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
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
Annat it was not confirmed and could be extended to no more but the half of 1654. The Pursuer answered to the First That the Presbytrie had no power to dispose of that Steipend by the Act of Parliament 1644. because the Defunct was only Suspended ab officio which makes not the Kirk Vaick maxime seeing the Defunct was Reponed by the Synode and never desposed and as to the Decreet at the Defenders Instance it was given without calling the Defunct whom he was in mala fide to misken To the second That the Act of Prisbytrie cannot prove unless it had been subscribed by the Defuncts own hand matters of Steipend not being the proper work of Presbitries but proper for civil Judges especially seeing the Defunct was Suspended for Preaching for the Engagement 1648. Against which that Presbytrie protested and so the Act being Eairtester is the more suspect To the Third The Annat not being in bonis defuncti but indulged by the Law to the Wife Bairns and nearest of Kin to the Defunct Minister and so originally their Right though upon occasion of his Service the same needs no Confirmation and the Defunct having right proprio jure to the whole Year 1653. Surviving both Terms Anne signifying a Year further must be the heal Year one thousand six hundred fifty and four The Lords Repelled the first Defense and found the Suspension of the Minister not to make the Steipend Vaccand and had no respect to the said Decreet whereto the Defunct was not called They found also the second Defense not probable by the Act of Presbytrie and found that the Anne needed no Confirmation but that the Anne did only extend to half a Year more then the Defunct had right to proprio jure Laird of Lamirtoun contra Alexander Kennedy Farl of Levin Eodem die EOdem die The Laird of Lamertoun upon the Improbation mentioned Iuly 24. Did then desire that Alexander Kennedy producer of the six Bonds quarrelled might be examined in presentia and his Person Sequestrated and Secured and warrand granted to examine new Witnesses The Lords superceided to give answer till they considered the Process and now having considered the same and finding that the direct manner of Improbation was not Competent because the Witnesses were dead and that the Pursuer had insisted in the Indirect manner and had obtained warrand for Inspection of the Dispositions taken in the Cause both of Alexander Kennedy himself and of the Witnesses then adduced and had given in Articles of Improbation and the Defenders Articles of Approbation Replyes and Duplyes both which being considered by the Lords they found grounds of Suspitionâ— and therefore granted all the desires of the Supplication and Ordained Alexander Kennedy to be keeped close Prisoner in the Tolbooth till he were re-examined and Witnesses hinc inde to be examined by some of the Lords in the Vaccancy upon what either Parties should desire which seemed periâ—ent to the saids Lords Examinators Dame Elizabeth Fleming contra her Children November 14. 1661. DAme Elizabeth Flemming Relict and Executrix to Umquhile Malcome Flemming Merchant in Edinburgh and Tutrix dative to his Bairns having formerly pursued an Action of Exoneration against her Children in which she gave up as an Article of her Accompt a hundred pounds Sterling payed by her to Patrick Scot of Langshaw whereupon she had retired her Husbands Bond and taken a discharge upon the back thereof and had taken her Husbands name therefrom whereanent the Defenders alleadged That this being a cancelled Paper could establish no Debt against them neither could Patrick Scots discharge prove against them that it was a debt restand by their Father and payed since his death as Patrick's Testimony and Oath could not prove much less his Declaration in wri whereupon the Lords had ordained Patrick Scots Oath to be taken ex officio upon the truth of the Debt and when it was payed to him and by whom who having Dâ—poned that it was payed by this Pursuer after her Husbands Death The Lords did allow the Article Now the Cause being wakened at the Pursuers instance and Sir Iohn Gibson now her Husband one of the Clerks The Defenders further alleadged that Patrick Scots oath ought not to have been taken and could not be sufficient to prove against them that this was a true Debt and payed by their Mother but it behoved to be presumed if it was a Debt at all to have been payed by their Father and the Bond cancelled by him and left amongst his writs and found by their Mother there and now after her second Marriage made use of against her own Children albeit she made no mention of it before And therefore the cancelled Bond being no Writâ— subscribed by the Defunct cannot prove nor can Patrick Scot's Discharge or his Oath make it up nor any other thing except the Defenders own Oath or Writ seeing Witnesses are not admitted in cases of this Importance Secondly though it were Evidently and Legally Instructed and Proven yet the Debt was payed by the Mother she can have no allowance of it because she payed Voluntarly not being Tutrix nor Executrix at that time and cancelled it and took a discharge of it and so it is both unwarrantably done and must be presumed to have been of purpose to gift it to her Children out of her opulent Fortune having given above fourty thousand pounds to the second Husband The Pursuer answered That the alleadgances were most Irrelivant for as to the first anent the Probation of the truth of the Debt and payment by the Executrix It is sufficiently proven by the cancelled Bond at which the Witnesses Names are yet standing by Patrick Scot's Discharge and Oath already taken who is a Person inconcerned and above all exception and if need bees it is offered to be proven by many Witnesses above exception who saw the Bond un-cancelled after the Defuncts Death which is abundantly sufficient to take away the Presumption that it was retired and cancelled by the Defunct himself and that such Probation was Legal and Warrantable was formerly found by the Lords of Session upon the 7th of March one thousand six hundred twentie nine betwixt Falconer and Blair where an Executor pursuing the Hetr for relief of a moveable Debt produced only the Defuncts cancelled Bond without a discharge and these same points being alleadged The Lords found that the Action ought to be sustained and the truth of the Debt and the Payment after the Defuncts decease to be proven by the Creditors Oath or after his decease by the Heirs Oath and it is unquestionable That the Lords in matters obscure as to the Probation may ex â—obâ—li officio take all manner of Tryal for finding out the Truth by Oaths of Parties Witnesses or any other manner of way in matters of greatest moment which being here already done and the Testimony so clear and of so unquestionable a Person as Patrick Scot there remaines no doubt but the Debt was
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
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
a price the price would not belong to the Executor or Fisk but to the Heir any sums due for Damnage and Interest not performing a Disposition or upon Eviction belongs to the Heir not to the Executor The Defender answered that this sum is not in the case of any of the former alleadgences neither is the question here what would belong to the Executor but what would belong to the Fisk for Moveable Heirship belongs to the Heir and not to the Executor and yet belongs to the Fisk so do sums without Destination of Annualrents wherein Executors are secluded So also doth the price of Lands when they are de presenti sold by the Defunct The Lords found this sum moveable and belonged to the Fisk and therefore Assoilzied the Defender from that Member also Mr. Ninian Hill contra Maxwel February 5. 1663. MR. Ninian Hill pursues Maxwel as heir to his Father Iohn Maxwel for payment of a sum due to be payed to Maxwels Relict yearly after his death and assigned to the pursuer The Defender alleadged absolvitor because the Pursuers Cedent being Executor her self to the Defunct was lyable for this sum intus habuit It was answered for the Pursuer that this being an annual payment after the Defuncts death it was proper for his heir to pay the same not for his Executor and if the Executor had payed it he would get releif off the heir Which the Lords found Relevant Grahame contra Ross Eodem die THe Parties having Competed upon Appryzings being decided the 24. of Ianuary Wherein the Lords found that none of the Appryzers should come in with him who was first Infeft till first they payed their proportional part of the Composition and Expenses now having considered again the Tenor of the Act of Parliament they found that they behoved to satisfie the whole and that the obtainer of the first Infeftment should bear no share of it that being all the other Appryzers gave â—to got the benefit of the Act to come in pari passu Lenox contra Lintoun Eodem die LEnox being Married to Margaret Mcgie who was an Heretrix she dying Lenox Son was Infeft as Heir to her who dying also without Issue this Lenox as his Brother by his Mother and alleadging him to be appearing Heir to his Brother Lenox in these Lands whereunto his Brother succeeded to their Mother craves Exhibitions of the Writs of the Lands ad deliberandum The Defender Lintoun alleadged absolvitor because his Son being Infeft in the Lands as Heir to his Mother his nearest Agnat on the Fathers side his apparent Heir and â—one on his Mothers side for we have no intrin succession neither holds it with us materni maternis paterni paternis Which the Lords found Relevant and that the Father was apparant Heir to his Son being once Infeft as Heir to the Mother and therefore Assoilzied Lady Carnagy contra Lord Cranburn Eodem die THis day afternoon the Lords Advised the rest of the Defenses proponed for the Lord Cranburn in the Recognition pursued at the Instance of my Lady Carnagy who alleadged first that Recognition was only competent in proper Ward-holdings and not in blench Feu or Burgage these only being feuda recta militaria and all others but fendastra But the Lands of Innerweek are not a proper Military Feu holding Ward being only a Taxed Ward wherein the word Duties is Taxed yearly and the Marriage is Taxed to so much and so is in the nature of a Feu neither was it ever yet found in Scotland that a Taxt-ward did fall in Recognition The pursuer answered that the Defense is not Relevant to rule in our Law being that alienation of Ward-lands without the consent of the Superiour infers Recognition and neither Law nor Custom hath made exception of Taxt-wards which have but lately occurred in the time of King Iames who and King Charles were most sparing to grant Gifts of Recognition whereby there hath been few Debates or Decisions thereanent and there is no consequence that because the Casuality of the Ward when it falls is liquidat and Taxed or the value of the Marriage that therefore the Fee is not a Military Fee wherein the Vassal is oblieged to assist his Superiour in Counsel and in War in the stoutest Obligations of Faithfulness and Gratitude and therefore his withdrawing himself from his Vassallage and obtaining another to him is the greater Ingratitude that the Superior had Taxed the benefite of the Ward and Marriage at low rates which Casualties cannot be drawn to prejudge the Superior of other Casualties but on the contrair exceptio firmat regulam in non exceptis The Lords repelled this Defense It was further alleadged that here was no offer of a Stranger but of the Vassals own Grand-child who now is his apparent Heir in one half of these Lands as being the eldest Son of his second Daughter and Recognition was never found in such a Case The Pursuer answered that albeit the Defender be now apparent Heir to the Vassal Disponer yet the Case must be considered as it was in the time of the Disposition when he had an elder Brother the then Lord Cranburn living and was not alioqui successurus and the Lords had formerly found that an alienation of Ward-lands by the Earl of Cassils to his own Brother albeit he was his nearest of Kin for the time having no Children yet seing he could not be esteemed alioqui successurus or Heir apparent in regard the Earl might have Children therefore they found Recognition incurred The Lords repelled this Defense 3ly It was further alleadged that there could be no Recognition where there was no alienation of the Fee without the the Superiors consent here there was no alienation of the Fee because the Seasine being taken to be holden from Dirletoun of the KING not confirmed was altogether null and therefore Dirletoun was not Divested nor Cranburn Invested for such an Infeftment is ineffectual and incompleat till Confirmation and could never be the ground of Pursuit or Defense against any Party 2ly By such an Infeftment the Superiors consent is a Condition implyed for an Infeftment to be holden of the Superior is null till Confirming and implyes as much as if the Seasine had been expresly granted si dominus consenserit and so can be no obtrusion or ingratitude 3ly Craig in his Dieges de recognitionibus Reports the Decision of the Lords betwixt Mckenzie and Bane whereby they found that the Seasine being unregistrat was null and inferred no Recognition quia non spectatur affectus sed effectus yet that was but an extrinsick nullity much more here the Seasine being intrinsically null The Pursuer answered First That if this ground hold there could be no Recognition except by subaltern base Infeftments holden of the Vassal in which there is far lesse ingratitude there being no new Vassal obtunded nor the Vassal withdrawing himself from his Clientel nor any prejudice to the Superior because subaltern Infeftments
Renunciation of that priviledge of Wifes and it hath been frequently found that minors making faith cannot be restored lesionem conscientia ex juramento violato The Lords having debated the case at large amongst themselves found the Bond null notwithstanding of the Oath for they thought that where the deed needed no Restitution as in the case of minors these deeds are valid but the minor may be restored but in deeds ipso jure null where there need no Restitution an Oath cannot make that ane Legal deed which is none it was winne by a Vot or two many thinking that such priviledges introduced by Custome or Statute might be Renunced and much more sware against but that it were fit for the future that all Magistrats were prohibited to take such Oaths of Wifes or Minors who are as easily induced to Swear as to oblidge and if they did that they should be lyable to pay the Debt themselves Dumbar of Hemprigs contra Lady Frazer Eodem die MY Lady Frazer being first married to Sir Iohn Sinclar of Dumbeath next to the Lord Arbuthnet and last to the Lord Frazer Dumbar of Hemprigs as Executor confirmed to Dumbeath pursues her and the Lord Frazer her Hushand for his interest for delivery or payment of the Moveables of Dumbeath intrometted by her It was answered That she had Right to the half of Dumbeaths Moveables as his Relict and her intromission was within that half It was Replyed that she had only right to third because Dumbeath had a Bairn of the former Marriage who survived him and so the Executory must be imparted It was duplyed that that Bairn was for as familiat married and provided before her Fathers Death and so was not in familia and albeit if there had been any other Bairns in the Family that Bairns part would have accresced to them yet being no other It accresced to the Man and Wife and the Executory is bipartiti The Lords found the Defense and Duply relevant albeit it was not alleadged that the Tocher was accepted in satisfaction of the Bairns Part of Gear unless those who have Right would offer to confer and bring in the Tocher received in which case they might crave a third if the same were not Renunced oâ— the Tocher accepted instead thereof It was further alleadged for the Lord Frazer that he could not be lyable as Husband because his Lady being formerly Married to the Lord Arbuthnet he got the Moveables and his Successors should be â—yable at least in the first place The Lords repelled the alleadgeance but prejudice to the Lord Frazer to pursue the Successors of the former Husband for repetition as accords Mckenzie contra Iohn Ross. Eodem die JOhn Ross having Appryzed certain Lands belonging to Mckenzie there is a Pursuite of Compt and Reckoning intented for declaring that the Apprysing was satisfyed within the Legal It was alleadged that the Appryzer was not Comptable for more of the other Parties Minority then seven years because in the Act of Parliament 1621 Anent Appryzing it is so provided and albeit the meaning of the Act of Parliament was declared to be otherwayes by the Act of Parliament 1641. Yet that Declaration was contrary to the clear meaning by the general rescissory Act 1661. The Lords having considered the Rescissory Actâ— and the Reservation therein of the Right of Private Parties following upon the deeds of these Parliaments In Respect thereof and of the Custome this 20 years the Appryser useing to Compt for all found the Appryser Comptable for the whole Year of the Minority William Blair contra Anderson Eodem die William Blair as Assigny by the Wife and Bairns of Mr. David Anderson by his second Marriage pursues his Daughters both of the first and second Marriage as Heirs of Lyne for Implement of the second Contract of Marriage and the Daughters of the second Marriage offering to Renunce to be Heirs of Line but prejudice of their Provision by Contract of Marriage as Bairns of that Marriage The Assigney insisted against the Daughters of the first Marriage as lawfully Charged c. Who alleadged no Processe because the Provision by the Contract of Marriage insisted on run thus That Mr. David obliged himself and his Heirs-male Successors to him in his Estate but did oblige no other Heirs Ita est there is an Heir-male The Pursuer answered albeit Heirs-male were only expressed other Heirs were not excluded specially seing he bound himself so that the effect thereof would only be that the Heir-male should be lyable primo loco The Lords found the Heir-male lyable primo loco and the Heirs of Line secundo loco and found the Heir-male sufficiently discussed by an apprizing of the Clause of the Contract of Marriage in favours of the Heirs-male they not being Infeft as yet and having no other Right Scots contra Earl of Hume February 19. 1663. THe four Daughters of 〈…〉 Scot pursues an Ejection against the Earl of Hume out of some Lands belonging to them It was alleadged for the Earl absolvitor because he entered into Possession by vertue of a Decreet of Removing given at his instance Anno 1650. It was Replyed that the Decreet was only against the Pursuers Mother that they were never called nor decerned therein The Earl answered First That the Decreet was against the Mother to remove her self Bairns Tennents and Servants and her Daughters were in the Family being then young Bairns and he was not obliged to know them they not being Infeft but having only an old Right whereupon there was no Infeftment for 40. years the time of the Decreet The Lords in respect of the Defense restricted the Processe to Restitution and the ordinary Profits and decerned the Earl to restore them to Possession instantly but superceeded payment of Profits till both Parties were heard as to their Rights for they found that the Decreet of Removing could not extend to their Children and albeit they were not Infeft yet they might maintain their Possession upon their Predecessors Infeftment how old soever seing they continued in Possession Bessie Muir contra Jean Stirling Eodem die THe said Bessie Muir pursues her Mother as Executrix to her Father for payment of a Legacy of 8000. merks left in his Testament subscribed by the Defender and Confirmed by her after her Husbands Death The Defender alleadged absolvitor because she by the Contract of Marriage was Provided to the Liferent of all Sums to be Conquest and albeit she consented to the Legacy it was Donatio inter virum uxorem and for her Confirmation it cannot import a passing from her own Right but only her purpose to execute the Defuncâ—s Will according to Law especially she being an illiterat Person The Pursuer answered that this Donation was not by the Wife to or in favours of the Husband but of their Children which is not revockable and also the Confirmation humologats the same seing the Wife might have Confirmed and Protested to be withont prejudice of her
own Rigt The Lords Repelled the Defense in respect of the Reply Cicil Ruthven contra Hay of Balhousie Eodem die CIcil Ruthven having granted a Bond to David Lamb that thereupon he might Apprize from her an Annualrent whereunto she was Apparent Heir whereupon she having obtained a Decreet and now seeking Adjudication in Lambs Name Lamb produces under his hand a Writ declaring that his Name was but used in Trust that he disclamed the Processe The Lords notwithstanding Sustained Procâ—sse being so far proceeded in respect of the Declaration bearing the Trust and found he could not disclaim in prejudice of the Trust. Lady Swintoun contra Town of Edinburgh Eodem die THe Magistrats and Councel of Edinburgh having granted them to be Debitors to the Lady Swintoun by way of Act conform to their Custom The Lady supplicat that the Lords would grant Letters of Horning upon the said Act whereupon the Magistrats being Cited upon twenty four hours alleadged they were not Conveenable hoc ordine by suiting Letters of Horning upon a Bill but it ought to have been by an ordinary Summons either craving payment or Letters conform The Lords notwithstanding granted Letters of Horning Baillies of Edinburgh contra Heretors of East-lothian and Mers February 20. 1663. THe Baillies pursue these Heretors for so much allowed of the Maintainance of these Shires of the moneths of August and September 1650. And insisting on an Act of Litiscontestation in Anno 1659. Whereby the Defenders having proponed a Defense of total vastation the same was found relevant The Defenders having now raised a review alleadge that they ought not to have been put to prove total Vastation seing Vastation was Notour these Shires being the Seat of the War where the English Aarmy lay which ought to have freed them unlesse the Pursuers had replyed that the Heretors got Rent that year and had been burdened with the Probation thereof 2dly The Order of Sir Iohn Smiths general Commissar and also of the Provisors of the Army bearing the Provisors to have Furnished such Provisions want Witnesses and might have been made up since they were out of their Offices The Lords adhered to the Act and found the Defense of total Devastation yet Relevant in this manner that the Heretors got no Rent and granted Commission to receive Witnesses at the head Burghs of the Shires for each particular Heretor to prove their particular Devastations and Sustained the Order of the General Commissar he making faith that he subscribed an Order of the same Tenor while he was in Office Hary Hamiltoun contra William Hamiltoun February 21. 1663. HAry Hamiltoun pursues his Brother William as behaving himself as Heir to their Father Iohn Hamiltoun Apothecary to pay six thousand merks of Provision by Bond and condescends that William intrometted with the Rents of the Lands of Vlistobe whereunto his Father had Heretable Right The Defender answered that his Father was not Infeft because he Infeft the Defender therein before his Death Reserving only his own Liferent The Pursuer answered that the Infeftment was under Reversion and was Redeemed by the Father which Order though not Declared gave him the Right to this Land and was more than equivalent to an Heretable Disposition cled with Possession which would make the Apparent Heirs intrometting infer behaving as Heir for the Declarator non constituit sed declarat jus constitutum The Lords Repelled the Defense and duply in respect of the condescendence and reply of the Order used 2ly The Defender alleadged absolvitor because those Lands were Apprized from the Defunct and thereby he was denuded and so the Defender could not be Heir therein at least he could have nothing but the Right of Reversion which reacheth not to Mails and Duties The Lords found that unlesse the Defender had Title or Tolerance from the Apprizer the Legal not being expired but the Debitor in Possession his Heir intrometting behaved as Heir the Apprizing being but a Security of which the Apprizer might make no use or but in Part as he pleased Stirling contra Campbel Eodem die THe same last point was found betwixt these Parties and also that the Heirs Intromission with the whole Silver work so comprehending the best of them which is the Heirship was gestio pro haerede Anna Wardlaw contra Frazer of Kilmundi Eodem die ANdrew Wardlaw having a Wodset upon some Lands of the Lord Frarzer The Debitor raises Suspension of multiple Poinding against Anna Sister and Heir to the said Andrew Wardlaw and Frazer of Kilmundi pretending Right by a Legacy from the Defunct to the same Sum. The Heir alleadged that it could be lyable to no Legacy being Heretable The Defender answered primo the Legacy was made in proâ—inctu belli where there was no occasion to get advice of the Formal and Secure way of disposing of the Wodset but the Will of the Defunct appearing in eo casu it must be held as effectual as Testamentum militare in procincâ—u which needs no solemnities 2ly The Heirs Husband hath homologat the Legacy by discounting a part thereof It was answered that no Testament whatever can reach Heretable Rights with us 3ly That the homologation of the Husband cannot prejudge his Wife nor himself quoad reliquum not discounted The Lords found the Heirs had only right except in so far as the Husband had homologat the Legacy which they found to prefer the Legator to the whole benefit the Husband could have thereby jure mariti but not to prejudice the Wife thereafâ—er Iames Aikenhead contra Marjory Aikenhead February 25. 1663. THe said Iames insists for the delivery of a Bond granted to his umquhile Father and Assignation thereto by his Father to him against the said Marjory producer thereof It was alleadged no delivery because the Assignation in favours of the Pursuer was never delivered but keeped in his Fathers Possession which cannot be accompted his Possession seing the Pursuer is a Bastard 2ly The conception of the Assignation is to the Pursuer and his Heirs which failzing to the said Marjory and her Heirs and he being now Minor ought not to dispose of the Sum in her prejudice The Lords Repelled the Defenses against the delivery and found that the Pursuer during his Minority should not uplift the Sum till the Defender were called and had accesse to plead her Interest Adam Hepburn contr Helen Hepburn Eodem die THe Estate of Humby being provided to Heirs whatsoever umquhile Tomas Hepburn of Humby in his Contract of Marriage with Elizabeth Iohnsâ—oun provides the said Estate to the Heirs-male and provides 25000. merks for the Daughters there is a Clause of the Contract Bearing that it should be leisome to the said Thomas at any time during his Life to alter the said Provision or to dispone thereof according to his pleasure thereafter upon Death-bed he Disponed the whole Estate in favours of his Daughter of the Marriage being his only Child Adam Hepburn his Brother as Heir-male intents
Infeftment was only base not cled with Possession and that the Defenders Title was by another Party Possessing and publictly Infeft before his Fathers Death Which the Lords found Relevant Iames Allan contra Iames Paterson Iune 17. 1663. JAmes Allan charges Iames Paterson as Cautioner in an Indenter for a Prentise set to the Charger for five years and insists upon that Article of paying two dayes wadges for ilk dayes absence and subsumes that the Prentise left his Service after the first two years and was absent three years The said Iames Paterson Suspends on this reason that it must be presumed Collusion betwixt the Charger and his Prentise that having gotten the Prentise Fee and not learned him the Trade he had suffered him to escape never making intimation to the Suspender that he might have brought him back to his Service while now that he is out of the Countrey and not knowing where The Charger answered that there was nothing to obliege him to make such intimation neither could a sufficient presumption of Collusion be sustained The Lords found the Letters orderly proceeded either while the Cautioner caused the Prentise Re-enter and serve out his time or otherways payed fifty pound for damnage and interest to which they modified the Charge Margaret Fleming contra Iames Gilleis Iune 18. 1663. MArgaret Fleming being Infeft in an Annualrent of 700. merks out of Houses in Edinburgh in Liferent with absolute warrandice from all dangers perils and inconveniencies whatsomever pursues Declarator against the said Iames Gilleis as Heretor for declaring that her Annualrent should be free of all publick burden since the rescinding of the Act of Parliament 1646. whereby Liferenters were ordained to bear proportional part for their Annualrents with the Heretors The Defender answered the Libel was not Relevant for albeit the Act of Parliament was rescinded the justice and equity thereof remained that whatever burden were laid upon Land shouldly proportionably upon every part therof and every profit forth of it Which Defense the Lords found Relevant and Assoilzied Francis Hamiltoun contra Mitchel and Keith Eodem die SIr Alexander Keith of Ludquharn being oblieged by Bond to Robert Mitchel in Leith for the price of certain Bolls of Victual was arrested in Leith till he found Francis Hamiltoun Cautioner as Law will and both being pursued on the Act raised Advocation on this reason that the Baillies of Leith had unjustly forced him to find Caution as Law will he not being dwelling in Leith nor Leith not being a Burgh Royal but a Burgh of Barony It was answered that the priviledge and custome of the Town of Edinburgh was to arrest within Leith and all other priviledges and pendicles thereof The Lords found that it behoved to be condescended in what place of Leith Ludquharn was arrested for the Peer of Leith was a part of the Burgh Royal of Edinburgh and was served by a Bailie of Edinburgh called the Water Baillie and if he was arrested there it was valid but the rest of Leith is but a Burgh of Barony and in that part thereof the Baillie is called Baron Baillie it were not valid Euphan Hay contra Elizabeth Carstorphine June 19. 1663. THe said Euphan having obtained Decreet against the said Elizabeth for certain Furnitur to her House She suspended on this reason that her Husband was not called The Charger offered to prove in â—ortification of her Decreet that her Husband was 20. years out of the Countrey and she repute as Widow Which the Lords found Relevant George Reid contra Thomas Harper Eodem die THese Parties competing in a double Poinding George Reid craved preference because he was assigned to the Mails and Duties by Thomas Mudie Heretor of the Land Thomas Harper alleadged that he had arrested the Duties upon a Debt owing to him by William Mudy Father to the said Thomas and any Right Thomas had was fraudulent and null by exception by the express words of the Act of Parliament 1621. being betwixt Father and Son without any onerous Cause and he ought not to be put to Reduce in re minima his Debt being within a 100. pound The Lords found he behoved to Reduce conform to their constant Custom in Heretable Rights Ferguson contra Ferguson June 23. 1663. UMquhil Ferguson in Restalrig having a Tack set to him by the Lord Balmerino for certain years his eldest Brother Son as heir of Conquest and his youngest Brother Son as heir of Line competed for the Mails and Duties of the Lands The Lords found the Tack to belong to the Heir of Line albeit it was Conquest by the Defender Mcdowgal contra Laird Glentorchy June 24. 1663. Mcneil having Disponed certain Lands to Mcdowgal wherein he was Heir apparent to his Goodsyrs Brother oblieged himself to Infeft himself as heir therein and to Infeft Mcdowgal at least to renunce to be heir to the Effect Mcdowgal might obtain the Lands adjudged whereupon Mcdowgal having raised a Charge to enter heir Mcneil renunces and thereupon Mcdowgal craves the Land to be Adjudged and Glentorchy Decerned to receive and Infeft him Glentorchy alleadged that he could not receive him because he had right to the Property himself unless the Pursuer condescend and instruct his authors in whose place he craves to be Entered had Right The Pursuer answered that lie needed to instruct no Right nor was he oblieged to Dispute the Superiours Right but craved the ordinar course to be Entered suo periculo with reservation of every mans Right and the Superiours own Right as is ordinary in Appryzings and Adjudications The Defender alleadged that albeit that was sustained in Appryzings where the Superiour gets a years Rent and though it might be allowed in ordinar Adjudications proceeding upon a liquid Debt favore creditorum yet not in such a Case as this where the Vassals apparent Heir Dispones and oblieges himself to Renunce of purpose to Charge his Superiour The Lords found no Processe till the Pursuer instructed his Authors Titles But an Infeftment being produced he was not put to Dispute the validity thereof in this instance Menzeis contra Laird Glenurchy Eodem die THe Daughters of Mr. William Menzeis as Executrix to him pursues Glenurchy for payment of a Bond due to their Father he alleadged minority and Lesion and that he had Reduction thereupon depending The Pursuers answered no Lesion because this Bond being granted to their Father for his Stipend by the Defender who was Heretor of the Land he was not leased because as Heretor he was lyable for the Stipend The Defender answered that his being Heretor could not Obliege him because his Grand-father was then living whose Liferent was reserved in his Disposition who and the intrometters could only be lyable Stipends not being debita fundi and it were of very evil consequence if the Heretor were lyable during the whole life of a Liferent The Lords found that there being a Liferenter the Heretor was not lyable and therefore sustained
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
which the Lords found Relevant and Repelled the Defense but superceeded Execution until some time that the Defender might use any means he could for making this Sum to affect the Land Farquherson contra Gardiner Eodem die MR. Iames Farquherson having obtained a Decreet of Spuilzie against Iohn Gairdiner and others Gairdiner Suspends on this Reason that he medled with the Goods in question as a Souldier in a Party in Arms being then in the Regiment of the Master of Forbes under the Command of the Earl of Midletoun and therefore is freed by the Act of Indemnity The Charger answered that he oppons the Act Indemnifying only these who Acted by Warrand of any Committee of Estates or Commander or other Authority so that it is not Relevant unless the Suspender alleadge that as he was a Souldier in Arms so he had such Warrand and did apply the particulars to the publick use under which he served And it is offered to be proven that he took the Goods lybelled to his own House and made use of them to his privat use The Suspenders answered that this Reason stands Relevant as proponed because it is clear by the Act of Indemnity that all things done under any pretended Authority or Command are Indemnified and therefore there is a special Exception of privat Thefts and Robberies which confirms the Rule as to publick Pilledging in any War and if there were a necessity to every person to instruct the Command or Warrand of his Officer which was not accustomed to be in Writ the whole Act would be elusory so that it is sufficient that the thing was done in the way of a publick War otherwise all that was taken or converted to privat use of those that were either with Montrose or Glencairn might ly open to Pursuits notwithstanding of the Act of Indemnity The Lords after serious Consideration of this as a leading Case found the Reason of Suspension Relevant that the Defender needed not to prove that he had Warrant but that the Warrant was presumed if he proved he Acted with a Party in War against which they would admit no contrary Probation unless it were offered to be proven by the Defenders own Oath that he did without any Warrant converted the Goods to his own privat use Margaret Inglis contra Thomas Inglis Eodem die MArgaret Inglis having obtained a Decreet before the Commissars of Edinburgh against Thomas Inglis for giving her Security of 1000. pounds in Legacy left in her Fathers Testament and for payment of the Annualrent of the said Legacy Thomas Suspends on this Reason that the Legacy being left to be payed the one half at the Chargers marriage and the other half at the Death of the Defuncts Wife buire no Annualrent as neither doth any other Legacy much less this being in diem incertum which is equivalent to a Conditional Legacy For if the Defuncts Wife had Survived the Legatar or if she never Marry nothing will ever be due The Charger answered that this Legacy was in effect alimentar though not expresly left eo nomine and therefore ought to be profitable and that the Lords had been accustomed to give Annualrent in such cases as in the case of the Lady Otter and her Daughters The Suspender answered that the case was far different these being lawful Daughters and their Provisions being in lieu of an Estate of Land and this Charger being but a Bastard and come to that age that she may serve for her Maintainance The Lords considering that the one half of the Sum was payable at the time of the Chargers Marriage being a Condition in her own power and that it was not favourable to put her to a necessity of Marry Therefore they sustained Annualrents for that half but not for the other Brown contra Lawson Iuly 6. 1664. ALexander Brown having obtained a Decreet against William Lawson as vitious Intrometter with the Goods of umquhil William Lawson of New-milns he Suspends and alleadges the Decreet was unjustly given because it beares that he excepted upon a Disposition made by the Defunct for an Onerous Cause and an Instrument of Possession of the Goods before his Death The Charger answered that the Decreet did bear that the Suspender did judicially acknowledge that there was no true Delivery of the Goods The Lords found this collourable Title sufficient to purge the passive Title of vitious Intromission providing the Defender Confirmed within four moneths for they thought the Defuncts Disposition in articulo mortis was rather as a Testament or Legacy in satisfaction of the defenders Debt then as actus inter vivos Iohn Miln contra Hoom. Iuly 7. 1664. JOhn Miln Mason having Charged Sir James Home of Eccles for payment of a Sum of Money due by Bond he Suspended and alleadged that he had the benefit of the Act betwixt Debitor and Creditor as to personal Execution seing he had payed a years Annualrent and had consigned a Bond of Corroboration joyning the rest of the Annualrents to the principal The Charger answered the Suspender could not crave the benefit of the Act because he had not found caution for the principal and annual conform to the said Act for his naked Bond of Corroboration without Caution could not be interpret Security The Lords found the Suspender behoved to give security either by Caution or Infeftment Ogilbie and Grant contra Ker. Eodem die THere being a Charge in the Name of Iames Ogilbie and William Grant contra Mr. Andrew Ker Minister on this ground that by a minut of Contract of Alienation Ogilbie had sold to Ker certain Lands and Ker was expresly Bound by the minut to pay this Grant and others in part of the price of the Land certain Debts due by Ogilbie to them Ker Suspends upon this Reason that he had satisfied Ogilbie and obtained his Discharge Grant answered that by the foresaid Clause contained in the Minut he had acquired right to the Sum in satisfaction of his Debt which Ogilbie his Debitor could not take away without his consent especially seing the Minut took effect and the Suspender by his Missive Letters after the Date of this Discharge Writ to the Laird of Pitmeddin who was Cautioner to Grant that he would satisfie the Debt The Suspender answered that the Clause in favour of Grant who was no Contracter could not give him a Right First Because it was never a delivered Evident to Grant 2ly Because it was but a Mandat whereby Ogilbie the Contracter did order a part of the Sum to be payed to Grant which Ogilbie might recal at his pleasure as he might have annulled the Bargain and destroyed the Writ especially seing nothing had yet followed And as for the Letters they were not Written to Grant but to a third Party The Lords found that seing the Bargain took Effect the Clause in Grants favour was not a simple Mandat but a Delegation whereby Ogilbie constitute Ker his Debitor to be Debitor to Grant his Creditor which needed
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
a Compt by the Debitors own hand writ though not subscribed has been found probative The Lords found that if this had been a current Compt-book it would have been probative but having been only some feu scheduls of Paper found it not probative without subscription albeit it was acknowledged by the Oath to be the deponents hand writ John Boyd late Baillie in Edinburgh contra Mr. William Kintore Iuly 4. 1665. THere being mutual Reductions betwixt Mr. William Kintore and Iohn Boyd as to the Rights of the Lands of Moutlothian Iohn Loyd deriving Right from Mr. Robert Logan to whom Logan of Coatfield with consent of Mr. Iames Raith and who for all Right he had to the Land of Mounlothian disponed the same And Mr. William Kintore having Appryzed upon a Decreet against Coatfield as Cautioner for a Tutor and upon the Act of Caution inhibited It was alleadged for Iohn Boyd that whereas by a former Interlocutor the day of he having objected against Kintor's Decreet that thereby the Tutor and his Cautioner were found lyable to uplift the Annualrent of Sums that were in the hands of secure Creditors which the Tutors had not uplifted and to be lyable for Annualrent post finitam tutelam now he produces a Decision out of Dury Iuly 18. 1629. Nasmith contra Nasmith whereby it was found that a Tutor having uplifted his Pupils Annualrent though very considerable was not lyable for any Annualrent therefore 2ly The reason of the Lords Decision then being that albeit the Tutor was not lyable to uplift and imploy the Annualrent every year as it was due yet he was lyable once in the Tutory but it is offered to be proven that he died two years before the Tutory expired in which time he might both have uplâ—fted this Annualrent and re-imployed it and therefore being prevented by death he ought to be free both of the Annualrent it self and of the Annualrent thereof The Lords having considered the Decision found it so short and not to hold forth fully the Case notwithstanding thereof they adhered to the former Interlocutor and found that Tutors are oblidged to uplift and once in their Tutory to re-imploy the Annualrents of the Pupil albeit the Debitor were secure but if the Case had been of Rents of Lands the Lords thought these ought to have been uplifted yearly and to be imployed on Annualrent but they found the second alleadgance Relevant not to free the Tutor of payment of the Annualrent it self though in secure hands because he ought to have uplifted it and had it ready but found him free of the Annualrent thereof there being a competent time in which he might have given it forth before the Pupillarity past if he had not been prevented by death but ordained Kintore to assigne to Boyd the Right of the Annualrent that he might recover the same from the Debitors It was further alleadged for Kintore that Coatfield the common Author his Disposition to Mr. Robert Logan Iohn Boyds Author was after Kintors Authors Inhibition It was answered that albeit the Disposition by Coatfield to Mr. Robert Logan be posterior yet Mr. Iames Raith had a Disposition of the same Lands anterior who by consenting and joynt Disponing to Mr. Robert Logan the Lands of Mountlothian did in effect constitute him Assigney to his anterior Disposition which is now accomplished by the Adjudication adjudging the Right of the Lands from Coatfildâ— Heirs and thereupon Infeftment has followed by precepts out of the Chancellary for supplying Coatfilds procuratory of Resignation which took no effect in his life It was answered that Mr. Iames Raiths Right being but a Wodset his consent cannot import the transmitting of his Right albeit he joyntly Dispond seing he transmits no part of the Sums in the Wodset and therefore does no more in effect but restrict his Wodset to the remanent Lands and consents that Coatfield should Dispone these Lands to Mr. Robert Logan and so it imports but non repugnantiam and a Provision that he nor his Successor should not quarrel their Right upon his anterior Right Which the Lords sustained Mr. Walter Innes contra George Wilson Iuly 4. 1665. INnes of Auchbuncart being pursued as Heir to his Father upon all the passive Titles alleadged that his Father was denounced Rebel and his Escheat gifted and the Defender had Right or warrand from the Donatar before intenting of this Cause The Pursuer answered non relevat except the Gift had been declared and that the Defenders Intromission had been after Declarator and the warrand but the Intromission being anterior cannot be purged ex post facto The Defender answered that as the confirmation of an Executor excluds vitious Intromission had before the Confirmation ante motam litem so the Gift and VVarrand though without Declarator purges anterior Intromission ante motam litem Which the Lords found relevant Commissar of S. Andrews contra Boussi Iuly 4. 1665. THe Commissar of St. Andrews having charged Hay of Boussi to Confirm his Fathers Testament he Suspends and alleadges his Father had Disponed all his Moveable Goods and Gear to him and so nihil habuit in bonis and offered him to prove that he was in possession of the whole Goods before his Death It was answered the Disposition was but simulat in so far as it contained a power to the Disponer to dispose upon any part of his Moveables during all the days of his life and if such a Disposition were sustained there should never be another Testament confirmed and all people would follow this course which would not only exclude the Quot but keep the Means of Defuncts in obsâ—uro The Lords in respect of the generality of the Disposition and the Clause foresaid repelled the Reason George Dumbar contra Earl of Dundie July 5. 1665. GEorge Dumbar having charged the Earl of Dundie as Cautioner for the Laird of Craig to pay 8000 merks of Tochar provided by Craigs Sisters Contract of Marriage the Earl of Dundie Suspends on this Reason that he is but lyable for his half because they were not bound conjunctly and severally The Charger answered that he was bound as Cautioner and full Debitor which was sufficient Which the Lords sustained Mackie contra Stewart Iuly 5. 1665. JAmes Mackie as Assigney by Agnes Schaw conveens Stewart of Mains as as representing his Father who was Cautioner for imploying a Sum of Money to her in Liferent It was answered First the Contract is prescribed 2ly It bears these words that the Tochar being payed The Principal and Cautioner obligded them to imploy it upon security so that the obligation is conditional And if it be not instructed that the Tochar was payed the Defender is not lyable The Pursuer answered to the first contra non valentem agere non currit prescriptio she being a VVife cled with a Husband her not pursuing her own Husband or his Cautioner cannot prescrive her Right To the second The prescription is run against the Husband and his
Eodem die JOhnstoun having Appryzed the Lands of Achincorse and charged the Lord Dumfries his Superiour to receive him pursues the Tennents thereof for Mails and Duties Compearance is made for the Lord Dumfries Superiour who alleadged no Process till a years Rent were payed to him as Superiour 2ly It is offered to be proven that Achincorse the Vassal was in nonentrie or the Liferent Escheat fallen by his Rebellion and therefore the Superiour ought to be preferred The Pursuer answered to the first that seing it was the Superiours fault he received not him upon the charge albeit he offered to receive him now he could not have a years Rent till the Pursuer insisted to be infeft To the second the Defense ought to be Repelled seing there was no Declarator intentit The Defender answered that seing he was to change his Vassal and the Appryzer sought possession before he had access he behoved to pay the years Rent seing by the Appryzing and the charge the Superiour will be excluded from his Casualities To the second the Superiour being acknowledged by the charge he might crave the Casualities of the Superiority by way of competition and offered to produce the Horning cum processu The Lords sustained the first Defense but not the second seing there was no Horning produced nor Declarator intentit Janet Brotherstones contra Ogil and Orrocks Iuly 26. 1665. JAnet Brotherstones by her Contract of Marriage declaring that she had in Money Bonds and Goods 4000 merks is provided to all the conquest and to the Liferent of the whole Means and Moveables she pursues her Husbands Heirs for implement who alleadged absolvitor because she has not fulfilled her part of the Contract and instructs not that she delivered to her Husband 4000. merks in worth or wair It was answered it must be presumed that she has done it after so long time seing all she had came in the Possession of her Husband The Lords found the presumption not sufficient but before answer ordained the pursuer to condescend by Witnesses or otherwise how she would prove that she had that means the time of the Marriage and ordained these to be examined ex officio Thomas Kennedie of Kirkhill contra Agnew of Lochnaw Iuly 27. 1665. KEnnedie of Kirkhill as Assigney by Thomas Hay of Park to a Bond of 1000 lib. granted by Andrew Agnew younger of Lochnaw charges him thereupon who Suspends and raises Reduction on this Reason that the Bond was granted at the time of his Contract of Marriage clandestinelie without the knowledge of his Father who was Contracter contra pacta dotalia contra bonos more 's The Defender answered that he having given a very great Tochar viz. 10000. lib. above his Estate which is all payed to his Good Sons Father he did declare that he was not able to give so much and thereupon he got this Bond not to have Execution till after his death which he might lawfully do having given a Tochar suitable to the condition of the Receiver and above the condition of the Giver The Lords repelled the Reason in respect of the Answer This was thereafter stopt to be further heard Lilias Hamiltoun contra Her Tennents Eodem die LIlias Hamiltoun being Infeft by her Husband in Liferent pursues her Tennents compearance is made for their present Master who alleadged that her Husbands Right was only a Wodset granted by him and that he had used an Order and had Redeemed the Wodset and payed the money to the Pursuers Husband and neither knew nor was oblidged to know the Pursuers base Infeftment from her Husband the Wodsetter which had never any other Possession but the Husbands It was answered that the Pursuers Seasine being Registrate he was oblidged to know the same as well as if it had been an Inhibition especially seing there was no Process of Declarator in which case all Parties having intress should have been called at the Mercat Cross but a voluntar Redemption albeit upon an Order The Lords sustained the Defense notwithstanding of the Reply Adam Rae contra Heretors of Clackmannan Eodem die UMquhile Colonel Rae having advanced Victual to the Armie at Leith in Anno 1650. And gotten an Assignation to the Maintenance of August and September from Sir Iohn Smith then General Commissar in satisfaction thereof pursues the Heretors of Clackmannan for their proportions who alleadged that by their quartering of the Kings Armie their whole Rents Anno 1650. was exhausted It was answered that it was not our that the exhausting was after the Battel of Dumbar which was upon the third of September 1650. And so could not extend to the maintenance of August and September which was Assigned before for so onerous a cause The Lords repelled the Defense in respect of the Reply Captain Muire contra Frazer Iuly 27. 1665. CAptain Muir having obtained Decreet against the Heir of Colonel Hugh Frazer for 1000 merks before the Commissioners in Anno 1658. Charges thereupon They Suspend and raise Reduction on this Reason that the Decreet was null without probation proceeding only upon a Copy of an obligation alleadged taken out of the Register by one William Baily who keeped the same at London which could not prove not being under the hand of the Clerk Register or his Deputes which being proponed in the Decreet was unjustly repelled The Pursuer answered First There was no review raised within a year conform to the Act of Parliament and so the Decreet was not quarrellable upon iniquity 2ly Bailies Oath was taken by Commission that the Extract was subscribed by him 3ly The Defender proponed a Defense of payment and so acknowledged the Debt Debt It was answered that the Suspenders were and are minors and in the Act of Parliament there is an exception of Minors that they may Reduce these Decreets within a year after their Majority 2ly They ought to be reponed against their proponing of payment being Minors and as to Bailies Oath neither his Subscription nor Oath can make a probative Extract unless the new Extract were now produced seing the Registers are returned The Chargers answered that if the Suspender would alleadge that any Book of the Register containing Writs Registrat about the time of this Extract were extant and returned relevat but it is known that several of the Books are lost and this amongst the rest The Lords would not sustain the Decreet upon Bailies extract simplie neither did they put the Charger to the proving of a tenor but allowed the charger to condescend upon the way of his Instruction that such a Bond was truly subscribed by the Witnesses insent or otherwayes and ordained the Witnesses to be examined Adam Rae contra Heritors of Clackmannan Iuly 28. 1665. IN the Cause of Adam Rae mentioned yesterday some of the Heretors alleadged absolvitor because they were singular Successors and by the Act of Parliament for the Old Maintenance Singular Successors were excepted The Lords repelled this alleadgeance and found that exception only to be
Blank-bond had before the Arrestment seen the Blank-bond filled up and so had deponed or could depone that the time of the Arrestment the Debitor saw himself to be Debitor to another person filled up in the Blank than he for whose Debt it was Arrested for in that Case as the first Creditor that got the Blank-bond might have caused his Debitor retire that Bond and give a new one before any Arrestment so the showing of the filling up of the Blank was equivalent especially if the Debt could be proven no otherwayes but by the Deâ—â—tors Oath This Case was not debated nor was the hazard considered that the Debitors Oath might prefer one Partie to another nor was the case alike to a renewed Bond because a renewed Bond would bear a new date and different Witnesses that saw the new Creditors name filled up and would not depend upon the single Testimony of the Debitor Barbara Skeen and Mr. David Thors contra Sir Andrew Ramsay November 14. 1665. BArbara Skeen being provided by her Contract of Marriage with Umquhile David Ramsay to 18 Chalders of Victual or 1800 merks her Husband having acquired the Lands of Grange Muire worth 10 Chalders of Victnal she pursues Sir Andrew Ramsay as Heir to his Brother to make her up the superplus The Defender alleadged absolvitor because he offered him to prove that the said Barbara stood Infeft in the Lands of Grange Muire upon a Bond granted by her Husband which Bond bears In full satisfaction of the Contract of Marriage by Vertue of which Infeftment she having no other Right she had possest five or six years after her Husbands death and thereby had accepted that Right and had Homologat the same It was replyed that the Bond being a Deed of the Husbands a Clause foisted thereinto so far to the detrement of his Wife and the Infeftment not being taken by her but by an Acturney her possession cannot import Homologation thereof because Homologation being a Taâ—ite consent is not inferred but where the Homologator cannot but know the Right Homologat and can do the Deeds of Homologation no otherwayes but by vertue of that Right neither of which holds here because the personal oblidgement in the Contract was a ground for the Wife to have continued her Husbands possession and would have excluded his Heirs if they had quarrelled and not only the Clause must be presumed to be without the Womans knowledge but the Bond it self and the Infeftment especially considering the simplicity of Wives and their confidence in their Husbands who if this were sustained would easily deceive them It was duplyed for the Defender that he offers him to prove that the Pursuer did not continue her husbands possession but did begin Possession her Husband being never in possession before his death and that she set two several Tacks expresly as Liferenter and the third with consent of Mr. David Thors her Husband being an Advocat and so she cannot be presumed to have been ignorant but on the contraire she must bepresumed to have known the Right and could never denominat her self Liferentrix by a personal oblidgement to Infeft her in so much Victual and Money without mentioning any Land in particular and her acceptance though to her detriment may be the more easily presumed because she had two Children surviving her Husband in whose favour the Restriction did accresce and her Husband did secure her in all that he had but now ex post facto the Children being dead she could not return upon Sir Andrew her Husbands Brother contrare to her Homologation The Lords sustained the Defense and Duply for they thought albeit ignorance might be presumed in a Wife de recente intra annum luctus yet she having continued for so many years and doing so many deeds expresly as Liferenter and that the Bond was not clandistinely lying by her Husband but in a third Parties hand who had taken the Infeftment they thought in that case ignorance was not to be presumed but knowledge Wat contra Russel November 16. 1665. JEan Wat being provided by her Contract of Marriage to certain Lands and Infeft therein the Contract contains this Clause that she shall Aliment the Bairns of the Marriage after the Fathers death and in case she marrie again she shall restrict her self to six hundred merks and the superplus shal remain to the Bairns for their Aliment hereupon she pursues Robert Russel and the other Tennents for the Mails and Duties of the hail Liferent Lands who alleadged 1. That she was restricted to six hundred merks and could crave no more especially now being married to a second Husband compearance was also made for the only Child of the Marriage who claimed the benefit of the superplus by vertue of the Clause in the Contract It was alleadged further for the Defenders that they were Creditors to the Husband before the Contract of Marriage and in their Tacks had a Clause bearing That they should retain their Tack duties while they were payed and upon their Bonds they had also Apprized from the Child as lawfully charged to enter Heir all Right he had to the Lands So that if the superplus belong to the Child proprio jure it now belonged to the Defenders as appryzers They had also raised Reduction of the Clause of the Contract in favours of the Children as being granted by a Father in favours of his own Children after Contracting of their Debt and so was fraudulent and Reduceable by the Act of Parliament 1621. Against Bankerupts It was answered for the Child that as for the Appryzing and Decreet against him as charged to enter Heir he had Suspended and raised Reduction and craved to be reponed and produced a Renounciation offering to renounce all Right he could succeed to as Heir to his Father but prejudice of this Aliment which belonged to him proprio jure as a Restriction granted to him by his Mother and as to the Reason of Reduction upon the Act of Parliament There was here neither Fault nor Fraud their being no Law to hinder a Husband to give his Wife what Joynture he pleased which was never compted in defraud of prior Creditors nor is their any Restriction or proportion thereof but as the Parties agree which is always sustained in favorem dotium matrimonij and the Wife might take what Liferent the Husband was pleased to give her there was nothing to make her to restrict her self in favours of her Children for an aliment with restriction is no Deed of the Father but of the Mother It was answered for the Defenders that the reason of Reduction stood relevant seing in this case there was manifest Fraud in so far as this Liferent was exorbitant and unproportionable to the Fathers Estate whose hail Lands being only worth 1000. merks and having nothing but the Tocher which was 6000. merks he Infefts his Wife in the hail and yet restricted her to 600. merks and provided the rest to his Children and
this Case is as favourable because the Reversion was only to the Father in his own life and therefore the Son endeavoured to hinder him to Redeem by taking Right to this Appryzing It was answered that the Case was not alike in a Conventional Reversion as in a legal And that the Appryzing led against the Father in his life would perpetuat the Reversion and that this Case was unfavourable where the Father intended to frustrate his Heir in favours of the Wife of the second Marriage to whom he had assigned the Reversion The Lords having upon the first report considered the favourableness of the Sons Case sustained the Defense but afterward upon Bill ordained them to be heard again in presentia and having heard them The Lords were of different opinions so that that came not to a Vot But the Lords before answer ordained the Wife to insist upon her Right who alleadged that she might Redeem ad hunc effectum to enjoy the benefit of her Liferent Right after her Husbands Death It was answered First That she wanted the concourse of her Husband 2ly That her Assignation was not intimat It was answered First Her Assignation was Registrat in the Register of Reversions conform to the Act of Parliament Which Registration being publicandi causa needed no intimation 2ly That she had a Disposition in Liferent by her Contract of the Lands which carried omnejus in the Disponer as to the Liferent Right during her Life and so carried the Reversion though not exprest and her Seasine being registrat it was equivalent to the Registration of the Assignation The Lords sustained the Wifes Interest and declared in her favours for her Liferent use and found the Disposition with the Seasine Registrat and the Assignation also Registrat sufficient Cheisly contra Cuthbert Eodem die CHeisly Charges Cuthbert for his Prentis-fee Who suspends and alleadges that he was set Prentise to him as Apothecary and that he deserted that Employment and became a Drogeist and thereupon the Suspender left him It was answered that the breeding of him as a Drogeist was sufficient and that he now practised as Apothecary and Cherurgeon The Lords found this answer not Relevant the Suspender being set to him as Apothecary to make Drogs and not as a Drogeisi that buyes Drogs as to the time after he changed But the Charger having further offered to prove that he constantly in his Chamber makes as well as sell Drogs the Lords found it Relevant Richard Cunninghame contra Duke of Hamiltoun Eodem die RIchard Cuninghame pursues the Duke and Dutches of Hamiltoun for payment of a Bond granted by the late Duke which being produced appeared to have been blank in the Sum Date and Creditors Name The Defenders alleadged the Bond was null as wanting the Designation of the Writer It was answered that they did now Design him which has been alwayes allowed by the Lords It was answered that though the Lords have done so ex officio Yet in a case of this nature where the Debt is so old never mentioned before and the Bond in the substantials blank in which case the Lords ought to keep by the express words in the Act of Parliament that such Writs are null and not to be supplyed by an equivalent The Lords Repelled the Defense and admitted the Designation Hellen Hill contra Maxwels Eodem die IN an accompt and reckoning between Hellen Hill Relict of Iohn Maxwel in Glasgow who was one of the Tutors named by Iohn to his Bairns and Mr. Robert and George Maxwels his brethren who succeeded the Daughters being dead Iohn by his Testament leaves his two Daughters and failing of either of them by Decease to the other his universal Legatars one of the Daughters dyed Pupil and the other shortly after her age of 12. years nominat the said Hellen her Mother universal Legatrix whereby Hellen craved the universal Legacy of both the Daughters It was alleadged that the last Daughter not having Confirmed her self Executrix to the first the first share was never established in her Person and so could not be Transmitted by her Testament but belonged to the nearest of Kin of the first Daughter viz. The saids Maxwells It was answered That this being a Substitution of each of the two Daughters to other nominatim by the death of the one it accrest into the other ipso facto without Confirmation as in the case of Bonds of Provision payable to the Father and by Decease of him to such a Bairn named albeit the Father be Fiar and the Bairn but Heir substitute it needs not Confirmation but the Bairn may summarly charge or pursue The Lords found no need of Confirmation but that it did accresce to the second Daughter upon the death of the first and so was carried by the seconds Testament In this account Mr. Robert as Heir pursuing for the Heretable Bonds The Tutrix answered that she ought to have allowance of what was wared out upon repairing of the Tenement in Glasgow It was answered that she as Tutrix ex officio was oblieged to exhaust the Moveables first one Person being both Heir and Executor and not to exhaust the Heretable Bonds that bore Annualrent and to let the other lie unprofitable and now to apply it to her own use by her Legacy It was answered That it was employed upon the Heritage and so was profitable to the Heir only being employed upon the House and that by a Warrand the Heir being then under Tutors to repair it out of the first and readiest of the Defuncts Estate The Lords found that Article Relevant to be deduced out of the Heretable Estate Elizabeth Anderson contra Andrew Cunninghame December 7. 1665. ANdrew Cunninghames Wife having left a Legacy to Elizabeth Anderson It was alleadged by the Husband that his Wifes share of the moveables was exhausted It was answered That he having confirmed his Wifes Testament and given up the Debts due by him therein and made Faith thereon he cannot now be admitted to adduce any other Debts especially being so recent before the Testament within three or four years It was answered that he had only made Faith upon the Inventar of the Goods belonging to him but not of the Debts due by him which were only given up to abaite the Quot and albeit it may be presumed that he knew and remembred his own Debt yet presumptio cediâ— veritati seing the Creditors now produce their Bond instructing the Debt and crave preference Which the Lords found Relevant vid. Iune 9. 1666. Katharin Smith and William Duncan contra Isobel Robertson Eodem die KAtharin Smith and William Duncan having apprized from Isobel Robertson and Iohn Wilson all Right they had to a Tenement under which fell the Liferent-right of Isobel Robertson his Wife jure mariti Pursues the said Isobel for payment of the Mails and Duties that she had uplifted and of a part of the Tenement that she dwelt in her self She alleadged first that her Husbands
jus mariti could not carry her Liferent seing immediatly after the marriage he went out of the Countrey and was never heard of since and she had obtained Decreet of Adherence against him and was going on in a Divorce for malitious deserting The Lords Repelled the Alleadgance seing the Divorce was not compleat and this was four years anterior The said Isobel further alleadged absolvitor for the Rents of her Dwelling-house for bygones and for what she had uplifted because she had done it bona fide cum titulo viz. her Husbands obliegement to aliment her as his Wife bona fide possessor facit fructus consumptos suos Which the Lords found Relevant and that albeit her Husband would be lyable for these Rents which alimented his Wife yet not she David Veatch contra Iohn Duncan Eodem die DAvid Veatch as heritor of the Miln of Dersie pursues Iohn Duncan for abstracted Multures and obtains Decreet He Charges and Iohn Suspends both parties being ordained to produce their Rights the Heritor of the Miln instructs that his Author was first Infeft in the Miln before the Defenders Author was Infeft in the Land and produces a Decreet of the Lords in Anno 1575. declaring the Thirlage wherein it was alleadged that the Heretor of the Miln being first Infeft of the Common-author and producing a Precept from Cardinal Beaton then Bishop of St. Andrews Common-author ordaining the Tennents of the Defenders Land to pay the Multure to the Miln of Dersie It was alleadged this was not sufficient seing the Charter did not Thirle the Defenders Lands but was only of the Miln and Multure thereof generally as for the Cardinals Precept it was not with consent of the Chapter and so could not extend beyond the Bishops Life yet the Lords declared the Astriction notwithstanding it was now alleadged that the Defender was Infeft cum molendinis muliuris by vertue whereof he had prescribed his freedom by 40. years time It being answered that once being Thirled by the Common-author no Charter granted by him thereafter could prejudge the Feuar of the Miln And as for Prescription offered to prove Interruption by paying of Insucken-multures within the space of 40. years William Cranstoun contra Walter Pringle Decemb. 12. 1665. WIlliam Cranstoun being Vassal to Greenknow he was amerciat in his Court for a Blood committed upon Walter Pringle and being charged Suspends upon this Reason that Greenknow not being a Baron or the Kings immediat Tennent had no power of Blood-waits unless he had had an express Deputation from his Superiour the Marquess of Huntly who is Baron only having the Jurisdiction It was answered that Greenknow was Infeft cum curiis bloodwitis Which the Lords found sufficient Mr. John Pearson contra Martin and his Son Eodem die MR. Iohn Pearson by his Contract with Eupham Martin did conceive the Clause of his Tochar in thir Terms that it should be payable to him and her the longest liver of them two in Conjunct-fee and Liferent and to the Heirs of the Marriage in Fee which failzing to return to the Wifes Heirs By a second Contract betwixt the Husband and his Wife it was agreed that that Clause should be altered and that failzing the Heirs of the Marriage it should return to the mans Heirs who thereupon pursue Declarator of Right by vertue of the second Contract The Defender being absent The Lords advised the Cause wherein the difficulty appeared to be that the Tochar was provided to the Bairns in Fee So that the Husband and Wife could not alter the Succession being both Liferenters because that the Clause bears to them in Liferent and to the Bairns in Fee yet the Lords sustained the Declaratâ—r seing the Husband and Wife were named Conjunctfeers so that either of them behoved to be Fear and the adjection of and Liferent could only be understood of the Person that were Liferentar and albeit it was exprest to be the Bairns in Fee yet that could be but of a substitution seing there were no Bairns then existent Christian Barns contra Hellen Young and her Spouse Eodem die HEllen Young being provided to the Annualrent of 800 merks and to the Conquest obtained Decreet thereupon against Christian Barns the Executrix who Suspends on this Reason that the Pursuer was Infeft by the Defunct her Father in a Tenement in full satisfaction of these provisions It was answered nonrelevat unless it were alleadged that the Charger had accepted Whereupon it was alleadged Accepted in so far as she had uplifted the Mails and Duties after her Fathers death and had no other Title ascribe it to It was answered that she had another Title viz. her Goodsir had Disponed this Tenement to her Father and Mother the longest liver of them two and the Bairns of the Marriage be vertue whereof as Heir Appearand of the Marriage she might contiue and uplift and miskene the new infeftment given by her Father Which the Lords founds relvant unless the other Partie Insist on that alleadgeance proponed that the Pursuer had pursued and obtained payment upon the Title bearing in satisfaction John Ramsay contra James Wilson and others Eodem die COlonel Cunningham having impignorat a number of Jewels of great Value and immediately thereafter went out of the Countrey and never returned These Jewels were in the Custody of Iohn Ramsay who and Mr. Robert Byres had given Bond to make them furthcoming to the Colonel and now Iohn Ramsay having been Confirmed Executor to the Colonel pursues Iames Wilson and others for Exhibition and Delivery of the Jewels The Defenders alleadged absolvitor because the Jewels were Impignorat by Mr. Robert Byres for a considerable Sum of Money who having them in his Possession it was a sufficient ground for the Defenders to Contract with him because property of Moveables is presumed by Possession and therefore it is not relevant to lybel that once the Jewels were Colonel Cunninghams and therefore they must be restored to his Executors unless it were also lybeled quomodo desijt possidere so that the Jewels behoved to have past from him without his own Consent or Alienation otherwise it is alwayes presumed that he sold or gifted them and needs not be proven else no man could be secure of any Moveable if he who could instruct that he bought it could recover it from all possessors unlesse they could instruct all the wayes the same past from the first Owner The Pursuer replyed that the Case is not here as to Moveables that are ordinarily sold in Mercat but in relation to Jewels of great Value which cannot be presumed to have been Mr. Robert Byres because they were never worn by him as being his proper Good nor were they Competent to any of his quality and therefore the Defenders were in mala fide to acquire them from him without knowing his Right 2ly It is instructed by Mr. Robert Byres Letter produced that he acknowledged them to be Colonels before the Impignoration and it s
ordinar and known but here the Casualities belonging to the Bailliâ— proprio jure the Constitution of the Burgh could not prejudge them even albeit the Lord of the Regalities consent was thereto produced seing the Ballie consented not but as to the Possession and Prescription whether the Town could Prescribe the Right of the Civil Jurisdiction albeit the Baillie exercised the Criminal Jurisdiction of Bloods or whether the Town could Prescribe their Right of a part of the Civil Jurisdiction in so far as concerned Trade The Lords superceeded to give answer while the first of Iune and that they had time to consider the Depositions of the Witnesses fullie Creditors of Lord Gray contra Lord Gray Eodem die CErtain Creditors of the Master of Grayes being Infeft in Annualrent out of certain of his Lands pursues Poynding of the Ground It was alleadged for the Lord Gray his Son absolvitor because he has Right to an Appryzing and Infeftment of Alexander Milne which is expired and prior to the Pursuers Infeftments It was answered that the Appryzing was satisfied by the Umquhile Master of Gray and a blank Assignation thereto was taken which was amongst the Masters Writs and this Lord filled up his Name after the Masters death this being unquestionably relevant the difficultie was concerning the manner of the Probation The Lords before answer ordained Witnesses ex officio to be examined whereupon the Lord Gray's Brother was examined who acknowledged he saw the blank Assignation by his Brother and Mr. Robert Prestoun being examined and several other Witnesses above all exception and also the Lord Gray himself who acknowledged he got the Assignation blank after his Fathers death but not amongst his Writs and that he gave a Bond therefore Many of the Lords thought that seing by the late Act of Parliament the Appryzing though expyred was Redeemable from him for the Sum he truely payed for it that it were more just and safe that he should be preferred unless the Creditors would purge and satisfie the Sum and that it were a dangerous example to find so important a Writ as this Assignation to be taken away by Witnesses yet the plurality found the Testimonies so pregnant and unquestionable They found the Reply proven thereby and found the Appryzing retired and satisfied by the Debitor and so extinct Earl of Landerdail contra Viscount of Oxenfoord last of February 1666. THE Earl of Lauderdale being Infeft in the Barony of Muslburgh which is a part of the Abbacie of Dumfermling and was Erected into a Temporal Lordship in favour of the Lord Thirlstoun thereafter Chancellourâ— the Lord Lauderdales Grand-fatherâ— in Anno 1587. Before the Act of Annexation wherein the Erection of Musleburgh to the Lord Thirlstoun is expresly excepted Thereafter in Anno 1592. the Queen was Infeft by the King in Liferent in the Abbacie of Dumfermling with the consent of the Lord Thirlstoun as to Musleburgh and his Resignâ—tion as that effect shortly after that same year the King gave the Queen an Heretable and Irredeemable Right of the whole Abbacie of Dumfermling which was Confirmed by a Printed Act of Parliament the Queen lived till the Year 1618. After which the King was served Heir to his Mother in the Abbacie of Dumfermling and Infeft therein being then Prince The King gave an Heretable and Irredeemable Right to the Lord Oxenfoords Authors of the Teynds of Coutsland as a Part of the Lordship of Musleburgh in Anno 1641. And shortly thereafter His Majesty did renew the Earl of Lauderdales Infeftment of the Lordship of Musleburgh with a novodamus Lauderdale being Forefaulted by the Usurpers Swintoun got a Donative of the Lordship of Musleburgh and amongst the rest of the Teyn is of Coutsland and did raise Inhibition and Reduction of their Rights After the Kings Restauration the Earl of Lauderdale obtains his Infeftment Confirmed in Parliament with an express Exception therein that it should not be derogat by the Act salvo jure raises Inhibition of the Teynds and pursues Action of Spuilzie and also of Reduction It was alleadged for the Defender absolvitor because he stands Infeft in the Teynds lybelled by Infeftment granted by the King before the Earl of Lauderdales Infeftment pursued on and by vertue of his Infeftment King Charles the first and Queen Anne his Authors have been in peaceable Possession uninterrupted since the Year of God 1593 And therefore their Right is accomplished and established by Prescription It was answered for the Pursuer that the Defense ought to be Repelled because since the death of Queen Anne who died in Anno 1618. Till the Interruption made by Swintoun by Inhibition and Reduction in Anno 1656. there are not 40â— years run and till the Queens death the Earl of Lauderdales Grand-father could not pursue because he had granted Resignation in her favours for her Liferent contra non valentem agere non currit Prescriptio So Wyves Provisions in their Contract of Marriage Prescribe not from their Date but from the time of their Husbands death all Obligations Prescribe only from the Term of payment and Infeftments and Oblidgements of Relief from the Distresse It was answered for the Defender that this Defense stands still Relevant First because as to any interruption made by Swintoun it cannot be profitable to the Pursuer because he derives no Right from Swintoun And as to the Queens Liferent Infeftment consented to by Thirlstoun the Queen never accepted the same but an Heretable Right from the King that same Year by which Heretable Right only she possest and did all Deeds of Property by entring of Vassalls and granting of Fews which a Liferenter could not do which Heretable Right Thirlstonn could not misken because by a special Printed Act of Parliament it is Confirmed in Parliament and past the great Seal himself being Chancellor It was answered for the Pursuer that the Defense and Duply ought to be Repelled in respect of the Reply because the Confirmation of the Queens Heretable Right in Parliament was salvo jure and he was secured by the Act salvo jure in the same Parliament and that he knew thereof at the passing of the great Seal is but a weak presumption and such knowledge could not prejudge him nor was he in any capacity to pursue upon his own Right for attaining possession seing the Queens Liferent Right and Heretable were both compatible and it was evident the Queen would exclude him by his Consent in the Liferent Right neither can the Queens acceptance be questioned after so long time seing the acceptance of the Liferent was to her advantage and profit before she got the Fee and did exclude Thirlstouns prior Right which would have undoubtedly reduced the Queens Right and was excepted in the General Act of Annexation and would not fall under the Act salvo jure It was also severally alleadged that this Earl of Lauderdales late Right was Confirmed in Parliament 1661. And all other Rights declared void and that the
Holstein constitute Soveraign therein and they liberat from his Jurisdiction Tolls and Imposts for War It was answered that this Stranger was not obliged to Dispute the Right or Investiture of the Duke of Holstein but it was sufficient for him to say that before this War they did own him as their Prince for simple acknowledgement of a Superiour or Investitur from him doe not make Subjects or comprehend them within the Wars and Quarrels of their Superiours yea though there were a Tribute or Jurisdiction due to that Superiour yet if the Prince do enjoy the Priviledges of making War and Peace he is not a simple Subject but in so far a Soveraign Prince as some of the Princess of the Empyre hold of the Emperour paying him Tribute and there lyes an appeal to the Soveraign Imperial Court yet because they can make War and Peace they are not necessarly involved within the Emperours Quarrels So the Duke of Holstein being a Soveraign Prince and possessing this Island so as to make use of the Subjects thereof in Peace and War therefore is not comprehended in the King of Denmarks Quarrel nor is he or his Subjects in the Sense of the Proclamation The Lords adhered to their former Interlocutor upon the 22 of December when this Case was Debated and Repelled the Alleadgences proponed for Ludquhurn unless it were alleadged that the Inhabitants of this Island do contribute with the King of Denmark in this War against the King and they so alleadging The Lords Ordained the Ship and Goods to be valued and delivered to the Stranger upon Caution or otherwise to be Sequestrat in some Merchants hands that the Ship might be made use of for Fraught and the Goods sold and not made unprofitable and according to the course of Admirality the Lords Ordained Ludquharn to find Caution for Cost Skaith and Damnage by the delay of that alleadgence Mr. Iames Cheap contra Mr. Iohn Philip. Ian. 5. 1667. THe Lords having Considered the Testimonies of the Witnesses adduced before answer betwixt Mr. Iames Cheap and Mr. Iohn Philip upon the Debate mentioned the 19. of December last found the same to prove and to qualifie the Minute they being the Witnesses insert above exception and it but a Minute wherein particulars are not at all nor fully set down which will not be drawn in example as to any full and extended Writs either for altering any Clause therein exprest or for adding thereunto any omitted Laird of Polwart contra Laird of Halyburtoun Ianu. 16. 1667. THe Laird of Polwart as Heir to his Father pursues Hallyburtoun for payment of a Ticket of 250 merks due by the Defender to the Pursuers Father and for a composition payed by the Pursuers Father for receiving him in certain Lands Disponed to him by the Defender wherein he was oblieged to obtain him Infeft The Defender alleadged absolvitor from the payment of the Ticket because it must be presumed to be payed on these grounds first Since the Ticket the Defender sold Land to the Pursuer so that it must be presumed it was Counted and included in the price and albeit that presumption were not sufficient alone it is fortified by these two viz. That it is twenty eight years since the Bond was granted and no word ever heard thereof and that umquhil Polwart in his Testament gave up an Inventar of the Debts owing to him wherein no mention is of the Bond. It was answered that a Writ could not be taken away by Witnesses proving payment much less by presumptions and as to the Taciturnity which is the main one umquhil Polwart dyed about seven years after the Bond was granted and the Pursuer was Minor most of the time since It was answered that Presumptions have been oftimes sufficient to take away VVrits as was found in the case of the Lady Trabroun The Lords Found the Presumptions not Relevant and that they were nothing so strong as these of the Lady Trabroun which were thus Trabroun granted a Bond of 5000 merks to Alexander Peebles which was taken away on these Presumptions that thereafter Trabroun had granted a Bond of 10000 merks to the said Mr. Alexander who was his Advocat with whom he had many Affairs and therefore it was to be presumed the last Bond included the first especially seing Trabroun decaying in his Fortune Mr. Alexander apdryzed his Lands upon the last Bond and not upon the first which he might have done with the same Expence and that he never moved any thing thereupon all his Life by the space of twenty six years and in the Inventar of his Testament he made no mention of it and that his Executors being Examined ex officio did acknowledge they had found it amongst old cast Papers The Defender furder alleadged absolvitor from the Composition because he was never required by Polwart to procure the Infeftment from the Earl of Hume which he could easily have done gratis he being his Uncle especially seing there was no Term in his Obligation to perform and therefore Interpellatio tantum inducit moram The Lords found the Defense Relevant and Assoilzied from the Composition albeit it was alleadged that Polwart for several years had not Componed that the Composition was much less then a years Rent and that Halyburtoun was not in good Terms with the Earl of Hume which was not respected seing Hslyburtoun was not required Reid contra Salmond Eodem die REid pursues Barbara Salmond and Iames Telzâ—fer her Husband for a debt due by her Father as behaving her self as Heir by Possessing a House wherein her Father died Infeft and by Setting another House of his to Tennents It was answered that Iames Telzifer was Tennent in the House Possest by him before the Defuncts Death and might Possess per tacitam relocationem Neither could he safely leave the House till he had given it over to some having Right VVhich the Lords found Relevant 2ly It was alleadged that the Defunct had Disponed the same Tenement to the defenders Son his Oye which disposition albeit it attained not Infeftment yet it was a sufficient Title for Mails and Duties and to continue Possession and to purge the vitious Title of behaving as Heir Which the Lords found also Relevant Barbara Chapman contra Iohn White Ianu. 18. 1667. BArbara Chapman pursues a Reduction ex capite inhibitionis viz. That Calander being Charged to enter Heir to his Father who was the Pursuers Debitor and upon the Charge Inhibition was used against him after which he Disponed to the Defenders Father It was alleadged by the Defender that he is minor non tenetur placitare de haereditate paterna It was answered that Calander his Fathers Author was never Infeft Secondly That the Defenders Father did Dispone the Land to his second Son by both which it could not be called haereditas paterna The Lords Sustained the Defense notwithstanding of the Reply and found no Process till the Defenders majority and that he was not oblieged to
priviledged The Lords Repelled the Defense and found the Donatar lyable for the Rent in so far as ilk years intromission would extend to the Rent of that year George Schine contra Iames Christie Eodem die GEorge Schine having Adjudged an Annualrent and having Charged Iames Christie his Superiour to receive him He Suspends and alleadges he had Appryzed the same Lands before and that his Author was only Infeft base never cled with Possession The Lords Repelled the Defense hoc loco and ordained him to Infeft Reserving his own Right as accords Schaw contra Tennents Eodem die SChaw pursues certain Tennents for their Duties who produced several Discharges against which it was alleadged that the Discharges were null wanting Witnesses and were not Written with the Dischargers own hand and so were null by the Act of Parliament It was answered that Custome had introduced several exceptions from that Act as Bills of Exchange of the greatest importance which are valid being Subscribed without Witnesses albeit not holograph And in like manner the Discharges granted to Tennents which by long Custom through all the Kingdom use only to be subscribed by the Landlords without Witnesses and writen with another hand The Lords sustained the Discharges and would not put the Tennents to prove that they were truely subscribed unless they were offered to be improven in which case though the indirect manner was wanting they might be improven by comparison of Subscriptions and other Adminicles wherein less would serve then in other Improbations Sir Henry Hume and other the Creditors of Kello contra Sir Alexander Hume Iuly 6. 1667. SIr Henry Hume and others being both Creditors to Alexander Hume of Kello And Iohn Hume his Son Appryzed the Lands of Kello in anno 1649. And in anno 1653. Charged the Superior in anno 1661. Iohn Hume is Forefault upon the Treasonable Crimes committed in anno 1651. Sir Alexander Hume is Donatar to the Foresaulture the case of Alexander Humes Right before the Appryzing was that by Contract of Marriage Alexander Hume had Disponed several Husband Lands to Iohn reserving his own Liferent of certain Husband Lands The Father continued to possesse the Lands Reserved and the Son of the rest The Question is now concerning the Lands Reserved whereanent the Competition is betwixt the Creditors Appryzers and the Donatar It was alleadged for the Donatar that he ought to be preferred because any Right the Creditors had is but an Appryzing and a Charge without Infeftment which Charge albeit it be equivalent to an Infeftment in the Competition betwixt Con-compryzers yet it is no way equivalent as to the King for after the Charge all Casualities of the Superiority would fall to the Superior and so must the Casuality of Forefaulture fall to the King 2ly Though the Appryzers had been Infeft when they Charged their Infeftment would have been long after the committing of the Crime and there was nothing before the Crime but the naked Appryzing which was no real Right so that the Forefaulture devolving the Fee to the King with the burden only of such real Rights as the Superiour had consented to before the Cryme which cannot extend to this Appryzing which is no real Right or to the Charge and Infeftment thereon because after the Crime 3ly Albeit the Infeftment of the Son who was Forefault was base holden of the Father yet it coming in the Person of the King or his Donatar can no more be a base Right but becomes publick so soon as it is devolved to the King which was at the committing of the Crime before the Appryzers Infeftment or Charge It was answered for the Creditors that they ought to be preferred upon their legal Diligence for satisfaction of the lawful Debt contracted before the Crime because they had Appryzed before the Crime and had Charged the Superiour before the Sentence of Forefaulture Which Charge is equivalent to an Infeftment and the King succeeding in the place of the Forefault Person utiâ—ur jure privato and albeit noâ— voluntar Deed after the Committing of the Crime would be effectual against the King or his Donatar Yet an Appryzing before the Crime and a Charge before the Sentence or Process of Forefaulture is sufficient in favours of the Creditors especially seing the Superiority being unquestionably in their Father they might Charge him when they pleased and having Charged him they become in his place and cannot Charge themselves as Superiours of the Forefault Person The Lords preferred the Appryzers in respect of their Appryzing before the Crime and the Charge after before the Forefaulture It was further alleadged for the Appryzers that the forefault Persons Right being only base never cled with Possession their Appryzing against the Father who was not forefault was preferable It was answered for the Donatar that the Forefault Persons Right was cled with Possession in so far as the Forefault Person possest a great part of the Lands Disponed lying all together and of the rest the Fathers liferent being reserved the Fathers Possession was the Sons Possession It was answered that Possession of a part cannot be sufficient for the whole where there is an express Reservation hindering the Natural Possession of the rest and where the rest are actually possest by another Party neither can the Fathers Possession be the Sons because it is ordinarly found that Dispositions by a Father to his eldest Son and Infeftments thereon reserving the Fathers Liferent are not thereby cled with Possession And albeit in Reservations in favours of Wives the Husbands Possession be the Wifes Possession yet that is a special priviledge favore matrimonij dotis and is not competent to any other It was answered for the Donatar that a Reservation in favours of a Father in any gratuitous and clandestine Infeftment granted to the Son does not validate the same yet the Infeftment being for a Cause onerous viz. a Marriage which is a solemn and publick Act the Infeftment following thereupon is void of all suspition of Simulation and as an Infeftment to a Stranger reserving the Disponers Liferent would be valid by the Disponers Possession So must a Sons upon a Contract of Marriage otherwise great prejudice will follow Sons being frequently Infeft in their Fathers whole Estate reserving their Liferent of a part and ordinarly but basely Infeft to secure the Property being more desirous to Enter themselves as Heirs to their Fathers after their death if no posterior prejudicial deeds be done which is more honourable for the Family all the Infeftments would be overthrown being upon Debts contracted after the Infeftment The Lords being of different Iudgements in this Point were loath to decide them because the Case was decided by the former Vote Stevin contra Iohn Boid Iuly 9. 1667. IN a Tutor Compt at the Instance of Stevin against Iohn Boid these Queries were Reported by the Auditor and determined by the Lords 1. How soon a Tutor was obliged for Annualrent of the Defuncts Bonds that
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
Teinds were exhausted wherein having failzied and being taxed no other could pay for him neither could the King lose that proportion It was answered that he had no interest to conveen the Ministâ—r having the only Right to his Teinds The Lords Repelled the Reason and adhered to the Stent Roll but prejudice to the Suspender to seek his relief of any Partie he pleaseth as accords Mr. Andrew Brown contra David Henderson and Thomas George Ianuary 18. 1668. MAster Andrew Brown granted a Bond of 700. Merks blank in the Creditors Name to George Short wherein the Name of David Henderson is now filled up Thereon George having Arrested all Sums due to Alexander Short in the hands of Mr. Andrew Brown he raises a double Poynding wherein the Competition arises betwixt the Arrester and the the Person whose Name is filled up in the blank Bond. It was alleadged for the Arrester that he ought to be preferred because he Arrested Shorts Money and at the time of the Arrestment this Bond having been Delivered to Short blank in the Creditors Name Short was Creditor ay and while not only another Name were filled up but also an Instrument of Intimation were taken thereupon for Shorts filling up of the Name of Henderson is no more then an Assignation which requires Intimation and is excluded by an Arrestment before the Intimation albeit after the Assignation It was answered for Henderson that there needed no Intimation to the filling up of a Creditors Name in a blank Bond which was never required by Law nor Custom and his Bond being now in his own Name nothing could prove that it was blank ab initio or that it did belong to Short but Hendersons own Oath in which case it would be sufficient for him to Depone qualificatâ— that the Bond indeed was blank ab initio and delivered by the Debtor to Short and by Short to him and his Name filled up therein before the Arrestment or at least that before the Arrestment he had showen the Bond filled up to the Debtor which is equivalent as if he had given back the first Bond and gotten a new Bond from the Debtor after which no Arrestment upon account of the prior Creditor could be prejudicial to him ita est he hath done more for he hath proven that before the Arrestment the Bond was producedâ— and shown to Birny the Debtor It was answered that in a former case in a Competition of the Creditors of Alexander Vetch the Lords found that the Arrestment laid on before Intimation of the filling up of a blank Bond preferred the Arrester and that otherwise Collusion could not be evited with these blank Bonds to exclude and to save Creditors Arresting The Lords preferred Henderson whose Name was filled up and presented to the Debtor before the Arrestment for in Vetches Case there was nothing to instruct that the Bond was truely filled up and presented to the Debtor before the Arrestment and they found the filling up and presenting thereof sufficiently proven by the Witnesses taken ex officio Pollock contra Pollock and Rutherfoord Eodem die UMquhil Iohn Pollock in the Cannongate having given a Bond to Iames Pollock his Son of 5000. Merks he pursues Robert Pollock the Heir of Line and Pollock Heir of the second Marriage for payment The Heir of Line Compearing Renunced whereupon the Pursuer insisted against the Heir of Provision who alleadged no Process till the Heretage be falling to the Heir of Line were first discust and condescended upon the Heirship Moveable The Pursuer answered there could be no Heirship in this Case because the Heir of Line had Renunced all he might Succeed to by his Father Heretable or Moveable in Favours of his Father his Heirs and Executors bearing expresly that his Wife and his Bairns of the second Marriage should have the whole Right Ita est Rutherfoord the Wife had Confirmed the whole Moveables promisâ—ue without exception of Heirship and therefore the Heir of Line himself if he were Entered could claim none It was answered that the Renunciation of the Heir apparent of Line being in Favours of his Father after his Fathers death it returned back to him from his Father as Heir of Line again and could go to no other Person neither thereby could the Heretable Moveables belong to the Executor The Lords found the Renunciation sufficient to exclude the Heir of Line from the Heirship Moveable and that they did thereby belong to the Fathers Exeâ—utor therefore found no further necessity to discusse the Heir of Line and Decerned against the Heir of Provision Grissel Stuart contra the Laird of Rosyth her Brother Ianuary 21. 1668. UMquhil Rosyth gave a Bond of Provision to his Daughter Grissel Stuart of 10000. pounds payable at her age of 17. years with an Obligement to Entertain her in the mean time but no Obligement of Annualrent she pursues her Brother as representing her Father for Implement and having Lived with her Uncle a part of her Fathers time and alleadging that she was hardly used by her Step-mother she craves Aliment for that time of her Fathers Lifetime and for six or seven years since his Death or craved Annualrent for her Sum. The Defender alleadged Absolvitor as to the Annualrent before her Fathers Death because she ought to have continued in her Fathers Family and there neither is nor can be alleadged any just Cause wherefore she should have deserted the same 2dly Absolvitor from Annualrent or Entertainment since her age of 17. years because the Bond bears Entertainment till that age and no Entertainment or Annualrent thereafter 3dly She does not nor cannot alleadge that she payed out any thing for Entertainment but was Entertained gratis by her Uncle The Lords found this no ground to exclude her from Aliment and found Aliment due after the Term of her Bond as well as before but not Annualrent and modified six hundreth Merkes per annum without allowing any thing for the year her Father Lived but modified the more largely it being unfit to Dispute the necessities of her Removal Ianet Schaw contra Margaret Calderwood Eodem die JAnet Schaw pursues a Reduction of a Liferent Infeftment granted to Margaret Calderwood by the Pursuers Father as being in lecto The Defender alleadged no Processe because the Pursuer was not Heir the time of the Disposition but another Heir appearand who never Entered The Lords Repelled the Defence The Defender alleadged that this being an Liferent Infeftment to her by her Husband and but of a small value it was valide and the Husband might Discharge that natural Debt of providing his Wife on Death-bed she having no Contract of provision before The Pursuer answered that the Defender might take the benefit of her Terce which is her legal Provision beyond which a Deed on Death-bed in prejudice of the Heir is null and this Liferent is of the Husbands whole Estate and yet the Pursuer is willing it should stand it being restricted to a
Defender offers to prove uses to be done in the like case Which the Lords found relevant albeit the Intimation was not mentioned in the Designation Robert Dobby contra the Lady Stanyhil his mother Eodem die RObert Dobby pursues the Lady Stanyhil his Mother for an Aliment upon this ground that she being provided to an plentiful Liferent being an Annualrent of 2800. Merks yearly there remains nothing to Aliment him the Heir of free Rent being all exhausted by the Liferent and Annualrent of the Debt The Defender alleadged Absolvitor because there is no ground in Law nor Custom for an Aliment to the Heir except the Rents were exhausted by real burdens by Infeftment but here at the Defuncts Death there was only this Liferent which was not the half of the Rent and there was no Infeftment more 2dly Aliments is only competent to Minors the Pursuer is Major and may do for himself The Pursuer answered that it was alike whether the Debts were personal or real for if Apprysings had been used they would all have been real but the Pursuer did prevent the same by Selling a part of the Land at a great Rate which was all applyed to the Creditors and yet the Liferent and Annualrent of the Debt is more then the Rent neither is there any distinction in the Law as to Majors and Minors who were not bred with a Calling and therefore Carberry who was a man of age got an Aliment and Anthonia Brown got an Aliment from her Mother who had an Annualrent in Liferent and the Debts were all personal at her Fathers Death albeit some of them were Appryzed for before she got her Aliment The Defender answered that there was a sufficient Superplus because she offered to take the Lands or find sufficient Tennents therefore for 4300. Merks yearly which was a 1000. Pounds above her Liferent and would exceed the Annualrents of all the Debts The Lords found this last Defence relevant but did not proceed to determinâ— whether an Aliment would be due where the burden was but by personal Debt Alexander Binny contra Margaret Binny Eodem die MArgaret Binny granted a Bond obliging her self to Enter Heir of Line to her Father and to Resign the Lands in Favours of her Self and the Heirs to be Procreat of her own Body which failzying to the Heirs of Alexander Binny her Father and obliged her self to do nothing contrair to that Succession and having Married William Brotherstanes by her Contract of Marriage nomine dotis she Dispones the Lands to him This Margaret was the only Child of Alexander Binnies first Marriage and there was an Inhibition used upon the Bond before her Contract of Marriage Alexander Binny being Son of the second Marriage and Heir of Line to his Father pursues the said Margaret to fulfil the Bond and to Enter and Resign the Land conform thereto and thereupon did obtain Decreet which being now Suspended It was alleadged that this being but an obligement to Constitute a Tailzy could have no effect to hinder her to Dispone to her Husband in name of Tocher which is the most favourable Debt or to Contract any other Debt which the Pursuer who behoved to be her Heir could never quarrel 2dly It was alleadged for the Husband that he could not be Decerned as Husband to consent to this Resignation contrair to his own Contract It was answered that this was not only a Bond of Tailzy but an obligement to do nothing that might change the Succession and so she could not voluntarly Dispone but the Husbands Provision might be Competent enough seing both she has the Liferent and the Children of the Marriage will succeed in the Feeâ— and albeit the Pursuer must be Heir of Tailzy yet obligements in favours of Heirs of Tailzy are alwayes effectual against Heirs of Line in relation to whom the Heir of Tailzy is but as an stranger The Lords repelled the Reason and found the Letters orderly proceeded till the Wife Entered and Resigned with Consent of her Husband conform to the Bond seing there was Inhibition used before the Contract but they did not Decide whether this Clause would have excluded the Debts to be Contracted by the said Margaret or her Heirs upon a just ground without Collusion but found that she could not make a voluntare Disposition to exclude that Succession in respect of the obligement to do nothing in the contrair Eâ—phan Brown contra Thomas Happiland Ianuary 29. 1668. MArjory Brown being first Married to Happiland and thereafter to Robert Brown she Acquired Right to a Tenement of Land to her self in Liferent and Euphan Happiland her Daughter of the first Marriage in Fee which Infeftment is given by the said Thomas Brown her Husband being then Bailly for the time Agnes Happiland Dispones this Tenement to Thomas Brown Heir of the Marriage betwixt the said Umquhil Thomas Brown and Marjory Bruce and for the price thereof gets a Bond relative thereto Thomas Brown being Charged upon this Bond raises Reduction upon Minority and Lesion To the which it was answered there was no Lesion because the Disposition of the Land was an equivalent Onerous Cause It was answered that the Disposition was no Onerous Cause because the Lands Disponed belonged not to the Disponer but to the Suspender himself in so far as they were Conquest by Marjory Bruce while she was Spouse to his Father so that the Money wherewith she Acquired the same belonging to the Husband jure Mariti the Land must also be his unlesse it were condescended and instructed that she had Heretable Sums not falling within the jus Mariti wherewith this Right was Acquired It was duplyed that this was but a â—aked Conjecture and Presumption which is sufficiently taken off by the Husbands giving Seising as Bailly It was answered that this was actus officij which he could not refuse but he knew that the Infeftment in favours of his Wife would accresce to himself The Lords repelled the Reasons of Suspension and Reply in respect of the Answer and Duply and found that the Fee of the Land belonged to the Wife and her Daughter and that there was no Lesion in giving Bond therefore Laird Aitoun contra Iames Fairy Eodem die THe Laird of Aitoun having bought a Horse from Iames Fairy pursues for repetition of the price and for entertainment of the Horse since upon this ground that he offered to prove by the Witnesses at the buying of the Horse that Iames Fairy promised to uphold him but six years old and that he was truly twelve years old The question was whether this was only probable by Oath or Witnesses But the Lords perceiving an anterior question how soon the Horse was offered back by the Pursuer they ordained him to condescend that very shortly thereafter he offered the Horse back otherwise they would not sustain the Processe John Papla contra the Magistrats of Edinburgh Ianuary 31. 1668. JOhn Papla pursues the present Magistrats of Edinburgh for
payment of a Debt due to him by a Person Incarcerat in their Tolbooth who escaped The Defenders alleadged no Processe till the Magistrats who then were especially Bailly Boyd by whose Warrand the Rebel came out be called 2dly The present Magistrats cannot be lyable Personally having done no Fault neither can they be lyable as representing the Burgh at least but subsidiarie after the Magistrats who then were in culpa were Discussed now after six or seven years time The Pursuer answered that the Prison being the Prison of the Burgh the Burgh was lyable principaliter and if only the Magistrat doing the Fault were lyable the Creditor might oftimes loose his Debt these being oftimes of no Fortune or sit to Govern and the Town who Choiseth them is answerable for them neither is the Pursuer obliged to know who were Baillies at that time or who did the fault and so is not bound to Cite them The Lords Repelled the Defences and found the present Magistrats as representing the Town lyable but prejudice to them to Cite them who did the Fault Robert Ker contra Henry Ker February 5. 1668. RObert Ker of Graden having granted Bond to Robert Ker his Son for 3000. Merks of borrowed Money and 3000. Merks of Portion for which Sum he did Infeft him in an Annualrent of 240. Pound yearly Suspending the Payment of the one half of the Annualrent till his Death whereupon Robert pursues a Poinding of the Ground It was alleadged for Henry Ker the eldest Son who stands now Infeft in the Lands Absolvitor because he stands Infeft in the Lands before this Infeftment of Annualrent being but base took effect by Possession The Pursuer answered first That the Defenders Infeftment being posterior and granted to the appearand Heir without a Cause Onerous it is perceptio Haereditatis and if the Father were Dead it would make the Defender lyable as Heir and therefore now he cannot make use thereof in prejudice of the Pursuer 2dly The Pursuer offered to prove that his Annualrent was cled with Possession before the Defenders Infeftment in so far as he Received the half of the Annualâ—ent which is sufficient to validat the Infeftment for the whole seing there are not two Annualrents but one for the whole Sum and seing the 〈◊〉 could do no more the one half of the Annualrent being Suspended till his Fathers Death The Lords found this second Reply relevant and found the Possession of the half was sufficient to validat the Possession for the whole but superceded to give answer to the former Reply till the conclusion of the Cause not being clear that the Defense upon the Defenders Inseftment could be taken away summarly though he was appearand Heir without Reduction upon the Act of Parliament 1621. Mr. George Iohnstoun contra Sir Charles Erskin February 6. 1668. THe Lands of Knockâ—â—â— being part of the Lands of Houdon did belong to Umquhil Richard Irwing Umquhile Mr. Iohn Alexander Minister having Charged Robert Irwing to enter Heir in special to the said Richard his Grand-sir in these Lands he did Appryze the same from Robert as specially Charged to enter Heir but Robert died before he was Infeft or Charged the Superior Sir Charles Erskine hath Appryzed from Mr. Iohn Alexander all Right competent to him in these Lands and thereby having Right to Mr. Iohn Alexanders Appryzing he is Infeft thereupon After Robert Irwings Decease his Sisters served themselves Heir to Richard their Grand-sir and are Infeft do Dispone to Mr. George Iohnstoun who is also Inseft Mr. George pursues for Mails and Duties in the Name of Irwings his Authors Compearance is made for Sir Charles Erskine who alleadged Absolvitor First Because he hath been seven years in Possession of the Lands in question by vertue of Mr. Iohn Alexanders Appryzing and his own and so is tulus exceptione in judicio possessâ—rio and cannot be quarrelled till his Right be Reduced 2dly He is potior jure and his Right must exclude the Pursuers because he having Right to Mr. Iohn Alexanders Appryzing which was Deduced against Robert Irwing as specially Charged to enter Heir so Richard as to him is in as good case as Robert had been actually Entered and Infeft by the Act of Parliament declaring that when Parties are Charged to enter Heir and lyes out sicklike Processe and Execution shall be against them as they were actually Entered likeas the Tenor of the special Charge introduced by Custom to perfect the foresaid Act of Parliament bears expresly that the Person Charged shall enter specially and obtain himself Infeft with Certification that the user of the Charge shall have the like Execution against him as if he were Entered and Infeft and therefore Mr. Iohn Alexanders Appryzing against Robert Iâ—wing so Charged was as effectual to him as if Robert had been actually Infeft in which case there is no question but the Appryzer might obtain himself Infeft upon the Appryzing after the Death of him against whom he Appryzed and that summarly without new Processe and there is no difference whether the Superior were Charged during the Life of the Debtor or not The Pursuer answered to the first that no Party can claim the benefit of a Possessory judgement unlesse he have a real Right by Infeftment at least by Tack but a naked Appryzing thoug it may carry Mails and Duties as a naked Assigation and is valide against the Debtor or his Heir â—et in it self it is an incompleat Right and not become real It was answered that the Appryzing alone was sufficient as was lately found in the Case of Mr. Rodger Hog against the Tennent of Wauchtoun The Lords repelled the first Defense and found there was no grond for a Possessory judgement here there was neither Infeftment nor Charge upon the Appryzing The Pursuer answered to the second Defense that it was not relevant to exclude him because Richard Irving having Dyed last vest and seised in the Lands and Robert Irving never having been Inâ—eft the Pursuers Roberts Sisters who were Heirs appearand buth to Richard their Grand-sir and Robert their Brother could not possibly obtain themselves Infeft as Heirs to their Brother becuse the Inquest could not find that Robert Dyed last vest and seised as of Fee but Richard and any Appryzing against Robert who was never Infeft evanished seing no Infeftment was obtained upon the Appryzing nor no Charge used against the Supperior during Roberts Life so that the Appryzer ought to have Charged de novo these Pursuers to Enter Heir to Richard and ought to have Appryzed from them as lawfully Chaged and to have obtained Infeftment upon the Appryzing in their Life and as the Sisters would exclude the imperfect Diligence against the Brother so much more may Mr. George Iohnstoun who is their singular Successor It was duplyed by the Defender that Mr. George Iohnstoun albeit he be singular Successor yet he is Infeft after Sir Charles Erskin and therefore the question now is only betwixt
or out of any other the Canons Portions of this Kirk George Shein contra Iames Christie Eodem die G Christison of Bassallie gave an Infeftment to his eldest Son of the Lands of Bassallie and to his second Son of an Annualrent of 86. merks forth thereof both of one date and both reserving the Fathers Liferent Iames Christie hath Right by Appryzing led against the eldest Son in his Fathers life to the Lands George Shein hath Right by Adjudication against the second Son to the Annualrent and pursues a poinding of the Ground It was alleadged for Iames Christie that Sheins Authors Right was base never cled with Possession and so null whereas his Right was publick by an Appryzing and had attained to Possession It was answered that the Fathers Liferent being reserved the Fathers Possession was both the Sons Possession and did validat both their Rights It was answered that a Disposition by a Father to his own Children reserving his own Liferent though Infeftment follow is alwayes accounted simulat and never accounted cled with Possession by the Fathers Possession as hath been frequently decided It was answeredâ— that albeit in Competition betwixt base Infeâ—tments granted to Children and Infeftments granted to Strangers upon onerous Causes the Childrens Infeftment though prior and though reserving the Fathers Liferent uses to be preferred yet here that holds not for both Infeftments are granted to Children both of one date and neither of them to Strangers or upon onerous Causes and therefore the Reservation here is without suspition of Simulation and the Fathers Possession must both validat the second Sons Annualrentâ— and the eldest Sons property Which the Lords found Relevant and that the Fathers Possession by this Reservation did sufficiently validat both the Sons Infeftments and that the Possession of one after his Death or of any succeeding in his Right did not exclude the other or his singular Successor Mr. Robert Burnet contra Swane Eodem die MR. Robert Burnet Tutor of Lâ—yes pursues for Mails and Duties of a Tenement in Aberdene It was alleadged for Swane the Defender Absolvitor because he stands Infeft in the Lands and by vertue of his Infeftment in Possession and albeit the Pursuers Infeftment be prior it is null neither being Registrat in the Register of Seasins nor in the Town Clerks Books of Aberdene according to the custom of all Burghs but hath been latent many years and no vestige of it in the Town Books so that the Defender was in bona fide to Contract with the common Authour and Apprize thereafter It was answered that the Act of Parliament excepted Seasins within Burgh and the Pursuer having the Town Clerks Subscription was not answerable for his keeping a Prothecal or Record Which the Lords found Relevant and sustained the Seasine Colquhoun and Mcquair contra Stuart of Barscub Iuly 1. 1668. THe Laird of Barscub having seued certain Lands to Colquhoun and Mcquair to be holden of himself in the Contract of Alienation there is a special Clause that because the Lands are holden Ward of the Duke of Lenox therefore Barscub is obliged to relieve these Feues of any Ward that shall fall in time coming Thereafter Barscub Dispones the Superiority of these Lands and by the Death of his singular Successor his Heir falls in Ward whereupon Sentence was obtained against the Feuars for the Ward Duties and the avail of the Marriage and they now pursue relief against Barscubs Heir upon the Clause of Warrandice above-written The Defender alleadged that the Libel was no ways Relevant to infer warrandice against him upon the said Clause because the meaning thereof can only be that he as Superiour and so long as he remained Superiour shall relieve the Feuars which ceases he being now Denuded of the Superiority otherwise it behoved to have imported that he should never sell the Superiority without the Vassals consent which no Law doth require or if the Lands had been Appryzed from him he could not be lyable for the Ward of the Appryzers Heir which is cleared by the ordinary Custom there being nothing more frequent in Charters than Clauses of absolute warrandice and yet none was ever overtaken thereby after they ceased to be Superiours The Pursuer answered that his Libel was most Relevant because this being an Obligement conceived in their favours by Barscub not qualified as Superiour no Deed of Barscubs without their consent can take it from them unless Barscub when he sold the Superiority had taken the new Superiour obliged to receive the Vassals with the same warrandice but now the new Superiour not being obliged by this personal Clause Barscub the old Superiour must remain obliged especially in a Clause of this nature which is express for all Wards to come The Lords Repelled the Defense and Sustained the Libel and found the Superiour albeit Denuded lyable for Warrandice Thomas Rue-contra Andrew Houstoun Iuly 3. 1668. ANdrew Houstoun and Adam Mushet being Tacksmen of the Excize did Imploy Thomas Rue to be their Collector and gave him a Sallary of 30. pound Sterling for a year thereafter he pursued Andrew Houstoun upon his promise to give him the like Sallary for the next year and in absence obtained him to be holden as confest and Decerned Which being Suspended he obtained Protestation and therefore raised Caption and apprehended Andrew Houstoun at Wigtoun who gave him a Bond of 500. Merks and got a Discharge and being Charged upon the Bond of 500. Merks he Suspends on these Reasons that Thomas Rue had granted a general Discharge to Adam Mushâ—t who was his Conjunct and coâ—reus deâ—endi afâ—er the alleadged Service which Discharged Mushâ—t and consequently Houstoun his Partner 2dly The Decreet was for Sallary and it was offered to be proven that Rue for his Malversation was by warrand from Ceneral Monk excluded from Collection that year and by the Discharge of the Decreet and this Bond both of the same Date and VVitnesses it did appear that this Bond was granted for the Decreet and if the Decreet were Reduced by the Reduction thereof depending the Bond would fall in consequence as granted for the same Cause The Charger answered that he was now not obliged to Dispute in relation to the Decreet First Because the Suspender had Homologat the same by taking a Discharge thereof and giving a Bond therefore 2dly There was not only a Homologation but a Transaction upon a Reference made by the Parties to â—aldone conform to his Attestation produced so that that Transaction cannot be recalled upon any pretence but is the most firm and Obligatory Contract of any The Suspender answered that his payment making and taking Discharge was no Approbation nor Homologation but that he might reduce the Decreet and repeat if he had payed or been poynded and so may retain especially seing it was done metu Carceâ—is he being taken with Caption and as to the Transaction he denies the same neither can it be instructed by Baldones Attestation but by the
Representing his Father pursues Aitoun of Inchderne as Representing his Father for the Sum contained in the Contract who alleadged Absolvitor because the Pursuers and his Fathers Right flowing from the Marriage and it Dissolving within year and day his Right ceaseth and farther alleadged that all things were now in the same condition as before the Marriage so that the Contract of Marriage was void and the Discharge granted in the first Security was void and the first Security being Heretable belongs to Anna's Executors from whom the Defender has Right by Assignation The Pursuer answered that the Defense is no wayes Relevant because though the Marriage Dissolved within year and day and that thereby the Tocher and Jointure became void yet what was Acted in Relation to Mr. Robert Aitoun who was a third Party viz. the Discharge and Renunciation of the first Security stands valid as to him for if the Lands burdened had been sold to any other that burden being once Discharged and Renunced could never affect them so that whatever is in a Contract Matrimonial Extrinsick and relating to third Parties is valid and the acknowledgment of the Money contained in the Contract is at least acceptilatio which extinguisheth the first Security in the same way as if real payment had been made in place of which payment standeth the new Security granted to the Husband so that now there is neither Debitum nor Creditum betwixt Anna Aitoun and umquhil Mr. Robert Aitoun or their Representatives but by the Dissolution of the Marriage the Husband and his Heirs becomes lyable to pay the Tocher but not to the Wifes Heirs but to her Executors for the Tocher being payed or satisfied and the old Security taken away the Husbands obligement to pay is clearly moveable and so belongs to the Pursuer as Executor and universal Legator to his Wife and not to the Wifes Heirs or the Defender who has Right from them The Defender answered that the Tocher never having been uplifted but remaining in the same Debitors hands as before the Marriage omnia redeunt in pristinum statum and the Discharge granted to the Debitor in Contemplation of the Marriage is also void so that if the Husband had Died and the Wife Survived if she had pursued Mr. Robert Aitoun upon the first Security and if he had Defended upon the Discharge contained in the Contract of Marriage he would have been Excluded by this Reply that that Discharge being granted in Contemplation of the Marriage is now void by the Dissolution thereof within year and day especially seing the Debt yet remains in the Debitors hand 2dly The Defender alleadged that the Discharge though it were valide was not habilis modus to extinguish the first Security being a real Right 3dly That the new Security granted to the Husband being Heretable and the Husbands therein ceasing it accresceth to the Wife as if it had been granted to her and so can only belong to the Defender as having Right from her Heirs and not to the Pursuer as being her Executor The Pursuer answered that the first Security was totally extinct by Acceptilation and by the Discharge thereof granted to the Debitor in the Contract of Marriage and though the Wife had Survived and pursued the Debitor and he had excepted upon the Discharge her Reply upon the Dissolution of the Marriage would not have been Sustained to annul the Discharge because whatever might have been done if the Debitor could pretend no Damnage or Interest Yet where the Debitor had granted a new Security to the Husband which could never be taken away without the Discharge and Renunciation of the Husbands Heirs the Debitor could never be Decerned to pay the Wife so long as the Security to the Husband stood which Security could never accresce to the Wife at least could never so accresce as to make it an Heretable Security to the Wife but she could only have Right of Repetition against the Husband And the question being here concerning the changing of the condition of a Sum from Heretable to Moveable as a Requisition or Charge during the Marriage would have made the Sum Moveable multo magis an Innovation and Acceptilation by a Discharge and new Security And whereas it was alleadged that the Discharge was not habilis modus It was answered that this Sum not being secured by an Infeftment of Annualrent or Wodset but only by a Provision burdening another Infeftment of Property with the Sum there needed no Resignation but the Discharge and Renunciation is sufficient The Lords found the first Security to be wholly taken away by the Discharge contained in the Contract of Marriage which they found valid as being granted to a third Party notwithstanding of the Dissolution of the Marriage and therefore found it to belong to the Husband as having Right to the new Security and as Executor to his Wife and not to the Defender as having Right from the Heirs Mary Winrham contra Mr. Iames Eleis December 15. 1668. JAmes Murray of Deuchar having Married his Daughter to Iames Eleis of Stenopmilâ— leaves to the seven Sons of the Marriage beside the Heir 7000. Merks and the Portion of the Deceasing to accresce to the Surviving which Sum was uplifted by Iames Eleis who in his Testament nominats his eldest Son and Heir his Executor and universal Legator and ordains him to pay all his Debts out of the first end of his Moveables and then leaves 9000. Merks to Patrick his second Son in satisfaction of all that he might succeed to by the Decease of the Testator his Father Margaret Winrham Relict and Executrix Creditrix to her Husband obtained a Decreet before the Commissars against Mr. Iames Eleis who Suspends on this Reason that Patricks Legacy of 9000. Merks being in full satisfaction of all he could demand by his Fathers Death must be understood in Satisfaction of the said Legacy left by Iames Murray which being lifted by Iames Eleis the Testator and so becomes his Debt debitor non praesumitur donare 2dly The Commissars Decreet is most unjust in Decerning Annualrent where there was none due by Paction the Sum being but a Legacy which never bears Annualrent The Charger answered to the first that the Brokard debitor non praesumitur donare holds not in many cases especially in Provisions of Children by their Fathers who are obliged jure naturae ex pletate pateâ—na to provide them And in this Testament the Executor is appointed to pay all the Debts without any exception of this or any other and the Testator had a plentiful Estate it can no ways be thought that both the Legacy and this Sum in question was too great a Portion to his second Son as for the Annualrent the Father being Tutor and lawful Administrator to his Son ought to have imployed it profitably and no doubt did being a most provident man It was answered that the Son never having insisted for this Sum nor having ever demanded Annualrent during his
Lands for far less then the true price The Lords found the Act not to extend to Appryzers unless the sums were a competent price for the Land Appryzed and therefore found the Letters orderly proceeded Isobel and Margaret Simes contra Marrion Brown Ianuary 5. 1669. BY Contract of Marriage betwixt umquhil Thomas Sim and Marion Brown Iohn Flowan Marions Master is obliged to pay 300. Merks of Tocher and Thomas Sim is obliged to imploy the said 300. Merks and 200. Merks further for the said Marion her Liferent use the said Thomas having two Daughters Isobel and Margaret Sims he lends a sum of 400. Merks to Thomas Brown and takes the Bond on these Terms to be payed to him and the said Marion Brown the longest liver of them two in Liferent and after their Decease to Margaret and Isobel Sims The said Isobel and Margaret having pursued the said Marion before the Commissars for Delivery of this Bond as belonging to them after their Fathers Death The Commissars Assoilzied the said Marion from Delivery of the Bond and found it did belong to the said Marion her self not only as to the Annualrent but as to the Stock because her Husband having no other Means but this Bond and not having fulfilled her Contract she had Confirmed her self Executrix Creditrix in this sum and behoved to Exclude her Husbands two Daughters of a former Marriage who were provided and Forisfamiliat before Of this absolvitor the Daughters raised Reduction on this Reason that this Sum could not be Confirmed not being in bonis defuncti the Father being but Liferenter and the Daughters Feears and though they were but as heirs substitute they exclude Executors and need no Confirmation 2dly The Husband being but obliged to Employ this Tocher and 200. merks more the Pursuer must instruct that the Tocher was payed 3dly The Wife intrometted with as much of her Husbands Goods as would satisfie her Provision It was answered that the Wife not being obliged for her Tocher but another Party who was solvendo and neither being obliged nor in capacity to pursue therefore could not now after so long a time be put to prove that the Tocher was payed and for her Intromission she had Confirmed and made Faith and the Pursuers might take a dative ad omissa if they pleased but could not hoc ordine Reduce or stop her Decreet upon compearance The Lords found that albeit in Form the Bond should have been Reduced as being done in fraudem of the Wife as being a Creditor and thereafter Confirmed yet now the matter being before the Lords and the Parties poor they found the Husbands Substitution of two provided Daughters by a former Marriage null as to the Wifes provision by the Act of Parliament 1621. without necessity of Reduction the matter being but a personal Right and found the Wife not obliged to instruct the Tocher payed and therefore assoilzied from the Reduction but prejudice to the Pursuers to Confirm a dative ad omissa William Zeoman contra Mr. Patrick Oliphant and Dam Giels Moncrief Eodem die IN a Compt and Reckoning betwixt these Parties anent the satisfaction of an Appryzing the Auditor in respect that Mr. Patrick Oliphant and Dam Giels Moncrief were Contumacious and compeared not did Decern conform to William Zeomans Summonds finding the Sum satisfied and ordained them to Remove whereupon William Zeoman obtained Possession and having been several years in Possession Mr. Patrick Oliphant obtained himself and the said Dam Giels to be Reponed against the said Decreet for his Contumacy and a Writer to the Signet past Letters of Possession in his favours against William Zeoman but without a Warrant from the Lords which were found null and this Writer Deposed but Mr. Patrick having attained Possession by these Letters William Zeoman insists against him as an Intruder to quite the Possession It was alleadged for Mr. Patrick that William having obtained Possession unwarrantably by Decreet upon his pretended Contumacy and he being now restored there against he is in statu quo prius before that Decreet at which time he was in lawful peaceable Possession which only should stand and neither of the unwarrantable Possessions be regarded It was answered that William Zeomans Possession was by vertue of a Decreet then standing autore pretore and so was not vitious but Mr Patricks was without Warrant of the Lords and so was most vitious It was answered that Mr. Patrick was instantly content to Debate his Right frustra petitur quod mox est restituendum It was answered that spoliatus ante omnia est restitâ—endus and is not obliged to Dispute any Right till first he be Restored Which the Lords Sustained and ordained William Zeoman instantly to be Restored to the Possession My Lord Balmerino Supplicant Ianuary 7. 1669. MY Lord gave in a Bill to the Lords Representing that his Uncle was Dead and that he is nearest Heir-male to him in whose favours his Estate is provided and therefore desired that Commission might be granted to certain Persons in the Countrey to Inventar Seal and Secure his Charter Chist and to make patent Doors in his Houses Coffers and Cabins for that effect and to take my Lady his Relicts Oath where the Evidents were to the effect foresaid Compearance being made for my Lady desiring a sight of the Bill till the next day and alleadging that it was notour to the Lords that my Lady had a Disposition to the whole Estate whereupon Resignation had past in Exchequer and that the Evidents ought to be left open to the effect my Lady may instruct her Charter conform to the Disposition The Lords refused to give up the Bill it being their ordinar Course to grant such Commissions without calling or hearing Parties and that a short delay might prevent the effect of the Commission and therefore granted Commission to certain Noblemen and Gentlemen or any one of them to Inventar Seal and Secure the Evidents and to open Doors Coffers and Cabinets for that effect but refused to give Warrant to take my Ladies Oath Captain Newman contra Tennents of Whitehil and Mr. Iohn Prestoun Ianuary 8. 1669. CAptain Newman having Appryzed the Lands of Whitehil from Prestoun of Craigmiller his Debitor and being thereupon Infeft pursues the Tennents for Mails and Duties Compearance is made for Mr. Iohn Prestoun who produces a Disposition from Craigmiller his Brother of the Baronies of Craigmiller Prestoun and Whitehil Which Disposition relates this Debt of Captain Newmans and many other Debts and for satisfaction thereof Dispones these Lands to Mr. Iohn Reserving the Disponers and his Ladies Liferent containing a Reversion upon ten merks and containing a provision that it should be leisom to Craigmiller during his Life and after his Decease to Mr. Iohn to pay any of the Creditors contained in the Disposition they pleased without contributing the price proportionally to the rest of the Creditors and also produces a Renunciation by Craigmiller whereby he Renunces the
proven they were not obliged to take Terms to produce or otherwise upon this pretence of Part and Pertinent before the samine were instructed any party might necessitate all his Neighbours to make patent to him their Charter Chists The Pursuer answered that the Defenders ought to take a Term to produce and that before Certification at that Term he would prove Part and Pertinent and alleadged the Practique in the Case of the Town of Sterling observed by Dury the 24. of Iune 1625. The Lords Sustained the Defense and would not put the Defenders to take Terms till the Lands in question were first proven to be Part and Pertinent and allowed the Pursuer to insist primo loco in this Declarator for that effect and as to the Practique alleadged they found in that Case the Defenders alleadged upon no Right whereas the Defenders propone here upon an expresse Infeftment Laird Kilburny contra the Heirs of Tailzie of Kilburny and Schaw of Greinock Eodem die UMquhile Sir Iohn Crawford of Kilburny having only two Daughters the eldest Married to Blackhal Dispones his Estate to Margaret the younger and to the Heirs-male of her Body which failing to the eldest Heir Female without division throughout all the Succession and failling the Issue of this Daughter his eldest Daughter and her Issue and failling of these Iordanhil and Kilburny their Issue all which failling his own Heirs and Assigneys whatsomever In which Disposition there is a Clause that the said Margaret and the Heirs of Tailzie should not alter the Tailzie nor Dispone or burden the Lands ' or contract Debts whereby they might be Apprized and carried from the Heirs of Tailzie otherwise the Contraveeners should lose their Right ipso facto and there should be place to the next Heir of Tailzie but there is a Clause subjoined that the said Margaret and the Heirs of Tailzie might Sell Dispone and Wodset the Lands of Easter Greinock and Carsburn and might burden the same with Sums of Money for paying and satisfying of the Defuncts Debts The said Margaret Crawford having Married the Earl of Crawfords Son Patrick they did Sell the Lands of Easter Crawford and Carsburn to Sir Iohn Schaw of Greinock at a Rate far above the ordinar Price having expected a Bargain with the Town of Glasgow for a Harbour there but the Town having made another Bargain with New-wark Greinock pursued Kilburny either to annul the Minut or fulfil the same and to secure him in relation to the Clause de non alienando and to that effect Kilburny raises a Declarator against the Heirs of Tailzie to hear and see it found and Declared that by the Right granted to the Lady by her Father she might lawfully Sell the Lands of Easter Greinock and Carsburn The Heirs of Tailzie compeared not but Greinock compeared and was admitted for his Interest which was that the Processe being for his security he might propone all the Defenses which he thought competent to the Heirs of Tailzie and alleadged that the Libel was no ways Relevant bearing a power to Sell simply but that it ought to have been conform to the Clause in the Disposition viz. to Sell Wodset or Burden for payment of the Defuncts Debts which did necessarly import that no further could be Sold then what was sufficient to pay the Debt and therefore no Processe till the Libel were so ordered and the Debts produced The Pursuer answered that he opponed the Clause having two Members one bearing with full power to Dispone the Lands of Easter Grienock and Carsburn and the other bearing to affect the same with Sums for paying of the Defuncts Debts which payment of the Defuncts Debts was but the end motive and consideration for which the power was granted but was no restriction quality or limitation of the power 2dly It did only relate to the second Member of the Clause and not to the first Member which bore with full power to Sell and Wodset c. which full power is directly opposit to a limited power 3dly Albeit the Pursuer were obliged to instruct the Debt and apply the price for satisfying thereof yet the Clause doth not limit him to Sell only so much as will be equivalent to the Debt but he satisfying the Debt more or lesse hath acted conform to the Clause which uses to be so exprest in Clauses of this nature as that the Heirs of Tailzie may Dispone so much as will be sufficient for payment of the Debt which not being exprest these restrictive Clauses being against common Law are strictissimi juris and not to be extended beyond what the words expresly bears 4thly Albeit the Pursuer were obliged to instruct that there were Debt which might be a price yet he were not obliged to instruct that they would be equivalent to this price but to such a price as were not a third part within the ordinar Rate in which latitude every Seller hath power and the alienation cannot be quarrelled and albeit that price would be more then the Debt yet these Lands being two intire Tenements which none would Buy by Parcels the Pursuer could only be comptable to the Heirs of Tailzie for the superplus The Defender answered that he opponed the Clause being one and copulative and that these Lands being put per expressum in the Clause de non alienando It could not be thought that the immediat following Clause would give the Lady as much power as to these Lands as if they had not been in the former Clause but the intent to satisfie the Defuncts Debt being the last words in the Clause is relative to the whole Clause and natively resolves into an Restriction or Quality not bearing that they night be the more able to pay the Debts but for payment and satisfaction of the Debts The Lords considering that Heirs of Tailzie were absent and that as to them the Interlocutor would be in absence found it most just and safe for both Parties to declare conform to the Clause that the Alienation was valide for satisfying the Defuncts Debts and found not that the Debts behoved to be equivalent to this price The Creditors of John Pollock contra James Pollock his Son January 21. 1669. THe Creditors of John Pollock having Adjudged his Tenement for their Debt and James Pollock having gotten a Bond of 5000. Merks from his Father payable after his Fathers death which was granted after he was Married he did also Apprize thereupon within year and day of the Adjudication The Adjudgers raise a Reduction of this Bond and the Apprizing following thereupon upon these Reasons First Because the Bond was granted for Love and Favour and albeit it bear borrowed Money yet the said Iames has acknowledged by his Oath that it was for Love and Favour and so being granted betwixt most conjunct Persons after the contracting of their Debts it is null by the Act of Parliament 1621. The Defender alleadged that the Reason was not Relevant as to such Debts
as were not constitute by Writ anterior to the Defenders Bond and as to any constitute by Probation of Witnesses for proving Bargains Merchant Compts and Furnishing wherein the Probation and Decreet are both after the Bond they cannot be said to be anterior Debts because they are not constitute till Sentence and albeit the Sentence bear the Debt to have been contracted before this Bond yet that cannot make them anterior Debts because Writ cannot be taken away by Witnesses proving an anterior Debt which would be as effectual against the Writ as if the payment thereof had been proven by Witnesses and the time of Bargaining or Furnishing being a point in the Memory and not falling under the Sense no body would be secure who had Writ but that Bargains and Furniture might be proven anterior thereto The Pursuer answered that his Reason was most Relevant and the constitution of the Debt is not by the Decreet or Probation but by the Bargain and Receipt of the Goods or Furniture after which no posterior Deed of the Debitor can prejudge the Creditors Furnishers and albeit in many cases Witnesses prove not and Witnesses are not admitted to prove where Writ may and uses to be interposed yet where the Probation is competent the Debt is as well proven thereby for the time of contracting as it is by Writ neither doth that ground that Writ cannot be taken away by Witnesses any way hinder for the meaning hereof is only that the Payment or Discharge of that Writ must be proven by Writ and it were a far greater inconvenience if after Bargain and Furniture any Writ granted by the Debitor though without an Onerous Cause should prejudge these Creditors The Lords Sustained the Reason and Repelled the Defense and found Debts constitute by Witnesses to be effectual from the time of contracting and not from the time of Probation or Sentence to take away any posterior Deed of the Debitor done without a Cause Onerous The Pursuer insisted in a second Reason of Reduction that albeit these Debts were posterior to this Bond yet the samine ought to be Reduced as being a fraudulent conveyance betwixt the Father and the Son kept up and latent in some of their Hands without any thing following thereupon to make it known and publick so that the Creditors having bona fide contracted with the Father having a visible Estate were deceived and defrauded by this latent Bond if it were preferred to them 2dly This Bond bears only to be payable after the Fathers Death and so is but donatio mortis causa and but a Legacy or if it be inter vivos it is much more fraudulent and latent 3dly Bonds of Provision for Love and Favour granted to children are accompted but as their legitime still Revockable by the Father and all Debts contracted by him are preferable to them The Defender answered that there was neither Law Reason nor Custom to evacuat or exclude Bonds of Provision granted by Parents ex pietate paterna to their Children upon accompt of their Fathers posterior Debt especially if the Bonds were Delivered for there is no ground for any such thing by the Act of Parliament 1621. which relates only to Deeds done after the Debt contracted neither is there any sufficient ground of fraud that the Bonds were not made publick or known there being no obligement upon Parties to publish the same and Creditors have less means to know the Debts of other anterior Creditors then of Children having a just ground to suspect that they may be provided and to enquire after the same neither doth the delay of the Term of payment import either fraud or that the Bonds were donationes mortis causa The Lords would not Sustatin the Reasons of Reduction upon the Act of Parliament 1621. or upon the general ground that posterior Debts were preferable to all Bonds of Provision but ordained the Pursuer to condescend upon the particular ground of fraud in the Case in question The Collector-general of the Taxation contra the Director of the Chancellery Ianuary 22. 1669. THe Director of the Chancellery being Charged for the present Taxation imposed in Anno 1665. by the Convention of Estates Suspend on this Reason that he is a Member of the Colledge of Justice which by the Act of Convention are exempted It was answered that the Members of the Colledge of Justice were never further extended then to the Lords Advocates Clerks of Session and the Writters to the Signet It was answered that as the Signet depends immediatly and chiefly upon the Lords of Session and Writters thereto are of the Colledge of Justice so the Chancellery depends in the same way upon the Lords who issue Orders thereto from time to time to give out Precepts direct to Superiours or to Bailliffs Sheriffs for Infefting of Supplicants and therefore the Director of the Chancellary being Writer in that Office must enjoy that Priviledge as well as the Writers to the Signet for albeit the Director gives out Precepts and Brieves of Course without the Lords Warrand so do the Writers to the Signet give out many Summons of course without Warrand The Lords found the Director of the Chancellary to be a Member of the Colledge of Justice and therefore Suspended the Letters The Collector general of the Taxations contra The Master and Servants of the Mint-house Eodem die THe Master of the Mint did also Suspend for him and his Servants on this Reason that it was their ancient Priviledge to be free of Taxations for which they produced certain Gifts by former Kings of Scotland and Decreets of the Lords It was answered that the Act of Convention gives only Exemption to the Members of the Colledge of Justice and Discharges all former Priviledges and Exemptions It was answered that Acts of the Convention must be understood salvo jure which takes place even in Acts of Parliament 2dly They produced a late Gift granted by the King in Anno 1668. Exeeming the Master and Servants of the Mint from all Taxation Imposed or to be Imposed which is past the Exchequer and Privy Seal so that the King who hath Right to the Taxation might Discharge the same to whomsoever he pleased The Lords in respect of the new Gift did Exeem the Officers of the Mint and Suspended the Letters The Daughters of umquhil Chrichtoun of Crawfoordstoun contra Brown of Inglistoun Eodem die THe Daughters of umquhil Crichtoun of Crawfoordstoun as Heirs appearand to him immediatly after his Death gave in a Supplication to the Lords desiring his Charter-Chist to be Inventared and Sequestrat Which the Lords granted But before the Commission came to the House William Lowry the Ladies Nevoy upon notice of the Order Rode Night and Day and prevented the same so that all the Writs were carried from Crawfoordstoun to Inglisstoun Thereafter the appearand Heirs raised Exhibition ad deliberandum against the Lady and others who produced three Dispositions by Crawfordstoun in favours of Brown of
Defender alleadged Absolvitor because this Bond being granted without an Onerous Cause after the Provision of the second Contract of Marriage Providing all the Goods Conquest to the Heirs of the second Marriage who were thereby their Fathers Creditors for fulfilling of that Provision no voluntar Dâ—ed done without a Cause Onerous by their Father in Favours of his Daughter of a former Marriage could prejudge them or burden the Moveables acquired in that Marriage It was answered First That the Provision being to the Heirs of the second Marriage they being Heirs could not quarrel but were obliged to fulfil their Fathers Obligation whether for a Cause Onerous or not 2dly Such Clauses of Conquest are ever understood as the Conquest is at the Acquirers Death but does not hinder him any time of his Life to Dispose or Gift at his pleasure which if he might do to any Stranger there is neither Law or Reason to exclude him to do it to his Daughter And albeit it might be interpret Fraud if nothing were left to the Daughters of the second Marriage yet where they have a special Provision and something also of the Conquest with this burden their Father could not be found thereby to Defraud them or to hinder him to use his Liberty Which the Lords found Relevant and Sustained the Bond. Buohan contra Taits February 11. 1669. IN Anno 1623. George Tait of Pirn gave a seisine propriis mâ—nibus to George Tait his eldest Son and a Bond of that same Date bearing that he had given Seisine and obliging him to Warrand the same Reserving his own Liferent Thereafter in Anno 1640. he Contracts in Marriage with Ianet Buchan and for two thousand and five hundreth Merks of Tocher obliges him to Infeft her in the same Lands of Piâ—n whâ—rein his Son was Infeft whereupon she now pursues Reduction of George Tait youngers Infeftment against his Daughters upon these Reasons First That the Seisine propriis mâ—nibus was only the assertion of a Nottar without a Warrand 2dly That the Seisine had not four Witnesses 3dly That this was a clandestine latent Right most fraudulent betwixt a Father and his appearand Heir never having been published or taken effect by any Possession and cannot prejudge this Pursuer who is a most priviledged Creditor and brought a competent Tocher with her 4thly That this being an Infeftment by a Father to his appearand Heir then in his Family it was but as the legittime of Children which is still ambulatory at their Parents Disposal and so must be affected with this posterior burden of the Fathers Marriage It was answered to the first that the Bond of the same Date with the Seisine acknowledging the same is a sufficient adminicle and is equivalent as if the Father had Subscribed the Seisine To the second there is no Law requiring â—our Witnesses to a Seisine for that Act of Parliament is only where a Party Subscribes by a Nottar but relates not to Nottars Instruments Subscribed by themselves upon warrands or adminicles without which they are not valid with 40. Witnesses and without which two Witnesses are sufficient To the third this Infeftment is no ways Fraudulent or Latent seing it is Registrat in the Register of Seisines and Reserves the Fathers Liferent whose Possession is the Sons Possession and cannot be pejudged by a Deed so long posterior thereto To the last Infeftments taken to Children by Parents being Registrat by Parents can never be Recalled The Lords Assoilziâ—d from all the Reasons of Reduction and Sustained the Defenders Seisine Pot contra Pollock February 12. 1669. UMquhile Iohn Pollock having granted a Bond of 5000. Merks to Iames Pollock his second Son of the first Marriage and he having Adjudged thereupon Pot as Assigney by his Wife to her Provision and the Creditors Debts having also Appryzed raises Reduction of Iames. Pollocks Bond and Adjudication on this Reason that the said Bond was without a Cause Onerous given by a Father to a Son as is clear by the Sons Oath taken thereupon and therefore a posterior Debt Lent by Creditors bona fide to the Father is in Law preferable thereto 2dly This Bond to a Son can be but de natura legittimae having no Cause Onerous as if it had born for his Portion Natural and Bairns part In which Case it is Revockable by the Father and the Fathers Creditors though posterior are preferable thereto 3dly This Bond is Reduceable super capite doli as being a contrivance betwixt a Father and a Son to insnare Creditors to Lend to the Father who then drove a great Trade which must be inferred from these circumstances First The Son was foriâ— familiat and sufficiently provided before 2dly The Bond bears no Annualrent and the Term of payment is after the Fathers Death and remained ever latent betwixt the Parties without any thing following thereupon and these Debts were all Contracted within a very little after this Bond which was only a year before the Defuncts Death The Defender answered that the Reasons are no ways Relevant for there is neither Law nor Reason to hinder any person to give Bonds or Gifts freely there being no Impediment the time of the granting neither hath the Law any regard to posterior Creditors but in personal Debts whether for Causes Onerous or not the first Diligence was ever preferable nor was it ever heard that a posterior Onerous Obligation did Reduce or was preferred to a prior gratuitous obligation upon that ground that the prior was gratuitous And to the second Albeit this Bond were in satisfaction of a Portion Natural as it is not yet being Delivered to the Son who iâ— forisfamiliâ—t he can be in no other case then any other person to whom a bond were granted without an Onerous Cause As to the third Dolus non presumâ—tur and all machinations being only animi are only probable scripto vel juramento and can be inferred by no circumstances The Pursuer answered that albeit in dubio dolus aut câ—lpa non preâ—umitur yet it is doubtless probable otherwise then by the Oaths of the Parties whereunto Truâ—â— is never to be given in relation to their own shame contrivance or fraud and therefore matâ—ers of fact do necesâ—arly infer and presume fraud in many cases and in none more then this where the Deed was clandestine and latent betwixt Father and Son and where the Fathers Estate was thereby rendred insuffiâ—ient to pay both his Dâ—bt and the others contracted shortly thereaâ—ter and if it were sustained that such latent Rights betwixt conjunct persons were valide in prejudice of posterior Creditors contracting bona fide and not knowing the same all Commerce behoved to cease for every man might give such Bonds to his Children and continue to Trade and to borrow Money and upon the Childrens anterior Bonds be totally excluded The Defender answered that our Law by a special Statute in Anno 1621. having determined the cases of presumptive fraud and extended
Heir and not to their personal Creditors The Lords ordained the Witnesses to be Examined to remain in retentis concerning my Lord Cowpers condition the time of Subscribing the Disposition and of his coming abroad and allowed my Lady also Witnesses if she pleased for proving what his condition was at these times reserving all the Defenses and Alleadgances of either Party in the Cause for they found that the Creditors of Balmerino as appearand Heir had interest to Declare that their Debts might by legal Diligences affect the Estate of Cowper unprejudged by this Disposition as being made by Cowper on Death-bed and that the Reduction in so far as might contain such a Declarator would be Sustained for no Party can be hindered to Declare any point of Right competent to them and it was also thought that though there were many Witnesses called to find out who truely knew the Defuncts condition yet there might be few who truly knew the same and these might be removed out of the way either by Death or by Collusion Alexander Hamiltoun contra Harper Eodem die UMquhil Iohn Hamiltoun Apothecarie having purchased a Tenement in Edinburgh to himself in Liferent and his Son Alexander in Fee thereafter he borrowed 1000. merks from Thomas Harper and gave him a Tack of a Shop in the Tenement for the Annualrent of the Money After his Death Alexander his Son used a Warning by Chalking of the Doors by an Officer in the ordinary Form and he being Removed Alexander pursues now for the Mails and Duties of the Shop from his Fathers Death till the Defenders Removal who alleadged Absolviture because he bruiked the Tenement by vertue of his Tack bona fide possessor facit fructus perceptos suos It was answered that the Tack being but granted by a Liferenter could not Defend after the Liferenters Death and could not be so much as a colourable Title of his Possession 2dly That he could not pretend bona fidesâ— because he was Interrupted by the Warning It was answered by the Defender that the Tack was not set to him by Iohn Hamiltoun as Liferenter nor did he know but he was Feear being commonly so repute neither could the Warning put him in mala fideâ— because there was no Intimation made thereof to him either Personally or at his Dwelling-house but only a Chalking of the Shop-door The Lords Sustained the Defense and Duply and found him free of any Mails or Duties till Intimation or Citation upon the Pursuers Right here the Pursuer did not alleadge that the Warning by Chalking of the Shop-door came to the Defenders knowledge as done by the Pursue Sarah Cockburn and Mr. Patrick Gillespie contra Iohn Stewart and the Tennents of Lintone February 18. 1669. SArah Cockbâ—rn being Infeft in Liferent in an Annualrent of 1200. merks yearly out of the Barony of Lintone She and Mr. Patrick Gillespie her Husband insisting for her Annualrent in Anno 1657. obtained payment from Iohn Stewart and gave him a power to uplift the same from the Tennents and delivered to him the Letters of Poinding to be put in Execution Thereafter Mr. Patrick obtained a second Decreet against some Wodsetters whose Rights were posterior to the Annualrent for the years 1658 1659 and 1660. and upon payment of these three years did acknowledge payment made of the saids three years Annualrent and all bygones whereunto he had Right Mr. Patrick having granted Iohn Stewart a Bond to warrand him anent the year 1657. and that he had given no Discharges that might exclude him The Tennents of Lintoun Suspends the Charge for the year 1657. upon that Reason that Mr. Patrick had Discharged the Annualrent for the years 1658 1659 1660. and all preceeding whereunto he had right Whereupon Iohn Stewart Charged M. Patrick upon his Bond of Warrandice who Suspended upon this Reason that the Discharge could not exclude John Stewart albeit it bare all preceedings to which he had Right because when he granted the Discharge he had no right to the year 1657. which he had received from John Stewart and given him Warrand and his Letters to Poind for Mr. Johns Stewarts own use It was answered that unless that Order had been intimat the Right remained with Mr. Patrick and so his general Discharge extended thereto It was answered that albeit Intimation was necessar as to establish the Right in the Assigneys Person yet Mr. Patricks Warrand was sufficient to exclude him at least the matter of his Right being thereby dubious the general Discharge cannot be effectual against him if by the Oaths of the Wodsetters that got the Discharge it appeared that they paid him not the year 1657. and some of their Oaths being taken he who paid the Mony for himself and the rest Dâ—poned that the year 1657. was not paid and that there was no Decreet against the Wodsetters for 1657. but only against the Moveable Tennents to whom the Discharge containing the said general Clause was not granted The Lords found that in respect of the Oath the general Discharge extended not to the year 1657. and therefore Suspended the Letters against the said Mr. Patrick upon his Bond of Warrandice and found the Letters orderly proceeded at Iohn Stewarts Instance against the moveable Tennents of Lintoun for the year 1657. The Tennents further alleadged that since the year 1660. they did produce three Consecutive Discharges from Mr. Patrick which imports a Liberation of all years preceeding specially seing Mr. Patrick was never denuded of the year 1657. nor no Intimation made It was answered that such a Liberation is but presumptive presumptione juris and admits contrary Probation and is sufficiently taken away by the Oath of the Party acknowledging that year unpaidâ— and the Warrand given to Iohn Stewart to lift it for his own use before these Discharges The Lords Repelled also this Defense upon the three Discharges in respect of the Reply Trinch contra Watson Eodem die John Watson being Curator to Margaret Trinch and having Contracted her in Marriage with his own Sister Son there is a Disposition granted by her to the said Iohn Watson of all her Means and in the Contract he Contracts with her 1000. pounds whereunto the Heirs of the Marriage are to succeed and failing these to return to the said Iohn himself she died before the Marriage and David Trinch Stationer being Served Heir to her raises Reduction of the Disposition and Substitution in the Contract of Marriage upon two Reasons First That albeit the Disposition contain Sums of Money yet being of the same date with the Contract of Marriage in which Iohn Watson Contracts 1000. pound with the said Margaret Trinch which unquestionably has been all that has been gotten for the Disposition the said Disposition is a part of the Agreement in relation to the Marriage and must be understood as granted in Contemplation of the Marriage as if it had been Contracted in the Contract of Marriage so that the Marriage not having followed
no Fraud or Deceit qualified they repelled the Reasons and Decerned Fairie contra Inglis Iune 24. 1669. AT the Reporting of the former Interlocutor yesterday Fairie against Inglis It was further alleadged for Inglis that he offered him to prove by Fairies Oath that he was Circumveened in granting of the Ratification because Fairie upon that same Design drank him drunk Which Alleadgance the Lords Repelled in respect of the Bond and first Ticket wherein he Declared upon his Soul and Conscience never to come in the contrary Steuart of Gairntilly contra Sir William Steuart Eodem die SIr William Steuart having granted a Bond upon thir Terms that whereas he had obtained Disposition of the Lands of Innernytie partly by his Fathers Means and partly by his own and partly for granting the Bond underwritten and therefore he obliges himself to Infeft Iean Steuart his Sister and the Heirs of her Body which failzying ocertain Persons Substitute his Brethren and Nephews and a part of it tâ— return to himself and obliges himself to pay the Annualrent yearly to the said Iean and the Heirs of her Body and other Heirs of Tailzie foresaid during the not Redemption of the said Annualrent then there is insert a Reversion of the Annualrent from the said Jean and her foresaids by the said Sir William upon the payment of 20000. Merks and then a Clause of Requisition that if Jean after her Marriage desire the Money she or her foresaids might require the same to be paid after her Fathers Death and then a Clause that the said sum of 20000. should not be payable till five years after her Fathers Death and after her own Marriage The said Jean Assigns this Bond to her Brother Sir Thomas and he Charges Sir William who and some of the other Substitutes Suspends on these Reasons First That by the Conception of the Bond it was clear the principal Sum was not payable till Jeans Marriage and she being Dead unmarried is not now payable at all whereupon the Charger insisted for the bygone Annualrents and for granting an Infeftment of annualrent to him as Assigney conform to the Bond The Suspenders Reasons against the annualrent were first That this being an annualrent accessory to a principal Sum ablato principali tollitur accessorium so that the principal Sum being now not due to any by Ieans Death Dying unmarried the annualrent also must cease from her Death 2dly The annualrent is conceived payable to Iean and her Heirs but no mention of Assigneys 3dly Albeit ordinarly in such Obligations or Infeftments following thereon the first Person is Feear and the Substitutes are but Heirs who cannot come against the Feears Deed by Assignation or otherwayes yet where the Obligation is gratuitous and proceeds not upon sums of Mony belonging to the Creditor but upon the free Gift of a Parent bestowing the Sum there the Substitution implys a Substitution and Obligation upon the first Person and the Heirs of their Body to do no voluntar Deed to evacuat the Substitution so that albeit a Creditor or Successor for a Cause onerous might exclude the Substitutes yet another Heir appointed by the first person or a Donator or gratuitous Assigney cannot evacuat the Tailzie and exclude the Substitutes because in such Contracts uberrima fidei the mind of the Party who Gifted and freely granted the sum is chiefly to be considered so that it cannot be thought to be old Gairntillies mind that his Daughter might Change the Substitution and elude the Conditions of the Bond for the Suspending of the Requisition of the principal Sum till Iean were married must import that his meaning was to give her the Annualrent only till that time and the principal Sum to be a Tocher if she married which was to no purpose if the Annualrent remained perpetual for then the Heretor would certainly Redeem to purge his Land as he had done and the Sums Consigned would belong to the Assigney and the Clause Suspending the payment thereof if Iean married not signified nothing sed verba sumenda sunt cum effectu and the meaning of the Parties and conception of the Condition Suspensive must be preserved The Charger answered that he opponed the Bond wherein without all question Jean was Feear and the Substitutes being the Heirs of Tailzie cannot quarrel her Deed but are bound as Representing her to fulfil the same and albeit Ieans Assigneys be not exprest yet they are ever included where they are not expresly excluded neither is this Annualrent stated as a meer accessory because the Requisition of the principal Sum may be Discharged or may become by the Suspensive Clause ineffectual as now it does and yet the Obligement or Infeftment of Annualrent remains a perpetual Right though Redeemable at the Debitors option neither is there by Law or Custom any difference or exception whether the Annualrent be gratuitous or for a Cause onerous and for the meaning of the Father procurer of the Bond it must be understood as it is exprest only to exclude the lifting of the principal Sum by Iean upon the Clause of Requisition if she were not married and if his mind had been otherways it had been easie to have adjected a restrictive Clause or in stead of the Substitution to have set down a Provision that if Iean died unmarried the annualrent should belong to her Brothers and Sisters nominat but this being an ordinar single Substitution hath neither expresly nor implicitely any Condition or Obligation upon the Feear not to Dispone The Lords Repelled the Reasons of Suspension and found Iean to be Feear of the Annualrent and that she might assign the same and that the Substitutes could not quarrel the same Kennedy and Muir contra Iaffray Eodem die MR. Iohn Iaffray being presented to the Parsonage and Viccarage Teinds of Maybol and having obtained Decreet conform there is a double Poinding raised by the Heretors and Possessors of Fishartoun Mr. Iohn Iaffray craves preference as Parson and so having Right to the whole Benefice the other party called is Grange Kennedy and Muire of Mank-wood who craved preference on this Ground that the Teinds of Maybol was of old a part of the Patrimony of the Nunry of North-Berwick and the Prioress for the time with the consent of one Nune who was then only alive set a Tack thereof to Thomas Kennedy of Bargany and Gilbert Kennedy his Son and to Gilberts first Heir and after all their Deaths for three nineteen years The Prioress having thereafter at the Kings Desire Resigned the Teinds of Maybol to be a Parsonage did in her Resignation except the Tack set to Barganie which was alwayes cled with Possession and was assigned to David Kennedy of Ballimore and Transferred to Mr. Iohn Hutcheson and by him to Kennedy and Muir as to the Teinds of Fishartoun whereupon they crave preference It was answered for Iaffray that by their Right produced there is related another Tack granted by Mr. James Bonar Parson of
modo by Dissolution The Pursuer answered First That albeit the King or his Officers might quarrel his Right as not proceeding upon Dissolution or any other having their Right upon Dissolution yet the Defender cannot especially seing he hath Homologat the Pursuers Right his Predecessors to whom he is Heir having taken Infeftment thereupon likeas the Pursuer has satisfyed the Kings Interest by giving Bond to the Kings Advocat to hold the Lands Waird of the King in the same way as the Defender would therefore the Advocat hath declared he will not concern himself 2dly the Pursuer having obtained a new Right of the King since the Act of Parliament 1661. the same must be valide to him as to these Vassals who have or shall consent because the exception of the Act expresly bears that such a consent is equivalent as if the Vassal had Resigned in the Kings Hands in favour and for new Infeftment to the interposed Superior and had then taken a subaltern Right of him against which there can be no pretence so that by a Right in the exception it cannot be meaned a perfect Right proceeding upon Dissolution because that would be valide without the Vassals consent but that the Vassals consent being equivalent to a Resignation makes the Right valide without Dissolution Which the Lords found Relevant the Duke proving a sufficient consent but it was not Decided whether Major Ballantines taking Infeftment would import a sufficient consent conform to the exception of the Act so that he might not thereafter return to the King Iack contra Iack Iuly 15. 1669. PAtrick Iack having only three Daughters Margaret his eldest Daughter Married Iohn Dowglas and there is a Contract betwixt Iohn Dowglas and the Tutors of the other two Daughters dividing there Fathers Inheritance in three parts and mutally Disponing the same with Procuratory and Precept and there being a Salmond Fishing holding Waird of the King which fell to Margarets share Iohn Dowglas takes Infeftment upon the Tutors Precept Disponing for the other two that Fishing after his Death the said Margaret takes a Gift of Recognition of the said Salmond Fishing as falling by the Infeftment taken by Iohn Dowglas without consent of the Superior and thereupon pursues Declarator Katharin Iack and Robertson her Spouse and the other Sister pursue a Reduction of the Contract of Division as done by their Tutors in their Minority to their Lesion and in answer to the Recognition alleadged First That this Recognition occurred in the time of the English when Recognitions were excluded and such Infeftments by the Law then in use were allowed 2dly The Infeftment here granted proceeded only upon the Disposition of their Tutors whose acts except in what is proper to the Administration of their Office is void It was answered as to the first that they opponed the Decision in the case of Sir George Kinaired against the Vassals of the Master of Gray by which it was found that Infeftments taken of Waird-lands without the Superiors consent even during the Usurpation inferred Recognition and to the second that the Division among the Daughters was an act of Administration that the Daughters might have been compelled to do It was answered that there is no such Decision produced and that in the case of the Vassals of Gray they did continue in Possession several years after the Kings Restitution and did not take Confirmations but here the said Margaret one of the Sisters who should have taken Confirmation before she had continued Possession cannot have benefit by her own fault and make use of a Gift of Recognition in her own Person proceeding upon her own and her Husbands fault neither can the Division be a lawful act of Administration of the Tutors in so far as they granted them Precepts of Seising to be holden of their Pupil which no Law could have compelled them to do but only Procuratories of Resignation likeas it was Iohn Dowglas fault not to make use of the Procuratory but of the Prccept The Lords found no Recognition incurred but because the Parties might have been troubled if any other had taken the Gift they ordained the other two Sisters to pay their part of the expences of the Gift Mr. Archibald Dennistoun contra Semple of Fulwood Iuly 16 1669. THe Lairds of Fulwood elder and younger and Dennistoun being appointed Overseers by Culgrain to his Daughters the eldest Daughter being Married to Mr. Archibald Dennistouns Son there is a Contract betwixt Mr. Archibald and the three Overseers taking burden for the Daughters by which the Estate of Culgrain and Mr. Archibalds Estate are both settled in the Person of his Son and the Overseers are obliged to cause the Minors and their Curators become obliged to relieve Mr. Archibald of 17000. Merks Mr. Archibald Charges Fulwood upon the Contract who Suspends alleadging that the Clause can only import that he is lyable for his own part but not in solidum seing the Clause bears not the Overseers to be bound conjunctly and severally It was answered that the obligement is not for payment of a Sum which is divisible but for doing a Fact which is indivisible viz. the Minors being become bound to relieve which is all one as if the Overseers had been obliged to cause the Minors Subscribe a Bond of releif which could not divide but would have obliged every one of them in solidum It was answered that the result of the obligation being releif of Sums which are divisible the obligation at least the Damnadge and Interest succeeding in place thereof ought to be devisible for the obligation being factum alienum imprestable to the Overseer and the third Overseers that refuses to concur being the Chargers own Brother there is no reason that the Overseers who had no Office or obligement but were only Overseers which is not nomen juris should be lyable for the Chargers own Brother his third part thereof The Lords found them only lyable pro rata Barclay contra Barclay Iuly 20. 1669. THe Laird of Towy having only one Daughter Elizabeth Barclay and his Lands being provided to Heirs Male Dispones his Estate to his Daughter In which Disposition there being not only a Procuratory of Resignation but a Prcept of Seising the said Elizabeth was Infeft upon the Precept and being an Infant her Friends thinking it might infer Recognition took a Gift of the Recognition and now pursues Declarator thereon against the Tutor of Towy Heir Male and Captain Barclay as pretending Right by Disposition to the Estate It was alleadged for the Defenders Absolvitor because the Disposition granted by umquhile Towy to the Pursuer his Daughter was granted on Death-bed at the least it was retained by the Defunct and never delivered till he was on Death-bed and thereby it is null and cannot infer Recognition because the Law upon just consideration that Parties are presumed to be weak in their Minds and easily wrought upon after contracting of the Disease of which they Died has
his own and was not in his Family and albeit he were not eager to put his Father out of Possession of his House and Lands yet his continuance of Possession is not Relevant unless it had been to his death or for a longer time but any delay that was is because it is but of late that the Doctor hath obtained special Declarator till which he was not in capacity to discontinue his Fathers Possession Neither can Members of Court be admitted to prove that the Father wared out the Expence and procured the Gift because the Doctor at the passing of the Gift gave a Back-bond that he being satisfied of the Debts due to him and the Expences thereof there should be place for the Rebels Creditors and did make Faith at the passing of the Gift that it was to his own behove after which no Winesses can be admitted against him nor any other presumptive Probation of the simulation of the Gift Which the Lords found Relevant and found also the Pursuers Reply upon the Back-bond alleadged granted by the Doctor to his Father Relevant to be proven by the Doctors Oath only Sir Iohn Vrquhart Supplicant December 7. 1669. SIr Iohn Vrquhart gave in a Supplication to the Lords bearing that he being Cited before the Council upon several alleadged Riots and fearing that he might be excluded from appearing in his own defense by hornings against him therefore desired that the Lords would grant Suspension of all Hornings against him ad hunc effectum only to give him personam standi in judicio but prejudice to the Creditors of all other execution Which desire the Lords granted as to all Hornings he should condescend upon Pittrichie contra Laird of Geight December 15. 1669. MAitland of Pittrichie having obtained the Gift of Recognition from the King of certain Waird-lands held by the Laird of Geight of His Majesty pursues Declarator of Recognition upon Geights Alienation of the Lands wherein compearance was made for the Purchasers thereof who alleadged Absolvitor because the time of their Alienation by the Law and custom in force for the time Such Alienations without consent of the Superiour were valide The Pursuer answered that any Law or Custom that then was is now Annulled and Rescinded as from the beginning The Defender answered that no Laws of whatsoever Tenor can be drawn back by invalidat Deeds done by the Law and Custom for the time especially as to Matters Penal such as Recognitions so that Parties having acted bona fide according to any thing they could know for a Rule cannot fall in the Penalty and certification of Recognition which imports a contempt of the Superiour and cannot be inferred by any Deed legal for the time The Pursuer answered that the contempt is the same when the Vassal alieâ— natâ— his Fee without the Superiours consent and when such Alienations being by Law become void and the Superiours Right of Recognition revived the Vassal did not after that time crave the Superiours Confirmation as Heir so he Laird of Geight having never sought Confirmation from the King since His Restauration it is no less contempt than if since the Kings Restauration he had Alienat especially seing the King refuses Confirmation to none who demand it It was answered for the Purchasers that the Vassal being Denuded in their favour according to the Law standing for the time his fault cannot lose their Right for though he should collude against them yet that ought not to prejudge them and there being no obliegment upon the Vassal to seek a Confirmation to the behove of the Purchasers they cannot be prejudged for not obtaining the same The Pursuer answered that the Purchasers might have craved the Kings Confirmation of their Right both for themselves and in name of Geight the immediat Vassal which Geight neither would nor could oppose The Lords Repelled the Defenses in respect of the Reply that no Confirmation was craved neither by the Vassal nor Purchasers his Sub-vassals which they might have done if they had pleased and therefore declared the Lands to be Recognosced Innes contra Innes Ianuary 5. 1670. Innes having granted an Assignation of an Heretable Bond of 6000. merks 4000. merks thereof to Robert Innes his eldest Son and 2000. merks thereof to William and Ianet Inness his younger Children and in case of Roberts Decease providing his part amongst the rest equally Ianes having died before Robert her Heirs and Roberts Heirs compet for the sum for Robert died without Children and William as Heir to Robert claimed the whole sum upon this Ground that Ianet being substitute by the Father to Robert without any mention of Ianets heirs Ianet having died before Robert she had never right and her Substitution became absolutely void and her Heirs not being exprest this Substitution cannot extend to them because though ordinarly Heirs are comprehended though not exprest qui acquirit sibi acquirit suis yet here is no Acquisition but a voluntary Substitution whereby it may be rationally conjectured the mind of the Defunct was that he would prefer Ianet to Roberts Heirs of line not being Heirs of his Body but not that he would prefer Ianets Heirs which were a degree further from his own other Bairns And the case of Substitutions in the Roman Law was urged that if the Substitute died before the Institute the Substitutes Heirs have never place It was answered that Institutions and Substitutions with us do far differ from the Roman Substitutions whereby if the Institute succeed the Substitute has never place as Heir to the Institute but the Institutes Heirs whatsomever which failing the Institute is there interpret so that if the Institute never be Heir then the Substitute has place as Heir of Tailzie and provision to the Substitute so that here Ianets Heirs are Heirs to Robert who had no Heirs of his Body and do exclude William his Brother and though Ianets Heirs be not mentioned yet they are understood and comprehended because in Tailzies and Provisions there uses never to be an Institution or Substitution of a single person without the Heirs of their Body And though there be some singular Cases in which Heirs not being exprest are not comprehended this is none of them It was further alleadged for William that William and Ianet being Substitute joyntly Ianet deceasing before Robert her share accresces to him jure accrescendi ex conjuncta substitutione It was answered that there is here only substitutio conjuncta verbis but disjuncta rebus for the sum is declared to belong to William and Ianet equally so that each of them has but Right to a half The Lords preferred the Heirs of Ianet and found that they had Right as Heirs of Provision to Robert and that they ought to be served to him and not to Ianet who had never Right her self having died before she was or could be Heir to Robert Elizabeth and Anna Boids contra Iames Boid of Temple Ianuary 6. 1670. JAmes Boid of Temple in his
of the Price and bearing this provision that it sholud not be payable till the Earl obtained George Infeft by his Superior The Earl Assigns the Bond to Lady Lucy his Sister who having raised Inhibition upon the Bond against George Hay and having thereafter Charged him he Suspended alleadging that the Condition was not fulfilled he not being Infeft and the Lady offering a part of the Sum to purge that Condition pro damno interesse and to procure his Infeftment George accepted of the offer and thereupon the Letters were found orderly proceeded for 3000. Merks of the Sum and Suspended for the rest in place of the Condition upon this Decreet the Lady Apprizes the Lands of Mountcastle and now Insists in a Reduction of a Disposition of the same Lands granted to Dunlap and Pitcon for themselves and to the use and behove of the Disponers other Creditors underwritten viz. Where there was a blank of several Lines which is now filled up by another Hand and though this Disposition was anterior to the Inhibition and did prefer Dunlap and Titcon for any Sums due to themselves or for which they were Cautioners the time of the Disposition Yet the Lords found by a former Interlocutor that as to the other Creditors filled up in the blank it should be repute as posterior to the Inhibition and filled up after the same unless the Creditors prove by the Witnesses insert or other Witnesses above exception that they were filled up before the Executing of the Inhibition The Cause being called this day the Creditors repeated their former alleadgeance and offered to prove that their Debts were anterior to the Inhibition and also that at the Subscribing thereof it was communed and agreed that Dunlap and Pitcon should undertake the remainder Creditors Debts at least they promised to give Dispositions of parts of the Estate effeirand to their Debts and accordingly they had done the same after the Inhibition but being upon a promise before the Inhibition they were valide having causam anteriorem and they offered to prove the Communing and Promise by the Writter and Witnesses insert 2dly They offered to purge and satisfie the Pursuers Interest 3dly They alleadged that their Disposition from the common Author of the Property of the Lands in question did comprehend all Right the Disponer had and consequently the Condition and Provision in the Bond that before payment George Hay should be Infeft for the Disposition would no doubt carry any obligement for Infefting the common Author The Pursuer opponed the former Interlocutor and alleadged that she was not obliged to Assign her Right seing she had now Apprized and that her Apprizing was now expired and yet of consent she was content to Renunce her Right but would not Assign it to exclude other Creditors or to distresse the Cautioners and as for the Condition of the Bond the Defenders Disposition gave them no Right thereto because there was no obligement in the Bond to obtain the common Author Infeft but only a suspensive Condition that payment should not be made till he were procured to be Infeft for hat the provision to obtain the Infeftment being only an Condition and not an Disposition after the Disposition to the Defenders the Pursuer might have payed the Bond or transacted thereanent with George Hay and was not obliged to know the Defenders The Lords adhered to their former Interlocutor and found the offer not sufficient and that the Pursuer was not obliged to Assign her Right though she had offered of her own accord to Renunce it and found the Persons Intrusted their undertaking the Creditors Debts before the Inhibition Relevant only to be proven by Writ or by the Ladies Oath of Knowledge and would not make up such a material Clause by the Oaths of the Witnesses insert nor of the Persons Intrusted and if they had made any such promise it was their own fault that they caused not put it in Writ knowing that their Oaths albeit they might prove against them yet that they would not prove for them for the Lords thought that if such blanks and clandestine Promises were allowed they might disappoint the Diligences of all Creditors Thomas Kennedy contra Archibald Kennedy of Culzean Eodem die THe Laird of Culzean having three Sons Iohn Archibald and Alexander for a Provision to Archibald the second Dispones his Lands of Corrowa and others with this provision that if Iohn should die and Archibald Succeed to be Heir Archibald should denude himself of the Lands in favours of Alexander and if Archibald wanted Heirs of his Body Alexander should be his Heir notwithstanding of any Law or Custom to the contrare thereafter a few Moneths before the Fathers Death this fourth Son called Thomas was Born Iohn the eldest and Alexander the third are both dead Infants Archibald falls to be Heir and so the Condition exists in which he was obliged to Dispone to Alexander Thomas enters Heir of Line to Alexander and pursues Archibald to Dispone the Lands to him It was answered for Archibald that Thomas as Heir of Line to Alexander can have no Right to this Provision First Because the Provision is only in favours of Alexander without mention of his Heirs 2dly Though it could be extended to Alexanders Heirs yet it being no Heretage to which Alexander could Succeed it is Conquest and would not descend to Thomas Alexanders Heir of Line but would ascend to Archibald as Heir of Conquest to Alexander It was answered for the Pursuer that in this case theâ—meaning and intention of the Father must be considered by his Provision inter liberos which is clear to have been that Archibald should not both have his Estate and these Lands of Corrowa but that the same should descend to Alexander and if Thomas had been then Born he would no doubt have provided that failzying of Alexander Archibalds Portion should fall to Thomas and if he had declared that the Lands of Corrowa should only belong to the Heirs of Line it would undoubtedly have excluded the Heirs of Conquest He has done the equivalent for having provided the Lands to Archibald and his Heirs whatsomever he does by a posterior explicatory Clause declare that if Archibald died without Heirs of his Body Alexander should be Archibalds Heir therein notwithstanding of any Law or Custom to the contrare which can have no other meaning then that notwithstanding by the Law Iohn as Heir of Conquest would Succeed to Archibald wanting Heirs of his own yet Alexander the younger who would be Heir of Line should Suceeed which is as much as to say that this Provision should belong to Archibalds Heirs of Line and not to his Heirs of Conquest and consequently having made no mention of Alexanders Heirs he did also mean Alexanders Heirs of Line who is the Pursuer Thomas and the case is so much the more favourable that if this failed Thomas hath neither Provision nor Aliment The Lords considering that both Parties were
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
or Infeâ—tment of Land Iuly 7. 1664. Miln contra Hume of Eccles. THE ACT SALVO IVRE being excluded in a Ratification to a particular Party and that Exclusion not being repeated in the Act Salvo The Lords were unwilling to decide whether such Exclusion should be sufficient but ordained the Parties in the first place to Dispute their Rights without consideration of that Clause Febâ—uary 11. 1665. Earl of Lauderdaâ—l contra Viscount of Oxenfoord AN ADJUDGER ordained to be Received without instructing his Debitors Right who Renunced to be Heir Salvo jure superioris cujusâ—bet February 9. 1667. Ramsay contra Kâ—r ADâ—UDICATION being on a Disposition and obligement to Infeâ—t and not upon a liquid sum the Superiour was not found obliged to receive the Adjudger unless he instructed the Disponers Right Iune 24. 1663. Medowgal contra Laird of 〈◊〉 Adjudication being pursued by a Creditor on a personal Debt was not excluded by a Back-bond of the Defuncts Debitors bearing his Infeftment to be on Trust to the behove of a third Party whose Creditors compeared against the Adjudger yet was not put to Dispute his Debitors Right till aâ—ter the Adjudication he might use Exhibition of his Evidents but the Adjudication was granted with the burden of the Back-bond November 23. 1663. Livingstoun and Sornbeg contra Lord Forrester and Creditors of Grange Adjudication was Excluded as to the Property in favours of a Party shewing the Deâ—unct to be Denuded and himself Infeft but was Sustained to Adjudge any Right of Reversion Clause irritant or Provision in favours of the Defunct Debitor Iuâ—y 22. 1664. Inter â—osdem Adjudication was Sustained against a second appearand Heir upon a Decreet cognitionis causa upon the Renunciation of a former Heir without a new Charge against the Heir or his Renunciation The Defender declaring that the Lands should be Redeemable within ten years if the Pursuer Entered within these years Ianuary 17. 1666. Crawford contra Auchinleck Adjudication was found not to be stopped upon a better Right than the Deâ—uncts alleadged upon by a Party compearing but the Pursuer was suffered to Adjudge upon his periâ— November 15. 1666. Chein contra Christie ADMIRAL or the Iudge of the high Court of Admirality does Reduce the Decreets of inferiour Admirals or their Deputs February 24. 1668. Captain Mastertoun contra Strangers of Ostend The Lord Admiral being out of the Countrey found not necessary to be called in the Reduction of a Decreet of Admirality where the Iudge pronuncer of the Decreet was Called Inter â—osdem ADVOCAT was found obliged to Depone concerning the having of his Clients Writs February 1. 1666. contra Rallo An Advocat being in his Duty hindering a Suspension to pass being threatned by a Party who said he would make him repent what he had said if he were in another place and calling him Liar and Knave the Lords imprisoned the Party and Fined him in 500. merks Iuly 14. 1668. Mr. David Fâ—lcoâ—er contra Sir Iames Keith ADVLTERY was found not to infer Escheat unless the Adulterer were Convict Criminally or Denunced as Fugitive though he had confessed and stood in Sackcloath a year Ianâ—ary 9. 1662. Baird contra Baird ALIBI was found not receivable for proving a false datâ— to annul the whole Write where the Witnesses insert proved the 〈◊〉 of the Subscription though of aâ— Erroneous date February 23. 1667. Laird of May contra Ross. ALIMENT was found due by the Heir to his Brothers and Sisters their Mother being dead and they left without any Provision Ianuary 24. 1663. Children of Wedderly contra Laird of Wedderly Râ—o absente Aliment was found due by an Heir-male to Heirs of Line to whom he was obliged to pay such a sum when they were Mâ—rriageable without mention of Annualrent or Aliment here the Heir-male sâ—cceeded to a considerable Estate November 8. 1663. Lady Otter contra Laird of Otter Aliment was found due by an Heir-male to an Heir-â—emale of a second Marriage till her age of fourteen from which time her Portion bear Annualrent and beaâ— no mention of Aliment till then her Mother being dead and having no way to subsist without consuming the Stock of her Portion February 11. 1663. Frazer contra Frazer Aliment was found due by an Heir-male to Heirs of Line till their Marriage and not till the Term of payment of their Portions only seing the same bear no Annualrent râ—o absâ—â—te November 12. 1664. Daughters of Balmerino contra Lord Balmerino Aliment of a Child was found not due where the Child was freely intertained by the Mothers Father who demanded nothing during the time of the Intertainment and was holden as freely gâ—fâ—ed for all years before the pursuit Iuly 21. 1665. Laird of Ludquhairn contra Laird of Geight Vide Mother Aliment was found due upon a Bond of Provision granted by a Father to his Daughter obliging him to Intertain her till the Term of payment of her Portion which bear no Annualrent and that not only till the Term of payment but thereafter till her Marriage and even for years in which her Mothers Brother Alimented her Gratis after her Fathers Death but for no time of his Life seing she leâ—t her Fathers House upon pretence of her Step-mothers severity Ianuary 21. 16â—8 Steuart contra Laird of Rossesyth Alâ—ment of a Daughter by her Mother Married was â—ound due the Daughter being appearand Heir to her Father whose whole Lands the Mother Liferented though the Daughter Renunced to be Heir Iuly 16. 1667. Haâ—iltoun contra Symontoun Aliment was not found due to an appearand Heir who was Major and keeped a Brewary by a Liferenter whose Liferent was very mean and intertained one of his Children Ianuary 27. 1669. Stirling contra Heriot ANN was found to be the whole year wherein the Defunct dyed if he dyed before Michalmas and if he dyed after Michalmas and before Ianuary to be the whole year in which he dyed and the half of the next year but if he reached Ianuary dying in February he hath that whole year Iuly 5. 1662. Executors of Fairly contra his Parochioners Anâ— of a Minister having a Wife and no Bairns was found to divide equally betwixt his Wife and nearest of Kin Iune 24. 1663. and Iuly 19. 1664. Scrymzour contraâ— Executors of Murray Ann of a Minister dying after Michalmas and before Marâ—â—nmas was â—ound to extend to that years Stipend and the halâ— of the next Iuly 19. 1664. Inter â—osdem ANNEXED PROPERTY of the Crown was found not validly dissolved unless the dissolution had preceeded the Gift and Infeftment and had proceeded upon weighty Reasons by a special Act and not by a Clause iâ— a Ratification of the Gift February 25. 1669. Kings Advocat contra Earl of Mortoun and Viscount Grandiâ—ound absent ANNVITY of Teinds included being in question it was recommended to the Parties to settle but the Lords inclined to Liberat the Teinds Ianuary 10. 1662. Laird of Rentoun contra Ker. ANNVS DELIBERAND I was found to exclude
on the Bairns Portion though prior Iuly 22. 1668. Iohnstoun of Shems contra Arnot Vide Children Ianuary 16. 1676. Erskines contra Râ—ynolds A BOND bearing borrowed Money was found not Reduceable upon the Act against Bankrupts but that the Bond it self did sufficiently instruct the borrowing of the Money as the cause onerous Iune 28. 1665. Moâ—teith contra Aâ—derson A Bond was found Heretable as bearing annualrent though it was but 5. per cent in a Bairns Portion Iune 28. 1665. Pâ—tcairn contra Edgar Bonds bearing Annualrent are moveable till the first Term of payment of Annualrent and fall within single Escheat Iune 26. 1668. Dick contra Keir A Bond by a Father to a Son though bearing borrowed Money yet was presumed to be for love and favour and the same with an Appryzing thereupon was Reduced at the instance of anterior Creditors who obtained Decreets after the Bond for Bargains which were proven by Witnesses to have been contracted before the Bond Ianuary 21. 1669. Creditors of Pollock contra Pollock his Son A Bond by a Father to his Son after he was Married and out of his Family payable after the Fathers death was found not Reduceable at the instance of posterior Creditors of the Father by the Act of Parliament 1621. against fraudful Alienations though it were Reduceable upon evidence of Fraud ex jure communi which were appointed to be condescended upon Ibidem A Bond taken by a Father from a Son after Contract of Marriage Vide Contract BARONS Decreets are valide in Vaccance time by their priviledge without dispensation and they are competent to Iudge the Multures due by their Vassals February 14. 1662. Nicolson contra Forbes of Tillicutriâ— A BARONY was found to include a Burgh of Barony as Pâ—rt and Pertinent though not exprest in a donators Infefâ—ment albeit it was exprest in former Infeftments and particulars of less moment were exprest in this Infeftment as comprehended in the Barony Ianuary 15. 1668. Earl of Argile contra Campbel A BASE INFEFTMENT of Annualrent was sound valide against a posterior publick Infeftment because thereupon there was a Decreet of poinding the Ground though it could take no effect for a long time till the entry to the Annualrent which was not till after the Constituents death 26 and 27. of February 1662. Creditors of Kinglass competing A base Infeftment by a Husband to his Wife on her Contract was validate by and preferred upon the Husbands Possession though the Wiâ—es Infeftment was of annualrent and the Husbands of property November 23. 1664. Lady Grangâ— contra Murray where it was found that from the very date it was validate and preferred to any other though prior and base but apprehending Possession upon a Citation before Candlemas it being Ferm Land and a Decreet thereon in March thereafter Two base Infestments of annualrent competing one to a Wiâ—e the other to a Creditor the Wife was preferred being cled with Possession by the Husbands possession which was not found competent to the Creditor though his Infeftment was prior and though he used Inhibition before the next Term after the Wifes Infeftment and alleadged the Husband could have no Possession after the Wifes Infeftment before his diligence which the Lords Repelled because the Husband was in a present current Possession and nor in acquirenda possessione but the Wifes Infeftment was only sustained in prejudice of this Creditor in so far as it had an anterior Cause to his debt The Husbands Possession was also found sufficient to validate the Wifes Infeftment of annualrent though he possessed the property which includes eminenter all other Rights November 23. 1664. inter cosdem An Infeftment of Warrandice Lands being in the same Infeftment with the principal Lands and both holden base was preferred to a posterior publick Infeftment of the same warrandice Lands though cled with long Possession and that upon an action of Mails and Duties upon the Distresse without Reduction Ianuary 9. 1666. Brown contra Scot. A base Infeftment by a Father to a Son reserving the Fathers Liferent was found not validate by the Fathers continuing his Possession but the Fathers Creditors appryzing were preferred to the Donator of the Sons Forefaulture founding upon the Sons Infeftment Iune 14. 1666. Hume contra Hume A base Infeftment of annualrent was preferred to a posterior appryzing and charge before the Term at which the annualrent begane to be payable in respect the annualrenter was in Possession of the Land out of which the annualrent was payable intus habuit viz. his annualrent proportionally from the date of his Right Iune 30. 1666. Stevinson contra Dobbie A base Infeftment by a Father to a Son Reserving the Fathers Liferent was found not validate by the Fathers possession albeit the Father disponed the Lands reserved to a third Party who did possess but the Disposition was of the Fee and no mention of the Liferent reserved December 18. 1666. Lord Newbeath contra Dumbar of Burgy A base Infeftment was excluded by the Liferent Escheat of the granter albeit the base Infeftment was before the Rebellion seing it was not cled with Possession in cursu rebellionis within year and day February 21. 1667. Miln contra Clerkinson A base Infeftment by a man to his Wife was preferred to a posterior publick Infeftment albeit the base Infeftment was not cled with Possession of the Husband himself but by others deriving Right of Wodset or other Temporary Right from the Husband or his authors which was compted as the Husbands Possession to validate the Wifes base Infeftment Iuly 18. 1667. Lady Burgy contra Strachen A base Infeftment of annualrent was found to be validate by receipt of a part though far within a Terms annualrent and not relative to the Infeftment but to the Bond whereupon it followed and though there was no annâ—alrent due before the Infeftment yet seing the Receipt bear in part of payment of bygone annualrents the Annualrenter was allowed to ascribe it to the annualrents due after the Infeftment to exclude an Infeftment on an Appryzing which appryzing was led before the Receipt but the Infeftment thereupon was after and the Receipt was proven by an Apocha under the Debitors hand Iuly 23. 1667. Hume contra Hume and the Tennents of Kello A base Infeftment of annualrent on a Bond bearing 3000. merks of borrowed Money and 3000. merks of Portion the one half of the whole Sum and annualâ—ents thereof was Suspended till the Fathers death Yet payment of the annualrent of the other half not suspended was found sufficient to validate the whole Infeftment and to prefer it to a posterior publick Infeftment February 5. 1668. Keir contra Keir A base Infeftment in warrandice granted by a Husband to his Wife holden of himself ex intervallo after the principal Infeftment was found valide against a posterior publick Infeâ—tment of the â—ame warrandice Lands as being cled with the Husbands Possession in the principal Lands and that these needed no
Breives to serve Heir wherein no Service followed or by Revocking deeds done by the Defunct in his Minority Iune 28. 1670. Eleis of Southside contra Casse Behaving as Heir was not inferred by the appearand Heirs having right or tollerance from Appâ—yzers and intrometting thereby even within the Legal but was inferred by continuing the Defuncts Possession before obtaining such Warrand and that any Creditor though not Appryzer pursuing the appearand Heir behaving as Heir and he Defending upon the Right of an Appryzing that the Creditor might Summarly by Reply prove satisfaction of what he truly payed out by intromission or present payment and thereupon he was obliged to Assign or Dispone to the Creditor Iuly 11. 1671. Maxwel contra Maxwel Behaving as Heir was not inferred simply where the Defender was Infeft as Heir to her Mother her Father and Mother being Infeft in Conjunct see upon their Contract of Marriage by which there was probable ground to think that her Mother was Feear and not her Father Iuly 12. 1671. Gairns contra Sandilands BILLS OF EXCHANGE being accepted and before the Term of payment the Accepter dying no Exchange or Re-exchange was found due but the obtainer of the Bill might either return upon the drawer for single value or proceed against the Successors of the Accepter This Bill was protested for not payment at the dwelling House of the Defunct Iuly 3. 1664. Kennedy contra Hutcheson A BLANK Bond as to the Creditors Name was found to constitute the Receiver thereof to his own behove Creditor and that it would be affected with his Debâ—s and Deeds and fall under his Eâ—cheat as if his Name had been filled up before and before any other Name was filled up shown or intimat an Arrester being Creditor to the person who got the Bond is preferable to him whose Name is filled up therein November 11. 1665. Telzifer contra Geddies debated again and so decided December 1. 1665. A blank Bond being filled up by him who râ—â—eived it in Name of another and delivered to that other and by him shown to the Debitor these particulars being proven by Witnesses ex officio the â—â—â—ty whose Name was filled up was preferred to a Creditor of him to whom the Bond was first delivered blank arresting all Sums due to him in the Debitors hands but after filling up and shewing of the Bond to the Debitor without necessity of an intimation by Instrument Ianuary 18. 166â— Birnie contra Heâ—drieson and George Vide Compensation inter â—osdem A blank in a Disposition whereby Lands are Disponed to two for themselves and the Creditors of the Disponer afterspecified after which several â—ines were written with another hand inserting the particular Creditors and Sums without mention of the Writer of that part of the Writ whereupon it was presumed that that blank was filled up after the date of the Writ and after another Creditors Inhibition unless the contrary were proven not by the Trusties oath but by the Witnesses insert or other Witnesses above Exception Ianuary 16. 1670. Lady Lucia Hamiltoun contra the Creditors of Monkcastle BLOODWITS were found due to a Superior Infeft cum Bloodwitis albeit not a Baron holding immediatly of the King December 12. 1665. Cranstoun contra Pringle BONAE FIDEI POSSESOR â—acit fructus consumptos suos though he have not possessed so long as to obtain a possessory â—udgement November 18. 1664. Guthrie contra Laird of Sornbeg and though the other Parties Infeftment was Registrate Bonae â—idei possesior c. was found Relevant to defend a Party possessing by a Contract with a minor though Reduced upon minority as to the years uplifted before the Reduction February 16. 1666. Earl of Wintoun contra the Countes of Wintoun Bonae â—idei possessor was found Liberat from the Mails of a Booth whereof he had Tack till a Sum were payed albeit the Setter was but Liâ—erenter and had purchased the Tenement to himself in Liferent and to his Son in Fee but the Father was commonly repute Feear and did not set the Tack as Liferenter yet the same was excluded from the duties before Citation and was not found to have Right from a Warning he had made after his Fathers death by chalking of the door without any other intimation February 16. 1669. Hamiltoun contra Harper Bonaâ— fides of Creditors lending their Money and seing a Wifes Contract Registrate bearing such a sum to be imployed was found not to defend them against the Wife who obtained a Declarator of Vitiation of the principal Contract by her Husband and Fathers diminishing the â—ocher and Ioynture to be extended and amended as it was at first Iune 11. 1670. Hunter contra the Creditors of Peter Bonaâ— fidei possessor c. was found of no effect to one who obtained Decreet of Removing for not payment of the Duties in absence and produced not his Infeftment but an Infeftment of another person of the same Name which being a â—raudulent deed he could not thereby have a Title bonae fidei Iuly 21. 1671. Neilson contra Mâ—nzies of Enoch BVRGHS were found to have no power to stent any part of the Charges of their Commissioners sent to the Convention of Burrows upon these who had no Trade in their Town but only Tenements or for any part of a second Ministers Stipend unless it had been due by Law Sentence consent of party or prescription February 1. 1669. Boswel contra the Town of Kirkaldie The priviledge of Burghs by the Act of Parliament that no Trads-men should exercise their Trade in Suburbs was found only to extend to such Suburbs as had no priviledge but if the Suburbs were erected in a Burgh of Regality or Barony or were within a Barony the Inhabitants might freely use these Trades albeit some of them had given Bond to pay such a Duty for the Liberty thereof The same could only bind themselves and not their neighbours or the Heritors Ground with a Servitude without his consent Iuly 21. 1669. Town of Pearth contra the Weaveâ—s in the Bridgeâ— end of Pearth A BVRGH ROYAL having obtained Decreet against certain persons in a Burgh of Borony to desist from Merchant Trade and impowering the Burgh to sease on the Merchandise and the persons of the contraveeners was found not to militate against others than those individual persons and not against the Lord or Baillies of the Barony and that there was no waâ—rand in Law to inâ—arcerate persons hoc ordine February 13. 1663. Town of Linlithgow contra unfree-men of Borrowstounnâ—sâ— A Burgh Royal pursuing a Burgh of Barony for desisting from Merchant Trade The Lords â—ound the Letters orderly proceeded till the Burgh of Bâ—rony should find Caution to desist from Merchant Trade in general but would not suffer to condescend upon particulars as to the retailing of Wine c. which had been forborn by the Lords these 30 or 40. years Iune 24. 1664. Town of Cowper contra Town of Kâ—oucher A Burgh-Royal having immemorâ—al
Wat contra Russel Fraud in a debitors granting a Bond to his Brother and taking a discharge of the same daâ—e and Witnesses and thereby proponing a defense against an Assigney was found Relevant and receivable by way of Exception unless the Debitor could condescend upon a reasonable cause for which the Bond and Discharge were so granted that it might not inâ—eâ— their design to deceive any that should contract with the Receiver of the Bond December 4. 1665. Thomson contra Hendrisoâ— Fraudulent dispositions may be either Reduced by the Act of Parliament 1621. or declared to be affected with all Execution as if they were in the disponers person December 15. 1665. Eleâ—s contra Keith Vide Ianuary 8. 1669. Captain Newman contra Fraud was inferred by a Fathers granting a Bond to his Son who was Forisfamiliat without a cause onerâ—us albeit the Bond bear borrowed Money yet formerly it was found to be gratuitous and it bearing no Annualrent and only payable after the Fathers death the Father after the date of the Bond continuing in a considerable Trade and his Estate being insufficient to pay his debt the foresaid Bond and Adjudication thereon was Reduced at the instance of posterior Creditors as being a fraudulent conveyance betwixt the Father and Son to insnare Creditors and very hurtful to commerce February 12. 1669. Pot contra Pollock The same February 16. 1669. French contra Watson Fraud of Creditors was found valide to Reduce a Disposition of Moveables being omnium â—â—norum and that the Narrative bearing special onerous causes was not sufficient though the parties were not conjunct but that it behoved to be astructed otherwayes then by the acquirers Oath November 18. 1669. Hendrison contra Anderson Fraud of Creditors was inferred by the Act of Parliament 1691. against an only Son and appearand Heir provided to a great sum of Money by his Contract of Marriage so far as to make a part thereof forthcoming for satisfaction of an anterior creditor albeit the Father was not Insolvent or made Insolvent by the Contract and albeit the Contract bear no Assignment to an Heretable sum but actual payment of Money February 8. 1671. Wat contra Campbel of Kilpont Fraud was not inferred by the latency of a Translation to a Tack by a Husband to his Wife granted for quiting of her Liferent of Lands to his Creditors and therefore was preferred to an Acquirer thereafter upon an onerous cause February 7. 1670. Dam Elizabeth Burnet contra Sir Alexander Frazer A FRAVGHT was found only proportionably due to a Skipper where the Ship was not fully loaden unless he proved by Witnessâ—s that he intimate his going to Sea and required more loading and abode his â—y dayes without necessity to alleadge an Instrument and Protest taken thereon mentioning he was not fully fraughted and craving more Fraught Ianuary 13. 1665. contra Charters FRVITS Vide Cropt Gordoun contr Mâ—â—â—lloch GENERAL LETTERS upon Presentation or Collation of Ministers whether having benefices or modified Stipends are prohibite by Act of Sederunt and the same intimate to the Writers and Keepers of the Signet and Clerk to the Bills but that every Incumbent must have a Decreet conform although he produce his Predecessors Decrect conform Iune 3. 1665. A GIFT granted by the King Erecting Kirk-lands in a Temporal Lordship was found not to be habilâ—â— modus while the same was not vacant but in the hands of the Commendator albeit he was dishabilitat from brooking 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 wayes accessory to his Fathers Crime whereupon his Temporal Provision was validate and the Erection medio tempore was postponed to a posterior Erection to the Commendatar himself upon his own dimission February 24. 1666. Sinclar contra Laird of Wâ—dderburn Gifts of Eâ—cheat competing the Gift last past in Exchequer but first past the Seals was preferred to the other though the other took Instruments against the Keeper of the Seal for delaying him seing the Instrument was after the other Gift was past December 6. 1662. Steuart contra Nasmith A Gift of a Ward being to the behove of the Superiors Heir and made 〈◊〉 of against the Vassals who had the Rights with absolute Warrandice the Gift was â—ound to accreâ—ce to the Vassals they paying a proportional part of the Composition February 15. 1665. Boyd of Pâ—nkâ—ll contra Tennents of Carsâ—lâ—ugh A Gift was found to be affected with a Back-bond granted by the Donator when the Gift past the Exchequer and was Registrate in the Books of Exchequer albeit the Back-bond was not conceived in favours of the Theâ—aurer but of a private person and albeit the Gift was assigned when it was incompleat before it past in Exchequer and the Assignation was intimat Ianuary 31. 1666. Dallace contra Frazer of Streiâ—haâ— Gifts of Escheat bearing all Goods to be acquired was â—ound to extend to Goods acquired within a year after the Gift only and not within a year after the Horning Iuly 2. 1669. Barclay contra Barclay HEIRS â—ound to have the benefite of an obligement to re-dispone Lands albeit Heirs were not expressed but appeared to be omitted by negligence seing the clause bear not that they should beâ—redeemable any time in the Disponers Life Ianuary 9. 1662. Earl of Murray contra Laird of Gairn Heirs were â—ound to have right to an Annualrent though Heirs were not exprest and though it bear only to be payed yearly to the Annualrenter and not Heretably or perpetually February 2. 1667. Pourie contra Dykes An Heir viz. a Son being inâ—eâ—t as Heir to his Mother dying without Issue his Brother Vâ—erine by that Mother not found Heir to him therein but his Father February 5. 1663. Lennox contra Lintoun An Heir found conveenable for the avail of her Marriage without calling the otherâ—Heir portioner who was dead Iune 26. 1666. Arbuthneâ— contra Keith HEIRS OF LINE and not of Conquest â—ound to have right to a Tack albeit Conquest Iune 23. 1663. Ferguson contra Ferguson An Heir of Line of a youngest Brother by a several Marriage found to be the immediate elder Brother of the former Marriage and not the eldest Brother Iune 20. 1664. Lady Clerkingtoun contra Steuart AN HEIR MALE was found to be presently lyable without discussing the Heir of Line where he was obliged to relieve the same November 22. 1665. Scot contra Bothwel of Aâ—â—hinleck AN HEIR SVBSTITVTE in a Bond was found not to make the Substitute Heir lyable in solidum but quo 〈◊〉 valorem of the sum this was a mutual Substitution of a sum payable to two Brothers or the surviver Iuly 3. 1666. Fleming contra Fleming Heirs have right in a Substitution though only a person by Name was Substitute without mention of Heirs and though that persoâ— died before the Institute Ianuary 5. 1670. Innes contra Innes AN HEIR APPARENT was allowed to have Aliment from the
Liferenter seing the whole Estate was either affected with the Liferent or the remainder thereof was appryzed from the appeared Heir for the Defuncts debts exceeding the value thereof February 13. 1662. Brown contra Liferenters of Rossie An Heir apparent was allowed to have Aliment of his Grand-Father though he had voluntarly infeâ—t his Son the Pursuers Father and though the Pursuer had a stock of Money Liferented by his Mother here the Grand-Father was Iately fallen to a plenteous Estate Iune 17. 1662. Ruthven Feâ—ar of Gairn contra Laird of Gairn An Heir apparent taking Right to Land from his Grand-Father was found not to enjoy the priviledge of a singular Successor and to be in no better case as to that Right than his Grand-Father albeit his Grand-Father was living and the Oye then not immediate Successor Iuly 23. 1662 Lord Frazer contra Laird of Phillorth An Heir Apparent was found to have Right to the Rents of â—is predecessors Lands although he dyed before he was Infeft and that the next Heir intrometting with the Reâ—â—s of the years that the former appearand Heir lived was lyable to pay the said appearand Heirs Aliment in so far as he Intrometted December 20. 1662. Lady Tarsappie contra Laird of Tarsappie An Heir apparent pursuing for Inspection ad deliberandum was found not to have interest to cause a party compt and run Probation that he might know the condition of the Herâ—tage though there was a contrary Decision observed by Dury March 16. 1637. Hume contra Hume of Blacketer seing the ordinary course since hath been contrary Iune 22. 1671. Lâ—sâ—ies contra Iaâ—â—ray HEIRS IN A TACK found not to require service but that such as might be served Heirs might enjoy the benefite thereof Iune 17. 1671. Boyd contra Sinclar HEIRSHIP MOVEABLES was found competent to one who was infeft in Lands and though the same was appryzed and the Appryzer infeft yet the legal was unexpyred and the appryzing stood but as a collateral Security not as a full Right February 26. 1663. Cuthbert of Draikies contra Monroâ— of Foulâ—s Heirship moveable was found to belong to an Heir of person who dyed only infeft in an Annualrent Iuly 19. 1664. Scrymzeour contra Executors of Murray Heirship moveable was not found competent to a person who was only Heir apparent of Tailzie and dyed never Infeâ—t Ianuary 27. 1666. Collonel Montgomerie contra Steuart Heirship moveable being renunced from the Heir of Line in favours of his Father was found not to return to him after his Fathers death but to belong to his Fathers Executors 〈◊〉 18. 1666. Pollock contra Rutherfoord Heirs 〈◊〉 clause AN HERETABLE Obligement quoad creditorem may be moveable quoad debitorem Iuly 25. 1662. Nasmith contra Iaâ—â—ray An Heretable Sum was found so to remain notwithstanding of a Requisition not being made conform to the clause of Requisition and so null as being provided to be required by the Husband with consent of the Wife whose consent was not adhibite nor was the showing the Creditors intention to require his Money enough not being made debiro modo Ianuary 18. 166â— Steuart contra Steuarts An Heretable Bond was found moveable by a charge thogh but against one of the Caâ—tioners Ianuary 24. 1666. Montgomery and his Spouse contra Steuart An Heretable Bond bearing a clause of Annualrent was found not to be moveable though the principal sum was not payable till the debitors death seing the first Term of payment of the Annualrent was past Iuly 31. 1666. Gordoun contra Keith Vide Bond Iune 28. 1665. and Iunâ— 26. 1668. ONE HOLDEN AS CONFEST was reponed against a Decreet of an inferiour Iudge albeit a Procurator compeared and took a day to produce him but without a Procuratory or proponing any Defense that might show any Information of the cause and so no warrand to compear November 24. 1665. Chalmers contra Lady Tinnel Holden as confest was not admitted against a Defender absent where the Messengers Execution did not bear personally apprehended but that the Messenger knew that the Defender was in his House but was forcibly keeped from access by his Wife Iuly 5. 1670. Lindsay and Swintoun contra Inglis AN HOLOGRAPH Discharge was found not to prove its date against an Assigney unless it were astructed by Adminicles or Witnesses that knew it subscribed of that date Ianuary 4. 1662. Dickie contra Montgomery A Holograph Writ proves not quo ad datam yet the date may be astructed by Witnesses above exception but persons of ordinary credite one of two being a Towns Officer were not found such Witnesses albeit no exception was competent against them for being ordinary Witnesses Iune 21. 1665. Bradie contra the Laird of Fairny Holograph was found proven by production of a Transumpt done judicially and the Oaths of the Witnesses and Friends of the Defunct who made the Wriâ— Transumed amongst his Children altering their portions and though a part of it was written by another when the Defunct was so weak that he could not write yet the writ was found holograph as to the rest but not as to this Article albeit the principal writ was lost and not produced but only the judicial Transumpt taken off when it was produced Iuly 30. 1668. Mckenzie contra Ballaâ—dine of Newhall Vide Death-bed November 14. 1668. Calderwood contra Schaw HOMOLOGATION to communicate Appryzings was found not to be inferred by the singular Successors concurring de facto against third parties unless it were proven by the singular Successors Oath that he knew of such a Bond Iuly 6. 1661. Tailzifer contra Maxtoun and Cunninghamâ— Homologation of a Decreet was not inferred by payment thereof without a Charge seing the Givers thereof were Officers having no Commission or any civil Authority Iuly 24. 1661. Iack contra Feddes Homologation of a Decreet Arbitral quoad one of many Articles of different matters was found not sufficient for the whole November 22. 1662. Pringle contra Din. Homologation of a Fathers Legacy to his Children was inferred by his Wife Confirming the Testament without Protestation not to prove that Legacy here the Wife by her Contract was provided to the Liferent of all her Husbands Moveables February 19. 1663. More contra Stirling Homologation of an Infeftment granted to a Wife in satisfaction of her Contract of Marriage was inferred by her continuing six or seven years to possess and setting several Tacks as Liferentrix where the clause in the Contract was only in general to imploy Money on Land or Annualrent and no Infeftment followed thereon nor was the Husband in possession in his Life but the Wise began the Possession albeit the acceptance of the Infeftment was to her prejudice and was not in her hand nor did the Seasine repeat that provision particularly But only according to the conditions contained in the Bond the Seasine being Registrate and the Bond still in the Nottars hand Who took the Seasine in which case the Wife was presumed to know and not
Children and Creditors of Bryson OATH IN LITE â— was admitted for proving of Ware in a Pack given in custody where the keeper opened the same though he made Inventary before Witnesses by a Baillies Warrant Ianuary 3. 1667. Packman contra Bran. OATH QVALIFIED was not sustained importing a compensation yet the â—ame was admitted to be proven as an Exception at advising of the cause December 9. 1664. Lermont contra Râ—ssel AN OBLIGATION by three persons to cause a Minor releave a sum not bearing conjunctly and severally was found not to oblige every one in solidum as being for an indivisible Fact but resulting in a divisible sum Iuly 16. 1669. Dennistoun contra Semple of Fulwood OFFER of the remander of a Sum not being special and not being Consigned was found not to purge a Failzie December 19. 1661. Deuar contra Countess of Murray Offer conditional to pay a suâ— for a Mother on condition it were at such a time and place and were made known whether or not it were accepted was found not obligatory after the Mothers death unless the condition had been fulfilled then 〈◊〉 Iune 24. 1664. Allan contra Colner Offer of Caution to a Wodsetter that he ought to quite possession or restrict to the Annualrent was sustained though made at the parties dwelling House when he was out of the Countrey seing the Act of Parliament did not require that offer to be by Instrument and though the instrument of offer did not bear a Procuratory to him that made the offer the said procuratory being now produced Iune 16. 1671. Lord Loviâ— contra Lord Mcdonald THE OFFICE of a Commissar Clerk was found noâ— to be annulled by his absence for a time out of the Countrey and being denunced sine crimine February 6. 1666 Archbishop of Glasgow contra Logan An Office of a common Servant viz. a Town Clerk being given ad vitam was found to imply a tacite condition to be also ad culpam and that such a fault did resolve the same as was of knowledge and consequence February 14. 1665. Town of Edinburgh contra Thomson OVERSEâ—RS were found lyable for nothing if they intrometted not Ianuary 10. 1665. Swintoun contra Norman PART AND PERTINENT of Lands disponed by a Minute was found to extend to a common Paâ—â—urage in a Muire possessed as pertinent of the Land in the Bargain and that the Writes upon the extension of the Minute ought to bear the â—ame expresly February 14 1668. Borthwick contra Lord Borthwick Part and pertinent cum pascuis pasturn in a Charter given by the King to the Feuars of his Property was found to carry common pasturage in the Muire of the Barony which being now possessed 40. years by the Feuars of the Barony is presumed to have been so at the time of the Charter being past memory and that interruptions of any other Right exclusive of this common pasturage was sufficient to preserve the same February 15 166â— Laird of Haining contra Towâ— of Selkirk â—art and pertinent was not excluded albeit an alleadgeance was proponed on an old Seâ—sine of the Lands in question as being separatum tenementum the Seasine being â—ound null and no Title for Prescription February 15. 1671. Earl of Argile contra Laird of Mcnauchtoun ALL PARTIES HAVING INTEREST not necessary to be cited at the Mâ—râ—at Cross in the Declarator of the Expyring of a Feu ob non solutum 〈◊〉 though the Summons bear warrand for the citation December 1. 1664. Eaâ—l of Sâ—therland contra Gordoun PARIOIDE doth not infer Treason as against the Act of Parliament against murder under Trust which is meaned by paction in reâ—pect of the special Act of Parliament against Paricide which doth not exclude the Paricides Collaterals but him and his descendents from the succession of the slain which therefore cannot belong to the Fisk Ianuary 22. 1663. Zeaman contra Oliphant PASSING FROM A REASON of Suspension pro loco tempore was found not to hinder the proponing of the same against that Decreet and against an Appryzing thereon the matter being yet illiquid and a singular Successor in the Appryzing Iune 17. 1664. Laird of Tulliâ—llan contra 〈◊〉 and Braâ—foord Passing from a Reason of Compensation and taking up a Writ for instructing thereof was admitted before Extracting of a Decreet though the Writ was long in the Chargers hand not being judicially given up to him and that another emergent exception might now be admitted Iuly 14. 1664. Lord Balmerino contra the Creditors of Dick. PAYMENT made before the hand was found Relevant against a singular Successor the Kings Donaâ—ar of Forefaâ—lture because it was but of one Term and so accustomed by the Baroâ—y to pay at the Entry and be free at the â—sh Ianuary 7. 1662. Earl of Laudâ—â—dail contra Tennents of Swintoun Payment made bâ—na fide to Baiâ—ns of a Sum by a Disponer in â—avours of these Bairns was sustained though after Reduction raised unless a Reason had been Libelled against that which was ordained to be payed to Bairns and shown before payment Iuly 14. 1662. Mâ—ntgomerie of Mackâ—ichill contra Wallace Payment made bona fide to a Procurator was thought to be Relevant though the Procuratory should be improven if therein there did appear no ground suspition to have put the Debitor in maâ—â— fide February 1. 166â— Elphingstoun of Selms contra Lord Rollo and Laird of Niddrie Payment made by Heretors to Ministers of their Stipends during the time they Preached and before any Process against them was found to liberate the Heretors notwithstanding they were outed by the Act of Parliament anent these Ministeâ—s who entered since the year 1649 and had not gotten Presentation and Collation whereunto the Heretors â—eâ—e not obliged tâ— inquire seing the Ministers were suffered to Preach without challenge February 10. 1666. Collector of the vacant Stipends contra the Heretors of Mayâ—ole and Giâ—van Payment made bâ—na fide was found not to extend to payment made by a Tennent before the time nor to a Sub-Tenent to the Tennent before the Term February 5. 1667. Lady Traquair contra Howaâ—son Payment made of a Decreet by giving Bond of borrowed money and taking Discharges of the Decreet was found no Homologaâ—ion or Transaction but that after the party might quarrel both Decreet and Bond in consequence unless abatement were gotten upon Transaction of the Sum in the Decreet seing it was not voluntarly done but upon Caption Iâ—ly 3. 1668. Rew contra Houstoun Payment of the Rent of a Shop was sustained being a Taâ—k set by a Father to a Tennent for the annualrent of a sum though the Father had given a Right to his Son reserving his own Liferent seing he set the Tack as Feear and though the Son after his death warned only by Chalking the Door without any other intimation the Tacks-man was Liberate of the Rent for his Annualrent as bonae fidei possessor by his Tack till he was cited on the Sons Right February 16. 1669.
Redeemed all pestelor Compryzings December 5. 1665. Reg contra â—eg A Wodset containing a Clause of Reversion for granting a Tack for certain years after the Redemption was found not to be derogat from by the Act betwixt Debitor and Creditor but that it might be quarrelable by the Act 19. Parliament 1449. If the Tack were set but about the half of the true Rent as it was worth the time of granting the Wodsâ—t and so being Vsuâ—ary â— February 15. 1666. Lord Lâ—y contra Porteoâ—s Wodsetters having Wodset before the Act of Parliament 1661. were found comptable for the superâ—lus more than pays their Annualrent not from the date of the Act betwixt Debitor and Creditor but from the oâ—â—er made to give them security upon quiting their Wodsets and that notwithstanding there was in the Wodset a Clause Renuncing the Vsurpets Act suspending the payment of principal sums and ordaining Lands to be taken in satisfaction thereof and all Acts of that nature and albeit there be an exception in the said Act when the benefite of such Acts are Renunced which was not found to relate to the Clause anent Wodsets which is posterior to that exception February 21. 1666. Lord Borthwick contra his Wodseâ—ters Wodsetters before the Act 1661. choosing to retain the possession were found comptable for the superplus not from the Summons but from the date of the offer to find Caution which was admitted after the Citation but it was found that the Wodsetters were not bound to declare their option whether to quite the Wodset or restrict till Caution were offered February 12. 1666. Ogilbie contra A Wodsetter by his Wodset being obliged upon payment to Renunce and by his missive Letter acknowledging payment his Son and apparent Heir having received a disposition of his other Estate without a Cause onâ—rous after the Wodset but before the missive Letter was found lyable as lâ—crative Successor to enter to the Wodset Right and to Renunce Ianuary 15. 1668. Earl of Kinghorn contra Laird of Vdnâ—y A Wodsetter was found comptable for the superplus after oâ—â—er to find Caution though he had a posterior Ratification and â—ik after the Act 1661. Iune 19. 1669. Scot contra Langton A WRIT â—iz a Bill of Exchange by a Drover subâ—cribed only by a mark and another hand writing such a mans mark The Lords did not allow it as probative but before answer ordained the writer and witnesses to be examined ex officio February 26. 1662. Brown contra Iohnstoun of Clacharie A Writ was sustained though subscribed but by one Nottar being a Contract of Marrâ—age whereon Marriage followed Iuly 19. 1662. Breadiâ— contra Breadie and Murie A writ was found not to prove being the Act of a Town Council without Citation or Subscription of the party bearing consent to a penalty imposed upon unfree-men February 13. 1663. Town of Linliâ—hgâ—w contra unfree-men of Borrowstownness A writ was sustained though not delivered being in â—avours of the granters Son though a Bastard February 25. 1663. Aikâ—nhead contra Aikâ—nhead A writ wanting wâ—tnesses designed was not sustained simply on designation being a very old writ without other adminicâ—es to astruct seing the improbation by such witnesses being dead was not competent as in recenti Iuly 15. 1664. Colvil contra Executors of the Lord Colvil A writ viz. a Bond was found not taken away by witnesses offering to prove payment though the Bond was made in England to English-men where that probation is competent being made by Scots-men residing in Scotland and registrate here and so to be regulat by the Law of Scotland December 8. 1664. Scot contra Anderson and Neilson A writ was not found null as wanting Writer and Witnesses insert being made secundum consuetudinem locâ— in Ireland Feâ—uary 1. 1665. Elphing stoun of Sâ—lmes contra Lord Rollo A writ quarreâ—â—ed as null the witnesses not being designed was not sustained unless living witnesses were condescended on or adminicles to astruct the verity of the debt February 3. 1665. Falcoâ—er contra Earl of Kingâ—orn A writ alleadged null because the writer was not designed was sustained upon designing the â—riter albeit the writ was old and appeared to have been blank in the sum Creditor and Debitor Decem. 5. 1665. Cunninghame contra Duke of Hamiltoun A writ viz. a Bond was taken away by this manner of probation by oath that it was for a Prentice-see and by witnesses that the Prentice was put away within a year and an half after the entry as to a proportional part of the Prentice-see to the time thereafter Iune 15. 1665. Aikman contra A writ being no compt Book but some louse Scheduls was found not probable to instruct a debt against the writer of it who deponed that he wrot the same but declared also that he had payed the sum Iuly 1. 1665. Nasmith contra Bower A writ wanting witnesses being offered to be proven holograph albeit it cannot instruct its own date or that it was subscribed before the Defunct was on death-bed yet the alleadgance on death-bed was not sustained by way of exception or duply Ianuary 11. 1666. Seaâ—on and the Laird of Touch contra Dundaâ— A writ being an assignation to an appryzing was taken away partly by the assigneys oath and partly by witnesses ex officio proving that the appryzing with the assignation blank in the assigneys name was retired and lying by the assigneys father who was debitor in the sums and amongst his writs the time of his death February 27. 166â— Creditors of the Lord Gray contra Lord Gray A writ was not sustained as having but one witneâ—s to that subscription though another witness generally designed deponed he saw not that party subscribâ— but that the subscription was his hand-writ to the best of his knowledge and several other subscriptions were adduced to asâ—ruct the same comparatione lâ—terarum seing there were not two witnesses insert to this subscription Ianuary 4. 1667 Dow of Arâ—ho contra Caâ—pbel of Calder A writ being a discharge by a Master to his Tennents was sustained though without witnesses and not holograph and without necessity to prove the truth of the Subscription in respect of the common custom to take such discharges Iuly 4. 1667. Sâ—haw contra Tennents A writ being a bond was found not probative having only the clause of Registration and Subscription on the one side and all the rest on the other side with another hand unless it were astructed with other evidences and adminicles Iuly 16. 1667. Hamilâ—oun contra Symontoun A writ subscribed by Nottars was sound null because the Nottars subscription said that he subscribed for the party but bear not at his command which was not allowed to be astructed by the witnesses insert Iuly 26. 1667. Philip contra Cheap A writ being a Bond subscribed with initial Letters was sustained it being found proven the debitor was accustomed so to subscribe and there being three Witnesses and the Writer examined whether de facto he subscribed the
understood presumptive nisi contrarium probatur as also they found the Defender his taking right to the Appryzing while being Tutor or continuing in Possession after satisfaction thereof by Intromission not to infer the passive Title and that the Gift and Declarator did take away the Heirship moveable unless it were offered to be proven simul or retenta possessione during the Rebels lifetime Lady Milntoun contra Laird of Milntoun February 27. 1663. THe Lady Milntoun pursues the probation of a Tenor of a Bond granted by Maxwel of Calderwood her Husband bearing that in respect of his Facility he might be induced to dispose of his Wifes Liferent and thereby redact them both to want and misery therefore he oblieges himself not to dispose thereof without his Wifes consent seing he had no means but what he got by her hereupon she used Inhibition which she now produces as an Adminicle and craves the Tenor of the Bond to be made up by Witnesses The Defender having alleadged that there behoved here to be lybelled and proven a special causus omissionis because albeit it were proven that such a Bond once was yet unless it were also proven how it was lost it must be presumed to have been given back to the Husband granter thereof whereby he is liberat and this is the course observed in the Tenors of all Bonds of borrowed Money The Pursuer answered that this was not like a Bond of borrowed Money the intent whereof is not to stand as a constant Right but to be a mean to get payment but this Bond by its tenor was to stand as a constant Right to preserve the Dilapidation of the Liferent and so cannot be presumed to have been quite by redelivery thereof albeit it had been in the Husbands hands The Lords before answer to this Disputeâ— Ordained the Pursuer to condescend what the effect of this Write would be if it were made up for if it have no effect there were no necessity to make it up The Pursuer condescended upon the effect thereof thus that it would be effectual as an Interdiction published by the Inhibition to annual and reduce the Disposition of the Pursuers Liferent made by her Husband without her consent in favours of Milntoun her Step-son 2. This Bond being accessory to the Contract of Marriage betwixt the same and the Marriage is pactum dotale and must have the same effect as if it were included in the Contract of Marriage and so is a Provision for Securing of the Pursuers Liferent to her self and that no Deed by her Husband without her own consent should be effectual The Defender alleadged that none of these Condescendences could be effectual not the first because if the foresaid Bond were an Interdiction it would have no effect unless it were instructed that the granter thereof were prodigus and if it were Instructed that he was rei suae providus it could take away the effect thereof because an Interdiction is nothing else but constitutio Carâ—â—torum prodigo where albeit it is done of course periculo facientis sine causae cognitione with us Yet if it be on an false Ground and Narrative its ineffectual 2ly Though it could be instructed that the Husband was levis yet the Interdiction is null being to his own Wife who cannot be his Curator being sub potestate viri Nor Curator to any other much less can her Husband be made her Pupil contrair to the Law Divine and Humane Neither could the Bond be effectual as a Provision adjected to the Contract of Marriage because it being from an Husband to his Wife so soon as he was Married it returned to himself jure mariâ—i because nothing can consist in the person of the Wife which belongs not to the Husband jure mariti being moveable except an Aliment formerly Constitute to her in a competent measure The Pursuer answered that she opponed the Bond and further offered to restore to the Defender all that he gave for the Disposition of her Liferent The Lords after they had Reasoned the several Points in jure and found that without the offer the Bond could not be consistent as an Interdiction in so far as concerned the Husband to annul the Disposition but were inclined to Sustain the same for the Wife in so far as might extend to a competent Aliment of her Family to her Self Daughter and Servants not excluding her Husband Yer they found the offer so reasonable to Repay the Sum Payed for the Liferent being 5000. merks and the Liferent it self being eight Chalder of Victual and eight hundred merks that they found the effect of the Tenor would be to Restore either Party hinc inde but desired the Pursuer to let the Defender keep the Possession of the House and Lands wherein there was many Woods newly cutted he finding Caution to pay her eight Chalder of Victual and eight hundred merks which his Father was oblieged to make them worth by the Contract of Marriage Sir William Gordoun of Lesmore contra Mr. James Leith Iune 10. 1663. SIr William Gordoun of Lesmore pursues Mr. Iames Leith of New-lesly as representing his Father on all the passive Titles and condescended that he behaved himself as Heir by meddling with his Fathers Heirship moveable and with the Mails and Duties of his Fathers Lands of New-lesly and Syde The Defender answered to the first that his Father could have no Heirship moveable because he dyed Rebel and so his hail Goods belonged to the King as Escheat 2ly If need beis he offers him to prove that he dyed not only Rebel but his Escheat was Gifted and so as a Confirmation takes away vitious Intromission Moveables So the Gift with the Escheat must purge vitious intromission with Heirship being before intenting of this Cause 3ly He offers him to prove that the Heirship moveable was Confirmed promiscuously with the rest of the moveables and that the Defender had right from the Executor which Confirmation though it could not be effectual to carry the Heirship yet it was a collourable Title to show that the Defender had not 〈…〉 miscendi but that he meddled by a singular Title and neither formerly drew an Heirship nor meddled therewith as Heir appearing The Pursuer answered to the first that it was not relevant that he was Rebel nor that his Escheat unless it had been Gifted before his Intromission as well as before intenting of the Cause and that the Defender had Right from the Donator To the second it was answered by the Pursuer that the promiscuous Confirmation was not sufficient because he offered him to prove the Defender Confirmed his own Servant to his own behove The Lords found that the Defenders Father dying Rebel was not sufficient unless it had been Gifted and declared before intromission and they found the Reply Relevant that the promiscuous Confirmation was to the Defenders behove As to the second Member of the Condescendence the Defender alleadged that albeit his Father was Infeft yet his