truely owand and payed by the Relict after her Husbands decease As to the second Point there is no necessity in Law for Executors or Tutorâ— to have Sentence unlesse it be in Cases of Competition to secure themselves against other Creditors pursuing afterwards or Cases dubious where the Probation is not clear but to pay a clear Debt without burdening Pupils with unnecessary expenses of Law against which the Pupils can now alleadge nothing wherein they were prejudged by voluntar payment such payments were never Repelled Especially in the Case of a Woman paying so soon after her Husbands death nor can it be presumed a Donation because Donations are never presumed but must be clearly proven and it is very ordinar to those who have Interest to pay the Debts and Confirm afterwards The Lords considering the whole Circumstances found the Article not to be allowed a beâ—t they were clear that the Debt was true and really payed by the Executrix yet seeing she payed not being then Executrix nor Tutrix and cancelled the Bond without taking Assignation they thought she could not distresse her Children with it but that it was a Donation in their favour Dame Elizabeth Flemming contra Iohn â—ibson and Flemming November 19. 1661. INter eosdem There was another Article of the said accompt whereby the said Dame Elizabeth Flemming having lent out a sum of money in the Name of Malâ—ome and Andrew Flemming's two of her Bairns she craved that the said Sum should be taken in part of payment of the Portions of the whole Bairns or at least in so far as was more nor the Portions of these two Bairnes might be declared to belong to her self It was answered for the Bairns that this Bond was a Donation by the Mother out of her own means in favours of her Children and could not be imputed as a part of their means because First The Bond did bear the Money to be lent by her in her Childrens name and not in her own Neither did it bear to be as a part of the Bairns means nor in satisfaction thereof as she had specially taken other Bonds in these same Bairns names and so presumed consideratly to gift the Sum to these two Bairns of whom one was a pocthmus Child born eight moneths after his Fathers Death and so was not thought upon by his Father nor provided with Legacies as the rest were Secondly The Tenor of the Bond bears expresly the Sum to be payable to the Mother in Liferent and one of the Children is substitute Heir to another in case they had not Children of their own Whereas another would have fallen Heir of Lyne to them viz. An intervenient Brother and to them both the Mother her self and her Heirs were substitute The Pursuer answered That supposing this were a Donation yet it being a free gift the mother might do it upon what Terms and Conditions and what way she pleased Ita est by the Tenor of the Bond. It is provided that she shall uplift the Sum during her Life and the Children after her decease by which Clause she is more nor a naked Life-renter and seeing this Clause must be interpret cum effectu the only meaning of it can be That during her own Lifetime she might uplift the Sum and dispose of it at her pleasure and so evacuat the fee in her Childrens Persons seeing there is nothing to oblidge her to re-imploy it for the Bairns use if she should once uplift it it as when a Father Infeft his Son in his Lands reserving his own Liferent with power to Dispone during his own life there the Father is Liferenter yet by that Reservation he may annull and evacuat the Sons Fee even so here For which two Practicks of Dury was adduced that a Father providing a Sum to himself and his Wife and the longest liver of them two and failzing of them by Decease to his Son the Son being Infeft in Fee and in the other Practick the Father being expresly infeft in an Annualrent for his Lifetime Yet the Lords found that the Father during his lifetime might uplift the sum and Dispose of it at his pleasure The Lords found by the Tenor of the Bond that the Mother had Constitute her self expresly Liferenter and the Children Feears And that the power to Charge for the Money did bear nothing of a power to her to Dispose of it but was only the ordinar Reservation adjected after the Clause of Annualrent in these words but prejudice of the said Annualrent to her during her life and after her Decease to â—he Bairns to uplist the money and so that albeit she was not expresly oblieged to re-imploy it yet she Constituting her self Liferenter without a power to Dispose of the Fee did sufficiently obliege her to re-imploy the sum And as to the Practicks the case clearly differed in this that there the Father and Mother were not Constitute Liferenters in the sum though the Father was mentioned Liferenter of an Annualrent accessory to the sum But the Clause being to the Father and Mother and after their Decease to the Son It was clear by the common Practicks that the Son was not Feear but Heir Substitute so that the Father was Feear and might Dispose at his pleasure November 20. 1661. In the foresaid Cause It was further alleadged for the Tutrix that the Bond in question could not be accounted a Donation notwithstanding the Reasons before adduced in so far as she was Debitor to the saids two Bairns for their Portion quia debitor non presumitur donare and therefore Provisions granted by Husbands to their Wives albeit they mention not the Contract of Marriage but love and favour And so in the Terms of a Donation yet it is alwayes interpret to be in satisfaction of a prior obliegement in the Contract of Marriage and not that both the posterior and former Provision are due to the Wife It was answered for the Bairns that though Donation be not presumed yet when by the Nature of the Deed done it appeareth to be animo donandi I it is truly such albeit it bear not the name of a Donation especially in this case Which Law excepteth from that general Rule that Parents bestowing sums for the use of their Bairns from their natural affection are alwayes presumed to gift and not to satisfie any former Provision unless it were so exprest Upon which ground an Infeftment granted by a Father to his Son though but a Bastard Redeemable upon a sum of Money was not found in satisfaction of a former Bond granted by him to that natural Son as is observed by Dury upon the 24. of Iuly 1623. Stuart contra Fleming But here not only is this Bond not in satisfaction of the former Portion but bears a Clause of a Liferent and of a return to the Mother which are incompatible with an intention of satisfaction The Lords found the Bond to be in satisfaction of the Bairns Portions pro tanto
Disposition in which there was an expresse Reservation of the Ladyes Liferent so that the Back-bond could import no more then securing of that Liferent The Pursuer answered these words conform to the Disposition were set upon the Margin of the Tickit which was all written by the Defenders hand and might have been added ex post facto 2. The Tickit behoved to import more then the Liferent because the Liferent was fullie and clearly reserved and oftimes repeated in the Disposition so that Clause had been frustrat Thirdly The oblidgment to deliver the Back-bond to the Ladies Husband after her Death could not be understood to be only in relation to her Liferent which and the Husbands interest should cease by her Death The Lords found the Tickit sufficient to instruct Trust but because the Terms of the Trust were not clear They before answer in Relation to the Probation of the Terms thereof Ordain the Parties to Compt and Reckon upon all Sums due by the Lady to the Defender in contemplation of the Trust that the same might be allowed and satisfied to the Defender before he be denuded Iames Slumond contra Wood of Grange Eodem die JAmes Slumond having charged Iames Wood of Grange to pay a Sum wherein he was Cautioner for the Laird of Balcaskie to Williiam Smith merchant in Edinburgh who constitute Richard Potter Assigny who transferred the same to the said Iames Slumond and Suspends The reason of Suspension was because this Bond was payed and retired by Balscaskie the principal Debitor who took a blank Translation thereto from Potter the Assigny which Translation with the Bond it self were surreptitiously taken out of his Coffer by Iames Hay who filled up this Chargers name therein likeas the Suspender produced a Declaration of Potter that the Sum was payed â—o him by Balcaskie and therefore the Suspender craved that the Oaths of this Charger the said Iames Hay and Potter and also the Witnesses who were present at the payment of the Sum might be taken before Answer Which the Lords granted albeit the Charger had the Translation for an oneâ—rous cause Children of Monsual contra Laurie of Naxweltoun February 14. 1662. THE Children of the Laird Monsuel as Executor to their Father pursues Laurie of Maxwelltoun for a Sum due by him to the Defunct who alleadged Compensation upon a Debt due by the Defunct Assigned to the Defender by the Defuncts Creditor after the Defuncts Death and intimat before any Citation or Diligence at the instance of any other Creditor The Pursuer replyed that Debt compensed on cannot take away this Debt pursued for solidum because the Defender as Assigny can be in no better Case then his Cedent and if he were now pursuing he would not be preferred fore his whole Sum but only in so far as the Testament is not yet exhausted or other prior Diligence done for an Executor having but an Office can prefer no Creditor but according to his Diligence much less can any of the Defuncts Debitors by taking Assignation from any of the Defuncts Creditors prefer that Creditor whose intimation is no Legal Diligence The Lords found that the Defender could be in no better Case then the Cedent and could have only compensation in so far as the Inventar was not Exhausted or prior Diligence used they found also that a Decreet against a Defender for making arrested Sums forthcoming at the Instance of an of the Defuncts Creditors was null because the Executor Creditor was not called thereto albeit Decreet was obtainedâ— at the Instance of that Creditor against another Executor in a former Process Lady Muswal Elder contra Lady Muswal Younger February 15. 1662. IN a Contention betwixt the Lady Muswall Elder and Younger upon two Annualrents out of one Barony The Lords Ordained the first Annualrenter to do Diligence within twenty days after each Term that after that time the second Annualrenter might do Diligence or otherwise at her option Ordained the Lands to be divided conform to the Rents Proportionably as the two Annualrents The second Annualrent and the first to take her choise Laird of Pitfoddels contra Laird of Glenkindy Eodem die IN the Revieu of a Decreet in one thousand six hundred fiftie nine at the Instance of the Laird of Pitfoddels against the Laird of Glenkindyâ— in which Decreet Glenkindy Cedents Oath having been taken that the Cause of the Bond was for an Assignation to a Wodset which was excluded by Apprizing after Report whereof Glenkindy the Assigny alleadged that his Cedents Oath could not prejudge him and it being Answered that he made no Objection before the Oath taken neither could make any Just Objection because the Oath of the Cedent any time before Intimationâ— is sufficient against the Assigny Glenkindy Answered that his being called in that Process as Assigny and compearing and Insisting as Assigny was an intimation which was before taking of the Oath which was found Relevant in the said Decreet and now rescinded by the Lords upon this consideration that the Citation being ad hunc offectum to instruct the cause of the Bond the insisting in that pursuite could not be such an intimation as to exclude the Cedents Oath Earl of Bedfoord contra Lord Balmirino February 18. 1662. THE Earl of Bedfoord for satisfaction of his Tocher due by his Father in Law the deceast Earl of Sommerset caused Adjudge in the name of a Person intrusted all Right compent to the Earl of Summerset of the Estate of Iedburgh and being Assigned to the Adjudication pursues the Lord Balmirino for denuding himself of two Apprisings of the Estate of Jedburgh conform to three Back-bonds produced granted by umquhile Balmirino to Summerset acknowledging that he had acquired Right to these Apprysings with Summersets own Money and therefore oblidged him to denude himself thereof The Defender alleadged that his Father being intrusted by the late Earl of Summerset to acquire the Estate of Iedburgh and having the Fee thereof in his Person the Defender is not oblidged to denude himself untill he be Re-imbursed and satisfied of all Sums of Money which after the said Back-bonds he payed for Summerset or advanced to Summerset which can only be accompted to have been in Contemplation of the Trust and is particularly so exprest in Summersets Letters produced bearing that Balmirino should be satisfied of what was due to him out of Tiviotdale whre the said Estate of Iedburgh lyes The Pursuer answered non relâ—vat against him as a singular Successor 2dly Non competit by way of Exception but the Defender hath only Action therefore especially this Trust being fidei-comissum which is a kind of Deposition in which there is neither Compensation nor Retentation competent 3dly there can be here no Compensation because the Debt is not Liquid The Defender answered his Defense stands must Relevant which he founds not upon Compensation but upon the Exception of Retentation which is competent in all Mandats and Trusts by which as there is a
the Reason Elizabeth contra Eodem die THe said Elizabeth pursued the Executors of her Husband and insisted upon several points First she craved the Ann as belonging wholly to her seing there was no Children and the Ann being in favours of the Wife and Children the nearest of Kin could have no part thereof The Defenders answered that the Ann was introduced the time of Popery when the had no Wife nor Bairns and so did still most properly belong to the nearest of Kin who would get it if there were neither Wife nor Bairns The Lords found the Ann to divide betwixt the Pursuer and the nearest of Kin. The Pursuer insisted next and alleadged that a Bond bearing Clausses of Annualrent and Obliegement to Infeft behoved either to give a Right to the half of the Stock or else to a Terce of the Annualrents The Lords found the Clausses of Annualrent and Destination to exclude her from the Stock as Heretor and the want of Infeftment to exclude her from the Terce of Annualrent The Pursuer insisted in the next place and produced a Bond granted by her Father to her Husband and here the longest liver of them two and the heirs procreat betwixt them without any addition or termination failzing these heirs and without Clausses of Annualrents or Infeftment and therefore she claimed the whole Sum as being the longest liver It was answered that this Bond did Constitute in her only a Liferent according to the ordinar conception and interpretation of that Clause the longest liver of them two betwixt man and wife but especially heirs procreat betwixt them being mentioned which behoved to be the mans heirs who if they had existed would have had right as heirs to their Father not to their Mother and therefore the Father behoved to be Feear and the Mother only Liferenter It was further alleadged that beside the Liferent the Pursuer behoved to have right to the half of the Stock because the sum being moveable albeit the Tenor of the Bond made it payable to the Relict for her Liferent use yet she behoved to imploy it so as the Stock would remain which Stock would still be divisible betwixt the Relict and nearest of Kin as being moveable The Lords found that the Pursuer might take her choise of the Liferent or of the half of the sum but would not allow her both Iames Halyburtoun contra Lord Roxburgh Ianuary 25. 1663. JAmes Halyburtoun as Assigney Constitute by his Father pursues the Earl of Roxburgh for payment of a Debt due to his Father The Defender alleadged no Process because the Assignation was not intimate in the Cedents Life and so he was not denuded but the sum remained in bonis defuncti and behoved to be Confirmed especially seing this Assignation is a general Assignation omnium bonorum without condescending upon this or any other particular The Lords Repelled the Defense and found Process Ninian Steuart of Askoege contra Steuart nf Arnhome Eodem die NInian Steuart as heir to his Father Askoege pursues Reduction of a Transaction of a Tack which Tack was Assigned to him by his Wife and by him Transferred to Iohn Steuart heir of a former Marriage The Reason of Reduction was because the Translation was on Death-bed in prejudice of the heir The Defender alleadged Absolvitor because the Pursuer is Witnesse in the Translation which imports his consent The Pursuer answered that Subscribing as Witnesse could import no more but that the Witness saw the Party Subscribe but did not obliege to take inspection of the Contents of the Write 2ly The Pursuer when he Subscribed was minor The Defender answered that in this Case the Subscribing as Witness behoved to import consent because that very Subscription it self by the Father being sick did import a Deed done on Death-bed Especially it not being a Testament but a Writ inter vivos and for the minority the Pursuer was in confinio majoris aetatis and suffered the Defender to possess twenty years long after his anni utiles was past The Lords found the Subscription as Witnesse in this Case to import consent and being quarreled inter annos utiles they found sufficient to a minor though in Confirmation Gordon contra Frazer Iuly 3. 1663. GOrdon having Confirmed himself Executor Creditor to Forbes of Auchinvil pursues 〈…〉 Frazer his Relict for Delivery to him of the Moveables who alleadged absolvitor because the Moveables upon the Mayns of Achnivil were Disponed to her by her umquhil Husband it was answered that the Disposition was simulat inter conjunctas personas retenta possessione and therefore null It was duplyed that the Disposition was upon an onerous Cause without simulation because it bears to be in respect that by the Defuncts Contract of Marriage he is oblieged to Infeft his Wife in five Chalder of Victual out of Auchnivil for the Aliment and Intertainment of his younger Children till the age of fourteen years and because he was necessitate to sell that Land therefore he Disponed the moveables in leu thereof which is also instructed by the Contract of Marriage The Pursuer answered that this is but a provision to Children and could not be preferred to the Defuncts Creditors especially being a provision before the Children were existent and if such should be allowed it were easie upon such latent provisions in favours of Children to prejudge Creditors The Defender answered that if the Pursuers Debt had been anterior to the Contract of Marriage he might have had ground upon the Act of Parliament 1621. but this Debt was posterior to the Contract and there was no reason to hinder a Parent to provide his Children and Dispone Moveables to him in satisfaction thereof The Pursuer answered that both being yet but personal obliegements not having obtained effectual Possession the Creditor though posterior must be preferred to the Children especially if the Defunct have not sufficient Estate to pay both 2ly The Disposition is upon a false Narrative because the Lands of Auchnivil are yet undisponed The Lords found that the Childrens Disposition ought to be preferred unless the Father were insolvendo at his death in which case they preferred the Creditors though posterior and likewise found the alleadgence Relevant that the Narrative was false and so the Disposition without a Cause Isobel Mow contra Dutches of Bucleugh Iuly 7. 1663. THe said Isobel having Served Heir to William Mow her Grandsyre Charges the Dutches as Superiour to receive her she Suspends and compearence is made for certain persons to whom the Chargers Father had Disponed the Lands in question who raised Reduction of the Defenders Retour and Infeftment upon this Reason that the Retour was null Serving the Charger Heir to her Grandsyre as last Vest and Seased whereas they produced the Infeftments of their Uncle and Father as Heirs to their Grandsyre in these Lands and therefore instructed that her Grandsyre dyed not as last Invest and Seased as of Fee but her Father their
being for nineteen years without consent of the Patron The Defender answered that albeit both Parties were in acquirenda possessione yet decimae debentur Parocho ejusque praesumuntur nisi aliter appareat and therefore unless these Teinds have been Transmitted from the Parson of the Paroch by long Possession or Mortification they are his and the Kings Gift alone cannot take them from his but here the Parson has been in Possession by Setting the Tack produced which is sufficient as to Possession albeit it were null by Exception as it is not and the nullity thereof is only competent to the Person of the granter and not to this Pursuer The Lords found the Kings Gift and Decreet conform with Institution and Collation was not sufficient unless either the Mortification of these Teinds or the Prebenders Possession were instructed Mr. Walter Caut contra Iames Loch Eodem die MR Walter Caut having pursued Iames Loch and his Mother as Tutrix for her Interest for the Mails and Duties of some Appryzed Lands and the quantities being referred to the Tutrix Oath she refused to Depone alleadging that she had forgotten the quantities whereupon the Pursuer craved her to be holden as confest upon the Rental given in by him as if she had acknowledged the same The Lords found she could not be holden as confest being not the Party but Tutrix but they found that she might be forced to Depone by Horning and Caption as other Witnesses Alexander Monteith contra Anderson Iune 28. 1665. THere being mutual Reductions betwixt Monteith and Anderson the former having Right to an Appryzing led in Anno 1619. and the other Mr. Iohn Anderson having adjudged in Anno 1656. Mr. Iohn Anderson insisted on this Reason that Monteiths Apprizing proceeded was on a Sum of 5000. Merks due by Iames Nisbet the common debitor to Gilbert Gourlay after that Iames was Rebel at Mr. Iohn Andersons authors Instance after which no Bond granted could prejudge the other Creditor having used Diligence before but the Bond is null by the Act of Parliament 1621. against Bankrupts It was answered for Monteith that that Act was only against Fraudulent Dispositions between confident Persons without Cause onerousâ— but here a Bond of borrowed Money was onerous and no man was thereby hindered to borrow Money Anderson answered that the Narrative of the Rebells Bond bearing borrowed Money could not instruct against a Creditor using prior Diligence This the Lords Repelled Anderson insisted upon this Reason that Gourleys Bond was granted by Iames Nisbet Iames and William Arnolds all Conjunct Principals without a Clause of Relief and this Bond was assigned by Gourley with this express Provision that no Execution should proceed thereupon or upon the Bond or Inhibition against the Arnolds and so if the Assigney had been pursuing Iames Nisbit for all he might have answered that the Assigney had accepted his Assignation with this provision that Iames Nisbet could not use Execution against the other two Co-principals and therefore he being excluded from his Relief could be only lyable for his third part for he would not have subscribed the Bond but upon consideration of his Relief Monteith answered that all the three principals being bound conjunctly and severally the Creditor might renounce all Execution against two of them and yet crave the whole from the third and there was no more done in this case and albeit there be no Clause of mutual relief exprest yet hoc in est de natura rei So that albeit Nisbet by vertue of the Assignation thought it had been transferred to him could not have pursued the two Arnots yet by the obliegement of mutual Relief implyed he might not as Assigney but as coreus debendi Anderson answered that if the Clause had born only a Provision that no execution should pass upon the Assignation it might have been consistant but it bears that no Execution should pass upon the Assignation or Bond. The Lords found that the Obliegement of mutual Relief was implyed where parties were bound conjunctly and severally albeit not exprest and that the Provision related only to the Bond quantum ad creditorum and did not restrict the implyed obliegement of the Co-principal and therefore repelled this Reason also Robert Keill contra Iohn Seaton Iune 28. 1665. GEorge Seaton as principal and the said Iohn Seaton his Cautioner having granted Bond to Robert Keill and being Charged thereupon both did suspend and having alleadged payment they succumbed and were Decerned Iohn Suspends again and raises Reduction upon minority and lesion The Charger answered First That this Reason was competent and omitted in the former Decreet 2ly That proponing payment did homologat the Debt as if an Heir proponed payment he would not be admitted fo renounce thereafter or to deny the passive Title The Suspender answered that the former Process being in a Suspension nothing was competent but what was instantly verified and so minority and laesion was not competent The Charger answered that the Decreet of Registration was turned in a Libel as being Registrat at the Assigneys Instance not having Intimat during the Cedents Life and at that time the Suspender had raised his Reduction and so it was competent The Suspender answered that he was not oblieged to insist in his Reduction and that the reasons thereof were not proper even in an ordinary Action but only by a Reduction It was furder alleadged that competent and omitted took no place in Suspensions The Lords had no regard to the last alleadgence but repelled the alleadgence upon homologation and upon competent and omitted in respect that minority and laesion is neither competent by way of Suspension or exception but by way of Action of Reduction wherein the Suspender was not oblieged to insist Iames Pitcairn contra Isobel Edgar Iune 28. 1665. UMquhil David Edgar by his Contract of Marriage provided 4000. merks to be payed by him and his Heir of the first Marriage which failling any other his Heirs to the Bairns of the second Marriage The portion of the Daughters payable at their age of 18. and the Sons at 21. with five merks yearly of annualrent after his death for the Childrens subsistence Isobel one of the Children having married after her Fathers death Iames Pitcairn her Husbands Creditor pursues for the sum as belonging to the Husband jure mariti It was answered that the sum was Heretable bearing Annualrent and the Term of payment of the Annualrent was come before the marriage and therefore it did not belong to the Husband jure mariti It was answered that it was not properly an Annualrent but an aliment of five percent and that the Term of payment of the Annualrent was after the Act of Parliament 1641. declaring such Bonds moveable and albeit the Fisk and Relict be there excluded yet the jus mariti is not but is only added by the Act 1661. The Lords found that seing this Provision bear Annualrent whether more or less and that the marriage was
power to Dispose of fourty Chalders of Victual and also power to do any Deed he pleased in favours of Balhaven and there could be no Deed more rational then to give a Reversion of his own Estate upon payment of all that the Pursuer had payed to him or for him The Defender answered that this general Clause cannot be understood to be prejudicial to the substance of the Disposition and special Clauses in favours of his Son and the Defenders Oye and their Successors The Lords Repelled the Defense and declared but of consent of the Pursuer superceded to Extract for a time and appointed two of their Number by whose sight the â—ursuer and his Son should be Denuded and the Defender Secured so that it came to no Debate whether such a Clause irritant as this in a Reversion of that which was truely Bought and Sold irredeemably before and no Wodset could be purged Iohn Campbel contra Constantine Dougal Eodem die COnstantine Dougal having granted a Bond to Iohn Houstoun bearing that Iohn for himself and as Administrator for his Son Constantine Campbel had Lent the sum and that the same should be payable to the Father he being on Life and failzieing him by Decease to be payable to Constantine his Son as being his own proper Moneys and to his Heirs or Assigneys Constantine Assigns this Bond to Iohn Campbel who having pursued Exhibition thereof and it being produced insists for Delivery It was alleadged for the Producer that it ought to be Delivered back to him because he had right thereto by Assignation from Iohn Houstoun who in effect was Feear of the Sum it being Lent to him and payable to him during his Life and Constantine his Son was only Heir substitute as is ordinarly interpret by the Lords in such Bonds or Sums Lent by Fathers to be payable to themselves and after their Decease to such Bairns 2dly The Father aâ— lawful Administrator to his Son might have Lifted the Sum in his Sons Minority and therefore he might Assign the same The pursuer answered to the first that albeit Bonds for Money Lent by Parents payabâ—e to themselves and such Children after their Death be so interpret that the Fathers are Feears yet that is only where the Sums are the Parents own but this Sum is acknowledged to be the Sons own Money bâ— the Bond it self 2dly Albeit the Father as lawful Administrator might have Lifted the Sum yet cannot Assign because that is no proper Act of Administration comâ—â—tent to Tutors or Administrators and Executors may uplift Sums and yet cannot Assign The Defender answered to the first that the Money is Lent by the Father not only as Administrator but bears expresly for himself and that these words as being his own Money did not sufficiently prove that it came not from the Father but that after the â—athers Decease it would be the Sons Money To the second that the conception of the Bond being expresly to pay to the Father warranted him to Assign and the Assignâ—y being his Procurator might Lift as well as he the same way as Assigneies can Lift during the Executors Life The Lords found the conception of the Bond to constitute the Son to be Feear and that at leâ—st the words as being the Sons own Moneys presumed the same to have been so ab initio unless it were positively proven that the Money when Lent was the Fathers and found that the Fathers Assignation as lawful Administrator could not exclude the Son but that point whether the Deâ—tors paying to the Fathers Assigney during the Sons Pupillarity or Minority was neither positively alleadged by the Parties nor considered by the Lords Iames Paterson contra Homes December 17. 1667. JAmes Paterson having Charged the Earl of Home in anno 1662. for payment of a Sum due by his Bond. The Earl suspended and found one Brunt-field Cautioner and at the foot of the Bond of Caution Home of White-â—ig Attested the Cautioner in these Terms viz I Attest the Cautioner to be sufficient and subscribes the same which is Registrat with the Bond it self and the Extract produced bearing the same The Suspension being Discust against the Earl of Home and the Cautioner Charged with Horning Paterson pursues the Attester subsidiary for payment of the Debt It was alleadged for the Defender Absolvitor because he having but Attested the Sufficiency of the Cautioner can be holden no further then a Witnesse and so can only be found lyable if his Testimony were found false or that ex dolo he had Attested a person to be sufficient not according to his Judgement but either contrair to his knowledge or without knowledge of his Condition at least his Attesting can only oblige him to prove that the Cautioner when he Attested him was holden and repute a person sufficient for the Sum and that he had a visible Eâ—â—aâ—e in Land Bond or Moveables The Pursuer answered that the Attester behoved to be lyable to him because ejus facto by the Attestation the Suspension was obtained and the Principal being dead without any to represent him and the Cautioner insolvendo the Atâ—ester is obliged de jure to make up the Damnage falling out by his Deed. The Lords found the Alleadgeance for the Attester relevant viz. that the Cautioner was holden and repute sufficient for such a 〈◊〉 at the time of the Attest to be proven prout de jure Lord Abercromby contra Lord New-wark Eodem die THe Lord Abercromby having Sold to the Lord New-wark the Barony of St. Ninians there was a fitted Accompt subscribed by them both in anno 1647. Containing the Sums payed by New-wark and at the foot thereof concluding thirty seven thousand Merks to be Due but there is no mention made of the Instructions in the Accompt the second Article whereof bears payed to Abercrombies Creditor 30. thousand Merks whereâ— upon Abercromby alleadges that seing the Accompt bears not the Delivery of the Instructions that New-wark at least must produce the Instructions of this Article which is general for the Bonds of these Creditors are yet above Abercrombies Head and New-wark makes use of some of them to exhaust the thirty seven thousand Merks Bond at the foot of the Accompâ—â—â— It was answered for New-wark that after 18. years time that he was not obliged to Compt again but the foot of the Accompt being subscribed by the Pursuer beaâ—ing 37. thousand Merks to be only Resting was sufficient to Exoner him and the not mentioning of Instructions Delivered cannot presume or prove against him that they are in his hand else the Accompt signifies nothing and he must not only Instruct this Article but all the rest neither did he make use of any Bonds to exhaust the foot of the Accompt but such only for which Precepts were direct to him after the Accompt The Lords found the Defender not lyable to Compt or produce the Instructions of any of the Articles unless it were proven by his Oath or
that an Annualrent hath not the benefit of a possessory Judgement against a prior Annualrent The Laird of Glencorsse younger contra his Brethren and Sisters Ianuary 10. 1668. THe Laird of Glencorsse having Married his eldest Son and having Disponed to him his whole Estate with Warrandice after the Disposition he did Deliver certain Bonds of Provision in favours of his other Children unto these Children whereupon they Appryze the Lands Disponed to his Son in this Contract there was a Liferent reserved to the Father and nine thousand Merks of Tocher payed to the Father The Son pursues a Reduction of the Bairns Infeftment and Bonds in so far as might be prejudicial to the Disposition granted to him upon this Reason that the Bonds were no delivered Evidents before his Disposition It was answered that they were valide though not Delivered because the Fathers Custody was the Childrens Custody especially they being in his Family both at the time of the Subscribing of the Bonds and of the making of this Disposition and it was â—ever contraverted but that Bonds granted by a Father to his Children though never Delivered during his Life but found amongst his Writs after his Death were valide both to affect his Heirs and Executors The Pursuer answered that his Reason of Reduction stands yet relevant notwithstanding the answer because albeit it be true that Bonds Dispositions and Provisions in favours of Children are valide when they are Delivered by the Parents in their Life or if they have remained uncancelled in their Hands till their Death yet till Delivery or Death they are still pendent Ambulatory Rights and may always be recalled at the pleasure of the Granter and any Deed done by him expresly recalling them or clearly inferring his mind to recall them doth annul them before Delivery ita est the Pursuers Disposition bearing expresse Warrandice against all Deeds done or to be done by the Father granter of these Bonds doth evidently declare his mind that his purpose was not that these Bonds should affect these Lands otherwise he would either reserve the Bonds or a power to burden the Lands and if this were Sustained no Contract of Marriage Disponing the Fee to a Son could be secure it being easie to grant such Bonds and to keep them up above the Sons Head and therewith to affect the Fee yea it would be sufficient against any Stranger unlesse it were for an Onerous Cause 2kly There is not only a Revocation but these Provisions were no Debt of the Fathers prior to the Sons Disposition or Delivery for albeit the date be prior yet the time of their becoming a Debt is only Death or Delivery and therefore all Debt contracted or Deeds done by the Father before his Death or Delivery of the Bonds are prior as to the Obligation thereof to the Bonds so that the Sons Disposition is truly prior as to its Obligations to these Bonds The Defender answered to the first that albeit such Bonds be Revocable before Delivery yet here there is no expresse Revocation but only presumption inserred from the Fathers giving a posterior Disposition which is no sufficient ground either â—rom the Disposition or the Warrandice for the Fathers mind might have been that he would endeavour out of his Liâ—erent or Moveables to Portion his Children and so would not absolutely Burden the Fee but yet in case he should Die or not be able to do it he would not Revock the Bonds even as to that Right which is much rather to be presumed as being much more rational and probable seing there is not any Provision or power of Provision reserved in the Contract neither is there any competent way alleadged for providing of three Children but if this Sole presumption be sufficient though a Father should Dispone his whole Estate without any Reservation of Children or to be so inconsiderat as not to except his Aliment all prior Provisions for his Life-rent undelivered should cease and become ineffectual contrair to that Natural obligation of Parents to provide their Children against which no presumption can be prevalent As to the other ground Provisions though not Delivered can be in no worse case then Bonds delivered with a Condition that the Father might recall the same which would be valid from their Date if they were never actually recalled and so must Bonds of Provision be at least as to gratuitous Deeds after their Date though before Delivery as if a Father should grant Bonds of Provision to many Children at once and should Deliver some of them before the rest if he had not Means sufficient to pay all the Bonds first Delivered could not be thought to exhaust his whole Means and exclude the other Bonds of Provision but all would come in pari passu according to their Dates except their Diligence alter the Case The Lords notwithstanding of what was alleadged found the Reason of Reduction relevant and that the undelivered Bonds of Provision though prior in Date yet posterior in Delivery could not affect the Fee interveening Here there was much alleadged upon the Onerosity of the Pursuers Disposition which came not to be considered in the Decision Grant contra Grant Ianuary 11. 1668. WIlliam Grant of Markinsh pursues a Tutor Compt against Iohn Grant of Ballandallock his Tutor in which these points being reported to the Lords whether the Tutor were lyable for the value of Services of the Pupils Tennents by Harrowing Plowing and Shearing c. And for which the Tutor received no Money but the Services in kind The Lords found the Tutor not Comptable therefore because he could not force the Tennents to pay any price for the same And as to that point the Tutor being super-expended the Pupil might be Decerned upon the Pupils own Process against the Tutor without a distinct Process at the Tutor instance The Lords found he might Parkman contra Captain Allan Ianuary 14. 1668. CAptain Allan having obtained a Decreet against Parkman a Swede Adjudging his Ship Pryze upon these Grounds that she was Sailed with three persons of her Company being Hollanders and Danes being then the Kings Enemies and because she had carried of the Enemies Goods from Bergen in Norway to Amsterdam from whence having gone to France with Ballast and being Loaden there with Salt she did also carry in to France six Barrels of Tar which was sold in France as appears by an Accompt betwixt the â—kipper and his Factor in France bearing so much to be payed of the Kings and Towns Custom of the Tar which necessarly Imports that it was sold there likewise she carried in Stock-fish being Commeatus and Counterband Goods so that having sold several Lasts of Tar in Holland and these Barrals and Stock-fish in France which are clearly Counterband Goods and being taken in her return from France having in her the product of these Counterband Goods whereupon she was jâ—â—tly declared Prize conform to the Lord Admirals Commission ordaining Ships of Allies to be taken having
same to her in Liferent for her Liferent use only and after her Decease to William Mauld her Son and his Heirs and another Bond bearing him to have Received from the Relict a thousand Merks in name of Henry Mauld her Son and obliging him to pay to the said Henry and his Heirs and after all he granted a Bond of ten thousand Merks to the Relict her Heirs and Assigneys which was made up of what remained due of all the three this Bond the Relict Assigned to the Laird of Touch who having Charged Ardrosse and he having Suspended there arose a Competition betwixt Touch as Assigney and Agnes Dundasse as Heir and Executrix to Mr. Henry William and Henry Maulds and thereupon a division of the Sums betwixt the Parties thereafter Agnes Dundasse pursues Ardrosse to make payment to her as Heir and Executrix to William and Henry Maulds of two thousand Merks which he was Addebted to the said William and of one thousand he was Addebted to the said Henry Whereupon he hath Deponed that he was Debitor by all the saids Bonds before related and no otherways and that in the former Decreet by mistake it was exprest that the ten thousand Merks Bond was made up of the eight thousand Merks Bond and of two thousand Merks of Annualrent thereof whereas the truth was it was made up by what was resting of the two Bonds due to William and Henry which he produced cancelled of the Tenor foresaid It was alleadged for Agnes Dundasse that the Sums of these Bonds behoved only to belong to her as Heir and Executrix to William and Henry Maulds and not to Touch as Assigney by the Relict It was answered First That the said Agnes had Homologat the prior Decreet and division therein made by giving Discharges accordingly could not claim any more 2dly Another having taken a Bond in the Name of her two Sons being Bairns in her Family might lawfully alter the same at her pleasure there being nothing more ordinar then that Fathers gives Bonds of Provision to their Children or takes Bonds from their Creditors in their Names yet these being never Delivered the Parents may Dispose of them at their pleasure It was answered for the Executrix that the alleadgeance of Homologation is not Relevant because it is Emergent by Ardrosse his Oath that the ten thousand merks Bond was not made up by the Annualrent but by the said two Bonds so that there could be no Homologation of that whereof the Executrix was excusably ignorant To the second That albeit Fathers granting Bonds of Provision in Name of their Children may alter the same at any time before Delivery Yet where they lend out the Sum to a Creditor and take him obliged to a Child in Fee that cannot be â—ltered especially where the Parent is naked Liferenter and hath not reserved a power to lift and Dispone but whatsoever be in the case of a Father providing his Children who can by no presumption be thought to have any Means yet after the Fathers Death a Mother taking a Bond in the Name of a Bairn it must be presumed to be the Bairnâ— Money coming by the Father or otherwise and the Mother having stated her self naked Liferentrix in the one Bond and having no interest in the other Bond she could not recal or alter the same in prejudice of the Children especially seing they were Infants and had not Tutors to care for them It was answered that the Mother had held count for the whole Means of the Father and so had cleared any presumption that thir Boâ—â—s could be of his Means but she Liferented the whole Estate and made up thir Bonds out of the Rents and Annualrents and denyed to be Tutrix or Pro-tutrix so that the Money being freely her own and her Children having died before her she might warrantably alter the Bond. The Lords found that the Mother could not alter the Bonds taken in favours of her Children from a Debitor being of the Tenors above-written wherein she was naked Liferenter of the one and had not so much as a Liferent of the other and that the Sums were rather presumed to be of the Bairns Means then her own seing they had no Tutor and any medling with their Means was by her self and that their Executrix could not now be put to instruct what Means they had or be countable thereupon Iohn Armour contra Iames Lands February 21. 1671. IOhn Armour pursues his Tennents of some Tenements in Edinburgh for Meals and Duties Compearance is made for Iames Lands who produces a Bond granted by umquhil George Armour bearing that George Armour as Tutor Testamentar to Iohn Armour had borrowed 500. merks from Iames Lands and obliges him his Heirs Executors and Assigneys to repay the same and thereby sets some of the saids Tenements to Iames Lands ay and while he be satisfied of the 500. merks and thereupon alleadges he must be preferred to the Mails and Duties till he be payed It was answered this Bond and Tack were not sufficient in respect he does not bind himself as Tutor nor the Pupil but his own Executor and Assigneys and so it must be the Tutors own Debt 2dly This Debt cannot burden the Pupil simply upon the Assertion of the Tutor but the Creditor ought to have seen the Sum applyed to the Pupils use and therefore must yet alleadge in rem versam Otherways if the naked Assertion of Tutors may burden the Pupils when they borrow their Name it is a patent way to destroy all Pupils Tutors being oftimes insolvent 3dly The Tutor could not set a Tack of the Pupils Lands Longer than he had Interest as Tutor Ita est the Tutory is ceassed by the Tutors Death The Lords found that this Creditor behoved to instruct the Sum applyed to the Pupils behove which being proven they Sustained the Tack Alexander Pitâ—â—irn contra February 22. 1671. ALexander Pitcairn having Right by progress to a Wodset granted by Iames Kininmouth to Mr. Iames Gordoun and by him Disponed to Sir Archibald Sydserf and by him to the Pursuer pursues the Tennents for Mails and Duties who alleadged that Gordoun or Sydserf were satisfied by intromission with the Rents for which they were comptable It was Replyed that Sir Archibald Sydserf had obtained Declarator of the expyring of the Reversion and was neither Countable nor Redeemable and for proving thereof produced the Decreet of Declarator in Anno 1637. against which it was objected that it was null because albeit the Libel was upon a Clause irritant whereby it is provided if the Money were required and not payed within such a time the Reversion should expire yet at the Compearance and Production there is no mention thereof albeit at the Conclusion the Decreet bears because the Libel was sufficiently proven by Production of the Writs aforesaid which can be only understood of the Writs in the Production and it is not enough only that they were libelled upon for in all Decreets the
Pursuer cannot purge his Appryzing as now being in the Person of the appearand Heir by the Act of Parliament 1661 betwixt Debitor and Creditor by payment of what truely the appearand Heir payed because the express Provision in that Act is that where ever the appearand Heir of the Debitor shall acquire Right to expired Apprizings hereafter which cannot extend to this case because the Right to this Apprizing was acquired before that Act and because it was not an expired Appryzing but the Legal then running It was answered that albeit the Disposition of the Appryzing granted to the appearand Heir was prior to the Act yet the Right was purchased posterior to the Act for the Disposition could not give Right but only the Infeftment following thereupon for if after that Disposition any other had been Infeft upon Appryzing or Disposition by the Defenders Author that posterior Infeftment would carry the Right so that the Author cannot be said to be divested or the appearand Heir invested or stated in the Right till his Infeftment which is after the Act of Parliament To the second The Pursuer answered that the Defenders Appryzing albeit it was Redeemable when he acquired Right thereto yet it becoming now irredeemable in his Person it cannot be denyed but he has acquired Right to an irredeemable Appryzing albeit it was not irredeemable when he acquired the Right yet he hath acquired Right to that Appryzing that now is irredeemable for the Extinction of the legal Reversion cursu temporis is a Right accrescing to him and acquired by him and no Heretage to him and seing the Words of the Act are capable of this interpretation there can be no doubt of the Legislators mind or that it should be thus interpret because otherwayes that excellent Provision would be evacuate for the appearand Heir would alwayes acquire Right to an Appryzing before the Legal were expyred though he should pay the Appryzer the full sum and would make no use of it till the Legal were Expyred and thereby carry the Right of the whole Estate though it were of twenty times more value But the only Motive of that Act of Parliament being that albeit the Law gives Appryzers the Right of all that they Appryze at random if they be not Redeemed within the Legal yet the Appryzer is ashamed to take so great Legal advantage and therefore ordinarly compones with the appearand Heir who being favourable makes no Bonds to bruik the whole Estate of his Predecessor excluding all his other Creditors and therefore this Remeed is introduced which will be evacuate if the Act of Parliament be not thus interpret and that interpretation should be ever followed which is according to Equity and whereby the Statute may stand and not be eluded The Defender answered that this Statute being Correctory of the Common Law is strictly to be interpret and not to be extended and the Acquisition of Rights being ever interpret from the Disposition and not from the Infeftment thereon multo magis should it be so interpret in this case And as to that part thereof anent the Expyring of the Appryzing the Pursuers Interpretation is not only constrained but inconsistent with Justice for ubi subest Remedium ordinarium non est recurrendum ad medium extraordinarium for if the appearand Heir acquire Right to an Appryzing unexpyred the Reason and Motive of the Statute ceases for both the Debitor and Con-creditors may Redeem from the appearand Heir and can pretend no necessity of extraordinary Remeed especially if the appearand Heirs Right be not latent but publick by Infeftment The Lords found that the appearand Heirs Right being only become Real by Infeftment after the Act of Parliament that it was then to be understood to be acquired when the Author was Denuded and the appearand Heir Invested so that no posterior Right from his Author could Exclude him And found also that albeit the appearand Heirs Right were during the Legal yet if it stood in his Person till the Legal were expyred that the same fell within the Act of Parliament and found it Redeemable by what the appearand Heir truly payed within ten years to be counted from the Date of the acquiring of the Right conform to the words of the Act and not from the time the Appryzing became expyred thereafter Scot of Hassendene contra The Dutches of Buccleugh Eodem die UMquhil Scot of Hassendene having no Children Disponed his Estate to Buccleugh his Chief who granted a Back-bond of the same Date bearing the Disposition to have been granted upon the ground foresaid and obliges himself and his Heirs that in case Hassendene should have Heirs of his Body to succeed him that he should denude in favours of these Heirs and now his Son and Heir born thereafter pursues the Dutches to Denude who alleadged Absolvitor because the Back-bond being now fourscore years since is long ago Expyred It was answered that albeit the Date be so long since yet the Prescription runs not from the date but from the Death of the Pursuers Father which is within fourty years for the Pursuer could not be his Heir before he was Dead and the Back-bond bears if Hassendene had Heirs to succeed to him It was answered that Heirs oftimes were interpret Bairns that might be Heirs and if this Pursuer had pursued in his Fathers Life he could not have been justly excluded because his Father was not Dead and he actually Heir and so valebat agere in his Fathers Life It was answered that although in some favourable Cases Heirs be interpret to be Bairns that might be Heirs yet in odiosis it is never so to be interpret and there is nothing more odious than to take away the Pursuers Inheritance freely Disponed to Buccleugh by his Father in case he had no Children upon Prescription by such an extensive interpretation of the Clause 2dly If he had pursued in his Fathers Life he might have been justly Excluded because if he had happened to die without issue before his Father Buccleugh had unquestionable Right and so during his Fathers Life he could not be compelled to Denude The Lords found that the Prescription did only run from the Death of the Father and that this Pursuer could not have effectually pursued in his Fathers Lifetime Blair of Bethaick contra Blair of Denhead Iuly 22. 1671. PAtrick Blair of Bethaick as principal and Patrick Blair of Ardblair as Cautioner granted Bond to Iean Blair and failing of her by Decease to her Children equally amongst them for the sum of 2550. mâ—rks upon 5th of May 1624. there were five years Annualrent resting at the Death of the said Iean Blair and now Captain Guthry her Executor pursues the Representatives of the Cautioner for payment thereof who alleadge Absolvitor because the last of these Annualrents being due in Anno 1630. There is fourty years run before this pursuit or any other Diligence and so the Bond it self is Prescribed and specially these years Annualrents
Party willed not nor consented not to the Right and if by such Interruptions Parties got wrong it was their own fault who did not either declare their Right or insist in a molestation debito tempore or use mutual Interruptions but here it was considered that Possession before the year 1610. would be equivalent to Immemorial Possession albeit the Witnesses were not positive upon 20. Years Possession before in respect the Years were 50. Years since Children of Wolmet contra Dowglas and Cuningham November 20. 1662. IN a Persuit at the instance of the Children of Wolmet for the Profit of the Coal of Wolmet intrometted with by the said Iean Dowglas Lady Wolmet in her Viduity by vertue of a Tack of the Coal granted by Umqhile Wolmet to his Children for their Portions it was alleadged for the Defender First absolvitor because the said Iean had right to the said Profit of the said Coal ever since her Husbands Death by vertue of the Wodset of the Lands and Coals of Wolmet granted by Umquhile Patrick Edmonstcun of Wolmet to Iames Loch wherein there is a Back-tack of the Land and Coal set to the said Umquhile Wolmet and the said Iean his Spouse for the Annualrent of the Money It was replyed for the Pursuer that the foresaid Back-tack was taken by Wolmet stante matrimonio and so was donatio inter uirum uxorem null in it self nisi morte confirmetur and was confirmed by Wolmets Death but Revocked by the Pursuers Tack granted to his Children after the said Back-tack It was answered for the Pursuers that the reply ought to be repelled because the Back-tack was no Donation but a permutation in so far as the Lady by her Contract of Marriage was Infeft in the half of the Lands of Wolmet which Infeftment she renounced in favours of Iames Loch at the taking of the Wodset and in lieu thereof she got this Back-tack which therefore can be no Donation which must be graâ—uâ—tus without a cause onerous It was replyed by the Pursuers that the duply is not relevant for albeit it be not a pure Donation yet quoad excessum the superplus of the benefit of the Back-tack above the benefit of the Contract of Marriage is gratitude and a Donation and the reason of the Law against Donations betwixt Man and Wife being mutuo amore se spolient it holds in it and it would be easie to allude the intent of that good Law if Donations contrived under the way of permutation without any real equalitie were allowable It was answered for the Defender that the duply stands relevant and the superplus of a permutation cannot be called a Donation more then the benefit of an advantagious Vendition it is true that if the Donation of the Back-tack had been ex intervallo after the Ladies Renounciation it would have been vincus Contractus but two distinct Donations or if the matter exchanged had been aliquid ejusdem specei as an Annualrent of 500 merk with an Annualrent of a 1000 lib. the superplus would have been a Donation or if the Lady had received a notable excess above the half yea above the third of what she quat it might have been revocable by her Husband she being reponed to her first Condition by her Contract of Marriage but here there is no such exorbitant excess she having quat a certain Land Rent for the profit of a Coal which is most uncertain for the hail Land Rent would not pay the Back-tack and it is now Wodset and likewise she is personally lyable for the Back-tack Dutie The Lords repelled the Defense and Duply in respect of the Reply and Triply and found the Excess so considerable in this case that it was as a Donation and was revocked by the Childrens Tack but found that before the Defender made payment of what should be found due by this accompt she should be reponed and put in statu quo prius by her Contract of Marriage It was further alleadged for the Defender absolvitor because that albeit her Right by the Back-tack were revocked by the Childrens Tack yet she is bona fide possessor fecit fructus consumptos suos according to the Law of this Kingdom and of most of other Nations necessarily introduced for the good and quiet of the People because as to and profits they spend as they have and therefore what they spend bona fide by a colourable Title they are secured in that albeit their Title be taken away yet they shall not be called in question for what they have injoyed bona fide before Sentence or Citation It was answered for the Pursuers that the Defense was not relevant in that case where the Question is not of industrial fruit but of natural fruit such as Coal Secondly it is not relevant unless it were cum titulo not ipso jure null but here the Defenders Title being a Donation betwixt Man and Wife is by the Civil Law which herein we follow null in se nisi morte confirmetur Thirdly there must be bona fides which is not here because it is instructed by a minute of a Contract produced within five moneths before the Childrens Tack that the Lady consented to the providing of the Children by the profit of the Coal and she cannot be presumed ignorant of so Domestick an affair in favour of her own Children done by her Husband and she hath given up an Article in her accompt of the expense of Registrating the Childrens Tack by her self and so she must be presumed to have possessed as protutrix for her Children and not to Defraud or Exclude them It was answered for the Defender that the defense stands yet relevant and the Law makes no difference betwixt Industrial and Natural Fruits he who possesses Lands bona fide is no more comptable for the Grass that growes of it self nor for the Corn that he labours for 4. And Coal is an industrial Fruit having as much pains and expense as Corns and other industrial Fruit and more uncertainty as to the Title albeit be valid yet sufficit coloratus velâ—putativus titulus and albeit in the antient Roman Law such Donations were null in se nisi confirmentur morte yet by the subsequent course of the Law per oraâ—ionem Antonij they are declared valid in themselves unless they be revocked and therefore are not null but Anullantur medio facto and there are many nullities which may consist with a colourable Title ad hunc affectum lucrari Fructus consumptus as if the nulitie be not ex defectu substantialium but by defect of some solemnity as the not Registration of a Seasine will not make it so null but that possessor bona fide thereby will imploy the Fruits but if it want tradition of the symble it will be null in se but here such Donations have all there essentials but they are only anullable by a subsequent fact and as to the Evidence that the Lady was in mala fide they
constant custome the entertainment of the Defuncts Families was ever a burthen on their Moveables and upon their Executry The Pursuer answered though it was ordinarly retained off the Moveables yet the Heir was also lyable seing the Defunct was oblieged to entertain his Servants and Children at least to a Term but much more when there were no Moveables or where the Defunct was Rebel and the Donatar intrometted The Defender answered that it was novum to conveen an Heir on this ground and that the Alledgiance of there being no Moveables held not here neither is it relevant that the Moveables were gifted unless it had been declared before the Defunct's Death and Possession obtained otherwayes the Relict ought to have Alimented the Family out of the Moveables which would have liberat her from the Donatar and is yet ground against the Donatars The Pursuer answered she could not retain because the Donatar with Concourse of the Defender did put her brevi manu from the Defunct's House and all the Moveables The Lords having amongst themselves considered this Process did put difference between the Aliment of the Appearant Heir and the rest of the Family As to the Heir they found that albeit he was never Infeft yet as Appearant Heir he had Right to the Mails and Duties from his Fathers Death untill his own Death though the Terms had been to run before he was born being in utero and that the Defender in so far as medling with the Rents was lyable for the Appearant Heirs Aliment but for the rest of the Familie the Lords superceeded to give answer till diligence were done against the Donatar or other Intrometters with the Moveables Thomas Dumbar of Muchrome contra The Vassals of the Barrony of Muchrome Eodem die THomas Dumbar of Muchrome pursues Reduction and Improbation against the Vassals of the Barrony of Mochrume wherein all the Terms being run reserving Defenses Now at the last Term it was alleaged for Hay of Arriolland no Certification contra non producta against him because he had produced a Precept of clare constat from the Pursuers Father as Heir to whom he pursues Secondly It was alleaged that he had produced sufficiently to exclude the Pursuers Right produced and so till his Rights produced were discust and taken away there could be no Certification contra non producta The Pursuer answered to the first that the Precept of clare constat was but in obedience of a Precept out of the Chancellary As to the Ancient Rights produced if the Defender would rest thereon he needed not stand that Certification should be granted against any others not produced seing these produced are sufficient but if the Certification should be thus stopped the effect of all Improbations and Non-entries should be marred by dropping in new Writs from time to time and still disputing thereon and so dispute the Reasons before the Production were closed at least the Defender ought to alledge that the Writs produced are sufficient and declare he will make use of no further in this Process The Lords repelled the first Alleadgance on the Precept of clare constat being for obedience but found the second Alleadgance relevant hoc ordine and ordained the Defender to condescend upon his Rights by way of Defence to the Pursuer to answer thereto presently Collonel Iohn Fullertoun contra Viscount of Kingstoun Ianuary 8. 1663. COllonel Iohn Fullertoun having charged the Viscount of Kingstoun upon a Bond of borrowed Mony he suspends on these Reasons That the Collonel granted Assignation to Umquile Sir Alexander Dowglas to a Sum dew by Sir William Thomson and notwithstanding of the Assignation he uplifted the Sum himself at least his Brother by his order whereupon the Lady Kingstoun Daughter and Heir to the said Sir Alexander having Licence to pursue hath pursued the Collonel upon the Warrandice for Re-payment which Action being seen and returned and ready to be discust the Suspender craves Compensation thereon The Charger answered That the reason of Compensation is not relevant because it is not liquid the foresaid Sum not being confirmed by any Executor nor Sentence thereupon neither can it be instantly verified because it must abide Probation that the Collonel or his Brother by his order uplifted the Sum and there being only a licence to pursue the Debt cannot be established till a Confirmation Secondly Albeit the Compensation were relievable yet the Reason ought to be repelled because that any such Assignation was granted it was in trust to the Collonels own behove as is instructed by a missive Letter to the Charger produced It was answered for the Suspender that the Answers founded upon the missive Letter ought to be repelled because it was null neither being Holograph nor having Witnesses Secondly It is most suspect being written upon old blacked Paper The Charger answered that Letters amongst Merchands though not Holograph are sustained and ought much more among Souldiers especially between the Charger and Sir Alexander who then was his Lieutenant Collonel which is the more clear that there was never a question of it these 20 years neither was it contained in the Inventar of Sir Alexanders Papers though there were insert Papers of less moment but that it was gotten from one White for 40. or 50. Pound The Lords repelled the Compensation as not being liquid and found the Letters orderly proceeded superceeding Execution till Whitsunday 1663. But upon the other Process against the Charger The Lords considering the matter was old and dubious before Answer they ordained Witnesses to be examined hinc inde upon all Adminicles that could be adduced for or against the Trust. Lady Otter contra Laird of Otter Eodem die THe Umquhile Laird of Otter by his Contract of Marriage having provided his Estate to his Heir Male provided 5000 Merks to his eldest Heir Female when she should be capable of Marriage and an occasion offered whereupon the said Heir Female her Mother pursues the Heir Male for payment of the Sum and for payment of an Aliment to the Heir Female during the time she hath been with her Mother and in time coming till the provision be payed The Defender alleadged the Libel is no way relevant for Aliment he not being oblidged by the Contract for any Aliment but only for the Sum at such a time neither is there any Annualrent due for the Provision till the Term of payment Yet the Lords found that albeit that was no Annualrent nor provision for Aliment and that de jure Annualrent is but due ex pacto they would in this case allow an Aliment far within the Annualrent because it was all that the Daughters got for a very considerable Estate which was but a very small provision Patrick Nicoll contra Sir Alexander Hope Eodem die PAtrick Nicoll pursues a Declarator of Propertie of his Lands of Grantoun and that he had good Right thereto conform to the Bounds Lybelled It was alleadged for Sir Alexander Hope First All Parttes having interest
the Houses The Lords found there was yet place to Resile and therefore assoilzied Margaret Stevenson and her Son contra Ker and others Eodem die MArgaret Stevenson pursues Margaret Ker as vitious Intromissatrix with the Goods of her Husband for payment of a Debt wherein he was Cautioner She alleadged absolvitor because her Iutromission was purged in so far as she had Confirmed herself Executrix Creditrix It was answered by the Pursuer non relevat unless before intenting of the Cause The Defender answered it was sufficient being within year and day after the Defunct's Death Which the Lords found Relevant Lord Balnagoun contra M. Thomas Mckenzie Eodem die BAlnagoun as Donator to the Escheat of his Father pursues Mr Thomas Mckenzie for the price of some Lands sold to him by his Father and for the annualrents since It was answered for the Defender that there was no Annualrent due by the Minute and albeit it was the price of Land yet Balnagoun had never made Mr. Thomas a Right to this day but had forced him to be at a huge Expenses and Plea and so was in mora that the price was not payed and albeitâ—he did possess the Lands it was by redeeming Wodsets thereupon contained in the Minute The Lords found Mr. Thomas lyable either for the Annualrent or for the superplus of the Rents of the Land more then payed the Annualrent In this Process it was found that the Probation of a Tenor before an Inferiour Iudge was null Margaret Edgar contra Iohn Murray Ianuary 29. 1663. MArgaret Edgar having Charged Iohn Murray as Cautioner for the umquhil Viscount of Stormont he Suspends and offers him to prove by her Oath that she transacted with him to accept a Decreet against the principal to free him The Charger answered that she being a Wife clade with a Husband could not swear in his prejudice The Suspender Replyed that before her Marriage he had raised a Pursuit and Cited her to hear and see it found and declared he was free of Cautionry in respect of the said Transaction and so the matter being Litigious her marrying during the Dependence cannot exclude him from his Oath but must work against her Husband who is only jure mariti a Legal Assigney The Lords found this Reply Relevant Scot contra Mr. John Dickson Eodem die SCot as Assigney by her Father to a Bond Charges Mr. Iohn Dickson to make payment he Suspends on this Reason that the Assignation being while the Charger was Wife to Scot her Husband the Sum belonged to the Husband jure mariti and therefore craves Compensation of the like Sums payed to or for the Husband The Charger answered that though the Date of the Assignation was before her Husbands Death yet her Father keeped the same in his Custody and it was not Intimate till after the Husbands Death and so the Right not being Established in the Wifes Person by Intimation could not accresce to the Husband unless the Suspender would instruct that it was Intimate before The Lords found that seing the Assignation was now in the Wifes hands they would not put the Suspender to prove the Delivery thereof during the Marriage but that it was presumed to have been delivered according to the Date and that thereby it became the Husbands jure mariti though no Intimation was in his time Archibald Stuart contra Bogle and Matthie Ianuary 30. 1663. BOgle and Matthie being Conveened before Archibald Stuart as Baillie of the Regality of Glasgow for a wrong committed upon two other Persons in the Kirk upon the Sabbath thrusting in upon them in Seat and beating them they were therefore amerciat in 200. Pounds half to the Party and half to the Fiskall It was alleadged the Fine was exorbitant and that Inferiour Courts could not amerciat above ten Pounds as it had been found by several Decisions It was answered that this Court being a Regality and the Fact so atrocius the Fine was very Competent The Lords Sustained the Decreet Town of Linlithgow contra Inhabitants of Borrowstounness Eodem die THe Town of Linlithgow having apprehended an Inhabitant of Borrowstounness in their Town being an un-free man and exercising the Trade of Merchandise they put him in Prison he granted Bond to forbear in all time coming Likeas they fined him in a 100. merks he Suspended and raised Reduction on this Reason that the Bond was extorted when so far as he was summarly taken and put in Prison and could not get out till he promised to give the Bond and immediatly after he was out subscribed the same The Charger alleadged there was no unjust force or fear because by the Acts of Parliament in favours of Free Borrows all unfree men are discharged to exercise the Trade of Merchandise whereupon they had obtained Decreet against the same Suspender to desist and cease therefrom Secondly They and all other free Borrows had immemorially possessed this priviledge to apprehend persons found within their Town and forced them to find Caution as Law will upon Debt due to any in the Town and particularly to put them in Prison till they give such Bonds in Surety as this The Suspender answered to the first there was no such Warrand by the Act of Parliament but only to Charge with general Letters un-free men to find Caution and for the Priviledge of Borrows to arrest un-free persons within their Towns it is only in case of Debts and other Merchandises due to Burgesses but cannot be extended to this Case where there is a special Order set down by Act of Parliament The Lords found that the Burghs Royal summarly upon Staple Ware of un-free men and might judge thereanent but not summarly Incarcerate their Persons but only to Charge them and found their Custom and Priviledge not to extend to this Case and therefore found the Reason of Reduction Relevant The Lady Carnagy contra The Lord Cranburn Eodem die LAdy Anna Hamiltoun and the Lord Carnagie her Husband as having obtained a Gift of Recognition from the King of the Barony of Innerweek and being thereupon Infeft pursues the Lord Cranburn to whom the samine was Disponed by the Earl of Dirletoun Grand-Father to both for declaring the Recognition and the Donatrix Right in so far as Iames Maxwel late Earl of Dirletoun holding the saids Lands of His Majesties Ward and relief had without His Majesties consent Alienat and Disponed the same to Iames Cicile his Oye then second Son to the Lord Cranburn procreat betwixt him and the Earl of Dirletouns second Daughter It was alleadged for the Defender absolvitor because where there was no Infeftment there could be no Alienation nor Recognition and there could be no Infeftment without the same were granted to the Disponer or his Procurator to the accepter to his Procurator but here there was no accepter nor Procurator because Cranburn being then a Child and in England had granted no Mandat to take this Seasine and therefore had raised Reduction thereof
no Intimation being Contracted by and so known to Ker himself and therefore found Ogilbies Discharge ineffectual Town of Edinburgh contra Lord Ley and William Veatch July 8. 1664. IN a Double Poynding raised by the Town of Edinburgh against my Lord Ley on the one part and William Veitch upon the other The Ground whereof was this The Town of Edinburgh being Debitor to umquhil Dowglas of Mortoun in a Sum of Money his Son Confirmed himself Executor to his Father and Confirmed this Sum which was Arrested in the Towns hands by William Veatch first and thereafter by my Lord Ley. It was alleadged for William Veatch that he ought to be preferred having used the first Diligence by Arresting several years before my Lord Ley and having obtained Decreet against the Town before the Commissars but before it was Extracted my Lord Ley obtained Advocation It was alleadged for my Lord Ley that he ought to be preferred because the sum Arrested being due to umquhil Dowglas of Mortoun There was never a Decreet obtained at the Instance of this Executor establishing it in his Person and therefore this Competition being betwixt William Veatch who was only the Executors proper Creditor and not the Defuncts Creditor The Defuncts Money ought to be applyed First to pay the Defuncts Debt before the Executors Debt albeit the Executors own Creditor had done the first Diligence The Lords found that the Lord Ley as being Creditor to the Defunct ought first to be preferred seing now he appears before the Debt was Established in the Person of the Executor Nisbit contra Lesly Eodem die JOhn Nisbit as Assigney Constitute by Major Drummond Charges Lachlan Lesly to pay four Dollars for ilk Souldier of sixty conform to a Contract betwixt Major Drummond and Lodovick Lesly for whom Lachlan was Cautioner Lachlan Suspends on this Reason that the Charge is to the behove of Francis Arneil who was Conjunct Cautioner and bound for mutual Relief and therefore he can ask no more then his share of what he truely payed in Composition The Charger answered that he nor Francis Arneil were not Charging on the Clause of Relief but on the principal Contract as Assigney And though he had gotten Assignation thereto gratis he might crave the same except his own part Which the Lords found Relevant Heugh Kennedy contra George Hutchison Eodem die HEugh Kennedy as Assigney by Sir Mark Ker to a Bill of Exchange which was drawn by George Hutchison upon William Schaw at London payable to Sir Mark for like value received from him did obtain Decreet against George Hutchison and one Schaw as Intrometters with the Goods of William Schaw both for the Bill it self and for the Exchange and Re-exchange the Bill being Protested for not payment This Decreet being Suspended it was alleadged that there could be no Exchange or Re-exchange nor any thing payed for the Bill because the Bill was not lawfully protested but being accepted by Schaw at London he shortly after dyed and it was protested at his house where he dyed before none of his Relations having neither Wife nor Children The Charger answered that he took Instruments on the Defense and alleadged that he needed not to prove the passive Title Secondly That he had done all that was requisit having protested at the Dwelling-house where Schaw resided The Lords found that in this Case that Death Interveening which was an Accident there could be no Exchange nor Re-exchange because this was no voluntar Failzâ—e nor fault But found that the Charger as Assigney might either take himself for the single value against the Person drawer of the Bill or to his Successors on whom it was drawn Earl of Airly contra Iohn Mcintosh Eodem die THe Earl of Airly pursues Iohn Mcintosh for Contravention and Lybels these Deeds that the Defenders Herds had been found Pasturing several times far within his Ground for a considerable time which Ground was without all Controversie the Pursuers The Lords Sustained the Lybel it being always proven that the Herd herded by his Masters Command or Ratihabition and referred to themselves at their conclusion of the Cause to consider whether they would sustain the several times of hirding as several Deeds toties quoties or if only as one Deed made up of all and how far the witnesses should be received as to command or direction of the Defender Dumbar of Hempriggs contra Frazer July 11. 1664. HEmprigs as Executor to Dumbeath having pursued the Lady Frazer Relict of Dumbeath and the Lord Frazer for his Interest for payment of Executory intrometted with by the Lady there being Litiscontestation in the Cause Dumbeath calls the Act and craves the Term to be Circumduced against the Lord Frazer who alleadged that now his Lady was dead and so his interest being jus mariti ceased It was answered Litiscontestation being made the Debt was Constitute in the Husbands Person as if he had Contracted to pay it Litiscontestation being a Judicial Contract Secondly The Lord Frazer was Decerned to give Bond to pay what his Lady should be found due Frazar answered that no Bond was yet given and that the Ordinance was only against him as he was cited which was for his Interest which is Seassed And which the Lords found Relevant and Assoilzied Grahame of Hiltoun contra the Heretors of Clackmannan Iuly 13. 1664. GRahame of Hiltoun having obtained a Decreet against the Heretors of Clackmannan for a sum of Money Imposed upon that Shire by the Commity of Estates the Heretors of the Shire have raised a Revew and alleadged that this Decreet being obtained before the Commissioners in the English time he has liberty to quarrel the Justice thereof within a year conform to the Act of Parliament and now alleadges that the saids Commissioners did unjustly repell this Defense proponed for singular Successors within the said Shire that they ought not to be lyable for any part of the said Imposition having Acquired their Rights long after the same and before any diligence was used upon the said Act of the Committee It was answered that there was no injustice there because this being a publick Burden imposed upon a Shyre by Authority of Parliament it is debiâ—um fundi and affecteth singular Successors especially seing the Act of the Committee of Estates was Ratified in the Parliament 1641. which Parliament and Committee though they be now Rescinded yet it is with expresse Reservation of Privat Rights acquired thereby such as this The Pursuer answered that every Imposition of this nature though by Authority of Parliament is not debitum fundi but doth only affect the Persons having Right the time of the Imposition whereanent the minde of the late Parliament appeareth in so far as in the Acts thereof ordaining Impositions to be uplifted during the troubles Singular Successors are excepted It was answered exceptio firmat regulam in non exceptis such an exception had not been needful if de jure singular Successors had been free It was
was alleadged that the Executions of the first Summons were new and by ocular inspection false and craved the Pursuer might abide thereby who refused and so being without an Execution on the first Summons but having an Execution on the second were null The Pursuer craved them to be Transferred instatu quo but prejudice to the Defender in the cause to alleadge no Process because the first Execution was wanting The Lords refused to transfer but some were of opinion that a new Summons in eadem causa would be sufficient to make the Inâ—ibition effectual being raised on the Summons of Registration of a Bond others thought that albeit the Style bear that Inhibitions were not granted but upon fight of the Summons execute yet it was ordinar to give it on an unregistrate Bond or a Charge to enter Heir Execute though there was neither Decreet nor Dependence and therefore though Executions be put on to get these raised yet they are not adhered to but now used so that this Summons though without Execution yet might be transferred and thereon Executions might be used and thereby the Inhibition stands valid which was the more clear way for albeit Summons bear to cite to such a day next to come and so ordinarily cannot be used no citation being thereon within the year yet the Lords special warrand may allow a Summons to be sufficient for citation thereafter as well as they may give other priviledges Janet Shand contra Charles Charters Ianuary 13. 1665. CRichtoun of Castelmain and Crichtoun of St. Leonard granted a Bond to Iohn Shand and Herren his Spouse the longest liver of them two and their Heirs c. With a Clause for Infeftment whereupon there was an Appryzing led in Iohn Shands lifetime against one of the Debitors thereafter Iohn Shand charges the other Debitor for payment after the Charge Iohn Shand gives in the Appryzings to be allowed and after his Death his Wife takes Infeftment upon the Appryzing the Bond being now produced before the Lords in an Exhibition pursued by Ianet Schand as Heir to Iohn Shand. There is a competition for delivery betwixt Ianet Shand as Heir to Iohn Shand as being Heritable and Charles Charters as having right from Herrein Iohn Shands Relict as being moveable It was alleadged by the Heir that the Sum became Heretable by the Superveening of the Appryzing It was answered that there was a Charge after the Appryzing which returned the Bond to be moveable It was answered that the Charge was not against the Partie whose Lands was Appryzed but against the other Party 2ly The Charge could only return the Bond to its first condition before the Appryzing So that the Bond being since 1641. the Relict is excluded and the Charge cannot bring her in 3ly Albeit it could yet after the Charge the Defunct returned to his Heretable Right by obtaining that Appryzing allowed which allowance the Relict produced and took Infeftment so that these last Acts being upon the Real Right the Heir must be preferred and therefore the ground of preference of the Executor or Heir is the will of the Defunct either to make use of his Heretable or Moveable Right which is still ambulatorie and in his power and whatever Right he last makes use of evidences his choise and according thereto the Right is either Heretable or Moveable but here he did last make use of his Real Right by allowance of the Appryzing after the Charge which the Relict homologat by taking Infeftment conform It was answered for the Creditor of the Relict that this being on Debt though due by many Debitors The Charge against one did sufficiently show the purpose of the Defunct to make use of his Right and the Charge doth render the Bond simply moveable and doth not return to the condition it was before the Appryzing To the 3. passing from the Charge must either be express or a Deed of evident consequence but the allowance of the Appryzing is not such which might be done only ad hunc effectum that if the Appryzer should pass from his Charge the Appryzing might revive and be secure The Lords found the Sum Heretable Charles Charters contra a Skipper Eodem die CHarles Charters having fraughted a Ship to Queensburgh by Charter Partie The Skipper was to ly so many lye dayes and to bring a Fraught thence he returned without full Fraught whereupon Charles refuses full payment and being decerned by the Baillies of Leith to pay the rest he Suspends on this Reason that the Skipper ought to get the Fraught only proportionally to the Loading and offers to prove the third part less then the full Loading brought home and that the Skipper could not have his full Fraught unless he instruct that he intimat to the Factor at Queensburgh to whom he was direct of his coming and that he lay his lye dayes and after Intimation to the Factor to give him any Ware he had he took Instrument or protested thereon The Lords found he ought to prove the Intimation ut supra by Witnesses but required no Protest or Instrument thereon Edgar contra Edgar January 17. 1665. ISobel Edgar pursues for 4000 merks provided in her Mothers Contract of Marriage by this Clause whereby her Father having married her Mother to his second Wife oblidged him and the Heirs of the first marriage which failzing his Heirs and Executors to pay to his Bairns of the second Marriage 4000 merks albeit there were but one of them and if there were more the same Sum to be divided among them the Portions of the Male Children to be payed at their age of 21. and the Femal at the age of 18. And to pay them five of each hundreth after his Death till the Terms of payment Ita est the Heirs of the first Marriage failzied by decease and there was four Bairns survived of the second Marriage whereof two died before they attained to their age mentioned in the Clause and now there remains but two the Pursuer and her Brother who is become Heir whereupon she alleadges that she hath the benefit of the whole 4000 merks It was answered for the Brother that he hath right to the half because he is a Bairn of the Marriage as well as she and albeit he be become Heir yet that takes not away his Share by this oblidgment as a Bairn of the second Marriage 2ly Albeit his being Heir would exclude him yet the Portions of the two that are deceased having become Heirs by there survivancy transmit the same to their nearest of kine and so he and the Pursuer are equally nearest of Kin. The Pursuer answered that the Heirs of the first Marriage having failled the Clause stands now as if it had been conceived thus that the Father had oblidged himself and his Heirs which comprehends all Heirsâ— to pay to the Baiâ—ns of the second Marriage which must be understood of Bairns beside the Heir because the Heir is constitute Debitor and so cannot be
Title to Consideration as to this Point whether Vitious Intromission as it is an universal passive Title died with the Intromettor or if it might be pursued against his Representatives they ordained the Parties to be heard thereupon which being Reported this day The Lords found that no personâ— as representing a Defunct could be lyable universaliter upon that Defuncts Vitious Intromission but only for the true value of his Intromission and that either by Action or Exception upon this Consideration that albeit â—uch Titles have been oft times Libelled and sometimes Sentence thereupon when none opposed yet there had never been a Decision nor Interlocutor for it and that the passive Title being poenal sapiens naturam delicti non transit in haeredes delinquentis in quantum penale for they thought it were of dangerous consequence if Persons might be lyable not only to their immediat Predecessor but to their Goodsire Grandsire or Fore-grandsires vitious Intromission but if the vitious Intromission had been Established against the Defunct in his own time it would be sufficient against all his Successors Otherways after his death they could not be put to purge the Vitiosity or to shew the manner or the Warrand of his Possession But it was not determined if Action had been intented against the Defunct and he dyed before Sentence whether his Heir would be lyable there being different Cases as to that Point which required different Considerationsâ— as if the Defunct dyed after Probation or if after Litiscontestation when at least the particulars were condescended on and the Defunct compearing alleadged nothing to purge or if the Pursuit were de recenti and not long delayed but the Defunct dyed the Pursuer doing all Diligence or if Diligence were not used but the matter lay over in which case it seems litle respect could be had to the intenting the Action only and it would be as litle questionable that if Probation were led the Defunct compearing it would be as valid against him as if Sentence were obtained the midle Cases are more dark But none of them were comprehended in this Decision Iames Thomson contra Binnie Eodem die THere being a Decreet obtained against Binnie his Creditors finding him at Linlithgow secured him and he found two Burgesses Caution as Law will who being conveened for payment of the Debt alleadged absolvitor because they were only in common Form Obliged as Cautioners as Law will which doth not import judicio sisti judicatum solvi but judicio sisti aut judicatum solvi Ita est They sisted the Party for whom they were Cautioners and put him in the Provosts hands who put him in Ward and Protested to be free conform to an Instrument produced It was answered non relevat because they only sisted him judici but not judicio they ought to have presented him in the Court when that Cause was called and the Pursuer was not obliged to know or take notice what they did otherways which might be by way of Collusion The Lords found the alleadgence Relevant for there was no Collusion condescended on providing the Defenders prove by the Witnesses insert iâ— the Instrument that it was so Acted For they thought that if the Cautioners put the Debitor in Ward at any time during the Process the Pursuer was not prejudged For if he insisted in his Process and upon not presenting of the Defender Protested the Cautioners would either then alleadge that he was in Prison or otherwayes it would import Collusion Mr. Iohn Hay contra Sir Iames Dowglas Eodem die MR. Iohn Hay of Haistoun and Sir Iames Dowglas having both Rights of Appryzing of the Estate of Smithfield did agree that Sir Iames should have three parts and Mr. Iohn one and did obtain a Decreet at both their Instances for removing a Tennent from some Aikers but Sir Iames Laboured and did Sow the whole Mr. Iohn did thereafter Sow as much Corn upon the Sown Land as would have sown his quarter and now pursues an Intrusion against Sir Iames who alleadged absolvitor because Mr. Iohn was never in natural possession and offered to give the 4. part of the Rent the Aikers payed before The Pursuer answered that the removing of the natural Possessor was equivalent as if Mr. Iohn had been in natural Possession of his Quarter and therefore the offering to him the Rent was not sufficient yet he was willing to accept the Rent for this year so as Sir Iames would devide for time coming The Lords found that in this Process they could not compel Sir Iames to devide but sustained the Process ad hunc effectum that Mr. Iohn should have the 4. part of the Cropt paying Sir Iames the Expences of Labourage Dam Margaret Hume contra Crawford of Kerse Eodim die DAM Margaret Hume having charged the Laird of Kerse who was Cautioner for the Earl of Lowdoun for her Liferent that she had out of the Estate of Lowdoun He Suspends and alleadges that the Charger ought to assign him seing the Bond wants a Clause of Relief whereby he will have difficulty to have Relief of the other Cautioners bound The Lords found that they could not compel the Charger to assign but in so far as of her own consent she would Canna contra Eodem die THere was a Disposition of some Tenements in Dumbar containing this provision that the Buyer should pay such a sum of Moneyâ— to a Creditor of the Sellers under the pain and penalty that the said Disposition should be null Infeftment followed upon the Disposition and the Land is now Transmitted to singular Successors who pursuing for Mails and Duties It was alleadged for the Creditor by the Reservation that this Reservation being a real Provision the Creditor must be preferred to the Mails and Duties ay and while the Sum be payed It was answered first That this provision was neither in the Charter nor Seasine and any Provision in the Disposition could only be Personal and could not affect the Ground nor singular Successors seing no Inhibition nor other Diligence was used on it before their Right 2ly Albeit it had been a Provision in the Investiture yet it could have no Effect against the Ground which canâ—not be affected but by an Infeftment and upon a Provision neither Action nor Poynding of Annualrents nor Mails and Duties could proceed It was answered that real Provisions must necessarly affect the Ground and there can none be more real than this not only being a condition of the Disposition but also containing a Clause Irritant The Lords having first ordained the Infeftment to be produced and finding that the Seasine proceeded upon the Precept in the Disposition without Charter being within burgh the Lords found that the Provision could give no present access to the Mails and Duties until the Clause Irritant were declared or that it were declared that they should have like Execution by vertue thereof against the Lands as if it were in the hands of the first Buyer which
his Relict who being provided by her Contract of Marriage to certain Lands with an Obligement that they should be worth 2400. merks yearly here Husband did thereafter during the Marriage grant her a Tack of the whole remanent Lands he had then with a general Assignation and Disposition omnium bonorum the Tack bears to be for Love and Favour and that the Lady may be in the better capacity to aliment his Children and bears 20. pound of Tack Duty in case there be Children and a Duty equivalent to the Rent of the Land if there be none the entry to the Tack is at the next Term after the granting thereof and not at the Husbands Death Upon this it was alleadged for the Lady that she ought to be preferred to the Mails and Duties of the Lands in question by her Tack cled with Possession by her Husbands Possession before contracting of thir Creditors Debt which must be understood her Possession stante matrimonio and by her own Possession after her Husbands Death before Chisholms Apprizing or Infeftment It was alleadged for Chisholme that the alleadgance founded upon the Tack ought to be Repelled First Because it is a Donation betwixt Man and Wife null of it self nisi morte confirmetur and so is still ambulatory and in the Husbands power during his Life and is in the same case as Bonds of Provision granted to Children and keeped by their Father which being still in his power any Debt Contracted after would be preferable thereto So here this Tack being in the Husbands power the Contracting of a Debt thereafter is preferable thereto and is an Implicit Revocation thereof 2dly This Tack being a most fraudulent latent and clandestine Deed betwixt Man and Wife whereupon nothing followed in her Husbands Life the Creditors having no way to know any such thing and having Contracted bona fide are Insnared and Defrauded thereby and the Lords having Declared that in regard they had Reponed the Lady against a former Decreet She should now Dispute her Right of the Tack as in a Reduction against which this would be an unquestionable Reason that it is a latent fraudulent Contrivance containing a Disposition omnium bonorum It was answered for the Lady to the first That Donations betwixt Man and Wife are not by Our Law and Custom null but are valid a principio unless they be actually Revocked and albeit Implicit Revocations has been Sustained by Dispositions or Infeftments of the same Lands to others yet never by a Personal Bond or Contracting of a Debt posterior To the second The Ladies Right can never be Interpret in fraudem creditorum there being no Creditors the time of the granting thereof and the Husband being free and Incapacitat by no Law an Infeftment of the remainder of his Estate to her so Cautioned as this is is both legal and favourable and albeit in the same there be a Disposition omnium bonorum which cannot reach to Goods acquired after the Debts yet the Tack is valid utile per inutile non vitiatur 3dly Albeit this Tack bear to be a Donation and for Love and Favour yet it is neither Fraudulent nor Revockable because it is donatio remuneratoria granted by the Husband who was obliged to make up the Joynture Lands contained in the Contract of Marriage to 2400. merks of which they came short of four at the beginning and other four have been Evicted It was answered for Chisholme the Creditor that this alleadgance was no ways Competent against him who is a Creditor contracting bona fide but the Lady ought to pursue her Son as Representing his Father for fulfilling her Contract or at least till that be declared against the Heir who is the only competent Party the Creditor must Possess conform to his Right 2dly Whatever was the Husbands Obligement the Husband hath not granted this Tack in Remuneration or Satisfaction thereof but expresly for Love and Favour without mention of any other Cause It was answered that the expressing of Love and Favour which may relate to the general Disposition cannot exclude other Causes and albeit it make the Tack a Donation yet it is well consistent to be a Remuneratory Donation which is not Revockable The Lords found the Alleadgance Relevant that this was a Remuneratory Donation and that there was also much wanting of the Contract of Marriage and found it competent against this Apprizer and superceeded to give answer to the other Points that if it were not proven Remuneratory whether it could be Reduced as latent and fraudulent at the Instance of posterior Creditors or as being in the Husbands power was indirectly Revocked by Contracting of the posterior Debt having no more Estate to burden with his Debt Boil of Kelburn contra Mr. Iohn Wilkie Eodem die BOil of Kelburn having gotten a Commission from the Presbyterie of Irving to uplift some vaccand Stipends he gave Bond to pay to them 850. pounds therefore and being thereafter Charged by Mr. Iohn Wilkie Collector of the vaccand Stipends Kelburn payed him 600. merks whereupon Mr. Iohn gave Kelburn his Discharge of these vaccand Stipends and of his Bond to tâ—e Presbyterie with absolute Warrandice of the Discharge especially bearing to relieve and free him of the Bond to the Presbyterie thereafter Kelburn was Decerned to make payment of that Bond after a long Debate Mr. Iohn Wilkie compeared whereupon Kelburn Charged Mr. Iohn to pay him the 850. pounds with Annualrent and Expencesâ— upon the Clause of Warrandice Mr. Iohn Suspends on these Reasons First That he was Circumveened never having read the Discharge 2dly That Clauses of Warrandice however conceived are never extended further by the Lords then to the Skaith and Damnage of the Party Warranted which if it be Componed for never so little the Warrandice reacheth no further then the Composition and it can never be extended ad captandum lucrum ex alterius damno so Kelburn having gotten Stipend worth 850. pounds he cannot seek the same back again but only the 400. pound he payed out It was answered that albeit general Clauses of Warrandice be so Interpret yet this is an express and special â—action to relieve Kelburn of this Bond which if it had been per se would have been valide although without an onerous Cause and cannot be lesse valide having so much of an onerous Cause The Lords did take no notice of the Reason of Circumvention Mr. Iohn being known to be a provident Person but Restricted the Warrandice to the 400. pounds received by the Suspender and Annualrents thereof and the Expences of Plea against the Presbyterie and found it no ways alike as if it had been a Paction apart but being a speciality in a Clause of Warrandice it was to be Interpret accordingly pro damno interesse only Lady Braid contra Earl of Kinghorne Eodem die THere is a Bond 10000. pounds granted to the Earl of Buchan Principal and the Earl of Kinghorne Cautioner to umquhil
him and all danger and that he would be loath to bid him do any thing would do him harm whereupon he did Subscribe as VVitness and saw not the Tutor Subscribe at all nor saw not his Name put to the VVrit at that time and that this was not at the Barns of Towy the time of the Lairds Death as the Date of the Paper bears but at Achready five weeks thereafter Ferguson Deponed that Captain Barclay having been his Tutor he induced him to VVrite over the Bond of 100000. Pounds whereof he had formerly gotten a Draught from Iames Midletoun Notar wherein Debitor Creditor Sums and Date were blank and that he filled up Umquhâ—â—â— Towy Debitor and the Captain Creditor and the Sum 100000. Pound and put in a Date as if it had been before the Lairds Sickness albeit it was truly after his Death and that the Captain shew him Towies Subscription in a Letter and caused him feinzâ—e it to the Bond as near as he could and likewise Depones that the Captains Brother was the other VVitness but that he saw not what the Deponent had done nor knew not thereof He also Deponed that he filled up the Date and insert the VVitnesses in the Disposition of the Estate of Towy at the Captains desire and made the Date to be at the Barns of Towy at the Lairds Death albeit it was done at Achready about a Month or twenty days thereafter and that there was no Subscription put thereto at that time but that the Captain told him that he would get the Tutor to put his Hand to it thereafter and that the Deponent refused to Subscribe VVitness because the Tutors Name was not thereat Upon these Testimonies both these VVitnesses and Steel who was formerly out upon Bail were put in Prison Henderson contra Anderson November 18. 1669. HEwat having made a general Disposition of his whole Goods and Geir to Anderson and thereafter having Disponed to Henderson his Creditor Henderson pursues Anderson for Reduction of his Disposition as being fraudulent in prejudice of Creditors without any equivalent Cause Onerous contrare to the Act of Parliament 1621. against fraudulent Dispositions The Defender aâ—leadged that the Reason was not Relevant upon the said Act because Hewat and Anderson were not conjunct persons and because his Disposition buir an Onerous Cause viz. for Sums due to himself and for 2000. Merks and other Sums for which he was Cautioner for Hewat and gave in a condescendence of the particular Sums and offered not only to Depone thereupon himself but to astruct the same by the Oath of Hewats Creditors to whom he payed The Pursuer answered that albeit ordinarly Dispositions amongst persons not conjunct bearing Causes Onerous were sufficient yet this Disposition being manifestly fraudulent in that it is omnium bonorum which the Receiver thereof could not but know to be in prejudice of the Disponers other Creditors to whom there was nothing left and so is particeps fraudis and likewise the Sum of 2000. Merks which is the only Cause specially exprest being instructed to be false by Discharges of the most part of that Sum by the Creditor to Hewat himself the remainder of the Cause being general ought to be instructed not by Andersons Oath but by sufficient Probation at least the verity of the Debt by Hewats Oath and the payment thereof by the Oaths of Hewats Creditors to whom it was payed and that it wa payed by Anderson before the Disposition at least that he was bound for payment thereof before the Disposition The Defender answered that Dispositions of Moveables are valide without any VVrit especially before any Diligegence done by the Pursuer and if these who acquire Moveables were obliged to instruct the Cause otherwise then by their own Oaths all Commerce would cease and the Defender having taken a Disposition in VVrit can be in no worse case then if he had none The Lords having considered the Defenders condescendence found that what waâ— due to the Defender himself by Hewat before the Disposition should be sufficiently instructed by Anderson's own Oath but as to what was due to him or payed by him for Hâ—wat after the Disposition and before any Right or Diligence of Hendersons that the same should also be allowed being instructed by Howats Oath and these who received the Sums and that accordingly Anderson should accompt for the whole Goods he meddled with and pay the superplus thereof to Henderson the Pursuer over and above the saids Articles The Creditors of Cowper and Balmerino contra My Lady Cowper November 25. 1669. THe Deceast Lord Cowper having made a Disposition of his whole Estate in Fee to his Lady and thereby having excluded the Lord Balmerino his appearand Heir therein Balmerino being unwillingly to Enter Heir to Cowper before he knew whether the Disposition would stand or not moves some of Cowpers Creditors and some of his own Creditors having Charged him to Enter Heir to Cowper to insist in the Reduction of the Disposition made to the Lady as being done by Cowper in lecto agritudinis It was alleadged for the Lady no Process at the Creditors of Cowpers Instance First Because they insist only upon Personal Bonds granted by the Lord Cowper and have no real Right to the Land and so cannot Reduce a real Right but upon a real Right So till they have Apprized the Lands they have no Interest 2dly Albeit Cowpers Creditors might Reduce the Disposition as betwixt conjunct Persons without an onerous Cause yet not upon the Reason ex lecto because that is a priviledge particularly competent to Heirs but not to Creditors as they are Creditors unless by real Diligences they state themselves in place of the Heir and so make use of his Right and Priviledge It was answered for the Pursuers that in that they were Creditors they had sufficient interest to crave it to be declared that the Estate of Cowper should be Affected with Apprizings upon Cowpers Debts due to them notwithstanding this Disposition which is all the Effect of this Reduction and as they may without any real Right Reduce or Declare as aforesaid upon the Act of Parliament 1621. against fraudulent Dispositions so they may declare that any Disposition done on Death-bed as it could not prejudge the Heir so it cannot prejudge the Creditors of the Defunct or his appearand Heir but that they may affect the said Estate with their Legal Diligences It was answered for the Defender that she repeats the former Defense And further alleadges that she is content to take off the interest of Cowpers own Creditors and to Declare that the Disposition shall be burdened with their Debts but adhered to her Defense against Balmerino's Creditors who though they produce an Apprizing yet it is posterior to the Summons and their Personal Debts can be no sufficient Title nor is there any produced It was answered for Cowpers Creditors that the Declarator in their favours was no way sufficient nor would not give them
Apprizing but not by the Messenger being produced as a Title in a Process the same was not Sustained without the Messengers Subscription or his Executions but the Party was remitted to prove the Tenor thereof December 1665. Mâ—culloch contra Craig An Apprizing was found to be satisfied by Intromâ—ssion not only within the years but also within the three years added by the Act betwixt Debitor and Creditor though the Apprizing was led long before that Act Ianuary 20. 16â—6 Clappertoun contra Laird of Torsonce Here it was also found that a part of the Lands Apprized being sold irredeâ—mably by the Apprizer were Redeemable within thrâ—e years and that the singular Successor was only comptable for the Rents thereof and not the Apprizer who had sold the same before the Act. An Apprizing led upon several Sums of one whereof the Term of payment was not come the Apprizing was â—ound null as to that Sum but whether it would be null in totum or whether it would be valide to carry the whole Right of the Lands as that Sum had never been in or if a proportional part of the Land effeiring to that Sum would be free of the Apprâ—izing the Lords decided not but were of different Iudgements February 16. 1666. Sharp of Houstoun contra Glen An Apprizing was found extinct as being satisfied by the Debitor and retired by him with a blank Assignation thereto lying by him at his death though his Son thereafter filled up his Name therein which was instructed partly by the Sons Oath which was found not sufficient to prove alone and partly by Witnesses ex officio one of which who proved most clearly was his Brother February 27. 1666. Creditors of the Lord Grâ—y contra the Lord Gray An Apprizing on a Bond bearing a Sum to be payable without Requisition was found valide without either Requisition or Charge of Horning Iuly 21. 1666. Thomson contra Mâ—kitrick An Apprizing was found extinct as to a Party in whose favours the Apprizer granted a Back-bond bearing that the Apprizing should not be prejudicial to that Parties Right which was found Relevant against a singular Successor viz. The Kings Donator having right to the Apprizing by Foreâ—aulture Iuly 31. 1666. Earl of Southesk contra Marquess of Huntly An Apprizing was found satisfied within the Legal by Intromission and no part of the Martinmas Rent was ascribed to a Tercers Right not being served though she gave Tack to the Apprizer he having Entered on the Debitors Possession December 21. 1666. Zeaman contra Oâ—â—phant An Apprizing led against an appearand Heir as specially Charged to Enter Heir was preferred to the Infeftment â—f the next apparent Heir after the Heir Charged his death or the Infeâ—tment of their singular Successor granted after the matter became Litigious albeit the Apprizer from the apparent Heir Charged was never Infeft nor Charged the Superiour upon the Appâ—izing neither was the apparent Heir himself Infeft but that the Superiour might be Chaâ—ged at any time after the apparent Heirs death and albeit the next apparent Heirs could not Enter Heirs to the former apparent Heir Charged but to his Predecessor to the effect they might Reduce or Redeem the Apprizing led against the former apparent Heir February 6. 1668. Iohnstoun contra Erskin An Apprizing was found Redeemable from the eldest Son and apparent Heir of the Debitor within ten years for the sums he truly payed out by the Act of Parliament 1661. albeit his Father was living the time of this Process Iune 19. 1668. â—urnet contra Nâ—smith An Apprizer since 1652. pursuing the rest for his part of the Duties as coming in with them pari passu by the Act 1661. betwixt Debitor and Creditor his Apprizing was â—ound not to be effectual till the allowance thereof were Registrate conform to the late Act of the same Parliament anent Registration of allowances but that it required no determinate time to Registrate but whensoever Registrate it would be effectual as to all Rights not compleated before Registration Iuly 17. 1668. Steuart contra Murraâ—â— An Apprizing on an Assignation to a Cautioner or for his behove Apprizing for the whole sum without deduction of that Cautioners part was not found null in totum but Restricted to the Sum truly due being within the Legal Iuly 22. 1668. Iohnstoun of Sheins contra Arnold An Apprizing and Infeftment thereon granted by the Exchequeâ— of course without notice when the King by Forefaulture was imâ—ediate Superiour was found not to supplie a Confirmation or to exclude the Donator of the Forefaulture pursuing a Removing on a posterior Gift December 9. 1668. Earl of Argile contra Stirling Apprizing with a Charge against the Superiour does not exclude the Liferent Escheat of the Vassal against whom the Apprizing was led without consideration whether the Superiour was in culpa by not obeying the Charge Iune 28. 1667. Dowglat contra Lisk An Apprizer having at several times Apprized on several Sums and Entered in possession by the first Apprizing before the secoâ—d was led was found to impute his whole Intromission to the first Apprizing that thereby it might be satisfied within the Legal The Apprizer was also found comptable for what sums he received for a part of the Lands sold by him within the Legal but for no greater price and a joynt probation was refused though it was in the Highlands the Apprizer offering to prove by Witnesses above exception and the Lords ordained both the Feears to be produced and the greatest prices to be proven that they might choose what Rate to â—ollow Ianuary 14. 1669. Mckenzie of Puglasâ— contra Ross of Auchnacloich An Apprizing led against one Charged to Enter Heir who dying un-infeft his Sisters as Heirs to his Grand-Father to whom he was Charged to Enter Heir were â—ound to have the Right of Reversion of the Appriâ—ing albeit they were not Heirs to their Brother who was Charged to Enter Heir but dyed un-infeft Ianuary 1â— 1669. Iohnstoun contra Erskin Lord Lyon An Apprizer having Charged the Superior was found not thereby to become Vassal so as by his death the Lands would â—all Waird but by the Death of the Party against whom the Apprizing was led unless the Apprizer when he Charged the Superior had presented a Chatter with an offer of Money and a Bond for what â—urther the Lords should modifie for the years Rent and had put the Superior in culpa aut mora in not Infefting the Apprizer and that whether the Superior required the same or not February 9. 1669. Black Donator by the Duke of Hamilâ—oun contra French Vide Liferent Dowglas contra Lâ—â—k An Apprizing was found extinct by the Intromission of him to whom the Apprizer granted Back-bond declaring the Apprizing to be to his behove and that against a singular Successor who thereafter obtained Disposition and Inâ—eâ—tment upon the Apprizers Resignation Iuâ—y 12. 1670. Kennedy contra Cuninghame and Wallace An Apprizing posterior was preferred to a prior Appriâ—ing being less
Lands and exprest A Clause of Conquest providing the Goods to be conquest and acquired during the marriage to the Children of a second Marriage was found to be understood of the Goods as they were at the Defuncts death and that he might dispone of or burden them during his life at his pleasure and therefore a Bond granted to the Children of the first Marriage was found valide against the Children of the second Marriage to affect the Goods acquired during that Marriage February 9. 1669. Cowan contra Young and Reid A CLAVSE IRRITANT in a Reversion being committed was found not to be null but to be restricted to the damnage of the Granter so that if the Wodsetter would give as much or had offered the same before the Reverser had closed bargain with another the clause irritant would be sustained the Wodsetter paying in the superplus February 12. 1667. Earl of Tillibardin contra Murray of Aâ—chterâ—yre A Clause irritant in a Back bond after a Reversion discharged bearing that in payment of such sums the Acquirer should denude himself it being done within such a time and if not then done to be null ipso facto without declarator was found not to exclude Redemption after that Term before declarator which was found necessary in this case February â— 1667. Inter â—osdem A Clause irritant on not payment of the Back-tack-duty was found not to be comprehended in that clause of the Act Debitor and Creditor November 26. 1662. Sawer contra Rutherfoord A Clause irritant on not payment of the Back-tack-duty was found valide unless purged by payment at the Bar Ibidem A CLAVSE OF SVBSTITVTION in an universal Legacy providing the Fathers free Goods to two daughters and falling of either of them to the other the one dying the portion was found to accresce to the other without necessity of her confirming her deceassed Sisters Testament â—ure accrescendi December 5. 1665. Helen Hâ—â— contra Maxwell A Clause of Substitution upon the Margent of a Bond contrary the Substitution in the Body to wit by the Granâ—er of the Bond himself who exprest that he had filled up the date and Witnesses and mentioned not that he had filled up the marginal Note And the Witnesses insert deponing that they remembered not that they did see that marginal Note though holograph was not found to be of the date of the Bond nor of any date before the Granter thereof was on death-bed therefore on all these Grounds joyntly it was found null as to the heir here the parties had accorded February â—8 1667. Laird of Dury contra Gibson A Clause of Substitution in an Assignation to a Bond of 6000. merks whereof 4000. merks to the Cedents eldest Son and 2000. merks to Wiliam and Ianet his youngest Children and in case of the eldests deceass providing the other two to his part Ianet dying before Robert and he also dying after without Issue Ianets heir was found to succeed as heir of provision to Robert in her half of his part though she dyed before Robert and the clause did not substitute her and her heirs but only mentioned her self Ianuary 5. 1670. Innes contra A Clause in a Bond to be comptable for the profite of an Office and stating such a party Iudge in case of difference was found to be an effectual submission not only as to the subscriber but as to the accepter and not to terminate with a year and to this effect if that person determined not being required or determined wrong the Lords would hear and rectifie the accompts themselves February 3. 1669. Bâ—sâ—wel contra Lindsay of Wormistoun A CLAVSE DE NON ALINANDO otherways the contraveeners right should be void and the next heir have place being insert in the original Charter and Seasine ad longum and also iâ— the heirs Reâ—our and Seasine was sound to annul the Contravceners Infeâ—tment in favours of the next heir and in consequence to annul the Rights of appryzings from that heir February 26. 1662. Viscount of Sâ—â—rmount contra the Crediâ—ors of Aâ—nandalâ— A Clause in a Disposition of Tailzie de non alienando in common form with this addition that it should be leisom to the Feear and heirs of Tailzie to sell diâ—pone or Wodset such of the Lands â—ominatim to affect and burden the same for payment and satisfaction of the Disponers debtâ— This addition was not found to restrict the Feear or heirs of Tailzie to dispone only so much of these Lands as wâ—re sufficient to pay the Defuncts debts the Clause not running in these Terms but that they might dispone the whole so that the Disponers debt were paid therewith and needed not alleadge that the debt was as great as the price they got lanuary 20. 1669. Lady Kilbirnie contra the heirs of Tailzie of Kilbirnie and Schaw of Grâ—â—nock renewed Fâ—bruary 3. 1669. Inter cosdem A Clause in a Bond obliging many parties conâ—unctly and severally without a clause of Relief was found to import mutual Relief ex natura reâ— Iune 28. 1665. Monâ—â—th contra Anderson COAL was found to be carried by the common clause of pertinents against a party expresly inâ—eâ—t in the Coal-heughs of the Lands Ianuary 30. 1662. Lord Burly contra Sym. COGNITION of Marches betwixt Vassals by Witnesses adduced before the Sheriff or by Arbiters was found valide albeit the Superiour was not called nor consenting but so that the Superiour should not be prejudged in case the Fee fell in his hand by Ward or Nonentry February 8. 1662. Lord Torphichen contra A COLLEDGE was found not excluded from setting long Tacks as being comprehended under beneficed Persons but their obligement to renew a Tack perpetually was found not obligatory unless there were an equivalent Cause onerous for which the obligement was granted Iuly 13. 1669. Colledge of Abâ—rdene contra the Town of Aberdene COMMAND or Warrand of a Servant taking off Furniture in his Masters Name was presumed to have been known to the Merchant and not to oblige the Servant though he gave Ticket acknowledging the Receipt in his Masters Name but not obliging himself to pay being pursued thereon after 19. years and after his Masters death unless it were proven by his oath that he had no Warrand or applyed not the Goods for his Masters use November 17. 1665. Howison contra Cockburn Command or direction was found probable by Witnesses being a part of a Bargain for Grassing an Horse Ianuary 29. 1667. Scot contra Gib Command or Warrand was inâ—eâ—â—ed by the presence of him who had Commission to do an Act and did not hinder or contradict the doing thereof by others who therefore were presumed to have Warrand from him February 23. 1667. Lord Renâ—oun Iustice Clerk contra Laird of Lambertoun THE COMMISSARS OF EDINBVRGH were not found to have right to confirm the Testament of a Defunct dying out of the Countrey on a Voyage not being away animo remanendi this was stopped till further hearing on the Petition
the Whitsâ—nday at which the Buyer was to Enter February 22. 1670. Murray of Auchtertyre contra Drummond A Disposition of Lands and universal Legacy both contained in one Infeftment in which there is a Sum provided to Children not being particularly annexed either to the Disposition of Legacy the Disposition of Lands being found null as being in a Testament the universal Legacy was found burdened with no part of the Provision seing by the Nullity of the Disposition the Children had Right to their Portion of the Lands which exceeded the Sum they were provided to February 1. 1671. Pringle contra Pringles A Disposition granted by a Person who was insolvent and thereafter notoriously Bankrupt was not reduced as not proceeding upon a necessary cause or as being a preference of one Creditor to another none having done diligence in respect the Disposition was granted for a Bargain of Victual sold and delivered a Month before the Disposition in question whereby the Disponer was alleadged to become Bankrupt but it was not decided whether a notorious Bankrupt could after he was so known prefer one Creditor to another when none of them had done diligence Iuly 20. 1671. Laird of Birkenâ—â—g contra Grahame of Craig A Disposition of Lands was found to imply an Assignation to the Reversion of a former Wodset and that it needed no intimation the Infeftment on the Disposition being Registrate though a posterior Assigney had first redeemed November 18. 1664. Guâ—hrie contra Idem December 5. 1665. Beg contra Beg. DIVISION of Lands and a Muire betwixt Co-heirs was reduced upon a considerable inequality though not near the half value and though the division proceeded upon the Reducers oâ—n Brief of division December 2. 1669. Monteith of Corruber contra Boid A DONATION was not presumed by a Mother to her Child by giving out Money in her Name with power to uplift and re-imploy in so far as she was debitor to the Child but pro reliquo December 20. 1661. Fleming contra her Children Donation of Aliment by a Mother to her Son who had no other means was presumed to Liberate him from Repetition but was not found so against his Step-Father for the years after his Marriage Iune 25. 1664. Melvil contra Ferguson Donatiâ— inter Virum uxorem was found Revockable albeit it was not a pure donation but in lieu of another quo ad excessum seing it was notabilis excessus November 20. 1662. Children of Wolmet contra Lady Wolmet and Dankeith her Husband Doâ—atio inter virum uxorem was sustained to recal the acceptance of an Infeftment in satisfaction of the Wifes Contract February 12. 1663. Relict of Morison contra his Heir Donation betwixt Man and Wife Revockable was found not to extend to a Contract of Marriage though made up during the Marriage there being none before November 22. 1664. Mâ—gil contra Ruthven of Gairn Donatio inter virum uxorem was found not revockable if it were granted upon consideration of what fell in by the Wife after her former Provisions though that would also have belonged to the Husband jure mariti yet might be the ground in gratitude of a Donation Remuneratory November 23. 1664. Halyburtoun contra Porteous Donatio inter virum uxorem being in question where there was no Contract of Marriage but an Infeftment of all that the man then had and after a second Infeftment but stante matrimonio The Lords found that the first was valide there being no Contract before but they reduced the second finding no remuneratory provision of the Wife to answer both November 23. 1664. Inter eosdem Donatio inter virum uxorem was found not to reach an Infeftment of Lands to warrand and make up the principal Lands in the Contract such a Rent albeit there was but a personal Obligement in the Contract and that the Obligement to Infeft in Warrandice was therein satisfied and extinct November 24. 1664. Nisbit contra Murâ—ay A Donation was presumed of Aliment by a Goodfire to his Daughters Child who was long in his House and after the Mothers death continued still without any agreement with the Father Iuly 21. 1665. Ludquharn contra Geight Donatio inter virum uxorem was found relevant to recal a Bond granted by a Hâ—â—band to his Wife bearing that he thought it convenient that they should leave a part and therefore obliged him to pay a Sum yearly for her aliment albeit it bear also that he should never quarrel or recal the same as importing a Renunciation of that priviledge February 6. 1666. Living stoun contra Beg. Donation betwixt Man and Wife was found to extend to a Charter bearing Lands and a Miln where the Contract of Marriage bear not the Miln and that it was not as an Explication of the parties meaning and so was revocked by a posterior disposition of the Husband to another February 5. 1667. Countess of Hume contra the Tenents of Oldâ—aâ—â—us and Hog Donation betwixt Man and Wife was found not to extend to a donation by a Husband to his Wifes Children of a former Marriage of her Goods belonging to him jure mariti and so was not revockable as done to the Wife though to her Bairns at her desire Ianuary 15. 1669 Hamiltoun contra Baynes A Donation by a Husband to his Wife by a Tack of his whole Lands not Liferented by her and bearing for Love and Favour and for enabling her to Aliment her Children and bearing a small duty in case there were Children and the full Rent if there were none was found valide as being remuneratory to make up the defect of the value which by Contract her Liferent Lands were obliged to be so much worth Superceeding to give answer wheither the Tack would be null at the instance of Creditors lending Sums after the Tack as latent and fraudulent if it were not proven remuneratory or wheither a donation betwixt Man and Wife is null and pendent as a Bairns Portion till the Husbands death and if the borrowing thereafter would prejudge the same there being no Lands left un-liferented thereby Ianuary 26. 1669. Chisâ—holm contra Lady Braâ— Donation betwixt Man and Wife revockable was found not to extend to Wife Subscribing her Husbands Testament by which her Liferent Lands were proâ—ided to their Daughter which was not â—ound alike as if it had been in favours of the Man himself who is naturally obliged to provide his Daughter Iuly 12. 1671. Murray contra Murray Donation by a Man to his Wife by a great additional Iointure where she was competently provided before was found not to be taken away by a posterior Testament made in lecto providing a less additional Iointure without mention of the former and being conditional that the said last addition should be at the Testators Fathers disposal if he returned to Scotland and he having returned and having Ratified the fiâ—st additional Ioynture the same was Sustained Iuly 18. 1671. Countess of Cassils contra Earl of
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
Ley. An Executor was not liberat by a decreet of exoneration as to the Creditors not called who needed not reduce the same neither yet by exhausting by payment of lawful debts instructed by Writ before intenting of the Pursuers Cause unless sentence had been first obtained against the Executor who cannot prefer one Creditor to another but according to their diligence November 11. 1664. Iohustoun contra Lady Kincaid An Executor ad non executa was found to have no place where the former Executor had obtained Sentence albeit no payment and albeit he was Executoâ— dative and a meeâ— Stranger November 7. 1666. Down contra Young An Executor was found obliged to depone upon the kinds quantities and prices of the Goods in the Inventary at the instance of an Executor ad omissa Notwithstanding of the Oath given by the Executor at the Confirmation Iuly 18. 1667. Ker contra Ker. The Executor of a donator of Liferent was found to have right to the bygones of that Liferent before the donatars death and that the donatars Heir had only right to the Liferent after the donatars death albeit there was no declarator establishing the Liferent in the donatars person before his death Ianuary 28. 1671. Kiry contra Nicolson Executors having obtained decreet for the defuncts debt the Testament is thereby execute although they have not obtained payment and after the death of one of them the decreet doth not accresce with the Office to the other but the one half belongs to the executors of the deceast Executor Iune 22. 1671. Gordoun contra Laird of Drum CO-EXECVTORS being Confirmed one dying the Office accresceth to the rest and all benefit that follows thereon but the defunct executor being nearest of kin his part as nearest of kin is Transmitted to that Executors nearest of kin and does not belong to the surviving Executors February 12. 1662. â—ells contra Wilkâ—e Co Executors after obtaining Sentence may pursue for their shares severally without concourse or calling the rest Ianuary 25. 1665. Menzeis contra Laird of Drum EXECVTORS CREDITORS were not excluded by the defunct debitors alleadging compensation upon an Assignation to a debt due by the defunct albeit anterior to the Confirmation or diligence yet posterior to the defuncts deceass whereby one Creditor is preferred to another which cannot be done either by the Executor or by the Debitor but according to their diligence February 8. 1662. Crawfoord contra Earl of Murray An Executor Creditor was not found lyable for diligence where the confirmation was questionable whether it was by a competent Commissar or not December 10. 1664. Goldsmiths of Edinburgh contra Haliburtoun An Executor creditor long since confirmed was found lyable for no diligence to other creditors but to assign them next to their own payment And as to the future The Lords resolved to consider the Motives on both hands and make an Act of Sederunt thereanent Iuly 18. 1671. Harlaw contra Hume EXECVTIONS of arrestment or the like on the Sabbath day are null by Exception as was found February 1â— 1663. Oliphant contra Dowglas of Dornoch In Executions giving of a coâ—y was found an essential requisite and in Executions requiring Registration that the same must be exprest in the Execution Registrate else the same is null although it be added ex post facto by the Messenger and offered to be proven to be true Iuly 28. 1671. Keith contra Iohnstoun EXCEPTIONS which do not acknowledge the Libel do not free the Pursuer from proving of the Libel but both parties must prove hinc indâ— Iuly 24. 1661. Mitchel contra Hutcheson The Exception of the Pursuers lossing the Plea by beating the defender in the Session-House was Sustained without necessity to alleadge effusion of Blood but the Lords determined not whether they would admit the probation of the Fact before themselves or assign a long Term that the defender might insist criminally before the Iustices that it being there cognoâ—ced it might be here repeated in termino Iuly 29. 1692. Harper contra Hamiltoun An Exception being proponed without denying the Libel or quantities therein the Defender succumbing in probation the Libel was holden as acknowledged and proven albeit the Exception of its own Nature did not acknowledge the same but it was recommended to the parties to accord December 13. 1664. Lord Rollo contra his Chamberlane EXHIBITION of defuncts Writs by his Heir was sustained not only for such as belonged to the defunct but for such also as were in his Possession at his death Ianuary 10. 1665. Reid contra Reid Exhibition of Writs which the Defender before intenting of the cause had and fraâ—dâ—ully put away was sustained by Witnesses to prove the having in respect of the defenders fraud in indeavouring to transvert the Right yet not thereupon simply to decern to Exhibite but only unless the defender refuâ—e to tell quo modo desâ—â—t possidere Iuly 14. 1666. Fountain and Brown contra Maxwel of Nethergate Exhibition of an Assignation out of the granters hands was found not probable by Witnesses albeit the granter was alleadged to have received it as Agent for the Pursuer December 14. 1666. Fairly contra Creditors of Dick. Exhibition of compt Books being craved in a compt betwixt the Successors of two brethren not to instruct but to make up the charge in respect of their near interest and commerce and that they were co-partners the Books were ordained to be put in the Auditors hands and if thereby co-partnery appeared or trust as Factor for others they should be exhibite to the other party to frame his accompts by otherwayes to be given back and not to be seen by the pursuer Iuly 7. 1668. Kelict of Patoun contra Relict of Patoun EXHIBITION AD DELIBERANDVM was sustained for all Writs wherein there was any clause in favours of the Pursuers Predecessors and for Writs made by him to persons in his Family Wife Children and Servants on which no Infeftment followed December 6. 1661. Telzifer contra Forrester and Scâ—aw of Sornbeg The like November 12. 1664. Galbraith contra EXTRACT of a Bond Registrate was found not to Instruct the debt against the Heir of a party whom the extract bear to have subscribed it but only against the consenters to the Registration The like unless it were instructed that the Defenders Predecessor truely subscribed the Writ February 7. 1662. Aâ—cheson contra Earl of Errol Here Witnesses ex officio were admitted to instruct by way of Reply Extract of a Bond Registrate against a party living consenting by the Procuratory was found not to instruct or prove against those who consented not unless other Adminicles to astruct the â—â—uth thereof were adduced Iune 24. 1664. Hay Tailzeor contra Hume of Blackburn A FATHER as Tutor of Law was found lyable to pursue for the Annualrent of his Childs Mothers third of moveables February 4. 1665. Beg contra Beg. A Father was â—ound lyable to receive his Son in his Family and to entertain him as
suâ—eable to their condition but for the superplus and if the provision was exorbitant not only the Wife but even the Husband is lyable in quantum lucratus est December 23. 1665. Inter eosdem A Husband receiving a sum provided to his Wife for her use Ornaments or Abuilziaments or any other use she pleased excluding the Husband and his jus mariti was found to exclude the Wifes Executors seing the husband sufficiently furnished his Wife and the Granter of the Provision freely made payment to the husband February 12. 1667. Executors of the Lady Piltoun contra Hay of Balhousie A Husbands Escheat falling by being denunced as husband for his inâ—erest upon his Wifes Bond not subscribed by him and only at the Mercat Cross of Edinburgh he residing out of the Countrey was found not to be Liberate by the dissolution of the Marriage February 25. 1668. Lord Almond contra Dalmahoy A Husband was decerned for his Wifes debt as being holden as confest upon refusing to give his oath of Calumny whether he had just reason to deny what his Wife had declared upon Oath the Decreet for that reason was Reduced February 26. 1668. Grahame contra Touris and her Husband A Husband having Married a Taverner who after Proclamation of the Marriage had bought twelve Hogsheads of Wine and the Pursuer having intented Action against her and him as Husband she dyed within four moneths after the Marriage the Husband delivered the Keys of the Sellar to the Magistrates and Inventared the Wines and abstained from intromettâ—ng the Husband was not found lyable for what was vended before the Marriage nor for what remained unfold after his Wifes death but the burdeâ— of probation was put on the Husband to prove what was vended before and what remained after the Wifes death otherwise to pay the whole November 25. 1668. Andrew contra Corse A Husband Ratifying his Wifes Disposition to her Children by the first Marriage though after Proclamation it was â—ound valide and not Revockable as Donatio inter virum uxorem February 15. 1669. Hamiltoun contra Banes HYPOTHECATION of the profites for the Rents was found to prefer a Town setting their Customes as to the duty due by a Subâ—acksman therfore though not to the Town but to the principal Tacksman and though a Creditor of the Tacksmans had arrested the Sub-Tack-duty for the Tacks-mans debtâ— the Town using no diligence till they were called in a double Poynding yet were preferred Ianuary 31. 1665. Anderson c. contra the Town of Edinburgh Hypothecation of the Fruits of the Ground for the Rent of the same year was found valide to the Setter of a Fishing against the Doâ—atar of the Tenents Escheat who had intrometted therewith and was found lyable to restore Iuly 4. 1667. Cumming of Alter contra Lunâ—dâ—an IGNORANTIAâ—IVRIS non excusat etiam in mulieribus as that a Bond moveable in the Wifes Name belonged to the Husband Iune 16. 1664. Murray contra IN AN IMPROBATION a party user of a Writ challenged but not produced by himself was admitted to abide thereby qualificate viz. That he used it as a Writ produced by another which was in his favours and knew nothing of the Forgery thereof Iuly 24. 1661. Laird of Lambertoun contra Earl of Levin and Kennedy Improbation of a Writ by Exception being proponed and an Act extracted the Defender was not admitted to alleadge nullities quia exceptiâ— falsi est omnium ultima Iuly 3. 1661. Peacock contra Baillie In an Improbation testimonies were published to both Parties and the Defender was made closs Prisoner Iuly 26. 1661. Lambertoun contra Kennedy Improbation was found necessary to be continued though it bear an express priviledge without continuation which was thought to pass of course contrary to form February 7. 1662. Laird of Auchinbreck contra Mcleree In an Improbation after Articles indirect for improving and Articles approving and a Dispute in Writ thereon and Witnesses hinc indâ— examined on all before discussing the Relevancy and the Testimonies closed and new Articles hinc inde and a Dispute in Writ thereon the Parties were heard viva vocâ— and then all advised Iuly 11. 1662. Laird of Lambertoun contra Earl of Levin and Kennedy In an Improbation a Writ was improven though two Witnesses in it were alive and examined thereon and deponed it was his Subscription the other deponed it was like his when he was young seing the Writ was null for want of the Designation of the Writer and other presumptions against it and seing none of the Witnesses remembred that they subscribed or that they saw the Party subscribe so thaâ— their Testimonies were held no more but as de credulitate that this was their subscription seing no â—â—n could possibly swear but that this might be â—enâ—ied by some other not remembring of his subscription neither was holograph Writs found sufficient to astruct and many Witnesses Deponing these were the hand Writ of the Parties yet seing they Deponed not that they saw these written by the Party it was but like the other that these were so like his â—and as that they believed it to be the same which therefore would have proven if there had not been contrary presumptions and evidences proven here some of the Lords were unclear that this Improbation could absolutely â—mprove as false but that the Writs never having been in the Creditors hands and long keeped up by the producer suspecta fama and many presumptions contrary proven it might conclude the Writs suspect and not authentick and probative but not to be forged or false which infeâ—s pâ—nam saâ—guinis and ought to be on clearer probation then such presumptions Iuly 14. 1662. Inter eosdem Improbation of Rights of Lands was found not to be sustained upon the Advocates concourse without the Kings special Warrand albeit it was of Kirklands erected wherein the Pursuer stood infeft as Superiour till he were Redeemed by the King by the Act 1637. and 1661 anent Erections Iune 24. 1664. Laird of Prestoun contra Alred Here some of the Lords remembred the like done in the case of Hopes Goodson when he was Advocate Improbation being Sustained by exception against an assigney it was found sufficient that the Assigney abode by the Writ delivered to him as a true Writ and that he knew nothing to the contrary and producing his Cedent to bide by it who though alleadged to be Bankrupt yet was not obliged to find caution nor go to Prison but only to enact himself to appear judicially whensoever any thing that might infer the falshood of the Writ was referred to his Oath and his being holden as confest should be effectual to prove both against Cedent and Assigney Ianuary 3. 1666. Grahame and Iack contra Bryen Improbation being sustained by exception and Terms assigned to the Defender to improve and to the Pursuer to abide by the Write after the Term was come the Defender was admitted to propone payment by Bill the Act not
Prisoners seing they had actually received this Prisoner but their keeping him in a private house ten dayes while a Treaty was continued with the Creditor was found not to infer disobedience of the charge or payment of the debt Iune 8. 1670. Cheap contra Magistrates of Faulkland Magistrates were not found lyable for the debt of a Rebel escaping who was arrested in their Tolbooth but the arrestment was not formal and whereas it bear that upon Caption the Messenger came to the Tolbooth and commâ—nded the Prisoner to continue in Prison as being arrested for that debt and that in presence of the Iaylour and that intimation was made to the Magistrates seing the intimation to the Magistrates was altogether improven and the arrestment in presence of the Iaylour contained three Witnesses whereof one affirmed and the other denyed and a third was dead and the Messenger was then Excommunicate for Crimes Iune 18. 1670. Hay contra Magistrates of Elgin Magistrates were found lyable for the debt of a Rebel escaping out of their Tolbooth albeit the Tolbooth had â—our locked Doors without one another and that the Rebel had gotten in some Masons Tools and broken up all the Doors in the Night seing they had not Chains and Bonds locked upon the ouâ—er sides of the Doors to which the Rebel could not reacâ— albeit their custom was very ancient to put on Cat-bonds only upon Prisoners imprisoned for Crimes February 11. 1671. Will contra Town of Kirkaldâ—â— Magistrates were not found lyable for the debt of a Person Incarcerate in their Tolbooth whom they had suffered to go free up and down their Streets several times whereupon the Creditor took Instruments and Protestation seing the suffering the Prisoner to go out was necessary to mendicat his Bread being altogether indigent and that he went once to the burial of a Child of his own and that he continued in Prison and died there February 14. 1671. Bain contra Baillies of Culross Magistrates were not found lyable for the debt of a Rebel whom they suffered to come out of Prison with a Guard to go to the Kirk or to the Fields for health or any other necessary cause as to time past in regard of their common custome so to do but that in time coming they should let none go out except upon great hazard by sickness and upon Testificates upon Oath and when other application could not saâ—ely and timeously be made to the Council or Session Iune 14. 1671. Town of Breichen contra Town of Dundee MANDAT or Warrand of a Servant taking off Furniture from a Marchand for his Master and giving his Recept and bearing that he had received such Furniture in Name of his Master and for his use was found not to oblige the Seâ—vant to pay nor yet to instruct that he had warrand but tâ—e warrand was presumed as known to the Merchant unless it were proven that the Servant did otherwayes imploy the Furnishing than to his Masters use and specially in the case where the Master was dead long ago November 17. 1665. Howâ—eson contra Cockburn Vide Command Vide Wiâ—e February 4. 1665. Paterson contra Pringle IN MAILS AND DVTIES the not calling of the Deâ—enders Master was not â—ound Relevant as in a Removing nor may the Tennents alleadge peremptorly on their Masters Right which is jus tertiâ— but they should have intimate to him to compear for himself and they may yet Suspend on double poynding and call the Party and their Master Iune 10. 1665. Hume contra In the Mails and Duties of a House the damnage sustained by the Tennent by the fall of a Neighbouring house was found to be allowed Ianuary 2. 1667. Hamiltoun contra MAINTAINANCE of August and September 1650. being destinate for the provision of the Army and assigned to these who advanced the provisions they were not found to be excluded by any subsequent quarterings Iuly 27. 1665. Rae contra Heretors of Clackmannan Vide Devastation here singular Successours were not liberate Iuly 28. 1665. Inter eosdem The Maintainance appointed to be uplifted by Bogie by the Act of Parliament 1661. which excepts singular Successors who bought the Lands was found not to extend to an appearand Heir who brooks by an appryzing which as to him is Redeemable within ten years for what he payed for it here it was not alleaged that the payed sums equivalent to the worth February 8. 1668. Weyms contra Laird of Tâ—lquhon Renewed Ianuary 20. 1669. Inter eosdem The Maintainance 1648. to be upâ—â—fted by Bogie was found not to extend to these who had exemption upon consideration of burning by the King and Parliament 1651 though that Parliament was Rescinded and though all exemptions were excluded by Bogies Commission seing by the Act Rescissory private Rights done by that Authority were excepted Iuly 21. 1668. Weyms contra Campbel of Edenample Maintainance for the year 1648. was found to burden Lands though they were now in the â—ands of singular Successoâ—s who had acquired the time of the Act Iaâ—uary 23. 1669. Weyms contra Frazer of Toâ—lie MARRIAGE pursued by a Donatar was not excluded because the Pursuer instructed not that the Lands held of that Superiour nor held Ward seing he disclaimed not nor by the Superiours Subscâ—ibing Witness in the Vassals Contract of Marriage after the Donatars Gift it was also found that the Marriage might be pursued both Realiter personaliter against the Vassal to pay February 25. 1662. Arbuthnet of Fiddes contra Keith Marriage being decâ—rned by the Commissar to be solemnized upon a Bond granted by a Man to a Woman bearing a Child to be gotten under promise of Marriage and it being alleadged that the Woman had been unchast since which as it would annul so much more hindeâ— the Solemnization of the Marriage and it being alleadged that the Child born after was presumed to be the same man's who got the first and so obliged to solemnize the Marriage The Lords found the presumption held not where there was no formal Marriage and so the Woman behoved to prove the second Child to be this mans Ianuary 31. 1665. Barclay contra Baptie Marriage of an Heir was â—ound due as to the single avail albeit the Heir was Married before his Predecessors death by a fraudulent precipitation to exclude the Superior from the Marriage he being Married when his Predecessor was moribundus without previous Treaty or Proclamation the Predecessor dying within some â—ew â—ays and showing no other sufficient cause of the said precipitation but to exclude the Superiour here were adduced the Testimonies of Skeins explications upon Quoniaâ— atachiamenta de maritagio bearing that this was praxis forâ— in his time and expressing three Decisions thereof February 20. 1667. Lord Thesauâ—er and Lord Advocat contra Lord Colvâ—â— Marriage vide Contract Vide Clause December 20. 1664. Young contra Buchannan MELIORATION of a Liferenters House by her was â—ound to oblige the Feear after her death in quantum Itucrâ—s est by a
his Estate that she might not be abused in her Marriage by her Mother or her Freinds the same was sustained after the Pupils age of eleven years though the Mother was unmarried and the Daughter valiâ—udinary February 6. 1666. Laird of Dury contra Lady Dury A Tutor was found to have a year to imploy sums not bearing annualrent and not to be obliged to uplift sums where the Pupil was fully secured or where on a sudden the Debitor break but was found lyable for all Diligence according to the Debitors condition by Horning Caption Arrestment Poinding and Appryzing of the Debitors Estate which should be known to him and not for Horning only Iuly 9. 1667. Steâ—in contra Boyd In a Tutor compt the Tutor was not found lyable for the Services he got to the Pupils Tennents in kind and that where he was super-expended a Decreet might be at his instance against the Pupil on the Pupils own Process Ianuary 11 1668. Grant contra Grant A Tutor was found lyable to compt as Tutor and not as Pro-Tutor on production of a Writ under his hand designing himself and acting as Tutor Testamentar without necessity to the Pursuer to produce the Testament December 2. 1668. Sâ—atoun contra Sâ—atoun A Tutor was found lyable for the Annualrent of his Pupils sums which were in responsal Debitors hands but not to re-imploy the same upon annualrent in respect the Tutor dyed durante tutela and that what annualrents he had received his Successors were only lyable for the same and the annualrent thereof from the time the Pupil past pupillarity it being sufficient to lift and imploy the annualrents of Pupils sums at any time during the ordinary course of the Tutory afâ—er the Pupils passing pupillarity Iuly 9 1669. Kintor contra the Heirs and Successors of Logan of Coatfiâ—ld This was stopped on the Purâ—uers Bill till it were furder heard upon the grounds of the first Decision A Tutor having cited his Pupils Friends on both sides that â—t might be declared by the Lords that the Pupils Lands were â—racked above the true value and that they wâ—re not able to pay their Rents without casting the Land waste no party appearing the Process being considered by the Lords they granted Commission to Gentlemen in the Countrey to try the matter of Fact and report February 5. 1670. Tutor of colzâ—an contra nearest of kin of the Pupil A Tutory granted to two and bearing them to be joyntly was found void by the death of either Ianuary 17. 1671. Drummond of Riccartoun contra Feuars of Bothkenneth TVTOR DATIVE of a furious person was found not to exclude the nearest Agnat as Tutor of Law to be served quandocunque though the Idiot was necessitate to pay upon the Tutors citation to make forthcoming Ianuary 21. 1663. Mr. Iames Steuart and Robert his Tutor Dative contra Spreul Vâ—â—â—MUS HAERES being gifted was found to have no effect till there be be a declarator thereupon in the same way as in Bastardy Iuly 30. 1662. Laird of Balnagoun contra Dingwall The like Iuly 31. 1666. Crawfoord contra Town of Edinb VSE OF PAYMENT of a duty to a Minister for Teinds and his discharge for the whole Teinds for a long time was found sufficient against him who had the Tack and Prorogation of these Teinds until interruption by Citation or Inhibition thogh the duty was very smal the Minister was but stipendiaâ— having that quantity allocat out of these Teinds Ianuary 19. 1669. Earl of Athol coâ—tra Robertson of Strowan VSVRY was not inferred by a Creditors taking a Tack for his furder security for so much Victual or 20. shilling less than the 〈◊〉 at the setters option that abatement being for the setters pains and hazard in getting in the price November 23. 1664. Scot contra Laird of Barefoord VICCARAGE was not found due out of Yeards which were aparâ— of the Chanons Portions which had never paid Viccarage Iune 30. 1668. Minister of Elgin contra his Paâ—ochioners THE VIOLENT PROFITES of an Ox Spâ—ilzied in Labouring time was found to be 5. shilling every day during the Labouring time February 28. 1668. Lord Iustice Cleâ—k contra Hume of Linthil VITIATION of a Contract of Marriage diminishing the Tocher and Ioyntuâ—e by the Husband and Father after the marriage was found not to prejudge the Wife who consented not but her Right was extended as before the Vitiation in prejudice of the Husbands Creditors infeft by him albeit the Contract being Registrate the Viâ—â—ation could not not appear to the Creditors when they lent their Money Iune 11. 1670. Hunter contra The Creditors of Peter VITIOVS INTROMISSION was not â—lided because the Defunct dyed Rebel at the Horn and so there was nothing in bonis defuncti unless the Defender alleadged he had the gift of Escheat ante motam litem February 17. 1662. Gray contra Dalgarno Vitious Intromission was retrinched to single avail because the Defender entered in possession by a disposition of the moveables though no delivery or possession was in the Defuncts life February 27. 1662. Chalmers contra Dalgaâ—no Vitious Intromission was purged by the Intrometters confirming within year and day after the Defuncts death the Executry being his Wifes albeit after intenting of the pursuers cause Ianuary 28. 1663. Stevinson contra Ker and others Vitious Intromission was purged by a Disposition and Instrument of Possession in the Disponers Lifetime though the Defender judicially acknowledged there was no natural possession Iuly 6. 1664. Brown contra Lawson Vitious Intromission was not sustained after the Intrometters death against any representing him where there was nothing done to instruct it in his Life further than Quo ad valâ—rem but not as an universal passive Title Iuly 10. 1666. Cranstoun contra Wilkison Vitious Intromission was elided because the Intrometter had warrand from the Donator of the Defuncts Escheat thogh there was no Declarator seing the Warrand and Intromission was ante notam litem Iuly 4. 1665. Innes contra Watson Vitious Intromission was not inferred by intrometting with 50. pound the Intrometter having after his Intromission confirmed himself Executor and omited that sum but was only found lyable for the sum it self February 26. 1668. Râ—oth contra Cowan Vitious Intromission was found not receivable by Defense against an Assignay viz. That the Cedent who was Creditor to a Defunct was vitious Intrometter with his goods and so Debitor the Assignation being for an onerous cause Ianuary 20. 1671. Captain Ramsoy contra Henrison WARD was found not to fall by the death of an Appryzer who had Charged unless he had put the Superiour in culpa by preseâ—ting a Charter to be subscribed by him and offering a Sum with a Bond and Caution for what more the Lords should modifie for that years Rent and that therefore the Ward fell by the death of him against whom the appryzing was led February 9. 1669. Black contra French Ward being gifted by the King the Donatâ—r was found to have