Denunced for then by the Horning his Escheat would fall but there is no Law nor Statute making the Penalty of Adultery to be the Adulterers Escheat for Queen Maries Statute anent Adultery is only making nottour Adultery Capital but nothing as to other Adulteries The Pursuer answered that Custome had made the Penalty of Adultery to be the single Escheat and for Probation of the Adultery in this case the Defender had publickly confessed it and had stood in Sack-cloth for it a year and had taken Remission from the King The Defender answered that Confession in the Kirk was necessary to purge Scandel when such Probation was Adduced as Church-men allowed to infer Confession which is but extra judicialis confessio and cannot prove ad â—viles aut criminales effectus neither can the taking of the Kings Remission instruct these Crimes seeing Remissions are frequently taken to prevent accusations or trouble The Lords found the Libel not Relevant and that no Declarator could passe unless the Defender had compeared judicially in a Criminal Court and there Confessed or had been Condemned by Probation but that the Confession in the Church or taking Remission was no sufficient Probation Andrew Barclay contra Laird of Craigivar Ianuary 10. 1662. ANdrew Barclay Pursues the Lairds of Craigivar as representing his Father upon all the passive Titles to pay a Bond due by his Father and insists against him as behaving himself as Heir by intromission with the Mails and Duties of the Lands of Craigivar and Fâ—ntrie The Defender alleadged Absolvitor because if any Intromission he had not granting the same it was by vertue of a singular Title viz. an Appryzing led against himself upon a Bond due by his Father The Pursuer answered non relevat unless the legal had been expired for if the appearand Heir Inâ—romet within the Legall during which the right of Reversion is unextinct immiscuit se haereditati and it is gestio pro haerede The Lords found the Defense Relevant albeit the Appryzing was not expired unless the Pursuer alleadge that the Defenders Intromission was more then satisfied the whole Appryzing Laird of Rentoun contra Mr. Mark Ker. Eodem die THe Laird of Rentoun having obtained Decreet against Mr. Mark Ker for the Teinds of Ferniside he Suspends on this Reason that he ought to have retention of the Annuity of the Teind which he had payed and whereto he had Right The Charger answered that there was no Annuity due out of their Teinds because he was Infeft cum decimis inclusis which are not lyable for Annuity The Suspender Answered that there was no exception in the Act of Parliament 1623. of Teinds included The Lords Recommended the matter to be settled this being a leading Case in relation to the Annuity of Teinds included but they thought that Annuity was not due of Teiâ—ds included because such Lands never having had the Teinds drawn there is nothing to Constitute Teind due for them either by Law Paction or Possession and so where no Teind is there can be no Annuity And also because the Ground granting Annuity to the King was because the King having an Interest in the Teinds after the Reformation and the Titulars pretending also Right did surrender the same in the Kings favours and submitted to Him who Confirmed the Titulars questionable Rights and gave the Heretors the benefite of drawing their own Teinds upon a Valuation and therefore the Annuity was appointed to be payed out of the Teinds to the King but the surrender did not bear Teinds included Lord Carnagie contra Ianuary 11. 1662. LAdy Anna Hamiltoun eldest Daughter to the Deceast William Dâ—ke of Hamiltoun having obtained Charter of the Lands of innerw â—ik from the King as becoming in his hand by Recognition in so far as the Lands being holden Ward the late Earl of Dirletoun Disponed the same to Iames Cicil second Son to his second Daughter whereupon the said Lady Anna and Lord Carnagie her Husband for his Interest Pursues Declarator of Recognition against the said Iames Ciâ—il and against Iames Maxwels Heirs of Line and Heir-Male to hear and see them Secluded for ever and that the Lands were fallen in to the Kings hands and belonged to the Pursuer as his Donatar by Recognition through the Ward-vassals alienation thereof without the consent of the King as Superiour The Defender alleadged no Processes because all Parties having Interest are not called viz. Sir Robert Fleâ—cher who stands publickly Infeft in the Lands Libelled The Lords Repelled the Alleadgence as super juretertii in respect it was not proponed by Sir Robert aâ—d that his Right could not be prejudged by any Sentence whereto he was not called Secondly The Defenders alleadged no Process because the Heirs of Line are not lawfully Called in so far as three of them are Resident in the Abbey and are Minors and their Tutors and Curators are only called at the Mercat Cross of Edinburgh whereas they Reside within the Regality of Brughtoun and their Curators should have been Cited at the Cross of the Canongate as head Burgh of that Regality The Pursuâ—rs answered that the Defenders Reside in the Kings Palace which is exempt from all Regalities and must be a part of the Royalty being the Kings own House by his Royal Regative The Lords Repelled the Defense in respect of the Reply and found the Kings House to be Royalty and so in the Shire and not in the Regality Iohn Nicolson contra Feuars of Tillicutry Ianuary 14. 1662. JOhn Nicolson as Baron of the Barony of Tillicutry and Miln thereof pursues the Feuars of Tillicutry for a certain quantity of Serjant Corns and for their abstracted Multures for which he had obtained Decreet in his Barony-court which was Suspended The Defenders alleadged that his Decreet is null as being in vacant time Secondly As being by the Baron who is not Competent to Decern in Multures or Thirlage against his Vassals Thirdly The Decreet was without Probation The Baron neither producing Title nor proving long Possession and as to the Serjant Corn nothing could Constitute that Servitude but Writ The Charger answered that Barons needs no Dispensation in Vacance and that Baron Courts use to sit in all times even of Vacance by their Constant Priviledge And that the Baron is Competent Judge to Multures or any other Duty whereof he is in Possession And as to the Serjant Corn in satisfaction of his Decreet he hath produced his Infeftment as Baron of the Barony which gives him Right of Jurisdiction and so to have Serjants whose Fees may be Constitute and liquidat by long Possession The Lords found the Reply Relevant the Charger having 40. years possession as to the Multures and the Pursuer declared he insisted not for the Kings Feu-duties in kind but for the Teind Seed and Horse Corn. The Defenders alleadged Absolvitor for as much of the Corns as would pay the Feu-duties Ministers Stipends and all publick Burdens because they behoved to sell Corns for
a price the price would not belong to the Executor or Fisk but to the Heir any sums due for Damnage and Interest not performing a Disposition or upon Eviction belongs to the Heir not to the Executor The Defender answered that this sum is not in the case of any of the former alleadgences neither is the question here what would belong to the Executor but what would belong to the Fisk for Moveable Heirship belongs to the Heir and not to the Executor and yet belongs to the Fisk so do sums without Destination of Annualrents wherein Executors are secluded So also doth the price of Lands when they are de presenti sold by the Defunct The Lords found this sum moveable and belonged to the Fisk and therefore Assoilzied the Defender from that Member also Mr. Ninian Hill contra Maxwel February 5. 1663. MR. Ninian Hill pursues Maxwel as heir to his Father Iohn Maxwel for payment of a sum due to be payed to Maxwels Relict yearly after his death and assigned to the pursuer The Defender alleadged absolvitor because the Pursuers Cedent being Executor her self to the Defunct was lyable for this sum intus habuit It was answered for the Pursuer that this being an annual payment after the Defuncts death it was proper for his heir to pay the same not for his Executor and if the Executor had payed it he would get releif off the heir Which the Lords found Relevant Grahame contra Ross Eodem die THe Parties having Competed upon Appryzings being decided the 24. of Ianuary Wherein the Lords found that none of the Appryzers should come in with him who was first Infeft till first they payed their proportional part of the Composition and Expenses now having considered again the Tenor of the Act of Parliament they found that they behoved to satisfie the whole and that the obtainer of the first Infeftment should bear no share of it that being all the other Appryzers gave â—to got the benefit of the Act to come in pari passu Lenox contra Lintoun Eodem die LEnox being Married to Margaret Mcgie who was an Heretrix she dying Lenox Son was Infeft as Heir to her who dying also without Issue this Lenox as his Brother by his Mother and alleadging him to be appearing Heir to his Brother Lenox in these Lands whereunto his Brother succeeded to their Mother craves Exhibitions of the Writs of the Lands ad deliberandum The Defender Lintoun alleadged absolvitor because his Son being Infeft in the Lands as Heir to his Mother his nearest Agnat on the Fathers side his apparent Heir and â—one on his Mothers side for we have no intrin succession neither holds it with us materni maternis paterni paternis Which the Lords found Relevant and that the Father was apparant Heir to his Son being once Infeft as Heir to the Mother and therefore Assoilzied Lady Carnagy contra Lord Cranburn Eodem die THis day afternoon the Lords Advised the rest of the Defenses proponed for the Lord Cranburn in the Recognition pursued at the Instance of my Lady Carnagy who alleadged first that Recognition was only competent in proper Ward-holdings and not in blench Feu or Burgage these only being feuda recta militaria and all others but fendastra But the Lands of Innerweek are not a proper Military Feu holding Ward being only a Taxed Ward wherein the word Duties is Taxed yearly and the Marriage is Taxed to so much and so is in the nature of a Feu neither was it ever yet found in Scotland that a Taxt-ward did fall in Recognition The pursuer answered that the Defense is not Relevant to rule in our Law being that alienation of Ward-lands without the consent of the Superiour infers Recognition and neither Law nor Custom hath made exception of Taxt-wards which have but lately occurred in the time of King Iames who and King Charles were most sparing to grant Gifts of Recognition whereby there hath been few Debates or Decisions thereanent and there is no consequence that because the Casuality of the Ward when it falls is liquidat and Taxed or the value of the Marriage that therefore the Fee is not a Military Fee wherein the Vassal is oblieged to assist his Superiour in Counsel and in War in the stoutest Obligations of Faithfulness and Gratitude and therefore his withdrawing himself from his Vassallage and obtaining another to him is the greater Ingratitude that the Superior had Taxed the benefite of the Ward and Marriage at low rates which Casualties cannot be drawn to prejudge the Superior of other Casualties but on the contrair exceptio firmat regulam in non exceptis The Lords repelled this Defense It was further alleadged that here was no offer of a Stranger but of the Vassals own Grand-child who now is his apparent Heir in one half of these Lands as being the eldest Son of his second Daughter and Recognition was never found in such a Case The Pursuer answered that albeit the Defender be now apparent Heir to the Vassal Disponer yet the Case must be considered as it was in the time of the Disposition when he had an elder Brother the then Lord Cranburn living and was not alioqui successurus and the Lords had formerly found that an alienation of Ward-lands by the Earl of Cassils to his own Brother albeit he was his nearest of Kin for the time having no Children yet seing he could not be esteemed alioqui successurus or Heir apparent in regard the Earl might have Children therefore they found Recognition incurred The Lords repelled this Defense 3ly It was further alleadged that there could be no Recognition where there was no alienation of the Fee without the the Superiors consent here there was no alienation of the Fee because the Seasine being taken to be holden from Dirletoun of the KING not confirmed was altogether null and therefore Dirletoun was not Divested nor Cranburn Invested for such an Infeftment is ineffectual and incompleat till Confirmation and could never be the ground of Pursuit or Defense against any Party 2ly By such an Infeftment the Superiors consent is a Condition implyed for an Infeftment to be holden of the Superior is null till Confirming and implyes as much as if the Seasine had been expresly granted si dominus consenserit and so can be no obtrusion or ingratitude 3ly Craig in his Dieges de recognitionibus Reports the Decision of the Lords betwixt Mckenzie and Bane whereby they found that the Seasine being unregistrat was null and inferred no Recognition quia non spectatur affectus sed effectus yet that was but an extrinsick nullity much more here the Seasine being intrinsically null The Pursuer answered First That if this ground hold there could be no Recognition except by subaltern base Infeftments holden of the Vassal in which there is far lesse ingratitude there being no new Vassal obtunded nor the Vassal withdrawing himself from his Clientel nor any prejudice to the Superior because subaltern Infeftments
albeit it appears to flow from the Mother yet that is but dolose and in effect it flows from the Father 2. Seing the superplus was appointed to be an Aliment to the hail Children seing there is but one it ought to be modified and what remained above the 600. merks and a competent Aliment to belong to the Creditors The Lords found that the Childs Renunciation should repone himâ— and found that if the Provision had been Exorbitant it might have been counted as fraudulent but they found it not exorbitant seing the Land was offered to the Defenders for 900. merks and there was 200. merks thereof Liferented by another Woman so that there râ—mained but 100. merks for the Child and therefore Repelled the Defenses and Decerned VVilliam Dickson contra Iohn Hoom. Eodem die WIlliam Dickson having charged Iohn Hoom upon a Bond of 37. Pounds Scots He suspends and offers to improve the Bond as not subscribed by him but another Iohn Hoom. It was answered Improbation was not receivable but in a Reduction or where the original Writ was produced But this Bond was Registrate in an Inferiour Court and the Charger was not oblieged to produce nor was the Clerk called The Lords in respect the matter was of small importance admitted the Reason of Improbation the Suspender Consigning principal Sum and Annualrent and declared they would modifie a great Penalty in case he succumbed and ordained Letters to be direct against the Clerk of the inferiour Court to produce the principal Howison contra Cockburn November 17. 1665. THe Executors of David Howison pursue Iames Cockburn for the price of several ells of Cloath which the said Iames by his Ticket produced granted him to have received in name and for the use of the Laird of Langtoun his Master It was alleadged absolvitor because by the Ticket the Defender is not oblieged to pay the Cloath and doth only act in name of his Master and therefore the Merchant ought to have called for the Accompt from his Master within three years which he has not done till many years long after his Masters death It was replyed that the Ticket must obliege him at least docere demandato for his doing in name of his Master could not obliege his Master so that if he be not so oblieged the Merchant loses his Debt and no body is oblieged It was answered that he who Acts with any Mandatar should know his Commission and if he does not know it it is upon his own hazard but if the Mandatar Act not in his own name but his Masters he does not obliege himself and if Servants who receive in their Masters name should be thus oblieged to shew their warrand it would be of very evil consequence seing their Receipt can be proven by Witnesses within three years and their Warrand would not be so probable The Lords found that post tantum tempus the Defender was not oblieged to instruct his warrand but the same was presumed to have been known to the Merchant unless it be proven by the Defenders Oath that he acted without a warrand or that he did not apply the Cloath to his Masters use Baxters in the Canongate November 21. 1665. THere being a Contract betwixt two Baxters in the Canongate to make use of an Oven still keeped hot for both their uses the one pursues the other as desisting and obtained Decreet before the Baillies of the Canongate for 36. Pounds of Damnage which being Suspended It was alleadged ipso jure null as having compearance mentioning Defenses Replys c. And yet expressing none but refers the Defenders Action to the Pursuers Probation by Witnesses who now offered to prove positive that he continued in doing his part The Lords would not sustain this visible Nullity without Reduction though in re minina inter pauperes for preserving of Form Laurence Scot. contra David Boswel of Auchinleck November 22. 1665. UMquhil David Boswel of Auchinleck being Debitor to Laurence Scot in 1000. pounds by Bond He pursues his Daughters as Heirs of line and David Boswel now of Auchinleck his Brothers Son as Heir-mail or at least lucrative Successor by accepting a Disposition of Lands from the Defunct which were provided to Heirs-mail and so being alioqui successurus It was alleadged for the said David no Process against him till the Heirs of Line were first discuâ—â— It was Replyed and offered to be proven that he was oblieged to relieve the Heirs of Line Which the Lords found Relevant It was further alleadged for the Defender that he could not be conveened as lucrative Successor by the foresaid Disposition because the time of the Disposition he was not alioqui successurus in respect that his Father was living It was answered that albeit he was not immediat Successor yet being the mediat Successor the Disposition was precepâ—â—o haereditatis and the Lords had already found that a Disposition to an Oye made him Lucrative Successor albeit his Father who was immediat appearand Heir was living The Lords sustained not the Lylel upon that member for they found it was not alike to Dispone to a Brother as to a Son or a Brothers-son as to an Oye because a Brother is not appearand Heir nor alioqui successurus seing the Disponer has haeredes propinquiores in spe and therefore cannot be presumed to have Disponed to his Brother or Brother Son in fraud of his Creditors seing that by that Disposition he does also prejudge his own Son if he should have one and this 〈◊〉 prejudice to the Pursuer to Reduce the Disposition upon the Act of Parliament as accords Mr. Iames Campbel contra Doctor Beaton November 23. 1665. DOctor Beaton being Infeft in certain Lands Wodset by the Laird of Balgillo does thereafter by a minute take an absolute Disposition thereof for a price exprest in the Minute whereupon Mr. Iames Campbel arrests in Doctor Beatons hands all Sums due by him to Balgillo for payment of a Debt due by Magillo to Mr. Iames and likewise Iuhibits Bagillo after which there is a Tripartite Contract betwixt Bagillo on the first part the Doctor on the second and Iohn Smith who bought the Lands on the third the Doctor and Bagillo Dispone with mutual consent and the Doctor particularly assigns the Minute to Smith Bagilâ—o Renounces the Minute as to the price and Smith is oblieged to pay the Wodset to the Doctor the Debitor being before conveened for making arrested Goods forthcoming and having Deponed that he was owing no Sums to Bagillo the time of the arrestment but by the Minute which was an Inchoat Bargain never perfected but was past from thereafter and that he was not Disponer to Smith but only consenter whereupon he was assoilzied But Mr. Iames Campbel having now found the Tripartite Contract pursues the Doctor again thereupon super dolo that by passing from the Bargain and yet assigning the Minute and not destroying it he had dolose evacuate Mr. Iames Inhibition and Arrestment seing Smith
Decreet of modification and locality and albeit the Minister had Discharged his whole Teind yet as to the superplus which is the Tacksmans part the Discharge was meerly gratuitous and was not upon payment made and the Pursuer was willing to allow what he truely payed the Defender answered that in all Benefices and Tacks use of payment importing a verbal Tack is sufficient per tacitam relocationem till it be interrupted so that if the Minister had granted a Tack in Writ but for one year and the Defender had continued in Possession per tacitam relocationem he was bona fide Possessor fâ—cit fructus consumptos suos even albeit the Minister had no Right so his use of payment for so long a time must work the same effect neither can it be made appear that the Defender or his Predecessors payed more then what they now pay The Lords Sustained the Defense and found the Defender only lyable for use of payment until Citation or Inhibition Mr. George Johnstoun contra Sir Charles Erskin Lord Lyon Eodem die UMquhile Richard Irwing having Died Infeft in the ten Merk Land of Knok-hill his Son had a Son and four Daughters his Son being his appearand Heir and being Addebted a Sum to Mr. Iames Alexander he Charged him to enter Heir in special to Richard his Grand-father and Apprized the Lands from him whereunto Sir Charles Erskin has now Right the said Son being now Dead and never Infeft Mr. George Iohnstoun takes Right from the four Female Grand-children and Serves them Heirs to their Grand-father but before they were Infeft there was an Infeftment or Charge upon the Apprizing at the instance of Mr. Iames Alexander and in a former competition Sir Charles was preferred upon Mr. Iames Alexanders Right as denuding the Male Grand-child appearand Heir for the time in the same manner as if he had been Infeft now Mr. George Iohnstoun upon the Femals Right raises a Declarator to hear and see it found and declared that Mr. Iames Alexanders Apprizing was satisfied and extinct by Intromission before the legal was expired It was alleadged that the Pursuers as Heirs Served and entered to Richard their Grand-father had no interest to Redeem the Apprizing led against Robert their Brother unless they were also entered Heirs to their Brother which Robert if he were alive might Redeem the Apprizing against himself so that the legal Reversion being in his Person cannot belong to his Grand-fathers Heirs but to his own Heirs and as he or his Heirs could only Redeem so can they only declare the Apprizing to be satisfied by Intromission neither can the Reversion belong to two both to the Heirs of Robert who was Charged to enter Heir and to the Heirs of the Grand-father who Died last Infeft It was answered that Robert never having in his Person any real Right as never being Infeft albeit fictione juris the Act of Parliament gives the Creditors like Right upon his disobedience to enter being Charged as if he had entered yet that is a meer passive Title and could give no active Title to Robert or any representing him either to Redeem or to call the Apprizer to an accompt till they were entered Heirs to the person last Infeft for albeit the Creditor Apprizer has a real Right yet the disobedient appearand Heir has none and albeit the Lords might suffer the disobedient appearand Heir or his Heirs to Redeem the Apprizing because the Apprizer had no interest to oppose the same being satisfied much less can the Apprizer now oppose the Pursuers who being Infeft as Heirs to Richard have the real Right of Fee in their Person and consequently the Right of the Reversion of the Apprizing led against Richards appearand Heir which being a minor Right is implyed and included in the Property Which the Lords Sustained and found that the Heirs of the person last Infeft being Infeft might Redeem or declare against an Apprizer who Apprized from an appearand Heir lawfully Charged albeit they were not of that appearand Heir The Creditors of James Masson contra Lord Tarphichan Eodem die SEveral English-men Creditors to Iames Masson who lately broke being Infeft in several Annualrents out of Lands of his pursue Poinding of the Ground compearance is made for the Lord Tarphichan Superior and his Donator to the Liferent Escheet of James Masson who alleadged that James Masson being Ribel year and day before these Infeftments of Annualrent the Ground could not be Adjudged but the profits behoved to belong to the Superior and his Donator It was answered that the Superior or Donator had no Interest by the Rebellion of James Masson because before the Rebellion James Masson was Denuded in favours of his Son and he Received as Vassal so that the Vassal for the time not having fallen in Rebellion the Superior can have no Liferent Escheat The Superior answered that the Creditors of Masson having been once Vassal and as Vassal constituting their Annualrents they could not object upon the Right of his Son unless they had derived Right from his Son 2dly The Superior is also Creditor and hath Reduced the Sons Right as fraudulent in prejudice of him a lawful Creditor It was answered that the Superiors Right as a Creditor upon the Reduction doth not simply annul the Sons Fee neither doth it at all restore the Father again because it being but a Reduction to a special effect viz. that the Creditor may affect the Lands by Apprizing upon his Debt anterior to the Sons Infeftment notwithstanding of his Infeftment the Sons Fee stands but burdened with that Apprizing so that upon neither ground the Superior can have the Right of a Liferent Escheat of him who once was his Vassal but was Denuded before Rebellion and which is most competent to the Pursuers as well as if the Superior had been Denuded and another Superior Infeft if he or his Donator had been pursuing for a Liferent any person Infeft in the Land might well alleadge that he had no Interest as Superior being Denuded The Lords found that in neither case the Superior or Donator could have interest in the Liferent Escheat Mr. John Hay contra the Town of Peebles January 20. 1669. MAster John Hay the Clerk having pursued a Reduction and Improbation against the Town of Peebles of all Right of Ascheils belonging to him in Property containing also a Declarator of Property of the saids Lands of Ascheils and that certain Hills lying towards the Town-lands of Peebles are proper Part and Pertinent of Ascheils He insists in his Reduction and Improbation for Certification or at least that the Defenders would take Terms to produce The Defenders alleadged no Certification because they stand Infeft in these Hills in question per expressum and the Pursuer is not Infeft therein The Pursuer answered that he offered to prove that they were proper Part and Pertinent of the Lands of Ascheils whereof he produces his Infeftment The Defenders answered that till the samine were
in the Letters that ought not to have been granted because Appryzings should only be in the head Burgh of the Shire or in communi patriâ at Edinburgh but especially seing the Warrand was obtained from the Lords of course among the common Bills without being Read or considered and so is periculo petentis and cannot prejudge the more formal Diligence of other Comprizers especially seing Lundy Appryzed of new for the same sums which will come in pari passu with the rest being within year and day It was answered that it is inherent in all Jurisdictions to continue Processes to new Dyets having keeped the first Dyet and that the Messenger by the Letters is Constitute Sheriff and there is no question but Sheriffs might and did prorogate Dyets in Appryzings and the Letters bears Warrand to fix Courts one or more and for the continuation it was but to the next day in regard of a great Speat the Appryzing being upon the hill in the open field the time of Rain and it being mâ—dica mora to the next day which will give no Warrand to an Arbitrary continuation by Messengers to what Interval they please And as for the place The Lords by Dispensation may appoint what place they see convenient and albeit the Dispensation had been of course and that therein the Clerks had failed yet the Parties obtainers of such Dispensations are secure thereby and ought not to be prejudged The Lords Sustained the Appryzing and found the Requisition now produced sufficient and found that the continuing of the Dyet for so short a time to be no ground of nullity unless the Competitors could alleadge a special cause that they did or might alleadged whereby they were prejudged by leading the Appryzing the second day rather than the first The Lords did also Sustain the Dispensation of the place and having perused the Practique produced at the Instance of the Lady Lucia Hamiltoun anent an Appryzing led at Glasgow by Dispensation They found that the Lords did not annul the Appryzing on that Ground But the Lords ordained that no Bill bearing Dispensation should pass of Course in time coming but upon special Reasons to be conâ—idered by the Lords or the Ordinary upon the Bills and that Messengers should not continue the Dyets in Appryzings but upon necessar Causes and ordained an Act to be insert in the Books of Sederunt for that effect Adam Gairns contra Isobel Sandilands Eodem die ADam Gairns pursues Isobel Sandilands as Representing her Father to pay a Debt of his and specially as behaving as Heir by uplifting the Mails and Duties of a Tenement wherein the Father Died Infeft as of Fee in so far as by Contract of Marriage betwixt Thomas Sandilands her Father and Iohn Burn and Isobel Burn his Daughter The said Iohn Burn provided the said Tenement in thir Terms viz. after the Obligements upon the Husbands part it follows thus For the which Cause the said Iohn Burn binds and obliges him to Inseft Thomas Sandilands and the said Isobel Burn the longest liver of them two in Conjunctfee or Liferent and the Heirs between them Which failzying the said Isobel her Heirs and Assigneys whatsomever By which Provision her Father being Feear and Infeft the Defender is lyable The Defender alleadged absolvitor because by this Provision of the Conjunctfee of this Tenement Isobel Burn the Defenders Mother was Feear and her Father was but Liferenter in respect the Termination of the Succession is to the Mothers Heirs yea and to her Assigneys which necessarly imports that she had power to Dispone And it is a general Rule in Succession of Conjunct-Feears that that Person is Feear upon whose Heirs the last Termination of the Tailzie or Provision ended especially in this Case where the Right of the Tenement flowes from the Womans Father So that if there were any doubtfulness it must be presumed that the Fathers meaning was to give the Fee to his Daughter having no other Children Neither is this Land Disponed nomine dotis And the Defender stands Infeft by Precept of Favour as Heir to her Mother and thereby bruiks bona fide and her Infeftment must Defend her till it be Reduced The Pursuer answered that by the provision the Husband was Feear and the Wife was only Liferenter because though the last Termination doth ordinarly rule the Fee yet this is as favourable a Rule that in Conjunct Provisions potior est conditio masculi and though the Termination be upon the Wifes Heirs whatsomever yet they are but Heirs of Provision to the Husband and he might have Disponed and his Creditors may affect the Land which holds in all Cases except the Lands had been Disponed by the Wife her self without a Cause onerous But here the Husband is first named and it is but a small parcel of Land beside which there is no other Tocher So that though it be not Disponed nomine dotis Yet being Disponed for the which Causes it is equivalent and in the same Contract the Husband is obliged to provide all Lands that he shall Acquire or succeed to to himself and his Wife the longest liver of them two in Conjunct-fee or Liferent and to the Heirs between them Which failzying the one half to the Husbands Heirs and the other half to the Wifes Heirs and their Assigneys and it cannot be imagined that the meaning of these Clauses was that the Fee of the Mans Conquest and Succession should not be all Constitute in himself but that the Wife should be Feear of the half And in like manner the Fathers meaning is clear because the Clause bears not only in Contemplation of the Marriage but for sums of Money received by the Father which albeit left blank in the Contract yet it cannot be thought that in such a Narrative he intended to make his Daughter Feear And as for the adjection of her Assigneys it is only ex stilo for Assigneys is ever added after the last Termination of Heirs and does always relate to all the Feears and would extend to the Heirs of the Marriage their Assigneys as well as to the Wifes Heirs failing them Likeas Assigneys isin the same way adjected to the Clause of Conquest wherein there is no ground to imagine that the Wife is Feear and both bears the Husband and Wife to be Infeft in Conjunct-fee or Liferent The Lords found that by this Provision and Infeftment thereon the Husband was Feear and the Wife only Liferenter and found no necessity to Reduce the Defenders Infeftment as Heir to her Mother not proceeding upon a Retour but a Precept of Favour But they found that the dubiousness of the case was sufficient to free her from the passive Title of Behaviour but only for making forthcoming her intromission quoad valorem But it was not Debated nor Considered whether as bonae fidei Possessor by a colourable Title being Infeft as Heir to her Mother she would be free of the bygones before
and a Donation pro reliquo which many thought strange seeing a Bond of 100. Sterling mentioned 14th Instant reâ—eired and payed by the Mother and being proven by Patrick Scots oath so to have been done to the satisfaction of most of the Lords which was clogged with no Provision was not allowed to be in Satisfaction of these Bairns Portions Bosewel contra Bosewel November 22. 1661. JOHN Bosewel Pursues Bosewel of Abden as representing Henry Bosewel his Father for payment of a 1000. pounds due to the Pursuer by the said umquhil Henry and insisted against the Defender as lucrative Successour by accepting a Disposition of Lands and Heritage from the said umquhil Henry whereunto he would have succeeded and was therein his appearing Heir The Defender alleadged he was not lucrative Successor because the Disposition was for Causes onerous The Pursuer answered non relevat unless it were alleadged for Causes onerous equivalent to the worth of the Land as was formerly found in the Case of Elizabeth Sinclar contra Eâ—phingstâ—â—â— of Cardoâ—â— The Defender answered maxime relevat to purge this odious passive Title of lucrative Successor which is no wheâ—e sustained but in Scotland specially seeing the Pursuer hath a more favourable remeid by Reduction of the Disposition upon the Act of Parliament 1621. if the price be not equivalent and there it is sufficient to say it was for a considerable sum or at least it exceeded the half of the worth for there is latitude in buying and selling and as an inconsiderable Sum could not purge this Title so the want of an inconsiderable part of the full price could as litle incur it The Lords before answer ordained the Defender to produce his Dispositior and all Instructions of the Cause onerous thereof that they might consider if there was a considerable want of the equivalence of the price here the Defender pleaded not that he was not alioqui successurus the time of the Disposition being but Consing German to the Defunct who might have had Children Dowglasse contra Iohnstoun Eodem die EODEM die In the Competition between Dowglass in Abernethie who Confirmed himself Executor Creditor to Gilbert Weymes in Dumblane where Gilbert dwelled and Iohn Iohnstoun as Executor Confirmed to the said Gilbert by the Commissars of Edinburgh because Gilbert in a Voyage from Scotland to Holland died at Sea The Lords found the Commissars of Edinburgh to have no Right unless the Defunct had died abroad animo remanendi This Interlocutor was stayed till the Commissars were further heard Marjory Iamison contra Rodorick Mccleud December 3. 1661. MARIORI Iamison Relict of umquhil Mr. Iohn Alexander Advocat pursues Rodorick Mccleud for payment of a Bond of Pension of 200. merks yearly granted to her Husband bearing For Service done and to be done The Defender alleadged the Libel is not relevant unless it were alleadged that Mr. Iohn had done Service constantly after granting of the of the Pension which the Lords Repelled The Defender alleadged further that he offered him to prove that Mr. Iohn did desist from his imployment as Advocat after the Pension and became Town Clerk of Aberdeen and the Pension being granted to him who exerced the Office of an Advocat at that time must be persumed for his Service as Advocat The Lords Repelled this Defense in respect of the Bond of Pension bearing For Services done and to be done generally Sir Robert Farquhar contra Lyon of Muiresk Eodem die SIR Robert Farquhar pursuing a Reduction of a Disposition against Iohn Lyon of Muiresk upon Circumvention The Lords granted Certification unless not only the Extract but the Principal Disposition were produced in respect they were registrate at that time when the Principals were given back to the Parties Thomas White contra Crocket December 4. 1661. THOMAS White pursues Patrick Crocket in Eliot to make payment of the sum of 600. merks which the Pursuer alleadged he had in a Leather-Girdle when he lodged with Crocket being in an In-keepers House and that the Defender promised that the Pursuer should want nothing after the Pursuer had shown him the said Girdle yet the Defender came ordinarly in the Chamber where the Pursuer lay that night and he wanted his money from under his head which he declared and shew to the Defender the next morning and therefore according to the Law nautae caupones stabularij c. which is observed in our Custom the Defender as Keeper ought to be Decerned to restore The question was here only of the manner of Probation The Lords found all the Libel Relevant to be proven pro ut de jure and declared that these being proven they would take the Pursuers oath in litem upon the quantity Baillie of Dunnean contra Town of Inverness Eodem die BAILLIE of Dunnean pursues the Town of Inverness for violent Intromission in his Moss and molesting him therein both Parties were content to Dispute as in a Molestation The Defenders alleadged Absolvitur because the Town of Inverness was Infeft in their Bâ—rgh and Burrow-lands with common Pasturage in Montkaplâ—ch and offered them to prove the Moss contraverted was a part of Montkaâ—loch and that they have been in constant Possession thereof accordingly The Pursuer Replyed the Defense ought to be Repelled because he offered him to prove that he was Infeft in his Lands of Dunnean with Parts and Pertinents and that the Moss contraverted was proper Part and Pertinent of his said Lands and that he was in use to debar the Defenders therefrom and to get Moss Mail for tollerance to cast therein and produced the same under the hand of nine of the Citizens and one by their Clerk and therefore being in libello ought to be preferred in Probation The Lords before answer granted Commission to Examine Witnesses hinc inde upon the Possession of either Party Which being Reported the Defenders craved the same with the Dispute to be Advised The Pursuers Procurators alleadged there was yet no Litiscontestaâ—ion and they were not Insisting and the Defenders could not compell them to Insist without a Process to Insist with certification in which case they would get a day to Insist The Lord found that the Probation being taken before Answer was equivalent to Litiscontestation as to the Points Proposed and that they miâ—ht proceed both to Advise the Points of Probation and Relevancy together and might instantly Decern accordingly albeit it hindred not the Parties to Propone other Alleadgences in jure then it were in the Dispute as in ordinary Litiscontestation and therefore the Lords considered the Parties Infeftments specially that of the Town of Inverness bearing with liberty to them to cast Fail and Divote in the Month of Kaploch and several other Months according as they were accustomed of before Which Clause the Lords found to be Qualified and Taxative and not to give an absolute Right of Commonly but only such as they had before which behoved to be cleared by Posterior long Possession and
instruct the Protestation The Lords Repelled the Defense in respect of the absence of the Register and the oldness of the Horning Achinbeck contra Mccleud Eodem die IN an Improbation at the Instance of the Laird of Achinbeck against Mccleud The Lords found that the Improbation behoved to be continued albeit the samine had an ordinar priviledge to pass upon six dayes for the first Summonds past of course periculo penitentis Acheson contra Earl of Errol Eodem die ACheson pursues the Earl of Errol as presenting his Father to pay a Debt wherein his Father was Cautioner for the Earl of Mar and for instructing thereof produced the Extract of a Bond Registrate by consent in the Books of Session The Defender alleadged no Processe against him because the Bond was not Registrat by any Procurator for his Father because he was Dead before the Registration and so cannot prove against him neither being a principal Writ Subscribed by his hand nor being a Decreet of Registration by consent of his Procurator nor upon Citation The Pursuer alleadged that it was an authentick Evident and bare expresly Sic subscribitur Errol and seing by Law and Custom the Pursuer was necessitat to leave the Principal at the Register when the Registrat the same and that the Registers are now lost without his fault The Lords refused to sustain the Extract against the Earl of Errol but yet would not put the Party to an Action of proving the Tenor but would receive Adminiâ—les to instruct that Earl was Cautioner and therefore ex officio ordained the other Subscribers of the Bond or any other person that could be adduced for instructing the Truth to be required ex officio Thomas Crawford contra Earl of Murray February 8. 1662. THomas Crawford as Executor Creditor Confirmed to Umquhil Robert Ingâ—is as Assigney by his Relict for satisfaction of her Contract of Marriage pursues the Earl of Murray for payment of the Sums Confirmed addebted by him to the said umquhil Robert The Defender alleadged compensation because he had Assignation to a Debt due by the said umquhil Robert which as it would have been relevant against Robert himself so must it be against his Executor The Pursuer replyed First non relevat unless the Assignation had been Intimat before the Confirmation but an Executor Creditor having done Diligence by Confirmation it is not in the power of any of the Defuncts Debitors by taking Assignation from any of his Creditors to prefer that Creditor to any other Creditor which is no ways legittimus modus preferendi But the Creditors must be preferred only according to their Diligence Secondly This Pursuit being for Implement of the Relicts Contract of Marriage and pursued to their behove hath by our Law and Custome preference to all other personal Creditors though having done more Diligence The Lords found either of these two Replys Relevant to elide the Defense albeit the Assignation was before any Pursuit moved upon the Pursuers Confirmation Lord Torphichan contra Eodem die THe Lord Torphichan and certain of his Feuars pursue a Reduction of a Decreet of the Sheriff whereby he set down Marches betwixt their Lands and others upon this Ground that he did not proceed by an Inquest conform to the Act of Parliament but by Witnesses Secondly That he as Superiour was not Called Thirdly That the Sheriff had unwarrantably Sustained the setting down of Marches foamerly by Arbiters to be proven by Witnesses The Defenders answered the first Reason was not objected and the Defenders Compearance it was competent and omitted To the second the Superour could have no Detriment To the third that the setting down of March-stones being a palpable Fact might be proven by Witnesses whether done by the Parties themselves or by Friends chosen in their presence their being neither Decreet-arbitral nor Submission in Writ The Lords Repelled the Reasons in respect of the Answer and declared that if the Land fell in the Superiours hands by Recognition Non-entry or otherwise The Decreet should not prejudge him if he were not Called Ramsay of Torbanie contra Mcclellane February 11. 1662. DAvid Ramsay of Torbanie having raised Suspension and Reduction of a Decreet against him at the Iâ—stanâ—e of Thomas Mcclellane in Anno 1658. Insists upon this Reason that he being pursued as Heir to his Father at the Instance of Thomas Mcclellane he proponed this Relevant Defense absolvitor because the Bond pursued upon was granted by his Father after he was Interdicted without consent of the Interdictors and so could not affect the Person Interdicted Heir albeit he had succeeded in his Estate The Defender answered that the said alleadgence was justly Repelled in respect of this relevant Reply that the Interdiction hath no effect as to Moveables and Personal Execution neither as to any other Lands then such as lay in the Shires or Jurisdictions where the Interdiction was puplished and Registrat conform to the Act of Parliament ita est this Interdiction was published and Registrate only at Linlithgow and therefore if the Defender hath succeeded to any Lands not lying in Linlithgow Shire or if he hath medled with Heirship Moveable or be vitious Intromettor with his Fathers Moveables he is lyable for this Sum albeit after the Interdiction ita est he succeeded to Lands in the Stewartry of Kirkcudburgh and Moveables c. and therefore the Defense was justly Repelled The Lords found the Decreet just and therefore Repelled the Reasons of Suspension and Reduction Bells contra Wilkie February 12. 1662. GRissel and Bells raise a Reduction against Iames Wilkie of a Decreet obtained at his Instance against them in Anno 1659. whereby the said Iames Wilkie being Executor Confirmed to his Mother who was one of the Sisters and Executors of umquhil Patrick Bell their Brother in which Confirmation the said Iames gave up the third of the said Patricks Goods and thereupon obtained Decreet against these Pursuers as the two surviving Executors to pay to the said Iames his Mothers third Part of her Brothers Means The Reason of Reduction was that the Decreet was unjust and contrair to the Law and Custom of this Kingdom whereby there is no right of Representation in Moveables as in Heretage neither doth the Confirmation of the Executors establish in the Executors a compleat Right untill the Testament be execute either by obtaining payment or Decreet and if the Executor die before Execution the Right ceases and is not Transmitted to the Executors Executor but remains in bonis defuncti of the first Defunct and therefore Executors ad non Executa must be confirmed to the first Defunct which being a constant and unquestionable custome one of the three Executors deceasing before Executing the Testament her Right fully ceases and both the Office of Executrie and Benefit accresâ—es to the surviving Sisters as if the deceased Sister had never been Confirmed Executrix The Defender in the Reduction Answered That this Reason was most justly Repelled because albeit it be true
Direct Action in favour of the Mandator against the Mandatar or Person intrusted so there is a contrare Action in favours of the Mandatar for satisfying of all that he hath expended by Reason of the Trust and which he may make use of beway of Exception of Retention if he be pursued and whatsomever by in Relation to Compensation in deposito by the civil Law or of the difference of Action and Exception yet thereby they and by our un contraverted Custom whatever is competent by way of Action is Competent by Exception and if this be not receavable by Exception it is utterly lost because there is none to represent Summerset The Lords considering that Balmirino's Estate was disponed and Apprysed by his Vncle the Lord Couper and William Purvis the Reversion whereof was shortly to expire which they would not lengthen and that by an accompt running to the expire of these Reversions the Pursuer being a Stranger might be frustrat therefore they Repelled the Defense but declared that Estate or benefit that Bedfoord should make thereby should be lyable to Balmirino for what Debt he should instruct to be due by Sommerset and withall supersâ—â—eded the Extract fâ—r a time that if in the meane time Balmirino should cause Couper and Purvis Restrict their Rights to as much Rents as would pay their Annualrents and secure Bedfoord in the rest of his Estate and in a certain Bond produced for what should be found due They would sustain the Defense by Exception and Ordain Compt and Reckoning Lord Carnagy contra Lord Cranburn February 19. 1662. THE Lord Carnagie being Infeft in the Barony of Dirltoun upon a Gift of Recognition by the KING pursues a Declarator of Recognition against the Lord Cranburn because the late Earl of Dirltoun holding the said Barony Ward of the KING had without the KING'S consent alienat the same to Cranburn and thereby the Lands had Re-cognized The Defender alleadged First No Process because he is minor non tenetur placitare super haereditate paterna Secondly The Re-cognition is incurred by the ingratitude and Delinquence of the Vassal yet delicta morte extinguntur so that there being no other Sentence nor Litiscontestation against Dirltoun in his own Life it is now extinct which holds in all Criminal and Penal Cases except in Treason only by a special Act of Parliament The Lords Repelled both the Defenses The First in respect that the Defender is not Heir but singular Successor and that there is no question of the validity of his Predecessors Right in competition with any other Right but the Superiours The other because Recognition befalls not as a Crime but as a Condition implyed in the nature of the Right that if the Vassal alienat his Fee becomes void Children of Wolmet contra Mr. Mark Ker. Eodem die IN a Declarator of Redemption at the the Instance of the Children VVolmet against Mr. Mark Ker. It was found that the Declarator needed not be continued though the Pursuer produced not the Reversion but an attestat double thereof and offered to prove that the principal Reversion was in the Defenders hands Which was sustained the Pursuers Right being an Appryzing Earl of Calender contra Andrew Monro February 20. 1662. THE Earl of Calender pursues Andrew Monro of Beercrofts for the valued Teind Duty of his Lands several years who alleadged absolvitor for the Teinds intrometted with by his Author preceeding his Right The Pursuer Replyed that Teinds being valued are like an Annualrent and are debiti fundi by the Act of Parliament 1633. anent Valuations The Teind-masters being appointed to be Infeft in the Right of the Teind according to the Valuation The Lords found the Defense Relevant and found the Teind not to be debitum fundi albeit valued Halbâ—rt Irvin contra Mackertnay Februarie 24. 1662. THis day in a Spulzie betwixt Halbert Irvin and Mackertnay The Defender principally called having proponed a Defense upon a Disposition and Delivery of the Goods in question and craving to prove the same by others of the Defenders called as accessory as necessary Witnesses alleadging that the Pursuer had called all that were present upon the ground as accessories that thereby he should get no Witnesses The Lords Ordained the Pursuer in the Spulzie to declare whether he would insist against these others as accessory or as applying any of the Goods to their own behove or if he would not allowed them to be received as Witnesses and if he did insist against them Ordained the Processe against the principal Partie to fist till the accessions were discussed that such of them as were assoilzied might be used as Witnesses Alexander Arbuthnet of Fiddes contra Keiths February 25. 1662. ALezander Arbuthnet of Fiddes pursues Keiths the two Daughters of John Keith and their Husbands for the avail of their Marriages belonging to him as Donatar by the Earl of Marischal their Superiour The Defenders alleadged First No Process because nothing produced to instruct that the Lands were Waird or that the Earl of Marischal is Superiour Secondly absolvitor from that Conclusion of the Summonsâ— craving not only the Ground to be Poynded for the avail of the Tocher but also the Defenders personally to pay the same Thirdly Absolvitor because the Earl of Marischal consented to the Defenders Marriage in so far as he is Witness in the Contract The Lords repelled all these Alleadgances The First in respect that Waird is presumed where the contrair is not alleadged and the Defender did not disclaim the Earl of Marischal as his Superiour The Second because they found that the avail of the Marriage did not follow the Value of the Land holden Waird but the Parties other Means and Estates also so that the avail of the Marriage might be much more worth then the profite of the Waird Land and therefore behoved not only to affect the Ground but the Heir or appearand Heir personally And as to the other Defense of the Earls consent it was after this Granted and was only as Witness neither is the profite of the Marriage as to the single avail taken away by having of the Superiours tacit consent but is a Casuality simply belonging to him which cannot be taken from him unless id agebâ—tur to renunce the benefite thereof yet it seems that the Superiour consenting to his Vassals Marriage can crave no greater Avail then the Vassal gets of Tocher Brown contra Iohnstoun February 26. 1662. BRown having obtained Decreet against Archibald Iohnstoun of Clachrie for two hundred pounds Sterling He raises Reduction and Review upon this Reason that the ground of the said Decreet was a Bill of Exchange drawn by Johnstoun to be payed by Mukgown in Blackainor-fair in England Ita est the alleadged Bill is null not Designing the Writer nor having any Witnesses neither hath it the Subscription of Johnstoun nor the Initial Letters of his Name but only a mark most easily Initiable which is Written about with an unknown hand Archibald Johnstoun
also produced three Contracts betwixt umquhil Lambertoun and Kennedy at Striveling upon the ninth of August 1651. by the last of them Kennedy was oblieged to deliver Lambertoun the Bonds for such several Sums he obtaining the Lady Levins consent of all these the Writer and Witnesses were dead and the Date proven to be false In this Process the Lords having considered all the indirect Articles of the Improbation in respect that these Writs in question were never in the alleadged Creditors hands and that there was not one Witness that did Depone that either they remembred to have Subscribed any of these Writs themselves or that they saw either the Parties or any other of the Witnesses Subscribe or any thing communed done or acknowledged by either Party contained in the Writs and that the Subscription of Watson one of the Witnesses in all the Bonds was by comparison with other contraverse Writs about the same time altogether unlike his Subscription and that the Word Witnesses adjoyned to the Subscription of all the VVitnesses did appear to be so like as written with one hand They found sufficient ground to Improve the foresaids writs besides many pregnant presumptions from Kennedies inclination and carriage which being extrinsick were accounted of less value and yet the astructions aforesaid and presumptions on that part were so strong that several of the Lords were unclear simply to find the Bonds false but not authentick probative writs VVilliam VVachope contra Laird of Niddrie Iuly 15. 1662. THe said VVilliam VVachope pursues Niddrie his Brother to pay him eleven pound Sterling for many years which he promised to pay him by a missive Letter produced bearing a Postscript of that nature The Defender alleadged absolvitor First because the Postscript is not Subscribed and so no sufficient Instrument to prove Secondly there is no ground for eleven pound Sterling yearly therein because the words are I have sent you five pound ten shillings Sterling now and I have sent you five pound ten shillings Sterling at VVhitsonday and you shall have as much as long as you live if you carry your self as ye do now which words as long as ye live cannot be understood Termly but yearly nor can relate to both the five pound ten shillings Sterling but only the last to which is adjected Donations being of strick Interpretations Thirdly The words foresaid cannot import a Promise but only a Declaration of the Defenders resolution to continue the same free kindness to his Brother which resolution he may recal at any time Fourthly The Promise is conditional quamdiu se bene gesserit wherefore the Defender can be the only Interpreter and declares that since his Brother hath not carried himself so well the meaning of such words being only this If so long as in my opinion you carry your self so and not according to the opinion of any other The Pursuer to the first Defense opponed the Letter which is holograph and albeit the Postscript be after the Subscription yet seeing it can have no other construction then to be done as a part of the Letter and not as other unsubscribed Papers whereanent it is presumed the VVriter changed his mind and left them imperfect and unsubscribed which cannot be here seeing the Letter was sent To the second he opponed the terms of the Letterâ— To the third alleadged omne verbum de ore fideli cadit in debitum and by these words can be understood nothing else but a Promise which is ordinarly made in such terms The Lords found not the first Defense Relevant per se but found the remnant Defenses Relevant and assoilzied VVilliam Swintoun contra Iuly 18. 1662. THe said VVilliam Swintoun having used Inhibition against at the Cross where he lived she falls Heir thereafter to another Person and immediatly Dispones that Persons Lands whereupon William raised Reduction of that Right ex capite inhibitionis The Defender alleadged absolvitor because the Lands Dâ—poned ly not within the Shire where the Inhibition was used Therefore replyed the Land fell to the Inhibit Person after the Inhibition and the Pursuer did all he was oblieged to do or could do till that time which if it was not sufficient Creditors will be at a great loss as to Lands acquired or succeeded in alter Inhibitions The Lords found the Defense Relevant that the Inhibition could not extend to Lands in other Shires bâ—falling to the Inhibit after quocunque titulo but that the Pursuer ought to have Inhibit de novo or published and Registrat in that Shire seeing all Parties count themselves secure if no Inhibitions be Registrat in the Shire where the Lands ly without inquiring further Lord Frazer contra Laird of Phillorth Eodem die THe Lord Frazer pursues Declarator of Property of the Barony of Cairnbuilg against the Laird of Phillorth as being Infeft as Heir to his Father who was Infeft as heir to his Grand-father who was Infeft upon the Resignation of Frazer of Doors and also upon the Resignation of the Laird of Pitsligo who was Infeft upon an Appryzing led against Doors and also as being Infeft upon an Appryzing at the instance of one Henderson led against Doors and declared that he insisted primo loco upon the two first Rights flowing from Doors and Pitsligo The Defender alleadged Absolvitor because the Defender in an Improbation against the Pursuer and his Father obtained Certification against Doors Seasine so that it being now improven all the Rights Libelled on falls in consequentiam because Doors is the common Author to them all and if he had no real Right all their Rights are a non habente potestatem so that now the Pursuer has no more in his Person but a Disposition made by Phillorth's Grand-father to Doors and a Charter following thereupon and is in the same case as if Doors upon that ground were craving declarator of Property which he could not do nor would the Lords sustain it albeit there were no Defender because that can be no Right of Property where there is no Seasine The Pursuer answered 1. That the Defense is no ways Relevant nor is the Pursuer in the case of a Declarator upon a Disposition or Charter without a Seasine because he produces a progress of Infeftments and is not oblieged hoc ordine to Dispute Doors his Authors Rights as being a non habente potestatem which is only competent by way of Reduction some representing Doors his Author being called 2ly The Defense is no way competent to this Defender unless he alleadge upon a better Right then the Pursuers for the Pursuer hath done all that is requisit to instruct his Declarator by production of his Infeftments and his authors Rights are presumed and need not be instructed and albeit the Defender be called yet he cannot quarrel the Pursuers Authors Right or hinder his Declarator unless he alleadge upon a more valide Right in his own Person 3ly The Defense ought to be Repelled as proponed by this Defender
being since 1649. The Wodsetter should be comptable for the Profits more nor the Annualrents since the Date of the Wodset The Lords having considered the Woodset by which the Wodsetter bare the publick Burden found the said Clause of the Act not extended to make the Defender comptable since the Date of the Wodset but only since the Date of the offer to secure the Wodseter conform to the Act of Parliament by vertue of an other Clauses of the said Act Ordaining all Wodsetters to compt for the superplus and to possesse the granter of the Wodset he finding Caution for the Annualrents or to restrict to his Annualrent Lord Burghly contra Iohn Syme Eodem die LOrd Burghly and his Authors being Infeft by the Abbot of Dumfermling in the Coal-heugh of Keltie with power to win Coals within the bounds of the Lands of Cocklaw and Losodie pursues John Sime Heretor of Losodie for declaring his Right to win Coal in Losodie The Defender alleadged absolvitor because he and his Authors were Infeft in the Lands of Losodie with the pertinents above the Ground and under the Ground long before the Pursuers Authors Right The Pursuer answered that the Defenders Infeftment could not furnish him Right to the Coal of Losodie because it bare no power to win Coal but being only a Feu which is a perpetual Location it reaches not to Coal not being expressed especially seing in the Tenendas all the ordinary priviledges were exprest even of Peit and Turff and Coal was omitted and because the Defenders Chartor bare expresly a reservation to the Abbot and his Successors to win Coal in Losodie for their own proper use allenarly The Defender Answered that the Right of the Land being Feu with the Pertinents did extend to Coal albeit not exprest seing it was not wholly observed according to Craigs opinion and for the Reservation it did further clear the Defenders Right that seing the Abbot reserved only power to win Coal for his own use exceptio firmaâ— regulam in non exceptis whereby the Defender had Right to the remanent of the Coal neither could the exception extend to the Pursuer but only to the Abbot and give to his Successors only to these Succeeding in the Abbacy viz. the Earl of Dumfermling The Pursuer answered that the Defenders Infeftment was Confirmed long after the Pursuers and that the Defenders Confirmation was not of the first Feu but of a second Right from the first Feuar and by the Act of Parliament anent Feus it was declared that Feus since March 1658. not confirmed by the King before 1584. were â—ull at least another Act of Parliament bare expresly that where there were divers Feus granted of the same thing the first Confirmation with the last Feu should be preferable The Lords found the Defense founded upon the Defenders Rights relevant and proven thereby and therefore found the Pursuer had only right to win Coals in Losodie for his own use and found the Pursuer Successor to the Abbots by his Infefments of the said Priviledge of wining Coal in Losodie for his own use only and found the saids Acts of Parliament that by the late Act the Right of the ancient Possessors and kindly Tenents was reserved so that if they did not Confirm before the Year 1584. They were only lyable for a greater Feu-dutie wherein the Pursuer not being Superiour had no interest and found the Defenders Infeftment that his Authors were kindly Tenents and had a 19 year tack before the Feu Patrick and Joseph Dowglasses contra Lindsay of VVormistoun December 2. 1662. PAtrick and Joseph Dowglasses pursues Catharine Lindsay their Mother as Executrix to their Father for Compt and Payment of their share of the Executry and also the said Lindsay of VVormistoun as her Cautioner found in the Testament who alleadged no Process against him as Cautioner till the Executrix her self were first discussed Not only by Compt and Sentence but also by Appryzing of her Estate Poynding of her Moveables and if nothing can be condescended upon to Poynd and Appryze at least by Registrate Horning against her Person This being but a subsidiary Action as to the Cautioner The Lords Repelled the Alleadgeance and sustained the Accompt against both superceeding all Execution against the Cautioner till the Executrix were discussed as aforesaid which is both to the advantage of the Cautioner who may concur with the Executor who is only able to make the Accompt and it is also to the advantage of the Pursuers that the Cautioner resume not the Alleadgeances omitted by the Executor and so make new Process and new Probation as oft falls out Dam Marion Clerk contra Iames Clerk of Pittencrieff Eodem die MR. Alexander Clerk his Estate being Tailzied to his Heirs Male he obliged his heirs of Line to Renunce and Resign the same in favours of his Heirs Male which Disposition he burdened with 20000. Pounds to Dam Marion Clerk his only Daughter and Heir of Line The Clause bare 20000. Pounds to be payed to her out of the saids Lands and Tenement whereupon she having obtained Decreet James Clerk the Heir Male Suspends on this Reason That the foresaid Clause did not personally oblige him but was only a real burden upon the Lands and Tenement which he was content should be affected therewith and offered to Assign and Dispone so much of the Tenement as would satisfie the same The Lords found the Suspender personally obliged but only in so far as the value of the Tenement might extend in respect the Clause in the Disposition mentioned the Sum to be payed which imports a personal Obligement and whereby the Suspender accepting the Disposition is obliged to do Diligence to have sold the Tenement and payed her therewith and therefore found the Letters orderly proceeded superceeding Execution of the principal sum for a year that medio tempore he might do Diligence to sell and uplift George Steuart contra Mr. James Nasmith December 6. 1662. GEorge Steuart having obtained the Gift of the Escheat of one Hume pursues a general Declarator wherein compears Mr. James Nasmith having a Declarator depending of the same Escheat and alleadged he ought to be preferred having his Gift first past the Privy Seal and had the first Citation thereupon George Steuart answered that his Gift was first past in Exchequer and the Composition payed in March before the Rebel was Denunced on Mr. James Nasmiths Horning whose Gift past in Exchequer in June only and alleadged that he being postponed through the negligence of the Keeper of the Register whom he had oft desired to give him out his Gift it must be esteemed as truely then done and as to the Citation both being now pursuing he having done full Diligence could not be postponed and produced an Instrument taken against the Keeper of the Register bearing him to have acknowledged that the Gift had been sought from him formerly The Lords having considered the Instrument and that it was after Nasmiths Gift
constant custome the entertainment of the Defuncts Families was ever a burthen on their Moveables and upon their Executry The Pursuer answered though it was ordinarly retained off the Moveables yet the Heir was also lyable seing the Defunct was oblieged to entertain his Servants and Children at least to a Term but much more when there were no Moveables or where the Defunct was Rebel and the Donatar intrometted The Defender answered that it was novum to conveen an Heir on this ground and that the Alledgiance of there being no Moveables held not here neither is it relevant that the Moveables were gifted unless it had been declared before the Defunct's Death and Possession obtained otherwayes the Relict ought to have Alimented the Family out of the Moveables which would have liberat her from the Donatar and is yet ground against the Donatars The Pursuer answered she could not retain because the Donatar with Concourse of the Defender did put her brevi manu from the Defunct's House and all the Moveables The Lords having amongst themselves considered this Process did put difference between the Aliment of the Appearant Heir and the rest of the Family As to the Heir they found that albeit he was never Infeft yet as Appearant Heir he had Right to the Mails and Duties from his Fathers Death untill his own Death though the Terms had been to run before he was born being in utero and that the Defender in so far as medling with the Rents was lyable for the Appearant Heirs Aliment but for the rest of the Familie the Lords superceeded to give answer till diligence were done against the Donatar or other Intrometters with the Moveables Thomas Dumbar of Muchrome contra The Vassals of the Barrony of Muchrome Eodem die THomas Dumbar of Muchrome pursues Reduction and Improbation against the Vassals of the Barrony of Mochrume wherein all the Terms being run reserving Defenses Now at the last Term it was alleaged for Hay of Arriolland no Certification contra non producta against him because he had produced a Precept of clare constat from the Pursuers Father as Heir to whom he pursues Secondly It was alleaged that he had produced sufficiently to exclude the Pursuers Right produced and so till his Rights produced were discust and taken away there could be no Certification contra non producta The Pursuer answered to the first that the Precept of clare constat was but in obedience of a Precept out of the Chancellary As to the Ancient Rights produced if the Defender would rest thereon he needed not stand that Certification should be granted against any others not produced seing these produced are sufficient but if the Certification should be thus stopped the effect of all Improbations and Non-entries should be marred by dropping in new Writs from time to time and still disputing thereon and so dispute the Reasons before the Production were closed at least the Defender ought to alledge that the Writs produced are sufficient and declare he will make use of no further in this Process The Lords repelled the first Alleadgance on the Precept of clare constat being for obedience but found the second Alleadgance relevant hoc ordine and ordained the Defender to condescend upon his Rights by way of Defence to the Pursuer to answer thereto presently Collonel Iohn Fullertoun contra Viscount of Kingstoun Ianuary 8. 1663. COllonel Iohn Fullertoun having charged the Viscount of Kingstoun upon a Bond of borrowed Mony he suspends on these Reasons That the Collonel granted Assignation to Umquile Sir Alexander Dowglas to a Sum dew by Sir William Thomson and notwithstanding of the Assignation he uplifted the Sum himself at least his Brother by his order whereupon the Lady Kingstoun Daughter and Heir to the said Sir Alexander having Licence to pursue hath pursued the Collonel upon the Warrandice for Re-payment which Action being seen and returned and ready to be discust the Suspender craves Compensation thereon The Charger answered That the reason of Compensation is not relevant because it is not liquid the foresaid Sum not being confirmed by any Executor nor Sentence thereupon neither can it be instantly verified because it must abide Probation that the Collonel or his Brother by his order uplifted the Sum and there being only a licence to pursue the Debt cannot be established till a Confirmation Secondly Albeit the Compensation were relievable yet the Reason ought to be repelled because that any such Assignation was granted it was in trust to the Collonels own behove as is instructed by a missive Letter to the Charger produced It was answered for the Suspender that the Answers founded upon the missive Letter ought to be repelled because it was null neither being Holograph nor having Witnesses Secondly It is most suspect being written upon old blacked Paper The Charger answered that Letters amongst Merchands though not Holograph are sustained and ought much more among Souldiers especially between the Charger and Sir Alexander who then was his Lieutenant Collonel which is the more clear that there was never a question of it these 20 years neither was it contained in the Inventar of Sir Alexanders Papers though there were insert Papers of less moment but that it was gotten from one White for 40. or 50. Pound The Lords repelled the Compensation as not being liquid and found the Letters orderly proceeded superceeding Execution till Whitsunday 1663. But upon the other Process against the Charger The Lords considering the matter was old and dubious before Answer they ordained Witnesses to be examined hinc inde upon all Adminicles that could be adduced for or against the Trust. Lady Otter contra Laird of Otter Eodem die THe Umquhile Laird of Otter by his Contract of Marriage having provided his Estate to his Heir Male provided 5000 Merks to his eldest Heir Female when she should be capable of Marriage and an occasion offered whereupon the said Heir Female her Mother pursues the Heir Male for payment of the Sum and for payment of an Aliment to the Heir Female during the time she hath been with her Mother and in time coming till the provision be payed The Defender alleadged the Libel is no way relevant for Aliment he not being oblidged by the Contract for any Aliment but only for the Sum at such a time neither is there any Annualrent due for the Provision till the Term of payment Yet the Lords found that albeit that was no Annualrent nor provision for Aliment and that de jure Annualrent is but due ex pacto they would in this case allow an Aliment far within the Annualrent because it was all that the Daughters got for a very considerable Estate which was but a very small provision Patrick Nicoll contra Sir Alexander Hope Eodem die PAtrick Nicoll pursues a Declarator of Propertie of his Lands of Grantoun and that he had good Right thereto conform to the Bounds Lybelled It was alleadged for Sir Alexander Hope First All Parttes having interest
Renunciation of that priviledge of Wifes and it hath been frequently found that minors making faith cannot be restored lesionem conscientia ex juramento violato The Lords having debated the case at large amongst themselves found the Bond null notwithstanding of the Oath for they thought that where the deed needed no Restitution as in the case of minors these deeds are valid but the minor may be restored but in deeds ipso jure null where there need no Restitution an Oath cannot make that ane Legal deed which is none it was winne by a Vot or two many thinking that such priviledges introduced by Custome or Statute might be Renunced and much more sware against but that it were fit for the future that all Magistrats were prohibited to take such Oaths of Wifes or Minors who are as easily induced to Swear as to oblidge and if they did that they should be lyable to pay the Debt themselves Dumbar of Hemprigs contra Lady Frazer Eodem die MY Lady Frazer being first married to Sir Iohn Sinclar of Dumbeath next to the Lord Arbuthnet and last to the Lord Frazer Dumbar of Hemprigs as Executor confirmed to Dumbeath pursues her and the Lord Frazer her Hushand for his interest for delivery or payment of the Moveables of Dumbeath intrometted by her It was answered That she had Right to the half of Dumbeaths Moveables as his Relict and her intromission was within that half It was Replyed that she had only right to third because Dumbeath had a Bairn of the former Marriage who survived him and so the Executory must be imparted It was duplyed that that Bairn was for as familiat married and provided before her Fathers Death and so was not in familia and albeit if there had been any other Bairns in the Family that Bairns part would have accresced to them yet being no other It accresced to the Man and Wife and the Executory is bipartiti The Lords found the Defense and Duply relevant albeit it was not alleadged that the Tocher was accepted in satisfaction of the Bairns Part of Gear unless those who have Right would offer to confer and bring in the Tocher received in which case they might crave a third if the same were not Renunced oâ— the Tocher accepted instead thereof It was further alleadged for the Lord Frazer that he could not be lyable as Husband because his Lady being formerly Married to the Lord Arbuthnet he got the Moveables and his Successors should be â—yable at least in the first place The Lords repelled the alleadgeance but prejudice to the Lord Frazer to pursue the Successors of the former Husband for repetition as accords Mckenzie contra Iohn Ross. Eodem die JOhn Ross having Appryzed certain Lands belonging to Mckenzie there is a Pursuite of Compt and Reckoning intented for declaring that the Apprysing was satisfyed within the Legal It was alleadged that the Appryzer was not Comptable for more of the other Parties Minority then seven years because in the Act of Parliament 1621 Anent Appryzing it is so provided and albeit the meaning of the Act of Parliament was declared to be otherwayes by the Act of Parliament 1641. Yet that Declaration was contrary to the clear meaning by the general rescissory Act 1661. The Lords having considered the Rescissory Actâ— and the Reservation therein of the Right of Private Parties following upon the deeds of these Parliaments In Respect thereof and of the Custome this 20 years the Appryser useing to Compt for all found the Appryser Comptable for the whole Year of the Minority William Blair contra Anderson Eodem die William Blair as Assigny by the Wife and Bairns of Mr. David Anderson by his second Marriage pursues his Daughters both of the first and second Marriage as Heirs of Lyne for Implement of the second Contract of Marriage and the Daughters of the second Marriage offering to Renunce to be Heirs of Line but prejudice of their Provision by Contract of Marriage as Bairns of that Marriage The Assigney insisted against the Daughters of the first Marriage as lawfully Charged c. Who alleadged no Processe because the Provision by the Contract of Marriage insisted on run thus That Mr. David obliged himself and his Heirs-male Successors to him in his Estate but did oblige no other Heirs Ita est there is an Heir-male The Pursuer answered albeit Heirs-male were only expressed other Heirs were not excluded specially seing he bound himself so that the effect thereof would only be that the Heir-male should be lyable primo loco The Lords found the Heir-male lyable primo loco and the Heirs of Line secundo loco and found the Heir-male sufficiently discussed by an apprizing of the Clause of the Contract of Marriage in favours of the Heirs-male they not being Infeft as yet and having no other Right Scots contra Earl of Hume February 19. 1663. THe four Daughters of 〈…〉 Scot pursues an Ejection against the Earl of Hume out of some Lands belonging to them It was alleadged for the Earl absolvitor because he entered into Possession by vertue of a Decreet of Removing given at his instance Anno 1650. It was Replyed that the Decreet was only against the Pursuers Mother that they were never called nor decerned therein The Earl answered First That the Decreet was against the Mother to remove her self Bairns Tennents and Servants and her Daughters were in the Family being then young Bairns and he was not obliged to know them they not being Infeft but having only an old Right whereupon there was no Infeftment for 40. years the time of the Decreet The Lords in respect of the Defense restricted the Processe to Restitution and the ordinary Profits and decerned the Earl to restore them to Possession instantly but superceeded payment of Profits till both Parties were heard as to their Rights for they found that the Decreet of Removing could not extend to their Children and albeit they were not Infeft yet they might maintain their Possession upon their Predecessors Infeftment how old soever seing they continued in Possession Bessie Muir contra Jean Stirling Eodem die THe said Bessie Muir pursues her Mother as Executrix to her Father for payment of a Legacy of 8000. merks left in his Testament subscribed by the Defender and Confirmed by her after her Husbands Death The Defender alleadged absolvitor because she by the Contract of Marriage was Provided to the Liferent of all Sums to be Conquest and albeit she consented to the Legacy it was Donatio inter virum uxorem and for her Confirmation it cannot import a passing from her own Right but only her purpose to execute the Defuncâ—s Will according to Law especially she being an illiterat Person The Pursuer answered that this Donation was not by the Wife to or in favours of the Husband but of their Children which is not revockable and also the Confirmation humologats the same seing the Wife might have Confirmed and Protested to be withont prejudice of her
which the Lords found Relevant and Repelled the Defense but superceeded Execution until some time that the Defender might use any means he could for making this Sum to affect the Land Farquherson contra Gardiner Eodem die MR. Iames Farquherson having obtained a Decreet of Spuilzie against Iohn Gairdiner and others Gairdiner Suspends on this Reason that he medled with the Goods in question as a Souldier in a Party in Arms being then in the Regiment of the Master of Forbes under the Command of the Earl of Midletoun and therefore is freed by the Act of Indemnity The Charger answered that he oppons the Act Indemnifying only these who Acted by Warrand of any Committee of Estates or Commander or other Authority so that it is not Relevant unless the Suspender alleadge that as he was a Souldier in Arms so he had such Warrand and did apply the particulars to the publick use under which he served And it is offered to be proven that he took the Goods lybelled to his own House and made use of them to his privat use The Suspenders answered that this Reason stands Relevant as proponed because it is clear by the Act of Indemnity that all things done under any pretended Authority or Command are Indemnified and therefore there is a special Exception of privat Thefts and Robberies which confirms the Rule as to publick Pilledging in any War and if there were a necessity to every person to instruct the Command or Warrand of his Officer which was not accustomed to be in Writ the whole Act would be elusory so that it is sufficient that the thing was done in the way of a publick War otherwise all that was taken or converted to privat use of those that were either with Montrose or Glencairn might ly open to Pursuits notwithstanding of the Act of Indemnity The Lords after serious Consideration of this as a leading Case found the Reason of Suspension Relevant that the Defender needed not to prove that he had Warrant but that the Warrant was presumed if he proved he Acted with a Party in War against which they would admit no contrary Probation unless it were offered to be proven by the Defenders own Oath that he did without any Warrant converted the Goods to his own privat use Margaret Inglis contra Thomas Inglis Eodem die MArgaret Inglis having obtained a Decreet before the Commissars of Edinburgh against Thomas Inglis for giving her Security of 1000. pounds in Legacy left in her Fathers Testament and for payment of the Annualrent of the said Legacy Thomas Suspends on this Reason that the Legacy being left to be payed the one half at the Chargers marriage and the other half at the Death of the Defuncts Wife buire no Annualrent as neither doth any other Legacy much less this being in diem incertum which is equivalent to a Conditional Legacy For if the Defuncts Wife had Survived the Legatar or if she never Marry nothing will ever be due The Charger answered that this Legacy was in effect alimentar though not expresly left eo nomine and therefore ought to be profitable and that the Lords had been accustomed to give Annualrent in such cases as in the case of the Lady Otter and her Daughters The Suspender answered that the case was far different these being lawful Daughters and their Provisions being in lieu of an Estate of Land and this Charger being but a Bastard and come to that age that she may serve for her Maintainance The Lords considering that the one half of the Sum was payable at the time of the Chargers Marriage being a Condition in her own power and that it was not favourable to put her to a necessity of Marry Therefore they sustained Annualrents for that half but not for the other Brown contra Lawson Iuly 6. 1664. ALexander Brown having obtained a Decreet against William Lawson as vitious Intrometter with the Goods of umquhil William Lawson of New-milns he Suspends and alleadges the Decreet was unjustly given because it beares that he excepted upon a Disposition made by the Defunct for an Onerous Cause and an Instrument of Possession of the Goods before his Death The Charger answered that the Decreet did bear that the Suspender did judicially acknowledge that there was no true Delivery of the Goods The Lords found this collourable Title sufficient to purge the passive Title of vitious Intromission providing the Defender Confirmed within four moneths for they thought the Defuncts Disposition in articulo mortis was rather as a Testament or Legacy in satisfaction of the defenders Debt then as actus inter vivos Iohn Miln contra Hoom. Iuly 7. 1664. JOhn Miln Mason having Charged Sir James Home of Eccles for payment of a Sum of Money due by Bond he Suspended and alleadged that he had the benefit of the Act betwixt Debitor and Creditor as to personal Execution seing he had payed a years Annualrent and had consigned a Bond of Corroboration joyning the rest of the Annualrents to the principal The Charger answered the Suspender could not crave the benefit of the Act because he had not found caution for the principal and annual conform to the said Act for his naked Bond of Corroboration without Caution could not be interpret Security The Lords found the Suspender behoved to give security either by Caution or Infeftment Ogilbie and Grant contra Ker. Eodem die THere being a Charge in the Name of Iames Ogilbie and William Grant contra Mr. Andrew Ker Minister on this ground that by a minut of Contract of Alienation Ogilbie had sold to Ker certain Lands and Ker was expresly Bound by the minut to pay this Grant and others in part of the price of the Land certain Debts due by Ogilbie to them Ker Suspends upon this Reason that he had satisfied Ogilbie and obtained his Discharge Grant answered that by the foresaid Clause contained in the Minut he had acquired right to the Sum in satisfaction of his Debt which Ogilbie his Debitor could not take away without his consent especially seing the Minut took effect and the Suspender by his Missive Letters after the Date of this Discharge Writ to the Laird of Pitmeddin who was Cautioner to Grant that he would satisfie the Debt The Suspender answered that the Clause in favour of Grant who was no Contracter could not give him a Right First Because it was never a delivered Evident to Grant 2ly Because it was but a Mandat whereby Ogilbie the Contracter did order a part of the Sum to be payed to Grant which Ogilbie might recal at his pleasure as he might have annulled the Bargain and destroyed the Writ especially seing nothing had yet followed And as for the Letters they were not Written to Grant but to a third Party The Lords found that seing the Bargain took Effect the Clause in Grants favour was not a simple Mandat but a Delegation whereby Ogilbie constitute Ker his Debitor to be Debitor to Grant his Creditor which needed no
the Relicts part especially if their be no Heretable Debt due to the Defunct or if the Heretable Debts due by him exceed these due to him The Lords found that seing the Relict could have no benefit of Heretable Debts due to the Defunct being excluded by the Act of Parliament 1641. renewed 1662. Therefore she would have no detriment by such Heretable Debt due by the Defunct whether they exceeded the Heretable Debts due him or no. In this report it falling into consideration whether the Ann would only belong to the Wife there being no Children or half to the Wife and half to the nearest of Kin they thought it would devide equally betwixt them though it was not resâ—lvâ—d whether it needed to be confirmed or would be lyable to the Defuncts Debt Lady Clerkingtoun contra Stewart Iuly 20. 1664. THe Lady Clerkingtoun pursues the Heirs of Umquhile David Stewart Son to the Laird of Blackhall for the Sum of 2000 merks due to her Husband It was alleadged for Walter Stewart Brother to the Defunct Defender no Process because the Heir of Lyne of the Defunct David Stewart was not called in so far as David being the only Son of the second Marriage and having neither Brother nor Sister of that Marriage his Heir of Lyne could not be Walter Stewart youngest Son of the first Marriage but the Heir of the Eldest Son of the first Marriage according to Craigs Opinion de successionibus The Lords found that in this case Walter as the next immediat preceeding was both Heir and of Conquest and not the eldest Brother In this Process it was also alleadged that this Sum was a Clandestine Fraudulent Paction contrare to the Contract of Marriage betwixt the Defunct David Stewart and the Defenders Daughter whereby 10000 merks being Contracted with her in Tochar and Blackhall granted a proportionable Liferent thereto yet under hand without Blackhalls knowledge his Son was induced to give Bond for this 2000 merk to take away 2000 merk of the Tochar and it was remembred by some of the Lords that in the like Case a discharge of a part of a Sons Provision granted to his Father contrair to his Contract of Marriage was found Fraudulent and null by exception The Lords did not decyde but rather desired the Parties should agree but thought this was an unfavourable Act of dangerous consequence Petrie contra Paul Eodem die PEtrie pursues a Removing against Paul who alleadged absolvitor because she possessed by vertue of her Infeftment It was replyed the Infeftment was null by exceptionâ— as following upon a Contract of Marriage which Marriage was dissolved within year and day It was duplyed that the Infeftment behoved to stand valid being in recompence of her Tochar untill her Tochar was repayed Which the Lords found relevant unless it were alleadged that the Tochar was not payed to the Husband but in her own hands or her Debitor Scot of Braid-meadow contra Scot of Thirlstoun Iuly 21. 1664. SCot of Braid-meadow pursues Scot of Thirlstain his Curator for Compt and Reckoning who alleadged absolvitor because the Pursuer having conveened the Defender before the Sheriff to compt and Reckon and to Renunce his Curatorie he was â—hen decerned to Renunce the Office and did Compt for bygones The Pursuer answered no respect to that Decreet because it was during his Minority In which time the Defender had a competent defense that he was not comptable and for the Renunciation of the Office It was a great Lesion to the Pupil which the Curator should not have yeelded to but proponed a Defense against the same that he could not pursue his Curator to Renunce unless he had condescended and instructed malversation The Defender answered that he had just Reason to suffer Sentence because his Pupil was Irregular and medled with his own Rents by force and mispent the same The Lords Notwithstanding of the Decreet ordained Compt and Reckoning and found that the Decreet could not liberat the Curator even for his Omissions after but reserved to the Defender before the Auditor to condescend what deeds the Pupil had done before as being relevant pro tanto Alexander Livingstoun contra Heirs of Lyne and Daughters of the Lord Forrester Iuly 22. 1664. ALexander Livingstoun as Assigney to a Debt awand by the deceist Lord Forrester having charged his Daughters and Heirs of Lyne and they Renunced whereupon he pursues Adjudication Compearance is made for the Lord Forrester who produced his Infeftment and alleadged the Lands therein comprehended could not be Adjudged because the Defunct was denuded thereof before his Death and as he could stop the Apparant Heirs if they were craving themselves to be entered Heirs to their Fathers so the Adjudger in their place could not crave Infeftment The Pursuer answered the Defense was not Competent hoc loco and the Defender would not be prejudged by any Infeftment or Adjudication if he had sufficient Right And therefore as in an Apprysing he might Appryse omne jus that the Defunct had and thereupon be Infeft So he hath the like benefit in Adjudication which hath been ordinarly sustained periculo petentis The Lords sustained the Adjudication as to all Right the Appearand Heirs could have had in the Lands but not as to the Property and therefore would not decern the Puâ—â—uer to be Infeft but sustained the Decreet of Adjudication that thereby he may have Right to Reversions and Clauses resolutive or other Personal Clauses which they thought would be sufficiently carried by the Decreet of Adjudication without Infeftment and would not be prejudged by another Adjudger obtainer of the first â—nfefment but this was besyde the Ordinar Course wherein Adjudications use always to be granted periculo petentis that thereby omne jus may be carried and as in Appryzings it hath been ordinarly found that the Superior must Infeft the Appryzer to compleat his Legal diligence albeitâ—he Superior instruct that himâ—elf hath a Right to the Lands Because his receiving of the Appryzer in obedience will not prejudge his Right and it were unreasonable to force an Appryzer or Adjudger to dispute the Poynt of Rightâ— when all the Writs and Evidences are in their Adversaries hands and the Creditors being meir Strangers who upon their Appryzings or Adjudications can only have Title to exhibition of the Rights and afterward be oblidged to dispute but here the Case was notour to many of the Lords being near the Town of Edinburgh that the Lord Forrester had Infeft his Goodson in his Estate Lord Loure contra Lady Craig Eodem die LOrd Loure being Infeft in the Estate of Craig pursues for Mails and Duties Compearance is made for the Lady Craig Liferenter who alleadges she stands Infeft and in Possession of the Lands The Pursuer answered that any Infeftment as to that part thereof that was not for fulfilling of the Contract of Marriage was Fraudulent and in Prejudice of lawful Creditors and so null by exception conform to the Act of Parliament
possessed so long as to attain the benefit of a Possessory Judgement which would defend him not only for bygones but in time coming till his Right were Reduced yet before Citation he was bona fide possessor fecit fructus consumptos suos which the Lords found relevant 4ly The Defender alleadged that by the Pursuers Contract he was to be comptable for the superplus of the Mails and Duties of the Lands more then payed his Annualrent and now the Defender coming in place of the Heretor the Pursuer is comptable to him for the superplus The Pursuer answered that albeit he was comptable he might detain those Annualrents and impute them in his Principal Sum. The Lords having considered the Contract found the Pursuer ought to be Re-possessed but that he could not detain the superplus but that he behoved to be comptable yearly to the Defender conform to the Contracte Margaret Mcgil contra Ruthven of Gairn November 22. 1664. MArgaret Mcgil pursues a Reduction of her first Contract of Marriage with Umquhil Patrick Ruthven younger of Gairn upon two Reasons First because it was post nuptias and so donatio inter virum uxorem stante matrimonio revocabilis 2dly Because she was Minor and enorlie leised in so far as she disponed to her Husband and the Heirs of the Marriage which failling to his Heirs 8000 lib. of money and above and the half of some Tenements in Edinburgh worthie 1100 lib. yearly in leiu whereof her Liferent was only of 8. or 10. Chalders of Victual and of her own Tenements but she did not â—etain to her self the Liferent of the Money or any Part of the Stock whereby she is leised in that if the Heirs of the Marriage fail the Money and the Lands goes to the Heirs of the Husband and returnes not to hers and that her Provision being worth 20000 lib. she ought at least to have had the double of the Annualrent thereof in joynter The Defender answered to the first Reason that it was no way relevant seing this was expresly a Contract of Marriage although after the Marriage there being no Contract before it is alike as if it had been before the Marriage and to the second Reason is not relevant unless it were enorme lefion for there being no Portion or rule in Tochars and Joynters but that some get a Joynter equivalent to the Aunualrent of their Tochar some half as much more some double and it being ordinar that Tochars are provided to the Heirs of the Marriage which failling to the Mans Heirs here was no enorme lesion or any thing extraordinar although there were an equality The Pursuer being a Burgess Daughter and her Husband a Gentleman of an ancient Family Quality should be compensed with Means 3dly The Pursuer since she was Major had Homologat the Contract by setting her Joynter Lands and lifting the Rent thereof The Lords having before answer heard Probation of the Provision and of the Joynture and having at length considered the whole Cause They first Repelled the Defense of Homologation because the Pursuer was not quarrelling what she got but what she gave and therefore requiring Rectification to have more They also sustained not the first Reason of Reduction and found the Contract not to be a Donation betwixt Man and Wife and they found the second Reason of Reduction Relevant in so far as extended to an enorme lesion beyond the latitude of Contracts of Marriage amongst such Persons and therefore found it not Relevant to reduce the Fee of the Wifs Provision but found it Relevant to add to her a further Conjunct-fee and therefore Rectified the Contract in so far as she had Assigned her Sums of Money without reserving her own Liferent thereof and found that seing the Fee returned not to her she should have the Liferent of her own Portion and her Provision out of her Husbands Estate which is Eight or Ten Chalder of Victual further Malcome Scot contra Laird of Bearfoord November 23. 1664. BEarsoord having borrowed 4000 merk from Malcome Scot in Anno 1652. By his Contract he is oblidged to pay the Annualrent thereof and the Sum at certain Terms which Contract bears That for Malcoms better Security Bairford sets to him certain Aikers of Land for 53. Bolls of Victual yearly at Malcolms option either to pay the Bolls or to pay twenty shilling less then the Candlemess Fiers Bairford alleadged that Malcolm ought to compt for the full Fiars and that the Diminution of twenty shilling was Usurary given Malcolm more then his Annualrents indirectly by that abatement and therefore both by Common Law and specially by the late Act of Parliament betwixt Debitor and Creditor that Addition was void It was answered that there was here no Usurary Paction But it was free to Malcolm Scot to take the Lands by his Tackâ— for what Terms he pleased and he might have taken it for half as many Bolls or at four merks the Boll for each Boll which would have been valid 2ly The Case of the Act of Parliament meets not because that is only in Wodsets here there is neither Infeftment nor Wodset but a Personal Obliegement and a Tack 3ly There is a just reason to abate so much of the Boll because the Tennent behoved to be at the Expense of the Selling thereof and at the hazard of these that bought if they failed in payment The Lords Sustained the Tack without Annulling the Abatement and found it not Vsurary Halyburtoun contra Porteous Eodem die HAlyburtoun having Married a Widow in the Potter-raw there was no Contract of Marriage betwixt them but he gave her first an Infeftment in all the Lands he had the time of the Infeftment and thereafter he gave her a second Obliegment providing certain Lands to him and her and the Heirs betwixt them which â—ailzing to devide betwixt their Heirs Her Heirs pursuing to fulfill this Obliegment Halyburtoun alleadged it was donatio inter virum uxorem and now he Revocked Which the Lords formerly found Relevant unless the Pursuer condescended that this Infeftment was Remuneratory for a proportionable Provision brought by the Wife and after condescendence having considered what the Wife brought and what of it was before the first Infeftment and what interveened betwixt the first and the second Albeit whatever fell unto the Wife was moveable and would have belonged to the Husband jure mariti Yet if it had been of that value to have Served both the first and second Provision They would have Sustained both as Remuneratory in gratitude to the Wife but they found no such thing condescended on or Instructed and therefore they Reduced the second Provision Collin Hay contra Magistrates of Elgin Eodem die COllin Hay pursues the Magistrates of Elgin for the Debt of a Rebel Escaping out of their Prison They Alleadged Absolvitor First Because it was in the time of Richard the Usurper 2ly The Rebel Escaped by breaking through the Roof of the Prison and
Heir to the Defunct as his Goodsirs Brothers Oye and having obtained Certification contra non producta there being nothing produced but the Retour Service Brive and Executions but no Warrand of the Service either bearing the Testimony of Witnesses adduced to prove the propinquity of Blood or bearing that the Inquest of proper knowledge knew the same The Pursuer now insists in his Reason of Reduction that the Service is without Warrant and without Probation by Writ or Witnesses It was answered non relevat as it is lybelled bearing only that it is without probation by Writ or Witnesses whereas it might proceed upon the proper knowledge of the Inquest or any two of them The Pursuer answered that neither were there any Probation by Writ or Witnesses nor by the Minuts of Processe bearing that the Persons of Inquest of their proper knowledge did Serve The Lords considering that the Minuts of these Process upon Service for Serving general Heirs which may be before any Judicature use not to be exactly keeped would not instantly Reduce for want of the Warrants but ordained the Persons of Inquest to be produced to condescend whether they proceeded upon proper knowledge and what was the Reason of their knowledge Mc. Gregor contra Menzies Eodem die THere being a question arising betwixt Mc. Gregor and Menzies upon a Decreet Arbitral The Lords found the Decreet Arbitral null proceeding upon a Submission of this Tenor submitting to the Arbiters ay and while they meet at any Day and Place they found convenient with power of Prorogation without any particular Day for giving their Sentence blank or filled up because the Decreet Arbitral was not within a year of the Date of the Submission nor any Prorogation during that time Dam Elizabeth Dowglass and Sir Robert Sinclar of Longformacus contra Laird of Wedderburn Eodem die THe Lady Longformacus as Heir to her Goodsire William Dowglas of Eveling who was Donatar to the Escheat and Liferent of Iohn Stewart of Coldinghame pursues the Laird of Wedderburn for the Teinds of his Lands which Teinds pertained to the Abbots of Coldinghame The Defender alleadged absolvitor because he has Tack to run flowing from the Earl of Hoom who was Infeft in the Lordship of Coldinghameâ— and before that was Commendator thereof by His Majesty 2ly Iohn Stewart had ratified all Rights flowing from the Earl of Hoom and consequently this Tack after which the Donatar of his Escheat could not challenge the same for the Ratification is equivalent as if the Tack were granted by the Ratifier The Pursuer answered that the Defense upon the Tack and the Earl of Hooms Right ought to be Repelled because the Earl of Hoomes Right is Reduced by the Parliament 1621. on this consideration that the Earl of Bothwel being Commendator of Coldinghame had demitted the same in his Majesties hands whereupon the said Iohn Stewart his Son was provided by the King Commendator of Coldinghame and thereafter the Earl of Bothwel being Forefault the said Iohn and his other Children were Dishabilitate and declared incapable to bruik and joy his Land and Heritage or to succeed to any Person within this Realm by Sentence of Parliament whereupon the King provided the Earl of Hoom to be Commendator of Coldinghame and thereafter on the Earls own Resignation Infeft him therein in an erected Lordship and thereafter in the Parliament 1621. The King and Estates upon express consideration that Iohn Stewart was an Infant no wayes accessory to his Fathers Crimes did therefore annul his Dishabilitation and Rehabilitate him and declared that he should have Right to the Abbacy of Coldinghame in the same manner as he had before his Dishabilitation and Resciâ—ded all Rights and Infeftments of the said Abbacy granted by His Majesty to any Person of the said Abbacy since the said Dishabilitationâ— in so far as the samine might be prejudicial to Iohn Stewart's Provision that he had before After all which Iohn Stewart upon his own Resignation was Infeft in the Property of Coldinghame so that the Earl of Hoom's Right being Reduced in Parliament and falling in consequence with Iohn Stewarts Dâ—shabilitation whereupon it was founded the Defenders Tack following thereuponâ— falls also in Consequence as was already found by the Lords in Anno 1628. betwixt the said William Dowglas of Evelen and the Laird of Wedderburn conform to an Interlocutor Extracted and produced which is sufficient inter easdem partes and cannot be questioned super eisdem deductis now albeit at that time Wedderburn past from his compearance and so the Decreet against him was in absence yet the Interlocutor was ordained to be Extracted against him by the Lords which is sufficient and as for the Ratification of the Tacks granted by the Earl of Hoom the samine was after Iohn Stewart had Resigned his Comendatorship and before he was Infeft in Property The Defender answered First That the said Reduction of the Earl of Hoom's Right was without calling of the Defender or of the Earl of Hoom himselfâ— 2ly It mentions no particular Right or any Person but in general all Right and so is but a privat Right impetrat from the Parliament without hearing of Parties and therefore falls under the Act of Parliament salvo jure And as to the former Interlocutor of the Lords The reason why the Lords sustained the said Rescissory Act was because they found themselves not competent to Judge as to Sentences of Parliament or to annul the same upon the not calling of the Parties in respect that the Act salvo 1621. relates to Ratifications but not to such Sentences as this but by Act salvo 1633. It is expresly declared that that Act and all former Acts salvo should not only extend to Ratifications but to all other privat Acts impetrat without hearing of Parties and prejudicial to other Parties Rights and therefore now the Lords ought to proceed upon the Parties Right without consideration of that Act Rescissory 2ly The Act of Parliament Prohibits and annuls all Restitution of Forefaulture by way of Grace in so far as may be prejudicial to these who bona fide acquired Rights from the King medio tempore and so the Rehabilitation of Iohn Stewart cannot prejudge the Earl of Hoom or the Defender who had Right from the Earl It was answered for the Pursuer that there was no difference in the two Acts salvo jure albeit the last was more express then the first containing the same in effect 2ly Iohn Stewart being Dishabilitat by the Parliament without Citation or Crime might justly be Rahabilitate eodem modo without Citation and that not by way of Grace but in Justice as not accessory to the Crimesâ— and albeit Forefaultures may not be taken away by way of Reduction by the Act of Parliament 1584. cap. 135. yet that cannot be extended to the Dishabilitation of their Children so that the Parliament doing nothing prejudicial to any Parties Right but restoring Iohn Stewart to his just Right eo
Procurator that might infer his being informed or having Warrand but only his taking a day to produce they would not sustain the Decreet unless the Charger instructed the same by proving the quantities White contra Horn. Novemb. 25. 1665. IN a Competition between White and Horn the one having Right by progresse to the Property of a piece Land and the other to an Annualrent forth thereof It was alleadged for the Proprietar First That the Annualrent was prescribed no Possession being had thereupon above fourty years 2ly The Original Right produced to constitute the Annualrent is but a Seasine without a Warrant and albeit the Common Author have given Charter of Ratification thereof yet it is after the Proprietars Seasine given by the Common Author to his Daughter propriis manibus It was answered for the Annualrenter to the first That the Prescription was interrupted by Citations produced used upon a Summons of Poinding of the Ground before the Baillies of the Regality of Dumfermling where the Lands ly As to the second that the Confirmation granted to the Annualrenter is prior to any Charter Precept or other Warrant granted to the Proprietar for as for the Seasine propriis manibus that has no Warrant produced The Proprietar answered that the Interruption was not Relevant because the Executions were null in so far as the Warrant of the Summons bears to Cite the Defender Personally Or otherwise upon the Ground of the Land or at the Mercat Cross or Shore of Dumfermâ—ing whereupon such as were out of the Countrey were Citedâ— and not upon 60. dayes but 25. which Reasons would have excluded that Decreet and therefore cannot be a legal Interruption As to the other albeit the Pursuers first Seasine want a Warrant yet it hath been cled with natural Possession and the Annualrentars hath not The Lords Repelled both these alleadgences for the Proprietar and found the Executions sufficient to interrupt albeit there were defects in them that might have hindred Sentence thereupon especially in re antiquâ the Lands being in Regality where the custome might have been even to Cite Parties absent out of the Countrey at the head Burgh of the Regality and the Shore next thereto and as the Proprietars Right was not Established by Prescription so they found that Possession could not give a possessory Iudgement to the Proprietar against an Annualâ—entar which is debitum fundi Mr. Iames Peter contra Iohn Mitchelson Eodem die MR. Iames Peter Minister of Terregh pursues Mitchelson for a part of his Stipend due out of the Defenders Lands who alleadged no Process till the Pursuer produced a Title to the Defenders Teinds seing he brooked them by a Tack It was Replyed he offered him to prove seven years Possession as a part of the Stipend of Terreghs Which the Lords sustained without any Title of Possession Bruce contra Earl of Mortoun Novemb. 28. 1665. IN an Action for making arrested Sums forthcoming between Brucâ— and the Earl of Mortoun The Lords found that the Summons behoved to be continued seing they were not past by a special priviledge of the Lords to be without continuation albeit they were accessory to the Lords Anterior Decreet against the principal Dâ—bitor which they found to be a ground to have granted the priviledge of not Continuation if it had been desired by a Bill at the raising of the Summons but not being demanded They found quod non in erat de jure Younger contra Iohnstouns Eodem die PAtrick Porteous having a Tenement of Land in Edinburgh provided his Wife thereto in Liferent and dyed before the year 1608. his Wife lives and Possesses as Liferenter Yet in Anno 1608. one Porteous his Brother Son was Served and Retoured Heir to him and Infeft as Heir and Disponed the Land which is come through three several singular Successors to Iohnstouns who are Infeft therein as Heirs to their Father in Anno 1655. Youngâ—r having acquired aâ— Disposition from Stephanlaw Porteus Residenter in Polland causes Serve the said Stephenlaw as nearest Heir to the said Patrick whereupon Stephenlaw is Infeft and Younger is Infeft There are now mutual Reductions raised by either Parties of others Retours and Rights wherein Younger alleadging that his Author Stephenlaw Porteous was the nearest of Kin in so far as Patrick the Defunct had four Brethren and Stephen Law Porteous was Oye to the eldest Brother whereas the other pretended Heir was Son to the youngest Brother which he offered him to prove It was answered for Iohnstouns Absolvitor from that Reason of Reduction because they had Established their Right by Prescription in so far as they had a progress of Infeftments far beyond the space of fourty years cled with Possession by the Liferenter whose Possession behoved to be accounted their Possession because the Act of Paâ—liament anent Prescription bears that the Person Infeft being in Possession by himself or by his Tennents or others deriving Right from him and therefore the Liferenters Possession is alwise the Fiars 2ly By the first Act of Parliament anent Prescriptions of Retours they prescrive if they be not quarrelled within three years And by the last Act of Parliament 1617. anent the Prescription of Retours they are declared to be prescrived if they be not pursued within twenty years And by the general Act of Prescription 1617. There is a general Clause that all Reversions Heretable Bonds and all Actions whatsomever shall prescrive if they be not followed within fourty years By all which Stephenlaw Porteous not being Retoured till the year 1655. nor having moved any Action against the first Retour This Action of Reduction and all other Actions competent are prescribed It was answered for Younger that he being Heir to maintain the right of Blood which is the most important Right competent by the Law of Nations no Statute nor positive Law can take it away unless it be express and evident for the right of Blood can never prescrive seing it is certain that a man may serve himself Heir to his Predecessor though he died a 1000. years since if he can instruct his Service And as for the Acts of Parliament alleadged upon they cannot take away any Right of Blood for the first Act of Prescription on three years expresly bears to extend to these within the Countrey as Stephenlaw was not and the last Act is expresly only in relation to Retoures to be deduced thereafter but this first Retour quarrelled was deduced long before viz. in Anno. 1608. As for the general Act of Prescription seing it mentions not Retoures but only Infeftmentsâ— Reversions and Heretable Bonds The general Clause of all Actions whatsomever ought not to be extended to Retoures especially seing the meaning of the Parliament appears not to have been extended by them to Retoures because the very next Act doth specially Order the prescription of Retoures As to the Iohnstouns Infeftments they have not the benefit of Prescriptions never being cled with Possession For the Liferenters
charges the Parochiners of Craufoord Compearance is made for the Bishop of Edinburgh alleadging that this was a Patrimonial Kirk of the Bishoprick of Edinburgh and so was not comprehended in the late Act of Parliament anent vaccand Stipends The Lords repelled the Defense and preferred the Collector of the Vaccand Stipends for they found the Act was general without any such exception Mr. John Thomson contra Mckitrick Eodem die MR. John Thomson pursues Mâ—kitrick for reduceing of an Infeftment of some Tenements in Dumfries upon an appryzing on these Reasons First That the appryzing was null proceeding upon a Bond without Requisition or Charge without which the Heretable Bond could not become moveable 2dly Infeftment being within Burgh was not given by the Baillies and Town Clerk 3dly That it was neither Registrate in the Town Books nor in the Register of Seasings of the Shire It was answered to the First that the Bond bare no Clause of Requisition but bore on the contrare to be payable without Requisition and so as Moveables the Defender might have poynded therefore without Charge so might Lands be Appryzed to the Second there being no Magistrats nor Town Clerk in Office at the time of this Seasine and the Defender being an Appryzer necessitat to do Diligence took Seasine by the Sheriff Clerk which was necessar and sufficient To the Third the Act of Parliament requires no Registration of Seasines within Burgh and albeit they be ordinarly to be found in the Town Books yet if that should be neglected they would not be null The Lords repelled the first Reason and found no necessity of a Charge and they had formerly repelled the second Reason in respect of the Answer made thereto and did also repell the third Reason Earl of Southesk contra Marquess of Huntlie Iuly 23. 1666. THE Earl of Southesk and the late Marquess of Argyl being Cautioners for the late Marquess of Huntly for the Tochers of the Daughters of Huntly they got an Infeftment of the Lands of Badzenoch for their relief bearing that according as they should be distrest they should have access to the Rents of the Lands in so far as might pay the Annualrent of the Sum which they should be distrest for whereupon they were Infeft in Anno 1643. And thereafter Southesk was distrest in Anno 1653. Whereupon in Anno 1655. He pursued an Action of Maills and Duties upon the said Infeftment of relieff against the said Lord Argyl who was in Possession and my Lord Argyl having long before granted an Bond of relieff to Southesk he used Horning and Caption thereupon in Anno 1655. and in Anno 1658. he used Inhibition upon the said Bond against Argyl who in Anno 1658 Entered in a new Contract with Southesk whereby in Corroberation of the first Infeftment he granted him a Wodset of the Lands of Enzie with a Back-tack by vertue whereof Southesk uplifted several years of the Back-tack Dutie Southesk now pursues the Marquess of Huntly and his Tenents for declaring of his Right and payment of the Maills and Duties it was alleadged for the Defenders First absolvitor because the Marquess of Argyl hath been Retoured to have possest the Lands of Badzenoch peaceably by the space of 5 years before his Forefaulture which was in Anno 1661. Conform to the Act of Parliament 1584. By vertue thereof this Marquess of Huntly as the King's Donatar to the Forefaulture in so far as concerns the Estate of Huntly has undoubted Right and needs not dispute what Right Southesk had before the five years It was answered for the Pursuer First That the Act of Parliament 1584 ought not now to take effect because by the late Act of Parliament 1617. Seasine and Reversions are appointed to be Registrat otherwise they are null and therefore the ground of the Act of Parliament 1584. viz. The abstracting of Evidents Ceasing the said Act it self must also cease 2dly The said Act can only take place where it is not constant what Right the Forefault Person had but that he was repute to be the ancient Heretor of the Lands but where the Forefault Persons Right is known to have been Beations Compryzing or this Conjunct Right granted to himâ— and the Pursuer for their Cautionrie presumptio cedit veritati and the Right must only be holden to be such a Right as truly it was 3dly The five years Possession being in effect a Prescription in favours of the King and his Donatar whatsoever would interrupt any other Prescription must interrupt this as if within the five years the Pursuer had intented a Reduction of the Forefault Persons Right or an Action for Maills and Duties or had required for his Sums and charged thereupon all these would be sufficient interruptions against this quinquennial Possession and would take away the presumption of Collusion or abstracting 4thly The five years possession by the Act of Parliament bears expresly to be peaceable so that if it was turbata possessio it would not be enough and being once a troubled possession by any legall interruption after the said interruption that subsequent possession ceases not to be a troubled possession though there be no furder interruption within the 5 years because interruption once used endures for 40. years Ita est Argyls possession was troubled by pursuits to compt for the Maills and Duties of these Lands upon this Right and that within a year or two before the five and likewise within the 5. year the Marquess of Argyl did corroborat this Right and in corroboration thereof granted Wodset of the Lands of Enzie for the Sums accummulat by vertue whereof the Pursuer within the 5. years was in Possessionâ— by uplifting the Back-tack Dutie which being a Cumulative Right possession thereon is valid for both The Defender answered that his Defense upon the Act of Parliament stood valid notwithstanding of all the Replyes because the Act is clear and unrepealled that 5. years peaceable possession of the Forefault Person gives the King unquestionable Right it being retoured by an Inquest as now this is And as to the troubling of the possession no Deed done before the 5 years can have any effect because as the 5 years cut off the most Solemn anterior Rights much more a Citation or other Interruption and as to the Interruptions within the 5. years they are only two one is an Inhibition against Argyl which proceeds not upon this Infeftment but upon a Personal obligement by Argyl to relieve the Pursuer neither does it at all relate to the possession nor any other Action but only as an Inhibition prohibits Alienation And as for the Contract of Wodset with Argyl it is post commissum crimen and so cannot prejudge the Donatar It was answered that albeit the Forefault Persons Deeds being voluntar post commissum crimen cannot be effectual yet where it is upon a cause anterior to the Crime viz. Argyls Intromission by the Infeftment of Relieffâ— and the distress occurring against the
Dispute whether his Fathers Authors were Infeft or whether his Father had disponed or not until his Majority that he might seek out his Evidences and defend himself Reid contra Ianu. 19. 1667. IN a Process betwixt Reid and whereof the Title was a Service of the Pursuer as Heir deduced before the Bailzie of Regality of Spenzie It was alleadged by the Defender that this Title was not sufficient seing the Service was not retoured It was answered that the Service being within the Regality and of a Person dwelling there neither needed nor used to be Retoured in respect the Service it self was in Record in the Bailzies Books It was answered that albeit a special Service of Lands within the Regality needed not be Retoured in the Kings Chancellary because there was no Precept thence to issue but the Service within the Regality was sufficient that thereupon the Precepts of the Lord of the Regality might proceed against the Superiour within the Regality who was Infeft but in a general Service which may be before any Judge whether the Heir Reside in his Jurisdiction or not there is no difference betwixt a Regality and any other Court but all must be Retoured in the Chancellary It was answered that the Regality having their own Chapel and Chancellary were not oblieged to Retour it in the Kings Chancellary Which the Lords found Relevant and sustained the Service Isobel Findlason contra Lord Cowper Ianu. 22. 1667. ELphingstoun of Selmes having given a Precept to Isobel Findlason and direct to the Lord Cowper that he should pay to the said Isobel a Sum owing by Selmes to her and receive Selmes Bond from her upon the foot of which Precept the Lord Cowper directs another Precept to Iames Gilmore to pay the said sum the VVoman not being payed pursues both the Lord Cowper and Iames Gilmore for payment It was alleadged for Iames Gilmore absolvitor because he had not accepted the Precept neither was there any ground alleadged for which he was oblieged to accept or pay the Lord Cowpers Precept Which the Lords found Relevant It was alleadged for the Lord Cowper that the giving of the Precept should not obliege him seing it mentioned not value received or any other Cause and therefore resolved into a meer desire It was answered that the giving of the Precept was an acceptance of Selmes Precept and behoved at least to import a Donation to be made effectual by the Drawer of the Precept or otherwise an Intercession or Expromission for Selmes The Lords sustained the Process and found the Lord Cowper lyable by the Precept to pay in case of none acceptance especially seing it was consequent to Selmes Precept direct to Cowper Mr. Iohn Mair contra Steuart of Shambelly Eodem die MR. Iohn Mair Minister of Traquair having obtained Decreet against Shambellie and the Parochioners to pay him 545. merks Expended for Reparation of the Manse and to meet and Stent themselves for that Effect upon which Decreet he took Shambellie with Caption whereupon he gave him a Bond of fourscore pounds for his part Shambellie now Suspends the Bond on this Reason that albeit it bear borrowed Money he offers to prove by the Chargers Oath that it was granted for his part of that Stent and that his proportion thereof casting the Sum according to the Valuation of the Paroch would not exceed fourty merks and that he granted this Bond for fear of Imprisonment It was answered the Reason was not Relevant to take away the Suspenders Bond being major sciens prudens and there was here no justus metus because the Caption was a lawful Diligence so that the giving of the Bond was a Transaction of the Parties which is a strong Obligation It was answered that the Suspender when he was taken at his House was sick and unable to travel yet the Messenger would carry him away and being at the Tolbooth gave the Bond rather than in that Case to go to Prison which was an irregular force and a just cause of fear but this addition was not proponed peremptory The Lords Repelled the Reason of suspension unless the said addition were also instructed instanter otherways it could only be reserved by Reduction ex metus causa Sir Henry Hoom. contra Tennents of Kello and Sir Alexander Hoom. Janu. 24. 1667. SIR Henry Hoom having Appryzed the Lands of Kello from Henry and Iohn Hooms and being Infeft pursues the Tennents for Mails and Duties Compearance is made for Sir Alexander Hoom Donatar to the Forefaultor of the said Iohn Hoom of Kello who alleadged that the Forefault Person the time of the Doom of Forefaultor was in Possession of the Lands in question in whose place the Donatar now succeeds and by the Act of Parliament 1584. It is Statuted that where the forefault Person was in Possession the time of the Forefaulture albeit not by the space of five years which would Constitute a Right to him that the Donatar must be put in Possession and continue five years in Possession that in the mean time he may search and seek after the Rebels Rights It was answered First That this part of the Statute is only in case the Rebel had Tacks or Temporary Rights which neither is nor can be alleadged in this Case Secondly The five years Possession must be reckoned from the Doom of Forefaulture after which the Kings Officers or Donatar might have attained Possession and if they did not their neglect cannot prejudge others Ita est there are five years since the Forefaulture and the Rents are Extant being sequestred It was answered that the Act Expresses not only in Case of Tacks but also in Possession and that the five years must be after the Possession began and not the Forefaulture The Lords found the alleadgance Relevant that the Rebel was in Possession and preferred the Donatar to the five years Rent after the date of the Forefaulture It was further alleadged that the Pursuers Right being but an Appryzing the Donatar would instantly satisfie the same at the Bar. It was answered non Relevat to retain by way of Exception but the Donatar behoved to use an Order and pursue a Declarator It was answered that in Appryzings an Order upon 24 hours Requisition was sufficient there being no further Solemnity required then that the Appryzer might come to receive his Money The Lords found that the Appryzing might be summarly satisfied hoc ordine Earl of Argile contra George Campbel Eodem die THE Earl of Argile pursues George Campbel to remove from certrin Lands who alleadged absolvitor because the Warning was null not being used at the right Paroch Kirk where Divine Service at that time was accustomed It was answered non Relevat unless it were alleadged that the other Kirk were Erected by Parliament or Commission thereof and that thereby the Old Paroch was supprest and divided 2ly Though that were alleadged it ought to be Repelled because it is offered to be proven that all VVarnings and Inhibitions
not exclude probation of Super-intromission and there being two Compts produced the Charge of the last Compt is the rest of the former Compt and the Oath relates only to the last Compt. The Lords Repelled the Defense upon the Act of Pacification which they found was only unrescinded in so far as it is contained in the late Act of Indemnity and Repelled the Defense upon the Act of Indemnity in respect of the Exception and found that the Father had not Counted duly for his whole Intromission and that his Oath extended only to the last Compt and having considered the Testimonies of the Witnesses they made a difference betwixt what umquhil Lamertoun applyed to his own use and what Corns and Cattel were carried away by Souldiers by his direction to the Army that he might be free of the latter and lyable for the former Iohnstoun of Sheins contra Isobel Arnold Iuly 22. 1668. IAmes Arnold having granted a Bond of Provision to his Daughter Isobel became afterwards Debitor to Iohnstoun of Sheins who Appryzed Arnold's Estate in Anno 1638. upon a Debt of his own and as Assigney to another Debt Thereafter Isobel Arnold on her Bond of Provision Appryzes the same Lands Sheins conies in Possession of the most part and Isobel in a small part till they both acquire the benefit of a Possessory Judgement whereupon there are mutual Reductions Sheins Reason was that his Fathers Appryzing was long prior to the Defenders and that the ground of the Defenders Appryzing was only a Bond of Provision by a Father to his Daughter which could never exclude the Fathers Creditors especially if that Debt was contracted before the Bond of Provision was granted and while it remained in the Fathers Custody and so in his power to be Reduced at his pleasure Isobels Reason of Reduction was that albeit Shein's Appryzing was prior yet there was no Infeftment thereon in Shein's person bearing to be on an Assignation to the Appryzing by Shein's to Collingtoun but any Infeftment produced is in Collingtouns Person bearing to be on an Assignation to the Appryzing by Sheins to Collingtoun which Assignation is not produced and so Shein's Infeftment flowing from Collingtoun is null because Collingtouns Right from Umquhile Shein's is wanting which is the mid-cuppling 2dly Shein's Appryzing being on two Sums the one whereof was to the behove of a Cautioner who had payed the Debt and taken the Assignation in Shein's Name to his own behove which Cautioner being conjunct Cautioner with Iames Arnold the common Author and having a Clause of relief neither he nor Shein's intrusted by him could justly or validly Appryze Arnold the Cautioners Lands for the whole Sum but behoved to deduce the other Cautioners part and so the Appryzing is upon invalide grounds and thereby is null and albeit prior to Isobel Arnold's Appryzing yet she has the only valide Appryzing It was answered for Shein's that the first Reason was not competent to the Pursuer for it was jus tertij to her what progresse Collingtoun had from Umquhile Shein's seing she Derives no Right from him 2dly This Collingtoun by his Right granted to this Shein's acknowledges that aborigine the Infeftment in Collingtoun his Fathers person was to Shein's behove which is a sufficient Adminicle in place of the Assignation and to the second Reason albeit it were instructed it could not annul the Appryzing in totum but restrict it to the Sum truly Due especially seing that Shein's was content to declare his Appryzing Redeemable by payment of the Sums truly Resting within such times as the Lords would appoint and albeit the Lords are strict in the Formalities of Appryzings when they are expired and carry the whole Estate though improportional yet during the legal they allow them in so far as they are due The Lords found Isobel Arnolds first Reason Competent and Relevant to her unlesse Collingtouns Assignation were produced or the Tenor of it proven and found the second Reason Relevant to restrict the Appryzing to the Sum truly due in respect that Shein's did of Consent declare it yet Redeemable for the true Sums But they found Shein's alleadgeance that the ground of Isobel Arnolds Appryzing was a Bond of Provision posterior in Date or Delivery to Shein's Debt Relevant to prefer him as a Conjunct Creditor for his true Debt though the Assignation should not be produced a new one from Collingtoun being sufficient Iohn Boswel contra the Town of Kirkaldy Eodem die IOhn Boswel having some Aikers in the Towns Lands of Kirkaldy and some Houses in the Town but not dwelling within the Town or Paroch nor using any Trade therein pursues the Town as having unwarrantably Stented him for his Stock and Trade he not dwelling in their Burgh 2dly For unequal Stenting him as to his Lands 3dly For Stenting him for the Towns Debts as for the Sums payed for their Erecting Harbours and some Teinds they Bought 4thly For Stenting him for the second Ministers Stipend whereas he payed the whole Teind to the first Minister nor dwelt he in the Paroch nor consented to a second Minister or to his Stipend and for unwarrantable Quartering on him and his Tennents and this since the year 1644. It was answered for the Defenders that they denyed Stenting of the Pursuer for any Stock or Trade seing he was no Inhabitant or that they Quartered on him unwarrantably but alleadged there was now no ground after so long a time to quarrel the inequality of their Stent Rolls which were made by fifteen sworn Men especially after so long a time for this preparative would be the foundation of a Debate at the instance of every Burgess against every Town in Scotland neither could there be a clear Rule as in Valuations but behoved to proceed by the Stenters Conjecture according to the common esteem of the Means and Trade of every Burgess so that unless the Complaint were against the inhability of the Stenters in due time made there could be no Debate thereafter And further alleadged that for the Towns Debts that such as were contracted for the common benefit of the Town for getting their Erection and Harbour and for the second Ministers Stipend the half of which had been payed by the whole Heretors since the year 1613. and the other half since the year 1649. that their new Kirk was Erected should burden the Pursuer proportionally according to his Land Rent The Pursuer answered that he not being an Inhabitant was not concerned in the Erection or Harbour nor in the second Ministers Stipend seing he payed his whole Teind to the first Minister The Lords found the Pursuer lyable for the half of the Stipend in regard of the immemorial use of payment but found him free for what he had not payed of the other unless it had been imposed by Authority or his own Consent and also found him free of the Personal Debt and would not Sustain Process against the inequality of the Stent Roll after so long
a time Duncan Campbel contra the Laird of Glenorchy Iuly 25. 1668. DVncan Campbel pursues the Laird of Glenorchy for Ejecting him from certain Lands and especially that his Brother by his Direction did violently cast out the Pursuers Children and Servants out of a part of the Land Laboured by himself and perswaded and enticed his Tennents to receive Tacks from and pay the Mails and Duties to him and therefore craves Re-possession and Double Mail as the violent Profits of the whole Lands during the Defenders Possession The Defender alleadged Absolvitor because he had obtained Improbation against the Pursuer of all his Rights of these Lands and others and likewise Decreet of Removing The Pursuer answered that the Defense ought to be Repelled because the Improbation was only by a Certification when he was Prisoner in Irland and the Defender by Articles of Agreement produced had acknowledged the Pursuers Right and obliged himself to Infest him in the Lands in question 2dly Though the Pursuer had but Possession without any Right he might not be Ejected but by a Precept of Ejection from a Judge which is not alleadged The Defender answered that these Articles of Agreement were never perfected nor extended and could only import a Personal Action against the Defender for extention or implement wherein when the Pursuer insists he will get this answer that he can have no benefit of the Articles being mutual until he perform his part thereof which is not done The Lords Repelled the Defence and Duply and Sustained the Ejection The Defender alleadged further that that Member of the Libel craving violent profits for that part of the Land Possest by Tennents because by the Defenders perswasion they became his Tennents is not Relevant because Ejection is only competent to the natural Possess or upon violence and perswasion is no violence The Pursuer answered that the prevailing with the Tennents was consequent to the casting out of the Defender out of his own House and natural Possession and was as great a fault as Intrusion and equivalent thereto The Defender answered that the Law has allowed violent profits only in Ejection or Intrusion which can be drawn to no other Case though it were as great or an greater fault The Lords sustained the Defence and found violent profits only competent for that part that the Pursuer Possest naturally but if the whole Lands had been an united Tenement or Labouring that the Pursuer had been Ejected out of the principal messuage of the Barony and the Ejecter had thereby gotten Possession of the whole it is like the Lords would have sustained Ejection for the whole but this was not Pleaded Lord Rentoun contra Lambertoun Iuly 28. 1668. THis day the Lord Rentouns Processe against Lambertoun mentioned the 21. Instant was Advised by the Probation it appeared that the Corns in the Girnels of Haymouth and the Cattel in the Mains of Rentoun and Horses were taken away by Lambertoun with a Troop or Troopers and that the Corns were carried to Dunss the Army being thereabout at that time whereupon the question arose whether or not Lambertoun were lyable for these which by the Probation did not appear to be applyed to his use but to the use of the Army The Lords Assoilzied him therefrom as they had done in several cases formerly upon the Act of Indemnity whereby whatsoever was acted in the Troubles by Warrand of any Authority in Being was totally discharged and the Lords did thereupon find that the Actors were not obliged to produce or show a Warrand but that it was enough the Deeds were done manâ— militari unlesse the contrair were proven by the Actors own Oath that what was medled with was not employed to entertainment of Souldiers or any other publick use but to their own private use Laird of Milntoun contra Lady Milntoun Iuly 30. 1668. THe Laird of Milntoun infifted in his Action of Reprobator wherein this point of the Dispute was only Discust whether Reprobators were competent unlesse they were protested for at the taking of the Witnesses Testimonies or whether it were sufficient to Protest at any time before Sentence or if there were no necessity at all and especially as to this Case It was alleadged there was no necessity of a Protestation and if it were there was a Protestation at the Re-examination of the Witnesses and also before Sentence It was answered that a Protestation was most necessar because the want of it was an acquiescence in the hability and honesty of the Witnesses and if it should not be necessar all Process this five years might come in question upon Reprobation which were of dangerous consequence and therefore as Incidents are not competent but when Protested for no more Reprobations as to the alleadged Protestation at the Examining of the Witnesses it is but subjoined to the Interrogators only Subscribed by one of the four Examinators who Subscribed the Testimonies and who does not remember of his Subscription so that it has been surreptitiously obtained from him as to the other Protestation the same was not when the Witnesses were taken but at the conclusion of the Cause It was answered that it was in competent time even at the conclusion and that Reprobators were not only not rejected but expresly allowed by the Pursuer by way of Action The Lords found this Reprobator competent in this Case but did not resolve the point generally whether they were competent when not at all Protested for as to which the Lords were of different Judgements but most seemed to require a Protestation ante rem Iudicatam yet so that if it were omitted the Lords might repone the Party to Reprobators if any emergent made the Testimonies suspect through inhability or corruption in the same manner as the Lords will repone Parties against Certifications Circumductions of the Term and being holden as Confest Sir George Mckenzie contra the Laird of Newhal Eodem die SIr George Mckenzie Advocat having Married a Daughter of Iohn Dickson of Hartrie they pursue a Proving of the Tenor of an Inventar of Harâ—ries Lands wherein he altered the former Substitution of his Children in several Bonds and paricularly of a Bond of 5000. Merks granted by Whitehead of Park payable to himself and after his Decease to Helen Dickson his youngest Daughter who was Married to Ballenden of Newhal and by the Inventar the Substitution was altered and the one half of the Bond appointed to pertain to Elizabeth now Spouse to Sir George Mckenzie and the other to Helen and Michael to prove that the samine was Holograph because it wanted Witnesses there was produced for Adminicles the Copy of it written by Iohn Kelloes Hand Hartries Nephew and an judicial Instrument containing the Tenor of it by way of Transumpt but there was some words of difference between the Instrument and the Copy which was Subscribed by Iohn Ramsay Hartries Good-brother and Mr. Iohn Pringle Hariries Good-son who and several others being adduced as Witnesses
proven they were not obliged to take Terms to produce or otherwise upon this pretence of Part and Pertinent before the samine were instructed any party might necessitate all his Neighbours to make patent to him their Charter Chists The Pursuer answered that the Defenders ought to take a Term to produce and that before Certification at that Term he would prove Part and Pertinent and alleadged the Practique in the Case of the Town of Sterling observed by Dury the 24. of Iune 1625. The Lords Sustained the Defense and would not put the Defenders to take Terms till the Lands in question were first proven to be Part and Pertinent and allowed the Pursuer to insist primo loco in this Declarator for that effect and as to the Practique alleadged they found in that Case the Defenders alleadged upon no Right whereas the Defenders propone here upon an expresse Infeftment Laird Kilburny contra the Heirs of Tailzie of Kilburny and Schaw of Greinock Eodem die UMquhile Sir Iohn Crawford of Kilburny having only two Daughters the eldest Married to Blackhal Dispones his Estate to Margaret the younger and to the Heirs-male of her Body which failing to the eldest Heir Female without division throughout all the Succession and failling the Issue of this Daughter his eldest Daughter and her Issue and failling of these Iordanhil and Kilburny their Issue all which failling his own Heirs and Assigneys whatsomever In which Disposition there is a Clause that the said Margaret and the Heirs of Tailzie should not alter the Tailzie nor Dispone or burden the Lands ' or contract Debts whereby they might be Apprized and carried from the Heirs of Tailzie otherwise the Contraveeners should lose their Right ipso facto and there should be place to the next Heir of Tailzie but there is a Clause subjoined that the said Margaret and the Heirs of Tailzie might Sell Dispone and Wodset the Lands of Easter Greinock and Carsburn and might burden the same with Sums of Money for paying and satisfying of the Defuncts Debts The said Margaret Crawford having Married the Earl of Crawfords Son Patrick they did Sell the Lands of Easter Crawford and Carsburn to Sir Iohn Schaw of Greinock at a Rate far above the ordinar Price having expected a Bargain with the Town of Glasgow for a Harbour there but the Town having made another Bargain with New-wark Greinock pursued Kilburny either to annul the Minut or fulfil the same and to secure him in relation to the Clause de non alienando and to that effect Kilburny raises a Declarator against the Heirs of Tailzie to hear and see it found and Declared that by the Right granted to the Lady by her Father she might lawfully Sell the Lands of Easter Greinock and Carsburn The Heirs of Tailzie compeared not but Greinock compeared and was admitted for his Interest which was that the Processe being for his security he might propone all the Defenses which he thought competent to the Heirs of Tailzie and alleadged that the Libel was no ways Relevant bearing a power to Sell simply but that it ought to have been conform to the Clause in the Disposition viz. to Sell Wodset or Burden for payment of the Defuncts Debts which did necessarly import that no further could be Sold then what was sufficient to pay the Debt and therefore no Processe till the Libel were so ordered and the Debts produced The Pursuer answered that he opponed the Clause having two Members one bearing with full power to Dispone the Lands of Easter Grienock and Carsburn and the other bearing to affect the same with Sums for paying of the Defuncts Debts which payment of the Defuncts Debts was but the end motive and consideration for which the power was granted but was no restriction quality or limitation of the power 2dly It did only relate to the second Member of the Clause and not to the first Member which bore with full power to Sell and Wodset c. which full power is directly opposit to a limited power 3dly Albeit the Pursuer were obliged to instruct the Debt and apply the price for satisfying thereof yet the Clause doth not limit him to Sell only so much as will be equivalent to the Debt but he satisfying the Debt more or lesse hath acted conform to the Clause which uses to be so exprest in Clauses of this nature as that the Heirs of Tailzie may Dispone so much as will be sufficient for payment of the Debt which not being exprest these restrictive Clauses being against common Law are strictissimi juris and not to be extended beyond what the words expresly bears 4thly Albeit the Pursuer were obliged to instruct that there were Debt which might be a price yet he were not obliged to instruct that they would be equivalent to this price but to such a price as were not a third part within the ordinar Rate in which latitude every Seller hath power and the alienation cannot be quarrelled and albeit that price would be more then the Debt yet these Lands being two intire Tenements which none would Buy by Parcels the Pursuer could only be comptable to the Heirs of Tailzie for the superplus The Defender answered that he opponed the Clause being one and copulative and that these Lands being put per expressum in the Clause de non alienando It could not be thought that the immediat following Clause would give the Lady as much power as to these Lands as if they had not been in the former Clause but the intent to satisfie the Defuncts Debt being the last words in the Clause is relative to the whole Clause and natively resolves into an Restriction or Quality not bearing that they night be the more able to pay the Debts but for payment and satisfaction of the Debts The Lords considering that Heirs of Tailzie were absent and that as to them the Interlocutor would be in absence found it most just and safe for both Parties to declare conform to the Clause that the Alienation was valide for satisfying the Defuncts Debts and found not that the Debts behoved to be equivalent to this price The Creditors of John Pollock contra James Pollock his Son January 21. 1669. THe Creditors of John Pollock having Adjudged his Tenement for their Debt and James Pollock having gotten a Bond of 5000. Merks from his Father payable after his Fathers death which was granted after he was Married he did also Apprize thereupon within year and day of the Adjudication The Adjudgers raise a Reduction of this Bond and the Apprizing following thereupon upon these Reasons First Because the Bond was granted for Love and Favour and albeit it bear borrowed Money yet the said Iames has acknowledged by his Oath that it was for Love and Favour and so being granted betwixt most conjunct Persons after the contracting of their Debts it is null by the Act of Parliament 1621. The Defender alleadged that the Reason was not Relevant as to such Debts
Article of the Libel whereby Iohn Bosewel craved Repetition of what he was stented for for Charges of Commissions to the Convention of Burrows upon this Ground that the Convention of Burrows was authorized by Acts of Parliament and Commissioners is ordained to meet yearly thereat which being a burden arising from the Authority of Parliament these who have Tenements in the Town or Lands in the Burghs Lands are lyable pro rata and did again resume the Debate anent the second Ministers Stipend and being heard thereupon in presentia The Lords adhered to their former Interlocutor anent the Teinds and found nothing could make Iohn Bosewel lyable for any part of the second Ministers Stipend except what was due by Law out of his Teinds or what was due by his own consent or by custom of 40. years and found him not lyable for Charges of Commissioners of Burrows which though authorized by Parliament yet the intent thereof was Trading and though the Convention might equalise the proportion of Taxations amongst Burghs which did concern all having Land therein Yet that being a case meerly contingent they would not upon consideration thereof put any part of the burden upon these who had no Trade Iohn Boswel contra Lindsay of Wormistoun February 3. 1669. John Bosewel being appointed Commissar of St. Andrews by the King and before the Restitution of Bishops after their Restitution the Arch-bishop named Lindsay of Wormistoun Commissar and agreed him and Iohn Bosewel on these Terms that Iohn should have the half of the profit of the place whereupon Wormistoun grants a Bond to Iohn Bosewel to Compt and Reckon for the Profits of the half and to pay the same to Iohn Bosewel termly and quarterly and if any question should arise betwixt them in the Accompt that he should submit himself to the Arch-bishops determination and acquiesce therein Iohn Bosewel Charges upon his Bond. Wormistoun Suspends It was alleadged for Wormistoun that his Bond did contain a Submission to the Arch-bishop who is thereby the only Judge Constitute in these Accompts It was answered that this Bond was only Subscribed by Wormistoun himself and a Submission must be Subscribed by both Parties and that it behoved to be understood to last but for a year and not to import a Liferent Submission neither could it be exclusive of the Lords to decline their Authority The Suspender answered that this Submission being a provision in the Bond Charged on Which Bond being accepted by the Charger his acceptance makes his consent to the Submission in the same way as if he had Subscribed the same And there is no Law to exclude a Submission for two years or a Lifetime more then for one and it is not a declining of the Lords Jurisdiction it being most ordinarly sustained no Process because there is a Submission standing The Lords found that there is here a Submission not ending by a year and accepted by the Charger and that thereby the Arch-bishop in the first place ought to give his Sentence which if he refused or if it was iniquous the Lords would cognosce thereupon as in the case of other Arbiters and Assigned therefore to the Arch-bishop the first of Iune to determine thereupon Kilburnie contra Heirs of Tailzie of Kilburnie Eodem die THe Laird and Lady Kiburny did insist in the Declarator against the Heirs of Tailzie Dispute the 20. of Ianuary and according to the Interlocutor then given gave in a condescendence of Kilburnies Debt amounting to fifty one thousand pound and that the Rent of the Land did not exceed thirty six hundred merks It was alleadged that the Annualrents were here accumulate for five years after Kilburnies Death which ought not to be the Lady having Possession of the Lands and ought to have payed the Annualrent and the Clause impowering her to Sell is only for satisfying Kilburnies Debt due the time of his Death which cannot extend to Annualrents due after his Death and that these Annualrents were truly payed by the Lady and so could not come in as a Debt upon the Estate 2dly The Moveable Debts ought to be satisfied by the Executory which must first be Exhausted the Lady her self being Executrix and so cannot burden the Heirs of Tailzie or the Estate for if they had been Distrest they could have craved payment from her quoad vires inventarij so that the principal Sums not extending to 40000. Pounds and the Lands being Bought by Greinock at the Rental of 4000. Merks and 20000. Merks being gotten more for the Lands then the Debt the power of Selling granted to the Lady in the Disposition can never extend to so vast a difference albeit a small difference of the price would not be noticed and lastly it was offered to find a Party who would take a Wodset of the Lands in satisfaction of all the Defuncts Debts so that the Lady cannot in prejudice of the Heirs of Tailzie Sell where Wodsetting may do the turn and the Wodset should contain a Reversion and no Requisition and whereas it might be pretended that the matter was not intire because the Lands were actually Sold to Greinock he offered to Consent and Renunce his Bargain It was answered that this Clause de non alienando being against the nature of Property was odious and not to be extended and the faculty of Selling or affecting being suitable to the nature of Property was favourable and not to be restricted further then the Defuncts own Words and Termes who having given full power to his Daughter to Sell or affect the Lands named for payment of his Debts and not having said to Sell or burden so much of the Land as were equivalent to the Debt neither having said so much of the Debt as exceeded his Moveables or his Moveables being first exhausted it is most rational and to be presumed to be his meaning that as to his Moveables he did not burden her at all and that this part of his Lands he set apart for his Debt for he understood his Debt to be about the value of it otherwise he could have set apart less Land or could have more limited the Faculty 〈◊〉 Disposing but the principal Sums of this Debt being 40000. Pounds and the Rental not being pretended to have been above 4000. Merks the principal would amount to the value of the Land at 15. years Purchase and there being unquestionably a latitude to the Feear to Sell at such a Price as in discretion he thought fit though he had sold at twelve years purchase or not under the lowest Rate of Land neither could the Buyer be quarrelled nor the Seller as incurring the Clause irritant and therefore the Lady having Sold at a far greater Rate then the ordinar Greinock and the Town of Glasgow being both dealling for the Land they to make a Harbour there and he not to suffer them in prejudice of his Town and Harbour in Greinock there is no reason to exclude the Lady from the benefit of her
Cautioner for the Earl of Hume and was content that Witnesses should be Examined anent the Inhibition and Apprizings being still in the Possession of the Earl of Hume in his Charter Chist but not upon any other ground to take away his Assignation and solemne Right which cannot be taken away by Witnesses but scripto vel juramento and most of these presumptions are but weak conjectures no wayes inferring that Ioussie was payed by the Earl of Humes Means and the great friendship that was betwixt Annandail and Hume alleviats the same it being the cause for which Annandail forbore to take Infeftment or do Diligence thereby to allarum Humes Creditors that his Inhibition would always work his preference and on that same ground did consent to several Creditors Rights there being enough remaining for him and which was an evidence that this Right was generally known and that without it Hume could not give Security The Lords ordained Witnesse sexâ— officio to be Examined upon all the points alleadged for â—learing of the Trust. The Kings Advocat contra the Earl of Mortoun and Viscount of Grandison February 29. 1669. THe Kings Advocat pursues a Reduction of the Rights of the Earldom of Orkney and Zetland granted by the Deceast King Charles the first or by this King himself to the Earl of Mortoun or Viscount of Grandison and produces a Contract betwixt the King and the Earl of Mortoun in Anno 1643. and a Charter following thereupon whereby the Lands are granted and Disponed blench with several extraordinaâ— Priviledgâ—s as having right to the Bullion and other Customs of Goods Imported there and also a Charter in Anno 1646. by the King to the said Earl relating to a Dissolution in the Parliament 1644. containing nova daâ—tus and bearing also blench there is also produced an Infeftment granted to the Viscount of Grandison and after the said Infeftment a Ratification by the Parliament 1661. In the which Ratification there is contained a Dissolution of the Earldom of Orkney and Zetland in favours of Grandison wherein also the Dissolution formerly made in favours of Mortoun in Anno 1644. is particularly Rescinded upon this consideration that neither the King nor his Commissioner were present in the Parliament 1644. and that his annexed Property could not be Disponed nor Dilapidat without an express aâ—t of his own Ratified by Parliament After this Dissolution in favourâ— of Grandison the King granted no new Infeftment to Grandison The Advocat having holden the production satisfied with the Writs produced Mâ—â—toun and Grandison compeared not at all and some others having publick Rights from them being called did also pass from their compearance and submitted to the Kings favour and compearance being made for some of the Vassals holding of Mortoun they were not admitted because they produced no Wâ—its to instruct there Interest so the Lords proceeded to Advise the Reasons of Reduction which were upon these points First That by the Law and several particular Acts of Parlâ—ament the Patrimony of the Crown being the Lands and Customs annexed to the Crown might not be Disponed by the King unless the samine upon weighty Motives and Considerations had been Dissolved by his Majesty and the Parliament and Dissolutionsâ— made after Infeftments are not valide Parliament 1597. cap. 236. and by the 234. Act of that same Parliament the annexed Property can not be Seâ— otherwise but in Feu Ferm so that the Earldom of Orkney being annexed to the Crown by the annexation produced in Process and the Contract and Charter 1643. being before any Dissolution is absolutely null and the Infeftment in Anno 1646. albeit relating to a Dissolution in Anno 1644. yet no such Dissolution is found in the Records and though it were it is Rescinded in the Ratification in favours of Grandison in the Parliament 1661. upon so weighty a Reason as the King or his Commissioner not being present And because the Parliament 1644. is Rescinded by the Parliament 1661. wherein albeit there be a salvo of privat Rights yet that cannot reach to the Patrimony of the Crown especially seing in that same Parliamentâ— 1661. His Majesty having Revocked all Deeds done by Him or his Father since 1637. which by the Laws of the Nation he might not do to the Derogation of his Honour or Crown the Parliament has Ratified the same Revocation as to all Rights granted since 1637. Contrair to the Laws and Acts of Parliament preceeding 1637. and likewise by an express Act of Parliament it is provided that no Ratification in Parliament shall prejudge the Crownâ— or supply a Dissolution and that none of the Kings Customs which are also annexed can be effectually Gifted The Lords found these Reasons Relevant and proven and Reduced all the Rights produced before the Dissolution in Anno 1661. since which there is no Infeftment granted Pargilleis contra Pargilleis February 26. 1669. UMquhile Abraham Pargilleis having no Children but one Bastard Daughter Dispones some Lands acquired by him to Abraham Pargilleis eldest lawful Son of that Daughter Iohn Pargilleis his Brother Son and nearest Heir pursues a Reduction of that Disposition as being done in lecto and the Defender alleadged that the Defunct went abroad to Kirk and Mercat thereafter unsupported and the Pursuer replying that he was supported and either Party contending for Preference the one that he walked free of himself and the other that he was supported The Lords considering the advantage to the Party that had the sole Probation would prefer neither but before answer ordained Witnesses to be adduced for either Party concerning the Condition the Defunct was in as to Sicknesse or Health when he Subscribed the Disposition and the manner of his going abroad whether free or supported and now the Lords having Advised the Testimonies by which it was proven that the Defunct was Sick the time of the Subscribing of the Disposition and that he continued Sick till his Death It was also proven that he went unsupported a quarter of a Mile when the Seisine was taken six days after the Disposition and that after the same he went three times to Calder and about three quarters of a Mile off and that he was helped to his Horse and from his Horse and that he was helped up Stairs and down Stairs but that he walked a foot unsupported in the Mercat of Calder and up and down from my Lords House being three pair of Buts of rising Ground It occurred to the Lords to consider whether the Sickness proven would have been sufficient not being â—â—orbus sonticus or in extremis or whether the presumption of Health sufficient to leige poustie was enough that he came out to Kirk and Mercat albeit the Sickness remained and whether the probation of the Sickness remaining could take away that presumption and whether his being helped to his Horse and from his Horse or up and down Stairs and his Man holding his Bridle as he Rode to and returned from Calder did infer that
proportional to the remainant Lands lying in that Shire so that where the other Lands are generally highly Retoured it is evidently presumed that the Property was so Retoured and seing the Property did of old pay no Taxation it were strange now to make it bear more then the other Temporal Lands about it The Lords found that the Property of the Shires had the same abatement with the rest of the temporality in these Shires Earl of Marishal contra Leith of Whitehaugh Eodem die IEan Keith having a Right to a Wodset of the Mains and Miln of Troup and being Married to Iohn Forbes she Disponed the Heretable Right to his Brother which Right is now by progress in the Person of Leith of Whitehaugh Isobebs Brother raised a Reduction in Anno 1628. of the Right granted by her to her Husbands Brother and now his Right and an Assignation to the said Process coming to the Earl of Marishal and by him to Lesmore they insist in their Reduction upon the Reason of Minority and Lesion It was alleadged for the Defender First No Process because prescription is past since the Right was granted by Isobel Keith which cannot be interrupted by the Reduction in Anno 1628. because it is evident by inspection of the Reduction that it is but filled up of late and that the Executions there of are new so that it signifies no more nor blank Paper or a blank Summonds till the Reasons be filled up and insisted in before which prescription was compleat 2dly Absolvitor because the Right granted by Isobel Keith to her Husbands Brother was to the Husbands behove Likeas there was a blank Bond granted by the Brother to the Husband so declaring and there being no other Contract of Marriage this Disposition must be understood as granted to the Husband in contemplation of the Marriage and being but the Right of 10000. Merks which was but a competent Tocher it was no Lesion to Dispone the same to the Husband or any to his behove and offered to prove by the Brothers Oath that there was such a back Bond and that yet there is a back Bond by him to whom the Brother Disponed The Pursuer answered to the first that interruption is sufficient by any Act whereby the Party having Right may follow the same so that Summonds albeit not legally Execute would yet make an interruption though no Sentence could follow thereupon and a Summonds being blank must be presumed as comprehending all the Grounds and Reasons that might have been filled up therein but here the Lybelling of the Interest which is not with new Ink bears expresly that the Pursuer as Heir to his Sister has good interest to Revock and Reduce Deeds done by her to her prejudice which doth imply the Reason of Minority and Lesion To the second albeit the Disposition by the Wife had been to the Husband yet it is simply Reduceable upon Minority there being no remuneratory Obligation upon the part of the Husband providing her to a Jointure in which case if the Provision had been suitable there would have been no Lesion and if not suitable the Lords might Reduce it in part or Rectifie it if done in the Wifes Life but here she having nothing from the Husband and being Dead she cannot now receive a Jointure and so the Right is Reduceable in totum especially seing the said Iohn Forbes did violently carry away the said Isobel Keith and Married her without her Friends Consents and must be presumed by the same means to have purchased the same Disposition from her without any remuneratory Provision to her 2dly There is not nor cannot be known any such back Bond and it were absurd that the Husbands Brothers Oath alone should prove the same in favours of his Brother The Defender answered that albeit there was no Jointure provided yet the Law provides a Terce which ofttimes is better nor the Jointure The Pursuer likewise answered that the Law did provide the jus mariti and the courtesie so that either Party ought either to acquiesce in the provision of Law or the Provision of Parties must be mutual The Lords Repelled the first Defense especially in respect of the manner of Libelling the Title and found not the Executions of the first Summonds to appear new and therefore Sustained them unless the Defender would improve the same they found also that alleadgeance that the Disposition was to the Husbands behove was not to be Sustained especially seing no back Bonds were produced or offered to be proven and that the manner of Probation offered was no way sufficient that there was no Provision for the Wife Duke Hamiltoun contra the Laird of Blackwood Eodem die THe Duke of Hamiltoun pursues the Laird of Blackwood that it may be declared that he is his Vassal in his Lands of Blackwood on this ground that the late Marquess of Hamiltoun having Disponed to the King the Abbacie of Arbroth did in consideration thereof in Anno 1636. get a Charter from the King of the Barony of Leshmahago a part of the Abbacie of Kelso of which the Lands of Blackwood were holden Waird which Lands having been Apprized and the Apprizers Infeft holden of the King the Laird of Blackwood having thereafter Disponed them to Major Ballantine by his Contract of Marriage with Blackwoods Daughter and the Major having purchased a Right from the Apprizers both upon Blackwoods procuratory of Resignation and the Apprizers he Resigned the Lands in the Marquess Hand and did take his Infeftment holding Waird of him likeas this Blackwood who is Heir of Provision to the Major as procreat by Marion Weir Blackwoods Daughter with William Lowry hath no other Right but as Heir of Provision to the Major and yet he hath taken Infeftment holding of the King likeas the said William Lowry his Father as lawful Administrator and taking burden for him has obliged himself by his Bond that so soon as the Marquess should obtain a Right to the Superiority he should take his Infeftment from him Waird and by the Act of Parliament 1661. Ratifying the Act of Annexation 1633. It is expresly provided that any Right to the Superiority of Kirk Lands granted by the King yet notwithstanding the annexation shall be valide as to such Vassals who have or shall consent to the Rights of the Persons obtainers of the saids Superiorities so that Major Ballantine having consented by taking Infeftment in manner foresaid he and his Successors must continue the Dukes Vassals The Defender alleadged Absolvitor because any Right the Duke has or the Marquesse had to the Superiority is absolutely null by the saids Acts of Parliaments annexing the Superiority of Kirk Lands to the Crown so that unless there had been a Dissolution in Parliament no Right of these Superiorities is valide but null and the exception of the said Act 1661. is only in the case of the Vassals consenting to a Right of Superiority Ita est there can be no Right but
legitimo modo by Dissolution The Pursuer answered First That albeit the King or his Officers might quarrel his Right as not proceeding upon Dissolution or any other having their Right upon Dissolution yet the Defender cannot especially seing he hath Homologat the Pursuers Right his Predecessors to whom he is Heir having taken Infeftment thereupon likeas the Pursuer has satisfyed the Kings Interest by giving Bond to the Kings Advocat to hold the Lands Waird of the King in the same way as the Defender would therefore the Advocat hath declared he will not concern himself 2dly the Pursuer having obtained a new Right of the King since the Act of Parliament 1661. the same must be valide to him as to these Vassals who have or shall consent because the exception of the Act expresly bears that such a consent is equivalent as if the Vassal had Resigned in the Kings Hands in favour and for new Infeftment to the interposed Superior and had then taken a subaltern Right of him against which there can be no pretence so that by a Right in the exception it cannot be meaned a perfect Right proceeding upon Dissolution because that would be valide without the Vassals consent but that the Vassals consent being equivalent to a Resignation makes the Right valide without Dissolution Which the Lords found Relevant the Duke proving a sufficient consent but it was not Decided whether Major Ballantines taking Infeftment would import a sufficient consent conform to the exception of the Act so that he might not thereafter return to the King Iack contra Iack Iuly 15. 1669. PAtrick Iack having only three Daughters Margaret his eldest Daughter Married Iohn Dowglas and there is a Contract betwixt Iohn Dowglas and the Tutors of the other two Daughters dividing there Fathers Inheritance in three parts and mutally Disponing the same with Procuratory and Precept and there being a Salmond Fishing holding Waird of the King which fell to Margarets share Iohn Dowglas takes Infeftment upon the Tutors Precept Disponing for the other two that Fishing after his Death the said Margaret takes a Gift of Recognition of the said Salmond Fishing as falling by the Infeftment taken by Iohn Dowglas without consent of the Superior and thereupon pursues Declarator Katharin Iack and Robertson her Spouse and the other Sister pursue a Reduction of the Contract of Division as done by their Tutors in their Minority to their Lesion and in answer to the Recognition alleadged First That this Recognition occurred in the time of the English when Recognitions were excluded and such Infeftments by the Law then in use were allowed 2dly The Infeftment here granted proceeded only upon the Disposition of their Tutors whose acts except in what is proper to the Administration of their Office is void It was answered as to the first that they opponed the Decision in the case of Sir George Kinaired against the Vassals of the Master of Gray by which it was found that Infeftments taken of Waird-lands without the Superiors consent even during the Usurpation inferred Recognition and to the second that the Division among the Daughters was an act of Administration that the Daughters might have been compelled to do It was answered that there is no such Decision produced and that in the case of the Vassals of Gray they did continue in Possession several years after the Kings Restitution and did not take Confirmations but here the said Margaret one of the Sisters who should have taken Confirmation before she had continued Possession cannot have benefit by her own fault and make use of a Gift of Recognition in her own Person proceeding upon her own and her Husbands fault neither can the Division be a lawful act of Administration of the Tutors in so far as they granted them Precepts of Seising to be holden of their Pupil which no Law could have compelled them to do but only Procuratories of Resignation likeas it was Iohn Dowglas fault not to make use of the Procuratory but of the Prccept The Lords found no Recognition incurred but because the Parties might have been troubled if any other had taken the Gift they ordained the other two Sisters to pay their part of the expences of the Gift Mr. Archibald Dennistoun contra Semple of Fulwood Iuly 16 1669. THe Lairds of Fulwood elder and younger and Dennistoun being appointed Overseers by Culgrain to his Daughters the eldest Daughter being Married to Mr. Archibald Dennistouns Son there is a Contract betwixt Mr. Archibald and the three Overseers taking burden for the Daughters by which the Estate of Culgrain and Mr. Archibalds Estate are both settled in the Person of his Son and the Overseers are obliged to cause the Minors and their Curators become obliged to relieve Mr. Archibald of 17000. Merks Mr. Archibald Charges Fulwood upon the Contract who Suspends alleadging that the Clause can only import that he is lyable for his own part but not in solidum seing the Clause bears not the Overseers to be bound conjunctly and severally It was answered that the obligement is not for payment of a Sum which is divisible but for doing a Fact which is indivisible viz. the Minors being become bound to relieve which is all one as if the Overseers had been obliged to cause the Minors Subscribe a Bond of releif which could not divide but would have obliged every one of them in solidum It was answered that the result of the obligation being releif of Sums which are divisible the obligation at least the Damnadge and Interest succeeding in place thereof ought to be devisible for the obligation being factum alienum imprestable to the Overseer and the third Overseers that refuses to concur being the Chargers own Brother there is no reason that the Overseers who had no Office or obligement but were only Overseers which is not nomen juris should be lyable for the Chargers own Brother his third part thereof The Lords found them only lyable pro rata Barclay contra Barclay Iuly 20. 1669. THe Laird of Towy having only one Daughter Elizabeth Barclay and his Lands being provided to Heirs Male Dispones his Estate to his Daughter In which Disposition there being not only a Procuratory of Resignation but a Prcept of Seising the said Elizabeth was Infeft upon the Precept and being an Infant her Friends thinking it might infer Recognition took a Gift of the Recognition and now pursues Declarator thereon against the Tutor of Towy Heir Male and Captain Barclay as pretending Right by Disposition to the Estate It was alleadged for the Defenders Absolvitor because the Disposition granted by umquhile Towy to the Pursuer his Daughter was granted on Death-bed at the least it was retained by the Defunct and never delivered till he was on Death-bed and thereby it is null and cannot infer Recognition because the Law upon just consideration that Parties are presumed to be weak in their Minds and easily wrought upon after contracting of the Disease of which they Died has
of the Price and bearing this provision that it sholud not be payable till the Earl obtained George Infeft by his Superior The Earl Assigns the Bond to Lady Lucy his Sister who having raised Inhibition upon the Bond against George Hay and having thereafter Charged him he Suspended alleadging that the Condition was not fulfilled he not being Infeft and the Lady offering a part of the Sum to purge that Condition pro damno interesse and to procure his Infeftment George accepted of the offer and thereupon the Letters were found orderly proceeded for 3000. Merks of the Sum and Suspended for the rest in place of the Condition upon this Decreet the Lady Apprizes the Lands of Mountcastle and now Insists in a Reduction of a Disposition of the same Lands granted to Dunlap and Pitcon for themselves and to the use and behove of the Disponers other Creditors underwritten viz. Where there was a blank of several Lines which is now filled up by another Hand and though this Disposition was anterior to the Inhibition and did prefer Dunlap and Titcon for any Sums due to themselves or for which they were Cautioners the time of the Disposition Yet the Lords found by a former Interlocutor that as to the other Creditors filled up in the blank it should be repute as posterior to the Inhibition and filled up after the same unless the Creditors prove by the Witnesses insert or other Witnesses above exception that they were filled up before the Executing of the Inhibition The Cause being called this day the Creditors repeated their former alleadgeance and offered to prove that their Debts were anterior to the Inhibition and also that at the Subscribing thereof it was communed and agreed that Dunlap and Pitcon should undertake the remainder Creditors Debts at least they promised to give Dispositions of parts of the Estate effeirand to their Debts and accordingly they had done the same after the Inhibition but being upon a promise before the Inhibition they were valide having causam anteriorem and they offered to prove the Communing and Promise by the Writter and Witnesses insert 2dly They offered to purge and satisfie the Pursuers Interest 3dly They alleadged that their Disposition from the common Author of the Property of the Lands in question did comprehend all Right the Disponer had and consequently the Condition and Provision in the Bond that before payment George Hay should be Infeft for the Disposition would no doubt carry any obligement for Infefting the common Author The Pursuer opponed the former Interlocutor and alleadged that she was not obliged to Assign her Right seing she had now Apprized and that her Apprizing was now expired and yet of consent she was content to Renunce her Right but would not Assign it to exclude other Creditors or to distresse the Cautioners and as for the Condition of the Bond the Defenders Disposition gave them no Right thereto because there was no obligement in the Bond to obtain the common Author Infeft but only a suspensive Condition that payment should not be made till he were procured to be Infeft for hat the provision to obtain the Infeftment being only an Condition and not an Disposition after the Disposition to the Defenders the Pursuer might have payed the Bond or transacted thereanent with George Hay and was not obliged to know the Defenders The Lords adhered to their former Interlocutor and found the offer not sufficient and that the Pursuer was not obliged to Assign her Right though she had offered of her own accord to Renunce it and found the Persons Intrusted their undertaking the Creditors Debts before the Inhibition Relevant only to be proven by Writ or by the Ladies Oath of Knowledge and would not make up such a material Clause by the Oaths of the Witnesses insert nor of the Persons Intrusted and if they had made any such promise it was their own fault that they caused not put it in Writ knowing that their Oaths albeit they might prove against them yet that they would not prove for them for the Lords thought that if such blanks and clandestine Promises were allowed they might disappoint the Diligences of all Creditors Thomas Kennedy contra Archibald Kennedy of Culzean Eodem die THe Laird of Culzean having three Sons Iohn Archibald and Alexander for a Provision to Archibald the second Dispones his Lands of Corrowa and others with this provision that if Iohn should die and Archibald Succeed to be Heir Archibald should denude himself of the Lands in favours of Alexander and if Archibald wanted Heirs of his Body Alexander should be his Heir notwithstanding of any Law or Custom to the contrare thereafter a few Moneths before the Fathers Death this fourth Son called Thomas was Born Iohn the eldest and Alexander the third are both dead Infants Archibald falls to be Heir and so the Condition exists in which he was obliged to Dispone to Alexander Thomas enters Heir of Line to Alexander and pursues Archibald to Dispone the Lands to him It was answered for Archibald that Thomas as Heir of Line to Alexander can have no Right to this Provision First Because the Provision is only in favours of Alexander without mention of his Heirs 2dly Though it could be extended to Alexanders Heirs yet it being no Heretage to which Alexander could Succeed it is Conquest and would not descend to Thomas Alexanders Heir of Line but would ascend to Archibald as Heir of Conquest to Alexander It was answered for the Pursuer that in this case theâ—meaning and intention of the Father must be considered by his Provision inter liberos which is clear to have been that Archibald should not both have his Estate and these Lands of Corrowa but that the same should descend to Alexander and if Thomas had been then Born he would no doubt have provided that failzying of Alexander Archibalds Portion should fall to Thomas and if he had declared that the Lands of Corrowa should only belong to the Heirs of Line it would undoubtedly have excluded the Heirs of Conquest He has done the equivalent for having provided the Lands to Archibald and his Heirs whatsomever he does by a posterior explicatory Clause declare that if Archibald died without Heirs of his Body Alexander should be Archibalds Heir therein notwithstanding of any Law or Custom to the contrare which can have no other meaning then that notwithstanding by the Law Iohn as Heir of Conquest would Succeed to Archibald wanting Heirs of his own yet Alexander the younger who would be Heir of Line should Suceeed which is as much as to say that this Provision should belong to Archibalds Heirs of Line and not to his Heirs of Conquest and consequently having made no mention of Alexanders Heirs he did also mean Alexanders Heirs of Line who is the Pursuer Thomas and the case is so much the more favourable that if this failed Thomas hath neither Provision nor Aliment The Lords considering that both Parties were
Infants and that if Archibald should die Thomas would get all superceeded to give answer anent the Heretable Right of Succession until both Parties were Major and in the mean time allowed Thomas to Possesse the Profits of the Lands who had no Aliment nor Provision Kennedy contra Cunningham and Wallace Iuly 12. 1670. THere being an Apprizing of the Lands of Garleith belonging to Iohn Kennedy at the Instance of Edward Wallace the said Edward by his Back-bond declared that the Apprizing was to the behove of William Wallace of Burnbank his Brother and obliges him to denude himself thereof in his favours Thereafter the said Edward Assigns the Comprizing and Dispones the Lands to Adam Cunningham who stands Infeft and in a Debate for the Interest of this Apprizing It was alleadged that Edward Wallace the Apprizer having by his Back-bond declared that the Apprizing was to William his Brothers behove conform to his Back-bond produced the said William was satisfied by Payment or Intromission so that the Apprizing is extinct It was answered for Cunningham that the alleadgeance is not Relevant against him who stands Infeft as a singular Successor so that his real Right cannot be taken away by any Personal Back-bond granted by his Author whereby he was not denuded for though his Author had granted Assignation to the Apprizing if it had not been Intimat a posterior Assignation Intimat much more a Disposition and Infeftment would be preferred thereto for albeit satisfaction of an Apprizing by Intromission with the Mails and Duties be sufficient to extinguish even against a singular Successor though there was no Resignation made which the Lords had extended to any payment made by the Debitor yet this was never extended to any Personal Declaration of Trust or obligement to denude which cannot be valide against a singular Successor It was answered for Kennedy that Apprizings and Infeftments thereon do differ from other Infeftments in this that they require no Resignation or Re-seising to extinguish them but whatever may take away a Personal Right either by Intromission Payment or compensation will take them away even by exception and what is Relevant against the Author is Relevant against the singular Successor except as to the manner of Probation that it cannot be Proven by the Authors Oath but by Writ or Witnesses neither is there any odds as to this whether there be Infeftment on the Apprizing or not so then if Cunningham were but Assigney to the Decreet of Apprizing it would be Relevant against him that before his Assignation his Cedent had declared that the Apprizing was to the behove of another to whom the Debitor had made payment which Declaration being instructed by Writ anterior to the Assignation is valide against Cunningham the Assigney and whether he be Infeft on his Assignation and Disposition of the Apprizing or not as to this Point Law and Custom makes no difference neither doth the case quadrat with an Assignation unintimat compeating with a posterior Assignation intimat which might be preferred but if the Debitor made payment to the Assigney though he had not intimat it it would extinguish the Apprizing and no posterior Assignation though intimat would make the Debitor pay again and in this case there is a real Declaration of Trust which is most ordinar when Parties having small sums assign them all to one who Compryzeth for all and by several Back-bonds Declares that the Appryzing is to the behove of the several Creditors according to their sums who have alwayes rested therein and have sought no further and if this Back-bond were not sufficient against singular Successors the Appryzer might at any time thereafter Dispone and clearly exclude them The Lords found that the Back-bond was Relevant against singular Successors and that payment made to him to whose behove the appryzing was Deduced was sufficient against a singular Successor having right to the appryzing or Lands from the Appryzer after he granted his Back-bond The Daughters of Soutray contra The Eldest Daughter Iuly 13. 1670. THe Laird of Soutray having granted a Writ in favours of his Eldest Daughter beginning in the Stile of a Testament and after a blank Disponing his Lands of Soutray and his whole Moveables to the said Eldest Daughter with the burden of ten thousand merks to be payed to the remanent Daughters The saids remanent Daughters pursue a Declarator of the nullity of the Writ First In so far as being a Testament it contains a Disposition of the Lands 2dly In so far as the Eldest Daughter is nominate Executrix and universal Legatrix because by ocular inspection that part of the Writ was blank and is filled up with another hand which is offered to be proven to have been done since the Defuncts Death so that the Executor and Legator not being filled up by the Defunct in his own time and these being the Essentials of the Testament wanting the whole Falls even as to the Disposition of the Moveables The Defender answered that the Testament was valide albeit the Name of the Legator and universal Executor were filled up after the Defuncts Death yet it is offered to be proven that the Defunct when he subscribed the Testament did nominat his Eldest Daughter as Executrix and Legatrix and gave warrand to the Nottar to fill up the Name which though he neglected then and has done it since it ought not to prejudge her It was answered that our Law allows of no Nuncupative Testaments or nominations of Executors of Legators unless the Testament be perfected in Writ and therefore if the Executor or Legator be not filled up by the Defunct the Testament is not perfeited in Writ albeit the Defunct has Subscribed the same as he might have done in a blank Paper and given warrand to the Nottar to fill up his Testament upon such Terms which could not subsist though the Nottar and Witnesses should astruct the same as not being done habili modo The Lords found the Testament null as to the nomination of the Executor and Legator and also as to the Lands but they found it valide as to the Disposition of the Moveables with the burden of the ten thousand merks and found that the want of the nomination of the Executor or universal Legator did not hinder but that the Defunct might in any way Dispone his Moveables in Testament or on Death-bed which would stand valide as a Legacy which by our Law might consist without nomination of Executors but would extend to that part of the Moveables only the Defunct might Legat. Anna Raith and Iohn Wauchop of Edmistoun contra Wolmet and Major Bigger Eodem die IN Anno 1641. there was a Minute of Contract betwixt umquhil Wolmet Iames and Mr. Iames Raiths of Edmistoun and their Spouses whereby a Marriage was Contracted betwixt Iames Edmistoun Wolmets Son and Mr. Iames Raiths Eldest Daughter and in case of the Decease of either of these two the next Son and next Daughter to make
or Brybing the Witnesses it is most Relevant and express in Law l. 33. ff de re judicata bearing testibus pecunia corruptis conspiratione adversariorum c. which being pessimi exempli in odium corrumpentis not only are the Witnesses punishable but the Sentence annullable which is confirmed toto titulo Codicis si ex falsis instrumentis and that without regard whether they undertake or Depone falsly or not as is observed by Bartol l. in princ ff de falsis adict l. divans 33. de re judicata Num. 7. and Covaruvias in repet C. quamvis fol. 57. Col. 3. which he attests to be the common opinion and which is likewise attested by Boss. in tit de falsis num 1608. and by Will. 66. com opin fol. 2991. and especially by Hartman tit 15. de testibus observ 16. where he doth expresly maintain that it is not so much a lawful to instruct a Witness excitandae memoriae causa non si subito deprehendatur haesitet titubet in respect any such instruction is subornationis velamentum and which Opinion hath been likewise Confirmed by the Decisions of the most eminent and famous Courts of Justice as may appear per Capell tholos deces 2804. and others And which is likewise the Opinion of Clarus viz. That the foresaid Acts of Corruption are disjunctive and separatim Relevant as may appear by Fassum Num. 12 13. quâ—st 53. de exceptionibus quae contra testes opponi possunt And to the last alleadgeance against the Probation by Witnesses that it would infer an endless course of Reprobators It was answered that by the same Reason Reductions might be taken away because the Decreet Reductive might be Reduced and that Decreet by another Reduction without end But Reprobators have every where been Sustained and no such inconvenience ever found neither can it be imagined that every Pursuer of a Reprobator will prevail which this infinite progress must suppose only it may infer that Witnesses in Reprobators ought to be more unquestionable than the Witnesses called in question thereby The Lords found that Reprobators were competent albeit the Witnesses upon Oath Deponed upon their own Hability at the desire of the Party and albeit the Party Protested not for Reprobators seing he was not admitted to compear and found that Member of the Reprobators upon the poverty not Relevant in this Clandestine Crime neither that Member upon their alleadged Infamy unless it were alleadged that they were infamous infamia juris by any Deed which the Law expresly declares to infer Infamy or were declared infamous sententia judicis and found that Member of the Reprobators upon instructing or prompting the Witnesses Relevant without necessity to alleadge the Witnesses undertaking or Deponing conform and that in odium corrumpentiâ— without inferring any blemish upon the Witnesses so prompted who consented not or swore falsly and found that Member Relevant of Corrupting the Witnesses by giving or promising of good Deed more than might be suitable to the Witnesses for their Charges but as to the manner of Probation by Oath or Witnesses The Lords superceeded to give answer till a Practique alleadged upon were produced Pringle contra Pringle February 1 1971. PRingle of Soutray having only three Daughters does in his Testament done upon Death-bed Dispone his whole Lands to his eldest Daughter and Constitute her universal Legator with this provision that she pay 10000. merks to the other two Daughters the Disposition as to the Lands being Reduced as being in Testament and on Death-bed the universal Legacy was Sustained to give the eldest Daughter the Right of the Deads part whereupon it was alleadged for the other two Daughters that if the eldest insisted for the universal Legacy she behoved to have it with the burden of the ten thousand merks which was a burden both upon the Land and Moveables and doth no more relate to the one than the other so that albeit the Right of the Land be Evicted the Moveables remains burdened as if a Father should Dispone certain Lands to a Son with the burden of Portions to the other Children albeit a part of the Lands were Evicted the Portions would be wholly due without abatement It was answered for the eldest Daughter that in latter Wills the mind of the Defunct is chiefly regarded not only as to what is exprest but to what is implyed or presumed and here it is evident that the mind of the Defunct was that his two younger Daughters should only have ten thousand merks in satisfaction to all Rights of Lands or Moveables Now seing they have gotten two third parts of the Land which is much better than ten thousand merks It cannot be thought to be his meaning to give them any share of his Moveables also but that the half thereof which was at his disposal should belong to the eldest Daughter without burden Which the Lords found Relevant and declared the same to belong to the eldest Daughter without burden of the Provisions Alexander Ferguson contra Parochioners of Kingarth Eodem die ALexander Ferguson being one of the Prebands of the Chapel-Royal by His Majesties Presentation and Collation pursues the Heretors of the Paroch of Kingarth for the Teinds as being annexed to the Chappel-Royal as appears by the Books of Assumption and three Presentations from the King produced Compearance is made for the Minister of Rothsay who alleadged that he had Presentation to the Kirk of Kingarth from the King and Collation thereupon and so had best right to the Teinds of his Paroch because de jure communi decima debentur pâ—rocho and as for the Pursuer he shews no Right by any Mortification of these Teinds to the Chappel-Royal Neither can he make it appear that ever he or any other Prebander were in Possession civil or natural thereof 2dly Albeit the Prebanders had had a Right the same is now taken off by Prescription because it is offered to be proven that the Minister hath been 40. years in peaceable Possession before the Pursuers Citation which not only takes away the bygones but the whole Right and establishes the same in the Ministers person The Lords found the Books of Assumption and the three Presentations from the King sufficient to instruct the Pursuers Title and found the Defense of Prescription Relevant as to the bygones before the Citation but not to Establish the Right in the Minister or to take it from the Chappel-Royal as to years after the Citation and in time coming in respect of the Act of Parliament providing that the Kings Interest shall not be prejudged by the neglect of His Officers Blair of Bagillo contra Blair of Denhead February 3. 1671. BLair of Bagillo having granted Bond to Blair of Denhead he did Assign the same to Guthrie of Collistoun Bagilio raised Suspension against Collistoun as Assigney in Anno 1632. and now Collistoun insists in a Transferring of the old Suspension and Decreet Suspended against Bagillo's Heirs to the effect
Cautioners or Infeâ—tment of Land Iuly 7. 1664. Miln contra Hume of Eccles. THE ACT SALVO IVRE being excluded in a Ratification to a particular Party and that Exclusion not being repeated in the Act Salvo The Lords were unwilling to decide whether such Exclusion should be sufficient but ordained the Parties in the first place to Dispute their Rights without consideration of that Clause Febâ—uary 11. 1665. Earl of Lauderdaâ—l contra Viscount of Oxenfoord AN ADJUDGER ordained to be Received without instructing his Debitors Right who Renunced to be Heir Salvo jure superioris cujusâ—bet February 9. 1667. Ramsay contra Kâ—r ADâ—UDICATION being on a Disposition and obligement to Infeâ—t and not upon a liquid sum the Superiour was not found obliged to receive the Adjudger unless he instructed the Disponers Right Iune 24. 1663. Medowgal contra Laird of 〈◊〉 Adjudication being pursued by a Creditor on a personal Debt was not excluded by a Back-bond of the Defuncts Debitors bearing his Infeftment to be on Trust to the behove of a third Party whose Creditors compeared against the Adjudger yet was not put to Dispute his Debitors Right till aâ—ter the Adjudication he might use Exhibition of his Evidents but the Adjudication was granted with the burden of the Back-bond November 23. 1663. Livingstoun and Sornbeg contra Lord Forrester and Creditors of Grange Adjudication was Excluded as to the Property in favours of a Party shewing the Deâ—unct to be Denuded and himself Infeft but was Sustained to Adjudge any Right of Reversion Clause irritant or Provision in favours of the Defunct Debitor Iuâ—y 22. 1664. Inter â—osdem Adjudication was Sustained against a second appearand Heir upon a Decreet cognitionis causa upon the Renunciation of a former Heir without a new Charge against the Heir or his Renunciation The Defender declaring that the Lands should be Redeemable within ten years if the Pursuer Entered within these years Ianuary 17. 1666. Crawford contra Auchinleck Adjudication was found not to be stopped upon a better Right than the Deâ—uncts alleadged upon by a Party compearing but the Pursuer was suffered to Adjudge upon his periâ— November 15. 1666. Chein contra Christie ADMIRAL or the Iudge of the high Court of Admirality does Reduce the Decreets of inferiour Admirals or their Deputs February 24. 1668. Captain Mastertoun contra Strangers of Ostend The Lord Admiral being out of the Countrey found not necessary to be called in the Reduction of a Decreet of Admirality where the Iudge pronuncer of the Decreet was Called Inter â—osdem ADVOCAT was found obliged to Depone concerning the having of his Clients Writs February 1. 1666. contra Rallo An Advocat being in his Duty hindering a Suspension to pass being threatned by a Party who said he would make him repent what he had said if he were in another place and calling him Liar and Knave the Lords imprisoned the Party and Fined him in 500. merks Iuly 14. 1668. Mr. David Fâ—lcoâ—er contra Sir Iames Keith ADVLTERY was found not to infer Escheat unless the Adulterer were Convict Criminally or Denunced as Fugitive though he had confessed and stood in Sackcloath a year Ianâ—ary 9. 1662. Baird contra Baird ALIBI was found not receivable for proving a false datâ— to annul the whole Write where the Witnesses insert proved the 〈◊〉 of the Subscription though of aâ— Erroneous date February 23. 1667. Laird of May contra Ross. ALIMENT was found due by the Heir to his Brothers and Sisters their Mother being dead and they left without any Provision Ianuary 24. 1663. Children of Wedderly contra Laird of Wedderly Râ—o absente Aliment was found due by an Heir-male to Heirs of Line to whom he was obliged to pay such a sum when they were Mâ—rriageable without mention of Annualrent or Aliment here the Heir-male sâ—cceeded to a considerable Estate November 8. 1663. Lady Otter contra Laird of Otter Aliment was found due by an Heir-male to an Heir-â—emale of a second Marriage till her age of fourteen from which time her Portion bear Annualrent and beaâ— no mention of Aliment till then her Mother being dead and having no way to subsist without consuming the Stock of her Portion February 11. 1663. Frazer contra Frazer Aliment was found due by an Heir-male to Heirs of Line till their Marriage and not till the Term of payment of their Portions only seing the same bear no Annualrent râ—o absâ—â—te November 12. 1664. Daughters of Balmerino contra Lord Balmerino Aliment of a Child was found not due where the Child was freely intertained by the Mothers Father who demanded nothing during the time of the Intertainment and was holden as freely gâ—fâ—ed for all years before the pursuit Iuly 21. 1665. Laird of Ludquhairn contra Laird of Geight Vide Mother Aliment was found due upon a Bond of Provision granted by a Father to his Daughter obliging him to Intertain her till the Term of payment of her Portion which bear no Annualrent and that not only till the Term of payment but thereafter till her Marriage and even for years in which her Mothers Brother Alimented her Gratis after her Fathers Death but for no time of his Life seing she leâ—t her Fathers House upon pretence of her Step-mothers severity Ianuary 21. 16â—8 Steuart contra Laird of Rossesyth Alâ—ment of a Daughter by her Mother Married was â—ound due the Daughter being appearand Heir to her Father whose whole Lands the Mother Liferented though the Daughter Renunced to be Heir Iuly 16. 1667. Haâ—iltoun contra Symontoun Aliment was not found due to an appearand Heir who was Major and keeped a Brewary by a Liferenter whose Liferent was very mean and intertained one of his Children Ianuary 27. 1669. Stirling contra Heriot ANN was found to be the whole year wherein the Defunct dyed if he dyed before Michalmas and if he dyed after Michalmas and before Ianuary to be the whole year in which he dyed and the half of the next year but if he reached Ianuary dying in February he hath that whole year Iuly 5. 1662. Executors of Fairly contra his Parochioners Anâ— of a Minister having a Wife and no Bairns was found to divide equally betwixt his Wife and nearest of Kin Iune 24. 1663. and Iuly 19. 1664. Scrymzour contraâ— Executors of Murray Ann of a Minister dying after Michalmas and before Marâ—â—nmas was â—ound to extend to that years Stipend and the halâ— of the next Iuly 19. 1664. Inter â—osdem ANNEXED PROPERTY of the Crown was found not validly dissolved unless the dissolution had preceeded the Gift and Infeftment and had proceeded upon weighty Reasons by a special Act and not by a Clause iâ— a Ratification of the Gift February 25. 1669. Kings Advocat contra Earl of Mortoun and Viscount Grandiâ—ound absent ANNVITY of Teinds included being in question it was recommended to the Parties to settle but the Lords inclined to Liberat the Teinds Ianuary 10. 1662. Laird of Rentoun contra Ker. ANNVS DELIBERAND I was found to
Substitution was found not jure accrescendi to belong to the Surviver but 〈◊〉 Heir Substitute to the Deceassing without Children yet so as not to be lyable as Heir in solidum but quo ad valorem Iuly 3. 1666. Fleming contra Fleming A Clause in a Writ bearing a Narrative as a Testament and leaving such a 〈◊〉 Heir and Donator to such Tenenements and Assigning him to the Evidents with power to him after return to Recal was found effectual though not formal to inforce his Heir to perfect the same Ianuary 31. 1667. Henrison contra Henrison The same was renewed upon full debate November 4. 1667. and the being of the Writs in the granters hands after his Retuâ—n was found a sufficient Evidence of Recalling it but its coming back in the hands of the other party was found not sufficient to Revive it but they were ordained to instruct how they came by it whether as delivered back again by the Granter or found amongst his Papers November 14. 1667. inter cosdem A Clause obliging a party to pay such a sum as being the Annualrent of such a sum without any obligation for paying the principal exprest was found not to imply an obligement to pay the principal as acknowledged due but was found to constitute the Annualrent perpetual and not for the Womans life though it exprest not Heirs and Assignâ—ys February 2. 1667. Power contra Dykes A Clause in a Bond bearing a sum to be lent by a Father for himself and as Administrator for his Son aâ—d payable to the Father and after his decease to the Son but bearing that it was the Sons own Money not expressing how or from whom it came was â—ound to constitute the Son Feear and the Father Naked Liferenter February 14. 1667. Campbel contra Constantine A Clause disponing Lands was found to carry the Miln if the Lands were a Barony or if the Miln was not exprest in the Authours own Right otherways that it could not pass as part and perâ—inent February 15. 1667. Countess of Hume contra Tenents of Oldcambus and Mr. Rodger Hog A Clause in a Contract of Marriage whereby the Husband is obliged to take the conquest to the future Spouse in Conjunctâ—ee and the Heirs betwixt them Which failing the Heirs of the Mans Body which failing the Wifes Heirs whatsoever was found not to constitute the Wife Feear upon the â—ailing of Heirs of the Mans Body but the Husband February 20. 1667. Cranstoun contra Wilkison A Clause in the dispositive part of a Charter Cum privilegio piscaudi in aqua c. was found not to be a sufficient Right of Salmond-fishing unless Salmond-fishing had been thereby possesâ— forty years without interruption and so it is only a Title for Prescription February 27. 1667. Earl of Southesk contra Laird of Earlshall A Clause in a Bond bearing sums to be payed to a Man and his Wife and their Heirs beaâ—ing Annualrent though no Infeftment followed was found to give the Wifes Heirs no share seing the Money appeared not to have been hers and was presumed to be the Mans and he surviving did Revock the Substitution as a Donation betwixt Man and Wife Iune 19. 1667. Iohnstoun contra Cuninghame A Clause in an Assignation by a Father to his Daughter bearing a power to alter during his Life was found not to take effect by an Assignation to a third party who instantly granted a Back-bond bearing his Name was but in trust to do diligence and obliging himself to denude in favours of the Father his Heiâ—s and Assigneys but was not found to operate for the Fathers Heir but for the Daughter his Assigney Iuly 17. 1667. Scot contra Scot. A Clause in a Tack setting 14. Aâ—kers of Lands presently possest by the Tacks-man was found not to limite him to 14 Aikers of any present Measure seing he had possessed still since the Tack these 30. years albeit it was alleadged that besides 14. Aikers there were six Aikers severally â—enned and possest by different persons before that Tack Iuly 19. 1667. Daeâ— contra Kyle A Clause in a Bond bearing a sum borrowed from Husband and Wiâ—â— and payable to the longest liver of them two in Conjunctfee and to the Heirs betwixt them or their Assigneys which failing to the Heirs or Assigneys of the last liver was found to constitute the Husband Feâ—ar and the Wife Liferenter albeit she was last liver and the Heirs by the last Clause were but Heirs of provision to the Husband in case the Heirs of the Marriage failed Ianuary 26. 1668. Iustice contra Barclay his Mother A Clause in a Bond whereby a Woman obliged her self to enter heir of Line to her Father and to resign certain Lands in favours of her self and the heirs of her body which failing to the heirs of her Father and obliged her self to do nothing contrary to that Successionâ— whereupon Inhibition was used before her Marriage was found effectual against her and her Husband whom she Married thereafter and disponed the Lands to him and his heirs as being a voluntar deed without an equivalent cause onerous albeit by the said Bond of â—ailzie the heir of provision behâ—ved to be the heir to the Woman her self without discussing whether deeds done for causes onerous without collusion would be effectual against the said heir of provision Ianuary 28. 1668. Binnâ—â— contra Binnie A Clause in a second Contract of Marriage that the heirs of the Marriage should have right to Tacks acquired during the Marriage was found to extend to a new Tack obtained of Lands then possessed by the Father unless he had a Tack thereof before in Writ which if not expyred the new Tack would not be esteemed conquest if the new Tack were given for the old Iuly 3. 1668. Frazer contra Frazer A Clause in a Testament leaving a Legacy to a second Son in satisfaction of all he could befal by his Fathers deceass was found not to be in satisfaction of a debt due by his Father to that Son as having uplifted a Legacy left to him by his Mothers Father both not being above a competent provision by a Father in his condition to his Son December 15. 1668. Winâ—â—â—am contra Eleis A Clause in a Contract of of Marriage providing all the Husbands Goods and Gear acquired during the Marriage to the Wife for her Liferent use was found to be with the burden of the Husbands debt and only to be meaned of free Gear and not to exclude the Husbands Creditors at any time contracting December 23. 1668. Smith contra Muire A CLAVSE OF CONQVEST in a Wifes Contract of Marriage who was competently otherwayes provided was â—ound to carry the Lands conquest with the burden of a sum which the Husband declared under his hand to be a part of the price though the same would not hold in the burdening of heirs of conquest December 20. 1665. Lady Kilbocho contra Laird of Kilbocho This sum was due to the Seller of
as if it has been a poinding of the Ground February 13. 1669. Mclellan contra Lady Kilcuâ—bright An Infeftment to be holden of the Superiour not Confirmed waâ— found null albeit it was only granted for Security of â— Wiâ—es â—iferent conform to her Contract of Marriage Iuly 2â— 1669. Gray contra Ker. An Infeftment of Annualrent was found extinct by the Annualrenters intrometting with the Annualrents of the Lands equivalent to the principal sum February 4. 1671. Wishart contra Arthur An Infeftment was found null by reply without Reduction whereby a Woman was served Heir to her Mother in a Teneâ—entâ— in which her Mother and Father were infeft in Conjunct â—ee albeit she had probable Ground to think her Mother was Feear seing her Father was found to be Feear and that she was not 〈◊〉 〈◊〉 by Retour but by precept of favour here seven years possession was not alleadged to give the benefite of a possessory judgement Iuly 1â— 1671. Gairns contra Saâ—â—ilands â— Infeftment Vide base Infeftment INHIBITION was found not to Reach Lands acquired after it lying in another jurisdiction then where it was published and Registrate Iuly 18. 1662. Smeateun contra An Inhibition was found to be valide to reduce or declare against the Person Inhibite not only for the Lands he had the time of the Inhibition but these acquired thereafter December 15. 1665. Eleâ—s contra Keith An Inhibition of Teinds was found sufficiently execute by a Sheriff in that part and not by a Messenger being direct to Messengers Sheriffs in that part which was sufficient to interrupt tacit Relocation Ianuary 27. 1666. Earl of Eglintoun contra Laird of Cunninghamehead Inhibition being used on a Sum was found sufficient to reduce and that the Inhibition and Reduction thereon could not be purged by payment of the sum whereon it proceeded with Annualrent and Expenses seing there was a supervenient appryzing upon the Sum which was now expyred February 24. 1666. Grant contra Grant Inhibition was found to extend to Rights acquired after the Inhibition but not to a Wodset acquired after and Renunced upon payment without abiding an Order albeit Renunciations be by the style of the Inhibitions prohibite yet they are but as Discharges of â—eretable debts or annualrents against which Inhibitions operate not to cause them pay again Iuly 16. 1667. Eleis contra Keith and Steuart Inhibition was found to extend to Lands acquired after the publication thereof lying in the Shire where it was published February 27. 1667. inter eosdem Inhibition on a Dependence was found to take no effect whâ—re no judicial Sentence followed but a Transaction on arbitriment December 16. 1668. Frazar contra Keith An Inhibition was found to reduce a disposition though its date was anterior to the Inhibition as to some Creditors whose Names and sums were filled up in it by another hand which was presumed to have been blank and filled up aâ—ter ter Inhibition unless the contrary were proven by Witnesses above exception Ianuary 15. 1670. Lady Lucia Hamiltoun contra Creditors of Montcastle An Inhibition was found null because the Executions thereof bear not a Copy to have been left at the Mercat Cross where it was published February 12. 1670. Naper contra Gordoun of Grange Inhibition of Teinds was found not to give Right to draw the Teind without Sentence where the Hereâ—or had any colourable Title Ianuary 27. 1665. Barefoord and Bennistoun contra Lord Kingstoun Inhibition was found Relevant to Reduce the Rights of Creditors albeit there was a Disposition to two Parties for themselves and for the behove of other Creditors under-written after which there was a large blank filled up with an other hand in which the Creditors in question were insert which blank so filled up was holden as after the Inhibition and a prior communing to take in these Creditors and undertaking their debts by the persons to whom the Disposition was made was not Sustained to be proven by their oaths or by the oathes of Witnesses but only by Writ or oath of knowledge of the Pursuer Iuly 8. 1670. Lady Lucia Hamiltoun contra Boyd of Pitcon and others Inhibition being pursued upon to Reduce and the Pursuer offering to accept the Sums in the Inhibition cum omni causa albeit there was an expyred Compryzing led upon the Sums the Defender craving that the Pursuer would assign the Sums The Lords found that the Pursuer could not be compelled to assign the same in respect the offer was only to take satisfaction and Renunce whereby the Cautioner might not be distrest Inter eosdem Inhibition was found null by Declarator because the Executions as they were Registrate did not bear a Copy given to the party inhibite albeit the publication at the Mercat Cross bear a Copy affixed and that the Messenger had added upon the Margent the delivery of a Copy which was found an essential requisite in the Execution and that not being Registrate with the Execution the same was null and could not be supplyed by proving by the Witnesses insert thaâ— a Copy was truely given against a singular Successor who had bought the Lands for a just price Iuly 28. 1671. Keith contra Iohnstoun â—INTERDICTION against a Defunct was found only to extend to the Lands lying within the lurisdiction where it was published and Registrate but not to the other Lands nor to Heirship moveable or other moveables so that the Heir succeeding therein is lyable notwithstanding February 11. 1662. Ramsay of Torbane contra Mcclellaâ— Interdiction albeit it be not Sustainable by way of Defense to delay a pursuit yet it was sustained by way of Reply seing the pursuer might delay himself â—â—d that otherwise he behoved to quite the Possession and then Reduce to recover it again February 13. 1663. Lockhart contra Kennedy Inâ—erdiction of a Man by â—ond bearing he should not sell nor dispone without consent of his Wife on the Narrative of his facility whereupon Inhibition was used was found not to stand as an Interdiction being inconsistent to bind a man to the direction of his Wife but that it stood in so far as might be interpret an obligement in the Wifes own favours for her proper interest to secure her an Aliment according to her quality February 27. 1665. Laird of Milntoun contra Lady Milntoun Interdiction was found to give interest to Appryzers or Adjudgers from the Heir of the Person interdicted to reduce any voluntary Disposition thereupon albeit they had no special Title to the Interdiction but had only appryzed the Lands of the person Interdicted cum omni jure and albeit there was an anterior Appryzer the benefite of the Interdiction was found appropriat to neither but common to both February 20. 1666. Lord Saltoun contra Laird of Park and Rothemay Interdiction was found not to have any effect as to Moveables or personal Execution by may of Exception without Reduction Iune 20. 1671. Crawfoord contra Hallyburtoun INTERRVPTION of the Prescription of a common Pasturage
contra Strangers of Oâ—â—end but the Kings 10th part and Admirals 15th part were not allowed A Pryze Ship of Hamburgh taken as carrying Counterband-Goods to the Daâ—es after Acts of Hostility betwixt the King and them was liberate because she was taken before the Proclamation of the War against the Danes but the Captain was found to have probable Ground to Seaze and was found only lyable for what profite he had made of the Ship and Goods unless he had been thâ— culpa by the spoiling or mis-appryzing thereof February 25. 1668. Merchants of Hamburgh contra Captain Disâ—ingtoun A Pryze Ship belonging to the Sweds was found Warâ—antably taken because she was Navigat with Hollanders the Kings Enemies contrary the Kings Proclamaâ—ion of War albeit they hâ—d a pass conform to the Swedish Treaty wherein it is permitted to the Sweds to make use of Hollanders as Masters he becoming a sworn Burges of their Town without mention of what Nation the remnant company mighâ— be of February 25. 1668. Owners of the Ship called the Castle of Riga contra Captain Seaâ—oun A Prize Ship was found justly adjudged because a great part of the company were Hollanders in respect of the Kings Proclamation of War ordaining Ships to be taken that had in them any number of men or goods belonging to Enemies albeit the Ship was a Swedish Ship and had a pass conform to the Swedish Treaty which bear that such a pass being found there should be no further inquiry in men or goods â—isi gravis suspitiâ—o subsit seing that Treaty bear a liberty to the Sâ—eds to have a Hollands Master becoming a sworn Burges of any Town of Sweden and had no such priviledge for the mariners Iune 30. 1668. Paterson contra Captain Anderson A prize Ship was found justly taken being insisted against on several grounds as having a number of the Kings Enemies the Hollanders Sailers being only proven to be three and the company nine as having been two years with the Kings Enemies Merchandizing but not in the War and by having a small parcel of Tar as Counterband in the same Voyage upon all joyntly the Lords declared but not upon any point alone Iuly 9. 1668. Captaâ—â— Allan contra Parkman In prize Ships competent and omitted as a particular custom of Scotland was not sustained against the strangers but they were found to have the benefite of the Law of Nations Iune 15. 1669. Loyson contra Laird of Ludâ—uharâ— and Captain Wilson A prize Ship declared as carrying Counterband having on Board Oak cutted at three foot and an half for making Barrels in respect the Admirals Commission bear Clapboard as counterband though Testimonies from the Admiralities of England Holland and Flanders were produced that such Timber was not accompted counterband a great number of the Lords being of a contrary judgement Iune 29. 1669. Captain contra A prize Ship being in question which being alleadged to be fraughted from Norway to London with Timber by the Kings proclamation warranding Ships even of his Enemies Countreys to be imployed for bringing Timber for the Rebuilding of London they getting certificates and passes from the Duke of York the Ship having on Board 1500. Dails not belonging to the London Merchants the same was found sufficient to confiâ—cate the Ship and these Dails but not to confiscate the Cargo belonging to the English Merchands if he could produce a pass conform to the Proclamation and the Kings Letter bearing that he was sufficiently informed that this Ship had a valide pass and therefore ordering her to be restored was not found Relevant to liberate the Ship or Merchants Cargo without production of the pass but the Letter was understood to be â—alvo jure not proceeding upon the hearing of parties albeit the Duke of York did asset that he had formerly given a pass to that Ship Iuly 13. 1669. Captain Wood contra Neâ—lson here the Skippers Testimony alonâ— was received to prove against the Owners A prize Ship being adjudged by the Admiral and the Decreet being quarrelled because the Skipper had a pass declaring the Ship and Goods wholly belonging to the Sweds the Kings Allys the pass was conform to the Swedish Treaty which clears expresly that where such passes are â—eqâ—id amplâ—s exigatur in bonâ— aut homines nullo modo inquiratur The adjudication was sustained in respect that the pass by the oath of the Skipper and company was found to be a contrivance and there was no sufficient probation that the Ship and Goods belonged to the Sweds and that the Treaty bears si qua gravis suspâ—â—io subsit that seazure may be made Iune 29. 1671. Burrow contra Captain 〈◊〉 A PVPILS person was found to be keeped by her Mother who was Widow till her age of eleven years and then by a Friend of her Fathers side but not by the Tutor who was nearest to succeed February 6. 1666 Laird of Dâ—ry contra Relict and Daughter of his Brother RATIHABITION Vide Clause Ianuary 9. 1663. Mason contra Hunter RECOGNITION committed by a Defunct's alienation was not stopped upon the priviledge of Minority quo minor non tenetur placitare c. February 19. 1662. Lady Carnagy contra a Lord Cranburn Recognition was not clided because as importing ingratitude which is criminal it was purged with the death of the Committer but was sustained against his Successor Ibidem Recognition was found to be incurred by alienation of Ward Lands albeit the Seasine taken was without the Acquirers Mandat subscribed but by a general Mandat out of the Chancellary seing it was taken by his Grand-father giver of the Alienation and albeit the Disposition bear only â—ailing of the Disponers Heirs of his Body seing it had a Warrand for seasing this party de preseâ—ti nominatim nor was it reduced upon Minority to annul the Seasine and shun the Recognition Ianuary 30. 1663. Inter eosdem Recognition was incurred by giving an Infeftment base to a Grand child not being then alioqui successuruâ— of Ward Lands though Taxed Ward and though granted to Heirs and Assigneys which was only understood that the Disposion Charter or Precept before Seasine might be assigned but not after nor was it respected that the Seasine as not Confirmed was null nor that it implyed a tacit condition that the Superior consented nor that the Giver was an illiterat person and the case dubious here the case was favourable for the Donatar who was the Disponers eldest Daughter and who was past by and the second Daughters Heirs though strangers were preferred in all February 5. 1663. Inter eosdem A Donatar of Recognition granting a Precept to a Vassal in the Lands falling in Recognition acknowledging that Vassals predecessors Right and his own in the ordinary Terms of a precept of clare constat albeit the precept did also bear in obedience of Precepts out of the Chancellary yet the same with the Seasine following thereon was found to exclude the Donatat and all deriving Right from him thereafter
a simple Renunciation competent to the Superiour to exclude the Terce and that she could brook no part â—f the Land by vertue of her Terce and that the Superiours founding upon the clause accepting Lands in satisfaction of the Terce did not import his approbation of her Right to the Lands accepted seing she wanted the Superiours consent as being an essentiâ—l requisite to her Infeftment of Ward Lands and so could admit of no Homologation more than if she had only the contract without any Infeftment This was stopped to be farder heard whether the Relict might brook at least a third of the Ward Lands accepted as a Terâ—e of these Lands though she could not brook the whole Ward Lands accepted being within a Terce of all her Husbands Ward Lands especially since the Clause bear that she accepted the Liâ—erent Lands in satisfaction of all farder Conjunct fees but should be repuâ—â—ed a Terce as being in lieu of all farder Terce whether in that case she renunced only the Terce of any other Lands buâ— not the Terce of the Lands accepted Iune 23. 1671. Lady Baâ—â—â—agan contra Lord Drumlanrig THE TERM OF PAYMENT of Bairnâ— pâ—rtions 〈◊〉 at such aâ—â— age the same was found as dies 〈◊〉 qui pro conditione habetur and they not attaining that â—ge theiâ— nearest of Kin had no right Ianuary 17. 1665. Edgar contra Edgar A TESAMENT Nuncupative by a Scotsman made in England or abroad where he resided was found null as to the nomination of Succession notwithstanding the Law of the place which rules only as to the Solemnities of Writs but not to Substantials or appoynting of Successors Ianuary 19 1665. Schaw contra Lennox A Testament containing a Legacy of a Wodset was sound void though it was done 〈◊〉 prâ—â—inctu belâ—i February 21. 1663. Wardlaw contra Frazer of Kilmundy A Testament confirmed beaâ—ing persons to be nominate Tutors and that they compeared judicially accepted made Faith and found Caution was found not sufficient to defend against a Reduction without production of the Tutors Subscription as the warrand to make the Tutor lyable for the Pupils means conform to the Inventary unless there were other adminicles to astruct the same albeit the confirmation was thirty seven years since seing the acceptance was no ordinary act of process nor no process was moved upon the confirmation till of late Iaâ—uary last 1665. Kirktoun contra Laird of Hunthil A Testament confirmed was found to be execute at the Executors instance by a Decreet though he had not obtained payment anâ— though he was Executor dative and a meeâ— stranger so that after the Executors death the sums in the Decreet could not be confirmed by an Executoâ— ad non executa of the first Defunct November 17 1666. Dounâ—e contra Young A Testament was reduced because the Testator being alleadged not to be compos mentâ—s the Nottar Writeâ— and Wiâ—nesses insert and other extraâ—eous Witnesses deponed that about the time of the Testament and thereafter the Testator was not in his right mind and to every question that was proposed answered alwayes yea yea although they were not present at the making of the Testament and were contrary to the Witnesses insert this was stoped to be further heard Iune 9 1668. Meallâ—xander contra Dalrymple A Testament beginning in the ordinary stile of a Testament and then disponing Land thereafter containing a blank wherein by another ink and hand the Defuncts eldest daughter was named universal Legatrix and Executrix but after all the moveables were disponâ—d to the eldest Daughter which Testament being quarrelled by reduction was found null as to the disposition of the Lands and as to the nomination of the Executor and Legatar the same was not sustained though filled up before the Defuncts death albeit it was offered to be proven by the Nottar and Wâ—tnesses insert that the Defunct gave warrand so to fill it up but it was sustained as to the disposition of the moveables as a Legacy in so far as the Defunct could Legat which may subsist though the nomination of the Executor be wanting or void Iuly 13. 1670. Daughters of Soâ—ityay contra the eldest daughter Testament Vide clause December 15 1668. Windrham contra Elâ—is THIRLAGE was found constitute by long custom of payment of Intown Multure in mollendino regâ—o but was not extended to the Teâ—nds of that Barony though possest promiscuâ— far above fouâ—ty yeaâ—s without more then custom and was not excluded by the Feuers of the Barony their Feus granted by the King cum mollendiniâ— mulâ—uriâ— in the teneâ—das only which was thought but past in the Exchequer of course without observation Ianuary 8. 1662. Steuart contra the Feuaâ—s of Aberledno The like without allowing any part of the cropt multure free for expences of labour and Hinds-corn but only the Seed Horse-corn and Teind Ianuary 14. 1662. Nicolson contra Fâ—uars of Tillicutrie Thirlage was sound constitute by an old Decreet against the Tennents possessors without a calling their Master and long possession conform thereupon albeit the Heretâ—r was Infeâ—t cum mollendiâ—â—â—â— and that Witnesses being examined hinc inde conceâ—ning the possession and interruption by going sometimes to other Miâ—ns were proven yet not so frequently as might not be Olandestine Iune 24 1665. Collonel Montgomerie contra Wâ—llaâ—e and Râ—ie Thirlage was inferred where the Feuer of the Miln was Infeft in the Miln with the mulâ—ures of the Lands in question per expressum and was in possession of insuckâ—n Multure thereof fourty years albeit the Defendeâ— was infeft before without the burden of astriction and did sometimes go to other mâ—â—ns which being frequent in all astrictions was found not to be a competent interruption Iune â—9 1665. Heretoâ— of the Miln of Kâ—thick contra Feuars Thirlage was infeâ—red by infeftment of a miln with the multures c. generally with a precept from a Bishop then Heretor of the Lands in question ordaining his Tennents to pay their multuâ—es to that miln which with long possession was found sufficient albeit it had no consent of a Chapter December 7 166â— Vâ—â—tch contra Duncan Thirlage being constitute by an infeftment from him who 〈◊〉 〈◊〉 of Land and Miln was found no to be prejudgeed upon the alleadged insuâ—â—â—ciency of the Miln unless the insufficiency were alleadged to be through the fault of the Heretoâ— of the Miln February 9 1666. Heretors of 〈◊〉 contra Feâ—ars Thirlage was not Inferreâ— by an infefâ—ment of â—ands with such a miln and the multures used and woâ—t which was not extended to Lâ—nds of another Barony â—olden of another Superiour though they then belonged to the Disponeâ— and were in use to come to that miln December 11 1666. Earl of Cassils contra Tennents of Dalmortoun Thirlage though constitute by a Vassal hath no eâ—â—ect against the Superiour during the Vassals Ward unless the superiour consented neither is his consent inferred by his receiving an Assignay to the Appryzing with reservation of the multures in the