the Right of the Teinds in the Patron in leu of their Patronage and also as he who had Tack thereof and had since possessed be tacit relocation The Defender alleadged as to the first Title that the Parliament 1649. was not only annulled but declared void ab initio as a meeting without any Authority as to the tacit Relocation it could not extend any further then so many years as the Beneficed Person could set It was answered for the Earl that the Rescissorie Act could not prejudge him as to any thing anterior to it's date unless it had born expresly to annul as to bygones The Lords found the Lybel and Reply Relevant as to bygones before the Act albeit there be no salvo in that Act as there is in the Rescissory Acts of the remanent Parliaments and found that the Pursuer had Right per tacitam relocationem till he was interrupted even for years which the Beneficed Person could not validly set as a Liferenters Tack will be validly set as a Liferenters Tack will be valide against the Feer per tacitam relocationem after her Death though she could grant no Tack validly after her Death Relict of Mr. Thomas Swintoun Minister of Ednems contra Laird of Wedderburn Eodem die THe Minister of Ednems Relict Insisting for the reparation of the Manss It was alleadged for the Heretors that those who have Right to the Teinds as Tacks-men or otherwayes ought to bear a proportion of the reparation The Lords found that albeit these who have right to the Teinds were accustomed to Repair the of Kirks and the Heretors the rest of the Kirk yet there was neither Law nor Custom alleadged the Teinds could be burdened with any part of the Reparation Sword contra Sword Eodem die ONe Sword as heir Served and Retoured to Bailzie Sword of Saint Andrews pursues for Intromission with the Moveable Heirship for delivery of the same and produces his Service done at Saint Andrews and Retoured whereby he is Served as Oye to the Defunct Bailzie his Father Brother compears another Party who is likewise Served Heir to that same Bailzie at Edinburgh and produces his Service Retoured by which he is served Heir to Bailzie Sword as his Father Brother Son whereupon he hath raised a Reduction in Latine under the Quarter-seal of the other Service which was prior and alleadges that he being in a nearer degree of Blood then the other in so far as he is a Father Brother Son and the other Service bears him to be but a Father Brothers Oye The Lords having considered both the Retoures and that they were not contradictory inferring manifest Error of the Assize because it was sufficient for the Assize to Serve the Father Brothers Oye if they knew of no nearer Degree And also because the Defunct Bailzie might have had two Father Brothers one elder then his Father and the other younger and thereby two Heirs one of Line and another of Conquest which not being clear by the Retoures the Lords will not prefer the first Retour as standing but would hear the Parties upon the Reduction Mr. James Stuart contra Mr. John Spruile Ianuary 21. 1663. MR. Iames Stuart and Robert Stuart Bailzie of Lithgow as Curator to him as a Furious Person or Idiot by Gift of the Exchequer pursues Mr. Iohn Spruile for Sums of Mony due to Mr. Iames. It was alleadged no Process at the Instance of Robert Stuart as Curator because by Law the Tutors or Curators of Furious Persons are conform to the Act of Parliament to be Cognosced by an Inquest whether the Person be Furious and who is his nearest Agnat of the Fathers side past twenty five The Lords found Process Robert Stuart finding Caution to make forth coming and declared it should be but prejudice to the nearest Agnat to Serve according to the said Act of Parliament for they thought that as the Lords might name Curators ad litem in the interim so might the King and that the Exchequer was accustomed to do William Zeoman contra Mr. Patrick Oliphant Ianuary 22. 1663. IN a Competition betwixt Zeoman and Oliphant anent the Estate of Sir Iames Oliphant who having killed his Mother was pursued Criminally therefore before the Justice and being Charged to underly the Law for the said Crime under the pain of Rebellion he compeared not and the Act of Adjournal was declared Fugitive and his moveable Goods ordained to be Inbrought The Criminal Libel proceeded both upon the Act of Parliament against Paricide and also upon the Act of Parliament declaring that killing of Persons under assurance of Trust to be Treasonable Hereupon the King granted a Gift of Sir Iames Forefaulture to Sir Patrick Oliphant who thereupon was Infeft It was alleadged for William Zeoman who had Right by Appryzing that there could be no respect to the Gift of Forefaulture because Sir James was never Forefault but only declared Fugitive and Denunced as said is and that any Doom of Forefaulture had been pronounced the Crime behoved to have been proven before an Assize else there could be no Forefaulture neither could the Donator possess medio tempore till the Crime were yet put to the Tryal of an Assize because Sir Iames is dead The Lords found that the Gift of Forfaultuee could not be effectual for the Reasons foresaid and found that the Act against Paricide could be no foundation of a Gift because it only excluded the Murderer and his Descendents to succeed to the Person Murdered by declaring expresly that the Murderers Collaterals should succeed and so there was no place for the King And as for the other Act of Murder under Trust they found that there being no probation it could work nothing and there is no doubt but though there had been Probation that Act of Murder under Trust doth not directly quadrat to this Case upon that natural Trust betwixt Parents and Children but only to Trust given by express Paction or otherwise it could evacuat the benefit of the foresaid other Act anent Paricide and would prefer the Fisk to the Collaterals of the Murderer if he had done no wrong contrair to the said Act anent Paricide which is not derogat by the other Wallace contra Edgar Eodem die IAmes Wallace as Assigney by Iames Scot to a Decreet obtained against Iohn Edgar in Drumfreis having Charged thereupon Edgar Suspends and alleadges Compensation upon Debts due by Scot the Cedent to the Suspender before the Intimation of his Assignation and therefore according to the ordinary Course Debts due by the Cedent before Intimation are Relevant against the Assigney and condescends upon several Bonds and Decreets against the Cedent assigned to the Suspender before the Chargers Intimation The Suspender answered that albeit any Debt due by the Cedent to the Debitor before Intimation will be relevant to compense against the Assigney yet that will not extend to Sums assigned to the Debitor before the Chargers Assignation unless that Assignation had been
and so would not insecure Creditors doing diligence by Arrestment Lyon of Muirask contra Heretors of the Shire Eodem die LYon of Muirask having been Commissioner in the Parliament 1648. did by vertue of the Act of Parliament 1661. Allowing Commissioners Charges to these who served in Parliament 1648. Who adhered to the Engadgment charges the ââeretors of the Shyre to meet and Stent and their being a Stent made conform to the Valuation he Charges thereuponâ some of the Heretors Suspends and alleadge that they were not charged to meet and so the Stent Roll is null 2ly That is not instructed that the Charger attended all the dayes in the Parliament 3ly That the Roll ought to be made according to the Retour and not to the Valuation conform to the Custom before the troubles The Lords found that seing the Heretors who met expressed in the Stent Roll that all the Heretors were charged that it was sufficient though the Executions against each on of them was not now produced and because the Sedârunts of the Parliament 1648. were not to be found They found he had right to the whole Charges during the Parliament unless for such time as they shall prove by his oath that he was absent but found that the Stent Roll ought to be according to the Retour and not to the Valuation Lady Greenhead conra Lord Loure February 10. 1665. THe Lady Craig and the Laird of Greenhead her second Husband pursues the Tenents of Craig wherein she is Infeft for Mails and Duties In which Process my Lord Loure coââpears for his Interest and alleadges that he having Appryzed the Estate of Craig and being Infeft thereupon hath raised Reduction of the Ladies Infeftment on this Reason that a Part of his Sumes being anterior to the Ladies Infeftment who was competently provided by her Contract of Marriage in 30. Chalder of Victuall and this additional Infeftment of fifty Chalder of Victual being betwixt most Conjunct Persons Husband and Wife in so far as it is posterior to the Pursuers lawful Debt ought to be Reduced upon the Act of Parliament 1621. The Pursuer answered the Reason ought to be repelled First Because the Act of Parliament being only against gratuitous Dispositions made by Bankerupts in prejudice of their lawful Creditors is not relevant seing Craig the Disponer was not a Bankerupt 2ly As he was not a Bankerupt so neither was heâ insolvendo because the Reversion of his Estate is sufficient to pay his Debt albeit the Same were affected with this additional Joynture It was answered for the Defender that albeit the Title and Narrative of the Act be against Bankerupts yet the Statutory part thereof is against all gratuitous Dispositions by Conjunct Persons so that the Defender needs not alleadge that either the Disponer was Bankerupt or insolvendo but that the Ladies Infeftment is betwixt Conjunct Persons without an onerous Cause The Pursuer answered that the Disponer was neither Bankerupr nor insolvendo and the Defender can have no Interest unless there were fraud or prejudice which the Defender cannot alleadge because the Pursuer is content that the Defender have access by his Appryzing to the Joynture Lands In so far as will satisfie his Annualrents and by the Act betwixt Debitor and Creditorâ the Lords are impowred to restrict Appryzings to their Annualrent and so he can pretend no prejudice providing he assigne the Lady to his Appryzing in so far as he satisfies his Annualrent out of her Additional Joynture The Lords found the answer to the Reduction Relevant upon purging of the Appryzers prejudice not only by admitting him to have access to the Appryzed Lands upon Assignation as said is during the Legal but with Declaration that if the Lady Redeemed not within the Legall the Lands should be irredeemable and the Lady totally excluded Earl of Lauderdail contra Lord Oxfuird February 11. 1665. THe Earl of Lauderdail his Guidsir being Infeft in the Barony of Musselburgh which is a part of the Abbacy of Dumferling by a Gift from King Iames in Anno 1584. Excepted by the Act of Parliament for Annexation of Kirklands in Anno 1587. And repeited in the Act of Parliamet 1593. His Father got a Gift in Anno 1641. And Oxfuird got another the same year from the King as Heir to Queen Ann his Mother who had a Heretable Disposition of the whole Lordship of Dumferling from the King after Lauderdails first Right Lauderdail obtained Conformation of his first and subsequent Rights in the Parliament 1661. Declaring all Rights formerly granted by the King since Lauderdails first Right void Which Ratification bears an express provision That it shall not be prejudged by the Act salvo jure cuâuslibet The Defender alleadged absolvitor in hoc judicio possessorio because his Father was Infeft by the King in Anno 1641. And by vertue thereof in possession twenty years before this persuit and as for his Ratification the Defender not being called thereto it cannot take away his Right being founded super jure communi untill the Pursuer insist in Reduction In which case the Defender shall answer but is not oblidged to answer in hoc judicio and as for the exception of the Act salvo jur It s against the common Law and the Act salvo jure is posterior without repeiting that exception The Pursuer opponed his Ratificatiom excepting the Act salvo jure which being done upon the King and Parliaments certain knowledge upon consideration of Lauderdails prior Right The Lords cannot be Judges to reduce the Sentence and Statute of Parliament as Durie observes to have been found in the Case of the Earl of Rothes and Iohn Stewart of coldinghame The Defender repeiâed his answer and for these Decisions opponed the Tennor of the Act salvo jure 1633. And repeited 1661. Whereby the Lords are ordained to decide in the Rights of privat Parties according to Law without respect of Ratification or other privat Statuts in favours of particular Persons such as this which being after this decisions clears and enlarges the power of the Lords The Pursuer opponed his Ratification and exception of the Act salvo jure which bears expresly That it should stand as a publick Law and so was no privat Statute mentioned in these Acts Salvo jure The Lords having considered the Case and that such exceptions from the Act Salvo jure were of dangerous consequence to the Leidges They ordained the Parties before answer to dispute the point of Right as if such an exception of the Act Salvo jure had not been granted but they thought that Defense upon a possessory Iudgement being but a point of form whereby the Rights of Parties were not competent by exception or reply the Parliament might dispense therewith and also might repone Parties as to the matter of Prescription or quoad minor non tenetur placitare but if without these and such the Pursuer had a prior valid Right The Lords were loath to enter upon the case of
ordinar and known but here the Casualities belonging to the Bailliâ proprio jure the Constitution of the Burgh could not prejudge them even albeit the Lord of the Regalities consent was thereto produced seing the Ballie consented not but as to the Possession and Prescription whether the Town could Prescribe the Right of the Civil Jurisdiction albeit the Baillie exercised the Criminal Jurisdiction of Bloods or whether the Town could Prescribe their Right of a part of the Civil Jurisdiction in so far as concerned Trade The Lords superceeded to give answer while the first of Iune and that they had time to consider the Depositions of the Witnesses fullie Creditors of Lord Gray contra Lord Gray Eodem die CErtain Creditors of the Master of Grayes being Infeft in Annualrent out of certain of his Lands pursues Poynding of the Ground It was alleadged for the Lord Gray his Son absolvitor because he has Right to an Appryzing and Infeftment of Alexander Milne which is expired and prior to the Pursuers Infeftments It was answered that the Appryzing was satisfied by the Umquhile Master of Gray and a blank Assignation thereto was taken which was amongst the Masters Writs and this Lord filled up his Name after the Masters death this being unquestionably relevant the difficultie was concerning the manner of the Probation The Lords before answer ordained Witnesses ex officio to be examined whereupon the Lord Gray's Brother was examined who acknowledged he saw the blank Assignation by his Brother and Mr. Robert Prestoun being examined and several other Witnesses above all exception and also the Lord Gray himself who acknowledged he got the Assignation blank after his Fathers death but not amongst his Writs and that he gave a Bond therefore Many of the Lords thought that seing by the late Act of Parliament the Appryzing though expyred was Redeemable from him for the Sum he truely payed for it that it were more just and safe that he should be preferred unless the Creditors would purge and satisfie the Sum and that it were a dangerous example to find so important a Writ as this Assignation to be taken away by Witnesses yet the plurality found the Testimonies so pregnant and unquestionable They found the Reply proven thereby and found the Appryzing retired and satisfied by the Debitor and so extinct Earl of Landerdail contra Viscount of Oxenfoord last of February 1666. THE Earl of Lauderdale being Infeft in the Barony of Muslburgh which is a part of the Abbacie of Dumfermling and was Erected into a Temporal Lordship in favour of the Lord Thirlstoun thereafter Chancellourâ the Lord Lauderdales Grand-fatherâ in Anno 1587. Before the Act of Annexation wherein the Erection of Musleburgh to the Lord Thirlstoun is expresly excepted Thereafter in Anno 1592. the Queen was Infeft by the King in Liferent in the Abbacie of Dumfermling with the consent of the Lord Thirlstoun as to Musleburgh and his Resignâtion as that effect shortly after that same year the King gave the Queen an Heretable and Irredeemable Right of the whole Abbacie of Dumfermling which was Confirmed by a Printed Act of Parliament the Queen lived till the Year 1618. After which the King was served Heir to his Mother in the Abbacie of Dumfermling and Infeft therein being then Prince The King gave an Heretable and Irredeemable Right to the Lord Oxenfoords Authors of the Teynds of Coutsland as a Part of the Lordship of Musleburgh in Anno 1641. And shortly thereafter His Majesty did renew the Earl of Lauderdales Infeftment of the Lordship of Musleburgh with a novodamus Lauderdale being Forefaulted by the Usurpers Swintoun got a Donative of the Lordship of Musleburgh and amongst the rest of the Teyn is of Coutsland and did raise Inhibition and Reduction of their Rights After the Kings Restauration the Earl of Lauderdale obtains his Infeftment Confirmed in Parliament with an express Exception therein that it should not be derogat by the Act salvo jure raises Inhibition of the Teynds and pursues Action of Spuilzie and also of Reduction It was alleadged for the Defender absolvitor because he stands Infeft in the Teynds lybelled by Infeftment granted by the King before the Earl of Lauderdales Infeftment pursued on and by vertue of his Infeftment King Charles the first and Queen Anne his Authors have been in peaceable Possession uninterrupted since the Year of God 1593 And therefore their Right is accomplished and established by Prescription It was answered for the Pursuer that the Defense ought to be Repelled because since the death of Queen Anne who died in Anno 1618. Till the Interruption made by Swintoun by Inhibition and Reduction in Anno 1656. there are not 40â years run and till the Queens death the Earl of Lauderdales Grand-father could not pursue because he had granted Resignation in her favours for her Liferent contra non valentem agere non currit Prescriptio So Wyves Provisions in their Contract of Marriage Prescribe not from their Date but from the time of their Husbands death all Obligations Prescribe only from the Term of payment and Infeftments and Oblidgements of Relief from the Distresse It was answered for the Defender that this Defense stands still Relevant First because as to any interruption made by Swintoun it cannot be profitable to the Pursuer because he derives no Right from Swintoun And as to the Queens Liferent Infeftment consented to by Thirlstoun the Queen never accepted the same but an Heretable Right from the King that same Year by which Heretable Right only she possest and did all Deeds of Property by entring of Vassalls and granting of Fews which a Liferenter could not do which Heretable Right Thirlstonn could not misken because by a special Printed Act of Parliament it is Confirmed in Parliament and past the great Seal himself being Chancellor It was answered for the Pursuer that the Defense and Duply ought to be Repelled in respect of the Reply because the Confirmation of the Queens Heretable Right in Parliament was salvo jure and he was secured by the Act salvo jure in the same Parliament and that he knew thereof at the passing of the great Seal is but a weak presumption and such knowledge could not prejudge him nor was he in any capacity to pursue upon his own Right for attaining possession seing the Queens Liferent Right and Heretable were both compatible and it was evident the Queen would exclude him by his Consent in the Liferent Right neither can the Queens acceptance be questioned after so long time seing the acceptance of the Liferent was to her advantage and profit before she got the Fee and did exclude Thirlstouns prior Right which would have undoubtedly reduced the Queens Right and was excepted in the General Act of Annexation and would not fall under the Act salvo jure It was also severally alleadged that this Earl of Lauderdales late Right was Confirmed in Parliament 1661. And all other Rights declared void and that the
modo by Dissolution The Pursuer answered First That albeit the King or his Officers might quarrel his Right as not proceeding upon Dissolution or any other having their Right upon Dissolution yet the Defender cannot especially seing he hath Homologat the Pursuers Right his Predecessors to whom he is Heir having taken Infeftment thereupon likeas the Pursuer has satisfyed the Kings Interest by giving Bond to the Kings Advocat to hold the Lands Waird of the King in the same way as the Defender would therefore the Advocat hath declared he will not concern himself 2dly the Pursuer having obtained a new Right of the King since the Act of Parliament 1661. the same must be valide to him as to these Vassals who have or shall consent because the exception of the Act expresly bears that such a consent is equivalent as if the Vassal had Resigned in the Kings Hands in favour and for new Infeftment to the interposed Superior and had then taken a subaltern Right of him against which there can be no pretence so that by a Right in the exception it cannot be meaned a perfect Right proceeding upon Dissolution because that would be valide without the Vassals consent but that the Vassals consent being equivalent to a Resignation makes the Right valide without Dissolution Which the Lords found Relevant the Duke proving a sufficient consent but it was not Decided whether Major Ballantines taking Infeftment would import a sufficient consent conform to the exception of the Act so that he might not thereafter return to the King Iack contra Iack Iuly 15. 1669. PAtrick Iack having only three Daughters Margaret his eldest Daughter Married Iohn Dowglas and there is a Contract betwixt Iohn Dowglas and the Tutors of the other two Daughters dividing there Fathers Inheritance in three parts and mutally Disponing the same with Procuratory and Precept and there being a Salmond Fishing holding Waird of the King which fell to Margarets share Iohn Dowglas takes Infeftment upon the Tutors Precept Disponing for the other two that Fishing after his Death the said Margaret takes a Gift of Recognition of the said Salmond Fishing as falling by the Infeftment taken by Iohn Dowglas without consent of the Superior and thereupon pursues Declarator Katharin Iack and Robertson her Spouse and the other Sister pursue a Reduction of the Contract of Division as done by their Tutors in their Minority to their Lesion and in answer to the Recognition alleadged First That this Recognition occurred in the time of the English when Recognitions were excluded and such Infeftments by the Law then in use were allowed 2dly The Infeftment here granted proceeded only upon the Disposition of their Tutors whose acts except in what is proper to the Administration of their Office is void It was answered as to the first that they opponed the Decision in the case of Sir George Kinaired against the Vassals of the Master of Gray by which it was found that Infeftments taken of Waird-lands without the Superiors consent even during the Usurpation inferred Recognition and to the second that the Division among the Daughters was an act of Administration that the Daughters might have been compelled to do It was answered that there is no such Decision produced and that in the case of the Vassals of Gray they did continue in Possession several years after the Kings Restitution and did not take Confirmations but here the said Margaret one of the Sisters who should have taken Confirmation before she had continued Possession cannot have benefit by her own fault and make use of a Gift of Recognition in her own Person proceeding upon her own and her Husbands fault neither can the Division be a lawful act of Administration of the Tutors in so far as they granted them Precepts of Seising to be holden of their Pupil which no Law could have compelled them to do but only Procuratories of Resignation likeas it was Iohn Dowglas fault not to make use of the Procuratory but of the Prccept The Lords found no Recognition incurred but because the Parties might have been troubled if any other had taken the Gift they ordained the other two Sisters to pay their part of the expences of the Gift Mr. Archibald Dennistoun contra Semple of Fulwood Iuly 16 1669. THe Lairds of Fulwood elder and younger and Dennistoun being appointed Overseers by Culgrain to his Daughters the eldest Daughter being Married to Mr. Archibald Dennistouns Son there is a Contract betwixt Mr. Archibald and the three Overseers taking burden for the Daughters by which the Estate of Culgrain and Mr. Archibalds Estate are both settled in the Person of his Son and the Overseers are obliged to cause the Minors and their Curators become obliged to relieve Mr. Archibald of 17000. Merks Mr. Archibald Charges Fulwood upon the Contract who Suspends alleadging that the Clause can only import that he is lyable for his own part but not in solidum seing the Clause bears not the Overseers to be bound conjunctly and severally It was answered that the obligement is not for payment of a Sum which is divisible but for doing a Fact which is indivisible viz. the Minors being become bound to relieve which is all one as if the Overseers had been obliged to cause the Minors Subscribe a Bond of releif which could not divide but would have obliged every one of them in solidum It was answered that the result of the obligation being releif of Sums which are divisible the obligation at least the Damnadge and Interest succeeding in place thereof ought to be devisible for the obligation being factum alienum imprestable to the Overseer and the third Overseers that refuses to concur being the Chargers own Brother there is no reason that the Overseers who had no Office or obligement but were only Overseers which is not nomen juris should be lyable for the Chargers own Brother his third part thereof The Lords found them only lyable pro rata Barclay contra Barclay Iuly 20. 1669. THe Laird of Towy having only one Daughter Elizabeth Barclay and his Lands being provided to Heirs Male Dispones his Estate to his Daughter In which Disposition there being not only a Procuratory of Resignation but a Prcept of Seising the said Elizabeth was Infeft upon the Precept and being an Infant her Friends thinking it might infer Recognition took a Gift of the Recognition and now pursues Declarator thereon against the Tutor of Towy Heir Male and Captain Barclay as pretending Right by Disposition to the Estate It was alleadged for the Defenders Absolvitor because the Disposition granted by umquhile Towy to the Pursuer his Daughter was granted on Death-bed at the least it was retained by the Defunct and never delivered till he was on Death-bed and thereby it is null and cannot infer Recognition because the Law upon just consideration that Parties are presumed to be weak in their Minds and easily wrought upon after contracting of the Disease of which they Died has
Few-dutie produced he acknowledged the Pursuer to be Proprietar 2dly If any such Back-bond was no way granting the same he offered him to prove that it was Conditional so soon as the said Umquhile Robert Lord Kirkcudbright should require Ita est he has never required The Defender alleadged he had done the equivalent because in a Double Poynding formerly pursued be the Tennents he had craved Preference and the Pursuer alleadged upon the Condition of Requisition in the Back-bond and also that be the Back-bond the granter and his Wifes Liferent was preserved whereupon the Defender was excluded The Lords ââund the Alleadgeance of the said Double Poynding was not Equivalent to the Requisition and therfore found the Replyes Relevant and Assigned a day to the Defender to produce the Back-bond and to the Pursuer ââââprove the Qualitieâ thereof and so found the Reply not to acknowââge the Defense but reserve it to either Partie to alleadge contra âoducenda and found the Personal Obligdement sufficient to dâbar the Purââââ albeit the Defender had no other Real Right seeing thereby she was oblidged to grant a Real Right to the Defender Alexander Barns contra Applegirth Ianuary 1. 1662. ALexander Barns having Conform to the Act made by the Iudges obtained Letters of Horning Summarily at his Instance as Heir to his Brother Iames Bârns upon production of his Retour and a Bond granted by Iohnstoun of Applegirth and thereupon having Denunced him and Apprized his Lands Applegirth Suspends on this Reason because the foresaid Act of the Iudges was now Void and by the late Act of Parliament confirming their Judicial Proceedings liberty is granted to quarrel and reduce them upon Iniquity and this was Iniquitie to charge him Summarily contrair to Law The Charger answered non Relevat because he followed the Order in use at that time and the liberty of Quarrelling is for Unjustice in the Matter and not in the Order of Procedor for then all their Debates would be null because they proceeded not upon Continuation and Letters The Lords sustained the Charge as a Libel to the effect the Suspender might have his Defenses if he any had to be proven not iâstantlie but upon Terms but declared the Apprysing should stand valid for whatsomever was found due but prejudice to the Horning as accords Sir Alexander Hoom of St. Bathanes contra Orr and Pringle Ianuary 3. 1662. SIr Alexander Hoom of Saint Bathanes having pursued Improbation and Reduction upon Inhibition against Iohn Orr and Wateâ Pringle and insisted for all Writs of the Lands in Question made to the Defenders Predecessors and Authors of the Lands in Question and the Defender having alleadged no Process for Writs made to his Authors unlesse they were called and having condescended particularly on the Authors to be called The Pursuer offered him to prove that these Authors were fully denuded in favours of the Defender and that the Writs were in the Defenders own hands The Defender answered non Relevat though they were in his hands because his Authors being lyable for warrandice ought to be called to defend there own Rights The Pursuer answered the Defender might intimate to them the Plea The Defender answered he was not oblidged to Intimate the Plea but the Pursuers to call the Authors in this Case the Summonds was sustained for his Authors Writs in Anno one thousand six hundred fiftie nine Years And now the Pursuer insisting for the Defender taking a second time to produce The Defender having a reviewe of the said Act and Interlocutor The Lords reponed the Defender and would not sustain the Pursuit or Act as to the Authors Rights uncalled Tippertie contra his Creditors Eodem die Innes of Tippertie being charged by several of his Creditors Suspends and alleadged payment made by the Suspenders Son to them The Chargers answered non Relevat because they declare the Charge to be to that Sons behove who payed them so that they must alleadge it was payed by his means The Suspender Replyed That seeing they declared it to be to his Sons behove the payment was sufficient because he offered him to prove by a Transaction the Son was oblidged to pay his Debts The Charger answered denying any Transaction if it were proven the Suspender behoved to instruct his part of it performed The Lords found the Reasons and Reply relevant reserving the said alleadgance against the Transaction when produced James Seaton contra Anothonie Rosewall Jannuary 4. 1662. JAmes Seaton and others pursue Anthonie Rosewall to hear it found and declared That two Apprysings to which he had right were fully Satisfied by his and his Authors Intromission within the Legalls respective in the Compt. The Defender alleadged he was only comptable according to his intromission conform to the Act of Parliament one thousand six hundred twenty one anent Apprysings and not according to a Rental of the Lands as they payed when he entred The Pursuers answered that that they could not charge him by his Yearly Intromissions which they could not know but he behoved to charge himself with the Rent of the Lands as they payed at his entrie thereto and if any Deductions or Defalcations were in subsequent Years by necessary setting of the Lands at a lower Rate poverty of the Tennents or waste he behoved to condescend there upon and their the Reasons and Veriâty thereof for in Law an Appryzing giving jus pignoris pratorij the Appryser is comptable for his Diligence having once entered in Possession and thereby excluded the Debitor and Con-creditors from the Possession It were against Law and Conscience to say That if he should abstain and suffer the Tennents to keep the Rent or Depauperat or the Lands to be waste without any Diligence that his Legall should thereby expire and the Debitor and Creditor should be excluded as was found in the Case of the Earl of Nithisdale and Countess of Buckcleugh and was several times so found be the Lords before The Lords found the Defender comptable by a Rental as the Lands payed the time of his Entry but Prejudice of his just Defalcations he clearing a reasonable Cause thereof and proving the truth of the same for they thought that albeit Apprizers are only comptable for their Intromission That is only for such parts of the Lands as they intend only to possesse and not for these they never possest yet in so far as they once entred to possesse they must do Diligence It was further alleadged that no allowance ought to be given to the Defender of a Composition he had given to the Superiour in respect a prior Appryzer had given a Composition before and so he was oblidged for none The Defender answered that both the Prior and Posterior Composition was within a Years Rent which was due to the Superiour which the Lords allowed seeing it was not alleadged that the Composition of a Years Rent was discharged by the Superiour but only according to the Custome of the Burgh where the Lands
Disponed these Lands to the Pursuer with her consent Subscribing the Disposition It was Duplyed The Defenders Subscription and Consent was Extorted metus causa whereupon she has Action of Reduction depending and holds the production satisfied with the Writs produced and repeates her Reason by way of Duply viz. if she was compelled by her Husband it was by just fear because she offered to prove by Witnesses that he threatned her to consent or else he should do her a mischief and that he was a fierce man and had many times beaten her and shut her out of Doors and offered to prove by the Nortar and Witnesses Insert that at the time of the Subscription she declared her unwillingness The Lords found the Defense and Duply Relevant David Wilkie contra Sir Andrew Ker. Eodem die DAvid Wilkie and others Tacks-men of the Castoms Charged Sir Andrew Ker for the Tack-Duty of the Customs of the Border Anno 1650. Set by them to him he Suspends and alleadges by the publick Calamity of the English Entry in Anno 1650. in Iuly Traffick was hindered and by the Kings Proclamation against Commerce with these The Charger answered it was a Casuallity ex natura rei and that they had payed without Defalcation and the Suspender had profit in former years The Lords before answer Ordained the Suspender to Compt upon what benefit he got in Anno 1650. and what Profite above the Tack-duty in former years Adamsons contra Lord Balmerino Iune 26. 1662. ADamsons being Infeft in an old Annualrent out of two Tenements in Leith and having thereupon obtained Decreet of Poynding the Ground in Anno 1661. and insisting for poinding one of the Tennents Goods now belonging to the Lord Balmerino for the whole Annualrent Balmerino Suspends on these Reasons First The Heretor against whom the Decreet of poinding was obtained and all the Tennents were Dead and therefore it can receive no summar Execution against the present Heretor and his Tennents but there must be a new Decreet against them Secondly Balmerino hath peaceably possessed this Tenement twenty or thirty years and thereby hath the Benefit of a possessory Judgement by which his Infeftment cannot be questioned without Reduction and Declarator Thirdly The Englishes possessed this Tenement several years by the publick Calamity of War and therefore there must be Deduction of these years Annualrents as is frequently done in Feu-duties Fourthly The two Tenements being now in the hands of different singular Successors Balmerino's Tenement can only be poinded for a part of the Annualrent The Pursuer answered that Poinding of the ground is actorialis chiefly against the Ground and therefore during the Obtainers Life it is valued not only against the ground while it belonged to these Heretors and Possessors but against the same in whosoever hands it be that the Moveable Goods therein or the Ground Right thereof may be Apprized To the second Annualrents are debita fundi and a Possessory Judgement takes neither place for them nor against them To the third though in some cases Feu-duties ceass by Devestation that was never extended to Annualrents due for the profit of a Stock of Money To the fourth the Annualrent being out of two Tenements promiscuously The Annualrenter may Distress any part for the whole in whosoever hands the Tenement may be The Lords Repelled all these Defenses but superceded Execution for one half of the Annualrent for a time and Ordained the Suspender to give Commission to Balmerino to put the Decreet in Execution against the other Tenements for its proportion for his relief medio tempore Wilson contra Thomson Eodem die WIlson having obtained Decreet against Thomson for poinding of the Ground of a Tenement of Land Thomson Suspends on this Reason that the Chargers Infeftment is base and before it was cled with Possession the Suspender was publickly Infeft and thereby excludes the base Infeftment though prior The Charger answered that the Reason ought to be repelled because he had used Citation upon the base Infeftment before the publick Infeftment by which Citation res fuit letigiosa The Lords Repelled the Reason in respect of the Answer and found the base Infeftment validat by the Citation whereupon the Decreet followed Ruthven contra Laird of Gairn Iune 27. 1662. THe Laird of Gairn having Infeft his Son in his Estate reserving his own Liferent after his Sons Death his Oye pursues him for an Aliment out of the Estate conform to the Act of Parliament appointing the Heir to be Entertained by the Donatars to the Ward Conjunct-feears or Liferenters thereof The Defender alleadged absolvitor because the Act of Parliament cannot be extended to his case who voluntarly Infeft his Son in his Estate with the burden of his Liferent Secondly If any Aliment were due the Mother who is Liferenter must bear her part Thirdly Aliment is only due where the Heir hath no other means But here the Heir hath a Stock of Money which though Liferented by his Mother yet he may Entertain himself out of the Stock The Pursuer answered First That the Act of Parliament anent Alimenting of Heirs is generally against Liferenters without exception Secondly The Disposition by the Defender to the Son was for a Tocher worth all the Estate he then had wherefore no part was Liferented by the Son or his Wife the Pursuers Mother but only a sum of Money which came by her self and there is no reason that the Stock thereof should be exhausted for the Pursuers Aliment the Defender having now succeeded to a plentiful Estate The Lords Repelled the Defense in respect of the Replyes Mr. David Watson contra Mr. Iames Ellies Eodem die MR. David Watson having acquired Right to the Superiority of Stenhouse milne pursues the Feuers for their Feu-duties who alleadge First no Process the Lands in Question being Kirk-lands Disponed to a Lord of Erection and it is declared that the Lords of Erection having only right to the Feu-duty till they be Redeemed by the KING at ten Years purchase by the Act of Parliament thereanent in Anno 1633. And thereby none have Right but such as subscribed the submission surrendring their Interest in the KING'S hands untill the Pursuer Instruct that his Author did subscribe the said submission he hath no Interest Secondly absolvitor from the Feu-duties 1650. and 1651. Because the Lands were wasted these Years by publik calamity of War Thirdly absolvitor from Harrage and Carrage because all Services are reserved to the KING by the said Act of Parliament The Lords assoilzied from Harrage and Carrage but differed for the Feu-duty being smal and found no necessity for the Pursuer to instruct that this Author did subscribe the Surrender after so long time but that the same was presumed for his so long bruiking the Fee Sir William Wilson contra Sir William Murray Eodem die WIlson having Apprysed Sir William Murrays Estate pursues him and his Tenents for Mails and Duties who alleadged that by the Act
Nottar as Town Clerk for the time The Lords sustained the alleadgeance to prefer Mackitrick The Executors Mr. Iames Fairly Minister of Leswald contra the Parochiners Iuly 5. 1662. THE Executors of Mr. Iames Fairly having obtained Decreet before the Comissaries against the Parochiners for the Ann as being the hail Year 1658. In respect the Minister died in February in the Year 1658. The Decreet was Suspended on this Reason that the Ann could only be half a Year seeing the Minister died before the Sowing of the Cropt or Whitsonday because if a Minister serve after Whitsonday he has the half of that years Stipend albeit he be Transported or Deposed otherwayes if a Minister should serve the whole Year till Michalmass day and then be Transported or Deposed he should get nothing so that the Ann being half a years Stipend more then the Minister served for he having only survived till Michalmes 1657. Has only the right to the Michalmes proprio jurae and half a Year thereafter as the Ann. The Charger answered That in Teinds and Stipends there are not two Terms but Michalmes for all and therefore if the Incumbent be disposed or transported before Michalmes he has nothing that Year but if he die after Michalmes any time before the beginning of the nixt Year proprio jure he has the Year he died in and the half of the next as his Ann but if he live till Ianuary in the year ensuing he has that whole year as his Ann. Which the Lords found relevant and therefore the Lords found the Letters orderly proceeded Duncan Drummond contra Colline Campbel Eodem die DVncan Drummond pursues Colline Campbel for payment of a Debt of his Fathers because in a Writ betwixt his Father and him The Father had Disponed all his moveables to him and he had undertaken his Fathers Debt whereby the Pursuer as Creditor had interest to pursue him to pay this Debt The Defender having alleadged that the Band and Disposition was never a delivered Evident either to the Father or to the Son but two blanks subscribed by them both were put in the hands of a Nottar to fill up the Bond and Disposition but before delivery both Parties resyled and desired the Nottar to Cancell and Destroy them yet Eight or Nine Years after the Nottar gave them up to this Pursuer and neither to the Father nor to the Son and the Question being how this should be proven The Lords before answer Ordained the Nottar and Witnesses insert to be examined ex Officio which being done their Testimonies proved as is alleadged before Then the Question was in jure whether the Depositation of Writs could be proven any other way then by the Oath of the Partie in whose favours the Writs were conceived he having the same in his hands The Lords found that seeing these two Writs were not produced by the Father nor the Son by and to whom they were mutually granted but by a third Partie in whose favours a Clause therein was conceived in that case the deposition probable by the Writer and Witnesses insert and by the saids Testimonies found the Writs null Robert Bones contra Barclay of Iohnstoun Iuly 9. 1662. RObert Bones having arrested certain Goods and Bestial as belonging to Iohn Wood his Debitor in the hands of Barclay pursues for making the same forthcoming The Defender alleadged absolvitor because the Goods Lybelled the time of the Arrestment were the Defender proper Goods Disponed to him by the said Iohn Wood for anterior Rests and Debts and delivered also before the Arrestment It was Replyed The Defense ought to be repelled because Wood the Disponer was Rebell and at the Horn before the delivery of the Goods at the Pursuers instance and whereby the Tradition being after the Horning the Disposition is null as being incompleat before the Horning and after the Horning the Rebel could do nothing to prejudge the KING or his Donatar or the Pursuer for the Debt whereupon he was denuded which by the Act of Parliament one thousand six hundred twenty one affects the Escheat Goods ubicunque The Defender answered That the Reply is not Relevant unless it were alleadged that the Horning had been before the Disposition for it is lawful for Creditors either to Poynd Arrest or take Dispositions of their Debitors Goods though Rebel being for Debts anterior to the Horning if the Disposition and Delivery be prior to Declarator neither can the Act of Parliament one thousand six hundred twenty one against Dispositions in defraud of Creditors operat here because the Disposition is anterior to the Horning and for an onerous cause The Lords found the Defense Relevant notwithstanding the Reply Laird of Lamertoun contra Hume of Kaimes Iuly 10. 1662. HOom of Kaimes being Infeft upon an Appryzing of the Lands of Northfield led against Lamertoun pursues the Tennents for Mails and Duties and obtains Decreet which was Suspended and Reduction thereof raised on this Reason that it was spreta authoritate judicis there being an Advocation judicially produced before the Sheriff before pronouncing at least before the Extracting of this Decreet in so far as the Suspender came to the Sheriff Court at the ordinar time of the Court Day at eleven hours and produced the Advocation but the Sheriff had fitten down that Day contrair his Custom at ten hours and had pronounced the Decreet before eleven hours The Charger answered non Relevat that the Advocation was produced before Extract not being before Sentence pronounced because albeit inferiour Judges are accustomed sometimes to stop their own Decreets after they are pronounced before Extracting yet sententia definitiva est ultimus actus judicis and the Extract is but the Clerks part so that it can be no contempt albeit the Judge would not prohibite the Extract and as to theâ other Member that the Sheriff sat his Court an hour before the ordinar time non Relevat unless he did it of purpose to anticipat this Advocation The Lordâ found the first member of the Reason that the Advocation was produced before Extract after Sentence non Relevat and as to the other member they found it relevant as it is circumstantiat to infer that it was done of purpose to anticipat the Advocation without necessity to prove otherwayes the purpose and in that case declared if the same were proven they would turn the Decreet in a Libel Iohn Ker contra Ker of Fernilee and others Eodem die IOhn Ker having granted a Bond whereupon he being Charged to Enter Heir to several persons his Predecessors and having renounced their Lands were adjudged John took Assignation to the Adjudication himself and pursues the Defenders for exhibition of the Rights and Evidents of the Lands and Delivery thereof The Defender alleadged absolvitor First Because the pursuit being upon the Pursuers own Bond now again Assigned to himself confusione tollitur obligatio The Lords Repelled this Defense Secondly absolvitor because the Pursuer can have no Interest upon
being since 1649. The Wodsetter should be comptable for the Profits more nor the Annualrents since the Date of the Wodset The Lords having considered the Woodset by which the Wodsetter bare the publick Burden found the said Clause of the Act not extended to make the Defender comptable since the Date of the Wodset but only since the Date of the offer to secure the Wodseter conform to the Act of Parliament by vertue of an other Clauses of the said Act Ordaining all Wodsetters to compt for the superplus and to possesse the granter of the Wodset he finding Caution for the Annualrents or to restrict to his Annualrent Lord Burghly contra Iohn Syme Eodem die LOrd Burghly and his Authors being Infeft by the Abbot of Dumfermling in the Coal-heugh of Keltie with power to win Coals within the bounds of the Lands of Cocklaw and Losodie pursues John Sime Heretor of Losodie for declaring his Right to win Coal in Losodie The Defender alleadged absolvitor because he and his Authors were Infeft in the Lands of Losodie with the pertinents above the Ground and under the Ground long before the Pursuers Authors Right The Pursuer answered that the Defenders Infeftment could not furnish him Right to the Coal of Losodie because it bare no power to win Coal but being only a Feu which is a perpetual Location it reaches not to Coal not being expressed especially seing in the Tenendas all the ordinary priviledges were exprest even of Peit and Turff and Coal was omitted and because the Defenders Chartor bare expresly a reservation to the Abbot and his Successors to win Coal in Losodie for their own proper use allenarly The Defender Answered that the Right of the Land being Feu with the Pertinents did extend to Coal albeit not exprest seing it was not wholly observed according to Craigs opinion and for the Reservation it did further clear the Defenders Right that seing the Abbot reserved only power to win Coal for his own use exceptio firmaâ regulam in non exceptis whereby the Defender had Right to the remanent of the Coal neither could the exception extend to the Pursuer but only to the Abbot and give to his Successors only to these Succeeding in the Abbacy viz. the Earl of Dumfermling The Pursuer answered that the Defenders Infeftment was Confirmed long after the Pursuers and that the Defenders Confirmation was not of the first Feu but of a second Right from the first Feuar and by the Act of Parliament anent Feus it was declared that Feus since March 1658. not confirmed by the King before 1584. were âull at least another Act of Parliament bare expresly that where there were divers Feus granted of the same thing the first Confirmation with the last Feu should be preferable The Lords found the Defense founded upon the Defenders Rights relevant and proven thereby and therefore found the Pursuer had only right to win Coals in Losodie for his own use and found the Pursuer Successor to the Abbots by his Infefments of the said Priviledge of wining Coal in Losodie for his own use only and found the saids Acts of Parliament that by the late Act the Right of the ancient Possessors and kindly Tenents was reserved so that if they did not Confirm before the Year 1584. They were only lyable for a greater Feu-dutie wherein the Pursuer not being Superiour had no interest and found the Defenders Infeftment that his Authors were kindly Tenents and had a 19 year tack before the Feu Patrick and Joseph Dowglasses contra Lindsay of VVormistoun December 2. 1662. PAtrick and Joseph Dowglasses pursues Catharine Lindsay their Mother as Executrix to their Father for Compt and Payment of their share of the Executry and also the said Lindsay of VVormistoun as her Cautioner found in the Testament who alleadged no Process against him as Cautioner till the Executrix her self were first discussed Not only by Compt and Sentence but also by Appryzing of her Estate Poynding of her Moveables and if nothing can be condescended upon to Poynd and Appryze at least by Registrate Horning against her Person This being but a subsidiary Action as to the Cautioner The Lords Repelled the Alleadgeance and sustained the Accompt against both superceeding all Execution against the Cautioner till the Executrix were discussed as aforesaid which is both to the advantage of the Cautioner who may concur with the Executor who is only able to make the Accompt and it is also to the advantage of the Pursuers that the Cautioner resume not the Alleadgeances omitted by the Executor and so make new Process and new Probation as oft falls out Dam Marion Clerk contra Iames Clerk of Pittencrieff Eodem die MR. Alexander Clerk his Estate being Tailzied to his Heirs Male he obliged his heirs of Line to Renunce and Resign the same in favours of his Heirs Male which Disposition he burdened with 20000. Pounds to Dam Marion Clerk his only Daughter and Heir of Line The Clause bare 20000. Pounds to be payed to her out of the saids Lands and Tenement whereupon she having obtained Decreet James Clerk the Heir Male Suspends on this Reason That the foresaid Clause did not personally oblige him but was only a real burden upon the Lands and Tenement which he was content should be affected therewith and offered to Assign and Dispone so much of the Tenement as would satisfie the same The Lords found the Suspender personally obliged but only in so far as the value of the Tenement might extend in respect the Clause in the Disposition mentioned the Sum to be payed which imports a personal Obligement and whereby the Suspender accepting the Disposition is obliged to do Diligence to have sold the Tenement and payed her therewith and therefore found the Letters orderly proceeded superceeding Execution of the principal sum for a year that medio tempore he might do Diligence to sell and uplift George Steuart contra Mr. James Nasmith December 6. 1662. GEorge Steuart having obtained the Gift of the Escheat of one Hume pursues a general Declarator wherein compears Mr. James Nasmith having a Declarator depending of the same Escheat and alleadged he ought to be preferred having his Gift first past the Privy Seal and had the first Citation thereupon George Steuart answered that his Gift was first past in Exchequer and the Composition payed in March before the Rebel was Denunced on Mr. James Nasmiths Horning whose Gift past in Exchequer in June only and alleadged that he being postponed through the negligence of the Keeper of the Register whom he had oft desired to give him out his Gift it must be esteemed as truely then done and as to the Citation both being now pursuing he having done full Diligence could not be postponed and produced an Instrument taken against the Keeper of the Register bearing him to have acknowledged that the Gift had been sought from him formerly The Lords having considered the Instrument and that it was after Nasmiths Gift
was Sealed although it mentioned former Requisitions that was but the assertion of the Nottar or of the Keeper of the Register and therefore preferred Nasmiths Gift Andrew Clapertoun contra Lady Ednem December 11. 1662. IN Anno 1621. Umquhile Sir Iohn Edmistoun of Ednem granted a Bond of Provision to Iean Stirling of two Bolls of Victual which he obliged himself to pay to her out of the Mains of Ednem or any other of his Lands by vertue thereof she was in Possession out of the Mains of Ednem till the year 1640. Andrew Clappertoun her Son and Assigney pursues the Lady Ednem as Intrometter with the Rents of the Mains of Ednem to pay the Pension since The Defender alleadged Absolvitor because she stands Infeft in the Mains of Ednem by vertue of her Liferent and thereupon has possessed and the Pursuers Pension is meerly personal and does not affect the Ground nor is valid against singular Successours and though conceived in the best way can have no more effect then an Assignation to Mails and Duties which operats nothing against singular Successors unless it had been an Ecclesiastical Pension clothed with Possession having Letters conform which only is valid against singular Successors The Lords found the Defense Relevant Iohn Oglvie contra Sir Iames Stewart Eodem die PAtrick Leslie and several Cautioners granted Bond to Sir Iames Stewart who assigned the same to John Denholme who used Execution in his Cedents name and took some of the Debitors with Caption and being in the Messengers hands this Iohn Ogilvie assisted to the making of their escape and thereupon being incarcerat by the Magistrats of Edinburgh which concourse of their Authority by their Officers as use is in executing Captions within Edinburgh by aggrement the said Iohn Ogilvie payed 800 lib. to be free and thereupon obtained Assignation from Sir Iames Stewart to as much of the Bond with warrandice from Sir Iames own deed and excepting from the warrandice an Assignation formerly made by Sir Iames to Iohn Denholme Iohn Ogilvie having pursued one of the Debitors he was assoilzied upon a discharge granted by Sir Iames Stewart and Iohn Denholme and they both with one consent whereupon Iohn Ogilvie charged Sir Iames upon the Clause of Warrandice who Suspended and alleadged that the foresaid discharge was nothing contrair to his oblidgement of Warrandice because in the Warrandice Iohn Denholmes Assignation was excepted and consequently all deeds done by Iohn as Assigny Ita est this discharge was granted by Iohn Denholme and would be valid by Iohn Denholme subscription and there was no prejudice done to this Pursuer by Sir Iames Stewarts subscription seing without it the discharge would exclude him The Charger answered that Iohn Denholme subscribed but as Contenter and was not mentioned in the discharge as Assigney The Suspender answered that the discharge being with his consent was as effectual as if he had been principal Partie and each of them discharged with others consent The Lords found the Reason of the Suspension relevant George Loggie contra Peter Loggie Eodem die GEorge Loggie having borrowed 800 merk from Peter Loggie his Brother gave a Wodset therefore The said George being an old man without hope of Children the Reversion was only granted to George and the Heirs of his own Body and his Liferent of the Wodset Lands was Reserved without mentioning of any Back-tack Dutie or Annualrent George having used an Order and Consigned the 800. merk obtained Declarator Peter Suspends and alleadges no Redemption ought to have been till the Annualrent were consigned with the Principal The Charger answered that the Contract of Wodset bare no Annualrent The Suspender answered that albeit it did not yet he having lent his Money in these Terms in hopes of Succession and his Brother having now Married a young Wife he ought not to take advantage of him seing the Annualrent is due in equitie for the profit of the Money The Lords in respect of the Tenor of the Contract of Wodset found the Letters orderly proceeded without any Annualrent and that in this case it could not be due without ãâã had been so pactioned and agreed Lord Balmirino contra Town of Edinburgh December 18. THe Lord Balmirino pursues the Town of Edinburgh for Spoliation of the Tynds of the Aikers of Restalrige whereof the Towns Hospital had a Tack which being expired Inhibition was used yearly for several years The Defender alleadged absolvitor from any Spuilzie of Teinds because since the KING' 's Decreet Arbitral and the Fyfteen and Seventeen Acts of Parliament 1633. Spuilzie of Teinds is taken away especially by the said Fyfteen Act. The Parliament Ratifies a former deed of the King 's Declaring every Heretor shall have the drawing of his own Teynd and the benefit of a Valuation and in the mean time so long as the Teynds are not Valued the Heretors are only lyable for the Fyft of the Rent in name of Teynd Secondly By a Contract betwixt the Town and the Pursuers Father of the Aikers of Restalâige lyand runrig with these are set for half a boll beer the Aiker which is by the Contract Declared to be the just and true Rate and Value thereof which by necestar consequence declares the Value of the Teynds now in Question being runrig with the other The Pursuer answered to the first That the foresaid Act of Parliament was only meaned in relation to the KING'S Annuity and albeit the foresaid Clause therein be general yet it is clear by the 17. Act which is posterior that the first part shall be the Teynd after the Valuation duely led which hath been constantly allowed by Custom of the Commission of Plantations which gave only warrand to Heretors to lead their own Teynd during the Dependence of a Valuation and therefore Spuilzie of Teynds have been frequently sustained since the saids Acts As to the second whatever be the way of conception of the Tack for the other Aikers not in question be though it did acknowledge the same to be the just Value thereof yet it cannot extend to other Teynds seing where the Parties agree in the matter they are not solicitous for the conception of the words which cannot be drawn in consequence to any other matter The Lords repelled both these Defenses but declared they would not sustaine Spuilzie as to the Oath in Litem but admitted the Value of the Teynd to the Pursuers probation Reserving to themselves the modification of the prices if they should be exorâitantly proven but not of the quantaties Lady Tursapie contra Laird of Tursapie December 20. 1662. THE Lady Tursapie pursues the Laird of Tursapie who succeeded as Heir to his Brother her Husband for the Aliment of the Defuncts Family till the next Term after his Death and specially for the Alinent and to the Pursuers Son Heir appearand to his Father The Defender alleadged absolvitor because the Lybel was no wayes relevant against him as Heir but by the
Reduction of that Disposition as being done in lecto Aegritudinis It was alleadged for the Defender primo Minor non tenetur placitare de Haereditate Paterna The Defender is Minor and now the Question of Reduction is upon her Fathers Heretage It was Answered that the maxime holds not where the Question is of the Disposition made to the Minor whether valid or not but where the Question is not upon the Minors Right but upon the Fathers Right which Right of the Fathers or Predecessors the Minor is not holden to Dispute The Lords repelled this Defense in respect of the Reply 2dly It was alleadged absolvitor because the Pursuer having only a Personal Provision in his Favours conceived in the Contract of Marriage and there being as yet no Infeftment to Heirs Male the maxime that no deed upon Death-bed can be prejudicial to Heirs can be extended to none but such as are Special Heirs and not to those who are by destination Heirs which is less then if a Charter had been granted to the Heir Male which according to Craigs Opinion is but as nudum pactum and an uncompleat Right and could not compell the Heirs of Lyne to Resign The Pursuer answered that the maxime is general and there is no Distinction by Law or Custome whatsoever the Heirs be so that a Person having a Right to Heretable Bonds bearing Clause of Infeftment whereupon no Infeftment had followed could do nothing upon Death-bed in prejudice of the Heirs who would have succeeded unto those Bonds as to Craigs Opinion of a Charter it is against Law and the common Opinion now received that a Charter or any Provision in Write is effectual against the granter and his Heirs to compel them to compleat the same The Lords repelled this Defense 3ly It was alleadged absolvitor because the maxime can be only understood of the Heir of Lyne as nearest of blood so that nothing can be effectually done in their prejudice but here the Diposition is but in prejudice of an Heir Male and in favours of an Heir of Lyne in respect of whom the Heir of Male is but a Stranger which is the more clear because this maxime being very ancient was produced before their was any Heir Male or of Tailzie and because the Reason of the Law is founded upon the Natural Obligation Parents and Predecessors have of providing their Successors and so can do them no prejudice especially when they are weak and on Death-bed The Pursuer answered as before that the maxime is general and there is no distinction introduced by Law or Custome of Heirs Male and albeit the Law had introduced such Heirs since this Common Law yet in so far as it makes them Heirs It gives them the Priviledge of Heirs to which the Reason of the Law doth well Quadrat which is not that Natural Obligation but this presumption of Law that Persons on Death-bed are facile and weaker in their Capacities then at other times and therefore the Law disables them at that time to alter the Setlment of their Estates as they were in their Health and so allows of no deed in prejudice of any Heir of whatsoever kind although in favours of another The Lords repelled this Defense 4ly It was alleadged that the Defunct having himself constitute this interest of the Heir Male had reserved this power to himself to alter it during his life can signifie nothing unless it Impower him to do it on Death-bed because without any such Reversion he might have altered the Tailzie during his Leigpoustie The Pursuer answered Pactum privatorum non derogat jure communi Therefore this being a special part of our common Law anterior to either Act of Parliament or Practique no privat Provision or Reversion can capacitat any Person to do that which the Law declares void especially being upon a Reason of weakness and infirmity which is presumed in Persons on Death-bed presumptione juris de jure admitting no contray probation for it will not be admitted to prove that the Disponer was in perfect soundnesse of mind and therefore if any Person should reserve a Power to Dispone though he were not compos mentis the Reservation would signifie nothing so here neither is the ordinary word adjected etiam in articulo mortis or on Death-bed and so cannot be extended to that case and can reach only to what is done lawfully legittimo tempore modo and there is far lesse inconvenience that a Cause should be superfluous which is very ordinary then that it should extend to take away common Law neither is the Provision adjected as an expresse condition upon which the Tailzie was made and no otherwise The Lords repelled also this defense in respect of the Reply and so having advised all the Defenses and Disputes in the afternoon albeit the Parties had aggreed before hand and the Heir of Lynes Portion doubled yet the Lords were generally clear in the Decisions abovewritten as relevant in themselves James Cuthbert of Dragakers contra Robert Monro of Foules February 26. 1663. THe said Iames pursues the said Robert Monro as Heir to his Predecessor the Laird of Foules for payment of a Debt due by him and insists against him as behaving himself as Heir by intromission with the Moveable Heirship The Defender alleadged absolvitor because it was not condescended that the Defunct was a Person who could have an Heir as to Heirship Moveable as being Prelat Baron or Burgess and if the Lands of Foules be condescended on It is offered to be proven that he was denuded by Appryzing before his Death to which Appryzing he had Right before he was Apparant Heir being Tutor to another who was Apparant Heir for the time and therefore the Defender has neither behaved himself as Heir by Intrommission with the Moveable Heirship or the Rents of the Defuncts Lands 3dly The Defender died Rebel and his Escheat Gifted and Declared and so nihil habuit in se bonis and could have no Moveable Heirship It is answered for the Pursuer to the first non relevat that the Lands were Appryzed from the Defunct unless the Legal had been expyred yet semel Baro semper Baro. 3ly The Pursuer having taken Right to the Appryzing while he was Tutor ipso facto it accresced to the Pupil and thereby was extinct and cannot defend his Intromissions 4ly It was for a smal Sum and satisfied by Intromission of a year or two so that the continuance of the Apparant Heir in the Possession after he was satisfyed is gestio 5ly The Gift and Declarator if it was done during the Rebels Life it was simulat âetenta possessione and so null The Lords found the Appryzing not to purge the Intromission unless the Legal had been expired in Moveable and his Apparant Heir might behave himself as Heir by Intromission with the Rents of the Apprysed Lands but if the Legal was expired they found it sufficient and that semel Baro semper Baro is only to be
possessed so long as to attain the benefit of a Possessory Judgement which would defend him not only for bygones but in time coming till his Right were Reduced yet before Citation he was bona fide possessor fecit fructus consumptos suos which the Lords found relevant 4ly The Defender alleadged that by the Pursuers Contract he was to be comptable for the superplus of the Mails and Duties of the Lands more then payed his Annualrent and now the Defender coming in place of the Heretor the Pursuer is comptable to him for the superplus The Pursuer answered that albeit he was comptable he might detain those Annualrents and impute them in his Principal Sum. The Lords having considered the Contract found the Pursuer ought to be Re-possessed but that he could not detain the superplus but that he behoved to be comptable yearly to the Defender conform to the Contracte Margaret Mcgil contra Ruthven of Gairn November 22. 1664. MArgaret Mcgil pursues a Reduction of her first Contract of Marriage with Umquhil Patrick Ruthven younger of Gairn upon two Reasons First because it was post nuptias and so donatio inter virum uxorem stante matrimonio revocabilis 2dly Because she was Minor and enorlie leised in so far as she disponed to her Husband and the Heirs of the Marriage which failling to his Heirs 8000 lib. of money and above and the half of some Tenements in Edinburgh worthie 1100 lib. yearly in leiu whereof her Liferent was only of 8. or 10. Chalders of Victual and of her own Tenements but she did not âetain to her self the Liferent of the Money or any Part of the Stock whereby she is leised in that if the Heirs of the Marriage fail the Money and the Lands goes to the Heirs of the Husband and returnes not to hers and that her Provision being worth 20000 lib. she ought at least to have had the double of the Annualrent thereof in joynter The Defender answered to the first Reason that it was no way relevant seing this was expresly a Contract of Marriage although after the Marriage there being no Contract before it is alike as if it had been before the Marriage and to the second Reason is not relevant unless it were enorme lefion for there being no Portion or rule in Tochars and Joynters but that some get a Joynter equivalent to the Aunualrent of their Tochar some half as much more some double and it being ordinar that Tochars are provided to the Heirs of the Marriage which failling to the Mans Heirs here was no enorme lesion or any thing extraordinar although there were an equality The Pursuer being a Burgess Daughter and her Husband a Gentleman of an ancient Family Quality should be compensed with Means 3dly The Pursuer since she was Major had Homologat the Contract by setting her Joynter Lands and lifting the Rent thereof The Lords having before answer heard Probation of the Provision and of the Joynture and having at length considered the whole Cause They first Repelled the Defense of Homologation because the Pursuer was not quarrelling what she got but what she gave and therefore requiring Rectification to have more They also sustained not the first Reason of Reduction and found the Contract not to be a Donation betwixt Man and Wife and they found the second Reason of Reduction Relevant in so far as extended to an enorme lesion beyond the latitude of Contracts of Marriage amongst such Persons and therefore found it not Relevant to reduce the Fee of the Wifs Provision but found it Relevant to add to her a further Conjunct-fee and therefore Rectified the Contract in so far as she had Assigned her Sums of Money without reserving her own Liferent thereof and found that seing the Fee returned not to her she should have the Liferent of her own Portion and her Provision out of her Husbands Estate which is Eight or Ten Chalder of Victual further Malcome Scot contra Laird of Bearfoord November 23. 1664. BEarsoord having borrowed 4000 merk from Malcome Scot in Anno 1652. By his Contract he is oblidged to pay the Annualrent thereof and the Sum at certain Terms which Contract bears That for Malcoms better Security Bairford sets to him certain Aikers of Land for 53. Bolls of Victual yearly at Malcolms option either to pay the Bolls or to pay twenty shilling less then the Candlemess Fiers Bairford alleadged that Malcolm ought to compt for the full Fiars and that the Diminution of twenty shilling was Usurary given Malcolm more then his Annualrents indirectly by that abatement and therefore both by Common Law and specially by the late Act of Parliament betwixt Debitor and Creditor that Addition was void It was answered that there was here no Usurary Paction But it was free to Malcolm Scot to take the Lands by his Tackâ for what Terms he pleased and he might have taken it for half as many Bolls or at four merks the Boll for each Boll which would have been valid 2ly The Case of the Act of Parliament meets not because that is only in Wodsets here there is neither Infeftment nor Wodset but a Personal Obliegement and a Tack 3ly There is a just reason to abate so much of the Boll because the Tennent behoved to be at the Expense of the Selling thereof and at the hazard of these that bought if they failed in payment The Lords Sustained the Tack without Annulling the Abatement and found it not Vsurary Halyburtoun contra Porteous Eodem die HAlyburtoun having Married a Widow in the Potter-raw there was no Contract of Marriage betwixt them but he gave her first an Infeftment in all the Lands he had the time of the Infeftment and thereafter he gave her a second Obliegment providing certain Lands to him and her and the Heirs betwixt them which âailzing to devide betwixt their Heirs Her Heirs pursuing to fulfill this Obliegment Halyburtoun alleadged it was donatio inter virum uxorem and now he Revocked Which the Lords formerly found Relevant unless the Pursuer condescended that this Infeftment was Remuneratory for a proportionable Provision brought by the Wife and after condescendence having considered what the Wife brought and what of it was before the first Infeftment and what interveened betwixt the first and the second Albeit whatever fell unto the Wife was moveable and would have belonged to the Husband jure mariti Yet if it had been of that value to have Served both the first and second Provision They would have Sustained both as Remuneratory in gratitude to the Wife but they found no such thing condescended on or Instructed and therefore they Reduced the second Provision Collin Hay contra Magistrates of Elgin Eodem die COllin Hay pursues the Magistrates of Elgin for the Debt of a Rebel Escaping out of their Prison They Alleadged Absolvitor First Because it was in the time of Richard the Usurper 2ly The Rebel Escaped by breaking through the Roof of the Prison and
Litle contra Earl of Nithsdail Eodem die LItle pursues an Improbation and Reduction against the Earl of Nithsdaile of the Rights of some Lands Whereinâ the Lords sustained the Pursuers Interest on a Compryzing and Charge without Infeftment and though the Appryzing was on Litles own Band simulat and assigned to himself and found such Deeds might make him lyable as behaving as Heir if he Intrometted and were sufficient Titles any other way The Lords also found that Certification ought to be granted against Retours and Charters though in publick Registers but not against Writs Registrate in the Books of Session the date being condescended on by the Defender were sustained against all Writs granted to the Defender and his Authors but such as Seem to represent them are called nor against Writs granted by the Pursuer his Predecessors or Authors but only his Predecessors to whom he doth Succeed jure sanguinis and such Authors as he produces Right from but they would not admit Certification against Appryzing if the Infeftment thereupon were produced Sir John Baird contra The Magistrats of Elgine Ianuary 25. 1665. SIr Iohn Baird pursues the Magistrats of Elgine for the Debt of a Rebel whom they suffered to escape forth of their Prison It was alleadged for the Magistrats absolvitor because they could be oblidged no further but for their ordinar diligence of Custodie but not contra vim majorem and offered to prove that about six a clock at night in the winter time the Rebels Lady going in to Sup with him the keeper opening the Prison Door to let her in six or seven Armed men pressed in with her and that there was sixty more at the Gate The Pursuer answered non relevat because it was the Keepers fault to let in any body at that time of night The Lords found the Defense relevant to be proven by Witnesses above exception which were condescended on Parson of Dysart contra Watson Eodem die ANderson Parson of Dysart having a designation of four Aikers of Iohn Watsons Land which was Bishops Land charges him to removeâ Watson Suspends on this Reason that there are Parsons Lands in the Paroch more ewest to the Kirk and lying about the Parsons Mans and therefore according to the Order of the Act of Parliament anent Designation of Glebs the Parsons Lands must be designed in the first place before the Defenders Lands which are Bishops Lands It is answered for the Charger that the Parsons Lands were Feued out before the said Act of Parliament and are all build with houses incorporat within the Town of Dysart It was answered that the said Act of Parliament bears That the Parsons Lands shall be first Designed although they be Feued out before Which the Lords found relevant and Ordained the Parsons Land to be cognosced what quantitie was wanting thereof to be made out of the Bishops Land William Menzies contra Laird of Drum Eodem die WIlliam Menzies as Executor to Alexander Menzies and umquhil Margart Gordon the other Executor having obtained Decreet against the Laird of Drum for 8000 merk The said Margaret being dead William charges for the whole Margaret having died at the Horn Compearance is made for the Donatar It was alleadged for Drum that he could not be conveened at the instance of this Pursuer without concourse of the other Executor or some to represent her had been called For they might have alleadged that this Charger is satisfied of the half of his Executry The Lords found that seing the Testament was execute by a Sentence the other Executor needed not be called 2ly Drum alleadged that he could not be lyable to this Executor but for the half It was alleadged for the Donatar that he craved preference for the other half It was answered that the Donatar could have no interest because the Sum was Heretable It was answered that albeit it was Heretable yet it became moveable by the Executors taking a Decreet therefore in the same Case as if Requisition had been used In this the Lords did not decide some being of opinion that it was Moveable others contrair because an Executor being but a Successor as a Decreet of Registration or Transferrence would not change the Nature of the first Bond so neither would this Decreet The Heretors of the Fishing of Don contra The Town of Aberdeen and their Feuers Ianuary 26. 1665. THe Heretors having Salmond Fishing in the Water of Don above Aberdeen pursue a Declarator of their Right of Salmond Fishing and that they ought to be Free of the prejudice sustained by the Cruives built at Aberdeen and insist upon these Particulars That the Town of Aberdeen hath no Right to Cruives but is only Infeft cum piscationibus piscarijs and within such a bounds which cannot carry Salmond Fishing being inter regalia much less Cruives It was answered that such a Clause granted to an Incorporation or Community or being in Baronia with Immemorial Possession is sufficient and that there is a later Right granted to the Town with power of Cruives within the said Bounds uti possidebantur It was answered that the Pursuers had their Cruives established before that time The Lords found the Town of Aberdeens Title to Cruives albeit conceived but conform to the first Clause with long Possession was sufficient 2ly The Pursuers insisted against the Transporting of the Cruives from one place to another which they could not do Cruives being a Servitude strictissimi juris as a way being once chosen and fixed cannot be changed especially in respect of the Clauses uti possidebantur It was answered that there being a Bounds expressed and mentioning Cruives to have been there before the meaning can be no other then that these Cruives should be removed if Inundations alter the present stans and uti possidebantur is only understood of the way of building as before The Lords found by the said Clause that the Cruives might be Trasplanted within the Bounds having but one Cruive Dyck and the former Dyck demolished so that the Fishings above be in no worse condition then formerly 3ly They insisted for the wydnesse of the Heeks whereanent it was alleadged that by an Act of Parliament King Iames the fourth Hecks were appointed to be five Inches wyde which is confirmed by an Act 1661. It was answered that the Act King Iames the 4th did relate to a former Act of King Davids which was not to be found but there were two Acts by King Iames the 3. Relating to the old Act by King Alexander which was found to bear three Inch. So that the Act K. Iames the 4th though posterior being but Relative and the Act Related not known The Lords found it was a mistake in the writing of the Act and that in the stead of King David it should have expressed King Alexander and so born only three Inches seing otherwayes five Inch would let the greatest part of Salmond passe 4ly They Insisted for the Saturndays Slop and craved that
on Saturnday the whole Cruives might stand open So that no Fish might be taken thereby according to the old Statute of King Alexander from the Even Sun on Saturnday till the Sun rising on Munday The Lords found that the Saturndays slop ought to be of the whole Cruives and that from Saturnday at six a clock till Munday at Sunrising 5ly They Insisted for the Hight of the Cruives and alleadged that the same ought to be no higher then the water in its ordinar Course neither the time of the Flood nor of Drought otherwayes they might build the same as high as they pleased and that it ought not to be builded perpendicular which will hinder the Salmonds up-coming but slopping from the Ground to the top The Lords considering that there was no particular Law as to the hight of Cruives and that âhir Parties had suffered the other to enjoy the Cruives above 40. Years that therefore the same should be uti possidebantur no higher then the old Cruives were 6ly They Insisted for the Liberty of the Midlestream beside and attour Saturndays Slop which is specially contained in the Acts of Parliament of King Alexander and King Iames the third and fourth and is renewed in the late Act of Parliament of King Charles the second The least quantity of which bears That five foot of the middle Stream must be constantly free It was answered 1. That the old Acts anent the midle Stream were wholly in desuetude and were in effect derogate by the Act of King Iames the sixt anent Cruives which ordains the Saturndays Slop to be keeped but mentions not the midle Stream And as for the late Act of Parliament it was Impetrat by these same Parties and never past in Articles or noticed by the Parliament but as an ordinar Confirmation It was answered that there was no prescription of publick Rights against standing Laws and albeit the desuetude of such Laws could be effectual yet the late Law Revives and Confirms them all per expressum which is not a particular Confirmation bearing mention of any particular Partie or particular Right but as a general Confirmation of general Laws anent all the Cruives in Scotland The Lords considering that the midle Stream has been long in desuetude and that this late Ratification was past without notice therefore before answer They Ordained the Parties to adduce Witnesses whether the midestream was accustomed in any Cruives in Scotland and whether the same would be beneficial or hurtful to the Salmond Fishing of the Kingdom in general and whether it were destructive to the Cruives in Common and likewise they gave Commission to examine the Witnesses hinc inde whether their new Cruives were builded upon challes or they otherways builded then the former Cruives to the prejudice of the Fishing above in the water George Hutcheson contra Dickson of Lonhead Eodem die GEorge Hutcheson pursues Dickson for a Sum of moneyâ and for the Annualrent since the denunciation of the Horning Whereupon the Defender answered that the Horning was only at the Mercat Cross of Edinburgh where the Defender dwelled not and so was null and could not give Annualrent It was answered that albeit such Hornings be not sufficient for an Escheat yet they are sufficient for Caption and so are not null and therefore Annualrents having so much ground in equity and by the civil Law being due ex mora such denunciations should be sufficient for Annualrent The Lords found such Hornings null and would not allow Annualrent Logan contra Galbraith Eodem die LOgan charges Galbraith to remove from a House who Suspends and alleadges that she is Served and Kenned to a Terce of the House which Terce she brukes pro indiviso with the two thirds The Charger answered the Reason ought to be repelled because albeit the Defense pro indiviso be relevant against such who can obtain division It being their own fault that they do not first divide or they pursue Removing but where it is a House being unum tenementum indivisibile the Heir or Successor of the Husband who has two thirds and continues in his Possession as well as the Relict in her third ought to be preferred in the Possession quia majus trahit minus The Lords found the answers relevant to elide the Reason and decerned the Relict to remove with this quality that if the Feear did not dwell in the House himself the Relict should be preferred giving as much Mail as any other Tennant and giving Caution for the two part Lairds of Berfoord and Binstoun contra Lord Kingstoun Ianuary 21. 1665. BErfoord and Binstoun pursues the Lord Kingstoun for Spuilzie of certain Corns he alleadged absolvitor because he Legally drew the same as their Teynd by vertue of his Tack from the present Minister and Inhibition thereon It was answered First That was not sufficient summarly to draw the Defenders Teynds unless there had been a Sentence on the Inhition which is but as a warning and so must not infer Removing brevi manu ad vitandum tumultum 2ly If he had Legally pursued them for a Spuilzie they would have alleadged and now alleadge that they have Tacks standing from the Minister for the time who though deposed yet lives and all incumbents Tacks serve during their natural life and no Tack from the next incumbent Prejudges during the life of the former conform to an expresse Act of Parliament The Defender duplyed that albeit an Act of Parliament required removing not to be summarly in Lands it did not so in Teynds 2ly The Pursuers Tacks are null without consent of the Patron The Pursuer triplyed that they are standing cled with seven years possession and their Tacks are subscribed by the Patron Quadruplyed he was not then Patron but was standing Fore-faulted unrestored Quadruplyed it is sufficient coloratus Titulus cum possessione till the Reduction And the Lord Bothwells Son Patron was after restored whereby it revived The Lords repelled the Defense in respect of the Pursuers Tacks and found the Defender might not brevi manu intromet there being any pretence of Title but they desired the Pursuer to restrict to wrongous intromission and without Oath in litem Sir John Scot and Walter Scot contra Sir John Fletcher Eodem die WAlter Scot as being Assigney by Sir Iohn Scot of Scotstarvet to an Atlas Major of the late Edition pursues Sir Iohn Fletcher for delivering thereof as belonging to the Pursuer and now in his hand The Defender answered non Relevat unlesse it were condescended quâ Titulo for if it came in the Defenders hands by emption or Gift it is his own and in mobilibus possessio presumit Titulum seing in these Writ nor Witnesses uses not to be interposed and none can seek recovery of such unless he condescend quo modo desijt possedere else all commerce would be destroyed and who ever could prove that once any thing was his might recover it per mille manus unless they instruct their
Cautioner who were free to have pursued for the Tochar and did not and after 40. years she cannot be put to instruct that the Tochar was payed albeit she had been Debitor therefore her self much more when another is Debitor The Lords found both these replyes relevant Mr. John Colvil contra The Lord Balmirino Iuly 6. 1665. MR. Iohn Colvil as Executor confirmed to Umquhil Mr. Iohn Colvil Minister at Kirknewtoun pursues the Lord Balmirino for the Stipend the year 1663. and for the profit of the Gleib The Defender alleadged absolvitor because payment is made bona fide to the intrant before intenting of this Cause It was answered it could not be payed bona fide because the Minister died after Ianuary 1663. VVhich being so notour to my Lord Balmirino to whom the most of the Paroch belongs and he being so near it he ought to have made payment to no other of that year which belonged to the Defunct Minister as his Ann extending to the whole years quia annus inchoatus habeâur pro completo as to the Ann so that if the Minister lived till the first of Ianuary he has that whole year The Defender answered that an Ann is only due to the VVife and Bairns of the Defunct Minister and this Minister had none 2ly That the point is so dubious in Law he knew not that it would be his unless he had lived till Whitsunday 3ly The benefit of the Gleib must be the intrants and falls not under the Ann as a part of the Stipend no more then the Manss The Lords repelled the Defense as to the Stipend and found it belonged to the Executor as nearest of kin and that the Defunct surviving the first of January gave him that whole year but found that the Gleib did not fall under the Ann nor did belong to the Defunct but only the Crop thereof if it were sowen by himself before he dyed Earl of Argyl contra Mcdougalls of Dumolich and Ziner Iuly 14. 1665. THe Earl of Argyl having raised a double poynding in name of the Tennents of certain Lands calling himself on the one part and Mcdougals on the other as both claming right to the Mails and Duties Mcdougals produce a Decreet of Parliament whereby they having pursued the late Marquess of Argyl alleadging that he had obtained the Right and Possession of these by Force and Oppression during the troubles whereupon his Rights were reduced and they restored to their Possession The Earl of Argyl produced his Seasine upon the Kings Gift with two Dispositions of these Lands granted to his Father one in Anno 1632. and another in Anno 1639. And thereupon craved to be preferred Mcdougals produced a disclamation of the Process in name of the Tennents and alleadged no Process because the Tennents who were pursuers past from the pursute It was answered that their names was but used that the Parties might discusse their Rights and so they could not disclame it being ordinar to use Tennents names in double poyndings It was answered that there was no Reason that Tennants should be forced to make use of their names to intervert their Masters Possession The Lords found that the Tennants could not disclame especially the possession being but late by Decreet of Parliament and was contraverse It was further alleadged for Mcdougals that there was nothing particularly lybelled as Rents due by the Tennants and therefore there could be no sentence The Lords repelled the alleadgeance and found the Sentence might be in general to be answered of the Mails and Duties as is ordinar in Decreets conform It was further alleadged for Mcdougals that seing this double poynding was in effect now used as a Declarator of Right no Process thereupon because in all Declarators Law allows the Defenders 21 days upon the first Summons and six on the next that they may prepare and produce their Rights and here there is but one Summons on 6 days 2ly No Process because Mcdougals being founded upon a Decreet of Parliament my Lord Argyl produces no Title but only a Seasine not expressing these Lands 3ly Decreets especially of Parliament cannot be taken away but by Reduction and not thus summarly It was answered that my Lord Argyl insisted here for taking away the pretended Decreet in Parliament and restoring the King and Donatar to the possession of the Lands so that in effect it is not so much a Declarator of a Right as a possessory Judgement And as for the Title it is sufficient to produce a Siasine seing in the Decreet of Parliament My Lord Argyls Right and possession is quarrelled as wrong and therefore was acknowledged to have been and seing Mcdougals produces no other Right and the King's Advocat concurres and if need beis my Lord Argyl offers to prove the Lands in question are parts and pertinents of the Lordship of Lorn exprest in his Seasine and albeit this be pretended to be a Decreet of Parliament yet by Sentence of Parliament since it is remitted to the Lords and is in it self visibly null as having been intented against my Lord Argyl and pronounced after his death and Forefaulture without calling the Kings Officers The Lords repelled these Defenses in respect of the replyes James Mathison contra Harie Gib Eodem die JAmes Mathison having obtained a Decreet before the Commissars of Edinburgh against Gib he Suspends and alleadges it was not a cause consistorial being a bargain of Victual and that it was not probable any other ways but by his Oath now after 12. or 13. years In respect of the Act of Parliament anent house Mails and others which comprehens this case The Lords repelled the alleadgeance and found that bargain of Victual not comprehended under that Act of Parliâment James Borthwick contra Janet Skeen Iuly 15. 1665. JAmes Borthwick being Infeft in the Lands of Oversneip pursues Reduction and Removing against Ianet Skeen the Liferentrix It was alleadged that the Feer being minor non tenetur placitare super haereditate paterna And for the Liferenter that the minor was oblidged to warrand her Liferent-right and her Possession was the minors Possession so that if her Right were reduced and she removed the priviledge of the minor were altogether overthrown It was answered That the priviledge was personal and stricti juris and was to be extended to Majors and as for the warrandice it was never sustained as a ground to exclude a Reduction because warrandice would be inferred against a Minor which is but a personal obligement and not haereditas The Lords repelled the alleadgance for the Liferenter Who alleadged further that her Right being Reduced the Fee was absolute in the person of the Minor who would not suffer the Liferentrix to be removed but she did possesse by the Minors tollerance It was answered that the Pursuers Reduction behoved to accresce to him and his Right and not to the Minors Right that he behoved to enter to the Liferenters possession which would not prejudge the Minor for if
because she is then in potestate viri sub ejus tutelà So that she is truely Wife after the Contract of Marriage becoming publick by Proclamation and it occurring as a doubt amongst the Lords whether the Reduction ought to be sustained at the instance of the Husband only in so far as concerned his interest jure mariti so that the Right might be valid against the Ladie if she survived The Lords sustained the Reason simply at the instance of both and found it null as to both as being done without her Husbands consent Sir Laurence Oliphant contra Sir James Drummond Ianuary 6. 1666. THE Lord Rollâ his Liferent Escheat being Gifted in Anno 1658. to Walter Stewart He Assigned the Gift and his own Debt the Ground hereof and the General Declarator obtained thereupon to Sir Iames Drumââmond in Anno 1665. A second Donatar now insists for special Declarator wherein compearance is made for Sir Iames Drummond who craved preference upon his first Gift and on his General Declarator It was answered for the Second Donatar that the first Gift was simulat and null by the Act of Parliament 1592. In so far as the Donatar suffered the Rebel to continue in Possession untill this day and never attained Possession of any part of the Lands nor did any furder diligence but only the General Declarator in Anno 1658. So that the Rebel having now possest by the space of 6 or 7. Years The presumption contained in the Act of Parliament that upon the said Possession the Gift is simulat and null takes place It was answered that there is no definit time in the Act of Parliament by which the Rebels Possession shall presume simulation and in this caâe there was but few Anni utilesâ in so far as the Gift being in Anno 1658. Declarator was obtained that same year and in Anno 1659. Judicatures ceased and began not again till 1661. The Lords found that the Donatar suffering the Rebell to possesse 4 or 5. Years was sufficient to infer the presumption of simulation by the said Act of Parliament and therefore preferred the second Donatar Inter Eosdem Ianuary â AT pronouncing of the former Interlocutor the first Donatar furder alleadged that the Presumption of Simulation by suffering the Rebel to possesse could not take place in this case First because the Donatar himself was a lawful Creditor of the Rebells whereupon there is a stronger Presumption that the Gift was to his behoove for his own satisfaction And the Act of Parliament can be only meant of Donatars who have no Interest but their Gift and are not Creditors Secondly The Lands were Apprized and the Donatar knew he would be excluded by the Appryzers The Lords repelled the first alleadgeance and found the presumptio juris in the Act of Parliament was stronger then the contrair presumption that the Donatar was Creditor because it might be his purpose to apply the Gift to the Rebells behove and not to take that way having other wayes of payment competent and also repelled the second alleadgeance unlesse it were alleadged that the Apprizer had been in possession so that there had not been 3 or 4. Years in which the Rebel had possest and that if the Appryzing had attained Possession at that time it would have excluded the Donatar but seing it was offered to be proven that the Rebel possest for 3 or 4. Years which was contrair to the alleadgeance of the Apprizers possession of the hail They adhered to their former Interlocutor Elizabeth Broun contra John Scot. Eodem die THere being an Infeftment feu granted of the Lands of Inglistoun as Principal and of the Lands of Fingland in warrandice thereof long agoe and Infeftment taken of both Principal and Warrandice Lands in on Seasine Registrat in the Registers Seasines Since the Year 1617. Thereafter the Warrandice Lands were disponed to the Earl of Traquair and he being publickly Infeft gave a subaltern Infeftment to his Vassal who assigned Iohn Scot to the Mails and Duties who having Arrested insisted to make forthcoming And likewise Elizabeth Broun having after the eviction of the Principal Lands arrested the Rents of the Warrandice Lands insists to make the same furthcoming to her It was alleadged that the Original Infeftment whereupon the said Elizabeth Brouns right is founded is a base Infeftment and as to the Warrandice Lands never cled with Possession and the Earl of Traquairs Right whereon Iohn Scots Right is founded is a publick Infeftment holden of the King which is alwayes preferred to a base Infeftment without consideration whether the publick Infeftment has attained Possession or no or how long but much more in this case where the publick Infeftment has attained Possession not only by year and day but many years And therefore is directly in the Case of the Act of Parliament 1540. cap. 105. Preferring publick Infeftments to prior base Infeftments not cled with Possession It was answered that base Infeftments are of themselves valid and before the said Act of Parliament the first Infeftment made always the best Right whether it was holden of the Disponer or of his Superiour but that Act of Parliament is correctory of the Common-Law and Feudal Custom which by the Act it self appears then to have been constant and is only altered by the Statute upon the presumption of Fraud which is clear both by the Title against double Fraudful alienations and by the Narrative that diverse persons after they have given privat State and Seasine to their Bairns or Friends do thereafter give for Causes onerous Infeftment to other persons and therefore such onerous posterior Infeftments if they attain Possession year and day are preferred to the said privat Infeftments but in this Case there is no Presumption of Simulation 2dly By several Decisions alleadged and produced it is clear that the Lords did prefer base Infeftment of Annualrent to posterior publick Infeftments of Propertie which interveened before the next Term so that the Infeftment of Annualrent could not attain Possession but if base Infeftments without Possession were unvalid Rights The Lords could not have found so 3dly The Lords have allowed Indirect and Interpretative Possession to be sufficient not only in the Case when Liferents are reserved that thereby the Liferenters Possession is the Feears though he never possest himself but even when Liferents are not reserved but that the base Infeftment is thereby excluded from Possession so base Infeftments granted to wyfes are preferred to posterior publick Infeftments though the Wyfes do not nor cannot possesse during the Husbands Life yet the Husbands possession is counted the Wifes possession and if a Person Infeft by a base Infeftment should pursue for Mails or Duties or Removing and were excluded by a prior Liferent constitute by the Pursuers Authorâ though not reserved in his Right that very Action would be sufficient to validat the base Infeftment without Possession 4thly Whatever might have been alleadged before the Act of Parliament 1617. For
Disposition ex capute inhibitionis against the Laird of Fairney of all Dispositions made by John Glasfoord to him after her Inhibition he produced a Disposition Holograph wanting Witnesses of a Date anterior It was alleadged that the Holograph writ could not prove its own Date contra tertium The Lords before answer ordained Fairney to adduce Witness and adminacles for astructing the Date he adduced foââ the Town Clerk who deponed he dyted the Disposition and a Town Officer who saw it subscribed of the Date it bears and a third who deponed he saw it subscribed on a Mercat day at Coupar which as he remembred was in March or Apryl 1652. Whereas the Date bears the first of August 1652. But that Glasfoord when he wrot it layed it down upon the Table beside himself and saw it not delivered and it being alleadged that the first of August 1652. fell upon a Sunday The Lords considering that Infeftment was not taken upon the Disposition for three years and that there was no Witnesses deponed upon the delivery found the Witnesses adduced not to astruct the Date of the Disposition and therefore reduced the same Clappertoun contra Laird Tarsonce Eodem die CLappertoun raises a Declarator against Tarsonce for declaring an Appryzing at his Instance against the Pursuer to have been satisfied within the legal by payment of the sums by the Debitor or by Intromission with the Mails and Duties either within the seven years of the first legal or within the three years thereafter during which by the late Act of Parliament Appryzings not expired in Anno 1652. were declared Redeemable or by Sums received from such as bought from the Appryzer a part of the appryzed Lands It was alleadged absolvitor from that member of satisfaction by the intromission during these three last years because the Act of Parliament does not expresly prorogat the Reversion but declares the Lands Redeemable within three years but does express nothing to whom the Mails and Duties shall belong which cannot be imputed against the Appryzer to satisfie the Appryzing because he enjoyed them as his own the Apprizing by the Law then standing being expyred bona fide possessor facit fructus consumptos suos and therefore a subsequent Law cannot be drawn back to make him compt for that which he might have consumed the more lavishly thinking it his own It was answered that Appryzings were odious being the taking away the whole Right of Lands for a sum without proportion to the true value and therefore all Acts retrenching them ought to be favourably interpret especially where the Appryzer gets all his own and therefore the Act declaring them Redeemable must be understood in the same case as they were before and that was either by payment or intromission The Lords Repelled the Defense and sustained the Declarator both as to payment and intromission and as to the sum the Appryzer got for a part of the Land sold by him Irredeemably after the seven years legal was expyred And seing the Acquirer of that Right was called they found it also Redeemable from him upon payment of the pryce payed for it cum omni causa and he to be comptable for the Rents unless the Pursuer would ratifie his Right as an irredeemable Right in which case the price should be accounted as a part of the sums appryzed for Lord Rentoun contra Feuars of Coldinghame Eodem die THe Lord Rentoun insisting in the Declarator of his Right of the Office of Forrestry and of a Threave of Corn with the Fodder whereof mention is made Ianuary 17. The Defenders proponed a second Defense viz. That the Pursuer shewed no sufficient progress from David Ellen but only an Infeftment granted by Ianet Ellen Davids Daughter and so the Pursuers Goodsir upon Ianets own Resignation and albeit there was a Precept of clare constat produced by the Abbot in favours of Ianet yet no Seasine followed thereupon so that Davids Infeftment was not established in the Person of Ianet and consequently could not belong to this Pursuer and the Defenders having gotten their Fews immediatly after Davids Right free of this Burden the Right could not be declared till it were established in the Pursuers Person and if he should now infeft himself the Interruption on the Act of Prescription upon the Summons lybelling upon Davids Right and the progress produced from David would fall It was answered that the Abbot having granted the Infeftment to Ianet upon her own Resignation yet bearing to be expresly to her as heir to David It was equivalent to a Precept of clare constat which does not necessarly require the ordinar form but a Charter infeâting such a Person as heir to such another who was before infeft would be as valide so that in this infeftment of Ianets all being materially included to establish Davids Right in her Person she being acknowledged heir to David albeit it be upon her own Resignation utile per inutile non vitiatur The Defenders further alleadged absolvitor because by several Acts of Parliament infeftments of Kirk-lands before the Reformation are required to be Confirmed by the Pope or the King thereafter Ita est this is Confirmed by neither before the Feuers Right And by another Act of Parliament it is declared that the first Confirmation with the last Feu shall be preferred Ita est the Defenders has the first Confirmation It was answered that no Law nor Act of Parliament required Confirmation of an Office neither was any Confirmation absolutely necessar before that Act of Parliament but the Kirk-men might always have Feued without diminution of the Rental of the Lands as they were the time of the feu but that Act was made in regard that at the time of Reformation the Kirk-men being out of hopes of preserving of Monasteries and Kirk-lands did Feu them to their nearest Friends and therefore the foresaid Act as being correctory of the common Law ought not to be extended to any thing but what is exprest in the Act which is only Feues of Kirk-lands and so would neither extend to an Office as a Baillirie Forrestrie c. nor yet to a Pension or Annualrent neither would it extend to Infeftments by Kirk-men Ward such as most of the Infeftments of this Abbacy and many others are And seing Confirmation was not requisit but the Feu it self was sufficient alone the last Act preferring the first Confirmation takes no place which can only be understood where Confirmations are necessar It was answered for the Defenders that albeit an Office requires no Confirmation where there is nothing given but the Office and Casualities thereof Yet where there is a burden upon Lands given therewith such as this Threave of Oats out of every Husband-land being far above the proportion of a suitable Fee for the Office there being above 111. Husband-lands in the Abbacie and some Forrester-lands following the Office besides other Casualities Confirmation is necessar or else the Abbots might have eluded the
Ratification should have the force of a publick Law and not be derogat by the Act salvo jure It was answered for the Defender that in Prescriptione longissimi temporis non requiritur tempus utile sed continuum In consideration whereof the time of the said Presciption is made so long and therefore captivity absence reipublicae causa want of Jurisdiction or the like are not respected 2dly Thirlstone valebat agere because he might have Reduced the Queens Infeftment of Fee or declared his own Right of Fee to be effectual after her death And as to the late Act of Parliament albeit it does exclude the Act salvo jure yet that is parte inaudita and upon the impetration of a Party suo periculo but the Parliament have never assumed power to take away the privat Rights of Subjects except upon another or better Right otherwayes no man in Scotland can call any thing his own but a Confirmation in Parliament with such a clause surreptitiously obtained shall take away the Unquestionable Right of any other It was answered for the Pursuer that the Parliament had not incroached upon the just Right of any other but had only restored the Pursuer to his Grand Fathers Right and seing there is no question but that Right was prior and better than the Queens and the Defenders and was in no hazard but as to the point of Prescription that being a rigorous Statute the Parliament might well excuse the Pursuer for not pursuing the King and Queen but rather patiently to abide their pleasure till they were denuded in favours of privat Parties It was answered for the Defender that all our privat Rights especially of Property are founded upon positive Law and there is none stronger then the Right of Prescription and therefore if the Parliament can take that away as to one Person and not generally they may annul the Right of any privat Person whatsomever The Lords were unwilling to decide in the whole points of the Debate but did in the first place consider the Right of the Parties without the Act of Parliament in favours of the Queen or the late Act in favours of the Earl and in the point of Right they repelled the Defense of Prescription in respect of the Duply of Swintouns interruption which they found to accresce to the Pursuer cujus jure utebatur and found that before the Queens death the Prescription could not run in respect of the Queens Infeftment of Liâerent consented to by Thirlstoun which would exclude him from any Action for attaining Possession and they found that he was not oblidged to use Declarator or Reduction which might be competent in the Cases of Distress or the Rights of Wifes or any other Right which yet do alwayes exclude Prescription till Action may be founded thereupon that may attain Possession Thomas Millar contra Howison Iune 5. 1666. THomas Millar having pursued the Tennents of one Bailie his Debitor for making forthcoming their Duties arrested in their hands Compears Howison and produces a Disposition and Infeftments from Baillie of the Tenements prior to the Arrestment and craves to be preferred It was answered for Millar that Howisons Disposition was null as being in fraudem Creditorum against the Act of Parliament being granted after the contracting of Millars Debt and albeit the narrative of the Disposition bears causes onerous yet he offered to prove by Howisons Oath that it was not for causes onerous at least equivalent to the worth of the Land which was found relevant and Howison having deponed that his Disposition was granted for a Sum of 300. merks addebted to himself and the Sum of 1600. merks adebted to Iohn Burd for which he was Cautioner for Baillie the Disponer At the advysing of the Cause It was alleadged that the Disposition nor the Disponers Oath could not sufficiently instruct the cause onerous seing the Oath did not bear that there was a price made but only that there was no Reversion nor promise of Redemption granted â yet the Disposition was truely in Trust which ofttimes is tacit as being the meaning of the Parties and is not expresse by Reversion or Back-bond so that if Baillie or this Arrester would pay these Sums Howison could have no further Interest It was answered that the points referred to Howisons Oath were denyed and that he was not oblidged to keep the Bonds but might destroy them as being satisfied The Lords found that as to Howisons own Bond he needed not instruct the same but as to Burds Bond they found that he ought to instruct it by some adminicles further then his own Oath that the Debt was and was payed by him in respect his Oath bore not a price made and that he was Vncle to Baillie the Disponer Mr. Alexander Nisbit contra Eodem die MR. Alexander Nisbit as Assigney to a Sum pursues the Debitor for payment compears the Arrester who had arrested it in the Debitors hand for a Debt due to him by the Cedent and whereupon he had obtained Decreet before the Sheriff of Berwick It was alleadged for the Assigney that the Decreet was null because the principal Debitor was not called in the Decreet for making forthcoming or at least at that time he lived not within that Jurisdiction It was answered that albeit the Arrester had no more but his naked Arrestment he might compear for his Interest and crave preference to the Assigney whose Intimation was posterior It was answered he could not be pursued hoc ordineâ because he whose Money was arrested was not yet called viz. The Assigneys Cedent who is the Arresters principal Debitor who if he were called might alleadge that the Debt whereupon the Arrestment proceeded was satisfied which was not competent to the Assigney being jus tertij to him The Lords found the Arrester might compear in this Process without calling his Debitor but they found that the Assigney might either alleadge payment in name of his Cedent or if he craved a time to intimate to his Cedent they would superceed to extract till that time that the Cedent might defend himself Earl of Cassils contra Sir Andrew Agnew Iune 6. 1666. THe Earl of Cassils as Superior of some Lands holden of him by Iohn Gardener obtained Declarator of his Liferent Escheat and that a Gift of the said Liferent granted by the said Earl to the said Iohn was null in so far as it contained a Clause irritant that if Iohn Gardener should give any Right of the Lands to any of the name of Agnew the Gift should be null ipso facto whereupon in anno 1650. The Earl obtained Declarator of the Clause irritant by Iohn Gardeners giving Right to Sir Andrew Agnew and now insists for the Mails and Duties since that Declarator It was alleadged that the said Earl had accepted the Feu Dutie of several Years since the said Declarator and thereby had tacitly past from the Declarator and could not seek both the Feu-dutie and also the whole
Mails and Duties by the Escheat It was answered for the Earl that having both Rights in his Person he might poynd the Ground for the Feu-dutie and his Donatar might pursue for the Maills and Duties 2dly His acceptance of the Feu-dutie albeit it could not consist with the Maills and Duties yet it would only extend to these Years that the Feu-dutie was accepted and to no others The Lords found the acceptance of the Feu dutie Relevant only for these Years for which it was received but it occurred to some of the Lords that if it were alleadged there were three consecutive Discharges of the Feu-dutie that these as they would presum all bygone Feu-dutie payed so they would extend to the Maills and Duties for all years preceeding the Discharges Therefore the Defender was ordained to condescend if so many Discharges were and that this point might be debated William Crawfoord contra Andrew Duncan June 7. 1666. WIlliam Crawfoord as Assigney to a Bond of 200. merks granted by Andrew Duncan pursues for payment It was alleadged absolvitor because the Bond was null having no Date at all data est de substantialibus It was answered that the Pursuer offered him to prove by the Defenders Oath that it was his true Subscription which was sufficient and the Date is only substantial when Improbation is alleadged or any Right that might take away the Writ if it were of such a Date as a prior Assignation or general Discharge The Lords found the Reply Relevant with this provision that the Defender might adject what quality he thought fit as these mentioned or that it was done in Minority or not delivered c. but they found him not oblidged to depone simpliciter upon the verity of the subscription and to prove such qualities as they had done before in a Holograph Writ wanting Date the last Session in the Process betwixt the Earl of Kinghorn and Sir James Murray Elizabeth Anderson contra George Cunninghame Iune 9. 1666. THis Cause betwixt Elizabeth Anderson and George Cunninghame anent a Legacie lest by the said George his Wife to the said Elizabeth Anderson being debated the 7. of February last The Lords then found that George by confirming his Wifes Testament in giving up his Debts to exhaust the free Gear and abate the Legacie did not hinder himself to adduce further Debt for a further abatement but now it being further alleadged that immediately before the Confirmation the Bond he would now add was registrat and he charged therewith he could not be ignorant thereof at the time of the Confirmation The Lords altered their Interlocutor and found that having scienter omitted that Debâ he could not bring it in to the Legatars prejudice This was stopt by Bill the next day Colin Hay contra Magistrates of Elgin Iune 12. 1666. COlin Hay pursues the Magistrats of Elgin for the Debt of a Rebel escaping out of the Prison of Elgin whom he had arrested there It was alleadged for the Defenders absolvitor because the Rebel was not incarcerat by the Pursuer upon his Caption but being incarcerat by another was only arrested in the Tolbooth by the Pursuer and all that is produced to instruct the same is only the Execution of a Messenger who arrested the Rebel It was answered there was no difference whether the Rebel had been incarcerat upon the Pursuers Caption or had been arrested for in both Cases the Magistrats are lyable and the keeper of the Tolbooth ought to have a Book for certifying the Magistrats of all incarcerations and Arrests in Prison and if they be neglective therein it is on their perills and yet here the Messenger not only Arrested but the Executions bore that he intimat the same to the Provost and Baillies Which the Lords found sufficient and Repelled the Defense and found no difference betwixt Incarceration and Arresting in Prison Sinclar of Bryme Supplicant Eodem die SInclar of Bryme gave in a Bill bearing that he had obtained Suspension of all Execution and specially of Appryzing which he presented at the time of the Appryzing and yet the Messenger and Writer went on and Appryzed and therefore craved that the Appryzing might be stopt at the Registers and Seals The Lords refused to grant the desire of the Bill without there had been a Summons against the Appryzer past the Signet but would not upon a Bill cite Parties out of the Town having no dependence on the House nor annull or hinder any pretended Right they had without citing of them but resolved to take in consideration the contempt of the Messenger and Writer at the discussing of the Cause Sir Hendrie Hoom contra Tennents of Kello and Sir Alexander Hoom. Iune 13. 1666. JOhn Hoom Younger of Kello being Forefaulted in the Parliament 1661. For being with the English Armie against the Kings Armie at Worchester 1651. Sir Alexander Hoom obtained Gift of the Forefaultry and thereupon came in possession Sir Hendrie Hoom having Appryzed the Lands of Kello from the said Iohn Hoom and his Father Alexander Hoom upon their Bond and having charged the Superiout in 1653. to Infeft him obtained Decreet of Maills and Duties against the Tennents which being Suspended upon double Poynding and Sir Hendrie and Sir Alexander competing It was answered for Sir Alexander the Donatar that he had possest three years and offered him to prove that the Rebel had possest five years before therefore craved the benefit of a possessorie judgement 2dly That he was preferable in poynt of Right in so far as he offered him to prove that the Rebel was five years in possession before the Forefaulture which gives the King and his Donatar compleat Right by the Act of Parliament It was answered for the Creditor that he ought to be preferred because there being no retour upon the Act of Parliament finding by the Inquest that the Rebel was five years in possession as Heretable Possessor he can neither have the benefit of a possessory Judgement nor stop the Creditors Diligence who found themselves upon the Appryzing against the Father who stood publickly Infeft and there is no sufficient Right in the Rebels Person alleadged nor produced It was answered that the five years possession might be proven by Witnesses by way of Exception 2dly It was offered to be proven by an Inquest conform to the Act of Parliament The Lords found no benefit of a Possessory Iudgement competent neither would they sustain the five years possession by way of Defense but decerned superceeding Extract while the 15. of July within which time if the Donatar obtained the retour of an Inquest he should be heard thereupon The Donatar further alleadged seperatim that the Rebel was Infeft by the Father which was sufficient to prefer him without an Inquest It was answered non relevat unless he had either been publickly Infeft or by base Infeftment cled with possession before the Superior was charged upon the Creditors Appryzing which being equivalent to a publick Infeftment
charges the Parochiners of Craufoord Compearance is made for the Bishop of Edinburgh alleadging that this was a Patrimonial Kirk of the Bishoprick of Edinburgh and so was not comprehended in the late Act of Parliament anent vaccand Stipends The Lords repelled the Defense and preferred the Collector of the Vaccand Stipends for they found the Act was general without any such exception Mr. John Thomson contra Mckitrick Eodem die MR. John Thomson pursues Mâkitrick for reduceing of an Infeftment of some Tenements in Dumfries upon an appryzing on these Reasons First That the appryzing was null proceeding upon a Bond without Requisition or Charge without which the Heretable Bond could not become moveable 2dly Infeftment being within Burgh was not given by the Baillies and Town Clerk 3dly That it was neither Registrate in the Town Books nor in the Register of Seasings of the Shire It was answered to the First that the Bond bare no Clause of Requisition but bore on the contrare to be payable without Requisition and so as Moveables the Defender might have poynded therefore without Charge so might Lands be Appryzed to the Second there being no Magistrats nor Town Clerk in Office at the time of this Seasine and the Defender being an Appryzer necessitat to do Diligence took Seasine by the Sheriff Clerk which was necessar and sufficient To the Third the Act of Parliament requires no Registration of Seasines within Burgh and albeit they be ordinarly to be found in the Town Books yet if that should be neglected they would not be null The Lords repelled the first Reason and found no necessity of a Charge and they had formerly repelled the second Reason in respect of the Answer made thereto and did also repell the third Reason Earl of Southesk contra Marquess of Huntlie Iuly 23. 1666. THE Earl of Southesk and the late Marquess of Argyl being Cautioners for the late Marquess of Huntly for the Tochers of the Daughters of Huntly they got an Infeftment of the Lands of Badzenoch for their relief bearing that according as they should be distrest they should have access to the Rents of the Lands in so far as might pay the Annualrent of the Sum which they should be distrest for whereupon they were Infeft in Anno 1643. And thereafter Southesk was distrest in Anno 1653. Whereupon in Anno 1655. He pursued an Action of Maills and Duties upon the said Infeftment of relieff against the said Lord Argyl who was in Possession and my Lord Argyl having long before granted an Bond of relieff to Southesk he used Horning and Caption thereupon in Anno 1655. and in Anno 1658. he used Inhibition upon the said Bond against Argyl who in Anno 1658 Entered in a new Contract with Southesk whereby in Corroberation of the first Infeftment he granted him a Wodset of the Lands of Enzie with a Back-tack by vertue whereof Southesk uplifted several years of the Back-tack Dutie Southesk now pursues the Marquess of Huntly and his Tenents for declaring of his Right and payment of the Maills and Duties it was alleadged for the Defenders First absolvitor because the Marquess of Argyl hath been Retoured to have possest the Lands of Badzenoch peaceably by the space of 5 years before his Forefaulture which was in Anno 1661. Conform to the Act of Parliament 1584. By vertue thereof this Marquess of Huntly as the King's Donatar to the Forefaulture in so far as concerns the Estate of Huntly has undoubted Right and needs not dispute what Right Southesk had before the five years It was answered for the Pursuer First That the Act of Parliament 1584 ought not now to take effect because by the late Act of Parliament 1617. Seasine and Reversions are appointed to be Registrat otherwise they are null and therefore the ground of the Act of Parliament 1584. viz. The abstracting of Evidents Ceasing the said Act it self must also cease 2dly The said Act can only take place where it is not constant what Right the Forefault Person had but that he was repute to be the ancient Heretor of the Lands but where the Forefault Persons Right is known to have been Beations Compryzing or this Conjunct Right granted to himâ and the Pursuer for their Cautionrie presumptio cedit veritati and the Right must only be holden to be such a Right as truly it was 3dly The five years Possession being in effect a Prescription in favours of the King and his Donatar whatsoever would interrupt any other Prescription must interrupt this as if within the five years the Pursuer had intented a Reduction of the Forefault Persons Right or an Action for Maills and Duties or had required for his Sums and charged thereupon all these would be sufficient interruptions against this quinquennial Possession and would take away the presumption of Collusion or abstracting 4thly The five years possession by the Act of Parliament bears expresly to be peaceable so that if it was turbata possessio it would not be enough and being once a troubled possession by any legall interruption after the said interruption that subsequent possession ceases not to be a troubled possession though there be no furder interruption within the 5 years because interruption once used endures for 40. years Ita est Argyls possession was troubled by pursuits to compt for the Maills and Duties of these Lands upon this Right and that within a year or two before the five and likewise within the 5. year the Marquess of Argyl did corroborat this Right and in corroboration thereof granted Wodset of the Lands of Enzie for the Sums accummulat by vertue whereof the Pursuer within the 5. years was in Possessionâ by uplifting the Back-tack Dutie which being a Cumulative Right possession thereon is valid for both The Defender answered that his Defense upon the Act of Parliament stood valid notwithstanding of all the Replyes because the Act is clear and unrepealled that 5. years peaceable possession of the Forefault Person gives the King unquestionable Right it being retoured by an Inquest as now this is And as to the troubling of the possession no Deed done before the 5 years can have any effect because as the 5 years cut off the most Solemn anterior Rights much more a Citation or other Interruption and as to the Interruptions within the 5. years they are only two one is an Inhibition against Argyl which proceeds not upon this Infeftment but upon a Personal obligement by Argyl to relieve the Pursuer neither does it at all relate to the possession nor any other Action but only as an Inhibition prohibits Alienation And as for the Contract of Wodset with Argyl it is post commissum crimen and so cannot prejudge the Donatar It was answered that albeit the Forefault Persons Deeds being voluntar post commissum crimen cannot be effectual yet where it is upon a cause anterior to the Crime viz. Argyls Intromission by the Infeftment of Relieffâ and the distress occurring against the
contra the Magistrats of Queens-ferry Ianuary 2. 1668. ARchibald Wilson being Elected on of the Baillies of the South Queens-ferry and being Charged to Accept and Exerce the Office Suspends on this Reason that by the 29. Act Parliament 5. King Iames the 3. No Magistrate of Burgh is to be continued in Office longer then one year and by a particular Act of that Burgh no Magistrat is to continue above two years and true it is that the Suspender hath served as Baillie two years already It was answered that the Act of Parliament is long since in desuetude and as to the Act of the Burgh the Election of the Suspender being done by them who have power to make that Act is in effect an alterationt hereof and this Burgh being poor and penury of persons to Serve it will dissolve the same and discourage all others to Serve if the Suspender be Liberat. The Lords found the Reasons of Suspension relevantââ and found that the Suspender could not be compelled to serve longer then one year at once in the same Office Dow of Arnho contraâ Campbel of Calder Ianuary 4. 1668. DOw of Aricho having pursued Campbel of Calder as Heir to his Father for payment of a Bond wherein his Father was Cautioner for the Marquess of Argyl the Bond bore but one Witnesse to Calders subscription and George Campbel one of the Witnesses being Examined if he saw him subscribe Deponed negative but that it was Calders hand Writ to the best of his knowledge there was also other writs produced subscribed by Calder to compare the subscriptions The Lords would not sustain the Bond having but one Witnesse insert to Calders subscrsption upon the foresaid Testimony and Adminicles Mr. Iohn Forbes contra Innis Ianuary 1. 1668 MAster John Forbes as Assigney to Margaret Allerdes having obtained Decreet of Removing against Margaret Innis for Removing from the Lands of Savet wherein the said Margaret Allardes is Infeft in Liferent which being suspended It was alleadged first That this pursuâe is to the behove of Margaret Allerdes who could not obtain a Removing against the Defender because the Defenders Husband being Infeft by the said Margaret Allardes Husband and Author of the Lands of Savet principally and of the Lands of Govan and others in Warrandice The said Margaret Allardes did consent to the Disposition of the Warrandice-lands by which she obliged her self to do no Deed in the contrair of that Right and is also bound in Warrandice with her Husband ita est her pursuing this Action is a Deed in prejudice of the Right of Warrandice-lands in so far as thereby the Person having Right to the principal Lands upon Eviction recurrs upon the Warrandice-lands and so the Consenters own Deed prejudges the same It was answered that by Deeds contrair to Warrandice were only understood some Right granted by the Disponer or Consenter in prejudice of the Right consented to but no wayes a pursute upon any other Right of the Consenter for it were against Reason and Justice that a Purchaser to make himself secure requiring a Wifes consent to Lands to which she had no Right either Principal or in Warrandice of other Lands that her Consent should prejudge her as to her Liferent lands of which there was no mention and as to her Personal Obligement to Warrand the Lands wherein she was never Infeft it is null and can never oblige her being a Wife The Lords found that this Warrandice did not oblige the Wife and that her Consent did not hinder her to pursue upon her own Liferent albeit ex consequente her pursute excluded one having a posterior Right to her Liferent-lands who thereupon had recourse to the Warrandice-lands to which she Consented seing she had granted no Right prejudicial to the Right Consented to It was further alleadged that the said Margaret Allardes agreed with the Person having Right to her Liferent-lands principally that she should accept the Warrandice-lands in stead of her Liferent-lands which excambion putting the Right of the Warrandice-lands now in her Person she who consented to the Right thereof can never come in the contrair of her own Consent to prejudge the same It was answered that a Consânt cannot exclude any supervenient Right of the Consenter but only such Rights as the Consenter had the time of the Consent it is true that a Disponer with absolute Warrandice if he acquire a Right it accresces to his Successor but it is not so in a Consenter whose warrandice is not found to be Obligator further then as to the Rights in the Consenters Person at that time Which the Lords Sustained It was further alleadged that the Pursute as to the behove of the Heir of the Disponer of the Lands in question whose Predecessor being bound in absolute Warrandice he can make no use of no Right prejudicial to his Warrandice 2dly Albeit he be not Heir yet he hath behaved himself as Heir and thereby is lyable to fulfil the Defuncts Warrandice and so cannot come against it It was answered that behaving as Heir being a vitious passive Title is not sustainable by way of exception in this case The Lords Sustained the same and found both members of the alleadgeance relevant Margaret Forbes contra ãâ¦ã Eodem die MArgaret Forbes having granted a Tack of her Liferent-lands to ãâ¦ã bearing expresly for payment of such a Sum of Money and bearing to endure for 19. years she did receive a Back-bond of that same Date bearing that so soon as the Sum was payed the Tack should become void the Tack coming to a singular Successor she pursues him for Compt and Reckoning and Removing and insists upon the Tenor of the Tack and Back-bond It was alleadged for the Defender that the Back-bond did not militat against him being a singular Successor neither being Registrat nor Intimat to him before his Right in respect the Tack is a real Right and no Obligement or Provision of the Tacks-man can prejudge a singular Successor The Lords Repelled the Defense and Sustained Processe against the Defender in respect of the Tack and Back-bond The old Lady Clerkingtoun contra Clerkingtoun and the young Lady Ianuary 9. 1668. THe old Lady Clerkingtoun being Infeft in an Annualrent of seven Chalders of Victual out of the Mains of Clerkingtoun for thirty six years bygone she pursues a Poinding of the ground It was answered for the Laird and his Mother that the Pursuer having been so long out of Possession cannot make use of a Possessory Judgement but must first declare her Right 2dly The young Lady is also Infeft in an Annualrent and hath been by vertue thereof more then seven years in Possession and so hath the benefit of a Possessory Judgement till her Right be reduced and cannot be Dispossest by the old Ladies posterior Infeftment The Lords Repelled both the Defenses and found that an Annualrent is debitum fundi and is not excluded by Possession of a posterior Right and needs no Declarator and
many Witnesses on either side proved not only that the âeithes Lybeled by the Party who Adduced them were holden and repute the true Marches for a very long time but did not express how long but some of them Deponed that Stones in the meithes were commonly holden and repute to be March Stones and so the Testimonies were contrary and if there had not been mutual Probation either Party would have proven sufficiently and neither Party having bounding Charters the question arose whether the âpregâantest Probation should be preferred to give the property to that Party and exclude the other or if both Parties proving so long Possession and mutual interruptions the Probation should infer a promiscuous Possession and Right of the contraverted peice of Land and so resolve into a Commonty albeit neither Party Claimed nor Lybeled Commonty The Lords found the Testimonies of the Witnesses to infer a Commonty to either Party of the Ground in controversie albeit they found that Sir Iohn Gibsons Witnesses were more pregnant yet not so far as to exclude the others but declared that if either Party desired that piece to de divided they would grant Commission for dividing the same and setting down of March-Stones Burnet contra Nasmith Iune 19. 1668. ALexaâ deâ Burnet of Carlâps being Creditor to Sir Michael Nasmith of âosso pursues a Declarator against Iames Nasmith his eldest Son to hear and see it found and declared that an expired Appryzing of the Estate of Pâsso now standing in the Person of the said Iames is Redeemable by the Pursuer as a Creditor from the said Iames as appearing Heir of the Party against whom it was deduced within ten years after the appearand Heirs Right upon payment of the Sums that the appearand Heir truly gave out conform to the Act of Parliament betwixt Debitor and Creditor The Defender alleadged Absolâitor because the Act of Parliament could not extend as to his Case because the Act bears where appearand Heirs takes Right to Appyzing of their Predecessors Lands but the Defenders Father being living cannot be said to be his Predecessor or that the Defender is his appearand Heir and Statutes are stricti juris not to be extended to like Cases It was answered that Reason of the Law given in that part of the Statute being the same and rather more in this Case where there may be Collusion betwixt the Father and the Son there is no ground to except the same from the Act of Parliament the words whereof do bear this Case for in the ordinar Stile it uses to be thus express such a person to be eldest Son and appearand Heir to his Father and albeit his Father be not dead he may well be said to be his Predecessor not only in regard of his age but as being his Predecessor in the Right of these Lands whereunto the Son is a Successor albâit he be a singular Successor The Lords found the Clause of the Act of Parliament to comprehend Rights acquired by appearand Heirs in their Predecâssors Life and therefore declared Agnes Hadden and Mary Lawder contra Shorswood Eodem die THomas Shorswood having granted an Assignation to a Bond of 500. merks in favours of Agnes Hadden and Mary Lâwder they pursue Magdalen Shorswood his nearest of kin to dâliver the same who alleadged Absolvitorâ because the Assignation was never delivered but being made a year before the Defunctsdeath remained by him till his death and was never delivered and it is not the Subscribing of a Writ but the Delivery thereof that makes it that Parties in whose favours it is conceived unless the Party were in Family as a Fathers Câstody is the Childs Custody and equivalent to Delivery and unless the Writ had contained a Clause to be valide without Delivery which this doth not The Pursuer answered that this Assignation reserveth expresly the Defuncts Liferent and a power to dispose thereof during his Life which sheweth his mind not to deliver the Assignation even when he made it otherwise the Reservation in his own favour would not have been in his own hand which sufficiently shews his mind that the Writ should be valide though not delivered in his life 2. This being a moveable sum this Assignation is in effect dânatio mortis causa and so must be valide without Delivery for a Testament or Legacy is valide without Delivery It was answered to the first Alleadgance that the Defunct might have Delivered the Assignation and keeped the Bond so that the keeping of the Assignation was not necessary and so did not import his meaning to be that the Assignation should be valide without Delivery To the second this Assignation is in the Terms and Nature of a proper Assignation and is a Right inter vivos and not donatio morâ is câusa because donatio mortis causa is but as a Legacy affecting only the Deads part but if this Assignation had been Delivered it would have affected all and so could be no donatio mortis causa and albeit it was not Delivered it remains the same kind of Right The Lords Repâlled the Defenses and decerned Delivery in regard of the Tenor of the Assignation and that it was a moveable sum it being also infoâmed that the Defunct had no Children and the said Agnes Hadden who was to have 400. merks of the sum was Cousin-german to the Defunct Relict of Galrigs contra Wallace of Galrigs Eodem die THe Relict of Galrigs pursues for Mails and Duties upon her Seasine given propriis manibus It was alleadged for Galrigs no Process because the Seasine is but assertio notarij without a Warrand there being neither a Contract nor Obligation to give such a Seasine It was answered that Instruments of Seasine given to a Wife pâoprâis manibus have a sufficient Adminicle and presumption by the Marriage and the duty of the Husband to provide the Wife especially where there is no Contract nor other Provision but most of all where the Wife Renunced her Joynture she had with a former Husband in favours of the Granter of the Seasine and his Creditors which is a strong presumption he would give her something in lieu thereof Which the Lords sustained Steuart of Torrence contra Feuars of Ernock Iune 24. 1668. JAmes Steuart as Donator to the Ward of the Laird of Ernock by the Lord Semple of whom Ernock held the Lands Ward pursues the Possessors for Removing who alleadged absolvitor because they brooked their Lands by Feues granted by the Laird of Ernock The pursuer answered non relevat unless the Feues were consented to or Confirmed by the Superiour for by the Feudal Law no deed of the Vassal can prejudge the Superiour when the Lands are Ward The Defenders alleadged their Feues needed no Confirmation because they are warranted by Law by the 72d Act K. Iam. 2. which stood valide until the Act of Parliament 1606. Prohibiting Feues granted but by immediat Vassals of the King Ita est The first Act cannot
extend to the Kings Sub-vassals because it bears only Free-holders and bears that the King shall accept of the Feu Duty during the Ward but the Ward of his Sub-vassals would never fall in the Kings hand and this meaning of the Act of Parliament is evident by the Act of Parliament 1606. bearing expresly that there was no warrand by the first Act for any Feues but such as were granted by the Kings immediat Vassals It was answered for the Defenders that they oppone the first Act of Parliament bearing expresly a general Reason of granting Feues for the policy of the Kingdom and that the King would give Example to the rest and that the Act no wayes restricteth to Free-holders of the King but others who hold of Subjects Ward are called Free-holders in opposition to Feues which is also cleared by the 91. Act Parliament 1503. The Title whereof bears a power to all persons Spiritual and Temporal to set their Ward Lands Feu which clears the meaning of the Parliament and the common custom till the year 1606. which is acknowledged in the Narrative of the Act 1606. which doth only annul Feues set to Sub-vassals in time thereafter and as to the Narrative thereof the Statutory part and not the Narratives of the Acts of Parliament which the Parliament doth not much notice are our Rules and this Narrative is contradicted by the Narrative of the Act of Parliament 1633. bearing that there is no reason why the Kings immediat Vassals should grant Feues more then Sub-vassals The Lords sustained the Feues being granted before the Act of Parliament 1606. Andrew Gray contra Howison and Gray Eodem die ANdrew Gray being Infeât as Heir to his Grandsire in certain Lands of the Barony of Foules holden blensh of the House of Gray pursues a Reduction of a late Infeftment in Anno 1655. granted to Walter Watson as long Posterior to his Right Compearance is made for William Gray of Haystoun as being Infeft by the Lord Gray and Sir George Kinnard who was Donator to the Recognition of the Estate of Gray by the alienation of this Lords Father which Recognition hath been declared by the Lords and alleadged that he hath the only Right because by the Recognition the old Rights of the House of Gray being void the Pursuers Subaltern Right fell in consequence therewith The Pursuer answered that before the Defenders Right he had obtained a Precept of clarè constat acknowledging his old Right whereupon he was Infeft It was answered that the Precept doth bear expreslly to be in obedience of Precepts out of the Chancellary upon the Pursuers Retour and so being a necessar Act and not voluntar it could be no acknowledgement or Ratification of the Pursuers Right The Lords having considered the Precept that albeit it mentioned the Retour in obedience to the Precept yet it bore also quoniam mihi clare constat c. in the common strain of a Precept of clarè constat acknowledging the Pursuers Predecessors Right and his Own They found that it did exclude the Donator and all having Right from him thereafter and after the Seasine past thereon George Heriot contra Town of Edinburgh Iune 25. 1668. GEorge Heriots Father being Infeft in an Annualrent out of certain Tenements in the Canongate obtained himself to be Served Heir in special therein before the Baillies of the Canongate and because the samine is within a Regality having a proper Chappel and was not to be Retoured to the Kings Chancellary So that Precepts were not to be had out of the Chancellary against the Town of Edinburgh Superiours to Charge them to Infeft him therefore George upon Supplication obtained Letters from the Lords to Charge them and they being now Charged he pursues a Poinding of the Ground It was alleadged for the Town no Process for poinding of the Ground till the Pursuer were Infeft in the Annualrent It was answered that he having done Diligence against the Town it was equivalent and did exclude them from proponing that alleadgance It was answered that no personal objection against the Town could be a sufficient Title against this Action without a real Right The Lords found no Process till Infeftment but declared that so soon as the Magistrates should be Denunced they would grant Warrand to the Director of the Chancellary to issue a Precept for Infefting the Pursuer for supplying the place of the Magistrates and their Contumacy Black contra Scot. Eodem die ALexander Black having obtained a Decreet before the Commissar of St. Andrews against Iames Scot for 126. pounds pursues a Transferrence thereof against the Representatives of Iames Scot who alleadged absolvitor because the Decreet is ipso jure null being given by a Commissar in a matter not Consistorial far above the quantity allowed by the Injunctions and there being nothing to instruct but the Defenders being holden as confest the Decreet at least must be turned to a Libel and yet proven 2. If the Defunct had been obliged to have compeared he would not only have denyed the Receipt of the Vinegar and Grapes Libelled but he would have offered to prove and the Defender offers yet to prove that they were refused and lay publickly upon the Shore where they were disloaded 3. It was offered to be proven the Defunct was lying on Death-bed the time he was Cited to Depone and was holden as confest The Pursuer answered that albeit these Reasons were relevant to Repone a Party holden as confest to their Oath yet were not sufficient to annual the Decreet seing the Pursuer lost his Probation the Receipt of the Goods having been two years agoe and albeit this sum exceeded the Commissars Injunctions yet the violation thereof does not annual his Sentence or take away his power unlesse the samine had been objected upon Compearance The Lords found not the Defenses Relevant to annul the Decreet or to hazard the loss of the Pursuers Probation but seing the Defender burdened himself with a contrair Probation The Lords inclined to admit the same if it were sufficiently pregnant and therefore ordained the Pursuer before answer to adduce Witnesses that the Goods were never taken off the Shore but Boated there Inglis contra Laird Balfour Eodem die THere being an Un-printed Act of Parliament for uplifting the Taxt and Loan of the Shire of Fife for Relief of some Noblemen ingaged for the Shire in Anno 1661. The Council did thereafter give Commission to certain persons in the Shire to conveen the persons resting and accordingly Cited the Laird of Balfour and he not compearing ordered quartering against him he Suspends on this Reason that this being a privat and particular Act of Parliament to which he was not called is salvo jure and could not burden his Lands of Creik because he is singular Successor therein to the Laird of Creik It was answered that there is no exception of singular Successors in the Act of Parliament so that this Act being a Reviving of the
THe Laird of Wamphray being due a yearly Annuity to his Good-mother the Lady Wamphray which now belongs to the Laird of Castlemaines her Husband jure mariti there is a competition thereanent betwixt Factor to the Earl of Dumfress whose Name was used in the Gift to Dumfreis behove as Donator to the Escheat of Castlemaines and Smart as having appryzed from Castlemaines the Right to this Liferent jure mariti who alleadged that he ought to be preferred to the Donator because albeit his Appryzing was after the Rebellion yet it was upon a Debt anterior to the Rebellion and was long before the Donators Gift and therefore according to the known Custom Diligences of Creditors being before the Gift or Declarator are alwayes preferred to the Donators of single Escheat It was answered for the Donator that that Custom was never further extended then to Moveables or Moveable Sums poynded or made forthcoming upon Arrestments but never to Rights having tractum futuri temporis which cannot be carried by poynding or Arrestment but by Appryzing or Adjudication as Tacks or Liferents when Assigned so that the jus mariti being a Legal Assignation and thereby falling under the Husbands single Escheat falls to the King and Donator by the Rebellion and cannot be taken away by an Appryzing pesterior to the Rebellion Which the Lords found Relevant and preferred the Donator Mr. George Iohnstoun contra Parichloners of Hodony Eodom die MR. George Iohnstoun having Right to a Tack set by the Parson of Hodony for his Lifetime and three years thereafter and having used Inhibition pursues the Possessors of the Lands who alleadged Absolvitor because the Tack is null being set for more nor three years without consent of the Patron by the Act of Parliament 1621. It was answered that the Pursuer restricts his Tack to three years The Defender opponed the Act of Parliament declaring such Tacks simply null as were set for more then three year The Lords Sustained the Tack for three years as allowed by the Act of Parliament Râbert Thomson contra Earl of Glencairn Iuly 21. 1668. RObert Thomson having pursued the Earl of Glencairn for a Compt of Wright Work wherein he was Imployed by the late Earl for his Lodging and Yeards when he dwelt in my Lord Oxfoords House It was alleadged for the Earl that the Imployment being a Direction was only probable scripto vel juramento The Lords before answer having ordained Witnesses to be Examined and their Testimonies being clear and pregnant that the late Earl did imploy the Pursuer in this Work and called for him frequently and ordered the Work from time to time they Sustained the Witnesses in the Probation and found it proveâ It did not appear that this Pursuer was within three years of the Work but the Defender did not insist in any Defense thereupon Patoun contra Patoun Eodem die PAtoun in his Sonâ Contract of Marriage Dispones to him his Estate and the Tocher was payable to the Father after the Contract and before the Marriage the Father takes a Bond of 2800. Merks from his Son the Wife and her Brother pursues a Reduction of this Bond as fraudulent contra bonos more 's contra pacta dotalia It was alleadged for the Father that he might very lawfully take a Bond from his Son for provision of his Children after the Contract and before the Marriage having Infeft his Son in his whole Estate which was worth 1000. Merks yearly and getting but 2500. Merks of Tocher and having some Debt and many Children It was answered that the Estate was not worth 600. Merks of Rent and the Fathers Liferent of 400. Merks reserved so that the Annualrent of this Bond would exhaust the remainder and they would have nothing to live upon The Lords having considered the Contract and Alleadgances thought that it was not sufficient to annul the Bond that it was after the Contract and before the Marriage if there was any reasonable cause Therefore and before answer ordained the Commuuers at the Marriage to be Examined whether it was communed and agreed that the Tocher should be accepted for fâtisfaction of the Debt and Bairns Portions and they having Deponed Affirmative The Lords Reduced the Bond as contrair to the Communing at the Contract of Marriage the Estate being very mean Sir Iohn Weems contra Campbel of Ednample Eodem die SIr Iohn Weems having Charged Ednample for Maintainance due in Anno 1648. He Suspends on this Reason that upon consideration of the burning of his House in the time of the Troubles he got an Exemption and Discharge from the King and Parliament Anno 1651. It was answered that that Parliament was Rescinded and the Charger had a Commission to uplift all Maintainance in Anno 1648. from the Heretors notwithstanding of any exemptions granted by these pretended Parliaments and their Committees The Suspender answered that the Act Rescissory has an express Reservation of all privat Rights acquired by Authority of these Parliaments for the time and so this Exoneration of his becoming his privat Right falls not by the Act Rescissory and as to the Act of Parliament and Commission to the Charger it must be understood salvo jure and cannot take away the Suspenders anterior Right acquired Which the Lords found Relevant and Suspended the Letters and found that the Suspenders Exoneration was not taken away either by the Act Rescissory or by the Act and Commission in favours of Bogie Lord Rentoun contra Laird Lamertoun Eodem die THe Lord Rentoun Justice Clerk having pursued Lamertoun as Representing his Father for the Pursuers Rents and Goods intrometted with by the Defenders Father in Anno 1641. The Defender excepted upon the Act of Pacification in Anno 1641. and upon the Act of Indemnity in Anno 1661. and produced his Fathers Commission by which he medled so that having done by publick Authority for the time in relation to the War and differences of the time he was secured by both these Acts. The Pursuer answered that the Act of Pacification and that whole Parliament was Rescinded and the Act of Indemnity had an express exception of all that medled with publick Monies of Fines Forefaultors or Sequestrat Estates and had applyed the same to their own use and had not duly counted therefore and the Pursuer insisted for what the Defenders Father had applyed to his own use or had not duly counted for The Defender Duplyed that his Father had duly counted for his whole Intromission and had made Faith to the Committee of Estates particularly that he had truly given up his Charge without omission and thereupon was Discharged The Pursuer answered that he had instructed much more Intromission and was content to allow the particulars in the Compt produced and craved the superplus which he had now proven by Witnesses adduced before answer and as for the Oath it could only be understood as an Oath of Credulity like that of Executors Confirming Testaments which doth not
for the Earl of Hume and was content that Witnesses should be Examined anent the Inhibition and Apprizings being still in the Possession of the Earl of Hume in his Charter Chist but not upon any other ground to take away his Assignation and solemne Right which cannot be taken away by Witnesses but scripto vel juramento and most of these presumptions are but weak conjectures no wayes inferring that Ioussie was payed by the Earl of Humes Means and the great friendship that was betwixt Annandail and Hume alleviats the same it being the cause for which Annandail forbore to take Infeftment or do Diligence thereby to allarum Humes Creditors that his Inhibition would always work his preference and on that same ground did consent to several Creditors Rights there being enough remaining for him and which was an evidence that this Right was generally known and that without it Hume could not give Security The Lords ordained Witnesse sexâ officio to be Examined upon all the points alleadged for âlearing of the Trust. The Kings Advocat contra the Earl of Mortoun and Viscount of Grandison February 29. 1669. THe Kings Advocat pursues a Reduction of the Rights of the Earldom of Orkney and Zetland granted by the Deceast King Charles the first or by this King himself to the Earl of Mortoun or Viscount of Grandison and produces a Contract betwixt the King and the Earl of Mortoun in Anno 1643. and a Charter following thereupon whereby the Lands are granted and Disponed blench with several extraordinaâ Priviledgâs as having right to the Bullion and other Customs of Goods Imported there and also a Charter in Anno 1646. by the King to the said Earl relating to a Dissolution in the Parliament 1644. containing nova daâtus and bearing also blench there is also produced an Infeftment granted to the Viscount of Grandison and after the said Infeftment a Ratification by the Parliament 1661. In the which Ratification there is contained a Dissolution of the Earldom of Orkney and Zetland in favours of Grandison wherein also the Dissolution formerly made in favours of Mortoun in Anno 1644. is particularly Rescinded upon this consideration that neither the King nor his Commissioner were present in the Parliament 1644. and that his annexed Property could not be Disponed nor Dilapidat without an express aât of his own Ratified by Parliament After this Dissolution in favourâ of Grandison the King granted no new Infeftment to Grandison The Advocat having holden the production satisfied with the Writs produced Mââtoun and Grandison compeared not at all and some others having publick Rights from them being called did also pass from their compearance and submitted to the Kings favour and compearance being made for some of the Vassals holding of Mortoun they were not admitted because they produced no Wâits to instruct there Interest so the Lords proceeded to Advise the Reasons of Reduction which were upon these points First That by the Law and several particular Acts of Parlâament the Patrimony of the Crown being the Lands and Customs annexed to the Crown might not be Disponed by the King unless the samine upon weighty Motives and Considerations had been Dissolved by his Majesty and the Parliament and Dissolutionsâ made after Infeftments are not valide Parliament 1597. cap. 236. and by the 234. Act of that same Parliament the annexed Property can not be Seâ otherwise but in Feu Ferm so that the Earldom of Orkney being annexed to the Crown by the annexation produced in Process and the Contract and Charter 1643. being before any Dissolution is absolutely null and the Infeftment in Anno 1646. albeit relating to a Dissolution in Anno 1644. yet no such Dissolution is found in the Records and though it were it is Rescinded in the Ratification in favours of Grandison in the Parliament 1661. upon so weighty a Reason as the King or his Commissioner not being present And because the Parliament 1644. is Rescinded by the Parliament 1661. wherein albeit there be a salvo of privat Rights yet that cannot reach to the Patrimony of the Crown especially seing in that same Parliamentâ 1661. His Majesty having Revocked all Deeds done by Him or his Father since 1637. which by the Laws of the Nation he might not do to the Derogation of his Honour or Crown the Parliament has Ratified the same Revocation as to all Rights granted since 1637. Contrair to the Laws and Acts of Parliament preceeding 1637. and likewise by an express Act of Parliament it is provided that no Ratification in Parliament shall prejudge the Crownâ or supply a Dissolution and that none of the Kings Customs which are also annexed can be effectually Gifted The Lords found these Reasons Relevant and proven and Reduced all the Rights produced before the Dissolution in Anno 1661. since which there is no Infeftment granted Pargilleis contra Pargilleis February 26. 1669. UMquhile Abraham Pargilleis having no Children but one Bastard Daughter Dispones some Lands acquired by him to Abraham Pargilleis eldest lawful Son of that Daughter Iohn Pargilleis his Brother Son and nearest Heir pursues a Reduction of that Disposition as being done in lecto and the Defender alleadged that the Defunct went abroad to Kirk and Mercat thereafter unsupported and the Pursuer replying that he was supported and either Party contending for Preference the one that he walked free of himself and the other that he was supported The Lords considering the advantage to the Party that had the sole Probation would prefer neither but before answer ordained Witnesses to be adduced for either Party concerning the Condition the Defunct was in as to Sicknesse or Health when he Subscribed the Disposition and the manner of his going abroad whether free or supported and now the Lords having Advised the Testimonies by which it was proven that the Defunct was Sick the time of the Subscribing of the Disposition and that he continued Sick till his Death It was also proven that he went unsupported a quarter of a Mile when the Seisine was taken six days after the Disposition and that after the same he went three times to Calder and about three quarters of a Mile off and that he was helped to his Horse and from his Horse and that he was helped up Stairs and down Stairs but that he walked a foot unsupported in the Mercat of Calder and up and down from my Lords House being three pair of Buts of rising Ground It occurred to the Lords to consider whether the Sickness proven would have been sufficient not being ââorbus sonticus or in extremis or whether the presumption of Health sufficient to leige poustie was enough that he came out to Kirk and Mercat albeit the Sickness remained and whether the probation of the Sickness remaining could take away that presumption and whether his being helped to his Horse and from his Horse or up and down Stairs and his Man holding his Bridle as he Rode to and returned from Calder did infer that supportation
Simulate in so far as it is offered to be proven that Wishart the common Author did allow to the Donator in the price of the Lands not only the sum whereupon the Horning procceded but also the Expences of the Gift so that it is purchased by the Rebels Means whence the Law presumes it to be to his behove It was answered that this Condescendence cannot infer Simulation to the Rebels behove because it was lawful to Hamiltoun of Corse finding that his Right was not secure to fortifie the same by this Gift and in his account of the price of the Land upon the Warrandice he might require Retention not only of the sum in the Horning but of his Expenses in necessarly purchasing the Gift and might apply the same for the Security of the Lands bought from the Rebel only which is to his own behove but if he were extending the Gift to other Lands of the Rebels that might be presumed to the Rebels behove because the Donator had no anterior interest of his own to these Lands It was answered that if the Rebel had given the Mony to purchase the Right before it was purchased it would infer unquestionable Simulation and it is wholly equivalent that having then the Rebels Mony in his Hand the Rebel ex post facte allowed the Expences of the Gift 2dly Albeit such an allowance ex post facto would not be sufficient where the Donator acquired the Right to the Lands bona fide and then ex necessitate behoved to purchase the Gift to maintain his Right but here the Donator was in pessima fide and most unfavourable because if need beis it is offered to be proven by his Oath or Writ that he knew of George Hamiltouns Right and that the same was compleat before he bought from the common Author and so is particeps frandiâ with his Author in granting double Rights contrary to Law and therefore the presumption of Simulation and Fraud ought to proceed against him upon the more light Evidence The Lords found the Ground of Simulation not Relevant upon taking allowance from the Rebel of the price if it was done for the maintaining of a Right bona fide acquired but found that it was sufficient to infer Simulation if the Right was mala fide acquired and that the Donator at or before he bought the Land knew of the other Parties Right Pearson of Balmadies contra The Town of Montross Iune 23. 1669. PEarson of Balmadies being Collector of two of ten and the sixteen penny imposed by Parliament anno 1633. and the Magistrates of the Town of Montross having Written a Letter to him promising Compt and Payment in anno 1637. Some few dayes after the Letter he made Compt with Orbistoun general Collector and Charged himself with the whole Taxation of Montross as received And in anno 1654. obtains a Decreet against the then Magistrates holding them as confest upon the quantities of Taxation of their Burgh They now Suspend on this Reason that the Decreet was in absence and the Magistrates only holden as confest and they are now content to Depone that they never had any Stent Roll of the said Taxation and by the Chargers Compt produced he acknowledges the proportion of Montross received And further alleadges that there being neither Warrand from King nor Parliament there should be no Charge or Pursuit Sustained for these old Taxations especially of Mony where the most part of the Monyed Persons lyable then are now insolvent and the Town cannot get their Relief But as for the Land Taxation the King has given Warrand to lift it and it is still secure being debitum fundi The Charger answered that he being neighbour to the Town did upon their desire delay to distress them and held Compt for them as appears by their Letters produced and therefore it will not infer that Charges may be used upon the Act of Parliament only unless Parties had given Writ therefore and the Magistrates were obliged by the Act of Parliament to have uplifted the Taxation debito tempore and payed it to the Collectors and it must be presumed they did so or if they did not it was their fault in the Discussing of this Cause It occurred to the Lords that this Taxation not being imposed upon the Towns Common-good but upon the Inhabitants severally for their Mony and that the Magistrates were not countable to the Town for the Taxation of Mony nor were they lyable for their Magistrates who had not this power of Collection by their Office but by the Commission of Parliament therefore The Lords found the Town and present Magistrates not lyable but prejudice to the Pursuer to insist aganist the then Magistrates their Heirs and Executors Robert Fairie contra Iames Inglis Eodem die RObert Fairie having Charged Iames Inglis younger of Mordistoun for 1000. merks due by Bond he did Suspend and raised Reduction upon Minority Lesion and Circumvention Litiscontestation was made upon the Reason of Minority and the Term was Circumduced and he Decerned He Suspends again and insists upon the second Reason of Reduction upon Circumvention and qualified it thus That albeit the Bond bear borrowed Money yet he offers to prove by Fairies Oath that the true Cause was the Boot between a Horse and a Mare interchanged betwixt the Parties and albeit the Suspender gave as good as he got yet he was induced to give this Bond of 1000. merks to Boot so that he is lesed ultra dimidium justi pretij which in Law is a sufficient Ground alone to dissolve the Bargain and restore either Party actione redibitoria quanti minoris and next in so gross inequality ex re praesumitur dolus The Charger answered that the Reason is no way Relevant because our Law and Custom acknowledges not that Ground of the Civil Law of annulling Bargains made without Cheat or Fraud upon the inequality of the Price neither can there be any Fraud inferred upon the account of the Price of an Horse which is not quantitas but corpus and has not a common Rate but is regulat secundum praetium affectionis and now the Horse and the Mare not being to be shown in the condition they were in the Suspender cannot recal the Bargain 2dly The Reason ought to be Repelled because by a Ticket apart with the same Date of the Bond the Suspender declares upon his Soul and Conscience that he should never Impugn the Bond and thereafter by his second Bond produced he Ratifies the same and passes from any Revocation thereof or quarrel against the same The Suspender answered that he was content to refer to the Chargers own Oath whether in the Chargers own esteem of the Rate the Suspender was not lesed above the half and as for the two Tickets the first was obtained when he was Minor and both laborant eodem vitio the inequality still remaining without satisfaction The Lords in respect of the Tickets and Ratification after Majority and that there was
proportional to the remainant Lands lying in that Shire so that where the other Lands are generally highly Retoured it is evidently presumed that the Property was so Retoured and seing the Property did of old pay no Taxation it were strange now to make it bear more then the other Temporal Lands about it The Lords found that the Property of the Shires had the same abatement with the rest of the temporality in these Shires Earl of Marishal contra Leith of Whitehaugh Eodem die IEan Keith having a Right to a Wodset of the Mains and Miln of Troup and being Married to Iohn Forbes she Disponed the Heretable Right to his Brother which Right is now by progress in the Person of Leith of Whitehaugh Isobebs Brother raised a Reduction in Anno 1628. of the Right granted by her to her Husbands Brother and now his Right and an Assignation to the said Process coming to the Earl of Marishal and by him to Lesmore they insist in their Reduction upon the Reason of Minority and Lesion It was alleadged for the Defender First No Process because prescription is past since the Right was granted by Isobel Keith which cannot be interrupted by the Reduction in Anno 1628. because it is evident by inspection of the Reduction that it is but filled up of late and that the Executions there of are new so that it signifies no more nor blank Paper or a blank Summonds till the Reasons be filled up and insisted in before which prescription was compleat 2dly Absolvitor because the Right granted by Isobel Keith to her Husbands Brother was to the Husbands behove Likeas there was a blank Bond granted by the Brother to the Husband so declaring and there being no other Contract of Marriage this Disposition must be understood as granted to the Husband in contemplation of the Marriage and being but the Right of 10000. Merks which was but a competent Tocher it was no Lesion to Dispone the same to the Husband or any to his behove and offered to prove by the Brothers Oath that there was such a back Bond and that yet there is a back Bond by him to whom the Brother Disponed The Pursuer answered to the first that interruption is sufficient by any Act whereby the Party having Right may follow the same so that Summonds albeit not legally Execute would yet make an interruption though no Sentence could follow thereupon and a Summonds being blank must be presumed as comprehending all the Grounds and Reasons that might have been filled up therein but here the Lybelling of the Interest which is not with new Ink bears expresly that the Pursuer as Heir to his Sister has good interest to Revock and Reduce Deeds done by her to her prejudice which doth imply the Reason of Minority and Lesion To the second albeit the Disposition by the Wife had been to the Husband yet it is simply Reduceable upon Minority there being no remuneratory Obligation upon the part of the Husband providing her to a Jointure in which case if the Provision had been suitable there would have been no Lesion and if not suitable the Lords might Reduce it in part or Rectifie it if done in the Wifes Life but here she having nothing from the Husband and being Dead she cannot now receive a Jointure and so the Right is Reduceable in totum especially seing the said Iohn Forbes did violently carry away the said Isobel Keith and Married her without her Friends Consents and must be presumed by the same means to have purchased the same Disposition from her without any remuneratory Provision to her 2dly There is not nor cannot be known any such back Bond and it were absurd that the Husbands Brothers Oath alone should prove the same in favours of his Brother The Defender answered that albeit there was no Jointure provided yet the Law provides a Terce which ofttimes is better nor the Jointure The Pursuer likewise answered that the Law did provide the jus mariti and the courtesie so that either Party ought either to acquiesce in the provision of Law or the Provision of Parties must be mutual The Lords Repelled the first Defense especially in respect of the manner of Libelling the Title and found not the Executions of the first Summonds to appear new and therefore Sustained them unless the Defender would improve the same they found also that alleadgeance that the Disposition was to the Husbands behove was not to be Sustained especially seing no back Bonds were produced or offered to be proven and that the manner of Probation offered was no way sufficient that there was no Provision for the Wife Duke Hamiltoun contra the Laird of Blackwood Eodem die THe Duke of Hamiltoun pursues the Laird of Blackwood that it may be declared that he is his Vassal in his Lands of Blackwood on this ground that the late Marquess of Hamiltoun having Disponed to the King the Abbacie of Arbroth did in consideration thereof in Anno 1636. get a Charter from the King of the Barony of Leshmahago a part of the Abbacie of Kelso of which the Lands of Blackwood were holden Waird which Lands having been Apprized and the Apprizers Infeft holden of the King the Laird of Blackwood having thereafter Disponed them to Major Ballantine by his Contract of Marriage with Blackwoods Daughter and the Major having purchased a Right from the Apprizers both upon Blackwoods procuratory of Resignation and the Apprizers he Resigned the Lands in the Marquess Hand and did take his Infeftment holding Waird of him likeas this Blackwood who is Heir of Provision to the Major as procreat by Marion Weir Blackwoods Daughter with William Lowry hath no other Right but as Heir of Provision to the Major and yet he hath taken Infeftment holding of the King likeas the said William Lowry his Father as lawful Administrator and taking burden for him has obliged himself by his Bond that so soon as the Marquess should obtain a Right to the Superiority he should take his Infeftment from him Waird and by the Act of Parliament 1661. Ratifying the Act of Annexation 1633. It is expresly provided that any Right to the Superiority of Kirk Lands granted by the King yet notwithstanding the annexation shall be valide as to such Vassals who have or shall consent to the Rights of the Persons obtainers of the saids Superiorities so that Major Ballantine having consented by taking Infeftment in manner foresaid he and his Successors must continue the Dukes Vassals The Defender alleadged Absolvitor because any Right the Duke has or the Marquesse had to the Superiority is absolutely null by the saids Acts of Parliaments annexing the Superiority of Kirk Lands to the Crown so that unless there had been a Dissolution in Parliament no Right of these Superiorities is valide but null and the exception of the said Act 1661. is only in the case of the Vassals consenting to a Right of Superiority Ita est there can be no Right but legitimo
from the Marquess of Hamiltoun upon Blackwoods Resignation and upon the Resignation of two Apprizers in Anno 164â The Marquesse then having a Right to the Superiority granted by the King in Anno 1636. Which albeit it was not then valide because the Lands were then annexed to the Crown by the Act of Parliament 1633. and were not Dissolved yet the Major having taken Infeftment as to his part his Heirs could not quarrel the Superiority though the King might and now the King and Parliament by the Act 1661. having declared such Rights of Superiority valide as to these Vassals who had or should Consent and the Duke having gotten a new Right of the Superiority since the Act the former Consent is valide Likeas William Lowry Blackwoods Father and Tutor gave a Bond that so soon as the Duke should obtain the Superiority the Son should become Vassal The Defender alleadged that his Fathers Bond was only effectual against his Father but not against himself and his Father never being Feear of the Estate his Bond could never be a Consent of the Vassal neither can the Consent of any Tutor or lawful Administrator be sufficient to give such a Consent which is not an Act of Office or Administration and as to the Infeftment taken by Major Ballantine First The simple taking of Infeftmen from a Lord of Erection by the Vassals of Kirk-lands cannot import their passing from the King and the benefit of the Act of Annexation so that they may not return to the King thereafter neither can it be such a Consent as it is meant in this Act of Parliament otherwise the King and the Leidges should both losse the benefit of the Annexation seing most part of the Vassals have continued to take Infeftment of the Lords of Erection through ignorance or inadvertance finding their Infeftments flowing from the Lords of Erection and in respect that the Lords of Erection have still Right to the Feu-duties till they be Redeemed which being a common Error that they may safely so do till the Redemption and yet may still take Infeftment from the King when they please it were a very evil consequence if thereupon they should not only lose the benefit to be Vassals to the King but by disclamation lose the Property 2dly As to this case it cannot be presumed but Major Ballantine is in the same case with other Vassals of Kirk-lands and also in this much better case that he is in a manifest and palpable Error in so far as the Disposition that he takes from the Apprizers bears expresly that the Apprizers are informed that the Marquess of Hamiltoun was Superior and their Procuratory bears warrand either to Resign in the Kings hands or the Marquess hands or in the hands of any other lawful Superior and Blackwoods Procuratory in the Contract of Marriage bears warrand to Resign in the hands of the King the Marquess of Hamiltoun or the Earl of Roxburgh who had Right of Erection before the Marquess or any other lawful Superior so that by Resigning in the Marquess hand it is evident that the Resigner and the Major believed that the Marquess was Superior whereas he was not any Right he then had being absolutely null by the Act of Annexation 1633. and the King was the only Superior yea by the taking of that Infeftment he incurred disclamation unless it were excused by his error but the Consent requisit here must be such as the Party knowing the King was his Superior did choose to interject another Superior and become his perpetual Vassal It was answered for the Pursuer that the acceptance of the Infeftment as it is now stated can be no Error because it is evidenced by the Apprizers Rights now produced that they hold of the King and were Infeft by him and yet the Major took the Infeftment upon their Resignation in the Dukes hands likeas the Rights produced relate to the Right of Annexation which being a most publick Law and recent at that time cannot be thought but to be known to any at that time ignorantia juris neminem excusat It was answered that the Error was the greater that the Apprizers Infeftment was holden of the King seing in their Disposition and Procuratory they mention they were informed the Marquess was Superior and therefore the Procuratory is to Resign in the hands of the King the Marquess or any other lawful Superior and the other Procuratory is in the like Terms so that the Accepter of the Writs did not intend nor do any new or free Deed in favours of the Marquess but did only that Deed that they supposed was necessar and so did not by this Infeftment make the Marquess Superior as that his Right should be valide by their Consent but did take the Right from the Marquess as being Superior before they took it which was an palpable Error so prejudicial to them that it might infer disclamation if it were not excusable upon Error and if it had been intended that the Major minded to make the Marquess his Superior where he was not there is no doubt but it would have been exprest in the Right it self being so great a deference to the Marquess and would not have been past over in common Form neither can it be thought that this was procured by the Marquess upon accompt and favouring the Major the Infeftment being granted by the Lady Marquess as her sons Commissioner he being then in England and having no great influence then being the time of the Troubles of the Countrey It was answered that the other Vassals of that Barony did voluntarly Accept the Marquess as their Superior and gave Bonds for that purpose which are produced and it is most like that Blackwood hath given Bond which hath been lost or given up to him upon taking this Infeftment which is an implement thereof The Lords did not see that the single taking of the Infeftment from a Lord of the Erection did import his Consent to become Vassal thereby for ever or that he might not thereafter return to the King neither did they find such a Consent as is meant in the Act of Parliament but considering the whole Circumstances of this Case and especially the Fathers clear Bond who procured and settled the Controverted Right of this Estate for his Son then an Infant they found there was no Error but a choise of the Marquess to be Superior in place of the King and therefore declared Lesly contra Cunningham Eodem die LEsly having Arrested certain Sums for payment of a Tack-duty due to him It was alleadged for the Party in whose hands Arrestment was made that the Arrestment could not reach any further then for the Tack-duty Arrested which was due the time of the Arrestment but not for any Term following the Arrestment because Arrestment being a Legal Execution can no more proceed upon a Debt before the Term that the Debt be due then Apprizing and further alleadged that they had made payment of
and all the Leidges were Inhibite to block or buy from him so that the Pursuer has acted against the Prohibition of the Letters and cannot pretend that he purchased bona fide being so publickly Inhibit and the Inhibition put in Record he neither should nor did adventure to purchase without special warrandice to which he may recur 4thly Such Solemnities when omitted may be supplied for there is nothing more ordinar than in Summons to add any thing defective in the Executions and abide by the truth thereof and many times these Solemnities are presumed done though not exprest as a Seasing of a Miln was Sustained though it bear not Delivery of Clap and Happer yet bearing a general with all Solemnities requisite it was Sustained and a Seasine of Land though it bear not Delivery of Earth and Stone seing it bear Actual Real and Corporal Possession and the Clause âacta erant hac super solo c. ut moris est Yea in other Solemnities which the Law expresly requires as three âlasâs in the Executions of Horning and six knocks and the affixing of a Stamp have all been admitted by the Lords to be supplied by proving that they were truely done though not exprest in the Execution Though Horning be odious and penal inferring the loss of Moveables and Liferent therefore it ought much more to be supplied in the case of an Inhibition which is much more favourable to preserve the Croditors Debt and here the Messenger hath added to the Execution that a Copie was Delivered and Subscribed the same on the Margent and it is offered to be proven by the Witnesses in the Execution that it was truely so done The Pursuer answered that there was nothing more essential in an Execution than delivering of a Copy for showing or Reading of Letters was no Charge but the delivering of the Copy was in effect the Charge and albeit Executions which require no Registration and may be perfited by the Executor at any time may be amended as to what was truly done Yet where Executions must necessarlie be Registrate within such a time else they are null after the Registration the Messenger is functus officio and his assertion has no Faith and seing the giving of a Copie is essential and if it be omitted would annul the Execution so after Registration it canâot be supplied because in so far the Execution is null not being Registrate debito tempore for as the whole Execution would be null for want of Registration so is any essential part and whatever the Lords has supplied in Hornings yet they did alwayes bear that the same was lawfullie done according to the Custom in such cases and this Execution does not so much as bear that Phillorth was lawfullie Inhibite but only according to the Command of the Letters which do not express any Solemnitie and it hath been found by the Lords that a Horning being Registrate and not bearing a Copy Delivered it was found null because that part was not in the Register nor was it admitted to be supplied any way but that it were proven by the Oath of the Keeper of the Register that that Clause was upon the Margent of the Execution when it was presented to the Registister and was only neglected to be insert by him which shows how necessarâ a Solemnity the Lords have accompted the giving of a Copy and Registrating thereof And if Solemnities of this kind be by Sentence passed over it will not only incourage Messengers to neglect all accustomed Solemnities but course of time may incroach on all other Solemnities whereas if this be found necessar none will ever hereafter omit it or any other necessar Solemnity The Lords found the Inhibition null and that the Delivering of a Copy was a necessar Solemnity which not being contained in the Register they would not admit the same to be supplied by Probation in prejudice of a singular Successor Acquiring for a just price Hadden contra The Laird of Glenegies Eodem die HAdden being Donator to the Marriage of the Laird of Glenegies pursues Declarator for the avail thereof The Defender alleadged Absolvitor because by an Act of Parliament 1640. It was Declared That whosoever was killed in the present Service their Waird and Marriage should not fall Ita est Glenegies was killed during the Troubles at the Battel of Dumbar It was Replyed that the present Troubles could not extend further than to the Pacification Anno 1641. After which there was peace till the end of the year 1643. 2dly The Parliament 1640. and all the Acts thereof are Rescinded It was Duplyed That the Troubles were the same being still for the same Cause and that the Rescissory Act contained a salvo of all private Rights Acquired by these Rescinded Acts. It was answered that this was a publick Law and the salvo was only of particular concessions by Parliament to privat Parties The Lords found that the Act 1640. reached no further than the Pacification by which the Troubles then present were Terminate The Lords Demured in this case upon remembrance of a Process before them at the instance of the Heirs of Sir Thomas Nicolson against the Heirs of the Laird of Streichen upon the Gift of Streichens Waird to Sir Thomas who Died the time of the War being Prisoner by occasion of the War and after Pacification that they might have seen what they had done in that Case but did not get the Practicque and the Parties being agreed they Decided in manner foresaid wherein this was not proponed nor considered that the foresaid Act was always esteemed an Exemption after the Pacification during the whole Troubles and no Waird for Marriage was found due that time though many fell during the War and if it had not been so esteemed the same Motives that caused the first Act to be made in Anno 1640. would have moved the renewing thereof after the Pacification and no doubt the King and Parliament Anno 1650. before Dumbar would have renewed the same for incouragement in so dangerous a War if it had not been commonly thought that the first Act stood unexpired Murray contra The Earl of Southesk and other Appryzers of the Estate of Powburn Eodem die JAmes Murray having Right to an Appryzing of the Estate of Sir Iames Keith of Powburn led at the instance of Mr. Thomas Lundie pursues thereupon for Mails and Duties Compearance was made for the Earl of Southesk and posterior Apprizers after Year and Day who alleadged that by the Act of Parliament 1661. betwixt Debitor and Creditor It is provided that the Lords of Session at the desire of the Debitors may ordain Appryzers to restrict their Possession to as much as will pay the Annualrent the Debitor Ratifying their Possession and now the Posterior Appryzers having Appryzed omne jus that was in the Debitor craved that the first Appryzer might Restrict himself to his Annualrent and they preferred to the rest of the Duties It was answered that this
the rest of his children or else to pay a Modification for his aliment albeit the Father was indigent seing the Son had no Means or Calling to aliment himself Ianuary 13. 1666. Dick contra Dick. A Father was sound to be lawful Administrator to his Son in his Family not only in his Pupillarity but Minority as curatorâ honorarius not lyable to oââmission or exclusive to other Curators but deeds done without his consent were found null albeit his Son resided not in his Family but followed the Law living still on his Fathers charges and having no Calling or Patrimony to maintain himself neither was his Fathers Subscribing with him found a sufficient authorizing of him seing he subscribed with him as Cautioner for him December 7. 1666. Menzeis contra Fairholme A Father taking a Bond blank in the Creditors Name and filling up his Brothers Name therein and obtaining an Assignation from him to his daughter was not found as a Bond of Provision Revockable by the Father in respect the Bond was Registrate in the Brothers Name November 20. 1667. Executors of Trotter contra Trotter A Father was not found obliged for Annualrent of a Legacy uplifted by him belonging to his Son as being his Tutor of Law the Son being Alimented by the Father and in his Family December 15. 1668. Windrham contra Eleâs A Father granting Bond to a Bairn in satisfaction of her Portion Natural was found thereby to increass the Bairns part of the rest of the Bairns and not to apply that Bairns part to the Heir Executor or universal Legator as they who were obliged for the Bond of Provision comprehending the Bairns part February 17. 1671. Megil contra Viscount of Oxenfoord A FEW containing a clause irritant expreslyâ to be null upon the Failzle was found not to be purged at the Bar where offer of payment was made in which it differs from a Feu not having that clause February 13. 1666. Laird of Wedderburn contra Wardlaw Feus of Ward-lands granted before the Act of Parliament 1666. against Feus was found valide albeit granted by these who held Ward of Subjects without consent of their Superiour Iune 24. 1668. Steuart of Torrence contra Feuers of Ernoch A Feu was found to be Renunceable by a Feuer to free him of the Feu-duty albeit it was constitute by a muâual contract obliging the Feuer and his Heirs to pay the Feu-duty yearly seing by a Back-bond of the same date he was allowed to Renunce when he pleased which was found effectual to take away that personal obligement being extrinsick to the Feu though in the Feudal Contract against a singular Successor in the Feu February 1. 1669. Brown contra Sibbald A FEW-DâVTY was found personally to affect a Liferenter for these years only whereof she lifted the Rent Iuly 19. 1665. Windrham contra the Lady Idingtoun FOREFAVLTVRE of a Paricide as having killed his own Mother being gifted by the King and Infeftment thereon was found to have no effect unless there had been a doom of Forefaulture pronunced by the Iustices but not upon the ordinary course against absents declaring parties Fugitives for not underlying the Law which can only reach their Moveables Iuly 30. 1662. Zeaman contra Oliphant Forefaulture having with it dishabilitation of the Forefault persons Children declaring them incapable of Lands or Estate in Scotland whereby the Sons Estate fell in the Kings hand and was disponed to a donatar who set Tacks and the Son being restored by Sentence of Parliament as an Infant not accessory to the Crime The Infeftment and Tack thereon were found to fall without calling the Persons interressed before the Parliament notwithstanding of the Act 1584. Prohibiting Restitutions by way of Reduction and declaring Rights granted medio tempore by the King to be valide which was not found to extend to dishabilitation of the Children but to the principal Forefalture February 24. 1665. Dowglas and Sinclar her Husband contra the Laird of Wedderburn Here both the dishabilitation and remission thereof proceeded without citation Forefalture and five years possession of the Forefalt person before the Forefalture makes a valide Right notwithstanding of the posterior Act of Parliament for registration of Seasines and Reversions c. Yet interruption within the five years was found to elide the same by Inhibition and granting a new Corroborative Right especially where citation was used immediatly before the five years albeit the corroborative Right was post commissum crimen Iuly 23. 1666. Earl of Southesk contra Marquess of Huntly Forefalture and five years possession was found not Relevant by exception or reply without a reâour by an Inquest Iune 13. 1666. Hume contra Hume Forefalture gives the King or his Donator five years Rent of any Land the Forefalt person was in possession off the time of the Sentence whether by Tack or not Ianuary 24. 1667. Inter eosdem In Forefalture a donatar was found excluded by Appryzing at the instance of the Creditors of the Forefalt person who had comprized before the committing of the Crime and had charged the Superiour after the crime but before the Process of Forefalture Iuly 6. 1667. Creditors of Hume of Kâllo contra Hume The Donatar of Forefalture pursuing Removing was found not to be excluded by an Inâeâtment on an Appryzing granted by the King being then immediate Superiour before the Gift which was not found equivalent to a Confirmation but past in Exchequer of course without notice December 9. 1668. Earl of Argile contra Stirling Forefalture was found to exclude a Creditor founding upon a clause in the disposition made to the Forefalt Person by his Father reserving a power to himself to affect and burden the Lands disponed by Wodset or Annualrent for such a sum though the Father had granted a Bond to the Pursuer declaring the sum to be a part of the Reservation seing there followed no Infeftment by Resignation or Confirmation by the King Iuly 12. 1671. Learmoâth contra Earl of Lauderdail Forefalture Vide Gift Hague contra Moscrop and Rutherfoord FRAVD of Creditors being insisted on to Reduce an additional Ioynture after the debt appryzed on the Liferenter offering access to the Appryzer for his Annualrent and to be totally excluded if it were not Redeemed within the Legal it was Sustained Relevant here the Husband was neither bankrupt nor insolvent but there was no ready execution because of the additional Ioynture February 10. 1669. Lady Greenhead contra Lord Lour Fraud of Creditors upon the Act of Parliament 1621. was not found Relevant by Reply without Reduction though of a disposition by a Father to a Son in a small matter Iune 19. 1663. Red contra Harper Fraud of Creditors was not inferred by a clause in a Contract providing a Ioynture to a Wife with condition of restricking her self to a part that the superplus might belong to the Bairns for their Aliment the whole Ioynture being only proportionable to the condition of the parties November 16. 1665.
Prisoners seing they had actually received this Prisoner but their keeping him in a private house ten dayes while a Treaty was continued with the Creditor was found not to infer disobedience of the charge or payment of the debt Iune 8. 1670. Cheap contra Magistrates of Faulkland Magistrates were not found lyable for the debt of a Rebel escaping who was arrested in their Tolbooth but the arrestment was not formal and whereas it bear that upon Caption the Messenger came to the Tolbooth and commânded the Prisoner to continue in Prison as being arrested for that debt and that in presence of the Iaylour and that intimation was made to the Magistrates seing the intimation to the Magistrates was altogether improven and the arrestment in presence of the Iaylour contained three Witnesses whereof one affirmed and the other denyed and a third was dead and the Messenger was then Excommunicate for Crimes Iune 18. 1670. Hay contra Magistrates of Elgin Magistrates were found lyable for the debt of a Rebel escaping out of their Tolbooth albeit the Tolbooth had âour locked Doors without one another and that the Rebel had gotten in some Masons Tools and broken up all the Doors in the Night seing they had not Chains and Bonds locked upon the ouâer sides of the Doors to which the Rebel could not reacâ albeit their custom was very ancient to put on Cat-bonds only upon Prisoners imprisoned for Crimes February 11. 1671. Will contra Town of Kirkaldââ Magistrates were not found lyable for the debt of a Person Incarcerate in their Tolbooth whom they had suffered to go free up and down their Streets several times whereupon the Creditor took Instruments and Protestation seing the suffering the Prisoner to go out was necessary to mendicat his Bread being altogether indigent and that he went once to the burial of a Child of his own and that he continued in Prison and died there February 14. 1671. Bain contra Baillies of Culross Magistrates were not found lyable for the debt of a Rebel whom they suffered to come out of Prison with a Guard to go to the Kirk or to the Fields for health or any other necessary cause as to time past in regard of their common custome so to do but that in time coming they should let none go out except upon great hazard by sickness and upon Testificates upon Oath and when other application could not saâely and timeously be made to the Council or Session Iune 14. 1671. Town of Breichen contra Town of Dundee MANDAT or Warrand of a Servant taking off Furniture from a Marchand for his Master and giving his Recept and bearing that he had received such Furniture in Name of his Master and for his use was found not to oblige the Seâvant to pay nor yet to instruct that he had warrand but tâe warrand was presumed as known to the Merchant unless it were proven that the Servant did otherwayes imploy the Furnishing than to his Masters use and specially in the case where the Master was dead long ago November 17. 1665. Howâeson contra Cockburn Vide Command Vide Wiâe February 4. 1665. Paterson contra Pringle IN MAILS AND DVTIES the not calling of the Deâenders Master was not âound Relevant as in a Removing nor may the Tennents alleadge peremptorly on their Masters Right which is jus tertiâ but they should have intimate to him to compear for himself and they may yet Suspend on double poynding and call the Party and their Master Iune 10. 1665. Hume contra In the Mails and Duties of a House the damnage sustained by the Tennent by the fall of a Neighbouring house was found to be allowed Ianuary 2. 1667. Hamiltoun contra MAINTAINANCE of August and September 1650. being destinate for the provision of the Army and assigned to these who advanced the provisions they were not found to be excluded by any subsequent quarterings Iuly 27. 1665. Rae contra Heretors of Clackmannan Vide Devastation here singular Successours were not liberate Iuly 28. 1665. Inter eosdem The Maintainance appointed to be uplifted by Bogie by the Act of Parliament 1661. which excepts singular Successors who bought the Lands was found not to extend to an appearand Heir who brooks by an appryzing which as to him is Redeemable within ten years for what he payed for it here it was not alleaged that the payed sums equivalent to the worth February 8. 1668. Weyms contra Laird of Tâlquhon Renewed Ianuary 20. 1669. Inter eosdem The Maintainance 1648. to be upââfted by Bogie was found not to extend to these who had exemption upon consideration of burning by the King and Parliament 1651 though that Parliament was Rescinded and though all exemptions were excluded by Bogies Commission seing by the Act Rescissory private Rights done by that Authority were excepted Iuly 21. 1668. Weyms contra Campbel of Edenample Maintainance for the year 1648. was found to burden Lands though they were now in the âands of singular Successoâs who had acquired the time of the Act Iaâuary 23. 1669. Weyms contra Frazer of Toâlie MARRIAGE pursued by a Donatar was not excluded because the Pursuer instructed not that the Lands held of that Superiour nor held Ward seing he disclaimed not nor by the Superiours Subscâibing Witness in the Vassals Contract of Marriage after the Donatars Gift it was also found that the Marriage might be pursued both Realiter personaliter against the Vassal to pay February 25. 1662. Arbuthnet of Fiddes contra Keith Marriage being decârned by the Commissar to be solemnized upon a Bond granted by a Man to a Woman bearing a Child to be gotten under promise of Marriage and it being alleadged that the Woman had been unchast since which as it would annul so much more hindeâ the Solemnization of the Marriage and it being alleadged that the Child born after was presumed to be the same man's who got the first and so obliged to solemnize the Marriage The Lords found the presumption held not where there was no formal Marriage and so the Woman behoved to prove the second Child to be this mans Ianuary 31. 1665. Barclay contra Baptie Marriage of an Heir was âound due as to the single avail albeit the Heir was Married before his Predecessors death by a fraudulent precipitation to exclude the Superior from the Marriage he being Married when his Predecessor was moribundus without previous Treaty or Proclamation the Predecessor dying within some âew âays and showing no other sufficient cause of the said precipitation but to exclude the Superiour here were adduced the Testimonies of Skeins explications upon Quoniaâ atachiamenta de maritagio bearing that this was praxis forâ in his time and expressing three Decisions thereof February 20. 1667. Lord Thesauâer and Lord Advocat contra Lord Colvââ Marriage vide Contract Vide Clause December 20. 1664. Young contra Buchannan MELIORATION of a Liferenters House by her was âound to oblige the Feear after her death in quantum Itucrâs est by a
the Reasons proposed Neither have I Recorded any Decisions but what was determined while I was present being resolved to take nothing at a second hand These Decisions were Written with many different hands but all of them were then in my Family and some of them understood not the Matter by which and the haste I was forced oftimes to put them to there was much uncorrect but I did expect that I might have been present and have overseen the Press my self I began to cause Transcribe them with a better hand and did consider whether it were not fit to amplifie and embellish the Disputes so as might have been expected from so pregnant and eloquent Pleaders as our time hath afforded who have been nothing short of their Predecessors but I thought that this would look too like a new Frame from my own Fancy or Memory after so long a time and therefore I resolved they should be keept as they were at first Written and if so they prove uniform as it will be a great evidence of your Lordships Justice so it will be a strong proof that they are sincere and authentick having been Written on the several Sederunt dayes for more then twenty years together and therefore I do intâeat the favour that what is uncorrect may be excused and supplied from the Matter I had the best opportunity to make these Observations being scarce a day absent in any of these Sessions wherein I have marked them from the first of Iune 1661. until the first of August 1681. And I was not one day absent from the thirteenth of Ianâary 1671. when it pleased His Majesty to appoint me to be constant President of the Session in place of my Lord Craigmiller who had then demitted except the Summer Session 1679. when I attended His Majesty by His own Command during all which time I hope your Lordships will bear me Witness that I never used Arrogance or Insolence or the least reproachful or bitter expression against any of the number and I do with great thankfulness acknowledge that I could not have expected more kindness and respect than I found from your Lordships which made me in gratitude take this Opportunity to testifie the Honour and Value I have for that honourable Society and that I am in great sincerity LEYDEN October 30. November 9. 1683. My Lords Your Lordships most humble Servant IA DALRYMPLE His Majesties Gift and Priviledge to Sir Iames Dalrymple of Stair for Printing his Institutions the Acts of Sederunt and Decisions of the Lords of Session CHARLES by the grace of God King of Great-Britain France and Ireland Defender of the Faith To all and sundry Our Leidges and Subjects whom it effeirs to whose knowledge these Presents shall come Greeting Forasmuch as Our Trustie and welbeloved Counsellor Sir James Dalrymple of Stair President of Our Session hath Observed and Written the Acts and Decisions of the Lords of Our Session since Our happie Restauration to this time and hath also Written the Institutions of the Law of that Our ancient Kingdom of Scotland And We being well satisfied with his pains and diligence therien and knowing his long experience and knowledge of the Laws and Customs of that Our Kingdom and his constant affection and faithfulness to Vs and being confident of the great benefit may arise to all Our Subjects of that Our ancient Kingdom by publishing of the saids Decisions and Institutions and being willing to give to the said Sir James all encouragement therein Therefore wit ye Vs to have Ratified and Approven Likeas We by thir Our Letters Ratifie and Approve the Contract agreed upon betwixt the said Sir James and Agnes Campbel and Patrick Tailziefer Merchant in Our Burgh of Edinburgh now her Spouse having the Right to and exercing the Office of Our Printer in Our said ancient Kingdom of Scotland for Printing of the saids Books in all the Heads Articles and Clauses therein contained whatsomever Prohibiting all others to Print the saids Books for the space of ninteen years without the special leave of the said Sir James his Heirs and Successors as the said Contract of the date the 26. âf March 1681. yearâ at length contained in the said Gift and Ratification under Our Privie Seal more fully bears Given at Our Court at Whitehall Aprile 11. 1681. years and of Our Raignâ the 33. Year Per Signaturam manu S. D. N. Regis supra scriptam Act of Sederunt Decimo Iunij 1681. THe Lord President did signifie to the Lords that he having these twenty years Observed the remarkable Practiques or Decisions that had past in this Court either upon Debate in presence of the whole Lords or upon Report from the Ordinary in the Outter-house expressing not only the sum of the Debate as it was considered and resumed by the Lords with the Interlocutor But also the Grounds whereupon the Lords proceeded and being of intention to put these Decisions in Print he had acquainted the King therewith and had His Majesties allowance and approbation therein And the saids Lords considering that the Lord President has been at extraordinary pains in Observing and Collecting these Decisions and that the publishing thereof will be of great use and advantage not only to the Colledge of Iustice but to the whole Leidges They approve his Resolution to Print the saids Decisions and did render him hearty Thanks for undertaking this Work tending so much to the publick Good Errata vide after the first Index INDEX Of the Acts of Sederunt ACt for uniformity of Habite amongst the ordinary Lords Iune 5th 1661. Act for continuing Summons and Writing in Latine as formerly 1661. Act anent Wakenings June 11. 1661. Act for retaining the principal Writs presented to the Register and giving forth only Extracts thereof 1661. Act for Protestation Money July 4th 1661. Act for granting Commissions to Debitors who are sick or out of the Countrey on the Act Debitor and Creditor July 31 1661. Act discharging Lessons the last Moneth of the Session November 28. 1661. Act anent Executors Creditors February 28. 1662. Act anent granting of Bonds by apparent Heirs whereupon Apprizings or Adjudications may follow in prejudice of the Defuncts Creditors 1662. Act anent Advocats and Expectants not paying their dues 1662. Act discharging Confusion the last day of the Session February 21. 1663. Act in favours of the Keeper of the Minute-Book June 6. 1663. Act concerning the buying of the Citiedail September 8. 1663. Act anent the Seal of Court November 26. 1663. Act against general Letters June 8. 1665. Act for Keeping the Barâs June 22. 1665. Act anent Proâtutors June 30. 1665. Act Ordering no sight of Process in the Summer Session which were seen in the Winter before November 8. 1665. His Majesties Instructions to the Commissars February 20. 1666. Orders to be observed in Confirmations of all Testaments Ibid. Instructions to the Clerk Ibid. Act against Decreets for not Reproduction of Cessiones bonorum November 6. 1666. His Majesties Letter
had died Infeft in the Annualrent if there had been Bairns of the Marriage they Male and Female joyntly and equally behoved to be Served specially as Heirs of Provision to their Father and so Infeft and failzing Bairns Thomas and Margaret behoved also to be so served and Infeft for albeit there needs no general Service where Persons are nominatim substitute in a personal Right requiring no Infeftment yet where there is Infeftment there must be a special Service And therefore found the Father Feear might uplift the Mony or might change the Destination thereof as he pleased and albeit Thomas and Margaret were Infeft nominatim yet they found the Seasine was without Warrand bearing only to Infeft them in case of failzie of Heirs of the Marriage and the Infeftment could only be granted to the Conjunct-feears Iohn Scot contra Montgomery Eodem die JOhn Scot as Assigney to certain Bonds granted by Montgomery to Andrew Robertson charges Montgomery who Suspends upon this Reason that he instantly instructs by a Back-bond that the Bonds is for the price of certain Lands and by the Back-bond it is provided that these Sums should not be payed till the Writs of the Lands were delivered and payment made of some Duties thereof The Lords found the Back-bond being before the Assingation relevant against the Assigney albeit the Bonds were simple bearing borrowed Money Greenlaw contra ãâ¦ã Ianuary 15. 1663. GReenlaw being pursued by ãâ¦ã for Spuilzie of two Mares in May 1654. alleadged Absolvitor because he was then in Arms for the King and took these Mares for the Service and had warrand from his Officers which he offered him to prove by his Pass and Capitulation produced expressly including him with his Officers who Capitulate The Pursuer answered the Mares were great with Foal and altogether unfit for the Service and if they were specially commanded to be taken it might be instructed by Writ The Lords considering this Capitulation being about that same time found that albeit there had been no Order yet the Defender being then in Arms acting modo militari the Act of Indemnity freed him and would not give occasion to such Process and therefore Assoilzied Tennents of Kilchattan contra Lady Kilchattan Major Campbel and Baillie Hamilton Ianuary 16. 1663. OLd Kilchattan in his Sons Contract of Marriage Dispons the Lands of Kilchattan to his Son young Kilchattan and his Lady in Conjunct-fee whereupon there was Infeftment taken in favours of the Husband and Wife to be holden from the Disponer and of the King but the same was not confirmed till the year 1662. At which time Major Campbel procures a Confirmation of the Conjunct-Infeftment and Seasine thereon which Confirmation hath a Clause insert bearing the same to be only in so far as may confirm and establish the Right of an Annualrent granted by young Kilchattan to the Major and thereafter the Lady Confirms the Conjunct-Infeftment simply In Anno 1654. young Kilchattan Infefts Major Campbel in an Annulrent out of the Lands thereafter Heugh Hamilton Appryzed from young Kilchattan and was Infeft upon this Appryzing about that time It was alleadged by the Lady that she ought to be pre-ferred because she being joyned with her Husband in the Conjunct-Fee and thereupon Infeft it is sufficient to give her the Right of Liferent which is but a personal servitude It was answered first That Major Campbel having procured the first Confirmation which is expresly limit unto his Annualrent must be preferred to the Lady and that such limitations might lawfully be because it being free for the Superiour to Confirm or not or to Confirm a part and not the rest he might Confirm it to what effect he pleased and his Confirmation being extended no further the Lady cannot crave preference because she is now only Infeft in the Lands in question in Warrandice that her principal Lands shall be worth so much and it is not yet declared in what they are defective The Lords in respect the Ladies Right was not Confirmed preferred the Major as to his Annualrents It was alleadged for Heugh Hamiltoun that he must be preferred to the Annualrenter because he being publickly Infeft upon his Apprysing before the Infeftment of Annualrent at least before it was cled with Possession whereby it became a valid Right the King's Charter upon the Apprysing is virtually and equivalently a Confirmation of Kilchattans Infeftment especially in favours of a Creditor who could not perfectly know his Debitors condition which if he had known and given in expresly a Confirmation to the King it would have been accepted seeing the King respects none and therefore the King 's granting of a Charter upon the Apprysing must be interpret equivalent The Lords found that the Charter upon the Apprysing was not equivalent to a Confirmation It was further alleadged for Heugh Hamiltoun that the Confirmation obtained by Major Campbel behoved to accresce to him who had the first compleat Right by publick Infeftment upon the Apprysing and albeit that base Infeftment upon the Annualrent granted by Kilchattan to Major Campbel was prior yet it was null till it was cled with Possession and therefore if it was not cled with Possession before Heugh Hamiltouns Infeftment the Confirmation must accresce to Heugh Hamiltouns Infeftment The Lords found that the base Infeftment was not null for want of Possession albeit it might be excluded by a publick Infeftment before Possession but found that Heugh Hamiltouns publick Infeftment was not compleat in it self because it put Heugh Hamiltoun only in the place of young Kilchattan who had a null Right till Confirmation Which Confirmation they found did accresce to the base Infeftment being cled with Possession at any time before the Confirmation for at that time it became a compleat Right at which time the Appryzing and Infeftment was no compleat Right and therefore the Confirmation albeit it had not had this restriction accresced to the base Infeftment as being the first compleat Right in suo genere Earl of Roxburgh contra a Minister Eodem Die IN a review of a Decreet at the Instance of a Minister against the Earl of Roxburgh the point in question was whether or no the Judges for the time or now the Lords of Session were competent to discuss this Nullity of a Decreet of Locality by the Commission for Plantation in that it called the Earls Lands expresly designed to be his Lands and he was not called The Lords found that albeit they would not decide upon the Nullities of the Decreets of the Commission competent by way of Reduction which behoved to be before the Commission it self yet this Nullity being palpable and competent by Exception or Suspension that they might thereupon Suspend simpliciter the Decreet of the Commission Earl of Errol contra Parochioners of Ury Eodem die THe Earl of Roxburgh pursues the Heretors for the Teind from 1648. till 1662. as he who had Right during that tyme by the Act of Parliament 1649. Establishing
as done without his Warrand And as to the Procuratory expead in the Chancellary Constituting an Acturney to the said Iames Cicile the expeading thereof was without his knowledge or warrand and therefore the Seasine being taken without his Warrant was null and made no Alienation nor Recognition as if any Heretor Disponing Ward-Lands and giving a Precept of Seasing if any third Party should accidentally find or steal away that Precept and take Seasine the same would be found null as without Warrant and would infer no Recognition 2ly Absolvitor because the Disposition to the Defender bears expresly that Dirltoun Dispones failzing Heirs-male of his Body so that it being conditional and the Seasine being actus legittimus qui nec recipit diâm nec conditionem the samine is null for if Diâltoun had an Heir-male of his own Body he would have excluded James Cicile not by way of Reversion or Retrocession there being none such in the Disposition therefore it behoved to be a Suspensive Condition 3ly Absolvitor because though the Seasine had been accepted warrantably yet the Accepter was minor and thereupon Leased and ought to be restored and the Seasine annulled and consequently the Recognition The Pursuer answered to the First non relevat for albeit there had been no Acturney out of the Chancellary the Seasine would have been valid because there needs no other Procuratory for taking of Seasine but only the Precept of Seasine which is an express Mandat of the Disponet and the having thereof in the Acturneys hand is a sufficient evidence of the Warrant or Mandat to be Acturney for the Receiver which proves sufficiently his Warrant neither was there ever any more required to a Seasine in Scotland and if more were required all Seasines would be null it being ordinar to give Seasines to Infants or absents out of the Countrey but the delivery of the Precept by the Disponer to any Person in Name of the Accepter is a sufficient Mandat or Acturney for the Accepter especially here where a Grand-Father gives Infeftment to his Oye he might well give a Warrant to an Acturney for him to accept To the second albeit the Disposition bears failing Heirs-male of the Disponers Body Yet the Precept is directed to give present State and Seasine without delay whereby it is clear that the Disponers meaning was not that this condition should be Suspensive to impede the Infeftment And therefore all it could operate is to have the effect of a resolutive Condition that if any Heir-male should be Supervenient he might upon that condition pursue James Cicile to renunce the Right or to declare it null neither is a Seasine actus legittimus and though it were and were incapable of a day or condition yet that would not annul the Act but annul the condition or day as aditio haereditatis is actus legittimus Yet if any man enter Heir for a time or under condition he is Heir simply and the time and condition is void but not the Entry it self To the Third albeit regulariter Minors Leased may be Restored yet that hath its Exceptions as a Minor being Denunced Rebel and his Escheat fallen or thereafter his Liferent or bearing in Non-entry either simply or through a wrong or informal Infeftment he would never be restored against these Casualities so neither against the taking of Seasine in so far as may infer Recognition 2ly There could be by the Seasine no Lesion at that time Cranburn being then but his Mothers second Son and not alioqui succâssurus to the half of the Estate as now he is neither is ever Lesion interpret by the prejudice of any part of a Deed unless there were Lesion of the whole as if Lands were Disponed to a Minor with the burden of Debts he could not reduce the burden of Debts as to his Lesion unless thereby the whole Disposition were to his Lesion The Lords Repelled these three Defenses Rig of Carberrie contra His Creditors Eodem die THE Creditors of Carberrie having obtained a Decreet against Carberrie and Denunced him thereupon pursues for Annualrent since the Denunciation conform to the Act of Parliament thereanent The Defender alleadged Absolvitor First Because the Horning was manifestly null he being Denunced in the Name of Richard the Usurper after he was out of his pretended Authority 2dlie Because the Decreet being Suspended a fifth or sixth part thereof was taken away 3dlie The Denunciation was not at the Cross of the Regality of Musselburgh where he dwells but at Edinburgh 4lie Before the Dânunciation he had given in a Bill of Suspension whereupon there was a Deliverance given superceeding Execution till the Bill were seen and answered in the mean time these Pursuers getting the Bill to see proceeded to Denunce The Pursuers answered to the first that it was nottour and attested by the Keeper of the Signet that Richard was repute in Scotland to be in his Authority till the 18. of May 1659. till which the Signet was open and many Letters past in his Name and this Denunciation was upon the sixth of May and the Charge in Aprile In respect whereof the Lords Repelled the first Defense They Repelled also the second Defense as to the Annualrent of what was found due by the last Decreet They Repelled the third Defense because the Usurper had cryed down Regalities and found the fourth Defense Relevant scripto vel juramento viz. That there was a Deliverance stopping Execution the time of the Denunciation Rickart contra Eodem die RICKART being Tacks-man of a Room of the Barony of Lowdoun set the same to a Subtennent for paying the Heretors Rent and so much superplus whereupon he Charged the Sub-Tennent who Suspended and alleadged that the Charger had sub-set to him as Tacks-man and was obliged to produce his Tack to him and being Warned by the Heretor he did by way of Instrument require the Chargers Tack if he any had to Defend himself thereby which he refused and the truth is he had no Tack unexpired Whereupon he was necessitate to take a new Tack from the Heretor for the whole Duty he was obliged to pay to the Heretor and Rickart before The Charger answered non Relevat unless as he had been Warned he had also been Removed by a Sentence in which the Charger would have compeared and Defended And albeit he had not compeared the Defender had this Defense competent that he was Tennent to the Chargââ by payment of Male and Duty who had Right by Tack either standing or at least he bruiked per tacitam reloâationem and he not Warned nor Called The Lords found the Reason of Suspension Relevant and that the foresaid Defense of tacit Relocation would not have been Relevant tacit Relocation being only effectual against singular Successors of the natural Possessor The Warning of whom is sufficient to interrupt the same not only as to them who are warned but any other Tacks-man whose Tacks are expired and therefore the
general Declarator it were not competent not being instantly verifyed without Reduction 3ly It were not probable but by Writ before the Denunciation and not by the Creditors Oath or having discharges being in prejudice of the KING but that no hazard might be of ante-dating it was required by Act of Parliament that beside the Writ the Parties should depone upon the truth of the Date The Defender answered to the first all Defenses competent in the general Declarator are reserved in the special To the second there is a Reduction depending The Lords found the Defense relevant only scripto of the Denuncer The Defender further alleadged the Horning was null as being upon a null Decreet and falling therewith in consequence The Lords repelled the Defense and found though the Decreet were null through informality yet the Horning would not be anulled but the Partie was in contempt in not Suspending debito tempore Compearance was also made for Mr. William Lauder who alleadged he had Disposition from the Rebel before year and day run The Lords found this Alleadgeance not relevant unless it were alleadged to be for a just Debt before the Denunciation It was further alleadged for Mr. William that the Pursuer granted Back-bond to the Thesaurer to imploy the Gift by his appointment and he offered to satisfye the Donatars Debt and the whole expense of the Gift The Lords found this not relevant without a second Gift or Declaration from the Thesaurer Thomas Crawfoord contra ãâ¦ã Eodem die THomas Crawfoord as Executor Creditor to Umquhile Robert Inglis Pursues some of his Debitors It was alleadged no Process because Thomas as Factor for Robert Inglis had pursued the same Partie for the same Cause before the Commissaries of Edinburgh wherein Litiscontestation was made and so now it cannot be pursued elsewhere but the Process ought to be transferred and insisted in The Pursuer answered that he pursued then as Factor but now as Executor-Creditor who did not consider what Diligence Defuncts did but might insist therein or not 2dly This being a dilator is not instantly verifyed The Lords found the Defense relevant but would not find it competent unless instantly verifyed and because it behoved to be instructed by an Act Extracted Catharine Frazer contra Heugh Frazer February 11. 1663. THe said Catharine only Child of a second Marriage being provided to eight thousand merk of Portion at her age of 14 years but no oblidgment of Aliment or Annualrent till then pursues her Brother as Heir to her Fathers Estate being of a good condition for Aliment He alleadges he was oblidged for none not being Parent nor his Father oblidged by Contract or Bond for it The Lords found an Aliment due for the Pursuers Mother was not alive and able to Aliment her Lockie contra Patoun February 12. 1663. ELizabeth Lockie Spouse to Doctor Patoun pursues a Reduction of a Disposition granted by her Husband to certain Persons as prejudicial to her Contract in which Contract there was a Clause declaring Execution to pass at the instance of certain Persons who concur with this pursuit The Lords sustained the pursuit though it was not for Implement but for Reduction of a Right impeding the benefit of the Contract without concurse of the Husband seing the Process was against a Deed of the Husbands and he called passive Earl of Southesk and Carnegy contra Bromhall Eodem die BRomhall having taken the Lord Sinclar with Caption Southesk and his Son gave Bond to produce him to the Messengers or to pay the Sum. on the third of February betwixt two and ten whereupon Southesk having reproduced him craved by Supplication his Bond up or to be declared satisfied and extinct The Defender answered First He not being a Member or Dependent on the Colledge of Justice cannot be called thus summarily especially to declare a Bond void which is in effect a Reduction 2dly The Bond was not performed in so far as the Lord Sinclar was not reproduced till the 4th of February The Pursuer answered that the Defender living in Edinburgh and not compearing the Bill per modum quaerelae might be sustained To the second it being modica mora of one day without damnage to the Defender and there being trysting amongst the Parties all the time betwixt it was sufficient The Lords sustained the Petition and found it extinct Relict of George Morison contra His Heirs Eodem die THis Relict pursues for Implement of her Contract It was alleadged she had accepted a Wodset in full satisfaction thereof which now being Redeemed she could crave no more but Re-imploying the Money to her in Liferent The Lords found that this acceptance by the Wife being donatio inter virum uxorem she might now revock it and therefore found the Heir lyable to make up what was in the Contract The Town of Linlithgow contra Unfree-men of Borrowstounness February 13. 1663. THe Town of Linlithgow insisted in their Charge upon a Bond granted by some Inhabitants of Borrowstounness oblidging them to disist and cease from usâing the Merchant Trade under the pain of 500 merk which was Suspended on this Reason that the Bond was extorted by unwarrantable force in so far as the Suspenders were taken in Linlithgow brevi manu and incarcerat till they granted the Bond. The Charger produced a Decreet of the Lords in Anno 1643. against several Inhabitants in Borrowstounness compearand who having Suspended the general Letters upon Act of Parliament for finding Caution to desist c. The Letters were found orderly proceeded and the Town of Linlithgow impowred not only to seize upon the Merchant Goods of the Inhabitants of Borrowstounness if they medled in Merchant Trading but also bearing with power to put the Persons using the saids Merchant Trade in Prison till Justice were done upon them and thereupon alleadge that the Suspenders being incarcerat by vertue and conform to the foresaid Decreet standing there was no unwarrantable Force used 2dly They produced an Act of the Council of Linlithgâw Bearing the Suspenders to have compeared before the Council and to have confessed their wronging of the said Town in the Trade of Merchandize and that there was Horning and Caption against them for the Cause and therefore declared their willingness to grant the Bond in Question The Suspenders answered to the First That albeit the foresaid Decreet bear compearance yet there is no Dispute in it and it is evident to be by Collusion and Surreptitious because this Conclusion now alleadged is ultra petita there being no such thing in the general Letters nor doth the Decreet bear any special Charge given neither is this Conclusion warrantable by any Law or Act of Parliament 2dly This Decreet could be no warrant to Incarcerat the Suspenders because it is given only against some particular Persons then living in Borrowstounness without calling either of the Barron or Baillies of the Burgh of Bârronie and therefore is null as to any other Persons and as to the
the exception of the Act Salvo Jure Scot of Thirlston contra Scot of Braidmeadow Eodem die SCot of Thirlston having right to the Teynd of midshef and pursues the possessor for 24. Years bygone and in time coming who alleadged absolvitor because these Teynds are allocal to the Church coââorâ to a Decreet of locality produced bearing such a Stipend and locatting so much of it and for the restâ that the Minister had the Teynds of midshef It was alleadged that this could not instruct that those whole Teynds were allocal but so much as made up that rest and the Teynd is worth twice as much and therefore the Minister had but the twenty Lamb for the Teynd which is but half Teynd and was lyable to the Pursuer for the rest It was answered that Teynds are secundum consuetudinem loci and if Tyends had never been payed none would be due and if the twenty Lambs was all ever payed they could be lyable for no more The Lords found that before the intenting of the cause they would not allow any more nor then what was accustomed to be payed unless the Pursuer offer him to prove that there was a Tack or use of payment of more which they would allow accordingly Sir William Thomson contra Town of Edinburgh February 14. 1665. THe Magistrats of Edinburgh having deposed Sir William Thomson Town Clerk from his Office on this ground That a Tack of the new Imposition and Excise being set to their Tacks-men which was to have been subscribed by him as Clerk for the Deacons of the Crafts he had given it up to the Tacks-man and had not taken their subscription thereto neither to their own double nor taken another double for the Town albeit the Tack duty was fourscore thousand merks yearly for two years and that it being an uncertain casuality the value of it was most difficult to prove and not but by the Tacks-mens own Oath Sir William raised Reduction on several Reasons especially that the sentence was unjust in so far as it was the puting on of an exorbitant and incommensurable punishment of deprivation from an Office of so great Value upon a Fault of meer negligence or escape and that before the Sentence the Tack-dutie was all payed but four monethes and now all is payed and that Sir William was still willing for to have made up the Towns damnage It was answered that here was no Process to put a punishment commensurable on a Fault but Sir William having by the free Gift of the Town had so profitable a place for his life upon consideration of his Fidelity and Diligence there is implyed in it as effectualy as if exprest that it is ad vitam aut ad culpam so that the cognoscing of the Fault is the termination of the Gift freely given so if their be a fault Justly found by the Town they might well take back their Gift they gave upon that condition implyed for it was not the loss in eventu nor dolus in proposito that made such a Fault else all negligences imaginable would not make it up though a Servant should leave his Masters House and Coffers open if nothing happened to follow yet the Fault was the same and could not be taken away by making up the damnage but here was a Fault of knowledge and importance for Sir Wilâiam could not by meer negligence nor ommission give away the Tack to the Tacks-men and neither see them subscribe their own double or any other nor subscribe himself this Fault was likeas in his Office he had a particular gratuitie as Clerk to the excise The Lords repelled the Reason of Reduction and found the Sentence not to be unjust upon this ground because they thought that Sir William being a common Servant who by his Act of admission had specially engadged never to quarrel the pleasure of the Magistrats they as all Masters have a latitude in cognoscing their Servants Faults wherein though they might have been wished to forbear rigor yet having done it by their power as Masters over their Servants The Lords could not say they had done unjustly but found that the committing such a Fault terminat their free Gift being of knowledge and importance but found that if it could be proven that the Tack was duelie subscribed and lost thereafter which was not of knowledge but of meer omission incident to any Person of the greatest diligence they would not find that a sufficient ground to depose him Bishop of Dumblain contra Earl of Cassils February 15. 1665. THe Bishop of Dumblain pursues the Earls Tennents for the Teynds of the Abbacy of Corâregual as a part of his Patrimony annexed thereto by the Act of Parliament 1617. The Defender alleadged no Process till the Act of Annexation being but an Act unprinted were produced 2ly Absolvitor because the Defender had Tacks from the King in Anno 1641. And by vertue thereof was in possession and could pay no more then the Duties therein contained till they were reduced It was answered to the first it was nottour and if the Defender alleadged any thing in his favour in the Act he might extract it 2ly The Defender could not claim the benefit of his Tack 1641. because the Bishops are restored to all they possessed in Anno 1637. And so not only Right but Possession is restored to them as then which is as sufficient an interruption by publick Law as if it were by Inhibition ot citation Which the Lords found relevant being in recenti after the Act and never acknowledged by the Bishops Boyd of Pinkill contra Tennents of Cairsluth Eodem die PInkill as Donatar to the waird of Cairsluth pursues removing against the Tennents whose Master compears and alleadges that the Gift was to the behove of the Minor his Superiour who as representing his Father and Guidsire was oblidged in absolute warrandice against Wairds per expressum THe Lords considering whether that could be understood of any other Wairds then such as had fallen before the warrandice or if it could extend to all subsequent Wairds of the Superiours Heir and so to non-entries c. which they thought hard seing all holdings were presumed Waird unlesse the contrary appear and the Superiour could not be thought to secure against subsequent Wairds unlesse it were so specially exprest all Wairds past and to come Yet seing it was found formerly that if the Superiour take such a Gift and be bound in warrandice that the same should accresce to the Vassals paying their proportional part of the expense and composition they found the Defense that this Gift was to the behove of the Superiour relevant ad hunc effectum to restrict it to a proportional part of the expense Hellen Hepburn contra Adam Nisbit February 16. 1665. HEllen Hepburn pursues Adam Nisbit to remove from a Tennement in Edinburgh who alleadged absolvitor because he had a Tack standing for Terms to run It was replyed that the Tack bore expresly if two
Heir to the Defunct as his Goodsirs Brothers Oye and having obtained Certification contra non producta there being nothing produced but the Retour Service Brive and Executions but no Warrand of the Service either bearing the Testimony of Witnesses adduced to prove the propinquity of Blood or bearing that the Inquest of proper knowledge knew the same The Pursuer now insists in his Reason of Reduction that the Service is without Warrant and without Probation by Writ or Witnesses It was answered non relevat as it is lybelled bearing only that it is without probation by Writ or Witnesses whereas it might proceed upon the proper knowledge of the Inquest or any two of them The Pursuer answered that neither were there any Probation by Writ or Witnesses nor by the Minuts of Processe bearing that the Persons of Inquest of their proper knowledge did Serve The Lords considering that the Minuts of these Process upon Service for Serving general Heirs which may be before any Judicature use not to be exactly keeped would not instantly Reduce for want of the Warrants but ordained the Persons of Inquest to be produced to condescend whether they proceeded upon proper knowledge and what was the Reason of their knowledge Mc. Gregor contra Menzies Eodem die THere being a question arising betwixt Mc. Gregor and Menzies upon a Decreet Arbitral The Lords found the Decreet Arbitral null proceeding upon a Submission of this Tenor submitting to the Arbiters ay and while they meet at any Day and Place they found convenient with power of Prorogation without any particular Day for giving their Sentence blank or filled up because the Decreet Arbitral was not within a year of the Date of the Submission nor any Prorogation during that time Dam Elizabeth Dowglass and Sir Robert Sinclar of Longformacus contra Laird of Wedderburn Eodem die THe Lady Longformacus as Heir to her Goodsire William Dowglas of Eveling who was Donatar to the Escheat and Liferent of Iohn Stewart of Coldinghame pursues the Laird of Wedderburn for the Teinds of his Lands which Teinds pertained to the Abbots of Coldinghame The Defender alleadged absolvitor because he has Tack to run flowing from the Earl of Hoom who was Infeft in the Lordship of Coldinghameâ and before that was Commendator thereof by His Majesty 2ly Iohn Stewart had ratified all Rights flowing from the Earl of Hoom and consequently this Tack after which the Donatar of his Escheat could not challenge the same for the Ratification is equivalent as if the Tack were granted by the Ratifier The Pursuer answered that the Defense upon the Tack and the Earl of Hooms Right ought to be Repelled because the Earl of Hoomes Right is Reduced by the Parliament 1621. on this consideration that the Earl of Bothwel being Commendator of Coldinghame had demitted the same in his Majesties hands whereupon the said Iohn Stewart his Son was provided by the King Commendator of Coldinghame and thereafter the Earl of Bothwel being Forefault the said Iohn and his other Children were Dishabilitate and declared incapable to bruik and joy his Land and Heritage or to succeed to any Person within this Realm by Sentence of Parliament whereupon the King provided the Earl of Hoom to be Commendator of Coldinghame and thereafter on the Earls own Resignation Infeft him therein in an erected Lordship and thereafter in the Parliament 1621. The King and Estates upon express consideration that Iohn Stewart was an Infant no wayes accessory to his Fathers Crimes did therefore annul his Dishabilitation and Rehabilitate him and declared that he should have Right to the Abbacy of Coldinghame in the same manner as he had before his Dishabilitation and Resciâded all Rights and Infeftments of the said Abbacy granted by His Majesty to any Person of the said Abbacy since the said Dishabilitationâ in so far as the samine might be prejudicial to Iohn Stewart's Provision that he had before After all which Iohn Stewart upon his own Resignation was Infeft in the Property of Coldinghame so that the Earl of Hoom's Right being Reduced in Parliament and falling in consequence with Iohn Stewarts Dâshabilitation whereupon it was founded the Defenders Tack following thereuponâ falls also in Consequence as was already found by the Lords in Anno 1628. betwixt the said William Dowglas of Evelen and the Laird of Wedderburn conform to an Interlocutor Extracted and produced which is sufficient inter easdem partes and cannot be questioned super eisdem deductis now albeit at that time Wedderburn past from his compearance and so the Decreet against him was in absence yet the Interlocutor was ordained to be Extracted against him by the Lords which is sufficient and as for the Ratification of the Tacks granted by the Earl of Hoom the samine was after Iohn Stewart had Resigned his Comendatorship and before he was Infeft in Property The Defender answered First That the said Reduction of the Earl of Hoom's Right was without calling of the Defender or of the Earl of Hoom himselfâ 2ly It mentions no particular Right or any Person but in general all Right and so is but a privat Right impetrat from the Parliament without hearing of Parties and therefore falls under the Act of Parliament salvo jure And as to the former Interlocutor of the Lords The reason why the Lords sustained the said Rescissory Act was because they found themselves not competent to Judge as to Sentences of Parliament or to annul the same upon the not calling of the Parties in respect that the Act salvo 1621. relates to Ratifications but not to such Sentences as this but by Act salvo 1633. It is expresly declared that that Act and all former Acts salvo should not only extend to Ratifications but to all other privat Acts impetrat without hearing of Parties and prejudicial to other Parties Rights and therefore now the Lords ought to proceed upon the Parties Right without consideration of that Act Rescissory 2ly The Act of Parliament Prohibits and annuls all Restitution of Forefaulture by way of Grace in so far as may be prejudicial to these who bona fide acquired Rights from the King medio tempore and so the Rehabilitation of Iohn Stewart cannot prejudge the Earl of Hoom or the Defender who had Right from the Earl It was answered for the Pursuer that there was no difference in the two Acts salvo jure albeit the last was more express then the first containing the same in effect 2ly Iohn Stewart being Dishabilitat by the Parliament without Citation or Crime might justly be Rahabilitate eodem modo without Citation and that not by way of Grace but in Justice as not accessory to the Crimesâ and albeit Forefaultures may not be taken away by way of Reduction by the Act of Parliament 1584. cap. 135. yet that cannot be extended to the Dishabilitation of their Children so that the Parliament doing nothing prejudicial to any Parties Right but restoring Iohn Stewart to his just Right eo
Possession as it was the Defuncts Possession So it did continue to be the true appearand Heirs Possession although none had been Served to this Day and therefore the Service or Infeftment following thereupon cannot take away from the true Heir the presumptive Possession of Law which the true Heir hath 2ly No Prescription can be valid against others But these that know or are at least oblieged to know the Right whereupon it proceeds but the true Heir was not oblieged to know their Service nor was he oblieged to Serve himself but when he pleased especially seing he could get no benefit as long as the Liferenter lived and that he was not oblieged to know the first Service appears because he was not called thereto otherways then by a general Citation at the Mercat Cross to all Parties having Interest which is but a point of meer form and prejudges no body and at least could not prejudge a Stranger living out of the Countrey animo remanendi there being neither special nor general Citation as to Persons out of the Countrey on 60. dayes The Lords found no weight in this last Point seing the Law requires no Citation on 60. dayes in cases of Retoures but only 15. dayes generally at the Mercat Cross which they find every man origine Scotus oblieged to take notice of or to have a Procurator at Edinburgh as in communi patriâ who may search the Register of Retoures whether in the publick Register or Town Books before they prescribe They also found that there was no ground for Prescription upon the first Act of Parliament as bearing only relation to these in the Countrey nor upon the last Act of Parliament as bearing only relation Retoures to be deduced thereafter neither did they sustain the Prescription upon the first part of the general Act of Prescription for they found the Liferenters Possession in the Competition of two Heirs not to be profitable to either of them in prejudice of the other nor yet to be the Possession of singular Successors seing it flowed not from these singular Successors but from the Defunct to whom both Parties pretended to be Heir but the Lords found the posterior clause in the Act of Parliament of all Actions whatsomever to extend to the Reduction of Retoures and to be general as to all Actions that may concern Heirs in prejudice of others And found it so much the rather to extend to Retoures that the next ensuing Act finds Retoures to be Deduced thereafter only to be Reduceable within twenty years and so finds the Reduction thereof to prescrive sooner than other Rights and therefore cannot be thought not to have meaned to reach bygone Retoures by the general Act. Creditors of James Masson Merchant Supplicants Nov. 30. 1665. JAmes Masson Merchant in Edinburgh having unexpectedly broke and fled his Creditors gave in Supplication to the Lords bearing that he had most deceitfully broken having the price of the Goods that he had sold meditatione fugae in his hand and that he either lurked in the Abbay or was to go out of the Countrey and therefore craved a Warrand to Messengers of Arms to secure his Goods and apprehend his Person wherever the same could be found until the matter were heard The Lords having considered the case that the occasion was very extraordinar and also the desire most were of the opinion that the Lords might grant the Desire which was done accordingly with a Recommendation to the Duke of Hamiltoun Keeper of the Kings House not to suffer him to lurk there but to expel him that he might be apprehended For albeit ordinarly the Lords grant not Caption or Warrant of Wairding the Person of the Kings free Leidge till he be Denunced Rebel Yet seing the Magistrates of Burghs and the Admiral grant Acts of Wairding against Parties until they find Caution to answer as Law-will The Lords who had eminently in themselves these Jurisdictions they might do the like in the like case but some thought that was a special priviledge not to be extended and this was of dangerous Example to secure persons unheard more proper for the Council as a case extraordinar then for the Session David Boyd contra Isobel Lauder and Iohn Tailzifer Eodem die DAvid Boyd pursues Iohn Tailzifer as Representing his Father on all the passive Titles and Isobel Lauder his Mother and Tutrix for her Interest and condescends upon his behaving as Heir by uplifting of the Mails and Duties of his Fathers Lands by his said Tutrix It was answered that he being a Pupil his Tutrix Intromission could not infer that passive Title against him as hath been frequently sustained these many years It was answered that was but since the Usurpation but before the Tutors Intromission did alwayes infer this Title and the Pupil could only pursue his Tutor for his damnage The Lords found the Pupil not lyable on this passive Title by his Tutors Intromission The Pursuer then insisted against the Tutrix for paying so far as she had intrometted It was answered that she was but called for her Interest to authorize her Pupil but not to pay neither could she be lyable to pay unless a Decreet had been first Established against the Pupilâ and then it had been Arrested in her hands and pursued to be made forthcoming And yet the Lords found the Tutrix hoc ordine lyable White contra Brown Eodem die JOhn White as having Right from Iames White his Fatheâ Charges Brown for 2000. merks who suspends on this Reason that this Translation being by a Father to a Son in his Family at least having no visible Estate to acquire it The Suspender cannot be prejudged as to the manner of Probation by the Fathers Oath by which he offered him to prove that the Father was Debitor in a greater Sum. It was answered that the Cedents Oath could not be taken in prejudice of the Assigney The Lords found that in this case the Reason was probable by the Cedent Oath Telzifer contra Geddes Decemb. 1. 1665. THe competition between Telzifer and Geddes mentioned the eleventh of November last being this day again called Debated and Reconsidered by the Lords at length The question being that Marjory Sandilands having granted a Bond to Samuel Veatch blank in the Creditors name Samuel filled up Marion Geddes Name therein whereupon she Registrat the Bond and Charged him in the mean time Telzifer as Veatches Creditor having Arrested all Sums in Marjory Sandilands hands adebted by her to Samuel Veatch and pursuing to make the same forthcoming she depones that the time of the Arrestment she was no wayes Debitor to Veatch but by a Bond blank in the Creditors Name and that she did not know whose Name was filled up in it But now Telzifer the Arrester compearing craves to be preferred because he had arrested the Sum as belonging to Samuel Veatch his Debitor before Samuel Veatch was Denuded by filling up Marion Geddes Name and intimating or showing the same to
therefore ordained them to Condescend Archbishop of Glasgow contra Commissar of Glasgow Feb. 14. 1666. THe Archbishop of Glasgow pursues a Declarator or to hear and see it found and Declared that Commissars ought to be persons qualified and able to judge according to Law and that if they be not they might be deprived by the Act 1609. empowering the Bishops then restored to appoint able and sufficient men Commissars in all time coming and by the Act of Restitution 1661. whereby the like power is granted excepting Commissars nominat by the King unless he be insufficient or malversant and subsumes that Mr. William Fleming is not sufficient nor qualified for that Place and also that by the injunctions given to Commissars mentioned in the Act 1609. there is no place for Deputs unless it were by special consent of the Bishops and craves that it may be declared that the said Mr. William may not Serve by a Depute The Pursuer insisted on the first member It was alleadged for the Defender that he had his Place both from the King and Bishop Fairfoul confirming the same with a Novo damus and therefore though he might have been questioned before the said Ratification and new Gift yet now he cannot be questioned upon insufficiency but only on Malversation whereof there is no point alleadged nor condescended on nor is his insufficiency qualified by any Act of inorderly Process or injustice committed by him now these five years and as Bishop Fairfoul who acknowledged him to be a fit and qualified Person by his Ratification could never quarrel him upon insufficiency neither can this Bishop 2ly The Defender has his Place with power of Deputation and therefore having given eight thousand merks to the former Bishop for his Ratification with power of Deputation he cannot be questioned on his sufficiency being able per se aut per deputatum and no Act alleadged of injustice It was answered by the Pursuer to the first Defense that albeit this same Bishop had admitted this Commissar upon hopes of his Qualifications yet if contrair to his expectation it appears he is not qualified for so eminent a Judicature He may justly quarrel him of insufficiency as well as a Minister whom he ordained 2ly Though the same Person might not yet his Successor in Office might and is not bound to acknowledge what his Predecessor did by mistake or otherwayes to the detriment of the Sea which were in his option without a Rule or requiring Qualifications as the naming of Commissars To the Second albeit Deputs were allowable as they are not by the Injunctions yet the principal Commissar who must Regulat and answer for them must also be qualified both by the Act 1609. and the exception 1661. which enervats both the Defenders Gifts The Lords found that Member of the Lybel on the Qualifications and sufficiency Relevant My Lord Ley contra Porteous Feb. 15. 1666. MY Lord Ley having Right by progress to the Reversion of an old Wodset uses an Order and pursues Declarator thereupon The Defender alleadged no Declarator because by the Reversion there is a Tack to be granted to begin after Redemption and to continue for so many years It was answered that Tack was null and invalide not only by Common law as an usurary Paction giving the Wodsetter more then his ordinary Annualrent but by a special Act of Parliament Ia. 2. Par. 1449. cap. 19. whereby such Tacks taken in Wodsets to endure long time after the Redemption for the half mail or near thereby shall not be keeped and as by the late Act of Parliament between Debitor and Creditor it is provided that where old Wodsets were granted before 1650. when annual was at ten for ilk hundreth the Wodsetter may upon offer of Caution for the annualrent take Possession unless the Wodsetter offered himself to be comptable for what exceeds his annualrent It was answered for the Defender that his Defense stands yet Relevant notwithstanding the answer for as to the old Act of Parliament it is in desuetude and it hath been the common custom to grant such Tacks in Reversions which have still been observed and were never quarrelled neither are they usurary seing the Tacksman has the hazard of the Fruits and all burdens so his Tack-Duty how small soever unless it were elusory can be no usurary paction more then taking Lands in a proper Wodset which pay more then the true annualrent which was never found usurary 2ly This Wodset is granted since that old Act whereby the benefit thereof is totally past from As to the new Act the Clause bears expresly that during the none Redemption or none Requisition the conditions therein shall take place which cannot be extended to a Tack to be granted after Redemption It was answered that the first Act bears not only a Regulation of Wodsets already then granted but to be granted bearing expresly who takes or has taken Lands in Wodsets c. and there is nothing in the Wodset to renunce the benefit thereof As for the custom Acts of Parliament are not derogat by custom of privat parties aâquiescing in their agreements But the custom of the Lords by current Decisions As to the last Act it ought to be drawn ad pares casus and the Lands are not effectually Redeemed till the Tack be ended The Lords found the last Act no ground for annulling such Tacks but found the first Act a good ground if it were subsumed according to it that the âands were set for half Mail or thereby Lyon of Muiresk contra Gordon and others Eodem die JOhn Lyon of Muiresk having obtained Decreet of Spuilzie of certain Goods against Gordon and others they suspend and alleadge the Act of Indemnity that they took these Goods being under the Command of the Marquess of Hunlly It was answered that the Charger was in friendship with the Marquels and on his side and so they cannot Cloath themselves with the Act of Indemnity as done upon hostility 2ly The Act Indemnifies only Deeds done by Command and Warrant of any pretended Authority but here no such Order is alleadged It was answered that Orders were not given in Writ and if none get the benefit of the Indemnity but these can shewâ or prove Orders few or none will enjoy it nor need the Suspenders to Dispute whose side the Charger was on seing they acted by Order The Lords found that it was sufficient to alleadge that the Charger was the time of the Intromission actually in Arms and acted it with a Party being then in Arms but needed not prove their Order or the application of the Goods to publick use but found it Relevant if it were offered to be proven by the Suspenders Oath that they had no Warrant or Order or pro ut de jure that they applyed them to their own privat use not for any publick use Iames Borthwick contra Ianet Skeen Feb. 16. 1666. JAmes Borthwick having obtained Reduction of Ianet Skeens Liferent-right as a
old Act of Parliament Iames 2. bearing that whosoever should compone with a Thief for stollen Goods should be lyable in Theft-boot and punishable as the Thief or Robber He raises Advocation on this Reason that the Act was in desuetude and the matter was of great moment and intricacy what Deeds should be compted Theft-boot whereinto no inferiour Judge ought to decide because of the intricacy It was answered that the Lords were not Competent Judges in Crimes and therefore could not Advocat Criminal Causes from inferiour Courts and the Earl of Murray being Sheriff and having sufficient Deputs both should concur in the careful Decyding of the Cause It was answered that albeit the Lords did not Judge Crimes yet it was competent to them to Advocat Criminal Causes ad hunc effectum to remit them to other more competent unsuspect Judges The Lords Advocat the Cause from the Sheriff and Remitted the same to the Iusticeâ because of the antiquity of the Statute and intricacy of the Case Lockhart contra Lord Bargany Feb. 22. 1666. THe umquhil Lord Bargany being adebted in a sum of Money to Sir William Dick he appryzed but no Infeftment nor Charge followed Thereafter a Creditor of umquhil Sir William Dicks appryzes but before the appryzing Lockhart upon a Debt due by Sir William Dick arrests all sums in my Lord Bargany's hand and pursues to make forth-coming This Lord Bargany takes a Right from the appryzer for whom it was alleadged that he ought to be preferred to the Arrester because the arrestment was not habilis moduâ in so far as Sir William Dick having apprized for the sum in question the apprizing is a judicial Disposition in satisfaction of the sum and so it could not be arrested unless it had been moveable by a Requisition or Charge It was answered that the Act of Parliament Declaring Arrestment to be valid upon sums whereon Infeftment did not actually follow made the Arrestment habile and the Apprizing can be in no better case then an heretable Bond Disponing an annualrent It was answered that the Act of Parliament was only in the case of Bonds whereupon no Infeftment followed but cannot be extended beyond that case either to a Wodset granted for the sum where the Property is Disponed where no Infeftment had followed or to an Apprizing which is a judicial Wodset pignus pretorium It was answered that the Reason of the Law was alike in both cases to abbrige the Lieges unnecessar Expences by apprizing The Lords preferred the Apprizer Bishop of Glasgow contra Commissar of Glasgow Eodem die THe Bishop of Glasgow insisted in his Declarator against the Commissar of Glasgow and alleadged first that by injunctions related to in the Act of Restitution 1609. It was provided that all Commissars should Reside at the place where the Commissariot Sat and should not be absent but upon necessity and with leave of the Bishop under the pain of Deposition and that in case of the absence of the Commissar through sickness or other necessity or through being declined in these Causes the Bishop should name a Deput From whence it was alleadged first That the Commissar had already Transgressed the Injunctions and deserved Deposition for none Residence and for appointing Deputs himself not appointed by the Bishop yea for continuing to make use of these Deputs albeit the Bishop did intimat the Injunctions to him and did Judicially require the Deput not to sit and took Instruments thereupon 2ly That in time coming it ought to be Deâlared that the Commissar ought to Reside under the pain of Deprivation and to Act by no Deput but such as were authorized by the Bishop It was alleadged for the Defender Absolvitor from this Member of the Declarator because the Defender had his Office from the King and the late Bishop of Glasgow with power of Deputation And as to the Injunctions first They had no authority of Law for albeit the Act of Parliament 1609. related to Injunctions to be made yet it did not authorise any Persons to make the same nor is it constant that these are the Injunctions that is alleadged to be made by the Bishops in anno 1610. 2ly Albeit they had been then so made they are in deâuetude because ever since all Commissars have enjoyed their place with power of Deputation and exercised the same accordingly 3ly There is no Injunction against the Bishops giving power to the Commissars to Deput for albeit the Injunctions bear that in such cases he could not give Deputation and therefore the Commissar did not wrong to continue his Deput And it is most necssar that the Commissar should have a Power of Deputation or otherwise their Office is elusory seing the Bishop may be absent or refuse to Depute any Person in case of the Commissars necessary absence and so both delay Justice to the Leidges and Evacuat the Gift It was answered for the Pursuer that first the Injunctions were commonly received and known through all the Kingdom and are Registrat in the Commissars Books of Edinburgh being the Supream Commissariot and according thereto the Lords have decided in Advocations and Reductions and albeit they have not been observed seing there is no contrair Decision they cannot go in desuetude by meer none observance 2ly That the Injunctions do import that no Deputation can be granted by Commissars but only by the Bishops in casibus expressis It is clear from the foresaid two Injunctions for to what effect should the Commissars Residence be required if he might at his pleasure act by Deputs and why were these cases exprest if Deputation were competent in all Cases 3ly Albeit the power of Deputation granted by Bishop Fairfowl be sufficient during his life and seclude him from quarrelling the same personali objectione yet that Exception is not competent against this Arch-bishop 4ly The Injunctions being sent up to the King His Majesty has Signed and Approven the same which therefore Revived them and for the inconveniency upon the Bishops absence or refusal is not to be supposed but that the Bishops concerned in the Commissariots would provide remeid in such Cases The Defender answered that Acts of Parliament were not drawn ad pares casus consequentias much less their Injunctions and though they were now Revived yet that cannot be drawn back to the power of Deputation granted before Neither can this Bishop be in better condition then his Prececessor or quarrel his Predecessors Deed which he had power to do The Defender did also resume the Defense as to sufficiency and tryal that seing he had power of Deputation he was not lyable to Tryal nor to Reside if his Deput were sufficient The Lords found that albeit the power of Deputation should absolutely stand yet the principal Commissar behoved to be be sufficient and ordinarly Resident seing his sufficiency was both requisit by the Act of Restitution 1609. and by Exception in the Act of Restitution 1661. and that he ought to direct and
Person Substitute his whole Debt but quoad valorem of what the Substitute had obtained by the Substitution And therefore found the Sums to belong to Andrew as Heir Substitute and yet with the Burden of the Compensation in the same Case as was Competent against Malcolm himself By which Decision it follows that the Mothers Substitution to Malcolm was Effectual for which there is no reason but the Error was in the first Concoction for this Sum should have been found a pure Donation by the Mother not only in respect of her Liferent reserved which she past from but in respect of the Substitution which she could not pass from being jus tertij Earl of Kinghorn contra Laird of Udney Eodem die THe umquhil Earl of Kinghorn having granted a Wodset to the umLaird of Vdney he by his Missiveâ acknowledged the Sums to be satisfied and obliged him to grant a Renunciation whereupon the Earl of Kinghorn pursues this Vdney as representing his Father to grant Renunciation and Procuratory of Resignation and condescended upon the passive Titles thus that umquhil Vdney after the Receipt of the Sums contained in the Wodset had Infeft the Defender in the Estate of Vdney reserving to himself a power to alienat and Dispone after which Infeftment this Missive is subscribed acknowledging the Receipt of the Sums of before and thereupon alleadged first That the Father was oblieged by the Contract of Wodset upon payment of the Sums to Renunce and Resign in prejudice of which Obliegements he had Disponed his Estate to the Defender who was alioqui successurus and so as lucrative Successor is oblieged to grant the Resignation 2ly The Letter obliging the Father to grant Resignation albeit it be after the Infeftment yet seing there is a power reserved to the Father to Dispone his Obligement must oblige the Son It was answered that there was nothing before the Defenders Infeftment to instruct payment the Letter being after and no Obligement therein could burden him thereafter unless his Father had Disponed or had given a Security out of the Estate conform to the Reservation The Lords found this passive Title new and extraordinary therefore moved to the Pursuer to alter this Libel and Libel therein a Declarator of Redemption and to conclude the same either with a Reduction or Declarator for declaring that the Wodset Right being acknowledged by the Wodsetter to be satisfied might be declared Extinct in which case there needed no Resignation or otherwise might conclude the Defender to grant Resignation and the Defender thereupon Renuncing to be Heir the Pursuer might adjudge and thereupon be Infeft But others thought that hardly could a Right be adjudged which was satisfied and extinct The Lords referred to the Pursuers choise vvhich of the vvayes he thought fit Iean Cuningham contra Laird of Robertland Iuly 4. 1666. JEan Cuningham as Donatrix to the Escheat of umquhil Sir David Cuningham of Robertland pursued general Declarator against his Son who alleadged Absolvitor because the Horning was null seing the Charge and Denunciation was only at the Mercat Cross of Edinburgh whereas by the Act of Parliament 1597. c. 294. all Hornings Execute against Persons within the Realm dwelling within Bailleries or Stewartries should be Execute at the head Burgh thereof Ita est umquhil Robertland had his Dwelling-house at Robertland within the Baillerie of Cuningham albeit for a time he was out of the Countrey and was a Prisoner of War for the King The Lords Repelled the Defense and sustained the Horning and found that the Act of Parliament met it not seing neither the Person Denunced was within the Realm nor dwelt within the Baillerie at that time but had remained several years in England Hallyburton contra Hallyburton Eodem die HALLYBURTON pursues a Reduction of an Infeftment granted by by his Father upon his Death-bed to his Sisters who alleadged absolvitor because he had consented to the Disposition in so far as he had Subscribed Witness thereto and if need beis offered to prove that he had read the same It was answered non relevat because the Subscribing as Witness relates only to the verity of the Parties Subscription and nothing to the matter therein contained so that whether the same was Read or not it can import no Probation The Lords found the Defense Relevant reserving to themselves to consider what the naked Subscription without the Reading of the Writ should work in case the Reading thereof were not proven Earl of Hume contra His Wodsetters July 5. 1666. THE Earl of Hume pursues certain Wodsetters to Compt and Reckon for the Superplus more then their Annualrents conform to the late Act between Debitor and Creditor Who alleadged first Absolvitor because the Reversion produced is null not being Registrat conform to the Act of Parliament 1555. c. 29. Ordaining all Reversions to be Sealed and Subscribed by the Parties own hand or a Notar which shall make no Faith if it be not Registrat It was answered that that Act of Parliament was in desuetude not only upon the Point of not Registration but want of Seasine otherwise the Act of Parliament 1617. Anent the Registration of Seasines had dot been necessar The Lords Repelled the Defense and found the said old Act of Parliament to be in desuetude One of the Defenders further alleadged that the Rights of these Reversions are prescribed because they were not pursued within the 13 years appointed by the Par. 1617. c. 12. It was answered that the Pursuer or his Predecessor were Minors during the space of 4 or 5 years of the said 13 prescriptio non curit contra minorem It was answered for the Defenders that in this part of the Act there is no exception of Minors albeit in the former part of the Act anent the 40 years Minority be expresly excepted exceptio firmat regulam in casibus non exceptis especially seing Reversions being but pacta de retro vendendo and so Bonds were prescribed by the old Act of Parliament so the addition of 13 years was ex mera gratia and ought to be strictly interpret The Lords did also Repel this Defense and found that the 13 years run not against Minors It was further alleadged for one of the Defenders that the Reversion made use of against him was since the Act of Parliament 1617. and not Registrat and so could not operat against him who is singular Successor to the Granter thereof The Pursuer Replyed that before the Defenders Right he had used an Order of Redemption and had Execute a Summons of Declarator whereby res fuit litigiosa and no Right granted thereafter can prejudge the Pursuer The Lords found the Reply Relevant to elide the Defense Laurence Scot contra The Heirs of Line of Auchinleck Eodem die LAurence Scot pursues the Daughters of umquhil David Boswel of Auchinleck and the Lord Cathcart and the Lairds of Adamton and Sornbeg for a thousand merks adebted by him to the Defunct The Defenders
offered to Renunce The Pursuer Replyed they could not Renunce because they had behaved themselves as Heirs in so far as by agreement betwixt them and the Heir-male they had Renunced their Interest of the Heretage in his favours and had gotten sums of money therefore It was answered non relevat unless they had so Renunced as to prejudge the Creditors or to Assign Dispone or Discharge any thing they might succeed to but if they only got Sums of Money from the Heir-male in way of gratuity for their kindliness to the Estate and to grant a Renunciation voluntarly as Law would compel them it would not make them lyable and the truth is that by the Defuncts Contract of Marriage the Estate is provided only to the Heirs-male and only 10000 merks to the Daughters Likeas the Defunct Disponed the Estate to his Brothers Son who adjudged both upon the Clause of the Contract and Disposition and the Defenders Renunced to him as a Creditor in common form The Lords found that the geting of Sums of Money for such a Renunciation by which the Creditors were not prejudged did not infer behaving as Heir Collin Hay contra Magistrats of Elgin Eodem die COllin Hay insists in his pursuit against the Magistrats of Elgin for payment of a Debt due to him by a Debitor who escaped out of their Prison It was alleadged by the Defenders that the Prisoner escapt vimajori without their fault in so far as on a Sabbath when the People were all at Preaching the Officer Keeper of the Prison opening the Door a Woman did cast a Plaid over the Officers head and pull'd him at unawars to the ground in the mean time the Rebel escap't whom the Officer followed and was wounded by several persons whom he had lying darn't in the Town to assist him The Lords found the Condescendence not Relevant and that the Magistrats should have had their Tolbooth better Secured then the same could be forc'd by one Woman for there was no other alleadged present before the Prisoner got out neither was it a competent time to open the Tolbooth upon the Sabbath when the People could not concur in case of Force Parson of Morum contra Laird of Beirford and Beinstoun Iuly 6. 1666. THe Parson of Morum pursues Reduction of a Tack set by the former Parson to Beirford and Beinstoun as being granted without consent of the Patron The Defenders alleadged absolvitor because the Tacks were set by the Parson who had Commission from the Earl of Buckcleugh Patron to Set Tacks 2ly The Tacks were Set with consent of Francis Steuart Lord Bothwel expresly as Patron which Francis Steuart had Right to the Patronage in so far as this Patronage with the rest of the Estate of Bathwel being Forefault the Earls of Buckcleugh and Roxburgh got Gifts thereof but by the Kings Decreet Arbitral betwixt Francis Steuart and them Buckcleugh was ordained to denude himself of this Patronage and others in favours of this Francis The Pursuer answered first That no Commission granted by the Patron to the Parson himself could be sufficient because the intent of the Act of Parliament requiring the consent of Patrons was not for any advantage or Interest of the Patron to his own behove but to the behove of the Benefice that the Incumbent might meliorat the same and so the Patron was by his Right of Patronage as Curator Ecclesiae but Curators cannot authorize their Minors by Commission at least the Patron cannot give commission to the Beneficed Parson himself no more then he could Renunce the benefit of the Act of Parliament and leave the Parson to himself 2. Before the Tack was Set the Earl of Buckcleugh Granter of the Commission was dead morte mandatoris perimitur mandatum As for Francis Steuarts consent he was not Patron not being Infeft but the Kings Decreet Arbitral imported only a Personal obligement for Buckcleugh to denude so that if Buckcleugh thereafter should have consented to another Tack that would have been preferred The Lords found that Member of the Alleadgence of Buckcleughs being dead before the Tack not Relevant to annul the same as depending on his Commission but decided not the first Point whether Commission could be granted by the Patron to the Parson himself but found the last Member Relevant to defend the Tack for the Right of Patronage being jus incorporale might be Transmitted by Disposition without Infeftment and albeit Buckcleugh was not formerly denuded even by Disposition so that if he had consented to another Right that as more formal would have been preferred yet there being no competition the Parson cannot quarrel the want of the Patrons consent upon that ground Isobel Tosh contra David Crookshank Eodem die ISobel Tosh pursuing Reduction of a Decreet pronunced in foro contradictorio and in presentia on this ground that it was Extracted by the Clerks unwarrantably contrair to what was done by the Lords which they offered to prove by the Oaths of the Advocats on the other side It was answered this were a ground to Reduce all the Lords Decreets in foro Yet the Lords sustained the reason to be proven as said is Corbet contra Sterling Eodem die COrbet of Concorse pursues a Spuilzie of certain Goods out of his House at Glasgow against William Stirling who alleadged Absolvitor because he had lawfully poinded them from his Debitor in whose Possession they were The Pursuer answered that he offered him to prove that he had Disposition of these Goods from that Partie from whom the Defender alleadged to have poinded them and an Instrument of Possession thereupon and that he had payed Mail for the House where they were several years and still when he came to Glasgow he did Reside in the House and made use of the Goods The Defender answered that his Defense did yet stand Relevant because the Condescendence makes it appear that the Pursuers Right was from the Defenders Debitor and any Possession he alleadges might be simulat and the Defender in Fortification of his Legal Execution offered him to prove that his Debitor remained in the natural Possession of the House and made use of the Goods as his own Goods and so was in natural Possession thereof whereby he might lawfully poynd from him The Pursuer Repeated his Reply and further alleadged that one of the Baillies of Glasgow alleadged that they were his Goods at the time of the poinding and offered his Oath The Defender answered that that Baillie was neither the Pursuers Servant neither had Commission The Lords found the Defense for the Poynder Relevant and more pregnant then the condescenders alleadgence and Repelled that Member of the Duply anent the Baillies offering of his Oath Cranstoun contra Wilkison Iuly 10. 1666. IN a Pursuit betwixt Cranstoun and Wilkison The Defender being conveened as Heir to his Father who was Vitious Intrometter with the Pursuers Debitors Goods and Geir The Lords having of their own proper motion taken this passive
Pursuer after the Crime and he having pursued Argyl for compt and reckoning in anno 1655. does not constitute any new voluntarâ Right nor can it be any way collusive being for an anterior cause and after a pursuit and therefore it must work this much to show that the 5 years was interrupted and in the Course thereof both the Pursuer and Forefaulted Person acknowledged this Right in question The Lords found the Reply relevant upon the Deeds of Interruption alleadged by the Pursuer joyntly to elid the Act of Parliament Mr. Iohn Harper contra his Vassall Iuly 25. 1666. MR. Iohn Harper pursues a Declarator of Non-entry against his Vassall who alleadged that he was only lyable for theretour Maills till the Decreet of general Declarator was obtained It was answered the common custome was that from the Citation in the general Declarator Mails and Duties were due in the special because the general Declarator declares the Non-entry since the date of the Summons and so the Mails and Duties are not due from the date of obtaining the Decreet but from the years decerned therein which is from the date of the Summons The Lords found the Mails and Duties due since the time of the Citation and not only since the time of the Sentence Earl of Southesk contra Marquess of Huntly Iuly last 1666. EArl of Southesks cause mentioned 23 Iuly last was this day advised as to another Defense viz. That my Lord Argyl had right to Beatouns Appryzing of the Estate of Huntly which was long anterior to the Pursuers Infeftment and whereunto Huntly hath right as Donatar to Argyl's Forefaulture This Coutract of the Cumulative Wodset being granted in Anno 1656. It was answered that Beatoun before he was Infeft upon that Appryzing had renunced all benefit of the Appryzing and discharged the same in so far as it might be prejudicial to the Pursuers Right which is presently instructed It was answered that Renunciation was but personal and was never Registrat and so could not be effectuall against any singular Successor much less against the Kings Donatar having a real Right It was answered that Appryzings are not of the nature of other real Rights but they may be taken away by Intromission Payment or Discharge of the Appryzer and there needs no Resignation nor Infeftment It was answered that albeit by the Act of Parliament 1621. Appryzings may be taken away by Intromission and that it hath been extended to payment yet never to such personal Back-Bonds The Lords found the Appryzing to be taken away by Beatons Back Bond renuncing the same in so far as concerns this Pursuer and found the same relevant against the Donatar Thomas Crawfoord contra Town of Edinburgh Eodem die THomas Crawfoord having Gift of ultimus haeres of a person to whom the Town of Edinburgh was Debitor pursues for payment thereof The Defender alleadged no Process till the Gift were declared The Pursuer answered no necessity of a Declarator in this case more then in a Gift of Recognition and Waird and that there was no person that could be particularly cited The Lords found the Defense relevant that this Gift behoved to âe declared albeit it were but upon a Citation generally against all and sundry at the Mercat Cross. Sir Lodovick Gordon contra Sir Iohn Keith Eodem die SIr Lodovick Gordon being Assigned to a Sum due to Sir Robert Farquhar by Sir Iohn Keith pursues Sir John for payment who alleadged absolvitor because he had Right to the Sum himself as Donatar to Sir Roberts Escheat and that the Sum was Moveable albeit it bare Annualrent in so far as the Term of payment was not come It was answered that Sums were Heretable as to the Fisk by the Clause of Annualrent and the only exception was that if the Term of payment of the Annualrent was not come the Same was Moveable and nothing in relation to the Term of payment if the Annualrent was come due before the Rebellion The Lords found that the coming of the Term of payment of the Annualrents made the Sum to become heretable as to the Fisk and therefore repelled the Donatars defense Merchants in Dundee contra Spruce Englishman November 3. 1666. SOme Merchants of Dundee having sold a considerable quantity of Winesto one Spruce an Englishman they pursue him for the price and because he disappeared and no body came to receive the Wines they supplicat the Lords that they would give warrand to them to sell the Wines least they should perish and to be lyable only for the best price they could get for them they did also represent that Spruce had a Factor in Edinburgh who being cited by a Macer did not appear The Lords refused the Supplication and found that the day of the appearance of the Summons not being come and the Englishman neither being present nor oblidged to be present they could do nothing against him more then if he had not be in cited and so could not sequestrat nor appoint the Wines to be sold but they lowed the Partie to protest that they had done all diligenceâ that the Wines might not perish whereof the Lords would take consideration in any Process that should occure Thomas Canham contra Iames Adamson November 7. 1666. JAmes Adamson having disponed a Tenement to Ioseph Iohnstoun who married his Daughter in Conjunct-fee and the Heirs betwixt them which failzing to devide between their other Heirs in the Disposition there was expresly this Clause providing that the said Joseph and his foresaids make payment to the said James Adamson or any he shall name the Sum of six hundred pounds wherein if he failzie the said Right and Disposition shall expire ipso facto In the Infeftment the former Clause was repeated but not the Clause Irritant This Canham appryses the Land from Joseph Johnstoun upon Joseph's debt and being Infeft did pursue James Adamson for removing who objecting the proviso was notwithstanding decerned to remove Now he pursues for the Maills and Duties during his occupation James Adamson alleadges that he ought to have the 600 lib. because he had disponed with that provision It was answered this was but personal to pay and could never oblidge a singular Successor and all the Pursuer could do was to proceed upon the Clause irritant by way of Declarator The Lords in the end of the last Session having only seen the Disposition containing the said Clause but not the Infeftment repelled the Defense but reserved the Declarator but now having seen that the proviso of payment was in the Infeftment the cause being so favourable a person disponing to his own Daughter and good Son and the Disponer yet in possession they did without multiplying furder Process sustaine it by exception George Shein contra James Chrystie November 15. 1666. GEorge Shein having pursued umquhil David Chrystie as charged to enter Heir to James Chrystie his Father for payment of a Debt of his Fathers David renunces to be Heir whereupon George
Dispute whether his Fathers Authors were Infeft or whether his Father had disponed or not until his Majority that he might seek out his Evidences and defend himself Reid contra Ianu. 19. 1667. IN a Process betwixt Reid and whereof the Title was a Service of the Pursuer as Heir deduced before the Bailzie of Regality of Spenzie It was alleadged by the Defender that this Title was not sufficient seing the Service was not retoured It was answered that the Service being within the Regality and of a Person dwelling there neither needed nor used to be Retoured in respect the Service it self was in Record in the Bailzies Books It was answered that albeit a special Service of Lands within the Regality needed not be Retoured in the Kings Chancellary because there was no Precept thence to issue but the Service within the Regality was sufficient that thereupon the Precepts of the Lord of the Regality might proceed against the Superiour within the Regality who was Infeft but in a general Service which may be before any Judge whether the Heir Reside in his Jurisdiction or not there is no difference betwixt a Regality and any other Court but all must be Retoured in the Chancellary It was answered that the Regality having their own Chapel and Chancellary were not oblieged to Retour it in the Kings Chancellary Which the Lords found Relevant and sustained the Service Isobel Findlason contra Lord Cowper Ianu. 22. 1667. ELphingstoun of Selmes having given a Precept to Isobel Findlason and direct to the Lord Cowper that he should pay to the said Isobel a Sum owing by Selmes to her and receive Selmes Bond from her upon the foot of which Precept the Lord Cowper directs another Precept to Iames Gilmore to pay the said sum the VVoman not being payed pursues both the Lord Cowper and Iames Gilmore for payment It was alleadged for Iames Gilmore absolvitor because he had not accepted the Precept neither was there any ground alleadged for which he was oblieged to accept or pay the Lord Cowpers Precept Which the Lords found Relevant It was alleadged for the Lord Cowper that the giving of the Precept should not obliege him seing it mentioned not value received or any other Cause and therefore resolved into a meer desire It was answered that the giving of the Precept was an acceptance of Selmes Precept and behoved at least to import a Donation to be made effectual by the Drawer of the Precept or otherwise an Intercession or Expromission for Selmes The Lords sustained the Process and found the Lord Cowper lyable by the Precept to pay in case of none acceptance especially seing it was consequent to Selmes Precept direct to Cowper Mr. Iohn Mair contra Steuart of Shambelly Eodem die MR. Iohn Mair Minister of Traquair having obtained Decreet against Shambellie and the Parochioners to pay him 545. merks Expended for Reparation of the Manse and to meet and Stent themselves for that Effect upon which Decreet he took Shambellie with Caption whereupon he gave him a Bond of fourscore pounds for his part Shambellie now Suspends the Bond on this Reason that albeit it bear borrowed Money he offers to prove by the Chargers Oath that it was granted for his part of that Stent and that his proportion thereof casting the Sum according to the Valuation of the Paroch would not exceed fourty merks and that he granted this Bond for fear of Imprisonment It was answered the Reason was not Relevant to take away the Suspenders Bond being major sciens prudens and there was here no justus metus because the Caption was a lawful Diligence so that the giving of the Bond was a Transaction of the Parties which is a strong Obligation It was answered that the Suspender when he was taken at his House was sick and unable to travel yet the Messenger would carry him away and being at the Tolbooth gave the Bond rather than in that Case to go to Prison which was an irregular force and a just cause of fear but this addition was not proponed peremptory The Lords Repelled the Reason of suspension unless the said addition were also instructed instanter otherways it could only be reserved by Reduction ex metus causa Sir Henry Hoom. contra Tennents of Kello and Sir Alexander Hoom. Janu. 24. 1667. SIR Henry Hoom having Appryzed the Lands of Kello from Henry and Iohn Hooms and being Infeft pursues the Tennents for Mails and Duties Compearance is made for Sir Alexander Hoom Donatar to the Forefaultor of the said Iohn Hoom of Kello who alleadged that the Forefault Person the time of the Doom of Forefaultor was in Possession of the Lands in question in whose place the Donatar now succeeds and by the Act of Parliament 1584. It is Statuted that where the forefault Person was in Possession the time of the Forefaulture albeit not by the space of five years which would Constitute a Right to him that the Donatar must be put in Possession and continue five years in Possession that in the mean time he may search and seek after the Rebels Rights It was answered First That this part of the Statute is only in case the Rebel had Tacks or Temporary Rights which neither is nor can be alleadged in this Case Secondly The five years Possession must be reckoned from the Doom of Forefaulture after which the Kings Officers or Donatar might have attained Possession and if they did not their neglect cannot prejudge others Ita est there are five years since the Forefaulture and the Rents are Extant being sequestred It was answered that the Act Expresses not only in Case of Tacks but also in Possession and that the five years must be after the Possession began and not the Forefaulture The Lords found the alleadgance Relevant that the Rebel was in Possession and preferred the Donatar to the five years Rent after the date of the Forefaulture It was further alleadged that the Pursuers Right being but an Appryzing the Donatar would instantly satisfie the same at the Bar. It was answered non Relevat to retain by way of Exception but the Donatar behoved to use an Order and pursue a Declarator It was answered that in Appryzings an Order upon 24 hours Requisition was sufficient there being no further Solemnity required then that the Appryzer might come to receive his Money The Lords found that the Appryzing might be summarly satisfied hoc ordine Earl of Argile contra George Campbel Eodem die THE Earl of Argile pursues George Campbel to remove from certrin Lands who alleadged absolvitor because the Warning was null not being used at the right Paroch Kirk where Divine Service at that time was accustomed It was answered non Relevat unless it were alleadged that the other Kirk were Erected by Parliament or Commission thereof and that thereby the Old Paroch was supprest and divided 2ly Though that were alleadged it ought to be Repelled because it is offered to be proven that all VVarnings and Inhibitions
is here nothing but the very instancing of the Practiques without deducing the Case dispute and Reason of Decision neither can Skâens conclusion take place in all the largeness he sets it down or else there shall need no more to infer a Marriage but that the Vassal was in lecto egritudinis albeit he had so continued of a Lent Disease above a year nothing should Capacitat him to Marry his Heir although he used all the Solemnities of Treaty Contract and Proclamation so that the Law de lecto âgritudinis which is only introduced in favours of Heirs that their Predecessors shall not prejudge them shall now be made use of against the Heir that his Predecessor can do nothing to his benefite on Death-bed The Pursuer answered that the feudal Contract being of its own Nature Gratuitous and most favourable on the Part of the Superior that which he hath for his Fee being ordinarly the Service of the Vassal and the profit of the Fee when the Vassal is unserviceable through Minority reserving the Vassals own Aliment and the profit of the Vassals Tocher the Vassal ought not to defraud or prejudge him therein And albeit custom hath introduced an exception that the Tocher is not due to the Superior which was gotten during the Predecessors Life it being ordinarly consumed and applyed to the Predecessors use yet that by precipitation the appearand Heir should enjoy the same and not the Superior is against the Gratitude Amity and Obliegement of the Vassal neither is there any Parity in the Case of a Resignation to which the Superior consents or in the Case of an Appryzing wherein the Superior must Receive by the force of Law nor can the forbearance of sixty years infer a contrary Custome because this is a Case rarely contingent and oft times not known to the Kings Officers and though it were their negligence prejudges not the King by an express Act of Parliament neither is that a Custome which People use to do but Customes here are only such as are Judicial by the Kings Ministers of Justice whereanent Skeen expresly saith that this is praxis forensis and albeit the Decisions Adduced by him be not at large yet the circumstances of fraud here are so pregnant that they cannot be thought to have been more pregnant in any other Case where there was no Proclamation and where the Defunct was not only in lecto but was moribundus Physicians having so declared the common Reputation being that he would not Live and Dâing de facto within a few dayes after and there being no singularity in the Match nor any pressing necessity of the Marriage for any other Effect The Lords found the Lybel and Reply relevant viz. That the Marriage was done when the Predecessors Father was moribundus and done wîthout Proclamation and that he Died within eight dayes after there being nothing alleadged to take off the Presumption of fraud upon these Circumstances Robert Miln contra Clarkson February 21. 1667. RObert Miln as Donatar to a Liferent Escheat having obtained a general Declarator insists now in a special Declarator for Mails and Duties It is alleadged for Clarkson that the Pursuer has no right to the Mails and Duties because he stands Infeft before the Rebellion It was answered any Infefetment Clarkson has is but a base Infeftment never clede with Possession till the Rebellion and year and day was run and so is null as to the Superiour or his Donatar It was answered that the base Infeftment is valide in it self and albeit by the Act of Parliament 1540. A Posterior publick Infeftment for Causes Onerous be preferable yet that cannot be extended to the Right of a Liferent Escheat or to a Donatar It was answered that by the course of Rebellion year and day the Superiors Infeftment Revives as to the Property during the Rebels Liferent and cannot but be in as good condition as any Posterior publick Infeftment and it was so decided March 19. 1633. Lady Rentoun contra Blackader The Lords found that the base Infeftment though Prior to the Denunciation not having attained Possession within year and day could not exclude the Liferent Escheat Helen Iohnstoun contra Robert Iohnstoun Eodem die IN the Cause betwixt Helen Iohnstoun and Robert Iohnstoun her Brother It was further alleadged for her that the Pursuit being a matter of breach of Trust and Fraud betwixt Parties so nigh as Brother and Sister the same ought to be Probable by Witnesses above exception and ought not to be referred to the Defenders Oath because it s offered to be proven that he did Depone before the Justices of Peace in Fife that he had never had the Bond in question and yet in this Process it is Judicially acknowledged in the Dispute that he hath the Bond and that he received it blank from the Pursuers Husband and it s now offered to be proven by his own Brother and other Witnesses above exception that the Pursuer delivered the Bond to him blank after her Husbands death which being a matter of Fact and Probable by Witnesses necessarly infers that the Bond was not redelivered to her Umquhil Husband The Lords before answer ordained the Witnesses ex officio to be examined upon the Pursuers delivery of the Bond after her Husbands Death Earl of Errol contra Hay of Crimunmogat February 23. 1667. THe Earl of Errol Pursues a Declarator of Redemption against Hay of Crimunmogot It was alledged Absolvitor because the Defender stands Infeft upon a Charter granted by Barcklay with the consent of the Earl of Errol proomni suo jure long after the reversion granted be Barcklay whereupon this Redemption proceeds It was answered for the Pursuer 1. That the Earl only consents and the Charter bears that the Sums were payed to Barcklay whose Right produced is a Wodset granted by the Earl of Errol and Hay of Vrie bearing an Expresse Reversion to any lawful Eldest Son of Hay of Vrie which failzieing to the Earl of Errol Ita est that the time the Earl Subscrived this Charter Hay of Vrie was alive and had Sons at least in spe so that the Earl of Errol had not thereby the Right of the Reversion and therefore his consent without any Sums received or any absolute Warrandice cannot extend to any superveening Right which he then had not actually but in spe et in apparentia 2ly The Earls consent to Barcklayes Disposition who had only the Right of Wodset not bearing irredeemable or absque reversione cannot take away the expresse Reversion of Barcklayes Right for albeit an Heritable Right be presumed Irredeemable presumptio cedit veritati and it cannot take away a Reversion where it is The Lords found that the Reversion granted in Barcklayes Right was not taken away by this Posterior Right and Charter but that the Earls consent imported only his Favour and Goodwil to transmit the Right to the Defender in respect of the alledgeances aforesaid Laird of May contra John Rosse Eodem
priviledged The Lords Repelled the Defense and found the Donatar lyable for the Rent in so far as ilk years intromission would extend to the Rent of that year George Schine contra Iames Christie Eodem die GEorge Schine having Adjudged an Annualrent and having Charged Iames Christie his Superiour to receive him He Suspends and alleadges he had Appryzed the same Lands before and that his Author was only Infeft base never cled with Possession The Lords Repelled the Defense hoc loco and ordained him to Infeft Reserving his own Right as accords Schaw contra Tennents Eodem die SChaw pursues certain Tennents for their Duties who produced several Discharges against which it was alleadged that the Discharges were null wanting Witnesses and were not Written with the Dischargers own hand and so were null by the Act of Parliament It was answered that Custome had introduced several exceptions from that Act as Bills of Exchange of the greatest importance which are valid being Subscribed without Witnesses albeit not holograph And in like manner the Discharges granted to Tennents which by long Custom through all the Kingdom use only to be subscribed by the Landlords without Witnesses and writen with another hand The Lords sustained the Discharges and would not put the Tennents to prove that they were truely subscribed unless they were offered to be improven in which case though the indirect manner was wanting they might be improven by comparison of Subscriptions and other Adminicles wherein less would serve then in other Improbations Sir Henry Hume and other the Creditors of Kello contra Sir Alexander Hume Iuly 6. 1667. SIr Henry Hume and others being both Creditors to Alexander Hume of Kello And Iohn Hume his Son Appryzed the Lands of Kello in anno 1649. And in anno 1653. Charged the Superior in anno 1661. Iohn Hume is Forefault upon the Treasonable Crimes committed in anno 1651. Sir Alexander Hume is Donatar to the Foresaulture the case of Alexander Humes Right before the Appryzing was that by Contract of Marriage Alexander Hume had Disponed several Husband Lands to Iohn reserving his own Liferent of certain Husband Lands The Father continued to possesse the Lands Reserved and the Son of the rest The Question is now concerning the Lands Reserved whereanent the Competition is betwixt the Creditors Appryzers and the Donatar It was alleadged for the Donatar that he ought to be preferred because any Right the Creditors had is but an Appryzing and a Charge without Infeftment which Charge albeit it be equivalent to an Infeftment in the Competition betwixt Con-compryzers yet it is no way equivalent as to the King for after the Charge all Casualities of the Superiority would fall to the Superior and so must the Casuality of Forefaulture fall to the King 2ly Though the Appryzers had been Infeft when they Charged their Infeftment would have been long after the committing of the Crime and there was nothing before the Crime but the naked Appryzing which was no real Right so that the Forefaulture devolving the Fee to the King with the burden only of such real Rights as the Superiour had consented to before the Cryme which cannot extend to this Appryzing which is no real Right or to the Charge and Infeftment thereon because after the Crime 3ly Albeit the Infeftment of the Son who was Forefault was base holden of the Father yet it coming in the Person of the King or his Donatar can no more be a base Right but becomes publick so soon as it is devolved to the King which was at the committing of the Crime before the Appryzers Infeftment or Charge It was answered for the Creditors that they ought to be preferred upon their legal Diligence for satisfaction of the lawful Debt contracted before the Crime because they had Appryzed before the Crime and had Charged the Superiour before the Sentence of Forefaulture Which Charge is equivalent to an Infeftment and the King succeeding in the place of the Forefault Person utiâur jure privato and albeit noâ voluntar Deed after the Committing of the Crime would be effectual against the King or his Donatar Yet an Appryzing before the Crime and a Charge before the Sentence or Process of Forefaulture is sufficient in favours of the Creditors especially seing the Superiority being unquestionably in their Father they might Charge him when they pleased and having Charged him they become in his place and cannot Charge themselves as Superiours of the Forefault Person The Lords preferred the Appryzers in respect of their Appryzing before the Crime and the Charge after before the Forefaulture It was further alleadged for the Appryzers that the forefault Persons Right being only base never cled with Possession their Appryzing against the Father who was not forefault was preferable It was answered for the Donatar that the Forefault Persons Right was cled with Possession in so far as the Forefault Person possest a great part of the Lands Disponed lying all together and of the rest the Fathers liferent being reserved the Fathers Possession was the Sons Possession It was answered that Possession of a part cannot be sufficient for the whole where there is an express Reservation hindering the Natural Possession of the rest and where the rest are actually possest by another Party neither can the Fathers Possession be the Sons because it is ordinarly found that Dispositions by a Father to his eldest Son and Infeftments thereon reserving the Fathers Liferent are not thereby cled with Possession And albeit in Reservations in favours of Wives the Husbands Possession be the Wifes Possession yet that is a special priviledge favore matrimonij dotis and is not competent to any other It was answered for the Donatar that a Reservation in favours of a Father in any gratuitous and clandestine Infeftment granted to the Son does not validate the same yet the Infeftment being for a Cause onerous viz. a Marriage which is a solemn and publick Act the Infeftment following thereupon is void of all suspition of Simulation and as an Infeftment to a Stranger reserving the Disponers Liferent would be valid by the Disponers Possession So must a Sons upon a Contract of Marriage otherwise great prejudice will follow Sons being frequently Infeft in their Fathers whole Estate reserving their Liferent of a part and ordinarly but basely Infeft to secure the Property being more desirous to Enter themselves as Heirs to their Fathers after their death if no posterior prejudicial deeds be done which is more honourable for the Family all the Infeftments would be overthrown being upon Debts contracted after the Infeftment The Lords being of different Iudgements in this Point were loath to decide them because the Case was decided by the former Vote Stevin contra Iohn Boid Iuly 9. 1667. IN a Tutor Compt at the Instance of Stevin against Iohn Boid these Queries were Reported by the Auditor and determined by the Lords 1. How soon a Tutor was obliged for Annualrent of the Defuncts Bonds that
accordingly hoc judicio he was not obliged to Dispute any anterior Possession Which the Lords found Relevant Hans Iurgan contra Captain Logan July 23. 1667. CAptain Logan a Privateer having taken Hans Jurgan Citizen of Lubeck obtained his Ship and Goods adjudged Prize by the Admiral upon this ground that he had carried in Prohibit or Counterband Goods to the Danes being then the Kings Enemies viz. Hemp and Victual and that he was taken in the return of that Voyage which was instructed by the Oaths of the said Hans and Sailers Hans raises a Reduction of the Admirals Decreet on these Reasons First That the Victual was no Counterband Goods but such Goods as the King allowed his own Subjects to Export out of England and declared that there should be no question thereupon nor upon any Goods not enumerat in an Act of Council produced all which are bellicus Instruments and Furniture and hath nothing of Victual and albeit Hemp be Prohibit by that Act and commonly counted Counterband Goods yet the quantity Deponed was only sixteen Stones which is an unconsiderable quantity and necessar for Calfing the Ship and Sowing the Sails 2ly The Pursuer produced the Duke of York his Pass Warranting this Ship to come from Bergen and therefore she could not have been taken in her return by any Privateer 3ly Whatever might have been alleadged if the Ship had been taken having unfree Goods in her there is neither Law nor Custom to sease upon the Ship in her return when these Goods are not in her for the Shâp might have been sold to another then he that did the wrong and it cannot appear whether the return was made out of the price of the former Fraught and though it were it might be of a hundreth times more value And albeit such seasures in return were allowable yet they could only be sustained when it is evident at the time of the Seasure at Sea that the Counterband Goods had been in the Ship that Voyage either by Bills of Loading Charter parties or other Writs taken in the Ship or by the Oâths or acknowledgements of the Company otherwise upon that pretence Freedom of Commerce would be altogether stopped seing every Ship might be brought inâ that they may be tryed by the Admiral whether or not they had in Counterband Goods that Voyage 4ly These Strangers could not be in culpa before the Indiction of the War could come to their Ears but the Indiction of the War was by the Kings manifesto of the Date the ninteen of September 1666. and this Ship Loosed from Lubeck the 24 of September within five days after and so could not possibly know the Indiction and they Trading bona fide as they were formerly accustomed cannot be seased as injuring the King in assisting his Enemies and they did nor could not know they were such It was answered for the Defender that he had walked exactly according to his Commission bearing expresly all kind of Grain to be Counterband Goods and being impowered to sease upon any Ship in return that had carried in Counterband Goods and that it was in the Kings power leges imponere bello and that Victual is Counterband Goods it is evident not only because it is the first necessary in War especially for Victualling of Ships Norway being a barren Countrey that hath little Grain of its own and produced a Treaty betwixt the King and the Crown of Sweden wherein the Swede hath a liberty to carry Counterband Goods bearing expresly in the Latin Annâna in the Dutch Proviant which shows what Goods are accounted Counterband Goods not only by the King but other Nations and for this Seasure in the return it is not only warranted by the Commission but upon evident Reason because the Kings Allies have free Trade both with Him and his Enemies so that they partake not with his Enemies against Him by furnishing them Instruments or Furniture of War and any privat Party transgressing the same might de rigore juris be seased upon as an Enemieâ and it is favour and benignity that the seasure is allowed only in that very Voyage in which the wrong is done As to the Duke of Yorks Passe Scotland being a free Kingdom and the Duke not Admiral of Scotland his Passe or passing from any Delinquents can only be Operative in England and that which is produced is only an Extract out of the Admirality Court bearing that such a Ship was Cognoseed to be a Lubeck Ship and so that she might freely passe which cannot import the Dukes knowledge much lesse his passing frae her carrying of Counterband Goods as to the pretence of Trading bona fide and the ignorance of the War no respect ought to be had to the alleadgeance because the War was begun and flagrant long before the Lousing of the Ship and there is no necessity of Manifesto's to indict War but Acts of Hostility and publick fame of a War are sufficient to hinder Allies of either Parties or Neuters to assist against their friends and here it s offered to be proven that six Moneths before this Ship Loused many Commissions were granted against the Danes Prizes taken and the Kings Subjects taken by the Danes and declared Pryze at Bergen upon the account of the War which must be presumed to be known by the Pursuer and the City of Lubeck being a Hanse Town of Trade which keeps Intercourse with London and other Towns of Trade and as to the Act of Council permitting the Kings Subjects to Trade even in Corn with his Enemies it is a special Indulgence in Favours of England only and could not be effectual as to Scotland and much lesse to Strangers The Pursuer answered that there Was nothing alleadged to show by Law or custom that Victual is Counterband Goods unlesse it were carried in to an Enemy for Relieving a Besieged place but not when it is but in common Commerce and if the Lubeckers be hindred to Trade in Corn or the like being the only Growth of their Country their Trade is altogether marred contrary to the Kings Interest and Intention who has written to the Emperour most favourably in behalf of the Hanse Towns for the freedom of their Trade and acknowledges them his good Allies and not meerly Neuters which Letter is produced neither is the palpable inconvenience answered if Privatteers may bring in all the Ships whether they carried Counterband Goods in that Voyage though they find none in them neither is there any thing alleadged sufficient to instruct that the Pursuers knew or were obliged to know of the War betwixt the King and Denmark before they Loused from Lubeck for any Acts of Hostility before the solemn Indiction produced were such Deeds as the Pursuers were not obliged to notice for the taking and declaring of Prizes doth not include Enimityâ or War but may be for reparation of privat injuries without intention to make an open War although a Pryze of the King of Britains Subjects had
been declared at Buirran it does not infer that Lubeck being a free State at so far distance behoved to know the same much lesse that thereby there was a War betwixt the King and Denmark The Lords having considered the whole Debate were of different opinions whether the Victual could be called Counterband Goods simply or only when imported for relieving of Sieges or for the like War-like use and whetheâ Ships could be seised in their return not having actually Counterband Goods in but especially whether they could be seised without evidence at the time of the seisure at Sea that in that Voyage they had in Counterband Goods but they did only Determine the first Reason and found it relevant to infer that the Lubeckers was in bona fide to continue the Commerce having Loused within to few days of the Kings Manifesto and that no other Act of Hostility before were to be presumed to have come to the knowledge of Lubeck or that thereby they were obliged to know that there was an actual War unlesse these Strangers knowledge were instructed by their own Oaths or that it was the common Fame notour at Lubeck before they Loused that there was War betwixt the King and Denmark and the Defenders offering to prove the same The Lords granted Commission to the Kings Resident at Hamburgh to receive Witnesses above exception and in the mean time ordains the Strangers Ship and Goods to be Inventared and Estimate and delivered again to the Strangers upon Caution to make the same or price forthcoming in case the Defender prov'd and prevail'd and with the burden of the Strangers damnage and expences if they betook themselves to this manner of Probation and not to the Oaths of the Strangers who were present reserving to the Lords the remanent Points to be Decided if the Strangers knowledge of the War were known In this Processe the Lords found also that competent and emitted before the Admiral could not operat against thir Strangers qui utuntur communi jure gentium Sir Harie Hume contra Tenents of Kello and Sir Alexander Hume Iuly 23. 1667. SIr Harie Hume having Comprized the Lands of Kello compearance is made for some Annualrenters who craved preference because their Infeftments of Annualrent was before the Apprizing It was answered that the Infeftment of Annualrent was base never cled with Possession It was answered for the Annualrenter that he produced an Antaphocha bearing the Receipt of a Discharge granted by the Debtor of the Annualrent which did instruct the Annualrenter was in Possession before the Apprizing by uplifting the Annualrent from the Debtor It was answered that the Sum was of fourscore Merks which was far within an Terms Annualrent and that it related only to the personal Bond and not to the Infeftment and that there was more then this Sum due of Annualrent by the personal Bond before the Date of the Infeftment to which only it behoved to be imputed It was answered that the Receipt being general in part of payment of the Annualrent he that payed the Sum might impute it to what Term he pleased and so would impute it to a Term after his Infeftment It was answered that before that Discharge the Pursuers Apprizing was led though no Infeftment thereon after which so small a part of the Annualrent could not be impute to any but the first Annualrent due and could not validat the base Infeftment The Lords found it sufficient to validat the base Infeftment notwithstanding of what was alleadged on the contrair Sir George Mckenzie contra Iohn Fairholm Iuly 25. 1667. SIr George Mckenzie Advocat having formerly pursued Reduction of a Bond granted to Umquhil Iohn Fairholm wherein he was Cautioner for his Father and Pluscardy upon this Reason that he then being Minor intertained by his Father as in his Family his Father was his Administrator and in place of a Curator so that Deeds done without his Fathers authorizing as Curator was null neither could his Father authorize him to his Fathers own behove as Cautioner for his Father which the Lords found relevant to annul Sir George's Subscription and now Sir George desiring the Extract of the Interloquitor It was further alleadged that Sir George was not only Cautioner for his Father but also for Pluscardy and that his Father might authorize him to Subscrive Cautioner for Pluscardy and therefore the Bond behoved to stand against him as Cautioner for Pluscardy It was answered that albeit his Father might authorize him as Cautioner for Pluscardy in a Bond apart wherein his Father was not concerned yet if his being Cautioner to Pluscardy were to the behove of his Father he could not authorize him therein but this Bond is of that nature for Pluscardy and the pursuers Father being bound Conjunctly and Severally Caution adjected for any of the correi debendi could not but be to the behove of both because in so far the Obligation was strengthned and the payment made by the Cautioner would liberat both and if Sir George should be Decerned Cautioner for Pluscardy it would Liberat his Father and so is clearly to his behove In respect whereof the Lords repelled also this new Defense and adhered to their former Interlocutor and found Sir George's Subscription for his Father and for Pluscardy to be to his Fathers behove and that he could not authorize him therein neither did he at all directly authorize him but in so far as they both Subscrived as Principal and Cautioner in one Bond. Mr. Iohn Philip contra Mr. Iohn Cheap Iuly 26. 1667. MAster Iohn Philip pursues his Tenents upon a Disposition granted by Michael Philip Compearance is made for Mr. Iames Cheap who Apprized from Michael Philips Heir who alleadged that the Disposition is null neither being Subscribed by the Disponer nor by two Notars for him for albeit it mention the Subscription of three Notars yet two of them Subscribed not at the same time with the third and neither of these two bear that they did Subscribe at command but that they Subscribed only for Michael Philip because that he could not Subscribe himself and albeit the Body of the Writ mention such Witnesses to the Command given to these Notars yet it is written with another Ink and does not appear to be Written at the time of the Subscriptions being the Hand-writ of him that Wrote the Body which mentions to be Written by him at Edinburgh and the Subscription is at Newburgh and because the Notars Subscription must give Faith to the Body of the Writ and not the Body to it It was answered that they offer to prove by the Witnesses insert that the Command was given It was answered that the Command being the most substantial point of the Subscription could not be proven or supplied by Witnesses for the Subscription of the Notar because the party could not Subscribe signifies nothing without the Command of the party for whom they subscribe and Warrand or Command in most ordinary Matters is not
the Subvassal can hinder the Superior to declare the Recognition of his immediat Vassal The Lords Repelled the Defence and Sustained Processe Captain Mastertoun contro the strangers of Ostend February 24. 1668. CAptain Mastertoun having taken a Ship of Ostend Pryze obtained her Adjudged before Ludquharn Admiral Deput of Peterhead The Strangers pursued Reduction before the High Admiral at Leith and obtained Sentence because the Decreet at Peterhead and Warrands thereof were not produced by which Sentence there was Decerned 16000. Dollars for the Ship and Loadning which was Fish taken in Island Mastertoun raises Reduction of the High Admirals Decreet on this ground that it was meerly in absence and proceeded without valuing the Ship or Goods and offered to restore the Ship or value and what he got for the Fish which was but a Dollar the Barrel in regard they spoilled the time of the dependence of the Plea and craved allowance of what he payed to the King being the fifteenth part and the tenth part to the Admiral and alleadged he could be lyable for no more nor quantum lucratus est seing he did bona fide bring up this Ship finding Aboard a Pass from the Magistrats of Ostend which was defective not conform to the Articles of Treaty with the King of Spain in so far as it bore no mention of the Sailers that they were the King of Spains Subjects and the Sailers did Depone that they did belong to Zurickzea under the States of Holland and albeit now ex post facto he is informed that they did reside sometime in Ostend yet he being in bona fide can be lyable in no more nor what he got It was answered for the Strangers that it being acknowledged that the Goods or Persons were free it cannot be denyed in Justice to restore them to their Ship and true value of their Goods that they might have made thereof in Ostend and not the price thereof that the Captain made for seing he acknowledges that they were corrupted for want of Salt it was his own Fault for he should have caused raise the Fish in the Barrels and Salted them again and as for the King and Admirals part there is no reason to allow the samine and put the Strangers to a Processe against the King and Admiral but if it be just he have restitution of his Goods he must have it of his whole Goods at the same availls as he could have sold them with his Damnage and Interest and any pretence of bona fide's can operat no more but to free him from a spuilzy and the Pursuers Oath in litem for the value and profits and to restrict the Process to wrongous Intromission to the true prices and true Damnages It was answered for the Captain that seing he was in bona fide to seize upon the Ship and seing he did obtain Decreet from the Judge Ordinar he was also in bona fide to sell and roup the Goods as they gave at Peterhead and it does not appear that there was Salt there for Salting them again nor Men that had skill nor could they medle with them till Decreet was pronunced which was a long time they were also in bona fide to pay the King and Admiral neither are the Kings Officer nor Admiral Cited but only the Admiral Deput The Lords found that seing the Pass did not bear the Sailers to be the King of Spains Subjects conform to the Articles that the Captain was in bona fide to bring her up and found him free of any Damnages and found him lyable for the price of the Ship and Fish as they might have been sold at Peterhead by rouping as use is if they had been preserved and found him obliged to have preserved them and repelled the alleadgeance as to the tenth and fifteenth but prejudice to the Captain and Owners to seek repetition thereof and found no necessity to Cite the Admiral his Deput being Cited Merchants of Hamburgh contra Captain Dishingtoun February 25. 1668. CAptain Dishingtoun having taken a Merchant Ship of Hamburgh and obtained her to be declared Pryze the Hamburgers raises Reduction on this Reason that the only ground of declaring her Pryze was because she carried Counterband Goods towards the King of Denmarks Domissions being then in Enmity with the King which was no relevant ground because it is evident the Ship was seized a Moneth before the proclamation of War against the Danes It was answered for the Captain that it is not the proclamation of War that makes the War for the Kings Declaration is only to give an account to the World upon what account the King had made War with the Danes and it is notour that there were frequent Acts of Hostility both by the Danes and against the Danes before this Capture It was answered for the Strangers that publick denunciation makes only a publick and lawful War but whatever might have been done against the Danes the Hamburgers being the Kings Allies and Friends were not obliged to know the same until such time that the proclamation of War might come to their Ears so that they have done no Fault being in bona fide to continue their Trade until the War was made publick to the World It was answered for the Captain that he was in optima fide to execute the Kings Commission bearing expresly to make Pryze of all carrying Counterband Goods to the Danes and therefore he could not be Decerned as praedo but the most can be Decerned against him though the Pursuer should be found to have been in bona fide to Trade with the Danes is to restore in quantum lucratus est but so it is that he made no profit for after the Capture he being pursued at Sea by the Enemy was forced to leave the Ship in question being Loadned by him whereby she was driven a shore and suffered Ship-wrack The Lords found that the Hamburgers were in bona fide to continue their Trade with Denmark and to carry to them Counterband Goods at the time of the seisure and therefore Reduced the Admirals Decreet as to the Restitution of the Ship and Goods or what profit the Defender made of them but for no higher value nor damnages in respect the Captain was in bona fide to execute the Kings Commission unlesse it were alleadged the Captain was in culpa in the losse of the Ship or misprising the Goods Lord Almond contra Thomas Dalmahoy Eodem die THe Lord Almond pursues a Declarator of the Escsheet of Thomas Dalmahoy who alleadged Absolvitor because he was Denunced upon a Bond granted by the Dutchess of Hamiltoun wherein he being only Charged as Husband for his interest and Denunced at the Mercat Crosse of Edinburgh and Peir and Shoare of Lieth being then Residenter in England and now the Marriage being dissolved by the Dutchess Death his Interest âeâseth as to all effects and so as to this Horning 2dly The Denunciation being upon a Bond due to the Dutchess own
old Rescinded Act pro tanâo it must be in the same case as Taxation and Maintenance which is ever accounted debitum fundi It was answered that these burdens Imposed by the Rescinded Parliaments are not in the same case with other publick Burdens especially where it is but a particular Act relating to particular persons and Shires without Citation of them for if they had known of this Act they would have petitioned the Parliament that singular Successors might have been excepted as they were in other Acts of this nature The Lords Suspended the Decreet and found that as they were singular Successors they were not lyable David Dick contra Ker. Iune 26. 1668. DAvid Dick as Donator to the Escheat of Ker insists in a special Declarator for payment of a sum due to the Rebel The Defender alleadged Absolvitor because it being a Bond bearing Annualrent it fell not under the single Escheat It was Replyed that Bonds bearing Annualrent are still holden moveable until the first Term of payment of Annualrent and is Disposeable by Testament if the Defunct die before that Term but here the Rebellion was before the date of the Bond and so the sum fell to the Fisk the day it was Subscribed It was answered that the 32. Act Parliament 1661. declares Bonds bearing Annualrent to exclude the Fisk without any exception or limitation The Lords having considered the Act found that it left Bonds bearing Annualrent in the same case that they were formerly and found that before the Term of payment of Annualrent they were moveable Peterson contra Captain Anderson Iune 30. 1668. CAptain Anderson having taken a Ship whereof Peter Peterson was Master and obtained the same declared Prize by the Admiral upon two grounds one that the Ship was sailed a great part of the company being Hollanders then the Kings enemies The other that albeit it was pretended that the Ship belonged to Swedes yet by several presumptions and evidences it appeared that is was but a conveyance and that the Ship truely belonged to Hollanders There is now a Reduction raised of the Decreet and the first ground thereupon Debated and Decided It was alleadged for the Strangers that they being Swedes their case was only to be ruled by the Treaty betwixt the King and the Crown of Sweden by which it is expresly provided that the Subjects of Sweden having such Passes as are exprest in the Articles shall not be Seased or brought up and particularly in bona homines nullo modo inquirâtur viz. Where such a Pass is found aboard and the said Pass being here found aboard the Ship was unwarrantably Seased and unwarrantably declared Prize upon pretence of being sailed with Hollanders because that Article takes away all question about the men and so gives liberty to the Swedes to make use of any Mariners they please It was answered that the Reason of Adjudication was most just and this Reason of Reduction ought to be repelled because the Kings Proclamation denuncing the War gives express warrand to sease all such Ships as had any number of Hollanders therein which must stand as the Rule unless the Swedes had by their Treaty a particular exception derogating from that Rule which they have not but on the contrary the Treaty contains an express provision that they may make use of a Hollands Master and not unless he became a Citizen of some City of Sweden and be sworn Burgess thereof but upon the former ground there needed no such Article for Masters and all might thereby be Hollanders And as to the Article of the Treaty concerning no further inquiry there is subjoyned quod si gravis aliqua suspitio subsit in which case notwithstanding of the Pass Seasure might be made but here there was gravis suspitio that the Ship or Goods belonged to the Hollanders the Master and major part of the Company being Hollanders and the Pass mentioning a Ship of an hundred Tuns whereas this Ship was two hundreth Tuns It was answered for the Strangers that the Kings Proclamation could be no Rule to the Subjects of any other free Prince but the Law of Nations or their own Treaties behoved to be the Rule and by the Law of Nations the King could not hinder his Allies of any Commerce or Trade with His Enemies which they were accustomed or free to do before the War except such Acts only wherein they partaked with his Enemies by furnishing provisions of War or Counterband Goods and so the King by no Proclamation could hinder the Swedes to hire and make use of Hollanders which rather weakned then strengthned his Enemies and in this case the making use of Hollanders was necessar because other Sailers could not be had when the Ship was bought and that Article of the Proclamation ought to be benignly interpret that when any Ship carries Hollenders as Passengers the same should be Seased but not when these were Servants and Mariners to other Nations It was answered for the Captain that the Kings Proclamation of the War behoved to be a Rule to the Kings Judges and that it was most consonant to the Law of Nations and it was impossible without the same to know what Ships did truly belong to Allies and that in the Spanish Treaty with the King that priviledge was specially indulged to the Flandrians not to be quarrelled upon the account of Hollanders because of the Identity of their Language which would have been unnecessar if by the Law of Nations all might have so done The Lords Repelled the Reason of the Reduction and found that ground of the Adjudication that the Ship was Sailed with a great part of the Company being Hollanders Relevant alone and that the same was sufficiently proven by the Testimony of the Steirsman and another Witness of the Company and therefore Assoilzied from the Reduction The Minister of Elgin contra his Parochioners Eodem die THE Minister of Elgin pursues his Parochioners for the Viccarage of some Yeards in Elgin which belonged of old to the Canons of the Cathedral Kirk of Elgin and were by them Feued to the Defenders who alleadged Absolvitor because the Yeards being a part of the Canons Portions and in effect their Gleibs had in no time past ever payed Viccarage which is consuetudinar and local both as to the payment and the kinds for in some places Teind Lint and Hens are payed and in others not but the ordinar Viccarage being Stirks Wool Milk and Lamb there is none of these to be had in these Yeards It was answered that no Prescription could take away Teinds upon the forbearance of demanding it by Beneficed Persons who are but Administrators and cannot Delapidat otherwise all Benefices might be destroyed 2ly Lands that have been always Ploughed and so payed Parsonage and becoming Grass are lyable to Viccarage albeit it cannot be proven that ever they payed any before The Lords found the Defense Relevant unless the Pursuer could prove that Viccarage has been payed out of these
as were not constitute by Writ anterior to the Defenders Bond and as to any constitute by Probation of Witnesses for proving Bargains Merchant Compts and Furnishing wherein the Probation and Decreet are both after the Bond they cannot be said to be anterior Debts because they are not constitute till Sentence and albeit the Sentence bear the Debt to have been contracted before this Bond yet that cannot make them anterior Debts because Writ cannot be taken away by Witnesses proving an anterior Debt which would be as effectual against the Writ as if the payment thereof had been proven by Witnesses and the time of Bargaining or Furnishing being a point in the Memory and not falling under the Sense no body would be secure who had Writ but that Bargains and Furniture might be proven anterior thereto The Pursuer answered that his Reason was most Relevant and the constitution of the Debt is not by the Decreet or Probation but by the Bargain and Receipt of the Goods or Furniture after which no posterior Deed of the Debitor can prejudge the Creditors Furnishers and albeit in many cases Witnesses prove not and Witnesses are not admitted to prove where Writ may and uses to be interposed yet where the Probation is competent the Debt is as well proven thereby for the time of contracting as it is by Writ neither doth that ground that Writ cannot be taken away by Witnesses any way hinder for the meaning hereof is only that the Payment or Discharge of that Writ must be proven by Writ and it were a far greater inconvenience if after Bargain and Furniture any Writ granted by the Debitor though without an Onerous Cause should prejudge these Creditors The Lords Sustained the Reason and Repelled the Defense and found Debts constitute by Witnesses to be effectual from the time of contracting and not from the time of Probation or Sentence to take away any posterior Deed of the Debitor done without a Cause Onerous The Pursuer insisted in a second Reason of Reduction that albeit these Debts were posterior to this Bond yet the samine ought to be Reduced as being a fraudulent conveyance betwixt the Father and the Son kept up and latent in some of their Hands without any thing following thereupon to make it known and publick so that the Creditors having bona fide contracted with the Father having a visible Estate were deceived and defrauded by this latent Bond if it were preferred to them 2dly This Bond bears only to be payable after the Fathers Death and so is but donatio mortis causa and but a Legacy or if it be inter vivos it is much more fraudulent and latent 3dly Bonds of Provision for Love and Favour granted to children are accompted but as their legitime still Revockable by the Father and all Debts contracted by him are preferable to them The Defender answered that there was neither Law Reason nor Custom to evacuat or exclude Bonds of Provision granted by Parents ex pietate paterna to their Children upon accompt of their Fathers posterior Debt especially if the Bonds were Delivered for there is no ground for any such thing by the Act of Parliament 1621. which relates only to Deeds done after the Debt contracted neither is there any sufficient ground of fraud that the Bonds were not made publick or known there being no obligement upon Parties to publish the same and Creditors have less means to know the Debts of other anterior Creditors then of Children having a just ground to suspect that they may be provided and to enquire after the same neither doth the delay of the Term of payment import either fraud or that the Bonds were donationes mortis causa The Lords would not Sustatin the Reasons of Reduction upon the Act of Parliament 1621. or upon the general ground that posterior Debts were preferable to all Bonds of Provision but ordained the Pursuer to condescend upon the particular ground of fraud in the Case in question The Collector-general of the Taxation contra the Director of the Chancellery Ianuary 22. 1669. THe Director of the Chancellery being Charged for the present Taxation imposed in Anno 1665. by the Convention of Estates Suspend on this Reason that he is a Member of the Colledge of Justice which by the Act of Convention are exempted It was answered that the Members of the Colledge of Justice were never further extended then to the Lords Advocates Clerks of Session and the Writters to the Signet It was answered that as the Signet depends immediatly and chiefly upon the Lords of Session and Writters thereto are of the Colledge of Justice so the Chancellery depends in the same way upon the Lords who issue Orders thereto from time to time to give out Precepts direct to Superiours or to Bailliffs Sheriffs for Infefting of Supplicants and therefore the Director of the Chancellary being Writer in that Office must enjoy that Priviledge as well as the Writers to the Signet for albeit the Director gives out Precepts and Brieves of Course without the Lords Warrand so do the Writers to the Signet give out many Summons of course without Warrand The Lords found the Director of the Chancellary to be a Member of the Colledge of Justice and therefore Suspended the Letters The Collector general of the Taxations contra The Master and Servants of the Mint-house Eodem die THe Master of the Mint did also Suspend for him and his Servants on this Reason that it was their ancient Priviledge to be free of Taxations for which they produced certain Gifts by former Kings of Scotland and Decreets of the Lords It was answered that the Act of Convention gives only Exemption to the Members of the Colledge of Justice and Discharges all former Priviledges and Exemptions It was answered that Acts of the Convention must be understood salvo jure which takes place even in Acts of Parliament 2dly They produced a late Gift granted by the King in Anno 1668. Exeeming the Master and Servants of the Mint from all Taxation Imposed or to be Imposed which is past the Exchequer and Privy Seal so that the King who hath Right to the Taxation might Discharge the same to whomsoever he pleased The Lords in respect of the new Gift did Exeem the Officers of the Mint and Suspended the Letters The Daughters of umquhil Chrichtoun of Crawfoordstoun contra Brown of Inglistoun Eodem die THe Daughters of umquhil Crichtoun of Crawfoordstoun as Heirs appearand to him immediatly after his Death gave in a Supplication to the Lords desiring his Charter-Chist to be Inventared and Sequestrat Which the Lords granted But before the Commission came to the House William Lowry the Ladies Nevoy upon notice of the Order Rode Night and Day and prevented the same so that all the Writs were carried from Crawfoordstoun to Inglisstoun Thereafter the appearand Heirs raised Exhibition ad deliberandum against the Lady and others who produced three Dispositions by Crawfordstoun in favours of Brown of
a perpetual Tack and would not Sustain the samine in part and found it totally null and that the Receiving of the former Duties was no Homologation thereof Captain Wood contra Boyneilson Eodem die CAptain Wood having taken a Ship of Norway whereof Boyneilson was Master called the Raphael Prize she was Adjudged by the Admiral and there is now Reduction intented of the Decreet of Adjudication in fortification whereof the Privateer Insists upon two grounds First That this Ship belongs to the Kings Enemies with a considerable part of the Loadning viz. 1500. Dails as is acknowledged by the Skippers Deposition 2dly Whereas she pretends to have been bound for London upon the Kings Proclamation giving liberty to all his Subjects to import Timber from Sweden and Denmark by the Ships and Mariners in these Countreys though then in Enimity yet the said Proclamation requires that all such Ships shall find Caution at the Custom-house to return straight to England without going aside into an Enemies Countrey and requires the Lord Admirals Pass but this Ship at the time of the Adjudication did not pretend to the Duke of York's Pass but only to the Duke of Richmond's Pass as Admiral of Scotland whereas the Proclamation warrands only the Duke of York to give such Passes neither doth he produce now any Pass from the Duke or any extract of a Pass from him It was answered for the Strangers and for Iohn Dyson Citizen of London that they having Contracted conform to the Kings Proclamation for importing Timber and having found Caution and obtained a Pass conform to the Proclamation the Ship and Loadning cannot be made Prize upon the Skippers Oath that they had Aboard 1500. Dails belonging to him and the Company First Because the Skipper is testis singularis 2dly By the constant Custom Sailers have Portage Dails allowed 3dly The number of the Dails is insert but with Figures and might easily have been altered after the Testimony from 500. by adding one and from 150. by adding a Cipher neither of which would have been sufficient to infer Confiscation 4thly Iohn Dyson Citizen of London having bona fide Contracted with the Stranger for importing 6000. Dails albeit the Skipper had foisted in some more it cannot infer a Confiscation of a Loadning belonging to him the Kings Subject Contracting bona fide whatever it may infer as to the Strangers Ship and his own Dails As to the second point anent the wanting the Duke of Yorks Pass there is produced a Testificat of the Dukes Secretaries and the Ship having been Bought from the Privateer by Captain Lye who carried her to London the Duke gives her a Pass to return from London to Norway bearing that he had given her a former Pass to come into England there is also produced His Majesties Letter that he is sufficiently informed that this Ship is Authorized by a sufficient Pass and therefore ordering her to be Restored with Testificats from the Customers that Caution was found there and the Testimony of the Skipper and a Sea-man taken at London bearing that Captain Lye having Bought the Ship from a Privateer desired the Skipper then in Prison to show him the Duke of Yorks Pass which when he shew'd him he pulled it out of his Hand to secure the Ship against all which it was objected that all these were impetrat after the Ship was declared Prize and that it is the more suspitious that at the time of the Adjudication there was not so much as mention made of the Duke of York's Pass though the Duk of Richmonds Pass was rejected as not sufficient without the Duke of Yorks and that as yet there is no Extract of the Pass out of any Record and as for his Majesties Letter it hath been impetrat suppressa veritate and cannot take away a Parties privat Right but is salvo jure as are all Acts of Parliament done by His Majesty and three Estates incitata parte much more such a Letter as the Lords found in the case of the Castle of Riga and though there had been a Pass from the Duke of York it is likely not to have been of this Date but for a former Voyage The Lords found the alleadgeance for the Privateer that there was 1500. Dails Aboard belonging to the Kings Enemies Relevant to Confiscat the Ship and Dails but not to Confiscat Iohn Dysons Dails His Majesties Subject who acted bona fide if he can make out a Pass and before answer to that point grants Commission to Sir Robert Murray to try if there were a Record keeped of the Dukes Passes and if therein there was a Pass for this Voyage and to send down the duplicat thereof compared with the Principal and Signed by Sir Robert and to try at the Records of the Custom-house if Caution was found there and if there was no Records of Passes to take the Oath of Captain Lye concerning the Pass alleadged taken by him and ordained the Members of the Court of Admirality to be Examined upon Oath whether the Testimonies in Figures for 1500 Dails was given in Figures as it bears and found the Skippers Testimony alone to prove not only against himself but the Owners because he was entrusted by them in this Affair Duke Hamiltoun contra the Feuars of the Kings Property Iuly 14. 1669. THe Duke of Hamiltoun as Collector-general of the Taxations having Charged the Feuars of the Kings Property for payment of this current Taxation several of them Suspended upon this Reason that by the Act of Convention there is abatement given of a third part to such Shires as in the West and South in regard their Retours are higher then the rest of the Countrey and yet these of the Kings Property are Charged for the whole It was answered that that abatement cannot extend to the Feuars of the Property because in all former Taxations they were distinct both from the Temporality and Spirituality and therefore though by the Act of Convention the Temporality of these Shires be eased it will not extend to the Property especially seing the Reason of the Act cannot extend to them for the Feuars of the Property did bear no Taxation till the year 1592. and then there was a Commission granted for Retouring them and that Complaint of the high Retours of the Shires being then known these of the Property would doubtless endeavour to have easie Retours It was answered that the Act of Convention expresly Regulating the Taxation both as to the Spirituality and Temporality it cannot be thought but that these Members did comprehend the whole and seing the Property cannot be of the Spirituality it must be of the Temporality which hath the abatement as to these Shires without exception and albeit the Property was lately Retoured yet there being no Rule to estimate a Merk-land or Pound-lands Retour by or how many Pounds of real Rent makes a Pound of Retour there could be no other Rule but to make the Retour of the Property
or Brybing the Witnesses it is most Relevant and express in Law l. 33. ff de re judicata bearing testibus pecunia corruptis conspiratione adversariorum c. which being pessimi exempli in odium corrumpentis not only are the Witnesses punishable but the Sentence annullable which is confirmed toto titulo Codicis si ex falsis instrumentis and that without regard whether they undertake or Depone falsly or not as is observed by Bartol l. in princ ff de falsis adict l. divans 33. de re judicata Num. 7. and Covaruvias in repet C. quamvis fol. 57. Col. 3. which he attests to be the common opinion and which is likewise attested by Boss. in tit de falsis num 1608. and by Will. 66. com opin fol. 2991. and especially by Hartman tit 15. de testibus observ 16. where he doth expresly maintain that it is not so much a lawful to instruct a Witness excitandae memoriae causa non si subito deprehendatur haesitet titubet in respect any such instruction is subornationis velamentum and which Opinion hath been likewise Confirmed by the Decisions of the most eminent and famous Courts of Justice as may appear per Capell tholos deces 2804. and others And which is likewise the Opinion of Clarus viz. That the foresaid Acts of Corruption are disjunctive and separatim Relevant as may appear by Fassum Num. 12 13. quâst 53. de exceptionibus quae contra testes opponi possunt And to the last alleadgeance against the Probation by Witnesses that it would infer an endless course of Reprobators It was answered that by the same Reason Reductions might be taken away because the Decreet Reductive might be Reduced and that Decreet by another Reduction without end But Reprobators have every where been Sustained and no such inconvenience ever found neither can it be imagined that every Pursuer of a Reprobator will prevail which this infinite progress must suppose only it may infer that Witnesses in Reprobators ought to be more unquestionable than the Witnesses called in question thereby The Lords found that Reprobators were competent albeit the Witnesses upon Oath Deponed upon their own Hability at the desire of the Party and albeit the Party Protested not for Reprobators seing he was not admitted to compear and found that Member of the Reprobators upon the poverty not Relevant in this Clandestine Crime neither that Member upon their alleadged Infamy unless it were alleadged that they were infamous infamia juris by any Deed which the Law expresly declares to infer Infamy or were declared infamous sententia judicis and found that Member of the Reprobators upon instructing or prompting the Witnesses Relevant without necessity to alleadge the Witnesses undertaking or Deponing conform and that in odium corrumpentiâ without inferring any blemish upon the Witnesses so prompted who consented not or swore falsly and found that Member Relevant of Corrupting the Witnesses by giving or promising of good Deed more than might be suitable to the Witnesses for their Charges but as to the manner of Probation by Oath or Witnesses The Lords superceeded to give answer till a Practique alleadged upon were produced Pringle contra Pringle February 1 1971. PRingle of Soutray having only three Daughters does in his Testament done upon Death-bed Dispone his whole Lands to his eldest Daughter and Constitute her universal Legator with this provision that she pay 10000. merks to the other two Daughters the Disposition as to the Lands being Reduced as being in Testament and on Death-bed the universal Legacy was Sustained to give the eldest Daughter the Right of the Deads part whereupon it was alleadged for the other two Daughters that if the eldest insisted for the universal Legacy she behoved to have it with the burden of the ten thousand merks which was a burden both upon the Land and Moveables and doth no more relate to the one than the other so that albeit the Right of the Land be Evicted the Moveables remains burdened as if a Father should Dispone certain Lands to a Son with the burden of Portions to the other Children albeit a part of the Lands were Evicted the Portions would be wholly due without abatement It was answered for the eldest Daughter that in latter Wills the mind of the Defunct is chiefly regarded not only as to what is exprest but to what is implyed or presumed and here it is evident that the mind of the Defunct was that his two younger Daughters should only have ten thousand merks in satisfaction to all Rights of Lands or Moveables Now seing they have gotten two third parts of the Land which is much better than ten thousand merks It cannot be thought to be his meaning to give them any share of his Moveables also but that the half thereof which was at his disposal should belong to the eldest Daughter without burden Which the Lords found Relevant and declared the same to belong to the eldest Daughter without burden of the Provisions Alexander Ferguson contra Parochioners of Kingarth Eodem die ALexander Ferguson being one of the Prebands of the Chapel-Royal by His Majesties Presentation and Collation pursues the Heretors of the Paroch of Kingarth for the Teinds as being annexed to the Chappel-Royal as appears by the Books of Assumption and three Presentations from the King produced Compearance is made for the Minister of Rothsay who alleadged that he had Presentation to the Kirk of Kingarth from the King and Collation thereupon and so had best right to the Teinds of his Paroch because de jure communi decima debentur pârocho and as for the Pursuer he shews no Right by any Mortification of these Teinds to the Chappel-Royal Neither can he make it appear that ever he or any other Prebander were in Possession civil or natural thereof 2dly Albeit the Prebanders had had a Right the same is now taken off by Prescription because it is offered to be proven that the Minister hath been 40. years in peaceable Possession before the Pursuers Citation which not only takes away the bygones but the whole Right and establishes the same in the Ministers person The Lords found the Books of Assumption and the three Presentations from the King sufficient to instruct the Pursuers Title and found the Defense of Prescription Relevant as to the bygones before the Citation but not to Establish the Right in the Minister or to take it from the Chappel-Royal as to years after the Citation and in time coming in respect of the Act of Parliament providing that the Kings Interest shall not be prejudged by the neglect of His Officers Blair of Bagillo contra Blair of Denhead February 3. 1671. BLair of Bagillo having granted Bond to Blair of Denhead he did Assign the same to Guthrie of Collistoun Bagilio raised Suspension against Collistoun as Assigney in Anno 1632. and now Collistoun insists in a Transferring of the old Suspension and Decreet Suspended against Bagillo's Heirs to the effect
this Bond as Witness is his Subscription but that he did not see Sir Lewis Subscribe nor any of the other Witnesses and remembers nothing of the matter and that he knows not Iohn Carnagie Serviture to the Earl of Southesk another Witness insert The Pursuer thereupon craved that the Defender would more particularly design the other Witness John Carnagie Serviture to the Earl of Southesk because there were several persons Servants or Attendents upon the Earl at that time of the same name and condescends upon two of them having several Designations beside this common one The Defender alleadged that he was obliged to condescend no further seing the Act of Parliament required no more than the Name Sirname and Designation It was answered that the intent of Designations being to find out the Person of the Witness that he might be adduced in the Improbation a general Designation would not suffice but behoved to be made special or otherways if the Pursuer should Cite any Person of that Designation and that Person should deny the Subscription his Testimony would improve or at the best the Defender behoved then to Design specially another of the same common Designation otherwise it were a compendious way to all Forgery as if Witnesses should be insert of such a Name Indwellers in Edinburgh or any other Town In that case if the Testimonie of none of them should Improve there were no remeed for the Falshood The Lords found that all the persons that were the Earl of Southesks Servants or Attendantsat that time and were called Iohn Carnagie that were alive should be Cited and the Hand-writs of any that wereso Designed that were dead should be produced by either Party to be compared with this Subscription that thereby it might appear if the Subscription could be astructed by the Testimony or hand writ of any other Sir Francis Scot of Thirlstoun contra Lord Drumlanrig Iune 10. 1671. SIr Francis Scot having obtained Decreet of Adjudication of the Lands of Brankinside and others and having Charged the Lord Drumlanrig to receive and Infeft him He Suspends on this Reason that he was willing to satisfie the Sums contained in the Adjudication upon Assignation made to him thereto and so was not obliged to receive the Charger It was answered that albeit King Iames the third his Act of Parliament anent Appryzings doth provide that for a years Rent Superiours shall receive Appryzers or otherways shall take the Land to themselves and pay the Sums yet that gives not the Superiour an option but bears failzying of paying a years Rent the Superiour may satisfie the Sums and take the Land in his own hands but where that was offered it was never by Custom or Practique allowed that the Superiour should exclude an Appryzer but whatever were in the case of Appryzings that power was never granted to Superiours in Adjudications whereupon they were still obliged to receive Adjudgers without a years Rent until the late Act of Parliament and the said old Statute giving an option to the Superiour is not to be extended to Adjudications nor was it ever by any subsequent Law or Consuetude extended thereto It was answered that by the ancient Feudal Law a Superiour could not have been compelled to receive a stranger Vassal albeit a Creditor yet the Statute of King Iames the 3d. did remeid this in favours of Creditors and obliged Superiours either to receive Appryzers for payment of a years Rent or else to pay the Sum Apprysed for but long after that time there was no mention of Adjudications which were a Supplement of the Lords that where the appearand Heir being Charged did renunce the Creditor should not be frustrate but might obtain Adjudication of the Lands contra haereditatem jacentem which except as to that point of Form is the same with an Appryzing under another Title and albeit as to the years Entry the Lords would not extend the same to an Adjudication It was upon this special Reason that in the Act of Parliament 1621. anent Appryzings the same is declared Redeemable upon the Sums Appryzed for and a years Rent for the Entry yet in the very next Act in the same Parliament anent Adjudications the years Entry is left out which was thought by the Lords to be done by the Parliament of purpose and so not to be extended by the Lords But otherways the same Reason was for the Entry in Adjudications as in Appryzings which the Parliament has now found by their late Act and therefore the matter of the Entry is not to be drawn in consequence to the Superiours option The Lords found that the Superiour had his option and might refuse to receive the Adjudger offering to satisfie the Sums in his Adjudication upon Assignation made to him thereof and declared that the same should be Redeemable from the Superiour upon the like Sums without any thing for a years Entry and that in all things else the Superiour and Vassal should be in the same case as if the Adjudger had been Entred to that Effect Town of Breichen contra Town of Dundee Iune 14. 1671. LAurence Dundass having been Debitor to the Earl of Seaforth in 200. pound Sterling was incarcerat in the Tolbooth of Breichen and being suffered to go out of Prison Mr. Rory Mckenzie as Assigney to the Earl obtained Decreet against the Town for payment of the Sum and took Assignation to the Caption and therewith Incarcerat Laurence in the Tolbooth of Dundee and now pursues the Town of Dundee for suffering Laurence to go out of Prison and condescends that they suffered him to go ordinarly to the Kirk on the Sabbath and that once they suffered him to go to the River by Boat and over to Fife another Shire and ordinarly to go to the Street and to Taverns without necessar Affairs The Defenders answered that the Prisoner returned still to the Prison every night and went always abroad with a Guard and his going to the Water was because of his Indisposition and for his Health that if he touched upon the other side in Fife he did return that same night to Prison and that his going to the Kirk with a Keeper can be no Relevant Ground and even the going out upon other occasions with a Keeper though not absolutely necessar cannot make the Magistrates lyable it being the constant Custom of all Burghs so to do and that a Prisoner being under a Guard is in Prison albeit not in the Tolbooth The Pursuers answered that Magistrates of Burghs were but publick Servants in Keeping of Prisoners and were obliged to give punctual Obedience to the Letters of Caption bearing to keep the Rebel in sure Firmance within their Tolbooth which is founded on very good Reason that the Prisoner may be necessitate squalore carceris to do all Deeds in his power to satisfie his Debt which would be eluded if the Magistrates at their pleasure might let them go out with a Guard and would but turn to a Confynement or
the Testament was only Conditional and became void by the Earls Returning and making use of the other Testament and therefore Repelled the Defense in respect of the Reply and had no necessity to determine anent the Confirmation and Error alleadged Lindsay of Mount contra Maxwel of Kirkonnel Iuly 20. 1671. LIndsay of Mount being Donator to the Waird of the Estate of Kirkonnel by the Death of the late Laird and Minority of this Laird pursues the Tennents for Mails and Duties Compearance is made for the appearand Heir as having Right by Disposition from his Grand-mother to an Appryzing led at her Instance against her Son and alleadged that there could be no Waird because Kirkonnel the Kings Vassal was Denuded before his Death and his Mother as Appryzer was Infeft It was answered first That this Apprizing was upon a Bond granted by the Defunct to his own Mother for the behove of his Son and appearand Heir without any onerous Cause and so was null and simulat and a fraudful Contrivance in prejudice of the King as Superiour of his Casuality of Waird and that it was found in the Case of the Lord Colvil that a Vassal having married his appearand Heir in lecto It was found a Fraudulent precipitation in defraud of the Waird It was answered that the alleadgeance was not Relevant because there was nothing to hinder the Defunct to have Resigned in favours of his appearand Heir without any Cause onerous or to grant him a Bond that he might be Infeft upon Appryzing or to grant such a Bond to any Person to the Heirs behove he being in leige poustie and there can be no presumption of Fraud seing he might have obtained his Son Infeft directly which the King refuses in no case when the Granter is in leige poustie The Lords Repelled the Alleadgeance for the Donator and Sustained the Appryzing The Donator further alleadged that by the Act of Parliament 1661. betwixt Debitor and Creditor It is provided that the Debitor may cause the Appryzer Restrict himself to as much as will pay his Annualrent and the Debitor may bruik the rest during the Legal and now the Donator is in place of the Debitor so that what superplus there is more than will pay the Appryzers Annualrent must belong to the Donator It was answered that this Clause is peculiar and personal to Debitors and cannot be extended to Donators who are not mentioned therein because Debitors when they crave Restriction they are presumed as provident men to uplift the rest for satisfying the Appryzing or their other Debts or for their Subsistence and so being introduced wholly in their favours it cannot be extended in favours of the Donator to their prejudice For if the Appryzer Possess all the superplus will satisfie the Appryzing whereas if the Donator uplift the Superplus the Debitor will be hudgely prejudged neither the Appryzing nor any other Debt of his being satisfied thereby nor his Heir intertained therewith The Lords found that this Clause could not be extended to a Donator and that there could not be a Waird both by the Decease of the Appryzer and Debitor The Donator further alleadged that the Appryzing was satisfied by Intromission within the Legal which did extinguish the Appryzing as to all Effects and Purposes as if it had never been and all Parties return to their Rights as they were before the Appryzing and so consequently the Superiour and his Donator has the Ward Duties during the appearand Heirs minority after the Appryzing is extinct for the Appryzing being but a Collateral Security like an Infeftment for Relief it is jus resolubile and doth not fully Divest the Debitor who needs not be Re-seased as he would be in the case of a Wodset holden publick but the Debitors own Infeftment Revives and stands valide and the appearand Heir must be Infeft as Heir to the Defunct which cannot be till he be legitimae aetatis after the Ward It was answered that the Alleadgeance is not Relevant unless the Appryzing had been satisfied in the Defuncts Life for then his Infeftment would have Revived But if any thing remained due the appearand Heir hath the Right of Reversion as appearand Heir and Intromission thereafter cannot Revive the Defuncts Infeftment The Lords found that so soon as the Appryzing was extinct whether before the Defuncts Death or after the Ward took effect and the Donator had Right Laird of Birkinbog contra Iohn Grahame of Craigie Eodem die IN a Competition amongst the Creditors of umquhile Sir Robert Dowglass of Tilliquhilly a Disposition granted by Sir Robert to Grahame of Craigie was called for to be Reduced upon this Reason that it was granted by Sir Robert when he was a notorious and known Bankrupt and fled and was latent so that by the Act of Parliament 1621. he could not prefer one Creditor to another being in that Condition for that Act annuls all Dispositions made by Bankrupts without a just and necessary cause and there was no necâssity nor Justice for the Bankrupt to prefer one Creditor to another It was answered that unless there had been legal Diligence at the Pursuers instance or that the Defenders Disposition had been without a cause onerous there is no ground for that Act to hinder any Debitor though Bankrupt to prefer one Creditor to another for if he had had the Money he might have payed any he pleased and the Cause is both just and necessary because he might have been compelled by Law to have done the same and there was nothing to hinder the Creditor but that as he might have first Appryzed so he might have taken the first Disposition from his Debitor 2dly The Pursuers Debt was for a Bargain of Victual Sold and Delivered to the common Debitor but a Month before the Disposition in question when he was alleadged to be Bankrupt The Lords found the last Alleadgeance Relevant and Assoilzied from the Reduction but did not decide upon the former alleadgeance Guthrie contra Mackarstoun Eodem die IN a Competition betwixt an Heir and an Executor anent the Rent of a Miln where the Tacks-mans Entry was at Whitsunday where the first Terms of payment of the Rent was at Candlemas and the second at Whitesunday the Liferenter having survived Candlemas and died before Whitesunday The question arose how far the Executor of the Liferenter had Right it being alleadged that the Executor of the Liferenter could only have Right to the one half the Liferenter having only survived the first Term as in House Mails The Lords found that the legal Terms of a Miln Rent being Whitesunday and Mertinmas the Liferenter having survived both the legal Terms had Right to the whole years Rent in the same way as in Land Rents and not to the one Term as in House Mails Sir George Maxwel of Nether Pollock contra Maxwel of Kirkonnel Iuly 21. 1671. IN this pursuit related the 11th of Iuly instant It was further alleadged for the Defender that the
formal and solemn according to the custom then in uâe the posterior being upon Denunciation at the Mercat Croâs of the Sheriffdom and the other at the Mercat Cross of the Regality when Regalities were supprest by the Vsurpers and was led at Glasgow Iuly 15. 1670. Lady Lucia Hamiltoun contra Boyâ of Pitcon An Apprizer was âound comptable for the whole Rents of the Lands he possest by his Apprizing both for his Ommission and Intromission and that not only till his Apprizing was satisfied but for all years subsequent that he continued to intromet with any part Ianuary 26. 1671. Cass contra Cunninghame An Apprizing coming in the person of the apparent Heir of the principal Debitor was âound extinct by satisfaction of the âums payed by the apparent Heir therefore summarly without Reduction not only as to the Estate of the apparent Heir but as to the Estate of a Cautioner âor that Debt which was also Apprized February 22. 1671. Dumbar of Baldoon contra Dick. An Apprizer of an Annualrent was preferred to an Arrester although there was no Diligence upon the Apprizing for nine years before the Arrestment and that there was no Infeftment or lawful Charge on the Apprâzing in respect it was a prior judicial Assignation requiring no Intimation February 23. 1671. Lord Iustice Clerk contra Fairholme Apprizings deduced since Ianuary 1652. within year and day of the first effectual Apprizing were found not to be compted by a year from the Infeftment or Charge by which the Apprizing becomes effectual but from the date of the first effectual Decreet of Apprizing by the Act 1661. betwixt Debitor and Creditor Which bears That all such Apprizings shall be as if one Apprizing had been led for the whole Iuly 4. 1671. Laird of Balfoure contra Dowglas An Apprizing was found satisfiable by Exception or Reply as being to the behove of the Debitor or his eldest Son for the sums that were truly payed out by the Act of Parliament 1671. Albeit the Apprizing was Expyâed Ibidem An Apprizing was Sustained though it proceeded on a Bond payable upon Requâsition and that the Claim of the Apprizing did make mention of the Requâsition seing the Requisition was done and is now produced and though the Messenger having met at the dyet appointed for the Apprizing did adjourn the Court of Apprizing till the next day in respect of a great Rain and that the place designed for the Apprizing was upon the open Field and though the place of the Apprizing was by diâpensation neither at Edinburgh nor at the Head Burgh of the Shire and past as a common Bill of course Iuly 12. 1671. Heirs of Lundy contra the Earl of Southesk and others In Apprizings Messengers are prohibite by Act of Sederunt to continue the dyer of Apprizings except upon absolute necessity that Parties interressed be not put to uncertain attendance and likewise diâpenâations for the place of Apprizings is prohibite to be past of course amongst other common Bills without being Read Ibidem An Apprizing acquired by the appearand Heir of the Debitor was found satisfiable by any other of the Defuncts Creditors by paying what the appearand Heir truly payed therefore albeit the appearand Heirs Disposition was before the Act of Parliament 1661. seing his Infeftment by which the Right real is Established in his Person and his Author was Denuded was after the said Act and albeit the Apprizing was not expired when the appearand Heir acquired Right but that it became to expire continuing in his Person and that it was Redeemable within ten years from the date of the acquiring but not from the expiring of the Legal Iâne 21. 1671. Maxwel of Nether-pollock contra Maxwel of Kirkconnel An Apprizer was found not obliged to restrict his Possession to his Annualrent in favours of posterior Apprizers by the Clause for Restriction in the Act of Parliament 1661. which is personal and peculiar to the Debitor but seing the first Apprizer would not admit the posterior Apprizers to possess he should be comptable for the whole Rental from the time of the Exclusion Iuly 28. 1671. Murray contra Earl of Southesk and others ARBITERS got Warrand on a Supplication to Cite Witnesses before them Ianuary 6. 1670. Ker of Cavers and Scot of Goldenberry Supplicants ARRESTMENT was not elided because the sum arrested was discharged before the arrestment seing it appears the Discharge was not delivered to the Party in whose hands the arrestment was made nor none to his use before the arrestment December 13. 1661. Boyd contra Lairds of Niddrie and Edmonstoun An Arrester and an Assigney competing the Assigney was preferred because the Arrestment was loosed albeit the sum Arrested remained still in the same hands because the Arrestment was on a dependence and no Decreet thereupon against the principal Debitor Iuly 4. 1661. Raith of Edmonstoun contra Laird of Niddrie and Lady VVolmet Arrestment cannot be loosed without Caution super cautione juratoria Iuly 16. 1661. Colledge of St Andrews Supplicant Arrestment was found not to affect the Sallaries of the Lords and the Kings Pensions conform to a Letter and Act of Sederunt February 18. 1662. Sir Robert Murray contra Arrestment Execute on the Sabbath Day was found null by Exception February 3. 1663. Oliphant contra Dowglas of Dorâoch Arresters Competing the second being on Letters of Supplement against a Party ouâ of the Countrey was preferred to the first being at his Dwelling Place without Supplement Ianuary 20. 1665. Lord Lowre contra Givon Arrestment on a Bond not Registrate was found looseable as not being on a Dââreet of Registration or any other and after the loosing the Arrester was found preferable to a posterior Assigney seing the Money was yet in his Hand in whose it was Arrested February 7. 1665. Grahame contra Brown and Doctor Martine Arrestment being laid on in the hands of a Party who Entred in a Minute or Bargain of Land though he passed therefrom yet the price was ordained to be made forth-coming November 23. 1665. Campbel contra Doctor Beatoun Arresters having both obtained Decreet in one day were found not to come in equally but the first Arrester was preferred have done equal diligence February 1. 1666. Collonel Cunninghame contra Lyel An Arrester and Comprizer Competing for a Sâm whereupon Apprizing was led at the Instance of the common debitor whereupon no Infeftment followed yet the Arrestment upon the said first Apprizers debt was not âound habilis modus to make forthcoming the Sum Appryzed for but the second Appryzer was preferred to the Arrester February 22. 1666. Lockhart contra Lord Bargenzie An Arrestment was found to give Action after the death of the debitor whose Goods were Arrested without a new Decreet against any Repreâenting him seing he died at the Horn and so could have none to Represent him in mobilibus February 19. 1667. Givon contra Hume here the Defuncts Donator to his Escheat concurred An Arrestment of Annualrents laid on currânte termiââ was preferred
suâeable to their condition but for the superplus and if the provision was exorbitant not only the Wife but even the Husband is lyable in quantum lucratus est December 23. 1665. Inter eosdem A Husband receiving a sum provided to his Wife for her use Ornaments or Abuilziaments or any other use she pleased excluding the Husband and his jus mariti was found to exclude the Wifes Executors seing the husband sufficiently furnished his Wife and the Granter of the Provision freely made payment to the husband February 12. 1667. Executors of the Lady Piltoun contra Hay of Balhousie A Husbands Escheat falling by being denunced as husband for his inâerest upon his Wifes Bond not subscribed by him and only at the Mercat Cross of Edinburgh he residing out of the Countrey was found not to be Liberate by the dissolution of the Marriage February 25. 1668. Lord Almond contra Dalmahoy A Husband was decerned for his Wifes debt as being holden as confest upon refusing to give his oath of Calumny whether he had just reason to deny what his Wife had declared upon Oath the Decreet for that reason was Reduced February 26. 1668. Grahame contra Touris and her Husband A Husband having Married a Taverner who after Proclamation of the Marriage had bought twelve Hogsheads of Wine and the Pursuer having intented Action against her and him as Husband she dyed within four moneths after the Marriage the Husband delivered the Keys of the Sellar to the Magistrates and Inventared the Wines and abstained from intromettâng the Husband was not found lyable for what was vended before the Marriage nor for what remained unfold after his Wifes death but the burdeâ of probation was put on the Husband to prove what was vended before and what remained after the Wifes death otherwise to pay the whole November 25. 1668. Andrew contra Corse A Husband Ratifying his Wifes Disposition to her Children by the first Marriage though after Proclamation it was âound valide and not Revockable as Donatio inter virum uxorem February 15. 1669. Hamiltoun contra Banes HYPOTHECATION of the profites for the Rents was found to prefer a Town setting their Customes as to the duty due by a Subâacksman therfore though not to the Town but to the principal Tacksman and though a Creditor of the Tacksmans had arrested the Sub-Tack-duty for the Tacks-mans debtâ the Town using no diligence till they were called in a double Poynding yet were preferred Ianuary 31. 1665. Anderson c. contra the Town of Edinburgh Hypothecation of the Fruits of the Ground for the Rent of the same year was found valide to the Setter of a Fishing against the Doâatar of the Tenents Escheat who had intrometted therewith and was found lyable to restore Iuly 4. 1667. Cumming of Alter contra Lunâdâan IGNORANTIAâIVRIS non excusat etiam in mulieribus as that a Bond moveable in the Wifes Name belonged to the Husband Iune 16. 1664. Murray contra IN AN IMPROBATION a party user of a Writ challenged but not produced by himself was admitted to abide thereby qualificate viz. That he used it as a Writ produced by another which was in his favours and knew nothing of the Forgery thereof Iuly 24. 1661. Laird of Lambertoun contra Earl of Levin and Kennedy Improbation of a Writ by Exception being proponed and an Act extracted the Defender was not admitted to alleadge nullities quia exceptiâ falsi est omnium ultima Iuly 3. 1661. Peacock contra Baillie In an Improbation testimonies were published to both Parties and the Defender was made closs Prisoner Iuly 26. 1661. Lambertoun contra Kennedy Improbation was found necessary to be continued though it bear an express priviledge without continuation which was thought to pass of course contrary to form February 7. 1662. Laird of Auchinbreck contra Mcleree In an Improbation after Articles indirect for improving and Articles approving and a Dispute in Writ thereon and Witnesses hinc indâ examined on all before discussing the Relevancy and the Testimonies closed and new Articles hinc inde and a Dispute in Writ thereon the Parties were heard viva vocâ and then all advised Iuly 11. 1662. Laird of Lambertoun contra Earl of Levin and Kennedy In an Improbation a Writ was improven though two Witnesses in it were alive and examined thereon and deponed it was his Subscription the other deponed it was like his when he was young seing the Writ was null for want of the Designation of the Writer and other presumptions against it and seing none of the Witnesses remembred that they subscribed or that they saw the Party subscribe so thaâ their Testimonies were held no more but as de credulitate that this was their subscription seing no âân could possibly swear but that this might be âenâied by some other not remembring of his subscription neither was holograph Writs found sufficient to astruct and many Witnesses Deponing these were the hand Writ of the Parties yet seing they Deponed not that they saw these written by the Party it was but like the other that these were so like his âand as that they believed it to be the same which therefore would have proven if there had not been contrary presumptions and evidences proven here some of the Lords were unclear that this Improbation could absolutely âmprove as false but that the Writs never having been in the Creditors hands and long keeped up by the producer suspecta fama and many presumptions contrary proven it might conclude the Writs suspect and not authentick and probative but not to be forged or false which infeâs pânam saâguinis and ought to be on clearer probation then such presumptions Iuly 14. 1662. Inter eosdem Improbation of Rights of Lands was found not to be sustained upon the Advocates concourse without the Kings special Warrand albeit it was of Kirklands erected wherein the Pursuer stood infeft as Superiour till he were Redeemed by the King by the Act 1637. and 1661 anent Erections Iune 24. 1664. Laird of Prestoun contra Alred Here some of the Lords remembred the like done in the case of Hopes Goodson when he was Advocate Improbation being Sustained by exception against an assigney it was found sufficient that the Assigney abode by the Writ delivered to him as a true Writ and that he knew nothing to the contrary and producing his Cedent to bide by it who though alleadged to be Bankrupt yet was not obliged to find caution nor go to Prison but only to enact himself to appear judicially whensoever any thing that might infer the falshood of the Writ was referred to his Oath and his being holden as confest should be effectual to prove both against Cedent and Assigney Ianuary 3. 1666. Grahame and Iack contra Bryen Improbation being sustained by exception and Terms assigned to the Defender to improve and to the Pursuer to abide by the Write after the Term was come the Defender was admitted to propone payment by Bill the Act not
as to their Lands and Goods in Scotland though they reside and ãâã abroad and no nuncupative Testament there can exclude the nearest of kin hâre Ianuary 19. 1665. Schaw contra ãâã The Law of England was found to reach the manner of probation of a Bond made there by an English-man to a Scots-man residing ãâã after the stâle of England and that payment to the Cedent was probable by the Cedents Oath and payment also probable by Witnesses Iune 28. 1666. Momârlane contra Lord Melvil Yet a Bond by a Scots-man to an English-man in England after the stile of Scotland Registrable there was found Regulate by the Law of Scotland and noâ taken away by Witnesses Ibidem A LEGACY of an Heretable Right was found null though in leâge poâstie February 21. 1663. Wardlaw contra Frazer of Kilmundie A Legacy leât of 600. merkâ and in part thereof the Executors ordained to Discharge or give Back-bond of 200. merks due to the Testaârix which Bond was found to belong âo the Husband jure mariti and that being Moveable the Wife had but her half of it yet the Lords found that the Executors ought to make it upâ to the Legataâ as lâgâtum rei aliena scienter legatâ for that being a palpable principle in Law they could not excuse the Wifes ignorance therein Iune 16 1664. Murray contra Executors of Rutherfoord A Legacy being special was found not to be abated proportionally with ordinary Legacies in case they exceed the Deeds part Iuly 21. 1665. Sprââl contra Murray A Legacy of a Bond in special was sustained though the Executor had an Assignation thereto from the Defunct seing the same Legacy might be made up of the ãâã Gear as being lâgatum rei alienâ seing it was presumed that the Defunct remembred his own Assignation Iune 24 1664. Falâânâr contra Mcdâwgal LICENCE to pursue was sâstained without Confirmation though granted after the principal Testament was Confirmed being to a Creditor Iune â0 1665. Stevinson contra Crawfoord Licence to pursue was sustained after Confirmation of the principal Testament and before Confirmation of Datives ad ommissa February 21. 166â Scot of Clârkingtoân contra Lady Clârkingtoun AFTER LIâISCONTESTATION Alleadgeances instantly verified are receivable Iune 24. 1663. Bruce contrâ Laird of Strââchan Litiscontâââation being made before the Commissars at a parties instance as Factor it was found relevant against that party pursuing as Executor Creditor being instantly verified February 10. 1663. Crawfoord contra Creditors of Inglis LOCVS PENITENTIAE was found to have no place in an agreement to take a lesâ sum it being as pactââ libâratoriâm though writ was not interposed others of the parties Transactors having payed conform December 12. 1661. Hâpburn contra Hamiltâân of Orbiâââum The like in restricting an annualrent to a part of the Lands âffected February â 1666. ãâã contrâ Hunter and Tennents of Cambâ Locus ãâã was found competent to one who had bought Lands though he had written that he thought he could not be able to keep the Bargain and furnish the Money yet subâoyned that he would not pass from the communing and albeit he had received the Keyâ of the House seing there was neither Minute nor other Wâât drawn up âhâreupon Ianuary 28. 1663. Mântgomry of Skâlmorly contra Brown THE LORDS Sallatles or the Pensions of the King are not arrestable conform to a Letter of the Kings and Act of Sederunt February 8. 1662. contra Murray The Lords found themselveâ competent to Iudge the Nullities of the Decreets of the Commission for Plantation of Kirkâ which werâ visible and instantly vârified and needed no Reduction as that a Decrâet against an Heretor not called was null Ianuary 16. 1663. Earl of Roxburgh contra Kinnââr The Lords found themselves competent to Iudge upon the Iustice Generals Decreet for Assythment which hath but a civil effect for damnage December 16. 1664. Innes contra Forbâs of Tolqââânâ The Lords gave warrant Summarly upon Supplication to take the person of a Bankrupt who was unexpectedly and fraudfully fled Novâmbâr 30. 1665. Creditors of Masson Supplicants The Lords albeit they are not Iudges in Causes Criminal yet they found themselves coâpetent to Advocaâe a Criminal Cause of Theft but upon the old Act of Parliament of King Iamâs the second from â Sheriff to the Iustice General February 21. 1â66 contra Sheriââ of Invârnâssâ The Lords deposed a Writer to ãâã âigneâ for inserting an Article for possessing a party in Letters of Horning having no warrand for the said Article Ianuary â 1669. Zeaman contra Monreiff The Lords upon a Bill for Horning upon Excommunication allowed the party Excommunicate ãâã object against the Groânds of Excommunication who having founded upon an appeal to the King and Council The Lordâ having had an account from the Council that they had Remitted that matter to the âishop did pass the Hoââing Iuly 6. 1670. Archbishop and Presbytery of St. Andrâwâ contra Pittillâ LVCRATIVE SVCCESSOR was not inferred by a Disposition and Infeftment to the behove of the appearand Heâr but only in so far as was Lucrative ãâã valorâm Ianuary 14. 1662 Harper contra Hume of âlandergast Lucrative Successor was not inferred by a Disposition by an Vncle to his Nephew the Brother being alive who was not found alioqui successurus as in the case of an Oye November 22. 166â Scââ coâtra Bâssâwel of Auchinleck Lucrative Successor was inferred by an Assignation of an Heretable Bond by â Father to his eldest Son who would have succeeded him as Heir therein and that the same was not alike with Bonds of Provision wherein in Father ãâã only Deâitor to the Son Dâcâmbâr â 1665. Edgar contra Colvil Lucrative Successor was not inferred by accepting of a Tocher yet so as if the Tocher were exorbitant both Husband and Wife were found lyable to the Fathers Creditors for what was above a competent Tocher December 23. 1665. Burnet contra Lepers LIFE being presumed was taken off by the Parties being ââ years out of the Counârey and commoâly âolden anâ ãâ¦ã There waâ also a Letter produced by a ãâã in the Waâ bearing that the party was dead February 18. 1670. Lowry contra Drummond LIFERENTERS of an annuaIrent waâ found Iyable for publick burden with the ãâã albeit the Act 164â thereanent was Rescinded as being due in jure Iune 18. 166â Fleming contra Gillies A Liâerenter being Infeft in a Liferent of Lands cum mâllândiniâ was found to have right to a Miln builded thereafter upon the Land by her Husband but not to the abstracted Multures of his Lands except the Liferent Lands February 16. 1666. Lady Otter contra Laird of Otter A Liferenter being by her Contract ânfeft in Lands obliged to be worth such a Rent besides Teinds and Feâ-duties or at her option the heir was obliged to accept a Tack of the Lands for the like sum of free Rent by free Rent was not only understood free of Feu and Teind Duty as is exprest in
of his Rent and also Discharges of publick burdens unless by writ or his Masters Oath he prove they were not allowed December 2. 1664. Veatch contra Paterson Presumption that Tickets of publick burdens were allowed to Tennents in their Rent was sustained to elide the Tennents pursuit thereon for payment thereof albeit his Tack bear a clause to relieve him of all publick burdens Here the Tennent left the Land several years before the pursuit and never did any diligence to get these allowed but it was sustained by the Masters Oath that these were not allowed December 20. â664 Paterson contra Veatch Presumption of a Wifes Warrand to borrow a smal sum and impignorat a Bond therefore was sustained she having the Bond in her custody February 4. 1665. Paterson contra Pringle PRIVILEDGE of Burghs to arrest persons of find Caution of answer as Law will was found to extend to the Pear of Leith as a part of the Burgh Royal of Edinburgh its priviledge and if done by the Water Baillie but not if in the Burgh of Batony of Leith or by the Baron Baillie Ianuary 18. 1663. Hamiltoun contra Mitchel and Keith Priviledge of Burgh was âound not to extend to Incarcerat unfreemen found within their Burgh till they find Caution as Law will albeit by a former Decreet they were Decerned to desist from Merchandice competent to free Burrows and that thereby they might only seize upon these Goods by the Act of Parliament Ianuary 30. 1663. Town of Linââthgow contra Borrowstounness PROBATION of immemorial possession or Custom was not found instructed by a Decreet mentioning a former Decreet wherein the same was proven unless the Testimonies were extant or produced December 13 1664. Bishop of the Isles contra Hamiltoun Probation of a Disposition being onerous to exclude âucrative Succession and absolvitor thereon in a Process was not found sufficient as repeated from another Decreet not being de recentâ except it had been after a long time when Witnesses were dead and in that case their Testimonies if extant behoved to be seen again Ianuary 6. 1665. contra Edmonstoun of Carden Probation of a Defense was admitted partly by Oath what was the Cause of the Bond and partly by Witnesses that the condition thereof was contraveened Iune 15. 1665. Aikman contra Probation of the Delivery of a great bargain of Victual was not inferred from the Declaration of a person intrusted by the Debitor to receive it seing there was a time limited to obtain his Declaration after which his condition and trustinesse might change and could not perpetually oblige the Intruster Iuly 18. 1667. Executors of the Earl of Dirletoun contra Duke of Hamiltoun Earl of Crawfoord and others Probation was found to be according to the most pregnant Testimonies though others Witnessed a greater quantity this was in a matter old and in the estimation of âosse November 23. 1667. Lord Iustice Clerk contra Laird of Lambertoun Probation by one Witness and the Oath of the Pursuer in supplement in favours of a party who had been absent âut of the Countrey in the Kings Service pursuing for his share of a Ship and Goods against the remnant Owners medled with by them in Anno 1638. was sustained by the Admiral but Reduced by the Lords and the Pursuer ordained to adduce farther probation February 12. 1668. Captain Strachan contra Morison PROCESSES being Dispute to the full in presentâa The Lords by Act of Sederunt ordained the Clerks not to give up the same or any Process Dispute at full though there were no Interlocutor thereon But ordained it to be keeped till the Dispute were advised and Interlocutor pronunced Iune 6. 1665. Town of Edinburgh contra Thomson PROMISE to relieve a Cautioner who relieved the promisers Goods of poinding was found not probable by Witnesses though within an hundred pounds where the promiser was dead Iuly 3. 1668. Donâldson contra Harrower A Promise by a Wife after her Husbands death never to quarrel a Tack of Liferent Lands which was in Writ for several years was found to exclude her and not to be as a verbal Tack valide only for a year but as pactum de non repugnando Ianuary 8. 1670. Scot contra Murray A PRO-TVTOR being an Overseer intrometting with the Pupils Bondâ was found only lyable for the whole Bonds received by him though he uplifted the annualrent of a part of them only and for the annualrent thereof but not for any other means or Estate of the Defunct because there was no antecedent Law or Rule to oblige him but an Act to Sederunt was ordained to be made and published that all persons âedling so in the future should be lyable both for intromission and omission as Tutors Iune 10. 1665. Swinâoun contra A PRYZE Ship was found not justly taken belonging to a Prince holding of the Kings Enemies unless he contribuâe to the War Ianuary 4. 1667. Harison contra Laird of Ludâuhurn A Prize Ship was liberate belonging to Neuters not the Kings Enemies nor Alies albeit carrying Counterband-Goods unless it were proven that the War was known at the place they âoâsed from when they loused and that Acts of Hostility and declaring Prizes in Neighbouring places was not sufficient without publication of the War or knowledge thereof Iuly 23. 1667. Iurgan contra Captain Logan A ârize Ship was found justly adjudged as carrying Counterband-Goods albeit a Swedish Shâp and by the Swedish Treaty such Counterband-Goods were allowed to the Sweds which was only understood they being the gâowth of their own Countrey Iuly 27 and 31. 1667. and November 6. 1667. Packman contra Captain Allan A Prize being taken pursued by two Privateers was âound equally to be divided betwixt both and not according to the proportion of their Guns seing the least and lightest of the Frigots did Seaze when the other was at a considerable distance and his concoârse and conâortship though made without consent or special Commission from the Owners being both in precinctâ belli and profitable for the security of either party February 7. 1668. Cuningskie contra Captain Mastertoun Prize Ships being Questioned as having in them the product of Coânterband-Goods carried in to the Kings Enemies in the same Voyage from which the Ship was returning was found not sufficient by the Tenor of the Admiral of Scotlands Commission bearing Warrant to seaze if the product of Counterband-Goods in that Voyage were found but by the Law and Custome of Nations and therefore the Lords granted Commission to âry the Custome of Holland France England and Spain February 21. 1668. Packman contra Allan A Prize being taken upon probable grounds and adjudged by the Admiral the Kings tenth part and Admirals fifteenth part being payed and the Goods sold the Decreet of Adjudication being Reduced the privateer was found lyable but for the value that the Goods might have given by rouping if they had been preserved and sold when and where they were adjudged February 24. 1668. Captain Mastertoun
contra Strangers of Oââend but the Kings 10th part and Admirals 15th part were not allowed A Pryze Ship of Hamburgh taken as carrying Counterband-Goods to the Daâes after Acts of Hostility betwixt the King and them was liberate because she was taken before the Proclamation of the War against the Danes but the Captain was found to have probable Ground to Seaze and was found only lyable for what profite he had made of the Ship and Goods unless he had been thâ culpa by the spoiling or mis-appryzing thereof February 25. 1668. Merchants of Hamburgh contra Captain Disâingtoun A Pryze Ship belonging to the Sweds was found Warâantably taken because she was Navigat with Hollanders the Kings Enemies contrary the Kings Proclamaâion of War albeit they hâd a pass conform to the Swedish Treaty wherein it is permitted to the Sweds to make use of Hollanders as Masters he becoming a sworn Burges of their Town without mention of what Nation the remnant company mighâ be of February 25. 1668. Owners of the Ship called the Castle of Riga contra Captain Seaâoun A Prize Ship was found justly adjudged because a great part of the company were Hollanders in respect of the Kings Proclamation of War ordaining Ships to be taken that had in them any number of men or goods belonging to Enemies albeit the Ship was a Swedish Ship and had a pass conform to the Swedish Treaty which bear that such a pass being found there should be no further inquiry in men or goods âisi gravis suspitiâo subsit seing that Treaty bear a liberty to the Sâeds to have a Hollands Master becoming a sworn Burges of any Town of Sweden and had no such priviledge for the mariners Iune 30. 1668. Paterson contra Captain Anderson A prize Ship was found justly taken being insisted against on several grounds as having a number of the Kings Enemies the Hollanders Sailers being only proven to be three and the company nine as having been two years with the Kings Enemies Merchandizing but not in the War and by having a small parcel of Tar as Counterband in the same Voyage upon all joyntly the Lords declared but not upon any point alone Iuly 9. 1668. Captaââ Allan contra Parkman In prize Ships competent and omitted as a particular custom of Scotland was not sustained against the strangers but they were found to have the benefite of the Law of Nations Iune 15. 1669. Loyson contra Laird of Ludâuharâ and Captain Wilson A prize Ship declared as carrying Counterband having on Board Oak cutted at three foot and an half for making Barrels in respect the Admirals Commission bear Clapboard as counterband though Testimonies from the Admiralities of England Holland and Flanders were produced that such Timber was not accompted counterband a great number of the Lords being of a contrary judgement Iune 29. 1669. Captain contra A prize Ship being in question which being alleadged to be fraughted from Norway to London with Timber by the Kings proclamation warranding Ships even of his Enemies Countreys to be imployed for bringing Timber for the Rebuilding of London they getting certificates and passes from the Duke of York the Ship having on Board 1500. Dails not belonging to the London Merchants the same was found sufficient to confiâcate the Ship and these Dails but not to confiscate the Cargo belonging to the English Merchands if he could produce a pass conform to the Proclamation and the Kings Letter bearing that he was sufficiently informed that this Ship had a valide pass and therefore ordering her to be restored was not found Relevant to liberate the Ship or Merchants Cargo without production of the pass but the Letter was understood to be âalvo jure not proceeding upon the hearing of parties albeit the Duke of York did asset that he had formerly given a pass to that Ship Iuly 13. 1669. Captain Wood contra Neâlson here the Skippers Testimony alonâ was received to prove against the Owners A prize Ship being adjudged by the Admiral and the Decreet being quarrelled because the Skipper had a pass declaring the Ship and Goods wholly belonging to the Sweds the Kings Allys the pass was conform to the Swedish Treaty which clears expresly that where such passes are âeqâid amplâs exigatur in bonâ aut homines nullo modo inquiratur The adjudication was sustained in respect that the pass by the oath of the Skipper and company was found to be a contrivance and there was no sufficient probation that the Ship and Goods belonged to the Sweds and that the Treaty bears si qua gravis suspââio subsit that seazure may be made Iune 29. 1671. Burrow contra Captain ãâã A PVPILS person was found to be keeped by her Mother who was Widow till her age of eleven years and then by a Friend of her Fathers side but not by the Tutor who was nearest to succeed February 6. 1666 Laird of Dâry contra Relict and Daughter of his Brother RATIHABITION Vide Clause Ianuary 9. 1663. Mason contra Hunter RECOGNITION committed by a Defunct's alienation was not stopped upon the priviledge of Minority quo minor non tenetur placitare c. February 19. 1662. Lady Carnagy contra a Lord Cranburn Recognition was not clided because as importing ingratitude which is criminal it was purged with the death of the Committer but was sustained against his Successor Ibidem Recognition was found to be incurred by alienation of Ward Lands albeit the Seasine taken was without the Acquirers Mandat subscribed but by a general Mandat out of the Chancellary seing it was taken by his Grand-father giver of the Alienation and albeit the Disposition bear only âailing of the Disponers Heirs of his Body seing it had a Warrand for seasing this party de preseâti nominatim nor was it reduced upon Minority to annul the Seasine and shun the Recognition Ianuary 30. 1663. Inter eosdem Recognition was incurred by giving an Infeftment base to a Grand child not being then alioqui successuruâ of Ward Lands though Taxed Ward and though granted to Heirs and Assigneys which was only understood that the Disposion Charter or Precept before Seasine might be assigned but not after nor was it respected that the Seasine as not Confirmed was null nor that it implyed a tacit condition that the Superior consented nor that the Giver was an illiterat person and the case dubious here the case was favourable for the Donatar who was the Disponers eldest Daughter and who was past by and the second Daughters Heirs though strangers were preferred in all February 5. 1663. Inter eosdem A Donatar of Recognition granting a Precept to a Vassal in the Lands falling in Recognition acknowledging that Vassals predecessors Right and his own in the ordinary Terms of a precept of clare constat albeit the precept did also bear in obedience of Precepts out of the Chancellary yet the same with the Seasine following thereon was found to exclude the Donatat and all deriving Right from him thereafter Iune
who behoved to serve to the last they saw infeft and therefore the Lords reduced Iuly 7. 1663 Mow contra Dutches of Balcleugh A Retour being called for to be reduced as proceeding without warrand or probation and nothing being produced but the Brieve Executions and Service but no Witnesses having deponed on the propinquity of Blood and none of the Inquest having declared so on proper knowledge The Lords would not therefore annul the Service but ordained the Inquest to be cited to give their oaths on what ground they served February 24. 1665. Mercer of Aldie contra Cowan Retoures of Heirs are not reduceable unless they be quarrelled within 20. years by the special Act Parl. 1617. thereanent which was only found to relate to Retoures deduced since that Act but by the general Act of Prescription 1617. the action of Reduction of Retoures quando ecunque deduced prescribes if not quarrelled within 40. years November 28. 1665. Young contra Iohnstouns Vide Heir A Retour of five years possession of a Foâefaulted person was not sustained to be Reduced by way of ordinary Action but by a Summons of Error in Latine under the Quarter-Seal though such Reduction were oft timeâ allowed before Iune 28. 1667. Hume contra Creditors of Kellâ A REVERSION granted by a person obliging a buyer to dispone to the Seller was found to extend to the Disponers Heirs though not exprest seing the ordinary Clause of paying the sum in the Disponers own time was not adâected and it was held but as an omission non dedita opera that Heirs were not exprest Ianuary 9. 1662. Earl of Murray contra Laird of Grant A Reversion was not âound null not being Registrate before 1617. by the Act 1555. which was found in deâuetude Iuly 5. 1666. Earl of Hume contra his Wodsetters A Reversion bearing payment at the Wodseââers House at London was âound satisfied by Consignation at Edinburgh where his Successor dwelt February 1. 1667. Creditors of Murray contra Murray A Reversion to a person and the Heirs of his Body was found âufficient to redeem by that person albeit he had before asâigned the Reversion and disponed the Land to another February 1. 1667. Earl of Tillibardin and Sir Iohn Drummoâd contra Murray of Ochterâyre A RIGHT REAL of Lands was found not burdened with a provision in the Disposition that the Lands should be affected with such a sum against an Appryzer or singular Successor Ianuary 25. 1664. Colquhoun contra Adamson But thereafter this case being considered and the Clause for payment in the Infeftment the Father who granted it being in possession it was âound relevant against the singular successor till it were performed November 7. 1606. Inter eosdem SALMOND FISHING in a River was found not to impede the letting out of a Loch into that River though hurtful to the fishing as was the Lords opinion but because it was a reference from the Parliament who might make a Law thereanent The Lords granted Commission to visite before answer Iuly 1. 1661. Mayor of Bervick contra Laird of Hayning Salmond fishing by Câuives was found valide by an Infeftment to a Burgh cum piscationibus piscariis without special mention of Salmond fishing or Cruives cled with immemorial possession and which Cruives the Burgh was suffered to change from one part to another within their own bounds being without preâudice of the other fishings above or putting them in worse condition then they were before with the former Cruives and being but one Cruive Dyke whereof the Lords would not determine the height or whether it should be stopped or not but seing they possessed immemorially the former Dike this was to be made conform in all points and found that the Hecks ought to be three inches wide and not five and that the Act of King ãâã the 4th bearing five was an Error in relating a former Act of King Davids there being no such Act amongst his Acts but there being one Act of King Alexanders amongst his Acts for three inches it was âound that that should have been related as the Rule and that Saturndays slop should be keeped of all the Cruives and not of one only in the midle stream by opening an eln in each Cruive pulling up the Hecks thereof and that from Saturnday at six a Clock till Munday at Sun rising and ordained the common custom to be proven the hinc inde concerning a constant open midle stream which was not repeated in King la. 6. his Act nor had the Lords respect âo the Ratifications of these Acts purchased in the Parliament 1661. being impetrate by private parties not Printed or past the Articles or done in the stile of a general Law Ianuary 26. 1665. Heretors of Don contra the Town of Aberdene SATISFACTION of an Appryzing and of the sums whereupon the same proceeded was admitted by Exception upon what sums the apparent Heir to whose behove the right returned payed out therefore and that by intromission and present offer of what remained after compt and reckoning albeit the pursuit was not upon the Appryzing but a Reduction on an Inhibition upon the Bond whereupon the Appryzing proceeded Iune 28. 1671. Forbes of Watertoun contra Shein Vide Appryzing A SEASINE on an appryzing within Burgh was sustained though not given by the Baillies but by the Provest nor by the Town Clerk but by another Nottar because the Baillies and Clerk were excluded by the English for the Tender Iuly 3. 1663. Thomson contra Mckitrick A Seasine not registrate of a Liferent to a Wife was found valide against the apparent Heir of the Granter though brooking by a prior Disposition seing it contains a power to the Father to dispone and grant annualrents February 27. 1667. Countess of Carnwath contra Earl of Carnwath A Seasine propriis manibus of a Husband to a Wife who had no Contract of Marriage nor other provision and had disponed a former Liferent to the behoof of the Husband was found a sufficient Title without a warrand or Adminicle in writ in respect of the Marriage and Duty of the Husband to provide his Wife Iune 19. 1668. Relict of Garigs contra Wallace of Garigs A Seasine within Burgh under the Clerks hand was sustained without necessity to ãâã it was regiâârate in the Town Books in reâpect of the Exception in the Act anent Registration of Seasines within Burgh not requiring them to be registâate in the Towns Books Iune 30. 166â Burâet contra Swan The âike though the Seasine was by the Sherifâ Clerk there being no Town Clerk in Office Iuly 21 1666. Thomson contra Mckiârick A Seasine propriâs manibus albeit sustained to a Wife without one Adminicle who had no Contract of Marriage and had at that time quite her loynture by a former Husband to the Husbands Creditors yet two of the Witnesses being positive that they were never Witnesses to any Seasine given to her a third deponing he remembred not a âourth abiding by the
valide as to the Taxation it self imposed but without power to add any thing for future expences by the stent but that the Taxation behoved to be âifted gratis if payed without a charge and if there were a charge the Lords would modifie competent Expences but did not allow an Imposition to be added to the Taxation December 15. 1666. Lord Colvil contra Feuers of Cââlross Taxation 1633. was found discharged by a general discharge to the Sheriff in the Clerk of Taxations Books without showing the Sheriffs Discharge to the particular Heretors December 6. 1667. Duke of Hamiltoun contra Taxation was found to affect these contained in the stent Roll seing they conveened not and were stented albeit if they had conveened they could have freed themselves their interest being Teinds wholly allocat to the Kirk ãâã 17. 1668. Steuart contra Aâcheson Taxation was found not to be due for ânclosed ground conform to the Act of Parliament 1661. and that the Act of Convention could not derogate therefrom February 29. 1668. Duke of Hamiltoun contra Maxwel of Murâith Taxation and lâan burden not singular successors Iune 25. 1668. Inglis contra Balfour Taxation was âound not to be due by the Director and Writers in the Chancellary as Depenâents on and Members of the Colledge of Iustice Ianuary 22. 1669. Collector general of the Taxations contra the Director of the Chancellary The Officers of the Mint were also found free by a late exemption eodem diâ Taxation appointed to be uplifted by Magistrates of Burglis was found only to oblige these who were Magistrates of the Burgh for the time personally by their office and that the Town nor subsequent Magistrates were not lyable for what they uplifted and made not compt for Iune 2â 1669. Pearson of Balmadie contra Town of Mountress Taxation imposed Annâ 1665. giving abatement of a third to the temporality of the Westeth Shires was found to extend to the Kings Property there Iuly 14. 1669. Duke Hamiltoun contra the Feuers of the Kings property TEINDS though valide were found not to be debitum fundi affecting singular successors ãâã 20. 1662. Earl of Callander contra Monro Teinds were found not to affect the Heretor where there was a Liferenter Iune 24. 1663. ãâã contra Laird of Glenrchie The priviledge of being Teind free competent to the Cystârtian order and the like to Templers and Hospitallers as to Lands in their own Labourage was âound competent not only to the Temporal Lords of Erection but to their Vassals Iuly 15. 1664. Crawfoord contra Laird of Prestoungrange Teind fish was found due by the Merchants who bought the fish immediatly as they were taken in whole Boatfuls in the same way as if they had intrometted with the whole cropt upon the ground they would be lyable for the Teind December 13. 1664. Bishop of the Isâes contra Merchants of Edinburgh Teinds were found due parochâ notwithstanding of the Kings Gift unless Mortification or Possession thereof were proven Iune 27. 1665. Ferguson contra Steuart of Aâheog Teinds may not be drawn summaây upon Inhibition where they were in Tack and not drawn immediatly before but a Decreet must preceed the drawing and therefore parties having a colourable Title the Teinds being so drawn obtained ed Restitution Ianuary 21. 1665. Lairds of Bairfoot and Beiâstoun contra Viscoânt of Kingstoun Teind being by long custom payed only as to the half Teind Viz. the 20tâ Lamb the Heretor or Possessor was not found lyable âs to bygones for any more February 11. 1665. Scot of Thirlestoun contra Scot of âroadmeadow Teind of Herring Killings and Ling taken in and about the Isles as the patrimony of the Bishop of the Isles was âound not to extend to Killing and Ling taken by the inhabitants betwixt Arran and Hesay they proving immemorial possession free of any Teind November 24. 1665. Bishop of the Isles contra fishers of Greenock Teinds were found not taken away by a Decreet of Parliament ordaining the Titular to âell upon payment of such a price it never being offered so that the Teinds remained due till it were payed or offered and upon refusal consigned February 2â 1669. Earl of Kinâardin contra Laird of Rosâyth Teinds of a Paroch were found to belong to the Prebendats of the Chappel-Royal without any other Title but the Books of assumption and three Presentations by the King and that fourty years possession by the Minister did not infer Prescription against the Kings Chappel in respect of the Kings interest and Act of Parliament declaring the Kings interest not to be prejudged by the neglect of His Officers but the said long possession was found sufficient to the Minister for all years preceeding the citation February 1. 1671. Ferguson contra Parochioners of Kingarth THE TENOR of an interdiction being pursued the production of the Letters of Publication was found a sufficient adminicle seing such Writs use not to be retired as Bonds Iuly 26. 166â Laird of Milntoun contra Lady Milntoun Tenors of Writs proven before inferiour Iudges was found null Ianuary 28. 1663. Laird of Balnagoun contra Mackenzie Tenor of a Registrate Bond admitted to be proved by reply was not found sufficiently instructed by an Extract under the English hands that keeped the Registers at London though his Oath was taken Anno 1658. That it was a true Extract Iuly 27. 1665. Captain Muire contra Frazer Tenor of a Contract of Marriage containing Clauses extraordinary as that the half of the Mans money should befall to the Wife in case there were no Heirs betwixt them was not sustained without Adminicles in Writ albeit the Tenor of it was insert in the stile Book of him that Wrote it and the Tenor was offered to be proven by the Writer and Witnesses insert and though it was offered to be proven that the Husbands whole means came by the Wife Iune 13. 1667. âarrower contra Hartlay TERCE was found not to extend to a Bond bearing a clause of Annualrent without Infeftment had followed Iune 24. 1663. Scrymzeor contra Murrayes A Terce was not found taken away by an Infeftment in Liferânt not beaâing in satisfaction of the Terce albeit the Liferent was competent and suitable to the parties condition and there was never a Contract extended betwixt them but a Minute Ianuary 27. 1666. Criââtoun and Eleis her Spouse contra Maxwel of Kirkhouse A Terce was found not to extend to Teinds not constitute by Infeftment but was found to extend to a grass yeard let to Tennents it not being a Garden or Orchyard as pertinent of a Tower or Fortalice February 9. 1667 Moncreif contra Tennents of Nâwtoun and Zeaman Vide base Infeftment Bell of Belfoord contra A Terce was found to be excluded by a Wifes acceptance of Land in satisfaction of her Terce albeit a part of the Lands accepted proved ineffectual to her her ânfeftment by her Husband not having been confirmed by the Superiour who was preferrâd to her and the acceptance was found a
confusion the last day of the Session February 21. 1663. THE Lords of Council and Session considering how necessary it is for the advancement and honour of His Majesties service that the Judicatories intrusted in him in the principal administration of Justice to His People be attended in all their meetings with due Decencie and Respect from all His good Subjects And that the rude disorderly and barbarous carriage of some Servants attending the Colledge of Justice and others joyning with them upon the last day of the Session is dishonourable to the Authority of the Court unsuitable to the gravity becoming the Persons relating thereto and un-beseeming the civility fit for such a place have therefore thought fit to discharge and hereby discharges all Servants of any Advocats Clerks Writers or other members of the Colledge of Justice and all other Persons whatsoever That none presume upon the last day of the Session to throw or cast any pocks dust sand or stones or to make any disorder or to use any rude or uncivil carriage within the Session House or in the Parliament Closs Certifying all such who being Servants to any Members or relating to the House shall in any degree offend herein they shall suffer three moneths imprisonment and for ever thereafter be debarred the House and service thereof And if they shall happen to escape the time of the committing the offence That their Masters shall be oblidged to enter them in prison in the Tolbooth of Edinburgh within eight days thereafter under the pain of two hundred merks Scots and ceritfying all such Persons who not relating to the House as said is shall offer to offend in manner foresaid They shall be apprehended and committed to waird for the space of three moneths and thereafter banished the Town And that none pretend ignorance ordains these presents to be printed and affixed upon the most patent doors of the Session House and to be insert in the Books of Sederunt therein to remain ad futuram rei memoriam ACT in favours of the keeper of the Minut Book Iune 6. 1663. THE which day the Lords taking to their consideration an overture formerly presented to them be the Advocats in favours of Iohn Scot keeper of the Minut Book shewing that the allowance appointed to him for inrolling of Causes by the Act of Sederunt dated the 28. of February 1662. is very inconsiderable being only two shilling scots for every Process and no ways answerable to his pains and attendance thereupon In respect whereof and for the said Iohn Scot his further incouragement to continue that faithfulnesse and integrity whereof he hath hitherto given proof in discharging the said trust The Lords ordain in time coming the Parties at whose desires any Process shall be inrolled or his Agent to pay to the said Iohn Scot for every Cause that shall be inrolled be him four shilling Scots money allanerly And ordains these presents to be publickly intimate and an Act to be extended thereupon ACT concerning the buying of the Citiedeal September 8. 1663. THE Lord President having produced before the Lords a proposition made by the Town Council of Edinburgh and subscribed by Sir Andrew Ramsay Provost of the said Burgh bearing as follows viz. The Lord Provost having reported to the Committee That the Citiedeal of Leith being of late erected in a Burgh of Regality which without doubt may in time prove prejudicial to this City for many undenyable reasons And that the Honourable Lord the Earl of Lauderdail to whom His Majesty hath granted the Right of the said Citiedeal had done the honour and favour to the Council of Edinburgh as to make them an offer thereof upon reasonable terms And that they are come that length in their Treaty as that it may be had for 6000 lib. Sterling payable in four years which the Magistrats are not at all in capacity to raise or make payment of without the two third parts thereof be raised out of the Chamber of Imposition which the Council thought not fit to do without the consent of the Grand Committee of the said Imposition And therefore desired the advice of the Lord President and all others the Members of the Committee To which report and proposition the said Lord President Sir Iohn Nisbet Mr. Iohn Ellies and Robert Hay made answer That they found His Majestie 's gift so strick as they could not of themselves without consent of the whole Colledge of Justice give consent That any of the said moyeties should be imployed otherwise then to the payment of debts contracted before September 1650. Therefore the Committee thought expedient That the President Sir Iohn Nisbet Mr. Iohn Ellies and Robert Hay might advise concerning that scruple and with all conveniency report that so necessary a bargain might be brought to some conclusion The saids Lords having considered the above-written proposition in one voice do consent and give advice that the two third parts of the pryce of the Citie-deal be raised forth of the Chamber of Imposition The Seall of Court November 26. 1663. MR. Alexander Gibson produced in presence of the Lords their common Seal wherewith Commissions and other Papers which went out of the Countrey use to be Sealled which Seal the Lords ordain to be made use of in time coming And ordained the said Mr. Alexander to make the same forth-coming to the saids Lords when ever it should be required And ordains him to give the use of the said Seal to the remanent Clerks when they have to do therewith ACT against general Letters Iune 8. 1665. THE Lords considering the manyfold inconveniences arising of late from the frequent use of directing General Letters and Charges Summarly and that the same is contrary to the ancient custom whereby they were only raised upon Decreets conform Therefore the Lords do hereby revive and renew that ancient custom And Enact and ordain that in time coming no Charges nor Letters of Horning shall be direct Generally against all and sundrie except allanerly upon Decreets conform purchast and obtained be the Parties raisers of the saids Letters And prohibit and discharge the Writers to the Signet and the Clerks to the Bills to writ present or passe any Bills for General Letters and the keeper of the signet to affix the signet to any such General Letters unless the same be direct upon Decreets conform as said is Likeas the Lords declare any such General Letters that shall be raised in time coming where Decreets conform have not proceeded with all execution following thereupon to be void and null and have no affect But prejudice always of any General Letters or Charges raised or to be raised at the instance of His Majesty's Thesaurer Thesaurer Depute or others impowered for His Majesti's Rents Customs Casualities or other dues belonging to the KING'S Majesty according as they have been in use to do And also excepting any General Letters raised or to be raised at the instance of the Lords of Session for the
contribution money payable to them And such other General Letters as are expresly warranted be the Acts of Parliament And ordains an Act to be extracted hereupon and insert in the Books of Sederunt ACT for keeping the Barrs Iune 22. 1665. THE Lords considering what great confusion and disorder is occasioned by the thronging of people of all sorts within the Barrs of the Inner and utter House in the morning before the Lords sit down and at twelve a clocke in the forenoon and the prejudice arising there through by the miscarrying of Processes For remeid whereof the Lords do hereby discharge the Macers in time coming to give access to whatsomever Persons of whatsoever quality within the Barr of the Inner-house after any of the saids Lords have entred the House in the morning or after twelve a clock till the Lords be all risen off the Bench and be removed out of the House And sicklike that they permit no person whatsoever to stay within the Innermost-barr of the Utter-house where the ordinary Lord and Clerks do abide neither before the ordinary Lord come out after that the Clerks and their Servants have begun to call nor during the time that the ordinary Lord is upon the Bench neither after untill the reading of the Minut Book be ended except the persons following viz. The keeper of the Minut Book the King's Solliciter and one Servant appointed by His Majestie 's Advocat And that person appointed for reading the Minut Book during the time of the reading of the Minut Book and no longer And the Macers are hereby authorized to carrie immediately to prison any person that shal be found within any of the saids Barrs during the time foresaidâ Certifying the saids Macers that if any of them shal be found negligent in performance of their dutie in the premisses They shall forthwith be removed from their Office And ordains an Act to be extended hereupon ACT anent Pro-tutors Iune 10. 1665. FOrasmuch as in the Action of compt and reckoning depending at the instance of Robert and Bessie Swintouns against Iames Notman at length heard before the Lords of Council and Session It being questioned and debated how far a Pro-tutor is lyable by the Law and Practice of this Kingdom whether for ommission as well as for commission and intromission And the saids Lords considering That albeit Pro-tutors be excusable as to their bygon intromissions In regard it was not constant hitherto how far they could be lyable yet finding it expedient that the foresaid question should be determined as to the future and the Leiges no longer left in uncertainty thereanent Therefore the Lords declare that whatsoever person or persons shall in time coming intromet with the means and estate of any Minor and shall act in his affairs as Pro-tutors having no right of Tutory nor Curatorie established in their Persons They shall be lyable aswell for what they might have intrometted with if they had been Tutors and Curators as for what they shall intromet with de facto Sicklike and in the same manner as Tutors and Curators are lyable by the Law and Practice of this Kingdom And the Lords declare that they will observe this as an inviolable practice in time coming And ordain these presents to be published at the Mercat Cross of Edinburgh and an Act to be extended thereupon and insert in the Books of Sederunt ACT ordering no sight of Processes in the Summer Session which were seen in the Winter before November 8. 1665. THE Lords considering That through the shortness of the Summer Session unnecessary giving out and malicious detaining of Processes which have been seen the Winter Session immediately preceeding The Leiges are oftimes frustrate of Justice during that Session after much charges expenses time vexation and trouble And having it always in their thought how Justice may be speedily administrat with the greatest ease and least expenses to the Subjects Do declare that in the future they will not allow Defenders and their Procurators to see Processes in communi forma during the Summer Session where the same has been seen and returned by them the Winter Session immediately preceeding and that they will proceed to do Justice therein without indulging to defenders any such sight during the Summer Sessions in the future where there hath been no material amendments made be the Pursuers of their Summonds nor new pieces produced in the Process to be instructions and grounds thereof and which were not seen the Winter Session immediately preceeding And ordains these presents to be insert in the Books of Sederunt His Majesties Instructions to the Commissars February 20. 1666. THE Lord President having received the Instructions following from Iohn Earl of Rothes His Majesties High Commissioner did communicat the same to the hail Lords and that it was His Graces pleasure and desire that the same might be recorded in the Books of Sederunt The Lords of Council and Session ordained the saids Injunctions to be insert and recorded in the saids Books of Sederunt under Protestation always that the recording of there saids Injunctions should be no ways prejudicial to the priviledge of the Lords of Session or derogat in any sort from their Iurisdiction in civil causes And ordained the said Injuctions after recording thereof to be given up and delivered to the Archbishop of St. Andrews his Grace or to any having his warrand to receive the same And that the Extracts of the saids Injunctions be given to all Persons who shal conceive themselves concerned therein whereof the tenor follows Sic Supra Scribitur CHARLES R. HIS Majesty Authorizes and injoyns these following Instructions contained in five Leaves Attested and Subscribed by two of the late Commissars of Edinburgh for regulating the Proceedings of the Commissars in their respective Courts Oxford January 21. 1666. and of His Reign the seventeenth year By his Majesties Command Sic Subscribitur LAVDERDAIL INstructions and Rules set down and appointed by the Reverend Fathers Arch-bishops and Bishops in this Kingdom to the Commissars Clerks Procurator-fiscals and other Members of Court of the Whole Ecclesiastical Jurisdiction having Commission from the saids Reverend Fathers 1. Ye are by vertue of your Commission to decide and judge in Causes concerning Benefices and Teinds in matters of Scandal Confirmations of Testaments great and small within your bounds all Causes Testamentar and in all other matters wherein the Oath of Party is required if the same does not exceed fourty pounds And in all other Causes wherein the Parties submit themselves to your Jurisdictions 2. Ye are to Judge in Reductions and Declarators of Nullity of Marriage for Impotency or upon any other ground or reason whatsomever All actions of Divorcement for Adultery or upon any other ground All Actions or Questions of Bastardry and adherences when the samine shall have a connexion with the Lawfulness of Marriage or Adultery all which are reserved to the Commissars of Edinburgh and do belong to their Jurisdiction privative But
of Parliament 1661. anent Debitor and Creditor the Lords are impowred to restrict Apprysers to a part of their Lands Apprysed sufficient for the Annualrent and to leave the rest to the Debitor The Lords did accordingly restrict but give the Appryser his option of any of the Apprysed Lands except the Debitors House and Mains paying eight per cent effeiring to the Sum Apprysed for the Appryser being comptable for the superplus above the Annualrent and publick burdensâ Dame Margret Hay contra George Seaton of Barnes Iune 28. 1662. UMquhile Sir Iohn Seatoun of Barnes having provided George Seaton his son by his Contract of Marriage to his lands of Barnes some diferences rose amongst them upon the fulfilling of some Conditions in the Contract for setling thereof there was a minute extended by a Decreet of the Judges in Anno 1658. by which the said Dame Margaret Hay second Wife to the said Sir Iohn was provided to an hundred pound sterling in Liferent and it was provided that Sir John might burden the Estate with ten thousand merks to any Person he pleased to which George his Son did consent and oblidged himself to be a principal Disponer Sir Iohn assigned that Clause and destinat that Provision for Hendrie Seaton his Son in Fee and for the said Dame Margaret Hay in Liferent whereupon she obtained Decreet before the Lords the last Session George suspends the Decreet and raises Reduction on this Reasonâ that the foresaid Clause gave only power to Sir Iohn to burden the Estate with a 10000. merks in which case George was to Consent and Dispone which can only be understood of a valid Legal and Effectual burden thereof but this Assignation is no such burden because it is done in lecto egreditudinis and so cannot prejudge George who is Heir at least appearand Heir to his Father The Charger answered that the Reason was no way relevant First because this Provision was in favours of the Defuncts Wife and Children and so is not a voluntar Deed but an Implement of the natural obligation of providing these 2dly This Provision as to the Substance of it is made in the Minute and extended Contract in the Fathers health and there is nothing done on Death-bed but the Designation of the Person which is nothing else then if a Parent should in his life time give out Sums payable to his Bairns leaving their names blank and should on Death-bed fill up their names The Suspender answered that he opponed the Clause not bearing de presenti a burden of the Land but a Power to his Father to burden neither having any mention of Death-bed or in articulo mortis or at any time during his life and though the Dead on Death-bed be in favours of Wife and Children it hath never been sustained by the Lords in no time though some have thought it the most favourable Case The Lords sustained the Provision and Repelled the Reason of Reduction assoilzied therefrom and found the Letters Orderly proceeded Dorathie Gray contra Oswald Eodem die UMquhile Mr Iohn Oswald having Married Dorathie Gray in England did at the time of their Contract grant an English Bond of a 1000 lib. Sterling to the said Dorathies Mother and on Wilson ad opus usum dictae Doratheae the Condition of which Obligation is that if Mr. Iohn shal pay the saids intrusted Person the Sum of 600 lib. Sterling or shall secure the said Dorathie in Lands or Cattels worth thesaid Sum of 600 lib. in in his life time or be his Testament Then he shall be free of the 1000 lib. Mr. Iohn granted Assignation to the said Dorathie of 5500 merk due to him by the Earl of Lauderdale bearing expresly the same to be for Implement of the Bond and Assigning both principal Sum and Annualrent Dorathie confirmed her self Executrix to her husband gives up this Bond and obtains Decreet against Lauderdale who calls Dorathie on the one part and the appearand Heir and Creditor of the said Mr. John on the other part It was alleadged for the appearand Heir and Creditors that they ought to be preferred to the Stock of the Sum because the Clause ad opus usum could only be understood to be for Dorathies Liferent use and not in Fee and as for the Assignation it was on Death-bed and so could operat nothing in their prejudice It was answered for the said Dorathie that she opponned the Clause The meaning thereof was no other but that her Mother and Wilson were Creditors in trust to the use and behove of her and could not be a Liferent Right because it was provided to her her Heirs Executors and Assigneys and as to the Assignation though on Death-bed yet it may very well be used as an Adminacle to clear the meaning of the Parties The Lords found the Clause to carrie the Stock of the Money and preferred Dorathie and it being thereafter offered to be proven that by the Custom of England such Clauses signifie only the Liferent use The Lords repelled the alleadgance in respect of the Clause being provided to Dorathies Heirs and Assignies and in respect of the clearing meaning thereof by the Testament would not delay the Process upon the proving the Custome of England the matter being clear in the contrair William Baillie contra Margaret Henderson and Ianet Iameson Iuly 1. 1662. BY Minute of Contract betwixt Umquhile Iameson and Baillie Baillie oblidged himself to Infeft Iameson in a Tenement for which Iameson oblidged himself to pay three thousand merks of price Iameson being dead without any further progress upon the Minute Baillie pursues the said Margaret Henderson as Executrix to him and the said Ianet Iameson as Heir to pay him the price It was alleadged for the Executor absolvitor because the bargain being incompleat the Heir must perfit it and dispone the Tenement and so can only be lyable for the price for by the performance of mutual Minute the Heir will only get the Land and therefore the Executor should not be lyable for the price or at least if the Executrix be decerned to pay the price The Pursuer must dispone to her the third part of the Tenement in Fee and the two part to the Heir she being the only Child and having Right to the two third parts of the Moveables which Moveables being exhausted by the Price of the Tenement the Tenement ought to come in place of the price The Pursuer answered that he could dispone no otherwise then according to the Minute but the Executrix might betake her recourse against the Heir as she pleased but both as representing the Defunct were lyable to him The Lords decerned the Executrix to make payment and would not bring the Debitor betwixt the Heir and her in this Process for the third of the Tenement or for her Terce thereof but reserved the same as accords Breidy contra Breidy and Muire Eodem die A Contract of Marriage was sustained both against Principal and Cautioner albeit