Disposition in which there was an expresse Reservation of the Ladyes Liferent so that the Back-bond could import no more then securing of that Liferent The Pursuer answered these words conform to the Disposition were set upon the Margin of the Tickit which was all written by the Defenders hand and might have been added ex post facto 2. The Tickit behoved to import more then the Liferent because the Liferent was fullie and clearly reserved and oftimes repeated in the Disposition so that Clause had been frustrat Thirdly The oblidgment to deliver the Back-bond to the Ladies Husband after her Death could not be understood to be only in relation to her Liferent which and the Husbands interest should cease by her Death The Lords found the Tickit sufficient to instruct Trust but because the Terms of the Trust were not clear They before answer in Relation to the Probation of the Terms thereof Ordain the Parties to Compt and Reckon upon all Sums due by the Lady to the Defender in contemplation of the Trust that the same might be allowed and satisfied to the Defender before he be denuded Iames Slumond contra Wood of Grange Eodem die JAmes Slumond having charged Iames Wood of Grange to pay a Sum wherein he was Cautioner for the Laird of Balcaskie to Williiam Smith merchant in Edinburgh who constitute Richard Potter Assigny who transferred the same to the said Iames Slumond and Suspends The reason of Suspension was because this Bond was payed and retired by Balscaskie the principal Debitor who took a blank Translation thereto from Potter the Assigny which Translation with the Bond it self were surreptitiously taken out of his Coffer by Iames Hay who filled up this Chargers name therein likeas the Suspender produced a Declaration of Potter that the Sum was payed â—o him by Balcaskie and therefore the Suspender craved that the Oaths of this Charger the said Iames Hay and Potter and also the Witnesses who were present at the payment of the Sum might be taken before Answer Which the Lords granted albeit the Charger had the Translation for an oneâ—rous cause Children of Monsual contra Laurie of Naxweltoun February 14. 1662. THE Children of the Laird Monsuel as Executor to their Father pursues Laurie of Maxwelltoun for a Sum due by him to the Defunct who alleadged Compensation upon a Debt due by the Defunct Assigned to the Defender by the Defuncts Creditor after the Defuncts Death and intimat before any Citation or Diligence at the instance of any other Creditor The Pursuer replyed that Debt compensed on cannot take away this Debt pursued for solidum because the Defender as Assigny can be in no better Case then his Cedent and if he were now pursuing he would not be preferred fore his whole Sum but only in so far as the Testament is not yet exhausted or other prior Diligence done for an Executor having but an Office can prefer no Creditor but according to his Diligence much less can any of the Defuncts Debitors by taking Assignation from any of the Defuncts Creditors prefer that Creditor whose intimation is no Legal Diligence The Lords found that the Defender could be in no better Case then the Cedent and could have only compensation in so far as the Inventar was not Exhausted or prior Diligence used they found also that a Decreet against a Defender for making arrested Sums forthcoming at the Instance of an of the Defuncts Creditors was null because the Executor Creditor was not called thereto albeit Decreet was obtainedâ— at the Instance of that Creditor against another Executor in a former Process Lady Muswal Elder contra Lady Muswal Younger February 15. 1662. IN a Contention betwixt the Lady Muswall Elder and Younger upon two Annualrents out of one Barony The Lords Ordained the first Annualrenter to do Diligence within twenty days after each Term that after that time the second Annualrenter might do Diligence or otherwise at her option Ordained the Lands to be divided conform to the Rents Proportionably as the two Annualrents The second Annualrent and the first to take her choise Laird of Pitfoddels contra Laird of Glenkindy Eodem die IN the Revieu of a Decreet in one thousand six hundred fiftie nine at the Instance of the Laird of Pitfoddels against the Laird of Glenkindyâ— in which Decreet Glenkindy Cedents Oath having been taken that the Cause of the Bond was for an Assignation to a Wodset which was excluded by Apprizing after Report whereof Glenkindy the Assigny alleadged that his Cedents Oath could not prejudge him and it being Answered that he made no Objection before the Oath taken neither could make any Just Objection because the Oath of the Cedent any time before Intimationâ— is sufficient against the Assigny Glenkindy Answered that his being called in that Process as Assigny and compearing and Insisting as Assigny was an intimation which was before taking of the Oath which was found Relevant in the said Decreet and now rescinded by the Lords upon this consideration that the Citation being ad hunc offectum to instruct the cause of the Bond the insisting in that pursuite could not be such an intimation as to exclude the Cedents Oath Earl of Bedfoord contra Lord Balmirino February 18. 1662. THE Earl of Bedfoord for satisfaction of his Tocher due by his Father in Law the deceast Earl of Sommerset caused Adjudge in the name of a Person intrusted all Right compent to the Earl of Summerset of the Estate of Iedburgh and being Assigned to the Adjudication pursues the Lord Balmirino for denuding himself of two Apprisings of the Estate of Jedburgh conform to three Back-bonds produced granted by umquhile Balmirino to Summerset acknowledging that he had acquired Right to these Apprysings with Summersets own Money and therefore oblidged him to denude himself thereof The Defender alleadged that his Father being intrusted by the late Earl of Summerset to acquire the Estate of Iedburgh and having the Fee thereof in his Person the Defender is not oblidged to denude himself untill he be Re-imbursed and satisfied of all Sums of Money which after the said Back-bonds he payed for Summerset or advanced to Summerset which can only be accompted to have been in Contemplation of the Trust and is particularly so exprest in Summersets Letters produced bearing that Balmirino should be satisfied of what was due to him out of Tiviotdale whre the said Estate of Iedburgh lyes The Pursuer answered non relâ—vat against him as a singular Successor 2dly Non competit by way of Exception but the Defender hath only Action therefore especially this Trust being fidei-comissum which is a kind of Deposition in which there is neither Compensation nor Retentation competent 3dly there can be here no Compensation because the Debt is not Liquid The Defender answered his Defense stands must Relevant which he founds not upon Compensation but upon the Exception of Retentation which is competent in all Mandats and Trusts by which as there is a
when the adherence is pursued upon the account of malicious desertion only and where there is no question of the Nullity and lawfulness of the Marriage the inferiour Commissars may decide in the samine 3. You are to proceed in rebus levibus not exceeding fourty pounds upon the Pursuers Claim without necessity of a libelled Summons the Defender being alwayes cited at several times by two distinct Warrands and Summons to that purpose And the case foresaid where the subjâ—ct is Leve not exceeding the said sum you are to proceed in manner foresaid whether the Defender be pursued upon his own Deed or representing any other Person his predecessors in rebus levibus and in Cases of the nature foresaid If the Claim be referred to the Defenders Oath and the Defender appear and be content to depone presently you are to take his declaration upon the same And if the Defender desire to see and be advised with the Claim ye shall give him a short time to that purpose If the Claim be referred to the Defenders Oath and he appear not himself he is to be warned again pro tertio and cited personally to give his Oath with certification he shall be holden as confest In such cases of small moment if the Claim be not referred to the Parties Oath nor verified inâ—ranter and the Defender appear you are to give a short time to him if he be conveened upon his own Deed to see the Claim and answer verbo And if he be conveened as representing any other person as Executor or Intrometter or otherways you shall assign a time to the Defender to qualifie and give in his Defenses in Writ 4. In Causes of greater moment exceeding fourty pounds and in Arduis wherein there may be difficulty you are to proceed upon a Libelled Summons in the same manner as is prescribed in the Cases above-mentioned except only that at your discretion you may assign a longer time to the Defender to give his Oath if the Libel be referred thereto and to answer verboâ— or to qualifie and give in his Defenses in writ when the Libel is to be proven otherwise and the Defender is conveened either as representing another person or difficulty or importance of the case doth require that the Dispute shall be in Writ 5. You shall be careful that your Clerks shall have and keep on Book for all the ordinary Dyets and Acts and also another Book foâ— Acts of Litiscontestation either made in absence or parte comparente wherein it shall be set down as shortly as can be the substance of the Libels and Alleadgences Interlocutors and Litiscontestations thereupon which Record shall be sufficient without necessity either for extracting the same or of Registration or extracting an Act of Litiscontestation ad longum except either of the Parties shall desire an Act to be extracted ad longum upon the Parties Charges who shall desire the same 6. Your Clerk shall keep a Register of Decreets of whatsoever nature but so that in cases of small moment within fourty pounds the said Decreet shall be recorded as shortly as can be 7. If in any Process whatsomever the time of Litiscontestation or after the Interlocutor is pronounced and when either a Term is assigned for proving the Libel or any alleadgance or the Judge having pronounced Interlocutor verbo or a Signature being made in Writ is about to assign a Term the Defender shall pass from his compearance or any time thereafter post Litiscontestationem Nevertheless Litiscontestation in all such Processes shall be holden and esteemed to be made parte comparente And in like manner if the Defender at Sentence shall pass from his compearance the Sentence nevertheless shall be given out against the saids Defenders as compearing 8. Ye shall be careful that your Summons be execute alwayes by a sufficient man before two Witnesses at least And that the same being returned and indorsed be keeped by the Clerk in case the execution be questioned and that ye are not to stay the proceeding of the principal Cause upon offer of Improbation of the execution and if any execution shall be found false and Improven and if it shall be found that any of your Advocats Procurators or their Servants or Agents or other Persons having interest in your Courts have written or caused write the saids executions or has used the same and knowing them to be false or are otherwayes accessory to the said folshood they shall be declared uncapable of any Office Trust Interest or Practice within the said Court without prejudice of such further Censure and punishment as may be inflicted for the Crime of falshood and upon the contriver or user or false Writs 9. Ye shall direct Precepts for Summoning of Witnesses to compear before you to be Witnesses in Causes under such pecunial pains as ye shall think expedient according to the value of the Causes and quality of the Person that bees Summoned And if the Witnesses contemptuously disobey the fines and mulcts to be uplifted by your Officers and they to have power to poind for the samine And the pains shall be applyed the one half for your own use and the other half to the poor And if the Witnesses compear not for the first Summons the Party to have Summons against the Witnesses not compearing under greater pecunial pains to be applyed at your discretion or to raise Letters upon deliverance of the Lords of Session for compelling them to compear under the pain of Horning as you shall think expedient At the examination of Witnesses your selves shall not fail to be present excluding all others 10. You shall suffer none of the Advocats in their procuring to use frivolous Alleadgances and if they do sharply to reprove them therefore and in case of not amending for reproof to proceed to pecunial pains and if they persist to deprive them 11. In the advising of Processes ye are not the use the advice of any Procurator or Advocat or consult with them thereanent neither admit of them to be present at the advising of the same 12. Ye shall tax the expenses of all pleas of Causes where Sentence is obtained before you and that right highly And shall insert the same in the principal Decreet or Sentence And the Precept to be directed out for executing of the Sentence shall contain Poinding as well for the saids expenses as for the principal 13. Ye may direct your Precepts to Officers of your Commissariot or Officers of Arms or to the Officers of Provost Bailzies of Burghs at the desire and option of the Party If any Person shall deforce your Officers in execution of your Precepts ye may be Judges to all such Deforcements and inflict the like pains as by the Law may be inflicted for deforcing of Officers of Arms excepting only the loss of Deforcers their Escheat Without prejudice to the Person concerned to pursue for the same upon the Deforcement of your Officers before the competent Judge 14. If any
it is a Rule with us that the Cedent cannot Depone in prejudice of the Assigney unless the Charge be to the Cedents behove and we have no Exception whether it be gratuitous or onerous but the most part were of opinion that in gratuitous Assignations the Cedents Oath should prove because an Assigney is but Procurator in rem suam and doth not proceed upon his own Right but utitur jure authoris and therefore albeit for Commerce our Custom hath not allowed the Oath of the Cedent in prejudice of the Assigney Yet the case in a gratuitous Assignation hath neither been Debated nor decided and therefore in it the Cedents should be sufficient seing it cannot be presumed that he who voluntarly gifted will swear to his Assigneys prejudice and that truely the Cedent is Party and the Assigney pursues but as Procurator in rem suam And seing we have no Law regulating this case equity and expedience ought to rule it but in equity no man can put his Debitor in a worse condition without his consent either as to the matter or as to the manner of Probation and in expedience the excluding of the Cedents Oath in this case opens a way for Fraud that after Debts are payed they may be assigned even freely and the Debitor is excluded from his Probation of the payment The Lords before answer Ordained the Assigneys Oath to be taken whether Assignation was for a Cause onerous or not Bruces contra Earl of Mortounâ— Eodem die BRuces pursues the Earl of Mortoun for payment of a Bond who alleadged that the Bond was assigned by the Defunct and the Assignation intimat and a Decreet obtained against him thereupon The Pursuers answered that this was jus tertij to the Defender who could not Dispute the Assigneys Right The Defender answered that it was exclusio juris agentis The Lords Repelled the Defense as being super jure tertij and decerned but ordained Suspension to pass without Caution or Consignation that the Assigney may be called and Dispute his Right Gideon Murray contra Iune 17. 1665. GIdeon Murray having obtained Decreet against for certain Merchant Ware wherein he was holden as confest and thereafter reponed and the Decreet turned in a Libel The Receipt of the Goods was found probable pro ut de jure and was accordingly proven and the Cause being concluded and the Depositions advised It was alleadged for the Defender first that he produced and instantly verified that the Pursuer had granted him a Bond after the furnishing of the Account of a greater sum which must be presumed to have included satisfaction of the Accompt 2ly The Decreet was more then three year after the furnishing and so was not probable by Witnesses but that manner of Probation was prescribed by the Act of Parliament The Pursuer answered to the first that both those Exceptions were competent and omitted and now after Probation taken there was no reason to sustain that alleadgence for after Litiscontestation no new exceptions can be admitted unless they be instantly verified and emergent or at least new come to knowledge as this is not for it was obvious being founded upon so known a Law as to the Prescription and as to the other it is but a weak presumption no way relevant unless the posterior Bond had exprest to have been after Compt and Reckoning The Defender answered that the Lords might ex nobile officio repone Parties to Defenses instantly verified after Litiscontestationâ— and albeit they ordinarly repone them when the Exceptions are emergent or new come to knowledge yet in other Cases ex officio they may as when there is so pregnant a presumption concurring 2ly Albeit Prescription hinder Pursuits active Yet seing the Defender was Creditor by Bond in a greater Sum. The Pursuer needed not pursue for the Accompt quia intus habuit and the other Party might have compensed upon the Bond and therefore as in the Civil Law in debitis naturalibus non civilibus licet non dat actionem dat tamen exceptionem so here the Pursuer may except upon account after three years The Lords found the presumption not Relevant and found that the manner of Probation being prescribed it could not be made use of either by Action or Exception albeit there was a compensation competent yet it befell not ipso jure seing it was not liquid but liquidable by the other Parties Oath But as to reponing in this state of the Process though many of the Lords were in the contrary yet seing the exception was but a Prescription which is but by positive Law and odious so that the Pursuer might as well have craved to be reponed against the Prescription as the Defender against his omission of a palpable Defense yet in respect of the Prescription and that the Party was poor the Lords Reponed Christian Braidie contra Laird of Fairny Iune 21. 1665. CHristian Braidy Relict of Iames Sword having Inhibite George Glassfuird upon his Bond pursues a Reduction of a Disposition granted by George to the Laird of Fairny of certain Lands as being done after her Inhibition Fairny having produced the Disposition it bear to be Holograph whereupon it was alleadged that it was null by the Act of Parliament requiring all Writs of importance to be subscribed before Witnesses and this Disposition wanted Witnesses The Defender offered to prove it was Holograph The Pursuer Replyed that the question being de data not that it was subscribed but when it was subscribed whether prior or posterior to the Inhibition Witnesses could not be received where the question was not against the granter of the Writ or his heir but against a third Party The Lords before answer did appoint Witnesses to be examined omni exceptione majores who being now Examined both Deponed that they saw the Disposition subscribed and that it was long before the Inhibition It was then alleadged that this being done but before answer it was intire to Discuss the Relevancy of the alleadgence whether a Date might be instructed by Witnesses 2ly Albeit Witnesses omni exceptione majores were receivable for such an effect that these Witnesses were not such the one being but a Town Officer and the other Procuratorfiscal of a Sheriff Court especially seing there were strong presumptions of fraud as that nothing followed upon this Disposition that it remained Clandestine for several years that thereby the Disponer becoming Bankrupt had excluded some of his Creditors and preferred others and that there was no penuria testium seing both thir Witnesses assert they saw it subscribed and the one Deponed that he Dited it so that their Names might easily have been insert and therefore it must be thought it was done for some Fraudulent intent as to be of an anterior Date to the Inhibition and therefore in such a case the Witnesses should be Persons of Fame and known Reputation It was answered that the Witnesses adduced were sufficient seing they were above exception Frst because
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 Lesly
Consideration the Litigiousness and Malitiousness of some Suspenders who upon frivolous and unjust Reasons and Grounds purchase Letters of Suspension and Advocation and will not at the Day of Compearance nor on any other of the Days appointed for Production of the saids Principal Letters of Suspension and Advocation produce the respective Letters aforesaid but keep the famine up of purpose to trouble vex and put to farther Charges and Expenses the Chargers and Parties Persuers in the Principal Cause Advocated to the saids Lords Therefore the saids Lords ordain the several Sums of Money following to be payed by the saids Suspenders and Purchasers of the saids Letters of Advocation to the Chargers and Parties Pursuers in the Principal Cause Advocated to the saids Lords And that upon their purchasing of Protestation or Act of Remit against the said Suspenders and purchasers of the saids Letters of Advocation viz. If the sum charged for be an hundred merks or within the same the sum of 8. lib. Scots and if the sum be above 100. merks or not a liquid sum the sum of ten pounds money foresaid And for every Remit the sum of 15. lib. Scots and ordains an Act to be extended hereupon in manner foresaid ACT for granting Commissions to Debitors who are sick or out of the Countrey on the Act Debitor and Creditor Iuly 31. 1661. THE Lords of Session considering that in prosecution of the Act of Parliament of the 12. of Iuly last anent Creditor and Debitor such Debitors as are far off the Countrey or are or shall be disabled by Sicknesse to come here to take the benifite of the Act will be thereby prejudged of the benefit thereof if some course be not taken to prevent the same They do therefore impower the Lord President or the Lord Register or any two of the Lords of Session upon Petitions and sufficient Attestations of the Sicknesse of any Debitor or of their being forth of the Countrey to give Commission during this ensuing Vacation to such Persons in the Countrey as they shall think fit to receive the Oath and Declaration of the Debitors conform to the said Act and to report the same betwixt and the day of November next to come to the Clerk of Register or his Deputs Clerk to the Bills to be Recorded with others of that nature ACT discharging Lessons the last moneth of the Session November 28. 1661. THE same day the Lords considering that in the end of the Session the giving way to Young-gentlemen to give proof of their Literature by making publick Lessons is greatly prejudicial to the Leidges that time which is appointed for hearing and discussing of Interloquitors being taken up with the saids Lessons Therefore the Lords renews a former Act made to the effect after-specified in Anno 1650. And of new ordains in all time coming That any who are to make their Lessons shall come and make them at such times of the Session as the hearing of them be not prejudicial to the administration of Justice and that none shall be heard to make such Lessons any time the last moneth of of the Session ACT anent Executors Creditors February 28. 1662. THE which day the Lords of Councill and Session considering the great confusions that arises amongst the Executors of Defunct Persons and prejudices sustained by many of them in prosecution of their respective diligences against the Executors of Defunct Persons and otherways by obtaining the saids Creditors to be themselves decerned Executors Creditors to the Defunct in prejudice of other Creditors who either dwelling at a far distance or being out of the Countrey or otherways not knowing of the death of their Debitors are postponed and others using sudden diligence are preferred In respect whereof and for a remeid in time coming The saids Lords declare and ordain that all Creditors of Defunct Persons using Legal diligence at any time within half a year of the defuncts death by citation of the Executors Creditors or intrometters with the Defuncts Goods or by obtaining themselves decerned and confirmed Executors Creditors or by citing of any other Executors confirmed the saids Executors using any such diligence before the expiring of half a year as said is shall come in pari passu with any other Creditors who have used more timely diligence by obtaining themselves decerned and confirmed Executors Creditors or otherwise It is always declared That the Creditor using posterior diligence shall bear a proportional part of the charges wared out by the Executor Creditor first decerned and confirmed before he have any benefit of the Inventarie confirmed and that it shall be lawful to the saids Creditor to obtain himself joyned to the said Executor and ordains these presents to be insert in the Books of Sederunt and to be Proclaimed at the the Mercat Crosse of Edinburgh ACT anent granting of Bonds be appearand Heirs whereupon Apprysings or Adjudications may follow in prejudice of the Defuncts Creditors THE said day the Lords of Council and Session taking to their consideration the manyfest Frauds and Prejudices done by appearand Heirs to the Creditors of their deceast Fathers or other Predecessors in their just and lawful debts Therefore and for preventing any such fraud for the future the saids Lords declare That if any appearand Heir shall grant Bonds whereupon Adjudications or Apprysings shall be deduced to their own behove or that the saids Apprysings or Adjudications shall return before or after the expyring of the Legal Reversion in the Persons of the saids appearand Heirs or any to their behoves In either of these cases the saids Apprysings or Adjudications shal no ways defend them against their Predecessors Creditors but that they shall be lyable as behaving themselves as Heirs to their predecessors by intromission with the Rents of their Estates so Adjudged and Apprysed nor shall it be lawful to them to renunce to be Heirs after such intromission and ordains an Act to be made thereupon and to be registrate in the Books of Sedernut and to be published at the Mercat Cross of Edinburgh ACT anent Advocats Expectants THE said day the Lords of Council and Session understanding that the greatest number of the Advocats and Expectants admitted since the first of Ianuary 1648. years Are deficient in paying of Dues to the keepers of the Box for the Advocats to wit twenty merks for every Advocate and ten merks Scots for every Expectant to the prejudice of the Box appointed for the poor and others their publick affairs Therefore the said Lords ordain all Advocats and Expectants admitted since Ianuary 1648. who are deficient in payment of the saids dues and all others who shall be admitted and receive the said respective priviledges in time coming to pay the saids dues to the keeper of the Box for the time And ordains Letters of Horning and Poynding upon sex days to be direct against the deficients upon a subscribed Roll by the Thesaurer and ordains no suspension to passe but upon consignation ACT discharging
also because their Service the only ground of the Decreet was Reduced in Anno 1656. wherein there was an Act of Litiscontestation now wakened The Defender alleadged he got wrong in the said Act because he having proponed a Defense upon the Pursuers behaving themselves as Heirs no wayes acknowledging their Minority he alleadged they behoved to prove the Reason as well as the Exception seeing they were both consistent yet the Act ordained him to prove his Defense of behaviour but did not ordain them to prove their Minority The Lords found this alleadgence relevant It was further alleadged that the Reduction of the Pursuers retour is not competent against this Defender to Reduce his Decreet because the said Reduction was long posterior to his Decreet and he was not cited to the Reduction The Pursuers answered they needed call none to the Reduction of of their Retour but the Judge and Clerk and Inquestâ— and though the Defenders Decreet was anterior they did not know the same having been obtained when they were within twelve years of age and never charged thereupon before the Reduction of their Retour and so they never knew it nor were oblieged to know it The Lords repelled this Defense and sustained the reason of Reduction unless the same were elided by the said Defense of behaving as Heir Thomas Iack contra Fiddess Eod die EODEM die Thomas Iack pursues Fiddess alleadging that Fiddes having given him in custody the sum of five hundred merks in Anno 1650. by a Ticket produced bearing To be keeped by him with his own upon the Deponers hazard and that the Pursuer for his security did thereafter go to Dundee and took his Goods thither where he lost the said sum and all his other Goods by the English taking the Town by storm and plundering it yet Fiddess conveened him before the English Officers at Leith who most unjustly decerned him to pay the sum and put him in Prison till he was forced to give Bond for it and thereafter payed it unto this Defender his Assigney who concurred with him and knew the whole matter and now craved repetition condictione indebiti The Defender alleadged Absolvitor because the Pursuer made voluntar payment and so homologat the Decreet and never questioned the same till now The Pursuer answered it was no homologation nor voluntar he being compelled to grant it and expected to remeid from the English Judges with whom the Officers had so grear power neither could this be counted any Transaction seeing the whole sum was payed nor any voluntar consent nor homologation being to shun the hazard of Law So that though these Officers had been a Judicature if in obedience to their Sentence he had payed and after had Reduced the Sentence he might have repeated what he payed much more when they had no colour of Authority The Lords Repelled the Defense of Homologation It was further alleadged for the Defender Absolvitor because he offered him to prove he required his Money from the Pursuer before he went to Dundee and got not the same and it was his fault he took it to Dundee being a place of hazard The Pursuer replyed that after the said Requisition he made offer of the Money and Fiddes would not receive the same but continued it upon his hazard as it was before The Lords Repelled the Defense in respect of the Reply and because the Defense and Reply were consistent ordained the Parties to prove hinc inde the Pursuer his Libel and Reply and the Defender his Defense Weymes contra Lord Torphiohan Iuly 25. 1661. LADY Mâ—ray Iean Elizabeth and Katharine â—â—ymes pursue the Lord Torphichane alleadging that their Deceased Sister Dam Anna 〈◊〉 having a Wodset of 20000. Merks upon the Barrony of Errot granted a Bond of Provision thereof to her Daughter Iean Lindsay thereafter Lady Torphichane and to the Heirs of her Body which failzing to return to the saids Pursuers with an obliegement that her said Daughter should do nothing to prejudge the saids Heirs of Tailzie which Bond was delivered by the Earl of Weymes to the Defender then Husband to the said Iean Lindsay who oblieged himself to make the same forth-coming to all Parties having interest as accords Yet thereafter during the Marriage the said Iean Lindsay entred Heir to her Mother and she and the Defender uplifted the Wodset sum passing by the Bond of Provision which sum being in place of the Wodset and unwarrantably uplifted by the Defender contrair the Bond of Provision known to himself which he was oblieged to make forth-coming he ought to refound the sum The Defender answered that the Libel is no wayes relevant for if his Deceast Lady Iean Lindsay being Feear of the Wodset did uplift the same and contraveened the Bond of Provision nihilad eum who is but a singular Successor having Right from his Lady by Contract of Marriage whereof there was a minute at the time of his Marriage expresly disponing this sum without any mention â—â—knowledge of the Bond of Provision and albeit he knew the fame after his Right nihil est And as for his Ticket it can work nothing though the Band of Provision were now produced it being but a Personal Oblidgment can oblidge none but his Ladies Curators or Successors and if they will alleadge that he is either Heir or Successor Relevant and his Ticket to make it forthcoming as accords nihil novi Iuris tribuit The Pursuer Replyed That albeit a singular Successor for an onerous cause might have uplifted the Wodset and been free yet the Defender being as the same Person with his Ladie and having no onerous cause but his Contract of Marriage wherein there was a plentiful Tochar of 20000. lib. provided to him besides this and having known the Band of Provision before the uplifting of the Sum and so particeps fraudis he is lyable to make the Sums received by him forthcoming by the Act of Parliament 1621. And also by the Common Law in quantum est accratus alterius dispendio The Lords found the Lybell and Reply relevant and approven and therefore decerned Torphichine to refound the Sum. William Ker contra Parochiners of Cardine Iuly 26. 1661. WILLIM KER as Executor confirmed to Umquhile Mr. Andrew Ker his Father pursues the Minister and Parochiners of Cardine for intrometting with his Fathers Steipend of the Kirk of Cardine in Anno 1652. and 1653. And for the Annatine 1654 Because his Father died on the 22 of November 1653. The Defenders alleadged absolvitor because he being Collegue Minister placed with the Defuncts consent and the Defunct being Suspended by the Presbetrie he got Right to these Years Stepends and obtained Decreet against the Heritors and uplifted conform and so was bona fidei possessor cum titulo 2. He offered him to prove by an Act of Presbytrie that at the time of his entrie he was provided to eight hundred merks of the Defuncts Steipend by the Defuncts own consent And as for the
because he represents Frazer of Phillorth his Grand-father who Disponed the Lands in question to Doors and was oblieged to infeft him and did de facto resign in the Kings hands in his favour and so personally objection umquhil Phillorth Doors Author would be for ever excluded from objecting against Doors Right which flowed from him so neither can the Defender who represents him object against the Pursuer who is Successor in Door 's Rights The Defender answered that being called albeit he had no Right in his Person he might propone a Defense upon a Nullity in the Pursuers Right viz. that it is a non habente potestaâ—mâ— which is very competent here by exception This Declaâ—ator â—eing judicium petitorium wherein he may well repeat this Defense without necessiâ—y to call Doors because Doors being called in the Improbation all Infeftments in his Person are Improven for not production and so the Reason is instantly verified and albeit he were Successor to his Grand-father which he denys yet he may well alleadge that any Right flowing from his Grand-Father is personal and incompleat and can be no ground of Declarator of Property The Lords repelled the Defenses and found it not competent to the Defender to quarrel the Pursuers Authors Right unless he had a better Right Skeen contra Lumsdean Iuly 19. 1662. SKeen having Charged Alexander Lumsdean upon a Bond granted by Mr. Thomas Lumsdean as principal and the said Alexander as Cautioner he Suspends on this Reason that the cause of the Bond was Bills of Exchange drawn by Verhage upon Kezar in Camphire to be payed to Skeen or his Order which Bills Skeen ordered to be payed to Mr. Thomas Lumsdean's Wife and Mr. Thomas granted the Bond charged on for the saids Bills which Bills were protested upon Kezar's not paying of the Bills as the Protest bears To which protested Bills Mr. Thomas Lumsdean assigned the Suspender and whereupon he now alleadges that he must have allowance of the Bills protested being the cause of the Bond and therefore Skeen himself is lyable for the Bills which must compence the Charger The Pursuer answered that the Reason ought to be repelled because he offered him to prove that albeit the bills were protested for not payment by Kezar on whom they were drawn yet Mr. Thomas Lumsdean having gone back to Verhage who drew them Verhage payed Mr. Thomas and that before the Intimation of the Suspenders Assignation 2ly That Mr. Thomas Lumsdean being Factor in Camphire in his Factor Book upon the 109. page thereof there are four posts of Payment payed by the said Verhage to Mr. Thomas Lumsdean at diverse times conform to the Magistrates of Camphire their report upon the Lords Commission bearing that the said Factors Compt Book is Authentick and unvitiat and that Verhage who drew the Bills and Kezar upon whom they were drawn had both sworn before them that Verhage had payed the same to Lumsdean so the question was upon the manner of probation whereanent the Suspender alleadged 1. That Compt Books not being subscribed were not probative Writs even against the Merchant himself 2ly That at least they cannot prove against the Suspender his Assigney 3ly That they could be no better then Holograph Discharges by the Cedent which cannot instruct their own Date against the Assigney and so cannot prove the same to have been before the Intimation as for the Testimonies of Verhage and Kezar their Testimonies cannot take away Writs and yet are suspected being both Debitors for the Bills and that it was not instructed who write the Book whether Lumsdean himself or his ordinar Book Keeper The Lords found the Probation sufficient against the Assigney the Charger also proving that the Books were written by Lumsdean himself or by his â—rdinar Book-keeper and thought that the Book proved against this Assigney being Mr. Thomas own Brother and no suspition he would wrong him and there being four several Posts of payment in several Months besides the Depositions of the foresaids persons Fiddes contra Iack Iuly 19 1662. FIddes pursues Iack for payment of a Bond of 500. merks which Iack acknowledged to have received in custody form Fiddes to be keeped as his own Iack alleadged that he had but the custody and did conform to his Obligation he sent the Money to Dundee in Anno 1650. where he lost both it and much more of his own at the plunder of Dundee The Pursuer answered no way granting that his Money was lost at Dundee yet it ought not to liberat the Defender because he oft-times required and desired the Defender to pay him his Money before the plundring of Dundee and seing he did not then give it it was lost upon the Defenders hazard The Defender answered that any requisition was made was but verbal without Instrument and that it was made to the Defender being in Edinburgh after this Money and the Defenders whole means was sent to Dundee for safety and that at the time of any such desire he shew the Pursuer so and bid him send for it to Dundee when he pleased he should have it The Lords before answer having ordained Witnesses to be examined hinc inde and having advised the same found that the Pursuer did desire his Money and at that same time the Defender told him it was at Dundee and said he might have it when the pleased to send for it and Witnesses also proved that he was at Dundee and was in esteem as a man of good means then and that he was there aâ—the plunder of Dundee and ever since was in a poor miserable condition and some of them deponed that he had a considerable sum of Money far above this in question there The Question was whether this probation was sufficient to assoilzie albeit none of the Witnesses did particularly Depone that they knew the Pursuers Money to have been at Dundee and lost there Tâ—e Lords found that the probation was sufficient the Pursuer giving his oath in Supplement that it was there and lost there for they considered that at the time of the Pursuers Requisition the Witnesses proved the Defender declared it was there and that ex natura rei it was hard to prove particularly this Mony being a Fungible to have been lost there but that it behoved to be presumed so seing the man lost his whole means there and hath been poor ever since Montgomery of contra Eodem die MR. William Wallace having obtained a Disposition of the Lands of Hagburn from Thomas Hunter he gave a Back-bond oblieging him to sell the same at the best avail and as a part of the price to pay a Bond of Provision to Thoma's Sisters and Brother granted by their Father and having retained his own Sums and such as he was Cautioner for was oblieged to count for the rest and being first pursued before the Englishes and now before the Lords he was decerned to take the Lands at sixteen years purchase and a half and to count
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
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
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
it is enough that the Rebel is Cited and none would be prejudged who were not Cited and any may compear that pleases for their Entress The Lords Repelled the Defense and Forefault the amand given thereupon as being contrair to the common Custom Laird of Philorth contra Lord Fraser Iune 28. 1666. THe Laird of Philorth pursues a Declarator of Property of Lands lying about the Kirk-yard of Rathan and particularly that a part of the Land within the Kirk-yard-dyke is his Property and that therefore the Dyke ought to be Demolished and specially the Lord Fraser's Arms upon the common Entry of the Kirk-yard-dyke It was alleadged for the Defenders first absolvitor because the Pursuer had homologat the Right of the Kâ—rk as to the Kirk-yard-dyke and all within it in so far as he had buried the Dead of his own Family in the bounds in question and likewise his Tennents The Lords found the former part Relevant but not the latter unless he had been present at his Tennents Burials or otherwise had consented The Defenders further alleadged Absolvitor because the Minister and Parochioners of Rathan had possest the Kirk-yard and Dyke peaceably by the space of 30 years which is sufficient to give them a Right upon this Point There occurred to the Lords these Points first Whether less Possession then 40 years could Constitute the full Right of a Kirk-yard 2ly VVhether less Possession by burying of the Dead could take away anothers Property And whether simply or so as to give him Damnage and Interest 3ly VVhether an Interruption made after the Building of this Dyke by the Pursuers raising Summons shortly thereafter could operate any thing if the Defenders had bruiked since the Interruption by that space that would have been sufficient to Constitute a full Right before Interruption Many were of the opinion that Kirk-yards have as great priviledge as any Kirklands and that in Kirk-lands 10. years Possession before the Reformation or 30. years after according to the old Act of Sederunt of the Lords did Constitute a full Right as well as the long Prescription in other Cases and likewise that in Ecclesiasticis 13. years Possession did Constitute a Right decennalis triennalis possessor non tenetur docere de titulo and that accordingly the Lords were in use to decide in all such Rights But the Point to be decided was Whether Interruption once used endured for 40. years so that albeit 13. years would suffice yet the Interruption long before these 13. would alwyse be sufficient till the Interruption did prescrive by 40. years wherein many were in the Negative that as in a possessoy Judgement on 7. years if Interruption were alleadged it was always a relevant Reply that since the Interruption the Defender has Possest 7. years without Interruption so if 10. or 13. years be sufficient to the Kirk no Interruption preceeding but only such as are done during these years can be sufficient for if 13. years will take away the Solemnest Rights and Writs much more may it a Citation Others were for the Affirmative on this ground that in the short Prescription of 3. years in Spuilzies c. Interruption once used serves for 40. years so it must in this case for he that once Interrupts is alwise holden as continuing in that Interruption until it Prescrive or be otherwise past from But it was answered that it did Prescrive by Possessing 13. or 30. years in rebus ecclesiae Church-men seldom have or keep Evidents albeit in other Cases Interruption would only prescrive in 40 years Yet the plurality found that after Interruption no less then 40. years Possession was sufficient but reserved to the Lords the Question anent the ground in so far as dead were buried therein after Probation Iohn Mcmorlan contra William Melvil Eodem die WIlliam Melvil and one Hatter an Englishman both Residing in England gave Bond to Gawin Lourie Residing there after the English Form who Assigns it to Iohn Mcmorlan Melvil Suspends upon this Reason that he had made payment to Gawin Lourie the Cedent which he offered to prove by Gawins Oath and which could not be refused because he offered to prove that it was the Custom of England that the Cedents Oath can never be taken away by Assignation as it is in Scotland but that Assignations are only as Procuratories and that payment might be proven there by Witnesses to take away Writ It was answered that the Law of Scotland must regulate the case because the Assignation is according to the Scots stile and the Debitor albeit Residing in England was a Scots man and knew the Custom of Scotland The Lords found that the manner of Probation behoved to be Regulate according to the Custom of England and so that payment might be proven by witnesses or by the Cedents Oath yet so as the Cedent could not be holden as confest but the Debitor or Suspender behoved to produce him and move him to Depone Wherein the Lords so Declared because they were informed that the Suspender proponed the Alleadgeance because the Cedent was Quaker and would not swear at all Duke of Hamiltoun contra Duke of Buckcleugh Eodem die THe Duke of Hamiltoun as Collector of the Taxation having Charged the Duke of Buckcleugh for the Taxation of the Lordship of Dalkeith He Suspended upon this Reason that the King Possest these Lands Himself the years of the Taxation and so cannot demand them from the Suspender who is a Singular Successor The Charger answered that he had the Taxation from the King for a Cause Onerous viz. a Debt The Lords found the Reason of Suspension Relevant Dougal Mcpherson contra Sir Rory Mcclaud Iune 29. 1666. DOwgal Mcpherson pursues Sir Rory Mcclaud for payment of a Sum upon his promise and the Summons bears a Warrand to Cite him at the Mercat Cross nearest the place of his Residence being in the lsles whereupon the Pursuer craved him to be holden as confest The Defender alleadged that he was not Personally apprehended and so could not be holden as consest and that this Citation at the Mercat Cross was periculo petentis and not to be Sustained in the time of Peace when there was no Trouble in the Countrey The Lords found that Warrands for such Citations ought not to be granted by common Bills of course but only by the Lords upon special Bills in presentia but seing the Defender compeared they allowed his Procurator a long time to produce him Ianet Kid contra Dickson Eodem die JAnet Kid pursues Reduction of a Disposition of some Tenements in Forfar made by her Father on this Ground that the Disposition is subscribed but by one Nottar and one Witness and the Charter by one Nottar and two VVitnesses and so is null by the Act of Parliament requiring two Nottars and four VVitnesses in VVrits of importance It was answered that the Tenements being small the price of one exprest being 200. merks and the other 300. merks the foresaids two
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
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 Received
Fathers Life It is an evidence he acquiesced to his Fathers Provision and cannot seek Annualrent against his Fathers Executors his Father having Alimented him neither is he lyable for that rigor that other Tutors are The Lords Repelled the Reasons as to the principal Sum and found that the Fathers Legacy was not in satisfaction of the Grand-Fathers Legacy but found no Annualrent due but Suspended the Letters simpliciter as to Annualrent Sir Alexander Frazer contra Alexander Keith December 16. 1668. SIr Alexander Frazer Doctor of medecine having purchased the Lands of Mâ—ekelty from Andrew Frazer who had Appryzed the same from Alexander Keith pursues a Declarator of the expiring of the Appryzing and of his Right of the Lands thereby It was alleadged for Alexander Keith that he had Depending Actions of Reduction against the Grounds of the Appryzing and thereupon alleadged that the saids Sums were satisfied before the Appryzing at least by the Pursuer or his Authors Intromissions with the Rents of the Appryzed Lands within ten years after the Deducing thereof During which time the Legal was unexpired by the late Act betwixt Debitor and Creditor whereby the Legal of Appryzings led since 1652. are prorogat for three years And as to the first point he alleadged that the ground of the Appryzing being a minut of Alienation betwixt the said Alexander Keith and Andrew Frazer whereby Andrew Dispones the Lands of Miekeltie and Stranduff to the Defender the Tenor of which minute is that the said Andrew obliges himself to Infeft and Secure the said Alexander in the said Lands and to purge all Incumberances thereupon and that the price shall not be payable till the said Alexander be put in Possession There is also a Commission therein granted to the Defender to purchase two expired Appryzings and to satisfie any other Incumberances and to Serve the said Andrew Heir to Thomas Frazer his Father and to obtain the said Andrew Infeft as Heir to his Father and likewise the Defender himself in the Lands so that the Right the Disponer had being only a back Bond granted by Frazer to Staniwood thereafter Lord Frazer by which he obliged himself to Denude himself of the Lands of Mickeltie in favours of the said Andrew Disponer Which back Bond was Appryzed by the two expired Appryzings but could not reach the Lands of Stranduff because Staniwood was not Infeft therein nor did the back Bond bear the same and therefore the Defender was necessitat to purchase the Right of a third Appryzing led at the Instance of Craigivar against Andrew Frazer the Disponer as lawfully Charged to Enter Heir to Thomas Frazer his Father who died last Infeft in the Lands of Stranduff and which would have excluded any Right that the Defender had from Andrew Frazer especially seing the Sum on which Craigivars Appryzing proceeded was a Debt due by the said Thomas Frazer to William Frazer which William Frazer raised a Pursuit thereupon against the said Andrew Frazer as Representing Thomas his Father and raised Inhibition upon a Dependence which Inhibition is Execute and Registrate against Andrew Frazer before he Disponed the Lands after which Dependence the matter being referred to Arbiters they Decerned Andrew Frazer to pay to the said William Frazer two thousand merks out of the first and readiest of the price of Miekeltie due by the Defender Alexander Keith or out of any other Goods or Sums belonging to the said Andrew so that the Decreet Arbitral upon the Submission being in the same Terms was equivalent to an Assignation or a Precept and the Defender Alexander Keith satisfying that Sum it is in effect payment of so much of the price and Craigivars Appryzing proceeding on that same Sum it was most necessar for the Defender to Acquire that Appryzing as proceeding upon a Right whereupon Inhibition was used before the Minute and upon a Decreet Arbitral in effect Assigning William Frazer to so much of the Sum due by Alexander Keith The Pursuer answered that the Defenders alleadgence ought to be Repelled because the Acquiring of Craigivars Appryzing was altogether needless and no way warranted by the Minute and so cannot exhaust the price because that Appryzing was led 10. years after the Minute and the Defender having accepted a Commission to do all things necessar for Establishing of his own Right he ought to have Served the Disponer Heir to his Father and to have Infeft him in Stranduff and to have Infeft himself upon the Disponers Resignation Or if he had found that the Lands were Disponed to Frazer of Staniwood upon Trust he ought to have procured the same to have been Established in his Person as coming in the place of Andrew Frazer to whose behove the Trust was which would for ever have Excluded Craigivars Appryzing being long posterior to the Defenders Commission contained in the Minute so that it was his own fault that he suffered another to Appryze neither could the Inhibition have prejudged him though prior to the Minut in respect it was upon a Dependence upon which no Decreet in favours of the Inhibiter could ever follow the Cause being Extinct by Transaction and Decreet Arbitral neither is there any Process Extant neither is the Decreet Arbitral equivalent to an Assignation and Precept because it doth not Decern Andrew Frazer to Assign the Sum due by the Defender nor doth it declare that that Sum shall belong to him but only Decerns Andrew Frazer to pay out of Keiths Sum or any other so that thereupon no Action could have been effectual against Keith to pay the Sum but only against Frazer himself The Defender answered that albeit no Sentence of a Judge proceeded upon the Dependence the Sentence of the Arbiters being in eadem causa was equivalent and whereas it is alleadged that the Defender had a Commission to perfect his own Security by the price left in his hand It was answered that the Commission being for his own behove and for his own Security he might make use of it or not make use of it as he pleased especially seing the Disponer was obliged to perfect the Defenders Security 2dly In the Minute there was no Procuratory of Resignation neither were the old Evidents Delivered to the Defender so that he could neither obtain Frazer to be Infeft much less himself upon Frazers Resignation wanting a Procuratory The Pursuer answered that the Commission being a Mandat accepted by the Defender did ex natura mandati bind the Accepter to do Diligence neither is it to his own behove but was also to the Disponers behove that his obligements might be fulfilled and his price not stopped and although the Minute want a Procuratory of Resignation that is no way Relevant for if the Defender had required a Procuratory of Resignation from the Disponer or had required the Writs to instruct the Service being in the Disponers hand and had been refused of either he had been in no fault but without any Diligence to suffer another Appryzing
no Fraud or Deceit qualified they repelled the Reasons and Decerned Fairie contra Inglis Iune 24. 1669. AT the Reporting of the former Interlocutor yesterday Fairie against Inglis It was further alleadged for Inglis that he offered him to prove by Fairies Oath that he was Circumveened in granting of the Ratification because Fairie upon that same Design drank him drunk Which Alleadgance the Lords Repelled in respect of the Bond and first Ticket wherein he Declared upon his Soul and Conscience never to come in the contrary Steuart of Gairntilly contra Sir William Steuart Eodem die SIr William Steuart having granted a Bond upon thir Terms that whereas he had obtained Disposition of the Lands of Innernytie partly by his Fathers Means and partly by his own and partly for granting the Bond underwritten and therefore he obliges himself to Infeft Iean Steuart his Sister and the Heirs of her Body which failzying ocertain Persons Substitute his Brethren and Nephews and a part of it tâ— return to himself and obliges himself to pay the Annualrent yearly to the said Iean and the Heirs of her Body and other Heirs of Tailzie foresaid during the not Redemption of the said Annualrent then there is insert a Reversion of the Annualrent from the said Jean and her foresaids by the said Sir William upon the payment of 20000. Merks and then a Clause of Requisition that if Jean after her Marriage desire the Money she or her foresaids might require the same to be paid after her Fathers Death and then a Clause that the said sum of 20000. should not be payable till five years after her Fathers Death and after her own Marriage The said Jean Assigns this Bond to her Brother Sir Thomas and he Charges Sir William who and some of the other Substitutes Suspends on these Reasons First That by the Conception of the Bond it was clear the principal Sum was not payable till Jeans Marriage and she being Dead unmarried is not now payable at all whereupon the Charger insisted for the bygone Annualrents and for granting an Infeftment of annualrent to him as Assigney conform to the Bond The Suspenders Reasons against the annualrent were first That this being an annualrent accessory to a principal Sum ablato principali tollitur accessorium so that the principal Sum being now not due to any by Ieans Death Dying unmarried the annualrent also must cease from her Death 2dly The annualrent is conceived payable to Iean and her Heirs but no mention of Assigneys 3dly Albeit ordinarly in such Obligations or Infeftments following thereon the first Person is Feear and the Substitutes are but Heirs who cannot come against the Feears Deed by Assignation or otherwayes yet where the Obligation is gratuitous and proceeds not upon sums of Mony belonging to the Creditor but upon the free Gift of a Parent bestowing the Sum there the Substitution implys a Substitution and Obligation upon the first Person and the Heirs of their Body to do no voluntar Deed to evacuat the Substitution so that albeit a Creditor or Successor for a Cause onerous might exclude the Substitutes yet another Heir appointed by the first person or a Donator or gratuitous Assigney cannot evacuat the Tailzie and exclude the Substitutes because in such Contracts uberrima fidei the mind of the Party who Gifted and freely granted the sum is chiefly to be considered so that it cannot be thought to be old Gairntillies mind that his Daughter might Change the Substitution and elude the Conditions of the Bond for the Suspending of the Requisition of the principal Sum till Iean were married must import that his meaning was to give her the Annualrent only till that time and the principal Sum to be a Tocher if she married which was to no purpose if the Annualrent remained perpetual for then the Heretor would certainly Redeem to purge his Land as he had done and the Sums Consigned would belong to the Assigney and the Clause Suspending the payment thereof if Iean married not signified nothing sed verba sumenda sunt cum effectu and the meaning of the Parties and conception of the Condition Suspensive must be preserved The Charger answered that he opponed the Bond wherein without all question Jean was Feear and the Substitutes being the Heirs of Tailzie cannot quarrel her Deed but are bound as Representing her to fulfil the same and albeit Ieans Assigneys be not exprest yet they are ever included where they are not expresly excluded neither is this Annualrent stated as a meer accessory because the Requisition of the principal Sum may be Discharged or may become by the Suspensive Clause ineffectual as now it does and yet the Obligement or Infeftment of Annualrent remains a perpetual Right though Redeemable at the Debitors option neither is there by Law or Custom any difference or exception whether the Annualrent be gratuitous or for a Cause onerous and for the meaning of the Father procurer of the Bond it must be understood as it is exprest only to exclude the lifting of the principal Sum by Iean upon the Clause of Requisition if she were not married and if his mind had been otherways it had been easie to have adjected a restrictive Clause or in stead of the Substitution to have set down a Provision that if Iean died unmarried the annualrent should belong to her Brothers and Sisters nominat but this being an ordinar single Substitution hath neither expresly nor implicitely any Condition or Obligation upon the Feear not to Dispone The Lords Repelled the Reasons of Suspension and found Iean to be Feear of the Annualrent and that she might assign the same and that the Substitutes could not quarrel the same Kennedy and Muir contra Iaffray Eodem die MR. Iohn Iaffray being presented to the Parsonage and Viccarage Teinds of Maybol and having obtained Decreet conform there is a double Poinding raised by the Heretors and Possessors of Fishartoun Mr. Iohn Iaffray craves preference as Parson and so having Right to the whole Benefice the other party called is Grange Kennedy and Muire of Mank-wood who craved preference on this Ground that the Teinds of Maybol was of old a part of the Patrimony of the Nunry of North-Berwick and the Prioress for the time with the consent of one Nune who was then only alive set a Tack thereof to Thomas Kennedy of Bargany and Gilbert Kennedy his Son and to Gilberts first Heir and after all their Deaths for three nineteen years The Prioress having thereafter at the Kings Desire Resigned the Teinds of Maybol to be a Parsonage did in her Resignation except the Tack set to Barganie which was alwayes cled with Possession and was assigned to David Kennedy of Ballimore and Transferred to Mr. Iohn Hutcheson and by him to Kennedy and Muir as to the Teinds of Fishartoun whereupon they crave preference It was answered for Iaffray that by their Right produced there is related another Tack granted by Mr. James Bonar Parson of
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 them
a verbal Promise not in Writ it can be no more effectual than if it had been a verbal Tack which is only effectual for a year and thereafter the Setter may resile It was answered that here there is a Tack by the Husband for several years and the Wifes promise never to quarrel it needs no Solemnity in Writ but is valid as pactum de non petendo or de non repugnando The Lords found the Wifes Promise effectual and that she might not resile during the years of the Tack Lady Lucia Hamiltoun contra The Lands of Dunlap and Pitcon and the Creditors of Hay of Montcastle Ianuary 15. 1670. LAdy Lucia Hamiltoun being assigned to a Bond of 4400. merks grantted by George Hay of Montcastle to the Earl of Abercorn she Inhibits the said George and Denunces and Apprizes his Lands of Birklands and others and thereupon pursues Reduction against Dunlap and Pitcon and certain other Creditors in favours of whom there is a Disposition granted of the saids Lands by George Hay and insâ—sts on this Reason that albeit the Disposition bear to be for sums of Money and Causes onerous yet by a Clause therein it is expresly declared that it is granted to Dunlap and Pitcon for satisfying of the Debts due to them and to the effect they may sell the Lands for payment and satisfaction of the said Iohn Hay his other Creditors under-written for the sums after-specified after which words there was left a large blank which by ocular inspection is now filled up with another hand than he who Wrote the Body of the Disposition and which Article so filled up is in the same case as if it had been set upon the Margent and subscribed or as if it had been in a several Writ wanting Witnesses and cannot be holden to be of the same date of the Disposition but must be presumed to have been filled up after the Pursuers Inhibition and after she had Denunced and Apprized the Lands and therefore as to these Creditors so filled up their Rights which are granted by Dunlap and Pitâ—on the intrusted Persons long after the Pursuers Inhibition and Appryzing the same ought to be Reduced It was alleadged for the Creditors Defenders that the reason as it is qualified is no ways Relevant against them First Because the Disposition granted to Dunlap and Pitcon being of the whole Lands and they Infest accordingly being long before the Pursuers Inhibition and Appryzing and the said Disposition and Infeftment being to the Creditors behove albeit their Subaltern Rights from Dunlap and Pitcon be posterior nihil referi And whereas it is alleadged that their Names and Sums are filled up in the blank after the Inhibition and Appryzing with another hand and so must be presumed of another date It is answered that the Subscription at the Foot and Body of a Writ did necessarly infer that the whole blanks were then filled up unless the contrary be proven neither uses the Names of fillers up of blanks to be exprest and it cannot be presumed that any man in prudence would subscribe a blank Writ till the blanks were first filled up 2dly Though it could be proven that the blank was filled up after the Inhibition yet the general Terms of the Clause being insert a principio with the same hand viz. for satisfaction of the said George his Creditors it is sufficient although the particulars were insert after 3dly It is offered to be proven if need beis by the Oaths of Dunlap Pitcon and the Witnesses insert that before the subscribing of this Disposition thir Creditors filled up were particularly commâ—ned on to be filled up and no other The Pursuer answered that there being here pregnant Evidences of Fraud by interposing intrusted persons and preferring of some Creditors to others by the Debitor who was Insolvent and had no more Estate in that case the filling up of the blanks must be presumed fraudulent and posterior unless the Creditors prove it was trulyâ— filled up before the Inhibition otherwise it opens a Door to all Insolvent Persons in this manner to exclude any of their Creditors from payment and to have such Clauses ambulatory at their pleasure Neither doth the general part of the Clause suffice unless it had been in favours of the Disponers Creditors generally or indefinitly which would have comprehended the Pursuer but it being only of the Creditors under-written if these were not under-written till after the Inhibition they have no place And as for any verbal Communing or Agreement it cannot be effectual until it be redacted into Write which was not till after the Inhibition The Lords found that the blank being filled up with another hand and so substantial a Clause and the Writer not being exprest at the foot that it was to be presumed to be posterior to the Inhibition unless the Creditors prove by the Witnesses insert or others above exception that it was truly insert before the Inhibition and Apprizing wherein they would not admit the Oaths of the Persons intrusted and they had no respect to the alleadgeance that it was Communed and Agreed upon before the Subscription Doctor Balfour and his Spouse contra Mr. William Wood. Ianuary 18. 1670. UMquhil Mr. Iames Wood having been Tutor to his Wifes Daughter she being now Married to Doctor Balfour they pursue Mr. William Wood as Representing his Father for a Tutor accompt in which Accompt the Auditors reported these Points 1. The Pursuer insisted for the whole sums bearing Annualrent whereof no part belongs to the Wife as Relict she being excluded by the Act of Parliament The Defender answered that he opponed the Testament and Confirmation unreduced whereby there is a Tripartite Division of the whole Sums and the Relict has one Third which belonged to the Defunct Tutor her Husband jure mariti The Lords Repelled this alleadgeance and found that the Errour of the Confirmation was Corrigible without Reduction 2. The Defender alleadged that he was not comptable for the Annualrent of one of the Sums acclaimed because by the Bond it was provided in Liferent to the Relict whereto his Father had right jure mariti It was answered that the Tutor had given several Discharges of that Annualrent as Tutor and not as Husband and so had Homologat and acknowledged the Pupils right to the Annualrent It was answered that the Discharge was so granted by errour and mistake falsa designatio non obest ubi constat dere and offered to prove by the Bond that the Wife was Liferenter Which the Lords found Relevant Andrew Hadden contra Nicol Campbel Ianuary 25. 1670. ANdrew Hadden having Charged Nicol Campbel upon a Bond Subscribed by him as Cautioner for Samuel Meikle Gold-smith Nicol Campbel Suspends and raises Reduction on this Ground that he being an illiterate man and could not subscribe he was induced to be Cautioner for Samuel Meikle but on these express Terms that he should only be Cautioner for 1200. merks and accordingly he gave order
upon this Bond so unwarrantably filled up The Lords found the Declarator Relevant and Proven and therefore Decerned the said Bond null reserving Action against Kinghorn upon any Debt due by Kinghorn to Keith as accords Tutor of Colzean contra The nearest of Kin of the Pupil February 5. 1670. THe Tutor of Colzean having cited the nearest of Kin of his Pupil to hear and see it found and declared that the Pupils Lands were set too high and could not be keeped at these Rates and that the Tennents were in Arreir before his Tutory in great Sums which if he should exact would cast the Land waste and that it was for the good of the Pupil to set the Land at lower Rates which it might be able to pay and to quite so much of the Arreirs as the Tennents might pay the rest and be able to continue and Possess There being no compearance the Lords gave Commission to certain Gentlemen in the Countrey to Examine the Rate of the Land and the conditions of the Tennents who have reported several of the Rooms to be too high set and what ought to be given down and what behoved to be quite to each Tennent that was deep in Arreir to inable him to pay the rest and Lâ—bour the Ground The Lords approved the Report with these Qualifications First That the Tutor should Discharge nothing simply but only till the Pupillarity were past that himself and Curators might then proceed as they saw Cause and that the Tutor before any Abatement of the Rooms should cause make Intimation at the Mercat Cross of the Jurisdiction and at the Paroch Church that such Lands were to be set at such a place such a day and whoever bade most for them being sufficient Tennents should have them and that at the said day if a better Rate were not gotten the Tutor might then or thereafter set at the Rates contained in the Commission Daniel Cathcart contra Mccorquodail and Mr. Iames Mirk February 8. 1670. Mccorquodail having Married the Daughter of Mr. James Mirk he and the Barron of Mccorquodail his Brother are obliged to pay yearly 600. merks to the Wife after the Husbands Death and Mr. James Mirk is obliged to pay to Mccorquodail 7000. merks of Tocher Mccorquodail being Debitor to Daniel Cathcart Writer in Edinburgh in 600. merks He arrests the Tocher in Mirks hands and pursues to make forthcoming and for instructing produces the foresaid Contract of Marriage It was alleadged for Mirk that he is not obliged to pay or make furthcoming the Tocher unless his Daughter were secured in her Jointer for the Tocher and Jointer being the mutual causes of the Contract neither Mccorquodail nor any deriving Right from him by Assignation or Arrestment can demand the Tocher till they secure the Jointer and that exception is Relevant both against Mccorquodail and his Assignies It was answered for the Pursuer that if it had been provided by the Contract that the Tocher should have been employed for the Wifes security the Defense had been Relevant or there might be some pretence if there were an obligement upon the Husband to secure the Wife in Land or Annualrent for 600. Merks But the Contracters having agreed for no security for the future but having agreed upon a Personal security viz. of the Husband and his Brother the Husbands part of the Contract is performed and the Husband is no ways Creditor till his Death Which the Lords found Relevant and in respect of the conception of the Contract as aforesaid Repelled the Defense and Decerned Iohn Scot contra Alexander Cheisly and David Thomson February 9. 1670. IOhn Scot pursues a Declarator of Circumvention against Alexander Cheisly and David Thomson bearing that Alexander Cheisly having a Processe against the Magistrats of Glasgow for alleadged hindering the Executing of a Decreet and imprisoning him and being in an evil Condition in his Means he proposed to the said Iohn Scot his Good-brother that he must make use of his Name as Assigney to that Process lest his Creditors might affect any thing that might be obtained thereby and that Iohn Scot should give a Back-bond declaring that his Name was put in the Assignation upon Trust. In stead of which Back-bond he caused draw up a Bond bearing that forsomuch as Alexander Cheisly had Assigned Iohn Scot to a Process against the Town of Glasgow therefore and for other good Causes and Considerations Iohn Scot obliges him to pay to a blank Person 3850. Merks in which Bond Alexâ—nder Cheisly filled up David Thomsons Name and which Bond was obtained by Alexander Cheisly by gross Circumvention upon the absolute Trust the said Iohn Scot reposed upon the said Alexander for clearing whereof he condescends on these Points viz. that the said Iohn Scot was Goodbrother to the said Alexander Cheisly had been his Prentice and the said Alexander was his Curator and the said Iohn Scot is known to be a simple Person and the said Alexander Cheisly to be a subtile Person ready to take advantage Likeas it is evident that he did take advantage of the said Iohn Scot about that same time pretending that he was more able to act Iohn Scots Affairs then himself he procured Assignation from Iohn Scot to Bonds of twenty eight thousand Merks and put in the Assignationâ— Clause of absolute Warrandice albeit by a Back-bond of the same Date it be clear that the Assignation was only granted for Love and Favour and for Agenting the Matter and that the one half should belong to Cheisly for his pains and the other to Scot but prejudice to Scots obligements in the Assignation which could be no other but the Warrandice whereby albeit Cheisly knew that a part of the Debts were payed to Scots Father and a part was insolvent and that Scot who was Assigney by his Mother as Executrix had no more himself but Warrandice from her Deed yet by the absolute Warrandice he intended to be sure of the one half of the Sums although it s known that hardly the half will be recovered whereby Cheisly should have all and Scot who freely granted the Assignation should have nothing but less than nothing by being obliged to make up the half though so much were not recovered of the whole 2dly All the pretence of the Plea against Glasgow could never amount to 3850. Merks yet the Bond is conceived for absolute payment of that Sum albeit it was a meer Plea depending many years and Debated without success 3dly Cheisly himself did ever keep the Process and Assignation and did transact the Plea or a great part thereof with the Magistrats of Glasgow and got payment In this pursuit there was no Compearance for Cheisly but it was alleadged for David Thomson that whatever had past betwixt Cheisly and Scot no ground of Circumvention betwixt them could be Relevant to take away his Right who seeing the blank Bond filled up with his Name by Cheisly before it was brought to him and given to him for
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 Cross
him and had at last found him in the Tolbooth of Edinburgh for the same Debt where he yet was in as good condition as when he first escaped The Pursuer answered that the Rebel had escaped by the fault or neglect of the Jaylour for whom the Town was answerable in so far as they had given him the liberty of all the Rooms in the Tolbooth and that when he escaped he was left in the outmost Room and his Brother Son was permitted to abide within with him and the Catband on the outside of the Tolbooth Door was not put on and Locked which would have so secured the Door that nothing the Prisoner could have done within could have opened the same and that the Tolbooth Lock had a double and single Cast and when it was Locked only with the single Cast the Bolt might be thrust back but when with the double Cast it had a strong Backsprent and could not be thrust back and that at the time of the escape the Lock had but the single Cast so that the edge of the Stone being broken off there was access to press back the Bolt To the second it was answered that the Rebel having escaped through the Town or their Servants neglect jus erat acquisitum to the Pursuer making them lyable which could not be taken off by any Incarceration thereafter unless the Magistrates had followed him in the very Act of escape and recovered him but now they have six Moneths after his escape put him not in the Tolbooth of Pearth but in the Tolbooth of Edinburgh The Lords being unwilling to give either Party the choose of Witnesses for Probation had before answer appointed either Party to adduce Witnesses anent the condition of the Tolbooth and the manner of the Rebels escape which being now advised The Lords found that by the most pregnent Probation it was proven that the Catband used sometimes to be on in the day time and sometimes not and that Prisoners for Debt had the liberty in the Day time of all the Rooms of the Tolbooth the Probation was very contrair as to the breaking of the Stone wherein the Bolt entered but it seemed access could not be had to the Bolt without some breach of the Stone It was also proven the Catband was not then on and that the Bolt when it got the double Cast could not be prest back and could when it got the single Cast and therefore the Lords found that the Magistrates proved not their first Exception that the Rebel had escaped vi majori without their fault or negligence and found the second Exception of puting him again in Prison not Relevant The Lady Halliburtoun contra The Creditors of Halliburtoun Iuly 27. 1670. THe Lady Halliburtoun being provided by her Contract of Marriage to the Mâ—ins of Halliburtoun with the Miln and Pertinents and her Precept of Seizing bearing warrand to Infeft her in the Mains and Miln by Earth and Stone of the Land and by the Clap of the Miln her Seising having the said Precept ingrosâ—ed bears her by vertue thereof to be Infeft by the Earth and Stone of the Land but mentions nothing of any Symbol for the Miln or of any Reason that Seising was not taken of the Milnâ— because it was Demolished the Miln being thereafter Built or Re-edified the Creditors having Apprized did take Infeftment of the Mains by Earth and Stone and of the Miln by Clap and Happer and now in a competition betwixt the Lady and them anent the Rents of the Miln It was alleadged for the Creditors that they ought to be preferred because they were Infeft in the Miln and the Lady was never Infeft therein albeit her Precept of Seising buir an express Warrand to Infeft her therein by Clap and Happer It was answered for the Lady that her infeftment of the Land with the Miln and other Pertinents is anterior to the Creditors and must extend to the Miln albeit she took no special Seising thereof because there was no standing Miln at the time of her Seising so that the Miln being Builded by her Husband thereafter solo cedit and belongs to her as a Pertinent for though where a Miln is before Infeftment it cannot passe as a Pertinent without a special Seising yet where it is only Built thereafter it accresces to any Party Infeft in the Land especially being Infeft in the Land with the Miln thereof The Lords preferred the Lady she proving the Milnâ— the time of her Contract and Infeftment was not at all Built or having been Built was Demolished Charles Charters contra Cornelius Neilson Iuly 29. 1670. CHarles Charters and Cornelius Neilson both having Arrested their Debitors Money in the same hand Cornelius Arrestment was upon the 24. of Iune and Charles Arrestment upon the 28 But Cornelius Arrestment was upon a Bond whereof the Term of payment was not come and the Term of payment of Charles his Bond was come both Parties having their Citation before the Bailzies of Edinburhg in one day where Cornelius alleadged preference because his Arrestment was prior Charles Charters answered that albeit his Arrestment was four days posterior yet it ought to be preferred because the Term of payment of Cornelius Debt was not come whereas Charles his Term being past he has paratam executionem this being ready to be Advised by the Bailzies Cornelius raises Advocation and the Cause being Advocat the same Debate was repeated before the Lords and Cornelius added that now the Term of payment of his Sum was past and alleadged that albeit his Term were not come his first Arrestment is preferable though the Decreet thereupon could only be to pay after the Term were past and now his Term being also past before Sentence there needs no such limitation It was answered that it is not the Arrestment that constitutes the Right but the Sentence making forthcoming and though ordinarly the first Arrestment is preferred yet oftimes posterior Arrestments are preferred upon more timous or more orderly Diligence and the Diligence done by Charters is done more orderly because it was after the Term for if it were Sustained that Arrestments made before the Term of payment should be preferred to these made after the Term Creditors who has ready Execution should be postponed to others whose Debts were payable after a Liferent of 20. years time but as the second Arrester may Poind his Debitors Goods though Arrested formerly by another so may he crave Sentence to make forthcoming to take present effect by Poinding and cannot be excluded by an other Creditor upon pretence of a prior Arrestment which cannot receive present Execution and albeit the prior Arresters Term be now come yet he ought not to be preferred because he procured Advocation of the Cause without any just Reason either of Incompetency or Iniquity only to procure delay till his Term were past and therefore the Cause being now Advocat of consent the Sentence must now be of the same manner as it
the Cautioner in the Suspension may be reached It was alleadged no Transferrence because Bagillo â—s Father obtained a general Discharge from Denhead before any Intimation upon Collistouns Assignation and albeit the Discharge be posterior to the Assignation produced it must liberat the Debitor who was not obliged to know the Assigney before Intimation It was answered that the Debitor might pay to the Cedent bona fide before Intimation yet a Discharge obtained from the Cedent after Assignation would not liberate against the Assigney though it were before Intimation and this general Discharge bears no onerous Cause 2dly This general Discharge being only of all Processes and Debts betwixt Bagillo and Denhead at that time it cannot extend to this sum assigned by Denhead long before and who could not know whether the Assigney had intimate or not and cannot be thought contrair the Warrandice of his own Assignation to have Discharged the sum Assigned especially seing there was an Assignation long before which was lost and the Intimation thereof yet remains and this second Assignation bears to have been made in respect of the losse of the former and yet it is also before this general Discharge The Lords found the general Discharge of the Cedent could not take away this sum formerly assigned to him though not Intimat unlesse it were proven that payment or satisfaction was truely made for this Sum. Alexander Wishart contra Elizabeth Arthure February 4. 1671. UMquhil Mr. William Arthure being Infeft in an Annualrent out of some Tenements in Edinburgh and having entered in Possession by lifting of Mails and Duties some of his Discharges being produced Alexander Wishart as now having right to the Tenements pursues a Declarator against Elizabeth Arthure only Daughter to Mr. William for declaring that the sum whereupon the Annualrent was Constitute was satisfied by Intromission with the Mails and Duties of the Tenements The Defender alleadged that this was only probable scripto vel juramento and not by Witnesses for an Annualrenter having no Title to Possess out-put and in-put Tennents cannot be presumed to uplift more than his annualrent especially seing his Discharges produced for many years are far within his annualrent and it were of dangerous consequence if Witnesses who cannot prove an hundreth pounds were admitted not only to prove Intromission with the Rents so far as might extend to the Annualrent but so much more as might satisfie the Principal and thereby take away an Infeftment for albeit that Probation has been Sustained to extinguish Appryzings which are rigorous Rights yet not to take away Infeftments of Annualrent It was answered that albeit Witnesses are not admitted where Writ may and uses to be adhibite in odium negligentis who neglected to take Writ Yet this is no such case and therefore in all such Witnesses are admitted for if the Pursuer had insisted against the Defender for intrometting with his Mails and Duties of whatever quantity and time within Prescription Witnesses would have been admitted The Defender could only have excepted upon his Annualrent which would have been Sustained pro tanto but the Pursuer would have been admitted to prove further intromission which being by vertue of his Security for a Sum and in his hand would Compense and Extinguish that Sum which is all that is here craved and whereupon the Witnesses are already Adduced The Lords Sustained the Probation by Witnesses for the whole intromission to be imputed in satisfaction of the Principal Sum and Annualrents Lowrie contra Gibson Eodem die LOwrie being Superiour to Gibson in a Feu pursued him before the Sheriff for annulling his Feu for not payment of the Feu-duty and obtained Decreet against him and thereafter Pursued him before the Lords for Mails and Duties wherein Compearance being made Gibson made an offer that if Lowrie would free him of bygones and pay him 1600. merks he and his Authour would Dispone their whole Right which being accepted by the Superiour Decreet was pronunced against Gibson to denude himself upon payment Shortly thereafter Gibson drew up a Disposition and Subscribed it in the Terms of the Decreet and offered it to Lowrie who refused it because his Author had not Subscribed Thereafter Gibson Suspended upon Obedience and Consigned the Disposition which was never Discussed but Gibson continued in Possession still from the Decreet which was in Anno 1650. Now Gibson raises a Reduction of the Sheriffs Decreet of Declarator annulling his Feu because the Sheriff was not a competent Judge to such Processes and because Gibson had offered the Feu-duty which was refused so that the not payment was not through his fault and also insisted for Reduction of the Lords Decreet as built upon the Sheriffs Decreet and falling in consequence therewith And as for any offer or consent the assertion of a Clerk could not instruct the same unless it had been warranted by the Parties Subscription It was answered that Gibson having Homologate the Decreet by an offer of the Disposition conform thereto which was only refused because it wanted the Authors Subscription and having Suspended upon Obedience he cannot now object either against the Decreets or Consent It was answered that so long as the Decreets of the Sheriff and the Lords were standing Gibson might be compelled thereby to Consign the said Disposition but that is only on these Terms to be given up if the Lords saw Cause and hinders not Gibson to alleadge why it should not be given up And as to the offer to deliver the Disposition the Instrument of the Nottar could not instruct the same but only Gibson's own Oath The Lords found that albeit the Consignation for the Suspension would not have prejudged Gibson yet the simple offer to deliver the Disposition did so Homologate the Decreets and Consent that he could not quarrel the same but they found it not proven by the Instrument without the Oaths of the Witnesses insert in the Instrument And in regard that Lowrie had letten the matterly over for more than twenty years they Declared that the Agreement should only take effect from this time and that Gibson should not be comptable for the bygone Duties Ninian Home contra Francis Scot. February 7. 1671. NInian Hume having Charged Francis Scot upon a Bond of 550. merks He Suspends on this Reason that both Parties having referred the matter verbally to an Arbiter he had determined 200. merks to be payed for all whereupon Hume had pursued It was answered that verbal Submissions and Decreets Arbitral are not binding but either Party may resile before Writ be adhibite The Lords found the Reason was Relevant to be proven thus by the Chargers Oath that he did submit and by the Arbiters Oaths that they did accordingly determine Lowrie of Blackwood contra Sir John Drummond Eodem die SIr Robert Drummond of Meidhope having Disponed his Lands of Scotstoun to Sir Iohn Drummond for love and favour and for better incouraging Sir Iohn to pay his Debt as the
Justice Clerk her Brother who alleadged upon the foresaid Clause that the effect thereof must necessarly be that the said Helen should make no voluntare gratuitous Right in prejudice of her Father or his Heirs that the Sum should return if she were not Married It was answered that this Clause not being the ordinar Clause of Substitution Provision or Return cannot be understood a Suspensive Clause hindring the lifting of the Money neither yet a resolutive Clause in case the Pursuer Marry not but it can only have the effect of a Clause of Substitution that if the Pursuer died Un-married and the Sum un-uplifted or Disponed her Fathers Heir is preferred to her own Heir or nearest of Kin for the Term of payment being her age of ten years she might then lift the Sum and there is no provision to reimploy it of this Tenor or to find Caution to Restore if she were not Married It was answered that this Clause cannot be interpreted as a naked Substitution but as a condition of the Bond equivalent to that which is frequent in Provisions of Children and Contracts of Marriage that in case the Party had no Children the sum should return which was always interpret more than a single Substitution and to import a Condition or Obligation against any voluntar Deed or Disposition And though the Party be thereby Feear of the Sum yet it imports a limited Fee with a Provision to do no Deed in the contrair without a Cause onerous and albeit Re-imployment of the sum be not exprest in this Bond it is implyed in the nature of it The Lords found that seing the Bond had a particular Term and no Condition to Re-imploy and the question now was only of voluntar Dispositions without Causes onerous whereof there was none at present existent The Lords Decerned the Sum to be payed to the Pursuer reserving to the Defender his Reason of preference against any Disposition or Assignation without a Cause onerous if the same should happen to be made Iohn Mccrae contra Lord Mcdonald Iuly 6. 1671. JOhn Mccrae as Heir to John Mccrae his Goodsire pursues the Lord Mcdonald as Heir to his Goodsire for payment of a Bond of 400. merks in Anno 1629. granted by the Defenders Goodsire to the Pursuers Goodsire The Defender alleadged absolvitor because the Bond is prescribed The Pursuer replyed that the Prescription was impeded partly by Minority and was interrupted by a Citation at his Instance against the Lord Mcdonald It was answered that the first Citation made was null being at the Mercat Cross of the Shire by Dispensation upon an unwarrantable suggestion that there was not safe access to him which has been past of Course by the Servants of the Bill-Chamber whereas they ought specially to have represented the same and the consideration thereof to the Lords and so being surreptitiously obtained periculo petentis it can import no interruption 2dly The Execution at the Mercat Cross bears no leaving or affixing of a Copy And as for the second Citation it is but one day before the fourty years be compleat which being so small a time is not to be regarded in Prescription nam Lex non spectat minima and it is also null though it be done personally as falling with the first Execution The Lords found that the first Citation was sufficient to interrupt Prescription although it had not been formal through want of a Copy and declared they would sustain the Process thereupon if the leaving of a Copy were added to the Execution subscribed by the Messenger and abidden by as true They found also that the second Citation was sufficient interruption though within a day of compleating the prescription which was to be reckoned punctually de momento in momentum Strachan contra Gordouns Iuly 7. 1671. STrachan pursues Gordouns for a Spuilzie of four Oxen taken away from them by violence being then in their Plough by George and William Gordouns and others The Defenders alleadged absolvitor because they offered them to prove that the Oxon were their proper Goods and were stollen from them and that thereafter they were found straying upon the Pursuers Ground and that they were proclaimed as Waith-goods by the Sheriff and that by the Sheriffs Order direct to his Majors the Defenders intrometted with them and so did no wrong The Pursuer Replyed that no way granting the verity of the Defense the same ought to be Repelled because they having the Oxen in question in their peaceable Possession four Months they ought not to have been disturbed in their Peaceable Possession in this Order without the Citation or Sentence of a Judge So that the Defenders having unwarrantably and violently Dispossessed them spoliatus ante omnia restituendus and they may pursue for Restitution as accords but the Pursuers are not now obliged to Dispute the Point of Right 2dly If need beis they offer to prove that they acquired the Goods from the Laird of Glenkindy their Master so that being Possessors bona fide cum titulo they could not be summarly Spuilzied or Dispossessed For albeit stollen or strayed Goods may be summarly Recovered de recenti or from the Thieves yet cannot so be taken from a lawful Possessor acquiring bona fide The Lords found the Defense Relevant and admitted the same to the Defenders Probation and found also that part of the Reply Relevant that the Pursuers did Possess bona fide by an onerous Title Relevant to elide the Defense though it were proven as to the Restitution of the Oxen to the Pursuer and the ordinar profits thereof but not the violent profits for they found the Sheriffs Warrand being instructed would excuse from the violent profits but they found that the Defenders naked Possession though for four months by having the Goods in the Plough would not infer Restitution or Spuilzie but that the Goods being stollen or strayed might be recovered Summarly Laird of Polmais contra The Tradsmen of Striveling Eodem die THe Tradsmen of Striveling having Charged and troubled the Laird of Polmais Tennents about St. Ninians Kirk upon the Act of Parliament prohibiting Workmen to exercise their Trades in the Suburbs of Royal Burrows Polmais raised a Declarator for freeing of himself and his Tennents of the saids Charges and that they might freely exercise all their Trades especially about the Kirk of St. Ninians which is about a Mile from Striveling which being Dispute and it condescended upon that St. Ninians being a mile from Striveling could no ways fall under the Act of Parliament and could not be interpret a Suburb being no ways adjacent to the Town The Lords found the Declarator and Condescendence Relevant and Decerned Andrew and Adam Stevins contra Cornelius Neilson Iuly 11. 1671. ANdrew Stevin having made a Disposition of his Lands to Cornelius Neilson his Good-brother and thereafter another Disposition to his Brother Adam Stevin They pursue a Reduction of Cornelius Disposition First As being upon Trust and only for the security
The Pursuer Repâ—yed that the Prescription was interrupted in so far as a part of the Principal Sum was payed within the years of Prescription It was answered for the Defender that the payment being mode to the Daughters of the principal Sum it could have no effect as to the Annualrents preceeding Iean Blairs Death which belonged not to her Daughters as persons Substitute in the Bond but to her Executors so that the Bond might well be preserved as to the principal Sum and yet prescribe as to the Annualrents these being two several Right and stated in several Persons It was answered That the Interruption by payment was sufficient for preserving both Principal and Annual for Prescription being odious any Deed by which the Debitor and Creditor acknowledge the Right within the fourty years is sufficient not only as to the interest of the particular Actors but as to all others who have interest in the same Right as payment of any part of the Annualrent by one Person preserves the whole Right against all the Cautioners and Co-principals though they neither payed nor were pursued within fourty years so payment of any part of the Principal must in the same manner preserve the Right of the Bond as to all Annualrents to whomsoever they belong if they be not fourty years before that Interruption by payment of a part of the principal Which the Lords found Relevant This was stopped on the Lords own consideration without a Bâ—ll from the Parties because by common Custom though Annual had been constantly payed for fourty years yet all preceeding prescribed whereupon it was contrarily Decerned thereafter February 7. 1672. Alice Miller contra Bothwel of Glencorse Eodem die ALice Miller pursues Improbation of a Minute of a Tack betwixt her and Glencorse who compeared and abode by the verity of the Tack and the Writer and Witnesses of the Tack being Examined upon Oath did Depone that they did not see Alice Miller Subscribe and one of them Deponing that he had Subscribed at Glencorses instigation who told him that he had caused set to Alice Millers Name only one Witness who was Writer and was Glencorse his Brother Deponed that he saw the said Alice Miller Subscribe with her own hand The Lords having this Day Advised the Cause found that the Witnesses did not abide by the verity of the Subscription of the said Alice Miller and did therefore improve the Minute but found it not proven who was the Forger of the said Alice Millers Subscription Captain Guthrie contra The Laird of Mccairstoun Iuly 25. 1671. CAptain Guthrie having Married Dame Margaret Scot and she dying in Possession of the Lands of Mannehill Laboured by her Husband and her in the Moneth of April Mccairstoun as Heretor of the Land craves the Rent of the Land for that year in respect the Liferenter neither lived till the first Legal Term which is Whitesunday nor till Martinmasse It was answered that by immemorial Custom Liferenters have Right to the Cropt of Lands Sowed by themselves whether they attain to the Term of Whiâ—esunday or not neither were they ever found lyable for any Duty therefore Which the Lords Sustained Robert Baillie contra Mr. William Baillie Iuly 27. 1671. THe Laird of Lamingtoun having made a Tailzie of his Estate wherein William Baillie eldest Son to his Deceased eldest Son is in the first place and to him is Substitute Robert Baillie Lamingtouns second Son and the Heirs of his Body reserving to the said Robert his Liferent from the Fee of his Heirs in case they succeed and failzying of Roberts Heirs to Master William Baillie Lamingtouns Brother Son after Lamingtouns Death there is a Contract betwixt this Lamingtoun and Mr. William Baillie on the one part and Robert on the other by which Lamingtoun obliges himself to pay to Robert the sum of six hundreth merks during his Life and Robert Renunces and Dispones to Lamingtoun his portion natural and Bairns part of Gear and all Bonds and Provisions made to him by his Father and all Right he has to the Estate of Lamingtoun or any part thereof and that in favours of this Lamingtoun and his Goodsires Heirs males contained in his Procutry of Resignation Robert Baillie raises a Declarator against Lamingtoun and Mr. William Baillie for Declaring that this Contract could not be extended to exclude him or his Heirs from the Right of Tailzie in the Estate of Lamingtoun failzying of this Laird and his Heirs and that it could only be extended to any present Right Robert had to the Estate of Lamingtoun but to no future Right or hope of Succession seing there is no mention either of Tailzie or Succession in the Contract It was alleadged Absolvitor because Robert getting 600. Merks yearly he can instruct no Cause for it but this Renunciation which must necessarly be so interpret as to have effect and so if it extend not to exclude him from the Tailzie it had neither a Cause for granting the six hundreth merks nor any effect thereon It was answered that Robert being a Son of the Family and Renuncing his Portion natural it was a sufficient Cause and though there were no Cause such general Renunciations could never be extended to future Rights or hopes of Succession unless the sum had been exprest Which the Lords found Relevant and Declared accordingly Sir Iohn Keith contra Sir George Iohnstoun Iuly 28. 1671. THe Estate of Caskiben being Appryzed by Doctor Guil Sir George Iohnstoun the appearand Heir acquired Right to the Appryzing in the Person of Phillorth who by a Missive Letter acknowledged the Trust upon which Letter Sir George raised Action against Phillorth to compt for his intromission and Denude himself and upon the Dependence raised Inhibition yet Phillorth sold the Estate to Sir Iohn Keith who to clear himself of the Inhibition raised a Declarator that the Inhibition was null and that his Estate was free of any burden thereof because it wanted this essential Solemnity that the Execution against Phillorth did not bear a Copy to be delivered and that the Executions being so Registrat he being a Purchaser for a just price and seing no valid Inhibition upon Record he ought not to be Burdened therewith The Defender alleadged Absolvitor Because First The delivering of a Copy was no Essential Solemnitie neither does any Law or Statute ordain the same much less any Law declaring Executions void for want thereof and albeit it be the common Stile yet every thing in the Stile is not necessary for if the Messenger should have read the Letters and showen them to the Partie he could not say but that he was both Certiorat and Charged not to Dispone 2dly The Executions bear that Phillorth was Inhibit personally apprehended 3dly The Inhibition comprehends both a Prohibition to the Party Inhibit and to all the Leidges at the Mercat Cross at which the Execution bears a Copy was affixed so that whatever defect might be pretended as to Phillorth this Pursuer
but by a third party Iuly 5. 1662. Drummond contra Campbel A DESIGNATION of a Gleib by way of Instrument of a Nottar was not Sustained without Production of the Testificate of the Ministers Designers December 17. 1664. Paterson contra Watson Designations of Gleibs must first be of Parsons before Bishops Lands though they were Feued before the Act anent Manses and Gleibs and built with Houses so that the Feuar must purchase as much ere the other Kirk Lands be affected Ianuary 25. 1665. Parson of Dysart contra Watson Designation of one to be Tutor Testamentar by his own acknowledgement was found not to prove against him where by the Testament the contrary appeared Iune 10. 1665. Swinâ—â—â—n contra Notman Designation of a Manse was Sustained by Intimation out of the Pulpit or at the Kirk door warning the Heretors thereto as being the constant custom though some of the most considerable were ouâ— of the Countrey Ianuary 28. 1668. Minister of Hassendene contra Duke of Bucclâ—â—gh Designation of a Gleib was Sustained though done but by two Ministers the Bishops Warrand being to three without 〈◊〉 Quâ—runâ— unless weighty reasons upon the prejudice of parties were shown February 7. 1668. Minister of Cockburnspeâ—h contra his Parochioners DEVASTATION total was found to Liberate from publick Maintainance February 20. 1663. Baxters of Edinburgh contra Heretors of Eastlouthian DILIGENCE was not required of a Person whose Name was not intrusted in the Infeftment of Annualrent to make him Comptable for ommisâ—ion but only for intromission December 18. 1666. Cass contra Wat. A DISCHARGE to one of more Contutors was â—ound not to Liberate the rest except in so far as satisfaction was given by the Party discharged or in so far as the other Contutors would be excluded from Recourse against the Party Discharged December 19. 1668. Seatoun contra Seatoun A Discharge of Rent not designing the Writer thereof was found null unless the user thereof designed the Writer because it was of 80. pounds of Annualrent yearly and that thereby an Infeftment of Annualrent would be cled with Possession and preferred to another Annualrent Iuly 14. 1665. Scot contra Silvertounâ—il A Discharge being general was found not to extend to a Sum Assigned by the Discharger before the Discharge albeit it was not intimate before unless it were proven that payment was truly made for this sum February 3. 1671. Blair of Bagillo contra Blair of Denhead A DISPOSITION of Moveables was preferred to an Arrestment on an horning anterior to the Delivery seing the Disposition was before the Horning and the delivery before the Arrestment Iuly â— 1662. Bouse contra Baillie Iohnstoâ—â— A Disposition was Reduced on the Act of Parliament 1621. as in fraudem creditorum though the Disponer was not Bankrupt and that he had reserved the power of a considerable sum to sell Land to pay his debt which the Creditors might affect seing the Creditors ought to have Preference according to their Legal diligence on the whole Estate till payment February 6. 1663. Lord Lour contra Earl of Dundee Dispositions of Heretable Rights are only Reducable upon the Act of Parliament against Bankrupts and not by exception or reply though betwixt Father and Son in re parvi momenti viz. 100. pounds Iune 19. 1663. Reid contra Harper A Disposition by a Husband to his Wife of an additional Ioynture she being sufficiently provided before was found Reduceable at the instance of anterior Creditors albeit the Husband was no Bankrupt but because he had no Estate un-liferented or affected albeit the Reversion was much more worth nor the Creditors Sums but the Relick offering to purge the prejudice by admitting the Creditor who had appryzed to possess Lands equivalent to his Annualrent he Assigning to the Relick what he was satisfied by the Ioynture Lands and with this provision that if the Legal expired she should not be absolutely excluded The Lords found the offer sufficient February 10. 1665. Lady Craig and Greenhead contra Lord Loure A Disposition omnium bonorum without any cause onerous and without delivery was found not sufficient to exclude the necessity of Confirmation and paying of the Quote Iune 23. 1665. Procurator-fiscal of the Commissariot of Edinburgh contra Fairholm A Disposition omnium bonorum though with possession was â—ound not to exclude the Quote and Confirmation seing it bear a â—eversion to the Disponer during his Life to dispone of the Goods notwithstanding Iuly 4. 1665. Commissar of Saint Andrews contra Laird of Bousie A Disposition of Land was found to carry all Right that was in the Disponers Person and to import an Assignation to a Reversion which needed not intimation seing the Seasine was Registrat in the Register of Seasines December 5. 1665. Beg contra Beg. A Disposition of Lands was found imported by an Assignation to the Mails and Duties in all time coming against the Heir of him that granted that Right and that the Heir was obliged to renew a compleat legal Disposition with a Procuratory of Resignation and Precept of Seasine Iuly 2. 1667. Sinclar of Hirdmanstoun contra Cowper A Disposition by one Brother to another of his whole Estate bearing for satisfying of his debts enumerat and containing a power to the Purchaser to satisfie what debts he pleased and to prefer them was found valide and not fraudulent in so far as extended to the Purchasers own Sums due to him and for which he was Cautioner for his Brother as if it had born these to be paid primo loco and thereupon one of the Creditors whose debt was enumerat in the Disposition was postponed to the Acquirers own debt and cautionry till they were first satisfied Ianuary 8. 1669. Captain Newman contra Tennents of White-hill and Mr. Iohn Prestoun A Disposition was Reduced because given by a weak person to him who was lately her Tutor ante redditas rationes and done of the same date with a Contract of Marriage whereby she was married to his Nephew who got the Disposition and died ere he was Married albeit he who got the Disposition was her Mothers Brother who Educat and Alimeâ—â—ed her and the Pursuer of the Reduction was her Grand-Fathers Brothers Son who had not noticed her but she was an ignorant person half deaf February 18. 1669. French contra Watson A Disposition of Moveables in Writ bearing onerous causes expressing a Sum and others generally was fouâ—â— not to prove the cause onerous by the Narrative being 〈◊〉 dulent leaving nothing to other Creditors nor 〈…〉 by the Acquirers Oath but also by the Oaths of the 〈◊〉 whom payment was made November 18. 1669. Henderson contra Anderson A Disposition of Lands bearing the Buyers Entry to be at Whitsonday and to the Cropt of that year was found not to extend to the Cropt of Corn that was Sowen and standing on the Ground that year the time of the Buyers Entry or to any part of the Rent payable for the Land fâ—om the Whitsunday before to
to be ignorant of the Terms of her Infeftment November 14. 1665. Skeen and her Spouse contra Ramsay Homologation of an Infeftment bearing in satisfaction c. was sound not to be inferred by possessing the Lands seing the Possessor had another Title as Heir apparent to persons who dyed Infeft therein unless it were instructed that the possession was attained by Processe upon the Infeftment in satisfaction December 12. 1665. Barns contra Young and her Spouse Homologation of a Feuars Right and passing from a Declarator against the same upon a clause irritant was found not to be inferred by acceptance of two years Feu-duties after the Declarator except as to these two years that more duty could not be demanded therefore Iune 6. 1666 Earl of Cassils contra Agnew Homologation of a Bond granted by a Minor without consent of his Father as lawful Administrator was found not inferred by payment of Annualrent by him after his Majority especially not being of his own Money nor by taking a Discharge of the Annualrent to the Principal and himself as Cautioner February 14. 1668. Mckenzie contra Fairholm Here the Discharge related the Bond both as to Principal and Cautioner Homologation of a Minors Bond was not inferred by pursuing for his relief after his Majority but that in case he were not liberate by that mean he might return to his Reduction upon Minority February 20. 1668. Farquhar of Toâ—ley contra Gordoun Homologation of a Tack of Teinds which was null as wanting the consent of the Patron was not found inferred by the Ministers receiving the duty conform to the Tack before Reduction thereof February 27. 1668. Chalmers contra Wood of Balbegno Homologation of a Decreet was not inferred by giving Bond of borrowed Money for the like sum and taking a Discharge of the Decreet seing it was no voluntary deed but the Debitor was then under Caption in the Messengers hands upon the Decreet neither a Transaction if the Bond contained all the sum in the Decreet unless abatement had been gotten Iuly 3. 1668. Row contra Hoâ—stoun Homologation was not inferred by a Husbands Discharge of Annualrent as Tutor to his Wifes Child to infer the Child had right to the Annualrent whereas by the Bond it self the Wife was Liferenter Ianuary 18. 1670. Doctor Balfour and his Spouse contra Wood. Homologation of a Decreet of consent containing a Transaction of parties at the Bar without any Subscription was inferred by a simple offer of a Disposition conform to the said Transaction be that party who quarrelled the Decreet as without Warrand but was not inferred by consignation of the Disposition for obtaining a Suspension upon obedience to be delivered up if the Lords saw cause February 4. 1671. Lowrie contra Gibson Homologation of a Contract of a Minor having Curators without their consent was not inferred by payment of a years Annualrent of the sum contained in the Contract being made â—o an indigent Sister who had no other provision but homologation was inferred by a Decreet of Registration of the Contract at the instance of the Party none quarrelling the same after his Majority though there was neither Charge nor Execution used thereon and in the Decreet of Registration there was neither Protestation nor Reservation that the same might be quarrelled in any point Iune 2â— 1671 Hume contra Lord Iustice Clerk Homologation of a Testament subscribed by a Wife at the desire of her Husband near his death was not inâ—erred by her Confirming the Testament under Protestation not to prejudge her own Right though she might have attained her interest in the Moveables by Confirming her self Executrix Creditrix Iuly 12. 1671. Murray contra Murray HORNING granted Summarly upon the late Iudges Act at the instance of heirs or Executors confirmed was found to be â—ull upon the late Act of Parliament declaring their ludiâ—â—â—â— proceedings to be quarrellable seing thereâ— was no â—â—justice in the matter but the Lords gave the Suspenders such time for their Defenses as in an ordinary Action Ianuary 1. 1662. Barnes contra Laird of Applegirth Horning doth not affect the Rebels Moveables by the Act 1592 but that the Rebel may effectually deliver them to one who had Disposition of them before the horning Iuly 9. 1662. Bower contra Barclay and Iohnstoun Horning was not found null by payment before denunciation to be proven by the Creditors Oath or holograph Discharges but by the Denuncers Oath of Verity February 10. 1663. Montgomery contra Montgomery and Lawder Horning granted against the Magisâ—rates of a Town upon the Act of their Council obliging to pay a Debt upon a Bill without Signet though there was no Process whereon the Act proceeded or Clause of Registration therein February 19. 1663. Lady Swintoun contra Magistrates oâ— Edinburgh Horning was sustained though on a Charge of six dayes beyond Dee contrary to the Act of Parliament 1580. â—n respecâ— it proceeded on consent of parties upon a clause of Registration and since that Act such hornings had never been quarrelled December 16. 1664. Laird of Phillorth contra Forbâ—s of Asâ—oun and the Lord Frazer A HVSBAND was found lyable to his Wifes debt though not established against him during the Marriage in so far as might be extended to the benefite of her Lifâ—rent Duty resting after the Marriage dissolved which could not belong to the Husband but with the burden of her debt February 1. 1662. Cunninghame contra Dalmahoy A Husband was found lyable for his interest in Moveables intrometted with by his Wife of her first Husbands albeit there was an interveening Husband who was not found to be first discust but reserving to the Defender to pursue his heirs as accords February 18. 1663. Dumbar or Hemprigs contra Lord Frazer Vide interdiction February 27. 1663. Laird of Milntoun contra Lady Milntoun A Husband was assoilzied from his Wifes debt albeit Litiscontestation was past seing she was dead and albeit there was an Interlocutor ordaining him to give Bond to pay what his Lady should be found due Iuly 11. 1664. Inter eosdem A Husband being pursued to remove from a Tenement which he possessed jure marâ—ti no Process was sustained till the Wife was cited Iuly 14. 1665. Iohnstoun of Sheeâ—s contra Brown A Husband Confirming his Wifes Testament by giving up his own Moveables and Debt though he made Faith upon the Inventary yet was not excluded from debarring the Wifes Legatars upon another debt then forgotten though not old December 7. 1665. Anderson contra Cunninghame But he being lately charged on a debt before the confirmation it was not allowed as forgotten Iune 5. 1666. Inter eosdem A Husbane was not found lyable for his Wifes debt jure Mariti after her death though in her life there was Decreet against her and him as Husband seing there was no Execution thereon in her life December 23. 1665. Dam Rachel Burnet contra Lepers A Husband and Wife were not found lyable as lucrative Successors for a competent Tocher
was found sufficient by turning off the Parties Cattel without necessity to alleadge an instrument of Interruption or keeping them off for a long time together November 14. 1662. Nicolson contra Laird of Balbirnie Interruption of a possessory judgement hinders the beginning of a new possessory judgement by seven years Possession after interruption until prescription Iuly 22. 1664. Montgomery contra Hume The like of Decennalis Triâ—nnalis Possession Iune 28. 1666. Laird of Phillorth contra Lord Frazer Interruption by a Summonds of Reduction and Citation thereupon was Sustained albeit the Reasons of Reduction were not filled up within the 40. years seing the Reduction was upon Minority and Lesion which was insinuate by the interest libelled ab initio viz. That the Pursuer as Heir to his Sister had good Interest to reduce all deeds done to her enorm lesion Iuly 14. 1669. Earl of Marischal contra Leith of Whiteâ—augh Interruption was Sustained by a Citation only at the Mercat Cross proceeding upon a Warrâ—nd to cite at the Mercat Cross quia non fuit â—utus accessus which was neither true not instructed but pasâ— by Bill of course amongst the common Bills and the Executions did not bear a Copy leâ—t at the Cross the Pursuer adding that to the Execution Iuly 6. 1671. Mcbrae contra Lord Mâ—dâ—nald Interruption was Sustained by a second Summonds though the first Summonds should be found nulâ— and though the Citation was only a day before the fourty years compleat Ibidem INTIMATION of a Right of Reversion was found not necessary where he that had the Right was Infeâ—t therein albeit he used no Diligence and which preferred him to a posterior Assigney although Redeeming first and possessing November 1â— 1664. Guthriâ— contra Laird of Sornbeg INTROMISSION being by many persons promiscuous was found not to oblige them in solidum but equally prorata unless a greater part were proven against them thogh the Intromission was vitious and had been a Spuilzie but not pursued within three years Ianuary 17â— 1667. Captain Strachan contra Morison Intromission being proven by clear and pregnant Testimonies of Witnesses though not in Litisconâ—estaâ—ion but to remain in 〈◊〉 no contrary probation was admitted even ex officio to prove that others did Intromet although Tacks and Wodsets granted to them were produced and the Possession and Intromission conform was offered to be proven and though the Intromission was more then 40. years since in respect the alleadgeance was founded super jure terâ—ij the Alleadger shewing no Right to the Wodsets or how the same were satisfied and the intromission being proven by removing the common Author and entering to the Natural Possession by 〈◊〉 Ianuary â—â— 1671. Kello contra Kinâ—â—â— â—VS MARITI was found to carry the Right of a sum assigned to a Wife while she was cled with â— Husband without necessity to instruct that it was also intimate before his death Ianuary 20. 1663. Scot contra Dickson Ius mariti was found not to carry the Right to a Provision granted by the Father to the Daughter bearing and Annualrent though but five per câ—nt the Term of payment of the Annualrent being past before the Marriage Iune 28. 1665. 〈◊〉 contra Edgar Ius mariti being Renunced was found not to take away the Husbands power of ordering his Family and disposing of duties appointed by the Wife of her former Ioynture for the use of their Families joyntly which was not found to give the Wife a distinct â—â—â—are of it or a power to mannage it but to enjoy her share under the Husbands mannadgement February 1667. Ratho and Coâ—â—ngâ—oun contra Tennents of Inâ—ertile and Lady Câ—llingtoun Ius mariti was found to be a Legal Assignation and being compleat with the Marriage a voluntar Right by the Wife of the same daâ—e with a Tack relating to the Agreement of Marriage granted by the Wife to her second Sonâ— leaving nothing to her Husband was found excluded thereby as not being intimate before the Marriage and being fraudulent in the Wife and null even against her Son though not partaker of the fraud not being an Acquirer for an onerous Cause in so far as might prejudge the Husband December 18. 1667. Auchinâ—eck contra Williamson and Gillespie IVS SVPERVENIENS c. was eâ—tended to any Right real accrescing to the Hereâ—or by one who had Right from the Vsurpers though that Right be fallen seing it was consequent on the true Hereâ—ors Right as obtaining Improbation of other Rights Iuly 13. 1664. Earl of Lawderdaâ—â— contra Wolmet Ius supervenâ—ens authori accrescit successori was found not to hold where there does not appear a full equivalent Cause onerous of the Successors Right or absolute Warrandice here the first Right was Reduced and the new Right but personal to the Mails and Duties till such a sum were satisfied Iuly 19. 1664. Dowglas and Longformacus her Spouse contra Laird of Wedderburn Ius superveniens authori accrescens successori was found to make a giâ—t of Ward to the behove of the Superiour accresce to the Vassal to whom he was bound in absolute Warrandice they paying a part of the expence February 15. 1665. Boyd of Pinkill contra Tennents of Carsâ—leuâ—â— Ius superveniens authori accrescens successori was found to have thir effects that a Tack for a small duty granted for sums of Money with absolute warrandice was not prejudged because the â—etter was not then Infeft nor excluded by a posterior Heretable Disposition of the Lands albeit the Authors supervenient Right was procured by the Acquirer of the said Disposition who infeft his author and himself both of the same date and who alleadged that his Authors Right being procured by him could not accresce to the Tackâ—â—man in his prejudice Iune 21. 1671. Neiâ—son contra Menzeis of Enoch IVS TERTII was found to exclude an exception upon on Assignation intimate to the Debitor and a Decreet thereon seing there was no payment but granâ—ing Suspension without Caution or Consignation that the parties might dispute their Rights Iune 16. 1665. Bruce contra Earl of Morâ—oun â—us tertii was found not to hinder an Appryzer to quarrel another Appryzers Right as wanting an Assignation to the debt on which the Appryzing proceeded albeit he had no Right from that Cedent nor any other interest but to exclude the Appryzing as informal albeit that Cedents Heir had renued the Assignation and deâ—lared that there was a prior Assignation by his Father and that his Right was in Trust Iuly 22. 1668. Iohnstoun of Sheeâ—s contra Arnold THE KINGS PALACE of Hâ—ly-rude-house was found to be exâ—mpted from the Regality of Brughtoun and in the Royalty and Citations against Parties residing there at the Cross of Edinburgh were Sustained Ianuary 11. 1662. Lady Carnagie contra Lord Cranburn KNOWLEDGE though private hinders bonae fidei possessor lucrari fructus November 20. 166â— Children of Wolmet contra Lady Wolmet and Dankeith her Husband LAW of Scotland only Regulates Succession of Scotsmen
Children and Creditors of Bryson OATH IN LITE â— was admitted for proving of Ware in a Pack given in custody where the keeper opened the same though he made Inventary before Witnesses by a Baillies Warrant Ianuary 3. 1667. Packman contra Bran. OATH QVALIFIED was not sustained importing a compensation yet the â—ame was admitted to be proven as an Exception at advising of the cause December 9. 1664. Lermont contra Râ—ssel AN OBLIGATION by three persons to cause a Minor releave a sum not bearing conjunctly and severally was found not to oblige every one in solidum as being for an indivisible Fact but resulting in a divisible sum Iuly 16. 1669. Dennistoun contra Semple of Fulwood OFFER of the remander of a Sum not being special and not being Consigned was found not to purge a Failzie December 19. 1661. Deuar contra Countess of Murray Offer conditional to pay a suâ— for a Mother on condition it were at such a time and place and were made known whether or not it were accepted was found not obligatory after the Mothers death unless the condition had been fulfilled then 〈◊〉 Iune 24. 1664. Allan contra Colner Offer of Caution to a Wodsetter that he ought to quite possession or restrict to the Annualrent was sustained though made at the parties dwelling House when he was out of the Countrey seing the Act of Parliament did not require that offer to be by Instrument and though the instrument of offer did not bear a Procuratory to him that made the offer the said procuratory being now produced Iune 16. 1671. Lord Loviâ— contra Lord Mcdonald THE OFFICE of a Commissar Clerk was found noâ— to be annulled by his absence for a time out of the Countrey and being denunced sine crimine February 6. 1666 Archbishop of Glasgow contra Logan An Office of a common Servant viz. a Town Clerk being given ad vitam was found to imply a tacite condition to be also ad culpam and that such a fault did resolve the same as was of knowledge and consequence February 14. 1665. Town of Edinburgh contra Thomson OVERSEâ—RS were found lyable for nothing if they intrometted not Ianuary 10. 1665. Swintoun contra Norman PART AND PERTINENT of Lands disponed by a Minute was found to extend to a common Paâ—â—urage in a Muire possessed as pertinent of the Land in the Bargain and that the Writes upon the extension of the Minute ought to bear the â—ame expresly February 14 1668. Borthwick contra Lord Borthwick Part and pertinent cum pascuis pasturn in a Charter given by the King to the Feuars of his Property was found to carry common pasturage in the Muire of the Barony which being now possessed 40. years by the Feuars of the Barony is presumed to have been so at the time of the Charter being past memory and that interruptions of any other Right exclusive of this common pasturage was sufficient to preserve the same February 15 166â— Laird of Haining contra Towâ— of Selkirk â—art and pertinent was not excluded albeit an alleadgeance was proponed on an old Seâ—sine of the Lands in question as being separatum tenementum the Seasine being â—ound null and no Title for Prescription February 15. 1671. Earl of Argile contra Laird of Mcnauchtoun ALL PARTIES HAVING INTEREST not necessary to be cited at the Mâ—râ—at Cross in the Declarator of the Expyring of a Feu ob non solutum 〈◊〉 though the Summons bear warrand for the citation December 1. 1664. Eaâ—l of Sâ—therland contra Gordoun PARIOIDE doth not infer Treason as against the Act of Parliament against murder under Trust which is meaned by paction in reâ—pect of the special Act of Parliament against Paricide which doth not exclude the Paricides Collaterals but him and his descendents from the succession of the slain which therefore cannot belong to the Fisk Ianuary 22. 1663. Zeaman contra Oliphant PASSING FROM A REASON of Suspension pro loco tempore was found not to hinder the proponing of the same against that Decreet and against an Appryzing thereon the matter being yet illiquid and a singular Successor in the Appryzing Iune 17. 1664. Laird of Tulliâ—llan contra 〈◊〉 and Braâ—foord Passing from a Reason of Compensation and taking up a Writ for instructing thereof was admitted before Extracting of a Decreet though the Writ was long in the Chargers hand not being judicially given up to him and that another emergent exception might now be admitted Iuly 14. 1664. Lord Balmerino contra the Creditors of Dick. PAYMENT made before the hand was found Relevant against a singular Successor the Kings Donaâ—ar of Forefaâ—lture because it was but of one Term and so accustomed by the Baroâ—y to pay at the Entry and be free at the â—sh Ianuary 7. 1662. Earl of Laudâ—â—dail contra Tennents of Swintoun Payment made bâ—na fide to Baiâ—ns of a Sum by a Disponer in â—avours of these Bairns was sustained though after Reduction raised unless a Reason had been Libelled against that which was ordained to be payed to Bairns and shown before payment Iuly 14. 1662. Mâ—ntgomerie of Mackâ—ichill contra Wallace Payment made bona fide to a Procurator was thought to be Relevant though the Procuratory should be improven if therein there did appear no ground suspition to have put the Debitor in maâ—â— fide February 1. 166â— Elphingstoun of Selms contra Lord Rollo and Laird of Niddrie Payment made by Heretors to Ministers of their Stipends during the time they Preached and before any Process against them was found to liberate the Heretors notwithstanding they were outed by the Act of Parliament anent these Ministeâ—s who entered since the year 1649 and had not gotten Presentation and Collation whereunto the Heretors â—eâ—e not obliged tâ— inquire seing the Ministers were suffered to Preach without challenge February 10. 1666. Collector of the vacant Stipends contra the Heretors of Mayâ—ole and Giâ—van Payment made bâ—na fide was found not to extend to payment made by a Tennent before the time nor to a Sub-Tenent to the Tennent before the Term February 5. 1667. Lady Traquair contra Howaâ—son Payment made of a Decreet by giving Bond of borrowed money and taking Discharges of the Decreet was found no Homologaâ—ion or Transaction but that after the party might quarrel both Decreet and Bond in consequence unless abatement were gotten upon Transaction of the Sum in the Decreet seing it was not voluntarly done but upon Caption Iâ—ly 3. 1668. Rew contra Houstoun Payment of the Rent of a Shop was sustained being a Taâ—k set by a Father to a Tennent for the annualrent of a sum though the Father had given a Right to his Son reserving his own Liferent seing he set the Tack as Feear and though the Son after his death warned only by Chalking the Door without any other intimation the Tacks-man was Liberate of the Rent for his Annualrent as bonae fidei possessor by his Tack till he was cited on the Sons Right February 16. 1669.
his Estate that she might not be abused in her Marriage by her Mother or her Freinds the same was sustained after the Pupils age of eleven years though the Mother was unmarried and the Daughter valiâ—udinary February 6. 1666. Laird of Dury contra Lady Dury A Tutor was found to have a year to imploy sums not bearing annualrent and not to be obliged to uplift sums where the Pupil was fully secured or where on a sudden the Debitor break but was found lyable for all Diligence according to the Debitors condition by Horning Caption Arrestment Poinding and Appryzing of the Debitors Estate which should be known to him and not for Horning only Iuly 9. 1667. Steâ—in contra Boyd In a Tutor compt the Tutor was not found lyable for the Services he got to the Pupils Tennents in kind and that where he was super-expended a Decreet might be at his instance against the Pupil on the Pupils own Process Ianuary 11 1668. Grant contra Grant A Tutor was found lyable to compt as Tutor and not as Pro-Tutor on production of a Writ under his hand designing himself and acting as Tutor Testamentar without necessity to the Pursuer to produce the Testament December 2. 1668. Sâ—atoun contra Sâ—atoun A Tutor was found lyable for the Annualrent of his Pupils sums which were in responsal Debitors hands but not to re-imploy the same upon annualrent in respect the Tutor dyed durante tutela and that what annualrents he had received his Successors were only lyable for the same and the annualrent thereof from the time the Pupil past pupillarity it being sufficient to lift and imploy the annualrents of Pupils sums at any time during the ordinary course of the Tutory afâ—er the Pupils passing pupillarity Iuly 9 1669. Kintor contra the Heirs and Successors of Logan of Coatfiâ—ld This was stopped on the Purâ—uers Bill till it were furder heard upon the grounds of the first Decision A Tutor having cited his Pupils Friends on both sides that â—t might be declared by the Lords that the Pupils Lands were â—racked above the true value and that they wâ—re not able to pay their Rents without casting the Land waste no party appearing the Process being considered by the Lords they granted Commission to Gentlemen in the Countrey to try the matter of Fact and report February 5. 1670. Tutor of colzâ—an contra nearest of kin of the Pupil A Tutory granted to two and bearing them to be joyntly was found void by the death of either Ianuary 17. 1671. Drummond of Riccartoun contra Feuars of Bothkenneth TVTOR DATIVE of a furious person was found not to exclude the nearest Agnat as Tutor of Law to be served quandocunque though the Idiot was necessitate to pay upon the Tutors citation to make forthcoming Ianuary 21. 1663. Mr. Iames Steuart and Robert his Tutor Dative contra Spreul Vâ—â—â—MUS HAERES being gifted was found to have no effect till there be be a declarator thereupon in the same way as in Bastardy Iuly 30. 1662. Laird of Balnagoun contra Dingwall The like Iuly 31. 1666. Crawfoord contra Town of Edinb VSE OF PAYMENT of a duty to a Minister for Teinds and his discharge for the whole Teinds for a long time was found sufficient against him who had the Tack and Prorogation of these Teinds until interruption by Citation or Inhibition thogh the duty was very smal the Minister was but stipendiaâ— having that quantity allocat out of these Teinds Ianuary 19. 1669. Earl of Athol coâ—tra Robertson of Strowan VSVRY was not inferred by a Creditors taking a Tack for his furder security for so much Victual or 20. shilling less than the 〈◊〉 at the setters option that abatement being for the setters pains and hazard in getting in the price November 23. 1664. Scot contra Laird of Barefoord VICCARAGE was not found due out of Yeards which were aparâ— of the Chanons Portions which had never paid Viccarage Iune 30. 1668. Minister of Elgin contra his Paâ—ochioners THE VIOLENT PROFITES of an Ox Spâ—ilzied in Labouring time was found to be 5. shilling every day during the Labouring time February 28. 1668. Lord Iustice Cleâ—k contra Hume of Linthil VITIATION of a Contract of Marriage diminishing the Tocher and Ioyntuâ—e by the Husband and Father after the marriage was found not to prejudge the Wife who consented not but her Right was extended as before the Vitiation in prejudice of the Husbands Creditors infeft by him albeit the Contract being Registrate the Viâ—â—ation could not not appear to the Creditors when they lent their Money Iune 11. 1670. Hunter contra The Creditors of Peter VITIOVS INTROMISSION was not â—lided because the Defunct dyed Rebel at the Horn and so there was nothing in bonis defuncti unless the Defender alleadged he had the gift of Escheat ante motam litem February 17. 1662. Gray contra Dalgarno Vitious Intromission was retrinched to single avail because the Defender entered in possession by a disposition of the moveables though no delivery or possession was in the Defuncts life February 27. 1662. Chalmers contra Dalgaâ—no Vitious Intromission was purged by the Intrometters confirming within year and day after the Defuncts death the Executry being his Wifes albeit after intenting of the pursuers cause Ianuary 28. 1663. Stevinson contra Ker and others Vitious Intromission was purged by a Disposition and Instrument of Possession in the Disponers Lifetime though the Defender judicially acknowledged there was no natural possession Iuly 6. 1664. Brown contra Lawson Vitious Intromission was not sustained after the Intrometters death against any representing him where there was nothing done to instruct it in his Life further than Quo ad valâ—rem but not as an universal passive Title Iuly 10. 1666. Cranstoun contra Wilkison Vitious Intromission was elided because the Intrometter had warrand from the Donator of the Defuncts Escheat thogh there was no Declarator seing the Warrand and Intromission was ante notam litem Iuly 4. 1665. Innes contra Watson Vitious Intromission was not inferred by intrometting with 50. pound the Intrometter having after his Intromission confirmed himself Executor and omited that sum but was only found lyable for the sum it self February 26. 1668. Râ—oth contra Cowan Vitious Intromission was found not receivable by Defense against an Assignay viz. That the Cedent who was Creditor to a Defunct was vitious Intrometter with his goods and so Debitor the Assignation being for an onerous cause Ianuary 20. 1671. Captain Ramsoy contra Henrison WARD was found not to fall by the death of an Appryzer who had Charged unless he had put the Superiour in culpa by preseâ—ting a Charter to be subscribed by him and offering a Sum with a Bond and Caution for what more the Lords should modifie for that years Rent and that therefore the Ward fell by the death of him against whom the appryzing was led February 9. 1669. Black contra French Ward being gifted by the King the Donatâ—r was found to have
was reduced upon that Sentence as posterior and prejudicial to the bargain Ianuary 21. 1669. Creditors of Pollock contra Pollock Witnesses were admitted to prove a Merchant compt as to Articles more then three years preceeding the Citation it being a curâ—ent accompt though begun by the Defunct and continued afâ—er hâ—â— deceass by his Funeral provision and by the Chamberâ—â—â—â— of his Heir then a Pupil seing three years intervâ—eâ—ed not in any part of the accompt February 26. 1670. Grahame contra Laird of Stanâ—byres Witnesses were admitted to prove the vâ—â—iation of a Contract of Marriage and not to annul it but to extend it as it was before the viâ—iation Iune 11. 1670. Hunter contra Creditors of Peter Witnesses were admitted to prove intromission with Mails and Duties of Tennents though silver Rent intrometted by one who was infeâ—t in an annualrent out of the Tenements albeit by the intromission the principal sum for which the annualrent was constitute would be satisfied and the infeâ—tment extinct February 4. 1671. Wishart contra Arthur Witnesses were admitted to prove an appryzing to be to the behove of the apparent Heir in respect of this concurrent presumpâ—ion that the appryzing was assigned to the appear and Heirs brother February 22 1671. Gordoâ—n contra Mcculloch Witnesses were admitted to proveâ— Ministers possession of â—ands to be by tollerance of an Herâ—â—or and â—o not â—o be a Glâ—ib belonging to the Kirk where the Ministers possession was decenâ—â—lis trienâ—alis but that writ was necessary if his possession haâ—t been for 40. years to prove the tollerance Iune 22. 1671. Minister of contra Duke of â—alâ—leugh WITNESSES EX OFFICIO were received for proving the delivery of a Bond blank in the Creditors name the matter being betwixt brother and sister where Trust was very presumâ—able February 21. 1667. Iohnstoun contra Iohnstoun Witnesses were examined â—x officio to prove Warrant or Command to a deed done in prejudice of him who had the Commission to do the same deed and could have â—indered others February 21. 1667. Lord Râ—â—toun contra Laird of Lambertoun Witnesses and the writer of a disposition were examined ex officio on thâ— Terms of the Treaty and whether when thâ— writ was read being an absolute disposition it was not read as being redeemable Iuly 2. 1667. Allan contra Fairie Witnesses ex officio being admitted hinc inde not the greatest quantâ—ty proven by two but the quantity proven most pregnantly was followed November 23. 1667. Lord Iustice Clerk contra Laird of Lambertoun Witnesses ex officio were examined to instruct the cause of a Bond to be by arbitriment and exorbitant it being 37. years dorment without annualrent and the sum filled up with a different hand February 6. 1668. Chisâ—holm contra Witnesses taken ex officio proving the imploying of a Wright in his woâ—â— in a Lodging possest by the â—mployer and his frequent direction anent the work were found to prove against his Heir though above 100. pound and though direction alone without sensible acts is only probable by writ or oath Iuly 21. 1668. Thomson contra Earl of Glencairn Witnesses ex officio 〈◊〉 â—â—de examined in a Reduction on death bed albeit the day of compearance was not come to prevent the death or collusion of the most necessary Witnesses February 16. 1669. Creditors of my Lord Balmerino and Cowper contra Lady Cowper Witnesses ex officio were ordained to be examined before answer for clearing a Trust of the right of â—n appryzing upon divers probabilities hinc inde alleadged February 24. 1669. Earl of Annandail contra 〈◊〉 and Crediâ—ors of Hume A Witness examined ex officio prevaricating in his oath first denying and then acknowledging the same thing was declared in famous and set on the Pillory with a Paper on his â—ace signifying his Fault Iuâ—y 6. 1669. Barclay contra Bâ—rclay Witnesses ex officio being examined were admitted to take away a Bond wholly blank or blank in the Creditors name Fâ—bruary 2 3. 1670. Iack contra Boyd of â—â—nkil and the Earl of Kâ—ngâ—orn conâ—ra Laird of Pâ—â—arro Witnesses ex officio were examined anent the being of a Bond amongst the Writs of a Creditor or his Factor that thereby the debitor might be liberat of the Bond as being retired but was not admitted to prove payment or saâ—isfaction thereof though it was an old Bond without any diligence or payment of annualrent for a long time February 14. 1671. Nâ—â—peir contra Earl of Egâ—â—toun Witnesses ex officio were examined in a circumvention for annulling a disposition made by a simple perâ—on of his whole Estaâ—e without reservation on these points whether the writ was read to him when he subscribed whether he was drunk so that reaâ—on and judgement was disordered and what motives were used to make him subscribe Iuly 11. 1671. Stevâ—ns contra Neâ—lson WITNESSES INSERT in a writ and the Writer were â—ound to have â—ccession as users of that writ as false yet was examined though they were socij criminâ—s and Forgers by their own confession being in an imporbation Ianuary 26. 1670. Lady Toâ—viâ— contra Capâ—ain Barclay A WODSETTER was found to compâ— for the superplus above his â—enâ— though the Woâ—set waâ— before the Act of Parliament 1661. betwixt Debitor and Creditor albeit therein the Vsurpers Act and all such Acts made or to be made were â—enunced Ianuary 29. 1662. Laird of Lamingâ—oun conâ—ra Cheâ—slie A wodset bearing in the Reversion a Tack â—aâ— within the worth of the Land to be given after Redemption was sustained as not Vsurâ—ry but the Wodâ—etter was at a great loss by a Liferent medâ—o â—â—mpore Iune 21. 1662. Laird of Polwarâ— contra Huâ—â— A Wodsetter pursuing for his money was found not to have access thereto tilll he recovered the Possession taken from him by a third party intruding seing he did not de recenti intimate the inâ—rusion and demand his money February 17. 1665. Hopringle of Torsonce contra Ker of Sâ—nderland-hill A Wodset being redeemedâ— upon an Order used though without citation of all parties having interest at the Mercat Cross on the declaraâ—or albeit thereby the Wodsetters Wiâ—e who had a base subaltern infeftment from him in Liferent was excluded and the Redeemer was not found obliged to know the same albeit registrate in the Register of Seasines Iuly â—7 1665. Hamiltoun contra her Tennents A Wodset by a Father to a Son redeemable by the Father during his Liâ—e from his Son on a Rosenoble beâ—ng craved to be declared the Son having appryzed and thereupon alleadging that he had right to the Reversion aâ— and while his Aâ—priâ—ing were Redeemed and till that his Father could not Redeem which at first was sustaâ—ned the case of the Son being favourable the Father having disponed the whole right to a second Wiâ—e but being thereafter debaâ—ed in presentia the Lords were of different judgements and decided not in respect the case seemed to hinder Debitors to Redeem aâ—terior Compryzings till they
the Contract may be yet Examined to clear the meaning of the Clause 2dly Albeit the Clause could not exclude her from a third of Money which is expresse therein yet not from a third of Moveable Goods and Geir which is not exprest and albeit the Clause bears and others it can only be understood of Rights due by a stated Security and the intent of the Clause has only been to substitute the Bairns of this Marriage Heirs of the Conquest and to exclude the Bairns of any other Marriage but did neither exclude the Father but that he might dispone on his Moveables albeit the Clause expresseth him but Liferenter thereof neither does it exclude the Mother from the third thereof And there was adduced a Decision in the Case of the Lady Oxenfoord wherein albeit by her Contract of Marriage she accepted certain Lands in full satisfaction of her Terce and third of all Lands Annualrents and others yet that was not found to exclude her from a third of Moveables but only from a Terce or third of Heretable Rights It was answered for the Children that their Mother having consented by the Contract of Marriage that all Conquest during the Marriage should be provided to their Father in Liferent and to them in Fee she had excluded her self as clearly and effectually as if she had Renunced her third thereof or accepted of her Jointer in full satisfaction neither is there a necessity that these words must always be used nor is this alleadged as a consequential Renunciation but as an expresse Obligation or Destination of the Husband consented to by the Wife which must have its native effect and so the Children must be Feears of the whole Conquest and therefore the Wife cannot be Feear of a third of it and albeit moveable Geir be not exprest the generality others must necessarily comprehend them being of the same nature with Sums which are exprest and may be Moveable and of less importance then they and the case wholly differs from that of the Lady Oxenfoord wherein nothing but Heretable Rights are exprest and it is an unaccustomed Clause amongst Persons of that quality to exclude Ladies from a third of Moveables but here Sums are exprest and it is most ordinar for Merchants to exclude their Wives from their Merchant Goods which is the greatest part of their Estate as to the meaning of the Parties clear Clauses cannot be enervat upon that ground and as for any thing exprest by the Husband It was on Death-bed in a great Fever whereof he Died and no Testament followed The Lords found that the foresaid Clause in the Contract did exclude the Relict from a Terce of Moveable Sums or Moveable Goods during the Marriage which could be understood to be meaned to be put upon Security at any time but that it did not exclude her from a third of the Houshold Plenishing Charles Casse contra Sir Robert Cunningham Ianuary 26. 1671. CHarles Casse having Sold to Sir Robert Cunningham his Right to the Lands of Achinhervy in his Minority pursues a Reduction of the same Disposition upon Lesion and condescends upon his Lesion thus that being Infeft for security of fourty thousand Merks and in an Annualrent effeirrand thereto whereof there were many bygone years Annualrent resting and yet he got only fourty thousand Merks for all The Defender alleadged Absolvitor because the Pursuer was satisfied of all his bygone Annualrents in so far as he having Apprized for five years Annualrents preceeding the Apprizing which was in Anno 1655. he had entered in Possession by vertue of the said Apprizing of the whole Lands of Achinhervie and so is Comptable therefore according to the Rental untill he cease to Possesse the same which will fully satisfie all his bygones so that he will have no Lesion 2dly He had not only in his Person the said Apprizing but the Infeftment of Annualrent upon which he being preferred in a double Poinding and excluding other Parties having also real Rights he is thereby obliged to do Diligence and be Comptable not only for what he intrometted with but for what he ought to have intrometted with The Pursuer answered that he was content to Compt for what he had Intrometted with but upon neither ground was he obliged to Compt for any further especially as to his Apprizing albeit Law and Custom had oblidged him to Compt for the whole Rental till the Apprizing were satisfied yet he could not be Comptable but for his Intromission after he was satisfiedâ— for then he had no title in his Person and it is clear that any Intrometter without a title is only lyable for his Intromission and all Parties having Interest might have hindred him to have Intrometted after he was satisfied and albeit a Tennent or Factor after the expiring of the Tack or Factory may be Comptable for a full Rental yet that is because they have a title per tacitam relocationem or tacitam commissionem but after the extinction of the Apprizing then no title remains and neither is he lyable as an Annualrenter even though he did exclude others to do any Diligence because all the effect of an Annualrent can only be to distresse the Ground or Poind the Tennents for as much of their Rent as is equivalent to the current Annualrents after which any other Party having Right may liâ—t the superplus and in this case the Annualrenter hath not been preferred as to any bygone Rents but only in timecoming and for his current Annualrents and the bygones are appointed to be brought in Accompt which was never determined The Defender answered that it were against all Reason that an Apprizer after he is satisfied should be in better condition then before he is satisfied and so as long as he meddles he must Compt by the Rental and it is his proper part who knows when he is satisfied to relinquish the Possession which other Parties cannot know till by a long Process of Compt and Reckoning it be determined and it were most absurd that in the mean time he should continue in Possession and though the Rents did in a great part perish he should not be Comptable therefore but only for what he actually lifted The Lords found the Pursuer as Apprizer Comptable according to the Rental not only for Intromission but Omission both till the Apprizing be satisfied and thereafter for all years of which he lifted any part but found not the Annualrenter lyable for Diligence albeit he did exclude others but the Case came not to be Determined if the Annualrenter had by a Personal Action insisted for more years Annualrent past to be preferred to the whole Rents till these bygones were satisfied that not being the case here in question In this Cause it had been formerly alleadged that the Pursuer after his Majority had Received a part of the price of the Lands in so far as having in his Minority granted a Commission to Mr. Iohn Smith one of his Curators
to uplift all Sums due to him and he having uplifted a part of the price of the Land from the Defender and bonds for the rest the Pursuer after his Majority had by his Discharge produced Received from his Curator and Factor the said Money and Bonds and Discharged him thereof and acknowledged that he and the remainent Curators had acted faithfully in all their Intromissions whereby the Pursuer hath approven and Homologat the Disposition of the Land made by him and his Curators which he now quarrels The Pursuer answered First That the Defense is not Relevant for Homologation being a presumed or conjectured Consent not by Word or Writ but by Deeds done which import the adhering to the Disposition quarrelled it cannot be inferred by any Deeds but such as can have no other intent or purpose consistent with the Rejecting or disapproving the Disposition but here the Receiving of the Money and Bonds from the Factor hath a consistency and congruity with this Reduction for the Pursuer knowing that he could not be restored against his Disposition unless he did restore what was Received by his Warrand might justly take up the same from his Factor that he might be in capacity to Consign the same at the Bar as if a Minor having Bought Lands to his Lesion and having Wodset a part of the same he might after his Majority Redeem the Lands Wodset by himself which although it behoved to proceed upon the Disposition as his Title yet it being a Deed necessar to purge the Wodset and repone the Disponer to his own Land free thereof it would never importan Homologation or if he had in his Minority excambed Lands and Wodset a part of the Lands he acquired thereby the Redeeming or purging of the Wodset after his Majority would import no Homologation so neither can any Deed import Homologation which upon any account can be consistent with the annulling of the Right quarrelled upon Minority 2dly This Dicharge does bear expresly relation to Mr. Iohn Smiths Accompt of Intromission Subscribed at the same time and bears that the Discharge should be alse sufficient as if the Accompt were insert Ita est in the Charge of the Accompt wherein only mention is made of the Sums payed by the Defender there is an express Reservation that the Accompt shall be but prejudice to the Pursuer to insist in his Reduction of the Disposition And as to that Clause in the Discharge that the Curators and Factor had done faithfully It relates only to their Intromission and not to their Omission and albeit it had born simply that they had acted faithfully that can only import that they had not acted Fraudulently and that they had done for the Minor what they conceived best but does not import that they had acted providently and skilfully so that the Minor may still Reduce their Deed. The Defender answered that his Defence was most Relevant being founded upon the Pursuers consent after his Majority for consent may be Adhibite not only by Word or Writ but by any Deed importing the consent as if a Minor giving a Bond in his Minority should pay a Terms Annualrent thereof after his Majority Or if a Minor intrometting with his Fathers moveable Heirship or Rents of his Lands in his Minority should continue to intromet for one Term or one Point further after his Majority in neither case would he be restored and yet such Deeds might be consistent and might be done to other intents as if his payment of the Annualrent did bear leâ—t before his Reduction he might be Distressed or that he continued his Possession lest the Rents or Goods might perish to the dammage of his party Yea though these were expresly mentioned in his Discharge and his Reduction were reserved it would be protestatio contraria facto and would not free him so neither can the Reservation in this accompt though it were repeated in the Discharge be sufficient especially seing he might have caused the Factor Consign the Money in the Clerks hands that it might be restored at the Discussing of the Reduction So that inconsistent Reservations or Protestations operate nothing 3dly The charge of this Accompt wherein only the Reservation is mentioned is a louse sheet of Paper subscribed with another Hand than the Discharge and has neither Date nor Witnesses and so cannot instruct that this is the very Accompt mentioned in the Discharge The Lords did not determine the Point of Homologation but before answer ordained the Curators and Witnesses in the Accompt to be Examined upon Oath whether the Charge produced be the same that was subscribed abinitio bearing the said Reservation But they inclined that the Reservation would take off the Homologation and would not be void as contraria facto Keir contra Nicolson Ianuary 28. 1671. JOhn Keir as Assigney by the Earl of Mar to some Feu-duties pursues a Poinding of the Ground against Nicolson of Tillicutrie who alleadged no Process because the Earl of Mar his Cedent had no right to thir Feu-duties which were due in his Fathers Lifetime whose Liferent was reserved â—whereupon compearance was made for Scotscraig's Heir who was Donator to the old Earl of Mar's Escheat and Liferent and concurred The Defender answered that the concourse could not be effectual because their bygone Feu-duties being moveable belonged to Scotscraigs Executor and not to his Heir and though the Concurrer was both Heir and Executor yet thir bygones belonging to Scotscraig as Donator being for years wherein Scotscraig lived they are moveable and ought to have been contained in the Inventar of his Testament as they are not It was answered that a Liferent-Escheat having tractum futuri temporis belongs not to the Executor even as to the bygones before the Donators Death unless they had been liquide and established in his Life but the Gift and all following thereon belongs to his Heir The Lords found that the bygones of the Liferent preceeding the Donators Death did belong to his Executor albeit in his Life he had obtained no sentence therefore Dowglas of Kelhead contra The Vassals of the Barony of Kelhead and others Ianuary 30. 1671. THe Earl of Queensberry being Superiour to certain Vassals of the Barony of Kelhead who did Dispone the Feu Duties and whole Casualities of the Superiority to Kelhead his Brother to the effect that Kelhead might be his immediat Vassal and that the Feuars might hold of Kelhead whereupon Kelhead was Infeft holding of Queensberry and thereupon pursues a Declarator of Non-entry both generally and specially in the said Summons It was alleadged for the Defenders absolvitor because they were not the Pursuers Vassals for albeit he was Infeft holding of Queensberry to the effect he might become their Superiour yet that Infeftment was null because no Superiour could interpose any Person betwixt him and his immediate Vassals Likeas the Non-entry could only infer the Feu Duty till Decreet or Declarator were pronunced which used to be per se but here