of a Subject A person being charged with Precepts out of the Chancery to Enter a person presented upon forefaulture and in respect of his Contumacy the person presented being Infeft upon a Precept out of the Chancery and thereafter deceasing Quaeritur the Lands holding Ward whether the Marriage of the appearand Heir will belong to the King or to the Superior Ratio Dubitandi That the Superior not having owned the defunct to be his vassal he cannot claim the Marriage of his Heir and on the other Part The King is not Superior and grants only Infeftment in Subsidium and doth what the Superior without reason refused to do and there is a great difference betwixt the case foresaid and that when the Superior not being Infeft himself is therefore charged to Enter with certification to Lose the Superiority during his Life Because in the first case there is no contempt of the Superior but a wrong done to the person who would enter being a stranger to the Superior not being formerly his vassal and in the other case there is both a wrong to his own vassal and a contempt of his own Superior that he is in non-entry and the more aggravated that being charged to enter he continues in non-entry and the act of Parliament therefore provides that he should Lose the Superiority It is informed by Iames Hay That the Lords have lately found That when Lands are holden some simple-Ward and some taxt both the single and taxt Marriage will be due The President being of another opinion If a Superior Infeft his Vassal being Minor before the Marriage fall by his attaining to the age of fourteen years may he claim the Marriage after it falleth If he Infeft him after the Marriage has fallen whether doth he pass from the Marriage Marriage Clandestine BY the act of Parliament anent unlawful Ordinations these who are so Married amitting jus mariti relictae Quaeritur If the Husband Loseth his Curiality or the woman her Terce Or only Jus mariti as to the Communion of moveables Acts Specially penal being stricti juris and there being beside other pains If Clandestinae Nuptiae without consent of Parents though they bind the parties so that they cannot Marry with any other yet will be null as to Parents and friends that the Children cannot succeed to them against their will Materna Maternis IF in no case that Maxime Materna Maternis has place with us And in special in that viz. if a Person succeed to his Mother and decease without Heirs upon the Fathers side will the Fisk exclude the Mothers friends the Estate being profectitious and descended from her In Allodialibus there is no succession of the Mother or her friends active but in feudis foemineis if a Son should succeed to his Mother and should thereafter Die Quaeritur whether his Heirs upon the Fathers side would succeed to such Lands or his Mothers Heirs Ratio Dubitandi That the said Lands are given ab initio primo investito and his Heirs which must be understood haeredes Sanguinis and the son having succeeded to his Mother his Heirs upon the Fathers side cannot be thought to be Heirs either to her or her predecessors and therefore in that case it is to be thought that the Rule should have place Materna maternis and there is the like reason in Patents of Honour being quasi feuda and being granted by the King to the receiver of the Patent and his Heirs A Person as said is being infeft in Lands as Heir to his Mother and dieing without issue whether will his nearest Kinsman upon the Fathers side or Mothers side succeed to him in the said Lands Ratio Dubitandi That by our custom the Fathers friends are alwayes preferable and that Rule Paterna Paternis Materna Maternis has no place and yet it is thought that in mobilibus when a person has Right to the same as Executor to his Mother they go to the nearest of Kin upon the Fathers side Because there is no affectio as to mobilia and there is no Limitation or Destination of Heirs as to these But as to Lands when the Right is taken to a man and his Heirs and a woman succeeds to the said Lands and thereafter her son as Heir to her if the son die without issue his Mothers Heirs ought to succeed Seing by the Infeftment no person can succeed but he that is Heir of blood to the person first infeft either immediately or mediately Quid Juris as to Bands for Sums of money Answer It appears that there is eadem Ratio Seing there is in bands Limitatio haeredum Matrimonium SOla nuptialis benedictio solennis publicus in Ecclesia benedicendi ritus vera est Matrimonii apud Christianos executio ex quo tempore jura Matrimonii vigorem suum obtinent Licet concubitus non fuerit secutus Christenius de jure Matrimon Disser 1. quaest 1. Si post sponsalia pura concubitus accesserit sponsa conceperit sponsus vero ante confirmationem diem obierit de jure partus non est Legitimus quia non est ex justis nuptiis Idem-eadem disser Quaest 2. Isto casu licet interdum Sponsalia habeantur pro Matrimonio illud locum habet solummodo quoad vinculum mutuae promissionis ne illud temere solvatur non quoad reliquos Matrimonii effectus Idem eadem diss Jure Civili Divino Canonico non aliter Legitimum est Matrimonium quam si Parentes consentiant nec minus Matris quam Patris consensus requiritur praesertim mortuo Patre Non interest utrum consensus sit expressus an tacitus paria enim sunt consentire non contradicere Idem de sponsalibus Diss 1. quaest 3. p. 17. 18. Parentibus non permittitur Matrimonium impedire si id fiat injuria cum causa sit cognoscenda Statutis quarundam Civitatum cautum est parentes isto casu ad Judices Ecclesiasticos seu Commissarios causarum Ecclesiasticarum esse citandos si Liberi sint minores viginti quinque annis non tenentur parentes rationes sui Dissensus proferre sin Liberi annum vigesimum quintum expleverint Parentum oppositio non aliter locum habet quam si justas Dissensus causas proferant Ibid. P. 19. Si Titiae ea conditione Legetur si arbitratu Seij nupserit habetur pro non adjecta debetur Legatum licet conditioni non pareatur Christen de spons quaest 17. Si ad sponsalia clandestina quae consensu Parentum carent concubitus accesserit non confirmatur Matrimonium si parentibus justae causae sint dissensus haec sententia curijs Holland placuit idem quaest 20. Mensis SI Mensis simpliciter proferatur intelligitur de mense solari Duodecima parte anni vel triginta Diebus Thes Bes in Litera M. 68. verbo Monat p. 664. Mensura Taxative Demonstrative INterest utrum Mensura in venditionibus Taxative an vero
to his Heirs and assigneys And thereafter having Disponed certain Lands for implement of the said Contract to the eldest Son he had then of the said Marriage which FailÈieing to his oun Heirs and Assigneys Quaeritur If the eldest Son and his forsaids will be lyable to all precedent Debts as Successor titulo lucrativo Ratio Dubitandi That he was only a Son of a third Marriage and his Father had Sones of a former Marriage Answer It is thought he will notwithstanding represent his Father In respect the said Right is for implement of the said Contract as said is and if the said Sum had been employed conforme to the Contract he would have represented his Father And by the said Right he represents him per praeceptionem And that he would be lyable suo ordine as Heir of the Marriage the Heir of Line being discust Quaeritur In the case foresaid if the said Son of the third Marriage will be lyable to Debts contracted after his Right by his Father Seeing his Father is obliged that he should succeed him in the Right of the sa d Sum And the Creditors ought not to be in worse case than if the said Sum had been employed and Successores titulo lucrativo are not lyable to posterior Debts when the Right granted to them is mera Donatio So that their Father was not obliged that they should succeed And the Father was a Merchant and continued his Trade thereafter and became Bankrupt vide Heirs Quest 3. in Litera H. If a Gentleman by his Son's Contract of Marriage dispone his Estate to him will he be lyable to all the Debts or only effeirand to the value of the Right An Uncle having Disponed to his Nephew his Lands or others being for the time his appearand Heir and having Died without Children Quaeritur whether he be lyable as Successor Titulo Lucrativo Ratio Dubitandi he was only presumptive Heir And the Uncle might have had Children if he had married again And upon the reason forsaid if the Lands had holden ward they would have recognized An Appearand Heir being Infeft in Liferent in Lands to which he might have succeeded Quaeritur whether he will be Successor Titulo lucrativo specially if the Liferent be settled upon him and the Fee upon his eldest Son Singular Successors QVaeritur If the Act of Parliament anent Registration of Seasins as to singular Successors should only be understood such as have acquired Right from the common Author and not Comprysers and such as succeed upon account of Forefaulture Sums heretable and movable Lands being Disponed by a Contract and the Buyer being obliged to pay the Price Quaeritur whether the Seller's Heirs or Executors will have Right to the said Price Ratio Dubitandi The Price cometh in Place of the Lands and the Heir will be obliged to denude himself of the Right of the Lands the Disponer's obligement being only prestable by his Heirs So that it seems the Heirs should have Right to the Price On the other part the quality of heretable or movable depends upon the arbitrium and Destination of the Creditor himself and it appears that the Disponer having sold his Lands for a Price he intended in lieu of an heretable Estate to have only a movable Estate in Money not to ly in the Buyers hands but to be employed as the Disponer should think fit either for Tradeing or otherwise So that the said sum should belong to his Executors Quaeritur If Sums consigned for Redemption of Land be of that same nature Ratio Dubitandi It appears there is a difference upon that consideration that a Person who has a Redeemable Right does not desire his Money and the Reversion is in Rem so that the Sums due thereupon appear to be heretable untill they be uplifted surrogatum sapit naturam surrogati Sums movable A Sum being due upon a Wadset with the ordinary clause that by the premonition and charge that should follow the Infeftment should not be loused untill payment Quaeritur If after Execution used the Sum becometh movable Ratio Dubitandi It is yet due upon Infeftment and it cannot be conceived that the Executors or Donator should have Right to the Infeftment being only in favours of the Heirs Eldest superior WHen Lands are holden Ward of diverse Superiors The eldest Superior and antiquior is preferrable as to Mariage Quaeritur the forsaid quality of antiquior whether it is to be considered in relation to the Vassal so that the superior that he did first hold of is to be thought antiquor Or if it be to be considered in relation to the feudum it self so that the feudum that was first constitute by a grant from the King to the Vassals authors should be thought antiquius Quid Juris If a Person be infeft as Heir to his Mother or her Father to be holden Ward and thereafter be infeft as Heir to his Father the Lands also holding Ward whether of the Superiors will have Right to the Marriage A Person being infeft in Lands holding Ward and thereafter being infeft upon a Comprysing in Lands holding of the King Quaeritur If the Marriage through his decease will fall to the King or the other Superior during the legal Ratio Dubitandi a Right by comprysing is only for security and Redeemable Superior mediat THe immediate Superior being found to have amitted his Superiority during Life because being charged he did not enter Quaeritur If the mediat may infeft upon Resignation being only Superior in that part and in subsidium that the Vassal should not have prejudice by his immediate Superiors nonentry but not ad alios effectus which may prejudge the immediate Superior and in special that by obtruding to him a singular Successor to be his Vassal That same question may be in the case of Ladies Liferenters and Conjunctfiars of Superiorities T. Tack A Tack being sett in April of certain Lands and Houses whereof some were possest for the time by the Tacksman by a verbal tack or Tolerance others sett to Tennants and the Tack bearing the Entry to be after separation from the ground in anno 1652. in which it was set Quaeritur A Compryser being publictly infeft befor separation if the Tack will not militate against a singular Successor the Entry being indebito tempore after the Setter was denuded Answer It appears that the Entry as to the commencement of the Tack was presently the time of the date Seing as to the Houses and some of the Lands the Tacksman was in natural possession and as to the grass of the Lands sett to a tennant the Entry though not exprest was at Whitesunday following and the entry mentioned in the Tack seemeth to be meant of the Tacks-mans Entry to Labour Interpretatio facienda ut actus valeat If at least the Tack should be invalid as to the Lands which were set to tennants as being not publick by possession Answer It is thought that a Tack being
to delay the Examination of the Witnesses until further diligence should be done to bring here the Messenger Me Refragante but ordained Colin to pay the expences And if it had been desired that if the Witnesses should die they should be holden as improving The Lords would have granted the desire D. 43. Carse contra Carse 8. Novemb. 1666. DOctor Carse having taken a Right of Annualrent out of Sir David Cuninghams Lands in the name and persons of Mark Carse of Cockpen and Adam Watt Writer and a comprysing thereafter deduced in their name to the behoof of the Doctor for some arrears of the said Annualrent not only out of the Lands out of which the Annualrent was due holding blench or feu but of other Lands holding Ward Charles Carse Son and Heir to the said Doctor pursued the said Mark Carse and the Heir of Adam Watt to denude themselves of the Right of the saids Lands conform to a Backbond granted by the said Mark Carse and the said Adam Watt declaring the trust In that trust it was alledged for the Defenders that they were content to denude themselves they being releeved of all hazard they might incur upon occasion of the said Trust and having that Right in their Person and to that purpose did offer a Disposition bearing a provision that the Right should be burdened with the relief of Wards Marriages and Ministers Stipends Cess and other such hazards It was Answered that the said Disposition ought not to be clogged with such a provision which would fright Buyers from purchasing the saids Lands and the pursuer was necessitat and had presently an occasion to sell the saids Lands And as to the incumberances and hazards which the Defenders should condescend upon they should be purged But as to the Marriage of Adam Watts Heir which was condescended upon there could be no hazard upon that account In respect the comprysing at the instance of Mark Carse and Adam Watt was the fourth comprysing which did only import a Right of reversion The first comprysing whereupon Infeftment had followed carrying the Right of property It was Duplyed that if it should appear that the former apprysings are either null or informal or satisfied the fourth Apprysing would carry the Right of property and consequently the Marriage The Lords Found that the Pursuer should accept the Disposition with the burden of the said relief Or in his option should secure the Defenders by a Bond with a Cautioner to releive them D. 44. Bowie contra Hamilton 10. Novemb. 1666. HAmilton of Silvertounhill having Disponed to James Bowie certain Lands whereto he had Right by Comprysing and the said James being removed at the instance of a Wadsetter and having Pursued upon the Warrandice contained in the Disposition It was alledged by Silvertounhill that though the Disposition did bear absolute Warrandice yet by a Margine subcribed it was restricted to warrand only the formality of the Comprysing and the truth of the Debt and the Executions It was Answered that the Warrandice being absolute in the Body of the Disposition was indeed qualified by the Margine that it should only be extended to the Warrandice of the Lands in so far as concerns the Apprysing and Sums thereinmentioned which are the words of the Margine and that the said Warrandice imports that the Disponer should not warrand simply but as to the Sums contained in the Comprysing so that in case of eviction Silvertounhill should only refound the same and the Pursuer was content to restrict the Warrandice to the Sums payed by him It was urged that there being Three kinds of Warrandice viz. Either absolute or only that the Comprysing was formal and the Debt just or a restricted Warrandice to refound the price in case of eviction the Last was Medium inter extrema and most equitable and in obscuris magis aequa interpretatio est contra Disponentem facienda qui potuit Legem apertius dicere And if it had been intended that he should warrand only the formality and validity of the Comprysing and reality of the Debt it had been so exprest Yet The Lords by plurality of Voices Found that the Warrandice should be interpret to warrand only the validity of the Comprysing and the reality of the Debt That being the most ordinary in Rights of Comprysing Sinclar alteri Harper D. 45. Cheine contra Christie 15. Novemb. 1666. GEorge Cheine Pursued Adjudication against David Christie of a Right of Annualrent which pretained to James Christie the said Davids Brother the Pursuer's Debitor James Cheislie Writer compeared and alledged he had Right to the Lands craved to be adjudged by an expired Comprysing of the property of the same against the said David Christie who had Right to the saids Lands and that the said James his Right of Annualrent was null being base and never cled with Possession The Lords Found that the alledgance was not competent hoc loco against the Adjudication and that the said debate would only be competent after the Adjudication when he should pursue a poynding of the ground The Lords Found the contrare before in an Adjudication Pursued by Sornbeg contra the Lord Forrester which practique was obtruded and not respected Because the Lord Forresters Right in that Case was clear And this the Lords thought hard Forrester being content to dispute his Right that a Right to his Lands should be established in the Person of another to trouble him But it were fit our Practiques were uniform And it appears hard that a Creditor who is a stranger and has not the papers in his hands and is not in a Capacity to pursue for them before he get a Title by Adjudication should be forced to Dispute his Debitors Right Newbyth Reporter D. 46. Abercrombie contra eod die FOund that a Pursuit upon an Assignation after the Summonds execute should not be Sustained though the Cedent concurred the Pursuit not being at his instance Newbyth Reporter D. 47. Kennedy contra Hamilton eod die THe Lords Found a Comprysing upon a charge to enter Heir null Because the person at whose instance the charge was had no Right to the Debt the time of the Charge the Assignation whereby he had Right being acquired thereafter so that the Charge was Inanis and without ground Me referente D. 48. Binning contra Farquhar Eod. die A Disposition being made by a Father in favours of a Son And thereafter the same Lands being Disponed by the Son in favours of his Brother in Law The said Rights were questioned by a Creditor as being fraudulent being Disponed by the Sons Contract of Marriage which though Onerous as to Provisions in favours of the Wife is not so as to the Son whom the Father could not advance or provide in prejudice of the Creditors But it was alledged that the Disposition made by the Son was for an Onerous Cause and by the Act of Parliament though a Right should be found fraudulent yet a third party acquiring bona fide
Bonds and to procure Discharges from the Creditors to Parkley and his Cautioners And nevertheless having payed the said Sums he did not take Discharges but Assignations to the saids Bonds which he filled up in the name of Sir Mungo Stirling of Gloret his own Creditor who did thereupon Arrest a Sum due by the Earl of Callender to Parkley Thereafter Captain Monteith having Right to Callendars Debt by Assignation from Parkley obtained a Decreet against the Earl which being Suspended upon double poinding It was alledged for Gloret that he ought to be preferred in respect of his Assignation and Arrestment whereunto it was Answered that Kinglassie being obliged as said is to pay the saids Sums had payed them and whereas he should have taken Discharges he had taken an Assignation Blank in the Assigneys Name and had filled up Glorets Name in the same So that Assignation being procured by him and lying by him and he being Master of it it was in effect his and he was in the same case as if the Assignation had been granted to himself and he had made a Translation to Gloret in which the Exception upon the obligement foresaid to relieve Parkley as it would have been competent against Kinglassie would have secluded also Gloret his Assigney by Translation In this Process Gloret his Oath being taken and he having declared that the Assignation was procured by Kinglassie and by him delivered to Gloret and that he payed nothing to the Cedent but that the Assignation was given to him by Kinglassie that he might be satisfied of certain Sums due to him be Kinglassie which he was to Discharge if he recovered payment by vertue of the said Assignation The Lords upon a Debate in praesentia preferred Monteith and found the Exception which was competent against Kinglassie if the Assignation had been to him and transferred by him to Gloret is competent against Gloret and that he is in the same case as if he had Right by Translation from Kinglassie This is most just and founded upon Law and Equity seing otherwayes Fraud cannot be obviate And in Law plus valet quod agitur quam quod simulate concipitur aut exprimitur And Fictione brevis manus Though it appear that it is but one Act viz. The Assignation made to Gloret yet in construction of Law there is two Acts viz. The granting the Assignation blank to Kinglassie which in the interim before it was delivered to Gloret was his evident and an Assignation immediatly made to himself and thereafter the filling up Glorets Name and the delivery of the Assignation to him which upon the matter is a Translation Spotswood for Monteith Lockheart Cuninghame Maxwell and Weir for Gloret D. 55. MckenÈie contra Fairholm Eod. die SIR George MckenÈie having intented Declarator and Reduction of a Bond Subscribed by him as Cautioner for his Father Ex eo capite that it was null ipso jure in respect he was Minor for the time and his Father was loco Curatoris to him and had not Authorized him at least could not be Author to him in rem suam It was alledged that he had not intented Reduction within the quadriennium utile And as to the Declarator of Nullity the reason was not Relevant In regard Bonds granted by Minors having Curators without their consent are Null they being interdicted eo ipso that they do choise Curators that they do nothing without them But Bonds granted or other Deeds done by Minors wanting Curators are not Null in Law but the Minors lesed by the same may crave to be Reponed Debito tempore by way of Reduction And that the Father though he be Tutor in Law for the Children being Pupils he is not Curator being puberes and of that Age that they may choise their their own Curators The Lords notwithstanding Found the Reason relevant and declared the Bond Null as to the Pursuer Quibusdam refragantibus inter quos Ego upon these Grounds that there is a great difference betwixt Tutors and Curators Pupills and Puberes the Father haveing by the Law power to name Tutors and consequently being Tutor of Law himself and having that Authority which may be derived and given by him to others whereas he has no power to name Curators to his Children when they are of that Age that they may choise themselves And though he should name Curators in a Testament his Nomination could not bind his Children And 2. If Children being Puberes should choise any other persons to be their Curators they would exclude and be preferred in that Office to the Father Whereas habenti Curatorem Curator non datur 3. If a Child should have an Estate aliunde and the Father his Son being pubes should cessare and be negligent in the Administration of his Estate there could be no Action against him for his omission which might be competent against him and his Heirs if he were Curator Gibson Clerk Sinclair for Fairholme the Defender Wedderburn and Lockheart for the Pursuer D. 56. Vrquhart contra Frazer Eod. die A Wadset being granted by Sir Thomas Vrquhart Elder and Younger of the Lands of Brae to Sir James Frazer for 24000 Merks and the Granters of the Wadset being obliged to warrand the Rental besides Custumes to be Twenty Chalders of Ross bear and to furnish Tennents and to cause them pay the said Duty and for each Boll undelivered Ten Merks Sir Alexander Vrquhart of Cromarty Donatar to the Escheat of the said Sir Thomas Elder and Younger pursues the Heir and Executor of the Wadsetter for the superplus of the Rent of the said Lands exceeding the Rent of the foresaid Sum for diverse Years In respect the Contract was usurary It was alledged by the Act of Parliament 247. Anno 1597. The Creditor cannot pursue for the superplus of the Annualrent but by way of Reduction of the usurary Bond or Contract with Concourse of his Majesties Advocate It was Replyed That Rei persecutoriâ he had interest to pursue for what was indebite payed The Lords Found That the Process could not be sustained without concourse of His Majesties Advocate The Act of Parliament being express that the Creditor cannot repeat the excrescence above the Annualrent unless he concurr with the Advocate to reduce which appeareth to be provided of purpose to oblige the Creditor to inform and concurr with the Advocate for reduceing so unlawful pactions D. 57. Vrquhart contra Cheyne Decemb. 8. 1666. SIR Thomas Vrquhart of Cromarty having disponed to Mr. William Lumisden a Tenement of Land and Salmond-fishing for Surety of 4000. Merks borrowed from Lumisden the abovementioned Sir Alexander Vrquhart having Right by Comprysing to the saids Lands and Fishing and reversion of the said Wadset pursued a Compt and Reckoning against Walter Cheyne having Right to the said Wadset and to hear and see it Found that the Sum due upon the Wadset was satisfied and payed by the said Walter and his Authors Intromissions It was alledged that the Wadset
being a proper Wadset without a Back-tack the Defender was not Lyable to Compt and tho he were he was not Lyable to Compt but since the date of the Right and for his own Intromission It was Replyed that it was a Right granted for security and that by the Contract of Wadset and the Eik to the Reversion thereafter the Right was redeemable upon payment of the principal and Annualrents that should be unsatisfied whereas in proper Wadsets there is an Antichresis and the Rents of the Land belongs to the Wadsetter in lieu of the Annualrents whereto the Debitor is not Lyable The Lords Found That though the Right was not clear and express that the Wadsetter should have Right for surety and until he be satisfied by Intromission or otherwayes yet the Reversion being in the Terms foresaid it was Actum and intended that the said Wadset should not be a proper Wadset but only for surety as said is D. 58. E. Cassils contra Whitefoord Eod. die THe Lands of Damertoun being a part of the Barony of Cassils and formerly holden Ward by the Lairds of Blairquhan Kennedies of the Earl of Cassils and now being in Ward through the Minority of the present Heritor who had Succeeded in the Right of the saids Lands being acquired from the Laird of Blairquhan The Tennents of the saids Lands Pursued a multiple poynding against the E. of Cassils and Whitefoord now of Blarquhan and the Heretor of Dalmertoun all pretending Right to the multures of the saids Lands The E. of Cassils alledged that during the Ward they should bring their Corns to his Miln of the Barrony of Cassils there being no Milns upon the Lands of Dalmertoun The Laird of Blarquhan alledged that he was infeft in the Lands of Blarquhan and in the Miln of Dalhovan upon a Right granted by Kennedy of Blarquhan cum astrictis multuris usitatis at such a time as Blarquhan had Right to Blarquhan and Dalhovan and to the Lands of Damertoun And that before the said Right granted by Kennedy of Blarquhan to John Whitefoord of Ballach Author to this Laird of Blarquhan the Tennants of Damertoun were in use to come to the said Miln and to pay the like multure and service as the Tennants of Blarquhan did and since the Right have been in use to come constantly to the said Miln It was Answered for Cassils that unless there were an express Constitution of Thirlage the said Lands of Dalmertoun being a distinct Tenement from the Lands of Blarquhan which hold of the King cannot be alledged to be astricted to the said Miln of Blarquhan And if it had been intended that the Lands of Dalmertoun should have been astricted It would have been exprest And when the same did belong to Kennedy of Blarquhan it cannot be said that it was astricted to his own Miln with the foresaid Servitude quia res sua nemini servit and he having Disponed his Miln it cannot be presumed that he would have Burdened his own Lands with a Servitude And though it were clear Kennedy had astricted the saids Lands of Dalmertoun yet he could not Constitute a Servitude without the Superiors consent in his prejudice when the Lands should Ward in his hands It was replyed by Whiteford of Blairquhan that the Superior had consented to the Thirlage in so far as John Gilmor and one Bonar having Comprysed the saids Lands of Dalmertoun from Kennedy of Blarquhan and having Assigned their said Comprysing to John VVhitefoord the said VVhitefoord by Contract did Assign the same to Kilkeren with a Reservation of the multures thereof to the Miln of Dalhovan And the said E. had granted a Charter to Kilkeren upon the foresaid Right The Lords thought That these Words Cum multuris usitatis do relate only to the quantity of the multures as to such Lands as can be shown to be astricted But before Answer to the Debate upon the said Charter and Reservation They ordained the Charter and Contract containing the Reservation to be produced That they might consider Whether it be in the Charter and how it is conceived and what it should operate if it were only in the Contract The Lords enclyned to think that a clear Reservation though there were not a preceeding Thirlage should import a Constitution as to these who accept or consent to such a Reservation D. 59. Leslie contra Leslie eod die PAtrick Leslie of Balquhoyn pursued a general Declarator of the Single and Liferent Escheat of John Leslie of Balquhoyn against James Leslie and his Spouse as nearest of Kin to the said John It was Alledged that the Horning was prescribed the Declarator being raised fourty years after the Horning It was Replyed That though Prescription should run against the King which was denyed yet in this case it could not The King being Minor the time of the Prescription diverse years and the Government being interrupted So that there was not Tempus utile during the Usurpation And the King is not in use to dispose of Escheats until application be made to his Majesty And by the Act of Parliament it is provided that the negligence of his Officers should not prejudge him The Lords Found That the Horning did not prescribe in respect of the Kings Minority and Interruption foresaid It may be asked If that reply of his Majestie 's Minority and Interruption were not competent And if the Escheat were gifted by a Lord of Regality or a Superior Quid Juris And it seemeth that a Horning being poena and once execute it doth not prescribe Seing the Rebel if he should survive fourty years his Liferent would fall to the Superior and there is no reason that he should Lucrari and be in better case ex culpa and by the continuance of his Rebellion for so long a time D. 60. Hume contra Creditors of Kello 12. Decemb. 1666. IN a Process betwixt Hary Hume and the Donator of the Forefaulture of John Hume of Kello and certain others his Creditors It was Found That a Comprising being deduced before January 1652 and being the first effectual Comprysing ought to be preferred to the posterior Comprysings so that they should not come in together pari passu In respect tho they were within year and day of the compleating and the making effectual the first Comprysing by Infeftment or Diligence yet they were not within year and day of the deduceing the said Comprysing and the said Comprysing being before the year 1652. doth not fall under the compass of the Act of Parliament concerning Debitor and Creditor which bringeth in pari passu Comprysings led since January 1652 and being Correctoria Juris Communis ought not to be extended D. 61. Thomson contra Stevenson eod die IN a Reduction of a Right and Disposition of certain Houses being pursued ex capite minoris aetatis It was alledged that the Disposition did bear 500 merks to be payed and the Defender was content to quite the right being payed of the Sum. It was
conclude the Owners that they should not be heard thereafter to prove that the Loadning belonged to them Some thought it hard that the Skippers fraud or mistake should prejudge the Owners But because in the case there was no ground to persume that the Skipper and Steersman did intend to prejudge or wrong the Owners and the Writs and Certificats produced were all after the Seizure and the Letters which were of anterior dates might have been made up and were all from Persons concerned and there were Documents found in the Ship that could clear that the Loadning did belong to the Owners The Lords Sustained the Sentence unless the Pursuer would qualifie Foroe and Violence and that the Depositions were Extorted Hay Clerk D. 121. Homes contra Paterson 17. Dec. 1667. IT was Found that the Attester of the sufficiencie of a Cautioner being pursued for the Debt the Cautioner being distrest and discust and not Solvent and the Attester having alledged that he offered to prove that the Cautioner was then the time he became Cautioner habitus reputatus Responsal idoneus as to the Debt The alledgance is relevant and the Attester no further lyable D. 122. Sir Thamas Nicolson contra the Laird of Philorth 18. Dec. 1667. PHilorth elder being pursued as representing his Grand-Father for payment of a Debt due upon Bond granted by the Earl Marischal and his Grand-Father as Cautioner It was Alledged that the Bond being Dated above fourty years ago was perscribed It was Replyed that interruption had been made by payment of the Annualrents by the principal Debitor It was Answered it was prescryved as to the Cautioner there being no interruption by any Document or pursuit against him or payment by him The Lords repelled the Defence in respect of the Reply and Found that the ground of prescription as to personal actions being odium and negligentia non petentis that it doth not militate in this case the Creditor haveing gotten Annualrent so that he cannot be said to be negligent Lockhart alter Cuninghame D. 123. Gilespie contra Auchinleck Eod. die MAry Williamson Lady Cumblidge having Right not only of Liferent but also to the Fee of the said Estate by Comprysing and being about to Marry with Patrick Gilespie her second Husband for settling and preventing Questions betwixt her Children and her Husband she did Dispone the Fee of the Lands to her eldest Son with the burden of 5000. Merks to be payed to her second Son at his age of Twentie one years and to Entertain him in the Interim And at the same time her eldest Son did grant and sett a Tack to the said Patrick for a year after his Mothers decease if he should survive her of her Liferent Lands reserved in the Disposition mentioning their purpose of Marriage And that he was to stock the saids Lands and that his Wife might die before him upon which considerations the said Tack is sett At the same time the said Mary did privatly dispone her Liferent in favours of her second Son John Auchinleck who intented a pursuit against her and her said Husband for the Maills and Duties of the Lands for diverse years It was Alledged that the said Right being a privat latent Right the Defender ought to be free of bygones as being bona fide Possessor by virtue of his Wife's Infeftment and his Jus mariti It was Answered That he and his Wife are Eadem persona and she being his author cannot pretend that they possessed bona fide in prejudice of a Right made by her self The Lords Found the alledgances relevant It was further alledged that the Disposition made to the Pursuer was most fraudfully granted in prejudice of the Defender after Treatie of the Marriage and the said publick Transactions in order thereto Which were Equivalent to and to in lieu of a Contract of Marriage the Wife having no other thing besides to dispose of besides her Liferent to which the Husband has Right Jure mariti so that a Contract was not necessary as to that And that the said Right was retained by the Mother and not delivered until she was Married at which time she could not prejudge her Husband and that the Defender had a Reduction depending upon the reasons foresaid The Lords Found the alledgance relevant And found that an Assignation not intimat and not being made for an onerous Cause could not prejudge the Husband having by his Marriage a publick Right Equivalent to an Assignation and therefore assoiled It was not considered whether the Right was delivered or not being found latent as said is D. 124. Wilson contra the Magistrates of Queensferry 2. January 1668. ARchibald Wilson being charged to accept the Office of a Baillie of the Town of Queensferry Suspended upon the Act of Parliament Jam. 3. Parl. 5. Chap. 29. whereby it is statute that Magistrates within Burghs should not be continued longer than a Year and subsumed that he had served the preceeding two Years This case being Reported The Lords Found the Reason Relevant And albeit the Act of Parliament be not in observance specially in Edinburgh The present Provost having been in that place diverse years yet the Ambition and unwarrantable practice of those who violate the said Act and others made to that purpose ought not to prejudge others who are most sober and claim the benefite of the same D. 125. contra 3. January 1668. A Wife provided to an Annualrent in Victual out of certain Lands by her Contract of Marriage did renounce the same and thereafter was Infeft in an Annualrent out of other Lands And upon the said last Infeftment a Process being intented for poinding of the Ground It was Alledged that the Seasin was null being alledged to be given by a Husband propriis manibus and the Assertion of a Notar without any precept or warrand in Writ It was Answered That the Marriage with the Relicts Renounciation of her former Right and her Contract of Marriage being all produced are sufficient Adminicles to sustain the same The Lords enclined to favour the Relict yet they found it of a dangerous consequence that a real Right should depend upon the Assertion of Notars and witnesses And the Question not being whether the Husband might or ought to have given his Wife the said Right in recompence of of her former But whether de facto he did the same Seing the foresaid Writes having no relation to the Seasin either as given or to be given could not be Adminicles to warrand or sustain the same And therefore before Answer it was thought fit to enquire if there had been any Decision in the like case as was informed D. 126. Sir John Home contra The Feuars of Coldinghame 7. January 1668. IN a Process at the instance of Sir John Home of Rentoun Justice Clerk contra The Feuars of Coldingham The Defenders offered to improve the Executions It was Answered They could not be heard unless they would propone the said Alledgance peremptorie but
there is not only an Assignation which is the deed of the Cedent but a delegation and the Debitor doth accept and consent and becomes Debitor as in this case as appears be the foresaid Letter written to the charger compensation is not receivable It was Replyed for the Suspender that the Letter is not positive that the Suspender should become Debitor but only in these terms if he must be Debitor to the charger and that upon the matter he is not Debitor to him in so far as he has a ground of compensation Whereunto It was Answered That these Words If he should be Debitor are to be understood only in Relation to the Complement and Assurance contained in Melgum's Letter viz. If he should not take course himself with the said Debt and that the Letter is positive that the Earl should pay the Annualrent and also the Principal Sum which he could not do presently and if the Earl had intended to compense he should have told the Charger that he had a Ground of Compensation in which the Charger would have had recourse against the Cedent and would not have relyed upon the Suspenders Letter The Lords Found the Letters orderly proceeded in respect of the said Answer and Letter D. 192. Gordon contra Pitsligo 12. Novemb. 1674. MR. Thomas Gordon and his Father pursued the Lord Pitsligo upon a Promise to enter them to certain Lands which they had acquired holden of him It was Alledged That if there was any such Promise it was to be performed in write by a Charter to be granted by the Defender and there is locus Poenitentiae until the Charter be subscribed It was Answered That the Promise was referred to the Defenders Oath and albeit there is locus poenitentiae in Synalagmis and Contracts yet where there is a positive Promise to give or do any thing the same being verified ought to be fulfilled and there is no locus poenitentiae upon pretence that it should be fulfilled in Write The Lords repelled the Alledgance in respect of the Answer foresaid Monro Clerk Newbyth Reporter D. 193. Paton contra Ardoch eod die WIlliam Paton Son to the deceast Dr. Paton pursued Stirling and Sir Harie Stirling of Ardoch as representing his Father for Implement of a Write granted by his Father on Death-bed whereby he was obliged to denude himself of the Lands of Panholls being satisfyed of such Sums of Money as should be found to be due to him by the said William and his Father after Compt and Reckoning It was Alledged for the Defender That his Father had acquired a Right to the said Lands from the said Dr. Paton being his Brother in Law having maryed the said Sir Henrie's Sister upon a Back-bond containing a Reversion in favours of the said William the said Sir Harie's Nevoy and that thereafter the said William being Major had discharged the Reversion so that the Defunct and now his Heir has an irredeemable Right to the said Lands and that the same pretended Deed on Death-bed could not take away the same It was Replyed That the Defunct on Death-bed did and might exoner his Conscience by a Declaration that the Discharge of the Reversion was on Trust And there were other Adminicles and Presumptions concurring to evince that it was a Trust viz. The near Relation of the Parties the Defunct being the Pursuers Uncle and that the Bonds granted by the Doctor either to the Defunct himself or to other Persons from whom Ardoch had Right were not retired which would have been if the Right in Ardoch's Person had not been on Trust It being against Reason that Ardoch should have both Right to the Lands and to the Debts for which the said Right was granted It was Duplyed That the Defender being an Infant neither doth nor is obliged to know what was betwixt his Father and the Pursuer unless there were a Write to clear the same and his irredeemable Right by the Discharge of the Reversion cannot be taken away by Presumptions and that a Write on Death-bed upon what pretence soever cannot prejudge the Heir And it cannot be thought but that if a Trust had been intended the Pursuer would have taken a Back-bond as he had done formerly and the Defenders Father might have given a Discharge of the said Bonds as to personal Execution The Lords Found That the Trust was not proven and that the Declaration on Death-bed could not prejudge the Heir Thereafter it was urged for the Pursuer That at least he should have Action against the Defenders as Executors for affecting the moveable Estate belonging to the Defunct and in Implement of the said Write at least in subsidium as to Damnage and Interest Upon a Debate amongst the Lords themselves It was urged That the said Writ being in effect a Reversion was only prestable by the Heir who only could denude himself of the Right of the said Lands And persons on Death-bed ipso momento that they become Sick they lose their legitima potestas either as to prejudging their Heirs or their Bairns and Relicts And they cannot dispose of their Deads Part but by a Nomination or Legacy and a Reversion could not be given by way of Legacy The Lords Found That the said Write could not affect the Executry Gibson Clerk D. 194. The Executors of the late Bishop of Edinburgh contra the present Bishop eod die THE Executors of the late Bishop of Edinburgh Pursued the Commissars and Procurator Fiscal and the now Bishop of Edinburgh for the Quots of Testaments that were either confirmed or had fallen by the decease of Defunct persons and were confirmable before the said late Bishops Death and fell under his Executry And also for the Quots of all Testaments confirmed or confirmable for the half year after the said Bishops decease and falling under the Ann. The Lords Found That the Quots of Testaments that were not confirmed did neither fall under the Bishops Executry nor the Ann But only the Quots of such Testaments as were confirmed either in the Bishops Lifetime or during the Ann Upon these Grounds which were debated at the Bar but more at length among the Lords themselves viz. 1. The Quots of Testaments do not belong to Bishops as having a share and interest in the Moveable Estates of Defunct Persons after their decease which are only divided betwixt their Executors and Bairns and Relict but the said Quots are in effect Sentence or Confirmation Silver which is given to the Bishops upon that account and consideration That by their Sentence or Confirmation which is instar Sententiae being actus voluntariae jurisdictionis The Defuncts Estate is secured to be forth-coming to all persons concerned both Creditors Relict Bairns and others And therefore until that be done there is no Quot nor confirmation-silver due 2. The Lords of Session had by Act of Parliament as a part of their Sallary Sentence-Silver viz. Twelve pennies of the pound until the same was taken from them by Act
exceeding 200. merks the Jaylor might enlarge Prisoners for debt without any other Warrand but the consent of the Parties at whose instance they were imprisoned which they did upon that consideration that Poor People if they should be forced to suspend and relax with a Warrand to put them out would be sometime put to more Charges than the Debt doth amount to Five of the Lords did dissent being of the Opinion That the Prison being His Majesties Prison no person could be put in upon Letters of Caption unless the same were under the Signet and no person put in by Warrand of the said Letters could be enlarged without Letters to that effect nam unumquodque dissolvitur eo modo quo contrahitur And the Prisoner being put in for his Rebellion could not be enlarged unless he were relaxed And if Parties did suffer themselves to be taken and incarcerat for small Sums it was their own fault and more unexcusable the less the Sum be and majus minus non variant speciem And it being acknowledged by the Law they being Prisoners for greater Sums they could not be enlarged without a Warrand to put them to liberty and the Law making no distinction of greater and less Sums the Lords had not a Legislative Power to alter or qualifie the same without an Act of Parliament D. 239. Burnet contra Lutgrue eod die A Commission being directed for taking the Oath of a Stranger residing in Holland the Report was questioned upon that pretence that the Strangers Deposition was not subscribed albeit the Commission did bear that he should subscribe the same and yet it was sustained because of the Custom of Holland that the Judges only subscribe and the same was subscribed by them And it was adminiculate with a Letter from him bearing that he had declared before the Commissioners and that he would adhere to what he had declared Gibson Clerk D. 240. Marion Binnie contra Gilbert Scot eod die THE deceast William Scot of Bonington having three Sons William the eldest and Robert and Gilbert The said William by his Contract of Marriage had the Lands and Estate of Bonington disponed to him by his Father Mr. James Scot but was not infeft therein and after his decease his Brother Robert having succeeded to him did renew a Bond granted by the said William in favours of Robert Riddel and having retired the said William's Bond did grant a new Bond for the Sum therein contained And the said Robert having also deceased before he was infeft in the Estate or served Heir to the said William and the said Gilbert the third Son having succeeded a Pursute was intented at the instance of the Relict and Executrix of the Creditor against the said Gilbert as representing the said William and Robert his Brothers at least to hear and see it found and declared that the said Bond granted by Robert was granted by him in contemplation and lieu of the said William's Debt and Bond and that it ought to affect any Estate that did belong to the said William and in special the benefite of the said Contract of Marriage and disposition therein made in favours of the said William It was Alledged for the Defender That he did not Represent Robert nor William upon any Passive Titles and tho he should represent William neither he nor the Estate would be Lyable to the said Debt In respect the samen was extinct and innovate by a new Bond granted by the said Robert whom neither he did nor would Represent And the said Bond being granted only by Robert could not affect any thing belonging to William and he was not concerned to debate upon what account the said Bond was given by Robert The Lords did encline to sustain the Declarator upon that head that the said Innovation was only to the effect the Creditor might be the better secured and satisfied the said Robert being Appearand Heir for the time and who if he had lived would have perfited his Right and obtained himself served Heir to William but being prevented by Death so that the said Bond was altogether ineffectual the Pursuer had condictionem causa data causa non secuta to be Reponed against the said Innovation and the Defender was in dolo pessimo to question the same seing nemo debet locupletari cum aliena jactura And he ought not to have William's Estate without payment of his Debt And some of the Lords did urge and instance the case aftermentioned viz. If the Younger of two Brothers the Elder having gone Abroad and thought to be dead should obtain himself served as Heir to his Father and the Creditors of the Father conceiving that he had Right should renew their Bonds and give back these that they had from the Father and thereafter the Elder Brother should return and should be served Heir to his Father whether in that case the Creditors might have Action against the Elder Brother and Estate notwithstanding of the said Innovation But because the case was New and not without Difficulty The Lords before Answer thought fit to try what way it could be made appear that the said Bond was in lieu of a Bond granted by William Newbyth Reporter Gibson Clerk D. 241. Broun contra Ogilvie eod die A Person being pursued for an Annuity of Money did claim the benefite of Retention conform to the late Act of Parliament But the Lords Found that albeit Retention was granted for relief of Debitors of their Taxation and that the Debitor was alike concerned as to the end foresaid whether he payed the Annualrent as the usura and profite of a principal Sum or as Annuity due upon a personal Bond yet the Act of Parliament mentioned only Annualrents And being as all Acts of Parliament stricti Juris specially such as are correctoriae Juris communis it could not be extended beyond the Letter of the Law Nevoy Reporter Gibson Clerk D. 242. Collonel Fulertoun contra The Laird of Boyne eod die THE deceast Laird of Towie having named his Relict now Lady Boyne Tutrix to his Daughter and in case of her Marriage Collonel Fulertoun The said Collonel pursued the Laird of Boyne for delivery of the said Pupil It was Alledged That her Mother and her Husband would entertain the Pupil gratis It was Answered That Boyne being her Step Father and having no other Relation but that of Vitricus which in Law is not favoured his offer to entertain is not Relevant against the Tutor who has the Trust both of the Pupils person and Estate And it is to be presumed that the offer of the Step-Father is upon a design upon the Pupill her Person and Fortune and that the case had been determined in terminis 4. July 1649. Langshaw contra Mure. The Lords Repelled the Defence and Ordained the Pupil to be delivered to the Tutor Strathurd Reporter Gibson Clerk D. 243. _____ contra _____ eod die THE Lords Found That a Warrand could not be given to cite at the Mercat
reason why the Defunct should have appointed the said Election to be in manner foresaid for the first time and not thereafter And if the Colledge had not the Right foresaid it should not belong to the Town but the Defuncts Heir who doth concur with the pursute Newbyth Reporter Robert Hamilton Clerk D. 270. contra 18. June 1675. IN an Adjudication the Appearand Heir being called and his Advocates having compeared and desired to see the Process It was Alledged That he had no Interest having renounced and that his compearing was only to retard the Pursuers Diligence that other Creditors might come in This point of form being reported viz. Whether his Procurators should see And if they should see whether in communi forma or not or in the Clerks hands Some of the Lords were of the Opinion That being a Person necessar to be called and being called his Procurators should see in communi forma the Law making no distinction and tho he had Renounced yet he had Interest to see and object whether the Pursuers Debt was the true Debt or satisfied and if it appeared that it was satisfied he may notwithstanding his Renounciation enter if he thought fit And the Renounciation may be questioned as false The Lords nevertheless Found That he should see only in the Clerks hands within 24. Hours tho it was urged that if the Party were in Town that course might be taken but the Party being at the distance of 100 Miles or any other considerable distance so that in so short a time the Procurator could not get Information it were better that in such cases the Processes should be seen in communi forma For if Parties had prejudice they would apply again by Bills which would occasion greater trouble and delay Redford Reporter D. 271. E. Weems contra Bruce 22. June 1675. A Bond being granted by the Earl of Weems to _____ Bruce and his Wife Gaw and the longest liver of them two and to the said Bruce his Heirs and the said Gaw the Relict having intented a pursute for payment of the Sum due thereby It was Alledged it was prescrived there being more than 40. Years Elapsed since the granting It was Answered That the time of the Husbands Lifetime the Bond did not prescrive against the Pursuer being cled with a Husband and so non valens agere The Lords upon the Report made by my Lord Newbyth Did ex tempore Find That it did not prescrive during the Husbands time Tho some of them were of the opinion that the case was of importance as to the Consequence and was to be further thought upon and debated in respect it cannot be said but there was a Person valens agere ever since the date of the Bond the Husband dureing all this time being valens agere and after his decease the Wife and the Husbands silence being the Fiar and the Person who had Right for the time being joined with the Relict her silence and both being joyned by the space of 40. years all the reasons of Prescription concurred in the Case viz. That Debitors should be secured after so long a time and that there is praesumptio Juris the Bonds may be made up and nothing thereon done till all the witnesses were dead And that maxim contra non valentem agere c. is to be understood in the case where there is not a person having Right valens agere by the space of 40 years or in the Case of temporary and momentary Prescriptions but not in Prescriptions longissimi temporis Otherways Prescription being the great Salvo and Security of People might be eluded and a person acquiring a Right of Lands possest by his Author peaceably for the space of 40. Years without any Interruption should not be secure seing it may be pretended That the Husband having been silent fourty Years without any Interruption his Wife who pretends Right to the Lands by Liferent or otherways non valebat agere during the Marriage D. 272. Bruce contra Bruce 23. June 1675. DOctor Arnot having disponed to one of his Nevoys an Annualrent out of certain Lands belonging to him and thereafter having disponed to another of his Nevoys the elder Brother of the Annualrenter the foresaid Lands A poinding of the Ground was intented at the Instance of the Person who had Right to the Annualrent And It was Alledged That the Disposition of the Annualrent was never delivered by the Doctor but was beside him the time of his decease and was viis modis gotten out of his Charter Chest and given to the Pursuer To which It was Answered That the Pursuer had the Paper in his Hands and it was presumed to be delivered And 2do Tho it should be supposed that the said Right was amongst the Doctors Papers the time of his decease yet the Doctor having made the said Right publick by an Infeftment and Seasin thereupon to the Pursuer which was Registrat albeit he might have evacuate the said Right by destroying the Disposition yet nevertheless having keeped the same by him undestroyed it ought to be construed in Law that being Uncle to the Pursuer and having given the said Right upon the account of the said Relation he kept the same by him to the Pursuers behoove unless it could be made appear that the Doctor did any Deed to recal and evacuat the said Right The Lords repelled the Defence of not delivery in respect of the Answer Hatton Reporter Mr. Thomas Hay Clerk D. 273. Dowglass of Kelhead contra Carlyle and others eod die KElhead pursued a Declarator of Non-entry pretending that he was Superior of the Lands libelled In which Process It was Alledged That he was not Superior of the said Lands In respect the Right libelled that he had from my Lord Queensberry was to be holden of the Disponer and Queensberry being Superior to the Defenders could not interpose another betwixt him and them And upon the proponing of the said Alledgance the Pursuer was forced to reply upon a Right to the Casualities granted by a Paper apart by my Lord Queensberry to the Pursuer and thereupon Process was sustained and decreet given for the retoured dutie before the intention of the Declarator and the full Avail and Rent of the Land after the intention of the Cause Of which Suspension being raised upon these Reasons 1mo That after Decreet of Declarator was recovered the Superior and his Donator has Right to the Lands during the Non-entry and may remove Tennents or uplift the Duties from them but before Declarator there could not be a Sentence for Poinding the Ground for the full avail 2do Tho the Ground could be poinded for the full Avail yet the Pursuer has no Right but to the Feu-duties even after the intention of the Cause before the Pursuer did Found upon and produce the Assignation foresaid as his Right to the Casualities seing there being a question whether my Lord Queensberry or the Pursuer had Right to the
well if not more to a Personal Faculty than to an Heretable Fee 2. The said Clause is conceived per verba maxime personalia viz. That the half of the Conquest should be disposed by her and if she should think fit which are verba arbitrii facultatis 3. In dubiis minimum is to be understood solitum ut evitetur absurdum And Respect is to be had to the quality of the Person And albeit mean Persons in their Contracts of Marriage do sometimes provide that the Longest liver may have all It is not usual nor can be instanced that ever in a Contract of Persons of quality a Fee was provided to a Wife It being the great design of the Marriage of such Persons to raise a Family to the Husband and it being very ordinary that a personal Faculty should be given to the Wife 4. If the Contract had been extended it might and ought to have been extended in these Terms That the Lady should Liferent the haill Conquest and in case of no Issue she should have the Personal Faculty foresaid And tho the Conquest had been provided to the Husband and her and the Longest liver of them two and the Heirs of the Marriage whilks faiÈieing the one half to his Heirs and the other to hers her Husband would have been Fiar and in the case foresaid her Heirs would have been Heirs of Provision to him as to the half of the Conquest Actores Sinclair Bernie c. alteri Lockheart c. D. 365. Doctor Wallace contra Symson June 1676. A Bill of Exchange being drawn by a Merchant in Edinburgh upon his Correspondent at London payable to a Merchant at Bristol the person to whom the said Bill was payable was not in England for the time but had gone to Ireland but his Freind having broken up the Letter direct to him and having Found enclosed the said Bill of Exchange did indorse the same to be payed to another person upon the place who did accordingly present the said Bill to the Merchant on whom it was drawn who did accept the same conditionally when it should be right indorsed And thereafter the person to whom the said Bill was payable having duely indorsed the same to be payed as the Indorsation did bear The Mercant upon whom the said Bill was drawn did in the interim break before the Bill swa Indorsed was presented to him There having interveened betwixt the date of the Bill which was 2 d. January and the Right Indorsement of the same which was about the end of April about 4. Moneths So that the Question was whether the Drawer of the said Bill should be Lyable to Refound the Sum thereincontained It was Alledged That he could not be Lyable In respect the said Bill was not returned to him protested either for not Acceptance or for not Payment And albeit in Law and by the custom of Merchants the Drawer be Lyable unless the Bill be payed yet that is ever understood with a Proviso that Diligence should be done and Protests should be taken unless the Person upon whom the Bill had been drawen had been evidently non solvent the time of drawing the said Bill which could not be Alledged in this case seing the Defender had drawen upon the same person after the said Bill to the value of 2000 lib. sterling which had been Answered And had likewayes Answered Bills of his of great value whereas if the Bill in Question had been returned Protested he would have retained the Provision he had in his Hand or done Diligence to recover the value of the said Bill or might have countermanded the said Bill and given an other Bill payable to a person that was upon the place The Lords notwithstanding Found That the Defender and Drawer of the said Bill should be Lyable But some of the Lords were of another Judgement And the Defender Repined and gave in a Bill desiring to be Heard D. 366. _____ contra _____ 4. July 676. IN a Suspension against an Assigney upon a Reason of Compensation viz. That the Suspender had Right to the equivalent Sum due by the Cedent by an Assignation prior to the Assignation granted by the Cedent to the Charger It was Answered That the Assignation granted to the Charger was intimate before the Intimation of the Assignation granted to the Suspender Whereunto It was Replyed That ipso momento that the Suspender got the Assignation foresaid being thereby Creditor to the Cedent he had a Ground of Compensation against the Cedent and consequently against the Charger as Assigney And an Assignation without Intimation is a sufficient Right and Ground of Compensation unless there were an other Assigney to the same Sum competing upon that Ground that he had a better Right by an Assignation intimate The Lords notwithstanding did not allow Compensation and Found the Letters orderly proceeded Newbyth Reporter Mr. Thomas Hay Clerk D. 367. Buchanan contra Logie eod die THE Lords Found That a person out of the Country being cited at the Mercat-Cross of Edinburgh and Pear and Shoar of Leith upon 60. Dayes warning to be holden as confest tho he was not cited personally and that the Decreet could not be questioned upon that Ground as Null But if he were Living and desired to be reponed to his Oath there might be Ground to Repone him Newbyth Reporter Mr. John Hay Clerk D. 368. Lesly contra Fletcher 5. July 1676. SIR John Fletcher being obliged by Contract of Marriage to provide Dam Marion Lesly his Wife of a second Marriage to the Liferent of a Sum of 10000 lib. did thereafter Infeft her in the Lands of Gilchristoun being of more value and of a greater Rent Whereupon she having obtained a Decreet against the Tennents The Lords Found her Right being granted stante Matrimonio and thereafter revocked Null In swa far as it exceeded the Provision in her Contract of Marriage And sustained her Decreet only effeirand thereto and ordained her to be Lyable for the superplus until the said Sum of 10000 lib. should be employed for her Liferent conform to her Contract of Marriage Forret Reporter Mr. Thomas Hay Clerk D. 369. Cheisly contra Edgar of Wadderly eod die EDgar of Wadderly being Charged upon an Indenture betwixt him and Samuel Chiesly Chirurgeon for payment of the Sum thereincontained for his Brothers Prentice-fee and Entertainment dureing his Prentice-ship And having Suspended the said Bond and intented a Reduction thereof upon Minority and Lesion The Lords Found That the Second Brother having no other Means nor Provision his Eldest Brother who was Heir to his Father and had the Estate ought to Entertain him and to put him to a Calling And did not sustain the Reason of Lesion Forret Reporter Gibson Clerk D. 370. Pitrichie contra Geight eod die SIR Richard Maitland of Pitrichie having obtained a Gift of Recognition of the Estate of Geight There was thereafter a Minute betwixt him and his Father and the Laird of Geight
and in case the Father in Law should have Heirs Male within the space of six Years after the Marriage The Lords Found The said Provision copulative and that the Tocher should not return albeit the Father in Law had Heirs Male within the foresaid time Seing the other Member of the said condition did not exist In respect albeit his Daughter deceased within the said time yet she had a Child of the Marriage that survived Gosford Reporter Mr. John Hay Clerk D. 424. Jaffray contra Laird of Wamfray 12. Jan. 1677. A Sum due be a Bond bearing an Obligement to Infeft and Requisition was Found to be Moveable after Requisition and to fall under Escheat notwithstanding the late Act of Parliament Ordaining Bonds bearing Annualrent to be Heretable but remains still Heretable quoad fiscum In respect Bonds of the nature foresaid became Moveable by Requisition even before the said Act of Parliament And the Fisk since by the foresaid Act of Parliament is not put in better case is not in worse Glendoich Reporter Mr. John Hay Clerk D. 425. Inter eosdem eod die IN the same case It was Found That an Instrument of Requisition was Null because it did not bear that the Procuratory was produced And an Instrument being produced extended under the Notars Hand and being quarrelled upon the Ground foresaid The Lords did not allow the Notar to give out an other Instrument bearing the Procuratory to be produced nor did admit probation by Witnesses that the Procuratory was produced Seing such Solemnities are not presumed and cannot be proven by Witnesses but by valide and formal Instruments And a Notar having given out an Instrument that is defective cannot thereafter give an other to supply the defect Otherways the question being betwixt the Creditors who had done lawful Diligence and a Donator it should be in the power of a Notar to prefer and gratify either party as he should be prevailed with either to give out or not to give another Instrument D. 426. Inglis contra Lawrie eod die SOme of the Lords were of the Opinion that a Husband may give validly during Marriage to his Wife a Provision or Jointure where there is no Contract of Marriage But that the Wife could not give to the Husband tho there were not a Contract of Marriage and that she might revock any such Donation which appears to be hard and unequal Actor Colt alteri Dalrymple Mr. Thomas Hay Clerk But this Point was not decided D. 427. Fordel contra Caribber 16. January 1677. IN a Reduction at the instance of the Laird of Fordel against Monteeth of Caribber of a Disposition granted by Monteeth of Randyfurd to Caribber upon that Reason That the said Disposition was not delivered but was lying by the Defunct in his Charter Chest and blank in the Name and Date and that the Defender intrometted with the same unwarrantably and filled up his Name The Lords Ordained certain Persons who were going to France to be examined before Debate reserving to themselves to consider what their Depositions should work Tho it may appear hard that a Write should be taken away by Witnesses yet the Reason being relevant and in Fact and resolving in dole and Fraud it may be proven by Witnesses Mr. John Hay Clerk D. 428. Stewart of Ardvorlich contra Riddoch eod die DAVID Riddoch by Contract of Marriage betwixt his Son Alexander and Jonet Ballentyne did dispone to the said Alexander his Estate and thereafter did dispone the same to his second Son David Riddoch for payment and with the burden of all his Debts who did thereafter dispone the same to Stewart of Ardvorlich for a just price The said Stewart of Ardvorlich pursued a Reduction of the Disposition contained in the said Alexander his Contract of Marriage upon that Reason That the said Contract of Marriage was not delivered to the said Alexander at the least there being but only one double subscribed the same was given back to David Riddoch the Father and was lying by him the time of his decease And it was evident that it was never intended that any other use should be made of the said Contract but only in order to get a Marriage to the said Alexander as being provided to the said Estate in swa far as the said Disposition in favours of the said Alexander was without the burden of the Disponers Debts which were very great and did not so much as reserve his Liferent Whereunto It was Answered That the Contract was a mutual Evident subscribed by both Parties and that Marriage had followed upon the same and therefore it could not be taken away upon the pretence of not delivery The Lords Found That tho the Contract had been beside the Father the time of his decease it was not to be considered as instrumentum penes debitorem being a mutual Evident But thereafter It was Replyed That the Pursuer offered to prove that not only the said Contract was lying by the Disponer the time of his decease but an Assignation blank of the said Contract which being in the Disponers Hands was in effect a retrocession or Discharge of the Disposition contained in the Contract Which Reply the Lords found Relevant In praesentia This Reply was Found also probable prout de jure D. 429. Cuningham contra Halyburton eod die THE Lords Found That a Tacksman of Lands within Burgh may be removed if he be behind in payment of his Duty unless he find Caution as to the future in the same manner as Tacksmen of Land in the Countrey Forret Reporter Gibson Clerk D. 430. _____ contra _____ eod die THE Lords Found That a Burgess of the Town tho he be not Incola if he trade may be stented for payment of his Majesties Taxation D. 431. Earl of Glencairn contra Brisbain eod die THE Lords Found In the Case abovementioned Glencairn contra Brisbaine That the true Value of the Lands should be proven to the effect it may be known whether the Price be adequate or not And albeit the Lands had not been laboured by Tennents being still in the Heretors hands the Value might and ought to be proven by the soweing and increase and the quantity of the Land and what Lands in that part of the like quantity and quality may be set for And it was not enough that now the Earl of Glencairn offered 2000 merks more in respect the Lands might have been improven or the said offer might be made upon Picque or Emulation Hatton Reporter Mr. Thomas Hay Clerk In this Case the Lords allowed a conjunct Probation D. 432. Caribber contra Fordel 17. January 1677. THIS Day again in the Case abovementioned Caribber contra Fordel The Lords did Find upon a Bill given in by Caribber That albeit Write cannot be taken away but by Write directly and that a Disposition could not be taken away but by a Renounciation or some other Writt where there is no question as to the Validity and Formality of the same
Bairns 18000 Merks after his Decease Quaeritur The Heir being served will there be a Confusion as to his Debt and Provision 2do If he may have Action against the Executors for it as Heir and Creditor 3tio If he succeed to his Father in Land-Estate though the Money was not employed will not the Obligement be satisfied pro tanto 4to Will the Bairns come in pari passu or must the Heir be satisfied in the first place out of the Moveable Estate Coals A Woman being Infeft in Lands in Liferent cum Carbonibus Carbonariis Quaeritur If she may win Coal where there was none before in order to Selling Ratio Dubitandi That usus fructus est jus utendi salva rei substantia and the Coal usu consumitur And being digged non renascitur It is thought therefore that where there was no Coal before The Liferenter cannot break Ground in order to Selling. Quaeritur If the Liferenters at least may Win Coal where there was no going Coal before in order to their own use and for their Fire Refounding any Damnage that may be by breaking of the Ground Cogitandum Where there is a Coal going Quaeritur If the Liferenter may continue to Work and Sell Answer It is thought for the Reason foresaid the Liferenter cannot Sell but may claim by the said Clause to have as much Coal as may serve for the Liferenters use only unless it be expresly provided that the Liferenter may Win and Sell as the Fiar might have done If the Liferent be not constitute so clearly in the Terms foresaid and it be only provided that the Liferenter shall Liferent the going Coal Quaeritur If the Liferenter may have the same benefite of the Coal as the Fiar might have had both for the Liferenters use and for Selling providing that the Liferenter use the same as bonus Vir and in the same manner as was in use formerly and do not any thing of purpose to the prejudice of the Fiar putting in too many Colliers or otherwise As there is quasi Vsus-fructus of Money if it ought to be so of Coal and what is Win should be valued and the price should be valued to the Liferenter in Liferent and in Fee to the Heretor To consider if this case has occurred elsewhere in the case of Sylvae caeduae Collation BY Contract of Marrriage the Husband is obliged to provide the Heirs of the Marriage therein specified But there is a Clause subjoined That if there be only Daughters and they be moe than one The Eldest only should succeed and the other Daughters should resign their parts in her favours reserving to the Father to provide them which he did not There being beside some Heretable Estate Quaeritur If the Eldest will not only have the Land but her share of the other Estate as Heir Portioner Ratio Dubitandi That Law and Nature favours and intends Equality betwixt Children Especially where the interest and preservation of Families is not to be considered and upon that account there is no Prerogative of Primogeniture and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is only competent Liberis Masculis Daughters being finis caput familiae And by the Contract the Eldest Daughter is not obliged to Marry one of the Name or who should take the Name 2do The Heir cannot be Executor unless he confer or upon the foresaid consideration and there appears to be Eadem Ratio in this case Whitelaw If an Heir to the Effect he may share in the Executry offering to confer the Moveable Heirship ought not also to confer Lands and other Heretable Estate For the Executory may be very considerable and it were hard that upon Collation of the Moveable Heirship possibly of small value he should both retain the Heretable Estate how great soever and share in the Executory though very great If there be Three Daughters and the Eldest at her Marriage get a part of the Lands Quaeritur If she will share as Heir Portioner with the other Sisters unless she confer as in England Commission not to Expire morte Mandatoris IF a Commission may be granted by a Person to Freinds for Selling Lands and to endure irrevocable not only during his own Lifetime but after his Decease to bind his Heirs untill it be Execute Ratio Dubitandi Mandatum expirat morte And on the other part there may be a necessity to Sell and his Heirs may be Minors Or upon some other considerations it may be fit that there should be such a Power given And as he may bind himself by granting such a Commission he may bind his Heirs being eaedem Personae Commissioners to the Parliament QVaeritur If there be any case wherein Commissioners to the Parliament ought to consult the Shires whom they Represent Answer It is thought that albeit by their Election they have Commission cum Libera potestate It is to be understood that they may superstruere But cannot evert or alter Fundamentals and the constitution of the Government either of Church or State And if any thing of that nature be intended it ought not to be done by Representatives unless they have special Authority to that purpose Commonties THe Servitude of Pasture being either in common Muires as Gladsmuire or such like Or in Commonties belonging to Heretors and Superiors and their Vassals by Rights from them Or in Lands belonging to others and not to their Superiors Quaeritur If an Infeftment cum communi Pastura will be a Ground of Prescription in all the foresaid cases unless it be special as to the Subject and the Lands to be Pastured upon Answer As to common Muires if the Lands adjoining be Disponed cum communi Pastura by the King it is to be presumed that before they be Disponed the Kings Tennents of the Lands Disponed were in use to Pasture in the said Muire And therefore the Clause cum communi Pastura is to be understood with the Pasture formerly belonging to the King And in that case possession though not for the space of Fourty Years by vertue of that Right is sufficient 2do There is the same reason as to Lands Disponed by Superiours having a Commonty within their own Property v. g. in Dirletoun unless there be some speciality v. g. as in David Forrest his Precept of Clare constat there is Nine Acres given without mention of Pasture in the Commonty of Dirletoun and there is a Tenement and three Acres and an half cum communi Pastura in Communia de Dirletoun So that the Right being granted unico contextu the Right of the said Acre cum communi Pastura Excludes the same as to the other Nine Acres 3tio As to a Commonty within the Property of other Superiours the Clause cum communi Pastura in the Tenendas will not be a ground of Prescription unless there be a Right or Constitution by the Heretor within whose Property the said Commonty is Common Appendant QVaritur There being a Servitude
consent of Persons is required ad integrandam Personam as in the case of Pupils and Minors it ought to be given before their decease in ipso acta But where the consent and confirmation of Persons is ad integrandum constituendum Jus which is constitute and perfected per gradus partes The consent and confirmation may be at any time re integrâ and where there is no medium impedimentum as Exempli Causà If there be a Compriseing against the Disponer the Disposition cannot be confirmed Item sometimes there must be Confirmation neither ad integrandam Personam nor Constitutionem Juris but for confirming the Right constitute as the Popes Confirmation in the Right of Church-Lands or the Patron 's Confirmation which are necessary in regard of their Interests Et ne quid Detrimenti Ecclesia capiat which may be at any time If a Right be confirmed after the Death of the Receiver of the Right and after the Disponers Heir is Infeft upon the Retour Quaeritur If the Heir of the Person who receives the Right may be served Heir to his Predecessor as having dyed last vest and seased notwithstanding that the Right was null the time of his decease and that there is medium impedimentum in the Retour by the Infeftment of the Disponers Heir Answer It is thought he may be served Heir and the said Infeftment is not an impediment the Heirs of the Disponer being eadem persona and in effect his Author And the said Infeftment is in effect to the use and behoof of the Receiver of the Right and his Heirs And the Heir of the Disponer is in no other case than the Disponer himself whose Infeftment is to the use of the Buyer until his Right be confirmed and then ceases If the King should confirm the Charter à me granted by Castlemaines to Cesnock Quaeritur If in that case the Vassals will be in any hazard Answer It is thought not seing it cannot be said that they were at any time Vassals to Cesnock And though fictione Juris the Confirmation be drawn back as if Cesnock had been infeft immediatly after his Right yet it cannot be drawn back where there is medium impedimentum the Vassals having acquired a Right before and having never been Cesnock's Vassals but only to Castlemains before the Forefeiture If an Heretor of Land dispone his Land to be holden of the Superior and the Superior confirm the Disposition with all that shall follow upon it But before Seasin be taken upon the Precept the Disponer dies Quaeritur What way the Purchaser shall be Infeft Answer The Disponers Heir is to be Infeft and to grant a Precept relating to the former Disposition and Confirmation Or if he will not or think not fit to be Heir the Lands may be adjudged from him as charged to enter Heir Quaeritur In the case foresaid if the Superior after he has confirmed the Disposition die before Seasin thereupon Whether a singular Successor in the Right of Superiority may question the said Infeftment Ratio Dubitandi That there is medium impedimentum viz. The Superior is changed and the former Vassal being his Vassal the time of his Right thereafter another Person cannot be his Vassal without his consent Et è contra the former Superior having done all that he could do to perfect the said Right and nothing resting to compleat it but the deed of the Disponer or his Heir by giving Infeftment the former Superior was denuded as to his Interest So that his Successor cannot question the said Right being perfected by the Infeftment If at least the Successor of the Superiority may be urged to renew the Confirmation Ratio Dubitandi The singular Successor in the Superiority may be urged to grant Infeftment upon Resignation in the hands of his Predecessor Cogitandum But it appears there is a difference seing by Resignation the Property is in the Superiors hands whereas by the Confirmation it is not and the Vassal is not denuded before Infeftment upon the Charter confirmed whereas he is denuded by Resignation and by Comprising which in Law is equivalent to a Resignation accepted seing the Superior cannot refuse to give Infeftment upon Compriseings If the Disponer be denuded of the Superiority what course is to be taken against his singular Successor for renewing the Procuratory Answer Seing in the case in question the Buyer was infeft according to the Tenor of the said Disposition It is to be considered if the King may notwithstanding confirm the said base Right Confiscation IF a Person being at the Horn dwell within a Regality and have Goods or Debts within another Regality Will these also belong to the Lord of Regality where he dwelleth upon that pretence that sequuntur personam Confusione tollitur obligatio BY Contract of Marriage the Husband is obliged to employ 30000 merks to himself and his Wife in Conjunctfie and the Heirs of the Marriage and has obliged also his Heirs and Executors to employ at his decease 15000 merks to his Bairns besides the Heir Quaeritur If the Heretable Estate be short of 30000 merks May the Heir pursue the Executor ad Supplementum Ratio Dubitandi he is served Heir and eadem Persona with the Defunct confusione tollitur obligatio It is thought he may and that Maxim militateth when the Heir succeedeth in universum Jus Patrimonium But in this case the Heir having right only to the immoveable Estate there is no confusion of that Obligement which is prestable out of the Executory to which the Heir has no right as in the case of moveable Debts due by the Defunct to his Heir either of Line or TailÈie there is is no confusion for the reason foresaid Item Quaeritur If there be not so much in the Executory as may satisfy the Provision foresaid in favours of the Bairns if they may have recourse against the Heir for their Provisions Ratio Dubitandi The Heir by the Contract was to be provided presently and the Bairns at or after the Father's decease and by and attour the Sum provided to the Heir so that the Heir should have his Provision as Praecipuum and before the Bairns Answer It is thought That the Heir being provided under the name of Heir which is Nomen Repraesentationis as he is lyable to other Creditors so he is lyable to the Bairns being provided under the notion of Bairns who do not represent If the said Provisions had been in a second Contract of Marriage the Son of the first Marriage being Heir of Line would be lyable to the Son of the second Marriage though served Heir and there would be no confusion for the Reason foresaid Conjunct-Fiar QVaeritur If a Lady Conjunct-Fiar or Liferenter of a Barony may receive Vassals singular Successors upon Resignation or Confirmation or give Novo damus Conquest A Father being obliged to provide to the Heirs of the first Marriage the Conquest and having acquired a Room during the first
not Diligence within three Years Persons convict of Capital Crimes A Person being convict of a Capital Crime and the Escheat of his Moveables therethrough falling to the King and he being keeped in prison many Years without a Remission and dying in that condition Quaeritur Whether the Rents of his Lands in the interim not uplifted will belong to the King and his Donator or to the Heir Ratio Dubitandi His Escheat is only of what he had the time of the Sentence after which he became civiliter mortuus and being nullus in Law he had nothing to loss And the King by his Indulgence could not prejudge his Heir unless he had granted him a Remission restoring him against the Sentence Quaeritur quid Juris If after he is convict he should commit Treason whether he might be Forefaulted in prejudice of his Heir Curator A Female Minor being Married Quaeritur If the Office of her Curatory doth expire Curatores ad Lites JVre Saxonico Faeminae sunt in perpetua Tutela sed isti Curatores non habent Administrationem ideo Rationes non tenentur reddere adhibentur enim tantum pro consilio assistentia ad integrandam personam maxime in Judicialibus Ex consilio suo quod fideliter impertiuntur etiamsi non responderit eventus conveniri nequeunt quia nemo ex consilio obligatur An idem dicendum in Curatoribus ad Lites Thes Bes in litera K. 47. verbo Kriegerischer per. totam pag. 474. sequent D. Damnum cum quis utitur Jure suo DAmnum est conjunctum cum injuria Et non dicitur Damnum quod Evenit cum quis jure suo utitur Si vero quis ita utatur Jure suo ut vicino potius noceat quam sibi prosit illicitum est prohiberi potest Quia magis Jure suo abuti quam uti videtur Si in meo aliquid faciam ad aemulationem injuriam alterius hoc est non in meam utilitatem sed animo nocendi alteri de Dolo Teneor Secus si injuriâ faciam non animo nocendi vicino sed ut mihi prosit Si enim in meo praedio puteum aperiam quo aperto venae putei vel fontis vicini mei praecidantur non teneor ex hujusmodi facto etiamsi promisissem de Damno infecto quia jure meo licite feci Textus sunt expressi Leg. 1. § 12. Leg. 21. ff de aqua pluvia arcenda Jus Fluviat p. 67. n. 13. Death-Bed IF a Creditor may on Death-Bed make an Heretable Sum Moveable by a Charge of Horning A Person holding Lands Ward when he was on Death-Bed did resign his Estate in favours of his eldest Son with the Burden of Provisions in favours of his other Children which course was taken of purpose to prevent the falling of the Ward and Marriage his Son being then Minor Quaeritur If his Son may question these Provisions as being in Lecto upon pretence that though on Death-Bed he might Dispone in favours of his Heir yet he could not prejudge him Answer It is thought that the said Right being made suo modo and he having accepted the same and bruiked by vertue thereof after Majority he cannot question the said Modus and Qualification A Person having provided his Estate both Heretable and Moveable to his Relict in Liferent and to his Daughter in Fee and FailÈieing of her by Decease to be divided betwixt his Relict and his Brother being his next Heir after his Daughter and her Heirs And the Brother having accepted of a share of the Moveable Estate after the Decease of the Daughter Quaeritur If he might question the said Right as to the Heretable Estate as being made on Death-Bed Ratio Dubitandi Vtile per inutile non vitiatur and the Defunct might on Death-Bed dispose on his Moveables And the accepting of the Right as to these does not hinder the Heir to question the same as to the Heretage Whereof he had no power then to dispose A Husband having Disponed Lands by way of Gift to his Wife and having thereafter revocked the said Gift tacite by a Disposition made on Death-Bed in favours of another person Quaeritur If the Heir may question the said Disposition upon Death-Bed Ratio Dubitandi The Heir is not prejudged in respect the Lands would not have belonged to him but to the Wife And the Revocation is qualified and only in favours of the Person to whom it is made on Death-Bed and to no other effect Debitor and Creditor IF for a Sum of Money Land be Wodsett so that the granter of the Wadset is not Debitor There being no Clause of Requisition or Obligement for repayment Quaeritur If there be only a Reversion Whether will the granter of the Wadset have the benefite of the Act Debitor and Creditor so that the haver of the Wadset may be restricted to the Annualrent of the Sum contained in the Reversion Grubet contra Moir After a Comprising was deduced an Infeftment of Annualrent was granted by the Debitor And thereafter another Compriser having comprised who pretended that his Compriseing should be drawn back to the first being within Year and Day and therefore should be preferred to the Right of Annualrent And that the Debitor being denuded by the first Compriseing had only a Reversion and that an Infeftment of Annualrent is not habilis modus to give a right of Reversion and that it was not nor could be cled with Possession The second Compriseing being before the term of payment The Lords brought in the Annualrenter with all the Comprisers as if he had comprised the same day he was infeft Colstoun contra Nicolas a Creditor of Dunglass Gibson Clerk Colstoun's Bond was 16 February 1669 Seasin 24 May 1669 Nicolas Compriseing 1669. If the first Compriseing and Infeftment should be considered as being to the behoof not only of the Adjudger Infeft but of the others by the Act of Parliament in the same manner as if the Infeftment had been so granted expresly by the Superior Quaeritur Quid Juris Ratio Dubitandi That even in that case the Adjudger Infeft is only Vassal so that by him only the Superior has his Casualities Bancrief Nomina Debitorum IF Nomina which are not Res But Entia Rationis have Situm when the Debitor is in Scotland animo remanendi and the Debt is contracted with him as resideing there Ratio Dubitandi They are thought and called a Personal Interest and therefore should sequi Personam Contrà They are Res in Obligatione potentia 2. If the Creditor be forefaulted in France being a French-man they do not forefault to that King Quia subditus amittit only quae sunt civitatis 3. They are lyable in Scotland to extraordinary Taxations 4. The Debitor is quasi servus servi habent situm To consider Quid Juris elsewhere as to Banks montes Pietatis Strangers Debts IF a Stranger contract with a Scots-man abroad that he should pay
Extinct and consolidate with the Right of property And the Right upon Recognition does not belong to the Superior ipso jure before Declarator Mcghie of Larg Duels and Hame-sucken IF Hame-sucken or Fighting Duels be Capital though no person be killed Qui in Duello occubuerunt in Locis religiosis sepeliri non possunt Perez Lib. 2. Tit. 1. E. Emancipatio IF by our Law Children after twenty five years may Emancipate themselves and live by themselves and leave their Father and his Family Cogitandum And the custom of other Nations is to be considered Whether if they go out of the Family without the Fathers consent they may claim a Bairns part Contractus Emptionis a Pretio incipiens aut Mensura CVm emitur fundus tot jugerum an si plura reperiantur jugera Emptori cedant an venditori Respondetur Cúm pretium formatur a Mensura ab ea Contractus incipit in singula jugera certum pretium promittitur quod superest ad venditorem redit quod deest ab eo suppletur Sin Contractus incipit a specie licet demonstrative aliqua mentio de modo agri fiat ut si vendo fundum centum jugera continentem si plura reperiantur cedunt Emptori nec ad augendum pretium tenetur falsa enim fuit Demonstratio quae non nocet Thes Bes in litera K. 9. verbo Kauffen p. 453. What way the Buyer may be urged to Enter IF the Buyer lye out what will be the remedy for the Superior Answer He may pursue to hear and see him decerned to Enter and to pay Composition And without prejudice of that Decerniture if he continue to ly out To hear and see it found that the Lands are in Non-entry And that the Superior as to Casualities shall be in the same case as if he were Entered Entry of Assigneys upon Resignation IF the Alienation and Resignation be Assigned Quaeritur If the Superior may be compelled to enter the Assigney seing both are in favours of Heirs and Assigneys Answer Negativé Unless a Composition be payed both for the Buyer and for the Assigney Seing the Superior is not obliged to Enter any but the Buyer and his Heirs And though the Right be to Assigneys it is to be understood such as the Superior should be satisfied with And the Superior is not to be in a worse case than if the Buyer had been Infeft and had Disponed And there is in this case Fictio brevis manus Entry upon Resignation by a singular successor WHat way a singular Successor in the Right of Superiority may be urged to Infeft upon Resignation in his Authors time Seing he does not represent him as Heir And is not bound to the Buyer by Contract or quasi Answer There is obligatio in rem as in the case of Servitudes and Annualrents And he may be pursued summarly to hear and see him decerned to Enter the Buyer And to that purpose to give him a Charter of the Tenor Exhibited And upon a Bill the Director to the Chancery may be ordered to give out a Precept in subsidium Liferent Escheat A Vassal having granted a subaltern Right being Year and Day at the Horn Forfaulteth only his own Right of Liferent without prejudice to the Sub-vassal Whereupon it may be Quaeried If a Vassal has Disponed his Right but so that the Party Acquirer is not Infeft will notwithstanding the Disponers Liferent fall Answer Affirmativé And the Ratio Dubitandi is of no weight Viz. 1. A Tacksman though the duty be not proportionable will not be prejudged 2. If the Receiver of the Disposition be Rebel per annum and the Lands hold of the King The King will get eodem tempore Two Liferents of the same Lands Viz. One by the Rebellion of the Disponer and the other by the Rebellion of the Receiver For as to the first a Tacksman has a Real Right and Interest which militates against a singular Successor And as to the second there is no Inconvenient that the Superior should have the Liferent of his Vassal And if the King be Superior that he should also as King have the Liferent of his Subject And any benefite may accrue to him by the Disposition and Warrandice thereof during his Lifetime If a Person Infeft in Liferent be denuded by an Assignation of the Liferent which is only habilis modus in respect Liferents constitute by Infeftment are personal and cannot be transmitted by Resignation Quaeritur If the Liferenter be Year and Day Rebel after the Assignation will the Superior have Right to the Duties A Lady Tercer or Tennent by Courtesy their Lands holding of another Superior than the King and they not being Vassals to him Whether will their Liferent fall to the King being year and day at the Horn A Person being denounced in April and continuing year and day at the Horn Quaeritur quando dies cedit of the Liferent falling to the Superior of the Lands set to Tennents And whether or not the Superior will be in the case of a Liferenter surviving the Fiar So that he will have right in the case foresaid to the full Duty of that year that the Liferent falls per lapsum anni diei Quid Juris Where the Rebel laboureth himself will he not be lyable to the Superior for the Duty of that Year as if he were a Tennent If these Obligements that are ordinary in Dispositions to be holden of the Granter and Superior That while the Buyer holds of the Granter his Heirs and Successors shall be entered gratis and shall not be lyable to Non-entry nor Liferent Escheat which are gifted to them now as then Will bind singular Successors And what way they may be made real if there be any Question Answer It is thought that they may be inserted both in the Charter and Sasine It may be contended that these being upon the matter Servitudes upon the Superiority may be constitute as other Servitudes without Write specially seing it is intended they should hold either of the ways and that the Right in the Person of the Disponer to be holden of the Superior is in effect to the Buyers behoof until they be confirmed And Reversions were Real even before the Act of Parliament anent the Registration of the same Cogitandum If at least Comprisers will be lyable to such Obligements Seing they comprise only such a Right as their Debitor had and they are in use to comprise all Contracts and Dispositions and therefore ought to be lyable in rem to all Obligements upon the Debitor and his Successors relating to the Lands comprised To consider If there be not a Difference betwixt Obligements as to Liferent Escheat and others these as to Liferent Escheat being contrary to Law and such as give occasionem peccandi and if such an Obligement be not sustained to whom will the Liferent belong Whether to the mediate Superior seing the immediate has renounced or to the King as ablatus ab
Scylla non minus exitiosa Quaest 15. SUperius Respondimus Titium ejusque haeredes Sempronio in Chirographo substitutos ei haeredes esse provisionis Quaerendum an Sempronii Creditoribus teneantur quidem dicendum est eos teneri obnoxios esse nam omnis haereditas etiam particularis in Chirographo praedio aut alia re particulari eatenus est successio in universum Jus secundum haereditatis definitionem ut nedum commoda sed incommoda onera ad eum pertineant redundent sed quatenus debitis subjaceat oneribus quaestio difficilior nec levis momenti est alio forte loco ubi de haeredibus Talliae provisionis aliis particularibus haeredibus agetur magis opportune ventilabitur Feus IF a Feuer may Refute as in the case of other holdings The difference being that Feuda are Beneficia invito Beneficium nec datur nec retinetur Whereas Feus are Emphyteuses and upon the matter perpetual Locations and as in Locationibus either ad tempus how long so ever the Conductor cannot renounce so their appears to be eadem Ratio in Feus Whether there be Non-entry in Feus and the Liferent Escheat of the Feuer doth belong to the Superior seing they are not proprie Feuda And yet it is thought sapiunt naturam Feudi If there be Non-entry Whether before Declarator the Superior will have right to the retoured Duty which is the Feu-duty besides the Feu-duty due to himself And after Declarator to the full profits Feuda Nobilia FEuda nobilia sine Nobilitate dari possunt Adeo ut aliquis ab Imperatore investiri posset in Ducatu aut Comitatu nec tamen Dux aut Comes sit Thes Besold in litera I. 18. verbo Innhabern des p. 428. Fiar 1. WHen Lands are Disponed to a person without mention either of Heirs or that he is Fiar or Liferenter or that they are Disponed Heretably Quaeritur If he be Fiar 2. In Conjunct Fee where there are no degrees of Substitution whether is the Husband or Wife Fiar 3. When Lands are given in Conjunct-Fee to the Husband and Wife and their Heirs who is Fiar 4. If the Husband be Fiar whether at least the Heirs betwixt him and her are to be understood his Heirs or his Heirs whatsoever 5. If Lands be Disponed to two Brothers by their Father and their Heirs if they be both Fiars ex semisse 6. If when Lands are Disponed by a Father to two Brothers and the Heirs of their Body if one die without Heirs of his Body whether it be substitutio reciproca 7. When Lands are Disponed to Husband and Wife and their Heirs of the Marriage and these failÈieing the half to the Husbands Heirs and the other half to the Wifes Quaeritur Whether the Husband be so Fiar that the Wifes Heirs failÈieing Heirs of the Marriage will be Heirs of Provision as to the half 8. When it is intended that the Wife should be a Joynt-fiar If the Right should not be to the Husband and her and after their Decease the half to his Heirs and the other half to her Heirs 9. When a right is given to Two Persons and to the longest Liver of them Two and the Heirs of the longest Liver who is Fiar And if the Fee be in pendenti 10. When the Fee is provided by Contract of Marriage to Bairns and accordingly a Right is granted in the foresaid terms there being no Bairns for the time Quaeritur When a Child is born whether the Fee be immediatly in its person 11. If it be in solidum in its person and thereafter others be born Quaeritur Quid juris and if concursu faciunt partes 12. In Conjunct-fees where there is no substitution the Heirs determine the Fee 13. Where there are degrees of substitution The person whose Heirs succeed first is Fiar And all the Substitutes thereafter are Heirs of Provision to the Fiar by progress 14. When a Band is taken to a person and his Heirs if his Grandchild by a Daughter decease having no issue whether the Child being Heir his Father will succeed to him albeit his Father cannot be Heir to the Grand-father and haeres haeredis should be haeres instituentis Fiars of Bonds A Bond being in these terms To a man and his Wife and the Heirs of the Marriage which failÈieing to the longest Liver of them two and the Heirs of the surviver Quaeritur who is the Fiar A Bond being granted to a Husband and his Wife and the longest liver of them two in Conjunctfee and to one of their Sones expresly named and the Heirs of his Body whilks failÈieing to the Heirs to be procreat betwixt the Husband and the Wife whilk failÈieing to the Wifes Heirs and Assigneys Quaeritur Whether the Fee of the said Sum pertaineth to the Husband or to the foresaid Son or to the Wife Ratio Dubitandi That the Right of Succession terminates upon the Wife and her Heirs which seems to import that she is Fiar 2do As to the Son the said Sum being provided to his Heirs in the first place It seemeth that the Fee should pertain to him Seing the Heirs of his Body are to succeed in the first place and the Fee of Money as it is said of the Vsufructus of Money That it is quasi Vsufructus is quasi feodum Proprietas and properly that is said to be Property which belongeth to a person and descendeth to his Heirs And yet it is thought that the Fee of the said Sum doth belong to the Husband in respect the Money being his own was lent by him in behalf of himself and the foresaid persons and albeit when a Bond is conceived simply to a Husband and his Wife in Conjunctfee and to her Heirs and assigneys she is Fiar for the reason foresaid that it is to belong to her and her Heirs only Nevertheless when there is diverse degrees of Substitution of Heirs of diverse persones and of a Wife in the last place the person whose Heirs are provided for in the first place ought to be understood to be Fiar and these in secundis tabulis and in a more remote degree to be only Heirs of Provision FailÈieing the former and if the Son had survived or his Heirs It is absurd that they should be Heirs to their Mother and not to their Father And that the Mother being Fiar should have power to Dispone of the Sum in prejudice of her Husbands Children And albeit the said Sons Heirs be first named yet it is thought that he is not Fiar seing he is to be Heir of Provision to his Father as if an Infeftment were granted to his Father and Wife in Conjunct-fee and failÈieing of them be decease to a certain person their Son and the Heirs of his Body The Son in that case would be Heir of Provision A Bond being granted to a Man and his Wife and longest Liver of them Two and their Heirs And the Wife
Titio nec imputandum nec officit Patrimoniorum siquidem conditio Jura viduae liberorum legibus constituuntur nec aequum est ea ex arbitrio haeredis pendere aut ambulare Porro haereditatis delatio Facultas adeundi aliis casibus nedum hoc haud parum operatur haerede enim perduelli Majestatis reo haereditas etiam non adita amittitur Fisco quaeritur Legitimation per subsequens Matrimonium A Person after his first Marriage of which he had Children having Married again and having diverse Children by the Woman Married to him in that second Marriage elder nor the first Children which are thereby legitimate Quaeritur Whether the Eldest Son with the second Wife will be preferred to the Son of the first Marriage as to the Right of Succession Ratio Dubitandi The first Marriage was Contracted Spe and in contemplation that the Children of that Marriage would succeed and the Eldest Son by his Birth had Jus primogeniturae as the first Lawful Son which could not thereafter be taken from him e contra the Son of the second Marrriage the time of the Fathers Death which is to be considered as to the question of the Succession is his Eldest Lawful Son Cogitandum If a Person may Marry on Death-bed in order to the Legitimation of Natural Children in prejudice of his Agnats who would otherwayes succeed Marriage and Legitimation THere being a Declarator intented to hear and see it found that the Children were Lawful in respect there was a promise and Copula Quaeritur If the pursuit being after the Fathers Decease in order to the Succession to the Good-sire the promise may be proven prout de Jure as it might have been before My Lord Neutoun told me that after the Fathers decease it is found not probable by Witnesses Laird of Lauder Lenteratio LEuteratio vide Appellatio in Litera A. Libellarius Contractus LIbellus sive Libellaria est contractus quo interveniente scripturâ res immobilis venditur certo pretio certa insuper pensione in singulos annos ea lege plerumque addita ut stato condicto tempore renovetur denuo numerato pretio certo vel arbitrario Hering de molendin q. 29. n. 4. Est Italis usurpatus dicitur a scriptura Libello seu brevi charta Ibidem n. 6. Liberi INdefinito Liberorum nomine censetur actum de natis tempore Contractus non de nascituris Hering de molendin quaest 20. n. 19. Liferenter IF a Liferenter of Lands Stock and Teind having Set the Lands to Tennants for a Duty for the Stock and drawing the Teind and having deceased before Martinmass after drawing the Teind Quaeritur will she be Lyable to the Heir for the half of the Teind Ratio Dubitandi For the Heir That she dying before Martinmass he ought to have the half of that Years Duty And for the Liferenter that she had Right to the Teind after it was separate and collected so that she might have disposed of it and having gotten it it cannot be taken from her and that the Legal terms are to be considered in the case of Debt when dies cedit but in this case nihil debetur but she has Right to the Fruites Teinds and Quota of them in the same manner as the Tennant and as if she had laboured Vide Third and Teind Letter T. Vide Titular litera T. q. 2. vide Milns Litera M. Where Grass Roums are set for payment of a Silver Duty by the Tennent entering at Whitsunday the half at Martinmass and the other half at Whitesunday thereafter Quaeritur If the Liferenter decease after Martinmass whether the Martinmass Duty will belong to her Executor Ratio Dubitandi That the Duty payable by the Tennant entering as said is and going away at the next Whitesunday is payable in respect of the Cropt and proventus of the next Year either of Corns or foetura animalium and it is without question that a Tennant paying a Silver Duty for a Corn-Roum albeit he pay at Martinmass after his entry yet it is payed for the next years Cropt so that the Liferenter can pretend to no part thereof deceasing the time foresaid and on the other part it appears that there may be a difference as to Grass Roums seing the half of the Duty seems to be payed for the profite of the Grass from Whitesunday to Martinmass which falls within the Liferenters Right Quaeritur Quid Juris As to Salt-pans and Milns if the Liferenter have the same in her own hand whether her Right is presently determined by her Death The same being set to Tennants from Candlesmass to Candlesmass If the Liferenter deceased after Lambmass and Martinmass will her Executors have any part of the Duty after Lambmass When Rentals are set in these terms That beside the Rental Duty there should be every five Years a considerable Sum payed as in Contractu Libellario Quaeritur If the Liferenter will have Right to that Sum if it fall to be payed during the Liferent When the whole Estate of a Nobleman is Disponed reserving his Liferent or of a Baron will the Liferenter have Vote in Parliament and Voice in the Election of Commissioners for Shires A Lady being Infeft upon her Contract of Marriage in Lands for her Liferent Quaeritur If Tacks set thereafter by her Husband will bind her Vide Terce quaest ultima Executors of a Liferenter IF a Woman deceaseth after Whitesunday before her Husband will her Executors have Right to a part of the years Farms Liferents DIes as to Liferents when the question is betwixt the Executor of the Fiar and Liferenter cedit at Whitesunday and Martinmass as the Legal Terms Quaeritur If a Bond be to a Man and his Wife the longest liver payable at Lambmass and Candlemass and the Husband deceasing after Candlemass will the Husbands Relict have Right to a half year at Whitesunday If a Father be Infeft in Liferent in Lands and be content to renounce his Liferent in favours of his Son Quaeritur If it be habilis modus to extinguish his Liferent Ratio Dubitandi He is the Superiors Vassal during his Life and cannot cease to be Vassal without the Superiors consent at least sine refutatione When a Vassal is Year and Day at the Horn if he has granted a Right to be holden of himself what will be the Import of his Liferent If a Liferenter do Dispone his Liferent of Lands or if the same be Comprysed from him and thereafter he be Year and Day at the Horn Quaeritur If the Superior will have Right to the Liferent as if the said Right had not been granted Answer It is thought he can have no other Right than such as the Liferenter had and affected with the said Right If the Liferenter be Forefaulted will not the King have the Right of the said Liferent without the burden of the said Rights And if it be so Quae Ratio
the Forefaulture and Commission and Disposition made by vertue thereof and ratifying the same and conform thereto giving and Disponing the Lands therein-contained Ripae Ripatica USus Riparum est publicus cuilibet licet naves ad eas appellere Ripae enim hanc servitutem debent flumini cujus usus sine usu riparum nullus est servitus ista a natura imposita videtur ut usu fluminis concesso ea concessa intelligantur sine quibus eo uti non possumus Jus Fluviaticum p. 28. n. 362. Ripatica penduntur pro trajectione quae navi fit ab una Ripa in aliam sunt omnia Emolumenta reditus quae Princeps capit in Ripis fluminum vectigalia scilicet potestas cogendi ad muniendas Ripas Idem p. 30. n. 375. Quando Dies cedit in Grass Roums when there is Question betwixt Fiars and Liferenters IT being the Custom of the Country in some places That Lands consisting of Grass-Roums are Yearly set from Whitesunday to Whitesunday thereafter for payment of a Silver Duty at Martinmass after they are set Quaeritur Therefore If the Fiar survive the Whitesunday but dieth before the Martinmass if he will have any part of the Martinmass Duty Or if it will belong entirely to the Relict Liferenter or next Fiar Answer It is thought That he nor his Executors would have no part of that Duty being payed for the said Year betwixt Whitesunday and the next ensueing Whitesunday Seing he deceased as said is before Dies either cessit or venit Monmouth In some places Grass-Roums are set from Whitesunday to Whitesunday but the Term of Payment is Candlemass and Lambmass Quaeritur If the Fiar decease after Martinmass after it is set but before the first Term of Payment if he will have any part of that Years Duty Answer It is thought he will have the half and what ever be the Term of Payment Dies cedit at Martinmass for the half Year preceeding Seing for the Duty of Corn-lands though payable betwixt Yule and Candlemass yet Dies cedit at Whitesunday and Martinmass as in the Question foresaid Quaeritur What is the reason of so great difference betwixt these and Grass-Roums Answer That the Duty being payed for the Cropt the Terms of Whitesunday and Martinmass are respected so that the Fiar surviving Whitesunday his Executors have Right to the half of the Year upon that consideration as appears because the Lands are then fully laboured and Sowen and whoever survives Martinmass has Right to that Terms Duty because the Cropt is then fully collected But as to Grass-Roums set as said is at Whitesunday to Whitesunday thereafter the Grass only is to be considered which upon the matter is the Cropt of these Roums and the reason why the Duty of the whole Year is payed at Martinmass appears to be that before Martinmass the Grass-profites are collected by selling of their Wool and Beasts at or before that time Quaeritur If the Fiar decease after Martinmass and has not uplifted the Duty will the same divide betwixt him and the Liferenter And if he has uplifted the same if his Executors would be Lyable to refound the half to the Liferenter Answer Cogitandum For if it be not uplifted it appears reasonable that the Liferenter should have the half and if it be uplifted it appears hard that the Fiar having uplifted the same Jure suo bona fide should be Lyable to render any part of the same specially seing the Liferenter may have the same advantage if she should decease after Martinmass If Corn Roums should be set in the same Terms That the Duty should be payed at Martinmass after they are set Quid Juris Seing the said payment will be before the next Cropt and the Fiar may die before both the Terms of the next Year for which the Duty is due Answer It is thought that the Fiar cannot set the said Lands in manner foresaid in prejudice of the Liferenter And if the Tennent take the same that way it is upon his own hazard And the Liferenter would force him to pay the Duty after the ordinary Terms of the Country Quaeritur If a Tennent have a Liferent-Tack and he Die after Whitesunday If the Tack will not continue for that Year Seing the time of Removing of Goods necessary for labouring is past before his decease and Roums being set from Whitesunday to Whitesunday annus coeptus as to Labouring habetur pro completo Vide Annuum Legatum Quaeritur If there be not the same reason as to Liferenters in Labouring or possessing the Land with their own Goods seing their Executors cannot remove the Goods after that time and the Year of the Liferent is begun S. Act Salvo QVaeritur If Ratifications in Parliament with the Clause That they should not be Lyable to the general Salvo Will prejudge a third Petson having undoubted Right and having been secured by a general Law viz. The Act Salvo Jure The Ratification being only a private Act and the persons concerned not being called Seasin A Posterior Seasin but first Registrate whether will it be preferred to the prior Seasin Registrate thereafter though debito tempore Registration of Seasins IF a Seasin of Reversion granted by a Bishop will militate against the Successor albeit it be not Registrate in the Register of Seasins Ratio Dubitandi The Bishop doth not succeed as Heir And yet he cannot be said to be a singular successor and Bishops they are Corpora singula Special Services and Precepts of Clare constat A Person being served Heir-male or Provision in special in certain Lands and deceasing before he be Infeft Quaeritur If his general Heirs will be lyable to the Debt of that person to whom he was served Special Heir The same Question may be moved upon a Precept of Clare constat whereupon Infeftment has not followed seing in neither of the said cases there is Aditio Haereditatis before Infeftment whereas in general Services there is Aditio as to any Estate whereupon there is no Infeftment Servitude and Extinguishment thereof IF a Person who has Right to a Servitude out of other Lands should acquire also Praedium Serviens Quaeritur If eo ipso that he has Right both to Praedium Dominans Serviens the Servitude doth extinguish Quia res sua nemini servit and if he should thereafter Dispone Praedium Serviens whether the said Servitude not being reserved either he or his singular successor in the Right of the other Lands can claim the same Or if he should Dispone praedium Dominans without mention of the Servitude but with all Liberties and pertinents whether will that Servitude revive as being only Sopita for the time while both Lands belonged to one person but not extinct by any Discharge or deed freeing the Lands of the same If a person has constitute by Writ a Servitude and thereafter Dispone his Lands without excepting of the same Quaeritur If
Jus indivisibile possessio partis maketh it publick in Totum And it cannot be ex parte publick and ex parte non A Tack being set to a Tacks-woman during life and after to her Heirs until payment of certain Sums for Ten shillings yearly Quaeritur Will the Tack be void as without Ish Answer It appears that the Tack being set for security of Payment of the Money the Ish is not altogether uncertain Certum est enim quod fieri potest câ—rtum per relationem ad aliud and the Rent being One Thousand Pounds it may be considered in what time that Rent may satisfy the Sum mentioned in the Tack and upon the matter there is a Reversion to the setter and his Successors and they may determine the Ish of the Tack by payment of the Debt Lady Braid and her Son assigned the Tack whereof a Reduction was raised by Gorgymiln having bought the Lands Neither Servitudes nor Tacks do affect Lands in prejudice of singular Successors unless they be real by Possession Quaeritur If such Rights may be registrate in the Register of Reversions albeit the Act of Parliament doth not mention the same And if they be registrate if they will be real as Reversions Locatio conductio albeit they are not in Law inter Contractus qui re fiunt and by our Custom they are not effectual unless they be Re and cled with possession before which they are personal as to the Contracters and their Heirs but after that they become real Rights and bind singular Successors Quaeritur therefore if a Tack of Lands be set to a Person to enter at Whitsunday thereafter And thereafter another Tack be set to another Person before that Term so that neither can have Possession What way the second Tacksman may perfect his Right so that he may be preferred Answer It is thought he may make intimation of his Right to the present Tennent and require him to remove at the Term and protest for remeed of Law Quaeritur Why Tacks without Possession do not prejudge singular Successors and yet Tacks do prejudge beneficed Persons Answer Beneficed Persons are not singular Successors which properly are such as do acquire and purchase Whereas Prelats or Beneficed Persons are Successores Titulo Vniversali and are considered as singular Incorporations whose Deeds do bind their Successors When any Person is infeft in Teinds Quaeritur If he may set Tacks longer than during his Right in prejudice of the Buyers or other singular Successors A Tack being set to a Person for fifteen Years without mention of his Heirs or Executors Quaeritur Whether it be meerly personal Or at least the Heir if the Tacksman decease before expireing of the Tack should have Right during the time foresaid Answer It is thought that Tacks should be stricti Juris and there being no mention of Heirs the said limitation of time imports only that the Tacksman should have right if he should live all the said time and not after And in Tacks industria conditio Personae is to be considered if the Tennent be a substantious and vertuous Person whereas Heirs may be Infants and not succeed in the Conditions foresaid If a Tack be set by a Church-man to a Feuer and his Heirs succeeding to him in the right of the Feu if the Teinds of the feued Lands may be assigned there being no mention of Assigneys 2. If it may be Comprysed 3. If it cannot be assigned Will the Tack fall by the Assignation Tack of the Teinds of Paikie Back-Tacks and Prorogations WHat is the Reason that in Wadsets Back-tacks are valid without a definite Ish viz. During not Redemption Item In Prorogations Tacks of Teinds to begin after the Ish of the former though the Titular be denuded in the interim Answer In Wadsets the Back-tack is in corpore Juris and the Wadset is with the burden thereof the Wadset and Backtack being correspective Rights So that who succeeds in the Right of the Wadset can have it no otherwise than cum causa As to Prorogations they are granted in rem and by the authority of the Judge Tack of Teinds A Tack of Teinds being set to a Person and his Heirs and Assigneys for his Lifetime and four nineteen Years after Quaeritur If he be year and day at the Horn will the same fall under his Liferent Escheat only as to His Liferent or entirely If after his decease it would fall under the Liferent or under the single Escheat of his Heir If it be for many nineteen years exceeding the longest Life of any man Will it fall notwithstanding under a single Escheat seing there is not a formal Liferent constitute If a Tack for many nineteen years should be assigned will the same fall under the single escheat of the assigney seing there is no liferent as to him and the liferenters may all die in his lifetime Will not the Assigney have Right for the lifetimes of the Heirs though they be not served Heirs The Tack being for three Lifetimes and certain nineteen Years after Quid Juris Where the Tacksman has no Heirs so that there is place to a Gift of Bastardy or ultimus haeres Tacks of Lands being real by the Act of Parliament in favours of Tennents Quaeritur Quid Juris As to Tacks of Teinds TailÈies WHen a person having acquired Lands provides the same to his Heirs Male Quaeritur Whether the Maxime viz. Haereditas descendit Conquestus ascendit has place in TailÈies If a Tutor Intrometting with the Duties of Lands Entailed to the Heirs Male may not employ the same upon security to the Pupil and his Heirs Male upon pretence that it should be presumed that it was in the Parents intention as appears by the Entail Answer It is affirmed that it was so decided in the case of the Heirs of Cockburns-path which we have not seen But it is thought that a TailÈie being Institutio Haeredis as a Tutor could not make a Testament for his Pupil nor name an Heir and Executor for his Pupil so he could not make a TailÈie either in Land or Money There being a TailÈie in these terms that it should not be lawful to break the same and the Fee having descended to a Woman by vertue thereof who did notwithstanding resign the Fee in favours of the Husband and the Heirs of the Marriage which FailÈieing to the other Heirs of the former TailÈie and thereafter the said Heir of TailÈie having obtained a Decreet of Reduction of the said Right Ex capite Minoritatis for eviteing the hazard of the Clause irritant in the first TailÈie albeit the Right granted to her Husband was ratified in Parliament with the clause that the Ratification should not be Lyable to the Act Salvo Jure Quaeritur If the Husband be Forefaulted and his Posterity disabled if the Heirs of TailÈie having Right to succeed after the Wife and her Children may be prejudged by that Forefaulture Answer It is thought not
indirect way is taken away vide Transumpts Quaest 1. hujus Literae Terce A Person having disponed Lands bona fide but being prevented by death before the Buyer was Infeft Quaeritur Whether the Relict will have right to a Terce Ratio Dubitandi The Relict has a Terce of all Lands wherein her Husband died infeft and is not lyable to personal Creditors On the other Part it seemeth against Reason That the Husband having bona fide disponed and the Heir being lyable for the Implement the Relict should be in better case than the Heir who has no part and that the Relict should have only Right to a Terce of Lands undisponed and that there is a difference betwixt a Disposition and other Personal Debts seing a Disposition is Jus ad Rem which cannot be said of other Obligements And these Words That she should have Terce of all wherein the Husband died infeft ought to be understood Civiliter Viz. undisponed Quaeritur If Lands be redeemable Will the Relict Tercer have any part of the Money whereupon the Lands are redeemed specially when the Husband died infeft upon a Compriseing Ratio Dubitandi The Law gives unto Relicts only a Terce of Lands and not of Sums of Money and there is a difference betwixt a Tercer and a Liferenter who is provided to a Liferent of Lands under Wadset A Person being obliged for a most onerous cause to dispone his Lands and deceasing before Infeftment or Resignation Quaeritur If his Relict will have a Terce notwithstanding of the Disposition Ratio Dubitandi That it is hard the Relict should be in better case than the Fiar and Heir from whom the Lands may be evicted by a pursuit for implement And though the Husband died Infeft his Right was resolubile and such as might have been evicted from him 2do A Reversion is but pactum de retrovendendo and in this case there is a full Vendition and yet an order may be used upon a Reversion which will either prevent the Terce or extinguish it Quaeritur If a Reversion though not Registrate will militate against the Relict to prevent her Terce or to Redeem Ratio Dubitandi She is not to be considered as a singular Successor but as having a Right by virtue of and as depending upon her Husbands Right yet standing in his Person whereas he is denuded in favours of a singular Successor It is Indubii Juris That the Husbands Debts that are only personal do not prejudge a Relict of her Terce But Quaeritur whether a Comprysing before her Husbands decease will militate against her And if as to this point there be a Difference betwixt a comprysing whereupon the Superior is charged and whereupon there is no charge Quaeritur If a Disposition whereupon there is Resignation will prejudge a Terce Lands being Wadset for a certain Sum Quaeritur If the Relict of the Creditor will have a Terce both of the Lands and in case of Redemption of the Sum of money If a Wadset be to a Husband only and after his Decease to his Wife And an order be used and declared Quaeritur If she will get a Terce of the money And in that case whether the Executors will not only have Right to the two parts but to the third part of the Sums consigned with the burden of the Relicts Liferent Cogitandum A Lady by her Contract of Marriage being provided to a Liferent and infeft base in satisfaction of her Terce and what else she may pretend Quaeritur If the Superior questioning her Right as base she may have recourse to a Terce as renounced in behalf of the Husband and not of the Superior and the Renunciation being causa data intuitu of her Liferent he cannot debar her from the same and take any advantage by the said Renunciation The Lady Ballencreiff Quid Juris as to a Tercer being Liferenter of a third part Answer The difference betwixt the Liferent and Terce is That the Liferenters Right is anterior and certain but the Terce is posterior and uncertain So that the Fiar may sell the Lands in which case there would be no Terce vide Liferenter qu vltima Territorium TErritorium est universitas agrorum Jurisdictione munita Jus Fluviat p 42. num 513. Testament IF a Testament may be Holograph If a Movable debt be due to an English Man who is deceast must it be confirmed in Scotland è Contra If a Nuncupative Testament in England will have Right to a Debt due in Scotland Ratio Dubitandi it is valid in England mobilia non habent situm sequuntur personam on the other part corpora mobilia nomina though they have not situm as Lands yet they have it so far as being res Scoticae they cannot be transmitted but according to the Law of Scotland Law being rerum Domina Quid Juris if it be offered to be proven by the oath of the nearest of kin that the Defunct did before him and other witnesses above exception Name the pursuer his Executor and universal Legatar will a nuncupative Testament so proven be sustained Answer It is thought it will not Seeing nuncupative Testaments are not in our Law admitted And it is de forma that they should be in Scriptis Quaeritur If a Testament may be sustained by way of Instrument Answer an Instrument under a Notars hand being but the assertion of a Notar is not considered as Scriptum which requires the Subscription of the party himself or in subsidium by Notars before Witnesses de ejus mandato Quaeritur If one Notar subscribing for the Testator be sufficient in Testaments Answer Affirmative in respect of the great favour of last wills and oftentimes there is not copia Notariorum Ministers by Act of Parliament cannot be Notars but in the case of Testaments Quaeritur If eo ipso that they are Ministers they may be Notars in Testaments Or if they must be admitted Notars Answer Cogitandum Quae Ratio That a Testament made in France or Holland according to the custom there which is different from ours should be sustained in Scotland as to any Scots interest falling under the same If a Minor having Curators may dispose of his Estate by Testament without the Curators consent A Minor of thirteen Years or there about having made a Testament and named the person with whom he was boarded and bred in Family his Executor and universal Legatar without the knowledge or consent of any of his Friends Quaeritur whether the said Testament may be questioned upon Circumvention without qualifying any other circumstance but that it is Dolus in re ipsa to elicite from a person of that Age a Right to all his Moveable Estate in defraud of his friends Answer It is Casus arbitrarius and much will depend upon circumstances if the Defunct had no Relation to the Executor and if the Executor did suggest that the Defunct should make a Testament and employed the Writer and did inform the
on the other part surrogatum sapit naturam surrogati and it is due to be given ratione rei and a renunciation to be given by the Heir Quid Juris in the case of a Contract whereby Lands are sold and a price payable if the Buyer charge for implement and consign the price and the Disponer decease whether will it belong to his Heirs or Executors After Redemption of a Wadset or comprysing the Wadsetter or compryser dying whether is it necessary that their Heirs be infeft and re-renounce or if a renunciation will be sufficient the Wadset or comprysing being loused and extinguished by Redemption Wadset Heretable or Moveable WHen there is a provision in a Wadset-Right that requisition should not louse the infeftment Quaeritur If after requisition the Sum be Heretable or Moveable Ratio Dubitandi The Creditor declares his resolution to have the Sum And on the other part a Sum due upon a real Right appears to be Heretable It is thought that until it be actually uplifted it should be Heretable sed Cogitandum If the Wadsetter be year and Day at the Horn and thereafter the Wadset be redeemed Quaeritur If the Superior will have the Wadsetters Liferent of the Sum due upon the wadset If before Redemption the Wadsetter Dispone the Lands suppose they hold Ward will they recognise simply or only as to the Wadsetters interest Ratio Dubitandi The Wadset is upon the matter but a Hypotheck and he can forefault no more than he has And on the other part whatever paction be betwixt the Creditor and Debitor yet as to the Superior the Wadsetter is properly and formally his Vassal so that ex ejus persona he has all the fruits and casualities of Superiority If a Wadsetter holding of the King commit Treason Whether or not he forefaults the Lands or only his interest of Wadset Ratio Dubitandi As in the former Querie and that the King should have hominem vivum mortalem confiscantem and all the casualities belonging to his Superiority or to His Majesty as King ex morte vel delicto Vasalli and albeit the Right be redeemable yet that is to be understood alse long as the Right is in the person of the Wadsetter but not after it is Extinct by Forefaulture Wadset Proper IF a Wadsetter of Ward-Lands die before Redemption will the Marriage of his Heir fall And if it fall will the Debitor if he redeem be lyable to refound the avail In Proper Wadsets a great part of the Sum being paid will the Wadsetter be comptable for the duties effeirand thereto Ward A Compryser of Lands holden Ward being infeft Quaeritur If these Lands will Ward by the decease of the compryser and if the Marriage of his appearand Heir will fall Ratio Dubitandi a compryser is but an interim Vassal for suretie of his Debt And upon that consideration such a Right in England is considered as a Chattel and not Inheritance vide Comprysing quaest 14. litera C. If the comprysing be Redeemed will the Debitor be lyable to refound the damnage sustained by the Ward and Marriage Quaeritur If the Ward of the comprysers Heir will determine and expire upon the Redemption Quid Juris in the case of proper Wadsets if the Debitor after Redemption will be lyable to refound the foresaid Damnage The difference being that a comprysing is an involuntar Right and the Wadset voluntar so that the Creditor seemeth to take his hazard A Creditor being infeft in Ward Lands upon a Wadset bearing back-tack will they Ward upon his decease and the Minority of his Heir If they Ward will the Debitor have the benefit of the backtack during the Ward The Superior having in effect consented thereto We have seen a Charter granted to the Earl of Home viz. To George Earl of Home and Mareon Halyburton of the Earldome of Home and other Lands thereinmentioned some of them holding Ward Which Charter is granted to them in Liferent and to their Son Alexander in Fee dated in Anno 1538. which bears that though the said Alexander be infeft in Fee yet if the time of the Liferenters decease he be Minor his Ward and Marriage shall fall to the King Item It bears a reservation of Terce to the said Mareon notwithstanding of the said Fee If the Ward of a person who is Appearand Heir as to a Wadset Right do not determine by a Redemption of the Wadset And the same Question may be as to the Liferent of the person infeft upon the Wadset Answer It is thought that it will determine his Right being Jus resolubile And though the Ward be considered as fructus Dominii directi and being gifted it may seem that the Donator cannot be prejudged yet that is to be understood when the Vassal has an absolute Right but not when the Right is qualified and resolubile If the Appearand Heir of VVard Lands being pubes and Doli capax commit Treason will his VVard be determined vide Marriage questiones 17. 18. in litera M. Lands holding VVard being full the time of the Vassals decease by an Infeftment upon a Comprysing but the Comprysing being thereafter redeemed by the Debitors general Heir being Minor Quaeritur If the Superior will have the VVard Answer It is thought not seeing the Heir does not succed to the Lands as Heir to his Father who was not Vassal but as general Heir has Right to the Reversion whereupon he has Redeemed and Modus Forma is much to be considered If the Comprysing does extinguish being satisfied by Intromission Quaeritur If the Heir being Minor there will be a Ward in that case Answer It is thought not Seing the Comprysing does extinguish not ab initio but ex post facto and the Heir cannot be said to be the Appearand Heir of a Vassal the Lands being full as said is the time of his Fathers decease And albeit there is not a formal and ordinar legal reversion no Money being to be paid yet there is upon the matter Jus Retrahendi to the Appearand Heir vide Comprysing Quaest 37. litera C. Ward Lands QVaeritur A Superior of Ward Lands having confirmed a base Infeftment whether will the Subvassal be Lyable to the Ward or Non-entry falling by the decease of the Vassal Ratio Dubitandi Hope giveth only that reason in the case of Lands holden of the King that Confirmations bear a Salvo of all Rights Duties and Services By the Act of Parliament _____ The Superior during the Non-entry and Ward had Right only to the Feu-duty due to the Vassal by the Subvassal Quaeritur If the Superior be in the same case by the confirmation as he was by the said Act of Parliament notwithstanding the Act of Parliament 1606 in favours of Subjects Superiors of Ward Lands If the Appearand Heir of a Vassal of Ward Lands renounce to be Heir will his Marriage notwithstanding fall either single or double Ratio Dubitandi he was never Vassal and caelibatus is not
not starve and that his Grand-Father whom the Defender represents as Heir having provided him as said is to the foresaid Sum to be payed at the time foresaid did acknowledge that he was obliged to provide him being his Grand-Child and that until the time his provision should be payable he and his Heirs were lyable to his Entertainment being Debitum Naturale The Lords this day did Demurre And the case being of consequence as to the preparative thought fit it should be further thought upon D. 3. Ferguson contra More Eodem die IN the case Ferguson contra More the Lords Found That Compensation should not be granted against an Assigney upon a Debt of the cedent Assigned to the Suspender unless intimation had been made to the Cedent before the Chargers intimation of the Assignation made to him by the Cedent D. 4. Inter Eosdem eod die IN the same case two Persons being obliged Conjunctly and severaly as principal Debitors to pay a Tocher without a clause of relief pro rara It was found that de Jure inest D. 5. Pringle contra Cranston eod die IN the case Pringle of Greenknow contra Cranstoun Found that a subvassal being infeft by a Baron cum Curiis Bloodwitis may hold Courts and unlaw for Blood D. 6. Eleis contra Keith and Wiseheart 15. Decemb. 1665. IN the case betwixt Mr John Eleis and Mr Alexander Keith and Wiseheart It was Found That Elizabeth Keith Spouse to Mr William Wiseheart Minister at Leith having by Bond granted by her Husband and her obliged her self to pay to the said Mr. John the Sum of 6000. merks and for his further suretie to infeft him in certain Lands pertaining to her which bond contained a procuratory of resignation The said bond though null as to the obligement to pay the said Sum was valide as to the Right of the Lands And that the said Elizabeth having thereafter disponed the said Lands in defraud and prejudice of the said Mr John was lyable to the said Mr John and upon that ground The Lords found the said Mr John as Creditor to the said Elizabeth might question any fraudulent Rights made by her to his prejudice D. 7. Grants and Row contra Visc of Stormont eod die DAvid Viscount of Stormont having obtained a Decreet of Reduction against _____ Grants of their Right of certain Lands for not production _____ Grants and _____ Row did reduce the said Decreet against _____ now Viscont of Stormont upon production of the Rights called for in the first Decreet And in this Reduction The Lords did suffer and admit the said Viscount to insist in the said first Reduction he produceing the said David Viscount of Stormont his Right and instructing that he represents him Though the said first Process was not transferred in the Person of the said Viscount active and against the Pursuers of this Reduction passive and the summonds of Reduction whereupon the first Decreet proceeded was not produced Which The Lords allowed to be supplyed by production of the Decreet and a paper containing such reasons of Reduction as Stormont thought fit to give in And that in respect it was the fault of the Defenders in the first Reduction that the Writs were not then produced And they and these having Right from them being reponed it was just that Stormont and his Heirs should be likewise reponed D. 8. McLeod contra Young 19. Decemb. 1665. WAlter Young Harie Hope and _____ having Written to the Lord McDonald that they had commissionated _____ Donaldson to buy Cows for their use and that for such as should be bought from him they obliged themselves to pay all such Bills as should be drawn upon them and the said Donaldson having drawn a Bill upon the saids Persons and any of them Found that in respect they were partners and socii as to the bargain and the Lord McDonald had upon their letter trusted and sold the Cows to the said Donaldson they ought to be lyable in solidum conjunctly and severaly D. 9. Dickson contra Sandilands 21. Decemb. 1665. IN the case betwixt _____ Dickson of Killoch and Sandilands his Mother and her present Husband It was Found that a Husband being obliged by Contract of Marriage to provide the liferent of such Lands as he should acquire during the Marriage to his Wife in liferent and to the Heirs of the Marriage and his Heir being pursued for implement and for resigning certain Lands acquired by the Husband for a liferent to the Relict The Relict her liferent and Right should be with the burden of a Sum of Money borrowed by the Husband for making the said purchass as to the Annualrent of the said Debt during the Relicts Lifetime The Lords considered that though in order to other ends and effects and in special to determine the Succession in favours of an Heir of conquest whatever Lands are acquired by any person titulo singulari are esteemed Conquest yet in Contracts of Marriage such obligements anent conquest are to be understood of what is acquired by the Husband with his own means and Moneys seing what is acquired otherwayes the Price or a part of it being borrowed and the Husband being Debitor for the same upon the matter and in effect is not conquest and a free accession to the Husbands Estate in so far as the Price is a burden upon the Husbands Estate and as the Husband if he had been charged himself might have satisfied the obligement by giving an Infeftment with the foresaid burden so the Heir may do the same D. 10. Lepar contra Burnet 23. Decemb. 1665. IN the case betwixt Lepar and Dam Rachel Burnet and the Laird of Prestoun her present Husband these questions were agitated and decided 1. If a Husband get in Tocher with his Wife being an Heretrix more than an ordinary and competent Tocher which he might have gotten with another The Husband and his Heirs will be lyable after the Marriage is dissolved by the Wifes decease in quantum lucratus est for the Wifes Debt And the lucrum will be considered to be the benefit he has gotten above an ordinary Tocher 2. The Lords inclined to think That though a decreet of registration was obtained against the Wife and her Husband for his interest The Husband will not be lyable the Marriage and his interest ceasing And that an ordinary Tocher being ad sustinenda onera is not lucrum 3. Heirs portioners are lyable for their own part reserving action in case any of them become irresponsal and if the Creditor having done diligence cannot recover their parts he may have recourse against the rest 4. It was moved but not decided whether the others being non solvent The responsal Heir should be lyable for their proportion in solidum Or only for What he has gotten of the defuncts Estate D. 11. Bryand contra Grhame 3. January 1666. IN the case betwixt Mr Andrew Bryand and George Grhame The said George being constitute assigney to a
that pretence That the possession of the principal Lands is the possession of the Warrandice fictione Juris It was Answered That there is no such fictio warranted by any Law and so it is Fictio but not Juris 2do It is a Fictio contra Jus cui Jus resistit in respect the Heretor by the publick Infeftment of property being in possession no other person can be said to be in possession seing there cannot be two Domini in solidum nor two Possessores by distinct Rights having no subordination or dependance one upon another as Liferenter and Fiar Superior and Vassal Master and Tennent or such like 4. It is clear that the possession of the principal Lands cannot be thought the possession of the Warrandice Seing if after Fourty Years the principal Lands should be evicted and a pursuit for Warrandice and recourse should be in ented upon the Right of Warrandice though Prescription cannot be obtruded yet if there be any defect in the Infeftment of Warrandice as v. g. The Disposition is subscribed by one Notar or such like The same may be alledged Whereas if that Infeftment were cled with Fourty Years Possession the Right would be prescribed and could not be questioned upon any Ground whatsoever but Falsehood In this Process It was Questioned whether the Heretor who had the publick Infeftment having been in Possession above Seven Years should have the benefite of a possessory Judgement until a Declarator and a Decreet in petitorio Some of the Lords thought that in the case of Warrandice the Heretor should not have the benefite of a Possessory Judgement against the Pursuer upon an Infeftment of Warrandice quia non valebat agere But the question was not decided D. 16. Cranston contra Wilkison 14 July 1666. BEtwixt Cranston and Wilkison It was Found Newbyth Reporter That a Person being conveened as representing his Father who was alledged to be vitious Intrometter to the Pursuers Debitor the Title being passive and penal could not be a Ground of Action against the Defender to make him Lyable to the whole Debt But only in so far as should be proven the Defunct did Intromet and was Locupletior quia actio poenalis non transit inhaeredem And the Defunct if he had been pursued in his own Life might have purged the said Title D. 17. Burnet contra Johnston 17. July 1666. JOhnston of Frosterhil having Disponed his Lands with absolute Warrandice in favours of Gordon of Birsemoir Reserving his own and his Wifes Liferent and thereafter having Disponed the same Lands in favours of Mr. William Johnston who did obtain the first Infeftment And being charged at the instance of Alexander Burnet having Rght by Assignation to the Disposition in favours of Birsemoir The Letters were found orderly proceeded notwithstanding the Suspender alledged the Charger had no interest dureing the Suspenders Life Seing he never did nor could possess by reason of the Reservation foresaid And the Lords found a difference when Warrandice is craved upon a deed of the Party obliged and upon any other ground And that as to his deed he may be charged to purge it without necessity to alledge a Distress D. 18. Wedderburn contra Scrimzeour 18. July 1666. A Father having left a Legacy thinking his Wife was with Child in these terms That if his Wife should have a Male Child the Legatar should have the Sum of 4000 Merks And that if she should have a Daughter the Legatar should have the Sum of 5000 Merks The Lords Found That though she had no Child the Legacy should be effectual ex praesumpta voluntate Testatoris seing it cannot be thought but that he rather intended a Legacy for him if he had no Child Than in the case she should bring forth a Child Et in conditionibus primum locum obtinet voluntas Defuncti eaque regit conditiones L. 19. ff de conditionibus Newbyth Reporter D. 19. Steill contra Hay Eeod die A Tennent being Ejected Ejection was sustained at the Masters instance though the Tennent did not concur But it was not sustained quoad omnes effectus viz. As to violent profits Juramentum in litem but only that the Master should be in the same condition he was before the Ejection and should have the same manner of possession as if the Land were not void and to uplift the duties and to put in and remove Tennents And for the Bygone ordinary Duties in the same Process it was Found that the pursuer though he was not Infeft but only Appearand Heir to the Pursuer who was Infeft might pursue the said Action to recover his Possession having been in possession before D. 20. Hedderwick contra Wauch Eod. die THE Commissioners for the Borders upon the Verdict of the Inquest that the Pannel was guilty of Receipt of Theft having ordained the Pannel to pay 100 lib. Sterl within a short time and if he should faill to be sent to Barbadoes and loss his Escheat The Lords Found That by that Verdict there did arise to his Majesty the Casuality of his Escheat Whereof there being Jus quaesitum The King and his Donator could not be prejudged by a Doom which is contrary to Law And that in such cases of Capital Crimes the Law having determined the pain and especially the loss of the Escheat no Judge even the Justice General could moderate or lessen the samen D. 21. Bisset contra Broun 19 July 1666. IT was Found nemine contradicente That a Stranger residing in Holland animo morandi or elsewhere Though by the Law of the place his nearest of Kin without confirmation has Right to all Goods or Debts belonging to him Yet if the Debt or Goods be due by Scots-men or be in Scotland they cannot pursue for the same unless the Right thereof be setled upon them according to the Law of Scotland by confirmation if they be Moveables Or by a Service if they be Heretable Hay Clerk D. 22. Thomson contra McKitrick Eod. die FOund that a Comprysing may be deduced upon an Heretable Bond whereupon Infeftment had followed the same being payable without requisition albeit a Charge of Horning do not preceed seing there may be poinding upon such a Bond And there is Eadem Ratio as to Comprysings and the Denounciation is a sufficient Intimation that the Compryser intendeth to have his Money Hay Clerk In the same Cause The Lords having sustained a Seasin of burgage Lands whereto the Sheriff-clerk was Notar there being no Town Clerk for the time by reason in the time of the English Usurpation The Magistrates and Clerk refused the Tender The Lords Found That the said Seasin being within Burgh though not under the hand of the Clerk was not null upon that Ground that it was not Registrate Because though the reason of the Act of Parliament for Registration of Seasins and the exception of Seasins within Burgh be that Seasins within Burgh are in use to be Registrate by the Clerks in the Towns Books
yet the said reason is not exprest in the Act of Parliament and the Act of Parliament excepting Burgal Seasins the Party was in bona fide to think that there was no necessit of Registration D. 23. Eleis contra Wiseheart Eod. die A Wife being obliged with her Husband to pay a Sum of Money and to Infeft a Creditor in her Land Though the Bond was not sustained as to the personal obligement to pay yet it was found valid as to the obligement to Infeft and the Procuratorie of Resignation contained in the Bond And the Wife notwithstanding having Disponed her Land she was found Lyable for the Sums as Damnage and Interest This Decision seemeth hard In respect albeit a Woman may Dispone her Land with consent of her Husband yet she cannot bind to pay a Sum of Money And in the case foresaid non agebatur that she should Dispone her Lands But that she should be Lyable to the Creditor and for surety he should be secured in her Land And the principal obligation being void the accessory of surety could not subsist D. 24. Eodem Die IT was debated but not decided whether the Tenor of a Comprysing may be proven there is an Act of Parliament Ja. 6. Parl. 6. That the Tenor of Letters of Horning should not be proven and there is Eadem if not more Ratio as to Comprysings the Solemnities being greater and more And if a Comprysing which is in effect the Execution of a Messenger may be made up by a probation of the Tenor a paritate rationis Poindings and Interruptions of Prescription by Citations and Executions and Intimations of Assignations may be made up by Witnesses and Arrestments and Decreets D. 25. Minister of Moram contra Bairfoot Eodem die THE Minister of Moram having pursued a Reduction of a Tack set by his predecessor upon that Ground that it was above three years without consent of the Earl of Buccleugh Patron for the time The Tack was sustained in respect Francis Stuart had consented in whose Favours Buccleugh by a Decreet Arbitral was obliged to denude himself of the Patronage This Decision seemeth to be hard seing Buccleugh was full Patron and was not denuded by the said Decreet And the Right of the Patronage might either have been Comprysed from him or Disponed by him effectually notwithstanding of the said Decreet which did not settle the Right of the Patronage in the said Francis his person but was only the Ground of a personal Action against Buccleugh for denuding him of the Right of the Patronage And as Francis could not present so he could not consent as Patron to Tacks Upon these considerations diverse of the Lords were of the contrair Opinion D. 26. McKenÈe contra Fairholme 24. July 1666. IN the case of MckenÈie against Mr. John Fairholme Sir George Mckenzie having by way of Reduction questioned a Bond granted by his Father and himself as Cautioner as null ipso facto Upon that Ground that he was Minor when he Signed the Bond And his Father being Administrator of the Law and in effect Curator to him had not Authorized him as Cautioner and could not be author in Rem suam the Pursuer becoming Cautioner in Rem and at the desire and in behalf of his Father The Lords did not this day decide the Question some being of Opinion That a Father though if his Children be Impuberes and Pupils be the Tutor and Administrator of Law ye he is not Curator to his Children being Puberes Seing a Son if he should desire other Curators to be given him his desire could not be refused Et habenti Curatorem Curator non datur Vide infra 26. July 1666. And 7. Decemb. 1666. D. 27. Petrie contra Richart eod die RIchart of Auchnacant having a Wadset of 12000. Merks from Buchan of Portlethem did thereafter enter in a second Contract with Buchans Son and Heir who had Right to the reversion and diverse years Back-tack-duties being accumulated and made a Principal Sum it was agreed that there should be no Redemption but by payment of the Sum contained in the said second Contract made up as said is of the Sum contained in the said second Contract and the Back-tack-duties and by payment of the Annualrents so accumulated Mr Petrie Provest of Aberdeen having acquired the Right of reversion and having used an Order of Redemption and thereupon having intented Declarator it was alledged that he should have consigned the Sum contained in the said second Contract which he could not misken by reason as he not only knew of the said second Contract before he acquired the said Right but acted in relation to the said Contract and in effect homologate the same In so far as 1. By the said second Contract he and certain other persons being named and appointed to determine the question betwixt Richart and Buchan what should be paid to Buchan for the charges he had been at in prosecuting his Right against Richart The said Petrie had accepted a submission relating to the said second Contract whereupon a Decreet arbitral did follow ordaining 300 merks to be paid to Buchan for his charges 2. By the second Contract Buchan was obliged to cause Petrie being his friend to give bond that he shovld engage for Buchan's performance of the said second Contract and accordingly Buchan being charged to fulfill that head of the said Contract had procured a Bond from the said Petrie and produced it in Judgment the time of the discussing of the suspension 3. Petrie had assigned the 300. Merks of charges modified by himself and the instrument of intimation of the Assignation mentioned the said Sum to have been modified by the Decreet arbitral proceeding upon the said Contract From these Acts it was urged that knowing and having homologate the said Contract in manner foresaid he was in pessima fide to take a Right in prejudice of the Defenders and to pretend to be in better case than his Author The Lords notwithstanding Found that the said second Contract not being Registrat in the Register of Reversions he was not obliged to take notice of it and might redeem by payment of the Sums contained in the first Contract It was acknowledged by some of these who were for the decision that these Acts imported an Homologation But the second Contract though by our Law valid was not favourable and was against the common Law in so far as the accumulating Annualrents to be a principal Sum is usura usurarum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I have often urged that favour is not nomen juris and Law ought to be uniform and not Lesbia Regula plyable and variable upon pretences of favourable or not favourable Sed nunquam credita Teucris Cassandra D. 28. Harper contra Hamilton 25. July 1666. IN the case Mr John Harper contra Hamilton his Vassal It was decided that after the intenting a general Declarator of Non-entry the Vassal should be lyable not only for the retoured dutie but
Found That the Alledgance was not relevant unless he should offer to prove it really payed and profitably employed for the use of the Minor In this Process the Lords would not sustain the Reason per se unless Lesion were joyned and libelled viz. That the Lands were disponed sine Decreto Judicis D. 62. Shaw contra 13. Decemb. 1666. SHaw being confirmed Executor to his Brother a Factor at London and diverse Decreets being recovered against him at the instance of the Defuncts Creditors He desired a Suspension upon that Reason That he had done Diligence to recover the Defuncts Debts and Goods and that he could not satisfie the Decreets obtained against him until he should recover the Defuncts Estate and that he was content it should be divided amongst the Defuncts Creditors according to their Diligences and therefore craved a Suspension without Caution being content to make Faith that he could not get a Cautioner The Lords past a Suspension as to personal Execution only D. 63. Hamilton contra Brown 15. Decemb. 1666. HAmilton of Grange being pursued as representing his Father upon the Title of Behaving and Gerens pro Haerede for payment of a Debt of his Fathers It was alledged that this Condescendence viz. That he had behaved as Heir in sua far as he had granted Dispositions of Land belonging to his Father And 2ly That he had consented as appearand Heir to some Right of Lands apprysed from his Father Is not relevant unless it were said and alledged that he had done these Deeds before the expyring of the Comprysing seing he could have no Right after the expyring of the same and neither could be Heir nor Gerens pro Haerede as to such Lands And as to his consent it was not sufficient unless he had disponed The Lords inclined to be of this Judgement That his consent being as appearand Heir should import Behaviour and that though the Comprysings were expyred he might have an interest to question the same as not formal or Null or satisfied by Intromission or by some other Ground and that by his consent he was denuded of that Interest and therefore such Dispositions should import Behaving Yet in respect the Writes which were to be used to prove the Passive Title were not produced and much may depend upon the wording and conception of the same The Lords thought fit to ordain before Answer the Writes to be produced and assigned a Term to that effect But declared that their Act should be Litiscontestation quoad hoc That the Pursuer after the Term is run upon the said Act should not get others as if there were not Litiscontestation Lockhart for Grange and Birnie for the Pursuer D. 64. Hartshaw contra Hartwoodburn eod die SCot of Hartshaw pursued a Declarator of Property within the Bounds libelled and that he had been in Possession by pasturing and doing other Deeds of Property and debaring the Defender Hartwoodburn and his Predecessor In this Process there was an Act of Litiscontestation whereof a Reduction was intented upon that Ground that the Defender was absent and was Minor and indefensus wanting Tutors and Curators for the time his Tutor being dead and that he had a defence Minor non tenetur placitare The Lords Found If the Summonds had concluded the possessorie of Molestation And if that had been lybelled that the Pursuer the time of the intenting the Pursuit was in Possession would have repelled the Defence that non Tenetur against the molestation But because a Declarator of Right was only lybelled they reponed the Minor And Found that non tenetur placitare Longformacus for Hartwoodburn and Sir George McKenÈe for Hartshaw D. 65. L. Colvil contra Feuars of Culross eod die THe Lotd Colvil being Baillie of the Regality of Culross and lyable to uplift the Taxation of that Abbacy And having charged certain of the Vassals to pay their Taxation They suspended upon that Reason That a fifth Part more than the Taxation was stented upon them on pretence and in consideration of Charges The Lords Found That they could not be stented to more than the Taxation tho the Sheriff and Baillies of Regality be lyable to uplift the Taxation Yet it seems hard that they should be at the Charges of raising of Letters and Registration of Hornings and such like And albeit the Vassals who are content to pay their Proportion should not be lyable to more yet it may appear that it is reason that when the Sheriffs or Baillies give in what they have uplifted their Charges should be allowed D. 66. Hay contra Littlejohn 16. Deeemb 1666. LIttlejohn having comprised the Liferent Right of a Tenement in Leith the said Tenement became ruinous and by the fall of a part of it did crush a part of the next house adjoining to it belonging to _____ Hay of Knockondie In a Pursuit Knockondie against Littlejohn for Damnage and Interest The Lords sustained Process The Pursuer proving that the House was manifestly ruinous without necessity to lybel or reply that the Pursuer had required the Defender to repair his House It being sufficient that the case of the House was such as did really require and call for Reparation in order to his own Interest and for preventing his Neighbours So that it being his Fault that he did not repair the same he was lyable to refound the Pursuers Damnage And albeit by the Act of Parliament Liferenters may be urged to find Caution to keep their Liferent Lands Sarta tecta and in the condition they found them at their Entry And by the Civil Law Neighbours may be urged to find Caution Damni infecti the said Remedies are not privative in case any Prejudice be done before they be taken D. 67. Allan contra Campbel eod die EDinample Campbel being pursued as representing his Father upon the Title of behaving as Heir It was alledged that he intrometted with the Duties of the Lands condescended upon by a Right to two Comprysings against his Father It was replyed The Comprysings were not expired the time of his Fathers Decease so that in effect he was Heretor The Lords Found That Gestio being magis animi quam facti The Defenders Intromission by vertue of a Title did not infer Behaving D. 68. MenÈies contra Burnet Decem. 18. 1666. A Relict being provided to the Liferent of the conquest dureing the Marriage and pursueing for the same It was alledged that the Money in question which the pursuer pretended to be conquest dureing the Marriage did belong to the Defunct before the Marriage and that the Bond was renewed after it The Question was what way the said Alledgance tending to take from the Pursuer the benefite introduced in her favours by Write and by her Contract of Marriage could be proven Yet the Lords enclined to find it probable by the Debitor and the Witnesses in the Bond But before Answer They Ordained the Defender to use such Probation as he thought fit for proving the Alledgance Reserving
to themselves to determine what it should import D. 69. contra 18. Decem. 1666. IN a Process against an Heir of Provision It was Alledged that the Heir of Line ought to be first discust It was Replyed that the Heir of Line was conveened and Renounced And it being duplyed That the Estate belonging to the Heir of Line and whereto he should have Right if he were served Heir ought to be discussed The Lords Found No Process against the Heir of Provision until the Heir of Line was discussed and that the Renounciation of the Heir of Line was not sufficient but that the Creditor behooved to proceed to Adjudication contra haereditatem Jacentem belonging to the Heir of Line D. 70. Deacon of the Weavers contra the Magistrates of Edinburgh 1. June 1667. THE Deacon of the Weavers being imprisoned by the Magistrates of Edinburgh because he had disobeyed their Order anent the putting in their Hand a Box for the Poor of the Journey-men until some Questions betwixt the Masters of the Trade and the Journey-men of the same should be decided did crave by a Bill to be enlarged upon that reason that the Craft had intented a Reduction of the Contract betwixt their Predecessors and their Journey-Men concerning the keeping and having a Box for the Poor of the Journey-men And that until the Decision of the Process the Box ought to be keeped by their Deacon The Lords Ordained the Complainer to be enlarged by Consigning the Box in the Clerks Hands Upon occasion of the said Process it was agitated amongst the Lords Whether there could be a Contract and Transaction betwixt the Craft and Journey-men who are not an Incorporation and cannot oblige their Successors Seing there can be no Successors but of a Person or Incorporation But the Lords without giving Interloquitor upon that point Ordained the Reduction to be heard summarly Gibson Clerk MckenÈie alter Lockheart D. 71. Young contra Young 4. June 1667. IN the case Young contra Young It was agitated Whether a Husband be Lyable for his Wifes Debt before the Marriage being proven no otherways but by her Oath dureing the Marriage If the Husband declare he does not distrust her and believeth she hath declared Truth The Lords did not decide the point but some were of the opinion That if the Husband Declare upon Oath that he believeth she did Declare Truth he will be Lyable in respect that by the Law the Husband is Lyable for the Wifes Debt being Legally proven And the Question is only whether the Wife may declare in prejudice of her Husband which she cannot do because otherwayes it may be in the power of an untoward Wife to undoe her Husband which inconveniency ceaseth when the Husband declareth he hath no reason to distrust the Wife and that he believeth she hath told Truth The great Question will be Whether the Husband may be urged to give such an Oath of Credulity Seing whatever a Husband thought yet having an Imperious Woman he should be forced to comply with her and to declare that he believeth her otherwayes he would have a miserable Life Scot Clerk D. 72. Thomson contra Stevenson Eod. die IN the case Thomson contra Stevenson The Lords Found that the Extract out of the Kirk-Session Books is not a sufficient Probation of Age to infer Reduction Ex capite minoritatis But the case being difficilis probationis after a considerable time They Found that aliqualis probatio ought to be received with the Adminicle foresaid Norvel alt Wallace Hamilton Clerk D. 73. Zinzian contra Kinloch Eod. die ZInzian having poinded pursued a SpuilÈie against Kinloch having meddled with some of the poinded Goods The time of the adviseing the Cause the Defender offered to improve the Poinding in data The Lords Repelled the Defence in hoc statu Reserving Action In respect the Poinding was produced ab initio notwithstanding it was alledged that the Defence was noviter veniens ad notitiam which the Lords did not respect because the Poinding being produced ab initio as said is The Defender should have tryed and might have had the same Information which he has now of the same In the same Process though the prices of the Goods SpuilÈied were not proven because it is to be presumed that the prices contained in Poindings are not too high And the Lords having considered the poinding Found the prices low Haystoun Clerk D. 74. Mitchel contra Mitchel 12. June 1667. THE Lords upon a Bill ordained Witnesses to be received before Litiscontestation and their Depositions to ly in Retentis Because they were in Town for the present and were to go to Zetland and senes valetudinarii and peregre profecturi And upon such like considerations others may be received Witnesses in hoc statu Scot Clerk D. 75. Lumisden contra Summers Eod. die IN a Declarator of Escheat it was alledged that the Goods Lybelled were Disponed to the Defender It was Answered that the Disposition was stante Rebellione It was Replyed That in Fortification of the Disposition it was offered to be proven that the Disposition was made for the price of Corn and Straw and other Goods disponed to the Rebel and whereby His Majesty and his Donator had benefite in respect the same was employed for the Entertainment of the Beasts and Sowing the Ground whereof the Encrease fell under Escheat The Lords Repelled the Defence And Found that the Rebel being Lyable only personally for the price of the Goods alledged Disponed and the property of the Goods in Question being his the same belonged to the King And the King and his Donator was not obliged to debate upon what account and occasion the Rebel was Debitor to the Defender Or what use he made of the Goods Disponed to him by the Excipient And is in no worse case than a Creditor poinding or Arresting or any other person acquiring Right to the property of Goods who would be preferred notwithstanding such pretences there being no such Hypotheck that can be pretended by the Law of Scotland Diverse instances were adduced by me to this purpose not only in behalf of the King but of other Superiors and Heretors as V. G. If a Superior should pursue Declarator of a Liferent and it should be alledged that after Rebellion the Rebel had Disponed a part of his Lands And that it should be offered to be proven that the Money for which the Disposition was given was lent for acquiring the Right of the Lands So that thereby the Superior had benefite thereby Or if the Master were pursueing by vertue of the legal and tacite Hypotheck competent to him and it should be alledged that the Tennant was Debitor to another for the price of Corns furnished for Sowing the Ground In which cases the Superior and Master could not be frustrate upon any such pretences Birnie alter Thoirs Frazer Hamilton Clerk D. 76. Dalrymple contra Eod. die A Reduction of a Testament being pursued Ex eo capite that the
Bond to Lindsay and the said Lindsay having Assigned the same to his Daughter The said William Gray Suspended upon a double poinding against the said Assigney and a Creditor who had arrested It was Alledged for the Creditor that the Assignation was made by a Father to a Daughter to defraud Creditors It was Answered That the Father by Contract of Marriage was obliged in case there should be no Heirs Male betwixt him and the Assigneys Mother to pay to the Heir or Bairn Female at her age of 14. years 4000. Merks and until then to entertain her And that the Assigney being the sole Bairn of the Marriage her Father had given the Assignation foresaid for implement of the said obligement The Lords hav ng considered that the provision by the Contract of Marriage in favours of the Daughters is only in case there should be no Heirs Male of the Marriage and that the Father should have other Heirs Male of his Body so that the Daughter should not succeed to the Estate and that both the Father and Mother are yet living and of that age that it was not to be expected that the Father would have other Heirs Male of his Body by an other Marriage and his Daughter was his Appearand Heir whatsomever Therefore they Found that the case of the provision in favours of the Heirs Female did not exist and preferred the Creditor Lock-heart and Bannerman for Lindsay Bernie c. for Forbes Gibson Cl. D. 170. Fergusson contra _____ 21. June 1672. THE Lords Found That a Partie being within the Countrie the time of the citation upon the first Summonds and some time thereafter and goeing out of the Countrie before the second Summonds could not be cited at the Pear and Shoar of Leith upon the second Summonds without a warrand in the said Summonds to that effect D. 171. The Laird of Hermiestoun contra Cockburn Eod. die THE Lords Found That in the case and in all time coming where Witnesses are adduced before Answer they will only allow one Term so that upon any Diligence they will admit no Witnesses but those who are cited by the first Diligence Mr. Thomas Hay Clerk D. 172. Ramsay contra Carstairs eod die A Father in his Contract of Marriage being obliged to provide the Heir Female of the Marriage and to pay to her 20000 lib. at her age of 15 years and until then to entertain her there being only one Child and Daughter of the Marriage she and her Husband pursued the Father and his Curators he being furious to pay the said Sum. It was Answered That the said Provision being only payable to the Heir Female the Pursuer neither had nor could pursue upon that Quality and Interest dureing the Father's Life specially seing both he and his Wife the Pursuers Mother were living and of that age that they may have Heirs Male of the Marriage or other Daughters And if they should have Male Children the Case and Condition of the Provision would deficere and not exist and if they should have moe Daughters the Pursuer could not have Right to the whole Sum acclaimed It was Replyed That the Father was in effect civiliter mortuus and the Pursuers would find Caution to refound in either of the said Cases The Lords Found the Defence relevant and that such Provisions being settled upon Heirs Female by reason and in case of exclusion of the Heirs Female of the Marriage when Lands are entailed to Heirs Male and there are no Heirs Male of the Marriage The Term of Payment could not be understood to be during the Marriage Strathurd Reporter Gibson Clerk D. 173. William Sandilands contra The Earle of Hadington Eod. die THomas the first Earl of Hadington having Disponed certain Lands with absolute warrandice in anno 1610 The now Earl of Hadington was pursued as representing his Great Grand-father to warrand the said Lands from Astriction to the Miln whereunto they were astricted before the Earl of Hadington Disponed the same It was Alledged That the Warrandice doth not extend to the case of Servitudes such as Common Pasturage Thirlage and such like which are not latent and may and are presumed to be known by Purchassers who ought and do ordinarly enquire and inform themselves concerning the condition and burdens of the Lands they intend to purchase specially in the case in question the multure being not exorbitant It was Replyed That in Law where praedia either rustica or urbana ut optima maxima are Disponed they are Disponed as Libera And that the Lands in question are so Disponed it is evident in respect the Warrandice is absolute and they are Disponed cum molendinis multuris It was Duplyed That the Romans were in use to Dispone either simply or cum ista adjectione praedia ut optima maxima the import whereof was servitutem non deberi But where Lands are Disponed simply it is construed and presumed in Law that they are Disponed talia and such as they are And with such accessories either as to burden or advantage as tacite veniunt albeit these be not exprest as Servitudes either Active or Passive and as to the Warrandice it is of the ordinary Stile without mention of Servitudes and it appears from the stile and conception of the ordinary clause of Warrandice and the speciality thereinmentioned viz. Wards Non-entries Inhibitions Apprysings c. That such Incumberances are only intended whereby the Right or Possession of Lands or the Mails and Duties or any part of them are evicted Whereas in the case of Astriction the Heretor doth enjoy his Lands and Duties of the same entire and seing his Corns must be grinded it is not a material prejudice that they should be grinded rather at one Miln than an other and it appears by the Disposition that it was not actum and treated that the said Lands should be Disponed ut optima maxima the Warrandice being in the ordinary terms without mention of Servitudes And the Clause cum molendinis is only in the Charter and Tenendas and is ex stilo and imports only freedom of Thirlage as to the Disponer The Lords upon the foresaid Debate And that the said Miln was a Miln of the Barony of Torphichen whereof the Lands astricted are a part and that the same were astricted before the Earl of Hadington acquired the same they Found the Defence Relevant and AssoilÈied D. 174. Creditors of Tarsappie contra Kilfanes 23. July 1673. THE Lords upon Debate among themselves were of the opinion that a confident person having got a Disposition from a Debitor may at the Debitors desire satisfy such Creditors as he thought fit there being no Diligence done by other Creditors And as the Debitor might have done so himself so the Trustee may do And that it is provided so by the Act of Parliament 1621. They Found that the Trustee if he got any Ease by composition should apply the benefite thereof for satisfaction of the other Creditors Item That
loss by the event of that Process The Lords Found That the Executors having prosecuted a Process intented by the Defunct did their duty and officium should not be damnosum and therefore the Charges of that Process should not be upon their own accompt but should be defrayed out of the Executry but so that where Executors have no benefit by the Confirmation but are either simple Executors or universal Legators as to the superplus particular Legacies being payed if there be as much Executrie as will satisfie such Expences and the Legacies the Legacies ought to be payed intirely before the Executors have any benefit but if the Executrie will not amount to satisfy the Charges and particular Legacies the Charges are to be satisfyed and the Legacies to be abated proportionally and the Executor is to have no benefit but if he be a particular Legatar he is to be considered with the rest of the Legatars and to share with them proportionally Mr. Thomas Hay Clerk Concluded cause D. 182. Helen Mure contra John Law 6. June 1674. A Relict being pursued as Executor to her Husband for a Debt alledged she was only Executor Creditor for payment of 2400. merks provided to her by Contract of Marriage It was Answered That the Debt was satisfied at least compensed in sua far as she was obliged by the same Contract to give to the Defunct Goods and Gear to the value of 2400. merks which she declared she had in penny and penny worth and was worth the same which are the Words and obliged her self to put him in Possession thereof The Lords Found That the Husband having lived only 9. years after the Marriage because of the presumption that he had been silent all the time and had not craved nor declared the said Sum to be resting It was therefore to be thought that he had gotten the Goods and that the Obligement was satisfied and yet they thought that there being so much confidence betwixt Husband and Wife it were hard to put her to a full Probation They therefore Ordained her to give her Oath of Calumny that she had satisfyed the Obligement and to adduce some Probation and Adminicles to prove aliqualiter Mr. Thomas Hay Clerk Concluded Cause Mr. Rodger Hog alteri In the same cause it being further alledged that the Huband had payed for his Wife as much Debt as would exhaust that which she had brought with her and so that she had not payed it effectually The Lords Found That if she had put him in Possession of the Goods conform to the Obligement and that they were her own at least that she had a Right or coloured Title thereto that she was neither lyable to warrand either as to the eviction of the Goods or from any Debts seing the Husband taketh his hazard and in Law is lyable to the payment of the same Some of the Lords thought That albeit the Husband be lyable to the Creditors of the Wife whether she perform her part of the Contract of Marriage or not or whether he got any thing with her effectually or not yet it were very fit to consider the quality of the Debts of the Wife alledged payed by the Husband for if they were such as the Wife could not but know when she contracted Goods of the value foresaid and yet she did conceal them it were a Fraud and Cheat to oblige her self to be worth and give to her Husband Goods extending to 2400. merks when she knew she was not worth a Groat her Debts being so great as to evict the same They considered that in this case she did not dispone any Goods in particular but was obliged to a generalitie viz. That she was worth Goods of that value and she cannot be said to be worth in Goods the said Sum her Debt being equivalent Seing Bona are understood debitis deductis D. 183. Act of Sederunt eod die THE Lords thought fit to make an Act of Sedeâ—unt and to intimate it to the Advocats to the purpose following viz. That when an Alledgance is not admitted but a joint Probation is allowed before Answer if there be any other Alledgance found relevant and admitted to either Litiscontestation should be understood to be made as to that Alledgance 2. And likeways as to that effect that the Parties are concluded and cannot be heard thereafter to propone any other Alledgance 3. The Terms being run as to Alledgance not discust they are concluded as to the Probation of it as if the relevancy had been discust by a formal Act of Litiscontestation whereas it is remitted to be considered after Probation seing often ex facto oritur Jus and upon consideration of the circumstances after Probation the Lords have more clearness to determine Relevancy D. _____ 184. contra Hepburn 7. June 1674. THE Apothecary Patrick Hepburn his Son being pursued as Successor Titulo Lucrativo for a debt of his Fathers upon that Ground that tho the Right of Lands granted to him by his Father was before the Debt yet it was revocable and under Reversion to the Father upon a Rose noble when he contracted the Debt lybelled The Lords assoilÈied from the Passive Title foresaid but reserved Reduction It appears that the case was not without difficulty and that albeit future Creditors in some case may reduce Anterior Rights ex capite fraudis yet this is difficult and unusual and therefore it had been fitt to determine that Point viz. Whether an appearand Heir getting a Right revocable and of the nature foresaid should be lyable at the least in quantum seing if the Father had discharged the reversion he would have been Successor in respect of the Discharge after the Debt and the Son was a Child and the Father reserved and retained Possession and upon the Matter the Father 's not redeeming was a Discharge of the Reversion Actor _____ alteri Hog Concluded Cause D. 185. Cuningham contra Lees. 9. June 1674. THE Relict of James Deans alledging that her Husband had violently torn her Contract of Marriage pursued his Heir to hear and see the Tenor of it proven and offered to prove casum amissionis as said is The Lords albeit there was no Adminicle in write sustained the Summonds in respect there is a praesumptio Juris that there are Contracts of Marriage betwixt Persons of any consideration so that the Marriage was an Adminicle and the effect being meerly Civil and not Penal they had no respect to that Alledgance that the Process was after the Husbands decease and some 7 or 8 years after the deed D. 186. Paton contra Stirling eod die SIR Hary Stirling of Ardoch on Death-bed did by a Write acknowledge that the Right he had acquired from Doctor Paton of certain Lands was under Trust and for surety of Sums which he had payed for the Doctor whereupon Doctor Paton's Son intented a pursuit against Ardoch's Heir to declare the Trust and for Compt and Reckoning And before Answer The Lords having ordained Witnesses to
the said Impositions without repineing until after the Year 1664. That they did not so much question the Town 's Right to impose upon them the said Stents as the exorbitancy and frequency and inequality of the same as to their proportions they could not be heard now to plead and pretend exemption from the said Stents The Lords having Found as said is That the Lands of Drakies were not lyable to the said Stents The said _____ Roberson of Inches in behalf of himself and some other Feuars having only appeared in the debate and Forbes of Colloden who thought himself concluded by the above-written Decreet of Suspension and has consented to the same did notwithstanding desire that he might have the benefite of the said Interloquitor and that the parcel of Land which he had in the Forrest of Drakies might also be declared free of Stents seing there was eadem ratio and so there ought to be idem Jus as to him and the said other Feuars It was Answered for the Town of Innerness That he could not be heard in respect of the said Decreet of Suspension in foro and of his express consent therein contained Whereunto it being Replyed that the consent was only as to the individual Stent thereinquestioned and did not conclude him as to other Stents and that notwithstanding thereof it being now Found that the Forrest of Drakies whereof his was a part was free the immunity foresaid could not be denyed to him It was Answered and the said dissenting Lords were of the opinion that a Decreet in foro did bind him whatever others could pretend And it was evident by the said Decreet that it was then the Lords meaning Sir John Gilmour a person of great Parts and Integrity being then President that all the said Lands of the Forrest of Drakies should be lyable in all time coming and his consent is most positive and express to the Regulation of Stenting as to the future And the said Consent being premitted to the whole decerniture of the said Decreet doth influence and affect all the Articles and Heads of the same unless it had been limited and special as to an or moe and not all And it was so far from being limited to the Stent then in question that there is a Protestation subjoined to the decerniture in these Terms That Colloden and the Suspenders doe protest that they should not be lyable to such Stents as should be imposed for maintaining the Plea against themselves And exceptio protestatio firmat Regulam Sententiam in non exceptis iis contra quae non emissa est protestatio The Lords notwithstanding Found That Colloden should be free of Stents as to such Parcels as he had of the Lands of Drakies Thereafter the Town of Innerness did alledge that the Suspenders ought to be lyable as to the Milns and Fishings that they held in Feu of the Town seing they are undoubtedly the ancient Patrimony of the Town and they offer them to prove that they have been in use past memory to stent the same with the Burgal Lands when occasion required not only for Taxations imposed by Parliament but for the private use of the Town It was Answered That the said Alledgance was not now competent seing the Debate whereupon the Interloquitor proceeded was concerning the Suspenders Feues which they hold of the Town which comprehend both Lands Milns and Fishings and there is no reason of difference why the Milns and Fishings should be in an other case than the Lands It was Answered for the Town That in all the Debate there had been no mention of Milns and Fishings and they were content to make Faith that they did not understand the Debate to be concerning the Milns and Fishings but only the Lands of Drakies And if they had thought that they had been concerned to prove their Possession as to the Milns and Fishings there was that speciality that they might have proven more clearly their Possession as to the Milns and Fishings than as to the Lands and now they are able to prove the same Some of the Lords thought That the Question being of that Importance to an Incorporation and they wanting the Assistance of their most able Advocats upon the occasion abovementioned and the exception being undoubtedly relevant to inferr their Right and the conclusion of their Declarator as to the Milns and Fishings that they should be lyable to be stented if it were proven It were hard that their Right should be taken from them upon a quirck and pretence of Omission being upon a mistake as said is In end the Plurality of the Lords did Declare by their Interloquitor That if in November the Town should be able to make appear by ancient Records that they had been in Possession of stenting the Milns and Fishings with the Tenements of the Town when Impositions and Stents were laid on by the Town only and not by the Parliament for their private use that the same should be lyable as other Burgal Lands D. 191. Hamilton contra the Earl of Kinghorn 11. November 1674. JAmes Mauld of Melgum having assigned to James Hamilton two Bonds and he having intimate his Assignation to the E. of Kinghorn granter of the same did thereafter write to the said Earl shewing him that he had use for the Sums contained in the said Bonds and that he desired a course might be taken to pay the same And in Answer to his Letter the said Earl did Write and subscribe a Postscript upon a Letter writen to him by the said James Mauld to that purpose that the said James Mauld had assured him that he had made the Assignation foresaid upon assurance that my Lord should not be troubled to pay the said Debt and that he was about to take a course to that effect but that notwithstanding if he must be his Debitor he should take a course to pay the Annualrent but as for the Principal Sum it was not foreseen by him that he should be put to pay it at that time and he desired forbearance And thereafter being charged the said Earl suspended upon that reason that the said Bonds were granted by him to Melgum for the price of Lands Disponed by him to the Earl and by a Back-bond of the date of the said Bands Melgum was obliged to Warrand the Rental of the said Lands for two years and quatenus the Tennents should be short in payment of their duties the time forsaid he should pay wherin they should be wanting and that the Earl might retain in the first end of the foresaid Sums And that the said Earl had got a Decreet against the Tennents of the said Lands for payment of the Sums therein contained and therefor that he had ground of retention and compensation upon the foresaid Bond granted by Melgum effeirand to the Sums restand by the said Tennents Whereunto It was Answered that tho Compensation competent against the Cedent is competent against the Assigney yet where
continued still And Pilton's applying any part of the same for the use of my Lord Sinclair was so far from purgeing the Fraud that by the Act of Parliament it was a clear evidence and probation of the same And yet they thought That Pilton having out of respect to his Friend lent his name inconsideratly he might thereafter for his security take and the Exchequer might give Herdmanston's Liferent Escheat upon the account foresaid and the same cannot be thought to be to the behoof of my Lord Sinclair unless it had been either procured by my Lord Sinclair or granted expresly for his use And as to my Lord Sinclair's own Liferent His Majesty and Exchequer might qualify the Gift as they they thought fit and His Majesty might have been concerned upon many considerations that my Lord Sinclair should not want an Aliment and might either have detained his Liferent in his own hands in order to his Aliment or given the same sub modo and with the Burden thereof And the said Gift was given as to the Superplus foresaid for the Lord Sinclair's Aliment not to be modifyed by any other but by the Exchequer and at their sight and direction as the said Gift bears Upon the Grounds foresaid the Lords did prefer Pilton conform to the former Decreet Sir David Falconer and others for the Creditors alteri Dalrymple D. 199. Auchintoul contra Innes 10. Decem. 1674. THE Lords Found That a person being pursued as representing his Father or other Predecessors and denying the passive Titles the same ought to be proven and that the Defender by proponing a Defence in Jure as in the case in question that Annuities were discharged by the late Proclamation does not confess the passive Titles But if he should propone a defence founded upon a Right in the person of his Predecessor it would conclude him so that he could not pretend that the passive Titles should be proven Newbyth Reporter Vide 20. January 1675. Carfrae contra Talzifer D. 200. Stuart contra McDuff 11. Decem. 1674. IN a pursuit for payment of a Sum of Money It being Alledged That the Pursuer had intrometted with Moveables and Goods to the value of the Debt Lybelled pertaining to the Defenders Father for whose Debt he was pursued and that it was to be presumed that he had got the saids Goods in satisfaction of the same Debt unless he should alledge and prove an other Cause The Lords Found That if the Defence should be proponed in these Terms that the Pursuer had got the saids Goods in satisfaction and that they were data in solutum the Defence ought to be positive and that the delivery of the Goods was probable by Witnesses but the quality foresaid could not be proven otherwayes but by the Pursuers Oath But if the Exception was proponed so as to infer compensation viz. That the Pursuer had Intrometted with the saids Goods to the value of the Debt that it ought to be verifyed instanter by Write or Oath Castlehil Reporter Hamilton Clerk D. 201. Home and Elphingston contra Murray of Stenhop eod die IN a Competition betwixt an Assigney and an Arrester It was Alledged That the Assigney should be preferred because the Assignation was anterior to the Arrestment and tho it was not intimate yet the equivalent was done in sua far as the Debitor being desired to make payment to the Assigney and shewing his Assignation did promise to pay the same which upon the Matter was like a Bond of Corroboration which certainly would prefer the Assigney notwithstanding he had not intimate his Assignation The Lords Found That if the said Promise were verifyed by Writ it should exclude the Arrester but that it could not be proven by the Debitors Oath in prejudice of the Arrester And even as to the Debitor the said promise could not bind him being made in contemplation of a Right supposed to be in the person of the Assigney Which being Found not to be a valid Right there were no reason that the Debitor should pay twice And whereas it was pretended That if the Debitor had not accepted the Debt and promised payment the Assigney would have done Diligence so that he would have been preferable to the Arrester The Lords thought that sibi imputet that he had not perfited his Right as was Found before in the case of Pitfoddels contra Donaldson Forret Reporter Gibson Clerk D. 202. Moubray contra Arbuthnet 12. Decem. 1674. IN a Process for the single avail of a Marriage The Lords modifyed 9000 Merks the Rent of the Lands being proven to be 3000 Merks and it was thought that the avail of the Marriage should be in all cases of that nature 3. Years Rent D. 203. Lord Balmerinoch contra The Tennents of Northberwick 13. Decemb. 1674. THE deceast Sir William Dick having charged the Lord Balmerinoch for payment of a great Sum of Money due by a Bond granted by his Father and diverse other Noblemen who were Actors in the late times and did borrow the said Sums for the use of the publick as they called it and the said Lord Balmerinoch having Suspended upon diverse Reasons and also upon a Reason of Compensation Founded upon a Bond granted by the said Sir William to Sir John Smith whereupon the said Sir John had a Right to the Lands of Northberwick and had Assigned and Disponed the said Debt and Right in favours of the Lord Balmerinoch by a Disposition and Assignation Blank in the name of the Assigney and no Decreet being Extracted upon the said Process and the Act of Parliament anent publick Debts that no Execution should be for the same having interveened The Lord Balmerinoch having filled up the said Assignation in the name of James Gilmour did intent in his Name a Process for Mails and Duties against the Tennents of Northberwick The Creditors of the said Sir William Dick pretending Right to the said Lands by diverse Infeftments did compear in the said Process and alledged that the said Right whereupon the pursuite was Founded was extinct and satisfied In sua far as the said Lord Balmerinoch had Founded a Reason of Compensation upon the same against Sir William Dick which was sustained and whereupon there was a Minut of a Decreet Suspending the Letters against Sir William Dick for the Debt above-mentioned And that the said Assignation granted by Sir John Smith had been given up to Sir William Dick or his Son Sir Andrew as their Evident for Exonering the said Sir William of the Debt compensed upon It was Answered That there was no Decreet in that Process of Suspension against Sir William Dick And as to the said pretended Minute it was not produced And whereas it was desired that William Dounie who was Clerk for the time should be examined upon Oath concerning the said Minut and the giving up the said Assignation to Sir William Dick or his Sons It was urged that the Minutes and Acts of Process could not be made up by Witnesses
as to not delivery It appeared by his Oath that he was trusted to the behoof of the Pursuer and was in effect a Depositar so that he could not cancel the said Bond without consent of the Pursuer To which It was Answered That the Decreet was Extracted as said is and that immediatly upon the pronounceing of the same he had applyed to the Lords to the effect foresaid And it cannot be said that he had any Trust from the Pursuer but only from her Father And tho he could be thought to be a Depositar the manner and quality and terms of the Depositation could not be proven otherwayes but Scripto or Juramento The Lords notwithstanding Thought they were concerned to adhere to the Decreet being in foro least their Decreets should be obnoxious to that prejudice that even when they are in foro they may be questioned and altered Some of the Lords were of the opinion that the great consideration the Lords should have is to do Justice and that the party having omitted nothing upon his part neither before nor after pronounceing of the same and upon the matter the reason of Suspension as to the point of Justice and Law being unanswerably Relevant It was hard that a Party should be grieved upon a pretence of form there being a singularity in this case upon which the Honour of the Lords may be salved viz. That the said Decreet was Extracted with too much precipitation D. 226. Joynt Petition of the Advocates 26. January 1675. A Joint Petition was presented by the Advocates that had withdrawen whereby they did not expresly desire that they should be readmitted but did hold forth that they were free of and hated the very thought of Sedition and that the Lords who did best know the Reasons of their withdrawing would vindicate them to His Majesty and that they were willing to serve with that freedom which their predecessors had formerly and which they conceived was no more than was necessary for these of their station in order to the interest of the People that they acknowledge and were willing to submit to the just Power of the Lords as their predecessors had enjoyed the same and desired that the Petition should be transmitted to His Majesty as satisfactory Some of the Lords thought that the Petition was altogether dissatisfactory and should be thrown over the Barr being as to the manner in a joint and Factious way And as to the matter no ways satisfactory insinuating a qualification of the Lords Power and their Submission and that the Lords pretended to a Power which their Predecessors had not and that was not just Others of the Lords were of the opinion That whatever mistakes there might be as to the manner It was hard upon that account to reject it and that if the time was not so pressing that which was appointed for Addresses being to Elapse the very next day it might have been helped as to the manner by giving Intimation to the Advocates that it would not satisfy But there being no time for that and the certification being so high and heavy viz. utter and perpetual incapacity it might be justly said as it is Reported a Judge in England had said in the case of a person accused of Theft whom he enclined to favour by reason of the meanness of the value of the thing that was stollen being a Watch of Brass only and the matter of the Watch being beneath that value which the Law of England requires for punishing Theives Capitally And it being Alledged that the Fashion with the Matter did exceed the value foresaid It is said that he Answered That he would take no Mans Life for the Fashion and it were hard for the Fashion and modus and the way of Address to take from so many persons their Livelyhood and from the Countrey their Service that was so necessary to them And that the Advocates fault being a Joint-withdrawing they might conceive that the expiation of the same should be by a joint Address And yet the Petition was not joint as to all the Advocates concerned many having given in and being to give in several Petitions And as to the matter it was Represented that though the Petition is general yet the generals therein contained do imply the particulars that would be satisfactory seing the Lords did not pretend to any power but that which was just and no violation was intended of their Liberties neither was any innovation introduced or obtruded upon them or their carriage in their station Upon all which It was thought that the Petition should be transmitted simply to the effect it might import Interruption of the Prescription and Certification any Acts of Interruption even quales quales being sufficient And the more short that the Prescription be and the higher the Certification and prejudice of Prescription as in this case the Interruption being the more favourable The Lords notwithstanding Found that the Petition not being satisfactory could not be transmitted to any effect And yet did declare that albeit the Proclamation was conceived in these terms viz. That if the Advocates should not give satisfaction betwixt and the 28. day if they should apply upon the 28. day their Application should be thought to be within the time contained in the Act And that in stile of Law these words betwixt and a certain Term does not exclude the day of the Term. They declared also That the Petition being dissatisfactory upon that account amongst others viz. That they did not offer satisfaction nor desire to be readmitted That Petitions being given in severally and bearing that they desired to Re-enter and were willing to give satisfaction conform to the Kings Letter and Proclamation should be received and transmitted as satisfactory D. 227. Eod. die UPon a Bill the Lords Found That Parties having a joint and equal Interest in Lands and Tenements both as to the Right it self being disponed to them jointly and as to the respective Proportion and Parts of the said Tenements the principal Writes should be keeped by such as offered Caution to the other Portioners and that Transumpts should be given to the other Persons concerned upon the Common Charges of them all D. 228. 27. January 1675. IN the case abovementioned 5. January instant concerning Con-cautioners obliged conjunctly and severally for the Principal without a clause of mutual Relief The Lords Found That one of the Cautioners having payed and taken Assignation the others had a good Defence against him for his own part notwithstanding of the Reasons there abovementioned and that it was urged that the Co-cautioner could not be forced to relieve the Defender if he had payed the whole seing he had neither actio mandati there being none given by either of the Cautioners to others nor was obliged to relieve the other Cautioners by an express Clause which is ever insert when mutual relief is intended And that this is clear Law it appears from the Title of the Civil Law de
Fidejussoribus ff lib. 46. Tit. 1. leg 39. Et leg 36. ibid. Et. Leg. 11. Cod. eod Tit. The Lords Decided as said is In respect of a Practique produced betwixt _____ in anno _____ relating to a former Practique in anno _____ D. 229. The Minister of Tulliallane contra Colvill of Larg and Kincardne 28. January 1675. IT was Found by the Lords Commissioners for Teinds That the Heretors of Lands having Right cum decimis inclusis were not lyable to the Augmentations of Ministers Stipends and that no Locality could be given out of their Teinds the saids Infeftments being before the Year 1587. And that the Feu-duty payable to Church-men for Stock and Teind in Victual was not lyable thereto because the Teinds not being separate from the Stock and the Heretors having Right to the Lands free of Teinds in effect there were not decimae And by the Acts of Parliament and the Kings Decreet Arbitral Teinds are lyable to Ministers Feu-duties in consideration that the Lords of Erection and Titulars had Right thereto from the King since the Act of Annexation And that the King who might have questioned their Rights was pleased by the said Acts of Parliament and Decreet Arbitral to affect them with the burden of Ministers Stipends whereas such Rights cum decimis were granted by Church-men and did not flow from the King but from them at such time as by the Law then standing they might have granted the same D. 230. Doctor Hay contra Jamieson and Alexander eod die GEorge Steuart Advocate having comprised from _____ Con the Lands of Artrochie and others did dispone the said Lands and his Right of Compriseing to _____ Neilson and thereafter the said Neilson failing in payment of the price the said George Steuart did Comprise back from the said Neilson the said Lands and Andrew Alexander did also comprise from the said Neilson the said Lands and his Right foresaid Doctor Hay Having also comprised from _____ Con the foresaid Lands pursued an Improbation of the said first Comprysing at George Steuart's Instance and having called thereto the said George Steuart and Neilson and Marjorie Jamison who pretended Right to the said Lands he did obtain a Certification against two Bonds which were the Ground of the said Comprising upon Compearance and a long Dependance and long Terms assigned for produceing the said Bonds And thereafter the Doctor pursued a Removing from the said Lands against the said Andrew Alexander and others And it was Alledged for the said Alexander That he had Right to the said Lands and was in Possession upon a Right from George Steuart who had Right thereto as said is by a Comprising against _____ Con the common Debitor Whereunto It was Answered That the Defenders could not found a Defence upon George Steuart's Comprising Because the saids Bonds being the Grounds thereof were false and improven To which It was Duplyed That the Certification against the said Bonds was only granted against George Steuart and that the said Andrew Alexander was not called and that now there is produced the foresaids Bonds And that the Extracts of the same out of the Register of the Commissariot of Aberdene had been formerly produced but the Principals which were in publica custodia as the warrands of the same could not be then found by reason of the disorder of that and many other Registers upon occasion of the late Troubles and the same being now found aught to be received and sustained as the Grounds of the said Comprysing Seing they are not improven and found false by a Decreet of Improbation upon tryal of the Falsehood But a Certification is only given against the same for not production which at the most doth amount only to a presumptive Falsehood which is now taken away as said is by production of the saids Bonds seing praesumptio cedit veritati It was Answered for the Pursuer That all Persons whom he was obliged to take Notice of and to call to the Improbation of the first Apprysing were called viz. The said George Steuart at whose Instance the said Comprising was deduced and who had also Comprised from Neilson the Right thereof as said is and Neilson himself and that he needed not call the said Alexander who had only a subaltern Right and was not infeft and albeit he had comprised from Neilson yet by that Comprising he had not such an interest as the Pursuer was obliged to know in sua far as the Right of the Lands in question was settled in the Person of the said George Steuart by the Comprising against Neilson after which Neilson had only a Reversion and the said Neilson was called himself as said is And the said Alexander's Right by his Comprising against Neilson being only a Right of the Legal of George Steuart's Comprising against Neilson the Pursuer was not holden to take notice of the said Right and the said Reversion is not only now expired but was expired the time of the obtaining of the said Certification no Order being used thereupon And albeit the said Andrew Alexander was not called yet he did compear in the said Improbation and albeit he pretends that his right was reserved the said pretence is of no weight seing it was reserved only as accords And Certifications being the great Security of the People and specially where the same are obtained upon compearance and after diverse termes are assigned and after Certification granted the samen stopt for a long time upon expectation that the Writes may be got as in this Case the samen cannot be canvelled and loosed praetextu Instrumentorum noviter repertorum The Lords For the Reason foresaid thought hard to loose the said Certification but specially in this case seing the said Alexander will have and take the advantage of Stuarts expired Comprysing and exclude the Doctor who was a true and real Creditor to whose prejudice the said George Stuart and the other Defenders had patched up not only the said Comprysing for small Sums but other Rights which the Donator had been forced after he had Comprysed to question by a Reduction and had prevailed after a long dependence and after they had possest the Lands for a long time And on the other hand the said principal Bonds being now produced they thought it hard that the Doctor should take advantage of the same to exclude the Defenders altogether and therefore they proposed to the Doctor that he should grant a Reversion to the said Alexander upon payment of what was justly due to him within the space of two Years And the Doctor acquiesceing they decerned in the Removing with the quality foresaid Lord Glendoick Reporter Gibson Clerk Actor Chalmers alteri Thoirs Vide 17. February 1676. inter eosdem D. 231. contra Maxuel 29. January 1675. A Bill of Exchange being drawn upon three Merchants without mentioning that it was drawn upon them either severally or conjunctly and one of the persons upon whom it was drawn being pursued for the whole Sum
cross with certification pro confesso seing no person could be holden as confest who is not personally apprehended Mr. Thomas Hay Clerk D. 244. Duke of Monmouth contra Earl of Tweeddale eod die THere being a Transaction betwixt the Duke and Dutchess of Monmouth and the Earl of Tweeddale whereupon a Discharge was granted by the said Duke and Dutchess to the said Earl with consent of their Curators which was also superscribed by his Majesty taking burden for the Duke and Dutchess with an obligement that they should ratify after Majority The said Duke and his Lady pursued a Reduction of the said Discharge upon a reason of Minority and Lesion It was Alledged That all Parties haveing Interest were not called viz. The Officers of State for His Majesties Interest seing His Majesty was so much concerned that if any thing were evicted from the Defender His Majesty would be Lyable for the same The Lords Repelled the Defence Without prejudice to His Majesties Advocat to appear for his interest if he thought fit Stathurd Reporter Gibson Clerk D. 245. Irving contra Caruther 6. February 1675. THE Summonds being referred to the Defenders Oath who having declared that as to what was referred to his Oath he could not remember nor be positive It was debated amongst the Lords whether the Oath did prove or not Or if the Defender should be holden as Confest In respect he was to declare de facto proprio recenti and in such a case the pretence of non memini is neither excuseable nor relevant And so it was Found by the Lords tho some were of the Opinion that a person compearing and declareing upon Oath that to his knowledge he did not remember could not holden as confest seing he cannot be said to be contumacious and to want Memory is not a fault And after a party has declared it is only to be considered whether the Oath proves or not Mr. John Hay Clerk D. 246. Burnet contra McClellane eod die A Father being pursued as Behaving himself as Heir to his Son and Litiscontestation being made and Witnesses adduced the time of the Adviseing It was Alledged That the Father could not represent his Son as behaving because the Defunct had a Brother who was produced and at the Barr Whereto It was Answered That in hoc statu the Defence was not receivable and it could not be said to be noviter veniens seing the Father could not be ignorant that he had another Son The Lords in respect of the State of the Process would not receive the Defence tho verified instanter unless the Son would suscipere judicium and be content that the Process should proceed as against him which appears to be hard seing that which was to be proven was not only that the Defender intrometted but that he was appearand Heir and in casu notorio no probation was to be respected to the contrary and tho the Father could not but know that he had a Son yet he might be ignorant that his Son would be preferred to himself as to the Succession of his own Son and in damno vitando ignorantia Juris is excusable Mr. J. Hay Clerk D. 247. _____ contra Captain Martine and others 9. February 1675. A Ship being taken by a Caper and being found by a Decreet of the Admiral to be a Prize Thereafter upon a Decreet of the Lords reductive of that of the Admiral being found to be a free Ship the Stranger did urge payment against the Captain and the Owners of the value And It was Alledged That the Decreet of the Lords Ordaining Restitution was against them as correi debendi and not in solidum and that they are only lyable for their own parts Whereunto It was Answered That though it was found That the Captain had probable Reasons for bringing up the said Ship yet upon the matter the Stranger was wronged by the taking of his Ship and in casu delicti by spuilÈie or wrongous intromission or otherways Decreets against the Persons therein contained are construed to be in solidum and the Stranger cannot know what the respective Interests and Parts of the Owners are and ought not distrahi and to be put to Process against every one of them for declaring of their Parts The Lords Found That they were lyable in solidum Reserving their Debate and Relief amongst themselves as to their several Interests and Proportions Lord Forret Reporter Gibson Clerk D. 248. Burd contra Reid eod die THE Lords having formerly Found That the Cedents of Personal Bonds are lyable only to warrand debitorem esse but not esse locupletem It was pretended That there being a Question concerning Warrandice of a Right of Annualrent out of Land the same should be warranded no other way But The Lords Found That the Warrandice of Lands or of such real Rights upon or out of Land are absolute unless they be expresly limited and qualified by their Right Hamilton Clerk D. 249. Vetch contra the Creditors of James Ker and Peter Pallat. eod die SIR Robert Stewart in Ireland and his Son being Debitors by Bond in the Sum of 800. lib. starl to the deceast James Sanderson which Bond being conceived in the Form of English Bonds did not bear Annualrent The said James did assign the said Bond in Favours of Ronald Graham in trust and to his own behoof upon a Back-bond and thereafter did assign the said Back-bond in favours of James Ker and Robert Broun Merchants as to two Parts to the said Ker and the third part to Broun Sir George Maxuel of Pollock being Trustee and acting in name of the said Stewarts did grant a Bond to the said Ker and Broun making mention of the said Bond granted by the Stewarts and of the Assignation made by the said James Sanderson to the said Broun and Ker and that after Compt and Reckoning there was only resting of the said Sum 300. lib. sterl which the said Sir George in name of the said Stewarts is obliged to pay within three Moneths after that Stewarts Bond should be delivered to him with an Assignation or Discharge The said James Ker being deceased his Executors did intent Action against the said Sir George Maxuel for his part of the said Sum viz. 200. lib. In this Process William Vetoh did compear for his Interest and did alledge that the Sum in question due by Sir George Maxuel did belong to him having fallen under the Rebellion of the said James Sanderson and the Gift of his Escheat first Gifted to David Rodger fra whom the said William had right and thereafter to the said William himself and tho the said Bond granted by Sir George Maxuel was granted to the said Ker and Broun yet it was granted for the same Sums that were due by the said Stewarts to the said Sanderson as appears by the Bond granted by the said Sir George Maxuel so that the foresaid Sum due to Sanderson and the Bond for the same having as said is fallen
Veatch But because some of the Lords in voting were non liquet the Business was delayed Vide supra 9. Febr. 1675. inter eosdem And Vide infra 10. Novemb. 1675. D. 256. Parishioners of Banchrie contra Their Minister 16. February 1675. IN the Case of the Parishioners of Banchrie against their Minister The Lords Found That the Act of Parliament 3. Sess of his Majesties 1st Parl. cap. 20. Ordaining that ilk Minister should have Grass for one Horse and two Kine over and above their Gleb Did import That Ministers should have the said Grass or 20. lib. conform to the said Act albeit their Glebs which they had formerly did extend to four Aikers and much more than would be Grass if the same were left lee to that purpose for a Horse and two Kine Some of the Lords were of a contrary Opinion seing by the Act of Parl. K. Jam. 6. Parl. 18 cap. Where there is no arable Land 16. Soums Grass is to be designed for the four Aikers which the Law appoints to be designed for Glebes and upon the Ground foresaid Ministers having 16 Soums Grass may pretend to have alse much more Grass designed to them as will keep a Horse and two Kine or 20. lib. Hattoun Reporter Hamilton Clerk D. 257. Binning contra Brotherstanes eod die ALexander Binning by Contract of Marriage with Margaret Trotter was obliged to resign a Tenement of Land in Favours of himself and his Wife in Liferent and the Heirs of the Marriage in Fie and accordingly Resignation being made Infeftment was taken to him and his Wife and their Heirs foresaid Thereafter the said Margaret having deceased there being only one Daughter of the said Marriage Margaret Binning the said Alexander married a second Wife and did oblige himself to provide the Heirs of that Marriage to 10000 merks And thereafter did induce the said Margaret his Daughter of the first Marriage after her Minority to give a Bond obliging her to resign the abovementioned Tenement to which she was to succeed as Heir of Provision to her Father in favours of her self and the Heirs of her own Body which failÈiening in favous of Alexander Binning her Brother of the second Marriage and his Heirs whatsomever and to do no Deed to prejudge him anent the Succession The said Margaret Binning being thereafter Infeft as Heir of Provision to her said Father in the said Tenement did by Contract of Marriage with William Brotherstanes oblige her self to Resign the said Tenement in favours of her self and the said William and the Heirs of the Marriage whilks FailÈieing his Heirs whatsomever and upon the said Resignation she and her Husband were Infeft Thereafter the said Alexander Binning her Brother did obtain a Decreet against the said Margaret and her Husband for implement of the said Bond and for granting a Procuratory of Resignation for resigning of the said Tenement conform to the said Bond in favours of the said Margaret her self and the Heirs of her Body whilks FailÈieing in favours of the said Alexander And in obedience to the said Decreet the said Margaret and her Husband did resign the said Tenement and Infeftment was taken to the said Margaret and the Heirs of her Body whilks FailÈieing to the said Alexander After the said Margaret her decease the said Alexander did obtain Decreet against the Tennents of the said Tenement for Maills and Duties which being Suspended by the said William Brotherstanes and turned in a Lybel It was Alledged for him that he ought to be preferred being Infeft long before the Pursuer and 7. years in possession Whereunto It was Replyed That the Defender was denuded of any Right that he had by the Infeftment foresaid in favours of the said Margaret and her Heirs of Provision foresaid and that the Pursuer had thereby Right as Heir of Provision to her To which It was Duplyed That being incarcerat upon the said Decreet against him and his Wife for Implement he had resigned for Obedience as Husband and Authorizing his Wife but did not intend nor could not be decerned to denude himself of his own Right which he had for so Onerous a Cause by his Contract of Marriage The Lords having considered the Procuratory of Resignation granted by the Defenders Wife and himself did Find that he had granted the same not only for Obedience and for his Interest as Husband but for his own Interest and as taking burden for his Wife and so did denude himself of any Right that he had in favours of his Wife and the Pursuer as Heir of Provision And therefore preferred the said Alexander Upon the Debate It was agitate amongst the Lords whether such Clauses in TailÈies viz. That no deeds should be done in prejudice of the Heirs of TailÈie and Provision and their Succession do import that the Granter of such Obligements should not have power to dispose of the Land that is TailÈied and have that liberty which is inherent to Dominium Or if it should import only that they cannot break the TailÈie or provide the Lands in TailÈie to other Heirs The President was of Opinion that the Fiar could not dispone nor do any other Deed And that the said Clause was not restricted to the altering or breaking of the TailÈie But this point was not decided D. 258. Ratraw contra _____ 16. February 1675. AN Appearand Heir having upon an Exhibition pursued by him to the effect he might advise whether he would be Heir obtained the Writes to be exhibited in the Clerks Hands did thereafter upon a Bill desire the samen to be delivered pretending that he had use for the Writes for serving himself Heir and no other person could have any Interest for keeping them but himself The Lords granted the desire of the Bill Albeit some of the Lords thought that the Writes could not be delivered to him unless he were Heir but only such as he should have use of for his Service upon a Ticket to the Clerk to redeliver the same if he should not be served Heir within a certain time And that the Creditors had Interest seing the Appearand Heir if he should resolve not to be Heir might embazle and put the Writes out of the way in prejudice of Comprysers D. 259. Hay contra Gray 4. June 1675. A Merchant having given a Commission to a Skipper to carry a parcel of Salmond to Bourdeaux and upon the Sale of the same there to bring home Wines and Prunes pursued the said Skipper for the said Salmond and profite thereof and referred the Lybel to the Skippers Oath And the Defender having qualified his Oath in these Terms viz. That being upon his Voyage to France he was forced to go in to Holland by Storm of Weather So that he could not go to Bourdeaux And that he was forced to sell the Salmond in Holland and with the price of the same did buy a parcel of Cards and other Goods mentioned in his Oath for the Pursuers use and having embarqued
Superiority and the Libel being only founded upon the Pursuers Right as Superior the Defender was in bona fide and could not enter nor be lyable for the full avail until the Question was cleared by production of the said Assignation and therefore could not be lyable until the same was produced The Lords As to the first Reason Found That after the intention of the Declarator of Non-entry at the Instance of the Party having Right the Defenders are lyable in the full avail and that the real conclusion of poinding the Ground for the same may be sustained seing the Ground may be poinded for a Rent liquidate as it was in this Case and when Lands are not retoured the Pursuer even before Declarator may crave Right to the Rents As to the Second The Lords were all clear that the Defender was not lyable for the full avail but after production of the Title whereupon the Pursute is sustained But it being moved that the Defenders having proponed the said Alledgance before the same was repelled and decreet given out for the full avail after intention of the Cause some of the Lords were of the Opinion that there was now no Remedy Others thought That there being a clear iniquity and prejudice to the Party and the Lords being convinced of the same they ought to do justice to the party And the question being brought before them upon Suspension ex incontinenti and not ex intervallo the Sentence non transivit in rem judicatam Whereupon some heat having arisen among the Lords while some did plead the Credit of the House and the Security of the People that the Decreets of the Lords in foro should be an ultimate and unquestionable Decision and others Thought and did represent that the Honour of the House and Interest and Security of the People consists in this that Justice should be done and no evident Iniquity should be without Remedy Especially where a Decreet has not taken effect and become res judicata but is drawn in question immediatly by a Suspension The Lords did demur and decided not that Point Castlehil Reporter Gibson Clerk D. 274. Hamilton of Munkland contra _____ Maxuel eod die UPon the Report of Redford betwixt Hamilton of Munkland and _____ Maxuel The Lords Found That a Debt due by a Person who had disponed his Land upon the account that a Manse was built and that he was resting his Proportion of the Charges is not debitum Fundi Hamilton Clerk D. 275. The Colledge of Aberdeen contra the Town of Aberdeen 24. June 1675. IN the Case abovementioned of the Colledge against the Town of Aberdeen The Lords having heard again a Debate in praesentia Did adhere to what they had Found formerly and did Declare Jus eligendi of a Bibliothecare to pertain to the Colledge Vide 17. June 1675. inter eosdem D. 276. Earl of Lauderdale contra Lady and Lord Yester 25. June 1675. THE Duke of Lauderdale having settled upon the Lady Yester his Daughter his Estate and thereafter by Contract of Marriage betwixt the said Lady and my Lord Yester containing a Procuratory of Resignation whereupon Infeftment followed the said Estate is disponed and resigned by her with consent of her Father and him for his Interest in favours of the said Lady and the Heirs of her Body of that Marriage and these failÈiening of any other Marriage With Provisions contained in the said Procuratory And in special that the said Lands should be redeemable by the Earl upon a Rose-noble and that upon an Order used the said Right in Favors of the Lady and her foresaids should be void and two other Provisions in Case of Redemption viz. 1mo That in Case the Duke of Lauderdale should think fit to redeem that the Duke and his Heirs should be lyable and obliged to pay likeas they bind themselves by the said Provision to pay to the Lady and her foresaids besides the Tocher 7000. lib. sterl at the first Term after the Dukes decease And 2do That whereas by the said Contract the Lady if the Estate had not been redeemed was obliged to pay all her Fathers Debts and Legacies she should be free of the same in case of Redemption Which Provisions are contained in the Infeftments The Duke having used an Order and having intented thereupon a Declarator of Redemption concluding that the Lands should be declared lawfully redeemed and that his Daughter should be decerned to denude her self and to grant a Procuratory for Resigning since she was infeft by publick Infeftment It was Alledged That as to that Conclusion that she should renounce there was no Warrand for the same seing there was not a Reversion in these Terms that she should grant the Lands orderly redeemed and renounce in which Terms Reversions which are pacta de retrovendendo are ordinarly conceived but that the Reversion whereupon the Order is used is only a Provision contained in the said Contract of the Tenor foresaid with a resolutive clause in case of Redemption which imports no Obligement upon the Lady nor pactum de retrovendendo but only Jus Retractus and a Faculty and Power to the Father to Redeem and in case of Redemption the expiring and Nullity of the Right 2. It was Alledged That tho the Lady were to Renounce her Renounciation ought to be qualified and burdened with the provisions contained in her Right and in special with the foresaid provision as to the secureing to her 7000. lib. Sterl and the other Provision foresaid for securing her relief of the Debts It was Replyed That as to the said first Alledgance that inest in all Contracts bearing Reversions whether in the formal Terms of a Reversion or Provisions upon the matter importing a Reversion and ex stylo all Decreets of Redemption do contain the said Decerniture to Renounce And the Duke being denuded in favours of his Daughter by publick Infeftment the habilis modus to return again to his Right upon Redemption is upon the Resignation As to the 2d It was Answered That the said Provisions are not in the Reversion and amount only to a personal obligement upon the Duke and his Heirs but not to be a real burden and incumberance upon the Right As to Debts It was Answered That there needs no other security for the Lady her relief of the same seing she was to be lyable thereto in contemplation of the Right if it should stand effectual in her Person And it s provided in case of Redemption she should be free thereof It was Duplyed as to the said provisions That the same being in the body of the Procuratory and Infeftment are real and they are insert unico contextu with the provision that the Lands shall be redeemable and doe qualifie the same And that notwithstanding that it be provided That in case of Redemption she should not be lyable to the Debts yet she may be in hazard to be overtaken as Successor Titulo Lucrativo In respect by the said Right it
is provided that in case of Redemption the said 7000 lib. should be given to her and her foresaids which being a provision introduced in her favours and in effect in lieu of the Estate and being so great may fix upon her a Passive Title as having gotten by her Father beside her Tocher so great a Sum which is not payable to her Husband but to her and her foresaids and therefore could not Renounce but with the burden of the said provision for her Relief The Lords Found That she ought to Renounce Reserving to her the foresaid provision as Accords Castlehill Reporter Gibson Clerk D. 277. Tutor to the Laird of Aitons Daughter eod die THE Tutor to the Daughter of the deceast Laird of Ayton having craved by a Bill that he might be warranted by an Order of the Lords to set the Pupils Lands for less Duties than were payed formerly seing the former Duty could not be gotten The Lords Tho they had granted the like desire in favours of other persons upon Bills thought upon better consideration that it was fit to refuse the said Bill seing upon such pretences Minors may be wronged by their Tutors Authority and the Lords have only a Jurisdictio contentiosa in relation to Processes or questions depending betwixt Parties but not a voluntar Jurisdiction or power in relation to Administration of private Estates And if the Tutors Deed in setting pupils Lands were warrantable the Law would secure him And therefore left him to do as he will be answerable Redford Reporter D. 278. _____ contra _____ eod die UPon a Report made to the Lords concerning a Decreet of the Commissars which was questioned upon Iniquity because it being urged that Caution should be Found in an Improbation the Commissar did not Order the Party to find Caution It was Debated amongst the Lords Whether Caution should be Found or Money should be consigned alsewell in Actions as upon Exceptions in Improbations And some were of the Opinion that Caution or Consignation should be in all questions of Improbation Whether by way of Exception or Action conform to the Act of Parliament Q. Mary 7. Parl. Cap. 62. And some of the Lords were of the Opinion that the Law being clear to that purpose Consignation should be wherever such Questions fall out either by way of Action or Exception But the contrary was asserted by others and they pretended Custom but nothing was instanced to verify the custom and tho it were it ought not to derogate to so clear a Law upon so good Grounds The Lords did not decide this point at this time D. 279. _____ contra _____ eod die UPon a Report made to the Lords concerning an Advocation upon that reason that there was a Competition in the case upon double Rights It was debated among the Lords Whether the cause being undoubtedly competent before the Inferior Judge the pretence that there was a competition of double Rights should be a Relevant Ground of Advocation And some of the Lords were of Opinion that in the general to Advocate upon that Reason it were hard seing Inferior Judges their Jurisdiction as to Causes competent before them is founded upon their Rights so that they have alse good Right to the same as to any other property And in Removings and Actions for Maills and Duties and others such real Actions when a Defence is founded upon a Right or when Parties compear for their Interest and produce Rights it may alwayes be pretended that the question is anent double Rights so that the Jurisdiction of Inferior Judges may be altogether evacuated And the Lords who have scarce time to decide Causes that are proper before them should be cumbered with Processes that may and ought to be determined by an Inferior Judge contrar to the Acts of Parliament and in special the 39 Act of Q. Mary her 6th Parl. And the 8th Act of His Majesties 1st Parl. 3. Sess Discharging the Advocation of Causes whereunto Inferior Judges are expresly appointed Judges But if it should be represented and appear that there is intricacie in such Causes wherein there may be question of double Rights the Lords in that case may Advocate But upon the pretence of double Rights as to which it may be there is no difficulty there ought to be no Advocation Yet it was urged by _____ that the Lords were in use to pass Advocations upon the reason foresaid And albeit the pretence of custome not being verified and tho verified being against Law ought not to be put in the ballance with express Laws founded upon good Reason and Common Law yet the Bill was past Redford Reporter D. 280. Gilchrist contra Murray 26. June 1675. IN a Process for payment of a Sum due by the Defender the Lybel being referred to his Oath and he having declared with a quality viz. That as he was Debitor so he had made payment partly in Money and partly in Commodities and Ware The Lords Upon Advising of the Oath Found That the same not being special as to the quality of Payment viz. How much was payed in Money and how much in Goods nor being special as to the quantity of the several Goods did not admit the same but if it were made special as to Money payed by him it would be sustained pro tanto And as to the delivery of Goods in satisfaction of the Debt It resolved in an Exception and ought to be proven Hamilton Clerk D. 281. Livingston contra Garner eod die A Bond being granted for payment of a Sum and thereupon the Granter having suspended in his own time and a Decreet of Suspension being recovered in his favours after his death his Son being of the same Name was Charged Denounced and taken with Caption for the same Debt The Lords upon a Bill Did Find That the Son ought to be free of the said Debt and in regard of the Chargers trincating and fraudful Practice they modified 40. lib. to be payed by him the one half to the Partie the other half to the Poors Box. Gibson Clerk D. 282. Langlands Supplicant eod die A Bankrupt having obtained a Bonorum by a Bill desired the Lords to dispense with his wearing the Habit in respect of an Attestation of two Persons that he had become irresponsal upon the account of Cautionrie and other Occasions mentioned therein which the Lords did Albeit some of their Number were of another Opinion and did urge that by the Act of Parliament such Persons being infamous and the Lords by an Act of Sederunt having Ordained that they should wear the Habit as is the Custom in all other Nations that they may be known to be such Persons the Lords neither could nor ought to dispence with express Laws and Statutes and that no respect ought to be had to the Attestation being emitted by privat Persons having no Authority and not cited nor sworn to that purpose and the pretence contained in the Attestation was most irrelevant Gibson Clerk D. 283. Birnie
contra Montgomerie 29. June 1675. A Pursute for making up the Tenor of a Comprising was sustained in respect the Adminicles were most pregnant and in special the Executiones were yet extant and entire Monro Clerk _____ It is thought that much Cautione and tenderness should be used in Processes of the Nature forsaid for proving the Tenor of Compriseings seing Compriseings are to be considered either as Decreets or as Executions and in effect they are both upon the matter In respect the Messenger Decerns and Adjudges and Dispones the Lands and others comprised and therefore the same ought to be subscribed both by the Messenger who in subsidium doth that which the Partie ought to do and doth dispone his Estate in satisfaction of his Debt and by the Clerk of the Compriseing as a Decreet and the Tenor of Decreets cannot be proven but by Extracts And a Comprysing being as said is Processus executivus and ultimate execution it ought not to be proven but per relationem Nuncij and execution under the Messengers hands And it were hard that executiones should be made up by witnesses and probation of the Tenor Seing there may be a nullity in the same if they were extant And tho witnesses may remember they had seen executions they can hardly remember upon the precise tenor of all the words of the same And if the tenor of the executions might be made up there should be no security Seing Prescription which is the greatest Security of the People may be evacuated upon pretence that there was an interruption by the execution of a Summonds but that the same being lost is made up by proving the Tenor and by an Act of Parliment K. Jam. 6. Par. 6. cap. 94. It s Ordained That the Tenor of Letters of Horning and Executions thereof is not probable by Witnesses And there is parity if not more Reason as to Comprisings whereby the greatest Estates may be taken away by a Decreet for proving the Tenor. D. 284. Hall contra Murray 30. June 1675. ARrestment being upon a Decreet and the said Decreet being thereafter turned in a Lybel The Lords Found That the Decreet ceased to be a Sentence and the Arrestment thereupon is now of the nature of an Arrestment upon a Dependence and may be loosed Gibson Clerk D. 285. Dunmure contra Lutfoot eod die THE Lords in an Improbation Found as they had done formerly in diverse Cases That an Extract out of the Books of an Inferior Court does not satisfie the Production the question being of a Write registrate in the Books of the Canongate Newbyth Reporter D. 286. Stewart contra Riddoch eod die JAmes Stewart of Aberlednoch having obtained a Decreet Cognitions Causae against John Riddoch for implement of a Disposition granted by David Riddoch his Grand-father and thereupon having also obtained a Decreet of Adjudication the same was stopt upon a Bill given in by _____ Campbel of Tarririck pretending that he had a Right to a Contract of Mariage betwixt Alexander Riddoch and his wife as assigney constitute by the said Mr. Alexander in whose favours the Granter of the Disposition to Stewart was obliged by the said Contract to dispone to him the same Lands And the Assignation granted by the said Alexander Riddoch to the said Campbel being questioned as false The Lords thought fit to hear both Parties on their several Adjudications reserving Improbation of the said Assignation and with this Declaration that if the said Assignation should be improven the Decreet and Adjudication upon the same should fall Because there was a Competition in Diligence The Lords did wave the Debates in the Improbation being most as to that Point who should abide by the said Assignation as true seing the Assigney Campbel declared that his Name was filled up in the same without his Knowledge and was not concerned to abide by the same and Mr. John Drummond of Megginsh compearing as having a compleat Warrand and Commission from the said Mr. Alexander Riddoch who was in Barbadoes to prosecute the said Action which had been intented in Campbel's Name offered to abide by the said Assignation only as a Factor Some of the Lords thought that a Write being questioned as false there should be some person to abide by the same upon their hazard simply and not with such qualities seing the consequence and hazard of persons that abide by Writes questioned upon falsehood if the same should be improven is the great bulwark and security of the people against falsehood which doth encrease daily But this point was not decided D. 287. Clerk contra Steuart eod die A Husband by his Contract of Marriage having got the Right of the Fie of a Tenement of Land settled upon him his Wife having resigned the same for Infeftment to him and her and the Heirs of the Marriage whilks failÈiening his Heirs He and his Wife did thereafter enter in a Contract with another Sister of his Wifes who had Right to the equal half of the said Tenement as Heir portioner with her Sister by which Contract there was a mutual TailÈie with consent of the Husband and the Right of Fie that by the former Contract was settled upon her Husband as said is was disponed to the Wife in sua far as both the Sisters with consent of their Husbands were obliged to resign their Respective parts in favours of their Husbands and themselves in Liferent and the Heirs of the Marriage in Fie whilks FailÈieing in favours of the Wifes Heirs Which Contract was questioned by a Reduction at the instance of a Creditor of the Husbands upon that reason that the said Right of Fie granted by the said Contract betwixt the Husband and the Wife and her Sister was in defraud of the Husbands Creditors and null by the Act of Parliament 1621. In sua far as the Husband had a Fie of the said Tenement by the Contract of Marriage betwixt him and his Wife which might have been affected with Execution at the instance of his Creditors and the said Fie was given by the said late Contract to the Wife so that the Husband had only a Liferent In this Process It was Alledged 1. That the Act of Parliament did militate only in the case of Dyvors and Dispositions granted by them And 2. That the said Act of Parliament doth only rescind Alienations that are made without true just and necessary Causes and that the said Contract betwixt the Husband and his Wife and her Sister was made for a true and just Cause and the Fie of the said Tenement which the Debitor had was given away in respect of the Obligements of the said Contract in favours of the Husband the Pursuers Debitor which was as equal as to advantages for the Pursuers Debitor as they were for the other party seing both the Sisters their parts of the Tenement were provided in the same manner to the Respective Wives and their Husbands and the Heirs of the Marriage whilks failÈiening the Wifes Heirs
the Trust mentioned in the Bill was only to him as quilibet not as an Advocate D. 291. _____ contra _____ eod die A Discharge alledged granted by a Minister to one of the Heretors of the Paroch of a part of his Stipend was quarrelled as false and did appear to be vitiate in a process at the instance of the Minister for his Stipend And the user of the same being urged to abide by it did offer to abide by it with a quality viz. That the payment not being made by the Heretor himself but by his Tennent who took the said Discharge in the Heretors Name he did abide by the same a Write truely delivered by the Tennent The Lords did not sustain the said quality Unless the Heretor would produce the Tennent and abide by the same as being truely subscribed and not vitiate which the Tennent did D. 292. Key contra Her Creditors eod die THE Pursuer of a Bonorum having given her Oath that there was no fraudulent Deed done since the Disposition whereby the Pursuer cesserat and Disponed omnia bona It was urged That the Pursuer should declare also that no fraudulent Deed had been done by her to defraud the Creditors whether before or after the Disposition which was refused by the Lords in respect that the ordinary Oath given by such Pursuers did run in the Terms foresaid that they had made no fraudulent Right since the subscribing of the Disposition Some of the Lords were of Opinion that the Pursuer should have declared that she had done no fraudulent Deed at any time seing cessio bonorum is an extraordinary remedy indulged to persons who are become lapsi upon some extraordinary occasion wlthout their own fault or fraud and upon that account deserved favour which was not to be given to fraudatores who at any time had taken indirect wayes to prejudge their Creditors And if the Pursuer the very day before she subscribed the Cession and Disposition had made an anterior Right to prejudge her Creditors it were most inconvenient and absurd that her Oath should only be received in these Terms that she had made no Disposition or fraudulent Deed since the granting of the Disposition in favours of the Creditors And as to the pretence of custom and the conception of the Oath it ought not to be respected seing it cannot be said that the Oath of Bankrupts in the Terms that it is now urged was desired and refused and if there had been any defect in the conception of the Oath it ought to be helped D. 293. Bairdner contra ColÈier eod die IN a Process for abstracted Multures The time of the advising of the Cause these points were debated amongst the Lords viz. Whether or not the Right of a Miln being Feued by the Abbot in these Terms cum astrictis multuris did import astriction of all the Grains growing so that these that were astricted should be Lyable to bring all the Corns that grew upon the Lands to the Miln and in case any such be sold the Heretors and their Tennents should be Lyable for astricted Multures And 2. There being Decreets recovered at the instance of the Feuar of the Miln against the Feuars of the Lands for abstracted Multures of grana crescentia if the same should import Astriction as to all such Granes tho neither the Right of the Feuar of the Miln nor of the Heretors of the Lands be express of grana crescentia but only of the Terms foresaid cum astrictis multuris Some were of the Opinion as to the first point That a Feu of a Miln in the Terms foresaid cum astrictis multuris should import nothing else but that they that were within the sucken and astriction should be lyable only to grind at the Miln all such Corns that they should have need and occasion to grind Seing Thirlages are a most odious servitude and ought to be taken strictly And Multures being Moliturae and due for grinding they ought to be understood only in the case of Corns which the Feuers do bring to the Miln to grind or which they have need and use to grind and yet abstract and go to other Milns Otherwayes there should be no difference betwixt the Astriction of grana crescentia and an ordinary astriction 2. The case in question was of a Miln Feued by the Abbot of Culross and of Lands likewayes Feued by himself after the Feu of the Miln and the time of the Feu of the Miln Lands being the Abbots own either in mainsing or set to Tennents It cannot be thought that the Astriction was in other terms than such as Tennents are in use to be astricted to their Masters Miln and beside the Teind and Seed and the Duty payable to the Master which being payable to the Abbot the time of the Feu of the Miln was free of astriction the Tennent having the residue of the Rent for entertaining of his Family and for defraying the Charges of the Labouring and Servants Fies and other necessar Expences which could not be defrayed otherwayes but by selling some of the Corns growing It cannot be conceived that the Abbot or any other Master would astrict his Tennents in these Terms that they should be lyable for dry Multures except it were exprest and that the Astriction had been granorum crescentium Yet the Lords did demurr as to this point In respect it was vehemently urged by _____ that the Astrictions in the Terms foresaid ought to be understood of grana crescentia otherwayes it should be in the power of these who are astricted to sell all their Corns and to buy Meal for their Family and so to elude the Thirlage Albeit It was Answered That it was not to be presumed that Feuers or Tennents would do so and if they did they ought to be lyable for abstracted Multures effeirand to such quantities as were necessary and they were in use to grind for their Families Another point was Agitated and debate amongst the Lords viz. That the said Decreets could not be obtruded to the Defender seing neither he nor his Author was called to the same and res was inter alios acta But the Lords did not decide these points but recommended to some of their number to endeavour to settle the Parties D. 294. Oliphant contra _____ 7. July 1675. _____ Oliphant desired an Advocation from the Town _____ Court upon these Reasons viz. 1. That the Lybel was to be proven by the Defenders Oath which he was to qualifie And 2. That the Defender was to prove a Defence by the Pursuers Sons Oath who was out of the Country and the Town could not give a Commission for taking his Oath Both which Reasons were thought not to be Relevant and the Advocation refused In respect all Judges ought to receive Oaths with intrinsick qualities and Commissions may be direct by any competent Judge D. 295. Lord Halcartoun contra Robison July 1675. THE deceast Lord Halcartoun being oblidged by
from the Pursuer in the mean time a Piece which the Pursuer was to loose in case the Defender should not be married The Lords sustained the Pursute Tho some of their Number were of the opinion that sponsiones ludicrae of the Nature foresaid ought not to be allowed Strathurd Reporter D. 328. Sir Patrick Nisbet contra Hamilton eod die AFter the Lands of a Debitor were denounced to be comprysed a voluntar Right was granted by him of an Annualrent out of the samen Lands for an Onerous Cause whereupon the Annualrenter was infeft by a publick Infeftment before any Infeftment upon the Comprising and there being upon the foresaid Rights a Competition betwixt the Compriser and the Annualrenter It was Alledged That after the Lands were denounced the Debitor could not give a voluntar Right of the same being litigious and affected with the Denounciation And on the other part it was debated that the Debitor not being inhibite might give a voluntar Right for an Onerous Cause and the first consummate Right ought to be preferred The Lords In respect it was pretended there were contrary Decisions Thought fitt not to give Answer until these should be considered D. 329. Park contra Rysly eod die A Tennent having sold Nine Score of Sheep and the samen being caryed off the Roum where he was Tennent the Master of the Ground by Warrand of the Sheriff as having therein the Right and Interest of a tacite Hypotheck did seise upon the same The Lords Found That neither the Master nor the Sheriff without citing the Partie could seise upon the said Goods not being upon the Masters Ground nor give Warrand to that purpose And yet seing quaevis causa excusat a spolio they restricted the Pursute to wrongous Intromission and allowed to the Master his Defence for Retention of the Goods until he should be payed of his Years Duty Newbyth Reporter Hamilton Clerk D. 330. _____ contra _____ eod die THE Right of a Wadset being comprised the Compriser did require for the Sum due upon the Wadset and pursued the Representatives of the Debitor It was Alledged for the Defender That he could not pay the Money unless the Pursuer should put the Defender in Possession of the Lands It was Answered That the Pursuer not having possession himself and having loosed the Wadset by Requisition he could not put the Defender in possession and the Defender might have taken possession by his own Right and it was enough that he was content to renounce the Wadset especially seing neither the Pursuer nor his Author had done any Deed to put the Defenders in worse case as to Possession and the Possession was apprehended and still continued by an Anterior Compryser and the Pursuer had obtained a Declarator finding the said Comprysing to be satisfyed and extinct so that the Defenders might easily recover Possession The Lords notwithstanding Found the Alledgeance Relevant and that the Pursuers should put the Defenders in possession D. 331. Grant contray Barclay 10. February 1676. IN a pursute upon a Passive Title of Behaving It was Alledged that before intention of the cause the Defender had gotten a Gift of the Defuncts Escheat The Lords Upon Debate amongst themselves Found that albeit the Gift was not declared yet it purged the Defenders vitious Intromission being before the intention of the Cause and that the Defender having the Goods in his hands needed not a Declarator This seemed hard to some of the Lords In respect by our Custom there being two wayes adeundi haereditatem viz. either by a Service or by Intromission was the Defuncts Goods that were in his possession The Appearand Heir by medling with the Goods gerit se pro haerede And so by his Intromission having declared his intention alse fully as if he were served Heir semel haeres cannot cease to be Heir there being Jus quaesitum to the Creditors as to a Passive Title against him 2. The pretence that the Defender is in the same case as if there were an Executor confirmed before the intention of the Cause is of no weight Seing the Defence upon the confirmation is sustained because there is a person against whom the Creditors may have Action which is not in the Case of a Donator 3. A Donator has no Right without a general Declarator And tho when the Donator has the Goods in his hand there needs not a special Declarator yet for declaring his Right there must be a general one 4. As to that pretence that the Defender cannot be Lyable as Intrometter with the Defuncts Goods because they belong to the Fisk and not to him It is Answered That the Goods being in the possession of the Defunct the Appearand Heir thereafter medleing with the same eo ipso adit and the Creditors ought not to be put to debate being he is in Possession And if a person should be served special Heir to the Defunct tho the Defuncts Right were reduced and the Haereditas could be inanis as to the benefite yet the Heir would be still Lyable Mr. Thomas Hay Clerk D. 332. Mcquail contra Mcmillan eod die A Pursute being intented against the Wife as universal Intrometter to a Defunct and her Husband pro interesse and the Wife having deceased It was Found that the Husband should not Lyable unless it were proven that he had Intromission with the same Goods upon the Intromission with which the former pursute was intented against his Wife This was not without difficulty And upon debate amongst the Lords tho it was not the present case yet the Lords enclined to be of the Opinâ—on that the Husband having gotten a Tocher ad sustinenda onera Matrimonij If the Wife had any other Estate whereunto the Husband had Right Jure Mariti he should Lyable in quantum locupletior Nevoy Reporter Robert Hamilton Clerk D. 333. Alexander Abernethie contra Arthur Forbes eod die THE Lord Saltoun having given a Bond of 20000 Merks to Alexander Abernathie upon account of his Service and of the Service done by his Brother James Abernathie Thereafter the said Lord Saltoun did grant a Bond making mention that the Lands of Auchincleuch belonged to him and his Authors and that the said Alexander had been Instrumental to obtain a Reduction of the Rights of the Estate of Salton to the behoof of the said Lord Salton and therefore obligeing my Lord Saltoun to Infeft him in the said Lands The Lords Found That the said Bond being after the former and for the Causes foresaid and having no Relation to the said former Bond of 20000 Merks that it should be in satisfaction of the same Could not be interpret to be in satisfaction thereof And the Brockard Debitor non praesumitur donare does not militate in this Case Seing the Lord Salton was in a capacity to give both the said Bonds by way of Donation and the question was not betwixt the said Alexander and the Creditor but betwixt another person to whom thereafter he had
after Circumduction of the said Terms and that such Certifications are not only the great Surety of these who obtain the same but of these who obtain Right from them conceiving themselves to be secured with such Certifications Yet the President and others of the Lords enclined to repone Alexander against the Certification the Writes being produced tho it was urged that beside the Security and Interest of People as said is it was to be considered that in this Case there were Advantages pretended to on both hands viz. by Alexander of an expired Comprysing and by the Doctor of the said Certification and that Alexander and his Authors by vertue of their Comprysing had been many years in Possession tho there was probability the Comprysing was satisfyed and it seemed to be equitable that the Doctor should have a Decreet of Removing and should give a Reversion to Alexander limited to such a time as the Lords should find just upon payment of what should be resting and unsatisfied by his and his Authors Intromission if there there were any part of the Debt yet resting But this Point was not decided the Lords having recommended to some of their Number to endeavour an Accommodation betwixt the Parties D. 340. Abercrombie contra Acheson and Livington eod die A Taverner after she had removed from her Masters Service and was Marryed was pursued to Compt and Reckon for Ale and Wine which the Pursuer offered to prove was layed in in his Cellars The Lords Found That the Pursuer ought to Lybel and prove that the Debt was yet Resting Seing it was to be presumed that Servants of that quality did Compt Weekly with their Masters and the Pursuer would not have suffered the Defender to go out from his Service before she had Compted and made payment And it appeared that there had been former Decisions to that purpose Lord Justice Clerk Reporter D. 341. Dundass contra Turnbul and other Creditors to Whitehead of Park eod die IN a Competition betwixt an Infeftment of Annualrent and a posterior Infeftment upon a Comprysing the Lords enclined to find that the Infeftment of Annualrent was made publick by a pursute of poinding the Ground before the Infeftment upon the Comprysing But some of the Lords not being clear the case was not decided Gosford Reporter D. 342. Wauch contra Jamison eod die DOctor Bonar being to go out of the Country did Dispone a Right of Lands and of an Annualrent to Mr. John Smith his near Relation upon a Backbond granted by the said Mr. John bearing that the said Right was granted partly in Trust and partly for surety to the said Mr. John for Sums due for the time to him by Bonar and of such Sums as Smith should advance to Bonar or his Creditors And that the said Right should be Redeemable by Bonar or his Sister if she should survive him by payment of the foresaid Sums Thereafter the Doctor did grant a Bond of 5000 Merks to the said Mr. John Smith bearing no Relation as to the said surety And bearing as to the conception a simple Moveable Bond to the said Mr. John his Heirs and Executors And after the said Mr. John Smiths decease there being a Competition betwixt Doctor Jamison his Heir and the Executor as to the said Sum of 5000. Merks And the question being whether it should be thought to be Heretable in respect of the said surety or Moveable In respect of the conception of the said Bond. The Lords did consider the case as of great moment as to the consequence and Interest of the People and upon debate at the Barr in praesentia and among themselves they came to these Resolutions viz. That it was consistent that a Sum should be Moveable and yet that it should be secured by an Heretable Suretie as in the case of bygone Annualrents due upon Infeftments of Annualrent and of bygone Feu-duties or Taxations the same being unquestionably Moveable ex sua natura And yet there being a real surety for the same and a real Action for poinding the Ground even competent to Executors And likewayes in the case of Wadsets loosed by Requisition and bearing a provision that notwithstanding of Requisition the real Right should stand unprejudged until payment in which case the Sum would be Movable tho still secured by Infeftment 2. That as to these qualities of Moveable or Heretable in relation to the Interest of Succession and Question betwixt Heirs and Executors the design of the Creditor animus was to be considered principally And if Debts either by the conception were Heretable ab initio or an Heretable surety taken thereafter for Moveable Debts as a Wadset or Comprysing It was to be presumed that the Creditor intended to alter the quality of the Sums and that they should belong to his Heirs but if Creditors should take an Heretable surety without any intention to alter the quality of the Debt or that the same should ly as bonum stabile and fixt the Debt continues still Moveable As v. g. If a Creditor having done exact Diligence should take a Gift of Liferent Escheat or Recognition upon a Back-bond that he should be satisfied in the first place of his Debt Or if in a Suspension a Disposition of the Debitors Estate should be consigned because he cannot find Caution Or in the case of Bonorums a Disposition of an Heretable Estate should be made in favours of his Creditors Or if a Debitor should Dispone his Estate in favours of a confident person with the burden of his Debts In these and the like Cases Because the Creditor does not intend that his Money should ly as an Heretable Debt but upon the contrary has done and is about to doe all possible Diligence for recovery of the same the Debt continues still Movable notwithstanding of the said accessory and extrinsick surety 3. Bonds being taken after a general Surety in the Terms foresaid for Debts to be advanced may be Moveable notwithstanding of such Surety if it appear that the Creditor intended it should be such As if such supervenient Bonds should be taken to Executors Excluding Heirs Especially when such general Sureties for Sums as are to be afteradvanced are not dispositive but by way of Provision containing Back-bonds and not of the Right it self viz. That the Receiver of the Right should not be lyable to denude until he get payment of the Sums that should be due to him at any time thereafter In which case it appears that he has not a positive Right and Surety for the said Sum but an Interest and exception of Retention The Lords in end In the foresaid Cause Found that the said Bond of 5000 M. In sua far as it should be made appear to be made up of the Sum mentioned in the Back-bond that was due to Smith at that time should belong to the Heir an as Heretable Sum In respect ab initio the said Surety was granted for the same But as to the residue of the
both upon the said Charter of the Miln and the said Decreet It was Alledged That the Defenders Right bears no Astriction And as to the said Charter it must be understood of the Multures belonging to the Abbot and of the Lands pertaining to or holden of him and that the Lands of Redmyre do not hold of the Abbot but of the Laird of Drum who holds the same of the King and that the Abbot could not astrict any Land but his own and as to the said Decreet that it was a latent Decreet in absence against the Defenders Author and that notwithstanding thereof the defender and his Authors had been in Possession of Liberty in swa far as tho they came sometimes to the Pursuers Miln being nearest and most convenient and the Multure being alse easie as at any other Miln yet the going to a Miln being facultatis wherein Astriction cannot be shown they had used and were in Possession of the said Liberty to go to other Milns It appeared that the same Defence being proponed in the foresaid Decreet 1597. for these who were compearing was Repelled In respect the said Charter was so Ancient and was so expresly of the Multures of the hail Parish And after so long a time it was not necessar to debate the Abbots Power to astrict the said whole Parish And the foresaid Charter does bear that the Abbot did give to the Feuer the said Miln in the same manner and alse freely as one Vmfridus had the said Miln and Multures by a Grant and Right from K. William And it was presumable that the said King who might have thirled the said Lands holden of himself did give the Miln and Multures The said Decreet likewayes 1597. did mention the Production of a Retour before the Sheriff and the verdict of an Inquest concerning the said Multures The Lords having among themselves debated and considered that the said Decreet 1597 tho in absence was a valide Decreet whereby the Defenders Author is decerned in all time coming his Tennents Cottars and Successors to pay the Multure thereinmentioned And that the said Decreet was a standing Decreet by the space of 40 years and never questioned there was no necessity to debate upon any other Grounds than that the Pursuer had thereby a Right to the said Multures Seing the Defenders did not deny that they were in use to come to the Miln but pretend a Liberty and use to go likeways to other Milns And it cannot be said that he had the said Liberty the contrare appearing by the said Decreet which never was questioned and now cannot be questioned being prescrived and yet the Lords AssoilÈied fra Bygones and Services not contained in the said Decreet It being Alledged that the Farm should not be thirled The Lords Found That the growing Corns being Astricted by the said Decreet there ought to be an exception but of Teind and Seed And that the Tennents were Lyable for such Corns as belonged to themselves and the Master for his Farm Actores Sinclair and Lermonth c. for Pittarro alteri for the Defender Lockheart and Falconer Monro Clerk In praesentia D. 352. Stenhouse contra The Heretors of Tweedmoor eod die THE Laird of Stenhouse his Lands being designed for a Gleb pursued some of the Heretors within the Parish for his relief conform to the Act of Parliament In which case in respect the pursute was by the space of 8. or 9. years after the Designation And the Heretors were in bona fide and did possess their own Lands and had made fructus suos The Lords Found That the Defenders were not Lyable to pay the Annualrent for the Sum decerned from the time of the Designation Seing usurae debentur only ex pacto vel mora Albeit it may appear That that Relief that is due ex lege is at least alse effectual as if it were ex pacto And the very Notion of Relief imports that the Party should be relieved of all Damnage sustained by him And the Pursuer was prejudged not only by the want of the value of what he was to be Relieved of but of the Interest of it Gibson Clerk D. 353. Ramsay contra Zeaman 7. June 1676. DOctor Zeaman By Contract of Marriage betwixt him and Margaret Ramsay was obliged to employ 10000 lib. to himself and her in Liferent and the Heirs of the Marriage And was also obliged to employ other 20000 lib. to himself and to the Heirs of the Marriage with a Provision that he should have power to burden the said Heirs of the Marriage with an Additional Joynture to his Wife and the provisions of his other Children at any time etiam in articulo mortis Which Joynture and Provision is accepted by the said Margaret in satisfaction of what else she could claim of Terce or Moveables And thereafter the Doctor in his Testament having named his Son and appearand Heir to be his Executor and universal Legator and having left in Legacy to his Wife the Annualrent of 3000 Merks by and attour her Joynture and diverse Provisions to his other Children and Legacies to other persons His Relict and her present Husband pursued her own Son as Executor to his Father for payment of the said Legacy left to her And it being Alledged That the Inventar of the Testament would not extend to satisfy all the Legacies and that there ought to be a Defalcation proportionably It was Answered That she was not to be considered as an ordinar Legator but in effect was a Creditor In respect of the said Provision and Power reserved to the Doctor as said is And that he had used the said power and faculty The Lords Found That the said Addition being left to her in Legacy she was in no better case than the other Legators and had no preference before them out of the Executry Yet it is thought That if there be not so much of the Executry as to satisfy the Relict her Legacy the Heir will be lyable for what she wants Seing by the said Provision the Heirs of the Marriage are burdened with what he should add to her Joynture etiam in articulo mortis And albeit nemo potest facere ne leges habeant locum in suo Testamento and no person at any time can reserve a Power to burden his Heirs at such a time as in Law he is not in legitima potestate yet when any person gives any thing or makes a Provision in favours of any other person or of his Heirs of Provision he may give and qualify the same sub modo and with what burden he pleases and therefore the Defender being not only Executor but the only Heir of the Marriage will be Lyable by the said Provision to the said Addition and Provision in favours of his Wife and Children albeit left in Lecto And he cannot frustrate the same upon pretence that he will not serve himself Heir of Provision but Heir of Line seing he is the same person and
Back-bonds which upon the matter are Translations whereas a Singular Successor has none 7. That such Back-bonds should affect Comprysings not only before but after Infeftment during the Legal But thereafter should cease to qualify the same It seems to be inconsistent with and against the principles of Law In praesentia D. 375. _____ contra _____ eod die THE Lords Found That a Bishop and Executors had Right only to the Quots of such Testaments as were confirmed in the Bishops time in his own Right as Bishop for the time And the said Quots being in effect Sentence-Silver dies cedit by the Confirmation so that whosoever is Bishop then has Right to the same They Found likewayes That Quots being a part of the Bishops Patrimony and Rent The Quots of all Testaments confirmed within the half Year after the Bishops decease did fall under the Ann and belong to the Bishops Relict and Executors Vide Carpzovium lib. 1. Jurisp Consistorialis de Salario defuncti Pastoris semestri D. 376. Spence contra Scot 7. July 1676. IN a pursute for payment of a Sum of Money It was Alledged That the Pursuers Cedent was Tutor to the Defender and had not made his Accompt Which Defence the Lords sustained against the Assigney But it was their meaning that the Pursuer should not be delayed and and that a competent time should be given to the Defender to pursue and discuss his Tutor Glendoich Reporter Mr. John Hay Clerk D. 377. Johnstoun contra Rome 8. July 1676. IN a pursute upon the passive Title of Successor Titulo Lucrativo In swa far as the Defender had a Disposition from his Father without an Onerous Cause The Lords sustained the pursute albeit it was Alledged by the Defender he had made no use of the said Disposition and was content to renounce the same which the Lords Found he could not do being delivered to him A Concluded Cause Advised Mr. Thomas Hay Clerk D. 378. Finlaw contra Litle 11. July 1676. A Legacy being left in these Terms viz. That it should be payed out of the Testatrix her Household Plenishing and Debts due upon Compts The Lords Found That albeit the said plenishing and Debts should not extend to satisfy the said Legacy that it was not a limited Legacy but ought to be satisfied out of the other Executry and that the saids words were only executiva as to the order and way of Payment in the first place and Interpretatio should be ut actus valeat especially seing the Legator was the Defuncts Relation And it is to be presumed that the foresaid qualification was only as to the way of payment In respect the Defunct did look upon her Plenishing and Debts foresaid as sufficient to pay the same And did not declare that the said Legacy should be only payed out of the same and in case it should be short that she should have no more And it appeared to the Lords that the Executors had given up a very inconsiderable Inventar of the plenishing and far short of what a person of the Defuncts condition and profession being a great Innkeeper behoved to have in order to her Calling Actores Dalrymple c. alteri Hog in praesentia D. 379. Bishop of Dumblain contra Kinloch of Gilmertoun eod die IN Anno 1620. His Majesties Grand-Father did Annex the Deanry of the Chappel Royal to the Bishoprick of Dumblain And did mortify thereto an Annualrent of Ten Chalders of Victual out of the Lands of Markle and Traprane By vertue of which Right the Bishops of Dumblane have eversince possest the said Annualrent until 1638. that the Bishops were supprest And thereafter Mr. Alexander Henderson and Mr. Robert Blair being provided thereto as his Majesties Chaplaines did continue in the possession of the same till the Bishops were Restored in 1661. and since the Bishop of Dumblane was in possession of the same But Francis Kinloch now Heretor tho he had been in use of payment of 8. Chalders of Victual as a part of the said Annuity out of his Lands since he acquired a Right to the same being charged at the instance of the said Bishop did Suspend upon that Reason viz. That the said Annualrent was Wadset by the Earl of Bothwel in the Year 1587. to Mr. Thomas Craig for 7000 Merks And John Murray Earl of Annandale having acquired the Right of the said Annualrent and having resigned the same in savours of K. Ja. to the effect it might be Mortified as said is The King by the said Mortification could give no other Right than what flowed from the said persons his Authors which was redeemable as said is and de facto the said Right was Redeemed In sua far as the Right of Reversion of the said Annualrent having come in the person of the Duke of Lennox Donator to the Forefaulture of the Earl of Bothwell and from him to the Earl of Balcleugh and from the late Earl of Balcleugh to Sir John Scot of Seatoun Caetera desunt D. 380. Jaffray contra Murray 8. November 1676. A Party being pursued upon the passive Titles and in special upon that of Charged to enter Heir and having offered to Renounce It was Replyed that he could not Seing Res was not integra In Respect he had granted a Bond Of purpose that thereupon the Estate might be Adjudged The Lords Found That albeit he had not granted the Bond upon the designe foresaid yet the Estate being adjudged and incumbered by his Deed he ought to be Lyable to the Defuncts Creditors pro tanto Or to purge Gibson Clerk It is Thought That if the Appeirand Heir should dolose grant a Bond that the Defuncts Estate might be thereupon adjudged ought to be Lyable in solidum But if he grant a Bond which is a lawful Deed and thereupon his Creditor adjudge which he could not hinder It is hard to sustaine a passive Title against him unless his creditor having adjudged were satisfied by that course In which case seing the Defuncts creditors are prejudged It is Reason he should be Lyable pro tanto D. 381. Steuart contra Hay 9. November 1676. LAnds being bought after Interdiction A Reduction of the said Interdiction was pursued at the instance of the Buyer upon these Reasons 1. That Interdictions by the Common Law are only of prodigi And Interdictors are in effect given Curatores to them And by our custom albeit Interdictions are granted sine causae Cognitione upon Bonds granted by persons interdicted upon that consideration and narrative that they are persons facile and not fit to manage their Estate whereupon the Judge presumes that they are such and upon a Bill gives warrand to publish the same yet the Interdiction in question ought not to be sustained seing it is not the ordinary stile of other Interdictions and the Bond of Interdiction bears no narrative of Facility but only that the Granter for the standing of his Family being very Ancient did oblige himself not to Dispone his Estate
prejudged by any Deed of the Rebel in filling up of the same It was also Found That albeit the Lord Bamff by his Letter was bound up that he could not question the said Bonds upon the pretence foresaid of Condictio or any other that might have been competent against the said John Lyon Yet notwithstanding of the said Letter the King might have given and he might accept either a Gift of Lyons Escheat or a Right from the Donator and thereupon might claim Right to the said Sums Thesaurer Depute Reporter Mr. John Hay Clerk D. 406. Tennent Young and others contra Sandy Procurator-Fiscal of the Regality of Ogilface eod die IN a Declarator of a Liferent-Escheat It was Alledged That there could be no Escheat upon the Horning Lybelled Because it was upon Letters direct by the Secret Council upon a Decreet of a Regality Court And by the Acts of Parliament The Lords of Session are only warranted to direct Letters of Horning summarly upon the Decreets of Sheriffs and Baillies of Regality and other Inferior Judges The Lords Thought That the Council could not direct Letters of Horning upon the said Decreet Seing before the Acts of Parliament Letters of Horning could not be direct upon the Decreets of Inferiour Judges summarly without a Decreet Conforme before the Lords of Session And Statutes being Stricti Juris the Council could not direct Letters unless by the same Statute they had been warranted to that effect and it appears that the said Statute was founded upon good Reason and Considerations tho they be not exprest viz. That the Lords of Session are always sitting in the time of Session and in vacance there is some of their Number appointed to receive and pass Bills of Suspension if there be cause whereas the Council sitteth but once a Week ordinarly in Session-time and in Vacance but thrice 2. The Lords do not pass Suspensions but upon good Reasons and they are to consider the said Decreets which is not proper for the Council 3. As Suspensions are raised of the said Decreets so oft times there is a necessity of raising Reductions and the Lords of Council are not competent Judges to the Reduction of the said Decreets But the Lords thought not fit that there should be a question betwixt them and the Council concerning their Priviledge and therefore did forbear to give answer until some accommodation should be endeavoured And it was proposed by some that the Decreet of the Regality Court being for keeping of Conventicles and that practice concerning so much the Peace of the Countrey that all Disturbance thereby might be prevented and upon that account it being recommended to the Council by Act of Parliament that they should see the Laws against Conventicles put effectually in execution The Council as they might conveen the Contraveeners before themselves may commissionate the Inferiour Courts to proceed as their Delegats and upon their Decreets given by them as their Delegats that they may direct Letters of Horning Thesaurer-depute Reporter D. 407. Ker contra Hunter 20 December 1676. A Personal Action was sustained upon a Right of Annualrent against the Tennents during their Possession for the Mails and Duties effeirand to the said Annualrent Thesaurer-depute Reporter Mr. Thomas Hay Clerk D. 408. Carnegie of Balmachie contra Durham of Anachie eod die THE Lords Found That albeit by the common Law Annualrent be due for Tocher yet by Our Custom it is not payable unless it be so provided by the Bond or Contract for the same but in the case in question They Found the Defender lyable to pay Annualrent in respect the Debitor had been in use of payment at the least had promised to pay Annualrent for certain years bygone and Annualrent once payed implyes a tacite Paction to continue the payment of the same Thesaurer-depute Reporter _____ Clerk D. 409. Veitch contra Pallat. eod die THE Lords Found That a Rebel contracting Debt after Rebellion cannot assign in satisfaction of the same any debt due to him and tho the Assigney should transact with the Debitor of the Debt assigned before a Gift and Declarator the Donator will be preferable Lockheart and Hog for Veitch alteri Cuningham and Seaton Gibson Clerk In praesentia D. 410. Inter eosdem eod die AND in the same Case It was Found That a Bond granted after Horning tho it did bear that the same was for Wines yet being the Rebels assertion could not prejudge the King but it being alledged and offered to be proven that the said Wines were truely furnished before the Rebellion The Lords Found the Alledgance relevant to be proven only by the Rebels Compt Books and by Books of Entry and not simply by Witnesses without such Adminicles in Write D. 411. Pallat contra Veitch eod die THE Lords likeways Found That the Presumption introduced by the Act of Parliament that Gifts of Escheat are simulate in respect that the Rebel is suffered to possess is only in that case where the Rebel has a Visible and Considerable Estate of Lands or Tacks and is in possession of the same but when the Rebells Estate is either not considerable consisting only of an Aiker or two which was the case in question or in nominibus and not known to the Donator so that the Donator had reason not to trouble himself and to look after either that which was inconsiderable or which was not known to him there is no ground to presume that the Gift is simulate D. 412. Tait contra Walker 22. December 1676. THE Children of a second Marriage having pursued the Son of the first for Implement of their Mothers Contract of Marriage and the Provisions therein contained in their favours It was Alledged That they were Debitors themselves in swa far as they were Executors named and confirmed to their Father And It being Replyed That the Testament was given up by the Mother they being Infants for the time and she was not their Tutrix and so could not bind them The Lords Found That there was Difficulty in the case in respect the Pursuers were now past 40 years and they had never questioned or desired to be reponed against the said Confirmation And on the other part It was hard that a Deed of their Mother having no Authority to do the same as Tutor or Curator should bind them and there was no necessity to be reponed against the same it not being their Deed and being ipso Jure void and therefore before Answer the Lords thought sit to try if the Pursuers had meddled with any part of the Executry or had done any Deed that could import Homologation of the said Testament Newbyth Reporter D. 413. _____ contra _____ eod die IT was questioned amongst the Lords whether an Inhibition could be sustained albeit the Execution did not bear a Copy to have been affixt at the Mercat-cross And it was Resolved as to the future it should be declared that Executions of Inhibitions should be null unless Copies were affixt In
the Qualifications libelled were not relevant to import such a force and metus as could be the ground of a Reduction of the said Right ex eo capite tho they were convinced that the practice foresaid is most unwarrantable and dolosa and that thereupon the Right may be questioned as to Sir John himself but not as to a singular Successor and that there is a difference betwixt a Reduction ex capite metus which is competent against singular Successors and a Reduction ex capite doli which is not competent against a singular Successor who bona fide has acquired a Right for an Onerous Cause But diverse of the Lords were of Opinion that the Defence foresaid that there was no damnum was most relevant for these Reasons viz. All Restitutions upon what mediums soever whether metus or dolus or lubricum aetatis are against damnum and prejudice for frustra should Restitution be craved if there be no damnum 2. It is evident by diverse Laws and the Title foresaid quod metus c. That ex edicto quod metus causa c. non datur actio si nihil absit succurritur only captis laesis 3. By the Civil Law there were diverse Remedies competent to these who had been forced to do any deed viz. A Civil action ex Edicto Praetoris and a Criminal Action ex lege Julia and a Penal Remedy ex decreto Divi Marci That a Creditor by force extorting what is truely due amittit Jus Crediti And our Reductions ex capite metus are but Civil Actions as that ex Edicto And the said other Remedies being penal by the Municipal Law of the Romans cannot be introduced by the Lords of Session being Civil Judges without an Act of Parliament 4. All Restitutions should Repone both Parties in integrum and it were unjust that if it were constant and the Lords were convinced upon their own certain knowledge that there had been an antecedent Minute and that the same had been cancelled upon the granting of the said Disposition that Minto should be restored and not the said Sir John that now res non est integra seing the antecedent Minute is not Extant and tho it were Extant it would be ineffectual In respect Minto has Disponed the foresaid Lands to this Pursuer who is Infeft and having the first Infeftment would be preferable whether the Minute were Extant or not 5. As to the pretence that was so much urged that it would be of dangerous consequence that such Deeds extorted by force should be sustained upon the pretext of non damnum and that it would tend to encourage such practices the same is of no weight seing the Deed being just upon the matter may and ought to be sustained and yet the way of procureing the same may be severely punished 6. As to the difficulty of Probation there being no Adminicles in Write that there were such a Minute It is not considerable Seing multa permittuntur causative which cannot be done directly and that tho the Result of Probation by Witnesses may be the making up or taking away of Writes which cannot be done directly but by Write yet when that which is to be proven is in Fact it may be proven by Witnesses as in the same case that the Disposition in question was Extorted it may be proven by Witnesses to take away the said Disposition And if a person should be forced to grant a Disposition of Lands of 20. Chalders of Victual of Rent and in Exchange should get a Disposition at the same time of other Lands of the half value it were a good Defence and probable by Witnesses that the Pursuer did get the time of the granting the Disposition of Lands worth 20 Chalder Victual a Disposition of less value and Contingentia causae and of a Transaction and circumstances of the same ought not to be divided but may and ought to be entirely proven by Witnesses alse well for the Defender as the Pursuer Actor Lockheart and Sinclair alteri Cuningham and MckenÈie Mr. John Hay Clerk In praesentia D. 420. Commissar of St. Andrews contra Watson 11. January 1677. THE Lords sustained a pursute at the instance of the Master of the Ground against these who had bought from his Tennent his Corns and other Goods wherein the Pursuer had a Tacite Hypothâ—â—k Glendoich Reporter Mr. John Hay Clerk D. 421. Viscount of Oxenford contra Mr. John Cockburn eod die MR. John Cockburne having gone Abroad with the Viscount of Oxenford and after his Return having gotten several Bonds from the said Viscount of considerable Sums and also a Pension of 1000 Merks And having charged upon the same the Viscount Suspended upon that Reason that the said Mr. John dureing their being Abroad had received great Sums of Money remitted to him upon the Viscounts account for which he had not Compted and that after Compt and Reckoning he will be found Debitor to the Viscount in more than the Sums charged for And it being Alledged by the said Mr. John that he is only comptable for his Intromission and that his Actual Intromission ought to be Instructed by Write or by his Oath and the Declarations of Merchants and Factors Abroad cannot be Probation to bind upon him so great Intromissions The Lords considered the condition of the Viscount for the time that he could not Intromet himself and that the said Mr. John had such Influence upon him that having been his Governour at Schools and upon the desire of his Friends being put from him by an Act of Council He notwithstanding without and contrare to the Advice of his Friends carryed him Abroad and since his return had gotten from him the Bonds foresaid And therefore thought fit to try the Business to the bottom And to ordain the said Mr. John to give in his Compts of what was received and debursed when the Viscount was Abroad and the Factors and other Witnesses to be Examined concerning his Intromission and whether or not any Moneys that were remitted for the Viscounts use were received by the Viscount himself or by the said Mr. John Redford Reporter Mr. John Hay Clerk D. 422. Laird of Bavilay contra Barbara Dalmahoy eod die A Horning against a Person dwelling within the Shire of Edinburgh upon Lands Annexed to the Barony of Renfrew being denounced at Edinburgh was sustained In respect that the said Lands were Locally within the Shyre of Edinburgh And the Rebel In respect of his Residence there was Lyable to the Jurisdiction of the Sheriff and to all Burdens and had all Capacities competent to the Shire of Edinburgh Mr. John Hay Clerk D. 423. Baillie contra Somervel eod die THERE being a Provision in a Contract of Marriage in these Terms that 5000 Merks of the Tocher should return to the Father in Law in case his Daughter should decease before her Husband within the space of 6 Years after the Marriage there being no Children betwixt them then on life
Vectigalium Ibidem CONFESSION presumptive of a person holden as confessed d. 217. CONFIDENT persons getting Dispositions from Debitors may at the Debitors desire satisfie such Creditors as they shall think fit d. 174. CONFIRMATION necessary in Scotland of goods there belonging to Strangers elsewhere d. 21. CONJUNCT probation of the value of Lands d. 431. CONQUEST see d. 9. d. 359. Conquest found probable by the Debitor and Witnesses in the Bond. d. 68. CONSIGNATION in Improbations d. 278. CONSVETVDO Loci d. 390. CONTINGENTIA Causae non debet dividi see d. 288. A CONTRACT Subsequent to a Wadset whereby the Back-tack dueties are accumulated and made a princial Sum and that there should be no Redemption till these were Satisfied not regarded in respect the said Contract was not Registrate in the Register of Reversions d. 27. Contracts of Marriage see d. 9. d. 123. d. 161. d. 169. d. 172. d. 185. d. 195. d. 364. CORREI debendi see d. 231. COUNTERBAND Goods d. 132. d. 153. CREDITORS on the account of Funerals and Druggs d. 206. When Creditors do appear in Adjudications not called they ought to be admitted with that quality that the Adjudger shall be in the same case as to any Adjudication at their Instance as if both Adjudgers were within Year and Day d. 324. CURATOR d. 363. d. 435. see d. 88. d. 316. Curator non datur personae sed rebus so that the Minors person is not in potestate d. 321. Curators Subscriveing only to Writs and not the Minors d. 216. D. DAMNAGE by Ruinous Houses sustained without necessity to say that the Defender was required to repaire his House d. 66. DATE see d. 179. DEATH-BED Vide in Lecto Litera L. DEBITOR non praesumitur donare how to be interpret d. 333. DEBITVM Fundi d. 274. d. 372. DECIMAE inclusae not Lyable to the Augmentation of Ministers Stipends d. 229. DEEDS in Lecto see in Lecto Lit. L. DECLARATOR of Redemption d. 276. A Declarator that Childrens Provisions being granted after Contracting of the Debt should be Lyable to the Creditors and their Diligence sustained without Reduction d. 344. Declarator general of Non-entry being intented the hail Duties are due d. 28. Declarator of the Nullity of a Minute d. 118. DECLINATOR of Judges d. 303. DECREET see d. 98. d. 203. A Decreet against a person holden as confest craved to be declared Null d. 232 Decreets in foro d. 361. see d. 225. d. 370. Decreets of Inferior Judges see d. 445. DEFENCE after Litiscontestation d. 246. In DELICTS by SpuilÈie and wrongous Intromission Decreets against persons are construed to be in solidum d. 247. DELIVERY of Writts d. 150. d. 272. d. 442. see d. 106. d. 129. Dementia See d. 76. DENOUNCIATION of Lands see d. 328. DEPENDENCE see d. 36. DEPOSITIONS of Witnesses in one Process craved to be repeated in another d. 219. Depositions of Witnesses to ly in Retentis d. 236. DESIGNATION of Lands for a Gleib and relief thereof conform to the Act of Parliament from the rest of the Heritors but Annualrent found not due from the time of the Designation d. 352. DISCHARGES granted by a Master to Tennents without Witnesses d. 189. A DISPONER may qualify his Right and in special if the person be a Pupil that such as are named in the Disposition should Administrate d. 316. A Disposition made after Inhibition but before the Registration of the same may be reduced ex capite Inhibitionis d. 254. DISCUSSING of Heirs see d. 69. DONATIO inter virum Vxorem d. 204. d. 426. d. 362. DONATOR see d. 14. d. 249. d. 389. d. 411. A Donator of ultimus Haeres d. 38. The Donator a quo tempore has he Right to the full Rents d. 273. E EDICT of Executry d. 433. EJECTION sustained at the Masters instance tho the Tennent did not concurr but not quoad omnes effectus d. 19. Ejection sustained at the Wifes instance where the Husband is absent d. 105. ERROR and mistake d. 338. ESCAPE of Prisoners d. 299. d. 301. d. 306. ESCHEAT see d. 14. d. 59. d. 75. d. 162. d. 205. d. 331. d. 409. d. 411. Escheat passes cum sua causa d. 177. EXAMINATION of Witnesses in an Improbation d. 42. EXCEPTIO Falsi proponed peremptorie d. 126. Exceptions quo casu they affirm the Lybel see d. 199. d. 223. EXCHANGE see d. 231. EXECUTOR d. 62. d. 182. d. 454 d. 412. see d. 181. d. 187. d. 205. d. 224. An Executor has not an absolute property in the Goods confirmed but only qualified and for Administration d. 302. Executor Creditor see d. 389. Executor Creditor Lyable to doe Diligence d. 35. Executors giving Oath upon the Inventar d. 97. EXERCITORES navis Lyable in solidum d. 166. EXHIBITION sustained of Writts intrometted with by the Defender albeit not proven that he had them at or since the intenting of the Cause he having medled with them in the Charter-chest whereby fraud is presumed d. 114. Exhibition ad deliberandum d. 49. d. 258. EXPENCES see d. 281. d. 458. Expences of Executors upon pursueing of Processes doe affect Legators d. 181. Anent EXTRACTING of Decreets and when res est integra as to the proponing of New Defences d. 203. F. FACULTY reserved in a Disposition to burden with a Sum. d. 457. Faculty reserved out of the Right of Fee to burden the same with a Sum of Money d. 418. Causa FALSI see d. 196. d. 385. FEES of Commissioners to the Parliament d. 188. FEUARS see d. 190. FEU-DUTY see d. 92. d. 229. FIAR see d 95 d 136 d 144 d 213 d 350 d 418. FINES see d 311. FRAUDULENT Rights d. 48. d. 156. Fraudulent Rights contrare to the Act of Parliament 1621. d. 198. FUNERALS see d. 206. FORTHCOMING see d. 110. Forthcoming in effect Execution and equivalent to a poinding d. 53. G. GESTIO pro haerede d. 151. see d. 119. Gestio pro haerede by Intromission with Rents not sustained where there is a Title d. 67. Gestio pro Haerede elided by the Behavers having got a Gift of the Defuncts Escheat ante motam litem d. 331. Gestio pro Haerede inferred by the Appearand Heirs consent to expired Comprysings d. 63. GIFT of Ward in favours of the Vassal himself accresces to the Subvassal d. 392 Gifts of Escheat d 409 see d 187 d 224. d 249. Gifts of Escheat and Backbonds d 162 Gifts of Escheat when presumed simulate d 411. GLEIB see d 93. d 352. GOODS Disponed stante rebellione fall under Escheat d. 75. GOVERNOURS going Abroad with Youngmen their case as to their Intromission d. 421. GRANA crescentia see d 293. GRASS due to Ministers d 256. H. HABIT of Bankrupts d. 282. HEIR see d 69 d 85 d 169 d 172 d. 214 d 353 d 400 d 416 d 450. Heir of Line see d 107 d 295. If an Heir of Provision may be pursued where the Heir of Line has renounced but not yet discussed by Adjudication d
for the ordinary mails and duties of the Land Though some were of the opinion that before Sentence the Vassal should only be lyable for the retoured dutie D. 29. Wilkie contra eod die SIr John VVilkie of Foulden having intented a Reduction of a voluntar Interdiction made by him to some of his friends The Lords appointed some of their number to conferr with him and upon their Report that he was rational and intelligent and for any thing appeared by his discourse and deportment Rei suae providus The Lords Reduced in absence there being no compearance or opposition for the Interdicters D. 30. The Lyon contra 26 July 1666. BY the Act of Parliament Ja. 6. Parl. 11. cap 46. It is ordained that Officers of Arms should find suretie to the Lyon for observation of their Injunctions under the pain of 500. Merks with the damnage and interest of the party greived by the malversation negligence or informality of the Officer In a process betwixt the Lyon and _____ It was controverted whether the Cautioner might be pursued before the Lyon for payment of the Debt as damnage and interest by reason of the malversation of the Officer of Arms in a poynding It was alledged that the Lyon was a criminal Judge and most competent as to the Question whether the Messenger had committed iniquity and malversed in his Office and whether he should be deprived and he and his Cautioner had incurred and should be lyable to the pain aforesaid But as to the civil action against the Cautioner there might be a good ground of action against the Cautioner upon the act of caution before the competent Judge But the Lyon being Judex pedaneus was not Judge of actions of that nature and consequence In respect they may be of great difficulty and importance For if the Cautioner should be pursued for payment of the Debt being supposed to be 1000 merks upon pretence of the malversation of the Officer and that he had not done his dutie in poynding and comprysing It were hard and dangerous that the Lyon and his Bretheren should be Judges in a matter of that consequence And it will not follow that because the Messenger had not done his dutie in a Caption or comprysing that his Cautioner should be lyable for the Debt as damnage and interest Seing the Caption and Comprysing might have been ineffectual and the Creditor could not thereby have gotten payment And it appears by the said Act of Parliament that the Lyon is only Judge to the penal Conclusion of deprivation of the Officer and payment of the pain The Lords notwithstanding Found the Lyon Judge competent to the action against the Cautioner for damnage and interest Me inter minimos reclamante Gibson Clerk Newbyth Reporter D. 31. McKenzie contra Fairholm eod die THe Lords Found in the case before mentioned 24. July MckenÈie contra Fairholme That a Father is loco Curatoris to his Son being in familia and that a bond granted by the Son without his consent is null ipso jure as if it had been granted by a Minor having Curators without their consent D. 32. Wedderburn contra Scrimzeour ead die IN the case Scrimzeour and VVedderburn of Kingennie mentioned before 18. July A legacy being to be effectualin that case only If the Testators Wife should not be brought to bed of a Man Child It was Found that a Male Child should be understood a living Child and that Homo Mortuus and a dead Child is nullus in Law And that the legacy should be effectual though she had been brought to bed of a Male Child but dead D. 33. Menzeis contra Burnets eod die IN the case MenÈies contra Burnets It was Found that a Relict being provided to a Liferent of all the Goods belonging to her Husband ought to sell and make Money of the Horse Oxen and such Goods as may perish to the effect she may Liferent the Money and make the Sum forth-coming after her decease but cum temperamento That a competent time should be allowed to that effect And if the Goods should perish in the mean time she should not be lyable for the same In that same case it was Found that a Relict should not have both a Liferent and Third but should have her choice or option of either Some of us were of the opinion that seing it appeared by the Contract that the Goods were not to be in Communion but that she was to have a Liferent of the same she had not a choice to have a Third or Liferent Hay Clerk Lord Lie Reporter D. 34. contra Blantire 27 July 1666. _____ Having intented a Reduction of an Interdiction upon that reason that Blantyre was rei suae providus And that the Pursuer had lent him the Money due to him when he was in England and in necessity and being a stranger and a Creditor he ought not to be prejudged by such a voluntar Interdiction being upon a Bond granted by the Debitor without a previous Sentence finding Blantyre to be prodigus or such a person as should be interdicted The Lords Thought The Case of that Consequence that they would not decide upon a Report but Ordained it to be debated in praesentia Lord Castlehill Reporter D. 35. contra eod die IT was decided That an Executor Creditor was lyable to do diligence as other Executors and tho there was a difference betwixt him and other Executors upon that account that he was confirmed in order to his own interest and to the effect he might be payed of his Debt and had preference before other Creditors yet as to the Duty and Office of ane Executor there was no Difference And having accepted the Office which was Voluntatis it became Necessitatis and he was obliged to Execute it Reidie Reporter D. 36. L. Borthwick contra Ker. eod die AN Inhibition being raised upon the dependence of a pursuit for maills and duties for three years preceeding the Summonds and in time coming during the defenders possession It was Thought that the inhibition relateing only to the Summonds as to the three years preceeding without mention of the subsequent years could not be a ground of Reduction Ex capite Inhibitionis in respect the defender in that pursuite was assoiled as to the years before the Summonds as being bona fide Possessor And albeit the Summonds was not only for these years but for the time to come as said is and the Defender was decerned to pay maills and duties for certain years after the Summonds yet the Leidges were not obliged to take notice of the Summonds but as it was related in the Inhibition The Lords were of this opinion But the case was not decided the Pursuer having desired up his process that he might be better advised Advocat Oliphant and Sir Robert Sinclair D. 37. E. Newburgh contra Stuart eod die SIr William Stuart being Creditor to the Earl of Newburgh in a great Sum upon an Infeftment in the said Earls
Lands after his Majesties Restauration he was induced tho there was no Question as to the Debt to make a Reference and Submission to the Laird of Cochran and Sir John Fletcher upon no other account but that he apprehended that Newburgh might trouble him and cause him be fined which was the ordinary and Ignoble practice of Noblemen at that time against their Creditors These Arbiters did take from the said Sir William a discharge of the Debt and renunciation of his Right and from Newburgh a blank bond as to the Sum and the said Debt then amounting to 40000 merks they did give to the Earl of Newburgh the Renunciation and to Sir William Newburgh's simple bond filled up with 6500. Merks only Newburgh pretending that Sir Alexander Durhame then Lord Lyon was owing him Money did by way of letter give a precept to the Lord Lyon in these terms That he desired him to pay that Sum to the bearer upon sight and that he should retire his bond This letter being presented to the Lyon he in a scornful and jeering way subjoyned to the letter My Lord I am your Humble Servant the Earl of Newburgh not satisfied to have payed Sir William in manner foresaid as to 3400. Merks did intent a pursuit against Sir William That he might be free of the Residue and get back his Bond of 6500. Merks upon that pretence that the said Sir William had got from him a Bill of Exchange which had been accepted by the deceast Sir Alexander Durham at the least in case of not accepting he should have protested and intimated to Newburgh that it was not accepted nor satisfied that he might have recourse against the said Sir Alexander in his own time whereof he is now prejudged Upon a Debate in praesentia It was Found that the said letter was not a Bill of Exchange but a precept and that the receiving of such precepts upon Chamberlanes and others being for the Creditors further suretie do not oblige them to the formalities of presenting protesting and intimating which are in use in the matter of Exchange and Trade betwixt Merchant and Merchant Advocats Lockhart VVallace contra VVedderburn and Chalmers D. 38. Crawfurd contra the Town of Edinburgh last of July 1666. A Donator by a Gift of Vltimus Haeres having Pursued for a movable Debt due to the Defunct The pursuit was not Sustained because the Gift was not declared D. 39. Gray contra Gordon eod die A Bond being granted to Sir Robert Farquhar and bearing the term of payment to be diverse years after the date of the same and Annualrent to be payed in the interim termly and yearly Was found to be Heretable quoad Fiscum Though Sir Robert Farquhar had deceast before the term of payment of Annualrent And the assigney was preferred to a Donatar D. 40. Halyburton contra Halyburton eod die A Son having intented a Reduction of a disposition made by his Father for provision of the rest of the Children In lecto aegritudinis The Lords found the Defence relevant that the Pursuer had consented in so far as the Son had Subscribed as Witness and knew and heard the disposition so that he was not ignorant of the tenor of it And it was remembred by the Lords when they were voting that they had found the alledgance relevant That a Son and appearand Heir that Subscribed as Witness to his Fathers deed in lecto without that addition that he heard it read in the case of Stuart of Escog It being to be presumed that the appearand Heir being of age would not be Witness to such deeds unless he inquired and knew what they were D. 41. Cuming contra Johnston 7. Novemb. 1666. SOme Lands in Dumbar being disponed by one Adamson in favours of Johnstoun with a provision contained in the disposition and Infeftment that a Sum of Money should be payed by the receiver of the disposition to him or any he should name And in case it should not be payed the Right should be void And the saids Lands being thereafter apprysed It was found against the compryser that the said clause and provision was real And that the person named and having Right to the Sum and benefit of the said clause Though before declarator he could not pursue a removing yet he has good interest to pursue for the mails and duties for payment of the said Sum and being in possessorio to retain the mails and duties for payment of the said Sum pro tanto And that the said provision and such like are effectual against singular Successors It was urged by some That all that could be done upon that Clause was that a Reduction of the Right might be pursued thereupon But it was answered that it being actum that the Lands should be burdened with that Sum and if nothing more had been exprest but that it is provided that the said Sum should be payed the said provision being real would have furnished the said action and exception for payment of the said Sum out of the maills and duties And therefore the subjoyning the resolutive clause being ad majorem Cautelam could not be prejudicial nor retorted in prejudice of the disponer nor his Assigney This Question was hinted at but not decided in the said Debate viz. If the Declarator should be pursued upon the said clause for annulling the Right if it should operate in favours of the Assigney the Lands not being disponed to him in case of contraveening being to appertain to the disponer and his Heirs in case the Right should be rescinded It s thought that the provision being assigned the whole benefit and consequence of the same are disponed and consequently the assigney in the case foresaid of annulling the Right may pursue the Heirs of the Disponer and receiver of the Right and his Successor to denude themselves of the Right of the saids Lands Newbyth Reporter D. 42. Hay contra Magistrates of Elgin eod die IN the case Colin Hay against the Magistrats of Elgin Improbation being proponed against the Executions of Messenger bearing that he had intimated to the Magistrats that he had arrested a prisoner at the instance of the said Colin And the Magistrats and Witnesses compearing and urging to be examined It was alledged for Colin that they should not be examined Because the Messenger who was also cited was not present and that if he were present he might condescend upon circumstances and remember the Witnesses that they had been Witnesses it being otherewise incident to them to have forgotten though they had been truely Witnesses to the Execution It was answered for the Magistrats that they had cited both Witnesses and Messenger that they had done all that was incumbent to them and his not appearance ought neither to prejudge them nor the Witnesses And that having come in obedience to the citation they should not be troubled to come here again their Residence being at such a distance The Lords indulged so far to Colin as
whereby it was agreed that Pitrichie who and his Predecessors had an ancient Wadset of the Lands of Achincreive and others being a part of the said Barony should have the Reversion Discharged by Geight and that Geight should give him a new Right of the said Wadset-Lands irredeemable and holden of the King and should pay to Pitrichie for the Charges in obtaining and declaring of the said Gift 4000 Merks And that on the other part Pitrichie should Dispone to Geight the rest of the Estate and the Right he had thereto by the said Recognition Thereafter Pitrichie having intented Declarator for Nullity of the said Minute upon pretence that Geight did refuse and fail to perform his part did obtain a Decreet and did enter into a Bargain with the Earl of Aboyn and did dispone to him a considerable part of the said Estate that by his Power and Interest in the Countrey he might be maintained and be able to enjoy the rest But before the granting of the said Right to Aboyn Geight had intented a Reduction of the said Decreet of Nullity upon that Reason That the said Decreet was given In respect he had not the Writes at that time in hand to produce and to instruct that he was able to give a Right of the said Wadset-lands to be holden of the King and that they were now found upon search of the Registers So that he had not been in mora and the not production of the said Writes ought not to be imputed to him but to the Confusion of the Times his Writes being scattered and his Father having been long time a Sufferer and Prisoner for serving the King The Lords Found That the said Decreet being in effect upon a Certification for not Production and Geight condescending and offering to instruct that he had not been negligent and the occasion and manner that the said Writes were not in his Hand and how he had recovered the same he ought to be reponed against the same And that by the Reduction before the granting of the Right to Aboyn it was res litigiosa and Aboyn ought to be in no better case than Pitrichie D. 371. _____ contra _____ eod die A Bond granted by a Woman stante matrimonio for payment of a Sum of Money being ratified judicially It was Found That the Ratification did not bind her being of a Deed null in Law tho it was judicial being likewayes stante matrimonio D. 372. Blair of Kinfauns contra Mr. Thomas Fouler 6. July 1676. IN the Case betwixt Sir William Blair of Kinfaunes and Mr. Thomas Fouler It was Found That an Action at the instance of the Executors of a Minister for building a Manss and refounding the Expences of the same is competent against the Heritors for the time and their Representatives but not against a singular Successor and that it is not Debitum fundi Newbyth Reporter Gibson Clerk D. 373. Rynold contra Erskines eod die THE Lords Found That a Father having assigned certain Bonds for provision of his Children the Creditors have not only an Action of Reduction competent to them but a personal Action to refound the Sums uplifted upon the Bonds if the Assignation should be found to be fraudulent But did Reserve to the Defenders to debate whether the same was fraudulent The Defenders having Alledged that the same were granted by their Father having a plentiful Fortune for the time so that he might lawfully provide his Children Newbyth Reporter D. 374. Crauford contra Gordon eod die IN the Case Alexander Crauford contra Sir Lodovick Gordon The Lords thought the point in question viz. Whether or not a Backbond being granted by the Compryser the time that he did receive an Assignation whereupon he Comprysed or by a person having gotten a Disposition did affect the said Rights not only as to the Granters of such Back-bonds and their Representatives but likewayes as to Singular Successors And if the same should be Found to affect if it did affect only while the said Right was personal and before Infeftment but not after The Lords thought the said point to be of that importance as to the Consequence and Interest of the People that it was recommended that they should have their thoughts thereupon to the effect that the same may be decided with great consideration And accordingly this day the case being fully debated among themselves It was carryed and found by plurality of Votes That such Back-bonds do affect even as to a Singular Successor tho extra corpus Juris And albeit they be granted after the receiving of such Rights And that they affect Comprysings even after Infeftments has followed thereupon during the Legal but not after Diverse of the Lords did Argue and Vote against the said Decision and in special A. I. C. N. B. S. T Upon these Grounds 1. A Singular Successor does not succeed in universum Jus as an Heir but only in Jus Singulare And if the said Jus be simple and pure without any quality in corpore Juris any extrinsick quality or Deed may bind the Granter and his Heirs but not the Singular Successor who neither can nor is obliged to know and take notice of any quality that is not in the Right 2. The quality of a Right is an Accident of the same and Accidentis esse est inesse So that in Law where the same is not in corpore Juris it doth not affect the Right as to Singular Successors 3. Upon the Considerations foresaid Reversions and Bonds for Granting Reversions do not militate against a Singular Successor unless they be in corpore Juris or Registrate And tho there be an express Statute to that purpose yet it doth not follow a contrario where there is no Statute Back-bonds should affect seing the said Statute is made conform to the Common Law and is Declaratory as to Reversions being then most in contemplation of the Parliament but doth not derogate from the Common Law in other Cases 4. Back-bonds are upon the matter Reversions and do oblige only to make a Retrocession in favours of the Cedent and cannot operate more than if a formal Retrocession were made in favours of the Cedent which could not prejudge a Singular Successor unless it were intimate 5. It would be an irrepairable prejudice to the People and to Singular Successors who finding a Right pure without any quality are in bona fide to think that they may securely take a Right thereto And yet should have no remedy if upon pretence of Back-bonds and Deeds altogether extrinsick their Right may be questioned 6. As to the pretence of the prejudice to the People viz. That they are in use to grant Assignations in order to the deduceing of Comprysings thereupon and may be frustrate if the Back-bond should not affect the same is of no weight Seing they trust the Assigneys And it is their own fault if they Trust persons that doe not deserve Trust And they have a Remedy by intimateing the