when the adherence is pursued upon the account of malicious desertion only and where there is no question of the Nullity and lawfulness of the Marriage the inferiour Commissars may decide in the samine 3. You are to proceed in rebus levibus not exceeding fourty pounds upon the Pursuers Claim without necessity of a libelled Summons the Defender being alwayes cited at several times by two distinct Warrands and Summons to that purpose And the case foresaid where the subjâ—ct is Leve not exceeding the said sum you are to proceed in manner foresaid whether the Defender be pursued upon his own Deed or representing any other Person his predecessors in rebus levibus and in Cases of the nature foresaid If the Claim be referred to the Defenders Oath and the Defender appear and be content to depone presently you are to take his declaration upon the same And if the Defender desire to see and be advised with the Claim ye shall give him a short time to that purpose If the Claim be referred to the Defenders Oath and he appear not himself he is to be warned again pro tertio and cited personally to give his Oath with certification he shall be holden as confest In such cases of small moment if the Claim be not referred to the Parties Oath nor verified inâ—ranter and the Defender appear you are to give a short time to him if he be conveened upon his own Deed to see the Claim and answer verbo And if he be conveened as representing any other person as Executor or Intrometter or otherways you shall assign a time to the Defender to qualifie and give in his Defenses in Writ 4. In Causes of greater moment exceeding fourty pounds and in Arduis wherein there may be difficulty you are to proceed upon a Libelled Summons in the same manner as is prescribed in the Cases above-mentioned except only that at your discretion you may assign a longer time to the Defender to give his Oath if the Libel be referred thereto and to answer verboâ— or to qualifie and give in his Defenses in writ when the Libel is to be proven otherwise and the Defender is conveened either as representing another person or difficulty or importance of the case doth require that the Dispute shall be in Writ 5. You shall be careful that your Clerks shall have and keep on Book for all the ordinary Dyets and Acts and also another Book foâ— Acts of Litiscontestation either made in absence or parte comparente wherein it shall be set down as shortly as can be the substance of the Libels and Alleadgences Interlocutors and Litiscontestations thereupon which Record shall be sufficient without necessity either for extracting the same or of Registration or extracting an Act of Litiscontestation ad longum except either of the Parties shall desire an Act to be extracted ad longum upon the Parties Charges who shall desire the same 6. Your Clerk shall keep a Register of Decreets of whatsoever nature but so that in cases of small moment within fourty pounds the said Decreet shall be recorded as shortly as can be 7. If in any Process whatsomever the time of Litiscontestation or after the Interlocutor is pronounced and when either a Term is assigned for proving the Libel or any alleadgance or the Judge having pronounced Interlocutor verbo or a Signature being made in Writ is about to assign a Term the Defender shall pass from his compearance or any time thereafter post Litiscontestationem Nevertheless Litiscontestation in all such Processes shall be holden and esteemed to be made parte comparente And in like manner if the Defender at Sentence shall pass from his compearance the Sentence nevertheless shall be given out against the saids Defenders as compearing 8. Ye shall be careful that your Summons be execute alwayes by a sufficient man before two Witnesses at least And that the same being returned and indorsed be keeped by the Clerk in case the execution be questioned and that ye are not to stay the proceeding of the principal Cause upon offer of Improbation of the execution and if any execution shall be found false and Improven and if it shall be found that any of your Advocats Procurators or their Servants or Agents or other Persons having interest in your Courts have written or caused write the saids executions or has used the same and knowing them to be false or are otherwayes accessory to the said folshood they shall be declared uncapable of any Office Trust Interest or Practice within the said Court without prejudice of such further Censure and punishment as may be inflicted for the Crime of falshood and upon the contriver or user or false Writs 9. Ye shall direct Precepts for Summoning of Witnesses to compear before you to be Witnesses in Causes under such pecunial pains as ye shall think expedient according to the value of the Causes and quality of the Person that bees Summoned And if the Witnesses contemptuously disobey the fines and mulcts to be uplifted by your Officers and they to have power to poind for the samine And the pains shall be applyed the one half for your own use and the other half to the poor And if the Witnesses compear not for the first Summons the Party to have Summons against the Witnesses not compearing under greater pecunial pains to be applyed at your discretion or to raise Letters upon deliverance of the Lords of Session for compelling them to compear under the pain of Horning as you shall think expedient At the examination of Witnesses your selves shall not fail to be present excluding all others 10. You shall suffer none of the Advocats in their procuring to use frivolous Alleadgances and if they do sharply to reprove them therefore and in case of not amending for reproof to proceed to pecunial pains and if they persist to deprive them 11. In the advising of Processes ye are not the use the advice of any Procurator or Advocat or consult with them thereanent neither admit of them to be present at the advising of the same 12. Ye shall tax the expenses of all pleas of Causes where Sentence is obtained before you and that right highly And shall insert the same in the principal Decreet or Sentence And the Precept to be directed out for executing of the Sentence shall contain Poinding as well for the saids expenses as for the principal 13. Ye may direct your Precepts to Officers of your Commissariot or Officers of Arms or to the Officers of Provost Bailzies of Burghs at the desire and option of the Party If any Person shall deforce your Officers in execution of your Precepts ye may be Judges to all such Deforcements and inflict the like pains as by the Law may be inflicted for deforcing of Officers of Arms excepting only the loss of Deforcers their Escheat Without prejudice to the Person concerned to pursue for the same upon the Deforcement of your Officers before the competent Judge 14. If any
these Rights proceeding against him as appearand Heir to these predecessors and now assigned to him because there were other appearand Heirs specially condescended on nearer of Blood The Pursuer answered non Relevat to take away his Infeftment which behoved to be Reduced Secondly Non competit to the Defenders unless these nearer appearand Heirs were compearing for their Interest The Defender Replyed that the Infeftments having obtained no Possession and having proceeded only upon a Charge to Enter Heir against the Pursuer by Collusion It was competent by Exception seing there was no Service nor Possession nor any thing done that the nearer Heirs were oblidged to know and it was also competent to the Defenders not to deliver the Writs to any having no Right thereto they being lyable to deliver them to the nearest Heir of the true owner The Lords Repelled this Defense against the Exhibition reserving it to the Delivery in which they found it competent to the nearer appearing Heirs without Reduction Rentoun of Lamertoun contra Earl of Levin and Alexander Kennedy July 11. 1662. JOhn Rentoun of Lamertoun as Heir to his Father having charged the Deceast Earl of Levin for the Sum of due by him to umquhil Lamertoun The Earl suspended upon Compensation by six Bonds granted by umquhil Lamertoun to the umquhil Countess of Levin four of them to her self and after her Decease to her Daughters and two of them blank in the Creditors name which being done stante Matrimonio by this Lady did belong to her Husband jure mariti and not to her or his Daughters These Bonds were produced out of the hands of Alexander Kennedy sometime Master Porter of the Castle of Edinburgh who declared that he had the foresaid six Bonds in Trust from the umquhil Countess and the Laird of Lamertoun in Anno 1649. Levin being then Captain of the Castle of Edinburgh Lambertoun Constable and the said Alexander Porter and produced a Paper of Trust subscribed by Lambertoun and my Lady bearing that the Bonds were put in Alexander 's hands as a faithful Person whom both Trusted to be keeped till after the Ladyes Death and then delivered according to her direction against which Writes Lambertoun raised Improbation and Alexander Kennedy abode by the same and the Earl of Levin declared he made use of them upon the ground foresaid in his Improbation The six Bonds being written by Alexander Kennedy and Iames Rule who is dead and the Witnesses being George Watson Spittel and Young and in some of them Alexander himself all being dead but Alexander the Producer the direct manner of Improbation thereof ceassed and therefore they proceed to the indirect manner and give in many Articles of Improbation and the Earles Articles of Probation The Relevancy of which being Dispute to quadruplyes in Write and all Persons that either Parties desired being examined hinc inde and their Testimonies published to either Party and they having thereupon Dispute both as to the Relevancy and Probation in Write and being heard at last viva voce The Lords proceeded to Advise the Cause The weight of the whole matter lay in these Particulars mainly First For astriction of the Writs the said Paper of Trust holding in it two living Witnesses and one dead being true the Bonds related therein could not be false This Paper could not be Improven indirectly because the direct manner was competent by two living Witnesses whereof the one Deponed that the Subscription was like his Subscription as he Subscribed at that time being young and the third Witness being dead proves It was answered that the Witnesses insert proved not because comparatione literarum Crawford the Defunct's Subscription was altogether unlike his true Subscription produced Learmont sayes his Subscription was only like his and though Kill sayes it was his Subscription yet none of them Depones to have seen it Subscribed by any Body or by any Witness nor to know any thing of the time place or truth of the matter contained in the Writs being but an Evidence to keep the Witnesses in remembrance either of the Matter or of the Subscription of the Principal or themselves albeit they need not be proven here as in England by the Witnesses insert Yet in the case of Improbation if the Witnesses prove nothing of the Fact or Subscription as remembring that they or the Party Subscribed but only Deponing that it is their Subscription which can import no more of certain knowledge then that it is like their Subscription seeing none can swear that it may not be feigned so like that they cannot know it and albeit that would be sufficient where nothing is in the contrair Yet where there is strong presumption in the contrair as the Writ not being in the Parties hands but in the hand of a third Party malae famae and who hath at least betrayed his Trust never having made these Bonds known till six or seven years after the Countess of Levins Death and then offering to sell some of them to others and with all the Paper of Trust the Body thereof being written with one hand and the filling up of the Witnesses with another which no body hath or can condescend upon nor are Designed therein so the same being null by Act of Parliament cannot sufficiently astruct the truth of the other Bonds being in themselves suspect The Lords found the Paper of Trust not sufficiently to astruct nor the Testimonies not to prove it sufficient in respect of the grounds foresaid being instructed and the many presumptions against these Writs Therefore they improved the said pretended Paper of Trust. There was further produced for astructing the Bonds two Holographs alleadged Written and Subscribed by Lamertouns owns hand relative to the Bonds and Trust and for proving these were Holograph they produced a Holograph Accompt Book of Lambertouns and six Witnesses of whom three or four were without exception and the whole Deponed that they truly believed that the Holographs were Lamertouns hand and Lambertoun and the Lady Levins Subscriptions The question then was whether these Papers were so proven to be Holograph that they did sufficiently astrict the Bonds notwithstanding all the grounds instructed against them The Lords found Negative upon this consideration that when the Probation of Holograph is by Witness who saw the Holograph Writ Written and Subscribed albeit they be not instruct it is a full probation admitting no contrary probation but when it is only comparatione literarum or by Witnesses Deponing that they believe or that positively it is the hand writ of the Party that can import no more but that it is so like that it is undecernable for no man who saw it not written can positively swear with knowledge that it is impossible to fenzie the hand so like that it is undecernable and therefore holograph so proven admits a stronger contrary Probation and therefore the Lords found that the Evidents against the Bonds were stronger nor this Probation of holograph There was
contribution money payable to them And such other General Letters as are expresly warranted be the Acts of Parliament And ordains an Act to be extracted hereupon and insert in the Books of Sederunt ACT for keeping the Barrs Iune 22. 1665. THE Lords considering what great confusion and disorder is occasioned by the thronging of people of all sorts within the Barrs of the Inner and utter House in the morning before the Lords sit down and at twelve a clocke in the forenoon and the prejudice arising there through by the miscarrying of Processes For remeid whereof the Lords do hereby discharge the Macers in time coming to give access to whatsomever Persons of whatsoever quality within the Barr of the Inner-house after any of the saids Lords have entred the House in the morning or after twelve a clock till the Lords be all risen off the Bench and be removed out of the House And sicklike that they permit no person whatsoever to stay within the Innermost-barr of the Utter-house where the ordinary Lord and Clerks do abide neither before the ordinary Lord come out after that the Clerks and their Servants have begun to call nor during the time that the ordinary Lord is upon the Bench neither after untill the reading of the Minut Book be ended except the persons following viz. The keeper of the Minut Book the King's Solliciter and one Servant appointed by His Majestie 's Advocat And that person appointed for reading the Minut Book during the time of the reading of the Minut Book and no longer And the Macers are hereby authorized to carrie immediately to prison any person that shal be found within any of the saids Barrs during the time foresaidâ— Certifying the saids Macers that if any of them shal be found negligent in performance of their dutie in the premisses They shall forthwith be removed from their Office And ordains an Act to be extended hereupon ACT anent Pro-tutors Iune 10. 1665. FOrasmuch as in the Action of compt and reckoning depending at the instance of Robert and Bessie Swintouns against Iames Notman at length heard before the Lords of Council and Session It being questioned and debated how far a Pro-tutor is lyable by the Law and Practice of this Kingdom whether for ommission as well as for commission and intromission And the saids Lords considering That albeit Pro-tutors be excusable as to their bygon intromissions In regard it was not constant hitherto how far they could be lyable yet finding it expedient that the foresaid question should be determined as to the future and the Leiges no longer left in uncertainty thereanent Therefore the Lords declare that whatsoever person or persons shall in time coming intromet with the means and estate of any Minor and shall act in his affairs as Pro-tutors having no right of Tutory nor Curatorie established in their Persons They shall be lyable aswell for what they might have intrometted with if they had been Tutors and Curators as for what they shall intromet with de facto Sicklike and in the same manner as Tutors and Curators are lyable by the Law and Practice of this Kingdom And the Lords declare that they will observe this as an inviolable practice in time coming And ordain these presents to be published at the Mercat Cross of Edinburgh and an Act to be extended thereupon and insert in the Books of Sederunt ACT ordering no sight of Processes in the Summer Session which were seen in the Winter before November 8. 1665. THE Lords considering That through the shortness of the Summer Session unnecessary giving out and malicious detaining of Processes which have been seen the Winter Session immediately preceeding The Leiges are oftimes frustrate of Justice during that Session after much charges expenses time vexation and trouble And having it always in their thought how Justice may be speedily administrat with the greatest ease and least expenses to the Subjects Do declare that in the future they will not allow Defenders and their Procurators to see Processes in communi forma during the Summer Session where the same has been seen and returned by them the Winter Session immediately preceeding and that they will proceed to do Justice therein without indulging to defenders any such sight during the Summer Sessions in the future where there hath been no material amendments made be the Pursuers of their Summonds nor new pieces produced in the Process to be instructions and grounds thereof and which were not seen the Winter Session immediately preceeding And ordains these presents to be insert in the Books of Sederunt His Majesties Instructions to the Commissars February 20. 1666. THE Lord President having received the Instructions following from Iohn Earl of Rothes His Majesties High Commissioner did communicat the same to the hail Lords and that it was His Graces pleasure and desire that the same might be recorded in the Books of Sederunt The Lords of Council and Session ordained the saids Injunctions to be insert and recorded in the saids Books of Sederunt under Protestation always that the recording of there saids Injunctions should be no ways prejudicial to the priviledge of the Lords of Session or derogat in any sort from their Iurisdiction in civil causes And ordained the said Injuctions after recording thereof to be given up and delivered to the Archbishop of St. Andrews his Grace or to any having his warrand to receive the same And that the Extracts of the saids Injunctions be given to all Persons who shal conceive themselves concerned therein whereof the tenor follows Sic Supra Scribitur CHARLES R. HIS Majesty Authorizes and injoyns these following Instructions contained in five Leaves Attested and Subscribed by two of the late Commissars of Edinburgh for regulating the Proceedings of the Commissars in their respective Courts Oxford January 21. 1666. and of His Reign the seventeenth year By his Majesties Command Sic Subscribitur LAVDERDAIL INstructions and Rules set down and appointed by the Reverend Fathers Arch-bishops and Bishops in this Kingdom to the Commissars Clerks Procurator-fiscals and other Members of Court of the Whole Ecclesiastical Jurisdiction having Commission from the saids Reverend Fathers 1. Ye are by vertue of your Commission to decide and judge in Causes concerning Benefices and Teinds in matters of Scandal Confirmations of Testaments great and small within your bounds all Causes Testamentar and in all other matters wherein the Oath of Party is required if the same does not exceed fourty pounds And in all other Causes wherein the Parties submit themselves to your Jurisdictions 2. Ye are to Judge in Reductions and Declarators of Nullity of Marriage for Impotency or upon any other ground or reason whatsomever All actions of Divorcement for Adultery or upon any other ground All Actions or Questions of Bastardry and adherences when the samine shall have a connexion with the Lawfulness of Marriage or Adultery all which are reserved to the Commissars of Edinburgh and do belong to their Jurisdiction privative But
Testamentar shall not be desired to be Confirmed ye shall Confirm the nearest of Kin desiring to be Confirmed And if the nearest of Kin shall not desire to be Confirmed ye shall Confirm such of the Creditors as desire to be Confirmed as Creditors they instructing their Debts And ifâ— neither nearest of Kin Executor nor Creditor shall desire to be Confirmed you shall Confirm the Legators such of them as desire to be Confirmed and instruct that they are Legators And if no other person having interest foresaid shall Confirmâ— you shall Confirm your Procurator-fiscal datives alwayes being duly given thereto before And if after the saids datives but before Confirmation any Person having Interest shall desire to be Surrogat in place of the Procurator-fiscal ye shall Confirm them as Executors Surrogat in place of the Procurator-fiscal And to the effect the Debts may be the better known ye shall call within your Jurisdictions the Intrometters with the Defuncts Goods and Geir Datives being given up as said is to give up Inventar thereof And in case the Intrometters will not compear to the effect foresaid Then ye shall cause Summond four or five of the Defuncts nearest neighbours and others who best knew the samineâ— who being sworn shall give up Inventar of the Dead's Goods and declare the quantity thereof under what division the samine comes and the expense to be made thereupon shall be modified yearly at the making of the Accompts That every one of you have a Procurator-fiscal who shall be an honest discreet man and responsal for pursuing all common actions and who shall be decerned Executor dative to all the Defuncts within your Jurisdiction where he serves in case the nearest of Kine of the Dead nor any other nominat Executor Confirm not his Testament in due time And ilk Procurator-fiscal shall find Caution that the Goods he shall happen to intromet with shall be forthcoming as effeirs and shall make Compt yearly and payment of the saids Goods that shall happen to be intrometted with by him to the Arch-bishop or Bishop and shall have three shilling for ilk pound that he brings in and makes payment of The Procurator-fiscals shall be holden to Compt twice in the year for the diligence to be done by them in taking up the names of all the Defunct Persons within the whole Parochs of your respective Commissariots wherein they shall be faithful And if it shall be found that they have exacted Money from the People or oppressed them or transacted with such Persons as shall happen to be charged to Confirm and shall receive Money from them to pass from the saids charges or for Money or good deed shall forbear to cause charge any such person who ought to be charged Any such Procurator-fiscal so doing the samine being sufficiently proven shall be deprived from his Office That all Persons named or to be named Executors to any Defunct shall Confirm their Testaments within three Moneths after the Defunct's death at farthest If any person shall be decerned Executor to a Defunct when he compears not personally by reason of sickness or upon any other reasonable occasion and craves a commission to take the Executors Oath Ye shall not grant any Commission for that effect without the Ministers Testificat of the Parties inability and knowledge and consent of the Arch-bishop and Bishop When an Edict is execute to a day and the Party compear and desire to be decerned Executor and crave a day to give up Inventary and Confirm ye shall continue the decerning of the Party as Executor until the day that he should Confirm to the end all may be done Simul semel You shall not suffer Testaments to have Faith or any thing contained in them without Confirmation ye shall not suffer an eâ—k of Testaments to be made exceedingâ— the third of the Inventary and that but once without knowledge of the Arch-bishop or Bishop That the Inventar be likewise given up as they were the time of the Defuncts decease And twelve pennies of every pound of the Deads part shall be the Quot of all Testaments both great and small which shall be Confirmed as well of the Testaments dative as others And the mitigation and composition of the samine Quot shall appertain to the Arch-bishop or Bishop to whom it belongs alanerly if need beis Institutions to the Clerk YE shall have two Register Books one for the Acts and Sentences and another for the Testaments Which Book of the Testaments shall be marked by the hand of the Arch-bishops or Bishops or Bishops Clerk and when the samine are filled up to receive a new Book besides your Book of Registration Ye are all of you both Commissars Clerks and Fiscalls to serve the Leidges thankfully at the Rates and Prices which are to be settled by the Arch-bishops and Bishops We have considered the abovementioned Instructions contained in these five preceeding Leaves And to conceive that it is fit that the same be Authorized and injoyned for Regulating the Proceedings of the Commissars in their respective Courts Sic Subscribitur IO. NISBIT IO. BAIRD ACT against Decreets for not Reproduction of câ—ssiones bonorum November 6. 1666. THe Lords considering the great abuse lately crept in under the colour of the Act ordering Decreets for not Reproduction of Process to extract Decreets of Bonorum which was never the Lords meaning to extend the foresaid Act to any Summons of Bonorum Therefore the saids Lords for Rectification of the foresaid abuse discharge the granting of any Decreets for not Production in time coming in so far as relates to Actions of Bonorum at the Instance of any Debitor against his Creditors But ordain the Pursuer to complain to the Lords in presentia in communi forma for keeping up of Processes of that Nature and discharge the Lord Ordinary in the Outter-house to decern in any such Causes but that they be all Advised and Decerned in presentia His Majesties Letter to the Lords concerning Prizes Ianuary 3. 1667. Follows the Tenor of the Letter Superscribed thus CHARLES R. RIght Trusty and Right well beloved Cusing and Councellour Right Trusty and well beloved Councellours and Trusty and well beloved We Greet you well we have been often troubled with Complaints from strangers in Amity with Vs and others concerning the Prizes taken by Our private men of War in that Our Kingdom and Sentences pronounced by Our High Court of Admirality there and whereas We understand that ye by Our Law are Authorized to be Supream Iudges in all these cases We do hereby Require and Authorize you to think and conclude on such Orders as shall be necessary for bringing before you and Deciding all these Causes in a Summar way and that ye proceed with all expedition in respect the Persons concerned are for the most part Strangers And their Ships and Goods being apt to perish their prejudice may be irreparable if they have not Summar Iustice. And We do most particularly recommend
are grantted where the persons live at a great distance and the matter is of Small moment By granting of which Commissions the Petitioners are frustrate of the Dues payable to them in case the Parties and Witnesses did come here and Depone before the Lords and therefore craving that they might have their Dues for Parties and Witnesses where they are Examined by Commission which being taken to consideration by the saids Lords they Ordain that in time coming where Commissions shall be granted by the Lords for Examining Parties or Witnesses that the Macers shall have the half of the Dues which are payed to them when Parties and Witnesses do compear before the Lords and Depone viz. twelve shilling scots for ilk Party to be Examined by Commission to be payed in manner following viz. where a Commission is granted for taking a Parties Oath that the Dues be payed to Francis Scot Keeper of the Minut-book within fourty eight hours after the Commission shall be put up in the Minut-book and in case the same be not payed within that space that the Commission shall be delet out of the Minut-book and not Extracted until the same be put up again and the Dues payed and that the saids Dues for Witnesses be payed at the return of the Report and Commission before an avisandum be put up thereof in the Minut-book And to the end the number of the Witnesses may be known that the Person to whom the Commission is granted shall set down upon the back of the Commission or Report a list subscribed by him of the Witnesses names and the Clerks are hereby Ordered to insert in the Commission a Warrant to the Commissioner to transmit that list with the Report of the Comission and that Francis Scot attest under his hand that payment is made to him of the saids Dues before an avisandum be put up of the Report in the Minute-Book ACT anent Seasins and Reversions of Lands within Burgh February 22. 1681. THE Lords of Council and Session considering that the Act of Parliament 1617. anent the Registration of Seasins and Revâ—rsions of all Lands and Annualrents there is an exception of Land and Annualrents lying within Burgh and within the Burgage Lands of Royall Burrows which is supposed to have been upon account of the Books of the Town Clerks of Royal Burrows wherein the Seasins and Reversions of such Lands might be found Nevertheless the Lords finds that not only Seasins within Burgh are sometimes omittâ—d and not found insert in the Town Clerk Books But that frequently Reversions of Tenements and Annualrents within Burgh and Assignations to and Discharges of Reversions and Bonds for granting such Reversions are not to be found in the saids Books to the great detriment of the Leidges and especially of the Inhabitants of the saids Royal Burrows For Remeid whereof the Lords do appoint and ordain the Magistrates of Royal Burrows and their Successours in Office to take good Caution and Surety of their Town Clerks that now are or shall be in Office that they insert in their Books all Seasins of Lands Tenements and Annualrents within their respective Burghs or Burrow-lands and of all Reversions Bonds for granting Reversions Assignations to and Discharges of Reversions Renounciations and grants of Redemption of any Tenements or Annualrents within their Burghs or Burgage Lands that shall be given at any time hereafter within the space of threscore dayes from the dates thereof respective in like manner as is prescribed by Act of Parliament anent the Registration of Seasins or Reversions of Lands without Burgh and that the said Surety be under the pain of the damnage that shall befall to any Party through the Latency of the saids Writes which shall be past by the saids Clerks or presented to them to be insert in their saids Books Likeas the Lords ordains the saids Magistrates to insert an Act hereupon in their Town Court Books and to cause publish the same by Tuck of Drum that none pretend ignorance And further the Lords do Declare that if any Party shall neglect to insert their Seasins Reversions Bonds for granting of Reversions Assignations to and Discharges of Reversions Renounciations and grants of Redemption in manner foresaid that the Lords will hold and repute them as latent and fraudulent Deeds keeped up of design to deceive and prejudge the Purchasers of Tenements and Annualrents within Burgh bona fide for just and onerous Causes and ordains the Provost of Edinburgh to intimate this Act to the Commissioners of the Royal Burrows at the next Convention of Burrows And ordains thir Presents to be Printed and Published at the Mercat Cross of Edinburgh and other places needful CERTAIN DECISIONS Of several Debates Intented and Debated BEFORE THE LORDS OF COUNCIL SESSION IN Some Weighty and Important Affairs brought before them Beginning the 29. of June 1661. and ending in July 1681. Iames Talzifer contra Maxtoun and Cunninghame Iune 29. 1661. IOHN KER Merchant in Edinburgh having an Wodset-Right of some Tenements in Edinburgh William Clerk his Creditor Comprized the Wodset-Right from him and obtained Decreet of Removing against the Tennents of the Tenements Iames Tailzifer having Right to the Reversion of the said Wodset consigned the Sum for which the Wodset was granted in the hands of the Clerk of the Bills and thereupon obtained a Suspension of the Decreet of Removing and thereafter having obtained Right from William Clerk to his Appryzing did by Supplication desire the sum Consigned by him to be given up to himself 1. Because the Consignation was not orderly made conform to the Reversion And 2. Though it had been orderly yet before Declarator he might pass from the Consignation and take up his Money whereby the Wodset Right wouâ—d remain unprejudged 3. The Wodset-Right being now returned to himself by acquiring Clerks Appryzing he had thereby Right to the sum Consigned for Redemption of the Wodset Compearance was made for Maxtoun and Cunningham for whom it was alledged that the consigned Sum ought to be give up to them because before William Clerks Appryzing they and William Clerk had joyntly obtained from the King a Gift of the Escheat and Liferent of the said Iohn Ker who had been year and day at the Horn before Welliam Clerk Appryzed from him so that the sum Consigned being now moveable fell under Kers Eâ—cheaâ— and thereby they have Râ—ght to two third parts thereof and Clerk or Tailzifer by his Right can only have the other third and if the Sum were not â—ound to fall under Kers Eâ—cheat the Annualrent thereof during Kâ—rs 〈◊〉 would fall to the three Donators of his Liferent equally and the â—um ought to be given out in security to them for their Liferent and to Tailzifer as having Right to Clerks Appryzing in Fee except the third thereto Clerk had Right as joynt Donator with them neither could Tailzifer pass from his Confignation seeing thâ—y accepted thereof nor could he object against any informality in the
Intimat before the Chargers Intimation because the Assignation only doth not Constitute the Suspenders Creditor or the Cedent Debitor until it be Intimat and so there being no debiium and Creditum before the Intimation there can be no Compensation which is contributio debiti crediti The Suspender answered that the Assignation Constitute the Right and the creditum but the Intimation was only necessar in case of Competition of other Assigneys and he needed not Intimat to Scot quia intus habet in respect Scot was owing him as much The Lords found no Compensation unless the Suspender had Intimat his Assignation to the Cedent and so had Constitute him his Debitor before the Cedent was denuded by the Chargers Assignation and Intimation Children of Netherlie contra The Heir Ianuary 24. 1663. THe Children of umquhil Edgar of Netherlie alleadging that their Father left to his Heir a competent Estate and that he dyed before any Provision or Aliment appointed to them and that the Heirs Tutor refused to Aliment them Their Mother being also dead therefore craved an Aliment to be modified there being no compearence in the contrair The Lords found the Brother as being Heir to the Father of a competent Estate lyable to Aliment the Children being wholly unprovided but determined neither the time nor the quantity till the Condition of the Estate were Instructed Bain contra Laird of Streichan Eodem die THe Laird of Streichan being pursued by Bain proponed a Reason of Compensation and produced a Writ for instructing thereof being called at the advising of the Cause The Lords suffered him to Reform the Alleadgence seing he instructed it instantly by another Writ then was formerly produced Sydeserf of Ruchlaw contra Wood. Eodem die THere being mutual Contraventions betwixt Ruchlaw and Wood both relating to a peace of Ground upon the Marches of their Lands which Ruchlaw alleadged to be his Property and that Wood had contraveened by needful Pasturage thereon himself being present when he was desired to remove his Goods off the same and the other alleadging Commonty and that Ruchlaw had contraveened by wilful debarring him from his Commonty The Lords before Answer granted Commission to Examine Witnesses hinc inde concerning their Possession of Property and Commonty and having advised the Testimonies found that the Matter was not so clear as to be the ground of a Contravention and therefore assoilzied both Parties but declared it should be free to them both or either of them to turn their Libel into a Molestation and to reform the same accordingly thereanent They granted again Commission before answer to Examine Witnesses hinc inde anent eithers Possession and the indurance thereof which was not cleared by the former Commission Robert Grahame contra Iohn Rosse Eodem die IN a Competition betwixt Grahame and Rosse and a third Party all Compryzers the posterior Appryzers craving to come in pari passu by vertue of the late Act of Parliament It was alleadged for Grahame who had obtained Infeftment that he ought to be preferred because albeit his Appryzing was since Ianuary 1652. yet he had been in Possession thereby seven years and so had the benefit of a Possessory Judgement This was Repelled because the Act of Parliament was but late before which there could be no ground to come in pari passu and there was no exception in it of these who had Possessed or not Possest before the Act. Secondly Grahame further alleadged that he ought to be preferred because he was Infeft in an Annualrent out of the Lands which is a real Right excepted by the Act of Parliament Thirdly That Rosse could not come in because Rosses Appryzing was before 1652. and the Act of Parliament brings in only Appryzing since December 1652. Fourthly None of the Parties could come in with him until first they payed him their proportionable part of the Composition and Expenses bestowed out by him conform to the Act. The Lords found that albeit Grahames Appryzing was not upon the Infeftment of Annualrent but upon the personal obliegement for the Principal and bygone Annualrents upon Requisitions which was a passing from the Infeftment of Annualrent yet that he might pro loco tempore pass from his Appryzing and might be preferred to his bygone Annualrents upon his Infeftment of Annualrent in this Case of Composition albeit there was yet no Appryzing upon the Infeftment of Annualrent and found that Iohn Rosses Appryzing before 1652. was not excluded but behoved to be in the same Case as if it had been after But found that the other Appryzers before they came in behoved to satisfie the Composition proportionally by the Tenor of the Act. Sir Robert Montgomerie of Skelmarlie contra Iohn Broun Ianuary 28. 1663. SIr Robert Montgomery pursues Iohn Broun for perfecting a Bargain agreed upon in word betwixt them where Sir Robâ—rt was to Dispone the Right of an Appryzing of the Lands of Fordel for which John was to pay 10000. merks After which verbal agreement Iohn Broun write a Letter to Sir Robert in relation to the Bargain bearing that he was affrayed not to get the Money at the time agreed upon and then bearing the said words all I can say now is I am not to pass from what was spoken betwixt you and me The Defender alleadged that this being a Communing in word anent an Heretable Right est locus penetentiae there being yet neither Minute Disposition or other Security Subscribed And as to the Letter it was not to be respected because it was no Minute and mentionated that the Writer was not fully resolved that he would be able to provide the Money and keep the Bargain as for the Word Signifying that he would not pass therefrom it did but express his present resolution and was not Obligatory and though they were so long as Sir Robert might resile notwithstanding of the Letter John Broun might also resile It was answered for the Pursuer that his Libel stood most Relevant because there is only locus penitentiae when there is no Writ but if any Party obliege himself to stand to a former Communing his own voluntar Deed has unquestionably oblieged him unless the other did resile and the Obligation is as valid in a missive Letter as the most solemn Bond Neither are words I am not to pass to be interpret to signifie a Resolution but being in materia obligatoria must signifie an Obligation otherwise all Minuts must be void and are ordinarly expressed in such Terms as are to do or shall do such things and whereas there was several Practicques produced finding locum penitentiae in such Cases though they were Earnest and though there were Possession and a Letter whereby the Resiler designed another Party by the Lands Disponed yet there was no Obligation in Writ as in this Letter and likewise Iohn Brown payed 3000. merks of the price albeit he took a Bond of borrowed Money till things were perfected and got the Keys of
with the Kings Advocats concurse The Defender answered that the Advocats concurse was but ex stilo curiae and he could make no concurse sufficient for any Improbation and Reduction without the Kings special order The Lords found the Defense Relevant and Assoilzied at which time it was remembred that Sir Thomas Hope insisting in an Improbation of his Good-son the same was not Sustained because it wanted the Kings expresse Order Town of Cowper contra Town of Kinnothy Eodem die THe Town of Cowper having Charged the Town of Kinnothy to desist from Merchant Trade They Suspend and alleadge that they have the Priviledge of Burgh of Barony in keeping Hostlers and selling Wine The Charger answered that selling of Wine is one of their chiefest and expresse Priviledges The Lords considering that this dipped upon the Controversie betwixt Burgh Royal and Burgh of Barony which has remained undecided these thirty years would not Discusse this particular but found the Letters orderly proceeded in general ay and while the Defenders found Caution to desist from Merchant Trade without determining how far that reached Moffet contra Black Eodem die THere being a Bargain betwixt the said Moffet and Black for some Packs of Plaids by which it was agreed that the buyer for satisfaction of the price should give Assignation to certain Bonds exprest but there was no mention what Warrandice At the Discussing of the Cause the Seller craved absolute Warrandice and alleadged that seing it was not Communed that it should be a restricted Warrandice it behoved to be an Absolute being for a Cause onerous and for the price of the Goods 2ly Seing the Agreement required an Assignation in Writ to Bonds the Buyer might re integra resile seing neither the Plaids nor Bonds were Delivered The Lords found that thē Buyer who insisted behoved either to give absolute Warrandice that the Bond was not only due but should be effectual and the Creditor solvendo otherways they suffered the Seller to Resile especially seing the Bargain was not made first by words Absolute for such a price and afterwards that it had been agreed to give such Bonds for that price In which case the Bargain though verbal would have stood Alexander Falconer contra Mr. Iohn Dowgal Eodem die ALexander Falconer pursues Mr. Iohn Dowgal for payment of 1000. merks left in Legacy by umquhil Iohn Dowgal by a special Legacy of a Bond adebted by the Earl of Murray whereupon he conveens the Earl as Debitor and Mr. Iohn Dowgal as Executor for his Interest to pay the special Legacy The Exceutor alleadged that the sum belonged to him because he had Assignation thereto from the Defunct before the Legacy The Pursuer Answered that hoc dato there was sufficiency of Free-goods to make up this Legacy and albeit it had been legatum rei alienae yet being done by the Testator scienter who cannot be presumed to be ignorant of his own Assignation lately made before it must be satisfied out of the rest of the Free-Goods Which the Lords found Relevant Duke and Dutches of Hamiltoun contra Scots Eodem die DUke and Dutches of Hamiltoun being Charged for payment of a Sum due to umquhil Sir William Scot of Clerkingtoun and assigned by him to his four Children alleadged that by Act of Parliament Commission was granted for deducing so much of his Creditors Annualrents as should be found just not exceeding eight years and therefore there could be no Sentence against him as to that till the Commission had decyded The Pursuers answered that these Annualrents were not due for the years during the time the Duke was Forefault by the English which ended in Anno. 1656. and they insist but for the Annualrents since that year It 's answered for the Duke that albeit he had payed many of these years Annualrents by force of Law then standing yet that could not hinder the Deduction but that he would have Repetition or Deduction in subsequent years The Pursuers alleadged he behoved to seek the Heir for Repetition and could not deduce from them The Lords in respect of the Commission would not Decide nor Discuss the Alleadgence anent the years Annualrent but Superceeded to give Answer till the Commission had determined even till seven years after the Forefaulture to make up these that was payed before In this Process compearence was made for Sir Laurence Scot the Heir and Executor Dative who alleadged that there was 2000. merks of the Sum belonged to him because his Fathers Assignation to the Children contained an express Division of their shares which was so much less then the hail Sum Assigned The Children answered they opponed their Assignation which bare expresly an Assignation to the hail Sum and Bond it self and albeit the Division was short it was but a mistake of the Defunct and cannot prejudge the Assigneys Which the Lords found Relevant George Melvil contra Mr. Thomas Ferguson Iune 25. 1664. GEorge Melvil pursues Mr. Thomas Ferguson his step-son for the value of his aliment after the Mothers Decease The Defender alleadged◠Absolvitor because the Defunct was his own Mother and he had no means of his own and it must be presumed that she Entertained him free out of her Maternal Affection and that his Step-Father did the same after he had Married his Mother The Lords sustained the first part of the Defense but not the second anent the Step-father after the Mothers decease Alexander Allan contra Mr. John Colzier Eodem die ALexander Allan pursues Mr. Iohn Colzier to pay a sum of ninety two pounds adebted for the Defenders Mother and that upon the Defenders Missive Letter by which he oblieged him to pay the same The Defender answered absolvitor because by the missive produced he offered him to become the Pursuers Debitor for the sum due by his Mother being about ninety two pounds but by a Postcript requires the Pursuer to Intimat to him or his Friends at Falkland whether he accepted or not which he did not then till after the Defenders Mothers Death and so it being a Conditional offer not accepted is not binding Which the Lords found Relevant and Assoilzied Cauhame contra Adamson Eodem die THomas Cauhame having Appryzed a Tenement in Dumbar from Ioseph Iohnstoun pursues Iames Adamson to remove therefrom who alleadged Absolvitor because this Apprizer could be in no better case then Iohnstoun from whom he Appryzed whose Right is affected with this provision that he should pay 600. pounds to any person his Author pleased to nominat Ita est he hath Assigned the Right to the Defender so that it is a real Burden affecting the Land even against this singular Successor and included in his Authors Infeftment The pursuer answered that albeit it be in the Infeftmen yet it is no part of the Infeftment or real Right but expresly an obliegment to pay without any Clause Irritant or without declaring that the Disponers Infeftment should stand valid as to the Right of that Sum. The
First That the foresaid Priviledge which sometime did belong to all Monestries was by Pope Adrian the fourth limited to the Cistertian Order Templars Hospitillars and that for such Lands only as they had before the Lateran Counsel So that the Suspender cannot injoy that Priviledge First because he cannot instruct the Lands to have belonged to the Abbacy before that Counsel 2ly That being a Priviledge granted to Church-men is Personal and cannot belong to their Successors being ley men and albeit the said Decreet be in favours of the said Lord Newbotle yet he was Comendator of the Abbacy and so in the Title of the Order The Lords found the Reason relevant and instructed by the said Decreet and Suspended for such part of the Lands aâ— were in the Suspenders own hand Mr. William Colvill contra the Executors of the Lord Colvill his Brother Eodem die MR. William Colvill pursues the Executors of the Lord Colvill his Brother for payment of 2000. merk of Portion Contracted to him by his brother incase his Brother wanted Heirs Male It was alleadged for the Defender absolvitor because the Contract is null there being no Witnesses designed therein to the Lord Colvills Subscription but only two Witnesses expresly subscribing as Witnesses to Mr. William Colvils Subscription and other two undesigned subscribing as Witnesses but not relating to any particular Subscription The Pursuer answered that he offered to designe the other two Witnesses which was always found sufficient to take away that nullitie It were answered for the Defender that albeit the Designation were sufficient in recenti where the Witnesses were on life because use may be made of these Witnesses to improve the Write which could not hold in re antiqua where both Witnesses were dead The Lords formerly found that the Designation was not sufficient without instructing the Write by Witnesses or Adminicles for which effect the Pursuer produced several Writs subscribed by the Lord Colvill and by one of the two Witnesses that comparatione literarum might instruct the truth of their Subscriptions and alleadged further that this being a mutual Contract and unquestionably Subscribed by the one Contracter and being of that nature that he whose Subscription was unquestionable did ingadge for a more onerous cause then the other The Lords compared the hand writs and found them both alike sustained the VVrite The Pursuer making faith that it was truely subscribed by both Parties Hospitall of Glasgow contra Robert Campbel Iuly 19. 1664. THe Hospital of Glasgow having Appryzed the Lands of Silvercraige they thereupon obtained Decreet which beingâ— Suspended compearance is made for Robert Campbel in Glasgow who alleadged that he has Appryzed the Estate of Lamont from the Laird of Lamont and that the Lands of Silvercraige are a Part and Pertinent of the Lands Apprized by him whereby he stands in the Right of the Superior and offers to prove that the Lands in question are Waird and that the Appearand Heir from whom the Hospitall hath Appryzed is yet Minor and therefore the Hospitall coming in his place can be in no better Case nor the Minor but the Course of the Waird must run during the Appearant Heirs minority The Charger answered that the Course of the Waird cannot now run because the Lands are full by the Infeftment of the Appryzer who stands Infeft being received by a prior Appryzer of the Superiority without any Exception or Reservation of the Waird Duties It was answered for Robert Campbel that George Campbels Appryzing of the Superiority was extinct by Satisfaction with the Males and Duties before he received the Hospitall and so there is now place to the Second Appryzer neither can the filling of the Fee by the Appryzer stop the Course of the Waird which began before the Appryzing albeit the Appryzer be Infeft simply seing all Infeftments on Appryzings are in obedience which never imports a passing from any Right of the Superiors albeit he do not reserve the same and therefore he may make use of any Right in his Person not only as to the Casualities of the Superiority but as to the Property and his receiving in obedience is only to give the Appryzer Anteriority of Diligence Which the Lords found Relevant Sir Laurence Scot contra Lady Shenaltoun Eodem die IN an Act of Litiscontestation betwizt Sir Laurence Scot and the Lady Shenaltoun a Defense of Payment being found Relevant Scripto veljâ—ramento for Sir Laurence and not having cited the Lady to give her Oath nor produced any Write the Term was craved to be circumduced The Lords did not circumduce the Term but found that the Pursuer should have been still ready to produce his Client to Depone if the Defender made choise of his Oath Elizabeth Douglass contra Laird of Wadderburn Eodem die ELizabeth Douglass as Heir to her Goodsire and Sr. Robert Sinclar of Locâ—ermacus her Husbands pursue a Spuilzie of Teynds against the Laird of Wadderburn who alleadged absolvitor because he had Tack of the Teynds of the saids lands from the Earl of Hoom and by vertue thereof was bona fide Possessor and behoved to bruik till his Tack were reduced 2ly That he had Right from the Earl of Hoom by the said Tack which Earl of Hoom albeit his Right which he had the time of the granting of the said Tack was reduced yet he has sincepresently in his Person the Right of the Teynds of the lands from Iohn Steuart of Coldingham which being jus superveniens authori must accresce to the Defender and defend him in this Pursuit The Pursuer answered to the First Defense that the Defenders bona fides was interrupted by Process against him long before the Years lybelled 2ly Albeit there had been none yet this Author the Earl of Hooms Right being reduced in Parliament his bona fides being sine omni titulo is not sufficient neither needed the Tacks-man to be called to the Reduction but his Right fell in consequentiam with the granter of the Tacks right The second Defense It was answered that the general maxime of jus Superveniens has its own fallancies for the Reason of the maxime is that when any thing is disponed for a cause onerous equivalent to the Value thereof It is always understood that the Disponer dispones not only what Right he hath already but whatever Right he shall happen to acquire seing he gets the full Value and therefore sixione juris whatever Right thereafter comes in his Person though it be after the Acquirers Right yet it is holden as conveyed by the Acquirers Right without any new Deed or Solemnity but where that Reason is wanting it holds not as first if it appear that the Cause of the Disposition is not at the full Value then it is presumed that the Disponer only disponed such Right as he presently had or if the Disponer deduce a Particular Right as an Appryzing or Tacks c. and either Dispons but that Right per expressum or at least dispones
1621. It was answered for the Lady They opponed the Lords dayly Practique ever since the said Act that Infeftments were never taken away thereupon by Exception or Reply Which the Lords found Relevant Montgomerie contra Hoom. Eodem die WIlliam Mongomery pursues Alexander Hoom to Remove who alleadged absolvitor because he stands Infeft and by vertue thereof in seven years Possession and so hath the benefit of a Possessorie Judgement It was Replyed that before any such Possession a Decreet of Removing was obtained against the Defender which made him mala fide Possessor It was duplyed that since that Decreet which was in absence the Defender had Possessed it seven years without Interruption which acquired the benefit of a new Possessorie Judgement And alleadges that an Interruption of Possession ceases by seven years albeit in the Point of Right it ceases not till Fourty The Lords found the Interruption stands for fourty Years and that no Possession thereafter upon that same ground could give a new Possessorie Iudgment the Possession being Interrupted not only by Citation but by a Decreet of Removing which stated the other Partie in Civil Pessession Earl of Sutherland contra Mcintosh of Conadge Eodem die THe Earl of Sutherland pursues Mcintosh of Conadge for the profit of a Regality belonging to the Earl viz. Blood-wyts Escheats c. whereof Conadge had obtained Gift from the Usurpers the time that Regalities were Supprest and declared that he insisted for those only that were yet unuplifted for which the Parties Fyned had not made payment albeit some of them had given Bond. The Defender alleadged absolvitor for Blood-wyts and Amerciaments which might have been done by the Justices of Peace because as to these the Inglish had done no wrong seing the Justice of Peace might then and may now Cognosce and Fyne for Blood-wyts whithin the Regality The Pursuer answered that as he might have Re-pleadged from the Justice General if he had not been impeded by the Act of the Usurpers so much more might he have re-pleadged from the Justice of Peace and therefore any Blood-wyts decerned by them belonged to him as Lord of the Regality The Lords repelâ—ed the Defense and joâ—nd the dead of the Iustice of Peace could not prejudge the Pursuer M. John Muirhead contra Iuly 21. 1664. MR. John Muirhead as Assigney pursuing he alleadged that the Assignation not being intimat before the Cedents death the Sum was in bonis defuncti and the Assigney could have no Right without Confirmation The Lords Repelled the alleadgance James Johnstoun Merchant in Edinburgh contra The Lady Kincaide November 11. 1664. JAmes Iohnstoun pursues the Lady Kincaide as Executrix to her Husband who alleadged absolvitor because the Testament was exhausted and she had obtained a Decreet of Exoneration which being standing un-reduced she behoved to be assoilzied seing there was no Reduction thereof raised 2ly Albeit the said Exoneration were quarrallable hoc ordine yet it appears thereby that the Testament was exhausted The Pursuer answered that the first Defense on the Exoneration non Relevat unless the Pursuer had been cited to the giving thereof it operats nothing against him nor needs he Reduce it 2ly The second member of the Defense of exhausting the Testament mentioned in the Exoneration non Relevat unlesse it were alleadged exhausted by lawful Sentences before intenting of the Pursuers Cause The Defender answered that it was Relevant to alleadge that payment was made of lawful Debts of the Defuncts instructed by writ before intenting of the Pursuers Cause for seing the Debt was clear the Executor ought not to multiply Expenses by defending against the same unless it were alleadged there were collusion to prefer the Creditors payed The Lords repelled both members of the Defense and found that the Executrix might not without a Sentence prefer any Creditor especially seing it was not a Debt given up in Testament by the Defunct neither was it alleadged that the Pursuer had long neglected to pursue Nicolas Murray Lady Craigcaffie contra Cornelius Neilson Merchant in Edinburgh November 12. 1664. NIcolas Murray pursues a Reduction of a Decreet of the Baillies of Edinburgh obtained against her at the instance of Cornelius Neilson upon this Reason that she being pursued for the Mournings for her self and Family to her Husbands Funeralls which Mournings were delivered to her by the said Cornelius and were bought by her from him or by her Order sent to her which was referred to her Oath and she deponed that Cornelius had promised to his Father to give necessars for his Funerals out of his Chop and according to that promise had sent unto her The Baillies found that this qualitie adjected in the Oath that the Furniture was upon Cornelius promise to his Father resulted in ane Exception which they found probable by Write or Oath of Cornelius who having deponed denyed any such promise and therefore they decerned the Lady to pay Against which her Reason of Reduction is that she ought to have been Assoilzied by the Baillies because her Oath did not prove the lybel viz. That she bought the Wair from Cornelius or made her self Debitor therefore but only that she received the same from him without any Contract or Ingadgment which would never make her Debitor for a Wife or a Bairn in Family are not lyable for their Cloaths unless they promise payment but only the Father and in the same manner the Mourning for the Funeralls of the Husband is not the Wifs Debt but the Husbands Executors The Defender answered that the Reason was no ways Relevant seing the Pursuers Oath proved the receipt of the Goods which was sufficient ad victoriam causa The quality being justly taken away for albeit the Husband or his Executors were lyable for the Relicts Mournings yet a Merchant that gives off the same to the Relict is not oblidged to dispute that but may take himself to the Relict who received the same without either Protestation or Aggreement not to be lyable The Pursuer answered that whatever Favour might be pleaded for a Merchant Stranger yet this Furniture being given by the Defuncts own Son to his Relict could not oblidge her The Son being the Fathers ordinar Merchant The Lords found that the Oath before the Baillies proved not the lybel and that the accepting of the Mournings did not oblidge the Relict but the Executors seing the Defunct was a Person of their quality that his Relict required mourning and therefore Reduced Galbreath contra Colquhoun Eodem die WAlter Galbreath pursues an Exhibition of all Writs made by or to his Predecessors ad deliberandum The Lords restricted the lybel to Writs made to the Defunct or his Predecessors or by them to any Preson in their own Family or containing any Clause in their â—avour whereupon the Defender having Deponed that he had in his hand a Disposition of Lands made by the Pursuers Predecessors Irredeemably and that he had his Predecessors progress of these Lands but that
that the Liferent of the whole was given in satisfaction of the third and all The Pursuer answered that this could not be presumed unless it had been so exprest no more then a Terce is excluded by a provision of Liferent unless it bear in satisfaction of a Terce The Lords found the Defense Relevant that the Pursuer could not both have her third and the Liferent of the rest but gave her her option either of the third provisione legis or of her Liferent of the whole provisione hominis Earl of Athol contra Iohn Scot. Eodem die THe Earl of Athol having obtained Decreet against Iohn Scot before the Commissar of Dunkeld for the Teinds of the said Iohn his Lands He Suspnds and raises Reduction on this Reason that albeit the Decreet bear a Defense proponed that the Teinds in question are Mortified by the King to a Kirk and that the same was found Relevant and that the said Iohn succumbed in proving thereof yet he offers him to prove that before the Term elapsed he produced the Mortification before the Commissar and thereupon took Instruments which is produced Which the Lords found Relevant Mr. George Norvel Advocat contra Margaret Sunter Eodem die MR. George Norvel pursuing for Mails and Duties upon an Appryzing Compearance is made for Margaret Sunter who alleadged absolvitor because she was Infeft in Liferent before Mr. Georges Right which being found relevant for instructing thereof she produced her Seasine Which the Lords found not to instruct without an Adminicle and therefore sustained the Decreet The said Margaret raised Reduction of this Decreet on this Reason that now she produced an Adminicle viz. her Contract of Marriage 2ly That the Decreet is null because the quantities are not proven The Charger answered to the first that the Lords having found the Exception not proven the Pursuer could not be admitted in the second instance against a Decreet in foro upon production of that which she should have produced at first As to the second he needed not prove the quantities seing her exception was total without denying the quantities The Lords found the Decreet valide but ordained some of their number to deal with Mr. George to show favour to the poor woman Doctor Ramsay contra Mr. William Hogg and Alexander Seton December 22. 1664. THese three Parties having appryzed the same Lands the first Appryzer being Infeft the second not being and the third being Infeft The first Appryzer declared he would not insist for the Mails and Duties of the whole but only possessed a part The question came whether the second Apprizer not having Charged should be preferred to the third who was Infeft It was alleadged for the second Appryzer that he needed not be Infeft because the first Appryzer being Infeft in all he had the only jus proprietatis and there was nothing remaining but jus reversionis which the Appryzing alone carryed and as the second Appryzer might redeem the first as having the right of his Reversion so he might force him either to possess the whole whereby his Appryzing might be satisfied or give warrant to the second to Possess the remainder so likewise he might use Redemption It was alleadged for the third Appryzer that if the question were of the Redemption of the Land the second had good Right but the question being for the Mails and Duties a right of Reversion could never carry these without a Seasine The Lords considering the Point in Law and the great disadvantage the Leiges should sustain if all Appryzers were necessitat to take Infeftment They prefered the second Appryzer Cornelius Inglis contra Mr. Rodger Hog Eodem die MR. Cornelius Inglis being Infest upon an Appryzing pursues a Removing compearance is made for Mr. Rodger Hog who alleadged that he is also Infeft and had charged the Superiour though after the first Appryzer and had possessed seven years by lifting the Mails and Duties and therefore craved the benefit of a Possessorie Judgement The Lords having considered the Case amongst themselves whether an Appryzing and Charge without Infeftment could give the benefit of a Possessorie Iudgement They were equally divided in their Votes and the President resolved before he gave his Vote to settle the Parties contra Edmistoun of Carden Ianuary 6. 1665. EDmistoun of Carden being pursued by a Creditor of his Fathers as Lucrative Successor to his Father by accepting of a Disposition of his Fathers Lands after contracting of the Pursuers Debt alleadged absolvitor because being pursued beforeby another Creditor of his Fathers he did then alleadge that his Disposition was not Lucrative but for a Cause onerous equivalent to the worth of the Land which he proved by instructing the Rental and Rate of the Land at the time of the Disposition by Witnesses and the Sums undertaken for it by Writ whereupon he was Assoilzyed and can never be again conveened upon that ground nam obest exceptio rei judicatae for if he had been condemned as Lucrative Successorâ— upon the other Creditors Probation It would now have proven against him and therefore his beng Assoilzied must be profitable to him against others unless Collusion were alleadged and Instructed The Pursuer answered that this absolvitor was res inter alios acta and albeit a Condemature would have been effectual against the Defender non sequitur that an absolvitor should also be effectuall for him because he was called to that Condemnature but this Creditor was not at all called to the absolvitor 2. Even in a Condemnature if the Defender had omitted any thing that he might have alleadged in the one case competent and omitted would not hinder him to propone the same against another Creditor Therefore the Defender can only repeit the grounds of that absolvitor which if he do the Pursuer will alleadge That whereas in the absolvitor the Defender was admitted to prove the Rental The Pursuer omitted to crave the benefit of Probation which he would have gotten and this Pursuer offers him to prove that whereas the Rental was proven to but 18. Chalders of Victual the true Rental was worth 30. Chalder 3dly A part of the onerous Cause was the Portion of the Defuncts Children which would not Prejudge the Pursuer being an anterior Creditorâ— The Lords found that the absolvitor could not prejudge this Pursuer as to these points omitted and that it could not have effect inter alios except it had been in re antiqua where the Witness had died that in that case the Testimonies out of the former Process might be repeited but as to the Rental the Lords would not give the Pursuer the sole Probationâ— being so lubrick a point as not only what it payed but what the Lands were worth and it might have payed and ordained Witnesses to be examined hinc inde and found that the Bairns Portions not being payed bona fide before the intenting of this Cause could not prejudge the Creditor but ordained the Defender to Suspend on double
1666. SIr Mungo Murray having by the Earl of Crawfords means obtained from the King a Gift of the Ward and Marriage of Frazer of Streichen his Nephew he did assign the Gift to Mr. Iames Kennedy and he to Heugh Dollas before it past the Scals and at the time that the Gift was past in Exchequer the same was stopt until Sir Mungo gave a Back-bond bearing that he had promised at the obtaining of the Gift to be ruled therein at the Earl of Crawfords discretion who by a Declaration under his hand declared that the Gift was purchast from the King for the Minors behove and that only a gratuity for Sir Mungo's pains was to be payed to him and that the Earl Declared he allowed Sir Mungo 5000. merks There was a second Gift taken in the name of Sir William Purves of the same Ward and Marriage Heugh Dollas pursuing Declarator of the double avail of the Marriage because there was a suitable Match offered and refused Compearance was made for Sir William Purves and the Lord Frazer his Assigney who declared that their Gift was to Streichans behove and alleadged that the first Gift could only be declared as to 5000. merks contained in the Earl of Crawfords Declaration because of Sir Mungoes Back-bond the time of passing of the Gift It was answered First That Sir Mungoes Back-bond and the Earl of Crawfords Declaration could not prejudge the Pursuer who was a singular Successor to Sir Mungo especially seing it is offered to be proven that the Gift was assigned and intimate before the Back-bond after which no Writ subscribed by the Cedent could prejudge the Assigney It was answered that the said Assignation being of the Gift when it was an incompleat Right and only a Mandat granted by the King could not prejudge the Back-bond granted at the time the Gift past the Exchequer and Seals for then only it became a compleat Right and notwithstanding of the Assignation behoved to pass in the Donatars Cedent his Name so that his Back-bond then granted and Registrat in Exchequer behoved to affect and restrict the Gift otherways all Back-bonds granted to the Thesaurer and Exchequer might be Evacuat by anterior Assignations It was answered that this Back-bond was granted to the Earl of Crawford then but a private Person and hath not the same effect aâ— a Bond granted to the Thesaurer The Lords found this Back-bond granted at the passing of the Gift and Registrat in the Books of Exchequer to affect the said Gift and therefore restricted the Declarator thereto In this Process it was also alleadged that the first Gift was null bearing the Gift of the Ward and Marriage to be given upon the Minority of Streichen and the Decease of his Father and the second Gift buire to be upon the Minority of Streichen and the Decease of his Goodsire who dyed last Infeft his Father never being Infeft It was answered that the Designation was not to be respected seing the thing it self was constant and that the Fathers Decease albeit not Infeft was the immediate cause of the Vaccation seing the Oye could have no interest until the Father though not Infeft were dead The Lords forbore to decide in this seing both Parties agreed that the 5000. merks should be effectual so that it was needless to decide in this which if found Relevant would have taken away the first Gift wholly Colonel Cuninghamâ— contra Lyll Feb. 1. 1666. IN a Competition between Colonel Cuninghame and Lyll both being Arresters and having obtained Decreets to make forthcoming in one day and Colonel Cuninghams Arrestment being a day prior he alleadged he ought to be preferred because his Diligence was anterior and his Decreet behoved to be drawn back to his Arrestment It was answered for Lyll that it was only the Decreet to make forthcoming that constitute the Right and the Arrestment was but a Judicial Prohibition hindering the Debitor to Dispone like an Inhibition or a Denunciation of Lands to be appryzed and that the last Denunciation and first Appryzing would be preferred So the Decreet to make forthcoming is the judicial Assignation of the Debt and both being in one day ought to come in together It was answered that in legal Diligences prior tempore est pâ—tior jure and the Decreet to make forthcoming is Declaratory finding the sum arrested to belong to the Arrester by vertue of the Arrestment and as for the Instance of Appryzings the first Denunciation can never be postponed unless the Diligence be defective for if the first Denuncer take as few days to the time of the Appryzing as the other he will still be preferred The Lords preferred the first Arrester being equal in Diligence with the second contra Mr. John and Henry Rollocks Eodem die IN an Exhibition of Writs it was alleadged that Mr. Iohn and Henry Rollocks being Advocat and Agent in the Cause was not oblieged to Depone in prejudice of their Clients or to reveal their secrets but they ought to pursue their Clients for a Servant Factor or Person intrusted with the custody of Writs ought not to be Examined in prejudice of their Constituent unless it were as a Witness It was answered that their Client was called In respect whereof the Lords ordained the Defenders to Depone concerning the having of the Writs Fodem die AN Executor Dative ad omissa mala appretiata pursuing the principal Executrix and referring the Goods omitted and Prices to her Oath She alleadged that she had already Deponed at the giving up of the Inventar and could not be oblieged to Depone again The Lords ordained her to Depone seing she might have intrometted after and more might have come to her knowledge of the worth of the Goods or a greater price gotten therefore Arch-bishop of Glasgow contra Mr. James Logan Eeb. 6. 1666. THe Arch-bishop of Glasgow pursues a Declarator against Mr. Iames Logan for declaring he had lost his place as Commissar Clerk of Drumfreis because he had deserted his place and gone out of the Countrey and because he was a Person insolvent and denunced Rebel and had lifted a considerable Sum for the Quots of Testaments which he had taken with him and not payed It was answered that the Defender had his Gift from the former Arch-bishop with a power of Deputation and that his place is and hath always been served by a Depute and therefore neither his absence nor his being Denunced for Debt can annul his Gift or hinder him to Serve by his Deput It was answered that the principal Clerk not having personam standi in judicio his Depute cannot sit for him who could not sit himself and that he being absent out of the Countrey for a considerable space must be esteemed to have Relinquished his Place The Lords found the Defense Relevant upon the pâ—wer of Deputation which they found not to be annulâ—eâ— by his absence or denunciation sine crimine Livingstoun contra Begg Eodem die THomas Begg having
old Act of Parliament Iames 2. bearing that whosoever should compone with a Thief for stollen Goods should be lyable in Theft-boot and punishable as the Thief or Robber He raises Advocation on this Reason that the Act was in desuetude and the matter was of great moment and intricacy what Deeds should be compted Theft-boot whereinto no inferiour Judge ought to decide because of the intricacy It was answered that the Lords were not Competent Judges in Crimes and therefore could not Advocat Criminal Causes from inferiour Courts and the Earl of Murray being Sheriff and having sufficient Deputs both should concur in the careful Decyding of the Cause It was answered that albeit the Lords did not Judge Crimes yet it was competent to them to Advocat Criminal Causes ad hunc effectum to remit them to other more competent unsuspect Judges The Lords Advocat the Cause from the Sheriff and Remitted the same to the Iusticeâ— because of the antiquity of the Statute and intricacy of the Case Lockhart contra Lord Bargany Feb. 22. 1666. THe umquhil Lord Bargany being adebted in a sum of Money to Sir William Dick he appryzed but no Infeftment nor Charge followed Thereafter a Creditor of umquhil Sir William Dicks appryzes but before the appryzing Lockhart upon a Debt due by Sir William Dick arrests all sums in my Lord Bargany's hand and pursues to make forth-coming This Lord Bargany takes a Right from the appryzer for whom it was alleadged that he ought to be preferred to the Arrester because the arrestment was not habilis moduâ— in so far as Sir William Dick having apprized for the sum in question the apprizing is a judicial Disposition in satisfaction of the sum and so it could not be arrested unless it had been moveable by a Requisition or Charge It was answered that the Act of Parliament Declaring Arrestment to be valid upon sums whereon Infeftment did not actually follow made the Arrestment habile and the Apprizing can be in no better case then an heretable Bond Disponing an annualrent It was answered that the Act of Parliament was only in the case of Bonds whereupon no Infeftment followed but cannot be extended beyond that case either to a Wodset granted for the sum where the Property is Disponed where no Infeftment had followed or to an Apprizing which is a judicial Wodset pignus pretorium It was answered that the Reason of the Law was alike in both cases to abbrige the Lieges unnecessar Expences by apprizing The Lords preferred the Apprizer Bishop of Glasgow contra Commissar of Glasgow Eodem die THe Bishop of Glasgow insisted in his Declarator against the Commissar of Glasgow and alleadged first that by injunctions related to in the Act of Restitution 1609. It was provided that all Commissars should Reside at the place where the Commissariot Sat and should not be absent but upon necessity and with leave of the Bishop under the pain of Deposition and that in case of the absence of the Commissar through sickness or other necessity or through being declined in these Causes the Bishop should name a Deput From whence it was alleadged first That the Commissar had already Transgressed the Injunctions and deserved Deposition for none Residence and for appointing Deputs himself not appointed by the Bishop yea for continuing to make use of these Deputs albeit the Bishop did intimat the Injunctions to him and did Judicially require the Deput not to sit and took Instruments thereupon 2ly That in time coming it ought to be Deâ—lared that the Commissar ought to Reside under the pain of Deprivation and to Act by no Deput but such as were authorized by the Bishop It was alleadged for the Defender Absolvitor from this Member of the Declarator because the Defender had his Office from the King and the late Bishop of Glasgow with power of Deputation And as to the Injunctions first They had no authority of Law for albeit the Act of Parliament 1609. related to Injunctions to be made yet it did not authorise any Persons to make the same nor is it constant that these are the Injunctions that is alleadged to be made by the Bishops in anno 1610. 2ly Albeit they had been then so made they are in deâ—uetude because ever since all Commissars have enjoyed their place with power of Deputation and exercised the same accordingly 3ly There is no Injunction against the Bishops giving power to the Commissars to Deput for albeit the Injunctions bear that in such cases he could not give Deputation and therefore the Commissar did not wrong to continue his Deput And it is most necssar that the Commissar should have a Power of Deputation or otherwise their Office is elusory seing the Bishop may be absent or refuse to Depute any Person in case of the Commissars necessary absence and so both delay Justice to the Leidges and Evacuat the Gift It was answered for the Pursuer that first the Injunctions were commonly received and known through all the Kingdom and are Registrat in the Commissars Books of Edinburgh being the Supream Commissariot and according thereto the Lords have decided in Advocations and Reductions and albeit they have not been observed seing there is no contrair Decision they cannot go in desuetude by meer none observance 2ly That the Injunctions do import that no Deputation can be granted by Commissars but only by the Bishops in casibus expressis It is clear from the foresaid two Injunctions for to what effect should the Commissars Residence be required if he might at his pleasure act by Deputs and why were these cases exprest if Deputation were competent in all Cases 3ly Albeit the power of Deputation granted by Bishop Fairfowl be sufficient during his life and seclude him from quarrelling the same personali objectione yet that Exception is not competent against this Arch-bishop 4ly The Injunctions being sent up to the King His Majesty has Signed and Approven the same which therefore Revived them and for the inconveniency upon the Bishops absence or refusal is not to be supposed but that the Bishops concerned in the Commissariots would provide remeid in such Cases The Defender answered that Acts of Parliament were not drawn ad pares casus consequentias much less their Injunctions and though they were now Revived yet that cannot be drawn back to the power of Deputation granted before Neither can this Bishop be in better condition then his Prececessor or quarrel his Predecessors Deed which he had power to do The Defender did also resume the Defense as to sufficiency and tryal that seing he had power of Deputation he was not lyable to Tryal nor to Reside if his Deput were sufficient The Lords found that albeit the power of Deputation should absolutely stand yet the principal Commissar behoved to be be sufficient and ordinarly Resident seing his sufficiency was both requisit by the Act of Restitution 1609. and by Exception in the Act of Restitution 1661. and that he ought to direct and
Title to Consideration as to this Point whether Vitious Intromission as it is an universal passive Title died with the Intromettor or if it might be pursued against his Representatives they ordained the Parties to be heard thereupon which being Reported this day The Lords found that no personâ— as representing a Defunct could be lyable universaliter upon that Defuncts Vitious Intromission but only for the true value of his Intromission and that either by Action or Exception upon this Consideration that albeit â—uch Titles have been oft times Libelled and sometimes Sentence thereupon when none opposed yet there had never been a Decision nor Interlocutor for it and that the passive Title being poenal sapiens naturam delicti non transit in haeredes delinquentis in quantum penale for they thought it were of dangerous consequence if Persons might be lyable not only to their immediat Predecessor but to their Goodsire Grandsire or Fore-grandsires vitious Intromission but if the vitious Intromission had been Established against the Defunct in his own time it would be sufficient against all his Successors Otherways after his death they could not be put to purge the Vitiosity or to shew the manner or the Warrand of his Possession But it was not determined if Action had been intented against the Defunct and he dyed before Sentence whether his Heir would be lyable there being different Cases as to that Point which required different Considerationsâ— as if the Defunct dyed after Probation or if after Litiscontestation when at least the particulars were condescended on and the Defunct compearing alleadged nothing to purge or if the Pursuit were de recenti and not long delayed but the Defunct dyed the Pursuer doing all Diligence or if Diligence were not used but the matter lay over in which case it seems litle respect could be had to the intenting the Action only and it would be as litle questionable that if Probation were led the Defunct compearing it would be as valid against him as if Sentence were obtained the midle Cases are more dark But none of them were comprehended in this Decision Iames Thomson contra Binnie Eodem die THere being a Decreet obtained against Binnie his Creditors finding him at Linlithgow secured him and he found two Burgesses Caution as Law will who being conveened for payment of the Debt alleadged absolvitor because they were only in common Form Obliged as Cautioners as Law will which doth not import judicio sisti judicatum solvi but judicio sisti aut judicatum solvi Ita est They sisted the Party for whom they were Cautioners and put him in the Provosts hands who put him in Ward and Protested to be free conform to an Instrument produced It was answered non relevat because they only sisted him judici but not judicio they ought to have presented him in the Court when that Cause was called and the Pursuer was not obliged to know or take notice what they did otherways which might be by way of Collusion The Lords found the alleadgence Relevant for there was no Collusion condescended on providing the Defenders prove by the Witnesses insert iâ— the Instrument that it was so Acted For they thought that if the Cautioners put the Debitor in Ward at any time during the Process the Pursuer was not prejudged For if he insisted in his Process and upon not presenting of the Defender Protested the Cautioners would either then alleadge that he was in Prison or otherwayes it would import Collusion Mr. Iohn Hay contra Sir Iames Dowglas Eodem die MR. Iohn Hay of Haistoun and Sir Iames Dowglas having both Rights of Appryzing of the Estate of Smithfield did agree that Sir Iames should have three parts and Mr. Iohn one and did obtain a Decreet at both their Instances for removing a Tennent from some Aikers but Sir Iames Laboured and did Sow the whole Mr. Iohn did thereafter Sow as much Corn upon the Sown Land as would have sown his quarter and now pursues an Intrusion against Sir Iames who alleadged absolvitor because Mr. Iohn was never in natural possession and offered to give the 4. part of the Rent the Aikers payed before The Pursuer answered that the removing of the natural Possessor was equivalent as if Mr. Iohn had been in natural Possession of his Quarter and therefore the offering to him the Rent was not sufficient yet he was willing to accept the Rent for this year so as Sir Iames would devide for time coming The Lords found that in this Process they could not compel Sir Iames to devide but sustained the Process ad hunc effectum that Mr. Iohn should have the 4. part of the Cropt paying Sir Iames the Expences of Labourage Dam Margaret Hume contra Crawford of Kerse Eodim die DAM Margaret Hume having charged the Laird of Kerse who was Cautioner for the Earl of Lowdoun for her Liferent that she had out of the Estate of Lowdoun He Suspends and alleadges that the Charger ought to assign him seing the Bond wants a Clause of Relief whereby he will have difficulty to have Relief of the other Cautioners bound The Lords found that they could not compel the Charger to assign but in so far as of her own consent she would Canna contra Eodem die THere was a Disposition of some Tenements in Dumbar containing this provision that the Buyer should pay such a sum of Moneyâ— to a Creditor of the Sellers under the pain and penalty that the said Disposition should be null Infeftment followed upon the Disposition and the Land is now Transmitted to singular Successors who pursuing for Mails and Duties It was alleadged for the Creditor by the Reservation that this Reservation being a real Provision the Creditor must be preferred to the Mails and Duties ay and while the Sum be payed It was answered first That this provision was neither in the Charter nor Seasine and any Provision in the Disposition could only be Personal and could not affect the Ground nor singular Successors seing no Inhibition nor other Diligence was used on it before their Right 2ly Albeit it had been a Provision in the Investiture yet it could have no Effect against the Ground which canâ—not be affected but by an Infeftment and upon a Provision neither Action nor Poynding of Annualrents nor Mails and Duties could proceed It was answered that real Provisions must necessarly affect the Ground and there can none be more real than this not only being a condition of the Disposition but also containing a Clause Irritant The Lords having first ordained the Infeftment to be produced and finding that the Seasine proceeded upon the Precept in the Disposition without Charter being within burgh the Lords found that the Provision could give no present access to the Mails and Duties until the Clause Irritant were declared or that it were declared that they should have like Execution by vertue thereof against the Lands as if it were in the hands of the first Buyer which
the Lords thought would operat but had not the occasion here to decide it Iohn Scot contra Sir Robert Montgomery Iuly 12. 1666. JOHN Scot pursues Sir Robert Montgomery as vitious Intrometter with the Goods and Gear of Sir Iames Scot of Rossie to pay a Debt due by Sir Iames to the Pursuer The Defender alleadged absolvitor because any Goods he Intrometted with were Disponed to him for Onerous Causes by the Defunct and delivered conform to an Instrument of Possession produced It was answered that the Disposition bears Horse Neat Insight Plenishing and all other Goods and Gear which cannot be extended to any thing of another kind nor of greater value as current Money Jewels Silver-plate Chains c. which never past by such general Clauses unless it be specially Disponed It was answered that albeit there had been such Moveables and the Defender had Intrometted therewith though another having a better Right might Evict the same yet the Defender had a probable Ground to Intromet which is sufficient to purge this Odious passive Title The Lords found the Disposition and Delivery Relevant to purge the Vitiosity Normand Livingstoun contra Lady Glenagies Iuly 13. 1666. NOrmand Livingstoun having appryzed the Lands of Glenagies pursues the Tennents for Mails and Duties wherein the Lady compeared aud alleadged that she ought to be preferred because she is Infeft in a Liferent in the Lands by her Contract of Marriage It was Replyed that the Lady and her Husband for all Right that either of them had had given a Right to their Cautioners to uplist the Mails and Duties of the Lands in question for payment of Debts and this Debt particularly whereon this Appryzer proceeds with power also to the Cautioners to Dispone any part of the Lands for payment of the Debts which the Lady Ratified Judicially and which now Excludes her from hindring any of these Creditors to get payment It was answered for the Lady first That this Right was but a Factory or Commission and so Expyred by the Lairds Death 2ly It was only in favours of the Cautioners for their Relief but the Creditors had no Interest to alleadge thereupon 3ly The Cautioners were never Distrest and it was a mistake being to them as Creditors in the Sum not being so in effect The Lords having considered the Commission and that it buir not only the Lady to consent but for all her Right to grant Commission and that not only it was in favours of the Cautioners in case of Distress but also in favours of the Creditors bearing to be for payment of the Creditors Therefore they found the same Relevant against the Lady to exclude her Infeftment ay and while the Debts were payed But this occurred to the Lords that if the Lady could condescend that by the Creditors or Cautioners fault in not making use of this Commission the Laird was suffered to continue in Possession so that if they had used Diligence the Debts would have been payed in whole or in part and the Ladies Liferent disburdened pro tanto they would find the same Relevant Patrick Keith contra Laird Lesmore Troup and others Iuly 14. 1666. PATRICK Keith having Right of Wodset granted by the Earl of Marischal pursues a Reduction against the Laird of Lesmore of a posterior Right granted by the Earl to him Which Right was Disponed to Muiresk who was Infeft and Dispon'd to Troup who is present Heretor who being all Called and Litiscontestation made and the Cause concluded at the Advising thereof it was alleadged for Troup that Muiresk was dead and there could be no advising of the Cause till some Representing him were Called for as in initio there could be no Process against Troup the present Heretor till Muiresk his Author were Called So neither can there be any procedor now till some Representing him be Called It was answered the Pursuer declares that he Insists against Lesmores Right principaliter against which only the Reasons are Sustained and as for Muiresk and Troups Rights they will fall in consequentiamâ— The Lords found that the Process behoved to be Transferred against Muiresks appearand Heir before it could be advised For as the declaring that the Pursuer Insisted principaliter against the first Right would not have been Relevant ab initio seing the Law allows all mediat Authors to be Called that they may defend the Right whether and Reasons be Libelled against their Rights or their Authors which comes in the place of the old Custom of sisting Process until the Defenders Warrand were Called and Discust So every Author has alike Interest to Object against the Reasons although Libelled principaliter against the first Authors Right But the Lords declared that seing the Defender made this unnecessar delay they would be more favourable in drawing back the Reduction ad litem motam aut contestatam Sharp contra Glen Eodem die IN a Competition betwixt two Compryzers It was alleadged that the Pursuer who Insisted for the Mails and Duties his Appryzing was extinct by Intromission within the Legal Which was offered to be proven by his Pursuers Author his Oath It was answered that his Authors Oath could not be Received against a Singular Successor standing now Infeft for as the Cedents Oath is not Receivable against the Assigney in personal Rights much less is the Authors Oath against the singular Successor in real Rights It was answered that before this Pursuers Right res fuit litigiosa in so far as the Pursuers Author having before pursued Mails and Duties in that Process the Defender offered to prove by his Oath that the Appryzing was satisfyed whereupon litiscontestation was made whereby res fuit litigiosa and no posterior Right could prejudge the Defender Which the Lords found Relevant and ordained the Authors Oath to be taken Fountain and Brown contra Maxuell of Nethergate Eodem die BRown as Heir to Mr. Richard Brown who was Heir to Thomas Brown pursued for exhibition and delivery of a Wodset Right granted in favours of Thomas Wherein the Lords having sustained Witnesses to be admitted to prove not only the having of the Writs since the intenting of the Cause but the having them before and the fraudful putting them away which ordinarly is only probable by Writ or Oath unless evidences of Fraud be condescended on in respect the matter was ancient and the Pursuer had long lived in England now at the advising of the Cause severall of the Witnesses were found to Depone that the Defender before the intenting of the Cause not only had such a Wodset Right but was dealing to get the same conveyed in his own Person which importing Fraud The Lords would not absolutely decern him to exhibite but found that he behoved docere quomodo desijt possedere or otherwayes produce and therefore ordained him to compear that he might be interrogat and condescend upon the particular Writs Thomas Ogilvy contra Lord Gray Iuly 17. 1666. THomas Ogilvie pursues the Lord Gray as behaving himself as
Die UMquhil Dumbaith having Disponed several Lands to his Oy Iohn Rosse Brother to Kilraick the Laird of May Dumbaiths Heir-male pursues Improbation and Reduction of the Disposition and insisted upon this ground that the Disposition was false in the Date and that the Defunct was aliâ—it the time it appeares to have been subscrived and therefore is false in all It was answered that there was only an Error in the Date in respect the same Right having been conceived formerly in formerly in favours of another Dumbaith gave order to draw it over in favours of the Defender verbatim and the Writer ignorantly Wrote over the Date as it was in that first Disposition which can no ways annul the Writ especially seeing it was offered to be proven by the Witnesses insert that the Writ was truly subscribed by Dumbaith and them as Witnesses when he was in his Liege-poustie against which no alledgeance of alibi by other Witnesses not insert can be respected This having been Dispute in the English time the Witnesses were Examined before answer by three of the Judges and now the Cause was Advised The Lords found the Defense relevant to elide the Improbation that the Writ was truly subscribed before the Defunct was on death-bed and found the samen proven by the Witnesses adduc'd and thereafter assoilzied Laird of Rentoun Iustice Clerk contra Lady Lamberton Eodem Die THe Lord Rentoun insisted in the Cause against Lambertoun mentioned the 13. February 1667. He now insists on this member offering to prove that Umquhil Lambertoun by his Commission or Bond was oblidged to the Estates for exact diligence and the Pursuer being now Restored he is lyable to Count to him in the same manner as to the Estates not only for his Intromission but for his Negligence whereby he suffered other Persons publickly and avowedly to cut the Pursuers Woods of a great value and did no ways stop nor hinder the same nor call them to an Account 2ly He himself Intrometred with the said Wood at least others by his Warrand which Warrand must be presumed in so far as he having a Commission and oblidged for diligence did not only suffer the Wood openly to be cutted but applyed a part thereof to his own use and was oftimes present when it was in cutting by othersâ— The Defender answered First That he could never be lyable to the Pursuer for his Omission because his only Tittle was his Right of Property whereby the Defender was lyable to Restore to him what he had Intrometted with and not Counted for but for his oblidgement to do Diligence it was only personal granted to the Estates and albeit they Restored the Pursuer to the Estate they never Assigned him to that Obligation 2ly The Defender is secured by the Act of Indemnity except in so far as he Intrometted and did not duely Count as was found by the former Interloquitor in this Cause and as to the second member It was answered that the Defender being only Countable for his Fathers Intromission not Counted for albeit he had given warrand to others except he had received satisfaction from them it is not his own Intromission 2ly Warrand or Command is only Probable by Writ or Oath and no way by Presumption upon such Circumstances which Presumptions are also taken off by others more pregnant viz. That these Woods were cutted by Persones in Power and Interest in the Countrey who had no Relation or Interest in the Defenders Father whom he was not able to stop or hinder and most part thereof was Clandestinly cut and stolen away by meaner Persons It was answered for the Pursuer that he being Restored Succeeds in place of the Estates and as what is done by a negotiorum gestor without Warrand is profitable for these for whom he negotiats so must this be which was done by the Estates As to the Act of Indemnity the meaning thereof can be no more then that Parties who Acted shall be in no worse case then they would have been with that Party whom they followed As to the second member the Pursuer answered that what was done by others by the Defenders Fathers Commission must be his Intromission seing it is all one to do by himself or by another and seing it cannot be called Omission it must be Intromission 2ly Though Command or Warrand is ordinarly Probable by Writ or Oath Yet there are casus excepti as whatsoever is done for any Party in his presence is by all Lawyers said to be ex mandato inde oritur actio mandati non negotiorum gestorum so that the presence or tollerance of a person not only having Power but being oblidged for Diligence must much more infer his Power or Warrand And albeit he was not alwayes present yet the Deeds being publick and near the place of his abode it is equivalent The Lords inclined not to sustain the first member both in respect of the Act of Indemnity which bears in it self to be most amply extended and in respect that the Pursuer had no Right to the Personal Obligation or Diligence but as to the second member the Lords were more clear as to what was done in the Defenders Fathers presence but in respect it was more amply proponed The Lords before answer ordained Witnesses to be Examined by the Pursuer whether or not the Woods were publickly cutted and whether or not Lambertoun was at any time there present and apply'd any thereof to his own use and Witnesses also for the Defender to be Examined whethâ—r a part was cut Clandestinly and other parts by persons having no relation to Lambertoun and to whom he used any Interruption Eodem die THis day there being a Query formerly given by the Lord Thesaurer whether or not there should be a Processe of Forfaulture intented against these who rose in the late Rebellion before the Justice General so that the Justice might proceed against them though absent by putting the Dittay to the Tryal of an Assyze and taking Witnesses thereupon and upon Probation to proceed to the Sentence of Forfaulture or whether Probation in absence could not be admitted but before the Parliament There were Reasons given with the Query for the affirmative viz. That there was a special Statute for Forfaulture of Persons after their death in which case they were absent multo magis when they were living and contumacious 2ly Because by the Civil Law albeit Probation especially in Criminals cannot proceed unlesse the Defender be present Yet the chief Criminal Doctors except the case of lese majesty as Clarus Farenatius and Bartolus 3ly That the Parliament proceeds to the Forfaulture in absence not by their Legislative Authority but as a Judicature and what is just by them it is just also by the Justice The Lords demured long to give their Answer upon thir Const â—erations that by Act of Parliament it is Statuted that Probation shall be only led in presence of the Party and that there had never
as the King of Sweden is not to be Retrenched nor Limited but by the exceptions contained in it self and in it there is no such exception but generally the Pass as is there qualified excludes all search or question of Men or Goods which is also the Kings meaning which appears expresly by the foresaid Letter which albeit it could not Derogat from a privat Right yet may well clear the dubious interpretation of a Treaty and is sufficient in this Case where the King alone dat leges bello The Lords upon consideration of the last Dispute did ordain the President to state the Case and represent it by the Secretary to the King both as to the meaning of the Treaty and the Letters and specially whether Counterband Goods not being the Growth of nor Loaden in Sweden were priviledged to the Swedes thereby November 6. 1667. THe said Cause being again called the President presented the Lord Secretaries Letter bearing the Kings Answer that the Treaty or Letter did not warrand the Swedes to carry Counterband Goods to the Countrey of his Enemies except their own Countrey Commodities Loaden within their own Dominions Whereupon The Lords sustained the Admirals Decreet as to that Reason of Reduction but gave the Parties a time to be further hear'd before Exâ—ract Hendâ—â—son contra Henderson November 14. 1667. HEnderson insisted in the Cause mentioned Ianuary 31. 1667. which was again fully Debated above and it was alleadged that the Writ in question was a Testament or at least donatio mortis causa or at least a Conditional Donation to take effect only in case the Disponer died before he returned so that his simple returning without any further purified the Condition and made it null The Lords having considered the Writ found that albeit it was not formal yet it had the Essentials of a Disposition and Donation interviros and that it was not null by the Disponers return unlesse he had revocked it for they found that the words being that he Nominat and Constitute Henderson his Heir and Successor and Donatar irrevockably to certain Tenements in particular with power to him in case the Disponer returned not to enter by the Superior and Enter to Possession and transferring all Right he had in that case which words Constituting him Donaâ—ar they found were Dispositive words and Effectual and the adding of Heir and Successor could not Evocuat the same and found the Condition of his not returning was not annext to the Dispositive words but to the Executive Clause of Entering by the Superior and taking Possession which was cleared by the Posterior Reservation to recal it after his return It was further offered to be proven that the Disponer not only returned but recalled the Disposition in so far as he had it in his own hands and power after his return It was answered that it was no way relevant unlesse the Delivery of it hoc intuitu were proven for he might have had it in his hands upon many other accounts It was answered that the very having of the Writ did presume that it was Delivered unlesse the other Party would offer them to prove that it came in his hands alio nomine Which the Lords found Relevant Thereafter it was alleadged that as the Disponers having of it presumed Revocation so the Acquirers having of it hereafter presumed a passing from that Revocation and a Reviving of the Right and now it is in the Acquirers hands as to this point the Parties did not Debate but it occurred to the Lords that the Disponers having might be sufficient to infer Delivery but would not infer that the Acquirers having thereafter would presume passing from the Revocation because the Clause reserving to the Disponer a power to Recal made the naked Recovery of the Writ sufficient to him and did annul it but it was more dubious what was requisit to revive it whether naked Having or expresse Delivery hoc intuitu or if something were not requisite in Writ and therefore before answer to that point The Lords ordained the Pursuers who now had the Writ to condescend and prove how they got it Iames Maxwel contra Adam Maxwel November 15. 1667. JAmes Maxwel and the Umquhil Lady Hiltoun his Spouse having Disponed their Land to Adam Maxwel Iames now pursues a Declarator of Trust whereupon the Lords formerly ordained Compt and Reckoning that it might appear what Adam had Expended upon the accompt of the Trust. In which Accompt Adam gives up certain Bonds by Iames whereunto he had taken Assignation against which he could alleadge no more then what he truely payed out in respect the time of the Assignation he was intrusted by the Pursuer The Defender alleadged non relevant unlesse it were alleadged he was intrusted to Compone for the Pursuers Debts but if it was only a Trust of his Land and not a general Trust of all his Affairs it could not reach their Bonds and albeit upon the account of Friendship or Charity the Defender might be desired to take no more then he gave there lyes no Obligation in Law or Equity upon him so to do but he may demand what the Creditors his Cedents or any other Assigney might demand The Pursuer answered that the intent of his Trust in his Lands being to preserve him from the rigour of his Creditors it was against that Trust to the Trusty to use the same rigour himself Which the Lords found relevant and ordained Adam only to get allowance of what he payed out Laird of Culteraes contra Silvester Chapman November 16. 1667. CVlteraes having pursued Silvester Chapman for payment of a Bond of two hundreth Merks subscribed by the initial Letters of the Defenders Name The Lords sustained the pursute the Defender being in use thus to subscribe and that he did subscribe this Bond the Notar and three Witnesses insert being Examined they proved the Defenders custom so to subscribe but as to the Actual subscribing of this Bond two were affirmative and two were negative denying their subscription Deponing that they remembred not they saw the Defender subscribe The Pursuers own Oath was also taken ex officio who affirmed the truth of the subscription and that the Witnesses insert were present the question arose whether the verity of the subscription were proven The Lords found that it was sufficiently proven the Pursuer being a man above all suspition and no improbation proponed Chalmers and Gardner contra Colvils Eodem die CHalmers and her Children pursues Hugh Colvil and others for Ejecting them out of their House and Lands of Lady kirk and spuilzy of their Goods therein the Lybel being admitted to Probation not only a Witnesse Deponed that he saw the Defender open the Pursuers Doors they being absent in Edinburgh and the Keys with them and cast out their Goods and enter in Possession who was admitted cum nota as being Interessed as Tennant and concurring with these Pursuers in a pursute with the same Defenders before the Council upon the
and preferred the Pursuer in probation thereof and in respect of so unwarrantable a way of Disposing they would neither allow Retention nor Compensation but left the Defender to make his Application to the Exchequher for his payment Margaret Pringle and her Spouse contra Robert Pringle of Stichel November 29. 1667. MArgaret Pringle pursues an Exhibition of all Writs granted by or to her Umquhil Brother ad deliberandum It was alleadged no Process for Writs granted by him to Strangers except such as were in his Family conform to the late Decision Schaw of Sornbeg contra Tailzifare which they declared they would follow as a Rule The Pursuer answered that he Insisted for Exhibition of such Writs as were granted by the Defunct to any person which were in his possession or Charter Chist the time of his Death Which the Lords Sustained Duke Hamiltoun contra the Laird of Allardine December 6. 1667. THe Duke of Hamiltoun having Charged the Laird of Allardine for the six Terms Taxation Imposed anno 1633. He Suspends on this Reason that four Terms were payed by the Earl of Marishal Sheriff which must Exoner him and all other persons of the Shire and is instructed by the Books of the Clerk to the Taxations It was answered that the Reason is not relevant because the Sheriffs did ordinarly Lift a part of all the six Terms and albeit the Sheriff compleated the first four yet he might have done it out of his own Money or out of the other two and so when the King Charges for the other two the Sheriffs Discharges will Exclude him so that he shall not want the first four but so much of the other two and therefore unless the Suspender can produce a Discharge of the first four the general Discharge granted to the Sheriff cannot Liberat him It was answered that when the King or his Collector Charges the Collectors general Discharges cannot but meet himself and whether the Suspender had payed or not the general Collector cannot seek these Terms twice It is true â—f the Sheriff were Charged the Suspender behoved to show to him his Discharge but the Earl of Marishal Sheriff could not Charge the Suspender for the Taxation of these Lands because the Earl of Marishal was both Sheriff and Heretor at that time and Sold the Lands to the Suspender with Warrandice The Lords found the general Discharge sufficient to the Suspender against the general Collector or any authorised by him Earl of Lauderdale and Iohn Wachop contra Major Biggar December 7. 1661. THe Earl of Lauderdale and Iohn Wachop Macer pursue a Reduction and Improbation of the Rights of the Lands of Hill against Major Biggar and craved Certification contra non producta The Defender alleadged no Certification because he had produced sufficient Rights to exclude the Pursuers Title viz. Infeftments long prior to the Pursuers Right It was answered that this could not stop the Certification unless the Defender would declare he would make use of no other Rights in this Instance otherwise the Pursuers behoved to Dispute with him upon every single Writ he produced and behoved to Dispute the Reasons of Reduction with him before the Production were closed The Pursuer answered that his alleadgeance as it is proponed was alwise Sustained without declaring that he woâ—ld make use of no more The Lords found the Defenses as proponed relevant and ordained the ordinar to hear the Parties Debate upon the Rights produced and if these should not prove sufficient the Lords thought that the Defender might be forced at the next time to produce all he would make use of in this Cause that so the Pursuers were not delayed upon Disputing upon every single Writ Earl of Cassils contra Sheriff of Galloway December 10. 1667. THe Earl of Cassils pursues the Sheriff of Galloway and the Tennents of Achnotorâ—ch for abstracted Multures and Insists on this ground against the Sheriff that he being Heretor of the Lands and Vassal to the Pursuer did command them to leave the Pursuers Miln and come to his own Miln and so was Liable The Defender alleadged that this Member of the Summons is not relevant because any man may desire any persons he pleases to come to his Miln and there was never a pursute Sustained against any others then the Abstracters and not against these to whose Miln they came 2dly It is not Libelled that the Defender got a greater Duty upon the Tennents coming to his Miln and although he had it were not relevant 3dly By the Defenders Rights he is Liberat of all Multures except Knavship and Bannock which is only the Hire due to the Millers for their Service and there is no obligement upon him to cause his Tennents come to the Miln It was answered the Pursuer offered to prove the Defender had gotten a greater Duty upon the Tennents coming to his miln and albeit the Astriction be only of Knavship and Bannock that is not alone due for the Millers service but there is a profit thence arising to the Master that the Sheriff being Heretor and Vassal albeit he be not personally obliged to cause the Tennents come to his Miln yet the Lands being Astricted by his Infeftment it was his fault to remove them The Lords Assoilzied from that Member of the Lybel and found it not relevant against the Heretor but only against the Tennents Mr. Rodger Hog contra the Countess of Home Eodem die MAster Rodger Hog having Appryzed certain Lands from the Laird of Wauchtoun in Alcambus which were Sold to Wauchtoun by the Earl of Home with absolute Warrandice Upon which Warrandice there was Inhibition used whereupon Mr. Rodger pursues Reduction of an Infeftment of Warrandice of these Lands granted by the Earl of Home to my Lady in Warrandice of the Lands of Hirsil and that because the said Infeftment of Warrandice is posterior to the Inhibition The Defender alleadged that there could be no Reduction upon the Inhibition because therewas yet no Distress which with a Decreet of the Liquidation of the Distress behoved to preceed any Reduction and albeit there might be a Declarator that my Ladies Infeftment should not be prejudicial to the Clause of Warrandice or any Distress following thereupon yet there could be no Reduction till the Distress were Existent and Liquidat The Pursuer answered that a Reduction upon an Inhibition was in effect a Declarator that the posterior Rights should not prejudge the Ground of the Inhibition for no Reduction is absolute but only in so far as the Rights Reduced may be prejudicial to the Rights whereupon the Reduction proceeds The Lords Sustained the Reduction to take effect so soon as any Distresse should occur Mr. Iames Straiton contra the Countess of Home Eodem die MAster Iames Straiton Minister of Gordoun having obtained Decreet conform upon an old Locality Charges my Lady Home for payment who Suspends and alleadges that she must be liberat of a Chalder of Victual contained in the
Writ that the Instructions were retained in his hand Iohn Auchinleck contra Mary Williamson and Patrick Gillespy December 18. 1667. MAry Williamson Lady Cumlidge having taken Assignation to several Debts of her Husbands Appryzed the Estate from her Son and in September 1662. Dispones the Estate to her Eldest Son reserving her own Liferent of the Maines and Miln and with the burden of five thousand Merks for Iohn Auchinleck her second Son at the same time her eldest Son grants a Tack to Patrick Gillespy bearing expresly that because he was to Marry his Mother and to possesse the Mains at the next Term therefore he Sets the Land for an inconsiderable Duty for a year after his Mothers Death there was no Contract of Marriage betwixt the said Mary and the said Patrick but they were Married in December thereafter and he possessed it till this time and now Iohn Auchinleck pursues for Mails and Duties bygone and in time coming as having Assignation to the Reservation granted by his Mother It was alleadged for Patrick that as for bygones Absolvitor because he was bonae fidei Possessor by vertue of the Reservation in favours of his Wife belonging to him jure mariti 2dly The Assignation made to the Pursuer was most fraudulent being granted at the time of the Agreement of Marriage betwixt the said Patrick and his Wife and there being a Provision granted to the Pursuer of five thousand Merks the said Mary did most fraudfully at that same time Assigne the Reservation and so left nothing to her Husband but a woman past sixty years It was answered that where there is a solemn Contract of Marriage and Proclamation Deeds done thereafter cannot prejudge the Husband but here there is neither Contract nor Proclamation alleadged and albeit there had been fraud in the Mother the Son being a Boy and absent was no way partaker thereof and cannot be prejudged thereby It was answered for the Defender that he hath a Reduction depending of this ex capite fraudis and if the Wife could do no fraudful Deed after the Agreement of Marriage it will thereby be null whether the Son was partaker or not unless he had been an Acquirer for an Onerous Cause and albeit there was no Contract of Marriage in Writ yet the foresaid Tack evidences an Agreement of Marriage At Advising of the Cause the Lords thought this conveyance a very Cheat and it occurred to them that the Marriage and jus Mariti is a legal Assignation and there having been nothing done by the Son to intimat this Assignation or to attain Possession thereby before the Marriage the Husband by the Marriage had the first compleat Right and was therefore preferable and likewise they found the Husband free of bygones as bonae fidei Possessor any found that the Reason of Reduction upon fraud after the Agreement of the Marriage evidenced by the Tack bearing the Narrative of the intended Marriage of the same date with the Pursuers Right and the Disposition to the eldest Son relevant to Reduce the Pursuers Assignation in so far as might be prejudicial to the Husband Sir Thomas Nicolson contra the Laird of Philorth Eodem die UMquhil Sir Thomas Nicolson having pursued the Laird of Philorth before the late Judges as representing his Grand-father who was Cautioner in a Bond for the Earl Marishal there being an Interlocutor in the Process Sir Thomas dying his Son transfers the Process and insists The Defender alleadged that the Bond was prescribed as to his Grand-father by the Act of Parliament King Iames the sixth anent prescription of Obligations bearing that if no pursute were moved nor document taken within 40 years that these Bonds should prescribe Ita est there was no pursute nor document against the Defenders Grand-father by the space of 40. years and therefore as to him it was prescribed The Pursuer answered that he opponed the Act of Parliament and Interlocâ—tor of the Judges in his favours and offered him to prove that the Annualrent was payed by the Principal Debtor within these 40. years and his Discharge granted thereupon which was sufficient document and the Pursuer not having been negligent nor at all bound to pursue or seek the Cautioners when he got Annualrent from the Principal the Obligation of both stands entire The Defender answered that the Principal and Cautioners being bound conjunctly and severally albeit in one Writ yet the Obligations of each of them was a distinct Obligation and as the Cautioner might be Discharged and yet the principal Obligation stand so the prescription is a legall Discharge presuming the Creditor past from the Cautioner seing he never owned him for 40. years which is most favourable on the part of Cautioners who otherwise may remain under unknown Obligations for an hundreth years The Pursuer answered that albeit there might have been some appearance of reason if the Persons obliged had been all Co-principals or bound by distinct Writs yet whether Writ and Obligation is one and the Cautioners Obligation thereby but accessory and the Creditor no way negligent there is no ground of such a presumption that the Creditor past from any Party obliged and the Obligations mentioned in the Act of Parliament is not to be meaned according to the subtility of distinction of different notions of Obligations but according to the common Style and meaning of Obligations whereby one Writ obliging Principal and Cautioners is always accompted an Obligation which is sufficiently preserved by payment obtained from the Principal The Lords adhered to the former Interlocutor and repelled the Defense of prescription in respect of the Reply of payment made of the Annualrents made by the Principal Robert Dâ—by contra the Lady of Stonyhil Eodem die THe Lady Stonyhil being Provided in Liferent to an Annualrent of 2800. Merks her Son pursues her for an Aliment both upon the Act of Parliament in respect that the Defuncts Debt was equivalent to all the rest of the Estate beside her Liferent and also super jure naturae as being obliged to Aliment her Son he having no Meaâ—â— and she having a plentiful Provision The Lords in consideration of the newnesse of the Case and that the Debts that might exhaust the Estate were most part personal and no Infeftment thereon before or after the Defuncts death recommended to one of their Number to endeavour to agree the Parties Adam Gairns contra Elizabeth Arthur December 19. 1667. ADam Gairns as Assigney Constitute by Patrick Hepburn pursues Elizabeth Arthur for the Drogs furnished to her and her Children at her desire It was alleadged Absolvitor because she was and is cled with a Husband and the Furniture could only oblige him but not her It was Replyed that she had a peculiar Estate left by her Father wherefrom her Husband was secluded and which was appointed for her Entertainment that her Husband was at that time and yet out of the Countrey and hath no Means The Lords found the Reply Râ—levant Arcâ—ibald Wilsâ—n
when ever he could be found yet the Law of Nations hath for the freedom of Trade abridged it to the immediat return of the same Voyage because quarrels would be multiplied upon pretence of any former Voyage Parkman having raised Reduction of the Admirals Decreet insists on these grounds First That by the Kings proclamation Denuncing the War it is evident that the King gives only Command to seise upon Ships having in them Enemies Goods or Counterband Goods without any mention of seising them in their return which would destroy the freedom of all Trade for upon that pretence every Ship that were met with at Sea might be brought up and therefore the Kings Proclamation did justly and humanly Warrand the seisure of Ships only when the Enemies Goods or Counterband Goods is found Aboard in which case for most part the cause of seisure is sensible to the Eye wherewith there was also produced a Testificat from Judge Ienkins Judge of the Admirality Court of England by the Kings Warrand upon the Petition of the Kings Resident of Sweden wherein he having advised with the Kings Advocat general who dayly attended that Court declareth that none of them remembers that in this War any Neuter were made Pryze in their return with the product of Enemies Goods and that he knew no Law nor Custom for the same 2dly There was produced the Treaties betwixt the King and the Crown of Sweden bearing that the Swedes should be made Pryze carrying Enemies Goods or Counterband Goods si deprehendantur It was also answered to the Reasons of Adjudication that the Stile of a Commission not granted by the King immediatly but by the Admiral could be no ground of Adjudication of Friends and Allies who were not obliged to know the same or what was the Tenor of the Admiral of Scotlands Commissions but were only obliged to take notice of the Law and Custom of Nations and of the Kings Proclamations of War and as to the Admirals Commission and Decreet thereupon in Anno 1627. It could not evidence the Custom of Scotland being but a Decreet in absence and upon a Lybel bearing not only the carrying of Counterband before in that Voyage but having actually Aboard Enemies Goods the time of the seisure which Lybel is found relevant by the Admiral but it appears not that he would have found it relevant alone upon the product of Counterband much lesse that that was proven and in Decreets in absence the Lords themselves suffers Decreets to pass with far less consideration and ofttimes of course so that it were strange to fortifie the Admirals Decreets that are now quarrelled after full hearing upon an Decreet of the Admirals in absence It was answered for Captain Allan that the Pursuer could not enjoy the benefit of the Swedish Treaty because he had transgrest the Treaty and served the Kings Enemies and as to the Testificat of Judge Ienkins or Custom of England this being a distinct Kingdom is not Ruled by the Custom of England and Judge Ienkins Testificat was impetrat by the Pursuer and not upon any Commission or proposal made by the Lords and the case therein mentioned is only anent the seisures in the return with the product of Enemies Goods and says only that they do not remember that ever the Case was decided there but says not that the Courts of Admirality had found that upon any Plea or Dispute that Ships could not be taken unless they had Aboard Counterband or Enemies Goods The Lords having formerly in this Cause desired to know the Kings Pleasure whether by the Swedish Treaty which maketh far fewer things Counterband then what are such by the Law of Nations and by which Tar is not Counterband the Swedes might Loaden Tar in Norway not being their own Growth and carry it to the Kings Enemies The King returned answer negative in which the Lords acquiesced and as to the present Dispute The Lords did not find the grounds alleadged for the Privatâ—er relevant or sufficient to instruct the Custom of Scotland or the Rule of the War and had litle respect to Judge Ienkins Testimony and therefore were not clear to approve the Adjudication but before answer did declare that the Lords by their own Commission would inquire in the Custom of Nations concerning the return of Counterband or Enemies Goods both by Commissions direct to England and other places Captain Strachan contra Morison February 22. 1668. CAptain Srachan pursues the Heirs of Umquhile George Morison before the Admiral for a Ship and Goods mâ—dâ—ed with wrongously by George and others in Anno 1638. They raise Reduction on this Reason that there was no Probation but one Witness and Captain Strachans Oath taken in supplement The Lords having considered the Probation in relation to the Ship found it sufficiently proven that Captain Strachan was an Owner of an eight part of the Sâ—â—p but found that the value thereof was not proven and seing Morison and the other partners sold the Ship after they had long made use of her without Strachans consent they found that Strachans Oath in litem ought to be taken as to the value and would not put him to prove the same after so long time and for the profits thereof ordained him Annualrent since he was dispossest This question arose to the Lords whether there being three Partners beside Captain Strachan who all medled whether Morison should be lyable in solidum or only for his third part in which the Lords found the Ship being corpus indivisibile and all the Partners in a Society and that Captain Strachan being absent in the Kings Service from the time of their medling to the Kings return and the other Parties in the mean time becoming insolvent The Lords found George Morison lyable in solidum for the eight part of the Ship but as to the Wines and others that were in the Ship whereanent there was no co-partinery proven and but one Witness of George Morisons Intromission and Captain Srachans own Oath in supplement The Lords found the same not sufficient and yet allowed Captain Strachan in fortification of the Decreet to adduce further probation Gavin Cochran contra 〈…〉 Eodem die GAvin Cochran as Donator to the Recognition of certain Land holden Waird of my Lord Cochran pursues the Vassal as having Alienat the Major part and also the Subvassal to hear and see it found and declared that the Lands had Recognosced by the Alienation made by the Vassal so the Subvassal It was alleadged for the Subvassal that he was Minor and therefore During his Minority non tenetur placitari super haereditate paterna It was answered that that holds only in Disputing the Minors Rights but is not sufficient against the Obligation or the Delinquence of the Defunct 2dly The Party principally called in this Process is the Vassal who is Major and whose Fee falls to the Superior by his Alieanation and the Subvassals Right falls only in consequence so that no priviledge of
of Inglistoun who had Married one of his Daughters and the Heirs of that Marriage whereby he Disponed his Estate of Crawfoordstoun to them with a Bond of 20000. pounds the intent whereof seems to have been that they might have Appryzed to make the Disposition effectual and she and William Lowrie having Deponed acknowledged that the Writs and Charter-Chist were carried out of Crawfoordstoun to Englistoun but Deponed that they knew not whether thir Writs were amongst them or not or whether they were formerly delivered to Inglistoun himself who is now dead There was in the Exhibition Libelled a Declarator that the Writs were null as not delivered and that being unwarrantably taken out of the Defuncts Charter-Chist after the Lords Order to the contrair they ought to be put back and Sequestrat till the Rights of Parties were Discust The Pursuers did now insist in this last member to the which it was answered that the Writs being Exhibit to the appearand Heirs ad deliberandum and they having seen them they could have no further interest but the Lady Crawfoordstoun Tutor to her Oy Inglistoun ought to have them up again who produced them neither is it nor can it be instructed that these Writs were unwarrantably taken out of the Charter-Chist after the Lords Warrand seing their Oaths bore that they knew not whether these were in the Charter-chist or not and therefore being a Pupils Writs in his favours produced by his Tutrix they cannot be taken from him or Sequestrat unless the unwarrantable medling therewith were proven 2dly By a Disposition of the Moveables to the Lady produced granted by the Defunct it bears a Delivery of the Keys of the Charter-Chist to her to be Delivered to Inglistoun with the Charter-Chist which is equivalent as if they had been Delivered to Inglistoun himself and she was content to be Enacted to produce them when ever the Lords found cause It was answered that the Lords Warrand being anticipat and the bulk of the Writs in the Charter-Chist carried away it must be presumed that these Dispositions and that Bond was amongst the rest and so must be returned in statu quo The Lords found this alleadgance Relevant unless the Defenders would instruct that these Writs were not in the Charter-chist the time of the Order but out thereof in Inglistouns hands and yet they allowed the Parties presently to Dispute whether albeit these Writs were in the Charter-Chist Inglistoun or his Tutrix should have them up or if they should remain Sequestrat Mr. Iames Drummond contra Stirling of Ardoch Ianuary 23. 1669. MR. Iames Drummond being Donator to the Escheat of the Laird of Glenegies pursues Exhibition and Delivery of a Bond granted by George Mushet to Iames Henderson containing 2000. merks principal and by him Assigned to umquhil Glenegies and thereby falling under his Escheat and the Bond being produced by Ardoch the Donator craves the same to be Delivered to Ardoch It was answered by Ardoch that the Bond ought not to be Delivered to the Donator because it cannot belong to him in respect that Mushet who by the Assignation became Debitor to Glenegies had two Bonds granted by him to Glenegies containing 3000. merks wherein Ardoch is Cautioner whereby this Bond of 2000. merks due to Glenegies was compensed long before Glenegies Rebellion It was answered for the Pursuer that Compensation is not Relevant unless it had been actuallie proponed in Judgement or Extrajudiciallie stated by the Parties offering and accepting the Compensation 2dly That the alleadgance is no wayes Relevant against the Donator who has Right to the Debts due by the Rebel 3dly Ardoch had no Interest to alleadge the Compensation which could only be proponed by Mushet the Creditor and not by Ardoch who is Cautioner to him The Defender answered that Compensation is Competent ipso jure from the time that the sums be mutuallie due by the Debitor and Creditor in the same way as if they had granted mutual Discharges each to other and therefore when an Assigney Pursueth or Chargeth Compensation is always Sustained against him upon Debts due by the Cedent before the Assignation albeit the Compensation was not actually stated before the same neither is the Donator here in better case then an Assigney so that when he pursues Mushet Debitor to the Rebel Mushet may alleadge Compensation upon the like Debt due to him by the Rebel before the Rebellion and the Defender hath good Interest to propone the Compensation because he is Cautioner to Glenegies for Mushet and if Mushet be forced to pay the Donator without allowing Compensation Ardoch will be necessitat to pay Mushet to whom he is Cautioner and therefore hath good Interest to propone that by the concourse of the two Debts they are both extinct and he is not obliged to Deliver up to the Donator the Bond Constituting Mushets Debt The Lords found the Alleadgance proponed for Ardoch Relevant and Competent and that Compensation was Relevant against the Donator upon Debts due by the Rebel before Rebellion Sir Iohn Weims contra Farquhar of Towley Eodem die SIr Iohn Weims having Charged Farquhar of Towley for the maintainance of his Lands deu in Anno 1648. He Suspends on this Reason that by the Act of Parliament 1661. appointing this maintainance to be uplifted by Sir Iohn Weims singular Successors are exeemed ita est in one part of the Lands he is singular Successor to Sir Robert Farquhar of another part he has a Disposition from his Father for Sums of Money particularly exprest in the Disposition It was answered to the first That the Exemption is onlie in favours of singular Successors who had bought Lands the time of the Act ita est Sir Robert Farquhars Disposition is after the Act neither doth it appear that a competent price was payed therefore and as for his Fathers Disposition though prior to the Act yet the Narrative thereof betwixt Father and Son will not instruct the Debts unless it be otherways instructed nor can it be made appear to be a just price The Lords found that the Exemption could not extend to singular Successessors acquiring after the Act for if at that time the Lands were in the hands of him who was Heretor in Anno 1640 or his Heirs nothing ex post facto done by them can prejudge the Right Constitute by the Act which doth not bear an exemption to singular Successors who should acquire but only to these who had acquired They did also Ordain the Defender to instruct the Cause onerous of his Fathers Disposition but would not put the Suspender to Disput the Equivalence of the price unless it were instructed that the Dispositions were Simulat there being a great latitude in prices according to the pleasure of Parties Alexander Chisholme contra Lady Brae Ianuary 26. 1669. ALexander Chisholme having apprized certain Lands from the Heirs of Sir Alexander Frazer of Brae and thereupon insisting for Mails and Duties Compearance is made for the Lady Brae Sir
for Debt due to him by Cheisly and he being nowayes particeps fraudis Cheislies Fraud or Circumvention cannot prejudge him for albeit Extortion vi majori be vitium reale that follows the Right to all singular Successors yet fraud is not and reaches none but participes fraudis both by the Act of Parliament 1621. and by the civil Law L. It was answered for Scot that albeit it be true that an Assigney for an Oâ—erous Cause cannot be prejudged by the Oath of his Cedent and consequently by no Circumvention probable by his Oath yet in Personal Rights an Assigney is in no better case then the Cedent nisi quoad modum probandi but what is relevant against the Cedent and competent to be proven either by Writ or Witnesses is competent against the Assigney so that the Circumvention against Cheisly being inferred by pregnant Evidences and Witnesses and not by his Oath it must be effectual against Thomson whose Name being filled up by Cheisly is in effect Cheislies Assigney for so all blank Bonds are commonly found by the Lords to have the same effect with an Assignation 2dly Assignies without an Onerous Cause even as to the Oath of the Cedent or any other consideration are in no better case nor the Cedent but here there is no Onerous Cause appears for which Cheisly transmits this Right to Thomson for the Bond â—ears not that for Sums of Money due by Cheisly to Thomson or any other Cause Onerous on Thomsons part that Scot should be obliged at Cheislies desire to pay Thomson but only that because Cheisly had Assigned a Process to Scot therefore Scot becomes obliged to pay to Thomson 3dly As there is no Cause Onerous instructed on Thomsons part so his own Oath de calumnia being taken renders the matter most suspitious by which he acknowledges he got the Bond from Cheisly and that Cheisly was not then his Debitor for so great a Sum as in the Bond but that by payments made to him and for him thereafter he became his Debitor in an equivalent Sum but Depones that he hath nothing to instruct the Debt nor no Note thereof in his Compt Book though he be an exact Merchant and Factor so that there is no Evidence or Adminicle of an Onerous Cause instructed And lastly Albeit Parties getting blank Bonds bearing borrowed Money from the blank Person whosoevers Name is filled up the Bond then bears the Sums borrowed from him whose Name is filled up and cannot be taken away but by his Writ or his Oath but this Bond bears only a Process Assigned by Cheisly and no borrowed Money or other Cause by Thomson and Thomson living in the same Town with Scot whom he knew and is commonly known to be a simple Person and Cheisly a subdolous he ought before accepting of the Bond to have acquainted Scot of the filling up of his Name and if he had any thing to say and cannot now pretend that he acted bona fide but either must be in dolo or in lata culpa quae dolo aequiparatur The Lords found that having considered the Tenor of the Bond and Thomsons Oath Thomson was in the same condition as to the relevancy and probation of the Reasons of Circumvention against Cheisly and therefore found the Libel Relevant against them both to annul the Bond the Apprizings and Infeftment and all that had followed thereupon Naper contra Gordon of Grange Feb. 12. 1670. IOhn Naper as Representing his Father did Pursue William Gordon of Grange as Representing Hugh his Father for payment of 2000. Merks due by the said Umquhile Hugh his Bond and upon the said Williams Renuncing to be Heir obtaind Adjudication of the Lands of Grange and others in so far as might belong to the said Umquhile Hugh his Debitor his Heirs and thereupon did Pursue the Tennents for Mails and Duties In which Action it was alleadged for William Gordon now of Grange that he stands Infeft by Disposition from the said Umquhile Hugh Gordon of Grange his Father for Onerous Causes and Sums of Money undertaken and payed for his Father which was found Relevant and to evite the same the said Iohn Naper raised Reduction of Grange's Right granted by his Father ex capite Inhibitionis raised against his Father upon the said Bond before the Disposition made to this Grange which Inhibition being produced this day fourtnight it was alleadged for Grange that the samine was null because the Executions buir not a Copy to have been lest at the Mercat Cross at the publication of the Inhibition which the Lords found Relevant and now the Pursuer insisted on this Reason that the Disposition though it buir Onerous Causes yet being after the Contracting of his Debt by a Father to a Son the Narrative bearing the Cause thereof is not Probative against a third Party but the same must yet be instructed Which the Lords Sustained and ordained Grange to produce the Instructions thereof William Lowry contra Sir Iohn Drummond Feb. 18. 1670. UMquhile Sir Robert Drummond of Meidup having Disponed the Lands of Scotstoun to Sir Iohn Drummond of Burnbank Mr. Iohn Drummond Writer in Edinburgh his Grand Nevoy intending to Reduce that Disposition as on Death-bed grants a Bond to William Lowry of 12000. Merks who thereupon having Charged the said Mr. Iohn to enter Heir in special to the Lands of Scotstoun to the said Sir Robert his Grand Uncle Apprizes from him all the Right of the Lands that might be competent to him if he were entered Heir and thereupon raises Reduction of Sir Iohn his Right as being granted by Sir Robert on Death-bed in prejudice of his nearest Heirs in whose place the Pursuer now is by the Apprizing It was alleadged for the Defender no Process upon any Charge to enter Heir against Mr. Iohn Drummond because he is not the nearest appearand Heir but has an elder Brother living The Pursuer answered that the said elder Brother had gone out of the Countrey 18. years agoe and was commonly holden and repute Dead likeas he produced a Missive of one Creiâ—htoun his Commerad in the War abroad bearing the Circumstances of his Sickness Death and Burial Dated Iuly 6. 1667. It was answered that semel vivus semper presumitur vivus nisâ— contrarium probetur and what was alleadged could be no probation but some probabilities of Death The Pursuer answered that the brokard is but presumptio juris and not presumptio juris de jure and therefore only transâ—ert onus probandi which Probation may be valid without Witnesses by such adminicles as the Lords shall find sufficient which are here sufficiently alleadged viz. long Absence common Fame and a Missive Letter The Lords found that eighteen years Absence and being holden and repute Dead was sufficient Probation to take off the presumption of Life unless a stronger Probation for the Parties being on Life were showen then the naked presumption thereof Lauchlen Lesly contra Guthry Feb. 19. 1670. LAuchlen
permitted to alleadge the Lands in question to be Part and Pertinent of his other Lands whereof he shew a full Progress and alleadged a continual Possession by doing all Deeds of Property that the Subject was capable of and the Pursuer alleadging that these Lands were severally kend and known from all the Defenders Lands contained in the said Progress and that he and his Predecessors had exercised all acts of Property that could be done in the case of a Forrestry such as the Lands in question were and that after the Defenders alleadging on a several Infeftment by the foresaid Seising and so acknowledging these Lands to be separâ—â—â—m tenâ—mentum he could not return to alleadge Part and Pertinent so considerable a tract of Ground six or seven Miles long yet the Lords would prefer neither Party to the probation but before answer ordained either Party to adduce Witnesses anent their Possession and the several specialities by them alleadged that by the probation the Lords might see the just Interest of either Party which might resolve into a promiscuous Commonty or into a Property to the one and a Pasturage or other Servitude to the other Marion Dods contra Lawrence Scot. Feb. 16. 1671. BY Contract of Marriage betwixt Iames Scot and Marion Dods Marion is obliged to pay in Tocher a thousand pound to the said Iames at the next Candlemass and the said Iames is obliged to imploy the same to him and her in Conjunct Fee and to the Heirs of the Marriage which failzing to her Heirs and Iames having Died without Children the said Marion pursues Lawrence Scot as his Heir to imploy the Sum conform to the said obligement who alleadged Absolvitor because the Pursuer has yet the Tocher in her own hand unless she can show a Discharge It was answered First That the Parties having lived together 22. years it must be presumed that the Husband was payed and had the Custody of the Discharge 2dly The Husband by his Testament acknowledges that the Sum was payed It was answered that this written Obligation cannot be taken away by such a presumption and the Assertion of the Defunct in the Testament has been procured by the Wifes importunity in her Husbands weakness and however cannot prejudge the Heir and can import no more then as legatum liberationis which can only affect the Deads-part of the free Geir The Lords found the presumption with the acknowledgement in the Testament a sufficient payment of the Tocher against all Parties having interest William Gordon contra Sir Alexander Mcculloch of Ardual February 17. 1671. WIlliam Gordon as Donator to the Recognition of the Barony of Cardines by allienation of the Major part thereof pursues a Declarator of the Recognition against Sir Alexander Mcculloch who stands now Infeft therein who alleadged no Process because the Pursuer produces no Charter to show the Lands to hold Waird neither doth he produce the Infeftments Libelled by which the Recognition is alleadged to be procured and if he shall get a Term to prove and so Litiscontestation be made the Defender will either be excluded from his Defenses which he cannot propone or know before he see the Infeftments or otherwise two Litiscontestations may be in the same Cause by admitting of exceptions after the Term and albeit these Infeftments be not the Pursuers own Writs yet he ought to have used an incident upon his Summons to have compelled the Havers to produce the same and so before Litiscontestation the Defender might have proponed his Defense It was answered that the Pursuer is obliged to produce no more in initio litis then his Gift of Recognition from the King for the Law presumeth that the King is Superior and that the Lands are Waird unless the Defender offer to prove the contrare As for the Infeftments whereby Recognition is incurred they are not the Pursuers Title but media concludendi which he may produce ad modum probationis The Lords Sustained the Process and assigned a Term to prove the Infeftments Libelled for inferring the Recognition and reserved all the Defenders Defenses after the production thereof in the same manner as if they were now produced Mrs. Katharin Mcgil contra The Viscount of Oxenfoord Eodem die THe Deceased Viscount of Oxenfoord having named his Son Executor and universal Legator he gives a Bond of Provision to umquhile Mistrisse Mary one of his Daughters in satisfaction of her Portion natural and Bairns part there are yet three Children beside the Heir and the said Mrs. Mary did survive her Father and in the Compt and Reckoning of his Executory the three surviving Children claimed half of the Moveables as the Bairns part It was alleadged for the Viscount the universal Legator that a fourth part of the Bairns part behoved to belong to him which would have belonged to Mrs. Mary because the Bond granted by the Defunct being in satisfaction of Mâ—ries Bairns part her Bairns part must come in place of it and not accresce to the rest of the Bairns but must belong to him as Executor and universal Legator especially this Bond being granted on Death-bed is only effectual as a Legacy whereby the Defunct did burden his own Deeds part which can be no otherways understood then thus that he would make up Maries Portion to ten thousand Pounds her Bairns part being in the first end thereof and it cannot be thought his meaning to exhaust his Deads part further or to gift any thing to the rest of the Bairns by the accrescence of Maries part It was answered that such Bonds of Provision are most ordinar bearing it to be in satisfaction of their Bairns part which has ever been so interpret that the Portion of the Bairn so satisfied accresceth to the rest of the Bairns and it was never heard that the Heir or Executor burdened with such Bonds of Provision did thereupon recur to seek that share of the Bairns part which was satisfied by the Bond of Provision neither is there any odds whether the Provision were by Legacy or Bond for the Reason of recourse being because the Heir or Executor is burdened to satisfie that Bairn and so in either case doth claim the share of that Bairn neither was it ever so understood that Fathers granting such Bonds of Provision did not thereby leave intire the Bairns part to the remanent Bairns The Lords found that Mrs. Maries share of her Bairns part did accresce to the rest of the Bairns and did not belong to the Executor either as a part or in place of any part of the ten thousand pound but the samine did solely burden the Deads part Agnes Dundasse contra The Laird of Ardrosse and the Laird of Touch. February 18. 1671. THe Laird of Ardrosse having granted Bond to umquhile Mr. Henry Mauld and his Spouse and their Heirs of 8000. Merks and after his Decease he granted a Bond to the Relict bearing to have borrowed two thousand Merks from her and obliging him to pay
of a thousand merks whereanent it being Debated anent the manner of Probation and Witnesses ex officio being craved for clearing the Trust by the Writer Witnesses and Communers The Lords refused to Sustain the same till first they considered the other Reason of Circumvention which was Libelled thus That the Disponer was a lavish weak person that the Disposition was elicite by his own Good-brother for a thousand merks only and that he keeped him privatly from the access of all other Friends and drank him drunk in which condition he was when the Disposition was Subscribed and that it was not Read unto him and it being excepted upon a Ratification some Weeks after at another place and the Reason of Circumvention repeated on the same Terms against that Ratification The Lords ordained Witnesses to be Examined ex officio upon the Reason of Circumvention as to both and specially whether these Writs were Read at the Subscribing and whether the Subscriber was Drunk and whether he was thereby insensible or disordered in his Reason or what were the Motives induced him to Subscribe Sir George Maxwel contra Maxwel of Kirkonnel Eodem die SIr George Maxwel of Nether Pollock pursues Maxwel of Kirkonnel for payment of a Debt of his Fathers as behaving himself as Heir by intromission with the Mails and Duties of his Fathers Lands of Kirkonnel The Defender alleadged Absolvitor because his Father was Denuded and an Appryzer Infeft and so could have no Heir in these Lands It was Replyed that notwithstanding of the Appryzing the same remained Redeemable and the Defunct remained in Possession and the Defender his appearand heir did continue his Possession and so has behaved as Heir and though he had had a Right or Warrand from the Appryzer yet during the Legal it is immistio having no other Cause nor Title It must be presumed to be granted to him as appearand Heir much more where he hath no Warrand from the Appryzers 2dly It is offered to be proven the Appryzers were satisfied by intromission and what is wanting the Pursuer offers to satisfie the same at the Bar for by the Act of Parliament 1661. betwixt Debitor and Creditor Appryzings acquired by appearand Heirs may be satisfied by the Defuncts Creditors for the sums they truly payed out by the space of ten years So that the Defender ought to condescend and Depone what he gave out and to count for his Intromission and what is wanting the Pursuer will pay The Defender answered that behaving as Heir being an odious universal passive Title any colourable Ground is sufficient to restrict it to the value intrometted with And as to the offer to satisfie the Defender of the Appryzing to which he has Right It is not competent hoc ordine for by the Act it is only introduced in favours of other Appryzers and the Pursuer is a meer personal Creditor without any Appryzing It was answered that the Narrative of that part of the Act bears it expresly to be in favours of Creditors and though the subsumption is only applyed to Appryzers yet it is not exclusive and by the common Custom satisfaction of Appryzings by intromission or present payment is ever received by Exception or Reply The Lords found that behaving as Heir is sufficiently elided by any Right or Warrand from the Appryzers as to intromission thereafter or that if the Defunct died not in Possession But that the Appryzers had then or thereafter attained Possession before the intromission But found that the appearand Heirs continuing in the Defuncts Possession without a Warrand did infer behaviour and that the offer to purge the Appryzing at the Bar was competent hoc ordine without burdening the Creditors with the Expenses of Appryzing to make the appearand Heir lyable for what he intrometted with and that the appearand Heir should assign the Appryzing whereupon the Creditor might continue Possession till he were satisfied of the sums now payed out Robert Lermont contra The Earl of Lauderdail Iuly 12. 1671. SIr Alexander Swintoun having Disponed his Estate of Swintoun to Iohn Swintoun his Son in his Contract of Marriage there is a Clause therein on thir Terms that it shall be leisom to the said Sir Alexander to affect and burden the Estate with Infeftments of Wodset or Annualrent for the sum of fifty four thousand merks for his Creditors and Bairns thereafter Sir Alexander grants a Bond of 1400. merks to the Laird of Smeatoun and declares it to be a part of the fifty four thousand merks whereof 2000. merks being now in the Person of Robert Lermont He pursues the Earl of Lauderdail as now come in the place of Iohn Swintoun by his Foresaulture to pay the sums or at least that the Lands is or may be burdened therewith because the Forefault Persons Infeftment being qualified with the said Reservation it is a real Burden affecting the Estate and Swintouns Infeftment being publick and thus qualified and burdened was as to this point the Creditors Infeftment and his being Forefault could not prejudge the Creditors as to this real Burden in a publick Infeftment granted by the King The Defender alleadged that the Libel was not Relevant for the Reservation being a meer Power of Burdening by Infeftment it cannot be pretended that the Forefault Persons Infeftment is sufficient therefore But seing Swintoun made no use of that power albeit it might have been sufficient against Swintoun the Contracter or his Heirs It cannot militate against the King or his Donator to whom the Fee returns by Forefaulture without any Burden but what the King has consented to by publick Infeftments or Confirmations And though old Swintoun had given the Pursuer a base Infeftment it would have fallen by the Forefaulture not having been Confirmed much more when there is no Infeftment The Lords found the Libel not Relevant and Assoilzied The Heirs of Mr. Thomas Lundy contra Earl of Southesk and others Eodem die THe Estate of Sir Iames Keith of Powburn being Appryzed by several of his Creditors they now compet for preference Mr. Thomas Lundie who led the first Appryzing was more then year and day before the rest and thereupon his Heir craved preference It was alleaged the Apprizing was null First Because it proceeded upon a Bond carrying a Clause of Requisition and the Claim of the Appryzing did not Libel thereupon so that albeit it be now produced and done debito tempore Yet the Claim was not sufficiently instructed without it 2dly The Messenger did unwarrantably continue the Court of Appryzing till another Dyet without any necessar Cause which was never accustomed before and is of very evil consequence for thereby Messengers at their pleasure may continue and weary out the Persons concerned who might propone Defenses or produce Suspensions and are not obliged to attend the pleasure of the Messenger 3dly The Appryzing was at the Beitch-hill of Cowper which is not within the Shire where the Lands ly And albeit there be a Dispensation
the Bond two affirmed and two denyed their subscriptions the Creditorâ— oath being taken ex officio affirmed the truth of the debitors subscription who being a person of good fame and credit and no improbation insisted in the Bond was sustained Novomber 16. 1667. Laird Cultâ—raâ— contra Chapman A writ having lyen 33. years dormiâ—nt witnesses and arbiters were examined â—x officio whether or not the writ was put blank in the arbiters hands and being found by the party filled up with five times so much as was their mind though there was no adminicle in writ to evidence the cause thereof upon consideration of the long latency of it and the necessity of money the party was in who had it Ianuary 6. 1668. Chisâ—hâ—lme contra Rennies A writ subscribed by a principal party and certain cautioners bearing the day place and witnesses of their subscription and afâ—er the witnesses names bearing as subscribed by another party as Cautioner at blank without any thing following either of the date or witnesses The Bond was not sustained against that Cautâ—oner upon the Creditors condescending on the date and witnesses to be the same with these of the principal and the other Cautioners but the Lords ex officio ordained the witnesses to be examined whether they saw the Cautioner in question subscribe with the principal and other Cautioners reserving to their own consideration what the Testimonies â—hould operat Ianuary 24. 1668. Magistrates of contra Earl of Findlator A Writ wanting witnesses being pursued on against the subscribers Heir and being offered to be proven holograph he was admitted to alleadge that though holograph it could not prove it self to be of the daâ—â— it bear but was presumed to be subscribed in lâ—cto which was sustained being thus proposed without a Reduction seing the Bond was not sufficient of it self but needed probation and the alleadgeance of death-bed was instantly verified by the presumption of Law that the writ instructed not it self to be before the Defuncts sickness November 14. 1668. Calderwood contra Iohnstoun A writ requiring two Nottars subscribed but by one was found to be valide if the verity of the subscription were proven by the subscribers oath and that it might not be resâ—led from but that the oath might not be taken in prejudice of an Assignay for an onerous cause December 18. 1668. Swintoun contra Brown Writ cannat be taken away by witnesses was â—ound not to infer that witnesses cannot be admitted to prove a Bargain anteriour to the writ upon which bargain the writ may be reduced as posterior in prejudice of Creditors seing the payment or discharge of the writ is not proven by the Witnesses Ianuary 21. 1669. Creditors of Polloâ—k contra Pollock A writ being a Bill of Exchange subscribed only by a mark and not initial Letters was found to prove there being some witnesses who deponed they saw the mark put to and others that the party being a Merchant Drover was accustomed so to subscribe Bills of considerable sums which were ordinarly accepted and answered by him but this being the first writ sustained by a mark was only approven by all the circumstances and not to be drawen in example many of the Lords being contrary to the allowing this or any such February 1. 1669. Brown contra Iohnstoun of Clacharie A writ being a Tacâ—â— was found null as not being subscribed by two Nottars though it was subscribed by one and a judicial act of Ratification thereof in a Baron Couâ—t which was not found to supply the want of the other Nottar seing the first Nottar was Clerk of the samâ— Court and all was but one assertion December 18. 1668. Swintoun contra Brown FINIS