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
ipso the Earl of Hooms Right fell in consequence as founded upon Iohn Stewarts Dishabilitation and with it the Defenders Tack The Lords Repelled the Defense upon the Tack in respect of the Reply for albeit the Act of Parliament 1633. be much larger then the Act salvo 1621. so that thereby the Lords might have cognosced upon John Stewarts Rehabilitation as without Citation if it had wronged any other Persons Right but finding that it was an Act of Iustice wronging no Persons Right they found the same Relevant Town of Edinburgh contra Sir William Thomson Iune 6. 1665. THe ordinar Council of Edinburgh having Deposed Sir William from his Office of Town Clerk he raised a Reduction of the Sentence on four Reasons first that the samine was null because it proceeded without Citation or necessar Solemnities of Process 2ly Because the Town could not be Judge in their own Cause 3ly Because by the Sett or the Kings Decreet Arbitral for the Government of the Town no Person could be admitted to any Office or Benefice therein but by the great Council consisting of the ordinar Council and their Deacons and consequently none could be Deposed from such Offices but by the same great Council and this Sentence was by the ordinar Council 4ly That the Sentence was exorbitant and unjust in Deposing him for an Omission sine dolo lata culpa aut damno The Lords having discussed the fourth Reason and heard the whole Dispute at length in praesentia The Defender after Interlocutor but not pronounced on the fourth Reason borrowed the Process and refused to re-deliver it The Town called upon a Copy and represented the manner of abstracting the Process The question was what should be done and whither Sir William might before Litiscontestation or any Interlocutor pronounced take up his Process The Lords admitted Protestation on the Copy and ordained an Act of Sederunt prohibiting the Clerks to give up any Process to the Pursuer after it was Dispute to the full in all the Members thereof though no Interlocutor were past or pronounced thereupon lest after so long Debate and hearing the Lords should at the discretion of Parties lifting their Process lose their time but what had been Dispute should be advised de recenti Iune 8. 1665. The Lords upon Supplication ordained an Appryzing to be allowed albeit not only the Debitor against whom it was deduced was dead but the threescore days were long since expired and ordained the allowance to be Registrat in respect that the late Act of Parliament declares that such Appryzings as are not Registrat within threescore shall not be preferred to posterior Appryzings first Registrate so that the Lords thought that where the allowance was Registrate albeit after the threescore dayes it would be preferred to any other Appryzing Registrat thereafter Eodem die The Lords intimat to the Writers Keeper of the Signet and Clerk of the Bills an Act of Sederunt prohibiting general Letters upon Presentations or Collations of Ministers whether having Benefices or modified Stipends until every Incumbent obtain a Decreet conform albeit they should produce their Predecessors Decreet conform or a Decreet of Locality containing the Stipend particularly Swintoun contra Notman Iune 10. 1665. SWintoun in his Testament having named his Wife Tutrix to his Children and Notman and others Overseers His Relict within a year was married and so her Tutory ended shortly after Notman received from her a number of several Tickets belonging to the Defunct and gave his Recept Thereof bearing that he had received them in his Custodie and keepingâ— thereafter he uplifted the Sums contained in some of the Tickets and gave a Discharge to the Relict and second Husband of some particulars and consented with the Pupil to a Discharge to a Debitor which expresly boor him to be Tutor Testamentar and did intromet with the Rents of some Tenements and Disposed upon some Sheep whereupon Swintoun the Pupil pursues him as Tutor or Pro-tutor not only for all he Intrometted with but for the Annualrent thereof and for all the rest of the Defuncts means which he ought to have intrometted with and to have called the Tutrix to an account therefore and condescended upon the insight and plenishing of the Defuncts House the Goods in his Shop he being a Merchant the Debts in his Compt Books and these due by his Tickets not only received by Notman but by others and for the remander of his Sheep and other Moveables and for the rest of his Rents not uplifted by Notman It was alleadged for Notman 1. That that member of the Libel was not Relevant whereby he was pursued not only for that he Intrometted with but what he omitted because a Pro-tutor is not obliged as far as a Tutor for the Pupils whole Means but this far only that whatsoever he intromets with as to that he is obliged as a Tutor to imploy it and preserve it and so is lyable for Annualrent therefore and in that he differs from another negotiorum gestor who is not lyable for Annualrent but he is not lyable for other particulars of other kinds that he medled not with as albeit he had medled with the Tickets yet that would not oblige him to medle with the Compt Books Plenishing or Cattel there being no Law to oblige him neither was there any possibility that he could meddle therewith being neither obliged nor able so to do having no active title in his Person for Overseer non est momen juris and by our Custom iâ— doth oblige to nothing but is as the fidei commissa were in the ancient Roman Law in the arbitriment of him to whom they were committed without any obligation or legal compulsion ex mera pietate so that his being Overseerâ—â— could oblige him in nothing and his meddling thereafter to preserve the means of the Pupil when his Tutrix and Mother had superinduced a second Husband ought not to be hurtful to him otherwayes no Overseer will ever meddle in any case with any thing of the Pupils whereby their Means may be destroyed 2ly He cannot be lyable as Tutor notwithstanding of the Discharge subscribed by him hoc nomine because albeit that would prove him Tutor where the case did not otherwayes appear seing the contrair is manifest that whereas the Discharge bears him Tutor Testamentar The Testament produced bears him only to be Overseer faâ—sa designatio non obest 3. The Ticket or receipt of the Bonds cannot obliege him for all these Bonds but such thereof whereof he uplifted the Money and only from that time that he uplifted the same especially seeing the Ticket bears that he received them in his Custodie which any friend might do especially an Overseer and does not import his purpose of Intromission The Pursuer answered to the first that his Lybel was most Relevant not only for Intromission but Omission because a Pro-tutor in Law is oblieged in all points as a Tutor not only pro commissis sed pâ—o omissis
granted a Bond to Livingstouns his Wife bearing that in respect he thought it convenient that they should live a part he oblieged him to pay her a certain Sum of Money yearly for her aliment and oblieged him never to quarrel or recal that Obligation being charged thereupon he Suspends on this Reason that it was donatio inter virum uxorem and so he might recal the same and now offered to Cohabite with his Wife and aliment her according to his Means It was answered that he had Renunced that priviledge in so far as he had oblieged himself never to Recal or come against this obliegment It was answered that though he had expresly Renunced that priviledge yet the Renunciation was donatio inter virum uxorem and he might therefore Recal and come against both The Lords found the Reason of Suspension and Reply relevant in time coming but not for the bygone time during which the Wife had actually lived a part and alimented her self Laird of Dury contra The Relict and Daughter of umquhil Dury his Brother Eodem die DVry being Served Tutor of Law to his Brothers only Daughter pursues her Mother for delivery of her to be Educat by her Tutors It was alleadged that he was to succeed her and so could not have the Custody of her Person 2. That she was but nine years old and her Mother unmarried and so she was the fittest person to Educate her especially seing she was the only living Child of many and so not likely to be lively It was answered that the Tutor insisted not for the custody of his Pupil himself but condescended on several Persons with whom she might be Educate and alleadged that she having 40000. pounds of Provision out of the Family there was no Reason she should be keeped by her Mother and Disposed of at the pleasure of her Mothers Friends The Lords Decerned the Child to be delivered to Mr. Alexander Gibson one of the Clerks to be Educate with him but superceeded Execution of the Sentence till Whitsonday come a year that she might be delivered to her Fathers Friends before she was eleven years old and could have any thoughts of Marriage Watson contra Fleming Eodem die THere being an Infeftment of Annualrent granted out of Lands and Teinds and an Assignation to the Teind Duties in so far as extended to the Annualrent The Teinds and Lands were thereafter appryzed from the common Author before the Annualrenter had obtained Possession by his Real Right of the Annualrent but only by his Assignation to the Teind Duties It was alleadged by the Appryzer that the Assignation to the Teind Duties could give no longer Right then the property thereof remained in the Cedents Person which Ceasing by the Appryzing the Assignation ceased therewith as is ordinarly and unquestionably sustained in Assignations to Mails and Duties of Land It was answered that there was great difference betwixt Lands which require Infeftment to transmit the same and Teinds which require none but are conveyable by an Assignation for if this had been by an Assignation to the Tack of Teinds protanto it would have been unquestionably valid and therefore being an Assignation to the Teind Duties it is equivalent as a Disposition to Lands which would carry the Right of a Reversion though not exprest and though there were no more to Dispone but the Reversion only It was answered that if the Assignation had been to the Teinds That is to the Right or if it had been to the full Teind Duty in the Tack or of certain Lands then the case might have been dubious but being not of the Teind Duties of any particular Lands but out of the first and readiest of the Teinds of several Lands it was not habilis modus Which the Lords found Relevant Town of Glasgow contra Town of Dumbarton Eodem die THere being mutual Declarators one at the Instance of the Town of Dumbarton for Declaring that they had Right by their Infeftments that all ships coming within Clyde should make their Entries at Dumbarton and that they should pay Anchorage for all Ships Anchoring in the River of Clyde being within their Infeftment even from the Water of Leven to the head of Lochluny within which bounds is the ordinar station of New-wark Potterig and Inchgrein and above which no Vessel above 24. Tuns goes up Clyde and likewise for the Measurage whereby all Ships casting Anchor there took the Firlots of Dumbarton and measured with payed 8. pennies of the boll therefore and Weightage which is a Duty for their Weights and also Tunage being so much out of every Tun of the Burden of each Ship And on the other part Glasgow pursues Declarator of their Liberty to Traffick freely in the River of Clyde and to make Entry at their Burgh and to be free of any such burden at Dumbarton The Lords before answer having ordained either Party to adduce such Writs and Witnesses as they will make use of in the Cause for instructing these Burdens the Possession thereof Interruptions of the same and Liberty therefrom which all being adduced Dumbarton produced their original Charter Erecting them in a free Burgh by King Alexander in Anno 1221. and another Charter also by King Alexander repeating their Priviledges of Burgh as free as Edinburgh or any other Burgh within the Kingdom cum custumiis teloniis and also a Charter in Anno 1609. Ratifying the former Charter and particularly expressing all these Burdens in question in the novodamus thereof and also produced their Entry Books bearing the Merchants of Glasgow to have Entred their Ships at Dumbarton and to have taken the measures of Dumbarton for measuring their Salt and to have payed the Duties thereof and obliging themselves to make use of no others these Voyages begining at the year 1616. and continuing till the year 1657. in the beginning whereof there was ordinarly one Ship every year and thereafter several Ships every year Glasgow did also produce their ancient Infeftments by King Alexander mentioning a prior Infeftment by King William Erecting them into a free Burgh with their Books of Entries of several Ships for divers years with an Interlocutor of the Lords in Anno 1609. wherein Dumbarton having charged for all the Duties now in question Glasgow Suspended and Dumton insisted for none of these in question but only for Entries and the Lords found that the Merchants of Glasgow might either Enter at Glasgow Dumbarton or any other free Burgh where the Kings Customers were and might break bulk there with a Contract between Dumbarton and Glasgow in Anno 1590. oblieging them to concur against unfree-men and not to break bulk upon the River but in their Towns and in case of any difference six of each Town to meet at Ranfrew and decide the same and thereupon alleadged that they being a free Burgh and having the precedence of Dumbarton both in Parliament and so acknowledged by the said Contract and enjoying equal and free
Trade in the River of Clyde without any such Burden whereof no mention is made in the foresaid Contract and being charged for in Anno 1611. there was not so much as an alleadgence of any Possession of Dumbartons of these Dues at that time and the Entry decerned to be free at either Town and therefore they alleadged that their Priviledge of Trading as a free Burgh ought to be declared and they assoilzied It was answered for the Town of Dumbarton that they had good Right to these Duties by His Majesties several Infeftments granted to them for the King having power to impose petty Customs not only in Ports built and preserved by Industry but in Stations and Rivers Creiks and Bays as is the Custom of all Kings and Princes such are the Customes upon the Rivers of Rhyne Garonnie Thaimes and others to all Ships that anchor there or pass that way and whereof there are severals in Scotland as the Tunnage due to Edinburgh of all the Ships breaking bulk at Leith and the petty Customs of Alloway Cockenie and other places 2ly Albeit the Kings grant were not sufficient alone yet being cled with immemorial or 40. years Possession instructed by Witnesses and the Books of Entry it is more then sufficient It was answered for Glasgow to the first That petty Duties imposed for Ports having a mutual Cause may be appointed at any time by Kings and Princes it being free to these who are burdened therewith to come in to that Port or not they also appoint petty Customs to be payed to any City for Goods Imported and sold there in consideration of the upholding of their Harbours and Mercats as the Tunage of the Harbour of Leith or anchorage at any Shore where anchorage is casten upon the Land or any Goods laid out upon the Land or where Imposition for anchorage or other Dues in a River or Station hath been approven by long Custom and acquiescence but where Burghs Royal have not only by their priviledge of Trading but by immemorial Possession prescribed a liberty of making use of Stations without burding no Right granted or Impetrat by any Party in prejudice thereof if it be quarrelled before Prescription can take away the liberty of Trading Nor is the Kings Gift any way to be understood but periculo petentis and Dumbartons second Charter did expresly bear that these petty Customs were due and accustomed before so that the Kings express meaning is not to Gift them de nova or to impose a servitude in their favours upon a far more eminent City then themselves And as to the Point of Possession nothing is proven thereanent till the year 1616. and then it is neither universal seing more Entered at Glasgow then at Dumbarton nor is it peaceable nor voluntar nor is it continual but interrupted and albeit it were uninterrupted yet it is but by single Persons which cannot infer a Servitude upon the Burgh and if the Kings Gift be periculo petentis and be surrepticiously impetrat upon a false Narrative no Possession can validat it as no Possession of it self without a Title could infer such a Servitude The Lords having considered the Depositions of the Witnesses Books of Entry and the hail Writs produced they found that the alleadgence against Dumbartons Declarator as founded upon their Charters without Relation to Possession was not Relevant and that the first Charter could not extend to these particulars not being exprest unless it had appeared that they had been in immemorial Possession before the second Charter and the interruption by the Suspension raised by Glasgow and the Lords Interlocutor thereuponâ— in Anno 1611. for albeit Immemorial or 40. years Possession immediatly preceeding might have presumed Possession continually before since the first Charter yet they found that Interruption or Suspending that particular in question and no alleadging of Possession by Dumbarton then but on the contrair an Interlocutor as to the liberty of Entry at Glasgow takes off that Prescription And likewise they found that there was nothing proven as to 40. years Possession save only 13. sh. 4. d. for the Anchorage of each Ship and 8. d. for the use of Dumbartons Measures of Salt for each Boll and seing that Possession was also proven to be Interrupted in that several Ships of Glasgow Resisted and came away free and that they had several Salt Measures of their own there Therefore they found the Charter not validat by 40. years Possession uninterrupted and Assoilzie from Dumbartons Declarator and Declared upon Glasgows Declarator of Liberty Earl of Panmuire contra Parochiners Feb. 7. 1666. THe Earl of Panmuire having Right to the Abbacy of Aberbrothick pursues for a part of the Teinds thereof It was alleadged absolvitor because they had possest their Land 40. years free of Teind to any body and by the general Act of Prescription all Right prescribes not pursued within 40. years and so doth the Right of this Teind It is answered that the Right of Teind is founded on Law and not upon any particular or privat Right and therefore albeit in the case of Competition of private Parties pretending Right to Teinds One Right may be excluded by another yet the Teinds themselves must always be due except where the Lands are decimis inclusis and did belong to priviledged Church-men of old such as the Cistertian Order or Templars Manse or Gleibs The Lords Repelled the Defense in respect of the Answer for they thought albeit the bygones of the Teind preceeding the 40. years might prescribe yet the Right of Teind could not more then Customs could prescribe if they were neglected to be Exacted for fourty years or a Feu-duty Ker contra Hunter and Tennents of Cambo Feb. 8. 1666. THe Tennents of Cambo raise a Double-poinding against Ker and Hunter both being Infeft in Annualrents base where the last base Infeftment within a month of the former being cled with Possession by a Decreet of poynding the Ground a year after both and no Diligence on the first The Lords preferred the last Infeftment as first cled with Possession It was further alleadged that this Annualrenter had accepted a part of the Land in satisfaction of his Annualrent It was answered that there was Write there required viz. a Renunciation of the rest and till that was done est locus penitentiae The Lords considering the Case found that if the Promise were only to restrict the Annualrent to a part of the Land burdened therewith it was pactum liberatorium and there was not locus penitentiae but if it was a Promise to accept other Lands or the Property of a part of the Lands burdened there was locus penitentiae till the mutual Rights were subscribed whereby the one Party disponed the Property and the other the Annualrent The Heretors of Johns Miln contra The Feuars Feb. 9. 1666. THere being an old Thirlage of a Paroch which was a part of the Barony of Dumfermling to Iohns Miln the Feu of the Miln being
Mails and Duties by the Escheat It was answered for the Earl that having both Rights in his Person he might poynd the Ground for the Feu-dutie and his Donatar might pursue for the Maills and Duties 2dly His acceptance of the Feu-dutie albeit it could not consist with the Maills and Duties yet it would only extend to these Years that the Feu-dutie was accepted and to no others The Lords found the acceptance of the Feu dutie Relevant only for these Years for which it was received but it occurred to some of the Lords that if it were alleadged there were three consecutive Discharges of the Feu-dutie that these as they would presum all bygone Feu-dutie payed so they would extend to the Maills and Duties for all years preceeding the Discharges Therefore the Defender was ordained to condescend if so many Discharges were and that this point might be debated William Crawfoord contra Andrew Duncan June 7. 1666. WIlliam Crawfoord as Assigney to a Bond of 200. merks granted by Andrew Duncan pursues for payment It was alleadged absolvitor because the Bond was null having no Date at all data est de substantialibus It was answered that the Pursuer offered him to prove by the Defenders Oath that it was his true Subscription which was sufficient and the Date is only substantial when Improbation is alleadged or any Right that might take away the Writ if it were of such a Date as a prior Assignation or general Discharge The Lords found the Reply Relevant with this provision that the Defender might adject what quality he thought fit as these mentioned or that it was done in Minority or not delivered c. but they found him not oblidged to depone simpliciter upon the verity of the subscription and to prove such qualities as they had done before in a Holograph Writ wanting Date the last Session in the Process betwixt the Earl of Kinghorn and Sir James Murray Elizabeth Anderson contra George Cunninghame Iune 9. 1666. THis Cause betwixt Elizabeth Anderson and George Cunninghame anent a Legacie lest by the said George his Wife to the said Elizabeth Anderson being debated the 7. of February last The Lords then found that George by confirming his Wifes Testament in giving up his Debts to exhaust the free Gear and abate the Legacie did not hinder himself to adduce further Debt for a further abatement but now it being further alleadged that immediately before the Confirmation the Bond he would now add was registrat and he charged therewith he could not be ignorant thereof at the time of the Confirmation The Lords altered their Interlocutor and found that having scienter omitted that Debâ— he could not bring it in to the Legatars prejudice This was stopt by Bill the next day Colin Hay contra Magistrates of Elgin Iune 12. 1666. COlin Hay pursues the Magistrats of Elgin for the Debt of a Rebel escaping out of the Prison of Elgin whom he had arrested there It was alleadged for the Defenders absolvitor because the Rebel was not incarcerat by the Pursuer upon his Caption but being incarcerat by another was only arrested in the Tolbooth by the Pursuer and all that is produced to instruct the same is only the Execution of a Messenger who arrested the Rebel It was answered there was no difference whether the Rebel had been incarcerat upon the Pursuers Caption or had been arrested for in both Cases the Magistrats are lyable and the keeper of the Tolbooth ought to have a Book for certifying the Magistrats of all incarcerations and Arrests in Prison and if they be neglective therein it is on their perills and yet here the Messenger not only Arrested but the Executions bore that he intimat the same to the Provost and Baillies Which the Lords found sufficient and Repelled the Defense and found no difference betwixt Incarceration and Arresting in Prison Sinclar of Bryme Supplicant Eodem die SInclar of Bryme gave in a Bill bearing that he had obtained Suspension of all Execution and specially of Appryzing which he presented at the time of the Appryzing and yet the Messenger and Writer went on and Appryzed and therefore craved that the Appryzing might be stopt at the Registers and Seals The Lords refused to grant the desire of the Bill without there had been a Summons against the Appryzer past the Signet but would not upon a Bill cite Parties out of the Town having no dependence on the House nor annull or hinder any pretended Right they had without citing of them but resolved to take in consideration the contempt of the Messenger and Writer at the discussing of the Cause Sir Hendrie Hoom contra Tennents of Kello and Sir Alexander Hoom. Iune 13. 1666. JOhn Hoom Younger of Kello being Forefaulted in the Parliament 1661. For being with the English Armie against the Kings Armie at Worchester 1651. Sir Alexander Hoom obtained Gift of the Forefaultry and thereupon came in possession Sir Hendrie Hoom having Appryzed the Lands of Kello from the said Iohn Hoom and his Father Alexander Hoom upon their Bond and having charged the Superiout in 1653. to Infeft him obtained Decreet of Maills and Duties against the Tennents which being Suspended upon double Poynding and Sir Hendrie and Sir Alexander competing It was answered for Sir Alexander the Donatar that he had possest three years and offered him to prove that the Rebel had possest five years before therefore craved the benefit of a possessorie judgement 2dly That he was preferable in poynt of Right in so far as he offered him to prove that the Rebel was five years in possession before the Forefaulture which gives the King and his Donatar compleat Right by the Act of Parliament It was answered for the Creditor that he ought to be preferred because there being no retour upon the Act of Parliament finding by the Inquest that the Rebel was five years in possession as Heretable Possessor he can neither have the benefit of a possessory Judgement nor stop the Creditors Diligence who found themselves upon the Appryzing against the Father who stood publickly Infeft and there is no sufficient Right in the Rebels Person alleadged nor produced It was answered that the five years possession might be proven by Witnesses by way of Exception 2dly It was offered to be proven by an Inquest conform to the Act of Parliament The Lords found no benefit of a Possessory Iudgement competent neither would they sustain the five years possession by way of Defense but decerned superceeding Extract while the 15. of July within which time if the Donatar obtained the retour of an Inquest he should be heard thereupon The Donatar further alleadged seperatim that the Rebel was Infeft by the Father which was sufficient to prefer him without an Inquest It was answered non relevat unless he had either been publickly Infeft or by base Infeftment cled with possession before the Superior was charged upon the Creditors Appryzing which being equivalent to a publick Infeftment
The Tower of Babel falling upon the Roof made it Ruinous It was answered That was an accident without the Pursuers fault and the Tennent ought to pursue these whose Tenement it was that fell The Lords found the Reason was not Relevant to Liberate from the Mail unless the Suspender had abstained to Possesse but found it Relevant to abate the Duties in so far as he was Damnified Oliphant contra Hamiltoun of Kilpoty Eodem die WILLIAM OLIPHANT having obtained a Decreet for Poynding of the Ground against Hamiltoun He Suspends on this Reason that he was neither Decerned as Heir nor Possessor but as appearand Heir to the Heretor and was never Charged to Enter Heir The Lords Repelled the Reason and found this Action being real was competent against the appear and Heir without a Charge William Oliphant contra Hamiltoun Eodem die OLiphant pursuing the foresaid Poinding of the Ground upon an Annualrent It was alleadged Absolvitor from the bygones before the Pursuers Right because his author was Debitor to the Defender in a liquid sum equivalent It was answered that the Pursuer was singular Successor and no personal Debt of his Authors could infer Compensation of a real Right against him The Lords found that the bygain Annualrents were moveable and compensable with any liquid Debt of the Pursuers Authors contra Brand. Ianuary 3. 1667. Chapman having left his Pack in custody with Brand In Dundee about ten or twelve dayes after Brand opened the Pack and made use of the Ware The Chapman now pursues him for a Spuilzie who alleadged Absolvitor because the Pack was put in his hands for security of a Debt due by the Pack-man and he being informed that the Pack-man would not rerurn did by warrand of a Baillie in Dundee cause four of the Neighbours Inventar and Price the Ware It was answered non relevat for though the Pack had been impignorat the Defender could not appryze it summarly but behoved to take a Sentence to Poind the same The Lords Repelled the Defense It was further alleadged that there could be no Spuilzie nor Oath in litem of the Pursuer because there was no Violence It was answered that the Oath in litem is Competent whether it were a Spuilzie or a breach of Trust actione deposâ—â— It was answered that the Oath in litem being granted mainly because Parties injured by breach of such Trusts cannot be put to prove by VVitnesses that which is taken from them none being oblieged to make patent his Pack or other privat Goods to VVitnesses yet where there is another clear way to prove the quantities viz the Oathes of the four Persons who opened the Pack there is no reason to put it to the Pursuers Oath especially seing their Inventar is not the eight part of what he claimes The Lords admîtted the Pursuers Oath in litem reserving their own Modification with liberty to the Defender if he thought fit to produce what of the Ware he had and to produce these four Persons that the Pack-man may Depone in their presence Earl of Sutherland contra Earls of Errol and Marischal Eodem die THere being a Decreet of Parliament ranking the Nobility whereby Earl of Sutherland was put after the Earls of Errol and Marischal In which Decreet there is a Reservation to any to be heard before the Judge Ordinar upon production of more ancient Evidents whereupon the Earl of Sutherland pursues Reduction of the Decreet of Ranking containing an Improbation of all VVrits Patents and other Evidents granted to the Defenders or their Predecessors whereby they are Constitute or Designed Earls they did produce the Decreet of Ranking and the Earl of Errols Retour whereupon the Pursuer craved Certification contra non producta after all the Terms were run The Defenders alleadged no Certification because they had produced sufficiently by producing the Decreet of Ranking and their Retoures and the Pursuer had only produced his own Retoure which was since the Decreet of Ranking so that the Decreet of Ranking was sufficient to exclude all his Titles produced It was answered the Retour being the Sentence of a Court Serving this Earl as Heir to his Fore-Grandsire Grandsires Grandsires Fore-Grandsires Goodsire who is Designed Earl by King Alexander the second It was sufficient in initio litis Likeas he did formerly produce the Original Evidents and which was now in the Clerks hands and might have been seen by the Defenders if they pleased The Lords found the Retoures not sufficient alone and Ordained the rest to be Reproduced and seen by the Defenders Smeatoun contra Crawfoord Eodem die UMquhilâ— Patrick Smeatoun granted a Disposition to Crawfoord his VVife and her Heirs of a Tenement of Land whereupon nothing followed during her Lifetime her younger Brothre Iames Crawfoord Served himself Heir-General to her and obtained a Decreet of Implement against Iohn Smeaton as Heir to his Father and having used Horning thereon obtained Adjudication against Smeatoun and his Superiour and thereupon was Infeft which Right was Disponed by him with consent of William Crawfoord elder Brother to the VVife The said Iohn Smeatoun Dispones the same Tenement to Alexandor Smeatoun and he is Infeft and thereupon pursues a Reduction of Iames Crawfoords Retour and of all that followed thereupon in consequence on this Reason that the Disposition to the VVife belonged not to Iames Crawfoord her younger Brother who was Heir of Line but to William Crawfoord her elder Brother as Heir of Conquest and so the Service was null following thereupon and the Pursuer being first Infeft from Smeatoun he hath the only Right because any Infeftment to William the Heir of Conquest will be posterior It was answered that it was jus tertij to the Pursuer whether the Heir of Line was Served or Infeft or the Heir of Conquest likeas the Heir of Conquest did concur and had consented to the Disposition The Lords found not the Defenses Relevant but considering the Case as Calumnious seing it was but of late cleared by Decisions whether the Heirs of Line had right to Dispositions without Infeftment they did superceed to give answer but ordained the Defender to give in what Evidences he could give of the onerous cause of his Disposition Paul Henrison contra Laird of Ludquharn and Captain Seatoun Ianuary 4. 1667. THe Debate betwixt Paul Henrison and Ludquharn was this day heard again and it was alleadged that the Kings Proclamation declared War against the King of Denmark and his Subjects Ita est the Owners of the Ship are Subjects to the King of Denmark because it is notour that this Isle is a part of the Kingdom of Denmark and till of late was in the same condition as any other of his Territories and albeit the Duke of Holstein have now an Interest by Possession or Infeodation that alters not their subjection to the Crown of Denmark but the same is still presumed unless they will positively prove that the same is alter'd and the Duke of
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
same Ground the rest of the Witnesses proved that the Pursuers were in possession at or about the time Lybelled and that they went to Edinburgh and Locked their Doors and took away the Keys and some of them Deponed that the night before the Defenders Entry they saw the Doors Locked and that the next day after they saw Hugh Colvil and several others in the House and several Goods that were in the House cast out of the Door and that Hugh continued in Possession and took in the Goods again Which the Lords found sufficient to prove the Ejection and Spuilzie seing the Defender did not instruct that he entered by Authority of Law The Defender alleadged at Advising the Cause that the Pursuer had a Husband who within this Moneth was seen at Air and offered to prove by his Oath that he had Ceded the Possession being Warned and gave Warrand to the Defender to Enter and therefore he being Dominus bonorum his Wife and Bairns had no Interest to pursue and though they had his Oath was sufficient to instruct the Lawfulness of the Defenders Possession and that the Wifes Oath in litem could not be taken to Esteem her Husbands Goods It was answered that it was notourly known that the Husband had been two years out of the Countrey and having gone to Sea was commonly repute dead and therefore the Wife being in Natural Possession might lawfully pursue this Action neither was it relevant that the Husband promised to quite the Possession which being but an obligation could not warrand the Defender brevi manu to cast them out unless he had been present or consented to the Entry or had given a Renunciation of his Possession with a Warrand to Enter brevi manu The Lords in respect both Parties acknowledged that the Husband had been a great while absent found the Action competent to the Wife and found that the Husbands Ceding the Possession as was alleadged was not relevant and ordained the Wifes Oath as to the quantity and value of the Goods Spuilzied to be taken and granted diligence to the Defender to Cite the Husband if they could find him to the same Dyet to give his Oath reserving to the Lords what the Wifes Oath could work as to the estimation of the Goods without the Husbands Oath White-head of Park contra Iohn Stratoun Eodem die WHite-head of Park pursues Iohn Stratoun for restitution of an Horse which he delivered to his servant to be put in the Park of Holy-roadhouse to the Grass and which now cannot be found The Defender alleadged that he was lyable for no Loss or Hazard because at that time and long before there was a placad fixed upon the Port of the Park that he would be answerable for no Hazard or Loss of any Horse put in there by Stealling or otherwise which was commonly known at and long before that time It was answered that this Action being founded upon the common ground of Law nautae caupones stabularij ut quae receperint restituunt the same cannot be taken away but by paction and the putting up of a placad is no wayes sufficient nor was it ever shown to the pursuer The Defender answered that the Pursuer having only delivered his Horse to his Servant to be put in the Park without any express communing or conditions it behoved to be understood on such Terms as was usual with others which were the Terms exprest in the placad Which the Lords found relevant unlesse there had been a special agreement in which case they found the Defender or his Servant should have showen what was in the placad Executors of Isobel Trotter contra Trotter November 20. 1667. GEorge Trotter and Iames Lundy his Cautioner having granted a Bond of 636. pounds to Iohn Trotter and the same being Assigned to Isobel Trotter and Confirmed by her Executors they pursue Lundy who alleadged Absovitor because he offered him to prove that the Bond was granted blank in the Creditors Name to Iames Trotter Father to the said Isobel who filled up the Name of Iohn Trotter his Brother therein and took an Assignation thereto in Favours of Isobel who was then in his Family having no Means of her own and therefore it is in the same case as if it were a Bond of provision granted by the Father to the Daughter or taken in her Name which may alwayes be discharged by the Father or altered by the Father at his pleasure and true it is that the Father Submitted the same and was Decerned to Discharge the same which is equivalent to a Discharge It was replyed albeit Bonds of provision to Children be alterable by their Fathers before any thing follow yet if they be delivered to the Children or which is more if they be Registrate they become the Childrens proper Right and cannot be recalled Ita est this Bond though it had been blank ab origine it was filled up in Iohn Trotters Name and filled up before the Submission yea Isobel was dead and the Sum confirmed in her Testament so that her Father could not Discharge it proprio nomine or as his Administrator It occurred further to the Lords that albeit the Bond was Registrat the Assignation granted to the Daughter was not Registrat so that if that Assignation remained still in the Fathers power the case would be alike as if it were a Bond of provision taken originally in the Daughters Name yet this not being pleaded by the Parties And that the Asignation was Intimat that it was not constant that the Assignation remained in the Fathers hands The Lords repelled the Defense in respect of the reply Colonel Seatoun contra the Laird of Balwhilly November 22. 1667. THe Laird of Balwhilly having seased upon a Ship belonging to the Dutch during the War Colonel Seatoun Governour of the Fort at Brassie sound medled with the Ship and Loadning brevi manu for the use of the Garison Balwhilly pursues a Spuilzie before the Admiral Colonel Seatoun gives in a Bill of Advocation on this Reason that Balwhilly having no Commission albeit he did sease upon the Ship yet it belongs to the King and the Colonel had a Warrand from the Lord Commissioner to Intromet therewith for the Garisons use and therefore in the Cause concerning the King His Majesties Advocat and Officers were not obliged to answer before the Admiral nor could they attend there and therefore the Advocation ought to be past It was answered that the Reason was in causa and not relevant for the Advocat ought to have a Depute before the Admiral which is a Supream Court and Process maritime in the first instance ought not to be Sustained before the Lords and that whatever they pretended in the poynt of right Spoliatus est ante omnia restituendus The Lords having heard the Parties upon the Bill in presentia ordained the same to be past It was then desired that as before the Admiral the Colonel behoved to find caution not only judicio
upon consideration of the Pasturage without which it could neither give the Rent it payes nor the Price so that when my Lord Dispones the Lands with the Pertinents and at the time of the Disposition this Pasturage is unquestionably Possest as a Pertinent of the Land the extended Charter and Disposition ought in all Reason to comprehend it expresly neither is there any difference whether the Pasturage be of a Moor contiguous or belonging to the whole Barony seing it cannot be Contraverted but it was Possest as Pertinent of this Room the time of the Bargain and to clear that it was so Possest the Charger produced a Wodset granted by the Lord Borthwick to himself of the same Room bearing expresly Pasturage in the common Moor of Borthwick The Suspender answered that the Wodset made against the Charger in respect this Clause being express in the Wodset he had not put it in the Minut which as jus nobilius absorbed the Wodset and cannot be looked upon as a Discharge of the Reversion only because my Lord was Superior by the Wodset and by the Minut he is to Resign likeas in the minut there is a Disposition of the Teinds which is not in the Wodset The Lords found that the Minut ought to be extended bearing expresly the common Pasturage in the Moor of Borthwick in respect the same was a Pertinent of the Lands Sold the time of the Bargain and was not excepted Sir George Mckenzy contra Iohn Fairholm Eodem die SIr George Mckenzie insisted in the Reduction of the Bond Subscribed by him as Cautioner for his Father in his Minority It was alleadged for Iohn Fairholm that he could not Reduce upon Minority because he had Homologat the Bonds after his Majority in so far as he had accepted Discharges of the Annualrent bearing Deduction of the Bond by his Father as Principal and him as Cautioner and Discharging them both which Discharges Sir George himself did Receive from Iohn Fairholm and payed the Money Sir George answered that the Discharges do not bear that he payed the Money but bears that the same was payed by the Principal Debtor and his Receiving of a Discharge not having payed cannot import his Homologation or acknowledgement of the Bond for to prevent question and trouble one may take Discharge of what he denyes to be Due and the Bond being then standing Unreduced he may well accept a Discharge not knowing the event of the relevancy or probation of his Minority The Lords Repelled the Defense and found that the Discharges imported no Homologation unlesse it were instructed that Sir George out of his own Money payed the Annualrent The Laird of Haining contra the Town of Selkirk February 15. 1668. THere being mutual Pursuits betwixt the Town of Selkirk and the Laird of Haining the Town pursuing a Declarator of the Right of Property of the Commonty of Selkirk and Haining pursuing a Declarator of his Right of Pasturage in the said Commonty by vertue of his Infeftments of the Lands of Haining which Lands are a part of the Kings Property of the Barony of Selkirk and that this Common is the Commonty of the said Barony Possest by all the adjacent Fewars of the Barony and whereof they have been in immemorial Possession The Lords did before answer ordain both Parties to produce all Rights Writs or Evidents they would make use of in the Cause and also to adduce Witnesses hinc inde of both their Possessions and interrupting others Haining produced a Charter by the King in anno 1505. of the Lands of Haining being a part of the Kings Property bearing cum partibus et pertinentibus cum pascuis et pasturis but not bearing in communi pastura or cum communiis generally or particularly in the Common of Selkirk he did also produce posterior Charters of the same Land bearing cum communi pastura and did adduce several Witnesses proving 40. years continual Possession but some of his Witnesses proved Interruptions by the Town of Selkirk's cutting of Divots cast by him and his Predecessors upon the Moor. The Town of Selkirk produced their Charter of the Burgh posterior to Hainings first Charter bearing that their Ancient Evidents were burnt by the English and therefore the King gives them the Priviledge of the Burgh of Selkirk with the Burgage Lands thereof cum communiis ad dictum Burgum spectantibus which the King confirms by a posterior Charter giving the Town warrand to Ryve out 1000. Aikers of Land of the Common they did also produce several Instruments of interruption not only by cutting of the Fail and Divots cast by Haining or his Tennents but by turning their Cattel off the Moor as proper to themselves and turning off all the Heretors Cattel they found thereupon and by yearly Riding about the whole Marches of the Moor. They did also produce a Decreet at the Towns Instance against the Tennents of Haining Decerning them to Defist and Cease from the Moor in which Decreet Hainings Predecessor was Provost of Selkirk and is Pursuer of the Cause they also produced two Missives Written by Umquhil Haining acknowledging that the Town had cut his Divots Casten upon the Head Room and making apollogy for Casting of the same denying it to be by his Warrand or Knowledge they did also produce two Acts of the Town Court bearing Haining to have desired liberty to draw Stones off the Common to Build a Park Dike and to Cast some Divots for his Tennents Houses they did also adduce several Witnesses proving their continual and uninterrupted Possession of the Moor this fourty years and more which proved also frequent interruptions against Haining especially by cutting of Divots and also by turning off his Cattel upon which probation it was alleadged for the Town that they had instructed sufficient Right to the Property of this Moor and that they had debarred the Laird of Haining and his Tennents therefrom whenever they heard they came upon the same It was answered for Haining that he did not deny the Town of Selkirks Right of Pasturage in the Moor but did deny they had Right of Property therein but that the property did yet remain in the King as a part of the Barony of Selkirk being of the Kings annexed Property but that the said Property as to the Moor was now burdened with a Common Pasturage belonging to the Town of Selkirk and also belonging to the Laird of Haining and the other Feuars of the Barony of Selkirk and therefore alleadged that his Charter in the year of God 1507. being long before any Charter granted by the King to the Town did Feu to his Predecessors the Lands of Haining cum pertinentibus cum pascuis pasturis and this Common being the Commonty of the Barony of Selkirk the King Feuing a part of the Barony cum pertinentibus et pascuis did certainly thereby grant all that belonged to these Lands as Pertinent thereof as it was the time of the Feu being then Possessed by the
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
are not Counterband but are necessary in some quantity in every Ship for Calsing and by the Treaty betwixt the King and the King of Spain there is an express Article that though Counterband be deprehended in Spainish Ships only the Counterband shall be Prize and not the Ship and Goods It was answered that this alleadgeance was competent and Omitted before the Admiral It was answered that these cases with Strangers are to be Ruled by the Law of Nations and not by peculiar Statutes and Customs The Lords reponed the Strangers to their Defenses as in the first instance and also allowed the Privateer to insist on any grounds for making of the Ship Prize which he did not formerly insist on whereupon the Privateer insisted upon two grounds First Because by the Law of Nations and the Kings Proclamation of War Allies and Neuters must not make use of the Kings Enemies to sail their Ships and therefore the Proclamation of War bears expresly that all Ships shall be seised bearing any number of Men of the Kings Enemies and this Ship had the major part of her Company of Hollanders then the Kings Enemies as is evident by their own Depositions taken before the Admiral 2dly This Ship was not only sailed by Hollanders but the Ship or major part thereof and the Loadning belonged to Hollanders and any pretext that the same belonged to the King of Spains Subjects is a meer Contrivance it being most ordinar the time of the War for the Hollanders to Trade under the name and covert of the Flemish the King of Spains Subjects which appears in this Case by many evidences First Both the Merchant and major part of the sailers by their own confession are Hollanders and they have adduced nothing to be a sufficient probation that the whole ship and Goods belonged to Clepan in Bruges but on the contrair the Skippers first Testimonie at Linlithgow bears that this Ship and Goods belongs to Clepan and Revier which Revier being taken Aboard acknowledges that he was born in Holland but says that two or three years before the seisure he dwelt in Gent and Brussels under the King of Spain and having a Diligence granted to prove his Domicil the time of the War and Capture all that he proves is that in March 1667. he hired a House in Brussels and began to set up there and that sometime before he had lived with his Mother in Gent but proves not how long or that it was his constant Domicil for that was an ordinar contrivance for Hollanders to hire Houses in the Spainish Netherlands and to pretend to be Subjects there but they being Hollanders at the beginning of the War concurring and contributing to the War albeit they had truely removed tempore belli they continued to be the Kings Enemies much less can their taking a House else where sufficiently prove that they totally deserted the Hollanders and concurred not with them in the War it being easie to have Domicils in diverse places 2dly The contrivance is yet more evident in that the Goods were Shipped by Rivier at Fleck in Holland and sailing from thence to Copperwil in Norway and was taken having no Pass from the King of Spain for this Voyage but had a pretended Pass from the Duke of York which albeit it bears relation to the same Ship called Charles the second yet by the Testimonies of the Witnesses it is evident to have been granted two years before this Ship was Built which is an evident cheat and for the Pass from the Governour of the Netherlands it bears but to last for a year and was expired before this Voyage and as for the Pass from the Chamber of Commerce it was granted for a former Voyage from Ostend to France which is clear by the Testimonies which bear also that there could be no Pass gotten for this Voyage because this Ship was lying in Fleck and not in the King of Spains Ports and so the Loading could not be their lying and wanted Oath taken thereupon that it belonged not to the Kings Enemies as is requisite in such Cases It was answered for the Strangers to the first ground of Adjudication that it was no way sufficient First Because the King of Spain being an Allie by a perpetual League his Subjects were not to be regulat by the Kings Proclamations but by the solemn Treaties betwixt both Kings which setting down the causes of Seisure must necessarly import that seisure should be for no other cause then is therein exprest 2dly The Articles bear expresly that any of the Spainish Subjects having a Pass conform to the formula set down in the Articles should be no further troubled which formula requires nothing as to what Countrey the Sailers are of and therefore there can be no seisure upon the account of the Sailers for albeit by the Swedish Treaty the Swedes are allowed to have a Dutch skipper ◠〈◊〉 becoming a sworn Burgess of some Town in Sweden and he residing there from whence the Lords have inferred that the Swedes may not sail with Hollanders and have declared some of them Prize upon that account yet this cannot be exended to the Spanish Subjects in whose Treaty there is 〈◊〉 such thing 3dly By an Act of the Council of England produced it appears that his Majesty gave Order that all Flandrian Ships that were taken should be dismist if there were no other ground of seisure but that they were sailed by Hollanders until his Majesty review the Flandrian Concessions and give further Order and there is a particular Concession to the Flandrians beside this Treaty in regard their Language and the Hollanders is one◠they should not be seised upon the account of being sailed with Hollanders and 〈◊〉 to the other ground the Passes and Testimonies prove sufficiently that the Goods belong to Clepan in Bruges and there is but one Testimony of the Skipper that Revier is Owner which Testimony was taken at Linlithgow the Clerk or Interpreter having Interest in the Caper and the Skippers Testimony being again taken by the Admiral at Leith says nothing of Revier and albeit it did he is but one Witness and any Hollander deserting Holland the time of the War ceases to be an Enemie because the King invited such as would desert his Enemies to come live in England◠so that it is both his Majesties Interest and Intention in any way to weake◠his Enemies by causing their Subjects desert them It was answered for the Privateer that the Strangers could not pretend Right to the Spainish Treaty seing they wanted a Pass conform thereto and that it could not be inferred negative from the Spainish Treaty that seisures should only be for the Causes therein exprest there being no such Article in the Treaty and the Law of Nations and the Kings Proclamation being the Rule of War the Treaties with Allies do only explain or restrain the same and gives exceptions from the Rules for instance the Spainish Treaty makes Counterband not
the said Iudith leaves in Legacy 1200. Dollars due by the Estates of Bremen which was a part of her Inventar to her Husband and her three Children of the first Marriage there being no Children of the second Marriage whereupon Iohn Charles and Iudith Greigs pursues the Husband for the Legacy as having uplifted this Sum from the Estates of Bremen The Defender alleadged First That the Clause in the Contract of Marriage taking away the communion of Goods and making even the moveable Estate of either Party to return is against the Law of Scotland inconsistent and ineffectual for any Reservation or Provision in favours of the Wife doth ipso facto return to the Husband jure mariti which jus mariti neither is nor can be Discharged 2dly Albeit the first Contract of Marriage were consistent yet the Sum in question being provided to one of the Daughters of the first Marriage by her Contract upon condition to return to the Wife if the Marriage dissolved the Marriage dissolving it comes back to the Wife tanquam novum jus ex pacto acquisitum and so it falls under the Husbands jus mariti as well as any Sum acquired would 3dly The Husband uplifted this Sum by Commission from his Wife and so it must be presumed to have been spent in oneribus matrimonij at least the Husband must have Retention of his Expences in recovery thereof The Pursuers answered that albeit Provisions in Contracts of Marriage stating Rights in the Wifes Person to be enjoyed by her during the Marriage have not been Sustained in some cases yet this being a Provision of a return after the dissolution of the Marriage it is most consistent especially in this case where the Estate Contracted was abroad and the Contract it self made abroad where by the civil Law current there the Means of either Party doth return hinc inde and the profit thereof is only commonâ— stante matrimonio neither is the case altered by the Daughters Contract for both by the Law and that Paction the Tocher returning to the Mother who gave it in the same case it was it is hers by her first Right the second Right by the Marriage becoming void both by Law and Provision neither doth it import that the Husband lifted the Sum for by the Contract he is obliged to repay it and could only employ the Profit of it in oneribus matrimonij The Lords Repelled all these Defenses but allowed Expences to the Husband laid out by him in Recovery of the Sum. Lindsay and Swintoun her Spouse contra Inglish Supplicants Iuly 5. 1670. 〈…〉 Pursues his Debitor and craved him to be holden as Confest who not Compearing the Clerk was not clear to give out an Decreet because the Messengers Execution did not bear that the Defender was Personally Apprehended but that the Messeger came to his House and knew he was within and was forcibly keeped out by his Wife and thereupon Protested that the Defender might be holden as Personally Apprehended upon the Clerks stop the Pursuer gives in a Supplication desiring that he might either have out his Decreet holding the Defender as Confest upon this Execution or that he might have a Warrand to Cite the Defender at the Mercat Crosse of the Shire or Burgh where he dwells as being difficilis conventionis some were of opinion that he should be holden as Confest the Messenger proving that he was within or if the Execution had born that he and the Witnesses also had given a particular evidence of their Knowledge of his being within others thought that he should be holden as Confest unlesse the Defender could instruct he was alibi in regard of the Contumacy but the most resolved that holding as Confest being a solemn and important Certification peculiar to Scotland that this Assertion of the Messengers and his Execution should not be sufficient nor should put the Defender to alleadge alibi but that he should have a Warrand to Cite at the Mercat Crosse with Certification to be holden as Confest Arch-bishop and Presbitry of St. Andrews contra George Pittillo Iuly 6. 1670. GEorge Pittillo being called before the Prisbitry of St. Andrews for Scandalous Conversation with Agnes Mitchel two Ministers of the Presbitry were appointed to speak with him to whom he proponed he was Married to the said Agnes Mitchel and produced a Testificat of some Persons bearing that they were Witnesses to the Marriage but neither Designing themselves nor the Minister which being reported to the Presbitry they rejected the Testimonial unless the Minister and Witnesses were Designed and if they were Designed ordained the Party to make satisfaction for privat Marrying without Warrand and the said George not Compearing before the Presbitry so to do they for his Contumacy appoints the Process to be seen by the Arch-bishop who ordained the Party to be Excommunicat and accordingly he was Excommuâ—icat and now the Arch-bishop and Presbitry caused present a common Bill for Horning against the Excommunicat Person for Charging him to answer submit and obey the Censure of the Kirk this being brought by the Ordinar to the Lords to know whether they would pass the Horning in course or if they would consider whether the Sentence of Excomunication was orderly proceeded The Lords ordained two of their number to consider the Process of Excommunication and to hear any that did compear for the Party Excommunicat to Debate whether Horning should be direct thereon Before whom Compearance was made for the said George Pittillo who alleadged that Horning ought not to be direct because the Sentence was disorderly and unjust and because there was an Appeal to the Council yet undiscust and founded upon the late Act of Supremacy alleadging that the King and his Council were Supream in all Causes Ecclesiastick so that Appeals might be lawfully made from any Church-man or Church Judicature to the King and his Council And further alleadged that he being unclear to acknowledge the Bishop or his Presbitry and the King having now granted an Indulgence to many that did not acknowledge Episcopal Authority it could not be Contumacy in him not to Appear but he was content that it should be now cognosced whether he was in the Fault and if he were found Guilty he should Submit and make satisfaction which being Reported to the Lords and there being several other nullities in the Process of Excommunication which behoved to be cleared by the Warrands of the Process and having heard these of their number that are upon the Council declare that upon the Appeal the Council Remitted the Matter to the Arch-bishop The Lords ordained Letters of Horning unless Pittillo would presently offer satisfaction in which case they would give him a time and superceed the out-giving of the Letters Lady Lucie Hamiltoun contra Boid of Pitcon and others Iuly 8. 1670. THe Earl of Abercorn having Sold the Lands of Mountcastle to George Hay he gave the Earl a Bond of 4000. Merks bearing borrowed Money but being a part
the Testament was only Conditional and became void by the Earls Returning and making use of the other Testament and therefore Repelled the Defense in respect of the Reply and had no necessity to determine anent the Confirmation and Error alleadged Lindsay of Mount contra Maxwel of Kirkonnel Iuly 20. 1671. LIndsay of Mount being Donator to the Waird of the Estate of Kirkonnel by the Death of the late Laird and Minority of this Laird pursues the Tennents for Mails and Duties Compearance is made for the appearand Heir as having Right by Disposition from his Grand-mother to an Appryzing led at her Instance against her Son and alleadged that there could be no Waird because Kirkonnel the Kings Vassal was Denuded before his Death and his Mother as Appryzer was Infeft It was answered first That this Apprizing was upon a Bond granted by the Defunct to his own Mother for the behove of his Son and appearand Heir without any onerous Cause and so was null and simulat and a fraudful Contrivance in prejudice of the King as Superiour of his Casuality of Waird and that it was found in the Case of the Lord Colvil that a Vassal having married his appearand Heir in lecto It was found a Fraudulent precipitation in defraud of the Waird It was answered that the alleadgeance was not Relevant because there was nothing to hinder the Defunct to have Resigned in favours of his appearand Heir without any Cause onerous or to grant him a Bond that he might be Infeft upon Appryzing or to grant such a Bond to any Person to the Heirs behove he being in leige poustie and there can be no presumption of Fraud seing he might have obtained his Son Infeft directly which the King refuses in no case when the Granter is in leige poustie The Lords Repelled the Alleadgeance for the Donator and Sustained the Appryzing The Donator further alleadged that by the Act of Parliament 1661. betwixt Debitor and Creditor It is provided that the Debitor may cause the Appryzer Restrict himself to as much as will pay his Annualrent and the Debitor may bruik the rest during the Legal and now the Donator is in place of the Debitor so that what superplus there is more than will pay the Appryzers Annualrent must belong to the Donator It was answered that this Clause is peculiar and personal to Debitors and cannot be extended to Donators who are not mentioned therein because Debitors when they crave Restriction they are presumed as provident men to uplift the rest for satisfying the Appryzing or their other Debts or for their Subsistence and so being introduced wholly in their favours it cannot be extended in favours of the Donator to their prejudice For if the Appryzer Possess all the superplus will satisfie the Appryzing whereas if the Donator uplift the Superplus the Debitor will be hudgely prejudged neither the Appryzing nor any other Debt of his being satisfied thereby nor his Heir intertained therewith The Lords found that this Clause could not be extended to a Donator and that there could not be a Waird both by the Decease of the Appryzer and Debitor The Donator further alleadged that the Appryzing was satisfied by Intromission within the Legal which did extinguish the Appryzing as to all Effects and Purposes as if it had never been and all Parties return to their Rights as they were before the Appryzing and so consequently the Superiour and his Donator has the Ward Duties during the appearand Heirs minority after the Appryzing is extinct for the Appryzing being but a Collateral Security like an Infeftment for Relief it is jus resolubile and doth not fully Divest the Debitor who needs not be Re-seased as he would be in the case of a Wodset holden publick but the Debitors own Infeftment Revives and stands valide and the appearand Heir must be Infeft as Heir to the Defunct which cannot be till he be legitimae aetatis after the Ward It was answered that the Alleadgeance is not Relevant unless the Appryzing had been satisfied in the Defuncts Life for then his Infeftment would have Revived But if any thing remained due the appearand Heir hath the Right of Reversion as appearand Heir and Intromission thereafter cannot Revive the Defuncts Infeftment The Lords found that so soon as the Appryzing was extinct whether before the Defuncts Death or after the Ward took effect and the Donator had Right Laird of Birkinbog contra Iohn Grahame of Craigie Eodem die IN a Competition amongst the Creditors of umquhile Sir Robert Dowglass of Tilliquhilly a Disposition granted by Sir Robert to Grahame of Craigie was called for to be Reduced upon this Reason that it was granted by Sir Robert when he was a notorious and known Bankrupt and fled and was latent so that by the Act of Parliament 1621. he could not prefer one Creditor to another being in that Condition for that Act annuls all Dispositions made by Bankrupts without a just and necessary cause and there was no necâ—ssity nor Justice for the Bankrupt to prefer one Creditor to another It was answered that unless there had been legal Diligence at the Pursuers instance or that the Defenders Disposition had been without a cause onerous there is no ground for that Act to hinder any Debitor though Bankrupt to prefer one Creditor to another for if he had had the Money he might have payed any he pleased and the Cause is both just and necessary because he might have been compelled by Law to have done the same and there was nothing to hinder the Creditor but that as he might have first Appryzed so he might have taken the first Disposition from his Debitor 2dly The Pursuers Debt was for a Bargain of Victual Sold and Delivered to the common Debitor but a Month before the Disposition in question when he was alleadged to be Bankrupt The Lords found the last Alleadgeance Relevant and Assoilzied from the Reduction but did not decide upon the former alleadgeance Guthrie contra Mackarstoun Eodem die IN a Competition betwixt an Heir and an Executor anent the Rent of a Miln where the Tacks-mans Entry was at Whitsunday where the first Terms of payment of the Rent was at Candlemas and the second at Whitesunday the Liferenter having survived Candlemas and died before Whitesunday The question arose how far the Executor of the Liferenter had Right it being alleadged that the Executor of the Liferenter could only have Right to the one half the Liferenter having only survived the first Term as in House Mails The Lords found that the legal Terms of a Miln Rent being Whitesunday and Mertinmas the Liferenter having survived both the legal Terms had Right to the whole years Rent in the same way as in Land Rents and not to the one Term as in House Mails Sir George Maxwel of Nether Pollock contra Maxwel of Kirkonnel Iuly 21. 1671. IN this pursuit related the 11th of Iuly instant It was further alleadged for the Defender that the
as to their Lands and Goods in Scotland though they reside and 〈◊〉 abroad and no nuncupative Testament there can exclude the nearest of kin hâ—re Ianuary 19. 1665. Schaw contra 〈◊〉 The Law of England was found to reach the manner of probation of a Bond made there by an English-man to a Scots-man residing 〈◊〉 after the stâ—le of England and that payment to the Cedent was probable by the Cedents Oath and payment also probable by Witnesses Iune 28. 1666. Momâ—rlane contra Lord Melvil Yet a Bond by a Scots-man to an English-man in England after the stile of Scotland Registrable there was found Regulate by the Law of Scotland and noâ— taken away by Witnesses Ibidem A LEGACY of an Heretable Right was found null though in leâ—ge poâ—stie February 21. 1663. Wardlaw contra Frazer of Kilmundie A Legacy leâ—t of 600. merkâ— and in part thereof the Executors ordained to Discharge or give Back-bond of 200. merks due to the Testaâ—rix which Bond was found to belong â—o the Husband jure mariti and that being Moveable the Wife had but her half of it yet the Lords found that the Executors ought to make it upâ— to the Legataâ— as lâ—gâ—tum rei aliena scienter legatâ— for that being a palpable principle in Law they could not excuse the Wifes ignorance therein Iune 16 1664. Murray contra Executors of Rutherfoord A Legacy being special was found not to be abated proportionally with ordinary Legacies in case they exceed the Deeds part Iuly 21. 1665. Sprâ—â—l contra Murray A Legacy of a Bond in special was sustained though the Executor had an Assignation thereto from the Defunct seing the same Legacy might be made up of the 〈◊〉 Gear as being lâ—gatum rei alienâ— seing it was presumed that the Defunct remembred his own Assignation Iune 24 1664. Falâ—â—nâ—r contra Mcdâ—wgal LICENCE to pursue was sâ—stained without Confirmation though granted after the principal Testament was Confirmed being to a Creditor Iune â—0 1665. Stevinson contra Crawfoord Licence to pursue was sustained after Confirmation of the principal Testament and before Confirmation of Datives ad ommissa February 21. 166â— Scot of Clâ—rkingtoâ—n contra Lady Clâ—rkingtoun AFTER LIâ—ISCONTESTATION Alleadgeances instantly verified are receivable Iune 24. 1663. Bruce contrâ— Laird of Strâ—â—chan Litiscontâ—â—â—ation being made before the Commissars at a parties instance as Factor it was found relevant against that party pursuing as Executor Creditor being instantly verified February 10. 1663. Crawfoord contra Creditors of Inglis LOCVS PENITENTIAE was found to have no place in an agreement to take a lesâ— sum it being as pactâ—â— libâ—ratoriâ—m though writ was not interposed others of the parties Transactors having payed conform December 12. 1661. Hâ—pburn contra Hamiltâ—â—n of Orbiâ—â—â—um The like in restricting an annualrent to a part of the Lands â—ffected February â— 1666. 〈◊〉 contrâ— Hunter and Tennents of Cambâ— Locus 〈◊〉 was found competent to one who had bought Lands though he had written that he thought he could not be able to keep the Bargain and furnish the Money yet subâ—oyned that he would not pass from the communing and albeit he had received the Keyâ— of the House seing there was neither Minute nor other Wâ—â—t drawn up â—hâ—reupon Ianuary 28. 1663. Mâ—ntgomry of Skâ—lmorly contra Brown THE LORDS Sallatles or the Pensions of the King are not arrestable conform to a Letter of the Kings and Act of Sederunt February 8. 1662. contra Murray The Lords found themselveâ— competent to Iudge the Nullities of the Decreets of the Commission for Plantation of Kirkâ— which werâ— visible and instantly vâ—rified and needed no Reduction as that a Decrâ—et against an Heretor not called was null Ianuary 16. 1663. Earl of Roxburgh contra Kinnâ—â—r The Lords found themselves competent to Iudge upon the Iustice Generals Decreet for Assythment which hath but a civil effect for damnage December 16. 1664. Innes contra Forbâ—s of Tolqâ—â—â—nâ— The Lords gave warrant Summarly upon Supplication to take the person of a Bankrupt who was unexpectedly and fraudfully fled Novâ—mbâ—r 30. 1665. Creditors of Masson Supplicants The Lords albeit they are not Iudges in Causes Criminal yet they found themselves coâ—petent to Advocaâ—e a Criminal Cause of Theft but upon the old Act of Parliament of King Iamâ—s the second from â— Sheriff to the Iustice General February 21. 1â—66 contra Sheriâ—â— of Invâ—rnâ—ssâ— The Lords deposed a Writer to 〈◊〉 â—igneâ— for inserting an Article for possessing a party in Letters of Horning having no warrand for the said Article Ianuary â— 1669. Zeaman contra Monreiff The Lords upon a Bill for Horning upon Excommunication allowed the party Excommunicate 〈◊〉 object against the Groâ—nds of Excommunication who having founded upon an appeal to the King and Council The Lordâ— having had an account from the Council that they had Remitted that matter to the â—ishop did pass the Hoâ—â—ing Iuly 6. 1670. Archbishop and Presbytery of St. Andrâ—wâ— contra Pittillâ— LVCRATIVE SVCCESSOR was not inferred by a Disposition and Infeftment to the behove of the appearand Heâ—r but only in so far as was Lucrative 〈◊〉 valorâ—m Ianuary 14. 1662 Harper contra Hume of â—landergast Lucrative Successor was not inferred by a Disposition by an Vncle to his Nephew the Brother being alive who was not found alioqui successurus as in the case of an Oye November 22. 166â— Scâ—â— coâ—tra Bâ—ssâ—wel of Auchinleck Lucrative Successor was inferred by an Assignation of an Heretable Bond by â— Father to his eldest Son who would have succeeded him as Heir therein and that the same was not alike with Bonds of Provision wherein in Father 〈◊〉 only Deâ—itor to the Son Dâ—câ—mbâ—r â— 1665. Edgar contra Colvil Lucrative Successor was not inferred by accepting of a Tocher yet so as if the Tocher were exorbitant both Husband and Wife were found lyable to the Fathers Creditors for what was above a competent Tocher December 23. 1665. Burnet contra Lepers LIFE being presumed was taken off by the Parties being â—â— years out of the Counâ—rey and commoâ—ly â—olden an◠〈…〉 There waâ— also a Letter produced by a 〈◊〉 in the Waâ— bearing that the party was dead February 18. 1670. Lowry contra Drummond LIFERENTERS of an annuaIrent waâ— found Iyable for publick burden with the 〈◊〉 albeit the Act 164â— thereanent was Rescinded as being due in jure Iune 18. 166â— Fleming contra Gillies A Liâ—erenter being Infeft in a Liferent of Lands cum mâ—llâ—ndiniâ— was found to have right to a Miln builded thereafter upon the Land by her Husband but not to the abstracted Multures of his Lands except the Liferent Lands February 16. 1666. Lady Otter contra Laird of Otter A Liferenter being by her Contract â—nfeft in Lands obliged to be worth such a Rent besides Teinds and Feâ—-duties or at her option the heir was obliged to accept a Tack of the Lands for the like sum of free Rent by free Rent was not only understood free of Feu and Teind Duty as is exprest in