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
for Debt due to him by Cheisly and he being nowayes particeps fraudis Cheislies Fraud or Circumvention cannot prejudge him for albeit Extortion vi majori be vitium reale that follows the Right to all singular Successors yet fraud is not and reaches none but participes fraudis both by the Act of Parliament 1621. and by the civil Law L. It was answered for Scot that albeit it be true that an Assigney for an Oâ—erous Cause cannot be prejudged by the Oath of his Cedent and consequently by no Circumvention probable by his Oath yet in Personal Rights an Assigney is in no better case then the Cedent nisi quoad modum probandi but what is relevant against the Cedent and competent to be proven either by Writ or Witnesses is competent against the Assigney so that the Circumvention against Cheisly being inferred by pregnant Evidences and Witnesses and not by his Oath it must be effectual against Thomson whose Name being filled up by Cheisly is in effect Cheislies Assigney for so all blank Bonds are commonly found by the Lords to have the same effect with an Assignation 2dly Assignies without an Onerous Cause even as to the Oath of the Cedent or any other consideration are in no better case nor the Cedent but here there is no Onerous Cause appears for which Cheisly transmits this Right to Thomson for the Bond â—ears not that for Sums of Money due by Cheisly to Thomson or any other Cause Onerous on Thomsons part that Scot should be obliged at Cheislies desire to pay Thomson but only that because Cheisly had Assigned a Process to Scot therefore Scot becomes obliged to pay to Thomson 3dly As there is no Cause Onerous instructed on Thomsons part so his own Oath de calumnia being taken renders the matter most suspitious by which he acknowledges he got the Bond from Cheisly and that Cheisly was not then his Debitor for so great a Sum as in the Bond but that by payments made to him and for him thereafter he became his Debitor in an equivalent Sum but Depones that he hath nothing to instruct the Debt nor no Note thereof in his Compt Book though he be an exact Merchant and Factor so that there is no Evidence or Adminicle of an Onerous Cause instructed And lastly Albeit Parties getting blank Bonds bearing borrowed Money from the blank Person whosoevers Name is filled up the Bond then bears the Sums borrowed from him whose Name is filled up and cannot be taken away but by his Writ or his Oath but this Bond bears only a Process Assigned by Cheisly and no borrowed Money or other Cause by Thomson and Thomson living in the same Town with Scot whom he knew and is commonly known to be a simple Person and Cheisly a subdolous he ought before accepting of the Bond to have acquainted Scot of the filling up of his Name and if he had any thing to say and cannot now pretend that he acted bona fide but either must be in dolo or in lata culpa quae dolo aequiparatur The Lords found that having considered the Tenor of the Bond and Thomsons Oath Thomson was in the same condition as to the relevancy and probation of the Reasons of Circumvention against Cheisly and therefore found the Libel Relevant against them both to annul the Bond the Apprizings and Infeftment and all that had followed thereupon Naper contra Gordon of Grange Feb. 12. 1670. IOhn Naper as Representing his Father did Pursue William Gordon of Grange as Representing Hugh his Father for payment of 2000. Merks due by the said Umquhile Hugh his Bond and upon the said Williams Renuncing to be Heir obtaind Adjudication of the Lands of Grange and others in so far as might belong to the said Umquhile Hugh his Debitor his Heirs and thereupon did Pursue the Tennents for Mails and Duties In which Action it was alleadged for William Gordon now of Grange that he stands Infeft by Disposition from the said Umquhile Hugh Gordon of Grange his Father for Onerous Causes and Sums of Money undertaken and payed for his Father which was found Relevant and to evite the same the said Iohn Naper raised Reduction of Grange's Right granted by his Father ex capite Inhibitionis raised against his Father upon the said Bond before the Disposition made to this Grange which Inhibition being produced this day fourtnight it was alleadged for Grange that the samine was null because the Executions buir not a Copy to have been lest at the Mercat Cross at the publication of the Inhibition which the Lords found Relevant and now the Pursuer insisted on this Reason that the Disposition though it buir Onerous Causes yet being after the Contracting of his Debt by a Father to a Son the Narrative bearing the Cause thereof is not Probative against a third Party but the same must yet be instructed Which the Lords Sustained and ordained Grange to produce the Instructions thereof William Lowry contra Sir Iohn Drummond Feb. 18. 1670. UMquhile Sir Robert Drummond of Meidup having Disponed the Lands of Scotstoun to Sir Iohn Drummond of Burnbank Mr. Iohn Drummond Writer in Edinburgh his Grand Nevoy intending to Reduce that Disposition as on Death-bed grants a Bond to William Lowry of 12000. Merks who thereupon having Charged the said Mr. Iohn to enter Heir in special to the Lands of Scotstoun to the said Sir Robert his Grand Uncle Apprizes from him all the Right of the Lands that might be competent to him if he were entered Heir and thereupon raises Reduction of Sir Iohn his Right as being granted by Sir Robert on Death-bed in prejudice of his nearest Heirs in whose place the Pursuer now is by the Apprizing It was alleadged for the Defender no Process upon any Charge to enter Heir against Mr. Iohn Drummond because he is not the nearest appearand Heir but has an elder Brother living The Pursuer answered that the said elder Brother had gone out of the Countrey 18. years agoe and was commonly holden and repute Dead likeas he produced a Missive of one Creiâ—htoun his Commerad in the War abroad bearing the Circumstances of his Sickness Death and Burial Dated Iuly 6. 1667. It was answered that semel vivus semper presumitur vivus nisâ— contrarium probetur and what was alleadged could be no probation but some probabilities of Death The Pursuer answered that the brokard is but presumptio juris and not presumptio juris de jure and therefore only transâ—ert onus probandi which Probation may be valid without Witnesses by such adminicles as the Lords shall find sufficient which are here sufficiently alleadged viz. long Absence common Fame and a Missive Letter The Lords found that eighteen years Absence and being holden and repute Dead was sufficient Probation to take off the presumption of Life unless a stronger Probation for the Parties being on Life were showen then the naked presumption thereof Lauchlen Lesly contra Guthry Feb. 19. 1670. LAuchlen
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
the said â—ine of three pounds Scots from any Person whom they shall find within the said Barr. And in case the Party refuse to pay the same that they carry them to Prison untill they make payment thereof Certifying the saids Macers that if upon delation of them by any of the Clerks they shall be found negligent in performing of what is hereby enjoyned to them they shall be fined in the said sum of three pounds Scots and imprisoned during the pleasure of the Lords And this Sentence to be inflicted upon the Macers or other transgressors of this Act as oft as they shall be found to contraveen the same ACT concerning Priviledged Summons Iuly 21. 1672. THE Lords considering that divers Summons as declarators and others which by the constant from and practice of this Kingdom did always abide 21. days warning have of laâ—e been execute sometimes upon six days as being priviledged by deliverance of the Lords upon Bills given in for that effect and seeing these Bills being dâ—awn and given in by Writers to the Signet do passe of Course without perusal or consideration thereof by the ordinary which hath given occasion to the foresaid abuse And finding it expedient that it be determined for the future what Summons shall be Priviledged Therefore the saids Lords do ordain That in time coming all Summons shal come in upon 21 days warning And that none be priviledged by the Lords deliverance or otherways except these following viz. Removings Recent-spulzie and Recent Ejections where the Summons is Execute within 15 days after the comitting of the deed intrusions and coming in the Vice Causes alimentary Exhibitions Summons for making arrested Goods forthcoming Transferrings Poyndings of the Ground Waknings Special Declarators Suspensions Preventoâ—s and Transumpts And that Recent-spulzies Ejections Intrusions and Succeeding in the Vice be execute upon 15 days and that all the rest of the foresaids Summons be Execute upon six days and that the second Citation be likewise upon six days And it is further declared That all the Summons above-mentioned shall be priviledged as a foresaid whither the Summons bear a priviledge or not And the Lords do hereby prohibit and discharge the Writers to the Signet to Write Form or Present to the Clerks to be put in any Bills for priviledging any Summons but these above-exprâ—st Certifying such as shall coutravâ—en that for the first fault they shall be fyned in one hundred merks Scots to be applyed for the use of the poor and for the second fault they shall be deprived of their Office It is always hereby declared that this Act is not to be extended to Summons execute against Persons Inhabitants of the Burgh of Edinburgh or the contiguous Suburbs thereof who may be Summoned by the second Citation upon 24 hours conform to the custom formerly observed ACT anent payment of dues for Summons containing two dyets Iuly 11. 1672. FOrasmuch as the Lords after mature dâ—liberation did think fit That the former custom of continuing Summons and taking out of Act and Letters thereupon in all such Causes and Processes as formerly did require and abide continuation should be laid aside in time coming And that in Place and Lieu thereof the Summons in all Process of the nature foresaid should contain two distinct warrands for citing the Defenders at two several times and to two several dyets and dayes of Compearance with the same Certification as before was usual and contained in the first and second Summons respective And that Procâ—ssâ—s should be granted in the Causes foresaids upon Summons containing the warrands above-mentioned and Execute conform to the same as formerly was granted upon Summons Act and Letters And upon an overture given in and approven by the Lords of Articles An Act of Parliament hath followed and is made to that purpose As the Act of Parliament intituled Act discharging second Summons at length proports And seing the Lords of Session when they had the said alteration of the former Custom under their consideration thought it no ways reasonable that thereby either His Majesties Secretary or the Clerk of Register or the ordinary Clerks of Session his Deputes should be prejudged of their dues and profits formerly belonging to them respective And in regard the Summonds which are to contain the said distinct warrands for Citation are in effect and upon the matter two several Summons and are equivalent to Summons Acts and Letter and have the same effect to all intents and the profits formerly arising from all Acts of Continuation and Letters thereupon are a considerable part of the Dues belonging to the Lord Secretare Lord Register and his Deputs for their Incouragement and Service in their respective Officesâ— and upon the considerations foresaid it was resolved That notwithstand ing the said alteration the same should be continued and secured to them in manner after mentioned Therefore and in order to their satisfaction The Lords of Session does Statute and Ordain That for the Signing of all Summons which formerly did abide continuation and in lieu thereof shall now and hereafter continue the said warrands for two several Citations the keepers of the Signet shall have and may take as much as formerly he might have taken both for Summons and Letters while the same were signeted a part As also it is hereby appointed That all the saids new Summons containing two distinct warrands for citing to the Defenders two dyets be subscribed by the Clerk of Register or in his absence by one of his Dâ—puts or the ordinary Clerks of Session who at the subscribing thereof are to receive for the same the dues formerly payed for Act and Letters And the Lords do hereby discharge the keeper of the Signet to affix the Signet to any of these new Summons for two or more Citations but such as shall be subscribed by the Clerk of Register or his Deputes as said is and that no Process be granted upon auy such Summons unlesse they be subscribed by them in manner foresaid ACT concerning Bankrupts Ianuary 23. 1673. FOrasmuch as by an Act of Sederunt of the 26 February 1669. It is Satute an Ordained that all Decreets of Bonorum in time coming should contain a Clause ordaining the Persons in whose favour the Bonorum should be granted To take on and weare the habit of Bankrupts Which is a Coat or upper Garment which is to cover the Parties Cloaths Body and Armes whereof the one half is to be of a Yellow and the other half of a Broun Colour and a Cape or Hood which they are to wear on their Heads Partie-coloured as said is which habit they are to take on before they come out of Prison and come out with it upon them And that it shall be lawful to the Creditors to seiz upon and imprison any of them who shall be found wanting the foresaid habit And the Lords considering that this Course for preventing and punishing of Bankrupts hath through the in-observance of the same proven
Registration of Seasines there is neither Law nor Favour since for posterior acquirers who might have known the prior Infeftments And therefore in Infeftments of Warrandice Lands the Possession of the principal Lands is accompted Possession of the Warrandice Lands neither is there any ground to oblidge a Person who takes a Feu of Lands to demand a more publick infeftment of the Warrandice Lands then of the principal It was answered that albeit the Narrative of the Statute mention Fraudful alienations yet the dispositive words are General that wherever an Infeftment hath been publick by Resignation or Confirmation and hath attained Possession year and day the same shall exclude any prior base Infeftment attaining no Possession and if the said Act were only to be measured by Fraud then if it could be alleadged and astructed that the first Infeftment though base was for a cause onerous and without Fraud it should be preferred which yet never hath been done And for the Practiques they meet not this Case nor the Act of Parliament because the posterior publick Infeftment had attained no Possession It was answered that now consuetude had both Interpret and Extended the foresaid Act for thereby posterior publick Infeftments though they be not for cause onerous or cled with Possession year and day are ordinarily preferred contrair to the tenor of the Statute and base Infeftments retenta possessione where the obtainer of the Infeftment is negligent are accounted Simulat presumptione juris de jure but where there is no delay nor ground of â—imulation the base Infeftment is preferred whether the posterior publick Infeftment attain Possession for year and day or not The Lords having heard this Case at length and debated the same accuratly amongst themselves in respect they found no preceeding Decision whether base Infeftments of Warrandice where there was possession of the Principal Lands were valid or not against posterior publick Infeftments They found this base Infeftment of Warrandice valid against the posterior publick Infeftment The Infeftment in Warrandice being Simul with the Principal and not ex intervallo and being after the Act of Parliament 1617. but did not decide the Case to be of generall rule for Warrandice ex intervallo before the said Act. Grissell Seatoun and Laird of Touch. contra Dundas Ianuary 11. 1666. GRissall Seatoun and the Laird of Touch younger her Assigney pursues Dundas as charged to enter Heir to Mr. Hendrie Mauld for payment of a Bond of 8000 merks granted to the said Grissall by the said Mr. Hendrie her Son It was alleadged that the Bond was null wanting Witnesses It was Replyed That the Pursuer offered him to prove it Holograph It was duplyed that albeit it were proven Holograph as to the body yet it could not instruct its own date to have been any day before the day that Mr. Hendrie died and so being granted in lecto aegritudinis cannot prejudge his Heir whereupon the Defender has a Reduction It is answered that the Reduction is not seen nor is there any Title in the Defender produced as Heir It was answered that the nullitie as wanting Witnesses was competent by exception and the the duply as being presumed to be in lecto was but incident and was not a Defense but a Duply The Lords Repelled the Defense upon the nullitie of the want of Witnesses in respect of the Reply and found the Duply not competent hoc ordine but only by Reduction and found there was no Title produced in the Reduction Executors of William Stevinson contra James Crawfoord Ianuary 12. 1666. THE Executors of William Stevinson having confirmed a Sum of 3000. and odd Pounds due by Bond by Iohn Ker to the said William and also by Iames Crawfoord who by his missive Letter became oblidged to pay what bargain of Victual should be made between the said Iohn Ker and Iohn Stevinson for himself and as Factor for William Stevinson And subsums that this Bond was granted for a Bargain of Victual It was answered that albeit this Bond had been in the name of William Stevinson yet it was to the behove of Iohn Stevinson his Brother who having pursued upon the same ground the Defender was Assoilzied and that it was to Iohns behove alleadged First That Iohn wrot a Letter to his Brother William to deliver up his Bond acknowledging that it was satisfied and that Iohn having pursued himself for the other Bond granted in place of this The said Umquhil William Stevinson compeared or a Procurator for him before the Commissars and did not pretend any Interest of his own neither did William during his Life which was ten yearsâ— thereafter ever move question of this Bond nor put he it in the Inventar of his Testament though that he put most considerable Sums therein It was answered 1. That the presumptions alleadged infer not that this Bond was to Iohn Stevinsons behove because by Iames Crawfoords Letter there is mention made of several Bargains of Victual both with Iohn and William so that the Bond and pursuite at Johns instance might be for one Bargain and at Williams for another especially seing the Sums differ 2dly Writ cannot be taken away by any such Presumptions It was answered That if the Defender James Crawfoord had subscribed this Bond it could more hardly have been taken away by Presumptions but he hath not subscribed the Bond but only his missive Letter which is dubious whether it be accessory to this Bond or if that Bond was for this Bargain and therefore such a writ may well be â—lided by such strong Presumptions The Lords found the Presumption Relevant and that they instructed the Bond was to Johns behove and therefore in respect of the ahsâ—lvitor at Crawfoords instance they Assoilzied William Dick contra Sir Andrew Dick. January 13. 1666. WIlliam Dick pursues Sir Andrew Dick his Father for a modification of his Aliment whereupon the question was whether Sir Andrew Dick himself being indigent and having a great Family of smal Children and the Pursuer having been Educat a Prentice whether the Pursuer should have a Modification The Lords considering the great Portion the Pursuers Mother brought and that he was a Person of no ability to Aliment himself by his industrie decerned Sir Andrew to receive him in his House and to entertain him in meat and Cloath as he did the rest or else two hundred merks at Sir Andrews option James Crawfoord contra Auchinleck January 17. 1666. THE Heirs of Lyne of Umquhile Sir George Auchinleck of Balmanno being provided to a Portion payable by the Heirs Male did thereupon charge the Appearand Heir Male and upon his Renounciation to be Heir obtained Decreet cognitionis causa after which that Appearand Heir dyed and the Decreet being Assigned to Iames Crawfoord Writer he now insists in in a Summons of Adjudication containing a Declarator that he having charged the next Appearand Heir to enter to the last Appearand Heir against whom the Decreet cognitionis causa was
him and all danger and that he would be loath to bid him do any thing would do him harm whereupon he did Subscribe as VVitness and saw not the Tutor Subscribe at all nor saw not his Name put to the VVrit at that time and that this was not at the Barns of Towy the time of the Lairds Death as the Date of the Paper bears but at Achready five weeks thereafter Ferguson Deponed that Captain Barclay having been his Tutor he induced him to VVrite over the Bond of 100000. Pounds whereof he had formerly gotten a Draught from Iames Midletoun Notar wherein Debitor Creditor Sums and Date were blank and that he filled up Umquhâ—â—â— Towy Debitor and the Captain Creditor and the Sum 100000. Pound and put in a Date as if it had been before the Lairds Sickness albeit it was truly after his Death and that the Captain shew him Towies Subscription in a Letter and caused him feinzâ—e it to the Bond as near as he could and likewise Depones that the Captains Brother was the other VVitness but that he saw not what the Deponent had done nor knew not thereof He also Deponed that he filled up the Date and insert the VVitnesses in the Disposition of the Estate of Towy at the Captains desire and made the Date to be at the Barns of Towy at the Lairds Death albeit it was done at Achready about a Month or twenty days thereafter and that there was no Subscription put thereto at that time but that the Captain told him that he would get the Tutor to put his Hand to it thereafter and that the Deponent refused to Subscribe VVitness because the Tutors Name was not thereat Upon these Testimonies both these VVitnesses and Steel who was formerly out upon Bail were put in Prison Henderson contra Anderson November 18. 1669. HEwat having made a general Disposition of his whole Goods and Geir to Anderson and thereafter having Disponed to Henderson his Creditor Henderson pursues Anderson for Reduction of his Disposition as being fraudulent in prejudice of Creditors without any equivalent Cause Onerous contrare to the Act of Parliament 1621. against fraudulent Dispositions The Defender aâ—leadged that the Reason was not Relevant upon the said Act because Hewat and Anderson were not conjunct persons and because his Disposition buir an Onerous Cause viz. for Sums due to himself and for 2000. Merks and other Sums for which he was Cautioner for Hewat and gave in a condescendence of the particular Sums and offered not only to Depone thereupon himself but to astruct the same by the Oath of Hewats Creditors to whom he payed The Pursuer answered that albeit ordinarly Dispositions amongst persons not conjunct bearing Causes Onerous were sufficient yet this Disposition being manifestly fraudulent in that it is omnium bonorum which the Receiver thereof could not but know to be in prejudice of the Disponers other Creditors to whom there was nothing left and so is particeps fraudis and likewise the Sum of 2000. Merks which is the only Cause specially exprest being instructed to be false by Discharges of the most part of that Sum by the Creditor to Hewat himself the remainder of the Cause being general ought to be instructed not by Andersons Oath but by sufficient Probation at least the verity of the Debt by Hewats Oath and the payment thereof by the Oaths of Hewats Creditors to whom it was payed and that it wa payed by Anderson before the Disposition at least that he was bound for payment thereof before the Disposition The Defender answered that Dispositions of Moveables are valide without any VVrit especially before any Diligegence done by the Pursuer and if these who acquire Moveables were obliged to instruct the Cause otherwise then by their own Oaths all Commerce would cease and the Defender having taken a Disposition in VVrit can be in no worse case then if he had none The Lords having considered the Defenders condescendence found that what waâ— due to the Defender himself by Hewat before the Disposition should be sufficiently instructed by Anderson's own Oath but as to what was due to him or payed by him for Hâ—wat after the Disposition and before any Right or Diligence of Hendersons that the same should also be allowed being instructed by Howats Oath and these who received the Sums and that accordingly Anderson should accompt for the whole Goods he meddled with and pay the superplus thereof to Henderson the Pursuer over and above the saids Articles The Creditors of Cowper and Balmerino contra My Lady Cowper November 25. 1669. THe Deceast Lord Cowper having made a Disposition of his whole Estate in Fee to his Lady and thereby having excluded the Lord Balmerino his appearand Heir therein Balmerino being unwillingly to Enter Heir to Cowper before he knew whether the Disposition would stand or not moves some of Cowpers Creditors and some of his own Creditors having Charged him to Enter Heir to Cowper to insist in the Reduction of the Disposition made to the Lady as being done by Cowper in lecto agritudinis It was alleadged for the Lady no Process at the Creditors of Cowpers Instance First Because they insist only upon Personal Bonds granted by the Lord Cowper and have no real Right to the Land and so cannot Reduce a real Right but upon a real Right So till they have Apprized the Lands they have no Interest 2dly Albeit Cowpers Creditors might Reduce the Disposition as betwixt conjunct Persons without an onerous Cause yet not upon the Reason ex lecto because that is a priviledge particularly competent to Heirs but not to Creditors as they are Creditors unless by real Diligences they state themselves in place of the Heir and so make use of his Right and Priviledge It was answered for the Pursuers that in that they were Creditors they had sufficient interest to crave it to be declared that the Estate of Cowper should be Affected with Apprizings upon Cowpers Debts due to them notwithstanding this Disposition which is all the Effect of this Reduction and as they may without any real Right Reduce or Declare as aforesaid upon the Act of Parliament 1621. against fraudulent Dispositions so they may declare that any Disposition done on Death-bed as it could not prejudge the Heir so it cannot prejudge the Creditors of the Defunct or his appearand Heir but that they may affect the said Estate with their Legal Diligences It was answered for the Defender that she repeats the former Defense And further alleadges that she is content to take off the interest of Cowpers own Creditors and to Declare that the Disposition shall be burdened with their Debts but adhered to her Defense against Balmerino's Creditors who though they produce an Apprizing yet it is posterior to the Summons and their Personal Debts can be no sufficient Title nor is there any produced It was answered for Cowpers Creditors that the Declarator in their favours was no way sufficient nor would not give
Disposition bears and under Reversion of a Rosenoble to Sir Robert in his own Life Mr. John Drummond Sir Roberts appearand Heir grants a Bond to Lowrie of Blackwood whereupon he Adjudges the Land from the appearand Heir and pursues a Reduction of the Disposition as done on Death-bed In which Pursuit Witnesses were appointed to be Examined hinc inde concerning Sir Roberts condition when he made the Disposition and thereafter till his Death the sum of the Probation was that before the Disposition Sir Robert had contracted an Apoplexie whereby he remained senseless for a time but by Cure there remained a Palsie in his Tongue and a Vertigo in his Head which continued till his Death and about a year after that the sickness affected his Brain so that he lost the remembrance of Names of things and most of the Witnesses Depones that he was not found thereafter in his Judgement but that he keeped on his Cloathes and was not affixed to his Bed and went frequently and walked in his Garden and to the Court-hill half a pair of Butts off and one of the Witnesses Deponed that he came to his House alone a quarter of a mile off but that he went never to the Kirk nor Mercat nor any publick place Whereupon it was alleadged for the Defender that the Defunct continued in health at and after the Disposition and that his going so frequently abroad was equivalent to his going to Kirk and Mercat which was sufficient to eleid the Reason of Death-bed and that the Palsie being but in his Tongue albeit he misnamed things it did not import his being on Death-bed especially seing he Disponed for payment of his Debt equivalent to the worth of the Land his Disposition being to a Friend of his Name who Relieved him of his Debt his Heir not being his Son nor Descendent and uncapable to Relieve him of his Debt It was answered that the contracting of his sickness being sufficiently proven to be before this Disposition and the continuance thereof to affect his Brain in that case nothing could purge the same but his going to Kirk and Mercat which were the acts required in Law and could not be supplied by his going privatly abroad and not to any popular publick meeting and as to his Debts they could not validat the Disposition by exception though the Defender might by way of action affect therewith the Estate or Burden the Heir on whose Bond it was adjudged especially seing the Disposition buir for Love and Favour and Redeemable for a Rose-noble The Lords found the Reason of Death-bed sufficiently proven and that his private going abroad though unsupported was not equivalent to going abroad to Kirk and Mercat or publick meeting where the Disease continued to affect the Brain But they found the paying of Debts equivalent to the worth of the Land Relevant by way of exception in regard the Disposition buir to be for payment of his Debt Mr. Iohn Wat contra Campbel of Kilpont Feb. 8. 1671. SIr Archibald Campbel being Debitor to Adam Wat in a Sum of Money he did thereafter Contract his Son Mr. Archibald in Marriage with Thomas Moodies Daughter and by the Contract Thomas Moodie acknowledges the Receipt of fourty thousand Pound from Sir Archibald and is obliged for twenty thousand Merks of Tocher all to be imployed for Mr. Archibald in Fee but Thomas Moodies Daughter Dying and leaving no Children behind her Thomas Moodie did restore the Sums and there is a Discharge granted by Sir Archibald and his Spouse and Mr. Archibald bearing them to have Received the Sums and to have Discharged the same Whereupon Mr. Iohn Wat as Heir to Adam pursues Mr. Archibald to pay him the Sum due to his Father upon this ground that he having Received fourty thousand Pounds of his Fathers Means after Contracting of the Debt ought to make so much of it forthcoming as will pay the Pursuer which Action was founded upon the Act of Parliament 1621. whereby all Deeds done by Debitors in prejudice of their Creditors without a Cause Onerous are declared null and all Parties that by vertue thereof Intromets are declared lyable to restore to the Creditors It was answered for the Defender First That the Libel was not Relevant there being no part of the Act of Parliament 1621. that Incapacitats Debitors to Gift or Dispone Sums of Money or Moveables especially if the Disponer at that time be not insolvent but have a sufficient Estate for satisfying his Debt and it is offered to be proven that Sir Archibald had at the time of this Contract a sufficient Estate for all his Debt in the hands of the Earl of Argile and Glenorchie and albeit by the superveening Forefaulture Argiles Debt be insufficient it was a good Debt the time of the Contract so that there can be no ground to make a Child lyable to Restore a Portion given by a Father who was solvent 2dly Albeit the Defender could be lyable if it were clear that he had the Sum foresaid by his Father yet remaining to the fore yet if it had been lost or spent before the Intenting of this Cause he or any subsequent Estate acquired aliunde is not lyable ita est anything he has is a Wodset of fourty thousand Merks on Kilpont and the two Tochers he had viz. twenty thousand Merks from Thomas Moodie and ten thousand Merks of Legacy and twelve thousand Merk of Tocher with Sir William Gray's Daughter was sufficient to acquire the Right of Kilpont without any thing from his Father 3dly The Discharge produced cannot instruct that Mr. Archibald Received the Money because it bears indefinitly that payment was made to Sir Archibald and his Spouse and to Mr. Archibald and all of them do Discharge The Pursuer answered that the Libel was very Relevant for whatsoever might be alleadged of Bairns Portions by a solvent Father yet this being so considerable a Fortune provided to the only Son and appearand Heir if it did not make him lyable to satisfie the Fathers Debt pro tanto it were a patent way to defraud all Creditors and elude the Act of Parliament for the Father might Sell his Estate and provide the Moneys in this manner and as to the Discharge albeit it be indefinite yet it must be presumed that Mr. Archibald Received the Sums because they belong to him in Fee by the Contract of Marriage The Lords found the Libel Relevant and that the Discharge produced did presume that Mr. Archibald the Feear did Receive the Money but seing the Probation was not expresse but presumptive they allowed Mr. Archibald to condescend upon what Evidences he could give that the Money or Surety thereof was Delivered to his Father Iohn Will contra The Town of Kirkaldy Feb. 11. 1671. JOhn Will pursues the Magistrats of Kirkaldy for paying the Debt of a Person Incarcerat in their Tolbooth who was letten escape by them It was alleadged for the Town that the Person Incarcerat had escaped vi
to the Lords concerning Prizes January 3. 1667. Warrand for general Letters for the Contribution due out of Benefices to the Lords November 17. 1668. Oaths to be taken for the price of Fowls January 15. 1669. Act anent Extracts of Registrate Writs bearing the Procurators names though not Subscribing December 9. 1670. Act anent Extracting Acts and Decreets Ianuary 20. 1671. Act against Magistrates of Burghs for letting Prisoners for debt go out of the Tolbooth Iune 14. 1671. His Majesties Order to the Commissioners of His Thesauray to free the Lords from the Cess July 19. 1671. Act for Keeping the Bars November 3. 1671. Act concerning priviledged Summons July 21. 1672. Act anent payment of Dues for Summons containing two Diets July 11. 1672. Act concerning Bankrupts January 23. 1673. Act Ordaining Advocations or Suspensions of Processes for Conventicles to be only past in presentia or by three Lords in vacant time June 24. 1673. Letter anent Pryzes July 8. 1673. Act for Ordering new hearings in the Outer House July 11. 1673. Letter from His Majestie against appeals June 17. 1674. Act concerning Acts before Answer July 23. 1674. Act for Tryal of those presented to be Ordinary Lords of Session July the last 1674. Act upon the Marquess of Huntly's disowning Appeals January 26. 1675. Act concerning Prisoners for debt February 5. 1675. Act anent Bills of Suspension February 9. 1675. Act Ordaining Processes after Avisandum to be carryed to the Ordinary that same day and Reported in his Week June 2. 1675. Heugh Riddel sent to the Plantations July 20. 1675. Act anent passing of Bills for liberty out of Prison July 21. 1675. Act concerning the granting of Protections February 1. 1676. His Majesties Letter concerning the Clerks June 20 1676. Act concerning the Registers Iuly 4. 1676. Act for Inventaring the Registers Books July 13. 1676. Act anent the manner of Booking Decreets of Registration November 21. 1676. Act anent the Registers of Seasines and Hornings in the several Shires January 4. 1677. Act concerning Arrestments February 1. 1677. Act concerning Advocates June 7. 1677. Act concerning the sisting of Execution upon Bills of Suspension July 3. 1677. Act concerning the Suspensions of Protestations July 10. 1677. Act against Solicitations November 6. 1677. Act concerning Bills relating to concluded Causes November 9. 1677. Suspensions of the Excize to be past only in presentia December 6. 1677. Warrand anent Precepts for giving Seasine upon Retoures February 15. 1678. Act in favours of the Lord Register February 22. 1678. Act Discharging Clerks to lend out Processes to any except Advocats and their Servants February 26. 1678. Act prohibiting the Clerks to give up Bills relating to Processes whereupon there is any Deliverance of the Lords July 23. 1678. Act discharging Advocates and Writers Servants to Write their Masters Subscription July last 1678. Act Ordaining Hornings and Inhibitions to be Booked which were not Booked the time of the Vsurpers January 3. 1679. Orders for payment of the Dues of the Signet where Suspensions are appointed to be discust upon the Bill January 24. 1679. Act in favours of Intrant Advocats February 7. 1679. Act anent Executors Creditors November 14. 1679. Act anent the Registration of Hornings November 19. 1679. Act against Solicitations December 24. 1679. Act anent the taking of Renunciations from Persons Inhibited February 19. 1680. Act against Petitions for alteration of Acts Extracted February 24. 1680. His Majesties Letter in favours of the Lord Register anent the nomination of the Clerks of Session June 8. 1680. Act concerning Nottars July 29. 1680. Act concerning Bills of Suspension November 9. 1680. Act anent the marking of Advocates compearance for Defenders November 25. 1680. Act in Favours of the Macers February 15. 1681. Act anent Seasines and Reversions of Lands within Burgh February 22. 1681. THE ACTS OF SEDERUNT OF THE LORDS of SESSION Beginning the 5th Iune 1661 and ending in February 1681. ACT for Vniformity of Habit by the ordinary Lords Iune 5th 1661. THE Lords did find that the whole fifteen ordinary Lords of Session of whatsoever Place Dignity or Title they be should carry and use the ordinary Habit and Robes of the ordinary Lords of Session in all time coming ACT for continuing Summonds and writing in Latine as formerly Iune 6. 1661. THE Lords taking to their serious consideration of how dangerous consequence the alteration of Formes and Customes is They have therfore ordained and hereby ordain all Summonds which formerly abode Continuation and shall be insisted in before them to be continued in time coming and an Act to be made thereanent and Letters to be direct thereon as was in use to be done before the Year 1651 not exceeding the Rates and Prices formerly exacted And also considering that during the Power of the late Usurpers the use and custome of writing in Latine was then discharged by the pretended Commissioners for Administration of Justice Therefore the saids Lords ordain all Charters Seasings and other Writes of that nature alswell such as pass the Seals as other ways which were in use to be formed and written in Latine to be continued in the same Language as formerly before the Year 1652. And to the effect none may pretend Ignorance hereof ordains these Presents to be published at the Mercat Cross of Edinburgh after sound of Trumpet by a Macer ACT anent Warnings Iune 11th 1661. THE saids Lords ordain That all wakenings of Processes lying undiscust be execute upon 24 hours against all such Persons as are for the time within Edinburgh or Leith and upon 6 dayes against all other Parties within this Kingdom and upon fifteen dayes against all such Persons as are out of the Kingdom ACT for retaining the Principal Writes presented to the Register and giving forth only Extracts thereof THE which Day the Lords of Council and Session taking into their consideration That the custom of the Clerks in the Usurpers time of giving back to the Parties the Principal Bonds Contracts and other Writes given in to be registrat did tend to the hazard and prejudice of the Leidges and was contrary to the practise formerly observed They do therefore ordain that the Clerks of Session and all Clerks of Inferiour Courts and Judicatories shall henceforth keep and retain the Principal Writes for which they shall be answerable and give forth only Extracts thereof as formerly before the Year 1651. and ordains these Presents to be published at the Mercat Cross of Edinburgh Likeas the saids Lords require the Clerks of the Session to be careful in preserving and keeping all Principal Bonds Contracts and other Writes to be given in to them to be registrat and that they be countable for them and for their Servants so long as they shall give them trust thereof And that once in the two years they deliver them to be keeped by the Clerk of Register with the Publick Records of the Kingdom ACT for Protestation Money Iuly 4. 1661. THE said day the Lords taking to their
ineffectual as to the designed end of the same do therefore statute and ordain That all Decreets of Bonorum and Charges to put at liberty to be raised thereupon shall thereafter contain the hail tenor of the Act of Sederunt above-written And that the Magistrats of Burghs shall not put out the Partie in whose favours the Decreet and Letters are granted untill first they put on the habit and come out of the Tolbooth betwixt 9. and 12. a clock in the Fore-noon with the habit on them as is prescribed by the Act. And ordain the Clerks of the Session the Keepers of and Writers to the Signet and others having interest to be careful that this Act be punctually observed And ordain a Coppy thereof to be delivered to the Baillies of Edinburgh to be Registrate in their Books and keeped for the entry and liberty of Prisoners in their Tolbooth ACT ordaining Advocations or Suspensions of Processes for Conventicles to be only past in presentia or by the three Lords in vacant time Iune 24. 1673. THis day the Lords ordained that no Bill of Advocation be past of any Processes depending before the Sheriffs and other Judges ordinary against Persons guilty of keeping Conventicles unless the same be past in presentia during the sitting of the Session or by three Lords met together in time of Vacancie and that no supension be past of Decreets given upon those Processes except upon Consignation of the sums decerned or in presence of the whole Lords or in time of Vacaâ—cie by three Lords And appoint Intimation hereof to be made to the Clerks of the Bills Letter anent Prizes Iuly 8. 1673. THis day the Lord Chancellor produced in presence of the Lords a Letter directed from the Duke of Lauderdail Lord Secretary by His Majestie 's Command to the Lord Chancellor President and remanent Senators of the Colledge of Justice which Letter being Read in presence of the saids Lords they ordained the same to be Recorded in the Books of Sederunt whereof the tenor follows For the right Honourable The Earle of Rothes Lord Chancellor of Scotland Sir James Daâ—ymple of Stair President of the Colledge of Iustice and the Remanent Senators thereof Whitehall Iune 30. 1673. My Lords Since the Receit of Yours of the 25. January I have been using my best Endeavours to know how to satisfie your Lordships desire therin And now having acquainted the KING tâ—erewith in presence of divers of his Council here I am commanded by His Majesty to let you know that the Treaty of Breda is certainly void by the War and that no Ally can claim any benefite thereby when they carry any provision of Victual or other Counterband Goods to the Ports of Our Enemies or when they have Goods belonging to Enemies on Board As to the other part of the Letter it was deliberatly thought fit in the Council of England That any number of the Dutch Nation being found aboard should not confiscat Ship and goods as it did during the last War and therefore that Article was kept out of the Rules which were given to the Court of Admiralty here in England But if any part of the Ship belong to any Inhabiting within the Dominions of the States-general the whole both Shipe and Goods are to be declared Prize and if the Master have his Residence in Holland you are left to judge in this case according to Law and as you shall think just I have likewise communicated to the KING your answers to the Swedish Envoys memorial And to the Complaints of the King of Polland and the City of Danzick which did give a great dale satisfaction to His Majesty and severalls of His Privy Council there who were presentâ— And Coppies of them were sent unto Sweden I am my Lord your Lordships most humble Servant Sic subscribitur LAUDERDAIL ACT for ordering new hearings in the Vtter-house Iuly 11. 1673. THE which day the Lords ordain any Lord who is to hear a Cause debated in the Utter-house before the Lord ordinary come forth shall go to the Bench and call the said Cause at 8 a clock in the morning And ordain the Advocats Clerks and Macers to be present and attend at the said hour and if no Procurators be present for that Partie that seeketh calling yet the said Lord shall proceed in making Act or Decreet and the said Cause is not to be heard any more thereafter And if none be appearing for the other Partie at the said hour or when the Cause shall be called then that Parties Procurators are not thereafter to be heard by the said Lord except the said Party or his Procurators give in two Dollers to the poor's Box. And ordain this Act to be recorded in the Books of Sederunt and intimate to the Advocats in the Utter-house Letter from His Majesty against Appeals Iune 17. 1674. THis day the Lord Thesaurer Deput produced in presence of the saids Lords a Letter direct from His Majesty to the Lord Chancellor Lord President and Remanent Senators of the Colledge of Iustice. Whereof the tenor follows CHARLES R. RIght trusty aud well-beloved Cusingâ— and Councilers Right trusty and well-beloved Councilâ—rs aud trusty and well-beloved We greet you well We received your Letter of the 28 February Last with an accompt of these Appeals given into you by the Lord Almond and Earl of Aboyne but could not then return any answer the Session being up And now upon full consideration of that whole affair We find it indispensably necessary for Our Service and the mentainence of Our Authority and for the quiet and security of Our Subjects in their Fortuns and Estates That the honour aud Authority of Our Colledge of Iustice be inviolably preserved and that there be an intire confidence in and defâ—rence to all the Decreets and Sentences thereof And after the Laudable Example of Our Royall Progenitors We do assure you that We will constantly mentain Our Authority exercised in that Court against all Incroachments Indignities and Reproaches that may be attempted against the same or against any of the Lords of Session whom We shall always cause to be held in special Honour as these who represent Our Person and â—ear Our Authority And as We cannot but declare Our dis-satisfaction with and abhorance of these Appeals So it is Our express pleasure that special care be taken to prevent the like practices for the future and for that effect that you cause solemn Intimation to be made to all Advocats Clerks Writeres and others who are members of or have dependence upon the Colledge of Iustice and others whom it may concern That none of them presume to advise consult propose plead speak or suggest any thing that doth import the charging of any of the Decreets and Sentences of the Lords of Session with In-justice whether in the Terms of Appealls Protestations Supplications Informations or any other manner of way either publickly in the exercise of their Function or privately in their ordinary conversation
with their Clients or others under the pain of being utterly excluded from exercising any Office in or depending upon the Colledge of Iustice and that all Advocats to be admitted hereafter have the same declared to them as a part of the Oath de fidâ—â— and obedience to the Lords which is â—eâ—customed to be given by Advocats at their entrie And We are graciously pleased that you proceed no further against those who gave in these late appealls nor â—gaâ—st these Advocats who refused to give their Oaths concerning their accession thereto providing these Advocats do somâ—nly disown these appealls and all other appealls and Protestations which may any way import a Charging of the Sentences of the Lords or their Inâ—eâ— locutors with un-justice and in case they refuse to disown the same We peremptorlie command you to debar them from the Exâ—rcâ—se of any part of their Function as Advocats in time coming And We do Authorizeâ— and strickly Command you to declare any membeâ— of the Colledge of Iustice or others who depend thereupon who shall not give obâ—dâ—ence in the particulars above-mentioned incapable to exerce any Office in or depending upon the Colledge of Iustice and for the better discovering cont ivances you are to receive no Supplications but such as are signed by an Advocat As also you are hereby required if need bees to put all who depend upon the Colledge of â—ustice to give their Oaths as Parties or Witnesses for dâ—scovering the contrivances and in case any other having no dependence upon the Colledge of justice shall present any thing Expressing or Importing the chaâ—ging of any of your Sentences with Injustice in the Terms foresaid or any other way We do Authâ—rize and Command you that you do immediately secure their Persâ—ns if they be presâ—nt and if they be absent that you isue forth Charges and all other Execution against them for that effect And that you give an accompt thereof to Usâ— That We may signifie Our further pleasure therein For doing of all which this shall be your sufficient warrand And so We bid you heartily Farewell Given at Our Court at Whitehall the 10 May 1674. And of Our Reign the 26. year Sic Subscriâ—itur By His Majesties Command LAUDERDAIL Iuly 23. 1674. ACT concerning Acts before answer THE Lords considering That in several Cases they are in use before discussing of the Relevancy of the points debated to ordain the Parties Pursuer or Defender or either of them to produce Writs or to prove certain Points of fact that they may have the whole matter intirely before them both as to the Relevancy and Probation whereupon Acts are Extracted Which are called Acts before Answer And in reguard Questions do and may arise concerning the import and effect of such Acts if the Parties be thereby so concluded as they may not thereafter propon new alledgances and what Terms and Dyets should be allowed for Probation and seing it will be a great prejudice to the Leiges if after Acts Extracted and Probation led thereupon Parties or their Pocurators should be permitted to to offer new alledgances not formerly insisted on in the Act for Probation whereof new Terms behoved to be asigned and thereby Processes would be drawn to a great length Therefore the saids Lords do ordain the Parties Procurators to propone all their alledgances in the Cause before or at the time of pronouncing these Acts before Answer And declare that after these Acts are Extracted they shall not be heard to propone any new alledgances which were competent but omitted to be proponed when the Act was pronounced And the Lords declare That where the Parties Pursuer or Defender are before answer to the relevancy burdened with the Probation of any point they shall have the same Terms or Dyets for Probation thereof as by the constant practice is allowed to Pursuers for proving their Lybells when the same are admitted to their Probation but if in the same Acts any point be found relevant and admitted to Probation that the Parties Pursuer or Defender to whose Probation the same is admitted shall have the same Dyets for proving thereof as are allowed to them respectivè in Acts of litis contestation But after the Probation upon the saids Acts is closed they shall not be admitted to adduce any other probation of any points formerly alledged in the Act. And further the Lords declare that where any Alledgance or Reply is founded upon Writs and that before Answer there to the Writs are ordained to be produced in case the Party burthened with the producing of these Writs shall fail therein and thereupon the Term shall be circumduced against him that the alledgance or reply in the Case foresaid shall be holden as not proponed ACT for tryall of those presented to be Ordinary Lords of Session Iuly Last 1674. THE Lords considering That the KING' 's Majestie by His Letter May 19. last did require them to present to His Majesty what Tryal they should think best and firest to be taken for Cognoscing the Qualifications and sufficiency of such Persons as His Majesty shall hereafter Nominat to supply any Vacant place in the Session and the saids Lords in answer thereunto having offered their humble opinions That thereafter when any new Lords of Session shall be presented by His Majesty for tryal of their Qualifications they shall sit three days beside the ordinary in the Utter-house and shall have inspection of the said Processes which shall be carried to Interlocutor and shall make report of the Points taken to the Interlocutor in presence of the whole Lords As also for compleating their Tryal they shall sit on day in the Inner-house and after any Dispute is brought to a Period and the Lords are to advise the same in order to the pronouncing their Interlocutor they shall resume the Dispute and first give their opinion there anent in presence of the whole Lords Likeas His Majesty by His Letter of the 14. of this instant having approven the foresaid Rule offered for the Tryal of such as shall be presented by His Majestie as ordinary Lords of Session and appointed it to be entred in the Books of Sederunt for that purpose The said Lords in obedience to His Majesties commands do ordain the same to be observed as the constant Rule in all time coming for Tryal of such Persons as shall be presented by His Majesty to be ordinary Lords of the Session And ordain these presents to be Recorded in the Books of Sederunt Ianuary 26. 1675. THIS day compeared Personally George Marqueâ—s of Huntly in presence of the Lords and declared that he having given Commission to divers of his Friends for managing his affairs during his absence forth of the Countrey who as he was informed had given in an Appeal in an Action pursued in his Lordships name against Gordon of Carnborrow and craved that in regard he doth passe from the said Appeall that warrant might be given to deliver up the same to him
Which desire the Lords granted ACT concerning Prisoners for Debt February 5. 1675. THere being an Address made to the Lords of Council and Session by the Keeper of the Tolbooth of Edinburgh representing That Persons imprisoned in the said Tolbooth for Debt upon Captions having obtained discharge of the Debt are pressing to be liberat upon production of the discharge without a Charge to set at Liberty which he refuses to do alâ—â—it the same be usually done by the Keepers of other Tolbooths And particularly by the Jailor of the Tolbooth of the Canongate and therefore dâ—siring that the Lords would allow him the same priviledge which is assumed by the Jailor of the Tolbooth of the Canongate or otherways to determine what both of them ought to do herein And the saids Lords having taken the general Case to their consideration and finding that where the Debt for which Persons are Incarcerat is in-considerable the Expenses of procuring â— Charge to set at Liberty will sometimes near equal the Debt it self the Prisoners being also poor and not able to satisfie the saids Expenses Therefore the saids Lords do Authorize and allow the Magistrates of Burghs to set at Liberty out of their Tolbooths Persons imprisoned for Debt by vertue of Letters of Caption upon production of a sufficient discharge of the Debt granted by the Creditor at whose instance they are incarcerat bearing a Consent to the Debitors Liberation and duly registrat if the sum do not exceed two hundred merks Scots and the Prisoner be not arrested at the Instance of other Parties the Magistrats or Keeper of the Tolbooth being always careful to keep an Extract of the said discharge and finds no necessity in this Case of a Charge to set at Liberty But if the sum for which the Debitor is Incarcerat exceed two hundred merks Scots the Lords discharge the Magistrats of the Burgh to Liberat him out of Prison without a Suspension and Charge to set at liberty under His Majesties Signet February 9. 1675. ACT anent Bills of Suspension THE Lords finding it expedient That some setled Rule and Order be set down concerning the presenting and passing of Bills of Suspension That any abuses which of late have creept in may be prevented in time coming do ordain that hereafter in time of Session no Bill of Suspension shall be presented to any Lord to be past but to him who shall be ordinary Lord for the time upon the Bills and that both in time of Session and Vacancy the Ordinary shall continue upon the Bills from Tuesday to Tuesday in the inseuing week And ordain the Bills to be presented only by the Clerk of the Bills or his Servant and when the Bill of Suspension shall be presented if the Ordinary after the perusal thereof find the Reasons relevant and sufficiently instructed that he passe the Bill And in case application shall be made to him by the other Partie concerned for a hearing the Ordinary shall Writ towards the foot of the Bill that before the Bill of Suspension be expede and go to the Signet the other Partie shall see and answer and in that Case he may stop execution for sometime not exceeding a moneth from the time of presenting the Bill And if the Ordinary shall reâ—use the Bill of Suspension he shall mark upon the back of the Bill with his own hand that the Bill is refused in respect the Reasons are either not relevant or not instructed which Bill the Clerk is thereby ordered to keep and mark with his hand upon the back thereof what Writs are produced for instructing the Bill And if the same Bill or any new Bill of Suspension upon that matter shall be desired to be presented to another Lord being Ordinary for the time the Clerk shall present to the Ordinary the Bill of Suspension which was formely refused In which Case the Ordinary is not to passe the Bill untill it be presented to the whole Lords in time of Session or to three Lords met together in time of Vacancy ACT ordaining Processes after Avisandum to be carried to the Ordinary that same day and reported in his Week Iune 2. 1675 THE Lords considering the inconveniences arising from the giving up of Processes to Parties or their Advocats after the same are taken to Interlocutor the reporting of Causes being thereby much delayed and it being contrary to the ancient Custom Therefore the saids Lords ordain that in time coming after any Cause is dispute before the Ordinary in the Utter-house and an Avisandum made therein to the Lords that the Process shal that same day be carried by the Clerk or his Servants to the Ordinary that he may peruse the same and that he may endeavour to report to the Lords the points taken to Interlocutor the next day thereafter or at fardest once in his Week And the Lords discharge either the Ordinary or the Clerk to give up or lend out to the Parties or any Person for them the Processes or any part thereof after an Avisandum is made therein to the Lords or when the Ordinary shall call for the Process to consider it himself And if any Act or Decreet pronounced by the Ordinary shal be stopped upon the desire of any of the Parties for a new hearing that the Lord who formerly hard the Cause shall go to the Bench in the Utter-house betwixt 8. and 9. a clock in the morning before the ordinary come out and call and hear the Parties Procurators wherein the Lord was Ordinary the immediat preceeding Week shall have the preference before any other Lord who was Ordinary in any of the former Weeks Likeas the Lords discharge any writen Dispute upon Bills of Suspensions or Advocation but where the Ordinary upon the Bills shall think fit to allow a Bill to be seen that he call the Parties the next day and hear what they have to say viva voce without taking in written answers Hugh Riddel sent to the Plaâ—tations Iuly 20. 1675. THE which day anent the Petition given in to the Lords by Iohn Riddel Merchant in Edinburgh shewing that Heugh Riddel the Petitioners only Brother having committed an unexcusable Crime Whereat the Supplicant blushes in cutting some Silver-buttons off a Gentle-mans Cloaths in the Utter-house during the time that the Lords were sitting and being therefore committed to Prison the saids Lords have most justly ordered him this day to be brought by the publick Executioner from Prison to the great door of the Session House at 9. a clock in the forenoon and to stand till 10. a clock with a Paper on his Fore-head expresing the Crime whereof he is guilty and thereafter to be taken by the foresaid Executioner to the Trone and there to stand with that Paper on his forehead from ten to eleven a Clock Which Sentence the Supplicant acknowledgeth to be less then the said Hugh Riddel deserveth only he being a young man and related to honest Parents and the Supplicants Brother and never known to
same Station and jointly Consult their Clients Causes which being contrair to the Custom always formerly observed and very inconvenient and prejudicial to the Leidges who are thereby put to Consult their Advocats severally and have not the benefit of their joint Advice as to the matter and manner of carrying on their Causes whereof the Lords have seen instances in their own presence by some Advocats their difiering and disclaiming the alleadgences proponed by others for the same Party For remeid whereof the Lords declare that if any Advocat in time coming upon the account of Personal prejudice or any other pretence shall reâ—use or forbear to Consult or Concur in the capacity of an Advocat with any others whom the Lords do or shall authorize to be Advocats that they shall be removed from their Imployments ACT concerning the sisting of Execution upon Bills of Suspension Iuly 3. 1677. THE which day the Lords considering that sometimes after Bills of Suspension are past the same are not exped at the Signet through the Parties fault in not finding Caution or other neglect and that Bills of Suspension are frequently by Deliverance of the Orpinary appointed to be seen by the Charger or his Procurators and in the mean time Execution stopped at the Chargers Instance indefinitly not limiting the same to a certain day And seeing some Question may arise if in these Cases Execution should be sisted and during what time For clearing whereof the Lords declare that where a Bill of Suspension is past and intimat or shown to the Charger or to the Messenger the time of the Execution but not expede at the Signet That Execution is only to sist for the space of fourteen dayes after the Date of the Deliverance passing the Bill unless the Ordinary upon further consideration by a Signature upon the Bill Subscribed by him discharge the expeding of the Bill untill a further day or allow the Suspender a longer time for expeding thereof providing the same exceed not a Month from the Date of the Deliverance of the Bill passing the same After elaâ—sing whereof of the Lords declare that the Charger may proceed to further Execution notwithstanding of the foresaid past Bill And if the Ordinary express no day but stop Execution indefinitly The Lords declare that the stop shall continue only for the space of fourteen dayes from the Date of the Deliverance as aforesaid but prejudice alwayes of Deliverances given by the Lords in presentia upon Petitions ordaining the Reasons of Suspension to be Discust summarly upon the Bill and in the mean time discharging execution In which case Execution is to sist untill the Cause be Discust or the Stop be taken off by the Lords And the saids Lords prohibite the Clerk of the Bills to write any Date upon the Deliverance of a Bill of Suspension but in presence of the Ordinary and that it be the true Date wherein the same is Subscribed ACT concerning the Suspensions of Protestations Iuly 10. 1677. THE Lords considering that the Act of Parliament doth appoint that where a Protestation is Suspended the Deliverance of the Bill should mention that it is the second Suspension and so forth of all the Suspensions obtained thereafter that the same is the third or fourth Suspension Yet notwithstanding by the Fault or Inadvertency of the Clerk of the Bills the same is not observed Therefore the Lords declare that where there is a Suspension past of a Protestation if the Deliverance of the Bill do not bear that the same is the second Suspension and so forth of any subsequent Suspensions that they will recal the Suspension albeit the same be exped at the Signet as being contrair to the Act of Parliament ACT against Sollicitations November 6. 1677. THE Lords taking to their serious consideration that by several Acts of Sederunt The Lords have formerly prohibited all Sollicitations in Causes depending before them whereby Parties did endeavour and expect favour by the Credit and Moyon of themselves or their friends interposing with the Lords and Personal respects not relating to the Cause to the great discouragement of others who had not the like friendship or moyon and to the great trouble of all conceiving it their interest and that it might be looked on as a slight or neglect if they did not upon all occasions by themselves or their friends Sollicit the whole Lords at their Houses lying scattered through the several places of the City imagining thereby to have much promoted their interest and payed respect to the Lords who have no regard to but are troubled with such Sollicitations it being their duty and design to do Justice to all impartially without respect of Persons Notwithstanding of which Acts and endeavours of the Lords against Sollicitations the same have been revived upon pretence of giving Information in the Cause but now seing written Informations are become ordinary and that all that ought to be represented to the Lords in any Case may easily without trouble be done by written Informations sent to the Lords by a servant which they will heartily accept and will not fail to peruse and finding it unfeasible to hinder Sollicitations so long as they admit of Verbal Information Therefore the Lords do declare that they will admit of no Sollicitation or Verbal Information in any Cause depending or that shall depend before them during the Dependence thereof either by the Parties themselves or by any other Person And to the end the same may be effectual against all importunity The saids Lords do Enact and Declare That it shall be a relevant Reason of Declinator against any of the saids Lords Ordinary or Extraordinary that they have received or heard any Sollicitation or Verbal Information in the Cause during the Dependence thereof But upon the first observing that the matter offered to be spoken to them did bear or import any Sollicitation or Verbal Information in a Cause depending if they did not use all the means they could to stop or withdraw to hear any further thereof Or in case any Sollicitation or Information in a Cause depending be offered by a Missive-letter if they do not present the same to the Lords Likeas the saids Lords do strictly Prohibite all Advocats Clerks Writers and others depending upon the Colledge of Justice or their Servants to offer to any of the Lords any Sollicitation or Information by Word or Letter but only by Written Informations Bills or Tickets for calling under the pain of Deprivation and being secluded from the House excepting the Clerk of the Process for clearing any Interlocutor or Minute in the Cause Likeas the saids Lords do declare That if any Party or others of the Leidges offer any Sollicitation or Information by Word or Missive that they will Ammerciat them as follows viz. Every Nobleman in three hundred merks Scots Money Every Baron or Knight in two hundred merks Every other Heretor Gentleman or Chief Burgesse in one hundred Pounds And every other Person in one
hundred merks toties quoties to be applyed for the use of the Poor It is alwayes hereby declared That the Verbal Information of any Party or other Person for him when required or allowed Judicially or before Auditors in Diets appointed for both Parties to be heard or before the Ordinaries upon the Bills in relation to the passing of Bills of Suspension or Advocation or before any of the Lords to whom either by consent of Parties or by appointment or Recommendation of the Lords an Accommodation in any Process is referred is no wayes hereby Prohibited And to the effect the Leidges may be secured against any prejudice which they may apprehend by debarring them from Sollicitation or Verbal Information the Lords do declare that there shall be free access for all Persons to Inform them by Written Informations only to be delivered by Servants and that in all Cases from time to time and for the more sure delivery of Informations they ordain that every one of the Lords shall have a Servant attending in his House fromâ— five a Clock to eight a Clock at night who shall be holden to receive any Informations doubles of Bills or Tickets for Calling that shall be given in without payment of any Money under such pain or punishment as the Lords shall think fit And which Informations Bills or Tickets shall be delivered by the Servants of Advocats or of the Parties and by none others And Ordain this Act to be affixed on the Wall of the Outter-House And to be Printed that none may pretend ignorance thereof ACT concerning Bills relating to concluded Causes November 9. 1677. THE Lords considering that sometimes after concluded Causes are Advised and Sentences pronounced therein Parties endeavour to delay the Extracting thereof for a considerable time and then do offer Petitions for alteration of the Decreet whereby the Process not being recent in the Memory of the Lords they are put of new to peruse the Process and Probation For remeidâ— whereof the Lords Declare that in timecoming they will not receive any Petitions in relation to the Stopping or altering of any Decreet or Interlocutor pronouncing upon Advising of concluded Causes unless the Petition be given in within the space of two Sederunt dayes after pronouncing of the Decreet or Interlocutor Suspensions of the Excise to be past only in presentia December 6. 1677. THE which day the Lords Ordained that no Suspension shall be past of any Charges given for His Majesties Annuity or Excise except in presence of the whole Lords Warrant anent Precepts for giving Seasine upon Retours February 15. 1678. THE which day the Lords Ordained that Bills craving Warrant to the Director of the Chancellory to direct Precepts to a Sheriff in that part to grant Infeftement upon Retours in respect of the Sheriffs refusal to Infeft the Party shall not be past in time coming by the Ordinary upon the Bills but the same shall be past by the whole Lords in presentia and the Lords discharge the Director of the Chancellory to direct or give out any Precepts to Sheriffs in that part for granting Infeftment upon Retours unless the Warrant be past in presentia as said is ACT in Favours of the Lord Register February 22. 1678. THE which day the Lords considering that the Kings Majesty hath nominated and appointed Sir Thomas Murray of Glendook one of their number to be Clerk of Register with power to him to receive all the Profites of the Office since the advancement of Sir Archibald Primerose to be Justice-General and he being accordingly admitted to the said Office Therefore the Lords do grant Warrant to the Lords Newtoun and Hercus to take the Oaths of these Persons who by their Warrant were intrusted with the keeping of the publick Registers which were in the Custody of the late Clerk of Register if they have abstracted or imbazeled any of the said Register Books or Warrants or if they be all intire and in the same order as they are set down in the Inventar insert in the Books of Sederunt And ordain the Keys of the Rooms wherein these Registers are viz. that below the Parliament-House and of the Chamber in the Castle of Edinburgh to be delivered to the said Lord Register And grants Warrant and Order to Mr. Alexander Gibson one of the Clerks of Session to make Compt and Payment to the said Lord Register of the Dues of the Clerk of Registers Office which he has intrometted with by Warrand of the Lords and declare that this Act with the said Lord Register his receipt shall be a sufficient Exoneration to the said Mr. Alexander Gibson thereof ACT Discharging Clerks to lend out Processes to any except Advocats and their Servants February 26. 1678. THE Lords considering the abuse committed by giving out of Processes to some Persons attending the House and pretending to Negotiat in and mannage Processes who are neither Advocats nor Servants to Advocats For remeid whereof the saids Lords Discharge the Clerks of Session and their Servants to give up or lend out to any Persons any Processes or Writes produced therein except only to Advocats and their known Servants And the Lords Declare that each Advocat shall be allowed to have one Servant and if any shall desire to have more Servants allowed to them then one appoint them to represent the same to the Lords and they will take it unto their Consideration ACT prohibiting the Clerks to give up Bills relating to Processes whereupon there is any Deliverance of the Lords Iuly 23. 1678. THE which day the Lords did Discharge the Clerks to give up to Parties any Bills or Petitions whereupon there are Deliverances relateing to Interlocutors or Decreets in Processes except where the same are appointed to be seen and Answered And appoint the Clerks to keep the foresaid principal Petitions bearing Deliverances of the Lords and to give out to parties only doubles thereof ACT Discharging Advocats and Writers Servants to Write their Masters Subscription Iuly last 1678. THE which day the Lords Considering that there is a corrupt Custom lately crept in of Advocats and Writers Servants adhibiting their Masters Subscriptions to Petitions and Bills given in to the Lords which is not to be endured Therefore the Lords declare that if in time coming the Servant of any Advocat shall presume to Adhibite and Write his Masters Subscription to a Petition or to the out-giving or return of a Process or if the Servant of any Writer to the Signet shall Adhibite his Masters Subscription to a Bill of Suspension or other Bill used to be drawn by Writers that they will proceed against and punish these Persons as falsaries and forgers of Writes ACT Ordaining Hornings and Inhibitions to be Booked which were not Booked the time of the Vsurpers Ianuary 3. 1679. THE which day the Lord Register Newtoun and Hercus did make Report to the Lords that conform to the Warrand given them of the fourth of December last they had considered the condition of
December 24. 1679. THE which day the Lords considering that notwithstanding of the Act made against Sollicitation and verbal Information dated the sixth day of November 1677. years Yet some Persons are so bold as to venture to Sollicite the Lords in their Actions And it being the Resolution of the saids Lords that so laudable and necessary an Act be made effectual Therefore they declare that in any Process now depending or which shall hereafter be intented before them when the same comes to be advised they will purge themselves concerning their receiving any Sollicitation or Verbal Information in the Cause if it shall either be desired by the Partis or moved by any of their own number And that they will delate the Persons who do Sollicite or Verbally inform them that they may be punished therefore conform to the said Act. ACT anent the taking of Renunciations from Persons Inhibited February 19. 1680. THE Lords considering That it hath been the ordinary Custom of Debitors to make payment of sums due upon Wodset or Anualrent by Infeftment and to accept Renunciations or grants of Redemption from the Wodsetter or Annualrenter albeit the Credtor had been Inhibit before payment which being made bona fide the Debitors conceived themselves secure and that they needed not search Registers to find Inhibitions against the Wodsetters or Annualrenters Which hath tended much to the detriment of Creditors seing such Sums secured by Infeftment were not arrestable For remeid whereof the saids Lords declare that if the user of an Inhibition upon search of the Registers or otherway shall find Infeftments of Annualrents or upon Wodsets in favours of their Debitor being Inhibit and shall make intimation by Instrument of an-Nottar to the Persons who have Right to the Reversion of the saids Wodsets or Annualrents that the Wodsetter or Annualrenter stands Inhibit at their instance and shall produce in presence of the Partie and Nottar the Inhibition duely Registrat Then and in that Case the Lords will not sustain Renunciations or grants of Redemption although upon true payment not being made bona fide in respect of the Intimation unless the Redemption prcceed by way of action the Inhibiter being always Cited thereto or by Suspension of double Poynding upon consignation of the sums whereupon the Annualrent or Wodset is Redeemable And ordain this Act to be Printed and afixed upon the Wall of the Utter-house that the same may be known to all the Lelges ACT against Petitions for alteration of Acts Extracted February 24. 1680. THE which day the Lords considering That some times after Acts of Litis contestation are Extracted Petitions are given in to them by one of the Parties craving the Act to be altered wherein there may be prejudice to the other Partie concerned not being present nor at that time obliged to be present conceiving himself in tuto after Extracting of the Act. For remeid whereof the Lords declares that in time coming they will receive no Bills or Supplications for alteration of Acts after the Acts are warantably Extracted seing both Parties or either of them may have a sight or Scroll of the Act before Extracting if they desire the same And likewise because sometimes Bills are given in for adducing of Witnesses which have not been contained in the first Diligence but are alleadged to have come to Knowledge since the first Diligence was taken out or after taking out of the second Diligence whereby Witnesses come to be Examined when the other Partie is not present nor obleiged to attend that they may either object against the hability of the Witnesses or propone Interrogators to them Therefore the Lords do declare that in case upon any speciallity they do give warrant to Examine any Witnesses not contained in the first and second Diligence that they will only admit the saids Witnesses to be examined at the first and second Terms of Probation when both Parties are obliedged to attend His Majesties Letter in favours of the Lord Register anent the nomination of the Clerks of Session Iune 8. 1680. CHARLES R. RIght Trusty and well beloved Councellours and Trusty and well beloved We Greet you well Whereas by Our Letter to you of the 24. of May 1676. We did Ordain That the three Clerks of the Session who do Expede your Decreâ—ts shall be Nominated by the Senators of Our Colledge of Iustice in all time coming And that the Clerk of Register give them Deputations from time to time without prejudice to the Clerk of Register of all other Benefit and Emolument belonging to or depending upon that Office And seing the Office of Clerk of Register was then Vacant and that the Nomination of the Clerks of Session was always Inherent in and Depending upon the office of Clerk of Register And that since We have advanced Sir Thomas Murray of Glendook one of your number to the said Place And being well satisfied with the good Service done by him to Vs in the late Convention of Estates and upon several other occasions Therefore as a Mark of our Royal favour to him We do by these presents Recall our said Letter anent the Nomination of the Clerks of Session and do Impower Authorize and Appoint the the said Sir Thomas Murray during his enjoyment of the said Office of our Clerk of Register Solely to nominate and appoint the Clerks of Session So that upon Death Demission and Vacancy of any of the Clerks of Session the said Sir Thomas Murray is to grant Deputations to such Persons as he shall think fit and that during their Lifetime and shall as absolutely amply and freely use and exerce the said Office of Clerk of Register as any other Clerk of Register formerly did or might do declaring the same to be as Effectuall to the said Sir Thomas Murray as to his sole Nomination of the Clerks of Session as if it had been contained in his Gift of the Office of Clerk of Register And ordaining these Presents to be Recorded in your Books of Sederunt And so We bid you heartily Farewell Given at Our Court at Whitehall the twelfth day of November One thousand six hundred seventy and nine And of Our Reign the thirty one year Sic subscribitur By His Majesties Command LAUDERDAIL ACT concerning Nottars Iuly 29. 1680. THE Lords considering That by Acts of Parliament it is Statute and Ordained That Nottars be sufficiently Qualified for exercing that Office after examination by the Lords of Session that sufficient Caution be found for their due Administration of their Office and in case the Caution be not sufficient that new and better Caution be found and after the Decease of the Nottars their Protocalls are Ordained to be brought in to the Clerk of Register or his Deputs appointed by him to that effect who is impowred to Revise the Protocalls of all Nottars and consider in what Condition they are And albeit the due observance of these Acts of Parliament be a publick Concern as to the interest and
are grantted where the persons live at a great distance and the matter is of Small moment By granting of which Commissions the Petitioners are frustrate of the Dues payable to them in case the Parties and Witnesses did come here and Depone before the Lords and therefore craving that they might have their Dues for Parties and Witnesses where they are Examined by Commission which being taken to consideration by the saids Lords they Ordain that in time coming where Commissions shall be granted by the Lords for Examining Parties or Witnesses that the Macers shall have the half of the Dues which are payed to them when Parties and Witnesses do compear before the Lords and Depone viz. twelve shilling scots for ilk Party to be Examined by Commission to be payed in manner following viz. where a Commission is granted for taking a Parties Oath that the Dues be payed to Francis Scot Keeper of the Minut-book within fourty eight hours after the Commission shall be put up in the Minut-book and in case the same be not payed within that space that the Commission shall be delet out of the Minut-book and not Extracted until the same be put up again and the Dues payed and that the saids Dues for Witnesses be payed at the return of the Report and Commission before an avisandum be put up thereof in the Minut-book And to the end the number of the Witnesses may be known that the Person to whom the Commission is granted shall set down upon the back of the Commission or Report a list subscribed by him of the Witnesses names and the Clerks are hereby Ordered to insert in the Commission a Warrant to the Commissioner to transmit that list with the Report of the Comission and that Francis Scot attest under his hand that payment is made to him of the saids Dues before an avisandum be put up of the Report in the Minute-Book ACT anent Seasins and Reversions of Lands within Burgh February 22. 1681. THE Lords of Council and Session considering that the Act of Parliament 1617. anent the Registration of Seasins and Revâ—rsions of all Lands and Annualrents there is an exception of Land and Annualrents lying within Burgh and within the Burgage Lands of Royall Burrows which is supposed to have been upon account of the Books of the Town Clerks of Royal Burrows wherein the Seasins and Reversions of such Lands might be found Nevertheless the Lords finds that not only Seasins within Burgh are sometimes omittâ—d and not found insert in the Town Clerk Books But that frequently Reversions of Tenements and Annualrents within Burgh and Assignations to and Discharges of Reversions and Bonds for granting such Reversions are not to be found in the saids Books to the great detriment of the Leidges and especially of the Inhabitants of the saids Royal Burrows For Remeid whereof the Lords do appoint and ordain the Magistrates of Royal Burrows and their Successours in Office to take good Caution and Surety of their Town Clerks that now are or shall be in Office that they insert in their Books all Seasins of Lands Tenements and Annualrents within their respective Burghs or Burrow-lands and of all Reversions Bonds for granting Reversions Assignations to and Discharges of Reversions Renounciations and grants of Redemption of any Tenements or Annualrents within their Burghs or Burgage Lands that shall be given at any time hereafter within the space of threscore dayes from the dates thereof respective in like manner as is prescribed by Act of Parliament anent the Registration of Seasins or Reversions of Lands without Burgh and that the said Surety be under the pain of the damnage that shall befall to any Party through the Latency of the saids Writes which shall be past by the saids Clerks or presented to them to be insert in their saids Books Likeas the Lords ordains the saids Magistrates to insert an Act hereupon in their Town Court Books and to cause publish the same by Tuck of Drum that none pretend ignorance And further the Lords do Declare that if any Party shall neglect to insert their Seasins Reversions Bonds for granting of Reversions Assignations to and Discharges of Reversions Renounciations and grants of Redemption in manner foresaid that the Lords will hold and repute them as latent and fraudulent Deeds keeped up of design to deceive and prejudge the Purchasers of Tenements and Annualrents within Burgh bona fide for just and onerous Causes and ordains the Provost of Edinburgh to intimate this Act to the Commissioners of the Royal Burrows at the next Convention of Burrows And ordains thir Presents to be Printed and Published at the Mercat Cross of Edinburgh and other places needful CERTAIN DECISIONS Of several Debates Intented and Debated BEFORE THE LORDS OF COUNCIL SESSION IN Some Weighty and Important Affairs brought before them Beginning the 29. of June 1661. and ending in July 1681. Iames Talzifer contra Maxtoun and Cunninghame Iune 29. 1661. IOHN KER Merchant in Edinburgh having an Wodset-Right of some Tenements in Edinburgh William Clerk his Creditor Comprized the Wodset-Right from him and obtained Decreet of Removing against the Tennents of the Tenements Iames Tailzifer having Right to the Reversion of the said Wodset consigned the Sum for which the Wodset was granted in the hands of the Clerk of the Bills and thereupon obtained a Suspension of the Decreet of Removing and thereafter having obtained Right from William Clerk to his Appryzing did by Supplication desire the sum Consigned by him to be given up to himself 1. Because the Consignation was not orderly made conform to the Reversion And 2. Though it had been orderly yet before Declarator he might pass from the Consignation and take up his Money whereby the Wodset Right wouâ—d remain unprejudged 3. The Wodset-Right being now returned to himself by acquiring Clerks Appryzing he had thereby Right to the sum Consigned for Redemption of the Wodset Compearance was made for Maxtoun and Cunningham for whom it was alledged that the consigned Sum ought to be give up to them because before William Clerks Appryzing they and William Clerk had joyntly obtained from the King a Gift of the Escheat and Liferent of the said Iohn Ker who had been year and day at the Horn before Welliam Clerk Appryzed from him so that the sum Consigned being now moveable fell under Kers Eâ—cheaâ— and thereby they have Râ—ght to two third parts thereof and Clerk or Tailzifer by his Right can only have the other third and if the Sum were not â—ound to fall under Kers Eâ—cheat the Annualrent thereof during Kâ—rs 〈◊〉 would fall to the three Donators of his Liferent equally and the â—um ought to be given out in security to them for their Liferent and to Tailzifer as having Right to Clerks Appryzing in Fee except the third thereto Clerk had Right as joynt Donator with them neither could Tailzifer pass from his Confignation seeing thâ—y accepted thereof nor could he object against any informality in the
Nottar as Town Clerk for the time The Lords sustained the alleadgeance to prefer Mackitrick The Executors Mr. Iames Fairly Minister of Leswald contra the Parochiners Iuly 5. 1662. THE Executors of Mr. Iames Fairly having obtained Decreet before the Comissaries against the Parochiners for the Ann as being the hail Year 1658. In respect the Minister died in February in the Year 1658. The Decreet was Suspended on this Reason that the Ann could only be half a Year seeing the Minister died before the Sowing of the Cropt or Whitsonday because if a Minister serve after Whitsonday he has the half of that years Stipend albeit he be Transported or Deposed otherwayes if a Minister should serve the whole Year till Michalmass day and then be Transported or Deposed he should get nothing so that the Ann being half a years Stipend more then the Minister served for he having only survived till Michalmes 1657. Has only the right to the Michalmes proprio jurae and half a Year thereafter as the Ann. The Charger answered That in Teinds and Stipends there are not two Terms but Michalmes for all and therefore if the Incumbent be disposed or transported before Michalmes he has nothing that Year but if he die after Michalmes any time before the beginning of the nixt Year proprio jure he has the Year he died in and the half of the next as his Ann but if he live till Ianuary in the year ensuing he has that whole year as his Ann. Which the Lords found relevant and therefore the Lords found the Letters orderly proceeded Duncan Drummond contra Colline Campbel Eodem die DVncan Drummond pursues Colline Campbel for payment of a Debt of his Fathers because in a Writ betwixt his Father and him The Father had Disponed all his moveables to him and he had undertaken his Fathers Debt whereby the Pursuer as Creditor had interest to pursue him to pay this Debt The Defender having alleadged that the Band and Disposition was never a delivered Evident either to the Father or to the Son but two blanks subscribed by them both were put in the hands of a Nottar to fill up the Bond and Disposition but before delivery both Parties resyled and desired the Nottar to Cancell and Destroy them yet Eight or Nine Years after the Nottar gave them up to this Pursuer and neither to the Father nor to the Son and the Question being how this should be proven The Lords before answer Ordained the Nottar and Witnesses insert to be examined ex Officio which being done their Testimonies proved as is alleadged before Then the Question was in jure whether the Depositation of Writs could be proven any other way then by the Oath of the Partie in whose favours the Writs were conceived he having the same in his hands The Lords found that seeing these two Writs were not produced by the Father nor the Son by and to whom they were mutually granted but by a third Partie in whose favours a Clause therein was conceived in that case the deposition probable by the Writer and Witnesses insert and by the saids Testimonies found the Writs null Robert Bones contra Barclay of Iohnstoun Iuly 9. 1662. RObert Bones having arrested certain Goods and Bestial as belonging to Iohn Wood his Debitor in the hands of Barclay pursues for making the same forthcoming The Defender alleadged absolvitor because the Goods Lybelled the time of the Arrestment were the Defender proper Goods Disponed to him by the said Iohn Wood for anterior Rests and Debts and delivered also before the Arrestment It was Replyed The Defense ought to be repelled because Wood the Disponer was Rebell and at the Horn before the delivery of the Goods at the Pursuers instance and whereby the Tradition being after the Horning the Disposition is null as being incompleat before the Horning and after the Horning the Rebel could do nothing to prejudge the KING or his Donatar or the Pursuer for the Debt whereupon he was denuded which by the Act of Parliament one thousand six hundred twenty one affects the Escheat Goods ubicunque The Defender answered That the Reply is not Relevant unless it were alleadged that the Horning had been before the Disposition for it is lawful for Creditors either to Poynd Arrest or take Dispositions of their Debitors Goods though Rebel being for Debts anterior to the Horning if the Disposition and Delivery be prior to Declarator neither can the Act of Parliament one thousand six hundred twenty one against Dispositions in defraud of Creditors operat here because the Disposition is anterior to the Horning and for an onerous cause The Lords found the Defense Relevant notwithstanding the Reply Laird of Lamertoun contra Hume of Kaimes Iuly 10. 1662. HOom of Kaimes being Infeft upon an Appryzing of the Lands of Northfield led against Lamertoun pursues the Tennents for Mails and Duties and obtains Decreet which was Suspended and Reduction thereof raised on this Reason that it was spreta authoritate judicis there being an Advocation judicially produced before the Sheriff before pronouncing at least before the Extracting of this Decreet in so far as the Suspender came to the Sheriff Court at the ordinar time of the Court Day at eleven hours and produced the Advocation but the Sheriff had fitten down that Day contrair his Custom at ten hours and had pronounced the Decreet before eleven hours The Charger answered non Relevat that the Advocation was produced before Extract not being before Sentence pronounced because albeit inferiour Judges are accustomed sometimes to stop their own Decreets after they are pronounced before Extracting yet sententia definitiva est ultimus actus judicis and the Extract is but the Clerks part so that it can be no contempt albeit the Judge would not prohibite the Extract and as to theâ— other Member that the Sheriff sat his Court an hour before the ordinar time non Relevat unless he did it of purpose to anticipat this Advocation The Lordâ— found the first member of the Reason that the Advocation was produced before Extract after Sentence non Relevat and as to the other member they found it relevant as it is circumstantiat to infer that it was done of purpose to anticipat the Advocation without necessity to prove otherwayes the purpose and in that case declared if the same were proven they would turn the Decreet in a Libel Iohn Ker contra Ker of Fernilee and others Eodem die IOhn Ker having granted a Bond whereupon he being Charged to Enter Heir to several persons his Predecessors and having renounced their Lands were adjudged John took Assignation to the Adjudication himself and pursues the Defenders for exhibition of the Rights and Evidents of the Lands and Delivery thereof The Defender alleadged absolvitor First Because the pursuit being upon the Pursuers own Bond now again Assigned to himself confusione tollitur obligatio The Lords Repelled this Defense Secondly absolvitor because the Pursuer can have no Interest upon
it cannot be understood of being under the Pursuers command all her life and so can only be meaned if Magdalen miscarry contrair to the Pursuers advice in some considerable matter of her carriage and however it is not a suspensitive condition hindring the payment of the Legacy but oblieging the Legatar thereafter The Lords found the Legacies constitute and in terms for said valid and as for Magdalens Legacy declared that in case Magdalen miscarried and took not the Pursuers Advice that she should be lyable to refound the Legacy to the Pursuer but would not put her to find Caution for that effect the condition being so general Katharin Kinross contra the Laird of Hunthill THe Laird of Hunthill being oblieged by Bond to pay a sum to umquhil Mr. Beverly and the said Katharin his Spouse the longest liver of them two in Conjunct-fee and the Heirs betwixt them which failzing his Heirs or any person he should design whereupon they were infeft in an Annualrent The said Katharin having charged for payment of the sum Hunthill suspended alleadging that she was but Liferenter and he could never be in tuto till the Feear were called The Lords formerly found the Letters orderly proceeded for the Annualrent but superceeded to give answer for the Stock till some to represent Beverly the Feear were called who now being called and not compearing he Debitor alleadged he could not be lyable to give up the Stock to the Charger being only Liferenter neither would her Discharge or Renunciation of the Wodset liberat him and his Estate but only a Renunciation of the Heir neither did the Charge at the Liferenters Instance take away the Annualrent and make the principal sum moveable unless it had been at the Feears Instance The Charger answered that she being Conjunct-feear was not a naked Liferenter albeit it resolved in a Liferent and therefore she craved that it should be declared by the Lords that she had power to uplift the Stock and to reimploy it as formerly and that her Discharge and Renunciation should be declared to be sufficient to liberat the Debitor and his Lands which being so found by the Lords The Debitor's appearing Heir being called would be an irreduceable and sufficient ground of Liberation The Lords declared as aforesaid but before Extract ordained the Conjunct-feear to give Bond for Reimployment of the sum to her self in Liferent and to Beverly's Heirs in Fee which Bond they ornained to be presently Registrat and kept by the Clerk in respect none appeared for the Heir Lady Milntoun contra Laird of Milntoun Iuly 26. 1662. LAdy Milntoun pursues probation of the Tenor of a Bond of Interdiction granted by her Husband young Calderwood Interdicting himself to her It was alleadged no Process because there was no sufficient Adminicles in Writ produced there being no Writ relative to the Interdiction Subscribed by the Party but only the Extract of Letters of Inhibition The Lords sustained this as a sufficient Adminicle in respect the question was not about a Writ that use to be retired such as Bonds In this Case also the Lords examined some Witnesses ex officio before Litiscontestation being old and valitudinary Margaret Robertson contra William Mcintosh Eodem die MArgaret Robertson pursues an Ejection against William Mcintosh who alleadged absolvitor because he offered him to prove that he had warned the Defenders umquhile Husband and that he dying shortly thereafter he inquired of his Wife if she would continue in the Possession and she declared she would not but willingly removed It was Replyed Relevat scripto vel juramento but witnesses cannot be received to prove willingness of Removing being mentis The Lords considering that the Defender alleadged no Tack nor Title in Writ but meer Possession were inclinable to sustain the Defense probable pro ut de jure but withall considering the Parties were Highlanders and had great advantage whoever had the benefite of probation therefore they ordained the Pursuer to condescend what Deeds of violence was done in ejecting her and both parties to conscend what persons were present at the Pursuers outgoing and the Defenders incoming being resolved to examine all these before answer so that there might be no advantage in probation to either party Sir John Aiton contra Adam Wat. Eodem die ADam Wat being first Infeft in an Annualrent out of Whitlands Estate Compryzed for some of the bygone Annualrents Sir Iohn Aiton being infeft after him in an Annualrent of the same Lands alleadges that Adam hinders him to uplift the Duties or poynd the Ground for his Annualrent and yet lets them ly in the common Debtor or Tennents hands until his Appryzing expire and therefore alleadges that Adam Wat ought either to Intromit and do exact Diligence and impute the same in his Compryzing or suffer Sir Iohn to do Diligence or at least that both may do Diligence effeiring to their Sums The Lords found that Adam Wat ought to be lyable for Diligence in time coming in uplifting the Rents to satisfie his Appryzing and as to the Annualrent found that after 40 days after each Term in which Adam as the first Annualrenter might poynd the Ground it should be leisom for Sir Iohn as the second Annualrenter to poynd the same without respect to Adam Wats prior Infeftment if he did not Diligence thereon within 40 days after ilk Term. Alexander Hamiltoun contra Thomas Harper Iuly 29. 1662. ALexander Hamiltoun pursues a Removing against Thomas Harper who alleadged Absolvitor because the Pursuer invaded and beat the Defender in the Session-house during the Dependence of this Cause and therefore by the Act of Parliament 1584. cap. 219. renewed 1592. cap. 173. The Pursuer cadit causa and the Defender must be Assoilzied The Lords having considered the saids Acts of Parliament and finding thereby that the Invasion must be Cognosced in a Criminal Process competent to the Justice and must be found summarly by an Inquest The Question was whether beating without effusion of Blood was such a Criminal Fact because it seems to be but a Ryot and next whether the Lords would take probation of it themselves or if it behoved to be Recognosced by the Justices The Lords found the Defense Relevant For the Act of Parliament anent violence in the Kings presence or in the Session House when the Session is sitting make such deads to incur death and therefore whether they would assign a Term to the Defender to prove that in the mean time he might proceed Criminally before the Iustice and instruct the Defense by the Sentence of the Iustice or whether they would receive the Probation themselves they resolved to hear the Pâ—rties upon it Laird Balnagoun contra Iuly 30. 1662. THe Laird of Balnaggoun having obtained a Gift of ultmus haeres of Thomas from the Exchequer in Anno 1661. and being thereupon Infeft pursues Removing against Rorie The Defender alleadged absolvitor because the Defender stands Infeft and by vertue of his
Infeftment in Possession 7. years before the warning by vertue of a Gift of ultimus haeres granted by the English Exchequer The Pursuer answered ought to be Repelled because the foresaid Gift is null ipso jure in so far as it is not confirmed by the late Act of Parliament anent judicial proceedings in the Usurpers time wherein Gifts of Bastardy and ultimus haeres were excepted The Defendet answered 1. That his Infeftment being cled with 7. years Possession cannot be taken away by exception neither is he oblieged in hoc judicio possessorio to Dispute the validity thereof 2ly The said Act of Parliament doth not declare it null much less null by Exception such Gifts but doth only not confirm them The Lords Repelled this Defense and found the Infeftment null in it self seing it was not confirmed The Defender further alleadged absolvitor from this warning because the Pursuers Gift is not yet decalred It was answered for the Pursuer no necessity of Declarator because it cannot be ever made appear that any such thing was required or was in Custom and Use more then in the case of a Gift of Ward or a Gift of Forefaultry The Lords found that this Gift behoved to be declared in the same way as a gift of Bastardry William Zeoman contra Mr Patrick Oliphant WIlliam Zeoman as having Right by an Appryzing to the Lands of Newton pursues Mr. Patrick Oliphant to hear and see it found and declared this his Appryzing was satisfied by Intromission with the Mails and Duties within the Legal The Defender alleadged Appryzing cannot be satisfied by his Intromission because any Intromission he had was by vertue of other Rights viz. Mr. Iames Oliphant the common Author having killed his own Mother and thereupon he being declared Fugitive not only upon the Paricide but upon a Criminal Dittie againstâ— him upon committing Murder under Trust which is Treason The Defender obtained Gift of his Forefaultry and thereupon stands Infeft and in Possession The Pursuer answered non Relevat 〈◊〉 Because the Act of Parliament against Paricide doth not declare it to infer Forefaultry but only that the committer thereof should be excluded from Succession and as to the committing of Slaughter under Trust the Act of Parliament expresseth what it meaned by Trust viz. though getting assurance from persons that had been formerly in variance 2ly vvhat ever the cause were yet the Infeftment upon the gift of Forefaultry cannot be respectedâ— unless there had been a Doom of Forefaultry pronunced for all that the Justice General does is to charge the party accused to find Caution to underly the Law and if he appear not he is Denunced Rebel and his Escheat only falls or if having found Caution he appear not in causa he is Denunced Fugitive which hath the same effect but none of them can inter Forfaulture unless Doom of Forfaulture had been pronounced which the Justice doth not but when the Defender compears albeit the Parliament Forefaults persons absent having taken probation of the Libel contra absentes and unless the Justice had either cited the party with Letters of Treason under certification of Treason and that certification had been granted or had cognosced the Crime The Defender being present the Gift of Forfaulture can work nothing The Lords found the Reply Relevant unless the Defender would alleadge as aforesaid because the Defender was not clear in the matter of Fact they before answer Ordained him to produce the Gift and Warrands Creditors of Andrew Bryson contra his Son November 14. 1662. IN an Accompt and Reckoning betwixt the Creditors and Bairns of umquhil Andrew Bryson the Auditor being warranted to call all Parties havers of the said umquhil Andrew his Compt Books before him his Son Mr. Andrew being Called and Examined upon Oath Depones that he neither has them nor had them since the intenting of the Cause but refused to Depone upon his having of the same at any time before or upon his knowledge who had them The Lords having heard the Auditors Report thereanent found that he ought not to be examined upon his knowledge who had them but that he ought to Deponeâ—f at any time before the Citation he had the same and frandfully put the same away quia propossessoria habetur qui dolo possidere Mr. Thomas Nicolson contra Lairds of Bightie and Babirnie Eodem die THere having been mutual Molestations betwixt Mr. Thomas Nicolson Advocat and the Lairds of Bightie and Babirnie anent a common Pasturage in the Muire of Bighty lying contigue to all their Lands It was alleadged for Babirny that he ought to be preferred to Mr. Thomas Nicolson and the said Mr. Thomas excluded from all Commonty because Babirny stands Infeft in the Lands of Babirny which infeftment bears with common Pasturage in the Muir of Bighty and Mr. Thomas had no express Infeftment therein It was answered for Mr. Thomas that the alleadgence is not Relevant to exclude him because he his Predecessors and Authors are and have been Infeft in his Lands cum communi pastura and by vertue of the saids Infeftments in peaceable Possession Immemorially or by the space of 40 Years which was sufficient to establish the Right of Communitie with Balbirnie notwithstanding his Infeftment bears express It was answered for Balbirnie that not only was his Infeftment more express but Mr. Thomas Lands and his were holden of divers Superiours viz. Balbirnie of the KING and Mr. Thomas were Kirk-lands and albeit the Muire lyes contigue to Mr. Thomas Lands yet it is not of the same Paroch The Lords repelled the Reasons of Preference for Balbirnie in respect of the Answer It was further alleadged for Balbirnie that the Alleadgeances and Answers for Mr. Thomas Nicolson ought to be repelled because he offers him to prove that Nicolson was interrupted since the Year 1610. and condescended by yearly turning his Cattel off the ground and stopping him from casting Peits and therefore he must say 40 Years Possession by vertue of an Infeftment preceeding that Interruption It was answered for Nicolson non relevat unlesse either a Legal Interruption by Lawborres or Summons or at least a compleat and full Interruptio facti by debarring him on whole year from any deed of Community but for turning off his Goods which were presently put on again and he enjoying all his Profit such were Attempts and Incompleat Interruptions whereof he needed take no notice thereof seing he continued his Possession otherwayes there would be great inconveniences by such Interruptions which would be noticed by the Leidges and yet would cut off the Probation of the old Possession before the same The Lords found that whatsoever the Interruption 40 Years or immemoria possessione before the Interruption behoved to be proven for they thought that what Servituds were introduced only by Possession by the patience and presumed will of the other Partie being either Proprietar or having right of Communitie any Interruption was sufficient to show that the other
would exclude none of the Casualities of the Superiority yet such Alienations exceeding the half of the Fee do unquestionably infer Recognition though the ingratitude be no more then this that the Vassal renders himself unable fitly to serve his Superior by delapidating his Fee or the Major part thereof how much more when he does all that in him is to withdraw himself from the Superiors Clientel by obtruding to him a Stranger alienating from him the whole Fee and albeit the Seasine be null as to other effects till it be Confirmed Yet as Craig observes in the foresaid place Vassalus fecit quantum in se erat 2ly Though by our Statute or peculiar Custom such Seasins unconfirmed are null yet by the Act of Parliament 1633. Anent Ward holdings Recognition is declared to proceed according to common Law which can be no other then the common Feudal Customs by which Customs it is sure that the Recognition is chiefly inferred by the Vassals alienation As to the implyed condition si Dominus consenserit though that were expresse yet the Vassal giving Seasine the Tradition of Seasine is inconsistant with such a condition being understood as a Suspensive condition for he that delivers Possession de facto cannot be said upon any condition not to deliver the same de facto and therefore it is but protestalio contraria facto and if it be understood as a resolutive condition as needs it must it impedes not the Alienation but only might resolve the same As to the Decision upon the not Registration of the Seasine una herundo non facit ver and albeit it might be a rule in that individual Case It cannot be extended ad alios casus although it were a Statute much lesse a Practick The Lords also repelled this Defense 4ly It was further alleadged by the Defender that Dirletouns Infeftment was granted by the KING Haeredibus assignatis quibuscunque and thereby the KING consented that he should dispone his Right to any Assigney or singular Successor and this Clause is equivalent to the ordinar Feudal Clauses Vassallo quibus dederit which is ever understood to exclude Recognition neither can this be understood to be stilus curiae as when Assigneys are casten in in Charters passing the Exchequer but this is an original Grant under the KINGS own Hand The Pursuer answered that this Defense ought to be Repelled because such Concessions contrair to common course of Law are stricti juris and not to be extended ad effectus non expressos praesertim prohibitos but the adjection of Assigneys is no ways to allow Alienations of the Fee without consent but to this effect because Feuda and Benficia are in themselves stricti juris and belong not to Assigneys unlesse Assigneys be expressed and therefore albeit no Infeftment had been taken the Disposition Charter or Precept could not be Assigned so that this is adjected to the end that those may be Assigned before Infeftment but after Infeftment Assignation hath no effect and this is the true intent of Assigneys In Dispsitions of Land it is clear when the Disponer is obliged to Infeft the Acquirer his Heirs and Assigneys whatsoever there is no ground whereon to compel him to grant a second Infeftment to a new Assigney but only to grant the first Infeftment to that Person himself or to any Assigney whatever which clears the Sense in this case It hath also this further effect that singular Successors thereby might have right to a part of the Lands which though it would not infer Recognition if done yet if there were no mention of Assigneys it would be null and as not done in the same Case as a Tack not mentioning Assigneys The Lords Repelled this also 5ly It was further alleadged that Recognition takes only place where there is contempt and ingratitude and so no Deed done through ignorance infers it as when it is dubious whether the Holding be Ward or not and therefore Recognition cannot be inferred seing there is so much ground here to doubt this Right being a taxed Ward and to his Heirs and Assigneys and it is not clear whether it would be incurred through a Seasine à se or to one in his Family whereupon the wisest of men might doubt much more Dirletoun being illiterate not able to read or write It was answered ignorantia juris neminem excusat 2ly Vbi est copia peritorum ignorantia est supina Here Dirletoun did this Deed clandistenly without consulting his ordinar Advocats or any Lawyers and so was inexcusable and if pretence of ignorance could suffice there could be no Recognition seing it cannot misse to be ignorance that any should do that Deed that will be ineffectual and losse their Right The Lords Repelled this Defense and all the Defenses joyntly and Decerned Lord Loure contra Earl of Dundee February 6. 1663. THe Lord Loure pursues a Reduction of a Disposition made by Carnegy of Craig to the Earl of Dundee as being posterior to the Pursuers Debts and in prejudice thereof upon the Act of Parliament 1621. against Bankrupts and for instructing of the Reason repeats the Disposition it self being betwixt confident Persons Cusing Germans and without cause onerous in so far as it bears Reservation of the Disponers and his Ladyes Liferent and Provision to be null if Craig have Heirs of his Body in whose favours Dundee is to denude himself upon payment of his expense The Defender alleadged that the Lybel is not Relevant Primâ— because Craig is no Bankrupt nor any Diligence done against him before the Disposition 2ly He is not insolvent by the Disposition because there is reserved to him a Power to sell as much of the Land as is worth 80000 lib. for Debt and so is not in fraâ—dm creaâ— oruâ— but the Pursuer ought to pursue for that Provision either by Appryzing or personal Action The Lords found the Reason relevant and proven by the tenor of the Disposition and therefore reduced to the effect that the Pursuer mâ—ght affect the saids Lands with all Legal Diligence for his Debt as if the Disposition had not been granted for they thought seeing by this Disposition there remains not Estaâ—e sufficient ad paratam executionem and that there was no Reason to put the Pursuer to insist in that Clause to restrict himself thereby to a part of the Land but that he ought to have preference for his Debt upon his Diligence affecting the whole Land William Montgomery contra Theoder Montgomery and Mr. William Lauder February 10. 1663. WIlliam Montgomery as Donatar to the Liferent-escheat of Theodor Montgomery pursues a special Declarator against the Tennents of Whit slide belonging to Margaret Hunter in Liferent and now to Theodor jure 〈◊〉 for their Duties It was alleadged that the Horning was null because the Dâ—bt was satisfied before Denunciation The Pursuer answered that it was not competent in the special Declarator to question the nullity of the Horning 2ly Though it were in a
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
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
Poynding against the Pursuer and the Bairns but in regard of so much ground in the matter they declared they would not sustain the Passive Title to make him Successor universal but only as to the just Price and the Cause Onerous Grahame of Blackwood contra Brouns Ianuary 7. 1665. JOhn and William Brouns having Appryzed certain Lands and William Grahame having Appryzed the same within a year after pursues an Accompt and Reckoning against the first Appryzer upon the last Act of Parliament betwixt Debitor and Creditor and craves to come in pari passu with the first Appryzer not only as to there Mails and Duties of the Lands Intrometted with by the Appryzer since the said Act of Parliament but also for these Duties that were Intrometted with before the said Act and that because the Act bears expresly That such Appryzing shall come in pari passu as if there had been one Appryzing led for both It was answered for the first Appryzer that what he did uplift bona fide before any Process intented against him at this Pursuers instance he cannot pay back a part thereof to the Pursuer because he is bona fide Possessor and because the Act of Parliament bears That such Appryzings shall come in pari passu which being in the future must be understood to be from their intenting of Process at least from the date of the Act but not from the beginning The Lords having considered the Tenor of the Act of Parliament found that such Appryzings should only come in pari passu from the date of the Act but that the bygones uplifted by the first Appryzer before the Act should be accompted to him in his Sum but no part thereof repeited to the second Appryzer and found that the Sums Appryzed for Principal and Annualrent of both Parties should be restricted as they were the time of the Act of Parliament in one total Sum and the Rent to be received from that time proportionally to the total Sums and that the first Appryzer should have allowance in his preceeding Intromission of the expenses of the composition to the Superiour and the charges of the Appryzing without compelling the second Appryzer to pay him the same Normand Lesly contra Gilbert Gray Ianuary 10. 1665. NOrmand Lesly charges Gilbert Gray Provost in Aberdeen to pay 2000 merk for which he was Cautioner for William Gray He Suspends and alleadges that the Charger had gotten an Assignation from the said William Gray to an Bond granted by the Earl of Errol to him and therefore craved that the Charger might be decerned to transfer that Assignation to him being given for the security of the same Sum. It was answered that the Charger was only oblidged to give a discharge to his Cautioner and not an Assignation of the Bond it self and much less of any security ex post facto he had gotten therefore The Lords declared they would not give the Charger Process till he Assigned the Bond and all security gotten therefore to the Cautioner William Reid contra John Reid Eodem die WIlliam Reid pursues Iohn Reid as his Tutor to deliver all Writs belonging to the Pupils Father or which were in his Custody and Possession quovis modo Intrometted with by the Tutor Who alleadged the Pupil could have no interest in any Writs but these which belonged to his Father The Lords found that Pupil had interest to call for Exhibition and Delivery of all Writs that were in his Fathers Possession quovis modo and ordained the Tutor to exhibit all but prejudice to any Partie having interest to crave the delivery of these Writs if they belonged to them Campbel contra Mary Bryson Eodem die GEorge Campbel having right by Adjudication to the Reversion of a Wodset of some of the Lands of Newlistoun Wodset by the Laird of Newlistoun to Andrew Bryson Baillie of Edinburgh whereupon he was publickly Infeft and thereafter did dispone the same to his Daughter Marry Bryson and she was Infeft holden of her Father which Disposition contained a power to the Father to dispone on the Sum in the Wodset Right during his Lifetime without her Consent after all Andrew Bryson obtained a Confirmation of the foresaid Wodset with Addition of 16. aikers of Land more for the same Sum which was conceived in favours of himself and the Heirs of the Marriage whereupon he was Infeft The said George having used an Order of Redemption craved Declarator Compearance is made for the said Mary who craved the said Sum to be delivered up to her It was alleadged by the Pursuer that she could not have up the Sum unless she were Infeft as Heir to her Father both in the first and last Wodset and resigned the same and so liberat the Land of the Burthen thereof for albeit she was Infeft proprio nomine yet it was but base holden of her Father so that the Superiority remained with her Father and she behoved to be Infeft as Heir to him and renunce the same 2. The Corroborative Wodset stood in her Fathers Person who by her Disposition had a Power to dispose of the first Wodset and so had altered the Fee thereof to himself and his Heirs It was answered that the second Wodset was taken when Maries mother was dead and she the only child of that Marriage and so was alike as if her name had been expressed 2. The Declarator it self will sufficiently secure the Redeemer albeit there were no Resignation 3dly The second Wodset is but accessory to the first so that the said Mary having power to renunce the first Wodset proprio nomine the second may be declared to be extinct in consequence and further offered Caution if need were to warrand the Redeemer The Lords found the Lands to be Redeemed but ordained the Money not to be given up untill the said Mary had Infeft her self as Heir to her Father and Resigned for they thought the Redeemer ought to put upon no hazard of repetition or of the danger of the Infeftment unrenunced seing it was the ordinar Course to be Infeft and to renunce Magaret Arnot contra Mr. Robert Arnot Ianuary 11. 1665. MArgaret Arnot pursues a Reduction of a Decreet of Exoneration obtained by William Arnot her Uncle and Executor to her Father It was alleadged for Mr. Robert Arnot Son and Successor to the said William that all Parties having Interest were not called viz The Creditors and Legatars who were concerned in the event of the Reduction for if there Sums and Discharges were not allowed according to the Exoneration The Defender behoved to return upon them for payment and therefore they ought to be called to defend their Interest The Lords repelled the Defense and found no necessity to call the Creditors and Legatars but that the Defender might intimat the Plea to them Neilson and Calender contra Ianuary 12. 1665. NEilson and Lodovick Calender her Spouse pursue a Transferrence of an old Summons on which there was an Inhibition used It
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
being for nineteen years without consent of the Patron The Defender answered that albeit both Parties were in acquirenda possessione yet decimae debentur Parocho ejusque praesumuntur nisi aliter appareat and therefore unless these Teinds have been Transmitted from the Parson of the Paroch by long Possession or Mortification they are his and the Kings Gift alone cannot take them from his but here the Parson has been in Possession by Setting the Tack produced which is sufficient as to Possession albeit it were null by Exception as it is not and the nullity thereof is only competent to the Person of the granter and not to this Pursuer The Lords found the Kings Gift and Decreet conform with Institution and Collation was not sufficient unless either the Mortification of these Teinds or the Prebenders Possession were instructed Mr. Walter Caut contra Iames Loch Eodem die MR Walter Caut having pursued Iames Loch and his Mother as Tutrix for her Interest for the Mails and Duties of some Appryzed Lands and the quantities being referred to the Tutrix Oath she refused to Depone alleadging that she had forgotten the quantities whereupon the Pursuer craved her to be holden as confest upon the Rental given in by him as if she had acknowledged the same The Lords found she could not be holden as confest being not the Party but Tutrix but they found that she might be forced to Depone by Horning and Caption as other Witnesses Alexander Monteith contra Anderson Iune 28. 1665. THere being mutual Reductions betwixt Monteith and Anderson the former having Right to an Appryzing led in Anno 1619. and the other Mr. Iohn Anderson having adjudged in Anno 1656. Mr. Iohn Anderson insisted on this Reason that Monteiths Apprizing proceeded was on a Sum of 5000. Merks due by Iames Nisbet the common debitor to Gilbert Gourlay after that Iames was Rebel at Mr. Iohn Andersons authors Instance after which no Bond granted could prejudge the other Creditor having used Diligence before but the Bond is null by the Act of Parliament 1621. against Bankrupts It was answered for Monteith that that Act was only against Fraudulent Dispositions between confident Persons without Cause onerousâ— but here a Bond of borrowed Money was onerous and no man was thereby hindered to borrow Money Anderson answered that the Narrative of the Rebells Bond bearing borrowed Money could not instruct against a Creditor using prior Diligence This the Lords Repelled Anderson insisted upon this Reason that Gourleys Bond was granted by Iames Nisbet Iames and William Arnolds all Conjunct Principals without a Clause of Relief and this Bond was assigned by Gourley with this express Provision that no Execution should proceed thereupon or upon the Bond or Inhibition against the Arnolds and so if the Assigney had been pursuing Iames Nisbit for all he might have answered that the Assigney had accepted his Assignation with this provision that Iames Nisbet could not use Execution against the other two Co-principals and therefore he being excluded from his Relief could be only lyable for his third part for he would not have subscribed the Bond but upon consideration of his Relief Monteith answered that all the three principals being bound conjunctly and severally the Creditor might renounce all Execution against two of them and yet crave the whole from the third and there was no more done in this case and albeit there be no Clause of mutual relief exprest yet hoc in est de natura rei So that albeit Nisbet by vertue of the Assignation thought it had been transferred to him could not have pursued the two Arnots yet by the obliegement of mutual Relief implyed he might not as Assigney but as coreus debendi Anderson answered that if the Clause had born only a Provision that no execution should pass upon the Assignation it might have been consistant but it bears that no Execution should pass upon the Assignation or Bond. The Lords found that the Obliegement of mutual Relief was implyed where parties were bound conjunctly and severally albeit not exprest and that the Provision related only to the Bond quantum ad creditorum and did not restrict the implyed obliegement of the Co-principal and therefore repelled this Reason also Robert Keill contra Iohn Seaton Iune 28. 1665. GEorge Seaton as principal and the said Iohn Seaton his Cautioner having granted Bond to Robert Keill and being Charged thereupon both did suspend and having alleadged payment they succumbed and were Decerned Iohn Suspends again and raises Reduction upon minority and lesion The Charger answered First That this Reason was competent and omitted in the former Decreet 2ly That proponing payment did homologat the Debt as if an Heir proponed payment he would not be admitted fo renounce thereafter or to deny the passive Title The Suspender answered that the former Process being in a Suspension nothing was competent but what was instantly verified and so minority and laesion was not competent The Charger answered that the Decreet of Registration was turned in a Libel as being Registrat at the Assigneys Instance not having Intimat during the Cedents Life and at that time the Suspender had raised his Reduction and so it was competent The Suspender answered that he was not oblieged to insist in his Reduction and that the reasons thereof were not proper even in an ordinary Action but only by a Reduction It was furder alleadged that competent and omitted took no place in Suspensions The Lords had no regard to the last alleadgence but repelled the alleadgence upon homologation and upon competent and omitted in respect that minority and laesion is neither competent by way of Suspension or exception but by way of Action of Reduction wherein the Suspender was not oblieged to insist Iames Pitcairn contra Isobel Edgar Iune 28. 1665. UMquhil David Edgar by his Contract of Marriage provided 4000. merks to be payed by him and his Heir of the first Marriage which failling any other his Heirs to the Bairns of the second Marriage The portion of the Daughters payable at their age of 18. and the Sons at 21. with five merks yearly of annualrent after his death for the Childrens subsistence Isobel one of the Children having married after her Fathers death Iames Pitcairn her Husbands Creditor pursues for the sum as belonging to the Husband jure mariti It was answered that the sum was Heretable bearing Annualrent and the Term of payment of the Annualrent was come before the marriage and therefore it did not belong to the Husband jure mariti It was answered that it was not properly an Annualrent but an aliment of five percent and that the Term of payment of the Annualrent was after the Act of Parliament 1641. declaring such Bonds moveable and albeit the Fisk and Relict be there excluded yet the jus mariti is not but is only added by the Act 1661. The Lords found that seing this Provision bear Annualrent whether more or less and that the marriage was
Cautioner who were free to have pursued for the Tochar and did not and after 40. years she cannot be put to instruct that the Tochar was payed albeit she had been Debitor therefore her self much more when another is Debitor The Lords found both these replyes relevant Mr. John Colvil contra The Lord Balmirino Iuly 6. 1665. MR. Iohn Colvil as Executor confirmed to Umquhil Mr. Iohn Colvil Minister at Kirknewtoun pursues the Lord Balmirino for the Stipend the year 1663. and for the profit of the Gleib The Defender alleadged absolvitor because payment is made bona fide to the intrant before intenting of this Cause It was answered it could not be payed bona fide because the Minister died after Ianuary 1663. VVhich being so notour to my Lord Balmirino to whom the most of the Paroch belongs and he being so near it he ought to have made payment to no other of that year which belonged to the Defunct Minister as his Ann extending to the whole years quia annus inchoatus habeâ—ur pro completo as to the Ann so that if the Minister lived till the first of Ianuary he has that whole year The Defender answered that an Ann is only due to the VVife and Bairns of the Defunct Minister and this Minister had none 2ly That the point is so dubious in Law he knew not that it would be his unless he had lived till Whitsunday 3ly The benefit of the Gleib must be the intrants and falls not under the Ann as a part of the Stipend no more then the Manss The Lords repelled the Defense as to the Stipend and found it belonged to the Executor as nearest of kin and that the Defunct surviving the first of January gave him that whole year but found that the Gleib did not fall under the Ann nor did belong to the Defunct but only the Crop thereof if it were sowen by himself before he dyed Earl of Argyl contra Mcdougalls of Dumolich and Ziner Iuly 14. 1665. THe Earl of Argyl having raised a double poynding in name of the Tennents of certain Lands calling himself on the one part and Mcdougals on the other as both claming right to the Mails and Duties Mcdougals produce a Decreet of Parliament whereby they having pursued the late Marquess of Argyl alleadging that he had obtained the Right and Possession of these by Force and Oppression during the troubles whereupon his Rights were reduced and they restored to their Possession The Earl of Argyl produced his Seasine upon the Kings Gift with two Dispositions of these Lands granted to his Father one in Anno 1632. and another in Anno 1639. And thereupon craved to be preferred Mcdougals produced a disclamation of the Process in name of the Tennents and alleadged no Process because the Tennents who were pursuers past from the pursute It was answered that their names was but used that the Parties might discusse their Rights and so they could not disclame it being ordinar to use Tennents names in double poyndings It was answered that there was no Reason that Tennants should be forced to make use of their names to intervert their Masters Possession The Lords found that the Tennants could not disclame especially the possession being but late by Decreet of Parliament and was contraverse It was further alleadged for Mcdougals that there was nothing particularly lybelled as Rents due by the Tennants and therefore there could be no sentence The Lords repelled the alleadgeance and found the Sentence might be in general to be answered of the Mails and Duties as is ordinar in Decreets conform It was further alleadged for Mcdougals that seing this double poynding was in effect now used as a Declarator of Right no Process thereupon because in all Declarators Law allows the Defenders 21 days upon the first Summons and six on the next that they may prepare and produce their Rights and here there is but one Summons on 6 days 2ly No Process because Mcdougals being founded upon a Decreet of Parliament my Lord Argyl produces no Title but only a Seasine not expressing these Lands 3ly Decreets especially of Parliament cannot be taken away but by Reduction and not thus summarly It was answered that my Lord Argyl insisted here for taking away the pretended Decreet in Parliament and restoring the King and Donatar to the possession of the Lands so that in effect it is not so much a Declarator of a Right as a possessory Judgement And as for the Title it is sufficient to produce a Siasine seing in the Decreet of Parliament My Lord Argyls Right and possession is quarrelled as wrong and therefore was acknowledged to have been and seing Mcdougals produces no other Right and the King's Advocat concurres and if need beis my Lord Argyl offers to prove the Lands in question are parts and pertinents of the Lordship of Lorn exprest in his Seasine and albeit this be pretended to be a Decreet of Parliament yet by Sentence of Parliament since it is remitted to the Lords and is in it self visibly null as having been intented against my Lord Argyl and pronounced after his death and Forefaulture without calling the Kings Officers The Lords repelled these Defenses in respect of the replyes James Mathison contra Harie Gib Eodem die JAmes Mathison having obtained a Decreet before the Commissars of Edinburgh against Gib he Suspends and alleadges it was not a cause consistorial being a bargain of Victual and that it was not probable any other ways but by his Oath now after 12. or 13. years In respect of the Act of Parliament anent house Mails and others which comprehens this case The Lords repelled the alleadgeance and found that bargain of Victual not comprehended under that Act of Parliâ—ment James Borthwick contra Janet Skeen Iuly 15. 1665. JAmes Borthwick being Infeft in the Lands of Oversneip pursues Reduction and Removing against Ianet Skeen the Liferentrix It was alleadged that the Feer being minor non tenetur placitare super haereditate paterna And for the Liferenter that the minor was oblidged to warrand her Liferent-right and her Possession was the minors Possession so that if her Right were reduced and she removed the priviledge of the minor were altogether overthrown It was answered That the priviledge was personal and stricti juris and was to be extended to Majors and as for the warrandice it was never sustained as a ground to exclude a Reduction because warrandice would be inferred against a Minor which is but a personal obligement and not haereditas The Lords repelled the alleadgance for the Liferenter Who alleadged further that her Right being Reduced the Fee was absolute in the person of the Minor who would not suffer the Liferentrix to be removed but she did possesse by the Minors tollerance It was answered that the Pursuers Reduction behoved to accresce to him and his Right and not to the Minors Right that he behoved to enter to the Liferenters possession which would not prejudge the Minor for if
Eodem die JOhnstoun having Appryzed the Lands of Achincorse and charged the Lord Dumfries his Superiour to receive him pursues the Tennents thereof for Mails and Duties Compearance is made for the Lord Dumfries Superiour who alleadged no Process till a years Rent were payed to him as Superiour 2ly It is offered to be proven that Achincorse the Vassal was in nonentrie or the Liferent Escheat fallen by his Rebellion and therefore the Superiour ought to be preferred The Pursuer answered to the first that seing it was the Superiours fault he received not him upon the charge albeit he offered to receive him now he could not have a years Rent till the Pursuer insisted to be infeft To the second the Defense ought to be Repelled seing there was no Declarator intentit The Defender answered that seing he was to change his Vassal and the Appryzer sought possession before he had access he behoved to pay the years Rent seing by the Appryzing and the charge the Superiour will be excluded from his Casualities To the second the Superiour being acknowledged by the charge he might crave the Casualities of the Superiority by way of competition and offered to produce the Horning cum processu The Lords sustained the first Defense but not the second seing there was no Horning produced nor Declarator intentit Janet Brotherstones contra Ogil and Orrocks Iuly 26. 1665. JAnet Brotherstones by her Contract of Marriage declaring that she had in Money Bonds and Goods 4000 merks is provided to all the conquest and to the Liferent of the whole Means and Moveables she pursues her Husbands Heirs for implement who alleadged absolvitor because she has not fulfilled her part of the Contract and instructs not that she delivered to her Husband 4000. merks in worth or wair It was answered it must be presumed that she has done it after so long time seing all she had came in the Possession of her Husband The Lords found the presumption not sufficient but before answer ordained the pursuer to condescend by Witnesses or otherwise how she would prove that she had that means the time of the Marriage and ordained these to be examined ex officio Thomas Kennedie of Kirkhill contra Agnew of Lochnaw Iuly 27. 1665. KEnnedie of Kirkhill as Assigney by Thomas Hay of Park to a Bond of 1000 lib. granted by Andrew Agnew younger of Lochnaw charges him thereupon who Suspends and raises Reduction on this Reason that the Bond was granted at the time of his Contract of Marriage clandestinelie without the knowledge of his Father who was Contracter contra pacta dotalia contra bonos more 's The Defender answered that he having given a very great Tochar viz. 10000. lib. above his Estate which is all payed to his Good Sons Father he did declare that he was not able to give so much and thereupon he got this Bond not to have Execution till after his death which he might lawfully do having given a Tochar suitable to the condition of the Receiver and above the condition of the Giver The Lords repelled the Reason in respect of the Answer This was thereafter stopt to be further heard Lilias Hamiltoun contra Her Tennents Eodem die LIlias Hamiltoun being Infeft by her Husband in Liferent pursues her Tennents compearance is made for their present Master who alleadged that her Husbands Right was only a Wodset granted by him and that he had used an Order and had Redeemed the Wodset and payed the money to the Pursuers Husband and neither knew nor was oblidged to know the Pursuers base Infeftment from her Husband the Wodsetter which had never any other Possession but the Husbands It was answered that the Pursuers Seasine being Registrate he was oblidged to know the same as well as if it had been an Inhibition especially seing there was no Process of Declarator in which case all Parties having intress should have been called at the Mercat Cross but a voluntar Redemption albeit upon an Order The Lords sustained the Defense notwithstanding of the Reply Adam Rae contra Heretors of Clackmannan Eodem die UMquhile Colonel Rae having advanced Victual to the Armie at Leith in Anno 1650. And gotten an Assignation to the Maintenance of August and September from Sir Iohn Smith then General Commissar in satisfaction thereof pursues the Heretors of Clackmannan for their proportions who alleadged that by their quartering of the Kings Armie their whole Rents Anno 1650. was exhausted It was answered that it was not our that the exhausting was after the Battel of Dumbar which was upon the third of September 1650. And so could not extend to the maintenance of August and September which was Assigned before for so onerous a cause The Lords repelled the Defense in respect of the Reply Captain Muire contra Frazer Iuly 27. 1665. CAptain Muir having obtained Decreet against the Heir of Colonel Hugh Frazer for 1000 merks before the Commissioners in Anno 1658. Charges thereupon They Suspend and raise Reduction on this Reason that the Decreet was null without probation proceeding only upon a Copy of an obligation alleadged taken out of the Register by one William Baily who keeped the same at London which could not prove not being under the hand of the Clerk Register or his Deputes which being proponed in the Decreet was unjustly repelled The Pursuer answered First There was no review raised within a year conform to the Act of Parliament and so the Decreet was not quarrellable upon iniquity 2ly Bailies Oath was taken by Commission that the Extract was subscribed by him 3ly The Defender proponed a Defense of payment and so acknowledged the Debt Debt It was answered that the Suspenders were and are minors and in the Act of Parliament there is an exception of Minors that they may Reduce these Decreets within a year after their Majority 2ly They ought to be reponed against their proponing of payment being Minors and as to Bailies Oath neither his Subscription nor Oath can make a probative Extract unless the new Extract were now produced seing the Registers are returned The Chargers answered that if the Suspender would alleadge that any Book of the Register containing Writs Registrat about the time of this Extract were extant and returned relevat but it is known that several of the Books are lost and this amongst the rest The Lords would not sustain the Decreet upon Bailies extract simplie neither did they put the Charger to the proving of a tenor but allowed the charger to condescend upon the way of his Instruction that such a Bond was truly subscribed by the Witnesses insent or otherwayes and ordained the Witnesses to be examined Adam Rae contra Heritors of Clackmannan Iuly 28. 1665. IN the Cause of Adam Rae mentioned yesterday some of the Heretors alleadged absolvitor because they were singular Successors and by the Act of Parliament for the Old Maintenance Singular Successors were excepted The Lords repelled this alleadgeance and found that exception only to be
offered to be proven that he broke up Iohn Ramsays Celler and took them out 3dly The Colonel Impignorat them by Writ and so the Presumption of allienating them ceased because he went immediately out of the Countrey and never returned It was answered that there is no difference of Jewels more than any other Moveables which use to passe without Writ from Jewellers that sell them and the Pursuer having possest them these 10. or 12. Years without question has right thereto by usucapion The Lords found the alleadgeances joyntly relevant to elied the presumption and that there is no usucapion in Moveables in Scotland by Possession in less then 40 years but only a presumptive Title which is altogether eleided by the Answers Duke of Hamiltoun contra Laird of Clackmanan December 14. 1665. THe Duke of Hamiltoun as Collector of the Taxations 1633. charges the Laird of Clackmannan who Suspends and produces Discharges of the first three Terms It was alleadged these discharges could not liberat because they were granted by Iohn Scobie who was neither Sheriff Baillie nor Clerk nor does it appear that he had any Warrand or Commission nor does his Discharges mention any Commission or Warrand It was answered that by the Discharges produced it appears that Ormistoun and Humbie deputed for the Duke had granted Discharges to this Iohn Scobie and offer to prove that he was in use of uplifting the Taxations during the Terms themselves and was commonly repute as Collector thereof which must be sufficient post tantum tempus It was answered that that ground would not oblidge the Sheriff and so both the Heretor and Sheriff being free the King looseth his Right Yet the Lords sustained the Reason Monteith contra Mr. John Anderson December 15. 1665. IN a Reduction at the instance of Monteith against Anderson a Reason of payment being found relevant Mr. Iohn produced an Incident at the first Terme and a Diligence against Witnesses for proving the having of the Writs at the second Term. Which Incident the Lords sustained and would not restrict the Terms of probation in the Incident to Horning against the Witnesses and Caption but allowed four Terms and ordained the same to be shorter Mr. John Elies contra Keith Eodem Die THere was a Bond of 6000 merks granted by Wiseheart Parson of Leith and Keith his Spouse to Mr. Iohn Elies containing an oblidgement to Infeft him in an Annualrent out of any of their Lands with a Procuratorie The Wife had then the Lands of Benholm belonging to her Heretablie lying in the Mairns Mr. Iohn having Inhibite her Husband and her she sold the the Lands before the Inhibition was published at the head Burgh of the Mairns and having thereafter right to a Sum of 10000 merks for which she was Infeft under Reversion in other Lands an order of Redemption was used and the Money consigned Mr. Iohn Elies pursues a Declataror to hear and see it Found and Declared that the said Keith was oblidged to infeft him in an Annualrent out of her Lands which she had fraudulently Disponed contraire her obligation and therefore was now oblidged to Infeft him in other her Lands or to pay the Sum as damnage and interest and that therefore any other Lands or Rights belonging to her might be affected for his payment and particularly the Wodset now in question Compearance was made for the Defenders Grand-child who had a Right from her Grand-mother to the Wodset who alleadged First That the Bond bearing an oblidgement for Debt granted by the Wife stante matrimonio was null It was answered that albeit the Personal oblidgment were null yet the oblidgment to Infeft in an Annualrent granted by a Wife is valid either against her Heretage or Liferent and alleadged several Dicisions therefore It was answered that the Wife might do so if she had borrowed money for her own use or were principally bound to Infeft in an Annualrent but this oblidgment being in security of her Personal obligatigation with her Husband the principal obligation being null the accessory is also null The Lords repelled the alleadgeance and found the oblidgement to Infeft valid albeit accessory because Deeds and Obligations of Wyfes not to affect their Persons but Estates are valid and albeit she had not been bound for the principal Debt she might either have effectually disponed an Annualrent or which is all one oblidged her self to Infeft in an Annualrent out of her Heretage utile per inutile non vitiatur It was further alleadged that this Wodset or Sum disponed to her Oy could not be affected because her Oy was the youngest of many Oyes and did no wayes represent her The Lords sustained this Member of the Declarator also upon the Act of Parliament 1621. against Dispositions between Conjunct Persons without a cause onerous which they found might either be a ground to reduce the same or to declare the same to be affected as if the Right were in the Disponers Person Herein it was also lybelled That this Wodset albeit acquired after the Inhibition yet seing it lay in the same Shire where the Inhibition was published the Grand-child's Right were Reduceable upon the Inhibition The Lords thought so because Inhibitions being Personal Prohibitions reach both acquisita and acquirenda by the Person Inhibit in the Shires where it is published Laird Kilbocho contra Lady Kilbocho December 20. 1665. THE Lady Kilbocho by her Contract of Marriage being provided to certain Lands with this provision further that she should have the Liferent of all Lands Conquest during the Marriage whereupon she obtained a Decreet in the English time which being now under Reduction It was alleadged the Clause of Conquest could only give her the Lands Conquest with the Burden of the Annualrent of a Sum due by the Defunct to a Person from whom he bought the Land as being a part of the Price of the Land especially seing by a writ under the Defuncts hand he acknowledged that this Bond was granted for a part of the Price It was answered First That a Personal oblidgement cannot affect the Land neither can it affect the Ladies Person but if the Defunct had pleased he might have granted an Annualrent out of the Lands Conquest which then would have affected it which not being done his declaring that this Sum was a part of the price cannot be effectual nor can infer a Probation against his Wife in prejudice of her anterior Right Secondly This alleadgeance might be proponed as well against the Heir of Conquest as Liferenter thereof and yet it was never found that the Heir of Conquest behoved to accept the Land with the Burden of the Sums borrowed to buy it nor yet to relieve the Heir of Lyne thereof but on the contrair the Heir of Conquest has relief against the Heir of Lyne for Personal Debt though borrowed for acquiring the Right The Lords found that the Case was not alike with the Heirs of Conquest whom Defuncts do Infeft without
any burden and Liferenters who having a speciall Competent Provision this general Clause being but adjected as uncertain is not so favourable or so to be extended seing the Husband did not Infeft the Wife in his own time in the Conquest And therefore found her to be lyable to the Annualrent of this Sum which they found instructed by the Hubands Declaration where the Ladies Father is a subscribing Witness Sir Rorie Mcclaud contra Walter Young and John Govane Eodem die WAlter Young Iohn Govan and Hendrie Hope by a Letter written to any that they should Buy Kows from in the Highlands desired that they might use the Bearer of the Letter kindly and for whatever quantity of Kows they bought they should answer such Bills as he should draw upon them therefore Hendrie Hope being broken Iames Gray as Assigney pursues the other two for the whole who alleadged they were only lyable for their own Parts It was answered that they were oblidged to answer such Bills as the Person intrusted by them should draw and they produce a Bill drawn by him upon them or either of them It was answered that such Bills can only relate to the Quantity and not to the Quality and manner of oblidging seing if they had so intended they would have oblidged them and either of them or it would have born what he should draw upon them or either of them should be answered The Lords found every one of them lyable in solidum for they thought that the Clause being dubious was to be interpret against the Writers and the Sellers of the Kows were bona fide to rest upon the interpretation of the Persons intrusted Sir John Leslie contra Sinclar and Dun. Ianuary 22. 1665. SIr Iohn Leslie as Assigney constitute by Sir William Dick to a Bond oblidging Francis Sinclar as Principal and young Dun as Cautioner to deliver 30 Chalders of Bear at 10 merk the Boll Dun alleadges absolvitor because he was Minor in Familia Paterna and so his Father was his Curator of Law and therefore his subscribing as Cautioner was null being without his Fathers consent It was answered the alleadgeance was not competent by exception against a clear liquid Bond. Secondly That the Defense is only competent in the Case of Curators chosen The Lords found the Defense Competent by way of Exception but before answer to the Relevancie ordained the Parties to condescend upon Duns age the time of his Subscription and whether he did then administrat or go about any other affairs Dame Rachel Burnet contra Lepers December 23. 1665. BY Contract of Marriage betwixt Mr. Iohn Leper and his Father and and Dame Rachel Burnet on the other part both Father and Son were oblidged to employ 20000 lib. upon security for the Liferent use of the said Dame Rachel who with concurse of Prestoun her present Husband pursues the Sisters of the said Mr. Iohn Leper as Heirs and otherwayes representing him and their Husbands for their entrests and likewise Doctor Balfours Wife only Daughter of an of the Sisters as Heir to her Father and Mother against whom there was Decreet of Registration obtained during their Lifetimes together and on this ground That the Defuncts Husband did by Contract of Marriage Disposition or otherwayes obtain Right to the Portion of his Wife one of the Sisters and Heirs and therefore is lyable in payment in quantum lucratus est It was alleadged for Doctor Balfour and his Wife that she was willing to renounce to be Heir to her Mother but as for the other passive Title as representing her Father who was locupleâ—ior factus it is no wayes relevant for Marriage is a cause onerous and Tochars are granted ad sustinenda onera matrimonij and therefore are never counted fraudulent deeds or without an onerous cause nor do they fall within the Act of Parliament 1621. against fraudful alienations neither was the Defenders Father lyable though there was a Decreet of Registration against him because before any Execution the Marriage was dissolved It was answered for the Pursuer that that member of the Lybel stands relevant because the Defenders Mother being Heir to her Brother the Contracter could not transmit her Estate to her Husband without the burden of her Brothers Debt and it is a most unquestionable Ground in Law and Equity quod nemo debet cum alieno damno locupletari and therefore Creditors are still preferred to Portions of Children though given for their Tochar The Lords found that Member not Relevant that Decreet was obtained against the Husband and Wife stante matrimonio seing it received not Execution and as to the other Member they thought that if there were but a moderat and ordinar Tochar proportionable to the burdens of the Marriage it would not infer Repitition or if the Tochar was great or an universal Disposition of all the Heirs Right they thought the Husband would be lyable in so far as it was above a proportionable Tochar and therefore before Answer Ordained the Contract of Marriage to be produced and the Pursuer to condescend if there was any other benefit accresced to the Husband by his Wife then by vertue of the Contract It was further alleadged for the Lady Pitmedden one of the Sisters on Life that she could only be lyable for her own sixth part as one of the six Heirs Portioners It was answered by our Law that all Heirs were lyable in solidum There was several Decisions alleadged on either hand on the 7. of February 1632. Hoom contra Hoom Where the Lords found the Heirs Portioners lyable but for their own share Another February 15. and March 21. 1634. Watson contra Or Whereby one of the Daughters having a Disposition of the whole Estate was found lyable for the whole Debt And another Ianuary 24. 1642. Where one of the Heirs Portioners having Disponed her share to the other and thereby being insolvent that other was found lyable in solidum The Lords having considered the Case found the Heir Portioner lyable iprmo loco only for her own share untill the rest of the Heirs Portioners were discust but determined not whether these who were solvendo should be lyable in solidum albeit the Debt exceeded their Portion or only intirely for their own share and for as much more as the value of their Succession could amount to Laird of Cesnock contra Lord Bargany Eodem die THE Laird of Cesnock and the Lord Bargany and Balcarras being bound conjunctly and severally in a Bond Cesnock being distressed for the whole takes Assignation and pursues Bargany for two thirds who alleadged payment and because it was a publick Debt he produced an incident in termino which the Lords sustained not because it buire no warrand to cite Cesnock the Principall Partie and the Executions were within 48 hours by one Person in Kyll Renfreu Fyfe and Edinburgh and so suspect but they superceeded Extract of the Decreet to the first of November contra Wilson and Lodwick Callender
first granted by the Abbot of Dumfermling and the Feu of the Land thereafter there is a Decreet in Anno 1610. pronounced by the Chancellor as Lord of the Regality decerning all the Feuars to pay the five and twenty Curn of all Grains that they brought to the Miln and a greater of that they Abstracted The Feuar of the Miln pursuing for Abstracted Multures and for instructing the Quota producing this Decreet It was alleadged for the Defenders that they offered them to prove that past memory of man at least 40. years bygone they have been constantly in use to pay five Bolls of Bear in satisfaction of all Multure and so can be lyable for no further they having prescribed their liberty from any further 2ly That no respect ought to be had to the Decreet in so far as it Decerns a greater quantity for the Corns Abstracted then for these grinded which is without all Reason especially seing this is but a Burn Miln and not sufficient for the Thirle 3ly They offer them to prove that the Miln was insufficient the years pursued for and no ways able to serve them and the rest of the Thirle as being but a Burn-miln dry in Summer and not having Water enough in Winter It was answered for the Pursuer to the first that they offered them to prove they were in Possession of the Multure Lybelled within these 40. years at least that any lesser Duty was accepted by a particular Paction for a time only To the second opponed the Decreet standing against which there has neither been Suspension nor Reduction nor any ground for the same for its like the coming to the Miln frees them from a greater quantity for abstraction And seing the Quota is but the five and twenty Curn far below the ordinar Thirle Multures it was very reasonable that the samine being abaited to a less quantity they should pay a greater if they came not As to the insufficiency of the Miln it was answered non Relevat unless it were through the default of the Pursuer or his Millers for they being astricted to a Burn Miln what defect is therein without the Pursuers fault cannot louse the Restriction The Lords found the Replys Relevant unless the Defenders condescended upon an insufficiency through the Pursuers fault Here occurred to the Lords whether the Feuars could by Possession prescrive their liberty as to a lesser Multure seing the Possession of a part of the Multure was sufficient to exclude Prescription as to the whole some thought if the Multure had been a certain Quota in the Infeftment of the Miln Possession also not of the hail would hindred Prescription of any part but if the Infeftment of the Miln was only with the Multures used and wont and that the speciality was but by a Decreet as the use and wont that in that case use and wont might change Others thought not but in respect the Pursuer insisted not on that Point but offered to prove Possession conform to the Decâ—eet within these 40. years The Lords decided not that Point Here also it was alleadged that by an Act of the Court of Dumfermling the Defender consenting at least present it was Enacted that such of the Defenders as could not be served might go to other Milns The Lords found this alleadgence only Relevant that it was by consent of the Pursuer or his Authors but left it to be the Defendersâ— after production to qualifie what way the consent was given but that his presence and silence was not enough The Collector of the Vaccand Stipends contra Parochioners of Mayboll and Girvane Feb. 10. 1666. THe Collector of the Vaccand Stipend having charged the Heretors of Mayboll and Girvane for the Stipend due by them the year 1663. They Suspend and produce the Ministers Discharges who served these years and alleadged they made payment bona fide before this Charge It was answered they were in mala fide by the Act of Parliament of the last Session of Parliament declaring the places of Ministers Entred since 1649. to be Vacant if they had not obtained Presentation and Collation conform to the Act. It was answered that the foresaid Act was not simple but conditional if they had not obtained Presentation and Collation and there was nothing oblieging the Parochioners to enquire whether they had done that which by the Law they were oblieged to do but seing there was no Charge against them by the Collector of the Vaccand Stipends and that the Patron or Ordinar did not present another but suffered the then Incumbents to preach all that year they were in bona fide to think that they might pay them for the time they Served It was answered there was a Decreet produced against the same Ministers for the year 1662. and therefore they could have no Right to the year 1663. The Lords found the Reason of Suspension Relevant and proven notwithstanding of the Answer because the Decreet was not against the Heretors and was but obtained in 1664. after they had made payment of the year 1663. The Minister of North-Leith contra Merchants of Edinburgh Eodem die THe Minister of North-leith having pursued some Merchants of Edinburgh Importers of Herring of dry Fish Killing and Ling at Leith and New-haven to pay twenty shilling of the Last of Herring and the twentieth part of the Killing and Ling. It being alleadged that such a burthen could not be allowable because the Teinds was taken where the Fish was taken 2ly That it could only reach the Parochioners of North-leith not the Merchants of Edinburgh And 3ly That they had frequently Traded free of such a Burden The Lords having ordained the Pursuer to adduce Evidences by Writ or Witnesses what Possession they had and the Defenders what liberty they had and having heard the Testimonies of the Witnesses with an old Decreet for the same particulars but not against the Merchants of Edinbâ—rgh nor for dry Fish they found 40. years Possession proven of the said Burthen and therefore Decerned The Laird of Wedderburn contra Wardlaw Feb. 13. 1666. WEdderburn pursues a Reduction of a Feu granted to Wardlaw ob non solutum canonem by vertue of a Clause irritant in the Infeftment The Defender offered to purge by payment at the Bar and alleadged several Decisions that it hath been so allowed It was answered that was only the case of a Reduction upon the Act of Parliament declaring Feus null for not payment of the Feu Dutie but where there is an express Clause irritant in an Infeftment that cannot be purgeable at the Bar else such Clauses should be useless seing without these de jure the Feu Duties behoved to be payed at the Bar or otherwise the Feu annulled The Lords found that there was a difference betwixt a Clause irritant and upon the Act of Parliament and so would not admit of purging at the Bar simply unless the Defender condescended upon a Reasonable Cause ad purgà ndam moram and
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
over-rule his Deputs for whom he was answerable and therefore was oblieged to Reside that albeit he did not constantly sit yet he might advise with his Deputs in important Cases and the Lieges might have access to him to complain in case of the Deputs Malversation and as to the power of Deputation it self and the Injunctions The Lords found that the Defender was in bona fide to enjoy these Priviledges till it was declared notwithstanding he was required to the contrair but as to the future they found that he ought to reside and make use of no Deputs without the consent of the Archbishop but whether that should be only pro re nata or by a warrand for such Persons not only upon necessar occasions mentioned in the injunctions but also in others that the Deputs might ordinarily sit and advise with the Commissars in Cases of importance The Lords were of different judgements and recommended to the Bishop in common to consider what was fit in that Case but declared only according to the Injunctions without interpretating how far the Deputation should reach Children of the Earl of Buchan contra Lady of Buchan February 23. 1666. THe six Children of the Earl of Buchan pursue their Mother for Aliment It was alleadged absolvitor because their was neither Law Statute nor Custome of this Kingdom oblidging a Mother to Aliment her Children 2ly Albeit there were she offers her to admit them in her Family and to entertain them according to her means but can never be oblidged to pay a modification in Money out of the Family for in all Cases of Aliment of Wives or Children against Parents the offer to accept and Aliment them in the Family according to the Parents Means doth alwayes exclude Modification as was lately found in the Case of Sir Andrew Dick and his Son It was answered that the Law of Nature is a part of the Law of this and all other Civil Kingdoms and according thereto the Lords do alwayes decide in Cases now occurring where there was neither Statute nor Custome and if Aliment be due the manner and measure is in arbitrio judicis who may justly ordain their Children to be bred from their Mothers seing she hath miscarried and Married a deposed Minister It was answered that the Law of Nature without our Custome is no sufficient Law to us and does not induce obligationem civilem but only pietatem affectum upon which ground it is that there was necessity of this Statute to appoint an Aliment for Heirs against the Wairdatars and Liferenters which insinuats that there was no such Law before and if the Law of Nature be the adequat Rule we are oblidged to entertain the Poor and all in distress and therefore they might pursue us thereupon 2dly There is no Reason to put it in arbitrio judicis whether a Child should be Educat with the Parent who must Aliment him even upon pretence of the Parents miscarriage for that being the indispensable Right of Parents to educat their Children as they see cause especially who demand Aliment of them it ought not to be in the arbitrament of any Judge unless it were a Parliament and this arbitriment would lay the Foundations to encourage Children to desert their Parents and to claime Aliment out of their Family and to pretend the Parents miscarriages as unfit Persons to be bred with and not breeding them in a fit way which accusations were prohibit by the Civil Law and never admitted by our Custome for albeit the Lords may appoint the way of Education of Pupils their Parents being dead yet Tutors have no such interest as Parents The Lords found the Mother oblidged to Aliment the Children jure naturae which was sufficient to infer this Civil Obligation and Action but found that the offer of Alimenting them in her Family was sufficient according to her means and they could demand no Aliment nor Modification extra familiam For they found that the Lords had thus sustained Aliment to Children against theîr Fathers not upon the Act of Parliament which is competent against all Liferenters and Donatars without consideration of their being Parents but super jure naturae which they found would not extend to the obligation of Charity and which had no definite rule but at the discretion of the giver and was not allowed as a civil obligation by any Nation Grant contra Grant February 24. 1666. GEorge Crant having Appryzed a Wodset Right from Grant of Mornithe and thereupon obtained a Decreet of Removing and Mails and Duties against Grant of Kirkdails Reduction was raised thereof and of the ground of the same viz of the Wodset Right on this Reason that the one half of the Sum was payed and the Wodset renunced pro tanto long before the Appryzing It was Replyed that there was an Inhibition for the Sum whereupon the Appryzing proceeded after which Inhibition if any payment was made or Renunciation granted the samine was reduceable ex capite Inhibitionis It was answered that all that the Inhibition and Reduction thereupon could work was in so far as might extend to the satisfaction of the Sum and now they were willing to satisfie the whole Sum cum omni causa It was answered that no satisfaction could now be accepted because Appryzing having followed upon the samine and being expired and no satisfaction being offered within the Legal or the time of the Reduction it cannot now be admitted It was answered that the Inhibition could not only work that nothing done after the same should be prejudicial to the Sum but altered not the Case as to the Appryzing led long thereafter unless the Inhibition had been raised upon the Appryzing The Lords found that Inhibition could not be taken away or satisfied by payment of the Sums after the expiring of the Apprizing wherein the President remembred of a former Case that even in the obtaining of the Reduction ex capite Inhibitionis the offer to satisfie the Sum whereon it proceeded was repelled In respect an Appryzing thereupon was expired Sir Robert Sinclar contra Laird of Waderburn Eodem die JOhn Stewart Son to the Earl of Bothwell being Abbot and Commendator of Coldinghame the Earl being Forefaulted in Parliament his Son was dishabilitat to brook any Lands or Goods in Scotland whereby Iohn fell from the Right of Provision of the Abbacie Thereafter the King annexed the Abbacie of Coldinghame which was excepted from the general Annexation 1587. to the Crown excepting the Teinds and gave Right of Reversion both of Lands and Teinds to the Earl of Hoom who gave a Tack of the Teinds of Kello and Cumerjame to the Laird of Wedderburn Thereafter Iohn Stewart was by Act of Parliament restored and the former Act of Dishabilitation rescinded whereupon Iohn Stewart demitted his temporal Provision in the King's hands and got it Erected in an Heretable Right he thereupon Infeft Dowglas of Ivleck for relief of Sums Sir Robert Sinclars Lady as Heir to him
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
Mails and Duties by the Escheat It was answered for the Earl that having both Rights in his Person he might poynd the Ground for the Feu-dutie and his Donatar might pursue for the Maills and Duties 2dly His acceptance of the Feu-dutie albeit it could not consist with the Maills and Duties yet it would only extend to these Years that the Feu-dutie was accepted and to no others The Lords found the acceptance of the Feu dutie Relevant only for these Years for which it was received but it occurred to some of the Lords that if it were alleadged there were three consecutive Discharges of the Feu-dutie that these as they would presum all bygone Feu-dutie payed so they would extend to the Maills and Duties for all years preceeding the Discharges Therefore the Defender was ordained to condescend if so many Discharges were and that this point might be debated William Crawfoord contra Andrew Duncan June 7. 1666. WIlliam Crawfoord as Assigney to a Bond of 200. merks granted by Andrew Duncan pursues for payment It was alleadged absolvitor because the Bond was null having no Date at all data est de substantialibus It was answered that the Pursuer offered him to prove by the Defenders Oath that it was his true Subscription which was sufficient and the Date is only substantial when Improbation is alleadged or any Right that might take away the Writ if it were of such a Date as a prior Assignation or general Discharge The Lords found the Reply Relevant with this provision that the Defender might adject what quality he thought fit as these mentioned or that it was done in Minority or not delivered c. but they found him not oblidged to depone simpliciter upon the verity of the subscription and to prove such qualities as they had done before in a Holograph Writ wanting Date the last Session in the Process betwixt the Earl of Kinghorn and Sir James Murray Elizabeth Anderson contra George Cunninghame Iune 9. 1666. THis Cause betwixt Elizabeth Anderson and George Cunninghame anent a Legacie lest by the said George his Wife to the said Elizabeth Anderson being debated the 7. of February last The Lords then found that George by confirming his Wifes Testament in giving up his Debts to exhaust the free Gear and abate the Legacie did not hinder himself to adduce further Debt for a further abatement but now it being further alleadged that immediately before the Confirmation the Bond he would now add was registrat and he charged therewith he could not be ignorant thereof at the time of the Confirmation The Lords altered their Interlocutor and found that having scienter omitted that Debâ— he could not bring it in to the Legatars prejudice This was stopt by Bill the next day Colin Hay contra Magistrates of Elgin Iune 12. 1666. COlin Hay pursues the Magistrats of Elgin for the Debt of a Rebel escaping out of the Prison of Elgin whom he had arrested there It was alleadged for the Defenders absolvitor because the Rebel was not incarcerat by the Pursuer upon his Caption but being incarcerat by another was only arrested in the Tolbooth by the Pursuer and all that is produced to instruct the same is only the Execution of a Messenger who arrested the Rebel It was answered there was no difference whether the Rebel had been incarcerat upon the Pursuers Caption or had been arrested for in both Cases the Magistrats are lyable and the keeper of the Tolbooth ought to have a Book for certifying the Magistrats of all incarcerations and Arrests in Prison and if they be neglective therein it is on their perills and yet here the Messenger not only Arrested but the Executions bore that he intimat the same to the Provost and Baillies Which the Lords found sufficient and Repelled the Defense and found no difference betwixt Incarceration and Arresting in Prison Sinclar of Bryme Supplicant Eodem die SInclar of Bryme gave in a Bill bearing that he had obtained Suspension of all Execution and specially of Appryzing which he presented at the time of the Appryzing and yet the Messenger and Writer went on and Appryzed and therefore craved that the Appryzing might be stopt at the Registers and Seals The Lords refused to grant the desire of the Bill without there had been a Summons against the Appryzer past the Signet but would not upon a Bill cite Parties out of the Town having no dependence on the House nor annull or hinder any pretended Right they had without citing of them but resolved to take in consideration the contempt of the Messenger and Writer at the discussing of the Cause Sir Hendrie Hoom contra Tennents of Kello and Sir Alexander Hoom. Iune 13. 1666. JOhn Hoom Younger of Kello being Forefaulted in the Parliament 1661. For being with the English Armie against the Kings Armie at Worchester 1651. Sir Alexander Hoom obtained Gift of the Forefaultry and thereupon came in possession Sir Hendrie Hoom having Appryzed the Lands of Kello from the said Iohn Hoom and his Father Alexander Hoom upon their Bond and having charged the Superiout in 1653. to Infeft him obtained Decreet of Maills and Duties against the Tennents which being Suspended upon double Poynding and Sir Hendrie and Sir Alexander competing It was answered for Sir Alexander the Donatar that he had possest three years and offered him to prove that the Rebel had possest five years before therefore craved the benefit of a possessorie judgement 2dly That he was preferable in poynt of Right in so far as he offered him to prove that the Rebel was five years in possession before the Forefaulture which gives the King and his Donatar compleat Right by the Act of Parliament It was answered for the Creditor that he ought to be preferred because there being no retour upon the Act of Parliament finding by the Inquest that the Rebel was five years in possession as Heretable Possessor he can neither have the benefit of a possessory Judgement nor stop the Creditors Diligence who found themselves upon the Appryzing against the Father who stood publickly Infeft and there is no sufficient Right in the Rebels Person alleadged nor produced It was answered that the five years possession might be proven by Witnesses by way of Exception 2dly It was offered to be proven by an Inquest conform to the Act of Parliament The Lords found no benefit of a Possessory Iudgement competent neither would they sustain the five years possession by way of Defense but decerned superceeding Extract while the 15. of July within which time if the Donatar obtained the retour of an Inquest he should be heard thereupon The Donatar further alleadged seperatim that the Rebel was Infeft by the Father which was sufficient to prefer him without an Inquest It was answered non relevat unless he had either been publickly Infeft or by base Infeftment cled with possession before the Superior was charged upon the Creditors Appryzing which being equivalent to a publick Infeftment
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
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
all probable by Witnesses The Lords found the Disposition null and that the subscription of these two Notars not bearing that it was by Command could not be supplied by the Witnesses insert unlesse it had been the subscription of an Connotar Subscribing at the same time with a Notar whose Subscription bore Command Here it was Debated whether the Subscriptions of Notars at divers times were sufficient or if the Subscription of a Notar who was not authorized by the English and did forbear to Act at that time were sufficient but the former Vot made these to be undecided as not necessar seing the Writ was annulled by the former Vot Sir George Prestoun contra Sir Iohn Scot Iuly 1667. SIr Iohn Scot having pursued for payment of an Annualrent of 500. Merks out of Sir Iohn Prestouns Lands he alleadged payment thereupon Liâ—â—scontislation being made he produces three Receipts each 500 pounds bearing to an Accompt and alleadged that the odd fifty Merks was for publick Burden which compleating three years must Assoilzie from bygones It was answered the Discharges bore to be but granted by a Factor which was not probative and that they wanted Witnesses and that being given by a Factor they could not infer payment of all proceeding It was answered that Discharges of Annualrents or Rents are sufficient without Witnesses The Lords found that Discharges to Tenents were suffiâ—ient without Witnesses but not being granted by an Annualrenter to an Heretor and found that the Factors Discharge could not inâ—er payment of bygones The Owners of the Ship called the Castle of Riga contra Captain Seatoun Eodem die CAptain Seatoun a Privateer having taken a Ship at Sea she was declared Pryze at Cromarty the Owners pursue Reduction of that Decreet before the Admiral at Leith who Assâ—â—â—zied from the Reduction and adhered to the Dâ—creetâ— the Owners now pursue a Reduction of both these Decreets upoâ— this Ground that by the Treaty betwixt the King and the King of Sweden it is expresly declared that if any Swedish Ships having a Passe from the Kings Council or Colledge of Trade or Governour of the Province where frae she Louseth she shall not be questioned nor any Inquiry anent the Goods or Men and that because by the said Treaty it is Agreed that the said Passes shall expresly contain that the Ship and whole Goods belonging to the Subjects of Sweden contained no Counterband Goods and that upon Oath taken at the obtaining of the Passe na est the Governour of Livinia wherein Riga lyes hath given a Passe bearing that the Owners of the Ship called the Castle of Riga being Citizens of Riga did make Faith that Ship being then at Amsterdam did truely belong to them and was Loaded with their Goods only and was direct to France for a Loading of Salt to be returned to Riga and that there is produced an Extract out of the Admirality of â—rance bearing Faith to have been made that the Ship nor Goods nor any part thereof did not belong to the French nor Hollanders and a Certificat from the Swedish Resident in Holland Registrat in the Office of Admirality in England bearing this Ship to be a ship belonging to the Swedes and yet she was declared Pryze upon this ground only that the Sea-men did acknowledge they were Inhabitants in and about Amsterdam and that some of them Deponed that the ship was a Dutch bottom and one of them Deponed that they were paved by the Skipper who received the Money from a Water Bailzie in Amsterdam without proving that the ship or goods belonged to Hollanders which could not have been ground seing the Passe and Treaty did Exeem them from giving an Accompt or Inquiry anent their Mariners It was answered for the Defenders that all these Passes and Papers were a meer Contrivance and â—alls not in the Case of the Treaty because the ship Loused not from Riga but from Amsterdam and the Pass did not contain the particular Goods and Quantities according to the Conditions of the Treâ—ty and that the Testimonies proved that the ship had on a Dutch Flag that she came hot by the Channel but about the Back side of England and that the Company was afraid to meet with Scotish and English Privateers and having met with a ship in their Course asked for the Dutch Fleet calling it their own Fleet all which were strong Evidences that the ship belonged to Holland It was answered that albeit the Pass mentioned not the particular Goods which it could not do the ship being but to be Loaden the Certificat did abundantly supply that expressing the Loading as for the presumptions they are of no force because the Skipper though a Dutch-man yet was sworn a Citizen of Riga and might justly be more afraid of the English and Scots then of the Dutch and they might call the Dutch Fleet their own Fleet as being of their Nation at last they produced a Letter of the Kings bearing that His Majesty knew by sufficient Information that this was a ship belonging to Sweden and both by it and by a former Letter did peremptorly Command the Delivery thereof and the Goods It was answered the Kings Letter was impetrat upon false Information and if His Majesty had known the true state of the Case as it now stands in the Evidence He would not have so Written nor doth His Majesties Letter granted inaudita parte prejudge the privat Rights of his Subjects The Lords found that the Testimonies of the Witnesses did not prove that the ship and goods belonged to any of His Majesties Enemies and therefore in respect of the Pass Certificat Treaty and His Majesties Letter they Reduced both the Decreets Iuly 31. 1667. THis Cause being again Debated it was alleadged that the former Interlocutor having proceeded mainly upon His Majesties Letter there was no ground to proceed thereupon because it was granted inaudita parte and Acts of Parliament being done by His Majesty without consent of of Estates prejudge no party as to their privat Right but such as are called much less Letters thus impetrat upon importunity and groundless Representation and this Letter is Derogat by a posterior general Letter to the Lords Recorded in the Sederunt warranding the Lords to proceed And as to the Swedish Treaty it can never be understood further then as to Counterband Goods which are the Native Commodity of the Swedish Dominions for albeit some of these be dispensed to the Swedes because most of the Growth of their Countrey is such yet it cannot be extended to this Case where the Swedes Loadned Counterband Goods in Norway and carry them to France both being His Majesties Enemies neither can the Pass be sufficient except as to such ships as are within Sweden and where the particular Goods upon Oath are Attested and expressed in the Pass neither of which is in this Case It was answered that they opponed the former Interlocutor and that a solemn Treaty with so considerable an Allie
payment of a Debt due to him by a Person Incarcerat in their Tolbooth who escaped The Defenders alleadged no Processe till the Magistrats who then were especially Bailly Boyd by whose Warrand the Rebel came out be called 2dly The present Magistrats cannot be lyable Personally having done no Fault neither can they be lyable as representing the Burgh at least but subsidiarie after the Magistrats who then were in culpa were Discussed now after six or seven years time The Pursuer answered that the Prison being the Prison of the Burgh the Burgh was lyable principaliter and if only the Magistrat doing the Fault were lyable the Creditor might oftimes loose his Debt these being oftimes of no Fortune or sit to Govern and the Town who Choiseth them is answerable for them neither is the Pursuer obliged to know who were Baillies at that time or who did the fault and so is not bound to Cite them The Lords Repelled the Defences and found the present Magistrats as representing the Town lyable but prejudice to them to Cite them who did the Fault Robert Ker contra Henry Ker February 5. 1668. RObert Ker of Graden having granted Bond to Robert Ker his Son for 3000. Merks of borrowed Money and 3000. Merks of Portion for which Sum he did Infeft him in an Annualrent of 240. Pound yearly Suspending the Payment of the one half of the Annualrent till his Death whereupon Robert pursues a Poinding of the Ground It was alleadged for Henry Ker the eldest Son who stands now Infeft in the Lands Absolvitor because he stands Infeft in the Lands before this Infeftment of Annualrent being but base took effect by Possession The Pursuer answered first That the Defenders Infeftment being posterior and granted to the appearand Heir without a Cause Onerous it is perceptio Haereditatis and if the Father were Dead it would make the Defender lyable as Heir and therefore now he cannot make use thereof in prejudice of the Pursuer 2dly The Pursuer offered to prove that his Annualrent was cled with Possession before the Defenders Infeftment in so far as he Received the half of the Annualâ—ent which is sufficient to validat the Infeftment for the whole seing there are not two Annualrents but one for the whole Sum and seing the 〈◊〉 could do no more the one half of the Annualrent being Suspended till his Fathers Death The Lords found this second Reply relevant and found the Possession of the half was sufficient to validat the Possession for the whole but superceded to give answer to the former Reply till the conclusion of the Cause not being clear that the Defense upon the Defenders Inseftment could be taken away summarly though he was appearand Heir without Reduction upon the Act of Parliament 1621. Mr. George Iohnstoun contra Sir Charles Erskin February 6. 1668. THe Lands of Knockâ—â—â— being part of the Lands of Houdon did belong to Umquhil Richard Irwing Umquhile Mr. Iohn Alexander Minister having Charged Robert Irwing to enter Heir in special to the said Richard his Grand-sir in these Lands he did Appryze the same from Robert as specially Charged to enter Heir but Robert died before he was Infeft or Charged the Superior Sir Charles Erskine hath Appryzed from Mr. Iohn Alexander all Right competent to him in these Lands and thereby having Right to Mr. Iohn Alexanders Appryzing he is Infeft thereupon After Robert Irwings Decease his Sisters served themselves Heir to Richard their Grand-sir and are Infeft do Dispone to Mr. George Iohnstoun who is also Inseft Mr. George pursues for Mails and Duties in the Name of Irwings his Authors Compearance is made for Sir Charles Erskine who alleadged Absolvitor First Because he hath been seven years in Possession of the Lands in question by vertue of Mr. Iohn Alexanders Appryzing and his own and so is tulus exceptione in judicio possessâ—rio and cannot be quarrelled till his Right be Reduced 2dly He is potior jure and his Right must exclude the Pursuers because he having Right to Mr. Iohn Alexanders Appryzing which was Deduced against Robert Irwing as specially Charged to enter Heir so Richard as to him is in as good case as Robert had been actually Entered and Infeft by the Act of Parliament declaring that when Parties are Charged to enter Heir and lyes out sicklike Processe and Execution shall be against them as they were actually Entered likeas the Tenor of the special Charge introduced by Custom to perfect the foresaid Act of Parliament bears expresly that the Person Charged shall enter specially and obtain himself Infeft with Certification that the user of the Charge shall have the like Execution against him as if he were Entered and Infeft and therefore Mr. Iohn Alexanders Appryzing against Robert Iâ—wing so Charged was as effectual to him as if Robert had been actually Infeft in which case there is no question but the Appryzer might obtain himself Infeft upon the Appryzing after the Death of him against whom he Appryzed and that summarly without new Processe and there is no difference whether the Superior were Charged during the Life of the Debtor or not The Pursuer answered to the first that no Party can claim the benefit of a Possessory judgement unlesse he have a real Right by Infeftment at least by Tack but a naked Appryzing thoug it may carry Mails and Duties as a naked Assigation and is valide against the Debtor or his Heir â—et in it self it is an incompleat Right and not become real It was answered that the Appryzing alone was sufficient as was lately found in the Case of Mr. Rodger Hog against the Tennent of Wauchtoun The Lords repelled the first Defense and found there was no grond for a Possessory judgement here there was neither Infeftment nor Charge upon the Appryzing The Pursuer answered to the second Defense that it was not relevant to exclude him because Richard Irving having Dyed last vest and seised in the Lands and Robert Irving never having been Inâ—eft the Pursuers Roberts Sisters who were Heirs appearand buth to Richard their Grand-sir and Robert their Brother could not possibly obtain themselves Infeft as Heirs to their Brother becuse the Inquest could not find that Robert Dyed last vest and seised as of Fee but Richard and any Appryzing against Robert who was never Infeft evanished seing no Infeftment was obtained upon the Appryzing nor no Charge used against the Supperior during Roberts Life so that the Appryzer ought to have Charged de novo these Pursuers to Enter Heir to Richard and ought to have Appryzed from them as lawfully Chaged and to have obtained Infeftment upon the Appryzing in their Life and as the Sisters would exclude the imperfect Diligence against the Brother so much more may Mr. George Iohnstoun who is their singular Successor It was duplyed by the Defender that Mr. George Iohnstoun albeit he be singular Successor yet he is Infeft after Sir Charles Erskin and therefore the question now is only betwixt the
of Inglistoun who had Married one of his Daughters and the Heirs of that Marriage whereby he Disponed his Estate of Crawfoordstoun to them with a Bond of 20000. pounds the intent whereof seems to have been that they might have Appryzed to make the Disposition effectual and she and William Lowrie having Deponed acknowledged that the Writs and Charter-Chist were carried out of Crawfoordstoun to Englistoun but Deponed that they knew not whether thir Writs were amongst them or not or whether they were formerly delivered to Inglistoun himself who is now dead There was in the Exhibition Libelled a Declarator that the Writs were null as not delivered and that being unwarrantably taken out of the Defuncts Charter-Chist after the Lords Order to the contrair they ought to be put back and Sequestrat till the Rights of Parties were Discust The Pursuers did now insist in this last member to the which it was answered that the Writs being Exhibit to the appearand Heirs ad deliberandum and they having seen them they could have no further interest but the Lady Crawfoordstoun Tutor to her Oy Inglistoun ought to have them up again who produced them neither is it nor can it be instructed that these Writs were unwarrantably taken out of the Charter-Chist after the Lords Warrand seing their Oaths bore that they knew not whether these were in the Charter-chist or not and therefore being a Pupils Writs in his favours produced by his Tutrix they cannot be taken from him or Sequestrat unless the unwarrantable medling therewith were proven 2dly By a Disposition of the Moveables to the Lady produced granted by the Defunct it bears a Delivery of the Keys of the Charter-Chist to her to be Delivered to Inglistoun with the Charter-Chist which is equivalent as if they had been Delivered to Inglistoun himself and she was content to be Enacted to produce them when ever the Lords found cause It was answered that the Lords Warrand being anticipat and the bulk of the Writs in the Charter-Chist carried away it must be presumed that these Dispositions and that Bond was amongst the rest and so must be returned in statu quo The Lords found this alleadgance Relevant unless the Defenders would instruct that these Writs were not in the Charter-chist the time of the Order but out thereof in Inglistouns hands and yet they allowed the Parties presently to Dispute whether albeit these Writs were in the Charter-Chist Inglistoun or his Tutrix should have them up or if they should remain Sequestrat Mr. Iames Drummond contra Stirling of Ardoch Ianuary 23. 1669. MR. Iames Drummond being Donator to the Escheat of the Laird of Glenegies pursues Exhibition and Delivery of a Bond granted by George Mushet to Iames Henderson containing 2000. merks principal and by him Assigned to umquhil Glenegies and thereby falling under his Escheat and the Bond being produced by Ardoch the Donator craves the same to be Delivered to Ardoch It was answered by Ardoch that the Bond ought not to be Delivered to the Donator because it cannot belong to him in respect that Mushet who by the Assignation became Debitor to Glenegies had two Bonds granted by him to Glenegies containing 3000. merks wherein Ardoch is Cautioner whereby this Bond of 2000. merks due to Glenegies was compensed long before Glenegies Rebellion It was answered for the Pursuer that Compensation is not Relevant unless it had been actuallie proponed in Judgement or Extrajudiciallie stated by the Parties offering and accepting the Compensation 2dly That the alleadgance is no wayes Relevant against the Donator who has Right to the Debts due by the Rebel 3dly Ardoch had no Interest to alleadge the Compensation which could only be proponed by Mushet the Creditor and not by Ardoch who is Cautioner to him The Defender answered that Compensation is Competent ipso jure from the time that the sums be mutuallie due by the Debitor and Creditor in the same way as if they had granted mutual Discharges each to other and therefore when an Assigney Pursueth or Chargeth Compensation is always Sustained against him upon Debts due by the Cedent before the Assignation albeit the Compensation was not actually stated before the same neither is the Donator here in better case then an Assigney so that when he pursues Mushet Debitor to the Rebel Mushet may alleadge Compensation upon the like Debt due to him by the Rebel before the Rebellion and the Defender hath good Interest to propone the Compensation because he is Cautioner to Glenegies for Mushet and if Mushet be forced to pay the Donator without allowing Compensation Ardoch will be necessitat to pay Mushet to whom he is Cautioner and therefore hath good Interest to propone that by the concourse of the two Debts they are both extinct and he is not obliged to Deliver up to the Donator the Bond Constituting Mushets Debt The Lords found the Alleadgance proponed for Ardoch Relevant and Competent and that Compensation was Relevant against the Donator upon Debts due by the Rebel before Rebellion Sir Iohn Weims contra Farquhar of Towley Eodem die SIr Iohn Weims having Charged Farquhar of Towley for the maintainance of his Lands deu in Anno 1648. He Suspends on this Reason that by the Act of Parliament 1661. appointing this maintainance to be uplifted by Sir Iohn Weims singular Successors are exeemed ita est in one part of the Lands he is singular Successor to Sir Robert Farquhar of another part he has a Disposition from his Father for Sums of Money particularly exprest in the Disposition It was answered to the first That the Exemption is onlie in favours of singular Successors who had bought Lands the time of the Act ita est Sir Robert Farquhars Disposition is after the Act neither doth it appear that a competent price was payed therefore and as for his Fathers Disposition though prior to the Act yet the Narrative thereof betwixt Father and Son will not instruct the Debts unless it be otherways instructed nor can it be made appear to be a just price The Lords found that the Exemption could not extend to singular Successessors acquiring after the Act for if at that time the Lands were in the hands of him who was Heretor in Anno 1640 or his Heirs nothing ex post facto done by them can prejudge the Right Constitute by the Act which doth not bear an exemption to singular Successors who should acquire but only to these who had acquired They did also Ordain the Defender to instruct the Cause onerous of his Fathers Disposition but would not put the Suspender to Disput the Equivalence of the price unless it were instructed that the Dispositions were Simulat there being a great latitude in prices according to the pleasure of Parties Alexander Chisholme contra Lady Brae Ianuary 26. 1669. ALexander Chisholme having apprized certain Lands from the Heirs of Sir Alexander Frazer of Brae and thereupon insisting for Mails and Duties Compearance is made for the Lady Brae Sir
Simulate in so far as it is offered to be proven that Wishart the common Author did allow to the Donator in the price of the Lands not only the sum whereupon the Horning procceded but also the Expences of the Gift so that it is purchased by the Rebels Means whence the Law presumes it to be to his behove It was answered that this Condescendence cannot infer Simulation to the Rebels behove because it was lawful to Hamiltoun of Corse finding that his Right was not secure to fortifie the same by this Gift and in his account of the price of the Land upon the Warrandice he might require Retention not only of the sum in the Horning but of his Expenses in necessarly purchasing the Gift and might apply the same for the Security of the Lands bought from the Rebel only which is to his own behove but if he were extending the Gift to other Lands of the Rebels that might be presumed to the Rebels behove because the Donator had no anterior interest of his own to these Lands It was answered that if the Rebel had given the Mony to purchase the Right before it was purchased it would infer unquestionable Simulation and it is wholly equivalent that having then the Rebels Mony in his Hand the Rebel ex post facte allowed the Expences of the Gift 2dly Albeit such an allowance ex post facto would not be sufficient where the Donator acquired the Right to the Lands bona fide and then ex necessitate behoved to purchase the Gift to maintain his Right but here the Donator was in pessima fide and most unfavourable because if need beis it is offered to be proven by his Oath or Writ that he knew of George Hamiltouns Right and that the same was compleat before he bought from the common Author and so is particeps frandiâ— with his Author in granting double Rights contrary to Law and therefore the presumption of Simulation and Fraud ought to proceed against him upon the more light Evidence The Lords found the Ground of Simulation not Relevant upon taking allowance from the Rebel of the price if it was done for the maintaining of a Right bona fide acquired but found that it was sufficient to infer Simulation if the Right was mala fide acquired and that the Donator at or before he bought the Land knew of the other Parties Right Pearson of Balmadies contra The Town of Montross Iune 23. 1669. PEarson of Balmadies being Collector of two of ten and the sixteen penny imposed by Parliament anno 1633. and the Magistrates of the Town of Montross having Written a Letter to him promising Compt and Payment in anno 1637. Some few dayes after the Letter he made Compt with Orbistoun general Collector and Charged himself with the whole Taxation of Montross as received And in anno 1654. obtains a Decreet against the then Magistrates holding them as confest upon the quantities of Taxation of their Burgh They now Suspend on this Reason that the Decreet was in absence and the Magistrates only holden as confest and they are now content to Depone that they never had any Stent Roll of the said Taxation and by the Chargers Compt produced he acknowledges the proportion of Montross received And further alleadges that there being neither Warrand from King nor Parliament there should be no Charge or Pursuit Sustained for these old Taxations especially of Mony where the most part of the Monyed Persons lyable then are now insolvent and the Town cannot get their Relief But as for the Land Taxation the King has given Warrand to lift it and it is still secure being debitum fundi The Charger answered that he being neighbour to the Town did upon their desire delay to distress them and held Compt for them as appears by their Letters produced and therefore it will not infer that Charges may be used upon the Act of Parliament only unless Parties had given Writ therefore and the Magistrates were obliged by the Act of Parliament to have uplifted the Taxation debito tempore and payed it to the Collectors and it must be presumed they did so or if they did not it was their fault in the Discussing of this Cause It occurred to the Lords that this Taxation not being imposed upon the Towns Common-good but upon the Inhabitants severally for their Mony and that the Magistrates were not countable to the Town for the Taxation of Mony nor were they lyable for their Magistrates who had not this power of Collection by their Office but by the Commission of Parliament therefore The Lords found the Town and present Magistrates not lyable but prejudice to the Pursuer to insist aganist the then Magistrates their Heirs and Executors Robert Fairie contra Iames Inglis Eodem die RObert Fairie having Charged Iames Inglis younger of Mordistoun for 1000. merks due by Bond he did Suspend and raised Reduction upon Minority Lesion and Circumvention Litiscontestation was made upon the Reason of Minority and the Term was Circumduced and he Decerned He Suspends again and insists upon the second Reason of Reduction upon Circumvention and qualified it thus That albeit the Bond bear borrowed Money yet he offers to prove by Fairies Oath that the true Cause was the Boot between a Horse and a Mare interchanged betwixt the Parties and albeit the Suspender gave as good as he got yet he was induced to give this Bond of 1000. merks to Boot so that he is lesed ultra dimidium justi pretij which in Law is a sufficient Ground alone to dissolve the Bargain and restore either Party actione redibitoria quanti minoris and next in so gross inequality ex re praesumitur dolus The Charger answered that the Reason is no way Relevant because our Law and Custom acknowledges not that Ground of the Civil Law of annulling Bargains made without Cheat or Fraud upon the inequality of the Price neither can there be any Fraud inferred upon the account of the Price of an Horse which is not quantitas but corpus and has not a common Rate but is regulat secundum praetium affectionis and now the Horse and the Mare not being to be shown in the condition they were in the Suspender cannot recal the Bargain 2dly The Reason ought to be Repelled because by a Ticket apart with the same Date of the Bond the Suspender declares upon his Soul and Conscience that he should never Impugn the Bond and thereafter by his second Bond produced he Ratifies the same and passes from any Revocation thereof or quarrel against the same The Suspender answered that he was content to refer to the Chargers own Oath whether in the Chargers own esteem of the Rate the Suspender was not lesed above the half and as for the two Tickets the first was obtained when he was Minor and both laborant eodem vitio the inequality still remaining without satisfaction The Lords in respect of the Tickets and Ratification after Majority and that there
of Captain Barclay and that some of them were Subscribed no Witnesses being present but that he had bidden the Captain put in what Witnesses he pleased and that whereas before he had declared that he had Subscribed no Disposition yet he had done it being in the power of the Lady Towies Friends who told him that Captain Barclay being next Heir-male of Towie had a mind to take his Life which he found afterward not to be true and was willing to do any Deed for conveying of the Estate to the Captain seing he had no Heirs-male of his own The Clerks of Exchequer Advocats and several Writers and their Servants were also Examined upon Oath anent the having of the said Disposition and Bond The Clerks of Exchequer Deponed that the Disposition was produced in Exchequer and Resignation made thereon and the râ—st Deponed that they had seen the Disposition and Bond and were Consulted thereupon by the Captain but had given them back to him Upon the whole Matter the Pursuer craved that now seing there was sufficient Probation of the Forgery of the Writs and that the Lords had produced before them a just double of the Disposition presented to the Exchequer that therefore the Lords would proceed to improve the same and to declare that the same were false and Forged by the Captain and that they would remit him to the Justice General according to the ordinary Custom in Improbations It was answered for the Defender that the Lords could not proceed to improve the Writs because the Writs were not produced and never any Writ in Scotland was improven but when the principal Writ it self was produced neither can it otherwise be for Improbation before the Lords being ad effectum civilem to take away the Writ and Right therein the same behoved alwayes to proceed upon a particular and individual Writ which therefore behoved to be produced before the Lords and Witnesses for suppose it could be prove that a Write of such a date and such a Tenor was Fabricat and Forged at such a time and place which might inâ—er a Crime against the Forgers yet it could not take away all right by such a Writ because there might be several Writs of the same Date and the making up and improving of a false Writ of such a Date could not take away the true Writ of the same Date unless the principal Writ it self had been produced that the Judges and Witnesses might know that that was the very Writ in question And therefore our Custom hath settled and fixed upon this Remeid by allowing a Certification that if the Writs called for to be Improven were not produced they should be holden and repute as false and feinzied and should make no Faith but did not find them proven to be Forged and Feinzied but only to make no Faith as if they had been fenzied which in this Process has been done and the Lords have neither Law nor Custom to do any further 2dly Albeit the Witnesses have by their own Testimonies declared themselves to be Forgers of false Writs their Testimonies cannot prove that Captain Barclay was either Authour or accessory to their Forgery because they are socij criminis and have by their Testimony made themselves infamous as Falsers and so there is no Faith to be given to their Testimonies against any other but themselves Besides they have given partial Counsel to the Pursuer and have betrayed their Testimonies by voluntarly coming to them and declaring what they would Depone and therefore the Lords can neither Improve the Writs nor Remit Captain Barclay to the Justice as a Falser The Pursuer answered that albeit the ordinar Course in Improbations be only Certification when the Writs are not produced yet there is nothing to hinder the Lords to use extraordinary Remeids in extraordinary Cases and there can be no Case more extraordinar than this where there is an evident Tract of Forgery for taking away a considerable Estate of sixscore Chalders of Victual Improven by the very Witnesses insert and that the Writs have not been produced It is the Defenders own fault who knowing them to be false wilfully Abstracts the same and it will be a very great incouragement to Forgery if the Forger knew that all his hazard will be to suffer Certification if his Forgery take not Neither were ever Witnesses in Improbation of Writs exclude in the Civil Process as being socij criminis But if they acknowledge the Forgery thereof they were Improved though they themselves were accessory to the Forgery otherwise if Witnesses can be induced to Subscribe as Witnesses to a forged Subscription there were no possibility of Remeid seing it cannot be thought they would suffer any other to be present or that the Forger himself would consess The Lords refused to proceed to Improve the Writs not being produced or to Remit the Parties to the Justice But they did Declare that by the Processes they found Steil Ross and Ferguson the Witnesses to be guilty of Forgery by their own Confession and that they found Captain Barclay had made use of the VVrits acknowledged to have been Forged and therefore ordained these of their number that were upon the Privy Council to Represent the Case to the Council that they might cognosâ—e what furder Censure they saw just to be Inflicted and it was the privat opinion of most of the Lords that at least the Witnesses and Barclay himself should be banished But they found it not proper for them to express their opinion or prelimit the Council But withal the Lords found the Probation adduced sufficient to Declare Captain Barclay and the VVitnesses infamous and did Declare them such accordingly Iames Watson contra Agnes Simpson February 1. 1670. AGnes Simpson being Infeft by umquhil Alexander Stewart her Husband in Liferent in an Annualrent of 40. pound yearly out of the Lands of Laâ—ellethem she in Anno 1657. obtained a Decreet of Poinding of the Ground and the Tennents having Suspended on multiply Poinding calling her and James Watson and others wherein she is preferred in Anno 1666. to her Annualrent for all years bygone and in time coming In which 〈◊〉 of multiple Poinding Watson was absent Watson making use of the names of the Tennents does raise a second Suspension Anno 1668. wherein he is called on the one part and the said Agnes Simpson on the other part which now coming to be Discust it was alleadged for the said Iames Watson that the Decreet of multiple Poinding against him being in absence he ought now to be heard upon his Right which is a publick Infeftment long before the Liferenters base Infeftment or before it was cled with Possession It was answered that by the express Act of Parliament anent double Poindings It is Declared that where parties are called and compear not but intent Reduction of the Decreet that they shall never be heard against the Decreet or what the obtainer thereof has uplifted unlesâ— they shew a sufficient Cause
And the said Iudith leaves in Legacy 1200. Dollars due by the Estates of Bremen which was a part of her Inventar to her Husband and her three Children of the first Marriage there being no Children of the second Marriage whereupon Iohn Charles and Iudith Greigs pursues the Husband for the Legacy as having uplifted this Sum from the Estates of Bremen The Defender alleadged First That the Clause in the Contract of Marriage taking away the communion of Goods and making even the moveable Estate of either Party to return is against the Law of Scotland inconsistent and ineffectual for any Reservation or Provision in favours of the Wife doth ipso facto return to the Husband jure mariti which jus mariti neither is nor can be Discharged 2dly Albeit the first Contract of Marriage were consistent yet the Sum in question being provided to one of the Daughters of the first Marriage by her Contract upon condition to return to the Wife if the Marriage dissolved the Marriage dissolving it comes back to the Wife tanquam novum jus ex pacto acquisitum and so it falls under the Husbands jus mariti as well as any Sum acquired would 3dly The Husband uplifted this Sum by Commission from his Wife and so it must be presumed to have been spent in oneribus matrimonij at least the Husband must have Retention of his Expences in recovery thereof The Pursuers answered that albeit Provisions in Contracts of Marriage stating Rights in the Wifes Person to be enjoyed by her during the Marriage have not been Sustained in some cases yet this being a Provision of a return after the dissolution of the Marriage it is most consistent especially in this case where the Estate Contracted was abroad and the Contract it self made abroad where by the civil Law current there the Means of either Party doth return hinc inde and the profit thereof is only commonâ— stante matrimonio neither is the case altered by the Daughters Contract for both by the Law and that Paction the Tocher returning to the Mother who gave it in the same case it was it is hers by her first Right the second Right by the Marriage becoming void both by Law and Provision neither doth it import that the Husband lifted the Sum for by the Contract he is obliged to repay it and could only employ the Profit of it in oneribus matrimonij The Lords Repelled all these Defenses but allowed Expences to the Husband laid out by him in Recovery of the Sum. Lindsay and Swintoun her Spouse contra Inglish Supplicants Iuly 5. 1670. 〈…〉 Pursues his Debitor and craved him to be holden as Confest who not Compearing the Clerk was not clear to give out an Decreet because the Messengers Execution did not bear that the Defender was Personally Apprehended but that the Messeger came to his House and knew he was within and was forcibly keeped out by his Wife and thereupon Protested that the Defender might be holden as Personally Apprehended upon the Clerks stop the Pursuer gives in a Supplication desiring that he might either have out his Decreet holding the Defender as Confest upon this Execution or that he might have a Warrand to Cite the Defender at the Mercat Crosse of the Shire or Burgh where he dwells as being difficilis conventionis some were of opinion that he should be holden as Confest the Messenger proving that he was within or if the Execution had born that he and the Witnesses also had given a particular evidence of their Knowledge of his being within others thought that he should be holden as Confest unlesse the Defender could instruct he was alibi in regard of the Contumacy but the most resolved that holding as Confest being a solemn and important Certification peculiar to Scotland that this Assertion of the Messengers and his Execution should not be sufficient nor should put the Defender to alleadge alibi but that he should have a Warrand to Cite at the Mercat Crosse with Certification to be holden as Confest Arch-bishop and Presbitry of St. Andrews contra George Pittillo Iuly 6. 1670. GEorge Pittillo being called before the Prisbitry of St. Andrews for Scandalous Conversation with Agnes Mitchel two Ministers of the Presbitry were appointed to speak with him to whom he proponed he was Married to the said Agnes Mitchel and produced a Testificat of some Persons bearing that they were Witnesses to the Marriage but neither Designing themselves nor the Minister which being reported to the Presbitry they rejected the Testimonial unless the Minister and Witnesses were Designed and if they were Designed ordained the Party to make satisfaction for privat Marrying without Warrand and the said George not Compearing before the Presbitry so to do they for his Contumacy appoints the Process to be seen by the Arch-bishop who ordained the Party to be Excommunicat and accordingly he was Excommuâ—icat and now the Arch-bishop and Presbitry caused present a common Bill for Horning against the Excommunicat Person for Charging him to answer submit and obey the Censure of the Kirk this being brought by the Ordinar to the Lords to know whether they would pass the Horning in course or if they would consider whether the Sentence of Excomunication was orderly proceeded The Lords ordained two of their number to consider the Process of Excommunication and to hear any that did compear for the Party Excommunicat to Debate whether Horning should be direct thereon Before whom Compearance was made for the said George Pittillo who alleadged that Horning ought not to be direct because the Sentence was disorderly and unjust and because there was an Appeal to the Council yet undiscust and founded upon the late Act of Supremacy alleadging that the King and his Council were Supream in all Causes Ecclesiastick so that Appeals might be lawfully made from any Church-man or Church Judicature to the King and his Council And further alleadged that he being unclear to acknowledge the Bishop or his Presbitry and the King having now granted an Indulgence to many that did not acknowledge Episcopal Authority it could not be Contumacy in him not to Appear but he was content that it should be now cognosced whether he was in the Fault and if he were found Guilty he should Submit and make satisfaction which being Reported to the Lords and there being several other nullities in the Process of Excommunication which behoved to be cleared by the Warrands of the Process and having heard these of their number that are upon the Council declare that upon the Appeal the Council Remitted the Matter to the Arch-bishop The Lords ordained Letters of Horning unless Pittillo would presently offer satisfaction in which case they would give him a time and superceed the out-giving of the Letters Lady Lucie Hamiltoun contra Boid of Pitcon and others Iuly 8. 1670. THe Earl of Abercorn having Sold the Lands of Mountcastle to George Hay he gave the Earl a Bond of 4000. Merks bearing borrowed Money but being a part
most rationally ascribe the same to the first especially seing he had both the Rights from the same Party and was not introduced to the Possession by them more upon the one Right than upon the other It was answered for the Pursuer that albeit Parties may make use of any Right they have to Defend their Possession without interverting the same yet that must always be where the posterior Right doth not derogat from the former either as to Right or Possession But here the second Contract and Decreet is inconsistent with and derogatory to the former for the Earl having power to enter by the first till he were payed of one thousand pound Sterling resting of four fructibus non computandis in sortem taking a posterior Right whereby he was to enter for payment of nineteen thousand pounds fructibus non computandis in sortâ—â— he derogat so far from the first that he must Possess primo loco by the last seing the first is not reserved 2dly The late Earl could only be understood to enter in Possession by that Right or the former Heretors to relinquish the Possession to him upon that Right which then had paratam executionem and could then instantly have forced them to quite the Possession but that was only the last Contract and last Decreet whereupon the late Earl had obtained Sentence in his own Person in Anno 1643. when he entered in Possession But as for the first Contract and Decreet of Possession it had not then paratam executionem never being Established in the Persons of the Heirs of Line much less in the Person of the late Earl who had Right from the Heirs of Line by Assignation himself being only Heir-male The Lords found that the Possession was only to be ascribed to the last Decreet which only had paratam executionem primo loco without prejudice to the Earl if that Right were Exhausted to defend himself with the first Right in the next place Major Bigger contra David Cuninghame of Dankeith Iuly 15. 1670. MAjor Bigger having Right to the Teinds of Wolmet from the Earl of Lauderdail pursues David Cunninghame of Dankeith and Iean Dowglas Relict of Wolmet his Spouse for Spuilzie of the Teinds restricted to wrongous Intromission and insists for the fifth of the Rent The Defenders alleadge absolvitor because they produce a Valuation of the Teinds of Wolmet obtained at the instance of umquhil Patrick Edmonstonn of Wolmet before the Commission for Valuation in Anno 1636. The Pursuer answered that the Defense ought to be Repelled First Because Swintoun standing then in the Right of these Teinds had raised Reduction and Improbation of this Decreet of Valuation against Iames Edmonstoun as Heir to Wolmet and thereupon had obtained a Decreet of Certification which is now produced 2ly By Articles betwixt Dankeith and Major Bigger produced Dankeith Compts for a greater Duty than this Valuation and so passes therefrom and Homologats the Majors Right 3dly The Decreet of Valuation took never effect there having never been payment made conform thereto but Tacks accepted by the same Defenders and Duties payed by them of a greater quantity The Defender answered that the Certification could have no effect against the Defenders because it was only obtained against Wolmets appearand Heir who had only the Right of Reversion the Wodsetter who was Proprietar publickly Infeft and the said Iames Dowglas Liferenter by a publick Infeftment never being Called who do now produce the Decreet of Valuation quarrelled And as to the Articles they can import no Homologation because the Article anent the Teind bears only such a sum without relating to the fifth of the Rent or to the price of the valued Bolls The Pursuer answered that the Valuation having been obtained at the Instance of Wolmet and not of his Wife he might Reduce the same by Calling only Wolmets Heir who had not only the Reversion but a Back-tack and he was obliged to Call no other especially seing they had no Right to the Teinds the Defender answered that the Heretor has undoubtedly Interest in the Valuation though they had no Right to the Teind because it Liquidats the Teind and Liberats the Stock of any further and so hath the Liferenter for the Liferent Right especially she being publickly Infeft so that though the Decreet was obtained at umquhil Wolmets Instance yet he being Denuded of the Property by a publick Infeftment of Wodset with his Wifes Liferent reserved therein they could not be miskenned and their Right taken away by a Process against Wolmets appearand Heir who was Denuded of the Property and who did now produce the Decreet of Valuation and abode by it as a true Deed. The Lords Sustained the Defense upon the Decreet of Valuation and found the Certification could not take away the Liferenters Interest in the Valuation she not being Called and found the Articles to infer no Homologation but found the third member of the reply Relevant that Tacks were taken by the Defenders and Duty payed of a greater quantity since the Valuation Lady Lucie Hamiltoun contra Bold of Pitcon Eodem die LAdy Lucie Hamiltoun insists in her Reduction before Debated on the eight of Iuly instant against Pitcon on this Ground that abbeit the Disposition granted to him by George Hay the Common Debitor be anterior to the Pursuers Inhibition yet it must be Reduced on this Ground that it is without any equivalent onerous Cause and that albeit in bear an onerous Cause yet that will not instruct the same but it must be instucted otherwise than by Pitcons own Oath because it is betwixt conjunct Persons two Good-brothers and because it bears not only to be in favours of Pitcon himself but for the use and behave of the Creditors whose Names were then blank and thereupon are now excluded as being filled up after the Pursuers Inhibition so that the Disposition being in so far fraudulent and not totally granted to Pitcon for himself the proportion of his Interest cannot be known but by instructing the Debts due to him and for which he was ingaged the time of the Disposition It was answered for Pitcon that he was ready to instruct the Debts scripto and for some few to whom he had undertaken payment at the time of the Disposition he offered to produce their Bonds and to Depone that he undertook payment of them as said is which is all that is required by the Act of Parliament anent fraudulent Dispositions whereby the defect of an onerous Cause is to be proven by the Parties Oath who gets the Disposition The Lords Repelled the Alleageance and found that Pitcon behoved to instruct the Cause of the Disposition otherwise than by the saids Bonds and his own Oath It was alleadged for Kelburn another of the Creditors that he had Right by an Appryzing proceeding upon sums anterior to the Inhibition It was Replyed that the Appryzing was null First Because the Denunciation whereon it proceeded was not at the Mercat
by the Testament was only Conditional and became void by the Earls Returning and making use of the other Testament and therefore Repelled the Defense in respect of the Reply and had no necessity to determine anent the Confirmation and Error alleadged Lindsay of Mount contra Maxwel of Kirkonnel Iuly 20. 1671. LIndsay of Mount being Donator to the Waird of the Estate of Kirkonnel by the Death of the late Laird and Minority of this Laird pursues the Tennents for Mails and Duties Compearance is made for the appearand Heir as having Right by Disposition from his Grand-mother to an Appryzing led at her Instance against her Son and alleadged that there could be no Waird because Kirkonnel the Kings Vassal was Denuded before his Death and his Mother as Appryzer was Infeft It was answered first That this Apprizing was upon a Bond granted by the Defunct to his own Mother for the behove of his Son and appearand Heir without any onerous Cause and so was null and simulat and a fraudful Contrivance in prejudice of the King as Superiour of his Casuality of Waird and that it was found in the Case of the Lord Colvil that a Vassal having married his appearand Heir in lecto It was found a Fraudulent precipitation in defraud of the Waird It was answered that the alleadgeance was not Relevant because there was nothing to hinder the Defunct to have Resigned in favours of his appearand Heir without any Cause onerous or to grant him a Bond that he might be Infeft upon Appryzing or to grant such a Bond to any Person to the Heirs behove he being in leige poustie and there can be no presumption of Fraud seing he might have obtained his Son Infeft directly which the King refuses in no case when the Granter is in leige poustie The Lords Repelled the Alleadgeance for the Donator and Sustained the Appryzing The Donator further alleadged that by the Act of Parliament 1661. betwixt Debitor and Creditor It is provided that the Debitor may cause the Appryzer Restrict himself to as much as will pay his Annualrent and the Debitor may bruik the rest during the Legal and now the Donator is in place of the Debitor so that what superplus there is more than will pay the Appryzers Annualrent must belong to the Donator It was answered that this Clause is peculiar and personal to Debitors and cannot be extended to Donators who are not mentioned therein because Debitors when they crave Restriction they are presumed as provident men to uplift the rest for satisfying the Appryzing or their other Debts or for their Subsistence and so being introduced wholly in their favours it cannot be extended in favours of the Donator to their prejudice For if the Appryzer Possess all the superplus will satisfie the Appryzing whereas if the Donator uplift the Superplus the Debitor will be hudgely prejudged neither the Appryzing nor any other Debt of his being satisfied thereby nor his Heir intertained therewith The Lords found that this Clause could not be extended to a Donator and that there could not be a Waird both by the Decease of the Appryzer and Debitor The Donator further alleadged that the Appryzing was satisfied by Intromission within the Legal which did extinguish the Appryzing as to all Effects and Purposes as if it had never been and all Parties return to their Rights as they were before the Appryzing and so consequently the Superiour and his Donator has the Ward Duties during the appearand Heirs minority after the Appryzing is extinct for the Appryzing being but a Collateral Security like an Infeftment for Relief it is jus resolubile and doth not fully Divest the Debitor who needs not be Re-seased as he would be in the case of a Wodset holden publick but the Debitors own Infeftment Revives and stands valide and the appearand Heir must be Infeft as Heir to the Defunct which cannot be till he be legitimae aetatis after the Ward It was answered that the Alleadgeance is not Relevant unless the Appryzing had been satisfied in the Defuncts Life for then his Infeftment would have Revived But if any thing remained due the appearand Heir hath the Right of Reversion as appearand Heir and Intromission thereafter cannot Revive the Defuncts Infeftment The Lords found that so soon as the Appryzing was extinct whether before the Defuncts Death or after the Ward took effect and the Donator had Right Laird of Birkinbog contra Iohn Grahame of Craigie Eodem die IN a Competition amongst the Creditors of umquhile Sir Robert Dowglass of Tilliquhilly a Disposition granted by Sir Robert to Grahame of Craigie was called for to be Reduced upon this Reason that it was granted by Sir Robert when he was a notorious and known Bankrupt and fled and was latent so that by the Act of Parliament 1621. he could not prefer one Creditor to another being in that Condition for that Act annuls all Dispositions made by Bankrupts without a just and necessary cause and there was no necâ—ssity nor Justice for the Bankrupt to prefer one Creditor to another It was answered that unless there had been legal Diligence at the Pursuers instance or that the Defenders Disposition had been without a cause onerous there is no ground for that Act to hinder any Debitor though Bankrupt to prefer one Creditor to another for if he had had the Money he might have payed any he pleased and the Cause is both just and necessary because he might have been compelled by Law to have done the same and there was nothing to hinder the Creditor but that as he might have first Appryzed so he might have taken the first Disposition from his Debitor 2dly The Pursuers Debt was for a Bargain of Victual Sold and Delivered to the common Debitor but a Month before the Disposition in question when he was alleadged to be Bankrupt The Lords found the last Alleadgeance Relevant and Assoilzied from the Reduction but did not decide upon the former alleadgeance Guthrie contra Mackarstoun Eodem die IN a Competition betwixt an Heir and an Executor anent the Rent of a Miln where the Tacks-mans Entry was at Whitsunday where the first Terms of payment of the Rent was at Candlemas and the second at Whitesunday the Liferenter having survived Candlemas and died before Whitesunday The question arose how far the Executor of the Liferenter had Right it being alleadged that the Executor of the Liferenter could only have Right to the one half the Liferenter having only survived the first Term as in House Mails The Lords found that the legal Terms of a Miln Rent being Whitesunday and Mertinmas the Liferenter having survived both the legal Terms had Right to the whole years Rent in the same way as in Land Rents and not to the one Term as in House Mails Sir George Maxwel of Nether Pollock contra Maxwel of Kirkonnel Iuly 21. 1671. IN this pursuit related the 11th of Iuly instant It was further alleadged for the Defender that the
Appryzing on the Bairns Portion though prior Iuly 22. 1668. Iohnstoun of Shems contra Arnot Vide Children Ianuary 16. 1676. Erskines contra Râ—ynolds A BOND bearing borrowed Money was found not Reduceable upon the Act against Bankrupts but that the Bond it self did sufficiently instruct the borrowing of the Money as the cause onerous Iune 28. 1665. Moâ—teith contra Aâ—derson A Bond was found Heretable as bearing annualrent though it was but 5. per cent in a Bairns Portion Iune 28. 1665. Pâ—tcairn contra Edgar Bonds bearing Annualrent are moveable till the first Term of payment of Annualrent and fall within single Escheat Iune 26. 1668. Dick contra Keir A Bond by a Father to a Son though bearing borrowed Money yet was presumed to be for love and favour and the same with an Appryzing thereupon was Reduced at the instance of anterior Creditors who obtained Decreets after the Bond for Bargains which were proven by Witnesses to have been contracted before the Bond Ianuary 21. 1669. Creditors of Pollock contra Pollock his Son A Bond by a Father to his Son after he was Married and out of his Family payable after the Fathers death was found not Reduceable at the instance of posterior Creditors of the Father by the Act of Parliament 1621. against fraudful Alienations though it were Reduceable upon evidence of Fraud ex jure communi which were appointed to be condescended upon Ibidem A Bond taken by a Father from a Son after Contract of Marriage Vide Contract BARONS Decreets are valide in Vaccance time by their priviledge without dispensation and they are competent to Iudge the Multures due by their Vassals February 14. 1662. Nicolson contra Forbes of Tillicutriâ— A BARONY was found to include a Burgh of Barony as Pâ—rt and Pertinent though not exprest in a donators Infefâ—ment albeit it was exprest in former Infeftments and particulars of less moment were exprest in this Infeftment as comprehended in the Barony Ianuary 15. 1668. Earl of Argile contra Campbel A BASE INFEFTMENT of Annualrent was sound valide against a posterior publick Infeftment because thereupon there was a Decreet of poinding the Ground though it could take no effect for a long time till the entry to the Annualrent which was not till after the Constituents death 26 and 27. of February 1662. Creditors of Kinglass competing A base Infeftment by a Husband to his Wife on her Contract was validate by and preferred upon the Husbands Possession though the Wiâ—es Infeftment was of annualrent and the Husbands of property November 23. 1664. Lady Grangâ— contra Murray where it was found that from the very date it was validate and preferred to any other though prior and base but apprehending Possession upon a Citation before Candlemas it being Ferm Land and a Decreet thereon in March thereafter Two base Infestments of annualrent competing one to a Wiâ—e the other to a Creditor the Wife was preferred being cled with Possession by the Husbands possession which was not found competent to the Creditor though his Infeftment was prior and though he used Inhibition before the next Term after the Wifes Infeftment and alleadged the Husband could have no Possession after the Wifes Infeftment before his diligence which the Lords Repelled because the Husband was in a present current Possession and nor in acquirenda possessione but the Wifes Infeftment was only sustained in prejudice of this Creditor in so far as it had an anterior Cause to his debt The Husbands Possession was also found sufficient to validate the Wifes Infeftment of annualrent though he possessed the property which includes eminenter all other Rights November 23. 1664. inter cosdem An Infeftment of Warrandice Lands being in the same Infeftment with the principal Lands and both holden base was preferred to a posterior publick Infeftment of the same warrandice Lands though cled with long Possession and that upon an action of Mails and Duties upon the Distresse without Reduction Ianuary 9. 1666. Brown contra Scot. A base Infeftment by a Father to a Son reserving the Fathers Liferent was found not validate by the Fathers continuing his Possession but the Fathers Creditors appryzing were preferred to the Donator of the Sons Forefaulture founding upon the Sons Infeftment Iune 14. 1666. Hume contra Hume A base Infeftment of annualrent was preferred to a posterior appryzing and charge before the Term at which the annualrent begane to be payable in respect the annualrenter was in Possession of the Land out of which the annualrent was payable intus habuit viz. his annualrent proportionally from the date of his Right Iune 30. 1666. Stevinson contra Dobbie A base Infeftment by a Father to a Son Reserving the Fathers Liferent was found not validate by the Fathers possession albeit the Father disponed the Lands reserved to a third Party who did possess but the Disposition was of the Fee and no mention of the Liferent reserved December 18. 1666. Lord Newbeath contra Dumbar of Burgy A base Infeftment was excluded by the Liferent Escheat of the granter albeit the base Infeftment was before the Rebellion seing it was not cled with Possession in cursu rebellionis within year and day February 21. 1667. Miln contra Clerkinson A base Infeftment by a man to his Wife was preferred to a posterior publick Infeftment albeit the base Infeftment was not cled with Possession of the Husband himself but by others deriving Right of Wodset or other Temporary Right from the Husband or his authors which was compted as the Husbands Possession to validate the Wifes base Infeftment Iuly 18. 1667. Lady Burgy contra Strachen A base Infeftment of annualrent was found to be validate by receipt of a part though far within a Terms annualrent and not relative to the Infeftment but to the Bond whereupon it followed and though there was no annâ—alrent due before the Infeftment yet seing the Receipt bear in part of payment of bygone annualrents the Annualrenter was allowed to ascribe it to the annualrents due after the Infeftment to exclude an Infeftment on an Appryzing which appryzing was led before the Receipt but the Infeftment thereupon was after and the Receipt was proven by an Apocha under the Debitors hand Iuly 23. 1667. Hume contra Hume and the Tennents of Kello A base Infeftment of annualrent on a Bond bearing 3000. merks of borrowed Money and 3000. merks of Portion the one half of the whole Sum and annualâ—ents thereof was Suspended till the Fathers death Yet payment of the annualrent of the other half not suspended was found sufficient to validate the whole Infeftment and to prefer it to a posterior publick Infeftment February 5. 1668. Keir contra Keir A base Infeftment in warrandice granted by a Husband to his Wife holden of himself ex intervallo after the principal Infeftment was found valide against a posterior publick Infeâ—tment of the â—ame warrandice Lands as being cled with the Husbands Possession in the principal Lands and that these needed no
1665. Wat contra Russel Fraud in a debitors granting a Bond to his Brother and taking a discharge of the same daâ—e and Witnesses and thereby proponing a defense against an Assigney was found Relevant and receivable by way of Exception unless the Debitor could condescend upon a reasonable cause for which the Bond and Discharge were so granted that it might not inâ—eâ— their design to deceive any that should contract with the Receiver of the Bond December 4. 1665. Thomson contra Hendrisoâ— Fraudulent dispositions may be either Reduced by the Act of Parliament 1621. or declared to be affected with all Execution as if they were in the disponers person December 15. 1665. Eleâ—s contra Keith Vide Ianuary 8. 1669. Captain Newman contra Fraud was inferred by a Fathers granting a Bond to his Son who was Forisfamiliat without a cause onerâ—us albeit the Bond bear borrowed Money yet formerly it was found to be gratuitous and it bearing no Annualrent and only payable after the Fathers death the Father after the date of the Bond continuing in a considerable Trade and his Estate being insufficient to pay his debt the foresaid Bond and Adjudication thereon was Reduced at the instance of posterior Creditors as being a fraudulent conveyance betwixt the Father and Son to insnare Creditors and very hurtful to commerce February 12. 1669. Pot contra Pollock The same February 16. 1669. French contra Watson Fraud of Creditors was found valide to Reduce a Disposition of Moveables being omnium â—â—norum and that the Narrative bearing special onerous causes was not sufficient though the parties were not conjunct but that it behoved to be astructed otherwayes then by the acquirers Oath November 18. 1669. Hendrison contra Anderson Fraud of Creditors was inferred by the Act of Parliament 1691. against an only Son and appearand Heir provided to a great sum of Money by his Contract of Marriage so far as to make a part thereof forthcoming for satisfaction of an anterior creditor albeit the Father was not Insolvent or made Insolvent by the Contract and albeit the Contract bear no Assignment to an Heretable sum but actual payment of Money February 8. 1671. Wat contra Campbel of Kilpont Fraud was not inferred by the latency of a Translation to a Tack by a Husband to his Wife granted for quiting of her Liferent of Lands to his Creditors and therefore was preferred to an Acquirer thereafter upon an onerous cause February 7. 1670. Dam Elizabeth Burnet contra Sir Alexander Frazer A FRAVGHT was found only proportionably due to a Skipper where the Ship was not fully loaden unless he proved by Witnessâ—s that he intimate his going to Sea and required more loading and abode his â—y dayes without necessity to alleadge an Instrument and Protest taken thereon mentioning he was not fully fraughted and craving more Fraught Ianuary 13. 1665. contra Charters FRVITS Vide Cropt Gordoun contr Mâ—â—â—lloch GENERAL LETTERS upon Presentation or Collation of Ministers whether having benefices or modified Stipends are prohibite by Act of Sederunt and the same intimate to the Writers and Keepers of the Signet and Clerk to the Bills but that every Incumbent must have a Decreet conform although he produce his Predecessors Decrect conform Iune 3. 1665. A GIFT granted by the King Erecting Kirk-lands in a Temporal Lordship was found not to be habilâ—â— modus while the same was not vacant but in the hands of the Commendator albeit he was dishabilitat from brooking any Estate by his Fathers forefaâ—ture at the time of the Erection seing his dishabilitation was thereafter Rescinded in Parliament because he was no wayes accessory to his Fathers Crime whereupon his Temporal Provision was validate and the Erection medio tempore was postponed to a posterior Erection to the Commendatar himself upon his own dimission February 24. 1666. Sinclar contra Laird of Wâ—dderburn Gifts of Eâ—cheat competing the Gift last past in Exchequer but first past the Seals was preferred to the other though the other took Instruments against the Keeper of the Seal for delaying him seing the Instrument was after the other Gift was past December 6. 1662. Steuart contra Nasmith A Gift of a Ward being to the behove of the Superiors Heir and made 〈◊〉 of against the Vassals who had the Rights with absolute Warrandice the Gift was â—ound to accreâ—ce to the Vassals they paying a proportional part of the Composition February 15. 1665. Boyd of Pâ—nkâ—ll contra Tennents of Carsâ—lâ—ugh A Gift was found to be affected with a Back-bond granted by the Donator when the Gift past the Exchequer and was Registrate in the Books of Exchequer albeit the Back-bond was not conceived in favours of the Theâ—aurer but of a private person and albeit the Gift was assigned when it was incompleat before it past in Exchequer and the Assignation was intimat Ianuary 31. 1666. Dallace contra Frazer of Streiâ—haâ— Gifts of Escheat bearing all Goods to be acquired was â—ound to extend to Goods acquired within a year after the Gift only and not within a year after the Horning Iuly 2. 1669. Barclay contra Barclay HEIRS â—ound to have the benefite of an obligement to re-dispone Lands albeit Heirs were not expressed but appeared to be omitted by negligence seing the clause bear not that they should beâ—redeemable any time in the Disponers Life Ianuary 9. 1662. Earl of Murray contra Laird of Gairn Heirs were â—ound to have right to an Annualrent though Heirs were not exprest and though it bear only to be payed yearly to the Annualrenter and not Heretably or perpetually February 2. 1667. Pourie contra Dykes An Heir viz. a Son being inâ—eâ—t as Heir to his Mother dying without Issue his Brother Vâ—erine by that Mother not found Heir to him therein but his Father February 5. 1663. Lennox contra Lintoun An Heir found conveenable for the avail of her Marriage without calling the otherâ—Heir portioner who was dead Iune 26. 1666. Arbuthneâ— contra Keith HEIRS OF LINE and not of Conquest â—ound to have right to a Tack albeit Conquest Iune 23. 1663. Ferguson contra Ferguson An Heir of Line of a youngest Brother by a several Marriage found to be the immediate elder Brother of the former Marriage and not the eldest Brother Iune 20. 1664. Lady Clerkingtoun contra Steuart AN HEIR MALE was found to be presently lyable without discussing the Heir of Line where he was obliged to relieve the same November 22. 1665. Scot contra Bothwel of Aâ—â—hinleck AN HEIR SVBSTITVTE in a Bond was found not to make the Substitute Heir lyable in solidum but quo 〈◊〉 valorem of the sum this was a mutual Substitution of a sum payable to two Brothers or the surviver Iuly 3. 1666. Fleming contra Fleming Heirs have right in a Substitution though only a person by Name was Substitute without mention of Heirs and though that persoâ— died before the Institute Ianuary 5. 1670. Innes contra Innes AN HEIR APPARENT was allowed to have Aliment from
being Extracted on the improbation though it be omnium exceptionum ultima Ianuary 23. 1666. contra Earl of Kinghorn In Improbations the Lords declared they would grant three Terms for production of Rights of Lands and appointed the Ordinary to intimate the same November 26. 1667. Hay of Haystoun contra Drummond and Hepburn Improbation upon certification was found null because the Defender was then Prisoner of War in Ireland and his Right was after acknowledged by an agreeement though not perfected Iuly 25. 16â—8 Campbeâ— câ—ntra Laird of Glenâ—rchy In an Improbation the Witnesses insert were examined ex officio what they knew of the Truth or Forgery of the Writs in question though the Writs were not produced there being pregnant presumptions and fragrant fame of Forgery Iuly 6. 1669. Barclay contra Barclay In an Improbation after certification was Extracted The Lords Examined Witnesses as to the Forgery in so far as it might be known without production of the Writs in question and though thâ— Witnesses were accessory to the Forgery November 9. 1669. Inter eosdem In an Improbation where the Writs were once judicially produced in Exchequer and wilfully keeped up certification being Extracted The Lords upon Copies Examined the Witnesses insert and Writer who confessed the Forgery and were moved thereto by the Defender whereupon the Writs were not improven as not being produced but the Writers and Witnesses were found Forgers and the Defender as user and accessory and all were declared infamous and remitted to the Council to use an extraordinary Remedy by Banishment against the Defender Ianuary 26. 1670 Inter eosdem In an Improbation where one of the Witnesses insert had a Designation alleadged competent to more persons all that were alleadged to be so designed that were alive were ordained to be Summoned and the hand writs of those that were dead to be produced Iune 8. 1671. Steuart contra Mckenzie and Kettlestoun In an Improbation of the Minute of a Tack wherein one Deponed that he had subscribed at the Defenders Instigation who told him that he caused the Pursuers Name to be set to the Writ and another that he did not see the Pursuer subscribe and the third who was Writer of the Minute and also Brother to the Defender Deponed that he saw the Pursuer subscribe with her own hand The Writ was found improven and false but there was not two Witnesses instructing who was the Forgeâ— Iuly 22. 1671. Miller contra Bothwel of Glâ—â—corse INCIDENT was not Sustained upon an Act before answer ordaining all Writs to be produced the parties would make use of which was found only to extend to such Writs as they then had Iuly 3. 1662. Kello contra Paâ—toun In an Incident four Terms were allowed for proving the having of the Writs by Witnesses but the Terms were to be short December 15. 1665. Moâ—teith contra Anderson An Incident was Rejected because the Pursuer of the principal Cause was not called thereby and the Executions suspect December 23. 1665. Laird of Câ—â—neck contra Lord Bargeniâ— Incident was not Sustained at the instance of any but these whose Names as Purshers were filled up in the Bill though it contained a blank but it was Sustained against the Defenders havers of the Writs for whom a blank was left though nor at first filled up in respect of the custom for the last and not for the first Iuly 3. 1667. Creditors of Waâ—chtoun contra Counteâ—s of Hume PRO INDIVISO was not sustained to hinder Removing of a Relick from an House as being a Tenement Indivisible though she had a Terce of it but the Heretor was found to have Right to possess yet so that if he dwelt not so himself she should be preferred to all others she giving like Mail as others would pay Ianuary 26. 1665. Logan contra Galbraith INFEFTMENT of Annualrent holden base was found valide against a posterior Publick Infeftment because thereon there was a Decreet of poinding the Ground though it could take no effect for a long time seing the Entry to the Annualrent was not till after the Constituents death February 26 and 27. 1662. Creditors of Kinglassie competing Infeftment past in Exchequer on an appryzing against one who was Infeft by his Authour not Confirmed was found not to supply or comprehend a Confirmation in prejudice of another Creditor who regularly had obtained Confirmation of that null Seasine in so far as might concern his base Right depending thereon Ianuary 16. 1663. Tennents of Kilchattan contra Laird of Kilchattan Major Campbel and Baillie Hamiltoun Infeftments graâ—uitous to a Wife after she was provided by her Contract of Marriage was found not to be taken away at the instance of Creditors upon the Act 1621. by Exception or Reply Iuly 22. 1664. Lord Loure contra Lady Craig An Infeftment to a Wife in Liferent was Sustained by her Seasine adminiculat by her Contract albeit the Seasine was not immediatly upon the Contract but related a Bond granted for the same Cause which was not produced Ianuary 29. 1665. Norvil contra Sunter Infeftment of warrandice Lands being in the same Investiture with the principal Lands and both holden base was preferred to a posterior publick Infeftment of thâ— same Warrandice Lands though cled with long possession and that upon an Action of Mails and Duties upon the Distresse without Reduction Ianuary 9. 1666. Brown contra Scot. An Infeftment of Kirklands was Sustained though it bear to be upon Resignation and had not the râ—ddendoâ—per expressum but relative to the former Infeftment without necessity to produce any original Right seing the Charter was subscribed by the Abbot with consent of the Convent Ianuary 17. 1666. Lord Rentoun contra Feuars of Coldinghame An Infeftment to a person on her own Resignation bearing expresly her to be Heir to her Father who was last Infeft The Charter was found equivalent to a precept of clare constat Ianuâ—ry 20. 1666. Inter eosdem Infeftment of the Office Forrestrie with a Duty out of the whole Lands of an Abbacy was found valide being granted by the Abbot and Convent without Confirmation by the King or Pope Ibidem Infeftment in warrandice granted by a Husband to his Wife though base holden of himself and ex intervallo after the principal Infeftment was found valide against a posterior publick Infeftment of the same warrandice Lands as being cled with the Husbands Possession in the principal Lands and that there needed no Declarator of Distress or Eviction but a pursuit of Removing or Mails and duties upon the Eviction is sufficient which cannot be excluded by a possessory Iudgement upon seven years Possession by the publick Infeftment unless it were seven years after the Eviction February 20. 1668. Forbes contra Innes An Infeftment of Annualrent being before a Liferenters Infeftment after which there followed a corroborative Security accumulating the bygone Annualrents and giving Infeftment for both which posterior Security was not Sustained against the Liferenter nor was it held
Scotsmen as to their Lands and Goods in Scotland though they reside and 〈◊〉 abroad and no nuncupative Testament there can exclude the nearest of kin hâ—re Ianuary 19. 1665. Schaw contra 〈◊〉 The Law of England was found to reach the manner of probation of a Bond made there by an English-man to a Scots-man residing 〈◊〉 after the stâ—le of England and that payment to the Cedent was probable by the Cedents Oath and payment also probable by Witnesses Iune 28. 1666. Momâ—rlane contra Lord Melvil Yet a Bond by a Scots-man to an English-man in England after the stile of Scotland Registrable there was found Regulate by the Law of Scotland and noâ— taken away by Witnesses Ibidem A LEGACY of an Heretable Right was found null though in leâ—ge poâ—stie February 21. 1663. Wardlaw contra Frazer of Kilmundie A Legacy leâ—t of 600. merkâ— and in part thereof the Executors ordained to Discharge or give Back-bond of 200. merks due to the Testaâ—rix which Bond was found to belong â—o the Husband jure mariti and that being Moveable the Wife had but her half of it yet the Lords found that the Executors ought to make it upâ— to the Legataâ— as lâ—gâ—tum rei aliena scienter legatâ— for that being a palpable principle in Law they could not excuse the Wifes ignorance therein Iune 16 1664. Murray contra Executors of Rutherfoord A Legacy being special was found not to be abated proportionally with ordinary Legacies in case they exceed the Deeds part Iuly 21. 1665. Sprâ—â—l contra Murray A Legacy of a Bond in special was sustained though the Executor had an Assignation thereto from the Defunct seing the same Legacy might be made up of the 〈◊〉 Gear as being lâ—gatum rei alienâ— seing it was presumed that the Defunct remembred his own Assignation Iune 24 1664. Falâ—â—nâ—r contra Mcdâ—wgal LICENCE to pursue was sâ—stained without Confirmation though granted after the principal Testament was Confirmed being to a Creditor Iune â—0 1665. Stevinson contra Crawfoord Licence to pursue was sustained after Confirmation of the principal Testament and before Confirmation of Datives ad ommissa February 21. 166â— Scot of Clâ—rkingtoâ—n contra Lady Clâ—rkingtoun AFTER LIâ—ISCONTESTATION Alleadgeances instantly verified are receivable Iune 24. 1663. Bruce contrâ— Laird of Strâ—â—chan Litiscontâ—â—â—ation being made before the Commissars at a parties instance as Factor it was found relevant against that party pursuing as Executor Creditor being instantly verified February 10. 1663. Crawfoord contra Creditors of Inglis LOCVS PENITENTIAE was found to have no place in an agreement to take a lesâ— sum it being as pactâ—â— libâ—ratoriâ—m though writ was not interposed others of the parties Transactors having payed conform December 12. 1661. Hâ—pburn contra Hamiltâ—â—n of Orbiâ—â—â—um The like in restricting an annualrent to a part of the Lands â—ffected February â— 1666. 〈◊〉 contrâ— Hunter and Tennents of Cambâ— Locus 〈◊〉 was found competent to one who had bought Lands though he had written that he thought he could not be able to keep the Bargain and furnish the Money yet subâ—oyned that he would not pass from the communing and albeit he had received the Keyâ— of the House seing there was neither Minute nor other Wâ—â—t drawn up â—hâ—reupon Ianuary 28. 1663. Mâ—ntgomry of Skâ—lmorly contra Brown THE LORDS Sallatles or the Pensions of the King are not arrestable conform to a Letter of the Kings and Act of Sederunt February 8. 1662. contra Murray The Lords found themselveâ— competent to Iudge the Nullities of the Decreets of the Commission for Plantation of Kirkâ— which werâ— visible and instantly vâ—rified and needed no Reduction as that a Decrâ—et against an Heretor not called was null Ianuary 16. 1663. Earl of Roxburgh contra Kinnâ—â—r The Lords found themselves competent to Iudge upon the Iustice Generals Decreet for Assythment which hath but a civil effect for damnage December 16. 1664. Innes contra Forbâ—s of Tolqâ—â—â—nâ— The Lords gave warrant Summarly upon Supplication to take the person of a Bankrupt who was unexpectedly and fraudfully fled Novâ—mbâ—r 30. 1665. Creditors of Masson Supplicants The Lords albeit they are not Iudges in Causes Criminal yet they found themselves coâ—petent to Advocaâ—e a Criminal Cause of Theft but upon the old Act of Parliament of King Iamâ—s the second from â— Sheriff to the Iustice General February 21. 1â—66 contra Sheriâ—â— of Invâ—rnâ—ssâ— The Lords deposed a Writer to 〈◊〉 â—igneâ— for inserting an Article for possessing a party in Letters of Horning having no warrand for the said Article Ianuary â— 1669. Zeaman contra Monreiff The Lords upon a Bill for Horning upon Excommunication allowed the party Excommunicate 〈◊〉 object against the Groâ—nds of Excommunication who having founded upon an appeal to the King and Council The Lordâ— having had an account from the Council that they had Remitted that matter to the â—ishop did pass the Hoâ—â—ing Iuly 6. 1670. Archbishop and Presbytery of St. Andrâ—wâ— contra Pittillâ— LVCRATIVE SVCCESSOR was not inferred by a Disposition and Infeftment to the behove of the appearand Heâ—r but only in so far as was Lucrative 〈◊〉 valorâ—m Ianuary 14. 1662 Harper contra Hume of â—landergast Lucrative Successor was not inferred by a Disposition by an Vncle to his Nephew the Brother being alive who was not found alioqui successurus as in the case of an Oye November 22. 166â— Scâ—â— coâ—tra Bâ—ssâ—wel of Auchinleck Lucrative Successor was inferred by an Assignation of an Heretable Bond by â— Father to his eldest Son who would have succeeded him as Heir therein and that the same was not alike with Bonds of Provision wherein in Father 〈◊〉 only Deâ—itor to the Son Dâ—câ—mbâ—r â— 1665. Edgar contra Colvil Lucrative Successor was not inferred by accepting of a Tocher yet so as if the Tocher were exorbitant both Husband and Wife were found lyable to the Fathers Creditors for what was above a competent Tocher December 23. 1665. Burnet contra Lepers LIFE being presumed was taken off by the Parties being â—â— years out of the Counâ—rey and commoâ—ly â—olden an◠〈…〉 There waâ— also a Letter produced by a 〈◊〉 in the Waâ— bearing that the party was dead February 18. 1670. Lowry contra Drummond LIFERENTERS of an annuaIrent waâ— found Iyable for publick burden with the 〈◊〉 albeit the Act 164â— thereanent was Rescinded as being due in jure Iune 18. 166â— Fleming contra Gillies A Liâ—erenter being Infeft in a Liferent of Lands cum mâ—llâ—ndiniâ— was found to have right to a Miln builded thereafter upon the Land by her Husband but not to the abstracted Multures of his Lands except the Liferent Lands February 16. 1666. Lady Otter contra Laird of Otter A Liferenter being by her Contract â—nfeft in Lands obliged to be worth such a Rent besides Teinds and Feâ—-duties or at her option the heir was obliged to accept a Tack of the Lands for the like sum of free Rent by free Rent was not only understood free of Feu and Teind Duty as is exprest
Lords found the alleadgeance relevant that at Land and about the time of their Testimony the Witnesses were so threatned but would not sustain that they were so threatned at Sea when they were taken unlesse it were alleadged that at Sea they were forced to Swear or Depoâ—e upon Oath whereupon it might have been presumed that by Reason thereof they would adhere to it when they came to Land George Graham contra Grissel Tours and the Laird of Kilhead her Husband February 26. 1668. GEorge Graham having obtained a Decreet before the Baillie against Grissel Tours and her Husband for Furnishing to her first Husbands Funerals her Husband Suspends and raises Reduction on these Reasons that albeit he stayed sometimes in a Chamber in Edinburgh he was not in this Jurisdiction and that his Wifes Oath could infer no burden upon him and that the Baillies did unwarrantably hold him as Confest for not giving his Oath of Calumny whether he had reason to distrust his Wifes Oath The Lords found this unwarrantable and therefore Reduced the Decreet as to the Husband but Decerned against the Wife ad hunc effectum to affect her if she survive or her Executors after her Death or otherwise to affect any other Goods she had excepted from her Husbands jus mariti The Laird of Milntoun contra the Lady of Milntoun Eodem die THe Lady Milntoun having obtained Decreet of Divorce against Iohn Maxwel her Husband the Laird of Milntoun having Right from her Husband to her Liferent which Right fell by the Divorce pursued a Reduction of the Decreet of Divorce wherein the Witnesses being Examined and Re-examined The Lords adheres to the Decreet of Divorce and Assoilzies from the Reduction at which time the Lords having allowed him to insist as in Reprobators he now pursues the same for Convelling the Testimonies of the Witnesses because they were corrupted and suborned both by promises and getting of good Deed and being prompted how to swear as their Oath on Re-examination bears And because their Oath is not only suspicious but impossible because it is offered to be proven that the Parties were alibi at a great distance from the place where the Witnesses Deponed that they committed Adultery and that for several dayes and nights thereafter and before The Defender alleadged that the Lybel was no wayes relevant First In so far as it would Convel the Testimonies as to the principal points referred to Probation against which no contrair Testimonies either of the same or other Witnesses can be admitted by the Law of all Nations otherwise Plea's should be infinit for if the second Witnesses might improve the Testimonies of the first third Witnesses might improve their's and so without end and the alleadgeances that the Parties were alibi are most irrelevant and is ordinarly rejected as being a contrair and incompatible Probation for this being a Crime unlawful at all times and places albeit the Witnesses should have forgotten or mistaken the time if they be positive in the Act non obest and so proving alibi at that time which is not essential is of no moment 3dly The Reprobators in so far as they would improve and convel the extrinsick points of the Testimonies ad hunc effectum to render the Witnesses infamous and their Testimonie invalide as to the whole which is the proper and only subject of Reprobators the famine is not now competent unless first at the time of the taking of the Testimonies the Pursuer had protested for Reprobators and had not referred his objections against the habilitie of the Witnesses to their own Oaths but had only interrogat them of their Age Marriage Residence freedom of partial Counsel or Corruption c. And upon the reason of their Knowledge in that case Reprobators might have been competent to prove the contrair of these extrinsick points and so infirm the Testimony but here the Witnesses being Examined especially as to the Interrogators of partial Counsel and as to the reason of their Knowledge and no protestation taken at that time for Reprobators he cannot now make use thereof and albeit that Reprobators were reserved by the Lords yet that was not at the taking but at the advising of the Testimonies when all that is now alleadged as to their corruption arising from the Re-examination did appear to the Lords and yet the Lords adhered to the Decreet of Divorce and first Testimonies The Pursuer answered that he did not intend to Convel principally the intrinsick points of the Testmonies but mainly to prove their partiality and corruption and therewith also to prove their Testimonies were false and impossible neither is it essential to protest at the taking of the Testimonies nor is there any necessity that the Witnesses Oathes should not be taken on the extrinsick points but on the contrair the intent of Reprobators being that their Oaths as to these extrinsicks being false they should be found perjured and infamous and the whole Testimonies to fall There was no Interloqutor at this time upon this Debate Reoch contra Cowan Eodem die REoch pursues Cowan as representing a Defunct to pay a Debt due by the Defunct to the Pursuer who alleadged Absolvitor because Reoâ—h was vitious Intrometter with the Defuncts Goods in so far as he lifted 50. Pound belonging to the Defunct and gave his Discharge produced and albeit thereafter he Confirmed himself Executor Dative yet he wilfully omited that Sum out of the Confirmation and so as vitious Intrometter is both Debitor and Creditor and cannot pursue the Heir It was answered that this was res modica and could not infer the passive Title The Lords found that this Sum inferred not a general passive Title but only that is made him comptabâ—e for the Sum. Maitland contra Lesly February 27. 1668. IN a concluded Cause of abstracted Multers betwixt Maitland and Lesly The Pursuer being â—nfeft in the Miln with the Multers and Sequels and having proven the astriction of Intown Multers and Witnesses being adduced concerning the Services for upholding the Miln and Dam and bringing home Milnstones who proved that some of the Lands were not in use of these Services but by two or three several Acts as once laying in the Dam at which the Heretor was offended and brake the Tennents Head and twice going to help home the Milnstones whether these Lands were lyable to the Services Whereupon the Lords considered whether the constitution of a Thirlage with Multers and Sequels did by the nature of the Right give the ordinary Miln service without relation to Possession so that immediatly after the constitution thes might be demanded Which the Lords decided affirmative and then found that these Lands were lyable to the service unlesse they had either by Paction or Prescriptioâ— attained freedom from the service and found that the Testimonies did not prove freedom for fourty years and that these Acts were enough to interrupt and so Decerned for the ordinary services David Henderson contra Mr. Andrew Birny
Eodem die MAster Andrew Birny having granted a Bond to Alexander Short blank in the Creditors Name he for an equivalent Cause delivered the same to David Henderson who filled up his Name therein and Charges Mr. Andrew therefore he Suspends on a Reason of Compensation upon a Debt owing to him by Short to whom he delivered the blank Bond for whom he became Cautioner before he granted the Bond and payed the Debt partly before and partly after this Bond so that Henderson by filling up his Name being Assigney and Short Cedent payment or compensation against the Cedent before the Assignation is relevant against the Assigney It was answered that in this Case compensation is not relevant because the very Delivery of a Bond in a blank Creditors Name imports that the Receiver thereof may put in any Mans Name he will and he may never make use of Compensation against him whose Name is filled up otherwise why should the Creditors Name have been left blank which if it had been filled up it behoved to have had an Assignation which is but a Procuratory in rem suaem so that the Procurator can be in no better state nor the Constituent but the blank makes the Person filled up Creditor principally The Lords found Compensation not relevant against a Person whose Name was filled up in the blank being a singular Successor to him who first received the Bond. Mr. William Chalmers contra Wood of Balbegno Eodem die MAster William Chalmers Parson of Feltercarn pursues Reduction of a Tack of the Teinds of the Paroch granted by his Predecessors on this ground that it is null by Act of Parliament as wanting Consent of the Patron The Defender alleadged Absolvitor because the Pursuer had Homologat his Tack in so far as he had received payment of the Duty conform to the Tack which was a clear acknowledgement thereof It was answered that this could only be an Homologation for the years received and could not Homologat the Tack itself because the Tack was a standing Right valid till it were Reduced and the Pursuer could get no more then the Tack-Duty till he should Reduce the same The Lords found this no Homologation to validat the Tack Lord Justice Clerk contra Home of Linthel the Procurator-Fiscal and Officers February 28. 1668. THe Lord Iustice Clerk being Fined in 50. Pound for his absence from the Lord Homes Head Court of his Barony The Officers Poinded an Ox in October after the Plowing was begun The Lord Iustice Clerk pursues a Spuilzy as being Poinded in Labouring time and insisted against Linthel as Depute who gave the Decreet and Precept to Poind and as he who knew of the Poinding of the Ox by the Officer before he was Delivered and commanded to Deliver him and against the Officer who Poinded and the Procurator Fiscal who by the Executions of the Poinding produced Received the Ox from the Officer at the advising of the Cause Linthel having Deponed by his Oath that the Officer had told him an Ox was Poinded and he commanded the Officer to Deliver him and that he knew not he was a Labouring Ox so that that member not being proven the question was whether Linthel as Deput giving a Precept to the Officer to Poind in common form was lyable for the Spuilzy if the Officer did illegally Poind and so was answerable for the Fault of the Officer The Lords found him not lyable and therefore Assoilzied Linthel and found that the Execution of the Poinding was sufficient Probation of the Delivery of the Ox to the Procurator-Fiscal especially seing the Defenders defended themselves with the Poinding and themselves produced the Execution and for the violent profits the Lords Decerned 5. Shilling for every day from October to May inclusive being Labouring time and that yearly since the Spuilzy till the Sentence Duke Hamiltoun contra Maxwel of Moreith February 29. 1668. THe Duke of Hamiltoun as Collector-General of the Taxations having Charged Maxwel of Moreith he Suspends upon this Reason and alleadges that he had Imparked and Inclosed a ten Merk Land since the Act of Parliament 1661. anent the Inclosing of Grounds by which all Lands to be Inclosed thereafter are to be free of all publick Burdens It was answered that the Act of Convention was posterior and had no such exception but on the contrair took away all former exceptions It was answered that an Act of Parliament cannot be Derogat or Abrogat by an Act of Convention The Lords found the Reason relevant notwithstanding of the Act of Convention Ioanna Mâ—alexander contra Charles Dalrymple Iune 9. 1668. IOanna Mâ—alexander a Sister Daughter and one of the nearest of kin of Umquhile Elizabeth Dalrymple pursues a Reduction of the said Elizabeth her Testament whereby she nominat Charles Dalrymple her Brothers Son her Executor and universal Legator upon this Reason that in the time of the making that Testament she was not compos mentis but fatuous and insensible The Lords having appointed the Witnesses of the Testament and other Witnesses to be Examined thereanent the Witnesses in the Testament and Writer thereof being Examined Deponed that she was in her right Miâ—â— and gave order for drawing of the Testament and gave order to Subscribe it the other Witnesses Deponed that about that time for several weeks before and some time after the Defunct was fatuous and not in a right Mind and to every question proposed to her she answered alwise yea yea and some words of Ravery which she frequently spoke The Lords having also caused Re-examine the Testamentar Witnesses that it might appear whether she did only answer to Interrogators as when it was answered whether she would have Charles Dalrymple her Executor and universal Legator and whether she said yeaâ— yea and whether she gave Direction without a forgoing question by words that might signify her Sensibility And having considered the whole Testimonies they found that Probation most pregnant that she was Fatuous and insensible at the time of the making the Testament and therefore Reduced albeit the Witnesses were Extraneous that proved and were not present at making the Testament at which time a lucide interval of a Person Distempered by Disease not constantly Fatuous might have been sufficient This was stoped till it were further heard Sir Iohn Gibson contra Iames Oswald Iune 13. 1668. SIr Iohn Gibson and Iames Oswald having mutual Declarators of Property of a peice of contraverted Ground lying on the Mâ—rch between two Gairs or Bentish Strypes of Ground through a Moor equal number of Witnesses being Examined for either Party one Witnesse for either side proved 40. years constant Possession of the Party Adducer and that they did interrupt the other Party and turned away their Cattel when they came over some of the witnesses did prove either Party to have had Possession above 40. years since but did not prove that they knew the same constantly so Bruiked neither did they know any thing to the contrary and
intertainment and gratification to an Officer for a Guard and even though there were necessar Causes of the Prisoners coming out the Magistrate is not Judge thereof nor has any power of it but the Party ought to apply themselves to the Council or Session and obtain their Warrand which will not be granted even by them but upon instruction of a necessar Cause upon Oath of Physicians or others The Defenders answered that Incarceration was a civil effect of Law and no punishment and that it were against all humanity to put Prisoners for civil Debt in that condition that the Magistrates could not let them out for a little even for the safety of their Life in extremity of sickness which oftimes would not admit of delay till application were made to the Council or Session 2dly Whatsoever may be found just by the Lords in time coming yet the constant and universal Custom of this and all other Burghs to let Prisoners go out with a Guard when they saw convenient cause did introduce a priviledge to Burghs or put the Defenders in bona fide to Act as all their Predecessors had been accustomed to do without any question or Decision in the contrair and alleadged a late Practique in the case of the Town of Culross who suffering a Prisoner that was a poor man to go out to an Hospital where he got Bread and thence he immediatly returned to Prison and to go and see his nearest Relation that was a dying in the Town or to their Burial was not found lyable for the Debt The Lords considering the ordinary Custom of Burghs found that as to the time past they would not find them lyable for suffering Prisoners to go out with a Guard for any necessar cause and found the Defense Relevant that this Prisoner was let go out with a Guard for his health or to the Kirk on the Sabbath but found that Member of the Condescendence Relevant that he went out to the Street and Taverns without a necessar Cause though with a Guard Relevant to infer the Debt But found that in time coming they would have no regard to that unwarrantable Custome but that Magistrates of Burghs should only have power to let Prisoners come out of the Tolbooth under a Guard in the extream hazard of their Life by sickness and not without Testificats by Physicians or skilled persons upon Oath bearing the Parties condition to require the same and that without great hazard they could not suffer delay to make Supplication to the Council or Session The Lady Wolmet and Dankeith her Spouse contra Major Bigger Eodem die JEan Dowglas Lady Wolmet being by her Contract of Marriage Infeft in the half of the Lands of Wolmet did with her Husband consent to a Wodset of the whole Lands for 28000. merks wherein there is a Back-tack setting the Lands and Coal to her Husband and her the longest liver of them two for payment of the Annualrent of the Money which Wodset the said Iean in her Viduity as Tutrix renewed to the first Wodsetters Assigney and became personally obliged both for the principal sum and Back-tack-duty and took the Back-tack half to her self and half to her Son the Heir but after the first Wodset her Husband set a Tack of the whole Coal to his seven Children for twelve years they paying twelve hundreth merks yearly to the Wodsetter and two merks yearly to his Heir which Tack expired in Anno 1663. after which the said Iean Dowglas and David Cunninghame of Dankeith her Husband pursues Major Bigger as intrometter with the Coal for the half of the profite thereof conform to the Back-tack who alleadged Absolvitor because the Back-tack in so far as it exceeded the Ladies Joynture was a Donation between Man and Wife and was Revocked by the Childrens Tack and being once Revocked remained for ever Revocked because the ground of Law prohibiting Donations between Man and Wife and annulling the same nisi morte confirmentur is introduced ne mutuo amore se spolient and therefore nothing can make them effectual but the Husbands continuing in the same mind to his Death but any signification of alteration of his mind directly or indirectly though it were in his Testament or Codicil or by any Deed whereby he owns the thing Disponed as still at his Disposal is sufficient to annul the Wifes Right as if he should grant a Wodset of the same Lands though without mention of his Wifes prior Liferent given gratis stante matrimonio It would Revock the same so that though the Husband Redeemed the Wodset the Wifes Right would not Revive So here the Bairns Tack being of the whole Coal for twelve years doth wholly Revock the Back-tack as to the Wife not only during these years but for ever 2dly There is a minute of Contract betwixt the Husband his Wife and Raith of Edmonstoun clearly showing the change of his mind and restricting the Lady to her first Liferent It was answered that albeit in jure donationis or where there was a clear and liquid excess of the Right received exceeding the Right quite any Deed evidencing the Change of the Husbands Will might be sufficient to Recal it Yet that holds not here where the Lady quite a certainty for a Casuality viz. The profite of a Coal which might many wayes have been ruined and unprofitable in which case she would have nothing for her Joynture and so it was permutatio spei aut jactus retis and at the time of the Wodset was not of more value in buying and selling then the Joynture of the Lands being certain 2dly This not being a pure Donation the Husband could not Recal it till he had Restored his Wife to her first Liferent and releaved her of all Burden and Distress she had sustained by the Wodset neither had he shown his mind to Change but only in part And as to the Contract with Raith it was in Contemplation of a Marriage and was all founded on advancing Sums to Redeem the Wodset whereby the Back-tack ceased 3dly The Defender connot exclude the Pursuer unless he pay her all bygone years of her Joynture she wants from 1654 to 1667. by Arrestments and Processes upon the Back-tack and free her of the principal Sum and Annualrent and satisfie her of the damnage she has Sustained by lying out of her Liferent for all these years and sustaining a long pursuit wherein she is willing to acquiesce The Lords in respect of this offer and that the Defender did also offer to free and relieve her rested therein and did not proceed to advise the former Points in jure Bowers contra Lady Cowper Iune 16. 1671. BOwers pursues the Lady Cowper as vitious inâ—â—â—â—â—er with the Lord Cowpers Goods and Gear for payment of a Debt of his who alleadged Absolvitor because she had a Disposition from her Husband of his Moveables It was Replyed that the Disposition being between most conjunct persons without a Cause onerous was null by
Exception by the Act of Parliament 1621. against fradulent Dispositions It was answered that the Disposition behoved at least to purge the vitious Intromission and did stand ay and while it was Redeemed For notwithstanding of the Tenor of the said Act the Lords do not Sustain that Nullity by way of Exception or Reply The Lords found the Nullity competent by way of Exception it being no Heretable Right requiring the production of Authors Rights but in respect of this colourable Title restricted the vitious Intromission to the single value Lord Lovet contra Lord Mcdonald Eodem die THe Lord Lovet pursues the Lord Mcdonald to count for the Superplus of a Wodset from the Date of his Instrument of Requisition in Anno 1663. whereupon he had raised Summons in Anno 1667. It was alleadged that the Instrument was at the Defenders Dwelling-house when he was out of the Countrey and bear no production of the Procutry and only an offer of a Bond with a Clause of Infeftment in all Lovets Land and did not bear an offer of Caution It was answered that the Act did not require Requisition by Instrument but quaevis insinuatio sufficit and the Instrument bear Delivery of a Copy to the Defenders Lady in his House there being no Procutry for the Pursuer offered now to produce the same and a surety by Infeftment was sufficient the Act of Parliament mentioning no Caution The Lords found that the Requisition behoved to be by Letters of Supplement at the Cross of Edinburgh and Pear of Leith seing the Defender was out of the Countrey but Sustained the same as to the Procutry it being now produced and sustained the offer of Surety and Ordained it to be produced Reserving the Objections and Answers of either Party thereanent Iohn Boyd contra Hugh Sinclar Iune 17. 1671. JOhn Boyd having a Right to some Teinds in Orknay pursues Hugh Sinclar as Intrometter therewith who alleadged Absolvitor because he had Right to a Tack set to umquhil Sinclar during his Life and to his first Heir after him during his Life and nineteen years thereafter which is not yet expyred for though the Defuncts eldect Son survived him yet he was never entered Heir to him neither did he possess thir Teinds and Died shortly after his Father but it is not nineteen years since the second Son Died whos 's Retour is produced as Heir to his Father The Lords found that the eldest Son Surviving his Father although he never Possest was the first Heir as to the Tack and that he needed not be served Heir Alexander Alexander contra The Lord Saltoun Iune 20. 1671. THe Earl of Hadingtoun having obtained a Gift of Bastardy and ultimus hares of umquhil William Gray Provost of Aberdere did assign the same to Alexander Alexander with a Process thereupon against the Lord Saltoun for payment of 5000. merks due by him by Bond to the said umquhil William Gray The Defender alleadged that this Bond being granted for the price of Land bought by him from the Bastard and of the same Date with the Contract of Alienation thereof there was a Back-bond also of the same Date by which the said William Gray was not only obliged in Warrandice but also to procure himself Infeft holden of the Earl of Mar to purge an Inhibition at the instance of Ramsay and to procure a Right of an Appryzing at the Instance of the Lord Newbeath The Pursuer answered that the King or his Donator was not obliged to fulfill these Obligements of the Bastard which were not liquide nor special It was answered that the Gift of Bastardy or ultimus haeres not falling to the King by Forefaulture or any Delinquence but by Deficience of the Bastards Heir the Donator was in no better case as to the fulfilling of these Obligements then the Bastard or his Heir would be if they were pursuing upon the Bond who could not seek payment till the Obligements in the Alienation or Back-bond which were the Causes of this Bond were fulfilled Which the Lords found Relevant as to the special Obligements of obtaining Infeftment and purging the Inhibition and Appryzing but not as to the general obligement of Warrandice wherein no Distresse was alleadged Thomas Crawford contra Iames Halliburtoun Eodem die THomas Crawford having Charged Iames Halliburtoun upon a Decreet Arbitral for payment of a sum He Suspends and alleadged that he was Interdicted at that time and that the Interdicters did not consent to the Submission or Decreet Arbitral The Pursuer answered First That the Alleadgeance was not competent by Exception but by Reduction 2dly That Interdictions had only the same Effect as Inhibitions and did operate nothing as to Moveables or personal Execution even by way of Reduction Both which Defenses the Lords found Relevant John Neilson contra Menzies of Enoch Iune 21. 1671. JOhn Neilson as Assigney Constitute by Iohn Creightoun pursues Menzies of Enoch for the Rents of certain Lands in Enoch upon this Ground that there was a Tack set by James Menzies of Enoch of the saids Lands to the said Iohn Creightoun for nineteen years for payment of fourscore pounds Scots yearly of Tack-duty thereafter by a Decreet Arbitral betwixt Enoch and his eldest Son Robert he is Decerned to Denude himself of the saids Lands in favours of Robert reserving his own Liferent After which Decreet Robert grants a second Tack to Creightoun relating and Confirming the first nineteen years Tack and setting the Land of new again for five merk of Tack Duty in stead of the fourscorepounds After which Tack Robert Dispones the Land irredeemably to Birthwood but at that time Robert was not Infeft but upon the very same day that the Disposition was granted to Birthwood Robert Menzies is Infeft and Birthwood is also Infeft Birthwoods Right by progress comes in the Person of Iames Menzies the Defender Roberts Brother The Pursuer insisted for the Duties of the Land over and above the fourscore pounds during the Life of old Iames Menzies and over and above the Tack-duty of five merks after his Death For which the Defender alleadged Absolvitor because he produces a Decreet at his instance against Creightoun the Tacks-man Decerning him to Remove because he was then resting several Terms Rent and failed to pay the same and to find Caution to pay the same in time coming The Pursuer answered that the said Decreet was in absence and was null because the Defender Libelled upon his own Infeftment and upon a Tack set to Creightoun the Tacks-man by himself and there was no such Tack produced by him or could be produced because the Tack albeit it bear to be set by Iames Menzies yet it was only set by James Menzies his Father and not by himself The Lords found the Decreet null by Exception Whereupon the Defender alleadged that the Decreet at least was a colourable Title and he possessed by it bona fide till it was found null bonae fidei possessor facit