Law for such till the Edict of the Pretor quod metus causa gestum erat ratum non habebo l. 1. ff quod metus causa but by that Edict and the Custome of this and other Nations such Deeds and Obligations as are by force and fear are made utterly void though in equity the effect almost would be the same for seing the Delinquence done by Extortion oblieges to Reparation if any should be pursued upon an extorted Obligation he would have the exception of Compensation upon the obliegement of Reparation and so might also by Action obtain such Obligation or other Right to be anulled This Edict was not Competent upon every force or fear but first it behoved to be unlawful l. 3. § 1. ff quod metus causa Secondly Such as might befal a constant man as of Life l. 6 7 8 9. ff l. 9. C. eodem or torment of the Body l. 4. C. eodem or of bondage l. 8. § 1. ff eodem or the loss of Estate l. 9. ff quod metus causa or infamy or disgrace l. 8. § 2. ff eodem or of bonds and prison l. 22. ff eodem but only unlawful and private and not publick Imprisonment l. 3. § 1. ff eodem it was not Competent upon reverential fear l. 8. ff l. 6. C. eodem nor upon fear contracted upon power and dignity d. l. 6. nor of threats l. 9. C. eodem except they were from powerful persons l. 23. § 1. quod metus causa The effect of the Edict was being pursued within a year unless Reparation was made before Sentence the Party was condemned in the quadruple and the penalty was triple and applyed to the Injured and after the year simple Reparation l. 14. § 1. ff eodem Our Customs go much along with the course of the Civil Law in this but so as not bound thereby respecting most when the true Reciprocal Cause of the Obligation or Deed is Force or Fear not being vain or foolish Fear And it is competent ordinarily by way of Action or sometimes by exception Spots Exceptions Tennants of Cockburns-path contra the Earl of Home it was eleided by a Judicial Ratification of the Deed upon Oath July 4. 1642. Agnes Graham contra Anthony Balvaird Extortion is more easily sustained in deeds of weaker persons and therefore Extortion was found relevant to reduce a Disposition by a facile weak person who was apprehended by the purchaser upon a Caption of a third party and detained by his Servants and Officers and not by Messengers and keeped latent in obscure Houses and carried from Place to Place in the Night till he subscribed a Disposition of his whole Estate for a cause not near the third of its value albeit there was produced a cancelled minute to the same effect with the Disposition in question wherein the two Actors of the Force were Witnesses insert but the Disponers name nor no part of it was to be seen but a lacerat place as if it had been cancelled without any anterior adminicle to astruct the truth of it January 10. 1677. Sir Archibald Stuart of Castlemilk contra Sir John Whitefoord and the Duke of Hamiltoun Extortion falls most to be contraverted in deeds done by Wives and therefore when the deed is extreamly to their prejudice and to the behove of their Husbands it is presumed as done ex reverentia maritali Thus a Wifes Discharge of her whole Contract was found null without alledging any Compulsion January 9. 1623. Marshel contra Marshel But ordinarily Marital reverence is not sufficient though the Husband were vir foerox and was thereafter Divorced Hope Husband and Wife Hepburn contra Nasmith In the case of Wives Dispositions or consent to their Husbands Disposition it was found relevant to reduce the same that the Wife at the time of the subscribing before the Witnesses declared that she was compelled providing that a third party a stranger to the Husbands fault were restored Nicol. de his quae vi Lady Cockpen contra Laird of Conheath It was also found relevant to reduce a Wifes consent to her Husbands Disposition because before he had beaten menaced and extruded her for not consenting But in this case it being alledged that the Wife appeared well content at the subscription Witnesses were examined hinc inde ex officio for tryal of the truth June 27. 1632. Cassie contra Fleming But where a Husband was proven to be vir foerox and that he did threaten his Wife to do the deed in question and that she appeared to the Witnesses unwilling the time of the subscription it was found relevant June 24. 1664. Woodhead contra Barbara Nairn But a Wife subscribing her Husbands Testament containing provisions prejudicial to her Contract of Marriage was not reponed as having done it ex reverentia maritali at her Husbands desire who was moribundus he having lien long sick and she having married within a year thereafter and the deed done to her only Daughter January 24. 1674. Marjory Murray and Michael Jaffray contra Isobel Murray Upon the like ground Extortion will be the more easily presumed and sustained in the deeds of the persons who are weak and infirm of Judgement or Courage then of these who are Knowing and Confident and more easily in Deeds and Obligations gratuitous and free then in such as are for an Onerous Cause which will not easily be anulled unless manifest Lesion do appear or that the compulsion be very evident Yet the Resignation of the Earldome of Mortoun in the hands of King James the fifth was reduced because the Resigner was then imprisoned by the King without any visible cause and was discharged the same day he made the Resignation Sinclar April 12. 1543. Earl of Mortoun contra the Queen Metus was sustained to reduce a Bond granted by a party because he was taken by Caption being sick January 22. 1667. Mr. John Mair contra Stuart of Shambelly It was also sustained to reduce a Bond granted by two Sons for freeing their Father who was taken by a Caption though the Charge was suspended he being carryed to the hills and Menaced on his Life though the Sons got abatement and so there appeared a Transaction December 8. 1671. Mcnish contra Spalding and Farquherson 9. Circumvention signifieth the Act of Fraud whereby a person is induced to a Deed or Obligation by deceit it is called dolus malus and it must needs be the cause of the Obligation or Deed and so not be known to the party induced before it can have any legal effect for he who knoweth the snare cannot be said to be insnared but to insnare himself and though deceit were used yet where it was not deceit that was the cause of the Obligation or Deed but the parties proper motion inclination or an equivalent cause Onerous it infers not Circumvention so neither doth error nor mistake though it be the cause of the Obligation or Deed and be very prejudicial to the erring party and though if it
favourable but the adjection of a penalty or estimation makes not the Obligation alternative But if any of the Members of the alternative become not intire the Debitor connot offer that Member January 18. 1675. Collector of the King and Lords Taxation contra Inglis of Straitoun The manner also of performance admitts not that the Debitor may perform by parts that which he is oblieged to by on Obligation if it be not that which cannot be performed all at once as the performance of some Acts requiring divers seasons but otherways it must be done without intermission for neither can Money or Grain be delivered at one instant but that is understood to be performed together which is without intermission yet the Civil Law favours the Debitor so far that the Creditor cannot refuse to accept a part of the Money due TITLE XI Liberation from Obligations 1. Obligations cease by contrary consent by Discharge Declaration Renunciation or per pactum de non pentendo 2. Three subsequent Discharges Liberat from preceedings 3. Payment made bona fide 4. Consignation 5. Acceptilation 6. Compensation 7. Retention 8. Innovation 9. Confusion HAVING thus run thorow the constitution and effects of Conventional Obligations It is requisite in the next place to consider their destitution and how they cease which we have exprest in the general term of Liberation comprehending not only payment but all the ways by which Obligations or Bonds are dissolved or loosed and Debitors Liberat We are not here to speak of the Objections competent against Obligations from their nullities for such were never truly Obligations neither of the common exceptions against them and other Rights as Prescription Litiscontestation res judicata Circumvention Extortion c. of which in their proper places But only of the proper ways of taking away Obligations and these are either by contrair consent or by performance or the equivalent thereof 1. First As consent constituteth so contrary consent destituteth any Obligation whether it be by Declaration Renunciation Discharge or per pactum de non petendo which may be extended not only to Conventional but to Natural Obligations as to any duty omitted or transgressed which is past though not to the discharge of the Obligation it self as to the future for love to God or our Neighbour and most of the Duties betwixt Husbands and Wives Parents and Children cannot be Discharged as to the future neither can future Fraud or Force be effectually Discharged for such cadunt in turpem causam If the Write be special and express there can be no question when it concerns a personal Right and is given by the party having power to Discharge and therefore a Discharge of a clause in a Bond constituting an Annualrent whereupon Infeftment followed for a sum lent by a Father and taken to his Son in Fee and bearing with power to the Father during his life to Dispone was found valid and that it required not Registration as a Discharge of Reversion January 6. 1681. Mary Bruce contra Patrick Hepburn But a Discharge of an Annuity belonging to an office by infeftment containing a renunciation of that annuity was not found Relevant against an Appryzer December 9. 1679. Lord Hattoun contra the Town of Dundee Neither did a Discharge of a sum payable to a man and his Wife and the Bairns of the Marriage subscribed only by the Husband exclude the Wife from her Liferent Right to that sum January 22. 1680. Isobel Caddel contra John Raith Neither was a Discharge to a Cautioner upon payment found competent to the principal Debitor unless the Cautioner concur for the Principal may be distressed by the Cautioner using the name of the Creditor as his Cedent July 13. 1675. Margaret Scrimzour contra the Earl of Southesk A Discharge to one or more Debitors Viz. Con-tutors found not to liberat the rest except in so far as satisfaction was made or as the other Con-tutors would be excluded from relief by the party Discharged December 19. 1669. Seatoun contra Seatoun But payment made by one party whose Lands were affected by Inhibition did Liberat the rest pro tanto though it bore not in satisfaction but to restrict the Inhibition January 5. 1675. Ballantine contra Edgar But Discharges by Masters to Tennents for Rent by their Subscription without Witnesses and not being holograph are sustained in regard of the custom so to Discharge November 7. 1674. John Boyd contra Story And by the same custom receipts and discharges of Merchants and Factors in re mercatoria are sufficient by the parties subscription albeit neither holograph nor with Witches But the main Question is how far general Discharges are to be extended which are of two sorts One where there are particulars Discharged with a general Clause and then the general is not extended to matters of greater importance then the greatest of the particulars February 24. 1636. Lawson contra Ark Inglas The other is where the Discharge is only general without particulars which useth not to be extended to Clauses of Warandice Clauses of Relief or obliegements to Infeft or to purchase real Rights and therefore a Discharge of all Debts Sums of Money Bonds Obligations Clags Claims for whatsoever cause was found not to Discharge a Contract for purchasing an Appryzing of Lands and Disponing the same November 19. 1680. Beatrix Dalgarn contra the Laird of Tolquhon Neither was a Discharge wholly general extended to an Obligation by the party Discharged as Cautioner unless it were proven that the Discharge was granted upon satisfaction of that Debt Hope Bonds Ogilbie contra Napier But it was extended to Contravention though there was a Decreet after the Discharge Hope Contravention Laird of Aitoun contra his Brother Yea a general Discharge in a Decreet Arbitral was found to Liberat the submitters Cautioner Hope Bonds Lady Balmastiner and her Son contra Alexander 〈◊〉 Neither was a general Discharge found to extend to a sum assigned by the Discharger before the Discharge albeit the Assignation was not intimat seing the Discharger was not presumed to know the want of the Intimation unless it were proven that the sum was particularly commoned upon or satisfied at obtaining the general Discharge February 3. 1671. Blair of Bagillo contra Blair of Denhead Neither was a general Discharge extended to sums whereuto the Discharger succeeded after the Discharge February 14. 1633. Halyburtoun contra Huntar 2. Three subsequent Discharges do presume that all preceedings are past from As first The Discharges of three immediat subsequent years Rent June 21. 1610. Nowison contra Hamiltoun This was sustained though the Discharges were only granted by a Chamberlain Hope Clause irritant Laird of Wedderburn contra John Nisbit this was sustained to purge a Clause irritant yea though some of the Discharges were granted by the Father and the rest by the Son as Heir February 17. 1631. Williamson contra the Laird of Bagillo which was extended to by gones though a Bond was
Husbands Revocation upon Death-bed subscribed by Nottars because of his Infirmity Hope Husband and Wife Earl of Angus contra Countess of Angus And a Husband was allowed to recall a Bond granted to his Wife bearing that he thought it convenient that they should live a part and therefore oblieged him to pay a Sum yearly for her Aliment albeit it bore also that he should never quarrel or recal the same as importing a Renunciation of that Priviledge February 6. 1666. Livingstoun contra Beg. Yea a Donation by a Husband to his Wife was found Revocked by a Posterior Right to his Children though it was not a pure Donation but in lieu of another Right and quoad excessum only seing it was notabilis excessus November 20. 1662. Children of Wolmet against Lady Wolmet And un Infeftment bearing Lands and a Miln was found Revockable as to the Miln it not being exprest in the Wifes Contract February 5. 1667. Countess of Home contra Hog This was extended to a Wifes accepting of an Infe ftment in satisfaction of her Contract February 12. 1663. Relict of George Morison contra his Heir It is also Revockable indirectly by the Husbands posterior Disposition of the Lands formerly Disponed to his Wife in Life-rent July 16. 1622. John Murray of Lochmaiben contra Scot of Hayning A Donation by Infeftment granted by a Man to his Wife beside her Contract found Revocked by an Annualrent out of these Lands granted to his Daughter pro tanto without mention of Revocation December 15. 1674. Mr. Robert Kinloch contra Raith It was also found effectually Revocked by the Husbands submitting of the Right of the Land wherein he had formerly gifted a Life-rent to his Wife and a Decreet Arbitral adjudging the same to another Nic. de Donat. inter virum uxorem Viscount of Annandail contra Scot. But Donations by a man to his Wife who had no former Provision nor Contract of Marriage found not Revockable being in satisfaction of the Terce due by the Marriage March 25. 1635. Laird of Louristoun contra Lady Dunipace The like November 22. 1664. Margaret Mcgill contra Ruthven of Gairn But where the Husband granted Infeftment of all that he then had there being no Contract of Marriage And thereafter a second Infeftment both Stante Matrimonio The first was sustained being in place of a Contract of Marriage but the second was found Revockable 23. of November 1664. Halyburtoun contra Porteous And a provision to a Wife having no Contract of Marriage was found Revockable in so far as it exceeded a Provision suitable to the Parties 27. of July 1677. Short and Burnet contra Murrays Yet the want of a Contract did not sustain a Donation by a Wife to her Husband to whom she assigned an Heretable Bond the Husband being naturally oblieged to provide for his Wife and not the Wife for her Husband December 15. 1676. Inglis of East-shield against Lowry of Blackwood And an Assignation to an Heritable Bond by a Wife to a third Party but to the Husbands behoove found Revockable by the Wife after the Husbands death even against the Husbands singular Successor for causes onerous the trust being proven by Write June 17. 1677. Margaret Pearson contra Mclane Yea a Donation by a Wife by Assignation of her former Joynture to her Husbands behoove found Revockable though there was no Contract unless the Husband had given a remuneratory provision January 22. 1673. Janet Watson contra Bruce And a Wifes consent to a Contract of Wodset of her Life-rent Lands with a back-tack to the Husband only found valid as to the Creditor but Revockable as to the Husband in relation to the back-tack declaring the same to belong to her for her Life-rent use that she might injoy the superplus more than the Annualrent June 28. 1673. Arnot contra Buta Donation by a Husband to his Wifes Children of a former Marriage was not found Revockable though done at his Wifes desire January 15. 1669. Hamiltoun contra Banes Nor by a Wife subscribing her Husbands Testament by which her Life-rent Lands were provided to her Daughter July 12. 1671. Marjory Murray contra Isobel Murray Such Donations are also annulled by the Wifes Adultery and Divorce As all Donations are Revockable for ingratitude Hope donatio inter virum uxorem Margaret Dowglas contra Aitoun A Bond conceived to a Man and Wife and her Heirs found a Donation by the Man whose Means it was presumed to be and Revockable by him after her death and a Tack taken by him to himself and his Wife in Life-rent was found Revockable by a posterior Tack thereof to himself and his brothers Son December 21. 1638 Laird of Craigmiller contra Relict of Gawin 〈◊〉 yet thereafter it was found in the same case January 30. 1639. that in respect the 〈◊〉 was set by a third person and that it did not appear to be by the Mans 〈◊〉 that the Back-tack to the Wife was not Revockable But a Donation betwixt Man and Wife altering their Contract of Marriage being done before the marriage it self was not found Revockable January 23. 1680. John Home contra John and George Homes yea where the Donation did bear date before the Marriage the Husbands Heir proving the Write antidated and that it was truely after the Marriage the Donation was therefore found Revockable July 24. 1667. Earl of Dumfermling contra Earl of Callender 15. To come to the Interest of the Husband and Wife after the Dissolution of the Marriage we must distinguish the Dissolution thereof which falls by death with in year and day from the solemnizing thereof and that which is Dissolved thereafter for by our Custome this is singular which is found no where else in the Neighbouring Nations that if the Marriage Dissolve within year and day after the Solemnizing thereof all things done in Contemplation of the Marriage become void and return to the Condition wherein they were before the same and so the Tocher returns back to the Wife or these from whom it came and she hath no Benefite or any Interest either in the Moveables or Heretables either by Law or Contract provided to her nor hath he any Interest in hers unless there were a living Child born which was heard cry or weep in which case Marriage hath the same effect as to all intents and purposes as if it indured beyond the year and this is extended to both the Marriage of Maids and Widows July 23. 1634. Maxwel contra Harestones And extended also to an Infeftment by a Husband to a Wife though it had no relation to the Marriage but was only presumed to be hoc intuitu November 16. 1633. Grant contra Grant and not only extended to the Wife and Husband and their Heirs but to any other person concerned Restitution being made hincinde of all done 〈◊〉 Matrimonii June 8. 1610. Laird of Caddel contra Elizabeth Ross yea a Disposition by a Father to a Son of his Estate in Contemplation of
concerning the mind and purpose is not probable by Witnesses but by Write or Oath of Party November 17. 1627. John Inglis contra Gilbert Kirkwood 30 of January 1629. Captain Crawford contra Laird of Lamingtoun Yet if Fraud otherways appear Witnesses will be admitted to prove the having before Citation that the haver may instruct that he warrantably put the same away July 14. 1666. Fountain and Brown contra Maxwel of Netheryet But Witnesses will not be admitted to prove the delivery of any Write by the granter thereof whether it be Bond or Assignation as being Chyrographum apud debitorem repertum presumitur solutum which was sustained as to an Assignation in the hands of the granters Son who did his Affairs and Witnesses were not admitted to prove that the same was delivered to the Son as Agent for the Pursuer December 14. 1666. Anna Fairly contra the Executors of Sir William Dick. This presumption is stronger in relation to Bonds which are most ordinarily taken away by retiring the same without taking Discharge and therefore being found in the Hands of the Debitor or his Heir they are presumed to be satisfied and retired or being in the hands of a Cautioner if it appear by his Oath or other Evidence that he got the Bond from the Principal Debitor to take his name from it June 26. 1623. Carmichael contra Hay of Munktoun otherways the presumption would not hold by the Bonds being found in the hands of a Cautioner or of an Executor for whom simple retiring of the Bond will not be sufficient without Discharge or Assignation Exhibition and Delivery is competent to any party in whose favours a Write is conceived without necessity to prove that it was delivered for that is presumed if the Write be out of the granters hand so that the granter is necessitat to prove that the Writ was depositat upon terms not performed or that it was lent lost Stollen or passed otherways from him then by delivery for prevention of which the English custome is good that the Write bears not only Signed and Sealed but delivered before the Witnesses But seing with us delivery is presumed it is ordinarily required that the granter of the Write be called in the Exhibition that he may be heard to propone any thing that may take off the presumption yet this will not be necessary in recovering Securities of Land or other real Rights especially if the Pursuer be in Possession But in several cases Writes are effectual without Delivery As First Writes granted by Parents in favours of their Children November 11. 1624. Bairns of Eldersly contra his Heir Secondly Mutual Contracts or Minuts June penult 1625. Valence contra Crawford Thirdly Writes bearing a Clause dispensing with Delivery Fourthly By Reservation of the granters Liferent and power to Dispone June 19. 1668. Agnes Hadden and Mary Lauder contra Shoarswood The like was found lately in a Disposition of some Ackers of Land to Thomas Kincaid Chyrurgian Fifthly An Assignation taken by a Debitor in name of his Creditor for his Creditors releif as Cautioner for him intimat by the Debitor was found effectual without delivery January 18. 1677. Dick of Grange contra Oliphant of Gask February 24. 1680. John Mclurg contra William Blackwood The like was found where the Debitor took a Bond in name of his Creditor which was presumed to be for that Creditors satisfaction security and not in trust and not affectable by Arrestment for the Procurers Debt before it was delivered July 12. 1677. Mr. John Bain contra Mcmillan But where the Bond was taken blank and Arrestment laid on before it was filled up with the Creditors name or delivered to him the Arrester was preferred February 27. 1678. Campbel and Cunninghame contra Mr. John Bain and Mcmillan Delivery is not presumed of Bonds of provision to Children in the Family in competition with Creditors though their Debts be posterior to the dates of the Bonds of Provision unless the delivery thereof be proven anterior to the Debt otherwise Creditors would be most unsecure by Parents making large Bonds of Provision which they ordinarily keep by them which will not be extended to Bonds taken from Debitors in the names of Children or wherein they are substitute these not being latent but known to the Debitor but the simple proving the having of Writes after Citation is sufficient to infer the Conclusion unless the lawful Cause be alledged in the Defence and proven and the having of Writes though of great importance is probable by Witnesses 15. Under the Obligation of Restitution is comprehended the Obligation of Division whereby what we possess in common with others or indistinct from that which they possess we are naturally oblieged to divide it with them whensoever they desire to quite that Communion for thereby we Restore what is their own and we are not oblieged thereto by any Contract or Delinquence It is true the Contract for Society includeth the obliegement to divide after the Society is ended but Communion falleth many times where there is no Society or Contract as by Succession Legacy Gift c. Hence arise these three Actions frequent in the Roman Law mainly because Heretage did then befall to the nearest degree of Agnats as now it doth not viz. Actio familiae Hersiscundae Actio de communi dividendo Actio de finibus regundis The first is the division of that which falls by Succession The second for division of that which is otherwise common The third for distinction or clearing the marches of Contiguous Grounds In these either Party might be Pursuer and he is held to be pursuer who did first provoke to Judgement but because they do chiefly concern Immoveable or Ground Rights we shall say no more here of them TITLE VIII Recompence 1. Recompence or Remuneration a Natural Obligation 2. Obligatione Negotiorum Gestorum 3. Actio directa contraria de Negotiis gestis 4. The Diligence of Negotiators 5. The Natural Obliegement to Recompence in quantum locupletiores facti sumus 6. Actio de in rem verso 7. Relief due to these who satisfie Obligations whereby more Persons are lyable in eosdem 1. THE Obligation of Remuneration or Recompence is that Bond of the Law of Nature oblieging to do one good deed for another and it comprehends First all Obligations of Gratitude which are generally acknowledged by all Nations and the breach thereof is abhorred si ingratum dixeris omnia dixeris yet because the complaints of Ingratitude are so frequent and unclear every one esteeming highly of the demerit of his own Actions therefore most of them are laid aside without any legal remedy for that which is done animo donandi though it doth induce an Obligation upon the mind and affection of the receiver to be thankful yet doth not bind to the like liberality in case of necessity but in few cases as a Master gifting Liberty upon this ground did put an Obligation upon the Servant
Creditors for anulling posterior Deeds yet it is not exclusive of other Remeids for anulling Deeds done in defraud of Creditors though contracting after these Deeds where Fraud in the design doth evidently appear whereof we have now instanced several Decisions So a Bond granted by a Father to a Son forisfamiliat payable after the Fathers Death was Reduced at the Instance of the Fathers posterior Creditors continuing Traffick with him February 1669. Pott contra Pollock And a Bond payable only by the granters Heir if he had no Heir of his own Body was Reduced as Fraudulent January 24. 1677. Blair of Ardblair contra Wilson And a Disposition of Lands purchased by a Merchant to his Son was found Affectable for the Debts of Merchants Strangers who began to Trade with the Father before the Disposition and continued after even as to the posterior Debts seing the Father continued still to act as Proprietar though by his Compt Book it appeared he knew himself to be Insolvent And though the Sons Infeftment was publick and Registrat which stranger Merchants were not oblieged to know July 2. 1673. Street and Jackson contra Masson Yea an Infeftment by a Father to his eldest Son an Infant was reduced at the Instance of posterior Creditors his neighbours where the Seasing was Registrat seing the Register was carried out of the Countrey and the Father continued to act not as Liferenter but as Proprietar December 4. 1673. Reid of Bullochmyle contra Reid of Daldillin And generally Latent Rights amongst confident persons are reduceable by posterior Creditors But the Liferent of the whole Conquest of a Merchant provided in a Contract of Marriage to his Wife being an ordinary Clause was not found fraudulent February 10. 1674. Marion Gray contra the Son and Creditors of her Husband Secondly though this Statute bears all Alienations without Cause onerous in prejudice of prior Creditors to be null ab initio and without declarator by exception or reply Yet Custome hath found this inconsistent with the nature of Infeftments which cannot be reduced till they be first produced and all the Authors called which cannot be by way of exception but by action But a Disposition of Moveables was found anullable by reply November 18. 1669. Henderson contra Henderson June 18. 1671. Bower contra Lady Couper And likeways a profitable Tack February 6. 1662. Doctor Hay contra Marjory Jamison Neither are the receivers of such Alienations comptable for the profits ab initio till they be put in mala fide by the pursuites of anterior Creditors whose Rights they are not presumed to know till they be produced and found preferable Thirdly Though the Title of this Statute and much of the Body of it be against the Alienations of Bankrupts in prejudice of their Creditors yet the Statutory part declares against all Alienations to any conjunct or confident person without a just price being in prejudice of anterior Creditors to be anulled which hath always been extended not only to Dispositions of Bankrupts made to confident persons but to any person without a competent price or equivalent cause onerous and therefore such gratuitous Deeds are reduceable by anterior Creditors though the granter was not then Bankrupt as a broken Merchant flying But if he were before or did by these fraudulent Deeds become insolvent Hope Usury Pringle contra Ker. February 16. 1628. Kilgour contra Thomson January 17. 1632. Skeen contra Belstoun Yea if thereby his Estate cannot afford ready Satisfaction or Security as being incumbred with many Appryzings or Adjudications though the Reversions may be equivalent to all his Debt Yet anterior Creditors may reduce gratuitous deeds done by such persons being more fit that anterior Creditors should be preferred and the obtainers of these gratuitous Rights should be put to recur upon the Reversions by their warrandice February 10. 1665. Lady Craig contra Lord Lour But there is nothing in this Statute or by Custome to anull any gratuitous deed in favours of Wives Children or Strangers if at the time of the granting and delivery thereof the granter had an Estate sufficient for these and all his Debts unaffected by Appryzing Adjudication or Arrestment Neither will Inhibition suffice nor Apprizing or Arrestment for small Sums to be a ground for this Reduction Competent provisions to Wives or Husbands are not accompted gratuitous but onerous ad sustinenda onera Matrimonij and for mutual Provisions But if exorbitant they will be lyable in quantum locupletiores facti December 23. 1661. Dam Rachel Burnet contra Lepers Neither are Provisions or Gifts to Children anullable by anterior Creditors if the granter had then a visible Estate sufficient for these and all his Debts as was found in a provision by a Father to his Son by his Contract of Marriage though the Son received the Tocher June 22. 1680. Grant of Cairnhauch Contra Grant of Elshes November 10. 1680. Mckel contra Jamison and Wilson Yea the Portions of Children were not excluded by prior Creditors their Father having then a sufficient visible Estate though ex eventu it proved insufficient by running on of Annuals and Accumulations of Appryzings December 11. 1679. Creditors of Muswall contra Children of Nuswald June 30. 1675. Clerk contra Stuart and Williamson And so a Disposition by a Grand-Father to his Oye was not annulled by Anterior Creditors March 6. 1632. Laird of Grantoun contra Ker. Fourthly Though this Statute requires a just price it did not anull a Disposition though a prior Creditor offered a greater price if the price received was the ordinary Rate of the Countrey and though there was a personal Reversion to the Disponers eldest Son only January 16. 1677. Earl of Glencairn contra John Brishane The like where the pursuer had obtained a prior minute of Sale for a greater price yet it did not reduce a posterior Infeftment purchased bonafide though for a lesser price being competent July 18. 1677. Murray of Kilor contra Drummond of Machanie Fifthly Though the Statute mentions only the anulling of Dispositions c. yet it is ordinarly extended to Bonds or obliegements whereupon Appryzing Adjudication or Arrestment follow Sixthly Though Dispositions or other Rights be fore equivalent Causes Onerous yet by the posterior part of the Statute they are accompted fraudulent and reducible if the Bankrupt or the interposed person in Trust do by voluntar gratification prefer one Creditor to another who hath done more timeous and lawful diligence where by Bankrupt is not only to be understood a notour Bankrupt but any person insolvent or by the preference becoming insolvent or who hath not a sufficient visible inaffected Estate for his other Creditors But where a Debitor of an intear Estate pays his lawful Creditor or satisfies him by Dispositions or Assignations neither the Tenor nor Extention of the Statute reacheth these Cases albeit there be inchoat and incompleat Diligence at the Instance of other Creditors Seventhly Where that Clause of the Statute bears the annulling of Deeds done
Our Decisions have been exceeding various in this matter for clearing whereof several cases must be distinguished First In the case of the Contracters themselves and in that either the mutual obliegements are conceived conditionally that the one part being performed or upon the performance thereof the other part shall be performed or where the obliegements are not conceived conditionally yet they are properly mutual Causes each of other The obliegement to deliver the Ware and to pay the price in permutation the things exchanged and mutual obliegements for delivery thereof are the mutual causes each of other in Location the use of that which is set for hire and the hire are the mutual Causes and so are the Obligations hinc inde otherways the Obliegements are not the proper Causes each of other but either wholly different matters which are frequently accumulate in the same Contracts or the one but the occasion and motive and not the proper cause of the other The case of Assignays must be considered in all these For the first The Civil Law is for the Negative that in reciprocal Contracts neither party can have effectual Action except he perform the whole Contract on his part As to the first member of the first case there is no question but when the mutual obliegements are conceived conditionally he that demands the one part must perform the other As to the other member when the Obliegments are mutual causes each of other expresly when the Contract bears for the which causes or when by the nature of the thing appeareth so to be It is most consonant to reason to the Civil Law an our Practice that neither party should obtain implement of the obliegement to him till he fulfil the obliegements by him it was so found July 27. 〈◊〉 Laird of Keirs contra Mr. James Marjoribanks Leidingtoun November 〈◊〉 1565. James Crichtoun contra Marion Crichtoun July 1581. Lord 〈◊〉 contra Provost of Lincluden where the reason is rendered because it is 〈◊〉 data non sequuta till he who craves implement fulfil his own part 〈◊〉 though it be ordinarly understood when the cause of the Obligationaltogether faileth yet upon the same ground so long as the cause is suspended or delayed on the one part the effect is also to be delayed on the other But in Contracts wherein the Obliegements are not the proper Causes each of other the one part hath effect before the other be fulfilled and the same is only reserved or declared not to be prejudged by way of Action or Charge Sinclar February 19. 1548. Laird of Ker contra Panter December 1563. Earl of Glencairn contra Commendator of Kilwinning As to the second case whether an Assignay Charging or Pursuing upon a mutual Contract be in any better case then the Cedent or can crave implement till the Cedents part be performed the difficulty is here that if Assiggnays be cloged with the obliegements of the Cedent it will marr Commerce and render such Contracts ineffectual as to summar execution and so Obliegements therein for Liquid sums of Money might not be Poinded or Apprized for nor any Execution valid thereupon but this will not follow for though these Executions be summarly used they will stand valide only the effect will be suspended till the other part be performed But the Assignay having no title whereby to compel his Cedent to perform his part therefore the other Contracter must either be decerned to assign his part of the Contract to the Assignay to the other part that thereupon he may insist for performance and that before the Extract of his Decreet or rather execution may be sisted except as to Adjudication for his security till he procure implement of his Cedents part or otherways that he find Caution that the other Contracter using diligence against his Cedent for performance that the Assignay shall make up what shall be wanting to him as was done in the case betwixt William Cunningham contra John Ross wherein an Assignay Charging upon a Contract for the price of Lands by which Contract his Cedent was oblieged to cause the Tennants pay certain bygone Ferms therefore the Assignay was ordained to find Caution for satisfying of these Ferms against the Cedent February 15. 1627. William Cunninghame contra John Ross. Hope Contracts Laird of Rentoun contra Robert Dowglas And though a Donatar was found to have Right to the price of Lands due by a Contract though the Rebel had not performed his part of the Contract Hope Cessio bonorum Balfour contra Futhy there was nothing alledged of the insolvency of the Cedent But a Donatar pursuing for the price of Fews the Fewers were assoilzied from the Declarator till the Donatar obtained the Fews to be perfected here it was known the Donatar was in trust for the Rebel who was in power to perform January 28. 1673. Lord Lyon contra Arthur Forbes But there can be no reason that the one part of the mutual Cause should be effectual without the other for if the Cedents back-Back-bond apart would affect the Assignay much more when it is in the same Contract yea though the matter proceed not by way of Contract but by Bonds apart if thereby it appear that these Bonds are mutual Causes one of another the effect should be the same and though there be no more to prove that they are mutual Causes but that they are of the same date and before the same Witnesses the Lords will readily examine the Witnesses insert ex officio whether they be mutual Causes each of other and therefore where a Bond apart did bear that the Creditor should ratifie a Disposition of the same date at his Majority under a great penalty A Bond granted apart to that party of that same date being Assigned the Assignay was found to have no power to lift the principal sum till the Cedent ratified at his Majority or were past his anni utiles without Reduction November 14. 1628. Cunninghame contra Cunninghame The like was found as to Writes of the same date with a Contract anent the same matter though not mentioned in the Contract Hope Contract Duncrub contra Chapman But if in Contracts or mutual Bonds the mutual obliegements have different terms of performance a pursuit upon the one part will not be stoped by not performance of the other part while the term agreed for the performance is not come November 28. 1676. Sir David Carmichael of Basmedy contra Dempster of Pitliver 17. To come now to particulars according to the order proposed Loan comprehendeth both the Contracts in the Law called mutuum and commodatum by the former a thing Fungible is freely given for the like to be restored in the same kind and quantity though not the same individual A Fungible is that which is estimate according to the quantity and is not easily decernable nor noticed in the individual or particular body but only in the like quantity of the same kind the chief of
their removing they leave the Land in better condition then at their entry they get no satisfaction thereof without paction And a Liferenter having Rebuilded a Jointure-house which was burnt by accident in her Vidowity and Rebuilt by her second Husband was found to have no satisfaction therefore except the House had been accustomed to be set for Rent and that the Liferenter or her Husband had no power to demolish any thing that was fixed to the Ground February 2. 1672. Captain Gutbrie contra Laird of Mckerstoun And an Appryzer having Rebuilded a burnt House was not presumed to gift the same to a Liferenter albeit her Seasine was Registrat but she had her option either to get so much out of the Rent of the Tenement as it was worth before the Reparation or to have the possefsion of the Tenement paying the Annualrent of the Sums necessarly and profitably wared upon the Reparation thereof during her Life January 24. 1672. Hacket contra Wat. There remains to be cleared that Appropriation which is by Specification whereby of materials belonging to other owners a new species is produced whether the product belongs to the owners of the materials or to him for whom the Work was made as to which the two great Sects of the ancient Lawers were divided Proculus and his followers attributing the property of all materials to him that made the Work And Sabinus and his attributing the whole to the owners of the materials But Tribonian midseth the matter thus that if the product can easily be reduced to the first matter the owners of the matter remain proprietars of the whole as when a Cup or other 〈◊〉 is made of Mettal but otherways the materials cedes to the Workmanship not only when the materials are consumed but even when they remain and cannot be reduced to their first nature as Wine of other mens Grapes Mault of other mens Bear Cloth of other mens Wool and even a Ship of other mens Timber but not by Maultning of Barly or Dying of Cloth or the like which change not the Species Conanus is of opinion that whether the Workmanship or the Materials be more precious the property is carried by the value And 〈◊〉 esteemeth that there ariseth a communion as in confusion of Liquors proportioned according to the value of the Materials and Workmanship Positive Law or Custom may without injustice follow any of these ways reparation being always made to the party who loses his interest unless the presumption be strong enough to infer that the Workmanship was performed animo donandi by him who knew the Materials belonged to others In Immoveables the constitution or transmisson of property is exprest in Write and is parted in many interests but in Moveables property is simple and full without servitude and there is no other interest in them unless they be impledged neither need the Title Constitution or Transmission of property in Moveables be instructed by Write but is presumed from possession and therefore for the Restitution or recovery of Moveables from the possessor thereof it is not sufficient to instruct that the pursuer had a sufficient right thereto as by the birth or fruit of his Ground or Cattel or as being bought by him and in his Possession But he must instruct the manner how his Possession ceassed as being either taken from him by violence or by stealth or having strayed and being lost or the like and the reason thereof is because moveables pass without Write and oftimes without witness and therefore whatever right parties once had to Moveables it is presumed to be transmitted by Donation sale or otherways unless it be proven that he lost Possession as aforesaid or otherways that it be proven by the Defenders Oath that he knew the thing in question to be the pursuers proper Goods for in that case even his privat knowledge will prejudge him though he had bought it at a competent rate though it be not so in Heretable Rights to whose constitution and transmission Write and Solemnities are necessar neither will it avail though it were a Horse bought in publick Mercat and Booked there for we have not the priviledge of Fairs which the English have that Horse bought in publick Mercat should be secured to the buyer without further question but he buys the same with the peril of the sellers rigt March 19. 1639. Ferguson contra Forrest Hence it is that in all Actions for recovery of moveables there is no more lybelled then that the moveables were the proper Goods of the pursuer and in his Possession for such time by using the same as his own proper goods and condescending how he ceassed to possess as being lent by him which was found relevant to be proven by witnesses though the question was of a Book of a considerable value January 27. 1665. Walter Scot Oy to Scotishtarbet contra Sir John Fletcher or that the goods did stray February 3. 1672. Scot of Gorrenberrie contra Elliot or if the goods were in possession of a Defunct at his death the presumption of sale ceasseth or if there be a stronger contrary presumption as was found in the case of Jewels which the Defender neither could use as proper to his quality and he was not a Merchant or Jewler these Jewels were once in pignorat by Write in that case possession was not found sufficient to infer property December 12. 1665. John Ramsay contra James Wilson And even in the case of Ships of War which are the most considerable moveables property was presumed by possession without write July 26. 1673. Captain Hamiltoun contra the owners of the Statine and the property of Money was inferred by having the Key of the Chist in which the Money was unsealed unless a contrary positive probation were adduced June 18. 1675. Tailour contra Rankin Yea moveables acquired bona side for causes onerous were found not lyable to a Hypothecation or conditions of a written disposition of them unless they had been affected with diligence when they were in the hands of him to whom they were disponed with these conditions December 17. 1675. Creditors of James Masterioun contra Creditors of Alies Thin These are the ways of Appropriation by private Right Appropriation by publick Right is by War and force where there is no common Judge or Authority for in that case equity and that common justice which is acknowledged by all Nations as the rule of right and wrong especially in so far as it is owned by the Law of Nations is a sufficient warrand for obtaining satisfaction by force where it is denyed by justice but our design here being only to consider privat Rights we shall but noice that which by publick Authority is allowed in these cases to be the peculiar Right of privat persons which doth only reach moveables seazed upon by reprysals or the Goods of enemies or their partakers taken in publick War 42. Reprysals or Letters of Mark are granted by Princes or States
are the real Charter yea it is not like they would reject a Bond obliedging to grant such Infeftment albeit it do not de presenti dispone as a sufficient adminicle to sustain a seasine where they had been 40 years possession although prescription was not compleated by immediat subsequent Seasines or uninterrupted possession the Party making faith that he did not keep up or conceal any other part of the Investiture which would sufficiently take off the presumption of Fraudful concealing or away-putting the immediat warrant of the Seasine which might afford defences to the other Party For even in a recent Case of the Infeftment of a Wife in Life-rent her Seasine was sustained upon Production of her Contract of Marriage albeit the Seasine proceeded upon a Bond granted for the same cause January 29. 1665. Mr. George Norvil Advocat contra Margaret Sunter where nothing was alledged of long possession See what was found November 22. 1628. Clappertoun contra Hoome Hope Seasine Murray of Philliphaugh contra Schaw Gray contra Finlayson there could be less question if the Seasine related to a precept apart and did not bear whether the precept proceeded upon a Charter Disposition Alienation or Bond for then the production of any of these would adminiculat the Seazine Seasines within Burgh for serving of Heirs by Hesp and Staple by the immemorial Custom and Priviledge of Burgh being given by the Town-Clerk do prove sufficiently both the propinquity of Blood that the same was Cognosced and Seasine given accordingly without necessity of any warrand or adminicle but in Seasines of Original Rights of conveyances to singular Successors will not be sustained by Seasines by the Town Clerk without Adminicles as to Tenements within Burghs as was found in an Infeftment from a Father to his son bearing to be upon the Fathers Resignation February 11. 1681. Francis Irwing contra Corsan June 21. 1672. William Mitchel contra Thomas Cowie Seasines propriis manibus when either the Superior himself doth give Seasine to his Vassals Acturney or when the Superiors Baily by his Precept gives Seasine to the Vassal himself being present and accepting or when the Superior immediatly gives Seasine to the Vassal in these Cases the Nottars warrant is sufficiently instructed by the Seasine and by the Disposition Contract of Alienation or Bond Or when the Seasine is propriis manibus secundum Cartam Conficiendam if a Charter thereafter made beshown as a Seasine propriis manibus by a Father to his son reserving the Fathers Liferent was found valid against a second Wises Infeftment granted for a competent Tocher being adminiculat by a Bond granted by the Father of the same date with the Seasine obliedging him to warrant the same February 11. 1669. Buchan contra Tait yea a Seasine propriis manibus by a Superior containing Resignation accepted by the Superior and immediatly Seasine given propriis manibus was sustained without any warrant subscribed by the Superior but by the Vassals Disposition containing Procuratorie of Resignation there being no more solemn Infeftment in competition Januarie 17. 1672. John Young contra Thomson But as to Seasines propriis manibus by Husbands to their Wives in Contemplation of Marriage either before Marriage where Marriage followed or after Marriage having no adminicle but the Marriage The Lords according to the different Cases have sometimes sustained them when they were suitable to the parties and not exorbitant and where the question was only with the Husbands Heir Nov. 22. 1628. Clappertown contra Hoom. June 19. 1668. Relict of Wallace of Galrigs Contra his Heir in which case it was instructed that about that time the Wife had disponed to her Husband her Joynture by a former Marriage But such Seasines are easily improven if they be not asserted by the Witnesses insert As in the last case the Heir insisting in improbation there being four witnesses in the Seasine two of them deponed they were not witnesses thereto the third remembred not the fourth was positive for it and the Nottar offered to depone that it was true yet having no adminicle his oath was not taken and the Seasine was improven but if there had been an adminicle the Nottar and one of the Witnesses being positive the Seasine would not have been improven for where there is a warrant mediat or immediat providing a Seasine to be given Quid fieri debet facile 〈◊〉 And therefore the witnesses not remembring would hardly improve such Seasines unless their Testimony were positive giving special circumstances of their remembrance as being in such another Country or far distant place at that time if the truth of that were otherwayes astructed But the general denial to be witnesses could import no more but non memini and therefore an adminicle in write with the protocol or oath of the Nottar if he were alive and especially if possession followed for some time these would stronglier approve then the not remembrance or general denyal of the witnesses insert would improve But this dipping upon a general Question de side instrumentorum we shall say no more of it in this place nor of the Admission and Qualification of Nottars as to which Craig relates the customs of France which were not then nor have not yet been here allowed but certainly more exactness ought to be in the admission of Nottars not only as to their skill but as to their reputation of Honesty and Fidelity and the least want or weakning of these should turn them out For the Introduction of the Solemnity of the Instruments of Nottars was not only because of old few could write and the impression of Seals were easily imitat yea even such rude Subscriptions there being some in Justinian's time who could so artificially imitat anothers hand write that himself could not know it or durst swear it was not his write And therefore he introduced two remeeds that private writes should not prove by the Subscription of the party unless that there were three subscribing Witnesses knowing he Parties Contracters or that there were three Witnesses who depone anent the truth of the Deed or otherwayes that writes were made in publick by a publick person which at first was only done Judicially but thereafter Extrajudicially by a Nottar-publick but our Custom hath returned to private write and 〈◊〉 not the Instruments of Nottars but where they are adminiculat by 〈◊〉 〈◊〉 in the case where parties cannot write and then in matters of Importance two Nottars and four Witnesses are necessary by special Statute But this is not extended to seasines but only to the subscriptions of Nottars for parties February 11. 1669. Buchan contra Tait Julie 5. 〈◊〉 Bishop of Aberdeen contra Viscount of Kenmuir Yet in some cases of small importance Instruments of Nottars are probative and in all cases where witnesses would prove it doth much fortifie the same that they were Witnesses required and Instrument of a Nottar taken thereupon For then the Instrument of the Nottar astructed by
21. 1663. Henry Hamiltoun contra William Hamiltoun Which holds olso in Adjudications by the late Act of Parliament come in place of Appryzings But Securities for sums have Been of a long time taken frequently in another way viz. by simple alienation titulo venditionis with a reversion which is but 〈◊〉 de retro vendendo ordinarly taken a part that if the Creditor were not satisfied he might force the debitor to pass from his Reversion and so his Reversion stood absolutely which gave the occasion to these Kinds of Securities and also because during Popery all Annualrents for the use of sums were discharged as Usury and therefore Creditors bought Annualrents and gave Reversions to the debitors which was the same thing in another convoy As to these Wodsets in this place and that first as to the Constitution of Wodsets And next as to the destitution thereof 2. As to the Constitution of a Wodset it must be according to the thing or Right impignorat for a Tack or Liferent An Assignation to these or any other cessible right may be given in Wodset for security and under Reversion But the ordinary Wodset is by Infeftment of Property or of Annualrent the conception whereof is not under the name of Impledging Impignoration Hypothecation or the like but in the terms of Disposition or Infeftment whereby the property of the thing Wodset passeth and is established in the Wodsetter But under Reversion to the Constituent whereby it hath two parts the Infeftment and the Reversion The Infeftment in Wodsets is in all points like to other Infeftments whether they be Infeftments of Property or of Annualrent or whether they be publick holden of the Constituents Superior or base holden of himself so that all the specialities of Wodsets resolve in Reversion 3. A Reversion is a paction and condition or provision for redemption of any thing alienat upon such Terms as are agreed upon which of it self is no more then a personal obligation whereby the Wodsetter is oblieged until by that excellent Statute Par. 1469. cap. 27. It is declared that the Reversion shall be effectual not only against the first Wodsetter himself but all his Successors in the Wodset Lands whereby reversions are accounted as Heretable and real Rights affecting singular Successors in the same way that Tacks are made real Rights by the Statute thereanent The English by reversion do not understand a Right of Redemption but a Right of Survivancy or Succession as the reversion of an Office is a Title to that Office after the removal of the present Incumbent And that which we call a Wodset they call a Morgage for a Gage is a Pledge which is really ingaged And Morgage is a Pledge the Redemption whereof dieth or is extinct if it be not used at the time and in the manner agreed upon by the parties of that with them in their Morgages not only Clauses irritant or 〈◊〉 legis Commissoriae are valide But if the provision for Redemption be for a definite time that being elapsed the Morgage becomes irredeemable by their common Law what remeid may be had in the Chanclery upon equity I know not 4. Before we come to the Solemnities requisite for Constituting Reversions it is necessary to distinguish the several kinds thereof Reversions are either Legal arising from Law and Statute and not from consent of parties as are the Legal Reversions of Appryzings and Adjudications or they are Conventional by the consent of parties which are either Incorporate in the body of the Wodset-right or a part they are also either principal Reversions or eiks to Reversions and they are either solemn and perfected or only inchoat such as Promises Bonds and Conditions for granting Reversions 5. Legal Reversions require no other solemnity then what is requisite to the legal constitution of the right whereupon they follow The common solemnities requisite for Reversions and other Writes of old was only the Seal of the granter without necessity of his Subscription But by the Act of Par. 1555. cap. 29. It is required that all Reversions Bonds and Obligations for making of Reversions be not only sealed but subscribed by the granters own hand and if he cannot write by his hand led at the pen by a Nottar or otherwayes they make no faith unless the same by consent of parties be registrat in the Books of a Judge Ordinar or that it be a Reversion within Burgh contained in the Instrument of Resignation and Seasine of Lands by the Bailie and Town-clerk And by the Act of Par. 1579. cap. 80. Reversions Assignations and Discharges thereof and eiks thereto or other Writes of great importance are ordained to be subscribed and sealed by the principal parties or if they cannot write by two Nottars before four designed witnesses else to be null and of no faith But the matter of Reversion is perfected by the Act of Parliament 1617. cap. 16. ordaining all Reversions Regresses Bonds or Writers for making Reversions Assignations and Discharges of the same to be registrat in the Register of Seasines and Reversions within sixty dayes of their dates otherwayes to have no effect save only against the granters thereof but not against their singular successors acquiring perfect and lawful Rights But this is not requisite in Infeftments of Burgage-lands within Royal Burghs nor in Reversions incorporat in the rights of Wodset Upon consideration of the inconvenience insecurity of Burgage-lands the Lords by Act of Sederunt ordained the Burghs to take sufficient Caution of their Town-clerks present and to come to insert in their Books all Seasines given by them of Tenements within Burgh and all Reversions or Bonds for granting Reversions Assignations thereto and Discharges thereof Renunciations and grants of Redemption and that within sixty dayes after the giving of Seasine or presenting to them of the Reversions or others foresaids under the pain of the damnage of parties acquiring bona fide for onerous causes that they may incur by such latent rights declaring that such Seasines and Reversions not insert in manner foresaid to be esteemed as latent and fraudulent keeped up of purpose to insnare lawful purchasers which Act of Sederunt is dated February 22. 1681. So that as by the first Act Reversions are made effectual by this last they are made evident that acquirers may be secured against latent Reversions and by the registration or being in the body of the Wodset the necessity of sealling is taken off and for the most part in desuetude It is also consequent from this last Act that not only formal and solemn Reversions in the body of the Wodset or registrat are effectual against singular successors but also Bonds and Writes for making of Reversions otherwayes there needs no ordinance to registrate these for the purchasers security if of themselves they could affect purchasers But promises of Reversion are no wayes effectual against singular successors unless they have been brought into write at least by Decreet before these
know to affect it by legal diligence The reason ordinarly given for taking Writes in that way is to shun the trouble of assignations translations or intimations thereof as they pass from hand to hand according to that Tenor of Obligation frequent in other places whereby the Debitor oblieged him to and perform such things latori presentium by which he is oblieged to pay to none but he may get up the Bond and safely pay to any that hath it There is another reason of taking blank Bonds to shun compensation upon any debt due by the Cedent for the Law alloweth compensation against the assigney upon any debt due by the Debitor to the Cedent before the assignation was intimate But when the Debitor gives a Bond blank in the Creditors name he is thereby understood to pass from compensation which hath been sustained Vide Title 11. upon compensation for it is a just personal objection against him who granted the blank Bond not to stop the effect or exccution thereof upon any other debt due by him to that party to whom he granted the Bond. And albeit such blank Bonds may pass amongst Merchants where intimations are not necessary upon Bills of Exchange which are transmitted by the orders of Merchants thereupon without intimation and though such Bonds may pass amongst persons of intire Credit yet such conveyances if they should be encouraged and pass currently without intimation would be of dangerous consequence and give occasion to much fraud for thereby Creditors should not know in whose person such rights stood and how to affect them for just Debts And although the granter of such blank Bonds or the haver who so transmits them may be excluded from compensation Yet others who may have interest to propone compensation in the same way as they may found upon a Discharge granted by the receiver of the blank Bond to the Debitor therein cannot be excluded from alledging compensation there being no personal objection against them And likewise Conveyances without a Cause onerous in prejudice of anterior Creditors by persons insolvent and fraudulent so that if either the first receiver of such blank Securities or the posterior receivers thereof be insolvent and without an equivalent Cause onerous do transmit such blank Securities only by delivering the same the intermediat havers can hardly ever be known whose Creditors might affect the right while in their hands c. Upon which consideration the first occasion that occurred to the Lords being a blank Bond granted by Marjory Sandilands and delivered to Samuel Veatch he did deliver the same to Marion Geddess who filled up her name in the blank left for the Creditor and registrate the Bond against Sandilands the Debitor yet Tailziefer who was Veatches Creditor having arrested all sums in Sandilands hands due to Veatch in the competition betwixt Tailziefer the arrester and Geddess whose name was filled up in the blank and the Bond registrate in her name before the arrestment the sum remaining yet unpayed in Sandilands hands the arrester was preferred in respect that albeit Geddefs name was filled up in the blank Bond and it so registrate before the arrestment yet the delivery of the blank Bond by Veatch to Geddess being in effect an assignation was found to require intimation and therefore Tailziefer the arrester was preferred In this case Veatch who was first Creditor was insolvent And albe it the Lords in the competition betwixt Thomas Hendrison and David George decided Jan. 18. 1668. preferred Hendrison whose name was in the Bond as Creditor and who offered his oath for clearing whether the bond was blank ab initio and when filled up yet the Lords did not leave it to his oath but took witnesses ex officio who proved that they saw the Bond filled up with Henriesons name before the arrestment laid on by Thomas George in the hands of the Debitor as due to Short his Creditor before the arrestment yet there was nothing adduced to prove that ever the Bond had been blank or delivered to Short And likewise a Bond blank in the Creditors name being delivered by the receiver of the Bond to a Creditor of his in satisfaction of his debt the same was found relevant to be proven that the blank Bond was delivered before the Declarator of Escheat of the party to whom it was first delivered in satisfaction of a Debt due by him before he was denunced Decemb. 19. 1676. and Jan 17. 1677. Lord Bamff contra Grant of Rosasolis There hath been nothing done since to take off the necessity of a formal intimation made to the Debitor of the filling up of the Creditors name upon production of the Bond it self showing that name to be filled up and therefore any arrestment upon the Debt of the person to whom the Bond was first delivered as Creditor or to his own behove or for the Debt of any other person in whose possession it came for his own behove before the said intimation will prefer the arrester As to the manner of probation that the Bond was blank ab initio in the Creditors name it is a strong evidence that it is written with a hand different from the body of the Bond for though blank draughts of Bonds be frequently drawn up by Writers and Nottars leaving the sums the names of the Debitor and Creditor blank which are filled up by any that makes use of the draught yet at the subscription the filler up of the sum the Debitor and Creditors name should be exprest for these are more Substantial then all the rest of the Bond so that if the Creditors name be not filled up with the hand that wrote the Bond or of him who insert the date and witnesses it will be presumed to have been blank in which case the Debitors oath may be taken to whom he did deliver it for his own use and that persons oath to whom he did deliver the same whereby the progress of it till it come to him whose name was insert will be found out and upon this ground a Disposition of Lands bearing to be to two persons for themselves and other Creditors of the Disponers after-specified after which there were several lines written with another hand inserting particular Creditors and sums without mentioning of the filling up there or at the Date of the Write therefore an Inhibition by a Creditor of the Disponers was sustained to reduce the right of these Creditors filled up in the blank as presumed to be filled up after the Inhibition although the date of the Disposition was before the Inhibition unless it were proven by witnesses insert in the Disposition or others above exception that the blank was so filled up before the Inhibition Jan. 15. 1670. Lady Lucia Hamiltoun contra the Creditors of Monkcastle These blank Bonds are so little favoured that when the Debitor depones that he is only debitor by a Bond blank in the Creditors name which he did deliver to such a party for his own
it did so much appear that the Parliament of purpose had omitted it yet in the said case Greirson contra Closburn upon the 21. of July 1636. they did forbear to intimate their Decision and desired the parties to agree And no Composition was found due by an Adjudger having Charged before the late Act of Parliament December 23. 1669. whereby like Compositions are appointed for Adjudication as for appryzing July 10. 1671. Scot of Thirlestain contra Lord Drumlanrig In which case it was found that the Superiour might refuse to enter the Adjudger if he payed his debt but that he was to have nothing for Composition if he did so in the same way as in appryzing by the old Act of Par. 1469. cap. 36. by which that option is given to the Superiour 49. Craig observeth that it was doubtful in his time whether there were a Legal Reversion competent to any renuncing and afterward returning to Redeem Adjudications or Appryzings wherein he favoureth the affirmative but the said Statute Par. 1621. cap. 7. determineth the case and granteth a legal Reversion in favours of these who have posterior Adjudications within the space of seven years or ten years since the Act of Par. 1661 betwixt Debitor and Creditor which is also competent to any Renuncing in their Minority and being restored against the said Renunciation but it is not competent to any other Heir renuncing yet if the Heir though Major find that he hath prejudged himself by renuncing a profitable Heritage he may grant a Bond and thereupon cause within the legal adjudge and redeem the former Adjudications which though to his own behove will be effectual there being so much equity and favour upon his part being willing to satisfie the whole debts 50. It is clear by the said Statute the Lands or Heretage of a Defunct may be Adjudged the heirs renuncing not only for satisfaction of the Defuncts debt but of the heirs own proper debt 51. Adjudications are taken off and extinguished in the same manner as appryzings are by intrometting with the Mails and Duties of the Lands adjudged as is clear from the said Statute And though cases be not so frequent in Adjudications as in appryzings to clear the other ways of their extinction Yet the reason being the same in both there is no doubt but the determination will also be the same 52. The other manner of Adjudications is for making effectual Dispositions or obliegements to Infeft whereupon when the acquirer hath used all diligence competent in Law against the disponer to fulfil the same by obtaining Decreets and Horning Registrat thereupon either against the Disponer or his Heir Law being there defective and cannot make the Disposition or Obliegement effectual the Lords have allowed Adjudications of the Lands disponed whether in Fee or Liferent July 19. 1611. Lord Johnstoun contra Lord Carmichael Spots hic contra Bruce of Airth And thereupon the Superiour will be discerned to receive the Adjudger as was found in the case of an Obliegement to Infeft a Woman in Liferent holden of the Superiour wherein she having used Horning the Superiour was decerned to receive her July 10. 1628. Harris and Cunningham contra Lindsay Feb. 24. 1675. Marion Hamiltoun contra Mr William Chiefly The like in the case of an Heretable Disposition whereupon the acquirer having obtained Decreeet against the disponers heir for Infefting him and used Horning thereupon The Director of the Chancelary was decerned to Infeft the acquirer Decemb 16 1657 Ross contra Laird of May. This manner of Adjudication is extended no further then to the thing disponed and hath no Reversion It requires no Charge to enter heir or renunciation but the adjudger must instruct his Authors right June 24. 1669. Mr. Dowgal contra Glenurchie These Adjudications do not come in pari passu with other Adjudications within the year nor any other with them July 16. 1675. Campbel of Riddoch contra Stuart of Ardvorlick Decemb. 2. 1676. Lady Frazer contra Creditors of the Lord Frazer and Lady Marr. 53. By the late Act of Pavliament anent adjudications there are introduced two new forms of Adjudications the one special of Lands effeirand to the sum and a fifth part more in case the debitor produce his Rights and put the adjudger in his Possession of his particular Lands adjudged But if he do not adjudications are to proceed as appryzings did generally of all the debitors Lands or real rights periculo petentis redeemable within ten years These Adjudications are come in place of appryzings especially the general adjudications which are declared to be in the same condition in all points as appryzings were by the Act of Par. 1661. cap. 62. Except as to the lengthening of a Reversion from seven to ten years So that what hath been said of Appryzings will have the same effect as to general Adjudications but special Adjudications being equitable and favourable will not meet with such strictness This Statute hath taken away the greatest Reproach upon our Law which for every debt indefinitely appryzed every Estate great or smal which had no excuse but that the debitor might redeem in seven years But all debitors being necessitat to appryze within a year or to have no more then the legal Reversion paying the whole debts the power of Redemption came to be of little effect few being able to pay all their debt in one day But now if any debitor complain that his whole Estate is adjudged and no proportion keeped betwixt the debt and his Estate it is altogether his own fault seing he might offer a proportional part and liberat all the rest of his Estate which part is Redeemable also in five years And though a fifth part be added it is no more then the ordinary penalty being an 100. Pounds for a 1000 Merks and 50. Merks for the Sheriff-fee makes 200. Merks being the fifth part of a 1000. Merks and which was sustained in the most favourable cases of Appryzings from the beginning and the Reversion was for seven years Adjudications being executive Decreet the Lords allow them the greatest dispatch and to prevent Collusion whereby some debitors might be postponed by debate and probation till the year pass which would excludethem Therefore the Lords do not suffer Co-creditors to stop Adjudications that they might see for their entress and put the pursuer to abide the course of the Roll unless they produce an Entress upon which the Ordinar will hear them immediatly without going to the Roll Jan. 22. 1681. Earl of Dundonald contra Dunlop and his Creditors Neither is the Superiour suffered to propone defences Jan. 13. 1675. Kinloch of Gourdie contra Mr. James Blair and James Strachan Yea the Lords sustained the establishment of the debt in the same Lybel with the Adjudication July 26. 1676. Alexander Boyd contra Boyd of Pinkill But if the debitor himself appear the Cause goes to the Roll and if there be prior adjudgers defences proponed against the debt or adjudication
and Infeft the other being equally and Immediately Heir to her Father in these Teinds and mediatly Heir to her Father by being Heir to her Brother who was Heir to his Father being Infeft in the Lands by precept of Clare Constat without Service June 10. 1673. Christian White contra Janet White 16. Other heirs not being Heirs-portioners are lyable for the Defuncts Debt in solidum except heirs substitute in Bands who are only lyable quoad valorem in the sums in these Bonds July 3. 1666. Fleeming contra Fleeming 17. Heirs are not conveenable at the Creditors option as in the case of heirs and Executors but they have the benefit of an order of discussing Thus first Debts and Obliegments relating to any particular Lands or Rights and no other do in the first place affect the heirs who may succeed in these Lands or Rights before the heir general So an Obliegment oblieging the Defuncts heir of Line or Tailzie so soon as he should come to his Estate was found to affect the heir of Tailzie who came to that Estate without discussing the heir of Line Hope de Haeredibus Lyon contra Sir Robert Scot. Nicol. de haereditariis actionibus inter eosdem So an Obliegment oblieging a Debitor and his heirs Male succeeding in such an Estate and not all other heirs was found to burden the heir Male before the heir of Line or Executors July 22. 1662. Margaret Anderson contra Andersons So likewise an Obliegment to infeft a Party in an Annualrent out of Lands designed was found to affect the heir of Provision in these Lands without discussing the heir of Line Nicol ibid. Edmonstoun contra Edmonstoun This was also the opinion of the Lords though there was no decision in it February 19. 1611. Laird of Blair contra Fairlie And in these Cases the heir of Tailzie or Provision will have no Relief against the heir of Line or other nearer heirs of Blood who otherwise and also Executors must be discuss'd before heirs of Provision or Tailzie General Obliegments not relating to particular Lands do first affect the heirs of Line who are heirs general 2. The heirs of Conquest July 21. 1630. Fairlie contra Fairlie 3. Heirs Male must be discuss'd before heirs of Tailzie or Provision not being so near of Blood Hope de haered Dunbar contra Hay of Murkill the like must follow as to heirs of Marriages who are also heirs of Blood and must be discuss'd before other heirs of Provision or Tailzie who therefore are only lyable in the last place the rest being discuss'd unless they become oblieged to relieve the heir of Line November 22. 1665. Lawrence Scot contra Boswel of Auchinleck 18. But an heir of Tailzie was not found to represent the Defunct in Obligations contrary to the terms of the Tailzie as to which heirs of Tailzie are as Creditors and Strangers as when the security of a Sum was by way of Tailzie payable to the Creditor and the heirs of his Body which failing to a Person named his heirs and Assigneys whatsoever the Creditor being oblieged to do no Deed hurtful to the Tailzie and the Debitor oblieged not to pay without the consent of the Person named that Person was found to have Interest to obtain Declarator that the sum was unwarrantably payed by the Debitor without his consent or order of Law by consigning it to be imployed in the same terms and therefore the Debitor was ordained to make up the Security again as at first reserving to Creditors how far they could affect this Sum for the first Fiars Debt or whether the terms of the Tailzie would exclude the Fiars Debts or Deeds for his necessary use or only unnecessary and voluntary Deeds Feb. 3 1674 Drummond contra Drummond And in like manner a Father having granted two Bonds of Provision to his two Daughters payable to them and the heirs of their Body which failing to return to the Father and his heirs the one of them having died without heirs of her Body but having assigned her Bond to her Sister the Assignation was found ineffectual as being done on design to disappoint the Tailzie made by the Father of the return of the Provision in case the Daughters had no Heirs of their Bodies and so was done without any onerous Cause or just Consideration January 31. 1679. Jean Drummond contra Drummond of Rickertoun 19. And likewise heirs of Marriage are heirs of Provision and partly Creditors and therefore may quarrel Deeds fraudulent or meerly gratuitous done by the Defunct whom they represent in prejudice of their Provisions as was found in the forementioned Case of Isobel Baron observed by Craig who being heir of a Marriage to whom all Lands conquest during the Marriage were provided the Father having disponed a Tenement acquired during that Marriage to his eldest Son by another Marriage yet that heir of the Marriage did recover the same from that Son albeit the heir of the Marriage did represent her Father and yet not simply but according to the provision by the Contract of Marriage which being an onerous Contract uberrimae fidei the Father Contracter can do no Deed contrary thereto but upon an onerous Cause or just Consideration and therefore if he sell any thing falling within such Provisions the heir of Provision cannot quarrel that Stranger but is oblieged to fulfil to him but might quarrel the same if it were meerly gratuitous much more might heirs of a Marriage quarrel Deeds prejudicial to their Provision in favours of the Children of other Marriages without which the great trust of these Contracts would be eluded whereupon Parties rely and make Matches and give Tochers and therefore take Provisions to the heirs of the Marriage either of definite Sums or of all or a part that the Contracters have or shall acquire during the Marriage by which the whole Estates of Citizens are ordinarily conveyed or otherwise Contracts of Marriage bear particular Lands or Sums to be provided to the heirs or Bairns of the Marriage and also the conquest during the Marriage which clause of Conquest will reach only to what the Father had more at his Death then the time of the Contract and is ordinary both in the Contracts of Citizens and others which therefore should not be elusory but effectual according to the true meaning of the Parties which is not to bind up the Father that he cannot do Deeds for Causes onerous or rational Considerations but that he can do no other Deeds meerly gratuitous and arbitrary in prejudice of such Provisions for though by such Provisions when fulfilled he himself must become Fiar and so may dispone yet he is also Debitor and so cannot effectually dispone against the import and meaning of the Provision And therefore a Father by his Contract of Marriage having provided certain Tenements to himself and his future Spouse in Conjunct-fee and to the Bairns of the Marriage c. and the Wife having restricted her self to the half of the