are no wayes sufficient by her consent that the Children should be provided with the Coal was in contemplation of her eldest Sons Marriage which took no effect and the rest are meire presumptions and dato she had known privata notitia non nocet unlesse there had been some Intimation Citation or Judicial Act to put her in mala fide and especially private knowledge infers not mala fide unless it had been anterior to her possession The Pursuer answered to the last point that albeit private knowledge in some cases would not infer mala fides among strangers yet a mother knowing the right of her own Children whereof one were in her womb it puts her in mala fide seing she was thereby oblidged to have sought Tutors and preserved their Right The Lords found the Evidences sufficient to prove the Defender to have been in mala fide and therefore repelled this Defense also and Ordained the Defender to comp for the intromission but found that the charge ought not to be stated according as the profit of the Coal fell out to be but as the profit thereof might be communibus annis in regard she quat her certain Liâ—erent of the Lands for an uncertain Coal and therefore abated a fourth part of what the free Profit of the Coal was found to be by the last accompt Alison Wardlaw contra Robert Gray Eodem die ALlison Wardlaw as Executrix Creditrix confirmed to her Husband and having confirmed the Rents due to him by Robert Gray Pursuer therefore The said Robert alleadged absolvitor for a part of these Rents because payed which he offered to prove by the Defuncts Compt-book in the Pursuers hands which Compt-book is written with the Defuncts own hand and bears several Recepts payed by the Defender at several times The Pursuer alleadged that the Compt-book cannot prove because it wants a subscription and Compt-books do only prove contra scribentem in the case of Merchants who keeped exact current Compt-books which is a special priviledge of theirs and was never extended to any other case nor to any other person for a discharge subscribed before Witnesses would not liberat if it were not delivered to the other Partie much less can a Compt-book Secondly Whatever it could work against the Writter and his Heirs yet not against Assigneys or Executors Creditors who are in effect singular Successors for their own payment otherwayes no Assigney could be secure but after the Assignation the Cedent might write Receits in his Book but though he should grant a Holograph Discharge bearing dateâ— before the Assignation it would not prove against the Assigney The Defender answered that the Compt-book was sufficient to prove liberation being by a Judicious Person though not a Merchant for it could be done to no other intent then to preserve the memory of the payment made which though most ordinar amongst Merchants is no special priviledge of theirs and albeit an undelivered discharge would not be sufficient yet that being but unicum hirographum requiring delivery hath no effect without delivery but a Compt-book contains many Writs and requires no delivery and albeit it should not prove against an Assigny as neither would an holograph discharge yet it is sufficient against an Executor Creditor who can leave no Right till the Defunct be dead and so their can be no hazard of Recepts posterior to their Right and therefore against Creditor Holograph discharge would prove The Lords found that the alleadgeance of the Compt-book written with the Defuncts own hand sufficient to instruct payment of the Articles mentioned therein but seing the Defender who payed was on life and present Ordained him to make faith that he truely payed accordingly Primrose contra Duij November 22. 1662. PRimrose having pursued a Reduction of a Decreet Arbitral betwixt him and Duij The said Duij alleadged homologation of the Decreet by acceptance and payment of a Precept direct to him by Primrose for payment of a part of the Sum contained in the Decreet bearing expresly to be in satisfaction of a part of the Decreet which was found relevant and admitted to Duij's probation for proving whereof Duij produced the Precept acceptance and Discharge It was alleadged that the Writs produced proved not to the homologation of the Decreet as to the Article controverted being the fraught of a Vessel which Duij offered to prove to have been decerned to have been within the third part of the just avail and the Precept bare payment of five Dollars decerned for the deterioration of the Tackling by vertue of a promise The Lords having considered the Decreet Arbitrall and Precept found it proved not the homologation as to the point in Question because the Decreet contained divers heads The Precept bare to pay the deterioration of the Tackling and bare expresly that the same was unconâ—raverse and founded upon the Defenders promise Sawer contra Rutherfoord November 25. 1662. SAwer having Wodset some Tenements in Edinburgh to Rutherfoord wherein there was a Clause irritant bearing that if Sawer did not put Rutherfoord in possession of the hail Tenement the Reversion should expire whereupon Rutherfoord obtained Declarator of the expyring of the Reversion because Sawer had detained a part of the Tenement Sawer raised Suspension and Reduction of the Decreet of Declarator upon these Reasons First The clause irritant was punctum legis Commissaria in reprobat in Law Secondly Because by the Act of Parliament 1661. betwixt Debitor and Creditor It was declared that claules irritantâ— for not payment of the Sums in Wodsets since 1649. should not be effectual The Defender answered to the First Reason that by Act of Sederunt of the Lords in Anno 1642. Clauses Irritant and Failzies were declared effectual and albeit the Lords ex gratia are in use to suffer Parties failzeing to purge the failzie by satisfying Damnage and Interest at the Barr yet it could not now be received a Decreet in foro contradictorio To the second Reason It was Answered that the said Act of Parliament was special in relation to Clauses Irritant for not payment of the Sum in the Wodset which was stricti juris and could not be extended to this wilful Failzie in the Pursuers not removing and possessing him and for the Decreet it was in absence albeit a Supplication was given in after the Decreet desiring to be heard whereupon he was not heard but the answer to the Suplication bare that his desire was only competent by way of Susppension and Reduction The Lords found the Decreet not to be in foro contradictorio and therefore reponed the Pursuer to purge the Failzie by possessing the Defender and paying damnage but found that the Clause in the Act of Parliament reached not to this Case but whereas the Pursuer craved compt and reckoning of the profits of the Wodset Tenement by the said Act of Parliament bearing That Improper Wodsets where the granter of the Wodset is in the hazard of Publick Burden c.
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
the Houses The Lords found there was yet place to Resile and therefore assoilzied Margaret Stevenson and her Son contra Ker and others Eodem die MArgaret Stevenson pursues Margaret Ker as vitious Intromissatrix with the Goods of her Husband for payment of a Debt wherein he was Cautioner She alleadged absolvitor because her Iutromission was purged in so far as she had Confirmed herself Executrix Creditrix It was answered by the Pursuer non relevat unless before intenting of the Cause The Defender answered it was sufficient being within year and day after the Defunct's Death Which the Lords found Relevant Lord Balnagoun contra M. Thomas Mckenzie Eodem die BAlnagoun as Donator to the Escheat of his Father pursues Mr Thomas Mckenzie for the price of some Lands sold to him by his Father and for the annualrents since It was answered for the Defender that there was no Annualrent due by the Minute and albeit it was the price of Land yet Balnagoun had never made Mr. Thomas a Right to this day but had forced him to be at a huge Expenses and Plea and so was in mora that the price was not payed and albeitâ—he did possess the Lands it was by redeeming Wodsets thereupon contained in the Minute The Lords found Mr. Thomas lyable either for the Annualrent or for the superplus of the Rents of the Land more then payed the Annualrent In this Process it was found that the Probation of a Tenor before an Inferiour Iudge was null Margaret Edgar contra Iohn Murray Ianuary 29. 1663. MArgaret Edgar having Charged Iohn Murray as Cautioner for the umquhil Viscount of Stormont he Suspends and offers him to prove by her Oath that she transacted with him to accept a Decreet against the principal to free him The Charger answered that she being a Wife clade with a Husband could not swear in his prejudice The Suspender Replyed that before her Marriage he had raised a Pursuit and Cited her to hear and see it found and declared he was free of Cautionry in respect of the said Transaction and so the matter being Litigious her marrying during the Dependence cannot exclude him from his Oath but must work against her Husband who is only jure mariti a Legal Assigney The Lords found this Reply Relevant Scot contra Mr. John Dickson Eodem die SCot as Assigney by her Father to a Bond Charges Mr. Iohn Dickson to make payment he Suspends on this Reason that the Assignation being while the Charger was Wife to Scot her Husband the Sum belonged to the Husband jure mariti and therefore craves Compensation of the like Sums payed to or for the Husband The Charger answered that though the Date of the Assignation was before her Husbands Death yet her Father keeped the same in his Custody and it was not Intimate till after the Husbands Death and so the Right not being Established in the Wifes Person by Intimation could not accresce to the Husband unless the Suspender would instruct that it was Intimate before The Lords found that seing the Assignation was now in the Wifes hands they would not put the Suspender to prove the Delivery thereof during the Marriage but that it was presumed to have been delivered according to the Date and that thereby it became the Husbands jure mariti though no Intimation was in his time Archibald Stuart contra Bogle and Matthie Ianuary 30. 1663. BOgle and Matthie being Conveened before Archibald Stuart as Baillie of the Regality of Glasgow for a wrong committed upon two other Persons in the Kirk upon the Sabbath thrusting in upon them in Seat and beating them they were therefore amerciat in 200. Pounds half to the Party and half to the Fiskall It was alleadged the Fine was exorbitant and that Inferiour Courts could not amerciat above ten Pounds as it had been found by several Decisions It was answered that this Court being a Regality and the Fact so atrocius the Fine was very Competent The Lords Sustained the Decreet Town of Linlithgow contra Inhabitants of Borrowstounness Eodem die THe Town of Linlithgow having apprehended an Inhabitant of Borrowstounness in their Town being an un-free man and exercising the Trade of Merchandise they put him in Prison he granted Bond to forbear in all time coming Likeas they fined him in a 100. merks he Suspended and raised Reduction on this Reason that the Bond was extorted when so far as he was summarly taken and put in Prison and could not get out till he promised to give the Bond and immediatly after he was out subscribed the same The Charger alleadged there was no unjust force or fear because by the Acts of Parliament in favours of Free Borrows all unfree men are discharged to exercise the Trade of Merchandise whereupon they had obtained Decreet against the same Suspender to desist and cease therefrom Secondly They and all other free Borrows had immemorially possessed this priviledge to apprehend persons found within their Town and forced them to find Caution as Law will upon Debt due to any in the Town and particularly to put them in Prison till they give such Bonds in Surety as this The Suspender answered to the first there was no such Warrand by the Act of Parliament but only to Charge with general Letters un-free men to find Caution and for the Priviledge of Borrows to arrest un-free persons within their Towns it is only in case of Debts and other Merchandises due to Burgesses but cannot be extended to this Case where there is a special Order set down by Act of Parliament The Lords found that the Burghs Royal summarly upon Staple Ware of un-free men and might judge thereanent but not summarly Incarcerate their Persons but only to Charge them and found their Custom and Priviledge not to extend to this Case and therefore found the Reason of Reduction Relevant The Lady Carnagy contra The Lord Cranburn Eodem die LAdy Anna Hamiltoun and the Lord Carnagie her Husband as having obtained a Gift of Recognition from the King of the Barony of Innerweek and being thereupon Infeft pursues the Lord Cranburn to whom the samine was Disponed by the Earl of Dirletoun Grand-Father to both for declaring the Recognition and the Donatrix Right in so far as Iames Maxwel late Earl of Dirletoun holding the saids Lands of His Majesties Ward and relief had without His Majesties consent Alienat and Disponed the same to Iames Cicile his Oye then second Son to the Lord Cranburn procreat betwixt him and the Earl of Dirletouns second Daughter It was alleadged for the Defender absolvitor because where there was no Infeftment there could be no Alienation nor Recognition and there could be no Infeftment without the same were granted to the Disponer or his Procurator to the accepter to his Procurator but here there was no accepter nor Procurator because Cranburn being then a Child and in England had granted no Mandat to take this Seasine and therefore had raised Reduction thereof
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 â—etain 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 â—ailzing 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
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 â—hir 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
Possession as it was the Defuncts Possession So it did continue to be the true appearand Heirs Possession although none had been Served to this Day and therefore the Service or Infeftment following thereupon cannot take away from the true Heir the presumptive Possession of Law which the true Heir hath 2ly No Prescription can be valid against others But these that know or are at least oblieged to know the Right whereupon it proceeds but the true Heir was not oblieged to know their Service nor was he oblieged to Serve himself but when he pleased especially seing he could get no benefit as long as the Liferenter lived and that he was not oblieged to know the first Service appears because he was not called thereto otherways then by a general Citation at the Mercat Cross to all Parties having Interest which is but a point of meer form and prejudges no body and at least could not prejudge a Stranger living out of the Countrey animo remanendi there being neither special nor general Citation as to Persons out of the Countrey on 60. dayes The Lords found no weight in this last Point seing the Law requires no Citation on 60. dayes in cases of Retoures but only 15. dayes generally at the Mercat Cross which they find every man origine Scotus oblieged to take notice of or to have a Procurator at Edinburgh as in communi patriâ who may search the Register of Retoures whether in the publick Register or Town Books before they prescribe They also found that there was no ground for Prescription upon the first Act of Parliament as bearing only relation to these in the Countrey nor upon the last Act of Parliament as bearing only relation Retoures to be deduced thereafter neither did they sustain the Prescription upon the first part of the general Act of Prescription for they found the Liferenters Possession in the Competition of two Heirs not to be profitable to either of them in prejudice of the other nor yet to be the Possession of singular Successors seing it flowed not from these singular Successors but from the Defunct to whom both Parties pretended to be Heir but the Lords found the posterior clause in the Act of Parliament of all Actions whatsomever to extend to the Reduction of Retoures and to be general as to all Actions that may concern Heirs in prejudice of others And found it so much the rather to extend to Retoures that the next ensuing Act finds Retoures to be Deduced thereafter only to be Reduceable within twenty years and so finds the Reduction thereof to prescrive sooner than other Rights and therefore cannot be thought not to have meaned to reach bygone Retoures by the general Act. Creditors of James Masson Merchant Supplicants Nov. 30. 1665. JAmes Masson Merchant in Edinburgh having unexpectedly broke and fled his Creditors gave in Supplication to the Lords bearing that he had most deceitfully broken having the price of the Goods that he had sold meditatione fugae in his hand and that he either lurked in the Abbay or was to go out of the Countrey and therefore craved a Warrand to Messengers of Arms to secure his Goods and apprehend his Person wherever the same could be found until the matter were heard The Lords having considered the case that the occasion was very extraordinar and also the desire most were of the opinion that the Lords might grant the Desire which was done accordingly with a Recommendation to the Duke of Hamiltoun Keeper of the Kings House not to suffer him to lurk there but to expel him that he might be apprehended For albeit ordinarly the Lords grant not Caption or Warrant of Wairding the Person of the Kings free Leidge till he be Denunced Rebel Yet seing the Magistrates of Burghs and the Admiral grant Acts of Wairding against Parties until they find Caution to answer as Law-will The Lords who had eminently in themselves these Jurisdictions they might do the like in the like case but some thought that was a special priviledge not to be extended and this was of dangerous Example to secure persons unheard more proper for the Council as a case extraordinar then for the Session David Boyd contra Isobel Lauder and Iohn Tailzifer Eodem die DAvid Boyd pursues Iohn Tailzifer as Representing his Father on all the passive Titles and Isobel Lauder his Mother and Tutrix for her Interest and condescends upon his behaving as Heir by uplifting of the Mails and Duties of his Fathers Lands by his said Tutrix It was answered that he being a Pupil his Tutrix Intromission could not infer that passive Title against him as hath been frequently sustained these many years It was answered that was but since the Usurpation but before the Tutors Intromission did alwayes infer this Title and the Pupil could only pursue his Tutor for his damnage The Lords found the Pupil not lyable on this passive Title by his Tutors Intromission The Pursuer then insisted against the Tutrix for paying so far as she had intrometted It was answered that she was but called for her Interest to authorize her Pupil but not to pay neither could she be lyable to pay unless a Decreet had been first Established against the Pupil◠and then it had been Arrested in her hands and pursued to be made forthcoming And yet the Lords found the Tutrix hoc ordine lyable White contra Brown Eodem die JOhn White as having Right from Iames White his Fathe◠Charges Brown for 2000. merks who suspends on this Reason that this Translation being by a Father to a Son in his Family at least having no visible Estate to acquire it The Suspender cannot be prejudged as to the manner of Probation by the Fathers Oath by which he offered him to prove that the Father was Debitor in a greater Sum. It was answered that the Cedents Oath could not be taken in prejudice of the Assigney The Lords found that in this case the Reason was probable by the Cedent Oath Telzifer contra Geddes Decemb. 1. 1665. THe competition between Telzifer and Geddes mentioned the eleventh of November last being this day again called Debated and Reconsidered by the Lords at length The question being that Marjory Sandilands having granted a Bond to Samuel Veatch blank in the Creditors name Samuel filled up Marion Geddes Name therein whereupon she Registrat the Bond and Charged him in the mean time Telzifer as Veatches Creditor having Arrested all Sums in Marjory Sandilands hands adebted by her to Samuel Veatch and pursuing to make the same forthcoming she depones that the time of the Arrestment she was no wayes Debitor to Veatch but by a Bond blank in the Creditors Name and that she did not know whose Name was filled up in it But now Telzifer the Arrester compearing craves to be preferred because he had arrested the Sum as belonging to Samuel Veatch his Debitor before Samuel Veatch was Denuded by filling up Marion Geddes Name and intimating or showing the same to
because she is then in potestate viri sub ejus tutelà So that she is truely Wife after the Contract of Marriage becoming publick by Proclamation and it occurring as a doubt amongst the Lords whether the Reduction ought to be sustained at the instance of the Husband only in so far as concerned his interest jure mariti so that the Right might be valid against the Ladie if she survived The Lords sustained the Reason simply at the instance of both and found it null as to both as being done without her Husbands consent Sir Laurence Oliphant contra Sir James Drummond Ianuary 6. 1666. THE Lord Rollâ— his Liferent Escheat being Gifted in Anno 1658. to Walter Stewart He Assigned the Gift and his own Debt the Ground hereof and the General Declarator obtained thereupon to Sir Iames Drumâ—â—mond in Anno 1665. A second Donatar now insists for special Declarator wherein compearance is made for Sir Iames Drummond who craved preference upon his first Gift and on his General Declarator It was answered for the Second Donatar that the first Gift was simulat and null by the Act of Parliament 1592. In so far as the Donatar suffered the Rebel to continue in Possession untill this day and never attained Possession of any part of the Lands nor did any furder diligence but only the General Declarator in Anno 1658. So that the Rebel having now possest by the space of 6 or 7. Years The presumption contained in the Act of Parliament that upon the said Possession the Gift is simulat and null takes place It was answered that there is no definit time in the Act of Parliament by which the Rebels Possession shall presume simulation and in this caâ—e there was but few Anni utilesâ— in so far as the Gift being in Anno 1658. Declarator was obtained that same year and in Anno 1659. Judicatures ceased and began not again till 1661. The Lords found that the Donatar suffering the Rebell to possesse 4 or 5. Years was sufficient to infer the presumption of simulation by the said Act of Parliament and therefore preferred the second Donatar Inter Eosdem Ianuary â— AT pronouncing of the former Interlocutor the first Donatar furder alleadged that the Presumption of Simulation by suffering the Rebel to possesse could not take place in this case First because the Donatar himself was a lawful Creditor of the Rebells whereupon there is a stronger Presumption that the Gift was to his behoove for his own satisfaction And the Act of Parliament can be only meant of Donatars who have no Interest but their Gift and are not Creditors Secondly The Lands were Apprized and the Donatar knew he would be excluded by the Appryzers The Lords repelled the first alleadgeance and found the presumptio juris in the Act of Parliament was stronger then the contrair presumption that the Donatar was Creditor because it might be his purpose to apply the Gift to the Rebells behove and not to take that way having other wayes of payment competent and also repelled the second alleadgeance unlesse it were alleadged that the Apprizer had been in possession so that there had not been 3 or 4. Years in which the Rebel had possest and that if the Appryzing had attained Possession at that time it would have excluded the Donatar but seing it was offered to be proven that the Rebel possest for 3 or 4. Years which was contrair to the alleadgeance of the Apprizers possession of the hail They adhered to their former Interlocutor Elizabeth Broun contra John Scot. Eodem die THere being an Infeftment feu granted of the Lands of Inglistoun as Principal and of the Lands of Fingland in warrandice thereof long agoe and Infeftment taken of both Principal and Warrandice Lands in on Seasine Registrat in the Registers Seasines Since the Year 1617. Thereafter the Warrandice Lands were disponed to the Earl of Traquair and he being publickly Infeft gave a subaltern Infeftment to his Vassal who assigned Iohn Scot to the Mails and Duties who having Arrested insisted to make forthcoming And likewise Elizabeth Broun having after the eviction of the Principal Lands arrested the Rents of the Warrandice Lands insists to make the same furthcoming to her It was alleadged that the Original Infeftment whereupon the said Elizabeth Brouns right is founded is a base Infeftment and as to the Warrandice Lands never cled with Possession and the Earl of Traquairs Right whereon Iohn Scots Right is founded is a publick Infeftment holden of the King which is alwayes preferred to a base Infeftment without consideration whether the publick Infeftment has attained Possession or no or how long but much more in this case where the publick Infeftment has attained Possession not only by year and day but many years And therefore is directly in the Case of the Act of Parliament 1540. cap. 105. Preferring publick Infeftments to prior base Infeftments not cled with Possession It was answered that base Infeftments are of themselves valid and before the said Act of Parliament the first Infeftment made always the best Right whether it was holden of the Disponer or of his Superiour but that Act of Parliament is correctory of the common-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 foâ—â— 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 infeâ—ting 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
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 aâ—quiescing 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 â—ands 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
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 Liâ—erent 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
Die UMquhil Dumbaith having Disponed several Lands to his Oy Iohn Rosse Brother to Kilraick the Laird of May Dumbaiths Heir-male pursues Improbation and Reduction of the Disposition and insisted upon this ground that the Disposition was false in the Date and that the Defunct was aliâ—it the time it appeares to have been subscrived and therefore is false in all It was answered that there was only an Error in the Date in respect the same Right having been conceived formerly in formerly in favours of another Dumbaith gave order to draw it over in favours of the Defender verbatim and the Writer ignorantly Wrote over the Date as it was in that first Disposition which can no ways annul the Writ especially seeing it was offered to be proven by the Witnesses insert that the Writ was truly subscribed by Dumbaith and them as Witnesses when he was in his Liege-poustie against which no alledgeance of alibi by other Witnesses not insert can be respected This having been Dispute in the English time the Witnesses were Examined before answer by three of the Judges and now the Cause was Advised The Lords found the Defense relevant to elide the Improbation that the Writ was truly subscribed before the Defunct was on death-bed and found the samen proven by the Witnesses adduc'd and thereafter assoilzied Laird of Rentoun Iustice Clerk contra Lady Lamberton Eodem Die THe Lord Rentoun insisted in the Cause against Lambertoun mentioned the 13. February 1667. He now insists on this member offering to prove that Umquhil Lambertoun by his Commission or Bond was oblidged to the Estates for exact diligence and the Pursuer being now Restored he is lyable to Count to him in the same manner as to the Estates not only for his Intromission but for his Negligence whereby he suffered other Persons publickly and avowedly to cut the Pursuers Woods of a great value and did no ways stop nor hinder the same nor call them to an Account 2ly He himself Intrometred with the said Wood at least others by his Warrand which Warrand must be presumed in so far as he having a Commission and oblidged for diligence did not only suffer the Wood openly to be cutted but applyed a part thereof to his own use and was oftimes present when it was in cutting by othersâ— The Defender answered First That he could never be lyable to the Pursuer for his Omission because his only Tittle was his Right of Property whereby the Defender was lyable to Restore to him what he had Intrometted with and not Counted for but for his oblidgement to do Diligence it was only personal granted to the Estates and albeit they Restored the Pursuer to the Estate they never Assigned him to that Obligation 2ly The Defender is secured by the Act of Indemnity except in so far as he Intrometted and did not duely Count as was found by the former Interloquitor in this Cause and as to the second member It was answered that the Defender being only Countable for his Fathers Intromission not Counted for albeit he had given warrand to others except he had received satisfaction from them it is not his own Intromission 2ly Warrand or Command is only Probable by Writ or Oath and no way by Presumption upon such Circumstances which Presumptions are also taken off by others more pregnant viz. That these Woods were cutted by Persones in Power and Interest in the Countrey who had no Relation or Interest in the Defenders Father whom he was not able to stop or hinder and most part thereof was Clandestinly cut and stolen away by meaner Persons It was answered for the Pursuer that he being Restored Succeeds in place of the Estates and as what is done by a negotiorum gestor without Warrand is profitable for these for whom he negotiats so must this be which was done by the Estates As to the Act of Indemnity the meaning thereof can be no more then that Parties who Acted shall be in no worse case then they would have been with that Party whom they followed As to the second member the Pursuer answered that what was done by others by the Defenders Fathers Commission must be his Intromission seing it is all one to do by himself or by another and seing it cannot be called Omission it must be Intromission 2ly Though Command or Warrand is ordinarly Probable by Writ or Oath Yet there are casus excepti as whatsoever is done for any Party in his presence is by all Lawyers said to be ex mandato inde oritur actio mandati non negotiorum gestorum so that the presence or tollerance of a person not only having Power but being oblidged for Diligence must much more infer his Power or Warrand And albeit he was not alwayes present yet the Deeds being publick and near the place of his abode it is equivalent The Lords inclined not to sustain the first member both in respect of the Act of Indemnity which bears in it self to be most amply extended and in respect that the Pursuer had no Right to the Personal Obligation or Diligence but as to the second member the Lords were more clear as to what was done in the Defenders Fathers presence but in respect it was more amply proponed The Lords before answer ordained Witnesses to be Examined by the Pursuer whether or not the Woods were publickly cutted and whether or not Lambertoun was at any time there present and apply'd any thereof to his own use and Witnesses also for the Defender to be Examined whethâ—r a part was cut Clandestinly and other parts by persons having no relation to Lambertoun and to whom he used any Interruption Eodem die THis day there being a Query formerly given by the Lord Thesaurer whether or not there should be a Processe of Forfaulture intented against these who rose in the late Rebellion before the Justice General so that the Justice might proceed against them though absent by putting the Dittay to the Tryal of an Assyze and taking Witnesses thereupon and upon Probation to proceed to the Sentence of Forfaulture or whether Probation in absence could not be admitted but before the Parliament There were Reasons given with the Query for the affirmative viz. That there was a special Statute for Forfaulture of Persons after their death in which case they were absent multo magis when they were living and contumacious 2ly Because by the Civil Law albeit Probation especially in Criminals cannot proceed unlesse the Defender be present Yet the chief Criminal Doctors except the case of lese majesty as Clarus Farenatius and Bartolus 3ly That the Parliament proceeds to the Forfaulture in absence not by their Legislative Authority but as a Judicature and what is just by them it is just also by the Justice The Lords demured long to give their Answer upon thir Const â—erations that by Act of Parliament it is Statuted that Probation shall be only led in presence of the Party and that there had never
bare no Annualrent The Lords found that the Tutor behoved to have a competent time to uplift and Re-imploy these Sums for which they allowed him a year and that he was lyable for Annualrent after that year 2ly How soon a Tutor was obliged to do Diligence to uplift his Pupils Means so that if the Debitor became Irresponsable the Tutor was lyable The Lords found that if the Pupils Sums were in the hands of Debitors unquestionably Solvendo the Tutor was not obliged to lift the same unlesse the condition of some of the Debitors or Cautioners became worse at which time he was obliged to do all Diligence for uplifting the sums unlesse the Debitors became to be known to be altogether broken upon a sudden which he could not foresee 3ly VVhat Diligence a Tutor was obliged to do whether Horning was sufficient or if Captionâ— Poynding and Appryzing were necessary The Lords found that in different Cases different Executions were requisite viz. If the Debitor were known to have Lands appryzable or Goods poyndable or Sums arrestable that the Tutor was obliged to do Diligence accordingly and if not to use personal Execution 4ly Whether the Tutor should have allowance of such Sums as he payed without Sentence The Lords found such sums allowable unless a competent Defense could now be proponed which was known and probable to the Tutor at the time of payment Iohn Watson contra Iames Law Iuly 12. 1667. JAmes Law having Disponed certain Lands to Iohn Watson with absolute warrandice and after the Disposition there being a Designation of a part of the Land for Horse and Kines Grasse to the Minister conform to the Act of Parliament 1661. Watson pursues for Warrandice upon that distresse The Defender alleadged absolvitor because the distresse is by a subsequent Law falling after the Disposition It was answered first That absolute Warrandice does even take place in the case of a subsequent Law at least in so far as the Pursuer suffers detriment because if the Lands had continued the Defenders had been so burdened and therefore is lyable in quantum lucratus est 2ldy This is no supervenient Law because the Act of Parliament 1661 Is a Reviving of the Parliament 1649. which being Rescinded in the said Parliament 1661. By a posterior Act thereof concerning Manses and Gleibs is declared to be valid as if it had been made in the year 1649. It was answered to the first that nothing can infer Eviction or Recourse but that which had a Cause anterior to the Warrandice unlesse it had been otherwise exprest Nor is it any ground that if the Disponer remained Heretor he had been lyable otherwise all other supervenient Burdens would Return not only upon the Immediat but upon all the Disponers but all such accidental Superveniencies are upon the Purchasers hazard as well as the Advantages are to his benefit To the second the time of this Disposition the Parliament 1649 was Rescinded and the new Act was not Enacted Neither by the new Act is it declared to be effectual from the year 1649. As to the Horse and Kines Grasse but only as to the Manse It was answered that was but a mistake of the Draught of the Act of Parliament there being no Reason wherefore it should be drawn back as to Manses more then to the rest but it was the meaning of the Act of Parliament to Revive the former Act in all points It was answered that the meaning of Acts of Parliament may not be extended contrair to the words neither can any thing be supplyed that is omitted in a Statutory Act. The Lords found no Recourse upon the Distress arysing from the Act of Parliament 1661. and that the drawing back thereof being expresly as to Manses which is adjected as a limitation could not be extended to the Ministers Grass which is statute in a different way in this then in the Act of Parliament 1649. From this the Heretors are only to pay twenty pounds of Money and in the former Lands were only to be designed therefore found the Distress that being by a supervenient Law that the Warrandice did not reach thereto Margaret Scot contra Sir Laurence Scot. Iuly 14. 1667. SIr William Scot of Clerkingtoun having granted Assignation to his Daughter Margaret Scot of a Sum due by Wauchtoun Pursues Sir Laurence his Son as Haver to deliver the same It was alleadged for the Defender that there was a Clause in the Assignation reserving a power to Sir William to alter and Dispone during his Life and that he did Assign this Bond to Iohn Scot. It was answered that he took a Back-bond from Iohn Scot bearing that the Assignation was granted in Trust to this effect only that Iohn Scot should do diligence thereupon It was answered that the Back-bond bears Iohn Scot to be obliged to denude in favours of Sir William Scot his Heirs and Assigneys whereby the Assignation is altered The Pursuer answered that there appears nothing of the alteration of the Defuncts mind more then if he had appryzed in his own name whereby the Bond would have been adjudged to him his Heirs and Assigneys which is no more then if an Assigney should use the name of the Cedent which would no ways infer that by adjudging Land to the Cedent and his Heirs they pass from the Assignation The Lords found no alteration in the Pursuers Assignation by the Right made to John Scot in his Back-bond which also bare the Right to John Scot was made to do Diligence and for no other end Mr. John Eleis contra Elizabeth Keith Mary Steuart and Keith Iuly 16. 1667. THis Cause at the Instance of Mr. Iohn Eleis against Keiths being Dispute the twenty seventh of February last The Lords found Inhibitions to reach Lands Acquired after the Inhibition but superceeded to give answer to that Point whether the Inhibitions were to be extended to take away Renunciations of Wodset Lands which being now Debated It was alleadged that an Inhibition could not hinder the Granter of a Wodset to pay his Debt and accept of a Renunciation from the Person Inhibit because a Renunciation is but a Discharge and Inhibitions were never found to take away Discharges of Heretable Bonds nor to hinder any Party to pay their Debt but on the contrair It was an universal Custom over all the Kingdom that Debtors should pay their Debts and did accept Discharges and Renunciations without looking into the Registers which hath been most frequent not only in Wodsets but mainly in Infeftments of Annualrent upon Heretable Bonds which no man ever doubted to pay till he searched the Registers of Inhibitions et communis consuetudo pro lege habetur It was answered first That the Inhibition bears expresly a Prohibition to grant Renunciations but no Prohibition to grant Discharges and as to the Custom it cannot be showen that persons did pay Wodsets and take Renunciations from these that were Inhibit much lesse that the Lords by their Decisions did approve
many Witnesses on either side proved not only that the â—eithes 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 â—pregâ—antest 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 Carlâ—ps being Creditor to Sir Michael Nasmith of â—osso 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 Pâ—sso 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 Absolâ—itor 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 albâ—it he be a singular Successor The Lords found the Clause of the Act of Parliament to comprehend Rights acquired by appearand Heirs in their Predecâ—ssors 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 Lâ—wder they pursue Magdalen Shorswood his nearest of kin to dâ—liver 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 Câ—stody 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 dâ—natio 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 câ—usa 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 Repâ—lled the Defenses and decerned Delivery in regard of the Tenor of the Assignation and that it was a moveable sum it being also infoâ—med 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 pâ—oprâ—is 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
Deponed that the principal Inventar was produced by Hartrie on his Death-bed and shown to his Friends and by them Read and that the Subscribed Copy was Collationed with the principal by them that Subscribed the same and held in all points and that the principal Inventar was all written with Hartries own Hand except an alteration made upon a Bond of Tarbets which was written by Iohn Ramsay's Hand by direction of Hartrie some hours before he Died and was not able to Subscribe it with some other alterations in relation to Bonds wherein the Children Substitute were Dead but that this Article in relation to Whiteheads Bond was all written with Hartries own Hand The Lords found the Tenor proven conform to the Subscribed Copy and found the said Inventar Holograph except in relation to Tarbets Bond and these other particulars written by Iohn Ramsay's Hand so that Holograph was proven without production of the principal Writ joyntly with the Tenor albeit some part of the Writ was not Hartries Hand but written by Iohn Ramsay's Hand but these not being Subscribed by Hartrie were in the same case as if they had been omitted forth of the Inventar and the remainder of the Inventar which only was Probative was all Holograph Patrick Park contra Nicol Sommervel November 12 1668. PAtrick Park pursues a Reduction of a Bond of 1200. Merks Scots upon these Reasons First Because albeit the Bond bears borrowed Money and be in the Name of Nicol Sommervel yet he offers to prove by Nicols Oath that when he received the Bond it was blank in the Creditors Name and offers to prove by Witnesses that the true Cause thereof was that Sommervel Nicols Brother having win all the Pursuers Money he had at the Cards he being then distempered with Drink caused him Subscribe a blank Bond for filling up what Sum he should win from him and that this Sum was filled up in this Bond which he offers to prove by the Oath of Nicols Brother that wan the Money and the other Witnesses insert so that the Clause of the Bond being played Money by the Act of Parliament 1621. the Winner can have no more but 100. Merks thereof 2dly Before Nicols Name was filled up or any Diligence or Intimation thereof there was a Decreet Arbitral betwixt the Winner and the Pursuer wherein all Sums were Dischargedâ— which Discharge being by the Câ—dent to whom the Bond was Delivered before the filling up of Nicols Name or Intimation thereof which is in effect an Assignation excludes the Assigney It was answered for the Defender that he opponed the Bond bearing borrowed Money grantled in his own Name and though he should acknowledge that the Bond was blank in the Name and that thereby his Name being filed up he is in effect and Assigney yet the Bond being his Writ the Bond cannot be taken away but by Writ or Oath of Party and not by his Cedents Oath or Witnesses insert unless it were to the Cedents behove or without a Cause Onerous as the Lords have found by their Interlocutor already 3dly Albeit it were acknowledged to be played Money the Act of Parliament is in Desuetude and it is now frequent by Persons of all quality to play and to pay a greater Sum then 100. Merks 4thly The Pursuer who loseth the Money hath no Interest by the Act of Parliament because thereby he is appointed to pay the Money but the superplus Money more then 100. Merks is appointed to belong to the poor and the Defender shall answer the poor whenever they shall pursue but it is jus tertij to the loser who cannot detain the Money thereupon but whatever was the cause the Defender having received the Bond for a Cause Onerous and being ignorant that it was for any other Cause but true borrowed Money he must be in tâ—to otherwise upon this pretence any Bond may be suspected and the Cedent after he is Denuded by Witnesses may take the same away The Lord Advocat did also appear for the Poor and claimed the superplus of the Money more then 100. Merks and alleadged that the Act of Parliament did induce a vitium reale which follows the Sum to all singular Successors and that though ordinarly the Cedents Oath or Witnesses be not taken against Writ yet where there is Fraud Force or Fault Witnesses are alwayes Receiveable ex officio at least and ought to be in this Case where there is such Evidence of Fraud that it is acknowledged the Bond was blank in the Creditors Name when Nicol Received it and the filling up was betwixt two Brethren and the Debitor dwelling in Town did not ask him what was the Cause of the Bond and that an Act of Parliament cannot fall in desuetude by a contrait voluntar Custom never allowed by the Lords but being vitious against so good and so publick a Law The Lords found the Act of Parliament to stand in vigour and that the Loser was lyable upon the same grounds and therefore ordained the Sum to be Consigned in the Clerks Hands and before answer to whom the Sum should be given up ordained Nicols Oath to be taken when his Name was filled up and for what Cause Margaret Calderwood contra Ianet Schaw November 14. 1668. MArgaret Calderwood pursues Ianet Schaw to pay a Bond as Heir to Iohn Schaw granted by him who alleadged Absolvitor because the Bond is null wanting Witnesses the Pursuer offered him to prove Holograph The Defender answered that Holograph could not prove its own Date so that it is presumed the Bond was granted on Death-bed unlesse 〈◊〉 be proven that the Date is true as it stands or at least that it was Subscribed before the Defuncts Sickness The Pursuer answered that Holograph proves its Date except contra tertium but it is good against the granter or his Heir who cannot be heard to say that his Predecessorsâ— Deed is false in the Date The Defender answered that an Heir might very well deny the Date of a Holograph Writ otherwise the whole benefit of the Law in favours of Heirs not to be prejudged by Deeds on Death-bed may be evacuat by Antedated Holograph Writson Death-bed The Pursuer answered that he was willing to sustain the Reason founded on Death-bed which was only competent by Reduction and not by exception or reply The Defender answered that where Death-bâ—d is instantly verified by presumption of Law and that the Pursuer must make up a Write in rigore juris null for want of Witnesses he ought without multiplication of Processes both to prove the Bond Holograph and of a Date anterior to the Defuncts Sickness Which the Lords found Relevant William Duncan contra the Town of Arbroth November 17. 1668. WIlliam Duncan Skipper in Dundee having lent the Town of Arbroth three Cannon in Iune 1651. to be made use of for the Defence of their Town against the English got from the Magistrats of Arbroth a Bond of this Tenor that they did acknowledge them to have
Cautioner 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 â—learing 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— Priviledgâ—s 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 daâ—tus 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 aâ—t 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 Mâ—â—toun 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 Wâ—its 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 Parlâ—ament 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 â—â—orbus 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
incapacitat them then to Dispone their Heretage or to take it any way from their nearest Heirs 2dlie Albeit the Disposition had been Subscribed and Delivered in leige poustie yet the Seising not being taken till the Defunct was on Death-bed Recognition cannot be incurred because it is not the Disposition but the Seising that alienats the Fee and infers Recognition The Pursuer answered First That Death bed is only introduced in favours of Heirs against other Persons getting Right but hath no effect against the Superi or who is not to consider whether the Vassal was sick or whole but whether he hath indeavoured to withdraw himself and his Heirs in the investiture from their Superior 2dlie Death-bed is never competent by way of exception but by way of Reduction 3dlie The Disposition being in favours of the Disponers only Daughter reserving his Liferent albeit it wants a Clause dispensing with the Delivery it being Subscribed in leige poustie it is as valide as if it had been then Delivered and if need be 's offers to prove that it was Delivered in leige poustie to the Lord Frazer for the Pursuers use so that albeit Seising had been taken when the Disponer was on Death bed Recognition must be incurred because the Vassal should not have granted a Precept of Seising and Delivered the same without Reservation and the having of the Precept of Seising being always accounted a sufficient Warrand for taking of Seising and that the Warrand was given at the Delivery of the Precept albeit the Seising was taken when the Disponer was on Death-bed yet the Warrand was granted when he was in leige poustie by the Precept which bears in it self to be an irrevockable Power and Warrand to take Seising so that the Vassal had in his leige poustie done quantum in se fuit to alienat this Waird Fee The Lords found that if the Disposition containing the Precept was Delivered to the Vassal without Reservation in the Disponers leige poustie it would infer Recognition though the Seising were taken after his Sickness and found that if the Disposition and Seising were on Death-bed it would exclude Recognition by way of exception Recognition not being a Possessory but a Petitory or Declaratory Judgement but seing it was alleadged that the Disposition was Delivered to the Lord Frazer the Lords before answer ordained the Lord Frazer to Depone from whom and when he Received the said Disposition and whether he had any Direction to take Seising thereupon or any Direction to the contrair and also that the Bailly Atturney Notar and Witnesses in the Seising should Depone by what Warrand they did proceed therein Earl of Crawfoord contra Rig Iulie 21. 1669. THe Earl of Crawfoord pursues Rig for payment of the half of the Expence of the Building a Park Dike belonging to the Earl in so far as it is Built or to be Built upon the March betwixt him and Rig and that upon the Act of Parliament 1661. anent the Parking and Inclosing of Ground whereby for the Encouragement of them that Inclose it it is provided that whatever part of the Park or inclosure falls upon the March that part shall be Built upon the equal Charges of both the Heretors The Defender alleadged Absolvitor because the March betwixt the Earl of Crawfoord and him is not a dry March but a Burn and the Act cannot be understood but of dry Marches otherwise though there were a Water intersected the Heretor Building a Park Dike upon his own side of the Water might require his Neighbour on the other side of the Water to pay the half of his Charges 2dlie Some parts of the Marches betwixt the Pursuer and Defender are Mossy and Bogy Ground upon which no Dike can stand The Pursuer answered that he opponed the Act of Parliament and that any Meith betwixt his Land and the Defenders is an inconsiderable Stripe of Water which oftimes is dry and cannot hinder a Stone Dike to be Built in the very Channel of it and for the other if the Pursuer Build not the Dike the Defender will not be lyable The Lords found the Reply Relevant and ordained the Stripe of Water either to be wholly without the Dike or if the Defender pleased that it run a space within the Dike and a space without the Dike that either Party might have the benefit of Watering thereat Town of Perth contra the Weavers of the Bridg-end of Perth Eodem die THe Town of Perth pursues the Weavers at the Bridg-end of Perth either to desist from Weaving in their Suburbs or otherwise to pay a Duty accustomed to be payed by the Weavers there to the Town for that Liberty conform to the several Tickets produced and that conform to the 159. Act Parliament 1592. Entituled the Exercise of Crafts within Suburbs adjacent to Burghs forbidden It was alleadged for the Defenders and Sir George Hay thier Master Absolvitor because the said Act of Parliament has been in continual desuetude and was never in use 2dly Though it were yet effectual yet it can only be understood of such Suburbs as have no Priviledge but where the Suburbs are contained in any Burgh of Regality or Barony or within any Barony though having no Burgh the Priviledges of these Erections warrants the exercise of all Crafts-men so that these Websters Living within the Barony of Pitcullen cannot be upon that pretence hindered from Exercising their Trade The Pursuer answered that he opponed the Act of Parliament being general and that it was a standing Law unrepelled and that the obligations of the Weavers Living there to pay a Duty for their Liberty of Weaving did preserve the Act in vigour at least as to this Burgh The Defenders answered that these Weavers being in no Incorporation the Tickets granted by any of them could prejudge none but themselves and being without the consent of the Heretor cannot infer a Servitude upon his Barony without his consent more then his Tennents could infer a Thirlage without his consent The Lords found that the said Act of Parliament did not reach to the Inhabitants of any Barony and that the Tickets of the Weavers could not infer a Servitude upon the Barony and therefore Decerned only against the granters of the Tickets personally for the Duties contained therein Iames Gray contra Margaret Ker Iuly 23. 1669. IAmes Gray having Apprized certain Lands and having Charged the Superior pursues for Mails and Duties Compearance is made for Margaret Ker who produces her Infeftment granted by her Husband the common Author prior to the Apprizing and craves to be preferred The Pursuer answered that her Infeftment being granted by her Husband to be holden of the Superior not Confirmed is null To the which it was answered that an Infeftment of a Liferent granted to a Wife in implement of her Contract of Marriage is valide though not Confirmed The Lords Repelled the alleadgeance and found the Relicts Infeftment null and not sufficient to defend her Possession Mr.
Contract of Marriage and in a Bond of Provision relative thereto became oblieged to pay to the Bairns of the Marriage beside the Heir the sum of 20000. merks at their age of 17. years reserving his own Liferent Elizabeth and Anna Boids the only Bairnes of the Marriage now after their Mothers Death and age of seventeen do with concourse of their Husbands pursue their Father to imploy the said sum of 20000. merks to himself in Liferent and them in Fee The Defender alleadged Absolvitor because the Pursuers can have no Interest in this Provision being expresly conceived in favours of the Bairns of the Marriage beside the Heir Itaest The Pursuers are the Heirs appearand of the Marriage there being no Sons and will succeed to the Estate by the Contract and so cannot demand the Provision made to the other Bairns for if there had been a Son of the Marriage only he could not have claimed this Clause and the Pursuers can be in no better Case than he It was answered that in Contracts of Marriage the meaning of the Parties is chiefly to be respected which has been that in case there were an Heir-male or Son of the Marriage this Sum should belong to the remanent Bairns and therefore it is conceived under the name of Heir in the singular number and being introduced in favours of the Daughters it ought not to be interpret against them but that they may renunce to be Heirs and be satisfied with this Provision only otherwise they may be absolutely excluded the Fathers Estate being apprized by Iohn Boid whose Legal is near to expire and who makes use of the Fathers Name without his Warrand It was answered that Law allows not in any Contract to make up new Clauses and seing the Provision is express in favours of the Bairns beside the Heir it can never quadrat to thir Pursuers who are the only Heirs The Lords found the Provision not to be extended to the Pursuers but because it was suggested that the Father did not propone it They desired the Ordinar to enquire whether the pursuit was for the Father and by his Warrand that then they might consider whether Iohn Boid the Appryzer could have interest to propone that alleadgeance Ker of Cavers and Scot of Golden-berrie Supplicants Eodem die KEr of Cavers and Scot of Golden-berrie being Arbitâ—ators nominat by a Submission did by Bill crave Warrand from the Lords to authorize them to summond Witnesses to compear and Depone before them in the Cause in which they were Arbiters Which the Lords granted Iean Ker contra Downie Ianuary 7. 1670. JEan Ker having set a House in Edinburgh to Downie for nine Pound ten Shillings Sterling She obtains Decreet against him therefore He Suspends on this Reason that within 48. hours after he took the House he did by Instrument give it over which is the ordinar custom of Burghs where there is no Writ to quite the Bargain within a short space unless some offer interveen medio tempore by which the Party is damnified The Charger answered that this House having been taken but fourteen days before the Term there is neither Law nor Custom allowing either Party to give over or resile there being then no competent time to set again For albeit Houses sometimes are given over when they are taken and quite before Warning time when the ordinar occasion of setting to others may occur yet that cannot be drawn to this case and the Instrument of over-giving was only by Downies Wife who shew no Warrand The Suspender answered that there was no difference whether the House was taken before warning time or after seing the Law gives locum penitentiae or some small time which must take place in either case 2dly Albeit the Charger had not been obliged to accept the over-giving yet de facto she has accepted it because it is offered to be proven that she set the House to another and took Earnest thereupon which did import that she quite the first Bargain seing at once she could not set it to two 3dly Albeit offer was made of the Keys at the Term yet it is offered to be proven that the House was not void but that the former Tennents Goods remained therein The Lords Repelled the first Reason of Suspension upon the over-giving but found that Member Relevant that the House being given over the same was set to another and earnest taken therupon but found that Point that the Tennents Goods who possessed formerly were not removed not Relevant in respect of the Custom in Edinburgh not to remove peremptorly at the Term. Mr. Laurence Charters contra Parochioners of Curry Ianuary 8. 1670. MR. Laurence Charters as Executor Confirmed to Mr. Iohn Charters Minister of Currie his Father pursues the Parochioners for 1000. Pound for the Melioration of the Manse of Currie conform to the Act of Parliament 1661. which is drawn back to the Rescinded Act of Parliament 1649. It was alleadged by the Parochioners Absolvitor First Because the Meliorations of the Manse were long before any of these Acts which do only relate to Meliorations to be made thereafter and for any thing done before adificium solo cedit and it must be presumed to be done by the Minister animo donandi there being no Law when he did it by which he could expect satisfaction 2dly Several of the Defenders are singular Successors and so are not lyable for Reparations done before they were Heretors The Pursuer answered that albeit these Reparations were done before the year 1649. yet there being subsequent Acts of Parliament obliging the Heretors to make the Manses worth 1000. pounds if these former Reparations had not been made the Heretors of this Paroch would have been necessitate to make up the same and so in quantum sunt lucrati tenentur 2dly The saids Acts of Parliament contained two Points one is that whereas the intrant Minister payed to his Predecessor 500. merks for the Manse and his Executors were to receive the same from his Successor the saids Acts ordained the Heretors to free the Successor as to which the present Heretors can have no pretence and as to the alleadgeance that they are singular Successors the Acts oblige Heretors without distinction whether they are singular Successors or not The Lords found the Parochioners only lyable for the 500. merks payed by the Minister at his Entry and found that at the time of the Reparation the Parochioners not being lyable were not then lucrati and are not lyable by the subsequent Acts which extend not ad praeterita neither did they find the singular Successors lyable but that the Heretors for the time were only obliged Scot contra Murray Eodem die IN a Process betwixt Scot and Murray a Husband having granted a Tack of his Wifes Liferent Lands and the Wife having promised after his death never to quarrel that Tack yet thereafter insisting against the Tennents who alleadged upon the said promise it was answered that it being
Pursuer and all the Leidges were Inhibite to block or buy from him so that the Pursuer has acted against the Prohibition of the Letters and cannot pretend that he purchased bona fide being so publickly Inhibit and the Inhibition put in Record he neither should nor did adventure to purchase without special warrandice to which he may recur 4thly Such Solemnities when omitted may be supplied for there is nothing more ordinar than in Summons to add any thing defective in the Executions and abide by the truth thereof and many times these Solemnities are presumed done though not exprest as a Seasing of a Miln was Sustained though it bear not Delivery of Clap and Happer yet bearing a general with all Solemnities requisite it was Sustained and a Seasine of Land though it bear not Delivery of Earth and Stone seing it bear Actual Real and Corporal Possession and the Clause â—acta erant hac super solo c. ut moris est Yea in other Solemnities which the Law expresly requires as three â—lasâ—s in the Executions of Horning and six knocks and the affixing of a Stamp have all been admitted by the Lords to be supplied by proving that they were truely done though not exprest in the Execution Though Horning be odious and penal inferring the loss of Moveables and Liferent therefore it ought much more to be supplied in the case of an Inhibition which is much more favourable to preserve the Croditors Debt and here the Messenger hath added to the Execution that a Copie was Delivered and Subscribed the same on the Margent and it is offered to be proven by the Witnesses in the Execution that it was truely so done The Pursuer answered that there was nothing more essential in an Execution than delivering of a Copy for showing or Reading of Letters was no Charge but the delivering of the Copy was in effect the Charge and albeit Executions which require no Registration and may be perfited by the Executor at any time may be amended as to what was truly done Yet where Executions must necessarlie be Registrate within such a time else they are null after the Registration the Messenger is functus officio and his assertion has no Faith and seing the giving of a Copie is essential and if it be omitted would annul the Execution so after Registration it canâ—ot be supplied because in so far the Execution is null not being Registrate debito tempore for as the whole Execution would be null for want of Registration so is any essential part and whatever the Lords has supplied in Hornings yet they did alwayes bear that the same was lawfullie done according to the Custom in such cases and this Execution does not so much as bear that Phillorth was lawfullie Inhibite but only according to the Command of the Letters which do not express any Solemnitie and it hath been found by the Lords that a Horning being Registrate and not bearing a Copy Delivered it was found null because that part was not in the Register nor was it admitted to be supplied any way but that it were proven by the Oath of the Keeper of the Register that that Clause was upon the Margent of the Execution when it was presented to the Registister and was only neglected to be insert by him which shows how necessarâ— a Solemnity the Lords have accompted the giving of a Copy and Registrating thereof And if Solemnities of this kind be by Sentence passed over it will not only incourage Messengers to neglect all accustomed Solemnities but course of time may incroach on all other Solemnities whereas if this be found necessar none will ever hereafter omit it or any other necessar Solemnity The Lords found the Inhibition null and that the Delivering of a Copy was a necessar Solemnity which not being contained in the Register they would not admit the same to be supplied by Probation in prejudice of a singular Successor Acquiring for a just price Hadden contra The Laird of Glenegies Eodem die HAdden being Donator to the Marriage of the Laird of Glenegies pursues Declarator for the avail thereof The Defender alleadged Absolvitor because by an Act of Parliament 1640. It was Declared That whosoever was killed in the present Service their Waird and Marriage should not fall Ita est Glenegies was killed during the Troubles at the Battel of Dumbar It was Replyed that the present Troubles could not extend further than to the Pacification Anno 1641. After which there was peace till the end of the year 1643. 2dly The Parliament 1640. and all the Acts thereof are Rescinded It was Duplyed That the Troubles were the same being still for the same Cause and that the Rescissory Act contained a salvo of all private Rights Acquired by these Rescinded Acts. It was answered that this was a publick Law and the salvo was only of particular concessions by Parliament to privat Parties The Lords found that the Act 1640. reached no further than the Pacification by which the Troubles then present were Terminate The Lords Demured in this case upon remembrance of a Process before them at the instance of the Heirs of Sir Thomas Nicolson against the Heirs of the Laird of Streichen upon the Gift of Streichens Waird to Sir Thomas who Died the time of the War being Prisoner by occasion of the War and after Pacification that they might have seen what they had done in that Case but did not get the Practicque and the Parties being agreed they Decided in manner foresaid wherein this was not proponed nor considered that the foresaid Act was always esteemed an Exemption after the Pacification during the whole Troubles and no Waird for Marriage was found due that time though many fell during the War and if it had not been so esteemed the same Motives that caused the first Act to be made in Anno 1640. would have moved the renewing thereof after the Pacification and no doubt the King and Parliament Anno 1650. before Dumbar would have renewed the same for incouragement in so dangerous a War if it had not been commonly thought that the first Act stood unexpired Murray contra The Earl of Southesk and other Appryzers of the Estate of Powburn Eodem die JAmes Murray having Right to an Appryzing of the Estate of Sir Iames Keith of Powburn led at the instance of Mr. Thomas Lundie pursues thereupon for Mails and Duties Compearance was made for the Earl of Southesk and posterior Apprizers after Year and Day who alleadged that by the Act of Parliament 1661. betwixt Debitor and Creditor It is provided that the Lords of Session at the desire of the Debitors may ordain Appryzers to restrict their Possession to as much as will pay the Annualrent the Debitor Ratifying their Possession and now the Posterior Appryzers having Appryzed omne jus that was in the Debitor craved that the first Appryzer might Restrict himself to his Annualrent and they preferred to the rest of the Duties It was answered that
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
stat sententia dubius est eventus litis neither can Reduction which is a petitory Judgement sist the Pursuers Process which is a possessory Judgement upon pretence of prejudiciallity otherwise Possession might still be inverted upon such pretences Nor can the Earl be put from his Possession thereby Especially for the years preceeding the intenting of the Reduction The Lords Repelled the Defense as to the years ante litem motam by the Reduction but Sustained it for the years since in respect the Earls Possession was not clear and that the Valuation was exorbitant near as great as the Stock Hellen Hepburn contra Hamiltoun of Orbestoun December 12. 1661. HEllen Hepburn as Executrix to her Father Humbie Pursues Sir Iames Hamiltoun of Orbestoun for payment of a 1000. merks due to her Father by Bond. The Defender alleadged Absolvitor because there being a Bond of 10000. pounds granted by Balhaven Humby Prestoun and Orbestoun for the use of the late Duke of Hamiltoun but there being nothing to Instruct that it was the Dukes Debt yet there was a Transaction with the Dutches of Hamiltoun for a lesser Sum whereof Balhaven Prestoun and the Defender had payed their part by which Transaction the Pursuers Tutrix and Overseer did agree to quite this Bond in respect that her Father was acquited of any share of the Bond of 10000. pounds The Pursuer answered First That the Defense ought to be Repelled because being but a Verbal Agreement before Writ was subscribed either Party might Resile Secondly The Transaction cannot be Instructed there being no Write and Witnesses are no competent neither can the Tutrix Oath prove against the Pupil The Defender answered to the first that the Transaction being pactum liberatorium it required no Write and so there was not locus penitentiae And as to the Probation of the Transaction though Tutors Oath of Knowledge of any Debt of the Pupils Predecessors will not prove against the Pupil because the Tutor is singularis testis and not in officio But a Tutors Oath as to Deeds done by himself in officio would sufficiently prove the same The Lords thought there was not locus penitentiae from the Traâ—saction though but Verbal but as to the manner of Probation they ordained the â—utrix and overseers Oaths to be taken ex officio Gordoun of Gight contra Abercrombie of Birkbog Eodem die SIR Alexander Abercâ—ombâ—e of Birkbeg having obtained Decreet of of Ejection against Sir George Gordoun of Gight for Re-possessing him in certain Lands and paying the double Rent for the violent Profits Gight Pursues Reduction of the Decreet on these Reasonsâ— First because there was no Law nor Practick to make the violent Profits of Lands without Burgh to be the double of the Rent which is only competent by Custom in prediis urbanis Secondly The Ejection was prescribed not being intented within three years conform to the Act of Parliament Thirdly Gights Defense of Entring in vacuum possessionem was only found probable scripto vel juramento whereas being facti it was probable by Witnesses The Lords Repelled the First and Second Reasons as Competent and emitted in the Decreet and as to the Third The Decreet did bear the alleadgence in the Decreet to be Gights entring into void possession with consent of Partie which consent not being qualified by any palpable fact was not Probable by Witnesses Iames Hamiltoun contra the Tenents of Oversheâ—ls December 13. 1661. JAmes Hamiltoun Merchant in Glasgow having right to two apprysings of the Lands of Oversheils Pursues the Tennents for Mails and Duties and after Litiscontestation Iohn Rollane Writer Compears for his interest and produces an Apprysing at his Instance with a Charge against the Superiors It was alleadged he could not be admitted in this state of the Process The Lords admitted him in respect he craved no alteration to be in the Litiscontestation but concurred therein and craved Preference to what should be found due thereby The said Iohn being admitted alleadged he ought to be Preferred because he had charged the true immediate Superiour whereas the other two Apprysers had taken Infeftment as if the Lands had holden immediatly of the KING It was answered for Iames Hamiltoun that he ought to be preferred because he was Infeft long before Iohn Rollane and supposing his Infefment were not of the immediate Superiour yet being in Possession by vertue thereof five or six Years he hath the benefit of a Possessorie Judgement and his Infeftment cannot be taken away without Reduction The Lords preferred Iohn Rollane and granted not the benefit of a Possessorie Iudgement without seven years Possession Iohn Boyd contra Laird of Niddrie and Edmonstoun Eodem die JOhn Boyd as Assigny Constitute to a Bond of a thousand merks by Wolmet charged Niddrie the Debitor who Suspends on double Poynding In which Compearance was made for Iohn Boyd who having declared upon Oath that the Assignation was to his behove for the satisfaction of the Sum of fourteen hundred pounds and that the remainder was to Wolmets own behove according to which he had granted back bond to Wolmet and thereafter granted a second back bond to Major Bigger oblidging him to make the Sum forthcoming to Biggar which was done before any Arrestment but depones that he knows at that time his first back bond was given and that a Discharge of his first back bond produced was by a mistake keeped up by Major Biggar and not delivered up to him till within this few days upon this Oath the Laird of Edmonstoun who had arrested all Sums due to Wolmet in Niddries the Suspenders hand in Iune 1658. alleadged That the ought to be preferred to Biggar because it is clear by the Oath that the superplus of the Sum was to Wolmets behove and he having arrested it before the discharge of Iohn Boyds first back bond was delivered to Iohn Boyd or expresly delivered to Iohn Boyd's behove or otherwayes that the first back bond were re-delivered no deed that Iohn Boyd could do without Wolmets expresse consent could prejudge Wolmets Creditors It was alleadged for Biggar that albeit the first back bond was not delivered back to Iohn Boyd before the Arrestment nor the discharge delivered to him yet Wolmet having subscribed the discharge and delivered it albeit it came not to Iohn Boyds hands it was sufficient to take away the first black bond The Lords preferred the Arrester and found the discharge could operat nothing unlesse it were delivered to Iohn Boyd or some Person to his behove before the Arrestment for they thought if discharges by Creditors put in a third Parties hands not delivered to the Debitor should be sufficient it would eâ—ervart all Arrestments unless the deliverie were exprest to the Debitors behove Homes contra Iohn Bonnar December 14. 1661. MAry and Homes as Donatar to the Escheat and Liferent of Umquhile Iohn Home pursued Iohn Bonnar for Compt Reckoning and Payment of the Sum of 16000. merks due to the Rebel
he expresly renunced the benefit of the Usurpers Act betwixt Debitor and Creditor and all such Acts made or to be made and oblidged himself upon Honour and Conscience not to prejudge Sir John of his bargain to which no subsequent Law could derogat unless it had been specially notwithstanding any such Paction Secondly The foresaid Act has an express exception That where such Acts made and to be made are Renounced the benefit of that Act shall not be competent to such The Pursuer Answerd to the first That Pactions or Renunciation of Parties cannot operat against a posterior Law Secondly The persuâ—t here is for restricting of a Wodset to the true Annualrent for all that was done in the Usurpers Act was to take Land in satisfaction and to delay payment but this Clause of the Act is nothing such and so is Casus Incogitatus which could not be held to be Renunced unless it had been exprest as to the exception in the Act it is not an Exception general to the whole Act but to the Antecedent part of the Act and this Clause anent Restricting of Wodsets is posterior to the Exception and not derogat thereby The Lords Repelled the Defense in respect of the Reply and found the Exception not to Derogat to the Posterior Clause concerning Wodsets Lord Burly contra Iohn Sime Ianuary 30. 1662. THE Lord Burly pursues Iohn Sime for intruding himself in a Coal-heugh wherein the Pursuers Author was infeft severally and not in the Land but only in the Coal with power to set down Pits through all the bounds of the Land The Defender alleadged absolvitor because he stood Infeft in the Lands lybelled with Parts and Pertinents and be vertue thereof was seven Years in Possession which must Defend him in Possession until his Right be reduced The Pursuer answered that the Defender could have no benefite of a possessory Judgement not being expresly Infeft with the benefite of the Coal in prejudice of the Pursuer who was expresly Infeft and Seased in the Coal and in possession of the Coals past memory The Defender answered there was no necessity of an express Infeftment of the Coal which is carried as part and pertinent as Craig observes in dieg de investituturis impropriis to have been decided betwixt the Sheriff of Air and Chalmers of Garthgirth and so being Infeft and in possession seven years he has the benefite of a possessory Judgement The Lords found the Defense Relevant but Repelled the same in respect of Interruption within seven years which was proponed Halbert Irwing contra Mckartney Eodem die HAlbert Irwing pursues Mckartney for Spuilzie of ten Oxen. The Defender alleadged Absolvitor because he Intrometted with the Oxen by Warrant from Mr. Robert Ferguson to whom the Pursuer had given a Disposition of all his moveable Goods for relief of a Cautionry for which Mr. Robert first and now this Defender is Distrest Secondly He offers him to prove voluntar Delivery of the Oxen by the Pursuer to him for the cause foresaid But because the Pursuer hath summoned several other persons as Complices which are necessary Witnesses of purpose that he might exclude them from being Witnesses he desires they may be admitted Witnesses or otherwise Discust First that if they be Assoilzied they may be Witnesses The Pursuer answered to the first non relevat a Disposition unless there had been Delivery and albeit there had been an Instrument of Delivery yet it being dispositio omnium bonorum two years before the medling could be no Warrant for summar medling without Sentence of a Judge and gave only jus ad rem But specially the medling with the Plough Goods in time of Labourage when the Pursuer put other Goods before the Defender The Lords found the first Defense Relevant founded upon the general Disposition and Instrument of Possession and that the Disposition alone though without any possession had been sufficient against the Disponer ad vitandum spolium unless the Defender had Intrometted by violence being resisted by force But they proceeded not to the second Defense which doubtless was Relevant and the desire reasonable of Discussing the remnant Defenders First that they might be Witnesses if Assoilzied Yea it seems they could not be hindred to be Witnesses used for the Defender though they might be suspect Witnesses against him as being Interest to put the Spuilzie upon him for their own relief Sir Iames Cunninghame contra Thomas Dalmahoy February 1. 1662. SIr Iames Cunninghame pursues Thomas Dalmahoy and the Tennents of Pollomount to make payment to him of the Mails and Duties of the Lands of Pollomount resting at the Death of the late Dutches of Hamiltoun because she had granted Bond of 500. pound Sterling to the Pursuer to be payed after her Death and for security thereof had assigned the Mails and Duties of her Liferent Lands of Pollomount which should happen to be due at the time of her Death It was alleadged for Thomas Dalmahoy her second Husband Absolvitor because these Mails and Duties belonged to him jure mariti neither can he be lyable for this Debt jure mariti because it was not Established against him during the Ladies Life neither could be because the term of payment was after her Death The Pursuer answered that he did not insist against Thomas Dalmahoy as Husband but as Intrometter with the Rents of Pollomount due at the Dutches Death wherewith he hath medled since which could not belong to him jure mariti being assigned before the Marriage and if they could belong to him jure mariti yet it must be with the burding of this Debt The Lords Repelled the Defense in respect of the Reply for they thought a Husband albeit he was not lyable simply for his Wifes Debt post solutum matrimonij yet that he should have no more of the Wifes Means jure mariti but what was free of Debt and so behoved to pay her Debt so far as he enjoyed of her Means Belshes contra Belshes Eodem die IN an Account and Reckoning betwixt Belshes and Belshes concerning Executry The Lords found that the prices given up by the Defunct in his Testament of his own Goods should stand and the Executor be accountable accordinglyâ— seing there was no enorm prejudice alleadged as if the Defunct had prized the Goods within a half or third of the true avail to the advantage of the Executor and prejudice of the Wife Bairns or Creditors The Lords did also allow Aliment to the Wife out of her Husbands Moveables to the next Term albeit she Liferented an Annualrent payable at the next Term. Lord Melvil contra Laird of Fairin February 4. 1662. THe Lord Melvil pursues the Laird of Fairin for Warrandice of a Disposition of certain Lands aud Teinds sold to my Lord by him with absolute Warrandice and condescends that the Teinds were affected with 13. Bolls by a Locality to the Minister in Anno 1641. The Defender alleadged Absolvitor because this Distress was
and therefore as is ordinar in all Clauses in relation to Heirs which cannot be effectual if Heirs served be understood their Heirs appearing are understood verba sumenda sunt cum effectu The Lords also Repelled this Defense Thirdly The Defenders alleadged absolvitor Because first Clauses de non alienando are never understood to extend to necessary alienations as for provision of the Feears Wife and Children for Redemption of him from Captivity or any other accident without his Fault Secondly Clauses de non Contrahendo debitum are against Commerce and utterly rejected Thirdly Clauses irritant are resolutive albeit contained in the Infeftment are but personal obliegements and the ground of an Action against the contraveener but if the Contraveener be denuded are not effectual against singular Successors Especially Creditors Contracting bonafide with one standing Infeft before the matter became litigious by Processes upon that Clause seing no Inhibition was used ita est thir Creditors had Apprized and were Infeft before any such Processes upon this Clause or Inhibition used and no personal provision could transmit the Right from Annandale to Stormount upon contraveening the Clausses nor could hinder the transmission thereof from Annandale who had the only real Right to the Creditors by vertue of their Appryzings and Infeftments which denuded Annandale of the real Right and which real Right stands now only in the Person of the Creditors Infeft so that there can be no more in Stormounts Person but a Personal Provision for the being within the body of the Infeftment will not make this Clause real and to affect the Right quo ad singulares successores more then the Clause of Warrandice in the Infeftment which without question reaches not singular Successors and albeit some Provisions in themselves Personal may affâ—ct singular Successors as the Provision that if two years run together the Feu shall become void or the Clauses of Reversion or the Inherent Clauses or quality in Ward holding but these become real by Law and Statute for we have a particular Act of Parliament anent Reversions to be effectual against singular Successors and another anent Feus â—b non solutum canonem and there is no other case that such Provisions are real The Pursuer answered to the fiâ—st albeit alienations do not comprehend judicial Alienations by Appryzing in Recognition and are oftimes not extended to necessar Alienations Yet here the Clause bears expresly not to altenat and also to do no Deed whereby the Laws may be Evicted and Apprized without which the Clauses de alienando were utterly ineffectual and repeats the same to tâ—e second As to the third albeit de facto the real Right be in the Appryzers Infeftment yet it is in them effected with that quality in the condition and bosome of it that gives good ground not only against the Earl of Annandale Contraveener to annul his Right But also the Apprizer in consequence quia resoluto jure dantis resolvitur jus accipientis Especially in Feudal-rights where provisionis investiturae sunt legis feudi as all Feudists agree and therefore all such Pactions and Provisions are equivalent to Law 2d This Clause of the Infeftment is not only resolutive but also is an Interdiction Prohibiting the Feear for the time to alienat or do any Deed prejudicial without consent of such other Persons of the Tailzie were Majors for the time and therefore though the Pursuer should enter Heir to Annandale he might annul these Rights just as in the Case of an Heir of an Interdicted Person who may annul all Rights by his Predecessors after the Interdiction The Defenders answered that as to this Point concerning the Interdiction it cannot be effectual because by a particular Act of Parliament all Interdictions are appointed to be published and to be Registrat in the Registers of Inhibitions otherways they are null This Interdiction is neither published nor Registrat in that Register The Pursuer answered it is al 's publick because it is not only in his Infeftment at the great Seal but it is verbatum in the first Seasine and repeated in the Earl of Annandales Retour and Seasine so as that the Creditors ought to have considered his condition when they lent him Money and known that he was Infeft otherwise their mistake though it might be alleadged to be bona fidae yet if Annandale hade never been Infeft their bona fides would have wrought nothing seing therefore they did it on their peril unless they knew he was Infeft and they could not know he was Infeft by inspection of his Seasine or of the Register but they behoved to know this Clause which is verbatum in it The Lords did also Repel this Defense and Duply in respect of the Reply and Triply and found the resolutive Clause effectual against singular Successours especially considering it was so publick and verbatim in the Seasine and that it was equivalent to an Interdiction Thirdly The Defender further alleadged absolvitor because the pursuer hadâ— behaved himself as Heir to the Earl of Annandale by Intromission with the Mails and Duties of the same Lands The Lords Repelled this Defense because the Pursuer having intented Declarator against Annandale in his own life they thought the provision was equivalent to an Interdiction which purged that passive Title Creditors of Kinglassie February 27. 1662. IN the Competition betwixt the Creditors of Kinglassie mentioned the former Day the Dispute anent the base Infeftment made publick by the poinding of the Ground so long before the Term of payment being reasoned before the Lords in presentia they sustained the same as before Marjory Chalmers contra William Dalgardno Eodem die MArjory Chalmers pursues William Dalgardno as vitious Intromettor with a Defuncts Goods to pay his Debt who alleadged absolvitor because the Rebel died at the Horn and so had no Goods Secondly The Defender hath the gift of his Escheat and also is Executor Creditor Confirmed to him Thirdly The Defender had a Disposition of all the Defuncts Goods albeit he possessed not thereby during his Life yet he might Enter in possession after his Death and not be vitious Intromettor The Lords found this Defense Relevant to elide the passive Title but prejudice to either Party to Dispute their Rights as to the simple avail of the Goods and they Repelled the first Defense and found the second and third Defenses Relevant only if the Gift was before the Intenting of this Cause William Hamiltoun contra Mcfarlane of Kirktoun February 28. 1662. WIlliam Hamiltoun pursues Iames Mcfarlane of Kirktoun as Successor titulo lucrâ—â—ivo to his Father to pay his Debt who alleadged absolvitor because he was not alioqui successurus in respect that at the time of the Disposition he had and hath an Elder Brother who went out of the Countrey and must be presumed on life unless the Pursuer will offer to prove that he was Dead before this Disposition so that at the time thereof the Defender was not
Defense in that Case must always be that the Defender is Tennent by payment of Male and Duty to such a person who either is Infeft or hath Tack and Terms to run after the Warning but if the Charger had a Tack standing the Lords ordained him to produce the same and they would hear the Parties thereupon Charles Oliphant contra Dowglasse of Donnoch February 3. 1663. CHarles Oliphant as Assigney Constitute by David Macbrair Charges Dornoch to pay the sum of 1800 merks Compearance is made for an Arrester as having Arrested before the Assignation at least before Intimation The Assigney answered no preference upon this Arrestment because it was Execute upon the Sabbath Day and so is not lawful for by the Law of all Nations Judicial Acts done by Authority of Judges upon Legal Process diebus feriates are null and there is an Act of Sederunt to that same effect The Arrester answered that there was no Law prohibiting such Executions or declaring them null and though it was a fault and breach of the Sabbath to do so that annuls not the Act fiâ—ri non debet sed factum valet The Lords were all clear that such Executions should be prohibit in time coming but quo ad praeterita some were non liquct Yet the major part found the Execution null for they thought that albeit Acts of privat Parties on the Sabbath Day might stand legally valid as if Extracts were Subscribed that day or a Consignation made which had been found valid by a former Decision yet judicial Acts authoritate judicis are null else Messengers would ordinarly wait Parties upon the Sabbath Day for all Execution by Horning and Caption c. Laird Phillorth contra Lord Frazer February 4. 1663. SIR Alexander Frazer of Phillorth being in Distresse for Debt Disponed his Barony of Cairnbuilg to Robert Frazer of Doors which Lands of Cairnbuilg lyes near to Phillorth and the House thereof was his Residence in the Alienation there is a Clause conceived to this effect that it shall not be leisom to the said Robert Frazer of Doors to Alienate the Lands during the Lifetime of the said Sir Alexander Frazer and if the said Robert Frazer did in the contrary he obliged him to pay to the said Sir Alexander the Sum of ten thousand pounds for Damnage and Interest ex pacto convento and if the said Robert should have aâ—do to sell the saids Lands after the death of the said Sir Alexander he obliged him to make offer there to the Heirsand Assigneys of the said Sir Alexander or any Person he pleased nominat of the Name of Frazer for 38000 pounds The said Robert Frazer of Doors Disponed the saids Lands to Staniewood during the life of Sir Alexander Frazer Sir Alexander assigned the Contract and the foresaid Clause to this Phillorth whereupon he raised Improbation and Reduction of the Disposition granted by Doors to Staniewood the Lord Frazers Grand-Father upon this Reason that he as Assigney by his Father to the Clause de non alienando had good interest to pursue Reduction of the Disposition contraveening the said Clause and true it is that the said Disposition granted by Doors to Staniewood was null as proceeding a non habente potestatem in so far as by the foresaid Clause in the said alienation granted by his Grand-Father to Doors it was expresly provided it should not be leisom for Doors to sell c. Which being a Provision in the Disposition repeated at the least generally in the Procuratory of Resignation is pactum reale effectual against singular Successors as was lately found in the case of the Lord Stormont and so must annul the Right made contrair thereto 2ly Albeit it were not a real Paction yet unquestionably the Obligement not to Annalize did personally oblige Doors and thereupon there was an Inhibition raised before my Lord Frazers Grand-Father Staniewoods Right And therefore the Disposition made thereafter ought to be reduced ex capite inhibitionis It was answered for the Lord Frazer to the first member of the Reason non relevat for such an Obligation de non alienandoâ— is reprobat in Law as being contrair the nature of Property 2ly It is not reale pactum albeit it were in the Charter or Seasine much less being only in the Disposition and in the Narrative of the Procuratory of Resignation thus and to the effect the said Robert Frazer may be Infeft upon the provisions and conditions in manner foresaid but no further mention thereof in the Procuratory of Resignation or Infeftment and so meets not with Stormonts Case where the Clause was expresly resolutive that in such a Case the Right should be null ipso facto and return to the next person who might be Heir of Tailzie Which Clause was not only in the Disposition but in the Procuratory Charter and Seasine Registrate and thereby equivalent to a Publication of an Interdiction but here there is no resolutive or irritant Clause nor any Right reserved to return in case of contraveening nor is it in the Infeftment at all As to the second the Inhibition cannot make the Clause effectual to annul the Alienation because Doors was not simply obliged not to Alienat during Sir Alexanders Life but if he did in the contrair to pay ten thousand pound for Damnage and Interest ex pacto convento which cannot be understood of Damnage by delay or Expence in attaining the principal Obligation seeing it bears not as is ordinar by and attour performance and the quantity thereof being so great it must be evidently understood of the value of the principal Obligation so that it becomes an alternative or restrictive Clause whereby it was in Doors option whether to forbear to sell or to pay the ten thousand pounds if he did sell so that the Inhibition can reach no further then to the ten thousand pounds seing Doors by selling became obliged for the ten thousand pounds The Lords found the Defense Relevant and that the Clause or Inhibition could extend to no further then ten thousand pounds It was further alleadged for Frazer absolvitor from the ten thousand pounds because it being a Moveable Sum fell under Sir Alexander Frazer his Escheat which was Gifted to one Forbes and declared expresly as to this ten thousand Pounds and assigned to the Lord Frazer The Pursuer answered that this Sum was Heretable because it succeeded in the place of the principal Obligation not to alienat for such a time and after that time to offer the Lands of Phillorth and his Heirs for eight thousand pounds which is clearly an heretable Clause and therefore this Sum coming in leu thereof must belong to the Heir or Assigney and so fell not to the Fisk seing surrogatum sapit naturam surrogati as Sums Consigned for Redemption of Lands before Declarator are not moveable but belong to the Wodsetters Heirs or Assigneys so in mutual Obligations whereby one person oblieges to Dispone or Resign Lands and another is oblieged for
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 〈…〉 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 usâ—ing 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 Linlithgâ—w 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 Bâ—rronie and therefore is null as to any other Persons and as to 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 â—etenta 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
Infeftment was only base not cled with Possession and that the Defenders Title was by another Party Possessing and publictly Infeft before his Fathers Death Which the Lords found Relevant Iames Allan contra Iames Paterson Iune 17. 1663. JAmes Allan charges Iames Paterson as Cautioner in an Indenter for a Prentise set to the Charger for five years and insists upon that Article of paying two dayes wadges for ilk dayes absence and subsumes that the Prentise left his Service after the first two years and was absent three years The said Iames Paterson Suspends on this reason that it must be presumed Collusion betwixt the Charger and his Prentise that having gotten the Prentise Fee and not learned him the Trade he had suffered him to escape never making intimation to the Suspender that he might have brought him back to his Service while now that he is out of the Countrey and not knowing where The Charger answered that there was nothing to obliege him to make such intimation neither could a sufficient presumption of Collusion be sustained The Lords found the Letters orderly proceeded either while the Cautioner caused the Prentise Re-enter and serve out his time or otherways payed fifty pound for damnage and interest to which they modified the Charge Margaret Fleming contra Iames Gilleis Iune 18. 1663. MArgaret Fleming being Infeft in an Annualrent of 700. merks out of Houses in Edinburgh in Liferent with absolute warrandice from all dangers perils and inconveniencies whatsomever pursues Declarator against the said Iames Gilleis as Heretor for declaring that her Annualrent should be free of all publick burden since the rescinding of the Act of Parliament 1646. whereby Liferenters were ordained to bear proportional part for their Annualrents with the Heretors The Defender answered the Libel was not Relevant for albeit the Act of Parliament was rescinded the justice and equity thereof remained that whatever burden were laid upon Land shouldly proportionably upon every part therof and every profit forth of it Which Defense the Lords found Relevant and Assoilzied Francis Hamiltoun contra Mitchel and Keith Eodem die SIr Alexander Keith of Ludquharn being oblieged by Bond to Robert Mitchel in Leith for the price of certain Bolls of Victual was arrested in Leith till he found Francis Hamiltoun Cautioner as Law will and both being pursued on the Act raised Advocation on this reason that the Baillies of Leith had unjustly forced him to find Caution as Law will he not being dwelling in Leith nor Leith not being a Burgh Royal but a Burgh of Barony It was answered that the priviledge and custome of the Town of Edinburgh was to arrest within Leith and all other priviledges and pendicles thereof The Lords found that it behoved to be condescended in what place of Leith Ludquharn was arrested for the Peer of Leith was a part of the Burgh Royal of Edinburgh and was served by a Bailie of Edinburgh called the Water Baillie and if he was arrested there it was valid but the rest of Leith is but a Burgh of Barony and in that part thereof the Baillie is called Baron Baillie it were not valid Euphan Hay contra Elizabeth Carstorphine June 19. 1663. THe said Euphan having obtained Decreet against the said Elizabeth for certain Furnitur to her House She suspended on this reason that her Husband was not called The Charger offered to prove in â—ortification of her Decreet that her Husband was 20. years out of the Countrey and she repute as Widow Which the Lords found Relevant George Reid contra Thomas Harper Eodem die THese Parties competing in a double Poinding George Reid craved preference because he was assigned to the Mails and Duties by Thomas Mudie Heretor of the Land Thomas Harper alleadged that he had arrested the Duties upon a Debt owing to him by William Mudy Father to the said Thomas and any Right Thomas had was fraudulent and null by exception by the express words of the Act of Parliament 1621. being betwixt Father and Son without any onerous Cause and he ought not to be put to Reduce in re minima his Debt being within a 100. pound The Lords found he behoved to Reduce conform to their constant Custom in Heretable Rights Ferguson contra Ferguson June 23. 1663. UMquhil Ferguson in Restalrig having a Tack set to him by the Lord Balmerino for certain years his eldest Brother Son as heir of Conquest and his youngest Brother Son as heir of Line competed for the Mails and Duties of the Lands The Lords found the Tack to belong to the Heir of Line albeit it was Conquest by the Defender Mcdowgal contra Laird Glentorchy June 24. 1663. Mcneil having Disponed certain Lands to Mcdowgal wherein he was Heir apparent to his Goodsyrs Brother oblieged himself to Infeft himself as heir therein and to Infeft Mcdowgal at least to renunce to be heir to the Effect Mcdowgal might obtain the Lands adjudged whereupon Mcdowgal having raised a Charge to enter heir Mcneil renunces and thereupon Mcdowgal craves the Land to be Adjudged and Glentorchy Decerned to receive and Infeft him Glentorchy alleadged that he could not receive him because he had right to the Property himself unless the Pursuer condescend and instruct his authors in whose place he craves to be Entered had Right The Pursuer answered that lie needed to instruct no Right nor was he oblieged to Dispute the Superiours Right but craved the ordinar course to be Entered suo periculo with reservation of every mans Right and the Superiours own Right as is ordinary in Appryzings and Adjudications The Defender alleadged that albeit that was sustained in Appryzings where the Superiour gets a years Rent and though it might be allowed in ordinar Adjudications proceeding upon a liquid Debt favore creditorum yet not in such a Case as this where the Vassals apparent Heir Dispones and oblieges himself to Renunce of purpose to Charge his Superiour The Lords found no Processe till the Pursuer instructed his Authors Titles But an Infeftment being produced he was not put to Dispute the validity thereof in this instance Menzeis contra Laird Glenurchy Eodem die THe Daughters of Mr. William Menzeis as Executrix to him pursues Glenurchy for payment of a Bond due to their Father he alleadged minority and Lesion and that he had Reduction thereupon depending The Pursuers answered no Lesion because this Bond being granted to their Father for his Stipend by the Defender who was Heretor of the Land he was not leased because as Heretor he was lyable for the Stipend The Defender answered that his being Heretor could not Obliege him because his Grand-father was then living whose Liferent was reserved in his Disposition who and the intrometters could only be lyable Stipends not being debita fundi and it were of very evil consequence if the Heretor were lyable during the whole life of a Liferent The Lords found that there being a Liferenter the Heretor was not lyable and therefore sustained
and salted them themselves to be proven by their Oaths and would not sustain the Probation of the Custom seing the principal Decreet was not produced unless that at least the Testimonies proving that Custom were repeated and produced out of the old Process that it might appear whether there were any ground of Objection against the manner of Probation Lady Colvil contra Lord Colvil December 14. 1664. THe Lady Colvil pursues the Lord Colvil to relieve her of the whole Debt hererable and moveable of the Defunct his Predecessor because the Defunct in his Testament had named her his Lady Executrix and universal Legatrix with a special Clause that she should be free of all his Debt whatsomever The Defender alleadged Absolvitor because no Deed done by a Defunct in lecto or in Testament can prejudge his Heir The Pursuer replyed that this Testament was made in the Defuncts leige poustie The Defender answered that on Death-bed and by Testament equiparantur Which the Lords found Relevant and assoilzied Laird of Phillorth contra Forbes of Aslocon December 16. 1664. PHillorth as Donatar to the Escheat of Forbes of Aslocon and having obtained general Declarator insists in his special Declarator It was alleadged Absolvitor because the Horning whereupon the Gift was granted is null in so far as being beyond Dee it is upon six dayes contrair to to the Act of Parliament 1600. Declaring all Hornings beyond Dee on less then fifteen dayes null conform to a Decision in Dury albeit on a Bond bearing a Clause of Registration on six dayes onlyâ— February 14. 1625. Steuart contra Bruce It was answered for the Pursuer that the Acts of Parliament hinder not the agreements of Parties but is expresly anent Hornings on Lawborrows or the like but these are on the parties own consent by the Clause of Registration and if these should not be valide all the Hornings and other Executorials thereon beyond Dee since 1600. would be null and such Bonds would have no effect seing upon the Clause of Registration Horning could not be otherwise direct on six dayes and so they should not have any summar execution The Defender answered that the Act is general of all Hornings and bears a general Reason because it is impossible for Parties at such distance to come to Edinburgh to Suspend in four dayes and privat pactions cannot derogat from general Laws where the express reason is for publick utility contrair to which no man can make himself Rebel more then he can give power to Incarcerat himself where Law gives no warrant but prohibits The Lords Repelled the Defense and sustained the Horning Innes contra Forbes of Touchon Eodem die INnes having Charged Forbes of Touchon on an Act of Adjournal for an Assythment for wounding him and reparation of his Blood He Suspended and alleadge the Act was null wanting Citation Compearance or probation It was answered that being the Act of the Justice General who is Supream in criminalibus it cannot be recognosced by the Lords The Lords having considered the case amongst themselves thought that in what was truly Criminal as to corporal pains or amerciaments in way of punishment they would not medle with the Justice Sentences but Assythment being civil for the Damnage and Interest of the Party pursuable before the Lords they might recognosce thereon and therefore in respect that the Probation of the Fact was by a Process before the Baillies they ordained that Process to be produced before answer and the Suspender to condescend if there was any exorbitancy in the Sum decerned for the Assythment Mr. Thomas Paterson contra Watson December 17. 1664. MR. Thomas Paterson Charges Watson to remove from his Gleib who alleadged the Designation is null because it is not subscribed by the Ministers Designers but is only the assertion of a Nottar 2ly By the Act of Parliament 1663. anent Gleibs there is an exception of Royal Burrows to which Ministers Gleibs are not due ita est Dysert is a Royal Burgh The Charger answered to the first that the having a warrand from the Bishop and Presbytrie his instrument of Designation is as sufficient as a Seasine to give Right to Land And to the second the Royal Burrows excepted must only be understood of such who have not a Landwart Congregation but are chiefly constitute of an Incorporation for Trade but this Burgh is notourly known to be but a Burgh of Barony holden of the Lord Sinclar albeit it has the priviledge of Vote in Parliament and is a Parsonage The Lords Sustained the Designation but before Extract ordained the Testificat of the Ministers Designers under their hands to be produced Sarah Blomart contra Earl of Roxburgh SArah Blomart pursuing the Earl of Roxburgh he alleadged she could have no Processes being of the Vnited Provinces who are declared enemies to His Majesty It was answered that there was no Denunciation of War by His Majesty as King of Scotland nor any Proclamation in Scotland to that purpose It was replyed that there was a Warrant by the King and Council to cease upon all the Dutch Vessels in Scotland The Lords found that this was but an Imbargo and no Denunciation of War in Scotland and therefore found Process Mr. Iames Reid Minister of North-Leith contra William Melvil December 20. 1664. MR. James Reid Charges William Melvil for the Teind of hard Fish bought by the said William in the Lewes and imported by him at Leith He Suspends on this Reason that he bought the said Fish from Merchants in the Mercat and did neither take the same himself nor bought them immediatly when they were green from the Taker and so can be lyable for no Teind The Charger answered that he is decennalis triennalis Possessor of getting twenty shilling of the Last of all Fish imported at New-haven and for instructing thereof produces a Decreet in Anno 1634. and another in Anno 1662. and if need beis offers him yet to prove Possession The Defender answered that these Decreets are expresly against the Fishers or Takers of Fish but not against Merchants buying and importing the same and as for the Custome non Relevat unless it were an universal Custome established by Sentences for if some few Merchants should have to save themselves trouble given an uncertain acknowledgement according to their own discertion and no fixed Duty nor by no compulsive way it imports not The Lords Suspended the Letters except only for such Fish as should be taken by the Boats and Fishers of New-haven Agnes Young and her Husband contra Buchanans Eodem die AGnes Young pursues Buchanans her Children for her third of her Husbands Moveables and for her Liferent use of the other two thirds conform to her Contract of Marriage whereby she is provided to his Liferent of all Goods and Geir conquest during the Marriage moveable and immoveable The Defenders answered that the Pursuer cannot both have the third and the Liferent of the whole because it must be presumed
to be Creditor in the same Clause The Lords found the conception of the Clause that the Brother by falling now Heir was excluded seing it was clear by the meaning of the Defunct that his Heir should have his Lands and his Bairns of his second Marriage should have though but one 4000 merks but here the Heir of the first Marriage was never served Heir They also found that the Portions of the Children being to an uncertain day and not conceived to their Heirs or Assigneys that they dying before that day had no right to the Stock but only the Annualrent medio tempore so that the Stock accresced to the surviving Children as if the Defuncts had never existed and that their Assigneys or Creditors could not have affected the same and so found the Brother had no right as nearest of Kin to the two deceasing Children not attaining the Age mentioned in the Contract William Stewart contra Stewarts Ianuary 18. 1665. WIlliam Stewart pursues a Poynding of the Ground of the Lands of Errol upon an Infeftment of Annualrent granted to his Grand-Father by the Earl of Errol by his Bond and Infeftment following thereupon in which Bond there were Cautioners the Annualrent was for a Sum of 7000 merk and a Sum of 8000 merk Compearance is made for the Pursuers Brothers and Sisters who alleadged that as to the Sum of 7000 merks it became moveable and belongs to them as nearest of Kine In so far as their Father made Requisition for the same It was answered the Instrument of Requisition is null and being disconform to the Clause of Requisition in respect that the Original Bond was to the Husband and Wife the longest liver of them two in Conjunctfee and their Heirs c. And the Requisition bears expresly That if the Husband or his Heirs required with consent of the Wife then the Debitor shall pay ita est the Instrumenet bears no consent It was answered that albeit some Points of the Requisition were omitted yet seing the mind of the Defunct appears to take himself to his Personal Right and consequenly to prefer his Executor to his Heir it is sufficient The Pursuer answered non relevat because every Intimation of the Defuncts Intention is not enough but it must be haili modo and the ground whereupon the Sums become moveable is because the Requisition looses and takes away the Infeftment and therefore if the Requisition be null the Infeftment is valid and he Bairns can never have access The Lords found the Requisition null and preferred the Heir Stewart contra Stewart Ianuary 19. 1665. IN the foresaid Cause it was further alleadged for the 8000 merk that it was also moveable because as to it there was no Liferenter and the Fear himself did require It was answered for the Children that the Requisition is null because it mentions not the production of a Procuratory nor the production of the Right it self 2ly The Requisition is made to Bogie as Cautioner for the Earl of Kinnoul whereas he was Cautioner for the Earl of Errol granter of the first Bond. It was replyed oppones the Requisition bearing That the Procurators power was sufficiently known to the Notar 2ly non Relevat unless the Person required had called for the Procuratory or Right and had been refused 3ly The Procuratory is now produced with the Right and the Defunct acknowledged the Procuratory and Right because he raised horning thereupon The Lords sustained the Requisition and found the Sum moveable and preferred the Bairns thereto Shaw contra Lewens Eodem die WIlliam Shaw being a Factor at London and dieing there and having Means both in England and Scotland There falls a Competition betwixt his Executors nuncupative in England and his nearest of Kine Executors in Scotland Anna Lewens Executrix confirmed in England produces a Sentence of the Court of Probat of wills in England bearing That upon the Examination of Witnesses that Court found that William Shaw did nominat Anna Lewens his Executrix and universal Legatrix And that being asked by her what he would leave to his friends in Scotland He declared he would leave her all and them nothing because they had dealt unnaturally with him It was alleadged for the Defuncts Cusigns Executors Confirmed in Scotland that they ought to be preferred because as to the Defuncts Means and Moveables in Scotland the same must be regulat according to the Law in Scotland where a nuncupative Testament hath no use at all and albeit a Legacy may be left by word yet it cannot exceed a 100 lib. Scots It was answered that as to the Succession the Law of Scotland must regulat so that what is Heretable cannot be left by Testament though made out of Scotland As was found in the Case of the Successors of Col Henderson dying in Holland and in the Case of contra Meldrum yet as to the Solemnity of Acts to the Law and Custom of the Place where such Acts are done takes place as where an Act is done in Scotland albeit it be only probable by Writ or Oath of Parties yet being done in England it is probable by Witnesses though it were of the greatest moment and though the Law of Scotland in Writs of Importance requires the Subscription of the Partie before Witnesses or of two Nottars and four Witnesses yet Writs made in France and Holland by the Instrument of one Nottar are valid so here there being no difference from the Law of Scotland which always preferres Executors nominat before nearest of Kin and the difference only as to the Solemnities and manner of Probation that there it may be proven by Witnesses there was a Nomination and here only by Writ The Lords having considered the Reasons and former Decisions preferred the Executors confirmed in Scotland for they found that the Question was not here of the manner of Probation of a Nomination In which case they would have followed the Law of the Place but it was upon the Constitution of the essentialls of a Right viz. A nomination which albeit it were certainly known to have been by word yea if it were offered to be proven by the nearest of Kin that they were Witnesses thereto yet the Solemnitie of writ not being interposed the Nomination is in it self defective and null in substantialibus Lord Lour contra Ianuary 20. 1665. IN a Process for making arrested Sums furth-coming two Arresters viz. my Lord Lour and another Competing It was alleadged for Lour that the first Arrestment is null because the Partie was out off the Countrey when it was only made at his dwelling house which is not Legal seing all Summonds Intimations Premonitions Requisitions and all Denunciations against Parties out of the Countrey must be by Letters of Supplement from the Lords Execute at the Mercat Cross of Edinburgh and Peir and Shore of Leith So must Arrestments against these who are out of the Countrey be there Which the Lords found relevant and preferred the second Arrestment Personal
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 â—â—eretors 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 Sedâ—runts 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 coâ—â—pears 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 cuâ—uslibet 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 repeiâ—ed 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
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 coâ—â—orâ— 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 Wilâ—iam 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 Corâ—regual 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
Procurator that might infer his being informed or having Warrand but only his taking a day to produce they would not sustain the Decreet unless the Charger instructed the same by proving the quantities White contra Horn. Novemb. 25. 1665. IN a Competition between White and Horn the one having Right by progresse to the Property of a piece Land and the other to an Annualrent forth thereof It was alleadged for the Proprietar First That the Annualrent was prescribed no Possession being had thereupon above fourty years 2ly The Original Right produced to constitute the Annualrent is but a Seasine without a Warrant and albeit the Common Author have given Charter of Ratification thereof yet it is after the Proprietars Seasine given by the Common Author to his Daughter propriis manibus It was answered for the Annualrenter to the first That the Prescription was interrupted by Citations produced used upon a Summons of Poinding of the Ground before the Baillies of the Regality of Dumfermling where the Lands ly As to the second that the Confirmation granted to the Annualrenter is prior to any Charter Precept or other Warrant granted to the Proprietar for as for the Seasine propriis manibus that has no Warrant produced The Proprietar answered that the Interruption was not Relevant because the Executions were null in so far as the Warrant of the Summons bears to Cite the Defender Personally Or otherwise upon the Ground of the Land or at the Mercat Cross or Shore of Dumfermâ—ing whereupon such as were out of the Countrey were Citedâ— and not upon 60. dayes but 25. which Reasons would have excluded that Decreet and therefore cannot be a legal Interruption As to the other albeit the Pursuers first Seasine want a Warrant yet it hath been cled with natural Possession and the Annualrentars hath not The Lords Repelled both these alleadgences for the Proprietar and found the Executions sufficient to interrupt albeit there were defects in them that might have hindred Sentence thereupon especially in re antiquâ the Lands being in Regality where the custome might have been even to Cite Parties absent out of the Countrey at the head Burgh of the Regality and the Shore next thereto and as the Proprietars Right was not Established by Prescription so they found that Possession could not give a possessory Iudgement to the Proprietar against an Annualâ—entar which is debitum fundi Mr. Iames Peter contra Iohn Mitchelson Eodem die MR. Iames Peter Minister of Terregh pursues Mitchelson for a part of his Stipend due out of the Defenders Lands who alleadged no Process till the Pursuer produced a Title to the Defenders Teinds seing he brooked them by a Tack It was Replyed he offered him to prove seven years Possession as a part of the Stipend of Terreghs Which the Lords sustained without any Title of Possession Bruce contra Earl of Mortoun Novemb. 28. 1665. IN an Action for making arrested Sums forthcoming between Brucâ— and the Earl of Mortoun The Lords found that the Summons behoved to be continued seing they were not past by a special priviledge of the Lords to be without continuation albeit they were accessory to the Lords Anterior Decreet against the principal Dâ—bitor which they found to be a ground to have granted the priviledge of not Continuation if it had been desired by a Bill at the raising of the Summons but not being demanded They found quod non in erat de jure Younger contra Iohnstouns Eodem die PAtrick Porteous having a Tenement of Land in Edinburgh provided his Wife thereto in Liferent and dyed before the year 1608. his Wife lives and Possesses as Liferenter Yet in Anno 1608. one Porteous his Brother Son was Served and Retoured Heir to him and Infeft as Heir and Disponed the Land which is come through three several singular Successors to Iohnstouns who are Infeft therein as Heirs to their Father in Anno 1655. Youngâ—r having acquired aâ— Disposition from Stephanlaw Porteus Residenter in Polland causes Serve the said Stephenlaw as nearest Heir to the said Patrick whereupon Stephenlaw is Infeft and Younger is Infeft There are now mutual Reductions raised by either Parties of others Retours and Rights wherein Younger alleadging that his Author Stephenlaw Porteous was the nearest of Kin in so far as Patrick the Defunct had four Brethren and Stephen Law Porteous was Oye to the eldest Brother whereas the other pretended Heir was Son to the youngest Brother which he offered him to prove It was answered for Iohnstouns Absolvitor from that Reason of Reduction because they had Established their Right by Prescription in so far as they had a progress of Infeftments far beyond the space of fourty years cled with Possession by the Liferenter whose Possession behoved to be accounted their Possession because the Act of Paâ—liament anent Prescription bears that the Person Infeft being in Possession by himself or by his Tennents or others deriving Right from him and therefore the Liferenters Possession is alwise the Fiars 2ly By the first Act of Parliament anent Prescriptions of Retours they prescrive if they be not quarrelled within three years And by the last Act of Parliament 1617. anent the Prescription of Retours they are declared to be prescrived if they be not pursued within twenty years And by the general Act of Prescription 1617. There is a general Clause that all Reversions Heretable Bonds and all Actions whatsomever shall prescrive if they be not followed within fourty years By all which Stephenlaw Porteous not being Retoured till the year 1655. nor having moved any Action against the first Retour This Action of Reduction and all other Actions competent are prescribed It was answered for Younger that he being Heir to maintain the right of Blood which is the most important Right competent by the Law of Nations no Statute nor positive Law can take it away unless it be express and evident for the right of Blood can never prescrive seing it is certain that a man may serve himself Heir to his Predecessor though he died a 1000. years since if he can instruct his Service And as for the Acts of Parliament alleadged upon they cannot take away any Right of Blood for the first Act of Prescription on three years expresly bears to extend to these within the Countrey as Stephenlaw was not and the last Act is expresly only in relation to Retoures to be deduced thereafter but this first Retour quarrelled was deduced long before viz. in Anno. 1608. As for the general Act of Prescription seing it mentions not Retoures but only Infeftmentsâ— Reversions and Heretable Bonds The general Clause of all Actions whatsomever ought not to be extended to Retoures especially seing the meaning of the Parliament appears not to have been extended by them to Retoures because the very next Act doth specially Order the prescription of Retoures As to the Iohnstouns Infeftments they have not the benefit of Prescriptions never being cled with Possession For the Liferenters
Law and exhausted the Benefice It was answered for the Pursuer that he oppones the Acts of Parliament requiring only Confirmations of Kirklands and albeit the Duties of this Office affects the Lands nihil est for if the Abbay had Thirled the Lands of the Abbacy to a Miln without the Abbacy for a Thirled Duty of a far greater value then the Duties of this Office the constitution of that Thirlage required no Confirmation The Lords Sustained the Pursuers progress and Repelled the first Alleadgence and also Repelled the last Alleadgence and found no necessity of Confirmation of the Office and Duties thereof aforesaid whether the samine were holden Feu or Ward but did not cognosce whether the same was Feu or Ward c. albeit that was contraverted neither whether Infeftments of Kirk-lands holden Ward needed Confirmation or no. â—contra Earl of Kinghorn Ianuary 23. 1666. 〈…〉 having pursued the Earl of Kinghorn upon a Bond granted by his Father He proponed Improbation by way of Exception which was sustained and a Term assigned to prove and that same Term to the Pursuer to bide by his Bond. The Defender supplicat that seing the Act was not extracted albeit the Term was come that he might have yet liberty to propone payment It was answered he could not because exceptio falsi est omnium ultima after which no other could be proponed much less after the Term was come and the Pursuer come to bide by the Write Yet the Lords sustained the Defense of Payment Colonel James Montgomery and his Spouse contra Steuart Ianuary 24. 1666. MArgaret Mcdonald and Colonel Iames Montgomery her Spouse pursue a Declarator against Steuart Oye and appearand Heir to umquhil Sir William Steuart to hear and see it found and declared that umquhil Dam Elizabeth Hamiltoun Spouse to umquhil Sir William had Right to certain Bonds and House-hold Plenishing from Sir William and that the said Margaret had Right thereto from the said Dame Elizabeth by her Assignation and that the sums and Goods were Moveable and thereby the Assignation granted thereto albeit on death-bed was valid It was condescended on that the Bonds were Moveable by a Charge of Horning It was answered that the Charge was but against one of the Cautioners which was not sufficient to make it moveable The Lords Repelled the Alleadgence Eleis of Southside contra Mark Cass of Cockpen Eodem die ELeis of Southside pursues Cass as Heir to Mr. Richard Cass or as being charged to enter heir to him Compearance is made for Cockpen who was a Creditor to the Defender and had appryzed his Lands and alleadged no Process because the Pursuer pursues as Assigney The Assignation being his Title is posterior to the Charge to enter Heir or Summons which are raised not in the Cedents Name but in the Assigneys It was answered for the Pursuer that Cockpen could not object this because he was Curator to the Pursuer and had appryzed the Lands and proponed this alleadgence of purpose to exclude this Pursuer from coming in within year and day because it this Summons were cast the Defender being now out of the Countrey before a new Charge to enter Heir could proceed upon 60. dayes and Citation upon 60. dayes and the special Charge upon 60. dayes the year would elapse It was answered that Cockpen had never acted as Curator and that this Summons was raised by the Pursuer himself after his Majority who was Major more then a year ago It was answered that the Pursuer had but very lately recovered his Writs from his Curators though he used all Diligence and was forced to transume against some of them The Lords sustained the Summons in respect Cockpen had been Curator and so near the time of Minority Earl of Eglingtoun contra Laird of Cuninghame head Ianuary 27. 1666. THe Earl of Eglingtoun pursues the Laird of Cuninghame-head for the Teinds of his Lands conform to a Decreet of Valuation The Defender Alleadged absolvitor because he bruiked by vertue of a Tack at least by tacit Relocation which must defend ay and while the famine be interrupted by Inhibition or Process It was replyed the Pursuer produces Inhibition and craves only the valued Duties for the years thereafter It was answered the Inhibition is direct to Messengers at Arms and is only execute by a Sheriff in that part It was answered that it was sufficient seing the Letters bore Messengers Sheriffs in that part The Lords found the Inhibition sufficient to interrupt the tacite Relocation Iean Crichtoun and Mr. Iohn Eleis her Husband contra Maxwel of Kirk-house Eodem die JEan Crichtoun being Served to a Terce of certain Lands belonging to her first Husband Maxwel of Kirk-house pursues for Mails and Duties It is alleadged absolvitor because the Pursuer hath a competent Joynture more then the third of her Husbands Estate as then it was and a Provision of Conquest and albeit it be not expresly in satisfaction of the Terce yet it is but a minute bearing to be extended and there is a Process of Extension thereof depending and therefore it ought to be extended with such Clauses as are ordinar in such cases and this is most ordinar that competent Provisions use to be in satisfaction of the Terce It was answered that the Extension could not be with alteration of any substantial Point such as this but only as to Procurators of Resignation Precepts of Seasine c. And to show that it was not Kirk house his meaning that the Infeftment should be in satisfaction of the Terce the Infeftment it self produced being extended in ample Form does not bear to be in satisfaction The Lords Repelled the Defenses and found the Terce competent in this Case Colonel James Montgomery contra Steuart Eodem die IN the Declarator betwixt these Parties mentioned the 24. day Instant It was alleadged that the Plenishing and Moveables could not be declared to belong to the Pursuer by vertue of Dam Elizabeth Hamiltouns Disposition in so far as concerns the Moveable Heirship in respect it was done on Death bed and could not prejudge the Defender who is Heir even as to the Heirship-moveable It was answered that the said Dam Elizabeth being Infeft neither in Land nor Annualrent in Fee could have no Heirship It was answered that her Husband and she were infeft in certain Lands by Hoom of Foord which were Disponed to her Husband and her in Conjunct-feeâ— and to the heirs of the Marriage which failzing to whatsoever Person the said Sir William should assign or design And true it is he had assigned that Sum to his Lady whereby she had Right of the Fee and so might have heirship The Lords found that this Designation made the Lady but Heir appearand or of Tailzie whereupon she was never Infeft and by the Conjunct-fee she was only Liferenter and that the Assignation to the Sums and Right gave not her heirs any heirship moveable Heugh Dollas contra Frazer of Inveralochie Ianuary 31.
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 Deâ—lared 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 deâ—uetude 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
Heir to his Father by Intromission with the Mails and Duties of the Lands wherein his Father dyed Infeft as of Fee for payment of a Debt of his Fathers who alleadged absolvitor because any Intromission he had was by a Warrand and tollerance of Sir George Kinnaird who stood Infeft in the Lands upon a Gift of Recognition It was answered non relevat unless the Gift had been Declared before the Defenders Intromission because the Gift would not have given Right to the Donatar himself to possess The Defender answered that the Gift was Declared before the Intention of the Pursuers cause which Declarator albeit after Intromission yet must be drawn back to the Gift to purge the vitiosity of the Defenders Intromission in the same way that the Confirmation of a Testament will purge anterior vitious intromission the Confirmation being before the intenting of the Cause The Lords found the Defense relevant to elid the passive Title seing any colourable Title is sufficient to excuse the vitiosity but did not find that the Declarator before intenting the Cause had the same Effect as a Confirmation because by constant Customs such confirmations purge the preceeding vitiosity which has never yet been found in this Case of an Heirs intromission with the Rents of Lands but the Lords found the Defender lyable for the single value of his Intromission Alexander Burnet contra Iohnstouns Eodem die JOhn Iohnstoun having disponed the Lands of Fraster-hill to Gordoun of Lesmore whose Right Alexander Burnet having appryzed and by the appryzing having Right to the Clause of Warrandice contained in the Disposition charges Iohnstoun the Disponer to warrand the Right against a posterior Right granted by him to William Iohnstoun who had obtained first Infeftment It was answered that the Warrandice could have no effect because there neither was nor could be a distress in so far as in William Iohnstouns Disposition Iohn Iohnstouns and his Wifes Liferent were reserved during whose life he could never distresse Burnet 2ly It was Burnets authors fault that for many years he did not take Infeftment having long Right before the second Disposition It was answered that Iohnstoun himself could never object this delay to excuse his fraudulent Deed of granting double Dispositions whereby Parties become infamous by the Act of Parliament 1540. cap. 105. and unto the other point albeit there was no present distress yet there was unquestionable ground of a future distress against which the Defender could answer nothing that could elid it and who being but a naked Liferenter if no execution should pass upon the Clause of Warrandice during his Lifetime he would be fully frustrat The Lords decerned Johnstoun the Disponer to purge the posterior Disposition granted by him and found neither of the alleadgeances in the contrair relevant Brown and Duff contra Bizet July 18. 1666. BRown and Duff having obtained Decreet against Bizet for a Sum due to Umquhil Andrew Duff Merchant in Polland Bizet raises Suspension and Reduction upon this Reason that this Sum having been in bonis defuncti the Charger could have no Right thereto till it were established in their Persons by a Confirmation in Scotland by the Commissaries of Edinburgh ut in communi patria It was answered moveables sequuntur personam and therefore wheresoever the moveables be they are regulat according to the Law of the place where the Defunct resides and it is instructed by the Testimony of the Consul and Counsel civitatis Regiae pusensis that by the Common Law and Law of that place moveables belonged to the Wife and Bairns and the Pursuers were so cognosced by them declaring the said Clares Brown Wife and the said Duff the only Daughter of Andrew Duff and therefore they have sufficient Right without Confirmation in Scotland which appears by the Act of Parliament James 1. cap. 89. Par. 1426. And it hath been still the Custome so to do and that it was so decyded the 16. of Feb. 1627. Lauson contra Bastil Kello It was answered that it was otherwayes decided in the Case of Rob contra French 25. Feb. 1637. And there was no reason that these that lived out of the Country animo remanendi should be in better condition then these that resided in the same and behoved to Confirm and to pay the Quot The Lords found that the Testament behoved to be Confirmed by the Commissars of Edinburgh for having considered the old Act of Parliament they found that the poynt there ordered was to what Judicatures the Merchants going abroad to Trade should be lyable and that such as went abroad not animo remanendi should be subject to the jurisdiction of that place where their Testament would be confirmed viz. where they had their Domicills but these that went out of the Country to remain are excepted but nothing exprest where their Testament should be Confirmed and for the Decision the Point in question was not whether a Confirmation in England was valid but whether a Confirmation without an Inventar was valid and therefore seing nothing was objected against the Confirmation it self The Lords did justly find that the wanting of an Inventar in an English Confirmation where that was the custome did not prejudge it neither is the Case determined by the Decision betwixt Rob and French in respect that the Executor having Confirmed in England and rather being Confirmed by the Legatars would not own the Confirmation but renunced the same and therefore the Lords found no Consuetude or Decision in the Case but determined the same ex bono aequo Hellen Millar contra Watson Iuly 21. 1666. WAtson having obtained a Decreet before the Lords against Hellen Millar for the Rent of some Tenements in Glasgow she Suspends and raises Reduction on these Reasons First That the Decreet was null as being ultra petita in so far as the half of the Duties was only lybelled and the whole was decerned 2dly That Watson's Right was as Heir to Watson who was first Wife to Brown who stante matrimonio acquired this Right to him and her and the one half to her Heirs and the other to his which was a Donation betwixt Man and Wife revocable and revocked by the Infeftment granted to Hellen Millar in Liferent his second Wife It was answered that the Decreet being in foro contradictorio was irreduceable 2dly That the Right was not granted by the Husband to the Wife but acquired from a third Partie The Lords reduced the Decreet finding that it was visibly Extracted by error of the Clerks being ultra petita and therefore sustained the second Reason albeit it was omitted that it was a Donation betwixt Man and Wife being acquired to the Man and Wife and so presumed to be by his means which is equivalent as if he had been Author unless that Watson could condescend that it was by the Wifes means Gavin Hamiltoun contra Duke Hamiltoun and Bishop of Edinburgh Eodem die GAvin Hamiltoun as Assigney by the Collector of vaccand Stipends
is here nothing but the very instancing of the Practiques without deducing the Case dispute and Reason of Decision neither can Skâ—ens conclusion take place in all the largeness he sets it down or else there shall need no more to infer a Marriage but that the Vassal was in lecto egritudinis albeit he had so continued of a Lent Disease above a year nothing should Capacitat him to Marry his Heir although he used all the Solemnities of Treaty Contract and Proclamation so that the Law de lecto â—gritudinis which is only introduced in favours of Heirs that their Predecessors shall not prejudge them shall now be made use of against the Heir that his Predecessor can do nothing to his benefite on Death-bed The Pursuer answered that the feudal Contract being of its own Nature Gratuitous and most favourable on the Part of the Superior that which he hath for his Fee being ordinarly the Service of the Vassal and the profit of the Fee when the Vassal is unserviceable through Minority reserving the Vassals own Aliment and the profit of the Vassals Tocher the Vassal ought not to defraud or prejudge him therein And albeit custom hath introduced an exception that the Tocher is not due to the Superior which was gotten during the Predecessors Life it being ordinarly consumed and applyed to the Predecessors use yet that by precipitation the appearand Heir should enjoy the same and not the Superior is against the Gratitude Amity and Obliegement of the Vassal neither is there any Parity in the Case of a Resignation to which the Superior consents or in the Case of an Appryzing wherein the Superior must Receive by the force of Law nor can the forbearance of sixty years infer a contrary Custome because this is a Case rarely contingent and oft times not known to the Kings Officers and though it were their negligence prejudges not the King by an express Act of Parliament neither is that a Custome which People use to do but Customes here are only such as are Judicial by the Kings Ministers of Justice whereanent Skeen expresly saith that this is praxis forensis and albeit the Decisions Adduced by him be not at large yet the circumstances of fraud here are so pregnant that they cannot be thought to have been more pregnant in any other Case where there was no Proclamation and where the Defunct was not only in lecto but was moribundus Physicians having so declared the common Reputation being that he would not Live and Dâ—ing de facto within a few dayes after and there being no singularity in the Match nor any pressing necessity of the Marriage for any other Effect The Lords found the Lybel and Reply relevant viz. That the Marriage was done when the Predecessors Father was moribundus and done wîthout Proclamation and that he Died within eight dayes after there being nothing alleadged to take off the Presumption of fraud upon these Circumstances Robert Miln contra Clarkson February 21. 1667. RObert Miln as Donatar to a Liferent Escheat having obtained a general Declarator insists now in a special Declarator for Mails and Duties It is alleadged for Clarkson that the Pursuer has no right to the Mails and Duties because he stands Infeft before the Rebellion It was answered any Infefetment Clarkson has is but a base Infeftment never clede with Possession till the Rebellion and year and day was run and so is null as to the Superiour or his Donatar It was answered that the base Infeftment is valide in it self and albeit by the Act of Parliament 1540. A Posterior publick Infeftment for Causes Onerous be preferable yet that cannot be extended to the Right of a Liferent Escheat or to a Donatar It was answered that by the course of Rebellion year and day the Superiors Infeftment Revives as to the Property during the Rebels Liferent and cannot but be in as good condition as any Posterior publick Infeftment and it was so decided March 19. 1633. Lady Rentoun contra Blackader The Lords found that the base Infeftment though Prior to the Denunciation not having attained Possession within year and day could not exclude the Liferent Escheat Helen Iohnstoun contra Robert Iohnstoun Eodem die IN the Cause betwixt Helen Iohnstoun and Robert Iohnstoun her Brother It was further alleadged for her that the Pursuit being a matter of breach of Trust and Fraud betwixt Parties so nigh as Brother and Sister the same ought to be Probable by Witnesses above exception and ought not to be referred to the Defenders Oath because it s offered to be proven that he did Depone before the Justices of Peace in Fife that he had never had the Bond in question and yet in this Process it is Judicially acknowledged in the Dispute that he hath the Bond and that he received it blank from the Pursuers Husband and it s now offered to be proven by his own Brother and other Witnesses above exception that the Pursuer delivered the Bond to him blank after her Husbands death which being a matter of Fact and Probable by Witnesses necessarly infers that the Bond was not redelivered to her Umquhil Husband The Lords before answer ordained the Witnesses ex officio to be examined upon the Pursuers delivery of the Bond after her Husbands Death Earl of Errol contra Hay of Crimunmogat February 23. 1667. THe Earl of Errol Pursues a Declarator of Redemption against Hay of Crimunmogot It was alledged Absolvitor because the Defender stands Infeft upon a Charter granted by Barcklay with the consent of the Earl of Errol proomni suo jure long after the reversion granted be Barcklay whereupon this Redemption proceeds It was answered for the Pursuer 1. That the Earl only consents and the Charter bears that the Sums were payed to Barcklay whose Right produced is a Wodset granted by the Earl of Errol and Hay of Vrie bearing an Expresse Reversion to any lawful Eldest Son of Hay of Vrie which failzieing to the Earl of Errol Ita est that the time the Earl Subscrived this Charter Hay of Vrie was alive and had Sons at least in spe so that the Earl of Errol had not thereby the Right of the Reversion and therefore his consent without any Sums received or any absolute Warrandice cannot extend to any superveening Right which he then had not actually but in spe et in apparentia 2ly The Earls consent to Barcklayes Disposition who had only the Right of Wodset not bearing irredeemable or absque reversione cannot take away the expresse Reversion of Barcklayes Right for albeit an Heritable Right be presumed Irredeemable presumptio cedit veritati and it cannot take away a Reversion where it is The Lords found that the Reversion granted in Barcklayes Right was not taken away by this Posterior Right and Charter but that the Earls consent imported only his Favour and Goodwil to transmit the Right to the Defender in respect of the alledgeances aforesaid Laird of May contra John Rosse Eodem
Kings Farmorers but that they had Common Pasturage in the Moor of Selkirk is not only presumed because it is the Common of the whole Barony and Possest by all the adjacent Feuars thereof but also by their continual Possession since for Possession 40. years is sufficient to prove all bygone Possession since the Right capable of that Possession it being impossible to adduce Witnesses to prove Possession eight score years since otherways and therefore as in the Case of the Lord Borthwick and William Borthwick Decided the 14th of this Instant The Lord Borthwicks Minut Disponing the Lands cum pertinentibus without any word of Pasturage was found to carry Common Pasturage in the Moor of Borthwick as being a Pertinent of the Lands Disponed the time of the Minut and not Reserved much more the King Disponing the Lands of Haining not only cum pertnenâ—tibus but cum pascuis et pasturis did carry to Haining the Right of Common Pasturage in the Common of Selkirk being then the Commonty of the Barony so that any Interruptions done since cannot take away the Right of Common Pasturage once constitute by the King and albeit the King had unquestionably granted the Right of Property to the Town thereafter yet that could not prejudge the Common Pasturage of another Constitute before For if Haining claimed this Common Pasturage only by Possession and Prescription Interruptions might be Sustained to exclude the famine but he claimes it chiefly by vertue of his Infeftment as having Right thereto the first day he was Infeft so that his Possession since albeit troubled by this Commonalty yet preserves his Right that the Town cannot alleadge a total and compleat Possession excluding him and thereby taking away his Right by Prescription in their Favour and as to the Towns Charter cum communiis it contains nothing per expressum of this Moor or Pasturage therein nor gives any thing de novo but bears cum communiis adâ—urgum spectantibus which the King might have given though there had not been a Commonty within 40. Miles in the same manner as the common Clauses in all Charters bearing Coal and Chalk Cuningars or Ducats whether there be any or not and the most the Town can pretend by their Charter is that they being a Burgh Erected within the Barony of Selkirk cum communiis may therefore claim Pasturage with the rest of the Feuars of the Barony but cannot exclude them as to the Liberty granted by the King to Ryve out a 1000. Aikers it clearly evinceth that they had not the Property before neither did that take any effect nor could it because the common Pasturage constitute to the Feuars before would have hindered any posterior power of Tillage As to the Decreet against the Tennents of Haining it is in absence the Heretor for the time not being callâ—d and albeit it bears Hainings Predecessor as Provost to be present that will neither import his Consent nor Knowledge Countrey Gentlemen being then ordinarly Provosts of Towns who lived not with them their Affairs at Law were Managed by their Town Clerk and Baillies though the Provosts Name behoved to be insert neither did this Decreet take effect for Hainings Tennents never ceased to pasture as to the Letters they do only acknowledge the towns Head Rooms because in great Commonties it is ordinar for several proprietars to have peculiar Places most convenient for them where they law their Cattel and casts Fail and Divot and which doth sufficiently consist with the Commonty as for the Acts of Court they can prove nothing against Haining The Lords found that the Town of Selkirk had undoubted Right of Pâ—sturage Fewel Fail and Divot in this Commonty and that they had immemorial Possession thereof without any interruption and found that Haining had no Right by vertue of Possession and Prescription but found that by vertue of his Charter anterior to the Towns Right he had Right to common Pasturage in this Moor it being the Common Moor of the Barony but seing he did not sufficiently prove Possession of Fail and Divot but was therein continually interrupted much more then in the Pasturage and that nothing appeared that in the time of his Original Right the Feuars had priviledge of Fail and Divot Therefore the Lords found that he had no Right thereto albeit common Pasturage doth ordinarly carry therewith Fail and Divot yet they found that it was a several Servitude separable therefrom either by Consent or Custom and found that the Town should enjoy their Head Rooms excluding Haining therefrom Iames Colquhoun contra Watson Eodem die JAmes Colquhoun Pipe-maker in Glasgow having gotten a tollerance from George Blair Heretor of Lunloch to dig Clay for Pipes there for certain years excluding all others there being an anterior Tack of the Lands the Tennents grants licence to one Watson for digging Clay there for Pipes the Heretor also concurrs with Watson Colquhoun pursues Watson for Intrusion and to desist from medling with any Clay there and for paying the value of what he had medled with Watson alleadged Absolvitor First Because the licence granted to the Pursuer being exclusive of all others was contra bonum publicum 2dly The licence was posterior to the Tennents Tack who thereby had Right to the whole profits of the Ground and accordingly gave tollerance to the Defender 3dly The Heretor having granted the Tack could not in prejudice thereof give power to the Pursuer to break the arable Ground and there being much more Clay nor the Pursuer could make use of ought to give power to the Defender to make use thereof for that effect The Pursuer answered that a total and negative licence was legal as well as any other total and sole Right and it was free to the Heretor to grant the same but could do no posterior Deed contrair thereto because he had bound up his own hands thereby â— and as to the Tack whether posterior or anterior to the licence it can only give Right to the Tennent uli fruiut colonus to Manure the Ground and reap the profits thereof but cannot give him Right to any Mineral under the superfice whether Coal Lime-stone Clay c. which is reserved to the Heretor and he may make use thereof which necessarly imports that he may break up the Ground to come at it or else the Right were not reserved to him and he is most willing to satisfie the Tennents damnage by opening the Ground neither needs any reservation thereof be exprest because it s implyed in the nature of the Tack which gives only power of the Superfice Tillage Pasturage and Profits thereof but the Tennent has no power to take away part of the Ground or to give licence to any other so to do The Lords Repelled the Defenses and found the Pursuer had the only Right by the Heretors exclusive licence and that the Tennent by his Tack had no Right to this Clay and that albeit his Tack was prior to the
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 Infeâ—t 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
old Rescinded Act pro tanâ—o it must be in the same case as Taxation and Maintenance which is ever accounted debitum fundi It was answered that these burdens Imposed by the Rescinded Parliaments are not in the same case with other publick Burdens especially where it is but a particular Act relating to particular persons and Shires without Citation of them for if they had known of this Act they would have petitioned the Parliament that singular Successors might have been excepted as they were in other Acts of this nature The Lords Suspended the Decreet and found that as they were singular Successors they were not lyable David Dick contra Ker. Iune 26. 1668. DAvid Dick as Donator to the Escheat of Ker insists in a special Declarator for payment of a sum due to the Rebel The Defender alleadged Absolvitor because it being a Bond bearing Annualrent it fell not under the single Escheat It was Replyed that Bonds bearing Annualrent are still holden moveable until the first Term of payment of Annualrent and is Disposeable by Testament if the Defunct die before that Term but here the Rebellion was before the date of the Bond and so the sum fell to the Fisk the day it was Subscribed It was answered that the 32. Act Parliament 1661. declares Bonds bearing Annualrent to exclude the Fisk without any exception or limitation The Lords having considered the Act found that it left Bonds bearing Annualrent in the same case that they were formerly and found that before the Term of payment of Annualrent they were moveable Peterson contra Captain Anderson Iune 30. 1668. CAptain Anderson having taken a Ship whereof Peter Peterson was Master and obtained the same declared Prize by the Admiral upon two grounds one that the Ship was sailed a great part of the company being Hollanders then the Kings enemies The other that albeit it was pretended that the Ship belonged to Swedes yet by several presumptions and evidences it appeared that is was but a conveyance and that the Ship truely belonged to Hollanders There is now a Reduction raised of the Decreet and the first ground thereupon Debated and Decided It was alleadged for the Strangers that they being Swedes their case was only to be ruled by the Treaty betwixt the King and the Crown of Sweden by which it is expresly provided that the Subjects of Sweden having such Passes as are exprest in the Articles shall not be Seased or brought up and particularly in bona homines nullo modo inquirâ—tur viz. Where such a Pass is found aboard and the said Pass being here found aboard the Ship was unwarrantably Seased and unwarrantably declared Prize upon pretence of being sailed with Hollanders because that Article takes away all question about the men and so gives liberty to the Swedes to make use of any Mariners they please It was answered that the Reason of Adjudication was most just and this Reason of Reduction ought to be repelled because the Kings Proclamation denuncing the War gives express warrand to sease all such Ships as had any number of Hollanders therein which must stand as the Rule unless the Swedes had by their Treaty a particular exception derogating from that Rule which they have not but on the contrary the Treaty contains an express provision that they may make use of a Hollands Master and not unless he became a Citizen of some City of Sweden and be sworn Burgess thereof but upon the former ground there needed no such Article for Masters and all might thereby be Hollanders And as to the Article of the Treaty concerning no further inquiry there is subjoyned quod si gravis aliqua suspitio subsit in which case notwithstanding of the Pass Seasure might be made but here there was gravis suspitio that the Ship or Goods belonged to the Hollanders the Master and major part of the Company being Hollanders and the Pass mentioning a Ship of an hundred Tuns whereas this Ship was two hundreth Tuns It was answered for the Strangers that the Kings Proclamation could be no Rule to the Subjects of any other free Prince but the Law of Nations or their own Treaties behoved to be the Rule and by the Law of Nations the King could not hinder his Allies of any Commerce or Trade with His Enemies which they were accustomed or free to do before the War except such Acts only wherein they partaked with his Enemies by furnishing provisions of War or Counterband Goods and so the King by no Proclamation could hinder the Swedes to hire and make use of Hollanders which rather weakned then strengthned his Enemies and in this case the making use of Hollanders was necessar because other Sailers could not be had when the Ship was bought and that Article of the Proclamation ought to be benignly interpret that when any Ship carries Hollenders as Passengers the same should be Seased but not when these were Servants and Mariners to other Nations It was answered for the Captain that the Kings Proclamation of the War behoved to be a Rule to the Kings Judges and that it was most consonant to the Law of Nations and it was impossible without the same to know what Ships did truly belong to Allies and that in the Spanish Treaty with the King that priviledge was specially indulged to the Flandrians not to be quarrelled upon the account of Hollanders because of the Identity of their Language which would have been unnecessar if by the Law of Nations all might have so done The Lords Repelled the Reason of the Reduction and found that ground of the Adjudication that the Ship was Sailed with a great part of the Company being Hollanders Relevant alone and that the same was sufficiently proven by the Testimony of the Steirsman and another Witness of the Company and therefore Assoilzied from the Reduction The Minister of Elgin contra his Parochioners Eodem die THE Minister of Elgin pursues his Parochioners for the Viccarage of some Yeards in Elgin which belonged of old to the Canons of the Cathedral Kirk of Elgin and were by them Feued to the Defenders who alleadged Absolvitor because the Yeards being a part of the Canons Portions and in effect their Gleibs had in no time past ever payed Viccarage which is consuetudinar and local both as to the payment and the kinds for in some places Teind Lint and Hens are payed and in others not but the ordinar Viccarage being Stirks Wool Milk and Lamb there is none of these to be had in these Yeards It was answered that no Prescription could take away Teinds upon the forbearance of demanding it by Beneficed Persons who are but Administrators and cannot Delapidat otherwise all Benefices might be destroyed 2ly Lands that have been always Ploughed and so payed Parsonage and becoming Grass are lyable to Viccarage albeit it cannot be proven that ever they payed any before The Lords found the Defense Relevant unless the Pursuer could prove that Viccarage has been payed out of these
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
umquhil Moâ—ison of Darsie and Dam Nicolas Bruce now Lady Braid then his Spouse bearing Annualrent and a Clause stating the Principal Sum after ilk Term as a Stock to bear Annualrent and Termly Penalties in case of failzie This being called in praesentia It was alleadged for Kinghorne that Annual of Annual was a most Usurary Paction rejected by all Law and our Custom and cannot subsist in whatever Terms it be conceived otherwise by the like Paction the Annual of that Annual might bear Annual and so perpetually multiply and if this were Sustained there would never be a Bond hereafter in other Terms It was answered that Bonds of Corroboration stating Annualrents into Principals by Accumulation have ever been allowed and though that be done after the Annualrent is become due making it then to bear Annualrent there is no material difference to make it bear Annualrent by a paction ab ante but not to take Effect till the Annualrent be effectually due It was answered that Custom had allowed the stating of Annualrents after they were due into a Principal because then being presently due they might instantly be Exacted but Law and Custom hath rejected the other Case The Pursuer further alleadged that she being a Widow and this her Liveliehood Annualrent at least should be due for the Annualrents seing she is ready to Depone that she borrowed money to live upon and payed Annualrent therefore or otherwise the Termly Failzies ought to be Sustained The Lords Sustained the Defense and found no Annualrent due of the Annual nor Termly Failzies seing there was no Charge at the Pursuers Instance against this Defender and that he was a Cautioner but modified for all 100. pound of Expences Bell of Belfoord contra L. Rutherfoord Ianuary 27. 1669. BEll of Belfoord being Infeft in an Annualrent by the Deceast Lord Rutherfoord out of certain Lands pursues a poinding of the ground Compearance is made for my Lady Rutherfoord who alleadged she ought to be preferred as being Infeft in an Annualrent of 2000. merks yearly upon her Contract of Marriage before this Pursuer 2dly That she ought to be preferred for an Annualrent of 2000. merks yearly of additional Joynture wherein she stands also Infeft publickly and albeit her Infeftment be posterior to the Pursuers yet his Infeftment being base not cled with Possession before her publick Infeftment she is preferable The Pursuer answered that before the Ladies Infeftment on her additional Jointure he had used a Citation for poinding of the Ground and is now Insisting for a Decreet thereupon which must be drawn back to the Citation and is sufficient to validat the base Infeftment that it be no more from that time forth repute Clandestine Which alleadgance the Lords found Relevant and preferred the Pursuer to the Ladies additional Jointure It was further alleadged for the Lady that she was Served and kenned to a Terce of the Lands in question and must be preferred as to a third part of the profits of the Lands conform to her Infeftment upon her Terce The Pursuer answered that her Service Kenning and Infeftment of Terce are posteriour to his Infeftment of Annualrent and posterior to his Citation foresaid thereupon It was answered for the Lady that her Terce being a Right Constitute by Law by the Death of her Husband albeit it be Served and Kenned after these Acts are but Declaratory of her Right by her Husbands Death and do Constitute her Right not from the date of the Service but from her Husbands Death which is before the Pursuers Citation so that his Infeftment granted by her Husband before his Death not having been cled with Possession in the Husbands Life it remained at his Death as an incompleat Right which cannot exclude her from her Terce It was answered that a base Infeftment is of it self a valid Right although by a special Act of Parliament posterior publick Infeftments are preferred thereto unless the base Infeftment hath been cled with Possession which cannot be extended beyond the Terms of the Act of Parliament and so cannot be extended to a Terce but as the base Infeftment would have been a sufficient Right against the Husband and his Heirs so it must be esteemed as debitum reale affecting the Ground and his Lady can have no more by her Terce then the third of what was free unaffected before his Death The Lords found the base Infeftment sufficient to exclude the Terce pro tanto and that as to the Husbands Heir or Relict it was a sufficient Right Stirling contra Heriot Eodem die Stirling Son to Commissar Stirling pursues for a modification of an Aliment out of the Liferent of Helen Heriot his Fathers Wife as having the Liferent of the whole Estate The Lords Sustained not the Aliment in respect the Defenders Liferent was very mean and the Pursuer was major and keeped a Brewary and she kept one of his Children and that he was not frugi aut bonae famae Robert Brown contra Iohnstoun of Clacherie February 1. 1669. RObert Brown pursues Iohnstoun of Clacherie for payment of 1200. pounds contained in a Bill of Exchange subscribed before two subscribing Witnesses and marked with Clacheries hand there was several other Bills for greater Sums produced marked with the like mark and none compearing for Clacherie The Lords caused Examine the Witnesses insert who Deponed that Clacherie was accustomed so to Subscribe and one of them Deponed that he saw him put to this mark to the Bill in question several others Deponed that they had accepted such Bills in regard of his Custom and had obtained payment from him without any Debate thereupon The question arose to the Lords whether a Sum above an hundred pound could be proven by such a Writ that had only a mark and having demured upon it before till they should try if any such case had been Sustained formerly and none having been found Sustaining any Writ not being Subscribed with the whole Name or at least the Initial Letters of the Debitors whole Name It was offered by some that Clacheries Oath might be taken ex officio or de calumniâ— not simply to refer the Debt to his Oath but whether that truly he set to this mark before these Witnesses but Robert Brown being a dying the Lords would not defer but decided the Case and found that this Writ being a Bill of Exchange among Merchants and Clacheries custom so to grant Bills of greater importance then this being clearly proven and none appearing for him they decerned against him upon the Bill and Testimonies many of the Lords being of different Judgement and that it was of dangerous preparative to encourage Forgerie but it was Sustained only in all the particular Circumstances aforesaid and not to be a general Rule Iohn Boswel contra Town of Kirkaldie Eodem die THe Town of Kirkaldie having given a in Bill to stop the Interlocutor of the 22. of Iuly 1668. of the Process against them and having objected against that
The Defender alleadged Absolvitor because this Bond being granted without an Onerous Cause after the Provision of the second Contract of Marriage Providing all the Goods Conquest to the Heirs of the second Marriage who were thereby their Fathers Creditors for fulfilling of that Provision no voluntar Dâ—ed done without a Cause Onerous by their Father in Favours of his Daughter of a former Marriage could prejudge them or burden the Moveables acquired in that Marriage It was answered First That the Provision being to the Heirs of the second Marriage they being Heirs could not quarrel but were obliged to fulfil their Fathers Obligation whether for a Cause Onerous or not 2dly Such Clauses of Conquest are ever understood as the Conquest is at the Acquirers Death but does not hinder him any time of his Life to Dispose or Gift at his pleasure which if he might do to any Stranger there is neither Law or Reason to exclude him to do it to his Daughter And albeit it might be interpret Fraud if nothing were left to the Daughters of the second Marriage yet where they have a special Provision and something also of the Conquest with this burden their Father could not be found thereby to Defraud them or to hinder him to use his Liberty Which the Lords found Relevant and Sustained the Bond. Buohan contra Taits February 11. 1669. IN Anno 1623. George Tait of Pirn gave a seisine propriis mâ—nibus to George Tait his eldest Son and a Bond of that same Date bearing that he had given Seisine and obliging him to Warrand the same Reserving his own Liferent Thereafter in Anno 1640. he Contracts in Marriage with Ianet Buchan and for two thousand and five hundreth Merks of Tocher obliges him to Infeft her in the same Lands of Piâ—n whâ—rein his Son was Infeft whereupon she now pursues Reduction of George Tait youngers Infeftment against his Daughters upon these Reasons First That the Seisine propriis mâ—nibus was only the assertion of a Nottar without a Warrand 2dly That the Seisine had not four Witnesses 3dly That this was a clandestine latent Right most fraudulent betwixt a Father and his appearand Heir never having been published or taken effect by any Possession and cannot prejudge this Pursuer who is a most priviledged Creditor and brought a competent Tocher with her 4thly That this being an Infeftment by a Father to his appearand Heir then in his Family it was but as the legittime of Children which is still ambulatory at their Parents Disposal and so must be affected with this posterior burden of the Fathers Marriage It was answered to the first that the Bond of the same Date with the Seisine acknowledging the same is a sufficient adminicle and is equivalent as if the Father had Subscribed the Seisine To the second there is no Law requiring â—our Witnesses to a Seisine for that Act of Parliament is only where a Party Subscribes by a Nottar but relates not to Nottars Instruments Subscribed by themselves upon warrands or adminicles without which they are not valid with 40. Witnesses and without which two Witnesses are sufficient To the third this Infeftment is no ways Fraudulent or Latent seing it is Registrat in the Register of Seisines and Reserves the Fathers Liferent whose Possession is the Sons Possession and cannot be pejudged by a Deed so long posterior thereto To the last Infeftments taken to Children by Parents being Registrat by Parents can never be Recalled The Lords Assoilziâ—d from all the Reasons of Reduction and Sustained the Defenders Seisine Pot contra Pollock February 12. 1669. UMquhile Iohn Pollock having granted a Bond of 5000. Merks to Iames Pollock his second Son of the first Marriage and he having Adjudged thereupon Pot as Assigney by his Wife to her Provision and the Creditors Debts having also Appryzed raises Reduction of Iames. Pollocks Bond and Adjudication on this Reason that the said Bond was without a Cause Onerous given by a Father to a Son as is clear by the Sons Oath taken thereupon and therefore a posterior Debt Lent by Creditors bona fide to the Father is in Law preferable thereto 2dly This Bond to a Son can be but de natura legittimae having no Cause Onerous as if it had born for his Portion Natural and Bairns part In which Case it is Revockable by the Father and the Fathers Creditors though posterior are preferable thereto 3dly This Bond is Reduceable super capite doli as being a contrivance betwixt a Father and a Son to insnare Creditors to Lend to the Father who then drove a great Trade which must be inferred from these circumstances First The Son was foriâ— familiat and sufficiently provided before 2dly The Bond bears no Annualrent and the Term of payment is after the Fathers Death and remained ever latent betwixt the Parties without any thing following thereupon and these Debts were all Contracted within a very little after this Bond which was only a year before the Defuncts Death The Defender answered that the Reasons are no ways Relevant for there is neither Law nor Reason to hinder any person to give Bonds or Gifts freely there being no Impediment the time of the granting neither hath the Law any regard to posterior Creditors but in personal Debts whether for Causes Onerous or not the first Diligence was ever preferable nor was it ever heard that a posterior Onerous Obligation did Reduce or was preferred to a prior gratuitous obligation upon that ground that the prior was gratuitous And to the second Albeit this Bond were in satisfaction of a Portion Natural as it is not yet being Delivered to the Son who iâ— forisfamiliâ—t he can be in no other case then any other person to whom a bond were granted without an Onerous Cause As to the third Dolus non presumâ—tur and all machinations being only animi are only probable scripto vel juramento and can be inferred by no circumstances The Pursuer answered that albeit in dubio dolus aut câ—lpa non preâ—umitur yet it is doubtless probable otherwise then by the Oaths of the Parties whereunto Truâ—â— is never to be given in relation to their own shame contrivance or fraud and therefore matâ—ers of fact do necesâ—arly infer and presume fraud in many cases and in none more then this where the Deed was clandestine and latent betwixt Father and Son and where the Fathers Estate was thereby rendred insuffiâ—ient to pay both his Dâ—bt and the others contracted shortly thereaâ—ter and if it were sustained that such latent Rights betwixt conjunct persons were valide in prejudice of posterior Creditors contracting bona fide and not knowing the same all Commerce behoved to cease for every man might give such Bonds to his Children and continue to Trade and to borrow Money and upon the Childrens anterior Bonds be totally excluded The Defender answered that our Law by a special Statute in Anno 1621. having determined the cases of presumptive fraud and
legitimo 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
Lesly having Fraughted a Ship belonging to Bailly Guthry in Dundee to carry a Loadning of Wheat and Oats from Athol to Leith the Skipper did put in by the way at Dundee and there the Ship received a Crush by another Ship whereby the Salt-water entered amongst the Victual and thereupon the Owners and Skipper caused Disloaden the Victual and put it up in Lofts and Bailly Guthry the next day after the Crush gave notice to Robert Lesly in Dundee Lauchlens Correspondent and who made the Bargain for him to make it known to Lauchlen what had befallen the Ship and Loadning who within two dayes after came to Dundee and was required to Receive the Victual which he refused and by the Probation adduced in this Cause it was found that it was the Skippers Fault that he had put in to Dundee and so he and the Owners were found lyable for the damnage and interest of the Merchants and that the Merchants should be only obliged to take back that Part of the Victual that was unspoiled and the Owners should be lyable for the Price of the whole as it would have given at Leith if the Skipper had keeped his Course deducing the Price of the sufficient Victual as it now gives and a Commission being granted to certain Persons in Dundee to visit the Victual and to see what condition it was in they reported that 36. Bolls of it was sufficient Mercatable Wheat and that the Oats was damnisied in 20 Shilling the Boll and as to the rest two reported that it would yet be Brisket for Ships or Houshold Servants and two reported that it was spoiled but spake nothing further The question arose to the Lords upon the Commission at the Advising thereof whether the Owners and Skipper should be lyable for the damnage that was done before the Advertisement given to the Merchant or for the damnage that ensued thereafter because the Victual being laid together without separating the wet from the dry had het and spoiled thereafter and if it had been separat at first the damnage would have been very litle and so the question was whether the Owners and Skipper were obliged to have separat the wet from the dry and so to have offered it to the Merchant or if the offer in general to the Merchant to receive the Victual was sufficient though he did not desire them to separat the wet from the dry or that they did not offer satisfaction or security for the damnage of what was wet The Lords found that seing the damnage had fallen after and through the occasion of the Skippers delay he and the Owners were obliged to separat the wet from the dry and to have used diligence to prevent future damnage wherein having failzied they found them lyable for the whole damnage both before and after the offer the next question arose was whether the Skipper and Owners were obliged to take the spoiled Victual and pay the Price thereof as if it had been sufficient or if the Merchant was obliged to take it and the Owners to make up the damnage The Lords found that seing the Victual remained yet in specie and was not wholly Corrupted but by the report appeared to be useful for Ship Brisket and seing the property thereof still remained in the Merchant and the Owners were only lyable for damnage They ordained the Merchants to Receive the wet Victual and gave Commission to the same Persons to report what it was worse then the Price it would have given at Leith if the Voyage had held The Countesse of Cassills contra The Earl of Cassills February 22. 1670. BY Contract of Marriage betwixt the Deceast Earl of Cassills and his Lady he is obliged to Infeft her in certain Lands with absolute Warrandice and obliges him that the Lands did pay then and several years before 6000. Merks of yearly Rent beside Kanes and Customs and over and above Teinds and Feu-duties and if it shall please the Lady within six Moneths after the Earls Death rather to choise six thousand Merks of free Rent then to retain the Possession of the Land and to give a Tack to his Heirs and Successors of the Liferent-lands Then and in that case he obliges his Heirs and Successors to pay her 6000. Merks yearly Therefore the Countesse has made it in her option and offers to take and Pursues the Earl her Son to pay yearly the said Sum of six thousand Merks of free Rent who alleadged that albeit that Clause be mentioned to be free Rent yet he must have allowance of Cess Maintainance and other publick Burdens because by free Rent can only be understood free of Teinds and Feu-duties in respect that this being a Tack-duty for the Liferent-lands the Lady thereby can be no further free then if she enjoyed the whole Lands which the Earl is only obliged to make worth 6000. Merks of yearly Rent over and above Teind and Feu-duty but neither does it bear generally of free Rent much less of publick Burdens and therefore the subsequent Clause for the Tack-duty albeit it bear free Rent yet it can only be understood to be free of Teind and Feu-duty and not to be free of publick Burden which is further cleared by the Act of Parliament 1646. Ordaining all Liferenters to hear proportional Burden for any Annualrent or Tack-duty belonging to them in Liferent unlesse they were expresly freed of Maintainance It was answered for the Countess that she oppones the Clause of her Contract bearing free Rent without â—â—nitation and Contracts of Marriage are to be extended in favours of Women and as to the Act 1646. the same is Repealed and not Revived again The Lords found that by the Contract of Marriage the Countesse was noâ— free of Cesse and Maintainance which were the only Points at Inâ—â—â—â—cutor But if any Debate arose concerning the ordinarâ— Taxation or the Outrikes or allowance to Militia Horse the Lords would hear the Parties thereanent and accordingly the next day found the Clause did free my Lady of the ordinar Taxation Militia and so much of the Cesse as the Tennents of the Lands payed to my Lord. Murray of Achtertire contra Sir Iohn Drummond Eodem die THe Deceast Earl of Tulliâ—airn having Wodset the Lands of Logy-Almond to William Murray of â—chtertire by a Contract of Wodset in February 1656. by which the Earl Assigns Achtertire to the Mails and Duties of the Lands due for the Cropt 1656. at Whitsunday or Martimess or any other Term and obliges him to Deliver to him the Keyes of the House and to enter him in the Possession at Whitsunday 1656. The Earl having Sold the Lands to Sir Iohn Drummond whose entry was to be at Whitsunday 1668. and having used an order of Redemption in the Earls Name because the Reversion did not extend to the Earls Assignies and having obtained Declarator Decerning Achtertire to denude himself of the Lands who in obedience of the Decreet grants a Renunciation Reserving to himself
more and even before Contracting of the Creditors Debt her Infeftment must stand valid seing it was less than what was her Right The Lords found the Vitiation of the Contract to have been after the Marriage and Sustained the Declarator and ordained the Ground to be Poynded for what she wanted of her Infeftment of 700. merks for bygones and for the whole in time coming unless it were proven by the Wifes Oath that she consented to the alteration of her Contract Margaret Livingstoun contra Burnâ— Iune 15. 1670. MArgaret Livingstoun as Donatrix to the Bastardy of a Mason in Falkirk pursues a Declarator of the Bastardy and Restitution of the Goods against Burns who alleadged no Process because the Libel condescending upon the Bastards Father and Mothers Names and that the Defunct was Bastard the same must be proven by VVitnesses and so the Summons must be continued it being a known Maxime that all Summons not instantly verified either by Presumption or Probation by VVrit but which must be proven by VVitnesses or Oath must be continued The Pursuer answered that albeit ex alundante she had condescended on the Bastards Father and Mother yet whoever were Father and Mother that they were not Married together is a Negative and proves it self and needs no further Probation but is presumed and puts the burden of Probation upon the Defender that they were really Married at least so holden and repute 2dly Albeit Probation were necessar that the Defunct was either Bastard or so commonly repute the Probation may proceed upon the first Summons in favorem Fisci and is so accustomed in Declarators of Bastardy and in Declarators of Non-entry wherein though the Death of the Vassal be Libelled yet the Summons is not continued The Lords found that the Summons behoved to be proven that the Defunct was at least holden and repute Bastard and that Bastardy was not presumed but they Sustained the Declarator without continuation and that the Declarator might proceed upon the first Summons Scot of Thirlestoun contra The Laird Drumlanrig Eodem die SCot of Thirlestoun having Adjudged cerrain Lands Charges Drumlanrig Superiour to receive him who Suspends and alleadges he ought to have a years Rent conform to the late Act of Parliament 1669. It was answered that this and all other Acts have Effect ad futura But not only this Adjudication was led before the Act but Drumlanrig was Charged before the Act and having no just reason to Disobey the Charge when he was Charged he cannot claim the benefite of a subsequent Law It was answered The Tenor of the Act was Declaratory and bear a general Clause that Adjudications should be in all things as Apprizings The Lords found that seing the Act did not expresly relate to bygones It could not extend to any Adjudication whereupon a Charge was given before the Act. Lord Iustice Clerk and his Son Sir Alexander contra Earl of Hume Eodem die THere being a Contract betwixt the Earl of Hume and Iohn Stuart of Coldinghame and Francis Stuart sometime Earl of Bothwel whereby the Lordship of Coldinghame was agreed to be possest by the Earl of Hume until he were payed of nineteen thousand Pounds and also that the Earl should uplift two hundreth pound Sterling of Annualrent â—orth â—hereof to him and the Heirs-mail of his Body and it was Declared that the Possession for the nineteen thousand pound should only be for the Annualrent thereof fructibus non computandis in sortent Sir Alexander Hume as having Right to this Contract by progress did pursue a Declarator against the late Earl of Hume that in regard his Predecessor the Earl of Hume Contracter Died without Heirs-male of his Body and he continued to Possess who had no right to the Annuity of two hundreth pound Sterling that his Possession did satisfie the nineteen thousand pound and purged the Right the said umquhil Earl dying there is now Summons of Transferrence at Sir Alexanders instance against this Earl of Hume as Representing his Father and also therein a Declarator against this Earl as appearand Heir that the Contract was satisfied and extinct by Intromission and the Lands Liberate Compearance is made for an Appryzer who produced his Infeftment and who had apprized the Lordship of Coldinghame and all Right thereof competent to the late Earl of Hume who alleadged no Process for the conclusion of Declarator against this Earl of Hume because all Parties having Interest were not called viz himself who had Denuded the Earl of Hume and who is not cited The Pursuer answered that this being a Personal Contract with the Earl of Hume whereupon no Infeftment had followed seing the original Right was in no Register he was not obliged to search the Register for the Infeftments of Appryzers but it was sufficient for him to call the appearand Heir of the Contracter But seing this Alleadgeance could not be proponed for the Earl of Hume being jus terâ—tij neither by the Appryzer unless he had produced his Right to verifie the same instantly seing he now compears for his Interest he may be admitted and heard to Defend thereupon in causa but not to delay or exclude the Process till a new Citation but according to the Lords ordinar custom he may see the Process in the Clerks hands and propone his Defense as the Lords have done in the same Process against one Park another Appryzer The Lords Repelled the Defense but allowed this Appryzer as they had done the other to see in the Clerks hands and to be heard upon his Right and Ordained all the Advocats compearing for the Defenders to produce any other Interest in their hands and not be delay the Process by dropping them in severally Langlands contra Spence of Blair Iune 17. 1670. LAnglands pursues Spence of Blair for Reduction of his Rights of certain Lands granted by Hamiltoun of Blair his Author because Hamiltoun was Inhibit at the Pursuers Instance before he granted these Rights to the Defender It was alleadged for the Defender Absolvitor because the Inhibition was null the question being of Lands lying within the Regality of Culross and the Inhibition was not Execute at Culross the head Burgh of the Regality but at Pearth the head Burgh of the Shire and for instructing that Culross was a Regality the Lord Colvils Infeftment was produced which though it bear not expresly a Regality yet is bears a Bailirie with power to Repledge which importeth a Regality and accordingly the Bailzie and not the Sheriff makes count in Exchequer and Briefs are direct to the Bailzie and there is produced an Inhibition Anno 1657. and another in Anno 1666. Execute at Culross The Pursuer answered that Culross was never denominat holden or repute a Regality but a Bailliry and though the power of Repledging be a special priviledge of Regality yet there are many other priviledges thereof not consequent upon the Repledging 2dly The Pursuer having followed the ordinar course used the time of his
fructus consumptos suos It was answered that a Title that needs Reduction may be the Ground for Possession bona fide but this is absoltely null by Exception 2dly The obtainer of the Decreet was in pessima fide because imediatly after the obtaining it it was Suspended and the Tacks-man was able to instruct that there was no Duties resting at that time and though Protestations were obtained yet the Suspension was never Discust against the Tacks-man The Lords Repelled this Defense also The Defender further alleadged that albeit he would make no opposition against the first Tack yet the second Tack could have no effect against him because before it was cled with Possession Robert Menzies setter thereof was denuded in favours of Birthwood from whom the Defender has Right and it is unquestionable that a Tack not attaining Possession is no real Right and that a singular Successor Infeft before Possession on it will exclude it 2dly As the Tack was not cled with Possession so Robert who set it had no real Right in his Person when he set it but only the Decreet Arbitral The Pursuer answered to the first that he opponed his new Tack which contained not only a Ratification of the old Tack but a new Tack de presenti for five merk and so was like a Charter by a Superiour with a novo damus whereby the Tacks-man might ascribe his Possession to any of the Tacks he pleased and if this Tack had born expresly a Reservation of the Fathers Liferent for eighty pounds yearly it would have been unquestionably a valide Tack from the Date and Payment to the Father by the Reservation would be by vertue of the new Tack as well as of the old So likewise the Tacks-man might Renunce the old Tack and retain the new or if the new Tack had been taken without mention of the Old the same would have been cled with Possession albeit it could not effectually exclude the payment of fourscore pounds to the Father during his life as having a better Right by the Reservation As to the second Alleadgeance albeit Robert who set the Tack was not Infeft when he set it yet Robert being thereafter Infeft his Right accresced to the Tacks-man in the same manner as if he had been Infeft before fictione juris It was answered to the first that the new Tack did not bear a Reservation of the old but the Tacks-man having two Tacks in his Person at once although he might quite either of them or declare to which of them he ascribed his Possession before the interest of any other Party yet not having so done he must be holden to Possess by the first because he continued to pay the Tack-duty of the first and never payed the Tack-duty of the second till the Setter was Denuded To this it was answered that the payment to the Liferenter who had a better Right did not import the Possessing by the first Tack and the Tacks-man needed not declare his option till he was put to it but Law presumes that he Possessed by that Right which was most convenient for him As to this Point the Lords found that the Tacks-man might ascribe his Possession to either of the Tacks he pleased both of them being set for a distinct Tack-duty and that agibatur by the second Tack that the Fathers Liferent should be Reserved As to the other Point The Defender alleadged that the Infeftment of Robert who set the Tack could not accresce to the Tacks-man because the same day Robert was Infeft he was Denuded in favours of Birthwood and he Infeft so that it must be presumed that he was only Infeft to that effect that Birthwoods Right might be valide 2dly It was offered to be proven that Birthwood procured Roberts Infeftment by his own Means and so it cannot accresce to any other in his prejudice It was answered that whoever procured the Infeftment of the Common Author the fiction of Law did draw it back to all the Deeds done by that Author that might arise from that Infeftment which cannot be divided or altered by the Acting or Declaration of either or both Parties Which the Lords found Relevant and found the Infeftment did accresce to the Tacks-man in the first place whose Tack was prior with absolute Warrandice Lord Balmerino contra Hamiltoun of Little Prestoun June 22. 1671. Wishart in Leith did grant Infeftment of an Annualrent of fourty pounds yearly out of two Tenements in Leith in any part of them Which Annualrent by progress belonged to Mr. Iohn Adamson and after the Constitution of the Annualrent the two Tenements were Transmitted to different Proprietars and now the one belongs to the Lord Balmerino and the other to Hamiltoun of Little Prestoun the Annualrenter did only insist against Balmerino's Tenement and upon an old Decreet of Poinding of the Ground of that Tenement hath continued in Possession and Distressed Balmerino Who having Suspended on this Ground that the Annualrent being out of two Tenements whereof he had but the one he could be only lyable but for the one half The Lords found that the Annualrenter might Distress any of the Tenements for the whole but reserved to Balmerino his Relief as accords Whereupon Balmerino now pursues Little Prestoun to Repay him the half of the Annualrent for which he was Distressed because he having payed did liberate Little Prestoun of the Annualrent which affected both Tenements they being now in different Heretors hands behoved to infer a proportional Relief as is ordinar in all Annualrents Constitute upon any Barony or Tenement which thereafter comes to be divided The Defender alleadged Absolvitor because he had bruiked his Tenement much more then fourty years before this Pursuit free of any such Annualrent and therefore had prescribed the freedom thereof The Pursuer answered that Prescription was hindered by the Annualrenters Possession in getting his Annualrent which though it had been but by a Personal Obligement it would have preserved his Right intire to all effects in the same manner as payment by a principal Debitor hinders the Cautioners Bond to Prescribe though he were free thereof for fourty years It was answered that albeit there might be ground for the Reply where the Annualrent is Constitute out of one Barony or Tenement whereon Infeftment may reach the whole yet it cannot hold in this case where the Annualrent is Constitute upon two distinct Tenements and where there behoved Seasing to be taken upon both of them and if omitted upon one that would be free The Lords found that payment of the Annualrent out of any of the Tenements saved Prescription as to both Leslies contra Alexander Iaffray Eodem die LEslies pursues Alexander Iaffray and others for producing of Writs and counting anent a Wodset Right as being satisfied by intromission and that as appearand Heirs ad deliberâ—â— dum Wherein the Lords refused to Sustain the Summons for Compt and Reckoning but only for Exhibition albeit there was a
tempore otherwise then by his going out to publick Meetings at Kirk and Mercat nor is there any necessity to condescend on the kinds of Diseases which even Physitians themselves and the most skilful can hardly determine And as to the first Defense offering to prove that the Defunct was in Health it is contrare to the Libel and no ways competent for in the case of contrare alleadgeances the Pursuer offering to prove Sickness and the Defender offering to prove Health at the same time the Pursuer as being in the Libel must be preferred especially considering that where such Deeds are procured through importunity from Sick and Weak Persons who would do any thing to get leave to Die in peace the Contrivers by the same facility may debar the accesse of any but such as they have confidence in and who have cuncurred with them in the Contrivance so that the Disponers Sicknesse is difficillimae probationis yet quaelibet probatio sufficit as in this case within a day or two of the Disposition my Lord was put to violent nature to attempt to go to the Mercat and three days after to the Kirk in both which attempts he failed which doth sufficiently presume that he was Sick before and was not able to cover his Sicknesse for a little time to attain the Evidences that Law requires to infer Health but if a contrare probation should be Sustained or preferred as more pregnant and which would be by familiar Persons in the House and concurrers in the Contrivance this ancient and excellent Law would easily be elided and as to the evidences of Health they are no way Relevant neither are any private acts but the Law hath justly determined that the Disponer must appear publickly in the solemnest Meetings that thereby it may be known that he is able to abide the Air and that matters of this importance be not probable by two picked out prepared Witnesses but that the samine be cleared by the whole Witnesses of a Kirk or Mercat which cannot all be Brybed and no few Witnesses dare adventure to Depone against that common knowledge so that no private or domestick acts in or about the House can be equivalent to coming to Kirk and Mercat And as to the second Defense that the Defunct came out to Kirk and Mercat it ought to be Repelled because the pursuer offers to prove that he was supported The Pursuer answered that the Reply was not Relevant unlesse it were condescended quomodo supported and that it was by upholding the Defunct under the Oxter or by the Elbow but it is not Relevant to alleadge that the Defunct took any of the Company by the hand or that they took him by the hand especially if it was in rugged or uneven places in respect of the Defuncts age and that it is offered to be proven that he was ordinarly accustomed to take these who walked with him by the hand in such places and for this there was alleadged a Practique lately done by the Lords betwixt Pargilleis and Pargilleis whereby a Disposition by Pargilleis was Sustained because he came to the Mercat of Calder albeit he was helped to and from his Horse and up and down the Stairs and that he was not able to tell Money and was never at the Kirk thereafter and likewise a Practique in Anno 1647. was alleadged whereby Graham Merchant in Edinburgh having made a Disposition to his Wifes Daughter the same was Sustained because he Lived a long time and did his Affairs in the House and wrote the Disposition being two or three sheet of Paper all with his own hand which is found sufficient though he did not go out to Kirk or Mercat The Pursuer answered that the Reply was most Relevant even though the supporting were only by the hand for albeit where there were reiterat acts of going abroad without design such circumstances would not be noticed yet where the going abroad was so near to the Disposition and evidently done to validate the same it hath been ultimus conatus naturae and hath not been of custom but of necessity so that when such an attempt is made of design if the Disponer have not so much strength as to walk without the help of any hand it infers clearly the weaknesse and continuance of the Disease The Defender repeated his alleadgeance aâ—d offered to prove that not only the Defunct went out to Kirk or Mercat but that he went freely by his own strength no Body touching him The Lords being desirous that neither Party should have the sole probation by picking out such Witnesses as made most for them but that all the Witnesses might be adduced did before answer appoint either Party to adduce Witnesses to instruct the Defuncts condition the time of the Disposition and thereafter and anent the manner of his going abroad and there being a great multitude of Witnesses adduced by either Party the Lords considered the Relevancy and Probation both together by which the Lords found that the Reason of Reduction was relevantly Lybelled and that it was sufficiently proven that the Defunct had contracted the Disease whereof the Died before the Disposition and as to the Defense and Reply the Witnesses proved all clearly that he was supported to the Kirk and from it and that he fell a swoond in his return but the Lords found it not necessare that the Defunct should both go to Kirk and Mercat unsupported but that either was sufficient but that where both was attempted shortly after and upon design the manifest failing in the attempt in going to the Kirk did much weaken the prior attempt in going to the Mercat As to which the Lords did consider that the going free to the Mercat behoved to include the free going to the Mercat place and returning back from the same not being supported in any place of the way so that albeit many Witnesses Deponed the Defunct walked freely none being by him in some parts of the way coming and going there was no number of Witnesses that proved his walking freely all the way coming and going even while he was within the Town but that many Witnesses proved that he was supported some in the whole way and some as to several places some by the Oxter some by the Elbow and most by the hand Therefore the Lords found the Reply Relevant of supporting even by the hand in any place of the way within the Town whether Even or Rugged and found the same sufficiently proven and therefore Reduced the Disposition albeit the Defuncts custom to take those who walked with him by the hand was also proven whereunto they had no regard this going to Mercat being so soon after the Disposition and so evidently of design to validat it and the Defunct never having gone out after except to the Kirk when he was supported and fell a swoond and as to the Practique that in Anno 1647. was not produced but it was in consideration of a Sum left to
the Church by that Disposition and was generally cryed out against by all Persons yet una hirundo c. And as for Pargilleis Case the Lords perused the whole Debate and Testimonies and found that Pergilleis Lived near a Mile from Calder and that being an old Guttish Man he was accustomed to be helped to and from his Horse and that he Rode to the Town but that he Lighted then and walked freely through the Mercat and up a Brae to my Lord Tarphichans House and returned again to his Horse without any help either by the hand or otherwise and regarded not that he was helped up and down Stairs or to and from his Horse which the Law doth not require but only the going freely from the Entry of the Town to the Mercat place and back again unsupported The Lords did also find none of the private acts alleadged upon Relevant to prove Health or equivalent to going to Kirk or Mercat and that there was no necessity to condescend on particular Diseases Ioachim Burnmaster contra Captain Dishingtoun Iune 29. 1671 CAptain Dishingtoun having obtained a Decreet before the Admiral Adjudging a Ship taken by him at Sea the time of the late War with Holland whereof Ioachim Burnmaster was Master the said Ioachim raised Reduction of the said Admirals Decreet on these Reasons that his Ship and whole Goods did belong to the Subjects of Sweden his Majesties Allies and who had a particular Treaty with the King bearing expresly that no Person should be Seised who had a Swedish Pass in the Terms particularly exprest in the Treaty Which Pass the Pursuer had and produced when he was taken and yet he was declared Prize upon pretence that three of his Company were Hollanders albeit the Treaty bears expresly that where such a Pass is found ulterius nihil exigatur in bona aut homines nullo modo inquiratur and upon pretence that the Oaths of the Master and Company were contrare to the Pass and proved that there were other owners then these in the Pass and other Goods viz. 15. Hogs-heads of Wine and a quantity of Wine and Brandy wine and Paper and that the Ship in question was not then Bought by the Swedes nor did not go to or from the parts mentioned in the Pass albeit none of these saids points be Material nor did infer that the Ship or Loading or any part thereof did belong to the Kings Enemies but did belong to the Swedes his Allies and Confederats so that albeit they had had no Pass or an unformal Pass their Goods could not be taken from them there being no Article in the Treaty declaring that the not having a full and formal Pass should make such Ships Prize but only that the having thereof should keep them from all question or inquiry The Defender alleadged Absolvitor because the Decreet of Adjudication was justly and Warrantably given for Contrivances the time of the War being most ordinar the Dutch did frequently palliat their Trading under the pretence of the Kings Allies and in this Case it is evident that the time of the Pass this Ship was in Holland of a Dutch Build belonging to an Hollander Residing there and no pretence of Buying the same by a Swede for a long time after as appears by the vendition produced which does not bear that the Ship was sold to any Swede or for their use but to a Swedish Factor in Holland without mentioning to whose use and so is justly suspect to have been for an other Dutchmans use especially being found Navigable with three Dutchmen in the Company and no Swede hath ever yet declared upon Oath that this Ship and Goods belonged to them for by a Certificat of the Swedish Chamber of Commerce produced that two Swedes did declare that they intended to Buy a Ship in Holland called the blew Lilly and yet the Pass of the same date bears that they swore that the blew Lilly belongs to themselves and no other and by the vendition the Name of the Ship was not the blew Lilly so that all hath been but a Contrivance and that there is nothing produced that necessarly evinces that the Ship and Goods belonged to the Swedes only and seing the Pass is so palpably false in all the substantial points required by the Treaty and by the Oath of the Pursuer himself he cannot cloath himself with the Treaty which he hath so grossly transgressed nor hath he adduced sufficient proof that the Ship and Goods belonged to the Swedes And whereas it is alleadged that the being Sailed with Hollanders is no ground of Seisure by the Treaty the same is opponed which in the next Article to that alleadged upon for not enquiring in the Men and Goods bears that Seisure shall not be made where such a Pass is nisi gravis suspitio subsit and there could be no better ground of suspition then that the Master when he was taken acknowledged the Contents of the Pass not to be true or conform to the Treaty and that a considerable part of the Company were Dutches and as for any Letters produced they are impetrate since the War upon misinformation The Lords adhered to the Decreet of Adjudication and Assoilzied from the Reduction and found the verity of the Pass canvelled by the Testimonies of the Skipper and Company and the Certificat and that most of the material requisits in the Passe were wanting and no sufficient Evidence that the whole Ship and Loadning did truely belong to the Swedes Beidmen of the Magdalen Chappel contra Gavin Drisdail Iune 30. 1671. IAnet Rud having mortified an yearly Annualrent of a Merk Scots out of a Tenement of hers to the poor Beidmen of the Magdalen Chappel they pursue Gavin Drisdail now Heretor of the Tenement for Poinding of the Ground Who alleadged Absolvitor because he has bruiked the Tenement free of that Annualrent for more then fourty years so that the Right thereof is prescribed It was answered that prescription runs not against the Poor and things mortified for pious uses 2dly They are in the same condition with Minors having Overseers chosen yearly 3dly The years of prescription must be accompted abating the times of Pestilence and War when there was no Session It was answered that prescription was the great security of the Leiges and hath no exception by the Act of of Parliament but only Minority and neither by the Civil Law or our Custom is the time of prescription compted per tempus utile but per tempus continuum in regard of the length of the longest prescription The Lords Sustained the Defense of prescription and Repelled the Replyes Brody of Lethim and the Laird of Riccartoun contra The Lord Kenmure Iuly 1. 1671. BRody of Lethim as having Right from Riccartoun having several years agoe obtained Decreet against the Tennents of the Mains of Kenmure thereafter upon a motion for the Viscount of Kenmure the Decreet was stopped and now the Pursuers desire out their Decreet It
of Breives to serve Heir wherein no Service followed or by Revocking deeds done by the Defunct in his Minority Iune 28. 1670. Eleis of Southside contra Casse Behaving as Heir was not inferred by the appearand Heirs having right or tollerance from Appâ—yzers and intrometting thereby even within the Legal but was inferred by continuing the Defuncts Possession before obtaining such Warrand and that any Creditor though not Appryzer pursuing the appearand Heir behaving as Heir and he Defending upon the Right of an Appryzing that the Creditor might Summarly by Reply prove satisfaction of what he truly payed out by intromission or present payment and thereupon he was obliged to Assign or Dispone to the Creditor Iuly 11. 1671. Maxwel contra Maxwel Behaving as Heir was not inferred simply where the Defender was Infeft as Heir to her Mother her Father and Mother being Infeft in Conjunct see upon their Contract of Marriage by which there was probable ground to think that her Mother was Feear and not her Father Iuly 12. 1671. Gairns contra Sandilands BILLS OF EXCHANGE being accepted and before the Term of payment the Accepter dying no Exchange or Re-exchange was found due but the obtainer of the Bill might either return upon the drawer for single value or proceed against the Successors of the Accepter This Bill was protested for not payment at the dwelling House of the Defunct Iuly 3. 1664. Kennedy contra Hutcheson A BLANK Bond as to the Creditors Name was found to constitute the Receiver thereof to his own behove Creditor and that it would be affected with his Debâ—s and Deeds and fall under his Eâ—cheat as if his Name had been filled up before and before any other Name was filled up shown or intimat an Arrester being Creditor to the person who got the Bond is preferable to him whose Name is filled up therein November 11. 1665. Telzifer contra Geddies debated again and so decided December 1. 1665. A blank Bond being filled up by him who râ—â—eived it in Name of another and delivered to that other and by him shown to the Debitor these particulars being proven by Witnesses ex officio the â—â—â—ty whose Name was filled up was preferred to a Creditor of him to whom the Bond was first delivered blank arresting all Sums due to him in the Debitors hands but after filling up and shewing of the Bond to the Debitor without necessity of an intimation by Instrument Ianuary 18. 166â— Birnie contra Heâ—drieson and George Vide Compensation inter â—osdem A blank in a Disposition whereby Lands are Disponed to two for themselves and the Creditors of the Disponer afterspecified after which several â—ines were written with another hand inserting the particular Creditors and Sums without mention of the Writer of that part of the Writ whereupon it was presumed that that blank was filled up after the date of the Writ and after another Creditors Inhibition unless the contrary were proven not by the Trusties oath but by the Witnesses insert or other Witnesses above Exception Ianuary 16. 1670. Lady Lucia Hamiltoun contra the Creditors of Monkcastle BLOODWITS were found due to a Superior Infeft cum Bloodwitis albeit not a Baron holding immediatly of the King December 12. 1665. Cranstoun contra Pringle BONAE FIDEI POSSESOR â—acit fructus consumptos suos though he have not possessed so long as to obtain a possessory â—udgement November 18. 1664. Guthrie contra Laird of Sornbeg and though the other Parties Infeftment was Registrate Bonae â—idei possesior c. was found Relevant to defend a Party possessing by a Contract with a minor though Reduced upon minority as to the years uplifted before the Reduction February 16. 1666. Earl of Wintoun contra the Countes of Wintoun Bonae â—idei possessor was found Liberat from the Mails of a Booth whereof he had Tack till a Sum were payed albeit the Setter was but Liâ—erenter and had purchased the Tenement to himself in Liferent and to his Son in Fee but the Father was commonly repute Feear and did not set the Tack as Liferenter yet the same was excluded from the duties before Citation and was not found to have Right from a Warning he had made after his Fathers death by chalking of the door without any other intimation February 16. 1669. Hamiltoun contra Harper Bonaâ— fides of Creditors lending their Money and seing a Wifes Contract Registrate bearing such a sum to be imployed was found not to defend them against the Wife who obtained a Declarator of Vitiation of the principal Contract by her Husband and Fathers diminishing the â—ocher and Ioynture to be extended and amended as it was at first Iune 11. 1670. Hunter contra the Creditors of Peter Bonaâ— fidei possessor c. was found of no effect to one who obtained Decreet of Removing for not payment of the Duties in absence and produced not his Infeftment but an Infeftment of another person of the same Name which being a â—raudulent deed he could not thereby have a Title bonae fidei Iuly 21. 1671. Neilson contra Mâ—nzies of Enoch BVRGHS were found to have no power to stent any part of the Charges of their Commissioners sent to the Convention of Burrows upon these who had no Trade in their Town but only Tenements or for any part of a second Ministers Stipend unless it had been due by Law Sentence consent of party or prescription February 1. 1669. Boswel contra the Town of Kirkaldie The priviledge of Burghs by the Act of Parliament that no Trads-men should exercise their Trade in Suburbs was found only to extend to such Suburbs as had no priviledge but if the Suburbs were erected in a Burgh of Regality or Barony or were within a Barony the Inhabitants might freely use these Trades albeit some of them had given Bond to pay such a Duty for the Liberty thereof The same could only bind themselves and not their neighbours or the Heritors Ground with a Servitude without his consent Iuly 21. 1669. Town of Pearth contra the Weaveâ—s in the Bridgeâ— end of Pearth A BVRGH ROYAL having obtained Decreet against certain persons in a Burgh of Borony to desist from Merchant Trade and impowering the Burgh to sease on the Merchandise and the persons of the contraveeners was found not to militate against others than those individual persons and not against the Lord or Baillies of the Barony and that there was no waâ—rand in Law to inâ—arcerate persons hoc ordine February 13. 1663. Town of Linlithgow contra unfree-men of Borrowstounnâ—sâ— A Burgh Royal pursuing a Burgh of Barony for desisting from Merchant Trade The Lords â—ound the Letters orderly proceeded till the Burgh of Bâ—rony should find Caution to desist from Merchant Trade in general but would not suffer to condescend upon particulars as to the retailing of Wine c. which had been forborn by the Lords these 30 or 40. years Iune 24. 1664. Town of Cowper contra Town of Kâ—oucher A Burgh-Royal having immemorâ—al
Discharges 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. â—664 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 â—ound 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 Linâ—â—thgow 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 â—ucrative 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 â—osse 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 â—ut 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 presentâ—a 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. Donâ—ldson 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 â—edling so in the future should be lyable both for intromission and omission as Tutors Iune 10. 1665. Swinâ—oun contra A PRYZE Ship was found not justly taken belonging to a Prince holding of the Kings Enemies unless he contribuâ—e to the War Ianuary 4. 1667. Harison contra Laird of Ludâ—uhurn 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 â—oâ—sed 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 â—rize Ship was found justly adjudged as carrying Counterband-Goods albeit a Swedish Shâ—p and by the Swedish Treaty such Counterband-Goods were allowed to the Sweds which was only understood they being the gâ—owth 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 â—ound 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 concoâ—rse and conâ—ortship 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 Coâ—nterband-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 â—ry 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
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 Resignâ—tion 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