Person Substitute his whole Debt but quoad valorem of what the Substitute had obtained by the Substitution And therefore found the Sums to belong to Andrew as Heir Substitute and yet with the Burden of the Compensation in the same Case as was Competent against Malcolm himself By which Decision it follows that the Mothers Substitution to Malcolm was Effectual for which there is no reason but the Error was in the first Concoction for this Sum should have been found a pure Donation by the Mother not only in respect of her Liferent reserved which she past from but in respect of the Substitution which she could not pass from being jus tertij Earl of Kinghorn contra Laird of Udney Eodem die THe umquhil Earl of Kinghorn having granted a Wodset to the umLaird of Vdney he by his Missiveâ— acknowledged the Sums to be satisfied and obliged him to grant a Renunciation whereupon the Earl of Kinghorn pursues this Vdney as representing his Father to grant Renunciation and Procuratory of Resignation and condescended upon the passive Titles thus that umquhil Vdney after the Receipt of the Sums contained in the Wodset had Infeft the Defender in the Estate of Vdney reserving to himself a power to alienat and Dispone after which Infeftment this Missive is subscribed acknowledging the Receipt of the Sums of before and thereupon alleadged first That the Father was oblieged by the Contract of Wodset upon payment of the Sums to Renunce and Resign in prejudice of which Obliegements he had Disponed his Estate to the Defender who was alioqui successurus and so as lucrative Successor is oblieged to grant the Resignation 2ly The Letter obliging the Father to grant Resignation albeit it be after the Infeftment yet seing there is a power reserved to the Father to Dispone his Obligement must oblige the Son It was answered that there was nothing before the Defenders Infeftment to instruct payment the Letter being after and no Obligement therein could burden him thereafter unless his Father had Disponed or had given a Security out of the Estate conform to the Reservation The Lords found this passive Title new and extraordinary therefore moved to the Pursuer to alter this Libel and Libel therein a Declarator of Redemption and to conclude the same either with a Reduction or Declarator for declaring that the Wodset Right being acknowledged by the Wodsetter to be satisfied might be declared Extinct in which case there needed no Resignation or otherwise might conclude the Defender to grant Resignation and the Defender thereupon Renuncing to be Heir the Pursuer might adjudge and thereupon be Infeft But others thought that hardly could a Right be adjudged which was satisfied and extinct The Lords referred to the Pursuers choise vvhich of the vvayes he thought fit Iean Cuningham contra Laird of Robertland Iuly 4. 1666. JEan Cuningham as Donatrix to the Escheat of umquhil Sir David Cuningham of Robertland pursued general Declarator against his Son who alleadged Absolvitor because the Horning was null seing the Charge and Denunciation was only at the Mercat Cross of Edinburgh whereas by the Act of Parliament 1597. c. 294. all Hornings Execute against Persons within the Realm dwelling within Bailleries or Stewartries should be Execute at the head Burgh thereof Ita est umquhil Robertland had his Dwelling-house at Robertland within the Baillerie of Cuningham albeit for a time he was out of the Countrey and was a Prisoner of War for the King The Lords Repelled the Defense and sustained the Horning and found that the Act of Parliament met it not seing neither the Person Denunced was within the Realm nor dwelt within the Baillerie at that time but had remained several years in England Hallyburton contra Hallyburton Eodem die HALLYBURTON pursues a Reduction of an Infeftment granted by by his Father upon his Death-bed to his Sisters who alleadged absolvitor because he had consented to the Disposition in so far as he had Subscribed Witness thereto and if need beis offered to prove that he had read the same It was answered non relevat because the Subscribing as Witness relates only to the verity of the Parties Subscription and nothing to the matter therein contained so that whether the same was Read or not it can import no Probation The Lords found the Defense Relevant reserving to themselves to consider what the naked Subscription without the Reading of the Writ should work in case the Reading thereof were not proven Earl of Hume contra His Wodsetters July 5. 1666. THE Earl of Hume pursues certain Wodsetters to Compt and Reckon for the Superplus more then their Annualrents conform to the late Act between Debitor and Creditor Who alleadged first Absolvitor because the Reversion produced is null not being Registrat conform to the Act of Parliament 1555. c. 29. Ordaining all Reversions to be Sealed and Subscribed by the Parties own hand or a Notar which shall make no Faith if it be not Registrat It was answered that that Act of Parliament was in desuetude not only upon the Point of not Registration but want of Seasine otherwise the Act of Parliament 1617. Anent the Registration of Seasines had dot been necessar The Lords Repelled the Defense and found the said old Act of Parliament to be in desuetude One of the Defenders further alleadged that the Rights of these Reversions are prescribed because they were not pursued within the 13 years appointed by the Par. 1617. c. 12. It was answered that the Pursuer or his Predecessor were Minors during the space of 4 or 5 years of the said 13 prescriptio non curit contra minorem It was answered for the Defenders that in this part of the Act there is no exception of Minors albeit in the former part of the Act anent the 40 years Minority be expresly excepted exceptio firmat regulam in casibus non exceptis especially seing Reversions being but pacta de retro vendendo and so Bonds were prescribed by the old Act of Parliament so the addition of 13 years was ex mera gratia and ought to be strictly interpret The Lords did also Repel this Defense and found that the 13 years run not against Minors It was further alleadged for one of the Defenders that the Reversion made use of against him was since the Act of Parliament 1617. and not Registrat and so could not operat against him who is singular Successor to the Granter thereof The Pursuer Replyed that before the Defenders Right he had used an Order of Redemption and had Execute a Summons of Declarator whereby res fuit litigiosa and no Right granted thereafter can prejudge the Pursuer The Lords found the Reply Relevant to elide the Defense Laurence Scot contra The Heirs of Line of Auchinleck Eodem die LAurence Scot pursues the Daughters of umquhil David Boswel of Auchinleck and the Lord Cathcart and the Lairds of Adamton and Sornbeg for a thousand merks adebted by him to the Defunct The Defenders
thought to be Creditor in the same Clause The Lords found the conception of the Clause that the Brother by falling now Heir was excluded seing it was clear by the meaning of the Defunct that his Heir should have his Lands and his Bairns of his second Marriage should have though but one 4000 merks but here the Heir of the first Marriage was never served Heir They also found that the Portions of the Children being to an uncertain day and not conceived to their Heirs or Assigneys that they dying before that day had no right to the Stock but only the Annualrent medio tempore so that the Stock accresced to the surviving Children as if the Defuncts had never existed and that their Assigneys or Creditors could not have affected the same and so found the Brother had no right as nearest of Kin to the two deceasing Children not attaining the Age mentioned in the Contract William Stewart contra Stewarts Ianuary 18. 1665. WIlliam Stewart pursues a Poynding of the Ground of the Lands of Errol upon an Infeftment of Annualrent granted to his Grand-Father by the Earl of Errol by his Bond and Infeftment following thereupon in which Bond there were Cautioners the Annualrent was for a Sum of 7000 merk and a Sum of 8000 merk Compearance is made for the Pursuers Brothers and Sisters who alleadged that as to the Sum of 7000 merks it became moveable and belongs to them as nearest of Kine In so far as their Father made Requisition for the same It was answered the Instrument of Requisition is null and being disconform to the Clause of Requisition in respect that the Original Bond was to the Husband and Wife the longest liver of them two in Conjunctfee and their Heirs c. And the Requisition bears expresly That if the Husband or his Heirs required with consent of the Wife then the Debitor shall pay ita est the Instrumenet bears no consent It was answered that albeit some Points of the Requisition were omitted yet seing the mind of the Defunct appears to take himself to his Personal Right and consequenly to prefer his Executor to his Heir it is sufficient The Pursuer answered non relevat because every Intimation of the Defuncts Intention is not enough but it must be haili modo and the ground whereupon the Sums become moveable is because the Requisition looses and takes away the Infeftment and therefore if the Requisition be null the Infeftment is valid and he Bairns can never have access The Lords found the Requisition null and preferred the Heir Stewart contra Stewart Ianuary 19. 1665. IN the foresaid Cause it was further alleadged for the 8000 merk that it was also moveable because as to it there was no Liferenter and the Fear himself did require It was answered for the Children that the Requisition is null because it mentions not the production of a Procuratory nor the production of the Right it self 2ly The Requisition is made to Bogie as Cautioner for the Earl of Kinnoul whereas he was Cautioner for the Earl of Errol granter of the first Bond. It was replyed oppones the Requisition bearing That the Procurators power was sufficiently known to the Notar 2ly non Relevat unless the Person required had called for the Procuratory or Right and had been refused 3ly The Procuratory is now produced with the Right and the Defunct acknowledged the Procuratory and Right because he raised horning thereupon The Lords sustained the Requisition and found the Sum moveable and preferred the Bairns thereto Shaw contra Lewens Eodem die WIlliam Shaw being a Factor at London and dieing there and having Means both in England and Scotland There falls a Competition betwixt his Executors nuncupative in England and his nearest of Kine Executors in Scotland Anna Lewens Executrix confirmed in England produces a Sentence of the Court of Probat of wills in England bearing That upon the Examination of Witnesses that Court found that William Shaw did nominat Anna Lewens his Executrix and universal Legatrix And that being asked by her what he would leave to his friends in Scotland He declared he would leave her all and them nothing because they had dealt unnaturally with him It was alleadged for the Defuncts Cusigns Executors Confirmed in Scotland that they ought to be preferred because as to the Defuncts Means and Moveables in Scotland the same must be regulat according to the Law in Scotland where a nuncupative Testament hath no use at all and albeit a Legacy may be left by word yet it cannot exceed a 100 lib. Scots It was answered that as to the Succession the Law of Scotland must regulat so that what is Heretable cannot be left by Testament though made out of Scotland As was found in the Case of the Successors of Col Henderson dying in Holland and in the Case of contra Meldrum yet as to the Solemnity of Acts to the Law and Custom of the Place where such Acts are done takes place as where an Act is done in Scotland albeit it be only probable by Writ or Oath of Parties yet being done in England it is probable by Witnesses though it were of the greatest moment and though the Law of Scotland in Writs of Importance requires the Subscription of the Partie before Witnesses or of two Nottars and four Witnesses yet Writs made in France and Holland by the Instrument of one Nottar are valid so here there being no difference from the Law of Scotland which always preferres Executors nominat before nearest of Kin and the difference only as to the Solemnities and manner of Probation that there it may be proven by Witnesses there was a Nomination and here only by Writ The Lords having considered the Reasons and former Decisions preferred the Executors confirmed in Scotland for they found that the Question was not here of the manner of Probation of a Nomination In which case they would have followed the Law of the Place but it was upon the Constitution of the essentialls of a Right viz. A nomination which albeit it were certainly known to have been by word yea if it were offered to be proven by the nearest of Kin that they were Witnesses thereto yet the Solemnitie of writ not being interposed the Nomination is in it self defective and null in substantialibus Lord Lour contra Ianuary 20. 1665. IN a Process for making arrested Sums furth-coming two Arresters viz. my Lord Lour and another Competing It was alleadged for Lour that the first Arrestment is null because the Partie was out off the Countrey when it was only made at his dwelling house which is not Legal seing all Summonds Intimations Premonitions Requisitions and all Denunciations against Parties out of the Countrey must be by Letters of Supplement from the Lords Execute at the Mercat Cross of Edinburgh and Peir and Shore of Leith So must Arrestments against these who are out of the Countrey be there Which the Lords found relevant and preferred the second Arrestment Personal
the Lords thought would operat but had not the occasion here to decide it Iohn Scot contra Sir Robert Montgomery Iuly 12. 1666. JOHN Scot pursues Sir Robert Montgomery as vitious Intrometter with the Goods and Gear of Sir Iames Scot of Rossie to pay a Debt due by Sir Iames to the Pursuer The Defender alleadged absolvitor because any Goods he Intrometted with were Disponed to him for Onerous Causes by the Defunct and delivered conform to an Instrument of Possession produced It was answered that the Disposition bears Horse Neat Insight Plenishing and all other Goods and Gear which cannot be extended to any thing of another kind nor of greater value as current Money Jewels Silver-plate Chains c. which never past by such general Clauses unless it be specially Disponed It was answered that albeit there had been such Moveables and the Defender had Intrometted therewith though another having a better Right might Evict the same yet the Defender had a probable Ground to Intromet which is sufficient to purge this Odious passive Title The Lords found the Disposition and Delivery Relevant to purge the Vitiosity Normand Livingstoun contra Lady Glenagies Iuly 13. 1666. NOrmand Livingstoun having appryzed the Lands of Glenagies pursues the Tennents for Mails and Duties wherein the Lady compeared aud alleadged that she ought to be preferred because she is Infeft in a Liferent in the Lands by her Contract of Marriage It was Replyed that the Lady and her Husband for all Right that either of them had had given a Right to their Cautioners to uplist the Mails and Duties of the Lands in question for payment of Debts and this Debt particularly whereon this Appryzer proceeds with power also to the Cautioners to Dispone any part of the Lands for payment of the Debts which the Lady Ratified Judicially and which now Excludes her from hindring any of these Creditors to get payment It was answered for the Lady first That this Right was but a Factory or Commission and so Expyred by the Lairds Death 2ly It was only in favours of the Cautioners for their Relief but the Creditors had no Interest to alleadge thereupon 3ly The Cautioners were never Distrest and it was a mistake being to them as Creditors in the Sum not being so in effect The Lords having considered the Commission and that it buir not only the Lady to consent but for all her Right to grant Commission and that not only it was in favours of the Cautioners in case of Distress but also in favours of the Creditors bearing to be for payment of the Creditors Therefore they found the same Relevant against the Lady to exclude her Infeftment ay and while the Debts were payed But this occurred to the Lords that if the Lady could condescend that by the Creditors or Cautioners fault in not making use of this Commission the Laird was suffered to continue in Possession so that if they had used Diligence the Debts would have been payed in whole or in part and the Ladies Liferent disburdened pro tanto they would find the same Relevant Patrick Keith contra Laird Lesmore Troup and others Iuly 14. 1666. PATRICK Keith having Right of Wodset granted by the Earl of Marischal pursues a Reduction against the Laird of Lesmore of a posterior Right granted by the Earl to him Which Right was Disponed to Muiresk who was Infeft and Dispon'd to Troup who is present Heretor who being all Called and Litiscontestation made and the Cause concluded at the Advising thereof it was alleadged for Troup that Muiresk was dead and there could be no advising of the Cause till some Representing him were Called for as in initio there could be no Process against Troup the present Heretor till Muiresk his Author were Called So neither can there be any procedor now till some Representing him be Called It was answered the Pursuer declares that he Insists against Lesmores Right principaliter against which only the Reasons are Sustained and as for Muiresk and Troups Rights they will fall in consequentiamâ— The Lords found that the Process behoved to be Transferred against Muiresks appearand Heir before it could be advised For as the declaring that the Pursuer Insisted principaliter against the first Right would not have been Relevant ab initio seing the Law allows all mediat Authors to be Called that they may defend the Right whether and Reasons be Libelled against their Rights or their Authors which comes in the place of the old Custom of sisting Process until the Defenders Warrand were Called and Discust So every Author has alike Interest to Object against the Reasons although Libelled principaliter against the first Authors Right But the Lords declared that seing the Defender made this unnecessar delay they would be more favourable in drawing back the Reduction ad litem motam aut contestatam Sharp contra Glen Eodem die IN a Competition betwixt two Compryzers It was alleadged that the Pursuer who Insisted for the Mails and Duties his Appryzing was extinct by Intromission within the Legal Which was offered to be proven by his Pursuers Author his Oath It was answered that his Authors Oath could not be Received against a Singular Successor standing now Infeft for as the Cedents Oath is not Receivable against the Assigney in personal Rights much less is the Authors Oath against the singular Successor in real Rights It was answered that before this Pursuers Right res fuit litigiosa in so far as the Pursuers Author having before pursued Mails and Duties in that Process the Defender offered to prove by his Oath that the Appryzing was satisfyed whereupon litiscontestation was made whereby res fuit litigiosa and no posterior Right could prejudge the Defender Which the Lords found Relevant and ordained the Authors Oath to be taken Fountain and Brown contra Maxuell of Nethergate Eodem die BRown as Heir to Mr. Richard Brown who was Heir to Thomas Brown pursued for exhibition and delivery of a Wodset Right granted in favours of Thomas Wherein the Lords having sustained Witnesses to be admitted to prove not only the having of the Writs since the intenting of the Cause but the having them before and the fraudful putting them away which ordinarly is only probable by Writ or Oath unless evidences of Fraud be condescended on in respect the matter was ancient and the Pursuer had long lived in England now at the advising of the Cause severall of the Witnesses were found to Depone that the Defender before the intenting of the Cause not only had such a Wodset Right but was dealing to get the same conveyed in his own Person which importing Fraud The Lords would not absolutely decern him to exhibite but found that he behoved docere quomodo desijt possedere or otherwayes produce and therefore ordained him to compear that he might be interrogat and condescend upon the particular Writs Thomas Ogilvy contra Lord Gray Iuly 17. 1666. THomas Ogilvie pursues the Lord Gray as behaving himself
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
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 not