Notwithstanding any extrinsical Abuses which may creep in to the best Judicatories it may plead for a Reformation but not a total Suppression All Causes are of necessity to be decided and Justice is always favourable But in some Causes as the Law speaks praedominatur favor publicum interesse and such and only such are the Subject of the Jurisdiction of the Commissarys as Causae Matrimoniales Testamentariae which are in themselves favourable and the Causes of Orphans and Widows of miserable Persons of Persons slandered and defamed of Ministers and their Readers for their Stipends in which the Condition of Parties pleadeth for favour not in the point of Decision which should be impartial and abstract from all respects but in the way of Procedure that it be both exact and summar that those Parties be neither dwanged by a long and expensive attendance nor wronged by a precipitant handling of their Business which Qualities seeming incompatible in a Judicial Procedure concur only when a particular Judicatory is allotted for such Causes and neither the throng of their Business can justle them out neither the Judge can have a pretext for shifting them The Gravity and Difficulty of Matrimonial and Testamentary Causes is so notour and the favourable Elogies of Law anent these Persons recommending thereby a Circumspect and as it were a Religious Handling of them are so obvious and frequent that they need not be repeated and it is certain that there is no Subject debated either in the Law it self or in the large Volumns of the Doctors with greater Prolixity and Subtility than the Causes of Marriages and Testaments (A) Authent de nupt Novel 22. in praesat verba sunt eximia alia omnia quae sancita sunt non omnibus competunt hominibus nec rebus nec temporibus studium vero nuptiarum totius est humanae so bolis ex quo etiam renovatur solo ampliori quam alia dignum est solicitudine humano generi Immortalitatem artificiosé videtur introducere It is remarkable that the whole ff being divided in _____ parts one whole part viz. the 5th containing 8 books teacheth de materia testamenti Videri possunt tit cap. de testam and the subsequent tit to the end decret l. 3. tit 11. de testam l. 3 decretal tit 26 de test succest lib. 42 per totum Clarus de testam §. testam Covar de testam genere tom 1. per totum ff de sponsalibus lib. 27. sequen tit ad fin lib. C. de nuptils lib. 5. seq tit ad 27. 4. decretal desponsalibus matrimonlis per totum decret causa 27. lib. 32. Inclusive Covar in 4. lib. decretal It is to be observed from Law and History that from these Reasons Matrimonial Causes and publicatio insinuatio Testamentorum which is with us the Confirmation of Testaments were neither entrusted to the lowest sort of Judges neither to Judges of great Employment about the decision of other Civil Actions to be decided in a tumultuary Way and promiscuously with other Causes but by a considerate Choice of Judges singled out for these Causes It was provided that neither the meanness of the Judge nor the greatness nor multitude of his other Employments should prejudge Causes of so great Gravity and Importance (B) Censores albeit magistratuum omnium maximae reverentiae potestatis penes quos erat regimen disciplinae communis And yet it was incumbent to them Remp. tucri non judicare de controversiis privatis competent to be judged by the Centumviri arbitri cognoscebant tamen de sponsalitiis de Repudiis divortiis matrimonio spreto male tractato Greg. Tholos lib 47. C. 16. de Censoris potestate Cujac lib. 11 ad lib. 39. Soluto matrimonio And with what Solemnities Testaments were confirmed appears by the Title of the ff and the Cod. de aperiendis testamentis and L. repetita C. de Episcopis It is clear that Insinuatio Testamentorum competebat tantum magistro Census And by the Law defensores Ecclesiarum are prohibited to meddle with the Confirmation of Testaments as absurd to be assumed by Church-men quibus est se ostendere peritos disceptationum forensium which words of the Law insinuate the disputable Nature of Questions incident at Confirmation of Testaments by reason whereof Churchmen were inhibited to meddle with them although many other Civil Causes were remitted ad Episcopalem Audientiam in that superstitious time The Law 18 Cod. de Testamentis Lex consulta divertia Ibid. are consonant to the Law Repetita and bears the like inhibition of Churchmen and intimation of absurdity if they should meddle Thereafter the Confirmation of Testaments was entrusted defensoribus Civitatum qui eligendi erant non vilissimi sed nobiliores and have a limited Jurisdiction in Causis Pecuniariis not unlike the Commissaries ad 50 solidos and thereafter 300 aureos as appears by L. Jubemus C. de Epist authent ibi inserta toto tit C. de defens Civitatum Though the favourable Nature of Consistorial Causes and the necessity of a several and peculiar Judicatory for them be evident for the Reasons and difficulty foresaid and from the Patern of Antiquity It will appear more clearly from representing the Inconvenients that will follow if Consistories be supprest and by answering the Objections against these Courts The Inconvenients are these 1. Omnis mutatio etiam in melius est periculosa Especially of a Fundamental Law and Policie which hath ever been alse ancient as any monument of Law and Policy in this Country (C) The Antiquity of the Practique of Consistories is evident from the Titles de Testam In quot partes dividuntur bona testatoris de testibus executoribus testamentariis and diverse others of the Majesty which were published in the time of K. David 1. about 500 Years since 2. Unless there be a Judicatory appointed for these Causes it cannot be conceaved how Defuncts Wills shall be observed how Minors Orphans Widows Legators and Creditors shall be secured 3. Whereas it may be conceived and as we hear is urged by some men who know not the nature of Testaments nor use of Consistories that a General Register may be keeped of Testaments as of Sasines and Hornings without necessity of Confirmation The keeping of such a Register cannot supply the want of Consistories if they should be supprest Because albeit a Register could be keeped of Testament Testamentars given up by the Defunct and presented to be registrate by Executors The Registration of them cannot be urged if the Executors be unwilling or the nearest of Kin who is possibly Interessed by the nomination of Executors and leaving of Legacies to keep up the Testament except there be a Judicatory for Confirmation of Testaments and Edicts served and Intromittors charged to give up Inventar Neither can any time be limited for registration of Testaments And the Certification of Nullity in case of not
Registrations within the time appointed should be Injustice because Testaments are not the Deeds of Parties concerned viz. Executors and Legators but the Wills of Defuncts which may be unknown to those who have most Interest and therefore the not Registration of them cannot be imputed to them as of Sasines and Hornings which are the Deeds of the Parties themselves and cannot be unknown to them 4. When Defuncts have not made Testaments it cannot be conceaved if there be not a Judicatory for Confirmation of Testaments how the nearest of Kin should be decerned and confirmed Executors Dative how Licences should be given quando dubia est haereditas and apparently damnosa and when haereditas est caduca and neither an Executor is nominate nor the nearest of Kin craveth to be confirmed how the Defuncts Goods should be preserved to Minors and Creditors if the Procurator-Fiscal be not decerned and either become comptable or a surrogation of Parties interessed And when Testaments have been already confirmed how shall Testaments ad omissa male appretiata non executa be expede How shall Executors Creditors be decerned How shall the intricate Questions be decerned and Disputs incident in the Confirmation of Testaments be decided anent the Nullity and Falshood of Testaments the competition of the nearest of Kin with the Executor Nominate of the Executor ad omissa with the Executor confirmed Of the Executor ad non executa with the Executor of the Defunct Executors anent the Praelation of Creditors and others of that nature The Confirmation of Testaments and the decision of Causes Matrimonial and Testamentary cannot be devolved upon the Lords of Session without great prejudice 1. Because the Lords are already overburdened with great Business and weighty Causes of Heretages and great Importance and therefore have been forced to discharge themselves of Actions possessory of Molestation Jam. 6. Parl. 11. Cap. 42. 1587. Ratifying a former Act of of the saids Lords whereby these Actions are remitted to other Judges because the multitude of Affairs before the Lords empeaches greatly the ordinary Course of Justice And it is not possible to the Lords to try the Verity so well which are the Words of the Act and Motive of making of it 2. The Lords have not time to hear Parties and urge earnestly calling and dispatch of the Businesses of greatest Consequence far less can they have time to urge Parties to confirm Testaments and to enquire and take course anent Defuncts Goods ne dissipentur to the prejudice of Creditors and Minors which should be done and is incumbent to the Commissaries ex officio albeit Parties urge not 3. The Lords Procedure by reason of multitude of Business before them is not peremptor and Parties after long and expensive attendance having prepared their Business for hearing cannot be assured to have them called and expede whereas Process before the Commissars are peremptor and Summons bear not continuations which is necessarly required in favourable Causes concerning Minors and poor People who cannot attend But especially in Edicts and Testaments which cannot bide delay least Minors Goods should perish And are so priviledged that in Vacant and feriat times they may be and are ordinarly expede without necessity of a licence All Questions and Causes and probation of Adultery on Impotency the Disputs whether frigiditas sit naturâ vel Arte utrum ante matrimonium aut superveniens Vtrum maleficium sit solubile an insolubile and others of that Nature cannot be agitate verecundé in so publick and eminent a Judicatory primâ instantiâ These Causes much less can be remitted to Sheriffs and other inferiour Judges 1. By reason of the Gravity and Intricacy of them (D.) Praetor etsi Patricius inter Maximos Magistratus Cognoscebat de Legatis peculiaris Praetor constitutus est qui de fideicommissis jus dicat hoc autem testamentariarum causarum membrum perexiguum est L. Si cui Legatum ff de condit demonst L. 2. ff de origine Juris § 32 ibi Cujac 2. The Sheriffs have either their Offices Heretable and Patrimonial or chosen yearly by his Majesty The first cannot have their Right of Jurisdictions enlarged to Causes of such gravity without a new Grant and Right from his Majesty and here how little favourable Heretable Offices are It is constant from Law and Reason by the Act 44. Ja. 2. Parl. 11. It is Ordained that no Office should be given in Fee and Heretage Skeen de verb. Sign in Verbo Sheriffs Because in Jurisdiction persona eligitur and both Heretable and other Sheriffs are known to be Gentlemen who understand not the Law nor the way of Process and are forced to delegate pedaneos Judices and to depute their Friends and Servants who have no knowledge of the Law and being changed yearly have no time to learn the least formality of Process (E) Sheriffs should answer for their Deputs Jam. 1. Parl. 1. C. 6. 1404. Ja. 3. Pa 5. C. 26. 1469. 3. Sheriffs who in Conscience and according to our Acts of Parliament are lyable to answer for their Deputs may think it hard that Causes of such weight and Difficulty which cannot be decided but by such as understand the Civil and Canon Law should be remitted upon their perrils to be Judged by Deputs 4. The Sheriffs Jurisdiction both Civil and Criminal is so large as is represented by the learned Skeen de Verb. Sign in Verbo Sheriffs that it cannot be extended without great Prejudices to Causes and Actions of a different nature Because Removings Molestations Ejections Services and other Actions competent to be judged by the Sheriffs are for the most part real and possessory and may be easily decided by the customary Law of the Country and Acts of Parliament Whereas Testamentary and other Consistorial Causes are in apicibus Juris and cannot be decided but by the Civil and Canon Law not authoritative but according to the equity of the said Law which must be known to those who are Judges in these Causes The prejudices and common Objections against Commissariots are these 1mo That they are Episcopal Courts 2do That Official Courts are supprest in England 3tio Exorbitancy of Quots and other abuses are great in these Courts That the first may be cleared It is to be considered that Jura Episcopalia are of two sorts 1mo Such as are usurped by Bishops as intrinsically inherent in the pretended Office of Bishops 2do Such as extrinsically belong to them by the Grant of Princes or otherways These of the former sort as their usurped Jurisdiction over their Bretheren are extinct with the Office The last sort is not to be supprest if they be useful and necessary Thus the temporal Jurisdiction of Bishops was Reserved to Baillies of Regalities conform to the Infeftment to be holden of His Majesty Thus Episcopal Patronages are not extinct but are to be disposed upon as the Estates shall think expedient sic de caeteris That
the Jurisdiction of Commissaries as it is now established is of this kind (F) There is an express Canon in decret dist 88. Episcopus tuitionem Testamentorum non suscipiat and the gloss explains tuitionem And it is clear from the _____ of the _____ of the decretal de Testamentis cap. 13. cap. 17 executio Testamentorum devolvitur ad Episcopum tantum cum aliquid Ecclesiae vel ad pios usus relinquitur tunc enim secundum piissimas Leges voluntates dilatas Episcopali studio decens est adimpleri Where the word Secundum piissimas Leges is considerable and argues that they had that priviledge only by Imperial Laws which is received in the Gloss and is cleared from the Cod de Episcop audient de Episcop Cleritis and from the Authent That Matrimonial causes were competent only to be judged in Civil Judicatories It appears 1mo Because it is clear from the Civil and Canon Law That consistorial Causes non pertinebant ad Episcopalem Audientiam in the times of the greatest Grandeur and in the most Superstitious Times And that Church-men were prohibite to medle with them as Absurd and most incompetent to be Judged by them as is evinced by Citations supra at the Letter B. But these Causes were assumed by these Judicatories in the Latter Times upon pretext that they were pious and favourable and by the Connivance of Princes (G) Theologi Germanicarum Ecclesiarum in articulis Smalcaldicis hanc jurisdictionem ex postliminio tantum jure exercuerunt quidem non adeo veteri ut ex Cod. Novel jure apparet causas se Matrimoniales à Magistratu politico diiudicandas vide Altare damasc p. 462. It is acknowledged by these who are most for enlarging Episcopal Government That jure municipali tantum confirmato Ecclesiastico ad Episcopalem Jurisdictionem pertinet Testamenta probare insinuari facere Beza de Repudiis Divortiis concludes Jure certe suo non tantum Prophetae sed Christiani Religiosi principes leges de conjugiis posecrunt Vide Altare Damas cap. 6. per totum 2do The Jurisdiction of Commissaries as it is now established was erected by Q. Mary in time of greatest purity and Reformation and a Commission granted by her to the Commissaries of Edinburgh An. 1563. And is warranted by diverse Acts of Par. Viz. Ja. 6. P. 1. C. 28. 1567. The which Year the Lords of Session made certain Instructions for the Commissaries of Edinburgh and other inferiour Commissaries By another Act of his 7 Par. 1581. which is the 26 in the Catalogue of the Unprinted Acts and containeth a Commission for confirmation of Testaments and placeing of Commissaries By an Act of his 12. Parl. 1592 the 25. of his Unprinted Acts Entituled a Ratification of the Commisariot of Edinburgh By the Act. 179. of his 13. Par. 1593. Ordaining Letters of Horning to be direct upon Decreets of Provosts and Baillies of Burrows as is granted upon Commissaries Precepts 3tio It is most evident from the 6 Act of his 20 Par. 1609. That the Jurisdiction of Commissaries is a Temporal Jurisdiction acknowledged by the Act to flow from His Majesty as well as any other ordinar Jurisdiction which His Majesty might have granted to any Subject as well as Bishops And which is granted by the said Act to the Lords of Session as His Majesties great Consistory for Reduction of Commissaries Decreets And which before he granted to the Earl of Argyle whose Heretable Right of the Commissariot of Argyle is reserved by the said Act. There is a great difference betwixt the Official Courts of England and the Commissariots as they are Established in this Country Because Commissariots being considered either Objectivé In regard of the Object and Causes Consistorial Or formaliter ratione modi quo versantur circa Objectum in regard of the way of procedure in these Courts Commissariots are Civil and Temporal Judicatories in both respects in respect of Confirmation of Testaments and Testamentary Causes and Matrimonial de impotentia Maleficio de Natalibus Bastards and others of that nature are incompetent to be Judged in Sessions Presbytries and Assemblies which are the true Ecclesiastical Courts and therefore is acknowledged to be meerly Civil because Summonds are direct by the Commissaries under the Signet of Office bearing His Majesties Name and Armes the Certification is Civil Witnesses are Summoned under Civil and pecunial pains and Letters are directed for compelling them to compear under the pain of Horning The Execution of Sentences is Civil by poinding or comprising for Liquidate Sums Or by a Charge to fulfil what is in facto upon the Commissars Precept Or by a Charge of Horning upon the Letters And by intenting Action of deforcement before the Commissaries or the Lords of Session But the Officials Jurisdiction was Episcopale Ecclesiastical in both the former Respects and was continued as it had been in the Popish Church The Bishops usurping the Jurisdiction that belonged to Sessions Presbytries and Assemblies and delegating to their Officials their Jurisdiction both Objective in Causes competent to be judged in Church Judicatories And Formaliter in the way of procedure competent only to the Church By the Canon of the English Church they were Judges in causa non modo instantiarum sed Correctionis disciplinae they had a Superintendance over Ministers to advert that they should do their Duty in their Charges Ministers and Church-men were accusable before them and being contumacious and not appearing might be Suspended and Excommunicate They were Judges whether Crimen be notorium publicum or not And upon pretext that it was not publick and Scandalous poterant mutare poenitentiam in mulctam pecuniariam They usurped Sacrilegiously the power of the Church and Ecclesiastick Censures and by the fulminating at random Excommunications for small matters as small Debts Viccarrage Teinds the Official and his Officers Fees and for Non-compearance in their Courts And by their easy Absolution upon small satisfaction and for Money made Excommunication contemptible (H) Vide Altare Damasc Cap. de officialibus Calv. Instit Lib. 4. Cap. 11. Sect. 6. For these and other Abuses intrinsical to the Judicatory it self These Courts have been long ago cryed down on these grounds by diverse Learned and well affected Men and lately supprest But the instance of their ruine cannot with reason be adduced to subvert Consistories they being altogether different and absolutely Civil in their Institution object and way of Process and no more Ecclesiastical than the Church Regalities which had an Extrinsical dependance on Bishops in the way of holding It is already cleared That if any Abuses be in these Courts they are not essential resulting upon the nature and Constitution of the Judicatory but accidental which may be Reformed without the subversion of so old and so useful a Judicatory 2do If Commissaries either be not qualified or corrupt It is wished they may be tryed and
having survived Quaeritur If she will be Fiar of the said Bond A Person having Infeft his Creditors for security of Debts and while they be payed respectively Quaeritur Quatenus They are Fiars whether in solidum or ex parte And qua parte Respondetur They are Fiars proportionally and ex parte effeiring to their Debt Fiars in TailÈies BY a Contract of Marriage Lands being given in Tocher and the Right thereof so conceived that they were Disponed to the Husband and the Gentlewoman in Conjunct-fee and Liferent and to the Heirs of the Marriage Whilk FailÈieing to the Heirs of the Husband his Body in any other Marriage Whilk FailÈieing to the Womans Heirs and Assigneys whatsomever Quaeritur who is Fiar Answer That though where there is but one degree of Substitution viz. FailÈieing the Heirs of the Marriage the Womans Heirs The Woman is Fiar Because res pertinet ad eos quorum haeredibus providetur But where there are diverse Degrees of Substitution as in this case the Husband cujus haeredibus maxime prospicitur It is thought should be Fiar Seing not only the Heirs of the Marriage gotten by him But in the next degree his Heirs of any other Marriage are substitute and in ultimis tabulis The Wifes Heirs and as Heirs of Provision to the Husband and the Husband having given a Jointure it is thought to be in Lieu of the Tocher and to belong to him as Fiar and not as simple Liferenter A Bond for a Sum of Money being granted to a Man and his Wife and longest Liver of them Two and to their Heirs and Assigneys secluding Executors And the Wife having survived the Husband and a Bairn being likewise on Life of their Marriage Quaeritur Whether the Relict will be Fiar If a Bond be granted to Two Brothers in the terms foresaid and one of them deceasing having left Children and the other surviving having also Children Quaeritur who is Fiar Fictio Juris QVaeritur A Debitor being disseas'd what way can the Compriser be Infeft Answer The Decreet of Reduction putteth the Debitor quoad the Creditor in the same case as if he had not been denuded Fictione Juris Fiscus IN Dubiis ubi non est plena Probatio fisco non favendum Besol Thesaur liter L. p. 556. vide Auctores ibi citatos Commissa Fisco MErces committuntur Fisco ex causa fraudati vectigalis ipso Jure ita ut statim desinant esse ejus qui deliquit itatamen ut ob contradictionem partis requiratur sententia declarativa De Jure fluminum 206. Flumina FLumina a Rivis distinguuntur magnitudine vel aestimatione circumcolentium Hering de molendin Quaest 15. n. 4. Flumina Publica FLumen publicum est illud quod perenne est Th. Scipman de Jure Fluminum seu jus Fluviaticum p. 3. n. 20. Flumina publica sunt in potestate patrimonio Principis de Regalibus sunt idem P. 5. n. 52. Publica sunt superiorem non recognoscentis Majestate fulgentis Ibid n. 7. quorum usus omnibus Expositus est Flumina publica sunt quae sunt perennia de Regalibus plerumque navigabilia quae navigabile aliud faciunt ad principem pertinent Vsu vero patent singulorum commodis utilitati non etiam commercio seu Juri emendi acquirendi alienandi Quaest eadem Num. 10. Flumina Censitorum vice funguntur ex privato in publicum addicunt ex publico in privatum dum uni adimunt alteri addunt Jus fluviat p. 5. 24. c. Forfaulture A Subvassal being Forfaulted Whether His Majesties Donator will have Right to the Estate free of Servitudes and Rights not consented to by the immediat Superior Caldwells Relict contra DalÈiel When the Lands fall in His Majesties Hands by Forefaulture or otherways by the suppressing of Benefices or any other occasion if there be Vassals holding of the same May he Dispone the saids Lands and Superiorities Ratio Dubitandi That a Superior cannot interpose Answer There is a difference betwixt Vassals holding Originally of His Majesty and these who hold ab initio of other Superiors As to the first they cannot be prejudged so as to be put to hold of any other than His Majesty and to be more remote from the Fountain The others are not prejudged seing they are put in the condition they were in formerly and as the former Superior might have Disponed the Superiority and resigned so His Majesty cannot be denyed the same Power and His Majesties Disposition is Fictione Juris equivalent to a Resignation seing there is no other Superior in whose hands the King can resign If a Subvassal to a Vassal holding of the King be Forefaulted for Treason will subaltern Rights granted by him fall under Forefaulture Seing it is pretended that such Forefaultures belong to the King not as Superior but Jure Coronae and as Prince noxa caput sequitur and the King has no prejudice having a Vassal Yet I think that these Rights should fall Quia resoluto Jure Dantis resolvitur Jus accipientis And if the Subvassal should Forefault his Lands by Recognition his Vassals Right would Forefault And it is against reason That Treason being Crimen gravius The Forefaulture and poena should be Levior And Treason is Crimen feudale and against the King as Superior paramount and as the betraying of a mediate Superior will import Forefaulture not only of the Subvassal but of his Vassals there is the same or greater reason that Treason against the King should have the same effect and the reason that the Forefaulture of the Subvassal should belong to the King is because the Crime is committed against him as highest Superior If the Kings immediat Vassal should confirm the Inferior Rights if there be any alteration of the case Seing the King is in place of the Vassal because the Crime is committed against the King as Superior and he should be in no better case and the Vassal if he were to have the benefite of the Forefaulture could not Question the said Rights If a person Infeft in Liferent be Forefaulted for Treason will the Liferent expire though he survive Seing he is nullus and after Treason doth neither transmitt cedendo nor delinquendo A Person being Infeft in Trust and to the use and behoof of another Quaeritur If he commit Treason will he Forefault the Right of the Lands to His Majesty Seing albeit his Right be to the use and behoof of another yet he is Vassal and as the French say he is homme vivant confisquant and there is no reason the Superior should be defrauded and the granter of the Right is to be blamed that he trusted such a person By the English Law though a person Dispone for Onerous Causes he is not Lyable to warrand unless he be expresly bound otherways the acquirer is presumed to take his hazard But with us no Warrandice is absolute Warrandice Quaeritur If a
pactum non intervenerit praevia tamen denunciatione ut debita solvat licet pignus alienare cessante debitore in solutionem per biennium post denunciationem Perez Lib. 2. Tit. 8. Plenishing If a Wife be provided to a part of it BY Contract of Marriage a Wife is provided in satisfaction of Terce Third or other part of Movables except the half of the Plenishing of the House the time of the Husbands Decease Whereto it is provided she shall have Right Quaeritur If there be no Free Gear will the Heir be obliged to free the half of the Plenishing Ratio Dubitandi The Contract bears she should have Right and she is in the same case as if her Husband had disponed for an Onerous Cause the Plenishing he should have the time of his Decease And on the other part it seems this Provision should be understood Conditionaliter if there be free Goods And the Clause being an Exception from a Renunciation both the Renunciation and Exception from it ought to be of the Regula and of that which would belong to her if she were not excluded which could only be the free Gear If the clauses do not bear besides the Heirship Quaeritur If she will have Right to the plenishing without Deduction of the Heirship Eadem Ratio Dubitandi Possessor PRocessum ligitiosae possessionis Hispani Interim Galli Recredentiam Belgi Provisionale remedium alii processum informativum appellare solent Budaeus litem vindiciariam Thes Bes in Litera I. 29. verbo interim mittel Possessor bonae fidei fructus consumptos suos facit absolute extantes vero Dominocedunt Possessor vero malae fidei nec consumptos nec extantes suos facit sed Dominus extantes vindicat consumptos vero condicit condictione sine causa Perez lib. 2 Tit. 5. Poinding of the Ground A Lord of Erection having Disponed Teinds and the Reddendo bearing a Sum to be payed for a proportional relief of the blensh duty payable by the Lord of Erection and certain Bolls of Victual to be payed also for his relief to the Minister Quaeritur Will the Minister have action for poinding the ground 2do What will the Superiors poinding the Ground import A Decreet of Poinding the Ground being got against the Heretor for the time and the Tennants Quaeritur If after the Death of the Heretor the Lands may be comprysed for the Bygones from the Appearand Heir without a Decreet of transferring or a new Decreet Answer It is thought there is no need of any other Decreet the Decreet being Really founded which may be recovered against an Appearand Heir and put in Execution by Comprysing or poinding against him Prerogative IF the Question betwixt Roxburgh and Lothian should be determined with respect to his Majesties Prerogative being the Fountain of Honour It is thought that His Majesties Concessions whatever the Subject be should be judged Jure communi And that Jus quaesitum whether as to Honour and precedency or any thing else cannot be taken away upon any such pretence The Prerogative is instar littoris which is defined quo fluctus Hybernus exaestuat So that as the Sea does not go beyond the Shoar when the Sea is most full so the Prerogative and Plenitudo Potestatis does never go beyond Law which is a great Littus and Boundary of just Power The Royal Prerogative is acknowledged and asserted by diverse Laws and Acts of Parliament of this Kingdom But how far the Extent of the same may reach is a point of State and Policy of the highest nature and importance and not to be defined by the Opinions of Lawyers but by the Highest and Legislative Authority The Royal Prerogative is not only asserted in the general by the Laws of the Kingdom but diverse and great Powers Rights and Priviledges belonging thereto are in special declared by diverse Acts of Parliament both in Relation to the Government and in Relation to His Majesties Interest and Questions and Causes betwixt Him and His Subjects As the Power of Calling and Dissolving Parliaments The Choising and Appointing Officers of State and Commissioners and Judges To make War and Peace And that there can be no Meetings to Treat or determine in Matters of State without His Majesties Authority and Warrand And that upon no pretence there can be any Rising in Arms without His Warrand And His Right to Custums And Power to grant Remissions for the Highest Crimes And that the Negligence of His Officers cannot prejudge Him And albeit by the Common Law the Eldest Superior is preferable yet when Lands are holden of diverse Superiors Ward the Marriage of the Vassal which otherwayes would belong to the Eldest Superior doth pertain to the King tho as to the Vassal his latest Superior And by custom albeit the going to a Miln for never so long a time being facultatis doth not import Servitude without a special Astriction yet the repairing to His Majesties Milns by the space of Fourty Years doth induce a Servitude without any other constitution As to which and other points of the Prerogative explained by Law and Custom Lawyers may and ought to give their Opinions in Law But as to Lawyers and Juris-consults it is said Turpe est sine lege loqui ubi leges silent they cannot but be silent And the Laws of Scotland which ought to warrand the Resolutions and the Opinions of Lawyers in Questions concerning the State and Government are only the Statutory Law and Acts of Parliament and the common Law and custom and undenyable practique of the Kingdom As to the Civil Law of the Romans it was only the Municipal Law of that People And by reason of the great Equity of it in Questions de Jure privato tho it has not the force of Law with us yet it is of great Authority and use in cases not determined either by statute or custom But as to Questions of State and Government the Civil Law is of no use with us in respect the Laws of all Nations concerning their State and Government are only Municipal and the Constitution of the Respective States doth varie both from that of the Romans and for the most part each from another So that any Questions concerning the same cannot be solidely or warrantably Answered upon Principles or Reasons brought from any Law but the constitution of the Government and Laws and Customs of the Nation and Kingdom concerned It is conceaved That when the Opinion of Lawyers is asked Res should be integra and they should be at liberty to give their Opinion freely and without prejudice which they cannot doe after His Majesty has any way predetermined them by declaring his own Royal Will and Pleasure As to that Question What can be said in Law in defence of these who have acted contrary to Law in Obedience to His Majesty or upon his Royal Dispensation if they should be questioned in the time of Succeeding Kings It is Answered That upon the Grounds foresaid
indirect way is taken away vide Transumpts Quaest 1. hujus Literae Terce A Person having disponed Lands bona fide but being prevented by death before the Buyer was Infeft Quaeritur Whether the Relict will have right to a Terce Ratio Dubitandi The Relict has a Terce of all Lands wherein her Husband died infeft and is not lyable to personal Creditors On the other Part it seemeth against Reason That the Husband having bona fide disponed and the Heir being lyable for the Implement the Relict should be in better case than the Heir who has no part and that the Relict should have only Right to a Terce of Lands undisponed and that there is a difference betwixt a Disposition and other Personal Debts seing a Disposition is Jus ad Rem which cannot be said of other Obligements And these Words That she should have Terce of all wherein the Husband died infeft ought to be understood Civiliter Viz. undisponed Quaeritur If Lands be redeemable Will the Relict Tercer have any part of the Money whereupon the Lands are redeemed specially when the Husband died infeft upon a Compriseing Ratio Dubitandi The Law gives unto Relicts only a Terce of Lands and not of Sums of Money and there is a difference betwixt a Tercer and a Liferenter who is provided to a Liferent of Lands under Wadset A Person being obliged for a most onerous cause to dispone his Lands and deceasing before Infeftment or Resignation Quaeritur If his Relict will have a Terce notwithstanding of the Disposition Ratio Dubitandi That it is hard the Relict should be in better case than the Fiar and Heir from whom the Lands may be evicted by a pursuit for implement And though the Husband died Infeft his Right was resolubile and such as might have been evicted from him 2do A Reversion is but pactum de retrovendendo and in this case there is a full Vendition and yet an order may be used upon a Reversion which will either prevent the Terce or extinguish it Quaeritur If a Reversion though not Registrate will militate against the Relict to prevent her Terce or to Redeem Ratio Dubitandi She is not to be considered as a singular Successor but as having a Right by virtue of and as depending upon her Husbands Right yet standing in his Person whereas he is denuded in favours of a singular Successor It is Indubii Juris That the Husbands Debts that are only personal do not prejudge a Relict of her Terce But Quaeritur whether a Comprysing before her Husbands decease will militate against her And if as to this point there be a Difference betwixt a comprysing whereupon the Superior is charged and whereupon there is no charge Quaeritur If a Disposition whereupon there is Resignation will prejudge a Terce Lands being Wadset for a certain Sum Quaeritur If the Relict of the Creditor will have a Terce both of the Lands and in case of Redemption of the Sum of money If a Wadset be to a Husband only and after his Decease to his Wife And an order be used and declared Quaeritur If she will get a Terce of the money And in that case whether the Executors will not only have Right to the two parts but to the third part of the Sums consigned with the burden of the Relicts Liferent Cogitandum A Lady by her Contract of Marriage being provided to a Liferent and infeft base in satisfaction of her Terce and what else she may pretend Quaeritur If the Superior questioning her Right as base she may have recourse to a Terce as renounced in behalf of the Husband and not of the Superior and the Renunciation being causa data intuitu of her Liferent he cannot debar her from the same and take any advantage by the said Renunciation The Lady Ballencreiff Quid Juris as to a Tercer being Liferenter of a third part Answer The difference betwixt the Liferent and Terce is That the Liferenters Right is anterior and certain but the Terce is posterior and uncertain So that the Fiar may sell the Lands in which case there would be no Terce vide Liferenter qu vltima Territorium TErritorium est universitas agrorum Jurisdictione munita Jus Fluviat p 42. num 513. Testament IF a Testament may be Holograph If a Movable debt be due to an English Man who is deceast must it be confirmed in Scotland è Contra If a Nuncupative Testament in England will have Right to a Debt due in Scotland Ratio Dubitandi it is valid in England mobilia non habent situm sequuntur personam on the other part corpora mobilia nomina though they have not situm as Lands yet they have it so far as being res Scoticae they cannot be transmitted but according to the Law of Scotland Law being rerum Domina Quid Juris if it be offered to be proven by the oath of the nearest of kin that the Defunct did before him and other witnesses above exception Name the pursuer his Executor and universal Legatar will a nuncupative Testament so proven be sustained Answer It is thought it will not Seeing nuncupative Testaments are not in our Law admitted And it is de forma that they should be in Scriptis Quaeritur If a Testament may be sustained by way of Instrument Answer an Instrument under a Notars hand being but the assertion of a Notar is not considered as Scriptum which requires the Subscription of the party himself or in subsidium by Notars before Witnesses de ejus mandato Quaeritur If one Notar subscribing for the Testator be sufficient in Testaments Answer Affirmative in respect of the great favour of last wills and oftentimes there is not copia Notariorum Ministers by Act of Parliament cannot be Notars but in the case of Testaments Quaeritur If eo ipso that they are Ministers they may be Notars in Testaments Or if they must be admitted Notars Answer Cogitandum Quae Ratio That a Testament made in France or Holland according to the custom there which is different from ours should be sustained in Scotland as to any Scots interest falling under the same If a Minor having Curators may dispose of his Estate by Testament without the Curators consent A Minor of thirteen Years or there about having made a Testament and named the person with whom he was boarded and bred in Family his Executor and universal Legatar without the knowledge or consent of any of his Friends Quaeritur whether the said Testament may be questioned upon Circumvention without qualifying any other circumstance but that it is Dolus in re ipsa to elicite from a person of that Age a Right to all his Moveable Estate in defraud of his friends Answer It is Casus arbitrarius and much will depend upon circumstances if the Defunct had no Relation to the Executor and if the Executor did suggest that the Defunct should make a Testament and employed the Writer and did inform the
that pretence That the possession of the principal Lands is the possession of the Warrandice fictione Juris It was Answered That there is no such fictio warranted by any Law and so it is Fictio but not Juris 2do It is a Fictio contra Jus cui Jus resistit in respect the Heretor by the publick Infeftment of property being in possession no other person can be said to be in possession seing there cannot be two Domini in solidum nor two Possessores by distinct Rights having no subordination or dependance one upon another as Liferenter and Fiar Superior and Vassal Master and Tennent or such like 4. It is clear that the possession of the principal Lands cannot be thought the possession of the Warrandice Seing if after Fourty Years the principal Lands should be evicted and a pursuit for Warrandice and recourse should be in ented upon the Right of Warrandice though Prescription cannot be obtruded yet if there be any defect in the Infeftment of Warrandice as v. g. The Disposition is subscribed by one Notar or such like The same may be alledged Whereas if that Infeftment were cled with Fourty Years Possession the Right would be prescribed and could not be questioned upon any Ground whatsoever but Falsehood In this Process It was Questioned whether the Heretor who had the publick Infeftment having been in Possession above Seven Years should have the benefite of a possessory Judgement until a Declarator and a Decreet in petitorio Some of the Lords thought that in the case of Warrandice the Heretor should not have the benefite of a Possessory Judgement against the Pursuer upon an Infeftment of Warrandice quia non valebat agere But the question was not decided D. 16. Cranston contra Wilkison 14 July 1666. BEtwixt Cranston and Wilkison It was Found Newbyth Reporter That a Person being conveened as representing his Father who was alledged to be vitious Intrometter to the Pursuers Debitor the Title being passive and penal could not be a Ground of Action against the Defender to make him Lyable to the whole Debt But only in so far as should be proven the Defunct did Intromet and was Locupletior quia actio poenalis non transit inhaeredem And the Defunct if he had been pursued in his own Life might have purged the said Title D. 17. Burnet contra Johnston 17. July 1666. JOhnston of Frosterhil having Disponed his Lands with absolute Warrandice in favours of Gordon of Birsemoir Reserving his own and his Wifes Liferent and thereafter having Disponed the same Lands in favours of Mr. William Johnston who did obtain the first Infeftment And being charged at the instance of Alexander Burnet having Rght by Assignation to the Disposition in favours of Birsemoir The Letters were found orderly proceeded notwithstanding the Suspender alledged the Charger had no interest dureing the Suspenders Life Seing he never did nor could possess by reason of the Reservation foresaid And the Lords found a difference when Warrandice is craved upon a deed of the Party obliged and upon any other ground And that as to his deed he may be charged to purge it without necessity to alledge a Distress D. 18. Wedderburn contra Scrimzeour 18. July 1666. A Father having left a Legacy thinking his Wife was with Child in these terms That if his Wife should have a Male Child the Legatar should have the Sum of 4000 Merks And that if she should have a Daughter the Legatar should have the Sum of 5000 Merks The Lords Found That though she had no Child the Legacy should be effectual ex praesumpta voluntate Testatoris seing it cannot be thought but that he rather intended a Legacy for him if he had no Child Than in the case she should bring forth a Child Et in conditionibus primum locum obtinet voluntas Defuncti eaque regit conditiones L. 19. ff de conditionibus Newbyth Reporter D. 19. Steill contra Hay Eeod die A Tennent being Ejected Ejection was sustained at the Masters instance though the Tennent did not concur But it was not sustained quoad omnes effectus viz. As to violent profits Juramentum in litem but only that the Master should be in the same condition he was before the Ejection and should have the same manner of possession as if the Land were not void and to uplift the duties and to put in and remove Tennents And for the Bygone ordinary Duties in the same Process it was Found that the pursuer though he was not Infeft but only Appearand Heir to the Pursuer who was Infeft might pursue the said Action to recover his Possession having been in possession before D. 20. Hedderwick contra Wauch Eod. die THE Commissioners for the Borders upon the Verdict of the Inquest that the Pannel was guilty of Receipt of Theft having ordained the Pannel to pay 100 lib. Sterl within a short time and if he should faill to be sent to Barbadoes and loss his Escheat The Lords Found That by that Verdict there did arise to his Majesty the Casuality of his Escheat Whereof there being Jus quaesitum The King and his Donator could not be prejudged by a Doom which is contrary to Law And that in such cases of Capital Crimes the Law having determined the pain and especially the loss of the Escheat no Judge even the Justice General could moderate or lessen the samen D. 21. Bisset contra Broun 19 July 1666. IT was Found nemine contradicente That a Stranger residing in Holland animo morandi or elsewhere Though by the Law of the place his nearest of Kin without confirmation has Right to all Goods or Debts belonging to him Yet if the Debt or Goods be due by Scots-men or be in Scotland they cannot pursue for the same unless the Right thereof be setled upon them according to the Law of Scotland by confirmation if they be Moveables Or by a Service if they be Heretable Hay Clerk D. 22. Thomson contra McKitrick Eod. die FOund that a Comprysing may be deduced upon an Heretable Bond whereupon Infeftment had followed the same being payable without requisition albeit a Charge of Horning do not preceed seing there may be poinding upon such a Bond And there is Eadem Ratio as to Comprysings and the Denounciation is a sufficient Intimation that the Compryser intendeth to have his Money Hay Clerk In the same Cause The Lords having sustained a Seasin of burgage Lands whereto the Sheriff-clerk was Notar there being no Town Clerk for the time by reason in the time of the English Usurpation The Magistrates and Clerk refused the Tender The Lords Found That the said Seasin being within Burgh though not under the hand of the Clerk was not null upon that Ground that it was not Registrate Because though the reason of the Act of Parliament for Registration of Seasins and the exception of Seasins within Burgh be that Seasins within Burgh are in use to be Registrate by the Clerks in the Towns Books
Et non creditur Clerico nisi quatenus constat ex Actis And 2. That there neither was nor could be a Decreet in the said Process In respect the said Suspension was upon other reasons that were Relevant and compensation being in effect satisfaction and the last exception the said Reasons ought to have been first discust viz. That there were diverse Arrestments at the instance of Creditors which should have been purged and that Sir William had Assigned the Debt whereupon he had charged and the Assignation was intimate So that the Suspender could not be in tuto to pay unless the consent of the Assigney were obtained and that the said Sir William was at the Horn and his Escheat gifted and that the Donator did not concur nor consent 3. Tho' there could have been a Decreet and the Arrestments had been purged and the Assigney and Donator consented yet the samen not being Extracted the Suspender might pass from his Reason of compensation seing res was integra before Extracting and the Suspender may eike and verify any other reason that is emergent And there had arisen a most relevant Reason and Defence to him upon the said Act of Parliament anent publick Debts of which he ought to have and may plead the benefite in regard Acts of Litiscontestation and Decreets are Judicial Transactions and Contracts and as in other Contracts there is locus poenitentiae before they be perfited in Write so in Acts and Decreets before they be Extracted Parties are not concluded as verb. g. even after Litiscontestation before the same be Extracted a Defence may be proponed and in Declarators concerning Clauses irritant tho Parties will not be admitted to purge after Sentence yet before Extracting they will be heard And even by the Common Law albeit ubi res transit in rem Judicatam sententia non retractatur ex Instrumentis noviter repertis yet before Extracting of the same if Writes be Found which will elide the Pursuers Lybel they will be received It was Answered for the Creditors That in this case res was not integra because the Suspender had so far acquiesced that in effect he had payed the Debt Compensation being equivalent And if before extracting he had made actual payment there would have been no necessity of extracting the same and in this case not only there was solutio ipso Jure in respect of the said Compensation sustained but de facto the Lord Balmerinoch had payed 3 or 4000 merks in satisfaction of the Debt charged for the Compensation being so far short and the Creditors had intented exhibition of a Discharge granted by Sir William Dick to the said Lord Balmerinoch of the foresaid Sum of 4000 merks and a Declarator that in respect of the said Compensation the said Right granted by the said Sir John Smith was extinct The Lords at the desire of the saids Creditors having examined diverse persons anent the said Minut and the giving up of the said Assignation and anent the having of the said Discharge granted by Sir William Dick to Balmerinoch the Creditors at length did pass from their Compearance And now the Cause being again advised the Lords did adhere to their former Interloquitor in Anno 1664. And did Find That before extracting Balmerinoch might pass from his Reason of Compensation and decerned in the said Process at Balmerinoch's instance against the Tennents of Northberwick Reserving to the Creditors their Action of Exhibition and Declarator as accords D. 204. Kinloch contra Rate 15. Decemb. 1674. THE deceast Mr. Robert Kinloch Portioner of Luthrie having granted after he was married a Liferent Right to his Wife by Infeftment in some of his Lands in satisfaction of any further Provision did thereafter give her an additional Jointure and Infeftment in other Lands after which he did give a Right of Annualrent forth of the Additional Lands to his Daughter Janet Kinloch The Daughter and her Husband Mr. John Dickson did intent a Poinding of the Ground upon the said Right of Annualrent in which Process Jean Rate Relict of the said Mr. Robert compeared and defended upon her foresaid Rights being anterior to the said Infeftment of Annualrent It was Replyed for the Pursuer That as to the first Right for Provision of the Wife she did not make question but that being in Satisfaction of any other Provision as said is the additional Right granted thereafter was for Love and Favour and Donatio inter virum uxorem and revocked tacitely by the Pursuers Infeftment of Annualrent The Lords Found accordingly That the said posterior Right was revocked by the Right of Annualrent pro tanto without prejudice to the Relict of the Superplus if any be the Annualrent being satisfied Newbyth Reporter Gibson Clerk D. 205. George Drummond contra MenÈies of Rotwell 16. December 1674. IN the Process at the instance of George Drummond for payment of a Sum due by Alexander MenÈies of Rotwel as intrometter with the Debitors Goods It was Found as in diverse Cases before That the pretence that the Defunct was Rebel and his Escheat gifted doth not purge vitious Intromission unless it be alledged that the Defuncts Escheat was gifted and declared before intention of the cause or that the Defender did intromet either by vertue of a Gift to himself or by Warrand and Right from the Donator for the Defenders Intromission tho the Gift was not declared before the intention of the Cause In respect if there was a Gift declared before the intention of the Cause the Defender is in the same case as if there were an Executor confirmed before the intenting of the Cause and if he had either the Gift himself or a Right from the Donator before he did intromet his Possession ab initio being by vertue of a Title tho not perfected cannot be said to be vitious and quivis Titulus etiam coloratus purges the vitiousness of the intromission Strathurd Reporter Gibson Clerk D. 206. Kelhead contra Irving and Borthwick eod die JOhn Irving Merchant in Drumfries having furnished Mournings Winding-sheet and others necessary for the Funerals of the deceast Earl of Queensberry did take a Bond for the Sum of 1424 merks from the Countess Dowager Relict of the said Earl which tho it did bear only that Narrative that the Lady was addebted to the said John without relation to the Cause foresaid yet it appeared it was for that Cause In swa far as the said Countess being confirmed Executrix to her Husband had obtained an Exoneration and the foresaid Debt contracted for the Funerals was one of the Articles of the same The said Countess having deceased the Earl of Queensberry her Son was confirmed Executor to her and a Decreet being obtained against him at the instance of the said John Irving for the foresaid Debt he suspended upon multiple Poinding against the said John Irving and the Laird of Kelhead and James Borthwick and certain other Creditors The said Laird of Kelhead alleadged that he ought to
the same to be transported to Scotland and in the interim War having arisen the Ship and Goods were taken by the Dutch and that he had done for the Pursuer as for himself and as other Merchants had done for themselves Which Oath being advised It was debated amongst the Lords whether the Defender should be Assoilied in respect of the Oath and qualification foresaid And It was Found that albeit the Defender might be excused upon the account foresaid for not going to Bourdeaux and fulfilling his Commission in terminis yet as to the of the parcel of Cards with the product of the Salmond and the embarqueing of the same for the Pursuers use for which he had no order he was to be considered as negotiorum gestor and upon his own hazard and could not prejudge the Pursuer by disposing of his Money unless he were able to say that gessit utiliter both consilio eventu specially seing he might have secured his Money in Factors hands or transmitted the same by Bills of Exchange without employing or far less hazarding the same without order Mr. Thomas Hay Clerk D. 260. 8. June 1675. THE Lords yesterday did Order that in regard of the great abuse in desiring and granting Advocations so frequently from Inferiour Courts to the great prejudice of the People and the retarding and delaying Justice that therefore the Ordinary upon the Bills may refuse to pass Advocations if he find cause but that he ought to report all Advocations before they be past to the whole Lords D. 261. Kyle contra Gray eod die THIS Day the Lords Found That Advocations for Sums of Money within 200 Merks could not be past upon any reason of Iniquity Castlehill Reporter Some of the Lords in the case foresaid were of Opinion that Advocations should not pass tho the Process had been for a Sum above 200 Merks Because Litiscontestation had been made in the Cause and after Litiscontestation there can be no Iniquity but by a Decreet which ought to be Suspended without Advocation D. 262. Grant contra Grant 10. June 1675. IN the Improbation of a Bond the Bond being produced and the Defender refusing to abide by the same Certification was craved against the said Bond because the Defender did not abide by the same And the Lords were clear that the Certification should be granted for not abiding by the said Bond tho it was produced but because the Witnesses in the Bond had been examined and there being only two Witnesses to the same they both declared that they were impuberes the one of 8. and the other of 9. Years of Age the time of the subscribing of the Bond and the Subscription was not like the Subscription now used by them and to their remembrance they were not Witnesses to the same but were not positive that they were not Witnesses The Lords in respect of their Declarations and that the Defender himself did in effect at least presumptively acknowledge the falsehood of the Bond in sua far as he did not abide by the same Had an Impression that the Bond was false and therefore they granted Certification for not abideing by the same and did leave to the Pursuer either to take out the Certification or to insist in improving of the Bond or for declaring the same Null as wanting Witnesses as he should think fit Seing without question tho the Witnesses did not fully improve it yet in respect of their Age the time of their pretended subscribing the same and by their Declaration they did not astruct the Truth of the same In which respect the Bond ought to be constructed and looked upon as wanting Witnesses and so Null Mr. Thomas Hay Clerk D. 263. Scot contra Murray 11. June 1675. A Suspension being raised of a Decreet Arrestment was used at the instance of the Creditor after the raising of the same and upon that pretence It was craved by the Suspender That the same might be loosed and upon the Report of the Bill the Lords having debated Whether the said Arrestment could be loosed being upon a Decreet though suspended The Lords Found That tho a Suspension be raised of a Decreet yet it does not cease to be a Decreet until it be taken away by a Decreet in favours of the Suspender and that tho a Suspension sists execution yet the Creditor may arrest seing the Arrestment is no Execution but a Diligence and Remedy to preserve the Debitors Estate to the effect that after discussing of the Suspension the Creditor may have execution against the same And therefore They Found the Arrestment could not be loosed In this case the Suspender had consigned the Principal Sum but not the Annualrents otherwayes if he had consigned all the Lords would have loosed the Arrestment seing the Consignation of the Money is sufficient Surety to the Creditor Mr. Thomas Hay Clerk D. 264. Auchenleck contra E. Monteith 15. June 1675. WIdow Auchenleck pursued the Earl of Monteith for the price of certain Ware for his Ladies Cloaths extending conform to an Accompt to the Sum of 177. lib. It was Alledged for the Earl That the said Ware was furnished after he had served Inhibition against his Lady that she should not contract Debt to his prejudice Whereunto It was Answered That the said Furnishing was necessary for the Ladies Cloaths and albeit after Inhibition she could not contract Debt to her Husbands prejudice yet the Earl being obliged to furnish her Cloaths and other Necessaries he will be lyable for what is furnished to her necessarily The Lords upon the Report of the Debate foresaid having considered the Inhibition and that the execution of the same was not registrate were of the Opinion that the said Inhibition was Null But because it was not questioned by the Defender they Ordained that the Reporter should hear what Answer the Defenders Procurators could make as to the said Nullity It was thought hard by some of the Lords That a Merchant after Inhibition at the Husbands Instance furnishing bona fide to the Wife should be frustrate upon the pretence of an Inhibition unless either the said Inhibition had been intimate to the Merchant or it were notourly known that the Wife was Inhibited seing such Inhibitions are granted without any Ground either of Write as Bond or Contract or the dependance of a Process but only upon a Bill and Desire of the Husband sine causae cognitione And it were hard That Merchants when Persons and Ladies of any Quality come to their Shops for buying their Ware should go to the Registers and try whether they be inhibite but these Points were not decided D. 265. Katharine McMillan Lady Logy contra Meldrums 16. June 1675. A Disposition being granted by a Husband to his Wife of Moveables and she in an Improbation of the same being urged to abide thereat and offering to abide at the same as a Write truly delivered to her by her Husband The Lords Found That she ought to abide at the
reason why the Defunct should have appointed the said Election to be in manner foresaid for the first time and not thereafter And if the Colledge had not the Right foresaid it should not belong to the Town but the Defuncts Heir who doth concur with the pursute Newbyth Reporter Robert Hamilton Clerk D. 270. contra 18. June 1675. IN an Adjudication the Appearand Heir being called and his Advocates having compeared and desired to see the Process It was Alledged That he had no Interest having renounced and that his compearing was only to retard the Pursuers Diligence that other Creditors might come in This point of form being reported viz. Whether his Procurators should see And if they should see whether in communi forma or not or in the Clerks hands Some of the Lords were of the Opinion That being a Person necessar to be called and being called his Procurators should see in communi forma the Law making no distinction and tho he had Renounced yet he had Interest to see and object whether the Pursuers Debt was the true Debt or satisfied and if it appeared that it was satisfied he may notwithstanding his Renounciation enter if he thought fit And the Renounciation may be questioned as false The Lords nevertheless Found That he should see only in the Clerks hands within 24. Hours tho it was urged that if the Party were in Town that course might be taken but the Party being at the distance of 100 Miles or any other considerable distance so that in so short a time the Procurator could not get Information it were better that in such cases the Processes should be seen in communi forma For if Parties had prejudice they would apply again by Bills which would occasion greater trouble and delay Redford Reporter D. 271. E. Weems contra Bruce 22. June 1675. A Bond being granted by the Earl of Weems to _____ Bruce and his Wife Gaw and the longest liver of them two and to the said Bruce his Heirs and the said Gaw the Relict having intented a pursute for payment of the Sum due thereby It was Alledged it was prescrived there being more than 40. Years Elapsed since the granting It was Answered That the time of the Husbands Lifetime the Bond did not prescrive against the Pursuer being cled with a Husband and so non valens agere The Lords upon the Report made by my Lord Newbyth Did ex tempore Find That it did not prescrive during the Husbands time Tho some of them were of the opinion that the case was of importance as to the Consequence and was to be further thought upon and debated in respect it cannot be said but there was a Person valens agere ever since the date of the Bond the Husband dureing all this time being valens agere and after his decease the Wife and the Husbands silence being the Fiar and the Person who had Right for the time being joined with the Relict her silence and both being joyned by the space of 40. years all the reasons of Prescription concurred in the Case viz. That Debitors should be secured after so long a time and that there is praesumptio Juris the Bonds may be made up and nothing thereon done till all the witnesses were dead And that maxim contra non valentem agere c. is to be understood in the case where there is not a person having Right valens agere by the space of 40 years or in the Case of temporary and momentary Prescriptions but not in Prescriptions longissimi temporis Otherways Prescription being the great Salvo and Security of People might be eluded and a person acquiring a Right of Lands possest by his Author peaceably for the space of 40. Years without any Interruption should not be secure seing it may be pretended That the Husband having been silent fourty Years without any Interruption his Wife who pretends Right to the Lands by Liferent or otherways non valebat agere during the Marriage D. 272. Bruce contra Bruce 23. June 1675. DOctor Arnot having disponed to one of his Nevoys an Annualrent out of certain Lands belonging to him and thereafter having disponed to another of his Nevoys the elder Brother of the Annualrenter the foresaid Lands A poinding of the Ground was intented at the Instance of the Person who had Right to the Annualrent And It was Alledged That the Disposition of the Annualrent was never delivered by the Doctor but was beside him the time of his decease and was viis modis gotten out of his Charter Chest and given to the Pursuer To which It was Answered That the Pursuer had the Paper in his Hands and it was presumed to be delivered And 2do Tho it should be supposed that the said Right was amongst the Doctors Papers the time of his decease yet the Doctor having made the said Right publick by an Infeftment and Seasin thereupon to the Pursuer which was Registrat albeit he might have evacuate the said Right by destroying the Disposition yet nevertheless having keeped the same by him undestroyed it ought to be construed in Law that being Uncle to the Pursuer and having given the said Right upon the account of the said Relation he kept the same by him to the Pursuers behoove unless it could be made appear that the Doctor did any Deed to recal and evacuat the said Right The Lords repelled the Defence of not delivery in respect of the Answer Hatton Reporter Mr. Thomas Hay Clerk D. 273. Dowglass of Kelhead contra Carlyle and others eod die KElhead pursued a Declarator of Non-entry pretending that he was Superior of the Lands libelled In which Process It was Alledged That he was not Superior of the said Lands In respect the Right libelled that he had from my Lord Queensberry was to be holden of the Disponer and Queensberry being Superior to the Defenders could not interpose another betwixt him and them And upon the proponing of the said Alledgance the Pursuer was forced to reply upon a Right to the Casualities granted by a Paper apart by my Lord Queensberry to the Pursuer and thereupon Process was sustained and decreet given for the retoured dutie before the intention of the Declarator and the full Avail and Rent of the Land after the intention of the Cause Of which Suspension being raised upon these Reasons 1mo That after Decreet of Declarator was recovered the Superior and his Donator has Right to the Lands during the Non-entry and may remove Tennents or uplift the Duties from them but before Declarator there could not be a Sentence for Poinding the Ground for the full avail 2do Tho the Ground could be poinded for the full Avail yet the Pursuer has no Right but to the Feu-duties even after the intention of the Cause before the Pursuer did Found upon and produce the Assignation foresaid as his Right to the Casualities seing there being a question whether my Lord Queensberry or the Pursuer had Right to the
is provided that in case of Redemption the said 7000 lib. should be given to her and her foresaids which being a provision introduced in her favours and in effect in lieu of the Estate and being so great may fix upon her a Passive Title as having gotten by her Father beside her Tocher so great a Sum which is not payable to her Husband but to her and her foresaids and therefore could not Renounce but with the burden of the said provision for her Relief The Lords Found That she ought to Renounce Reserving to her the foresaid provision as Accords Castlehill Reporter Gibson Clerk D. 277. Tutor to the Laird of Aitons Daughter eod die THE Tutor to the Daughter of the deceast Laird of Ayton having craved by a Bill that he might be warranted by an Order of the Lords to set the Pupils Lands for less Duties than were payed formerly seing the former Duty could not be gotten The Lords Tho they had granted the like desire in favours of other persons upon Bills thought upon better consideration that it was fit to refuse the said Bill seing upon such pretences Minors may be wronged by their Tutors Authority and the Lords have only a Jurisdictio contentiosa in relation to Processes or questions depending betwixt Parties but not a voluntar Jurisdiction or power in relation to Administration of private Estates And if the Tutors Deed in setting pupils Lands were warrantable the Law would secure him And therefore left him to do as he will be answerable Redford Reporter D. 278. _____ contra _____ eod die UPon a Report made to the Lords concerning a Decreet of the Commissars which was questioned upon Iniquity because it being urged that Caution should be Found in an Improbation the Commissar did not Order the Party to find Caution It was Debated amongst the Lords Whether Caution should be Found or Money should be consigned alsewell in Actions as upon Exceptions in Improbations And some were of the Opinion that Caution or Consignation should be in all questions of Improbation Whether by way of Exception or Action conform to the Act of Parliament Q. Mary 7. Parl. Cap. 62. And some of the Lords were of the Opinion that the Law being clear to that purpose Consignation should be wherever such Questions fall out either by way of Action or Exception But the contrary was asserted by others and they pretended Custom but nothing was instanced to verify the custom and tho it were it ought not to derogate to so clear a Law upon so good Grounds The Lords did not decide this point at this time D. 279. _____ contra _____ eod die UPon a Report made to the Lords concerning an Advocation upon that reason that there was a Competition in the case upon double Rights It was debated among the Lords Whether the cause being undoubtedly competent before the Inferior Judge the pretence that there was a competition of double Rights should be a Relevant Ground of Advocation And some of the Lords were of Opinion that in the general to Advocate upon that Reason it were hard seing Inferior Judges their Jurisdiction as to Causes competent before them is founded upon their Rights so that they have alse good Right to the same as to any other property And in Removings and Actions for Maills and Duties and others such real Actions when a Defence is founded upon a Right or when Parties compear for their Interest and produce Rights it may alwayes be pretended that the question is anent double Rights so that the Jurisdiction of Inferior Judges may be altogether evacuated And the Lords who have scarce time to decide Causes that are proper before them should be cumbered with Processes that may and ought to be determined by an Inferior Judge contrar to the Acts of Parliament and in special the 39 Act of Q. Mary her 6th Parl. And the 8th Act of His Majesties 1st Parl. 3. Sess Discharging the Advocation of Causes whereunto Inferior Judges are expresly appointed Judges But if it should be represented and appear that there is intricacie in such Causes wherein there may be question of double Rights the Lords in that case may Advocate But upon the pretence of double Rights as to which it may be there is no difficulty there ought to be no Advocation Yet it was urged by _____ that the Lords were in use to pass Advocations upon the reason foresaid And albeit the pretence of custome not being verified and tho verified being against Law ought not to be put in the ballance with express Laws founded upon good Reason and Common Law yet the Bill was past Redford Reporter D. 280. Gilchrist contra Murray 26. June 1675. IN a Process for payment of a Sum due by the Defender the Lybel being referred to his Oath and he having declared with a quality viz. That as he was Debitor so he had made payment partly in Money and partly in Commodities and Ware The Lords Upon Advising of the Oath Found That the same not being special as to the quality of Payment viz. How much was payed in Money and how much in Goods nor being special as to the quantity of the several Goods did not admit the same but if it were made special as to Money payed by him it would be sustained pro tanto And as to the delivery of Goods in satisfaction of the Debt It resolved in an Exception and ought to be proven Hamilton Clerk D. 281. Livingston contra Garner eod die A Bond being granted for payment of a Sum and thereupon the Granter having suspended in his own time and a Decreet of Suspension being recovered in his favours after his death his Son being of the same Name was Charged Denounced and taken with Caption for the same Debt The Lords upon a Bill Did Find That the Son ought to be free of the said Debt and in regard of the Chargers trincating and fraudful Practice they modified 40. lib. to be payed by him the one half to the Partie the other half to the Poors Box. Gibson Clerk D. 282. Langlands Supplicant eod die A Bankrupt having obtained a Bonorum by a Bill desired the Lords to dispense with his wearing the Habit in respect of an Attestation of two Persons that he had become irresponsal upon the account of Cautionrie and other Occasions mentioned therein which the Lords did Albeit some of their Number were of another Opinion and did urge that by the Act of Parliament such Persons being infamous and the Lords by an Act of Sederunt having Ordained that they should wear the Habit as is the Custom in all other Nations that they may be known to be such Persons the Lords neither could nor ought to dispence with express Laws and Statutes and that no respect ought to be had to the Attestation being emitted by privat Persons having no Authority and not cited nor sworn to that purpose and the pretence contained in the Attestation was most irrelevant Gibson Clerk D. 283. Birnie
and that the Pursuers Debitor was a person opulent for the time according to his quality and had sufficiency of Estate and Moveables otherwayes that might have satisfied the Pursuers Debt the time of the said last Contract and thereafter So that the said Contract being valide ab initio it could not be taken away upon pretence that thereafter the Husband became insolvent seing it cannot be said that the Husband did intend to defraud his Creditor or that there were any fraud upon his part It was Replyed That tho the case of Bankrupts and their fraudful practices mentioned in the said Act being so frequent did give occasion and Rise to the same yet it appears evidently by the said Act that it was intended that Debitors should not be in a capacity to give away any part of their Estate in prejudice of their Creditors to any person In sua far as the dispositive words of the Act are in these terms that in all Causes at the instance of a true Creditor the Lords will decern all Alienations and Rights made by the Debitor to any conjunct person without true just and necessary Causes and without a just price really payed the same being done after Contracting of lawfull Debts from true Creditors to be null without further Declarator And the said Act does not bear that all Rights made by Bankrupts should be Null it being hard to give a Character and definition of a Bankrupt So that diverse questions may arise anent the notion of Bankrupt and what Debitors should be esteemed Bankrupt and therefore for cutting off the same the Act is conceived in the Terms foresaid and annulls Dispositions made by Debitors without an Onerous Cause And the Lords by the Statute ratified by the said Act do declare that they intend to follow and practise the Laws Civil and Canon made against fraudful Alienations in prejudice of Creditors And by the Civil Law all Rights and Deeds made and done in prejudice of Creditors without an Onerous Cause are null and may be rescinded actione Pauliana And the Law doth presume praesumptione Juris that they are fraudulent being prejudicial to Creditors ex eventu re who are not obliged to say that they are fraudful consilio which is in animo and hardly can be proven As that point viz. That the said Contract was upon valuable considerations It is Replyed That the taking of the Fie from the Husband and giving the same to the Wife it 's a Donation as to the Wife in prejudice of the Creditor So that there is no Onerous Cause as to the Husband The Lords Upon Debate at the Barr and amongst themselves did Find that Debitors might dispose of a part of their Estate by way of Gift and without an Onerous Cause if they retain alse much and more than would satisfy their Creditors And therefore they Found the Defence Relevant that the Debitor had alse much Estate besides the Fie of the said Tenement as would satisfy the Pursuers Debt Actor Falconer alteri Steuart Monro Clerk Praesentia Some of the Lords were of the Opinion That the case being of so great consequence as to the preparative it was fit to be thought upon and urged these Reasons 1. That the Words and Letter of the Law appear to be clear against Deeds done by Debitors without an Onerous Cause 2. Tho our Law were not clear yet in cases of that nature when we have not a Municipal Law nor custom to the contrary we ought to follow tho not the Authority yet the Equity of the Civil Law which is received every where where there is no custom to the contrary Specially seing it is declared by the said Statute mentioned in the Act of Parliament 1621 That the Lords are to follow the Civil and Canon Law made against Deeds and Alienations in prejudice of Creditors 3. It is hard to put Creditors to dispute the condition of their Debtors the time of making Donations and whether they had effects and sufficiency of Estate to satisfy their Debt notwithstanding the said Deeds which may be unknown to the Creditors It being sufficient to say that the Deed was without an Onerous Cause and that the Debitor became insovent 4. If a Debitor should become insolvent ex post facto tho the time of the Donation the residue of his Estate might have satisfied the Debt It is more just and reasonable that a Donator who has a Lucrative Title should rather suffer ex eventu than a Creditor _____ did argue to the contrair D. 288. Bonars Relict contra His Representatives 2. July 1675. A Bill of Advocation being Reported of a pursuite at the instance of John Bonars Relict against his Representatives before the Town of Edinburgh for payment of 10000 Merks conform to a Bond granted by him The Lords did Advocate not so much in respect of the importance of the Cause the Town being competent Judges but because there was an Improbation depending before the Lords upon the same pursuite of the said Bond And contingentia causa non debet dividi and doth Found the Lords Jurisdiction to Advocat to themselves all Questions concerning the said Debt D. 289. Earl of Dundonald contra Glenagies and the Earl of Marr. eod die A Tack of the Teinds of Kilmaranoch being set by the Abbot of Cambuskenneth to Sir James Erskine for his Lifetime and for the Life-time of his Heir Male and after the decease of the Heir Male for the Lifetime of his Heir Male and two 19 Years thereafter The Earl of Dundonald having Right by progress to the said Tack pursued a SpulÈie of the Teinds It was Alledged That the Tack is expired And if the Earl of Dundonald will condescend and prove that the said Sir James had an Heir Male surviving the Defenders will offer to prove that two 19 years had expired since the decease of the last Heir Male. The Lords Found That the Pursuer should condescend upon an Heir Male and prove that he survived the said Sir James And if he should condescend and prove that the Defender ought to prove as said is that the Tack was expired And did Assign to the Pursuer and Defender to prove Respective D. 290. Mr. Henry Morison 3. July 1675. UPon a Bill against Mr. Henry Morison It was desired that in respect he was an Advocate and Member of the House he should summarly deliver certain Goods entrusted to him by the Complainer And It was Alledged for him That the Complainer ought to intent an Action in communi forma And the Interest that he had in the House as an Advocate should give him Right to any priviledge that belonged to an Advocate but ought not to put him in a worse case than other Subjects who could not be forced to defend upon such Bills And the practice that the Advocates should Answer summarly to Complaints against them is only in relation to their Trust and Office if they refuse to exhibite or deliver Writes entrusted to them And
prejudged by any Deed of the Rebel in filling up of the same It was also Found That albeit the Lord Bamff by his Letter was bound up that he could not question the said Bonds upon the pretence foresaid of Condictio or any other that might have been competent against the said John Lyon Yet notwithstanding of the said Letter the King might have given and he might accept either a Gift of Lyons Escheat or a Right from the Donator and thereupon might claim Right to the said Sums Thesaurer Depute Reporter Mr. John Hay Clerk D. 406. Tennent Young and others contra Sandy Procurator-Fiscal of the Regality of Ogilface eod die IN a Declarator of a Liferent-Escheat It was Alledged That there could be no Escheat upon the Horning Lybelled Because it was upon Letters direct by the Secret Council upon a Decreet of a Regality Court And by the Acts of Parliament The Lords of Session are only warranted to direct Letters of Horning summarly upon the Decreets of Sheriffs and Baillies of Regality and other Inferior Judges The Lords Thought That the Council could not direct Letters of Horning upon the said Decreet Seing before the Acts of Parliament Letters of Horning could not be direct upon the Decreets of Inferiour Judges summarly without a Decreet Conforme before the Lords of Session And Statutes being Stricti Juris the Council could not direct Letters unless by the same Statute they had been warranted to that effect and it appears that the said Statute was founded upon good Reason and Considerations tho they be not exprest viz. That the Lords of Session are always sitting in the time of Session and in vacance there is some of their Number appointed to receive and pass Bills of Suspension if there be cause whereas the Council sitteth but once a Week ordinarly in Session-time and in Vacance but thrice 2. The Lords do not pass Suspensions but upon good Reasons and they are to consider the said Decreets which is not proper for the Council 3. As Suspensions are raised of the said Decreets so oft times there is a necessity of raising Reductions and the Lords of Council are not competent Judges to the Reduction of the said Decreets But the Lords thought not fit that there should be a question betwixt them and the Council concerning their Priviledge and therefore did forbear to give answer until some accommodation should be endeavoured And it was proposed by some that the Decreet of the Regality Court being for keeping of Conventicles and that practice concerning so much the Peace of the Countrey that all Disturbance thereby might be prevented and upon that account it being recommended to the Council by Act of Parliament that they should see the Laws against Conventicles put effectually in execution The Council as they might conveen the Contraveeners before themselves may commissionate the Inferiour Courts to proceed as their Delegats and upon their Decreets given by them as their Delegats that they may direct Letters of Horning Thesaurer-depute Reporter D. 407. Ker contra Hunter 20 December 1676. A Personal Action was sustained upon a Right of Annualrent against the Tennents during their Possession for the Mails and Duties effeirand to the said Annualrent Thesaurer-depute Reporter Mr. Thomas Hay Clerk D. 408. Carnegie of Balmachie contra Durham of Anachie eod die THE Lords Found That albeit by the common Law Annualrent be due for Tocher yet by Our Custom it is not payable unless it be so provided by the Bond or Contract for the same but in the case in question They Found the Defender lyable to pay Annualrent in respect the Debitor had been in use of payment at the least had promised to pay Annualrent for certain years bygone and Annualrent once payed implyes a tacite Paction to continue the payment of the same Thesaurer-depute Reporter _____ Clerk D. 409. Veitch contra Pallat. eod die THE Lords Found That a Rebel contracting Debt after Rebellion cannot assign in satisfaction of the same any debt due to him and tho the Assigney should transact with the Debitor of the Debt assigned before a Gift and Declarator the Donator will be preferable Lockheart and Hog for Veitch alteri Cuningham and Seaton Gibson Clerk In praesentia D. 410. Inter eosdem eod die AND in the same Case It was Found That a Bond granted after Horning tho it did bear that the same was for Wines yet being the Rebels assertion could not prejudge the King but it being alledged and offered to be proven that the said Wines were truely furnished before the Rebellion The Lords Found the Alledgance relevant to be proven only by the Rebels Compt Books and by Books of Entry and not simply by Witnesses without such Adminicles in Write D. 411. Pallat contra Veitch eod die THE Lords likeways Found That the Presumption introduced by the Act of Parliament that Gifts of Escheat are simulate in respect that the Rebel is suffered to possess is only in that case where the Rebel has a Visible and Considerable Estate of Lands or Tacks and is in possession of the same but when the Rebells Estate is either not considerable consisting only of an Aiker or two which was the case in question or in nominibus and not known to the Donator so that the Donator had reason not to trouble himself and to look after either that which was inconsiderable or which was not known to him there is no ground to presume that the Gift is simulate D. 412. Tait contra Walker 22. December 1676. THE Children of a second Marriage having pursued the Son of the first for Implement of their Mothers Contract of Marriage and the Provisions therein contained in their favours It was Alledged That they were Debitors themselves in swa far as they were Executors named and confirmed to their Father And It being Replyed That the Testament was given up by the Mother they being Infants for the time and she was not their Tutrix and so could not bind them The Lords Found That there was Difficulty in the case in respect the Pursuers were now past 40 years and they had never questioned or desired to be reponed against the said Confirmation And on the other part It was hard that a Deed of their Mother having no Authority to do the same as Tutor or Curator should bind them and there was no necessity to be reponed against the same it not being their Deed and being ipso Jure void and therefore before Answer the Lords thought sit to try if the Pursuers had meddled with any part of the Executry or had done any Deed that could import Homologation of the said Testament Newbyth Reporter D. 413. _____ contra _____ eod die IT was questioned amongst the Lords whether an Inhibition could be sustained albeit the Execution did not bear a Copy to have been affixt at the Mercat-cross And it was Resolved as to the future it should be declared that Executions of Inhibitions should be null unless Copies were affixt In
the Qualifications libelled were not relevant to import such a force and metus as could be the ground of a Reduction of the said Right ex eo capite tho they were convinced that the practice foresaid is most unwarrantable and dolosa and that thereupon the Right may be questioned as to Sir John himself but not as to a singular Successor and that there is a difference betwixt a Reduction ex capite metus which is competent against singular Successors and a Reduction ex capite doli which is not competent against a singular Successor who bona fide has acquired a Right for an Onerous Cause But diverse of the Lords were of Opinion that the Defence foresaid that there was no damnum was most relevant for these Reasons viz. All Restitutions upon what mediums soever whether metus or dolus or lubricum aetatis are against damnum and prejudice for frustra should Restitution be craved if there be no damnum 2. It is evident by diverse Laws and the Title foresaid quod metus c. That ex edicto quod metus causa c. non datur actio si nihil absit succurritur only captis laesis 3. By the Civil Law there were diverse Remedies competent to these who had been forced to do any deed viz. A Civil action ex Edicto Praetoris and a Criminal Action ex lege Julia and a Penal Remedy ex decreto Divi Marci That a Creditor by force extorting what is truely due amittit Jus Crediti And our Reductions ex capite metus are but Civil Actions as that ex Edicto And the said other Remedies being penal by the Municipal Law of the Romans cannot be introduced by the Lords of Session being Civil Judges without an Act of Parliament 4. All Restitutions should Repone both Parties in integrum and it were unjust that if it were constant and the Lords were convinced upon their own certain knowledge that there had been an antecedent Minute and that the same had been cancelled upon the granting of the said Disposition that Minto should be restored and not the said Sir John that now res non est integra seing the antecedent Minute is not Extant and tho it were Extant it would be ineffectual In respect Minto has Disponed the foresaid Lands to this Pursuer who is Infeft and having the first Infeftment would be preferable whether the Minute were Extant or not 5. As to the pretence that was so much urged that it would be of dangerous consequence that such Deeds extorted by force should be sustained upon the pretext of non damnum and that it would tend to encourage such practices the same is of no weight seing the Deed being just upon the matter may and ought to be sustained and yet the way of procureing the same may be severely punished 6. As to the difficulty of Probation there being no Adminicles in Write that there were such a Minute It is not considerable Seing multa permittuntur causative which cannot be done directly and that tho the Result of Probation by Witnesses may be the making up or taking away of Writes which cannot be done directly but by Write yet when that which is to be proven is in Fact it may be proven by Witnesses as in the same case that the Disposition in question was Extorted it may be proven by Witnesses to take away the said Disposition And if a person should be forced to grant a Disposition of Lands of 20. Chalders of Victual of Rent and in Exchange should get a Disposition at the same time of other Lands of the half value it were a good Defence and probable by Witnesses that the Pursuer did get the time of the granting the Disposition of Lands worth 20 Chalder Victual a Disposition of less value and Contingentia causae and of a Transaction and circumstances of the same ought not to be divided but may and ought to be entirely proven by Witnesses alse well for the Defender as the Pursuer Actor Lockheart and Sinclair alteri Cuningham and MckenÈie Mr. John Hay Clerk In praesentia D. 420. Commissar of St. Andrews contra Watson 11. January 1677. THE Lords sustained a pursute at the instance of the Master of the Ground against these who had bought from his Tennent his Corns and other Goods wherein the Pursuer had a Tacite Hypothâ—â—k Glendoich Reporter Mr. John Hay Clerk D. 421. Viscount of Oxenford contra Mr. John Cockburn eod die MR. John Cockburne having gone Abroad with the Viscount of Oxenford and after his Return having gotten several Bonds from the said Viscount of considerable Sums and also a Pension of 1000 Merks And having charged upon the same the Viscount Suspended upon that Reason that the said Mr. John dureing their being Abroad had received great Sums of Money remitted to him upon the Viscounts account for which he had not Compted and that after Compt and Reckoning he will be found Debitor to the Viscount in more than the Sums charged for And it being Alledged by the said Mr. John that he is only comptable for his Intromission and that his Actual Intromission ought to be Instructed by Write or by his Oath and the Declarations of Merchants and Factors Abroad cannot be Probation to bind upon him so great Intromissions The Lords considered the condition of the Viscount for the time that he could not Intromet himself and that the said Mr. John had such Influence upon him that having been his Governour at Schools and upon the desire of his Friends being put from him by an Act of Council He notwithstanding without and contrare to the Advice of his Friends carryed him Abroad and since his return had gotten from him the Bonds foresaid And therefore thought fit to try the Business to the bottom And to ordain the said Mr. John to give in his Compts of what was received and debursed when the Viscount was Abroad and the Factors and other Witnesses to be Examined concerning his Intromission and whether or not any Moneys that were remitted for the Viscounts use were received by the Viscount himself or by the said Mr. John Redford Reporter Mr. John Hay Clerk D. 422. Laird of Bavilay contra Barbara Dalmahoy eod die A Horning against a Person dwelling within the Shire of Edinburgh upon Lands Annexed to the Barony of Renfrew being denounced at Edinburgh was sustained In respect that the said Lands were Locally within the Shyre of Edinburgh And the Rebel In respect of his Residence there was Lyable to the Jurisdiction of the Sheriff and to all Burdens and had all Capacities competent to the Shire of Edinburgh Mr. John Hay Clerk D. 423. Baillie contra Somervel eod die THERE being a Provision in a Contract of Marriage in these Terms that 5000 Merks of the Tocher should return to the Father in Law in case his Daughter should decease before her Husband within the space of 6 Years after the Marriage there being no Children betwixt them then on life