Tennents neither is the Appryzing equivalent to an Resignation accepted albeit it being an incompleat legal Diligence it may be compleated against the Superior after the Vassals Death yet not so as if the Superior had Received a Resignation from the Appryzer which is the Superiors voluntar Deed but there is nothing upon the Appryzing to force him to give Infeftment to the Appryzer until conform to the Act of Parliament a years Rent of the Appryzed Lands be offered to him and therewith a Charter offered to Subscrive which being done upon his Delay Fault or Contumacy he may be excluded from the subsequent Casualties and cannot thereby be gainer in prejudice of the Appryzer but otherwiâ—e without his Fault he cannot loss the Casualties It was answered for the Appryzer that the Appryzing and Charge did state the Appryzer as Vassal and there was no inconvenience thereupon to Creditors more then if they had been actually Infeft 2dly Our Statute hath provided contrair to the Common Feudal Customs that Superiors must Receive Strangers being Creditors Appryzing for payment of a years Rent so that the Superior can have no more but the years Rent and not the subsequent Waird also and there being mutual Obligations between the Superior and the Appryzer introduced by the Statute viz. that the Superior should Receive the Appryzer and that the Appryzer should pay to the Superior a years Rent as in all mutual Obligations so in these the Delay of the one Party in performance of his Obligation doth stop the Execution and Effect of the other Obligation to him ay and while he perform but quando mora purgatur by performance of the one Party both Obligations are effectual as a principio and therefore albeit the Appryzer had been obliged to pay a years Rent when he were Inâ—eft and did it not the time of the Charge yet now he offers to do it at the Bar unde purgatur mora and the Superior must Receive him in obedience to the Charge which must be drawen back to the Charge and the Lords cannot but find the Leâ—â—ers that is to say the Charge orderly proceeded neither can there be any fault in the Appryzer that he did not then offer a years Duty when he Charged because it was not liquid nor constant what the years Duty was and therefore he was only obliged to do it after the liquidation and modification of the Lords and lastly he having proceeded as all other Appyzers have done by perpetual Custom he was in bona fide to acquiesce It was answered for the Donator that this former ground holds still good that the Casualties of his Superiority cannot be lost to him without his Delay or Fault and the Case is no way here as in mutual Obligations but as in a Conditional Obligation for the Statute obliges the Superior to Receive the Appryzer he paying a years Rent which being per ablativum absolute positum is ever interpret as Condition as if it had said the Superior shall Receive him if he pay a years Rent but by the Statue there is no obligation put upon the Appryzer to pay the years Rent for the payment is in Condition and not in Obligation and the Appryzer may ever forbear to seek the Infeftment and yet will obtain Malls and Duties and so will Possess and exclude the Superior both from the Casualities of his Superiority and his years Rent therefore by the Statute there is only a Conditional Obligation upon the Superior to Receive the Appryzer upon payment of a years Rent now the nature of all Conditional Obligations is that pendente conditione ante purificationem nulla obligatio so that till that time whatever occurs is freely the Superiors And albeit the Lords will now upon offer of a Charter and the years Duty give a Sentence the ordinar Stile whereof is finding the Letters orderly proceeded without putting the Appryzer to a new Charge yet they do not thereby find that at the beginning the Charge was orderly without the offer but that now it becomes orderly by the offer and therefore hath only effect from the offer and not from the Charge and prejudges not the Superior of the Waird falling before the offer 2dly The Superior at the time of the Charge offered obedience upon production of a Charter and a years Duty to the Messenger who Charged him conform to an Instrument produced the Appryzer himself not having Appeared The Appryzer answered that the Superior ought to have drawen up a Charter and Suspended Consigning the Charter in the Clerks Hands in obedience to bâ— given up to the Appryzer after payment of the years Rent conform to the Lords modification and it was not enough to offer obedience to a Messenger or to require a years Rent which is not liquid but by the Lords Sentence and further alleadged that it was lately found that a Liferent Escheat falling after a Charge did not exclude the Appryzer and there can be no Reason but the same should be in a Waird It was answered that no such Practique was produced nor acknowledged and that in a Liferent Escheat the Vassal against whom the Appryzing was led might collude and might let himself go year and day at the Horn of purpose to prejudge the Appryzer but the Waird falling by his Deâ—th there is no suspition of collusion and the Waird is due by the reddendo of the Charter but the Liferent is only due by an extrinsick Law and Custom The Lords found that the Charge did noâ— stâ—â—e the Appryzer as Vassal so that the Waird would have fallen by his Death neither did they consider the inconveniency of the Superior as wanting the Superiorities by both Parties if he were Contumacious aut in culpa But they found that the Superior was not in culpa or in mora until the Appryzer presented to him a Charter upon obedience and offered some Money for his Entry and Caution for what further the Lords should Decern and did not find the Superior obliged to require the Vassal so to do and therefore found the Superior here not in mora aut culpa and found the Waird to belong to him and preferred the Donator and declared they would follow it as a Rule in all time coming Thomas Cowan contra Young and Reid Eodem die ADam Young having Married his Daughter by the first Marriage to Thomas Cowan and given him two thousand Merks of Tocher in satisfaction of all she could claim did by a second Contract of Marriage provide a thousand Merks to the Heirs of that Marriage and all his Conquest during the Marriage after which Contract he gave a Bond of 400. Pound to his Daughter of the first Marriage bearing to be payed in parcels as he was able and after the Bond he Disponed his Goods and Gear to his Daughter of the second Marriage Now the Daughter of the first Marriage pursues the Daughter of the second Marriage to pay the Bond as she who Intrometted with the Defuncts Goods The
Disponed these Lands to the Pursuer with her consent Subscribing the Disposition It was Duplyed The Defenders Subscription and Consent was Extorted metus causa whereupon she has Action of Reduction depending and holds the production satisfied with the Writs produced and repeates her Reason by way of Duply viz. if she was compelled by her Husband it was by just fear because she offered to prove by Witnesses that he threatned her to consent or else he should do her a mischief and that he was a fierce man and had many times beaten her and shut her out of Doors and offered to prove by the Nortar and Witnesses Insert that at the time of the Subscription she declared her unwillingness The Lords found the Defense and Duply Relevant David Wilkie contra Sir Andrew Ker. Eodem die DAvid Wilkie and others Tacks-men of the Castoms Charged Sir Andrew Ker for the Tack-Duty of the Customs of the Border Anno 1650. Set by them to him he Suspends and alleadges by the publick Calamity of the English Entry in Anno 1650. in Iuly Traffick was hindered and by the Kings Proclamation against Commerce with these The Charger answered it was a Casuallity ex natura rei and that they had payed without Defalcation and the Suspender had profit in former years The Lords before answer Ordained the Suspender to Compt upon what benefit he got in Anno 1650. and what Profite above the Tack-duty in former years Adamsons contra Lord Balmerino Iune 26. 1662. ADamsons being Infeft in an old Annualrent out of two Tenements in Leith and having thereupon obtained Decreet of Poynding the Ground in Anno 1661. and insisting for poinding one of the Tennents Goods now belonging to the Lord Balmerino for the whole Annualrent Balmerino Suspends on these Reasons First The Heretor against whom the Decreet of poinding was obtained and all the Tennents were Dead and therefore it can receive no summar Execution against the present Heretor and his Tennents but there must be a new Decreet against them Secondly Balmerino hath peaceably possessed this Tenement twenty or thirty years and thereby hath the Benefit of a possessory Judgement by which his Infeftment cannot be questioned without Reduction and Declarator Thirdly The Englishes possessed this Tenement several years by the publick Calamity of War and therefore there must be Deduction of these years Annualrents as is frequently done in Feu-duties Fourthly The two Tenements being now in the hands of different singular Successors Balmerino's Tenement can only be poinded for a part of the Annualrent The Pursuer answered that Poinding of the ground is actorialis chiefly against the Ground and therefore during the Obtainers Life it is valued not only against the ground while it belonged to these Heretors and Possessors but against the same in whosoever hands it be that the Moveable Goods therein or the Ground Right thereof may be Apprized To the second Annualrents are debita fundi and a Possessory Judgement takes neither place for them nor against them To the third though in some cases Feu-duties ceass by Devestation that was never extended to Annualrents due for the profit of a Stock of Money To the fourth the Annualrent being out of two Tenements promiscuously The Annualrenter may Distress any part for the whole in whosoever hands the Tenement may be The Lords Repelled all these Defenses but superceded Execution for one half of the Annualrent for a time and Ordained the Suspender to give Commission to Balmerino to put the Decreet in Execution against the other Tenements for its proportion for his relief medio tempore Wilson contra Thomson Eodem die WIlson having obtained Decreet against Thomson for poinding of the Ground of a Tenement of Land Thomson Suspends on this Reason that the Chargers Infeftment is base and before it was cled with Possession the Suspender was publickly Infeft and thereby excludes the base Infeftment though prior The Charger answered that the Reason ought to be repelled because he had used Citation upon the base Infeftment before the publick Infeftment by which Citation res fuit letigiosa The Lords Repelled the Reason in respect of the Answer and found the base Infeftment validat by the Citation whereupon the Decreet followed Ruthven contra Laird of Gairn Iune 27. 1662. THe Laird of Gairn having Infeft his Son in his Estate reserving his own Liferent after his Sons Death his Oye pursues him for an Aliment out of the Estate conform to the Act of Parliament appointing the Heir to be Entertained by the Donatars to the Ward Conjunct-feears or Liferenters thereof The Defender alleadged absolvitor because the Act of Parliament cannot be extended to his case who voluntarly Infeft his Son in his Estate with the burden of his Liferent Secondly If any Aliment were due the Mother who is Liferenter must bear her part Thirdly Aliment is only due where the Heir hath no other means But here the Heir hath a Stock of Money which though Liferented by his Mother yet he may Entertain himself out of the Stock The Pursuer answered First That the Act of Parliament anent Alimenting of Heirs is generally against Liferenters without exception Secondly The Disposition by the Defender to the Son was for a Tocher worth all the Estate he then had wherefore no part was Liferented by the Son or his Wife the Pursuers Mother but only a sum of Money which came by her self and there is no reason that the Stock thereof should be exhausted for the Pursuers Aliment the Defender having now succeeded to a plentiful Estate The Lords Repelled the Defense in respect of the Replyes Mr. David Watson contra Mr. Iames Ellies Eodem die MR. David Watson having acquired Right to the Superiority of Stenhouse milne pursues the Feuers for their Feu-duties who alleadge First no Process the Lands in Question being Kirk-lands Disponed to a Lord of Erection and it is declared that the Lords of Erection having only right to the Feu-duty till they be Redeemed by the KING at ten Years purchase by the Act of Parliament thereanent in Anno 1633. And thereby none have Right but such as subscribed the submission surrendring their Interest in the KING'S hands untill the Pursuer Instruct that his Author did subscribe the said submission he hath no Interest Secondly absolvitor from the Feu-duties 1650. and 1651. Because the Lands were wasted these Years by publik calamity of War Thirdly absolvitor from Harrage and Carrage because all Services are reserved to the KING by the said Act of Parliament The Lords assoilzied from Harrage and Carrage but differed for the Feu-duty being smal and found no necessity for the Pursuer to instruct that this Author did subscribe the Surrender after so long time but that the same was presumed for his so long bruiking the Fee Sir William Wilson contra Sir William Murray Eodem die WIlson having Apprysed Sir William Murrays Estate pursues him and his Tenents for Mails and Duties who alleadged that by the Act
with the Kings Advocats concurse The Defender answered that the Advocats concurse was but ex stilo curiae and he could make no concurse sufficient for any Improbation and Reduction without the Kings special order The Lords found the Defense Relevant and Assoilzied at which time it was remembred that Sir Thomas Hope insisting in an Improbation of his Good-son the same was not Sustained because it wanted the Kings expresse Order Town of Cowper contra Town of Kinnothy Eodem die THe Town of Cowper having Charged the Town of Kinnothy to desist from Merchant Trade They Suspend and alleadge that they have the Priviledge of Burgh of Barony in keeping Hostlers and selling Wine The Charger answered that selling of Wine is one of their chiefest and expresse Priviledges The Lords considering that this dipped upon the Controversie betwixt Burgh Royal and Burgh of Barony which has remained undecided these thirty years would not Discusse this particular but found the Letters orderly proceeded in general ay and while the Defenders found Caution to desist from Merchant Trade without determining how far that reached Moffet contra Black Eodem die THere being a Bargain betwixt the said Moffet and Black for some Packs of Plaids by which it was agreed that the buyer for satisfaction of the price should give Assignation to certain Bonds exprest but there was no mention what Warrandice At the Discussing of the Cause the Seller craved absolute Warrandice and alleadged that seing it was not Communed that it should be a restricted Warrandice it behoved to be an Absolute being for a Cause onerous and for the price of the Goods 2ly Seing the Agreement required an Assignation in Writ to Bonds the Buyer might re integra resile seing neither the Plaids nor Bonds were Delivered The Lords found that thē Buyer who insisted behoved either to give absolute Warrandice that the Bond was not only due but should be effectual and the Creditor solvendo otherways they suffered the Seller to Resile especially seing the Bargain was not made first by words Absolute for such a price and afterwards that it had been agreed to give such Bonds for that price In which case the Bargain though verbal would have stood Alexander Falconer contra Mr. Iohn Dowgal Eodem die ALexander Falconer pursues Mr. Iohn Dowgal for payment of 1000. merks left in Legacy by umquhil Iohn Dowgal by a special Legacy of a Bond adebted by the Earl of Murray whereupon he conveens the Earl as Debitor and Mr. Iohn Dowgal as Executor for his Interest to pay the special Legacy The Exceutor alleadged that the sum belonged to him because he had Assignation thereto from the Defunct before the Legacy The Pursuer Answered that hoc dato there was sufficiency of Free-goods to make up this Legacy and albeit it had been legatum rei alienae yet being done by the Testator scienter who cannot be presumed to be ignorant of his own Assignation lately made before it must be satisfied out of the rest of the Free-Goods Which the Lords found Relevant Duke and Dutches of Hamiltoun contra Scots Eodem die DUke and Dutches of Hamiltoun being Charged for payment of a Sum due to umquhil Sir William Scot of Clerkingtoun and assigned by him to his four Children alleadged that by Act of Parliament Commission was granted for deducing so much of his Creditors Annualrents as should be found just not exceeding eight years and therefore there could be no Sentence against him as to that till the Commission had decyded The Pursuers answered that these Annualrents were not due for the years during the time the Duke was Forefault by the English which ended in Anno. 1656. and they insist but for the Annualrents since that year It 's answered for the Duke that albeit he had payed many of these years Annualrents by force of Law then standing yet that could not hinder the Deduction but that he would have Repetition or Deduction in subsequent years The Pursuers alleadged he behoved to seek the Heir for Repetition and could not deduce from them The Lords in respect of the Commission would not Decide nor Discuss the Alleadgence anent the years Annualrent but Superceeded to give Answer till the Commission had determined even till seven years after the Forefaulture to make up these that was payed before In this Process compearence was made for Sir Laurence Scot the Heir and Executor Dative who alleadged that there was 2000. merks of the Sum belonged to him because his Fathers Assignation to the Children contained an express Division of their shares which was so much less then the hail Sum Assigned The Children answered they opponed their Assignation which bare expresly an Assignation to the hail Sum and Bond it self and albeit the Division was short it was but a mistake of the Defunct and cannot prejudge the Assigneys Which the Lords found Relevant George Melvil contra Mr. Thomas Ferguson Iune 25. 1664. GEorge Melvil pursues Mr. Thomas Ferguson his step-son for the value of his aliment after the Mothers Decease The Defender alleadged◠Absolvitor because the Defunct was his own Mother and he had no means of his own and it must be presumed that she Entertained him free out of her Maternal Affection and that his Step-Father did the same after he had Married his Mother The Lords sustained the first part of the Defense but not the second anent the Step-father after the Mothers decease Alexander Allan contra Mr. John Colzier Eodem die ALexander Allan pursues Mr. Iohn Colzier to pay a sum of ninety two pounds adebted for the Defenders Mother and that upon the Defenders Missive Letter by which he oblieged him to pay the same The Defender answered absolvitor because by the missive produced he offered him to become the Pursuers Debitor for the sum due by his Mother being about ninety two pounds but by a Postcript requires the Pursuer to Intimat to him or his Friends at Falkland whether he accepted or not which he did not then till after the Defenders Mothers Death and so it being a Conditional offer not accepted is not binding Which the Lords found Relevant and Assoilzied Cauhame contra Adamson Eodem die THomas Cauhame having Appryzed a Tenement in Dumbar from Ioseph Iohnstoun pursues Iames Adamson to remove therefrom who alleadged Absolvitor because this Apprizer could be in no better case then Iohnstoun from whom he Appryzed whose Right is affected with this provision that he should pay 600. pounds to any person his Author pleased to nominat Ita est he hath Assigned the Right to the Defender so that it is a real Burden affecting the Land even against this singular Successor and included in his Authors Infeftment The pursuer answered that albeit it be in the Infeftmen yet it is no part of the Infeftment or real Right but expresly an obliegment to pay without any Clause Irritant or without declaring that the Disponers Infeftment should stand valid as to the Right of that Sum. The
this Case is as favourable because the Reversion was only to the Father in his own life and therefore the Son endeavoured to hinder him to Redeem by taking Right to this Appryzing It was answered that the Case was not alike in a Conventional Reversion as in a legal And that the Appryzing led against the Father in his life would perpetuat the Reversion and that this Case was unfavourable where the Father intended to frustrate his Heir in favours of the Wife of the second Marriage to whom he had assigned the Reversion The Lords having upon the first report considered the favourableness of the Sons Case sustained the Defense but afterward upon Bill ordained them to be heard again in presentia and having heard them The Lords were of different opinions so that that came not to a Vot But the Lords before answer ordained the Wife to insist upon her Right who alleadged that she might Redeem ad hunc effectum to enjoy the benefit of her Liferent Right after her Husbands Death It was answered First That she wanted the concourse of her Husband 2ly That her Assignation was not intimat It was answered First Her Assignation was Registrat in the Register of Reversions conform to the Act of Parliament Which Registration being publicandi causa needed no intimation 2ly That she had a Disposition in Liferent by her Contract of the Lands which carried omnejus in the Disponer as to the Liferent Right during her Life and so carried the Reversion though not exprest and her Seasine being registrat it was equivalent to the Registration of the Assignation The Lords sustained the Wifes Interest and declared in her favours for her Liferent use and found the Disposition with the Seasine Registrat and the Assignation also Registrat sufficient Cheisly contra Cuthbert Eodem die CHeisly Charges Cuthbert for his Prentis-fee Who suspends and alleadges that he was set Prentise to him as Apothecary and that he deserted that Employment and became a Drogeist and thereupon the Suspender left him It was answered that the breeding of him as a Drogeist was sufficient and that he now practised as Apothecary and Cherurgeon The Lords found this answer not Relevant the Suspender being set to him as Apothecary to make Drogs and not as a Drogeisi that buyes Drogs as to the time after he changed But the Charger having further offered to prove that he constantly in his Chamber makes as well as sell Drogs the Lords found it Relevant Richard Cunninghame contra Duke of Hamiltoun Eodem die RIchard Cuninghame pursues the Duke and Dutches of Hamiltoun for payment of a Bond granted by the late Duke which being produced appeared to have been blank in the Sum Date and Creditors Name The Defenders alleadged the Bond was null as wanting the Designation of the Writer It was answered that they did now Design him which has been alwayes allowed by the Lords It was answered that though the Lords have done so ex officio Yet in a case of this nature where the Debt is so old never mentioned before and the Bond in the substantials blank in which case the Lords ought to keep by the express words in the Act of Parliament that such Writs are null and not to be supplyed by an equivalent The Lords Repelled the Defense and admitted the Designation Hellen Hill contra Maxwels Eodem die IN an accompt and reckoning between Hellen Hill Relict of Iohn Maxwel in Glasgow who was one of the Tutors named by Iohn to his Bairns and Mr. Robert and George Maxwels his brethren who succeeded the Daughters being dead Iohn by his Testament leaves his two Daughters and failing of either of them by Decease to the other his universal Legatars one of the Daughters dyed Pupil and the other shortly after her age of 12. years nominat the said Hellen her Mother universal Legatrix whereby Hellen craved the universal Legacy of both the Daughters It was alleadged that the last Daughter not having Confirmed her self Executrix to the first the first share was never established in her Person and so could not be Transmitted by her Testament but belonged to the nearest of Kin of the first Daughter viz. The saids Maxwells It was answered That this being a Substitution of each of the two Daughters to other nominatim by the death of the one it accrest into the other ipso facto without Confirmation as in the case of Bonds of Provision payable to the Father and by Decease of him to such a Bairn named albeit the Father be Fiar and the Bairn but Heir substitute it needs not Confirmation but the Bairn may summarly charge or pursue The Lords found no need of Confirmation but that it did accresce to the second Daughter upon the death of the first and so was carried by the seconds Testament In this account Mr. Robert as Heir pursuing for the Heretable Bonds The Tutrix answered that she ought to have allowance of what was wared out upon repairing of the Tenement in Glasgow It was answered that she as Tutrix ex officio was oblieged to exhaust the Moveables first one Person being both Heir and Executor and not to exhaust the Heretable Bonds that bore Annualrent and to let the other lie unprofitable and now to apply it to her own use by her Legacy It was answered That it was employed upon the Heritage and so was profitable to the Heir only being employed upon the House and that by a Warrand the Heir being then under Tutors to repair it out of the first and readiest of the Defuncts Estate The Lords found that Article Relevant to be deduced out of the Heretable Estate Elizabeth Anderson contra Andrew Cunninghame December 7. 1665. ANdrew Cunninghames Wife having left a Legacy to Elizabeth Anderson It was alleadged by the Husband that his Wifes share of the moveables was exhausted It was answered That he having confirmed his Wifes Testament and given up the Debts due by him therein and made Faith thereon he cannot now be admitted to adduce any other Debts especially being so recent before the Testament within three or four years It was answered that he had only made Faith upon the Inventar of the Goods belonging to him but not of the Debts due by him which were only given up to abaite the Quot and albeit it may be presumed that he knew and remembred his own Debt yet presumptio cediâ— veritati seing the Creditors now produce their Bond instructing the Debt and crave preference Which the Lords found Relevant vid. Iune 9. 1666. Katharin Smith and William Duncan contra Isobel Robertson Eodem die KAtharin Smith and William Duncan having apprized from Isobel Robertson and Iohn Wilson all Right they had to a Tenement under which fell the Liferent-right of Isobel Robertson his Wife jure mariti Pursues the said Isobel for payment of the Mails and Duties that she had uplifted and of a part of the Tenement that she dwelt in her self She alleadged first that her Husbands
jus mariti could not carry her Liferent seing immediatly after the marriage he went out of the Countrey and was never heard of since and she had obtained Decreet of Adherence against him and was going on in a Divorce for malitious deserting The Lords Repelled the Alleadgance seing the Divorce was not compleat and this was four years anterior The said Isobel further alleadged absolvitor for the Rents of her Dwelling-house for bygones and for what she had uplifted because she had done it bona fide cum titulo viz. her Husbands obliegement to aliment her as his Wife bona fide possessor facit fructus consumptos suos Which the Lords found Relevant and that albeit her Husband would be lyable for these Rents which alimented his Wife yet not she David Veatch contra Iohn Duncan Eodem die DAvid Veatch as heritor of the Miln of Dersie pursues Iohn Duncan for abstracted Multures and obtains Decreet He Charges and Iohn Suspends both parties being ordained to produce their Rights the Heritor of the Miln instructs that his Author was first Infeft in the Miln before the Defenders Author was Infeft in the Land and produces a Decreet of the Lords in Anno 1575. declaring the Thirlage wherein it was alleadged that the Heretor of the Miln being first Infeft of the Common-author and producing a Precept from Cardinal Beaton then Bishop of St. Andrews Common-author ordaining the Tennents of the Defenders Land to pay the Multure to the Miln of Dersie It was alleadged this was not sufficient seing the Charter did not Thirle the Defenders Lands but was only of the Miln and Multure thereof generally as for the Cardinals Precept it was not with consent of the Chapter and so could not extend beyond the Bishops Life yet the Lords declared the Astriction notwithstanding it was now alleadged that the Defender was Infeft cum molendinis muliuris by vertue whereof he had prescribed his freedom by 40. years time It being answered that once being Thirled by the Common-author no Charter granted by him thereafter could prejudge the Feuar of the Miln And as for Prescription offered to prove Interruption by paying of Insucken-multures within the space of 40. years William Cranstoun contra Walter Pringle Decemb. 12. 1665. WIlliam Cranstoun being Vassal to Greenknow he was amerciat in his Court for a Blood committed upon Walter Pringle and being charged Suspends upon this Reason that Greenknow not being a Baron or the Kings immediat Tennent had no power of Blood-waits unless he had had an express Deputation from his Superiour the Marquess of Huntly who is Baron only having the Jurisdiction It was answered that Greenknow was Infeft cum curiis bloodwitis Which the Lords found sufficient Mr. John Pearson contra Martin and his Son Eodem die MR. Iohn Pearson by his Contract with Eupham Martin did conceive the Clause of his Tochar in thir Terms that it should be payable to him and her the longest liver of them two in Conjunct-fee and Liferent and to the Heirs of the Marriage in Fee which failzing to return to the Wifes Heirs By a second Contract betwixt the Husband and his Wife it was agreed that that Clause should be altered and that failzing the Heirs of the Marriage it should return to the mans Heirs who thereupon pursue Declarator of Right by vertue of the second Contract The Defender being absent The Lords advised the Cause wherein the difficulty appeared to be that the Tochar was provided to the Bairns in Fee So that the Husband and Wife could not alter the Succession being both Liferenters because that the Clause bears to them in Liferent and to the Bairns in Fee yet the Lords sustained the Declaratâ—r seing the Husband and Wife were named Conjunctfeers so that either of them behoved to be Fear and the adjection of and Liferent could only be understood of the Person that were Liferentar and albeit it was exprest to be the Bairns in Fee yet that could be but of a substitution seing there were no Bairns then existent Christian Barns contra Hellen Young and her Spouse Eodem die HEllen Young being provided to the Annualrent of 800 merks and to the Conquest obtained Decreet thereupon against Christian Barns the Executrix who Suspends on this Reason that the Pursuer was Infeft by the Defunct her Father in a Tenement in full satisfaction of these provisions It was answered nonrelevat unless it were alleadged that the Charger had accepted Whereupon it was alleadged Accepted in so far as she had uplifted the Mails and Duties after her Fathers death and had no other Title ascribe it to It was answered that she had another Title viz. her Goodsir had Disponed this Tenement to her Father and Mother the longest liver of them two and the Bairns of the Marriage be vertue whereof as Heir Appearand of the Marriage she might contiue and uplift and miskene the new infeftment given by her Father Which the Lords founds relvant unless the other Partie Insist on that alleadgeance proponed that the Pursuer had pursued and obtained payment upon the Title bearing in satisfaction John Ramsay contra James Wilson and others Eodem die COlonel Cunningham having impignorat a number of Jewels of great Value and immediately thereafter went out of the Countrey and never returned These Jewels were in the Custody of Iohn Ramsay who and Mr. Robert Byres had given Bond to make them furthcoming to the Colonel and now Iohn Ramsay having been Confirmed Executor to the Colonel pursues Iames Wilson and others for Exhibition and Delivery of the Jewels The Defenders alleadged absolvitor because the Jewels were Impignorat by Mr. Robert Byres for a considerable Sum of Money who having them in his Possession it was a sufficient ground for the Defenders to Contract with him because property of Moveables is presumed by Possession and therefore it is not relevant to lybel that once the Jewels were Colonel Cunninghams and therefore they must be restored to his Executors unless it were also lybeled quomodo desijt possidere so that the Jewels behoved to have past from him without his own Consent or Alienation otherwise it is alwayes presumed that he sold or gifted them and needs not be proven else no man could be secure of any Moveable if he who could instruct that he bought it could recover it from all possessors unlesse they could instruct all the wayes the same past from the first Owner The Pursuer replyed that the Case is not here as to Moveables that are ordinarily sold in Mercat but in relation to Jewels of great Value which cannot be presumed to have been Mr. Robert Byres because they were never worn by him as being his proper Good nor were they Competent to any of his quality and therefore the Defenders were in mala fide to acquire them from him without knowing his Right 2ly It is instructed by Mr. Robert Byres Letter produced that he acknowledged them to be Colonels before the Impignoration and it s
pursues for the Teinds of Kello and Cumerjame upon the Infeftment of Relief He had before obtained Sentence for the Years preceeding John Stewarts death during which his temporal Provision stood and as to which there was litle controversie by the Act of Rehabilitation but now the Pursuer insisted for the years after Iohn Stewarts death It was alleadged for the Defender First That he has Right by his Tack unexpired from the Earl of Hoom who had the only Right of Fee to the whole Abbacie by his Infeftment granted to him by the King long before the Infeftment granted to Iohn Stewart It was answered that the Earls Infeftment proceeding upon Iohn Stewarts dishabilitation that being rescinded and he rehabilitat the Earls Infeftment fell in consequentiam and John Stewarts Right on his own dimission is the only Right It was answered for the Defender that the Earl of Hooms Right did not proceed solie upon John Stewarts dishabilitation but on the Act of Annexation following thereon Anno 1612. And Johns Rehabilitation could put him in no better condition than before the Dishabilitation and so could extend no further but to the Personal Provision he then had It was answered That in that special Act of Annexation 1612. The Spirituality or Teind was excepted as it was in the General Act of Annexation and so no Right granted by the King till the Teinds were dimitted in his hand by the Titular could be respected as being a non habente potestatem at least not proceeding legitimo modo It was answered that the Teinds though not Annexed yet by the suppression of the Popish Clergie they returned to the Crown for the General Act of Annexation doth not give the King a Right but acknowledged his Right by the Ceasing of the ends for which these Benefices were granted but the Annexation makes them indissolvable from the Crown and indisposable by the King and so the Teinds being Annexed they cease not to belong to the King but they are at his Disposall and he having disposed of them to the Earl of Hoom before he disposed of them to John Stewart the Earls Right is preferable and so the Defenders as his Tacksman It was answered That all the Erections of Benefices in Temporalities were only upon Demissions of the Titulars for though the Popish Clergie was supprest yet the King presented Persons to the Benefices who had the Titles of Abbots and Commendators and sat in Parliament but had not the Office and in so far they were not supprest and so the King could not dispose of the Benefice till it were demitted by the Titular in his hands It was answered that the King could not dispose in prejudice of the Titular incumbent but that the Titular who was a naked Liferenter his Demission should reach the Fee it was against reason and John Stewart being dishabilitat when the King granted the Earl of Hooms Right so that there could be no Demission the King being in the Commendators place and could not demit to himself the dishabilitation at least was equivalent to a Demission though it had been necessar as it was not for albeit de facto the King Erected upon demissions yet that he could not after the Abbots death have Erected it or provided another or even during his Life reserving his temporal provision there could be no doubt else the Demission of a Liferenter or Administrator could never give the King Right of Fee which the Resigner had and here the King had the Right of Fee but not the Resigner Yet the Lords foundâ— that seing all Erections by Custome proceeded on Demissions that the Earl of Hoom's not proceeding so and John Stewart's proceeding upon his Demission was preferable and therefore repelled the Defense It was further alleadged that Iohn Stewart had Ratified the Defenders Tack It was answered that was but personal and could not be Relevant against the Defender being a singular Successor It was answered that the Pursuers Interest being but for relief the Defender could satisfie and pay erest upon Assignation and so his singular Title not being absolute might be so purged Which the Lords found Relevant Lord Colvil contra Town of Colross February 27. 1666. THE Lord Colvil being Infeft in the Heretable Office of the Baillerie of Culross by progress from the Earl of Argyl first Baillie who was Infeft by the Abbots before the Reformation having full power of all Jurisdictions Civil or Criminal and of all the Amerciaments Bloods and Casualities to his own behove he does thereupon pursue a Declarator of the Right against the Town of Culross which is within the Lordship of Culross that he had Right to the Bloods and to all Jurisdictions Civil and Criminal amongst the Burgesses thereof It was alleadged for the Defenders absolvitor because their Town was Erected in a Burgh Royal by the King with power of Heading and Hanging and other priviledges of Burghs Royal by vertue whereof they have been in immemorial Possession in Exercing all Jurisdiction Civil and Criminal amongst their own Burgâ—sses The Lords before answer having ordained either Partie to adduce Wâ—â—nesses as to the Possession of their Iurisdiction which being closed the Debate was reassumed upon the Towns Right and Possession It was answered for the Pursuer that he and his Authors being Infeft in the said Heretable Office long before the Erection and before the Anuexation of the Abbacie of Culross to the Crown no Right granted thereafter to the Town could prejudge his established Right especially seing in the very Act of Annexation such Bailleries are expresly reserved and declared to be unprejudged And as to the Towns Possession It was but clandestine and not total for the Baillies did still exercise Jurisdiction even upon Burgesses of the Town committing Bloods in the Town and likewise Strangers committing Bloods as is instructed by his Court-books and Witnesses which is sufficient to hinder Prescription It was answered that the Defense stood yet relevant for the granting of the Bailliery could not be exclusive of the granters own Jurisdiction but cumulative and as the Abbots so the King retained Jurisdiction and might dissolve a part of the Barony which thereby ceased to be within the Jurisdiction of the Bailly of the Baronyâ— and might Erect the same in a Burgh Royall as he has done in the same way as the King after granting an Heretable Sheriff-ship may yet Erect a Barony within the same which may exclude the the Sheriffs if the Baron use diligence The Lords found that the Erection of the Burgh Royall being after the Constitution of the Baillerie could not exclude the same of its Jurisdiction and Casuality unless it had been by Possession sufficient to make prescription and that the Case was not alike as if the Barony of a Baron were constitute within an Heretable Sheriff-ship because the Casualities of the Heretable Sheriff-ship belonged to the King himself and could be only understood without prejudice of subordinat Jurisdiction of Baronies which were
ordinar and known but here the Casualities belonging to the Bailliâ— proprio jure the Constitution of the Burgh could not prejudge them even albeit the Lord of the Regalities consent was thereto produced seing the Ballie consented not but as to the Possession and Prescription whether the Town could Prescribe the Right of the Civil Jurisdiction albeit the Baillie exercised the Criminal Jurisdiction of Bloods or whether the Town could Prescribe their Right of a part of the Civil Jurisdiction in so far as concerned Trade The Lords superceeded to give answer while the first of Iune and that they had time to consider the Depositions of the Witnesses fullie Creditors of Lord Gray contra Lord Gray Eodem die CErtain Creditors of the Master of Grayes being Infeft in Annualrent out of certain of his Lands pursues Poynding of the Ground It was alleadged for the Lord Gray his Son absolvitor because he has Right to an Appryzing and Infeftment of Alexander Milne which is expired and prior to the Pursuers Infeftments It was answered that the Appryzing was satisfied by the Umquhile Master of Gray and a blank Assignation thereto was taken which was amongst the Masters Writs and this Lord filled up his Name after the Masters death this being unquestionably relevant the difficultie was concerning the manner of the Probation The Lords before answer ordained Witnesses ex officio to be examined whereupon the Lord Gray's Brother was examined who acknowledged he saw the blank Assignation by his Brother and Mr. Robert Prestoun being examined and several other Witnesses above all exception and also the Lord Gray himself who acknowledged he got the Assignation blank after his Fathers death but not amongst his Writs and that he gave a Bond therefore Many of the Lords thought that seing by the late Act of Parliament the Appryzing though expyred was Redeemable from him for the Sum he truely payed for it that it were more just and safe that he should be preferred unless the Creditors would purge and satisfie the Sum and that it were a dangerous example to find so important a Writ as this Assignation to be taken away by Witnesses yet the plurality found the Testimonies so pregnant and unquestionable They found the Reply proven thereby and found the Appryzing retired and satisfied by the Debitor and so extinct Earl of Landerdail contra Viscount of Oxenfoord last of February 1666. THE Earl of Lauderdale being Infeft in the Barony of Muslburgh which is a part of the Abbacie of Dumfermling and was Erected into a Temporal Lordship in favour of the Lord Thirlstoun thereafter Chancellourâ— the Lord Lauderdales Grand-fatherâ— in Anno 1587. Before the Act of Annexation wherein the Erection of Musleburgh to the Lord Thirlstoun is expresly excepted Thereafter in Anno 1592. the Queen was Infeft by the King in Liferent in the Abbacie of Dumfermling with the consent of the Lord Thirlstoun as to Musleburgh and his Resignâ—tion as that effect shortly after that same year the King gave the Queen an Heretable and Irredeemable Right of the whole Abbacie of Dumfermling which was Confirmed by a Printed Act of Parliament the Queen lived till the Year 1618. After which the King was served Heir to his Mother in the Abbacie of Dumfermling and Infeft therein being then Prince The King gave an Heretable and Irredeemable Right to the Lord Oxenfoords Authors of the Teynds of Coutsland as a Part of the Lordship of Musleburgh in Anno 1641. And shortly thereafter His Majesty did renew the Earl of Lauderdales Infeftment of the Lordship of Musleburgh with a novodamus Lauderdale being Forefaulted by the Usurpers Swintoun got a Donative of the Lordship of Musleburgh and amongst the rest of the Teyn is of Coutsland and did raise Inhibition and Reduction of their Rights After the Kings Restauration the Earl of Lauderdale obtains his Infeftment Confirmed in Parliament with an express Exception therein that it should not be derogat by the Act salvo jure raises Inhibition of the Teynds and pursues Action of Spuilzie and also of Reduction It was alleadged for the Defender absolvitor because he stands Infeft in the Teynds lybelled by Infeftment granted by the King before the Earl of Lauderdales Infeftment pursued on and by vertue of his Infeftment King Charles the first and Queen Anne his Authors have been in peaceable Possession uninterrupted since the Year of God 1593 And therefore their Right is accomplished and established by Prescription It was answered for the Pursuer that the Defense ought to be Repelled because since the death of Queen Anne who died in Anno 1618. Till the Interruption made by Swintoun by Inhibition and Reduction in Anno 1656. there are not 40â— years run and till the Queens death the Earl of Lauderdales Grand-father could not pursue because he had granted Resignation in her favours for her Liferent contra non valentem agere non currit Prescriptio So Wyves Provisions in their Contract of Marriage Prescribe not from their Date but from the time of their Husbands death all Obligations Prescribe only from the Term of payment and Infeftments and Oblidgements of Relief from the Distresse It was answered for the Defender that this Defense stands still Relevant First because as to any interruption made by Swintoun it cannot be profitable to the Pursuer because he derives no Right from Swintoun And as to the Queens Liferent Infeftment consented to by Thirlstoun the Queen never accepted the same but an Heretable Right from the King that same Year by which Heretable Right only she possest and did all Deeds of Property by entring of Vassalls and granting of Fews which a Liferenter could not do which Heretable Right Thirlstonn could not misken because by a special Printed Act of Parliament it is Confirmed in Parliament and past the great Seal himself being Chancellor It was answered for the Pursuer that the Defense and Duply ought to be Repelled in respect of the Reply because the Confirmation of the Queens Heretable Right in Parliament was salvo jure and he was secured by the Act salvo jure in the same Parliament and that he knew thereof at the passing of the great Seal is but a weak presumption and such knowledge could not prejudge him nor was he in any capacity to pursue upon his own Right for attaining possession seing the Queens Liferent Right and Heretable were both compatible and it was evident the Queen would exclude him by his Consent in the Liferent Right neither can the Queens acceptance be questioned after so long time seing the acceptance of the Liferent was to her advantage and profit before she got the Fee and did exclude Thirlstouns prior Right which would have undoubtedly reduced the Queens Right and was excepted in the General Act of Annexation and would not fall under the Act salvo jure It was also severally alleadged that this Earl of Lauderdales late Right was Confirmed in Parliament 1661. And all other Rights declared void and that the
Ratification should have the force of a publick Law and not be derogat by the Act salvo jure It was answered for the Defender that in Prescriptione longissimi temporis non requiritur tempus utile sed continuum In consideration whereof the time of the said Presciption is made so long and therefore captivity absence reipublicae causa want of Jurisdiction or the like are not respected 2dly Thirlstone valebat agere because he might have Reduced the Queens Infeftment of Fee or declared his own Right of Fee to be effectual after her death And as to the late Act of Parliament albeit it does exclude the Act salvo jure yet that is parte inaudita and upon the impetration of a Party suo periculo but the Parliament have never assumed power to take away the privat Rights of Subjects except upon another or better Right otherwayes no man in Scotland can call any thing his own but a Confirmation in Parliament with such a clause surreptitiously obtained shall take away the Unquestionable Right of any other It was answered for the Pursuer that the Parliament had not incroached upon the just Right of any other but had only restored the Pursuer to his Grand Fathers Right and seing there is no question but that Right was prior and better than the Queens and the Defenders and was in no hazard but as to the point of Prescription that being a rigorous Statute the Parliament might well excuse the Pursuer for not pursuing the King and Queen but rather patiently to abide their pleasure till they were denuded in favours of privat Parties It was answered for the Defender that all our privat Rights especially of Property are founded upon positive Law and there is none stronger then the Right of Prescription and therefore if the Parliament can take that away as to one Person and not generally they may annul the Right of any privat Person whatsomever The Lords were unwilling to decide in the whole points of the Debate but did in the first place consider the Right of the Parties without the Act of Parliament in favours of the Queen or the late Act in favours of the Earl and in the point of Right they repelled the Defense of Prescription in respect of the Duply of Swintouns interruption which they found to accresce to the Pursuer cujus jure utebatur and found that before the Queens death the Prescription could not run in respect of the Queens Infeftment of Liâ—erent consented to by Thirlstoun which would exclude him from any Action for attaining Possession and they found that he was not oblidged to use Declarator or Reduction which might be competent in the Cases of Distress or the Rights of Wifes or any other Right which yet do alwayes exclude Prescription till Action may be founded thereupon that may attain Possession Thomas Millar contra Howison Iune 5. 1666. THomas Millar having pursued the Tennents of one Bailie his Debitor for making forthcoming their Duties arrested in their hands Compears Howison and produces a Disposition and Infeftments from Baillie of the Tenements prior to the Arrestment and craves to be preferred It was answered for Millar that Howisons Disposition was null as being in fraudem Creditorum against the Act of Parliament being granted after the contracting of Millars Debt and albeit the narrative of the Disposition bears causes onerous yet he offered to prove by Howisons Oath that it was not for causes onerous at least equivalent to the worth of the Land which was found relevant and Howison having deponed that his Disposition was granted for a Sum of 300. merks addebted to himself and the Sum of 1600. merks adebted to Iohn Burd for which he was Cautioner for Baillie the Disponer At the advysing of the Cause It was alleadged that the Disposition nor the Disponers Oath could not sufficiently instruct the cause onerous seing the Oath did not bear that there was a price made but only that there was no Reversion nor promise of Redemption granted â— yet the Disposition was truely in Trust which ofttimes is tacit as being the meaning of the Parties and is not expresse by Reversion or Back-bond so that if Baillie or this Arrester would pay these Sums Howison could have no further Interest It was answered that the points referred to Howisons Oath were denyed and that he was not oblidged to keep the Bonds but might destroy them as being satisfied The Lords found that as to Howisons own Bond he needed not instruct the same but as to Burds Bond they found that he ought to instruct it by some adminicles further then his own Oath that the Debt was and was payed by him in respect his Oath bore not a price made and that he was Vncle to Baillie the Disponer Mr. Alexander Nisbit contra Eodem die MR. Alexander Nisbit as Assigney to a Sum pursues the Debitor for payment compears the Arrester who had arrested it in the Debitors hand for a Debt due to him by the Cedent and whereupon he had obtained Decreet before the Sheriff of Berwick It was alleadged for the Assigney that the Decreet was null because the principal Debitor was not called in the Decreet for making forthcoming or at least at that time he lived not within that Jurisdiction It was answered that albeit the Arrester had no more but his naked Arrestment he might compear for his Interest and crave preference to the Assigney whose Intimation was posterior It was answered he could not be pursued hoc ordineâ— because he whose Money was arrested was not yet called viz. The Assigneys Cedent who is the Arresters principal Debitor who if he were called might alleadge that the Debt whereupon the Arrestment proceeded was satisfied which was not competent to the Assigney being jus tertij to him The Lords found the Arrester might compear in this Process without calling his Debitor but they found that the Assigney might either alleadge payment in name of his Cedent or if he craved a time to intimate to his Cedent they would superceed to extract till that time that the Cedent might defend himself Earl of Cassils contra Sir Andrew Agnew Iune 6. 1666. THe Earl of Cassils as Superior of some Lands holden of him by Iohn Gardener obtained Declarator of his Liferent Escheat and that a Gift of the said Liferent granted by the said Earl to the said Iohn was null in so far as it contained a Clause irritant that if Iohn Gardener should give any Right of the Lands to any of the name of Agnew the Gift should be null ipso facto whereupon in anno 1650. The Earl obtained Declarator of the Clause irritant by Iohn Gardeners giving Right to Sir Andrew Agnew and now insists for the Mails and Duties since that Declarator It was alleadged that the said Earl had accepted the Feu Dutie of several Years since the said Declarator and thereby had tacitly past from the Declarator and could not seek both the Feu-dutie and also the whole
Moâ—ison of Darsie and Dam Nicolas Bruce now Lady Braid then his Spouse bearing Annualrent and a Clause stating the Principal Sum after ilk Term as a Stock to bear Annualrent and Termly Penalties in case of failzie This being called in praesentia It was alleadged for Kinghorne that Annual of Annual was a most Usurary Paction rejected by all Law and our Custom and cannot subsist in whatever Terms it be conceived otherwise by the like Paction the Annual of that Annual might bear Annual and so perpetually multiply and if this were Sustained there would never be a Bond hereafter in other Terms It was answered that Bonds of Corroboration stating Annualrents into Principals by Accumulation have ever been allowed and though that be done after the Annualrent is become due making it then to bear Annualrent there is no material difference to make it bear Annualrent by a paction ab ante but not to take Effect till the Annualrent be effectually due It was answered that Custom had allowed the stating of Annualrents after they were due into a Principal because then being presently due they might instantly be Exacted but Law and Custom hath rejected the other Case The Pursuer further alleadged that she being a Widow and this her Liveliehood Annualrent at least should be due for the Annualrents seing she is ready to Depone that she borrowed money to live upon and payed Annualrent therefore or otherwise the Termly Failzies ought to be Sustained The Lords Sustained the Defense and found no Annualrent due of the Annual nor Termly Failzies seing there was no Charge at the Pursuers Instance against this Defender and that he was a Cautioner but modified for all 100. pound of Expences Bell of Belfoord contra L. Rutherfoord Ianuary 27. 1669. BEll of Belfoord being Infeft in an Annualrent by the Deceast Lord Rutherfoord out of certain Lands pursues a poinding of the ground Compearance is made for my Lady Rutherfoord who alleadged she ought to be preferred as being Infeft in an Annualrent of 2000. merks yearly upon her Contract of Marriage before this Pursuer 2dly That she ought to be preferred for an Annualrent of 2000. merks yearly of additional Joynture wherein she stands also Infeft publickly and albeit her Infeftment be posterior to the Pursuers yet his Infeftment being base not cled with Possession before her publick Infeftment she is preferable The Pursuer answered that before the Ladies Infeftment on her additional Jointure he had used a Citation for poinding of the Ground and is now Insisting for a Decreet thereupon which must be drawn back to the Citation and is sufficient to validat the base Infeftment that it be no more from that time forth repute Clandestine Which alleadgance the Lords found Relevant and preferred the Pursuer to the Ladies additional Jointure It was further alleadged for the Lady that she was Served and kenned to a Terce of the Lands in question and must be preferred as to a third part of the profits of the Lands conform to her Infeftment upon her Terce The Pursuer answered that her Service Kenning and Infeftment of Terce are posteriour to his Infeftment of Annualrent and posterior to his Citation foresaid thereupon It was answered for the Lady that her Terce being a Right Constitute by Law by the Death of her Husband albeit it be Served and Kenned after these Acts are but Declaratory of her Right by her Husbands Death and do Constitute her Right not from the date of the Service but from her Husbands Death which is before the Pursuers Citation so that his Infeftment granted by her Husband before his Death not having been cled with Possession in the Husbands Life it remained at his Death as an incompleat Right which cannot exclude her from her Terce It was answered that a base Infeftment is of it self a valid Right although by a special Act of Parliament posterior publick Infeftments are preferred thereto unless the base Infeftment hath been cled with Possession which cannot be extended beyond the Terms of the Act of Parliament and so cannot be extended to a Terce but as the base Infeftment would have been a sufficient Right against the Husband and his Heirs so it must be esteemed as debitum reale affecting the Ground and his Lady can have no more by her Terce then the third of what was free unaffected before his Death The Lords found the base Infeftment sufficient to exclude the Terce pro tanto and that as to the Husbands Heir or Relict it was a sufficient Right Stirling contra Heriot Eodem die Stirling Son to Commissar Stirling pursues for a modification of an Aliment out of the Liferent of Helen Heriot his Fathers Wife as having the Liferent of the whole Estate The Lords Sustained not the Aliment in respect the Defenders Liferent was very mean and the Pursuer was major and keeped a Brewary and she kept one of his Children and that he was not frugi aut bonae famae Robert Brown contra Iohnstoun of Clacherie February 1. 1669. RObert Brown pursues Iohnstoun of Clacherie for payment of 1200. pounds contained in a Bill of Exchange subscribed before two subscribing Witnesses and marked with Clacheries hand there was several other Bills for greater Sums produced marked with the like mark and none compearing for Clacherie The Lords caused Examine the Witnesses insert who Deponed that Clacherie was accustomed so to Subscribe and one of them Deponed that he saw him put to this mark to the Bill in question several others Deponed that they had accepted such Bills in regard of his Custom and had obtained payment from him without any Debate thereupon The question arose to the Lords whether a Sum above an hundred pound could be proven by such a Writ that had only a mark and having demured upon it before till they should try if any such case had been Sustained formerly and none having been found Sustaining any Writ not being Subscribed with the whole Name or at least the Initial Letters of the Debitors whole Name It was offered by some that Clacheries Oath might be taken ex officio or de calumniâ— not simply to refer the Debt to his Oath but whether that truly he set to this mark before these Witnesses but Robert Brown being a dying the Lords would not defer but decided the Case and found that this Writ being a Bill of Exchange among Merchants and Clacheries custom so to grant Bills of greater importance then this being clearly proven and none appearing for him they decerned against him upon the Bill and Testimonies many of the Lords being of different Judgement and that it was of dangerous preparative to encourage Forgerie but it was Sustained only in all the particular Circumstances aforesaid and not to be a general Rule Iohn Boswel contra Town of Kirkaldie Eodem die THe Town of Kirkaldie having given a in Bill to stop the Interlocutor of the 22. of Iuly 1668. of the Process against them and having objected against that
which eleids the presumption of Health by going abroad or whether the going freely on foot having only a Staff in his hand the rest of the way was sufficient to prove that he went abroad in leige poustie The Lords found that the Defuncts going abroad after the Disposition as is before exprest was Relevant to eleid the Reasons of Reduction on Death-bed notwithstanding of the Defuncts being helped up and down Stairs and to and from his Horse and by leading his Bridle and that notwithstanding that he continued Sickly to his Death William Street contra Hume and Bruntfield Iune 9. 1669. William Street Merchant at London having sent down a parcel of Skins to Arthure Lyel his Factor at Edinburgh Lyel Sells the Skins to Hume and Bruntfield and takes the Bond for the price thereof in his own Name payable to himself without mention of Street Lyel being Dead Bankrupt and Street finding that if he should Confirm the value of the Skins as Executor Creditor to Lyel the rest of Lyels Creditors would come in with him and share in this Sum which was the price of his Skins therefore he raised a Declarator against the nearest of kin of Lyel that the sum due by Bruntfield and Hume albeit the Bond was taken in the Name of Lyel yet the same was for streets Goods and to Streets behove and none compearing he obtains Decreet of Declarator to that effect and now he pursues Bruntfield and Hume for payment of the Sum who alleadged they cannot be in tuto to pay to any but these who represent Lyel to whom they were Debitors and therefore the Pursuer must first Confirm as Executor to Lyel and as for the Declarator obtained it was in absence and they not called and whenever the Executors Confirms they cannot exclude them The Pursuer answered that he needed not Confirm as Executor to Lyel because this Debt albeit in the name of Lyel yet was not in bonis of Lyel in so far as it was the price of the Pursuers Skins which were in the Custodyâ— and Management of Lyel but never in his Property but specially by Lyels Missive produced he acknowledges the Receipt of the Skins and that he had Sold them to these Defenders that he was to take Bond for them which is the same Bond and in his Compt-book produced he states himself only Debitor to Street for ten pound Sterling that he had reserved of his Bond and not for the whole Sum which therefore must import that the remainder remainded Streets and yet for the further assurance of the Defenders he offered Caution to warrand them The Defenders answered that the Pursuer having intrusted Lyel with the Skins he had followed Lyels faith and could not quarrel what Lyel had done with any third Party so that Lyel taking the Bond in his own Name did alter the Condition of the Affair and stated himself Debitor to Street and the Merchants Debitors to him and as he might have Received payment from the Merchants and applyed the Sum to his own use so he might Discharge them and this sum might have been Arrested and affected for Lyels Debt and therefore was in bonis of Lyel and behoved to be Confirmed and seing the Defenders cannot be secure they were not obliged to accept of Caution to put themselves to two Actions The Pursuer answered that albeit payment made to Lyel would have been sufficient as being made bona fide yet if Lyel had Discharged without payment his Discharge would not have excluded Street the Pursuer neither would Arrestments for Lyels Debt have excluded him especially the same having been posterior to the Missive produced The Lords Repelled the Defenses and found the same not to be in bonis of Lyel nor to be Confirmable as his Goods but to belong to the Pursuer street and seing Street offered Caution to warrand the Defenders they ordained him to grant the same accordingly Countess of Dundee contra Mr. Iames Birsbin Eodem die THe Countess of Dundee being possest in an Annualrent out of the Maines of Dudhop Anno 1650. and having consented to the Infeftments of other Creditors in the said Mains in Anno 1659. she is provided to ten Chalder of Victual out of the said Mains and to certain other Lands and the provision bears expresly in satisfaction of the Contract of Marriage and any prior Infeftments whereupon she pursues a poinding of the Ground Compearance is made for Mr. Iames Birsbin who produces an Infeftment of an Annualrent in Anno 1648. and offers to prove Possession conform prior to the Ladies Infeftment in Anno 1659 whereupon she how pursues and which Infeftment she has accepted in satisfaction of all that can befall to her by her Husbands Death The Pursuer answered that she was infest in an Annualrent out of the Mains in Anno 1650. which doth exclude Birsbin unless he had attained Possession before that time and albeit this Infeftment in Anno 1659. being in satisfaction c. yet that Right whereby she accepts the same is not in favours of Birsbin but of other Rights to whom the Lady consented and not to Birsbins to which she never consented and therefore it must be limited to be only in so far as concerns these Rights related therein Birsbin answered that be the Motive or Narrative what it would my Lady having simply and absolutely accepted this Infeftment in satisfaction of her former Infeftments the former Infeftments were thereby extinct in the same way as if she had Renunced them simply to my Lord whence there is jus acquisitum to Birsbin deriving Right from my Lord. The Lords having considered the last provision found that albeâ—t the Narrative related to Rights consented to by my Lady yet the Dispositive words were absolute and so did extend to Birsbin It was also alleadged that this last security in so far as it bears to be in satisfaction of all others the acceptance thereof was a Donation betwixt Man and Wife Revockable and my Lady did now recal it It was answered my Lady had Homologat the same after my Lords Death by pursuing now thereupon in which it occurred to the Lords whether my Lady might recal any part of this last provision and make use of it in so far as it quadrat with the former Infeftments or whether she might recal it after she had made use of it after her Husbands Death which not being Debated fully the Lords did not decide therein Evart Loyson contra Laird of Ludquharn and Captain Wilson Iune 15. 1669. CAptain Wilson a Privateer whereof Ludquharn was Owner having taken Evart Loyson and his ship obtained the same to be adjudged Prize by the Admiral as carrying Flax and Hards which were Counterband which Decreet the Strangers Suspend and raised Reduction upon these Reasons that this Ship and Goods belonged to one Clepan in Bruges the King of Spains Subject and was declared Prize upon no other ground but because she carried Tow and Hards which
to the two Nottars to subscribe for him as Cautioner for 1200. merks The said Andrew Hadden the Creditor being then present at the Warrand and Subscription and yet a far greater Sum is filled up in the Bond which he offers to prove by the two Nottars the Witnesses insert and the Communers The Charger answered that he oppones his Bond being a clear liquid Bond in Writ which cannot be taken away by Witnesses The Suspender answered that albeit regularly Writ cannot be taken away by Witnesses yet Fraud or Circumvention or the Terms of Agreement and Communing in Contracts are always probable by the Oaths of the Communers Writer and the Witnesses insert The Lords would not receive the Reason to be proven in the ordinar way by Witnesses but ex officio ordained the Communers Nottars and Witnesses to be Examined that they might consider the clearness and pregnancy of their Testimonies whether this Writ was Read to the Suspender when he gave Warrand to Subscribe and what was Read for the Sum and on what Terms he gave Warrand to Subscribe Mr. Iohn Mcqueen contra Marquess of Douglass and Mr. Peter Pearson January 26. 1670. MR. Iohn Mcqueen having been Minister at Carmichael and Trainsported to Edinburgh he continued to serve the Cure at Carmichael till March 1669 and pursues the Marquess for the half years Stipend 1669. Compearance is made for Mr. Peter Pearson his Successor who alleadged that he is presented in Ianuary to the whole Stipend 1669. and thereby has Right and Mcqueen was Transported before Ianuary 1669. and though he continued to Preach till February or March yet being Transported he was no more Minister and did not Preach till the compleat Sowing or Whitsonday which is the legal Term for half a years Stipend of Transported Ministers It was answered for Mr. Mcqueen that Pearson not being Admitted Minister till August 1669. can have no right to a Term anterior and the Patrons Presentation can give him no right because the Patron has now no power of the vaccand Stipend The Lords preferred Mcqueen seing nothing was alleadged for the Collector of the Vaccand Stipends who it is like might have excluded both for at Whitsonday neither of them was in officio or beneficio Relict of Mr. Patrick Sheâ—ls contra Parochioners of West-Calder Eodem die MR. Patrick Shâ—ils having been Minister of West-Calder he was Suspended by the Synod and Bishop for not coming to the Presbyteries and Synods and the Act Suspended him ab officio and bear that if he did not come to the next Synod they would proceed to Depose him yet he was not Deposed but continued three years in the Possession of the Manse Gleib and Stipend his Wife now pursues for an Ann the next Intrant being admitted within three Moneths after Mr. Patricks Death alleadges she could have no Ann because Mr. Patrick was Suspended ab officio beneficiâ— and produces an Act of the Synod bearing so much and the Relict produces that same Act Extracted and Subscribed by umquhil Mr. George Hay who was Clerk at the time and bears only Suspension ab officio and the Intrants Act is Extracted by the present subsequent Clerk and bears ab officio beneficio The Relict alleadged that the Act produced by her was the only Act intimate to Mr. Patrick and which is Subscribed by the Clerk who was Clerk to the principal Act it self and accordingly Mr. Patrick was in bona fide and did possesse three years after The Lords adhered to that Act and found the Ann due and ordained the other Act to be keeped in retentis that it might be compared with the Register that he might be Cenâ—ured if he Extracted it wrong Lady Towie contra Captain Barclay Eodem die THe Lady Towie insisted in the improbation of a Disposition alleadged granted by the Tutor of Towie whose Estate was provided to Heirs-male but he had Disponed his Estate to the Pursuer his Daughter upon which no Infeftment had followed in his Life And also for improving of a Bond of a hundreth and three thousand pound alleadged granted by the Deceast Laird of Towie both granted in favours of Captain William Barclay In which Improbation because the Writs were not produced a Decreet of Certification holding them as false and feinzied and declaring them to make no Faith was Pronounced and Extracted and thereafter the Pursuer having desired that Alexander Steil and Iohn Ross Witnesses insert in the Disposition and Alexander Ferguson Writer and Witnesses in the Disposition and Witnesse in the Bond should be Examined lest by their Death the means of Improbation should fail in case the Writs were hereafter produced Whereupon the Lords Examined the Witnesses Steil and Râ—ss by their Depositions acknowledged that they being Servants to Captain Barclay he had induced them to Subscribe as Witnesses to a Writ which he had folded up and did not Read to them but they saw that there was no Name as a Subscription thereto at that time but the Captain told them that he would get the Tutor of Towies Subscription thereto and that he had thereafter dealt with them to bide by the Writ as a true Writ and that albeit it bear date at the Barns of Towie the day after the Laird died yet that it was truly Subscribed at the Captains House of Achridie about a Month thereafter Ferguson did Depone that he had Written over the said Disposition and that it was Subscribed at Achridie about a Moneth after Towie died and that he had insert himself Witness therein but had not Subscribed as Witness and that he was insert and Subscribing Witnesse in the said Bond to which he Forged and set to the hand of the Deceast Laird of Towâ—e at the desire of the Captain whose Pupil he had been The other Witness in the Bond was Richard Barclay who appeared not upon the foresaid Disposition Captain Barclay had made Resignation before the Lords of Exchequer and the same had been produced by him and made use of in Processes before the Lords as appeared by the Subscribed Minute by Mr. Alexander Birnie his Advocat acknowledging the getting up of that Disposition from the Clerk which he had produced for Captain Barclays interest and which he had delivered to the Captain immediatly as he had received the same from the Clerk Captain Barclay's Goodson Arnage was also Examined who Depoâ—ed that he had received a Message from the Captain to deal with the Witnesses to come over to Edinburgh and bide by the Writs Captain Barclay himself was also Examined upon Oath and Confronted with the Witnesses but he denyed all the foresaid Points in their Testimonies and Deponed that the said William Steil being his Servant had run away from him and carryed away the said Disposition and Bond and had gone over to the Lady Towie and conspired with her for his destruction The Tutor also being Examined upon Oath acknowledged he had subscribed several Dispositions of the Estate of Towie in favours of
on the Bairns Portion though prior Iuly 22. 1668. Iohnstoun of Shems contra Arnot Vide Children Ianuary 16. 1676. Erskines contra Râ—ynolds A BOND bearing borrowed Money was found not Reduceable upon the Act against Bankrupts but that the Bond it self did sufficiently instruct the borrowing of the Money as the cause onerous Iune 28. 1665. Moâ—teith contra Aâ—derson A Bond was found Heretable as bearing annualrent though it was but 5. per cent in a Bairns Portion Iune 28. 1665. Pâ—tcairn contra Edgar Bonds bearing Annualrent are moveable till the first Term of payment of Annualrent and fall within single Escheat Iune 26. 1668. Dick contra Keir A Bond by a Father to a Son though bearing borrowed Money yet was presumed to be for love and favour and the same with an Appryzing thereupon was Reduced at the instance of anterior Creditors who obtained Decreets after the Bond for Bargains which were proven by Witnesses to have been contracted before the Bond Ianuary 21. 1669. Creditors of Pollock contra Pollock his Son A Bond by a Father to his Son after he was Married and out of his Family payable after the Fathers death was found not Reduceable at the instance of posterior Creditors of the Father by the Act of Parliament 1621. against fraudful Alienations though it were Reduceable upon evidence of Fraud ex jure communi which were appointed to be condescended upon Ibidem A Bond taken by a Father from a Son after Contract of Marriage Vide Contract BARONS Decreets are valide in Vaccance time by their priviledge without dispensation and they are competent to Iudge the Multures due by their Vassals February 14. 1662. Nicolson contra Forbes of Tillicutriâ— A BARONY was found to include a Burgh of Barony as Pâ—rt and Pertinent though not exprest in a donators Infefâ—ment albeit it was exprest in former Infeftments and particulars of less moment were exprest in this Infeftment as comprehended in the Barony Ianuary 15. 1668. Earl of Argile contra Campbel A BASE INFEFTMENT of Annualrent was sound valide against a posterior publick Infeftment because thereupon there was a Decreet of poinding the Ground though it could take no effect for a long time till the entry to the Annualrent which was not till after the Constituents death 26 and 27. of February 1662. Creditors of Kinglass competing A base Infeftment by a Husband to his Wife on her Contract was validate by and preferred upon the Husbands Possession though the Wiâ—es Infeftment was of annualrent and the Husbands of property November 23. 1664. Lady Grangâ— contra Murray where it was found that from the very date it was validate and preferred to any other though prior and base but apprehending Possession upon a Citation before Candlemas it being Ferm Land and a Decreet thereon in March thereafter Two base Infestments of annualrent competing one to a Wiâ—e the other to a Creditor the Wife was preferred being cled with Possession by the Husbands possession which was not found competent to the Creditor though his Infeftment was prior and though he used Inhibition before the next Term after the Wifes Infeftment and alleadged the Husband could have no Possession after the Wifes Infeftment before his diligence which the Lords Repelled because the Husband was in a present current Possession and nor in acquirenda possessione but the Wifes Infeftment was only sustained in prejudice of this Creditor in so far as it had an anterior Cause to his debt The Husbands Possession was also found sufficient to validate the Wifes Infeftment of annualrent though he possessed the property which includes eminenter all other Rights November 23. 1664. inter cosdem An Infeftment of Warrandice Lands being in the same Infeftment with the principal Lands and both holden base was preferred to a posterior publick Infeftment of the same warrandice Lands though cled with long Possession and that upon an action of Mails and Duties upon the Distresse without Reduction Ianuary 9. 1666. Brown contra Scot. A base Infeftment by a Father to a Son reserving the Fathers Liferent was found not validate by the Fathers continuing his Possession but the Fathers Creditors appryzing were preferred to the Donator of the Sons Forefaulture founding upon the Sons Infeftment Iune 14. 1666. Hume contra Hume A base Infeftment of annualrent was preferred to a posterior appryzing and charge before the Term at which the annualrent begane to be payable in respect the annualrenter was in Possession of the Land out of which the annualrent was payable intus habuit viz. his annualrent proportionally from the date of his Right Iune 30. 1666. Stevinson contra Dobbie A base Infeftment by a Father to a Son Reserving the Fathers Liferent was found not validate by the Fathers possession albeit the Father disponed the Lands reserved to a third Party who did possess but the Disposition was of the Fee and no mention of the Liferent reserved December 18. 1666. Lord Newbeath contra Dumbar of Burgy A base Infeftment was excluded by the Liferent Escheat of the granter albeit the base Infeftment was before the Rebellion seing it was not cled with Possession in cursu rebellionis within year and day February 21. 1667. Miln contra Clerkinson A base Infeftment by a man to his Wife was preferred to a posterior publick Infeftment albeit the base Infeftment was not cled with Possession of the Husband himself but by others deriving Right of Wodset or other Temporary Right from the Husband or his authors which was compted as the Husbands Possession to validate the Wifes base Infeftment Iuly 18. 1667. Lady Burgy contra Strachen A base Infeftment of annualrent was found to be validate by receipt of a part though far within a Terms annualrent and not relative to the Infeftment but to the Bond whereupon it followed and though there was no annâ—alrent due before the Infeftment yet seing the Receipt bear in part of payment of bygone annualrents the Annualrenter was allowed to ascribe it to the annualrents due after the Infeftment to exclude an Infeftment on an Appryzing which appryzing was led before the Receipt but the Infeftment thereupon was after and the Receipt was proven by an Apocha under the Debitors hand Iuly 23. 1667. Hume contra Hume and the Tennents of Kello A base Infeftment of annualrent on a Bond bearing 3000. merks of borrowed Money and 3000. merks of Portion the one half of the whole Sum and annualâ—ents thereof was Suspended till the Fathers death Yet payment of the annualrent of the other half not suspended was found sufficient to validate the whole Infeftment and to prefer it to a posterior publick Infeftment February 5. 1668. Keir contra Keir A base Infeftment in warrandice granted by a Husband to his Wife holden of himself ex intervallo after the principal Infeftment was found valide against a posterior publick Infeâ—tment of the â—ame warrandice Lands as being cled with the Husbands Possession in the principal Lands and that these needed no
Roxburgh DONATAR of Forefaulture obtaining Decreet of Parliament upon fewer dayes citation then are required by Law Reducing an Infeftment on this Ground that it is holden of the Forefault person base un-confirmed and so excluded by the Forefaulture and not upon the five years possession of the Forefault person as heretable Possessor The Lords Sustained the Decreet February 22. 1665. Marquess of Huntly contra Gordoun of Lesmore A Donatar of single Escheat though excluded by the diligence of the Creditors of the Rebel before declarator upon debts before Rebellion was found not to extend to prefer an appryzing of a Wifes Liferent led against her Husband as having right thereto jure mariti in prejudice of the Donatar of the Husbands single Escheat though the Appryzing was before Declarator for a debt before Rebellion seing the Liferent had tractum futuri temporis and is not as Moveable Sums Iuly 18. 1668. Earl of Dumfreis contra Smart DOVBLE POINDING being raised in Name of Tennents by one of the Parties competing the same was sustained though the Tennents did disclaim the same and that the other party was their present Master his possession being but of late and controverted it was also sustained though there was no particular duties libelled but in general to be answered of the Mails and Duties as is ordinary in Decreets conform Iuly 14. 1665. Earl of Argile contra Dinloch and Rara A Double poynding calling two Ministers and preferring one the other being absent was found not irreduceablâ— by the Act of Parliament anent double poindings seing the Decreet was only general without expressing the Teinds in question and so was only found valide as to what was uplifted but not in time coming without having a Right Iune 15. 1667. Gray contra IN DVBIISâ— interpretatio facienda contra proferentem qui poâ—uit sibi legeâ—â— dixisse clarius Iuly 29. 1665. Dowglas contra Cowan EIECTION vide Clause in a Tack December 19. 1661. Dewar contra Countess of Murray Ejection was not sustained at the Instance of an Heretor by the Tennents ceding the Possession to a Stranger seing the Tennent pursued not and that Tennent was not in natural possession but both were to compet for the duties that party having given an obligement to cede his Right December 21. 1661. Montgomry contra Lady Kirkcudbright Ejection at the instance of Heirs infants who had an old Infeftment but were not Infeft themselves was Sustained for re-possessing albeit the Defender obtained Decreet of removing against their Mother and entered thereby though the Decreet bear to remove her self â—airns Servants c. The Pursuer being then in her Family February 19. 1665. Scots contra Earl of Hume Ejection was sustained upon putting the Pursuer out of his House and Land Naturally possessed by him though the Ejecter obtained Improbation against the Pursuer and thereupon Removing seing he entered not legally by Letters of Possession But this was not extended to the Lands possest by Tennents who were induced to take Right from the Ejecter to give violent profits of these Lands Iuly 25. 1668. Campbel contra Laird of Glenureâ—y ERECTION granted by the King erecting Kirk lands into a Temporal Lordship was found not to be habilis modus while the same was not vacant but in the hands of a Commendator albeit he was dishabilitat to brook any Estate by his Fathers Forefaâ—ture at the time of the erection seing his dishabilitation was thereafter rescinded in Parliament because he was no ways accessory to his Fathers crime whereupon his Temporal Provision was validate and the erection medio tâ—mpore was postponed to a posterior erection to the Commendator himself upon his own dimission February 24 1666. Sinclar contra Laird of Wedderburn ESCHEAT single was found to reach a sum due as the Liquidation of an obligement not to alienate Lands which was found moveable quo ad fiscum albeit it came in the place of the Right Heretable which would have belonged to the Heir February 4. 1663. Laird of Philorth contra Lord Frazer An Escheat gifted by the King was excluded by a Creditor who arrested during the Rebels life and pursued to make forthcoming after his death he having none to represent him in mobilibus dying at the Horn and so needed no Decreet establishing the debt in one representing the Defunct and calling the Representatives in the action for making forthcoming albeit the Arrestment was laid on after the Rebellion but before declarator and for a debt contracted before the Rebellion February 19. 1667. Glen contra Hume Escheat was found to carry a Bond bearing annualrent the Rebellion â—alling before the first Term of payment of the annualrent Iune 26. 1666. Dick contra Ker. Vide Donator of Escheat Escheat was not burdened with debts contracted after Rebellion February 24. 1669. Countes of Dundâ—e contra Straâ—town Vide Gift of Escheat AN EXECVTOR pursuing a debitor of the Defuncts was not excluded by Compensation because that debitor had taken Assignation from the Defuncts Creditor after the Defuncts death seing thereby the Defuncts debitor might prefer one of the Defuncts Creditors to another which neither a Debitor nor Executor can do but according to their diligence February 14. 1662. Children of Mouswal contra Lowry of Maxwelstoun In a Competition of Executry of Defuncts amongst their Creditors all who do diligence within six Moneths of the defuncts death by Confirming themselves Executors Creditors or intenting any Action against the Executor or Intromettor should come in pari passu by Act of Sederunt February 28. 1662. An Executor was found lyable to pay a Creditor of the defuncts albeit it was the price of Land sold to the defunct by a Minute without restricting the debitor to the Heir who would only get the disposition or causing the Creditor dispone the Land to the Executor in lieu of the Moveables but reserving to the Executor to seek relief of the Heir as accords Iuly 1. 1662. Baillie contra Hendrison Executors were found lyable for an Annual payment for years after the defuncts death February 5. 1663. Hill contra Maxwel In the Executry a Child dying before Confirmation of the Mothers third the Father being alive was found not to transmit to the Father as nearest Agâ—at but to the Mothers brother and that it was not in the case of the Legitim from a Father which is Transmissible without any Confirmation or adition to the Succession February 17. 1663. Forsyth contra Paâ—oun Executry was found bipartite where there was but one Child which was Forisfamiliat and provided without alleadging in satisfaction of the Bairns part seing here the Child offered not to confer February 18. 1663. Dumbar of Hemprigs contra Frazer An Executors proper Creditor competing with a Creditor of the Defuncts both on Arrestments of a part of the Defuncts Inventary the Defuncts Creditor was preferred to the Executors doing more diligence especially before this Sum was established in the Executors person by Decreet Iuly 8. 1664. Veâ—ch contra Lord
to be ignorant of the Terms of her Infeftment November 14. 1665. Skeen and her Spouse contra Ramsay Homologation of an Infeftment bearing in satisfaction c. was sound not to be inferred by possessing the Lands seing the Possessor had another Title as Heir apparent to persons who dyed Infeft therein unless it were instructed that the possession was attained by Processe upon the Infeftment in satisfaction December 12. 1665. Barns contra Young and her Spouse Homologation of a Feuars Right and passing from a Declarator against the same upon a clause irritant was found not to be inferred by acceptance of two years Feu-duties after the Declarator except as to these two years that more duty could not be demanded therefore Iune 6. 1666 Earl of Cassils contra Agnew Homologation of a Bond granted by a Minor without consent of his Father as lawful Administrator was found not inferred by payment of Annualrent by him after his Majority especially not being of his own Money nor by taking a Discharge of the Annualrent to the Principal and himself as Cautioner February 14. 1668. Mckenzie contra Fairholm Here the Discharge related the Bond both as to Principal and Cautioner Homologation of a Minors Bond was not inferred by pursuing for his relief after his Majority but that in case he were not liberate by that mean he might return to his Reduction upon Minority February 20. 1668. Farquhar of Toâ—ley contra Gordoun Homologation of a Tack of Teinds which was null as wanting the consent of the Patron was not found inferred by the Ministers receiving the duty conform to the Tack before Reduction thereof February 27. 1668. Chalmers contra Wood of Balbegno Homologation of a Decreet was not inferred by giving Bond of borrowed Money for the like sum and taking a Discharge of the Decreet seing it was no voluntary deed but the Debitor was then under Caption in the Messengers hands upon the Decreet neither a Transaction if the Bond contained all the sum in the Decreet unless abatement had been gotten Iuly 3. 1668. Row contra Hoâ—stoun Homologation was not inferred by a Husbands Discharge of Annualrent as Tutor to his Wifes Child to infer the Child had right to the Annualrent whereas by the Bond it self the Wife was Liferenter Ianuary 18. 1670. Doctor Balfour and his Spouse contra Wood. Homologation of a Decreet of consent containing a Transaction of parties at the Bar without any Subscription was inferred by a simple offer of a Disposition conform to the said Transaction be that party who quarrelled the Decreet as without Warrand but was not inferred by consignation of the Disposition for obtaining a Suspension upon obedience to be delivered up if the Lords saw cause February 4. 1671. Lowrie contra Gibson Homologation of a Contract of a Minor having Curators without their consent was not inferred by payment of a years Annualrent of the sum contained in the Contract being made â—o an indigent Sister who had no other provision but homologation was inferred by a Decreet of Registration of the Contract at the instance of the Party none quarrelling the same after his Majority though there was neither Charge nor Execution used thereon and in the Decreet of Registration there was neither Protestation nor Reservation that the same might be quarrelled in any point Iune 2â— 1671 Hume contra Lord Iustice Clerk Homologation of a Testament subscribed by a Wife at the desire of her Husband near his death was not inâ—erred by her Confirming the Testament under Protestation not to prejudge her own Right though she might have attained her interest in the Moveables by Confirming her self Executrix Creditrix Iuly 12. 1671. Murray contra Murray HORNING granted Summarly upon the late Iudges Act at the instance of heirs or Executors confirmed was found to be â—ull upon the late Act of Parliament declaring their ludiâ—â—â—â— proceedings to be quarrellable seing thereâ— was no â—â—justice in the matter but the Lords gave the Suspenders such time for their Defenses as in an ordinary Action Ianuary 1. 1662. Barnes contra Laird of Applegirth Horning doth not affect the Rebels Moveables by the Act 1592 but that the Rebel may effectually deliver them to one who had Disposition of them before the horning Iuly 9. 1662. Bower contra Barclay and Iohnstoun Horning was not found null by payment before denunciation to be proven by the Creditors Oath or holograph Discharges but by the Denuncers Oath of Verity February 10. 1663. Montgomery contra Montgomery and Lawder Horning granted against the Magisâ—rates of a Town upon the Act of their Council obliging to pay a Debt upon a Bill without Signet though there was no Process whereon the Act proceeded or Clause of Registration therein February 19. 1663. Lady Swintoun contra Magistrates oâ— Edinburgh Horning was sustained though on a Charge of six dayes beyond Dee contrary to the Act of Parliament 1580. â—n respecâ— it proceeded on consent of parties upon a clause of Registration and since that Act such hornings had never been quarrelled December 16. 1664. Laird of Phillorth contra Forbâ—s of Asâ—oun and the Lord Frazer A HVSBAND was found lyable to his Wifes debt though not established against him during the Marriage in so far as might be extended to the benefite of her Lifâ—rent Duty resting after the Marriage dissolved which could not belong to the Husband but with the burden of her debt February 1. 1662. Cunninghame contra Dalmahoy A Husband was found lyable for his interest in Moveables intrometted with by his Wife of her first Husbands albeit there was an interveening Husband who was not found to be first discust but reserving to the Defender to pursue his heirs as accords February 18. 1663. Dumbar or Hemprigs contra Lord Frazer Vide interdiction February 27. 1663. Laird of Milntoun contra Lady Milntoun A Husband was assoilzied from his Wifes debt albeit Litiscontestation was past seing she was dead and albeit there was an Interlocutor ordaining him to give Bond to pay what his Lady should be found due Iuly 11. 1664. Inter eosdem A Husband being pursued to remove from a Tenement which he possessed jure marâ—ti no Process was sustained till the Wife was cited Iuly 14. 1665. Iohnstoun of Sheeâ—s contra Brown A Husband Confirming his Wifes Testament by giving up his own Moveables and Debt though he made Faith upon the Inventary yet was not excluded from debarring the Wifes Legatars upon another debt then forgotten though not old December 7. 1665. Anderson contra Cunninghame But he being lately charged on a debt before the confirmation it was not allowed as forgotten Iune 5. 1666. Inter eosdem A Husbane was not found lyable for his Wifes debt jure Mariti after her death though in her life there was Decreet against her and him as Husband seing there was no Execution thereon in her life December 23. 1665. Dam Rachel Burnet contra Lepers A Husband and Wife were not found lyable as lucrative Successors for a competent Tocher
Children and Creditors of Bryson OATH IN LITE â— was admitted for proving of Ware in a Pack given in custody where the keeper opened the same though he made Inventary before Witnesses by a Baillies Warrant Ianuary 3. 1667. Packman contra Bran. OATH QVALIFIED was not sustained importing a compensation yet the â—ame was admitted to be proven as an Exception at advising of the cause December 9. 1664. Lermont contra Râ—ssel AN OBLIGATION by three persons to cause a Minor releave a sum not bearing conjunctly and severally was found not to oblige every one in solidum as being for an indivisible Fact but resulting in a divisible sum Iuly 16. 1669. Dennistoun contra Semple of Fulwood OFFER of the remander of a Sum not being special and not being Consigned was found not to purge a Failzie December 19. 1661. Deuar contra Countess of Murray Offer conditional to pay a suâ— for a Mother on condition it were at such a time and place and were made known whether or not it were accepted was found not obligatory after the Mothers death unless the condition had been fulfilled then 〈◊〉 Iune 24. 1664. Allan contra Colner Offer of Caution to a Wodsetter that he ought to quite possession or restrict to the Annualrent was sustained though made at the parties dwelling House when he was out of the Countrey seing the Act of Parliament did not require that offer to be by Instrument and though the instrument of offer did not bear a Procuratory to him that made the offer the said procuratory being now produced Iune 16. 1671. Lord Loviâ— contra Lord Mcdonald THE OFFICE of a Commissar Clerk was found noâ— to be annulled by his absence for a time out of the Countrey and being denunced sine crimine February 6. 1666 Archbishop of Glasgow contra Logan An Office of a common Servant viz. a Town Clerk being given ad vitam was found to imply a tacite condition to be also ad culpam and that such a fault did resolve the same as was of knowledge and consequence February 14. 1665. Town of Edinburgh contra Thomson OVERSEâ—RS were found lyable for nothing if they intrometted not Ianuary 10. 1665. Swintoun contra Norman PART AND PERTINENT of Lands disponed by a Minute was found to extend to a common Paâ—â—urage in a Muire possessed as pertinent of the Land in the Bargain and that the Writes upon the extension of the Minute ought to bear the â—ame expresly February 14 1668. Borthwick contra Lord Borthwick Part and pertinent cum pascuis pasturn in a Charter given by the King to the Feuars of his Property was found to carry common pasturage in the Muire of the Barony which being now possessed 40. years by the Feuars of the Barony is presumed to have been so at the time of the Charter being past memory and that interruptions of any other Right exclusive of this common pasturage was sufficient to preserve the same February 15 166â— Laird of Haining contra Towâ— of Selkirk â—art and pertinent was not excluded albeit an alleadgeance was proponed on an old Seâ—sine of the Lands in question as being separatum tenementum the Seasine being â—ound null and no Title for Prescription February 15. 1671. Earl of Argile contra Laird of Mcnauchtoun ALL PARTIES HAVING INTEREST not necessary to be cited at the Mâ—râ—at Cross in the Declarator of the Expyring of a Feu ob non solutum 〈◊〉 though the Summons bear warrand for the citation December 1. 1664. Eaâ—l of Sâ—therland contra Gordoun PARIOIDE doth not infer Treason as against the Act of Parliament against murder under Trust which is meaned by paction in reâ—pect of the special Act of Parliament against Paricide which doth not exclude the Paricides Collaterals but him and his descendents from the succession of the slain which therefore cannot belong to the Fisk Ianuary 22. 1663. Zeaman contra Oliphant PASSING FROM A REASON of Suspension pro loco tempore was found not to hinder the proponing of the same against that Decreet and against an Appryzing thereon the matter being yet illiquid and a singular Successor in the Appryzing Iune 17. 1664. Laird of Tulliâ—llan contra 〈◊〉 and Braâ—foord Passing from a Reason of Compensation and taking up a Writ for instructing thereof was admitted before Extracting of a Decreet though the Writ was long in the Chargers hand not being judicially given up to him and that another emergent exception might now be admitted Iuly 14. 1664. Lord Balmerino contra the Creditors of Dick. PAYMENT made before the hand was found Relevant against a singular Successor the Kings Donaâ—ar of Forefaâ—lture because it was but of one Term and so accustomed by the Baroâ—y to pay at the Entry and be free at the â—sh Ianuary 7. 1662. Earl of Laudâ—â—dail contra Tennents of Swintoun Payment made bâ—na fide to Baiâ—ns of a Sum by a Disponer in â—avours of these Bairns was sustained though after Reduction raised unless a Reason had been Libelled against that which was ordained to be payed to Bairns and shown before payment Iuly 14. 1662. Mâ—ntgomerie of Mackâ—ichill contra Wallace Payment made bona fide to a Procurator was thought to be Relevant though the Procuratory should be improven if therein there did appear no ground suspition to have put the Debitor in maâ—â— fide February 1. 166â— Elphingstoun of Selms contra Lord Rollo and Laird of Niddrie Payment made by Heretors to Ministers of their Stipends during the time they Preached and before any Process against them was found to liberate the Heretors notwithstanding they were outed by the Act of Parliament anent these Ministeâ—s who entered since the year 1649 and had not gotten Presentation and Collation whereunto the Heretors â—eâ—e not obliged tâ— inquire seing the Ministers were suffered to Preach without challenge February 10. 1666. Collector of the vacant Stipends contra the Heretors of Mayâ—ole and Giâ—van Payment made bâ—na fide was found not to extend to payment made by a Tennent before the time nor to a Sub-Tenent to the Tennent before the Term February 5. 1667. Lady Traquair contra Howaâ—son Payment made of a Decreet by giving Bond of borrowed money and taking Discharges of the Decreet was found no Homologaâ—ion or Transaction but that after the party might quarrel both Decreet and Bond in consequence unless abatement were gotten upon Transaction of the Sum in the Decreet seing it was not voluntarly done but upon Caption Iâ—ly 3. 1668. Rew contra Houstoun Payment of the Rent of a Shop was sustained being a Taâ—k set by a Father to a Tennent for the annualrent of a sum though the Father had given a Right to his Son reserving his own Liferent seing he set the Tack as Feear and though the Son after his death warned only by Chalking the Door without any other intimation the Tacks-man was Liberate of the Rent for his Annualrent as bonae fidei possessor by his Tack till he was cited on the Sons Right February 16. 1669.
Bargain or to necessitat her to quite the same and give only a Wodset seing the Clause gives her power both to Sell and Affect and does not limit her to either of them The Lords Repelled the Defenses aâ—d declared that the Lady had warrantably Sold these Lands and that the principal Sums being so considerable although the Rental had been more they were sufficient and found that the Clause laid no necessity upon her to exhaust the Moveables and that she might thereby Wodset or Sell at her pleasure Iames Deanes contra Alexander Bothwel February 5. 1669. ALexander Bothwel of Glencorsse being conveened before the Commissars of Edinburgh for Slandering Iames Deanes Procurator before the Commissars in calling him a false knave publickly in the Parliament House and at the Crosse the samine being proven by Witnesses he was Decerned to stand at the Kirk Door of Glencorsse where both Parties dwelt and acknowledge his Fault and to pay 100. pound to the Poor and 100. pound to the Party Bothwel Suspends on these Reasons first That the Commissars could not ordain him to stand at an Congregation which is an Ecclesiastical Censure 2dly That they could not also Fyne him to the Poor nor Decern any thing to the Party but the Expences of Plae seing there was no other Damnage Lybelled nor proven 3dly That the Witnesses were not habile being the Pursuers own Servants The Charger opponed the Decreet wherein the Suspender was compearing and objected nothing against the hability of the Witnesses then and therefore cannot now quarrel their Testimonies and that it was most proper for the Commissars to cognosce upon Slander or Defamation neither was his standing in order to Repentance but in order to restoring the party to his Fame The Lords Repelled the Reasons and Sustained the Decreet in all Points Cleiland contra Stevinson Eodem die William Cleiland Charges Iohn Stevinson upon a Bond of 400. Merks bearing Annualrent he Suspends on this Reason that the Charger was owing him more for Victual being his Tennent which was now liquidat before this time but after the Date of this Bond and craved compensation thereupon not only from the Date of the liquidation but from the time the Victualrent was due Which the Lords Sustained Rule contra Rule February 6. 1669. MArgaret Rule having made a Consignation of certain Bonds and in general of all other Rights with a Disposition of all her Goods to Umquhile Robert Rule her Brother who having named Mr. David Rule his Executor and universal Legator did upon his Death-bed acknowledge that his Sisters Disposition was in trust to her own behove granted upon that consideration that she being a Bastard unless she Disponed in her leige poustie her Means would be Confiscat by her Bastardy she thereupon pursues the said Mr. David Rule to deliver back her Assignation with her own Writs The Defender alleadged the Lybel was no way Relevant there being nothing Libelled but the Defuncts acknowledgement of a Trust upon Death-bed and that offered to be proven by Witnesses only but First The Trust behoved to be declared by a Declarator and not thus by an Exhibition 2dly Trust is only probabable scripto vel juramento being a matter of so great importance 3dly Some of the Rights Assigned and Disponed are Heretable and nothing done upon Death-bed can prejudge the Defuncts Heir thereof 4thly An extrajudicial Confession without Writ albeit it were acknowledged hath no effect for it cannot be known quo animo such words might have been exprest The Pursuer answered that the Trust might be very well Lybelled with the Exhibition and albeit the Defuncts Confession would not alone be sufficient to prejudge his Heir yet it may very well stand as an evidence of Trust which cannot be astricted to probation by Witnesses but hath ever been found probable by other evidences especially where the Person trusted is Dead and the Pursuer condescends upon these evidences and adminicles of Trust. First Communis fama 2dly The Assignation and Disposition bears no Reservation of the Disponers Liferent and yet she continued still in Possession and her Brother whom she Entrusted never medled which he would not have done if the Disposition had been for a Cause Onerous or to his own behove 3dly He did solemnly in presence of Witnesses above exception acknowledge the Trust on his Death-bed The Lords Sustained the Summons and would not astrict the Pursuer to prove by Write or Oath of Party but ordained Witnesses to be Examined ex officio anent the evidences and adminicles condescended on by the Pursuer Black contra Dawid French February 9. 1669. THe Lands of Miln-burn being holden Waird of the Dutchess of Hamiltoun after Miln burns Death the Duke and Dutchess grants a Gift of the Waird to Mr. â—oâ—ert Black who pursued for Mails and Duties and likewise David French having Appryzed from Miln burn and having Charged the Dutchess before Miln-burns Death to Receive him he pursues the Tennents for Mails and Duties who Suspend upon double Poynding In the Competition it was alleadged for the Appryzer First That his Appryzing being a Judicial Sentence did Denude Miln-burn the Vassal in the same way as if Miln-burn had Resigned in the Dukes Hands in favours of David French after which Miln burn was totally Divested and no Casualty could befall to the Superior by his Death Ita est that Law hath stated a Decreet of Appryzing in the same Case as an Resignation accepted for though the Vassal against whom the Appryzing was led should Die the Appryzer will summarly upon a Charge obtain himself Infeft so that the former Vassal was totally Denuded 2dly Here not only there is Appryzing but a Charge against the Superior which fictione juris is in all points as if the Appryzer were actually Infeft and therefore the Appryzer who first Charges albeit he inâ—iâ—t not to use any further Diligence is ever preferred to all other Appryzers Infeft after It was answered for Black the Donator that he ought to be preferred because the Superior who gave his Giâ—t could not want a Vassal nor loss the Casualty of his Superiority without his own fault but the Appryzer did not become Vassal neither by the Appryzing nor by the Charge nor was it ever found that the Liferent or Waird of an Appryzer fell unless he had been actually Infeft and it would be of very great disadvantage to Creditors if the naked Charge should make their VVaird to fall which they may pass from at their pleasure therefore seing the Appryzer could not be Vassal the former Vassal behoved to remain Vassal and seing the Superior could not have a Waird by the Appryzers Death he behoved to have it by the former Vassels Death and albeit the Charge be â—qulparat to an Infeftment as to the Competition of Appryzers whom the Superior may not prefer but according to their Diligences yet it is not holden as an Infeftment to any other Case for thereupon the Appryzer cannot remove the