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A38878
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An Exact and faithful relation of the process pursued by Dame Margaret Areskine, Lady Castlehaven, relict of the decesed Sir James Foulis of Collingtoun, against Sir James Foulis now of Collingtoun, before the Lords of Council and Session with certain remarks upon the import and extent of protestations for remeed of law in general, and in particular upon the protestation or appeal offered by the Lady.
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1690
(1690)
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Wing E3598; ESTC R25698
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45,312
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65
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the plain Import of an Appeal is to suspend all effect of the Decision or Interloquitor of that Judge from whom the party Appeals yet the Lady thought fit to present a Paper Appealing from the Lords And in her Petition she doth not design the Paper presented by her a Protestation but an Appeal which is repeated in three several places of that Petition Notwithstanding Appeals be expresly prohibited and the Lords of Session Impowered To decide utterly in civil Causes pursued before them without remeed of Appellation to King and Parliament by the 62 Act. 14 Parl. King Jam. 2. And the 39 Act. 5. Parl. Ja 5. And which Acts were not Intended to be Abrogate or Rescinded by any Article in the Claim of Right 2 It cannot be imagined that the Meeting of Estates did intend that a party might freely protest for remeed of Law in every caâ—se without any hazard or inconvenience In case that Proteâ—tation were found not to proceed on just g ounds for the said Article be ng no constitution of any new Right not formerly competent to the Subjects But an assertion and decalaration be measured by our ancient Laws which did allow murmurings and complaints upon just grounds in the same cases Protestations are allowed by that Article as if the Lords should refuse to Minister Justice or if they should not only be Judges but Solisters partial Counsellers Assisters and Partakers with some of the parties and to take Geir and Profite in these cases as Murmurs and Complaints were Lawful be the 26 act 5 par Ja. 3. and 104 Act. Par. 7. Ja. 5. So are Protestations for remeed of Law Or if the Session being a limited Judicatory should proceed to decide in matters not falling under their Jurisdiction As in matters of State and Government or Crimes or sustaine themselves Judges in the first instance in adjudications of Prizes or Divorces As likewayes if the Lords should upon full debate decide and thereafter upon the same grounds formerly represented super iisdem deductis should retract that and make a direct contrary Decision whereby parties would alwayes be uncertaine of their Rights For if they might once retract their Decision on the same grounds they might doe it againe and againe for ever and the great Inconveniency of this was discovered by our Predecessors many ages agoe for eviting whereof by the foresaid 62 Act 14. Par. Ja. 2. All Causes were appointed to be utterly decided by the Lords of Session but any remeed by appellation to King or Parliament because if appeals were once allowed it were impossible to bound the Parliament or terminate any Decision for the Parliament hath alwayes power to rescind any Law that could limite them and make contrary Decisions on the same grounds as oft as they pleased without any Imaginable remeed In all these cases abovementioned Complaints and Protestations are lawful but still with the Caution and Limitation mentioned in out ancient Laws and Acts of Parliament viz That if Murmurs Complaints or Protestations be interposed without Just and Legal Grounds authorized by the Law the Presenters thereof are severely punishable which is most necessary for preserving the Honour and Respect of the Supreme ordinary Iudicature which bears 〈…〉 As this is plain reason upon the one hand so let the Consequence be considered on the other For if such Protestations were allowed to be offered at the pleasure of any Party they would necessarily come to proceed of course and none who have â—he Disadvantage by the Decision will fail to offer a Protestation which doth not cost one Farthing of Charge and whereby there may remain an hope and expectation that one day they may have that Sentence reversed for few men can be so just and equal in their own Concerns as to be easily convinced of the Justice of a Decision which cuts off their Claim or makes them lyable to great Burdens or Debts And that after great loss of Labour Time and Money and of those that can be convinced there are many who will not have the Ingenuity to forbear interposing any Protestation that may support the Interest of their Cause right or wrong 3 Suppose then this Inevitable Consequence that every decreet did containe in the Bosom of it a protestation for rescinding thereof by the King in Parliament with what assurance or quiet could any man enjoy his fortune which at any time had been called in question or might become debatable in any time by past or to come How should any man know to regulate himself in the expence of his Living the education or provision of his Children or in the Management of any of his Affairs For suppose the usual wayes of Inhibition Arreistment or other Diligence upon the grounds of any process had been used and that the Judge ordinary had annulled all upon payment or other ground of Law yet the interposing Protestation would so fetter that party who was once under diligence that to the end of the World he could not dispose upon any part of his Estate heretable or moveable that was at any time under Diligence because if that Sentence of the Lords by which the diligence was found extinct should come to be reduced the diligence would revive And all Acquirers for whatever cause become lyable to restitution and tho' it came never to be reversed yet the possibility thereof would so burdened nor dispose of any part of his Estate for payment of his other Debts 4. It is the aim and Intention of the Law of all Nations Vt aliquis tandem sit finis litium And therefore every Nation hath their several forms of Process to which every party must comply And very often it falls out in every Nation that those who have really and truly material Justice on their part do justly succumb in their Cause for neglect of these Forms for whom the Law provides no remedy but only gives them warning of their danger and tells them Vigilantibus non dormientibus jura subveniunt Other Cases again are so dubious that upon full debate the Judges and Learned Lawyers of every Nation are divided in their Opinions so that the Decisions of most Important Causes are often carried but by one or two Votes tho' it was far otherwayes in this Case Yet it is generally thought every where more secure to rest in the Decision of the most doubtful Case than to leave parties unsettled in their Rights and possessions And oft-times it happens that through the disadvantage of Indistinct and unclear representation of Cases the same Judge may determine otherwayes then he would have done if the Case had been fully and clearly represented And frequently points are mentioned in Debates so overly that they are neither noticed nor regarded by the opposite Advocats nor the Lords at deciding and yet being once mentioned they would be competent in a Review where being Illustrate they might appear more important than all that was debated or under consideration at the time of the Decision
his said Lady to conquesce and aquire any sums of Money Lands or Heretages or to receive payment of sums of Money due to him in that case to imploy the samen in favours of himself and his future Spouse in conjunct fie and lyfrent and the Heirs male to be procreat betwixt them which failing to my Lord his other Heirs who are appointed to succeed him in his other Lands and Heretages There is a process at the Ladies instance against this Lord Collingtoun as representing his Father upon the passive Titles libelling that the defunct did after the Marriage conquesce and acquire the Sum of 260000 Merks and concluds that the defender should be decerned to imploy the same for the Pursuers Lyferent use And urges that conclusion upon the clause of the Contract of Marriage above mentioned containing two separate and distinct obligments The one To take the Lands Heretages and sums of Money to be Conquesced during the Marriage And the other To Imploy all sums of Money due to him whereof he should receive payment during the Marriage likewise to my Ladie 's Lyferent use Whereby it doth appear that my Lady did not intend to rest upon a clause of Conquest in the usual Style but did farther provide for her own security by adjecting the posterior Clause oblidging my Lord to imploy all sums of Money to be received during the Marriage to her liferent use which was most Just and Reasonable seing my Lords condition at the time did not suffer him to secure any present joynture his Estate being affected with many incumbrances it was therefore highly reas nable that what ever sums he should receive during the Marriage should be secured for her liferent use It was answered for the Defender denying the passive Titles 〈…〉 oâ— these Clauses contained in the contract of Marriage unless the Pursuer will condescend upon Lands Heretages sums of Money Conquest during the Marriage and extant unconsumed at the Dissolution thereof Or that the Defunct had received sums of Money due to him the time of the contract of Marriage for as to the Clause of Conquesce There has been no point in our Law more fully and clearly determined than the Import thereof both in relation to Heirs of Provision and Relicts in Contracts of Marriage for the various circumstances of Children or Relicts having the benefit of those Clauses have prompted them upon several Specialities to endeavour the extensions of such Clauses in their Favours upon some pretences of differences from the Cases formerly decided whereby upon consideration of the most important Decisions in that point it will appear that the Lords have scarce ever varied since there were Practicks upon Record anent the import of Clauses of Conquesce which they have ever found to give Relicts or Heirs of Provisions the Benefit of what Conquest did remain unconsumed at the death of the Husband or Father and that such Clauses could not hinder the Acquirer from the full free and unaccountable Administration of his own Estate during his Life and to dispose of his own by any just or rational Deed at his pleasure providing that nothing were done fraudulently for evacuating of such Clauses And farther The Deeds of the Acquirer are not only sustained when the Conquesce is consumed but even when the Conquesce of Lands Heretages or sums of Money is extant at the dissolution of the Matriage the same is affected and burdened with all the Debts of the Acquirer not only for onerous but also for gratuitous Causes there being always a just and rational consideration such as the Provision of Children with suitable Portions and even a Provision of an eldest Son hath been frequently sustained as a paternal Deed and if in any Case gratuitous Debts or Deeds of the Acquirer have been annulled at the instance of Relicts or Children of a Marriage the same has always been upon the head of Fraud or that there was no just cause for making such Deeds and these Deeds are not only sustained in favours of Creditors to affect the Conquesce but they have even been sustained as burdens upon the Conquesce whereby Relicts or Heirs of Provision have no Action against the Representatives of the Acquirer to Disburst the Conquest of these Debts The Decisions in this matter are so numerous and the Cases so various that it were tedious to relate them but the Defender did both in his Debate and by a particular Note a part offer a few of them to the Lords consideration whereby it will appear that the ground of all is one viz. That Conquesce is burdened with all rational Deeds of Administration of the Acquirer As to the second Clause whereby it is pretended that All sums of Money due during the Marriage and received by the Defunct ought to be Imployed for the Pursuers Liferent use It is answered That the Lords are intreated to consider the Clause as it stands in the Contract which is very far from Importing that Sense which is fixed upon it For by the first Clause the Conquesce during the Marriage was designed to be secured in the ordinary Style of Conquesce And by the second all sums due to my Lord before the Marriage were designed to be secured to my Lady and that which was in Prospect was a Debt due upon the Estate of Huntley And my Lord had just ground to expect that the same might have been made effectual to him who was then in great Favour and had suffered much for the King and it was not sit to express the Debt particularly in the Contract least being propaled it might have been affected by his Creditors and as this was the true Communing so it is impossible the words of the Clause can bear another Sense which runs in these Terms viz. He obliged himself in case it should happen him to purchase or acquire sums of Money Lands or Heretages or to receive payment of Debts due to him to imploy c. Whereof the construction of the last Clause is in case he shall happen to receive payment of sums due to him where Sums due must in propriety of Language signify a Preterit that the sums â—â—â—turo was in case it should happen him to receive these sums And the prospect of receiving of sums must alwayes presuppose the sums due And the first end of the Clause relating to Purchase of sums thereafter the natural Alternative subjoyned to that Provision is sums dew already whereby all sums were secured to my Lady whether due before or purchased after the Contract with the legal burden of my Lords full and free Administration during the Marriage And whereas the words of the Clause as the Pursuer would construct them run thus In case it should happen my Lord during the Marriage to receive payment of sums deue even this construction though it be not natural or suitable to the Clause yet it alters not the Case one hairs breadth For in that construction the words during the Marriage which signify