Registrations within the time appointed should be Injustice because Testaments are not the Deeds of Parties concerned viz. Executors and Legators but the Wills of Defuncts which may be unknown to those who have most Interest and therefore the not Registration of them cannot be imputed to them as of Sasines and Hornings which are the Deeds of the Parties themselves and cannot be unknown to them 4. When Defuncts have not made Testaments it cannot be conceaved if there be not a Judicatory for Confirmation of Testaments how the nearest of Kin should be decerned and confirmed Executors Dative how Licences should be given quando dubia est haereditas and apparently damnosa and when haereditas est caduca and neither an Executor is nominate nor the nearest of Kin craveth to be confirmed how the Defuncts Goods should be preserved to Minors and Creditors if the Procurator-Fiscal be not decerned and either become comptable or a surrogation of Parties interessed And when Testaments have been already confirmed how shall Testaments ad omissa male appretiata non executa be expede How shall Executors Creditors be decerned How shall the intricate Questions be decerned and Disputs incident in the Confirmation of Testaments be decided anent the Nullity and Falshood of Testaments the competition of the nearest of Kin with the Executor Nominate of the Executor ad omissa with the Executor confirmed Of the Executor ad non executa with the Executor of the Defunct Executors anent the Praelation of Creditors and others of that nature The Confirmation of Testaments and the decision of Causes Matrimonial and Testamentary cannot be devolved upon the Lords of Session without great prejudice 1. Because the Lords are already overburdened with great Business and weighty Causes of Heretages and great Importance and therefore have been forced to discharge themselves of Actions possessory of Molestation Jam. 6. Parl. 11. Cap. 42. 1587. Ratifying a former Act of of the saids Lords whereby these Actions are remitted to other Judges because the multitude of Affairs before the Lords empeaches greatly the ordinary Course of Justice And it is not possible to the Lords to try the Verity so well which are the Words of the Act and Motive of making of it 2. The Lords have not time to hear Parties and urge earnestly calling and dispatch of the Businesses of greatest Consequence far less can they have time to urge Parties to confirm Testaments and to enquire and take course anent Defuncts Goods ne dissipentur to the prejudice of Creditors and Minors which should be done and is incumbent to the Commissaries ex officio albeit Parties urge not 3. The Lords Procedure by reason of multitude of Business before them is not peremptor and Parties after long and expensive attendance having prepared their Business for hearing cannot be assured to have them called and expede whereas Process before the Commissars are peremptor and Summons bear not continuations which is necessarly required in favourable Causes concerning Minors and poor People who cannot attend But especially in Edicts and Testaments which cannot bide delay least Minors Goods should perish And are so priviledged that in Vacant and feriat times they may be and are ordinarly expede without necessity of a licence All Questions and Causes and probation of Adultery on Impotency the Disputs whether frigiditas sit naturâ vel Arte utrum ante matrimonium aut superveniens Vtrum maleficium sit solubile an insolubile and others of that Nature cannot be agitate verecundé in so publick and eminent a Judicatory primâ instantiâ These Causes much less can be remitted to Sheriffs and other inferiour Judges 1. By reason of the Gravity and Intricacy of them (D.) Praetor etsi Patricius inter Maximos Magistratus Cognoscebat de Legatis peculiaris Praetor constitutus est qui de fideicommissis jus dicat hoc autem testamentariarum causarum membrum perexiguum est L. Si cui Legatum ff de condit demonst L. 2. ff de origine Juris § 32 ibi Cujac 2. The Sheriffs have either their Offices Heretable and Patrimonial or chosen yearly by his Majesty The first cannot have their Right of Jurisdictions enlarged to Causes of such gravity without a new Grant and Right from his Majesty and here how little favourable Heretable Offices are It is constant from Law and Reason by the Act 44. Ja. 2. Parl. 11. It is Ordained that no Office should be given in Fee and Heretage Skeen de verb. Sign in Verbo Sheriffs Because in Jurisdiction persona eligitur and both Heretable and other Sheriffs are known to be Gentlemen who understand not the Law nor the way of Process and are forced to delegate pedaneos Judices and to depute their Friends and Servants who have no knowledge of the Law and being changed yearly have no time to learn the least formality of Process (E) Sheriffs should answer for their Deputs Jam. 1. Parl. 1. C. 6. 1404. Ja. 3. Pa 5. C. 26. 1469. 3. Sheriffs who in Conscience and according to our Acts of Parliament are lyable to answer for their Deputs may think it hard that Causes of such weight and Difficulty which cannot be decided but by such as understand the Civil and Canon Law should be remitted upon their perrils to be Judged by Deputs 4. The Sheriffs Jurisdiction both Civil and Criminal is so large as is represented by the learned Skeen de Verb. Sign in Verbo Sheriffs that it cannot be extended without great Prejudices to Causes and Actions of a different nature Because Removings Molestations Ejections Services and other Actions competent to be judged by the Sheriffs are for the most part real and possessory and may be easily decided by the customary Law of the Country and Acts of Parliament Whereas Testamentary and other Consistorial Causes are in apicibus Juris and cannot be decided but by the Civil and Canon Law not authoritative but according to the equity of the said Law which must be known to those who are Judges in these Causes The prejudices and common Objections against Commissariots are these 1mo That they are Episcopal Courts 2do That Official Courts are supprest in England 3tio Exorbitancy of Quots and other abuses are great in these Courts That the first may be cleared It is to be considered that Jura Episcopalia are of two sorts 1mo Such as are usurped by Bishops as intrinsically inherent in the pretended Office of Bishops 2do Such as extrinsically belong to them by the Grant of Princes or otherways These of the former sort as their usurped Jurisdiction over their Bretheren are extinct with the Office The last sort is not to be supprest if they be useful and necessary Thus the temporal Jurisdiction of Bishops was Reserved to Baillies of Regalities conform to the Infeftment to be holden of His Majesty Thus Episcopal Patronages are not extinct but are to be disposed upon as the Estates shall think expedient sic de caeteris That
pactum non intervenerit praevia tamen denunciatione ut debita solvat licet pignus alienare cessante debitore in solutionem per biennium post denunciationem Perez Lib. 2. Tit. 8. Plenishing If a Wife be provided to a part of it BY Contract of Marriage a Wife is provided in satisfaction of Terce Third or other part of Movables except the half of the Plenishing of the House the time of the Husbands Decease Whereto it is provided she shall have Right Quaeritur If there be no Free Gear will the Heir be obliged to free the half of the Plenishing Ratio Dubitandi The Contract bears she should have Right and she is in the same case as if her Husband had disponed for an Onerous Cause the Plenishing he should have the time of his Decease And on the other part it seems this Provision should be understood Conditionaliter if there be free Goods And the Clause being an Exception from a Renunciation both the Renunciation and Exception from it ought to be of the Regula and of that which would belong to her if she were not excluded which could only be the free Gear If the clauses do not bear besides the Heirship Quaeritur If she will have Right to the plenishing without Deduction of the Heirship Eadem Ratio Dubitandi Possessor PRocessum ligitiosae possessionis Hispani Interim Galli Recredentiam Belgi Provisionale remedium alii processum informativum appellare solent Budaeus litem vindiciariam Thes Bes in Litera I. 29. verbo interim mittel Possessor bonae fidei fructus consumptos suos facit absolute extantes vero Dominocedunt Possessor vero malae fidei nec consumptos nec extantes suos facit sed Dominus extantes vindicat consumptos vero condicit condictione sine causa Perez lib. 2 Tit. 5. Poinding of the Ground A Lord of Erection having Disponed Teinds and the Reddendo bearing a Sum to be payed for a proportional relief of the blensh duty payable by the Lord of Erection and certain Bolls of Victual to be payed also for his relief to the Minister Quaeritur Will the Minister have action for poinding the ground 2do What will the Superiors poinding the Ground import A Decreet of Poinding the Ground being got against the Heretor for the time and the Tennants Quaeritur If after the Death of the Heretor the Lands may be comprysed for the Bygones from the Appearand Heir without a Decreet of transferring or a new Decreet Answer It is thought there is no need of any other Decreet the Decreet being Really founded which may be recovered against an Appearand Heir and put in Execution by Comprysing or poinding against him Prerogative IF the Question betwixt Roxburgh and Lothian should be determined with respect to his Majesties Prerogative being the Fountain of Honour It is thought that His Majesties Concessions whatever the Subject be should be judged Jure communi And that Jus quaesitum whether as to Honour and precedency or any thing else cannot be taken away upon any such pretence The Prerogative is instar littoris which is defined quo fluctus Hybernus exaestuat So that as the Sea does not go beyond the Shoar when the Sea is most full so the Prerogative and Plenitudo Potestatis does never go beyond Law which is a great Littus and Boundary of just Power The Royal Prerogative is acknowledged and asserted by diverse Laws and Acts of Parliament of this Kingdom But how far the Extent of the same may reach is a point of State and Policy of the highest nature and importance and not to be defined by the Opinions of Lawyers but by the Highest and Legislative Authority The Royal Prerogative is not only asserted in the general by the Laws of the Kingdom but diverse and great Powers Rights and Priviledges belonging thereto are in special declared by diverse Acts of Parliament both in Relation to the Government and in Relation to His Majesties Interest and Questions and Causes betwixt Him and His Subjects As the Power of Calling and Dissolving Parliaments The Choising and Appointing Officers of State and Commissioners and Judges To make War and Peace And that there can be no Meetings to Treat or determine in Matters of State without His Majesties Authority and Warrand And that upon no pretence there can be any Rising in Arms without His Warrand And His Right to Custums And Power to grant Remissions for the Highest Crimes And that the Negligence of His Officers cannot prejudge Him And albeit by the Common Law the Eldest Superior is preferable yet when Lands are holden of diverse Superiors Ward the Marriage of the Vassal which otherwayes would belong to the Eldest Superior doth pertain to the King tho as to the Vassal his latest Superior And by custom albeit the going to a Miln for never so long a time being facultatis doth not import Servitude without a special Astriction yet the repairing to His Majesties Milns by the space of Fourty Years doth induce a Servitude without any other constitution As to which and other points of the Prerogative explained by Law and Custom Lawyers may and ought to give their Opinions in Law But as to Lawyers and Juris-consults it is said Turpe est sine lege loqui ubi leges silent they cannot but be silent And the Laws of Scotland which ought to warrand the Resolutions and the Opinions of Lawyers in Questions concerning the State and Government are only the Statutory Law and Acts of Parliament and the common Law and custom and undenyable practique of the Kingdom As to the Civil Law of the Romans it was only the Municipal Law of that People And by reason of the great Equity of it in Questions de Jure privato tho it has not the force of Law with us yet it is of great Authority and use in cases not determined either by statute or custom But as to Questions of State and Government the Civil Law is of no use with us in respect the Laws of all Nations concerning their State and Government are only Municipal and the Constitution of the Respective States doth varie both from that of the Romans and for the most part each from another So that any Questions concerning the same cannot be solidely or warrantably Answered upon Principles or Reasons brought from any Law but the constitution of the Government and Laws and Customs of the Nation and Kingdom concerned It is conceaved That when the Opinion of Lawyers is asked Res should be integra and they should be at liberty to give their Opinion freely and without prejudice which they cannot doe after His Majesty has any way predetermined them by declaring his own Royal Will and Pleasure As to that Question What can be said in Law in defence of these who have acted contrary to Law in Obedience to His Majesty or upon his Royal Dispensation if they should be questioned in the time of Succeeding Kings It is Answered That upon the Grounds foresaid
leaving alse much as would be sufficient for the use foresaid It was Alledged that the Servitude did affect the haill Muir and that their Right flowing from himself could not be restrained sibi imputet who did grant it in the Terms of the said Latitude The Lords considering that it was intended that the said Servitude should only be for the end foresaid and it would be a prejudice both to the publick interest which is concerned that the Country should be improven and waste unprofitable Grounds Laboured and to the pursuer also without the least advantage to the Defenders They therefore Ordained alse much Ground to be set apart as might more nor sufficiently serve for the use foresaid and allowed the pursuer to labour and improve the rest without prejudice to the Defenders to make use even of the rest dureing the time it continueth in the present condition and not laboured And it case it should happen upon any occasion that what should be set apart for the Feuers use foresaid should prove short and not sufficient for that use they reserved Liberty to them to have recourse to the residue and granted visitation to the effect foresaid In praesentia Lockheart and Cheap alter MckenÈie D. 87. Hay of Stravan contra Oliphant 22. June 1667. IT was Found That a Miln-dam could not be drawn from one side of a Burn to another without a Servitude or consent of the Heretor having Lands on the other side and that the Heretor is not obliged to debate whether he had prejudice or not The Lands on the other side being hisand the Burn medio-tenus 2. It was also Found that he might lawfully demolish the Dam unless it were alledged that the Miln had gone the space of Fourty eight Hours So that it might have come to his knowledge that it was a going Miln Haystoun Clerk D. 88. L. Blantyre contra Walkinshaw 2. July 1667. IN a Reduction the Lord Blantyre contra Walkingshaw Ex capite minoritatis It was Found that the granting of a Bond though with consent of Curators being persons above all exceptions was Lesion and that it was not sufficient to alledge that the Money was actually delivered to the Curators or to the Minor in their presence unless it were also alledged that it were converted to his use This seemeth hard for the borrowing of Money by the Minor whose Affairs may require the same was not Lesion but the misemploying of it which is the fault of the Curators D. 89. contra Eod. die AN Assignation being made to Mails and Duties of a Tenement of Land for the Year in which it was granted and in time coming without Limitation The Lords Found That the Heir of the Cedent ought to have a formal and valid Disposition of the Land wherupon the Assigney may be Infeft Seing otherwayes he could not be secure as to a perpetual Right to Maills and Duties against a Singular Successor Et concesso Jure conceduntur omnia sine quibus explicari non potest D. 90. Mebrae contra Melaine 8. July 1667. IN the Process Mcbrae contra Melaine being for removing a Tutor suspect upon many Grounds and in special that the Tutors Father had been Tutor to the Pupils Father and had not compted and that the Tutor and his near Relations had Questions and Actions of great importance with and against the Pupil The Lords inclined That another Friend should be joined to the Tutor But no Answer was given by the Lords to the Dispute only the pursuers Procurators got a time to condescend upon a person fit to be joined D. 91. Crie contra E. Finlator 9. July 1667. A Creditor having obtained a Decreet in subsidium for payment of his Debts against the Magistrates of Dundee and having Assigned the Bond wherupon the Debt was due to the Magistrates they pursued the Cautioners in the Bond who alledged that the Debt and Bond being satisfied by the principal or Town of Dundee who was Lyable loco Rei ex delicto the Cautioners were liberate The Lords did demurr and delay to give Answer Vide infra 24. January 1668. D. 92. Grange Hamilton contra Smith Eod. die THe Lords Found That as the payment of Annualrents so the payment of Feu-duties may be proven prout de Jure Hay Clerk D. 93. Watson contra Law 15. July 1667. IN the Process Watson contra Law It was Found That Kirklands being Disponed with absolute Warrandice The Disponers are obliged to warrand from the Designation of a Gleib Though it was alledged that ex natura rei and not ex defectu Juris The said Gleib was evicted Thereafter it was Found in the same Cause That the Designation being as to Cows and Horse grass and upon a Law supervenient after the Disposition viz. An Act in the late Parliament The Disponer ought not to warrand from a Supervient Law D. 94. contra Eod. die EXhibition being pursued by an Appearand Heir to the end he may advise not only as to the Writes in favours of the Defunct but such as were granted by him The Lords superceeded to give Answer as to the last Member until they should consider the Act of Sederunt It being alledged by some of the Lords That by an Act of Sederunt it was ordained that no person should be forced to exhibite Writes granted by Defuncts in favours of himself or his Authors Except Writes granted by Parents Or Husbands in favours of Wives and Children D. 95. Hamilton contra Symenton 16. July 1667. IT was Found That the Mother being Liferenter of all that could belong to the Daughter as Fiar and Heir to her Father was obliged to entertain her and de facto having entertained her could crave nothing for her aliment though the time she was entertained she was only appearand Heir and thereafter was about to renounce to be Heir Hamilton Clerk D. 96. Elleis contra Keith eod die THE Lords upon debate and deliberation Found That a Person addebted in payment of a Sum upon a Wadset may pay his Debt and take a Renunciation tho the Creditor granter be inhibited and that Inhibitions do not affect Renunciations The Reasons that moved these that were for the Decision are 1. That Inhibitions do hinder the Liedges to purchass from Persons inhibited but not to borrow Money from them and as they may lawfully pay the Sums they borrow so they may take Discharges and Renunciations 2. When a Person does grant a Renunciation of a Wadset he doth not grant a Voluntar Right but only a Discharge upon the matter which in Law he might be forced to give upon an Order of Redemption 3. A Person inhibite might take Payment and grant Discharge of an heretable Bond even before Sums due upon such Bonds became arrestable 4. If Inhibitions should affect Renunciations of Wadsets then they could not be granted without consent of the Creditor who had inhibited even after an order of Redemption 5. The Inhibition where it mentioneth and prohibiteth
to delay the Examination of the Witnesses until further diligence should be done to bring here the Messenger Me Refragante but ordained Colin to pay the expences And if it had been desired that if the Witnesses should die they should be holden as improving The Lords would have granted the desire D. 43. Carse contra Carse 8. Novemb. 1666. DOctor Carse having taken a Right of Annualrent out of Sir David Cuninghams Lands in the name and persons of Mark Carse of Cockpen and Adam Watt Writer and a comprysing thereafter deduced in their name to the behoof of the Doctor for some arrears of the said Annualrent not only out of the Lands out of which the Annualrent was due holding blench or feu but of other Lands holding Ward Charles Carse Son and Heir to the said Doctor pursued the said Mark Carse and the Heir of Adam Watt to denude themselves of the Right of the saids Lands conform to a Backbond granted by the said Mark Carse and the said Adam Watt declaring the trust In that trust it was alledged for the Defenders that they were content to denude themselves they being releeved of all hazard they might incur upon occasion of the said Trust and having that Right in their Person and to that purpose did offer a Disposition bearing a provision that the Right should be burdened with the relief of Wards Marriages and Ministers Stipends Cess and other such hazards It was Answered that the said Disposition ought not to be clogged with such a provision which would fright Buyers from purchasing the saids Lands and the pursuer was necessitat and had presently an occasion to sell the saids Lands And as to the incumberances and hazards which the Defenders should condescend upon they should be purged But as to the Marriage of Adam Watts Heir which was condescended upon there could be no hazard upon that account In respect the comprysing at the instance of Mark Carse and Adam Watt was the fourth comprysing which did only import a Right of reversion The first comprysing whereupon Infeftment had followed carrying the Right of property It was Duplyed that if it should appear that the former apprysings are either null or informal or satisfied the fourth Apprysing would carry the Right of property and consequently the Marriage The Lords Found that the Pursuer should accept the Disposition with the burden of the said relief Or in his option should secure the Defenders by a Bond with a Cautioner to releive them D. 44. Bowie contra Hamilton 10. Novemb. 1666. HAmilton of Silvertounhill having Disponed to James Bowie certain Lands whereto he had Right by Comprysing and the said James being removed at the instance of a Wadsetter and having Pursued upon the Warrandice contained in the Disposition It was alledged by Silvertounhill that though the Disposition did bear absolute Warrandice yet by a Margine subcribed it was restricted to warrand only the formality of the Comprysing and the truth of the Debt and the Executions It was Answered that the Warrandice being absolute in the Body of the Disposition was indeed qualified by the Margine that it should only be extended to the Warrandice of the Lands in so far as concerns the Apprysing and Sums thereinmentioned which are the words of the Margine and that the said Warrandice imports that the Disponer should not warrand simply but as to the Sums contained in the Comprysing so that in case of eviction Silvertounhill should only refound the same and the Pursuer was content to restrict the Warrandice to the Sums payed by him It was urged that there being Three kinds of Warrandice viz. Either absolute or only that the Comprysing was formal and the Debt just or a restricted Warrandice to refound the price in case of eviction the Last was Medium inter extrema and most equitable and in obscuris magis aequa interpretatio est contra Disponentem facienda qui potuit Legem apertius dicere And if it had been intended that he should warrand only the formality and validity of the Comprysing and reality of the Debt it had been so exprest Yet The Lords by plurality of Voices Found that the Warrandice should be interpret to warrand only the validity of the Comprysing and the reality of the Debt That being the most ordinary in Rights of Comprysing Sinclar alteri Harper D. 45. Cheine contra Christie 15. Novemb. 1666. GEorge Cheine Pursued Adjudication against David Christie of a Right of Annualrent which pretained to James Christie the said Davids Brother the Pursuer's Debitor James Cheislie Writer compeared and alledged he had Right to the Lands craved to be adjudged by an expired Comprysing of the property of the same against the said David Christie who had Right to the saids Lands and that the said James his Right of Annualrent was null being base and never cled with Possession The Lords Found that the alledgance was not competent hoc loco against the Adjudication and that the said debate would only be competent after the Adjudication when he should pursue a poynding of the ground The Lords Found the contrare before in an Adjudication Pursued by Sornbeg contra the Lord Forrester which practique was obtruded and not respected Because the Lord Forresters Right in that Case was clear And this the Lords thought hard Forrester being content to dispute his Right that a Right to his Lands should be established in the Person of another to trouble him But it were fit our Practiques were uniform And it appears hard that a Creditor who is a stranger and has not the papers in his hands and is not in a Capacity to pursue for them before he get a Title by Adjudication should be forced to Dispute his Debitors Right Newbyth Reporter D. 46. Abercrombie contra eod die FOund that a Pursuit upon an Assignation after the Summonds execute should not be Sustained though the Cedent concurred the Pursuit not being at his instance Newbyth Reporter D. 47. Kennedy contra Hamilton eod die THe Lords Found a Comprysing upon a charge to enter Heir null Because the person at whose instance the charge was had no Right to the Debt the time of the Charge the Assignation whereby he had Right being acquired thereafter so that the Charge was Inanis and without ground Me referente D. 48. Binning contra Farquhar Eod. die A Disposition being made by a Father in favours of a Son And thereafter the same Lands being Disponed by the Son in favours of his Brother in Law The said Rights were questioned by a Creditor as being fraudulent being Disponed by the Sons Contract of Marriage which though Onerous as to Provisions in favours of the Wife is not so as to the Son whom the Father could not advance or provide in prejudice of the Creditors But it was alledged that the Disposition made by the Son was for an Onerous Cause and by the Act of Parliament though a Right should be found fraudulent yet a third party acquiring bona fide
by the Act of Parliament is secured and his Right cannot be questioned unless he be particeps fraudis or acquire the same without an Onerous Cause which by the Act of Parliament is only probable Scripto vel Juramento Yet the Lords enclined to reduce the Right granted by the Son unless it were offered to be proven that it was for an Onerous Cause in respect of several presumptions alledged and informed by the Pursuer And before Answer as to the Relevancy ordained both Parties to condescend upon their presumptions hinc inde of Fraud or the Cause Onerous for the granting of the said Right and to prove the condescendence I have ever thought that the practice of the Lords to ordain Parties to prove before Answer as it is late is accompanied with many inconveniencies seing by such Acts which are not of Litiscontestation Processes are still keeped loose and after that irregular way of probation the debate of Relevaney is again resumed to the great vexation both of Parties and Lords and after the Lords Interloquitor of Relevancy there may be again Litiscontestation So that upon the matter there are two Litiscontestations in one Cause Newbyth Reporter It being again debated What the Certification should be in such Acts. viz. Whether the Alledgance should be holden as not proponed or that the Lords should advise Which in effect is no certification The Lords were not clear to detetmine which is a great Informality and a pressing reason against that anomolous way D. 49. Reid contra Tailzifer 16. Novem. 1666. IN the case William Reid contra Tailzifer and Salmond It was Found That a Testament is to be thought execute so that thereafter there is no place to a non Executa when a Decreet is recovered against the Debitors though the Executor decease before he get payment Because the Right of the Debt is fully established in his person by the Decreet and he having done diligence it ought not to be imputed to him that the Debitor is in mora as to the payment of the Debt And there being Jus quaesitum by a Decreet and Execution having followed thereupon by Horning after which Annualrent though not due ex pacto yet becometh due ex lege or by Comprysing at the instance of the Executor and Infeftment thereupon It were absurd that all these Rights should evanish which would necessarly follow if there were place to a non Executa Seing the Decreets and Rights foresaid following thereupon could not be transferred or settled in the person of the Executor ad non Executa who doth represent the Defunct only and not the Executor at whose instance the Decreet is obtained and Execute D. 50. Purves contra Blackwood Eod. die ADam Purves having pursued Reduction and Improbation of a Comprysing and the Grounds and Warrands thereof against Blackwood The Lords In respect the Comprysing was deduced Twenty four Years before did refuse to grant Certification against the Letters ad Executions and against one of the Bonds being Registrate when the principal Bonds were given in to the Clerk Register to ly in publica custodia In respect of the Troubles of the Time and the loss and disorder of the Registers and that the Extract was produced and the Defender was content to abide at the Truth thereof Hay Clerk And Newbyth Reporter D. 51. Govan contra Paip 24. Novem. 1666. IN the case Govan contra Paip The Lords Found That an Assignation not being intimated in the Cedents time and consequently the Debt being in bonis Defuncti ought to be confirmed But the Lords in consideration that the Debt was small Found Process at the Assigneys instance he finding Caution for the Quot effeirand thereto D. 52. contra Miln Eod. die An Order being used for Redeeming a Wadset the Executor Creditor of the Wadsetter pursued the person in whose hands the Consignation was made for payment of the Sum Consigned And in the Process the user of the Order was called and Decreet was obtained but before it was Extracted he deceast and there was debate upon the Oath of the Consignator The Lords Found That the user of the Order being a person having interest and called ab initio nothing could be done until the Process was transferred against some person representing him In the same Process it was argued amongst the Lords whether a Sum being consigned upon an Order of Redemption the user of the Order may pass from it and lift the Sum without consent of the Wadsetter And it was remembered by some of the Lords That upon an Instrument of Consignation Process was sustained at the instance of the Wadsetter against the Depositar in whose hands the Sum due upon the Wadset was consigned for making the Sum forthcoming But in this case nothing was done It appeareth that after Consignation Jus is Quaesitum to the Wadsetter so that the Sum being consigned and sequestrate to his behoof cannot be uplifted without his consent D. 53. Lesly contra Bain 6. Decem. 1666. IN a pursuit to make forthcoming after serious deliberation and debate amongst the Lords as in a case daily occurring and wherein the Decision would be a preparative and practique It was Found That a pursuit to make forthcoming a Sum of Money due to a Debitor is in effect Execution and equivalent to a poinding Seing Money being in nominibus and not in specie could not otherwayes be affected and poinded and therefore could not follow but upon a Decreet and not upon a Bond not Registrate 2. It was Found that an Arrestment is but an Inchoat and incompleat Diligence and notwithstanding thereof the Sum Arrested remaineth in bonis of the Debitor Seing notwithstanding thereof Goods belonging to a Debitor may be poinded As also Arrestment being a Negative Diligence whereby a Sum Arrested is secured so that the Debitor cannot uplift and the person in whose hands the Arrestment is made cannot pay or give away the same in prejudice of the Arrester and as in immobilibus Inhibition doth not establish a Right in the person of the Creditor unless he deduce a Comprysing but doth affect the same so that the Debitor cannot prejudge the Creditor and his Diligence if he Compryse There is Eadem Ratio in Arrestments in mobilibus Upon these Grounds it was Found That the Debitor deceasing the Sums Arrested being in ejus bonis ought to be confirmed and that the Creditor could not have Action against the person in whose hands the Arrestment was made and the Appearand Heir of the Debitor called for his interest but should confirm himself Executor Creditor D. 54. Monteith contra E. Calender and Gloret 7. Decem. 1666. THE Laird of Parkley Hamilton as principal and Hamilton of Kinglassie and certain others his Friends as Cautioners being Debitors in Two Bonds Kinglassie in consideration that Parkley had Disponed to him a Right of Wadset which he had to the Lands of Touch by a Contract did oblige himself to satisfy and pay the Sums contained in the saids
Defunct was fatuus incompos mentis And the Relevancy being questioned because no Act or Circumstance or qualification was Libelled inferring the Defunct to be in that condition The Lords Ordained the Pursuer to condescend Wallace alt Hog D. 77. Harroway contra Haitly 14. June 1667. JAnet Harroway pursued the Heirs of Alexander Haitly her Husband to hear and see the Tenor of her Contract of Marriage with her said Husband proven being lost as was pretended the time of the Troubles It was alledged that no Adminicle in Write was Lybelled or produced And whereas it was Lybelled that John Nicol was employed as Writer for drawing of the Contract the double of it was insert and extant in his Servants Stile-Book The said Stile-Book being neither a Write under the Defuncts hand nor a Minute nor a Record Extant in any Register could not be sustained as any Adminicle The Lords Albeit it was offered to be proven by the persons alledged to be Writer and Witnesses to the Contract that it was subscribed and of the Tenor Lybelled and other probabilities were urged Yet they did not sustain the Summonds without an Adminicle upon that consideration in special that our Law ob Lubricam fidem of ordinary Witnesses against whom there is possible no legal exception deferring so little to their Testimony That Transactions Agreements or Promises above the value of 100 pounds cannot be proven by Witnesses If such pursuites should be sustained without Adminicles of Writ Contracts of greatest importance might be made up and proven by Witnesses It was remembred by some of the Lords that in the Process Corsar contra Durie The Lords were so tender that upon a contentious debate a Seasin was found not to be an Adminicle D. 78. Antrobus contra Anderson Eod. die GEorge Antrobus English-man pursues William Anderson Provost of Glasgow for 234 lib. 13. shillings Sterling due by John Herbertson sometimes Baillie of Glasgow upon that ground that being charged to take the Debitor upon Letters of Caption he had refused to concur with the Messenger It was alledged that the Defender was not in sight of the Rebel and though it be pretended that it was shown to the Defender that the Rebel was in the same House in another Room for the time yet the Defender being chief Magistrate and Provost of the Town he was not obliged to go himself to seek the Rebel and it was sufficient he was willing to send his Officers and did send them to that effect Especially it being considered that the Provost was charged about Nine of the Clock under Night and the Army having come that same Night to Glasgow he was the very time that the Messenger charged with the Quarter-Master and other Officers about the business of quartering the Forces All which amounteth to a Relevant Defence to free the Defender of an odious pursuit the pursuer having no prejudice in respect the Rebel was and is notourly Bankrupt and was imprisoned a few dayes after and continued a long time Prisoner in Glasgow The Lords Found the Alledgance Relevant The Lords are in use to sustain such Actions in subsidium against Magistrates for payment of the Debt when they suffer the Debitor to escape out of Prison But when a Magistrate is charged with Letters of Caption bearing no Certification but Horning it appears hard to me that the Law having defined and prescribed the pain and certification that the Lords should sustain any other penal Action without the warrant of an Act of Parliament And that the Magistrates for a Culpa or neglect should be Lyable to the whole Debt which may be a great Sum. If the Action be considered not as a penal Action but for Damnage and Interest it should be only sustained in so far as the Creditor is prejudged so that the Debt being either recoverable and the Debitor in alse good case as before or being Bankrupt the time of the Charge the Magistrates may be denounced upon the Caption or censured for their Contempt but ought not to be Lyable for the Debt in solidum Scot Clerk D. 79. Davidson contra the Town of Inverness Eod. die THere being a Decreet of the Dean of Gild of Innerness against an Unfreeman Unlawing him in Three Hundred Pounds for Trading and a Suspension and Reduction being raised of the same upon that reason viz. That the Suspender dwelt without the Towns Jurisdiction And that by the Acts of Parliament Unfree-Traders may be charged to desist and to find Caution to that effect But the Town or Dean of Gild cannot proceed to process or unlaw them there being no such Act of Parliament to warrand it but only to Charge as said is and to confiscate the Goods D. 80. Forbes contra Blair Eod. die DOctor Forbes and his Spouse having recovered a Decreet against David Edgar The said David did grant a Disposition in favours of his Mother whereof the Doctor and his Spouse did intent Improbation and Reduction and after long dependence Certification was granted and Extracted But the Defender having given in a Bill craved to be Reponed pretending that the Certification was granted in Winter when the Defender being an Aged Woman and attending one of her Children being Distracted could not come in the time of a Storm and within five or six dayes after the Certification was granted she came and produced the Disposition The Lords before Answer whether they would repone against the Certification Ordained them to dispute upon the Reasons of Reduction viz. That the Disposition was inter conjunctas personas without an Onerous Cause and that the Condescendence was not relevant viz. That the Disponer had granted Bond for Aliment and Entertainment of him and the other Children to his Mother and for her Terce In respect the said Pretences were only patched up to colour the said fraudulent Disposition And that the said Disponer pendente lite and after Sentence could not in prejudice of the Pursuer give a Bond to be the ground of the said Disposition But if there were any ground of the said pretended Debts the Defender should have recovered Decreet for the same and though the Debt were without question the common Debitor contrare to the Act of Parliament could not make a voluntar Disposition in prejudice of the Pursuers Diligence to gratify and prefer another Creditor It was Answered That by the Act of Parliament the Reason viz. That the Right was granted without an Onerous Cause is only probable Scripto vel Juramento and that the Disponer not being inhibited the Defender might lawfully sibi vigilare and take a Right for a just Debt And by the Act of Parliament the Diligence that disableth a Debitor to give and a Creditor to take a voluntar Right is not a Dependence or a Decreet but Inhibitions and Hornings which are so publick that the Leidges may and ought to take notice of them The Lords were tender to repone against the Certification and yet they thought not good to take away the
is provided that in case of Redemption the said 7000 lib. should be given to her and her foresaids which being a provision introduced in her favours and in effect in lieu of the Estate and being so great may fix upon her a Passive Title as having gotten by her Father beside her Tocher so great a Sum which is not payable to her Husband but to her and her foresaids and therefore could not Renounce but with the burden of the said provision for her Relief The Lords Found That she ought to Renounce Reserving to her the foresaid provision as Accords Castlehill Reporter Gibson Clerk D. 277. Tutor to the Laird of Aitons Daughter eod die THE Tutor to the Daughter of the deceast Laird of Ayton having craved by a Bill that he might be warranted by an Order of the Lords to set the Pupils Lands for less Duties than were payed formerly seing the former Duty could not be gotten The Lords Tho they had granted the like desire in favours of other persons upon Bills thought upon better consideration that it was fit to refuse the said Bill seing upon such pretences Minors may be wronged by their Tutors Authority and the Lords have only a Jurisdictio contentiosa in relation to Processes or questions depending betwixt Parties but not a voluntar Jurisdiction or power in relation to Administration of private Estates And if the Tutors Deed in setting pupils Lands were warrantable the Law would secure him And therefore left him to do as he will be answerable Redford Reporter D. 278. _____ contra _____ eod die UPon a Report made to the Lords concerning a Decreet of the Commissars which was questioned upon Iniquity because it being urged that Caution should be Found in an Improbation the Commissar did not Order the Party to find Caution It was Debated amongst the Lords Whether Caution should be Found or Money should be consigned alsewell in Actions as upon Exceptions in Improbations And some were of the Opinion that Caution or Consignation should be in all questions of Improbation Whether by way of Exception or Action conform to the Act of Parliament Q. Mary 7. Parl. Cap. 62. And some of the Lords were of the Opinion that the Law being clear to that purpose Consignation should be wherever such Questions fall out either by way of Action or Exception But the contrary was asserted by others and they pretended Custom but nothing was instanced to verify the custom and tho it were it ought not to derogate to so clear a Law upon so good Grounds The Lords did not decide this point at this time D. 279. _____ contra _____ eod die UPon a Report made to the Lords concerning an Advocation upon that reason that there was a Competition in the case upon double Rights It was debated among the Lords Whether the cause being undoubtedly competent before the Inferior Judge the pretence that there was a competition of double Rights should be a Relevant Ground of Advocation And some of the Lords were of Opinion that in the general to Advocate upon that Reason it were hard seing Inferior Judges their Jurisdiction as to Causes competent before them is founded upon their Rights so that they have alse good Right to the same as to any other property And in Removings and Actions for Maills and Duties and others such real Actions when a Defence is founded upon a Right or when Parties compear for their Interest and produce Rights it may alwayes be pretended that the question is anent double Rights so that the Jurisdiction of Inferior Judges may be altogether evacuated And the Lords who have scarce time to decide Causes that are proper before them should be cumbered with Processes that may and ought to be determined by an Inferior Judge contrar to the Acts of Parliament and in special the 39 Act of Q. Mary her 6th Parl. And the 8th Act of His Majesties 1st Parl. 3. Sess Discharging the Advocation of Causes whereunto Inferior Judges are expresly appointed Judges But if it should be represented and appear that there is intricacie in such Causes wherein there may be question of double Rights the Lords in that case may Advocate But upon the pretence of double Rights as to which it may be there is no difficulty there ought to be no Advocation Yet it was urged by _____ that the Lords were in use to pass Advocations upon the reason foresaid And albeit the pretence of custome not being verified and tho verified being against Law ought not to be put in the ballance with express Laws founded upon good Reason and Common Law yet the Bill was past Redford Reporter D. 280. Gilchrist contra Murray 26. June 1675. IN a Process for payment of a Sum due by the Defender the Lybel being referred to his Oath and he having declared with a quality viz. That as he was Debitor so he had made payment partly in Money and partly in Commodities and Ware The Lords Upon Advising of the Oath Found That the same not being special as to the quality of Payment viz. How much was payed in Money and how much in Goods nor being special as to the quantity of the several Goods did not admit the same but if it were made special as to Money payed by him it would be sustained pro tanto And as to the delivery of Goods in satisfaction of the Debt It resolved in an Exception and ought to be proven Hamilton Clerk D. 281. Livingston contra Garner eod die A Bond being granted for payment of a Sum and thereupon the Granter having suspended in his own time and a Decreet of Suspension being recovered in his favours after his death his Son being of the same Name was Charged Denounced and taken with Caption for the same Debt The Lords upon a Bill Did Find That the Son ought to be free of the said Debt and in regard of the Chargers trincating and fraudful Practice they modified 40. lib. to be payed by him the one half to the Partie the other half to the Poors Box. Gibson Clerk D. 282. Langlands Supplicant eod die A Bankrupt having obtained a Bonorum by a Bill desired the Lords to dispense with his wearing the Habit in respect of an Attestation of two Persons that he had become irresponsal upon the account of Cautionrie and other Occasions mentioned therein which the Lords did Albeit some of their Number were of another Opinion and did urge that by the Act of Parliament such Persons being infamous and the Lords by an Act of Sederunt having Ordained that they should wear the Habit as is the Custom in all other Nations that they may be known to be such Persons the Lords neither could nor ought to dispence with express Laws and Statutes and that no respect ought to be had to the Attestation being emitted by privat Persons having no Authority and not cited nor sworn to that purpose and the pretence contained in the Attestation was most irrelevant Gibson Clerk D. 283. Birnie
and that the Pursuers Debitor was a person opulent for the time according to his quality and had sufficiency of Estate and Moveables otherwayes that might have satisfied the Pursuers Debt the time of the said last Contract and thereafter So that the said Contract being valide ab initio it could not be taken away upon pretence that thereafter the Husband became insolvent seing it cannot be said that the Husband did intend to defraud his Creditor or that there were any fraud upon his part It was Replyed That tho the case of Bankrupts and their fraudful practices mentioned in the said Act being so frequent did give occasion and Rise to the same yet it appears evidently by the said Act that it was intended that Debitors should not be in a capacity to give away any part of their Estate in prejudice of their Creditors to any person In sua far as the dispositive words of the Act are in these terms that in all Causes at the instance of a true Creditor the Lords will decern all Alienations and Rights made by the Debitor to any conjunct person without true just and necessary Causes and without a just price really payed the same being done after Contracting of lawfull Debts from true Creditors to be null without further Declarator And the said Act does not bear that all Rights made by Bankrupts should be Null it being hard to give a Character and definition of a Bankrupt So that diverse questions may arise anent the notion of Bankrupt and what Debitors should be esteemed Bankrupt and therefore for cutting off the same the Act is conceived in the Terms foresaid and annulls Dispositions made by Debitors without an Onerous Cause And the Lords by the Statute ratified by the said Act do declare that they intend to follow and practise the Laws Civil and Canon made against fraudful Alienations in prejudice of Creditors And by the Civil Law all Rights and Deeds made and done in prejudice of Creditors without an Onerous Cause are null and may be rescinded actione Pauliana And the Law doth presume praesumptione Juris that they are fraudulent being prejudicial to Creditors ex eventu re who are not obliged to say that they are fraudful consilio which is in animo and hardly can be proven As that point viz. That the said Contract was upon valuable considerations It is Replyed That the taking of the Fie from the Husband and giving the same to the Wife it 's a Donation as to the Wife in prejudice of the Creditor So that there is no Onerous Cause as to the Husband The Lords Upon Debate at the Barr and amongst themselves did Find that Debitors might dispose of a part of their Estate by way of Gift and without an Onerous Cause if they retain alse much and more than would satisfy their Creditors And therefore they Found the Defence Relevant that the Debitor had alse much Estate besides the Fie of the said Tenement as would satisfy the Pursuers Debt Actor Falconer alteri Steuart Monro Clerk Praesentia Some of the Lords were of the Opinion That the case being of so great consequence as to the preparative it was fit to be thought upon and urged these Reasons 1. That the Words and Letter of the Law appear to be clear against Deeds done by Debitors without an Onerous Cause 2. Tho our Law were not clear yet in cases of that nature when we have not a Municipal Law nor custom to the contrary we ought to follow tho not the Authority yet the Equity of the Civil Law which is received every where where there is no custom to the contrary Specially seing it is declared by the said Statute mentioned in the Act of Parliament 1621 That the Lords are to follow the Civil and Canon Law made against Deeds and Alienations in prejudice of Creditors 3. It is hard to put Creditors to dispute the condition of their Debtors the time of making Donations and whether they had effects and sufficiency of Estate to satisfy their Debt notwithstanding the said Deeds which may be unknown to the Creditors It being sufficient to say that the Deed was without an Onerous Cause and that the Debitor became insovent 4. If a Debitor should become insolvent ex post facto tho the time of the Donation the residue of his Estate might have satisfied the Debt It is more just and reasonable that a Donator who has a Lucrative Title should rather suffer ex eventu than a Creditor _____ did argue to the contrair D. 288. Bonars Relict contra His Representatives 2. July 1675. A Bill of Advocation being Reported of a pursuite at the instance of John Bonars Relict against his Representatives before the Town of Edinburgh for payment of 10000 Merks conform to a Bond granted by him The Lords did Advocate not so much in respect of the importance of the Cause the Town being competent Judges but because there was an Improbation depending before the Lords upon the same pursuite of the said Bond And contingentia causa non debet dividi and doth Found the Lords Jurisdiction to Advocat to themselves all Questions concerning the said Debt D. 289. Earl of Dundonald contra Glenagies and the Earl of Marr. eod die A Tack of the Teinds of Kilmaranoch being set by the Abbot of Cambuskenneth to Sir James Erskine for his Lifetime and for the Life-time of his Heir Male and after the decease of the Heir Male for the Lifetime of his Heir Male and two 19 Years thereafter The Earl of Dundonald having Right by progress to the said Tack pursued a SpulÈie of the Teinds It was Alledged That the Tack is expired And if the Earl of Dundonald will condescend and prove that the said Sir James had an Heir Male surviving the Defenders will offer to prove that two 19 years had expired since the decease of the last Heir Male. The Lords Found That the Pursuer should condescend upon an Heir Male and prove that he survived the said Sir James And if he should condescend and prove that the Defender ought to prove as said is that the Tack was expired And did Assign to the Pursuer and Defender to prove Respective D. 290. Mr. Henry Morison 3. July 1675. UPon a Bill against Mr. Henry Morison It was desired that in respect he was an Advocate and Member of the House he should summarly deliver certain Goods entrusted to him by the Complainer And It was Alledged for him That the Complainer ought to intent an Action in communi forma And the Interest that he had in the House as an Advocate should give him Right to any priviledge that belonged to an Advocate but ought not to put him in a worse case than other Subjects who could not be forced to defend upon such Bills And the practice that the Advocates should Answer summarly to Complaints against them is only in relation to their Trust and Office if they refuse to exhibite or deliver Writes entrusted to them And
And seing he is in dolo that he does not make use of it the Law doth justly provide that it may be comprised and used to that end which both in Law and Conscience he should have used for himself Et interest Reipublicae ut quis re sua bene utatur Legal Reversion competent to Idiots c. QVaeritur If a Fatuous Person or Idiot having Right to a Legal Reversion has the Benefit competent to a Minor to redeem after his recovery Answer It is thought not seing by our Law and Custom Minors before the Act of Parliament 1621. had not that benefit And by the said Act of Parliament it is given only to Minors Et Exceptio firmat Regulam c. And neither can Statutes be extended nor is there eadem Ratio seing the time of Minority is defined Whereas a Fatuous Person may live a very long time and it is hard that the Creditor should be in incerto all that time as to his Right and Dominium whether it be simple or redeemable Earl of Kincardin If Actions upon Contracts do prescribe against Fatuous Persons Answer They do not prescribe quia non valent agere and there is a Difference betwixt Prescription of Actions and of Legal and other limited Reversions which are only given for a certain time Because Jus Limitatum to a certain time producit limitatum effectum viz. A limited Action during the said time And it being just and the Compriser or Heretors Interest That the Reversion should be only limited and for the said time ne Dominium sit in incerto as said is he cannot be in worse case by Reason of the condition of the Party who has Right to the Reversion being Minor or Fatuous and in effect by a Reversion the Compriser or Heretors Right is Jus resolubile sub conditione potestativa and in such cases it cannot be pretended that the party could not satisfy the condition being Minor Fatuus Rights made by Dyvours QVaeritur Whereas by the Act of Parliament anent Dyvours Rights granted without an Onerous Cause in prejudice of Creditors are reduceible without Prejudice always of those who have acquired Rights from the Confident Person bona fide If the said Salvo should be extended to Comprysers Ratio Dubitandi That it appears hard that Creditors should be prejudged and be in worse case by the Fraud of their Debitor and their action being competent to them and nata immediatly after the fraudful Alienation should be taken away from them without their own Deed and yet the said Salvo being only in favours of Purchasers and favore Commercii and of these who bona fide contract with Persons that are not inhibited neither they nor their Authors should be excluded and Comprysers cannot plead the favour of Commerce seing they have not any Commerce nor Contract with a Confident Person but against their will use Execution against what they conceive doth belong to him which they do upon their own hazard and therefore ought not to be in better case than their Debitor and cannot have his Right but as he had it Et cum sua causa Fraudulent Rights in prejudice of Creditors A Debitor after expired Apprysings Dispones his Estate so incumbered by a Contract bearing an obligement that the Disponer should cause the Comprisers Dispone their Right or that it should be lawful to the Buyer to acquire them And after all should be purged the Buyer being obliged to pay the Sum thereinmentioned and accordingly having payed the same to the Seller Quaeritur If such a Transaction though it cannot be questioned upon that head that it is without a just price yet may be questioned upon the Act of Parliament as being without a necessary cause and of purpose to defraud Creditors who had not preferable Rights If a Person be in that condition that his Debt will exceed the value of his Estate and because his condition is not known and being a person of Credit he is not inhibited any confident friend knowing his condition if he should acquire a Right to his Estate in hail or in part for a price equivalent of purpose that he may have a Livelyhood Quaeritur if such a Right may be quarelled as fraudulent Ratio Dubitandi That it is for an Onerous cause And on the other part The Cause was not just nor necessary and it is presumed that the said course was taken in defraud of the Creditors Right a non habente potestatem THE King having Disponed Lands having fallen in his hands by Forefaulture and the Infeftment being past under the Great Seal the person to whom it was granted did decease before Seasin and thereafter another Donator procured a Right under the Great Seal and was Infeft thereupon Quaeritur If the second Gift may be questioned as being a non habente potestatem in respect the King was fully denuded in favours of the first Donator and nothing could be done more to denude him by himself and the taking of Seasin is not the Act of the King but of the Party And it could not be imputed to the Donator that he did not take Seasin being surprised by Death And double Rights are forbidden by the Law Rights ad Tractum futuri Temporis WHen a Tack or Annuity for certain years belongs to a person It does not belong to his Executors because it has Tractum futuri Temporis But if he have Right to it by the Escheat of another person it will belong to his Executors To consider what is the reason of the difference Right in Trust HIs Majesty having upon the Forefaulture of the Earl of Argyle given a part of the Estate to My Lord Lorn with the Title of Earl beside what he was Infeft in before And having given of Provision for the rest of the Children alse many Lands as would extend to the Rents alloted to them and having given out of the Estate a Liferent to the Lady Argyle and the rest of the Estate to the Creditors and having appointed the Lords of Session Commissioners for hearing the Creditors claims and determining the same and upon their competition for preference There is also a Right of the Estate settled upon Three Trustees to the longest liver of them Three without mention of Heirs and Assigneys being Three Clerks one of the Session one of the Council and one of the Exchequer to the uses foresaid and that the said Estate may be conveyed and alloted as His Majesty had Ordered Quaeritur If a Signature to the effect foresaid be habilis modus Answer It is thought not Seing there being no mention of Heirs the said Right granted to the Trustees if they should all Die will evanish albeit it be granted to them in Fee And therefore it is thought that the proper way were That a Commission only should be granted to the Trustees to Dispone to such persons as the Commissioners should appoint And as to Lands holden of the King Charters should be granted making mention of
the Right of Lands and in effect a reversion which is not prestable by Executors It was Answered that the said Bond tho on death-bed may and ought to affect the Executry seing in Lecto the Defunct might doe any deed to burden his Executry And his obligements at that time are effectual as to his Executry And Loco facti imprestabilis succedit interesse which is prestable by Executors And if he had in leige poustie granted a Disposition of Lands and thereafter having Infeft ane other in the same he had become incapable to fulfil the obligements thereof both his Heir and Executor would be lyable for damnage and interest and there is the same reason in this case the Defunct as to burdening and disposeing of his Executry being in the same condition as if he were in leige poustie The Lords before Answer thought fit to try if the Right was in trust and if there had been a former Back-bond which the Pursuers Step-Mother had destroyed as was informed and certain other circumstances Gibson Clerk D. 158. Lord Maxwel contra Tennents of Duncow 16. Feb. 1672 FOund that the Defence upon the Acts _____ against these who during the dependence of Process invade or wound the adverse partie who by the said Acts tyne the cause and forfault their interest in question being in effect penance and founded upon delinquency may be proven even before the Lords prout de Jure as to Order and Ratihabition which was alleadged could not be proven by Witnesses to import the loss of Heretage D. 159. Commissaries of Edinburgh contra the Commissaries of Breichen 17. Feb. 1672. THere being a competition betwixt the Commissars of Edinburgh and the Commissars of Breichen to which of them the confirmation of the Earl of Panmures Testament should belong the said Earl having taken a House and stayed a whole Session in Edinburgh with his Lady Children and Familie in order to the breeding of his Children and other occasiones and having died there The Lords preferred the Commissars of Breichen being Commissars of the place where the said Earl had his principal dwelling and his interest and Estate D. 160. Lady Milnetoun contra Sir John Whytfurd 20. Feb. 1672. IN the Process at the instance of the Lady Milnetoun against Sir John Whytfurd the said Sir John after the Process had depended long and all endeavours to delay and prevent a Decision having insisted upon a Reprobator upon that head that the Ladyes Wittnesses were corrupted It was Alledged and urged by many arguments that a reprobator upon the ground foresaid after sentence in foro contradictorio which is the great security of the People could not be proven but scripto vel Juramento And accordingly the Lords Found that it was only probable that way and yet this day the Lords having again ordained the cause to be Debated as to the point foresaid anent the probation of corruption after sentence obtained they retracted their former Interloquitor and Found that Reprobators upon the head foresaid are receiveable and probable prout de Jure after Sentence These arguments were urged both at the Barr and in the Debate among the Lords viz. That Sentences in foro are the great Security of the People and if these should be convelled upon pretence of such personal exceptions against Witnesses there should not be a period of Pleas and Process 2. Upon the consideration foresaid many exceptiones which are admitted before sentence even after Litiscontestation are not recieved after sentence v. g. exceptiones noviter venientes ad notitiam and ex instrumentis noviter repertis 3. Prescription being the great security of the People ne dominia sint incerta should be weakened if after Decreets in foro founded upon 40. years purchase the same should be convelled upon probation by Witnesses that the Witnesses upon whose Testimonie the Decreets proceeded were corrupted 4. There should be progressus in infinitum if the Testimonies of Witnesses should after sentence be reprobated by other Witnesses and after sentence in the Reprobator the Testimonie of the reprobatorie Witnesses should be reprobated by others sic in infinitum 5. Reprobatores were only in use when the Designation of Witnesses before they declare from their duelling and vocation and other circumstances was questioned as false which being obvious and easie to be knowen It is not to be presumed that the reprobatorie Witnesses will declare falsely anent such points which may be easily tryed But the Corruption of Witnesses being ane occult and unwarrantable practice it is not to be presumed that witnesses were present and conscious and the reprobatorie Witnesses may be suborned and declare falsely impune 6. Our Law is Jealous of Probation by Witnesses they being for the most part viles personae and yet habiles and Writes cannot be taken away by such probation and Sentences in foro are scriptura publica solennis 7. By our practique dicta testium cannot be questioned post sententiam tho by the comon Law and the Law of other Nations they may and there is less reason to admit personal exceptions contra testes to be proven by Witnesses 8. As to the Incommodum That a Door should be opened to Corruption if the Testimonies of Witnesses after Sentence should not be questionable upon that head It is easily Answered Seing Witnesses may be pursued Criminallie and severely Punished if they may be discovered to have been Corruped or false Actores Cuninghame Lermonth alteri MckenÈie Harper D. 161. Mr. James Reid contra the Lady Dundie Feb. 21. 1672. AN Infeftment granted to the Lady Dundie by her Husband in recompence of a former provision she had by her Contract of Mariage and which she had renounced was questioned by a Creditor who also was Infeft upon that ground that the Ladyes Right was base and tho Rights granted to Wives upon their Contract of Marriage or after Marriage when they have no provision or in recompence of former provisiones are sustained albeit base because the Husbands possession is the Wifes possession yet the Right in question ought not to be sustained upon that ground In respect the Husband was not in natural possession the Lands being lyferented by his Mother and by the Act of Parliament the possession whereupon base Rights are sustained is only to be understood of natural possession The Lords preferred the Lady and repelled the said Defence upon these considerations that Infeftments given to Wives in the cases above-mentioned are construed to be publick and are not persumed to be fraudulent And Wives are not in the condition of other Creditors who may perfect and make their Rights publict whereas Wives can do nothing themselves and it is to be presumed that Wives are provided by their Husbands So that these who are to acquire Rights from them ought to enquire if their Wives be Infeft specially seing since the Act of Parliament 1617 anent registration of seasings they may easily know the same Cuninghame c. and
by a Bill given in by a Widow Desireing that she may be allowed to intromet with the Cropt and Goods pertaining to the Defunct without hazard of vitious Intromission The Lords thought That such Warrands being Voluntariae Jurisdictionis and the Commissaries being entrusted for securing the Estate of Defunct persons to the nearest of Kin and Creditors and other persons having interest did Remit the Petitioner to the Commissars of the place Sir David Falconer Younger was for the Petitioner and subscribed the Bill D. 222. Meldrum contra Tolquhone 20. January 1675. IN a Declarator of Escheat at the instance of Meldrum contra Tolquhone It was Alledged That the Horning was Null because the Party was Charged only upon six days albeit he dwelt benorth the Water of Dee And by the Act of Parliament 1600. cap. 25. All Charges of Horning against persons dwell and benorth Dee should be upon 15. dayes at the least And by the 138 Act Parl. 12. K. Ja. 6. It is statute that in case any Denounciations of Hornings should be at the Mercat Cross of Edinburgh upon Charges upon unlawful and impossible Conditions the same and Horning thereupon should be Null And that there was a Decision in Duries Book in Anno 1625 that Hornings even upon Bonds against persons benorth Dee were Null It was Answered That the Act of Parliament in Anno 1600 was only in the case of Hornings upon Citations or Charges to find Law borrowes or for compearing before the Council as appears by the narrative of the said Act which doth interpret and regulate the dispositive Words of the Act. And that the Act of Parliament in Anno 1592. doth not militate in the case of Hornings upon a Clause of Registration seing after that Act until the said Act 1606 such Clauses that Hornings should be upon 6 dayes were not thought and de facto are not impossible And as to the practique It was Answered that there was a late practique in Anno 1664 upon a Debate in the Innerhouse in the case of Philorth contra Frazer Whereby it was Found That the Act of Parliament 1600. is to be understood in the case foresaid where Hornings are upon Charges of the nature foresaid for appearing before the Council and such like but not in the case in question and others of that nature where Hornings are upon Bonds and Clauses of Registration therein contained which do bind and cannot be questioned by those who do oblidge themselves The Lords considered that the narrative of the said Act doth clear the meaning of the dispositive words and there needed not to be a Law and remedy as to Hornings upon Clauses of Registration seing Parties could not help themselves as to Charges to compear before the Council and others of that nature without a Law But they were Arbiters and could make a Law to themselves as to Clauses contained in Contracts or Writes if they thought them grievous or impossible And that there appeared to be a singularitie in the case mentioned by Durie seing the Charge was given in Orkney upon 6 dayes which could not well be satisfied And therefore the Lords for the reasons foresaid did sustain the Horning Actor Hog and Thoirs alteri Falconer and Forbes In praesentia D. 223. Carfrae contra Telzifer eod die A Person being pursued as representing a Debitor upon that passive Title that he had behaved himself as Heir to the Defunct In sua far as being conveened at the instance of another Party he had proponed a peremptor Defence The Lords Found That the proponing of a Defence upon payment or such like was not such a Deed as could infer the Passive Title of Behaving unless it were adminicled with Intromission or otherwayes Nevoy Reporter Hamiltoun Clerk Vide 10 December 1674. D. 224. Chalmers contra Ferquharson and Gordon 22. January 1675. THE Lords Found That a Person being Pursued as Intrometter and having Alledged that before the intention of the cause she had obtained a Gift of her Husbands Escheat the said Defence is Relevant And that after Intromission there being a Donator confirmed before intention of the Cause or the Intrometter obtaining a Gift tho not declared there being no necessity to declare the same against her self that the same doth purge even Intromission before the Gift Some of the Lords were of another opinion upon that Ground that ipso momento that the parties intromet there is a Passive Title introduced against them which doth not arise upon the intention of the Cause but upon their own Act of behaving and Jus being semel quaesitum to Creditors cannot be taken from them except in the case of an Executor confirmed before the intention of the Cause against whom the Creditor may have Action And that there is a difference betwixt a Donator having declared and an Executor having confirmed In respect the Executor is lyable to Creditors but not a Donator and an Appearand Heir having become lyable by intrometting with Moveable Heirship and behaving as Heir his Intromission is not purged by a supervenient Gift seing his immixing is Aditio facto and there is eadem ratio as to Intrometters who are Executors a tort as the English Lawyers speak and wrongously And in effect by their Intromission adeunt passive and are lyable to Creditors Strathurd Reporter D. 225. Jean Maxuel contra Mr. William Maxuel eod die MR. William Maxuel Advocate being pursued at the instance of Jean Maxuel natural Daughter to Sprinkel for 5000 Merks Alledged due to her by Bond granted by the said Mr. William which she did refer to his Oath did give in a qualified Oath Declaring that he had granted a Bond to the Pursuer at the desire of her said Father but the same was never delivered and was so far from being effectual that by the express order of Sprinkel he was not to deliver the same to the Pursuer without his warrand and that he had given him order to destroy the said Bond in consideration that he was not satisfied with the Pursuers carriage and that he had left her a Legacy which the Defender had payed This quality was thought to be so intrinsick that his Declaration could not be divided so as to prove the granting of the Bond and not the Quality Specially seing the said Quality was adminiculate with Letters which the said Mr. William did produce which were written by Sprinkel to the same purpose Yet by plurality It was Found that his Oath proved the Lybel and Decreet was given against him Thereafter the said Mr. William obtained a Suspension upon that Reason that the Decreet was Extracted by favour of the Clerks not without precipitation after that he had applyed to the Lords and desired that the case might be reconsidered And that the Lords had Ordained the Decreet to be brought back and because the party refused they past a Suspension The case being debated in praesentia The Decreet in foro was obtruded and that it was just upon the matter seing
contra Montgomerie 29. June 1675. A Pursute for making up the Tenor of a Comprising was sustained in respect the Adminicles were most pregnant and in special the Executiones were yet extant and entire Monro Clerk _____ It is thought that much Cautione and tenderness should be used in Processes of the Nature forsaid for proving the Tenor of Compriseings seing Compriseings are to be considered either as Decreets or as Executions and in effect they are both upon the matter In respect the Messenger Decerns and Adjudges and Dispones the Lands and others comprised and therefore the same ought to be subscribed both by the Messenger who in subsidium doth that which the Partie ought to do and doth dispone his Estate in satisfaction of his Debt and by the Clerk of the Compriseing as a Decreet and the Tenor of Decreets cannot be proven but by Extracts And a Comprysing being as said is Processus executivus and ultimate execution it ought not to be proven but per relationem Nuncij and execution under the Messengers hands And it were hard that executiones should be made up by witnesses and probation of the Tenor Seing there may be a nullity in the same if they were extant And tho witnesses may remember they had seen executions they can hardly remember upon the precise tenor of all the words of the same And if the tenor of the executions might be made up there should be no security Seing Prescription which is the greatest Security of the People may be evacuated upon pretence that there was an interruption by the execution of a Summonds but that the same being lost is made up by proving the Tenor and by an Act of Parliment K. Jam. 6. Par. 6. cap. 94. It s Ordained That the Tenor of Letters of Horning and Executions thereof is not probable by Witnesses And there is parity if not more Reason as to Comprisings whereby the greatest Estates may be taken away by a Decreet for proving the Tenor. D. 284. Hall contra Murray 30. June 1675. ARrestment being upon a Decreet and the said Decreet being thereafter turned in a Lybel The Lords Found That the Decreet ceased to be a Sentence and the Arrestment thereupon is now of the nature of an Arrestment upon a Dependence and may be loosed Gibson Clerk D. 285. Dunmure contra Lutfoot eod die THE Lords in an Improbation Found as they had done formerly in diverse Cases That an Extract out of the Books of an Inferior Court does not satisfie the Production the question being of a Write registrate in the Books of the Canongate Newbyth Reporter D. 286. Stewart contra Riddoch eod die JAmes Stewart of Aberlednoch having obtained a Decreet Cognitions Causae against John Riddoch for implement of a Disposition granted by David Riddoch his Grand-father and thereupon having also obtained a Decreet of Adjudication the same was stopt upon a Bill given in by _____ Campbel of Tarririck pretending that he had a Right to a Contract of Mariage betwixt Alexander Riddoch and his wife as assigney constitute by the said Mr. Alexander in whose favours the Granter of the Disposition to Stewart was obliged by the said Contract to dispone to him the same Lands And the Assignation granted by the said Alexander Riddoch to the said Campbel being questioned as false The Lords thought fit to hear both Parties on their several Adjudications reserving Improbation of the said Assignation and with this Declaration that if the said Assignation should be improven the Decreet and Adjudication upon the same should fall Because there was a Competition in Diligence The Lords did wave the Debates in the Improbation being most as to that Point who should abide by the said Assignation as true seing the Assigney Campbel declared that his Name was filled up in the same without his Knowledge and was not concerned to abide by the same and Mr. John Drummond of Megginsh compearing as having a compleat Warrand and Commission from the said Mr. Alexander Riddoch who was in Barbadoes to prosecute the said Action which had been intented in Campbel's Name offered to abide by the said Assignation only as a Factor Some of the Lords thought that a Write being questioned as false there should be some person to abide by the same upon their hazard simply and not with such qualities seing the consequence and hazard of persons that abide by Writes questioned upon falsehood if the same should be improven is the great bulwark and security of the people against falsehood which doth encrease daily But this point was not decided D. 287. Clerk contra Steuart eod die A Husband by his Contract of Marriage having got the Right of the Fie of a Tenement of Land settled upon him his Wife having resigned the same for Infeftment to him and her and the Heirs of the Marriage whilks failÈiening his Heirs He and his Wife did thereafter enter in a Contract with another Sister of his Wifes who had Right to the equal half of the said Tenement as Heir portioner with her Sister by which Contract there was a mutual TailÈie with consent of the Husband and the Right of Fie that by the former Contract was settled upon her Husband as said is was disponed to the Wife in sua far as both the Sisters with consent of their Husbands were obliged to resign their Respective parts in favours of their Husbands and themselves in Liferent and the Heirs of the Marriage in Fie whilks FailÈieing in favours of the Wifes Heirs Which Contract was questioned by a Reduction at the instance of a Creditor of the Husbands upon that reason that the said Right of Fie granted by the said Contract betwixt the Husband and the Wife and her Sister was in defraud of the Husbands Creditors and null by the Act of Parliament 1621. In sua far as the Husband had a Fie of the said Tenement by the Contract of Marriage betwixt him and his Wife which might have been affected with Execution at the instance of his Creditors and the said Fie was given by the said late Contract to the Wife so that the Husband had only a Liferent In this Process It was Alledged 1. That the Act of Parliament did militate only in the case of Dyvors and Dispositions granted by them And 2. That the said Act of Parliament doth only rescind Alienations that are made without true just and necessary Causes and that the said Contract betwixt the Husband and his Wife and her Sister was made for a true and just Cause and the Fie of the said Tenement which the Debitor had was given away in respect of the Obligements of the said Contract in favours of the Husband the Pursuers Debitor which was as equal as to advantages for the Pursuers Debitor as they were for the other party seing both the Sisters their parts of the Tenement were provided in the same manner to the Respective Wives and their Husbands and the Heirs of the Marriage whilks failÈiening the Wifes Heirs
said Dumbar and his Relict for security of a small Debt due to the said Laurie 3. That John Wauchop did give to Dumbar for a Translation from Laurie only 300 Merks and did promise in case he should recover the said Debt to pay 200 Merks more of which 100 Merks was to be payed to the said Laurie And it cannot be thought that Dumbar would have given away so considerable a Sum the Bond and Annualrent of the said Sum extending to 100 lib. sterl for 300 Merks presently and 200 Merks upon the condition foresaid 4. It appeared by the Bond and Assignation that they were writen with one Hand and the Witnesses Subscriptions appeared to be all writen with one Hand 5. The Writer and Witnesses are obscure Persons and not known and the designation of them is so general that they could not be well found being designed Writers and Indwellers in Edinburgh and no otherwayes 6. It appeared by comparing other Papers writen by Dumbar both as to the Character and the Spelling that the said Papers being writen by Dumbar are the same Write that the Bond and Assignation is of 7. It appeared by some Papers subscribed by Davidson produced by Wauchop to astruct and approve that his Subscription to the said Papers is not like that of the Bond. Diverse Papers were produced being alledged to be Forged by Dumbar being Bonds granted by persons who were Dead and whereof the Writer and Witness were likewayes Dead which did labour of the same Grounds of Suspition and falsehood And albeit they were not declared to be false yet being questioned and a warrand being given by the Lords to apprehend Dumbar he had escaped and was Fugitive And the said Dumbar is lookt upon and is pessimae famae as a Falsary and a Forger The Lords were evil satisfied That their Macer should have taken a Right to and used such a Write But as yet have not Censured him In praesentia D. 386. Paterson contra MckenÈie 22. Novem. 1676. THE Defender in the Improbation of an Assignation transferred in in his favours being urged to abide by the same and having offered to abide by the same as given to him for an Onerous Cause and as true for any thing he knew It was Answered That Certification ought to be granted unless the Defender would abide by the same positively as a true Deed Seing otherwayes false Writes might be conveyed through many Hands and the using of the same might escape impune notwithstanding of the Act of Parliament against the users of false Writes if they should be allowed to qualify their abideing by the same in manner foresaid which is contrar to the very Notion of abiding by which imports a positive asserting the truth of the same Upon which Debate the Lords Considered the great inconvenients on either hand if a Right may be taken to false Writes and used impune whereas before any person take Right to the same they ought to inform themselves concerning the same and the Condition and Quality of their Cedents And on the other part if commerce should be obstructed so far as a Right should not be taken without hazard to Papers having no intrinsick nullity or defect that of falsehood being altogether extrinsick and which cannot be known The Lords in respect the Cedent who had made the Translation of the Write quarrelled was Living Ordained him to abide by the same simply And suffered the person who has now Right thereto to abide at the same with the foresaid quality But reserved to themselves at the advising of the Cause to consider what the said qualification may import in behalf of the User Actor MckenÈie and others alteri Falconer Haystoun Clerk In praesentia D. 387. Weir contra E. Bramford 24. November 1676. HIS Majesty and the Parliament having rescinded the Forefaulture of the late Earl of Bramford who had been Forefaulted the time of the Troubles for his Loyalty did so qualify the Act of Rescission and Restitution that albeit he had Daughters who by the Law would have been Heirs of Line yet the Estate was settled by the Parliament upon his Grand-child Son to the Lord Forrester who had Marryed one of the Daughters Mr. William Weir having Right by Assignation to a Debt of 5000 Merks due by the Earl of Bramford to Patrick Ker one of the Grand-children of the said Earl and a Decreet being obtained for the said Debt against Edward Ruthven the Lord Forresters Son as having succeeded in the said Estate and being bonorum possessor and having Right as said is to said Estate ought to be Lyable passive to the Burden The Lords by the said Decreet Declared that the Estate should be Lyable and thereupon Adjudication having followed against the said Edward of a part of the Estate and Infeftment upon the same the said Edward did intent Reduction of the said Adjudication upon that Reason That the said Decreet against Edward Ruthven whereupon it proceeded was Extracted wrongously and not conform to the Minuts and Interloquitor which were in these Terms that the Estate should be Lyable to the Debt but not that the said Edward should be decerned to pay as the Decreet bears And that there could be no Adjudication against the said Edward who was not Heir to the said Earl but there ought to have been a Decreet and Adjudication against his Heirs of Line being charged to enter Heir Upon Debate among the Lords some were of the Opinion and did Represent that there could be no Adjudication against the Heirs of Line nor Decereet Cognitionis causa seing they could not be charged to enter Heir in special to that Estate which by the Act of Parliament did not belong to them but was settled upon the said Edward as said is And that the said Decreet against Edward was Disconform to the Lords Interloquitor Seing it was not intended by the said Decreet that the said Edward or any other Estate of his should be Lyable to the said Debt It being expresly declared in the said Decreet that he should be free of personal Execution And the said Decreet was but in effect a Decreet Cognitionis causa And therefore behooved to bear the Decerniture foresaid that he should be decerned to make payment which was only dicis causa to the effect Execution might follow by Adjudication And by the Summonds whereupon the Decreet proceeded it was only craved that the Estate should be affected And by the Adjudication Bramfords Estate was only affected and the Adjudger was content to declare that he should affect no other Estate Yet some of the Lords were of the Opinion That the Decreet not being in these Terms that the Lords decerned Cognitionis causa to the effect Execution might follow against Bramfords Estate It was in Arbitrio Judicis to sustain the Decreet to be a Ground of Adjudication or not And that Mr. William Weir having been accessory to the Appeals at the instance of Callender from the Lords of Session deserved no favour