Bairns 18000 Merks after his Decease Quaeritur The Heir being served will there be a Confusion as to his Debt and Provision 2do If he may have Action against the Executors for it as Heir and Creditor 3tio If he succeed to his Father in Land-Estate though the Money was not employed will not the Obligement be satisfied pro tanto 4to Will the Bairns come in pari passu or must the Heir be satisfied in the first place out of the Moveable Estate Coals A Woman being Infeft in Lands in Liferent cum Carbonibus Carbonariis Quaeritur If she may win Coal where there was none before in order to Selling Ratio Dubitandi That usus fructus est jus utendi salva rei substantia and the Coal usu consumitur And being digged non renascitur It is thought therefore that where there was no Coal before The Liferenter cannot break Ground in order to Selling. Quaeritur If the Liferenters at least may Win Coal where there was no going Coal before in order to their own use and for their Fire Refounding any Damnage that may be by breaking of the Ground Cogitandum Where there is a Coal going Quaeritur If the Liferenter may continue to Work and Sell Answer It is thought for the Reason foresaid the Liferenter cannot Sell but may claim by the said Clause to have as much Coal as may serve for the Liferenters use only unless it be expresly provided that the Liferenter may Win and Sell as the Fiar might have done If the Liferent be not constitute so clearly in the Terms foresaid and it be only provided that the Liferenter shall Liferent the going Coal Quaeritur If the Liferenter may have the same benefite of the Coal as the Fiar might have had both for the Liferenters use and for Selling providing that the Liferenter use the same as bonus Vir and in the same manner as was in use formerly and do not any thing of purpose to the prejudice of the Fiar putting in too many Colliers or otherwise As there is quasi Vsus-fructus of Money if it ought to be so of Coal and what is Win should be valued and the price should be valued to the Liferenter in Liferent and in Fee to the Heretor To consider if this case has occurred elsewhere in the case of Sylvae caeduae Collation BY Contract of Marrriage the Husband is obliged to provide the Heirs of the Marriage therein specified But there is a Clause subjoined That if there be only Daughters and they be moe than one The Eldest only should succeed and the other Daughters should resign their parts in her favours reserving to the Father to provide them which he did not There being beside some Heretable Estate Quaeritur If the Eldest will not only have the Land but her share of the other Estate as Heir Portioner Ratio Dubitandi That Law and Nature favours and intends Equality betwixt Children Especially where the interest and preservation of Families is not to be considered and upon that account there is no Prerogative of Primogeniture and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is only competent Liberis Masculis Daughters being finis caput familiae And by the Contract the Eldest Daughter is not obliged to Marry one of the Name or who should take the Name 2do The Heir cannot be Executor unless he confer or upon the foresaid consideration and there appears to be Eadem Ratio in this case Whitelaw If an Heir to the Effect he may share in the Executry offering to confer the Moveable Heirship ought not also to confer Lands and other Heretable Estate For the Executory may be very considerable and it were hard that upon Collation of the Moveable Heirship possibly of small value he should both retain the Heretable Estate how great soever and share in the Executory though very great If there be Three Daughters and the Eldest at her Marriage get a part of the Lands Quaeritur If she will share as Heir Portioner with the other Sisters unless she confer as in England Commission not to Expire morte Mandatoris IF a Commission may be granted by a Person to Freinds for Selling Lands and to endure irrevocable not only during his own Lifetime but after his Decease to bind his Heirs untill it be Execute Ratio Dubitandi Mandatum expirat morte And on the other part there may be a necessity to Sell and his Heirs may be Minors Or upon some other considerations it may be fit that there should be such a Power given And as he may bind himself by granting such a Commission he may bind his Heirs being eaedem Personae Commissioners to the Parliament QVaeritur If there be any case wherein Commissioners to the Parliament ought to consult the Shires whom they Represent Answer It is thought that albeit by their Election they have Commission cum Libera potestate It is to be understood that they may superstruere But cannot evert or alter Fundamentals and the constitution of the Government either of Church or State And if any thing of that nature be intended it ought not to be done by Representatives unless they have special Authority to that purpose Commonties THe Servitude of Pasture being either in common Muires as Gladsmuire or such like Or in Commonties belonging to Heretors and Superiors and their Vassals by Rights from them Or in Lands belonging to others and not to their Superiors Quaeritur If an Infeftment cum communi Pastura will be a Ground of Prescription in all the foresaid cases unless it be special as to the Subject and the Lands to be Pastured upon Answer As to common Muires if the Lands adjoining be Disponed cum communi Pastura by the King it is to be presumed that before they be Disponed the Kings Tennents of the Lands Disponed were in use to Pasture in the said Muire And therefore the Clause cum communi Pastura is to be understood with the Pasture formerly belonging to the King And in that case possession though not for the space of Fourty Years by vertue of that Right is sufficient 2do There is the same reason as to Lands Disponed by Superiours having a Commonty within their own Property v. g. in Dirletoun unless there be some speciality v. g. as in David Forrest his Precept of Clare constat there is Nine Acres given without mention of Pasture in the Commonty of Dirletoun and there is a Tenement and three Acres and an half cum communi Pastura in Communia de Dirletoun So that the Right being granted unico contextu the Right of the said Acre cum communi Pastura Excludes the same as to the other Nine Acres 3tio As to a Commonty within the Property of other Superiours the Clause cum communi Pastura in the Tenendas will not be a ground of Prescription unless there be a Right or Constitution by the Heretor within whose Property the said Commonty is Common Appendant QVaritur There being a Servitude
Donator to a Forefaulture has Action for Exhibition and delivery of the Evidents The Vassal of a Subject having granted a subaltern Right to be holden base and the same not being confirmed by the mediate Superior Quaeritur Whether the Subvassals Right foresaid will fall under the Forefaulture of his immediat Superior being Forefaulted Answer It is thought that it will fall under the Forefaulture in respect that if the person Forefaulted had committed a Crime against his Immediate Superior whereupon the Lands would have recognosced or Forefaulted to him The Subvassal his Property would have fallen under the Forefaulture and there is eadem if not major Ratio in the case of Treason The King being Superior Paramount and the Crime against him being also a Crime against the mediate Superior there being no greater wrong than to be a Traitor to the Superiour Caldwell and Glanderstoun Quaeritur Quid Juris If the mediate Superiour had confirmed the Subvassals Right Quid Juris in the case of Forefalture for Treason And if there be a difference in the case of Forefaulture in Parliament and before the Justices Lands being Comprysed and a signature being past upon the Comprysing but no Infeftment being taken thereupon Quaeritur If the Debitor commit Treason in the interim whether the same will fall under Forefaulture Answer It is thought that it will not seing the Debitor was fully denuded there being no vestige of Right in his person seing he is divested by the Comprysing as if he had resigned and the Superiour had accepted the Resignation Quaeritur Quid Juris If there were only a Comprysing without a Signature And the Question may be more general Viz. If in all cases the Heretor be so denuded that he cannot prejudge the Compryser by any Deed whereupon Recognition or other Forefaulture may follow in favours of the Superiour otherways a Malicious Debitor may of purpose do such a Deed to prejudge his Creditor To consider if there be a difference betwixt a Disposition and Resignation accepted by the Superiour And a Comprysing whereupon nothing has followed Item If the presenting of a Signature on a Comprysing to the Exchequer be equivalent to a Resignation in the Superiours hands and accepting Item Whether a Charge to other Superiours to enter the Compryser be equivalent to a Resignation If after a Person is Forefaulted an Estate should fall to him as appearand Heir to any person he being yet on Life whether would the same pertain to the King or to the next Heir as if he were Deceased Seing he is nullus being Forefaulted and is not in a Capacity to be Appearand Heir If a Forfaulted person have Children that are ante nati Whether or not will they be prejudged by their Fathers Forfaulture as to any Capacity or Estate belonging to him Whether will they succeed to their Grandfather or any relation upon the Fathers side Seing their Blood is corrupted and they cannot represent their Father being nullus as said is A person having Married an Heretrix and being thereafter Forfaulted Quaeritur If the Blood of the Children be so tainted and corrupted That they cannot succeed to their Mother 2do If the Mother should not dispone in her oun Lifetime Whether her Estate will fall to the King by the incapacity of the Children being her appeirand Heirs An Heretrix being Wife to a forfaulted person If al 's long as he liveth the King will have right to the Mails and Duties Jure Mariti 2do If she may dispose of her Estate without his Consent seing he is nullus in Law And yet is her Husband the Marriage not being dissolved with the Forefaulture A Father having Disponed his Estate to his Son with Reversion and power either to Redeem or Dispone Quaeritur If the personal faculty may notwithstanding be comprysed during the Fathers Life and may be used even after the Death of the Father There is the same Question as to Forefaulture A Woman being Heretrix of Lands in Scotland and the same being TailÈied to the Heirs of her Body whilk FailÈieing to certain other Heirs with the ordinary Clauses irritant that she and they should not have power to prejudge the TailÈie Quaeritur If her Husband being Forefaulted the Blood be so corrupted that her Children cannot succeed and if their Interest of Succession will fall to the King If a Tack set for an Onerous Cause and for payment of Debt will prejudge the Donator to the Forefaulture The Creditor having an Action of Reduction competent to him for Reduceing an Infeftment as being in defraud of him if thereafter the Debitor should be Forefaulted and the Creditor reduce the said Right what way shall he be Infeft seing he cannot Compryse or Adjudge the Debitor being Forefaulted There being a Minute of Contract anent the selling of Lands and the Buyer being thereafter Forefaulted Quaeritur If the King or his Donators will have Right to the said Minute in the same manner as the Buyer or if the Seller can raise a Declarator to be free of the Minute Seing albeit where there is a clear Right and Interest belonging to a person Forefaulted the same will pertain to the King yet when a Bargain is only in fieri and there are diverse obligements upon the part of the Forefaulted person the Seller ought not to be in worse case and in place of a Subject have so powerful an Adversary The Earl of Tarras and the Heirs of Walter Riddel The Laird of Cesnock having acquired from Castlemaines the Barony of Castlemaines but not being Infeft but base before the Forefaulture Quaeritur If by his Forfaulture these who had Rights holden of Castlemaines not confirmed by the King will be in any hazard Answer It Is thought not Seing any Right Cesnock had to the saids Lands was not as the Kings Vassal In which case the subaltern Rights would have fallen and Castlemaines remaining the Kings Vassal Cesnock had only the Right of property holden of Castlemaines And as to Castlemaines Right holden of the King Cesnock had only Jus ad rem by the Contract or Disposition so that thereby the King by the Forefaulture may come to Castlemaines Right and force him to denude himself of the same but it cannot be said that the said Estate came in the Kings hand by the Forefaulture of a Vassal Sempronia having Right to certain Lands which are parcels of a Barony Feued to her Authors by the Earles of Argyle who held the same Feu of the Arch-Bishops of St. Andrews who did confirm the subaltern Rights granted by the saids Earles Quaeritur Whether the saids Lands belonging to the said Sempronia do fall under the Forefaulture of the Earl of Argyle notwithstanding the confirmation granted by the Bishops In respect the saids Rights are not confirmed by the King In Answer to the said Querie It is thought that the saids Lands do not fall under the Earles Forefaulture for these Reasons 1mo The Earle of Argyle did Forefault only
what did belong to himself Nam noxa caput sequitur and the saids Lands did not belong to him in Property but only in Superiority And there is a difference betwixt the said case and the case of Lands holden immediatly of the King himself which by the Forefaulture of his Vassal are Forefaulted and does return to the King as he did give them pure and free and without the burden of any other Right granted by the person Forefault but such as the King did consent to and confirmed Whereas in the case in Question The said Earl did not hold the foresaids Lands immediatly of the King but of the Arch-Bishop who stands still His Majesties Vassal And as his own Right is not prejudged by the said Forefaulture so the Right of the sub-Vassal consented to and confirmed by him is not prejudged by the said Forefaulture 2do Lands holden of the Bishop waird or which would fall in his hands upon Recognition or otherways by the deed of the Earl of Argyle being Disponed by the Earl to be holden of himself will not recognosce by the Earles Deed in Disponing the Superiority or otherways if the Bishop had confirmed the Subvassals Right And there is the same reason in the case of Forefaulture in respect by the common Law when Lands do fall and are confiscat they fall to the immediate Superiour And by our custom in the case of Treason the King has that Priviledge that the Lands which are Forefaultare Confiscat and Forefaulted to him because the Crime is committed against him And therefore the Lands holden of other Superiours do Forefault to the King no otherways than they would belong to other Superiours if the Forefaulture did belong to them In which case the confirmation of the Subaltern Rights by the immediate Superiour of the person Forefaulted would save the Subaltern Rights that they could not fall under Forefaulture 3tio By the Law and Custom of the Kingdom it is lawful Subinfeodare and albeit it may be pretended that if the Bishop had not confirmed the Fews granted by the Earl of Argyle they would have fallen by his Forefaulture though lawful ab initio seing res devenit ad aliam causam resoluto Jure dantis resolvitur jus accipientis Yet in the case of confirmation by the Bishop there is a great difference seing the Subaltern Right doth not only depend upon Argyl's Right so that it falleth with it but has another Foundation whereupon it does subsist Viz. The Bishop's own Right and the confirmation granted by the Bishop and specially in this case seing it appears by the confirmation that the same is granted not to gratify the Subvassal and to prevent prejudice to him by the Forefaulture of Argyle if it should fall out but in order to the Bishop's own Interest and Advantage In respect by the confirmation there is reserved to the Bishop beside the Feu-duty payable to Argyle a Feu-duty to himself and his Successors with a Clause irritant if it be not payed And fictione brevis manus the Feuar is in the same case as if the Bishop ab initio by one Charter had Disponed the saids Lands to the Earl of Argyle in Superiority and to the Feuar in property for payment to the Earl of Argyle of the Feu-duty mentioned in Charter and to the Bishop the said other Deuty In which case Argyl's Forefaulture could not prejudge the Feuar of the Right of Property granted by the Bishop himself nor the Bishop of the said Additional Duty 4to By the Acts of Parliament K. Ja. 2d and K. J. 4. anent the setting of Feues and by custom ever since The setting of Fews was so speedful and necessar in order to the policy of the Kingdom That Vassals are not only allowed but invited to set their Lands in Feu which in effect is a general confirmation of all Fews so that the Fewers should not be in hazard either by the Waird or Non-entry or by any Deed or delict of their Superiour but should be lyable only to pay their Feu-duties to these who should have Right upon occasion of the same and the said Barony being of a large and vast bounds albeit it was Fewed to the Earl of Argyle yet for the labouring and bringing it in it was necessary to set it in parcells to other Fewers holden of him and the Fews in Question are granted before the Year 1606. A Subvassal holding of a person Forefaulted and his Right not being confirmed either by the Forefaulted persons immediat Superiour or by the King Quaeritur If his Right will fall under the Forefaulture Ratio Dubitandi Licebat infeodare noxa caput sequitur and yet is thought it will fall under the Forefaulture Because resoluto jure dantis c. And though it be lawful to grant Sub-altern Rights yet it is alwayes cum sua causa A Superiour being Forfaulted and his Vassals Right not being confirmed and so falling Quaeritur If His Majesty should confirm the Vassals Right if that will be habilis modus to secure against a poster or Donator Ratio Dubitandi The Vassals Right being altogether extinct by the Forefaulture there is nothing to be the subject of a confirmation which cannot be of non entis and the Vassal should have obtained a Gift upon the Forefaulture And contra The Vassals Right not being null of it self but such as could not prejudge the King when Lands return to him by the Forefaulture of the Superiour because he did not consent to the same his consent thereto at any time may convalidate the Right before Jus be quaesitum to a Donator If after Forefaulture His Majesty having granted a Remission the person Forefaulted is redintegrated to his Estate as if the Forefaulture had not been or if he should take a new Right upon the Forefaulture When a Forefaulted person has Right to succeed to any other person as Heir so that not only his own Estate but what would belong to him if he had entered Heir would fall to the King by his Forefaulture Quaeritur will the King be Lyable to the Debts of the Defunct seing he does not succeed to the Traitor 's own Estate and Patrimony but in haereditatem quae est nomen universitatis both as to the Debita and Bona and there is no reason that the Defuncts Creditors should be prejudged unless they had been in culpa either themselves or their Debitor His Majesty having presented upon Forefaulture a Vassal If that Superiour should be thereafter Forefaulted Quaeritur If the Feu not being confirmed will fall under his Forefaulture Ratio Dubitandi The Feuer is in the same condition with other Subvassals so that if he do not apply for confirmation he is lyable to the same hazard And yet on the other part it may be thought that the reason why Confirmation is necessary is because when Lands return to the King they return as they were given free of all Rights and Burdens but such as the King did
consent to which doth cease in this case seing the King is not only Consenter to the Subvassals Right but is Author by the presentation A Person having committed Treason and thereafter his Kinsman to whom he might have succeeded being Deceased Quaeritur If that Defuncts Estate will fall to the King or go to the next Heir Ratio Dubitandi That there seems to be a difference betwixt the case in the fifth Question of the Title Heirs when a person being Appearand Heir and having haereditas delata before he commit Treason the same should fall to the King seing he was Haeres habitu and had jus radicatum in his Person before his Treason and therefore Forefaults the same to the King Whereas in this said other case when the Succession fell the Traitor could not have any Right in his Person being nullus and incapable of Succession So that it cannot be said that he is Legitimus and propinquior haeres A Person holding Lands Ward of the King did give an Infeftment to be holden of himself Blensh and the same being confirmed by the King the granter was thereafter Forefaulted so that the Subvassal did come to hold of the King Quaeritur Whether he will hold as he did formerly or Ward as his immediat Superior did A Person being Appearand Heir both in Land and Heretable Sums but not being served Heir And being Forefaulted after the Decease of his Predecessor Quaeritur If he doth Forefault not only the Lands but the said other Heretable Estate Answer It is thought there is a difference betwixt Lands and any other Heretable Estate seing the Appearand Heir is obliged to enter to his Lands to the Effect the Superiour may have a Vassal Lyable to Service or other Duties so that his not entering is delictum vel quasi and the Lands are in Non-entry And he is in the same case in Relation to the Superiour as if he were entered Whereas as to any other Heretable Estate he needeth not owne or claim the same but if he pleases and he cannot have Right unless the same be settled upon him by a Service and consequently cannot Forefault that which is not his Vide supra in the Question concerning Cesnocks Forefaulture A Band being granted to an Englishman but bearing Registration in Scotland and being granted by a Scotsman If the Person Creditor be guilty of Treason whether it will fall under Forefaulture in England or Scotland Cum essent Sempronio duo filii Primogenitus patre adhuc vivo perduellionis damnatus fuerat postea patre mortuo utroque filio superstite nam perduellis fuga se subduxerat de haereditate patris ambigitur an ad primogenitum ex ejus persona ad Fiscum pertineret Nam Jure civili quod indigno aufertur fisco quaeritur Jure nostro haeres apparens Majestatis damnatus nedum sua sed bona haereditaria praedia quae sua forent si adita esset haereditast amittit ad fiscum transfert Sed distinguendum Et multum interest an filius praemortuo patre crimen postea admiserit an vero ut in casu praedicto ante patris obitum Majestatis reus damnatus sit priori casu cum primogeniti persona adhuc integra sit confestim a morte patris dies cedit haereditas ei delata est adeo ut qui etiam patre superstite haeres fuerat in spe Jam incipit haeres esse habitu spe certa radicata cum libuerit actu aditione haeres futurus si igitur postea maximam capitis diminutionem patiatur haereditas ipsi delata jus succedendi infiscum transit altero vero casu filio ante mortem patris damnato haereditas patris morte nec delata est nec deferri potuit utpote poena servo qui in jure nullus nec personam habeat in qua successionis jus radices agere queat his consequens est fratrem juniorem patri haeredem fore quia absurdum esset patrem a crimine alienum forte tam suis quam familiae meritis commendatum ex delicto filii nihil amittere dum viveret noxa enim caput sequitur morientem autem tum bona tum familiam memoriam perdere nec perduellis aut fisci melior debet esse conditio quod damnatus poenae se substraxerit extra quaestionis aleam est secundogenitum patri haeredem futurum primogenito patri praemortuo 2da In ista specie facti suboritur quaestio viz. si venia data restituatur primogenitus an frater desinit esse haeres Et quidem distinguendum est 1mo An cum restituitur haereditas integra ex asse adita sit fratre ex inquisitione haerede renunciato in omnibus quae patris fuerant praediis investito cum enim terrae in haereditate sunt ante investituram haud censetur esse aditio isto casu restitutio quae est ex gratia nemini nocet nisi concedenti nec adimit jus fratri quaesitum quod rite constitutum quaesitum est haud corruit etsi casus evenerit a quo incipere non poterat 2do Sin restituatur primogenitus haereditate nondum ullatenus adita eo casu quia res adhuc est integra sublato obice per restitutionem qui oberat ne haeres esse possit incipit haeres esse habitu aditione actu haeres erit 3tio Haereditate partim adita partim non fra re in quibusdam terris investito in quibusdam haud sasito novissimo isto casu frater in iis quidem terris in quibus investitus est haereditatem retinebit in reliquis primogenitus haeres erit tantum adeo discrimen est inter jus inchoatum id quod penitus consummatum quaesitum est Multa enim cadunt inter calicem supremaque labra Forisfamiliation QVaeritur If the granting of a Provision to a Child importeth Forisfamiliation so that the Child cannot claim a Bairns part Or if it be to be considered what the subject of the Provision is Viz. Whether it be Heretable or Moveable Seing in the first case it seems that the Provision being out of a different Subject should not exclude from a share of Moveables David Scot Son to Walter Earl of Buccleugh Funeral Charges IF Funeral Expences should be deduced as a Debt off the whole or only off the Deads part If the Funeral Charges for Burying the Husband should affect the whole Moveable Estate or the Deads part Answer It should affect the Deads part seing it is not a Debt contracted during the Communion And the Deads part cannot be used or employed better than to Bury him If the Funeral Charges should be deduced in Relation to the Quot so that the Quot should be only of the Deads part free of the said Debt Answer It is thought it should not be deduced for the reason contained in the preceeding Querie G. Gestio Haeredis IF an Appearand Heir medle by
and her foresaids in an Annualrent effeirand to the said Sum out of his Estate beginning the first Terms payment at the Term of Whitesunday or Martinmass after the FailÈie of Heirs of his Body in case they faill with this provision that in respect the said Infeftment is not to be effectual but in the case foresaid it shall not be prejudged nor questioned upon pretence of any length or lapse of time or Prescription And that the same shall not Commence or begin to run until the said Right become effectual in the case foresaid Publick Infeftments IF an Annualrent to be holden of the Disponer be confirmed by the King Quaeritur If that Confirmation will make it publick If an Annualrent be Disponed out of diverse Lands to be holden of the Granter and a Decreet of poinding of the Ground be got as to some of the Lands will it make the Right publick as to others Inhibition INhibitions upon Bonds or Contracts if they import only that nothing should be done in prejudice of the same and execution thereupon So that the person having reduced upon the Inhibition cannot make use of the same to sustain any Right but such as Depends upon the Ground of the Inhibition Both the person Inhibited and the person receiver of a Right being out of the Countrey the time of the Inhibition Quaeritur If the Right be Lyable to Reduction Ratio Dubitandi Both the Inhibited and the party Receiver should be certiorated and put in mala fide And as the Person Inhibited is not certiorate if he be out of the Countrey if the Inhibition be not Execute at the Peer and Shoar of Leith so there is eadem Ratio as to the Lieges An order being used upon a Conventional Reversion or Legal against 〈◊〉 Person Inhibited Will the Inhibition affect the Renounciation granted by him seing he may be forced to give it and it has Dependence upon a Right before the Inhibition If an Inhibition being Execute against the Debitor only and being in cursu only as to the Inhibiting the Leiges where the Lands lye being at a great distance and Intimation in the mean time to the party who is about to bargain with the Debitor will put the said party in mala fide So that there may be a Ground of Reduction Ex capite Inhibitionis against the party Inhibited and that the said Right is fraudfully made and accepted without a necessary cause in defraud of the Creditor and after intimation of his Diligence A whole Barony of Land being affected with an Inhibition and being thereafter Disponed in several parcels to diverse persons If one of the saids purchasers should be distressed by a Reduction ex capite Inhibitionis may he have recourse against the others for their proportional parts for his Relief they being in rem correï debendi Vide Annualrent Quaest 1ma If after an Inhibition is Registrate and Fourty Dayes are past if the Creditor getting notice that his Debitor has Lands within other Shires may inhibite the Leiges there and Registrate within Fourty Dayes And if in that case the Debitor must be himself again certiorate By a Minute an Estate much incumbered being Disponed and the price being agreed upon at a certain rate per Chalder or 100 Merks But so that the Incumberances should be purged by the price pro tanto and any Ease by the Creditors should redound to the Seller and the whole incumberances being purged the Buyer should Compt for the superplus of the Free-Money and should pay beside 20000 Merks after all is purged Quaeritur Whether the Benefite of the said Contract can be affected with an Inhibition or with Arrestment at the instance of Creditors of the Disponer Ratio Dubitandi The said Benefite is not Liquid If Inhibition does affect Lands acquired after Inhibition Answer Affirmative The Debitor not being Discharged to Dispone the Lands he has presently but simply his Lands and Estate If at least it affecteth such Lands as are acquired within the Shire where the Inhibition has been used Quaeritur If Inhibition doth affect Bonds though Moveable by the Act of Parliament so that the Creditor cannot Assign the same Quaeritur If Inhibition doth affect Bonds so that the Creditor cannot thereafter Assign the same Ratio Dubitandi That it is thought they affect only real Estates and Interests and there is no mention of Bonds and Debts which are Personal and they come not under the General of Goods and Gear which are real things Whereas Debts are Nomina and Entia Juris Rationis If Inhibitions affect Lands acquired thereafter The Ratio Dubitandi is No Diligence can affect non Ens and what did not belong to the Debitor And if Inhibition will not affect Lands when it is not Execute at the Mercat Cross where they lye much less can it affect Lands that has not Situm as to the Debitor and does not pertain to him and the narrative of the Inhibition is that the Debitor intends to defraud his Creditor by putting away his Lands which does not militate as to Lands which he has not then A Bond being granted after Inhibition and thereupon the Debitor being denounced and his Escheat Gifted Quaeritur If the Horning and Gift may be Reduced ex capite Inhibitionis Ratio Dubitandi That the Ground being taken away the Superstructure falls so that the Bond being reduced the Horning doth fall Contra The King is not concerned upon what Ground the Rebel is at the Horn if the Horning be valid and formal and the Inhibition doth import only that the Debitor should not give any voluntar Right whereupon his Estate which is the subject of Execution for Debt may be taken away but not if he should commit Crimes either of Treason or should be Rebel or do deeds wherupon Recognition may follow That the King or other Superiors should be prejudged of their Right and Casualities of Forefaulture Liferent-Escheat c. George Marshal contra Inhibition upon Teinds IF Inhibition upon Teinds interrupteth prescription without a citation specialy where the possessor is in possession by a Right If Inhibition puts a party bruiking by a Right in mala fide so as before his right be reduced to be lyable for bygones after the Inhibition Tweeddale If to the effect foresaid he be in mala fide because being Commissioner for the Earl of Lauderdale he prevailed upon the same Grounds against Oxenford Insinuatio DOnationes quae excedunt summam quingentorum solidorum sive aureorum insinuandae sunt ut effusae donationes coerceantur ne fraus struatur Creditoribus falsis donationibus Insinuatio est publicatio donationis apud acta vel ejus quod agitur apud Judicem in scripturam redactio Perez Inst Lib. 2. tit 7. Instance BY the common Law of the Romans and by the custome of France Instantia perit after three Years as to all effects of it v. g. Interruption of Prescription But without prejudice of the Action if it be not
nothing can be said positively to secure them from Question either by our Law or Custom The said case being not mentioned nor determined by either But it is to be thought and presumed that His Majesties Prerogative being asserted by the Laws foresaid and His Majesties owning that power to Command and Dispense as a part of His Prerogative and they conceiving that it was not their duty to dispute His Majesties Power Succeeding Princes will not think it their interest to be severe against any person for exceeding in Obedience to their Royal Predecessors Prescription IF a Feu-Charter of Kirklands not confirmed by the King or Pope with Seasins thereupon may be a Title to warrand Prescription Temporary Prescriptions as in case of House-Mails Servants Fies Ejections c. If they run against Minors The Vassal retouring his Lands to be in Non-entry Fourscore Years Quaeritur If he may object Prescription quoad the retoured Non-entry Duties Seing after the Years of prescription he confesseth the same to be due Temporalia ad agendum sunt Perpetua ad excipiendum If His Majesties annexed Property does prescrive If Prescription run against these who were Forefaulted by the Usurper Qui non valebant agere Found for the Negative Lauderdale contra Tweeddale That Lauderdale his Father and Good-Sire non valebant agere Because upon his Fathers Resignation Queen Ann was Infeft in Liferent and might have excluded them during her Lifetime and though he might have intented a Declarator yet that being such an Action as could not bring him to possession he was not obliged to intent it This Reason appears not to be without some Question seing if there were a Liferenter and Fiar and the Fiar should not prevail with the Liferenter to join in an Action for interrupting prescription the Fiar should be without remedy if he would not interrupt by Declarator and if a Declarator do interrupt it cannot be said that non valebat agere 2do A Declarator would have brought the Lord Thirlestoun to Civil possession at least so far as it would have been declared that the Queens possession was his and by vertue of the Right thereof he was Fiar And if the Queen would not owne the possession to have been by that Right she should have been forced to remove So that by that Action they might have attained natural possession Before the Act of Parliament 1621. anent Comprysings the Legal ran against Minors which argues that the Temporary Prescriptions of SpuilÈies for House-Mails Removings c. run against Minors If there be a difference betwixt the time of prescription in England and Scotland Whether is prescription inter decisoria Item If Prelates provided before the Act of Parliament 1585. against Dilapidations may notwithstanding thereof set Tacks without hazard Seing the Act seems to militate only as to persons provided thereafter If a Feu-set contrary to the said Act against Dilapidations may be a ground of Prescription Ratio Dubitandi That by the said Act the Patrimony of the Prelates is extra Commercium and is of the nature of the annexed property quod non est alienabile non est praescriptibile Vide Dilapidation in litera D. If in all cases when an Obligement or Interest and Right is in the Defenders Right whereby he bruiks may he alledge Prescription as he cannot do in the case of Reversion there being Eadem Ratio What is the Reason that Reversions Registrate do not prescribe Seing Bonds Registrate do notwithstanding prescrive If a Faculty granted to a Person as v. g. to the Disponer of Lands and a power to Dispone the samen or to Redeem upon a penny doth prescrive being granted apart If Prescription being alledged against a Bond it be Relevant to reply and to offer to prove by the Excipients Oath that to his knowledge the the Debt is due and true and not satisfied If a Reversion be granted only for five Years Quaeritur If in that case it prescribes against Minors Vide de Retractibus Gentilitiis if they prescribe against Minors If a Minor acquire Right to a Comprysing near expired singulari titulo will the Reversion be prorogate and if there be a difference betwixt a Minor succeeding as Heir or otherways Singulari Titulo Prescription against the King THE Act of Parliament 1617. Militateth against the King as to real Actions when the Defender has prescribed a Right by possession founded upon the Rights therein mentioned as appears by the express words and the ground of that Prescrption being not so much odium negligentia non petentis as favor possidentis which is the same as to the King as to another But in that part of the Act anent the prescription of Personal Actions there is no mention of the King and he cannot be said to be negligent and it is declared by Act of Parliament that the negligence of his Officers shall not prejudge him Quaeritur therefore if Prescription in that case be competent against the King Verba semper quandocunque designant temporis infinitatem si in pacto de retrovendendo adjiciatur haec clausula ut quandocunque venditor ejus haeredes velint pretium offerre Praedium recipere possint non obstante triginta annorum praescriptione Jus redimendi semper in perpetuum competit nisi possiderit Emptor pro suo vel contradixerit Reluitioni ab eo enim tempore incipit praescriptio In Contractibus enim nullum verbum debet esse otiosum verba autem quandocunque c. essent otiosa si non operarentur Thes Bes litera I. verbo 5. Je und allwegen p. 423. 424. Princeps potest privato privilegium concedere ut ipse solus in aliqua parte maris aut fluminis publici piscari possit aliosque ne id faciant prohibere Loca publica quae Jure Gentium communia sunt praescribi possunt tanto tempore cujus initii memoria non existat praescriptio enim immemorialis vim habet privilegii seu Tituli potius praesumpta concessio quam praescriptio dicitur praesumptio ex ea exsurgens est Juris de Jure nec admittit probationem in contrarium Jus Flaviatile p. 260. n. 261. Praescriptio impium praesidium Novel 9. Respublica municipium non restituitur adversus praescriptiones temporales quae Jure veteri respuebant restitutionem vide Frisch Tom. 2. Exercitat 2. n. 58. sequent Jure Novel praescribitur contra Rempublicam Civitatem Triginta vel quadraginta ann ibidem n. 63. Praescriptio Conventionalis a Defuncto coepta currit contra Rempublicam quae ei successit Ibidem n. 65. In Praescriptione Jure Civili bona fides requiritur ab initio nec desinet usucapiens acquirere licet mala fides superveniat Jure autem Canonico bona fides requiritur toto tempore Requiritur etiam Titulus id est justa causa possessionis habilis ad transferendum Dominium Res furtivae vi possessae Jure
haud obtruditur ante Resignationem cum Domino transigitur de Laudimiis si quae alia ab Emptore praestanda sunt Domino ut ab omni periculo incommodo securus sit Non diffiteor longe aliam rationem esse Domini Regis Cum enim Pater Patriae sit nec sit e dignitate sua causari aliquem e subditis sibi iniquum aut infensum nullo delectu aut discrimine Resignationes recipit per eos quibus eam Provinciam demandavit Adhaec Principes de rebus publicis solliciti privatis superesse nequeunt viris clarissimis qui a Rationibus sunt utcunque impigris sedulis haud mirum est si aliquando imponatur sed fraus deprehensa punitur lege consultissima statutum Regis Ministrorum Incuriam Negligentiam Regi haud officere nec difficile adhibere remedia quibus fraudibus incommodis obviam eatur inter alia illud esset haud spernendum si Resignatione facta Instrumentum Resignationis statim conficeretur subscribentibus etiam tam Resignante quam Resignatario apud Cameram Rationum deponatur alioqui Resignatio habeatur pro infecta sic enim constabit Resignationem celebratam incommoda supradicta cessabunt Interea quae pro Negativa disseruimus intelligi velim si compertum sit Resignationem factam nec fraudem subesse eo casu quia omne Jus a Rege ut Juris fonte profluit si scriptum sit sanxit si moribus introductum permisit quasi tacito consensu firmavit quod in alios statuerit Jure uti debet Cum Deus nobis haec otia fecerit aut fieri permiserit statueram ea utcunque oblectare id genus exercitationibus comperto quaestionem in foro ventilari videbar mihi operae pretium facturus si in casu arduo exitus dubii ancipitis quicunque demum futurus sit magni momenti quid Juris sit dispicerem quid meae esset opinionis dicerem id feci eo animi candore ut nec in Regem studio quod mihi semper maximum fuerat nec alio affectu transversum rapi mihi permiserim licet in causa simili etiam res mea ageretur nec socero nec vitrico nec aliis ultimus haeres fui nec assentatione aut aliis artibus ab aliquo opes eblanditus aut adeptus sum nec munus antequam enim ad munera eodem quo nunc mihi ereptum est impetu ab iisdem raptus sum tantum non invitus eorum quae mihi acciderunt praesagus Deo largiente industriae Laboriosae innoxiae alienis haud inhianti favente fui adhuc sum Superior Dominus directus haud unius Vasalli sed cum ista animo agitarem immo persoripsissem haud animo praejudicandi nedum sugillandi amplissimi Senatus sententiam incertus quaenam futura esset sed ne animus negotiis assuetus immo ab ineunte aetate innutritus nunc ignobili otio desidia torpesceret tandem mihi nunciatum est Senatum pro Affirmativa judicasse secundum actorem Regis Donatarium Retention QVaeritur In the Cases of Compensation mentioned in the Questions second and third anent Compensation in the Letter C. If at least the Defender may pretend that he should not be in worse case than if the Assignation were not made and therefore ought to have Retention until his Debt be liquidate It is Answered That there is no ground for Retention but the Defender ought to have done Diligence to affect the Debt due to him which he might have done by Inhibition upon the Dependence or by assigning his Action to the effect Arrestment might have been made in his hands of the Debt due by him Cum refundere oportet Ãmpensas meliorationes Jus Retentionis competit quia interest magis per Exceptionem retinere quam per actionem repetere Jus Fluviat p. 779. n. 78. Retours IF the Sheriff-Clerk and Sheriff of the Shire to which the Lands are unite may not give Seasin and will be lyable to answer in capiendo Securitatem for what is contained in the Retour as to both Lands Retoured Duty AN Annualrent of One Hundred Pound Sterling being given out of a Barony for a Sum of Money lent to the Baron upon that Surety to be holden of the Superior Quaeritur If the Barony being of a considerable Rent suppose Nine Thousand Merks per annum and the new extent of the haill Barony being but Twenty Pounds if the Annualrent should be in Non-entry whether the Non-entry should be the full Annualrent upon that pretence that valet seipsum Or if it should be only a proportion of the retoured Duty viz. The fifth part Answer It is thought that it should be only a proportion of the retoured Duty And valet seipsum is only understood when there is no other retoured Duty And in this case it appears there is no other retoured Duty In so far as the whole Barony and Rent being retoured the Annualrent being the fifth part is consequently retoured And it were absurd that for the Non-entry of an Annualrent there should be more due than for the whole Barony Specially seing the Superior wants not a Vassal of the Barony to serve him for the whole Barony and the Annualrenter is not properly a Vassal obliged to serve being infeft only for surety of his Money Return of Lands to the Superior upon a Provision IF there should be any Difference betwixt Vltimus Haeres and the King succeeding upon a Provision of Return FailÈieing Heirs male Ratio Dubitandi An ultimus Haeres and the Donatar is lyable to Debts but in the other Case it is doubtful Because it is a Maxim that when ever Lands are returned to the Superior either ad Remanentiam or ad Tempus as in the Case of Forefaulture or Recognition or Ward or Non-entry they return pura ut profecta sunt and specially in ward-Ward-lands and where it appears that the Superior elegit familiam and has given Lands with an express Provision of Return it may seem reasonable that seing he has none to serve him in the Family he may have the Lands back in the same condition he did give them Return of Lands to the King failÈiening of Heirs Male THE King having disponed Lands without an Onerous Cause to a Relation or Servant and his Heirs male which FailÈieing to return if the Masculine Line fail Quaeritur Will the King have Right without the Burden of Debts 2do If the Lands be comprised although the King should be free of Personal Debts Will the Compriseing though expired be void Quia resoluto Jure dantis resolvitur Jus accipientis Reversion A Reversion being granted failÈiening Heirs of the Granters Body may the Granter dispone as absolute Fiar Will his Wife have a Liferent by the Contract of Marriage Will she have a Terce So that the Effect of Reversion will be only
to his Heirs and assigneys And thereafter having Disponed certain Lands for implement of the said Contract to the eldest Son he had then of the said Marriage which FailÈieing to his oun Heirs and Assigneys Quaeritur If the eldest Son and his forsaids will be lyable to all precedent Debts as Successor titulo lucrativo Ratio Dubitandi That he was only a Son of a third Marriage and his Father had Sones of a former Marriage Answer It is thought he will notwithstanding represent his Father In respect the said Right is for implement of the said Contract as said is and if the said Sum had been employed conforme to the Contract he would have represented his Father And by the said Right he represents him per praeceptionem And that he would be lyable suo ordine as Heir of the Marriage the Heir of Line being discust Quaeritur In the case foresaid if the said Son of the third Marriage will be lyable to Debts contracted after his Right by his Father Seeing his Father is obliged that he should succeed him in the Right of the sa d Sum And the Creditors ought not to be in worse case than if the said Sum had been employed and Successores titulo lucrativo are not lyable to posterior Debts when the Right granted to them is mera Donatio So that their Father was not obliged that they should succeed And the Father was a Merchant and continued his Trade thereafter and became Bankrupt vide Heirs Quest 3. in Litera H. If a Gentleman by his Son's Contract of Marriage dispone his Estate to him will he be lyable to all the Debts or only effeirand to the value of the Right An Uncle having Disponed to his Nephew his Lands or others being for the time his appearand Heir and having Died without Children Quaeritur whether he be lyable as Successor Titulo Lucrativo Ratio Dubitandi he was only presumptive Heir And the Uncle might have had Children if he had married again And upon the reason forsaid if the Lands had holden ward they would have recognized An Appearand Heir being Infeft in Liferent in Lands to which he might have succeeded Quaeritur whether he will be Successor Titulo lucrativo specially if the Liferent be settled upon him and the Fee upon his eldest Son Singular Successors QVaeritur If the Act of Parliament anent Registration of Seasins as to singular Successors should only be understood such as have acquired Right from the common Author and not Comprysers and such as succeed upon account of Forefaulture Sums heretable and movable Lands being Disponed by a Contract and the Buyer being obliged to pay the Price Quaeritur whether the Seller's Heirs or Executors will have Right to the said Price Ratio Dubitandi The Price cometh in Place of the Lands and the Heir will be obliged to denude himself of the Right of the Lands the Disponer's obligement being only prestable by his Heirs So that it seems the Heirs should have Right to the Price On the other part the quality of heretable or movable depends upon the arbitrium and Destination of the Creditor himself and it appears that the Disponer having sold his Lands for a Price he intended in lieu of an heretable Estate to have only a movable Estate in Money not to ly in the Buyers hands but to be employed as the Disponer should think fit either for Tradeing or otherwise So that the said sum should belong to his Executors Quaeritur If Sums consigned for Redemption of Land be of that same nature Ratio Dubitandi It appears there is a difference upon that consideration that a Person who has a Redeemable Right does not desire his Money and the Reversion is in Rem so that the Sums due thereupon appear to be heretable untill they be uplifted surrogatum sapit naturam surrogati Sums movable A Sum being due upon a Wadset with the ordinary clause that by the premonition and charge that should follow the Infeftment should not be loused untill payment Quaeritur If after Execution used the Sum becometh movable Ratio Dubitandi It is yet due upon Infeftment and it cannot be conceived that the Executors or Donator should have Right to the Infeftment being only in favours of the Heirs Eldest superior WHen Lands are holden Ward of diverse Superiors The eldest Superior and antiquior is preferrable as to Mariage Quaeritur the forsaid quality of antiquior whether it is to be considered in relation to the Vassal so that the superior that he did first hold of is to be thought antiquor Or if it be to be considered in relation to the feudum it self so that the feudum that was first constitute by a grant from the King to the Vassals authors should be thought antiquius Quid Juris If a Person be infeft as Heir to his Mother or her Father to be holden Ward and thereafter be infeft as Heir to his Father the Lands also holding Ward whether of the Superiors will have Right to the Marriage A Person being infeft in Lands holding Ward and thereafter being infeft upon a Comprysing in Lands holding of the King Quaeritur If the Marriage through his decease will fall to the King or the other Superior during the legal Ratio Dubitandi a Right by comprysing is only for security and Redeemable Superior mediat THe immediate Superior being found to have amitted his Superiority during Life because being charged he did not enter Quaeritur If the mediat may infeft upon Resignation being only Superior in that part and in subsidium that the Vassal should not have prejudice by his immediate Superiors nonentry but not ad alios effectus which may prejudge the immediate Superior and in special that by obtruding to him a singular Successor to be his Vassal That same question may be in the case of Ladies Liferenters and Conjunctfiars of Superiorities T. Tack A Tack being sett in April of certain Lands and Houses whereof some were possest for the time by the Tacksman by a verbal tack or Tolerance others sett to Tennants and the Tack bearing the Entry to be after separation from the ground in anno 1652. in which it was set Quaeritur A Compryser being publictly infeft befor separation if the Tack will not militate against a singular Successor the Entry being indebito tempore after the Setter was denuded Answer It appears that the Entry as to the commencement of the Tack was presently the time of the date Seing as to the Houses and some of the Lands the Tacksman was in natural possession and as to the grass of the Lands sett to a tennant the Entry though not exprest was at Whitesunday following and the entry mentioned in the Tack seemeth to be meant of the Tacks-mans Entry to Labour Interpretatio facienda ut actus valeat If at least the Tack should be invalid as to the Lands which were set to tennants as being not publick by possession Answer It is thought that a Tack being
delictum If Marriage be real and affects in prejudice of singular Successors Ratio Dubitandi Hope is for the Affirmative and alledgeth Decisions To consider Haltons case On the other part in Novodamuses amongst incumberances that affect there is no mention of Marriage 2do The Marriage respecteth not the Lands but the person and his other Estate as to the value 3tio It may appear to be a personal Prestation whereto the person and his Right dureing his and his Heirs time is Lyable but doth not affect a singular Successor as in the case of Ward A Vassal of Lands holden Ward of the King did Feu the same before the Year 1633. when it was lawful to Feu Lands holden Ward of the King and when the said Feu was granted the Disponer did grant a general Discharge of the Feu-duty except dureing the Ward and for securing the Feuer having bought the saids Lands as optima maxima at alse high a price as if the Lands had holden otherwayes that he and his Successors should not be Lyable to the Feu-duty during the Ward the Disponer was obliged to Infeft the Feuer in an Annualrent out of other Lands equivalent to the Feu-duty suspending always the effect of the said Right except during the Ward Quaeritur 1mo If the said general Discharge with an obligement to grant particular Discharges when required will militate against singular Successors being in rem Answer Cogitandum But it is thought that it will not unless the same were by way of Provision in the Charter and Seasin When Ward Lands were Feued which did hold of the King before the Year 1633. The Feuer during the Ward was only Lyable to the Feu-duty by the old Act of Parliament allowing the Feuing of such Lands but there is no mention of the Marriage in the said Act of Parliament Quaeritur therefore Whether the Marriage of the Disponer and his Successors will affect such Feues It is Answered That it is thought not seing the setting of Feus being allowed it appears that Feuers should be only Lyable to the Feu-duty The Feuer having ever possest since the granting of the said Right mentioned in the Querie abovewritten except one but not being Infeft upon the said obligement to Infeft in an Annualrent for relief of the Feu-duty Quaeritur If the Feuer should pursue upon the said obligement if it may be obtruded that it is prescribed Ratio Dubitandi That the said obligement is a part of the Feuers Right and the Feuer has been in possession by vertue of his Right all the time and if the Feuer had not been Infeft upon the Feu-Charter and had been in possession by the space of Fourty Years and after the expireing of the same should pursue the Disponer and his Representatives to grant a new Charter with a Precept to Infeft it could not be pretended that the said Right was prescribed If Lands holden Ward of the King be Feued after the Year 1633. and the King should question the said Feu as null being contrar to the Act of Parliament Quaeritur If Prescription may be alledged and obtruded against the King Ratio Dubitandi That the Right is null ab initio and cannot be a warrand and ground of Prescription Et quod nullum est nullum sortitur Juris effectum A Vassal of Ward Lands holden of the King having Feued the same conform to the Act of Parliament warranting such Feus Quaritur If the Vassal be Forefault whether such Feus will fall under the Forefaulture if they be not confirmed Or if the Act of Parliament warranting such Feus be equivalent to a confirmation Answer It is thought the King for himself and his Successors by the said Act did consent to all Feus that are to be granted by vertue thereof So that the same is equivalent to a Confirmation Marques of Huntlie Taxt Ward A Gift being granted of Wards simple or Taxt falling within a certain time Quaeritur if the Donator will have Right to the Taxt Ward for Terms thereafter Answer He will have Right to the same if the Taxt Ward has fallen within the said time as the whole time of the Ward seing Ward is to be considered as Jus integrum and Dies cedit when ever it falls albeit non venit Warrandice A Bond being Assigned with absolute Warrandice Quaeritur What is the import of the said Warrandice And if the Cedent should be Lyable if the Debitor be or should become Insolvent Answer It will import only that the Debt is true and due by a valide Bond but not that the Cedent should be obliged to warrand the condition of the Debitor the Law being express to that purpose that he should warrand deberi but not Debitorem locupletum esse As was found in the case of Mr. Robert Barclay Quid Juris If the Warrandice be in these Terms that the Debitor is Locuples and he be truely so for the time but he becomes Insolvent Cogitandum Infeftment of Warrandice IF an Infeftment of Warrandice being only base will be construed to be publick by Possession by reason of the Possession of the Principal Lands Dunglas Waste WAste being committed by a Liferenter or Wadsetter and the Heretor deceasing or disponing the Lands whether will the Action for the same be competent to the Heir of the Heretor or to his Executors or Singular Successors Answer It is thought it will belong to the Heir or Singular Successor being Actio in Rem And so it is by the English Law Witnesses Remitted THE necessary Qualification of a Witness being Honesty and Integrity which though presumed in all Persons yet cannot be thought to have been in these who by sentence on their own Confession are evidently Criminosi and guilty of the highest Crimes It would seem that a Remission may Free as to punishment and may Repone as to all other capacities and as to the Kings own Interest But not as to that which in behalf of the People requires Integrity And the King by a Remission may free a Pain but not a Guilt and cannot repone to Innocency Witnesses in case of Treason THE Law of the Majesty and the Statutes of King William Chap. 11th Of these who are Infamous and the Statutes of Robert the 1st Cap. 34. of these who are repelled from Testimony are clear that Socii Criminis cannot be Witnesses and convicti redempti cannot be Witnesses Quaeritur therefore if a Person convict of Treason and Remitted that he may be Witness against others can be Witness Especially that Law bearing That conducti prece vel pretio cannot be Witnesses and there can be no greater pretium than a Mans Life Skin for Skin c. VVomen VVitnesses QVaeritur If Women Witnesses may be admitted in the case of Divorce to prove Adultery Answer This Question is under debate upon Advocation from the Commissars of Edinburgh having admitted the same And that they should not be admitted 1mo That by our Law Cap. 34. Stat. 2d Ro. 1st Women are
the said Impositions without repineing until after the Year 1664. That they did not so much question the Town 's Right to impose upon them the said Stents as the exorbitancy and frequency and inequality of the same as to their proportions they could not be heard now to plead and pretend exemption from the said Stents The Lords having Found as said is That the Lands of Drakies were not lyable to the said Stents The said _____ Roberson of Inches in behalf of himself and some other Feuars having only appeared in the debate and Forbes of Colloden who thought himself concluded by the above-written Decreet of Suspension and has consented to the same did notwithstanding desire that he might have the benefite of the said Interloquitor and that the parcel of Land which he had in the Forrest of Drakies might also be declared free of Stents seing there was eadem ratio and so there ought to be idem Jus as to him and the said other Feuars It was Answered for the Town of Innerness That he could not be heard in respect of the said Decreet of Suspension in foro and of his express consent therein contained Whereunto it being Replyed that the consent was only as to the individual Stent thereinquestioned and did not conclude him as to other Stents and that notwithstanding thereof it being now Found that the Forrest of Drakies whereof his was a part was free the immunity foresaid could not be denyed to him It was Answered and the said dissenting Lords were of the opinion that a Decreet in foro did bind him whatever others could pretend And it was evident by the said Decreet that it was then the Lords meaning Sir John Gilmour a person of great Parts and Integrity being then President that all the said Lands of the Forrest of Drakies should be lyable in all time coming and his consent is most positive and express to the Regulation of Stenting as to the future And the said Consent being premitted to the whole decerniture of the said Decreet doth influence and affect all the Articles and Heads of the same unless it had been limited and special as to an or moe and not all And it was so far from being limited to the Stent then in question that there is a Protestation subjoined to the decerniture in these Terms That Colloden and the Suspenders doe protest that they should not be lyable to such Stents as should be imposed for maintaining the Plea against themselves And exceptio protestatio firmat Regulam Sententiam in non exceptis iis contra quae non emissa est protestatio The Lords notwithstanding Found That Colloden should be free of Stents as to such Parcels as he had of the Lands of Drakies Thereafter the Town of Innerness did alledge that the Suspenders ought to be lyable as to the Milns and Fishings that they held in Feu of the Town seing they are undoubtedly the ancient Patrimony of the Town and they offer them to prove that they have been in use past memory to stent the same with the Burgal Lands when occasion required not only for Taxations imposed by Parliament but for the private use of the Town It was Answered That the said Alledgance was not now competent seing the Debate whereupon the Interloquitor proceeded was concerning the Suspenders Feues which they hold of the Town which comprehend both Lands Milns and Fishings and there is no reason of difference why the Milns and Fishings should be in an other case than the Lands It was Answered for the Town That in all the Debate there had been no mention of Milns and Fishings and they were content to make Faith that they did not understand the Debate to be concerning the Milns and Fishings but only the Lands of Drakies And if they had thought that they had been concerned to prove their Possession as to the Milns and Fishings there was that speciality that they might have proven more clearly their Possession as to the Milns and Fishings than as to the Lands and now they are able to prove the same Some of the Lords thought That the Question being of that Importance to an Incorporation and they wanting the Assistance of their most able Advocats upon the occasion abovementioned and the exception being undoubtedly relevant to inferr their Right and the conclusion of their Declarator as to the Milns and Fishings that they should be lyable to be stented if it were proven It were hard that their Right should be taken from them upon a quirck and pretence of Omission being upon a mistake as said is In end the Plurality of the Lords did Declare by their Interloquitor That if in November the Town should be able to make appear by ancient Records that they had been in Possession of stenting the Milns and Fishings with the Tenements of the Town when Impositions and Stents were laid on by the Town only and not by the Parliament for their private use that the same should be lyable as other Burgal Lands D. 191. Hamilton contra the Earl of Kinghorn 11. November 1674. JAmes Mauld of Melgum having assigned to James Hamilton two Bonds and he having intimate his Assignation to the E. of Kinghorn granter of the same did thereafter write to the said Earl shewing him that he had use for the Sums contained in the said Bonds and that he desired a course might be taken to pay the same And in Answer to his Letter the said Earl did Write and subscribe a Postscript upon a Letter writen to him by the said James Mauld to that purpose that the said James Mauld had assured him that he had made the Assignation foresaid upon assurance that my Lord should not be troubled to pay the said Debt and that he was about to take a course to that effect but that notwithstanding if he must be his Debitor he should take a course to pay the Annualrent but as for the Principal Sum it was not foreseen by him that he should be put to pay it at that time and he desired forbearance And thereafter being charged the said Earl suspended upon that reason that the said Bonds were granted by him to Melgum for the price of Lands Disponed by him to the Earl and by a Back-bond of the date of the said Bands Melgum was obliged to Warrand the Rental of the said Lands for two years and quatenus the Tennents should be short in payment of their duties the time forsaid he should pay wherin they should be wanting and that the Earl might retain in the first end of the foresaid Sums And that the said Earl had got a Decreet against the Tennents of the said Lands for payment of the Sums therein contained and therefor that he had ground of retention and compensation upon the foresaid Bond granted by Melgum effeirand to the Sums restand by the said Tennents Whereunto It was Answered that tho Compensation competent against the Cedent is competent against the Assigney yet where
continued still And Pilton's applying any part of the same for the use of my Lord Sinclair was so far from purgeing the Fraud that by the Act of Parliament it was a clear evidence and probation of the same And yet they thought That Pilton having out of respect to his Friend lent his name inconsideratly he might thereafter for his security take and the Exchequer might give Herdmanston's Liferent Escheat upon the account foresaid and the same cannot be thought to be to the behoof of my Lord Sinclair unless it had been either procured by my Lord Sinclair or granted expresly for his use And as to my Lord Sinclair's own Liferent His Majesty and Exchequer might qualify the Gift as they they thought fit and His Majesty might have been concerned upon many considerations that my Lord Sinclair should not want an Aliment and might either have detained his Liferent in his own hands in order to his Aliment or given the same sub modo and with the Burden thereof And the said Gift was given as to the Superplus foresaid for the Lord Sinclair's Aliment not to be modifyed by any other but by the Exchequer and at their sight and direction as the said Gift bears Upon the Grounds foresaid the Lords did prefer Pilton conform to the former Decreet Sir David Falconer and others for the Creditors alteri Dalrymple D. 199. Auchintoul contra Innes 10. Decem. 1674. THE Lords Found That a person being pursued as representing his Father or other Predecessors and denying the passive Titles the same ought to be proven and that the Defender by proponing a Defence in Jure as in the case in question that Annuities were discharged by the late Proclamation does not confess the passive Titles But if he should propone a defence founded upon a Right in the person of his Predecessor it would conclude him so that he could not pretend that the passive Titles should be proven Newbyth Reporter Vide 20. January 1675. Carfrae contra Talzifer D. 200. Stuart contra McDuff 11. Decem. 1674. IN a pursuit for payment of a Sum of Money It being Alledged That the Pursuer had intrometted with Moveables and Goods to the value of the Debt Lybelled pertaining to the Defenders Father for whose Debt he was pursued and that it was to be presumed that he had got the saids Goods in satisfaction of the same Debt unless he should alledge and prove an other Cause The Lords Found That if the Defence should be proponed in these Terms that the Pursuer had got the saids Goods in satisfaction and that they were data in solutum the Defence ought to be positive and that the delivery of the Goods was probable by Witnesses but the quality foresaid could not be proven otherwayes but by the Pursuers Oath But if the Exception was proponed so as to infer compensation viz. That the Pursuer had Intrometted with the saids Goods to the value of the Debt that it ought to be verifyed instanter by Write or Oath Castlehil Reporter Hamilton Clerk D. 201. Home and Elphingston contra Murray of Stenhop eod die IN a Competition betwixt an Assigney and an Arrester It was Alledged That the Assigney should be preferred because the Assignation was anterior to the Arrestment and tho it was not intimate yet the equivalent was done in sua far as the Debitor being desired to make payment to the Assigney and shewing his Assignation did promise to pay the same which upon the Matter was like a Bond of Corroboration which certainly would prefer the Assigney notwithstanding he had not intimate his Assignation The Lords Found That if the said Promise were verifyed by Writ it should exclude the Arrester but that it could not be proven by the Debitors Oath in prejudice of the Arrester And even as to the Debitor the said promise could not bind him being made in contemplation of a Right supposed to be in the person of the Assigney Which being Found not to be a valid Right there were no reason that the Debitor should pay twice And whereas it was pretended That if the Debitor had not accepted the Debt and promised payment the Assigney would have done Diligence so that he would have been preferable to the Arrester The Lords thought that sibi imputet that he had not perfited his Right as was Found before in the case of Pitfoddels contra Donaldson Forret Reporter Gibson Clerk D. 202. Moubray contra Arbuthnet 12. Decem. 1674. IN a Process for the single avail of a Marriage The Lords modifyed 9000 Merks the Rent of the Lands being proven to be 3000 Merks and it was thought that the avail of the Marriage should be in all cases of that nature 3. Years Rent D. 203. Lord Balmerinoch contra The Tennents of Northberwick 13. Decemb. 1674. THE deceast Sir William Dick having charged the Lord Balmerinoch for payment of a great Sum of Money due by a Bond granted by his Father and diverse other Noblemen who were Actors in the late times and did borrow the said Sums for the use of the publick as they called it and the said Lord Balmerinoch having Suspended upon diverse Reasons and also upon a Reason of Compensation Founded upon a Bond granted by the said Sir William to Sir John Smith whereupon the said Sir John had a Right to the Lands of Northberwick and had Assigned and Disponed the said Debt and Right in favours of the Lord Balmerinoch by a Disposition and Assignation Blank in the name of the Assigney and no Decreet being Extracted upon the said Process and the Act of Parliament anent publick Debts that no Execution should be for the same having interveened The Lord Balmerinoch having filled up the said Assignation in the name of James Gilmour did intent in his Name a Process for Mails and Duties against the Tennents of Northberwick The Creditors of the said Sir William Dick pretending Right to the said Lands by diverse Infeftments did compear in the said Process and alledged that the said Right whereupon the pursuite was Founded was extinct and satisfied In sua far as the said Lord Balmerinoch had Founded a Reason of Compensation upon the same against Sir William Dick which was sustained and whereupon there was a Minut of a Decreet Suspending the Letters against Sir William Dick for the Debt above-mentioned And that the said Assignation granted by Sir John Smith had been given up to Sir William Dick or his Son Sir Andrew as their Evident for Exonering the said Sir William of the Debt compensed upon It was Answered That there was no Decreet in that Process of Suspension against Sir William Dick And as to the said pretended Minute it was not produced And whereas it was desired that William Dounie who was Clerk for the time should be examined upon Oath concerning the said Minut and the giving up the said Assignation to Sir William Dick or his Sons It was urged that the Minutes and Acts of Process could not be made up by Witnesses
reason why the Defunct should have appointed the said Election to be in manner foresaid for the first time and not thereafter And if the Colledge had not the Right foresaid it should not belong to the Town but the Defuncts Heir who doth concur with the pursute Newbyth Reporter Robert Hamilton Clerk D. 270. contra 18. June 1675. IN an Adjudication the Appearand Heir being called and his Advocates having compeared and desired to see the Process It was Alledged That he had no Interest having renounced and that his compearing was only to retard the Pursuers Diligence that other Creditors might come in This point of form being reported viz. Whether his Procurators should see And if they should see whether in communi forma or not or in the Clerks hands Some of the Lords were of the Opinion That being a Person necessar to be called and being called his Procurators should see in communi forma the Law making no distinction and tho he had Renounced yet he had Interest to see and object whether the Pursuers Debt was the true Debt or satisfied and if it appeared that it was satisfied he may notwithstanding his Renounciation enter if he thought fit And the Renounciation may be questioned as false The Lords nevertheless Found That he should see only in the Clerks hands within 24. Hours tho it was urged that if the Party were in Town that course might be taken but the Party being at the distance of 100 Miles or any other considerable distance so that in so short a time the Procurator could not get Information it were better that in such cases the Processes should be seen in communi forma For if Parties had prejudice they would apply again by Bills which would occasion greater trouble and delay Redford Reporter D. 271. E. Weems contra Bruce 22. June 1675. A Bond being granted by the Earl of Weems to _____ Bruce and his Wife Gaw and the longest liver of them two and to the said Bruce his Heirs and the said Gaw the Relict having intented a pursute for payment of the Sum due thereby It was Alledged it was prescrived there being more than 40. Years Elapsed since the granting It was Answered That the time of the Husbands Lifetime the Bond did not prescrive against the Pursuer being cled with a Husband and so non valens agere The Lords upon the Report made by my Lord Newbyth Did ex tempore Find That it did not prescrive during the Husbands time Tho some of them were of the opinion that the case was of importance as to the Consequence and was to be further thought upon and debated in respect it cannot be said but there was a Person valens agere ever since the date of the Bond the Husband dureing all this time being valens agere and after his decease the Wife and the Husbands silence being the Fiar and the Person who had Right for the time being joined with the Relict her silence and both being joyned by the space of 40. years all the reasons of Prescription concurred in the Case viz. That Debitors should be secured after so long a time and that there is praesumptio Juris the Bonds may be made up and nothing thereon done till all the witnesses were dead And that maxim contra non valentem agere c. is to be understood in the case where there is not a person having Right valens agere by the space of 40 years or in the Case of temporary and momentary Prescriptions but not in Prescriptions longissimi temporis Otherways Prescription being the great Salvo and Security of People might be eluded and a person acquiring a Right of Lands possest by his Author peaceably for the space of 40. Years without any Interruption should not be secure seing it may be pretended That the Husband having been silent fourty Years without any Interruption his Wife who pretends Right to the Lands by Liferent or otherways non valebat agere during the Marriage D. 272. Bruce contra Bruce 23. June 1675. DOctor Arnot having disponed to one of his Nevoys an Annualrent out of certain Lands belonging to him and thereafter having disponed to another of his Nevoys the elder Brother of the Annualrenter the foresaid Lands A poinding of the Ground was intented at the Instance of the Person who had Right to the Annualrent And It was Alledged That the Disposition of the Annualrent was never delivered by the Doctor but was beside him the time of his decease and was viis modis gotten out of his Charter Chest and given to the Pursuer To which It was Answered That the Pursuer had the Paper in his Hands and it was presumed to be delivered And 2do Tho it should be supposed that the said Right was amongst the Doctors Papers the time of his decease yet the Doctor having made the said Right publick by an Infeftment and Seasin thereupon to the Pursuer which was Registrat albeit he might have evacuate the said Right by destroying the Disposition yet nevertheless having keeped the same by him undestroyed it ought to be construed in Law that being Uncle to the Pursuer and having given the said Right upon the account of the said Relation he kept the same by him to the Pursuers behoove unless it could be made appear that the Doctor did any Deed to recal and evacuat the said Right The Lords repelled the Defence of not delivery in respect of the Answer Hatton Reporter Mr. Thomas Hay Clerk D. 273. Dowglass of Kelhead contra Carlyle and others eod die KElhead pursued a Declarator of Non-entry pretending that he was Superior of the Lands libelled In which Process It was Alledged That he was not Superior of the said Lands In respect the Right libelled that he had from my Lord Queensberry was to be holden of the Disponer and Queensberry being Superior to the Defenders could not interpose another betwixt him and them And upon the proponing of the said Alledgance the Pursuer was forced to reply upon a Right to the Casualities granted by a Paper apart by my Lord Queensberry to the Pursuer and thereupon Process was sustained and decreet given for the retoured dutie before the intention of the Declarator and the full Avail and Rent of the Land after the intention of the Cause Of which Suspension being raised upon these Reasons 1mo That after Decreet of Declarator was recovered the Superior and his Donator has Right to the Lands during the Non-entry and may remove Tennents or uplift the Duties from them but before Declarator there could not be a Sentence for Poinding the Ground for the full avail 2do Tho the Ground could be poinded for the full Avail yet the Pursuer has no Right but to the Feu-duties even after the intention of the Cause before the Pursuer did Found upon and produce the Assignation foresaid as his Right to the Casualities seing there being a question whether my Lord Queensberry or the Pursuer had Right to the
the Trust mentioned in the Bill was only to him as quilibet not as an Advocate D. 291. _____ contra _____ eod die A Discharge alledged granted by a Minister to one of the Heretors of the Paroch of a part of his Stipend was quarrelled as false and did appear to be vitiate in a process at the instance of the Minister for his Stipend And the user of the same being urged to abide by it did offer to abide by it with a quality viz. That the payment not being made by the Heretor himself but by his Tennent who took the said Discharge in the Heretors Name he did abide by the same a Write truely delivered by the Tennent The Lords did not sustain the said quality Unless the Heretor would produce the Tennent and abide by the same as being truely subscribed and not vitiate which the Tennent did D. 292. Key contra Her Creditors eod die THE Pursuer of a Bonorum having given her Oath that there was no fraudulent Deed done since the Disposition whereby the Pursuer cesserat and Disponed omnia bona It was urged That the Pursuer should declare also that no fraudulent Deed had been done by her to defraud the Creditors whether before or after the Disposition which was refused by the Lords in respect that the ordinary Oath given by such Pursuers did run in the Terms foresaid that they had made no fraudulent Right since the subscribing of the Disposition Some of the Lords were of Opinion that the Pursuer should have declared that she had done no fraudulent Deed at any time seing cessio bonorum is an extraordinary remedy indulged to persons who are become lapsi upon some extraordinary occasion wlthout their own fault or fraud and upon that account deserved favour which was not to be given to fraudatores who at any time had taken indirect wayes to prejudge their Creditors And if the Pursuer the very day before she subscribed the Cession and Disposition had made an anterior Right to prejudge her Creditors it were most inconvenient and absurd that her Oath should only be received in these Terms that she had made no Disposition or fraudulent Deed since the granting of the Disposition in favours of the Creditors And as to the pretence of custom and the conception of the Oath it ought not to be respected seing it cannot be said that the Oath of Bankrupts in the Terms that it is now urged was desired and refused and if there had been any defect in the conception of the Oath it ought to be helped D. 293. Bairdner contra ColÈier eod die IN a Process for abstracted Multures The time of the advising of the Cause these points were debated amongst the Lords viz. Whether or not the Right of a Miln being Feued by the Abbot in these Terms cum astrictis multuris did import astriction of all the Grains growing so that these that were astricted should be Lyable to bring all the Corns that grew upon the Lands to the Miln and in case any such be sold the Heretors and their Tennents should be Lyable for astricted Multures And 2. There being Decreets recovered at the instance of the Feuar of the Miln against the Feuars of the Lands for abstracted Multures of grana crescentia if the same should import Astriction as to all such Granes tho neither the Right of the Feuar of the Miln nor of the Heretors of the Lands be express of grana crescentia but only of the Terms foresaid cum astrictis multuris Some were of the Opinion as to the first point That a Feu of a Miln in the Terms foresaid cum astrictis multuris should import nothing else but that they that were within the sucken and astriction should be lyable only to grind at the Miln all such Corns that they should have need and occasion to grind Seing Thirlages are a most odious servitude and ought to be taken strictly And Multures being Moliturae and due for grinding they ought to be understood only in the case of Corns which the Feuers do bring to the Miln to grind or which they have need and use to grind and yet abstract and go to other Milns Otherwayes there should be no difference betwixt the Astriction of grana crescentia and an ordinary astriction 2. The case in question was of a Miln Feued by the Abbot of Culross and of Lands likewayes Feued by himself after the Feu of the Miln and the time of the Feu of the Miln Lands being the Abbots own either in mainsing or set to Tennents It cannot be thought that the Astriction was in other terms than such as Tennents are in use to be astricted to their Masters Miln and beside the Teind and Seed and the Duty payable to the Master which being payable to the Abbot the time of the Feu of the Miln was free of astriction the Tennent having the residue of the Rent for entertaining of his Family and for defraying the Charges of the Labouring and Servants Fies and other necessar Expences which could not be defrayed otherwayes but by selling some of the Corns growing It cannot be conceived that the Abbot or any other Master would astrict his Tennents in these Terms that they should be lyable for dry Multures except it were exprest and that the Astriction had been granorum crescentium Yet the Lords did demurr as to this point In respect it was vehemently urged by _____ that the Astrictions in the Terms foresaid ought to be understood of grana crescentia otherwayes it should be in the power of these who are astricted to sell all their Corns and to buy Meal for their Family and so to elude the Thirlage Albeit It was Answered That it was not to be presumed that Feuers or Tennents would do so and if they did they ought to be lyable for abstracted Multures effeirand to such quantities as were necessary and they were in use to grind for their Families Another point was Agitated and debate amongst the Lords viz. That the said Decreets could not be obtruded to the Defender seing neither he nor his Author was called to the same and res was inter alios acta But the Lords did not decide these points but recommended to some of their number to endeavour to settle the Parties D. 294. Oliphant contra _____ 7. July 1675. _____ Oliphant desired an Advocation from the Town _____ Court upon these Reasons viz. 1. That the Lybel was to be proven by the Defenders Oath which he was to qualifie And 2. That the Defender was to prove a Defence by the Pursuers Sons Oath who was out of the Country and the Town could not give a Commission for taking his Oath Both which Reasons were thought not to be Relevant and the Advocation refused In respect all Judges ought to receive Oaths with intrinsick qualities and Commissions may be direct by any competent Judge D. 295. Lord Halcartoun contra Robison July 1675. THE deceast Lord Halcartoun being oblidged by
And it was carryed by plurality that the Adjudication should be reduced Newtoun Reporter Mr. John Hay Clerk D. 388. Sheill Minister of Prestounkirk contra His Parishoners 28. November 1676. THE Lords Found That Viccarage Teinds are ruled by Custom and Local as to the Quota and Kinds and manner of payment of such Teinds as are truely Viccarage So far that in a pursute for Viccarage Teinds The Defenders Alledging that some of them had been in use of paying only some certain Kinds by the space of 20. Years The Lord Found the said Alledgance Relevant to free them of other Kinds Albeit they d d Reply that the Pursuer was in possession of the Kinds in question within the Parish some others of the Parish having been in use to pay the same And that Viccarage is nomen universitatis ut Baronia and possession of a part interrupts Prescription and is in Law Possession of the whole Newtoun Reporter D. 389. John Ker contra Jean Ker. eod die IN a pursute at the instance of a Donator It was Alledged That the Debt pursued for was Heretable quoad fiscum And it being Replyed That the Pursuer had Right thereto as Executor Creditor The Lords Found Process upon that Title tho supervenient The Testament being confirmed after the intenting of the Cause In the same Cause It was Found That a Testament being confirmed the nearest of Kin ipso momento has Jus quaesitum to that part of the Goods which belong to them and do transmit the same to their Executors and these who represent them tho the Testament was not Execute before the decease of the nearest of Kin And that the said Interest and Action being in effect a Legitima and competent to them by the Law and Act of Parliament is settled in their person and doth transmit tho the same be not recovered in their own time D. 390. Scot contra Toish eod die AN Assignation being made in Holland according to the custom there by way of Instrument under the Hand of a Notar a Tabellion having retained the Warrand in his Hands Signed by the Parties was sustained in respect of the custom and consuetudo loci Justice-Clerk Reporter D. 391. Drumellier contra E. Tweeddale 30. Novem. 1676. IT was objected against a Witness That he was Testis Domesticus being Servant to the Defender at least having been his Servant the time of the Citation Whereunto It was Answered That he was not presently his Servant and tho he was his Servant the time of the Citation he might now be a habile Witness The Reason why Servants cannot be Witnesses in behalf of their Masters ceasing in this Case viz. That their Masters might have influence upon them and that they may declare in their Favours out of fear to be put out of their Service And as to the pretence that it is presumed that the Defender put the Witness out of his Service of purpose that he might used as a Witness the same doth amount only to praesumptio hominis which cedit veritati And animus and design not being probable but by the Oath of the Party the Defender and the Witness were free to declare that he was not removed out of the Defenders Service upon the design foresaid And it was more strongly to be presumed that neither the Defender being a Person of Quality nor the Witness would perjure themselves It was farder urged That the witness was to be used upon a paper that had been produced after the intention of the Cause and for improving the Date of the same And that he was removed out of the Defenders Service befor the production of the said paper So that he could not have that prospect and design to use him as a witness and that he was removed upon the account foresaid The Lords before Answer Ordained that the Time of the production of the said paper might be tryed Redford Reporter Gibson Clerk D. 392. Grierson contra The Laird of Lagg 1. December 1676. A Superior having obtained the Gift of his own Ward did pursue his Subvassal at the instance of a Donator in Trust and to his behoof for Maills and Duties dureing the Ward And the Defender having Alledged That the Pursute was to the behoof of the Superior himself and that he or his Predecessor had Disponed to the Defender his Lands with absolute warrandice The Lords Found That the Gift of Ward being given to the Vassal did accresce to the Subvassal paying his proportion of the Composition Albeit it was urged that as the King might have given the said Gift to another he might have given it to the Vassal himself and he could not be in a worse case than another Donator And that the Subvassal knowing the nature of the Right that the Superior held Lands ward was Lyable to all Casualities arising ex natura rei to what Donator soever the same be given It was controverted amongst the Lords What should be the Ground of the Decision in point of Law And some were of the Opinion that it was upon that Ground that Jus superveniens accrescit the Lands being disponed to the Subvassal ut optima maxima But it was the Opinion of others That Jus superveniens accrescit when it is either of the Property or of any Servitude or of Casualities that had fallen before the Right granted to the Vassal but not of Casualities arising thereafter ex natura rei And therefore they thought that the Right should be found to accresce to the Vassal upon that Ground that the Relation betwixt a Superior and his Vassal and the mutual obligation fides betwixt them is such and so exuberant that the Superior should not take advantage of a Casuality fallen upon account of his own person and by his Minority And that a Right of Ward granted to the Vassal himself or to any other to his behoof is upon the matter a Discharge of the Casuality both as to himself and as to the Subvassal that is concerned in consequence Newtoun Reporter Haystoun Clerk D. 393. Home contra Scot. eod die IN a Process for Mails and Duties It was Alledged That one of the Defenders was in possession by the space of 7. Years by vertue of a Tack and had the benefite of a possessory Judgement And it being Replyed That he ought to say that he had a Tack from a person having Right And neverthess The Lords Found That is was sufficient to Alledge that he had a Tack and by vertue thereof in so long possession This Decision seemed to some of the Lords to be hard in respect a Tennent is not properly in possession but detinet to the behoof the Setter So that he could be in no better case than his Master who notwithstanding of his possession either in his own person or in the person of his Tennent cannot plead the benefite of a Possessory Judgement unless he had or should alledge upon some Right And if the Master were called as de facto
and in case the Father in Law should have Heirs Male within the space of six Years after the Marriage The Lords Found The said Provision copulative and that the Tocher should not return albeit the Father in Law had Heirs Male within the foresaid time Seing the other Member of the said condition did not exist In respect albeit his Daughter deceased within the said time yet she had a Child of the Marriage that survived Gosford Reporter Mr. John Hay Clerk D. 424. Jaffray contra Laird of Wamfray 12. Jan. 1677. A Sum due be a Bond bearing an Obligement to Infeft and Requisition was Found to be Moveable after Requisition and to fall under Escheat notwithstanding the late Act of Parliament Ordaining Bonds bearing Annualrent to be Heretable but remains still Heretable quoad fiscum In respect Bonds of the nature foresaid became Moveable by Requisition even before the said Act of Parliament And the Fisk since by the foresaid Act of Parliament is not put in better case is not in worse Glendoich Reporter Mr. John Hay Clerk D. 425. Inter eosdem eod die IN the same case It was Found That an Instrument of Requisition was Null because it did not bear that the Procuratory was produced And an Instrument being produced extended under the Notars Hand and being quarrelled upon the Ground foresaid The Lords did not allow the Notar to give out an other Instrument bearing the Procuratory to be produced nor did admit probation by Witnesses that the Procuratory was produced Seing such Solemnities are not presumed and cannot be proven by Witnesses but by valide and formal Instruments And a Notar having given out an Instrument that is defective cannot thereafter give an other to supply the defect Otherways the question being betwixt the Creditors who had done lawful Diligence and a Donator it should be in the power of a Notar to prefer and gratify either party as he should be prevailed with either to give out or not to give another Instrument D. 426. Inglis contra Lawrie eod die SOme of the Lords were of the Opinion that a Husband may give validly during Marriage to his Wife a Provision or Jointure where there is no Contract of Marriage But that the Wife could not give to the Husband tho there were not a Contract of Marriage and that she might revock any such Donation which appears to be hard and unequal Actor Colt alteri Dalrymple Mr. Thomas Hay Clerk But this Point was not decided D. 427. Fordel contra Caribber 16. January 1677. IN a Reduction at the instance of the Laird of Fordel against Monteeth of Caribber of a Disposition granted by Monteeth of Randyfurd to Caribber upon that Reason That the said Disposition was not delivered but was lying by the Defunct in his Charter Chest and blank in the Name and Date and that the Defender intrometted with the same unwarrantably and filled up his Name The Lords Ordained certain Persons who were going to France to be examined before Debate reserving to themselves to consider what their Depositions should work Tho it may appear hard that a Write should be taken away by Witnesses yet the Reason being relevant and in Fact and resolving in dole and Fraud it may be proven by Witnesses Mr. John Hay Clerk D. 428. Stewart of Ardvorlich contra Riddoch eod die DAVID Riddoch by Contract of Marriage betwixt his Son Alexander and Jonet Ballentyne did dispone to the said Alexander his Estate and thereafter did dispone the same to his second Son David Riddoch for payment and with the burden of all his Debts who did thereafter dispone the same to Stewart of Ardvorlich for a just price The said Stewart of Ardvorlich pursued a Reduction of the Disposition contained in the said Alexander his Contract of Marriage upon that Reason That the said Contract of Marriage was not delivered to the said Alexander at the least there being but only one double subscribed the same was given back to David Riddoch the Father and was lying by him the time of his decease And it was evident that it was never intended that any other use should be made of the said Contract but only in order to get a Marriage to the said Alexander as being provided to the said Estate in swa far as the said Disposition in favours of the said Alexander was without the burden of the Disponers Debts which were very great and did not so much as reserve his Liferent Whereunto It was Answered That the Contract was a mutual Evident subscribed by both Parties and that Marriage had followed upon the same and therefore it could not be taken away upon the pretence of not delivery The Lords Found That tho the Contract had been beside the Father the time of his decease it was not to be considered as instrumentum penes debitorem being a mutual Evident But thereafter It was Replyed That the Pursuer offered to prove that not only the said Contract was lying by the Disponer the time of his decease but an Assignation blank of the said Contract which being in the Disponers Hands was in effect a retrocession or Discharge of the Disposition contained in the Contract Which Reply the Lords found Relevant In praesentia This Reply was Found also probable prout de jure D. 429. Cuningham contra Halyburton eod die THE Lords Found That a Tacksman of Lands within Burgh may be removed if he be behind in payment of his Duty unless he find Caution as to the future in the same manner as Tacksmen of Land in the Countrey Forret Reporter Gibson Clerk D. 430. _____ contra _____ eod die THE Lords Found That a Burgess of the Town tho he be not Incola if he trade may be stented for payment of his Majesties Taxation D. 431. Earl of Glencairn contra Brisbain eod die THE Lords Found In the Case abovementioned Glencairn contra Brisbaine That the true Value of the Lands should be proven to the effect it may be known whether the Price be adequate or not And albeit the Lands had not been laboured by Tennents being still in the Heretors hands the Value might and ought to be proven by the soweing and increase and the quantity of the Land and what Lands in that part of the like quantity and quality may be set for And it was not enough that now the Earl of Glencairn offered 2000 merks more in respect the Lands might have been improven or the said offer might be made upon Picque or Emulation Hatton Reporter Mr. Thomas Hay Clerk In this Case the Lords allowed a conjunct Probation D. 432. Caribber contra Fordel 17. January 1677. THIS Day again in the Case abovementioned Caribber contra Fordel The Lords did Find upon a Bill given in by Caribber That albeit Write cannot be taken away but by Write directly and that a Disposition could not be taken away but by a Renounciation or some other Writt where there is no question as to the Validity and Formality of the same
of Teinds Ib. TailÈies 197. TailÈie altered 201. Teinds 202. Teind of Fish Ib. Proving the Tenor. Ib. Decreets for proving the Tenor. 203. Terce Ib. Territorium 205. Testament Ib. Testament Execute 206. Testament and the Wifes part Ib. Testes 208. Third and Teind Ib. Titles of Honour Ib. Titular 209. Tocher Ib. Quaestiones de Tractatu Suedico Bonis prohibitis Vulgo Counterband 210. Posterity of Traitors 214. Transumpts 215. Trebellianica Ib. Trust Ib. Trustees in Infeftments Ib. A Trustee committing Treason Ib. Tutors 216. Tutor and administrator of Law 217. Tutor Ratione Rei Ib. Tutory Ib. V. Re-entering of Vassals 218. Vectigalia Pedagia Ib. Vinco Vincentem Ib. U. Union Ib. Vniversalia Augmentum recipiunt 219. Quando Vniversitas delinquit Ib. W Wadsets Ib. Wadset Heretable or Moveable 220. Wadset proper Ib. Ward 221. Ward Lands 222. Taxt Ward 223. Warrandice Ib. Infeftment of Warrandice 224. Waste Ib. Witnesses Remitted Ib. Witnesses in case of Treason Ib. Women Witnesses Ib. Obligements to employ Sums of Money for Provision of Wives 225. A Womans Jointure Ib. Woods 226. Wrack Ib. Z. The case of the Admirality of Orknay and Zetland Represented in behalf of the King in Answer to the Duke of Lennox's Claime thereto Ib. ERRATA in the Doubts c. PAge 2. lin 16 after posterior add first p. 10. l. 21. given read got p. 16. l. penult dele or p. 19. l. ult place the comma after only p. 23. l. 8. right r. burden p. 25. l. 3. was r. is Ibid. dele and. p. 26. l. 13. after Disponner add a me de me p. 61. l. 22. r. in comperto p. 82. l. 11. of Kin r. Heir of TailÈie p. 83. l. 12. after unles add TailÈied p. 84 l. penult Males ls 1. Males are p. 99. l. 19. after use add of p. 102. l. 29. 1. Confirmatione p. 114. l. 7. aditur r. auditur ibid. l. 41. r. pertinebat p. 122. l. 20. nor r. but. p. 130. l. 7 Immediate r. mediate p. 133. l. 10. against the Price r. against the Buyer p. 170. l. 45. r. oblectari p. 184. l. 11. null r. Moveable p. 195. l. â—9 second r. first p 198. l. 8. dele male p. 218. l. 14. after but add If SOME Doubts and Questions IN THE LAW Especially of SCOTLAND A. Adjudications BY the Act of Parliament upon Comprisings or Adjudications for a Sum of Money The Superior may be forced to enter or to pay the Debt Quaeritur If he may be urged to enter upon Adjudications proceeding upon Dispositions in prejudice of the Superior by obtruding a Vassal seing in that case he has not Retractum Feudalem A Vassal having made a Disposition or granted a Bond for Disponing his Lands will the Superiour be obliged to Infeft upon Adjudication Ratio dubitandi That the Superior by the Act of Parliament is obliged only to Infeft Comprysers or Adjudgers being Lawful Creditors and he has Retractum Feudalem paying the Creditor And the Debitor has Retractum Legalem which is not in the case of Dispositions If Lands should be Adjudged from the Appearand Heir of Ward-lands Whether will the Appearand Heirs Marriage be due and affect the saids Lands in prejudice of the Adjudgers Answer Albeit that it appears that Marriage should be of the nature of Ward which is not Real as to singular Successors the Superior having only Right to the Duties which he may uplift And ex stilo of a novo damus Marriage is not reckoned amongst real Incumbrances Yet in the case of Thornidikes the Lords has found Marriage Real Whether as Reversions that are comprysed need no Intimation In Respect of the Series of Solemnities that is in Comprysings By which they become so publick that they are presumed to be known to the Person Lyable If there be not Eadem Ratio in Adjudications being now of the nature of ordinary Decreets If at least there be a difference betwixt Bonds and Reversions So that as to Bonds when there is a Competition of Two Comprysers The Posterior intimating should be preferred If Superiors who are Subjects only will be obliged to receive Adjudgers to be their Vassals having Adjudged not for Debt but upon Dispositions And if the King be in another Condition If upon a Disposition The Receiver should obtain Sentence for Damnage and Interest against the Disponer his Heir for Implement If in that case the Adjudger ought to be received Ratio Dubitandi That Primordium inspiciendum est and upon the matter there was not a Debt ab initio If a Reduction Ex capite Minoritatis not being intented at the instance of the Minor Jus Actionis may be Adjudged An Heretable Bond being Adjudged Though there be no necessity of Intimation because Adjudications and Comprysings are publick Rights upon Record Quaeritur If the Debitor paying bona fide to the person to whom he granted the Bond will be in Tuto the said Adjudication not being intimate Answer It is thought that he should be in Tuto seing Intimations are required for Two Effects Viz. Either to compleat the Right be Assignation or to certiorate the Debitor that he make payment to no other person And though an Adjudication be sufficient as to the said first Effect an Intimation is necessary as to the other unless the Debitor be called in the Adjudication Advocation by the Justices IF the Justices may Advocate to themselves Criminal Processes depending before Lords of Regality or other Judges It is thought The Lords of Justiciary cannot Advocat The taking or Advocating Processes from a Competent Judicatory upon Reasons of Advocation being a Power and Prerogative belonging to his Majestie 's Supreme Judicatories of Session and Council And Reasons of Advocation either upon Suspicion or some other Reason meerly Civil or of State belong not to the Cognisance of the Justices but to the Lords of Session and Council If they were to Advocate the Reasons of Advocation behooved to be first discust and what could be the method since all Processes before the Justices are so peremptory That Caution must be found both by the Pursuer and Defender Alimenta COnstituto semel Alimento quo nihil in jure magis favorabile aut magis personale de eo nec Alienatio nec Transactio rité celebratur datur enim ut persona exhibeatur utcunque vitam toleret Mirum igitur Advocatos primi ordinis tanto conatu boatu summa ope annisos ut Judicibus persuaderent aut imponerent asserentes Alimentum uxori constitutum juri Mariti obnoxium esse vel saltem creditoribus Mariti esse integrum illud afficere Quod enim ossibus haeret nec a persona cui competit avelli aut alienari potest illud nec juris Ministerio aut fictione transfertur Quum igitur Alimentum adeo personale sit ut superius diximus ut alienari nequit ita ut ab uxore nubendo in Maritum non possit transferri tacitâ quasi alienatione Sublato autem
jure Mariti jus Creditorum quod subit in consequentiam ut accessorium corruit nec subsistit magis quam accidens sine subjecto Broomhall contra Darsie Julii 7. 1678. Altarage SOme Lands being Founded by a Burges of Dumfermling to an Altar in the Church of Dumfermling for Maintainance of a Chaplain at Saint Marys Altar there And it being provided by the Foundation that the Founder and his Heirs Male should Present the Chaplain The said Lands being after Fewed and since Disponed Quaritur How shall the purchaser be Infeft This case is not under the Act of Parliament anent Laick Patronages The case there being of Patronages whereof there is Infeftment holden of the King whereas the Patronage in Question is not by Infeftment but provision as said is It is thought that the Chaplain is Superiour And if there be none a Chaplain should be presented Caribber Quaeritur The Patronage being to the Heirs Male of the Founder and if they do not present within _____ Days The Dean of Gild of that Town should present Whether the Heir-Male may Dispone the Patronage Ratio dubitandi The Provision in the Foundation is not in favours of Assigneys and the Founder had confidence only in his Heirs And such an Interest being Religious and provided to a Family with the said substitution is not in commercio Randifurd Annexation to a Barony in another Shire WHat is the effect and import of Annexation of Lands lying within one Shire to a Barony lying within another Whether it be Annexation only that one Seasin may be sufficient for all the Lands though in several Shires Or that Inhibitions and other Diligence should be used at the Mercat-cross where the Barony lyeth Annualrent AN whole Barony of Land being affected with an Annualrent and being thereafter Disponed in several parcels to diverse persons If one of the saids Purchasers should be distressed for the whole Annualrent May he have recourse against the others for their proportional parts they being in rem correi debendi A Person being Infeft in an Annualrent irredeemably so that neither the Heretor may Redeem nor the Annualtenter may require his Money and the Annualrenter not being Creditor but upon the matter Emptor annui reditus Quaeritur Whether such Annualrents will be lyable to subsequent Laws restricting and lessening Annualrents Ratio dubitandi These Laws do militate only in the case of Mutuum which is not here There being neither Sors nor Vsura nor Debitum as to the principal Sum And though such Annualrents be constitute with a respect to the Sum that was payed and the Annualrents thereof current for the time That does not alter the case seing the property of Lands is only bought with the like consideration And the Annualrents of Money might have been heightned and the Annualrenter wants the benefite competent to him in the case of mutuum viz. In the case of Money lent out for Annualrent he might uplift the Sum and employ it more profitably than for a small Annualrent An Annualrent being Disponed to be uplifted out of Lands and Teinds and Infeftment following thereupon Quaeritur What will be the Effect of the said Right as to the Teind seing the Ground cannot be Poinded for the same these not being Fundus Answer The Right of the Teinds may be apprysed and a personal Action will be competent against the Heritor of the Teinds during his occupation An Annualrent being disponed to be by Infeftment out of several Lands lying discontigué Quaeritur If the Disponer may unite the same so that one Infeftment taken at one of the Lands may be sufficient for the others Annualrent for Damnage Quaer IF the Defender should be lyable for Annualrent of the price in so far as it is more nor the Worth of the Lands It is thought Not because the Rate is not certain and the Defender may get a Buyer at the same price And that the Defender was in bona fide to contract with a Pupil so authorized and if he have prejudice he should have recourse against his Tutors Representatives And Annualrent is not due for Damnage and Interest until it be declared Tweeddale contra Drumelziar vide Reduction upon Minority litera M. Right of Annualrent A Person having disponed Lands with a Procuratory of Resignation and Infeftment to the Buyer of the Lands and for security to himself of a part of the Price for an Infeftment of Annualrent redeemable upon payment of the Sum and with a Clause likeways that the Infeftment shall expire Quaeritur 1. If there be prejudice to the Buyer that his Right should be so affected being his Ground-right Answer It is thought there is none Seing upon payment if the Party desire There may be a Renunciation upon the back of both Charter and Seasin relating to another of the same Date to the effect it may be registrate 2. Quaeritur If the said Right being to be holden of the Superior may be extinguished without Resignation Answer It being only a redeemable Right after Redemption in strictness of Form cannot be resigned because it is loused And formerly in Wadsets of Property the Superior upon the Redemption did grant Precepts and a Right of Annualrent cannot be resigned for a new Infeftment given to the Heretors Superior that being inconsistent with the Property in one Person And therefore a Decreet of Redemption with the Clause foresaid Resolutive in case of Redemption relating to both doth sufficiently extinguish it And if there should be a Resignation in the Superiors hands it should not be in favorem for the Reason foresaid or ad Remanentiam But to the effect the Annualrent might be renounced and consolidate with the Property with the Superiors consent Relicts Annuity WHen a Husband is obliged and his Heirs to pay an Annuity to his Wife in Liferent If other Creditors be about to do Diligence and Comprise after his Death Quaeritur If the Relict may not pursue the Heir to secure her and for that effect to grant Infeftment of Annualrent and upon a Decreet Adjudge an Annualrent upon that Ground Quando aliquid conceditur aut disponitur conceduntur omnia sine quibus non potest explicari And the Obligement for the Annuity will be otherways Void Annus Vtilis ANnus utilis Duplex est 1. Ratione initii ut initium sit utile postmodum Dies continui 2. Ratione omnium dierum ut actor habeat potestatem agendi reus respondendi Dies sint judiciales Thes Besold in Lit. I. 51. vid. Injuria Appellatio APpellatio non permittitur in foro Saxoniae sed in ejus locum successit Leuteratio ad eum finem introducta coram eodem Judice ut gravamina errore forte litigantium vel negligentia Judicis illata brevi manu reparentur sed hujus rei abusus perspicuus est Vide Leuteratio Besold Thes Litera l. 53. Appellatio a Camera Imperiali APud Germanos cum sit ultimum Judicium Camera ab ea
non appellatur ne tamen sua potestate abutatur constitutum est judicium Revisorium ad quod ij qui per iniquitatem aut negligentiam Assessorum laesos se existimarent provocare Revisionem petere possent per Commissarios Imperatoris Statuum Imperii ad id deputatos adversus sententiam sine dolo non tamen sine errore aut culpa latam Fritschii Exercitat juris publici pars 2. exercit 1. n. 88. sequen Revisio habet effectum Executionis suspensivum 91. Ibid. Judicium Camerale cum non a solo Imperatore sed a Statibus suam acceperit authoritatem tum Imperatoem tum Status repraesentat Ibid. n. 83. Camerae Praesidem Assessores initio constituebat Imperator sed Ordinibus consentientibus id deinceps mutatum ut Assessores ab Ordinibus praesentarentur Ibidem Imperator causas in Camera caeptas avocare non potest quia per modum Contractus in ordinationem Camerae consensit ideo ad ejus observantiam de jure tenetur Ibid. n. 84. De Appellatione a Praefecto Praetorio aliorum Judicum Sententiis LIcet ab iis ob eorum Excellentiam non liceat provocare iis tamen qui Laesos se affirmant supplicandi Licentia permittitur remedium datur per Supplicationem ex gratia non per viam Restitutionis ex Justitia praesertim cum sententia lata est contra Jus Litigatoris Thes Besoldi p. 557. litera L. Appellatio a Vicario AVicario ad eum cujus est Vicarius non appellatur cum utriusque idem sit Tribunal L. Romana 3. de appellationibus sexto Decret L. 1. 2. Cod. De Officio ejus cujus vice alter judicat Sigismund Scaccia de Appellationibus q. 8. n. 61. Approbatio 1mo Nulla Exceptio aut allegatio in foro magis trita aut frequentior est illâ de Approbatione aut ut loquimur de Homologatione quae illâ regulâ niti videtur quod approbo non reprobo Sed cum omnis definitio in jure sit periculosa ista ut omnis materia Brocardica variis substringatur limitationibus aut enim Approbatio juris alicujus celebratur expressâ ratificatione id agitur ut approbetur eo casu reprobare quod approbavit nulli licet nec honestum est aut aliud agitur sed ex actu colligitur infertur approbatio eo casu dispiciendum quid actum actus agentium ultra eorum mentem intentionem haud operantur v. g. Emi praedium ratus illud ad venditorem pertinere ut optimum maximum nec Servituti aut Reversioni ut loquimur seu Retractui obnoxium emersit adversarius Sempronius asserens servitutem aut jus praedii Reluendi sibi competere ejus vel potentiam veritus vel alia ratione impulsus cum eo transegi isto jure vel mihi cesso vel acceptilato sed Titius idem jus servitutis aut Retractus ab eodem authore adeptus sed potius quia anterius Si ex eo contra me ageret mihi contra jus Retractus aut servitutis excipienti haud obtrudi posset me jus homologasse approbasse eo quod cessionem aut acceptilationem ejus stipulatus fui ea enim transactione id tantum agebatur ut litis ansâ praecisâ conditio mea melior non deterior foret ut mihi consulam acquirendo jus si quod erat penes Sempronium non vero ut jus aliquod a me alienem 2do Eadem ratione si juris mei ignarus praedium meum conduxi aut post locationem Dominium ejus nactus domini forte haeres sum in possessorio locatore de mercede agente de jure meo exceptio haud admittenda est nemo enim sibi causam possessionis mutare potest nec minus possessione reddita jus meum integrum illibatum superest nec in petitorio aut declaratorio obest conductio aut exceptio Quod approbo non reprobo conducendo siquidem praedium quod ignarus meum esse alienum rebar locantis id mihi erat propositi ut jus in eo consequar non ut jus in alium transferam consensui sine quo nec est nec esse potest alienatio nil magis contrarium quam error Arrestment IF Arrestment be Pignus Praetorium and doth so affect that in whatsoever hands the thing arrested cometh it will be lyable thereto Or if it be only a Diligence and upon the matter of the nature of Inhibition in mobilibus so that the Debitor dying or the subject that is arrested being Poinded or Comprysed the Arrestment will be ineffectual If the Goods in the Hands of the Debitor upon Arrestment may habili modo be craved to be forthcoming Or if habilis modus of all Goods but Money be to Poind or Apprise the Propriety of Corpora being only transmitted per Traditionem If Arrestment upon a registrate Bond may be loused being before the Term of Payment Whether where there is nothing due by a Person in whose hands Arrestment is made the time of the Arrestment the same will affect a supervenient Debt If Arrestment die with the Debitor or doth affect after his Decease If a Bond for lousing Arrestment be void through the Debitors Decease If at least an Arrestment upon a Decreet be of an other nature than that upon a Dependence being in effect Pignus Praetorium and Execution pro tanto or if it should be at the most like a Denounciation whereupon Comprising has not followed in the Defuncts time which therefore is void Albeit an Arrestment doth not import a Right of Hypotheck and that notwithstanding an other Creditor may poind Quaeritur If at least it should have that Effect That the Person in whose hands the Arrestment is made cannot pay the Debitor in prejudice of the Arrester and that as he cannot pay the Debitor so after his decease he cannot pay his Heir nor Executor being eadem Persona Executors being in Competition upon Arrestment to make forth-coming Whether they should come in all pari passu notwithstanding some be before and some after as in the Case of Comprisings being both at one time though the Denounciation be at several times Quaeritur If an Arrestment doth affect Debts due by the Person in whose hands the Arrestment is made contracted after the Arrestment Ratio Dubitandi Inhibition doth affect Lands acquired thereafter and Arrestment as to such things as are the Subject of Arrestment is of the nature of Inhibitions and there is eadem ratio as to the Interest of the Creditor Arrestment being made of a Sum due by a moveable Bond bearing Annualrent and of all profits due to the Debitor by the said Bond. Quaeritur Whether the said Arrestment should be effectual not only for the Annualrents already run but these that should accrue thereafter The same Question may be as to duties of Lands Ratio Dubitandi Quod non est aut nullum est nullum sortitur
of Pasturage or Commonty due to me out of Neighbouring Lands which the English call Common Appendant will the Servitude extinguish if I purchase the saids Lands seing res sua nemini servit Answer It is thought that it is Suspended but not extinct So that if the Purchaser sell the Lands affected with the Servitude it will revive unless it be provided otherwise And Servitudes of that nature are Real and pertinents Praediorum non Personarum Communio COmmunis Possessio quâ vel ad pasculandum vel ad alios fructus participandos vicini utuntur non caret Litigiis Divitibus proportionem Geometricam pauperibus Arithmeticam affectantibus Sed possessio Geometrica servari debet Praedialis ita ut qui majores habet possessiones magis utatur pascuis qui minores minus Jus Fluviat p. 561. n. 25. Compensation IF there may be Compensation on a Bond prescribed For that reason Viz. That quae sunt temporalia ad agendum they are perpetua ad excipiendum And the ground of Prescription as to Personal Actions being Negligentia petentis cannot be pretended in this case the Defender being satisfied in his own hands When in Processes for Sums of Money Compensation is proponed and the Pursuer Replyes upon Recompensation and the Defender again Duplyes upon Recompensation Quaeritur what course shall be taken by the Judge upon their several Recompensations Answer If it appear that the Pursuer or Charger is addebted in as much to the Defender as the Defender to him all the Compensations being considered the Defender ought to be assoiled and the Parties hinc inde should be decerned to give up and discharge the Grounds of the Compensation And if all the Compensations being sustained the Defender be found debitor to the Pursuer a Decreet should be given for what is due And if the Pursuer be found debitor to the Defender the Defender ought to be assoiled and the Pursuer decerned to pay what he is owing An Assigney to a Debt for an Onerous Cause having pursued for the same Quaeritur If it be alledged that the time of the Assignation the Cedent was the Defenders debitor and that he hath present Action for liquidating his Debt Whether ought Compensation to be sustained upon the said Ground and a time granted to liquidate It is thought That the Cedent not being Inhibite nor any Diligence done against him the Sum assigned was in Commercio and might be disposed of by him there being then no ground of Compensation which is de liquido in liquidum and otherwise non tollit obligationem vide Retention in Litera R. Composition for Entry IF the Superiority be disponed or comprised after Resignation Quaeritur Whether what is payable for receiving of the Vassal should belong to the former Superior Or to his Successor by whom he is to be received being pretium of his Entry Compriser IF after expiring of a Comprising the Compriser may pursue for the Evidents being incidents to the Right Comprising IF a Bond for an Onerous Cause being granted by a Person not Inhibited and publick Infeftment thereupon be preferable to a Compriser who had comprised before but was Infeft after the Bond If a Compriser of Ward-Lands die before the expiring of the Legal Will the Marriage of his Heir fall If it fall Will the Debitor if he redeem be lyable to refound the Avail Comprisings of Heretable Bonds though they be upon the matter Legal Assignations so that the first Compriser will be preferred to the second intimating in respect of the previous publick Solemnity in deduceing Comprisings Yet Intimation is necessar to put the Debitors in the Bonds comprised in mala fide If there be a necessity of a Declarator of expiring a Legal as there is of a Conventional Seing in many Cases there may be much Equity for purging the expiring as if the Sum be all paid but a very little part and the Lands exceed much the Debt If the Compriser come to be Debitor in a Sum equivalent Will the Compriseing expire The first Compriseing being reduced at the instance of a posterior Compriser ex capite Inhibitionis Will the first Compriser have Right to the Legal of the second Though the Debitor be Inhibited May he not assign the Legal If Compriseing whereupon Infeftment is not to follow and which formerly needed not to be allowed ought to be Recorded conform to the Act of Parliament 1661. Act. There being a Compriseing against a Principal and two Cautioners of their respective Lands and the Right of the said Compriseing being acquired by a Person who had bought one of the Cautioners Lands If that Person should dispone the Right of the other Lands with the Compriseing Sums and Grounds thereof as to the said other Lands only before the expireing of the Legal Quaeritur 1. If he hath not reserved expresly the Compriseing and Sums thereof as to his own Lands but has only disponed in the Terms foresaid Will the Compriseing extinguish as to his own Lands seing it could not subsist without the Grounds and these are disponed Answer It is thought It will not extinguish in respect the Compriseing is not simply disponed but only as to the other Lands and the same not being disponed as to his own Lands eo ipso it is retained together with the Grounds and it was Actum that the Disponer by acquiring the Compriseing should be thereby secured as to his own Lands And having disponed the same as to the said other Lands Law presumeth that he has retained it as to his own Lands in the first place and that it should be effectual as to the other Lands in the second place And Acta agentium are to be understood to operate according to their Intention Quaeritur 2do If the Compriser of that Legal should Redeem who should have right to the Sums whether the Disponer or these to whom he has disponed as to the other Lands at least to a part of the same Answer If the Disponers Interest as to the Security of his Lands amounts to or exceeds the Sums he will have Right thereto entirely seing he is to be secured in the first place If a Comâ—riser Infeft in Lands doth consent only to a Right made by the Debitor of a part of the Lands comprised will that Consent secure the Buyer against the singular Successors of the Compriser having Right from him by Compriseing or Disposition and Infeftment thereupon Seing they may pretend that a Consent doth not denude habili modo A Creditor comprised the Principal Debitors Lands and some time thereafter the Cautioners Estate and after the Compriseing against the Principal was expired But yet the Compriseing against the Cautioners was running he disposed of some of the Principals Lands Quaeritur If the Cautioner may plead that the Compriseing against him is extinct In swa far as the Creditor has an irredeemable Right to the Principal 's Estate Exceeding his Debt and is satisfied at least may be satisfied with
his Intromission and disposing of the same A Compryser after expiring of his Comprysing of his Debitors Estate exceeding the value of his Debt Intrometting with or disposing of a part of the same Quaeritur If he may Compryse any other Estate belonging to the Debitor Upon pretence that he is not satisfied Or if the Expiring of the Comprysing and the making use thereof thereafter putteth him in the same condition as if the Lands had been Disponed to him irredeemably and datae and accepted in solutionem So that both Principal and Cautioner against whom a Comprysing is yet running may pretend that the Debt is satisfied At the least that the Creditor should denude himself of that Comprysing cum omni causa Lamertoun contra Mr. John Fairholme A Compryser of Lands holden Ward being Infeft Quaeritur If these Lands will ward by the Decease of the Compryser And if the Marriage of the Appearand Heir will fall Ratio Dubitandi A Compryser is but an interim Vassal for security of his Debt And upon that Consideration such a Right in England is considered as a Chattel If the Comprysing be redeemed will the Debitor be Lyable to refound the Damnage sustained by the Ward and Marriage Quaeritur If the Ward of the Comprysers Heir will determine and expire upon the Redemption Quid Juris in that case of proper Wadsets if the Debitor after Redemption will be Lyable to Refound the foresaid Damnage The difference being that a Comprysing is an involuntar Right and the Wadset Voluntar so that the Creditor seemeth to take his hazard If Lands be Comprysed from a Person who has no Right thereto for the time but acquires thereafter a Right whether the said jus superveniens will accresce If there be a difference betwixt a Compryser and a Buyer from an interposed Person who has acquired a fraudulent Right Viz. That a Buyer acquires a Right for an Onerous Cause and it is just and the Interest of Commerce that he should not be prejudged whereas a Compryser does only Diligence upon his own hazard and the Right Transit cum sua causa labe A Right being acquired bonâ fide from a Person not Inhibited after Comprysing and being Infeft before the Compryser Quaeritur Whether he or the Compryser will be preferable Answer The Lords found in the case of Sir Patrick Nisbet and Hamilton That the Compryser should be preferred Which appears to be hard seing a Comprysing is only jus ad rem and a Legal Disposition And the first compleat Right by Infeftment seems to be preferable and a Comprysing does not import vitium Litigiosi seing the Debitors Right is without Question And the Question is whether the Compryser or the Receiver of the Disposition should have Right to that which is unquestionable in it self The Debitor or these who have Right to the Legal Redeeming from the Appearand Heir of the Compryser whether doth the Redemption sist the course of the Ward and Marriage if the Heir be not Fourteen Years of Age Answer Affirmative quia resoluto jure principali resolvuntur consequentia Will not the Debitor be lyable not only to pay the Debt but to refound the prejudice the Creditors Heir sustains upon occasion of the falling of the Casuality of Ward and Marriage by the Decease of the Debitor Answer Affirmative and the Creditor and his Heirs should be Indemnes It being the Debitors fault that they are forced to Compryse and that the Comprysing is not Redeemed Whether a Discharge does extinguish a Comprysing the Creditor granting to be satisfied In the same manner that Intromission within the Years of the Legal doth extinguish the same Answer If there be no Infeftment a Discharge is sufficient But if there be Infeftment there must be at least a Renounciation Registrate in the Register of Reversions A Comprysing being Redeemed whether doth the Debitors Right and Infeftment revive or must there be a new Seasin and what way shall the Debitor be Reseased Answer There must be a new Seasin and the same way is to be taken as in the case of a Regress Seing the Compryser as he has a Legal Reversion so there is a Legal Regress Quaeritur If a Comprysing as to all effects be equivalent to a Resignation Ratio Dubitandi That a Comprysing is not only a Legal Disposition but the Compryser may be immediatly Infeft upon the same as upon a Resignation though the Debitor decease If a Compryser get a Right to the Legal of his own Comprysing before it expire by another Apprysing And so Deinceps if there be more Comprysings whereof the first Appryser obtains Right within the Respective Legals Quaeritur when the same doe expire Cogitandum If a Royal Burgh or others having Power to receive Vassals upon Resignation has Power likewise to receive upon Comprysings And if in that case any Composition be due to them If the Lands be Comprysed how shall the Duties be divided Answer If any part of the Lands be sowen before the Comprysing the Encrease will belong to the Compryser And if the Lands be set the time of the Comprysing is to be considered For if the Comprysing be before Whitesunday the Compryser will have Right to the whole Duties And if it be before Martinmass he will have Right to the half And if after Martinmass to no part thereof The Superior being charged with Horning to receive a Compryser and being Denounced will he be Lyable for Damnage and Interest if either he Infeft a second Compryser or a Precept be direct out of the Chancery for Infefting him If upon the Redemption of a Comprysing the Superiors will be obliged to Infeft the Redeemer Gratis Quid Juris If the Redeemer be another Creditor Quaeritur If Comprysings be equivalent to Dispositions and Resignation following upon the same so that the first Compryser is preferable to others even before Infeftment Answer That Comprysings are only Legal Dispositions and do not denude the Debitor without Infeftment whereas Resignation being made in the Superiours hands and accepted doth denude What is the reason then that after Comprysing it is found that the Debitor not inhibited cannot Dispone in prejudice of the Compryser Answer That the Law and the Judge who is Lex animata having in subsidium Disponed to the Creditor the Debitors Lands the same is so affected by the Legal Diligence that the Debitor is denuded as to that effect that he can do no voluntar deed to prejudge the Creditor Without prejudice nevertheless of more exact and compleat Diligence of other Creditors who obtaining Infeftment will be preferred to the first Compryser as in the case of Moveables after Arrestment the Debitor cannot dispone the same and yet may be Evicted by another Creditor by way of Poinding If a Superiour be content to take a Right to a Comprysing of Lands holden of him not being willing to enter the Compryser Quaeritur If he may claim a Years Duty when the Lands are Redeemed Answer Negative And he is in
Marriage and disponed the same to the Son of the third Marriage Quaeritur If the Heir of the first Marriage may reduce that Right as given without an onerous Cause in his prejudice being a Creditor by that Clause of his Mothers Contract of Marriage Ratio Dubitandû It is pretended not to be free Conquest the Father having contracted Debt thereafter above the Sum of that Room Whereunto it was Answered That the said Room was Conquest the price being then paid and the Debt contracted thereafter A Merchant being obliged to provide the Conquest during the Marriage to himself and Wife and the Bairns of the Marriage Quaeritur 1. Whether Conquest being Vniversitas will fall under the Executory of the Bairns though the subject and what will fall under the Conquest be moveable 2do The Conquest being provided so that the Right should be taken to the Husband and Wife and Bairns of the Marriage whilk FailÈieing the half to the Husbands Heirs and the half to the Wifes Heirs Whether the Husband be Fiar and the Bairns only Heirs of provision though the subject be Moveable Though the Husband be Fiar if he can Dispone the Conquest without an Onerous Cause or provide the same to other Heirs in prejudice of Bairns being Creditors by such Provisions The Husband being obliged in these terms to provide the Conquest viz. Lands Heretages and Annualrents and other things And to take the Rights in manner foresaid Quaeritur If the General other things be comprehensive of Moveables there being no mention of Sums of Money or Moveables And it seems that Conquest is to be understood properly of Heretable Interests of which only and not of Moveables Rights are taken And other things may be understood of things Homogeneous and of the same nature that the things expressed in particular are of Viz. Heretable as Reversions Tacks c. If at least Bonds bearing Annualrent though Moveable will fall under the conquest Seing Rights are in use to be taken thereof And by the Law they belonged to Heirs before the statute This and the Four preceeding Questions are in the case of Andrew Bruce and his Conquest during the first Marriage The ordinary Clause of conquest in favours of Wives being of Lands Heretages Annualrents Quaeritur If Bonds being Heretable because Executors are Excluded will fall under the same Answer It is thought not Because the Subject is only Lands Heretages and Annualrents whereupon there is or may be Infeftment And Heretages comprehends only Lands Teinds and such Rights as are real by Infeftment or otherwise or whereupon Infeftment may follow Consensus USV receptum est ut in terrarum aut nominum jurium alienationibus Cessionibus praeter contrahentes alii interveniant pro interesse consensum accomodent subscribant contractibus instrumentis Sed quisnam Consensûs effectus esse debeat ambigitur quibusdam videtur consentientes contractus quibus consenserant haud reprobare nedum ut rescindantur agere posse juxta tritam juris regulam quod approbo non reprobo Alii opinantur cum nihil juris disponant ant tribuant consensum haud extendi ultra id quod actum aut cogitatum viz. Vt si quod jus eo tempore quo consensum adhibuerant suberat aut juris umbra ejus ratione aut praetextu Litem aut quaestionem intentare nequeant Salvâ tamen libertate commercii jura si quae sunt penes alios quam contrahentes potiora acquirendi aut in ea succedendi Iis ex intervallo post facto adeptis consensum haud obesse Cogitandum an ea sit commoda distinctio consentientes si in alia jura postea succedant iis uti posse quae enim consentientibus tunc temporis haud competebant sed postea nec opinantibus forte jus detulit ea antequam penes eos forent consensu ase abdicasse nec verisimile nec credere par est Qui autem juri in alium transferendo consensit si ejusdem rei jus melius penes alium esse compererit sponte operâ suâ acquirat ex eo adversus eos qui ipso consentiente jus alterum quaesierant agere haud audiendus Nec enim juri nec bonis moribus consentaneum est quod approbavit aliquid moliri aut quaerere quo illud posset reprobare aut rescindere Broomhall contra Lady Darsie Consensus Domini COnsensus assumit naturam actus super quo interponitur Sicut stipulatio quae est stricti juris interposita contractui bonae fidaei Bes Thes liter L. p. 552. Dominus consentiendo non praesumitur juri suo velle praejudicare sed solum obstaculum quod scilicet jus vasalli sine Domini Consensu alienari non poterat removisse Et remissio juris sui non praesumitur nisi verbis apertis de eâ constet Ibidem P. sequen Regula quod Domini consensus juri ipsius nihil officiat procedit tantum in illis juribus quae Domino consentienti competentia separatam habent rationem a negotio cui consensus accedit non autem in his quae ad robur firmitatem actus pertinent Idem p. 554. Consent QVaeritur If an Appearand Heir consent to a Disposition made in Lecto after the Decease of the Granter may another Heir quarrel the Deed upon pretence that the Consenter was not served Heir at any time Ratio Dubitandi The Consent of the Appearand Heir the time of the granting the Right doth so validate the Right that all Heirs are precluded from questioning it And there appears to be the same reason when the Consent is supervenient If the Consent will import Behaving A Person being Infeft in an Annualrent to be holden of the Disponer and in possession by payment of the Annualrent Consents to a Disposition of the Lands Quaeritur If that Consent will prejudge a singular Successor The Disposition being neither Registrate in the Register of Reversions nor the Seasin upon the Disposition relating to the Consent If the Consent of a Person having Right by Disposition whereupon Resignation has followed will prejudge a singular Successor In what cases Consent to a Right will prejudge singular Successors Answer It is thought that where there is no Infeftment and the Consenters Right may be transmitted by Assignation or Discharged such a Consent may prejudge singular Successors And will amount to an Assignation or Discharge If a Consent of a Party having only Right to a Reversion will prejudge a singular Successor unless it were Registrate Anent Consistories Whereby the Vsefulness and Necessity of these Courts is evinced and Doubts and Prejudices against them are Cleared THE Question whether a Judicatory be useful and necessary and therefore to be Instituted If it be not and continued if it be already erected or unuseful and therefore to be suppressed Cannot be defined well à priori but from the nature of the Subject and Causes which are agitate in the Judicatory And if the Subject be necessary and favourable
not Diligence within three Years Persons convict of Capital Crimes A Person being convict of a Capital Crime and the Escheat of his Moveables therethrough falling to the King and he being keeped in prison many Years without a Remission and dying in that condition Quaeritur Whether the Rents of his Lands in the interim not uplifted will belong to the King and his Donator or to the Heir Ratio Dubitandi His Escheat is only of what he had the time of the Sentence after which he became civiliter mortuus and being nullus in Law he had nothing to loss And the King by his Indulgence could not prejudge his Heir unless he had granted him a Remission restoring him against the Sentence Quaeritur quid Juris If after he is convict he should commit Treason whether he might be Forefaulted in prejudice of his Heir Curator A Female Minor being Married Quaeritur If the Office of her Curatory doth expire Curatores ad Lites JVre Saxonico Faeminae sunt in perpetua Tutela sed isti Curatores non habent Administrationem ideo Rationes non tenentur reddere adhibentur enim tantum pro consilio assistentia ad integrandam personam maxime in Judicialibus Ex consilio suo quod fideliter impertiuntur etiamsi non responderit eventus conveniri nequeunt quia nemo ex consilio obligatur An idem dicendum in Curatoribus ad Lites Thes Bes in litera K. 47. verbo Kriegerischer per. totam pag. 474. sequent D. Damnum cum quis utitur Jure suo DAmnum est conjunctum cum injuria Et non dicitur Damnum quod Evenit cum quis jure suo utitur Si vero quis ita utatur Jure suo ut vicino potius noceat quam sibi prosit illicitum est prohiberi potest Quia magis Jure suo abuti quam uti videtur Si in meo aliquid faciam ad aemulationem injuriam alterius hoc est non in meam utilitatem sed animo nocendi alteri de Dolo Teneor Secus si injuriâ faciam non animo nocendi vicino sed ut mihi prosit Si enim in meo praedio puteum aperiam quo aperto venae putei vel fontis vicini mei praecidantur non teneor ex hujusmodi facto etiamsi promisissem de Damno infecto quia jure meo licite feci Textus sunt expressi Leg. 1. § 12. Leg. 21. ff de aqua pluvia arcenda Jus Fluviat p. 67. n. 13. Death-Bed IF a Creditor may on Death-Bed make an Heretable Sum Moveable by a Charge of Horning A Person holding Lands Ward when he was on Death-Bed did resign his Estate in favours of his eldest Son with the Burden of Provisions in favours of his other Children which course was taken of purpose to prevent the falling of the Ward and Marriage his Son being then Minor Quaeritur If his Son may question these Provisions as being in Lecto upon pretence that though on Death-Bed he might Dispone in favours of his Heir yet he could not prejudge him Answer It is thought that the said Right being made suo modo and he having accepted the same and bruiked by vertue thereof after Majority he cannot question the said Modus and Qualification A Person having provided his Estate both Heretable and Moveable to his Relict in Liferent and to his Daughter in Fee and FailÈieing of her by Decease to be divided betwixt his Relict and his Brother being his next Heir after his Daughter and her Heirs And the Brother having accepted of a share of the Moveable Estate after the Decease of the Daughter Quaeritur If he might question the said Right as to the Heretable Estate as being made on Death-Bed Ratio Dubitandi Vtile per inutile non vitiatur and the Defunct might on Death-Bed dispose on his Moveables And the accepting of the Right as to these does not hinder the Heir to question the same as to the Heretage Whereof he had no power then to dispose A Husband having Disponed Lands by way of Gift to his Wife and having thereafter revocked the said Gift tacite by a Disposition made on Death-Bed in favours of another person Quaeritur If the Heir may question the said Disposition upon Death-Bed Ratio Dubitandi The Heir is not prejudged in respect the Lands would not have belonged to him but to the Wife And the Revocation is qualified and only in favours of the Person to whom it is made on Death-Bed and to no other effect Debitor and Creditor IF for a Sum of Money Land be Wodsett so that the granter of the Wadset is not Debitor There being no Clause of Requisition or Obligement for repayment Quaeritur If there be only a Reversion Whether will the granter of the Wadset have the benefite of the Act Debitor and Creditor so that the haver of the Wadset may be restricted to the Annualrent of the Sum contained in the Reversion Grubet contra Moir After a Comprising was deduced an Infeftment of Annualrent was granted by the Debitor And thereafter another Compriser having comprised who pretended that his Compriseing should be drawn back to the first being within Year and Day and therefore should be preferred to the Right of Annualrent And that the Debitor being denuded by the first Compriseing had only a Reversion and that an Infeftment of Annualrent is not habilis modus to give a right of Reversion and that it was not nor could be cled with Possession The second Compriseing being before the term of payment The Lords brought in the Annualrenter with all the Comprisers as if he had comprised the same day he was infeft Colstoun contra Nicolas a Creditor of Dunglass Gibson Clerk Colstoun's Bond was 16 February 1669 Seasin 24 May 1669 Nicolas Compriseing 1669. If the first Compriseing and Infeftment should be considered as being to the behoof not only of the Adjudger Infeft but of the others by the Act of Parliament in the same manner as if the Infeftment had been so granted expresly by the Superior Quaeritur Quid Juris Ratio Dubitandi That even in that case the Adjudger Infeft is only Vassal so that by him only the Superior has his Casualities Bancrief Nomina Debitorum IF Nomina which are not Res But Entia Rationis have Situm when the Debitor is in Scotland animo remanendi and the Debt is contracted with him as resideing there Ratio Dubitandi They are thought and called a Personal Interest and therefore should sequi Personam Contrà They are Res in Obligatione potentia 2. If the Creditor be forefaulted in France being a French-man they do not forefault to that King Quia subditus amittit only quae sunt civitatis 3. They are lyable in Scotland to extraordinary Taxations 4. The Debitor is quasi servus servi habent situm To consider Quid Juris elsewhere as to Banks montes Pietatis Strangers Debts IF a Stranger contract with a Scots-man abroad that he should pay
him presently upon the Place and the Debitor nevertheless come away without satisfaction Quid Juris as to that Debt whether it be construed Nomen Anglicum Quid Juris as to English-debts contracted betwixt English-men in England if the Debitor withdraweth to Scotland Answer It is thought that though actor sequitur forum rei and the Law of Scotland has place in such Cases quoad Ordinatoria yet the English over-rule such Cases quoad Decisoria And a Testament proven in England is sufficient Debitum Annuum A Brother having given a Liferent-tack to his Brother of a yearly Duty of Victual out of his Lands to be payed yearly during all the days of his lifetime at Martimass and the Tacks-man having deceased before that Term will he have any part of that years Duty in which he deceaseth And if there be a difference betwixt Debitum annuum Legatum annuum cujus dies cedit anni initio Mr. William Turnbul Minister of Mokerston contra Turnbul of Minto Debitum in Diem WHat course should be taken when the Debt is in Diem and the Term of Payment not come and the Debitors Estate comprised and the Comprising for other Debts like to expire before the Creditor in Diem can have a Decreet and Execution thereupon Sir Robert Sinclair's Daughter Decimae AV Commencement Les dismes n'estoyent le domaine des gens d'eglise et les dons des dismes que les Princes et Seigneurs ont fait aux Moines qui lors n'estoient du nombre des Clercs ont esté faites de leur biens propres Plusieurs payoient les dismes par devotion sans contrainte de ces payments fut faite coustume qui causa obligation qui Engendra action pour contraindre a payer les dismes Grimand de dismes lib. 1. cap. 4. La contrainte de payer dismes primierement N'eut fondement certain sur l'authorité du Magistrat Civil car il ne se trouve aucune constitution pour payement des dismes dans les Loix Imperiales Ibidem Charlemagne fut le premier qui les commanda payer Ibid. Decreets of the Lords of Session WHether the Sentences of the Lords of Session should be considered as Laws and if notwithstanding thereof these who are of another Opinion may in cases occurring thereafter vote according to their own Opinion Deeds both inter Vivos Mortis Causa IF it appear by a Paper in legitima potestate That the Defunct intended to settle his Estate both Heretable and Moveable Whether will the same be valide as to both so that both a Testament and Deed inter vivos may be consistent in one Paper Ratio Dubitandi If at the same time there had been a Paper apart in the same Terms it had been a valid Right as to the Heretable Estate being Delivered And it appears that it were against Reason that it should be invalid because it is in a Paper containing a Testament seing utile per inutile non vitiatur Captain Ross Dependence INhibitions and Arrestments may be upon Dependence of an Action Quaeritur If when two Citations are necessar the Summons with the first Citation thereupon will import a Dependence before the second Citation Destination of Succession A Bond being granted to a Sister by her Brother for Provision and to the Heirs of her Body whilk failÈieing to return to him and his Heirs Whether may she assign it without an Onerous Cause Jean Drummond contra Riccarton her Brother Whether the said Bond be moveable and will fall under Executory Humbie By Contract of Marriage betwixt him and Wariestoun's Daughter being bound to resign for an Infeftment to himself and the Heirs Male of the Marriage Which failÈieing his Heirs Male whatsomever Quaeritur If there be no Heirs Male of the Marriage will his other Heirs Male have action of Implement The said Obligement being only in Favours of the Marriage If as to other Heirs That being only a Destination he may alter it at any time etiam in Lecto in favours of the Heir whatsomever of the Marriage Quod in Favorem introductum est in odium non retorquetur If a Bond were granted by a Person in the same Terms and were lying by him might he alter or destroy it in lecto Desuetudo LEx non dicitur sublata per non usum sed per contrarium usum Baldus ad Tit. ff de Legibus Cod. quae sit longa consuetudo Heiring de Molendinis Quaest 37. N. 38. Dies coeptus IN Favorabilibus Dies coeptus habetur pro completo v. g. Pubes dicitur annum decimumquartum complevisse cum diem ejus ultimum attigit Dilapidation THE Act of Parliament 1585 against Dilapidations provides That Bishops to be provided thereafter should find Caution to leave their Benefice as it was at their Entry and if the Person so provided should do otherways the Tacks and other Deeds should be void Quaritur If they should find Tacks set at their entry Whether they may set new Tacks after the expireing thereof the Benefite being in the same case by the new Tacks as at their Entry Cogitandum Dishabilitation QVaeritur If by our Law the Posterity of Traitors may be disabled and what may be the import of the Dishabilitation and whether etiam Ante-nati may be disabled Power to Dispone notwithstanding the giving away the Right of Fee WHen Lands are disponed reserving a Power to the Disponer to dispone the same in hail or in part as if he were Fiar Quaeritur If he be thereafter forefaulted will the King have the same faculty by the Forfeiture Answer The said Faculty being Personal to the Disponer upon personal Considerations such Reservations being in Rights granted by Parents to their Children to be Tyes upon them that they be dutyful and because Parents may come to be in that condition that they may need and it is just that they have recourse to their own Estate Seing the said Considerations do not militate as to the Fisk the said Faculty cannot be pretended to be transmitted Quid Juris In the Case of a Compriser whether the said Faculty can be comprised Answer That the Debitor having the Faculty foresaid ought to dispone for satisfaction of a just Debt And if he be so unjust as not to satisfy the Debt the Law may and doth dispone and in Law the Compriseing being a Legal Disposition is equivalent as if the Disposition had been made by himself Dispositio collata in arbitrium alterius A Person not being satisfied that his nearest Kinsmen should succed him having a great Estate and they but mean and who he conceived could not represent him creditfully and not being fully resolved who should represent him lest he should be prevented with death did therefore dispone his Estate in Lands to such two Persons most worthy of his Name or upon Mortifications or such Pious Uses as Ten of his Friends named in the Disposition being a Deed inter vivos should think fit Quaeritur If the
Friends should accordingly name two Persons would the Right be valid Ratio Dubitandi 1. Mandatum expirat morte mandantis And if he could not dispone himself on Death-bed much less could he impower another Person to dispone after his Decease 2. Paria sunt indebito tempore fieri in tempus indebitum conferri 3. A Deed cannot be said to be a perfect Deed inter vivos unless it were consummate in substantialibus and the Person Cui is de substantia 4. No Power can be given by a Person who has no Right himself but as Procurator or Commissioner and such Powers do expire with the Granter 5. There can no Right validly be given incertae personae or ex alieno arbitrio in futuro 6. The Defunct could not give Power to the said Friends to dispose of his Personal Estate after his Decease and à pari or majori he could not give such a Power as to his Heretable Estate Mr. John Bayne of Pitcairly Disposition IF a Person get a Right and Disposition omnium Bonorum Whether will he be lyable to the Debt of the Disponer Actio ad Distractum EX Contractu non agitur ad Distractum sed ad implementum Contractus Transactio non aliter annullantur ex defectu Implementi quam si praecesserit monitio ad implendum deinceps culpa implere Debentis Hering de Molend Quaest 11. N. 132. 133. Division of the Duties of Lands betwixt Buyer and Seller BY the ordinary Custom when Lands are sold If it be a Whitsundays Bargain the whole years Duty is assigned If it be a Martimass-Bargain only the half year Quaeritur If they be not assigned Quid Juris as to the said Duties Answer It is thought the Buyer will be in the Case as we have said of a Compryser But the Question will be if the Bargain be made after Martimass and before Candlemass the ordinar Term of Payment of Victual And then it is thought that the Buyer should be in the same case as if the Bargain had been made precisely at Martimass if the price be then payed or in condition to be payed with the Annualrent from Martimass Seing the Disponer is in no worse case than if the Bargain had been made precisely at Martimass Donatio inter Virum Vxorem A Woman being induced to consent to a Right granted by her Husband of her Conjunct Fee Lands and making Faith not to question it Quaeritur If she may so far revock a Donation as to her Husband that she may crave the equivalent Donatio inter Virum Vxorem being ipso jure Null But so that morte confirmatur Quaeritur If a posterior Creditor of the Husbands should Comprise Lands given to the Wife during the Marriage before the Husbands Death will his Death confirm the deed in prejudice of the Creditor The Comprysing being medium impedimentum If at least the Legal will belong to the Wife The Husband not Revocking If the Husband decease without Revocking Quaeritur If the Wife will have Action against the Heir upon that ground that the Debt is pay'd out of her Estate by the Comprysing on the Husbands posterior Bond Lands being Disponed by a Husband to his Wife and thereafter he having Disponed the same to another person in Lecto aegritudinis Quaeritur If his Heir may question the Right in Lecto Ratio Dubitandi It is not made in his prejudice but of his Wife And the Revocation is only in favours of the Receiver of the Disposition A Debitor having contracted Debt after he had made a Right of Land or any other Donation in favours of his Wife Quaeritur If eo ipso he has Revocked Tacité the said Donation Ratio Dubitandi The Donatio inter virum uxorem is Null and morte tantum confirmatur And before it became valid the said impediment interveened And since the Debitor might have Revocked the said Gift and might have satisfied the Creditor that way his Silence and not Revocking is upon the matter fraudulent and in prejudice of the Creditor It is thought That it is to be considered if the Debitor or his Heir have no other Estate out of which the Creditor may be satisfied In that case the Creditor may have recourse against the Lands Disponed to the Wife If in the case foresaid the Wife may have recourse against the Heir for the Lands given to her so evicted Ratio Dubitandi That if the contracting the Debt after such Donations import Revocation it ought to be only in favours of the Creditor and not of the Heir who ought to be in no better case and the Wife's Action against the Heir may be upon that ground That out of the Estate belonging to her unquestionably as to the Heir the Debt whereto the Heir is Lyable is satisfied A Woman having made a Disposition to a third person to the behoof of her Husband and having ratified and made Faith before a Judge Quaeritur If she may question the said Deed as being Donatio inter Virum Vxorem notwithstanding her Oath Answer It is thought she may And that Deeds that in Law are invalid cannot be sustained upon pretence of an Oath which ought not to be Vinculum iniquitatis otherwise eâdem facilitate that a Wife is induced to give she may be induced to Swear and the Law should be Elusory And such Oaths ought to be understood only that they are not compelled and that they shall not question such Deeds upon that head But not in relation to any other Ground whereby they may be questioned As v. g. Minority and that the Wife has Curators not consenting And that the Husband if she has no other is Curator and cannot Authorise her to any Deed in rem suam And the Act of Parliament anent the Oaths of Wives is in favours of Strangers and not of Husbands Donatio mortis Causa THere being a Donation inter virum uxorem Quaeritur The Donator Deceasing and the Donant Surviving and not Revocking whether will the Gift be Valid Ratio Dubitandi Such Donations aequiparantur Legatis being always Revocable And Legatars Deceasing before the Testator their Legacies are void Donatio non acceptata IF a Donation be made but not accepted Quaeritur If a Creditor may Compryse the same and accept Vide Legacy quest 4. Donators upon Recognition and Forefaulture AFter Lands holden of the King had fallen under Recognition they fell also under Forefaulture and after the Decease of the Forefaulted person a Gift of the said Lands was given upon the Recognition and thereafter another Gift was given upon the Forefaulture It not being known by the King or his Officers the time of the first Gift that the person Forefaulted had committed Treason Quaeritur Which of the Donators should be preferred Ratio Dubitandi That Recognition is but a Casuality And after the Vassal was Forefaulted the property was thereby devolved to the King ipso jure And all Casualities seem to be
Extinct and consolidate with the Right of property And the Right upon Recognition does not belong to the Superior ipso jure before Declarator Mcghie of Larg Duels and Hame-sucken IF Hame-sucken or Fighting Duels be Capital though no person be killed Qui in Duello occubuerunt in Locis religiosis sepeliri non possunt Perez Lib. 2. Tit. 1. E. Emancipatio IF by our Law Children after twenty five years may Emancipate themselves and live by themselves and leave their Father and his Family Cogitandum And the custom of other Nations is to be considered Whether if they go out of the Family without the Fathers consent they may claim a Bairns part Contractus Emptionis a Pretio incipiens aut Mensura CVm emitur fundus tot jugerum an si plura reperiantur jugera Emptori cedant an venditori Respondetur Cúm pretium formatur a Mensura ab ea Contractus incipit in singula jugera certum pretium promittitur quod superest ad venditorem redit quod deest ab eo suppletur Sin Contractus incipit a specie licet demonstrative aliqua mentio de modo agri fiat ut si vendo fundum centum jugera continentem si plura reperiantur cedunt Emptori nec ad augendum pretium tenetur falsa enim fuit Demonstratio quae non nocet Thes Bes in litera K. 9. verbo Kauffen p. 453. What way the Buyer may be urged to Enter IF the Buyer lye out what will be the remedy for the Superior Answer He may pursue to hear and see him decerned to Enter and to pay Composition And without prejudice of that Decerniture if he continue to ly out To hear and see it found that the Lands are in Non-entry And that the Superior as to Casualities shall be in the same case as if he were Entered Entry of Assigneys upon Resignation IF the Alienation and Resignation be Assigned Quaeritur If the Superior may be compelled to enter the Assigney seing both are in favours of Heirs and Assigneys Answer Negativé Unless a Composition be payed both for the Buyer and for the Assigney Seing the Superior is not obliged to Enter any but the Buyer and his Heirs And though the Right be to Assigneys it is to be understood such as the Superior should be satisfied with And the Superior is not to be in a worse case than if the Buyer had been Infeft and had Disponed And there is in this case Fictio brevis manus Entry upon Resignation by a singular successor WHat way a singular Successor in the Right of Superiority may be urged to Infeft upon Resignation in his Authors time Seing he does not represent him as Heir And is not bound to the Buyer by Contract or quasi Answer There is obligatio in rem as in the case of Servitudes and Annualrents And he may be pursued summarly to hear and see him decerned to Enter the Buyer And to that purpose to give him a Charter of the Tenor Exhibited And upon a Bill the Director to the Chancery may be ordered to give out a Precept in subsidium Liferent Escheat A Vassal having granted a subaltern Right being Year and Day at the Horn Forfaulteth only his own Right of Liferent without prejudice to the Sub-vassal Whereupon it may be Quaeried If a Vassal has Disponed his Right but so that the Party Acquirer is not Infeft will notwithstanding the Disponers Liferent fall Answer Affirmativé And the Ratio Dubitandi is of no weight Viz. 1. A Tacksman though the duty be not proportionable will not be prejudged 2. If the Receiver of the Disposition be Rebel per annum and the Lands hold of the King The King will get eodem tempore Two Liferents of the same Lands Viz. One by the Rebellion of the Disponer and the other by the Rebellion of the Receiver For as to the first a Tacksman has a Real Right and Interest which militates against a singular Successor And as to the second there is no Inconvenient that the Superior should have the Liferent of his Vassal And if the King be Superior that he should also as King have the Liferent of his Subject And any benefite may accrue to him by the Disposition and Warrandice thereof during his Lifetime If a Person Infeft in Liferent be denuded by an Assignation of the Liferent which is only habilis modus in respect Liferents constitute by Infeftment are personal and cannot be transmitted by Resignation Quaeritur If the Liferenter be Year and Day Rebel after the Assignation will the Superior have Right to the Duties A Lady Tercer or Tennent by Courtesy their Lands holding of another Superior than the King and they not being Vassals to him Whether will their Liferent fall to the King being year and day at the Horn A Person being denounced in April and continuing year and day at the Horn Quaeritur quando dies cedit of the Liferent falling to the Superior of the Lands set to Tennents And whether or not the Superior will be in the case of a Liferenter surviving the Fiar So that he will have right in the case foresaid to the full Duty of that year that the Liferent falls per lapsum anni diei Quid Juris Where the Rebel laboureth himself will he not be lyable to the Superior for the Duty of that Year as if he were a Tennent If these Obligements that are ordinary in Dispositions to be holden of the Granter and Superior That while the Buyer holds of the Granter his Heirs and Successors shall be entered gratis and shall not be lyable to Non-entry nor Liferent Escheat which are gifted to them now as then Will bind singular Successors And what way they may be made real if there be any Question Answer It is thought that they may be inserted both in the Charter and Sasine It may be contended that these being upon the matter Servitudes upon the Superiority may be constitute as other Servitudes without Write specially seing it is intended they should hold either of the ways and that the Right in the Person of the Disponer to be holden of the Superior is in effect to the Buyers behoof until they be confirmed And Reversions were Real even before the Act of Parliament anent the Registration of the same Cogitandum If at least Comprisers will be lyable to such Obligements Seing they comprise only such a Right as their Debitor had and they are in use to comprise all Contracts and Dispositions and therefore ought to be lyable in rem to all Obligements upon the Debitor and his Successors relating to the Lands comprised To consider If there be not a Difference betwixt Obligements as to Liferent Escheat and others these as to Liferent Escheat being contrary to Law and such as give occasionem peccandi and if such an Obligement be not sustained to whom will the Liferent belong Whether to the mediate Superior seing the immediate has renounced or to the King as ablatus ab
thereupon the half of the Estate To see the Decreet Jus Facultatis ATtendendum an quis aliquid faciat jure facultatis an jure servitutis Facultas enim non minus aliis quam nobis patet quia usus qui alii magis ex occasione quam jure conting it Servitus non est nec in eo temporis Diuturnitas quidquam prodest nisi accesserit prohibitio praescribentis patientia ejus contra quem praescribitur Jus Fluviat p. 756. N. 71. sequent Personal Faculty A Person giving a qualified Right reserving Liferent and a Power to dispone Quaeritur If that Faculty may be comprised as a Personal Reversion Quae Facultatis sint ALiqua Dicuntur esse facultatis quorum Libertas a Jure publico permissa est quae non pariunt jus deducibile in Judicium hoc casu nec nos contra alios praescribimus nec alii contra nos Exemplum est in Leg. viam 2da de via publica Aliud Exemplum est in facultate privata quae nullam antecedentem habet causam obligandi ut si Rusticus sua sponte nulla praecedente causa per multos annos Domino certis temporibus capones attulit ex hoc actu merae facultatis nulla oritur Domino actio Quomodo intelligendum Facultati non praescribi ALiqua dicuntur esse Facultatis ad acquirendum novum Jus vel novam actionem vel etiam ad eam Conservandam atque ita pariunt Jus deducibile in judicium Et hoc jus licet sit in libera potestate acquirere volentis non tamen est in potestate illius contra quem acquiritur vel conservatur ut recusare posset Sic adire haereditatem est merae facultatis tamen tollitur praescribitur spatio 30 annorum ergo juri offerendi reluendi praescribitur Hering de Molend quaest 21. N. 17. sequen Jus publicum tribuit cuivis de Populo ut uni ex multis nec privative ad alium etsi ad singulos inde aliquid commodi perveniat Inde illud quod dicere solent Facultati non Praescribi Dicitur de his quae à natura aut publico Jure tribuuntur itaque quocunque tempore nemo praescribit ut qua ierit in publico nullus alius commeet etsi nunquam ea commearit Ea quae de tali facultate dicta sunt non recte Traducuntur ad ea quae proprii privati cujusque Juris sunt id enim Jus est quod ad privatum quemque pertinet privativé ita ut non ad alium Omni siquidem Juri aut facultati quae competit privato cuiquam privativé potest praescribi Idem Ibid N. 20. Faculty reserved to dispone IT being ordinary that a power is reserved by these who Dispone Lands especially to their Friends to Redeem or Dispone or Burden at any time dureing their Lifetimes Quaeritur Whether Lifetimes should be understood civily during their Liege Poustie Item Quaeritur If the Receiver of the Disposition be Dead and the Lands in Non-entry whether the Disponer may notwithstanding Dispone and resign by vertue of the said Power Ratio Dubitandi The said Faculty is upon the matter a Heretable Commission and Procuratory which cannot be Execute post mortem mandantis and there is no person that has the Right Established in his person so that it may be resigned Item If the Lands be in Non-entry and Ward will the Resignation by vertue of the said Faculty determine and put an end to the foresaid Casualities in prejudice of the Superior Ratio Dubitandi The Defunct by whose Decease they accrue was the Superiors Vassal And though the Disponer has the same power yet he should have used it debito tempore while the Vassal was on Life and before the pursuer had jus quaesitum On the other part the said power is of the nature of a Regress so that quocunque tempore as in the case of regress Re-entry may be desired by vertue of the said Faculty A Charter being to be granted to a person conform to the said power That Clause Quaequidem pertinuerunt what way it is to be conceaved and if mention should not be made of the person who is Infeft for the present though he be not the person to whom the Right was Disponed with the said Power But either an Heir or singular Successor If the Faculty to Dispone be not upon the matter a Reversion materially and as to the effect of the same so that the person having the same may Dispone albeit he has not jus in re And albeit the Heretor be either Dead or Forfaulted As an order may be used against an Appearand Heir or against the King or his Donator in the case of Forfaulture or ultimus Haeres A Person who had the Faculty foresaid having by vertue thereof Disponed but deceasing before Resignation Quaeritur What way the Disposition shall be made effectual seing the Faculty was personal to himself Fee WHen by a Contract of Marriage a Sum is to be provided to a Husband and Wife in Liferent and to the Bairns in Fee Which FailÈieing to the Father and his Heirs Quaeritur Before there be Children where is the Fee And if it be not fit to take it to the Father to the use and behoof of the Children which FailÈieing to himself and his Heirs When it is intended that by Contract of Marriage the Parents should be only Liferenters and that certain Sums should be provided to the Children so that they do not represent them Quaeritur What way the Fee can be provided to the Children that are not in being Answer The Father may be infeft in Liferent for himself and in Fee for the use and behoof of his Eldest Son and his Heirs Which Fee is to be to the Father and his Heirs to the use foresaid And they are to be obliged upon the Existence of a Son to denude in Favours of him and his Heirs By Contract of Marriage betwixt Knockdaw Sir John Kennedy and Gilbert Kennedy of Girvanmayns The said Sir John having married the said Gilbert's Daughter The said Gilbert's Lands and Estate are disponed to the said Sir John and his said Spouse and the Heirs betwixt them which failÈieing to such of the said Gilbert's other Daughters as he should at any time appoint which failÈieing to the said Sir John's Heirs and Assigneys whatsomever and now the said Sir John being deceased and having a Son of the Marriage Quaeritur Whether the Fee did belong to him so that his Son may be served Heir to him in the Estate It is Answered That in the case of the Duke and Dutchess of Monmouth The Conception of the TailÈie not being unlike it was thought the Dutchess was Fiar albeit the Limitation of the Heirs did ultimatly resolve in the Dukes Heirs upon that ground that there is a difference betwixt the case where the Lands are provided and Disponed to the Husband and the Wife and the Heirs of Marriage which
FailÈieing either to the Husbands Heirs or Wifes Heirs And in the case foresaid where after the Heirs of the Marriage there are diverse substitutions in favours of the Wife 's other Heirs and after all in favours of the Husbands Heirs In the first if the Wife's Heirs be only substitute FailÈieing Heirs of the Marriage the Husband is understood to be Fiar Because as it is the essence of a Fee to have power to Dispone and if the Fiar do not Dispone to transmit to the Fiars Heirs and to be represented by them And in dubio cujus haeredibus maxime prospicitur That person is thought to be Fiar But in the second case there being diverse degrees of Substitutions and all in favours of the Wife and her Heirs before her Husbands Heirs The Wife is thought to be Fiar And upon the FailÈeure of all her Relations the Husbands Heirs in the last place are Heirs of provision to her And yet in the said case of Girvanmains It is thought that the Husband is Fiar there being these specialities in that case 1mo The said Estate is Disponed to the Husband and his Spouse the longest Liver as said is and their Heirs of the Marriage and there is no Liferent settled on the Husband whereas there is a Liferent of a part of the Lands given to his Wife in satisfaction of what might fall to her either of her Fathers Estate or of her Husbands 2do There is a provision that if there should be no Children of the Marriage to succeed to that Estate the Husband should be obliged in that case he and his Heirs to denude themselves upon payment of a certain Sum of Money and he could not denude himself unless he were Fiar So that it was intended that the Husband should be Fiar but with the foresaid Provision to denude in the case foresaid and to be restricted to a Tocher For which and other Reasons arising upon the Contract The Antecedentia and Consequentia being considered It is thought that the Son should be Heir to his Father as Fiar A Bond being granted to a Man and his Wife and their Heirs Quaeritur What Right the Wife will have to the Sum Ratio Dubitandi that there being no mention that the Sum should be due to the longest Liver and the Heirs of the longest Liver but to them both and their Heirs It appears that the Heirs should be understood the Husbands Heirs as Personae digniores Answer It is thought that seing there is an joint Right to the Husband and the Wife and it is the custome of Persons of their Quality being mean Country Persons that the longest liver should enjoy all The Wife indubie should enjoy the haill in Liferent and should have the Fee of the half De Feodo Pecuniae Nominum PEcuniae Nominum nec proprie Ususfructus nec Feodum est ususfructus enim definitur jus utendi fruendi salvâ rerum substantia pecunia autem sive in specie sive in nominibus est res fluxa Et si in specie sit facile diffluit usu consumitur Nomina autem etsi initio idonea debitoribus decoquentibus inania sunt Quemadmodum vero ob utilitatem receptum est ut pecuniae sit quasi usus fructus ita est quasi feodum istud enim proprie loquendo est tantum in rebus soli stabilibus feudis tantum non vero allodialibus ita dictis quod nullo laudato recognito alio dominio ad proprietarium pertinent pleno integro jure nec libato diviso in Dominium directum utile Licet autem apud alias Gentes praedia quaedam allodialia sint nobis omnia sunt feudalia Et Feodum quidem in feudis de proprietate dominio dicitur prout distinguitur ab usu fructu aliis quae circa feuda versantur juribus Per Metaphoram tamen Feodum transfertur ad pecunias nomina ita ut is in Feodo esse dicatur cui jus summum proprietatis competit plaerumque vero evenit sive seculi vitio in nova commenta prurientis sive Notariorum Incuria aut imperitia ut Chirographorum stylus a primaeva simplicitate deflectat sic haud raro nec immerito dubitatur penes quos sit pecuniae Nominum Feodum Quaestio Prima SI igitur Sempronius Pater Pecuniam crediderit Chirographo stipulatus sit eam usuras sibi solvi si superstes sit Eo autem per obitum deficiente Titio filio suo Titii haeredibus quibus dederit seu assignatis Ita tamen ut Sempronio liceat de pecunia Nomine disponere Titio haeredibus ejus inconsultis nec consentientibus Quaeritur In ista facti specie ad quem nominis istius Feodum pertineat Et videri possit Feodum ad Titium filium pertinere cum nulla sit mentio Sempronij haeredum Et Feodi ea sit natura ut ad haeredem transeat qui in jure eadem persona censetur Dicendum tamen Sempronium in Feodo esse penes Titium vero ejus haeredes spem jus successionis Nam quae Feodi proprietatis vel essentialia vel naturalia sunt ut sciêª Dominus de re sua disponere possit ut ea ad haeredes transeat ea Sempronio competunt potestas enim disponendi etiam non expressa inesset Titius Sempronio substitutus in jus ejus succedit pro haerede habetur provisionis saltem ut loquimur idque ex eo elucescit quod si accessisset etiam hypotheca sasina terris pro Pecunia in hypothecam datis iâ—sdem conceptis verbis Sempronio sciêª eo deficiente Titio filio ejus haeredibus assignatis Titius eo casu extra omnem quaestionis aleam haeres foret ubi autem eadem sunt verba eadem ratio idem jus est esse debet Quaest 2da IN ista facti specie supra memorata Quaeritur etiam an Sempronius de isto nomine disponere possit nedum inter vivos sed Testamento aut codicillis eo legato cum debitum Chirographarium mobile sit Respondendum videtur Sempronium eo ipso quod tam haeredibus quam executoribus praeteritis Titium elegit substÃtuit sibi instar haeredis provisionis interciso ordinario succedendi ordine quasi Tallia Titium in ea re haeredem esse voluit Voluisse etiam nomen esse haereditarium de quo moribus nostris nisi inter vivos non licet disponere nec de ea re est Testamenti factio Nec ad haeredem institutum in mobilibus seu executorem nominatum pertinet quod ab intestato ad Executorem dativum non pertineret Quaest. 3tia IN ista etiam specie Quaeritur Si Chirographum in actorum codicem seu Regestum sive ut loquimur Registrum referatur vel a Sempronio vel eo mortuo a Titio ut instar sententiae habeatur ex eo sit
in favorem commercii Goods belonging to Rebels may either be Disponed and given by themselves in payment of their Debt or poinded or otherways affected before Declarator and Diligence done by the Donator to affect the same Grana crescentia WHat is the reason for the astriction of Grana crescentia Answer Feuers are in effect Coloni and perpetual Tacksmen And they ought not to be in better case than Tennants whose Grana crescentia were upon the matter thirled the Food and Expences of Labouring being deduced it is thought the Tennent will have no more than will entertain him Great Seal A Gift of the Estate belonging to Bastards or Forefaulted persons whereupon there was no Infeftment being granted under the Great Seal Quaeritur will it be valid Ratio Dubitandi The ordinary way of passing such Gifts is under the Privy Seal H. Heirs A Child being served Heir to his Mother and thereafter the Childs Father being served Heir to the Child Quaeritur if he can be said to be Heir of Line to his own Wife and ought to be discust before other Heirs A Woman being Married to a Bastard and having a Child Quaeritur as the Child will succeed to the Mother whether the Child having no other Heirs his Father being a Bastard so that he cannot have any Cognati upon the Fathers side will his Mother be Heir to him Ratio Dubitandi That by the Common Law the Mother does succeed and as the Child does succeed Ratione Cognationis and Relation to his Mother it seems that for the same reason she should succeed to him the Relation being mutual Quaeritur If a Son of a former Marriage having Right to succeed by Substitution in the case where the Father provided Lands to the Son of a second Marriage and the Heirs of his Body Whilks FailÈieing to the Fathers other Heirs and Assigneys for implement of his Contract of Marriage There being no other Children of the second Marriage must he be Heir to his Father the substitution being as said is in favours of the Fathers Heirs Ratio Dubitandi That in many cases the word Heir to another person than the person De cujus successione agitur is to be understood haeres habitu vel potentiâ non actu As if upon considerations a Brother should pass by his Brother of purpose and FailÈieing his own Heirs should substitute the Heirs of his Brothers Body But in this case it would seem by the Obligement of the said Contract of Marriage and the said right he has intended that he should be represented himself FailÈieing the Heirs of his Marriage Vide the tenth and eleventh Questions in the Title Successor titulo Lucrativo Litera S. If that should be the Construction Quaeritur Quid Juris If the Son of the second Marriage should decease the Father living Seing the Son of a former Marriage cannot be served Heir to his Father Cogitandum Lands being entailed to diverse persons substitute and the Heirs of their Bodies whilk FailÈieing to the other Heirs of TailÈie successivé Quaeritur If one of the said Heirs of TailÈie be Forefaulted before the Death of the person in Fee leaving descendents of his own Body whether will the next Heir of TailÈie succeed Ratio Dubitandi Because the next Heir who would succeed FailÈieing the Forefaulted person and the Heirs of his Body cannot be said to be proximus seing the Children of the Traitor are nearer And though they be nulli and mortui civiliter they are not naturaliter nulli So that they being incapable and the others not having jus sanguinis it may appear quod nullius est pertinet ad Regem It is thought that the nearest of Kin should exclude the Fisk Seing qui sunt nulli they are not to be considered as to any effect and especially in that which is odious and exclusive And it is hard that the Estate should be Forefaulted by the Crime of a person who had never Right to it Behaving as Heirs QVae Ratio That the owning a Title of Honour and sitting in Parliament doth not import Behaving as Heir and yet the owning and intrometting with a Sword or Armour or any thing else will import Gestionem Answer That Creditors being to be satisfied out of the Goods and Estate belonging to a Defunct Debitor If the Appearand Heir doth meddle with any part of the samen Eo ipso adit passive quia miscet se rei which should be Lyable to the Executors Execution But a Title of Honour is not such an Interest as could be any way Lyable to the Creditor and the Appearand Heir in owning the same non libat haereditatem Quaeritur If a Ratification by any Appearand Heir of a Right granted by the person he was to succeed to being yet on Life will import Gestionem Ratio Dubitandi That he could not be Heir nor Gerere during the Defuncts Lifetime And on the other part the ratification is granted because he is Appearand Heir and might question the Right And as one may be Lyable passive by accepting a Right in the Defuncts time whereby he is Successor titulo lucrativo so he may Behave by a Deed in the Defuncts time Heir of Conquest THere being three Brothers and the middle Brother having an Estate and deceasing after the decease of his Elder Brother who had diverse Sons and the Younger Brother being on Life Quaeritur Who will succeed to the middle Brother as Heir of Conquest Ratio Dubitandi 1mo The Younger Brother being Heir of Line and who would be Tutor to the Children of the middle Brother if he had any it may be doubted if there should be a representation in conquest the Heir of Conquest not being properly Heir 2do Conquest ascending gradatim whether would the Youngest or Eldest Son of the Elder Brother succeed as Heir of Conquest being both collateral to the Defunct Discussion of Heirs A Person having provided his Estate to his Daughter with power to Dispone and Redeem is obliged that if he should make use of that power in prejudice of his Daughter he and his Heirs Male and Successors in that Estate and Dignity should be obliged to pay a certain great Sum of Money at the first term after his Decease Quaeritur whether his other Heirs or Executors and not only the Heir Male will be Lyable to pay the said Sum at the least in subsidium The Heir Male being first discust Lauderdale and Lady Yester Quaeritur Quo ordine A Successor Titulo Lucrativo should be Discust Answer It is thought that he should be discust before the Heir of TailÈie being in effect a general Heir Unless Lands be Disponed to an Appearand Heir of TailÈie in which case he should be considered as an Heir of TailÈie When the order of Discussion is Renounced If the Heirs of TailÈie or Provision may have recourse for their relief against the Heir general who by Law is first Lyable to the Debts Albeit as to Creditors that order be
could not Dispone the Lands for an Onerous Cause But if the Father had Disponed the Lands provided by the Contract without an Onerous Cause after the Elder Son his Fee or had resigned of purpose to defraud the Heir of the second Marriage the Father would be Lyable de Dolo and the said Deeds reduceible But the Eldest Son being once Liberate by implement would not be Lyable Tweeddale contra DrumelÈior There being Heirs General and Heirs Male and of Provision and Heirs of a second Marriage being provided by their Mothers Contract of Marriage to certain Provisions whereunto they have Right as Heirs of Provision Quaeritur quo ordine will the Heirs of the second Marriage be lyable to Debts and Discussion Answer It is thought that they being Heirs upon an Obligement quasi creditores it would appear that they should be Lyable in the last place in subsidium all others being discust In Contracts of Marriage The Husband being for the most part obliged to provide and resign his Estate for Infeftment to himself and the Heirs Male of the Marriage which FailÈieing to his Heirs Male of any other Marriage which FailÈieing the Heirs Female of his own Body the Eldest succeeding without Division Quaeritur If the Husband should resign and take such a Right upon Resignation but thereafter should resign in favours of other Heirs Whether the Heirs of the Marriage may question the said alteration and what way Ratio Dubitandi That an Heir is eadem persona and cannot question the Deed of the Person whom he represents Answer He is not simply Heir but Heir of the Marriage And as to Obligements in his favours he is Creditor 2do It is thought he may pursue a Reduction of the foresaid Deed as being in prejudice of him as Creditor or he may pursue the Heir of Provision by the posterior Right for implement of the said Obligement Quaeritur When by such Provisions there are other Heirs substitute to the Heirs of the Marriage Whether the Husband may alter the Destinations as to the said other Heirs And if he do if they may question the Deed Answer It is thought that the Heirs of the Marriage are only in Obligatione And the other Heirs in destinatione mariti which he may alter A Person being obliged by Contract of Marriage to resign certain Lands in favours of himself and his Wife in Liferent and the Heirs Male of the Marriage whilk FailÈieing his Heirs whatsomever And likewayes being obliged that what he should get by his Wife by any Legacy or Right or Assignation in her favours to secure and employ the same to himself and her in Liferent and to the Heirs of the Marriage which FailÈieing to his Heirs whatsomever And he having accordingly resigned and taken Infeftment to him and her and the Heirs foresaid And a Sum of Money having fallen to her and being uplifted and Discharged both by him and his Wife before Inhibition and thereafter there being Inhibition upon the said Contract at the instance of certain Friends at whose instance Execution is appointed to follow These Questions do arise 1mo If notwithstanding the said Inhibition he may Dispone the Lands Answer He may Dispone the same being Fiar And the import of the said Obligement is that the Right of Succession as to the said Lands should be secured to the Heirs of the Marriage in case the Father should decease in the Fee of the same so that he cannot provide them to other Heirs But it is not intended thereby that the Father should not have the Right competent to all Fiars Viz. That they may dispose of the same if their condition requires Quaeritur If he may at least Dispone the same without an Onerous Cause Answer It is thought not seing all Obligements should be understood ut actus valeant operentur And though the Father be Fiar his Fee is by the said Obligement so restricted in favours of the Heirs of the Marriage that he cannot fraudulently and to evacuate the said Obligement Dispone without an Onerous Cause If the Inhibition will be effectual as to the Sum e. g. of 10000 lib. neveremployed Answer It will be effectual as to the Wife But as to the Heirs of the Marriage there may be question Ratio Dubitandi That there being an Obligement it ought to be once fulfilled by employment to him and his Wife and to the Heirs of the Marriage And on the other part seing notwithstanding the Inhibition he might have disposed of the said Sum if it had been employed there is eadem Ratio if it be not employed Seing his Condition may be such that he cannot employ the same If it be not to be considered what truely his Condition is And if it be such that he cannot employ the said Sum without Ruine That he should not be obliged to employ it Dicis Causa to be thereafter uplifted And if a Process may be intented against his Children to hear and see it Found and Declared that he should have power to Dispone notwithstanding of the said Inhibition and Obligement foresaid both as to Lands and Money Seing if the Money were employed he could and might dispose of the same being Fiar And he is not in that Condition to raise the said Sum and employ it Watson of Damhead Heirs Portioners WHen Women succeed as Heirs whatsomever v. g. Three Daughters they succeed as Heirs Portioners without any priviledge of Primogeniture Quaeritur if the Three Daughters succeeding be deceased leaving each of them Sons and Daughters Will the Eldest Son of any of them exclude the rest of the Children and be Sole Heir Portioner to the Grandfather Ratio Dubitandi As Primogeniture is introduced for the preservation of Families which does not militate in successione Foeminea Women being finis caput Familiae There ought to be no respect to the same in the second Degree nepotibus as there is not in primo gradu in filiabus There being utrinque eadem Ratio Where there is a plurality of Heirs Portioners and some of them become Lapsi may the Debt be recovered in solidum from these who are Responsal Cogitandum If a Barony descend to Heirs Portioners will all have Right of a Barony If any Superiorities belong to the Barony will the Eldest only be Superior Heirs of Provision and substitute WHatever belongeth to a Defunct in Fee and Property whether Land or any other Interest the time of his decease cannot be transmitted but to Representatives or these who are instar haeredum and bonorum possessores as in the case of Lands provided to Bairns of the Marriage the Bairns are in effect Heirs of Provision And if Sumes be provided by way of Substitution to another person after the decease of the Creditor the Substitute will be Lyable to the Creditors Debt other Heirs being discussed Heirs of Provision being oftimes Strangers and in re certa Quaeritur will they only be Lyable secundum vires If a Right of
Titio nec imputandum nec officit Patrimoniorum siquidem conditio Jura viduae liberorum legibus constituuntur nec aequum est ea ex arbitrio haeredis pendere aut ambulare Porro haereditatis delatio Facultas adeundi aliis casibus nedum hoc haud parum operatur haerede enim perduelli Majestatis reo haereditas etiam non adita amittitur Fisco quaeritur Legitimation per subsequens Matrimonium A Person after his first Marriage of which he had Children having Married again and having diverse Children by the Woman Married to him in that second Marriage elder nor the first Children which are thereby legitimate Quaeritur Whether the Eldest Son with the second Wife will be preferred to the Son of the first Marriage as to the Right of Succession Ratio Dubitandi The first Marriage was Contracted Spe and in contemplation that the Children of that Marriage would succeed and the Eldest Son by his Birth had Jus primogeniturae as the first Lawful Son which could not thereafter be taken from him e contra the Son of the second Marrriage the time of the Fathers Death which is to be considered as to the question of the Succession is his Eldest Lawful Son Cogitandum If a Person may Marry on Death-bed in order to the Legitimation of Natural Children in prejudice of his Agnats who would otherwayes succeed Marriage and Legitimation THere being a Declarator intented to hear and see it found that the Children were Lawful in respect there was a promise and Copula Quaeritur If the pursuit being after the Fathers Decease in order to the Succession to the Good-sire the promise may be proven prout de Jure as it might have been before My Lord Neutoun told me that after the Fathers decease it is found not probable by Witnesses Laird of Lauder Lenteratio LEuteratio vide Appellatio in Litera A. Libellarius Contractus LIbellus sive Libellaria est contractus quo interveniente scripturâ res immobilis venditur certo pretio certa insuper pensione in singulos annos ea lege plerumque addita ut stato condicto tempore renovetur denuo numerato pretio certo vel arbitrario Hering de molendin q. 29. n. 4. Est Italis usurpatus dicitur a scriptura Libello seu brevi charta Ibidem n. 6. Liberi INdefinito Liberorum nomine censetur actum de natis tempore Contractus non de nascituris Hering de molendin quaest 20. n. 19. Liferenter IF a Liferenter of Lands Stock and Teind having Set the Lands to Tennants for a Duty for the Stock and drawing the Teind and having deceased before Martinmass after drawing the Teind Quaeritur will she be Lyable to the Heir for the half of the Teind Ratio Dubitandi For the Heir That she dying before Martinmass he ought to have the half of that Years Duty And for the Liferenter that she had Right to the Teind after it was separate and collected so that she might have disposed of it and having gotten it it cannot be taken from her and that the Legal terms are to be considered in the case of Debt when dies cedit but in this case nihil debetur but she has Right to the Fruites Teinds and Quota of them in the same manner as the Tennant and as if she had laboured Vide Third and Teind Letter T. Vide Titular litera T. q. 2. vide Milns Litera M. Where Grass Roums are set for payment of a Silver Duty by the Tennent entering at Whitsunday the half at Martinmass and the other half at Whitesunday thereafter Quaeritur If the Liferenter decease after Martinmass whether the Martinmass Duty will belong to her Executor Ratio Dubitandi That the Duty payable by the Tennant entering as said is and going away at the next Whitesunday is payable in respect of the Cropt and proventus of the next Year either of Corns or foetura animalium and it is without question that a Tennant paying a Silver Duty for a Corn-Roum albeit he pay at Martinmass after his entry yet it is payed for the next years Cropt so that the Liferenter can pretend to no part thereof deceasing the time foresaid and on the other part it appears that there may be a difference as to Grass Roums seing the half of the Duty seems to be payed for the profite of the Grass from Whitesunday to Martinmass which falls within the Liferenters Right Quaeritur Quid Juris As to Salt-pans and Milns if the Liferenter have the same in her own hand whether her Right is presently determined by her Death The same being set to Tennants from Candlesmass to Candlesmass If the Liferenter deceased after Lambmass and Martinmass will her Executors have any part of the Duty after Lambmass When Rentals are set in these terms That beside the Rental Duty there should be every five Years a considerable Sum payed as in Contractu Libellario Quaeritur If the Liferenter will have Right to that Sum if it fall to be payed during the Liferent When the whole Estate of a Nobleman is Disponed reserving his Liferent or of a Baron will the Liferenter have Vote in Parliament and Voice in the Election of Commissioners for Shires A Lady being Infeft upon her Contract of Marriage in Lands for her Liferent Quaeritur If Tacks set thereafter by her Husband will bind her Vide Terce quaest ultima Executors of a Liferenter IF a Woman deceaseth after Whitesunday before her Husband will her Executors have Right to a part of the years Farms Liferents DIes as to Liferents when the question is betwixt the Executor of the Fiar and Liferenter cedit at Whitesunday and Martinmass as the Legal Terms Quaeritur If a Bond be to a Man and his Wife the longest liver payable at Lambmass and Candlemass and the Husband deceasing after Candlemass will the Husbands Relict have Right to a half year at Whitesunday If a Father be Infeft in Liferent in Lands and be content to renounce his Liferent in favours of his Son Quaeritur If it be habilis modus to extinguish his Liferent Ratio Dubitandi He is the Superiors Vassal during his Life and cannot cease to be Vassal without the Superiors consent at least sine refutatione When a Vassal is Year and Day at the Horn if he has granted a Right to be holden of himself what will be the Import of his Liferent If a Liferenter do Dispone his Liferent of Lands or if the same be Comprysed from him and thereafter he be Year and Day at the Horn Quaeritur If the Superior will have Right to the Liferent as if the said Right had not been granted Answer It is thought he can have no other Right than such as the Liferenter had and affected with the said Right If the Liferenter be Forefaulted will not the King have the Right of the said Liferent without the burden of the said Rights And if it be so Quae Ratio
Discriminis Answer The King will have Right to the said Liferent entire and the reason of the Disparity is that Treason is Crimen feudale and when the Vassal Fiar or Liferenter doth Forefault the Right cometh to the King Pure and without any Burden but such as he has consented to Whereas Horning is not Delictum feudale but commune and the Liferent doth not belong to the Superior Jure feudali but Statuto so that he ought not to be in better case than the Rebel Quando Dies cedit as to Liferenters WHen Rent of Lands is Victual the Heretor dying before Whitesunday the Liferenter has Right to the whole Year if after Whitesunday but before Martinmass The Relict has Right to the half but if after Martinmass to no part because Whitesunday and Martinmass are Termini Legales as to the question Quando dies cedit Quaeritur therefore whether when Rent is all in Highland Roums agris pascuis the custom being in some places that the Tennants entering at Whitesunday payes the half of the Rent at Martinmass next and the other half at Whitesunday thereafter Quid Juris as to the Relict the Husband dying after Whitesunday or after Martinmass The same Question is If in the Lowlands in Corn-Roums the Tennant and Master agree that the Duty should be payed in Money by the Tennant entering at Whitesunday the half at Martinmass and the other half at Whitesunday Vasallus Ligius NEmo potest esse simul duorum Vasallus Ligius Thes Bes litera L. p. 597. ad finem Limitation of Fees LAnds being Disponed to a person and the Heirs Male descending of him which FailÈieing to the granter and his Heirs Quaeritur If his foresaids faill what way will the Granter being Superior and his Heirs attain to the Right whether as Heir of Provision to the Vassal or per vi am Consolidationis and by a Declarator that he has Right by the return foresaid and that the Property is consolidate with the Superiority Whether he will be Lyable to the Vassals Debts Ratio Dubitandi The Vassal was Fiar and might Contract Debt and whoever succeedeth to him ought to be Lyable thereto If the Right be granted to a Person and the Heirs of his Body without any further Provision or mention of return whether will the King have Right as ultimus haeres or the Superior Answer The Fee not being simple but limited It is thought that the Superior should have Right seing the Fee is limited And the King cannot succeed but by way of Representation and as haeres ultimus and there can be no Transmission beyond the Limitation But if the Lands be given to a Man and his Heirs whatsomever the Fee is simple and the Granter having simply and absolutely given away the same he can pretend no Right to the same and the King cometh under the generality of Heirs whatsomever being ultimus haeres Litiscontestation IF Removings SpuilÈies and Ejections which are interdicta possessoria Litiscontestatione perpetuentur for fourty years or only three The same Question may be for Servants Fees House-Mails and such other Actions which prescribe in three years Quo casu Possessor in mala fide constituitur per Litiscontestationem quando non LItiscontestatio possessorem malae fidei constituit adeo ut ab eo Tempore ad restitutionem fructuum teneatur hoc tamen verum est in iis qui per Litiscontestationem vere in mala fide constituuntur veluti si res feudalis Emphyteutica petatur aut vindicetur ob feloniam commissam aut quia tempus locationis transactum est veraque sit causa vindicationis quam etiam possessor nec minus obstinate contendit Secus est si ego rem emo ab eo cujus esse putabam tu vero dicis eam ad te pertinere nihil adducis praeter petitionem nunciationem tunc quia bonam fidem habeo Litiscontestatio me non vera sed ficta efficit malae fidei possessorem a fructibus merito excusor donec sententia feratur Thes Besold in litera K. 48. verb. Kriegsbevvestigung Sect. pen. p. 478. Locus Poenitentiae AFter Articles of agreement are subscribed of which one is that they shall be extended in a Contract Quaeritur If there be Locus poenitentiae Ratio Dubitandi Because antequam totum negotium in mundum sit redactum licet poenitere L. 17. Cod. de fide Instrumentorum An agreement being to be perfected in Writ whereby one of the Parties was to be obliged to pay a Sum of Money there was a Letter Written thereafter by that person desireing that the Write may be drawn and bearing that he should perform conform to the said agreement Quaeritur If he be bound by the said Letter so that there is no Locus poenitentiae Answer It is thought that the bargain being to be perfected in Writ and until then there being locus poenitentiae The Letter promising performance doth imply a condition Viz. If the Write be perfected and subscribed seing upon the drawing of Writes there may arise Questions which may hinder the perfecting of the same multa cadunt inrer calicem c. M. Mare MAre dicitur esse de districtu illius Civitatis seu loci qui confinit cum Mari habentes Jurisdictonem in territorio cohaerenti Mari dicuntur habere Jurisdictionem in Mari intra centum milliaria Jus Fluviat p. 152. 496. n. 23. Marriage IF the Superior Infeft the Appearand Heir being unmarried doth he pass from the Marriage If Marriage be due if the Appearand Heir be either senex or valetudinary And either unfit or unwilling to Marry It seemeth Celibate is not Delictum so that the Casuality thereby should arise to the Superior but only the Marrying without the Superiors consent inferreth contempt and consequently Delictum poenam If the Appearand Heir be Married in his Fathers time and have Children and thereafter Marry after his Fathers decease will a Marriage fall to the Superior If the Marriage of the Appearand Heir of Ward-Lands should be modified with respect to the value of the Ward Lands without consideration of his Debts It appears that the Superior should not be in worse case by the Deed of his Vassal and yet he may be in better for if the Heir have beside a personal or other Estate the Marriage will be modified to be such as the Tocher to a Person of that Estate may be thought in probability to amount to If a Person holding of the King and other Superiors Respective of the King blensh but of them Ward may resign in the Kings hands to be holden Ward in aemulationem and of purpose to prejudge the other Superiors Saltcoats If Parties be Married publickly Quaeritur If it be not our that they are impotent as if it may be proven that before the Marriage the Man was Castratus is it competent to the Heir or any other person concerned in the point of Interest but the party
prejudged to question or dissolve the Marriage as null or dirimendum upon that or any other Ground If a Marriage be unlawful and either of the Parties be in bona fide which doth legitimate the Children Quaeritur If these Children will succeed with other Children of lawful Marriages at least to their Parents If they will succeed to their other Kinsmen or if the Legitimation will only import that they are not Spurij and that they have Testamenti factionem If a marriage after Inhibition may be reduced upon that ground What are the Legitima Remedia to compell parties to consummate marriage upon Contracts Whether they may not only be decerned by the Commissars but by the Church under the pain of Ecclesiastick censure Where some Lands hold of the King Taxt-ward and others hold of him Simple ward Quaeritur will he get both the simple Marriage and the taxt Sir Iohn Cuninghame saith it was decided in the case of Innernytie for both Marriage being dissolved within year and Day whether the Gifts and Jocalia given hinc inde may be repeated Item whether the gifts given by friends will fall under communion So that the Maxim that Marriage being dissolved within year and day is in the same condition as to all intents as if it had not been Is only to be understood of Dos Donatio propter nuptias If an old Woman super annos and past the age of Marriage being about Threescore years shall succeed in the Right of ward-Lands whether Marriage will be due Iohn Bonars Heir Quid Juris if a widow either man or woman inter annos nubiles shall succeed to Ward-lands Barclay of Pearstoun If a Person have only two acres or a mean interest in Ward-lands but a very great interest otherwise Whether will his Marriage be considered with respect to his whole Estate Seing the Marriage of appeirand Heirs belongs to the eldest Superiour Quaeritur who shall be thought the eldest Superiour whether the eldest as to the Lands or as to the Vassal and if it be to be considered which of the Lands was first given in Tennandry Quid Juris when a Marriage is fallen but not declared nor gifted A Marriage being contracted betwixt a woman Pubes and one that is impubes Quaeritur If it be a Marriage at least as to her so that she cannot marry with another in the interim that he is not pubes Ratio Dubitandi That a Contract being mutual cannot Claudicate A Father by his daughters Contract of Marriage having disponed to her and the second Son of the Marriage and the other Heirs therein mentioned his Estate under Reversion and certain other Conditions and in special if he should ordain a certain Sum should be payed by these who should succeed to the Estate to his Daughter and her forsaids and the said contract bearing also a Tocher of five Thousand pounds to be payed presently to the Husband Quaeritur If the Marriage be dissolved within year and day without Children whether the Contract will be ineffectual as to all intents as being causa data non secuta cum effectu Or whether it be as to the Right of the person of the Daughter either as to the Estate or as to the said Sum ipso facto void at least reduceable And whether she may repeat the Tocher from the Husbands Heirs Lady Yesters contract of Marriage being dissolved within year and day A person being Heir to his Father in a great Estate holden blensh And having a small piece of Land holding ward which he may succeed to as Heir to his Father Quaeritur If notwithstanding he is Heir general and Heir in special in the Lands holden blensh he needs not Enter to the saids ward Lands in order to be free of a Marriage which would be considered with respect to the whole Estate Ratio Dubitandi That being Heir as said is otherwise he cannot refuse to be Heir of the said Lands Answer It is thought that if he was charged to enter Heir in special at the instance of a creditor in special he could not renounce But the superior cannot urge him to Enter but will have only the benefite of a Nonentry Seing the said other Lands and any interest he had as general Heir are distincta patrimonia from ward Lands and he may owne the one without the other If the superior may affect and evict the said ward Lands by adjudication for the Marriage of the appearand Heir considered with respect to his other Estate in prejudice not only of the appearand Heir but of any who should thereafter be appearand Heirs Ratio Dubitandi That the Marriage being but a Casuality may exceed more than the double of the value of the Lands which is absurd Cogitandum If the appearand Heir will notwithstanding be lyable to the Marriage albeit he doth not enter nor renounce to be Heir as to these Lands Ratio Dubitandi That Refutatio of vassals is not admitted unless they satisfy the casualities already fallen Answer It is thought he may renounce and be free of the casualities personally without prejudice to the superior to affect the Ground and the case is different from that of vassals infeft Seing they having accepted the Right they cannot offer to renounce unless they pay what was formerly due to the superior being fructus Dominij whereunto not only the Ground but they are lyable personally by reason of their Right and possession and it cannot be said that the appearand Heir has either Mortounhall There being diverse Adjudications of Land holding ward within year and day but Infeftment only upon one and that adjudication whereupon Infeftment is being before the debitors decease and therefore stopping the Ward and the rest after but within year and day of the first Infeftment Quaeritur If the first be satisfied by intromission may the superior claim the Ward of the appearand Heir of the Debitor being Minor in respect the act of Parliament Debitor and Creditor doth relate only to the interest and and competition of creditors and doth not prejudge superiors of their Right and casualities and the adjudger Infeft is only vassal and the other adjudgers are not vassals and by them the superior can have no casuality either of Liferent Ward or Marriage Cogitandum L. Bancreiff When diverse Lands are holden of the King some in simple Ward and others Taxt as to the Ward and Marriage Quaeritur when the Marriage falls whether the King will have both the simple Marriage and the taxt Marriage Answer That since at one time there can be but one Marriage there can be but one Casuality for the same and as the King would have but one Marriage albeit there be diverse Lands holden ward of him simple-Ward So in the case foresaid where there are some taxt he cannot have two Marriages and the taxt being only aestimatio where there can be no Marriage there can be no Taxt due The same question may be of Lands holden simple and Taxt-Ward
accedat Rebellion A Bond being Assigned by a Rebel and the Assignation not intimate before the Rebellion Quaeritur Whether the Assigney or the Donator will be preferred Ratio Dubitandi That the Assignation denudes the Cedent and the Intimation is not necessary but to exclude another Assigney And the Rebel by his Rebellion does not transmit but amitts and Forefaults any Right that he has which being in nullius bonis is Domini Regis whereas it cannot be said that the Bond was in nullius bonis after the Assignation seing it is then in bonis Cessionarii Whether the Rebels Goods ought to be Lyable to Creditors SEing Bona are understood Debitis deductis and by the custom of all Nations when they are confiscate Transeunt cum sua causa and with the burden of Debts what can be thought the reason that it is otherwayes with us Answer It is thought that seing Lands when they are Forefaulted either to the King or to the Superior they return in the same manner ut optima maxima as they were given that condition being implyed in all Rights of Lands that the Vassal should be faithful and Loyal It has been thought but upon mistake That Moveables and other personal Estate should be confiscate in the same manner without respect to Debts whereas there is Dispar Ratio Lands as said is being given by the Superior with that quality whereas personal Interests are simply allodial and ought to be forth-coming to Creditors who though they have not a Right to the same yet have that Interest that they are the Subject of Execution and it appears to be unjust and to obstruct Trade if it should be otherways Recognition LAnds being Wadset for a Sum far below the value of the half with a Back-tack Quaeritur if there be ground for Recognition if the Land hold Ward Ratio Dubitandi The whole Lands are Wadset If Infeftments of Warrandice be Ground of Recognition A Vassal holding Ward giveth a Charter to his Subvassal or his singular successor upon Resignation with a Novo damus Quaeritur If the Novodamus will import a Recognition A Gift of Recognition being given of certain Lands whereupon the Donator is Infeft and therafter another Gift being given of the same in favours of of another person who is also Infeft after the former Donator but preveens by obtaining a Declarator upon his Gift the former not being declared Quaeritur Which of the Donators will be preferred Ratio Dubitandi That the first Infeftment seems to be preferable the Superior being thereby denuded And on the other part when Casualities and Escheats are Disponed which fall ex delicto as the case of Escheats by Horning There is no consummate Right before Declarator Whether an Appearand Heir if he Dispone and Infeftment follow the Lands will recognosce Ratio Dubitandi Quod nullum est nullum sortitur effectum And not being Infeft he cannot give any effectual Right Minors Disponing Ward Lands Quaeritur If they may be Reponed against Recognition Ratio Dubitandi They ought not to Reponed against Delicta after they are puberes Doli capaces And such Deeds importing Recognition are Crimina Delicta feudalia A Person being Infeft in Ward Lands with a Faculty and Power to the Disponer to Redeem and Dispone upon payment of a penny Quaeritur If the Disponer make use of that Power and do Dispone and if an Infeftment without consent of the Superior be taken whether there be Locus Recognitioni Ratio Dubitandi That he is not Vassal and the Superior has not consented that he should have and use that Power Lands holden Ward being Wadset for a Sum far beneath the value of the Lands with a Back-Tack Quaeritur If there be place for Recognition seing it is intended only that the Creditor should be secured and the Back-Tack Duty is within the half of the Rent Answer It is thought notwithstanding that there is ground for Recognition seing the whole property is Disponed and the Vassal has only a Superiority and is a Tennant only of the Property And beside the Superior has that prejudice that if his Vassal be Year and Day at the Horn the Liferent of the Property will not belong to him but only the Liferent of what is payable to his Vassal by the Wadsetter by the Reddendo of the Wadset Right and the Liferent of the Back-Tack will fall to the King and the Vassal may thereafter Discharge both the Back-Tack and the Reversion so that the Subvassal would have Right to the hail property without the Superiors Consent Redemption Heretable or Moveable QVaeritur If Lands being Redeemable and an order used will the Sum consigned belong to the Heir or Executor Ratio Dubitandi Surrogatum sapit naturam surrogati and the Defunct intended that the said Sum should be Heretable being fixed upon Land and the Debitor had no power to alter the Defuncts Intention as to the condition of any part of his Estate It is otherwayes when the same is consigned in Obedience to a premonition at the instance of a Creditor Vide. Executry quaest 2da in litera E. If a Declarator of Redemption doth denude the Wadsetter so that the Superior without any further Deed either of Renounciation or Resignation may Infeft the Granter of the Wadset If the Superior has receaved the Wadsetter and has given him a Charter bearing the Lands to be Redeemable will he be obliged upon Redemption to Re-enter the Granter without a Regress Ratio Dubitandi That the Granting of the Charter with that Quality seems to import a Regress Answer It is thought that it does not import a Regress it being a Provision betwixt the Parties and to be understood Civiliter that the Superior should not be obliged to Re-enter the Debitor being once denuded but upon such Terms as he shall think fit otherwayes there should be no use for Letters of Regress Order of Redemption AN Order of Redemption being used may the User pass from the same the other Party being unwilling An Order of Redemption being begun by Premonition at a certain time to receive the Money contained in the Reversion and before the term the person premonishing being deceased Quaeritur If his Heir being served before the terme may prosecute and compleat the order by Consignation Ratio Dubitandi Premonition may seem to be personal And e contra the Heir is Eadem Persona so that the premonished is not concerned whether he receive the Money from the Person himself or his Representatives Reduction WHen a Right is reduced Ex capite Minoris Aetatis or Circumvention or upon any other Ground so that the Infeftment whereby the Disponer was disseased is taken away Quaeritur If the Disponer must be re-seased Ratio Dubitandi Fictione Juris By the Reduction he is reponed as if he had not been disseased And on the other part Dissasina being facti quod factum est fieri infectum non potest And when Wadsets are Redeemed albeit the
the Forefaulture and Commission and Disposition made by vertue thereof and ratifying the same and conform thereto giving and Disponing the Lands therein-contained Ripae Ripatica USus Riparum est publicus cuilibet licet naves ad eas appellere Ripae enim hanc servitutem debent flumini cujus usus sine usu riparum nullus est servitus ista a natura imposita videtur ut usu fluminis concesso ea concessa intelligantur sine quibus eo uti non possumus Jus Fluviaticum p. 28. n. 362. Ripatica penduntur pro trajectione quae navi fit ab una Ripa in aliam sunt omnia Emolumenta reditus quae Princeps capit in Ripis fluminum vectigalia scilicet potestas cogendi ad muniendas Ripas Idem p. 30. n. 375. Quando Dies cedit in Grass Roums when there is Question betwixt Fiars and Liferenters IT being the Custom of the Country in some places That Lands consisting of Grass-Roums are Yearly set from Whitesunday to Whitesunday thereafter for payment of a Silver Duty at Martinmass after they are set Quaeritur Therefore If the Fiar survive the Whitesunday but dieth before the Martinmass if he will have any part of the Martinmass Duty Or if it will belong entirely to the Relict Liferenter or next Fiar Answer It is thought That he nor his Executors would have no part of that Duty being payed for the said Year betwixt Whitesunday and the next ensueing Whitesunday Seing he deceased as said is before Dies either cessit or venit Monmouth In some places Grass-Roums are set from Whitesunday to Whitesunday but the Term of Payment is Candlemass and Lambmass Quaeritur If the Fiar decease after Martinmass after it is set but before the first Term of Payment if he will have any part of that Years Duty Answer It is thought he will have the half and what ever be the Term of Payment Dies cedit at Martinmass for the half Year preceeding Seing for the Duty of Corn-lands though payable betwixt Yule and Candlemass yet Dies cedit at Whitesunday and Martinmass as in the Question foresaid Quaeritur What is the reason of so great difference betwixt these and Grass-Roums Answer That the Duty being payed for the Cropt the Terms of Whitesunday and Martinmass are respected so that the Fiar surviving Whitesunday his Executors have Right to the half of the Year upon that consideration as appears because the Lands are then fully laboured and Sowen and whoever survives Martinmass has Right to that Terms Duty because the Cropt is then fully collected But as to Grass-Roums set as said is at Whitesunday to Whitesunday thereafter the Grass only is to be considered which upon the matter is the Cropt of these Roums and the reason why the Duty of the whole Year is payed at Martinmass appears to be that before Martinmass the Grass-profites are collected by selling of their Wool and Beasts at or before that time Quaeritur If the Fiar decease after Martinmass and has not uplifted the Duty will the same divide betwixt him and the Liferenter And if he has uplifted the same if his Executors would be Lyable to refound the half to the Liferenter Answer Cogitandum For if it be not uplifted it appears reasonable that the Liferenter should have the half and if it be uplifted it appears hard that the Fiar having uplifted the same Jure suo bona fide should be Lyable to render any part of the same specially seing the Liferenter may have the same advantage if she should decease after Martinmass If Corn Roums should be set in the same Terms That the Duty should be payed at Martinmass after they are set Quid Juris Seing the said payment will be before the next Cropt and the Fiar may die before both the Terms of the next Year for which the Duty is due Answer It is thought that the Fiar cannot set the said Lands in manner foresaid in prejudice of the Liferenter And if the Tennent take the same that way it is upon his own hazard And the Liferenter would force him to pay the Duty after the ordinary Terms of the Country Quaeritur If a Tennent have a Liferent-Tack and he Die after Whitesunday If the Tack will not continue for that Year Seing the time of Removing of Goods necessary for labouring is past before his decease and Roums being set from Whitesunday to Whitesunday annus coeptus as to Labouring habetur pro completo Vide Annuum Legatum Quaeritur If there be not the same reason as to Liferenters in Labouring or possessing the Land with their own Goods seing their Executors cannot remove the Goods after that time and the Year of the Liferent is begun S. Act Salvo QVaeritur If Ratifications in Parliament with the Clause That they should not be Lyable to the general Salvo Will prejudge a third Petson having undoubted Right and having been secured by a general Law viz. The Act Salvo Jure The Ratification being only a private Act and the persons concerned not being called Seasin A Posterior Seasin but first Registrate whether will it be preferred to the prior Seasin Registrate thereafter though debito tempore Registration of Seasins IF a Seasin of Reversion granted by a Bishop will militate against the Successor albeit it be not Registrate in the Register of Seasins Ratio Dubitandi The Bishop doth not succeed as Heir And yet he cannot be said to be a singular successor and Bishops they are Corpora singula Special Services and Precepts of Clare constat A Person being served Heir-male or Provision in special in certain Lands and deceasing before he be Infeft Quaeritur If his general Heirs will be lyable to the Debt of that person to whom he was served Special Heir The same Question may be moved upon a Precept of Clare constat whereupon Infeftment has not followed seing in neither of the said cases there is Aditio Haereditatis before Infeftment whereas in general Services there is Aditio as to any Estate whereupon there is no Infeftment Servitude and Extinguishment thereof IF a Person who has Right to a Servitude out of other Lands should acquire also Praedium Serviens Quaeritur If eo ipso that he has Right both to Praedium Dominans Serviens the Servitude doth extinguish Quia res sua nemini servit and if he should thereafter Dispone Praedium Serviens whether the said Servitude not being reserved either he or his singular successor in the Right of the other Lands can claim the same Or if he should Dispone praedium Dominans without mention of the Servitude but with all Liberties and pertinents whether will that Servitude revive as being only Sopita for the time while both Lands belonged to one person but not extinct by any Discharge or deed freeing the Lands of the same If a person has constitute by Writ a Servitude and thereafter Dispone his Lands without excepting of the same Quaeritur If
Jus indivisibile possessio partis maketh it publick in Totum And it cannot be ex parte publick and ex parte non A Tack being set to a Tacks-woman during life and after to her Heirs until payment of certain Sums for Ten shillings yearly Quaeritur Will the Tack be void as without Ish Answer It appears that the Tack being set for security of Payment of the Money the Ish is not altogether uncertain Certum est enim quod fieri potest câ—rtum per relationem ad aliud and the Rent being One Thousand Pounds it may be considered in what time that Rent may satisfy the Sum mentioned in the Tack and upon the matter there is a Reversion to the setter and his Successors and they may determine the Ish of the Tack by payment of the Debt Lady Braid and her Son assigned the Tack whereof a Reduction was raised by Gorgymiln having bought the Lands Neither Servitudes nor Tacks do affect Lands in prejudice of singular Successors unless they be real by Possession Quaeritur If such Rights may be registrate in the Register of Reversions albeit the Act of Parliament doth not mention the same And if they be registrate if they will be real as Reversions Locatio conductio albeit they are not in Law inter Contractus qui re fiunt and by our Custom they are not effectual unless they be Re and cled with possession before which they are personal as to the Contracters and their Heirs but after that they become real Rights and bind singular Successors Quaeritur therefore if a Tack of Lands be set to a Person to enter at Whitsunday thereafter And thereafter another Tack be set to another Person before that Term so that neither can have Possession What way the second Tacksman may perfect his Right so that he may be preferred Answer It is thought he may make intimation of his Right to the present Tennent and require him to remove at the Term and protest for remeed of Law Quaeritur Why Tacks without Possession do not prejudge singular Successors and yet Tacks do prejudge beneficed Persons Answer Beneficed Persons are not singular Successors which properly are such as do acquire and purchase Whereas Prelats or Beneficed Persons are Successores Titulo Vniversali and are considered as singular Incorporations whose Deeds do bind their Successors When any Person is infeft in Teinds Quaeritur If he may set Tacks longer than during his Right in prejudice of the Buyers or other singular Successors A Tack being set to a Person for fifteen Years without mention of his Heirs or Executors Quaeritur Whether it be meerly personal Or at least the Heir if the Tacksman decease before expireing of the Tack should have Right during the time foresaid Answer It is thought that Tacks should be stricti Juris and there being no mention of Heirs the said limitation of time imports only that the Tacksman should have right if he should live all the said time and not after And in Tacks industria conditio Personae is to be considered if the Tennent be a substantious and vertuous Person whereas Heirs may be Infants and not succeed in the Conditions foresaid If a Tack be set by a Church-man to a Feuer and his Heirs succeeding to him in the right of the Feu if the Teinds of the feued Lands may be assigned there being no mention of Assigneys 2. If it may be Comprysed 3. If it cannot be assigned Will the Tack fall by the Assignation Tack of the Teinds of Paikie Back-Tacks and Prorogations WHat is the Reason that in Wadsets Back-tacks are valid without a definite Ish viz. During not Redemption Item In Prorogations Tacks of Teinds to begin after the Ish of the former though the Titular be denuded in the interim Answer In Wadsets the Back-tack is in corpore Juris and the Wadset is with the burden thereof the Wadset and Backtack being correspective Rights So that who succeeds in the Right of the Wadset can have it no otherwise than cum causa As to Prorogations they are granted in rem and by the authority of the Judge Tack of Teinds A Tack of Teinds being set to a Person and his Heirs and Assigneys for his Lifetime and four nineteen Years after Quaeritur If he be year and day at the Horn will the same fall under his Liferent Escheat only as to His Liferent or entirely If after his decease it would fall under the Liferent or under the single Escheat of his Heir If it be for many nineteen years exceeding the longest Life of any man Will it fall notwithstanding under a single Escheat seing there is not a formal Liferent constitute If a Tack for many nineteen years should be assigned will the same fall under the single escheat of the assigney seing there is no liferent as to him and the liferenters may all die in his lifetime Will not the Assigney have Right for the lifetimes of the Heirs though they be not served Heirs The Tack being for three Lifetimes and certain nineteen Years after Quid Juris Where the Tacksman has no Heirs so that there is place to a Gift of Bastardy or ultimus haeres Tacks of Lands being real by the Act of Parliament in favours of Tennents Quaeritur Quid Juris As to Tacks of Teinds TailÈies WHen a person having acquired Lands provides the same to his Heirs Male Quaeritur Whether the Maxime viz. Haereditas descendit Conquestus ascendit has place in TailÈies If a Tutor Intrometting with the Duties of Lands Entailed to the Heirs Male may not employ the same upon security to the Pupil and his Heirs Male upon pretence that it should be presumed that it was in the Parents intention as appears by the Entail Answer It is affirmed that it was so decided in the case of the Heirs of Cockburns-path which we have not seen But it is thought that a TailÈie being Institutio Haeredis as a Tutor could not make a Testament for his Pupil nor name an Heir and Executor for his Pupil so he could not make a TailÈie either in Land or Money There being a TailÈie in these terms that it should not be lawful to break the same and the Fee having descended to a Woman by vertue thereof who did notwithstanding resign the Fee in favours of the Husband and the Heirs of the Marriage which FailÈieing to the other Heirs of the former TailÈie and thereafter the said Heir of TailÈie having obtained a Decreet of Reduction of the said Right Ex capite Minoritatis for eviteing the hazard of the Clause irritant in the first TailÈie albeit the Right granted to her Husband was ratified in Parliament with the clause that the Ratification should not be Lyable to the Act Salvo Jure Quaeritur If the Husband be Forefaulted and his Posterity disabled if the Heirs of TailÈie having Right to succeed after the Wife and her Children may be prejudged by that Forefaulture Answer It is thought not
ordinary Clauses irritant for preserving of Families and with that in special to be added that it should not be lawful to any that should succeed to prejudge their Successors Delinquendo even by committing of Treason and if they be guilty of such Crimes that the Estate shall be Forfault as to themselves but not as to other Successors whether such a Clause will secure against Forefaulture Ratio Dubitandi That it would be an encouragement to Disloyalty 2do It is against the common Law pactis privatorum non derogatur Juri communi 3tio By the late Act of Parliament anent TailÈies it is provided that the King should not be prejudged as to Fines nor Confiscations nor Superiors of their Casualities On the other part it is thought there should be a difference betwixt these who by their vertue and purchase have founded a Family and these who succeeded in the Right of Estates acquired by Loyal and Virtuous Persons In the first case it is just that the person who has purchast and Entailed his Estate with such Clauses if he commit Treason should Forefault for himself and all his Successors In the other case it is hard that a person descended of an ancient and loyal Family should Fotefault an Estate not acquired by himself in prejudice of the Family and that the personal delinquence of one should weigh down the Merits of many Predecessors A Family being like a Ship out of which the Jonas that has raised the Storm should be cast and not the Ship and whole Family perish And upon the consideration foresaid it has been provided for the standing of Families even by Divine Law that it should not be in the power of one to Ruine the Family but the Successors Right should revive by the Jubile And by the Feudal Law in the begining Feuda were not Haereditaria so as that the Heirs and Successors should be Forefaulted by the deed of their Predecessors And when Feuda came to be Haereditaria there were some that were ex pacto providentia so that the Succession was settled in such a manner that it could not be cut off by the deed or Forefaulture of any of the Descendents but as to their own interest And there are yet Entails elsewhere and in England of the nature foresaid as V. G. of the Lord Grayes Estate which was the occasion that not only the Family but himself was preserved It being thought fitter that his Liferent should be confiscat dureing his Life than by his Death his Estate should go presently to his Brother And as to that pretence that Disloyalty would be thereby encouraged it is of no moment seing qui suae vitae est prodigus will be prodigus as to all other interests And albeit by the common Law where there is no provision to the contrary Estates are Forefaulted as to all intents yet provisio hominis tollit provisionem legis and there is no Law nor Statute with us disabling the King to give Rights with such provisions as are consistent with and suitable to the Divine Law and even the Civil Law Fideicommissa being in effect Entails and the Laws of other Nations and of his other Kingdoms and the Brocard pactis privatorum c. doth militate most when the certain form and modus habilis is prescribed by Law for conveyances or Testaments which ought to be precisely kept and observed without Derogation In other cases Provisio hominis as said is tollit legem As by our Law a Relict has a Terce of Lands and a third of Moveables and Marriage being dissolved within Year and Day the Tocher ought to return and in case ward Lands or the major part be Disponed they are recognised and if a Feu-duty be not payed in the space of two Years the Feu may be reduced and yet as to these and many other cases derogatur Juri communi pactis privatorum And as to the Act of Parliament concerning TailÈies it doth militate only in the case of TailÈies with the ordinary Clauses irritant anent the contracting of Debts or doing other Deeds so that albeit by the said Clauses irritant the Debts or Deeds of the Contraveener are void as to TailÈied Estates yet Confiscations and Fines in favours of the King doe affect the Estate and it is not provided by the said Act of Parliament that it should not be lawful for the King upon the considerations foresaid to grant a Right Entailed with the said Clause that the Estate should not be forefault in prejudice of the Entail and it cannot be said that the concession of a Prince qualifying his own Grant with such Provisions as he think fit is Pactum privatorum and seing other Superiors may so qualify the Infeftments and Rights granted by them to their Vassals that the Vassal should not forefault his Lands for Feudal Crimes for selling the Lands holden Ward without the Superiors consent or for being behind in payment of Feu-duties it is against Law and Reason to deny that power to the King to qualifie the Vassalls Right so that when Lands otherways would Forfault they should not Forfault in prejudice of the Family and Successors The Lands of Artloch being by Alexander Keith of Artloch Heretor thereof TailÈied to himself and the Heirs Male of his Body which failÈieing to the Heirs Female of his Body without division which FailÈieing to his Sister c. And having secured the TailÈie by Provision that it should not be in the power of any of the Heirs to alter the samen with Clauses irritant and resolutive whereby the controveening of the Terms of the TailÈie are declared to be a ground of amitting the Estate and devolving thereof upon the next Member of the TailÈie All which Clauses are insert in the Bond of TailÈie Charter and Instrument of Seasin following thereupon Anna Keith being the only Heir of the Marriage and so Heretrix of the Lands she by Contract of Marriage with John Forbes of Assure is obliged to resign and provide the saids Lands of Artloch to him and her in Conjunct-Fee and Liferent and to the Heirs-Male to be procreat betwixt them which failÈiening to the Heirs-Male of her Body which failÈiening to the Eldest Heir Female to be procreat betwixt them which failÈiening to the Eldest Heir Female of her Body which failÈiening to him and the Heirs Male of his Body which failÈiening to the Eldest Heir Female of his Body Which failÈiening to him and his Heirs and Assigneys whatsomever 1. Quaeritur Who is Fiar by the Conception of the TailÈie whether the Wife because she having been formerly Fiar the TailÈie was made upon her Resignation and so the Heirs of the Marriage must in dubio be Heirs to her Or whether the Husband by the Prerogative of the Sex and by the last termination of the TailÈie which resolves on his Heirs ut supra will be Fiar Or if the foresaid destination whereby the Wifes Heirs-Male or Female are preferred to the Husbands in all
the Branches of the Substitutions will alter the case 2. To whom the Heir of the Marriage could be served whether to the Husband or to the Wife 3. Hoc supposito that the Husband be Fiar whether or not the foresaid Contract whereby she puts the Husband and Heirs of the Marriage in Fee will be interpret in Law prejudical to the former TailÈie as a wronging thereof Altho the Husband was expresly obliged to assume the Name and Arms of the Family which compleats the design of all such TailÈies And whether the Contract being in Minority will be reduceible upon that ground 4. Altho it might be reduceible as debording from the first TailÈie by making him and his Heirs absolute Fiar yet if it may not stand in so far as concerns the Husband and the Heirs of his Body and be only reduceible in swa far as it alters and debords from the other Branches of the TailÈie TailÈie altered A Minor having contrare to the Clause irritant contained in his Fathers TailÈie altered the Succession and being Infeft upon the Resignation If the said last Right should be reduced Vide Homologation Quaest 2da in litera H. Quaeritur What way shall the Contraveener return to the former Right And whether by the Decreet reductive the former Right will revive as if the posterior had never been Or if the said person upon a Bill to the Lords must have a warrand to the Director of the Chancery for a New Seasin Seing by the Resignation and Seasin following thereupon there was de facto a Disscasin quod factum est infectum fieri nequit Countess of Buccleugh Teinds A Person having Right both to Lands and Teinds disponeth the Lands without mention or exception of Teinds Quaeritur If the Teinds be disponed Ratio Dubitandi That the Right of Teinds is an inferior interest and upon the matter a Servitude and burden upon the Lands and is extinguished confusione consolidatione as soon as it is in the Person of the Heretor as in the case of Servitudes Right of Annualrents c. Ennerpeffer and Bonshuw A Person having acquired by Infeftment a Right to the Teinds of his own Lands Quaeritur If the Teinds be confounded with the Right of the Stock that the Lands being thereafter disponed or comprysed without mention of Teinds The Buyer or compryser will have Right to the same as in the case of a Right of Annualrent Quaeritur If a Person having a Right to Lands cum decimis inclusis whether in that case the Buyer or compryser without mention of the Teinds will have Right to the same Seing the Brieve bears only a warrand to Enquire de Quibus terris annuis Reditibus the Defunct died vestitus without mention of Teinds Quaeritur What way a Person being only Infeft in Teinds his Heir may be served special Heir to him in the same When Teinds are in Non-entry Quaeritur If the Superior will have Right to the haill profits before Declarator Seing Teinds are not retoured and there is neither an old nor new Extent of the same Teind of Fish BOats for taking of fish lying upon the shoar in one parish and going thence and returning thither for taking and unloading but belonging to Persons dwelling in another neighbouring Parish Quaeritur If the Teind of the fish should belong to the Minister of the Parish where they are taken or where the Owners and fishers dwell Proving the Tenor. IF a Comprysing may be made up by proving the Tenor Answer It is thought not In respect By the act of Parliament the Tenor of Letters of Horning and Executions cannot be proven and there is Eadem Ratio as to comprysings And a comprysing is not of the nature of Scripta Instrumenta quae possunt refici being both of the nature of Executions and of a Decreet of the Messenger as Sheriff in that part And neither Executions of Messengers nor Decreets can be made up by proving the Tenor And it is not enough that Witnesses may remember and be positive that there was a Comprysing seing they cannot remember at least ought not to be trusted whether the comprysing be formal which being Juris they can neither be Judges nor Witnesses thereto Quaeritur If a Decreet for proving the Tenor can satisfy the Production in an Improbation Answer It is thought it should not no more than a Transumpt seing otherways the indirect manner may be cut off which ariseth upon the comparing of hand Write and other Circumstances from the Principal which is not competent when Extracts only of such Writs are produced And the Style that such Decreets should make alse great faith as if the Writs were produced is to be understood Civiliter viz. Except in causa falsi If Sentences or Acts of Court being lost the Tenor may be proven If Executions of Summons of Interruption being lost may be made up by proving the Tenor after the decease of the Messenger It is thought that they cannot Seing by the act of Parliament the Tenor of Letters of Horning and Executions cannot be proven And there is Eadem Ratio as to other executions made by Messengers which appears to be that viz That they are Servi publici and by the Law only trusted and authorized as to such acts and their relation of the same If the Tenor of Bonds may be proven Answer There is a difference betwixt Bonds and other Writs in respect Bonds are granted to the effect they may be satisfyed and retired upon satisfaction and Debitors think themselves secure when they retire and destroy their Bonds And therefore when a Bond cannot be produced Instrumentum penes Debitorem or which cannot be shown Praesumitur Liberatum unless there be a clear Evidence that they could not be satisfyed as that the term of Payment was not come or such like and Casus amissionis be positively libelled and proven as incendii rapinae or the like If a Comprysing may be made up by proving the Tenor Answer It is thought not for the Reasons foresaid Viz. That it is both an Execution and Sentence and the Tenor is so long when it is of so many Baronies and it contains so many Essential Formalities and Acts of Execution and the Witnesses to many several Executions that no person can declare that the Tenor libelled is exactly the true Tenor and Comprysings are of that nature that they may be satisfied and are deduced to the end they may be satisfied Lauderdale Decreets for proving the Tenor. THE Tenor of a Writ being made up Quaeritur If it will satisfy the Production in an Improbation The Granter or his Representatives being called to the making up of the Tenor and Compearing Ratio Dubitandi That as to a Third Party who has interest to question the Writ being a Creditor and having Comprised before the Decreet for proving and there being a prior comprysing upon the said bond there is Eadem Ratio as in Extracts Seing the means of Improbation in the
indirect way is taken away vide Transumpts Quaest 1. hujus Literae Terce A Person having disponed Lands bona fide but being prevented by death before the Buyer was Infeft Quaeritur Whether the Relict will have right to a Terce Ratio Dubitandi The Relict has a Terce of all Lands wherein her Husband died infeft and is not lyable to personal Creditors On the other Part it seemeth against Reason That the Husband having bona fide disponed and the Heir being lyable for the Implement the Relict should be in better case than the Heir who has no part and that the Relict should have only Right to a Terce of Lands undisponed and that there is a difference betwixt a Disposition and other Personal Debts seing a Disposition is Jus ad Rem which cannot be said of other Obligements And these Words That she should have Terce of all wherein the Husband died infeft ought to be understood Civiliter Viz. undisponed Quaeritur If Lands be redeemable Will the Relict Tercer have any part of the Money whereupon the Lands are redeemed specially when the Husband died infeft upon a Compriseing Ratio Dubitandi The Law gives unto Relicts only a Terce of Lands and not of Sums of Money and there is a difference betwixt a Tercer and a Liferenter who is provided to a Liferent of Lands under Wadset A Person being obliged for a most onerous cause to dispone his Lands and deceasing before Infeftment or Resignation Quaeritur If his Relict will have a Terce notwithstanding of the Disposition Ratio Dubitandi That it is hard the Relict should be in better case than the Fiar and Heir from whom the Lands may be evicted by a pursuit for implement And though the Husband died Infeft his Right was resolubile and such as might have been evicted from him 2do A Reversion is but pactum de retrovendendo and in this case there is a full Vendition and yet an order may be used upon a Reversion which will either prevent the Terce or extinguish it Quaeritur If a Reversion though not Registrate will militate against the Relict to prevent her Terce or to Redeem Ratio Dubitandi She is not to be considered as a singular Successor but as having a Right by virtue of and as depending upon her Husbands Right yet standing in his Person whereas he is denuded in favours of a singular Successor It is Indubii Juris That the Husbands Debts that are only personal do not prejudge a Relict of her Terce But Quaeritur whether a Comprysing before her Husbands decease will militate against her And if as to this point there be a Difference betwixt a comprysing whereupon the Superior is charged and whereupon there is no charge Quaeritur If a Disposition whereupon there is Resignation will prejudge a Terce Lands being Wadset for a certain Sum Quaeritur If the Relict of the Creditor will have a Terce both of the Lands and in case of Redemption of the Sum of money If a Wadset be to a Husband only and after his Decease to his Wife And an order be used and declared Quaeritur If she will get a Terce of the money And in that case whether the Executors will not only have Right to the two parts but to the third part of the Sums consigned with the burden of the Relicts Liferent Cogitandum A Lady by her Contract of Marriage being provided to a Liferent and infeft base in satisfaction of her Terce and what else she may pretend Quaeritur If the Superior questioning her Right as base she may have recourse to a Terce as renounced in behalf of the Husband and not of the Superior and the Renunciation being causa data intuitu of her Liferent he cannot debar her from the same and take any advantage by the said Renunciation The Lady Ballencreiff Quid Juris as to a Tercer being Liferenter of a third part Answer The difference betwixt the Liferent and Terce is That the Liferenters Right is anterior and certain but the Terce is posterior and uncertain So that the Fiar may sell the Lands in which case there would be no Terce vide Liferenter qu vltima Territorium TErritorium est universitas agrorum Jurisdictione munita Jus Fluviat p 42. num 513. Testament IF a Testament may be Holograph If a Movable debt be due to an English Man who is deceast must it be confirmed in Scotland è Contra If a Nuncupative Testament in England will have Right to a Debt due in Scotland Ratio Dubitandi it is valid in England mobilia non habent situm sequuntur personam on the other part corpora mobilia nomina though they have not situm as Lands yet they have it so far as being res Scoticae they cannot be transmitted but according to the Law of Scotland Law being rerum Domina Quid Juris if it be offered to be proven by the oath of the nearest of kin that the Defunct did before him and other witnesses above exception Name the pursuer his Executor and universal Legatar will a nuncupative Testament so proven be sustained Answer It is thought it will not Seeing nuncupative Testaments are not in our Law admitted And it is de forma that they should be in Scriptis Quaeritur If a Testament may be sustained by way of Instrument Answer an Instrument under a Notars hand being but the assertion of a Notar is not considered as Scriptum which requires the Subscription of the party himself or in subsidium by Notars before Witnesses de ejus mandato Quaeritur If one Notar subscribing for the Testator be sufficient in Testaments Answer Affirmative in respect of the great favour of last wills and oftentimes there is not copia Notariorum Ministers by Act of Parliament cannot be Notars but in the case of Testaments Quaeritur If eo ipso that they are Ministers they may be Notars in Testaments Or if they must be admitted Notars Answer Cogitandum Quae Ratio That a Testament made in France or Holland according to the custom there which is different from ours should be sustained in Scotland as to any Scots interest falling under the same If a Minor having Curators may dispose of his Estate by Testament without the Curators consent A Minor of thirteen Years or there about having made a Testament and named the person with whom he was boarded and bred in Family his Executor and universal Legatar without the knowledge or consent of any of his Friends Quaeritur whether the said Testament may be questioned upon Circumvention without qualifying any other circumstance but that it is Dolus in re ipsa to elicite from a person of that Age a Right to all his Moveable Estate in defraud of his friends Answer It is Casus arbitrarius and much will depend upon circumstances if the Defunct had no Relation to the Executor and if the Executor did suggest that the Defunct should make a Testament and employed the Writer and did inform the
as to two parts should die before separation Ratio Dubitandi That there is no Merces or duty payable by the Tennent he sowes the ground for his own use and for the use of the Master If the Wife should decease after separation whether in that case her Executor will have Right entirely to the Third and Teind seing they are fructus percepti in Bonis Mariti Vide. Liferenter Quaest prima in litera L. which Question may be proposed as to Third and Teind Titles of Honour IF there be Feudum Comitatus aut Reguli and the same descend to Heirs Portioners Quid Juris as to the Title When an Estate in Lands and Baronies is erected in Comitatum with the Title whereupon Infeftment follows Quaeritur If the Estate be Disponed or evicted by expired Comprysings Quid Juris as to the Title seing it is not given by Patent but by Infeftment as haereditamentum and accessory to the Lands A Patent of Honour being granted to a Person and his Heirs Quaeritur if any of his Heirs may surrender the said Honour in the Kings Hands for a new Right to himself and other Heirs than is in the former Patent albeit he was not served Heir himself Ratio Dubitandi He may sit in Parliament though he be not Heir On the other part though he be tolerate to sit in Parliament being Heir of Blood and no person being concerned to object yet he cannot dispose of such an Interest unless he be served seing Titles and Patents of Honour are not ex pacto providentia Gentilia but are Jura haereditaria belonging to these that first get them and their Heirs and may be Forefaulted A Title of Honour and Jus Civitatis being granted to the Receivers and their Heirs Quaeritur If their Heirs owning and making use of the same and not medleing or intending to medle with bona Defuncti will be Lyable as behaveing Ratio Dubitandi That such Interests and Capacities are not in bonis nor commercio and are res inaestimabiles and where persons are allowed beneficium Inventarii they cannot come under Inventar and be valued and therefore there needs no other Aditio but that they should owne the same and Creditors are not prejudged seing they are not the subject of Execution and Diligence and yet they may be Forefault these who have them for the time being quasi Heirs of Provision When Lands are Erected in Comitatum with the Dignity and Vote in Parliament Quaeritur If the whole Lands be Evicted or Disponed what becometh of the Dignity annexed to the same Ratio Dubitandi That Baronia is nomen dignitatis which is ever annexed to Lands and that Comitatus albeit a higher Dignity is of the same nature and therefore as a Barony being sold the Disponer does not retain the priviledges of a Baron so it ought to be in the case of Comitatus the Title being annexed to the Lands and given in consideration of the same and of the Estate sufficient to sustain the Title and that there is a difference betwixt a Title of Honour given by way of Patent and that which is annexed to Lands Cogitandum Titular IF the Titular be in possession of Teinds and die before Michaelmass Quid Juris Tocher IF either a Father or a Stranger be obliged to pay a Tocher and Marriage do not follow or be dissolved within Year and Day Quaeritur To whom will the Tocher pertain Ratio Dubitandi All such Obligements are Conditional and causa data On the other part it may be pretended that there is Fictio brevis manus and the same case as if the Tocher were given to the Woman to the effect that she may give it to the person whom she is to Marry so that though Causa ceaseth as to him it doth not cease as to the Woman which ordinarly is Affection and Relation to her and that she may be Dotata A Father having granted a Bond to his Daughter and thereafter having by a Contract of Marriage with her Husband given him a Tocher without mention that it is in Satisfaction of that or any other Provision If notwithstanding it will be thought to be in Satisfaction Ratio Dubitandi That either the Father cogitavit and remembred that he granted such a Bond or did not remember and if he did not remember that which was not thought upon cannot be said to be intended to have been satisfied and taken away and if he did remember and yet did not provide that the Tocher should be in satisfaction it cannot be thought that he intended that it should be so Lady Yester Quaestiones de Tractatu Suedico Bonis prohibitis Vulgo Counterband UBi exarsit bellum inter Reges Principes aut populos qui superiorem haud agnoscunt quae occasione belli ut plerumque fit exoriuntur controversiae quaestiones de navibus rebus aut hominibus in bello captis Jure patrio statutis aut moribus ejus gentis cui actor aut capiens subditus est haud judicandae aut dirimendae sunt Reus enim qui est extraneus eas leges nec noscere praesumitur nec agnoscere tenetur cum legibus moribus qui eodem Jure censentur nulla sit nisi in subditos authoritas 2. Juris quidem gentium in disceptationibus frequens est mentio verum in libris nihil aut parum certi de eo proditum est praeter generalia remota quaedam principia cum nullum sit Systema aut liber nec esse possit in quem omnes gentes consenserint ut pro Jure gentium authentico habendus sit 3. Inter omnes convenit ubi duo Principes aut Populi bello committuntur aliis Regibus aut populis qui isti bello haud implicantur subditis suis haud interdici aut minui libertatem commercii cum istis Regibus aut populis inter quos bellum est eo tamen temperamento moderamine ut neutri ex Adversariis vel prosit vel obsit noceat in ordine ad bellum quod plerumque fit vel opem ferendo vel advehendo bona prohibita vetita vulgo Counterband dicta 4. Vocabulum istud Counterband innuit praeviam prohibitionem Bona igitur Contraband sunt quae contra Bannum seu Edictum advehuntur prohibita sunt vel Jure gentium communi notorio vel speciali Banno seu declaratione ejus principis qui bellum gerit 5. Jure gentium belli extra aleam est ea bona esse Contraband quae per se immediate ad bellum spectant eo destinata sunt ut in bello vel offendant vel defendant nec ullius aut exigui sunt in pace usus ut Arma cujuscunque demum generis sint 6 Quae autem usus sunt ancipitis tum in bello tum extra bellum ut pecunia commeatus ejusmodi Ita demum Contraband vetita esse censentur si hostis ad incitas
on the other part surrogatum sapit naturam surrogati and it is due to be given ratione rei and a renunciation to be given by the Heir Quid Juris in the case of a Contract whereby Lands are sold and a price payable if the Buyer charge for implement and consign the price and the Disponer decease whether will it belong to his Heirs or Executors After Redemption of a Wadset or comprysing the Wadsetter or compryser dying whether is it necessary that their Heirs be infeft and re-renounce or if a renunciation will be sufficient the Wadset or comprysing being loused and extinguished by Redemption Wadset Heretable or Moveable WHen there is a provision in a Wadset-Right that requisition should not louse the infeftment Quaeritur If after requisition the Sum be Heretable or Moveable Ratio Dubitandi The Creditor declares his resolution to have the Sum And on the other part a Sum due upon a real Right appears to be Heretable It is thought that until it be actually uplifted it should be Heretable sed Cogitandum If the Wadsetter be year and Day at the Horn and thereafter the Wadset be redeemed Quaeritur If the Superior will have the Wadsetters Liferent of the Sum due upon the wadset If before Redemption the Wadsetter Dispone the Lands suppose they hold Ward will they recognise simply or only as to the Wadsetters interest Ratio Dubitandi The Wadset is upon the matter but a Hypotheck and he can forefault no more than he has And on the other part whatever paction be betwixt the Creditor and Debitor yet as to the Superior the Wadsetter is properly and formally his Vassal so that ex ejus persona he has all the fruits and casualities of Superiority If a Wadsetter holding of the King commit Treason Whether or not he forefaults the Lands or only his interest of Wadset Ratio Dubitandi As in the former Querie and that the King should have hominem vivum mortalem confiscantem and all the casualities belonging to his Superiority or to His Majesty as King ex morte vel delicto Vasalli and albeit the Right be redeemable yet that is to be understood alse long as the Right is in the person of the Wadsetter but not after it is Extinct by Forefaulture Wadset Proper IF a Wadsetter of Ward-Lands die before Redemption will the Marriage of his Heir fall And if it fall will the Debitor if he redeem be lyable to refound the avail In Proper Wadsets a great part of the Sum being paid will the Wadsetter be comptable for the duties effeirand thereto Ward A Compryser of Lands holden Ward being infeft Quaeritur If these Lands will Ward by the decease of the compryser and if the Marriage of his appearand Heir will fall Ratio Dubitandi a compryser is but an interim Vassal for suretie of his Debt And upon that consideration such a Right in England is considered as a Chattel and not Inheritance vide Comprysing quaest 14. litera C. If the comprysing be Redeemed will the Debitor be lyable to refound the damnage sustained by the Ward and Marriage Quaeritur If the Ward of the comprysers Heir will determine and expire upon the Redemption Quid Juris in the case of proper Wadsets if the Debitor after Redemption will be lyable to refound the foresaid Damnage The difference being that a comprysing is an involuntar Right and the Wadset voluntar so that the Creditor seemeth to take his hazard A Creditor being infeft in Ward Lands upon a Wadset bearing back-tack will they Ward upon his decease and the Minority of his Heir If they Ward will the Debitor have the benefit of the backtack during the Ward The Superior having in effect consented thereto We have seen a Charter granted to the Earl of Home viz. To George Earl of Home and Mareon Halyburton of the Earldome of Home and other Lands thereinmentioned some of them holding Ward Which Charter is granted to them in Liferent and to their Son Alexander in Fee dated in Anno 1538. which bears that though the said Alexander be infeft in Fee yet if the time of the Liferenters decease he be Minor his Ward and Marriage shall fall to the King Item It bears a reservation of Terce to the said Mareon notwithstanding of the said Fee If the Ward of a person who is Appearand Heir as to a Wadset Right do not determine by a Redemption of the Wadset And the same Question may be as to the Liferent of the person infeft upon the Wadset Answer It is thought that it will determine his Right being Jus resolubile And though the Ward be considered as fructus Dominii directi and being gifted it may seem that the Donator cannot be prejudged yet that is to be understood when the Vassal has an absolute Right but not when the Right is qualified and resolubile If the Appearand Heir of VVard Lands being pubes and Doli capax commit Treason will his VVard be determined vide Marriage questiones 17. 18. in litera M. Lands holding VVard being full the time of the Vassals decease by an Infeftment upon a Comprysing but the Comprysing being thereafter redeemed by the Debitors general Heir being Minor Quaeritur If the Superior will have the VVard Answer It is thought not seeing the Heir does not succed to the Lands as Heir to his Father who was not Vassal but as general Heir has Right to the Reversion whereupon he has Redeemed and Modus Forma is much to be considered If the Comprysing does extinguish being satisfied by Intromission Quaeritur If the Heir being Minor there will be a Ward in that case Answer It is thought not Seing the Comprysing does extinguish not ab initio but ex post facto and the Heir cannot be said to be the Appearand Heir of a Vassal the Lands being full as said is the time of his Fathers decease And albeit there is not a formal and ordinar legal reversion no Money being to be paid yet there is upon the matter Jus Retrahendi to the Appearand Heir vide Comprysing Quaest 37. litera C. Ward Lands QVaeritur A Superior of Ward Lands having confirmed a base Infeftment whether will the Subvassal be Lyable to the Ward or Non-entry falling by the decease of the Vassal Ratio Dubitandi Hope giveth only that reason in the case of Lands holden of the King that Confirmations bear a Salvo of all Rights Duties and Services By the Act of Parliament _____ The Superior during the Non-entry and Ward had Right only to the Feu-duty due to the Vassal by the Subvassal Quaeritur If the Superior be in the same case by the confirmation as he was by the said Act of Parliament notwithstanding the Act of Parliament 1606 in favours of Subjects Superiors of Ward Lands If the Appearand Heir of a Vassal of Ward Lands renounce to be Heir will his Marriage notwithstanding fall either single or double Ratio Dubitandi he was never Vassal and caelibatus is not
not starve and that his Grand-Father whom the Defender represents as Heir having provided him as said is to the foresaid Sum to be payed at the time foresaid did acknowledge that he was obliged to provide him being his Grand-Child and that until the time his provision should be payable he and his Heirs were lyable to his Entertainment being Debitum Naturale The Lords this day did Demurre And the case being of consequence as to the preparative thought fit it should be further thought upon D. 3. Ferguson contra More Eodem die IN the case Ferguson contra More the Lords Found That Compensation should not be granted against an Assigney upon a Debt of the cedent Assigned to the Suspender unless intimation had been made to the Cedent before the Chargers intimation of the Assignation made to him by the Cedent D. 4. Inter Eosdem eod die IN the same case two Persons being obliged Conjunctly and severaly as principal Debitors to pay a Tocher without a clause of relief pro rara It was found that de Jure inest D. 5. Pringle contra Cranston eod die IN the case Pringle of Greenknow contra Cranstoun Found that a subvassal being infeft by a Baron cum Curiis Bloodwitis may hold Courts and unlaw for Blood D. 6. Eleis contra Keith and Wiseheart 15. Decemb. 1665. IN the case betwixt Mr John Eleis and Mr Alexander Keith and Wiseheart It was Found That Elizabeth Keith Spouse to Mr William Wiseheart Minister at Leith having by Bond granted by her Husband and her obliged her self to pay to the said Mr. John the Sum of 6000. merks and for his further suretie to infeft him in certain Lands pertaining to her which bond contained a procuratory of resignation The said bond though null as to the obligement to pay the said Sum was valide as to the Right of the Lands And that the said Elizabeth having thereafter disponed the said Lands in defraud and prejudice of the said Mr John was lyable to the said Mr John and upon that ground The Lords found the said Mr John as Creditor to the said Elizabeth might question any fraudulent Rights made by her to his prejudice D. 7. Grants and Row contra Visc of Stormont eod die DAvid Viscount of Stormont having obtained a Decreet of Reduction against _____ Grants of their Right of certain Lands for not production _____ Grants and _____ Row did reduce the said Decreet against _____ now Viscont of Stormont upon production of the Rights called for in the first Decreet And in this Reduction The Lords did suffer and admit the said Viscount to insist in the said first Reduction he produceing the said David Viscount of Stormont his Right and instructing that he represents him Though the said first Process was not transferred in the Person of the said Viscount active and against the Pursuers of this Reduction passive and the summonds of Reduction whereupon the first Decreet proceeded was not produced Which The Lords allowed to be supplyed by production of the Decreet and a paper containing such reasons of Reduction as Stormont thought fit to give in And that in respect it was the fault of the Defenders in the first Reduction that the Writs were not then produced And they and these having Right from them being reponed it was just that Stormont and his Heirs should be likewise reponed D. 8. McLeod contra Young 19. Decemb. 1665. WAlter Young Harie Hope and _____ having Written to the Lord McDonald that they had commissionated _____ Donaldson to buy Cows for their use and that for such as should be bought from him they obliged themselves to pay all such Bills as should be drawn upon them and the said Donaldson having drawn a Bill upon the saids Persons and any of them Found that in respect they were partners and socii as to the bargain and the Lord McDonald had upon their letter trusted and sold the Cows to the said Donaldson they ought to be lyable in solidum conjunctly and severaly D. 9. Dickson contra Sandilands 21. Decemb. 1665. IN the case betwixt _____ Dickson of Killoch and Sandilands his Mother and her present Husband It was Found that a Husband being obliged by Contract of Marriage to provide the liferent of such Lands as he should acquire during the Marriage to his Wife in liferent and to the Heirs of the Marriage and his Heir being pursued for implement and for resigning certain Lands acquired by the Husband for a liferent to the Relict The Relict her liferent and Right should be with the burden of a Sum of Money borrowed by the Husband for making the said purchass as to the Annualrent of the said Debt during the Relicts Lifetime The Lords considered that though in order to other ends and effects and in special to determine the Succession in favours of an Heir of conquest whatever Lands are acquired by any person titulo singulari are esteemed Conquest yet in Contracts of Marriage such obligements anent conquest are to be understood of what is acquired by the Husband with his own means and Moneys seing what is acquired otherwayes the Price or a part of it being borrowed and the Husband being Debitor for the same upon the matter and in effect is not conquest and a free accession to the Husbands Estate in so far as the Price is a burden upon the Husbands Estate and as the Husband if he had been charged himself might have satisfied the obligement by giving an Infeftment with the foresaid burden so the Heir may do the same D. 10. Lepar contra Burnet 23. Decemb. 1665. IN the case betwixt Lepar and Dam Rachel Burnet and the Laird of Prestoun her present Husband these questions were agitated and decided 1. If a Husband get in Tocher with his Wife being an Heretrix more than an ordinary and competent Tocher which he might have gotten with another The Husband and his Heirs will be lyable after the Marriage is dissolved by the Wifes decease in quantum lucratus est for the Wifes Debt And the lucrum will be considered to be the benefit he has gotten above an ordinary Tocher 2. The Lords inclined to think That though a decreet of registration was obtained against the Wife and her Husband for his interest The Husband will not be lyable the Marriage and his interest ceasing And that an ordinary Tocher being ad sustinenda onera is not lucrum 3. Heirs portioners are lyable for their own part reserving action in case any of them become irresponsal and if the Creditor having done diligence cannot recover their parts he may have recourse against the rest 4. It was moved but not decided whether the others being non solvent The responsal Heir should be lyable for their proportion in solidum Or only for What he has gotten of the defuncts Estate D. 11. Bryand contra Grhame 3. January 1666. IN the case betwixt Mr Andrew Bryand and George Grhame The said George being constitute assigney to a
Bond granted by the said Bryaend to Thomas Iack And having charged thereupon The Suspender offered to improve the Bond and urged the charger to bide by the same which he was content to doe in these terms Viz. That he did abide by the said Bond as truely assigned and delivered to him by the cedent And that the cedent would compear and abide by the same as a true Bond. The Suspender answered that the cedent was lapsus and had come out of Prison upon a Bonorum and therefore he ought to find Caution to compear all the dyets of the Process The Lords found that the cedent should abide by the said Bond with certification that if he should not appear when the Lords should think fit for clearing the question anent the falsehood of the Bond by his oath or Examination the Bond should be declared to be void and to make no faith both as to cedent and assigney D. 12. Falconer contra E. of Kinghorn 4. January 1666. THe Laird of Drum as Principal and the Earl of Kinghorn and others as Cautioners being Debitors to Robert Falconar by a Bond granted in anno 1640 And the said Robert having pursued this Earle of Kinghorn as representing his Father upon the said Bond It was alledged the Bond was null as to the Earl of Kinghorn in respect there was no witness designed to his subscription And it being Replyed that two of the name of Lyon were subscribing witnesses and tho they were neither designed witness to Kinghorn his subscription but subscribed witness indefinite and albeit they were not otherwise designed as they ought to be conform to the Act of Parliament by their Dwelling or otherwise yet they were truely witnesses and the pursuer may and doth now design them and this Defender had no prejudice one of the witnesses being yet on life So that if he thought fit to improve the means and direct manner of Improbation was yet competent The Lords allowed the Pursuer to design which they would not have done if both the witnesses had been deceased D. 13. Lady Bute contra Sheriff of Bute 5. January 1666. THe Lady Bute Dam Grissel Campbel being Contracted and Proclaimed with Mr. James Grahame in the interim before her Marriage was induced and as she pretended forced to grant a Disposition and Discharge of a part of her Joynture in favours of her Son the Sherrif of Bute he having after the first Proclamation of their Bannes stopped any further proceding until he extorted the said deeds The Lords in a Reduction of the saids deeds at the instance of the Lady and her Husband found that post Sponsalia and Banna she was not sui juris and could doe no deed in prejudice either of her Husband or her self without his consent And that she was in the same condition as if she were Marryed And therefore the Lords found the reasons relevant for reduceing the saids Rights both as to her Husband and her self It was alledged that the Husband had consented in so far as after the saids deeds were done he knew the same and yet proceeded to Marry The Lords repelled the Alledgance D. 14. Oliphant contra Drummond 6. January 1666. IN a special Declarator at the instance of Sir James Drummond of Machany having Right by Assignation to the Escheat of the Lord Rollo and his Brother Sir John Rollo of Bannockburn from Walter Stuart Donatar to the same Sir Laurence Oliphant and Gavin Drummond Who were also Donators to the Escheat and liferent of the said Rebells and had recovered a general Declarator and had intented a special having compeared and desireing preference alledging that the pursuers gift was null and simulate in respect by the Act of Parliament 1592. cap. 149. Praesumptio juris de jure is introduced And it is statute that it shall be a relevant exception against any pretending Title by Assignation or Gift of Escheat of the Rebel to alledge that the Rebel his Wife and Bairns remained in possession and it was subsumed that the Pursuer and his Cedent had suffered the Rebel to continue in possession since the date of the Gift in Anno 1658. The Lords found that the Rebels having been in possession a considerable time by the space of five years or thereabout the Gift by the Act of Parliament is presumed to be simulate 2. That though the Donatar Walter Stuart was a Creditor it doth not alter the case Seing he might be and Law presumeth he was satisfied and Gifts being ordinarly affected with Back-bonds it was his fault that he was not satisfied And that he should not by his negligence and collusion prejudge other Creditors who would have Right after he had been satisfied 3. That the Pursuer having assigned his Right the assigney is in no better case utitur jure Authoris 4. That the reply that the Lands were comprysed is not relevant unless it were alledged that the Pursuer or his Cedent had done diligence to attain possession but was excluded by the compryser Jo. Hay Clerk D. 15. Brown contra Veatch and Scot. 9. January 1666. IN the case Broun contra Veatch and Scot It was found after contentious debate in Praesentia At the Barr and betwixt the Lords That an Infeftment of Warrandice base to be holden of the granter should be preferable to a publick Infeftment of property granted thereafter holden of the Superior and cled wih possession diverse years And that the possession of the Principal Lands should be interpreted the possession of the Warrandice Lands Some of the Lords were of another Iudgment upon these grounds 1. By the Act of Parliament Ja. 5. par 7. cap 150. Entituled provision and pains of them committand fraud in alienation and otherwise a publick Infeftment is preferable to a base not cled with possession though anterior And both the verba and Ratio Legis do militate in favours of the Heretor by a publick Infeftment The intention and end of the Law being to obviat fraud and prejudice by latent Infeftments And it being all one as to the interest and prejudice of the party who acquireth Lands whether the privat and latent Infeftment be a Right of property or Warrandice Seing an Infeftment of Warrandice when the principal Lands are evicted becometh an Infeftment of Property 2. The Act of Parliament foresaid of K. Ja. 5th is not taken away by the Act of Parliament K. James 6. Par. 17. anent Registration of Seasins in respect an Infeftment of property being base though Registrate and Anterior will be null in prejudice of a party who has acquired a Right by a posterior publick Infeftment And both the saids Acts of Parliament being remedia quae tendunt ad eundem finem though the hazard be not so great as to the prejudice by latent and private Infeftments since the Act of Parliament anent Registration of Seasins The said Act of Parliament 1617. doth not derogate to the Act of Parliament K. Ja. 5. 3. As to
that pretence That the possession of the principal Lands is the possession of the Warrandice fictione Juris It was Answered That there is no such fictio warranted by any Law and so it is Fictio but not Juris 2do It is a Fictio contra Jus cui Jus resistit in respect the Heretor by the publick Infeftment of property being in possession no other person can be said to be in possession seing there cannot be two Domini in solidum nor two Possessores by distinct Rights having no subordination or dependance one upon another as Liferenter and Fiar Superior and Vassal Master and Tennent or such like 4. It is clear that the possession of the principal Lands cannot be thought the possession of the Warrandice Seing if after Fourty Years the principal Lands should be evicted and a pursuit for Warrandice and recourse should be in ented upon the Right of Warrandice though Prescription cannot be obtruded yet if there be any defect in the Infeftment of Warrandice as v. g. The Disposition is subscribed by one Notar or such like The same may be alledged Whereas if that Infeftment were cled with Fourty Years Possession the Right would be prescribed and could not be questioned upon any Ground whatsoever but Falsehood In this Process It was Questioned whether the Heretor who had the publick Infeftment having been in Possession above Seven Years should have the benefite of a possessory Judgement until a Declarator and a Decreet in petitorio Some of the Lords thought that in the case of Warrandice the Heretor should not have the benefite of a Possessory Judgement against the Pursuer upon an Infeftment of Warrandice quia non valebat agere But the question was not decided D. 16. Cranston contra Wilkison 14 July 1666. BEtwixt Cranston and Wilkison It was Found Newbyth Reporter That a Person being conveened as representing his Father who was alledged to be vitious Intrometter to the Pursuers Debitor the Title being passive and penal could not be a Ground of Action against the Defender to make him Lyable to the whole Debt But only in so far as should be proven the Defunct did Intromet and was Locupletior quia actio poenalis non transit inhaeredem And the Defunct if he had been pursued in his own Life might have purged the said Title D. 17. Burnet contra Johnston 17. July 1666. JOhnston of Frosterhil having Disponed his Lands with absolute Warrandice in favours of Gordon of Birsemoir Reserving his own and his Wifes Liferent and thereafter having Disponed the same Lands in favours of Mr. William Johnston who did obtain the first Infeftment And being charged at the instance of Alexander Burnet having Rght by Assignation to the Disposition in favours of Birsemoir The Letters were found orderly proceeded notwithstanding the Suspender alledged the Charger had no interest dureing the Suspenders Life Seing he never did nor could possess by reason of the Reservation foresaid And the Lords found a difference when Warrandice is craved upon a deed of the Party obliged and upon any other ground And that as to his deed he may be charged to purge it without necessity to alledge a Distress D. 18. Wedderburn contra Scrimzeour 18. July 1666. A Father having left a Legacy thinking his Wife was with Child in these terms That if his Wife should have a Male Child the Legatar should have the Sum of 4000 Merks And that if she should have a Daughter the Legatar should have the Sum of 5000 Merks The Lords Found That though she had no Child the Legacy should be effectual ex praesumpta voluntate Testatoris seing it cannot be thought but that he rather intended a Legacy for him if he had no Child Than in the case she should bring forth a Child Et in conditionibus primum locum obtinet voluntas Defuncti eaque regit conditiones L. 19. ff de conditionibus Newbyth Reporter D. 19. Steill contra Hay Eeod die A Tennent being Ejected Ejection was sustained at the Masters instance though the Tennent did not concur But it was not sustained quoad omnes effectus viz. As to violent profits Juramentum in litem but only that the Master should be in the same condition he was before the Ejection and should have the same manner of possession as if the Land were not void and to uplift the duties and to put in and remove Tennents And for the Bygone ordinary Duties in the same Process it was Found that the pursuer though he was not Infeft but only Appearand Heir to the Pursuer who was Infeft might pursue the said Action to recover his Possession having been in possession before D. 20. Hedderwick contra Wauch Eod. die THE Commissioners for the Borders upon the Verdict of the Inquest that the Pannel was guilty of Receipt of Theft having ordained the Pannel to pay 100 lib. Sterl within a short time and if he should faill to be sent to Barbadoes and loss his Escheat The Lords Found That by that Verdict there did arise to his Majesty the Casuality of his Escheat Whereof there being Jus quaesitum The King and his Donator could not be prejudged by a Doom which is contrary to Law And that in such cases of Capital Crimes the Law having determined the pain and especially the loss of the Escheat no Judge even the Justice General could moderate or lessen the samen D. 21. Bisset contra Broun 19 July 1666. IT was Found nemine contradicente That a Stranger residing in Holland animo morandi or elsewhere Though by the Law of the place his nearest of Kin without confirmation has Right to all Goods or Debts belonging to him Yet if the Debt or Goods be due by Scots-men or be in Scotland they cannot pursue for the same unless the Right thereof be setled upon them according to the Law of Scotland by confirmation if they be Moveables Or by a Service if they be Heretable Hay Clerk D. 22. Thomson contra McKitrick Eod. die FOund that a Comprysing may be deduced upon an Heretable Bond whereupon Infeftment had followed the same being payable without requisition albeit a Charge of Horning do not preceed seing there may be poinding upon such a Bond And there is Eadem Ratio as to Comprysings and the Denounciation is a sufficient Intimation that the Compryser intendeth to have his Money Hay Clerk In the same Cause The Lords having sustained a Seasin of burgage Lands whereto the Sheriff-clerk was Notar there being no Town Clerk for the time by reason in the time of the English Usurpation The Magistrates and Clerk refused the Tender The Lords Found That the said Seasin being within Burgh though not under the hand of the Clerk was not null upon that Ground that it was not Registrate Because though the reason of the Act of Parliament for Registration of Seasins and the exception of Seasins within Burgh be that Seasins within Burgh are in use to be Registrate by the Clerks in the Towns Books
yet the said reason is not exprest in the Act of Parliament and the Act of Parliament excepting Burgal Seasins the Party was in bona fide to think that there was no necessit of Registration D. 23. Eleis contra Wiseheart Eod. die A Wife being obliged with her Husband to pay a Sum of Money and to Infeft a Creditor in her Land Though the Bond was not sustained as to the personal obligement to pay yet it was found valid as to the obligement to Infeft and the Procuratorie of Resignation contained in the Bond And the Wife notwithstanding having Disponed her Land she was found Lyable for the Sums as Damnage and Interest This Decision seemeth hard In respect albeit a Woman may Dispone her Land with consent of her Husband yet she cannot bind to pay a Sum of Money And in the case foresaid non agebatur that she should Dispone her Lands But that she should be Lyable to the Creditor and for surety he should be secured in her Land And the principal obligation being void the accessory of surety could not subsist D. 24. Eodem Die IT was debated but not decided whether the Tenor of a Comprysing may be proven there is an Act of Parliament Ja. 6. Parl. 6. That the Tenor of Letters of Horning should not be proven and there is Eadem if not more Ratio as to Comprysings the Solemnities being greater and more And if a Comprysing which is in effect the Execution of a Messenger may be made up by a probation of the Tenor a paritate rationis Poindings and Interruptions of Prescription by Citations and Executions and Intimations of Assignations may be made up by Witnesses and Arrestments and Decreets D. 25. Minister of Moram contra Bairfoot Eodem die THE Minister of Moram having pursued a Reduction of a Tack set by his predecessor upon that Ground that it was above three years without consent of the Earl of Buccleugh Patron for the time The Tack was sustained in respect Francis Stuart had consented in whose Favours Buccleugh by a Decreet Arbitral was obliged to denude himself of the Patronage This Decision seemeth to be hard seing Buccleugh was full Patron and was not denuded by the said Decreet And the Right of the Patronage might either have been Comprysed from him or Disponed by him effectually notwithstanding of the said Decreet which did not settle the Right of the Patronage in the said Francis his person but was only the Ground of a personal Action against Buccleugh for denuding him of the Right of the Patronage And as Francis could not present so he could not consent as Patron to Tacks Upon these considerations diverse of the Lords were of the contrair Opinion D. 26. McKenÈe contra Fairholme 24. July 1666. IN the case of MckenÈie against Mr. John Fairholme Sir George Mckenzie having by way of Reduction questioned a Bond granted by his Father and himself as Cautioner as null ipso facto Upon that Ground that he was Minor when he Signed the Bond And his Father being Administrator of the Law and in effect Curator to him had not Authorized him as Cautioner and could not be author in Rem suam the Pursuer becoming Cautioner in Rem and at the desire and in behalf of his Father The Lords did not this day decide the Question some being of Opinion That a Father though if his Children be Impuberes and Pupils be the Tutor and Administrator of Law ye he is not Curator to his Children being Puberes Seing a Son if he should desire other Curators to be given him his desire could not be refused Et habenti Curatorem Curator non datur Vide infra 26. July 1666. And 7. Decemb. 1666. D. 27. Petrie contra Richart eod die RIchart of Auchnacant having a Wadset of 12000. Merks from Buchan of Portlethem did thereafter enter in a second Contract with Buchans Son and Heir who had Right to the reversion and diverse years Back-tack-duties being accumulated and made a Principal Sum it was agreed that there should be no Redemption but by payment of the Sum contained in the said second Contract made up as said is of the Sum contained in the said second Contract and the Back-tack-duties and by payment of the Annualrents so accumulated Mr Petrie Provest of Aberdeen having acquired the Right of reversion and having used an Order of Redemption and thereupon having intented Declarator it was alledged that he should have consigned the Sum contained in the said second Contract which he could not misken by reason as he not only knew of the said second Contract before he acquired the said Right but acted in relation to the said Contract and in effect homologate the same In so far as 1. By the said second Contract he and certain other persons being named and appointed to determine the question betwixt Richart and Buchan what should be paid to Buchan for the charges he had been at in prosecuting his Right against Richart The said Petrie had accepted a submission relating to the said second Contract whereupon a Decreet arbitral did follow ordaining 300 merks to be paid to Buchan for his charges 2. By the second Contract Buchan was obliged to cause Petrie being his friend to give bond that he shovld engage for Buchan's performance of the said second Contract and accordingly Buchan being charged to fulfill that head of the said Contract had procured a Bond from the said Petrie and produced it in Judgment the time of the discussing of the suspension 3. Petrie had assigned the 300. Merks of charges modified by himself and the instrument of intimation of the Assignation mentioned the said Sum to have been modified by the Decreet arbitral proceeding upon the said Contract From these Acts it was urged that knowing and having homologate the said Contract in manner foresaid he was in pessima fide to take a Right in prejudice of the Defenders and to pretend to be in better case than his Author The Lords notwithstanding Found that the said second Contract not being Registrat in the Register of Reversions he was not obliged to take notice of it and might redeem by payment of the Sums contained in the first Contract It was acknowledged by some of these who were for the decision that these Acts imported an Homologation But the second Contract though by our Law valid was not favourable and was against the common Law in so far as the accumulating Annualrents to be a principal Sum is usura usurarum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I have often urged that favour is not nomen juris and Law ought to be uniform and not Lesbia Regula plyable and variable upon pretences of favourable or not favourable Sed nunquam credita Teucris Cassandra D. 28. Harper contra Hamilton 25. July 1666. IN the case Mr John Harper contra Hamilton his Vassal It was decided that after the intenting a general Declarator of Non-entry the Vassal should be lyable not only for the retoured dutie but
Lands after his Majesties Restauration he was induced tho there was no Question as to the Debt to make a Reference and Submission to the Laird of Cochran and Sir John Fletcher upon no other account but that he apprehended that Newburgh might trouble him and cause him be fined which was the ordinary and Ignoble practice of Noblemen at that time against their Creditors These Arbiters did take from the said Sir William a discharge of the Debt and renunciation of his Right and from Newburgh a blank bond as to the Sum and the said Debt then amounting to 40000 merks they did give to the Earl of Newburgh the Renunciation and to Sir William Newburgh's simple bond filled up with 6500. Merks only Newburgh pretending that Sir Alexander Durhame then Lord Lyon was owing him Money did by way of letter give a precept to the Lord Lyon in these terms That he desired him to pay that Sum to the bearer upon sight and that he should retire his bond This letter being presented to the Lyon he in a scornful and jeering way subjoyned to the letter My Lord I am your Humble Servant the Earl of Newburgh not satisfied to have payed Sir William in manner foresaid as to 3400. Merks did intent a pursuit against Sir William That he might be free of the Residue and get back his Bond of 6500. Merks upon that pretence that the said Sir William had got from him a Bill of Exchange which had been accepted by the deceast Sir Alexander Durham at the least in case of not accepting he should have protested and intimated to Newburgh that it was not accepted nor satisfied that he might have recourse against the said Sir Alexander in his own time whereof he is now prejudged Upon a Debate in praesentia It was Found that the said letter was not a Bill of Exchange but a precept and that the receiving of such precepts upon Chamberlanes and others being for the Creditors further suretie do not oblige them to the formalities of presenting protesting and intimating which are in use in the matter of Exchange and Trade betwixt Merchant and Merchant Advocats Lockhart VVallace contra VVedderburn and Chalmers D. 38. Crawfurd contra the Town of Edinburgh last of July 1666. A Donator by a Gift of Vltimus Haeres having Pursued for a movable Debt due to the Defunct The pursuit was not Sustained because the Gift was not declared D. 39. Gray contra Gordon eod die A Bond being granted to Sir Robert Farquhar and bearing the term of payment to be diverse years after the date of the same and Annualrent to be payed in the interim termly and yearly Was found to be Heretable quoad Fiscum Though Sir Robert Farquhar had deceast before the term of payment of Annualrent And the assigney was preferred to a Donatar D. 40. Halyburton contra Halyburton eod die A Son having intented a Reduction of a disposition made by his Father for provision of the rest of the Children In lecto aegritudinis The Lords found the Defence relevant that the Pursuer had consented in so far as the Son had Subscribed as Witness and knew and heard the disposition so that he was not ignorant of the tenor of it And it was remembred by the Lords when they were voting that they had found the alledgance relevant That a Son and appearand Heir that Subscribed as Witness to his Fathers deed in lecto without that addition that he heard it read in the case of Stuart of Escog It being to be presumed that the appearand Heir being of age would not be Witness to such deeds unless he inquired and knew what they were D. 41. Cuming contra Johnston 7. Novemb. 1666. SOme Lands in Dumbar being disponed by one Adamson in favours of Johnstoun with a provision contained in the disposition and Infeftment that a Sum of Money should be payed by the receiver of the disposition to him or any he should name And in case it should not be payed the Right should be void And the saids Lands being thereafter apprysed It was found against the compryser that the said clause and provision was real And that the person named and having Right to the Sum and benefit of the said clause Though before declarator he could not pursue a removing yet he has good interest to pursue for the mails and duties for payment of the said Sum and being in possessorio to retain the mails and duties for payment of the said Sum pro tanto And that the said provision and such like are effectual against singular Successors It was urged by some That all that could be done upon that Clause was that a Reduction of the Right might be pursued thereupon But it was answered that it being actum that the Lands should be burdened with that Sum and if nothing more had been exprest but that it is provided that the said Sum should be payed the said provision being real would have furnished the said action and exception for payment of the said Sum out of the maills and duties And therefore the subjoyning the resolutive clause being ad majorem Cautelam could not be prejudicial nor retorted in prejudice of the disponer nor his Assigney This Question was hinted at but not decided in the said Debate viz. If the Declarator should be pursued upon the said clause for annulling the Right if it should operate in favours of the Assigney the Lands not being disponed to him in case of contraveening being to appertain to the disponer and his Heirs in case the Right should be rescinded It s thought that the provision being assigned the whole benefit and consequence of the same are disponed and consequently the assigney in the case foresaid of annulling the Right may pursue the Heirs of the Disponer and receiver of the Right and his Successor to denude themselves of the Right of the saids Lands Newbyth Reporter D. 42. Hay contra Magistrates of Elgin eod die IN the case Colin Hay against the Magistrats of Elgin Improbation being proponed against the Executions of Messenger bearing that he had intimated to the Magistrats that he had arrested a prisoner at the instance of the said Colin And the Magistrats and Witnesses compearing and urging to be examined It was alledged for Colin that they should not be examined Because the Messenger who was also cited was not present and that if he were present he might condescend upon circumstances and remember the Witnesses that they had been Witnesses it being otherewise incident to them to have forgotten though they had been truely Witnesses to the Execution It was answered for the Magistrats that they had cited both Witnesses and Messenger that they had done all that was incumbent to them and his not appearance ought neither to prejudge them nor the Witnesses And that having come in obedience to the citation they should not be troubled to come here again their Residence being at such a distance The Lords indulged so far to Colin as
to delay the Examination of the Witnesses until further diligence should be done to bring here the Messenger Me Refragante but ordained Colin to pay the expences And if it had been desired that if the Witnesses should die they should be holden as improving The Lords would have granted the desire D. 43. Carse contra Carse 8. Novemb. 1666. DOctor Carse having taken a Right of Annualrent out of Sir David Cuninghams Lands in the name and persons of Mark Carse of Cockpen and Adam Watt Writer and a comprysing thereafter deduced in their name to the behoof of the Doctor for some arrears of the said Annualrent not only out of the Lands out of which the Annualrent was due holding blench or feu but of other Lands holding Ward Charles Carse Son and Heir to the said Doctor pursued the said Mark Carse and the Heir of Adam Watt to denude themselves of the Right of the saids Lands conform to a Backbond granted by the said Mark Carse and the said Adam Watt declaring the trust In that trust it was alledged for the Defenders that they were content to denude themselves they being releeved of all hazard they might incur upon occasion of the said Trust and having that Right in their Person and to that purpose did offer a Disposition bearing a provision that the Right should be burdened with the relief of Wards Marriages and Ministers Stipends Cess and other such hazards It was Answered that the said Disposition ought not to be clogged with such a provision which would fright Buyers from purchasing the saids Lands and the pursuer was necessitat and had presently an occasion to sell the saids Lands And as to the incumberances and hazards which the Defenders should condescend upon they should be purged But as to the Marriage of Adam Watts Heir which was condescended upon there could be no hazard upon that account In respect the comprysing at the instance of Mark Carse and Adam Watt was the fourth comprysing which did only import a Right of reversion The first comprysing whereupon Infeftment had followed carrying the Right of property It was Duplyed that if it should appear that the former apprysings are either null or informal or satisfied the fourth Apprysing would carry the Right of property and consequently the Marriage The Lords Found that the Pursuer should accept the Disposition with the burden of the said relief Or in his option should secure the Defenders by a Bond with a Cautioner to releive them D. 44. Bowie contra Hamilton 10. Novemb. 1666. HAmilton of Silvertounhill having Disponed to James Bowie certain Lands whereto he had Right by Comprysing and the said James being removed at the instance of a Wadsetter and having Pursued upon the Warrandice contained in the Disposition It was alledged by Silvertounhill that though the Disposition did bear absolute Warrandice yet by a Margine subcribed it was restricted to warrand only the formality of the Comprysing and the truth of the Debt and the Executions It was Answered that the Warrandice being absolute in the Body of the Disposition was indeed qualified by the Margine that it should only be extended to the Warrandice of the Lands in so far as concerns the Apprysing and Sums thereinmentioned which are the words of the Margine and that the said Warrandice imports that the Disponer should not warrand simply but as to the Sums contained in the Comprysing so that in case of eviction Silvertounhill should only refound the same and the Pursuer was content to restrict the Warrandice to the Sums payed by him It was urged that there being Three kinds of Warrandice viz. Either absolute or only that the Comprysing was formal and the Debt just or a restricted Warrandice to refound the price in case of eviction the Last was Medium inter extrema and most equitable and in obscuris magis aequa interpretatio est contra Disponentem facienda qui potuit Legem apertius dicere And if it had been intended that he should warrand only the formality and validity of the Comprysing and reality of the Debt it had been so exprest Yet The Lords by plurality of Voices Found that the Warrandice should be interpret to warrand only the validity of the Comprysing and the reality of the Debt That being the most ordinary in Rights of Comprysing Sinclar alteri Harper D. 45. Cheine contra Christie 15. Novemb. 1666. GEorge Cheine Pursued Adjudication against David Christie of a Right of Annualrent which pretained to James Christie the said Davids Brother the Pursuer's Debitor James Cheislie Writer compeared and alledged he had Right to the Lands craved to be adjudged by an expired Comprysing of the property of the same against the said David Christie who had Right to the saids Lands and that the said James his Right of Annualrent was null being base and never cled with Possession The Lords Found that the alledgance was not competent hoc loco against the Adjudication and that the said debate would only be competent after the Adjudication when he should pursue a poynding of the ground The Lords Found the contrare before in an Adjudication Pursued by Sornbeg contra the Lord Forrester which practique was obtruded and not respected Because the Lord Forresters Right in that Case was clear And this the Lords thought hard Forrester being content to dispute his Right that a Right to his Lands should be established in the Person of another to trouble him But it were fit our Practiques were uniform And it appears hard that a Creditor who is a stranger and has not the papers in his hands and is not in a Capacity to pursue for them before he get a Title by Adjudication should be forced to Dispute his Debitors Right Newbyth Reporter D. 46. Abercrombie contra eod die FOund that a Pursuit upon an Assignation after the Summonds execute should not be Sustained though the Cedent concurred the Pursuit not being at his instance Newbyth Reporter D. 47. Kennedy contra Hamilton eod die THe Lords Found a Comprysing upon a charge to enter Heir null Because the person at whose instance the charge was had no Right to the Debt the time of the Charge the Assignation whereby he had Right being acquired thereafter so that the Charge was Inanis and without ground Me referente D. 48. Binning contra Farquhar Eod. die A Disposition being made by a Father in favours of a Son And thereafter the same Lands being Disponed by the Son in favours of his Brother in Law The said Rights were questioned by a Creditor as being fraudulent being Disponed by the Sons Contract of Marriage which though Onerous as to Provisions in favours of the Wife is not so as to the Son whom the Father could not advance or provide in prejudice of the Creditors But it was alledged that the Disposition made by the Son was for an Onerous Cause and by the Act of Parliament though a Right should be found fraudulent yet a third party acquiring bona fide
Bonds and to procure Discharges from the Creditors to Parkley and his Cautioners And nevertheless having payed the said Sums he did not take Discharges but Assignations to the saids Bonds which he filled up in the name of Sir Mungo Stirling of Gloret his own Creditor who did thereupon Arrest a Sum due by the Earl of Callender to Parkley Thereafter Captain Monteith having Right to Callendars Debt by Assignation from Parkley obtained a Decreet against the Earl which being Suspended upon double poinding It was alledged for Gloret that he ought to be preferred in respect of his Assignation and Arrestment whereunto it was Answered that Kinglassie being obliged as said is to pay the saids Sums had payed them and whereas he should have taken Discharges he had taken an Assignation Blank in the Assigneys Name and had filled up Glorets Name in the same So that Assignation being procured by him and lying by him and he being Master of it it was in effect his and he was in the same case as if the Assignation had been granted to himself and he had made a Translation to Gloret in which the Exception upon the obligement foresaid to relieve Parkley as it would have been competent against Kinglassie would have secluded also Gloret his Assigney by Translation In this Process Gloret his Oath being taken and he having declared that the Assignation was procured by Kinglassie and by him delivered to Gloret and that he payed nothing to the Cedent but that the Assignation was given to him by Kinglassie that he might be satisfied of certain Sums due to him be Kinglassie which he was to Discharge if he recovered payment by vertue of the said Assignation The Lords upon a Debate in praesentia preferred Monteith and found the Exception which was competent against Kinglassie if the Assignation had been to him and transferred by him to Gloret is competent against Gloret and that he is in the same case as if he had Right by Translation from Kinglassie This is most just and founded upon Law and Equity seing otherwayes Fraud cannot be obviate And in Law plus valet quod agitur quam quod simulate concipitur aut exprimitur And Fictione brevis manus Though it appear that it is but one Act viz. The Assignation made to Gloret yet in construction of Law there is two Acts viz. The granting the Assignation blank to Kinglassie which in the interim before it was delivered to Gloret was his evident and an Assignation immediatly made to himself and thereafter the filling up Glorets Name and the delivery of the Assignation to him which upon the matter is a Translation Spotswood for Monteith Lockheart Cuninghame Maxwell and Weir for Gloret D. 55. MckenÈie contra Fairholm Eod. die SIR George MckenÈie having intented Declarator and Reduction of a Bond Subscribed by him as Cautioner for his Father Ex eo capite that it was null ipso jure in respect he was Minor for the time and his Father was loco Curatoris to him and had not Authorized him at least could not be Author to him in rem suam It was alledged that he had not intented Reduction within the quadriennium utile And as to the Declarator of Nullity the reason was not Relevant In regard Bonds granted by Minors having Curators without their consent are Null they being interdicted eo ipso that they do choise Curators that they do nothing without them But Bonds granted or other Deeds done by Minors wanting Curators are not Null in Law but the Minors lesed by the same may crave to be Reponed Debito tempore by way of Reduction And that the Father though he be Tutor in Law for the Children being Pupils he is not Curator being puberes and of that Age that they may choise their their own Curators The Lords notwithstanding Found the Reason relevant and declared the Bond Null as to the Pursuer Quibusdam refragantibus inter quos Ego upon these Grounds that there is a great difference betwixt Tutors and Curators Pupills and Puberes the Father haveing by the Law power to name Tutors and consequently being Tutor of Law himself and having that Authority which may be derived and given by him to others whereas he has no power to name Curators to his Children when they are of that Age that they may choise themselves And though he should name Curators in a Testament his Nomination could not bind his Children And 2. If Children being Puberes should choise any other persons to be their Curators they would exclude and be preferred in that Office to the Father Whereas habenti Curatorem Curator non datur 3. If a Child should have an Estate aliunde and the Father his Son being pubes should cessare and be negligent in the Administration of his Estate there could be no Action against him for his omission which might be competent against him and his Heirs if he were Curator Gibson Clerk Sinclair for Fairholme the Defender Wedderburn and Lockheart for the Pursuer D. 56. Vrquhart contra Frazer Eod. die A Wadset being granted by Sir Thomas Vrquhart Elder and Younger of the Lands of Brae to Sir James Frazer for 24000 Merks and the Granters of the Wadset being obliged to warrand the Rental besides Custumes to be Twenty Chalders of Ross bear and to furnish Tennents and to cause them pay the said Duty and for each Boll undelivered Ten Merks Sir Alexander Vrquhart of Cromarty Donatar to the Escheat of the said Sir Thomas Elder and Younger pursues the Heir and Executor of the Wadsetter for the superplus of the Rent of the said Lands exceeding the Rent of the foresaid Sum for diverse Years In respect the Contract was usurary It was alledged by the Act of Parliament 247. Anno 1597. The Creditor cannot pursue for the superplus of the Annualrent but by way of Reduction of the usurary Bond or Contract with Concourse of his Majesties Advocate It was Replyed That Rei persecutoriâ he had interest to pursue for what was indebite payed The Lords Found That the Process could not be sustained without concourse of His Majesties Advocate The Act of Parliament being express that the Creditor cannot repeat the excrescence above the Annualrent unless he concurr with the Advocate to reduce which appeareth to be provided of purpose to oblige the Creditor to inform and concurr with the Advocate for reduceing so unlawful pactions D. 57. Vrquhart contra Cheyne Decemb. 8. 1666. SIR Thomas Vrquhart of Cromarty having disponed to Mr. William Lumisden a Tenement of Land and Salmond-fishing for Surety of 4000. Merks borrowed from Lumisden the abovementioned Sir Alexander Vrquhart having Right by Comprysing to the saids Lands and Fishing and reversion of the said Wadset pursued a Compt and Reckoning against Walter Cheyne having Right to the said Wadset and to hear and see it Found that the Sum due upon the Wadset was satisfied and payed by the said Walter and his Authors Intromissions It was alledged that the Wadset
being a proper Wadset without a Back-tack the Defender was not Lyable to Compt and tho he were he was not Lyable to Compt but since the date of the Right and for his own Intromission It was Replyed that it was a Right granted for security and that by the Contract of Wadset and the Eik to the Reversion thereafter the Right was redeemable upon payment of the principal and Annualrents that should be unsatisfied whereas in proper Wadsets there is an Antichresis and the Rents of the Land belongs to the Wadsetter in lieu of the Annualrents whereto the Debitor is not Lyable The Lords Found That though the Right was not clear and express that the Wadsetter should have Right for surety and until he be satisfied by Intromission or otherwayes yet the Reversion being in the Terms foresaid it was Actum and intended that the said Wadset should not be a proper Wadset but only for surety as said is D. 58. E. Cassils contra Whitefoord Eod. die THe Lands of Damertoun being a part of the Barony of Cassils and formerly holden Ward by the Lairds of Blairquhan Kennedies of the Earl of Cassils and now being in Ward through the Minority of the present Heritor who had Succeeded in the Right of the saids Lands being acquired from the Laird of Blairquhan The Tennents of the saids Lands Pursued a multiple poynding against the E. of Cassils and Whitefoord now of Blarquhan and the Heretor of Dalmertoun all pretending Right to the multures of the saids Lands The E. of Cassils alledged that during the Ward they should bring their Corns to his Miln of the Barrony of Cassils there being no Milns upon the Lands of Dalmertoun The Laird of Blarquhan alledged that he was infeft in the Lands of Blarquhan and in the Miln of Dalhovan upon a Right granted by Kennedy of Blarquhan cum astrictis multuris usitatis at such a time as Blarquhan had Right to Blarquhan and Dalhovan and to the Lands of Damertoun And that before the said Right granted by Kennedy of Blarquhan to John Whitefoord of Ballach Author to this Laird of Blarquhan the Tennants of Damertoun were in use to come to the said Miln and to pay the like multure and service as the Tennants of Blarquhan did and since the Right have been in use to come constantly to the said Miln It was Answered for Cassils that unless there were an express Constitution of Thirlage the said Lands of Dalmertoun being a distinct Tenement from the Lands of Blarquhan which hold of the King cannot be alledged to be astricted to the said Miln of Blarquhan And if it had been intended that the Lands of Dalmertoun should have been astricted It would have been exprest And when the same did belong to Kennedy of Blarquhan it cannot be said that it was astricted to his own Miln with the foresaid Servitude quia res sua nemini servit and he having Disponed his Miln it cannot be presumed that he would have Burdened his own Lands with a Servitude And though it were clear Kennedy had astricted the saids Lands of Dalmertoun yet he could not Constitute a Servitude without the Superiors consent in his prejudice when the Lands should Ward in his hands It was replyed by Whiteford of Blairquhan that the Superior had consented to the Thirlage in so far as John Gilmor and one Bonar having Comprysed the saids Lands of Dalmertoun from Kennedy of Blarquhan and having Assigned their said Comprysing to John VVhitefoord the said VVhitefoord by Contract did Assign the same to Kilkeren with a Reservation of the multures thereof to the Miln of Dalhovan And the said E. had granted a Charter to Kilkeren upon the foresaid Right The Lords thought That these Words Cum multuris usitatis do relate only to the quantity of the multures as to such Lands as can be shown to be astricted But before Answer to the Debate upon the said Charter and Reservation They ordained the Charter and Contract containing the Reservation to be produced That they might consider Whether it be in the Charter and how it is conceived and what it should operate if it were only in the Contract The Lords enclyned to think that a clear Reservation though there were not a preceeding Thirlage should import a Constitution as to these who accept or consent to such a Reservation D. 59. Leslie contra Leslie eod die PAtrick Leslie of Balquhoyn pursued a general Declarator of the Single and Liferent Escheat of John Leslie of Balquhoyn against James Leslie and his Spouse as nearest of Kin to the said John It was Alledged that the Horning was prescribed the Declarator being raised fourty years after the Horning It was Replyed That though Prescription should run against the King which was denyed yet in this case it could not The King being Minor the time of the Prescription diverse years and the Government being interrupted So that there was not Tempus utile during the Usurpation And the King is not in use to dispose of Escheats until application be made to his Majesty And by the Act of Parliament it is provided that the negligence of his Officers should not prejudge him The Lords Found That the Horning did not prescribe in respect of the Kings Minority and Interruption foresaid It may be asked If that reply of his Majestie 's Minority and Interruption were not competent And if the Escheat were gifted by a Lord of Regality or a Superior Quid Juris And it seemeth that a Horning being poena and once execute it doth not prescribe Seing the Rebel if he should survive fourty years his Liferent would fall to the Superior and there is no reason that he should Lucrari and be in better case ex culpa and by the continuance of his Rebellion for so long a time D. 60. Hume contra Creditors of Kello 12. Decemb. 1666. IN a Process betwixt Hary Hume and the Donator of the Forefaulture of John Hume of Kello and certain others his Creditors It was Found That a Comprising being deduced before January 1652 and being the first effectual Comprysing ought to be preferred to the posterior Comprysings so that they should not come in together pari passu In respect tho they were within year and day of the compleating and the making effectual the first Comprysing by Infeftment or Diligence yet they were not within year and day of the deduceing the said Comprysing and the said Comprysing being before the year 1652. doth not fall under the compass of the Act of Parliament concerning Debitor and Creditor which bringeth in pari passu Comprysings led since January 1652 and being Correctoria Juris Communis ought not to be extended D. 61. Thomson contra Stevenson eod die IN a Reduction of a Right and Disposition of certain Houses being pursued ex capite minoris aetatis It was alledged that the Disposition did bear 500 merks to be payed and the Defender was content to quite the right being payed of the Sum. It was
Found That the Alledgance was not relevant unless he should offer to prove it really payed and profitably employed for the use of the Minor In this Process the Lords would not sustain the Reason per se unless Lesion were joyned and libelled viz. That the Lands were disponed sine Decreto Judicis D. 62. Shaw contra 13. Decemb. 1666. SHaw being confirmed Executor to his Brother a Factor at London and diverse Decreets being recovered against him at the instance of the Defuncts Creditors He desired a Suspension upon that Reason That he had done Diligence to recover the Defuncts Debts and Goods and that he could not satisfie the Decreets obtained against him until he should recover the Defuncts Estate and that he was content it should be divided amongst the Defuncts Creditors according to their Diligences and therefore craved a Suspension without Caution being content to make Faith that he could not get a Cautioner The Lords past a Suspension as to personal Execution only D. 63. Hamilton contra Brown 15. Decemb. 1666. HAmilton of Grange being pursued as representing his Father upon the Title of Behaving and Gerens pro Haerede for payment of a Debt of his Fathers It was alledged that this Condescendence viz. That he had behaved as Heir in sua far as he had granted Dispositions of Land belonging to his Father And 2ly That he had consented as appearand Heir to some Right of Lands apprysed from his Father Is not relevant unless it were said and alledged that he had done these Deeds before the expyring of the Comprysing seing he could have no Right after the expyring of the same and neither could be Heir nor Gerens pro Haerede as to such Lands And as to his consent it was not sufficient unless he had disponed The Lords inclined to be of this Judgement That his consent being as appearand Heir should import Behaviour and that though the Comprysings were expyred he might have an interest to question the same as not formal or Null or satisfied by Intromission or by some other Ground and that by his consent he was denuded of that Interest and therefore such Dispositions should import Behaving Yet in respect the Writes which were to be used to prove the Passive Title were not produced and much may depend upon the wording and conception of the same The Lords thought fit to ordain before Answer the Writes to be produced and assigned a Term to that effect But declared that their Act should be Litiscontestation quoad hoc That the Pursuer after the Term is run upon the said Act should not get others as if there were not Litiscontestation Lockhart for Grange and Birnie for the Pursuer D. 64. Hartshaw contra Hartwoodburn eod die SCot of Hartshaw pursued a Declarator of Property within the Bounds libelled and that he had been in Possession by pasturing and doing other Deeds of Property and debaring the Defender Hartwoodburn and his Predecessor In this Process there was an Act of Litiscontestation whereof a Reduction was intented upon that Ground that the Defender was absent and was Minor and indefensus wanting Tutors and Curators for the time his Tutor being dead and that he had a defence Minor non tenetur placitare The Lords Found If the Summonds had concluded the possessorie of Molestation And if that had been lybelled that the Pursuer the time of the intenting the Pursuit was in Possession would have repelled the Defence that non Tenetur against the molestation But because a Declarator of Right was only lybelled they reponed the Minor And Found that non tenetur placitare Longformacus for Hartwoodburn and Sir George McKenÈe for Hartshaw D. 65. L. Colvil contra Feuars of Culross eod die THe Lotd Colvil being Baillie of the Regality of Culross and lyable to uplift the Taxation of that Abbacy And having charged certain of the Vassals to pay their Taxation They suspended upon that Reason That a fifth Part more than the Taxation was stented upon them on pretence and in consideration of Charges The Lords Found That they could not be stented to more than the Taxation tho the Sheriff and Baillies of Regality be lyable to uplift the Taxation Yet it seems hard that they should be at the Charges of raising of Letters and Registration of Hornings and such like And albeit the Vassals who are content to pay their Proportion should not be lyable to more yet it may appear that it is reason that when the Sheriffs or Baillies give in what they have uplifted their Charges should be allowed D. 66. Hay contra Littlejohn 16. Deeemb 1666. LIttlejohn having comprised the Liferent Right of a Tenement in Leith the said Tenement became ruinous and by the fall of a part of it did crush a part of the next house adjoining to it belonging to _____ Hay of Knockondie In a Pursuit Knockondie against Littlejohn for Damnage and Interest The Lords sustained Process The Pursuer proving that the House was manifestly ruinous without necessity to lybel or reply that the Pursuer had required the Defender to repair his House It being sufficient that the case of the House was such as did really require and call for Reparation in order to his own Interest and for preventing his Neighbours So that it being his Fault that he did not repair the same he was lyable to refound the Pursuers Damnage And albeit by the Act of Parliament Liferenters may be urged to find Caution to keep their Liferent Lands Sarta tecta and in the condition they found them at their Entry And by the Civil Law Neighbours may be urged to find Caution Damni infecti the said Remedies are not privative in case any Prejudice be done before they be taken D. 67. Allan contra Campbel eod die EDinample Campbel being pursued as representing his Father upon the Title of behaving as Heir It was alledged that he intrometted with the Duties of the Lands condescended upon by a Right to two Comprysings against his Father It was replyed The Comprysings were not expired the time of his Fathers Decease so that in effect he was Heretor The Lords Found That Gestio being magis animi quam facti The Defenders Intromission by vertue of a Title did not infer Behaving D. 68. MenÈies contra Burnet Decem. 18. 1666. A Relict being provided to the Liferent of the conquest dureing the Marriage and pursueing for the same It was alledged that the Money in question which the pursuer pretended to be conquest dureing the Marriage did belong to the Defunct before the Marriage and that the Bond was renewed after it The Question was what way the said Alledgance tending to take from the Pursuer the benefite introduced in her favours by Write and by her Contract of Marriage could be proven Yet the Lords enclined to find it probable by the Debitor and the Witnesses in the Bond But before Answer They Ordained the Defender to use such Probation as he thought fit for proving the Alledgance Reserving
to themselves to determine what it should import D. 69. contra 18. Decem. 1666. IN a Process against an Heir of Provision It was Alledged that the Heir of Line ought to be first discust It was Replyed that the Heir of Line was conveened and Renounced And it being duplyed That the Estate belonging to the Heir of Line and whereto he should have Right if he were served Heir ought to be discussed The Lords Found No Process against the Heir of Provision until the Heir of Line was discussed and that the Renounciation of the Heir of Line was not sufficient but that the Creditor behooved to proceed to Adjudication contra haereditatem Jacentem belonging to the Heir of Line D. 70. Deacon of the Weavers contra the Magistrates of Edinburgh 1. June 1667. THE Deacon of the Weavers being imprisoned by the Magistrates of Edinburgh because he had disobeyed their Order anent the putting in their Hand a Box for the Poor of the Journey-men until some Questions betwixt the Masters of the Trade and the Journey-men of the same should be decided did crave by a Bill to be enlarged upon that reason that the Craft had intented a Reduction of the Contract betwixt their Predecessors and their Journey-Men concerning the keeping and having a Box for the Poor of the Journey-men And that until the Decision of the Process the Box ought to be keeped by their Deacon The Lords Ordained the Complainer to be enlarged by Consigning the Box in the Clerks Hands Upon occasion of the said Process it was agitated amongst the Lords Whether there could be a Contract and Transaction betwixt the Craft and Journey-men who are not an Incorporation and cannot oblige their Successors Seing there can be no Successors but of a Person or Incorporation But the Lords without giving Interloquitor upon that point Ordained the Reduction to be heard summarly Gibson Clerk MckenÈie alter Lockheart D. 71. Young contra Young 4. June 1667. IN the case Young contra Young It was agitated Whether a Husband be Lyable for his Wifes Debt before the Marriage being proven no otherways but by her Oath dureing the Marriage If the Husband declare he does not distrust her and believeth she hath declared Truth The Lords did not decide the point but some were of the opinion That if the Husband Declare upon Oath that he believeth she did Declare Truth he will be Lyable in respect that by the Law the Husband is Lyable for the Wifes Debt being Legally proven And the Question is only whether the Wife may declare in prejudice of her Husband which she cannot do because otherwayes it may be in the power of an untoward Wife to undoe her Husband which inconveniency ceaseth when the Husband declareth he hath no reason to distrust the Wife and that he believeth she hath told Truth The great Question will be Whether the Husband may be urged to give such an Oath of Credulity Seing whatever a Husband thought yet having an Imperious Woman he should be forced to comply with her and to declare that he believeth her otherwayes he would have a miserable Life Scot Clerk D. 72. Thomson contra Stevenson Eod. die IN the case Thomson contra Stevenson The Lords Found that the Extract out of the Kirk-Session Books is not a sufficient Probation of Age to infer Reduction Ex capite minoritatis But the case being difficilis probationis after a considerable time They Found that aliqualis probatio ought to be received with the Adminicle foresaid Norvel alt Wallace Hamilton Clerk D. 73. Zinzian contra Kinloch Eod. die ZInzian having poinded pursued a SpuilÈie against Kinloch having meddled with some of the poinded Goods The time of the adviseing the Cause the Defender offered to improve the Poinding in data The Lords Repelled the Defence in hoc statu Reserving Action In respect the Poinding was produced ab initio notwithstanding it was alledged that the Defence was noviter veniens ad notitiam which the Lords did not respect because the Poinding being produced ab initio as said is The Defender should have tryed and might have had the same Information which he has now of the same In the same Process though the prices of the Goods SpuilÈied were not proven because it is to be presumed that the prices contained in Poindings are not too high And the Lords having considered the poinding Found the prices low Haystoun Clerk D. 74. Mitchel contra Mitchel 12. June 1667. THE Lords upon a Bill ordained Witnesses to be received before Litiscontestation and their Depositions to ly in Retentis Because they were in Town for the present and were to go to Zetland and senes valetudinarii and peregre profecturi And upon such like considerations others may be received Witnesses in hoc statu Scot Clerk D. 75. Lumisden contra Summers Eod. die IN a Declarator of Escheat it was alledged that the Goods Lybelled were Disponed to the Defender It was Answered that the Disposition was stante Rebellione It was Replyed That in Fortification of the Disposition it was offered to be proven that the Disposition was made for the price of Corn and Straw and other Goods disponed to the Rebel and whereby His Majesty and his Donator had benefite in respect the same was employed for the Entertainment of the Beasts and Sowing the Ground whereof the Encrease fell under Escheat The Lords Repelled the Defence And Found that the Rebel being Lyable only personally for the price of the Goods alledged Disponed and the property of the Goods in Question being his the same belonged to the King And the King and his Donator was not obliged to debate upon what account and occasion the Rebel was Debitor to the Defender Or what use he made of the Goods Disponed to him by the Excipient And is in no worse case than a Creditor poinding or Arresting or any other person acquiring Right to the property of Goods who would be preferred notwithstanding such pretences there being no such Hypotheck that can be pretended by the Law of Scotland Diverse instances were adduced by me to this purpose not only in behalf of the King but of other Superiors and Heretors as V. G. If a Superior should pursue Declarator of a Liferent and it should be alledged that after Rebellion the Rebel had Disponed a part of his Lands And that it should be offered to be proven that the Money for which the Disposition was given was lent for acquiring the Right of the Lands So that thereby the Superior had benefite thereby Or if the Master were pursueing by vertue of the legal and tacite Hypotheck competent to him and it should be alledged that the Tennant was Debitor to another for the price of Corns furnished for Sowing the Ground In which cases the Superior and Master could not be frustrate upon any such pretences Birnie alter Thoirs Frazer Hamilton Clerk D. 76. Dalrymple contra Eod. die A Reduction of a Testament being pursued Ex eo capite that the
that the same should be reserved by way of Action The Lords for avoiding the multiplying of Processes obliged them to propone the exception of Improbation peremptorie But the same being prior natura and competent to be proponed before any other in meritis causae And yet being now proponed peremptorie in form of Process being the last of Exceptions The Lords admitted the Defenders to propone their other Exceptions and reserved that to the last place D. 127. Eodem die THE Lords upon debate amongst themselves Thought that the Abbay being His Majesties House should not Exempt or protect any person against His Majesties Laws and the Execution of Letters of Caption and therefore Recommended to the Keeper of the Abbay to put him out and not to shelter him there D. 128. Forbes contra Innes 8. January 1668. IN the Case Forbes contra Innes and Dalgarno The Lords Found That a Wife having no Right for the time to Lands Disponed by her Husband and having at the desire of the Buyer consented and sold her Right if she thereafter acquire from another person a Right to the saids Lands is not by her consent concluded but may pursue and evict the Lands upon her Right Her consent operating only that upon any Right from her Husband or then in her person she cannot question the Right whereto she hath consented And the Brocara that Jus superveniens accrescit being to be understood of Jus superveniens Authori whereas a Consenter is not Author Lockheart alteri Wedderburn Thoirs D. 129. Laird of Glencorse contra his Brethren and Sisters 9. January 1668. ALexander Bothwel of Glencorse having Disponed his Lands to his Eldest Son by Contract of Marriage betwixt his Son and his Wife with absolute warrandice And by the Contract the Tocher being payable to the Father he did notwithstanding deliver Bonds of Provision to his other Children which were of a date before the Contract but not delivered diverse years after his Sons Marriage The Eldest Son pursued a Reduction of the said Bonds in so far as they may affect his Estate or be the ground of a pursuit against him as Successor Titulo lucrativo post contractum debitum The Reasons of Reduction were that the Bonds were not delivered the time of the Right granted to the Son and that he could not thereafter do any Deed in his prejudice and consequently could not deliver the said Bonds the delivery and not the granting being that which doth animate and make the same effectual It was Answered That the Father being Tutor of Law to his Children he having â—he Bonds for their use is equivalent as if the Children had them or that they had been delivered to them And whatever may be as to a Singular Successor they ought to be effectual against his Eldest Son who is universal successor It was Answered That Contracts of Marriage being not only in favours of the Son but in the behalf of the Wife and Children and with the Friends are most solemn and favourable Transactions Et bona fides is in them exuberant so that upon no pretence no Deed ought to be done by any of the Contracters in fraudem And that the Father if he had intended to have burdened the said Lands should have burdened the Fee expresly with the same that Provisions granted by Parents to their Children before they be delivered may be revocked and that the Father by granting the Disposition in favours of his Son had revocked the Bonds in question in so far as they may trouble him The Lords in respect it was proven That the Bonds were not delivered till after the Contract Found they could not be effectual against the Son and Reduced Sinclair and Wallace alteri Wedderburn Lockheart D. 130. Earl of Kinghorn contra The Laird of Vdney 14 January 1668. THE Earl of Kinghorn did Wadset to the deceast Laird of Vdney the Barony of Balhaves and the Sum due upon the Wadset being payed to Vdney he did by his Letter to the said Earl promise a Renounciation of the said Wadset to be granted by him The Earl of Kinghorn as Heir to his Father having pursued the now Laird of Vdney as representing his Father upon the passive Titles and especially upon that as Successor Titulo Lucrativo in so far as he was Infeft in the Lands condescended upon acquired by his Father to himself in Liferent and to the Defender in Fee with power to the Father or his Assigney to redeem the same upon payment of three Pounds And to Set Wadset and dispone without his consent It was Alledged the Sons Right was prior to the said Letter and that the Father did not make use of the said power It was Replyed That the Wadset was prior to the Defenders Right yet this Right being qualified as said is the Father might have contracted Debts and granted obligements after the said Right and the Defender would be lyable to the same seeing the Lands and the Fathers interest in the same being upon the matter a Fee and power to redeem and dispone might have been comprysed for his Debt contracted after the said Right There being two questions in the case viz. Whether the Defender be lyable as Successor Titulo lucrativo If it should be found that the Wadset was Anterior 2ly If the obligement shall be found to be after the Defenders Right whether he would be notwithstanding Successor Titulo lucrativo in respect of the quality and condition foresaid of the said Right The Lords repelled the alledgance and Found the Defender would be lyable as Sucessor the pursuer proving that the Wadset was Anterior As to the second question the Lords thought it not necessar to decide being of very great consequence and deserving hearing In praesentia seing it was notour that the Wadset was before the Defenders Right Yet we inclined for the most part to think that when such Rights are granted or Purchased by Parents to their appearand Heirs they should be lyable to all the Debts due and contracted thereafter at least secundum vires in quantum Lucrantur And beside the abovementioned reasons these may be urged 1. the Father having by such a reservation not only a reversion but in effect a Right of propertie In so far as he has power to Dispone and wadset as if he were Fiar if he should discharge the said Reservation his Discharge would inferr against his Son the passive title of Successor titulo lucrativo having gotten thereby an absolute and irredeemable Right which he had not before And therfore he not useing the power competent to him by the said Reservation being equivalent as if he had discharged the same ought to operate the same effect 2. Such a Right is in effect Praeceptio Haereditatis cum of effectu only the time of the Fathers decease seeing before that time it is in his power to Evacuat the same and therefore the time of the Fathers decease is to be considercd so as the
effectum Others thought that Prescriptions being odious talis qualis and any Act of Interruption was sufficient And as Prescription may be interrupted by any Deed of Molestation of Tennants being a natural Interruption so it may be interrupted civilly by a pursuit against the Tennents The Lords did not decide the Question but thought fit to advise further D. 147. Town of Dundee contra E. of Finlater eod die THE Town of Dundee being pursued in subsidium for payment of a Debt due by a Rebel whom they had suffered to escape out of Prison after Decreet satisfied the Creditor and took Assignation to the Debt and Bond whereupon they pursued the Earl of Finlater one of the Cautioners It was Alledged That the Town ex delicto had come in the place of the principal Debitor and payment made by them did liberate the Cautioners as if payment had been made by the Principal It was Replyed That the Town was only Lyable to the Creditor who might pass from his Decreet against the Town and as he might have Assigned the Debt to any other person The Town as quilibet might have a Right from him The Lords Found That the Town is not in the case of Cautioners or Expromissores ex pacto but of Correi being lyable in Law ex delicto for and in place of the Principal Vide 9. July 1667. D. 148. _____ contra _____ 25. January 1668. THE Lords upon debate amongst themselves in the case concerning Viccarage Thought that Yards for which Viccarage was in use to be payed being turned into Infield Land and Laboured The Vicar has no Right to the Teinds of Corns growing thereupon but the same belongs to the Parson But they did not decide this point being only debated incidenter D. 149. Keith contra Grahame eod die IN the case of Keith of Craigie contra Grahame of Creichie The Lords upon probation in mutual Declarators anent a Moss Found That the Barony of Craigie having pertained to Straiton of Lauristoun and thereafter a part of the same being Disponed to Keith and his predecessors and another part to the Authors and Predecessors of Grahame of Creichie extending the saids Two Parts to the whole Barony That both the saids Parties had Interest and Right to the Moss in Question as to Community and Pasture and casting Peats and Turff But as to the property of the Moss they Thought that it should belong to that parcel which was last disponed by the Common Author seing he disponed the other part only cum moris maresus in the Tenendas and Executive Clause no mention of the Moss being in the dispositive part So that the property of the Moss remained with himself annexed to the other parcel D. 150. Lady Traquair contra E. of Winton 1 Feb. 1668. THE Earl of Winton having Right by Assignation to a Bond granted by the Lord Sempil did grant a Translation in favours of the Lady Traquair and the Lady Jean another of his Daughters bearing warrandice from his own Deed and thereafter uplifted the Debt The said Ladies pursued the Earl of Winton as representing his Grandfather for payment of the Sum because the Earl his Grandfather had uplifted it The Defender alledged that the Translation being a Donation of the Fathers in favours of his Children whereof he was Master was revocable and that he had revocked the same in so far as he had uplifted the said Sum It was Answered That the said Translation was out of his hands having delivered the same to the Pursuers Mother for their use and that he was obliged to warrand the same The Lords thought that the Translation being in the Lady Winton's hands being in Law Eadem persona with the Earl it was equivalent as if it had been in his own hands and that he might destroy or revock the same But the Parties being of quality and of near Relation they did not decide this case but recommended to some of their number to endeavour an accommodation D. 151. _____ contra Scot and Muirhead her Husband eod die MR. Hary Scot's Daughter and her Husband Mr. John Muirhead for his Interest being pursued as representing the said Mr. Hary for a Debt due by him The pursuer insisted on the Title of behaving as Heir by Intromission with his Moveable Heirship It was Alledged That he could not have an Heirship being neither Prelate Baron nor Burgess It was Answered That he had acquired the Land condescended upon to himself in Liferent and to his Daughter in Fee which was equivalent as if she had succeeded to him in the said Lands The Lords Assoilied from that Title In respect he had no Right in his Person in which she could have succeeded Some were of the opinion That if the Right had born the ordinary Clauses and a Power to dispone and Wadset notwitstanding the Fee in the person of the Daughter that in Law he ought to be considered and looked upon as a Baron being in effect and upon the matter a Fiar Hay Clerk D. 152. Paplay contra The Magistrates of Edinburgh eod die JOhn Paplay pursued The Magistrates of Edinburgh for payment of a Sum of Money Because his Debitor Hendry Henderson had escaped out of their prison It was Alledged After six years silence such a pursuit could not be sustained against the Town and that these who were Magistrates for the time ought to be pursued and discussed in the first place The Lords sustained the Process and Found that the Incorporation being persona quae non moritur The present Magistrates may be pursued for payment of the Debt out of the Patrimony of the Town without citeing these Magistrates for the time when the Debitor escaped Reserving Action against the Delinquent who suffered the Rebel to escape D. 153. Parkman contra Allan 4. Feb. 1668. THE Lords Found that in the case mentioned 15. January 1668. until the Ship should return to Sweden it should be esteemed a Voyage quoad the Effect and point in question D. 154. Ker contra Ker. 5. February 1668. RObert Ker of Graden having Infeft his second Son Robert Ker in an Annualrent out of his Lands of Graden and others upon a Contract betwixt them whereby Graden for the Sum of 6000 Merks addebted by him to his Son viz. 3000 Merks of borrowed Money and 3000 Merks for his Portion accumulatory and extending together as said is was obliged to Infeft the said Robert in 360 Merks as the Annualrent of the said Sum of 6000 Merks beginning the first Terms payment of the half of the said Annualrent being for borrowed Money at the first Term after the Contract And of the other half being for his Patrimony after his Fathers decease The said Robert the Son pursued a poinding of the Ground for bygones and in Time coming the Terms of payment being past Henry Ker the Pursuers Eldest Brother compeared and alledged his Ground could not be poinded and that he was Infeft therein by a publick Infeftment at least that his
Bond to Lindsay and the said Lindsay having Assigned the same to his Daughter The said William Gray Suspended upon a double poinding against the said Assigney and a Creditor who had arrested It was Alledged for the Creditor that the Assignation was made by a Father to a Daughter to defraud Creditors It was Answered That the Father by Contract of Marriage was obliged in case there should be no Heirs Male betwixt him and the Assigneys Mother to pay to the Heir or Bairn Female at her age of 14. years 4000. Merks and until then to entertain her And that the Assigney being the sole Bairn of the Marriage her Father had given the Assignation foresaid for implement of the said obligement The Lords hav ng considered that the provision by the Contract of Marriage in favours of the Daughters is only in case there should be no Heirs Male of the Marriage and that the Father should have other Heirs Male of his Body so that the Daughter should not succeed to the Estate and that both the Father and Mother are yet living and of that age that it was not to be expected that the Father would have other Heirs Male of his Body by an other Marriage and his Daughter was his Appearand Heir whatsomever Therefore they Found that the case of the provision in favours of the Heirs Female did not exist and preferred the Creditor Lock-heart and Bannerman for Lindsay Bernie c. for Forbes Gibson Cl. D. 170. Fergusson contra _____ 21. June 1672. THE Lords Found That a Partie being within the Countrie the time of the citation upon the first Summonds and some time thereafter and goeing out of the Countrie before the second Summonds could not be cited at the Pear and Shoar of Leith upon the second Summonds without a warrand in the said Summonds to that effect D. 171. The Laird of Hermiestoun contra Cockburn Eod. die THE Lords Found That in the case and in all time coming where Witnesses are adduced before Answer they will only allow one Term so that upon any Diligence they will admit no Witnesses but those who are cited by the first Diligence Mr. Thomas Hay Clerk D. 172. Ramsay contra Carstairs eod die A Father in his Contract of Marriage being obliged to provide the Heir Female of the Marriage and to pay to her 20000 lib. at her age of 15 years and until then to entertain her there being only one Child and Daughter of the Marriage she and her Husband pursued the Father and his Curators he being furious to pay the said Sum. It was Answered That the said Provision being only payable to the Heir Female the Pursuer neither had nor could pursue upon that Quality and Interest dureing the Father's Life specially seing both he and his Wife the Pursuers Mother were living and of that age that they may have Heirs Male of the Marriage or other Daughters And if they should have Male Children the Case and Condition of the Provision would deficere and not exist and if they should have moe Daughters the Pursuer could not have Right to the whole Sum acclaimed It was Replyed That the Father was in effect civiliter mortuus and the Pursuers would find Caution to refound in either of the said Cases The Lords Found the Defence relevant and that such Provisions being settled upon Heirs Female by reason and in case of exclusion of the Heirs Female of the Marriage when Lands are entailed to Heirs Male and there are no Heirs Male of the Marriage The Term of Payment could not be understood to be during the Marriage Strathurd Reporter Gibson Clerk D. 173. William Sandilands contra The Earle of Hadington Eod. die THomas the first Earl of Hadington having Disponed certain Lands with absolute warrandice in anno 1610 The now Earl of Hadington was pursued as representing his Great Grand-father to warrand the said Lands from Astriction to the Miln whereunto they were astricted before the Earl of Hadington Disponed the same It was Alledged That the Warrandice doth not extend to the case of Servitudes such as Common Pasturage Thirlage and such like which are not latent and may and are presumed to be known by Purchassers who ought and do ordinarly enquire and inform themselves concerning the condition and burdens of the Lands they intend to purchase specially in the case in question the multure being not exorbitant It was Replyed That in Law where praedia either rustica or urbana ut optima maxima are Disponed they are Disponed as Libera And that the Lands in question are so Disponed it is evident in respect the Warrandice is absolute and they are Disponed cum molendinis multuris It was Duplyed That the Romans were in use to Dispone either simply or cum ista adjectione praedia ut optima maxima the import whereof was servitutem non deberi But where Lands are Disponed simply it is construed and presumed in Law that they are Disponed talia and such as they are And with such accessories either as to burden or advantage as tacite veniunt albeit these be not exprest as Servitudes either Active or Passive and as to the Warrandice it is of the ordinary Stile without mention of Servitudes and it appears from the stile and conception of the ordinary clause of Warrandice and the speciality thereinmentioned viz. Wards Non-entries Inhibitions Apprysings c. That such Incumberances are only intended whereby the Right or Possession of Lands or the Mails and Duties or any part of them are evicted Whereas in the case of Astriction the Heretor doth enjoy his Lands and Duties of the same entire and seing his Corns must be grinded it is not a material prejudice that they should be grinded rather at one Miln than an other and it appears by the Disposition that it was not actum and treated that the said Lands should be Disponed ut optima maxima the Warrandice being in the ordinary terms without mention of Servitudes And the Clause cum molendinis is only in the Charter and Tenendas and is ex stilo and imports only freedom of Thirlage as to the Disponer The Lords upon the foresaid Debate And that the said Miln was a Miln of the Barony of Torphichen whereof the Lands astricted are a part and that the same were astricted before the Earl of Hadington acquired the same they Found the Defence Relevant and AssoilÈied D. 174. Creditors of Tarsappie contra Kilfanes 23. July 1673. THE Lords upon Debate among themselves were of the opinion that a confident person having got a Disposition from a Debitor may at the Debitors desire satisfy such Creditors as he thought fit there being no Diligence done by other Creditors And as the Debitor might have done so himself so the Trustee may do And that it is provided so by the Act of Parliament 1621. They Found that the Trustee if he got any Ease by composition should apply the benefite thereof for satisfaction of the other Creditors Item That
be Examined for clearing the Trust They Found That by the Probation the Trust did not appear and that the said Declaration in Lecto could not prejudge his Heir unless there had been some further evidence that the Declaration was emitted by the Doctor of his own accord and upon conviction and for Exonering his Conscience which did not appear by the Probation Lockheart and Falconer alteri Long formacus and Cuninghame Gibson Clerk Concluded Cause D. 187. Lady Spencerfield contra Hamilton 10. June 1674. IN the case of the Lady Spencerfield contra Robert Hamilton of Kilbrakmount The Lords Found that the Alledgeance viz. That the Defender could not be Lyable as Intrometter because there was a Gift given of the Defuncts Escheat being Rebel is not Relevant unless the Gift were either declared or were to the Defender himself or that he had Right from the Donator For in the first case he is in condition parallel with an Intrometter in the case of an Executor confirmed and cannot be said to be intrometter with the Goods of a Defunct and bona vacantia the Right of the same being in a living person per aditionem and by confirmation and a third person Intrometting where there is no Declarator who has not the Gift himself nor a Right from the Donator is not in a better case than an Executor decerned And in the case of a Donator Intrometting or the intromission of any other having Right from him there is the pretence and colour of a Right in the person of the Intrometter which is sufficient to purge vitious Intromission They Found in the same case that a person entering to the possession of the Defuncts House by warrand of the Lords Their possession of the Goods in the House doth not infer Intromission unless they make use of such Goods as usu consumuntur or dispose of such Goods as are not of that nature as Beds Tables and such like Robert Hamilton Clerk D. 188. Freeholders of Linlithgow contra The Commissioners to the Parliament 12. June 1674. IN a Suspension at the instance of the Freeholders of Linlithgow-shire against their Commissioners to the Parliament The Lords Found that if the Prorogationes and Recesses of Parliament be for a considerable time so that the Commissioners do or may go home the Commissioners should not have their Fies or Charges dureing the same 2. That if the prorogation be for a short time and the Commissioners having their Residence at a little distance in Edinburgh or Linlithgow shire do or may go home they ought not to have Fees dureing that time 3. If there be Articles sitting dureing that time and they do not go home tho they be not upon the Articles they should have their Fees Because they are concerned to know and inform themselves what is in Agitation in the Articles Newbyth Reporter Monro Clerk D. 189. Bailly Boid contra Store November 7. 1674. THE Lords sustained a Discharge granted by a Master to his Tennent upon payment of his Duty tho it was neither Holograph nor Subscribed before Witnesses but pretended to be subscribed by the Granter Which the Lords did in respect of the Custom and that Masters and Tennents are in use to give and take Discharges without Witnesses And that in the case of Writes Letters and Bills betwixt Merchants the Lords are in use to sustain them tho they want Witnesses and there is the same if not more reason in the case of Tennents by reason of the great and exuberant confidence betwixt them and their Masters Some of the Lords thought it hard to recede from the Law there being no limitation or exception in behalf of Tennents ubi Lex non distinguit nec nos And that there is a great disparity betwixt Merchants and Tennents Compts Letters and Bills of Exchange and other Writs of that nature being secret Transactions betwixt Merchants and their correspondents whereunto Witnesses and other persons neither are in use to be nor is fit they should be privy Whereas Discharges by Masters to Tennents are in use to be and there is no inconveniency that they should be subscribed before Witnesses and there is no difficulty to get Witnesses to them and if they want Witnesses and be not Holograph Masters may be prejudged It being easy to imitate and forge a single subscription and there being no means of improbation of the same D. 190. The Town of Innerness contra Forbes of Colloden and Robertson of Inches and others eod die THis case having been Agitated not without some heat amongst the Lords themselves I thought fit to give an account thereof at greater length than I have used in other Cases and Decisions The Town of Inverness having Charged the said _____ Robertson of Inches and Colloden and other Feuars who hold the Forrest of Drakies and other Lands and Milns and Fishings of the said Burgh for payment of their proportions of a Stent imposed upon them for the use of the Town And they having Suspended upon that reason that the said Stent was unequal as to their proportions and that the Town had not an Arbitrary Power to impose Stents upon their Neighbours and Feuars unless there were an unavoidable at least a pressing necessity and occasion relateing to the good and interest of the Burgh and in that case the Neighbours and Feuars were to be Lyable only in subsidium In so far as the Patrimony of the Town and Common Good should be short and not extend to defray the same The Lords Sir John Gilmour being President for the time did by their Decreet of Suspension Find the Letters orderly proceeded But withall did regulate the way of stenting to be according to the method and Rules set down by the Lords as to the future which are contained in the said Decreet and acquiesced to by the Suspenders the Decreet bearing to be of consent and containing only a Protestation that the Suspenders should not be Lyable to any Stent for maintaining and prosecuting Pleas against themselves Thereafter the Feuars being charged upon another Stent did Suspend upon that reason only that the Regulation and Method appointed by the Lords had not been observed and did intent a Declarator that they should not be Lyable to Stents but such as should be imposed in the way and according to the method foresaid Tho there was no other reason in the said Suspension nor conclusion in the said Declarator but as is immediatly related yet another reason was thereafter insisted upon both in the Suspension and Declarator and they did plead that they were exempted and ought not to be Lyable to any Stent upon any account or method whatsomever by reason that their Lands and in special the Forrest of Drakies were Feued to them for a Reddendo and Feu-duty contained in their Infeftments pro omni alio onere The Case not being fully debated at the Bar Some of the Lords conceiving that the Lands of Drakies were not a part of the Original and Ancient
Patrimony of the Town but that the same had been acquired by the Town and thereafter had been Feued out by them in the Terms foresaid for payment of a Feu-duty pro omni alio onere they were of the opinion that they could not be Lyable to a Servitude unless the same had been constitute either by their Infeftments or otherwayes But specially in this case they being free by their Infeftment and express Clause therein of all burden or Servitude but their Feu-duty And that they could be in no other case than if the Town of Edinburgh should Feu any of the Lands lately acquired by them for payment of a Duty pro omni alio onere And yet the plurality of the Lords were of the opinion that if the Town could prove and make appear that they have been in use by the space of 40 years or above to Stent their Feuars for defraying their Affairs and Burdens and Works of the Town that they ought to be Lyable notwithstanding of the said Clause pro omni alio onere And accordingly before Answer a Term is Assigned for proving the Towns Possession In the interim The most Eminent of the Advocates and in special such as were for the Town being discharged pleading upon occasion of the Appeals this case came in Agitation the last Session and some of the Lords even these that were of the opinion formerly that the Feuars should not be Lyable to be stented upon the ground and mistake foresaid that the said Lands of Drakes was not a part of the Ancient Patrimony of the Town they were convinced upon the production of the Towns Evidents that the said Lands were a part of the Ancient Patrimony of the Town being Incorporate and contained in their Infeftments with the Burgh it self bearing one individual holding and Reddendo And therefore conceiving that est Judicis supplere quae desunt Advocatis in Jure and which arises upon production of the Papers they did argue that the Feuars ought to be Lyable for these Reasons 1 That there is a difference betwixt the Original Patrimony of the Town which is profectitious and flowes from the Bounty of Princes and is given to Burghs Royal for sustaining and defraying their necessary burdens and occasions and betwixt that which is adventitious and acquired by Burghs themselves by their own Moyen and Means As to the first The same being given eo intuitu and to the end that it should be a Stock for doing and defraying the Common Affairs and burdens and Charges of the Town it cannot be given away nor Feued but cum sua causa and so that they should be Lyable to Stents and Impositions upon occasions requireing the same Whereas the other is acquired by Towns as quilibet and the Feuars ought to be considered as quilibet and as in the case of other Feuars 2. Upon the consideration foresaid it is statute by diverse Acts of Parliament and in special by the 36. Act. K. Ja. 4. Parl. 3. And the 181. Act. K. Ja. 6. Parl. 13. That the Common Good of Burrows should be observed and keeped to the common profite of the Town And the said Act of K. Ja. 4th bears That Lands Fishings Milns and others belonging to the Burrows should not be set but for 3. Years allenarly and if any be set otherways that they be of none avail And as this is Law so it is just otherwayes those who have Tenements within Burgh and who upon occasions are Lyable to be Stented should be unjustly and heavily prejudged if the Lands and Fishings which being in the Towns hands would be lyable in the first place to such Burdens may be given away so that the whole burden should be rolled over upon them 3. The foresaid pretence That the Feuars were Lyable only to the Feu-duty pro omni alio onere was Answered viz. That omne aliud onus was to be understood of any other ordinar duty payable to the Town as Superiors but does not exempt the Feuars from these munera extraordinaria Patrimonialia for the necessar use and preservation of the Town As in the case of Lands disponed to be holden of the Disponer for payment of a Blensh or other Duty pro omni alio onere The Clause foresaid will not exempt the Vasal from Taxations and the Superiors relief of the same against his Vasal 4. It appears by a Ratification of Queen Mary produced for the Town That the Town of Innerness had made diverse Acts concerning the setting the Lands Milns and Fishings which are ratified by the said Queen And which if they were observed would oblige the Feuars to be lyable to to be Stented The saids Lords Who were of the said opinion thought That upon the Grounds and Production foresaid the Feuars of Drakies ought to be lyable without any farther probation to Stents imposed for the use and interest of the Town the same being imposed necessarly and equally according to the method abovementioned And yet the Town having adduced probation by production of the Records out of their Books and Witnesses they considered and thought that the possession of the Town by imposing their Stents by the space of 40. years was proven In respect it appeared by the Extracts out of their Books That from the year 1624. until 1664. they have been in use to impose Stents in case of Exigency for the private use and concerns of the Town Notwithstanding of what was alledged at the Bar against the said probation and in special that the Books themselves ought to be produced whereas there was nothing produced but Extracts of Acts and that the probation that the Town has been in use to Stent for repairing their Bridge did not quadrate to the case and point in question seing it was to be proven that Stents were imposed for the private use and concerns of the Town and the Bridge and repairing of the same is of publick concern and interest relating not only to the good of the Town but of the whole Shire And the Record anent Stent in relation to the Bridge being out of the way and not considered as a probation It was not proven that the Town had been in Possession 40. Years Nevertheless The plurality of the Lords did Find the Alledgeance foresaid of Possession by the time foresaid not proven upon that ground that the Bridge was not to be considered as the proper concern of the Town And did suspend and declare in favours of Inches and other Feuars Diverse of the saids Lords dissenting upon the Grounds foresaid and that it appears to them that the Feuars upon the account of their Lands were Lyable to be Stented being the ancient and proper Burgal Patrimony of the Town And albeit a continued tract of Possession by the space of 40. years which hardly is to be expected in servitutibus or impositions that are discontinue could not be made out as they conceive it was yet the Feuars having homologate and consented and submitted to
the instance of the second Donator that the Assigney is preferable Sir David Falconer for Veatch alteri Dalrymple Charâ—ris c. Gibson Clerk This Decision appears to be hard seing Declaratoria non tribuit Jus but Declarat Jus quod est And the Horning being declared upon the first Gift there needed not a Declarator upon the second Vide infra 12. February and 10. Novem. 1675. inter eosdem D. 250. Douglass contra Jackson and Grahame 11. February 1675. THE Lords Found that a poinding is not lawful unless it be begun before the setting of the Sun and what is to be done at that time be all done and compleat before the Day light be gone D. 251. Lady Torwoodhead contra The Tennents eod die THE Lady Torwoodhead having gotten Aliment modified to her by the Lords of Council of 600 Merks yearly and for surety of the same having gotten the Gift of her Husbands Liferent Escheat did pursue the Tennents for Mails and Duties It was Alledged for Florence Garner That he had Right to the Lands Lybelled and Mails and Duties of the same by Comprysings and Infeftments thereupon expired It was Answered That the Mails and Duties of the Lands exceed the Annualrents of the Sums contained in the Comprysing and by the Act of Parliament 1661. for ordering the payment of Debts betwixt Creditor and Debitor where the Lands Comprysed exceed the Annualrents of the Sums contained in the Comprysing The Comprysers are restricted to the possession of such of the Lands dureing the Legal as the Lords of Session should think just And that the expireing of the said Florence his Comprysings was interrupted by an Order used by Edward Ruthven Son to the Lord Forrester It was Answered for Gairner That the Lord Forrester had no Right to the Reversion of Torwoodhead's Lands so that no Order used by him as to these Lands could be valid to interrupt the said Comprysing And the said Order neither was nor could be declared The Lords In respect the Lord Forrester being principal and his Brother Torwoodhead Cautioner both their Lands were Comprysed for the same Debt and that the Principal may satisfy the Debt and extinguish the Comprysing as to both his own and the Cautioners Lands They Found that the said Order did interrupt the Comprysing as to both This appears to be hard 1. Because the said Act of Parliament indulges the favour foresaid to the Debitors themselves upon the Conditions thereinmentioned viz. That they should ratify the Comprysers possession and deliver the Evidents and the same cannot be extended to Donators 2. A Comprysing cannot be interrupted but either by Payment and actual satisfaction or by using and declareing an Order of Redemption Until which be done the Comprysing cannot be thought to be unexpired Craigie Reporter D. 252. Kinnier contra _____ 12. February 1675. THE Lords upon a Bill given in by _____ Kinnier who had obtained a Bonorum and a Testificat of diverse persons of Credit that he had become insolvent upon occasion of loss and ill Debtors and was otherwayes vertuous They dispenced with that part of the Decreet anent the wearing of the Habit. D. 253. Presbytrie of Duns eod die THE Presbytrie of Duns having by Bill desired That Letters of Horning may be direct against certain persons who had been cited as Witnesses and did not appear before them The Lords did demurr In respect Letters of Horning ought not to be direct but either by consent of Parties or by Warrand of Acts of Parliament As appears by Acts of Parliament ordaining Horning to be direct upon Sheriffs and Commissars Decreets and Decreets within Burgh and Admirals Decreets D. 254. Cruickshanks contra Watt. eod die THE Lords Found That a Disposition being made after Inhibition but before the Registration of the same may be reduced ex capite Inhibitionis seing the Execution of the Inhibition doth put the Leidges in mala fide And after the same is compleat and thereby the Debitor and the Leidges are inhibite to give and take Rights the Inhibition ipso momento thereafter is valide and perfect but resolvitur sub conditione if it be not Registrate in due time Mr. Thomas Hay Clerk D. 255. Veatch contra The Creditors of James Ker and Peter Pallat. eod die IN the case abovementioned Veatch contra The Creditors of James Ker and Peter Pallat It was farther Alledged for the said William Veatch that he ought to be preferred because by the Act of Parliament 1621. Assignations or other Rights granted by Bankrupts in favours of any of their Creditors who had not done Diligence and in prejudice of a Creditor who had done Diligence by Horning or otherwayes are void And the Creditor who is partially preferred and gratified if he recover payment he is Lyable to Refound And by the Act of Parliament in Anno. 1592. anent the Escheats of Rebels Cap. 145. Assignations made stante Rebellione in prejudice of the Creditor at whose instance the Cedent is at the Horn are Null and that the said Assignation made by Sanderson in favours of Ker and Broun was made by him after he was at the Horn at the instance of David Rodger Veatches Cedent And the said Assignation being Null for the Reason foresaid all that has followed thereupon is void It was Answered That the said Act of Parliament is only to be understood in the Case when any voluntar Payment or Right is made in defraud of the lawful and more timely Diligence of another Creditor having served Inhibition or used a Horning Arrestment Comprising or other Lawful Mean to affect the Dyvors Land or Estate and that Horning is not such a Diligence as does affect being only personal Execution against the Debitor and that the said Debt of Stuarts was many years contracted by the Rebel after the said Horning and that the said Stewarts residing in Ireland and their Bond being conceived after the stile of English Bonds did not fall under Sanderson the Creditors Escheat Whereunto It was Answered That by the said Act of Parliament Bankrupts after they are at the Horn cannot make any voluntar Right or Payment to gratify or prefer other Creditors so that there is no necessity to debate whether Horning doth affect or not And yet the truth is Horning is such a Diligence as doth affect seing thereby all the Escheatable Goods are affected and do belong to the King and to the Creditor at whose instance the Horning is who is preferable to the King and has an interest in the said Goods and that what ever belongs to a Rebel whether the time of the Rebellion or at any time how long soever thereafter during the Rebellion the same accrues to the King and consequently to the Creditor in the Horning and that nomina debitorum and Debts non habent situm but are personal Interests and sequuntur personam Creditoris and if they be moveable do fall under his Escheat which is a Legal Assignation as said is The Lords enclined to prefer
Superiority and the Libel being only founded upon the Pursuers Right as Superior the Defender was in bona fide and could not enter nor be lyable for the full avail until the Question was cleared by production of the said Assignation and therefore could not be lyable until the same was produced The Lords As to the first Reason Found That after the intention of the Declarator of Non-entry at the Instance of the Party having Right the Defenders are lyable in the full avail and that the real conclusion of poinding the Ground for the same may be sustained seing the Ground may be poinded for a Rent liquidate as it was in this Case and when Lands are not retoured the Pursuer even before Declarator may crave Right to the Rents As to the Second The Lords were all clear that the Defender was not lyable for the full avail but after production of the Title whereupon the Pursute is sustained But it being moved that the Defenders having proponed the said Alledgance before the same was repelled and decreet given out for the full avail after intention of the Cause some of the Lords were of the Opinion that there was now no Remedy Others thought That there being a clear iniquity and prejudice to the Party and the Lords being convinced of the same they ought to do justice to the party And the question being brought before them upon Suspension ex incontinenti and not ex intervallo the Sentence non transivit in rem judicatam Whereupon some heat having arisen among the Lords while some did plead the Credit of the House and the Security of the People that the Decreets of the Lords in foro should be an ultimate and unquestionable Decision and others Thought and did represent that the Honour of the House and Interest and Security of the People consists in this that Justice should be done and no evident Iniquity should be without Remedy Especially where a Decreet has not taken effect and become res judicata but is drawn in question immediatly by a Suspension The Lords did demur and decided not that Point Castlehil Reporter Gibson Clerk D. 274. Hamilton of Munkland contra _____ Maxuel eod die UPon the Report of Redford betwixt Hamilton of Munkland and _____ Maxuel The Lords Found That a Debt due by a Person who had disponed his Land upon the account that a Manse was built and that he was resting his Proportion of the Charges is not debitum Fundi Hamilton Clerk D. 275. The Colledge of Aberdeen contra the Town of Aberdeen 24. June 1675. IN the Case abovementioned of the Colledge against the Town of Aberdeen The Lords having heard again a Debate in praesentia Did adhere to what they had Found formerly and did Declare Jus eligendi of a Bibliothecare to pertain to the Colledge Vide 17. June 1675. inter eosdem D. 276. Earl of Lauderdale contra Lady and Lord Yester 25. June 1675. THE Duke of Lauderdale having settled upon the Lady Yester his Daughter his Estate and thereafter by Contract of Marriage betwixt the said Lady and my Lord Yester containing a Procuratory of Resignation whereupon Infeftment followed the said Estate is disponed and resigned by her with consent of her Father and him for his Interest in favours of the said Lady and the Heirs of her Body of that Marriage and these failÈiening of any other Marriage With Provisions contained in the said Procuratory And in special that the said Lands should be redeemable by the Earl upon a Rose-noble and that upon an Order used the said Right in Favors of the Lady and her foresaids should be void and two other Provisions in Case of Redemption viz. 1mo That in Case the Duke of Lauderdale should think fit to redeem that the Duke and his Heirs should be lyable and obliged to pay likeas they bind themselves by the said Provision to pay to the Lady and her foresaids besides the Tocher 7000. lib. sterl at the first Term after the Dukes decease And 2do That whereas by the said Contract the Lady if the Estate had not been redeemed was obliged to pay all her Fathers Debts and Legacies she should be free of the same in case of Redemption Which Provisions are contained in the Infeftments The Duke having used an Order and having intented thereupon a Declarator of Redemption concluding that the Lands should be declared lawfully redeemed and that his Daughter should be decerned to denude her self and to grant a Procuratory for Resigning since she was infeft by publick Infeftment It was Alledged That as to that Conclusion that she should renounce there was no Warrand for the same seing there was not a Reversion in these Terms that she should grant the Lands orderly redeemed and renounce in which Terms Reversions which are pacta de retrovendendo are ordinarly conceived but that the Reversion whereupon the Order is used is only a Provision contained in the said Contract of the Tenor foresaid with a resolutive clause in case of Redemption which imports no Obligement upon the Lady nor pactum de retrovendendo but only Jus Retractus and a Faculty and Power to the Father to Redeem and in case of Redemption the expiring and Nullity of the Right 2. It was Alledged That tho the Lady were to Renounce her Renounciation ought to be qualified and burdened with the provisions contained in her Right and in special with the foresaid provision as to the secureing to her 7000. lib. Sterl and the other Provision foresaid for securing her relief of the Debts It was Replyed That as to the said first Alledgance that inest in all Contracts bearing Reversions whether in the formal Terms of a Reversion or Provisions upon the matter importing a Reversion and ex stylo all Decreets of Redemption do contain the said Decerniture to Renounce And the Duke being denuded in favours of his Daughter by publick Infeftment the habilis modus to return again to his Right upon Redemption is upon the Resignation As to the 2d It was Answered That the said Provisions are not in the Reversion and amount only to a personal obligement upon the Duke and his Heirs but not to be a real burden and incumberance upon the Right As to Debts It was Answered That there needs no other security for the Lady her relief of the same seing she was to be lyable thereto in contemplation of the Right if it should stand effectual in her Person And it s provided in case of Redemption she should be free thereof It was Duplyed as to the said provisions That the same being in the body of the Procuratory and Infeftment are real and they are insert unico contextu with the provision that the Lands shall be redeemable and doe qualifie the same And that notwithstanding that it be provided That in case of Redemption she should not be lyable to the Debts yet she may be in hazard to be overtaken as Successor Titulo Lucrativo In respect by the said Right it
Contract betwixt him and his deceast Father to Infeft Mistress Margaret Falconer his Sister in an Annualrent of the principal Sum of 1000 Merks out of the Lands of Halcartoun redeemable upon 1000 Merks And to pay the principal Sum upon Requisition Sir Patrick Falconer immediat Younger Brother and Heir of Line to the said Mrs. Margaret Assigned the said Sum and Contract in favours of Robert Robertson And the said Robert having intended Action against the now Lord Halcartoun as representing his Father It was Alledged That the said Sum being conquest in the person of the said Mistress Margaret it did not belong to the Heir of Line but to the immediat Elder Brother as Heir of Conquest The Lords having heard the Cause in praesentia and being resolved to decide the question betwixt the Heir of Line and Heir of Conquest as to Heretable Bonds bearing such Obligements to Infeft which had been often before in agitation but never decided but the time of the English Did Find that the said Bond and Sum did belong to the Heir of Conquest who would have succeeded in case the Right had been perfected by an Infeftment Some of the Lords were of the Opinion That Bonds of that Nature should belong to the Heirs of Line for these Reasons 1. That the Heir of Line is General Heir and Successor in universum Jus tam active quam passive and is lyable to the Onus Tutelae and other Burdens and penes quem onus penes eundem emolumentum unless the benefit of Succession be provided otherways either Provisione hominis in the Case of TailÈies or Legis and there is no Law settling upon the Heir of Conquest the Right of Succession as to Heretable Bonds whereupon no Infeftment has followed And the Law of the Majesty _____ is only in the Case of Terrae Tenementa Feuda as appears by the very Words of the said Ancient Laws and by Craig and Skeen de Verborum significatione in verbo Conquestus and verbo Breve de morte antecessoris 2. As Bonds cannot be called Heretage so they cannot be esteemed to be Conquest Heretage being properly Lands wherein a Person succeeds as Heir to his Predecessor and if the Heir of Conquest who is now found to have Right to such Bonds should decease tho the samen would descend and belong to the Heir of Line yet such Bonds cannot be called Heretage And Minors qui non tenentur placitare de haereditate paterna could not plead the same Priviledge in the case of Heretable Bonds 3. Lands and Feuda can only be said to be Heretage or to be Conquest when Parties have a real Right to the same by Infeftment but as to Bonds they do not settle Jus in re but at the most a Jus ad rem 4. Comprisings Dispositions and Reversions being more of the nature of Conquest especially Reversions which are real Rights and do militate not only against the Granters but singular Successors do descend and pertain to the Heir of Line and not to the Heir of Conquest D. 296. Veatch contra Pallat. 10. November 1675. THE Lords in the Case beforementioned February 9 and 12. 1675 Veatch against Pallat having resumed the Debate and it appearing upon Tryal that the Common Debitor Sanderson the time of the granting of the Assignation in anno 1662 in favours of Ker and Brown was not only Rebell but was in effect Fallitus and Lapsus They preferred Veatch to Pallat. D. 297. Gibson contra Rynold and Taylor 16. November 1675. A Disposition being made by a Woman cloathed with a Husband of her Liferent of a Tenement redeemable upon the payment of a certain Sum within a short Term therein mentioned allanerlie A Decreet of Declarator of the expireing of the Reversion was obtained and thereafter a Decreet of Removing at the instance of the Person Infeft upon the said Disposition against the said Woman and her Husband Whereof a Reduction and Suspension being raised upon that reason that the suspender was cloathed with a Husband the time of the expiring of the said Reversion and of the said Decreets so that non valebat agere nor use the Order of Redemption and the Husbands Negligence in suffering the Reversion to elapse and the said Decreets to be obtained ought not to prejudge her seing she was content yet to purge by payment of the Sum contained in the Reversion The Lords upon Debate amongst themselves had these Points in consideration viz. 1mo Whether or not a Redemption being limited and temporary as said is in the Case foresaid there may be yet place after the elapsing of the Term to purge And some of the Lords were of the Opinion that Reversions being stricti Juris there can be no Redemption neither in the case of Legal nor Conventional Reversions after elapsing of the Term nor place to purge But this Point was not decided 2. It was agitat whether a Woman cled with a Husband may be heard to purge upon pretence that non valebat agere as to which Point some of the Lords did demurr and it was not decided The Letters being found orderly proceeded upon an other Ground viz. In respect of the Decreet in foro contradictorio But it is thought that such Reversions should expire even against Women cloathed with Husbands seing it cannot be said that they are in the case of Minors and non valentes agere because they are cloathed with a Husband And by the contrary having the assistance and advice of their Husbands they are more able to go about their Affairs And if their Husbands refuse to concur they may apply to the Lords and desire to be authorized by them Strathurd Reporter Monro Clerk D. 298. Halyburton of Innerleith 17. November 1675. THE Lords upon a Bill presented by _____ Halyburton late of Innerleith Prisoner in Edinburgh for Debt did permit that until January next he should in the Day-time go out with a Keeper the magistrates being lyable if he should escape This was done upon pretence that he intended to settle with his Creditors which he could not do unless he were allowed the Liberty foresaid But some of the Lords were of the Opinion that the Emprisonment of a Debitor being the ultimate length of Execution and not only custodiae causa but in effect that taedio and foetore carceris Debitors may be driven to take a course with their Creditors That therefore the Lords had not power to give any Indulgence or Permission contrare to Law and in prejudice of Creditors without their consent D. 299. Mr. Vanse 18. November 1675. CAptain Martine being pursued before the Admiral for wrongs done by him in taking free Ships and Goods upon pretence that he was a Caper and that the same belonged to the Kings Enemies and having desired an Advocation the Lords thought fit that he should find Caution and because he refused and pretended he was not able did commit him and thereafter he having escaped out of the Tolbooth of
from the Pursuer in the mean time a Piece which the Pursuer was to loose in case the Defender should not be married The Lords sustained the Pursute Tho some of their Number were of the opinion that sponsiones ludicrae of the Nature foresaid ought not to be allowed Strathurd Reporter D. 328. Sir Patrick Nisbet contra Hamilton eod die AFter the Lands of a Debitor were denounced to be comprysed a voluntar Right was granted by him of an Annualrent out of the samen Lands for an Onerous Cause whereupon the Annualrenter was infeft by a publick Infeftment before any Infeftment upon the Comprising and there being upon the foresaid Rights a Competition betwixt the Compriser and the Annualrenter It was Alledged That after the Lands were denounced the Debitor could not give a voluntar Right of the same being litigious and affected with the Denounciation And on the other part it was debated that the Debitor not being inhibite might give a voluntar Right for an Onerous Cause and the first consummate Right ought to be preferred The Lords In respect it was pretended there were contrary Decisions Thought fitt not to give Answer until these should be considered D. 329. Park contra Rysly eod die A Tennent having sold Nine Score of Sheep and the samen being caryed off the Roum where he was Tennent the Master of the Ground by Warrand of the Sheriff as having therein the Right and Interest of a tacite Hypotheck did seise upon the same The Lords Found That neither the Master nor the Sheriff without citing the Partie could seise upon the said Goods not being upon the Masters Ground nor give Warrand to that purpose And yet seing quaevis causa excusat a spolio they restricted the Pursute to wrongous Intromission and allowed to the Master his Defence for Retention of the Goods until he should be payed of his Years Duty Newbyth Reporter Hamilton Clerk D. 330. _____ contra _____ eod die THE Right of a Wadset being comprised the Compriser did require for the Sum due upon the Wadset and pursued the Representatives of the Debitor It was Alledged for the Defender That he could not pay the Money unless the Pursuer should put the Defender in Possession of the Lands It was Answered That the Pursuer not having possession himself and having loosed the Wadset by Requisition he could not put the Defender in possession and the Defender might have taken possession by his own Right and it was enough that he was content to renounce the Wadset especially seing neither the Pursuer nor his Author had done any Deed to put the Defenders in worse case as to Possession and the Possession was apprehended and still continued by an Anterior Compryser and the Pursuer had obtained a Declarator finding the said Comprysing to be satisfyed and extinct so that the Defenders might easily recover Possession The Lords notwithstanding Found the Alledgeance Relevant and that the Pursuers should put the Defenders in possession D. 331. Grant contray Barclay 10. February 1676. IN a pursute upon a Passive Title of Behaving It was Alledged that before intention of the cause the Defender had gotten a Gift of the Defuncts Escheat The Lords Upon Debate amongst themselves Found that albeit the Gift was not declared yet it purged the Defenders vitious Intromission being before the intention of the Cause and that the Defender having the Goods in his hands needed not a Declarator This seemed hard to some of the Lords In respect by our Custom there being two wayes adeundi haereditatem viz. either by a Service or by Intromission was the Defuncts Goods that were in his possession The Appearand Heir by medling with the Goods gerit se pro haerede And so by his Intromission having declared his intention alse fully as if he were served Heir semel haeres cannot cease to be Heir there being Jus quaesitum to the Creditors as to a Passive Title against him 2. The pretence that the Defender is in the same case as if there were an Executor confirmed before the intention of the Cause is of no weight Seing the Defence upon the confirmation is sustained because there is a person against whom the Creditors may have Action which is not in the Case of a Donator 3. A Donator has no Right without a general Declarator And tho when the Donator has the Goods in his hand there needs not a special Declarator yet for declaring his Right there must be a general one 4. As to that pretence that the Defender cannot be Lyable as Intrometter with the Defuncts Goods because they belong to the Fisk and not to him It is Answered That the Goods being in the possession of the Defunct the Appearand Heir thereafter medleing with the same eo ipso adit and the Creditors ought not to be put to debate being he is in Possession And if a person should be served special Heir to the Defunct tho the Defuncts Right were reduced and the Haereditas could be inanis as to the benefite yet the Heir would be still Lyable Mr. Thomas Hay Clerk D. 332. Mcquail contra Mcmillan eod die A Pursute being intented against the Wife as universal Intrometter to a Defunct and her Husband pro interesse and the Wife having deceased It was Found that the Husband should not Lyable unless it were proven that he had Intromission with the same Goods upon the Intromission with which the former pursute was intented against his Wife This was not without difficulty And upon debate amongst the Lords tho it was not the present case yet the Lords enclined to be of the Opinâ—on that the Husband having gotten a Tocher ad sustinenda onera Matrimonij If the Wife had any other Estate whereunto the Husband had Right Jure Mariti he should Lyable in quantum locupletior Nevoy Reporter Robert Hamilton Clerk D. 333. Alexander Abernethie contra Arthur Forbes eod die THE Lord Saltoun having given a Bond of 20000 Merks to Alexander Abernathie upon account of his Service and of the Service done by his Brother James Abernathie Thereafter the said Lord Saltoun did grant a Bond making mention that the Lands of Auchincleuch belonged to him and his Authors and that the said Alexander had been Instrumental to obtain a Reduction of the Rights of the Estate of Salton to the behoof of the said Lord Salton and therefore obligeing my Lord Saltoun to Infeft him in the said Lands The Lords Found That the said Bond being after the former and for the Causes foresaid and having no Relation to the said former Bond of 20000 Merks that it should be in satisfaction of the same Could not be interpret to be in satisfaction thereof And the Brockard Debitor non praesumitur donare does not militate in this Case Seing the Lord Salton was in a capacity to give both the said Bonds by way of Donation and the question was not betwixt the said Alexander and the Creditor but betwixt another person to whom thereafter he had
after Circumduction of the said Terms and that such Certifications are not only the great Surety of these who obtain the same but of these who obtain Right from them conceiving themselves to be secured with such Certifications Yet the President and others of the Lords enclined to repone Alexander against the Certification the Writes being produced tho it was urged that beside the Security and Interest of People as said is it was to be considered that in this Case there were Advantages pretended to on both hands viz. by Alexander of an expired Comprysing and by the Doctor of the said Certification and that Alexander and his Authors by vertue of their Comprysing had been many years in Possession tho there was probability the Comprysing was satisfyed and it seemed to be equitable that the Doctor should have a Decreet of Removing and should give a Reversion to Alexander limited to such a time as the Lords should find just upon payment of what should be resting and unsatisfied by his and his Authors Intromission if there there were any part of the Debt yet resting But this Point was not decided the Lords having recommended to some of their Number to endeavour an Accommodation betwixt the Parties D. 340. Abercrombie contra Acheson and Livington eod die A Taverner after she had removed from her Masters Service and was Marryed was pursued to Compt and Reckon for Ale and Wine which the Pursuer offered to prove was layed in in his Cellars The Lords Found That the Pursuer ought to Lybel and prove that the Debt was yet Resting Seing it was to be presumed that Servants of that quality did Compt Weekly with their Masters and the Pursuer would not have suffered the Defender to go out from his Service before she had Compted and made payment And it appeared that there had been former Decisions to that purpose Lord Justice Clerk Reporter D. 341. Dundass contra Turnbul and other Creditors to Whitehead of Park eod die IN a Competition betwixt an Infeftment of Annualrent and a posterior Infeftment upon a Comprysing the Lords enclined to find that the Infeftment of Annualrent was made publick by a pursute of poinding the Ground before the Infeftment upon the Comprysing But some of the Lords not being clear the case was not decided Gosford Reporter D. 342. Wauch contra Jamison eod die DOctor Bonar being to go out of the Country did Dispone a Right of Lands and of an Annualrent to Mr. John Smith his near Relation upon a Backbond granted by the said Mr. John bearing that the said Right was granted partly in Trust and partly for surety to the said Mr. John for Sums due for the time to him by Bonar and of such Sums as Smith should advance to Bonar or his Creditors And that the said Right should be Redeemable by Bonar or his Sister if she should survive him by payment of the foresaid Sums Thereafter the Doctor did grant a Bond of 5000 Merks to the said Mr. John Smith bearing no Relation as to the said surety And bearing as to the conception a simple Moveable Bond to the said Mr. John his Heirs and Executors And after the said Mr. John Smiths decease there being a Competition betwixt Doctor Jamison his Heir and the Executor as to the said Sum of 5000. Merks And the question being whether it should be thought to be Heretable in respect of the said surety or Moveable In respect of the conception of the said Bond. The Lords did consider the case as of great moment as to the consequence and Interest of the People and upon debate at the Barr in praesentia and among themselves they came to these Resolutions viz. That it was consistent that a Sum should be Moveable and yet that it should be secured by an Heretable Suretie as in the case of bygone Annualrents due upon Infeftments of Annualrent and of bygone Feu-duties or Taxations the same being unquestionably Moveable ex sua natura And yet there being a real surety for the same and a real Action for poinding the Ground even competent to Executors And likewayes in the case of Wadsets loosed by Requisition and bearing a provision that notwithstanding of Requisition the real Right should stand unprejudged until payment in which case the Sum would be Movable tho still secured by Infeftment 2. That as to these qualities of Moveable or Heretable in relation to the Interest of Succession and Question betwixt Heirs and Executors the design of the Creditor animus was to be considered principally And if Debts either by the conception were Heretable ab initio or an Heretable surety taken thereafter for Moveable Debts as a Wadset or Comprysing It was to be presumed that the Creditor intended to alter the quality of the Sums and that they should belong to his Heirs but if Creditors should take an Heretable surety without any intention to alter the quality of the Debt or that the same should ly as bonum stabile and fixt the Debt continues still Moveable As v. g. If a Creditor having done exact Diligence should take a Gift of Liferent Escheat or Recognition upon a Back-bond that he should be satisfied in the first place of his Debt Or if in a Suspension a Disposition of the Debitors Estate should be consigned because he cannot find Caution Or in the case of Bonorums a Disposition of an Heretable Estate should be made in favours of his Creditors Or if a Debitor should Dispone his Estate in favours of a confident person with the burden of his Debts In these and the like Cases Because the Creditor does not intend that his Money should ly as an Heretable Debt but upon the contrary has done and is about to doe all possible Diligence for recovery of the same the Debt continues still Movable notwithstanding of the said accessory and extrinsick surety 3. Bonds being taken after a general Surety in the Terms foresaid for Debts to be advanced may be Moveable notwithstanding of such Surety if it appear that the Creditor intended it should be such As if such supervenient Bonds should be taken to Executors Excluding Heirs Especially when such general Sureties for Sums as are to be afteradvanced are not dispositive but by way of Provision containing Back-bonds and not of the Right it self viz. That the Receiver of the Right should not be lyable to denude until he get payment of the Sums that should be due to him at any time thereafter In which case it appears that he has not a positive Right and Surety for the said Sum but an Interest and exception of Retention The Lords in end In the foresaid Cause Found that the said Bond of 5000 M. In sua far as it should be made appear to be made up of the Sum mentioned in the Back-bond that was due to Smith at that time should belong to the Heir an as Heretable Sum In respect ab initio the said Surety was granted for the same But as to the residue of the
both upon the said Charter of the Miln and the said Decreet It was Alledged That the Defenders Right bears no Astriction And as to the said Charter it must be understood of the Multures belonging to the Abbot and of the Lands pertaining to or holden of him and that the Lands of Redmyre do not hold of the Abbot but of the Laird of Drum who holds the same of the King and that the Abbot could not astrict any Land but his own and as to the said Decreet that it was a latent Decreet in absence against the Defenders Author and that notwithstanding thereof the defender and his Authors had been in Possession of Liberty in swa far as tho they came sometimes to the Pursuers Miln being nearest and most convenient and the Multure being alse easie as at any other Miln yet the going to a Miln being facultatis wherein Astriction cannot be shown they had used and were in Possession of the said Liberty to go to other Milns It appeared that the same Defence being proponed in the foresaid Decreet 1597. for these who were compearing was Repelled In respect the said Charter was so Ancient and was so expresly of the Multures of the hail Parish And after so long a time it was not necessar to debate the Abbots Power to astrict the said whole Parish And the foresaid Charter does bear that the Abbot did give to the Feuer the said Miln in the same manner and alse freely as one Vmfridus had the said Miln and Multures by a Grant and Right from K. William And it was presumable that the said King who might have thirled the said Lands holden of himself did give the Miln and Multures The said Decreet likewayes 1597. did mention the Production of a Retour before the Sheriff and the verdict of an Inquest concerning the said Multures The Lords having among themselves debated and considered that the said Decreet 1597 tho in absence was a valide Decreet whereby the Defenders Author is decerned in all time coming his Tennents Cottars and Successors to pay the Multure thereinmentioned And that the said Decreet was a standing Decreet by the space of 40 years and never questioned there was no necessity to debate upon any other Grounds than that the Pursuer had thereby a Right to the said Multures Seing the Defenders did not deny that they were in use to come to the Miln but pretend a Liberty and use to go likeways to other Milns And it cannot be said that he had the said Liberty the contrare appearing by the said Decreet which never was questioned and now cannot be questioned being prescrived and yet the Lords AssoilÈied fra Bygones and Services not contained in the said Decreet It being Alledged that the Farm should not be thirled The Lords Found That the growing Corns being Astricted by the said Decreet there ought to be an exception but of Teind and Seed And that the Tennents were Lyable for such Corns as belonged to themselves and the Master for his Farm Actores Sinclair and Lermonth c. for Pittarro alteri for the Defender Lockheart and Falconer Monro Clerk In praesentia D. 352. Stenhouse contra The Heretors of Tweedmoor eod die THE Laird of Stenhouse his Lands being designed for a Gleb pursued some of the Heretors within the Parish for his relief conform to the Act of Parliament In which case in respect the pursute was by the space of 8. or 9. years after the Designation And the Heretors were in bona fide and did possess their own Lands and had made fructus suos The Lords Found That the Defenders were not Lyable to pay the Annualrent for the Sum decerned from the time of the Designation Seing usurae debentur only ex pacto vel mora Albeit it may appear That that Relief that is due ex lege is at least alse effectual as if it were ex pacto And the very Notion of Relief imports that the Party should be relieved of all Damnage sustained by him And the Pursuer was prejudged not only by the want of the value of what he was to be Relieved of but of the Interest of it Gibson Clerk D. 353. Ramsay contra Zeaman 7. June 1676. DOctor Zeaman By Contract of Marriage betwixt him and Margaret Ramsay was obliged to employ 10000 lib. to himself and her in Liferent and the Heirs of the Marriage And was also obliged to employ other 20000 lib. to himself and to the Heirs of the Marriage with a Provision that he should have power to burden the said Heirs of the Marriage with an Additional Joynture to his Wife and the provisions of his other Children at any time etiam in articulo mortis Which Joynture and Provision is accepted by the said Margaret in satisfaction of what else she could claim of Terce or Moveables And thereafter the Doctor in his Testament having named his Son and appearand Heir to be his Executor and universal Legator and having left in Legacy to his Wife the Annualrent of 3000 Merks by and attour her Joynture and diverse Provisions to his other Children and Legacies to other persons His Relict and her present Husband pursued her own Son as Executor to his Father for payment of the said Legacy left to her And it being Alledged That the Inventar of the Testament would not extend to satisfy all the Legacies and that there ought to be a Defalcation proportionably It was Answered That she was not to be considered as an ordinar Legator but in effect was a Creditor In respect of the said Provision and Power reserved to the Doctor as said is And that he had used the said power and faculty The Lords Found That the said Addition being left to her in Legacy she was in no better case than the other Legators and had no preference before them out of the Executry Yet it is thought That if there be not so much of the Executry as to satisfy the Relict her Legacy the Heir will be lyable for what she wants Seing by the said Provision the Heirs of the Marriage are burdened with what he should add to her Joynture etiam in articulo mortis And albeit nemo potest facere ne leges habeant locum in suo Testamento and no person at any time can reserve a Power to burden his Heirs at such a time as in Law he is not in legitima potestate yet when any person gives any thing or makes a Provision in favours of any other person or of his Heirs of Provision he may give and qualify the same sub modo and with what burden he pleases and therefore the Defender being not only Executor but the only Heir of the Marriage will be Lyable by the said Provision to the said Addition and Provision in favours of his Wife and Children albeit left in Lecto And he cannot frustrate the same upon pretence that he will not serve himself Heir of Provision but Heir of Line seing he is the same person and
is both Heir of Line and Heir of Provision And if need bees the Relict and Children as Creditors by the said Provision contained in the Contract of Marriage and in the Testament may get Decrees against him as charged to enter Heir of Provision and if he renounce may adjudge the 30000 lib. provided to the Heirs of the Marriage Actor Sinclair alteri McKenÈe and Zeaman Gibson Clerk In praesentia D. 354. Irving contra Forbes 8. June 1676. IN the case Irving contra Forbes It was debated among the Lords whether a person should be Lyable as vitious Intrometter notwithstanding that it was Replyed that he was confirmed Executor And Answered That as to Superintromission beyond what was confirmed he was Lyable as Intrometter It was asserted by the President and some others That it was the custom and daily practique That notwithstanding of Superintromission even before the Confirmation the Executors ought not to be Lyable but secundum vires and that a Dative ad omissa may be taken yet others were positive of the Opinion that a Person Intrometting with more nor is confirmed was Lyable as vitious Intrometter Seing it could not be denyed but he was Intrometter and he could not plead nor pretend to be Executor as to what was not confirmed and if there were no Confirmation he would without question be lyable as Intrometter and the Confirmation ought not to put him in better case seing notwithstanding of the same as to Superintromission he is not only Intrometter without warrand and so vitious but is perjured having made Faith the time of the Confirmation that nothing was omitted And it is hard that a custom contrare to the Principles of Law and to the Opinion of Hope and other Lawyers should be obtruded unless upon a Debate in praesentia there be a Decision which may be the Foundation of a Custom D. 355. Burnet contra Gib 9. June 1676. THE Lords in a SpuilÈie of Teinds Pursued at the instance of Alexander Burnet contra William Gib Found That the Defender or his Author having enclosed a peice of Marish Ground to be a Yard and having made no other use of the same since but for Carrets and Roots he was not Lyable to the Bishop Titular or his Tacksman of the Parsonage Teinds for payment either of the value of the Parsonage Teind or for the Viccarage Teind which was found by plurality of one or two Voices These that were for the Decision did found their Opinion upon these Grounds viz. 1. That the Heretor potest uti Jure suo and that the Titular has no tye nor Servitude upon him but he may either Labour or not his own Ground If he do it not in fraudem or aemulationem of purpose to prejudge the Titular 2. That the Defender in order to his own Interest having thought fit to enclose his Ground and to make use of it for Carrets and Roots for which by the custom of the Country Teind is not due neither to Parson nor Viccar the Defender is not Lyable for Teind Seing Viccarage Teind and the payment of it is regulate according to Custom It was urged by the Lords that were of an other Opinion That the Titular of the Teinds had an interesse partiarium as to Teinds so that albeit the Heretor may uti Jure suo it is to be understood that he should use the same sine injuria without prejudice of the Titular And if of purpose to prejudge the Titular he should not Labour but suffer his Lands to ly waste he will be Lyable to the Titular for the value of the Teind that was formerly payable or might have been gotten As was Found in the case of the Laird of Polwart against the Minister of Polwart For If he should inclose all or a considerable part of his Ground that was arable Land and whereof the Teind was either payed to or led by the Titular it were hard that it should be in his Power to prejudge the Parson to the advantage of the Viccar But in that case the small Teinds would be considered as great and parsonage Teinds quia surrogatum sapit naturam surrogati And far less it ought to be in the Power of an Heretor to prejudge altogether the Titular or the Minister who is provided out of the Teinds as in the case in question by encloseing Ground formerly arable and making that use of it that neither the Titular nor Parson can have any benefite of Teind It being unjust that the Titular should be prejudged and that the Heretor should advantage himself and by his own Deed should free himself of Teind And albeit by the custom in some places Teind is not payed for Carrets and Roots in Yards the same being looked upon as inconsiderable and the Bounds where the same are Sowen or planted being small parcels of Ground for the private use of the Heretors own Family yet when a considerable Tract of Ground is enclosed and parked so that the Heretor has the same if not more profite than he has of his other Laboured Ground by selling the Roots and Fruits of the same as about Edinburgh or other great Cities where great parcels of Corn-Land are taken in and enclosed to the use foresaid as by the Common Law Teind is payable even for such Fruits and Profits So by our Law the Titular ought not to be prejudged And the custom that Teind is not payable for Roots and such like ought to be understood of such as grow in Yeards about Houses as said is for the proper and domestick use of Heretor or Tennent but not where a great parcel of Ground is taken in and destinate for profite and advantage by Soweing or Setting and Selling Herbs and Roots D. 356. Nairn contra Scrymger 13. June 1676. IN a Suspension at the instance of a Person who had bought Lands upon that Reason that the Seller who charged for the Price was obliged by the Contract to give him a perfect Progress and that the Progress exhibited to him was defective In swa far as the Lands did hold of the Bishop and the Original Right was not produced but only a Charter of Confirmation in Anno 1611 and the Charter confirmed was not produced and the Progress since the Charter of Confirmation was but late and some of the Charters had no Seasin following upon the same and some Seasins wanted the Warrand of Charters and Precepts And albeit it was alledged that the Charters would be found Registrate in the Bishops Register that defect was not supplyed thereby seing the Bishops Register was not Authentick and ought to have no other respect than a Register of any other Lord or Baron of the Writes granted by them The Lords Found That tho much may be said upon the Progress foresaid to defend against any Person that will pretend Right to the Lands and to found Prescription upon them A Buyer nevertheless was not Obliged to accept and acquiesce to the same as a sufficient Progress
might question But the Lords Found That if the said Deed was on Death-bed the Defunct having not only granted an Heretable Right but having obliged himself his Heirs and Executors to pay the said Sum his Executry and Deads part would be lyable to the said Obligement even as to Moveables acquired dureing the first Marriage which may appear not to be without difficulty seing as to the Conquest during the first Marriage there could be no Deads-part the same being provided to the Children of the first Marriage as said is Tho the Heir of the Marriage may renounce to be General Heir and may take a course to establish the Conquest either in his own or in the person of an Assigney to his behoof and so not be lyable to the Defuncts Obligement without an Onerous Cause Yet it is to be considered whether if they should be served Heirs of the Marriage they would be lyable to the same seing all Heirs represent the Defunct suo ordine and are eadem perâ—ona Or if they be lyable only to the Defuncts Deeds and Obligements for Onerous Causes Item If such Provisions be not in favours of the Heirs of the Marriage but only of Bairns Whether the Bairns will be lyable to the Defuncts Debts And if all the Bairns will be lyable to the same as Heirs of Provision It is thought If Infeftment follow in favours of the Father and the Bairns of the Marriage they must be Heirs of provision to him and that all the Bairns if it be not otherways provided will be Heirs of Provision But these Points did not fall under debate Actores Cuningham alteri Dalâ—ymple Hamilton Clerk In praesentia D. 360. Galbraith contra Lesly eod die THE Lords Found That a Bond being granted by two Persons conjunctly and severally being Merchants and for the price of Merchant Ware the same could not be questioned upon that pretence that one of them was Minor the time of the granting the same It being offered to be proâ—en that he was then and is since a Trafficquing Merchant Monro Clerk Sir David Falconer having reported the same in Order to his Tryal when he was to be admitted a Lord of the Session D. 361. Irving contra Irving 22. June 1676. ALexander Irving of Lenturk raised Suspension and Reduction against John Ross in Strathmore and Francis Irving Brother to Drum of a Decreet of SpuilÈie and wrongous Intromission upon these Grounds that the Witnesses had declared falsely In swa far as being adduced by the Pursuer before the Council they had declared they knew nothing and in the Process before the Lords they declared fully and positively as to all that was Libelled And 2. They declared upon Quantities so exorbitant that the same do amount to the twentieth Corn Whereas in the Countrey where the Cornes grew they have scarce the third Corne. The Lords Found That the Decreet being in foro could not be questioned upon any Ground and in special upon the Testimonies of the Witnesses as false seing there should be no end nor period of Pleas and there being no Protestation for Reprobatores Some of the Lords were of Opinion that as a Decreet founded upon a false Write may be questioned so when the same is founded upon false Testimonies and the falsehood is evident and may be qualified sine altiore indagine the same may be likeways questioned And the Remedy of a Reduction of Decreets in foro being denyed only upon that pretence of Competent and Omitted ought not to be denyed in such cases seing the Ground foresaid that the Testimonies were false doth arise upon the Depositions of the Witnesses and was neither known nor competent to the Defender who is not allowed to see nor to question dicta testium And a remedie which in Law and Reason ought to be allowed is not taken away because it is not protested for by a Party who for the time did not know that there were any Ground for the same Newbyth Reporter Gibson Clerk D. 362. _____ contra Sheil eod die A Comprysing being deduced at the Instance of an Assigney against the Representative of the Debitor as lawfully charged and the Compriser upon his Infeftment having intented a pursute for Mails and Duties It was Alledged That the Cedent was debitor to the Defunct so that the Debt due to the Defunct did compense the Debt due by him and the Ground of the Comprysing being satisfied the Comprysing is extinguished Which case being Reported to the Lords they had these Points in debate and consideration amongst themselves viz. 1. That Compensation is only of personal Debts and of Sums of Money de liquido in liquidum but is not receivable in the case of Real Rights and Lands and Pursutes upon the same Seing in such processes there is no Debt craved but the pursute is founded upon a Real Right And some of the Lords being enclined to think that the Alledgance is not founded upon Compensation but upon Payment or the Equivalent viz. That the Cedent habebat intus and in effect and upon the matter was satisfied being Debitor in alse much as was due to him by the Defunct And the Lords are in use to favour Debitors whose Lands are Comprised and in order to extinguish Comprisings to sustain process for Compt and Reckoning and declaring the same to be extinct not only by Intromission but by Compensation Others were of the Opinion that tho Compensation ipso jure minuit tollit obligationem where it is proponed yet if the same be not proponed before the Decreet whereupon the Comprysing proceeds and when both Debts are in finibus of a personal Obligement the Debt contained in the Comprysing cannot be said to have been payed before the Comprysing and after the Comprysing is deduced it cannot be extinguished but either by Intromission within the Years of the Legal or by Redemption 2. Whatever may be pretended as to the Cedent that he could not be in bona fide to compryse for a Debt due to him having alse much in his hand as would satisfy the same yet such pretences are not competent against the Third Person having bona fide comprysed or having Jus quaesitum As in the case of a Horning upon a Decreet it could not be obtruded to the Donator that the Debt was satisfied The Obtainer of the Decreet being Debitor to the Defender And if this should be sustained expired Comprysings and Infeftments thereupon being now a most ordinary surety may be easily subverted upon pretence that the Cedent was Debitor in Sums equivalent to the person against whom the Comprysing is deduced And there is a great difference betwixt payment and satisfaction either by actual payment of the Debt or by Intromission with the Maills and Duties of the Lands comprysed which is obvious and easie to be known and betwixt the pretence of satisfaction by Compensation seing payment is exceptio in rem and extinguisheth Debts as to all effects and Intromission is so notour that
well if not more to a Personal Faculty than to an Heretable Fee 2. The said Clause is conceived per verba maxime personalia viz. That the half of the Conquest should be disposed by her and if she should think fit which are verba arbitrii facultatis 3. In dubiis minimum is to be understood solitum ut evitetur absurdum And Respect is to be had to the quality of the Person And albeit mean Persons in their Contracts of Marriage do sometimes provide that the Longest liver may have all It is not usual nor can be instanced that ever in a Contract of Persons of quality a Fee was provided to a Wife It being the great design of the Marriage of such Persons to raise a Family to the Husband and it being very ordinary that a personal Faculty should be given to the Wife 4. If the Contract had been extended it might and ought to have been extended in these Terms That the Lady should Liferent the haill Conquest and in case of no Issue she should have the Personal Faculty foresaid And tho the Conquest had been provided to the Husband and her and the Longest liver of them two and the Heirs of the Marriage whilks faiÈieing the one half to his Heirs and the other to hers her Husband would have been Fiar and in the case foresaid her Heirs would have been Heirs of Provision to him as to the half of the Conquest Actores Sinclair Bernie c. alteri Lockheart c. D. 365. Doctor Wallace contra Symson June 1676. A Bill of Exchange being drawn by a Merchant in Edinburgh upon his Correspondent at London payable to a Merchant at Bristol the person to whom the said Bill was payable was not in England for the time but had gone to Ireland but his Freind having broken up the Letter direct to him and having Found enclosed the said Bill of Exchange did indorse the same to be payed to another person upon the place who did accordingly present the said Bill to the Merchant on whom it was drawn who did accept the same conditionally when it should be right indorsed And thereafter the person to whom the said Bill was payable having duely indorsed the same to be payed as the Indorsation did bear The Mercant upon whom the said Bill was drawn did in the interim break before the Bill swa Indorsed was presented to him There having interveened betwixt the date of the Bill which was 2 d. January and the Right Indorsement of the same which was about the end of April about 4. Moneths So that the Question was whether the Drawer of the said Bill should be Lyable to Refound the Sum thereincontained It was Alledged That he could not be Lyable In respect the said Bill was not returned to him protested either for not Acceptance or for not Payment And albeit in Law and by the custom of Merchants the Drawer be Lyable unless the Bill be payed yet that is ever understood with a Proviso that Diligence should be done and Protests should be taken unless the Person upon whom the Bill had been drawen had been evidently non solvent the time of drawing the said Bill which could not be Alledged in this case seing the Defender had drawen upon the same person after the said Bill to the value of 2000 lib. sterling which had been Answered And had likewayes Answered Bills of his of great value whereas if the Bill in Question had been returned Protested he would have retained the Provision he had in his Hand or done Diligence to recover the value of the said Bill or might have countermanded the said Bill and given an other Bill payable to a person that was upon the place The Lords notwithstanding Found That the Defender and Drawer of the said Bill should be Lyable But some of the Lords were of another Judgement And the Defender Repined and gave in a Bill desiring to be Heard D. 366. _____ contra _____ 4. July 676. IN a Suspension against an Assigney upon a Reason of Compensation viz. That the Suspender had Right to the equivalent Sum due by the Cedent by an Assignation prior to the Assignation granted by the Cedent to the Charger It was Answered That the Assignation granted to the Charger was intimate before the Intimation of the Assignation granted to the Suspender Whereunto It was Replyed That ipso momento that the Suspender got the Assignation foresaid being thereby Creditor to the Cedent he had a Ground of Compensation against the Cedent and consequently against the Charger as Assigney And an Assignation without Intimation is a sufficient Right and Ground of Compensation unless there were an other Assigney to the same Sum competing upon that Ground that he had a better Right by an Assignation intimate The Lords notwithstanding did not allow Compensation and Found the Letters orderly proceeded Newbyth Reporter Mr. Thomas Hay Clerk D. 367. Buchanan contra Logie eod die THE Lords Found That a person out of the Country being cited at the Mercat-Cross of Edinburgh and Pear and Shoar of Leith upon 60. Dayes warning to be holden as confest tho he was not cited personally and that the Decreet could not be questioned upon that Ground as Null But if he were Living and desired to be reponed to his Oath there might be Ground to Repone him Newbyth Reporter Mr. John Hay Clerk D. 368. Lesly contra Fletcher 5. July 1676. SIR John Fletcher being obliged by Contract of Marriage to provide Dam Marion Lesly his Wife of a second Marriage to the Liferent of a Sum of 10000 lib. did thereafter Infeft her in the Lands of Gilchristoun being of more value and of a greater Rent Whereupon she having obtained a Decreet against the Tennents The Lords Found her Right being granted stante Matrimonio and thereafter revocked Null In swa far as it exceeded the Provision in her Contract of Marriage And sustained her Decreet only effeirand thereto and ordained her to be Lyable for the superplus until the said Sum of 10000 lib. should be employed for her Liferent conform to her Contract of Marriage Forret Reporter Mr. Thomas Hay Clerk D. 369. Cheisly contra Edgar of Wadderly eod die EDgar of Wadderly being Charged upon an Indenture betwixt him and Samuel Chiesly Chirurgeon for payment of the Sum thereincontained for his Brothers Prentice-fee and Entertainment dureing his Prentice-ship And having Suspended the said Bond and intented a Reduction thereof upon Minority and Lesion The Lords Found That the Second Brother having no other Means nor Provision his Eldest Brother who was Heir to his Father and had the Estate ought to Entertain him and to put him to a Calling And did not sustain the Reason of Lesion Forret Reporter Gibson Clerk D. 370. Pitrichie contra Geight eod die SIR Richard Maitland of Pitrichie having obtained a Gift of Recognition of the Estate of Geight There was thereafter a Minute betwixt him and his Father and the Laird of Geight
appearand Heir to pay to Adolphus natural Son to the said Sir Alexander 6000. merks The said Mr. Francis did after the Defuncts decease grant Bond relative to the foresaid Bond and to the order for Adolphus his Provision whereby he ratified the foresaid Bond and was obliged to pay the said Provision to Adolphus upon this condition that the Countess of Midleton should Warrand and Relieve the Estate of Largo from all Inconvenients and in special such as might arise from his Uncles Intromission with publick Accompts and if the Estate should not be free in manner foresaid that the said Bond should be void The said Adolphus having pursued upon the foresaid Bond It was Alledged That it was Conditional as said is And the Defender did condescend that the Estate was distressed for a Debt of 20000 Merks for which a Decreet was recovered against his Heir The Lords Found notwithstanding That the said Resolutive Condition was to be understood so that the Bond should not be void altogether but only proportionally effeirand to the distress Newton Reporter Mr. Thomas Hay Clerk This Decision tho it may appear equitable appears to be hard in strictness of Law the precise Terms of the Condition being considered D. 398. Colledge of Glasgow contra Parishoners of Jedburgh eod die THE Lords Found That a Presentation of an actual Minister before the Term was not a compleat Right to the Stipend unless there had been a Warrand for his Transportation Thesaurer-deput Reporter Gibson Clerk D. 399. Inglis contra Inglis 13. December 1676. MR. Cornelius Inglis having granted a Bond to Mr. John Inglis for a Sum due to himself and for his Relief of Cautionries for the said Mr. Cornelius whereby he was obliged for his Surety to infeft him in certain Lands to be possessed by him in case of not payment of the Annualrent due to himself and the reporting Discharges from the Creditors to whom he was engaged and whereupon the said Mr. John was infeft by a base Infeftment The said Mr. Cornelius in respect his Son Mr. Patrick had undertaken to pay his Debts did dispone to him his Lands whereupon the said Mr. Patrick was infeft by a Publick Infeftment The said Lands being thereafter Comprised from the said Mr. Patrick and there being a Competition betwixt the said Mr. John Inglis and diverse other Creditors of the said Mr. Cornelius and his Son Mr. Patrick who had comprised the said Lands from the said Mr. Patrick The Lords Found That Mr. John Inglis was preferable to the said other Creditors In respect tho their Infeftments upon their Comprisings were publick and the said Mr. John his Infeftment was holden of the granter yet the said Mr. John's Right was publick as to Mr. Patrick in swa far as the said Mr. Patrick had corroborate the same and before the said Comprisings had made payment to the said Mr. John of certain bygone Annualrents in contemplation of his said Right and had taken a Discharge from him relating to the same so that his Right being Publick as to Mr. Patrick was publick as to those who had Right from him and Infeftments holden of the Granter being valid Rights by the Common Law and by Act of Parliament and Statute invalid only as to others who had gotten publick Infeftments in respect of the presumption of Fraud and Simulation the said Presumption cedit veritati and in this case is taken away in manner foresaid The Lords Found That notwithstanding that the Right was granted to Mr. Patrick upon the Consideration foresaid and for payment of the Debts thereinmentioned that the Creditors mentioned in the same had not a real Interest in the said Lands but only a personal Action against the said Mr. Patrick in respect the said Right was not granted to him for their use and behoof neither was it expresly burdened with their Debts and therefore the Lords did Find That all the Creditors both of the said Mr. Cornelius and Mr. Patrick who had Comprised within Year and Day should come in pari passu D. 400. Margaret Nevoy contra the Lord Balmerinoch eod die THE Lord Balmerinoch was pursued as Representing and Behaving as Heir to the Lord Couper at the Instance of Margaret Nevoy and diverse other Creditors of the said Lord Couper upon that Ground that he had ratified a Disposition made by the said Lord Couper in favours of his Lady on Death-bed and was obliged to comprise the saids Lands and to give the said Lady a Right to the Comprysing to be deduced that should be preferable to other Creditors And that by the Act of Sederunt in my Lord Nithsdales Case appearand Heirs granting Bonds to the effect their Predecessors Estate may be established in their Person or in the Person of some Confident to their behoof are lyable as Behaving and It was Alledged for the Defender that Behaving is magis animi quam facti and it is evident that the Defender did shune to be Heir and did of purpose take the Course foresaid that he should not represent the defunct The Lords Found That the Condescendence was only relevant in these Terms viz. That the Defender or any Confident to his behoof had comprised the said Estate for Balmerinoch's own Debt and had possest by vertue of the Comprysing Or that the Lord Balmerinoch had communicate the Right of the said Comprysing to the Lady Couper and that she had possest by vertue thereof and could not defend her self with her own Right as being in Lecto Or otherwayes defective It was the Opinion of some of the Lords That it was sufficient and Relevant to say that Balmerinoch had Comprysed for his own Debt and was obliged to Communicate the said Comprysing and had ratified the Lady Couper's Right For these Reasons 1. The Law considers quod agitur and not quod simulate concipitur And the Lord Balmerinoch by taking the course foresaid to compryse for his own Debt intends upon the matter adire and to carry away his Uncles Estate to frustrate Creditors 2. Tho it be pretended that there is a difference betwixt Nithsdal's Case and this In respect in that case the Adjudication was upon Bonds granted by himself after his Fathers decease And in this the Comprysing is for my Lord Balmerinoch's Debts Contracted before my Lord Couper's Death The said difference is not considerable seing as to that case there was a design to carry away the Defuncts Estate by a Deed of the Appearand Heir to the prejudice of Creditors and there is the same in this 3. Tho my Lord Balmerinoch had granted only a Ratification without Communicating any Right eo ipso he behaved as Heir In respect he had ratified the Ladies Right for any Right or Interest he had himself and he had an Interest as Appearand Heir sufficient to establish a Right in the Person of the said Lady and to prejudge Creditors so that they could not question the same Seing Rights on Death-bed being consented to by the Appearand Heir when they
prejudged by any Deed of the Rebel in filling up of the same It was also Found That albeit the Lord Bamff by his Letter was bound up that he could not question the said Bonds upon the pretence foresaid of Condictio or any other that might have been competent against the said John Lyon Yet notwithstanding of the said Letter the King might have given and he might accept either a Gift of Lyons Escheat or a Right from the Donator and thereupon might claim Right to the said Sums Thesaurer Depute Reporter Mr. John Hay Clerk D. 406. Tennent Young and others contra Sandy Procurator-Fiscal of the Regality of Ogilface eod die IN a Declarator of a Liferent-Escheat It was Alledged That there could be no Escheat upon the Horning Lybelled Because it was upon Letters direct by the Secret Council upon a Decreet of a Regality Court And by the Acts of Parliament The Lords of Session are only warranted to direct Letters of Horning summarly upon the Decreets of Sheriffs and Baillies of Regality and other Inferior Judges The Lords Thought That the Council could not direct Letters of Horning upon the said Decreet Seing before the Acts of Parliament Letters of Horning could not be direct upon the Decreets of Inferiour Judges summarly without a Decreet Conforme before the Lords of Session And Statutes being Stricti Juris the Council could not direct Letters unless by the same Statute they had been warranted to that effect and it appears that the said Statute was founded upon good Reason and Considerations tho they be not exprest viz. That the Lords of Session are always sitting in the time of Session and in vacance there is some of their Number appointed to receive and pass Bills of Suspension if there be cause whereas the Council sitteth but once a Week ordinarly in Session-time and in Vacance but thrice 2. The Lords do not pass Suspensions but upon good Reasons and they are to consider the said Decreets which is not proper for the Council 3. As Suspensions are raised of the said Decreets so oft times there is a necessity of raising Reductions and the Lords of Council are not competent Judges to the Reduction of the said Decreets But the Lords thought not fit that there should be a question betwixt them and the Council concerning their Priviledge and therefore did forbear to give answer until some accommodation should be endeavoured And it was proposed by some that the Decreet of the Regality Court being for keeping of Conventicles and that practice concerning so much the Peace of the Countrey that all Disturbance thereby might be prevented and upon that account it being recommended to the Council by Act of Parliament that they should see the Laws against Conventicles put effectually in execution The Council as they might conveen the Contraveeners before themselves may commissionate the Inferiour Courts to proceed as their Delegats and upon their Decreets given by them as their Delegats that they may direct Letters of Horning Thesaurer-depute Reporter D. 407. Ker contra Hunter 20 December 1676. A Personal Action was sustained upon a Right of Annualrent against the Tennents during their Possession for the Mails and Duties effeirand to the said Annualrent Thesaurer-depute Reporter Mr. Thomas Hay Clerk D. 408. Carnegie of Balmachie contra Durham of Anachie eod die THE Lords Found That albeit by the common Law Annualrent be due for Tocher yet by Our Custom it is not payable unless it be so provided by the Bond or Contract for the same but in the case in question They Found the Defender lyable to pay Annualrent in respect the Debitor had been in use of payment at the least had promised to pay Annualrent for certain years bygone and Annualrent once payed implyes a tacite Paction to continue the payment of the same Thesaurer-depute Reporter _____ Clerk D. 409. Veitch contra Pallat. eod die THE Lords Found That a Rebel contracting Debt after Rebellion cannot assign in satisfaction of the same any debt due to him and tho the Assigney should transact with the Debitor of the Debt assigned before a Gift and Declarator the Donator will be preferable Lockheart and Hog for Veitch alteri Cuningham and Seaton Gibson Clerk In praesentia D. 410. Inter eosdem eod die AND in the same Case It was Found That a Bond granted after Horning tho it did bear that the same was for Wines yet being the Rebels assertion could not prejudge the King but it being alledged and offered to be proven that the said Wines were truely furnished before the Rebellion The Lords Found the Alledgance relevant to be proven only by the Rebels Compt Books and by Books of Entry and not simply by Witnesses without such Adminicles in Write D. 411. Pallat contra Veitch eod die THE Lords likeways Found That the Presumption introduced by the Act of Parliament that Gifts of Escheat are simulate in respect that the Rebel is suffered to possess is only in that case where the Rebel has a Visible and Considerable Estate of Lands or Tacks and is in possession of the same but when the Rebells Estate is either not considerable consisting only of an Aiker or two which was the case in question or in nominibus and not known to the Donator so that the Donator had reason not to trouble himself and to look after either that which was inconsiderable or which was not known to him there is no ground to presume that the Gift is simulate D. 412. Tait contra Walker 22. December 1676. THE Children of a second Marriage having pursued the Son of the first for Implement of their Mothers Contract of Marriage and the Provisions therein contained in their favours It was Alledged That they were Debitors themselves in swa far as they were Executors named and confirmed to their Father And It being Replyed That the Testament was given up by the Mother they being Infants for the time and she was not their Tutrix and so could not bind them The Lords Found That there was Difficulty in the case in respect the Pursuers were now past 40 years and they had never questioned or desired to be reponed against the said Confirmation And on the other part It was hard that a Deed of their Mother having no Authority to do the same as Tutor or Curator should bind them and there was no necessity to be reponed against the same it not being their Deed and being ipso Jure void and therefore before Answer the Lords thought sit to try if the Pursuers had meddled with any part of the Executry or had done any Deed that could import Homologation of the said Testament Newbyth Reporter D. 413. _____ contra _____ eod die IT was questioned amongst the Lords whether an Inhibition could be sustained albeit the Execution did not bear a Copy to have been affixt at the Mercat-cross And it was Resolved as to the future it should be declared that Executions of Inhibitions should be null unless Copies were affixt In
respect there can be no Executions without giving of Copies either personally or at their dwelling house And when the Leidges are inhibite at the Mercat-cross in general so that a Copy cannot be given to every person it ought to be left at the Mercat-cross in subsidium But because it was informed that many Executions did not bear Copies to be left at the Mercat-cross The Lords did forbear to give Answer as to the Inhibition in question until the stile and custom should be tryed D. 414. Dick of Grange contra Sir Andrew Dick. 22. December 1676. SIR Andrew Dick having obtained upon a Petition to His Majesty a Warrand to the Exchequer to pay to his Wife and Children 130 lib. sterl Yearly The said Annuity being Arrested at the instance of _____ Dick of Grange It was Alledged in a Process to make forthcoming that being Alimentary it could not be Arrested Whereunto it was Replyed that the said Sum was not Alimentary so that it could not be affected with Sir Andrew his Debts In respect whatsomever belongeth to a Debitor either on his own Right or Jure Mariti is Lyable to his Debts and it is not in the Power of a Debitor to make any thing belong unto him Alimentary but there must be an express constitution to that effect which is only in that case where the King or any other person doth give any thing and doth qualify their own Gift with that express provision that it should be only for the Aliment of the person gratified that it should not be affected with any Debt or Execution for the same whereas His Majesties Grant was only in the Terms foresaid and was procured from His Majesty not upon any special consideration or respect to Sir Andrew's Lady but upon a Representation made by Sir Andrew that he had a former Wadset from the Earl of Mortoun of his Estate in Orknay and the same being taken from him by a Reduction at the instance of His Majestie of the Earl of Mortoun's Right of Orkney he and his Family would be in a sad condition And therefore the said Annuity being granted by His Majesty in lieu and intuitu of the said former Right surrogatum sapit naturam surrogati It was farder Replyed That albeit the said Annuity were Alimentary the Pursuers Debt ought to affect the same being likewayes Alimentary In respect it was for Money furnished for the Aliment and Entertainment of the said Sir Andrew and his Lady privilegiatus non utitur privilegio contra privilegiatum The Lords Found That the said Annuity was Alimentary and could not be Arrested and the Aliment being de die in diem the Debt due to the Pursuer could not affect the same unless it had been for Aliment while the Annuity in question was in cursu Forret Reporter Mr. Thomas Hay Clerk D. 415. E. Argyle contra The Laird of Mâ—naughtoun 3. January 1677. IN a pursute at the instance of the Earl of Argyle against the Laird of Mâ—nauchtoun who held some Lands of him Ward for the single avail of his Marriage It was Alledged for the Defender 1. That the Defender had Marryed the time of the Usurpation at which time the Casualities of Ward and Marriage were taken away by an Act and Proclamation of the Usurpers whereby the Defender was secured and was in bona fide to Marry without requireing the Superiors Consent 2. De facto the Superior had consented to his Marriage In swa far as the Defender having given notice to him by a Letter the Marquess of Argyle being then at London that he was to Marry with a Gentle-Woman who is now his Wife the Marquess did return a Letter which was produced showing that he could not but approve his matching with the said Gentle-Woman being the Laird of Ardkindles Daughter and if they should proceed to the Marriage that he wished them well Whereunto It was Replyed That the Usurpers by their Act could not prejudge the Pursuer or any other Superior but that they might claim the Obventions and Casualities that did fall unto them by the nature of their Vassals Right as it was found in the case of Sir George Kinaâ—rd and the Master of Gray that Lands holden in Ward being Disponed in the time of the Usurpation without the Superiors consent did recognise notwithstanding of the said Act And as to the said Consent It was Replyed that the said Letter was but a Civil Complement without any mention of the Marquess his Interest as Superior and without an express Licence to Marry and Discharging any Interest or pretence that he had to the Defenders Marriage Upon Debate at the Bar and among the Lords Some were of the Opinion that there being no Contempt that could be alledged of the Superior and the Vassal having so much reason to think that he needed not his Consent In respect the said Act was a Law de facto and for the time the whole Country being forced to submit to the Usurpers and to acquiesce to their Orders That Communis error facit Jus and quaevis causa excusat as to Casualities arising upon feudal Delinquency or Contempt And the Superiors Interest that was intended of the Law was not that he should have a Sum of Money but that his Vassal should not Marry without his Consent and match with Families either disaffected or in which the Superior could not have confidence and the avail of Marriage is penal in case the Vassal should either Marry without the Superiors consent or should refuse to Marry a person profered by the Superior to be his Wife Upon the foresaid Considerations they were of Opinion that the Defence was relevant and that there was a great difference betwixt the case of Recognition and Marriage in regard the reason of the Decision in the case foresaid was that the Vassal did upon the matter contemn the Superior after the Kings Restitution seing he did not apply for a Confirmation Whereas the Vassal being once married it were to no purpose to desire the Superiors Consent On the other part some of the Lords argued that the single Avail is not penal but only the double seing the Vassal attaining to the age of marriage if he should die unmaryed yet the single avail would be due Whereunto It was Answered That poena is in Law when a Person is lyable to pay a Sum either for doing or not doing a Deed and as the Vassal is lyable to the double Avail for refuseing the Person offered by the Superior so he is lyable to the single for not marrying and tho matrimonia are libera so that a Person may marry or not as he pleases yet causative many things are allowed which cannot be directly And it being the design of the Feudal Law and Superiors in giving out their Lands to have still Vassals to serve them and their Family the appearand Heir is obliged by the nature of his Holding to marry or in poenam to pay the avail and if the Vassal
Corroboration granted by the Son the Fiar they had Comprysed and were Infeft by publick Infeftments at least had charged the Superior So that their Right being publick and for a true Debt anterior to the Childrens Provision they were preferable to the Children their Infeftment being base The Lords Found That the Children should be preferred In respect the Comprysings were against the Son and the Comprysers could be in no better Case than the Son himself whose Right was affected with the said faculty in favours of the Children So that neither he nor any having Right from him could question the Right granted by vertue of and conform to the said Faculty This Decision being by plurality seemed hard to some of the Lords who did consider that the foresaid Faculty was not only in behalf of the Children but of supervenient Creditors if the Father had thereafter Contracted any Debt and if the Father had given surety to the said Supervenient Creditors by base Infeftments and if his Anterior Creditors before the said Contract had comprysed and had been Infeft they would have been preferred to the said posterior Creditors having only base Rights and multo magis to the Children They considered also That the Estate being by the said Contract Disponed simply to the Son with a Reservation only of the Fathers Liferent and the said Faculty and the Son not being obliged to pay the Fathers Debts by the said Contract if there had been 18000 Merks of Debt anterior to the Contract Anterior Creditors might have pursued the Son for the same not only because he was Appearand Heir and Successor Titulo Lucrativo but because he was obliged by the Contract at least his Estate burdened for the said Sum And the Anterior Creditors might either have taken that course or might have Comprysed the Interest competent to the Father by the said Faculty And seing the Son might have been forced in manner foresaid to satisfy the said Creditors he might have granted Bonds of Corroboration whereupon they might have Comprysed and having comprysed and having gotten publick Rights they are preferable to the base Right of the Children In the same Cause The Creditors did alledge that they ought to be preferred to the Children because their Provision was after their Debt and was without an Onerous Cause And nevertheless the Lords Found the Defence for the Children Relevant viz. That their Father the time of the granting of the said Bonâ— for their Provision had a sufficient Estate besides out of which the Creditors might have been satisfied This Decision being also by the Major part seemed hard to others who thought that a Debitor could do no Deed in prejudice of his Creditors without an Onerous Cause And tho the Father might be looked upon the time of the granting of Provisions to Children as in a good condition and therefore the Creditors to be secure and needed not do Diligence yet if thereafter he should become insolvent the loss ought to be upon the Children and not the Creditors And that it being a principle That a Debitor can do nothing in prejudice of his Creditor without an Onerous Cause It is certainly both Fraud and prejudice that he should not pay his Debt but should give away to his Children that part of his Estate which the Creditors might have affected And Inhibitions being only in these terms That the Party Inhibite should do no Deed in defraud of the Creditor It might be pretended by the same Reason in Reductions ex capite Inhibitionis that the Party Inhibite did nothing in defraud or prejudice of the Pursuer In respect the time of the granting the Bond or Right craved to be reduced he had Effects and sufficiency of Estate beside Lockheart c. for Queensberry and other Creditors Cuninghame Anderson and MckenÈie for the Children and Relict Gibson Clerk In praesentia D. 419. Stewart of Castlemilk contra Sir John Whitefoord 10. January 1677. SIR Archibald Stewart of Castlemilk having pursued a Reduction of a Disposition of the Lands of Coats made by James Stewart of Minto in favours of Sir John Whitefoord ex capite metus In swa far as the said Sir John Whitefoord had taken the said James and kept him in privato carcere for some time and thereafter having a Caption against him had detained him Prisoner and had caused transport and convey him in that condition from diverse places in the night Season and by his Servants had threatned him with long Imprisonment and in end had prevailed with him to dispone to him the saids Lands being eight Chalders Victual of Rent and where there was a Coal of 100. lib. sterl of Rent upon an Obligement only to pay him an yearly Annuity of 400. merks In which process the said Sir John and Duke Hamilton who had thereafter acquired the said Lands from the said Sir John did compear and propone the Defences following 1. That the foresaid Qualifications of Force were not Relevant to import metus qui potest cadere in Constantem virum being neither mortis nor Cruciatus nor so circumstantiate as is required of the Law for founding the said Action And 2 That albeit metus were relevantly qualified the foresaid Deed cannot be questioned upon pretence of the same unless the said James Stewart had been lesed or damnified by the same Seing it appears by the Title quod metus causa c. A Reduction and Restitution upon that head is not competent ubi non est damnum nihil abest as is clear by diverse Texts in the case of a Creditor useing force to get what is unquestionably due to him and in this case the said James had no prejudice in respect he was obliged by an antecedent Minute to dispon the said Lands so that the said Disposition was but for implement of the said Minute which the said Sir John did give back to be cancelled by Minto when he got the said Disposition And 3. It was offered to be proven that after the said James was at liberty the said Disposition was granted by him The Lords Found That the Libel and Qualifications of metus and Force were relevant and yet in respect the Defenders were so positive as to their Alledgance that the Disponer was at liberty when he granted the said Right they allowed a conjunct Probation concerning the said Qualifications of Force and the condition the Disponer was in for the time and the way of granting the said Right whether he was under Restraint and the Impression of Fear or in Freedom Or whether the samen was granted by him freely and voluntarly As to the said other Defence that there was no damnum the Lords repelled the same and would not allow that point of Fact to be tryed whether or not there were a former Minute for Implement of which the said Right was granted And whether it was given back for and the time of the granting of the said Disposition Some of the Lords were of the Opinion That
the Qualifications libelled were not relevant to import such a force and metus as could be the ground of a Reduction of the said Right ex eo capite tho they were convinced that the practice foresaid is most unwarrantable and dolosa and that thereupon the Right may be questioned as to Sir John himself but not as to a singular Successor and that there is a difference betwixt a Reduction ex capite metus which is competent against singular Successors and a Reduction ex capite doli which is not competent against a singular Successor who bona fide has acquired a Right for an Onerous Cause But diverse of the Lords were of Opinion that the Defence foresaid that there was no damnum was most relevant for these Reasons viz. All Restitutions upon what mediums soever whether metus or dolus or lubricum aetatis are against damnum and prejudice for frustra should Restitution be craved if there be no damnum 2. It is evident by diverse Laws and the Title foresaid quod metus c. That ex edicto quod metus causa c. non datur actio si nihil absit succurritur only captis laesis 3. By the Civil Law there were diverse Remedies competent to these who had been forced to do any deed viz. A Civil action ex Edicto Praetoris and a Criminal Action ex lege Julia and a Penal Remedy ex decreto Divi Marci That a Creditor by force extorting what is truely due amittit Jus Crediti And our Reductions ex capite metus are but Civil Actions as that ex Edicto And the said other Remedies being penal by the Municipal Law of the Romans cannot be introduced by the Lords of Session being Civil Judges without an Act of Parliament 4. All Restitutions should Repone both Parties in integrum and it were unjust that if it were constant and the Lords were convinced upon their own certain knowledge that there had been an antecedent Minute and that the same had been cancelled upon the granting of the said Disposition that Minto should be restored and not the said Sir John that now res non est integra seing the antecedent Minute is not Extant and tho it were Extant it would be ineffectual In respect Minto has Disponed the foresaid Lands to this Pursuer who is Infeft and having the first Infeftment would be preferable whether the Minute were Extant or not 5. As to the pretence that was so much urged that it would be of dangerous consequence that such Deeds extorted by force should be sustained upon the pretext of non damnum and that it would tend to encourage such practices the same is of no weight seing the Deed being just upon the matter may and ought to be sustained and yet the way of procureing the same may be severely punished 6. As to the difficulty of Probation there being no Adminicles in Write that there were such a Minute It is not considerable Seing multa permittuntur causative which cannot be done directly and that tho the Result of Probation by Witnesses may be the making up or taking away of Writes which cannot be done directly but by Write yet when that which is to be proven is in Fact it may be proven by Witnesses as in the same case that the Disposition in question was Extorted it may be proven by Witnesses to take away the said Disposition And if a person should be forced to grant a Disposition of Lands of 20. Chalders of Victual of Rent and in Exchange should get a Disposition at the same time of other Lands of the half value it were a good Defence and probable by Witnesses that the Pursuer did get the time of the granting the Disposition of Lands worth 20 Chalder Victual a Disposition of less value and Contingentia causae and of a Transaction and circumstances of the same ought not to be divided but may and ought to be entirely proven by Witnesses alse well for the Defender as the Pursuer Actor Lockheart and Sinclair alteri Cuningham and MckenÈie Mr. John Hay Clerk In praesentia D. 420. Commissar of St. Andrews contra Watson 11. January 1677. THE Lords sustained a pursute at the instance of the Master of the Ground against these who had bought from his Tennent his Corns and other Goods wherein the Pursuer had a Tacite Hypothâ—â—k Glendoich Reporter Mr. John Hay Clerk D. 421. Viscount of Oxenford contra Mr. John Cockburn eod die MR. John Cockburne having gone Abroad with the Viscount of Oxenford and after his Return having gotten several Bonds from the said Viscount of considerable Sums and also a Pension of 1000 Merks And having charged upon the same the Viscount Suspended upon that Reason that the said Mr. John dureing their being Abroad had received great Sums of Money remitted to him upon the Viscounts account for which he had not Compted and that after Compt and Reckoning he will be found Debitor to the Viscount in more than the Sums charged for And it being Alledged by the said Mr. John that he is only comptable for his Intromission and that his Actual Intromission ought to be Instructed by Write or by his Oath and the Declarations of Merchants and Factors Abroad cannot be Probation to bind upon him so great Intromissions The Lords considered the condition of the Viscount for the time that he could not Intromet himself and that the said Mr. John had such Influence upon him that having been his Governour at Schools and upon the desire of his Friends being put from him by an Act of Council He notwithstanding without and contrare to the Advice of his Friends carryed him Abroad and since his return had gotten from him the Bonds foresaid And therefore thought fit to try the Business to the bottom And to ordain the said Mr. John to give in his Compts of what was received and debursed when the Viscount was Abroad and the Factors and other Witnesses to be Examined concerning his Intromission and whether or not any Moneys that were remitted for the Viscounts use were received by the Viscount himself or by the said Mr. John Redford Reporter Mr. John Hay Clerk D. 422. Laird of Bavilay contra Barbara Dalmahoy eod die A Horning against a Person dwelling within the Shire of Edinburgh upon Lands Annexed to the Barony of Renfrew being denounced at Edinburgh was sustained In respect that the said Lands were Locally within the Shyre of Edinburgh And the Rebel In respect of his Residence there was Lyable to the Jurisdiction of the Sheriff and to all Burdens and had all Capacities competent to the Shire of Edinburgh Mr. John Hay Clerk D. 423. Baillie contra Somervel eod die THERE being a Provision in a Contract of Marriage in these Terms that 5000 Merks of the Tocher should return to the Father in Law in case his Daughter should decease before her Husband within the space of 6 Years after the Marriage there being no Children betwixt them then on life
same The Lords Found That he should not be urged to declare upon that Interrogator In respect it was not desired he should be interrogate upon the same when he did declare and having denyed that he was any ways Debitor he would be involved in Perjury if upon a special Interrogator he should acknowledge that he was Debtor upon the account therein mentioned Mr. Thomas Hay Clerk Stewart and Swinton Advocats D. 454. Patrick contra Anderson eod die AN Executor having alledged that the Testament was Exhausted and for probation having produced the Defuncts Bond with a Discharge from the Creditor after the Defuncts decease and it being Found That the same did not prove unless there had been a Sentence produced It was thereafter Alledged for the Executor that seing he instructed the Debt and that he had payed the same bona fide the same ought to be allowed for his liberation at least that the said Debt should come in pari passu with the Pursuers unless they could object against the same as not a true Debt which was Repelled in respect no Legal Diligence had been done for the said Debt Some of the Lords were of Opinion that it should have been allowed to come in pari passu In respect the Diligence used by the Pursuer in intenting a Pursute against the Executor was only Personal and did not affect the Goods and the Executry being short and the Goods being to be forthcoming to all Parties having Interest any Creditor may compear for his interest and crave to have a proportion of the same at any time before Sentence Otherways a great Creditor in alse much as may be equivalent to the Executrie if he should pursue the Executor before the other Creditors they may be all frustrate Mr. Thomas Hay Clerk D. 455. Blackwood contra Pinkill 9. June 1677. A Father having infeft his Grand-child in Fee of his Estate and his Son Father to the Fiar in Liferent with a Provision that the Liferent should be alimentary to him The Lords Upon a Debate among themselves concerning the said Qualification of the Liferent were of the Opinion that the Son being provided before to some other Lands simplie without the said Quality the Creditors of the Son might by their Diligence affect the said alimentary Liferent except so much of the same as the Lords should think fit to reserve for a competent Aliment to the Son but there was not a Decision in the Case Mr. John Hay Clerk Concluded Cause D. 456. Captain Binnie contra Gibson 20 June 1677. THE Lords Found That a Partie being pursued as representing his predecessor for payment of the Sum due by a Bond might propone a Defence of Payment notwithstanding that he had before pursued an Improbation of the said Bond In respect the Bond being ancient and not granted by himself he was in bona fide to pursue Improbation of the same and thereafter it appearing to be a true Bond he may also alledge payment giving his Oath of Calumny upon the Defence D. 457. Pringle contra Pringle of Torsonce 21. June 1677. THE Laird of Torsonce having disponed his Estate to his Eldest Son for Love and Favour with a Provision contained in the Disposition that it should be lawful to him to burden the saids Lands by Wadsets of the same Or Annualrents forth thereof for the Sum of 5000 Merks Redeemable by his Son And having thereafter granted a Bond to a Daughter of a second Marriage of 1000. merks who did pursue the Representatives of the Son for the said Sum It was Alledged for the Defender That he could not be pursued Personally but if there were any Ground of an Action it would be only for a Declarator that the Lands are lyable to the said Debt 2. That there could be no Ground of Declarator in respect the Disponer had not made use of the said Faculty nor granted a Wadset for the said Sum and that the Defunct had a personal Estate and Executry And in swa far as he had not conform to the said faculty secured the Pursuer out of the said Lands he had declared his Intention not to make use of the said faculty The Lords Found That the Pursuer ought to discuss the Executry and any other Estate belonging to the Disponer and if the said Sum could not be recovered out of the personal Estate that he might have recourse against the said Lands which was Found by the Lords upon these considerations viz. That the Right made by the Father being for Love and Favour the said Reservation ought to be interprete benigne and it was to be considered quid actum the Fathers intention being to have a Power to contract alse much Debt as might amount to the said Sum And eo ipso that he did grant the said Bond he did burden the said Lands virtually and in his own time they might have been comprysed for the said Sum and therfore may be now affected and comprysed 2. The Fathers End being to have power to burden with the said Sum the modus and way was insert ex stylo by the writer that which is mentioned in the Disposition being the most ordinary and therfore to be understood demonstrative but not taxative 3. Tho some of the Lords were of Opinion That the Pursuer may immediatly as other Creditors have recourse against the Estate yet it seemed to be reasonable that in this case the Reservation being in the Terms foresaid and the Bond whereupon the Security was founded not relating to the same the Executry should be first discust Seing by the Common Law the Executry was ever first lyable And tho by the Lords Practice Creditors may pursue either the Heir or Executor yet there being such a speciality in this case and the Defender not representing personally the Grandfather as Heir or otherways by Progress his Representatives ought to be first discust and the said Lands to be lyable only in subsidium Actores Sir George MckenÈie Mr. Robert Stewart Alteri Lockheart and Pringle Gibson Clerk In praesentia D. 458. Malloch contra The Relict of David Boid 26. June 1677. A Second Compryser having pursued a Declarator that the prior Comprysing was satisfied by Intromission and the Defender having in the Compt and Reckoning given in an Article of Debursements for prosecuting and defending of Processes concerning his Right The Lords Found That as to the extinguishing of the Comprysing upon the account of Intromission the Expences in deduceing the Comprysing and obtaining Infeftment were only to be allowed but not any other extrinsick Debursements But the Comprysing being extinct and satisfied if there were any superplus of Mails and Duties for which the Compryser was to be comptable he might retain of the first end of the same such as were profitably expended not only in Relation to his own but the Pursuers Right Newbyth Reporter D. 459. _____ contra _____ eod die THE Defender in a SpulÈie having Alledged that the Goods were his own and that having
Right as said is both before his own Right and after the same and before the interest of Creditors he did in effect ratify and homologate the same by making payment conform thereto as said is The Lords In Respect the case was of moment as to the Preparative Ordained that it should be Debated amongst themselves And upon the Debate they decided these points 1. That the said Act of Parliament K. Ja. 5th being general and there being no Exceptions of Infeftments of Relief the said Act is comprehensive of the same 2. Tho the Act of Parliament anent Registration of Seasings does secure Singular Successors yet the said Act of Parliament K. Ja. 5th is not taken away tho in in some cases the Lords are apt to favour prior Infeftments where there is no presumption of Fraud And therefore when there is any pretence of Possession as in the case of Infeftments of Warrandice they Found that fictione Juris the Possession of the principal Lands is the possession of the Warrandice 3. That albeit Mr. Patrick could not question Cramonds Right for the Reason foresaid yet the Comprysers being Singular Successors may question the same The Lords therefore preferred the Creditors And yet sustained Cramonds Infeftment In swa far as concerns the Sum foresaid due to himself and not as to Cautionries In respect the said Discharge was only of the Annualrent of the Sum due to himself This Decision appears to be hard upon these Considerations First Because Cramonds Infeftment tho base as to the point of Right by the Common Law is preferable And as to the said Statute it introduces only a praesumptio Juris that base Infeftments not cled with Possession are presumptively fraudulent And the Question whether Cramonds Infeftment was fraudulent was to be considered in relation to Mr. Patrick and his Infeftment and not to his Successors And the said presumption was taken away by Mr. Patrick his Deed foresaid having corroborate as said is Cramonds Infeftment which was verified by a Write Subscribed by Witnesses and which was was Found to militate even against the Creditors and to cloath Cramonds Infeftment with Possession 2. Cramonds Right being Jus individuum tho upon distinct Grounds it could not be fraudulent and private ex parte and ex parte publick Actores Sir John Cuninghame c. alteri Lockheart In praesentia D. 462. Mr. John Kincaid contra Gordon of Abergeldie eod die MR. John Kincaid having pursued Gordon of Abergeldie as representing his Father by Behaving His Defence was That he had Right by an expired Comprysing whereby his Father was denuded so that he could not be Heir to him But in the same Process in respect a Reduction and Declarator was intented at the said Mr. Kincaid's instance within ten Years after the appearand Heir had purchased a Right to the said Comprysing The Lords tho there were no Order used did simul semel sustain the said Processes and appointed Compt and Reckoning and Auditors FINIS ERRATA in the Decisions PAge 4. lin 15. read rata p. 9. l. pâ—nult Pursuer 1 Person p. 15. l. 29. Laird of r. Lord. p. 17. l. 17. after him add but. ibid. l 26. after of add â— p 33 l 7. after Goods add The Reason was found relevant p. 35. l 21. r. conclude p. 37. l. 5. have 1. give p. 50 l. 9. after we add no. p. 51. l. 38. most r. more p. 54. l. 9. after anterior add to the Sones Right p. 58. l. 35. after Right add till p. 65. l. 11. purchase 1. possession p. 73. l. ult yet 1. so p. 74. l. 37. after to add an p. 75 l. 35. D ctor 1. Granter p. 84. l. 22 after confirmable add Quots of Testaments confirmed before the Act restoring Quots to the Bishops p. 85. l. 18. due r. done p. â—9 l. 18. after by add Writt or p. 105. l. 11. Donator r. Executor p. 108. l. 27. â—eu-duties r. Augmentations p. 111. l. 43. after Creditor add confirmed before the Act of Sederunt p. 17â— l. antep after flagitanti add â—eculaâ—e non potuit INDEX OF THE Pursuers and Defenders NAMES Mentioned in the foregoing Decisions A. ABercrombie contra Page 19. Abercrombie contra Atcheson and Livington Page 162. Aberdeen Colledge contra the Town thereof Page 130 133. Aberdeen Colledge contra Page 157. Abernethie contra Forbes Page 159. Act of Sederunt anent proponing Alledgances Page 74. Act of Sederunt anent liberation of Prisoners Page 114. Act of Sederunt anent Advocations Page 126. Advocats their â—â—int Petition Page 106. Aetskine contra Rynolds Page 164. Allan contra Campbel Page 28. Anderson contra Tarbet Page 56. Anderson contra Lowâ—s Page 149 160. Antrobus contra Anderson Page 32. Ardblair contra Wilson Page 214. Argyle Earl contra L Mcdonald Page 197. Argyle contra Menaughtan Page 203 213. Armstoun Lord contra Murray Page 153. Auchinleck contra E Menteath Page 127. Auchintoul contra Innes Page 88 B. BAillie contra Somervel Page 210. Bairdner contra Collier Page 142. Balmedie contra Baillies of Abernethie Page 54. Balmerinoch contra Tennents of Northbervick Page 90. Banchries Parochiners contra their Minister Page 124. Barclay contra Arbuthnet Page 151. Bavilay contra Dalmahoy Page 210. Bayne contra Carvie Page 71. Bernie contra Page 57. Bernie contra Montgomerie Page 137. Binnie contra Binnie Page 56. Binnie contra Sâ—ot Page 115. Binnie contra Brotherstones Page 124. Binnie contra Gibson P. 221. Binnie contra Farquhar P. 19. Bishop of Edinburgh his Executors contra the present Bishop P. 83. Bishop of Dumblain contra Kinloch P. 185. Bislet contra Broun P. 10. Blackwood contra Pinkill P. 221. Blair contra Blair P. 67. Blair contra Kinloch P. 151. Blair contra Fouler P. 182. Blantyre contra Walkingshaw P. 6. contra Blantyre P. 14. Bogie contra Executors of the Lady Oxford P. 73. Boid contra Storie P. 76. Bonars Relict contra his Representatives P. 141. Borthwick Lord contra Ker. P. 15. Borthwick Doctor contra E. Craufurd P. 161. Bowie contra Hamilton P. 18. Broun contra Veatch and Scot. P. 7. Broun contra Ogilvie P. 116. Bruce contra Bruce P. 132. Bryand contra Grhame P. 6. Buâ—hanan contra Logie P. 181. Burd contra Reid P. 118. Burgie Lady contra Strachan P. 39. Burnet contra Leyes P. 3. Burnet contra Johnston P. 9. Burnet contra Lutgrue P. 115. Burnet contra McCleilan P. 117. Burnet contra Swan P. 166. Burnet contra Gib P. 169. Bute Lady contra Sheriff thereof P. 7. C. CAmphel contra Tait P. 220. Carfrae contra TailÈiefer P. 104. Carnegie contra Durham P. 200. Carse contra Carse P. 17. Cassils contra Whiteford P. 24. Chalmers contra Ferquharson and Gordon P. 105. Cheap contra Philp P. 34. Cheyne contra Chrystie P. 19. Cheislie contra Edgar P. 181. Clerk contra Stewart P. 139 Colarnic Lady contra Tennents P. 112. Collector of the Taxations contra the Parson of Auldhamstocks P. 49. Colvil contra Feuars of Culross P. 28. Commissars
Vectigalium Ibidem CONFESSION presumptive of a person holden as confessed d. 217. CONFIDENT persons getting Dispositions from Debitors may at the Debitors desire satisfie such Creditors as they shall think fit d. 174. CONFIRMATION necessary in Scotland of goods there belonging to Strangers elsewhere d. 21. CONJUNCT probation of the value of Lands d. 431. CONQUEST see d. 9. d. 359. Conquest found probable by the Debitor and Witnesses in the Bond. d. 68. CONSIGNATION in Improbations d. 278. CONSVETVDO Loci d. 390. CONTINGENTIA Causae non debet dividi see d. 288. A CONTRACT Subsequent to a Wadset whereby the Back-tack dueties are accumulated and made a princial Sum and that there should be no Redemption till these were Satisfied not regarded in respect the said Contract was not Registrate in the Register of Reversions d. 27. Contracts of Marriage see d. 9. d. 123. d. 161. d. 169. d. 172. d. 185. d. 195. d. 364. CORREI debendi see d. 231. COUNTERBAND Goods d. 132. d. 153. CREDITORS on the account of Funerals and Druggs d. 206. When Creditors do appear in Adjudications not called they ought to be admitted with that quality that the Adjudger shall be in the same case as to any Adjudication at their Instance as if both Adjudgers were within Year and Day d. 324. CURATOR d. 363. d. 435. see d. 88. d. 316. Curator non datur personae sed rebus so that the Minors person is not in potestate d. 321. Curators Subscriveing only to Writs and not the Minors d. 216. D. DAMNAGE by Ruinous Houses sustained without necessity to say that the Defender was required to repaire his House d. 66. DATE see d. 179. DEATH-BED Vide in Lecto Litera L. DEBITOR non praesumitur donare how to be interpret d. 333. DEBITVM Fundi d. 274. d. 372. DECIMAE inclusae not Lyable to the Augmentation of Ministers Stipends d. 229. DEEDS in Lecto see in Lecto Lit. L. DECLARATOR of Redemption d. 276. A Declarator that Childrens Provisions being granted after Contracting of the Debt should be Lyable to the Creditors and their Diligence sustained without Reduction d. 344. Declarator general of Non-entry being intented the hail Duties are due d. 28. Declarator of the Nullity of a Minute d. 118. DECLINATOR of Judges d. 303. DECREET see d. 98. d. 203. A Decreet against a person holden as confest craved to be declared Null d. 232 Decreets in foro d. 361. see d. 225. d. 370. Decreets of Inferior Judges see d. 445. DEFENCE after Litiscontestation d. 246. In DELICTS by SpuilÈie and wrongous Intromission Decreets against persons are construed to be in solidum d. 247. DELIVERY of Writts d. 150. d. 272. d. 442. see d. 106. d. 129. Dementia See d. 76. DENOUNCIATION of Lands see d. 328. DEPENDENCE see d. 36. DEPOSITIONS of Witnesses in one Process craved to be repeated in another d. 219. Depositions of Witnesses to ly in Retentis d. 236. DESIGNATION of Lands for a Gleib and relief thereof conform to the Act of Parliament from the rest of the Heritors but Annualrent found not due from the time of the Designation d. 352. DISCHARGES granted by a Master to Tennents without Witnesses d. 189. A DISPONER may qualify his Right and in special if the person be a Pupil that such as are named in the Disposition should Administrate d. 316. A Disposition made after Inhibition but before the Registration of the same may be reduced ex capite Inhibitionis d. 254. DISCUSSING of Heirs see d. 69. DONATIO inter virum Vxorem d. 204. d. 426. d. 362. DONATOR see d. 14. d. 249. d. 389. d. 411. A Donator of ultimus Haeres d. 38. The Donator a quo tempore has he Right to the full Rents d. 273. E EDICT of Executry d. 433. EJECTION sustained at the Masters instance tho the Tennent did not concurr but not quoad omnes effectus d. 19. Ejection sustained at the Wifes instance where the Husband is absent d. 105. ERROR and mistake d. 338. ESCAPE of Prisoners d. 299. d. 301. d. 306. ESCHEAT see d. 14. d. 59. d. 75. d. 162. d. 205. d. 331. d. 409. d. 411. Escheat passes cum sua causa d. 177. EXAMINATION of Witnesses in an Improbation d. 42. EXCEPTIO Falsi proponed peremptorie d. 126. Exceptions quo casu they affirm the Lybel see d. 199. d. 223. EXCHANGE see d. 231. EXECUTOR d. 62. d. 182. d. 454 d. 412. see d. 181. d. 187. d. 205. d. 224. An Executor has not an absolute property in the Goods confirmed but only qualified and for Administration d. 302. Executor Creditor see d. 389. Executor Creditor Lyable to doe Diligence d. 35. Executors giving Oath upon the Inventar d. 97. EXERCITORES navis Lyable in solidum d. 166. EXHIBITION sustained of Writts intrometted with by the Defender albeit not proven that he had them at or since the intenting of the Cause he having medled with them in the Charter-chest whereby fraud is presumed d. 114. Exhibition ad deliberandum d. 49. d. 258. EXPENCES see d. 281. d. 458. Expences of Executors upon pursueing of Processes doe affect Legators d. 181. Anent EXTRACTING of Decreets and when res est integra as to the proponing of New Defences d. 203. F. FACULTY reserved in a Disposition to burden with a Sum. d. 457. Faculty reserved out of the Right of Fee to burden the same with a Sum of Money d. 418. Causa FALSI see d. 196. d. 385. FEES of Commissioners to the Parliament d. 188. FEUARS see d. 190. FEU-DUTY see d. 92. d. 229. FIAR see d 95 d 136 d 144 d 213 d 350 d 418. FINES see d 311. FRAUDULENT Rights d. 48. d. 156. Fraudulent Rights contrare to the Act of Parliament 1621. d. 198. FUNERALS see d. 206. FORTHCOMING see d. 110. Forthcoming in effect Execution and equivalent to a poinding d. 53. G. GESTIO pro haerede d. 151. see d. 119. Gestio pro haerede by Intromission with Rents not sustained where there is a Title d. 67. Gestio pro Haerede elided by the Behavers having got a Gift of the Defuncts Escheat ante motam litem d. 331. Gestio pro Haerede inferred by the Appearand Heirs consent to expired Comprysings d. 63. GIFT of Ward in favours of the Vassal himself accresces to the Subvassal d. 392 Gifts of Escheat d 409 see d 187 d 224. d 249. Gifts of Escheat and Backbonds d 162 Gifts of Escheat when presumed simulate d 411. GLEIB see d 93. d 352. GOODS Disponed stante rebellione fall under Escheat d. 75. GOVERNOURS going Abroad with Youngmen their case as to their Intromission d. 421. GRANA crescentia see d 293. GRASS due to Ministers d 256. H. HABIT of Bankrupts d. 282. HEIR see d 69 d 85 d 169 d 172 d. 214 d 353 d 400 d 416 d 450. Heir of Line see d 107 d 295. If an Heir of Provision may be pursued where the Heir of Line has renounced but not yet discussed by Adjudication d
RETENTIS see d. 74. REVERSION see d. 27. d. 276. d. 417. If Reversions limited to a time do prescrive against Wives cled with Husband d. 297. ROYAL Burghs and Burghs of Barony their Liberties d. 395. RUINOUS Houses see d. 66. S. SASINE see d. 22. d. 345. Sasine by a Husband to his Wife propriis manibus d. 125. A Sasine within Burgh not booked d. 348. SERVICE of Heirs d. 416. see d. 323. SERVITUDE see d. 87. d. 312. A Servitude of a Divot in a Moor found not to hinder an Heritor to Labour and improve the same there being so much thereof set apart as would satisfy the end of the Servitude d. 86. SESSION-Books do not prove the Age of a Party to infer Reduction ex capite Minoritatis d. 72. SINGLE avail of Marriage d. 202. SOCII see d. 8. SOLENNES Induciae see d. 167. In SOLVTVM data d. 200. A SONE subscribing as Witness to the Fathers Provision of the rest of the Children on Death-bed hinders Reduction ex capite lecti d. 40. A SPECIAL service in an Annualrent does give Right to Heretable Bonds and all other Heretable Estate whereupon Infeftment did not follow d. 323. Post SPONSALIA Banna a Woman not sui Juris and can do no deed in prejudice of her self or of her future Husband without his consent d. 13. If SPONSIONES ludicrae anent Marrying ought to be allowed d. 327. SPULZIE d. 447. d. 459. see d. 322. SpulÈie being restricted to wrongous Intromission the Defenders are not lyable in solidum but conjunctly d. 137. STENTS imposed by Burghs upon their Feuers d. 190. STIPENDS see d. 229. d. 325. d. 398. STRANGERS see d. 21. d. 239. SUBSCRIPTION in subsidium see d. 81. SUBSIDIARY Action against the user of false Writs d 460. SUBSTITUTION see d. 213. A SUBVASSAL being Infeft by a Baron cum curiâ—s Bloodwitis may hold Courts and unlaw for Blood d. 5. Subvassals being in possession ought to be called in an Improbation against the Vassal their Author d. 145. If a SUCCESSOR in a Benefice be Lyable for his Predecessors Taxation d. 115. Successor Titulo Lucrativo d. 130. d. 184 d. 377. A SUM expresly provided by a Clause in a Disposition and Infeftment to be payed by the Receiver of the Disposition otherwayes his Right to be void such a Clause found Real d. 41. Sums may be Moveable tho secured by Heretable Rights d. 342. SUPERVENIENT Title d. 389. SUSPECT Tutor see d. 90. T. TACITE Hypotheque d. 420 TACK see d. 145. Tack of Teinds d. 289. A Tack not cled with possession and conferred in tempus indebitum d. 346. A Tack razed in the date d. 179. A Tack set by a Minister for more than three years without consent of the Patron how sustained d. 25. Tacks after Redemption d 358. Tacks and in what case remittitur Merces d 220. TACKSMEN of Lands within Burgh d 429. TAILZIES d 257 d 266. TAVERNERS are presumed to Compt Weekly with their Masters d 340. TAXATION see d 115 d 241. Taxation not augmented upon the account of the Collectors Charges d 65. TEINDS d 148 d 355. see d 289 d 388. Teinds belong to the Minister Jure Repraesentationis albeit the Kirk be a Member of a Collegiate Church and the Minister not prebend d 112. TENENDAS see d 149. TENNENTS see d 189. TENOR and prouing therof see d 77 d 185 d 304. If the Tenor of Comprysings may be prouen d 24. TENTVS reputatus see d 381 d 382. TERCE d 141 d 234. TESTAMENT see d 76 d 103 d 375 d 159 d 194 d 197. Testament sufficiently executed by a Decreet tho no payment be made thereupon d 49. TESTIMONIES of Witnesses see d 361. TESTIS Domesticus d 390. In Testium conflictu major pars praevalet d 109. THIRLAGE d 312 see d 293 d 351. Thirlage constitute by reservation of Multures as to these who consent to the reservation albeit no preceeding Thirlage d 58. TRANSFERRENE d 52 d 337. Transferring in a Reduction d 7. TRIAL at the Admission of the Lords of Session d 180. TRUST see d 186 d 193. TRUSTEES see d 174. Trustees when they denude are to be relieved of all hazard upon account of the Trust d 43. TVTELAE Actio see d. 314. TUTOR and Pupil d. 242. d. 376. see d. 336. A Tutor being pursued to remove as suspect there being Debts betwixt him and the Pupil another friend appointed by the Lords to be joined to him d. 90. A Tutor craving by a Bill that he might set his Pupils Lands for lesser Duties refused d. 277. Tutors Lyable only for the time they accept and not after they knew they were named d. 233. V. VACANT Stipends d. 325. Non VALENS agere see d. 297. VASSAL see d. 145. VASTATION by War Found to give Conductores Vectigalium a proportional abatement albeit it be Conductio rei dubiae d. 108. VICCARAGE d. 388. see d. 148. VICTUAL see d. 267. VITIOUS Intromission d. 187. d. 205. d. 354. U. ULTIMUS Haeres see d. 38. UNFREEMEN see d. 79. USURARY Bond. see d. 56. W. WADSET d. 436. see d. 27. d. 96. d. 134. d. 268. d. 330. d. 439. A Wadset bearing only for security and until the Wadsetter should be satisfied by Intromission Found to be an improper Wadset tho without a Backtack d. 57 WADSETTERS must count for the excrescence of the duties d. 176. WAIRD Lands being disponed by a Father with obligement for two Infeftments The Son must compleat the said Right by Entreing and Infefting the Partie Reserving to him Action for Relief of his Ward and Marriage as accords d. 82. WARRANDICE see d 15. d. 93. WARRANDICE from Astriction d 173. The WARRANDICE of a Disposition of a Comprising found in dubio to warrand the Validity of the Compryseing and the Reality of the Debt but not to refound the pryce in case of Eviction d. 44. WARRANDICE of Lands is absolute unless expressly limited But Warrandice in Assignations of Bonds is only debitorem esse but non esse locupletem d. 248. WEARING the Habite d. 252. WIFE see d. 6. d 10. d. 71. d. 85. d. 100. d. 105. d. 125 d. 141. d. 143. d. 144. d. 182. d. 204. d. 257. d. 264. d. 297. d. 315. d. 332. d. 353. d. 371. A Wife consenting to a Disposition of Lands made by her Husband is not hindred to evict the same she acquireing thereafter a Right from another Person d. 128. A Wife haveing a peculium settled upon her exclusive of her Husbands Intrest therein found lyable for a Bond granted by her d. 164. The Wife is praeposita negotiis domesticis for Provision of the House d 310 A Wife Trafiqueing as a Merchand the Husband is lyable for Debts Contracted by her on the account of that Trafique actione Institoria d. 319. A WIFES obligement stante matrimonio d. 84. Wives and conjunct persons ought to abide by Writs Simpliciter d. 265. Wives Infeftments upon their Contracts of Marriage sustained albeit Base in respect of the Husbands possession d. 161. WITNESSES d. 441. see d. 42. d. 109. d. 219. d. 236. d. 317. d. 383. d. 419. d. 427. d. 428. d. 432. Witnesses before Answer d. 171. Witnesses depositions how received before Litiscontestation to ly in Retentis d. 74. Witnesses in a Bond not being designed It 's allowed to the person to designe them one of the Witnesses being yet on lyfe d. 12. WRITERS name may be condescended upon after the Writer and Witnesses are Dead And in what case and Terms d. 343. Writers to the Signet discharged to alter the solennes Jnduciae in Bills and Summonds except in such as are priviledged by the Law d. 167. FINIS
removed and a solid course taken for obviating the like Abuses thereafter that places be not venal but proposed and disposed as rewards of Vertue to able and deserving Men 3tio The Exorbitancy of Fees and Quotts may be Regulated by taking course anent the presentation to settled places that honest and ingenious Men be presented that a Competency of settled and constant Fees be alotted to encourage honest and able Men to pretend to these places and to enable themselves for them and that they may live creditably and honestly in them and Quotts may be abridged and it may be provided that small Testaments may be free of Quot And the Quots of great Testaments may be limited not to exceed a certain Sum which the Estates shall think reasonable to be the highest Quot The Quot Silver which shall be thought fit to be taken may be employed the Commissaries being satisfied of their Fees to pious uses Consolidation A Person having Right by Assignation to a comprysing of Lands holden of himself whether eo ipso that he has the foresaid Right will the Property consolidate with the Superiority Seing a Comprysing is equivalent to a Disposition and Resignation thereupon And the Superior having Right by an Assignation to a Disposition whereupon there is Resignation and to the said Resignation It seems that in that case there is Consolidation In respect the Superior upon such an Assignation in favours of a Stranger will be obliged to Infeft him And because he cannot Infeft himself the Law doth introduce Consolidation Ratio Dubitandi is That Consolidation is upon the matter a Seasin of the Property And a Seasin being facti cannot be without some deed of the Person in whose favours the Consolidation is to be made Declaring that he accepts a Right to the effect foresaid If it be not fit in such cases that the Superior should before a Notar and Witnesses Declare that seing he has both a Right to the Property and Superiority in his Person It is his will and intention that the Property should be consolidate with the Superiority And that an Instrument upon his Declaration foresaid should be equivalent as if the Compryser had been Infeft and had resigned ad Remanentiam And if such an Instrument should not be Registrate as an Instrument of Resignation ad Remanentiam When a Person Infeft in the Property of Lands acquires and is Infeft in the Superiority Quaeritur If eo ipso there be a Consolidation of both Rights Item if the Superior succeed as Heir to the Right of the Property Quaeritur If in that case there be a Consolidation so that Dominium directum trahit ad se utile Seing the Superior could not Infeft himself and by his purchasing of the Property he enters to the Right thereof and so the Property is consolidate fictione juris in the same manner as if he had been Infeft If vice versâ The Proprietar acquire the Superiority If eo casu there be a Consolidation of both Rights Answer It is thought not And that Dominium utile cannot draw to it directum without Infeftment by the Superior of the Dominium directum If a Person being Infeft by his Father upon a Right granted to him and his Heirs whatsomever to be holden of the Disponer be thereafter Infeft as Heir to his Father in the Superiority of the said Lands which belonged to his Father and his Heirs Male Quaeritur Whether there will be a Confusion and Consolidation of the Property and Superiority It is Answered During his Lifetime there will be a kind of Consolidation seeing he cannot be Superiour to himself But it will cease by his Death so that the Superiority will belong to his Heirs Male and the Property to his Heirs whatsomever If he intends that there should be a Consolidation what course is to be taken to that purpose Answer If as in the case foresaid he was Infeft first in the Property and then in the Superiority he must dispone the Property to a Confident And the Confident being Infeft must resign ad Remanentiam to the effect the Property may be consolidate with the Superiority to him and his Heirs Male and their Successors If a Superior should succeed in the right of the Property Quaeritur If there be a confusion of both Rights in his Person Answer It is thought though they may appear to be a Consolidation dureing his Lifetime they are nevertheless distinct Seing the right of the Superiority may be to Heirs Male and the Property to Heirs whatsomever And the said Heirs may succeed Respectivè If the said Superiour being Infeft in the Right of the Superiority succeed thereafter in the Right of the Property what way shall he be Infeft therein seing he cannot Infeft himself Answer It is thought that it is not inconsistent that the Superior may give Precept to give Seasin to an Actorney in his name and for his use If the said Superior intend that the Property should be consolidate with the Superiority what way shall it be done Answer He may direct the said Precept in these Terms for Infefting him And seing he has both Rights in his Person and intends that the Property should be consolidate with the Superiority The Precept may be in these Terms to give Seasin to the effect the Property may be consolidate with the Superiority To be holden both of his Superior in all time coming in the same manner as if they had never been severed If a Precept may not be obtained in subsidium out of the Chancery for Infefting the said Person in the property to be holden of himself seing he cannot Infeft himself Answer It is thought that a course may be taken upon a Bill to the Lords ordaining the Director to the Chancery to direct a Precept upon the reason foresaid Decreets contra Consortes A Decreet of Reduction Ex capite interdictionis being obtained in foro and the Wife being Liferentrix craving to be reponed because Competent and omitted could not be alledged against her being sub potestate Mariti Quaeritur If she prevail may the Husband crave the benefite of her Decreet Ratio Dubitandi Upon pretence that it is found that the Decreet against him was unjust upon the matter And it cannot be just as to her and unjust as to him This Question may occur in many cases As that of two Heirs portioners one being Major and another Minor And after the Decreet against both The Minor being Reponed and prevailing And of a Decreet against a principal having proponed a Defence of payment and having succumbed in probation And thereafter the Cautioner being pursued and upon probation of the same Defence being Assoilied Corporations QVid juris as to Crafts and other Incorporations and as to Bishops and other single Incorporations if in any case they may oblige themselves and their successors Creditors of the Defunct IF the Creditors of the Defunct being Minors will be preferred to the Creditors of the Heir though they do
for the ordinary mails and duties of the Land Though some were of the opinion that before Sentence the Vassal should only be lyable for the retoured dutie D. 29. Wilkie contra eod die SIr John VVilkie of Foulden having intented a Reduction of a voluntar Interdiction made by him to some of his friends The Lords appointed some of their number to conferr with him and upon their Report that he was rational and intelligent and for any thing appeared by his discourse and deportment Rei suae providus The Lords Reduced in absence there being no compearance or opposition for the Interdicters D. 30. The Lyon contra 26 July 1666. BY the Act of Parliament Ja. 6. Parl. 11. cap 46. It is ordained that Officers of Arms should find suretie to the Lyon for observation of their Injunctions under the pain of 500. Merks with the damnage and interest of the party greived by the malversation negligence or informality of the Officer In a process betwixt the Lyon and _____ It was controverted whether the Cautioner might be pursued before the Lyon for payment of the Debt as damnage and interest by reason of the malversation of the Officer of Arms in a poynding It was alledged that the Lyon was a criminal Judge and most competent as to the Question whether the Messenger had committed iniquity and malversed in his Office and whether he should be deprived and he and his Cautioner had incurred and should be lyable to the pain aforesaid But as to the civil action against the Cautioner there might be a good ground of action against the Cautioner upon the act of caution before the competent Judge But the Lyon being Judex pedaneus was not Judge of actions of that nature and consequence In respect they may be of great difficulty and importance For if the Cautioner should be pursued for payment of the Debt being supposed to be 1000 merks upon pretence of the malversation of the Officer and that he had not done his dutie in poynding and comprysing It were hard and dangerous that the Lyon and his Bretheren should be Judges in a matter of that consequence And it will not follow that because the Messenger had not done his dutie in a Caption or comprysing that his Cautioner should be lyable for the Debt as damnage and interest Seing the Caption and Comprysing might have been ineffectual and the Creditor could not thereby have gotten payment And it appears by the said Act of Parliament that the Lyon is only Judge to the penal Conclusion of deprivation of the Officer and payment of the pain The Lords notwithstanding Found the Lyon Judge competent to the action against the Cautioner for damnage and interest Me inter minimos reclamante Gibson Clerk Newbyth Reporter D. 31. McKenzie contra Fairholm eod die THe Lords Found in the case before mentioned 24. July MckenÈie contra Fairholme That a Father is loco Curatoris to his Son being in familia and that a bond granted by the Son without his consent is null ipso jure as if it had been granted by a Minor having Curators without their consent D. 32. Wedderburn contra Scrimzeour ead die IN the case Scrimzeour and VVedderburn of Kingennie mentioned before 18. July A legacy being to be effectualin that case only If the Testators Wife should not be brought to bed of a Man Child It was Found that a Male Child should be understood a living Child and that Homo Mortuus and a dead Child is nullus in Law And that the legacy should be effectual though she had been brought to bed of a Male Child but dead D. 33. Menzeis contra Burnets eod die IN the case MenÈies contra Burnets It was Found that a Relict being provided to a Liferent of all the Goods belonging to her Husband ought to sell and make Money of the Horse Oxen and such Goods as may perish to the effect she may Liferent the Money and make the Sum forth-coming after her decease but cum temperamento That a competent time should be allowed to that effect And if the Goods should perish in the mean time she should not be lyable for the same In that same case it was Found that a Relict should not have both a Liferent and Third but should have her choice or option of either Some of us were of the opinion that seing it appeared by the Contract that the Goods were not to be in Communion but that she was to have a Liferent of the same she had not a choice to have a Third or Liferent Hay Clerk Lord Lie Reporter D. 34. contra Blantire 27 July 1666. _____ Having intented a Reduction of an Interdiction upon that reason that Blantyre was rei suae providus And that the Pursuer had lent him the Money due to him when he was in England and in necessity and being a stranger and a Creditor he ought not to be prejudged by such a voluntar Interdiction being upon a Bond granted by the Debitor without a previous Sentence finding Blantyre to be prodigus or such a person as should be interdicted The Lords Thought The Case of that Consequence that they would not decide upon a Report but Ordained it to be debated in praesentia Lord Castlehill Reporter D. 35. contra eod die IT was decided That an Executor Creditor was lyable to do diligence as other Executors and tho there was a difference betwixt him and other Executors upon that account that he was confirmed in order to his own interest and to the effect he might be payed of his Debt and had preference before other Creditors yet as to the Duty and Office of ane Executor there was no Difference And having accepted the Office which was Voluntatis it became Necessitatis and he was obliged to Execute it Reidie Reporter D. 36. L. Borthwick contra Ker. eod die AN Inhibition being raised upon the dependence of a pursuit for maills and duties for three years preceeding the Summonds and in time coming during the defenders possession It was Thought that the inhibition relateing only to the Summonds as to the three years preceeding without mention of the subsequent years could not be a ground of Reduction Ex capite Inhibitionis in respect the defender in that pursuite was assoiled as to the years before the Summonds as being bona fide Possessor And albeit the Summonds was not only for these years but for the time to come as said is and the Defender was decerned to pay maills and duties for certain years after the Summonds yet the Leidges were not obliged to take notice of the Summonds but as it was related in the Inhibition The Lords were of this opinion But the case was not decided the Pursuer having desired up his process that he might be better advised Advocat Oliphant and Sir Robert Sinclair D. 37. E. Newburgh contra Stuart eod die SIr William Stuart being Creditor to the Earl of Newburgh in a great Sum upon an Infeftment in the said Earls