case of TailÈies with the ordinary Clauses irritant anent the contracting of Debts or doing other Deeds so that albeit by the said Clauses irritant the Debts or Deeds of the Contraveener are void as to TailÈied Estates yet Confiscations and Fines in favours of the King doe affect the Estate and it is not provided by the said Act of Parliament that it should not be lawful for the King upon the considerations foresaid to grant a Right Entailed with the said Clause that the Estate should not be forefault in prejudice of the Entail and it cannot be said that the concession of a Prince qualifying his own Grant with such Provisions as he think fit is Pactum privatorum and seing other Superiors may so qualify the Infeftments and Rights granted by them to their Vassals that the Vassal should not forefault his Lands for Feudal Crimes for selling the Lands holden Ward without the Superiors consent or for being behind in payment of Feu-duties it is against Law and Reason to deny that power to the King to qualifie the Vassalls Right so that when Lands otherways would Forfault they should not Forfault in prejudice of the Family and Successors The Lands of Artloch being by Alexander Keith of Artloch Heretor thereof TailÈied to himself and the Heirs Male of his Body which failÈieing to the Heirs Female of his Body without division which FailÈieing to his Sister c. And having secured the TailÈie by Provision that it should not be in the power of any of the Heirs to alter the samen with Clauses irritant and resolutive whereby the controveening of the Terms of the TailÈie are declared to be a ground of amitting the Estate and devolving thereof upon the next Member of the TailÈie All which Clauses are insert in the Bond of TailÈie Charter and Instrument of Seasin following thereupon Anna Keith being the only Heir of the Marriage and so Heretrix of the Lands she by Contract of Marriage with John Forbes of Assure is obliged to resign and provide the saids Lands of Artloch to him and her in Conjunct-Fee and Liferent and to the Heirs-Male to be procreat betwixt them which failÈiening to the Heirs-Male of her Body which failÈiening to the Eldest Heir Female to be procreat betwixt them which failÈiening to the Eldest Heir Female of her Body which failÈiening to him and the Heirs Male of his Body which failÈiening to the Eldest Heir Female of his Body Which failÈiening to him and his Heirs and Assigneys whatsomever 1. Quaeritur Who is Fiar by the Conception of the TailÈie whether the Wife because she having been formerly Fiar the TailÈie was made upon her Resignation and so the Heirs of the Marriage must in dubio be Heirs to her Or whether the Husband by the Prerogative of the Sex and by the last termination of the TailÈie which resolves on his Heirs ut supra will be Fiar Or if the foresaid destination whereby the Wifes Heirs-Male or Female are preferred to the Husbands in all
on the other part surrogatum sapit naturam surrogati and it is due to be given ratione rei and a renunciation to be given by the Heir Quid Juris in the case of a Contract whereby Lands are sold and a price payable if the Buyer charge for implement and consign the price and the Disponer decease whether will it belong to his Heirs or Executors After Redemption of a Wadset or comprysing the Wadsetter or compryser dying whether is it necessary that their Heirs be infeft and re-renounce or if a renunciation will be sufficient the Wadset or comprysing being loused and extinguished by Redemption Wadset Heretable or Moveable WHen there is a provision in a Wadset-Right that requisition should not louse the infeftment Quaeritur If after requisition the Sum be Heretable or Moveable Ratio Dubitandi The Creditor declares his resolution to have the Sum And on the other part a Sum due upon a real Right appears to be Heretable It is thought that until it be actually uplifted it should be Heretable sed Cogitandum If the Wadsetter be year and Day at the Horn and thereafter the Wadset be redeemed Quaeritur If the Superior will have the Wadsetters Liferent of the Sum due upon the wadset If before Redemption the Wadsetter Dispone the Lands suppose they hold Ward will they recognise simply or only as to the Wadsetters interest Ratio Dubitandi The Wadset is upon the matter but a Hypotheck and he can forefault no more than he has And on the other part whatever paction be betwixt the Creditor and Debitor yet as to the Superior the Wadsetter is properly and formally his Vassal so that ex ejus persona he has all the fruits and casualities of Superiority If a Wadsetter holding of the King commit Treason Whether or not he forefaults the Lands or only his interest of Wadset Ratio Dubitandi As in the former Querie and that the King should have hominem vivum mortalem confiscantem and all the casualities belonging to his Superiority or to His Majesty as King ex morte vel delicto Vasalli and albeit the Right be redeemable yet that is to be understood alse long as the Right is in the person of the Wadsetter but not after it is Extinct by Forefaulture Wadset Proper IF a Wadsetter of Ward-Lands die before Redemption will the Marriage of his Heir fall And if it fall will the Debitor if he redeem be lyable to refound the avail In Proper Wadsets a great part of the Sum being paid will the Wadsetter be comptable for the duties effeirand thereto Ward A Compryser of Lands holden Ward being infeft Quaeritur If these Lands will Ward by the decease of the compryser and if the Marriage of his appearand Heir will fall Ratio Dubitandi a compryser is but an interim Vassal for suretie of his Debt And upon that consideration such a Right in England is considered as a Chattel and not Inheritance vide Comprysing quaest 14. litera C. If the comprysing be Redeemed will the Debitor be lyable to refound the damnage sustained by the Ward and Marriage Quaeritur If the Ward of the comprysers Heir will determine and expire upon the Redemption Quid Juris in the case of proper Wadsets if the Debitor after Redemption will be lyable to refound the foresaid Damnage The difference being that a comprysing is an involuntar Right and the Wadset voluntar so that the Creditor seemeth to take his hazard A Creditor being infeft in Ward Lands upon a Wadset bearing back-tack will they Ward upon his decease and the Minority of his Heir If they Ward will the Debitor have the benefit of the backtack during the Ward The Superior having in effect consented thereto We have seen a Charter granted to the Earl of Home viz. To George Earl of Home and Mareon Halyburton of the Earldome of Home and other Lands thereinmentioned some of them holding Ward Which Charter is granted to them in Liferent and to their Son Alexander in Fee dated in Anno 1538. which bears that though the said Alexander be infeft in Fee yet if the time of the Liferenters decease he be Minor his Ward and Marriage shall fall to the King Item It bears a reservation of Terce to the said Mareon notwithstanding of the said Fee If the Ward of a person who is Appearand Heir as to a Wadset Right do not determine by a Redemption of the Wadset And the same Question may be as to the Liferent of the person infeft upon the Wadset Answer It is thought that it will determine his Right being Jus resolubile And though the Ward be considered as fructus Dominii directi and being gifted it may seem that the Donator cannot be prejudged yet that is to be understood when the Vassal has an absolute Right but not when the Right is qualified and resolubile If the Appearand Heir of VVard Lands being pubes and Doli capax commit Treason will his VVard be determined vide Marriage questiones 17. 18. in litera M. Lands holding VVard being full the time of the Vassals decease by an Infeftment upon a Comprysing but the Comprysing being thereafter redeemed by the Debitors general Heir being Minor Quaeritur If the Superior will have the VVard Answer It is thought not seeing the Heir does not succed to the Lands as Heir to his Father who was not Vassal but as general Heir has Right to the Reversion whereupon he has Redeemed and Modus Forma is much to be considered If the Comprysing does extinguish being satisfied by Intromission Quaeritur If the Heir being Minor there will be a Ward in that case Answer It is thought not Seing the Comprysing does extinguish not ab initio but ex post facto and the Heir cannot be said to be the Appearand Heir of a Vassal the Lands being full as said is the time of his Fathers decease And albeit there is not a formal and ordinar legal reversion no Money being to be paid yet there is upon the matter Jus Retrahendi to the Appearand Heir vide Comprysing Quaest 37. litera C. Ward Lands QVaeritur A Superior of Ward Lands having confirmed a base Infeftment whether will the Subvassal be Lyable to the Ward or Non-entry falling by the decease of the Vassal Ratio Dubitandi Hope giveth only that reason in the case of Lands holden of the King that Confirmations bear a Salvo of all Rights Duties and Services By the Act of Parliament _____ The Superior during the Non-entry and Ward had Right only to the Feu-duty due to the Vassal by the Subvassal Quaeritur If the Superior be in the same case by the confirmation as he was by the said Act of Parliament notwithstanding the Act of Parliament 1606 in favours of Subjects Superiors of Ward Lands If the Appearand Heir of a Vassal of Ward Lands renounce to be Heir will his Marriage notwithstanding fall either single or double Ratio Dubitandi he was never Vassal and caelibatus is not
delictum If Marriage be real and affects in prejudice of singular Successors Ratio Dubitandi Hope is for the Affirmative and alledgeth Decisions To consider Haltons case On the other part in Novodamuses amongst incumberances that affect there is no mention of Marriage 2do The Marriage respecteth not the Lands but the person and his other Estate as to the value 3tio It may appear to be a personal Prestation whereto the person and his Right dureing his and his Heirs time is Lyable but doth not affect a singular Successor as in the case of Ward A Vassal of Lands holden Ward of the King did Feu the same before the Year 1633. when it was lawful to Feu Lands holden Ward of the King and when the said Feu was granted the Disponer did grant a general Discharge of the Feu-duty except dureing the Ward and for securing the Feuer having bought the saids Lands as optima maxima at alse high a price as if the Lands had holden otherwayes that he and his Successors should not be Lyable to the Feu-duty during the Ward the Disponer was obliged to Infeft the Feuer in an Annualrent out of other Lands equivalent to the Feu-duty suspending always the effect of the said Right except during the Ward Quaeritur 1mo If the said general Discharge with an obligement to grant particular Discharges when required will militate against singular Successors being in rem Answer Cogitandum But it is thought that it will not unless the same were by way of Provision in the Charter and Seasin When Ward Lands were Feued which did hold of the King before the Year 1633. The Feuer during the Ward was only Lyable to the Feu-duty by the old Act of Parliament allowing the Feuing of such Lands but there is no mention of the Marriage in the said Act of Parliament Quaeritur therefore Whether the Marriage of the Disponer and his Successors will affect such Feues It is Answered That it is thought not seing the setting of Feus being allowed it appears that Feuers should be only Lyable to the Feu-duty The Feuer having ever possest since the granting of the said Right mentioned in the Querie abovewritten except one but not being Infeft upon the said obligement to Infeft in an Annualrent for relief of the Feu-duty Quaeritur If the Feuer should pursue upon the said obligement if it may be obtruded that it is prescribed Ratio Dubitandi That the said obligement is a part of the Feuers Right and the Feuer has been in possession by vertue of his Right all the time and if the Feuer had not been Infeft upon the Feu-Charter and had been in possession by the space of Fourty Years and after the expireing of the same should pursue the Disponer and his Representatives to grant a new Charter with a Precept to Infeft it could not be pretended that the said Right was prescribed If Lands holden Ward of the King be Feued after the Year 1633. and the King should question the said Feu as null being contrar to the Act of Parliament Quaeritur If Prescription may be alledged and obtruded against the King Ratio Dubitandi That the Right is null ab initio and cannot be a warrand and ground of Prescription Et quod nullum est nullum sortitur Juris effectum A Vassal of Ward Lands holden of the King having Feued the same conform to the Act of Parliament warranting such Feus Quaritur If the Vassal be Forefault whether such Feus will fall under the Forefaulture if they be not confirmed Or if the Act of Parliament warranting such Feus be equivalent to a confirmation Answer It is thought the King for himself and his Successors by the said Act did consent to all Feus that are to be granted by vertue thereof So that the same is equivalent to a Confirmation Marques of Huntlie Taxt Ward A Gift being granted of Wards simple or Taxt falling within a certain time Quaeritur if the Donator will have Right to the Taxt Ward for Terms thereafter Answer He will have Right to the same if the Taxt Ward has fallen within the said time as the whole time of the Ward seing Ward is to be considered as Jus integrum and Dies cedit when ever it falls albeit non venit Warrandice A Bond being Assigned with absolute Warrandice Quaeritur What is the import of the said Warrandice And if the Cedent should be Lyable if the Debitor be or should become Insolvent Answer It will import only that the Debt is true and due by a valide Bond but not that the Cedent should be obliged to warrand the condition of the Debitor the Law being express to that purpose that he should warrand deberi but not Debitorem locupletum esse As was found in the case of Mr. Robert Barclay Quid Juris If the Warrandice be in these Terms that the Debitor is Locuples and he be truely so for the time but he becomes Insolvent Cogitandum Infeftment of Warrandice IF an Infeftment of Warrandice being only base will be construed to be publick by Possession by reason of the Possession of the Principal Lands Dunglas Waste WAste being committed by a Liferenter or Wadsetter and the Heretor deceasing or disponing the Lands whether will the Action for the same be competent to the Heir of the Heretor or to his Executors or Singular Successors Answer It is thought it will belong to the Heir or Singular Successor being Actio in Rem And so it is by the English Law Witnesses Remitted THE necessary Qualification of a Witness being Honesty and Integrity which though presumed in all Persons yet cannot be thought to have been in these who by sentence on their own Confession are evidently Criminosi and guilty of the highest Crimes It would seem that a Remission may Free as to punishment and may Repone as to all other capacities and as to the Kings own Interest But not as to that which in behalf of the People requires Integrity And the King by a Remission may free a Pain but not a Guilt and cannot repone to Innocency Witnesses in case of Treason THE Law of the Majesty and the Statutes of King William Chap. 11th Of these who are Infamous and the Statutes of Robert the 1st Cap. 34. of these who are repelled from Testimony are clear that Socii Criminis cannot be Witnesses and convicti redempti cannot be Witnesses Quaeritur therefore if a Person convict of Treason and Remitted that he may be Witness against others can be Witness Especially that Law bearing That conducti prece vel pretio cannot be Witnesses and there can be no greater pretium than a Mans Life Skin for Skin c. VVomen VVitnesses QVaeritur If Women Witnesses may be admitted in the case of Divorce to prove Adultery Answer This Question is under debate upon Advocation from the Commissars of Edinburgh having admitted the same And that they should not be admitted 1mo That by our Law Cap. 34. Stat. 2d Ro. 1st Women are
other papers now produced by the Duke for clearing his interest That the claim of that Honourable Familie was only of the Office of Admiralitie of the Kingdom without any mention of the Isles and much less of Orknay and Zetland in so far as his Majesties Fathers letter 16 June 1628 of which the extract is produced doth bear That he had been pleased to sign a signature In favours of the Duke of Lennox of the Heretable Office of Admiralitie of this his Kingdom And in the Act of Parliament produced of the date 28 June 1633 Mention is made that the deceased James Duke Lennox stood Infeft as Heir to the said Lodovick Duke of Lennox in the Office of Admiralitie of this Kingdom without the least mention of Orknay and Zetland It appears by the Writs produced for the Duke That until the Earl of Mortouns Grand-Father obtained a gift and Right of Orknay and Zetland from his Majesties Father The Duke of Lennox's Right as to the admiralitie of Orknay and Zetland was ever questioned and controverted by his Majesties Officers In so far that upon the last of March 1628 The King did set a Tack of the Earldome of Orknay and Zetland To Archibalâ— Lord Naper Containing a Right likwayes of the Admiralitie within the Bounds of Orknay and Zetland And the Earl of Linlithgow having appeared in behalf of the Deceased James Duke Lennox The said Lord Naper Declaired that he should be ruled as to the said Right of Admirality according as his Majestie should declare his will thereanent whereas if the Dukes Right had been clear and unquestionable neither a Tack would have been set of the Admiralitie of Orknay and Zetland neither woulâ— there have been any Reference made to his Majestie But upon the Earâ— of Linlithgowes appearing and representation of the Dukes Right thâ— Clause of the said Tack as to the Admiralitie of Orknay and Zetland would have been Delet As to Possession the Earles of Mortoun have been in Possession of the Admiralitie of Orknay upon a Gift and Right from his Majesty ever since thâ— Earle of Mortouns Grand-Father obtained the Right of Orknay There is produced for the Duke The double of a Gift granted to the Earl of Linlithgow of the Admiralitie of the whole Kingdom of Scotland and Isles thereof and of the Lieutenendrie Justiciarie and General of the Sea with consent of the Deceast James Duke of Lennox and of his Curatorsf the said Earl being a Confident Person and Relation of the said Noble Familie And without prejudice of the Dukes Right But it is to be Considered that the said Paper is only a Double and not Authentick And the said Right is only Granted dureing the Minoritie of the said Duke of Lennox and is given upon a Supposition and Narrative of the Dukes Right Whereas no Right has been or for any thing that can be seen can be showen That the Dukes of Lennox have Right expresely of the Admirality of the Isles and of the offices of Lieutenendrie and Justiciarie As to the Priviledges and Casualities belonging to the Admiralitie of Orknay and Zetland it is represented that the Priviledges and Casualities of the Admiralitie are not specified nor defyned in any Charter or Record for any thing that does appear the Charter foresaid granted to Lodovick Duke of Lennox in Anno. 1603 bearing only as said is Cum Privilegijs commoditatibus eisdem Spectantibus And the Charter granted to Adam Hepburn Earl of Bothwell in the Year 1511 which is the most ancient Record of Admiralitie that we have seen bearing only the said Office of Admiral Totius Regni to be given to the said Adam Cum omnibus Libertatibus proficuis eschetis ejusdem without mention of the Isles of Orknay or Zetland or specifieing the Liberties and Casualities belonging to the Admirality It Appears by an Act of Parliament Intituled concerning certain abuses of the Admirals proceedings being 156. Act of King James 6th his 12. Parliament that upon pretence of an Infeftment granted to Francis Earl of Bothwell of the Admiralitie of Scotland containing greater Specialities and diverse Clauses which were not in the former Infeftments of Admirality The People being oppressed did Complain and by the said Act it is Statute that the Admiral and his Successors should exerce no Jurisdiction nor exact no Dutie nor Casualitie But that which was in use to be exercised and taken by the Admiral for the tyme before the Death of King James 5th And therefore it is humblie conceived that whosoever shall be found to have Right to the Admiralitie of Orknay and Zetland It is fit that the Priviledges and Casualites of the same be so defyned and cleared that the Fishing Trade and Trafficque be not interrupted nor disturbed And that his Maiesty be not prejudged of his Rents of Orknay It is humblie represented to his Majesties Consideration The Records being for the most part lost which might have cleared his Majesties Interest and the Right of Admiralitie being Granted to the Dukes of Lennox in manner foresaid and neither the Dukes Right nor the Right of Admiralitie granted to the preceeding Admirals being special as to the Isles of Orknay and Zetland and the said Isles of Orknay being the Kings Propertie and feued only to the Earles of Orknay and now Annexed to the Crown and the said Isles being so remote and of so vast an extent and formerlie possessed by the King of Denmark and upon Transactions with the said King which are not very ancient being reunited to this Kingdom Whether or not the Right of Admiralitie granted to the Dukes of Lennox ought to be extended to the said Isles of Orknay and Zetland FINIS THE DECISIONS OF THE LORDS OF COUNCIL and SESSION IN Most Cases of Importance Debated and brought before them from December 1665 to June 1677. OBSERVED By Sir JOHN NISBET of Dirleton Advocate to King CHARLES II. To which is Added An INDEX For finding the principal Matters in the said Decisions As also A List of the Pursuers and Defenders Names EDINBVRGH Printed by GEORGE MOSMAN and are to be Sold at his Shop in the Parliament-Closs Anno Dom. M.DC.XCVIII DECISIONS OF THE LORDS OF COUNCIL and SESSION In some Weighty and Important Affairs before them Beginning the 7. of December 1665 and ending the 29. of June 1677. Decision 1st Veatch contra Duncan 7. December 1665. THE Clause cum molendinis multuris importeth freedom from astriction though it be only in the Tenendas Me referente D. 2. Burnet contra Leys 12. Decemb. 1665. THe said Mr Robert Burnet Son to Alexander Burnet of Leys being provided by his Grand-Father Sir Thomas Burnet of Leys his Father having deceased before To the Sum of 10000. Merks to be payed after his age of 25. Years with Annualrent after that time conform to a bond pursued his Nephew Leys for the Annualrent of that Sum at least for an Aliment until he should attain to that age Upon that ground That he could
being a proper Wadset without a Back-tack the Defender was not Lyable to Compt and tho he were he was not Lyable to Compt but since the date of the Right and for his own Intromission It was Replyed that it was a Right granted for security and that by the Contract of Wadset and the Eik to the Reversion thereafter the Right was redeemable upon payment of the principal and Annualrents that should be unsatisfied whereas in proper Wadsets there is an Antichresis and the Rents of the Land belongs to the Wadsetter in lieu of the Annualrents whereto the Debitor is not Lyable The Lords Found That though the Right was not clear and express that the Wadsetter should have Right for surety and until he be satisfied by Intromission or otherwayes yet the Reversion being in the Terms foresaid it was Actum and intended that the said Wadset should not be a proper Wadset but only for surety as said is D. 58. E. Cassils contra Whitefoord Eod. die THe Lands of Damertoun being a part of the Barony of Cassils and formerly holden Ward by the Lairds of Blairquhan Kennedies of the Earl of Cassils and now being in Ward through the Minority of the present Heritor who had Succeeded in the Right of the saids Lands being acquired from the Laird of Blairquhan The Tennents of the saids Lands Pursued a multiple poynding against the E. of Cassils and Whitefoord now of Blarquhan and the Heretor of Dalmertoun all pretending Right to the multures of the saids Lands The E. of Cassils alledged that during the Ward they should bring their Corns to his Miln of the Barrony of Cassils there being no Milns upon the Lands of Dalmertoun The Laird of Blarquhan alledged that he was infeft in the Lands of Blarquhan and in the Miln of Dalhovan upon a Right granted by Kennedy of Blarquhan cum astrictis multuris usitatis at such a time as Blarquhan had Right to Blarquhan and Dalhovan and to the Lands of Damertoun And that before the said Right granted by Kennedy of Blarquhan to John Whitefoord of Ballach Author to this Laird of Blarquhan the Tennants of Damertoun were in use to come to the said Miln and to pay the like multure and service as the Tennants of Blarquhan did and since the Right have been in use to come constantly to the said Miln It was Answered for Cassils that unless there were an express Constitution of Thirlage the said Lands of Dalmertoun being a distinct Tenement from the Lands of Blarquhan which hold of the King cannot be alledged to be astricted to the said Miln of Blarquhan And if it had been intended that the Lands of Dalmertoun should have been astricted It would have been exprest And when the same did belong to Kennedy of Blarquhan it cannot be said that it was astricted to his own Miln with the foresaid Servitude quia res sua nemini servit and he having Disponed his Miln it cannot be presumed that he would have Burdened his own Lands with a Servitude And though it were clear Kennedy had astricted the saids Lands of Dalmertoun yet he could not Constitute a Servitude without the Superiors consent in his prejudice when the Lands should Ward in his hands It was replyed by Whiteford of Blairquhan that the Superior had consented to the Thirlage in so far as John Gilmor and one Bonar having Comprysed the saids Lands of Dalmertoun from Kennedy of Blarquhan and having Assigned their said Comprysing to John VVhitefoord the said VVhitefoord by Contract did Assign the same to Kilkeren with a Reservation of the multures thereof to the Miln of Dalhovan And the said E. had granted a Charter to Kilkeren upon the foresaid Right The Lords thought That these Words Cum multuris usitatis do relate only to the quantity of the multures as to such Lands as can be shown to be astricted But before Answer to the Debate upon the said Charter and Reservation They ordained the Charter and Contract containing the Reservation to be produced That they might consider Whether it be in the Charter and how it is conceived and what it should operate if it were only in the Contract The Lords enclyned to think that a clear Reservation though there were not a preceeding Thirlage should import a Constitution as to these who accept or consent to such a Reservation D. 59. Leslie contra Leslie eod die PAtrick Leslie of Balquhoyn pursued a general Declarator of the Single and Liferent Escheat of John Leslie of Balquhoyn against James Leslie and his Spouse as nearest of Kin to the said John It was Alledged that the Horning was prescribed the Declarator being raised fourty years after the Horning It was Replyed That though Prescription should run against the King which was denyed yet in this case it could not The King being Minor the time of the Prescription diverse years and the Government being interrupted So that there was not Tempus utile during the Usurpation And the King is not in use to dispose of Escheats until application be made to his Majesty And by the Act of Parliament it is provided that the negligence of his Officers should not prejudge him The Lords Found That the Horning did not prescribe in respect of the Kings Minority and Interruption foresaid It may be asked If that reply of his Majestie 's Minority and Interruption were not competent And if the Escheat were gifted by a Lord of Regality or a Superior Quid Juris And it seemeth that a Horning being poena and once execute it doth not prescribe Seing the Rebel if he should survive fourty years his Liferent would fall to the Superior and there is no reason that he should Lucrari and be in better case ex culpa and by the continuance of his Rebellion for so long a time D. 60. Hume contra Creditors of Kello 12. Decemb. 1666. IN a Process betwixt Hary Hume and the Donator of the Forefaulture of John Hume of Kello and certain others his Creditors It was Found That a Comprising being deduced before January 1652 and being the first effectual Comprysing ought to be preferred to the posterior Comprysings so that they should not come in together pari passu In respect tho they were within year and day of the compleating and the making effectual the first Comprysing by Infeftment or Diligence yet they were not within year and day of the deduceing the said Comprysing and the said Comprysing being before the year 1652. doth not fall under the compass of the Act of Parliament concerning Debitor and Creditor which bringeth in pari passu Comprysings led since January 1652 and being Correctoria Juris Communis ought not to be extended D. 61. Thomson contra Stevenson eod die IN a Reduction of a Right and Disposition of certain Houses being pursued ex capite minoris aetatis It was alledged that the Disposition did bear 500 merks to be payed and the Defender was content to quite the right being payed of the Sum. It was
of Parliament their Sallary being enlarged and settled upon them otherwayes And if during the time the said Lords had their Sentence Silver any of them had deceased before Sentence tho the Process had been commenced and advanced beyond Litiscontestation it cannot be said that the Executors of a Lord deceasing before the Sentence could claim any part of the Sentence Money where the Sentence is pronounced after his decease 3. By the 28. Act of his Majesties Parl. 1661. the Quots of Testaments are discharged and yet the Bishops being restored to the Right of Quots the same will be due for any Testament confirmed thereafter notwithstanding of the said Act of Parliament whereas if Quots were due from the time they became confirmable they could not be claimed tho confirmed since the Bishops were restored as said is to their Quots as being discharged by the said Act of Parliament The Lords did also Find That the Bishops Relict and nearest of Kin had Right to an Ann even before the late Act of Parliament being the 13. Act of the 3. Session of His Majesties second Parliament concerning the Ann due to the Executors of Bishops and Ministers In respect by a Letter of His Majesties Grand-father in anno 1613. and Act of the Bishops thereupon an Ann was Found to be due to the nearest of Kin of Bishops But in regard by the said Letter and Custom before the said late Act of Parliament the Ann in relation to Bishops was if the Bishop deceased before Michaelmass after the Moneth of _____ his Executors had the half of that year as belonging to the Bishops Incumbent Jure proprio and the half of the next year as Ann the half of the Rent of his Benefice for the half year preceeding Michaelmass the other half being due to him as Incumbent and fallen under his Executry Whereas by the late Act the said Ann is so ordered that the Bishop or Minister surviveing White-sunday the half of that year does belong to him and his Executors upon account of his Incumbency and the other half for the Ann And the Incumbent surviving Michaelmass he is to have the whole Year as Incumbent and the half of the next year is to be Ann Therefore the Lords Found That the late Bishop having deceased before Michaelmass and before the said late Act of Parliament the Ann should be as it was formerly In the same Process It was debated among the Lords more fully than at the Bar whether the Quots of Testaments should fall under the Ann And it was urged by some that the Quots of Testaments are but casual Obventions and that they are due as said is upon the account foresaid viz. That Testaments are confirmed by the Bishop or his Officials and ratione operae and as Sentence-Silver so that they cannot be due but to the present Incumbent who does a duty and that Compositions for entering of Vasals and Liferent Escheats and Non-entrys and such like casualities do not fall under Ann. Whereunto It was Answered That by the Kings Letter by the Act of Parliament and by the Canon Law the half of the Rent of the Benefice Stipend and Living fall under the Ann and the Quots of Testaments are a considerable part of the Bishops Rent especially in Edinburgh and undoubtedly is a part of his Living and Benefice And the Rent of Milns which is casual and depends where there is no astriction upon the arbitrary will of Parties to come or not to come to the same and is likewayes due ratione operae doth fall under Ann As also the Rent of Fishings and such like which are casual And there is a great difference betwixt Quots which is an ordinary yearly Rent and cannot fail so but there will be still Testaments confirmed and the casualities of Superiority as Liferents c. which are so uncertain as that it cannot be said they are the Bishops Living And the Argument that Quots are due ratione operae and by reason of actual confirmation which cannot be due by the Executors or Relict is of no weight seing the other constant Rent of Stipends and Benefices is due ratione operae and because the Bishop or Minister serveth which is not prestable by Executors or Relicts The Lords notwithstanding enclined to Find That the Quots do not fall under the Ann but upon the motion of some of their Number that the Interloquitor being to be a preparative should be further considered they thought fit not to proceed to the Voting Gibson Clerk Forret Reporter D. 195. Craig contra Edger 20. Novemb. 1674. THE Lords Found That a Bond bearing Annualrent being Assigned by a Woman to her former Husband by her Contract of Marriage and the Assignation not being intimate a Retrocession did settle again the Right of the said Bond in the Person of the Wife Quia unumquodque dissolvitur eo modo quo contrahitur And the said Bond being thereafter assigned in favours of the second Husband he and his Executors had Right to the same and that it was not in bonis of the first Husband though the Retrocession was not intimate until after his decease Lord Glendoick Reporter Mr. John Hay Clerk D. 196. Thoirs contra Tolquhon eod die MR. David Thoirs in an Improbation at his Instance against Tolquhon of a Bond did crave Certification because the Principal was not produced but an Extract out of the Commissars Books of Aberdeen The Lords upon a Report having debated amongst themselves what was fit to be done in the said Case seing it appeared that the said Pursuite was intented not of design to question the Bond upon evident and probable Grounds of Falsehood but only to have it produced and it appeared by many Presumptions that the Bond was a true Deed and never questioned by the granter ex capite falsi tho he had suspended upon other Reasons And there had been much diligence by Decreets Horning and Comprysing upon the same and yet the Bond being of an ancient Date beyond 40 years there was no person living that could prove the Tenor thereof and declare that they knew the same to be a true Deed And on the other part the Lords could not refuse to grant Certification seing an Extract does not satisfy in an Improbation where the Principal was not produced It was moved by some of the Lords That if the Pursuite was not intented within the years of Prescription that it should not be sustained seing albeit causa falsi doth not prescrive where the Paper or Subject craved to be improven is produced and the Pursuer offers to improve and make it appear that the same is false yet when the Improbation is only to try the condition of the Defenders Right and in order to a Certification if the Principal cannot be exhibit it is not properly causa falsi And the effect of the Certification is only that the Write for not production should be holden as false praesumptive and fictione Juris And upon the matter it
Fidejussoribus ff lib. 46. Tit. 1. leg 39. Et leg 36. ibid. Et. Leg. 11. Cod. eod Tit. The Lords Decided as said is In respect of a Practique produced betwixt _____ in anno _____ relating to a former Practique in anno _____ D. 229. The Minister of Tulliallane contra Colvill of Larg and Kincardne 28. January 1675. IT was Found by the Lords Commissioners for Teinds That the Heretors of Lands having Right cum decimis inclusis were not lyable to the Augmentations of Ministers Stipends and that no Locality could be given out of their Teinds the saids Infeftments being before the Year 1587. And that the Feu-duty payable to Church-men for Stock and Teind in Victual was not lyable thereto because the Teinds not being separate from the Stock and the Heretors having Right to the Lands free of Teinds in effect there were not decimae And by the Acts of Parliament and the Kings Decreet Arbitral Teinds are lyable to Ministers Feu-duties in consideration that the Lords of Erection and Titulars had Right thereto from the King since the Act of Annexation And that the King who might have questioned their Rights was pleased by the said Acts of Parliament and Decreet Arbitral to affect them with the burden of Ministers Stipends whereas such Rights cum decimis were granted by Church-men and did not flow from the King but from them at such time as by the Law then standing they might have granted the same D. 230. Doctor Hay contra Jamieson and Alexander eod die GEorge Steuart Advocate having comprised from _____ Con the Lands of Artrochie and others did dispone the said Lands and his Right of Compriseing to _____ Neilson and thereafter the said Neilson failing in payment of the price the said George Steuart did Comprise back from the said Neilson the said Lands and Andrew Alexander did also comprise from the said Neilson the said Lands and his Right foresaid Doctor Hay Having also comprised from _____ Con the foresaid Lands pursued an Improbation of the said first Comprysing at George Steuart's Instance and having called thereto the said George Steuart and Neilson and Marjorie Jamison who pretended Right to the said Lands he did obtain a Certification against two Bonds which were the Ground of the said Comprising upon Compearance and a long Dependance and long Terms assigned for produceing the said Bonds And thereafter the Doctor pursued a Removing from the said Lands against the said Andrew Alexander and others And it was Alledged for the said Alexander That he had Right to the said Lands and was in Possession upon a Right from George Steuart who had Right thereto as said is by a Comprising against _____ Con the common Debitor Whereunto It was Answered That the Defenders could not found a Defence upon George Steuart's Comprising Because the saids Bonds being the Grounds thereof were false and improven To which It was Duplyed That the Certification against the said Bonds was only granted against George Steuart and that the said Andrew Alexander was not called and that now there is produced the foresaids Bonds And that the Extracts of the same out of the Register of the Commissariot of Aberdene had been formerly produced but the Principals which were in publica custodia as the warrands of the same could not be then found by reason of the disorder of that and many other Registers upon occasion of the late Troubles and the same being now found aught to be received and sustained as the Grounds of the said Comprysing Seing they are not improven and found false by a Decreet of Improbation upon tryal of the Falsehood But a Certification is only given against the same for not production which at the most doth amount only to a presumptive Falsehood which is now taken away as said is by production of the saids Bonds seing praesumptio cedit veritati It was Answered for the Pursuer That all Persons whom he was obliged to take Notice of and to call to the Improbation of the first Apprysing were called viz. The said George Steuart at whose Instance the said Comprising was deduced and who had also Comprised from Neilson the Right thereof as said is and Neilson himself and that he needed not call the said Alexander who had only a subaltern Right and was not infeft and albeit he had comprised from Neilson yet by that Comprising he had not such an interest as the Pursuer was obliged to know in sua far as the Right of the Lands in question was settled in the Person of the said George Steuart by the Comprising against Neilson after which Neilson had only a Reversion and the said Neilson was called himself as said is And the said Alexander's Right by his Comprising against Neilson being only a Right of the Legal of George Steuart's Comprising against Neilson the Pursuer was not holden to take notice of the said Right and the said Reversion is not only now expired but was expired the time of the obtaining of the said Certification no Order being used thereupon And albeit the said Andrew Alexander was not called yet he did compear in the said Improbation and albeit he pretends that his right was reserved the said pretence is of no weight seing it was reserved only as accords And Certifications being the great Security of the People and specially where the same are obtained upon compearance and after diverse termes are assigned and after Certification granted the samen stopt for a long time upon expectation that the Writes may be got as in this Case the samen cannot be canvelled and loosed praetextu Instrumentorum noviter repertorum The Lords For the Reason foresaid thought hard to loose the said Certification but specially in this case seing the said Alexander will have and take the advantage of Stuarts expired Comprysing and exclude the Doctor who was a true and real Creditor to whose prejudice the said George Stuart and the other Defenders had patched up not only the said Comprysing for small Sums but other Rights which the Donator had been forced after he had Comprysed to question by a Reduction and had prevailed after a long dependence and after they had possest the Lands for a long time And on the other hand the said principal Bonds being now produced they thought it hard that the Doctor should take advantage of the same to exclude the Defenders altogether and therefore they proposed to the Doctor that he should grant a Reversion to the said Alexander upon payment of what was justly due to him within the space of two Years And the Doctor acquiesceing they decerned in the Removing with the quality foresaid Lord Glendoick Reporter Gibson Clerk Actor Chalmers alteri Thoirs Vide 17. February 1676. inter eosdem D. 231. contra Maxuel 29. January 1675. A Bill of Exchange being drawn upon three Merchants without mentioning that it was drawn upon them either severally or conjunctly and one of the persons upon whom it was drawn being pursued for the whole Sum