of Pasturage or Commonty due to me out of Neighbouring Lands which the English call Common Appendant will the Servitude extinguish if I purchase the saids Lands seing res sua nemini servit Answer It is thought that it is Suspended but not extinct So that if the Purchaser sell the Lands affected with the Servitude it will revive unless it be provided otherwise And Servitudes of that nature are Real and pertinents Praediorum non Personarum Communio COmmunis Possessio quâ vel ad pasculandum vel ad alios fructus participandos vicini utuntur non caret Litigiis Divitibus proportionem Geometricam pauperibus Arithmeticam affectantibus Sed possessio Geometrica servari debet Praedialis ita ut qui majores habet possessiones magis utatur pascuis qui minores minus Jus Fluviat p. 561. n. 25. Compensation IF there may be Compensation on a Bond prescribed For that reason Viz. That quae sunt temporalia ad agendum they are perpetua ad excipiendum And the ground of Prescription as to Personal Actions being Negligentia petentis cannot be pretended in this case the Defender being satisfied in his own hands When in Processes for Sums of Money Compensation is proponed and the Pursuer Replyes upon Recompensation and the Defender again Duplyes upon Recompensation Quaeritur what course shall be taken by the Judge upon their several Recompensations Answer If it appear that the Pursuer or Charger is addebted in as much to the Defender as the Defender to him all the Compensations being considered the Defender ought to be assoiled and the Parties hinc inde should be decerned to give up and discharge the Grounds of the Compensation And if all the Compensations being sustained the Defender be found debitor to the Pursuer a Decreet should be given for what is due And if the Pursuer be found debitor to the Defender the Defender ought to be assoiled and the Pursuer decerned to pay what he is owing An Assigney to a Debt for an Onerous Cause having pursued for the same Quaeritur If it be alledged that the time of the Assignation the Cedent was the Defenders debitor and that he hath present Action for liquidating his Debt Whether ought Compensation to be sustained upon the said Ground and a time granted to liquidate It is thought That the Cedent not being Inhibite nor any Diligence done against him the Sum assigned was in Commercio and might be disposed of by him there being then no ground of Compensation which is de liquido in liquidum and otherwise non tollit obligationem vide Retention in Litera R. Composition for Entry IF the Superiority be disponed or comprised after Resignation Quaeritur Whether what is payable for receiving of the Vassal should belong to the former Superior Or to his Successor by whom he is to be received being pretium of his Entry Compriser IF after expiring of a Comprising the Compriser may pursue for the Evidents being incidents to the Right Comprising IF a Bond for an Onerous Cause being granted by a Person not Inhibited and publick Infeftment thereupon be preferable to a Compriser who had comprised before but was Infeft after the Bond If a Compriser of Ward-Lands die before the expiring of the Legal Will the Marriage of his Heir fall If it fall Will the Debitor if he redeem be lyable to refound the Avail Comprisings of Heretable Bonds though they be upon the matter Legal Assignations so that the first Compriser will be preferred to the second intimating in respect of the previous publick Solemnity in deduceing Comprisings Yet Intimation is necessar to put the Debitors in the Bonds comprised in mala fide If there be a necessity of a Declarator of expiring a Legal as there is of a Conventional Seing in many Cases there may be much Equity for purging the expiring as if the Sum be all paid but a very little part and the Lands exceed much the Debt If the Compriser come to be Debitor in a Sum equivalent Will the Compriseing expire The first Compriseing being reduced at the instance of a posterior Compriser ex capite Inhibitionis Will the first Compriser have Right to the Legal of the second Though the Debitor be Inhibited May he not assign the Legal If Compriseing whereupon Infeftment is not to follow and which formerly needed not to be allowed ought to be Recorded conform to the Act of Parliament 1661. Act. There being a Compriseing against a Principal and two Cautioners of their respective Lands and the Right of the said Compriseing being acquired by a Person who had bought one of the Cautioners Lands If that Person should dispone the Right of the other Lands with the Compriseing Sums and Grounds thereof as to the said other Lands only before the expireing of the Legal Quaeritur 1. If he hath not reserved expresly the Compriseing and Sums thereof as to his own Lands but has only disponed in the Terms foresaid Will the Compriseing extinguish as to his own Lands seing it could not subsist without the Grounds and these are disponed Answer It is thought It will not extinguish in respect the Compriseing is not simply disponed but only as to the other Lands and the same not being disponed as to his own Lands eo ipso it is retained together with the Grounds and it was Actum that the Disponer by acquiring the Compriseing should be thereby secured as to his own Lands And having disponed the same as to the said other Lands Law presumeth that he has retained it as to his own Lands in the first place and that it should be effectual as to the other Lands in the second place And Acta agentium are to be understood to operate according to their Intention Quaeritur 2do If the Compriser of that Legal should Redeem who should have right to the Sums whether the Disponer or these to whom he has disponed as to the other Lands at least to a part of the same Answer If the Disponers Interest as to the Security of his Lands amounts to or exceeds the Sums he will have Right thereto entirely seing he is to be secured in the first place If a Comâ—riser Infeft in Lands doth consent only to a Right made by the Debitor of a part of the Lands comprised will that Consent secure the Buyer against the singular Successors of the Compriser having Right from him by Compriseing or Disposition and Infeftment thereupon Seing they may pretend that a Consent doth not denude habili modo A Creditor comprised the Principal Debitors Lands and some time thereafter the Cautioners Estate and after the Compriseing against the Principal was expired But yet the Compriseing against the Cautioners was running he disposed of some of the Principals Lands Quaeritur If the Cautioner may plead that the Compriseing against him is extinct In swa far as the Creditor has an irredeemable Right to the Principal 's Estate Exceeding his Debt and is satisfied at least may be satisfied with
Marriage and disponed the same to the Son of the third Marriage Quaeritur If the Heir of the first Marriage may reduce that Right as given without an onerous Cause in his prejudice being a Creditor by that Clause of his Mothers Contract of Marriage Ratio Dubitandû It is pretended not to be free Conquest the Father having contracted Debt thereafter above the Sum of that Room Whereunto it was Answered That the said Room was Conquest the price being then paid and the Debt contracted thereafter A Merchant being obliged to provide the Conquest during the Marriage to himself and Wife and the Bairns of the Marriage Quaeritur 1. Whether Conquest being Vniversitas will fall under the Executory of the Bairns though the subject and what will fall under the Conquest be moveable 2do The Conquest being provided so that the Right should be taken to the Husband and Wife and Bairns of the Marriage whilk FailÈieing the half to the Husbands Heirs and the half to the Wifes Heirs Whether the Husband be Fiar and the Bairns only Heirs of provision though the subject be Moveable Though the Husband be Fiar if he can Dispone the Conquest without an Onerous Cause or provide the same to other Heirs in prejudice of Bairns being Creditors by such Provisions The Husband being obliged in these terms to provide the Conquest viz. Lands Heretages and Annualrents and other things And to take the Rights in manner foresaid Quaeritur If the General other things be comprehensive of Moveables there being no mention of Sums of Money or Moveables And it seems that Conquest is to be understood properly of Heretable Interests of which only and not of Moveables Rights are taken And other things may be understood of things Homogeneous and of the same nature that the things expressed in particular are of Viz. Heretable as Reversions Tacks c. If at least Bonds bearing Annualrent though Moveable will fall under the conquest Seing Rights are in use to be taken thereof And by the Law they belonged to Heirs before the statute This and the Four preceeding Questions are in the case of Andrew Bruce and his Conquest during the first Marriage The ordinary Clause of conquest in favours of Wives being of Lands Heretages Annualrents Quaeritur If Bonds being Heretable because Executors are Excluded will fall under the same Answer It is thought not Because the Subject is only Lands Heretages and Annualrents whereupon there is or may be Infeftment And Heretages comprehends only Lands Teinds and such Rights as are real by Infeftment or otherwise or whereupon Infeftment may follow Consensus USV receptum est ut in terrarum aut nominum jurium alienationibus Cessionibus praeter contrahentes alii interveniant pro interesse consensum accomodent subscribant contractibus instrumentis Sed quisnam Consensûs effectus esse debeat ambigitur quibusdam videtur consentientes contractus quibus consenserant haud reprobare nedum ut rescindantur agere posse juxta tritam juris regulam quod approbo non reprobo Alii opinantur cum nihil juris disponant ant tribuant consensum haud extendi ultra id quod actum aut cogitatum viz. Vt si quod jus eo tempore quo consensum adhibuerant suberat aut juris umbra ejus ratione aut praetextu Litem aut quaestionem intentare nequeant Salvâ tamen libertate commercii jura si quae sunt penes alios quam contrahentes potiora acquirendi aut in ea succedendi Iis ex intervallo post facto adeptis consensum haud obesse Cogitandum an ea sit commoda distinctio consentientes si in alia jura postea succedant iis uti posse quae enim consentientibus tunc temporis haud competebant sed postea nec opinantibus forte jus detulit ea antequam penes eos forent consensu ase abdicasse nec verisimile nec credere par est Qui autem juri in alium transferendo consensit si ejusdem rei jus melius penes alium esse compererit sponte operâ suâ acquirat ex eo adversus eos qui ipso consentiente jus alterum quaesierant agere haud audiendus Nec enim juri nec bonis moribus consentaneum est quod approbavit aliquid moliri aut quaerere quo illud posset reprobare aut rescindere Broomhall contra Lady Darsie Consensus Domini COnsensus assumit naturam actus super quo interponitur Sicut stipulatio quae est stricti juris interposita contractui bonae fidaei Bes Thes liter L. p. 552. Dominus consentiendo non praesumitur juri suo velle praejudicare sed solum obstaculum quod scilicet jus vasalli sine Domini Consensu alienari non poterat removisse Et remissio juris sui non praesumitur nisi verbis apertis de eâ constet Ibidem P. sequen Regula quod Domini consensus juri ipsius nihil officiat procedit tantum in illis juribus quae Domino consentienti competentia separatam habent rationem a negotio cui consensus accedit non autem in his quae ad robur firmitatem actus pertinent Idem p. 554. Consent QVaeritur If an Appearand Heir consent to a Disposition made in Lecto after the Decease of the Granter may another Heir quarrel the Deed upon pretence that the Consenter was not served Heir at any time Ratio Dubitandi The Consent of the Appearand Heir the time of the granting the Right doth so validate the Right that all Heirs are precluded from questioning it And there appears to be the same reason when the Consent is supervenient If the Consent will import Behaving A Person being Infeft in an Annualrent to be holden of the Disponer and in possession by payment of the Annualrent Consents to a Disposition of the Lands Quaeritur If that Consent will prejudge a singular Successor The Disposition being neither Registrate in the Register of Reversions nor the Seasin upon the Disposition relating to the Consent If the Consent of a Person having Right by Disposition whereupon Resignation has followed will prejudge a singular Successor In what cases Consent to a Right will prejudge singular Successors Answer It is thought that where there is no Infeftment and the Consenters Right may be transmitted by Assignation or Discharged such a Consent may prejudge singular Successors And will amount to an Assignation or Discharge If a Consent of a Party having only Right to a Reversion will prejudge a singular Successor unless it were Registrate Anent Consistories Whereby the Vsefulness and Necessity of these Courts is evinced and Doubts and Prejudices against them are Cleared THE Question whether a Judicatory be useful and necessary and therefore to be Instituted If it be not and continued if it be already erected or unuseful and therefore to be suppressed Cannot be defined well à priori but from the nature of the Subject and Causes which are agitate in the Judicatory And if the Subject be necessary and favourable
yet the said reason is not exprest in the Act of Parliament and the Act of Parliament excepting Burgal Seasins the Party was in bona fide to think that there was no necessit of Registration D. 23. Eleis contra Wiseheart Eod. die A Wife being obliged with her Husband to pay a Sum of Money and to Infeft a Creditor in her Land Though the Bond was not sustained as to the personal obligement to pay yet it was found valid as to the obligement to Infeft and the Procuratorie of Resignation contained in the Bond And the Wife notwithstanding having Disponed her Land she was found Lyable for the Sums as Damnage and Interest This Decision seemeth hard In respect albeit a Woman may Dispone her Land with consent of her Husband yet she cannot bind to pay a Sum of Money And in the case foresaid non agebatur that she should Dispone her Lands But that she should be Lyable to the Creditor and for surety he should be secured in her Land And the principal obligation being void the accessory of surety could not subsist D. 24. Eodem Die IT was debated but not decided whether the Tenor of a Comprysing may be proven there is an Act of Parliament Ja. 6. Parl. 6. That the Tenor of Letters of Horning should not be proven and there is Eadem if not more Ratio as to Comprysings the Solemnities being greater and more And if a Comprysing which is in effect the Execution of a Messenger may be made up by a probation of the Tenor a paritate rationis Poindings and Interruptions of Prescription by Citations and Executions and Intimations of Assignations may be made up by Witnesses and Arrestments and Decreets D. 25. Minister of Moram contra Bairfoot Eodem die THE Minister of Moram having pursued a Reduction of a Tack set by his predecessor upon that Ground that it was above three years without consent of the Earl of Buccleugh Patron for the time The Tack was sustained in respect Francis Stuart had consented in whose Favours Buccleugh by a Decreet Arbitral was obliged to denude himself of the Patronage This Decision seemeth to be hard seing Buccleugh was full Patron and was not denuded by the said Decreet And the Right of the Patronage might either have been Comprysed from him or Disponed by him effectually notwithstanding of the said Decreet which did not settle the Right of the Patronage in the said Francis his person but was only the Ground of a personal Action against Buccleugh for denuding him of the Right of the Patronage And as Francis could not present so he could not consent as Patron to Tacks Upon these considerations diverse of the Lords were of the contrair Opinion D. 26. McKenÈe contra Fairholme 24. July 1666. IN the case of MckenÈie against Mr. John Fairholme Sir George Mckenzie having by way of Reduction questioned a Bond granted by his Father and himself as Cautioner as null ipso facto Upon that Ground that he was Minor when he Signed the Bond And his Father being Administrator of the Law and in effect Curator to him had not Authorized him as Cautioner and could not be author in Rem suam the Pursuer becoming Cautioner in Rem and at the desire and in behalf of his Father The Lords did not this day decide the Question some being of Opinion That a Father though if his Children be Impuberes and Pupils be the Tutor and Administrator of Law ye he is not Curator to his Children being Puberes Seing a Son if he should desire other Curators to be given him his desire could not be refused Et habenti Curatorem Curator non datur Vide infra 26. July 1666. And 7. Decemb. 1666. D. 27. Petrie contra Richart eod die RIchart of Auchnacant having a Wadset of 12000. Merks from Buchan of Portlethem did thereafter enter in a second Contract with Buchans Son and Heir who had Right to the reversion and diverse years Back-tack-duties being accumulated and made a Principal Sum it was agreed that there should be no Redemption but by payment of the Sum contained in the said second Contract made up as said is of the Sum contained in the said second Contract and the Back-tack-duties and by payment of the Annualrents so accumulated Mr Petrie Provest of Aberdeen having acquired the Right of reversion and having used an Order of Redemption and thereupon having intented Declarator it was alledged that he should have consigned the Sum contained in the said second Contract which he could not misken by reason as he not only knew of the said second Contract before he acquired the said Right but acted in relation to the said Contract and in effect homologate the same In so far as 1. By the said second Contract he and certain other persons being named and appointed to determine the question betwixt Richart and Buchan what should be paid to Buchan for the charges he had been at in prosecuting his Right against Richart The said Petrie had accepted a submission relating to the said second Contract whereupon a Decreet arbitral did follow ordaining 300 merks to be paid to Buchan for his charges 2. By the second Contract Buchan was obliged to cause Petrie being his friend to give bond that he shovld engage for Buchan's performance of the said second Contract and accordingly Buchan being charged to fulfill that head of the said Contract had procured a Bond from the said Petrie and produced it in Judgment the time of the discussing of the suspension 3. Petrie had assigned the 300. Merks of charges modified by himself and the instrument of intimation of the Assignation mentioned the said Sum to have been modified by the Decreet arbitral proceeding upon the said Contract From these Acts it was urged that knowing and having homologate the said Contract in manner foresaid he was in pessima fide to take a Right in prejudice of the Defenders and to pretend to be in better case than his Author The Lords notwithstanding Found that the said second Contract not being Registrat in the Register of Reversions he was not obliged to take notice of it and might redeem by payment of the Sums contained in the first Contract It was acknowledged by some of these who were for the decision that these Acts imported an Homologation But the second Contract though by our Law valid was not favourable and was against the common Law in so far as the accumulating Annualrents to be a principal Sum is usura usurarum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I have often urged that favour is not nomen juris and Law ought to be uniform and not Lesbia Regula plyable and variable upon pretences of favourable or not favourable Sed nunquam credita Teucris Cassandra D. 28. Harper contra Hamilton 25. July 1666. IN the case Mr John Harper contra Hamilton his Vassal It was decided that after the intenting a general Declarator of Non-entry the Vassal should be lyable not only for the retoured dutie but
Seing the Husband was not in the Fee the time of the Forefaulture the same being taken away by a Reduction If the Woman should thereafter Marry and have Children the time of her decease but disabled Quaeritur If the Children of the Husband who would otherways succeed if the Father were not Forefaulted will Forefault the Right of the said Estate to the King and will be in the case of a person that is Forefaulted and has Right of Succession to the Estate as Appearand Heir Cogitandum Seing there may be Quaestion Quaeritur what course shall be taken to prevent it Answer It is thought that a Gift may be procured from the King making mention of the Forefaulture and Dishabilitation and notwithstanding that His Majesty is not willing that the persons who are to succeed FailÈieing the Wife of the Forefaulted person and the Heirs of her Body should be prejudged having been Faithful and Active in opposing the late Rebellion Therefore He doth ratify the said TailÈie in so far as concerns them and the Right of Succession Declaring that it shall not be prejudged by the Forefaulture and Inability And for their farther security in case after the Decease of the Wife the Children of the Forefaulted Person be surviving and that any Right to the said Estate shall belong and accrue to His Majesty by their Inability then and in that case now as then and then as now he is to dipone to the Heirs of TailÈie succeeding after the Wife and her Children the said Estate and any Right belonging to His Majesty as being or which shall then be in his hands by the Forefaulture and Inabilty foresaid Quaeritur If a Bond granted to a Man and his Wife and longest liver of them two in Conjunct-Fee and to one of their Sons expresly named and the Heirs of his Body which FailÈieing to the Heirs to be procreat betwixt the Husband and his Wife which FailÈieing to the Wife her Heirs and Assigneys be Heretable or Moveable Seing there is neither Infeftment thereupon nor obligement to Infeft Answer It is Heretable in respect of the TailÈie foresaid there being no TailÈie of Moveables or Moveable Sums And the provision in favours of Heirs Male with the Substitution foresaid is equivalent as if Executors were expresly excluded When a Person has settled his Estate upon a Friend by a Disposition to him and certain Heirs of TailÈie therein mentioned and thereafter for security of the TailÈie has taken a Bond from the person in whose favours the TailÈie was made that he should do no deed to disinherit the other Heirs of TailÈie and to keep the TailÈie inviolable Quaeritur If the said person shall without any Onerous Cause Dispone the Lands or grant Bonds for great Sums equivalent to the value of the Estate if the said Deeds may be questioned by the next Heir of TailÈie Ratio Dubitandi The doer of the said Deeds was Fiar and the Heir of TailÈie cannot come to the Estate but as Heir to him and is lyable to his Deeds Answer It is thought in the said case there is a Fideicommissum in favours of the Heirs of TailÈie and though the Estate might be Disponed for Onerous Causes the Disponer being Fiar yet he ought not to have violate the said Fideicommissum by fraudulent and gratuitous Deeds 2do Besides the said Fideicommissum there is a supervenient obligement whereby the Heir of TailÈie is Creditor and therefore may question any deed without an Onerous Cause in defraud of the said obligement and an Heir in whose favours there is obligements qua Heirs may Question any Deeds done by the person whom he represents contrare to the said obligement As V. G. when Deeds are done on Death-bed or contrare to a TailÈie bearing Resolutive clauses though for Onerous Causes and much more in such a case where a Bond is granted to the End foresaid which ought to be effectual and could operate nothing if the Heir could not question the same Earl of Calendar A Person having provided his Estate failÈiening Heirs of his own Body in favours of a Relation and the Heirs of his Body c. and having by the Write bearing the said TailÈie and a Procuratory of Resignation provided that he should be Lyable to satisfy all Bonds Obligements and Deeds done or to be done by him at any time during Life Quaeritur If these should be understood civiliter dureing his Liege poustie or of his natural Life Answer That it is thought that it should be understood during his natural life Seing the Entail being a free gift any provisiones thereincontained in favours of the granter ought to be construed favourably and the word Lifetime is properly to be understood of natural life If it be provided that the said person should marry a Gentlewoman named in the Writ Quaeritur if such a provision be lawful Seing it appears to be contrary to the Liberty that ought to be in Marriage Answer The Right being sub modo he ought to fulfil the same and there is no restraint as to his Liberty Seing if he think fitt he may choose to accept the Right with that quality or not If the said Entail being made in Leige poustie and resignation thereupon the Granter may thereafter upon Death-bed by a paper apart oblige his said Heir of TailÈie to marry as said is or to fulfil any other provision Answer It is thought that seing he is not so stated in the Right of Succession that the Granter cannot prejudge him who has still voluntas ambulatoria and may evacuat the said Right being Master of it and having it in his own hands and power as he may cancel it so he may qualify it as he thinks fit qui potest plus potest minus A person having by an Infeftment holden of the King under the Great Seal taken the Right of his Lands to himself which failÈiening to such a person as he should name by Writ and his Heirs which failÈiening to certain other Heirs did thereafter Dispone his Estate failÈiening Heirs of his own Body to the person thereinmentioned and the Heirs Male of his Body which failÈiening to certain other Heirs of TailÈie bearing a Procuratory of Resignation and reserving the Resigners Liferent whereupon Infeftment followed Quaeritur If thereafter the Disponer should have Children of his own Body what way should they be Infeft Cogitandum If it should be thought that the first Infeftment should stand in favours of the Disponers Heirs the said last Disposition with what has followed thereupon being conditional and the condition not having existed Quaeritur If the Heir of the Disponers Body should thereafter decease whether the said Right by Disposition shall revive at least that the person foresaid in whose favours the Disposition is made may be served Heir to the Disponers Heir of his Body by vertue of the said first Infeftment and the said Nomination and Disposition Sir Robert Hepburn If the King grant a Charter with the
Lands after his Majesties Restauration he was induced tho there was no Question as to the Debt to make a Reference and Submission to the Laird of Cochran and Sir John Fletcher upon no other account but that he apprehended that Newburgh might trouble him and cause him be fined which was the ordinary and Ignoble practice of Noblemen at that time against their Creditors These Arbiters did take from the said Sir William a discharge of the Debt and renunciation of his Right and from Newburgh a blank bond as to the Sum and the said Debt then amounting to 40000 merks they did give to the Earl of Newburgh the Renunciation and to Sir William Newburgh's simple bond filled up with 6500. Merks only Newburgh pretending that Sir Alexander Durhame then Lord Lyon was owing him Money did by way of letter give a precept to the Lord Lyon in these terms That he desired him to pay that Sum to the bearer upon sight and that he should retire his bond This letter being presented to the Lyon he in a scornful and jeering way subjoyned to the letter My Lord I am your Humble Servant the Earl of Newburgh not satisfied to have payed Sir William in manner foresaid as to 3400. Merks did intent a pursuit against Sir William That he might be free of the Residue and get back his Bond of 6500. Merks upon that pretence that the said Sir William had got from him a Bill of Exchange which had been accepted by the deceast Sir Alexander Durham at the least in case of not accepting he should have protested and intimated to Newburgh that it was not accepted nor satisfied that he might have recourse against the said Sir Alexander in his own time whereof he is now prejudged Upon a Debate in praesentia It was Found that the said letter was not a Bill of Exchange but a precept and that the receiving of such precepts upon Chamberlanes and others being for the Creditors further suretie do not oblige them to the formalities of presenting protesting and intimating which are in use in the matter of Exchange and Trade betwixt Merchant and Merchant Advocats Lockhart VVallace contra VVedderburn and Chalmers D. 38. Crawfurd contra the Town of Edinburgh last of July 1666. A Donator by a Gift of Vltimus Haeres having Pursued for a movable Debt due to the Defunct The pursuit was not Sustained because the Gift was not declared D. 39. Gray contra Gordon eod die A Bond being granted to Sir Robert Farquhar and bearing the term of payment to be diverse years after the date of the same and Annualrent to be payed in the interim termly and yearly Was found to be Heretable quoad Fiscum Though Sir Robert Farquhar had deceast before the term of payment of Annualrent And the assigney was preferred to a Donatar D. 40. Halyburton contra Halyburton eod die A Son having intented a Reduction of a disposition made by his Father for provision of the rest of the Children In lecto aegritudinis The Lords found the Defence relevant that the Pursuer had consented in so far as the Son had Subscribed as Witness and knew and heard the disposition so that he was not ignorant of the tenor of it And it was remembred by the Lords when they were voting that they had found the alledgance relevant That a Son and appearand Heir that Subscribed as Witness to his Fathers deed in lecto without that addition that he heard it read in the case of Stuart of Escog It being to be presumed that the appearand Heir being of age would not be Witness to such deeds unless he inquired and knew what they were D. 41. Cuming contra Johnston 7. Novemb. 1666. SOme Lands in Dumbar being disponed by one Adamson in favours of Johnstoun with a provision contained in the disposition and Infeftment that a Sum of Money should be payed by the receiver of the disposition to him or any he should name And in case it should not be payed the Right should be void And the saids Lands being thereafter apprysed It was found against the compryser that the said clause and provision was real And that the person named and having Right to the Sum and benefit of the said clause Though before declarator he could not pursue a removing yet he has good interest to pursue for the mails and duties for payment of the said Sum and being in possessorio to retain the mails and duties for payment of the said Sum pro tanto And that the said provision and such like are effectual against singular Successors It was urged by some That all that could be done upon that Clause was that a Reduction of the Right might be pursued thereupon But it was answered that it being actum that the Lands should be burdened with that Sum and if nothing more had been exprest but that it is provided that the said Sum should be payed the said provision being real would have furnished the said action and exception for payment of the said Sum out of the maills and duties And therefore the subjoyning the resolutive clause being ad majorem Cautelam could not be prejudicial nor retorted in prejudice of the disponer nor his Assigney This Question was hinted at but not decided in the said Debate viz. If the Declarator should be pursued upon the said clause for annulling the Right if it should operate in favours of the Assigney the Lands not being disponed to him in case of contraveening being to appertain to the disponer and his Heirs in case the Right should be rescinded It s thought that the provision being assigned the whole benefit and consequence of the same are disponed and consequently the assigney in the case foresaid of annulling the Right may pursue the Heirs of the Disponer and receiver of the Right and his Successor to denude themselves of the Right of the saids Lands Newbyth Reporter D. 42. Hay contra Magistrates of Elgin eod die IN the case Colin Hay against the Magistrats of Elgin Improbation being proponed against the Executions of Messenger bearing that he had intimated to the Magistrats that he had arrested a prisoner at the instance of the said Colin And the Magistrats and Witnesses compearing and urging to be examined It was alledged for Colin that they should not be examined Because the Messenger who was also cited was not present and that if he were present he might condescend upon circumstances and remember the Witnesses that they had been Witnesses it being otherewise incident to them to have forgotten though they had been truely Witnesses to the Execution It was answered for the Magistrats that they had cited both Witnesses and Messenger that they had done all that was incumbent to them and his not appearance ought neither to prejudge them nor the Witnesses And that having come in obedience to the citation they should not be troubled to come here again their Residence being at such a distance The Lords indulged so far to Colin as
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
Contract betwixt him and his deceast Father to Infeft Mistress Margaret Falconer his Sister in an Annualrent of the principal Sum of 1000 Merks out of the Lands of Halcartoun redeemable upon 1000 Merks And to pay the principal Sum upon Requisition Sir Patrick Falconer immediat Younger Brother and Heir of Line to the said Mrs. Margaret Assigned the said Sum and Contract in favours of Robert Robertson And the said Robert having intended Action against the now Lord Halcartoun as representing his Father It was Alledged That the said Sum being conquest in the person of the said Mistress Margaret it did not belong to the Heir of Line but to the immediat Elder Brother as Heir of Conquest The Lords having heard the Cause in praesentia and being resolved to decide the question betwixt the Heir of Line and Heir of Conquest as to Heretable Bonds bearing such Obligements to Infeft which had been often before in agitation but never decided but the time of the English Did Find that the said Bond and Sum did belong to the Heir of Conquest who would have succeeded in case the Right had been perfected by an Infeftment Some of the Lords were of the Opinion That Bonds of that Nature should belong to the Heirs of Line for these Reasons 1. That the Heir of Line is General Heir and Successor in universum Jus tam active quam passive and is lyable to the Onus Tutelae and other Burdens and penes quem onus penes eundem emolumentum unless the benefit of Succession be provided otherways either Provisione hominis in the Case of TailÈies or Legis and there is no Law settling upon the Heir of Conquest the Right of Succession as to Heretable Bonds whereupon no Infeftment has followed And the Law of the Majesty _____ is only in the Case of Terrae Tenementa Feuda as appears by the very Words of the said Ancient Laws and by Craig and Skeen de Verborum significatione in verbo Conquestus and verbo Breve de morte antecessoris 2. As Bonds cannot be called Heretage so they cannot be esteemed to be Conquest Heretage being properly Lands wherein a Person succeeds as Heir to his Predecessor and if the Heir of Conquest who is now found to have Right to such Bonds should decease tho the samen would descend and belong to the Heir of Line yet such Bonds cannot be called Heretage And Minors qui non tenentur placitare de haereditate paterna could not plead the same Priviledge in the case of Heretable Bonds 3. Lands and Feuda can only be said to be Heretage or to be Conquest when Parties have a real Right to the same by Infeftment but as to Bonds they do not settle Jus in re but at the most a Jus ad rem 4. Comprisings Dispositions and Reversions being more of the nature of Conquest especially Reversions which are real Rights and do militate not only against the Granters but singular Successors do descend and pertain to the Heir of Line and not to the Heir of Conquest D. 296. Veatch contra Pallat. 10. November 1675. THE Lords in the Case beforementioned February 9 and 12. 1675 Veatch against Pallat having resumed the Debate and it appearing upon Tryal that the Common Debitor Sanderson the time of the granting of the Assignation in anno 1662 in favours of Ker and Brown was not only Rebell but was in effect Fallitus and Lapsus They preferred Veatch to Pallat. D. 297. Gibson contra Rynold and Taylor 16. November 1675. A Disposition being made by a Woman cloathed with a Husband of her Liferent of a Tenement redeemable upon the payment of a certain Sum within a short Term therein mentioned allanerlie A Decreet of Declarator of the expireing of the Reversion was obtained and thereafter a Decreet of Removing at the instance of the Person Infeft upon the said Disposition against the said Woman and her Husband Whereof a Reduction and Suspension being raised upon that reason that the suspender was cloathed with a Husband the time of the expiring of the said Reversion and of the said Decreets so that non valebat agere nor use the Order of Redemption and the Husbands Negligence in suffering the Reversion to elapse and the said Decreets to be obtained ought not to prejudge her seing she was content yet to purge by payment of the Sum contained in the Reversion The Lords upon Debate amongst themselves had these Points in consideration viz. 1mo Whether or not a Redemption being limited and temporary as said is in the Case foresaid there may be yet place after the elapsing of the Term to purge And some of the Lords were of the Opinion that Reversions being stricti Juris there can be no Redemption neither in the case of Legal nor Conventional Reversions after elapsing of the Term nor place to purge But this Point was not decided 2. It was agitat whether a Woman cled with a Husband may be heard to purge upon pretence that non valebat agere as to which Point some of the Lords did demurr and it was not decided The Letters being found orderly proceeded upon an other Ground viz. In respect of the Decreet in foro contradictorio But it is thought that such Reversions should expire even against Women cloathed with Husbands seing it cannot be said that they are in the case of Minors and non valentes agere because they are cloathed with a Husband And by the contrary having the assistance and advice of their Husbands they are more able to go about their Affairs And if their Husbands refuse to concur they may apply to the Lords and desire to be authorized by them Strathurd Reporter Monro Clerk D. 298. Halyburton of Innerleith 17. November 1675. THE Lords upon a Bill presented by _____ Halyburton late of Innerleith Prisoner in Edinburgh for Debt did permit that until January next he should in the Day-time go out with a Keeper the magistrates being lyable if he should escape This was done upon pretence that he intended to settle with his Creditors which he could not do unless he were allowed the Liberty foresaid But some of the Lords were of the Opinion that the Emprisonment of a Debitor being the ultimate length of Execution and not only custodiae causa but in effect that taedio and foetore carceris Debitors may be driven to take a course with their Creditors That therefore the Lords had not power to give any Indulgence or Permission contrare to Law and in prejudice of Creditors without their consent D. 299. Mr. Vanse 18. November 1675. CAptain Martine being pursued before the Admiral for wrongs done by him in taking free Ships and Goods upon pretence that he was a Caper and that the same belonged to the Kings Enemies and having desired an Advocation the Lords thought fit that he should find Caution and because he refused and pretended he was not able did commit him and thereafter he having escaped out of the Tolbooth of
after Circumduction of the said Terms and that such Certifications are not only the great Surety of these who obtain the same but of these who obtain Right from them conceiving themselves to be secured with such Certifications Yet the President and others of the Lords enclined to repone Alexander against the Certification the Writes being produced tho it was urged that beside the Security and Interest of People as said is it was to be considered that in this Case there were Advantages pretended to on both hands viz. by Alexander of an expired Comprysing and by the Doctor of the said Certification and that Alexander and his Authors by vertue of their Comprysing had been many years in Possession tho there was probability the Comprysing was satisfyed and it seemed to be equitable that the Doctor should have a Decreet of Removing and should give a Reversion to Alexander limited to such a time as the Lords should find just upon payment of what should be resting and unsatisfied by his and his Authors Intromission if there there were any part of the Debt yet resting But this Point was not decided the Lords having recommended to some of their Number to endeavour an Accommodation betwixt the Parties D. 340. Abercrombie contra Acheson and Livington eod die A Taverner after she had removed from her Masters Service and was Marryed was pursued to Compt and Reckon for Ale and Wine which the Pursuer offered to prove was layed in in his Cellars The Lords Found That the Pursuer ought to Lybel and prove that the Debt was yet Resting Seing it was to be presumed that Servants of that quality did Compt Weekly with their Masters and the Pursuer would not have suffered the Defender to go out from his Service before she had Compted and made payment And it appeared that there had been former Decisions to that purpose Lord Justice Clerk Reporter D. 341. Dundass contra Turnbul and other Creditors to Whitehead of Park eod die IN a Competition betwixt an Infeftment of Annualrent and a posterior Infeftment upon a Comprysing the Lords enclined to find that the Infeftment of Annualrent was made publick by a pursute of poinding the Ground before the Infeftment upon the Comprysing But some of the Lords not being clear the case was not decided Gosford Reporter D. 342. Wauch contra Jamison eod die DOctor Bonar being to go out of the Country did Dispone a Right of Lands and of an Annualrent to Mr. John Smith his near Relation upon a Backbond granted by the said Mr. John bearing that the said Right was granted partly in Trust and partly for surety to the said Mr. John for Sums due for the time to him by Bonar and of such Sums as Smith should advance to Bonar or his Creditors And that the said Right should be Redeemable by Bonar or his Sister if she should survive him by payment of the foresaid Sums Thereafter the Doctor did grant a Bond of 5000 Merks to the said Mr. John Smith bearing no Relation as to the said surety And bearing as to the conception a simple Moveable Bond to the said Mr. John his Heirs and Executors And after the said Mr. John Smiths decease there being a Competition betwixt Doctor Jamison his Heir and the Executor as to the said Sum of 5000. Merks And the question being whether it should be thought to be Heretable in respect of the said surety or Moveable In respect of the conception of the said Bond. The Lords did consider the case as of great moment as to the consequence and Interest of the People and upon debate at the Barr in praesentia and among themselves they came to these Resolutions viz. That it was consistent that a Sum should be Moveable and yet that it should be secured by an Heretable Suretie as in the case of bygone Annualrents due upon Infeftments of Annualrent and of bygone Feu-duties or Taxations the same being unquestionably Moveable ex sua natura And yet there being a real surety for the same and a real Action for poinding the Ground even competent to Executors And likewayes in the case of Wadsets loosed by Requisition and bearing a provision that notwithstanding of Requisition the real Right should stand unprejudged until payment in which case the Sum would be Movable tho still secured by Infeftment 2. That as to these qualities of Moveable or Heretable in relation to the Interest of Succession and Question betwixt Heirs and Executors the design of the Creditor animus was to be considered principally And if Debts either by the conception were Heretable ab initio or an Heretable surety taken thereafter for Moveable Debts as a Wadset or Comprysing It was to be presumed that the Creditor intended to alter the quality of the Sums and that they should belong to his Heirs but if Creditors should take an Heretable surety without any intention to alter the quality of the Debt or that the same should ly as bonum stabile and fixt the Debt continues still Moveable As v. g. If a Creditor having done exact Diligence should take a Gift of Liferent Escheat or Recognition upon a Back-bond that he should be satisfied in the first place of his Debt Or if in a Suspension a Disposition of the Debitors Estate should be consigned because he cannot find Caution Or in the case of Bonorums a Disposition of an Heretable Estate should be made in favours of his Creditors Or if a Debitor should Dispone his Estate in favours of a confident person with the burden of his Debts In these and the like Cases Because the Creditor does not intend that his Money should ly as an Heretable Debt but upon the contrary has done and is about to doe all possible Diligence for recovery of the same the Debt continues still Movable notwithstanding of the said accessory and extrinsick surety 3. Bonds being taken after a general Surety in the Terms foresaid for Debts to be advanced may be Moveable notwithstanding of such Surety if it appear that the Creditor intended it should be such As if such supervenient Bonds should be taken to Executors Excluding Heirs Especially when such general Sureties for Sums as are to be afteradvanced are not dispositive but by way of Provision containing Back-bonds and not of the Right it self viz. That the Receiver of the Right should not be lyable to denude until he get payment of the Sums that should be due to him at any time thereafter In which case it appears that he has not a positive Right and Surety for the said Sum but an Interest and exception of Retention The Lords in end In the foresaid Cause Found that the said Bond of 5000 M. In sua far as it should be made appear to be made up of the Sum mentioned in the Back-bond that was due to Smith at that time should belong to the Heir an as Heretable Sum In respect ab initio the said Surety was granted for the same But as to the residue of the
Yet it may be taken away by a Reduction Ex capite Metus Doli and minoris aetatis and Lesion And that in such pursutes the Reasons being in Fact and Lybelled either upon Force or Circumvention and Fraud are probable by witnesses and that the Reduction at Fordels instance upon that Reason viz. That the Disposition in question was found among the Defuncts papers the time of his Decease and was intrometted with and filled up by Caribber is ex eodem capite Doli Mr. John Hay Clerk D. 433. _____ contra _____ eod die AN Edict of Executrie being Advocate from the Commissars a Bill was given in desiring that the Advocation might be summarily discust seing both nearest of Kin Creditors and the Fisk were concerned that the Testament should be confirmed and execute which Desire the Lords thought could not be granted in respect of the Act of Regulation but it was thought a great Escape and Inadvertency that such Advocations should be past seing the Lords could not confirm Testaments and if any Partie should be prejudged by any Act of the Commissars it may be reduced upon the head of Iniquity And the Lords thought it was fit that a new Edict should be raised and if an Advocation should be sought the Reason should be discust upon the Bill D. 434. Earl Argyle contra Mcnaughtoun 23. Jan. 1677. IN the Case abovementioned Earl of Argyle contra Mcnaughtoun It was Found That Mcnaughtoun having acquainted the deceast Marquess of Argyle that he was to Marry with his Lady and that the Marquess having returned an Answer by his Letter of the Tenor abovementioned the said Letter imported his Consent to the Marriage and that the Marquess having consented he could not claim the Benefite of the Marriage Vide supra 3. January 1677. D. 435. Tailfer contra Sandilands eod die A Curator having in his Accompts given in an Article of Incident Charges upon occasion of the Minors Affairs viz. That he had met with Agents and others in Taverns in Relation to the Pupills Affairs and had been at Charges in drinking with them extending to a considerable Sum during the whole time of his Charge The Lords did not allow the same in the Terms foresaid But Ordained him to condescend upon the particulars And if he kept a Book and Diary of his Debursements so that he might warrantably declare that he had truely debursed the particulars thereinmentioned they enclined to modify the same to such a Sum as they should find reasonable D. 436. Home of Ford contra Steuart 24. January 1677. A Wadset being granted in these Terms That the Wadsetter should possess the Lands and that the Granter should free the Wadsetter of Levies of Horse and Feu-duties and Ministers Stipends It was Found that the Wadsetter is not Lyable to Compt and Reckon for the Duties and superplus of the same exceeding the Annualrent In respect the Wadset was a proper Wadset and the Wadsetter was not free of all Hazards of the Fruits Tennents War and Vastation Redford Reporter Mr. Thomas Hay Clerk D. 437. Ronald Grahame contra Sarah Rome eod die JOhn Rome being obliged by his Contract of Marriage with his second Wife to provide 10000 Merks in favours of himself and his Spouse in Conjunct-fee and the Heirs of the Marriage whilks FailÈieing to his own Heirs and Assigneys And to provide also 5000 Merks in favours of the Remanent Bairns of the said Marriage The Lords Found That the Father was Fiar of the said Sums and that the Heir of the Marriage and Remanent Bairns had an Interest only to succeed to him as Heirs of Provision in the same And that the Creditors might affect the said Sums and would be preferable to the Bairns Notwithstanding their Debts were Contracted after the said Contract of Marriage and Inhibition thereupon seing the Inhibition could not take away his Fee And the Import and Effect both of the said Obligements and Inhibition is only that the Father should do no fraudulent Deed without an Onerous Cause in prejudice of the same Gosford Reporter D. 438. Ardblair contra Wilson eod die A Bond being granted by James Bisset of Neitherbalcarne to the Laird of Ardblair for Love and Favour to be payed after his decease The Lords Found That the said Bond being granted without an Onerous Cause to be payed in manner foresaid after the Granters decease could not prejudge posterior Creditors who were in bona fide to lend their Money notwithstanding any such Latent Deeds and Bonds This Decision seems to be hard Seing it was lawful both to the Granter and Receiver of the said Bond to grant and receive the same And the said Donation being lawful ab initio could not become thereafter unlawful by any Deed of the Granter And Fraud cannot be pretended but where Creditors or others the time of the granting of such Bonds were prejudged unless it did appear by some speciality and circumstance in the case that there had been a design to Cheat and Circumveen these who were to lend their Money by granting and settleing upon the Relations of the Debitor his Estate and thereafter to get in his Hands his Creditors Means whom he was not able to satisfy which was Found in the Case of Maisson and Pollock and was not Alledged in this Case Nevoy Reporter Mr. John Hay Clerk D. 439. Sinclair contra Home of Renton eod die A Bond of Corroboration being granted for a Sum due upon a Wadset with power to use Execution without Requisition The Lords Found That the Creditor may summarly compryse upon the same without previous Requisition Glendoich Reporter Mr. John Hay Clerk D. 440. Nairn contra Stuart of Innernytie eod die A Presentation being granted by a Bishop to a Prebendary in favours of a person dureing his Lifetime and after his decease to his Son The Lords Found in a multiple poinding and competition betwixt the persons substitute in the said Presentation and another Prebendar provided by the succeeding Bishop by the decease of the first Prebendar That the Substitution contained in the Presentation foresaid did expire by the decease of the Father and that the Substitution was void In respect the Bishop could not in prejudice of his Successor grant a Presentation in the Terms foresaid bearing a TailÈie and Substitution Castlehill Reporter Mr. John Hay Clerk D. 441. Drumellier contra E. Tweeddale eod die IT being objected against Major Bunting being led as a Witness for Drumellier against the Earl of Tweeddale That he had given Partial Counsel at least had concerned himself as a Party for Drumellier In swa far as he had been at Consultations with him in Relation to the Process The Lords Found That he could not be a Witness tho he was a person of Integrity above exception and that he was free to declare that at the said Consultations the point whereupon he was to be used as a Witness was not in consideration Gibson Clerk D. 442. Grange Dick contra Oliphant eod die
same The Lords Found That he should not be urged to declare upon that Interrogator In respect it was not desired he should be interrogate upon the same when he did declare and having denyed that he was any ways Debitor he would be involved in Perjury if upon a special Interrogator he should acknowledge that he was Debtor upon the account therein mentioned Mr. Thomas Hay Clerk Stewart and Swinton Advocats D. 454. Patrick contra Anderson eod die AN Executor having alledged that the Testament was Exhausted and for probation having produced the Defuncts Bond with a Discharge from the Creditor after the Defuncts decease and it being Found That the same did not prove unless there had been a Sentence produced It was thereafter Alledged for the Executor that seing he instructed the Debt and that he had payed the same bona fide the same ought to be allowed for his liberation at least that the said Debt should come in pari passu with the Pursuers unless they could object against the same as not a true Debt which was Repelled in respect no Legal Diligence had been done for the said Debt Some of the Lords were of Opinion that it should have been allowed to come in pari passu In respect the Diligence used by the Pursuer in intenting a Pursute against the Executor was only Personal and did not affect the Goods and the Executry being short and the Goods being to be forthcoming to all Parties having Interest any Creditor may compear for his interest and crave to have a proportion of the same at any time before Sentence Otherways a great Creditor in alse much as may be equivalent to the Executrie if he should pursue the Executor before the other Creditors they may be all frustrate Mr. Thomas Hay Clerk D. 455. Blackwood contra Pinkill 9. June 1677. A Father having infeft his Grand-child in Fee of his Estate and his Son Father to the Fiar in Liferent with a Provision that the Liferent should be alimentary to him The Lords Upon a Debate among themselves concerning the said Qualification of the Liferent were of the Opinion that the Son being provided before to some other Lands simplie without the said Quality the Creditors of the Son might by their Diligence affect the said alimentary Liferent except so much of the same as the Lords should think fit to reserve for a competent Aliment to the Son but there was not a Decision in the Case Mr. John Hay Clerk Concluded Cause D. 456. Captain Binnie contra Gibson 20 June 1677. THE Lords Found That a Partie being pursued as representing his predecessor for payment of the Sum due by a Bond might propone a Defence of Payment notwithstanding that he had before pursued an Improbation of the said Bond In respect the Bond being ancient and not granted by himself he was in bona fide to pursue Improbation of the same and thereafter it appearing to be a true Bond he may also alledge payment giving his Oath of Calumny upon the Defence D. 457. Pringle contra Pringle of Torsonce 21. June 1677. THE Laird of Torsonce having disponed his Estate to his Eldest Son for Love and Favour with a Provision contained in the Disposition that it should be lawful to him to burden the saids Lands by Wadsets of the same Or Annualrents forth thereof for the Sum of 5000 Merks Redeemable by his Son And having thereafter granted a Bond to a Daughter of a second Marriage of 1000. merks who did pursue the Representatives of the Son for the said Sum It was Alledged for the Defender That he could not be pursued Personally but if there were any Ground of an Action it would be only for a Declarator that the Lands are lyable to the said Debt 2. That there could be no Ground of Declarator in respect the Disponer had not made use of the said Faculty nor granted a Wadset for the said Sum and that the Defunct had a personal Estate and Executry And in swa far as he had not conform to the said faculty secured the Pursuer out of the said Lands he had declared his Intention not to make use of the said faculty The Lords Found That the Pursuer ought to discuss the Executry and any other Estate belonging to the Disponer and if the said Sum could not be recovered out of the personal Estate that he might have recourse against the said Lands which was Found by the Lords upon these considerations viz. That the Right made by the Father being for Love and Favour the said Reservation ought to be interprete benigne and it was to be considered quid actum the Fathers intention being to have a Power to contract alse much Debt as might amount to the said Sum And eo ipso that he did grant the said Bond he did burden the said Lands virtually and in his own time they might have been comprysed for the said Sum and therfore may be now affected and comprysed 2. The Fathers End being to have power to burden with the said Sum the modus and way was insert ex stylo by the writer that which is mentioned in the Disposition being the most ordinary and therfore to be understood demonstrative but not taxative 3. Tho some of the Lords were of Opinion That the Pursuer may immediatly as other Creditors have recourse against the Estate yet it seemed to be reasonable that in this case the Reservation being in the Terms foresaid and the Bond whereupon the Security was founded not relating to the same the Executry should be first discust Seing by the Common Law the Executry was ever first lyable And tho by the Lords Practice Creditors may pursue either the Heir or Executor yet there being such a speciality in this case and the Defender not representing personally the Grandfather as Heir or otherways by Progress his Representatives ought to be first discust and the said Lands to be lyable only in subsidium Actores Sir George MckenÈie Mr. Robert Stewart Alteri Lockheart and Pringle Gibson Clerk In praesentia D. 458. Malloch contra The Relict of David Boid 26. June 1677. A Second Compryser having pursued a Declarator that the prior Comprysing was satisfied by Intromission and the Defender having in the Compt and Reckoning given in an Article of Debursements for prosecuting and defending of Processes concerning his Right The Lords Found That as to the extinguishing of the Comprysing upon the account of Intromission the Expences in deduceing the Comprysing and obtaining Infeftment were only to be allowed but not any other extrinsick Debursements But the Comprysing being extinct and satisfied if there were any superplus of Mails and Duties for which the Compryser was to be comptable he might retain of the first end of the same such as were profitably expended not only in Relation to his own but the Pursuers Right Newbyth Reporter D. 459. _____ contra _____ eod die THE Defender in a SpulÈie having Alledged that the Goods were his own and that having
could not Dispone the Lands for an Onerous Cause But if the Father had Disponed the Lands provided by the Contract without an Onerous Cause after the Elder Son his Fee or had resigned of purpose to defraud the Heir of the second Marriage the Father would be Lyable de Dolo and the said Deeds reduceible But the Eldest Son being once Liberate by implement would not be Lyable Tweeddale contra DrumelÈior There being Heirs General and Heirs Male and of Provision and Heirs of a second Marriage being provided by their Mothers Contract of Marriage to certain Provisions whereunto they have Right as Heirs of Provision Quaeritur quo ordine will the Heirs of the second Marriage be lyable to Debts and Discussion Answer It is thought that they being Heirs upon an Obligement quasi creditores it would appear that they should be Lyable in the last place in subsidium all others being discust In Contracts of Marriage The Husband being for the most part obliged to provide and resign his Estate for Infeftment to himself and the Heirs Male of the Marriage which FailÈieing to his Heirs Male of any other Marriage which FailÈieing the Heirs Female of his own Body the Eldest succeeding without Division Quaeritur If the Husband should resign and take such a Right upon Resignation but thereafter should resign in favours of other Heirs Whether the Heirs of the Marriage may question the said alteration and what way Ratio Dubitandi That an Heir is eadem persona and cannot question the Deed of the Person whom he represents Answer He is not simply Heir but Heir of the Marriage And as to Obligements in his favours he is Creditor 2do It is thought he may pursue a Reduction of the foresaid Deed as being in prejudice of him as Creditor or he may pursue the Heir of Provision by the posterior Right for implement of the said Obligement Quaeritur When by such Provisions there are other Heirs substitute to the Heirs of the Marriage Whether the Husband may alter the Destinations as to the said other Heirs And if he do if they may question the Deed Answer It is thought that the Heirs of the Marriage are only in Obligatione And the other Heirs in destinatione mariti which he may alter A Person being obliged by Contract of Marriage to resign certain Lands in favours of himself and his Wife in Liferent and the Heirs Male of the Marriage whilk FailÈieing his Heirs whatsomever And likewayes being obliged that what he should get by his Wife by any Legacy or Right or Assignation in her favours to secure and employ the same to himself and her in Liferent and to the Heirs of the Marriage which FailÈieing to his Heirs whatsomever And he having accordingly resigned and taken Infeftment to him and her and the Heirs foresaid And a Sum of Money having fallen to her and being uplifted and Discharged both by him and his Wife before Inhibition and thereafter there being Inhibition upon the said Contract at the instance of certain Friends at whose instance Execution is appointed to follow These Questions do arise 1mo If notwithstanding the said Inhibition he may Dispone the Lands Answer He may Dispone the same being Fiar And the import of the said Obligement is that the Right of Succession as to the said Lands should be secured to the Heirs of the Marriage in case the Father should decease in the Fee of the same so that he cannot provide them to other Heirs But it is not intended thereby that the Father should not have the Right competent to all Fiars Viz. That they may dispose of the same if their condition requires Quaeritur If he may at least Dispone the same without an Onerous Cause Answer It is thought not seing all Obligements should be understood ut actus valeant operentur And though the Father be Fiar his Fee is by the said Obligement so restricted in favours of the Heirs of the Marriage that he cannot fraudulently and to evacuate the said Obligement Dispone without an Onerous Cause If the Inhibition will be effectual as to the Sum e. g. of 10000 lib. neveremployed Answer It will be effectual as to the Wife But as to the Heirs of the Marriage there may be question Ratio Dubitandi That there being an Obligement it ought to be once fulfilled by employment to him and his Wife and to the Heirs of the Marriage And on the other part seing notwithstanding the Inhibition he might have disposed of the said Sum if it had been employed there is eadem Ratio if it be not employed Seing his Condition may be such that he cannot employ the same If it be not to be considered what truely his Condition is And if it be such that he cannot employ the said Sum without Ruine That he should not be obliged to employ it Dicis Causa to be thereafter uplifted And if a Process may be intented against his Children to hear and see it Found and Declared that he should have power to Dispone notwithstanding of the said Inhibition and Obligement foresaid both as to Lands and Money Seing if the Money were employed he could and might dispose of the same being Fiar And he is not in that Condition to raise the said Sum and employ it Watson of Damhead Heirs Portioners WHen Women succeed as Heirs whatsomever v. g. Three Daughters they succeed as Heirs Portioners without any priviledge of Primogeniture Quaeritur if the Three Daughters succeeding be deceased leaving each of them Sons and Daughters Will the Eldest Son of any of them exclude the rest of the Children and be Sole Heir Portioner to the Grandfather Ratio Dubitandi As Primogeniture is introduced for the preservation of Families which does not militate in successione Foeminea Women being finis caput Familiae There ought to be no respect to the same in the second Degree nepotibus as there is not in primo gradu in filiabus There being utrinque eadem Ratio Where there is a plurality of Heirs Portioners and some of them become Lapsi may the Debt be recovered in solidum from these who are Responsal Cogitandum If a Barony descend to Heirs Portioners will all have Right of a Barony If any Superiorities belong to the Barony will the Eldest only be Superior Heirs of Provision and substitute WHatever belongeth to a Defunct in Fee and Property whether Land or any other Interest the time of his decease cannot be transmitted but to Representatives or these who are instar haeredum and bonorum possessores as in the case of Lands provided to Bairns of the Marriage the Bairns are in effect Heirs of Provision And if Sumes be provided by way of Substitution to another person after the decease of the Creditor the Substitute will be Lyable to the Creditors Debt other Heirs being discussed Heirs of Provision being oftimes Strangers and in re certa Quaeritur will they only be Lyable secundum vires If a Right of
all Right he could pretend thereto But not the Interest and Superiority that belonged to the Traitor unless it were expresly Disponed actus agentium non operantur ultra eorum intentionem Duncan of Lunaie The King having granted to my Lord Kincardine and thereafter to the Chancellor a Gift of the Wards and Non-entries that had fallen or should fall during the time therein mentioned Respective and thereafter having given diverse Infeftments with a Novo-damus Quaeritur If the foresaid Donators could be prejudged by the saids Novo-damus Answer It is thought that the saids Novo-damus are of the nature of Gifts or Discharges of such Casualities which the King might grant before Intimation made to the persons of the said Gifts Nullitas ex verbis non licebit VErba non licet vel non licebit annullant actum important siquidem necessitatem praecisam negant potentiam resistant actui aliter factum invalidant Thes Bes in Litera K. 31. verbo Kan Sect. ultima p. 469. Clausula ex nunc prout ex tunc VErba Ex nunc prout ex tunc sunt retro activa important canonem latae sententiae operanturque actum completum etiamsi verbum futuri temporis sit adjectum adeo ut unum tempus insit alteri extremum in primo primum in postremo Heringius de Molendinis quaest 1. n. 45. Nundinae NVndinarum solennium Jus ad majora Regalia pertinet Nunquam Caesar consuevit alicui dare Nundinarum privilegium nisi prius adjacentibus vicinis Civitatibus quarum interesse potest auditis Nundinarum favor magnus est quia earum tempore res aut personae alicujus arrestari non debent Secus in Mercatis Quemadmodum tempore Nundinarum in loco illarum arrestare aliquem non licet ita etiam nec in illo sine quo Mercatores ad Nundinas venire non possunt Thes Besold in Litera M. 43. p. 631. O. Oath of Coronation IF what is required and promised by the King the time of his Coronation be understood to be Conditiones Regni so that the same not being fulfilled the People is free Answer These are not Conditiones either Suspensivae or Resolutivae but modus regnandi And albeit Modus ought to be fulfilled and subjects who are under a Coercive Power may be urged to observe the same yet a Prince who is subject to no higher Power relinquitur Religioni Juramenti Deum solum habet ultorem These Similies may be urged to this purpose viz. A Father is obliged not to provoke or wrong his Children and that is Modus implyed in the Relation of a Father and yet if he do otherwayes the Relation is not taken away And when Parties are Married there is Stipulation hinc inde of mutual Duty not only as to Chastity but as to other Duties and yet though they fail in the same being only Modus vinculi conjugalis the Marriage is not dissolved except in the case of Adultery That Duty of mutual Chastity being inter essentialia and the other Duties inter naturalia conjugii Qualified Oaths WHether qualified Oaths may be received before Inferior Judges Answer It is thought not The question whether the qualities should be construed qualities or Exceptions being of that difficulty that they are not to be decided by Inferior Judges The Lords are not in use to receive qualified Oaths unless they be given in to be seen by the other Party and upon debate be found Relevant so that the person who is to give his Oath may be admitted to Swear in the terms of the same as being properly Qualities and not Exceptions Quaeritur What Qualities ought to be sustained And seing it is the common opinion that intrinsick qualities may be received Quaeritur What Qualities are to be thought Intrinsick Answer These are Intrinsick that are inherent in the Act and Matter in question v. g. If it be referred to the Defenders Oath that he promised to pay the Pursuer a Sum of Money he may declare in what Terms he promised pure in diem or sub Conditione If it be referred to a Parties Oath that he is Lyable for a House-mail having taken and dwelt therein after three Years Quaeritur If he may declare with that Quality that he payed the same Ratio Dubitandi That it is Extrinsick and not a Quality but an Exception On the other part quomodo unumquodque ligatur solvitur and the Debt not being proven but by his Oath he may prove payment the same way 2do There is a presumption in Law which is the Ground of so momentary a Prescription That such Debts are not so long owing And therefore it ought to be proven by the Defenders Oath they are owing 3tio It is the common practice that Parties that are not bound by Write think they are in tuto to pay without Writ If he declare not positive that he payed but that he Assigned a bond or Debt in satisfaction Quaeritur If that Quality should be received Answer It is thought that it is not intrinsick Correspective Obligements QVid Juris If there be correspective Writs of one Date but not in one Body as v. g. a Disposition of Lands and a Bond of the same date for payment of the price If the Exception competent against the price viz. The Disponer cannot be lyable unless the price be payed will militate against the singular Successor Ratio Dubitandi The Disponer sequitur fidem And the Obligement to pay the price is not in corpore juris so that the Assigney is in bona fide to take a Right thereto Contra Personal Exceptions competent against the Cedent are competent against the Assigney in Obligations personal hinc inde It is informed that there is a Decision That such Exceptions are not competent against Assigneys Mutual Obligements in Contracts IF there be a mutual Contract anent the selling of Lands and payment of the price the Buyers creditor comprise the minute in so far as it is in his favours whether he will have action for implement unless he pay the price Answer He will not Seing the final cause of the Disposition is the Price If Offices do Escheat by Horning IF the Keeper of a Register or Writer to a Seal be at the Horn Quaeritur if his Office will fall under his Escheat Ratio Dubitandi That nothing is Escheatable but that which may be transmitted and is applicable to another whereas an Office is a personal Function and industria personae eligitur which is so personal that it cannot be conveyed by his Escheat to another If at least the Rebell doth forefault his interest if he be year and Day at the Horn And Quid Juris as to Judges who have places from the King and as to Commissars and Ministers that are presented by other Patrons whether by their Rebellion they be so disenabled that they cannot enjoy their Places and their Patrons can present others Whether at least Relaxation will repone the Rebell and take
And seing he is in dolo that he does not make use of it the Law doth justly provide that it may be comprised and used to that end which both in Law and Conscience he should have used for himself Et interest Reipublicae ut quis re sua bene utatur Legal Reversion competent to Idiots c. QVaeritur If a Fatuous Person or Idiot having Right to a Legal Reversion has the Benefit competent to a Minor to redeem after his recovery Answer It is thought not seing by our Law and Custom Minors before the Act of Parliament 1621. had not that benefit And by the said Act of Parliament it is given only to Minors Et Exceptio firmat Regulam c. And neither can Statutes be extended nor is there eadem Ratio seing the time of Minority is defined Whereas a Fatuous Person may live a very long time and it is hard that the Creditor should be in incerto all that time as to his Right and Dominium whether it be simple or redeemable Earl of Kincardin If Actions upon Contracts do prescribe against Fatuous Persons Answer They do not prescribe quia non valent agere and there is a Difference betwixt Prescription of Actions and of Legal and other limited Reversions which are only given for a certain time Because Jus Limitatum to a certain time producit limitatum effectum viz. A limited Action during the said time And it being just and the Compriser or Heretors Interest That the Reversion should be only limited and for the said time ne Dominium sit in incerto as said is he cannot be in worse case by Reason of the condition of the Party who has Right to the Reversion being Minor or Fatuous and in effect by a Reversion the Compriser or Heretors Right is Jus resolubile sub conditione potestativa and in such cases it cannot be pretended that the party could not satisfy the condition being Minor Fatuus Rights made by Dyvours QVaeritur Whereas by the Act of Parliament anent Dyvours Rights granted without an Onerous Cause in prejudice of Creditors are reduceible without Prejudice always of those who have acquired Rights from the Confident Person bona fide If the said Salvo should be extended to Comprysers Ratio Dubitandi That it appears hard that Creditors should be prejudged and be in worse case by the Fraud of their Debitor and their action being competent to them and nata immediatly after the fraudful Alienation should be taken away from them without their own Deed and yet the said Salvo being only in favours of Purchasers and favore Commercii and of these who bona fide contract with Persons that are not inhibited neither they nor their Authors should be excluded and Comprysers cannot plead the favour of Commerce seing they have not any Commerce nor Contract with a Confident Person but against their will use Execution against what they conceive doth belong to him which they do upon their own hazard and therefore ought not to be in better case than their Debitor and cannot have his Right but as he had it Et cum sua causa Fraudulent Rights in prejudice of Creditors A Debitor after expired Apprysings Dispones his Estate so incumbered by a Contract bearing an obligement that the Disponer should cause the Comprisers Dispone their Right or that it should be lawful to the Buyer to acquire them And after all should be purged the Buyer being obliged to pay the Sum thereinmentioned and accordingly having payed the same to the Seller Quaeritur If such a Transaction though it cannot be questioned upon that head that it is without a just price yet may be questioned upon the Act of Parliament as being without a necessary cause and of purpose to defraud Creditors who had not preferable Rights If a Person be in that condition that his Debt will exceed the value of his Estate and because his condition is not known and being a person of Credit he is not inhibited any confident friend knowing his condition if he should acquire a Right to his Estate in hail or in part for a price equivalent of purpose that he may have a Livelyhood Quaeritur if such a Right may be quarelled as fraudulent Ratio Dubitandi That it is for an Onerous cause And on the other part The Cause was not just nor necessary and it is presumed that the said course was taken in defraud of the Creditors Right a non habente potestatem THE King having Disponed Lands having fallen in his hands by Forefaulture and the Infeftment being past under the Great Seal the person to whom it was granted did decease before Seasin and thereafter another Donator procured a Right under the Great Seal and was Infeft thereupon Quaeritur If the second Gift may be questioned as being a non habente potestatem in respect the King was fully denuded in favours of the first Donator and nothing could be done more to denude him by himself and the taking of Seasin is not the Act of the King but of the Party And it could not be imputed to the Donator that he did not take Seasin being surprised by Death And double Rights are forbidden by the Law Rights ad Tractum futuri Temporis WHen a Tack or Annuity for certain years belongs to a person It does not belong to his Executors because it has Tractum futuri Temporis But if he have Right to it by the Escheat of another person it will belong to his Executors To consider what is the reason of the difference Right in Trust HIs Majesty having upon the Forefaulture of the Earl of Argyle given a part of the Estate to My Lord Lorn with the Title of Earl beside what he was Infeft in before And having given of Provision for the rest of the Children alse many Lands as would extend to the Rents alloted to them and having given out of the Estate a Liferent to the Lady Argyle and the rest of the Estate to the Creditors and having appointed the Lords of Session Commissioners for hearing the Creditors claims and determining the same and upon their competition for preference There is also a Right of the Estate settled upon Three Trustees to the longest liver of them Three without mention of Heirs and Assigneys being Three Clerks one of the Session one of the Council and one of the Exchequer to the uses foresaid and that the said Estate may be conveyed and alloted as His Majesty had Ordered Quaeritur If a Signature to the effect foresaid be habilis modus Answer It is thought not Seing there being no mention of Heirs the said Right granted to the Trustees if they should all Die will evanish albeit it be granted to them in Fee And therefore it is thought that the proper way were That a Commission only should be granted to the Trustees to Dispone to such persons as the Commissioners should appoint And as to Lands holden of the King Charters should be granted making mention of
is but a Reduction for not Production The said Point being of great Concernment and the Debate being upon a Bill and the Process not produced that it might appear whether it was intented within the 40 years or not it was not decided D. 197. Cranston contra Brown 21. Novemb. 1674. A Testator having left by Testament a Sum of Money due upon an Heretable Surety and having named his Sister as Executor and universal Legator she was pursued for payment of the said Legacy at the least that being likeways Heir she should denude her self of the Right of the said Sum. It was Alledged for her That the Subject being Heretable the Defunct could not bequeath the same in Testament It was Replyed That when res aliena is left in Legacy the Executor in Law tenetur luere and ought to redeem the same or pay the value and multo magis in this case the Testator having in effect left res sua though upon the matter res aliena as to the power of disposing of the same on Death-bed or by Testament And therefore the Executrix if she be Heir as she is in this Case ought to give the same and if she were not Heir ought to redeem the same as said is The Lords upon the debate amongst themselves considered that in Law legatum rei alienae is effectual if the Testator sciebat rem alienam whereas si nesciebat it is to be persumed he would not have left that which was not his own and tho the Testator upon mistake was ignorant that it was res aliena yet if the Legator was of so near Relation that it was probable he should have left the legacie at least the value if he had knowen it was res aliena the Legacy was effectual And that in the case in question the Legator was the Defuncts Nevoy by his Brother and the Sum that was left was his own tho Heretable as said is and the Testator either knew that he could not dispose of the same being Heretable and was presumed and obliged to know the Law and if he was ignorant in point of Law ignorantia Juris nocet and therefore the Lords inclined to sustain the Legacy But one of their Number having desired that the Decision might be delayed while the next day that he might have his thoughts upon the Case the same was delayed Strathurd Reporter Mr. John Hay Clerk D. 198. Pilton contra the Creditors of the Lord Sinclair 30. November 1674. THE deceast Lord Sinclair having maryed his Daughter with John Sinclair younger of Hermiston did dispone to him his Estate with the Burden of his own proper Debts mentioned in the Right and took a Bond for an Annuity of 8000 merks first in the name of John Watt and thereafter the said Bond being given back he did take another Bond for the said Annuity during his Lifetime in the Name of George Cockburn of Pilton Whereupon the said George did diligence by Comprysing and otherways against the said John Sinclair of Herdmanston and did also take the said John Sinclair's Liferent Escheat And upon the Grounds foresaid and a Suspension of double Poinding against him diverse Creditors of the Lord Sinclair did question Pilton's Interest upon the foresaid Bond as being fraudulent and a contrivance to frustrate Creditors and to secure so considerable an Interest for the use of the Debitor contrare to the Act of Parliament 1621. The Lords notwithstanding preferred the said George Cockburn as having Right to the Duties of Herdmanston's Estate by vertue of the said Gift of Escheat reserving to the Creditors their Declarator of Trust or Reduction upon the said Act of Parliament And accordingly the whole Estate of Herdmanston being set in Tack thereafter the Tack-duty is payable to Pilton and the other Creditors in order conform to the said Decreet The Tacks-men being charged at the instance of Pilton Did Suspend upon double poinding pretending they were troubled by other Creditors of the Lord Sinclair And the said Creditors compearing did alledge that they ought to be preferred to Pilton in respect his interest ab initio by the said Bond for the Annuity foresaid of 8000 Merks was a fraudulent contrivance in prejudice of the Lord Sinclair's Creditors that the foresaid Annuity might be secured to him in the Person of Pilton his Friend and Relation and thereupon might live plentifully his Creditors being defrauded and suffering in the mean time And that the Gift of Escheat of Herdmanstons's Liferent being granted intuitu and upon account of the said interest laborat eodem vitio and was in effect to the behoof of the Lord Sinclair It was Answered for Pilton That tho the said Bond was granted to him without an Onerous Cause yet intuitu of the same and thinking that he was thereby secured he had bona fide alimented my Lord Sinclair and had payed to himself and had engaged to others for him to pay diverse Sums of Money before any interruption made by the Creditors So that before any Diligence done by them his Right became Onerous and the Gift of Escheat of Herdmanston's Estate was taken by him to secure himself as to his relief And that the King and Exchequer did and might give the said Gift to him upon the consideration foresaid and thereupon in the former Decreet of multiple poinding he was preferred to all other Creditors And that his Majesty had also gifted the Liferent Escheat of the said Lord Sinclair to Mr. George Gibson upon a Back-bond that thereby he and the other Creditors thereinmentioned being satisfied the superplus and benefite of the said Escheat should be applyed for the Aliment of the said Lord Sinclair And therefore tho Pilton should not have Right as he had to the said Tack-duty the foresaid Annuity and Gift of Escheat of Herdmanston's Liferent would accrue to Mr. George Gibson Donator to the uses foresaid and fall under his Gift It was Answered for the Creditors That they were content the Lords should modify an Aliment for the Lord Sinclair And that Pilton's interest should be sustained effeirand thereto the Superplus being applyed as it ought to be for their satisfaction The Lords for the most part enclined to Find that George Cockburn's Right to the said Annuity was Onerous In sua far as he could instruct that he had payed to or for the use of my Lord Sinclair any Sums of Money before the Creditors Diligence Yet some were of the opinion That the Laird of Hermanston having Married my Lord Sinclair's Daughter and having given the said Bond for the Annuity dureing my Lord Sinclair's Lifetime was a down-right contrivance contrare to the Act of Parliament 1621. to the end that the Right to the said Annuity which if it had been taken in the person of my Lord Sinclair himself would have been lyable to his Creditors might be so conveyed in the person of another that it should not be lyable to the said Lord Sinclair's Debts and being ab initio fraudulent it
Inhibition as to them which ought to be allowed as payment pro tanto It was Answered That the Alledgance is not Relevant unless it were in these Terms that the Pursuer or his Father had accepted what was payed by the saids persons in satisfaction of the Debt pro tanto otherwayes that there is no solutio but only a Transaction betwixt the persons foresaid and the Pursuer to free themselves from Trouble and of a Plea and what was given was not in satisfaction of the Debt in whole or in part but upon the account foresaid And seing the Creditor having inhibite so that his Inhibition did affect diverse Lands or having diverse persons bound to him as Cautioners might warrantably pass from his Inhibition as to some of the Lands and discharge such of the Cautioners as he thought fit he might also take a consideration for doing the favour foresaid The Lords thought That if it should be allowed to Creditors to make such Transactions and what they should get upon account of the same should not be allowed in payment they might get more nor the double of their Debt at least more than Principal and Annualrent and that it would be the occasion of usury They Found the Defence Relevant that what should be proven to be given eo nomine should be imputed in satisfaction Gibson Clerk D. 214. Innes contra Innes 7. January 1675. BY a Contract of Marriage a Sum being provided to the Husband and his Wife and to the Heirs Male of the Marriage whilks FailÈieing to the Fathers Heirs Male whatsomever An Inhibition upon the said Contract at the instance of the Eldest Son of the Marriage and Reduction thereupon was not sustained because the Father was living and the Son neither was nor could be Heir to him In respect the Father was living And tho he were dead the Son could have no Right unless he were Heir in which case he would be obliged to warrand Glendoich Reporter D. 215. Laird of Luss contra E. of Nithsdale eod die A Bond being alledged to be granted by the Earl of Nithsdale in anno 1621 to one Colquhone and his Wife for 6000 Merks And a pursuit being intented thereupon It was Alledged That the Bond was most suspicious being so Ancient and nothing done thereupon and in respect of other great presumptions viz. the quality and condition of the said Adam when the said Bond was granted being designed the Earl's Servant And that it was improbable he could have so much Money to lend his Master or that he and his Heirs should have so long wanted the same And that it appears that the Bond has been Blank ab initio the Creditors Name being filled up with another Ink And the said Adam being designed to have been the Writer of the Bond and yet where it bears that he is Writer it does not bear the said Adam which it would have born if his name had been filled up from the beginning And it appears that the Earl being known to be a person negligent and being at London for the time and having to do with Money might have given the Bond to the said Adam his Servant for raising of Money and that he forgot to call for it The Lords Found That the said Bond could not be taken away upon the presumptions foresaid unless it were either prescrived or the Defenders would offer to improve it Gibson Clerk D. 216. Mcintoish contra Frazer 9. January 1675. McIntoish pursued Frazer of Streichen for payment of a Sum due upon Bond In which Pursuite two Defences being proponed viz. Prescription and Payment and a Reply made to the first viz. Interruption by a pursuit and Litiscontestation being made upon the Defence of payment and the said Reply It was Alledged when the Cause was to be advised contra producta viz. That the Summonds and Execution thereupon produced for proving Interruption did not prove the same In respect the Summonds were never called nor any Document taken in Judgment thereupon And as to the Discharge produced It was Alledged That it was granted by the persons thereinmentioned as Curators to the Pursuer and was not subscribed by the Pursuer himself as it ought to have been there being a great difference betwixt Tutors and Curators In respect Tutors must act for the Minor and are Authors as to all deeds done by them but Curators do only concurr and ought to advise and consent to the deeds of their Minor which otherwayes are not valid The Lords did Find the Discharge did not prove and it could not be obtruded to the Pursuer who had not subscribed the same and did also Find that the Summonds and Execution did sufficiently interrupt Concluded cause Actor Falconer alteri Seaton Monro Clerk D. 217. Town of Edinburgh contra Earl of Loudoune eod die THE Lady Yester having Mortified a certain Sum of Money for the Poor in certain Paroches in the South and having employed to the End foresaid the foresaid Sum upon Bond or Contract granted by the Town of Edinburgh The Ministers of the said Paroches did pursue the Town of Edinburgh to hear and see the Tenor of the said Write to be proven and that being done that they should be decerned to pay And did sufficiently prove the Tenor of the same In the Process against the Town There was a Defence proponed viz. That my Lord Loudoune who had Interest in the said Mortification had got payment of the said Sum from the Town of Edinburgh which they offered to prove by his Oath The Lords having Ordained his Oath to be taken before Answer And he being Summonded to that effect he was holden as confest And having thereafter upon a Bill Desired to be Reponed to give his Oath and being Reponed he was holden as confest the second time And in respect that the said Defence was not proven by his Oath The Lords proceeded and decerned against the Town The Town of Edinburgh having intented Process against the Earl of Loudoune for refounding the said Sum upon that medium that the same was formerly payed to him and that he had confessed at least was holden as Confest which is equivalent as to the payment of the said Sum. It was Alledged That his being holden as Confest in the Process foresaid did operate only that the Defence referred to his Oath was not proven but could not be a Ground of pursuite against himself unless it were proven by his Oath that the said Sum was payed to him and he desired to be Reponed to his Oath It was Answered That he being twice holden as Confest there was no reason to Repone him and his being holden as Confest doth operate in Law alsemuch as if he had confessed the said Sum Seing through his Contumacy the Pursuers are prejudged And he cannot pretend that he was not a Party in that Process seing he was holden as Confest and in the same Process craved to be Reponed and was Reponed as said is And tho he had not
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