ineffectual as to the designed end of the same do therefore statute and ordain That all Decreets of Bonorum and Charges to put at liberty to be raised thereupon shall thereafter contain the hail tenor of the Act of Sederunt above-written And that the Magistrats of Burghs shall not put out the Partie in whose favours the Decreet and Letters are granted untill first they put on the habit and come out of the Tolbooth betwixt 9. and 12. a clock in the Fore-noon with the habit on them as is prescribed by the Act. And ordain the Clerks of the Session the Keepers of and Writers to the Signet and others having interest to be careful that this Act be punctually observed And ordain a Coppy thereof to be delivered to the Baillies of Edinburgh to be Registrate in their Books and keeped for the entry and liberty of Prisoners in their Tolbooth ACT ordaining Advocations or Suspensions of Processes for Conventicles to be only past in presentia or by the three Lords in vacant time Iune 24. 1673. THis day the Lords ordained that no Bill of Advocation be past of any Processes depending before the Sheriffs and other Judges ordinary against Persons guilty of keeping Conventicles unless the same be past in presentia during the sitting of the Session or by three Lords met together in time of Vacancie and that no supension be past of Decreets given upon those Processes except upon Consignation of the sums decerned or in presence of the whole Lords or in time of Vacaâ—cie by three Lords And appoint Intimation hereof to be made to the Clerks of the Bills Letter anent Prizes Iuly 8. 1673. THis day the Lord Chancellor produced in presence of the Lords a Letter directed from the Duke of Lauderdail Lord Secretary by His Majestie 's Command to the Lord Chancellor President and remanent Senators of the Colledge of Justice which Letter being Read in presence of the saids Lords they ordained the same to be Recorded in the Books of Sederunt whereof the tenor follows For the right Honourable The Earle of Rothes Lord Chancellor of Scotland Sir James Daâ—ymple of Stair President of the Colledge of Iustice and the Remanent Senators thereof Whitehall Iune 30. 1673. My Lords Since the Receit of Yours of the 25. January I have been using my best Endeavours to know how to satisfie your Lordships desire therin And now having acquainted the KING tâ—erewith in presence of divers of his Council here I am commanded by His Majesty to let you know that the Treaty of Breda is certainly void by the War and that no Ally can claim any benefite thereby when they carry any provision of Victual or other Counterband Goods to the Ports of Our Enemies or when they have Goods belonging to Enemies on Board As to the other part of the Letter it was deliberatly thought fit in the Council of England That any number of the Dutch Nation being found aboard should not confiscat Ship and goods as it did during the last War and therefore that Article was kept out of the Rules which were given to the Court of Admiralty here in England But if any part of the Ship belong to any Inhabiting within the Dominions of the States-general the whole both Shipe and Goods are to be declared Prize and if the Master have his Residence in Holland you are left to judge in this case according to Law and as you shall think just I have likewise communicated to the KING your answers to the Swedish Envoys memorial And to the Complaints of the King of Polland and the City of Danzick which did give a great dale satisfaction to His Majesty and severalls of His Privy Council there who were presentâ— And Coppies of them were sent unto Sweden I am my Lord your Lordships most humble Servant Sic subscribitur LAUDERDAIL ACT for ordering new hearings in the Vtter-house Iuly 11. 1673. THE which day the Lords ordain any Lord who is to hear a Cause debated in the Utter-house before the Lord ordinary come forth shall go to the Bench and call the said Cause at 8 a clock in the morning And ordain the Advocats Clerks and Macers to be present and attend at the said hour and if no Procurators be present for that Partie that seeketh calling yet the said Lord shall proceed in making Act or Decreet and the said Cause is not to be heard any more thereafter And if none be appearing for the other Partie at the said hour or when the Cause shall be called then that Parties Procurators are not thereafter to be heard by the said Lord except the said Party or his Procurators give in two Dollers to the poor's Box. And ordain this Act to be recorded in the Books of Sederunt and intimate to the Advocats in the Utter-house Letter from His Majesty against Appeals Iune 17. 1674. THis day the Lord Thesaurer Deput produced in presence of the saids Lords a Letter direct from His Majesty to the Lord Chancellor Lord President and Remanent Senators of the Colledge of Iustice. Whereof the tenor follows CHARLES R. RIght trusty aud well-beloved Cusingâ— and Councilers Right trusty and well-beloved Councilâ—rs aud trusty and well-beloved We greet you well We received your Letter of the 28 February Last with an accompt of these Appeals given into you by the Lord Almond and Earl of Aboyne but could not then return any answer the Session being up And now upon full consideration of that whole affair We find it indispensably necessary for Our Service and the mentainence of Our Authority and for the quiet and security of Our Subjects in their Fortuns and Estates That the honour aud Authority of Our Colledge of Iustice be inviolably preserved and that there be an intire confidence in and defâ—rence to all the Decreets and Sentences thereof And after the Laudable Example of Our Royall Progenitors We do assure you that We will constantly mentain Our Authority exercised in that Court against all Incroachments Indignities and Reproaches that may be attempted against the same or against any of the Lords of Session whom We shall always cause to be held in special Honour as these who represent Our Person and â—ear Our Authority And as We cannot but declare Our dis-satisfaction with and abhorance of these Appeals So it is Our express pleasure that special care be taken to prevent the like practices for the future and for that effect that you cause solemn Intimation to be made to all Advocats Clerks Writeres and others who are members of or have dependence upon the Colledge of Iustice and others whom it may concern That none of them presume to advise consult propose plead speak or suggest any thing that doth import the charging of any of the Decreets and Sentences of the Lords of Session with In-justice whether in the Terms of Appealls Protestations Supplications Informations or any other manner of way either publickly in the exercise of their Function or privately in their ordinary conversation
Consideration the Litigiousness and Malitiousness of some Suspenders who upon frivolous and unjust Reasons and Grounds purchase Letters of Suspension and Advocation and will not at the Day of Compearance nor on any other of the Days appointed for Production of the saids Principal Letters of Suspension and Advocation produce the respective Letters aforesaid but keep the famine up of purpose to trouble vex and put to farther Charges and Expenses the Chargers and Parties Persuers in the Principal Cause Advocated to the saids Lords Therefore the saids Lords ordain the several Sums of Money following to be payed by the saids Suspenders and Purchasers of the saids Letters of Advocation to the Chargers and Parties Pursuers in the Principal Cause Advocated to the saids Lords And that upon their purchasing of Protestation or Act of Remit against the said Suspenders and purchasers of the saids Letters of Advocation viz. If the sum charged for be an hundred merks or within the same the sum of 8. lib. Scots and if the sum be above 100. merks or not a liquid sum the sum of ten pounds money foresaid And for every Remit the sum of 15. lib. Scots and ordains an Act to be extended hereupon in manner foresaid ACT for granting Commissions to Debitors who are sick or out of the Countrey on the Act Debitor and Creditor Iuly 31. 1661. THE Lords of Session considering that in prosecution of the Act of Parliament of the 12. of Iuly last anent Creditor and Debitor such Debitors as are far off the Countrey or are or shall be disabled by Sicknesse to come here to take the benifite of the Act will be thereby prejudged of the benefit thereof if some course be not taken to prevent the same They do therefore impower the Lord President or the Lord Register or any two of the Lords of Session upon Petitions and sufficient Attestations of the Sicknesse of any Debitor or of their being forth of the Countrey to give Commission during this ensuing Vacation to such Persons in the Countrey as they shall think fit to receive the Oath and Declaration of the Debitors conform to the said Act and to report the same betwixt and the day of November next to come to the Clerk of Register or his Deputs Clerk to the Bills to be Recorded with others of that nature ACT discharging Lessons the last moneth of the Session November 28. 1661. THE same day the Lords considering that in the end of the Session the giving way to Young-gentlemen to give proof of their Literature by making publick Lessons is greatly prejudicial to the Leidges that time which is appointed for hearing and discussing of Interloquitors being taken up with the saids Lessons Therefore the Lords renews a former Act made to the effect after-specified in Anno 1650. And of new ordains in all time coming That any who are to make their Lessons shall come and make them at such times of the Session as the hearing of them be not prejudicial to the administration of Justice and that none shall be heard to make such Lessons any time the last moneth of of the Session ACT anent Executors Creditors February 28. 1662. THE which day the Lords of Councill and Session considering the great confusions that arises amongst the Executors of Defunct Persons and prejudices sustained by many of them in prosecution of their respective diligences against the Executors of Defunct Persons and otherways by obtaining the saids Creditors to be themselves decerned Executors Creditors to the Defunct in prejudice of other Creditors who either dwelling at a far distance or being out of the Countrey or otherways not knowing of the death of their Debitors are postponed and others using sudden diligence are preferred In respect whereof and for a remeid in time coming The saids Lords declare and ordain that all Creditors of Defunct Persons using Legal diligence at any time within half a year of the defuncts death by citation of the Executors Creditors or intrometters with the Defuncts Goods or by obtaining themselves decerned and confirmed Executors Creditors or by citing of any other Executors confirmed the saids Executors using any such diligence before the expiring of half a year as said is shall come in pari passu with any other Creditors who have used more timely diligence by obtaining themselves decerned and confirmed Executors Creditors or otherwise It is always declared That the Creditor using posterior diligence shall bear a proportional part of the charges wared out by the Executor Creditor first decerned and confirmed before he have any benefit of the Inventarie confirmed and that it shall be lawful to the saids Creditor to obtain himself joyned to the said Executor and ordains these presents to be insert in the Books of Sederunt and to be Proclaimed at the the Mercat Crosse of Edinburgh ACT anent granting of Bonds be appearand Heirs whereupon Apprysings or Adjudications may follow in prejudice of the Defuncts Creditors THE said day the Lords of Council and Session taking to their consideration the manyfest Frauds and Prejudices done by appearand Heirs to the Creditors of their deceast Fathers or other Predecessors in their just and lawful debts Therefore and for preventing any such fraud for the future the saids Lords declare That if any appearand Heir shall grant Bonds whereupon Adjudications or Apprysings shall be deduced to their own behove or that the saids Apprysings or Adjudications shall return before or after the expyring of the Legal Reversion in the Persons of the saids appearand Heirs or any to their behoves In either of these cases the saids Apprysings or Adjudications shal no ways defend them against their Predecessors Creditors but that they shall be lyable as behaving themselves as Heirs to their predecessors by intromission with the Rents of their Estates so Adjudged and Apprysed nor shall it be lawful to them to renunce to be Heirs after such intromission and ordains an Act to be made thereupon and to be registrate in the Books of Sedernut and to be published at the Mercat Cross of Edinburgh ACT anent Advocats Expectants THE said day the Lords of Council and Session understanding that the greatest number of the Advocats and Expectants admitted since the first of Ianuary 1648. years Are deficient in paying of Dues to the keepers of the Box for the Advocats to wit twenty merks for every Advocate and ten merks Scots for every Expectant to the prejudice of the Box appointed for the poor and others their publick affairs Therefore the said Lords ordain all Advocats and Expectants admitted since Ianuary 1648. who are deficient in payment of the saids dues and all others who shall be admitted and receive the said respective priviledges in time coming to pay the saids dues to the keeper of the Box for the time And ordains Letters of Horning and Poynding upon sex days to be direct against the deficients upon a subscribed Roll by the Thesaurer and ordains no suspension to passe but upon consignation ACT discharging
Cautioner who were free to have pursued for the Tochar and did not and after 40. years she cannot be put to instruct that the Tochar was payed albeit she had been Debitor therefore her self much more when another is Debitor The Lords found both these replyes relevant Mr. John Colvil contra The Lord Balmirino Iuly 6. 1665. MR. Iohn Colvil as Executor confirmed to Umquhil Mr. Iohn Colvil Minister at Kirknewtoun pursues the Lord Balmirino for the Stipend the year 1663. and for the profit of the Gleib The Defender alleadged absolvitor because payment is made bona fide to the intrant before intenting of this Cause It was answered it could not be payed bona fide because the Minister died after Ianuary 1663. VVhich being so notour to my Lord Balmirino to whom the most of the Paroch belongs and he being so near it he ought to have made payment to no other of that year which belonged to the Defunct Minister as his Ann extending to the whole years quia annus inchoatus habeâ—ur pro completo as to the Ann so that if the Minister lived till the first of Ianuary he has that whole year The Defender answered that an Ann is only due to the VVife and Bairns of the Defunct Minister and this Minister had none 2ly That the point is so dubious in Law he knew not that it would be his unless he had lived till Whitsunday 3ly The benefit of the Gleib must be the intrants and falls not under the Ann as a part of the Stipend no more then the Manss The Lords repelled the Defense as to the Stipend and found it belonged to the Executor as nearest of kin and that the Defunct surviving the first of January gave him that whole year but found that the Gleib did not fall under the Ann nor did belong to the Defunct but only the Crop thereof if it were sowen by himself before he dyed Earl of Argyl contra Mcdougalls of Dumolich and Ziner Iuly 14. 1665. THe Earl of Argyl having raised a double poynding in name of the Tennents of certain Lands calling himself on the one part and Mcdougals on the other as both claming right to the Mails and Duties Mcdougals produce a Decreet of Parliament whereby they having pursued the late Marquess of Argyl alleadging that he had obtained the Right and Possession of these by Force and Oppression during the troubles whereupon his Rights were reduced and they restored to their Possession The Earl of Argyl produced his Seasine upon the Kings Gift with two Dispositions of these Lands granted to his Father one in Anno 1632. and another in Anno 1639. And thereupon craved to be preferred Mcdougals produced a disclamation of the Process in name of the Tennents and alleadged no Process because the Tennents who were pursuers past from the pursute It was answered that their names was but used that the Parties might discusse their Rights and so they could not disclame it being ordinar to use Tennents names in double poyndings It was answered that there was no Reason that Tennants should be forced to make use of their names to intervert their Masters Possession The Lords found that the Tennants could not disclame especially the possession being but late by Decreet of Parliament and was contraverse It was further alleadged for Mcdougals that there was nothing particularly lybelled as Rents due by the Tennants and therefore there could be no sentence The Lords repelled the alleadgeance and found the Sentence might be in general to be answered of the Mails and Duties as is ordinar in Decreets conform It was further alleadged for Mcdougals that seing this double poynding was in effect now used as a Declarator of Right no Process thereupon because in all Declarators Law allows the Defenders 21 days upon the first Summons and six on the next that they may prepare and produce their Rights and here there is but one Summons on 6 days 2ly No Process because Mcdougals being founded upon a Decreet of Parliament my Lord Argyl produces no Title but only a Seasine not expressing these Lands 3ly Decreets especially of Parliament cannot be taken away but by Reduction and not thus summarly It was answered that my Lord Argyl insisted here for taking away the pretended Decreet in Parliament and restoring the King and Donatar to the possession of the Lands so that in effect it is not so much a Declarator of a Right as a possessory Judgement And as for the Title it is sufficient to produce a Siasine seing in the Decreet of Parliament My Lord Argyls Right and possession is quarrelled as wrong and therefore was acknowledged to have been and seing Mcdougals produces no other Right and the King's Advocat concurres and if need beis my Lord Argyl offers to prove the Lands in question are parts and pertinents of the Lordship of Lorn exprest in his Seasine and albeit this be pretended to be a Decreet of Parliament yet by Sentence of Parliament since it is remitted to the Lords and is in it self visibly null as having been intented against my Lord Argyl and pronounced after his death and Forefaulture without calling the Kings Officers The Lords repelled these Defenses in respect of the replyes James Mathison contra Harie Gib Eodem die JAmes Mathison having obtained a Decreet before the Commissars of Edinburgh against Gib he Suspends and alleadges it was not a cause consistorial being a bargain of Victual and that it was not probable any other ways but by his Oath now after 12. or 13. years In respect of the Act of Parliament anent house Mails and others which comprehens this case The Lords repelled the alleadgeance and found that bargain of Victual not comprehended under that Act of Parliâ—ment James Borthwick contra Janet Skeen Iuly 15. 1665. JAmes Borthwick being Infeft in the Lands of Oversneip pursues Reduction and Removing against Ianet Skeen the Liferentrix It was alleadged that the Feer being minor non tenetur placitare super haereditate paterna And for the Liferenter that the minor was oblidged to warrand her Liferent-right and her Possession was the minors Possession so that if her Right were reduced and she removed the priviledge of the minor were altogether overthrown It was answered That the priviledge was personal and stricti juris and was to be extended to Majors and as for the warrandice it was never sustained as a ground to exclude a Reduction because warrandice would be inferred against a Minor which is but a personal obligement and not haereditas The Lords repelled the alleadgance for the Liferenter Who alleadged further that her Right being Reduced the Fee was absolute in the person of the Minor who would not suffer the Liferentrix to be removed but she did possesse by the Minors tollerance It was answered that the Pursuers Reduction behoved to accresce to him and his Right and not to the Minors Right that he behoved to enter to the Liferenters possession which would not prejudge the Minor for if
The Creditors alleadged that the assignation being in the hands and custody of Mr. Alexander the Granter it must be proven by Writ he being dead that it was delivered and not by Witnesses for there is nothing more frequent then Parties upon intentions to subscribe Bonds Assignations and other Rights and yet do not de facto deliver them or if they have been delivered to satisfie them and retire them and if Witnesses were admitted to prove the delivery or redelivery of such Writs the Lieges would be in extream unsecurity contrary to our Law that admits not Witnesses above an hundred Pounds and therefore Chirographum apud debitorem repeatum praesumitur solutum which presumption cannot be taken away by Witnesses The Pursuer answered that though this holds in Bonds where there is a Debitor and no other adminicle to instruct the Debt yet this is an Assignation and the Cause thereof otherwise instructed and most likely to be truely done and it is offered to be proven that this Assignation was delivered back to Mr. Alexander to be made use of as Agent for the Pursuer The Lords refused to sustain this Member of the Probation but because of the poverty of the poor Woman recommended the case to the Creditors to be favourable to her and did forbear to write the Interlocutor Hay of Knockondy contra Litlejohn Eodem die HAY of Knockondy pursues Litlejohn for the damnage sustained by him by the fall of Litlejohns House called the Tower of Babylon whereby the Pursuers House adjacent was broken down The Defender alleadged First The Libel was not relevant unless he had been required to find Caution de damno infecto as is required by the Civil Law whereby if that Caution were not required there is an express Text in the Title de damno infecto that there shall be no Action but the Party shall impute his loss to his own negligence Likeas we have two special Statutes concerning ruinous Houses which prescrive the method of preserving them and making up the damnage none of which being followed the Defender is not lyable 2ly Whatsoever might be alleadged against the Heretor of the said House the Defender is only an Appryzer of a Liferent-Right for a small Sum and the Liferenter was not obliged to repair a Tenement manifestly ruinous that could not be preserved but with great Expence and Rebuilding much less the Appryzer who hath but a small Sum on it The Pursuer answered to the first Defense that his Libel was most Relevant Damnage upon any fault being due and Reparable by the Law of Nature and as for the Civil Law it hath no Effect with us in this point our Custom neither giving nor requiring such Caution much less refusing Action if it be neglected and as to our own Statutes though they be very convenient wayes for securing of damnage yet they are not exclusive nor have they any Clause except in these Cases and in that method Damnage shall be irrecoverable To the 2d it was answered The Pursuer was not obliged to know or enquire whether the Defender was Heretor or not but he finding that he was a Neighbour behaving himself as Heretable Possessor by uplifting the Duties he did pursue him and if need beis offers him to prove that he did require him to keep him skaithless though he took no Instrument thereon The Defender answered that he was not obliged to take notice of such Requisitions not being Solemn by Instrument The Lords found the Defender lyable albeit there had been no Requisition verbal or otherwise it being proven that the Ruinousness of the Tenement that fell was notour and manifest to the Defender himself whereby he was obliged either to demolish the House if it was not Reparable or to have quite his Possession to evite the imminent damnage of Neighbours Lord Colvil contra Feuars of Culross Decemb. 15. 1666. THe Lord Colvil as Heretable Bailzie of Culross having Charged the Lord Kincairn and others for the Taxation of their Lands in Culross conform to the stent Roll They Suspended and alleadged that the stent Roll contained a fifth part more then the Taxation It was answered and offered to be proven that it was the Custom of that and other Benefices at their meeting of making the Stent-roll to add a fifth part for Expenses and Charges of ingathering the Taxation The Defenders answered that if any such Custom were it was against Law and against the Liberty of the Subject who could be lyable for no payment but by Law or of their own consent or if any such Custome were it hath been by the consent of the Vassals or at least they have not questioned the same nor is there any ground for such an addition for the Kings Officers being obliged by their Office to Collect His Majesties Taxations they can demand nothing of them who payed without Process and if they be put to Process the Lords will modifie such Expences as they see cause The Charger answered That such immemorial Customes have the strength of Law and that it was done with the consent of all the Vassals who conveened and that it was the Suspenders fault that they conveened not to make the stent Roll which should not put them in better case then they had conveened or if they had conveened and disassented there is no reason that the dissassent of a few should be preferred to the consent of the most part who as they may Vot in the stent Roll for the Taxation it self in which the plurality carries so must they for the necessary Expences and all that can be alleadged with reason is that the Lords may modifie the Expences of a fifth part if it be too high The Suspenders answered that Law authorized the Feuars as a Court and Judicature to meet and stent which implyes a power to the Plurality but there is no such warrand for Expences as to which the consent of a hundred cannot oblige the dissassent of one or of one absent and the absents have loss enough that they have not a Vot in their own Stent The Lords sustained the Reason of the Suspension notwithstanding of the answer and found that no Expences nor any thing more than the Taxation could be stented to have effect against these who consented not but they would modifie Expences in case of Suspension as the Cause required but modified none in this case because a fifth part was Charged for more then was due Lord Newbeath contra Dumbar of Burgie Decemb. 18. 1666. THE Lord Newbeath having right from Iames Mcken who had appryzed the Lands of Burgie pursues Reduction and Improbation against young Burgie and Iohn Watson and insists on this Reason that any Rights they have are null and fraudulent being Contracted after his Debt and the Right granted to young Burgie is null as being but a base Infeftment not cled with Possession before the Pursuers publick Infeftment The Defender alleadged that his Infeftment was cled with Possession in so
Dispute whether his Fathers Authors were Infeft or whether his Father had disponed or not until his Majority that he might seek out his Evidences and defend himself Reid contra Ianu. 19. 1667. IN a Process betwixt Reid and whereof the Title was a Service of the Pursuer as Heir deduced before the Bailzie of Regality of Spenzie It was alleadged by the Defender that this Title was not sufficient seing the Service was not retoured It was answered that the Service being within the Regality and of a Person dwelling there neither needed nor used to be Retoured in respect the Service it self was in Record in the Bailzies Books It was answered that albeit a special Service of Lands within the Regality needed not be Retoured in the Kings Chancellary because there was no Precept thence to issue but the Service within the Regality was sufficient that thereupon the Precepts of the Lord of the Regality might proceed against the Superiour within the Regality who was Infeft but in a general Service which may be before any Judge whether the Heir Reside in his Jurisdiction or not there is no difference betwixt a Regality and any other Court but all must be Retoured in the Chancellary It was answered that the Regality having their own Chapel and Chancellary were not oblieged to Retour it in the Kings Chancellary Which the Lords found Relevant and sustained the Service Isobel Findlason contra Lord Cowper Ianu. 22. 1667. ELphingstoun of Selmes having given a Precept to Isobel Findlason and direct to the Lord Cowper that he should pay to the said Isobel a Sum owing by Selmes to her and receive Selmes Bond from her upon the foot of which Precept the Lord Cowper directs another Precept to Iames Gilmore to pay the said sum the VVoman not being payed pursues both the Lord Cowper and Iames Gilmore for payment It was alleadged for Iames Gilmore absolvitor because he had not accepted the Precept neither was there any ground alleadged for which he was oblieged to accept or pay the Lord Cowpers Precept Which the Lords found Relevant It was alleadged for the Lord Cowper that the giving of the Precept should not obliege him seing it mentioned not value received or any other Cause and therefore resolved into a meer desire It was answered that the giving of the Precept was an acceptance of Selmes Precept and behoved at least to import a Donation to be made effectual by the Drawer of the Precept or otherwise an Intercession or Expromission for Selmes The Lords sustained the Process and found the Lord Cowper lyable by the Precept to pay in case of none acceptance especially seing it was consequent to Selmes Precept direct to Cowper Mr. Iohn Mair contra Steuart of Shambelly Eodem die MR. Iohn Mair Minister of Traquair having obtained Decreet against Shambellie and the Parochioners to pay him 545. merks Expended for Reparation of the Manse and to meet and Stent themselves for that Effect upon which Decreet he took Shambellie with Caption whereupon he gave him a Bond of fourscore pounds for his part Shambellie now Suspends the Bond on this Reason that albeit it bear borrowed Money he offers to prove by the Chargers Oath that it was granted for his part of that Stent and that his proportion thereof casting the Sum according to the Valuation of the Paroch would not exceed fourty merks and that he granted this Bond for fear of Imprisonment It was answered the Reason was not Relevant to take away the Suspenders Bond being major sciens prudens and there was here no justus metus because the Caption was a lawful Diligence so that the giving of the Bond was a Transaction of the Parties which is a strong Obligation It was answered that the Suspender when he was taken at his House was sick and unable to travel yet the Messenger would carry him away and being at the Tolbooth gave the Bond rather than in that Case to go to Prison which was an irregular force and a just cause of fear but this addition was not proponed peremptory The Lords Repelled the Reason of suspension unless the said addition were also instructed instanter otherways it could only be reserved by Reduction ex metus causa Sir Henry Hoom. contra Tennents of Kello and Sir Alexander Hoom. Janu. 24. 1667. SIR Henry Hoom having Appryzed the Lands of Kello from Henry and Iohn Hooms and being Infeft pursues the Tennents for Mails and Duties Compearance is made for Sir Alexander Hoom Donatar to the Forefaultor of the said Iohn Hoom of Kello who alleadged that the Forefault Person the time of the Doom of Forefaultor was in Possession of the Lands in question in whose place the Donatar now succeeds and by the Act of Parliament 1584. It is Statuted that where the forefault Person was in Possession the time of the Forefaulture albeit not by the space of five years which would Constitute a Right to him that the Donatar must be put in Possession and continue five years in Possession that in the mean time he may search and seek after the Rebels Rights It was answered First That this part of the Statute is only in case the Rebel had Tacks or Temporary Rights which neither is nor can be alleadged in this Case Secondly The five years Possession must be reckoned from the Doom of Forefaulture after which the Kings Officers or Donatar might have attained Possession and if they did not their neglect cannot prejudge others Ita est there are five years since the Forefaulture and the Rents are Extant being sequestred It was answered that the Act Expresses not only in Case of Tacks but also in Possession and that the five years must be after the Possession began and not the Forefaulture The Lords found the alleadgance Relevant that the Rebel was in Possession and preferred the Donatar to the five years Rent after the date of the Forefaulture It was further alleadged that the Pursuers Right being but an Appryzing the Donatar would instantly satisfie the same at the Bar. It was answered non Relevat to retain by way of Exception but the Donatar behoved to use an Order and pursue a Declarator It was answered that in Appryzings an Order upon 24 hours Requisition was sufficient there being no further Solemnity required then that the Appryzer might come to receive his Money The Lords found that the Appryzing might be summarly satisfied hoc ordine Earl of Argile contra George Campbel Eodem die THE Earl of Argile pursues George Campbel to remove from certrin Lands who alleadged absolvitor because the Warning was null not being used at the right Paroch Kirk where Divine Service at that time was accustomed It was answered non Relevat unless it were alleadged that the other Kirk were Erected by Parliament or Commission thereof and that thereby the Old Paroch was supprest and divided 2ly Though that were alleadged it ought to be Repelled because it is offered to be proven that all VVarnings and Inhibitions
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
Prisoners seing they had actually received this Prisoner but their keeping him in a private house ten dayes while a Treaty was continued with the Creditor was found not to infer disobedience of the charge or payment of the debt Iune 8. 1670. Cheap contra Magistrates of Faulkland Magistrates were not found lyable for the debt of a Rebel escaping who was arrested in their Tolbooth but the arrestment was not formal and whereas it bear that upon Caption the Messenger came to the Tolbooth and commâ—nded the Prisoner to continue in Prison as being arrested for that debt and that in presence of the Iaylour and that intimation was made to the Magistrates seing the intimation to the Magistrates was altogether improven and the arrestment in presence of the Iaylour contained three Witnesses whereof one affirmed and the other denyed and a third was dead and the Messenger was then Excommunicate for Crimes Iune 18. 1670. Hay contra Magistrates of Elgin Magistrates were found lyable for the debt of a Rebel escaping out of their Tolbooth albeit the Tolbooth had â—our locked Doors without one another and that the Rebel had gotten in some Masons Tools and broken up all the Doors in the Night seing they had not Chains and Bonds locked upon the ouâ—er sides of the Doors to which the Rebel could not reacâ— albeit their custom was very ancient to put on Cat-bonds only upon Prisoners imprisoned for Crimes February 11. 1671. Will contra Town of Kirkaldâ—â— Magistrates were not found lyable for the debt of a Person Incarcerate in their Tolbooth whom they had suffered to go free up and down their Streets several times whereupon the Creditor took Instruments and Protestation seing the suffering the Prisoner to go out was necessary to mendicat his Bread being altogether indigent and that he went once to the burial of a Child of his own and that he continued in Prison and died there February 14. 1671. Bain contra Baillies of Culross Magistrates were not found lyable for the debt of a Rebel whom they suffered to come out of Prison with a Guard to go to the Kirk or to the Fields for health or any other necessary cause as to time past in regard of their common custome so to do but that in time coming they should let none go out except upon great hazard by sickness and upon Testificates upon Oath and when other application could not saâ—ely and timeously be made to the Council or Session Iune 14. 1671. Town of Breichen contra Town of Dundee MANDAT or Warrand of a Servant taking off Furniture from a Marchand for his Master and giving his Recept and bearing that he had received such Furniture in Name of his Master and for his use was found not to oblige the Seâ—vant to pay nor yet to instruct that he had warrand but tâ—e warrand was presumed as known to the Merchant unless it were proven that the Servant did otherwayes imploy the Furnishing than to his Masters use and specially in the case where the Master was dead long ago November 17. 1665. Howâ—eson contra Cockburn Vide Command Vide Wiâ—e February 4. 1665. Paterson contra Pringle IN MAILS AND DVTIES the not calling of the Deâ—enders Master was not â—ound Relevant as in a Removing nor may the Tennents alleadge peremptorly on their Masters Right which is jus tertiâ— but they should have intimate to him to compear for himself and they may yet Suspend on double poynding and call the Party and their Master Iune 10. 1665. Hume contra In the Mails and Duties of a House the damnage sustained by the Tennent by the fall of a Neighbouring house was found to be allowed Ianuary 2. 1667. Hamiltoun contra MAINTAINANCE of August and September 1650. being destinate for the provision of the Army and assigned to these who advanced the provisions they were not found to be excluded by any subsequent quarterings Iuly 27. 1665. Rae contra Heretors of Clackmannan Vide Devastation here singular Successours were not liberate Iuly 28. 1665. Inter eosdem The Maintainance appointed to be uplifted by Bogie by the Act of Parliament 1661. which excepts singular Successors who bought the Lands was found not to extend to an appearand Heir who brooks by an appryzing which as to him is Redeemable within ten years for what he payed for it here it was not alleaged that the payed sums equivalent to the worth February 8. 1668. Weyms contra Laird of Tâ—lquhon Renewed Ianuary 20. 1669. Inter eosdem The Maintainance 1648. to be upâ—â—fted by Bogie was found not to extend to these who had exemption upon consideration of burning by the King and Parliament 1651 though that Parliament was Rescinded and though all exemptions were excluded by Bogies Commission seing by the Act Rescissory private Rights done by that Authority were excepted Iuly 21. 1668. Weyms contra Campbel of Edenample Maintainance for the year 1648. was found to burden Lands though they were now in the â—ands of singular Successoâ—s who had acquired the time of the Act Iaâ—uary 23. 1669. Weyms contra Frazer of Toâ—lie MARRIAGE pursued by a Donatar was not excluded because the Pursuer instructed not that the Lands held of that Superiour nor held Ward seing he disclaimed not nor by the Superiours Subscâ—ibing Witness in the Vassals Contract of Marriage after the Donatars Gift it was also found that the Marriage might be pursued both Realiter personaliter against the Vassal to pay February 25. 1662. Arbuthnet of Fiddes contra Keith Marriage being decâ—rned by the Commissar to be solemnized upon a Bond granted by a Man to a Woman bearing a Child to be gotten under promise of Marriage and it being alleadged that the Woman had been unchast since which as it would annul so much more hindeâ— the Solemnization of the Marriage and it being alleadged that the Child born after was presumed to be the same man's who got the first and so obliged to solemnize the Marriage The Lords found the presumption held not where there was no formal Marriage and so the Woman behoved to prove the second Child to be this mans Ianuary 31. 1665. Barclay contra Baptie Marriage of an Heir was â—ound due as to the single avail albeit the Heir was Married before his Predecessors death by a fraudulent precipitation to exclude the Superior from the Marriage he being Married when his Predecessor was moribundus without previous Treaty or Proclamation the Predecessor dying within some â—ew â—ays and showing no other sufficient cause of the said precipitation but to exclude the Superiour here were adduced the Testimonies of Skeins explications upon Quoniaâ— atachiamenta de maritagio bearing that this was praxis forâ— in his time and expressing three Decisions thereof February 20. 1667. Lord Thesauâ—er and Lord Advocat contra Lord Colvâ—â— Marriage vide Contract Vide Clause December 20. 1664. Young contra Buchannan MELIORATION of a Liferenters House by her was â—ound to oblige the Feear after her death in quantum Itucrâ—s est by
have been addicted to any such base Acts formerly albeit the Petitioner and his Friends are ashamed in his behalf to plead any exemption from his deserved punishment which his riper years may cause him detest and abhore as an offence to the saids Lords and Scandal to his Friends and prejudice to the Party offended which the said Party offended willingly forgiveth out of respect to his Friends Therefore humbly desiring that the saids Lords for preventing such a publick Stain upon the Petitioner and his Friends by the said publick disgrace upon a youth of his years would be pleased to 〈◊〉 his Sentence as to the way and manner of the disgrace and infamy by 〈◊〉 his Imprisonment upon the Supplicants Charges till there be an occasion for Transporting of him beyond Seas or where the saids Lords shall judge convenient whether by way of banishment or otherwise during then Pleasure for which effect the Supplicant shall be obliged by Bond if the Loâ—ds shall require the same and in the mean time to be favourably pleasâ—d to discharge the Execution of the said Sentence Which Supplication being considered by the sâ—ids Lords they by their deliverance thereupon of the 16. of thus Instant granted Warrant to the Magistrates of Edinburgh to continue the execution of their Sentence pronounced against the said Hugh Riddel until VVednesday the 21. of this Moneth betwixt and which time if he should find sufficient Caution to contiâ—â—e in Prison upon his own Charges until an occasion shall offer for his Transportation to his Majesties Plantations in America and that he shall then remove to the saids Plantations and not return to this Kingdom under the pain of five thousand merks Scots Money to be disposed of as the saids Lords shall think fit in case he contraveen In that case the Lords declare they will dispense with the execution of their former Sentence and if Caution were not found to the effect foresaid betwixt and the said day they ordained the formerâ— Sentence to be then put in execution Likeas this day the Lords having considered a Bond of Cautionry produced subscribed by the said Iohn Riddel dated the 19. day of this Instant and finding the same to be conform to their foresaid deliverance therefore they have dispensed and hereby dispense with the execution of their former Sentence pronounced against the said Hugh Riddel upon the 15. Instant and grants Warrant to the Magistrates of Edinburgh to deliver the Person of the said Hugh to the said Iohn Riddel when he shall desire him in order to his Transportation ACT anent passing of Bills for liberty out of Prison Iuly 21. 1675. THE Lords considering that oftentimes where Parties have done ultimate diligence against their Debitors by apprehending them with Caption and Incarcerating them Bills of Suspension and Charges to set at liberty are presented and past in favours of these Persons without the knowledge of the Creditors at whose Instance they are Incarcerat and to their great prejudice thereby frustrating the diligence done by them For remeid whereof the Lords ordain That in time coming when any Person intends to give in a Bill of Suspension and Charge to set at liberty that he shall make previous Intimation of the same to his Creditor at whose Instance he is Incarcerat or arrested in Prison Personally or at their dwelling place by a Nottar before Witnesses mentioning the time when the Bill shall be presented in case the Creditors be within the Kingdom for the time and that the Instrument of Intimation to the Creditors under the Nottars hand be produced with the Bill of Suspension and Charge to set at liberty when the same is presented to the Ordinary upon the Bills otherwayes that the Bill be not past And the Lords ordain the Intimation to be special in the time when the Bill shall be presented being within the latitude of a Week that the Creditors may be at a certainty when to attend the same ACT concerning the granting of Protections February 1. 1676. THE Lords considering that divers Persons who are under the hazard of Caption for Debt pretending that they are cited to bear Witnesse in Processes depending before the Lords do upon production of a Charge given to them for that effect under Messengers hands procure Warrants from the Lords to Discharge the execution of Letters of Caption and Acts of Warding against them for some time albeit they be not made use of as Witnesses but only the said Charge impetrat by them from a Messenger that they may obtain the foresaid Warrant For remeid of which abuse the Lords declare that in time coming they will grant no Warrant for stopping of execution of Letters of Caption or Acts of Warding upon that ground that the Craver thereof is cited as a Witness in a Process unless with the Petition there be given in a Declaration under the hand of the Party Pursuer or Defender who adduces the Witnesses bearing that the Person who desires the said Warrand is really cited at his instance as a VVitness and that he is a necessary VVitness And the Lords declare they will fine the Party who gave the said Declaration if at the conclusion of the Cause it appear that there was Collusion in giving the same it being only done that the said Person might obtain a Personal Protection His Majesties Letter concerning the Clerks Iune 20. 1676. CHARLES R. RIGHT Trusty and well beloved Cousins and Counsellers Right Trusty and well beloved Counsellers and Trusty and well beloved We Greet you well We have often evidenced Our Affection to and Care of you the Senators of Our Colledge of Iustice and as VVe have Trusted you with the Distribution of Iustice and the preservation of the Rights and Properties of Our Subjects in that Kingdom according to Law and are very confident of your equal and expedite procedor in Iustice to all Our Subjects which is the most acceptable Service you can perform to Vs So VVe will suffer none of Our Subjects to reproach your Procedor much lesse these who serve before you and by your Favour and VVarrand have the priviledge to procure and plead for others who if they should be permitted to defame your Sentences might prove the unhappy Instruments to lessen the Honour and Confidence which hath been alwayes attributed to that Senate by Natives and Strangers and might diffuse the Leaven of Male-contents amongst Our People as if their Rights and Interests were not securely lodged and thereby make them more capable of evil Impressions and desirous of change And We do Require you by all means to suppresse and prevent all mutinous Courses which you have prudently adverted to and obviat by your Act of Sederunt of the 5th of January last wherewith We are very well satisfied And We do leave the Advocats and others of the Colledge of Justice to be Ordered by you in all things relating to their Imployments And We do further Require you to prevent and punish all Conbinations and
these Rights proceeding against him as appearand Heir to these predecessors and now assigned to him because there were other appearand Heirs specially condescended on nearer of Blood The Pursuer answered non Relevat to take away his Infeftment which behoved to be Reduced Secondly Non competit to the Defenders unless these nearer appearand Heirs were compearing for their Interest The Defender Replyed that the Infeftments having obtained no Possession and having proceeded only upon a Charge to Enter Heir against the Pursuer by Collusion It was competent by Exception seing there was no Service nor Possession nor any thing done that the nearer Heirs were oblidged to know and it was also competent to the Defenders not to deliver the Writs to any having no Right thereto they being lyable to deliver them to the nearest Heir of the true owner The Lords Repelled this Defense against the Exhibition reserving it to the Delivery in which they found it competent to the nearer appearing Heirs without Reduction Rentoun of Lamertoun contra Earl of Levin and Alexander Kennedy July 11. 1662. JOhn Rentoun of Lamertoun as Heir to his Father having charged the Deceast Earl of Levin for the Sum of due by him to umquhil Lamertoun The Earl suspended upon Compensation by six Bonds granted by umquhil Lamertoun to the umquhil Countess of Levin four of them to her self and after her Decease to her Daughters and two of them blank in the Creditors name which being done stante Matrimonio by this Lady did belong to her Husband jure mariti and not to her or his Daughters These Bonds were produced out of the hands of Alexander Kennedy sometime Master Porter of the Castle of Edinburgh who declared that he had the foresaid six Bonds in Trust from the umquhil Countess and the Laird of Lamertoun in Anno 1649. Levin being then Captain of the Castle of Edinburgh Lambertoun Constable and the said Alexander Porter and produced a Paper of Trust subscribed by Lambertoun and my Lady bearing that the Bonds were put in Alexander 's hands as a faithful Person whom both Trusted to be keeped till after the Ladyes Death and then delivered according to her direction against which Writes Lambertoun raised Improbation and Alexander Kennedy abode by the same and the Earl of Levin declared he made use of them upon the ground foresaid in his Improbation The six Bonds being written by Alexander Kennedy and Iames Rule who is dead and the Witnesses being George Watson Spittel and Young and in some of them Alexander himself all being dead but Alexander the Producer the direct manner of Improbation thereof ceassed and therefore they proceed to the indirect manner and give in many Articles of Improbation and the Earles Articles of Probation The Relevancy of which being Dispute to quadruplyes in Write and all Persons that either Parties desired being examined hinc inde and their Testimonies published to either Party and they having thereupon Dispute both as to the Relevancy and Probation in Write and being heard at last viva voce The Lords proceeded to Advise the Cause The weight of the whole matter lay in these Particulars mainly First For astriction of the Writs the said Paper of Trust holding in it two living Witnesses and one dead being true the Bonds related therein could not be false This Paper could not be Improven indirectly because the direct manner was competent by two living Witnesses whereof the one Deponed that the Subscription was like his Subscription as he Subscribed at that time being young and the third Witness being dead proves It was answered that the Witnesses insert proved not because comparatione literarum Crawford the Defunct's Subscription was altogether unlike his true Subscription produced Learmont sayes his Subscription was only like his and though Kill sayes it was his Subscription yet none of them Depones to have seen it Subscribed by any Body or by any Witness nor to know any thing of the time place or truth of the matter contained in the Writs being but an Evidence to keep the Witnesses in remembrance either of the Matter or of the Subscription of the Principal or themselves albeit they need not be proven here as in England by the Witnesses insert Yet in the case of Improbation if the Witnesses prove nothing of the Fact or Subscription as remembring that they or the Party Subscribed but only Deponing that it is their Subscription which can import no more of certain knowledge then that it is like their Subscription seeing none can swear that it may not be feigned so like that they cannot know it and albeit that would be sufficient where nothing is in the contrair Yet where there is strong presumption in the contrair as the Writ not being in the Parties hands but in the hand of a third Party malae famae and who hath at least betrayed his Trust never having made these Bonds known till six or seven years after the Countess of Levins Death and then offering to sell some of them to others and with all the Paper of Trust the Body thereof being written with one hand and the filling up of the Witnesses with another which no body hath or can condescend upon nor are Designed therein so the same being null by Act of Parliament cannot sufficiently astruct the truth of the other Bonds being in themselves suspect The Lords found the Paper of Trust not sufficiently to astruct nor the Testimonies not to prove it sufficient in respect of the grounds foresaid being instructed and the many presumptions against these Writs Therefore they improved the said pretended Paper of Trust. There was further produced for astructing the Bonds two Holographs alleadged Written and Subscribed by Lamertouns owns hand relative to the Bonds and Trust and for proving these were Holograph they produced a Holograph Accompt Book of Lambertouns and six Witnesses of whom three or four were without exception and the whole Deponed that they truly believed that the Holographs were Lamertouns hand and Lambertoun and the Lady Levins Subscriptions The question then was whether these Papers were so proven to be Holograph that they did sufficiently astrict the Bonds notwithstanding all the grounds instructed against them The Lords found Negative upon this consideration that when the Probation of Holograph is by Witness who saw the Holograph Writ Written and Subscribed albeit they be not instruct it is a full probation admitting no contrary probation but when it is only comparatione literarum or by Witnesses Deponing that they believe or that positively it is the hand writ of the Party that can import no more but that it is so like that it is undecernable for no man who saw it not written can positively swear with knowledge that it is impossible to fenzie the hand so like that it is undecernable and therefore holograph so proven admits a stronger contrary Probation and therefore the Lords found that the Evidents against the Bonds were stronger nor this Probation of holograph There was
understood presumptive nisi contrarium probatur as also they found the Defender his taking right to the Appryzing while being Tutor or continuing in Possession after satisfaction thereof by Intromission not to infer the passive Title and that the Gift and Declarator did take away the Heirship moveable unless it were offered to be proven simul or retenta possessione during the Rebels lifetime Lady Milntoun contra Laird of Milntoun February 27. 1663. THe Lady Milntoun pursues the probation of a Tenor of a Bond granted by Maxwel of Calderwood her Husband bearing that in respect of his Facility he might be induced to dispose of his Wifes Liferent and thereby redact them both to want and misery therefore he oblieges himself not to dispose thereof without his Wifes consent seing he had no means but what he got by her hereupon she used Inhibition which she now produces as an Adminicle and craves the Tenor of the Bond to be made up by Witnesses The Defender having alleadged that there behoved here to be lybelled and proven a special causus omissionis because albeit it were proven that such a Bond once was yet unless it were also proven how it was lost it must be presumed to have been given back to the Husband granter thereof whereby he is liberat and this is the course observed in the Tenors of all Bonds of borrowed Money The Pursuer answered that this was not like a Bond of borrowed Money the intent whereof is not to stand as a constant Right but to be a mean to get payment but this Bond by its tenor was to stand as a constant Right to preserve the Dilapidation of the Liferent and so cannot be presumed to have been quite by redelivery thereof albeit it had been in the Husbands hands The Lords before answer to this Disputeâ— Ordained the Pursuer to condescend what the effect of this Write would be if it were made up for if it have no effect there were no necessity to make it up The Pursuer condescended upon the effect thereof thus that it would be effectual as an Interdiction published by the Inhibition to annual and reduce the Disposition of the Pursuers Liferent made by her Husband without her consent in favours of Milntoun her Step-son 2. This Bond being accessory to the Contract of Marriage betwixt the same and the Marriage is pactum dotale and must have the same effect as if it were included in the Contract of Marriage and so is a Provision for Securing of the Pursuers Liferent to her self and that no Deed by her Husband without her own consent should be effectual The Defender alleadged that none of these Condescendences could be effectual not the first because if the foresaid Bond were an Interdiction it would have no effect unless it were instructed that the granter thereof were prodigus and if it were Instructed that he was rei suae providus it could take away the effect thereof because an Interdiction is nothing else but constitutio Carâ—â—torum prodigo where albeit it is done of course periculo facientis sine causae cognitione with us Yet if it be on an false Ground and Narrative its ineffectual 2ly Though it could be instructed that the Husband was levis yet the Interdiction is null being to his own Wife who cannot be his Curator being sub potestate viri Nor Curator to any other much less can her Husband be made her Pupil contrair to the Law Divine and Humane Neither could the Bond be effectual as a Provision adjected to the Contract of Marriage because it being from an Husband to his Wife so soon as he was Married it returned to himself jure mariâ—i because nothing can consist in the person of the Wife which belongs not to the Husband jure mariti being moveable except an Aliment formerly Constitute to her in a competent measure The Pursuer answered that she opponed the Bond and further offered to restore to the Defender all that he gave for the Disposition of her Liferent The Lords after they had Reasoned the several Points in jure and found that without the offer the Bond could not be consistent as an Interdiction in so far as concerned the Husband to annul the Disposition but were inclined to Sustain the same for the Wife in so far as might extend to a competent Aliment of her Family to her Self Daughter and Servants not excluding her Husband Yer they found the offer so reasonable to Repay the Sum Payed for the Liferent being 5000. merks and the Liferent it self being eight Chalder of Victual and eight hundred merks that they found the effect of the Tenor would be to Restore either Party hinc inde but desired the Pursuer to let the Defender keep the Possession of the House and Lands wherein there was many Woods newly cutted he finding Caution to pay her eight Chalder of Victual and eight hundred merks which his Father was oblieged to make them worth by the Contract of Marriage Sir William Gordoun of Lesmore contra Mr. James Leith Iune 10. 1663. SIr William Gordoun of Lesmore pursues Mr. Iames Leith of New-lesly as representing his Father on all the passive Titles and condescended that he behaved himself as Heir by meddling with his Fathers Heirship moveable and with the Mails and Duties of his Fathers Lands of New-lesly and Syde The Defender answered to the first that his Father could have no Heirship moveable because he dyed Rebel and so his hail Goods belonged to the King as Escheat 2ly If need beis he offers him to prove that he dyed not only Rebel but his Escheat was Gifted and so as a Confirmation takes away vitious Intromission Moveables So the Gift with the Escheat must purge vitious intromission with Heirship being before intenting of this Cause 3ly He offers him to prove that the Heirship moveable was Confirmed promiscuously with the rest of the moveables and that the Defender had right from the Executor which Confirmation though it could not be effectual to carry the Heirship yet it was a collourable Title to show that the Defender had not 〈…〉 miscendi but that he meddled by a singular Title and neither formerly drew an Heirship nor meddled therewith as Heir appearing The Pursuer answered to the first that it was not relevant that he was Rebel nor that his Escheat unless it had been Gifted before his Intromission as well as before intenting of the Cause and that the Defender had Right from the Donator To the second it was answered by the Pursuer that the promiscuous Confirmation was not sufficient because he offered him to prove the Defender Confirmed his own Servant to his own behove The Lords found that the Defenders Father dying Rebel was not sufficient unless it had been Gifted and declared before intromission and they found the Reply Relevant that the promiscuous Confirmation was to the Defenders behove As to the second Member of the Condescendence the Defender alleadged that albeit his Father was Infeft yet his
and albeit he had no active Title whereby to Intromet that cannot free him from being lyable passive more then a vitious Intromettor or one behaving as Heir but he ought either to have forborn or procured to himself a Tutory dative and unless Pro-tutors be universally lyable Pupils will be destroyed because any body will meddle with their Means knowing they are lyable but for what they meddle with and the Aâ—nualrent thereof which perhaps will not be made out against them but if they be universally lyable they will either wholly abstain or orderly Intromet by procuring a Title and albeit Overseers be not lyable in the first place yet they are tutores honorari lyble after the other Tutors are discussed As to the third the receipt of the Bonds albeit it bear in Custody yet it is proven by the Writs produced quod se immiscuit by uplifting the sums contained in some of the Bonds and therefore is lyable for the whole The Lords having heard and considered this case at length found that seing there was no Law nor Custom of ours to make a Pro-tutor lyable in all points as a Tutor and that the Civil Law oblieges not us but only we ought to consider the equity and expediency thereof and therefore they found that they could not condemn the Defender for omissions seing there is no Antecedent Law nor Custom and therefore found that as Overseer he was oblieged to nothing and that as Intrometter he was lyable for what he intrometted with and the annualrent thereof after his Intromission and found him lyable for the hail Bonds in his Tickets seing he meddled with a part of the Money thereof and found that if he had meddled with a part of the Sheep that would make him lyable for the whole Sheep of that Flock and the Annualrent thereof and found that his being Designed Tutor contrair to the Testament did not instruct but the Lords Declared that in cases occurring in all time comingâ— they would find Pro-tutors lyable in all points as Tutors and ordained an Act of Sederunt to be made thereupon and published in the House to all the whole Advocats that none pretend Ignorance Sir Alexander Hoom contra Iune 10. 1665. 〈…〉 pursues for mails and Duties of certain Lands It was alleadged for the Tennents no Process because they offered them to prove that they were Tennents by payment of Mail and Duty to Sir Alexander Hoom their Minister before intenting of this Cause and he was not called 2ly Absolvitor because they were Tennents to the said Sir Alexander who had a right of an Appryzing and Diligence thereupon anteriour to the Pursuers Right The Pursuer answered to the first non relevat in an action of Mails and Duties albeit it would be relevant in a Removing In which two Actions the Lords have still keeped that difference that in Removings the Heretor should be called because thereby his Possession was to be interverted but in Mails and Duties the Tennents might Suspend on Double Poinding and thereupon call both Parties Or if a Tennent did collude the master might use the Tennents name but double Poinding could not have place in Removings To the second it is not competent to the Tennents to Dispute their Masters Right which is to them jus tertij but they should have intimate to their Master to compear and defend his own Right who if he will compear and produce his Interest may be heard The Lords Repelled both Defenses unless Sir Alexander compear and produce his Interest A Letter from the KING Iune 14. 1665. THe Lord Ballantine The saurer Depute compeared and produced a Letter from His Majesty to the Lords bearing that His Majesty having heard a doubt moved before him whether Declarators of Ward Non-entries c. should be discussed before the Lords of Session or Lords of Exchequer His Majesty Declared His Pleasure that in the mean time till Hâ—s Majesty got further evidence and clearing therein such Actions should be pursued before the Lords of Session Which Letter was ordained to be Recorded in the Books of Sederunt Aikman contra Iune 15. 1665. AIkman having Charged upon a Bond of borrowed Money Suspended and alleadged that the Charge was truely for a Prentisâ— fee for a Royto a Writter who was oblieged to Educat him three years and it is offered to be proven by Witnesses that he beat the Prentise and put him away with evil usage within a year and an half and so can have no more at most then effeirand to that time The Charger answered that he could not devide the Probation in one single Defense both by Oath and Witnesses and that he could not take away Writting by Witnesses in whole or in part The Lords sustained the Probation by Oath and Witnesses as proponed Cruikshank contra Cruikshank Iune 16. 1665. GEorge Cruikshank pursues the Relâ—ct and Executrix of Cruicksshank his Uncle for payment of a Bond of 400. Pound The Defender alleadged absolvitor because the Defunct had granted an Assignation of certain Sums of Money to David Cruikshanks the Pursuers Brother wherein there was a Provision in favours of the Pursuer that the said David should pay to him aâ—thousand Pound which must be understood to be in satisfaction of this Debt in the first place nam nemo presumitur donare quamdiu debâ—t The Pursuer answered that the foresaid Rule hath many exceptions for it being but a presumption a stronger presumption in the contrair will elide it as in this case The Defunct had no Children and had a considerable fortone and the Pursuer and the said David his Brother were the Defuncts nearest of Kin and albeit the foresaid Disposition be not in the express terms of a Legacy yet it is donatio mortis causa for it contains an express power to the Defunct to Dispone otherwise during his life and in another Provision therein it bears expresly to be in satisfaction of Debt due to that other Party and says not so as to the Pursuer all which are stronger extensive presumptions that the Defunct meaned to Gift no less then the whole thousand pounds Which the Lords found Relevant William Wright contra George Shiel Eodem die WIlliam Wright as assigney by Iohn Shiel in Carlowrie obtained Decreet against George Shiel in Nortoun as Heir to Iohn Shiel his Brotherâ— for payment of two Bonds George Shiel Suspends on this Reason that the Assignation was gratuitous without onerous Cause which he offered to prove by the Assigneys Oath and offered to prove by the Cedents Oath that the Debt was satisfied The Lords having at length considered and Debated this Case among themselves whether the Cedents Oath could prove against an Assigney when the Assignation was gratuitous some were of opinion that it could not because nothing can prove but Writ or two Witnesses or Oath of Party and the Cedent is not the party but the Assigney and albeit the Cedent could be a Witness he is but one and because it
Procurator that might infer his being informed or having Warrand but only his taking a day to produce they would not sustain the Decreet unless the Charger instructed the same by proving the quantities White contra Horn. Novemb. 25. 1665. IN a Competition between White and Horn the one having Right by progresse to the Property of a piece Land and the other to an Annualrent forth thereof It was alleadged for the Proprietar First That the Annualrent was prescribed no Possession being had thereupon above fourty years 2ly The Original Right produced to constitute the Annualrent is but a Seasine without a Warrant and albeit the Common Author have given Charter of Ratification thereof yet it is after the Proprietars Seasine given by the Common Author to his Daughter propriis manibus It was answered for the Annualrenter to the first That the Prescription was interrupted by Citations produced used upon a Summons of Poinding of the Ground before the Baillies of the Regality of Dumfermling where the Lands ly As to the second that the Confirmation granted to the Annualrenter is prior to any Charter Precept or other Warrant granted to the Proprietar for as for the Seasine propriis manibus that has no Warrant produced The Proprietar answered that the Interruption was not Relevant because the Executions were null in so far as the Warrant of the Summons bears to Cite the Defender Personally Or otherwise upon the Ground of the Land or at the Mercat Cross or Shore of Dumfermâ—ing whereupon such as were out of the Countrey were Citedâ— and not upon 60. dayes but 25. which Reasons would have excluded that Decreet and therefore cannot be a legal Interruption As to the other albeit the Pursuers first Seasine want a Warrant yet it hath been cled with natural Possession and the Annualrentars hath not The Lords Repelled both these alleadgences for the Proprietar and found the Executions sufficient to interrupt albeit there were defects in them that might have hindred Sentence thereupon especially in re antiquâ the Lands being in Regality where the custome might have been even to Cite Parties absent out of the Countrey at the head Burgh of the Regality and the Shore next thereto and as the Proprietars Right was not Established by Prescription so they found that Possession could not give a possessory Iudgement to the Proprietar against an Annualâ—entar which is debitum fundi Mr. Iames Peter contra Iohn Mitchelson Eodem die MR. Iames Peter Minister of Terregh pursues Mitchelson for a part of his Stipend due out of the Defenders Lands who alleadged no Process till the Pursuer produced a Title to the Defenders Teinds seing he brooked them by a Tack It was Replyed he offered him to prove seven years Possession as a part of the Stipend of Terreghs Which the Lords sustained without any Title of Possession Bruce contra Earl of Mortoun Novemb. 28. 1665. IN an Action for making arrested Sums forthcoming between Brucâ— and the Earl of Mortoun The Lords found that the Summons behoved to be continued seing they were not past by a special priviledge of the Lords to be without continuation albeit they were accessory to the Lords Anterior Decreet against the principal Dâ—bitor which they found to be a ground to have granted the priviledge of not Continuation if it had been desired by a Bill at the raising of the Summons but not being demanded They found quod non in erat de jure Younger contra Iohnstouns Eodem die PAtrick Porteous having a Tenement of Land in Edinburgh provided his Wife thereto in Liferent and dyed before the year 1608. his Wife lives and Possesses as Liferenter Yet in Anno 1608. one Porteous his Brother Son was Served and Retoured Heir to him and Infeft as Heir and Disponed the Land which is come through three several singular Successors to Iohnstouns who are Infeft therein as Heirs to their Father in Anno 1655. Youngâ—r having acquired aâ— Disposition from Stephanlaw Porteus Residenter in Polland causes Serve the said Stephenlaw as nearest Heir to the said Patrick whereupon Stephenlaw is Infeft and Younger is Infeft There are now mutual Reductions raised by either Parties of others Retours and Rights wherein Younger alleadging that his Author Stephenlaw Porteous was the nearest of Kin in so far as Patrick the Defunct had four Brethren and Stephen Law Porteous was Oye to the eldest Brother whereas the other pretended Heir was Son to the youngest Brother which he offered him to prove It was answered for Iohnstouns Absolvitor from that Reason of Reduction because they had Established their Right by Prescription in so far as they had a progress of Infeftments far beyond the space of fourty years cled with Possession by the Liferenter whose Possession behoved to be accounted their Possession because the Act of Paâ—liament anent Prescription bears that the Person Infeft being in Possession by himself or by his Tennents or others deriving Right from him and therefore the Liferenters Possession is alwise the Fiars 2ly By the first Act of Parliament anent Prescriptions of Retours they prescrive if they be not quarrelled within three years And by the last Act of Parliament 1617. anent the Prescription of Retours they are declared to be prescrived if they be not pursued within twenty years And by the general Act of Prescription 1617. There is a general Clause that all Reversions Heretable Bonds and all Actions whatsomever shall prescrive if they be not followed within fourty years By all which Stephenlaw Porteous not being Retoured till the year 1655. nor having moved any Action against the first Retour This Action of Reduction and all other Actions competent are prescribed It was answered for Younger that he being Heir to maintain the right of Blood which is the most important Right competent by the Law of Nations no Statute nor positive Law can take it away unless it be express and evident for the right of Blood can never prescrive seing it is certain that a man may serve himself Heir to his Predecessor though he died a 1000. years since if he can instruct his Service And as for the Acts of Parliament alleadged upon they cannot take away any Right of Blood for the first Act of Prescription on three years expresly bears to extend to these within the Countrey as Stephenlaw was not and the last Act is expresly only in relation to Retoures to be deduced thereafter but this first Retour quarrelled was deduced long before viz. in Anno. 1608. As for the general Act of Prescription seing it mentions not Retoures but only Infeftmentsâ— Reversions and Heretable Bonds The general Clause of all Actions whatsomever ought not to be extended to Retoures especially seing the meaning of the Parliament appears not to have been extended by them to Retoures because the very next Act doth specially Order the prescription of Retoures As to the Iohnstouns Infeftments they have not the benefit of Prescriptions never being cled with Possession For the Liferenters
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
is enough that the Rebel is Cited and none would be prejudged who were not Cited and any may compear that pleases for their Entress The Lords Repelled the Defense and Forefault the amand given thereupon as being contrair to the common Custom Laird of Philorth contra Lord Fraser Iune 28. 1666. THe Laird of Philorth pursues a Declarator of Property of Lands lying about the Kirk-yard of Rathan and particularly that a part of the Land within the Kirk-yard-dyke is his Property and that therefore the Dyke ought to be Demolished and specially the Lord Fraser's Arms upon the common Entry of the Kirk-yard-dyke It was alleadged for the Defenders first absolvitor because the Pursuer had homologat the Right of the Kâ—rk as to the Kirk-yard-dyke and all within it in so far as he had buried the Dead of his own Family in the bounds in question and likewise his Tennents The Lords found the former part Relevant but not the latter unless he had been present at his Tennents Burials or otherwise had consented The Defenders further alleadged Absolvitor because the Minister and Parochioners of Rathan had possest the Kirk-yard and Dyke peaceably by the space of 30 years which is sufficient to give them a Right upon this Point There occurred to the Lords these Points first Whether less Possession then 40 years could Constitute the full Right of a Kirk-yard 2ly VVhether less Possession by burying of the Dead could take away anothers Property And whether simply or so as to give him Damnage and Interest 3ly VVhether an Interruption made after the Building of this Dyke by the Pursuers raising Summons shortly thereafter could operate any thing if the Defenders had bruiked since the Interruption by that space that would have been sufficient to Constitute a full Right before Interruption Many were of the opinion that Kirk-yards have as great priviledge as any Kirklands and that in Kirk-lands 10. years Possession before the Reformation or 30. years after according to the old Act of Sederunt of the Lords did Constitute a full Right as well as the long Prescription in other Cases and likewise that in Ecclesiasticis 13. years Possession did Constitute a Right decennalis triennalis possessor non tenetur docere de titulo and that accordingly the Lords were in use to decide in all such Rights But the Point to be decided was Whether Interruption once used endured for 40. years so that albeit 13. years would suffice yet the Interruption long before these 13. would alwyse be sufficient till the Interruption did prescrive by 40. years wherein many were in the Negative that as in a possessoy Judgement on 7. years if Interruption were alleadged it was always a relevant Reply that since the Interruption the Defender has Possest 7. years without Interruption so if 10. or 13. years be sufficient to the Kirk no Interruption preceeding but only such as are done during these years can be sufficient for if 13. years will take away the Solemnest Rights and Writs much more may it a Citation Others were for the Affirmative on this ground that in the short Prescription of 3. years in Spuilzies c. Interruption once used serves for 40. years so it must in this case for he that once Interrupts is alwise holden as continuing in that Interruption until it Prescrive or be otherwise past from But it was answered that it did Prescrive by Possessing 13. or 30. years in rebus ecclesiae Church-men seldom have or keep Evidents albeit in other Cases Interruption would only prescrive in 40 years Yet the plurality found that after Interruption no less then 40. years Possession was sufficient but reserved to the Lords the Question anent the ground in so far as dead were buried therein after Probation Iohn Mcmorlan contra William Melvil Eodem die WIlliam Melvil and one Hatter an Englishman both Residing in England gave Bond to Gawin Lourie Residing there after the English Form who Assigns it to Iohn Mcmorlan Melvil Suspends upon this Reason that he had made payment to Gawin Lourie the Cedent which he offered to prove by Gawins Oath and which could not be refused because he offered to prove that it was the Custom of England that the Cedents Oath can never be taken away by Assignation as it is in Scotland but that Assignations are only as Procuratories and that payment might be proven there by Witnesses to take away Writ It was answered that the Law of Scotland must regulate the case because the Assignation is according to the Scots stile and the Debitor albeit Residing in England was a Scots man and knew the Custom of Scotland The Lords found that the manner of Probation behoved to be Regulate according to the Custom of England and so that payment might be proven by witnesses or by the Cedents Oath yet so as the Cedent could not be holden as confest but the Debitor or Suspender behoved to produce him and move him to Depone Wherein the Lords so Declared because they were informed that the Suspender proponed the Alleadgeance because the Cedent was Quaker and would not swear at all Duke of Hamiltoun contra Duke of Buckcleugh Eodem die THe Duke of Hamiltoun as Collector of the Taxation having Charged the Duke of Buckcleugh for the Taxation of the Lordship of Dalkeith He Suspended upon this Reason that the King Possest these Lands Himself the years of the Taxation and so cannot demand them from the Suspender who is a Singular Successor The Charger answered that he had the Taxation from the King for a Cause Onerous viz. a Debt The Lords found the Reason of Suspension Relevant Dougal Mcpherson contra Sir Rory Mcclaud Iune 29. 1666. DOwgal Mcpherson pursues Sir Rory Mcclaud for payment of a Sum upon his promise and the Summons bears a Warrand to Cite him at the Mercat Cross nearest the place of his Residence being in the lsles whereupon the Pursuer craved him to be holden as confest The Defender alleadged that he was not Personally apprehended and so could not be holden as consest and that this Citation at the Mercat Cross was periculo petentis and not to be Sustained in the time of Peace when there was no Trouble in the Countrey The Lords found that Warrands for such Citations ought not to be granted by common Bills of course but only by the Lords upon special Bills in presentia but seing the Defender compeared they allowed his Procurator a long time to produce him Ianet Kid contra Dickson Eodem die JAnet Kid pursues Reduction of a Disposition of some Tenements in Forfar made by her Father on this Ground that the Disposition is subscribed but by one Nottar and one Witness and the Charter by one Nottar and two VVitnesses and so is null by the Act of Parliament requiring two Nottars and four VVitnesses in VVrits of importance It was answered that the Tenements being small the price of one exprest being 200. merks and the other 300. merks the foresaids two
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
him and all danger and that he would be loath to bid him do any thing would do him harm whereupon he did Subscribe as VVitness and saw not the Tutor Subscribe at all nor saw not his Name put to the VVrit at that time and that this was not at the Barns of Towy the time of the Lairds Death as the Date of the Paper bears but at Achready five weeks thereafter Ferguson Deponed that Captain Barclay having been his Tutor he induced him to VVrite over the Bond of 100000. Pounds whereof he had formerly gotten a Draught from Iames Midletoun Notar wherein Debitor Creditor Sums and Date were blank and that he filled up Umquhâ—â—â— Towy Debitor and the Captain Creditor and the Sum 100000. Pound and put in a Date as if it had been before the Lairds Sickness albeit it was truly after his Death and that the Captain shew him Towies Subscription in a Letter and caused him feinzâ—e it to the Bond as near as he could and likewise Depones that the Captains Brother was the other VVitness but that he saw not what the Deponent had done nor knew not thereof He also Deponed that he filled up the Date and insert the VVitnesses in the Disposition of the Estate of Towy at the Captains desire and made the Date to be at the Barns of Towy at the Lairds Death albeit it was done at Achready about a Month or twenty days thereafter and that there was no Subscription put thereto at that time but that the Captain told him that he would get the Tutor to put his Hand to it thereafter and that the Deponent refused to Subscribe VVitness because the Tutors Name was not thereat Upon these Testimonies both these VVitnesses and Steel who was formerly out upon Bail were put in Prison Henderson contra Anderson November 18. 1669. HEwat having made a general Disposition of his whole Goods and Geir to Anderson and thereafter having Disponed to Henderson his Creditor Henderson pursues Anderson for Reduction of his Disposition as being fraudulent in prejudice of Creditors without any equivalent Cause Onerous contrare to the Act of Parliament 1621. against fraudulent Dispositions The Defender aâ—leadged that the Reason was not Relevant upon the said Act because Hewat and Anderson were not conjunct persons and because his Disposition buir an Onerous Cause viz. for Sums due to himself and for 2000. Merks and other Sums for which he was Cautioner for Hewat and gave in a condescendence of the particular Sums and offered not only to Depone thereupon himself but to astruct the same by the Oath of Hewats Creditors to whom he payed The Pursuer answered that albeit ordinarly Dispositions amongst persons not conjunct bearing Causes Onerous were sufficient yet this Disposition being manifestly fraudulent in that it is omnium bonorum which the Receiver thereof could not but know to be in prejudice of the Disponers other Creditors to whom there was nothing left and so is particeps fraudis and likewise the Sum of 2000. Merks which is the only Cause specially exprest being instructed to be false by Discharges of the most part of that Sum by the Creditor to Hewat himself the remainder of the Cause being general ought to be instructed not by Andersons Oath but by sufficient Probation at least the verity of the Debt by Hewats Oath and the payment thereof by the Oaths of Hewats Creditors to whom it was payed and that it wa payed by Anderson before the Disposition at least that he was bound for payment thereof before the Disposition The Defender answered that Dispositions of Moveables are valide without any VVrit especially before any Diligegence done by the Pursuer and if these who acquire Moveables were obliged to instruct the Cause otherwise then by their own Oaths all Commerce would cease and the Defender having taken a Disposition in VVrit can be in no worse case then if he had none The Lords having considered the Defenders condescendence found that what waâ— due to the Defender himself by Hewat before the Disposition should be sufficiently instructed by Anderson's own Oath but as to what was due to him or payed by him for Hâ—wat after the Disposition and before any Right or Diligence of Hendersons that the same should also be allowed being instructed by Howats Oath and these who received the Sums and that accordingly Anderson should accompt for the whole Goods he meddled with and pay the superplus thereof to Henderson the Pursuer over and above the saids Articles The Creditors of Cowper and Balmerino contra My Lady Cowper November 25. 1669. THe Deceast Lord Cowper having made a Disposition of his whole Estate in Fee to his Lady and thereby having excluded the Lord Balmerino his appearand Heir therein Balmerino being unwillingly to Enter Heir to Cowper before he knew whether the Disposition would stand or not moves some of Cowpers Creditors and some of his own Creditors having Charged him to Enter Heir to Cowper to insist in the Reduction of the Disposition made to the Lady as being done by Cowper in lecto agritudinis It was alleadged for the Lady no Process at the Creditors of Cowpers Instance First Because they insist only upon Personal Bonds granted by the Lord Cowper and have no real Right to the Land and so cannot Reduce a real Right but upon a real Right So till they have Apprized the Lands they have no Interest 2dly Albeit Cowpers Creditors might Reduce the Disposition as betwixt conjunct Persons without an onerous Cause yet not upon the Reason ex lecto because that is a priviledge particularly competent to Heirs but not to Creditors as they are Creditors unless by real Diligences they state themselves in place of the Heir and so make use of his Right and Priviledge It was answered for the Pursuers that in that they were Creditors they had sufficient interest to crave it to be declared that the Estate of Cowper should be Affected with Apprizings upon Cowpers Debts due to them notwithstanding this Disposition which is all the Effect of this Reduction and as they may without any real Right Reduce or Declare as aforesaid upon the Act of Parliament 1621. against fraudulent Dispositions so they may declare that any Disposition done on Death-bed as it could not prejudge the Heir so it cannot prejudge the Creditors of the Defunct or his appearand Heir but that they may affect the said Estate with their Legal Diligences It was answered for the Defender that she repeats the former Defense And further alleadges that she is content to take off the interest of Cowpers own Creditors and to Declare that the Disposition shall be burdened with their Debts but adhered to her Defense against Balmerino's Creditors who though they produce an Apprizing yet it is posterior to the Summons and their Personal Debts can be no sufficient Title nor is there any produced It was answered for Cowpers Creditors that the Declarator in their favours was no way sufficient nor would not give
upon this Bond so unwarrantably filled up The Lords found the Declarator Relevant and Proven and therefore Decerned the said Bond null reserving Action against Kinghorn upon any Debt due by Kinghorn to Keith as accords Tutor of Colzean contra The nearest of Kin of the Pupil February 5. 1670. THe Tutor of Colzean having cited the nearest of Kin of his Pupil to hear and see it found and declared that the Pupils Lands were set too high and could not be keeped at these Rates and that the Tennents were in Arreir before his Tutory in great Sums which if he should exact would cast the Land waste and that it was for the good of the Pupil to set the Land at lower Rates which it might be able to pay and to quite so much of the Arreirs as the Tennents might pay the rest and be able to continue and Possess There being no compearance the Lords gave Commission to certain Gentlemen in the Countrey to Examine the Rate of the Land and the conditions of the Tennents who have reported several of the Rooms to be too high set and what ought to be given down and what behoved to be quite to each Tennent that was deep in Arreir to inable him to pay the rest and Lâ—bour the Ground The Lords approved the Report with these Qualifications First That the Tutor should Discharge nothing simply but only till the Pupillarity were past that himself and Curators might then proceed as they saw Cause and that the Tutor before any Abatement of the Rooms should cause make Intimation at the Mercat Cross of the Jurisdiction and at the Paroch Church that such Lands were to be set at such a place such a day and whoever bade most for them being sufficient Tennents should have them and that at the said day if a better Rate were not gotten the Tutor might then or thereafter set at the Rates contained in the Commission Daniel Cathcart contra Mccorquodail and Mr. Iames Mirk February 8. 1670. Mccorquodail having Married the Daughter of Mr. James Mirk he and the Barron of Mccorquodail his Brother are obliged to pay yearly 600. merks to the Wife after the Husbands Death and Mr. James Mirk is obliged to pay to Mccorquodail 7000. merks of Tocher Mccorquodail being Debitor to Daniel Cathcart Writer in Edinburgh in 600. merks He arrests the Tocher in Mirks hands and pursues to make forthcoming and for instructing produces the foresaid Contract of Marriage It was alleadged for Mirk that he is not obliged to pay or make furthcoming the Tocher unless his Daughter were secured in her Jointer for the Tocher and Jointer being the mutual causes of the Contract neither Mccorquodail nor any deriving Right from him by Assignation or Arrestment can demand the Tocher till they secure the Jointer and that exception is Relevant both against Mccorquodail and his Assignies It was answered for the Pursuer that if it had been provided by the Contract that the Tocher should have been employed for the Wifes security the Defense had been Relevant or there might be some pretence if there were an obligement upon the Husband to secure the Wife in Land or Annualrent for 600. Merks But the Contracters having agreed for no security for the future but having agreed upon a Personal security viz. of the Husband and his Brother the Husbands part of the Contract is performed and the Husband is no ways Creditor till his Death Which the Lords found Relevant and in respect of the conception of the Contract as aforesaid Repelled the Defense and Decerned Iohn Scot contra Alexander Cheisly and David Thomson February 9. 1670. IOhn Scot pursues a Declarator of Circumvention against Alexander Cheisly and David Thomson bearing that Alexander Cheisly having a Processe against the Magistrats of Glasgow for alleadged hindering the Executing of a Decreet and imprisoning him and being in an evil Condition in his Means he proposed to the said Iohn Scot his Good-brother that he must make use of his Name as Assigney to that Process lest his Creditors might affect any thing that might be obtained thereby and that Iohn Scot should give a Back-bond declaring that his Name was put in the Assignation upon Trust. In stead of which Back-bond he caused draw up a Bond bearing that forsomuch as Alexander Cheisly had Assigned Iohn Scot to a Process against the Town of Glasgow therefore and for other good Causes and Considerations Iohn Scot obliges him to pay to a blank Person 3850. Merks in which Bond Alexâ—nder Cheisly filled up David Thomsons Name and which Bond was obtained by Alexander Cheisly by gross Circumvention upon the absolute Trust the said Iohn Scot reposed upon the said Alexander for clearing whereof he condescends on these Points viz. that the said Iohn Scot was Goodbrother to the said Alexander Cheisly had been his Prentice and the said Alexander was his Curator and the said Iohn Scot is known to be a simple Person and the said Alexander Cheisly to be a subtile Person ready to take advantage Likeas it is evident that he did take advantage of the said Iohn Scot about that same time pretending that he was more able to act Iohn Scots Affairs then himself he procured Assignation from Iohn Scot to Bonds of twenty eight thousand Merks and put in the Assignationâ— Clause of absolute Warrandice albeit by a Back-bond of the same Date it be clear that the Assignation was only granted for Love and Favour and for Agenting the Matter and that the one half should belong to Cheisly for his pains and the other to Scot but prejudice to Scots obligements in the Assignation which could be no other but the Warrandice whereby albeit Cheisly knew that a part of the Debts were payed to Scots Father and a part was insolvent and that Scot who was Assigney by his Mother as Executrix had no more himself but Warrandice from her Deed yet by the absolute Warrandice he intended to be sure of the one half of the Sums although it s known that hardly the half will be recovered whereby Cheisly should have all and Scot who freely granted the Assignation should have nothing but less than nothing by being obliged to make up the half though so much were not recovered of the whole 2dly All the pretence of the Plea against Glasgow could never amount to 3850. Merks yet the Bond is conceived for absolute payment of that Sum albeit it was a meer Plea depending many years and Debated without success 3dly Cheisly himself did ever keep the Process and Assignation and did transact the Plea or a great part thereof with the Magistrats of Glasgow and got payment In this pursuit there was no Compearance for Cheisly but it was alleadged for David Thomson that whatever had past betwixt Cheisly and Scot no ground of Circumvention betwixt them could be Relevant to take away his Right who seeing the blank Bond filled up with his Name by Cheisly before it was brought to him and given to him
for Debt due to him by Cheisly and he being nowayes particeps fraudis Cheislies Fraud or Circumvention cannot prejudge him for albeit Extortion vi majori be vitium reale that follows the Right to all singular Successors yet fraud is not and reaches none but participes fraudis both by the Act of Parliament 1621. and by the civil Law L. It was answered for Scot that albeit it be true that an Assigney for an Oâ—erous Cause cannot be prejudged by the Oath of his Cedent and consequently by no Circumvention probable by his Oath yet in Personal Rights an Assigney is in no better case then the Cedent nisi quoad modum probandi but what is relevant against the Cedent and competent to be proven either by Writ or Witnesses is competent against the Assigney so that the Circumvention against Cheisly being inferred by pregnant Evidences and Witnesses and not by his Oath it must be effectual against Thomson whose Name being filled up by Cheisly is in effect Cheislies Assigney for so all blank Bonds are commonly found by the Lords to have the same effect with an Assignation 2dly Assignies without an Onerous Cause even as to the Oath of the Cedent or any other consideration are in no better case nor the Cedent but here there is no Onerous Cause appears for which Cheisly transmits this Right to Thomson for the Bond â—ears not that for Sums of Money due by Cheisly to Thomson or any other Cause Onerous on Thomsons part that Scot should be obliged at Cheislies desire to pay Thomson but only that because Cheisly had Assigned a Process to Scot therefore Scot becomes obliged to pay to Thomson 3dly As there is no Cause Onerous instructed on Thomsons part so his own Oath de calumnia being taken renders the matter most suspitious by which he acknowledges he got the Bond from Cheisly and that Cheisly was not then his Debitor for so great a Sum as in the Bond but that by payments made to him and for him thereafter he became his Debitor in an equivalent Sum but Depones that he hath nothing to instruct the Debt nor no Note thereof in his Compt Book though he be an exact Merchant and Factor so that there is no Evidence or Adminicle of an Onerous Cause instructed And lastly Albeit Parties getting blank Bonds bearing borrowed Money from the blank Person whosoevers Name is filled up the Bond then bears the Sums borrowed from him whose Name is filled up and cannot be taken away but by his Writ or his Oath but this Bond bears only a Process Assigned by Cheisly and no borrowed Money or other Cause by Thomson and Thomson living in the same Town with Scot whom he knew and is commonly known to be a simple Person and Cheisly a subdolous he ought before accepting of the Bond to have acquainted Scot of the filling up of his Name and if he had any thing to say and cannot now pretend that he acted bona fide but either must be in dolo or in lata culpa quae dolo aequiparatur The Lords found that having considered the Tenor of the Bond and Thomsons Oath Thomson was in the same condition as to the relevancy and probation of the Reasons of Circumvention against Cheisly and therefore found the Libel Relevant against them both to annul the Bond the Apprizings and Infeftment and all that had followed thereupon Naper contra Gordon of Grange Feb. 12. 1670. IOhn Naper as Representing his Father did Pursue William Gordon of Grange as Representing Hugh his Father for payment of 2000. Merks due by the said Umquhile Hugh his Bond and upon the said Williams Renuncing to be Heir obtaind Adjudication of the Lands of Grange and others in so far as might belong to the said Umquhile Hugh his Debitor his Heirs and thereupon did Pursue the Tennents for Mails and Duties In which Action it was alleadged for William Gordon now of Grange that he stands Infeft by Disposition from the said Umquhile Hugh Gordon of Grange his Father for Onerous Causes and Sums of Money undertaken and payed for his Father which was found Relevant and to evite the same the said Iohn Naper raised Reduction of Grange's Right granted by his Father ex capite Inhibitionis raised against his Father upon the said Bond before the Disposition made to this Grange which Inhibition being produced this day fourtnight it was alleadged for Grange that the samine was null because the Executions buir not a Copy to have been lest at the Mercat Cross at the publication of the Inhibition which the Lords found Relevant and now the Pursuer insisted on this Reason that the Disposition though it buir Onerous Causes yet being after the Contracting of his Debt by a Father to a Son the Narrative bearing the Cause thereof is not Probative against a third Party but the same must yet be instructed Which the Lords Sustained and ordained Grange to produce the Instructions thereof William Lowry contra Sir Iohn Drummond Feb. 18. 1670. UMquhile Sir Robert Drummond of Meidup having Disponed the Lands of Scotstoun to Sir Iohn Drummond of Burnbank Mr. Iohn Drummond Writer in Edinburgh his Grand Nevoy intending to Reduce that Disposition as on Death-bed grants a Bond to William Lowry of 12000. Merks who thereupon having Charged the said Mr. Iohn to enter Heir in special to the Lands of Scotstoun to the said Sir Robert his Grand Uncle Apprizes from him all the Right of the Lands that might be competent to him if he were entered Heir and thereupon raises Reduction of Sir Iohn his Right as being granted by Sir Robert on Death-bed in prejudice of his nearest Heirs in whose place the Pursuer now is by the Apprizing It was alleadged for the Defender no Process upon any Charge to enter Heir against Mr. Iohn Drummond because he is not the nearest appearand Heir but has an elder Brother living The Pursuer answered that the said elder Brother had gone out of the Countrey 18. years agoe and was commonly holden and repute Dead likeas he produced a Missive of one Creiâ—htoun his Commerad in the War abroad bearing the Circumstances of his Sickness Death and Burial Dated Iuly 6. 1667. It was answered that semel vivus semper presumitur vivus nisâ— contrarium probetur and what was alleadged could be no probation but some probabilities of Death The Pursuer answered that the brokard is but presumptio juris and not presumptio juris de jure and therefore only transâ—ert onus probandi which Probation may be valid without Witnesses by such adminicles as the Lords shall find sufficient which are here sufficiently alleadged viz. long Absence common Fame and a Missive Letter The Lords found that eighteen years Absence and being holden and repute Dead was sufficient Probation to take off the presumption of Life unless a stronger Probation for the Parties being on Life were showen then the naked presumption thereof Lauchlen Lesly contra Guthry Feb. 19. 1670. LAuchlen
And 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
Exception by the Act of Parliament 1621. against fradulent Dispositions It was answered that the Disposition behoved at least to purge the vitious Intromission and did stand ay and while it was Redeemed For notwithstanding of the Tenor of the said Act the Lords do not Sustain that Nullity by way of Exception or Reply The Lords found the Nullity competent by way of Exception it being no Heretable Right requiring the production of Authors Rights but in respect of this colourable Title restricted the vitious Intromission to the single value Lord Lovet contra Lord Mcdonald Eodem die THe Lord Lovet pursues the Lord Mcdonald to count for the Superplus of a Wodset from the Date of his Instrument of Requisition in Anno 1663. whereupon he had raised Summons in Anno 1667. It was alleadged that the Instrument was at the Defenders Dwelling-house when he was out of the Countrey and bear no production of the Procutry and only an offer of a Bond with a Clause of Infeftment in all Lovets Land and did not bear an offer of Caution It was answered that the Act did not require Requisition by Instrument but quaevis insinuatio sufficit and the Instrument bear Delivery of a Copy to the Defenders Lady in his House there being no Procutry for the Pursuer offered now to produce the same and a surety by Infeftment was sufficient the Act of Parliament mentioning no Caution The Lords found that the Requisition behoved to be by Letters of Supplement at the Cross of Edinburgh and Pear of Leith seing the Defender was out of the Countrey but Sustained the same as to the Procutry it being now produced and sustained the offer of Surety and Ordained it to be produced Reserving the Objections and Answers of either Party thereanent Iohn Boyd contra Hugh Sinclar Iune 17. 1671. JOhn Boyd having a Right to some Teinds in Orknay pursues Hugh Sinclar as Intrometter therewith who alleadged Absolvitor because he had Right to a Tack set to umquhil Sinclar during his Life and to his first Heir after him during his Life and nineteen years thereafter which is not yet expyred for though the Defuncts eldect Son survived him yet he was never entered Heir to him neither did he possess thir Teinds and Died shortly after his Father but it is not nineteen years since the second Son Died whos 's Retour is produced as Heir to his Father The Lords found that the eldest Son Surviving his Father although he never Possest was the first Heir as to the Tack and that he needed not be served Heir Alexander Alexander contra The Lord Saltoun Iune 20. 1671. THe Earl of Hadingtoun having obtained a Gift of Bastardy and ultimus hares of umquhil William Gray Provost of Aberdere did assign the same to Alexander Alexander with a Process thereupon against the Lord Saltoun for payment of 5000. merks due by him by Bond to the said umquhil William Gray The Defender alleadged that this Bond being granted for the price of Land bought by him from the Bastard and of the same Date with the Contract of Alienation thereof there was a Back-bond also of the same Date by which the said William Gray was not only obliged in Warrandice but also to procure himself Infeft holden of the Earl of Mar to purge an Inhibition at the instance of Ramsay and to procure a Right of an Appryzing at the Instance of the Lord Newbeath The Pursuer answered that the King or his Donator was not obliged to fulfill these Obligements of the Bastard which were not liquide nor special It was answered that the Gift of Bastardy or ultimus haeres not falling to the King by Forefaulture or any Delinquence but by Deficience of the Bastards Heir the Donator was in no better case as to the fulfilling of these Obligements then the Bastard or his Heir would be if they were pursuing upon the Bond who could not seek payment till the Obligements in the Alienation or Back-bond which were the Causes of this Bond were fulfilled Which the Lords found Relevant as to the special Obligements of obtaining Infeftment and purging the Inhibition and Appryzing but not as to the general obligement of Warrandice wherein no Distresse was alleadged Thomas Crawford contra Iames Halliburtoun Eodem die THomas Crawford having Charged Iames Halliburtoun upon a Decreet Arbitral for payment of a sum He Suspends and alleadged that he was Interdicted at that time and that the Interdicters did not consent to the Submission or Decreet Arbitral The Pursuer answered First That the Alleadgeance was not competent by Exception but by Reduction 2dly That Interdictions had only the same Effect as Inhibitions and did operate nothing as to Moveables or personal Execution even by way of Reduction Both which Defenses the Lords found Relevant John Neilson contra Menzies of Enoch Iune 21. 1671. JOhn Neilson as Assigney Constitute by Iohn Creightoun pursues Menzies of Enoch for the Rents of certain Lands in Enoch upon this Ground that there was a Tack set by James Menzies of Enoch of the saids Lands to the said Iohn Creightoun for nineteen years for payment of fourscore pounds Scots yearly of Tack-duty thereafter by a Decreet Arbitral betwixt Enoch and his eldest Son Robert he is Decerned to Denude himself of the saids Lands in favours of Robert reserving his own Liferent After which Decreet Robert grants a second Tack to Creightoun relating and Confirming the first nineteen years Tack and setting the Land of new again for five merk of Tack Duty in stead of the fourscorepounds After which Tack Robert Dispones the Land irredeemably to Birthwood but at that time Robert was not Infeft but upon the very same day that the Disposition was granted to Birthwood Robert Menzies is Infeft and Birthwood is also Infeft Birthwoods Right by progress comes in the Person of Iames Menzies the Defender Roberts Brother The Pursuer insisted for the Duties of the Land over and above the fourscore pounds during the Life of old Iames Menzies and over and above the Tack-duty of five merks after his Death For which the Defender alleadged Absolvitor because he produces a Decreet at his instance against Creightoun the Tacks-man Decerning him to Remove because he was then resting several Terms Rent and failed to pay the same and to find Caution to pay the same in time coming The Pursuer answered that the said Decreet was in absence and was null because the Defender Libelled upon his own Infeftment and upon a Tack set to Creightoun the Tacks-man by himself and there was no such Tack produced by him or could be produced because the Tack albeit it bear to be set by Iames Menzies yet it was only set by James Menzies his Father and not by himself The Lords found the Decreet null by Exception Whereupon the Defender alleadged that the Decreet at least was a colourable Title and he possessed by it bona fide till it was found null bonae fidei possessor facit
in the Letters that ought not to have been granted because Appryzings should only be in the head Burgh of the Shire or in communi patriâ at Edinburgh but especially seing the Warrand was obtained from the Lords of course among the common Bills without being Read or considered and so is periculo petentis and cannot prejudge the more formal Diligence of other Comprizers especially seing Lundy Appryzed of new for the same sums which will come in pari passu with the rest being within year and day It was answered that it is inherent in all Jurisdictions to continue Processes to new Dyets having keeped the first Dyet and that the Messenger by the Letters is Constitute Sheriff and there is no question but Sheriffs might and did prorogate Dyets in Appryzings and the Letters bears Warrand to fix Courts one or more and for the continuation it was but to the next day in regard of a great Speat the Appryzing being upon the hill in the open field the time of Rain and it being mâ—dica mora to the next day which will give no Warrand to an Arbitrary continuation by Messengers to what Interval they please And as for the place The Lords by Dispensation may appoint what place they see convenient and albeit the Dispensation had been of course and that therein the Clerks had failed yet the Parties obtainers of such Dispensations are secure thereby and ought not to be prejudged The Lords Sustained the Appryzing and found the Requisition now produced sufficient and found that the continuing of the Dyet for so short a time to be no ground of nullity unless the Competitors could alleadge a special cause that they did or might alleadged whereby they were prejudged by leading the Appryzing the second day rather than the first The Lords did also Sustain the Dispensation of the place and having perused the Practique produced at the Instance of the Lady Lucia Hamiltoun anent an Appryzing led at Glasgow by Dispensation They found that the Lords did not annul the Appryzing on that Ground But the Lords ordained that no Bill bearing Dispensation should pass of Course in time coming but upon special Reasons to be conâ—idered by the Lords or the Ordinary upon the Bills and that Messengers should not continue the Dyets in Appryzings but upon necessar Causes and ordained an Act to be insert in the Books of Sederunt for that effect Adam Gairns contra Isobel Sandilands Eodem die ADam Gairns pursues Isobel Sandilands as Representing her Father to pay a Debt of his and specially as behaving as Heir by uplifting the Mails and Duties of a Tenement wherein the Father Died Infeft as of Fee in so far as by Contract of Marriage betwixt Thomas Sandilands her Father and Iohn Burn and Isobel Burn his Daughter The said Iohn Burn provided the said Tenement in thir Terms viz. after the Obligements upon the Husbands part it follows thus For the which Cause the said Iohn Burn binds and obliges him to Inseft Thomas Sandilands and the said Isobel Burn the longest liver of them two in Conjunctfee or Liferent and the Heirs between them Which failzying the said Isobel her Heirs and Assigneys whatsomever By which Provision her Father being Feear and Infeft the Defender is lyable The Defender alleadged absolvitor because by this Provision of the Conjunctfee of this Tenement Isobel Burn the Defenders Mother was Feear and her Father was but Liferenter in respect the Termination of the Succession is to the Mothers Heirs yea and to her Assigneys which necessarly imports that she had power to Dispone And it is a general Rule in Succession of Conjunct-Feears that that Person is Feear upon whose Heirs the last Termination of the Tailzie or Provision ended especially in this Case where the Right of the Tenement flowes from the Womans Father So that if there were any doubtfulness it must be presumed that the Fathers meaning was to give the Fee to his Daughter having no other Children Neither is this Land Disponed nomine dotis And the Defender stands Infeft by Precept of Favour as Heir to her Mother and thereby bruiks bona fide and her Infeftment must Defend her till it be Reduced The Pursuer answered that by the provision the Husband was Feear and the Wife was only Liferenter because though the last Termination doth ordinarly rule the Fee yet this is as favourable a Rule that in Conjunct Provisions potior est conditio masculi and though the Termination be upon the Wifes Heirs whatsomever yet they are but Heirs of Provision to the Husband and he might have Disponed and his Creditors may affect the Land which holds in all Cases except the Lands had been Disponed by the Wife her self without a Cause onerous But here the Husband is first named and it is but a small parcel of Land beside which there is no other Tocher So that though it be not Disponed nomine dotis Yet being Disponed for the which Causes it is equivalent and in the same Contract the Husband is obliged to provide all Lands that he shall Acquire or succeed to to himself and his Wife the longest liver of them two in Conjunct-fee or Liferent and to the Heirs between them Which failzying the one half to the Husbands Heirs and the other half to the Wifes Heirs and their Assigneys and it cannot be imagined that the meaning of these Clauses was that the Fee of the Mans Conquest and Succession should not be all Constitute in himself but that the Wife should be Feear of the half And in like manner the Fathers meaning is clear because the Clause bears not only in Contemplation of the Marriage but for sums of Money received by the Father which albeit left blank in the Contract yet it cannot be thought that in such a Narrative he intended to make his Daughter Feear And as for the adjection of her Assigneys it is only ex stilo for Assigneys is ever added after the last Termination of Heirs and does always relate to all the Feears and would extend to the Heirs of the Marriage their Assigneys as well as to the Wifes Heirs failing them Likeas Assigneys isin the same way adjected to the Clause of Conquest wherein there is no ground to imagine that the Wife is Feear and both bears the Husband and Wife to be Infeft in Conjunct-fee or Liferent The Lords found that by this Provision and Infeftment thereon the Husband was Feear and the Wife only Liferenter and found no necessity to Reduce the Defenders Infeftment as Heir to her Mother not proceeding upon a Retour but a Precept of Favour But they found that the dubiousness of the case was sufficient to free her from the passive Title of Behaviour but only for making forthcoming her intromission quoad valorem But it was not Debated nor Considered whether as bonae fidei Possessor by a colourable Title being Infeft as Heir to her Mother she would be free of the bygones before
by 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
Substitution was found not jure accrescendi to belong to the Surviver but 〈◊〉 Heir Substitute to the Deceassing without Children yet so as not to be lyable as Heir in solidum but quo ad valorem Iuly 3. 1666. Fleming contra Fleming A Clause in a Writ bearing a Narrative as a Testament and leaving such a 〈◊〉 Heir and Donator to such Tenenements and Assigning him to the Evidents with power to him after return to Recal was found effectual though not formal to inforce his Heir to perfect the same Ianuary 31. 1667. Henrison contra Henrison The same was renewed upon full debate November 4. 1667. and the being of the Writs in the granters hands after his Retuâ—n was found a sufficient Evidence of Recalling it but its coming back in the hands of the other party was found not sufficient to Revive it but they were ordained to instruct how they came by it whether as delivered back again by the Granter or found amongst his Papers November 14. 1667. inter cosdem A Clause obliging a party to pay such a sum as being the Annualrent of such a sum without any obligation for paying the principal exprest was found not to imply an obligement to pay the principal as acknowledged due but was found to constitute the Annualrent perpetual and not for the Womans life though it exprest not Heirs and Assignâ—ys February 2. 1667. Power contra Dykes A Clause in a Bond bearing a sum to be lent by a Father for himself and as Administrator for his Son aâ—d payable to the Father and after his decease to the Son but bearing that it was the Sons own Money not expressing how or from whom it came was â—ound to constitute the Son Feear and the Father Naked Liferenter February 14. 1667. Campbel contra Constantine A Clause disponing Lands was found to carry the Miln if the Lands were a Barony or if the Miln was not exprest in the Authours own Right otherways that it could not pass as part and perâ—inent February 15. 1667. Countess of Hume contra Tenents of Oldcambus and Mr. Rodger Hog A Clause in a Contract of Marriage whereby the Husband is obliged to take the conquest to the future Spouse in Conjunctâ—ee and the Heirs betwixt them Which failing the Heirs of the Mans Body which failing the Wifes Heirs whatsoever was found not to constitute the Wife Feear upon the â—ailing of Heirs of the Mans Body but the Husband February 20. 1667. Cranstoun contra Wilkison A Clause in the dispositive part of a Charter Cum privilegio piscaudi in aqua c. was found not to be a sufficient Right of Salmond-fishing unless Salmond-fishing had been thereby possesâ— forty years without interruption and so it is only a Title for Prescription February 27. 1667. Earl of Southesk contra Laird of Earlshall A Clause in a Bond bearing sums to be payed to a Man and his Wife and their Heirs beaâ—ing Annualrent though no Infeftment followed was found to give the Wifes Heirs no share seing the Money appeared not to have been hers and was presumed to be the Mans and he surviving did Revock the Substitution as a Donation betwixt Man and Wife Iune 19. 1667. Iohnstoun contra Cuninghame A Clause in an Assignation by a Father to his Daughter bearing a power to alter during his Life was found not to take effect by an Assignation to a third party who instantly granted a Back-bond bearing his Name was but in trust to do diligence and obliging himself to denude in favours of the Father his Heiâ—s and Assigneys but was not found to operate for the Fathers Heir but for the Daughter his Assigney Iuly 17. 1667. Scot contra Scot. A Clause in a Tack setting 14. Aâ—kers of Lands presently possest by the Tacks-man was found not to limite him to 14 Aikers of any present Measure seing he had possessed still since the Tack these 30. years albeit it was alleadged that besides 14. Aikers there were six Aikers severally â—enned and possest by different persons before that Tack Iuly 19. 1667. Daeâ— contra Kyle A Clause in a Bond bearing a sum borrowed from Husband and Wiâ—â— and payable to the longest liver of them two in Conjunctfee and to the Heirs betwixt them or their Assigneys which failing to the Heirs or Assigneys of the last liver was found to constitute the Husband Feâ—ar and the Wife Liferenter albeit she was last liver and the Heirs by the last Clause were but Heirs of provision to the Husband in case the Heirs of the Marriage failed Ianuary 26. 1668. Iustice contra Barclay his Mother A Clause in a Bond whereby a Woman obliged her self to enter heir of Line to her Father and to resign certain Lands in favours of her self and the heirs of her body which failing to the heirs of her Father and obliged her self to do nothing contrary to that Successionâ— whereupon Inhibition was used before her Marriage was found effectual against her and her Husband whom she Married thereafter and disponed the Lands to him and his heirs as being a voluntar deed without an equivalent cause onerous albeit by the said Bond of â—ailzie the heir of provision behâ—ved to be the heir to the Woman her self without discussing whether deeds done for causes onerous without collusion would be effectual against the said heir of provision Ianuary 28. 1668. Binnâ—â— contra Binnie A Clause in a second Contract of Marriage that the heirs of the Marriage should have right to Tacks acquired during the Marriage was found to extend to a new Tack obtained of Lands then possessed by the Father unless he had a Tack thereof before in Writ which if not expyred the new Tack would not be esteemed conquest if the new Tack were given for the old Iuly 3. 1668. Frazer contra Frazer A Clause in a Testament leaving a Legacy to a second Son in satisfaction of all he could befal by his Fathers deceass was found not to be in satisfaction of a debt due by his Father to that Son as having uplifted a Legacy left to him by his Mothers Father both not being above a competent provision by a Father in his condition to his Son December 15. 1668. Winâ—â—â—am contra Eleis A Clause in a Contract of of Marriage providing all the Husbands Goods and Gear acquired during the Marriage to the Wife for her Liferent use was found to be with the burden of the Husbands debt and only to be meaned of free Gear and not to exclude the Husbands Creditors at any time contracting December 23. 1668. Smith contra Muire A CLAVSE OF CONQVEST in a Wifes Contract of Marriage who was competently otherwayes provided was â—ound to carry the Lands conquest with the burden of a sum which the Husband declared under his hand to be a part of the price though the same would not hold in the burdening of heirs of conquest December 20. 1665. Lady Kilbocho contra Laird of Kilbocho This sum was due to the Seller of
intertainment and gratification to an Officer for a Guard and even though there were necessar Causes of the Prisoners coming out the Magistrate is not Judge thereof nor has any power of it but the Party ought to apply themselves to the Council or Session and obtain their Warrand which will not be granted even by them but upon instruction of a necessar Cause upon Oath of Physicians or others The Defenders answered that Incarceration was a civil effect of Law and no punishment and that it were against all humanity to put Prisoners for civil Debt in that condition that the Magistrates could not let them out for a little even for the safety of their Life in extremity of sickness which oftimes would not admit of delay till application were made to the Council or Session 2dly Whatsoever may be found just by the Lords in time coming yet the constant and universal Custom of this and all other Burghs to let Prisoners go out with a Guard when they saw convenient cause did introduce a priviledge to Burghs or put the Defenders in bona fide to Act as all their Predecessors had been accustomed to do without any question or Decision in the contrair and alleadged a late Practique in the case of the Town of Culross who suffering a Prisoner that was a poor man to go out to an Hospital where he got Bread and thence he immediatly returned to Prison and to go and see his nearest Relation that was a dying in the Town or to their Burial was not found lyable for the Debt The Lords considering the ordinary Custom of Burghs found that as to the time past they would not find them lyable for suffering Prisoners to go out with a Guard for any necessar cause and found the Defense Relevant that this Prisoner was let go out with a Guard for his health or to the Kirk on the Sabbath but found that Member of the Condescendence Relevant that he went out to the Street and Taverns without a necessar Cause though with a Guard Relevant to infer the Debt But found that in time coming they would have no regard to that unwarrantable Custome but that Magistrates of Burghs should only have power to let Prisoners come out of the Tolbooth under a Guard in the extream hazard of their Life by sickness and not without Testificats by Physicians or skilled persons upon Oath bearing the Parties condition to require the same and that without great hazard they could not suffer delay to make Supplication to the Council or Session The Lady Wolmet and Dankeith her Spouse contra Major Bigger Eodem die JEan Dowglas Lady Wolmet being by her Contract of Marriage Infeft in the half of the Lands of Wolmet did with her Husband consent to a Wodset of the whole Lands for 28000. merks wherein there is a Back-tack setting the Lands and Coal to her Husband and her the longest liver of them two for payment of the Annualrent of the Money which Wodset the said Iean in her Viduity as Tutrix renewed to the first Wodsetters Assigney and became personally obliged both for the principal sum and Back-tack-duty and took the Back-tack half to her self and half to her Son the Heir but after the first Wodset her Husband set a Tack of the whole Coal to his seven Children for twelve years they paying twelve hundreth merks yearly to the Wodsetter and two merks yearly to his Heir which Tack expired in Anno 1663. after which the said Iean Dowglas and David Cunninghame of Dankeith her Husband pursues Major Bigger as intrometter with the Coal for the half of the profite thereof conform to the Back-tack who alleadged Absolvitor because the Back-tack in so far as it exceeded the Ladies Joynture was a Donation between Man and Wife and was Revocked by the Childrens Tack and being once Revocked remained for ever Revocked because the ground of Law prohibiting Donations between Man and Wife and annulling the same nisi morte confirmentur is introduced ne mutuo amore se spolient and therefore nothing can make them effectual but the Husbands continuing in the same mind to his Death but any signification of alteration of his mind directly or indirectly though it were in his Testament or Codicil or by any Deed whereby he owns the thing Disponed as still at his Disposal is sufficient to annul the Wifes Right as if he should grant a Wodset of the same Lands though without mention of his Wifes prior Liferent given gratis stante matrimonio It would Revock the same so that though the Husband Redeemed the Wodset the Wifes Right would not Revive So here the Bairns Tack being of the whole Coal for twelve years doth wholly Revock the Back-tack as to the Wife not only during these years but for ever 2dly There is a minute of Contract betwixt the Husband his Wife and Raith of Edmonstoun clearly showing the change of his mind and restricting the Lady to her first Liferent It was answered that albeit in jure donationis or where there was a clear and liquid excess of the Right received exceeding the Right quite any Deed evidencing the Change of the Husbands Will might be sufficient to Recal it Yet that holds not here where the Lady quite a certainty for a Casuality viz. The profite of a Coal which might many wayes have been ruined and unprofitable in which case she would have nothing for her Joynture and so it was permutatio spei aut jactus retis and at the time of the Wodset was not of more value in buying and selling then the Joynture of the Lands being certain 2dly This not being a pure Donation the Husband could not Recal it till he had Restored his Wife to her first Liferent and releaved her of all Burden and Distress she had sustained by the Wodset neither had he shown his mind to Change but only in part And as to the Contract with Raith it was in Contemplation of a Marriage and was all founded on advancing Sums to Redeem the Wodset whereby the Back-tack ceased 3dly The Defender connot exclude the Pursuer unless he pay her all bygone years of her Joynture she wants from 1654 to 1667. by Arrestments and Processes upon the Back-tack and free her of the principal Sum and Annualrent and satisfie her of the damnage she has Sustained by lying out of her Liferent for all these years and sustaining a long pursuit wherein she is willing to acquiesce The Lords in respect of this offer and that the Defender did also offer to free and relieve her rested therein and did not proceed to advise the former Points in jure Bowers contra Lady Cowper Iune 16. 1671. BOwers pursues the Lady Cowper as vitious inâ—â—â—â—â—er with the Lord Cowpers Goods and Gear for payment of a Debt of his who alleadged Absolvitor because she had a Disposition from her Husband of his Moveables It was Replyed that the Disposition being between most conjunct persons without a Cause onerous was null by