Defender offers to prove uses to be done in the like case Which the Lords found relevant albeit the Intimation was not mentioned in the Designation Robert Dobby contra the Lady Stanyhil his mother Eodem die RObert Dobby pursues the Lady Stanyhil his Mother for an Aliment upon this ground that she being provided to an plentiful Liferent being an Annualrent of 2800. Merks yearly there remains nothing to Aliment him the Heir of free Rent being all exhausted by the Liferent and Annualrent of the Debt The Defender alleadged Absolvitor because there is no ground in Law nor Custom for an Aliment to the Heir except the Rents were exhausted by real burdens by Infeftment but here at the Defuncts Death there was only this Liferent which was not the half of the Rent and there was no Infeftment more 2dly Aliments is only competent to Minors the Pursuer is Major and may do for himself The Pursuer answered that it was alike whether the Debts were personal or real for if Apprysings had been used they would all have been real but the Pursuer did prevent the same by Selling a part of the Land at a great Rate which was all applyed to the Creditors and yet the Liferent and Annualrent of the Debt is more then the Rent neither is there any distinction in the Law as to Majors and Minors who were not bred with a Calling and therefore Carberry who was a man of age got an Aliment and Anthonia Brown got an Aliment from her Mother who had an Annualrent in Liferent and the Debts were all personal at her Fathers Death albeit some of them were Appryzed for before she got her Aliment The Defender answered that there was a sufficient Superplus because she offered to take the Lands or find sufficient Tennents therefore for 4300. Merks yearly which was a 1000. Pounds above her Liferent and would exceed the Annualrents of all the Debts The Lords found this last Defence relevant but did not proceed to determinâ whether an Aliment would be due where the burden was but by personal Debt Alexander Binny contra Margaret Binny Eodem die MArgaret Binny granted a Bond obliging her self to Enter Heir of Line to her Father and to Resign the Lands in Favours of her Self and the Heirs to be Procreat of her own Body which failzying to the Heirs of Alexander Binny her Father and obliged her self to do nothing contrair to that Succession and having Married William Brotherstanes by her Contract of Marriage nomine dotis she Dispones the Lands to him This Margaret was the only Child of Alexander Binnies first Marriage and there was an Inhibition used upon the Bond before her Contract of Marriage Alexander Binny being Son of the second Marriage and Heir of Line to his Father pursues the said Margaret to fulfil the Bond and to Enter and Resign the Land conform thereto and thereupon did obtain Decreet which being now Suspended It was alleadged that this being but an obligement to Constitute a Tailzy could have no effect to hinder her to Dispone to her Husband in name of Tocher which is the most favourable Debt or to Contract any other Debt which the Pursuer who behoved to be her Heir could never quarrel 2dly It was alleadged for the Husband that he could not be Decerned as Husband to consent to this Resignation contrair to his own Contract It was answered that this was not only a Bond of Tailzy but an obligement to do nothing that might change the Succession and so she could not voluntarly Dispone but the Husbands Provision might be Competent enough seing both she has the Liferent and the Children of the Marriage will succeed in the Feeâ and albeit the Pursuer must be Heir of Tailzy yet obligements in favours of Heirs of Tailzy are alwayes effectual against Heirs of Line in relation to whom the Heir of Tailzy is but as an stranger The Lords repelled the Reason and found the Letters orderly proceeded till the Wife Entered and Resigned with Consent of her Husband conform to the Bond seing there was Inhibition used before the Contract but they did not Decide whether this Clause would have excluded the Debts to be Contracted by the said Margaret or her Heirs upon a just ground without Collusion but found that she could not make a voluntare Disposition to exclude that Succession in respect of the obligement to do nothing in the contrair Eâphan Brown contra Thomas Happiland Ianuary 29. 1668. MArjory Brown being first Married to Happiland and thereafter to Robert Brown she Acquired Right to a Tenement of Land to her self in Liferent and Euphan Happiland her Daughter of the first Marriage in Fee which Infeftment is given by the said Thomas Brown her Husband being then Bailly for the time Agnes Happiland Dispones this Tenement to Thomas Brown Heir of the Marriage betwixt the said Umquhil Thomas Brown and Marjory Bruce and for the price thereof gets a Bond relative thereto Thomas Brown being Charged upon this Bond raises Reduction upon Minority and Lesion To the which it was answered there was no Lesion because the Disposition of the Land was an equivalent Onerous Cause It was answered that the Disposition was no Onerous Cause because the Lands Disponed belonged not to the Disponer but to the Suspender himself in so far as they were Conquest by Marjory Bruce while she was Spouse to his Father so that the Money wherewith she Acquired the same belonging to the Husband jure Mariti the Land must also be his unlesse it were condescended and instructed that she had Heretable Sums not falling within the jus Mariti wherewith this Right was Acquired It was duplyed that this was but a âaked Conjecture and Presumption which is sufficiently taken off by the Husbands giving Seising as Bailly It was answered that this was actus officij which he could not refuse but he knew that the Infeftment in favours of his Wife would accresce to himself The Lords repelled the Reasons of Suspension and Reply in respect of the Answer and Duply and found that the Fee of the Land belonged to the Wife and her Daughter and that there was no Lesion in giving Bond therefore Laird Aitoun contra Iames Fairy Eodem die THe Laird of Aitoun having bought a Horse from Iames Fairy pursues for repetition of the price and for entertainment of the Horse since upon this ground that he offered to prove by the Witnesses at the buying of the Horse that Iames Fairy promised to uphold him but six years old and that he was truly twelve years old The question was whether this was only probable by Oath or Witnesses But the Lords perceiving an anterior question how soon the Horse was offered back by the Pursuer they ordained him to condescend that very shortly thereafter he offered the Horse back otherwise they would not sustain the Processe John Papla contra the Magistrats of Edinburgh Ianuary 31. 1668. JOhn Papla pursues the present Magistrats of Edinburgh for
Debt due to him by Cheisly and he being nowayes particeps fraudis Cheislies Fraud or Circumvention cannot prejudge him for albeit Extortion vi majori be vitium reale that follows the Right to all singular Successors yet fraud is not and reaches none but participes fraudis both by the Act of Parliament 1621. and by the civil Law L. It was answered for Scot that albeit it be true that an Assigney for an Oâerous Cause cannot be prejudged by the Oath of his Cedent and consequently by no Circumvention probable by his Oath yet in Personal Rights an Assigney is in no better case then the Cedent nisi quoad modum probandi but what is relevant against the Cedent and competent to be proven either by Writ or Witnesses is competent against the Assigney so that the Circumvention against Cheisly being inferred by pregnant Evidences and Witnesses and not by his Oath it must be effectual against Thomson whose Name being filled up by Cheisly is in effect Cheislies Assigney for so all blank Bonds are commonly found by the Lords to have the same effect with an Assignation 2dly Assignies without an Onerous Cause even as to the Oath of the Cedent or any other consideration are in no better case nor the Cedent but here there is no Onerous Cause appears for which Cheisly transmits this Right to Thomson for the Bond âears not that for Sums of Money due by Cheisly to Thomson or any other Cause Onerous on Thomsons part that Scot should be obliged at Cheislies desire to pay Thomson but only that because Cheisly had Assigned a Process to Scot therefore Scot becomes obliged to pay to Thomson 3dly As there is no Cause Onerous instructed on Thomsons part so his own Oath de calumnia being taken renders the matter most suspitious by which he acknowledges he got the Bond from Cheisly and that Cheisly was not then his Debitor for so great a Sum as in the Bond but that by payments made to him and for him thereafter he became his Debitor in an equivalent Sum but Depones that he hath nothing to instruct the Debt nor no Note thereof in his Compt Book though he be an exact Merchant and Factor so that there is no Evidence or Adminicle of an Onerous Cause instructed And lastly Albeit Parties getting blank Bonds bearing borrowed Money from the blank Person whosoevers Name is filled up the Bond then bears the Sums borrowed from him whose Name is filled up and cannot be taken away but by his Writ or his Oath but this Bond bears only a Process Assigned by Cheisly and no borrowed Money or other Cause by Thomson and Thomson living in the same Town with Scot whom he knew and is commonly known to be a simple Person and Cheisly a subdolous he ought before accepting of the Bond to have acquainted Scot of the filling up of his Name and if he had any thing to say and cannot now pretend that he acted bona fide but either must be in dolo or in lata culpa quae dolo aequiparatur The Lords found that having considered the Tenor of the Bond and Thomsons Oath Thomson was in the same condition as to the relevancy and probation of the Reasons of Circumvention against Cheisly and therefore found the Libel Relevant against them both to annul the Bond the Apprizings and Infeftment and all that had followed thereupon Naper contra Gordon of Grange Feb. 12. 1670. IOhn Naper as Representing his Father did Pursue William Gordon of Grange as Representing Hugh his Father for payment of 2000. Merks due by the said Umquhile Hugh his Bond and upon the said Williams Renuncing to be Heir obtaind Adjudication of the Lands of Grange and others in so far as might belong to the said Umquhile Hugh his Debitor his Heirs and thereupon did Pursue the Tennents for Mails and Duties In which Action it was alleadged for William Gordon now of Grange that he stands Infeft by Disposition from the said Umquhile Hugh Gordon of Grange his Father for Onerous Causes and Sums of Money undertaken and payed for his Father which was found Relevant and to evite the same the said Iohn Naper raised Reduction of Grange's Right granted by his Father ex capite Inhibitionis raised against his Father upon the said Bond before the Disposition made to this Grange which Inhibition being produced this day fourtnight it was alleadged for Grange that the samine was null because the Executions buir not a Copy to have been lest at the Mercat Cross at the publication of the Inhibition which the Lords found Relevant and now the Pursuer insisted on this Reason that the Disposition though it buir Onerous Causes yet being after the Contracting of his Debt by a Father to a Son the Narrative bearing the Cause thereof is not Probative against a third Party but the same must yet be instructed Which the Lords Sustained and ordained Grange to produce the Instructions thereof William Lowry contra Sir Iohn Drummond Feb. 18. 1670. UMquhile Sir Robert Drummond of Meidup having Disponed the Lands of Scotstoun to Sir Iohn Drummond of Burnbank Mr. Iohn Drummond Writer in Edinburgh his Grand Nevoy intending to Reduce that Disposition as on Death-bed grants a Bond to William Lowry of 12000. Merks who thereupon having Charged the said Mr. Iohn to enter Heir in special to the Lands of Scotstoun to the said Sir Robert his Grand Uncle Apprizes from him all the Right of the Lands that might be competent to him if he were entered Heir and thereupon raises Reduction of Sir Iohn his Right as being granted by Sir Robert on Death-bed in prejudice of his nearest Heirs in whose place the Pursuer now is by the Apprizing It was alleadged for the Defender no Process upon any Charge to enter Heir against Mr. Iohn Drummond because he is not the nearest appearand Heir but has an elder Brother living The Pursuer answered that the said elder Brother had gone out of the Countrey 18. years agoe and was commonly holden and repute Dead likeas he produced a Missive of one Creiâhtoun his Commerad in the War abroad bearing the Circumstances of his Sickness Death and Burial Dated Iuly 6. 1667. It was answered that semel vivus semper presumitur vivus nisâ contrarium probetur and what was alleadged could be no probation but some probabilities of Death The Pursuer answered that the brokard is but presumptio juris and not presumptio juris de jure and therefore only transâert onus probandi which Probation may be valid without Witnesses by such adminicles as the Lords shall find sufficient which are here sufficiently alleadged viz. long Absence common Fame and a Missive Letter The Lords found that eighteen years Absence and being holden and repute Dead was sufficient Probation to take off the presumption of Life unless a stronger Probation for the Parties being on Life were showen then the naked presumption thereof Lauchlen Lesly contra Guthry Feb. 19. 1670. LAuchlen Lesly
was found not jure accrescendi to belong to the Surviver but ãâã Heir Substitute to the Deceassing without Children yet so as not to be lyable as Heir in solidum but quo ad valorem Iuly 3. 1666. Fleming contra Fleming A Clause in a Writ bearing a Narrative as a Testament and leaving such a ãâã Heir and Donator to such Tenenements and Assigning him to the Evidents with power to him after return to Recal was found effectual though not formal to inforce his Heir to perfect the same Ianuary 31. 1667. Henrison contra Henrison The same was renewed upon full debate November 4. 1667. and the being of the Writs in the granters hands after his Retuân was found a sufficient Evidence of Recalling it but its coming back in the hands of the other party was found not sufficient to Revive it but they were ordained to instruct how they came by it whether as delivered back again by the Granter or found amongst his Papers November 14. 1667. inter cosdem A Clause obliging a party to pay such a sum as being the Annualrent of such a sum without any obligation for paying the principal exprest was found not to imply an obligement to pay the principal as acknowledged due but was found to constitute the Annualrent perpetual and not for the Womans life though it exprest not Heirs and Assignâys February 2. 1667. Power contra Dykes A Clause in a Bond bearing a sum to be lent by a Father for himself and as Administrator for his Son aâd payable to the Father and after his decease to the Son but bearing that it was the Sons own Money not expressing how or from whom it came was âound to constitute the Son Feear and the Father Naked Liferenter February 14. 1667. Campbel contra Constantine A Clause disponing Lands was found to carry the Miln if the Lands were a Barony or if the Miln was not exprest in the Authours own Right otherways that it could not pass as part and perâinent February 15. 1667. Countess of Hume contra Tenents of Oldcambus and Mr. Rodger Hog A Clause in a Contract of Marriage whereby the Husband is obliged to take the conquest to the future Spouse in Conjunctâee and the Heirs betwixt them Which failing the Heirs of the Mans Body which failing the Wifes Heirs whatsoever was found not to constitute the Wife Feear upon the âailing of Heirs of the Mans Body but the Husband February 20. 1667. Cranstoun contra Wilkison A Clause in the dispositive part of a Charter Cum privilegio piscaudi in aqua c. was found not to be a sufficient Right of Salmond-fishing unless Salmond-fishing had been thereby possesâ forty years without interruption and so it is only a Title for Prescription February 27. 1667. Earl of Southesk contra Laird of Earlshall A Clause in a Bond bearing sums to be payed to a Man and his Wife and their Heirs beaâing Annualrent though no Infeftment followed was found to give the Wifes Heirs no share seing the Money appeared not to have been hers and was presumed to be the Mans and he surviving did Revock the Substitution as a Donation betwixt Man and Wife Iune 19. 1667. Iohnstoun contra Cuninghame A Clause in an Assignation by a Father to his Daughter bearing a power to alter during his Life was found not to take effect by an Assignation to a third party who instantly granted a Back-bond bearing his Name was but in trust to do diligence and obliging himself to denude in favours of the Father his Heiâs and Assigneys but was not found to operate for the Fathers Heir but for the Daughter his Assigney Iuly 17. 1667. Scot contra Scot. A Clause in a Tack setting 14. Aâkers of Lands presently possest by the Tacks-man was found not to limite him to 14 Aikers of any present Measure seing he had possessed still since the Tack these 30. years albeit it was alleadged that besides 14. Aikers there were six Aikers severally âenned and possest by different persons before that Tack Iuly 19. 1667. Daeâ contra Kyle A Clause in a Bond bearing a sum borrowed from Husband and Wiââ and payable to the longest liver of them two in Conjunctfee and to the Heirs betwixt them or their Assigneys which failing to the Heirs or Assigneys of the last liver was found to constitute the Husband Feâar and the Wife Liferenter albeit she was last liver and the Heirs by the last Clause were but Heirs of provision to the Husband in case the Heirs of the Marriage failed Ianuary 26. 1668. Iustice contra Barclay his Mother A Clause in a Bond whereby a Woman obliged her self to enter heir of Line to her Father and to resign certain Lands in favours of her self and the heirs of her body which failing to the heirs of her Father and obliged her self to do nothing contrary to that Successionâ whereupon Inhibition was used before her Marriage was found effectual against her and her Husband whom she Married thereafter and disponed the Lands to him and his heirs as being a voluntar deed without an equivalent cause onerous albeit by the said Bond of âailzie the heir of provision behâved to be the heir to the Woman her self without discussing whether deeds done for causes onerous without collusion would be effectual against the said heir of provision Ianuary 28. 1668. Binnââ contra Binnie A Clause in a second Contract of Marriage that the heirs of the Marriage should have right to Tacks acquired during the Marriage was found to extend to a new Tack obtained of Lands then possessed by the Father unless he had a Tack thereof before in Writ which if not expyred the new Tack would not be esteemed conquest if the new Tack were given for the old Iuly 3. 1668. Frazer contra Frazer A Clause in a Testament leaving a Legacy to a second Son in satisfaction of all he could befal by his Fathers deceass was found not to be in satisfaction of a debt due by his Father to that Son as having uplifted a Legacy left to him by his Mothers Father both not being above a competent provision by a Father in his condition to his Son December 15. 1668. Winâââam contra Eleis A Clause in a Contract of of Marriage providing all the Husbands Goods and Gear acquired during the Marriage to the Wife for her Liferent use was found to be with the burden of the Husbands debt and only to be meaned of free Gear and not to exclude the Husbands Creditors at any time contracting December 23. 1668. Smith contra Muire A CLAVSE OF CONQVEST in a Wifes Contract of Marriage who was competently otherwayes provided was âound to carry the Lands conquest with the burden of a sum which the Husband declared under his hand to be a part of the price though the same would not hold in the burdening of heirs of conquest December 20. 1665. Lady Kilbocho contra Laird of Kilbocho This sum was due to the Seller of the
stat sententia dubius est eventus litis neither can Reduction which is a petitory Judgement sist the Pursuers Process which is a possessory Judgement upon pretence of prejudiciallity otherwise Possession might still be inverted upon such pretences Nor can the Earl be put from his Possession thereby Especially for the years preceeding the intenting of the Reduction The Lords Repelled the Defense as to the years ante litem motam by the Reduction but Sustained it for the years since in respect the Earls Possession was not clear and that the Valuation was exorbitant near as great as the Stock Hellen Hepburn contra Hamiltoun of Orbestoun December 12. 1661. HEllen Hepburn as Executrix to her Father Humbie Pursues Sir Iames Hamiltoun of Orbestoun for payment of a 1000. merks due to her Father by Bond. The Defender alleadged Absolvitor because there being a Bond of 10000. pounds granted by Balhaven Humby Prestoun and Orbestoun for the use of the late Duke of Hamiltoun but there being nothing to Instruct that it was the Dukes Debt yet there was a Transaction with the Dutches of Hamiltoun for a lesser Sum whereof Balhaven Prestoun and the Defender had payed their part by which Transaction the Pursuers Tutrix and Overseer did agree to quite this Bond in respect that her Father was acquited of any share of the Bond of 10000. pounds The Pursuer answered First That the Defense ought to be Repelled because being but a Verbal Agreement before Writ was subscribed either Party might Resile Secondly The Transaction cannot be Instructed there being no Write and Witnesses are no competent neither can the Tutrix Oath prove against the Pupil The Defender answered to the first that the Transaction being pactum liberatorium it required no Write and so there was not locus penitentiae And as to the Probation of the Transaction though Tutors Oath of Knowledge of any Debt of the Pupils Predecessors will not prove against the Pupil because the Tutor is singularis testis and not in officio But a Tutors Oath as to Deeds done by himself in officio would sufficiently prove the same The Lords thought there was not locus penitentiae from the Traâsaction though but Verbal but as to the manner of Probation they ordained the âutrix and overseers Oaths to be taken ex officio Gordoun of Gight contra Abercrombie of Birkbog Eodem die SIR Alexander Abercâombâe of Birkbeg having obtained Decreet of of Ejection against Sir George Gordoun of Gight for Re-possessing him in certain Lands and paying the double Rent for the violent Profits Gight Pursues Reduction of the Decreet on these Reasonsâ First because there was no Law nor Practick to make the violent Profits of Lands without Burgh to be the double of the Rent which is only competent by Custom in prediis urbanis Secondly The Ejection was prescribed not being intented within three years conform to the Act of Parliament Thirdly Gights Defense of Entring in vacuum possessionem was only found probable scripto vel juramento whereas being facti it was probable by Witnesses The Lords Repelled the First and Second Reasons as Competent and emitted in the Decreet and as to the Third The Decreet did bear the alleadgence in the Decreet to be Gights entring into void possession with consent of Partie which consent not being qualified by any palpable fact was not Probable by Witnesses Iames Hamiltoun contra the Tenents of Oversheâls December 13. 1661. JAmes Hamiltoun Merchant in Glasgow having right to two apprysings of the Lands of Oversheils Pursues the Tennents for Mails and Duties and after Litiscontestation Iohn Rollane Writer Compears for his interest and produces an Apprysing at his Instance with a Charge against the Superiors It was alleadged he could not be admitted in this state of the Process The Lords admitted him in respect he craved no alteration to be in the Litiscontestation but concurred therein and craved Preference to what should be found due thereby The said Iohn being admitted alleadged he ought to be Preferred because he had charged the true immediate Superiour whereas the other two Apprysers had taken Infeftment as if the Lands had holden immediatly of the KING It was answered for Iames Hamiltoun that he ought to be preferred because he was Infeft long before Iohn Rollane and supposing his Infefment were not of the immediate Superiour yet being in Possession by vertue thereof five or six Years he hath the benefit of a Possessorie Judgement and his Infeftment cannot be taken away without Reduction The Lords preferred Iohn Rollane and granted not the benefit of a Possessorie Iudgement without seven years Possession Iohn Boyd contra Laird of Niddrie and Edmonstoun Eodem die JOhn Boyd as Assigny Constitute to a Bond of a thousand merks by Wolmet charged Niddrie the Debitor who Suspends on double Poynding In which Compearance was made for Iohn Boyd who having declared upon Oath that the Assignation was to his behove for the satisfaction of the Sum of fourteen hundred pounds and that the remainder was to Wolmets own behove according to which he had granted back bond to Wolmet and thereafter granted a second back bond to Major Bigger oblidging him to make the Sum forthcoming to Biggar which was done before any Arrestment but depones that he knows at that time his first back bond was given and that a Discharge of his first back bond produced was by a mistake keeped up by Major Biggar and not delivered up to him till within this few days upon this Oath the Laird of Edmonstoun who had arrested all Sums due to Wolmet in Niddries the Suspenders hand in Iune 1658. alleadged That the ought to be preferred to Biggar because it is clear by the Oath that the superplus of the Sum was to Wolmets behove and he having arrested it before the discharge of Iohn Boyds first back bond was delivered to Iohn Boyd or expresly delivered to Iohn Boyd's behove or otherwayes that the first back bond were re-delivered no deed that Iohn Boyd could do without Wolmets expresse consent could prejudge Wolmets Creditors It was alleadged for Biggar that albeit the first back bond was not delivered back to Iohn Boyd before the Arrestment nor the discharge delivered to him yet Wolmet having subscribed the discharge and delivered it albeit it came not to Iohn Boyds hands it was sufficient to take away the first black bond The Lords preferred the Arrester and found the discharge could operat nothing unlesse it were delivered to Iohn Boyd or some Person to his behove before the Arrestment for they thought if discharges by Creditors put in a third Parties hands not delivered to the Debitor should be sufficient it would eâervart all Arrestments unless the deliverie were exprest to the Debitors behove Homes contra Iohn Bonnar December 14. 1661. MAry and Homes as Donatar to the Escheat and Liferent of Umquhile Iohn Home pursued Iohn Bonnar for Compt Reckoning and Payment of the Sum of 16000. merks due to the Rebel
Few-dutie produced he acknowledged the Pursuer to be Proprietar 2dly If any such Back-bond was no way granting the same he offered him to prove that it was Conditional so soon as the said Umquhile Robert Lord Kirkcudbright should require Ita est he has never required The Defender alleadged he had done the equivalent because in a Double Poynding formerly pursued be the Tennents he had craved Preference and the Pursuer alleadged upon the Condition of Requisition in the Back-bond and also that be the Back-bond the granter and his Wifes Liferent was preserved whereupon the Defender was excluded The Lords ââund the Alleadgeance of the said Double Poynding was not Equivalent to the Requisition and therfore found the Replyes Relevant and Assigned a day to the Defender to produce the Back-bond and to the Pursuer ââââprove the Qualitieâ thereof and so found the Reply not to acknowââge the Defense but reserve it to either Partie to alleadge contra âoducenda and found the Personal Obligdement sufficient to dâbar the Purââââ albeit the Defender had no other Real Right seeing thereby she was oblidged to grant a Real Right to the Defender Alexander Barns contra Applegirth Ianuary 1. 1662. ALexander Barns having Conform to the Act made by the Iudges obtained Letters of Horning Summarily at his Instance as Heir to his Brother Iames Bârns upon production of his Retour and a Bond granted by Iohnstoun of Applegirth and thereupon having Denunced him and Apprized his Lands Applegirth Suspends on this Reason because the foresaid Act of the Iudges was now Void and by the late Act of Parliament confirming their Judicial Proceedings liberty is granted to quarrel and reduce them upon Iniquity and this was Iniquitie to charge him Summarily contrair to Law The Charger answered non Relevat because he followed the Order in use at that time and the liberty of Quarrelling is for Unjustice in the Matter and not in the Order of Procedor for then all their Debates would be null because they proceeded not upon Continuation and Letters The Lords sustained the Charge as a Libel to the effect the Suspender might have his Defenses if he any had to be proven not iâstantlie but upon Terms but declared the Apprysing should stand valid for whatsomever was found due but prejudice to the Horning as accords Sir Alexander Hoom of St. Bathanes contra Orr and Pringle Ianuary 3. 1662. SIr Alexander Hoom of Saint Bathanes having pursued Improbation and Reduction upon Inhibition against Iohn Orr and Wateâ Pringle and insisted for all Writs of the Lands in Question made to the Defenders Predecessors and Authors of the Lands in Question and the Defender having alleadged no Process for Writs made to his Authors unlesse they were called and having condescended particularly on the Authors to be called The Pursuer offered him to prove that these Authors were fully denuded in favours of the Defender and that the Writs were in the Defenders own hands The Defender answered non Relevat though they were in his hands because his Authors being lyable for warrandice ought to be called to defend there own Rights The Pursuer answered the Defender might intimate to them the Plea The Defender answered he was not oblidged to Intimate the Plea but the Pursuers to call the Authors in this Case the Summonds was sustained for his Authors Writs in Anno one thousand six hundred fiftie nine Years And now the Pursuer insisting for the Defender taking a second time to produce The Defender having a reviewe of the said Act and Interlocutor The Lords reponed the Defender and would not sustain the Pursuit or Act as to the Authors Rights uncalled Tippertie contra his Creditors Eodem die Innes of Tippertie being charged by several of his Creditors Suspends and alleadged payment made by the Suspenders Son to them The Chargers answered non Relevat because they declare the Charge to be to that Sons behove who payed them so that they must alleadge it was payed by his means The Suspender Replyed That seeing they declared it to be to his Sons behove the payment was sufficient because he offered him to prove by a Transaction the Son was oblidged to pay his Debts The Charger answered denying any Transaction if it were proven the Suspender behoved to instruct his part of it performed The Lords found the Reasons and Reply relevant reserving the said alleadgance against the Transaction when produced James Seaton contra Anothonie Rosewall Jannuary 4. 1662. JAmes Seaton and others pursue Anthonie Rosewall to hear it found and declared That two Apprysings to which he had right were fully Satisfied by his and his Authors Intromission within the Legalls respective in the Compt. The Defender alleadged he was only comptable according to his intromission conform to the Act of Parliament one thousand six hundred twenty one anent Apprysings and not according to a Rental of the Lands as they payed when he entred The Pursuers answered that that they could not charge him by his Yearly Intromissions which they could not know but he behoved to charge himself with the Rent of the Lands as they payed at his entrie thereto and if any Deductions or Defalcations were in subsequent Years by necessary setting of the Lands at a lower Rate poverty of the Tennents or waste he behoved to condescend there upon and their the Reasons and Veriâty thereof for in Law an Appryzing giving jus pignoris pratorij the Appryser is comptable for his Diligence having once entered in Possession and thereby excluded the Debitor and Con-creditors from the Possession It were against Law and Conscience to say That if he should abstain and suffer the Tennents to keep the Rent or Depauperat or the Lands to be waste without any Diligence that his Legall should thereby expire and the Debitor and Creditor should be excluded as was found in the Case of the Earl of Nithisdale and Countess of Buckcleugh and was several times so found be the Lords before The Lords found the Defender comptable by a Rental as the Lands payed the time of his Entry but Prejudice of his just Defalcations he clearing a reasonable Cause thereof and proving the truth of the same for they thought that albeit Apprizers are only comptable for their Intromission That is only for such parts of the Lands as they intend only to possesse and not for these they never possest yet in so far as they once entred to possesse they must do Diligence It was further alleadged that no allowance ought to be given to the Defender of a Composition he had given to the Superiour in respect a prior Appryzer had given a Composition before and so he was oblidged for none The Defender answered that both the Prior and Posterior Composition was within a Years Rent which was due to the Superiour which the Lords allowed seeing it was not alleadged that the Composition of a Years Rent was discharged by the Superiour but only according to the Custome of the Burgh where the Lands
is special enough bearing the Ware of the Shop to be Silks Stuffs and others worth 4000. merks and the Confirmation alone Constitutes the Property unto the Executor because he is Haeres mobiliâm and the Property being before in hereditatae jacentâ ipso facto by the Confirmation it is Established in the Executor Secondly by the constant practice of this Kingdom there could no second principal Confirmation but only ad oâissa and she could never Confirm that which the first Executor had Confirmed The Defender answered that by Act of Sederunt of the Judges in the Usurpers time all Executors Confirming within six Moneths after the Defuncts Death were ordained to come in together and therefore it was then the Custom that all Confirmed principally the same things seeing they could get no more then what was in their Confirmation And the Defenders Confirmation being at that time must be sustained The Pursuer answered that the Defender cannot have the benefit of that Act of Sederunt because she Confirmed not within six Moneths after the Defuncts Death The Defender answered she Confirmed within six Moneths or six or seven Dayes more which is an inconsiderable difference The Lords preferred the first Executor to the Goods in the Shop Mr. Iohn Veach contra Byel of Bassinden Eodem die MR. Iohn Veach as Assigney by Iohn Edgar of Wedderlie to a Reversion pursues Declarator against Byel of Bassinden the Wodsetter who alleadged Absolvitor because the premonition is null being by a Procurator and not bearing the Procuratory produced neither the Pursuers Assignation to the Reversion The Pursuer answered non relevat unless it were alleadged that they had been demanded at that time and had not been shown Secondly If need beis he offers him to prove by the Defenders oath that the Procuratory was then shown The Defender answered the Procuratory is not yet produced and the Pursuer was oblieged to have shown it then albeit not called for The Lords sustained the Order the Pursuer reproducing the Procuratory and proving by the Defenders Oath that the Procuratory was then shown Alexander Colquhoun contra his Creditors Eodem die ALexander Colquhoun in Glasgow pursues Liberation supercessione bonorum The Defenders alleadged Absolvitor because they offer them to prove that the Pursuer did wittingly deceive them in borrowing sums and taking of Ware from them after he knew that he was insolvendo and Bankrupt The Pursuer answered nonrelevat against Liberty which is a favourable Cause and can be stopped by nothing but fraudulent Deeds since the Incarceration or offering of Aliment The Defenders craved that if the Lords inclined to grant Liberty that the Pursuer might be decerned to sit upon the Dyver-stone and wear the habit The Pursuer answered that was long since out of Custome The Lords before answer ordained the Pursuers oath to be taken upon the Defense whether he did contract these Debts after he knew himself insolvent and bankrupt and they resolved if it was so found they would not grant him Liberty without sitting upon the Dyver-stone and wearing the Habite Laird of Polwart contra Hooms Ianuary 21. 1662. THe Laird of Polwart pursues a Declarator of Redemption against Hooms who alleadge Absolvitor because the Reversion was not fulfilled which bore the sum of a 1000. merks and a Tack for 19. years after the Redemption The Pursuer answered the Alleadgence ought to be Repelled because the Lands Wodset is worth 400. merks by year and the Tack-duty is only four pounds and so it is an Usurary Paction whereby the Wodsetter will have much more then his principal sum and his Annualrent and so it is null by the common Law and by special Statute Par. 1449. cap. 19. bearing that when Wodsetters take Tacks for long time after the Bond be out quite such Tacks shall not be keeped after Redemption unless they be for the very Mail or near thereby The Defender answered First That Statute is but an Exception from the Immediat preceeding Act of parliament in favours of Tennents that their Tacks shall not be broken by singular Successors buying the Land and therefore is only understood in that case when the Wodset Lands are bought from him that hath right to the Reversion by a singular Successor but this Pursuer is Heir to the granter of the Wodset 2ly That Act is long since in desuetude 3ly Whatever the Act might operate amongst strangers yet it is clear by the Contract of Wodset produced that the Wodset was granted by the Laird of Polwart to his own Brother and so must be Repute to be his Portion Natural and the eldest Brother might well grant a nineteen years Tack to his youngest Brother albeit there had been no Wodset Likeas in the Wodset there is Reserved the Liferent of a third Partie who lived thirty six Years thereafter during which time the Wodset got no Rent The Lords found the Defense and Reply relevant and Ordained no Declarator to be extracted till the Tack were Produced and given up to the Wodsetter Laird Balvaird contra Creditors of Annandail Eodem die THE Laird Balvaird As Heir of Tailzie to David Viscount of Stormont in the Lands of Skun Pursues the Heirs of Line of the said David and Mungo Viscount of Stormont and several their Creditors Lybelling That by an Infeftment of Tailzie of the saids Lands made by the said David Viscount of Stormont It is expresly Declared and Provided That none of the Heirs of Tailzie shall do any Deed prejudicial to the Tailzie or contract Debt whereby the Tailzie may be altered otherwayes the Debt so Contracted shall be null and the Contracter shall ipso facto lose his Right of Propertie which shall belong to the nearest Person of the Tailzie and subsumes that the late Earl of Annandail last Heir of Tailzie Contracted Debts which might effect the saids Tailzed Lands and concludes that it ought to be Declared that thereby he incurred the Clauses itritant in the Tailzie and lost his Right of Propertie and that all the Bonds Contracted by him and Appryzed upon are null quoad these Lands and that the Pursuer as nearest Heir of Tailzie may enter Heir in these Lands to David and Mungo Viscounts of Stormont and enjoy the same free of any Debt Contracted since the Tailzie The Creditors alleadged no Process to Annul their Bonds and Apprysing hoc ordine by way of Declarator but the Pursuer must via ordinaria Reduce in which Case the Creditors will have Terms granted them to produce the Writs called for to be reduced which Priviledge being in their favour ought not to be taken from them in this extraordinar unformal way The Lords repelled the Defense and sustained the Summons in respect there was no Bond craved to be produced or simplie reduced but only that any Bonds granted to the Defenders since the Tailzie are null and all following thereupon as to the Lands in Tailzie which is no more then that they affect not the Lands in the Tailzie
Infeftment was only base not cled with Possession and that the Defenders Title was by another Party Possessing and publictly Infeft before his Fathers Death Which the Lords found Relevant Iames Allan contra Iames Paterson Iune 17. 1663. JAmes Allan charges Iames Paterson as Cautioner in an Indenter for a Prentise set to the Charger for five years and insists upon that Article of paying two dayes wadges for ilk dayes absence and subsumes that the Prentise left his Service after the first two years and was absent three years The said Iames Paterson Suspends on this reason that it must be presumed Collusion betwixt the Charger and his Prentise that having gotten the Prentise Fee and not learned him the Trade he had suffered him to escape never making intimation to the Suspender that he might have brought him back to his Service while now that he is out of the Countrey and not knowing where The Charger answered that there was nothing to obliege him to make such intimation neither could a sufficient presumption of Collusion be sustained The Lords found the Letters orderly proceeded either while the Cautioner caused the Prentise Re-enter and serve out his time or otherways payed fifty pound for damnage and interest to which they modified the Charge Margaret Fleming contra Iames Gilleis Iune 18. 1663. MArgaret Fleming being Infeft in an Annualrent of 700. merks out of Houses in Edinburgh in Liferent with absolute warrandice from all dangers perils and inconveniencies whatsomever pursues Declarator against the said Iames Gilleis as Heretor for declaring that her Annualrent should be free of all publick burden since the rescinding of the Act of Parliament 1646. whereby Liferenters were ordained to bear proportional part for their Annualrents with the Heretors The Defender answered the Libel was not Relevant for albeit the Act of Parliament was rescinded the justice and equity thereof remained that whatever burden were laid upon Land shouldly proportionably upon every part therof and every profit forth of it Which Defense the Lords found Relevant and Assoilzied Francis Hamiltoun contra Mitchel and Keith Eodem die SIr Alexander Keith of Ludquharn being oblieged by Bond to Robert Mitchel in Leith for the price of certain Bolls of Victual was arrested in Leith till he found Francis Hamiltoun Cautioner as Law will and both being pursued on the Act raised Advocation on this reason that the Baillies of Leith had unjustly forced him to find Caution as Law will he not being dwelling in Leith nor Leith not being a Burgh Royal but a Burgh of Barony It was answered that the priviledge and custome of the Town of Edinburgh was to arrest within Leith and all other priviledges and pendicles thereof The Lords found that it behoved to be condescended in what place of Leith Ludquharn was arrested for the Peer of Leith was a part of the Burgh Royal of Edinburgh and was served by a Bailie of Edinburgh called the Water Baillie and if he was arrested there it was valid but the rest of Leith is but a Burgh of Barony and in that part thereof the Baillie is called Baron Baillie it were not valid Euphan Hay contra Elizabeth Carstorphine June 19. 1663. THe said Euphan having obtained Decreet against the said Elizabeth for certain Furnitur to her House She suspended on this reason that her Husband was not called The Charger offered to prove in âortification of her Decreet that her Husband was 20. years out of the Countrey and she repute as Widow Which the Lords found Relevant George Reid contra Thomas Harper Eodem die THese Parties competing in a double Poinding George Reid craved preference because he was assigned to the Mails and Duties by Thomas Mudie Heretor of the Land Thomas Harper alleadged that he had arrested the Duties upon a Debt owing to him by William Mudy Father to the said Thomas and any Right Thomas had was fraudulent and null by exception by the express words of the Act of Parliament 1621. being betwixt Father and Son without any onerous Cause and he ought not to be put to Reduce in re minima his Debt being within a 100. pound The Lords found he behoved to Reduce conform to their constant Custom in Heretable Rights Ferguson contra Ferguson June 23. 1663. UMquhil Ferguson in Restalrig having a Tack set to him by the Lord Balmerino for certain years his eldest Brother Son as heir of Conquest and his youngest Brother Son as heir of Line competed for the Mails and Duties of the Lands The Lords found the Tack to belong to the Heir of Line albeit it was Conquest by the Defender Mcdowgal contra Laird Glentorchy June 24. 1663. Mcneil having Disponed certain Lands to Mcdowgal wherein he was Heir apparent to his Goodsyrs Brother oblieged himself to Infeft himself as heir therein and to Infeft Mcdowgal at least to renunce to be heir to the Effect Mcdowgal might obtain the Lands adjudged whereupon Mcdowgal having raised a Charge to enter heir Mcneil renunces and thereupon Mcdowgal craves the Land to be Adjudged and Glentorchy Decerned to receive and Infeft him Glentorchy alleadged that he could not receive him because he had right to the Property himself unless the Pursuer condescend and instruct his authors in whose place he craves to be Entered had Right The Pursuer answered that lie needed to instruct no Right nor was he oblieged to Dispute the Superiours Right but craved the ordinar course to be Entered suo periculo with reservation of every mans Right and the Superiours own Right as is ordinary in Appryzings and Adjudications The Defender alleadged that albeit that was sustained in Appryzings where the Superiour gets a years Rent and though it might be allowed in ordinar Adjudications proceeding upon a liquid Debt favore creditorum yet not in such a Case as this where the Vassals apparent Heir Dispones and oblieges himself to Renunce of purpose to Charge his Superiour The Lords found no Processe till the Pursuer instructed his Authors Titles But an Infeftment being produced he was not put to Dispute the validity thereof in this instance Menzeis contra Laird Glenurchy Eodem die THe Daughters of Mr. William Menzeis as Executrix to him pursues Glenurchy for payment of a Bond due to their Father he alleadged minority and Lesion and that he had Reduction thereupon depending The Pursuers answered no Lesion because this Bond being granted to their Father for his Stipend by the Defender who was Heretor of the Land he was not leased because as Heretor he was lyable for the Stipend The Defender answered that his being Heretor could not Obliege him because his Grand-father was then living whose Liferent was reserved in his Disposition who and the intrometters could only be lyable Stipends not being debita fundi and it were of very evil consequence if the Heretor were lyable during the whole life of a Liferent The Lords found that there being a Liferenter the Heretor was not lyable and therefore sustained
Blank-bond had before the Arrestment seen the Blank-bond filled up and so had deponed or could depone that the time of the Arrestment the Debitor saw himself to be Debitor to another person filled up in the Blank than he for whose Debt it was Arrested for in that Case as the first Creditor that got the Blank-bond might have caused his Debitor retire that Bond and give a new one before any Arrestment so the showing of the filling up of the Blank was equivalent especially if the Debt could be proven no otherwayes but by the Deââtors Oath This Case was not debated nor was the hazard considered that the Debitors Oath might prefer one Partie to another nor was the case alike to a renewed Bond because a renewed Bond would bear a new date and different Witnesses that saw the new Creditors name filled up and would not depend upon the single Testimony of the Debitor Barbara Skeen and Mr. David Thors contra Sir Andrew Ramsay November 14. 1665. BArbara Skeen being provided by her Contract of Marriage with Umquhile David Ramsay to 18 Chalders of Victual or 1800 merks her Husband having acquired the Lands of Grange Muire worth 10 Chalders of Victnal she pursues Sir Andrew Ramsay as Heir to his Brother to make her up the superplus The Defender alleadged absolvitor because he offered him to prove that the said Barbara stood Infeft in the Lands of Grange Muire upon a Bond granted by her Husband which Bond bears In full satisfaction of the Contract of Marriage by Vertue of which Infeftment she having no other Right she had possest five or six years after her Husbands death and thereby had accepted that Right and had Homologat the same It was replyed that the Bond being a Deed of the Husbands a Clause foisted thereinto so far to the detrement of his Wife and the Infeftment not being taken by her but by an Acturney her possession cannot import Homologation thereof because Homologation being a Taâite consent is not inferred but where the Homologator cannot but know the Right Homologat and can do the Deeds of Homologation no otherwayes but by vertue of that Right neither of which holds here because the personal oblidgement in the Contract was a ground for the Wife to have continued her Husbands possession and would have excluded his Heirs if they had quarrelled and not only the Clause must be presumed to be without the Womans knowledge but the Bond it self and the Infeftment especially considering the simplicity of Wives and their confidence in their Husbands who if this were sustained would easily deceive them It was duplyed for the Defender that he offers him to prove that the Pursuer did not continue her husbands possession but did begin Possession her Husband being never in possession before his death and that she set two several Tacks expresly as Liferenter and the third with consent of Mr. David Thors her Husband being an Advocat and so she cannot be presumed to have been ignorant but on the contraire she must bepresumed to have known the Right and could never denominat her self Liferentrix by a personal oblidgement to Infeft her in so much Victual and Money without mentioning any Land in particular and her acceptance though to her detriment may be the more easily presumed because she had two Children surviving her Husband in whose favour the Restriction did accresce and her Husband did secure her in all that he had but now ex post facto the Children being dead she could not return upon Sir Andrew her Husbands Brother contrare to her Homologation The Lords sustained the Defense and Duply for they thought albeit ignorance might be presumed in a Wife de recente intra annum luctus yet she having continued for so many years and doing so many deeds expresly as Liferenter and that the Bond was not clandistinely lying by her Husband but in a third Parties hand who had taken the Infeftment they thought in that case ignorance was not to be presumed but knowledge Wat contra Russel November 16. 1665. JEan Wat being provided by her Contract of Marriage to certain Lands and Infeft therein the Contract contains this Clause that she shall Aliment the Bairns of the Marriage after the Fathers death and in case she marrie again she shall restrict her self to six hundred merks and the superplus shal remain to the Bairns for their Aliment hereupon she pursues Robert Russel and the other Tennents for the Mails and Duties of the hail Liferent Lands who alleadged 1. That she was restricted to six hundred merks and could crave no more especially now being married to a second Husband compearance was also made for the only Child of the Marriage who claimed the benefit of the superplus by vertue of the Clause in the Contract It was alleadged further for the Defenders that they were Creditors to the Husband before the Contract of Marriage and in their Tacks had a Clause bearing That they should retain their Tack duties while they were payed and upon their Bonds they had also Apprized from the Child as lawfully charged to enter Heir all Right he had to the Lands So that if the superplus belong to the Child proprio jure it now belonged to the Defenders as appryzers They had also raised Reduction of the Clause of the Contract in favours of the Children as being granted by a Father in favours of his own Children after Contracting of their Debt and so was fraudulent and Reduceable by the Act of Parliament 1621. Against Bankerupts It was answered for the Child that as for the Appryzing and Decreet against him as charged to enter Heir he had Suspended and raised Reduction and craved to be reponed and produced a Renounciation offering to renounce all Right he could succeed to as Heir to his Father but prejudice of this Aliment which belonged to him proprio jure as a Restriction granted to him by his Mother and as to the Reason of Reduction upon the Act of Parliament There was here neither Fault nor Fraud their being no Law to hinder a Husband to give his Wife what Joynture he pleased which was never compted in defraud of prior Creditors nor is their any Restriction or proportion thereof but as the Parties agree which is always sustained in favorem dotium matrimonij and the Wife might take what Liferent the Husband was pleased to give her there was nothing to make her to restrict her self in favours of her Children for an aliment with restriction is no Deed of the Father but of the Mother It was answered for the Defenders that the reason of Reduction stood relevant seing in this case there was manifest Fraud in so far as this Liferent was exorbitant and unproportionable to the Fathers Estate whose hail Lands being only worth 1000. merks and having nothing but the Tocher which was 6000. merks he Infefts his Wife in the hail and yet restricted her to 600. merks and provided the rest to his Children and
Law and exhausted the Benefice It was answered for the Pursuer that he oppones the Acts of Parliament requiring only Confirmations of Kirklands and albeit the Duties of this Office affects the Lands nihil est for if the Abbay had Thirled the Lands of the Abbacy to a Miln without the Abbacy for a Thirled Duty of a far greater value then the Duties of this Office the constitution of that Thirlage required no Confirmation The Lords Sustained the Pursuers progress and Repelled the first Alleadgence and also Repelled the last Alleadgence and found no necessity of Confirmation of the Office and Duties thereof aforesaid whether the samine were holden Feu or Ward but did not cognosce whether the same was Feu or Ward c. albeit that was contraverted neither whether Infeftments of Kirk-lands holden Ward needed Confirmation or no. âcontra Earl of Kinghorn Ianuary 23. 1666. ãâ¦ã having pursued the Earl of Kinghorn upon a Bond granted by his Father He proponed Improbation by way of Exception which was sustained and a Term assigned to prove and that same Term to the Pursuer to bide by his Bond. The Defender supplicat that seing the Act was not extracted albeit the Term was come that he might have yet liberty to propone payment It was answered he could not because exceptio falsi est omnium ultima after which no other could be proponed much less after the Term was come and the Pursuer come to bide by the Write Yet the Lords sustained the Defense of Payment Colonel James Montgomery and his Spouse contra Steuart Ianuary 24. 1666. MArgaret Mcdonald and Colonel Iames Montgomery her Spouse pursue a Declarator against Steuart Oye and appearand Heir to umquhil Sir William Steuart to hear and see it found and declared that umquhil Dam Elizabeth Hamiltoun Spouse to umquhil Sir William had Right to certain Bonds and House-hold Plenishing from Sir William and that the said Margaret had Right thereto from the said Dame Elizabeth by her Assignation and that the sums and Goods were Moveable and thereby the Assignation granted thereto albeit on death-bed was valid It was condescended on that the Bonds were Moveable by a Charge of Horning It was answered that the Charge was but against one of the Cautioners which was not sufficient to make it moveable The Lords Repelled the Alleadgence Eleis of Southside contra Mark Cass of Cockpen Eodem die ELeis of Southside pursues Cass as Heir to Mr. Richard Cass or as being charged to enter heir to him Compearance is made for Cockpen who was a Creditor to the Defender and had appryzed his Lands and alleadged no Process because the Pursuer pursues as Assigney The Assignation being his Title is posterior to the Charge to enter Heir or Summons which are raised not in the Cedents Name but in the Assigneys It was answered for the Pursuer that Cockpen could not object this because he was Curator to the Pursuer and had appryzed the Lands and proponed this alleadgence of purpose to exclude this Pursuer from coming in within year and day because it this Summons were cast the Defender being now out of the Countrey before a new Charge to enter Heir could proceed upon 60. dayes and Citation upon 60. dayes and the special Charge upon 60. dayes the year would elapse It was answered that Cockpen had never acted as Curator and that this Summons was raised by the Pursuer himself after his Majority who was Major more then a year ago It was answered that the Pursuer had but very lately recovered his Writs from his Curators though he used all Diligence and was forced to transume against some of them The Lords sustained the Summons in respect Cockpen had been Curator and so near the time of Minority Earl of Eglingtoun contra Laird of Cuninghame head Ianuary 27. 1666. THe Earl of Eglingtoun pursues the Laird of Cuninghame-head for the Teinds of his Lands conform to a Decreet of Valuation The Defender Alleadged absolvitor because he bruiked by vertue of a Tack at least by tacit Relocation which must defend ay and while the famine be interrupted by Inhibition or Process It was replyed the Pursuer produces Inhibition and craves only the valued Duties for the years thereafter It was answered the Inhibition is direct to Messengers at Arms and is only execute by a Sheriff in that part It was answered that it was sufficient seing the Letters bore Messengers Sheriffs in that part The Lords found the Inhibition sufficient to interrupt the tacite Relocation Iean Crichtoun and Mr. Iohn Eleis her Husband contra Maxwel of Kirk-house Eodem die JEan Crichtoun being Served to a Terce of certain Lands belonging to her first Husband Maxwel of Kirk-house pursues for Mails and Duties It is alleadged absolvitor because the Pursuer hath a competent Joynture more then the third of her Husbands Estate as then it was and a Provision of Conquest and albeit it be not expresly in satisfaction of the Terce yet it is but a minute bearing to be extended and there is a Process of Extension thereof depending and therefore it ought to be extended with such Clauses as are ordinar in such cases and this is most ordinar that competent Provisions use to be in satisfaction of the Terce It was answered that the Extension could not be with alteration of any substantial Point such as this but only as to Procurators of Resignation Precepts of Seasine c. And to show that it was not Kirk house his meaning that the Infeftment should be in satisfaction of the Terce the Infeftment it self produced being extended in ample Form does not bear to be in satisfaction The Lords Repelled the Defenses and found the Terce competent in this Case Colonel James Montgomery contra Steuart Eodem die IN the Declarator betwixt these Parties mentioned the 24. day Instant It was alleadged that the Plenishing and Moveables could not be declared to belong to the Pursuer by vertue of Dam Elizabeth Hamiltouns Disposition in so far as concerns the Moveable Heirship in respect it was done on Death bed and could not prejudge the Defender who is Heir even as to the Heirship-moveable It was answered that the said Dam Elizabeth being Infeft neither in Land nor Annualrent in Fee could have no Heirship It was answered that her Husband and she were infeft in certain Lands by Hoom of Foord which were Disponed to her Husband and her in Conjunct-feeâ and to the heirs of the Marriage which failzing to whatsoever Person the said Sir William should assign or design And true it is he had assigned that Sum to his Lady whereby she had Right of the Fee and so might have heirship The Lords found that this Designation made the Lady but Heir appearand or of Tailzie whereupon she was never Infeft and by the Conjunct-fee she was only Liferenter and that the Assignation to the Sums and Right gave not her heirs any heirship moveable Heugh Dollas contra Frazer of Inveralochie Ianuary 31.
charges the Parochiners of Craufoord Compearance is made for the Bishop of Edinburgh alleadging that this was a Patrimonial Kirk of the Bishoprick of Edinburgh and so was not comprehended in the late Act of Parliament anent vaccand Stipends The Lords repelled the Defense and preferred the Collector of the Vaccand Stipends for they found the Act was general without any such exception Mr. John Thomson contra Mckitrick Eodem die MR. John Thomson pursues Mâkitrick for reduceing of an Infeftment of some Tenements in Dumfries upon an appryzing on these Reasons First That the appryzing was null proceeding upon a Bond without Requisition or Charge without which the Heretable Bond could not become moveable 2dly Infeftment being within Burgh was not given by the Baillies and Town Clerk 3dly That it was neither Registrate in the Town Books nor in the Register of Seasings of the Shire It was answered to the First that the Bond bare no Clause of Requisition but bore on the contrare to be payable without Requisition and so as Moveables the Defender might have poynded therefore without Charge so might Lands be Appryzed to the Second there being no Magistrats nor Town Clerk in Office at the time of this Seasine and the Defender being an Appryzer necessitat to do Diligence took Seasine by the Sheriff Clerk which was necessar and sufficient To the Third the Act of Parliament requires no Registration of Seasines within Burgh and albeit they be ordinarly to be found in the Town Books yet if that should be neglected they would not be null The Lords repelled the first Reason and found no necessity of a Charge and they had formerly repelled the second Reason in respect of the Answer made thereto and did also repell the third Reason Earl of Southesk contra Marquess of Huntlie Iuly 23. 1666. THE Earl of Southesk and the late Marquess of Argyl being Cautioners for the late Marquess of Huntly for the Tochers of the Daughters of Huntly they got an Infeftment of the Lands of Badzenoch for their relief bearing that according as they should be distrest they should have access to the Rents of the Lands in so far as might pay the Annualrent of the Sum which they should be distrest for whereupon they were Infeft in Anno 1643. And thereafter Southesk was distrest in Anno 1653. Whereupon in Anno 1655. He pursued an Action of Maills and Duties upon the said Infeftment of relieff against the said Lord Argyl who was in Possession and my Lord Argyl having long before granted an Bond of relieff to Southesk he used Horning and Caption thereupon in Anno 1655. and in Anno 1658. he used Inhibition upon the said Bond against Argyl who in Anno 1658 Entered in a new Contract with Southesk whereby in Corroberation of the first Infeftment he granted him a Wodset of the Lands of Enzie with a Back-tack by vertue whereof Southesk uplifted several years of the Back-tack Dutie Southesk now pursues the Marquess of Huntly and his Tenents for declaring of his Right and payment of the Maills and Duties it was alleadged for the Defenders First absolvitor because the Marquess of Argyl hath been Retoured to have possest the Lands of Badzenoch peaceably by the space of 5 years before his Forefaulture which was in Anno 1661. Conform to the Act of Parliament 1584. By vertue thereof this Marquess of Huntly as the King's Donatar to the Forefaulture in so far as concerns the Estate of Huntly has undoubted Right and needs not dispute what Right Southesk had before the five years It was answered for the Pursuer First That the Act of Parliament 1584 ought not now to take effect because by the late Act of Parliament 1617. Seasine and Reversions are appointed to be Registrat otherwise they are null and therefore the ground of the Act of Parliament 1584. viz. The abstracting of Evidents Ceasing the said Act it self must also cease 2dly The said Act can only take place where it is not constant what Right the Forefault Person had but that he was repute to be the ancient Heretor of the Lands but where the Forefault Persons Right is known to have been Beations Compryzing or this Conjunct Right granted to himâ and the Pursuer for their Cautionrie presumptio cedit veritati and the Right must only be holden to be such a Right as truly it was 3dly The five years Possession being in effect a Prescription in favours of the King and his Donatar whatsoever would interrupt any other Prescription must interrupt this as if within the five years the Pursuer had intented a Reduction of the Forefault Persons Right or an Action for Maills and Duties or had required for his Sums and charged thereupon all these would be sufficient interruptions against this quinquennial Possession and would take away the presumption of Collusion or abstracting 4thly The five years possession by the Act of Parliament bears expresly to be peaceable so that if it was turbata possessio it would not be enough and being once a troubled possession by any legall interruption after the said interruption that subsequent possession ceases not to be a troubled possession though there be no furder interruption within the 5 years because interruption once used endures for 40. years Ita est Argyls possession was troubled by pursuits to compt for the Maills and Duties of these Lands upon this Right and that within a year or two before the five and likewise within the 5. year the Marquess of Argyl did corroborat this Right and in corroboration thereof granted Wodset of the Lands of Enzie for the Sums accummulat by vertue whereof the Pursuer within the 5. years was in Possessionâ by uplifting the Back-tack Dutie which being a Cumulative Right possession thereon is valid for both The Defender answered that his Defense upon the Act of Parliament stood valid notwithstanding of all the Replyes because the Act is clear and unrepealled that 5. years peaceable possession of the Forefault Person gives the King unquestionable Right it being retoured by an Inquest as now this is And as to the troubling of the possession no Deed done before the 5 years can have any effect because as the 5 years cut off the most Solemn anterior Rights much more a Citation or other Interruption and as to the Interruptions within the 5. years they are only two one is an Inhibition against Argyl which proceeds not upon this Infeftment but upon a Personal obligement by Argyl to relieve the Pursuer neither does it at all relate to the possession nor any other Action but only as an Inhibition prohibits Alienation And as for the Contract of Wodset with Argyl it is post commissum crimen and so cannot prejudge the Donatar It was answered that albeit the Forefault Persons Deeds being voluntar post commissum crimen cannot be effectual yet where it is upon a cause anterior to the Crime viz. Argyls Intromission by the Infeftment of Relieffâ and the distress occurring against the
have been used at the Old Paroch Kirk and particularly by the Defender himself The Lords Repelled the Defense simply unless the Erection were alleadged as aforesaid and found in that Case the Reply Relevant to elide the same Earl of Argile contra George Campbel Ianu 25 1667 THE Earl of Argile insisting in the Removing against George Campbel It was alleadged no Removing because the VVarning was null not bearing to have been Read at the Kirk Door either at the time Divine Service uses to be or at least before Noon It was answered that the VVairning bore that the same was affixed on the Kirk Door and lawfully Intimat there which does import the lawful time of the Day 2ly The Pursuer offered to mend the Executions at the Bar and abide by it as so done It was answered that the Defender accepted the Executions as produced after which they could not be amended and that lawfully could not supply that Speciality otherwise if the VVarning had only born that the Officer had VVarned the Party lawfully it would have been enough The Lords admitted the Pursuer to amend the Execution he biding thereby and Ordained the Defender to see the same Hercules Scot contra Gibb Ianuary 29 1667. HErcules Scot having given his Horse to John Gib Stabler in Brunt-Island to be kept pursues Gibb for the price of his Horse The Defender alleadged Absolvitor because he having put out the Horse to the Grass it being in the Month of July the Horse fell over a Rock and brake his neck and the Defender is not lyable pro casu fortuito It was answered that the Accident was by the Defenders fault because he put the Horse to Grassing above the Craigs of Brunt-Island and caused ty his Head and Foot together 2ly It is offered to be proved by Witnesses that the Pursuer directed him to keep the Horse in the Stable at hard Meat and not to put him out to Grass The Defender answered that he was not in culpa because he had put out the Horse in a place where ordinarly other Horses were put out and had tyed him no other way then the rest of the Horses 2ly The Command to keep is only relevant to be proven scripto vel juâamento and the emission of words without any Fact is not otherwise probable The Lords found the Defense and Duply Relevant to elid the Summons but found the Reply and Triply Relevant to elide the same and found it Probable by Witnesses in respect it was a part of the Bargain betwixt the Pursuer and the Stabler Henderson contra Henderson Ianu. 31. 1667. UMquhil Henderson grants a Writ in favours of Allan Henderson whereby he appoints the said Allan to be his Heir and Donatar to all his Lands and Estate and assigns him to the Rights and Evidences thereof with power to Enter by the Superiour But in the Narrative it bears the ordinar Narrative of a Testament and has a Clause subjoyned to all in case of his Return he may alter and annul the same there having nothing followed in his Life The said Allan pursues Henderson his appearand Heir to fullfil the former Writ and to Enter Heir and Resign in his favours conform to the meaning thereof The Defender alleadged Absolvitor First Because this Writ is no Disposition but a Testament or a Donation mortis causa in which no Disposition of Land can be valid 2ly Albeit this could be a Disposition yet it is not done habili modo there being no Disposition of the Right of the Land or any Obligement to Infeft neither can a Person be Constitute Heir but either by Law or Investiture or at least by an Obligement to grant Investiture 3ly This being donaâio mortis causa expresly Revocable by the Defunct at his return it is ambulatory and conditional Ita est he returned and granted Commissions and Factories whereby his mind appeared to be changed The Lords Repelled all these Alleadgances and sustained the Summons because though the Writ was unformal yet they found the Defuncts meaning was to alienat his Right from his Heirs to this Pursuer to take effect after his death and albeit he returned seing he did no Deed to annul or recal this Writ this was effectual against his Heir to compleat the same Creditors of Sir James Murray contra Iames Murray Feb. 1. 1667. THere being a Wodset of the Lands of Stirling granted by Sir Iames Murray to Iames Livingstoun of the Bed-Chamber containing a Clause of Requisition and Reversion on payment at London the Lands being Appryzed by Sir Iame's Creditors they having the Right of Reversion did use an Order at Edinburgh against Iames Murray as now having a Right to the Wodset and pursue a Declarator The Defender alleadged Absolvitor because the Order is not conform to the Reversion which is strictissimi juris and behoved to be done at London It was answered the place being adjected in favour of Iames Livingstoun who resided at London The Pursuers have done more having consigned at the present Wodsetters Domicile London being only appointed as it was the former Wodsetters Domicile wherein he hath benefit and can have no detriment It was answered he was not obliged to Debate his detriment for if his Money were in London he would get six of the hundreth of Exchange to Scotland The Lords sustained the Order the Pursuers making up what should be modified by the Lords for the Interest of the Wodsetters Earl Tullibardine contra Murray of Ochtertyre Eodem die THe Earl of Tullibardine having Wodset the Lands of Logie-Almond to Murray of Ochtertyre he did thereafter Discharge the Reversion and at that same time got a Back-bond bearing That for payment of 56000. merks with all other sums that should happen to be due to him by Tullibardine and all Expenses that he should Dispone the Lands back to Tullibardine or the Heirs or Assigneys of his own Body but with this provision that if he were not payed before Martinmass 1662. the Bond should be null without Declartor Tullibardine premonishes and after Premonition Dispones the Lands to Sir Iohn Drummond and they both joyntly Consign and now pursue Declarator It was alleadged for the Defender Ochtertyre First No Declarator upon this Order because the Back-bond is Personal to my Lord and to the Heirs or Assigneys being of his Body so that Sir John Drummond nor no Stranger can have Right thereby to Redeem 2ly The Back-bond is extinct and null by committing of the Clause Irritant in so far as payment has not been made before 1662. The Purswer answered to the first that albeit the Reversion had been Personal to my Lord only excluding his Heirs and Assigneys yet my Lord in his own Lifetime might Redeem and being Redeemed the Right would belong to any to whom my Lord had or should Dispone 2ly This Clause Irritant is pactum legis commissoriae in pignoribus which by the Civil Law and our Custom is void at least may be still purged
returns and therefore ordered an other Letter to be written to the Secretary to know the Kings Mind and the Custom of England in that point before answer and ordained the opinion of some Merchants to be taken whether Parkmans Ship Fraught in Norway to Holland and Disloaden there and thence going to France with Ballast not upon the account of the former Fraught but the Owners if it should be accounted one Voyage or two so that the return from France might be accounted the immediat return of the Voyage to Holland In this Processe the Lords by a former Interlocutor had found the taking on of the Men as they were qualified and proven to be no ground of seasure Dowgal Mcferson contra Alexander Wedderburn Eodem die DOwgal Mcferson having Charged Alexander Wedderburn of Kingennie Provost of Dundee for payment of a Sum of Money he Suspends on this Reason that the Sum was payable to Dowgal and his Wise in Liferent and contained a Clause of premonition and Requisition and the Sum to be Consigned in the Hands of the Dean of Gild of Dundee which was Consigned accordingly The Charger answered that he offered to prove by the Suspenders Oath that he took up the Money from the Dean of Gild and therefore he must re-produce the same with the Annualrents thereof since the Consignation It was answered that it being the Chargers fault that the Suspender was put to Consigne because he had not a Discharge granted by his Wife judicially that therefore he could not be lyable for Annualrent in that he uplifted the Soum unlesse it were proven he had made Profit thereof but he offered to Depone that he had all the Money still lying by him and got no Profit of the same and that he ought to have uplifted in regard he was lyable for the hazard of the Consignation The Lords found the Suspender lyable to produce the Money Consigned with the Annualrent since seing he uplifted the same without difference whether he made Profit or not The Baillie of the Regality of Killimure contra Burgh of Killimure Eodem die THe Heretable Baillie of the Regality of Killimure having Conveened and Amerciat a Person in the Burgh they Suspend on this Reason that the Burgh being a Burgh of Regality having its own Magistrats Inhabitants are only lyable to the Jurisdiction It was answered that the Burghs Jurisdiction being granted by the Lord of Regality is only cumulative and not exclusive of the Lord of Regality or his Baillie in the same way as the Jurisdiction of all Vassals is not exclusive of their Superiors Jurisdiction for the Burgh are Vassals Holding of him and therefore est locus preventioni and the first Citation without negligence is preferable Which the Lords found Relevant Earl of Argyle contra George Campbel Ianuary 15. 1668. THe Earl of Argyle pursues George Campbel to Remove from a Tenement of Land in Inerera who alleadged no Processe because the Pursuer produces no Infeftment of this Burgh or Tenement therein The Pursuer answered that he produced his Infeftment of the Barony of Lochow and offered him to prove that this is part and pertinent of the Barony The Defender answered that this Burgh cannot be carried as part and pertinent but requires a special Infeftment first Because by the late Marquess of Argyls Infeftment in anno 1610. produced this Burgh is exprest and not in the Pursuers Infeftment 2dly Because in the Pursuers Infeftment there is exprest particulars of far lesse moment 3dly Because a Burgh of Barony is of that nature that cannot be convoyed without special Infeftment The Pursuer opponed his Infeftment of the Barony of Lochow which is nomen universitatis and comprehends all parts of the Barony although there were none exprest and therefore the expressing of this particular in a former Charter or lesse particulars in this Charter derogat nothing it being in the Pursuers option to expresse none or any he pleases and albeit in an Infeftment of an ordinary Holding without Erection in a Barony Milns Fortalices Salmond Fishings and Burghs of Barony cannot be conveyed under the name of part and pertinent yet they are all carried in baronia without being exprest The Lords Repelled the Defence in respect of the Reply and found that this being a Barony might carry a Burgh of Barony as part and pertinent though not exprest albeit it was exprest in a former Infeftment and lesser Rights expressed in this Infeftment The Defender further alleadged no Processe because the Pursuers Infeftment is qualified and restricted to so much of the Estate as was worth and payed yearly fifteen thousand Pounds and the superplus belongs to the Creditors conform to the Kings Gift likeas the King granted a Commission to clear the Rental and Set out the Lands to the Pursuer and to the Creditors who accordingly did Establish a Rental wherein there is no mention of the Lands of Innerera and therefore they cannot belong to the Pursuer It was answered for the Pursuer that he oppones his Infeftment which is of the whole Estate and whatever Reservation be in Favours of the Creditors it is jus tertij to the Defender It was answered that the Defenders Advocats concurred for a number of the Creditors whom they named and alleadged that they would not suffer the Defender to be Removed seing they only can have Interest to these Lands in question The Pursuer answered that the Creditors Concourse or Interest was not Relevant because they have no Real Right or Infeftment but only a personal Provision that this Pursuer shall dispone and Resigne the superplus of the Estate in their Favours or otherwise pay them eighteen years purchase therefore at his option whensoever they shall insist Via actionis the Earl shall declare his option but they having no Infeftment cannot hinder the Donatar to Remove Parties having no Right which is the Creditors advantage and cannot be stopped by a Few of them likeas the whole Barony of Lochow is Set out by the said Commission to the Pursuer himself conform to their Sentence produced The Lords did also Repel this Defence and found that the Provision in Favours of the Creditors could not stop this Removing Earl of Kinghorn contra the Laird of Vdney Eodem die THe Earl of Kinghorn pursues the Laird of Vdney as representing his Father to Denude himself of a Wodset Right granted by the late Earl to the Defenders Father conform to the Defuncts Missive Letter acknowledging the Receipt of the Sums of the Wodset and obliging himself all written with his own Hand and craved that the Defender might Enter and Infeftâ himself in the Wodset and Resigne in Favours of the Pursuer that the Lands might be purged thereof and insisted against the Defender first As lawfully Charged to enter Heir who offered to Renunce to be Heir The Pursuer answered he would not suffer him to Renunce because he offered himâ to prove that he was lucrative Successor by the Disposition of the Lands of
payment of a Debt due to him by a Person Incarcerat in their Tolbooth who escaped The Defenders alleadged no Processe till the Magistrats who then were especially Bailly Boyd by whose Warrand the Rebel came out be called 2dly The present Magistrats cannot be lyable Personally having done no Fault neither can they be lyable as representing the Burgh at least but subsidiarie after the Magistrats who then were in culpa were Discussed now after six or seven years time The Pursuer answered that the Prison being the Prison of the Burgh the Burgh was lyable principaliter and if only the Magistrat doing the Fault were lyable the Creditor might oftimes loose his Debt these being oftimes of no Fortune or sit to Govern and the Town who Choiseth them is answerable for them neither is the Pursuer obliged to know who were Baillies at that time or who did the fault and so is not bound to Cite them The Lords Repelled the Defences and found the present Magistrats as representing the Town lyable but prejudice to them to Cite them who did the Fault Robert Ker contra Henry Ker February 5. 1668. RObert Ker of Graden having granted Bond to Robert Ker his Son for 3000. Merks of borrowed Money and 3000. Merks of Portion for which Sum he did Infeft him in an Annualrent of 240. Pound yearly Suspending the Payment of the one half of the Annualrent till his Death whereupon Robert pursues a Poinding of the Ground It was alleadged for Henry Ker the eldest Son who stands now Infeft in the Lands Absolvitor because he stands Infeft in the Lands before this Infeftment of Annualrent being but base took effect by Possession The Pursuer answered first That the Defenders Infeftment being posterior and granted to the appearand Heir without a Cause Onerous it is perceptio Haereditatis and if the Father were Dead it would make the Defender lyable as Heir and therefore now he cannot make use thereof in prejudice of the Pursuer 2dly The Pursuer offered to prove that his Annualrent was cled with Possession before the Defenders Infeftment in so far as he Received the half of the Annualâent which is sufficient to validat the Infeftment for the whole seing there are not two Annualrents but one for the whole Sum and seing the ãâã could do no more the one half of the Annualrent being Suspended till his Fathers Death The Lords found this second Reply relevant and found the Possession of the half was sufficient to validat the Possession for the whole but superceded to give answer to the former Reply till the conclusion of the Cause not being clear that the Defense upon the Defenders Inseftment could be taken away summarly though he was appearand Heir without Reduction upon the Act of Parliament 1621. Mr. George Iohnstoun contra Sir Charles Erskin February 6. 1668. THe Lands of Knockâââ being part of the Lands of Houdon did belong to Umquhil Richard Irwing Umquhile Mr. Iohn Alexander Minister having Charged Robert Irwing to enter Heir in special to the said Richard his Grand-sir in these Lands he did Appryze the same from Robert as specially Charged to enter Heir but Robert died before he was Infeft or Charged the Superior Sir Charles Erskine hath Appryzed from Mr. Iohn Alexander all Right competent to him in these Lands and thereby having Right to Mr. Iohn Alexanders Appryzing he is Infeft thereupon After Robert Irwings Decease his Sisters served themselves Heir to Richard their Grand-sir and are Infeft do Dispone to Mr. George Iohnstoun who is also Inseft Mr. George pursues for Mails and Duties in the Name of Irwings his Authors Compearance is made for Sir Charles Erskine who alleadged Absolvitor First Because he hath been seven years in Possession of the Lands in question by vertue of Mr. Iohn Alexanders Appryzing and his own and so is tulus exceptione in judicio possessârio and cannot be quarrelled till his Right be Reduced 2dly He is potior jure and his Right must exclude the Pursuers because he having Right to Mr. Iohn Alexanders Appryzing which was Deduced against Robert Irwing as specially Charged to enter Heir so Richard as to him is in as good case as Robert had been actually Entered and Infeft by the Act of Parliament declaring that when Parties are Charged to enter Heir and lyes out sicklike Processe and Execution shall be against them as they were actually Entered likeas the Tenor of the special Charge introduced by Custom to perfect the foresaid Act of Parliament bears expresly that the Person Charged shall enter specially and obtain himself Infeft with Certification that the user of the Charge shall have the like Execution against him as if he were Entered and Infeft and therefore Mr. Iohn Alexanders Appryzing against Robert Iâwing so Charged was as effectual to him as if Robert had been actually Infeft in which case there is no question but the Appryzer might obtain himself Infeft upon the Appryzing after the Death of him against whom he Appryzed and that summarly without new Processe and there is no difference whether the Superior were Charged during the Life of the Debtor or not The Pursuer answered to the first that no Party can claim the benefit of a Possessory judgement unlesse he have a real Right by Infeftment at least by Tack but a naked Appryzing thoug it may carry Mails and Duties as a naked Assigation and is valide against the Debtor or his Heir âet in it self it is an incompleat Right and not become real It was answered that the Appryzing alone was sufficient as was lately found in the Case of Mr. Rodger Hog against the Tennent of Wauchtoun The Lords repelled the first Defense and found there was no grond for a Possessory judgement here there was neither Infeftment nor Charge upon the Appryzing The Pursuer answered to the second Defense that it was not relevant to exclude him because Richard Irving having Dyed last vest and seised in the Lands and Robert Irving never having been Inâeft the Pursuers Roberts Sisters who were Heirs appearand buth to Richard their Grand-sir and Robert their Brother could not possibly obtain themselves Infeft as Heirs to their Brother becuse the Inquest could not find that Robert Dyed last vest and seised as of Fee but Richard and any Appryzing against Robert who was never Infeft evanished seing no Infeftment was obtained upon the Appryzing nor no Charge used against the Supperior during Roberts Life so that the Appryzer ought to have Charged de novo these Pursuers to Enter Heir to Richard and ought to have Appryzed from them as lawfully Chaged and to have obtained Infeftment upon the Appryzing in their Life and as the Sisters would exclude the imperfect Diligence against the Brother so much more may Mr. George Iohnstoun who is their singular Successor It was duplyed by the Defender that Mr. George Iohnstoun albeit he be singular Successor yet he is Infeft after Sir Charles Erskin and therefore the question now is only betwixt the Appryzer having Charged the Brother in special to Enter to these Lands to his Grand-sir and these Sisters being Infeft as Heirs to
of modification and locality and albeit the Minister had Discharged his whole Teind yet as to the superplus which is the Tacksmans part the Discharge was meerly gratuitous and was not upon payment made and the Pursuer was willing to allow what he truely payed the Defender answered that in all Benefices and Tacks use of payment importing a verbal Tack is sufficient per tacitam relocationem till it be interrupted so that if the Minister had granted a Tack in Writ but for one year and the Defender had continued in Possession per tacitam relocationem he was bona fide Possessor fâcit fructus consumptos suos even albeit the Minister had no Right so his use of payment for so long a time must work the same effect neither can it be made appear that the Defender or his Predecessors payed more then what they now pay The Lords Sustained the Defense and found the Defender only lyable for use of payment until Citation or Inhibition Mr. George Johnstoun contra Sir Charles Erskin Lord Lyon Eodem die UMquhile Richard Irwing having Died Infeft in the ten Merk Land of Knok-hill his Son had a Son and four Daughters his Son being his appearand Heir and being Addebted a Sum to Mr. Iames Alexander he Charged him to enter Heir in special to Richard his Grand-father and Apprized the Lands from him whereunto Sir Charles Erskin has now Right the said Son being now Dead and never Infeft Mr. George Iohnstoun takes Right from the four Female Grand-children and Serves them Heirs to their Grand-father but before they were Infeft there was an Infeftment or Charge upon the Apprizing at the instance of Mr. Iames Alexander and in a former competition Sir Charles was preferred upon Mr. Iames Alexanders Right as denuding the Male Grand-child appearand Heir for the time in the same manner as if he had been Infeft now Mr. George Iohnstoun upon the Femals Right raises a Declarator to hear and see it found and declared that Mr. Iames Alexanders Apprizing was satisfied and extinct by Intromission before the legal was expired It was alleadged that the Pursuers as Heirs Served and entered to Richard their Grand-father had no interest to Redeem the Apprizing led against Robert their Brother unless they were also entered Heirs to their Brother which Robert if he were alive might Redeem the Apprizing against himself so that the legal Reversion being in his Person cannot belong to his Grand-fathers Heirs but to his own Heirs and as he or his Heirs could only Redeem so can they only declare the Apprizing to be satisfied by Intromission neither can the Reversion belong to two both to the Heirs of Robert who was Charged to enter Heir and to the Heirs of the Grand-father who Died last Infeft It was answered that Robert never having in his Person any real Right as never being Infeft albeit fictione juris the Act of Parliament gives the Creditors like Right upon his disobedience to enter being Charged as if he had entered yet that is a meer passive Title and could give no active Title to Robert or any representing him either to Redeem or to call the Apprizer to an accompt till they were entered Heirs to the person last Infeft for albeit the Creditor Apprizer has a real Right yet the disobedient appearand Heir has none and albeit the Lords might suffer the disobedient appearand Heir or his Heirs to Redeem the Apprizing because the Apprizer had no interest to oppose the same being satisfied much less can the Apprizer now oppose the Pursuers who being Infeft as Heirs to Richard have the real Right of Fee in their Person and consequently the Right of the Reversion of the Apprizing led against Richards appearand Heir which being a minor Right is implyed and included in the Property Which the Lords Sustained and found that the Heirs of the person last Infeft being Infeft might Redeem or declare against an Apprizer who Apprized from an appearand Heir lawfully Charged albeit they were not of that appearand Heir The Creditors of James Masson contra Lord Tarphichan Eodem die SEveral English-men Creditors to Iames Masson who lately broke being Infeft in several Annualrents out of Lands of his pursue Poinding of the Ground compearance is made for the Lord Tarphichan Superior and his Donator to the Liferent Escheet of James Masson who alleadged that James Masson being Ribel year and day before these Infeftments of Annualrent the Ground could not be Adjudged but the profits behoved to belong to the Superior and his Donator It was answered that the Superior or Donator had no Interest by the Rebellion of James Masson because before the Rebellion James Masson was Denuded in favours of his Son and he Received as Vassal so that the Vassal for the time not having fallen in Rebellion the Superior can have no Liferent Escheat The Superior answered that the Creditors of Masson having been once Vassal and as Vassal constituting their Annualrents they could not object upon the Right of his Son unless they had derived Right from his Son 2dly The Superior is also Creditor and hath Reduced the Sons Right as fraudulent in prejudice of him a lawful Creditor It was answered that the Superiors Right as a Creditor upon the Reduction doth not simply annul the Sons Fee neither doth it at all restore the Father again because it being but a Reduction to a special effect viz. that the Creditor may affect the Lands by Apprizing upon his Debt anterior to the Sons Infeftment notwithstanding of his Infeftment the Sons Fee stands but burdened with that Apprizing so that upon neither ground the Superior can have the Right of a Liferent Escheat of him who once was his Vassal but was Denuded before Rebellion and which is most competent to the Pursuers as well as if the Superior had been Denuded and another Superior Infeft if he or his Donator had been pursuing for a Liferent any person Infeft in the Land might well alleadge that he had no Interest as Superior being Denuded The Lords found that in neither case the Superior or Donator could have interest in the Liferent Escheat Mr. John Hay contra the Town of Peebles January 20. 1669. MAster John Hay the Clerk having pursued a Reduction and Improbation against the Town of Peebles of all Right of Ascheils belonging to him in Property containing also a Declarator of Property of the saids Lands of Ascheils and that certain Hills lying towards the Town-lands of Peebles are proper Part and Pertinent of Ascheils He insists in his Reduction and Improbation for Certification or at least that the Defenders would take Terms to produce The Defenders alleadged no Certification because they stand Infeft in these Hills in question per expressum and the Pursuer is not Infeft therein The Pursuer answered that he offered to prove that they were proper Part and Pertinent of the Lands of Ascheils whereof he produces his Infeftment The Defenders answered that till the samine were
Mails and Duties for the Cropt and year 1667. Achtertire insists for the Duties of the Cropt 1667. which are payable at Martimess 1667. The way of payment of the Rent of those Lands and many others being that the Tennent enters at Whitsunday and payes his Rent at Martimess thereafter for the whole year and if he remove at the next Whitsunday he payes no Rent at that Term but leaves his Corns Sowen by him upon the Ground which he Shears after his removal Whereupon it was alleadged by Sir Iohn Drummond that this way of payment being aforehand Duty whereby the Tennent payes at Martimess before he Sowes the Cropt for the Cropt of the year of God subsequent to the Martimess that therefore Sir Iohn entering at Whitsunday 1668. and having Right to the Duties due for the Cropt and year 1668. he has Right to the Duties due at Martimess 1667. because that Duty albeit not payable in the year 1668. yet is payable for the Cropt 1668. seing the Tennent if he were removing at Whitsunday 1668. would for the payment made at Martimess 1667. carry free with him without any payment the whole Corns of the Cropt 1668. so that if Sir Iohn should enter to the void Possession of the Land at Whitsunday 1668. he should have no benefit of the Cropt 1668. but only of the Cropt 1669. It was answered for Achtertire that he has the only Right to the Rent payable at Martimess 1667. and Sir Iohn can have no Right thereto because his entry being but at Whitsunday 1668. he can have no Interest in the Cropt then Sown and standing on the Ground unto which no Buyer did ever pretend but the Seller if he be in natural Possession takes always with him his own growing Cropt even after the Buyers enters into Possession and so do all outgoing Tennents and so did Achtertire at his entry which being at Whitsunday 1656. he lifted the Duties due at Martimess thereafter but lifted not the Martimess Duty of the Cropt 1655. payable before his Wodset and therefore now he must lift the Rent due at Martimess 1657. or otherwise he wants a years Annualrent and if Sir Iohn Drummond should lift a years Rent due at Martimess 1667. and an other years Rent due at Martimess 1668. he should have two full years Rent of the Land within half a year of his entry which was at Whitsunday 1668. and which can never be understood except it had been clearly so expressed by the Parties neither is there here any further forehand Duty then what ordinarly Tennents paying Silver Rent and not Inlayed or Rentalled Victual entering at Whitsunday do for they pay the one half of there Rent at Martimess thereafter and the next half at the Whitsunday following that Martimess and for his years Rent they must have a years Cropt both of Grass and Corn and all the difference here is that the Rent due for the Possession from Whitsunday 1667. to Whitsunday 1668. is payable together at Martimess 1667. in the middle of the year whereas if it had been according to the ordinar course of Silver Rent being payable half at Martimess 1667. and half at Whitsunday 1668. Sir Iohn Drummond who entered but at the Whitsunday 1668. could have no Right to the Rent even payable at Whitsunday 1668. so neither can he claim it when it is payable jointly at Martimess 1667. The Lords found that Achtertire had Right to the Rent payable at Martimess 1667. and that Sir Iohn Drummond had Right to no part thereof Ierdan of Apilgirth contra Iohnstoun of Lockerby Feb. 24. 1670. APilgirth having Apprized Lockerbies Estate and pursuing on the Apprizing Lockerby alleadged that the Apprizing was satisfied at least he offered presently what was defective in this Accompt Lockerby alleadged upon a Wodset Right whereof an order was used whereupon the question arose and was reported by the Auditor whether after order used for Redemption of a proper Wodset the Sums Consigned being immediatly taken up by the Redeemer and the Wodsetter remaining four or five years in Possession thereafter and Declarator of Redemption being obtained upon production of the Sums consigned with the Annualrent from the Consignation whether the Wodsetter had Right to the Mails and Duties and might refuse his Annualrent or if he behoved to accept of his Annualrent and compt for the Mails and Duties It was alleadged for the Wodsetter that the Consignation was but simulat and the Money remained not in the Consignators hand so that he did justly retain the Possession and so was not comptable for the Duties The Lords found the Wodsetter comptable for the Duties seing he had no objection against the legality or verity of the order so that it was his fault that he keeped not the day of Consignation and Received his Money conform to the premonition and that the user of the order did no wrong to take up the Money out of the Consignators hand seing Consignations are upon peril of he Conâigner he making the same forthcoming at the time of Declarator with Annualrent since the Consignation George Graham contra The Laird of Stainbires Feb. 26 1670. GEorge Graham Merchant in Edinburgh Pursues the Laird of Stinbires for a Merchant Compt taken off partly by his Umquhile Father before his Decease and partly by his Factors and Servants thereafter It was alleadged as to the Defuncts Part of the Accompt the samine was not pursued within 3. years of the off-taking and therefore it is only probable by Writ or Oath of Party The Pursuer answered that he was ordinar Merchant to the Defunct for many years and that this was a current Accompt to the Defunct and his Heir the Defuncts Funerals having been taken off at his Death and the other subsequent Furniture to the Heir always since so that there is not three years betwixt that part of the Accompt that is for the Funerals and the last of the current Accompt given off to the Defunct and therefore it remains a current Accompt as to both 2dly There is not threeâ year betwixt that part of the Accompt furnished to the Defunct and the Summons raised against his Heir deducing the year and day in which the âeir could not be Pursued which is intra annum deliberandi The Defender answered that the currency of an Accompt was never extended to a Defunct and his Heir but only to one Person to exclude the prescription of probation by Witnesses neither in this short prescription is Minority or any other incapacity to be deduced and the Pursuer ought to have raised his Summonds intra annum deliberandi though he could not have obtained Decreet The Lords Sustained the Compt both against the Defunct and Heir as an current Accompt to be proven by Witnesses for the whole Doctor Hay contra Marjory Iameson Iune 8. 16670. DOctor Hay as Heir to his Father who was distressed as Cautioner for Con of Artrachy pursues a Reduction and Improbation of all Rights of the Lands of
of the Price and bearing this provision that it sholud not be payable till the Earl obtained George Infeft by his Superior The Earl Assigns the Bond to Lady Lucy his Sister who having raised Inhibition upon the Bond against George Hay and having thereafter Charged him he Suspended alleadging that the Condition was not fulfilled he not being Infeft and the Lady offering a part of the Sum to purge that Condition pro damno interesse and to procure his Infeftment George accepted of the offer and thereupon the Letters were found orderly proceeded for 3000. Merks of the Sum and Suspended for the rest in place of the Condition upon this Decreet the Lady Apprizes the Lands of Mountcastle and now Insists in a Reduction of a Disposition of the same Lands granted to Dunlap and Pitcon for themselves and to the use and behove of the Disponers other Creditors underwritten viz. Where there was a blank of several Lines which is now filled up by another Hand and though this Disposition was anterior to the Inhibition and did prefer Dunlap and Titcon for any Sums due to themselves or for which they were Cautioners the time of the Disposition Yet the Lords found by a former Interlocutor that as to the other Creditors filled up in the blank it should be repute as posterior to the Inhibition and filled up after the same unless the Creditors prove by the Witnesses insert or other Witnesses above exception that they were filled up before the Executing of the Inhibition The Cause being called this day the Creditors repeated their former alleadgeance and offered to prove that their Debts were anterior to the Inhibition and also that at the Subscribing thereof it was communed and agreed that Dunlap and Pitcon should undertake the remainder Creditors Debts at least they promised to give Dispositions of parts of the Estate effeirand to their Debts and accordingly they had done the same after the Inhibition but being upon a promise before the Inhibition they were valide having causam anteriorem and they offered to prove the Communing and Promise by the Writter and Witnesses insert 2dly They offered to purge and satisfie the Pursuers Interest 3dly They alleadged that their Disposition from the common Author of the Property of the Lands in question did comprehend all Right the Disponer had and consequently the Condition and Provision in the Bond that before payment George Hay should be Infeft for the Disposition would no doubt carry any obligement for Infefting the common Author The Pursuer opponed the former Interlocutor and alleadged that she was not obliged to Assign her Right seing she had now Apprized and that her Apprizing was now expired and yet of consent she was content to Renunce her Right but would not Assign it to exclude other Creditors or to distresse the Cautioners and as for the Condition of the Bond the Defenders Disposition gave them no Right thereto because there was no obligement in the Bond to obtain the common Author Infeft but only a suspensive Condition that payment should not be made till he were procured to be Infeft for hat the provision to obtain the Infeftment being only an Condition and not an Disposition after the Disposition to the Defenders the Pursuer might have payed the Bond or transacted thereanent with George Hay and was not obliged to know the Defenders The Lords adhered to their former Interlocutor and found the offer not sufficient and that the Pursuer was not obliged to Assign her Right though she had offered of her own accord to Renunce it and found the Persons Intrusted their undertaking the Creditors Debts before the Inhibition Relevant only to be proven by Writ or by the Ladies Oath of Knowledge and would not make up such a material Clause by the Oaths of the Witnesses insert nor of the Persons Intrusted and if they had made any such promise it was their own fault that they caused not put it in Writ knowing that their Oaths albeit they might prove against them yet that they would not prove for them for the Lords thought that if such blanks and clandestine Promises were allowed they might disappoint the Diligences of all Creditors Thomas Kennedy contra Archibald Kennedy of Culzean Eodem die THe Laird of Culzean having three Sons Iohn Archibald and Alexander for a Provision to Archibald the second Dispones his Lands of Corrowa and others with this provision that if Iohn should die and Archibald Succeed to be Heir Archibald should denude himself of the Lands in favours of Alexander and if Archibald wanted Heirs of his Body Alexander should be his Heir notwithstanding of any Law or Custom to the contrare thereafter a few Moneths before the Fathers Death this fourth Son called Thomas was Born Iohn the eldest and Alexander the third are both dead Infants Archibald falls to be Heir and so the Condition exists in which he was obliged to Dispone to Alexander Thomas enters Heir of Line to Alexander and pursues Archibald to Dispone the Lands to him It was answered for Archibald that Thomas as Heir of Line to Alexander can have no Right to this Provision First Because the Provision is only in favours of Alexander without mention of his Heirs 2dly Though it could be extended to Alexanders Heirs yet it being no Heretage to which Alexander could Succeed it is Conquest and would not descend to Thomas Alexanders Heir of Line but would ascend to Archibald as Heir of Conquest to Alexander It was answered for the Pursuer that in this case theâmeaning and intention of the Father must be considered by his Provision inter liberos which is clear to have been that Archibald should not both have his Estate and these Lands of Corrowa but that the same should descend to Alexander and if Thomas had been then Born he would no doubt have provided that failzying of Alexander Archibalds Portion should fall to Thomas and if he had declared that the Lands of Corrowa should only belong to the Heirs of Line it would undoubtedly have excluded the Heirs of Conquest He has done the equivalent for having provided the Lands to Archibald and his Heirs whatsomever he does by a posterior explicatory Clause declare that if Archibald died without Heirs of his Body Alexander should be Archibalds Heir therein notwithstanding of any Law or Custom to the contrare which can have no other meaning then that notwithstanding by the Law Iohn as Heir of Conquest would Succeed to Archibald wanting Heirs of his own yet Alexander the younger who would be Heir of Line should Suceeed which is as much as to say that this Provision should belong to Archibalds Heirs of Line and not to his Heirs of Conquest and consequently having made no mention of Alexanders Heirs he did also mean Alexanders Heirs of Line who is the Pursuer Thomas and the case is so much the more favourable that if this failed Thomas hath neither Provision nor Aliment The Lords considering that both Parties were
Practique produced observed by Dury upon the 1â of March 1637. betwixt Hume and Hume of Blackadder wherein Compt and Reckoning was Sustained at an appearand Heirs instance the Custom having been ever since contrair upon this Ground that no Party should be troubled to Compt at the Instance of those who when the Compt was closed cannot exoner them and yet may put them to make Litiscontestation and Probation in the Cause Duke of Buccleugh contra Parochioners of Eodem die THe Minister of Hasendein having obtained the Designation of a Gleib out of the Duke Land who alleadged that the Minister having a Gleib before extending at least to two Aikers the Earl upon this Designation had gotten Possession thereof and could only seek Relief for the Superplus It was answered that these two Aikers had never been designed as a Gleib but the Pursuers Predecessors were infeft therein and in Possession thereof before the Ministers and any Possession they had was but by their sufference and conââvance It was answered that decennalis triennalis possessor non tenesur docere de tââuâo and the Minister was not only in Possession thirteen years but thirty years It was answered that albeit Possession may be a Title yet it may be elided by the Pursuers Right which cannot be taken away but by Prescription whereupon the question arose how the Tollerance or Sufference of the Ministers Possession was probable whether by Witnesses or not seing Tollerances are not ordinarly so proven The Lords found that if the Ministers Possession were alleadged to have been 40. year as belonging to the Kirk that the Dukes Tollerance could only be proven by Writ to elide the same but if for fewer years they found the Tollerance or Sufference probable by Witnesses Mr. Arthur Gordoun contra Laird of Drum Eodem die MR. Arthur Gordoun as Assigney to a Decreet recovered against the Laird of Drum Charges him thereupon He Suspends on this Reason that the Debt being originally due to a Defunct his two Executors nominate recovered the Decreet and the one only assigned the whole to Mr. Arthur whereby he can only have Right to the half It was answered that the other Executor being Dead before the Assignation the Office accresced to the Surviver who might uplift all that was in bonis defuncti not uplifted It was answered that this Debt was no more in bonis defuncti but being established in the Executors Person by Sentence testamentum suit oxecatum and the Deceased Executor's half behoved to belong to their Executors and not to accresce Which the Lords Sustained Lady Ballagan contra Lord Drumlanrig Iune 23. 1671. THe Lady Ballagan being by her Contract of Marriage provided to certain Lands and amongst others to the Lands of Birks the Contract bears that she accepts of the saids Lands in full satisfaction of all further Conjunct-Fee Liferent or Terce she was Infeft in the Lands of Birks by her Husband but was not Confirmed by the Lord Drumlanrig Superiour of whom the Lands held Ward The Lady pursues the Tennents of Birks for Mails and Duties Compearance is made for the Lord Drumlanrig Superiour who craved preference because the Lands are now by Ward in his hands by the Death of the Husband and minority of the Heir And as for the Ladies Infeftment it can have no effect against the Ward because it is not Confirmed It was answered that the Lands being Ward and lesse then the third part of the Ward Lands holden of the Lord Drumlanrig the Lady has Right by Law thereto as her Terce It was answered That by her Contract of Marriage she had accepted the Lands provided therein in satisfaction of her Teroâ which is the ordinar conception of a Renunciation as when a Sum is accepted in satisfaction of any prior Debt it imports a Renunciation and Discharge of the prior Debt and an Inhibition prior to the last Bond will Reduce any Right thereupon Neither can it be maintained as having an anterior Cause by the former Bonds yea any Appryzing upon them would be void because they are Renunced It was answered for the Lady First That there was here no formal Renunciation or Discharge of the Terce and the acceptance of Lands for it doth very well allow that the Land accepted may be bruiked as Terce at least a Terce of that Land must be due though no Terce of other Lands can be claimed and albeit the Clause in satisfaction in personal Rights is commonly understood to Renunce and extinguish the prior Rights unless they be Reserved Yet it is not so in real Rights for if any person have many Rights to Lands and doth thereafter accept a Disposition of a part of the Lands in satisfaction of all his interest that does not Renunce his former Rights to that Land but he may defend himself with them all So here accepting of Lands in satisfaction of a Terce does not Renunce the Terce as to the Lands accepted 2dly Albeit this Clause could import the Renuncing of all Terce that can never be extended to the benefite of the Superiour nor can it be understood the Contracters mind to exclude the Wife from the Terce to make it accresce to the Superiour in both their prejudices because the Husband by the Warrandice must make out the Joynture 3dly Albeit the Renunciation could be profitable to the Superiour yet it being by this Clause in the Contract the Superiour cannot question the Ladies Infeftment which is the cause of the Renunciation but must adhere to the whole Clause nam qui approbat non reprobat It was answered that the common Sense of this Clause of acceptance does still import a full Renunciation neither can the intention or meaning of the Parties import any thing unlesse they had acted accordingly for it had been easie for them to have said but prejudice of the Terce as to thir Lands so that the Terce being Renunced the Renunciation is profitable to all Parties having Interest because the Right thereby Renunced is simply extinct Neither needs the Superiour approve the Infeftment Un-confirmed by making use of the Renunciation for as there could be no pretence for that upon the naked Clause without any Infeftment so the meaning can only be that if the Clause had been perfected by a valide Infeftment he could not have quarrelled it The Lords preferred the Superiour and found the acceptance a full Renunciation of the Terce both as to the Lands accepted and others Helen Hume contra Lord Iustice Clerk Iune 28. 1671. UMquhile Hume of Rentoun having made several Provisions to his Children and amongst the rest to Helen Hume and having recommended the same to his Son now Justice Clerk he gave a Bond to the said Helen of two thousand Merks payable upon Requisition of fourty days the said Helen pursued Registration of the Bond wherein it being alleadged that any Requisition made was past from by acceptance of Annualrent for Terms after The Lords Assoilzied from that Charge until
Pursuite Marjory Murray contra Isobel Murray Eodem die UMquhil Murray having Infeft Isobel Murray his Wife in two Tenements did thereafter by his Testament leave a Legacy of a thousand pounds to their Daughter Marjory Murray and gave other Provisions to the said Isobel his Wife and provided his Daughter to the two Tenements Which Testament his Wife Subscribes and after his Death Confirms the same but under Protestation that her Confirmation should not prejudge her own Right The Daughter pursues for the Legacy of 1000. pounds and for the Rents of the Tenements and alleadges that the 1000. pounds must be free to her without being abated by Implement of the Mothers Contract And likewise the two Tenements by her Mothers consent and subscription It was answered that the Mothers subscription was a Donation betwixt Man and Wife for being to the Mans Daughter whom by the Law of Nature he is obliged to provide it was all one as if it had been to himself 2dly her Subscription was obtained in luctu her Husband being near his Death and at his desire ex revèrentia maritali and the Confirmation can be no Homologation because of the Protestation foresaid It was answered that it was protestatio contraria facto and the Wife had no necessity to do it for she might have Confirmed her self Executrix Creditrix The Lords found that there was here no Donation between Man and Wife but in respect the Parties had not Debated the effect of reverentia maritalis ordained them to be heard thereupon and found the Protestation sufficient to take off the Ratification or Homologation by the Confirmation and found the Legacy of 1000. pounds to be left only according to the nature of a Legacy out of the Defuncts free Goods and would not exclude the Relict or any Creditor Sir David Dumbar of Baldune contra Sir Robert Maxwel Iuly 14. 1671. SIr David Dumbar of Baldune being Infeft upon several Appryzings in the Estate of Kirkcudbright pursues Reduction and Improbation against Sir Robert Maxwel of Orchartoun of all Rights of the said Estate granted by Baldune himself or by umquhil Iohn Lord Kirkcudbright or Thomas Lord Kirkcudbright or any of their Predecessours to whom they may Succeed jure sanguinâs to the Defender It was alleadged no Certification of any Writs made by the Predecessours of Iohn or Thomas Lords Kirkcudbright to whom they might succeed jure sanguinis because that can be no active Title to the Pursuer for if Iohn Lord Kirkcudbright himself were pursuing a Reduction he would not have a sufficient active Title to Reduce the Writs made by any Person to whom he was appearand Heir unless he had been actually Heir So neither can the Pursuer his Appryzer have further interest then Lord Iohn himself for albeit the Clause is Relevant passive against the Defenders to produce all Writs made to them or to their Predecessours to whom they may succeed jure sanguinis because Reductions and Declarators are Competent against appearand Heirs without any Charge to Enter Heir Yet they are not competent to appearand Heirs till they be actually Entered It was answered that the Pursuer being publickly Infeft has good interest to call for all Writs that may burden the Land to the effect he may improve the same as an impediment hindering his Infeftment But specially an Appryzer who has not his Authors Rights and that this has been always the stile of the general Clause in Improbations The Lords found the Defense Relevant and would grant Certification against no Writs but such as were granted by person whose Infeftments and Retours should be produced before Extract The Defender further alleadged no Certification against any Rights made by Thomas or Iohn Lords Kirkcudbright to the Defender because no person was called to Represent them Whereas it is known that George Lord Iohn's Nevoy is both appearand Heir-male and of Line and that this has been the common Defense always Sustained The Pursuer answered that the only ground of this Defense is when Defenders have Warrandice from their Authors and therefore the Pursuer ought to call their Authors that their Rights inâerring Warrandice upon them may not be Reduced they not being heard But here the Defender produces no Right from Lord Iohn or Lord Thomas and so the alleadgeance is not Relevant against the Production but only in case such Rights be produced it will be Relevant when the Pursuer insists to Reduce the Writs produced The Lords Repelled the Defense and reserved the same if any Right should be produced by the Defender bearing Warrandice Laird of Milntoun contra Lady Milntoun Eodem die THe Laird of Milntoun having insisted in an Improbature against the Lady Milntoun for annulling a Decreet of Divorce obtained at her instance against Iohn Maxwel her Husband the Relevancy whereof was Discust upon the 31. day of Ianuary 1671. and only the manner of Probation of the Corruption of Witnesses by prompting them how to Depone or by promising or giving them Bribes or any good Deed to Depone more than their ordinar Charges remained undiscust It was alleadged that such Reprobators were only probable by Writ or Oath of the Party adducer of the Witnesses post sententiam latam for Reprobators upon Corruption albeit they might be proven before Sentence by Witnesses above exception as to giving of Bribes which was a palpable Fact yet not then by prompting or promising or any words emitted which are only probable by the Witnesses adduced or by the Oath of the Adducer Neither in that case if the Witnesses adduced be above all exception can Witnesses be adduced against them but only their own Oath or Oath of the Party So that any Party that quarrels VVitnesses by Reprobators ought to do the same after they are adduced and before Sentence but if Sentence be once pronunced and Extracted it is res judicata quaepro veritate habetur And if Reprobators upon corruption be used after the Sentence upon Corruption the same can only be probable by the Oath of the Adducer And neither by the Oath of the VVitnesses adduced who cannot annull their own Testimony post jus quaesitum parti nor by other VVitnesses and if it were otherwise the greatest inconveniencies would follow for then the Sentence and Securities of the people founded thereon might for fourty years space be quarrelled upon pretence of corruption and singular Successors acquiring bona fide might be outed of their Rights As also there shall be no Termination of Process for as the first Sentence may be Canvelled by Reprobators against the Testimonies whereupon it proceeded so may the second be Canvelled in the same manner by a second Reprobator and so without end And seing the Law of this Kingdom hath been so jealous of Probation by Witnesses that it hath not allowed sums above 100. pounds to be proven thereby So Witnesses should not be admitted in Reprobators especially after Sentence It was answered that Reprobators being a necessar remeed against the
the Whitsânday at which the Buyer was to Enter February 22. 1670. Murray of Auchtertyre contra Drummond A Disposition of Lands and universal Legacy both contained in one Infeftment in which there is a Sum provided to Children not being particularly annexed either to the Disposition of Legacy the Disposition of Lands being found null as being in a Testament the universal Legacy was found burdened with no part of the Provision seing by the Nullity of the Disposition the Children had Right to their Portion of the Lands which exceeded the Sum they were provided to February 1. 1671. Pringle contra Pringles A Disposition granted by a Person who was insolvent and thereafter notoriously Bankrupt was not reduced as not proceeding upon a necessary cause or as being a preference of one Creditor to another none having done diligence in respect the Disposition was granted for a Bargain of Victual sold and delivered a Month before the Disposition in question whereby the Disponer was alleadged to become Bankrupt but it was not decided whether a notorious Bankrupt could after he was so known prefer one Creditor to another when none of them had done diligence Iuly 20. 1671. Laird of Birkenââg contra Grahame of Craig A Disposition of Lands was found to imply an Assignation to the Reversion of a former Wodset and that it needed no intimation the Infeftment on the Disposition being Registrate though a posterior Assigney had first redeemed November 18. 1664. Guâhrie contra Idem December 5. 1665. Beg contra Beg. DIVISION of Lands and a Muire betwixt Co-heirs was reduced upon a considerable inequality though not near the half value and though the division proceeded upon the Reducers oân Brief of division December 2. 1669. Monteith of Corruber contra Boid A DONATION was not presumed by a Mother to her Child by giving out Money in her Name with power to uplift and re-imploy in so far as she was debitor to the Child but pro reliquo December 20. 1661. Fleming contra her Children Donation of Aliment by a Mother to her Son who had no other means was presumed to Liberate him from Repetition but was not found so against his Step-Father for the years after his Marriage Iune 25. 1664. Melvil contra Ferguson Donatiâ inter Virum uxorem was found Revockable albeit it was not a pure donation but in lieu of another quo ad excessum seing it was notabilis excessus November 20. 1662. Children of Wolmet contra Lady Wolmet and Dankeith her Husband Doâatio inter virum uxorem was sustained to recal the acceptance of an Infeftment in satisfaction of the Wifes Contract February 12. 1663. Relict of Morison contra his Heir Donation betwixt Man and Wife Revockable was found not to extend to a Contract of Marriage though made up during the Marriage there being none before November 22. 1664. Mâgil contra Ruthven of Gairn Donatio inter virum uxorem was found not revockable if it were granted upon consideration of what fell in by the Wife after her former Provisions though that would also have belonged to the Husband jure mariti yet might be the ground in gratitude of a Donation Remuneratory November 23. 1664. Halyburtoun contra Porteous Donatio inter virum uxorem being in question where there was no Contract of Marriage but an Infeftment of all that the man then had and after a second Infeftment but stante matrimonio The Lords found that the first was valide there being no Contract before but they reduced the second finding no remuneratory provision of the Wife to answer both November 23. 1664. Inter eosdem Donatio inter virum uxorem was found not to reach an Infeftment of Lands to warrand and make up the principal Lands in the Contract such a Rent albeit there was but a personal Obligement in the Contract and that the Obligement to Infeft in Warrandice was therein satisfied and extinct November 24. 1664. Nisbit contra Murâay A Donation was presumed of Aliment by a Goodfire to his Daughters Child who was long in his House and after the Mothers death continued still without any agreement with the Father Iuly 21. 1665. Ludquharn contra Geight Donatio inter virum uxorem was found relevant to recal a Bond granted by a Hââband to his Wife bearing that he thought it convenient that they should leave a part and therefore obliged him to pay a Sum yearly for her aliment albeit it bear also that he should never quarrel or recal the same as importing a Renunciation of that priviledge February 6. 1666. Living stoun contra Beg. Donation betwixt Man and Wife was found to extend to a Charter bearing Lands and a Miln where the Contract of Marriage bear not the Miln and that it was not as an Explication of the parties meaning and so was revocked by a posterior disposition of the Husband to another February 5. 1667. Countess of Hume contra the Tenents of Oldâaââus and Hog Donation betwixt Man and Wife was found not to extend to a donation by a Husband to his Wifes Children of a former Marriage of her Goods belonging to him jure mariti and so was not revockable as done to the Wife though to her Bairns at her desire Ianuary 15. 1669 Hamiltoun contra Baynes A Donation by a Husband to his Wife by a Tack of his whole Lands not Liferented by her and bearing for Love and Favour and for enabling her to Aliment her Children and bearing a small duty in case there were Children and the full Rent if there were none was found valide as being remuneratory to make up the defect of the value which by Contract her Liferent Lands were obliged to be so much worth Superceeding to give answer wheither the Tack would be null at the instance of Creditors lending Sums after the Tack as latent and fraudulent if it were not proven remuneratory or wheither a donation betwixt Man and Wife is null and pendent as a Bairns Portion till the Husbands death and if the borrowing thereafter would prejudge the same there being no Lands left un-liferented thereby Ianuary 26. 1669. Chisâholm contra Lady Braâ Donation betwixt Man and Wife revockable was found not to extend to Wife Subscribing her Husbands Testament by which her Liferent Lands were proâided to their Daughter which was not âound alike as if it had been in favours of the Man himself who is naturally obliged to provide his Daughter Iuly 12. 1671. Murray contra Murray Donation by a Man to his Wife by a great additional Iointure where she was competently provided before was found not to be taken away by a posterior Testament made in lecto providing a less additional Iointure without mention of the former and being conditional that the said last addition should be at the Testators Fathers disposal if he returned to Scotland and he having returned and having Ratified the fiâst additional Ioynture the same was Sustained Iuly 18. 1671. Countess of Cassils contra Earl of
Roxburgh DONATAR of Forefaulture obtaining Decreet of Parliament upon fewer dayes citation then are required by Law Reducing an Infeftment on this Ground that it is holden of the Forefault person base un-confirmed and so excluded by the Forefaulture and not upon the five years possession of the Forefault person as heretable Possessor The Lords Sustained the Decreet February 22. 1665. Marquess of Huntly contra Gordoun of Lesmore A Donatar of single Escheat though excluded by the diligence of the Creditors of the Rebel before declarator upon debts before Rebellion was found not to extend to prefer an appryzing of a Wifes Liferent led against her Husband as having right thereto jure mariti in prejudice of the Donatar of the Husbands single Escheat though the Appryzing was before Declarator for a debt before Rebellion seing the Liferent had tractum futuri temporis and is not as Moveable Sums Iuly 18. 1668. Earl of Dumfreis contra Smart DOVBLE POINDING being raised in Name of Tennents by one of the Parties competing the same was sustained though the Tennents did disclaim the same and that the other party was their present Master his possession being but of late and controverted it was also sustained though there was no particular duties libelled but in general to be answered of the Mails and Duties as is ordinary in Decreets conform Iuly 14. 1665. Earl of Argile contra Dinloch and Rara A Double poynding calling two Ministers and preferring one the other being absent was found not irreduceablâ by the Act of Parliament anent double poindings seing the Decreet was only general without expressing the Teinds in question and so was only found valide as to what was uplifted but not in time coming without having a Right Iune 15. 1667. Gray contra IN DVBIISâ interpretatio facienda contra proferentem qui poâuit sibi legeââ dixisse clarius Iuly 29. 1665. Dowglas contra Cowan EIECTION vide Clause in a Tack December 19. 1661. Dewar contra Countess of Murray Ejection was not sustained at the Instance of an Heretor by the Tennents ceding the Possession to a Stranger seing the Tennent pursued not and that Tennent was not in natural possession but both were to compet for the duties that party having given an obligement to cede his Right December 21. 1661. Montgomry contra Lady Kirkcudbright Ejection at the instance of Heirs infants who had an old Infeftment but were not Infeft themselves was Sustained for re-possessing albeit the Defender obtained Decreet of removing against their Mother and entered thereby though the Decreet bear to remove her self âairns Servants c. The Pursuer being then in her Family February 19. 1665. Scots contra Earl of Hume Ejection was sustained upon putting the Pursuer out of his House and Land Naturally possessed by him though the Ejecter obtained Improbation against the Pursuer and thereupon Removing seing he entered not legally by Letters of Possession But this was not extended to the Lands possest by Tennents who were induced to take Right from the Ejecter to give violent profits of these Lands Iuly 25. 1668. Campbel contra Laird of Glenureây ERECTION granted by the King erecting Kirk lands into a Temporal Lordship was found not to be habilis modus while the same was not vacant but in the hands of a Commendator albeit he was dishabilitat to brook any Estate by his Fathers Forefaâture at the time of the erection seing his dishabilitation was thereafter rescinded in Parliament because he was no ways accessory to his Fathers crime whereupon his Temporal Provision was validate and the erection medio tâmpore was postponed to a posterior erection to the Commendator himself upon his own dimission February 24 1666. Sinclar contra Laird of Wedderburn ESCHEAT single was found to reach a sum due as the Liquidation of an obligement not to alienate Lands which was found moveable quo ad fiscum albeit it came in the place of the Right Heretable which would have belonged to the Heir February 4. 1663. Laird of Philorth contra Lord Frazer An Escheat gifted by the King was excluded by a Creditor who arrested during the Rebels life and pursued to make forthcoming after his death he having none to represent him in mobilibus dying at the Horn and so needed no Decreet establishing the debt in one representing the Defunct and calling the Representatives in the action for making forthcoming albeit the Arrestment was laid on after the Rebellion but before declarator and for a debt contracted before the Rebellion February 19. 1667. Glen contra Hume Escheat was found to carry a Bond bearing annualrent the Rebellion âalling before the first Term of payment of the annualrent Iune 26. 1666. Dick contra Ker. Vide Donator of Escheat Escheat was not burdened with debts contracted after Rebellion February 24. 1669. Countes of Dundâe contra Straâtown Vide Gift of Escheat AN EXECVTOR pursuing a debitor of the Defuncts was not excluded by Compensation because that debitor had taken Assignation from the Defuncts Creditor after the Defuncts death seing thereby the Defuncts debitor might prefer one of the Defuncts Creditors to another which neither a Debitor nor Executor can do but according to their diligence February 14. 1662. Children of Mouswal contra Lowry of Maxwelstoun In a Competition of Executry of Defuncts amongst their Creditors all who do diligence within six Moneths of the defuncts death by Confirming themselves Executors Creditors or intenting any Action against the Executor or Intromettor should come in pari passu by Act of Sederunt February 28. 1662. An Executor was found lyable to pay a Creditor of the defuncts albeit it was the price of Land sold to the defunct by a Minute without restricting the debitor to the Heir who would only get the disposition or causing the Creditor dispone the Land to the Executor in lieu of the Moveables but reserving to the Executor to seek relief of the Heir as accords Iuly 1. 1662. Baillie contra Hendrison Executors were found lyable for an Annual payment for years after the defuncts death February 5. 1663. Hill contra Maxwel In the Executry a Child dying before Confirmation of the Mothers third the Father being alive was found not to transmit to the Father as nearest Agâat but to the Mothers brother and that it was not in the case of the Legitim from a Father which is Transmissible without any Confirmation or adition to the Succession February 17. 1663. Forsyth contra Paâoun Executry was found bipartite where there was but one Child which was Forisfamiliat and provided without alleadging in satisfaction of the Bairns part seing here the Child offered not to confer February 18. 1663. Dumbar of Hemprigs contra Frazer An Executors proper Creditor competing with a Creditor of the Defuncts both on Arrestments of a part of the Defuncts Inventary the Defuncts Creditor was preferred to the Executors doing more diligence especially before this Sum was established in the Executors person by Decreet Iuly 8. 1664. Veâch contra Lord
Nottar as Town Clerk for the time The Lords sustained the alleadgeance to prefer Mackitrick The Executors Mr. Iames Fairly Minister of Leswald contra the Parochiners Iuly 5. 1662. THE Executors of Mr. Iames Fairly having obtained Decreet before the Comissaries against the Parochiners for the Ann as being the hail Year 1658. In respect the Minister died in February in the Year 1658. The Decreet was Suspended on this Reason that the Ann could only be half a Year seeing the Minister died before the Sowing of the Cropt or Whitsonday because if a Minister serve after Whitsonday he has the half of that years Stipend albeit he be Transported or Deposed otherwayes if a Minister should serve the whole Year till Michalmass day and then be Transported or Deposed he should get nothing so that the Ann being half a years Stipend more then the Minister served for he having only survived till Michalmes 1657. Has only the right to the Michalmes proprio jurae and half a Year thereafter as the Ann. The Charger answered That in Teinds and Stipends there are not two Terms but Michalmes for all and therefore if the Incumbent be disposed or transported before Michalmes he has nothing that Year but if he die after Michalmes any time before the beginning of the nixt Year proprio jure he has the Year he died in and the half of the next as his Ann but if he live till Ianuary in the year ensuing he has that whole year as his Ann. Which the Lords found relevant and therefore the Lords found the Letters orderly proceeded Duncan Drummond contra Colline Campbel Eodem die DVncan Drummond pursues Colline Campbel for payment of a Debt of his Fathers because in a Writ betwixt his Father and him The Father had Disponed all his moveables to him and he had undertaken his Fathers Debt whereby the Pursuer as Creditor had interest to pursue him to pay this Debt The Defender having alleadged that the Band and Disposition was never a delivered Evident either to the Father or to the Son but two blanks subscribed by them both were put in the hands of a Nottar to fill up the Bond and Disposition but before delivery both Parties resyled and desired the Nottar to Cancell and Destroy them yet Eight or Nine Years after the Nottar gave them up to this Pursuer and neither to the Father nor to the Son and the Question being how this should be proven The Lords before answer Ordained the Nottar and Witnesses insert to be examined ex Officio which being done their Testimonies proved as is alleadged before Then the Question was in jure whether the Depositation of Writs could be proven any other way then by the Oath of the Partie in whose favours the Writs were conceived he having the same in his hands The Lords found that seeing these two Writs were not produced by the Father nor the Son by and to whom they were mutually granted but by a third Partie in whose favours a Clause therein was conceived in that case the deposition probable by the Writer and Witnesses insert and by the saids Testimonies found the Writs null Robert Bones contra Barclay of Iohnstoun Iuly 9. 1662. RObert Bones having arrested certain Goods and Bestial as belonging to Iohn Wood his Debitor in the hands of Barclay pursues for making the same forthcoming The Defender alleadged absolvitor because the Goods Lybelled the time of the Arrestment were the Defender proper Goods Disponed to him by the said Iohn Wood for anterior Rests and Debts and delivered also before the Arrestment It was Replyed The Defense ought to be repelled because Wood the Disponer was Rebell and at the Horn before the delivery of the Goods at the Pursuers instance and whereby the Tradition being after the Horning the Disposition is null as being incompleat before the Horning and after the Horning the Rebel could do nothing to prejudge the KING or his Donatar or the Pursuer for the Debt whereupon he was denuded which by the Act of Parliament one thousand six hundred twenty one affects the Escheat Goods ubicunque The Defender answered That the Reply is not Relevant unless it were alleadged that the Horning had been before the Disposition for it is lawful for Creditors either to Poynd Arrest or take Dispositions of their Debitors Goods though Rebel being for Debts anterior to the Horning if the Disposition and Delivery be prior to Declarator neither can the Act of Parliament one thousand six hundred twenty one against Dispositions in defraud of Creditors operat here because the Disposition is anterior to the Horning and for an onerous cause The Lords found the Defense Relevant notwithstanding the Reply Laird of Lamertoun contra Hume of Kaimes Iuly 10. 1662. HOom of Kaimes being Infeft upon an Appryzing of the Lands of Northfield led against Lamertoun pursues the Tennents for Mails and Duties and obtains Decreet which was Suspended and Reduction thereof raised on this Reason that it was spreta authoritate judicis there being an Advocation judicially produced before the Sheriff before pronouncing at least before the Extracting of this Decreet in so far as the Suspender came to the Sheriff Court at the ordinar time of the Court Day at eleven hours and produced the Advocation but the Sheriff had fitten down that Day contrair his Custom at ten hours and had pronounced the Decreet before eleven hours The Charger answered non Relevat that the Advocation was produced before Extract not being before Sentence pronounced because albeit inferiour Judges are accustomed sometimes to stop their own Decreets after they are pronounced before Extracting yet sententia definitiva est ultimus actus judicis and the Extract is but the Clerks part so that it can be no contempt albeit the Judge would not prohibite the Extract and as to theâ other Member that the Sheriff sat his Court an hour before the ordinar time non Relevat unless he did it of purpose to anticipat this Advocation The Lordâ found the first member of the Reason that the Advocation was produced before Extract after Sentence non Relevat and as to the other member they found it relevant as it is circumstantiat to infer that it was done of purpose to anticipat the Advocation without necessity to prove otherwayes the purpose and in that case declared if the same were proven they would turn the Decreet in a Libel Iohn Ker contra Ker of Fernilee and others Eodem die IOhn Ker having granted a Bond whereupon he being Charged to Enter Heir to several persons his Predecessors and having renounced their Lands were adjudged John took Assignation to the Adjudication himself and pursues the Defenders for exhibition of the Rights and Evidents of the Lands and Delivery thereof The Defender alleadged absolvitor First Because the pursuit being upon the Pursuers own Bond now again Assigned to himself confusione tollitur obligatio The Lords Repelled this Defense Secondly absolvitor because the Pursuer can have no Interest upon
it cannot be understood of being under the Pursuers command all her life and so can only be meaned if Magdalen miscarry contrair to the Pursuers advice in some considerable matter of her carriage and however it is not a suspensitive condition hindring the payment of the Legacy but oblieging the Legatar thereafter The Lords found the Legacies constitute and in terms for said valid and as for Magdalens Legacy declared that in case Magdalen miscarried and took not the Pursuers Advice that she should be lyable to refound the Legacy to the Pursuer but would not put her to find Caution for that effect the condition being so general Katharin Kinross contra the Laird of Hunthill THe Laird of Hunthill being oblieged by Bond to pay a sum to umquhil Mr. Beverly and the said Katharin his Spouse the longest liver of them two in Conjunct-fee and the Heirs betwixt them which failzing his Heirs or any person he should design whereupon they were infeft in an Annualrent The said Katharin having charged for payment of the sum Hunthill suspended alleadging that she was but Liferenter and he could never be in tuto till the Feear were called The Lords formerly found the Letters orderly proceeded for the Annualrent but superceeded to give answer for the Stock till some to represent Beverly the Feear were called who now being called and not compearing he Debitor alleadged he could not be lyable to give up the Stock to the Charger being only Liferenter neither would her Discharge or Renunciation of the Wodset liberat him and his Estate but only a Renunciation of the Heir neither did the Charge at the Liferenters Instance take away the Annualrent and make the principal sum moveable unless it had been at the Feears Instance The Charger answered that she being Conjunct-feear was not a naked Liferenter albeit it resolved in a Liferent and therefore she craved that it should be declared by the Lords that she had power to uplift the Stock and to reimploy it as formerly and that her Discharge and Renunciation should be declared to be sufficient to liberat the Debitor and his Lands which being so found by the Lords The Debitor's appearing Heir being called would be an irreduceable and sufficient ground of Liberation The Lords declared as aforesaid but before Extract ordained the Conjunct-feear to give Bond for Reimployment of the sum to her self in Liferent and to Beverly's Heirs in Fee which Bond they ornained to be presently Registrat and kept by the Clerk in respect none appeared for the Heir Lady Milntoun contra Laird of Milntoun Iuly 26. 1662. LAdy Milntoun pursues probation of the Tenor of a Bond of Interdiction granted by her Husband young Calderwood Interdicting himself to her It was alleadged no Process because there was no sufficient Adminicles in Writ produced there being no Writ relative to the Interdiction Subscribed by the Party but only the Extract of Letters of Inhibition The Lords sustained this as a sufficient Adminicle in respect the question was not about a Writ that use to be retired such as Bonds In this Case also the Lords examined some Witnesses ex officio before Litiscontestation being old and valitudinary Margaret Robertson contra William Mcintosh Eodem die MArgaret Robertson pursues an Ejection against William Mcintosh who alleadged absolvitor because he offered him to prove that he had warned the Defenders umquhile Husband and that he dying shortly thereafter he inquired of his Wife if she would continue in the Possession and she declared she would not but willingly removed It was Replyed Relevat scripto vel juramento but witnesses cannot be received to prove willingness of Removing being mentis The Lords considering that the Defender alleadged no Tack nor Title in Writ but meer Possession were inclinable to sustain the Defense probable pro ut de jure but withall considering the Parties were Highlanders and had great advantage whoever had the benefite of probation therefore they ordained the Pursuer to condescend what Deeds of violence was done in ejecting her and both parties to conscend what persons were present at the Pursuers outgoing and the Defenders incoming being resolved to examine all these before answer so that there might be no advantage in probation to either party Sir John Aiton contra Adam Wat. Eodem die ADam Wat being first Infeft in an Annualrent out of Whitlands Estate Compryzed for some of the bygone Annualrents Sir Iohn Aiton being infeft after him in an Annualrent of the same Lands alleadges that Adam hinders him to uplift the Duties or poynd the Ground for his Annualrent and yet lets them ly in the common Debtor or Tennents hands until his Appryzing expire and therefore alleadges that Adam Wat ought either to Intromit and do exact Diligence and impute the same in his Compryzing or suffer Sir Iohn to do Diligence or at least that both may do Diligence effeiring to their Sums The Lords found that Adam Wat ought to be lyable for Diligence in time coming in uplifting the Rents to satisfie his Appryzing and as to the Annualrent found that after 40 days after each Term in which Adam as the first Annualrenter might poynd the Ground it should be leisom for Sir Iohn as the second Annualrenter to poynd the same without respect to Adam Wats prior Infeftment if he did not Diligence thereon within 40 days after ilk Term. Alexander Hamiltoun contra Thomas Harper Iuly 29. 1662. ALexander Hamiltoun pursues a Removing against Thomas Harper who alleadged Absolvitor because the Pursuer invaded and beat the Defender in the Session-house during the Dependence of this Cause and therefore by the Act of Parliament 1584. cap. 219. renewed 1592. cap. 173. The Pursuer cadit causa and the Defender must be Assoilzied The Lords having considered the saids Acts of Parliament and finding thereby that the Invasion must be Cognosced in a Criminal Process competent to the Justice and must be found summarly by an Inquest The Question was whether beating without effusion of Blood was such a Criminal Fact because it seems to be but a Ryot and next whether the Lords would take probation of it themselves or if it behoved to be Recognosced by the Justices The Lords found the Defense Relevant For the Act of Parliament anent violence in the Kings presence or in the Session House when the Session is sitting make such deads to incur death and therefore whether they would assign a Term to the Defender to prove that in the mean time he might proceed Criminally before the Iustice and instruct the Defense by the Sentence of the Iustice or whether they would receive the Probation themselves they resolved to hear the Pârties upon it Laird Balnagoun contra Iuly 30. 1662. THe Laird of Balnaggoun having obtained a Gift of ultmus haeres of Thomas from the Exchequer in Anno 1661. and being thereupon Infeft pursues Removing against Rorie The Defender alleadged absolvitor because the Defender stands Infeft and by vertue of his
would exclude none of the Casualities of the Superiority yet such Alienations exceeding the half of the Fee do unquestionably infer Recognition though the ingratitude be no more then this that the Vassal renders himself unable fitly to serve his Superior by delapidating his Fee or the Major part thereof how much more when he does all that in him is to withdraw himself from the Superiors Clientel by obtruding to him a Stranger alienating from him the whole Fee and albeit the Seasine be null as to other effects till it be Confirmed Yet as Craig observes in the foresaid place Vassalus fecit quantum in se erat 2ly Though by our Statute or peculiar Custom such Seasins unconfirmed are null yet by the Act of Parliament 1633. Anent Ward holdings Recognition is declared to proceed according to common Law which can be no other then the common Feudal Customs by which Customs it is sure that the Recognition is chiefly inferred by the Vassals alienation As to the implyed condition si Dominus consenserit though that were expresse yet the Vassal giving Seasine the Tradition of Seasine is inconsistant with such a condition being understood as a Suspensive condition for he that delivers Possession de facto cannot be said upon any condition not to deliver the same de facto and therefore it is but protestalio contraria facto and if it be understood as a resolutive condition as needs it must it impedes not the Alienation but only might resolve the same As to the Decision upon the not Registration of the Seasine una herundo non facit ver and albeit it might be a rule in that individual Case It cannot be extended ad alios casus although it were a Statute much lesse a Practick The Lords also repelled this Defense 4ly It was further alleadged by the Defender that Dirletouns Infeftment was granted by the KING Haeredibus assignatis quibuscunque and thereby the KING consented that he should dispone his Right to any Assigney or singular Successor and this Clause is equivalent to the ordinar Feudal Clauses Vassallo quibus dederit which is ever understood to exclude Recognition neither can this be understood to be stilus curiae as when Assigneys are casten in in Charters passing the Exchequer but this is an original Grant under the KINGS own Hand The Pursuer answered that this Defense ought to be Repelled because such Concessions contrair to common course of Law are stricti juris and not to be extended ad effectus non expressos praesertim prohibitos but the adjection of Assigneys is no ways to allow Alienations of the Fee without consent but to this effect because Feuda and Benficia are in themselves stricti juris and belong not to Assigneys unlesse Assigneys be expressed and therefore albeit no Infeftment had been taken the Disposition Charter or Precept could not be Assigned so that this is adjected to the end that those may be Assigned before Infeftment but after Infeftment Assignation hath no effect and this is the true intent of Assigneys In Dispsitions of Land it is clear when the Disponer is obliged to Infeft the Acquirer his Heirs and Assigneys whatsoever there is no ground whereon to compel him to grant a second Infeftment to a new Assigney but only to grant the first Infeftment to that Person himself or to any Assigney whatever which clears the Sense in this case It hath also this further effect that singular Successors thereby might have right to a part of the Lands which though it would not infer Recognition if done yet if there were no mention of Assigneys it would be null and as not done in the same Case as a Tack not mentioning Assigneys The Lords Repelled this also 5ly It was further alleadged that Recognition takes only place where there is contempt and ingratitude and so no Deed done through ignorance infers it as when it is dubious whether the Holding be Ward or not and therefore Recognition cannot be inferred seing there is so much ground here to doubt this Right being a taxed Ward and to his Heirs and Assigneys and it is not clear whether it would be incurred through a Seasine à se or to one in his Family whereupon the wisest of men might doubt much more Dirletoun being illiterate not able to read or write It was answered ignorantia juris neminem excusat 2ly Vbi est copia peritorum ignorantia est supina Here Dirletoun did this Deed clandistenly without consulting his ordinar Advocats or any Lawyers and so was inexcusable and if pretence of ignorance could suffice there could be no Recognition seing it cannot misse to be ignorance that any should do that Deed that will be ineffectual and losse their Right The Lords Repelled this Defense and all the Defenses joyntly and Decerned Lord Loure contra Earl of Dundee February 6. 1663. THe Lord Loure pursues a Reduction of a Disposition made by Carnegy of Craig to the Earl of Dundee as being posterior to the Pursuers Debts and in prejudice thereof upon the Act of Parliament 1621. against Bankrupts and for instructing of the Reason repeats the Disposition it self being betwixt confident Persons Cusing Germans and without cause onerous in so far as it bears Reservation of the Disponers and his Ladyes Liferent and Provision to be null if Craig have Heirs of his Body in whose favours Dundee is to denude himself upon payment of his expense The Defender alleadged that the Lybel is not Relevant Primâ because Craig is no Bankrupt nor any Diligence done against him before the Disposition 2ly He is not insolvent by the Disposition because there is reserved to him a Power to sell as much of the Land as is worth 80000 lib. for Debt and so is not in fraâdm creaâ oruâ but the Pursuer ought to pursue for that Provision either by Appryzing or personal Action The Lords found the Reason relevant and proven by the tenor of the Disposition and therefore reduced to the effect that the Pursuer mâght affect the saids Lands with all Legal Diligence for his Debt as if the Disposition had not been granted for they thought seeing by this Disposition there remains not Estaâe sufficient ad paratam executionem and that there was no Reason to put the Pursuer to insist in that Clause to restrict himself thereby to a part of the Land but that he ought to have preference for his Debt upon his Diligence affecting the whole Land William Montgomery contra Theoder Montgomery and Mr. William Lauder February 10. 1663. WIlliam Montgomery as Donatar to the Liferent-escheat of Theodor Montgomery pursues a special Declarator against the Tennents of Whit slide belonging to Margaret Hunter in Liferent and now to Theodor jure ãâã for their Duties It was alleadged that the Horning was null because the Dâbt was satisfied before Denunciation The Pursuer answered that it was not competent in the special Declarator to question the nullity of the Horning 2ly Though it were in a
answered many exceptions though they bear not so expresly yet they are rather Declaratory of a Right then in being then statutory introducing a new Right The Lords found Singular Successors free and reduced the Decreet pro tanto Earl of Lauderdail contra Wolmet Eodem die THe Earl of Lauderdail pursues a Spuilzie of the Teynds of Wolmet against Major Biggar who alleadged absolvitor because the Lands of Wolmet were Valued and approven The Pursuer replyed that the said Decreet of Valuation was improven by a Decreet of Certification obtained there against at the instance of Swinton having Right to these Teynds for the time by a Gift from the Usurper The Defender duplyed that no respect ought to be had to the said Certification First because this Pursuer derives no Right from Swintoun being only restored to his own Right and Swintouns Right from the Usurper found null so that as the Pursuer would not be burdened with any Deed of Swintouns to his prejudice neither can he have the benefit of any Deed of Swintouns to his advantage 2dly The said Certification was most unwarrantable in so far as the Decreet of Valuation being in the Register of the Valuation of Teynds the Defender was not oblidged to produce it but the Pursuer ought to have Extracted it himself 3dly All Parties having interest were not called to the said Certification viz. Mr. Mark Ker the Wodsetter by a publick Infeftment in whose Right Major Biggar now Succeeds And last the Defender alleadged that he had a Reduction of the Certification upon Minority and Lesion and the unwarrantable Extracting of it The Pursuer answered to the first that seing Swintoun did use the Pursuers Right all reall advantages which were not Personal but consequent upon the Real Right and which belonged not to Swintoun personaliter but as prerended proprietar do follow the Real Right it self and Accresce to the true Proprietar as if he had acquired a Servitude or had reduced the Vassalls Right âb non solutum canonem To the Second oppones the Certification wherein compearance was made for Wolmet and three Terms taken to produce and no such Defense was alleadged as that the Valuation was in a publick Register To the Third the Pursuer needed not know the Wodsetter because it was an Improper Wodset the Heretor Possessing by his Back-bond as Heretable Possessor seing the Decreet of Valuation was at the Heretors instance it was sufficient to Reduce it against his Heir for it would not have been necessar to have called the Wodsetter to obtain the Decreet of Valuation but the then Heretable Possessor so neither is it necessar to call the Wodsetter to the Reducing or improving thereof To the last no such Reduction seen nor ready neither the Production satisfied The Lords Repelled the Defense and duplyes in respect of the Certification which they found to accresce to the Pursuer but prejudice to the Defender to insist in his Reduction as accords and declared that if the Defender used diligence in the Reduction they would take it to consideration at the conclusion of the cause Balmirrino contra Sir William Dicks Creditors Iuly 14. 1664. JAmes Gilmor for the use of the Lord Balmirrino being Infeft in the Lands of Northberwick upon a Right from Sir Iohn Smith who had Right from Sir William Dick pursues the Tennents for Mails and Duties Compearance is made for Sir Williams other Creditors Wodsetters and Appryzers who alleadged absolvitor because the Pursuers Right is Extinct in so far as Balmirrino being Debitor to Sir William Dick and charged by him had acquired this Right from Sir Iohn Smith to compence Sir William and did actually compence him by alleadging the same reason of Compensation producing the Disposition then blank in the Assigneys name whereupon the Letters were Suspended Simpliciter aud my Lord assoilzied and the Disposition given up to Mr. Alexander Dick which is instructed by the Testimony of William Douny Clerk at that time Balmirrino answered First That William Dounys Testimony could not make up a Minute of Decreet where there were no Process nor Adminicle to be seen 2dly Though the minute of the Decreet were lying before the Lords not being Extracted the Lord Balmirrino might passe from his Reason of Compensation and take up his Disposition which is always permitted before Litiscontestation or Decreet and Litiscontestation is never accounted untill the Act be Extracted So that there being no Act of Litiscontestation Extracted in the said Process but only an alleadged minute of a Decreet without an Act neither Partie might resile 3dly Though the Suspender might not resile Simpliciter yet it is still competent to him to propone a several reason of Suspension before Extract being instantly verified and now he propones this Reason that the Debt awand by him to Sir William Dick is a publick Debt and the Parliament has Suspended all execution thereupon till the next Parliament which by consequence liberats him from making use of or instructing his Reason of Compensation The Creditors answered it was most ordinar for the Lords to make up Minuts by the Testimonies of the Clerks when they were lost So that William Douny being a famous Clerk his Testimony must make up the Minute after which the Lord Balmirrino cannot resile from his Reason of Compensation or take back the Disposition seing it was his own fault he did not Extract it and cannot make use now of a Supervenient Exception that was not at that time Competent in prejudice of their Creditors Balmirrino being now in much worse condition The Lords found that the Lord Balmirrino might now propone a Reason of Suspension emergent on the late Act of Parliament and pass from his Reason of Compensation and take up his Disposition seing it did not appear that the Process was miscarried through Balmirrino's fault or that the Disposition was delivered to Mr. Dick neither of which did appear by William Dounys Testimony Thomas Crawfoord contra Prestoun Grange Iuly 15. 1664. THomas Crawfoord as Assigney by the Earl of Tarquair to a Decreet of the Valuation of the Teynds Lethinhops obtained Decreet against the Laird of Prestoun Grange Heretor thereof who Suspended upon this Reason that these Lands were a part of the Patrimony of the Abbacy of New-botle which Abbacy was of the Cistertian Order which Order did injoy that Priviledge that they payed no Teynds for their Lands while they were in their own Labourage or Pastourage of which Priviledge not only the Abbots but after them the Lord New-botle and the Defender hath been in Possession and accordingly Sir Iohn Stewart of Traquair having pursued the Lord Newbotle before the Commissaries of Edinburgh in Anno 1587. For the Teynds of the Lands of Newbotle upon the same Defense was Assoilzied which Decreet standing must be sufficient to the Defender ay and while it be reduced likeas the Defender stood Infeft in the saids Lands by the King with express Priviledges decimarum more solito The Charger answered
amongst themselves how dangerous it were if the Creditors or Persons intrusted obtaining Infeftment of an intrusted Estate the Back Bond of Trust being personal would not exclude them and albeit the Person intrusted were not solvendo as in this Case the Intrusted Estate as to the Heirs and Creditors would be inavoidablie lost And some being of opinion that a Personal Exception upon a Back Bond could not be competent to burden or qualifie a real Right or an Action for obtaining thereof But the most part were of opinion that albeit the Right if it were compleat would be real yet this Action for obtaining thereof is but Personal for real Actions are such only which proceed upon real Rights and against the Ground such as upon Annualrents and therefore this being a Personal Action might be excluded or qualified by a Personal Exception upon the Back Bond. And therefore they Adjudged with the Burden of the Back Bond. Earl of Sutherland contra Hugh Gordoun December 1. 1664. THe Earl of Sutherland pursues a Declarator against Hugh Gordoun his Vassal that his Right being holden Feu two terms has run into the third and thereby the Right is extinct not only by the Act of Parliament but by a particular Clause in the Defenders Infeftment at least in the Disposition whereupon his Charter and Seasine proceeds There is also called an Apprizer who alleadged that he being a singular Successor and a stranger to his Authors Rights during the Legal unexpyred is not oblieged to possess and cannot omit his Right by his Authors fault or by his own Ignorance The Lords having considered this Case and reasoning amongst themselves upon the difference of a Clause Irritant in an Infeftment Feu and the benefit of the Act of Parliament they found that if the Pursuer insisted upon the Act of Parliament the Defender might purge the Failzie by payment at the Bar but if he insisted upon the Clause in the Infeftment it behoved to be considered whether that Clause was in the real Right by the Charter and Seasine either specially or generally under the provisions contained in the Disposition Or if it was only in the Disposition In which case though it might operat against the Vassal or his Heirs yet not against the Appryzer unless the Seasine had been immediatly upon the Disposition In which case the Disposition serves for a Charter And therefore ordained the Pursuer to condescend and it is like that in favours of the Appryzer being a stranger they would suffer him to purge at the Bar utcunque in this Cause it was not found necessar to cite all Parties at the Mereat Cross albeit the Letters bear so Veatch contra Paterson December 2. 1664. PAterson having set some Lands to Veatch in Anno 1645. The Tack contained a Clause that the Tennents should be relieved of all publick Burdens and having left the Land in 1653. two or three years thereafter he raised a Pursuit against Paterson the Heretor for payment to him of all the publick Burdens he had payed out and renews the same Pursuit and produces the Receipts of the publick Burdens and alleadges that there was a Penalty in the Tack of an hundred pound that he should Possesse Veatch at the Entry of the Tack wherein he failzied The Defender alleadged that it must be presumed that all the Tickets and publick burden was allowed in the Rent or otherwise past from by the Pursuer seing he voluntarly payed his hail Rent Or otherwise all the publick burdens in Scotland payed by Tennent may infer a Distress upon their Masters to repay the same The Pursuer answered that that presumption could not take away his Writ viz. the Tickets produced but if the Defender gave Discharges he ought to have made mention of the allowance of the publick Burdens therein The Lords having considered the Case as of Importance for the preparative found the Defense upon the Presumption Relevant unless the Pursuer instruct by Writ or the Defenders Oath that these Tickets were not allowed in the Rent And as for the Penalty the Lords found that it ought to be restricted to the damnage and that the same was not now probable otherwise then by the Defenders Oath Iames Wilson contra Alexander Home of Linthill Eodem die JAmes Wilson having pursued Alexander Home of Linthill as Sheriff of the Shire for the Debt of a Rebel whom he suffered to Escape In which this Defense was found Relevant that the Rebel in the taking had wounded these that were taking him and had Escaped vi majore The Laird of Clerkingtoun contra The Laird of Corsbieâ December 3. 1664. SIr William Dick having Appryzed some Lands holden of the Town of Irving and charged the Magistrates to receive him The Laird of Corsbie having Compryzed the same Lands some dayes after was received by the Town the next day after Sir Williams Charge and about a Month after Sir William was also Infeft Clerkingtoun having Right from Sir William pursues Corsbie First for Mails and Duties Corsbie was found to have the benefit of a possessory Judgement by seven years Possession and thereupon was Assoilzied Now Clerkingtoun insists in a Reduction on this Reason that he having first Appryzed and Charged the Superiour they Colluded with the Defender and gave him a voluntar infeftment the next Day after his Charge and therefore his Infeftment though after ought to be drawn back to his Charge and Diligence and he preferred The Defender answered that the Reason ought to be Repelled because the weight of the Reason is the Pursuers Diligence and the Superiours Collusion which hold not because all the Diligence Sir William Dick did was the first Charge upon the Letters of four Forms which bear only with Certification that in Case of Disobedience Letters of Horning would be direct simpliciter and this is no more then a Premonition and put no Obligation upon the Superiour until the second Charge which was Horning Neither did Sir William ever insist any further then the first Requisition The Lords found that the first Charge was sufficient in this case where the Superiour gave an Infeftment before the Expyring of the first Charge and before the second Charge could be given and thereby that a Superiour might prefer an Appryzer though posterior to a prior do what Diligence the prior could But they found that seing Sir William Dick had been silent until his Legal Reversion was Expyred and had not challenged the Defender who was in Possession and thereby had Excluded him from the benefit of Redemption competent to him if he had been found to be but the second Right within the Legal Therefore the Lords found Sir William Dicks Appryzing Redeemable by Corsbie within year and day after the Sentence Mr. Iames Hutcheson contra Earl of Cassils Eodem die MR. Iames Hutcheson having Charged the Earl of Cassils for his Stipend The Earl Suspends and alleadges first that the Charger had no right to the Whitsonday Term 1663. because
and albeit he had no active Title whereby to Intromet that cannot free him from being lyable passive more then a vitious Intromettor or one behaving as Heir but he ought either to have forborn or procured to himself a Tutory dative and unless Pro-tutors be universally lyable Pupils will be destroyed because any body will meddle with their Means knowing they are lyable but for what they meddle with and the Aânualrent thereof which perhaps will not be made out against them but if they be universally lyable they will either wholly abstain or orderly Intromet by procuring a Title and albeit Overseers be not lyable in the first place yet they are tutores honorari lyble after the other Tutors are discussed As to the third the receipt of the Bonds albeit it bear in Custody yet it is proven by the Writs produced quod se immiscuit by uplifting the sums contained in some of the Bonds and therefore is lyable for the whole The Lords having heard and considered this case at length found that seing there was no Law nor Custom of ours to make a Pro-tutor lyable in all points as a Tutor and that the Civil Law oblieges not us but only we ought to consider the equity and expediency thereof and therefore they found that they could not condemn the Defender for omissions seing there is no Antecedent Law nor Custom and therefore found that as Overseer he was oblieged to nothing and that as Intrometter he was lyable for what he intrometted with and the annualrent thereof after his Intromission and found him lyable for the hail Bonds in his Tickets seing he meddled with a part of the Money thereof and found that if he had meddled with a part of the Sheep that would make him lyable for the whole Sheep of that Flock and the Annualrent thereof and found that his being Designed Tutor contrair to the Testament did not instruct but the Lords Declared that in cases occurring in all time comingâ they would find Pro-tutors lyable in all points as Tutors and ordained an Act of Sederunt to be made thereupon and published in the House to all the whole Advocats that none pretend Ignorance Sir Alexander Hoom contra Iune 10. 1665. ãâ¦ã pursues for mails and Duties of certain Lands It was alleadged for the Tennents no Process because they offered them to prove that they were Tennents by payment of Mail and Duty to Sir Alexander Hoom their Minister before intenting of this Cause and he was not called 2ly Absolvitor because they were Tennents to the said Sir Alexander who had a right of an Appryzing and Diligence thereupon anteriour to the Pursuers Right The Pursuer answered to the first non relevat in an action of Mails and Duties albeit it would be relevant in a Removing In which two Actions the Lords have still keeped that difference that in Removings the Heretor should be called because thereby his Possession was to be interverted but in Mails and Duties the Tennents might Suspend on Double Poinding and thereupon call both Parties Or if a Tennent did collude the master might use the Tennents name but double Poinding could not have place in Removings To the second it is not competent to the Tennents to Dispute their Masters Right which is to them jus tertij but they should have intimate to their Master to compear and defend his own Right who if he will compear and produce his Interest may be heard The Lords Repelled both Defenses unless Sir Alexander compear and produce his Interest A Letter from the KING Iune 14. 1665. THe Lord Ballantine The saurer Depute compeared and produced a Letter from His Majesty to the Lords bearing that His Majesty having heard a doubt moved before him whether Declarators of Ward Non-entries c. should be discussed before the Lords of Session or Lords of Exchequer His Majesty Declared His Pleasure that in the mean time till Hâs Majesty got further evidence and clearing therein such Actions should be pursued before the Lords of Session Which Letter was ordained to be Recorded in the Books of Sederunt Aikman contra Iune 15. 1665. AIkman having Charged upon a Bond of borrowed Money Suspended and alleadged that the Charge was truely for a Prentisâ fee for a Royto a Writter who was oblieged to Educat him three years and it is offered to be proven by Witnesses that he beat the Prentise and put him away with evil usage within a year and an half and so can have no more at most then effeirand to that time The Charger answered that he could not devide the Probation in one single Defense both by Oath and Witnesses and that he could not take away Writting by Witnesses in whole or in part The Lords sustained the Probation by Oath and Witnesses as proponed Cruikshank contra Cruikshank Iune 16. 1665. GEorge Cruikshank pursues the Relâct and Executrix of Cruicksshank his Uncle for payment of a Bond of 400. Pound The Defender alleadged absolvitor because the Defunct had granted an Assignation of certain Sums of Money to David Cruikshanks the Pursuers Brother wherein there was a Provision in favours of the Pursuer that the said David should pay to him aâthousand Pound which must be understood to be in satisfaction of this Debt in the first place nam nemo presumitur donare quamdiu debât The Pursuer answered that the foresaid Rule hath many exceptions for it being but a presumption a stronger presumption in the contrair will elide it as in this case The Defunct had no Children and had a considerable fortone and the Pursuer and the said David his Brother were the Defuncts nearest of Kin and albeit the foresaid Disposition be not in the express terms of a Legacy yet it is donatio mortis causa for it contains an express power to the Defunct to Dispone otherwise during his life and in another Provision therein it bears expresly to be in satisfaction of Debt due to that other Party and says not so as to the Pursuer all which are stronger extensive presumptions that the Defunct meaned to Gift no less then the whole thousand pounds Which the Lords found Relevant William Wright contra George Shiel Eodem die WIlliam Wright as assigney by Iohn Shiel in Carlowrie obtained Decreet against George Shiel in Nortoun as Heir to Iohn Shiel his Brotherâ for payment of two Bonds George Shiel Suspends on this Reason that the Assignation was gratuitous without onerous Cause which he offered to prove by the Assigneys Oath and offered to prove by the Cedents Oath that the Debt was satisfied The Lords having at length considered and Debated this Case among themselves whether the Cedents Oath could prove against an Assigney when the Assignation was gratuitous some were of opinion that it could not because nothing can prove but Writ or two Witnesses or Oath of Party and the Cedent is not the party but the Assigney and albeit the Cedent could be a Witness he is but one and because
Cautioner who were free to have pursued for the Tochar and did not and after 40. years she cannot be put to instruct that the Tochar was payed albeit she had been Debitor therefore her self much more when another is Debitor The Lords found both these replyes relevant Mr. John Colvil contra The Lord Balmirino Iuly 6. 1665. MR. Iohn Colvil as Executor confirmed to Umquhil Mr. Iohn Colvil Minister at Kirknewtoun pursues the Lord Balmirino for the Stipend the year 1663. and for the profit of the Gleib The Defender alleadged absolvitor because payment is made bona fide to the intrant before intenting of this Cause It was answered it could not be payed bona fide because the Minister died after Ianuary 1663. VVhich being so notour to my Lord Balmirino to whom the most of the Paroch belongs and he being so near it he ought to have made payment to no other of that year which belonged to the Defunct Minister as his Ann extending to the whole years quia annus inchoatus habeâur pro completo as to the Ann so that if the Minister lived till the first of Ianuary he has that whole year The Defender answered that an Ann is only due to the VVife and Bairns of the Defunct Minister and this Minister had none 2ly That the point is so dubious in Law he knew not that it would be his unless he had lived till Whitsunday 3ly The benefit of the Gleib must be the intrants and falls not under the Ann as a part of the Stipend no more then the Manss The Lords repelled the Defense as to the Stipend and found it belonged to the Executor as nearest of kin and that the Defunct surviving the first of January gave him that whole year but found that the Gleib did not fall under the Ann nor did belong to the Defunct but only the Crop thereof if it were sowen by himself before he dyed Earl of Argyl contra Mcdougalls of Dumolich and Ziner Iuly 14. 1665. THe Earl of Argyl having raised a double poynding in name of the Tennents of certain Lands calling himself on the one part and Mcdougals on the other as both claming right to the Mails and Duties Mcdougals produce a Decreet of Parliament whereby they having pursued the late Marquess of Argyl alleadging that he had obtained the Right and Possession of these by Force and Oppression during the troubles whereupon his Rights were reduced and they restored to their Possession The Earl of Argyl produced his Seasine upon the Kings Gift with two Dispositions of these Lands granted to his Father one in Anno 1632. and another in Anno 1639. And thereupon craved to be preferred Mcdougals produced a disclamation of the Process in name of the Tennents and alleadged no Process because the Tennents who were pursuers past from the pursute It was answered that their names was but used that the Parties might discusse their Rights and so they could not disclame it being ordinar to use Tennents names in double poyndings It was answered that there was no Reason that Tennants should be forced to make use of their names to intervert their Masters Possession The Lords found that the Tennants could not disclame especially the possession being but late by Decreet of Parliament and was contraverse It was further alleadged for Mcdougals that there was nothing particularly lybelled as Rents due by the Tennants and therefore there could be no sentence The Lords repelled the alleadgeance and found the Sentence might be in general to be answered of the Mails and Duties as is ordinar in Decreets conform It was further alleadged for Mcdougals that seing this double poynding was in effect now used as a Declarator of Right no Process thereupon because in all Declarators Law allows the Defenders 21 days upon the first Summons and six on the next that they may prepare and produce their Rights and here there is but one Summons on 6 days 2ly No Process because Mcdougals being founded upon a Decreet of Parliament my Lord Argyl produces no Title but only a Seasine not expressing these Lands 3ly Decreets especially of Parliament cannot be taken away but by Reduction and not thus summarly It was answered that my Lord Argyl insisted here for taking away the pretended Decreet in Parliament and restoring the King and Donatar to the possession of the Lands so that in effect it is not so much a Declarator of a Right as a possessory Judgement And as for the Title it is sufficient to produce a Siasine seing in the Decreet of Parliament My Lord Argyls Right and possession is quarrelled as wrong and therefore was acknowledged to have been and seing Mcdougals produces no other Right and the King's Advocat concurres and if need beis my Lord Argyl offers to prove the Lands in question are parts and pertinents of the Lordship of Lorn exprest in his Seasine and albeit this be pretended to be a Decreet of Parliament yet by Sentence of Parliament since it is remitted to the Lords and is in it self visibly null as having been intented against my Lord Argyl and pronounced after his death and Forefaulture without calling the Kings Officers The Lords repelled these Defenses in respect of the replyes James Mathison contra Harie Gib Eodem die JAmes Mathison having obtained a Decreet before the Commissars of Edinburgh against Gib he Suspends and alleadges it was not a cause consistorial being a bargain of Victual and that it was not probable any other ways but by his Oath now after 12. or 13. years In respect of the Act of Parliament anent house Mails and others which comprehens this case The Lords repelled the alleadgeance and found that bargain of Victual not comprehended under that Act of Parliâment James Borthwick contra Janet Skeen Iuly 15. 1665. JAmes Borthwick being Infeft in the Lands of Oversneip pursues Reduction and Removing against Ianet Skeen the Liferentrix It was alleadged that the Feer being minor non tenetur placitare super haereditate paterna And for the Liferenter that the minor was oblidged to warrand her Liferent-right and her Possession was the minors Possession so that if her Right were reduced and she removed the priviledge of the minor were altogether overthrown It was answered That the priviledge was personal and stricti juris and was to be extended to Majors and as for the warrandice it was never sustained as a ground to exclude a Reduction because warrandice would be inferred against a Minor which is but a personal obligement and not haereditas The Lords repelled the alleadgance for the Liferenter Who alleadged further that her Right being Reduced the Fee was absolute in the person of the Minor who would not suffer the Liferentrix to be removed but she did possesse by the Minors tollerance It was answered that the Pursuers Reduction behoved to accresce to him and his Right and not to the Minors Right that he behoved to enter to the Liferenters possession which would not prejudge the Minor for if
Eodem die JOhnstoun having Appryzed the Lands of Achincorse and charged the Lord Dumfries his Superiour to receive him pursues the Tennents thereof for Mails and Duties Compearance is made for the Lord Dumfries Superiour who alleadged no Process till a years Rent were payed to him as Superiour 2ly It is offered to be proven that Achincorse the Vassal was in nonentrie or the Liferent Escheat fallen by his Rebellion and therefore the Superiour ought to be preferred The Pursuer answered to the first that seing it was the Superiours fault he received not him upon the charge albeit he offered to receive him now he could not have a years Rent till the Pursuer insisted to be infeft To the second the Defense ought to be Repelled seing there was no Declarator intentit The Defender answered that seing he was to change his Vassal and the Appryzer sought possession before he had access he behoved to pay the years Rent seing by the Appryzing and the charge the Superiour will be excluded from his Casualities To the second the Superiour being acknowledged by the charge he might crave the Casualities of the Superiority by way of competition and offered to produce the Horning cum processu The Lords sustained the first Defense but not the second seing there was no Horning produced nor Declarator intentit Janet Brotherstones contra Ogil and Orrocks Iuly 26. 1665. JAnet Brotherstones by her Contract of Marriage declaring that she had in Money Bonds and Goods 4000 merks is provided to all the conquest and to the Liferent of the whole Means and Moveables she pursues her Husbands Heirs for implement who alleadged absolvitor because she has not fulfilled her part of the Contract and instructs not that she delivered to her Husband 4000. merks in worth or wair It was answered it must be presumed that she has done it after so long time seing all she had came in the Possession of her Husband The Lords found the presumption not sufficient but before answer ordained the pursuer to condescend by Witnesses or otherwise how she would prove that she had that means the time of the Marriage and ordained these to be examined ex officio Thomas Kennedie of Kirkhill contra Agnew of Lochnaw Iuly 27. 1665. KEnnedie of Kirkhill as Assigney by Thomas Hay of Park to a Bond of 1000 lib. granted by Andrew Agnew younger of Lochnaw charges him thereupon who Suspends and raises Reduction on this Reason that the Bond was granted at the time of his Contract of Marriage clandestinelie without the knowledge of his Father who was Contracter contra pacta dotalia contra bonos more 's The Defender answered that he having given a very great Tochar viz. 10000. lib. above his Estate which is all payed to his Good Sons Father he did declare that he was not able to give so much and thereupon he got this Bond not to have Execution till after his death which he might lawfully do having given a Tochar suitable to the condition of the Receiver and above the condition of the Giver The Lords repelled the Reason in respect of the Answer This was thereafter stopt to be further heard Lilias Hamiltoun contra Her Tennents Eodem die LIlias Hamiltoun being Infeft by her Husband in Liferent pursues her Tennents compearance is made for their present Master who alleadged that her Husbands Right was only a Wodset granted by him and that he had used an Order and had Redeemed the Wodset and payed the money to the Pursuers Husband and neither knew nor was oblidged to know the Pursuers base Infeftment from her Husband the Wodsetter which had never any other Possession but the Husbands It was answered that the Pursuers Seasine being Registrate he was oblidged to know the same as well as if it had been an Inhibition especially seing there was no Process of Declarator in which case all Parties having intress should have been called at the Mercat Cross but a voluntar Redemption albeit upon an Order The Lords sustained the Defense notwithstanding of the Reply Adam Rae contra Heretors of Clackmannan Eodem die UMquhile Colonel Rae having advanced Victual to the Armie at Leith in Anno 1650. And gotten an Assignation to the Maintenance of August and September from Sir Iohn Smith then General Commissar in satisfaction thereof pursues the Heretors of Clackmannan for their proportions who alleadged that by their quartering of the Kings Armie their whole Rents Anno 1650. was exhausted It was answered that it was not our that the exhausting was after the Battel of Dumbar which was upon the third of September 1650. And so could not extend to the maintenance of August and September which was Assigned before for so onerous a cause The Lords repelled the Defense in respect of the Reply Captain Muire contra Frazer Iuly 27. 1665. CAptain Muir having obtained Decreet against the Heir of Colonel Hugh Frazer for 1000 merks before the Commissioners in Anno 1658. Charges thereupon They Suspend and raise Reduction on this Reason that the Decreet was null without probation proceeding only upon a Copy of an obligation alleadged taken out of the Register by one William Baily who keeped the same at London which could not prove not being under the hand of the Clerk Register or his Deputes which being proponed in the Decreet was unjustly repelled The Pursuer answered First There was no review raised within a year conform to the Act of Parliament and so the Decreet was not quarrellable upon iniquity 2ly Bailies Oath was taken by Commission that the Extract was subscribed by him 3ly The Defender proponed a Defense of payment and so acknowledged the Debt Debt It was answered that the Suspenders were and are minors and in the Act of Parliament there is an exception of Minors that they may Reduce these Decreets within a year after their Majority 2ly They ought to be reponed against their proponing of payment being Minors and as to Bailies Oath neither his Subscription nor Oath can make a probative Extract unless the new Extract were now produced seing the Registers are returned The Chargers answered that if the Suspender would alleadge that any Book of the Register containing Writs Registrat about the time of this Extract were extant and returned relevat but it is known that several of the Books are lost and this amongst the rest The Lords would not sustain the Decreet upon Bailies extract simplie neither did they put the Charger to the proving of a tenor but allowed the charger to condescend upon the way of his Instruction that such a Bond was truly subscribed by the Witnesses insent or otherwayes and ordained the Witnesses to be examined Adam Rae contra Heritors of Clackmannan Iuly 28. 1665. IN the Cause of Adam Rae mentioned yesterday some of the Heretors alleadged absolvitor because they were singular Successors and by the Act of Parliament for the Old Maintenance Singular Successors were excepted The Lords repelled this alleadgeance and found that exception only to be
extended to the maintenance contained in that Act. Bessie Scot contra Somervail Eodem die BEssie Scot having charged Somervail who was Cautioner in an Suspension for payment of an Sum of Money contained in a Bond Suspended He Suspends on this Reason That the Money was consigned in the hands of Mr. George Gibson Clerk to the Bills for the time It was answered that Mr. George Gibson was now out of Office and insolvent and the Consignation behoved to be upon the peril of the Consigner It was answered that the the Consignation must be upon the peril of that Partie who was the cause of Consignation and that was the Charger in so far as it was instructed by an Instrument produced that the Suspender offered the Annualrent and so much of the Penaltie as the Charger would have Declared upon her Oath that she had truely payed which she refused unless the whole Penaltie were payed whereupon he consigned through her Fault The Lords sustained the Reason and ordained the Noltar and Witnesses to depon upon the Truth of the Instrument for Instructing thereof Dowglas contra Cowan and Russel Iuly 29. 1665. PEter Russel by his Ticket acknowledged him to have received a certain Quantity of Wine and oblidged him to make payment thereof according to the Condition agreed upon Dowglas being Assigned to the Ticket insists for the ordinary Price of Wine It was alleadged no Process for the ordinar price of Wine but only for the price agreed on which behoved to be condescended on and proven by the Debitors Oath being above an hundred pounds It was answered that seing these Conditions were not adjected the ordinary price was to be understood unless it were proven by the Debitor what they were c. that they differred from the common Price The Lords found that the Debitor by his Ticket behoved to condescend on the Conditions qui potuit legem apertius dicere and not the Pursuer but they found Witnesses might prove the condition Heretors of Don contra Town of Aberdeen Eodem die THis day Report being made concerning the Cruives of Don. The Lords found that there was no necessity to keep alwayes open a mid-stream notwithstanding the several Acts of Parliament made thereanent which upon enquiry through the Kingdom they found to be in desuetude and especially in these Cruives to be made past memory with Saturndayes stop only and ordained the distance of the Hecks to be three Inch Scots measure whereof 27. make an Elle vide supra Lady Knapeirn contra Sir Robert Farquhuar November 9. 1665. SIr Robert Farquhar being Infeft in certain Lands by the Laird of Knapeirn with his Ladies consent pursues the Tennents and obtains Decreet for Mails and Duties The Lady pursues Reduction on these Reasons that she stood Infeft and in possession eleven years after her Husbands death bona fide without any persuit and so being in judicio possessorio she was tuta reââptione It was answered that the benefit of a possessorie Judgement was never granted to any partie in prejudice of these to whom that Party had Disponed or consented to a Disposition which includes an Obligation to possesse them nor can they be in bona fide contrair their own consent and deed to possesse The Lords repelled the Defense in respect of the Reply It was further alleadged that Sir Robert by a Declarator produced had acknowledged nothing of that Wodset due but what was contained in a fitted accompt written by him and subscribed by both Parties which did innovat the Wodset and Sir Robert could have no Right thereby but by this Compt which only could touch the Husband Secondly Albeit the Wodset did stand in so far as the Compt extends yet Sir Robert ought to have no benefit by the Wodset till he produce the Accompt It was answered that the Accompt was never in his custodie but given to Knaperin in whose favours it was introduced and seing it was clear that his Wodset was not extinct but restricted the Pursuer behoved to condescend in quantum and to prove it alliganti incumbit probatio The Lords ordained and appointed Sir Roberts Oath to be taken before answer on his having the compt and yet they sound that he ought to produce ãâã but the Interlocutor was stopt the next day Teilzifeir contra Geddes November 11. 1665. MArion Geddes having granted to Samuel Veatch a blank Bond of 2000. merks Tailzifer being Creditor to Samuel Veatch Arrests all Sums in her hand owing to Samuel she depones that she was no wayes Debitor to Samuel but by a Bond given Blank in the Creditors name and that she knew not whose name is filled up therein compearance is made for whose name is filled up in the Bond and he alleadges he ought to be preferred to the Arrester because he offers him to prove his name was filled up in the Bond and that before the Arrestment the Bond was Registrate in his name and that before the said Marion deponed he had used Inhibition thereupon which she could not but have known It was answered for the Arrester that he ought to be preferred because albeit the Bond was blank ab initio yet in rei veritate Samuel Veatch was Creditor and so he behoved to be Legaily denuded which could not be done by filling up any other persons name without intimation thereof made to the Debitor for seing a Direct Assignation was not valid without an Intimation much less should this indirect way by the Creditors filling up another name than his own in the Blank which is in effect an Assignation And seing the Lords have already found that the Debitor acknowledging that he gave a blank Bond to any person and knows not whose name is filled up in it is lyable to any Arrester albeit he be under hazard to pay again to that person who has his Bord in justice it followeth that such Bonds must be intimat otherwayes it will unavoidably infer double payment It was answered that the Law requires Intimation to Assignation as a necessary Solemnity but has not required the same to the filling up of a Blank-bond the case whereof is not alike with an Assignation because where the Bond is blank the Debitor cannot pay any thing bona fide safely till he see the Bond filled up but where he knows the name filled up he may pay bona fide to the Cedent not knowing of the Assignation It was answered that the Law did require to all Assignations Intimation but the Case of Blank-bonds was but a late invention to defraud Creditors that it might not be known who was Creditor but seing it is truly an Assignation it deserves no favour more than a Direct Assignation and so should have as much Solemnity The Lords preferred the Arrester but because the Case was a leading Case and new after a second Interlâcutor adhering they allowed the Advocats to offer by Bâll any new Reasons and particularly if it could be alleadged that the Debitor granter of the
jus mariti could not carry her Liferent seing immediatly after the marriage he went out of the Countrey and was never heard of since and she had obtained Decreet of Adherence against him and was going on in a Divorce for malitious deserting The Lords Repelled the Alleadgance seing the Divorce was not compleat and this was four years anterior The said Isobel further alleadged absolvitor for the Rents of her Dwelling-house for bygones and for what she had uplifted because she had done it bona fide cum titulo viz. her Husbands obliegement to aliment her as his Wife bona fide possessor facit fructus consumptos suos Which the Lords found Relevant and that albeit her Husband would be lyable for these Rents which alimented his Wife yet not she David Veatch contra Iohn Duncan Eodem die DAvid Veatch as heritor of the Miln of Dersie pursues Iohn Duncan for abstracted Multures and obtains Decreet He Charges and Iohn Suspends both parties being ordained to produce their Rights the Heritor of the Miln instructs that his Author was first Infeft in the Miln before the Defenders Author was Infeft in the Land and produces a Decreet of the Lords in Anno 1575. declaring the Thirlage wherein it was alleadged that the Heretor of the Miln being first Infeft of the Common-author and producing a Precept from Cardinal Beaton then Bishop of St. Andrews Common-author ordaining the Tennents of the Defenders Land to pay the Multure to the Miln of Dersie It was alleadged this was not sufficient seing the Charter did not Thirle the Defenders Lands but was only of the Miln and Multure thereof generally as for the Cardinals Precept it was not with consent of the Chapter and so could not extend beyond the Bishops Life yet the Lords declared the Astriction notwithstanding it was now alleadged that the Defender was Infeft cum molendinis muliuris by vertue whereof he had prescribed his freedom by 40. years time It being answered that once being Thirled by the Common-author no Charter granted by him thereafter could prejudge the Feuar of the Miln And as for Prescription offered to prove Interruption by paying of Insucken-multures within the space of 40. years William Cranstoun contra Walter Pringle Decemb. 12. 1665. WIlliam Cranstoun being Vassal to Greenknow he was amerciat in his Court for a Blood committed upon Walter Pringle and being charged Suspends upon this Reason that Greenknow not being a Baron or the Kings immediat Tennent had no power of Blood-waits unless he had had an express Deputation from his Superiour the Marquess of Huntly who is Baron only having the Jurisdiction It was answered that Greenknow was Infeft cum curiis bloodwitis Which the Lords found sufficient Mr. John Pearson contra Martin and his Son Eodem die MR. Iohn Pearson by his Contract with Eupham Martin did conceive the Clause of his Tochar in thir Terms that it should be payable to him and her the longest liver of them two in Conjunct-fee and Liferent and to the Heirs of the Marriage in Fee which failzing to return to the Wifes Heirs By a second Contract betwixt the Husband and his Wife it was agreed that that Clause should be altered and that failzing the Heirs of the Marriage it should return to the mans Heirs who thereupon pursue Declarator of Right by vertue of the second Contract The Defender being absent The Lords advised the Cause wherein the difficulty appeared to be that the Tochar was provided to the Bairns in Fee So that the Husband and Wife could not alter the Succession being both Liferenters because that the Clause bears to them in Liferent and to the Bairns in Fee yet the Lords sustained the Declaratâr seing the Husband and Wife were named Conjunctfeers so that either of them behoved to be Fear and the adjection of and Liferent could only be understood of the Person that were Liferentar and albeit it was exprest to be the Bairns in Fee yet that could be but of a substitution seing there were no Bairns then existent Christian Barns contra Hellen Young and her Spouse Eodem die HEllen Young being provided to the Annualrent of 800 merks and to the Conquest obtained Decreet thereupon against Christian Barns the Executrix who Suspends on this Reason that the Pursuer was Infeft by the Defunct her Father in a Tenement in full satisfaction of these provisions It was answered nonrelevat unless it were alleadged that the Charger had accepted Whereupon it was alleadged Accepted in so far as she had uplifted the Mails and Duties after her Fathers death and had no other Title ascribe it to It was answered that she had another Title viz. her Goodsir had Disponed this Tenement to her Father and Mother the longest liver of them two and the Bairns of the Marriage be vertue whereof as Heir Appearand of the Marriage she might contiue and uplift and miskene the new infeftment given by her Father Which the Lords founds relvant unless the other Partie Insist on that alleadgeance proponed that the Pursuer had pursued and obtained payment upon the Title bearing in satisfaction John Ramsay contra James Wilson and others Eodem die COlonel Cunningham having impignorat a number of Jewels of great Value and immediately thereafter went out of the Countrey and never returned These Jewels were in the Custody of Iohn Ramsay who and Mr. Robert Byres had given Bond to make them furthcoming to the Colonel and now Iohn Ramsay having been Confirmed Executor to the Colonel pursues Iames Wilson and others for Exhibition and Delivery of the Jewels The Defenders alleadged absolvitor because the Jewels were Impignorat by Mr. Robert Byres for a considerable Sum of Money who having them in his Possession it was a sufficient ground for the Defenders to Contract with him because property of Moveables is presumed by Possession and therefore it is not relevant to lybel that once the Jewels were Colonel Cunninghams and therefore they must be restored to his Executors unless it were also lybeled quomodo desijt possidere so that the Jewels behoved to have past from him without his own Consent or Alienation otherwise it is alwayes presumed that he sold or gifted them and needs not be proven else no man could be secure of any Moveable if he who could instruct that he bought it could recover it from all possessors unlesse they could instruct all the wayes the same past from the first Owner The Pursuer replyed that the Case is not here as to Moveables that are ordinarily sold in Mercat but in relation to Jewels of great Value which cannot be presumed to have been Mr. Robert Byres because they were never worn by him as being his proper Good nor were they Competent to any of his quality and therefore the Defenders were in mala fide to acquire them from him without knowing his Right 2ly It is instructed by Mr. Robert Byres Letter produced that he acknowledged them to be Colonels before the Impignoration and it s
Mails and Duties by the Escheat It was answered for the Earl that having both Rights in his Person he might poynd the Ground for the Feu-dutie and his Donatar might pursue for the Maills and Duties 2dly His acceptance of the Feu-dutie albeit it could not consist with the Maills and Duties yet it would only extend to these Years that the Feu-dutie was accepted and to no others The Lords found the acceptance of the Feu dutie Relevant only for these Years for which it was received but it occurred to some of the Lords that if it were alleadged there were three consecutive Discharges of the Feu-dutie that these as they would presum all bygone Feu-dutie payed so they would extend to the Maills and Duties for all years preceeding the Discharges Therefore the Defender was ordained to condescend if so many Discharges were and that this point might be debated William Crawfoord contra Andrew Duncan June 7. 1666. WIlliam Crawfoord as Assigney to a Bond of 200. merks granted by Andrew Duncan pursues for payment It was alleadged absolvitor because the Bond was null having no Date at all data est de substantialibus It was answered that the Pursuer offered him to prove by the Defenders Oath that it was his true Subscription which was sufficient and the Date is only substantial when Improbation is alleadged or any Right that might take away the Writ if it were of such a Date as a prior Assignation or general Discharge The Lords found the Reply Relevant with this provision that the Defender might adject what quality he thought fit as these mentioned or that it was done in Minority or not delivered c. but they found him not oblidged to depone simpliciter upon the verity of the subscription and to prove such qualities as they had done before in a Holograph Writ wanting Date the last Session in the Process betwixt the Earl of Kinghorn and Sir James Murray Elizabeth Anderson contra George Cunninghame Iune 9. 1666. THis Cause betwixt Elizabeth Anderson and George Cunninghame anent a Legacie lest by the said George his Wife to the said Elizabeth Anderson being debated the 7. of February last The Lords then found that George by confirming his Wifes Testament in giving up his Debts to exhaust the free Gear and abate the Legacie did not hinder himself to adduce further Debt for a further abatement but now it being further alleadged that immediately before the Confirmation the Bond he would now add was registrat and he charged therewith he could not be ignorant thereof at the time of the Confirmation The Lords altered their Interlocutor and found that having scienter omitted that Debâ he could not bring it in to the Legatars prejudice This was stopt by Bill the next day Colin Hay contra Magistrates of Elgin Iune 12. 1666. COlin Hay pursues the Magistrats of Elgin for the Debt of a Rebel escaping out of the Prison of Elgin whom he had arrested there It was alleadged for the Defenders absolvitor because the Rebel was not incarcerat by the Pursuer upon his Caption but being incarcerat by another was only arrested in the Tolbooth by the Pursuer and all that is produced to instruct the same is only the Execution of a Messenger who arrested the Rebel It was answered there was no difference whether the Rebel had been incarcerat upon the Pursuers Caption or had been arrested for in both Cases the Magistrats are lyable and the keeper of the Tolbooth ought to have a Book for certifying the Magistrats of all incarcerations and Arrests in Prison and if they be neglective therein it is on their perills and yet here the Messenger not only Arrested but the Executions bore that he intimat the same to the Provost and Baillies Which the Lords found sufficient and Repelled the Defense and found no difference betwixt Incarceration and Arresting in Prison Sinclar of Bryme Supplicant Eodem die SInclar of Bryme gave in a Bill bearing that he had obtained Suspension of all Execution and specially of Appryzing which he presented at the time of the Appryzing and yet the Messenger and Writer went on and Appryzed and therefore craved that the Appryzing might be stopt at the Registers and Seals The Lords refused to grant the desire of the Bill without there had been a Summons against the Appryzer past the Signet but would not upon a Bill cite Parties out of the Town having no dependence on the House nor annull or hinder any pretended Right they had without citing of them but resolved to take in consideration the contempt of the Messenger and Writer at the discussing of the Cause Sir Hendrie Hoom contra Tennents of Kello and Sir Alexander Hoom. Iune 13. 1666. JOhn Hoom Younger of Kello being Forefaulted in the Parliament 1661. For being with the English Armie against the Kings Armie at Worchester 1651. Sir Alexander Hoom obtained Gift of the Forefaultry and thereupon came in possession Sir Hendrie Hoom having Appryzed the Lands of Kello from the said Iohn Hoom and his Father Alexander Hoom upon their Bond and having charged the Superiout in 1653. to Infeft him obtained Decreet of Maills and Duties against the Tennents which being Suspended upon double Poynding and Sir Hendrie and Sir Alexander competing It was answered for Sir Alexander the Donatar that he had possest three years and offered him to prove that the Rebel had possest five years before therefore craved the benefit of a possessorie judgement 2dly That he was preferable in poynt of Right in so far as he offered him to prove that the Rebel was five years in possession before the Forefaulture which gives the King and his Donatar compleat Right by the Act of Parliament It was answered for the Creditor that he ought to be preferred because there being no retour upon the Act of Parliament finding by the Inquest that the Rebel was five years in possession as Heretable Possessor he can neither have the benefit of a possessory Judgement nor stop the Creditors Diligence who found themselves upon the Appryzing against the Father who stood publickly Infeft and there is no sufficient Right in the Rebels Person alleadged nor produced It was answered that the five years possession might be proven by Witnesses by way of Exception 2dly It was offered to be proven by an Inquest conform to the Act of Parliament The Lords found no benefit of a Possessory Iudgement competent neither would they sustain the five years possession by way of Defense but decerned superceeding Extract while the 15. of July within which time if the Donatar obtained the retour of an Inquest he should be heard thereupon The Donatar further alleadged seperatim that the Rebel was Infeft by the Father which was sufficient to prefer him without an Inquest It was answered non relevat unless he had either been publickly Infeft or by base Infeftment cled with possession before the Superior was charged upon the Creditors Appryzing which being equivalent to a publick Infeftment
is preferable to the Rebels base Infeftment It was answered that the King or his Donatar needed no possession nor can be prejudged for want of Diligence The Lords found the Creditors alleadgeance relevant Iack contra Mowat Eodem die THE Lords found that Iack having obtained Decreet as Assigney by his Father it was relevant for the Debitor to alleadge and prove by the Assigneys Oath that the Assignation was without a cause onerous and by the Cedents Oath that the Debt was payed before Intimation Sir Henrie Hoom contra Sir Alexander Hoom. Iune 14. 1666. IN the Cause debated yesterday betwixt Sir Henrie Hoom and Sir Alexander Hoom. It was further alleadged for Sir Alexander Hoom that the Rebel had not only five years possession but was Infeft by an Infeftment holden of his Father which was cled with Possession before the Appryzers charge against the Superior in so far as the Infeftment bore a reservation of the Fathers Liferent and so the Fathers Possession was the Rebells Possession and was sufficient to validat the base Infeftment seing there could be no other Possession attained during his Fathers lifetime or at least there was reserved to the Father a yearly Rent and the Rebel gave his Father a Warrand in Writ to continue his Possession of such of the Lands for the same The Lords ordained the Donatar to condescend whether the Rebells Infeftment proceeded upon his Contract of Marriage And he declaring that it was by a distinct Right thereafter The Lords found the Possession of the Father not relevant it being betwixt Conjunct Persons privat and suspect For they thought if possession by such Reservation betwixt Father and Son were sufficient the Creditors would hardly be secure Dumbar contra Lord Duffus Eodem die THE Lord Duffus having obtained a Decreet of removing against Dumbar his Tennent and having execute the same by Letters of Possession The Tennents raises Suspension and Reduction of the Decreet and a Summons of Ejection the Reason of Reduction was that the Sheriff had done wrong in repelling and not expressing in the Decreet a relevant Defense 2dly That the Tennent could not be decerned to remove because he was already removed irregularly by Ejection and ought not to be put to defend in the removing till he were repossest spoliatus ante omnia est restituendus which he instructed by an Instrument taken in the hand of the Clerk of Court and where it was replyed before the Sheriff that he had not found Caution for the violent Profits He answered that he needed not seing the Pursuer himself was in possession by the Ejection It was answered that the Lord Duffus offered him to prove that all he did was to put in some Corns and Plenishing in an ouâ house long after the warning of the Tennent that had taken the Roum and that he continued to possesse all the rest of the house and the whole Land by his Cattel till he was Legally removed and neither the Family nor Goods of the new Tennent came in till then It was answered that the alleadgeance was contrair to the Tennents Lybel of Ejection bearing that he was dispossest both from the house and Lands The Lords considering that the Tennents was only positive in Ejection from the House and had once acknowledged that he was not Ejected from the Land they Assoâlzed from the Reduction of the Decreet of Removing but they sustained the Action of Ejection and Repelled the Defenses as contrair to the Lybell Reserving to themselves the modification of the violent profits and the other party to debate whether after the Decreet of Removing the Tennent should have re-possession or only the profits or damnages George Tailzor contra Iames Kniter Junâ 15. 1666. GEorge Tailzor having Appryzed some Lands in Perth set a Tack of a part of it to Iames Kniter who thereafter Appryzed the same Tailzor now pursues a Removing against Kniter who alleadged absolvitor because he had Appryzed the Tenement within year and day of the Pursuer and so had Conjunct Right with him It was answered that he could not invert his Masters Possession having taken Tack from him The Defender answered it was no inversion seing the Pursuer by Act of Parliament had Right to a part but not to the whole and the Defender did not take Assignation to any new Debt but to an old Debt due to his Father The Lords sustained the Defense he offering the expenses of the Composition and Appryzing to the first Appryzer conform to the Act of Parliament Alexander Stevinson contra Laird of Hermishills Eodem die ALexander Stevinson as Assigney by his Father pursues Hermishills for payment of a Bond who alleadged absolvitor because the Defender as Heir to his Father had right to a Bond due by the Pursuers Father before the Assignation after which the Assignation was a Deed infraudem Creditorum and so null It was answered non relevat unless the Cedent had been Bankrupt or at least insolvendâ The Lords Repelled the Defense in respect of the Answer The Defender furder alleadged Compensation upon the said Bond which was relevantâ against the Pursuer both as Heir to and as Assigney by his Father It was answered non relevat against the Pursuer as Executor but for his fourth part being one of four Executors 2dly The Defenders Father was Tutor to the Pursuer nondum reddidit rationes The Lords found that Compensation being equivalent to a discharge taking away the Debt ipso facto it might be proponed against any of the Executors in solidum but in regard the Tutors accompts were depending the Lords sisted his Process till he Tutors Compts proceeded Sir Robert Sinclar contra Laird of Houstoun Eodem die SIr Robert Sinclar pursues a Poynding of the Ground of the Lands of Leni upon an old Annualrent of 20. merks Constitute above a 100. years agoe Houstoun alleadged absolvitor First Because he brooked these Lands past Prescription peaceably without any pursuit upon this Annualrent 2dly Because this Annualrent was base and never yet cled with Possession and his Infeftment was publick It was answered to both that the Pursuer produced a Decreet of Poynding the Ground in Anno 1608. Since which the Pursuers Minority being deduced it is not 40. years Likeas there is produced a Precept of Poynding for the said Annualrent It was answered that the Decreet in Anno 1608. was only against the Tennents and Possessors and so is null the âeretor not being called It was answered First That albeit the Decreet had been defective for not calling the Master yet it was sufficient to interrupt Prescription 2dly It was sufficient to give possession and to validat a base Infeftment by a civil possession for as natural possession by the Tennents payment would have been sufficient though without their Masters knowledge or consent So a Decreet yea a citation against them is sufficient for a possession as being equivalent to a natural possession and albeit the Proprietar could not be
the Lords thought would operat but had not the occasion here to decide it Iohn Scot contra Sir Robert Montgomery Iuly 12. 1666. JOHN Scot pursues Sir Robert Montgomery as vitious Intrometter with the Goods and Gear of Sir Iames Scot of Rossie to pay a Debt due by Sir Iames to the Pursuer The Defender alleadged absolvitor because any Goods he Intrometted with were Disponed to him for Onerous Causes by the Defunct and delivered conform to an Instrument of Possession produced It was answered that the Disposition bears Horse Neat Insight Plenishing and all other Goods and Gear which cannot be extended to any thing of another kind nor of greater value as current Money Jewels Silver-plate Chains c. which never past by such general Clauses unless it be specially Disponed It was answered that albeit there had been such Moveables and the Defender had Intrometted therewith though another having a better Right might Evict the same yet the Defender had a probable Ground to Intromet which is sufficient to purge this Odious passive Title The Lords found the Disposition and Delivery Relevant to purge the Vitiosity Normand Livingstoun contra Lady Glenagies Iuly 13. 1666. NOrmand Livingstoun having appryzed the Lands of Glenagies pursues the Tennents for Mails and Duties wherein the Lady compeared aud alleadged that she ought to be preferred because she is Infeft in a Liferent in the Lands by her Contract of Marriage It was Replyed that the Lady and her Husband for all Right that either of them had had given a Right to their Cautioners to uplist the Mails and Duties of the Lands in question for payment of Debts and this Debt particularly whereon this Appryzer proceeds with power also to the Cautioners to Dispone any part of the Lands for payment of the Debts which the Lady Ratified Judicially and which now Excludes her from hindring any of these Creditors to get payment It was answered for the Lady first That this Right was but a Factory or Commission and so Expyred by the Lairds Death 2ly It was only in favours of the Cautioners for their Relief but the Creditors had no Interest to alleadge thereupon 3ly The Cautioners were never Distrest and it was a mistake being to them as Creditors in the Sum not being so in effect The Lords having considered the Commission and that it buir not only the Lady to consent but for all her Right to grant Commission and that not only it was in favours of the Cautioners in case of Distress but also in favours of the Creditors bearing to be for payment of the Creditors Therefore they found the same Relevant against the Lady to exclude her Infeftment ay and while the Debts were payed But this occurred to the Lords that if the Lady could condescend that by the Creditors or Cautioners fault in not making use of this Commission the Laird was suffered to continue in Possession so that if they had used Diligence the Debts would have been payed in whole or in part and the Ladies Liferent disburdened pro tanto they would find the same Relevant Patrick Keith contra Laird Lesmore Troup and others Iuly 14. 1666. PATRICK Keith having Right of Wodset granted by the Earl of Marischal pursues a Reduction against the Laird of Lesmore of a posterior Right granted by the Earl to him Which Right was Disponed to Muiresk who was Infeft and Dispon'd to Troup who is present Heretor who being all Called and Litiscontestation made and the Cause concluded at the Advising thereof it was alleadged for Troup that Muiresk was dead and there could be no advising of the Cause till some Representing him were Called for as in initio there could be no Process against Troup the present Heretor till Muiresk his Author were Called So neither can there be any procedor now till some Representing him be Called It was answered the Pursuer declares that he Insists against Lesmores Right principaliter against which only the Reasons are Sustained and as for Muiresk and Troups Rights they will fall in consequentiamâ The Lords found that the Process behoved to be Transferred against Muiresks appearand Heir before it could be advised For as the declaring that the Pursuer Insisted principaliter against the first Right would not have been Relevant ab initio seing the Law allows all mediat Authors to be Called that they may defend the Right whether and Reasons be Libelled against their Rights or their Authors which comes in the place of the old Custom of sisting Process until the Defenders Warrand were Called and Discust So every Author has alike Interest to Object against the Reasons although Libelled principaliter against the first Authors Right But the Lords declared that seing the Defender made this unnecessar delay they would be more favourable in drawing back the Reduction ad litem motam aut contestatam Sharp contra Glen Eodem die IN a Competition betwixt two Compryzers It was alleadged that the Pursuer who Insisted for the Mails and Duties his Appryzing was extinct by Intromission within the Legal Which was offered to be proven by his Pursuers Author his Oath It was answered that his Authors Oath could not be Received against a Singular Successor standing now Infeft for as the Cedents Oath is not Receivable against the Assigney in personal Rights much less is the Authors Oath against the singular Successor in real Rights It was answered that before this Pursuers Right res fuit litigiosa in so far as the Pursuers Author having before pursued Mails and Duties in that Process the Defender offered to prove by his Oath that the Appryzing was satisfyed whereupon litiscontestation was made whereby res fuit litigiosa and no posterior Right could prejudge the Defender Which the Lords found Relevant and ordained the Authors Oath to be taken Fountain and Brown contra Maxuell of Nethergate Eodem die BRown as Heir to Mr. Richard Brown who was Heir to Thomas Brown pursued for exhibition and delivery of a Wodset Right granted in favours of Thomas Wherein the Lords having sustained Witnesses to be admitted to prove not only the having of the Writs since the intenting of the Cause but the having them before and the fraudful putting them away which ordinarly is only probable by Writ or Oath unless evidences of Fraud be condescended on in respect the matter was ancient and the Pursuer had long lived in England now at the advising of the Cause severall of the Witnesses were found to Depone that the Defender before the intenting of the Cause not only had such a Wodset Right but was dealing to get the same conveyed in his own Person which importing Fraud The Lords would not absolutely decern him to exhibite but found that he behoved docere quomodo desijt possedere or otherwayes produce and therefore ordained him to compear that he might be interrogat and condescend upon the particular Writs Thomas Ogilvy contra Lord Gray Iuly 17. 1666. THomas Ogilvie pursues the Lord Gray as behaving himself
fit and is not conveenable for his Mis-authorizing or Omission that infers only that he is only Curator honorarius The Defender did furder alleadged that the Father had furder Authorized in so far as he Subscribed the said Bond and so consented that his Son should Subscribe and neither was the Deed in rem suâm but in rem creditoâis The Lords found the Reasons of Reduction Relevant and Repelled the Defenses and albeit many thought that the Father Subscribing with the Son was sufficient to Authorize yet that it was not sufficient being Caution for himself in rem suam but did not proceed to cause the Parties condescend how near Sir George was to Majority and what was his way of living Earl Cassils contra Tennents of Dalmortoun and John Whitefoord of Blarquhan Decem 11 1666 AN Action of Double Poynding at the Instance of the Tennents of Balmortoun against the Earl of Cassils on the one part and Iohn Whitefoord of Blarquhan on the other both claiming Right to their Multures It was alleadged for the Earl of Cassils that the Lands in question being holden Ward of him is now in his hands by reason of the Ward of Knockdaw his Vassal he had now Right to their Multures and they ought to come to the Miln of his Barony whereof these Lands were Pertinent and shew his Infeftment containing the Lands of Dalmortoun per expressum It was alleadged for Iohn Whitefoord that he ought to be preferred because that Kennedy of Blarquhan the Earls Vassal both of the Lands of Dalmortoun and Blarquhan had Disponed to him the Lands of Blarquhan and Miln of Sklintoch with astricted Multures used and wont at which time Blarquhan caused his Tennents of Dalmortoun to come to the said Miln of Sklintoch whereby the Thirlage was not only Constitute of the Lands of Blarquhan but of Dalmortoun It was answered for the Earl First That the Thirlage of Dalmortoun could not be Constitute by the said Clause because the Lands of Dalmortoun being no part of that Barony whereof the Miln of Sklintoch is the Miln But a distinct Tenement holden of a distinct Superiour Such a general Clause could never have Constitute a Thirlage unless the Lands had been exprest 2ly Albeit the Servitude had been Constitute never so clearly by the Vassal Yet if it was without the Superiours consent it could not prejudge him by Ward or Non-entry It was answered for Iohn Whitefoord to the First That the Clause was sufficient to Constitute the Thirlage and if it wrought not that Effect it was of no Effect because the hail Lands of the Barony were Disponed with the Miln and neither needed nor could be Thirled And therefore the Clause of Thirlage behoved to be meaned of some other Lands 2ly Vassals may lawfully Constitute Servitudes without consent of the Superiour which are not Evacuat by Ward or Non-entry 3ly It is offered to be proven that the Earl consented to the Right of the ââlture in so far as the Lands of Dalmortoun being Appryzed from Blarquhan by Iohn Gilmour he assigned the Appryzing to Iohn Whitefoord who Assigned or Disponed the same to Kilkerren in which Asignation there was an express Reservation of the Multurs of Dalmortoun to the Miln of Sklintoch upon which Infeftment the Earl received Kilkerren in these Lands who is Author to the present Vassal The Lords found the Clause aforesaid in Iohn Whitefords Charter not to infer a Servitude of the Lands of Dalmortoun not being therein exprest and holden of another Superiour Nor no Decreets nor Enrolments of Court alleadged to astruct the Servitude And found also the second Reason Relevant viz. That the Earl as Superiour not having consented was not prejudged by any Deed of the Vassals But as to the third Point the Lords found that the Reservation in Kilkerrens Right unless it were per expressum contained in the Charter Subscribed by the Earl of Cassils could not infer his consent albeit the Charter related to a Disposition containing that Clause but if it were alleadged to be exprest in the Charter they Ordained before answer the Charter to be produced that they might consider the terms of the Reservation Sir Henry Home contra Creditors of Kello and Sir Alexander Home Decemb 12 1666 SIR Henry Home having appryzed the Lands of Kello before the year 1652. pursues the Tennents for Mails and Duties Compearance is made for either Creditors appryzers who alleadged they ought to come in with him pari passu by the late Act between Creditor and Debitor because the appryzings being since the year 1652. was within a year of his appryzings being effectual by Infeftment or Charge It was answered that the Act of Parliament was only in relation to Compryzings both being since the year 1652. and the Pursuers appryzing being led before falls not within the same It was answered that the Act of Parliament in that Clause thereof in the beginning mentions expresly that Compryzings led since 1652. shall come in pari passu with other appryzings but doth not express whether these other appryzings are since 1652 but in that is general and the Reason of the Law is also general and extensive to this Case It was answered that the posterior part of that same Clause clears that point both in relation to the appryzings in whose favours and against which the Law is introduced viz. that the Clause is only meant the appryzings led since 1652 shall come in pari passu which must both comprehend these that come in and these with whom they come in The Lords Repelled the alleadgence quoad other Compryzings and found that their Compryzings could not come in with the Pursuer he having appryzed before the year 1652. and Charged before their appryzing Ianet Thomson contra Stevinson Decem 13 1666 JAnet Thomson pursues a Reduction of a Disposition made by her to Stevinson upon Minority and Lesion and also upon this Reason that the Disposition was done within some few dayes after her Pupillarity and it being of Land ought not to have been done without authority of a Judge especially seing she had no Curators The Defender answered to the first there was no Lesion because the Disposition bears a sum equivalent to the value of the Land To the second non Relevat The pursuer answered that the Subscribing and acknowledging the receipt of Money by a Minor cannot prove it self but the Minor is Les'd in Subscribing the same The Defender Duplyed that he offered to prove by Witnesses that the price was truely payed and profitably Employed The Lords found not the second Reason of Reduction Relevant the authority of a Judge being only required to the alienation of Lands made by Tutors of their Pupils Lands Anna Fairly contra Creditors of Sir William Dick. December 14 1666 ANna Fairly alleadging that she obtained an Assignation from umquhil Mr. Alexander Dick as Factor for his Father in satisfaction of a Sum due to her by his Father pursues for delivery of the assignation
far as his Fathers Liferent was reserved thereby and his Father Possessing by vertue of the Reservation did validat his Infeftment 2ly Albert the Fathers own Possession could not be sufficient yet the Father having Transmitted his Right to Watson and Watson Possessing the Suspicion of ââmulation ceased and there is a Disposition produced by the Father to Watson which though it bear to be of the Fee yet can import no more but to be of the Liferent seing the Father had no more neither needs it have an Infeftment seing it hath but the effect of an Assignation to a Liferent It was answered that if the Father had expresly assigned his Liferent reserved in the base Infeftment it might have been the ground of a question whether the Assigneys Possessing so would have validat the base Infeftment But since the Father has not taken notice of the Reservation but Dispones as Heretor it clears that he did not Possess by the Reservation but by his own prior Right The Lords found the Reason of Reduction and Reply Relevant and that the Fathers Possessing by himself or Watsons Possessing by himself could not validat the base Infeftment Charles Cass contra Mr. Iohn Wat. Eodem die DOctor Cass having taken Infeftment of an annualrent out of the Lands of Robertland in name of Cockpen and Adam Wat Charles Cass as Heir to the Doctor pursues Mr. Iohn Wat as Heir to his Father for Compt and Reckoning of the Mails and Duties and Charges him with the hail Rental being intrometted or ought to have been intrometted with by him and his Father by vertue of the Trust in their Person and also Adam Wat took a gift of Tutory to the Pursuer and so is lyable as his Tutor The Defender answered that his Fathers Name being borrowed on Trust could lay no Obligation on him to do any Diligence but what he thought fit seing by his Back-bond he was obliged to denude himself whenever the Doctor pleased and the Pursuer has reason to thank him for what he did and not burden him with what he omitted seing he had no allowance therefore and as for the Tutory there was a multiple Poinding all the time thereof depending among five or six Parties pretending Right by the dependence whereby the Tutor was excluded The Pursuer answered that the Defenders Name was not borrowed without his knowledge but that he accepted thereof and entred to Possession and as an Appryzer is not obliged to Possess but if he Possess must be answerable for the Rents of the Lands conform to the Rental so must the Defender The Lords found the Defender not lyable to Diligence by vertue of the Trust albeit he did Possess but Ordained him to Compt for his intromission and to condescend what Diligence his Father did as Tutor that if he be found deficient therein there might be an additional Accompt to what he intrometted with Mr. Iames Cheap contra Mr. Iohn Philip. Decem. 19. 1666. MR. Iames Cheap charges Mr. Iohn Philip to fulfil a Minute of Alienanation of the Lands of Ormestoun sold by Mr. Iames to Mr. Iohn whereby Mr. Iohn was obliged to pay 25500 merks as the price or to assign sufficient Bonds therefore He Suspends and offers to Consign Bonds and amongst the rest a Bond of 8000 merks due by the Town of Edinburgh The Charger alleadged that he was not obliged to accept that Bond because at the time of the agreement and Subscription of the Minut the Charger particularly excepted the Town of Edinburghs Debt and the Suspender declared that it should be no part of the price which he offered to prove by the Writer and Witnesses insert in the Minute The Suspender answered that Witnesses were not competent in this Case where the words of the Minute are not dubious but clear and general of any sufficient Debt for if this were sustained the alteration of the price as well as the manner of payment might be proven by Witnesses It was answered that it was no way alike nothing being here in question but the manner of payment and not the quantity of the price The Lords Ordained the Writer and Witnesses to be Examined before answer Ianet Thomson contra Stevinson Eodem die IN the Reduction on Minority at the Instance of Ianet Thomson contra Stevinson The Lords Ordained the Pursuers Mother to be received Witness of her Age cum nota there being a Testificat already produced and there being 30 or 40 years since the Pursuers Birth after which time it was not likely that others would remember but she was ordained to Deponâ who were Witnesses at the Birth and Baptism and these to be Examined Corstorphin contra Martines Decem. 21. 1666. JAmes Corstorphin pursues a Reduction of a Disposition made by his Fathers Sister in lecto It was alleadged by Martines to whom the Disposition was made that he could not quarrel the same because his Father to whom he is Heir and the other Brethren and Sisters of the Defunct had approven whatsoever Testament Legacy or Disposition made or to be made by the Defunct of her Goods and Gear Debts and sums of Money and others whatsoever that she had or should have the time of her Decease so that she having made this Disposition he cannot quarrel the same The Pursuer answered First That the Ratification in the Terms foresaid could not be extended to Lands or Annualrents Constitute by Infeftment there being no mention of Lands Annualrents or Heretage therein 2ly It could not be extended to any Disposition but Legally made and therefore not to Dispositions on Death-bed The Defender answered that the Ratification bearing expresly sums of Money did comprehend all sums although Infeftment of Annualrent were granted for security thereof which being but accessory to the sum follows the same 2ly There could be no other effect of the Ratification if it were not to exclude the Heir from quarreling thereof as being in lecto for if the same was made by the Defunct in her leige poustie it were valide and unquarrelable in it self and albeit it bear not mention of Death-bed yet it expresses Disposition of all Goods she should happen to have the time of her Death so that if she had acquired Rights after her sickness contracted she might Dispone the same validly by this Ratification and yet behoved to be on Death-bed The Lords found this Ratificatiou not to extend to sums whereupon Infeftment of Annualrent followed which was carried but by one Vote and so they came not to the second Point William Yeoman contra Mr. Patrick Oliphant Eodem die WIlliam Yeoman having apprized the Lands of Iames Oliphant Son to Sir Iames Oliphant and Mr. Patrick Oliphant having also appryzed the same William insists on this reason that Mr. Patricks appryzing was satisfied by Intromission within the legal Mr. Patrick alleadged that his whole Intromission could not be countable to satisfie his Appryzing because the two part thereof did only belong to his Debitor and the third
Dispute whether his Fathers Authors were Infeft or whether his Father had disponed or not until his Majority that he might seek out his Evidences and defend himself Reid contra Ianu. 19. 1667. IN a Process betwixt Reid and whereof the Title was a Service of the Pursuer as Heir deduced before the Bailzie of Regality of Spenzie It was alleadged by the Defender that this Title was not sufficient seing the Service was not retoured It was answered that the Service being within the Regality and of a Person dwelling there neither needed nor used to be Retoured in respect the Service it self was in Record in the Bailzies Books It was answered that albeit a special Service of Lands within the Regality needed not be Retoured in the Kings Chancellary because there was no Precept thence to issue but the Service within the Regality was sufficient that thereupon the Precepts of the Lord of the Regality might proceed against the Superiour within the Regality who was Infeft but in a general Service which may be before any Judge whether the Heir Reside in his Jurisdiction or not there is no difference betwixt a Regality and any other Court but all must be Retoured in the Chancellary It was answered that the Regality having their own Chapel and Chancellary were not oblieged to Retour it in the Kings Chancellary Which the Lords found Relevant and sustained the Service Isobel Findlason contra Lord Cowper Ianu. 22. 1667. ELphingstoun of Selmes having given a Precept to Isobel Findlason and direct to the Lord Cowper that he should pay to the said Isobel a Sum owing by Selmes to her and receive Selmes Bond from her upon the foot of which Precept the Lord Cowper directs another Precept to Iames Gilmore to pay the said sum the VVoman not being payed pursues both the Lord Cowper and Iames Gilmore for payment It was alleadged for Iames Gilmore absolvitor because he had not accepted the Precept neither was there any ground alleadged for which he was oblieged to accept or pay the Lord Cowpers Precept Which the Lords found Relevant It was alleadged for the Lord Cowper that the giving of the Precept should not obliege him seing it mentioned not value received or any other Cause and therefore resolved into a meer desire It was answered that the giving of the Precept was an acceptance of Selmes Precept and behoved at least to import a Donation to be made effectual by the Drawer of the Precept or otherwise an Intercession or Expromission for Selmes The Lords sustained the Process and found the Lord Cowper lyable by the Precept to pay in case of none acceptance especially seing it was consequent to Selmes Precept direct to Cowper Mr. Iohn Mair contra Steuart of Shambelly Eodem die MR. Iohn Mair Minister of Traquair having obtained Decreet against Shambellie and the Parochioners to pay him 545. merks Expended for Reparation of the Manse and to meet and Stent themselves for that Effect upon which Decreet he took Shambellie with Caption whereupon he gave him a Bond of fourscore pounds for his part Shambellie now Suspends the Bond on this Reason that albeit it bear borrowed Money he offers to prove by the Chargers Oath that it was granted for his part of that Stent and that his proportion thereof casting the Sum according to the Valuation of the Paroch would not exceed fourty merks and that he granted this Bond for fear of Imprisonment It was answered the Reason was not Relevant to take away the Suspenders Bond being major sciens prudens and there was here no justus metus because the Caption was a lawful Diligence so that the giving of the Bond was a Transaction of the Parties which is a strong Obligation It was answered that the Suspender when he was taken at his House was sick and unable to travel yet the Messenger would carry him away and being at the Tolbooth gave the Bond rather than in that Case to go to Prison which was an irregular force and a just cause of fear but this addition was not proponed peremptory The Lords Repelled the Reason of suspension unless the said addition were also instructed instanter otherways it could only be reserved by Reduction ex metus causa Sir Henry Hoom. contra Tennents of Kello and Sir Alexander Hoom. Janu. 24. 1667. SIR Henry Hoom having Appryzed the Lands of Kello from Henry and Iohn Hooms and being Infeft pursues the Tennents for Mails and Duties Compearance is made for Sir Alexander Hoom Donatar to the Forefaultor of the said Iohn Hoom of Kello who alleadged that the Forefault Person the time of the Doom of Forefaultor was in Possession of the Lands in question in whose place the Donatar now succeeds and by the Act of Parliament 1584. It is Statuted that where the forefault Person was in Possession the time of the Forefaulture albeit not by the space of five years which would Constitute a Right to him that the Donatar must be put in Possession and continue five years in Possession that in the mean time he may search and seek after the Rebels Rights It was answered First That this part of the Statute is only in case the Rebel had Tacks or Temporary Rights which neither is nor can be alleadged in this Case Secondly The five years Possession must be reckoned from the Doom of Forefaulture after which the Kings Officers or Donatar might have attained Possession and if they did not their neglect cannot prejudge others Ita est there are five years since the Forefaulture and the Rents are Extant being sequestred It was answered that the Act Expresses not only in Case of Tacks but also in Possession and that the five years must be after the Possession began and not the Forefaulture The Lords found the alleadgance Relevant that the Rebel was in Possession and preferred the Donatar to the five years Rent after the date of the Forefaulture It was further alleadged that the Pursuers Right being but an Appryzing the Donatar would instantly satisfie the same at the Bar. It was answered non Relevat to retain by way of Exception but the Donatar behoved to use an Order and pursue a Declarator It was answered that in Appryzings an Order upon 24 hours Requisition was sufficient there being no further Solemnity required then that the Appryzer might come to receive his Money The Lords found that the Appryzing might be summarly satisfied hoc ordine Earl of Argile contra George Campbel Eodem die THE Earl of Argile pursues George Campbel to remove from certrin Lands who alleadged absolvitor because the Warning was null not being used at the right Paroch Kirk where Divine Service at that time was accustomed It was answered non Relevat unless it were alleadged that the other Kirk were Erected by Parliament or Commission thereof and that thereby the Old Paroch was supprest and divided 2ly Though that were alleadged it ought to be Repelled because it is offered to be proven that all VVarnings and Inhibitions
Sub-tennent to the principal Tennent The Lords Debate the same amongst themselves some being of opinion that the Sub-tennents payment bona fide before the Term was sufficient because he was only obliged to the principal Tennent and he might have a Tack for a less Duty then he or for an elusory Duty which if he payed and were Discharged he was not conveenable and oft times the Sub-tennents Term was before the principal Tennents Yet the Lords found that payment made bona fide by the Sub-tennent to the principal Tennent was not Relevant and that because the Master of the Ground has Action not only against the Tennent but also against the Sub-tennent or any who enjoyed the Fruits of his Ground and may conveen them personally for his Rent as well as really he has an Hypothick in the Fruits neither can the Sub-tennent prejudge the Master of the Ground of that Obligation and Action by paying before the Term otherways he might pay the whole Terms of the Tack at the very entry thereof and so Evacuat the Heretors Interest as to the Sub-tennent yeaâ though the Sub-tennents Tack-duty were less then the principal Tennents it would not Exclude the Heretor pursuing him as Possessor for the whole but only give him Regress for Warrandice against the principal Tacks-man but the Term being come if the Heretor Arrested nor pursued not the Sub-tacksman he might impute it to himself and the Sub-tacks-man might justly presume that the principal Tacks-man had payed and so might pay him bona fide Countess of Hume contra Tennents of Alcambus and Mr. Rodger Hoge Eodem die THe Countess of Hume being provided by her Contract of Marriage to the Lands of Alcambus Pyperlaw and Windilaw extended to 24 husband-Husband-Lands she gets a Charter upon her Contract bearing For Implement thereof to Dispone to her the Lands and Barony of Alcambus c. with a Seasine taken at Alcambus She thereupon pursues the Tennents Compearance is made for Mr. Roger Hog and other Creditors who bought these Lands from Wauchtoun who had bought them from the Earl of Hume and alleadged Absolvitor from the Mails and Duties of the Miln of Alcambus because my Lady by her Contract of Marriage was not provided to the Miln neither was she Infeft therein per expressum and Milns do not pass as Pertinents without a special Infeftment 2ly Absolvitor for the Rents of Pyperlaw and Windilaw because my Ladies Seasineâ bears Only Inâeftment in the Lands of Alcambus and mentions not these Lands which are particularly in the Contract The Pursuer answered to the first That by her Charter she was Infeft in the Lands of Alcambus with the Milns with other Lands mentioned therein c. 2ly That Alcambus bore by her Charter to be a Barony which is nomen universitatis and carries Milns albeit not exprest To the second It is offered to be proven that Alcambus is the common known Designation and is commonly known to comprehend Pyperlaw and Windilaw as Parts and Pertinents thereof and that they are all holden of one Superiour and lyes contigue so that they are naturally unite and without any further union in a Barony or Tenement and a Seasine upon any place of them serves for all It was answered for the Defender to the first Point That Alcambus was not a Barony neither doth the Designation thereof by the Earl of Hume make it a Barony unless it were instructed 2ly The adding of Milns in the Charter if the Lady had not Right thereto by the Contract is a Donation by a Husband and is Revocked by his Disposition of the Lands of Alcambus and Miln thereof to the Laird of Wauchtoun the Defenders Author The Pursuer answered that the Charter was but an Explication of the meaning of the Parties that by the Contract the intention was to Dispone the Miln especially seing the Miln hath no Sucken but these Husband-Lands of Alcambus which are Disponed without any Restâiction of the Multure so that the Miln would be of little consequence without the Thirâe The Lords having compared the Contract and Charter found that by the Contract the Lady could not have Right to the Miln ãâã she would be free of the Multures and found that the Charter did not only bear for Implement of the Contract but also for love and favour and so found the Adjection of the Miln to be a donation Revocked Nor had they respect to the Designation of the Lands as a Barony but they found it Relevanâ if the Lady should ârove that it was a Barony to carry the Right of the Miân or that in my Lords Infeftments there was no express menââân of the Miln but that my Lady had them in the same Terms my Lord had them They found also that Reply Relevant that Alcambus was the Name of the whole Lands to extend the Sea sine to the Lands of Pypârlaw and Windilaw though not named and that they might be yet Parts and Pertinents of the Tenement under one Common Name Andrew Smeatoun contra Tabbert Feb. 7. 1667. ANdrew Smeatoun being Infeft in an Annulrent out of a Tenement in the Canongate pursues a Poinding of the Ground and produces his own Infeftment and his Authors but not the original Infeftment of the Annualrent It was alleadged no Process until the original Infeftment were produced constituting the Annualrent especially seing the Pursuit is for all bygones since the date of the Authors Infeftment so that neither the Pursuer nor his immediat Author hath been in Possession 2ly If need beis it was offered to be proven that before the Rights produced the Authors were denuded It was answered that the Pursuer hath produced sufficiently and that his Right was cled with Possession in the Person of his mediat Author before the years in question To the second this Pursuer hath the benefit of a possessory judgement by his Infeftment cled with Possession and is not obliged to Dispute whether his Author were denuded or not unless it were in a Reduction The Lords sustained the Pursuers Title unless the Defender produced a Right anterior thereto in whiâh case they ordained the Parties to be heard thereupon and so inclined not to exclude the Pursuer upon the alleadgeance of a possâssory judgement but that Point came not fully to be debated It is certain that a possessory judgement is not relevant in favours of a Proprietar against an Annualrenter to put him to Reduce because an Annualrent is debitum fundi but whether an Annualrenter possessing seven years could exââude a Proprietar until he Reduce had not been decided but in this case the Lords inclined to the Negative Mr. Alexander Foulis and Lord Collingtoun contra Tennents of Innertyle and La. Collingtoun Feb. 9. 1667. SIr Iames Foulis of Collingtoun being in treaty of Marriage with Dam Margaret Erskin Lady Tarbet She did dispone 36 Chalders of Victual of her Joynture in the North to a confident Person that she might make use thereof for the benefit of
certain-Lands upon the Renunciation of Barbara Nisbet insists upon that Member of the Summons against the Superiour Iohn Ker that he should receive and Infeft her who alleadged no Process unless the Pursuer show the Right of the former Vassal whose Heir had Renunced for the Pursuer can be in no better case then the appearand Heir who if she were craving to be Entred behoved to Instruct her Predecessors Right The Pursuer answered that her adjudication against the Defender as Superiour is in common form which hath been ever sustained upon good ground because a Creditor has no Interest to have his Debitors Rights when he is seeking adjudication which must be his Title to demand the Rights but the Superiour is obliged by Law to reserve the Adjudger without Instructing any Right further then the adjudication which hath been frequently so found in the case of Appryzers The Lords having considered the case and paralel with that of Appryzers found this difference that Superiours got a years Rent for receiving Appryzers but not of Adjudgers yet in respect of the common custom of these Summons they âepelled the defence and Decerned the Superiour to receive the Pursuer salvo jure âujuslibet suo Dam Geibs Moncreiff contra Tennents of Neutoun and William Yeoman Eodem die DAm Geils Moncrief being Served to a Terce of the Lands of Newtoun pursues the Tennents for a third part of the Duties who having Deponed that they payed so much for Stock and Teind joyntly for Yeards Parks and the whole Lands possest by them Compeared William Yeoman as now having Right to the Fee who alleadged no Terce of the Teinds because they fell not under Terce 2ly No Terce of the yeards because as the Mannor-place belonged to the Fiar without division so behoved the closs Gairdens Orchards yards c. The Lords found the Pursuer to have no Right to the Teind by her Terce unless there had been an Infeftment of the Teinds by Erection and therefore laid by the fourth part for the Teind and found that the years in question being possest by the Tennents and there being nothing alleadged nor instructed that there was a Tower Fortalice or Mannor-place having a Garden or Orchard for pleasure rather then profite they found no necessity to decide what Interest a Tercer would have in such but these being set by appearance as Grass Yeards they Repelled the alleadgeance Earl Tullibardine contra Murray of Ocâtertyre Feb. 12. 1667. IN the Declarator at the Instance of Tullibardine against Murray of Ochtertyre Dispute the first of âebruary last It was now further alleadged for Ochertyre that Clauses Irritant in Wodsets not being illegal or null by our Law albeit the Lords do sometimes Restrict the Effect thereof ad bonum aequum to the just Interest of the Parties against whom the same is conceived they do never proceed any furâher But here Ochertyre is content to make up to the Earl his just Interest by paying a greater price for the Land then Sir Iohn Drummond and whereas it was alleadged that this was not receivable now after the Earl had made bargain with Sir Iohn Drummond Ochetyre now offered to prove that before any Bargain was agreed in Word or Writ he did make offer to the Earl of fourscore ten thousand merks which he offered to prove by Witnesses above all exception who communed betwixt them viz. the Lord âtormount and the Laird of Kylar It was answered that the Pursuers adhered to the Lords former Interlocutor whereby they have restored the Earl against the Clause irritant he satisfying Ochtertyre his whole Interest cum omni causae the same Point being then alleadged and Dispute aâd both Parties being judicially called and having declared their minds concerning any such offer whereby the Earl upon his hoâour declared that before the agreement with Sir Iohn Drummond Ochtertyre offered not so much by 4000 merks 2ly Any such alleadgence albeit it were competent it were only probable sâripto vel juramento the Earl now having Disponed to Sir Iohn Drummond so that the Effect would be to draw him into double Dispositions which is of great consequence both as to his Honour and Interest especially seing that Ochtertyre did not take an Instrument upon the Offer It was answered for Ochtertyre that the former Interlocutor cannot exclude him especially seing he did only then alleadge that he made a general offer of as much for the Land as Sir Iohn Drummond would give therefore but now he offers to prove that he offered 90000 merks which is 2000 merks more then Sir John's price The Lords found that they would only restrict the Clause irritant to the Effect that the granter of the Wodset might suffer no detriment which they found to be Effectual if the Wodsetter offered as great or a greater sum then the other buyer before any Bargain agreed between them either in Word or Writ âut found it not probable by Witnesses but by Writ or the Earls Oath and found that a general offer was not sufficient unless it had Exprest a particuâar sum Lord Iustice Clerk contra Rentoun of Lambertoun Feb. 13. 1667. THe Lord Rentoun Justice Clerk putsues Rentoun of Lambertoun as heir to his Father for Compt and Payment of his Rents Woods and Planting intrometted with by Lambertoun in the beginning of the troubles It was alleadged for the Defender absolvitor because by the Act of Indemnity the Leidges are secured as to all things done by any pretended Authority for the time Ita est The pursuer being sequestred the Defenders Father medled by Warrand from the Committee of Estates and made Compt to them as appears by his Compt producedâ which is ballanced by the Committee 2ly The said accompt bears That Lambertoun made Faith that it was a true accompt nothing omitted in prejudice of the publick after which he could not be questioned either for any thing in the accompt or for any thing omitted and not charged The Pursuer answered that the Act of Indemnity contains an express exception of all Persons that medled with any publick Moneys and had not made Compt therefore that they should yet be comptable 2ly The accompt produced contains two accompts one in anno 1641 another in anno 1643. The first is not approven by the Committee but adjusted by three persons who were no members of the Committee and whose Warrand is not Instructed and the second compt is only approven wherein the Charge is a Rest in the Tennents hands of the former accompt and the Oath is only adjected to the second accompt which cannot Import that Lambertoun ommitted nothing in the first accompt but only that he ommitted nothing in the second and his Oath is only to the best of his knowledge and can import no more than the Oath of an Executor upon the Inventar which excludes not the Probation of super Intromission It was answered for the Defender that the second accompt being the rest of the first accompt the
seven and eight at night and albeit it had been later that the Defender might be excusable not to come out of his own House to search yet here he was in the same house with the Rebel and in the next Room to him and heard the noise of these that deforced the Messenger which was done by the Towns Officers neither can any pretence of Ordering of Quarters stop the Execution of the Kings Letters which might have been done with so little diversion and the Quarters might have been Ordered by the Baillies The Lords found the Libel Relevant but found the Defenses joyntly also Relevant viz. The Ordering of the Quarters of the Army the Ordering of the Officers and the offer now to put the Rebel in Prison in as good case and the time of night Harner contra Haitly Eodem die HArner pursues Haitly as representing her Husband for proving the Tenor of her Contract of Marriage who alleadged no Process because there was no Adminicle produced in write which was most necessar in any Case but especially in this Case where the Tenor of the Contract was extraordinar Constituting the one half of the Fee of the Husbands Estate to the Wifes Heirs failzing the Heirs of the Marriage The Pursuer answered that albeit Adminicles in Writ were ordinarly required especially in Writs that use to be taken away by Redelivery or Cancelling as Bonds c. Yet the intent of Adminicles is to render it probable that such a Writ was and thereby to give ground to admit Witnesses to prove rei gestae veritatem But here there was as strong grounds of probability there being a Marriage of a Landed Man and the Copy of the Contract taken of the Writer thereof Iohn Nicol his Style Book he and his Servants being Witnesses who are yet alive and the Tenor offered to be proven by them whereas other Tenors use to be proven by Witnesses that saw the Writ though they were not the Witnesses insert Likeas the Husband having taken the Right of an Infeftment for a sum payable to him and his Wife and the Heirs betwixt them which failzing to his Heirs he took a Ratification thereof from the Pursuer which could have no intent if in case of failzie of Heirs of the Marriage the half had not been appointed to return to her Heirs Likeas it is offered to be proven by Witnesses that the Husband acknowledged that he had the Contract in custody from his Wife The Defender answered that our Law had rejected Probation by Witnesses in matters of Importance and therefore Tenors are only Sustained when their Probation is partly by Writ and partly by Witnesses neither is any other probability sufficient and it is offered to be proven that the Husband Infeft his Wife in his Houses of a considerable value without any mention of a Contract of Marriage The Lords refused to sustain the Libel without Adminicles in Writ and assoilzâed albeit it was also offered to be proven that the Husbands whole means came by the Wife Patrick Wat contra William Halyburton Iune 14. 1667. PAtrick Wat as Assigney by Adam Wat his Father to a Disposition granted by umquhil Halyburton to him pursues William Halyburton as Representing him to fulfil that part of the Disposition obliging him to procure the Pursuers Father Infeft and for that effect that the Defender should Infeft himself and grant Procuratory of Resignation for Infefting the pursuer It was alleadged for the Defender that he was not obliged to Infeft the Pursuer because it was his Fathers fault he was not Infeft seing he had received Procuratory of Resignation and Precept of Seasine with which he might have Infeft himself and though the Granter and he the Receiver lived for twelve or fifteen years thereafter he was negligent 2ly Though the Defender were obliged to Enter and Denude himself yet it must be the Pursuer finding Caution to warrand and relieve him of the hazard of the Ward and Marriage because the Lands in question being Ward through the Pursuers Authors fault the Defenders Marriage will fall 3ly The Defenders Fathers Name was only borrowed by Hallyburton of Egles-cairn who acquired the Rights blank and filled up the Defenders Fathers Name therein and moved him to Dispone The Lords Repelled these Defenses but Reserved to the Defender to pursue Damnage and interest for any hazard occurred by Adam Wats fault as being more proper against his Heir than against the Pursuer his second Son Mr. Heugh Gray contra Forbes Minister of Innerkeithing and Tennents of Nether-Horseburgh Iune 15. 1667. THe Tennents of Nether-horseburgh having Suspended these two Ministers upon double Poynding they alleadged they had made payment bona fide of their Rents conform to their Tacks It was answered that they were called to Mr. Heugh Grays Decreet in anno 1656. and Charged thereupon thereafter the same year which did put them in mala fide It was answered that there having nothing followed upon the Charge but the Charger being silent for fifteen years the Tennents favore rusticitatis cannot be thought to continue in mala fide all that time to infer double payment else it might continue for fourty years It was answered once in mala fide ay in mala fide and that thir Tennents did still remember and suspect the Pursuers Right appears because they took Discharges bearing warrandice of the same The Lords ordained the Defenders to produce their Discharges that the warrandice might appear being loth to decern the Tennents in double payment if the Charge could have access to the other Minister or his Representatives It was alleadged for the present Incumbent of Innerkeithing that in a former double Poynding raised by the Tennents he was preferred to the Cropt 1665. and in time coming It was answered that the said Decreet was in absence of Mr. Heugh Gray and that it was null without Probation for there was nothing produced for the Minister of Innerkeithing but his Presentation and Collation which were but meerly general and nothing produced to Instruct that their Teinds were of his Paroch or within his Benefice It was answered that he was secured by the Act of Parliament anent Decreets of double Poynding The Lords found that what the Minister of Innerkeithing had uplifted by vertue of that preference the Act of Parliament would secure him thereanent but found he had no Right as to the future Iohnstoun contra Cuninghame Iune 19. 1667. JAmes Iohnstoun as Assigney by William Iohnstoun to a Bond granted by Iames Cuninghame Charges him thereon he Suspends upon this Reason that the Bond bears the sum borrowed from William Iohnstoun and his Spouse and payable to them the longest liver of them two and their Heirs there being no Children betwixt them the one half must belong to the Heirs of the Wife to whom the Suspender is Curator and which he ought to retain for their use and albeit in such Clauses in Rights of Land or Heretage potior est conditio masculi yet it is not
priviledged The Lords Repelled the Defense and found the Donatar lyable for the Rent in so far as ilk years intromission would extend to the Rent of that year George Schine contra Iames Christie Eodem die GEorge Schine having Adjudged an Annualrent and having Charged Iames Christie his Superiour to receive him He Suspends and alleadges he had Appryzed the same Lands before and that his Author was only Infeft base never cled with Possession The Lords Repelled the Defense hoc loco and ordained him to Infeft Reserving his own Right as accords Schaw contra Tennents Eodem die SChaw pursues certain Tennents for their Duties who produced several Discharges against which it was alleadged that the Discharges were null wanting Witnesses and were not Written with the Dischargers own hand and so were null by the Act of Parliament It was answered that Custome had introduced several exceptions from that Act as Bills of Exchange of the greatest importance which are valid being Subscribed without Witnesses albeit not holograph And in like manner the Discharges granted to Tennents which by long Custom through all the Kingdom use only to be subscribed by the Landlords without Witnesses and writen with another hand The Lords sustained the Discharges and would not put the Tennents to prove that they were truely subscribed unless they were offered to be improven in which case though the indirect manner was wanting they might be improven by comparison of Subscriptions and other Adminicles wherein less would serve then in other Improbations Sir Henry Hume and other the Creditors of Kello contra Sir Alexander Hume Iuly 6. 1667. SIr Henry Hume and others being both Creditors to Alexander Hume of Kello And Iohn Hume his Son Appryzed the Lands of Kello in anno 1649. And in anno 1653. Charged the Superior in anno 1661. Iohn Hume is Forefault upon the Treasonable Crimes committed in anno 1651. Sir Alexander Hume is Donatar to the Foresaulture the case of Alexander Humes Right before the Appryzing was that by Contract of Marriage Alexander Hume had Disponed several Husband Lands to Iohn reserving his own Liferent of certain Husband Lands The Father continued to possesse the Lands Reserved and the Son of the rest The Question is now concerning the Lands Reserved whereanent the Competition is betwixt the Creditors Appryzers and the Donatar It was alleadged for the Donatar that he ought to be preferred because any Right the Creditors had is but an Appryzing and a Charge without Infeftment which Charge albeit it be equivalent to an Infeftment in the Competition betwixt Con-compryzers yet it is no way equivalent as to the King for after the Charge all Casualities of the Superiority would fall to the Superior and so must the Casuality of Forefaulture fall to the King 2ly Though the Appryzers had been Infeft when they Charged their Infeftment would have been long after the committing of the Crime and there was nothing before the Crime but the naked Appryzing which was no real Right so that the Forefaulture devolving the Fee to the King with the burden only of such real Rights as the Superiour had consented to before the Cryme which cannot extend to this Appryzing which is no real Right or to the Charge and Infeftment thereon because after the Crime 3ly Albeit the Infeftment of the Son who was Forefault was base holden of the Father yet it coming in the Person of the King or his Donatar can no more be a base Right but becomes publick so soon as it is devolved to the King which was at the committing of the Crime before the Appryzers Infeftment or Charge It was answered for the Creditors that they ought to be preferred upon their legal Diligence for satisfaction of the lawful Debt contracted before the Crime because they had Appryzed before the Crime and had Charged the Superiour before the Sentence of Forefaulture Which Charge is equivalent to an Infeftment and the King succeeding in the place of the Forefault Person utiâur jure privato and albeit noâ voluntar Deed after the Committing of the Crime would be effectual against the King or his Donatar Yet an Appryzing before the Crime and a Charge before the Sentence or Process of Forefaulture is sufficient in favours of the Creditors especially seing the Superiority being unquestionably in their Father they might Charge him when they pleased and having Charged him they become in his place and cannot Charge themselves as Superiours of the Forefault Person The Lords preferred the Appryzers in respect of their Appryzing before the Crime and the Charge after before the Forefaulture It was further alleadged for the Appryzers that the forefault Persons Right being only base never cled with Possession their Appryzing against the Father who was not forefault was preferable It was answered for the Donatar that the Forefault Persons Right was cled with Possession in so far as the Forefault Person possest a great part of the Lands Disponed lying all together and of the rest the Fathers liferent being reserved the Fathers Possession was the Sons Possession It was answered that Possession of a part cannot be sufficient for the whole where there is an express Reservation hindering the Natural Possession of the rest and where the rest are actually possest by another Party neither can the Fathers Possession be the Sons because it is ordinarly found that Dispositions by a Father to his eldest Son and Infeftments thereon reserving the Fathers Liferent are not thereby cled with Possession And albeit in Reservations in favours of Wives the Husbands Possession be the Wifes Possession yet that is a special priviledge favore matrimonij dotis and is not competent to any other It was answered for the Donatar that a Reservation in favours of a Father in any gratuitous and clandestine Infeftment granted to the Son does not validate the same yet the Infeftment being for a Cause onerous viz. a Marriage which is a solemn and publick Act the Infeftment following thereupon is void of all suspition of Simulation and as an Infeftment to a Stranger reserving the Disponers Liferent would be valid by the Disponers Possession So must a Sons upon a Contract of Marriage otherwise great prejudice will follow Sons being frequently Infeft in their Fathers whole Estate reserving their Liferent of a part and ordinarly but basely Infeft to secure the Property being more desirous to Enter themselves as Heirs to their Fathers after their death if no posterior prejudicial deeds be done which is more honourable for the Family all the Infeftments would be overthrown being upon Debts contracted after the Infeftment The Lords being of different Iudgements in this Point were loath to decide them because the Case was decided by the former Vote Stevin contra Iohn Boid Iuly 9. 1667. IN a Tutor Compt at the Instance of Stevin against Iohn Boid these Queries were Reported by the Auditor and determined by the Lords 1. How soon a Tutor was obliged for Annualrent of the Defuncts Bonds that
the same which Decisions can only make a Custom equivalent to Law 2dly Albeit where Wodsets were before the Inhibition the Debtor might accept Renunciation because by the Reversion the Wodsetter is obliged to grant Renunciation upon payment so that the granting of the Renunciation being upon an obligment Anterior to the Inhibition could not be prejudged by the Inhibition as is found in all cases but here the Wodset was contracted after the Inhibition 3dly The Renunciation here granted was voluntarly accepted and payment was voluntarly made because there was a Clause of Premonition and Requisition in the Wodset which was not used It was answered that the Stile of Inhibitions is no Rule seing it prohibits the Selling of Goods and Geir to which no Inhibition is extended and there being no Law nor any Dicision that an Inhibition should be extended against a Renunciation of a Wodset the common Opinion and common Custom of the Nation to the contrair is sufficient neither is there any difference in the Custom whether the Wodset be contracted after the Inhibition or before and if there were there is much more reason that Wodsets contracted before should rather be subject to the Inhibition then Wodsets contracted after by which the Creditor Inhibiter is in no worse condition when they are Renunced then he was the time of his Inhibition neither was the payment here made voluntar albeit Requisition was not used because there being an obligement to pay the delay upon the Requisition being only for a few days no prudent Man would suffer himself to be charged upon the Requisition and it is no more voluntar then if a Creditor should pay before the Registration of his Bond because he could not be compelled before it were Registrat and he charged but seing Law and Custom obliged not Debtors to inquire for Inhibitions they may pay what way they please and albeit there had been a Requisition yea and a Consignation unless the Debtor after Inhibition had been obliged to call the Inhibiter it could operat nothing as to the Inhibiter It was answered that there would be a great Detriment to Creditors if they cannot affect Wodseâs by Inhibition seing these cannot be Arrested It was answered they might be Appryzed It was answered they might be Renunced before the Term of payment of the Creditors Debt so that Appryzing could not proceed and that a Debtors whole Estate may consist in a Wodset It was answered that that case could seldom occur and that there was neither Law nor Custom introduced upon that account The Lords found that the Inhibition could not operat against the Renunciation of the Woose and decided that general point by it self for clearing the I ieges and ordaiâed the Parties to be heard upon some other Points in this particular Case as that payment of this Wodset was made after the parties was in mala fide after processe intented against him by Mr. John Eleis Hamiltoun contra Symintoun Eodem die DAvid Hamiltoun as Assigney by Robert Steel to a Bond granted by Andrew Symintoun pursues Grissel Symintoun as representing him for payment who alleadged absolvitor because the alleadged Bond is manifestly null in so far as on that side where the Subscriptions is there is only the Clause of Registration and all the rest is filled on the other side with another Hand and there is not one word on the Subscribed side of the Matter of the Bond that might have Connexion with the back-side which is unsubscribed so that this has been the last Sheet of a Writ taken off and filled upon the back upon which anything might have been filled up that the Pursuer pleased The pursuer answered that he oponed his Bond subscribed by VVitnesses which he byds by as a true Deed and is valide unless it were improven The Lords found this Writ null and yet declared that if the pursuer could adduce VVrits or Adminicles to astruct the same they would Examine the same ex officio as the VVriter and VVitnesses if they were alive The said pursuer did also insist against the Defender for her own Aliment as having Right thereto from his own Son who had Married her Mother It was alleadged for the Defender that her Mother Liferented her whole Estate and so by Act of parliament was obliged to Aliment the appearand Heir It was answered the Defender had Renunced to be Heir to the same Pursuer and so could not crave that Benefite It was answered that as Appearand Heir She had Right to the Aliment and her offering to Renunce was but to save her from personal Excution and it could not prejudge her of her Aliment which she had received before she Renunced Which the Lords found Relevant Lady Burgy contra Her Tennants and Sir John Strachan Iuly 18. 1667. THe Lady Burgy pursues the Tennants of her liferent-Liferent-lands to Remove Compearance is made for Sir Iohn Strachan who alleadges that he stands publickly Infeft in this Land and in Possession and will not suffer his Tennents to Remove It was replyed that the Pursuers Infeftment in Liferent is long before Sir Iohns and could take no effect till now that her Husband is dead It is answered that the Ladies Infeftment is base and therefore though it be prior to Sir Iohns publick Infeftment it cannot be preferred thereto unless it were alleadged it was cled with Possession before the publick Infeftment either by the Ladies own possession or at least by her Husbands possession but she cannot alleadge either because these parties were in possession from the Date of her Infeftment till the Date of this publick Infeftment It was answered for the Lady that she offered her to prove her Husband was in possession after her Infeftment and before the Defenderes Infeftment by himself or at least by these who derived Temporary or Redeemable Rights from him or his Authors as Liferents Wodsets and unexpired Comprysings It was answered that albeit favore Matrimonij the Husbands possession though common author be counted the Wifes possession yet the possession of a Wodsetter or Appryzer are neither said to be the Wifes possession nor the Husbands because they possess propâio jure and the Husband had only a Reversion The Lords found the alleadgeance Relevant for the Lady that her Husband possest after her Infeftment and before the publick Infeftment either by himself or by any deriving a Temporary Right from him or his Authors Executors of the Earl of Dirletoun contra Duke Hamiltoun Earl of Crawford and others Eodem die IN August 1645. the Earls of Crawford Lanerk and several other Noblemen and Gentlemen granted Bond to the Earl of Dirletoun bearing an Obligement therein Conjunctly and Severally to pay ten Merks for ilk Boll of 6000 Bolls of Victual that should be Delivered by Dirletoun to Iames Riddel or his Deputes the said Earl always obtaining Iames Riddels Receipt thereupon which Delivery and Receipt were to be betwixt and a blank day and the Receipt to be Delivered before
Witnesses and preferred the Pursuer in probation thereof and in respect of so unwarrantable a way of Disposing they would neither allow Retention nor Compensation but left the Defender to make his Application to the Exchequher for his payment Margaret Pringle and her Spouse contra Robert Pringle of Stichel November 29. 1667. MArgaret Pringle pursues an Exhibition of all Writs granted by or to her Umquhil Brother ad deliberandum It was alleadged no Process for Writs granted by him to Strangers except such as were in his Family conform to the late Decision Schaw of Sornbeg contra Tailzifare which they declared they would follow as a Rule The Pursuer answered that he Insisted for Exhibition of such Writs as were granted by the Defunct to any person which were in his possession or Charter Chist the time of his Death Which the Lords Sustained Duke Hamiltoun contra the Laird of Allardine December 6. 1667. THe Duke of Hamiltoun having Charged the Laird of Allardine for the six Terms Taxation Imposed anno 1633. He Suspends on this Reason that four Terms were payed by the Earl of Marishal Sheriff which must Exoner him and all other persons of the Shire and is instructed by the Books of the Clerk to the Taxations It was answered that the Reason is not relevant because the Sheriffs did ordinarly Lift a part of all the six Terms and albeit the Sheriff compleated the first four yet he might have done it out of his own Money or out of the other two and so when the King Charges for the other two the Sheriffs Discharges will Exclude him so that he shall not want the first four but so much of the other two and therefore unless the Suspender can produce a Discharge of the first four the general Discharge granted to the Sheriff cannot Liberat him It was answered that when the King or his Collector Charges the Collectors general Discharges cannot but meet himself and whether the Suspender had payed or not the general Collector cannot seek these Terms twice It is true âf the Sheriff were Charged the Suspender behoved to show to him his Discharge but the Earl of Marishal Sheriff could not Charge the Suspender for the Taxation of these Lands because the Earl of Marishal was both Sheriff and Heretor at that time and Sold the Lands to the Suspender with Warrandice The Lords found the general Discharge sufficient to the Suspender against the general Collector or any authorised by him Earl of Lauderdale and Iohn Wachop contra Major Biggar December 7. 1661. THe Earl of Lauderdale and Iohn Wachop Macer pursue a Reduction and Improbation of the Rights of the Lands of Hill against Major Biggar and craved Certification contra non producta The Defender alleadged no Certification because he had produced sufficient Rights to exclude the Pursuers Title viz. Infeftments long prior to the Pursuers Right It was answered that this could not stop the Certification unless the Defender would declare he would make use of no other Rights in this Instance otherwise the Pursuers behoved to Dispute with him upon every single Writ he produced and behoved to Dispute the Reasons of Reduction with him before the Production were closed The Pursuer answered that his alleadgeance as it is proponed was alwise Sustained without declaring that he woâld make use of no more The Lords found the Defenses as proponed relevant and ordained the ordinar to hear the Parties Debate upon the Rights produced and if these should not prove sufficient the Lords thought that the Defender might be forced at the next time to produce all he would make use of in this Cause that so the Pursuers were not delayed upon Disputing upon every single Writ Earl of Cassils contra Sheriff of Galloway December 10. 1667. THe Earl of Cassils pursues the Sheriff of Galloway and the Tennents of Achnotorâch for abstracted Multures and Insists on this ground against the Sheriff that he being Heretor of the Lands and Vassal to the Pursuer did command them to leave the Pursuers Miln and come to his own Miln and so was Liable The Defender alleadged that this Member of the Summons is not relevant because any man may desire any persons he pleases to come to his Miln and there was never a pursute Sustained against any others then the Abstracters and not against these to whose Miln they came 2dly It is not Libelled that the Defender got a greater Duty upon the Tennents coming to his Miln and although he had it were not relevant 3dly By the Defenders Rights he is Liberat of all Multures except Knavship and Bannock which is only the Hire due to the Millers for their Service and there is no obligement upon him to cause his Tennents come to the Miln It was answered the Pursuer offered to prove the Defender had gotten a greater Duty upon the Tennents coming to his miln and albeit the Astriction be only of Knavship and Bannock that is not alone due for the Millers service but there is a profit thence arising to the Master that the Sheriff being Heretor and Vassal albeit he be not personally obliged to cause the Tennents come to his Miln yet the Lands being Astricted by his Infeftment it was his fault to remove them The Lords Assoilzied from that Member of the Lybel and found it not relevant against the Heretor but only against the Tennents Mr. Rodger Hog contra the Countess of Home Eodem die MAster Rodger Hog having Appryzed certain Lands from the Laird of Wauchtoun in Alcambus which were Sold to Wauchtoun by the Earl of Home with absolute Warrandice Upon which Warrandice there was Inhibition used whereupon Mr. Rodger pursues Reduction of an Infeftment of Warrandice of these Lands granted by the Earl of Home to my Lady in Warrandice of the Lands of Hirsil and that because the said Infeftment of Warrandice is posterior to the Inhibition The Defender alleadged that there could be no Reduction upon the Inhibition because therewas yet no Distress which with a Decreet of the Liquidation of the Distress behoved to preceed any Reduction and albeit there might be a Declarator that my Ladies Infeftment should not be prejudicial to the Clause of Warrandice or any Distress following thereupon yet there could be no Reduction till the Distress were Existent and Liquidat The Pursuer answered that a Reduction upon an Inhibition was in effect a Declarator that the posterior Rights should not prejudge the Ground of the Inhibition for no Reduction is absolute but only in so far as the Rights Reduced may be prejudicial to the Rights whereupon the Reduction proceeds The Lords Sustained the Reduction to take effect so soon as any Distresse should occur Mr. Iames Straiton contra the Countess of Home Eodem die MAster Iames Straiton Minister of Gordoun having obtained Decreet conform upon an old Locality Charges my Lady Home for payment who Suspends and alleadges that she must be liberat of a Chalder of Victual contained in the
he refused without an equal division and several of the Witnesses having Deponed that that difference was referred to the Owners without dissolving the consortship Mastertoun himself having also Deponed that in contemplation of the consortship Coningsbies Men waâ put Aboard of him and the Prize and the Witnesses having variously Deponed anent the distance when the first Prize streiked Sail and was taken The Lords found a consortship sufficiently proven and that there was a concourse as to the first Prize and therefore found Coningsby to have a Right to a share which they found to be the equal share seing Mastertoun was most instrumental and did actually seize upon both Prizes The Minister of Cockburns-path contra his Parochiners Eodem die THe Minister of Cockburns-path having obtained a Designation of a Horse and two Kines Grasse conform to the Act of Parliament 1661. pursues a Declarator of his Right thereby It was alleadged Absolvitor because the Designation was null in respect it was by the Bishops Warrand direct to three Ministers Nominatim and it was performed only by two the third not having come and a Commission to the three must be understood joyntly and not to empower any two of them unlesse it had been exprest likeas the Act of Parliament anent the Grasse requires the Designation of three Ministers The Pursuer answered that by the Act of Parliament 1661. the Designation of Grasse is appointed to be according to the old standing Acts anent Manses and Gleibs which do not require three Ministers that number being only required by the Act of Parliament 1649. which is Rescinded and not revived as to that point and seing three Ministers are not necesâar but that two are sufficient the Designation done by two is sufficient The Lords Sustained the Designation unlesse the Defender shew weighty Reasons of prejudice upon the matter Sir John Weyms contra the Laird of Touchon February 8. 1668. SIr Iohn Weyms having a Commission from the Parliament to lift the Maintainance when he was General Commissar Charges the Laird of Touchon for his Lands who Suspended on this Reason that by that Act and Commission singular Successors are excepted The Pursuer answered that the Act excepteth singular Successors who Bought the Lands but the Suspender is appearand Heir and Bought in Appryzings for small Sums and as Wodsetters are not freed as singular Successors nor Appryzers within the legal so neither can the Suspender for albeit the legal as to the Appryzer be expired yet the Act of Parliament between Debtor and Creditor makes all Apprizings Bought in by appearand Heirs Redeemable from them on payment of the Sums they Bought them in for within ten years after they Bought them and therefore as to Touchon who is apperand Heir he is in the same case with an Appryzer within the legal Which the Lords found relevant and Decerned against Touchon Andrew Greirson contra Patrick Mcilroy Messenger February 13. 1668. ANdrew Greirson having employed Patrick Mcilroy Messenger to use Inhibition and Arrestment against Sir Iames Mcdougal of Garthland and having failed to make use thereof in time before he Disponed did pursue him and Houstoun of Cutreoch his Cautioner before the Lord Lyon whereupon the said Patrick and his Cautioner were Decerned to make payment of 500 Merks of Penalty and of the Damnage and Interest sustained by the Pursuer to the value of the Sums whereupon the Inhibition and Arrestment should have been used The Messenger and his Cautioner raises Suspension and Reduction and insists upon this Reason that the Decreet is null as a non suo judice because albeit the Lyon be Authorized by Act of Parliament 1587. cap. 46. to take Caution for Messengers Discharge of their Office and upon default may Summond Messengers and their Cautioners and may Deprive the Messengers and Decern them and their Cautioners in the pains and penalty for which they became Cautioners yet the Lyon is not warranted thereby to Determine the Damnage of Parties through Default of Messengers which may be of the greatest Moment and Intricacy and would be of dangerous consequence to give the Lyon such Jurisdiction over all the Kingdom The Charger answered that the Messenger was unquestionably lyable to the Lyons Juridiction and that both he and the Cautioner had made themselves lyable thereto by Enacting themselves in the Lyons Books ând granting Bond Registerable therein and it would be great inconvenience to pursue Messengers before the Lyon only for Deprivation and Penalty and have need of another Process for Damnage and Interest and that the Lyon has been accustomed to Decern Cautioners so before The Lords found the Reason of Reduction relevant and turned the Decreet into a Lybel but Sustained the Decreet as to the Penalty of 500. Merks in which the Messenger was Enacted but nât for the Damnage and Interest neââher against the Messenger nor Cautioner William Borthwick contra Lord Borthwick February 14. 1668. WIlliam Borthwick having Charged the Lord Borthwick for payment of a Sum of Money he Suspends and alleadges that William is Debtor to him in an equivalent Sum for the price of the Lands of Halâeriot Sold by my Lord to the Charger conform to a Minut produced The Charger answered that the Reason was not relevant unlâsse the Suspender would extend and perfect the Minut which my Lord refuses especially and particularly to Subscribe a Disposition of the Lands with common Pasturage in Borthwick Moor. The Suspender answered that he was most willing to extend the Minut but would not insert that Clause because the Minut could not carry nor import the same bearing only a Disposition of the Lands with Parts Pendicles and Pertinents thereof which he was content should be insert in the extended Disposition and it was only proper after the Infeftment was perfected that the Charger should make use of it so far as it could reach which he was content should be reserved as accords 2dly If he were obliged to Dispute the effect of it it could not extend to Pasturage in the Moor of Borthwickâ first Because a special servitude of a Pasturage in such a Moor requires an express Infeftment and cannot be carried under the name of Pendicles Parts or Pertinents albeit the Moor were contiguous and the common Moor of a Barony but 2dly This Moor lyes discontiguous from the Lands of Halheriot and my Lords Lands lyes betwixt and does not belong to the whole Barony but to some of the Tennents of it only The Charger answered that this being a Minut behâved to be extended in ample form expressing all Rights particularly that the Right de jure could carry and there was no Reason to make him accept of Lands with a Plea and de jure Pendicles and Pertinents do well extend to common Pasturage when the said Pasturage is so Possessed and it cannot be contraverted but the Heretors and Possessors of Halheriot have been in undoubted Possession of common Pasturage in this Moor and that the Rent payable therefore is
upon consideration of the Pasturage without which it could neither give the Rent it payes nor the Price so that when my Lord Dispones the Lands with the Pertinents and at the time of the Disposition this Pasturage is unquestionably Possest as a Pertinent of the Land the extended Charter and Disposition ought in all Reason to comprehend it expresly neither is there any difference whether the Pasturage be of a Moor contiguous or belonging to the whole Barony seing it cannot be Contraverted but it was Possest as Pertinent of this Room the time of the Bargain and to clear that it was so Possest the Charger produced a Wodset granted by the Lord Borthwick to himself of the same Room bearing expresly Pasturage in the common Moor of Borthwick The Suspender answered that the Wodset made against the Charger in respect this Clause being express in the Wodset he had not put it in the Minut which as jus nobilius absorbed the Wodset and cannot be looked upon as a Discharge of the Reversion only because my Lord was Superior by the Wodset and by the Minut he is to Resign likeas in the minut there is a Disposition of the Teinds which is not in the Wodset The Lords found that the Minut ought to be extended bearing expresly the common Pasturage in the Moor of Borthwick in respect the same was a Pertinent of the Lands Sold the time of the Bargain and was not excepted Sir George Mckenzy contra Iohn Fairholm Eodem die SIr George Mckenzie insisted in the Reduction of the Bond Subscribed by him as Cautioner for his Father in his Minority It was alleadged for Iohn Fairholm that he could not Reduce upon Minority because he had Homologat the Bonds after his Majority in so far as he had accepted Discharges of the Annualrent bearing Deduction of the Bond by his Father as Principal and him as Cautioner and Discharging them both which Discharges Sir George himself did Receive from Iohn Fairholm and payed the Money Sir George answered that the Discharges do not bear that he payed the Money but bears that the same was payed by the Principal Debtor and his Receiving of a Discharge not having payed cannot import his Homologation or acknowledgement of the Bond for to prevent question and trouble one may take Discharge of what he denyes to be Due and the Bond being then standing Unreduced he may well accept a Discharge not knowing the event of the relevancy or probation of his Minority The Lords Repelled the Defense and found that the Discharges imported no Homologation unlesse it were instructed that Sir George out of his own Money payed the Annualrent The Laird of Haining contra the Town of Selkirk February 15. 1668. THere being mutual Pursuits betwixt the Town of Selkirk and the Laird of Haining the Town pursuing a Declarator of the Right of Property of the Commonty of Selkirk and Haining pursuing a Declarator of his Right of Pasturage in the said Commonty by vertue of his Infeftments of the Lands of Haining which Lands are a part of the Kings Property of the Barony of Selkirk and that this Common is the Commonty of the said Barony Possest by all the adjacent Fewars of the Barony and whereof they have been in immemorial Possession The Lords did before answer ordain both Parties to produce all Rights Writs or Evidents they would make use of in the Cause and also to adduce Witnesses hinc inde of both their Possessions and interrupting others Haining produced a Charter by the King in anno 1505. of the Lands of Haining being a part of the Kings Property bearing cum partibus et pertinentibus cum pascuis et pasturis but not bearing in communi pastura or cum communiis generally or particularly in the Common of Selkirk he did also produce posterior Charters of the same Land bearing cum communi pastura and did adduce several Witnesses proving 40. years continual Possession but some of his Witnesses proved Interruptions by the Town of Selkirk's cutting of Divots cast by him and his Predecessors upon the Moor. The Town of Selkirk produced their Charter of the Burgh posterior to Hainings first Charter bearing that their Ancient Evidents were burnt by the English and therefore the King gives them the Priviledge of the Burgh of Selkirk with the Burgage Lands thereof cum communiis ad dictum Burgum spectantibus which the King confirms by a posterior Charter giving the Town warrand to Ryve out 1000. Aikers of Land of the Common they did also produce several Instruments of interruption not only by cutting of the Fail and Divots cast by Haining or his Tennents but by turning their Cattel off the Moor as proper to themselves and turning off all the Heretors Cattel they found thereupon and by yearly Riding about the whole Marches of the Moor. They did also produce a Decreet at the Towns Instance against the Tennents of Haining Decerning them to Defist and Cease from the Moor in which Decreet Hainings Predecessor was Provost of Selkirk and is Pursuer of the Cause they also produced two Missives Written by Umquhil Haining acknowledging that the Town had cut his Divots Casten upon the Head Room and making apollogy for Casting of the same denying it to be by his Warrand or Knowledge they did also produce two Acts of the Town Court bearing Haining to have desired liberty to draw Stones off the Common to Build a Park Dike and to Cast some Divots for his Tennents Houses they did also adduce several Witnesses proving their continual and uninterrupted Possession of the Moor this fourty years and more which proved also frequent interruptions against Haining especially by cutting of Divots and also by turning off his Cattel upon which probation it was alleadged for the Town that they had instructed sufficient Right to the Property of this Moor and that they had debarred the Laird of Haining and his Tennents therefrom whenever they heard they came upon the same It was answered for Haining that he did not deny the Town of Selkirks Right of Pasturage in the Moor but did deny they had Right of Property therein but that the property did yet remain in the King as a part of the Barony of Selkirk being of the Kings annexed Property but that the said Property as to the Moor was now burdened with a Common Pasturage belonging to the Town of Selkirk and also belonging to the Laird of Haining and the other Feuars of the Barony of Selkirk and therefore alleadged that his Charter in the year of God 1507. being long before any Charter granted by the King to the Town did Feu to his Predecessors the Lands of Haining cum pertinentibus cum pascuis pasturis and this Common being the Commonty of the Barony of Selkirk the King Feuing a part of the Barony cum pertinentibus et pascuis did certainly thereby grant all that belonged to these Lands as Pertinent thereof as it was the time of the Feu being then Possessed by the
Kings Farmorers but that they had Common Pasturage in the Moor of Selkirk is not only presumed because it is the Common of the whole Barony and Possest by all the adjacent Feuars thereof but also by their continual Possession since for Possession 40. years is sufficient to prove all bygone Possession since the Right capable of that Possession it being impossible to adduce Witnesses to prove Possession eight score years since otherways and therefore as in the Case of the Lord Borthwick and William Borthwick Decided the 14th of this Instant The Lord Borthwicks Minut Disponing the Lands cum pertinentibus without any word of Pasturage was found to carry Common Pasturage in the Moor of Borthwick as being a Pertinent of the Lands Disponed the time of the Minut and not Reserved much more the King Disponing the Lands of Haining not only cum pertnenâtibus but cum pascuis et pasturis did carry to Haining the Right of Common Pasturage in the Common of Selkirk being then the Commonty of the Barony so that any Interruptions done since cannot take away the Right of Common Pasturage once constitute by the King and albeit the King had unquestionably granted the Right of Property to the Town thereafter yet that could not prejudge the Common Pasturage of another Constitute before For if Haining claimed this Common Pasturage only by Possession and Prescription Interruptions might be Sustained to exclude the famine but he claimes it chiefly by vertue of his Infeftment as having Right thereto the first day he was Infeft so that his Possession since albeit troubled by this Commonalty yet preserves his Right that the Town cannot alleadge a total and compleat Possession excluding him and thereby taking away his Right by Prescription in their Favour and as to the Towns Charter cum communiis it contains nothing per expressum of this Moor or Pasturage therein nor gives any thing de novo but bears cum communiis adâurgum spectantibus which the King might have given though there had not been a Commonty within 40. Miles in the same manner as the common Clauses in all Charters bearing Coal and Chalk Cuningars or Ducats whether there be any or not and the most the Town can pretend by their Charter is that they being a Burgh Erected within the Barony of Selkirk cum communiis may therefore claim Pasturage with the rest of the Feuars of the Barony but cannot exclude them as to the Liberty granted by the King to Ryve out a 1000. Aikers it clearly evinceth that they had not the Property before neither did that take any effect nor could it because the common Pasturage constitute to the Feuars before would have hindered any posterior power of Tillage As to the Decreet against the Tennents of Haining it is in absence the Heretor for the time not being callâd and albeit it bears Hainings Predecessor as Provost to be present that will neither import his Consent nor Knowledge Countrey Gentlemen being then ordinarly Provosts of Towns who lived not with them their Affairs at Law were Managed by their Town Clerk and Baillies though the Provosts Name behoved to be insert neither did this Decreet take effect for Hainings Tennents never ceased to pasture as to the Letters they do only acknowledge the towns Head Rooms because in great Commonties it is ordinar for several proprietars to have peculiar Places most convenient for them where they law their Cattel and casts Fail and Divot and which doth sufficiently consist with the Commonty as for the Acts of Court they can prove nothing against Haining The Lords found that the Town of Selkirk had undoubted Right of Pâsturage Fewel Fail and Divot in this Commonty and that they had immemorial Possession thereof without any interruption and found that Haining had no Right by vertue of Possession and Prescription but found that by vertue of his Charter anterior to the Towns Right he had Right to common Pasturage in this Moor it being the Common Moor of the Barony but seing he did not sufficiently prove Possession of Fail and Divot but was therein continually interrupted much more then in the Pasturage and that nothing appeared that in the time of his Original Right the Feuars had priviledge of Fail and Divot Therefore the Lords found that he had no Right thereto albeit common Pasturage doth ordinarly carry therewith Fail and Divot yet they found that it was a several Servitude separable therefrom either by Consent or Custom and found that the Town should enjoy their Head Rooms excluding Haining therefrom Iames Colquhoun contra Watson Eodem die JAmes Colquhoun Pipe-maker in Glasgow having gotten a tollerance from George Blair Heretor of Lunloch to dig Clay for Pipes there for certain years excluding all others there being an anterior Tack of the Lands the Tennents grants licence to one Watson for digging Clay there for Pipes the Heretor also concurrs with Watson Colquhoun pursues Watson for Intrusion and to desist from medling with any Clay there and for paying the value of what he had medled with Watson alleadged Absolvitor First Because the licence granted to the Pursuer being exclusive of all others was contra bonum publicum 2dly The licence was posterior to the Tennents Tack who thereby had Right to the whole profits of the Ground and accordingly gave tollerance to the Defender 3dly The Heretor having granted the Tack could not in prejudice thereof give power to the Pursuer to break the arable Ground and there being much more Clay nor the Pursuer could make use of ought to give power to the Defender to make use thereof for that effect The Pursuer answered that a total and negative licence was legal as well as any other total and sole Right and it was free to the Heretor to grant the same but could do no posterior Deed contrair thereto because he had bound up his own hands thereby â and as to the Tack whether posterior or anterior to the licence it can only give Right to the Tennent uli fruiut colonus to Manure the Ground and reap the profits thereof but cannot give him Right to any Mineral under the superfice whether Coal Lime-stone Clay c. which is reserved to the Heretor and he may make use thereof which necessarly imports that he may break up the Ground to come at it or else the Right were not reserved to him and he is most willing to satisfie the Tennents damnage by opening the Ground neither needs any reservation thereof be exprest because it s implyed in the nature of the Tack which gives only power of the Superfice Tillage Pasturage and Profits thereof but the Tennent has no power to take away part of the Ground or to give licence to any other so to do The Lords Repelled the Defenses and found the Pursuer had the only Right by the Heretors exclusive licence and that the Tennent by his Tack had no Right to this Clay and that albeit his Tack was prior to the
Suspenders Oâth or VVrit The Lords fâund that the granting of the Bond was no Hâmologation of the Decreet but that âe might quarrel the same and that the giving of the Bond was no Transaction if he payed or gave Bond for the whole Sums contained in the Decreet but found that âf in consideration of the Grounds upon which he might quarrel the same he had gâââen an abatement by Arbitration or otherwise that he could not quarrel the same and found it only probable by his Oath or âârit Iames Donaldson contra Harrower Eodem die JAmes Donaldson pursues Iohn Harrower as representing his Father for whom the Pursuer became Cautioner to the Lord Rollo for 100. pound for relief of the Defuncts Goods that were then a poinding for which the Defunct promised payment and did pay the Lord Rollo and produces a Testificat of the Lord Rollo's thereof and craves payment and offers to prove the Libel by VVitnesses the Libel not being above an hundred pound It was alleadged for the Defender that this being a Cautionry and a Promise it was not probable by VVitnesses especially after so long a time the Promiser being dead who might either qualifie the Promise or instruct payment there being nothing more ordinar then to Transact such Affairs without any VVrit The Lords found the Libel not probable by Witnesses Frazer contra Frazer Eodem die JOhn Frazer having obtained a Decreet against William Frazer his Brother to deliver a Tack of the Lands of Boghead granted to their Father and his Heirs to whom the said Iohn is Heir William Suspends on this Reason that he is Heir to his Father of the second Marriage and produces his Retour and produces the Contract of Marriage including a Clause that all Tacks Conquest during the Marriage should belong to the Heirs of the Marriage and this Tack being Acquired during the Marriage the same belongs to him and albeit it he conceived to the Heirs generally yet by the Contract the Pursuer as Heir general will be oblieged to Assign It was answered that this Tack was no new Conquest but had been the old Possession of the Father and the Tack bare the Lands to be presently possest by him The Lords found this Tack to fall under the Clause of Conquest unless the Pursuer prove that there was an old Tack standing which expyred not till the second Marriage was Dissolved in lieu whereof this new Tack was taken Hamiltoun contra Callender Iuly 7. 1668. JAmes Hamiltoun having taken his Debitor with Caption offered him to Iames Callender Baillie of Falkirk to be Incarcerat in the Tolbooth of Falkirk and he refusing he now pursues a subsidiary Action against the Baillie for payment of the Debt who alleadged Absolvitor because he is no Magistrate of a Burgh Royal but of a Burgh of Regality the Baillies whereof were never in custom to be Charged with Rebels The Pursuer opponed the Act of Parliament 1597. cap. 279. bearing expresly Baillies of Stewartries and Regalities according to which the Tenor of all Captions bears the Letters to be direct against all Baillies of Regalities The Defender answered that for the Letters it is but stylus curiae and for the Act of Parliament the Narrative and Reason thereof relates only to Burghs having Provest Baillies and Common Good The Lords having considered the Act of Parliament Repelled the Defense and Decerned here the Rebel was Residenter within the Burgh of Regality where there was known to be a convenient Prison Relict of William Pattoun contra Relict of Archibald Pattoun Eodem die THE Relict and Executors of William Pattoun pursues the Relict and Executors of Archibald Pattoun for Compt and Reckoning of Sums and Goods belonging to the said umquhil William Pattoun by Archibald and craves the Defender to produce Archiâalds Compt Books who alleadgen nemo tenetur edere instrumenta sua contra se ad fundandam âitem so that the desire was no wayes reasonable unless the Pursuer had given in a particular Charge and Litiscontestation had been made thereon in which case the Defender might have been compelled ad modum probationis to have produced the Books It was answered the contrair was found in the Compt and Reckoning betwixt the Children of George Suiâty against the Representatives of William Suitty their Tutor and that there was as great reason here the two Defuncts having been Brothers and being in Copartnery together and the one Factor for the other It was answered that the case of a Tutor and his Pupil was no way alike because the Tutors Compt Book was in effect the Pupils and the Copartinery and Factory was denyed The Lords ordained the Book to be put in the hands of the Auditor and if he found by inspection thereof any Accompts appeared as betwixt Partners and Factors he should produce the same to the other Party even ad fundandam litem otherwise that the same should be given back and not showen to the Pursuer Margaret Alexander contra Laird of Clackmannan Iuly 9. 1668. MArgaret Alexander being Infeft in an annualrent out of the Lands of Sauchie by a posterior Infeftment in Corroboration of the former Right she was Infeft in that same Annualrent out of other Lands whereof she was in Possession but this posterior Infeftment being Reduced upon an Inhibition prior thereto she pursues poinding of the Ground of the Lands of Sauchie upon the first Infeftment It was alleadged for Clackmannan Absolvitor because the Pursuers Right of Annualrent is base never cled with Possession and now he is Infeft in the Lands either publickly or by another Infeftment cled with Possession The Pursuer answered that the Infeftment in the Lands of Sauchie was sufficiently cled with Possession in so far as the posterior Infeftment of Annualrent in Corroboration thereof was cled with Possession and as payment made by the Heretor by himself for his Tennents or by Assignation to Mails and Duties of other Lands in satisfaction of the Annualrent infers Possession so payment made by his Tennents by the posterior Infeftment in Corroboration can be no worse then an Assignation to the Mails and Duties of these Lands which as it payes some Terms Annualrent of the first Infeftment so it must cloath it sufficiently with Possession It was answered that here being two distinct Infeftments at several times albeit for the Annualrent of the same sum yet the Possession of the last cannot relate to the first The Lord Repelled the Defense in respect of the Reply and found that Possession by the last Infeftment did from that time sufficiently validat the first Heugh Boog contra Robert Davidson Eodem die HEugh Boog having arrested Robert Davidsons Fee as Keeper of Herlots Hospital Pursues the Town of Edinburgh to make it forthcoming It was alleadged for Robert Davidson Absolvitor because Robert Davidson had made cessionem bonorum in favours of this Pursuer and his other Creditors and thereupon was Assoilzied The Pursuer answered that a Honorum did no
time Duncan Campbel contra the Laird of Glenorchy Iuly 25. 1668. DVncan Campbel pursues the Laird of Glenorchy for Ejecting him from certain Lands and especially that his Brother by his Direction did violently cast out the Pursuers Children and Servants out of a part of the Land Laboured by himself and perswaded and enticed his Tennents to receive Tacks from and pay the Mails and Duties to him and therefore craves Re-possession and Double Mail as the violent Profits of the whole Lands during the Defenders Possession The Defender alleadged Absolvitor because he had obtained Improbation against the Pursuer of all his Rights of these Lands and others and likewise Decreet of Removing The Pursuer answered that the Defense ought to be Repelled because the Improbation was only by a Certification when he was Prisoner in Irland and the Defender by Articles of Agreement produced had acknowledged the Pursuers Right and obliged himself to Infest him in the Lands in question 2dly Though the Pursuer had but Possession without any Right he might not be Ejected but by a Precept of Ejection from a Judge which is not alleadged The Defender answered that these Articles of Agreement were never perfected nor extended and could only import a Personal Action against the Defender for extention or implement wherein when the Pursuer insists he will get this answer that he can have no benefit of the Articles being mutual until he perform his part thereof which is not done The Lords Repelled the Defence and Duply and Sustained the Ejection The Defender alleadged further that that Member of the Libel craving violent profits for that part of the Land Possest by Tennents because by the Defenders perswasion they became his Tennents is not Relevant because Ejection is only competent to the natural Possess or upon violence and perswasion is no violence The Pursuer answered that the prevailing with the Tennents was consequent to the casting out of the Defender out of his own House and natural Possession and was as great a fault as Intrusion and equivalent thereto The Defender answered that the Law has allowed violent profits only in Ejection or Intrusion which can be drawn to no other Case though it were as great or an greater fault The Lords sustained the Defence and found violent profits only competent for that part that the Pursuer Possest naturally but if the whole Lands had been an united Tenement or Labouring that the Pursuer had been Ejected out of the principal messuage of the Barony and the Ejecter had thereby gotten Possession of the whole it is like the Lords would have sustained Ejection for the whole but this was not Pleaded Lord Rentoun contra Lambertoun Iuly 28. 1668. THis day the Lord Rentouns Processe against Lambertoun mentioned the 21. Instant was Advised by the Probation it appeared that the Corns in the Girnels of Haymouth and the Cattel in the Mains of Rentoun and Horses were taken away by Lambertoun with a Troop or Troopers and that the Corns were carried to Dunss the Army being thereabout at that time whereupon the question arose whether or not Lambertoun were lyable for these which by the Probation did not appear to be applyed to his use but to the use of the Army The Lords Assoilzied him therefrom as they had done in several cases formerly upon the Act of Indemnity whereby whatsoever was acted in the Troubles by Warrand of any Authority in Being was totally discharged and the Lords did thereupon find that the Actors were not obliged to produce or show a Warrand but that it was enough the Deeds were done manâ militari unlesse the contrair were proven by the Actors own Oath that what was medled with was not employed to entertainment of Souldiers or any other publick use but to their own private use Laird of Milntoun contra Lady Milntoun Iuly 30. 1668. THe Laird of Milntoun infifted in his Action of Reprobator wherein this point of the Dispute was only Discust whether Reprobators were competent unlesse they were protested for at the taking of the Witnesses Testimonies or whether it were sufficient to Protest at any time before Sentence or if there were no necessity at all and especially as to this Case It was alleadged there was no necessity of a Protestation and if it were there was a Protestation at the Re-examination of the Witnesses and also before Sentence It was answered that a Protestation was most necessar because the want of it was an acquiescence in the hability and honesty of the Witnesses and if it should not be necessar all Process this five years might come in question upon Reprobation which were of dangerous consequence and therefore as Incidents are not competent but when Protested for no more Reprobations as to the alleadged Protestation at the Examining of the Witnesses it is but subjoined to the Interrogators only Subscribed by one of the four Examinators who Subscribed the Testimonies and who does not remember of his Subscription so that it has been surreptitiously obtained from him as to the other Protestation the same was not when the Witnesses were taken but at the conclusion of the Cause It was answered that it was in competent time even at the conclusion and that Reprobators were not only not rejected but expresly allowed by the Pursuer by way of Action The Lords found this Reprobator competent in this Case but did not resolve the point generally whether they were competent when not at all Protested for as to which the Lords were of different Judgements but most seemed to require a Protestation ante rem Iudicatam yet so that if it were omitted the Lords might repone the Party to Reprobators if any emergent made the Testimonies suspect through inhability or corruption in the same manner as the Lords will repone Parties against Certifications Circumductions of the Term and being holden as Confest Sir George Mckenzie contra the Laird of Newhal Eodem die SIr George Mckenzie Advocat having Married a Daughter of Iohn Dickson of Hartrie they pursue a Proving of the Tenor of an Inventar of Harâries Lands wherein he altered the former Substitution of his Children in several Bonds and paricularly of a Bond of 5000. Merks granted by Whitehead of Park payable to himself and after his Decease to Helen Dickson his youngest Daughter who was Married to Ballenden of Newhal and by the Inventar the Substitution was altered and the one half of the Bond appointed to pertain to Elizabeth now Spouse to Sir George Mckenzie and the other to Helen and Michael to prove that the samine was Holograph because it wanted Witnesses there was produced for Adminicles the Copy of it written by Iohn Kelloes Hand Hartries Nephew and an judicial Instrument containing the Tenor of it by way of Transumpt but there was some words of difference between the Instrument and the Copy which was Subscribed by Iohn Ramsay Hartries Good-brother and Mr. Iohn Pringle Hariries Good-son who and several others being adduced as Witnesses Deponed
Lands for far less then the true price The Lords found the Act not to extend to Appryzers unless the sums were a competent price for the Land Appryzed and therefore found the Letters orderly proceeded Isobel and Margaret Simes contra Marrion Brown Ianuary 5. 1669. BY Contract of Marriage betwixt umquhil Thomas Sim and Marion Brown Iohn Flowan Marions Master is obliged to pay 300. Merks of Tocher and Thomas Sim is obliged to imploy the said 300. Merks and 200. Merks further for the said Marion her Liferent use the said Thomas having two Daughters Isobel and Margaret Sims he lends a sum of 400. Merks to Thomas Brown and takes the Bond on these Terms to be payed to him and the said Marion Brown the longest liver of them two in Liferent and after their Decease to Margaret and Isobel Sims The said Isobel and Margaret having pursued the said Marion before the Commissars for Delivery of this Bond as belonging to them after their Fathers Death The Commissars Assoilzied the said Marion from Delivery of the Bond and found it did belong to the said Marion her self not only as to the Annualrent but as to the Stock because her Husband having no other Means but this Bond and not having fulfilled her Contract she had Confirmed her self Executrix Creditrix in this sum and behoved to Exclude her Husbands two Daughters of a former Marriage who were provided and Forisfamiliat before Of this absolvitor the Daughters raised Reduction on this Reason that this Sum could not be Confirmed not being in bonis defuncti the Father being but Liferenter and the Daughters Feears and though they were but as heirs substitute they exclude Executors and need no Confirmation 2dly The Husband being but obliged to Employ this Tocher and 200. merks more the Pursuer must instruct that the Tocher was payed 3dly The Wife intrometted with as much of her Husbands Goods as would satisfie her Provision It was answered that the Wife not being obliged for her Tocher but another Party who was solvendo and neither being obliged nor in capacity to pursue therefore could not now after so long a time be put to prove that the Tocher was payed and for her Intromission she had Confirmed and made Faith and the Pursuers might take a dative ad omissa if they pleased but could not hoc ordine Reduce or stop her Decreet upon compearance The Lords found that albeit in Form the Bond should have been Reduced as being done in fraudem of the Wife as being a Creditor and thereafter Confirmed yet now the matter being before the Lords and the Parties poor they found the Husbands Substitution of two provided Daughters by a former Marriage null as to the Wifes provision by the Act of Parliament 1621. without necessity of Reduction the matter being but a personal Right and found the Wife not obliged to instruct the Tocher payed and therefore assoilzied from the Reduction but prejudice to the Pursuers to Confirm a dative ad omissa William Zeoman contra Mr. Patrick Oliphant and Dam Giels Moncrief Eodem die IN a Compt and Reckoning betwixt these Parties anent the satisfaction of an Appryzing the Auditor in respect that Mr. Patrick Oliphant and Dam Giels Moncrief were Contumacious and compeared not did Decern conform to William Zeomans Summonds finding the Sum satisfied and ordained them to Remove whereupon William Zeoman obtained Possession and having been several years in Possession Mr. Patrick Oliphant obtained himself and the said Dam Giels to be Reponed against the said Decreet for his Contumacy and a Writer to the Signet past Letters of Possession in his favours against William Zeoman but without a Warrant from the Lords which were found null and this Writer Deposed but Mr. Patrick having attained Possession by these Letters William Zeoman insists against him as an Intruder to quite the Possession It was alleadged for Mr. Patrick that William having obtained Possession unwarrantably by Decreet upon his pretended Contumacy and he being now restored there against he is in statu quo prius before that Decreet at which time he was in lawful peaceable Possession which only should stand and neither of the unwarrantable Possessions be regarded It was answered that William Zeomans Possession was by vertue of a Decreet then standing autore pretore and so was not vitious but Mr Patricks was without Warrant of the Lords and so was most vitious It was answered that Mr. Patrick was instantly content to Debate his Right frustra petitur quod mox est restituendum It was answered that spoliatus ante omnia est restitâendus and is not obliged to Dispute any Right till first he be Restored Which the Lords Sustained and ordained William Zeoman instantly to be Restored to the Possession My Lord Balmerino Supplicant Ianuary 7. 1669. MY Lord gave in a Bill to the Lords Representing that his Uncle was Dead and that he is nearest Heir-male to him in whose favours his Estate is provided and therefore desired that Commission might be granted to certain Persons in the Countrey to Inventar Seal and Secure his Charter Chist and to make patent Doors in his Houses Coffers and Cabins for that effect and to take my Lady his Relicts Oath where the Evidents were to the effect foresaid Compearance being made for my Lady desiring a sight of the Bill till the next day and alleadging that it was notour to the Lords that my Lady had a Disposition to the whole Estate whereupon Resignation had past in Exchequer and that the Evidents ought to be left open to the effect my Lady may instruct her Charter conform to the Disposition The Lords refused to give up the Bill it being their ordinar Course to grant such Commissions without calling or hearing Parties and that a short delay might prevent the effect of the Commission and therefore granted Commission to certain Noblemen and Gentlemen or any one of them to Inventar Seal and Secure the Evidents and to open Doors Coffers and Cabinets for that effect but refused to give Warrant to take my Ladies Oath Captain Newman contra Tennents of Whitehil and Mr. Iohn Prestoun Ianuary 8. 1669. CAptain Newman having Appryzed the Lands of Whitehil from Prestoun of Craigmiller his Debitor and being thereupon Infeft pursues the Tennents for Mails and Duties Compearance is made for Mr. Iohn Prestoun who produces a Disposition from Craigmiller his Brother of the Baronies of Craigmiller Prestoun and Whitehil Which Disposition relates this Debt of Captain Newmans and many other Debts and for satisfaction thereof Dispones these Lands to Mr. Iohn Reserving the Disponers and his Ladies Liferent containing a Reversion upon ten merks and containing a provision that it should be leisom to Craigmiller during his Life and after his Decease to Mr. Iohn to pay any of the Creditors contained in the Disposition they pleased without contributing the price proportionally to the rest of the Creditors and also produces a Renunciation by Craigmiller whereby he Renunces the
Argile not to insist against the Vassals who had been Loyal It was answered for the Earl that he had given no just grounds to his Vassals to expect that though they were in his power that he would destroy them and annul their Rights and seing His Majesty had fully and absolutely entrusted them to him they ought to have rested upon His Kindness and Generosity and not to have made all this Clamour where they have no Legal Defense it being no strange nor new thing for the King to give Gifts of Forefaulture without any Reservation of Vassals who had no Confirmation from the King yea many times without any Reservation of the Forefault Persons Debt and His Majesty has lately so done to the Marquess of Huntly to whom he gave the Estate of Huntly without Reservation either to Vassals or Creditors and that upon the Forfaulture of the Marquess of Argile who had Right to and was in Possession of the Estate of Huntly for vast sums of Mony and the Earl of Argile has the Gift of the remainder of his Fathers Estate with the burden of more Debt then the proper Debt of the House of Argile would have been over and above the Debts undertaken for the House of Huntly 2dly Whatever the Vassals might plead in Point of Favour yet they do not pretend to a Defense in Law And the Lords being Judges of the Law ought not to stop the Course thereof upon the Insinuations of any Party otherwayes they may deny the Course of Law to any of the Leidges when they please upon the account that they think the Law hard or rigorous or the Kings grants made conform thereto and whatsoever the Lords might do in the dubious Interpretation of a Treaty of Peace to know the Kings meaning yet in claris âon est locus conjecturis nothing can be clearer then the Kings meaning under His Great Seal and all the Defenders can pretend is Favour which is no Point of Right nor legal Defense The Lords granted Certification eânâra non producta conditionally that what the Vassals should produce betwixt and the tenth of November should be received and left it to the Vassals in the mean time if they thought fit to make Address to the King that he might interpose with the Earl in their Favours or to Debate any thing they thought fit when the Earl insisted for Reduction of their Rights for want of Confirmations or for Mails and Duties Agnew contra Tennents of Dronlaw Eodem die AGnem having Appryzed the Lands of Dronlaw from Mr. Robert Hay Advocat as Cautioner for the Earl of Buchan to the behove of the Earl of Kinghorn pursues the Tennents for Removing who alleadged Absolviture because the Tennents were Tennents by payment of Mail and Duty to the Liferenter Mr. Robert Hayes Mother and she is not warned nor called The Pursuer answered that the Liferenter dyed before the Term and that he was content that the Tennents should be Decerned to Remove but at the next Term of Whitsonday Yet the Lords Sustained the Defense seing the Liferenter was living the time of the Warning Farquhar contra Magistrâtes of Elgin Iuly 2. 1669. FArquhar having caused a Messenger Charge the Magistrates of Elgin to take my Lord Lovat and the Baillies being together upon the Street about eight or nine a Clock in the Morning the Messenger with several other Persons present Charged them to go into an House near by which they designed to them and to take Lovat being then in Bed and the Messenger offered to go with them and enter first yet the Bailies did not obey but said they would go at their conveniency when they had conveened their Neighbours to assist there is an Execution and Instrument upon the back of the Caption to the effect foresaid produced whereupon Farquhar pursues the Magistrates for Payment of the Debt contained in the Caption The Defenders alleadged Absolviture First Because they were no further obliged but to conveen the Neighbours of the Town and send them with the Messenger to assist which they offered to do 2dly Albeit themselves were obliged to take the Rebel if he were showen to them within their Jurisdiction yet they were not obliged to search every House of the Town for him or to enter within closle Doors 3dly The Lord Lovat being known to be a fierce young Man who ordinarly had a Minzie attending him they were not obliged to adventure upon him without calling the assistance of their Neighbours which they did within an hour or two thereafter and he was gone The Lords Repelled all these Defenses in respect of the Execution and instrument produced and found the Magistrats being Charged obliged to take the Rebel and without delay to search any House within the Town that was particularly shown to them unless they had been Repulsed by Force or the Doors by Violence keeped closse against them by the Master of the House and ordained the Pursuers to adduce the Witnesses in the Instrument and others to prove the particulars foresaid to have been so done as is therein exprest Bow contra Campbel Eodem die BOw Stabler in Edinburgh as Assigney to a Sum of Money due by Glenurchy and also as Donotar to the Escheat of his Cedent being called in a double Poinding and competing the Donator alleadged he ought to be preferred to the Arrefter because the Debt in question falling in his Cedents Escheat he had taken the Gift of the Escheat bearing expresly all Goods the Rebel had or should acquire and this Debt being acquired after the Gift did accresce to him the Rebel not being yet Relaxed It was answered that though the stile of the Gift bear all Goods to be acquired yet that is always interpret such as happen to be acquired within year and day after the Horning It was answered for the Donatar that he oppones the Tenor of his Gift and if any limitation could be thereof it could only be of Sums to be acquired within a year after the Gift and not within a year after the Horning because sometimes Gifts are not taken within a year of the Horning The Lords found the Gift to extend to the Sum in question being acquired by the Rebel within a year after the Gift and that the general Clause of Goods to be acquired did extend no further then to Goods acquired within a year after the Gift Laird of Grubbet contra More Eodem die THe Barony of Lintoun belonging to Sir Iohn Ker of Litledean the Lands of Morbatle and Otterburn are parts thereof there is a piece of Land called Greenlaw lying in the borders of Morbatle and Otterburn and there is an Heretable Right of the Lands of Otterburn granted by Sir Iohn Ker to one Young and by that Young a subaltern Right to another Young bearing the Lands of Greenlaw per expressum both these Young's joyntly Dispone to Grubbet the Lands of Otterburn with the Pertinents comprehending the Lands of Raschbogs in the
Contract of Marriage and in a Bond of Provision relative thereto became oblieged to pay to the Bairns of the Marriage beside the Heir the sum of 20000. merks at their age of 17. years reserving his own Liferent Elizabeth and Anna Boids the only Bairnes of the Marriage now after their Mothers Death and age of seventeen do with concourse of their Husbands pursue their Father to imploy the said sum of 20000. merks to himself in Liferent and them in Fee The Defender alleadged Absolvitor because the Pursuers can have no Interest in this Provision being expresly conceived in favours of the Bairns of the Marriage beside the Heir Itaest The Pursuers are the Heirs appearand of the Marriage there being no Sons and will succeed to the Estate by the Contract and so cannot demand the Provision made to the other Bairns for if there had been a Son of the Marriage only he could not have claimed this Clause and the Pursuers can be in no better Case than he It was answered that in Contracts of Marriage the meaning of the Parties is chiefly to be respected which has been that in case there were an Heir-male or Son of the Marriage this Sum should belong to the remanent Bairns and therefore it is conceived under the name of Heir in the singular number and being introduced in favours of the Daughters it ought not to be interpret against them but that they may renunce to be Heirs and be satisfied with this Provision only otherwise they may be absolutely excluded the Fathers Estate being apprized by Iohn Boid whose Legal is near to expire and who makes use of the Fathers Name without his Warrand It was answered that Law allows not in any Contract to make up new Clauses and seing the Provision is express in favours of the Bairns beside the Heir it can never quadrat to thir Pursuers who are the only Heirs The Lords found the Provision not to be extended to the Pursuers but because it was suggested that the Father did not propone it They desired the Ordinar to enquire whether the pursuit was for the Father and by his Warrand that then they might consider whether Iohn Boid the Appryzer could have interest to propone that alleadgeance Ker of Cavers and Scot of Golden-berrie Supplicants Eodem die KEr of Cavers and Scot of Golden-berrie being Arbitâators nominat by a Submission did by Bill crave Warrand from the Lords to authorize them to summond Witnesses to compear and Depone before them in the Cause in which they were Arbiters Which the Lords granted Iean Ker contra Downie Ianuary 7. 1670. JEan Ker having set a House in Edinburgh to Downie for nine Pound ten Shillings Sterling She obtains Decreet against him therefore He Suspends on this Reason that within 48. hours after he took the House he did by Instrument give it over which is the ordinar custom of Burghs where there is no Writ to quite the Bargain within a short space unless some offer interveen medio tempore by which the Party is damnified The Charger answered that this House having been taken but fourteen days before the Term there is neither Law nor Custom allowing either Party to give over or resile there being then no competent time to set again For albeit Houses sometimes are given over when they are taken and quite before Warning time when the ordinar occasion of setting to others may occur yet that cannot be drawn to this case and the Instrument of over-giving was only by Downies Wife who shew no Warrand The Suspender answered that there was no difference whether the House was taken before warning time or after seing the Law gives locum penitentiae or some small time which must take place in either case 2dly Albeit the Charger had not been obliged to accept the over-giving yet de facto she has accepted it because it is offered to be proven that she set the House to another and took Earnest thereupon which did import that she quite the first Bargain seing at once she could not set it to two 3dly Albeit offer was made of the Keys at the Term yet it is offered to be proven that the House was not void but that the former Tennents Goods remained therein The Lords Repelled the first Reason of Suspension upon the over-giving but found that Member Relevant that the House being given over the same was set to another and earnest taken therupon but found that Point that the Tennents Goods who possessed formerly were not removed not Relevant in respect of the Custom in Edinburgh not to remove peremptorly at the Term. Mr. Laurence Charters contra Parochioners of Curry Ianuary 8. 1670. MR. Laurence Charters as Executor Confirmed to Mr. Iohn Charters Minister of Currie his Father pursues the Parochioners for 1000. Pound for the Melioration of the Manse of Currie conform to the Act of Parliament 1661. which is drawn back to the Rescinded Act of Parliament 1649. It was alleadged by the Parochioners Absolvitor First Because the Meliorations of the Manse were long before any of these Acts which do only relate to Meliorations to be made thereafter and for any thing done before adificium solo cedit and it must be presumed to be done by the Minister animo donandi there being no Law when he did it by which he could expect satisfaction 2dly Several of the Defenders are singular Successors and so are not lyable for Reparations done before they were Heretors The Pursuer answered that albeit these Reparations were done before the year 1649. yet there being subsequent Acts of Parliament obliging the Heretors to make the Manses worth 1000. pounds if these former Reparations had not been made the Heretors of this Paroch would have been necessitate to make up the same and so in quantum sunt lucrati tenentur 2dly The saids Acts of Parliament contained two Points one is that whereas the intrant Minister payed to his Predecessor 500. merks for the Manse and his Executors were to receive the same from his Successor the saids Acts ordained the Heretors to free the Successor as to which the present Heretors can have no pretence and as to the alleadgeance that they are singular Successors the Acts oblige Heretors without distinction whether they are singular Successors or not The Lords found the Parochioners only lyable for the 500. merks payed by the Minister at his Entry and found that at the time of the Reparation the Parochioners not being lyable were not then lucrati and are not lyable by the subsequent Acts which extend not ad praeterita neither did they find the singular Successors lyable but that the Heretors for the time were only obliged Scot contra Murray Eodem die IN a Process betwixt Scot and Murray a Husband having granted a Tack of his Wifes Liferent Lands and the Wife having promised after his death never to quarrel that Tack yet thereafter insisting against the Tennents who alleadged upon the said promise it was answered that it being but
Captain Barclay and that some of them were Subscribed no Witnesses being present but that he had bidden the Captain put in what Witnesses he pleased and that whereas before he had declared that he had Subscribed no Disposition yet he had done it being in the power of the Lady Towies Friends who told him that Captain Barclay being next Heir-male of Towie had a mind to take his Life which he found afterward not to be true and was willing to do any Deed for conveying of the Estate to the Captain seing he had no Heirs-male of his own The Clerks of Exchequer Advocats and several Writers and their Servants were also Examined upon Oath anent the having of the said Disposition and Bond The Clerks of Exchequer Deponed that the Disposition was produced in Exchequer and Resignation made thereon and the râst Deponed that they had seen the Disposition and Bond and were Consulted thereupon by the Captain but had given them back to him Upon the whole Matter the Pursuer craved that now seing there was sufficient Probation of the Forgery of the Writs and that the Lords had produced before them a just double of the Disposition presented to the Exchequer that therefore the Lords would proceed to improve the same and to declare that the same were false and Forged by the Captain and that they would remit him to the Justice General according to the ordinary Custom in Improbations It was answered for the Defender that the Lords could not proceed to improve the Writs because the Writs were not produced and never any Writ in Scotland was improven but when the principal Writ it self was produced neither can it otherwise be for Improbation before the Lords being ad effectum civilem to take away the Writ and Right therein the same behoved alwayes to proceed upon a particular and individual Writ which therefore behoved to be produced before the Lords and Witnesses for suppose it could be prove that a Write of such a date and such a Tenor was Fabricat and Forged at such a time and place which might inâer a Crime against the Forgers yet it could not take away all right by such a Writ because there might be several Writs of the same Date and the making up and improving of a false Writ of such a Date could not take away the true Writ of the same Date unless the principal Writ it self had been produced that the Judges and Witnesses might know that that was the very Writ in question And therefore our Custom hath settled and fixed upon this Remeid by allowing a Certification that if the Writs called for to be Improven were not produced they should be holden and repute as false and feinzied and should make no Faith but did not find them proven to be Forged and Feinzied but only to make no Faith as if they had been fenzied which in this Process has been done and the Lords have neither Law nor Custom to do any further 2dly Albeit the Witnesses have by their own Testimonies declared themselves to be Forgers of false Writs their Testimonies cannot prove that Captain Barclay was either Authour or accessory to their Forgery because they are socij criminis and have by their Testimony made themselves infamous as Falsers and so there is no Faith to be given to their Testimonies against any other but themselves Besides they have given partial Counsel to the Pursuer and have betrayed their Testimonies by voluntarly coming to them and declaring what they would Depone and therefore the Lords can neither Improve the Writs nor Remit Captain Barclay to the Justice as a Falser The Pursuer answered that albeit the ordinar Course in Improbations be only Certification when the Writs are not produced yet there is nothing to hinder the Lords to use extraordinary Remeids in extraordinary Cases and there can be no Case more extraordinar than this where there is an evident Tract of Forgery for taking away a considerable Estate of sixscore Chalders of Victual Improven by the very Witnesses insert and that the Writs have not been produced It is the Defenders own fault who knowing them to be false wilfully Abstracts the same and it will be a very great incouragement to Forgery if the Forger knew that all his hazard will be to suffer Certification if his Forgery take not Neither were ever Witnesses in Improbation of Writs exclude in the Civil Process as being socij criminis But if they acknowledge the Forgery thereof they were Improved though they themselves were accessory to the Forgery otherwise if Witnesses can be induced to Subscribe as Witnesses to a forged Subscription there were no possibility of Remeid seing it cannot be thought they would suffer any other to be present or that the Forger himself would consess The Lords refused to proceed to Improve the Writs not being produced or to Remit the Parties to the Justice But they did Declare that by the Processes they found Steil Ross and Ferguson the Witnesses to be guilty of Forgery by their own Confession and that they found Captain Barclay had made use of the VVrits acknowledged to have been Forged and therefore ordained these of their number that were upon the Privy Council to Represent the Case to the Council that they might cognosâe what furder Censure they saw just to be Inflicted and it was the privat opinion of most of the Lords that at least the Witnesses and Barclay himself should be banished But they found it not proper for them to express their opinion or prelimit the Council But withal the Lords found the Probation adduced sufficient to Declare Captain Barclay and the VVitnesses infamous and did Declare them such accordingly Iames Watson contra Agnes Simpson February 1. 1670. AGnes Simpson being Infeft by umquhil Alexander Stewart her Husband in Liferent in an Annualrent of 40. pound yearly out of the Lands of Laâellethem she in Anno 1657. obtained a Decreet of Poinding of the Ground and the Tennents having Suspended on multiply Poinding calling her and James Watson and others wherein she is preferred in Anno 1666. to her Annualrent for all years bygone and in time coming In which ãâã of multiple Poinding Watson was absent Watson making use of the names of the Tennents does raise a second Suspension Anno 1668. wherein he is called on the one part and the said Agnes Simpson on the other part which now coming to be Discust it was alleadged for the said Iames Watson that the Decreet of multiple Poinding against him being in absence he ought now to be heard upon his Right which is a publick Infeftment long before the Liferenters base Infeftment or before it was cled with Possession It was answered that by the express Act of Parliament anent double Poindings It is Declared that where parties are called and compear not but intent Reduction of the Decreet that they shall never be heard against the Decreet or what the obtainer thereof has uplifted unlesâ they shew a sufficient Cause
upon this Bond so unwarrantably filled up The Lords found the Declarator Relevant and Proven and therefore Decerned the said Bond null reserving Action against Kinghorn upon any Debt due by Kinghorn to Keith as accords Tutor of Colzean contra The nearest of Kin of the Pupil February 5. 1670. THe Tutor of Colzean having cited the nearest of Kin of his Pupil to hear and see it found and declared that the Pupils Lands were set too high and could not be keeped at these Rates and that the Tennents were in Arreir before his Tutory in great Sums which if he should exact would cast the Land waste and that it was for the good of the Pupil to set the Land at lower Rates which it might be able to pay and to quite so much of the Arreirs as the Tennents might pay the rest and be able to continue and Possess There being no compearance the Lords gave Commission to certain Gentlemen in the Countrey to Examine the Rate of the Land and the conditions of the Tennents who have reported several of the Rooms to be too high set and what ought to be given down and what behoved to be quite to each Tennent that was deep in Arreir to inable him to pay the rest and Lâbour the Ground The Lords approved the Report with these Qualifications First That the Tutor should Discharge nothing simply but only till the Pupillarity were past that himself and Curators might then proceed as they saw Cause and that the Tutor before any Abatement of the Rooms should cause make Intimation at the Mercat Cross of the Jurisdiction and at the Paroch Church that such Lands were to be set at such a place such a day and whoever bade most for them being sufficient Tennents should have them and that at the said day if a better Rate were not gotten the Tutor might then or thereafter set at the Rates contained in the Commission Daniel Cathcart contra Mccorquodail and Mr. Iames Mirk February 8. 1670. Mccorquodail having Married the Daughter of Mr. James Mirk he and the Barron of Mccorquodail his Brother are obliged to pay yearly 600. merks to the Wife after the Husbands Death and Mr. James Mirk is obliged to pay to Mccorquodail 7000. merks of Tocher Mccorquodail being Debitor to Daniel Cathcart Writer in Edinburgh in 600. merks He arrests the Tocher in Mirks hands and pursues to make forthcoming and for instructing produces the foresaid Contract of Marriage It was alleadged for Mirk that he is not obliged to pay or make furthcoming the Tocher unless his Daughter were secured in her Jointer for the Tocher and Jointer being the mutual causes of the Contract neither Mccorquodail nor any deriving Right from him by Assignation or Arrestment can demand the Tocher till they secure the Jointer and that exception is Relevant both against Mccorquodail and his Assignies It was answered for the Pursuer that if it had been provided by the Contract that the Tocher should have been employed for the Wifes security the Defense had been Relevant or there might be some pretence if there were an obligement upon the Husband to secure the Wife in Land or Annualrent for 600. Merks But the Contracters having agreed for no security for the future but having agreed upon a Personal security viz. of the Husband and his Brother the Husbands part of the Contract is performed and the Husband is no ways Creditor till his Death Which the Lords found Relevant and in respect of the conception of the Contract as aforesaid Repelled the Defense and Decerned Iohn Scot contra Alexander Cheisly and David Thomson February 9. 1670. IOhn Scot pursues a Declarator of Circumvention against Alexander Cheisly and David Thomson bearing that Alexander Cheisly having a Processe against the Magistrats of Glasgow for alleadged hindering the Executing of a Decreet and imprisoning him and being in an evil Condition in his Means he proposed to the said Iohn Scot his Good-brother that he must make use of his Name as Assigney to that Process lest his Creditors might affect any thing that might be obtained thereby and that Iohn Scot should give a Back-bond declaring that his Name was put in the Assignation upon Trust. In stead of which Back-bond he caused draw up a Bond bearing that forsomuch as Alexander Cheisly had Assigned Iohn Scot to a Process against the Town of Glasgow therefore and for other good Causes and Considerations Iohn Scot obliges him to pay to a blank Person 3850. Merks in which Bond Alexânder Cheisly filled up David Thomsons Name and which Bond was obtained by Alexander Cheisly by gross Circumvention upon the absolute Trust the said Iohn Scot reposed upon the said Alexander for clearing whereof he condescends on these Points viz. that the said Iohn Scot was Goodbrother to the said Alexander Cheisly had been his Prentice and the said Alexander was his Curator and the said Iohn Scot is known to be a simple Person and the said Alexander Cheisly to be a subtile Person ready to take advantage Likeas it is evident that he did take advantage of the said Iohn Scot about that same time pretending that he was more able to act Iohn Scots Affairs then himself he procured Assignation from Iohn Scot to Bonds of twenty eight thousand Merks and put in the Assignationâ Clause of absolute Warrandice albeit by a Back-bond of the same Date it be clear that the Assignation was only granted for Love and Favour and for Agenting the Matter and that the one half should belong to Cheisly for his pains and the other to Scot but prejudice to Scots obligements in the Assignation which could be no other but the Warrandice whereby albeit Cheisly knew that a part of the Debts were payed to Scots Father and a part was insolvent and that Scot who was Assigney by his Mother as Executrix had no more himself but Warrandice from her Deed yet by the absolute Warrandice he intended to be sure of the one half of the Sums although it s known that hardly the half will be recovered whereby Cheisly should have all and Scot who freely granted the Assignation should have nothing but less than nothing by being obliged to make up the half though so much were not recovered of the whole 2dly All the pretence of the Plea against Glasgow could never amount to 3850. Merks yet the Bond is conceived for absolute payment of that Sum albeit it was a meer Plea depending many years and Debated without success 3dly Cheisly himself did ever keep the Process and Assignation and did transact the Plea or a great part thereof with the Magistrats of Glasgow and got payment In this pursuit there was no Compearance for Cheisly but it was alleadged for David Thomson that whatever had past betwixt Cheisly and Scot no ground of Circumvention betwixt them could be Relevant to take away his Right who seeing the blank Bond filled up with his Name by Cheisly before it was brought to him and given to him for
having Fraughted a Ship belonging to Bailly Guthry in Dundee to carry a Loadning of Wheat and Oats from Athol to Leith the Skipper did put in by the way at Dundee and there the Ship received a Crush by another Ship whereby the Salt-water entered amongst the Victual and thereupon the Owners and Skipper caused Disloaden the Victual and put it up in Lofts and Bailly Guthry the next day after the Crush gave notice to Robert Lesly in Dundee Lauchlens Correspondent and who made the Bargain for him to make it known to Lauchlen what had befallen the Ship and Loadning who within two dayes after came to Dundee and was required to Receive the Victual which he refused and by the Probation adduced in this Cause it was found that it was the Skippers Fault that he had put in to Dundee and so he and the Owners were found lyable for the damnage and interest of the Merchants and that the Merchants should be only obliged to take back that Part of the Victual that was unspoiled and the Owners should be lyable for the Price of the whole as it would have given at Leith if the Skipper had keeped his Course deducing the Price of the sufficient Victual as it now gives and a Commission being granted to certain Persons in Dundee to visit the Victual and to see what condition it was in they reported that 36. Bolls of it was sufficient Mercatable Wheat and that the Oats was damnisied in 20 Shilling the Boll and as to the rest two reported that it would yet be Brisket for Ships or Houshold Servants and two reported that it was spoiled but spake nothing further The question arose to the Lords upon the Commission at the Advising thereof whether the Owners and Skipper should be lyable for the damnage that was done before the Advertisement given to the Merchant or for the damnage that ensued thereafter because the Victual being laid together without separating the wet from the dry had het and spoiled thereafter and if it had been separat at first the damnage would have been very litle and so the question was whether the Owners and Skipper were obliged to have separat the wet from the dry and so to have offered it to the Merchant or if the offer in general to the Merchant to receive the Victual was sufficient though he did not desire them to separat the wet from the dry or that they did not offer satisfaction or security for the damnage of what was wet The Lords found that seing the damnage had fallen after and through the occasion of the Skippers delay he and the Owners were obliged to separat the wet from the dry and to have used diligence to prevent future damnage wherein having failzied they found them lyable for the whole damnage both before and after the offer the next question arose was whether the Skipper and Owners were obliged to take the spoiled Victual and pay the Price thereof as if it had been sufficient or if the Merchant was obliged to take it and the Owners to make up the damnage The Lords found that seing the Victual remained yet in specie and was not wholly Corrupted but by the report appeared to be useful for Ship Brisket and seing the property thereof still remained in the Merchant and the Owners were only lyable for damnage They ordained the Merchants to Receive the wet Victual and gave Commission to the same Persons to report what it was worse then the Price it would have given at Leith if the Voyage had held The Countesse of Cassills contra The Earl of Cassills February 22. 1670. BY Contract of Marriage betwixt the Deceast Earl of Cassills and his Lady he is obliged to Infeft her in certain Lands with absolute Warrandice and obliges him that the Lands did pay then and several years before 6000. Merks of yearly Rent beside Kanes and Customs and over and above Teinds and Feu-duties and if it shall please the Lady within six Moneths after the Earls Death rather to choise six thousand Merks of free Rent then to retain the Possession of the Land and to give a Tack to his Heirs and Successors of the Liferent-lands Then and in that case he obliges his Heirs and Successors to pay her 6000. Merks yearly Therefore the Countesse has made it in her option and offers to take and Pursues the Earl her Son to pay yearly the said Sum of six thousand Merks of free Rent who alleadged that albeit that Clause be mentioned to be free Rent yet he must have allowance of Cess Maintainance and other publick Burdens because by free Rent can only be understood free of Teinds and Feu-duties in respect that this being a Tack-duty for the Liferent-lands the Lady thereby can be no further free then if she enjoyed the whole Lands which the Earl is only obliged to make worth 6000. Merks of yearly Rent over and above Teind and Feu-duty but neither does it bear generally of free Rent much less of publick Burdens and therefore the subsequent Clause for the Tack-duty albeit it bear free Rent yet it can only be understood to be free of Teind and Feu-duty and not to be free of publick Burden which is further cleared by the Act of Parliament 1646. Ordaining all Liferenters to hear proportional Burden for any Annualrent or Tack-duty belonging to them in Liferent unlesse they were expresly freed of Maintainance It was answered for the Countess that she oppones the Clause of her Contract bearing free Rent without âânitation and Contracts of Marriage are to be extended in favours of Women and as to the Act 1646. the same is Repealed and not Revived again The Lords found that by the Contract of Marriage the Countesse was noâ free of Cesse and Maintainance which were the only Points at Inââââcutor But if any Debate arose concerning the ordinarâ Taxation or the Outrikes or allowance to Militia Horse the Lords would hear the Parties thereanent and accordingly the next day found the Clause did free my Lady of the ordinar Taxation Militia and so much of the Cesse as the Tennents of the Lands payed to my Lord. Murray of Achtertire contra Sir Iohn Drummond Eodem die THe Deceast Earl of Tulliâairn having Wodset the Lands of Logy-Almond to William Murray of âchtertire by a Contract of Wodset in February 1656. by which the Earl Assigns Achtertire to the Mails and Duties of the Lands due for the Cropt 1656. at Whitsunday or Martimess or any other Term and obliges him to Deliver to him the Keyes of the House and to enter him in the Possession at Whitsunday 1656. The Earl having Sold the Lands to Sir Iohn Drummond whose entry was to be at Whitsunday 1668. and having used an order of Redemption in the Earls Name because the Reversion did not extend to the Earls Assignies and having obtained Declarator Decerning Achtertire to denude himself of the Lands who in obedience of the Decreet grants a Renunciation Reserving to himself the
a perpetual Friendship In Contemplation of which Marriage the said Iames Raith and Mr. Iames Raith his Son were obliged to pay 10000. pounds of portion to Wolmet himself and to lend another Sum for Redeeming of a Wodset upon the Estate which being done Wolmet was obliged to Infeft his Son and to provide eight hundreth merks of Joynture to his Good-daughter Raiths Eldest Daughter Dies and the said Iames Edmistoun Wolmets Eldest Son Marries Raiths second Daughter but there was no Contract or consent of her Parents and they having lived seven years together James Died without Children and Raiths third Daughter is Married to John Wauchop Niddries Son and Raiths Estate provided to her whereupon they to liberate Raiths Heirs and Estate of the 10000. pounds contained in the Contract raised Declarator that the minute was null and void in two Grounds First Because there was no Marriage following by consent of the Parents conform to the Minute 2dly Because Raiths obligement to pay the Tocher was to Wolmet himself and for his mutual obligement of Infefting his Son and providing a Joynture which neither was nor can be done Major Bigger now standing in the full Right of Wolmets Estate and no Person to Represent Wolmet The Defenders alleadged absolvitor from the first Ground because there was a Marriage conform to the Minute and albeit Raith did not consent yet being obliged he had no just Ground to disassent And to the second Ground seing there was no Clause irritant in the Minute albeit the obligements therein were mutual Causes each of other it might be Declared that neither Party should be obliged to fulfil till the other fulfilled their part but could not annul the Minute The Lords found that seing Wolmet was in no capacity to perform his part that the Heirs and Estate of Raith were free of their part providing that the Pursuer who is Assigney to the Liferent Right of the said Iames Edmonstoun his Wife should Discharge the said Liferent and declare that it should never burden Wolmets Heirs or Estate Beation of Bandoch contra Ogilbie of Martoun Eodem die BEaiton of Bandoch having a Miln upon a Burn running by the Lands of Greendykes and Martoun the Tennents of these Lands did by Sheuchs and Casts divert the Water and therewith watered their Ground which thereafter returned to the Burn before it came to Bandochs Dam. Bandoch pursues a Declarator that he and his Predecessors and Authors having been in immemorial Possession of the Miln and having had the free use of the Burn until of late the Tennents of Greendyke and Martoun have diverted the same to water their Ground whereby so much thereof is drunk up by the Ground that there remains not Water sufficient for his Miln In this Process the Lords having before answer allowed Witnesses to be adduced on either part It was proven that Bandoch was in Possession of the Miln with the free use of the Burn these threescore years and that it was commonly known that he and his Predecessors had been in immemorial Possession thereof till the diversion It was also proven that the Tennents of Greendykes had been fourty years in use to water their Ground as now they do It was also proven that the Tennents of Martoun have been in use to water their Ground this 34 or 35. years whereupon it occurred to the Lords to consider whether the watering of the Ground being the most natural and ordinar effect of Burns and Waters the building of a Miln beneath could hinder that liberty or at least if 34. years Possession were not sufficient to continue the watering The Lords did not consider what effect the building of a Miln with a short possession of the Water free of diversion would hinder the Heretors from diverting the Water from watering their Ground but finding that the ancient and immemorial Possession of this Miln and full injoyment of the Water was as much proven as could be known to preceed the 34. years during which the diversions upon the Lands of Martoun was proven they found that the Miln and her priviledge being once so Constitute no less then 40. years peaceable Possession of diverting the Water for watering was sufficient that being the only legal Term and therefore allowed the Lands of Greendykes to continue the watering but discharged the Lands of Martoun to continue the same Sir Alexander Hume contra The Earl of Hume July 14. 1670. THe Right of the Erected Barony of Coldinghame being derived from John Stuart of Coldinghame and Sir Alexander Hume younger of Rentoun he pursues a Declarator against this Earl of Hume and the Creditors and Appryzers of the Estate of Hume to this effect that there being a Contract betwixt umquhil James Earl of Hume and Stuart and others whereby it was Declared that the Earl being Infeft in an Annualrent of 200. pounds Sterling out of the said Barony there was nineteen thousand pounds of bygons of the said Annualrent at the Date of the Contract in Anno 1631. Therefore it was agreed that the Earl of Hume should be put in Possession of the said Barony for payment of the said Annualrent for Terms subsequent and for the nineteen thousand Pounds made up of the bygone Annualrents fructibus non compurandis in sortem and that the Earl of Hume who last Deceased having Assignation to the said Contract from the Heirs of Line of the said umquhil James Earl of Hume recovered a Decreet of Possession upon the said Contract in Anno 1643. and entered in Possession accordingly and that the said Annualrent of 200. pounds Sterling after the Decease of the said James Earl of Hume did cease being only provided to the Heirs-male of his Body which failzing c. that therefore the 200. pounds Sterling affecting the Barony in the first place and being free did satisfie the nineteen thousand pounds and freed the Barony thereof Compearance being made for the Earl of Hume and the Creditors who had Appryzed the Barony of Coldinghame It was alleadged that the Earls intromission was not to be ascribed to his Decreet of Possession in Anno 1648. because he had another anterior Title in his Person viz. A former Contract betwixt the Deceast James Earl of Hume and the Heretors of Coldinghame by which he was allowed to Possess till he were payed of 4000. pounds Sterling payable at four Terms for which or any of the Terms he was to enjoy without an accompt fructibus non imputandis in sortem of which Contract there was a thousand pound Sterling unpayed and upon which Contract Iames Earl of Hume had obtained Possession in Anno 1630. So that the late Earl having right to both these Contracts and Decreets from the Heirs of Line and having entred to the Possession without any Porcess of Removing or Mails and Duties against the Tennents but the former Possessors leaving the Possession the Earl entered without opposition and might ascribe his Possession to either of these Rights he pleased and does
the Contract may be yet Examined to clear the meaning of the Clause 2dly Albeit the Clause could not exclude her from a third of Money which is expresse therein yet not from a third of Moveable Goods and Geir which is not exprest and albeit the Clause bears and others it can only be understood of Rights due by a stated Security and the intent of the Clause has only been to substitute the Bairns of this Marriage Heirs of the Conquest and to exclude the Bairns of any other Marriage but did neither exclude the Father but that he might dispone on his Moveables albeit the Clause expresseth him but Liferenter thereof neither does it exclude the Mother from the third thereof And there was adduced a Decision in the Case of the Lady Oxenfoord wherein albeit by her Contract of Marriage she accepted certain Lands in full satisfaction of her Terce and third of all Lands Annualrents and others yet that was not found to exclude her from a third of Moveables but only from a Terce or third of Heretable Rights It was answered for the Children that their Mother having consented by the Contract of Marriage that all Conquest during the Marriage should be provided to their Father in Liferent and to them in Fee she had excluded her self as clearly and effectually as if she had Renunced her third thereof or accepted of her Jointer in full satisfaction neither is there a necessity that these words must always be used nor is this alleadged as a consequential Renunciation but as an expresse Obligation or Destination of the Husband consented to by the Wife which must have its native effect and so the Children must be Feears of the whole Conquest and therefore the Wife cannot be Feear of a third of it and albeit moveable Geir be not exprest the generality others must necessarily comprehend them being of the same nature with Sums which are exprest and may be Moveable and of less importance then they and the case wholly differs from that of the Lady Oxenfoord wherein nothing but Heretable Rights are exprest and it is an unaccustomed Clause amongst Persons of that quality to exclude Ladies from a third of Moveables but here Sums are exprest and it is most ordinar for Merchants to exclude their Wives from their Merchant Goods which is the greatest part of their Estate as to the meaning of the Parties clear Clauses cannot be enervat upon that ground and as for any thing exprest by the Husband It was on Death-bed in a great Fever whereof he Died and no Testament followed The Lords found that the foresaid Clause in the Contract did exclude the Relict from a Terce of Moveable Sums or Moveable Goods during the Marriage which could be understood to be meaned to be put upon Security at any time but that it did not exclude her from a third of the Houshold Plenishing Charles Casse contra Sir Robert Cunningham Ianuary 26. 1671. CHarles Casse having Sold to Sir Robert Cunningham his Right to the Lands of Achinhervy in his Minority pursues a Reduction of the same Disposition upon Lesion and condescends upon his Lesion thus that being Infeft for security of fourty thousand Merks and in an Annualrent effeirrand thereto whereof there were many bygone years Annualrent resting and yet he got only fourty thousand Merks for all The Defender alleadged Absolvitor because the Pursuer was satisfied of all his bygone Annualrents in so far as he having Apprized for five years Annualrents preceeding the Apprizing which was in Anno 1655. he had entered in Possession by vertue of the said Apprizing of the whole Lands of Achinhervie and so is Comptable therefore according to the Rental untill he cease to Possesse the same which will fully satisfie all his bygones so that he will have no Lesion 2dly He had not only in his Person the said Apprizing but the Infeftment of Annualrent upon which he being preferred in a double Poinding and excluding other Parties having also real Rights he is thereby obliged to do Diligence and be Comptable not only for what he intrometted with but for what he ought to have intrometted with The Pursuer answered that he was content to Compt for what he had Intrometted with but upon neither ground was he obliged to Compt for any further especially as to his Apprizing albeit Law and Custom had oblidged him to Compt for the whole Rental till the Apprizing were satisfied yet he could not be Comptable but for his Intromission after he was satisfiedâ for then he had no title in his Person and it is clear that any Intrometter without a title is only lyable for his Intromission and all Parties having Interest might have hindred him to have Intrometted after he was satisfied and albeit a Tennent or Factor after the expiring of the Tack or Factory may be Comptable for a full Rental yet that is because they have a title per tacitam relocationem or tacitam commissionem but after the extinction of the Apprizing then no title remains and neither is he lyable as an Annualrenter even though he did exclude others to do any Diligence because all the effect of an Annualrent can only be to distresse the Ground or Poind the Tennents for as much of their Rent as is equivalent to the current Annualrents after which any other Party having Right may liât the superplus and in this case the Annualrenter hath not been preferred as to any bygone Rents but only in timecoming and for his current Annualrents and the bygones are appointed to be brought in Accompt which was never determined The Defender answered that it were against all Reason that an Apprizer after he is satisfied should be in better condition then before he is satisfied and so as long as he meddles he must Compt by the Rental and it is his proper part who knows when he is satisfied to relinquish the Possession which other Parties cannot know till by a long Process of Compt and Reckoning it be determined and it were most absurd that in the mean time he should continue in Possession and though the Rents did in a great part perish he should not be Comptable therefore but only for what he actually lifted The Lords found the Pursuer as Apprizer Comptable according to the Rental not only for Intromission but Omission both till the Apprizing be satisfied and thereafter for all years of which he lifted any part but found not the Annualrenter lyable for Diligence albeit he did exclude others but the Case came not to be Determined if the Annualrenter had by a Personal Action insisted for more years Annualrent past to be preferred to the whole Rents till these bygones were satisfied that not being the case here in question In this Cause it had been formerly alleadged that the Pursuer after his Majority had Received a part of the price of the Lands in so far as having in his Minority granted a Commission to Mr. Iohn Smith one of his Curators
same to her in Liferent for her Liferent use only and after her Decease to William Mauld her Son and his Heirs and another Bond bearing him to have Received from the Relict a thousand Merks in name of Henry Mauld her Son and obliging him to pay to the said Henry and his Heirs and after all he granted a Bond of ten thousand Merks to the Relict her Heirs and Assigneys which was made up of what remained due of all the three this Bond the Relict Assigned to the Laird of Touch who having Charged Ardrosse and he having Suspended there arose a Competition betwixt Touch as Assigney and Agnes Dundasse as Heir and Executrix to Mr. Henry William and Henry Maulds and thereupon a division of the Sums betwixt the Parties thereafter Agnes Dundasse pursues Ardrosse to make payment to her as Heir and Executrix to William and Henry Maulds of two thousand Merks which he was Addebted to the said William and of one thousand he was Addebted to the said Henry Whereupon he hath Deponed that he was Debitor by all the saids Bonds before related and no otherways and that in the former Decreet by mistake it was exprest that the ten thousand Merks Bond was made up of the eight thousand Merks Bond and of two thousand Merks of Annualrent thereof whereas the truth was it was made up by what was resting of the two Bonds due to William and Henry which he produced cancelled of the Tenor foresaid It was alleadged for Agnes Dundasse that the Sums of these Bonds behoved only to belong to her as Heir and Executrix to William and Henry Maulds and not to Touch as Assigney by the Relict It was answered First That the said Agnes had Homologat the prior Decreet and division therein made by giving Discharges accordingly could not claim any more 2dly Another having taken a Bond in the Name of her two Sons being Bairns in her Family might lawfully alter the same at her pleasure there being nothing more ordinar then that Fathers gives Bonds of Provision to their Children or takes Bonds from their Creditors in their Names yet these being never Delivered the Parents may Dispose of them at their pleasure It was answered for the Executrix that the alleadgeance of Homologation is not Relevant because it is Emergent by Ardrosse his Oath that the ten thousand merks Bond was not made up by the Annualrent but by the said two Bonds so that there could be no Homologation of that whereof the Executrix was excusably ignorant To the second That albeit Fathers granting Bonds of Provision in Name of their Children may alter the same at any time before Delivery Yet where they lend out the Sum to a Creditor and take him obliged to a Child in Fee that cannot be âltered especially where the Parent is naked Liferenter and hath not reserved a power to lift and Dispone but whatsoever be in the case of a Father providing his Children who can by no presumption be thought to have any Means yet after the Fathers Death a Mother taking a Bond in the Name of a Bairn it must be presumed to be the Bairnâ Money coming by the Father or otherwise and the Mother having stated her self naked Liferentrix in the one Bond and having no interest in the other Bond she could not recal or alter the same in prejudice of the Children especially seing they were Infants and had not Tutors to care for them It was answered that the Mother had held count for the whole Means of the Father and so had cleared any presumption that thir Boââs could be of his Means but she Liferented the whole Estate and made up thir Bonds out of the Rents and Annualrents and denyed to be Tutrix or Pro-tutrix so that the Money being freely her own and her Children having died before her she might warrantably alter the Bond. The Lords found that the Mother could not alter the Bonds taken in favours of her Children from a Debitor being of the Tenors above-written wherein she was naked Liferenter of the one and had not so much as a Liferent of the other and that the Sums were rather presumed to be of the Bairns Means then her own seing they had no Tutor and any medling with their Means was by her self and that their Executrix could not now be put to instruct what Means they had or be countable thereupon Iohn Armour contra Iames Lands February 21. 1671. IOhn Armour pursues his Tennents of some Tenements in Edinburgh for Meals and Duties Compearance is made for Iames Lands who produces a Bond granted by umquhil George Armour bearing that George Armour as Tutor Testamentar to Iohn Armour had borrowed 500. merks from Iames Lands and obliges him his Heirs Executors and Assigneys to repay the same and thereby sets some of the saids Tenements to Iames Lands ay and while he be satisfied of the 500. merks and thereupon alleadges he must be preferred to the Mails and Duties till he be payed It was answered this Bond and Tack were not sufficient in respect he does not bind himself as Tutor nor the Pupil but his own Executor and Assigneys and so it must be the Tutors own Debt 2dly This Debt cannot burden the Pupil simply upon the Assertion of the Tutor but the Creditor ought to have seen the Sum applyed to the Pupils use and therefore must yet alleadge in rem versam Otherways if the naked Assertion of Tutors may burden the Pupils when they borrow their Name it is a patent way to destroy all Pupils Tutors being oftimes insolvent 3dly The Tutor could not set a Tack of the Pupils Lands Longer than he had Interest as Tutor Ita est the Tutory is ceassed by the Tutors Death The Lords found that this Creditor behoved to instruct the Sum applyed to the Pupils behove which being proven they Sustained the Tack Alexander Pitââirn contra February 22. 1671. ALexander Pitcairn having Right by progress to a Wodset granted by Iames Kininmouth to Mr. Iames Gordoun and by him Disponed to Sir Archibald Sydserf and by him to the Pursuer pursues the Tennents for Mails and Duties who alleadged that Gordoun or Sydserf were satisfied by intromission with the Rents for which they were comptable It was Replyed that Sir Archibald Sydserf had obtained Declarator of the expyring of the Reversion and was neither Countable nor Redeemable and for proving thereof produced the Decreet of Declarator in Anno 1637. against which it was objected that it was null because albeit the Libel was upon a Clause irritant whereby it is provided if the Money were required and not payed within such a time the Reversion should expire yet at the Compearance and Production there is no mention thereof albeit at the Conclusion the Decreet bears because the Libel was sufficiently proven by Production of the Writs aforesaid which can be only understood of the Writs in the Production and it is not enough only that they were libelled upon for in all Decreets the
whole production is specially insert It was answered that the Requisition was truly produced and that the omission of the Clerk to repeat it in the Production cannot annul the Decreet after so long a time without a Reduction thereof It was answered that albeit in favorabilibus the Lords may supply Defects upon Production ex post facto yet in odiosis such as Clauses irritant of Reversions the Lords ought not to admit the same The Lords found the Decreet of Declarator null Sir David Dumbar of Baldoun contra David Dick and others February 22. 1671. BAldoun pursues âhe Tennents of Bombie for Mails and Duties Compearance is made for David Dick who produced an Apprizing of the saids Lands against the Lord Kirkcudbright within year and day of the Pursuers Appryzing and craves to come in pari passu with the Pursuer conform to the Act 1661. anent Creditor and Debitor It was answered that by the same Act it is provided that where Comprizings are acquired by the appearand Heir or to his behove that the same should be satisfiable for such Sums as the appearand Heir payed and offers to satisfie the same It was answered that albeit the Act doth so provide as to the Estate that might belong to the appearand Heir it can extend no further But this Appryzing is not only of the Estate of Orchartoun but of the Estate of Kirkcudbright wherein Sir Robert Maxwel appearand Heir of Orchartoun hath no interest the Appryzing must be valide as to that It was answered that Kirkcudbright was but Cautioner for Orchartoun and that the Act bears that such Appryzings shall be satisfied by what the appearand Heir payed and such Appryzings being satisfied it is simply extinct and can have no effect Which the Lords found Relevant and seing David Dicks Appryzing is Assigned to Sir Roberts own Brother the Lords allowed Witnesses ex officio to be adduced for proving that it was for Sir Roberts behove William Gordoun contra Sir Alexander Mcculloch Eodem die WIlliam Gordoun pursues Sir Alexander Mcculloch for Spuilzying of certain Corns Who alleadged Absolvitor because the Defender having right by Appryzing to the Lands whereon the Corns grew did warn the Pursuer and obtained Decreet of Removing against him and thereupon dispossessed him and finding the Cropt upon the Ground he might lawfully intromet therewith nam sata cedunt solo especially where the Sower is in mala fide but here he was in Violence after a Warning and did continue to Sow after Decreet of Removing yea a part was Sown after he was Dispossessed by Letters of Ejection The Pursuer answered that by the Law and Custom of Scotland the Cropt of Corns or industrial Fruits are never accounted as pars soli or any accessory but are still moveable even when they are growing so that they belong not to the Heir but to the Executor and in case of a Disposition without mention of the Cropt albeit the Acquirer were Infeft after they were Sown and upon the Ground he would not have Right thereto neither doth mala fides or violent Possession alter the case for which the Law hath provided a special Remeid viz. the violent Profits but it can be no ground to meddle with the Parties Cropt brevi manu as accessory to the Ground for then the Parties should both lose the Cropt as pars soli and be lyable to the violent profits neither is there any Ground from the Warning nor yet from the Decreet of Removing which was Suspended before it attained full effect and the Defender continued in Possession of a House upon the Ground albeit he was put out of the principal House It was answered that the Decreet had attained full effect before the Suspension all the Pursuers Goods being off the Ground and he out of the Mansion-house wherein the Defender entered and brought all his Goods upon the Ground and though the Pursuers Mother being a valitudinary impotent Woman was suffered to remain in a Coat-house and the Pursuer with her upon that account that imports no continuance of Possession of the Land The Lords Repelled the Defense as to that part of the Cropt that was Sowen before the Appryzer entered by the Letters of Possession reserving to him the violent Profits for that time But found the Defense Relevant as to what the Pursuer did after the Defenders Dispossession and found the Defender only lyable for the Expences of the Labouring and the Seed as being eatenus Locupletior factus Lord Iustice Clerk contra Mr. Iohn Fairholm February 23. 1671. THe Earl of Levin being Debitor to Lambertoun in fourty thousand merks and having Infeft him in an Annualrent out of his Lands in security thereof Mr. Iohn Fairholm did upon a Debt due by Lambertoun Appryze the foresaid Heretable Bond and Annualrent which was holden of the Earl of Levin himself who was Charged upon the Appryzing but unwarrantably to Infeft Fairholm in the Lands whereas the Annual rent only was Appryzed and the Charge should have been to Infeft Fairholm in the Annualrent thereafter Fairholm did Arrest the bygone Annualrents in the Earl of Levins hands and after all did upon a Decreet against Lambertoun arrest the bygone Rents in Levins hand and Lambertouns Liferent of the Annualrent having fallen by his being year and day at the Horn the Justice Clerk as Donator to the Liferent and as Arrester competing with Fairholm did alleadge that Fairholms Appryzing being an incompleat Diligence and no Infeftment nor valide Charge thereon and having lyen over so many years the Arrester must be preferred for which he adduced a Practique observed by Dury the 14. of February 1623. Salicots contra Brown where it was so found and albeit Fairholm be the prior Arrester yet he hath done no Diligence upon his Arrestment whereas the Justice Clerk hath obtained Decreet and as Donator to the Liferent Escheat he is preferable for years after the Rebellion because the Liferent Escheat falling before any Infeftment or Charge on the Appryzing which was not used within year and day the Liferent excludes the Appryzer The Lords found the Appryzing preferable to the posterior Arrestment though no legal Diligence was done thereon for the space of nine years thereafter in respect the Appryzing being a Judicial Assignation required no Intimation and being prior it is preferable and they did not respect that single Practique the constant Custom since being contrary But found the Liferent Escheat preferable to the anterior Appryzing being without Infeftment or Charge as to the years after the Rebellion and preferred the Appryzer as to years preceeding Arnold of Barncaple contra Gordoun of Holm Eodem die THere being four Cautioners in a Bond and the principal Debitor having Suspended and found a Cautioner in the Suspension who having been Distressed and payed the Debt and having gotten Assignation from the Creditor Charges one of the Cautioners in the first Bond Gordoun of Holm who Suspends on this Reason that payment being made by the
alleadged that the Cause having lyen over several years must be wakened It was answered that there being a Decreet pronunced there was no more Process depending and so needed not be wakend It was answered that a Decreet though pronunced not being conditional to a day but being absolute and thereafter stopped in respect the stop takes off the Decreet the Process is in statu quo prius It was answered that the stop doth not recal the Decreet but only hinders the Extract thereof till the Supplicant be further heard and it is his part to insist in the Bill and that it would be of very evil consequence if stopped Decreets were recalled for then not only wakening would be necessar but in case the Parties should Die Transferance should be raised and seing wakenings are not requisite in concluded Causes much less after Sentence is pronunced The Lords found no necessity of wakening but allowed the Defender to propone what further he had to alleadge Laird of Balfour contra Mr. William Dowglasse Iuly 4. 1671. THe Earl of Airlies Estate being Apprized by Mr. William Dowglasse since 1652. after the Legal was expired Mr. William was Infeft and after his Infeftment the Laird of Balfour Apprized the same Land and thereupon pursues the Tennents for Mails and Duties It was alleadged for the first Apprizer that he must be preferred First Because he has the only Right having an Apprizing expired and Infeftment thereon before the Pursuers Apprizing was Led so that eo momento that he was Infeft upon his expired Apprizing the common Debitor was fully Denuded and there was no Right of Reversion or any other in his Person that could be Apprized thereafter It was answered that by the Act of Parliament 1661. between Debitor and Creditor It is provided that all Apprizings Led within year and day of the first effectual Apprizing shall come in therewith pari passu and therefore the Pursuer having Apprized within year and day after the first Apprizers Apprizing became effectual by Infeftment he must come in with him pari passu by the said Act which makes no difference of expired or unexpired Apprizings and by that same Act the Debitor is not so Denuded by the expiring of the Legal and Infeftment but that year and day is still allowed to subsequent Apprizers which in effect is a prorogation of the Legal as to Concreditors It was answered that the Act of Parliament is opponed bearing that Apprizings before or within year and day after the first effective Apprizing shall come in pari passu as if one Apprizing had been Led for all which necessarly imports the calculation of the year to be from the date of the first effective Comprizing and not from the date of the Infeftment or Diligence for the coming in as if one Apprizing had been for all must relate to the Decreet of Apprizing which as it is clear by the Letter of the Statute so also by the Narrative and Motive thereof bearing that Creditors did not know the condition of their Debitors Estate which might be Apprized before they could do Diligence whereas before they had only the benefit of Reversion for remeed whereof the Parliament brings in all Apprizings that are before or within a year after the first effectual Apprizing which before would have carried the sole Propertâ and factione juris states all these Apprizings as Led in one day so that the remeed is sufficient by having a full year after the date of the Apprizing and Correctory Statutes are to be strictly Interpret and if the date of the Diligence be the Rule an Apprizing after twenty year might be brought to admit a new one deduced after all that time and not only so but the Mails and Duties would belong proportionally to the last Apprizer for twenty years before it was Led It was answered that the year indulged by this Act of Parliament to Concreditors must be from the time the Apprizing is effectual for the words of the Statute bears all Apprizings before or within a year after the first effectual Comprizing c. so that the year must not run from its being an Apprizing but from its being an effectual Comprizing and so from the Infeftment or Diligence neither is the inconvenience shunned otherwise for the only way then known for publication of real Rights was the Register of Seisings and not the Register of the Allowance of Apprizings which is only made necessar by an Act since and it is very easie to make simulate executions of Apprizings by taking away the Copies of Denunciation of the Ground and Citation at the dwelling House of the Debitor but if once a Seising be in the Register all provident men take notice thereof and albeit a Charge be sufficient in stead of a Seising which is not Registrat yet the ordinar way of compleating Apprizings which the Law notices is Infeftment and seing Apprizings are now rigorous Rights carrying any Estate without consideration of the value Acts Correctory of them ought to be extended ex aequo and the more wayes Concreditors have for getting notice of the Apprizing of their Debitors Estate the better neither are the evil consequences upon the other hand of any moment it being the first Apprizers fault if not his fraud that he obtains not Infeftment or does Diligence therefore for he may of purpose lye dormant not only till year and day run but untill the Legal expire and thereby cut off the Diligences of all other Creditors as in this very case the irredeemable Right of an Earldom shall be carried for 1500. pounds and all the other Creditors excluded so that the Apprizing is so far from making the case better that it makes it much worse as latent and fraudulent for it cannot be imagined that if the second Apprizer had known that the first Apprizing was Led but that he would have used Diligence within the year at least within the Legal for so soon as he saw a Seising in the Register he did immediatly Apprize The Lords preferred the first Apprizer and excluded the second and found that the year is to be reckoned from the date of the first effectual Apprizing and not from the Diligence whereby it becomes effectual In this Process the Lords Sustained this Reply that the first Apprizing was to the behove of the common Debitor or his eldest Son and that they would purge the same by payment of what Sums were truly payed for it to the Apprizer according to the said Act of Parliament 1661. without any Reduction or Declarator Helen Hume contra The Lord Iustice Clerk Eodem die THere being a Bond granted by the Laird of Rentoun to Helen Hume his Daughter obliging him and his Heirs to pay the Sum to her at her Age of ten years compleat with Annualrent so long as she should suffer the same unpayed and then subjoining this Clause that in case she should die unmarried the Bond should be void Whereupon the said Helen pursues the Lord
Reductions and Declarators against appearand Heirs not requiring a Charge to Enter Heir in respect the appearand Heir must therein except upon the Defuncts Rights and so behave as Heir Iune 27 1667. Dewar contra Paterson Annus deliberandi Excludeth Citations given within that year here the day of compearance was within the year Ibidem ANNVALRENT was not found due for sums of Money without paction albeit the Money was lent with this provision that failing Heirs of the Creditors body who was very old the Debitor should succeed December 11. 1662. Logiâ contra Logiâ Annualrent was found due after Horning albeit the Decreet being Susâended a part of it was taken away yet Annual was found due for the rest Ianuary 30. 1663. Rigg of Carberry contra his Creditors Annualrent was allowed without paction for a Portâon left by Legacy to the Defuncts natural Daughter the time of payment of which Legacy was her Marriage which being in her power The Lords would give no occasion to hasten the same but allowed Annualrent in the mean time Iune 25. 1664. Inglis contra Inglis Annualrent was not found due by a Father to his Son for a Legacy left to his Son by his Mothers Father and uplifted by the Father during the time he alimented his Son in his Family December 15. 1668. Windrham contra Eleis Annualrent promised for a time by a Letter was found due in all time thereafter Ianuary 13. 1669. Hume contra Seaton of Menzies Annual of Annual was not found due though expresly obliged to be payed by a Bond beaâing That after each Term the Annualrent if it were not payed should bear Annualrent with the principal which clause was found null and not in the same case with a Bond of Corroboration granted after Annualrents were due accumulating the same Ianuary 26. 1669. Lady Braid contra Eârl of Kingâorn APPRYZINGS were found not to be affected by a Bond or a Contract amongst the Appyzers to concur and communicat their Rights as to singular Successors seing the Contracters were then Infeft Iuly 1661. Taâlziâer contra Maxtoun An Apprizing led before the year 165â but no Infeftment thereon till after that year was found not to come in pari passu with posterior Apprizings Infeft or Charging after the Charge or Infeftment on the Appryzing before 1652. but it did exclude them wholly December 12. 1666. Sir Henry Hume contra Creditors of Kello An Apprizer was found Comptable âor his Intromission with such as he Entered in Possession of according to the Rental the Lands gave at his Entry with power to him to give up all defalcations in his Discharge and instruct the same Ianuary 4. 1662. Seaton contra Rosewall An Apprizer was excluded by a prior Infeftment though granted to the Creditors appearand Heir whereby he became Lucrative Successor after this Debt contracted but prejudice to purâue him personally or to Reduce on that Title Ianuary 6. 1662. Mansoun contra Bannerman of Elsick An Apprizer pursuing for Removing and Mails and Duties his pursuit was Sustained only as âo so much of the Apprized Lands as he should choose worth 8. per cent and to compt for the superplus more than his Annualrent and publict burdens excepting the Defenders House and Mains by the late Act of Parliament betwixt Debitor and Creditor Iune 27. 1662. Wilson contra Murray Apprizers Competing upon the late Act of Parliament bringing in Apprizings since 1652. pari passu was found not to exclude Apprizings before having obtained Infeftment since but that none could come in with him who was first Infeft and payed the Composition till they refounded their shares thereof Ianuary 24. 1663. Graham contra Ross. But also by the Tenor of the late Act the first Apprizers being Infeft in an Annualrent were found to have access to his Annualrent thogh there was no poinding of the ground February 5. 1663. Inter âosdem An Apprizer was found comptable for the Rents of the apprized Lands during the Debiâors Minority contrary the Act of Parliament 1621. Which was âmended in the late Act 1641. But in the late Act Rescâssory that was not Revived seing all private Rights by these Rescinded Acts. mâdio tempore were Reserved and this had been the Custom for twenty years February 18. 1663. Rosse contra Mckenzie Apprizers Competing the first Apprizer having given the first Charge on the Letters of âour Forms and before the dayes thereof were expired the Superiour Infefting a second Apprizer the Infeftment was found Collusive and the first Apprizer giving the âirst Charge and Infeft within a litle time after the second was preferred and the first Infeftment Reduced was still in Possession till now that the Legal was expired not only the bygone Fruits were his own but that he might Redeem within a year after this Sentence seing by the Taciâurnity of the Pursuer he was in bona fide to continue his Possession and not to doubt his own Right or Redeem a second Apprizer December 3. 1664. Laird of Clârkingtoun contra Laird of Corsbie An Apprizing within a year was excluded from coming in pari passu with a prior Apprizing in respect the prior Apprizer had before the Act betwixt Debitor and Creditor taken Right to a prior Apprizing without necessity to alleadge that he took the Right to shun the expiring of the Legal of that prior Apprizing or any other necessary Causâ December 9. 1664. Iohn Veatch younger of Dawick contra Alexander Williamson Apprizers Competing where the first Apprizer being Infeft would possess but a part the Debate being as to the rest betwixt the second Apprizer not Infeât and the third Infeft the Lords preferred the second as needing no Infeftment December 22. 1664. Doctor Ramsay and Hay contra Seatoun Apprizers come in pari passu not before the date of the late Act but from that time both Parties Sums should be accumulate and the Mails liâted proportâonally but prâceeding Mails should be imputed in payment of the Expence of the Apprizing Composition to the Superiour and then in payment of the principal Sums Ianuary 7. 1665. Grahame of Blackwood contra Browâs An Appriâing being to be led the present Hâritor and Possessors obtained assessors to be joyned to the Messenger that he might stop the Apprizing by production of his Inâeâtment âebruary 3. 1665. Sir Iohn Fletcher Supplicant An Apprizing ordained to be allowed and Registrat after the Debitors death and long after the sixty dayes were past from the Date of the Apprizing and that upon Supplication without Citation in respect it was found that the Apprizing Registrate Quandocuâque would be preferred to others not sooner or more orderly Registrate Iune â 1665. An Apprizer pursuing for Mails and Duties was excluded till he âatisfied the Superiour for a years Rent he being now ready to Recâive him albeit he âas Charged before and did not obey Iuly 22. 1665. Iohnstoun contra Tennents of Auchincorse An Apprizing being lost and a new Extract thereof being Subâcribed by the Clerk of the
Apprizing but not by the Messenger being produced as a Title in a Process the same was not Sustained without the Messengers Subscription or his Executions but the Party was remitted to prove the Tenor thereof December 1665. Mâculloch contra Craig An Apprizing was found to be satisfied by Intromâssion not only within the years but also within the three years added by the Act betwixt Debitor and Creditor though the Apprizing was led long before that Act Ianuary 20. 16â6 Clappertoun contra Laird of Torsonce Here it was also found that a part of the Lands Apprized being sold irredeâmably by the Apprizer were Redeemable within thrâe years and that the singular Successor was only comptable for the Rents thereof and not the Apprizer who had sold the same before the Act. An Apprizing led upon several Sums of one whereof the Term of payment was not come the Apprizing was âound null as to that Sum but whether it would be null in totum or whether it would be valide to carry the whole Right of the Lands as that Sum had never been in or if a proportional part of the Land effeiring to that Sum would be free of the Apprâizing the Lords decided not but were of different Iudgements February 16. 1666. Sharp of Houstoun contra Glen An Apprizing was found extinct as being satisfied by the Debitor and retired by him with a blank Assignation thereto lying by him at his death though his Son thereafter filled up his Name therein which was instructed partly by the Sons Oath which was found not sufficient to prove alone and partly by Witnesses ex officio one of which who proved most clearly was his Brother February 27. 1666. Creditors of the Lord Grây contra the Lord Gray An Apprizing on a Bond bearing a Sum to be payable without Requisition was found valide without either Requisition or Charge of Horning Iuly 21. 1666. Thomson contra Mâkitrick An Apprizing was found extinct as to a Party in whose favours the Apprizer granted a Back-bond bearing that the Apprizing should not be prejudicial to that Parties Right which was found Relevant against a singular Successor viz. The Kings Donator having right to the Apprizing by Foreâaulture Iuly 31. 1666. Earl of Southesk contra Marquess of Huntly An Apprizing was found satisfied within the Legal by Intromission and no part of the Martinmas Rent was ascribed to a Tercers Right not being served though she gave Tack to the Apprizer he having Entered on the Debitors Possession December 21. 1666. Zeaman contra Oââphant An Apprizing led against an appearand Heir as specially Charged to Enter Heir was preferred to the Infeftment âf the next apparent Heir after the Heir Charged his death or the Infeâtment of their singular Successor granted after the matter became Litigious albeit the Apprizer from the apparent Heir Charged was never Infeft nor Charged the Superiour upon the Appâizing neither was the apparent Heir himself Infeft but that the Superiour might be Chaâged at any time after the apparent Heirs death and albeit the next apparent Heirs could not Enter Heirs to the former apparent Heir Charged but to his Predecessor to the effect they might Reduce or Redeem the Apprizing led against the former apparent Heir February 6. 1668. Iohnstoun contra Erskin An Apprizing was found Redeemable from the eldest Son and apparent Heir of the Debitor within ten years for the sums he truly payed out by the Act of Parliament 1661. albeit his Father was living the time of this Process Iune 19. 1668. âurnet contra Nâsmith An Apprizer since 1652. pursuing the rest for his part of the Duties as coming in with them pari passu by the Act 1661. betwixt Debitor and Creditor his Apprizing was âound not to be effectual till the allowance thereof were Registrate conform to the late Act of the same Parliament anent Registration of allowances but that it required no determinate time to Registrate but whensoever Registrate it would be effectual as to all Rights not compleated before Registration Iuly 17. 1668. Steuart contra Murraââ An Apprizing on an Assignation to a Cautioner or for his behove Apprizing for the whole sum without deduction of that Cautioners part was not found null in totum but Restricted to the Sum truly due being within the Legal Iuly 22. 1668. Iohnstoun of Sheins contra Arnold An Apprizing and Infeftment thereon granted by the Exchequeâ of course without notice when the King by Forefaulture was imâediate Superiour was found not to supplie a Confirmation or to exclude the Donator of the Forefaulture pursuing a Removing on a posterior Gift December 9. 1668. Earl of Argile contra Stirling Apprizing with a Charge against the Superiour does not exclude the Liferent Escheat of the Vassal against whom the Apprizing was led without consideration whether the Superiour was in culpa by not obeying the Charge Iune 28. 1667. Dowglat contra Lisk An Apprizer having at several times Apprized on several Sums and Entered in possession by the first Apprizing before the secoâd was led was found to impute his whole Intromission to the first Apprizing that thereby it might be satisfied within the Legal The Apprizer was also found comptable for what sums he received for a part of the Lands sold by him within the Legal but for no greater price and a joynt probation was refused though it was in the Highlands the Apprizer offering to prove by Witnesses above exception and the Lords ordained both the Feears to be produced and the greatest prices to be proven that they might choose what Rate to âollow Ianuary 14. 1669. Mckenzie of Puglasâ contra Ross of Auchnacloich An Apprizing led against one Charged to Enter Heir who dying un-infeft his Sisters as Heirs to his Grand-Father to whom he was Charged to Enter Heir were âound to have the Right of Reversion of the Appriâing albeit they were not Heirs to their Brother who was Charged to Enter Heir but dyed un-infeft Ianuary 1â 1669. Iohnstoun contra Erskin Lord Lyon An Apprizer having Charged the Superior was found not thereby to become Vassal so as by his death the Lands would âall Waird but by the Death of the Party against whom the Apprizing was led unless the Apprizer when he Charged the Superior had presented a Chatter with an offer of Money and a Bond for what âurther the Lords should modifie for the years Rent and had put the Superior in culpa aut mora in not Infefting the Apprizer and that whether the Superior required the same or not February 9. 1669. Black Donator by the Duke of Hamilâoun contra French Vide Liferent Dowglas contra Lââk An Apprizing was found extinct by the Intromission of him to whom the Apprizer granted Back-bond declaring the Apprizing to be to his behove and that against a singular Successor who thereafter obtained Disposition and Inâeâtment upon the Apprizers Resignation Iuây 12. 1670. Kennedy contra Cuninghame and Wallace An Apprizing posterior was preferred to a prior Appriâing being less
formal and solemn according to the custom then in uâe the posterior being upon Denunciation at the Mercat Croâs of the Sheriffdom and the other at the Mercat Cross of the Regality when Regalities were supprest by the Vsurpers and was led at Glasgow Iuly 15. 1670. Lady Lucia Hamiltoun contra Boyâ of Pitcon An Apprizer was âound comptable for the whole Rents of the Lands he possest by his Apprizing both for his Ommission and Intromission and that not only till his Apprizing was satisfied but for all years subsequent that he continued to intromet with any part Ianuary 26. 1671. Cass contra Cunninghame An Apprizing coming in the person of the apparent Heir of the principal Debitor was âound extinct by satisfaction of the âums payed by the apparent Heir therefore summarly without Reduction not only as to the Estate of the apparent Heir but as to the Estate of a Cautioner âor that Debt which was also Apprized February 22. 1671. Dumbar of Baldoon contra Dick. An Apprizer of an Annualrent was preferred to an Arrester although there was no Diligence upon the Apprizing for nine years before the Arrestment and that there was no Infeftment or lawful Charge on the Apprâzing in respect it was a prior judicial Assignation requiring no Intimation February 23. 1671. Lord Iustice Clerk contra Fairholme Apprizings deduced since Ianuary 1652. within year and day of the first effectual Apprizing were found not to be compted by a year from the Infeftment or Charge by which the Apprizing becomes effectual but from the date of the first effectual Decreet of Apprizing by the Act 1661. betwixt Debitor and Creditor Which bears That all such Apprizings shall be as if one Apprizing had been led for the whole Iuly 4. 1671. Laird of Balfoure contra Dowglas An Apprizing was found satisfiable by Exception or Reply as being to the behove of the Debitor or his eldest Son for the sums that were truly payed out by the Act of Parliament 1671. Albeit the Apprizing was Expyâed Ibidem An Apprizing was Sustained though it proceeded on a Bond payable upon Requâsition and that the Claim of the Apprizing did make mention of the Requâsition seing the Requisition was done and is now produced and though the Messenger having met at the dyet appointed for the Apprizing did adjourn the Court of Apprizing till the next day in respect of a great Rain and that the place designed for the Apprizing was upon the open Field and though the place of the Apprizing was by diâpensation neither at Edinburgh nor at the Head Burgh of the Shire and past as a common Bill of course Iuly 12. 1671. Heirs of Lundy contra the Earl of Southesk and others In Apprizings Messengers are prohibite by Act of Sederunt to continue the dyer of Apprizings except upon absolute necessity that Parties interressed be not put to uncertain attendance and likewise diâpenâations for the place of Apprizings is prohibite to be past of course amongst other common Bills without being Read Ibidem An Apprizing acquired by the appearand Heir of the Debitor was found satisfiable by any other of the Defuncts Creditors by paying what the appearand Heir truly payed therefore albeit the appearand Heirs Disposition was before the Act of Parliament 1661. seing his Infeftment by which the Right real is Established in his Person and his Author was Denuded was after the said Act and albeit the Apprizing was not expired when the appearand Heir acquired Right but that it became to expire continuing in his Person and that it was Redeemable within ten years from the date of the acquiring but not from the expiring of the Legal Iâne 21. 1671. Maxwel of Nether-pollock contra Maxwel of Kirkconnel An Apprizer was found not obliged to restrict his Possession to his Annualrent in favours of posterior Apprizers by the Clause for Restriction in the Act of Parliament 1661. which is personal and peculiar to the Debitor but seing the first Apprizer would not admit the posterior Apprizers to possess he should be comptable for the whole Rental from the time of the Exclusion Iuly 28. 1671. Murray contra Earl of Southesk and others ARBITERS got Warrand on a Supplication to Cite Witnesses before them Ianuary 6. 1670. Ker of Cavers and Scot of Goldenberry Supplicants ARRESTMENT was not elided because the sum arrested was discharged before the arrestment seing it appears the Discharge was not delivered to the Party in whose hands the arrestment was made nor none to his use before the arrestment December 13. 1661. Boyd contra Lairds of Niddrie and Edmonstoun An Arrester and an Assigney competing the Assigney was preferred because the Arrestment was loosed albeit the sum Arrested remained still in the same hands because the Arrestment was on a dependence and no Decreet thereupon against the principal Debitor Iuly 4. 1661. Raith of Edmonstoun contra Laird of Niddrie and Lady VVolmet Arrestment cannot be loosed without Caution super cautione juratoria Iuly 16. 1661. Colledge of St Andrews Supplicant Arrestment was found not to affect the Sallaries of the Lords and the Kings Pensions conform to a Letter and Act of Sederunt February 18. 1662. Sir Robert Murray contra Arrestment Execute on the Sabbath Day was found null by Exception February 3. 1663. Oliphant contra Dowglas of Dorâoch Arresters Competing the second being on Letters of Supplement against a Party ouâ of the Countrey was preferred to the first being at his Dwelling Place without Supplement Ianuary 20. 1665. Lord Lowre contra Givon Arrestment on a Bond not Registrate was found looseable as not being on a Dââreet of Registration or any other and after the loosing the Arrester was found preferable to a posterior Assigney seing the Money was yet in his Hand in whose it was Arrested February 7. 1665. Grahame contra Brown and Doctor Martine Arrestment being laid on in the hands of a Party who Entred in a Minute or Bargain of Land though he passed therefrom yet the price was ordained to be made forth-coming November 23. 1665. Campbel contra Doctor Beatoun Arresters having both obtained Decreet in one day were found not to come in equally but the first Arrester was preferred have done equal diligence February 1. 1666. Collonel Cunninghame contra Lyel An Arrester and Comprizer Competing for a Sâm whereupon Apprizing was led at the Instance of the common debitor whereupon no Infeftment followed yet the Arrestment upon the said first Apprizers debt was not âound habilis modus to make forthcoming the Sum Appryzed for but the second Appryzer was preferred to the Arrester February 22. 1666. Lockhart contra Lord Bargenzie An Arrestment was found to give Action after the death of the debitor whose Goods were Arrested without a new Decreet against any Repreâenting him seing he died at the Horn and so could have none to Represent him in mobilibus February 19. 1667. Givon contra Hume here the Defuncts Donator to his Escheat concurred An Arrestment of Annualrents laid on currânte termiââ was preferred
declarator of Distress or Eviction but a pursuit of Removing or Mails and Duties upon Eviction is sufficient which cannot be excluded by a possessory judgement upon 7. years Possession by the publick Infeftment unless it were 7. years after the Eviction February 20. 1668. Forbes contra Innes Base Infeftments granted by a Father to his two Sons of the same date one of Property of Lands and another of annualrent forth thereof was found both valide as being cled with the Fathers possession reserved in both there being no suspition of defraud of Creditors or competition with them and that a singular Successor appryzing and Infeft from the one was not preferable to a posterior Adjudger from the other Iune 30. 1668. Chem contra Chrisly A base Infeftment of annualrent was found validate by Possession upon another Infeftment of annualrent in corroboration of the former out of distinct Lands whereby both Infeftments as to both Lands were found valide though no payment was made by the Debitor or by the Tennents in the first Infeftment Iuly 9. 1668. Alexander contra the Laird of Clackmannan A base Infeftment to a Creditor was preferred to a posterior publick Infeftment granted to a Wife by an additional Ioynture in respect there was a Citation on the base Infeftment anterior to the Wifes publick Infeftment which was found to validate the same and sentence of preference of poynding of the Ground was now granted therein Ianuary 27. 1669. Bell of Belfoord contra Lady Rutherâoord A base Infeftment never cled with Possession was found valide to exclude the Terce of the granters Relict Ibâdem A base Infeftment by a Father to his Children was found not validate by the Fathers Possession wherein he continued albeit he had a Factory from the Children here it was not alleadged that the Father had granted Discharges or used Citation expresly relative to the Factory Iuly 10. 1669. Gairdiner contra Colvil BASTARDY being gifted by the Vsurpers defends the Bastards Debitors no further than what they bona fide payed to the Donator but not for what was yet in their hands which belongs to the Kings Donator Iuly 19. 166â Windrham contra Megregors Bastardy was found not to be relevantly Libelled that the Defuncts Father and Mother were not Married but that it behoved to be alleadged that the Defunct was commonly holden and repute Bastard But that it was also sufficient that the Defuncts taking a Legitimation had acknowledged his Bastardy February 19. 1669. Kings Advocate contra Craw. Bastardy was found not to be inferred by the negative presumption that the Father and the Mother were not Married but that it behoved to be proven positive that the Defunct was holden and repute Bastard Iune 15. 1670. Livingstoun contra Burn. Bastardy puts the Donator to no better case as to Back-bonds or mutual Obligements than the Bastard his Heir would have been in Iune 20. 1671. Alexander contra Lord Saâtoun BEHAVING AS HEIR by intrometting with the Mails and Duties of the Defuncts Lands was elided because the Defender intrometted singulari titulo by an Appryzing though the Legal was not expired unless it had been clearly satisfied by intromission or otherwise Ianuary 10. 1662. Barclay contra Laird of Craigivar Behaving as Heir was found in no time coming to be âlided by taking Right to any Appryzing or Adjudication led against the Intrometters for their own Debt real or simulate though such Rights were expired February 28. 1662. Act of Sederunt Vide Ianuary 22. 1662. Glendoning contra Earl of Nithisdail Behaving as Heir was not inferred by Inâromission with the Rents of the Lands which were disponed by the Defunct and Infeftment thereon but to the behove of the Defender the appearand Heir Ianuary 14. 1662. Harper contra Hume of Plandergaist Behaving as Heir was inferred by the appearand Heir his inârometting with the Rents of Lands belonging to his Father the Debitor in so far as being disponed to the Defender they were Redeemed by him though no Declarator or new Infeftment followed and also found by intrometting with the Fathers whole Silver-work without alleadging a formal drawing of the Heirship or taking any of them as such and though the Lands were Appryzed from the Defunct seing the Legal was un-expired and the Defender had no Right from the Appryzer February 21. 1663. Hamiltoun contra Hamiltoun Behaving as Heir by intrometting with Heirship was not âlided because the Defuncts Lands were apprized seing the Legal was not expired before his death February 26. 1663. Cuthbert of Drakies contra Mânro of Foulis Behaving as Heir was not ânferred by intromission with the Rents of the Defuncts Lands which were appryzed and whereunto the appearand Heir acquired Right before he fell to be apparent Heir though he continued to possess after the appryzing was satisfied by intromission February 26. 1663. Inter cosdem Behaving as Heir was elided as to Heirship because the Defunct dyed Rebel and his Escheat was gifted and declared Ibidem Behaving as Heir by medling with heirship was not elided because the Defunct dyed at the Horn and thereby nihil habuit in bonis nor yet that the Escheat was gifted before intenting of this cause but that it was gifted and declared before Iune 10. 1663. Gordoun of Lâsmore contra Keith Behaving as Heir was elided because the Defunct was Rebel his Escheat gifted and the appearand Heir intrometted by the Donators Rights or Tollerance and that before intenting of the Cause albeit no declarator thereon Iuly 4. 1665. Innes contra Wilson Behaving as Heir was not Sustained upon Intromission had by a Tutor November 30. 1665. Boyd contra Tâlziâer Behaving as Heir was not Sustained by Heirs of Line their Renuncing to be Heirs in favours of the Heir-male to whom the Father had disponed seing they gave no Right thereby hurtful to Creditors but gave a Renunciation voluntarly which Law would have compelled them to give though for their kindness they got a sum of Money Iuly 5. 1666. Scot contra Heirs of Auchinleck Behaving as Heir by Intromission with the Rents of the Defuncts Lands was elided by Tollerance from a Donator of Recognition albeit not declared till after the Intromission the Defender paying the single value Iuly 17. 1666. Ogilby contra Lord Gray Behaving as Heir by intromission with the Duties of the Defuncts Lands was elided by a Disposition from the Defunct to the Intrometters Son the Defuncts oye though without Infeftment or by a Tack by the apparent Heirs Husband though expired before the Defuncts death as continuing per tacitam relocationem Ianuary 16. 1667. Reâd contra Salmond Behaving as Heir was Sustained by Exception Ianuary 8. 1668. Forbes contra Innes Behaving as Heir was found to be instructed by a Discharge granted by the Party as appearand Heir bearing receipt of the Defuncts Charter Chist without any Inventary or Protestation and keeping of it two years without necessity to alleadge that any use was made of the Writs but was not inferred by raising of
the conclusion of the Summons as it is related in the certification was not in the Terms of an Improbation and at the Kings Advocats Instance there being likewise a Discharge of a Terms Feu-duty granted by the party having Right to the certification which Term and Discharge were posterior to the certification and did import a passing from it and did Homologaiâ the Vassals Right Iune 6. 1671. Steil contra Hay of Raâray Certification contra non producta was not Sustained at the instance of an Appryzer against all Writs granted by him and his Authors Named and their Predecessors to whom they may succeed âure sanguinis as to the Rights granted by these Predecessors unless it be instructed that the said Authors were Infeft as Heirs to their saids Predecessors and that though Defenders be obliged passive to produce all Rights made to them and their Predecessors to whom they may succeed jure sanguinis and so to produce before they be entered yet active they cannot insist for certification of Rights made by their Predecessors as appearand Heirs to them but as being actually Heirs and Infeft and that an Appryzer was in no better case as to this than if his Authors had been pursuing and so he behoved to instruct that they were Infeft as Heirs to their Predecessors Iuly 14. 1671. Dumbar of Baldoon contra Maxwel Certification was not stopped because there was none called to represent the Defenders Authors upon whom they did condescend unless they first produce their Rights from these Authors thereby to instruct that they are Authors and unless that these Authors be obliged to them in warrandice the warrandice being the only ground of calling the Authors that they might defend their Rights to shun the warrandice Ibidem A CHARGE to enter Heir was not found necessary to a poynding of the Ground against the appearand Heir of the granter of the Annualrent Ianuary 2. 1667. Oliphant contra Hamiltoun CHIROGRAPHVM apud debitorem repertum was found not only to extend to a Bond found by the debitor but to an Assignation made by the Cedent found by him and Witnesse were not admitted to prove delivery and instructing the Cedent to have the Assignation as Agent December 13. 1666. Thomson contra Stevinson CIRCVMVENTION was not Sustained upon a parties making bargain anent the boot of an â Horse though it was offered to be proven by the Defenders own Oath that according to his own estimation the Pursuer was lesed above the half and that he was Minor in respect of his Bond bearing upon his oath and conscience never to come in the contrary given at that same time in his minority and ratified after his Majority Iune 23. 1669. Fairie contra Inglis Circumvention was found instructed upon several pregnant evidences of fraud and that not only against the circumveener who obtained a Bond blank in the Creditors Name but against a third Party whose Name was filled up in the blank he having acknowledged by his Oath of Calumny that there were not equivalent sums due to him by the circumveener the time that he delivered to him the blank Bond and filled up his Name but that he became Debitor to him thereafter in equivalent sums whereof he could give no evidence even by his own compt Book though he was an exact Merchant and lived in the same place with the granter of the Blank-bond who is commonly known to be a simple person and the obtainer thereof a subdolus person without asking the granter of the Bond if he had any thing to object whereof he should not accept of it February 9. 1670. Scot contra Cheâsly and Thomson Circumvention was sustained to Reduce or abaâe a Bond made up of the Rate of the Exchange of Money not agreed upon before the Money was advanced by the Merchant but thereafter the Merchant being intrusted and gave up the rate of Exchange much higher than he thenâ knew it was but not upon the agreement before hand although it had been far above the ordinary Rate Ianuary 19. 1671. Dickson contra Grahame CITATION on a Bill without the Signet was sustained against a person dwelling in Edinburgh though no member or dependent on the Colledge of Iustice February 12. 1663. Earl of Southeâk contra Laird of Brooââhal Citation at the Mercat Cross of the Shire with certification to be holden as confest granted against a Defender absent where the Messengers Executions bear that he Charged the Defender at his dwelling House and that he knew that he was within but was forcibly holden out by his Wife Iuly 1670. Lindsay and Swintoun her Spouse contra Inglis A CLAVSE in a Bond whereby a Sum was payable to the Man and Wife the longest liver of them two and their Heirs which failing the Mans Heirs was found to constitute the Wife a Lifâerenter only and that she could not uplift the sum because the Heir was not concurring and was Infeft and behoved to concur December 10. 1661. Kinross contra Laird of Hunthil A Clause in a Tack that if two years duty run together unpayed the Tack should expire and renuncing the same in that case with a Bond bearing much Duty resting and if it were not payed by such a day that the Master of the Ground might enter in Possession of the Land and Cropt brâvi maââ was found to exclude ejection and spuilzie by so entering without declarator December 19. 1661. Dewar contra Countes of Murray A Clause in a Missive whereby the Writer says I have sent you such a sum and you shall have as much as long as you live if you carry your self as you do now being questioned as a Postscript unsubscribed written with the Parties own hand at his Subscription was not found null on that ground but it being alleadged to import but a resolution and not a promise and that the Parties behaviour should only depend on the Writers opinion without necessitating him to prove it aliunde The Lords assoilzied Iuly 15. 1662. Wauchop contra Laird of Niddrie A Clause obliging a party and his Heir-male and all others succeeding to him on this Narrative that his Heir male had the benefite of his Estate and the Heirs female excluded were found to burden the Heir-male primo loco and therefore behoved to be discussed first or the Executors could be lyable Iuly 22. 1662. Anderson contra Wauchop A Clause destinating a Sum to be imployed for the Pursuer and his Heirs on Infeftment was found Heretable quo ad creditorem and to exclude the Wife and Bairns but Moveable quo ad dâbitorem and payable out of his Moveables Iuly 22. 1662. Nasmith contra Iaffray A Clause that an Heir-male should pay a Sum to an Heir female out of âenements was found personally to oblige him to pay but only quo ad valorem of the Tenements and therefore time was granted to dispose thereupon for that purpose December 2. 1662. Câââk contra Clerk of Pitâncreââf A Clause bearing such a quantity to be the
as to their Lands and Goods in Scotland though they reside and ãâã abroad and no nuncupative Testament there can exclude the nearest of kin hâre Ianuary 19. 1665. Schaw contra ãâã The Law of England was found to reach the manner of probation of a Bond made there by an English-man to a Scots-man residing ãâã after the stâle of England and that payment to the Cedent was probable by the Cedents Oath and payment also probable by Witnesses Iune 28. 1666. Momârlane contra Lord Melvil Yet a Bond by a Scots-man to an English-man in England after the stile of Scotland Registrable there was found Regulate by the Law of Scotland and noâ taken away by Witnesses Ibidem A LEGACY of an Heretable Right was found null though in leâge poâstie February 21. 1663. Wardlaw contra Frazer of Kilmundie A Legacy leât of 600. merkâ and in part thereof the Executors ordained to Discharge or give Back-bond of 200. merks due to the Testaârix which Bond was found to belong âo the Husband jure mariti and that being Moveable the Wife had but her half of it yet the Lords found that the Executors ought to make it upâ to the Legataâ as lâgâtum rei aliena scienter legatâ for that being a palpable principle in Law they could not excuse the Wifes ignorance therein Iune 16 1664. Murray contra Executors of Rutherfoord A Legacy being special was found not to be abated proportionally with ordinary Legacies in case they exceed the Deeds part Iuly 21. 1665. Sprââl contra Murray A Legacy of a Bond in special was sustained though the Executor had an Assignation thereto from the Defunct seing the same Legacy might be made up of the ãâã Gear as being lâgatum rei alienâ seing it was presumed that the Defunct remembred his own Assignation Iune 24 1664. Falâânâr contra Mcdâwgal LICENCE to pursue was sâstained without Confirmation though granted after the principal Testament was Confirmed being to a Creditor Iune â0 1665. Stevinson contra Crawfoord Licence to pursue was sustained after Confirmation of the principal Testament and before Confirmation of Datives ad ommissa February 21. 166â Scot of Clârkingtoân contra Lady Clârkingtoun AFTER LIâISCONTESTATION Alleadgeances instantly verified are receivable Iune 24. 1663. Bruce contrâ Laird of Strââchan Litiscontâââation being made before the Commissars at a parties instance as Factor it was found relevant against that party pursuing as Executor Creditor being instantly verified February 10. 1663. Crawfoord contra Creditors of Inglis LOCVS PENITENTIAE was found to have no place in an agreement to take a lesâ sum it being as pactââ libâratoriâm though writ was not interposed others of the parties Transactors having payed conform December 12. 1661. Hâpburn contra Hamiltâân of Orbiâââum The like in restricting an annualrent to a part of the Lands âffected February â 1666. ãâã contrâ Hunter and Tennents of Cambâ Locus ãâã was found competent to one who had bought Lands though he had written that he thought he could not be able to keep the Bargain and furnish the Money yet subâoyned that he would not pass from the communing and albeit he had received the Keyâ of the House seing there was neither Minute nor other Wâât drawn up âhâreupon Ianuary 28. 1663. Mântgomry of Skâlmorly contra Brown THE LORDS Sallatles or the Pensions of the King are not arrestable conform to a Letter of the Kings and Act of Sederunt February 8. 1662. contra Murray The Lords found themselveâ competent to Iudge the Nullities of the Decreets of the Commission for Plantation of Kirkâ which werâ visible and instantly vârified and needed no Reduction as that a Decrâet against an Heretor not called was null Ianuary 16. 1663. Earl of Roxburgh contra Kinnââr The Lords found themselves competent to Iudge upon the Iustice Generals Decreet for Assythment which hath but a civil effect for damnage December 16. 1664. Innes contra Forbâs of Tolqââânâ The Lords gave warrant Summarly upon Supplication to take the person of a Bankrupt who was unexpectedly and fraudfully fled Novâmbâr 30. 1665. Creditors of Masson Supplicants The Lords albeit they are not Iudges in Causes Criminal yet they found themselves coâpetent to Advocaâe a Criminal Cause of Theft but upon the old Act of Parliament of King Iamâs the second from â Sheriff to the Iustice General February 21. 1â66 contra Sheriââ of Invârnâssâ The Lords deposed a Writer to ãâã âigneâ for inserting an Article for possessing a party in Letters of Horning having no warrand for the said Article Ianuary â 1669. Zeaman contra Monreiff The Lords upon a Bill for Horning upon Excommunication allowed the party Excommunicate ãâã object against the Groânds of Excommunication who having founded upon an appeal to the King and Council The Lordâ having had an account from the Council that they had Remitted that matter to the âishop did pass the Hoââing Iuly 6. 1670. Archbishop and Presbytery of St. Andrâwâ contra Pittillâ LVCRATIVE SVCCESSOR was not inferred by a Disposition and Infeftment to the behove of the appearand Heâr but only in so far as was Lucrative ãâã valorâm Ianuary 14. 1662 Harper contra Hume of âlandergast Lucrative Successor was not inferred by a Disposition by an Vncle to his Nephew the Brother being alive who was not found alioqui successurus as in the case of an Oye November 22. 166â Scââ coâtra Bâssâwel of Auchinleck Lucrative Successor was inferred by an Assignation of an Heretable Bond by â Father to his eldest Son who would have succeeded him as Heir therein and that the same was not alike with Bonds of Provision wherein in Father ãâã only Deâitor to the Son Dâcâmbâr â 1665. Edgar contra Colvil Lucrative Successor was not inferred by accepting of a Tocher yet so as if the Tocher were exorbitant both Husband and Wife were found lyable to the Fathers Creditors for what was above a competent Tocher December 23. 1665. Burnet contra Lepers LIFE being presumed was taken off by the Parties being ââ years out of the Counârey and commoâly âolden anâ ãâ¦ã There waâ also a Letter produced by a ãâã in the Waâ bearing that the party was dead February 18. 1670. Lowry contra Drummond LIFERENTERS of an annuaIrent waâ found Iyable for publick burden with the ãâã albeit the Act 164â thereanent was Rescinded as being due in jure Iune 18. 166â Fleming contra Gillies A Liâerenter being Infeft in a Liferent of Lands cum mâllândiniâ was found to have right to a Miln builded thereafter upon the Land by her Husband but not to the abstracted Multures of his Lands except the Liferent Lands February 16. 1666. Lady Otter contra Laird of Otter A Liferenter being by her Contract ânfeft in Lands obliged to be worth such a Rent besides Teinds and Feâ-duties or at her option the heir was obliged to accept a Tack of the Lands for the like sum of free Rent by free Rent was not only understood free of Feu and Teind Duty as is exprest in
simple Renunciation competent to the Superiour to exclude the Terce and that she could brook no part âf the Land by vertue of her Terce and that the Superiours founding upon the clause accepting Lands in satisfaction of the Terce did not import his approbation of her Right to the Lands accepted seing she wanted the Superiours consent as being an essentiâl requisite to her Infeftment of Ward Lands and so could admit of no Homologation more than if she had only the contract without any Infeftment This was stopped to be farder heard whether the Relict might brook at least a third of the Ward Lands accepted as a Terâe of these Lands though she could not brook the whole Ward Lands accepted being within a Terce of all her Husbands Ward Lands especially since the Clause bear that she accepted the Liâerent Lands in satisfaction of all farder Conjunct fees but should be repuââed a Terce as being in lieu of all farder Terce whether in that case she renunced only the Terce of any other Lands buâ not the Terce of the Lands accepted Iune 23. 1671. Lady Baâââagan contra Lord Drumlanrig THE TERM OF PAYMENT of Bairnâ pârtions ãâã at such aââ age the same was found as dies ãâã qui pro conditione habetur and they not attaining that âge theiâ nearest of Kin had no right Ianuary 17. 1665. Edgar contra Edgar A TESAMENT Nuncupative by a Scotsman made in England or abroad where he resided was found null as to the nomination of Succession notwithstanding the Law of the place which rules only as to the Solemnities of Writs but not to Substantials or appoynting of Successors Ianuary 19 1665. Schaw contra Lennox A Testament containing a Legacy of a Wodset was sound void though it was done ãâã prââinctu belâi February 21. 1663. Wardlaw contra Frazer of Kilmundy A Testament confirmed beaâing persons to be nominate Tutors and that they compeared judicially accepted made Faith and found Caution was found not sufficient to defend against a Reduction without production of the Tutors Subscription as the warrand to make the Tutor lyable for the Pupils means conform to the Inventary unless there were other adminicles to astruct the same albeit the confirmation was thirty seven years since seing the acceptance was no ordinary act of process nor no process was moved upon the confirmation till of late Iaâuary last 1665. Kirktoun contra Laird of Hunthil A Testament confirmed was found to be execute at the Executors instance by a Decreet though he had not obtained payment anâ though he was Executor dative and a meeâ stranger so that after the Executors death the sums in the Decreet could not be confirmed by an Executoâ ad non executa of the first Defunct November 17 1666. Dounâe contra Young A Testament was reduced because the Testator being alleadged not to be compos mentâs the Nottar Writeâ and Wiânesses insert and other extraâeous Witnesses deponed that about the time of the Testament and thereafter the Testator was not in his right mind and to every question that was proposed answered alwayes yea yea although they were not present at the making of the Testament and were contrary to the Witnesses insert this was stoped to be further heard Iune 9 1668. Meallâxander contra Dalrymple A Testament beginning in the ordinary stile of a Testament and then disponing Land thereafter containing a blank wherein by another ink and hand the Defuncts eldest daughter was named universal Legatrix and Executrix but after all the moveables were disponâd to the eldest Daughter which Testament being quarrelled by reduction was found null as to the disposition of the Lands and as to the nomination of the Executor and Legatar the same was not sustained though filled up before the Defuncts death albeit it was offered to be proven by the Nottar and Wâtnesses insert that the Defunct gave warrand so to fill it up but it was sustained as to the disposition of the moveables as a Legacy in so far as the Defunct could Legat which may subsist though the nomination of the Executor be wanting or void Iuly 13. 1670. Daughters of Soâityay contra the eldest daughter Testament Vide clause December 15 1668. Windrham contra Elâis THIRLAGE was found constitute by long custom of payment of Intown Multure in mollendino regâo but was not extended to the Teânds of that Barony though possest promiscuâ far above fouâty yeaâs without more then custom and was not excluded by the Feuers of the Barony their Feus granted by the King cum mollendiniâ mulâuriâ in the teneâdas only which was thought but past in the Exchequer of course without observation Ianuary 8. 1662. Steuart contra the Feuaâs of Aberledno The like without allowing any part of the cropt multure free for expences of labour and Hinds-corn but only the Seed Horse-corn and Teind Ianuary 14. 1662. Nicolson contra Fâuars of Tillicutrie Thirlage was sound constitute by an old Decreet against the Tennents possessors without a calling their Master and long possession conform thereupon albeit the Heretâr was Infeât cum mollendiââââ and that Witnesses being examined hinc inde conceâning the possession and interruption by going sometimes to other Miâns were proven yet not so frequently as might not be Olandestine Iune 24 1665. Collonel Montgomerie contra Wâllaâe and Râie Thirlage was inferred where the Feuer of the Miln was Infeft in the Miln with the mulâures of the Lands in question per expressum and was in possession of insuckân Multure thereof fourty years albeit the Defendeâ was infeft before without the burden of astriction and did sometimes go to other mââns which being frequent in all astrictions was found not to be a competent interruption Iune â9 1665. Heretoâ of the Miln of Kâthick contra Feuars Thirlage was infeâred by infeftment of a miln with the multures c. generally with a precept from a Bishop then Heretor of the Lands in question ordaining his Tennents to pay their multuâes to that miln which with long possession was found sufficient albeit it had no consent of a Chapter December 7 166â Vââtch contra Duncan Thirlage being constitute by an infeftment from him who ãâã ãâã of Land and Miln was found no to be prejudgeed upon the alleadged insuâââciency of the Miln unless the insufficiency were alleadged to be through the fault of the Heretoâ of the Miln February 9 1666. Heretors of ãâã contra Feâars Thirlage was not Inferreâ by an infefâment of âands with such a miln and the multures used and woât which was not extended to Lânds of another Barony âolden of another Superiour though they then belonged to the Disponeâ and were in use to come to that miln December 11 1666. Earl of Cassils contra Tennents of Dalmortoun Thirlage though constitute by a Vassal hath no eââect against the Superiour during the Vassals Ward unless the superiour consented neither is his consent inferred by his receiving an Assignay to the Appryzing with reservation of the multures in the
lay so much marked upon the Precept received in name of Composition Earl of Lauderdail contra Tennents of Swintoun Ianuary 7. 1662. EArl of Lauderdail as having Right to the Forefaulture of the Barony of Swintoun pursues the Tennents for Maills and Duties George Livingstou one of them alleadges that he must be assoilzied from one Years Dutie because he offers him to prove That it is the Custom of the Barony of Swintoun at least of a distinct Quarter thereof That the Tennents do always at their entry pay half a years Rent and are free of Rent at the Term they remove and so do all a long pay a Year at the least half a Year before the hand and subsumes that he has payed accordingly to Swintoun himself for a Terms Maill due for the Crop which is after the pursuers Right The Pursuer alleadged non Relââat against him a singular Successor or against the KING his Author because that Partie that hath Right to the Land hath Right to the Fruits and so to the Rents which is payable for the fruits which were extent upon the Land or growand after that Parties Rightâ and no payment before the hand can liberat the Possessor from the Pursuite of a Singular Successor Therefore it hath been frequently found that payment before the hand is not Relevant against an Appryzer yea even against an Arrester so that the KING and his Donatar since their Right was established and known cannot be excluded by payment before the hand to a partie who had no Right to the Land or to the Fruits that Year otherwayes both the KING and Creditors might be defrauded by Fore-maills or by Tacks appointing the Fore-mail to be payed the first Term whatsoever length the Tack be Secondly Any such alleadgances were only probable scripto vel juramenio The Defender answered that the Case here is not like the Fore-maills instanced because every Year is payed within it self and so the first Year the half at the beginning thereof and the half at the middle thereof and subsequent Years conform which must be sufficient to the Tennent otherways Tennents paying at Whitsonday and Martinmess should not be liberat because the whole Year is not run out or a Tennent paying his Ferms at Candlesmass should not be secure against Singular Possessors for the profit of Grasse thereof till Whitsonday The Lords found the Defense Relevant and the Custome of the Barony to be proven by Witnesses and likewise the payment of the Dutie in so far as in Victual and also for the money not exceeding an hundred pounds Termlie Iames Stewart contra Feuars of Aberbadenoch Ianuary 8. 1662. JAmes Stewart as being Heritably infeft in the Milne of Aberbadenoch pursues the Feuars of the Barony for abstract Multures of their Corns growing within the Barony or which tholed Fire and Water within the same The Defenders alleadged absolvitor because they are Infeft in their Lands feu of the KING long before the Pursuers Infeftment which Infeftment bears cum Molendiuis Multuris in the tenendas The Pursuer Replyed that albeit that Clause were sufficient Liberation amongst Subjects yet this is a Milne of the KINGS Propertie whereunto Thirlage is sufficently Constitute by long Possession of coming to the Milne and paying in Towns Multures and Services as is Craig's opinion and hath been so found by the Lords February 5. one thousand six hundred thirty five Dog contra Mushet The Defender answered That albeit Thirlage to the KINGS Milnes may be Constitute without Writ yet cannot take away an expresse Exemption granted by the KING The Lords Repelled the Defense in respect of the Reply because they thoughâ that this Clause being but in the tenendas past of Course and when Sigâaââââ are past the KINGS hand or Exchequar's they bear only tenândas c. without expressing the Particular Clause which is afterwards extended at the Seals The Defenders alleadged further absolvitor from the Multure of the Teind because that was not Thirled nor had the KING any Right thereto when he granted the Infeftment of the Milne The Pursuer Replyed the Defense ought to be Repelled in respect of the long Possession in Molândo Regio because the Defenders and their Tennents past fourty years payed Multures of all their Corns promiscuously without exception of Teind likeas there are several Decreets produced for abstract Multures of all the Corns without exception The Defender answered That the Reply non Relevat for albeit long Possession may make a Thirlage of the KINGS own Baronie yet that cannot be extended to other mens Rights of their Lands and Teinds which cannot be Thirled without their own Consent or Decreets against themselves called nor do the Decreets bear Teind per expressum The Lords found the Defeuse Relevant notwithstanding of the Reply except such Teinds that thole Fire and Water within the Barony and likewise sâstaiââed the Defense for the Corns eâten by the Defenders upon the Ground in the Labouring c. Earl of Murray contra Laird of Grant January 9. 1662. THE Earl of Murray Pursues the Laird of Grant to Re-dispone him certain Lands which the Earls Father had Disponed to the Defender and had taken his Back-bond that if the Earls Friends should find it prejudicial to the Earl then upon payment of 2800. merks precisely at Whitsonday he should Re-dispone ita est the Earls Friends by a Testificat produced found the Bargain to his loss therefore he offered the sum to the Defender in his own House which he refused and now offers to Re-produce it cum omni causa The Defender alleadged Absolvitor First Because the Back-bond is pactum de retro vendendo And so a Reversion which is strictissimi juris and not to be extended beyond the express Terms thereof which are that if Iames Earl of Murray should re-pay the Sum at Whitsonday 1653. precisely the Defender should Re-dispone But there is no mention of the Earlsâ Heirs and so cannot extend to this Earl though he were Heir as he was not served Heir the time of the offer The Pursuer answered that when Reversions are meaned to be Personal and not to be extended to Heirs they do bear That if the Reverser in his own time or at any time during his life c. or some such Expression but there is nothing such here and the Pursuer was Retoured Heir to his Father who died shortly before the Term of Redemption and having used all Diligence he cannot be excluded by such an accident which he could not help The Lords Repelled both the Defenses albeit there was only an offer without Consignation seeing the Back-bond did not bear Premonition or Consignation but only payment which the Pursuer now offered Baird contra Baird Eodem die BAird in Saint Andrews having taken the Gift of his Brothers Escheat upon his Adultery Pursues Declarator thereupon The Defender alleadged no Processes till the Crime were Cognosced in the Criminal Court or at least he were declared Fugitive and
end of which Disposition there is a Clause bearing that because the Young's were kindly Tennents in the Lands of Greenlaw therefore they Dispone their Right thereof and kindlynesse thereto to Grubbet More having acquired the Rights of the Lands of Morbatle from Sir Iohn Ker and the Earl of Louthian having Apprized Sir Iohn's Right of the Barony of Lintoun in Anno 1636. gives a particular Right of Greenlaw alone which is now also in the Person of More whereupon arises a Competition of Right between Grubbet and More Grubbet alleadged that he has Right to Greenlaw as a Part and Pertinent of Otterburn which he and the Young's his Authors have Possest far beyond 40. years as Part and Pertinent of Otterburn and offers to prove that there is standing Marches between Morbatle and Otterburn within which Marches Greenlaw lyes on Otterburn side and that his Infeftment produced granted by Young to Young bears expresly Greenlaw It was alleadged for More First that Grubbet cannot pretend Greenlaw to be Part and Pertinent of Otterburn because by his own Infeftments produced granted by the Young's and accepted by him Greenlaw is not exprest as Part and Pertinent of Otterburn albeit Raschbog tho lesse considerable then it be exprest and on the contrair it is declared that the Young's were kindly Tennents of Greenlaw and Disponed their kindness thereof aud offers to prove that the Young's were in constant custom of Service to Sir Iohn Ker in Armes and otherways whenever they were required and that most of the Lands on the border were Set only for Service which Service could not be attribute to Otterburn because it was holden blench of Sir Iohn and if need be 's offered to prove by Witnesses that when the said Young's came not to the said Service they were poinded therefore 2dly More offered to prove that Greenlaw is a distinct Tenement both from Otterburn and Morbatle and hath past as a distinct Tenement since the year 1636. and hath a known March between it and Otterburn viz. a Know. 3dly For Grubbets pretence of bruiking Greenlaw as Part and Pertinent of Otterburn for 40. years so that he might claim it by Prescription the alleadgeance ought to be Repelled first because Prescription cannot proceed without an Infeftmen and it cannot be ascribed to the Young's Infeftment wherein they acknowledge that they were kindly Tennents of Greenlaw after which no course of time can ever prescribe a Right to Greenlaw as part and Pertinent of Otterburn by that Charter and therefore any Possession that is thereof is without Infeftment 2dly There is not fourty years Possession abating Mores Minority 3dly There are interruptions and therefore if Greenlaw be either a distinct Tenement or part of Morbatle it belongs to More It was answered for Grubbet that he and his Authors Possessing Greenlaw these 40 years past as part of Otterburn gives him sufficient Right thereunto notwithstanding of any acknowledgement in the Charter or without the Charter before that time for Prescription may change Part and Pertinents so that which was once not acknowledged to be a part by Possession 40 years thereafter may become a part and that acknowledgement never being made use of Prescribes and the Charter in which it is is a sufficient Title both for what was parts the time of the Charter and what becomes thereafter parts by Prescription 2dly The acknowledgement of a Party having Right is of no effect when by demonstration of the Right it self the contrair appears as here therebeing an anterior Right of Property of the Young's produced before that acknowledgement 3dly The ackowledgement is not that they were only kindly Tennents otherwise it is very well consistent with the Property that they being first kindly Tennents and that kindliness being thought more favourable to maintain Possession in these places then any Heretable Right they might very well Dispone Otterburn whereof Greenlaw is a part and might also Dispone their kindness of Greenlaw they had before the Right of Property neither doth it infer because Raschbog is exprest as Pertinent of Otterburn which hath been upon account that Raschbog was then unclear that therefore Greenlaw is no Part thereof or else it could have no more parts but Raschhog there being no more exprest and as for the alleadged Services done by the Young's to Sir Iohn Ker they cannot infer that the Young's were then Tennents of Greenlaw because such Services being only general and no particular Services accustomed by Tennents they might have been performed to Sir Iohn as Superior or as out of kindness to a great Man in the Countrey and it s offered to be proven if need be 's that hundreds granted such Services who were not Tennents so that unless there were a Tack Inrolments of Court or Executions of Poinding produced to instruct Services as a Tack-duty on Greenlaw it is Irrelevant The Lords by a former Interlocutor had found that by the acknowlegement in Young's Charter or any thing therein was not sufficient to exclude Greenlaw from being Part and Pertinent of Otterburn but they found that is More would alleadge a Tack or Inrolment of Court to the Young's of Services for Greenlaw it were sufficient or otherwise if he would alleadge constant Service of the Young's by Riding c. with Sir Iohn and there being Poinded by him when they were absent they found the same with the acknowledgement in Grubbets Right to exclude Grubbet from Greenlaw and if these were not alleadged they ordained Witnesses to be Examined upon the ground hinc inde before answer upon these points whether Greenlaw was known to be a distinct Tennement both from Otterburn and Marbotle or whether it was known to be Part and Pertinent of either and what were the Marches and Meithes thereof and what Services were done by the Young's to Sir Iohn Ker and if such Services were done by others not being moveable Tennents Barclay contra Barclay Iuly 6. 1669. BArclay of Towy having but one Daughter and his Estate Tailzied to Heirs-male his nearest Heir-male being the old Tutor of Towy above 80. years of Age and having also but one Daughter and neither Father nor Daughter being Persons of much discretion Captain Barclay his next Heir-male having also but Daughters he Dispones his Estate in favours of his own Daughter and it being rumored that Captain Barclay pretended a Bond of an hundreth and three thousand Pounds granted by Towy to him that thereby he might prefer him to the Tutor and that the Tutor as Heir-male had also granted several Dispositions to Captain Barclay of that Estate Towies Daughter being an Infant her friends did also procure a Disposition from the Tutor to her and she pursues a Reduction and Improbation against Captain Barclay of the foresaid Bond and Dispositions made to him he Compears and produces a late Disposition made by the Tutor and alleadges that he had the Bond foresaid and two Dispositions from the Tutor anterior to this produced but that a Person to whom