Selected quad for the lemma: cause_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	absence_n	absent_a	appoint_v	20	3	6.9443	4	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A23464	The estates, empires, & principallities of the world Represented by ye description of countries, maners of inhabitants, riches of prouinces, forces, gouernment, religion; and the princes that haue gouerned in euery estate. With the begin[n]ing of all militarie and religious orders. Translated out of French by Edw: Grimstone, sargeant at armes.; Estats, empires, et principautez du monde. English	Avity, Pierre d', sieur de Montmartin, 1573-1635.; Elstracke, Renold, fl. 1590-1630, engraver.; Grimeston, Edward.	1615 (1615)	STC 988; ESTC S106836	952,036	1,263

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 Iustice● 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 modu● 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 De●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 de●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

temporal Judge within this Realm will proceed in Causes belonging to your Jurisdiction you shall direct Precepts for Inhibiting them from all further proceeding thereuntil 15. Ye shall give forth Inhibition upon Teinds great and small as you are desired upon sight of the Parties Title allanerly 16. If Summons of Reduction be Libelled against any of your Decreets before the Commissars of Edinburgh ye may cause notwithstanding put your Sentence to execution And if the same be not pursued within year and day the Party being of perfect age and within this Realm your Decreet stands unreduced 17. You and your Clerk shall reside in the place of your Commissariots under the pain of deprivation except by the Arch-bishop or Bishops Consent and License upon grave occasion you obtain liberty to do otherwayes 18. You shall make two Registers of the Testaments to be confirmed by you The one to be keeped by you and the other to be delivered to to the Arch-bishop or Bishop yearly 19. Your Clerk the time of making the Accompts two times in the year viz. the first day of May and first of November shall make Faith to the respective Arch-bishops Bishops or any having their Order That there is no more Testaments Confirmed then these which are Booked in the Books then to be produced 20. You shal give forth no Precepts in matters above fourty pounds untill the Decreet be first extracted 21. In case any of you shall happen to fall sick and not be able to wait upon your Office or give attendance or if it shall happen any such Declinator or exception being of Verity to be proponed against you as might set or decline Sheriffs or any other Judge In that case you shall shew the Arch-bishop or Bishop the samine who then shall deput another who shall be most fit and apt to sit cognosce and decide in the Causes aforesaid 22. Ye shall find Caution to compear before the Arch-bishop and Bishop twice every year viz. The first day of May and November and give just count of your intromission with the Quote where the Arch-bishop or Bishop has not a Quot-master appointed by themselves And also for payment of your Contribution Silver to the Commissars of Edinburgh and that under the pain of five hundred pounds toties quoties 23. If any of you or your Clerks Confirm any Testaments and make no accompt thereof to your Arch-bishop or Bishop the saids dayes the samine being sufficiently verified your Office shall thereby ipso facto Vaick 24. It shall not be leisome for you to admit any procurator without License of your Arch-bishop or Bishop respective But you may create Commissar-officers that be honest and faithful as ye will be answerable And your Procurators shall wear Gowns in the Court as ye are appointed and injoyned by these principal injunctions to do the samine your selves And that you put the samine to execution betwixt and the day of next to come 25. The profite of all Summons Sentences Transumpts Registrations and Confirmations of Testaments and Registrations of all Tacks Contracts Obligations and other Writs whatsomever and Extracts of the samine As likewise the profite of the Seal and Signet to be divided in manner following That is to say the two part thereof to the Commissars and the third part to the Clerk he always finding Paper Ink Wax and Writing-Chamber ORDERS To be observed in Confirmations of all Testaments YOU shall have a care that all Edicts be served generally at the Paroch Churches twice or at least every year And if any Party shall desire particular Edicts as occasion offers you shall cause give them forth and the general Edict to be given gratis to the Procurator-fiscal The Edict being Served and the Person or Persons having best right being decerned Executors to the Defunct the Inventary shall be given up by the Executor who shall make Faith upon the truth of the samine If the Wife be Deceast and the Husband give up Inventary both of the Goods Geir and Debts owing by hi● and to him such Debts as he gives up and by his Oath Swears to be true Debts should be deduced off the free Geir alwayes if the Executor suspect any Fraud that the Debts given up exhaust the free Geir and think fit to omit the samine he may lawfully do And thir Debts are in Testaments Dative only to be received as owing by the Defunct Servants Fe●s for a year preceeding the Defuncts decea●e Duties of Lands or T●inds for a year Apothecaries Drogs immediatly imployed before the Defuncts decease House-meals for half a year at most Pensions and Ministers Stipends Steelbow-goods and Corns to the Master If the man or the Person whose Testament is to be confirmed give up the Inventary of Debts with his own mouth in a Testament Testamentar such Debts as they give up must be allowed But if there be no Testament Testamentar made by the Defunct or that in the samine he has ordained his Executor to give up the Inventary of his Goods Geir and Debts in that case no Debts are to be deduced except the Debts mentioned and contained in the immediat preceeding Article Which Deductions being made by the Person deceast he leaving behind him Wife and Bairns if any of the Bairns be unfori●familiat the Testament is divided in three parts and the third part of the ●●ee Geir pays only Quot If all the Bairns be forisfamiliat the Testament then divides in two and the half of the free Geir pays Quot If there be no Bairns the Testament likewise is divided in two and the half of the free Geir pays Quot If the Person deceast be single and has no Bairns unforisf●miliat in that case the whole free Geir pays Quot without any division If it fall out that any challenge the Geir of the Defunct by virtue of an Assignation from the Defunct before his decease he ought not the less to Confirm the Testament notwithstanding of the Assignation Quia quoad confirmationem Testament it is estimat to be simulat But he may as Assignay make Protestation That the Confirmation shall not prejudge his Assignation pro ut de jure Ye are to advert that the prices of the Goods given up in Testament be estimat conform to the common course as they are sold in the Countrey neither too high nor to low in prejudice of the Quot and Bairns of the Defunct Let no Testament be Confirmed without the Oath of the Executor and the Relicts Oath Man or Wife who survives other and if any thing shall be found to be omitted any benefite which would have belonged to the persons omitting of the which they had no probable ignorance The samine shall pertain to the Arch-bishop or Bishop or to any to whom they shall dispone it You shall give no License to pursue except to poor bodies and that for small sums and where Debts are desperate If there be no nomination or Testament made by the Defunct or if the Testament

Trade in the River of Clyde without any such Burden whereof no mention is made in the foresaid Contract and being charged for in Anno 1611. there was not so much as an alleadgence of any Possession of Dumbartons of these Dues at that time and the Entry decerned to be free at either Town and therefore they alleadged that their Priviledge of Trading as a free Burgh ought to be declared and they assoilzied It was answered for the Town of Dumbarton that they had good Right to these Duties by His Majesties several Infeftments granted to them for the King having power to impose petty Customs not only in Ports built and preserved by Industry but in Stations and Rivers Creiks and Bays as is the Custom of all Kings and Princes such are the Customes upon the Rivers of Rhyne Garonnie Thaimes and others to all Ships that anchor there or pass that way and whereof there are severals in Scotland as the Tunnage due to Edinburgh of all the Ships breaking bulk at Leith and the petty Customs of Alloway Cockenie and other places 2ly Albeit the Kings grant were not sufficient alone yet being cled with immemorial or 40. years Possession instructed by Witnesses and the Books of Entry it is more then sufficient It was answered for Glasgow to the first That petty Duties imposed for Ports having a mutual Cause may be appointed at any time by Kings and Princes it being free to these who are burdened therewith to come in to that Port or not they also appoint petty Customs to be payed to any City for Goods Imported and sold there in consideration of the upholding of their Harbours and Mercats as the Tunage of the Harbour of Leith or anchorage at any Shore where anchorage is casten upon the Land or any Goods laid out upon the Land or where Imposition for anchorage or other Dues in a River or Station hath been approven by long Custom and acquiescence but where Burghs Royal have not only by their priviledge of Trading but by immemorial Possession prescribed a liberty of making use of Stations without burding no Right granted or Impetrat by any Party in prejudice thereof if it be quarrelled before Prescription can take away the liberty of Trading Nor is the Kings Gift any way to be understood but periculo petentis and Dumbartons second Charter did expresly bear that these petty Customs were due and accustomed before so that the Kings express meaning is not to Gift them de nova or to impose a servitude in their favours upon a far more eminent City then themselves And as to the Point of Possession nothing is proven thereanent till the year 1616. and then it is neither universal seing more Entered at Glasgow then at Dumbarton nor is it peaceable nor voluntar nor is it continual but interrupted and albeit it were uninterrupted yet it is but by single Persons which cannot infer a Servitude upon the Burgh and if the Kings Gift be periculo petentis and be surrepticiously impetrat upon a false Narrative no Possession can validat it as no Possession of it self without a Title could infer such a Servitude The Lords having considered the Depositions of the Witnesses Books of Entry and the hail Writs produced they found that the alleadgence against Dumbartons Declarator as founded upon their Charters without Relation to Possession was not Relevant and that the first Charter could not extend to these particulars not being exprest unless it had appeared that they had been in immemorial Possession before the second Charter and the interruption by the Suspension raised by Glasgow and the Lords Interlocutor thereupon● in Anno 1611. for albeit Immemorial or 40. years Possession immediatly preceeding might have presumed Possession continually before since the first Charter yet they found that Interruption or Suspending that particular in question and no alleadging of Possession by Dumbarton then but on the contrair an Interlocutor as to the liberty of Entry at Glasgow takes off that Prescription And likewise they found that there was nothing proven as to 40. years Possession save only 13. sh. 4. d. for the Anchorage of each Ship and 8. d. for the use of Dumbartons Measures of Salt for each Boll and seing that Possession was also proven to be Interrupted in that several Ships of Glasgow Resisted and came away free and that they had several Salt Measures of their own there Therefore they found the Charter not validat by 40. years Possession uninterrupted and Assoilzie from Dumbartons Declarator and Declared upon Glasgows Declarator of Liberty Earl of Panmuire contra Parochiners Feb. 7. 1666. THe Earl of Panmuire having Right to the Abbacy of Aberbrothick pursues for a part of the Teinds thereof It was alleadged absolvitor because they had possest their Land 40. years free of Teind to any body and by the general Act of Prescription all Right prescribes not pursued within 40. years and so doth the Right of this Teind It is answered that the Right of Teind is founded on Law and not upon any particular or privat Right and therefore albeit in the case of Competition of private Parties pretending Right to Teinds One Right may be excluded by another yet the Teinds themselves must always be due except where the Lands are decimis inclusis and did belong to priviledged Church-men of old such as the Cistertian Order or Templars Manse or Gleibs The Lords Repelled the Defense in respect of the Answer for they thought albeit the bygones of the Teind preceeding the 40. years might prescribe yet the Right of Teind could not more then Customs could prescribe if they were neglected to be Exacted for fourty years or a Feu-duty Ker contra Hunter and Tennents of Cambo Feb. 8. 1666. THe Tennents of Cambo raise a Double-poinding against Ker and Hunter both being Infeft in Annualrents base where the last base Infeftment within a month of the former being cled with Possession by a Decreet of poynding the Ground a year after both and no Diligence on the first The Lords preferred the last Infeftment as first cled with Possession It was further alleadged that this Annualrenter had accepted a part of the Land in satisfaction of his Annualrent It was answered that there was Write there required viz. a Renunciation of the rest and till that was done est locus penitentiae The Lords considering the Case found that if the Promise were only to restrict the Annualrent to a part of the Land burdened therewith it was pactum liberatorium and there was not locus penitentiae but if it was a Promise to accept other Lands or the Property of a part of the Lands burdened there was locus penitentiae till the mutual Rights were subscribed whereby the one Party disponed the Property and the other the Annualrent The Heretors of Johns Miln contra The Feuars Feb. 9. 1666. THere being an old Thirlage of a Paroch which was a part of the Barony of Dumfermling to Iohns Miln the Feu of the Miln being

was no Fraud or Deceit qualified they repelled the Reasons and Decerned Fairie contra Inglis Iune 24. 1669. AT the Reporting of the former Interlocutor yesterday Fairie against Inglis It was further alleadged for Inglis that he offered him to prove by Fairies Oath that he was Circumveened in granting of the Ratification because Fairie upon that same Design drank him drunk Which Alleadgance the Lords Repelled in respect of the Bond and first Ticket wherein he Declared upon his Soul and Conscience never to come in the contrary Steuart of Gairntilly contra Sir William Steuart Eodem die SIr William Steuart having granted a Bond upon thir Terms that whereas he had obtained Disposition of the Lands of Innernytie partly by his Fathers Means and partly by his own and partly for granting the Bond underwritten and therefore he obliges himself to Infeft Iean Steuart his Sister and the Heirs of her Body which failzying ocertain Persons Substitute his Brethren and Nephews and a part of it t● return to himself and obliges himself to pay the Annualrent yearly to the said Iean and the Heirs of her Body and other Heirs of Tailzie foresaid during the not Redemption of the said Annualrent then there is insert a Reversion of the Annualrent from the said Jean and her foresaids by the said Sir William upon the payment of 20000. Merks and then a Clause of Requisition that if Jean after her Marriage desire the Money she or her foresaids might require the same to be paid after her Fathers Death and then a Clause that the said sum of 20000. should not be payable till five years after her Fathers Death and after her own Marriage The said Jean Assigns this Bond to her Brother Sir Thomas and he Charges Sir William who and some of the other Substitutes Suspends on these Reasons First That by the Conception of the Bond it was clear the principal Sum was not payable till Jeans Marriage and she being Dead unmarried is not now payable at all whereupon the Charger insisted for the bygone Annualrents and for granting an Infeftment of annualrent to him as Assigney conform to the Bond The Suspenders Reasons against the annualrent were first That this being an annualrent accessory to a principal Sum ablato principali tollitur accessorium so that the principal Sum being now not due to any by Ieans Death Dying unmarried the annualrent also must cease from her Death 2dly The annualrent is conceived payable to Iean and her Heirs but no mention of Assigneys 3dly Albeit ordinarly in such Obligations or Infeftments following thereon the first Person is Feear and the Substitutes are but Heirs who cannot come against the Feears Deed by Assignation or otherwayes yet where the Obligation is gratuitous and proceeds not upon sums of Mony belonging to the Creditor but upon the free Gift of a Parent bestowing the Sum there the Substitution implys a Substitution and Obligation upon the first Person and the Heirs of their Body to do no voluntar Deed to evacuat the Substitution so that albeit a Creditor or Successor for a Cause onerous might exclude the Substitutes yet another Heir appointed by the first person or a Donator or gratuitous Assigney cannot evacuat the Tailzie and exclude the Substitutes because in such Contracts uberrima fidei the mind of the Party who Gifted and freely granted the sum is chiefly to be considered so that it cannot be thought to be old Gairntillies mind that his Daughter might Change the Substitution and elude the Conditions of the Bond for the Suspending of the Requisition of the principal Sum till Iean were married must import that his meaning was to give her the Annualrent only till that time and the principal Sum to be a Tocher if she married which was to no purpose if the Annualrent remained perpetual for then the Heretor would certainly Redeem to purge his Land as he had done and the Sums Consigned would belong to the Assigney and the Clause Suspending the payment thereof if Iean married not signified nothing sed verba sumenda sunt cum effectu and the meaning of the Parties and conception of the Condition Suspensive must be preserved The Charger answered that he opponed the Bond wherein without all question Jean was Feear and the Substitutes being the Heirs of Tailzie cannot quarrel her Deed but are bound as Representing her to fulfil the same and albeit Ieans Assigneys be not exprest yet they are ever included where they are not expresly excluded neither is this Annualrent stated as a meer accessory because the Requisition of the principal Sum may be Discharged or may become by the Suspensive Clause ineffectual as now it does and yet the Obligement or Infeftment of Annualrent remains a perpetual Right though Redeemable at the Debitors option neither is there by Law or Custom any difference or exception whether the Annualrent be gratuitous or for a Cause onerous and for the meaning of the Father procurer of the Bond it must be understood as it is exprest only to exclude the lifting of the principal Sum by Iean upon the Clause of Requisition if she were not married and if his mind had been otherways it had been easie to have adjected a restrictive Clause or in stead of the Substitution to have set down a Provision that if Iean died unmarried the annualrent should belong to her Brothers and Sisters nominat but this being an ordinar single Substitution hath neither expresly nor implicitely any Condition or Obligation upon the Feear not to Dispone The Lords Repelled the Reasons of Suspension and found Iean to be Feear of the Annualrent and that she might assign the same and that the Substitutes could not quarrel the same Kennedy and Muir contra Iaffray Eodem die MR. Iohn Iaffray being presented to the Parsonage and Viccarage Teinds of Maybol and having obtained Decreet conform there is a double Poinding raised by the Heretors and Possessors of Fishartoun Mr. Iohn Iaffray craves preference as Parson and so having Right to the whole Benefice the other party called is Grange Kennedy and Muire of Mank-wood who craved preference on this Ground that the Teinds of Maybol was of old a part of the Patrimony of the Nunry of North-Berwick and the Prioress for the time with the consent of one Nune who was then only alive set a Tack thereof to Thomas Kennedy of Bargany and Gilbert Kennedy his Son and to Gilberts first Heir and after all their Deaths for three nineteen years The Prioress having thereafter at the Kings Desire Resigned the Teinds of Maybol to be a Parsonage did in her Resignation except the Tack set to Barganie which was alwayes cled with Possession and was assigned to David Kennedy of Ballimore and Transferred to Mr. Iohn Hutcheson and by him to Kennedy and Muir as to the Teinds of Fishartoun whereupon they crave preference It was answered for Iaffray that by their Right produced there is related another Tack granted by Mr. James Bonar Parson of

whom he had entrusted them had carried them away but there being produced in the Process attested doubles of the former Dispositions under the hands of Nottars The Pursuer craved that seing the Witnesses alleadged insert might die and the Captain of purpose keeped up the Principals that the Witnesses might be Examined upon what they know of the Truth or Forgery of the saids Dispositions Which the Lords granted the Fame and suspition of the Forgery being so great though ordinarly they do not Examine Witnesses upon the Forgery of a Writ till the principal be produced that the Witnesses may see their Subscriptions whereupon Steel one of the Witnesses compeared and Deponed acknowledging the Forgery and the way of contrivance of it in which the Captain made use of him whereupon the Lords proceeded to Examine the Tutor who stifly stood to the verity of the Dispositions as being truly Subscribed by him but differed in the Date and in the persons who were Witnesses to the Subscription The Captains Son in law being also Examined whether or not the Captain had employed him to corrupt the Witnesses and if he had written any Letter to him to that purpose produced a Letter mentioning some things by word which he should diligently go about and being asked who the Bearer was Deponed that he was Robert Ogilvy the Tutors Servant who being in the House and presently called to the Bar upon Oath being interrogat whether he had brought North any Letter from the Captain to his Good-son Deponed that he had brought no Letter from him to his Good-son or any other and thereafter the Letter being showen him and confronted with the Captains Good-son he Deponed that he did bring that Paper and delivered it to the Captains Wife but he thought it was an order not being Sealed and being interrogat whether he had any Message in word from the Captain to his Good-son Deponed he had none and upon reading of the Letter bearing the contrair and confronting with the Captains Good-son he acknowledged that he had order to cause his Good-son bring over the Witnesses to Edinburgh and the Captains Good-son further acknowledged that Ogilvy had desired him to deall with the Witnesses to stand to the Truth of the Writs he stifly denyed that point The Lords having considered his grosse Prevarication and contradictory Oath ordained him to be put in the Irons and the next day to stand in the Pillary betwixt ten and twelve and a Paper on his Brow to declare the Cause and did declare him infamous and appointed him to continue in Prison till further Order Mr. William Kintor contra the Heirs and Successors of Logan of Coat-field Iuly 9. 1669. LOgan of Coat-field having become Cautioner for the Tutor of Burncastle an Inhibition used upon the act of Caution Mr. William Kintor having Right by Progress from Burncastle obtained Decreet against the Representatives of the Tutor and of Coat-field the Cautioner for payment of the Annualrent of 10000 pounds due to the Pupil by the Marquess of Hamiltoun and the like Sum due by the Earl of Bucclengh in respect that the Tutor was obliged to have uplifted these Annualrents and to have employed them for Annualrent and thereupon pursues a Reduction of the Rights granted by the Tutors Cautioner as being granted after the Cautioner was Inhibited these Acquirers raise a Reduction of Mr. Williams Decreet and repeat the Reasons by way of Defense alleadging that the Tutor nor his Cautioner were not obliged for the Annualrents due by the Marquess of Hamiltoun and Earl of Buccleugh because they were in responsal Hands and the Pupil had no Damnage for it was free for the Tutor to uplift the Annualrents of Pupils Money when secure at any time during the Pupillarity but here they offer to prove the Tutor Died durante tutela and so was not lyable when he Died to uplift these secure Annualrents or to have employed them The Pursuer answered that the Lords had already found at the same Pursuers Instance against Iohn Boyd that the Tutor was lyable for Annualrent not only pro intromissis but pro omissis and for the Annualrent of the Pupils Annuals a finita tutela which is finished either by ending the Pupillarity or the Death or Removal of the Tutor It was answered that the Lords Interlocutor was only in the case that the Tutory had been finished in the ordinar way by the Age of the Pupil for that way of ending thereof could only been foreknowen by the Tutor that within the same he might lift the Pupils Annuals and give them out on Annualrent but he could not foresee his own Death but might justly think he had time before the expiring of his Tutory to lift and employ and so the Tutor not having failed in his Duty his Cautioner is free It was answered First That by the Lords dayly Practique Tutors are lyable for the Annualrents of Rents of and within a year after the Rents are due and there being so much parity of Reason in Annualrents it cannot be thought just that the Tutor was not obliged to lift them till the end of his Tutory for albeit he might have keeped them in his Hands unemployed and only to leave them employed at the ish of his Tutory yet he was obliged to uplift them and if by any accident as being preveened by Death he did not employ them that accident should be on his peril not the innocent Pupils 2dly If need beis the Pursuer offers to prove the Annualrents were uplifted by the Tutor and so these that Represent him and his Cautioners are lyable for Annualrent therefore at least from the Death of the Tutor The Lords found that the Tutor was neither obliged to lift nor give out on Annual the Annualrents of his Pupil if the Debitors were Responsal but only once betwixt and the end of the Pupillarity and if he Died betwixt and the end of the Tutory he was free both of the Annual and Annualrents thereof but if he did actually uplift the Annalrents they found that it was sufficient to employ them any time before the Tutory ended and found that his Heir was lyable for Annualrent not from the Tutors Death but from the end of the Pupillarity and that he could be no further lyable then the Tutor if he had lived in respect that subsequent Tutors were obliged to lift these Annualrents from the former Tutors Heirs and employ them This was stoped to be further heard Garner contra Colvin Iuly 10. 1669. JAmes Colvin having Apprized the Lands of Lady-kirk and some Tenements in Air and being Infeft therein Garners Wife and Bairns raise a Reduction and alleadge that the Apprizers Right is null as to the Tenements in Air because Iohn Garner had never Right thereto but the Right was Originally granted to young Iohn Garner the Pursuer by his Mother Brother The Defender answered that the said Right must be affected with his Apprizing as if it had been in the Fathers Person because