all probable by Witnesses The Lords found the Disposition null and that the subscription of these two Notars not bearing that it was by Command could not be supplied by the Witnesses insert unlesse it had been the subscription of an Connotar Subscribing at the same time with a Notar whose Subscription bore Command Here it was Debated whether the Subscriptions of Notars at divers times were sufficient or if the Subscription of a Notar who was not authorized by the English and did forbear to Act at that time were sufficient but the former Vot made these to be undecided as not necessar seing the Writ was annulled by the former Vot Sir George Prestoun contra Sir Iohn Scot Iuly 1667. SIr Iohn Scot having pursued for payment of an Annualrent of 500. Merks out of Sir Iohn Prestouns Lands he alleadged payment thereupon Liâ—â—scontislation being made he produces three Receipts each 500 pounds bearing to an Accompt and alleadged that the odd fifty Merks was for publick Burden which compleating three years must Assoilzie from bygones It was answered the Discharges bore to be but granted by a Factor which was not probative and that they wanted Witnesses and that being given by a Factor they could not infer payment of all proceeding It was answered that Discharges of Annualrents or Rents are sufficient without Witnesses The Lords found that Discharges to Tenents were suffiâ—ient without Witnesses but not being granted by an Annualrenter to an Heretor and found that the Factors Discharge could not inâ—er payment of bygones The Owners of the Ship called the Castle of Riga contra Captain Seatoun Eodem die CAptain Seatoun a Privateer having taken a Ship at Sea she was declared Pryze at Cromarty the Owners pursue Reduction of that Decreet before the Admiral at Leith who Assâ—â—â—zied from the Reduction and adhered to the Dâ—creetâ— the Owners now pursue a Reduction of both these Decreets upoâ— this Ground that by the Treaty betwixt the King and the King of Sweden it is expresly declared that if any Swedish Ships having a Passe from the Kings Council or Colledge of Trade or Governour of the Province where frae she Louseth she shall not be questioned nor any Inquiry anent the Goods or Men and that because by the said Treaty it is Agreed that the said Passes shall expresly contain that the Ship and whole Goods belonging to the Subjects of Sweden contained no Counterband Goods and that upon Oath taken at the obtaining of the Passe na est the Governour of Livinia wherein Riga lyes hath given a Passe bearing that the Owners of the Ship called the Castle of Riga being Citizens of Riga did make Faith that Ship being then at Amsterdam did truely belong to them and was Loaded with their Goods only and was direct to France for a Loading of Salt to be returned to Riga and that there is produced an Extract out of the Admirality of â—rance bearing Faith to have been made that the Ship nor Goods nor any part thereof did not belong to the French nor Hollanders and a Certificat from the Swedish Resident in Holland Registrat in the Office of Admirality in England bearing this Ship to be a ship belonging to the Swedes and yet she was declared Pryze upon this ground only that the Sea-men did acknowledge they were Inhabitants in and about Amsterdam and that some of them Deponed that the ship was a Dutch bottom and one of them Deponed that they were paved by the Skipper who received the Money from a Water Bailzie in Amsterdam without proving that the ship or goods belonged to Hollanders which could not have been ground seing the Passe and Treaty did Exeem them from giving an Accompt or Inquiry anent their Mariners It was answered for the Defenders that all these Passes and Papers were a meer Contrivance and â—alls not in the Case of the Treaty because the ship Loused not from Riga but from Amsterdam and the Pass did not contain the particular Goods and Quantities according to the Conditions of the Treâ—ty and that the Testimonies proved that the ship had on a Dutch Flag that she came hot by the Channel but about the Back side of England and that the Company was afraid to meet with Scotish and English Privateers and having met with a ship in their Course asked for the Dutch Fleet calling it their own Fleet all which were strong Evidences that the ship belonged to Holland It was answered that albeit the Pass mentioned not the particular Goods which it could not do the ship being but to be Loaden the Certificat did abundantly supply that expressing the Loading as for the presumptions they are of no force because the Skipper though a Dutch-man yet was sworn a Citizen of Riga and might justly be more afraid of the English and Scots then of the Dutch and they might call the Dutch Fleet their own Fleet as being of their Nation at last they produced a Letter of the Kings bearing that His Majesty knew by sufficient Information that this was a ship belonging to Sweden and both by it and by a former Letter did peremptorly Command the Delivery thereof and the Goods It was answered the Kings Letter was impetrat upon false Information and if His Majesty had known the true state of the Case as it now stands in the Evidence He would not have so Written nor doth His Majesties Letter granted inaudita parte prejudge the privat Rights of his Subjects The Lords found that the Testimonies of the Witnesses did not prove that the ship and goods belonged to any of His Majesties Enemies and therefore in respect of the Pass Certificat Treaty and His Majesties Letter they Reduced both the Decreets Iuly 31. 1667. THis Cause being again Debated it was alleadged that the former Interlocutor having proceeded mainly upon His Majesties Letter there was no ground to proceed thereupon because it was granted inaudita parte and Acts of Parliament being done by His Majesty without consent of of Estates prejudge no party as to their privat Right but such as are called much less Letters thus impetrat upon importunity and groundless Representation and this Letter is Derogat by a posterior general Letter to the Lords Recorded in the Sederunt warranding the Lords to proceed And as to the Swedish Treaty it can never be understood further then as to Counterband Goods which are the Native Commodity of the Swedish Dominions for albeit some of these be dispensed to the Swedes because most of the Growth of their Countrey is such yet it cannot be extended to this Case where the Swedes Loadned Counterband Goods in Norway and carry them to France both being His Majesties Enemies neither can the Pass be sufficient except as to such ships as are within Sweden and where the particular Goods upon Oath are Attested and expressed in the Pass neither of which is in this Case It was answered that they opponed the former Interlocutor and that a solemn Treaty with so considerable an Allie
as the King of Sweden is not to be Retrenched nor Limited but by the exceptions contained in it self and in it there is no such exception but generally the Pass as is there qualified excludes all search or question of Men or Goods which is also the Kings meaning which appears expresly by the foresaid Letter which albeit it could not Derogat from a privat Right yet may well clear the dubious interpretation of a Treaty and is sufficient in this Case where the King alone dat leges bello The Lords upon consideration of the last Dispute did ordain the President to state the Case and represent it by the Secretary to the King both as to the meaning of the Treaty and the Letters and specially whether Counterband Goods not being the Growth of nor Loaden in Sweden were priviledged to the Swedes thereby November 6. 1667. THe said Cause being again called the President presented the Lord Secretaries Letter bearing the Kings Answer that the Treaty or Letter did not warrand the Swedes to carry Counterband Goods to the Countrey of his Enemies except their own Countrey Commodities Loaden within their own Dominions Whereupon The Lords sustained the Admirals Decreet as to that Reason of Reduction but gave the Parties a time to be further hear'd before Exâ—ract Hendâ—â—son contra Henderson November 14. 1667. HEnderson insisted in the Cause mentioned Ianuary 31. 1667. which was again fully Debated above and it was alleadged that the Writ in question was a Testament or at least donatio mortis causa or at least a Conditional Donation to take effect only in case the Disponer died before he returned so that his simple returning without any further purified the Condition and made it null The Lords having considered the Writ found that albeit it was not formal yet it had the Essentials of a Disposition and Donation interviros and that it was not null by the Disponers return unlesse he had revocked it for they found that the words being that he Nominat and Constitute Henderson his Heir and Successor and Donatar irrevockably to certain Tenements in particular with power to him in case the Disponer returned not to enter by the Superior and Enter to Possession and transferring all Right he had in that case which words Constituting him Donaâ—ar they found were Dispositive words and Effectual and the adding of Heir and Successor could not Evocuat the same and found the Condition of his not returning was not annext to the Dispositive words but to the Executive Clause of Entering by the Superior and taking Possession which was cleared by the Posterior Reservation to recal it after his return It was further offered to be proven that the Disponer not only returned but recalled the Disposition in so far as he had it in his own hands and power after his return It was answered that it was no way relevant unlesse the Delivery of it hoc intuitu were proven for he might have had it in his hands upon many other accounts It was answered that the very having of the Writ did presume that it was Delivered unlesse the other Party would offer them to prove that it came in his hands alio nomine Which the Lords found Relevant Thereafter it was alleadged that as the Disponers having of it presumed Revocation so the Acquirers having of it hereafter presumed a passing from that Revocation and a Reviving of the Right and now it is in the Acquirers hands as to this point the Parties did not Debate but it occurred to the Lords that the Disponers having might be sufficient to infer Delivery but would not infer that the Acquirers having thereafter would presume passing from the Revocation because the Clause reserving to the Disponer a power to Recal made the naked Recovery of the Writ sufficient to him and did annul it but it was more dubious what was requisit to revive it whether naked Having or expresse Delivery hoc intuitu or if something were not requisite in Writ and therefore before answer to that point The Lords ordained the Pursuers who now had the Writ to condescend and prove how they got it Iames Maxwel contra Adam Maxwel November 15. 1667. JAmes Maxwel and the Umquhil Lady Hiltoun his Spouse having Disponed their Land to Adam Maxwel Iames now pursues a Declarator of Trust whereupon the Lords formerly ordained Compt and Reckoning that it might appear what Adam had Expended upon the accompt of the Trust. In which Accompt Adam gives up certain Bonds by Iames whereunto he had taken Assignation against which he could alleadge no more then what he truely payed out in respect the time of the Assignation he was intrusted by the Pursuer The Defender alleadged non relevant unlesse it were alleadged he was intrusted to Compone for the Pursuers Debts but if it was only a Trust of his Land and not a general Trust of all his Affairs it could not reach their Bonds and albeit upon the account of Friendship or Charity the Defender might be desired to take no more then he gave there lyes no Obligation in Law or Equity upon him so to do but he may demand what the Creditors his Cedents or any other Assigney might demand The Pursuer answered that the intent of his Trust in his Lands being to preserve him from the rigour of his Creditors it was against that Trust to the Trusty to use the same rigour himself Which the Lords found relevant and ordained Adam only to get allowance of what he payed out Laird of Culteraes contra Silvester Chapman November 16. 1667. CVlteraes having pursued Silvester Chapman for payment of a Bond of two hundreth Merks subscribed by the initial Letters of the Defenders Name The Lords sustained the pursute the Defender being in use thus to subscribe and that he did subscribe this Bond the Notar and three Witnesses insert being Examined they proved the Defenders custom so to subscribe but as to the Actual subscribing of this Bond two were affirmative and two were negative denying their subscription Deponing that they remembred not they saw the Defender subscribe The Pursuers own Oath was also taken ex officio who affirmed the truth of the subscription and that the Witnesses insert were present the question arose whether the verity of the subscription were proven The Lords found that it was sufficiently proven the Pursuer being a man above all suspition and no improbation proponed Chalmers and Gardner contra Colvils Eodem die CHalmers and her Children pursues Hugh Colvil and others for Ejecting them out of their House and Lands of Lady kirk and spuilzy of their Goods therein the Lybel being admitted to Probation not only a Witnesse Deponed that he saw the Defender open the Pursuers Doors they being absent in Edinburgh and the Keys with them and cast out their Goods and enter in Possession who was admitted cum nota as being Interessed as Tennant and concurring with these Pursuers in a pursute with the same Defenders before the Council upon the
in Enemies Goods or Counterband Goods or the return of Counterband Goods Parkman raised a Reduction of this Decreet on these Reasons first That the Crown of Sweden not only being an Allie to the King but having a Solemn Treaty with him in the second Article whereof it is specially agreed that the Subjects of Sweden having Passes from the Governour of the City or Province where they Louse or from the Colledge of Trade bearing that Faith had been made that the Ship men and Goods did belong to the Swede and none other and that they had therein no prohibit Goods that such a Passe being shown in any Ship there should be no further search or inquiry in the Men or Goods the like whereof is granted to the Kings Subjects either King trusting the Governours of the other in that matter by which Treaty also Counterband Goods are determined amongst which Tar or Stock-fish are no particulars ita est Parkman had a Passe when he Loused from Sweden conform to the Treaty likeas there is a second Passe sent over-land to him when he Loused from Amsterdam to France which being shown to Captain Allan at the seasure he ought not to have taken him or enquired any further nor can he now make it appear that Parkman hath transgrest the Treaty and as to the three Men of his Company one was hired in Denmark and two in Holland upon necessity so many being wanting of his necessary Company by Death or Absence there so that what he did of necessity and not to advance the Interest of the Kings Enemies can be no Delinquence 3dly Whatever might have been alleadged against him if he had been taken with Enemies Goods Aboard or with Counterband Goods which are such by the Swedish Treaty yet he was seased having none of the Goods Aboard nor the product thereof but of his Fraught and upon the accompt of his Owners in Sweden he could not be Pryze because there is nothing in the Treaty bearing that Ships should be Pryze not having actually in them Enemies Goods nor Counterband Goods but the product or return thereof neither doth it appear that he sold any Tar in France for the Entering of the Tar or paying Custom will not necessarly Import it was sold but his Factor might have unwarrantably put up that Article which being wholly inconsiderable he did not contravert and by the same papers taken Aboard it did appear that at his Lousing from France he had the same quantity of Tar which was inconsiderable and necessar for the use of his Ship being an old Ship and two Barrels was found Aboard when she was taken and some part behoved to be allowed for the use of the Ship so that at most there could be but one or two small Barrals of Tar sold which is inconsiderable and could be no ground for declaring an Allie Pryze nam de minimis non curat lex and as to the Stock-fish or any Commeatus or Provision quae habent promiscuum usum in bello pace they are only Counterband when they are carried in to relieve a beseiged place or to these that could not subsist without them according to the Reason and Opinion of Grotâ—us de jure belli lib. 2. cap. de his quae in bello licent It was answered for Captain Allan that the Reasons of Reduction ought to be Repelled because albeit Parkman got a Passe from Sweder conform to the Treaty and according thereto came from Sweden to Denmark in which Passage he was not challenged but having engadged in Denmark to serve the Danes then the Kings Enemies he did unquestionably carry merces hostium from Denmark to Holland and eight or nine Last of Tar which is Counterband beside the six Barrels of Tar carried from Holland to France and Entered and sold there and the Stock-fish and albeit Tar be not enumerat as Counterband in the Swedish Treaty yet it is comprehended in the general Clause of alia instrumenta bellica for there is no more eminent Instrument of War not only for shipping but for all Engines of War and suppose that by the Swedish Treaty Tar were not Counterband yet that Treaty can be only extended to the Subjects of Sweden Trading to and from Sweden but not to Warrand them to carry these things which de jure communi are Counterband from any other Countrey then their own to the Kings Enemies so to partake with the Kings Enemies to his Detriment And as to the second Passe send to Holland it is no ways conform to the Treaty but is most grosse and inconsistent bearing not only the Ship to belong to the Swedes but also all the Goods input or to be input in her to belong to them and to be free Goods without expressing any particular as to the return of Enemies Goods or Counterband Goods that it is a ground of seasure being the immediat return and the Captains Commission granted by the Admiral bearing so much expresly and the Instructions given by the Council in a former War anno 1624. which were sufficient Warrand for the Captain to sease and are founded upon evident Reason viz. That the Kings Allies are Neuters having assist his Enemies with Counterband Goods it is a Delinquence deserving that the Delinquent should be seased as an Enemie at any time and yet the Kings Commission hath mitigat it only to be in the return of that same Voyage wherein the Counterband Goods were carried for if an Allies Ship having Counterband Aboard were taken in her Voyage to an Enemies Port she might more reasonably pretend that intention was alterable and no Crime until actually she had Disloaded in the Enemies Port but could have no pretence if she were waited till immediatly after she came out of the Port although then the Enemies Goods or Counterband Goods were not Aboard The Lords upon a part of this Debate having formerly written to my Lord Secretary to know the Kings mind whether the Swedes by their Treaty might carry from other Countreys that which was de jure communi Counterband albeit not Counterband by their Treaty his Majesties answer was negative whereupon the Lords proceeded to consider whether Tar was Counterband de jure communi they found it was but did not find the Stock-fish Counterband except in the case of a siege to which point Secretary Morish Letter was produced in relation to the Custom of England and having also considered the Proclmation of War in which there is no mention of returns but only a Warrand to sease Ships belonging to Enemies having in them Enemies Goods or Counterband Goods and having also considered the Admirals Commission which extends only to the return of Counterband Goods and not to the return of Enemies Goods and it being offered to be proven positive that by the Custom of England no seasure is sustained upon returns but only when Enemies Goods or Counterband are actually taken Aboard they were unclear whether seasure should be sustained in any other case upon
when ever he could be found yet the Law of Nations hath for the freedom of Trade abridged it to the immediat return of the same Voyage because quarrels would be multiplied upon pretence of any former Voyage Parkman having raised Reduction of the Admirals Decreet insists on these grounds First That by the Kings proclamation Denuncing the War it is evident that the King gives only Command to seise upon Ships having in them Enemies Goods or Counterband Goods without any mention of seising them in their return which would destroy the freedom of all Trade for upon that pretence every Ship that were met with at Sea might be brought up and therefore the Kings Proclamation did justly and humanly Warrand the seisure of Ships only when the Enemies Goods or Counterband Goods is found Aboard in which case for most part the cause of seisure is sensible to the Eye wherewith there was also produced a Testificat from Judge Ienkins Judge of the Admirality Court of England by the Kings Warrand upon the Petition of the Kings Resident of Sweden wherein he having advised with the Kings Advocat general who dayly attended that Court declareth that none of them remembers that in this War any Neuter were made Pryze in their return with the product of Enemies Goods and that he knew no Law nor Custom for the same 2dly There was produced the Treaties betwixt the King and the Crown of Sweden bearing that the Swedes should be made Pryze carrying Enemies Goods or Counterband Goods si deprehendantur It was also answered to the Reasons of Adjudication that the Stile of a Commission not granted by the King immediatly but by the Admiral could be no ground of Adjudication of Friends and Allies who were not obliged to know the same or what was the Tenor of the Admiral of Scotlands Commissions but were only obliged to take notice of the Law and Custom of Nations and of the Kings Proclamations of War and as to the Admirals Commission and Decreet thereupon in Anno 1627. It could not evidence the Custom of Scotland being but a Decreet in absence and upon a Lybel bearing not only the carrying of Counterband before in that Voyage but having actually Aboard Enemies Goods the time of the seisure which Lybel is found relevant by the Admiral but it appears not that he would have found it relevant alone upon the product of Counterband much lesse that that was proven and in Decreets in absence the Lords themselves suffers Decreets to pass with far less consideration and ofttimes of course so that it were strange to fortifie the Admirals Decreets that are now quarrelled after full hearing upon an Decreet of the Admirals in absence It was answered for Captain Allan that the Pursuer could not enjoy the benefit of the Swedish Treaty because he had transgrest the Treaty and served the Kings Enemies and as to the Testificat of Judge Ienkins or Custom of England this being a distinct Kingdom is not Ruled by the Custom of England and Judge Ienkins Testificat was impetrat by the Pursuer and not upon any Commission or proposal made by the Lords and the case therein mentioned is only anent the seisures in the return with the product of Enemies Goods and says only that they do not remember that ever the Case was decided there but says not that the Courts of Admirality had found that upon any Plea or Dispute that Ships could not be taken unless they had Aboard Counterband or Enemies Goods The Lords having formerly in this Cause desired to know the Kings Pleasure whether by the Swedish Treaty which maketh far fewer things Counterband then what are such by the Law of Nations and by which Tar is not Counterband the Swedes might Loaden Tar in Norway not being their own Growth and carry it to the Kings Enemies The King returned answer negative in which the Lords acquiesced and as to the present Dispute The Lords did not find the grounds alleadged for the Privatâ—er relevant or sufficient to instruct the Custom of Scotland or the Rule of the War and had litle respect to Judge Ienkins Testimony and therefore were not clear to approve the Adjudication but before answer did declare that the Lords by their own Commission would inquire in the Custom of Nations concerning the return of Counterband or Enemies Goods both by Commissions direct to England and other places Captain Strachan contra Morison February 22. 1668. CAptain Srachan pursues the Heirs of Umquhile George Morison before the Admiral for a Ship and Goods mâ—dâ—ed with wrongously by George and others in Anno 1638. They raise Reduction on this Reason that there was no Probation but one Witness and Captain Strachans Oath taken in supplement The Lords having considered the Probation in relation to the Ship found it sufficiently proven that Captain Strachan was an Owner of an eight part of the Sâ—â—p but found that the value thereof was not proven and seing Morison and the other partners sold the Ship after they had long made use of her without Strachans consent they found that Strachans Oath in litem ought to be taken as to the value and would not put him to prove the same after so long time and for the profits thereof ordained him Annualrent since he was dispossest This question arose to the Lords whether there being three Partners beside Captain Strachan who all medled whether Morison should be lyable in solidum or only for his third part in which the Lords found the Ship being corpus indivisibile and all the Partners in a Society and that Captain Strachan being absent in the Kings Service from the time of their medling to the Kings return and the other Parties in the mean time becoming insolvent The Lords found George Morison lyable in solidum for the eight part of the Ship but as to the Wines and others that were in the Ship whereanent there was no co-partinery proven and but one Witness of George Morisons Intromission and Captain Srachans own Oath in supplement The Lords found the same not sufficient and yet allowed Captain Strachan in fortification of the Decreet to adduce further probation Gavin Cochran contra 〈…〉 Eodem die GAvin Cochran as Donator to the Recognition of certain Land holden Waird of my Lord Cochran pursues the Vassal as having Alienat the Major part and also the Subvassal to hear and see it found and declared that the Lands had Recognosced by the Alienation made by the Vassal so the Subvassal It was alleadged for the Subvassal that he was Minor and therefore During his Minority non tenetur placitari super haereditate paterna It was answered that that holds only in Disputing the Minors Rights but is not sufficient against the Obligation or the Delinquence of the Defunct 2dly The Party principally called in this Process is the Vassal who is Major and whose Fee falls to the Superior by his Alieanation and the Subvassals Right falls only in consequence so that no priviledge of
wayes secure contra acquirenda unless the Assignation or Disposition had been equivalent to the Debt and satisfied it The Defender answered that that which was here Acquired was only a Fee for Service which is Alimentar and the Fee will not be due unless the Defender Serve in suitable condition effeirand to his place and therefore it cannot be made forth coming to any other use The Lords found that a Fee in so far as was necessar for the Servants Aliment conform to his condition of Service could not be reached by his Creditors to whom he had made cessionem bonorum except as to the superplus more then what was necessar and they found no superplus in this case Captain Allan contra Parkman Eodem die CAptain Allan having taken Bartholomew Parkman and obtained him to be declared Prize Parkman raises Reduction and for fortification of the Admirals Decreet of Adjudication these Grounds were alleadged First That by the Testimonies of the Steirsman and Company it was proven that three of the Company were the Kings Enemies and so conform to the Kings Declaration of War Ordaining all Ships to be seazed wherein there were any number of men belonging to the Kings Enemies this Ship was Prize as was lately found in the case of the Ship called The Castle of Riga And albeit by a former Interloquitor the Lords had not found three men to be a number sufficient for Confiscation Yet it was not then considered that the whole Company consisted but of eight so that near the third of the Sailers were the Kings Enemies and one of them the Steirsman which is a considerable proportion 2dly This Ship though pretended to belong to the Swedes yet she had served the Kings Enemies the Danes and Hollanders two years and by the Swedish Treaty it is provided quod naves nullo modo accommodentur utriusque foederati inimicis 3dly It is also proven that this Ship carried Counterband-goods viz. Tar which was not the product of Sweden but carried from Denmark to Holland and that she was taken in her return having in a loadning of Salt from France so that albeit the Ship had been empty she might have been taken Prize in that same Voyage in which she did partake with the Kings Enemies or being taken in the same Voyage in which she had carried bona hostium And lastly it was also instructed that the Cargo with which she was taken was the product of the Counterband-goods and so in the same case as if the Counterband-goods had been actually in her the product being surrogatum quod sapit naturam surrogati It was answered for Parkman to the first Ground that he opponed the Lords Interlocutor finding three Sailers no sufficient number for Confiscation And in the case of The Castle of Riga the major part at least the half were the Kings Enemies To the second Ground it was answered that the Kings Allies making use of their Ships for Fraught was no way a lending of them to the Kings Enemies and as for the remnant Goods by the Kings Declaration of War there is only given Warrand to sease Ships having in them Counterband-goods or Enemies Goods and the Swedish â—rety bears expresly si deprehenduntur so that this Ship having in her when she was taken no Counterband nor Enemies Goods is free It was answered that the Kings Declaration although it mention some cases of Seasure is not full or exclusive but the Law of Nations must take place or the Custom of Scotland in cases not exprest in the Kings Declaration And as for the Swedish Treaty it cannot be pleaded unless Parkman had a Pass from Sweden in all points conform to the Treaty but their Passes were in several things disconform as being granted when the Ship was in Holland and sent over Land And as for the Custom of Scotland to take Ships in the return of that Voyage in which they carried Counterband or prohibited Goods it appeareth by the Captains Commission and former Commissions in Anno 1628. and by a Decreet declaring a Prize wherein the same ground was Libelled that she was taken in the return of that same Voyage in which she had carried Counterband And the Lords having Written to my Lord Secretary his Letter in return bears That the Lords should decide according to the Law of Scotland It was answered for the Stranger that the particular Custom of Scotland can be no Rule for the Swedes but only the Law and Custom of Nations â— and that England nor no other Nation hath that Custom to make Seasure but in delicto otherwise all Trade and Commerce would be destroyed unless Seasure were only upon what were visibly Aboard and not upon the pretence of what had been Aboard and albeit a Delinquence once committed by partaking with the Kings Enemies might endure for a longer time Yet the Custom of Nations for the utility of Trade hath Abridged it to actual Seasure in delicto and accordingly Judge Ienkins Judge of the Admirality in England hath Attested that during this War after search of the Records and Conference with other Judges he knows not of any Prize declared but when the Counterband goods or Enemies Goods were taken actually in them And for the Decreet alleadged on albeit that Ground be in the Libel yet other Grounds are also therein and there is no Debate as to that particular Point neither doth the Probation mentioned in the Decreet clear that that Point was proven And as to the Tenor of the Commissions albeit they might excuse the Captain from Fine or Damnages yet Strangers did not nor were not obliged to know the same but the Law and Custom of Nations and the Kings publick Declaration of the War and their Treaties The Lords having considered the Debate and that the several Points were of Importance and Preparatives they resolved to take the Grounds joyntly and so found the Ship Prize as having so considerable a proportion of her Company the Kings Enemies Some also were of the opinion that she having been taken in the return was sufficient especially not having a sufficient Swedish Passâ— but the plurality waâ—ed these Points whether the returns of Enemies Goods or Counterband or whether the Product or not Product thereof were sufficient Grounds of Seasure seing it did not so appear by the Custom of Nations or the Kings Declaration of War but by the former Debate it appeared that she had Aboard when taken a small parcel of Tar. Mr. David Falconer contra Sir Iames Keith Iuly 14. 1668. MR. David Falconer gave in a Complaint against Sir Iames Keith of Caddam that he being in the exercise of his Office informing the President to stop a Bill of Suspension given in by Sir Iames Keith Sir Iames did revile and threaten him calling him a Liar and a Knave and saying if he found him in another place he would make him repent what he said The Lords having received Witnesses in their own presence and finding it proven sent Sir James
a perpetual Tack and would not Sustain the samine in part and found it totally null and that the Receiving of the former Duties was no Homologation thereof Captain Wood contra Boyneilson Eodem die CAptain Wood having taken a Ship of Norway whereof Boyneilson was Master called the Raphael Prize she was Adjudged by the Admiral and there is now Reduction intented of the Decreet of Adjudication in fortification whereof the Privateer Insists upon two grounds First That this Ship belongs to the Kings Enemies with a considerable part of the Loadning viz. 1500. Dails as is acknowledged by the Skippers Deposition 2dly Whereas she pretends to have been bound for London upon the Kings Proclamation giving liberty to all his Subjects to import Timber from Sweden and Denmark by the Ships and Mariners in these Countreys though then in Enimity yet the said Proclamation requires that all such Ships shall find Caution at the Custom-house to return straight to England without going aside into an Enemies Countrey and requires the Lord Admirals Pass but this Ship at the time of the Adjudication did not pretend to the Duke of York's Pass but only to the Duke of Richmond's Pass as Admiral of Scotland whereas the Proclamation warrands only the Duke of York to give such Passes neither doth he produce now any Pass from the Duke or any extract of a Pass from him It was answered for the Strangers and for Iohn Dyson Citizen of London that they having Contracted conform to the Kings Proclamation for importing Timber and having found Caution and obtained a Pass conform to the Proclamation the Ship and Loadning cannot be made Prize upon the Skippers Oath that they had Aboard 1500. Dails belonging to him and the Company First Because the Skipper is testis singularis 2dly By the constant Custom Sailers have Portage Dails allowed 3dly The number of the Dails is insert but with Figures and might easily have been altered after the Testimony from 500. by adding one and from 150. by adding a Cipher neither of which would have been sufficient to infer Confiscation 4thly Iohn Dyson Citizen of London having bona fide Contracted with the Stranger for importing 6000. Dails albeit the Skipper had foisted in some more it cannot infer a Confiscation of a Loadning belonging to him the Kings Subject Contracting bona fide whatever it may infer as to the Strangers Ship and his own Dails As to the second point anent the wanting the Duke of Yorks Pass there is produced a Testificat of the Dukes Secretaries and the Ship having been Bought from the Privateer by Captain Lye who carried her to London the Duke gives her a Pass to return from London to Norway bearing that he had given her a former Pass to come into England there is also produced His Majesties Letter that he is sufficiently informed that this Ship is Authorized by a sufficient Pass and therefore ordering her to be Restored with Testificats from the Customers that Caution was found there and the Testimony of the Skipper and a Sea-man taken at London bearing that Captain Lye having Bought the Ship from a Privateer desired the Skipper then in Prison to show him the Duke of Yorks Pass which when he shew'd him he pulled it out of his Hand to secure the Ship against all which it was objected that all these were impetrat after the Ship was declared Prize and that it is the more suspitious that at the time of the Adjudication there was not so much as mention made of the Duke of York's Pass though the Duk of Richmonds Pass was rejected as not sufficient without the Duke of Yorks and that as yet there is no Extract of the Pass out of any Record and as for his Majesties Letter it hath been impetrat suppressa veritate and cannot take away a Parties privat Right but is salvo jure as are all Acts of Parliament done by His Majesty and three Estates incitata parte much more such a Letter as the Lords found in the case of the Castle of Riga and though there had been a Pass from the Duke of York it is likely not to have been of this Date but for a former Voyage The Lords found the alleadgeance for the Privateer that there was 1500. Dails Aboard belonging to the Kings Enemies Relevant to Confiscat the Ship and Dails but not to Confiscat Iohn Dysons Dails His Majesties Subject who acted bona fide if he can make out a Pass and before answer to that point grants Commission to Sir Robert Murray to try if there were a Record keeped of the Dukes Passes and if therein there was a Pass for this Voyage and to send down the duplicat thereof compared with the Principal and Signed by Sir Robert and to try at the Records of the Custom-house if Caution was found there and if there was no Records of Passes to take the Oath of Captain Lye concerning the Pass alleadged taken by him and ordained the Members of the Court of Admirality to be Examined upon Oath whether the Testimonies in Figures for 1500 Dails was given in Figures as it bears and found the Skippers Testimony alone to prove not only against himself but the Owners because he was entrusted by them in this Affair Duke Hamiltoun contra the Feuars of the Kings Property Iuly 14. 1669. THe Duke of Hamiltoun as Collector-general of the Taxations having Charged the Feuars of the Kings Property for payment of this current Taxation several of them Suspended upon this Reason that by the Act of Convention there is abatement given of a third part to such Shires as in the West and South in regard their Retours are higher then the rest of the Countrey and yet these of the Kings Property are Charged for the whole It was answered that that abatement cannot extend to the Feuars of the Property because in all former Taxations they were distinct both from the Temporality and Spirituality and therefore though by the Act of Convention the Temporality of these Shires be eased it will not extend to the Property especially seing the Reason of the Act cannot extend to them for the Feuars of the Property did bear no Taxation till the year 1592. and then there was a Commission granted for Retouring them and that Complaint of the high Retours of the Shires being then known these of the Property would doubtless endeavour to have easie Retours It was answered that the Act of Convention expresly Regulating the Taxation both as to the Spirituality and Temporality it cannot be thought but that these Members did comprehend the whole and seing the Property cannot be of the Spirituality it must be of the Temporality which hath the abatement as to these Shires without exception and albeit the Property was lately Retoured yet there being no Rule to estimate a Merk-land or Pound-lands Retour by or how many Pounds of real Rent makes a Pound of Retour there could be no other Rule but to make the Retour of the Property
accordingly hoc judicio he was not obliged to Dispute any anterior Possession Which the Lords found Relevant Hans Iurgan contra Captain Logan July 23. 1667. CAptain Logan a Privateer having taken Hans Jurgan Citizen of Lubeck obtained his Ship and Goods adjudged Prize by the Admiral upon this ground that he had carried in Prohibit or Counterband Goods to the Danes being then the Kings Enemies viz. Hemp and Victual and that he was taken in the return of that Voyage which was instructed by the Oaths of the said Hans and Sailers Hans raises a Reduction of the Admirals Decreet on these Reasons First That the Victual was no Counterband Goods but such Goods as the King allowed his own Subjects to Export out of England and declared that there should be no question thereupon nor upon any Goods not enumerat in an Act of Council produced all which are bellicus Instruments and Furniture and hath nothing of Victual and albeit Hemp be Prohibit by that Act and commonly counted Counterband Goods yet the quantity Deponed was only sixteen Stones which is an unconsiderable quantity and necessar for Calfing the Ship and Sowing the Sails 2ly The Pursuer produced the Duke of York his Pass Warranting this Ship to come from Bergen and therefore she could not have been taken in her return by any Privateer 3ly Whatever might have been alleadged if the Ship had been taken having unfree Goods in her there is neither Law nor Custom to sease upon the Ship in her return when these Goods are not in her for the Shâ—p might have been sold to another then he that did the wrong and it cannot appear whether the return was made out of the price of the former Fraught and though it were it might be of a hundreth times more value And albeit such seasures in return were allowable yet they could only be sustained when it is evident at the time of the Seasure at Sea that the Counterband Goods had been in the Ship that Voyage either by Bills of Loading Charter parties or other Writs taken in the Ship or by the Oâ—ths or acknowledgements of the Company otherwise upon that pretence Freedom of Commerce would be altogether stopped seing every Ship might be brought inâ— that they may be tryed by the Admiral whether or not they had in Counterband Goods that Voyage 4ly These Strangers could not be in culpa before the Indiction of the War could come to their Ears but the Indiction of the War was by the Kings manifesto of the Date the ninteen of September 1666. and this Ship Loosed from Lubeck the 24 of September within five days after and so could not possibly know the Indiction and they Trading bona fide as they were formerly accustomed cannot be seased as injuring the King in assisting his Enemies and they did nor could not know they were such It was answered for the Defender that he had walked exactly according to his Commission bearing expresly all kind of Grain to be Counterband Goods and being impowered to sease upon any Ship in return that had carried in Counterband Goods and that it was in the Kings power leges imponere bello and that Victual is Counterband Goods it is evident not only because it is the first necessary in War especially for Victualling of Ships Norway being a barren Countrey that hath little Grain of its own and produced a Treaty betwixt the King and the Crown of Sweden wherein the Swede hath a liberty to carry Counterband Goods bearing expresly in the Latin Annâ—na in the Dutch Proviant which shows what Goods are accounted Counterband Goods not only by the King but other Nations and for this Seasure in the return it is not only warranted by the Commission but upon evident Reason because the Kings Allies have free Trade both with Him and his Enemies so that they partake not with his Enemies against Him by furnishing them Instruments or Furniture of War and any privat Party transgressing the same might de rigore juris be seased upon as an Enemieâ— and it is favour and benignity that the seasure is allowed only in that very Voyage in which the wrong is done As to the Duke of Yorks Passe Scotland being a free Kingdom and the Duke not Admiral of Scotland his Passe or passing from any Delinquents can only be Operative in England and that which is produced is only an Extract out of the Admirality Court bearing that such a Ship was Cognoseed to be a Lubeck Ship and so that she might freely passe which cannot import the Dukes knowledge much lesse his passing frae her carrying of Counterband Goods as to the pretence of Trading bona fide and the ignorance of the War no respect ought to be had to the alleadgeance because the War was begun and flagrant long before the Lousing of the Ship and there is no necessity of Manifesto's to indict War but Acts of Hostility and publick fame of a War are sufficient to hinder Allies of either Parties or Neuters to assist against their friends and here it s offered to be proven that six Moneths before this Ship Loused many Commissions were granted against the Danes Prizes taken and the Kings Subjects taken by the Danes and declared Pryze at Bergen upon the account of the War which must be presumed to be known by the Pursuer and the City of Lubeck being a Hanse Town of Trade which keeps Intercourse with London and other Towns of Trade and as to the Act of Council permitting the Kings Subjects to Trade even in Corn with his Enemies it is a special Indulgence in Favours of England only and could not be effectual as to Scotland and much lesse to Strangers The Pursuer answered that there Was nothing alleadged to show by Law or custom that Victual is Counterband Goods unlesse it were carried in to an Enemy for Relieving a Besieged place but not when it is but in common Commerce and if the Lubeckers be hindred to Trade in Corn or the like being the only Growth of their Country their Trade is altogether marred contrary to the Kings Interest and Intention who has written to the Emperour most favourably in behalf of the Hanse Towns for the freedom of their Trade and acknowledges them his good Allies and not meerly Neuters which Letter is produced neither is the palpable inconvenience answered if Privatteers may bring in all the Ships whether they carried Counterband Goods in that Voyage though they find none in them neither is there any thing alleadged sufficient to instruct that the Pursuers knew or were obliged to know of the War betwixt the King and Denmark before they Loused from Lubeck for any Acts of Hostility before the solemn Indiction produced were such Deeds as the Pursuers were not obliged to notice for the taking and declaring of Prizes doth not include Enimityâ— or War but may be for reparation of privat injuries without intention to make an open War although a Pryze of the King of Britains Subjects had been
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
Pursuers licence he could give licence to no other Mr. Iohn Forbes contra Innes February 20. 1668. MAster Iohn Forbes insisted in the Cause against Margaret Innes mentioned in the 8th of Ianuary last for Mails and Duties as Assigney by Margaret Allardice who being Infeft in Liferent in principal Lands and Warrandice Lands and the principal Lands being evicted she and the Pursuer her Assigney returns upon the Warrandice Lands wherein Margaret Innes is Infeft in Liferent by her Husband who stood publickly Infeft therein upon the Resignation of Margaret Allerdices Husband and who alleadged Absolvitor because the Defender and her Husband being Infeft and in Possession these 20. years past have the benefit of a Possessory judgement and so cannot be put from her Possession till her Right be Reduced The Pursuer answered that the benefit of a Possessory judgement can take no place against a pursuit upon an Infeftment in Warrandice unlesse the Possession had been seven or more years after the Eviction for before the Eviction there could be no Pursuit upon the Infeftment of Warrandice in the same case as an Infeftment of Liferent is not excluded by a Possession during the Husbands Lifetime when the Wife could not pursue The Defender answered that the Pursuer ought in a petitory judgement to have declared the Distresse before he could put the Defender from her Possession The Pursuer answered there was no Declarator required but only the Eviction which gives immediat recourse upon the Warrandice Lands The Lords repelled the Defense and found no need of a Declarator or Reduction to attain recourse and that a Possessory judgement was not compent upon any Possession anterior to the Eviction The Defender further alleadged Absolvitor because this pursuit is founded upon Margaret Allardice her Infeftment in Warrandice which is base holden of her Husband and the Defender and her Husbands Infeftment are publick holden of the Superior and albeit posterior to the Infeftment of Warrandice yet is preferable the Infeftment of Warrandice being base never cled with Possession The Pursuer answered that Infeftments in the Warrandice are sufficiently validat by Possession of the principal Lands especially now when all Seisings must be Registrat as was lately found in the Case of Iohn Scot and the said Margaret Allardice has not only been in Possession of the principal Lands since her Husbands Death but her Husband was in full Possession of both which is more then sufficient The Pursuer answered that in Scots Case this was singular that in Iohn Scots Case both the Principal and Warrandice Lands were granted in an Infeftment and so the Person Infeft being in Possession of the principal Lands his Infeftment could not be partly publick and partly privat but this Infeftment in Warrandice is ex intervallo The Lords repelled also the Defence and found the Infeftment in Warrandice though base sufficient the Person Infeft being in Possession of the principal Lands albeit the Infeftment in the Warrandice Lands was ex intervallo Farquhar of Tonley contra Gordoun Eodem die FArquhar of Tonley pursues Reduction of a Bond granted by him upon Minority and Lesion It was alleadged Absolvitor because he had Homologat the Bond in so far as he being Cautioner in the Bond he had pursued releif and obtained Decreet for releif which did necessarly import that he acknowledged himself bound else he could not have craved releif The Pursuer answered that seing the Bond stood unreduced at that time he might lawfully pursue the principal Debitor to releive him against which he could have no objection for the benefit of Reduction upon Minority is peculiar to the Minor himself and no other can make use of it and in his pursuit of releif he might very well have declared that in case he obtained not releif against the principal Debitor he might free himself by Reduction against the Creditor so that Homologation being a tacite consent can never be presumed where the Deed done might have another intent and his pursuit for relief was not to bind himself but to louse himself he did also alleadge that the pursuit of releif was at his Fathers instance and his own promiscuously and after the Decreet was thereupon extracted he gave it in again and took a new Extract which bears not a releif for him of this Debt The Lords found the Pursuit and Decreet of releif to be no Homologation to exclude this Reduction The Defender then offered him to prove that the Pursuer was Major when he Subscribed so that the Lybel and Defence being contrary and great advantage arising to him who had the benefit of Probation by Highland Witnesses The Lords resolved to prefer neither to probation but before answer ordained to adduce such Evidents and Adminicles as they would use to prove the Pursuers age that they might prefer the strongest and clearest Probation Sir Laurence Scot of Clerkingtoun contra the Lady Clerkingtoun February 21. 1668. SIr Laurence Scot of Clerkingtoun having obtained himself to be Executor surrogat ad omissa et male appreciata of his Fathers Testament and having obtained licence to pursue pursues the Lady Clerkingtoun as principal Executrix who alleadged no Processe upon the licence because licences are only competent to Executors principal before there be any Confirmation after which the Commissars neither use nor may give licence ad omissa as was found the 14. of December 1621. Halliday contra observed by Dury The Pursuer answered that there was more reason to sustain licences after the principal Confirmation when the best of the Inventar was given up and what remained was uncertain and for the practique the Lords had since allowed licences after Confirmation The Lords repelled the Defense and Sustained the Processe upon the licence Bartholomew Parkman contra Captain Allan Eodem die CAptain Allan a Privateer having taken Bartholomew Parkman an Swede he obtained him to be Declared Pryze by the Admiral upon this ground mainly that he had carried Tar being Counterband Goods from Norway to Holland then in Enmity with the King and from thence carried ballast to France and returning with a Loadning of Salt was taken because by the Captains Commission from the Admiral he was warranted to to take Ships carrying Counterband Goods or to take the saids Ships in their immediat return after they have carried Counterband Goods to the Kings Enemies which hath always been the Custom of Scotland as appears by Commissions granted by the Admiral Anno 1627. of the same Tenor and by a Decreet of the Admiral at that time finding the Lybel relevant bearing that a Ship was taken in her return having taken in Counterband to the Enemy in that Voyage which is founded upon evident reason because that while Ships are going towards the Enemy it is but an intention of Delinquence against the King and assisting his Enemies but when they have actually gone in and sold the Counterband it is delictum Commissum and though it might infer a quarrel against the Delinquent
Mother done by Mr. Iohn Elâ—is Commissioner for her it was without Warrand and so null The Lords repelled both Defenses and found that the Contumacy incurred by not paying or suspending Debâ—to tempore which is the cause of the Denunciation was not taken away by the dissolution of the Marriage Patrick Dun contra Isobel and Elizabeth Dunes his Sisters Eodem die UMquhile Doctor Dun having provided 4000. Merks to one of his Daughters and 10000. Merks to another and Entertainment during their Minority that their Portion might go to the Fore bearing Annualrent did thereafter grant to Isobel another Bond of 2000. Merks whereof Patrick his Heir raises Reduction as being done on Death-bed after the Defunct had broken his Leg and the same was cut off whereof he took a Fever and Died and never went out to Kirk or Mercat The Defenders answered that they offered them to prove that albeit the Defunct happened not to come out yet he was in his leige Pousty and perfect health and did all his Affaires which did much more evidence his health then the stepping out to the Mercat 2dly The Bond in question being a Provision to a Daughter it was a Natural Obligation which the Father might do on Death-bedâ— The Pursuer answered that the Law allowed no other evidence to give Capacity to Dispone in leige pousty but going out to Kirk and Mercat and if any equivalent were accepted it would render the most Ancient Law Doubious and Elusory As to the second the Defender having been Portioned before any Adition on Death-bed had not so much as the favour of a Portion Natural The Lords repâ—lled the Defences and sustained the Summonds The Owners of the Ship called the Castle of Riga contra Captain Seatoun Eodem die THis Cause being Debated the 27th of Iuly last in which Debate Captain Seat un did chiefly insist to maintain the Decreets of Adjudication upon the presumptions and evidences that the Ship or Loadning did truly belong to the Hollandeâ—s and that their Passes and Bills were but Contrivances which the Lords found not sufficiently proven to make her Pryze Now the Captain insists upon another ground contained in the Decreets of Adjudication viz. That she was Navigat by Hollanders the Kings Enemies and therefore by the Kings Declaration of the War the Ship and Goods are lawful Pryze because the last Article of the Declaration bears expresly to take all Ships Pryzes that are Sailed by the Subjects of the United Provinces and by the Testimony of the Witnesses taken at Cromarty It was evident that the whole Company was Hollanders taken on at Amsterdame and Residenters there It was answered for the Strangers that there was a solemn Treaty perfected betwixt their King and the King of Sweden their Soveraign that Treaty behoved to be the only Rule as to the Subjects of Sweden by which there was nothing provided that a Ship should be Pryze being Sailed with Hollanders but on the contrair the Passe agreed upon by the Treaty and exprest vâ—rbaâ—im therein bears that Oath is to be made that the Vessel and Loadning belongs to Swedes but makes no mention of what Countrey the Sailers should be and bears that the Master of the Ship may be of any Nation and therefore mulâ—o magis the Sailers It was answered for the Captain that the Treaty with the Swedes cannot be the adequat Rule in relation to all Swedish Pryzes there being multitudes of Cases not touched therein and it cannot be thought the intent of the King in so short a Treaty to comprehend all the Laws of Nations at Sea and all the Cases de jure belli betwixt their Subjects but the Treaty doth only clear some most important Cases and grants special Priviledges to either Party as that such a Passe should be sufficient and that there should be no search at Sea where such a Passe is found nisi gravis suspicio subsit so that these Cases must still be Regulat by the Law and Custom of Nations and especially by the Kings Declaration of the War so that these making the Rule the Treaty can make but the exception and therefore the King by the Declaration of the War against the Hâ—llanders gave an expresse Command to make Pryze all Ships belonging to the Hollanders or having in them Goods belonging to the Hollanders or Counterband Goods going to the Hollanders or Navigat by any number of the Hollanders this must stand as the Rule seing there is nothing in the Treaty to alter the same neither doth the Tenor of the Passe not mentioning the Sailers infer any thing because the Sailers can be known of what Nation they are by their Language and it were unnecessar to cause the Swedes Depone upon Oath that they are Swedes but cannot be so well known to whom the Ship and Goods belong and therefore Oath is to be made thereupon and albeit a Passe be found Aboard conform to the Treaty whereby it is provided ne quid ulterius inquiratur in navigium honâ—â— aut homines nulla tâ—nus inquiratur it immediatly follows Quod si gravis aliqua suspâ—cio subsit that there may be seisure even where there is a Passe or if the Passe were old or vitiat or appear not to agree with the Hand and Seal of the places whence it is directed seisure might be made and therefore in this Case the whole Company being Hollanders as is evident by their Language although there had been no suspition of the truth of the Passe they might justly have been seised and confiscat conform to the Kings Declaration neither is it a good Argument that because the Treaty gives leave to have the Master of any Nation that therefore all the Sailers may be of any Nation and therefore if the Company might have been of any Nation there needed no such expression for the Master exceptio firmat regulam in non exceptis which is the more clear that by the Treaty betwixt the King and the King of Spain there is a special priviledge to the â—lâ—ndrians that they shall not be questioned as being Navigat by Hollanders in respect of the Identity of their Language which would never have been Demanded if by the Law of Nations Hollanders the Kings Enemies might have been made use of by any in Amity with him The Lords found that this Swedish Ship being Navigat by the Sailers all or the most part being Hollanders Residenters in or about Amsterdam when they entered this Voyage that the same was a sufficient ground of Confiscation in respect of the Kings Declaration of War and that by the Swedish Treaty there was no priviledge granted to the Swedes as to this matter and therefore Assoilzied from the Reduction having found it sufficiently proven by the Testimonies at Cromarty and whereas it was alleadged that these Testimonies were extorted by holding Swords and Pistols to the Companies Breasts both at Sea and after Landing to make them confess that they and Goods belonged to Hollanders The
old Rescinded Act pro tanâ—o it must be in the same case as Taxation and Maintenance which is ever accounted debitum fundi It was answered that these burdens Imposed by the Rescinded Parliaments are not in the same case with other publick Burdens especially where it is but a particular Act relating to particular persons and Shires without Citation of them for if they had known of this Act they would have petitioned the Parliament that singular Successors might have been excepted as they were in other Acts of this nature The Lords Suspended the Decreet and found that as they were singular Successors they were not lyable David Dick contra Ker. Iune 26. 1668. DAvid Dick as Donator to the Escheat of Ker insists in a special Declarator for payment of a sum due to the Rebel The Defender alleadged Absolvitor because it being a Bond bearing Annualrent it fell not under the single Escheat It was Replyed that Bonds bearing Annualrent are still holden moveable until the first Term of payment of Annualrent and is Disposeable by Testament if the Defunct die before that Term but here the Rebellion was before the date of the Bond and so the sum fell to the Fisk the day it was Subscribed It was answered that the 32. Act Parliament 1661. declares Bonds bearing Annualrent to exclude the Fisk without any exception or limitation The Lords having considered the Act found that it left Bonds bearing Annualrent in the same case that they were formerly and found that before the Term of payment of Annualrent they were moveable Peterson contra Captain Anderson Iune 30. 1668. CAptain Anderson having taken a Ship whereof Peter Peterson was Master and obtained the same declared Prize by the Admiral upon two grounds one that the Ship was sailed a great part of the company being Hollanders then the Kings enemies The other that albeit it was pretended that the Ship belonged to Swedes yet by several presumptions and evidences it appeared that is was but a conveyance and that the Ship truely belonged to Hollanders There is now a Reduction raised of the Decreet and the first ground thereupon Debated and Decided It was alleadged for the Strangers that they being Swedes their case was only to be ruled by the Treaty betwixt the King and the Crown of Sweden by which it is expresly provided that the Subjects of Sweden having such Passes as are exprest in the Articles shall not be Seased or brought up and particularly in bona homines nullo modo inquirâ—tur viz. Where such a Pass is found aboard and the said Pass being here found aboard the Ship was unwarrantably Seased and unwarrantably declared Prize upon pretence of being sailed with Hollanders because that Article takes away all question about the men and so gives liberty to the Swedes to make use of any Mariners they please It was answered that the Reason of Adjudication was most just and this Reason of Reduction ought to be repelled because the Kings Proclamation denuncing the War gives express warrand to sease all such Ships as had any number of Hollanders therein which must stand as the Rule unless the Swedes had by their Treaty a particular exception derogating from that Rule which they have not but on the contrary the Treaty contains an express provision that they may make use of a Hollands Master and not unless he became a Citizen of some City of Sweden and be sworn Burgess thereof but upon the former ground there needed no such Article for Masters and all might thereby be Hollanders And as to the Article of the Treaty concerning no further inquiry there is subjoyned quod si gravis aliqua suspitio subsit in which case notwithstanding of the Pass Seasure might be made but here there was gravis suspitio that the Ship or Goods belonged to the Hollanders the Master and major part of the Company being Hollanders and the Pass mentioning a Ship of an hundred Tuns whereas this Ship was two hundreth Tuns It was answered for the Strangers that the Kings Proclamation could be no Rule to the Subjects of any other free Prince but the Law of Nations or their own Treaties behoved to be the Rule and by the Law of Nations the King could not hinder his Allies of any Commerce or Trade with His Enemies which they were accustomed or free to do before the War except such Acts only wherein they partaked with his Enemies by furnishing provisions of War or Counterband Goods and so the King by no Proclamation could hinder the Swedes to hire and make use of Hollanders which rather weakned then strengthned his Enemies and in this case the making use of Hollanders was necessar because other Sailers could not be had when the Ship was bought and that Article of the Proclamation ought to be benignly interpret that when any Ship carries Hollenders as Passengers the same should be Seased but not when these were Servants and Mariners to other Nations It was answered for the Captain that the Kings Proclamation of the War behoved to be a Rule to the Kings Judges and that it was most consonant to the Law of Nations and it was impossible without the same to know what Ships did truly belong to Allies and that in the Spanish Treaty with the King that priviledge was specially indulged to the Flandrians not to be quarrelled upon the account of Hollanders because of the Identity of their Language which would have been unnecessar if by the Law of Nations all might have so done The Lords Repelled the Reason of the Reduction and found that ground of the Adjudication that the Ship was Sailed with a great part of the Company being Hollanders Relevant alone and that the same was sufficiently proven by the Testimony of the Steirsman and another Witness of the Company and therefore Assoilzied from the Reduction The Minister of Elgin contra his Parochioners Eodem die THE Minister of Elgin pursues his Parochioners for the Viccarage of some Yeards in Elgin which belonged of old to the Canons of the Cathedral Kirk of Elgin and were by them Feued to the Defenders who alleadged Absolvitor because the Yeards being a part of the Canons Portions and in effect their Gleibs had in no time past ever payed Viccarage which is consuetudinar and local both as to the payment and the kinds for in some places Teind Lint and Hens are payed and in others not but the ordinar Viccarage being Stirks Wool Milk and Lamb there is none of these to be had in these Yeards It was answered that no Prescription could take away Teinds upon the forbearance of demanding it by Beneficed Persons who are but Administrators and cannot Delapidat otherwise all Benefices might be destroyed 2ly Lands that have been always Ploughed and so payed Parsonage and becoming Grass are lyable to Viccarage albeit it cannot be proven that ever they payed any before The Lords found the Defense Relevant unless the Pursuer could prove that Viccarage has been payed out of these
are not Counterband but are necessary in some quantity in every Ship for Calsing and by the Treaty betwixt the King and the King of Spain there is an express Article that though Counterband be deprehended in Spainish Ships only the Counterband shall be Prize and not the Ship and Goods It was answered that this alleadgeance was competent and Omitted before the Admiral It was answered that these cases with Strangers are to be Ruled by the Law of Nations and not by peculiar Statutes and Customs The Lords reponed the Strangers to their Defenses as in the first instance and also allowed the Privateer to insist on any grounds for making of the Ship Prize which he did not formerly insist on whereupon the Privateer insisted upon two grounds First Because by the Law of Nations and the Kings Proclamation of War Allies and Neuters must not make use of the Kings Enemies to sail their Ships and therefore the Proclamation of War bears expresly that all Ships shall be seised bearing any number of Men of the Kings Enemies and this Ship had the major part of her Company of Hollanders then the Kings Enemies as is evident by their own Depositions taken before the Admiral 2dly This Ship was not only sailed by Hollanders but the Ship or major part thereof and the Loadning belonged to Hollanders and any pretext that the same belonged to the King of Spains Subjects is a meer Contrivance it being most ordinar the time of the War for the Hollanders to Trade under the name and covert of the Flemish the King of Spains Subjects which appears in this Case by many evidences First Both the Merchant and major part of the sailers by their own confession are Hollanders and they have adduced nothing to be a sufficient probation that the whole ship and Goods belonged to Clepan in Bruges but on the contrair the Skippers first Testimonie at Linlithgow bears that this Ship and Goods belongs to Clepan and Revier which Revier being taken Aboard acknowledges that he was born in Holland but says that two or three years before the seisure he dwelt in Gent and Brussels under the King of Spain and having a Diligence granted to prove his Domicil the time of the War and Capture all that he proves is that in March 1667. he hired a House in Brussels and began to set up there and that sometime before he had lived with his Mother in Gent but proves not how long or that it was his constant Domicil for that was an ordinar contrivance for Hollanders to hire Houses in the Spainish Netherlands and to pretend to be Subjects there but they being Hollanders at the beginning of the War concurring and contributing to the War albeit they had truely removed tempore belli they continued to be the Kings Enemies much less can their taking a House else where sufficiently prove that they totally deserted the Hollanders and concurred not with them in the War it being easie to have Domicils in diverse places 2dly The contrivance is yet more evident in that the Goods were Shipped by Rivier at Fleck in Holland and sailing from thence to Copperwil in Norway and was taken having no Pass from the King of Spain for this Voyage but had a pretended Pass from the Duke of York which albeit it bears relation to the same Ship called Charles the second yet by the Testimonies of the Witnesses it is evident to have been granted two years before this Ship was Built which is an evident cheat and for the Pass from the Governour of the Netherlands it bears but to last for a year and was expired before this Voyage and as for the Pass from the Chamber of Commerce it was granted for a former Voyage from Ostend to France which is clear by the Testimonies which bear also that there could be no Pass gotten for this Voyage because this Ship was lying in Fleck and not in the King of Spains Ports and so the Loading could not be their lying and wanted Oath taken thereupon that it belonged not to the Kings Enemies as is requisite in such Cases It was answered for the Strangers to the first ground of Adjudication that it was no way sufficient First Because the King of Spain being an Allie by a perpetual League his Subjects were not to be regulat by the Kings Proclamations but by the solemn Treaties betwixt both Kings which setting down the causes of Seisure must necessarly import that seisure should be for no other cause then is therein exprest 2dly The Articles bear expresly that any of the Spainish Subjects having a Pass conform to the formula set down in the Articles should be no further troubled which formula requires nothing as to what Countrey the Sailers are of and therefore there can be no seisure upon the account of the Sailers for albeit by the Swedish Treaty the Swedes are allowed to have a Dutch skipper ◠〈◊〉 becoming a sworn Burgess of some Town in Sweden and he residing there from whence the Lords have inferred that the Swedes may not sail with Hollanders and have declared some of them Prize upon that account yet this cannot be exended to the Spanish Subjects in whose Treaty there is 〈◊〉 such thing 3dly By an Act of the Council of England produced it appears that his Majesty gave Order that all Flandrian Ships that were taken should be dismist if there were no other ground of seisure but that they were sailed by Hollanders until his Majesty review the Flandrian Concessions and give further Order and there is a particular Concession to the Flandrians beside this Treaty in regard their Language and the Hollanders is one◠they should not be seised upon the account of being sailed with Hollanders and 〈◊〉 to the other ground the Passes and Testimonies prove sufficiently that the Goods belong to Clepan in Bruges and there is but one Testimony of the Skipper that Revier is Owner which Testimony was taken at Linlithgow the Clerk or Interpreter having Interest in the Caper and the Skippers Testimony being again taken by the Admiral at Leith says nothing of Revier and albeit it did he is but one Witness and any Hollander deserting Holland the time of the War ceases to be an Enemie because the King invited such as would desert his Enemies to come live in England◠so that it is both his Majesties Interest and Intention in any way to weake◠his Enemies by causing their Subjects desert them It was answered for the Privateer that the Strangers could not pretend Right to the Spainish Treaty seing they wanted a Pass conform thereto and that it could not be inferred negative from the Spainish Treaty that seisures should only be for the Causes therein exprest there being no such Article in the Treaty and the Law of Nations and the Kings Proclamation being the Rule of War the Treaties with Allies do only explain or restrain the same and gives exceptions from the Rules for instance the Spainish Treaty makes Counterband
Maybol for the time to the Lord Ochiltrie which came by progress in the Person of Ballimore having then in his Person Barganies Tack so that Ballimores taking that Right acknowledges the Parsons Right and passes from his former Tack unless in his Right he had expresly reserved his former Tack so that neither Ballimore nor these Assigneys can now make use of Barganies Tack it being a certain Ground that the taking of a posterior Tack having a greater Tack Duty or a shorter Term evacuats a prior Tack in that same Person It was answered that the alleadgance is no wayes Relevant Ballimore not having immediatly taken a second Tack but only finding another Tack by progress in the Person of the Lord Binnie to remove that impediment and shun his trouble he purchased Right thereto but never brooked thereby The Lords found that the taking Right to another Tack did not infer a passing from the former Tack unless it were proven that the posterior Tack had a greater Duty or shorter durance and that Ballimore had paid the said greater Duty to Bonar or bruiked expresly by the later Tack June 29. 1669. CAptain having taken at Sea obtained him to be declared Pryze upon this ground that he carried Clapboard which is expresly mentioned as Counterband in the Commission of the Admiral of Scotland given to the Caper and was the same Stile with the Commission Recorded in the Books of Admirality given in the time of War in the year 1628. The Strangers raised Reduction of the Admirals Decreet on this Reason that Clapboard being a general Name comprehending many kinds of Boards that Clapboard could be only understood Counterband which had not a promiscuous use in Peace and War but was instrumentum bellicum carried by the Kings Allies to his Enemies to be Sold to them for assisting of the War which this Loading could not be because it consisted all of Knappel cutted all at three Foot and an half length the proper use whereof is for Barrelis and is no wayes instrumentum bellicum The Lords having given Commission to some of their number to visite the Knappel and to Examine Sea-wrights whereupon they did Examine a number whether this Timber in question was useful for War or Shipping and most Deponed that it was not and some Deponed that it might be made use of to be Pins or Tubs but that it was not ordinarly made use of for Shipping but common Oak which was far cheaper The Lords did also before answer ordain either Party to adduce such Testificats and Evidences as they could from the Admiralties of Neighbouring Nations what was the Custom of Nations whether upon such Timber as this the Ships of Neuters or Allies were made Prize The strangers produced several Testificats one from the Custom-House of Amsterdame bearing that such Timber was not accounted Counterband in Holland and one from the Spanish Admiralty at Ostend bearing that they knew not that by their Custom and the Custom of other Admiralties such Timber was Counterband one from a Deputy who served in the French Admiralty at Dunkirk declaring that in that Admiralty such Timber was not accounted Counterband one from the Kings Auctorney and another Lawer who served in the Court of Admiralty of England bearing that during the War none had been declared Prize upon that account The Privateer produced no Testificats but alleadged that there ought no respect to be had to the Testificats produced it being easie to impetrat such and there should a Commission been direct by the Lords to the several Chief Admiralties of the Neighbouring Nations to express what was their Custom in this Point Notwithstanding the Lords found the Ship Prize as carrying this Clapboard being contained in the Admirals Commission a great part of the most able of the Lords being of the contrary Judgement Earl of Argile contra His Vassals Iune 30. 1669. THe Earl of Argile being Donator to the Forefaulture of the late Marquess of Argile his Father Pursues an Improbation of the Vassals Rights and craved Certification The Vassals alleadged no Certification against their Rights because any Right the Earl had was qualified by the Kings Gift that he should only have Lands paying 15000. pounds and that the rest should be conveyed to the Creditors and the Creditors thereupon claiming the Property of the Vassals as falling within the Forefaulture His Majesty Wrot a Letter Declaring that it was not His meaning by the Gift that the Creditors should have any more Lands conveyed to them then the remainder of the Property belonging to the late Marquess over and above this Earls part and that the Superiority should entirely belong to the Earl and his Successors by which His Majesties Mind and Pleasure is evident that the Earl should only have the Superiority and not the Property of the Vassals 2dly The Vassals offered to produce what Rights they had flowing from the House of Argile but there could be no Certification as to what they had not in respect of the Troubles especially no Certification for want of Confirmation of the Vassals Rights by the King because several of the Vassals continued Loyal to His Majesty during all the Troubles and some of them losed their lives in His Service opposing the said late Marquess himself So that it can never be thought to be His Majesties purpose or pleasure so to restore this Earl the Marquess Heir appearand as thereby to Forefault the Vassals who adhered to His Majesty and who durst not in time of these Troubles have fought Confirmations His Majesties Exchequer being then in the manadgement of these who were in opposition to Him It was answered for the Pursuer to the first that neither by the Pursuers Gift from His Majesty nor by the foresaid Letter there is nothing granted to the Vassals in opposition to the Earls Right but in opposition to the Creditors that they should have no hand in the Vassals Estates Likeas His Majesty by His last Ratification and Charter under the Great Seal produced hath most distinctly and clearly exprest His meaning and pleasure that by the foresaid Gift or Letter His Majesty did only Exclude the Creditors from the Estates of the Vassals but thereby Declares that not only the Superiority and Casualities thereof should belong to the Earl but the Property of all these who had not sufficient Rights from the House of Argile and Confirmations from the King and that the Earl might Intent all Actions competent of Law for that effect It was answered for the Vassals that if their true condition and adherence to His Majesty had been understood His Majesty would not so have Declared and that post jus quaesitum to them by the Kings Gift and Letter no posterior Declaration impetrat from His Majesty should prejudge them at the least they humbly craved that the Lords according to their former Interlocutor would Represent the Case to His Majesty that His Pleasure might be known and that His Majesty might interpose with my
the Church by that Disposition and was generally cryed out against by all Persons yet una hirundo c. And as for Pargilleis Case the Lords perused the whole Debate and Testimonies and found that Pergilleis Lived near a Mile from Calder and that being an old Guttish Man he was accustomed to be helped to and from his Horse and that he Rode to the Town but that he Lighted then and walked freely through the Mercat and up a Brae to my Lord Tarphichans House and returned again to his Horse without any help either by the hand or otherwise and regarded not that he was helped up and down Stairs or to and from his Horse which the Law doth not require but only the going freely from the Entry of the Town to the Mercat place and back again unsupported The Lords did also find none of the private acts alleadged upon Relevant to prove Health or equivalent to going to Kirk or Mercat and that there was no necessity to condescend on particular Diseases Ioachim Burnmaster contra Captain Dishingtoun Iune 29. 1671 CAptain Dishingtoun having obtained a Decreet before the Admiral Adjudging a Ship taken by him at Sea the time of the late War with Holland whereof Ioachim Burnmaster was Master the said Ioachim raised Reduction of the said Admirals Decreet on these Reasons that his Ship and whole Goods did belong to the Subjects of Sweden his Majesties Allies and who had a particular Treaty with the King bearing expresly that no Person should be Seised who had a Swedish Pass in the Terms particularly exprest in the Treaty Which Pass the Pursuer had and produced when he was taken and yet he was declared Prize upon pretence that three of his Company were Hollanders albeit the Treaty bears expresly that where such a Pass is found ulterius nihil exigatur in bona aut homines nullo modo inquiratur and upon pretence that the Oaths of the Master and Company were contrare to the Pass and proved that there were other owners then these in the Pass and other Goods viz. 15. Hogs-heads of Wine and a quantity of Wine and Brandy wine and Paper and that the Ship in question was not then Bought by the Swedes nor did not go to or from the parts mentioned in the Pass albeit none of these saids points be Material nor did infer that the Ship or Loading or any part thereof did belong to the Kings Enemies but did belong to the Swedes his Allies and Confederats so that albeit they had had no Pass or an unformal Pass their Goods could not be taken from them there being no Article in the Treaty declaring that the not having a full and formal Pass should make such Ships Prize but only that the having thereof should keep them from all question or inquiry The Defender alleadged Absolvitor because the Decreet of Adjudication was justly and Warrantably given for Contrivances the time of the War being most ordinar the Dutch did frequently palliat their Trading under the pretence of the Kings Allies and in this Case it is evident that the time of the Pass this Ship was in Holland of a Dutch Build belonging to an Hollander Residing there and no pretence of Buying the same by a Swede for a long time after as appears by the vendition produced which does not bear that the Ship was sold to any Swede or for their use but to a Swedish Factor in Holland without mentioning to whose use and so is justly suspect to have been for an other Dutchmans use especially being found Navigable with three Dutchmen in the Company and no Swede hath ever yet declared upon Oath that this Ship and Goods belonged to them for by a Certificat of the Swedish Chamber of Commerce produced that two Swedes did declare that they intended to Buy a Ship in Holland called the blew Lilly and yet the Pass of the same date bears that they swore that the blew Lilly belongs to themselves and no other and by the vendition the Name of the Ship was not the blew Lilly so that all hath been but a Contrivance and that there is nothing produced that necessarly evinces that the Ship and Goods belonged to the Swedes only and seing the Pass is so palpably false in all the substantial points required by the Treaty and by the Oath of the Pursuer himself he cannot cloath himself with the Treaty which he hath so grossly transgressed nor hath he adduced sufficient proof that the Ship and Goods belonged to the Swedes And whereas it is alleadged that the being Sailed with Hollanders is no ground of Seisure by the Treaty the same is opponed which in the next Article to that alleadged upon for not enquiring in the Men and Goods bears that Seisure shall not be made where such a Pass is nisi gravis suspitio subsit and there could be no better ground of suspition then that the Master when he was taken acknowledged the Contents of the Pass not to be true or conform to the Treaty and that a considerable part of the Company were Dutches and as for any Letters produced they are impetrate since the War upon misinformation The Lords adhered to the Decreet of Adjudication and Assoilzied from the Reduction and found the verity of the Pass canvelled by the Testimonies of the Skipper and Company and the Certificat and that most of the material requisits in the Passe were wanting and no sufficient Evidence that the whole Ship and Loadning did truely belong to the Swedes Beidmen of the Magdalen Chappel contra Gavin Drisdail Iune 30. 1671. IAnet Rud having mortified an yearly Annualrent of a Merk Scots out of a Tenement of hers to the poor Beidmen of the Magdalen Chappel they pursue Gavin Drisdail now Heretor of the Tenement for Poinding of the Ground Who alleadged Absolvitor because he has bruiked the Tenement free of that Annualrent for more then fourty years so that the Right thereof is prescribed It was answered that prescription runs not against the Poor and things mortified for pious uses 2dly They are in the same condition with Minors having Overseers chosen yearly 3dly The years of prescription must be accompted abating the times of Pestilence and War when there was no Session It was answered that prescription was the great security of the Leiges and hath no exception by the Act of of Parliament but only Minority and neither by the Civil Law or our Custom is the time of prescription compted per tempus utile but per tempus continuum in regard of the length of the longest prescription The Lords Sustained the Defense of prescription and Repelled the Replyes Brody of Lethim and the Laird of Riccartoun contra The Lord Kenmure Iuly 1. 1671. BRody of Lethim as having Right from Riccartoun having several years agoe obtained Decreet against the Tennents of the Mains of Kenmure thereafter upon a motion for the Viscount of Kenmure the Decreet was stopped and now the Pursuers desire out their Decreet It
Discharges of his Rent and also Discharges of publick burdens unless by writ or his Masters Oath he prove they were not allowed December 2. 1664. Veatch contra Paterson Presumption that Tickets of publick burdens were allowed to Tennents in their Rent was sustained to elide the Tennents pursuit thereon for payment thereof albeit his Tack bear a clause to relieve him of all publick burdens Here the Tennent left the Land several years before the pursuit and never did any diligence to get these allowed but it was sustained by the Masters Oath that these were not allowed December 20. â—664 Paterson contra Veatch Presumption of a Wifes Warrand to borrow a smal sum and impignorat a Bond therefore was sustained she having the Bond in her custody February 4. 1665. Paterson contra Pringle PRIVILEDGE of Burghs to arrest persons of find Caution of answer as Law will was found to extend to the Pear of Leith as a part of the Burgh Royal of Edinburgh its priviledge and if done by the Water Baillie but not if in the Burgh of Batony of Leith or by the Baron Baillie Ianuary 18. 1663. Hamiltoun contra Mitchel and Keith Priviledge of Burgh was â—ound not to extend to Incarcerat unfreemen found within their Burgh till they find Caution as Law will albeit by a former Decreet they were Decerned to desist from Merchandice competent to free Burrows and that thereby they might only seize upon these Goods by the Act of Parliament Ianuary 30. 1663. Town of Linâ—â—thgow contra Borrowstounness PROBATION of immemorial possession or Custom was not found instructed by a Decreet mentioning a former Decreet wherein the same was proven unless the Testimonies were extant or produced December 13 1664. Bishop of the Isles contra Hamiltoun Probation of a Disposition being onerous to exclude â—ucrative Succession and absolvitor thereon in a Process was not found sufficient as repeated from another Decreet not being de recentâ— except it had been after a long time when Witnesses were dead and in that case their Testimonies if extant behoved to be seen again Ianuary 6. 1665. contra Edmonstoun of Carden Probation of a Defense was admitted partly by Oath what was the Cause of the Bond and partly by Witnesses that the condition thereof was contraveened Iune 15. 1665. Aikman contra Probation of the Delivery of a great bargain of Victual was not inferred from the Declaration of a person intrusted by the Debitor to receive it seing there was a time limited to obtain his Declaration after which his condition and trustinesse might change and could not perpetually oblige the Intruster Iuly 18. 1667. Executors of the Earl of Dirletoun contra Duke of Hamiltoun Earl of Crawfoord and others Probation was found to be according to the most pregnant Testimonies though others Witnessed a greater quantity this was in a matter old and in the estimation of â—osse November 23. 1667. Lord Iustice Clerk contra Laird of Lambertoun Probation by one Witness and the Oath of the Pursuer in supplement in favours of a party who had been absent â—ut of the Countrey in the Kings Service pursuing for his share of a Ship and Goods against the remnant Owners medled with by them in Anno 1638. was sustained by the Admiral but Reduced by the Lords and the Pursuer ordained to adduce farther probation February 12. 1668. Captain Strachan contra Morison PROCESSES being Dispute to the full in presentâ—a The Lords by Act of Sederunt ordained the Clerks not to give up the same or any Process Dispute at full though there were no Interlocutor thereon But ordained it to be keeped till the Dispute were advised and Interlocutor pronunced Iune 6. 1665. Town of Edinburgh contra Thomson PROMISE to relieve a Cautioner who relieved the promisers Goods of poinding was found not probable by Witnesses though within an hundred pounds where the promiser was dead Iuly 3. 1668. Donâ—ldson contra Harrower A Promise by a Wife after her Husbands death never to quarrel a Tack of Liferent Lands which was in Writ for several years was found to exclude her and not to be as a verbal Tack valide only for a year but as pactum de non repugnando Ianuary 8. 1670. Scot contra Murray A PRO-TVTOR being an Overseer intrometting with the Pupils Bondâ— was found only lyable for the whole Bonds received by him though he uplifted the annualrent of a part of them only and for the annualrent thereof but not for any other means or Estate of the Defunct because there was no antecedent Law or Rule to oblige him but an Act to Sederunt was ordained to be made and published that all persons â—edling so in the future should be lyable both for intromission and omission as Tutors Iune 10. 1665. Swinâ—oun contra A PRYZE Ship was found not justly taken belonging to a Prince holding of the Kings Enemies unless he contribuâ—e to the War Ianuary 4. 1667. Harison contra Laird of Ludâ—uhurn A Prize Ship was liberate belonging to Neuters not the Kings Enemies nor Alies albeit carrying Counterband-Goods unless it were proven that the War was known at the place they â—oâ—sed from when they loused and that Acts of Hostility and declaring Prizes in Neighbouring places was not sufficient without publication of the War or knowledge thereof Iuly 23. 1667. Iurgan contra Captain Logan A â—rize Ship was found justly adjudged as carrying Counterband-Goods albeit a Swedish Shâ—p and by the Swedish Treaty such Counterband-Goods were allowed to the Sweds which was only understood they being the gâ—owth of their own Countrey Iuly 27 and 31. 1667. and November 6. 1667. Packman contra Captain Allan A Prize being taken pursued by two Privateers was â—ound equally to be divided betwixt both and not according to the proportion of their Guns seing the least and lightest of the Frigots did Seaze when the other was at a considerable distance and his concoâ—rse and conâ—ortship though made without consent or special Commission from the Owners being both in precinctâ— belli and profitable for the security of either party February 7. 1668. Cuningskie contra Captain Mastertoun Prize Ships being Questioned as having in them the product of Coâ—nterband-Goods carried in to the Kings Enemies in the same Voyage from which the Ship was returning was found not sufficient by the Tenor of the Admiral of Scotlands Commission bearing Warrant to seaze if the product of Counterband-Goods in that Voyage were found but by the Law and Custome of Nations and therefore the Lords granted Commission to â—ry the Custome of Holland France England and Spain February 21. 1668. Packman contra Allan A Prize being taken upon probable grounds and adjudged by the Admiral the Kings tenth part and Admirals fifteenth part being payed and the Goods sold the Decreet of Adjudication being Reduced the privateer was found lyable but for the value that the Goods might have given by rouping if they had been preserved and sold when and where they were adjudged February 24. 1668. Captain Mastertoun
contra Strangers of Oâ—â—end but the Kings 10th part and Admirals 15th part were not allowed A Pryze Ship of Hamburgh taken as carrying Counterband-Goods to the Daâ—es after Acts of Hostility betwixt the King and them was liberate because she was taken before the Proclamation of the War against the Danes but the Captain was found to have probable Ground to Seaze and was found only lyable for what profite he had made of the Ship and Goods unless he had been thâ— culpa by the spoiling or mis-appryzing thereof February 25. 1668. Merchants of Hamburgh contra Captain Disâ—ingtoun A Pryze Ship belonging to the Sweds was found Warâ—antably taken because she was Navigat with Hollanders the Kings Enemies contrary the Kings Proclamaâ—ion of War albeit they hâ—d a pass conform to the Swedish Treaty wherein it is permitted to the Sweds to make use of Hollanders as Masters he becoming a sworn Burges of their Town without mention of what Nation the remnant company mighâ— be of February 25. 1668. Owners of the Ship called the Castle of Riga contra Captain Seaâ—oun A Prize Ship was found justly adjudged because a great part of the company were Hollanders in respect of the Kings Proclamation of War ordaining Ships to be taken that had in them any number of men or goods belonging to Enemies albeit the Ship was a Swedish Ship and had a pass conform to the Swedish Treaty which bear that such a pass being found there should be no further inquiry in men or goods â—isi gravis suspitiâ—o subsit seing that Treaty bear a liberty to the Sâ—eds to have a Hollands Master becoming a sworn Burges of any Town of Sweden and had no such priviledge for the mariners Iune 30. 1668. Paterson contra Captain Anderson A prize Ship was found justly taken being insisted against on several grounds as having a number of the Kings Enemies the Hollanders Sailers being only proven to be three and the company nine as having been two years with the Kings Enemies Merchandizing but not in the War and by having a small parcel of Tar as Counterband in the same Voyage upon all joyntly the Lords declared but not upon any point alone Iuly 9. 1668. Captaâ—â— Allan contra Parkman In prize Ships competent and omitted as a particular custom of Scotland was not sustained against the strangers but they were found to have the benefite of the Law of Nations Iune 15. 1669. Loyson contra Laird of Ludâ—uharâ— and Captain Wilson A prize Ship declared as carrying Counterband having on Board Oak cutted at three foot and an half for making Barrels in respect the Admirals Commission bear Clapboard as counterband though Testimonies from the Admiralities of England Holland and Flanders were produced that such Timber was not accompted counterband a great number of the Lords being of a contrary judgement Iune 29. 1669. Captain contra A prize Ship being in question which being alleadged to be fraughted from Norway to London with Timber by the Kings proclamation warranding Ships even of his Enemies Countreys to be imployed for bringing Timber for the Rebuilding of London they getting certificates and passes from the Duke of York the Ship having on Board 1500. Dails not belonging to the London Merchants the same was found sufficient to confiâ—cate the Ship and these Dails but not to confiscate the Cargo belonging to the English Merchands if he could produce a pass conform to the Proclamation and the Kings Letter bearing that he was sufficiently informed that this Ship had a valide pass and therefore ordering her to be restored was not found Relevant to liberate the Ship or Merchants Cargo without production of the pass but the Letter was understood to be â—alvo jure not proceeding upon the hearing of parties albeit the Duke of York did asset that he had formerly given a pass to that Ship Iuly 13. 1669. Captain Wood contra Neâ—lson here the Skippers Testimony alonâ— was received to prove against the Owners A prize Ship being adjudged by the Admiral and the Decreet being quarrelled because the Skipper had a pass declaring the Ship and Goods wholly belonging to the Sweds the Kings Allys the pass was conform to the Swedish Treaty which clears expresly that where such passes are â—eqâ—id amplâ—s exigatur in bonâ— aut homines nullo modo inquiratur The adjudication was sustained in respect that the pass by the oath of the Skipper and company was found to be a contrivance and there was no sufficient probation that the Ship and Goods belonged to the Sweds and that the Treaty bears si qua gravis suspâ—â—io subsit that seazure may be made Iune 29. 1671. Burrow contra Captain 〈◊〉 A PVPILS person was found to be keeped by her Mother who was Widow till her age of eleven years and then by a Friend of her Fathers side but not by the Tutor who was nearest to succeed February 6. 1666 Laird of Dâ—ry contra Relict and Daughter of his Brother RATIHABITION Vide Clause Ianuary 9. 1663. Mason contra Hunter RECOGNITION committed by a Defunct's alienation was not stopped upon the priviledge of Minority quo minor non tenetur placitare c. February 19. 1662. Lady Carnagy contra a Lord Cranburn Recognition was not clided because as importing ingratitude which is criminal it was purged with the death of the Committer but was sustained against his Successor Ibidem Recognition was found to be incurred by alienation of Ward Lands albeit the Seasine taken was without the Acquirers Mandat subscribed but by a general Mandat out of the Chancellary seing it was taken by his Grand-father giver of the Alienation and albeit the Disposition bear only â—ailing of the Disponers Heirs of his Body seing it had a Warrand for seasing this party de preseâ—ti nominatim nor was it reduced upon Minority to annul the Seasine and shun the Recognition Ianuary 30. 1663. Inter eosdem Recognition was incurred by giving an Infeftment base to a Grand child not being then alioqui successuruâ— of Ward Lands though Taxed Ward and though granted to Heirs and Assigneys which was only understood that the Disposion Charter or Precept before Seasine might be assigned but not after nor was it respected that the Seasine as not Confirmed was null nor that it implyed a tacit condition that the Superior consented nor that the Giver was an illiterat person and the case dubious here the case was favourable for the Donatar who was the Disponers eldest Daughter and who was past by and the second Daughters Heirs though strangers were preferred in all February 5. 1663. Inter eosdem A Donatar of Recognition granting a Precept to a Vassal in the Lands falling in Recognition acknowledging that Vassals predecessors Right and his own in the ordinary Terms of a precept of clare constat albeit the precept did also bear in obedience of Precepts out of the Chancellary yet the same with the Seasine following thereon was found to exclude the Donatat and all deriving Right from him thereafter