the Reasons proposed Neither have I Recorded any Decisions but what was determined while I was present being resolved to take nothing at a second hand These Decisions were Written with many different hands but all of them were then in my Family and some of them understood not the Matter by which and the haste I was forced oftimes to put them to there was much uncorrect but I did expect that I might have been present and have overseen the Press my self I began to cause Transcribe them with a better hand and did consider whether it were not fit to amplifie and embellish the Disputes so as might have been expected from so pregnant and eloquent Pleaders as our time hath afforded who have been nothing short of their Predecessors but I thought that this would look too like a new Frame from my own Fancy or Memory after so long a time and therefore I resolved they should be keept as they were at first Written and if so they prove uniform as it will be a great evidence of your Lordships Justice so it will be a strong proof that they are sincere and authentick having been Written on the several Sederunt dayes for more then twenty years together and therefore I do intâ—eat the favour that what is uncorrect may be excused and supplied from the Matter I had the best opportunity to make these Observations being scarce a day absent in any of these Sessions wherein I have marked them from the first of Iune 1661. until the first of August 1681. And I was not one day absent from the thirteenth of Ianâ—ary 1671. when it pleased His Majesty to appoint me to be constant President of the Session in place of my Lord Craigmiller who had then demitted except the Summer Session 1679. when I attended His Majesty by His own Command during all which time I hope your Lordships will bear me Witness that I never used Arrogance or Insolence or the least reproachful or bitter expression against any of the number and I do with great thankfulness acknowledge that I could not have expected more kindness and respect than I found from your Lordships which made me in gratitude take this Opportunity to testifie the Honour and Value I have for that honourable Society and that I am in great sincerity LEYDEN October 30. November 9. 1683. My Lords Your Lordships most humble Servant IA DALRYMPLE His Majesties Gift and Priviledge to Sir Iames Dalrymple of Stair for Printing his Institutions the Acts of Sederunt and Decisions of the Lords of Session CHARLES by the grace of God King of Great-Britain France and Ireland Defender of the Faith To all and sundry Our Leidges and Subjects whom it effeirs to whose knowledge these Presents shall come Greeting Forasmuch as Our Trustie and welbeloved Counsellor Sir James Dalrymple of Stair President of Our Session hath Observed and Written the Acts and Decisions of the Lords of Our Session since Our happie Restauration to this time and hath also Written the Institutions of the Law of that Our ancient Kingdom of Scotland And We being well satisfied with his pains and diligence therien and knowing his long experience and knowledge of the Laws and Customs of that Our Kingdom and his constant affection and faithfulness to Vs and being confident of the great benefit may arise to all Our Subjects of that Our ancient Kingdom by publishing of the saids Decisions and Institutions and being willing to give to the said Sir James all encouragement therein Therefore wit ye Vs to have Ratified and Approven Likeas We by thir Our Letters Ratifie and Approve the Contract agreed upon betwixt the said Sir James and Agnes Campbel and Patrick Tailziefer Merchant in Our Burgh of Edinburgh now her Spouse having the Right to and exercing the Office of Our Printer in Our said ancient Kingdom of Scotland for Printing of the saids Books in all the Heads Articles and Clauses therein contained whatsomever Prohibiting all others to Print the saids Books for the space of ninteen years without the special leave of the said Sir James his Heirs and Successors as the said Contract of the date the 26. â—f March 1681. yearâ— at length contained in the said Gift and Ratification under Our Privie Seal more fully bears Given at Our Court at Whitehall Aprile 11. 1681. years and of Our Raignâ— the 33. Year Per Signaturam manu S. D. N. Regis supra scriptam Act of Sederunt Decimo Iunij 1681. THe Lord President did signifie to the Lords that he having these twenty years Observed the remarkable Practiques or Decisions that had past in this Court either upon Debate in presence of the whole Lords or upon Report from the Ordinary in the Outter-house expressing not only the sum of the Debate as it was considered and resumed by the Lords with the Interlocutor But also the Grounds whereupon the Lords proceeded and being of intention to put these Decisions in Print he had acquainted the King therewith and had His Majesties allowance and approbation therein And the saids Lords considering that the Lord President has been at extraordinary pains in Observing and Collecting these Decisions and that the publishing thereof will be of great use and advantage not only to the Colledge of Iustice but to the whole Leidges They approve his Resolution to Print the saids Decisions and did render him hearty Thanks for undertaking this Work tending so much to the publick Good Errata vide after the first Index INDEX Of the Acts of Sederunt ACt for uniformity of Habite amongst the ordinary Lords Iune 5th 1661. Act for continuing Summons and Writing in Latine as formerly 1661. Act anent Wakenings June 11. 1661. Act for retaining the principal Writs presented to the Register and giving forth only Extracts thereof 1661. Act for Protestation Money July 4th 1661. Act for granting Commissions to Debitors who are sick or out of the Countrey on the Act Debitor and Creditor July 31 1661. Act discharging Lessons the last Moneth of the Session November 28. 1661. Act anent Executors Creditors February 28. 1662. Act anent granting of Bonds by apparent Heirs whereupon Apprizings or Adjudications may follow in prejudice of the Defuncts Creditors 1662. Act anent Advocats and Expectants not paying their dues 1662. Act discharging Confusion the last day of the Session February 21. 1663. Act in favours of the Keeper of the Minute-Book June 6. 1663. Act concerning the buying of the Citiedail September 8. 1663. Act anent the Seal of Court November 26. 1663. Act against general Letters June 8. 1665. Act for Keeping the Barâ—s June 22. 1665. Act anent Proâ—tutors June 30. 1665. Act Ordering no sight of Process in the Summer Session which were seen in the Winter before November 8. 1665. His Majesties Instructions to the Commissars February 20. 1666. Orders to be observed in Confirmations of all Testaments Ibid. Instructions to the Clerk Ibid. Act against Decreets for not Reproduction of Cessiones bonorum November 6. 1666. His Majesties Letter
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
Prisoners seing they had actually received this Prisoner but their keeping him in a private house ten dayes while a Treaty was continued with the Creditor was found not to infer disobedience of the charge or payment of the debt Iune 8. 1670. Cheap contra Magistrates of Faulkland Magistrates were not found lyable for the debt of a Rebel escaping who was arrested in their Tolbooth but the arrestment was not formal and whereas it bear that upon Caption the Messenger came to the Tolbooth and commâ—nded the Prisoner to continue in Prison as being arrested for that debt and that in presence of the Iaylour and that intimation was made to the Magistrates seing the intimation to the Magistrates was altogether improven and the arrestment in presence of the Iaylour contained three Witnesses whereof one affirmed and the other denyed and a third was dead and the Messenger was then Excommunicate for Crimes Iune 18. 1670. Hay contra Magistrates of Elgin Magistrates were found lyable for the debt of a Rebel escaping out of their Tolbooth albeit the Tolbooth had â—our locked Doors without one another and that the Rebel had gotten in some Masons Tools and broken up all the Doors in the Night seing they had not Chains and Bonds locked upon the ouâ—er sides of the Doors to which the Rebel could not reacâ— albeit their custom was very ancient to put on Cat-bonds only upon Prisoners imprisoned for Crimes February 11. 1671. Will contra Town of Kirkaldâ—â— Magistrates were not found lyable for the debt of a Person Incarcerate in their Tolbooth whom they had suffered to go free up and down their Streets several times whereupon the Creditor took Instruments and Protestation seing the suffering the Prisoner to go out was necessary to mendicat his Bread being altogether indigent and that he went once to the burial of a Child of his own and that he continued in Prison and died there February 14. 1671. Bain contra Baillies of Culross Magistrates were not found lyable for the debt of a Rebel whom they suffered to come out of Prison with a Guard to go to the Kirk or to the Fields for health or any other necessary cause as to time past in regard of their common custome so to do but that in time coming they should let none go out except upon great hazard by sickness and upon Testificates upon Oath and when other application could not saâ—ely and timeously be made to the Council or Session Iune 14. 1671. Town of Breichen contra Town of Dundee MANDAT or Warrand of a Servant taking off Furniture from a Marchand for his Master and giving his Recept and bearing that he had received such Furniture in Name of his Master and for his use was found not to oblige the Seâ—vant to pay nor yet to instruct that he had warrand but tâ—e warrand was presumed as known to the Merchant unless it were proven that the Servant did otherwayes imploy the Furnishing than to his Masters use and specially in the case where the Master was dead long ago November 17. 1665. Howâ—eson contra Cockburn Vide Command Vide Wiâ—e February 4. 1665. Paterson contra Pringle IN MAILS AND DVTIES the not calling of the Deâ—enders Master was not â—ound Relevant as in a Removing nor may the Tennents alleadge peremptorly on their Masters Right which is jus tertiâ— but they should have intimate to him to compear for himself and they may yet Suspend on double poynding and call the Party and their Master Iune 10. 1665. Hume contra In the Mails and Duties of a House the damnage sustained by the Tennent by the fall of a Neighbouring house was found to be allowed Ianuary 2. 1667. Hamiltoun contra MAINTAINANCE of August and September 1650. being destinate for the provision of the Army and assigned to these who advanced the provisions they were not found to be excluded by any subsequent quarterings Iuly 27. 1665. Rae contra Heretors of Clackmannan Vide Devastation here singular Successours were not liberate Iuly 28. 1665. Inter eosdem The Maintainance appointed to be uplifted by Bogie by the Act of Parliament 1661. which excepts singular Successors who bought the Lands was found not to extend to an appearand Heir who brooks by an appryzing which as to him is Redeemable within ten years for what he payed for it here it was not alleaged that the payed sums equivalent to the worth February 8. 1668. Weyms contra Laird of Tâ—lquhon Renewed Ianuary 20. 1669. Inter eosdem The Maintainance 1648. to be upâ—â—fted by Bogie was found not to extend to these who had exemption upon consideration of burning by the King and Parliament 1651 though that Parliament was Rescinded and though all exemptions were excluded by Bogies Commission seing by the Act Rescissory private Rights done by that Authority were excepted Iuly 21. 1668. Weyms contra Campbel of Edenample Maintainance for the year 1648. was found to burden Lands though they were now in the â—ands of singular Successoâ—s who had acquired the time of the Act Iaâ—uary 23. 1669. Weyms contra Frazer of Toâ—lie MARRIAGE pursued by a Donatar was not excluded because the Pursuer instructed not that the Lands held of that Superiour nor held Ward seing he disclaimed not nor by the Superiours Subscâ—ibing Witness in the Vassals Contract of Marriage after the Donatars Gift it was also found that the Marriage might be pursued both Realiter personaliter against the Vassal to pay February 25. 1662. Arbuthnet of Fiddes contra Keith Marriage being decâ—rned by the Commissar to be solemnized upon a Bond granted by a Man to a Woman bearing a Child to be gotten under promise of Marriage and it being alleadged that the Woman had been unchast since which as it would annul so much more hindeâ— the Solemnization of the Marriage and it being alleadged that the Child born after was presumed to be the same man's who got the first and so obliged to solemnize the Marriage The Lords found the presumption held not where there was no formal Marriage and so the Woman behoved to prove the second Child to be this mans Ianuary 31. 1665. Barclay contra Baptie Marriage of an Heir was â—ound due as to the single avail albeit the Heir was Married before his Predecessors death by a fraudulent precipitation to exclude the Superior from the Marriage he being Married when his Predecessor was moribundus without previous Treaty or Proclamation the Predecessor dying within some â—ew â—ays and showing no other sufficient cause of the said precipitation but to exclude the Superiour here were adduced the Testimonies of Skeins explications upon Quoniaâ— atachiamenta de maritagio bearing that this was praxis forâ— in his time and expressing three Decisions thereof February 20. 1667. Lord Thesauâ—er and Lord Advocat contra Lord Colvâ—â— Marriage vide Contract Vide Clause December 20. 1664. Young contra Buchannan MELIORATION of a Liferenters House by her was â—ound to oblige the Feear after her death in quantum Itucrâ—s est by a
of his Rent and also Discharges of publick burdens unless by writ or his Masters Oath he prove they were not allowed December 2. 1664. Veatch contra Paterson Presumption that Tickets of publick burdens were allowed to Tennents in their Rent was sustained to elide the Tennents pursuit thereon for payment thereof albeit his Tack bear a clause to relieve him of all publick burdens Here the Tennent left the Land several years before the pursuit and never did any diligence to get these allowed but it was sustained by the Masters Oath that these were not allowed December 20. â—664 Paterson contra Veatch Presumption of a Wifes Warrand to borrow a smal sum and impignorat a Bond therefore was sustained she having the Bond in her custody February 4. 1665. Paterson contra Pringle PRIVILEDGE of Burghs to arrest persons of find Caution of answer as Law will was found to extend to the Pear of Leith as a part of the Burgh Royal of Edinburgh its priviledge and if done by the Water Baillie but not if in the Burgh of Batony of Leith or by the Baron Baillie Ianuary 18. 1663. Hamiltoun contra Mitchel and Keith Priviledge of Burgh was â—ound not to extend to Incarcerat unfreemen found within their Burgh till they find Caution as Law will albeit by a former Decreet they were Decerned to desist from Merchandice competent to free Burrows and that thereby they might only seize upon these Goods by the Act of Parliament Ianuary 30. 1663. Town of Linâ—â—thgow contra Borrowstounness PROBATION of immemorial possession or Custom was not found instructed by a Decreet mentioning a former Decreet wherein the same was proven unless the Testimonies were extant or produced December 13 1664. Bishop of the Isles contra Hamiltoun Probation of a Disposition being onerous to exclude â—ucrative Succession and absolvitor thereon in a Process was not found sufficient as repeated from another Decreet not being de recentâ— except it had been after a long time when Witnesses were dead and in that case their Testimonies if extant behoved to be seen again Ianuary 6. 1665. contra Edmonstoun of Carden Probation of a Defense was admitted partly by Oath what was the Cause of the Bond and partly by Witnesses that the condition thereof was contraveened Iune 15. 1665. Aikman contra Probation of the Delivery of a great bargain of Victual was not inferred from the Declaration of a person intrusted by the Debitor to receive it seing there was a time limited to obtain his Declaration after which his condition and trustinesse might change and could not perpetually oblige the Intruster Iuly 18. 1667. Executors of the Earl of Dirletoun contra Duke of Hamiltoun Earl of Crawfoord and others Probation was found to be according to the most pregnant Testimonies though others Witnessed a greater quantity this was in a matter old and in the estimation of â—osse November 23. 1667. Lord Iustice Clerk contra Laird of Lambertoun Probation by one Witness and the Oath of the Pursuer in supplement in favours of a party who had been absent â—ut of the Countrey in the Kings Service pursuing for his share of a Ship and Goods against the remnant Owners medled with by them in Anno 1638. was sustained by the Admiral but Reduced by the Lords and the Pursuer ordained to adduce farther probation February 12. 1668. Captain Strachan contra Morison PROCESSES being Dispute to the full in presentâ—a The Lords by Act of Sederunt ordained the Clerks not to give up the same or any Process Dispute at full though there were no Interlocutor thereon But ordained it to be keeped till the Dispute were advised and Interlocutor pronunced Iune 6. 1665. Town of Edinburgh contra Thomson PROMISE to relieve a Cautioner who relieved the promisers Goods of poinding was found not probable by Witnesses though within an hundred pounds where the promiser was dead Iuly 3. 1668. Donâ—ldson contra Harrower A Promise by a Wife after her Husbands death never to quarrel a Tack of Liferent Lands which was in Writ for several years was found to exclude her and not to be as a verbal Tack valide only for a year but as pactum de non repugnando Ianuary 8. 1670. Scot contra Murray A PRO-TVTOR being an Overseer intrometting with the Pupils Bondâ— was found only lyable for the whole Bonds received by him though he uplifted the annualrent of a part of them only and for the annualrent thereof but not for any other means or Estate of the Defunct because there was no antecedent Law or Rule to oblige him but an Act to Sederunt was ordained to be made and published that all persons â—edling so in the future should be lyable both for intromission and omission as Tutors Iune 10. 1665. Swinâ—oun contra A PRYZE Ship was found not justly taken belonging to a Prince holding of the Kings Enemies unless he contribuâ—e to the War Ianuary 4. 1667. Harison contra Laird of Ludâ—uhurn A Prize Ship was liberate belonging to Neuters not the Kings Enemies nor Alies albeit carrying Counterband-Goods unless it were proven that the War was known at the place they â—oâ—sed from when they loused and that Acts of Hostility and declaring Prizes in Neighbouring places was not sufficient without publication of the War or knowledge thereof Iuly 23. 1667. Iurgan contra Captain Logan A â—rize Ship was found justly adjudged as carrying Counterband-Goods albeit a Swedish Shâ—p and by the Swedish Treaty such Counterband-Goods were allowed to the Sweds which was only understood they being the gâ—owth of their own Countrey Iuly 27 and 31. 1667. and November 6. 1667. Packman contra Captain Allan A Prize being taken pursued by two Privateers was â—ound equally to be divided betwixt both and not according to the proportion of their Guns seing the least and lightest of the Frigots did Seaze when the other was at a considerable distance and his concoâ—rse and conâ—ortship though made without consent or special Commission from the Owners being both in precinctâ— belli and profitable for the security of either party February 7. 1668. Cuningskie contra Captain Mastertoun Prize Ships being Questioned as having in them the product of Coâ—nterband-Goods carried in to the Kings Enemies in the same Voyage from which the Ship was returning was found not sufficient by the Tenor of the Admiral of Scotlands Commission bearing Warrant to seaze if the product of Counterband-Goods in that Voyage were found but by the Law and Custome of Nations and therefore the Lords granted Commission to â—ry the Custome of Holland France England and Spain February 21. 1668. Packman contra Allan A Prize being taken upon probable grounds and adjudged by the Admiral the Kings tenth part and Admirals fifteenth part being payed and the Goods sold the Decreet of Adjudication being Reduced the privateer was found lyable but for the value that the Goods might have given by rouping if they had been preserved and sold when and where they were adjudged February 24. 1668. Captain Mastertoun
the said â—ine of three pounds Scots from any Person whom they shall find within the said Barr. And in case the Party refuse to pay the same that they carry them to Prison untill they make payment thereof Certifying the saids Macers that if upon delation of them by any of the Clerks they shall be found negligent in performing of what is hereby enjoyned to them they shall be fined in the said sum of three pounds Scots and imprisoned during the pleasure of the Lords And this Sentence to be inflicted upon the Macers or other transgressors of this Act as oft as they shall be found to contraveen the same ACT concerning Priviledged Summons Iuly 21. 1672. THE Lords considering that divers Summons as declarators and others which by the constant from and practice of this Kingdom did always abide 21. days warning have of laâ—e been execute sometimes upon six days as being priviledged by deliverance of the Lords upon Bills given in for that effect and seeing these Bills being dâ—awn and given in by Writers to the Signet do passe of Course without perusal or consideration thereof by the ordinary which hath given occasion to the foresaid abuse And finding it expedient that it be determined for the future what Summons shall be Priviledged Therefore the saids Lords do ordain That in time coming all Summons shal come in upon 21 days warning And that none be priviledged by the Lords deliverance or otherways except these following viz. Removings Recent-spulzie and Recent Ejections where the Summons is Execute within 15 days after the comitting of the deed intrusions and coming in the Vice Causes alimentary Exhibitions Summons for making arrested Goods forthcoming Transferrings Poyndings of the Ground Waknings Special Declarators Suspensions Preventoâ—s and Transumpts And that Recent-spulzies Ejections Intrusions and Succeeding in the Vice be execute upon 15 days and that all the rest of the foresaids Summons be Execute upon six days and that the second Citation be likewise upon six days And it is further declared That all the Summons above-mentioned shall be priviledged as a foresaid whither the Summons bear a priviledge or not And the Lords do hereby prohibit and discharge the Writers to the Signet to Write Form or Present to the Clerks to be put in any Bills for priviledging any Summons but these above-exprâ—st Certifying such as shall coutravâ—en that for the first fault they shall be fyned in one hundred merks Scots to be applyed for the use of the poor and for the second fault they shall be deprived of their Office It is always hereby declared that this Act is not to be extended to Summons execute against Persons Inhabitants of the Burgh of Edinburgh or the contiguous Suburbs thereof who may be Summoned by the second Citation upon 24 hours conform to the custom formerly observed ACT anent payment of dues for Summons containing two dyets Iuly 11. 1672. FOrasmuch as the Lords after mature dâ—liberation did think fit That the former custom of continuing Summons and taking out of Act and Letters thereupon in all such Causes and Processes as formerly did require and abide continuation should be laid aside in time coming And that in Place and Lieu thereof the Summons in all Process of the nature foresaid should contain two distinct warrands for citing the Defenders at two several times and to two several dyets and dayes of Compearance with the same Certification as before was usual and contained in the first and second Summons respective And that Procâ—ssâ—s should be granted in the Causes foresaids upon Summons containing the warrands above-mentioned and Execute conform to the same as formerly was granted upon Summons Act and Letters And upon an overture given in and approven by the Lords of Articles An Act of Parliament hath followed and is made to that purpose As the Act of Parliament intituled Act discharging second Summons at length proports And seing the Lords of Session when they had the said alteration of the former Custom under their consideration thought it no ways reasonable that thereby either His Majesties Secretary or the Clerk of Register or the ordinary Clerks of Session his Deputes should be prejudged of their dues and profits formerly belonging to them respective And in regard the Summonds which are to contain the said distinct warrands for Citation are in effect and upon the matter two several Summons and are equivalent to Summons Acts and Letter and have the same effect to all intents and the profits formerly arising from all Acts of Continuation and Letters thereupon are a considerable part of the Dues belonging to the Lord Secretare Lord Register and his Deputs for their Incouragement and Service in their respective Officesâ— and upon the considerations foresaid it was resolved That notwithstand ing the said alteration the same should be continued and secured to them in manner after mentioned Therefore and in order to their satisfaction The Lords of Session does Statute and Ordain That for the Signing of all Summons which formerly did abide continuation and in lieu thereof shall now and hereafter continue the said warrands for two several Citations the keepers of the Signet shall have and may take as much as formerly he might have taken both for Summons and Letters while the same were signeted a part As also it is hereby appointed That all the saids new Summons containing two distinct warrands for citing to the Defenders two dyets be subscribed by the Clerk of Register or in his absence by one of his Dâ—puts or the ordinary Clerks of Session who at the subscribing thereof are to receive for the same the dues formerly payed for Act and Letters And the Lords do hereby discharge the keeper of the Signet to affix the Signet to any of these new Summons for two or more Citations but such as shall be subscribed by the Clerk of Register or his Deputes as said is and that no Process be granted upon auy such Summons unlesse they be subscribed by them in manner foresaid ACT concerning Bankrupts Ianuary 23. 1673. FOrasmuch as by an Act of Sederunt of the 26 February 1669. It is Satute an Ordained that all Decreets of Bonorum in time coming should contain a Clause ordaining the Persons in whose favour the Bonorum should be granted To take on and weare the habit of Bankrupts Which is a Coat or upper Garment which is to cover the Parties Cloaths Body and Armes whereof the one half is to be of a Yellow and the other half of a Broun Colour and a Cape or Hood which they are to wear on their Heads Partie-coloured as said is which habit they are to take on before they come out of Prison and come out with it upon them And that it shall be lawful to the Creditors to seiz upon and imprison any of them who shall be found wanting the foresaid habit And the Lords considering that this Course for preventing and punishing of Bankrupts hath through the in-observance of the same proven
with their Clients or others under the pain of being utterly excluded from exercising any Office in or depending upon the Colledge of Iustice and that all Advocats to be admitted hereafter have the same declared to them as a part of the Oath de fidâ—â— and obedience to the Lords which is â—eâ—customed to be given by Advocats at their entrie And We are graciously pleased that you proceed no further against those who gave in these late appealls nor â—gaâ—st these Advocats who refused to give their Oaths concerning their accession thereto providing these Advocats do somâ—nly disown these appealls and all other appealls and Protestations which may any way import a Charging of the Sentences of the Lords or their Inâ—eâ— locutors with un-justice and in case they refuse to disown the same We peremptorlie command you to debar them from the Exâ—rcâ—se of any part of their Function as Advocats in time coming And We do Authorizeâ— and strickly Command you to declare any membeâ— of the Colledge of Iustice or others who depend thereupon who shall not give obâ—dâ—ence in the particulars above-mentioned incapable to exerce any Office in or depending upon the Colledge of Iustice and for the better discovering cont ivances you are to receive no Supplications but such as are signed by an Advocat As also you are hereby required if need bees to put all who depend upon the Colledge of â—ustice to give their Oaths as Parties or Witnesses for dâ—scovering the contrivances and in case any other having no dependence upon the Colledge of justice shall present any thing Expressing or Importing the chaâ—ging of any of your Sentences with Injustice in the Terms foresaid or any other way We do Authâ—rize and Command you that you do immediately secure their Persâ—ns if they be presâ—nt and if they be absent that you isue forth Charges and all other Execution against them for that effect And that you give an accompt thereof to Usâ— That We may signifie Our further pleasure therein For doing of all which this shall be your sufficient warrand And so We bid you heartily Farewell Given at Our Court at Whitehall the 10 May 1674. And of Our Reign the 26. year Sic Subscriâ—itur By His Majesties Command LAUDERDAIL Iuly 23. 1674. ACT concerning Acts before answer THE Lords considering That in several Cases they are in use before discussing of the Relevancy of the points debated to ordain the Parties Pursuer or Defender or either of them to produce Writs or to prove certain Points of fact that they may have the whole matter intirely before them both as to the Relevancy and Probation whereupon Acts are Extracted Which are called Acts before Answer And in reguard Questions do and may arise concerning the import and effect of such Acts if the Parties be thereby so concluded as they may not thereafter propon new alledgances and what Terms and Dyets should be allowed for Probation and seing it will be a great prejudice to the Leiges if after Acts Extracted and Probation led thereupon Parties or their Pocurators should be permitted to to offer new alledgances not formerly insisted on in the Act for Probation whereof new Terms behoved to be asigned and thereby Processes would be drawn to a great length Therefore the saids Lords do ordain the Parties Procurators to propone all their alledgances in the Cause before or at the time of pronouncing these Acts before Answer And declare that after these Acts are Extracted they shall not be heard to propone any new alledgances which were competent but omitted to be proponed when the Act was pronounced And the Lords declare That where the Parties Pursuer or Defender are before answer to the relevancy burdened with the Probation of any point they shall have the same Terms or Dyets for Probation thereof as by the constant practice is allowed to Pursuers for proving their Lybells when the same are admitted to their Probation but if in the same Acts any point be found relevant and admitted to Probation that the Parties Pursuer or Defender to whose Probation the same is admitted shall have the same Dyets for proving thereof as are allowed to them respectivè in Acts of litis contestation But after the Probation upon the saids Acts is closed they shall not be admitted to adduce any other probation of any points formerly alledged in the Act. And further the Lords declare that where any Alledgance or Reply is founded upon Writs and that before Answer there to the Writs are ordained to be produced in case the Party burthened with the producing of these Writs shall fail therein and thereupon the Term shall be circumduced against him that the alledgance or reply in the Case foresaid shall be holden as not proponed ACT for tryall of those presented to be Ordinary Lords of Session Iuly Last 1674. THE Lords considering That the KING' 's Majestie by His Letter May 19. last did require them to present to His Majesty what Tryal they should think best and firest to be taken for Cognoscing the Qualifications and sufficiency of such Persons as His Majesty shall hereafter Nominat to supply any Vacant place in the Session and the saids Lords in answer thereunto having offered their humble opinions That thereafter when any new Lords of Session shall be presented by His Majesty for tryal of their Qualifications they shall sit three days beside the ordinary in the Utter-house and shall have inspection of the said Processes which shall be carried to Interlocutor and shall make report of the Points taken to the Interlocutor in presence of the whole Lords As also for compleating their Tryal they shall sit on day in the Inner-house and after any Dispute is brought to a Period and the Lords are to advise the same in order to the pronouncing their Interlocutor they shall resume the Dispute and first give their opinion there anent in presence of the whole Lords Likeas His Majesty by His Letter of the 14. of this instant having approven the foresaid Rule offered for the Tryal of such as shall be presented by His Majestie as ordinary Lords of Session and appointed it to be entred in the Books of Sederunt for that purpose The said Lords in obedience to His Majesties commands do ordain the same to be observed as the constant Rule in all time coming for Tryal of such Persons as shall be presented by His Majesty to be ordinary Lords of the Session And ordain these presents to be Recorded in the Books of Sederunt Ianuary 26. 1675. THIS day compeared Personally George Marqueâ—s of Huntly in presence of the Lords and declared that he having given Commission to divers of his Friends for managing his affairs during his absence forth of the Countrey who as he was informed had given in an Appeal in an Action pursued in his Lordships name against Gordon of Carnborrow and craved that in regard he doth passe from the said Appeall that warrant might be given to deliver up the same to him
Which desire the Lords granted ACT concerning Prisoners for Debt February 5. 1675. THere being an Address made to the Lords of Council and Session by the Keeper of the Tolbooth of Edinburgh representing That Persons imprisoned in the said Tolbooth for Debt upon Captions having obtained discharge of the Debt are pressing to be liberat upon production of the discharge without a Charge to set at Liberty which he refuses to do alâ—â—it the same be usually done by the Keepers of other Tolbooths And particularly by the Jailor of the Tolbooth of the Canongate and therefore dâ—siring that the Lords would allow him the same priviledge which is assumed by the Jailor of the Tolbooth of the Canongate or otherways to determine what both of them ought to do herein And the saids Lords having taken the general Case to their consideration and finding that where the Debt for which Persons are Incarcerat is in-considerable the Expenses of procuring â— Charge to set at Liberty will sometimes near equal the Debt it self the Prisoners being also poor and not able to satisfie the saids Expenses Therefore the saids Lords do Authorize and allow the Magistrates of Burghs to set at Liberty out of their Tolbooths Persons imprisoned for Debt by vertue of Letters of Caption upon production of a sufficient discharge of the Debt granted by the Creditor at whose instance they are incarcerat bearing a Consent to the Debitors Liberation and duly registrat if the sum do not exceed two hundred merks Scots and the Prisoner be not arrested at the Instance of other Parties the Magistrats or Keeper of the Tolbooth being always careful to keep an Extract of the said discharge and finds no necessity in this Case of a Charge to set at Liberty But if the sum for which the Debitor is Incarcerat exceed two hundred merks Scots the Lords discharge the Magistrats of the Burgh to Liberat him out of Prison without a Suspension and Charge to set at liberty under His Majesties Signet February 9. 1675. ACT anent Bills of Suspension THE Lords finding it expedient That some setled Rule and Order be set down concerning the presenting and passing of Bills of Suspension That any abuses which of late have creept in may be prevented in time coming do ordain that hereafter in time of Session no Bill of Suspension shall be presented to any Lord to be past but to him who shall be ordinary Lord for the time upon the Bills and that both in time of Session and Vacancy the Ordinary shall continue upon the Bills from Tuesday to Tuesday in the inseuing week And ordain the Bills to be presented only by the Clerk of the Bills or his Servant and when the Bill of Suspension shall be presented if the Ordinary after the perusal thereof find the Reasons relevant and sufficiently instructed that he passe the Bill And in case application shall be made to him by the other Partie concerned for a hearing the Ordinary shall Writ towards the foot of the Bill that before the Bill of Suspension be expede and go to the Signet the other Partie shall see and answer and in that Case he may stop execution for sometime not exceeding a moneth from the time of presenting the Bill And if the Ordinary shall reâ—use the Bill of Suspension he shall mark upon the back of the Bill with his own hand that the Bill is refused in respect the Reasons are either not relevant or not instructed which Bill the Clerk is thereby ordered to keep and mark with his hand upon the back thereof what Writs are produced for instructing the Bill And if the same Bill or any new Bill of Suspension upon that matter shall be desired to be presented to another Lord being Ordinary for the time the Clerk shall present to the Ordinary the Bill of Suspension which was formely refused In which Case the Ordinary is not to passe the Bill untill it be presented to the whole Lords in time of Session or to three Lords met together in time of Vacancy ACT ordaining Processes after Avisandum to be carried to the Ordinary that same day and reported in his Week Iune 2. 1675 THE Lords considering the inconveniences arising from the giving up of Processes to Parties or their Advocats after the same are taken to Interlocutor the reporting of Causes being thereby much delayed and it being contrary to the ancient Custom Therefore the saids Lords ordain that in time coming after any Cause is dispute before the Ordinary in the Utter-house and an Avisandum made therein to the Lords that the Process shal that same day be carried by the Clerk or his Servants to the Ordinary that he may peruse the same and that he may endeavour to report to the Lords the points taken to Interlocutor the next day thereafter or at fardest once in his Week And the Lords discharge either the Ordinary or the Clerk to give up or lend out to the Parties or any Person for them the Processes or any part thereof after an Avisandum is made therein to the Lords or when the Ordinary shall call for the Process to consider it himself And if any Act or Decreet pronounced by the Ordinary shal be stopped upon the desire of any of the Parties for a new hearing that the Lord who formerly hard the Cause shall go to the Bench in the Utter-house betwixt 8. and 9. a clock in the morning before the ordinary come out and call and hear the Parties Procurators wherein the Lord was Ordinary the immediat preceeding Week shall have the preference before any other Lord who was Ordinary in any of the former Weeks Likeas the Lords discharge any writen Dispute upon Bills of Suspensions or Advocation but where the Ordinary upon the Bills shall think fit to allow a Bill to be seen that he call the Parties the next day and hear what they have to say viva voce without taking in written answers Hugh Riddel sent to the Plaâ—tations Iuly 20. 1675. THE which day anent the Petition given in to the Lords by Iohn Riddel Merchant in Edinburgh shewing that Heugh Riddel the Petitioners only Brother having committed an unexcusable Crime Whereat the Supplicant blushes in cutting some Silver-buttons off a Gentle-mans Cloaths in the Utter-house during the time that the Lords were sitting and being therefore committed to Prison the saids Lords have most justly ordered him this day to be brought by the publick Executioner from Prison to the great door of the Session House at 9. a clock in the forenoon and to stand till 10. a clock with a Paper on his Fore-head expresing the Crime whereof he is guilty and thereafter to be taken by the foresaid Executioner to the Trone and there to stand with that Paper on his forehead from ten to eleven a Clock Which Sentence the Supplicant acknowledgeth to be less then the said Hugh Riddel deserveth only he being a young man and related to honest Parents and the Supplicants Brother and never known to
same Station and jointly Consult their Clients Causes which being contrair to the Custom always formerly observed and very inconvenient and prejudicial to the Leidges who are thereby put to Consult their Advocats severally and have not the benefit of their joint Advice as to the matter and manner of carrying on their Causes whereof the Lords have seen instances in their own presence by some Advocats their difiering and disclaiming the alleadgences proponed by others for the same Party For remeid whereof the Lords declare that if any Advocat in time coming upon the account of Personal prejudice or any other pretence shall reâ—use or forbear to Consult or Concur in the capacity of an Advocat with any others whom the Lords do or shall authorize to be Advocats that they shall be removed from their Imployments ACT concerning the sisting of Execution upon Bills of Suspension Iuly 3. 1677. THE which day the Lords considering that sometimes after Bills of Suspension are past the same are not exped at the Signet through the Parties fault in not finding Caution or other neglect and that Bills of Suspension are frequently by Deliverance of the Orpinary appointed to be seen by the Charger or his Procurators and in the mean time Execution stopped at the Chargers Instance indefinitly not limiting the same to a certain day And seeing some Question may arise if in these Cases Execution should be sisted and during what time For clearing whereof the Lords declare that where a Bill of Suspension is past and intimat or shown to the Charger or to the Messenger the time of the Execution but not expede at the Signet That Execution is only to sist for the space of fourteen dayes after the Date of the Deliverance passing the Bill unless the Ordinary upon further consideration by a Signature upon the Bill Subscribed by him discharge the expeding of the Bill untill a further day or allow the Suspender a longer time for expeding thereof providing the same exceed not a Month from the Date of the Deliverance of the Bill passing the same After elaâ—sing whereof of the Lords declare that the Charger may proceed to further Execution notwithstanding of the foresaid past Bill And if the Ordinary express no day but stop Execution indefinitly The Lords declare that the stop shall continue only for the space of fourteen dayes from the Date of the Deliverance as aforesaid but prejudice alwayes of Deliverances given by the Lords in presentia upon Petitions ordaining the Reasons of Suspension to be Discust summarly upon the Bill and in the mean time discharging execution In which case Execution is to sist untill the Cause be Discust or the Stop be taken off by the Lords And the saids Lords prohibite the Clerk of the Bills to write any Date upon the Deliverance of a Bill of Suspension but in presence of the Ordinary and that it be the true Date wherein the same is Subscribed ACT concerning the Suspensions of Protestations Iuly 10. 1677. THE Lords considering that the Act of Parliament doth appoint that where a Protestation is Suspended the Deliverance of the Bill should mention that it is the second Suspension and so forth of all the Suspensions obtained thereafter that the same is the third or fourth Suspension Yet notwithstanding by the Fault or Inadvertency of the Clerk of the Bills the same is not observed Therefore the Lords declare that where there is a Suspension past of a Protestation if the Deliverance of the Bill do not bear that the same is the second Suspension and so forth of any subsequent Suspensions that they will recal the Suspension albeit the same be exped at the Signet as being contrair to the Act of Parliament ACT against Sollicitations November 6. 1677. THE Lords taking to their serious consideration that by several Acts of Sederunt The Lords have formerly prohibited all Sollicitations in Causes depending before them whereby Parties did endeavour and expect favour by the Credit and Moyon of themselves or their friends interposing with the Lords and Personal respects not relating to the Cause to the great discouragement of others who had not the like friendship or moyon and to the great trouble of all conceiving it their interest and that it might be looked on as a slight or neglect if they did not upon all occasions by themselves or their friends Sollicit the whole Lords at their Houses lying scattered through the several places of the City imagining thereby to have much promoted their interest and payed respect to the Lords who have no regard to but are troubled with such Sollicitations it being their duty and design to do Justice to all impartially without respect of Persons Notwithstanding of which Acts and endeavours of the Lords against Sollicitations the same have been revived upon pretence of giving Information in the Cause but now seing written Informations are become ordinary and that all that ought to be represented to the Lords in any Case may easily without trouble be done by written Informations sent to the Lords by a servant which they will heartily accept and will not fail to peruse and finding it unfeasible to hinder Sollicitations so long as they admit of Verbal Information Therefore the Lords do declare that they will admit of no Sollicitation or Verbal Information in any Cause depending or that shall depend before them during the Dependence thereof either by the Parties themselves or by any other Person And to the end the same may be effectual against all importunity The saids Lords do Enact and Declare That it shall be a relevant Reason of Declinator against any of the saids Lords Ordinary or Extraordinary that they have received or heard any Sollicitation or Verbal Information in the Cause during the Dependence thereof But upon the first observing that the matter offered to be spoken to them did bear or import any Sollicitation or Verbal Information in a Cause depending if they did not use all the means they could to stop or withdraw to hear any further thereof Or in case any Sollicitation or Information in a Cause depending be offered by a Missive-letter if they do not present the same to the Lords Likeas the saids Lords do strictly Prohibite all Advocats Clerks Writers and others depending upon the Colledge of Justice or their Servants to offer to any of the Lords any Sollicitation or Information by Word or Letter but only by Written Informations Bills or Tickets for calling under the pain of Deprivation and being secluded from the House excepting the Clerk of the Process for clearing any Interlocutor or Minute in the Cause Likeas the saids Lords do declare That if any Party or others of the Leidges offer any Sollicitation or Information by Word or Missive that they will Ammerciat them as follows viz. Every Nobleman in three hundred merks Scots Money Every Baron or Knight in two hundred merks Every other Heretor Gentleman or Chief Burgesse in one hundred Pounds And every other Person in one
hundred merks toties quoties to be applyed for the use of the Poor It is alwayes hereby declared That the Verbal Information of any Party or other Person for him when required or allowed Judicially or before Auditors in Diets appointed for both Parties to be heard or before the Ordinaries upon the Bills in relation to the passing of Bills of Suspension or Advocation or before any of the Lords to whom either by consent of Parties or by appointment or Recommendation of the Lords an Accommodation in any Process is referred is no wayes hereby Prohibited And to the effect the Leidges may be secured against any prejudice which they may apprehend by debarring them from Sollicitation or Verbal Information the Lords do declare that there shall be free access for all Persons to Inform them by Written Informations only to be delivered by Servants and that in all Cases from time to time and for the more sure delivery of Informations they ordain that every one of the Lords shall have a Servant attending in his House fromâ— five a Clock to eight a Clock at night who shall be holden to receive any Informations doubles of Bills or Tickets for Calling that shall be given in without payment of any Money under such pain or punishment as the Lords shall think fit And which Informations Bills or Tickets shall be delivered by the Servants of Advocats or of the Parties and by none others And Ordain this Act to be affixed on the Wall of the Outter-House And to be Printed that none may pretend ignorance thereof ACT concerning Bills relating to concluded Causes November 9. 1677. THE Lords considering that sometimes after concluded Causes are Advised and Sentences pronounced therein Parties endeavour to delay the Extracting thereof for a considerable time and then do offer Petitions for alteration of the Decreet whereby the Process not being recent in the Memory of the Lords they are put of new to peruse the Process and Probation For remeidâ— whereof the Lords Declare that in timecoming they will not receive any Petitions in relation to the Stopping or altering of any Decreet or Interlocutor pronouncing upon Advising of concluded Causes unless the Petition be given in within the space of two Sederunt dayes after pronouncing of the Decreet or Interlocutor Suspensions of the Excise to be past only in presentia December 6. 1677. THE which day the Lords Ordained that no Suspension shall be past of any Charges given for His Majesties Annuity or Excise except in presence of the whole Lords Warrant anent Precepts for giving Seasine upon Retours February 15. 1678. THE which day the Lords Ordained that Bills craving Warrant to the Director of the Chancellory to direct Precepts to a Sheriff in that part to grant Infeftement upon Retours in respect of the Sheriffs refusal to Infeft the Party shall not be past in time coming by the Ordinary upon the Bills but the same shall be past by the whole Lords in presentia and the Lords discharge the Director of the Chancellory to direct or give out any Precepts to Sheriffs in that part for granting Infeftment upon Retours unless the Warrant be past in presentia as said is ACT in Favours of the Lord Register February 22. 1678. THE which day the Lords considering that the Kings Majesty hath nominated and appointed Sir Thomas Murray of Glendook one of their number to be Clerk of Register with power to him to receive all the Profites of the Office since the advancement of Sir Archibald Primerose to be Justice-General and he being accordingly admitted to the said Office Therefore the Lords do grant Warrant to the Lords Newtoun and Hercus to take the Oaths of these Persons who by their Warrant were intrusted with the keeping of the publick Registers which were in the Custody of the late Clerk of Register if they have abstracted or imbazeled any of the said Register Books or Warrants or if they be all intire and in the same order as they are set down in the Inventar insert in the Books of Sederunt And ordain the Keys of the Rooms wherein these Registers are viz. that below the Parliament-House and of the Chamber in the Castle of Edinburgh to be delivered to the said Lord Register And grants Warrant and Order to Mr. Alexander Gibson one of the Clerks of Session to make Compt and Payment to the said Lord Register of the Dues of the Clerk of Registers Office which he has intrometted with by Warrand of the Lords and declare that this Act with the said Lord Register his receipt shall be a sufficient Exoneration to the said Mr. Alexander Gibson thereof ACT Discharging Clerks to lend out Processes to any except Advocats and their Servants February 26. 1678. THE Lords considering the abuse committed by giving out of Processes to some Persons attending the House and pretending to Negotiat in and mannage Processes who are neither Advocats nor Servants to Advocats For remeid whereof the saids Lords Discharge the Clerks of Session and their Servants to give up or lend out to any Persons any Processes or Writes produced therein except only to Advocats and their known Servants And the Lords Declare that each Advocat shall be allowed to have one Servant and if any shall desire to have more Servants allowed to them then one appoint them to represent the same to the Lords and they will take it unto their Consideration ACT prohibiting the Clerks to give up Bills relating to Processes whereupon there is any Deliverance of the Lords Iuly 23. 1678. THE which day the Lords did Discharge the Clerks to give up to Parties any Bills or Petitions whereupon there are Deliverances relateing to Interlocutors or Decreets in Processes except where the same are appointed to be seen and Answered And appoint the Clerks to keep the foresaid principal Petitions bearing Deliverances of the Lords and to give out to parties only doubles thereof ACT Discharging Advocats and Writers Servants to Write their Masters Subscription Iuly last 1678. THE which day the Lords Considering that there is a corrupt Custom lately crept in of Advocats and Writers Servants adhibiting their Masters Subscriptions to Petitions and Bills given in to the Lords which is not to be endured Therefore the Lords declare that if in time coming the Servant of any Advocat shall presume to Adhibite and Write his Masters Subscription to a Petition or to the out-giving or return of a Process or if the Servant of any Writer to the Signet shall Adhibite his Masters Subscription to a Bill of Suspension or other Bill used to be drawn by Writers that they will proceed against and punish these Persons as falsaries and forgers of Writes ACT Ordaining Hornings and Inhibitions to be Booked which were not Booked the time of the Vsurpers Ianuary 3. 1679. THE which day the Lord Register Newtoun and Hercus did make Report to the Lords that conform to the Warrand given them of the fourth of December last they had considered the condition of
security of the whole Leiges Yet the saids Lords understanding that by reason of the late Troubles and the Confusions ensuing thereupon Especially during the time of the Usurpers these Acts have been neglected to be put in Execution In so far as many Nottars are Deceased whos 's Protocals are not returned to the Clerk of Register or his Deputes but do remain in the hands of their Relicts and Children which occasions divers inconveniencies and divers of their Protocalls are upon perusal found to be Defective and Unformal and some of their Cautioners are not sufficient Likeas divers Persons pretending to have been admitted under the Usurpers do presume to Officiat as Nottars albeit they be not lawfully Authorized so to do For redresse of which abuses and disorders The Lords do Ordain Letters to be direct at the Instance of the Clerk of Register or his Deput Clerk to the admission of Nottars for charging the Relict and Executors of such Persons as are Deceaâ—ed and their Cautioners to bring in and deliver to them the Protocall Books of the saids Nottars conform to the Act of Parliament and their Respective Acts of Admission And also Ordains General Letters to be Direct at the Instance of the Clerk of Register or his said Deput for charging such Nottars as they are informed to have Protocalls Detective or Informal to produce their Protocalls before the said Deput at the head Burgh of the Shire where the Nottar does Reside and where the Cautioners found for any Nottar is insufficient to charge that Nottar to find new and more sufficient Caution And Ordain these General Letters to be Execute upon six days and that against such Particular Persons only as shall be given in a List under the hand of the Clerk of Register And the saids Lords do hereby prohibit and discharge all Persons who were admitted Nottars under the Usurpers to Officiat as Nottars untill they be of new admitted And the saids Lords considering that it is Statute and Ordained by Acts of Parliament and specially by the 78. Act Parliament 5. Iames 5. That all Sheriffs Stuarts Bailzies and others both to Bâ—rgh and Land shall present their Clerks in presence of the Lords of Session to be Examined Sworn and admitted by them and seing the Clerks of these Courts have neglected for some time by past â—o compear before the saids Lords to be tryed and approven by them and it being necessary and the publick Interest of the Leidges that these Acts of Parliament be punctually observed in time coming Therefore the saids Lords do ordain and require all persons who hereafter shall be nominate Sheriff Clerks Clerks of Sâ—ewartries and Bailiries before they enter to and exerce their Office of Clerkship to compear before the saids Lords that they may be tryed and approven by them conform to the Act of Parliament Certifying them if they failzie therein they shall be deprived of their Offices ACT concerning Bills of Suspension November 9. 1630. THE Lords considering that by former Acts of Sederunt of the 9. of February 1675. and the 3. of Iuly 1677 They did give Warrant to the Ordinary upon the Bills to allow a sight of a Bill of Suspension to the Charger and to stop Execution for some time not exceeding a Moneth declaring also that a Bill of Suspension signed by the Ordinary though not expeded at the Signet should import a stop of Execution for the space of fourteen dayes from the date it was signed that in the mean time sufficient Caution might be found and that the Clerk of the Bills might enquire anent the condition of the Cautioner And now finding that abuses have crept in stops being procured from several Ordinaries from time to time and that when the first fourteen dayes after a signed Bill were elapsed a new one was presented and past which stopped Execution for other fourteen dayes and so might continue for a long time Therefore the Lords do declare that they will give no stops of Execution hereafter upon Bills of Suspension fourteen dayes from the date being a sufficient time both for seeing and expeding the Bill And Declares all other stops to be void except where Causes are ordained by the Lords to be Discust upon Bills and ordains the Clerk of the Bills to make a Minut-book both of past and refused Bills by the Alphabetick Order of the Parties sirnames which he is to make patent to any Charger that shall desire to see the same gratis and discharges him to present any new Bills in that Cause except to the whole Lords in time of Session or to three Lords in time of Vacance as he will be answerable at his peril and because Parties or their Procurators are accustomed to procure Suspensions upon pretence that the Copy of the Charge given by the Messenger is general or unformal and for verrifying thereof do produce forged Copies and sometime forged Writes for instructing Reasons of Suspension founded thereupon never intending to make use of the same and therefore do suffer Protestations to pass For remeid whereof the Lords do declare that if the Charger shall produce such a Suspension or a duplicat thereof under the hand of the Keeper of the Signet that in that case the Lords besides the ordinary expenses of Protestation will modifie large Expenses to the Charger for his delay and in case Protestation shall not be admitted but the Suspension shal come to be Discust and at the Discussing the Charge or other Writes mentioned in the Reason of Suspension be not produced The Lords Declares they will hold these Writes false and sorged and modifie large Expenses to the Charger but prâ—judice to insist against the forger of the saids Copies or Writes and ordain a Copy of this Act and of the other two Acts above-mentioned to be affixed upon the Wall of the Outter-House and Copies thereof to be delivered to the Clerk of the Bills to remain affixed on the Wall of the Bill-Chamber that he may exactly observe the same ACT anent the marking of Advocats Compearance for Defenders November 25. 1680. THE Lords declares that in time coming where several Defenders are conveened in one Summonds and that at the calling thereof by the Clerk an Advocat shall be marked compearing indefinitly for the Defenders and who shall likewise return the Process that Advocat shall be holden compearing for all the Defenders unless by the return upon the Process he qualifie his Compearance and express for which of the Defenders he compears and for which of them he doth not compear ACT in favours of the Macers February 15. 1681. THE which day there being a Petition given in to the Lords by their four ordinary Macers representing that where the Lords are in use upon application of Parties to grant Commissions for taking the Oaths of Parties and the Depositions of Witnesses in Causes where it appears by Testificats produced that the Parties or Witnesses are through age and infirmity unable to travel And sometimes Commissions
and a Donation pro reliquo which many thought strange seeing a Bond of 100. Sterling mentioned 14th Instant reâ—eired and payed by the Mother and being proven by Patrick Scots oath so to have been done to the satisfaction of most of the Lords which was clogged with no Provision was not allowed to be in Satisfaction of these Bairns Portions Bosewel contra Bosewel November 22. 1661. JOHN Bosewel Pursues Bosewel of Abden as representing Henry Bosewel his Father for payment of a 1000. pounds due to the Pursuer by the said umquhil Henry and insisted against the Defender as lucrative Successour by accepting a Disposition of Lands and Heritage from the said umquhil Henry whereunto he would have succeeded and was therein his appearing Heir The Defender alleadged he was not lucrative Successor because the Disposition was for Causes onerous The Pursuer answered non relevat unless it were alleadged for Causes onerous equivalent to the worth of the Land as was formerly found in the Case of Elizabeth Sinclar contra Eâ—phingstâ—â—â— of Cardoâ—â— The Defender answered maxime relevat to purge this odious passive Title of lucrative Successor which is no wheâ—e sustained but in Scotland specially seeing the Pursuer hath a more favourable remeid by Reduction of the Disposition upon the Act of Parliament 1621. if the price be not equivalent and there it is sufficient to say it was for a considerable sum or at least it exceeded the half of the worth for there is latitude in buying and selling and as an inconsiderable Sum could not purge this Title so the want of an inconsiderable part of the full price could as litle incur it The Lords before answer ordained the Defender to produce his Dispositior and all Instructions of the Cause onerous thereof that they might consider if there was a considerable want of the equivalence of the price here the Defender pleaded not that he was not alioqui successurus the time of the Disposition being but Consing German to the Defunct who might have had Children Dowglasse contra Iohnstoun Eodem die EODEM die In the Competition between Dowglass in Abernethie who Confirmed himself Executor Creditor to Gilbert Weymes in Dumblane where Gilbert dwelled and Iohn Iohnstoun as Executor Confirmed to the said Gilbert by the Commissars of Edinburgh because Gilbert in a Voyage from Scotland to Holland died at Sea The Lords found the Commissars of Edinburgh to have no Right unless the Defunct had died abroad animo remanendi This Interlocutor was stayed till the Commissars were further heard Marjory Iamison contra Rodorick Mccleud December 3. 1661. MARIORI Iamison Relict of umquhil Mr. Iohn Alexander Advocat pursues Rodorick Mccleud for payment of a Bond of Pension of 200. merks yearly granted to her Husband bearing For Service done and to be done The Defender alleadged the Libel is not relevant unless it were alleadged that Mr. Iohn had done Service constantly after granting of the of the Pension which the Lords Repelled The Defender alleadged further that he offered him to prove that Mr. Iohn did desist from his imployment as Advocat after the Pension and became Town Clerk of Aberdeen and the Pension being granted to him who exerced the Office of an Advocat at that time must be persumed for his Service as Advocat The Lords Repelled this Defense in respect of the Bond of Pension bearing For Services done and to be done generally Sir Robert Farquhar contra Lyon of Muiresk Eodem die SIR Robert Farquhar pursuing a Reduction of a Disposition against Iohn Lyon of Muiresk upon Circumvention The Lords granted Certification unless not only the Extract but the Principal Disposition were produced in respect they were registrate at that time when the Principals were given back to the Parties Thomas White contra Crocket December 4. 1661. THOMAS White pursues Patrick Crocket in Eliot to make payment of the sum of 600. merks which the Pursuer alleadged he had in a Leather-Girdle when he lodged with Crocket being in an In-keepers House and that the Defender promised that the Pursuer should want nothing after the Pursuer had shown him the said Girdle yet the Defender came ordinarly in the Chamber where the Pursuer lay that night and he wanted his money from under his head which he declared and shew to the Defender the next morning and therefore according to the Law nautae caupones stabularij c. which is observed in our Custom the Defender as Keeper ought to be Decerned to restore The question was here only of the manner of Probation The Lords found all the Libel Relevant to be proven pro ut de jure and declared that these being proven they would take the Pursuers oath in litem upon the quantity Baillie of Dunnean contra Town of Inverness Eodem die BAILLIE of Dunnean pursues the Town of Inverness for violent Intromission in his Moss and molesting him therein both Parties were content to Dispute as in a Molestation The Defenders alleadged Absolvitur because the Town of Inverness was Infeft in their Bâ—rgh and Burrow-lands with common Pasturage in Montkaplâ—ch and offered them to prove the Moss contraverted was a part of Montkaâ—loch and that they have been in constant Possession thereof accordingly The Pursuer Replyed the Defense ought to be Repelled because he offered him to prove that he was Infeft in his Lands of Dunnean with Parts and Pertinents and that the Moss contraverted was proper Part and Pertinent of his said Lands and that he was in use to debar the Defenders therefrom and to get Moss Mail for tollerance to cast therein and produced the same under the hand of nine of the Citizens and one by their Clerk and therefore being in libello ought to be preferred in Probation The Lords before answer granted Commission to Examine Witnesses hinc inde upon the Possession of either Party Which being Reported the Defenders craved the same with the Dispute to be Advised The Pursuers Procurators alleadged there was yet no Litiscontestaâ—ion and they were not Insisting and the Defenders could not compell them to Insist without a Process to Insist with certification in which case they would get a day to Insist The Lord found that the Probation being taken before Answer was equivalent to Litiscontestation as to the Points Proposed and that they miâ—ht proceed both to Advise the Points of Probation and Relevancy together and might instantly Decern accordingly albeit it hindred not the Parties to Propone other Alleadgences in jure then it were in the Dispute as in ordinary Litiscontestation and therefore the Lords considered the Parties Infeftments specially that of the Town of Inverness bearing with liberty to them to cast Fail and Divote in the Month of Kaploch and several other Months according as they were accustomed of before Which Clause the Lords found to be Qualified and Taxative and not to give an absolute Right of Commonly but only such as they had before which behoved to be cleared by Posterior long Possession and
and therefore as is ordinar in all Clauses in relation to Heirs which cannot be effectual if Heirs served be understood their Heirs appearing are understood verba sumenda sunt cum effectu The Lords also Repelled this Defense Thirdly The Defenders alleadged absolvitor Because first Clauses de non alienando are never understood to extend to necessary alienations as for provision of the Feears Wife and Children for Redemption of him from Captivity or any other accident without his Fault Secondly Clauses de non Contrahendo debitum are against Commerce and utterly rejected Thirdly Clauses irritant are resolutive albeit contained in the Infeftment are but personal obliegements and the ground of an Action against the contraveener but if the Contraveener be denuded are not effectual against singular Successors Especially Creditors Contracting bonafide with one standing Infeft before the matter became litigious by Processes upon that Clause seing no Inhibition was used ita est thir Creditors had Apprized and were Infeft before any such Processes upon this Clause or Inhibition used and no personal provision could transmit the Right from Annandale to Stormount upon contraveening the Clausses nor could hinder the transmission thereof from Annandale who had the only real Right to the Creditors by vertue of their Appryzings and Infeftments which denuded Annandale of the real Right and which real Right stands now only in the Person of the Creditors Infeft so that there can be no more in Stormounts Person but a Personal Provision for the being within the body of the Infeftment will not make this Clause real and to affect the Right quo ad singulares successores more then the Clause of Warrandice in the Infeftment which without question reaches not singular Successors and albeit some Provisions in themselves Personal may affâ—ct singular Successors as the Provision that if two years run together the Feu shall become void or the Clauses of Reversion or the Inherent Clauses or quality in Ward holding but these become real by Law and Statute for we have a particular Act of Parliament anent Reversions to be effectual against singular Successors and another anent Feus â—b non solutum canonem and there is no other case that such Provisions are real The Pursuer answered to the fiâ—st albeit alienations do not comprehend judicial Alienations by Appryzing in Recognition and are oftimes not extended to necessar Alienations Yet here the Clause bears expresly not to altenat and also to do no Deed whereby the Laws may be Evicted and Apprized without which the Clauses de alienando were utterly ineffectual and repeats the same to tâ—e second As to the third albeit de facto the real Right be in the Appryzers Infeftment yet it is in them effected with that quality in the condition and bosome of it that gives good ground not only against the Earl of Annandale Contraveener to annul his Right But also the Apprizer in consequence quia resoluto jure dantis resolvitur jus accipientis Especially in Feudal-rights where provisionis investiturae sunt legis feudi as all Feudists agree and therefore all such Pactions and Provisions are equivalent to Law 2d This Clause of the Infeftment is not only resolutive but also is an Interdiction Prohibiting the Feear for the time to alienat or do any Deed prejudicial without consent of such other Persons of the Tailzie were Majors for the time and therefore though the Pursuer should enter Heir to Annandale he might annul these Rights just as in the Case of an Heir of an Interdicted Person who may annul all Rights by his Predecessors after the Interdiction The Defenders answered that as to this Point concerning the Interdiction it cannot be effectual because by a particular Act of Parliament all Interdictions are appointed to be published and to be Registrat in the Registers of Inhibitions otherways they are null This Interdiction is neither published nor Registrat in that Register The Pursuer answered it is al 's publick because it is not only in his Infeftment at the great Seal but it is verbatum in the first Seasine and repeated in the Earl of Annandales Retour and Seasine so as that the Creditors ought to have considered his condition when they lent him Money and known that he was Infeft otherwise their mistake though it might be alleadged to be bona fidae yet if Annandale hade never been Infeft their bona fides would have wrought nothing seing therefore they did it on their peril unless they knew he was Infeft and they could not know he was Infeft by inspection of his Seasine or of the Register but they behoved to know this Clause which is verbatum in it The Lords did also Repel this Defense and Duply in respect of the Reply and Triply and found the resolutive Clause effectual against singular Successours especially considering it was so publick and verbatim in the Seasine and that it was equivalent to an Interdiction Thirdly The Defender further alleadged absolvitor because the pursuer hadâ— behaved himself as Heir to the Earl of Annandale by Intromission with the Mails and Duties of the same Lands The Lords Repelled this Defense because the Pursuer having intented Declarator against Annandale in his own life they thought the provision was equivalent to an Interdiction which purged that passive Title Creditors of Kinglassie February 27. 1662. IN the Competition betwixt the Creditors of Kinglassie mentioned the former Day the Dispute anent the base Infeftment made publick by the poinding of the Ground so long before the Term of payment being reasoned before the Lords in presentia they sustained the same as before Marjory Chalmers contra William Dalgardno Eodem die MArjory Chalmers pursues William Dalgardno as vitious Intromettor with a Defuncts Goods to pay his Debt who alleadged absolvitor because the Rebel died at the Horn and so had no Goods Secondly The Defender hath the gift of his Escheat and also is Executor Creditor Confirmed to him Thirdly The Defender had a Disposition of all the Defuncts Goods albeit he possessed not thereby during his Life yet he might Enter in possession after his Death and not be vitious Intromettor The Lords found this Defense Relevant to elide the passive Title but prejudice to either Party to Dispute their Rights as to the simple avail of the Goods and they Repelled the first Defense and found the second and third Defenses Relevant only if the Gift was before the Intenting of this Cause William Hamiltoun contra Mcfarlane of Kirktoun February 28. 1662. WIlliam Hamiltoun pursues Iames Mcfarlane of Kirktoun as Successor titulo lucrâ—â—ivo to his Father to pay his Debt who alleadged absolvitor because he was not alioqui successurus in respect that at the time of the Disposition he had and hath an Elder Brother who went out of the Countrey and must be presumed on life unless the Pursuer will offer to prove that he was Dead before this Disposition so that at the time thereof the Defender was not
Infeftment in Possession 7. years before the warning by vertue of a Gift of ultimus haeres granted by the English Exchequer The Pursuer answered ought to be Repelled because the foresaid Gift is null ipso jure in so far as it is not confirmed by the late Act of Parliament anent judicial proceedings in the Usurpers time wherein Gifts of Bastardy and ultimus haeres were excepted The Defendet answered 1. That his Infeftment being cled with 7. years Possession cannot be taken away by exception neither is he oblieged in hoc judicio possessorio to Dispute the validity thereof 2ly The said Act of Parliament doth not declare it null much less null by Exception such Gifts but doth only not confirm them The Lords Repelled this Defense and found the Infeftment null in it self seing it was not confirmed The Defender further alleadged absolvitor from this warning because the Pursuers Gift is not yet decalred It was answered for the Pursuer no necessity of Declarator because it cannot be ever made appear that any such thing was required or was in Custom and Use more then in the case of a Gift of Ward or a Gift of Forefaultry The Lords found that this Gift behoved to be declared in the same way as a gift of Bastardry William Zeoman contra Mr Patrick Oliphant WIlliam Zeoman as having Right by an Appryzing to the Lands of Newton pursues Mr. Patrick Oliphant to hear and see it found and declared this his Appryzing was satisfied by Intromission with the Mails and Duties within the Legal The Defender alleadged Appryzing cannot be satisfied by his Intromission because any Intromission he had was by vertue of other Rights viz. Mr. Iames Oliphant the common Author having killed his own Mother and thereupon he being declared Fugitive not only upon the Paricide but upon a Criminal Dittie againstâ— him upon committing Murder under Trust which is Treason The Defender obtained Gift of his Forefaultry and thereupon stands Infeft and in Possession The Pursuer answered non Relevat 〈◊〉 Because the Act of Parliament against Paricide doth not declare it to infer Forefaultry but only that the committer thereof should be excluded from Succession and as to the committing of Slaughter under Trust the Act of Parliament expresseth what it meaned by Trust viz. though getting assurance from persons that had been formerly in variance 2ly vvhat ever the cause were yet the Infeftment upon the gift of Forefaultry cannot be respectedâ— unless there had been a Doom of Forefaultry pronunced for all that the Justice General does is to charge the party accused to find Caution to underly the Law and if he appear not he is Denunced Rebel and his Escheat only falls or if having found Caution he appear not in causa he is Denunced Fugitive which hath the same effect but none of them can inter Forfaulture unless Doom of Forfaulture had been pronounced which the Justice doth not but when the Defender compears albeit the Parliament Forefaults persons absent having taken probation of the Libel contra absentes and unless the Justice had either cited the party with Letters of Treason under certification of Treason and that certification had been granted or had cognosced the Crime The Defender being present the Gift of Forfaulture can work nothing The Lords found the Reply Relevant unless the Defender would alleadge as aforesaid because the Defender was not clear in the matter of Fact they before answer Ordained him to produce the Gift and Warrands Creditors of Andrew Bryson contra his Son November 14. 1662. IN an Accompt and Reckoning betwixt the Creditors and Bairns of umquhil Andrew Bryson the Auditor being warranted to call all Parties havers of the said umquhil Andrew his Compt Books before him his Son Mr. Andrew being Called and Examined upon Oath Depones that he neither has them nor had them since the intenting of the Cause but refused to Depone upon his having of the same at any time before or upon his knowledge who had them The Lords having heard the Auditors Report thereanent found that he ought not to be examined upon his knowledge who had them but that he ought to Deponeâ—f at any time before the Citation he had the same and frandfully put the same away quia propossessoria habetur qui dolo possidere Mr. Thomas Nicolson contra Lairds of Bightie and Babirnie Eodem die THere having been mutual Molestations betwixt Mr. Thomas Nicolson Advocat and the Lairds of Bightie and Babirnie anent a common Pasturage in the Muire of Bighty lying contigue to all their Lands It was alleadged for Babirny that he ought to be preferred to Mr. Thomas Nicolson and the said Mr. Thomas excluded from all Commonty because Babirny stands Infeft in the Lands of Babirny which infeftment bears with common Pasturage in the Muir of Bighty and Mr. Thomas had no express Infeftment therein It was answered for Mr. Thomas that the alleadgence is not Relevant to exclude him because he his Predecessors and Authors are and have been Infeft in his Lands cum communi pastura and by vertue of the saids Infeftments in peaceable Possession Immemorially or by the space of 40 Years which was sufficient to establish the Right of Communitie with Balbirnie notwithstanding his Infeftment bears express It was answered for Balbirnie that not only was his Infeftment more express but Mr. Thomas Lands and his were holden of divers Superiours viz. Balbirnie of the KING and Mr. Thomas were Kirk-lands and albeit the Muire lyes contigue to Mr. Thomas Lands yet it is not of the same Paroch The Lords repelled the Reasons of Preference for Balbirnie in respect of the Answer It was further alleadged for Balbirnie that the Alleadgeances and Answers for Mr. Thomas Nicolson ought to be repelled because he offers him to prove that Nicolson was interrupted since the Year 1610. and condescended by yearly turning his Cattel off the ground and stopping him from casting Peits and therefore he must say 40 Years Possession by vertue of an Infeftment preceeding that Interruption It was answered for Nicolson non relevat unlesse either a Legal Interruption by Lawborres or Summons or at least a compleat and full Interruptio facti by debarring him on whole year from any deed of Community but for turning off his Goods which were presently put on again and he enjoying all his Profit such were Attempts and Incompleat Interruptions whereof he needed take no notice thereof seing he continued his Possession otherwayes there would be great inconveniences by such Interruptions which would be noticed by the Leidges and yet would cut off the Probation of the old Possession before the same The Lords found that whatsoever the Interruption 40 Years or immemoria possessione before the Interruption behoved to be proven for they thought that what Servituds were introduced only by Possession by the patience and presumed will of the other Partie being either Proprietar or having right of Communitie any Interruption was sufficient to show that the other
no Intimation being Contracted by and so known to Ker himself and therefore found Ogilbies Discharge ineffectual Town of Edinburgh contra Lord Ley and William Veatch July 8. 1664. IN a Double Poynding raised by the Town of Edinburgh against my Lord Ley on the one part and William Veitch upon the other The Ground whereof was this The Town of Edinburgh being Debitor to umquhil Dowglas of Mortoun in a Sum of Money his Son Confirmed himself Executor to his Father and Confirmed this Sum which was Arrested in the Towns hands by William Veatch first and thereafter by my Lord Ley. It was alleadged for William Veatch that he ought to be preferred having used the first Diligence by Arresting several years before my Lord Ley and having obtained Decreet against the Town before the Commissars but before it was Extracted my Lord Ley obtained Advocation It was alleadged for my Lord Ley that he ought to be preferred because the sum Arrested being due to umquhil Dowglas of Mortoun There was never a Decreet obtained at the Instance of this Executor establishing it in his Person and therefore this Competition being betwixt William Veatch who was only the Executors proper Creditor and not the Defuncts Creditor The Defuncts Money ought to be applyed First to pay the Defuncts Debt before the Executors Debt albeit the Executors own Creditor had done the first Diligence The Lords found that the Lord Ley as being Creditor to the Defunct ought first to be preferred seing now he appears before the Debt was Established in the Person of the Executor Nisbit contra Lesly Eodem die JOhn Nisbit as Assigney Constitute by Major Drummond Charges Lachlan Lesly to pay four Dollars for ilk Souldier of sixty conform to a Contract betwixt Major Drummond and Lodovick Lesly for whom Lachlan was Cautioner Lachlan Suspends on this Reason that the Charge is to the behove of Francis Arneil who was Conjunct Cautioner and bound for mutual Relief and therefore he can ask no more then his share of what he truely payed in Composition The Charger answered that he nor Francis Arneil were not Charging on the Clause of Relief but on the principal Contract as Assigney And though he had gotten Assignation thereto gratis he might crave the same except his own part Which the Lords found Relevant Heugh Kennedy contra George Hutchison Eodem die HEugh Kennedy as Assigney by Sir Mark Ker to a Bill of Exchange which was drawn by George Hutchison upon William Schaw at London payable to Sir Mark for like value received from him did obtain Decreet against George Hutchison and one Schaw as Intrometters with the Goods of William Schaw both for the Bill it self and for the Exchange and Re-exchange the Bill being Protested for not payment This Decreet being Suspended it was alleadged that there could be no Exchange or Re-exchange nor any thing payed for the Bill because the Bill was not lawfully protested but being accepted by Schaw at London he shortly after dyed and it was protested at his house where he dyed before none of his Relations having neither Wife nor Children The Charger answered that he took Instruments on the Defense and alleadged that he needed not to prove the passive Title Secondly That he had done all that was requisit having protested at the Dwelling-house where Schaw resided The Lords found that in this Case that Death Interveening which was an Accident there could be no Exchange nor Re-exchange because this was no voluntar Failzâ—e nor fault But found that the Charger as Assigney might either take himself for the single value against the Person drawer of the Bill or to his Successors on whom it was drawn Earl of Airly contra Iohn Mcintosh Eodem die THe Earl of Airly pursues Iohn Mcintosh for Contravention and Lybels these Deeds that the Defenders Herds had been found Pasturing several times far within his Ground for a considerable time which Ground was without all Controversie the Pursuers The Lords Sustained the Lybel it being always proven that the Herd herded by his Masters Command or Ratihabition and referred to themselves at their conclusion of the Cause to consider whether they would sustain the several times of hirding as several Deeds toties quoties or if only as one Deed made up of all and how far the witnesses should be received as to command or direction of the Defender Dumbar of Hempriggs contra Frazer July 11. 1664. HEmprigs as Executor to Dumbeath having pursued the Lady Frazer Relict of Dumbeath and the Lord Frazer for his Interest for payment of Executory intrometted with by the Lady there being Litiscontestation in the Cause Dumbeath calls the Act and craves the Term to be Circumduced against the Lord Frazer who alleadged that now his Lady was dead and so his interest being jus mariti ceased It was answered Litiscontestation being made the Debt was Constitute in the Husbands Person as if he had Contracted to pay it Litiscontestation being a Judicial Contract Secondly The Lord Frazer was Decerned to give Bond to pay what his Lady should be found due Frazar answered that no Bond was yet given and that the Ordinance was only against him as he was cited which was for his Interest which is Seassed And which the Lords found Relevant and Assoilzied Grahame of Hiltoun contra the Heretors of Clackmannan Iuly 13. 1664. GRahame of Hiltoun having obtained a Decreet against the Heretors of Clackmannan for a sum of Money Imposed upon that Shire by the Commity of Estates the Heretors of the Shire have raised a Revew and alleadged that this Decreet being obtained before the Commissioners in the English time he has liberty to quarrel the Justice thereof within a year conform to the Act of Parliament and now alleadges that the saids Commissioners did unjustly repell this Defense proponed for singular Successors within the said Shire that they ought not to be lyable for any part of the said Imposition having Acquired their Rights long after the same and before any diligence was used upon the said Act of the Committee It was answered that there was no injustice there because this being a publick Burden imposed upon a Shyre by Authority of Parliament it is debiâ—um fundi and affecteth singular Successors especially seing the Act of the Committee of Estates was Ratified in the Parliament 1641. which Parliament and Committee though they be now Rescinded yet it is with expresse Reservation of Privat Rights acquired thereby such as this The Pursuer answered that every Imposition of this nature though by Authority of Parliament is not debitum fundi but doth only affect the Persons having Right the time of the Imposition whereanent the minde of the late Parliament appeareth in so far as in the Acts thereof ordaining Impositions to be uplifted during the troubles Singular Successors are excepted It was answered exceptio firmat regulam in non exceptis such an exception had not been needful if de jure singular Successors had been free It was
that the Liferent of the whole was given in satisfaction of the third and all The Pursuer answered that this could not be presumed unless it had been so exprest no more then a Terce is excluded by a provision of Liferent unless it bear in satisfaction of a Terce The Lords found the Defense Relevant that the Pursuer could not both have her third and the Liferent of the rest but gave her her option either of the third provisione legis or of her Liferent of the whole provisione hominis Earl of Athol contra Iohn Scot. Eodem die THe Earl of Athol having obtained Decreet against Iohn Scot before the Commissar of Dunkeld for the Teinds of the said Iohn his Lands He Suspnds and raises Reduction on this Reason that albeit the Decreet bear a Defense proponed that the Teinds in question are Mortified by the King to a Kirk and that the same was found Relevant and that the said Iohn succumbed in proving thereof yet he offers him to prove that before the Term elapsed he produced the Mortification before the Commissar and thereupon took Instruments which is produced Which the Lords found Relevant Mr. George Norvel Advocat contra Margaret Sunter Eodem die MR. George Norvel pursuing for Mails and Duties upon an Appryzing Compearance is made for Margaret Sunter who alleadged absolvitor because she was Infeft in Liferent before Mr. Georges Right which being found relevant for instructing thereof she produced her Seasine Which the Lords found not to instruct without an Adminicle and therefore sustained the Decreet The said Margaret raised Reduction of this Decreet on this Reason that now she produced an Adminicle viz. her Contract of Marriage 2ly That the Decreet is null because the quantities are not proven The Charger answered to the first that the Lords having found the Exception not proven the Pursuer could not be admitted in the second instance against a Decreet in foro upon production of that which she should have produced at first As to the second he needed not prove the quantities seing her exception was total without denying the quantities The Lords found the Decreet valide but ordained some of their number to deal with Mr. George to show favour to the poor woman Doctor Ramsay contra Mr. William Hogg and Alexander Seton December 22. 1664. THese three Parties having appryzed the same Lands the first Appryzer being Infeft the second not being and the third being Infeft The first Appryzer declared he would not insist for the Mails and Duties of the whole but only possessed a part The question came whether the second Apprizer not having Charged should be preferred to the third who was Infeft It was alleadged for the second Appryzer that he needed not be Infeft because the first Appryzer being Infeft in all he had the only jus proprietatis and there was nothing remaining but jus reversionis which the Appryzing alone carryed and as the second Appryzer might redeem the first as having the right of his Reversion so he might force him either to possess the whole whereby his Appryzing might be satisfied or give warrant to the second to Possess the remainder so likewise he might use Redemption It was alleadged for the third Appryzer that if the question were of the Redemption of the Land the second had good Right but the question being for the Mails and Duties a right of Reversion could never carry these without a Seasine The Lords considering the Point in Law and the great disadvantage the Leiges should sustain if all Appryzers were necessitat to take Infeftment They prefered the second Appryzer Cornelius Inglis contra Mr. Rodger Hog Eodem die MR. Cornelius Inglis being Infest upon an Appryzing pursues a Removing compearance is made for Mr. Rodger Hog who alleadged that he is also Infeft and had charged the Superiour though after the first Appryzer and had possessed seven years by lifting the Mails and Duties and therefore craved the benefit of a Possessorie Judgement The Lords having considered the Case amongst themselves whether an Appryzing and Charge without Infeftment could give the benefit of a Possessorie Iudgement They were equally divided in their Votes and the President resolved before he gave his Vote to settle the Parties contra Edmistoun of Carden Ianuary 6. 1665. EDmistoun of Carden being pursued by a Creditor of his Fathers as Lucrative Successor to his Father by accepting of a Disposition of his Fathers Lands after contracting of the Pursuers Debt alleadged absolvitor because being pursued beforeby another Creditor of his Fathers he did then alleadge that his Disposition was not Lucrative but for a Cause onerous equivalent to the worth of the Land which he proved by instructing the Rental and Rate of the Land at the time of the Disposition by Witnesses and the Sums undertaken for it by Writ whereupon he was Assoilzyed and can never be again conveened upon that ground nam obest exceptio rei judicatae for if he had been condemned as Lucrative Successorâ— upon the other Creditors Probation It would now have proven against him and therefore his beng Assoilzied must be profitable to him against others unless Collusion were alleadged and Instructed The Pursuer answered that this absolvitor was res inter alios acta and albeit a Condemature would have been effectual against the Defender non sequitur that an absolvitor should also be effectuall for him because he was called to that Condemnature but this Creditor was not at all called to the absolvitor 2. Even in a Condemnature if the Defender had omitted any thing that he might have alleadged in the one case competent and omitted would not hinder him to propone the same against another Creditor Therefore the Defender can only repeit the grounds of that absolvitor which if he do the Pursuer will alleadge That whereas in the absolvitor the Defender was admitted to prove the Rental The Pursuer omitted to crave the benefit of Probation which he would have gotten and this Pursuer offers him to prove that whereas the Rental was proven to but 18. Chalders of Victual the true Rental was worth 30. Chalder 3dly A part of the onerous Cause was the Portion of the Defuncts Children which would not Prejudge the Pursuer being an anterior Creditorâ— The Lords found that the absolvitor could not prejudge this Pursuer as to these points omitted and that it could not have effect inter alios except it had been in re antiqua where the Witness had died that in that case the Testimonies out of the former Process might be repeited but as to the Rental the Lords would not give the Pursuer the sole Probationâ— being so lubrick a point as not only what it payed but what the Lands were worth and it might have payed and ordained Witnesses to be examined hinc inde and found that the Bairns Portions not being payed bona fide before the intenting of this Cause could not prejudge the Creditor but ordained the Defender to Suspend on double
Sandilands the Debitor and that the filling up of Geddes Name being but an Assignation did necessarly require to accomplish it to Denude the Cedent an Intimation for seing express Assignations do necessarly require Intimation to prefer them to arrestments much more ought indirect Assignations which are suspect of Fraud and by which a Debitor may keep all his Estate in the Cloud that none of the Creditors can reach the same by arrestment or otherwise And it being answered that the Bond being delivered blank there was no present Creditor but a power granted to the Receiver of the Bond to make Creditor whom he pleased at least there was no certain Creditor so that Samuel Veatch was never Creditor but had only the power to make the Creditor and so needed not to be Denuded nor was there any Law or custom requiring intimation of the Names filled up in blank Bonds and if any such thing were done upon the accompt of Expediency it ought only to be in time coming The Lords adhered to their former Interlocutor and found Veatch to have been the true Creditor and the filling up of the other Name to be a Transmission equivalent to an Assignation and required Intimation as well for Cases past as to come for they thought that if Veatch before the filling of the Bond had been Rebel it would have fallen within his Escheat Edward Edgar contra Colvills Decemb. 2. 1665. EDward Edgar pursues Colvil Success or Lucrative to his Father Mr. Alexander Colvil in so far as he accepted an Assignation of an Heretable Bond unto which Bond he would have succeeded as Heir It was answered that this passive Title was never extended to Bonds of Provision granted by a Father to his eldest Son and if in security and satisfaction of such a Bond of Provision an Assignation of a Debt due to the Father and his Heirs were granted could not infer an universal Title to make the Accepter lyable to his Predecessors whole Debt so neither can an Assignation to a Bond which is no more in effect and such odious passive Titles are not to be extended but the Pursuer may Reduce upon the Act of Parliament 1621. or at the farthest may crave by this Process the simple avail of what the Defender hath intrometted with by vertue of the Assignation The Lords found the condescendence Relevant as being preceptio haereditatis and as an Assignation to a Tack or a small Annualrent hath been found sufficient so there is like or more Reason for Assignations to heretable Bonds which may be more easily conveyed away from Creditors but they found it not alike as to Bonds of Provision whereby the Father became Debitor and in satisfaction and security whereof he might Assign and would only import single payment but not an universal passive Title Hugh Mcculloh contra Mr. Iohn Craig Eodem die HVgh Mcculloh having Right to an Apprizing of an Heretable Bond of 2000. merks due by Umquhil Mr Robert Craig to Patrick Wood pursues Mr. Iohn Craig as Heir by progress for payment thereof and produces a new Extract of the Appryzing by the Clerk of the Appryzing together with the said Appryzing but so spoiled that neither the Subscription of the Messenger nor Clerk could be known The Defender alleadged no Process till the Principal Appryzing by the Messenger were produced because it being in effect the Executions of the Messenger to whom more was trusted then to the Clerk The Extract by the Clerk without the Messenger was not sufficient It was answered that Appryzings of old were all direct to the Sheriffs of the Shire and were in effect Judicial Process wherein Parties were Cited Called and Decerned and now the Messenger being Constitute Sheriff in that part by the Letters of Appryzing he may choise his own Clerk and the Extract of that Clerk is sufficient as of all other Clerks and albeit for more security both Clerk and Messenger Subscribe yet it hath not been determined how far the Messengers Subscription is necessar And the Decreet of Appryzing is not the Executions of the Appryzing which are distinct therefrom and Instructions thereof The Lords thought that the new Extract behoved either to be astructed with the Letters and Executions and other Adminicles or that they would not sustain it alone But the question was whether it should be astructed hoc ordine or by a proving of the Tenor in a several Process which was carried by the plurality Thomson contra Henderson Decem. 4. 1665. THomson having granted a Bond to his Brother of a sum of Money the same was assigned to Henderson who thereupon Charged The Debitor suspends and produces a Discharge by the Cedent of the same Date and Witnesses with the Bond and alleadged that the Debt being Discharged before the Assignation excluded the Assigney It was answered That the Discharge was granted most fraudulently so that the fraud betwixt the two Brethren is manifest to have been contrived to deceive any Person should Contract with the Creditor whom they saw to have a Bond of a solvendo Person in his handâ— and so might be induced to lend him Money or Contract with him in Marriage or otherwise and the Charger having upon that accompt lent him Money and taken Assignation cannot be excluded by this Contrivance which was done pessimo dolo It was answered First That dolus was not competent by way of Reply 2ly That the Assigney took the Assignation on his own Peril and he should have asked at the Debitor before he took it The Lords though the matter was of small Importance were willing to take the matter of fraud to consideration by way of Reply and therefore ordained the Suspender to condescend upon some reasonable Cause of the granting of the Bond and taking back a Discharge thereof at the same time Beg contra Beg. Decem. 5. 1665. BEg having Disponed some Land to his Son Redeemable on a Rose-Noble and having married a second Wife he Disponed the same to her in Liferent and assigned her to the Reversion The Father having used an Order pursues Declarator The Son alleadges absolvitor because he was assigned to an Appryzing Which Appryzing carried the Right of the Reversion of that Wodset and thereby his Father was Denuded of the Reversion and could not redeem the Wodset till he Redeemed the Appryzing It was answered that the Father was not simply Denuded during the Legal During which time the Appryzing was but like a Right granted in Security which Denuded not the Fiar as if the Son for Security of a Sum had been assigned to the Reversion the Father was not Denuded but might use the Order by which the Security was not worse but better the same holds in this Case and therefore it is that he against whom an Appryzing is led may Redeem the first Appryzing albeit the second Appryzer has appryzed the Reversion otherwise no man could redeem an Appryzing unless he redeemed all his appryzings at once which have different legals and
Trade in the River of Clyde without any such Burden whereof no mention is made in the foresaid Contract and being charged for in Anno 1611. there was not so much as an alleadgence of any Possession of Dumbartons of these Dues at that time and the Entry decerned to be free at either Town and therefore they alleadged that their Priviledge of Trading as a free Burgh ought to be declared and they assoilzied It was answered for the Town of Dumbarton that they had good Right to these Duties by His Majesties several Infeftments granted to them for the King having power to impose petty Customs not only in Ports built and preserved by Industry but in Stations and Rivers Creiks and Bays as is the Custom of all Kings and Princes such are the Customes upon the Rivers of Rhyne Garonnie Thaimes and others to all Ships that anchor there or pass that way and whereof there are severals in Scotland as the Tunnage due to Edinburgh of all the Ships breaking bulk at Leith and the petty Customs of Alloway Cockenie and other places 2ly Albeit the Kings grant were not sufficient alone yet being cled with immemorial or 40. years Possession instructed by Witnesses and the Books of Entry it is more then sufficient It was answered for Glasgow to the first That petty Duties imposed for Ports having a mutual Cause may be appointed at any time by Kings and Princes it being free to these who are burdened therewith to come in to that Port or not they also appoint petty Customs to be payed to any City for Goods Imported and sold there in consideration of the upholding of their Harbours and Mercats as the Tunage of the Harbour of Leith or anchorage at any Shore where anchorage is casten upon the Land or any Goods laid out upon the Land or where Imposition for anchorage or other Dues in a River or Station hath been approven by long Custom and acquiescence but where Burghs Royal have not only by their priviledge of Trading but by immemorial Possession prescribed a liberty of making use of Stations without burding no Right granted or Impetrat by any Party in prejudice thereof if it be quarrelled before Prescription can take away the liberty of Trading Nor is the Kings Gift any way to be understood but periculo petentis and Dumbartons second Charter did expresly bear that these petty Customs were due and accustomed before so that the Kings express meaning is not to Gift them de nova or to impose a servitude in their favours upon a far more eminent City then themselves And as to the Point of Possession nothing is proven thereanent till the year 1616. and then it is neither universal seing more Entered at Glasgow then at Dumbarton nor is it peaceable nor voluntar nor is it continual but interrupted and albeit it were uninterrupted yet it is but by single Persons which cannot infer a Servitude upon the Burgh and if the Kings Gift be periculo petentis and be surrepticiously impetrat upon a false Narrative no Possession can validat it as no Possession of it self without a Title could infer such a Servitude The Lords having considered the Depositions of the Witnesses Books of Entry and the hail Writs produced they found that the alleadgence against Dumbartons Declarator as founded upon their Charters without Relation to Possession was not Relevant and that the first Charter could not extend to these particulars not being exprest unless it had appeared that they had been in immemorial Possession before the second Charter and the interruption by the Suspension raised by Glasgow and the Lords Interlocutor thereuponâ— in Anno 1611. for albeit Immemorial or 40. years Possession immediatly preceeding might have presumed Possession continually before since the first Charter yet they found that Interruption or Suspending that particular in question and no alleadging of Possession by Dumbarton then but on the contrair an Interlocutor as to the liberty of Entry at Glasgow takes off that Prescription And likewise they found that there was nothing proven as to 40. years Possession save only 13. sh. 4. d. for the Anchorage of each Ship and 8. d. for the use of Dumbartons Measures of Salt for each Boll and seing that Possession was also proven to be Interrupted in that several Ships of Glasgow Resisted and came away free and that they had several Salt Measures of their own there Therefore they found the Charter not validat by 40. years Possession uninterrupted and Assoilzie from Dumbartons Declarator and Declared upon Glasgows Declarator of Liberty Earl of Panmuire contra Parochiners Feb. 7. 1666. THe Earl of Panmuire having Right to the Abbacy of Aberbrothick pursues for a part of the Teinds thereof It was alleadged absolvitor because they had possest their Land 40. years free of Teind to any body and by the general Act of Prescription all Right prescribes not pursued within 40. years and so doth the Right of this Teind It is answered that the Right of Teind is founded on Law and not upon any particular or privat Right and therefore albeit in the case of Competition of private Parties pretending Right to Teinds One Right may be excluded by another yet the Teinds themselves must always be due except where the Lands are decimis inclusis and did belong to priviledged Church-men of old such as the Cistertian Order or Templars Manse or Gleibs The Lords Repelled the Defense in respect of the Answer for they thought albeit the bygones of the Teind preceeding the 40. years might prescribe yet the Right of Teind could not more then Customs could prescribe if they were neglected to be Exacted for fourty years or a Feu-duty Ker contra Hunter and Tennents of Cambo Feb. 8. 1666. THe Tennents of Cambo raise a Double-poinding against Ker and Hunter both being Infeft in Annualrents base where the last base Infeftment within a month of the former being cled with Possession by a Decreet of poynding the Ground a year after both and no Diligence on the first The Lords preferred the last Infeftment as first cled with Possession It was further alleadged that this Annualrenter had accepted a part of the Land in satisfaction of his Annualrent It was answered that there was Write there required viz. a Renunciation of the rest and till that was done est locus penitentiae The Lords considering the Case found that if the Promise were only to restrict the Annualrent to a part of the Land burdened therewith it was pactum liberatorium and there was not locus penitentiae but if it was a Promise to accept other Lands or the Property of a part of the Lands burdened there was locus penitentiae till the mutual Rights were subscribed whereby the one Party disponed the Property and the other the Annualrent The Heretors of Johns Miln contra The Feuars Feb. 9. 1666. THere being an old Thirlage of a Paroch which was a part of the Barony of Dumfermling to Iohns Miln the Feu of the Miln being
that an Annualrent hath not the benefit of a possessory Judgement against a prior Annualrent The Laird of Glencorsse younger contra his Brethren and Sisters Ianuary 10. 1668. THe Laird of Glencorsse having Married his eldest Son and having Disponed to him his whole Estate with Warrandice after the Disposition he did Deliver certain Bonds of Provision in favours of his other Children unto these Children whereupon they Appryze the Lands Disponed to his Son in this Contract there was a Liferent reserved to the Father and nine thousand Merks of Tocher payed to the Father The Son pursues a Reduction of the Bairns Infeftment and Bonds in so far as might be prejudicial to the Disposition granted to him upon this Reason that the Bonds were no delivered Evidents before his Disposition It was answered that they were valide though not Delivered because the Fathers Custody was the Childrens Custody especially they being in his Family both at the time of the Subscribing of the Bonds and of the making of this Disposition and it was â—ever contraverted but that Bonds granted by a Father to his Children though never Delivered during his Life but found amongst his Writs after his Death were valide both to affect his Heirs and Executors The Pursuer answered that his Reason of Reduction stands yet relevant notwithstanding the answer because albeit it be true that Bonds Dispositions and Provisions in favours of Children are valide when they are Delivered by the Parents in their Life or if they have remained uncancelled in their Hands till their Death yet till Delivery or Death they are still pendent Ambulatory Rights and may always be recalled at the pleasure of the Granter and any Deed done by him expresly recalling them or clearly inferring his mind to recall them doth annul them before Delivery ita est the Pursuers Disposition bearing expresse Warrandice against all Deeds done or to be done by the Father granter of these Bonds doth evidently declare his mind that his purpose was not that these Bonds should affect these Lands otherwise he would either reserve the Bonds or a power to burden the Lands and if this were Sustained no Contract of Marriage Disponing the Fee to a Son could be secure it being easie to grant such Bonds and to keep them up above the Sons Head and therewith to affect the Fee yea it would be sufficient against any Stranger unlesse it were for an Onerous Cause 2kly There is not only a Revocation but these Provisions were no Debt of the Fathers prior to the Sons Disposition or Delivery for albeit the date be prior yet the time of their becoming a Debt is only Death or Delivery and therefore all Debt contracted or Deeds done by the Father before his Death or Delivery of the Bonds are prior as to the Obligation thereof to the Bonds so that the Sons Disposition is truly prior as to its Obligations to these Bonds The Defender answered to the first that albeit such Bonds be Revocable before Delivery yet here there is no expresse Revocation but only presumption inserred from the Fathers giving a posterior Disposition which is no sufficient ground either â—rom the Disposition or the Warrandice for the Fathers mind might have been that he would endeavour out of his Liâ—erent or Moveables to Portion his Children and so would not absolutely Burden the Fee but yet in case he should Die or not be able to do it he would not Revock the Bonds even as to that Right which is much rather to be presumed as being much more rational and probable seing there is not any Provision or power of Provision reserved in the Contract neither is there any competent way alleadged for providing of three Children but if this Sole presumption be sufficient though a Father should Dispone his whole Estate without any Reservation of Children or to be so inconsiderat as not to except his Aliment all prior Provisions for his Life-rent undelivered should cease and become ineffectual contrair to that Natural obligation of Parents to provide their Children against which no presumption can be prevalent As to the other ground Provisions though not Delivered can be in no worse case then Bonds delivered with a Condition that the Father might recall the same which would be valid from their Date if they were never actually recalled and so must Bonds of Provision be at least as to gratuitous Deeds after their Date though before Delivery as if a Father should grant Bonds of Provision to many Children at once and should Deliver some of them before the rest if he had not Means sufficient to pay all the Bonds first Delivered could not be thought to exhaust his whole Means and exclude the other Bonds of Provision but all would come in pari passu according to their Dates except their Diligence alter the Case The Lords notwithstanding of what was alleadged found the Reason of Reduction relevant and that the undelivered Bonds of Provision though prior in Date yet posterior in Delivery could not affect the Fee interveening Here there was much alleadged upon the Onerosity of the Pursuers Disposition which came not to be considered in the Decision Grant contra Grant Ianuary 11. 1668. WIlliam Grant of Markinsh pursues a Tutor Compt against Iohn Grant of Ballandallock his Tutor in which these points being reported to the Lords whether the Tutor were lyable for the value of Services of the Pupils Tennents by Harrowing Plowing and Shearing c. And for which the Tutor received no Money but the Services in kind The Lords found the Tutor not Comptable therefore because he could not force the Tennents to pay any price for the same And as to that point the Tutor being super-expended the Pupil might be Decerned upon the Pupils own Process against the Tutor without a distinct Process at the Tutor instance The Lords found he might Parkman contra Captain Allan Ianuary 14. 1668. CAptain Allan having obtained a Decreet against Parkman a Swede Adjudging his Ship Pryze upon these Grounds that she was Sailed with three persons of her Company being Hollanders and Danes being then the Kings Enemies and because she had carried of the Enemies Goods from Bergen in Norway to Amsterdam from whence having gone to France with Ballast and being Loaden there with Salt she did also carry in to France six Barrels of Tar which was sold in France as appears by an Accompt betwixt the â—kipper and his Factor in France bearing so much to be payed of the Kings and Towns Custom of the Tar which necessarly Imports that it was sold there likewise she carried in Stock-fish being Commeatus and Counterband Goods so that having sold several Lasts of Tar in Holland and these Barrals and Stock-fish in France which are clearly Counterband Goods and being taken in her return from France having in her the product of these Counterband Goods whereupon she was jâ—â—tly declared Prize conform to the Lord Admirals Commission ordaining Ships of Allies to be taken having
time Duncan Campbel contra the Laird of Glenorchy Iuly 25. 1668. DVncan Campbel pursues the Laird of Glenorchy for Ejecting him from certain Lands and especially that his Brother by his Direction did violently cast out the Pursuers Children and Servants out of a part of the Land Laboured by himself and perswaded and enticed his Tennents to receive Tacks from and pay the Mails and Duties to him and therefore craves Re-possession and Double Mail as the violent Profits of the whole Lands during the Defenders Possession The Defender alleadged Absolvitor because he had obtained Improbation against the Pursuer of all his Rights of these Lands and others and likewise Decreet of Removing The Pursuer answered that the Defense ought to be Repelled because the Improbation was only by a Certification when he was Prisoner in Irland and the Defender by Articles of Agreement produced had acknowledged the Pursuers Right and obliged himself to Infest him in the Lands in question 2dly Though the Pursuer had but Possession without any Right he might not be Ejected but by a Precept of Ejection from a Judge which is not alleadged The Defender answered that these Articles of Agreement were never perfected nor extended and could only import a Personal Action against the Defender for extention or implement wherein when the Pursuer insists he will get this answer that he can have no benefit of the Articles being mutual until he perform his part thereof which is not done The Lords Repelled the Defence and Duply and Sustained the Ejection The Defender alleadged further that that Member of the Libel craving violent profits for that part of the Land Possest by Tennents because by the Defenders perswasion they became his Tennents is not Relevant because Ejection is only competent to the natural Possess or upon violence and perswasion is no violence The Pursuer answered that the prevailing with the Tennents was consequent to the casting out of the Defender out of his own House and natural Possession and was as great a fault as Intrusion and equivalent thereto The Defender answered that the Law has allowed violent profits only in Ejection or Intrusion which can be drawn to no other Case though it were as great or an greater fault The Lords sustained the Defence and found violent profits only competent for that part that the Pursuer Possest naturally but if the whole Lands had been an united Tenement or Labouring that the Pursuer had been Ejected out of the principal messuage of the Barony and the Ejecter had thereby gotten Possession of the whole it is like the Lords would have sustained Ejection for the whole but this was not Pleaded Lord Rentoun contra Lambertoun Iuly 28. 1668. THis day the Lord Rentouns Processe against Lambertoun mentioned the 21. Instant was Advised by the Probation it appeared that the Corns in the Girnels of Haymouth and the Cattel in the Mains of Rentoun and Horses were taken away by Lambertoun with a Troop or Troopers and that the Corns were carried to Dunss the Army being thereabout at that time whereupon the question arose whether or not Lambertoun were lyable for these which by the Probation did not appear to be applyed to his use but to the use of the Army The Lords Assoilzied him therefrom as they had done in several cases formerly upon the Act of Indemnity whereby whatsoever was acted in the Troubles by Warrand of any Authority in Being was totally discharged and the Lords did thereupon find that the Actors were not obliged to produce or show a Warrand but that it was enough the Deeds were done manâ— militari unlesse the contrair were proven by the Actors own Oath that what was medled with was not employed to entertainment of Souldiers or any other publick use but to their own private use Laird of Milntoun contra Lady Milntoun Iuly 30. 1668. THe Laird of Milntoun infifted in his Action of Reprobator wherein this point of the Dispute was only Discust whether Reprobators were competent unlesse they were protested for at the taking of the Witnesses Testimonies or whether it were sufficient to Protest at any time before Sentence or if there were no necessity at all and especially as to this Case It was alleadged there was no necessity of a Protestation and if it were there was a Protestation at the Re-examination of the Witnesses and also before Sentence It was answered that a Protestation was most necessar because the want of it was an acquiescence in the hability and honesty of the Witnesses and if it should not be necessar all Process this five years might come in question upon Reprobation which were of dangerous consequence and therefore as Incidents are not competent but when Protested for no more Reprobations as to the alleadged Protestation at the Examining of the Witnesses it is but subjoined to the Interrogators only Subscribed by one of the four Examinators who Subscribed the Testimonies and who does not remember of his Subscription so that it has been surreptitiously obtained from him as to the other Protestation the same was not when the Witnesses were taken but at the conclusion of the Cause It was answered that it was in competent time even at the conclusion and that Reprobators were not only not rejected but expresly allowed by the Pursuer by way of Action The Lords found this Reprobator competent in this Case but did not resolve the point generally whether they were competent when not at all Protested for as to which the Lords were of different Judgements but most seemed to require a Protestation ante rem Iudicatam yet so that if it were omitted the Lords might repone the Party to Reprobators if any emergent made the Testimonies suspect through inhability or corruption in the same manner as the Lords will repone Parties against Certifications Circumductions of the Term and being holden as Confest Sir George Mckenzie contra the Laird of Newhal Eodem die SIr George Mckenzie Advocat having Married a Daughter of Iohn Dickson of Hartrie they pursue a Proving of the Tenor of an Inventar of Harâ—ries Lands wherein he altered the former Substitution of his Children in several Bonds and paricularly of a Bond of 5000. Merks granted by Whitehead of Park payable to himself and after his Decease to Helen Dickson his youngest Daughter who was Married to Ballenden of Newhal and by the Inventar the Substitution was altered and the one half of the Bond appointed to pertain to Elizabeth now Spouse to Sir George Mckenzie and the other to Helen and Michael to prove that the samine was Holograph because it wanted Witnesses there was produced for Adminicles the Copy of it written by Iohn Kelloes Hand Hartries Nephew and an judicial Instrument containing the Tenor of it by way of Transumpt but there was some words of difference between the Instrument and the Copy which was Subscribed by Iohn Ramsay Hartries Good-brother and Mr. Iohn Pringle Hariries Good-son who and several others being adduced as Witnesses Deponed
as were not constitute by Writ anterior to the Defenders Bond and as to any constitute by Probation of Witnesses for proving Bargains Merchant Compts and Furnishing wherein the Probation and Decreet are both after the Bond they cannot be said to be anterior Debts because they are not constitute till Sentence and albeit the Sentence bear the Debt to have been contracted before this Bond yet that cannot make them anterior Debts because Writ cannot be taken away by Witnesses proving an anterior Debt which would be as effectual against the Writ as if the payment thereof had been proven by Witnesses and the time of Bargaining or Furnishing being a point in the Memory and not falling under the Sense no body would be secure who had Writ but that Bargains and Furniture might be proven anterior thereto The Pursuer answered that his Reason was most Relevant and the constitution of the Debt is not by the Decreet or Probation but by the Bargain and Receipt of the Goods or Furniture after which no posterior Deed of the Debitor can prejudge the Creditors Furnishers and albeit in many cases Witnesses prove not and Witnesses are not admitted to prove where Writ may and uses to be interposed yet where the Probation is competent the Debt is as well proven thereby for the time of contracting as it is by Writ neither doth that ground that Writ cannot be taken away by Witnesses any way hinder for the meaning hereof is only that the Payment or Discharge of that Writ must be proven by Writ and it were a far greater inconvenience if after Bargain and Furniture any Writ granted by the Debitor though without an Onerous Cause should prejudge these Creditors The Lords Sustained the Reason and Repelled the Defense and found Debts constitute by Witnesses to be effectual from the time of contracting and not from the time of Probation or Sentence to take away any posterior Deed of the Debitor done without a Cause Onerous The Pursuer insisted in a second Reason of Reduction that albeit these Debts were posterior to this Bond yet the samine ought to be Reduced as being a fraudulent conveyance betwixt the Father and the Son kept up and latent in some of their Hands without any thing following thereupon to make it known and publick so that the Creditors having bona fide contracted with the Father having a visible Estate were deceived and defrauded by this latent Bond if it were preferred to them 2dly This Bond bears only to be payable after the Fathers Death and so is but donatio mortis causa and but a Legacy or if it be inter vivos it is much more fraudulent and latent 3dly Bonds of Provision for Love and Favour granted to children are accompted but as their legitime still Revockable by the Father and all Debts contracted by him are preferable to them The Defender answered that there was neither Law Reason nor Custom to evacuat or exclude Bonds of Provision granted by Parents ex pietate paterna to their Children upon accompt of their Fathers posterior Debt especially if the Bonds were Delivered for there is no ground for any such thing by the Act of Parliament 1621. which relates only to Deeds done after the Debt contracted neither is there any sufficient ground of fraud that the Bonds were not made publick or known there being no obligement upon Parties to publish the same and Creditors have less means to know the Debts of other anterior Creditors then of Children having a just ground to suspect that they may be provided and to enquire after the same neither doth the delay of the Term of payment import either fraud or that the Bonds were donationes mortis causa The Lords would not Sustatin the Reasons of Reduction upon the Act of Parliament 1621. or upon the general ground that posterior Debts were preferable to all Bonds of Provision but ordained the Pursuer to condescend upon the particular ground of fraud in the Case in question The Collector-general of the Taxation contra the Director of the Chancellery Ianuary 22. 1669. THe Director of the Chancellery being Charged for the present Taxation imposed in Anno 1665. by the Convention of Estates Suspend on this Reason that he is a Member of the Colledge of Justice which by the Act of Convention are exempted It was answered that the Members of the Colledge of Justice were never further extended then to the Lords Advocates Clerks of Session and the Writters to the Signet It was answered that as the Signet depends immediatly and chiefly upon the Lords of Session and Writters thereto are of the Colledge of Justice so the Chancellery depends in the same way upon the Lords who issue Orders thereto from time to time to give out Precepts direct to Superiours or to Bailliffs Sheriffs for Infefting of Supplicants and therefore the Director of the Chancellary being Writer in that Office must enjoy that Priviledge as well as the Writers to the Signet for albeit the Director gives out Precepts and Brieves of Course without the Lords Warrand so do the Writers to the Signet give out many Summons of course without Warrand The Lords found the Director of the Chancellary to be a Member of the Colledge of Justice and therefore Suspended the Letters The Collector general of the Taxations contra The Master and Servants of the Mint-house Eodem die THe Master of the Mint did also Suspend for him and his Servants on this Reason that it was their ancient Priviledge to be free of Taxations for which they produced certain Gifts by former Kings of Scotland and Decreets of the Lords It was answered that the Act of Convention gives only Exemption to the Members of the Colledge of Justice and Discharges all former Priviledges and Exemptions It was answered that Acts of the Convention must be understood salvo jure which takes place even in Acts of Parliament 2dly They produced a late Gift granted by the King in Anno 1668. Exeeming the Master and Servants of the Mint from all Taxation Imposed or to be Imposed which is past the Exchequer and Privy Seal so that the King who hath Right to the Taxation might Discharge the same to whomsoever he pleased The Lords in respect of the new Gift did Exeem the Officers of the Mint and Suspended the Letters The Daughters of umquhil Chrichtoun of Crawfoordstoun contra Brown of Inglistoun Eodem die THe Daughters of umquhil Crichtoun of Crawfoordstoun as Heirs appearand to him immediatly after his Death gave in a Supplication to the Lords desiring his Charter-Chist to be Inventared and Sequestrat Which the Lords granted But before the Commission came to the House William Lowry the Ladies Nevoy upon notice of the Order Rode Night and Day and prevented the same so that all the Writs were carried from Crawfoordstoun to Inglisstoun Thereafter the appearand Heirs raised Exhibition ad deliberandum against the Lady and others who produced three Dispositions by Crawfordstoun in favours of Brown of
Defender alleadged Absolvitor because this Bond being granted without an Onerous Cause after the Provision of the second Contract of Marriage Providing all the Goods Conquest to the Heirs of the second Marriage who were thereby their Fathers Creditors for fulfilling of that Provision no voluntar Dâ—ed done without a Cause Onerous by their Father in Favours of his Daughter of a former Marriage could prejudge them or burden the Moveables acquired in that Marriage It was answered First That the Provision being to the Heirs of the second Marriage they being Heirs could not quarrel but were obliged to fulfil their Fathers Obligation whether for a Cause Onerous or not 2dly Such Clauses of Conquest are ever understood as the Conquest is at the Acquirers Death but does not hinder him any time of his Life to Dispose or Gift at his pleasure which if he might do to any Stranger there is neither Law or Reason to exclude him to do it to his Daughter And albeit it might be interpret Fraud if nothing were left to the Daughters of the second Marriage yet where they have a special Provision and something also of the Conquest with this burden their Father could not be found thereby to Defraud them or to hinder him to use his Liberty Which the Lords found Relevant and Sustained the Bond. Buohan contra Taits February 11. 1669. IN Anno 1623. George Tait of Pirn gave a seisine propriis mâ—nibus to George Tait his eldest Son and a Bond of that same Date bearing that he had given Seisine and obliging him to Warrand the same Reserving his own Liferent Thereafter in Anno 1640. he Contracts in Marriage with Ianet Buchan and for two thousand and five hundreth Merks of Tocher obliges him to Infeft her in the same Lands of Piâ—n whâ—rein his Son was Infeft whereupon she now pursues Reduction of George Tait youngers Infeftment against his Daughters upon these Reasons First That the Seisine propriis mâ—nibus was only the assertion of a Nottar without a Warrand 2dly That the Seisine had not four Witnesses 3dly That this was a clandestine latent Right most fraudulent betwixt a Father and his appearand Heir never having been published or taken effect by any Possession and cannot prejudge this Pursuer who is a most priviledged Creditor and brought a competent Tocher with her 4thly That this being an Infeftment by a Father to his appearand Heir then in his Family it was but as the legittime of Children which is still ambulatory at their Parents Disposal and so must be affected with this posterior burden of the Fathers Marriage It was answered to the first that the Bond of the same Date with the Seisine acknowledging the same is a sufficient adminicle and is equivalent as if the Father had Subscribed the Seisine To the second there is no Law requiring â—our Witnesses to a Seisine for that Act of Parliament is only where a Party Subscribes by a Nottar but relates not to Nottars Instruments Subscribed by themselves upon warrands or adminicles without which they are not valid with 40. Witnesses and without which two Witnesses are sufficient To the third this Infeftment is no ways Fraudulent or Latent seing it is Registrat in the Register of Seisines and Reserves the Fathers Liferent whose Possession is the Sons Possession and cannot be pejudged by a Deed so long posterior thereto To the last Infeftments taken to Children by Parents being Registrat by Parents can never be Recalled The Lords Assoilziâ—d from all the Reasons of Reduction and Sustained the Defenders Seisine Pot contra Pollock February 12. 1669. UMquhile Iohn Pollock having granted a Bond of 5000. Merks to Iames Pollock his second Son of the first Marriage and he having Adjudged thereupon Pot as Assigney by his Wife to her Provision and the Creditors Debts having also Appryzed raises Reduction of Iames. Pollocks Bond and Adjudication on this Reason that the said Bond was without a Cause Onerous given by a Father to a Son as is clear by the Sons Oath taken thereupon and therefore a posterior Debt Lent by Creditors bona fide to the Father is in Law preferable thereto 2dly This Bond to a Son can be but de natura legittimae having no Cause Onerous as if it had born for his Portion Natural and Bairns part In which Case it is Revockable by the Father and the Fathers Creditors though posterior are preferable thereto 3dly This Bond is Reduceable super capite doli as being a contrivance betwixt a Father and a Son to insnare Creditors to Lend to the Father who then drove a great Trade which must be inferred from these circumstances First The Son was foriâ— familiat and sufficiently provided before 2dly The Bond bears no Annualrent and the Term of payment is after the Fathers Death and remained ever latent betwixt the Parties without any thing following thereupon and these Debts were all Contracted within a very little after this Bond which was only a year before the Defuncts Death The Defender answered that the Reasons are no ways Relevant for there is neither Law nor Reason to hinder any person to give Bonds or Gifts freely there being no Impediment the time of the granting neither hath the Law any regard to posterior Creditors but in personal Debts whether for Causes Onerous or not the first Diligence was ever preferable nor was it ever heard that a posterior Onerous Obligation did Reduce or was preferred to a prior gratuitous obligation upon that ground that the prior was gratuitous And to the second Albeit this Bond were in satisfaction of a Portion Natural as it is not yet being Delivered to the Son who iâ— forisfamiliâ—t he can be in no other case then any other person to whom a bond were granted without an Onerous Cause As to the third Dolus non presumâ—tur and all machinations being only animi are only probable scripto vel juramento and can be inferred by no circumstances The Pursuer answered that albeit in dubio dolus aut câ—lpa non preâ—umitur yet it is doubtless probable otherwise then by the Oaths of the Parties whereunto Truâ—â— is never to be given in relation to their own shame contrivance or fraud and therefore matâ—ers of fact do necesâ—arly infer and presume fraud in many cases and in none more then this where the Deed was clandestine and latent betwixt Father and Son and where the Fathers Estate was thereby rendred insuffiâ—ient to pay both his Dâ—bt and the others contracted shortly thereaâ—ter and if it were sustained that such latent Rights betwixt conjunct persons were valide in prejudice of posterior Creditors contracting bona fide and not knowing the same all Commerce behoved to cease for every man might give such Bonds to his Children and continue to Trade and to borrow Money and upon the Childrens anterior Bonds be totally excluded The Defender answered that our Law by a special Statute in Anno 1621. having determined the cases of presumptive fraud and extended
the subsequent Terms to the Debitor which they were in bona fide to do knowing no Law nor Custom to the contrare The Lords Repelled the Defense and found the Arrestment to be valide for that Terms Duty that was then running and found that the Arrestment was rather like to an Inhibition then an Apprizing which gave present payment Scot of Hartwood-mires contra November 6. 1669. SCot of Hartwood-mires gave in a Bill of Suspension of a Decreet in foroâ— which the Ordinar reported to the Lords the Reason of Suspension was that he being Conveened as Representing his Father to pay the Debt in question for which his Father was Cautioner he offered to prove payment denying alwise the passive Titles and having proven the most part payed by Discharges granted to the Principal Debitor he was Decerned for the rest and now offers to Renunce to be Heir to his Father conform to his Protestation in the first Act. It was answered that the Defense of payment does never suffer the proponer to deny the passive Titles or put the Pursuer to a necessity to prove them by the constant custom founded upon good Reason because the proponing upon any positive Right of the Defuncts is a behaviour as Heir and in the Act of â—iâ—is contestation a Term is only assigned to the Defender to prove payment and the Protestation in effect is rejected because there is no Term therein assigned to the Pursuer to prove the passive Titles in case the Defender failed to prove payment neither could there be any by our Custom The Lords refused the Suspension and found that the offer to prove payment Liberated the Pursuer from proving the passive Titles Lady Towy contra Captain Barclay November 9. 1669. THe Lady Towy having pursued Improbation of a Bond of an bundreth thousand Pounds alleadged granted by the Umquhile Laird of Towy to Captain Barclay and of a Disposition of the Estate of Towy alleadged made by the Tutor of Towy the day after the Laird of Towy died at the Barns of Towy which Tutor fell Heir-male to the Laird who had only one Daughter the foresaid Bond and Disposition being produced Judicially before by Captain Barclay though not in this Process he refused now to produce the same but suffered Certification to be granted against it The question having arisen whether any further Process could be in the Improbation in respect that the principal Writs were not produced but Copies bearing the Tenor Date and Witnesâ—es insert The Lords the last Session did Examine Captain Barclay and Steel one of the Witnesses insert and certain others and Steel confessing the Forgery and Captain Barclay denying the same after he was Confronted with Steel and denying the having of the principal Writs the Lords sent Captain Barclay and Steel to the Tolbooth of Edinburgh to be keeped there till the Event of the Plea or further Order and did thereafter permit Steel to come out upon sufficient Caution for a great Sum and the other Witnesses inserted being Sumonned and not Compearing The Lords granted Caption against them and gave Commission to certain Persons to search for them and now Iohn Rosse the other VVitness in the Disposition and Alexander Ferguson who filled up the Date and Witnesses both in the Disposition and Bond and Subscribed Witness to the Bond and insert himself as VVitness in the Disposition but Subscribed not as VVitness in the Disposition being brought to the Bar. It was alleadged for Captain Barclay that the saids VVitnesses could not be Examined First Because there was now no Process depending in respect that the Improbation which was only civilly intented was determined by the Decreet of Certification which now is Extracted and albeit the Lords did before Examine Captain Barclay and Steel yet the Process was then depending and the Certification not Extracted 2dly It was alleadged that Rosse and Fergusson were not habile VVitnesses having appeared most partial upon the Pursuers part having stayed a long time with her in her House Et prodiderunt Testimonia in so far as not only they had declared what they would depone but that they had set the samine under their hands and that by their said Subscription they acknowledged themselves accessory to the Forgery and so by their confession they are socij criminis and being culpable of so great a Crime are infamous and their Testimonies can make no Faith against any but themselves It was answered for the Pursuer that Improbations even civilly intented are not totally determined by the Certification which is of its own nature but an Interlocutor Sentence and if the Pursuer should notwithstanding thereof find out and produce the Principal Writ he might proceed to the Improving thereof it being very well consistent that it might be holden and repute false by the Certification and might also be proven to be false and though the Pursuer could not produce the Writ yet the Process is not wholly determined by the Certification but it may be justly desired that all evidences of the Forgery that were possible without production of the Writ might be taken to remain in retentis in case the Principal should after be found for there might be clandestine Assignations of the Writs made by Barclay and Intimat at the Pursuers Dwelling-house or Forged and Antedated Intimations made up so that the Certification would not be effectual against the Assigney's and though Parties should not insist the Kings Advocat who is also Pursuer of the Process might insist that the VVitnesses might be Examined for detecting of the Forgery and there could be no case more favourable then this wherein Captain Barclay had Judicially produced the VVrits and now wilfully refuses to produce the same and if Forgers shall escape and be in no more hazard but suffer Certification though they have burnt or wilfully keep up the VVrits it will be an open Door to encourage all Forgerers neither have the VVitnesses betrayed their Testimonies albeit being Examined by the Lord Fivy a Nobleman in the Countrey one of them did Subscribe who had just ground to think that it was no voluntar Deed but that the Lord Fivy might have sufficient Authority for that effect but whatever objections were against VVitnesses they are ever Received in Improbations and the Lords at Advising of the Cause do consider what their Testimonies may work at which time only it will be proper to object The Lords notwithstanding these alleadgeances Examined the VVitnesses Rosse acknowledged that he being Servant to Captain Barclay he called him up to Subscribe VVitness to a VVrit but told him not about what it was nor did not let him hear nor see what was written therein but rolled it up and presented only to him the white paper near about the end of the VVrit and desired him to Subscribe VVitness and he saying that he could not be VVitness because he saw no body Subscribe the Captain answered that that was nothing to him and that he should stand betwixt
would have been before the Bailzies when the Cause was Advocat at which time Cornelius Term of payment was not come The Lords found that the unwarrantable delay by the Advocation should not prejudge Charters and that the case should be considered as it was the time that the Advocation was raised and preferred Charles Charters upon his posterior Arrestment in respect the Term of payment of his Debt was come to the prior Arrestment laid on upon a Debt the Term of payment whereof was not come whereupon Citation was used before the Term came The Advocats having withdrawn from the House upon the Oath prescribed by the Regulation nothing was Called until the midle of December Murray of Achtertire contra Gray December 16. 1670. MVrray of Achtertire having pursued a Contravention against Gray upon several Deeds whereof one was that Achtertire having procured liberty from a Neighbour Heretor to make a Cast upon that Heretors Ground wherein some little Burns were gathered to a Head and thence were conveyed through Achtertires own Ground to his Miln Lade and that Gray had broken down that Cast whereby the Burns were divertedâ— Gray having compeared and proponed nothing the Libel was found Relevant and admitted to Achtertires Probation who by several Witnesses proved that the Defender had broken down that Cast of whom some Deponed simply but two of them Deponed thus that Gray had broken down the new Cast but that the Burns gathered therein in the time of Floods did water Grayâ—s own Lands and that by the new Cast they were keeped in and could not water the same whence it arose to the Lords consideration whether that Deed of Contravention was sufficiently proven or whether the Testimonies of the Witnesses being qualified that the Defender had done the Deed but in continuation of his former Possession of the watering of the Burns whether respect ought to be had to that qualification some thought not because the Fact as it was Libelled was found Relevant and proven and the qualification ought to have been proponed by way of Defense but it was found that the Testimonies being so qualified did not sufficiently prove to infer a Contravention for if the Contravention had been proven by Writ or Oath such a quality either in the Writ or Oath would hinder the same to prove sufficiently the Contravention But because the Testimonies were not to be considered by the Parties the Lords ordained the Sentence to expresse the foresaid Reason of it that the Pursuer before Extract might alleadge any thing thereanent he thought fit Nicol Langtoun contra Robert Scot Decem. 17. 1670. JOhn Graham of Gillesby having Set a Track of his Lands of Graystoneflat to Nicol Langtoun and being at that time at the Horn Robert Scot obtains a Gift of his Escheat and Liferent from Annandale his Superior and thereupon obtains general and special Declarator Decerning Langtoun to pay the Duties to him as Donator Langtoun Suspends and raises Reduction on this Reason that the Gift was simulat to the behove of Graham the Rebel procured by his own Means and Moyen and it being answered by Scot that he being a lawful Creditor of the Rebels might lawfully accept and make use of this Gift for his own security albeit the Rebel had procured the same and Scot the Donator having Deponed anent the simulation of the Gift did acknowledge that the Rebel had procured the Gift and that he had it blank in the Donators Name and that he did fill up Scots Name and delivered it to him The Lords found the Oath to prove the simulation of the Gift and that it having been in the Rebels own hands blank in the Donators Name it was equivalent to an Assignation from the Rebel and that Scot accepting of it so from him could not justly or bona fide make use of it even for security of a just Debt in prejudice of the Tacks-man who had before gotten his Tack from the Rebel Alison Kello contra Kinneir Ianuary 5. 1671. ALison Kello as Heir to her Mother Margaret Nisbet having pursued a Reduction of an Apprizing of the Lands of Paxtoun Led at the Instance of Mr. Samuel Hume against the said Margaret in Anno 1622. and Assigned to Mr. Alexander Kinneir in Anno 1623. upon this Reason that the said Mr. Alexander was satisfied by his Intromission within the Legal this pursuit being against Mr. Alexander Kinneirs Son who is Minor and being stopped upon his Minority quid Minor non tenetur placitare de hereditate paterna The Lords did upon the Pursuers Petition grant Commission to Examine Witnesses upon the Intromssion to remain in retentis till the Cause might be Determined in respect the Witnesses might die in the mean time which being reported the Lords remitted to an Auditor to state the Compt of the Intromission according to the Probation that the stated Accompt might remain in retentis The Defender being heard again before the Lords did alleadge that the Accompt could not be stated upon this Probation but that there being yet no Litiscontestation in the Cause neither can be through the Defenders Minority and this Probation being but before answer to remain in retentis and taken by Commission the Defender not being present at the Examination and the matter being very ancient fifty years agoe the Lords ought to give the Defender the sole or conjunct probation of this alleadgeance viz. That he offered him to prove that during the years of the Legal the Lands were Possest by several Persons by Dispositions or Tacks both under Reversion for certain Sums of Money due by the said Margaret Nisbet which Rights were granted by her and were now produced by the Defender which with the saids Rights produced is much more pregnant nor the Pursuers Probation by some inconsiderable Countrey People without any Adminicle in Writ It was answered for the Pursuer that the alleadgeance was no way Relevant being contrare to her Libel and founded super jure tertij for this Defender hath no interest in the Wodset Rights nor doth any Person appear for them or own them and if this were sustained it would afford a current evasion in all kind of Pursuits upon Intromission by offering still to prove that the Defender did not but that a third Party did Intromet and therefore the Lords have never Sustained such a Defense upon the Defenders sole Probation and in no case have allowed a conjunct probation It was answered that in a matter so old and where the sole probation of a thing of so great Moment was to be by Witnesses the Lords ex officio might Examine Witnesses for either Party and have oft so done especially the same ought to be done here where the probation is by inconsiderable Persons and so suspect and exorbitant proving â—â—nneirs Intromssion to be before he had any Right and the quantities to be much higher then the written Tack of the Lands produced The Lords found that they could not admit a Probation for the
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
intertainment and gratification to an Officer for a Guard and even though there were necessar Causes of the Prisoners coming out the Magistrate is not Judge thereof nor has any power of it but the Party ought to apply themselves to the Council or Session and obtain their Warrand which will not be granted even by them but upon instruction of a necessar Cause upon Oath of Physicians or others The Defenders answered that Incarceration was a civil effect of Law and no punishment and that it were against all humanity to put Prisoners for civil Debt in that condition that the Magistrates could not let them out for a little even for the safety of their Life in extremity of sickness which oftimes would not admit of delay till application were made to the Council or Session 2dly Whatsoever may be found just by the Lords in time coming yet the constant and universal Custom of this and all other Burghs to let Prisoners go out with a Guard when they saw convenient cause did introduce a priviledge to Burghs or put the Defenders in bona fide to Act as all their Predecessors had been accustomed to do without any question or Decision in the contrair and alleadged a late Practique in the case of the Town of Culross who suffering a Prisoner that was a poor man to go out to an Hospital where he got Bread and thence he immediatly returned to Prison and to go and see his nearest Relation that was a dying in the Town or to their Burial was not found lyable for the Debt The Lords considering the ordinary Custom of Burghs found that as to the time past they would not find them lyable for suffering Prisoners to go out with a Guard for any necessar cause and found the Defense Relevant that this Prisoner was let go out with a Guard for his health or to the Kirk on the Sabbath but found that Member of the Condescendence Relevant that he went out to the Street and Taverns without a necessar Cause though with a Guard Relevant to infer the Debt But found that in time coming they would have no regard to that unwarrantable Custome but that Magistrates of Burghs should only have power to let Prisoners come out of the Tolbooth under a Guard in the extream hazard of their Life by sickness and not without Testificats by Physicians or skilled persons upon Oath bearing the Parties condition to require the same and that without great hazard they could not suffer delay to make Supplication to the Council or Session The Lady Wolmet and Dankeith her Spouse contra Major Bigger Eodem die JEan Dowglas Lady Wolmet being by her Contract of Marriage Infeft in the half of the Lands of Wolmet did with her Husband consent to a Wodset of the whole Lands for 28000. merks wherein there is a Back-tack setting the Lands and Coal to her Husband and her the longest liver of them two for payment of the Annualrent of the Money which Wodset the said Iean in her Viduity as Tutrix renewed to the first Wodsetters Assigney and became personally obliged both for the principal sum and Back-tack-duty and took the Back-tack half to her self and half to her Son the Heir but after the first Wodset her Husband set a Tack of the whole Coal to his seven Children for twelve years they paying twelve hundreth merks yearly to the Wodsetter and two merks yearly to his Heir which Tack expired in Anno 1663. after which the said Iean Dowglas and David Cunninghame of Dankeith her Husband pursues Major Bigger as intrometter with the Coal for the half of the profite thereof conform to the Back-tack who alleadged Absolvitor because the Back-tack in so far as it exceeded the Ladies Joynture was a Donation between Man and Wife and was Revocked by the Childrens Tack and being once Revocked remained for ever Revocked because the ground of Law prohibiting Donations between Man and Wife and annulling the same nisi morte confirmentur is introduced ne mutuo amore se spolient and therefore nothing can make them effectual but the Husbands continuing in the same mind to his Death but any signification of alteration of his mind directly or indirectly though it were in his Testament or Codicil or by any Deed whereby he owns the thing Disponed as still at his Disposal is sufficient to annul the Wifes Right as if he should grant a Wodset of the same Lands though without mention of his Wifes prior Liferent given gratis stante matrimonio It would Revock the same so that though the Husband Redeemed the Wodset the Wifes Right would not Revive So here the Bairns Tack being of the whole Coal for twelve years doth wholly Revock the Back-tack as to the Wife not only during these years but for ever 2dly There is a minute of Contract betwixt the Husband his Wife and Raith of Edmonstoun clearly showing the change of his mind and restricting the Lady to her first Liferent It was answered that albeit in jure donationis or where there was a clear and liquid excess of the Right received exceeding the Right quite any Deed evidencing the Change of the Husbands Will might be sufficient to Recal it Yet that holds not here where the Lady quite a certainty for a Casuality viz. The profite of a Coal which might many wayes have been ruined and unprofitable in which case she would have nothing for her Joynture and so it was permutatio spei aut jactus retis and at the time of the Wodset was not of more value in buying and selling then the Joynture of the Lands being certain 2dly This not being a pure Donation the Husband could not Recal it till he had Restored his Wife to her first Liferent and releaved her of all Burden and Distress she had sustained by the Wodset neither had he shown his mind to Change but only in part And as to the Contract with Raith it was in Contemplation of a Marriage and was all founded on advancing Sums to Redeem the Wodset whereby the Back-tack ceased 3dly The Defender connot exclude the Pursuer unless he pay her all bygone years of her Joynture she wants from 1654 to 1667. by Arrestments and Processes upon the Back-tack and free her of the principal Sum and Annualrent and satisfie her of the damnage she has Sustained by lying out of her Liferent for all these years and sustaining a long pursuit wherein she is willing to acquiesce The Lords in respect of this offer and that the Defender did also offer to free and relieve her rested therein and did not proceed to advise the former Points in jure Bowers contra Lady Cowper Iune 16. 1671. BOwers pursues the Lady Cowper as vitious inâ—â—â—â—â—er with the Lord Cowpers Goods and Gear for payment of a Debt of his who alleadged Absolvitor because she had a Disposition from her Husband of his Moveables It was Replyed that the Disposition being between most conjunct persons without a Cause onerous was null by
as having bought the Oxen in which case Sentence was found necessary before the possessors were dispossessed Iuâ—y 7. 1671. Strachans contra Gordouns STIPENDS of Ministers affect the Teinds as a real burden and all intrometters even these who buy as Merchands buying the whole Teind of a Mans Land for a year so that they cannot pretend payment made to the Heretor bona fide seing they should know that real burden Iune 24. 1662. Vernor contra Brown Stipends quoad Intrants were found to divide in two Terms that the Intrant before Whitsondâ—y hath â—oth Terms but after Whitsonday and before Michalmass only one Term Iuly 24. 1662. Wâ—yms contra Cunninghame Stipends were not found to burden and Heretor where there is a Liferenter living Iune 24. 1663. Menzeis contra Laird of Glenâ—rchie Stipend of a Minister reponed shortly after Michalmass as having Presentation Collation and Possession before and wrongously put out was found not to prefer him to that years stipend against the lncumbent possessing and serving the Cure 〈◊〉 Michalmas bona fide Iuly 9. 1663. Kirkaldy contra Balcanquel A Stipend whereto a Stipendiar was presented at Lambass and served from thence and was admitted shortly after Michalmass reached not the whole stipend but the half though the Presentation was before Michalmass and the actual service seing the Admission was shortly after Iune 7. 1664. Hay contra Collector of Vaccand stipends A stipend was found to affect the whole Teinds unbought where there was not a Locality and so the Minister might take himself to any Hereâ—or for his whole free Teind and not pro rata without prejudice to him to pursue for Relief December 3. 1664. Hutcheson contra Earl of Casâ—â—ls A Stipend was found instructed by seven years possession without any Title in Writ so as to give a possessory judgement November 25. 1665. Petrie contra Mitchelson A stipend was found to belong to a Minister Transported in Ianuary who continued preaching till April and not to his Successors who was presented before Whitsonday but not admitted till Lâ—mbass none compearing for the Collector of the vaccand stipends Ianuary 26. 1670. Mcquâ—en contra Marquess of Dowglass and Purves STOLLEN GOODS were â—ound recoverable by the owner by warrand from the Sherifâ— summarly without citation of the possessors though they had peaceably possessed the Gooods four moneths in that pleugh unless they had acquired possession by an onerous Title Iuly 7. 1671 Strachanâ— contra Gordounâ— and others Vide Spuilzie SVBMISSION betwixt Commissars to the Bishop without any determinat Ish or time determined to be filled up or blank but generally referring all controversies that should arise to the Bishop was found valide and not determined by a year but a Term was affixed to determine what differences are now occurring February 3. 1669. Bosewel contra Lindsay of Wormisâ—oun SVBSTITVTION Vide Clause SVCCESSOR LVCRATIVE was not inferred by a Disposition by a Father to a Son having an elder Brother living or so presumed as lately before gone out of the Countrey and so not then alioqui successurus February 28. 1662. Hamiltoun contra Mâ—farlane of Kirktoun Successor lucrative being alleadged by a Disposition of Land by a Father to his Son in his contract of Marriage for a Tocher payed to the Father and debts and Bairns Portions far within the value of the Land he was not found lyable in solidum nor yet the pursuer put to a Reduction but the passive Title was sustained personaliter in so far as the onerous Cause was less then the ordinary price at that time with annualrent since the intenting of the Cause Iune 17. 1664. Lyâ—n of Muâ—resk contra 〈◊〉 Successor Lucrative was not inferred by a Disposition being only to a Nephew the brother being alive who was not â—ound alioqui successurus as in the case of an Oye November 22. 1665. Scot contra Bosâ—wâ—l of Auchmâ—eck Vide Lucrative Successor A SVMMONS whereof the Executions appeared visibly new and the user would not abide by it was found not to be transferred but whether an Inhibition raised on that summons would thereby fall or if warrand might be granted to use new Executions on that Summons though year and day was past and that by special priviledge to validate the Inhibition was not decided Ianuary 12. 1665. Wilson and Callender her Spouse contra Summons not being execuâ—e within year and day from the date thereof no process was sustained thereon Iuly 22. 1665. Row contra Viscount of Stormont Summons on an Assignation libelled at the Assignays instance was not sustained seing the date of the Assignation was posterior to the date of the summons albeit the Cedent concurred Novembâ—r 15. 1666. Abâ—rcrombâ—e contra Andersons A SVPERIOR not being called to a Cognition of Marches by Arbiters or legally cited doth not annul the same but it is but prejudice to the superiour when the Fee shall be in his hand February 8. 1662. Lord Torphichan contra A Superiour by receiving an Appryzer was found not to derogat from the Right of Ward in the Superiour though he made no reservation seing it was a necessary Act for him to receive Iuly 19. 1664. Hospital of Glasgow contra Campbell A Superiour bound in absolute warrandice against Ward having a gift of his own Ward to his own behove was found not to distress his Vassals thereby farder then for a proportional part of the composition and expenseâ— February 15. 1665. Boid of Penkil contra Tennents of Carsâ—uth A Superiour was decernâ—d to receive an Adjudger though the superiour himself had appryzed and alleadged a better right but the Infeftment to be salvo jur◠〈◊〉 sâ—o Iuly 4. 1667. Chein contra Christie A Superiour giving a disposition of his Vassals superiority reserving their property and which disposition bear that the Aâ—quirer should hold of the superiour himself The said disposition with the Infeftment thereon was found null as interponing the Acquirer betwixt the superiour and his vassal but was sustained as a gift of Non-entry in respect it bear an assignation to all the casualities of the superiority and the general declarator thereon was found to extend to the feâ—-duties after citation Ianuary 30. 1671. Dowglas of Kâ—â—head contra his Vassal A Superiour being charged to receive an Adjudger was â—ound to have his option either to receive him for a years rent or to pay his sums getting assignation to the adjudication but â—o that the Land should be redeemable from the superiour for the sums princâ—pal and annualrent contained in the adjudication without any sum for composition of Entry and that the adjudication was in this as an appryzing by the 36. Act King Iames 3d. Iune 10. 1671. Scot of Thirlâ—stane contra Lord Druâ—laâ—rig SVPERIORITY of Kirk Lands annexed to the Crown Anno 1633. reserving the Feu-duties to the Lords of Erection who consented to the surrender was â—ound not to be a ground for the Vassal to force the superiour to instruct his consent but that it is presumed Iuly
27. 1662. Watson contra Elâ—is â— Here Haâ—â—age and Carrage were excepted to the King Superiority and property of the same right coming in the same persons by distinct means and they infeft in the superiority and supplicating the Lords that they would ordain precepts out of the Chancellary to infeft them in the property seing they could not infeft themselves The Lords thought that they might be either infeft upon the Kings precept or their own precept or both November 26. 1668. Daughters of Moâ—â—oun supplicants IN A SVSPENSION a reason of payment by another Co-principal was not found requisite to be instantly verified nor the Defender put to find better Caution though it was alleadged he was in hazard of breaking but only to give his oath de calumnia Iuly 15. 1665. Vrquhart contra Blair Suspension of a Minister was found not to take away his stipend he not being deposed Iuly 26. 1661. Ker contra Minister and Parochioners of Carrin Suspension granted on supplication of all Hornings that should be condescended on for Relaxation only and to give personam standi in judgement without stoping any other execution December 7. 1669. Vrquhart supplicant TACIT RELOCATION was found to indure for more years during which it was not quarrelled not the beneficed person could expreâ—ly set together Ianuary 16. 1663. Earl of Errol câ—ntra parochioners of Vry Tacit Relocation of a Tennent warned cannot defend â—he sub-tennent against singular successors who would only warn natural Possessors Ianuary 30. 1663. Rickart contra Here the sub-tennent had required thâ— Tennent to give his Tack for his defense Tacit Relocation after an expyred Tack of Teinds was sound interrupted by inhibition though not used by the setter of the Tack but by a third party on a distinct Right unless the alleadger of the tacit relocation could condescend upon a right in the setter of the Tack that might exclude this pursuit and he condescending that the â—etter of the Tack was presented as parson and had seven years peaceable possession thereby the same was â—ound sufficient to maintain his Tennent by tacit relocation until the Parson took assignation from the pursuer and so acknowledged his right which was found to take away the Tacit Relocation of the Deâ—ender from that time though it could not have taken away an unexpyred Tack Iuly 18. 1671. Earl of Hume contra Laird of Riselaw A TACK set by a debitor to his creditor for seven years for such a Tack-duty exprest with a clause to retain his annualrent in the first end and not to be removed til the principal were payed was found valide against an appryzer subsequent as to the endurance of the Tack having a definite Ish and not during the non-redemption and that there was a superplus of the Tack-duty above the annualrent for which superplus alone the Heretor might have set it but was not sustained as to the clause not to remove which was found personal not effectual against a singular Successor Iune 15. 1664. Thomson contra Reid A Tack was found to be no such real Right as the Back-bond of the receiver thereof did not oblige his singular Successor but that the Back-bond being of the same date was relevant to qualifie the Tack against the singular successor which Back-bond bear a Reversion which was not found needful to be Registrate neither was it intimate before to that singular successor Ianuary 8. 1â—68 Forbes contra A Tack of Land was found to give the Tennent no right to any Minerals under the ground as to Clay for making of Pipes and that the Tennent could give no Licence to any to dig the same but de natura rei it was reserved to the Heretor with a power to open the same satisfying the Tennents damnage February 15. 1668. Colquhoun contra Watson A Tack of Teinds set without consent of the Patron for more than three years was not found null simply by the Act 1621 but was valide as to the three years Iuly 1â— 1668. Iohnstoun contra Parochioners of Hâ—â—â—oun A Tack for four years and ay and whiâ—e sum were payed was found valide against the Liferenters Assigney December 18. 1668. Swintoun contra Brown Here the Assigney was not found as a singular successor as in Rights passing by Infeftment A Tack of Teinds set for more than three years without consent of the Patron was found valide by his tacite consent and homologation by taking Right to the Tack and obtaining prorogation thereon Ianuary 19. 1669. Earl of Athâ—l contra Robertson of Strowan A Tack of Teinds for several nineteen years and several lifes was found not to be past from by the Tacks-mans taking Assignation to another posterior Tack for a greater duty or for greater endurance seing he did not take the second Tack originally himself but purchased it from a powerful party to prevent his trouble and did not brook by it nor pay a greater duty than was in his first Tack Iune 24. 1669. Kennâ—dy and More contra Iaffray A Tack of Teinds set by an Vniversity for a definite space with an obligement to renew the same in all time thereafter was found not effectual after the said definite time nor obligatory upon the Vniversity unless it had proceeded upon a sufficient cause onerous and albeit the same duty was received by the Vniversity after the 〈◊〉 time It was found no homologation of the obligement but as brooking per racitam relocationem Iuly 13. 1669. Old Colledge of Aberdenâ— contra the Town of Aberdene A Tack of a House by word for a year being fourteen dayes before the Term was found not to admit locum penitentia by giving over within fourty eight houres after the taking but that the Setter setting again to another imported acceptance of the overgiving though that other possessed not and the possessor not removing precisely at the Term did not liberate the Taker in respect of the custome of Edinbâ—rgh not to remove till six weeks after the Term Ianuary 7. 1670. Ker contra Dawnie A Tack gâ—anted by a Tutor in securâ—ty of a sum borrowed for the Pupils use having no special Ish but to endure while the Money 〈◊〉 payed was susâ—ained February 21 1671. Armor contra Lands A Tack â—o the Tackâ— man during his leâ—e and the life of his first Heir was not understood to be his Heir entered but that his eldest son having survived him who might have been Heir he needed no service for the benefite of a Tack but that part thereof was fulfilled though he never possessed conform Iune 17. 1671. Lord Lovat contra Lord Mâ—donald Tack Vidâ— Clause December 10. 1661. Kâ—nrosi contra Laird Hunthil November 23. 1664. Scot contra Laird Barefoot c. TAXATION 1633. was â—ound sufficiently discharged by the discharge of one who was held and repute Collector without shewing any commission or being a person in Office December 14. 1665. Duke of Hamiltoun contra Laird of Clackmannan Taxation by a stent Roll was found only
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 life-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
he thought there was no Clause in any of these Writs in the Pursuer or his Predecessors Favours The Lords having considered the Oath Ordained the Defender to produce the Disposition denunding the Pursâ—ers Predecessors and thought that being produced simply without condition of Reversion it liberat him from producing the Pursuers Predecessors Progresse though made in their Favours but because the Pursuer alleadged that in their Predecessors Progress there was a Clause de non alienando which would work in his Favour and that the Oath was not positive but that he thought They Ordained the Defender to be examined if he had any Tailzie Daughters of Balmirrino contra Eodem die THe Daughters of Balmirrino having pursued the Heirs Male for their Portions contained in their Mothers Contract of Marriage and for a competent Aliment untill the same were payed The Defender renunced to be Heir and was absent The Lords advised the Contract by which they found the Portion payable at the Daughters age of fyfteen and Aliment till that time but no mention of Annualrent or Aliment thereafter yet they found that the Aliment behoved to be continued till their Marriage or the payment of their Tochar They being Minors and leised by not pursuing therefore at the Age of fyfteen but that they could not have Annualrent seing the Contract bare none Dame Elizabeth Fleming contra Fleming and Baird her Husband November 16. 1664. IN an Accompt and Reckoning betwixt Dame Elizabeth Fleming and her Daughter and Robert Baird her Spouse The Lords having considered the Contract of Marriage in which Robert Baird accepted 12000 merk in full satisfaction of all his Wife could claim by her Fathers decease or otherwayes and there being some other Bands in her Name her Mother craved that she might be decerned by the Lords to denude her Self and Assigne to her Mother seing she was satisfyed and she on the other part craved that her mother and Sir Iohn Gibson might be oblidged to warrand her that her 12000 merk should be free of any Debt of her Fathers It was answered for the Mother that there was no such Provision contained in the Contract and the Lords in justice could not cause her to go beyond the terms of the Contract there was no Reason for such a warrandice seing Debts might arise to exhauste the hail Inventary It was answered for the Daughter that there was no oblidgment in the Contract for her to assigne her Mother but if the Lords did supply that as consequent upon the tennor of the Contract they ought also to supply the other It was answered for the Mother that there was no reason for her to undertake the hazard unless it would appear that there was so considerable Adiminition of her Daughters Portion in her favours as might import her taking of that hazard for that abatement and albeit such a warrandice were granted yetâ— it should only be to warrand the Daughter from the Fathers Debt in so far as might be extended to the superplus of the Daughters full portion above the 12000 merk The Lords found that if there was an abatement in favours of the mother it behoved to import tâ—at she undertook the hazard of the fathers Debt not only as to the superplus but simply but seing it was known to the Lords They gave the mother her choise either to compt to the Daughter for the whole Portion if she thought there was no benefit without any such Warrandice or if she took herself to the Contract and so acknowledged there was a benefit They found her lyable to warrand her Daughter simpliciter Lochs and the Earl of Kincairdin contra Hamiltoun November 18. 1664. HAmiltoun and her Authors having obtained Decreet against Lochs as Heirs to their Father for a Sum of money and Annuals thereof after Compt and Reckoning and being thrice Suspended there are still Decreets in foro Lochs and the Earl of Kincardine now Suspends again and alleadged that in the Compt and Reckoning there were several Recepts of Annualrent which were not at that time in Lochs hands but in the Earl of Kincardines whose Father was Co principal bound conjunctly and severally with Lochs Father The Charger opponed her Decreets in foro and alleadged that Kincairdin had no interest for neither could the Letters be found Orderly Proceeded nor yet Suspended against him and whereas it was alleadged that the Clause of mutual Relief would force him to Relieve the Lochs prorata he had a good Defense that they had not intimat to him the Plea and thereby had Prejudged themselves of the Defense upon the Ticket in his hands The Suspenders answered they were Minors and that Kincardin having a clear Interest might choise whether to Defend them or Defend himself against them The Lords reponed them to the Tickets now gotten out of my Lord Kincairdins hands but declared there should be expense granted against them for all the Decreets to which the Chargers were put Thomas Guthrie contra Sornbeg Eodem die GVthrie pursues Sornbeg alleadging that their being a first Wodset of the Lands of Thriplandhill and certain Tenements in Edinburgh to Alexander Veatch or his Authors and a second Wodset of the Lands of Thriplandhill granted to the Pursuers Father and by a posterior Contract The Pursuers Fathers Wodset was Confirmed and a certain Sum added thereto and for both some Tenements in Edinburgh were disponed with this provision that Guthrie should possess thereby and should be comptable for what was more then his Annualrent and Sornbeg having redeemed the first Wodset and taking a Renunciation thereof and having Right to the Reversion of the whole entered to the Possession of the Tenements in the Town whereupon Guthrie craves that Sornbeg may compt and reckon for the Mails and Duties uplifted by him and possess him in time coming to the hail Mails and Duties aye and while he be payed of his Principal Sum and Annualrents or satisfied by Intromission The Defender alleadged First That he having the Right of Reverson though posterior yet having first Redeemed and made use thereof his Right of Reversion by his Disposition being in effect an Assignation to the Reversion and Guthries second Wodset being a prior Assignation to the Reversion The second Assignation with the first Diligence or Intimation must prefer the Defender This the Lords repelled and found no necessity of an Intimation or Diligence to consumat Guthries Right to the Reversion of the first Wodset seing Guthrie was Infeft by his second Infeftment which was equivalent to the Registrating of a Formall Assignation to the Reversion 2dly The Defender alleadged that being Singular Successor and having Redeemed the first Wodset which is now extinct he possesses by an irredeemable Right and so must have the benefit of a Possessory Judgement The Lords repelled this Defense seing seven years Possession was not alleadged 3dly The Defender alleadged absolvitor from the bygone Mails and Duties before intenting of this Cause because albeit he had not
possessed so long as to attain the benefit of a Possessory Judgement which would defend him not only for bygones but in time coming till his Right were Reduced yet before Citation he was bona fide possessor fecit fructus consumptos suos which the Lords found relevant 4ly The Defender alleadged that by the Pursuers Contract he was to be comptable for the superplus of the Mails and Duties of the Lands more then payed his Annualrent and now the Defender coming in place of the Heretor the Pursuer is comptable to him for the superplus The Pursuer answered that albeit he was comptable he might detain those Annualrents and impute them in his Principal Sum. The Lords having considered the Contract found the Pursuer ought to be Re-possessed but that he could not detain the superplus but that he behoved to be comptable yearly to the Defender conform to the Contracte Margaret Mcgil contra Ruthven of Gairn November 22. 1664. MArgaret Mcgil pursues a Reduction of her first Contract of Marriage with Umquhil Patrick Ruthven younger of Gairn upon two Reasons First because it was post nuptias and so donatio inter virum uxorem stante matrimonio revocabilis 2dly Because she was Minor and enorlie leised in so far as she disponed to her Husband and the Heirs of the Marriage which failling to his Heirs 8000 lib. of money and above and the half of some Tenements in Edinburgh worthie 1100 lib. yearly in leiu whereof her Liferent was only of 8. or 10. Chalders of Victual and of her own Tenements but she did not â—etain to her self the Liferent of the Money or any Part of the Stock whereby she is leised in that if the Heirs of the Marriage fail the Money and the Lands goes to the Heirs of the Husband and returnes not to hers and that her Provision being worth 20000 lib. she ought at least to have had the double of the Annualrent thereof in joynter The Defender answered to the first Reason that it was no way relevant seing this was expresly a Contract of Marriage although after the Marriage there being no Contract before it is alike as if it had been before the Marriage and to the second Reason is not relevant unless it were enorme lefion for there being no Portion or rule in Tochars and Joynters but that some get a Joynter equivalent to the Aunualrent of their Tochar some half as much more some double and it being ordinar that Tochars are provided to the Heirs of the Marriage which failling to the Mans Heirs here was no enorme lesion or any thing extraordinar although there were an equality The Pursuer being a Burgess Daughter and her Husband a Gentleman of an ancient Family Quality should be compensed with Means 3dly The Pursuer since she was Major had Homologat the Contract by setting her Joynter Lands and lifting the Rent thereof The Lords having before answer heard Probation of the Provision and of the Joynture and having at length considered the whole Cause They first Repelled the Defense of Homologation because the Pursuer was not quarrelling what she got but what she gave and therefore requiring Rectification to have more They also sustained not the first Reason of Reduction and found the Contract not to be a Donation betwixt Man and Wife and they found the second Reason of Reduction Relevant in so far as extended to an enorme lesion beyond the latitude of Contracts of Marriage amongst such Persons and therefore found it not Relevant to reduce the Fee of the Wifs Provision but found it Relevant to add to her a further Conjunct-fee and therefore Rectified the Contract in so far as she had Assigned her Sums of Money without reserving her own Liferent thereof and found that seing the Fee returned not to her she should have the Liferent of her own Portion and her Provision out of her Husbands Estate which is Eight or Ten Chalder of Victual further Malcome Scot contra Laird of Bearfoord November 23. 1664. BEarsoord having borrowed 4000 merk from Malcome Scot in Anno 1652. By his Contract he is oblidged to pay the Annualrent thereof and the Sum at certain Terms which Contract bears That for Malcoms better Security Bairford sets to him certain Aikers of Land for 53. Bolls of Victual yearly at Malcolms option either to pay the Bolls or to pay twenty shilling less then the Candlemess Fiers Bairford alleadged that Malcolm ought to compt for the full Fiars and that the Diminution of twenty shilling was Usurary given Malcolm more then his Annualrents indirectly by that abatement and therefore both by Common Law and specially by the late Act of Parliament betwixt Debitor and Creditor that Addition was void It was answered that there was here no Usurary Paction But it was free to Malcolm Scot to take the Lands by his Tackâ— for what Terms he pleased and he might have taken it for half as many Bolls or at four merks the Boll for each Boll which would have been valid 2ly The Case of the Act of Parliament meets not because that is only in Wodsets here there is neither Infeftment nor Wodset but a Personal Obliegement and a Tack 3ly There is a just reason to abate so much of the Boll because the Tennent behoved to be at the Expense of the Selling thereof and at the hazard of these that bought if they failed in payment The Lords Sustained the Tack without Annulling the Abatement and found it not Vsurary Halyburtoun contra Porteous Eodem die HAlyburtoun having Married a Widow in the Potter-raw there was no Contract of Marriage betwixt them but he gave her first an Infeftment in all the Lands he had the time of the Infeftment and thereafter he gave her a second Obliegment providing certain Lands to him and her and the Heirs betwixt them which â—ailzing to devide betwixt their Heirs Her Heirs pursuing to fulfill this Obliegment Halyburtoun alleadged it was donatio inter virum uxorem and now he Revocked Which the Lords formerly found Relevant unless the Pursuer condescended that this Infeftment was Remuneratory for a proportionable Provision brought by the Wife and after condescendence having considered what the Wife brought and what of it was before the first Infeftment and what interveened betwixt the first and the second Albeit whatever fell unto the Wife was moveable and would have belonged to the Husband jure mariti Yet if it had been of that value to have Served both the first and second Provision They would have Sustained both as Remuneratory in gratitude to the Wife but they found no such thing condescended on or Instructed and therefore they Reduced the second Provision Collin Hay contra Magistrates of Elgin Eodem die COllin Hay pursues the Magistrates of Elgin for the Debt of a Rebel Escaping out of their Prison They Alleadged Absolvitor First Because it was in the time of Richard the Usurper 2ly The Rebel Escaped by breaking through the Roof of the Prison and
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