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 fraâ—dm 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 mâ—ght 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 Estaâ—e 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 〈◊〉 for their Duties It was alleadged that the Horning was null because the Dâ—bt 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
and there is no necessity of Reduction but where the Writs must be Produced before they can be Reduced and even in that case if the Pursuer satisfie the Production himself the Defender hath no delay and here the Pursuer produces all that is necessar and craves the rest to be Declared null in consequence The Lords sustained the Summons Glendinning contra Earl of Nithisdale Ianuary 22. 1662. GEorge Glendinning of Partoun pursues the Earl of Nithisdale for fulfilling of a Contract of Excambion betwixt the Earls Father and the Pursuers Grand-father and insist against the Earl as lawfully charged to enter Heir to his Father The Earl alleadged absolvitor because he offers him to Renunce to be Heir The Pursuer replyed the Defense ought to be repelled quia res non est intigra because the Earl has done a Deed prejudicial to his Renunciation viz. he granted a Bond for two thousand pounds sterling to the Earl of Dirltoun only simulatlie to his own behove whereupon his Fathers whole Estate was adjudged and that Adjudication assigned to the Earl himself and so he having intrometted be that Simulat Title with the Maills and Duties of his Fathers Lands he hath behaved himself as Heir and cannot Renunce The Defender duplyed that the Reply ought to be repelled because he offered not only to Renunce but also to Purge that Deed of his and the Adjudication of two thousand pounds sterling and to declare that it should not prejudge the Pursuer nor his Fathers lawful Creditors and that he should be comptable for the Price of any Lands he had sold or any Rents he had uplifted The Pursuer triplyed that the duply ought to be repelled because medio tempore the Earl had bought in expired Apprisings with the Profits of the Lands The Defender quadruplyed that he was content to restrict any such Rights to the Sums he truly payed for them and not to exclude the Pursuer by them The Pursuer Answered That he having once behaved himself as Heir no Offer nor Renunciation could be received The Defender Answered that his Intromission could not be gestio pro herede because it was singulari titulo and not as Heir and in gestione there must appear animus adeundi aut immiscendi The contrair whereof is here for the granting of the Bond and the taking right to the Adjudication thereupon was of purpose that his Intromission might not be as Heir or as immixtion which can never be without an illegal and unwarrantable Deed but all that was here done was Legal there being no Law nor Custom to hinder the Earl to grant a Bond albeit gratis and after Dirltoun had Adjudged the Lands there was no Law to hinder the appearand Heir to take Assignation thereto and bruik thereby more then a Stranger and albeit there were Simulation or Fraud that might be a ground to Reduce upon but not to infer a general passive Title to make the Defender lyable to all his Fathers Debts from which Passive Title qui res colleratus titulus excusâ—â— and albeit this Passive Title be not any where else in the World but in Scotland yet it was never applyed to this Case now in question but by the contrare since the Act of Parliament one thousand six hundred twenty one by which Heirs may be charged to enter Heirs to their Predecessors not only for the Defuncts Debts but their own any Bond granted by the Appearand Heir although gratis would be valid to Apprize or Adjudge the Defuncts Estate and therefore there being many Cases in which the Appearand Heir could not probably know whether the Heretage would be Hurtful or Profitable This hath been ofttimes advised as the remeid be Sir Thomas Hope and many since That the Heir Appearand might grant a Bond and thereupon the Lands being Adjudged might take Right thereto The Pursuer answered the Defender had intrometted with the Rents of his Predicessors Land which albeit not animo adeundi yet animo Immiscendi Lucrandi which cannot be maintained by a simulat null Bond by himself to his own behove and Adjudication thereupon and if this were sustained no Person would ever after enter Heir to his Predecessor but take this indirect way to the Defraud and Vexation of Creditors and entring so to possesse would buy in other Rights and maintain his Possession as this Defender hath done and would not be oblieged or willing to restrict these Rights as he doth The Lords after long Consideration and debate in the matter found the Earls offers relevant but resolved to make and publish an Act of Sederunt against any such courses in time coming and declared that it should be gestio pro haerede to intromet upon such simulat Titles Adam Hepburn contra Hellen Hepburn Eodem die ADam Hepburn Brother to the Deceast Thomas Hepburn of Humbie Pursues Reduction and Improbation against Hellen Hepburn his Brother Daughter of a Disposition made by him to his Daughter on Death Bed The Lords granted a third Term for Production in respect of the Improbation albeit there was but a Writ or two called for Nominatim Laird of Rentoun contra Mr. Mark Ker. Ianuary 24. 1662. THE Laird of Rentoun having obtained Decreet before the Commissaries of Berwick against Mr. Mark Ker compearing for three Chalders of Victual of Teind Mr. Mark Suspends upon iniquity because he having proponed a Relevant Defense that he ought to have allowance of the Annuitie which he had payed which affected the Teinds It was repelled The Charger Answered non relevat by way of Suspension without there were a Reduction The Suspender Answered the Reason was instantly verified by inspection of the Decreet The Lords found the Reason not competent by Suspension without Reduction Mr. Iames Ramsay contra Earl of Wintoun Eodem die M r. Iames Ramsay as having Right by translation from George Seaton Assigny constitute by my Lady Semple to a Bond due by the umquhile Earl of Wintoum pursues this Earl for payment who alleadged no Process because the time of the Assignation taken by Sir George Seatoun he was one of the Defenders Tutors and so it is presumed that the Assignation was purchased by the Pupils Means and as the Tutor could have no Process thereupon against the Pupil till he had made his Tutor accompts so neither can his Assigney seeing in Person alibus all exceptions competent against the Cedent are competent against the Assigney The Lords found the Defense relevant unlesse the Pursuer would find Caution to pay what should be found due by Sir George by the Tutors Accompts as they had done before betwixt Grant and Grant January 15. 1662. Laird of Lamingtoun contra Sir Iohn Chiesly Ianuary 29. 1662. THE Laird of Lamingtoun pursues Sir Iohn Chiesly upon the late Act of Parliament 1661. betwixt Debitor and Creditor to restrict a proper Wodset granted by Lamingtoun to him of the Lands of Symontoun to his Annualrent The Defender excepted upon a Back-bond granted by Lamingtoun whereby
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 Pâ—rties 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
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 habeâ—ur 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 Parliâ—ment 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
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
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 pertnenâ—tibus 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 adâ—urgum 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 callâ—d 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 Pâ—sturage 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
exclude probation of Super-intromission and there being two Compts produced the Charge of the last Compt is the rest of the former Compt and the Oath relates only to the last Compt. The Lords Repelled the Defense upon the Act of Pacification which they found was only unrescinded in so far as it is contained in the late Act of Indemnity and Repelled the Defense upon the Act of Indemnity in respect of the Exception and found that the Father had not Counted duly for his whole Intromission and that his Oath extended only to the last Compt and having considered the Testimonies of the Witnesses they made a difference betwixt what umquhil Lamertoun applyed to his own use and what Corns and Cattel were carried away by Souldiers by his direction to the Army that he might be free of the latter and lyable for the former Iohnstoun of Sheins contra Isobel Arnold Iuly 22. 1668. IAmes Arnold having granted a Bond of Provision to his Daughter Isobel became afterwards Debitor to Iohnstoun of Sheins who Appryzed Arnold's Estate in Anno 1638. upon a Debt of his own and as Assigney to another Debt Thereafter Isobel Arnold on her Bond of Provision Appryzes the same Lands Sheins conies in Possession of the most part and Isobel in a small part till they both acquire the benefit of a Possessory Judgement whereupon there are mutual Reductions Sheins Reason was that his Fathers Appryzing was long prior to the Defenders and that the ground of the Defenders Appryzing was only a Bond of Provision by a Father to his Daughter which could never exclude the Fathers Creditors especially if that Debt was contracted before the Bond of Provision was granted and while it remained in the Fathers Custody and so in his power to be Reduced at his pleasure Isobels Reason of Reduction was that albeit Shein's Appryzing was prior yet there was no Infeftment thereon in Shein's person bearing to be on an Assignation to the Appryzing by Shein's to Collingtoun but any Infeftment produced is in Collingtouns Person bearing to be on an Assignation to the Appryzing by Sheins to Collingtoun which Assignation is not produced and so Shein's Infeftment flowing from Collingtoun is null because Collingtouns Right from Umquhile Shein's is wanting which is the mid-cuppling 2dly Shein's Appryzing being on two Sums the one whereof was to the behove of a Cautioner who had payed the Debt and taken the Assignation in Shein's Name to his own behove which Cautioner being conjunct Cautioner with Iames Arnold the common Author and having a Clause of relief neither he nor Shein's intrusted by him could justly or validly Appryze Arnold the Cautioners Lands for the whole Sum but behoved to deduce the other Cautioners part and so the Appryzing is upon invalide grounds and thereby is null and albeit prior to Isobel Arnold's Appryzing yet she has the only valide Appryzing It was answered for Shein's that the first Reason was not competent to the Pursuer for it was jus tertij to her what progresse Collingtoun had from Umquhile Shein's seing she Derives no Right from him 2dly This Collingtoun by his Right granted to this Shein's acknowledges that aborigine the Infeftment in Collingtoun his Fathers person was to Shein's behove which is a sufficient Adminicle in place of the Assignation and to the second Reason albeit it were instructed it could not annul the Appryzing in totum but restrict it to the Sum truly Due especially seing that Shein's was content to declare his Appryzing Redeemable by payment of the Sums truly Resting within such times as the Lords would appoint and albeit the Lords are strict in the Formalities of Appryzings when they are expired and carry the whole Estate though improportional yet during the legal they allow them in so far as they are due The Lords found Isobel Arnolds first Reason Competent and Relevant to her unlesse Collingtouns Assignation were produced or the Tenor of it proven and found the second Reason Relevant to restrict the Appryzing to the Sum truly due in respect that Shein's did of Consent declare it yet Redeemable for the true Sums But they found Shein's alleadgeance that the ground of Isobel Arnolds Appryzing was a Bond of Provision posterior in Date or Delivery to Shein's Debt Relevant to prefer him as a Conjunct Creditor for his true Debt though the Assignation should not be produced a new one from Collingtoun being sufficient Iohn Boswel contra the Town of Kirkaldy Eodem die IOhn Boswel having some Aikers in the Towns Lands of Kirkaldy and some Houses in the Town but not dwelling within the Town or Paroch nor using any Trade therein pursues the Town as having unwarrantably Stented him for his Stock and Trade he not dwelling in their Burgh 2dly For unequal Stenting him as to his Lands 3dly For Stenting him for the Towns Debts as for the Sums payed for their Erecting Harbours and some Teinds they Bought 4thly For Stenting him for the second Ministers Stipend whereas he payed the whole Teind to the first Minister nor dwelt he in the Paroch nor consented to a second Minister or to his Stipend and for unwarrantable Quartering on him and his Tennents and this since the year 1644. It was answered for the Defenders that they denyed Stenting of the Pursuer for any Stock or Trade seing he was no Inhabitant or that they Quartered on him unwarrantably but alleadged there was now no ground after so long a time to quarrel the inequality of their Stent Rolls which were made by fifteen sworn Men especially after so long a time for this preparative would be the foundation of a Debate at the instance of every Burgess against every Town in Scotland neither could there be a clear Rule as in Valuations but behoved to proceed by the Stenters Conjecture according to the common esteem of the Means and Trade of every Burgess so that unless the Complaint were against the inhability of the Stenters in due time made there could be no Debate thereafter And further alleadged that for the Towns Debts that such as were contracted for the common benefit of the Town for getting their Erection and Harbour and for the second Ministers Stipend the half of which had been payed by the whole Heretors since the year 1613. and the other half since the year 1649. that their new Kirk was Erected should burden the Pursuer proportionally according to his Land Rent The Pursuer answered that he not being an Inhabitant was not concerned in the Erection or Harbour nor in the second Ministers Stipend seing he payed his whole Teind to the first Minister The Lords found the Pursuer lyable for the half of the Stipend in regard of the immemorial use of payment but found him free for what he had not payed of the other unless it had been imposed by Authority or his own Consent and also found him free of the Personal Debt and would not Sustain Process against the inequality of the Stent Roll after so long a
them off from some Merchant and therefore payment should not be made to such Persons till they produce the Merchants Accompt and his Discharge or if it be and if these Persons interposed pay not the Merchant as in this case the loss must not be to the Merchant but to these who payed to the interposed Persons upon their hazard and if this were not all Merchants would be ruined for no Persons of quality do immediatly take off from the Merchants themselves The Lords found that these Articles in the Accompt in relation to the Petticoat and the 114. pounds which were known by the Defender or his Lady to be taken off in their Name and put in Andrew Bruce his Book were due by them and that though the same had been paid to Margaret Sinclar it was upon the Defenders peril if she paid not the Merchant They did also find that the Goods being acknowledged to be converted to the Defenders use they were lyable to the Pursuer in so far as they proved not they paid Margaret Sinclar and found the same probable by Margarets Writ or by Witnesses but found not that Ground Relevant that Margaret Sinclar was intrusted generally to take off Ware or that the Grounds alleadged did instruct a particular Warrand to take off from the Pursuer and therefore did not find the payment made to Margaret Sinclar which she failed to pay the Merchant to be upon the Defenders peril except as to the two parcels of Accompt aforesaid which the Defenders knew to be in their Name in the Pursuers Book Countess of Dundee contra Straitâ—un February 24. 1669. THe Countess of Dundee as Donatrix to her Husbands Escheat pursues Straitoun for a Sum due to her Husband The Defender alleadged absolvitor because that same day this Bond was granted by him to the Earl a Creditor of the Earls arrested to whom the Defender had made payment and obtained his Assignation and therefore as Assigney craves compensation and preference as Arrester It was answered that this Debt being contracted by the late Earl after he was Rebel it cannot burden his Escheat in prejudice of the King and his Donator for though Creditors whose Debts were due before Rebellion arresting after Rebellion may be preferred yet no Debt contracted by the Rebel after Rebellion can burden his Escheat neither by arrestment nor compensation Which the Lords found Relevant and preferred the Donatrix except as to what was due to the Defender by herself or for Drogs to her Husband which she was content to allow The Earl of Kincardin contra The Laird of Rosyth Eodem die THe Earl of Kincardin pursues the Laird of Rosyth for the Teinds of his Lands to which the Pursuer has Right The Defender alleadged that he had obtained a Decreet of the high Commission for Plantations against the Earl whereby they Decerned the Earl to Sell and Dispone these Teinds for a price mentioned in the Decreet being about nine years Purchase thereof and therefore the Pursuer cannot have Right to the Teinds themselves but only to the Annualrent of that Sum which was the price The Pursuer answered that he opponed the Decreet produced which did not de presenti adjudge the Teinds to the Defender but Decerned the Pursuer to sell them to him upon payment of the said price which can give no Right to the Teinds till the price be payed or at least offered which was never done The Lords Repelled the Defense in respect of the Reply The Earl of Annandail contra Young and other Creditors of Humeâ— Eodem die THe Earl of Annandail having obtained Assignation from Iohn Ioussie to a Sum of Money due by the Earl of Hume whereupon Inhibition was used Anno. 1634. and shortly thereafter an Appryzing upon which Aunandail was lately infeft whereupon he now pursues Reduction of the Infeftment granted by the Earl of Hume to Young as being after his Inhibition which Inhibition being auterior to the most part of the Debs Wodsets and Apprizings of the Estate of Hume and being supposed to be the leading Case that the Decision thereon might rule all the rest many of the Creditors did concur with Young and produced their Interests and craved to see the Process It was answered that they had no Interest in Youngs Right and so could not crave a sight of the Process It was replyed that albeit the Sentence against Young could not directly operate against them yet indirectly it would as being a Dicision and Practique in the like case The Lords found this no Interest to stop Process but allowed any Creditors that pleased to concur in the Dispute It was then alleadged Absolvitor because this Assignation Inhibition and Apprizing albeit standing in the Person of the Earl of Annandail yet it was truely on Trust to the behove of the Earl of Hume and if to his behove it did accresce to the Defenders as having Right from him and for evidence of the Trust they condescended upon these grounds First That the Debt was contracted 35. years since and no Diligence ever used thereupon till now except an Apprizing whereupon no Infeftment was taken till of late albeit Infeftments were taken of the Estate of Hume upon many posterior Apprizings which are now expired and will exclude this Apprizing 2dly The Assignation granted by Iousie to Annandails Father was immediatly after the Lands of Dunglasse was Sold by the Earl of Hume to the Laird of Dunglass by whom Ioussie was payed as a part of the price by Sir William Gray who was then Debitor to Dunglasse likeas Ioussies Oath being taken ex officio upon his Death-bed Depones that Sir William Gray payed him the Money albeit he knew not by whose Means or to whose use yet he knew nothing of any payment made by the Earl of Annandails Fatherâ— 3dly This Inhibition and Apprizing was never in Annandails or his Fathers Possession but still in the Possession of the Earl of Hume and his Agents and still in his Charter Chist 4dly The Earl of Annandail took a Security from the Earl of Hume for all Sums due to him or for which he was Cautioner wherein there is neither mention nor reservation of this Sum or Apprizing 5thly The Earl of Annandail has consented to many of the Creditors Rights which he would never have done if this Apprizing had been to his own behove thereby preferring others to himself the Creditors therefore craved Witnesses to be Examined ex officio upon all these points for clearing of the Trust which being an obscure contrivance can be no otherwise probable all the Actors being now Dead and is most favourable in the behalf of Creditors who if this pursute take effect will be utterly excluded for if the Inhibition Reduce their Rights the Pursuers Apprizing supervenient upon that same Sum is now expired and irredeemable The Pursuer answered he did declare he would make only use of this Right for satisfaction of the Debts due to him and for which he was Cautioner
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
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 â—ltered 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 Boâ—â—s 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 Pitâ—â—irn 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
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
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 Rutherâ—oord A base Infeftment never cled with Possession was found valide to exclude the Terce of the granters Relict Ibâ—dem 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 Saâ—toun 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 â—lided 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 Inâ—romission 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 inâ—rometting 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 â—lided because the Defuncts Lands were apprized seing the Legal was not expired before his death February 26. 1663. Cuthbert of Drakies contra Mâ—nro of Foulis Behaving as Heir was not â—nferred 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 Lâ—smore 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 Tâ—lziâ—er 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. Reâ—d 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
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 poâ—uit sibi legeâ—â— 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 â—airns 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 Glenureâ—y 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 Forefaâ—ture 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 tâ—mpore 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 â—alling 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 Dundâ—e contra Straâ—town 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 Agâ—at 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 Paâ—oun 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. Veâ—ch contra Lord
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 Traâ—saction though but Verbal but as to the manner of Probation they ordained the â—utrix and overseers Oaths to be taken ex officio Gordoun of Gight contra Abercrombie of Birkbog Eodem die SIR Alexander Abercâ—ombâ—e 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 Oversheâ—ls 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 eâ—ervart 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 â—â—und 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 â—â—â—â—prove the Qualitieâ— thereof and so found the Reply not to acknowâ—â—ge the Defense but reserve it to either Partie to alleadge contra â—oducenda and found the Personal Obligdement sufficient to dâ—bar the Purâ—â—â—â— 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 Bâ—rns 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 iâ—stantlie 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 Veriâ—ty 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
instruct the Protestation The Lords Repelled the Defense in respect of the absence of the Register and the oldness of the Horning Achinbeck contra Mccleud Eodem die IN an Improbation at the Instance of the Laird of Achinbeck against Mccleud The Lords found that the Improbation behoved to be continued albeit the samine had an ordinar priviledge to pass upon six dayes for the first Summonds past of course periculo penitentis Acheson contra Earl of Errol Eodem die ACheson pursues the Earl of Errol as presenting his Father to pay a Debt wherein his Father was Cautioner for the Earl of Mar and for instructing thereof produced the Extract of a Bond Registrate by consent in the Books of Session The Defender alleadged no Processe against him because the Bond was not Registrat by any Procurator for his Father because he was Dead before the Registration and so cannot prove against him neither being a principal Writ Subscribed by his hand nor being a Decreet of Registration by consent of his Procurator nor upon Citation The Pursuer alleadged that it was an authentick Evident and bare expresly Sic subscribitur Errol and seing by Law and Custom the Pursuer was necessitat to leave the Principal at the Register when the Registrat the same and that the Registers are now lost without his fault The Lords refused to sustain the Extract against the Earl of Errol but yet would not put the Party to an Action of proving the Tenor but would receive Adminiâ—les to instruct that Earl was Cautioner and therefore ex officio ordained the other Subscribers of the Bond or any other person that could be adduced for instructing the Truth to be required ex officio Thomas Crawford contra Earl of Murray February 8. 1662. THomas Crawford as Executor Creditor Confirmed to Umquhil Robert Ingâ—is as Assigney by his Relict for satisfaction of her Contract of Marriage pursues the Earl of Murray for payment of the Sums Confirmed addebted by him to the said umquhil Robert The Defender alleadged compensation because he had Assignation to a Debt due by the said umquhil Robert which as it would have been relevant against Robert himself so must it be against his Executor The Pursuer replyed First non relevat unless the Assignation had been Intimat before the Confirmation but an Executor Creditor having done Diligence by Confirmation it is not in the power of any of the Defuncts Debitors by taking Assignation from any of his Creditors to prefer that Creditor to any other Creditor which is no ways legittimus modus preferendi But the Creditors must be preferred only according to their Diligence Secondly This Pursuit being for Implement of the Relicts Contract of Marriage and pursued to their behove hath by our Law and Custome preference to all other personal Creditors though having done more Diligence The Lords found either of these two Replys Relevant to elide the Defense albeit the Assignation was before any Pursuit moved upon the Pursuers Confirmation Lord Torphichan contra Eodem die THe Lord Torphichan and certain of his Feuars pursue a Reduction of a Decreet of the Sheriff whereby he set down Marches betwixt their Lands and others upon this Ground that he did not proceed by an Inquest conform to the Act of Parliament but by Witnesses Secondly That he as Superiour was not Called Thirdly That the Sheriff had unwarrantably Sustained the setting down of Marches foamerly by Arbiters to be proven by Witnesses The Defenders answered the first Reason was not objected and the Defenders Compearance it was competent and omitted To the second the Superour could have no Detriment To the third that the setting down of March-stones being a palpable Fact might be proven by Witnesses whether done by the Parties themselves or by Friends chosen in their presence their being neither Decreet-arbitral nor Submission in Writ The Lords Repelled the Reasons in respect of the Answer and declared that if the Land fell in the Superiours hands by Recognition Non-entry or otherwise The Decreet should not prejudge him if he were not Called Ramsay of Torbanie contra Mcclellane February 11. 1662. DAvid Ramsay of Torbanie having raised Suspension and Reduction of a Decreet against him at the Iâ—stanâ—e of Thomas Mcclellane in Anno 1658. Insists upon this Reason that he being pursued as Heir to his Father at the Instance of Thomas Mcclellane he proponed this Relevant Defense absolvitor because the Bond pursued upon was granted by his Father after he was Interdicted without consent of the Interdictors and so could not affect the Person Interdicted Heir albeit he had succeeded in his Estate The Defender answered that the said alleadgence was justly Repelled in respect of this relevant Reply that the Interdiction hath no effect as to Moveables and Personal Execution neither as to any other Lands then such as lay in the Shires or Jurisdictions where the Interdiction was puplished and Registrat conform to the Act of Parliament ita est this Interdiction was published and Registrate only at Linlithgow and therefore if the Defender hath succeeded to any Lands not lying in Linlithgow Shire or if he hath medled with Heirship Moveable or be vitious Intromettor with his Fathers Moveables he is lyable for this Sum albeit after the Interdiction ita est he succeeded to Lands in the Stewartry of Kirkcudburgh and Moveables c. and therefore the Defense was justly Repelled The Lords found the Decreet just and therefore Repelled the Reasons of Suspension and Reduction Bells contra Wilkie February 12. 1662. GRissel and Bells raise a Reduction against Iames Wilkie of a Decreet obtained at his Instance against them in Anno 1659. whereby the said Iames Wilkie being Executor Confirmed to his Mother who was one of the Sisters and Executors of umquhil Patrick Bell their Brother in which Confirmation the said Iames gave up the third of the said Patricks Goods and thereupon obtained Decreet against these Pursuers as the two surviving Executors to pay to the said Iames his Mothers third Part of her Brothers Means The Reason of Reduction was that the Decreet was unjust and contrair to the Law and Custom of this Kingdom whereby there is no right of Representation in Moveables as in Heretage neither doth the Confirmation of the Executors establish in the Executors a compleat Right untill the Testament be execute either by obtaining payment or Decreet and if the Executor die before Execution the Right ceases and is not Transmitted to the Executors Executor but remains in bonis defuncti of the first Defunct and therefore Executors ad non Executa must be confirmed to the first Defunct which being a constant and unquestionable custome one of the three Executors deceasing before Executing the Testament her Right fully ceases and both the Office of Executrie and Benefit accresâ—es to the surviving Sisters as if the deceased Sister had never been Confirmed Executrix The Defender in the Reduction Answered That this Reason was most justly Repelled because albeit it be true
Direct Action in favour of the Mandator against the Mandatar or Person intrusted so there is a contrare Action in favours of the Mandatar for satisfying of all that he hath expended by Reason of the Trust and which he may make use of beway of Exception of Retention if he be pursued and whatsomever by in Relation to Compensation in deposito by the civil Law or of the difference of Action and Exception yet thereby they and by our un contraverted Custom whatever is competent by way of Action is Competent by Exception and if this be not receavable by Exception it is utterly lost because there is none to represent Summerset The Lords considering that Balmirino's Estate was disponed and Apprysed by his Vncle the Lord Couper and William Purvis the Reversion whereof was shortly to expire which they would not lengthen and that by an accompt running to the expire of these Reversions the Pursuer being a Stranger might be frustrat therefore they Repelled the Defense but declared that Estate or benefit that Bedfoord should make thereby should be lyable to Balmirino for what Debt he should instruct to be due by Sommerset and withall supersâ—â—eded the Extract fâ—r a time that if in the meane time Balmirino should cause Couper and Purvis Restrict their Rights to as much Rents as would pay their Annualrents and secure Bedfoord in the rest of his Estate and in a certain Bond produced for what should be found due They would sustain the Defense by Exception and Ordain Compt and Reckoning Lord Carnagy contra Lord Cranburn February 19. 1662. THE Lord Carnagie being Infeft in the Barony of Dirltoun upon a Gift of Recognition by the KING pursues a Declarator of Recognition against the Lord Cranburn because the late Earl of Dirltoun holding the said Barony Ward of the KING had without the KING'S consent alienat the same to Cranburn and thereby the Lands had Re-cognized The Defender alleadged First No Process because he is minor non tenetur placitare super haereditate paterna Secondly The Re-cognition is incurred by the ingratitude and Delinquence of the Vassal yet delicta morte extinguntur so that there being no other Sentence nor Litiscontestation against Dirltoun in his own Life it is now extinct which holds in all Criminal and Penal Cases except in Treason only by a special Act of Parliament The Lords Repelled both the Defenses The First in respect that the Defender is not Heir but singular Successor and that there is no question of the validity of his Predecessors Right in competition with any other Right but the Superiours The other because Recognition befalls not as a Crime but as a Condition implyed in the nature of the Right that if the Vassal alienat his Fee becomes void Children of Wolmet contra Mr. Mark Ker. Eodem die IN a Declarator of Redemption at the the Instance of the Children VVolmet against Mr. Mark Ker. It was found that the Declarator needed not be continued though the Pursuer produced not the Reversion but an attestat double thereof and offered to prove that the principal Reversion was in the Defenders hands Which was sustained the Pursuers Right being an Appryzing Earl of Calender contra Andrew Monro February 20. 1662. THE Earl of Calender pursues Andrew Monro of Beercrofts for the valued Teind Duty of his Lands several years who alleadged absolvitor for the Teinds intrometted with by his Author preceeding his Right The Pursuer Replyed that Teinds being valued are like an Annualrent and are debiti fundi by the Act of Parliament 1633. anent Valuations The Teind-masters being appointed to be Infeft in the Right of the Teind according to the Valuation The Lords found the Defense Relevant and found the Teind not to be debitum fundi albeit valued Halbâ—rt Irvin contra Mackertnay Februarie 24. 1662. THis day in a Spulzie betwixt Halbert Irvin and Mackertnay The Defender principally called having proponed a Defense upon a Disposition and Delivery of the Goods in question and craving to prove the same by others of the Defenders called as accessory as necessary Witnesses alleadging that the Pursuer had called all that were present upon the ground as accessories that thereby he should get no Witnesses The Lords Ordained the Pursuer in the Spulzie to declare whether he would insist against these others as accessory or as applying any of the Goods to their own behove or if he would not allowed them to be received as Witnesses and if he did insist against them Ordained the Processe against the principal Partie to fist till the accessions were discussed that such of them as were assoilzied might be used as Witnesses Alexander Arbuthnet of Fiddes contra Keiths February 25. 1662. ALezander Arbuthnet of Fiddes pursues Keiths the two Daughters of John Keith and their Husbands for the avail of their Marriages belonging to him as Donatar by the Earl of Marischal their Superiour The Defenders alleadged First No Process because nothing produced to instruct that the Lands were Waird or that the Earl of Marischal is Superiour Secondly absolvitor from that Conclusion of the Summonsâ— craving not only the Ground to be Poynded for the avail of the Tocher but also the Defenders personally to pay the same Thirdly Absolvitor because the Earl of Marischal consented to the Defenders Marriage in so far as he is Witness in the Contract The Lords repelled all these Alleadgances The First in respect that Waird is presumed where the contrair is not alleadged and the Defender did not disclaim the Earl of Marischal as his Superiour The Second because they found that the avail of the Marriage did not follow the Value of the Land holden Waird but the Parties other Means and Estates also so that the avail of the Marriage might be much more worth then the profite of the Waird Land and therefore behoved not only to affect the Ground but the Heir or appearand Heir personally And as to the other Defense of the Earls consent it was after this Granted and was only as Witness neither is the profite of the Marriage as to the single avail taken away by having of the Superiours tacit consent but is a Casuality simply belonging to him which cannot be taken from him unless id agebâ—tur to renunce the benefite thereof yet it seems that the Superiour consenting to his Vassals Marriage can crave no greater Avail then the Vassal gets of Tocher Brown contra Iohnstoun February 26. 1662. BRown having obtained Decreet against Archibald Iohnstoun of Clachrie for two hundred pounds Sterling He raises Reduction and Review upon this Reason that the ground of the said Decreet was a Bill of Exchange drawn by Johnstoun to be payed by Mukgown in Blackainor-fair in England Ita est the alleadged Bill is null not Designing the Writer nor having any Witnesses neither hath it the Subscription of Johnstoun nor the Initial Letters of his Name but only a mark most easily Initiable which is Written about with an unknown hand Archibald Johnstoun
Disponed these Lands to the Pursuer with her consent Subscribing the Disposition It was Duplyed The Defenders Subscription and Consent was Extorted metus causa whereupon she has Action of Reduction depending and holds the production satisfied with the Writs produced and repeates her Reason by way of Duply viz. if she was compelled by her Husband it was by just fear because she offered to prove by Witnesses that he threatned her to consent or else he should do her a mischief and that he was a fierce man and had many times beaten her and shut her out of Doors and offered to prove by the Nortar and Witnesses Insert that at the time of the Subscription she declared her unwillingness The Lords found the Defense and Duply Relevant David Wilkie contra Sir Andrew Ker. Eodem die DAvid Wilkie and others Tacks-men of the Castoms Charged Sir Andrew Ker for the Tack-Duty of the Customs of the Border Anno 1650. Set by them to him he Suspends and alleadges by the publick Calamity of the English Entry in Anno 1650. in Iuly Traffick was hindered and by the Kings Proclamation against Commerce with these The Charger answered it was a Casuallity ex natura rei and that they had payed without Defalcation and the Suspender had profit in former years The Lords before answer Ordained the Suspender to Compt upon what benefit he got in Anno 1650. and what Profite above the Tack-duty in former years Adamsons contra Lord Balmerino Iune 26. 1662. ADamsons being Infeft in an old Annualrent out of two Tenements in Leith and having thereupon obtained Decreet of Poynding the Ground in Anno 1661. and insisting for poinding one of the Tennents Goods now belonging to the Lord Balmerino for the whole Annualrent Balmerino Suspends on these Reasons First The Heretor against whom the Decreet of poinding was obtained and all the Tennents were Dead and therefore it can receive no summar Execution against the present Heretor and his Tennents but there must be a new Decreet against them Secondly Balmerino hath peaceably possessed this Tenement twenty or thirty years and thereby hath the Benefit of a possessory Judgement by which his Infeftment cannot be questioned without Reduction and Declarator Thirdly The Englishes possessed this Tenement several years by the publick Calamity of War and therefore there must be Deduction of these years Annualrents as is frequently done in Feu-duties Fourthly The two Tenements being now in the hands of different singular Successors Balmerino's Tenement can only be poinded for a part of the Annualrent The Pursuer answered that Poinding of the ground is actorialis chiefly against the Ground and therefore during the Obtainers Life it is valued not only against the ground while it belonged to these Heretors and Possessors but against the same in whosoever hands it be that the Moveable Goods therein or the Ground Right thereof may be Apprized To the second Annualrents are debita fundi and a Possessory Judgement takes neither place for them nor against them To the third though in some cases Feu-duties ceass by Devestation that was never extended to Annualrents due for the profit of a Stock of Money To the fourth the Annualrent being out of two Tenements promiscuously The Annualrenter may Distress any part for the whole in whosoever hands the Tenement may be The Lords Repelled all these Defenses but superceded Execution for one half of the Annualrent for a time and Ordained the Suspender to give Commission to Balmerino to put the Decreet in Execution against the other Tenements for its proportion for his relief medio tempore Wilson contra Thomson Eodem die WIlson having obtained Decreet against Thomson for poinding of the Ground of a Tenement of Land Thomson Suspends on this Reason that the Chargers Infeftment is base and before it was cled with Possession the Suspender was publickly Infeft and thereby excludes the base Infeftment though prior The Charger answered that the Reason ought to be repelled because he had used Citation upon the base Infeftment before the publick Infeftment by which Citation res fuit letigiosa The Lords Repelled the Reason in respect of the Answer and found the base Infeftment validat by the Citation whereupon the Decreet followed Ruthven contra Laird of Gairn Iune 27. 1662. THe Laird of Gairn having Infeft his Son in his Estate reserving his own Liferent after his Sons Death his Oye pursues him for an Aliment out of the Estate conform to the Act of Parliament appointing the Heir to be Entertained by the Donatars to the Ward Conjunct-feears or Liferenters thereof The Defender alleadged absolvitor because the Act of Parliament cannot be extended to his case who voluntarly Infeft his Son in his Estate with the burden of his Liferent Secondly If any Aliment were due the Mother who is Liferenter must bear her part Thirdly Aliment is only due where the Heir hath no other means But here the Heir hath a Stock of Money which though Liferented by his Mother yet he may Entertain himself out of the Stock The Pursuer answered First That the Act of Parliament anent Alimenting of Heirs is generally against Liferenters without exception Secondly The Disposition by the Defender to the Son was for a Tocher worth all the Estate he then had wherefore no part was Liferented by the Son or his Wife the Pursuers Mother but only a sum of Money which came by her self and there is no reason that the Stock thereof should be exhausted for the Pursuers Aliment the Defender having now succeeded to a plentiful Estate The Lords Repelled the Defense in respect of the Replyes Mr. David Watson contra Mr. Iames Ellies Eodem die MR. David Watson having acquired Right to the Superiority of Stenhouse milne pursues the Feuers for their Feu-duties who alleadge First no Process the Lands in Question being Kirk-lands Disponed to a Lord of Erection and it is declared that the Lords of Erection having only right to the Feu-duty till they be Redeemed by the KING at ten Years purchase by the Act of Parliament thereanent in Anno 1633. And thereby none have Right but such as subscribed the submission surrendring their Interest in the KING'S hands untill the Pursuer Instruct that his Author did subscribe the said submission he hath no Interest Secondly absolvitor from the Feu-duties 1650. and 1651. Because the Lands were wasted these Years by publik calamity of War Thirdly absolvitor from Harrage and Carrage because all Services are reserved to the KING by the said Act of Parliament The Lords assoilzied from Harrage and Carrage but differed for the Feu-duty being smal and found no necessity for the Pursuer to instruct that this Author did subscribe the Surrender after so long time but that the same was presumed for his so long bruiking the Fee Sir William Wilson contra Sir William Murray Eodem die WIlson having Apprysed Sir William Murrays Estate pursues him and his Tenents for Mails and Duties who alleadged that by the Act
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
constant custome the entertainment of the Defuncts Families was ever a burthen on their Moveables and upon their Executry The Pursuer answered though it was ordinarly retained off the Moveables yet the Heir was also lyable seing the Defunct was oblieged to entertain his Servants and Children at least to a Term but much more when there were no Moveables or where the Defunct was Rebel and the Donatar intrometted The Defender answered that it was novum to conveen an Heir on this ground and that the Alledgiance of there being no Moveables held not here neither is it relevant that the Moveables were gifted unless it had been declared before the Defunct's Death and Possession obtained otherwayes the Relict ought to have Alimented the Family out of the Moveables which would have liberat her from the Donatar and is yet ground against the Donatars The Pursuer answered she could not retain because the Donatar with Concourse of the Defender did put her brevi manu from the Defunct's House and all the Moveables The Lords having amongst themselves considered this Process did put difference between the Aliment of the Appearant Heir and the rest of the Family As to the Heir they found that albeit he was never Infeft yet as Appearant Heir he had Right to the Mails and Duties from his Fathers Death untill his own Death though the Terms had been to run before he was born being in utero and that the Defender in so far as medling with the Rents was lyable for the Appearant Heirs Aliment but for the rest of the Familie the Lords superceeded to give answer till diligence were done against the Donatar or other Intrometters with the Moveables Thomas Dumbar of Muchrome contra The Vassals of the Barrony of Muchrome Eodem die THomas Dumbar of Muchrome pursues Reduction and Improbation against the Vassals of the Barrony of Mochrume wherein all the Terms being run reserving Defenses Now at the last Term it was alleaged for Hay of Arriolland no Certification contra non producta against him because he had produced a Precept of clare constat from the Pursuers Father as Heir to whom he pursues Secondly It was alleaged that he had produced sufficiently to exclude the Pursuers Right produced and so till his Rights produced were discust and taken away there could be no Certification contra non producta The Pursuer answered to the first that the Precept of clare constat was but in obedience of a Precept out of the Chancellary As to the Ancient Rights produced if the Defender would rest thereon he needed not stand that Certification should be granted against any others not produced seing these produced are sufficient but if the Certification should be thus stopped the effect of all Improbations and Non-entries should be marred by dropping in new Writs from time to time and still disputing thereon and so dispute the Reasons before the Production were closed at least the Defender ought to alledge that the Writs produced are sufficient and declare he will make use of no further in this Process The Lords repelled the first Alleadgance on the Precept of clare constat being for obedience but found the second Alleadgance relevant hoc ordine and ordained the Defender to condescend upon his Rights by way of Defence to the Pursuer to answer thereto presently Collonel Iohn Fullertoun contra Viscount of Kingstoun Ianuary 8. 1663. COllonel Iohn Fullertoun having charged the Viscount of Kingstoun upon a Bond of borrowed Mony he suspends on these Reasons That the Collonel granted Assignation to Umquile Sir Alexander Dowglas to a Sum dew by Sir William Thomson and notwithstanding of the Assignation he uplifted the Sum himself at least his Brother by his order whereupon the Lady Kingstoun Daughter and Heir to the said Sir Alexander having Licence to pursue hath pursued the Collonel upon the Warrandice for Re-payment which Action being seen and returned and ready to be discust the Suspender craves Compensation thereon The Charger answered That the reason of Compensation is not relevant because it is not liquid the foresaid Sum not being confirmed by any Executor nor Sentence thereupon neither can it be instantly verified because it must abide Probation that the Collonel or his Brother by his order uplifted the Sum and there being only a licence to pursue the Debt cannot be established till a Confirmation Secondly Albeit the Compensation were relievable yet the Reason ought to be repelled because that any such Assignation was granted it was in trust to the Collonels own behove as is instructed by a missive Letter to the Charger produced It was answered for the Suspender that the Answers founded upon the missive Letter ought to be repelled because it was null neither being Holograph nor having Witnesses Secondly It is most suspect being written upon old blacked Paper The Charger answered that Letters amongst Merchands though not Holograph are sustained and ought much more among Souldiers especially between the Charger and Sir Alexander who then was his Lieutenant Collonel which is the more clear that there was never a question of it these 20 years neither was it contained in the Inventar of Sir Alexanders Papers though there were insert Papers of less moment but that it was gotten from one White for 40. or 50. Pound The Lords repelled the Compensation as not being liquid and found the Letters orderly proceeded superceeding Execution till Whitsunday 1663. But upon the other Process against the Charger The Lords considering the matter was old and dubious before Answer they ordained Witnesses to be examined hinc inde upon all Adminicles that could be adduced for or against the Trust. Lady Otter contra Laird of Otter Eodem die THe Umquhile Laird of Otter by his Contract of Marriage having provided his Estate to his Heir Male provided 5000 Merks to his eldest Heir Female when she should be capable of Marriage and an occasion offered whereupon the said Heir Female her Mother pursues the Heir Male for payment of the Sum and for payment of an Aliment to the Heir Female during the time she hath been with her Mother and in time coming till the provision be payed The Defender alleadged the Libel is no way relevant for Aliment he not being oblidged by the Contract for any Aliment but only for the Sum at such a time neither is there any Annualrent due for the Provision till the Term of payment Yet the Lords found that albeit that was no Annualrent nor provision for Aliment and that de jure Annualrent is but due ex pacto they would in this case allow an Aliment far within the Annualrent because it was all that the Daughters got for a very considerable Estate which was but a very small provision Patrick Nicoll contra Sir Alexander Hope Eodem die PAtrick Nicoll pursues a Declarator of Propertie of his Lands of Grantoun and that he had good Right thereto conform to the Bounds Lybelled It was alleadged for Sir Alexander Hope First All Parttes having interest
as done without his Warrand And as to the Procuratory expead in the Chancellary Constituting an Acturney to the said Iames Cicile the expeading thereof was without his knowledge or warrand and therefore the Seasine being taken without his Warrant was null and made no Alienation nor Recognition as if any Heretor Disponing Ward-Lands and giving a Precept of Seasing if any third Party should accidentally find or steal away that Precept and take Seasine the same would be found null as without Warrant and would infer no Recognition 2ly Absolvitor because the Disposition to the Defender bears expresly that Dirltoun Dispones failzing Heirs-male of his Body so that it being conditional and the Seasine being actus legittimus qui nec recipit diâ—m nec conditionem the samine is null for if Diâ—ltoun had an Heir-male of his own Body he would have excluded James Cicile not by way of Reversion or Retrocession there being none such in the Disposition therefore it behoved to be a Suspensive Condition 3ly Absolvitor because though the Seasine had been accepted warrantably yet the Accepter was minor and thereupon Leased and ought to be restored and the Seasine annulled and consequently the Recognition The Pursuer answered to the First non relevat for albeit there had been no Acturney out of the Chancellary the Seasine would have been valid because there needs no other Procuratory for taking of Seasine but only the Precept of Seasine which is an express Mandat of the Disponet and the having thereof in the Acturneys hand is a sufficient evidence of the Warrant or Mandat to be Acturney for the Receiver which proves sufficiently his Warrant neither was there ever any more required to a Seasine in Scotland and if more were required all Seasines would be null it being ordinar to give Seasines to Infants or absents out of the Countrey but the delivery of the Precept by the Disponer to any Person in Name of the Accepter is a sufficient Mandat or Acturney for the Accepter especially here where a Grand-Father gives Infeftment to his Oye he might well give a Warrant to an Acturney for him to accept To the second albeit the Disposition bears failing Heirs-male of the Disponers Body Yet the Precept is directed to give present State and Seasine without delay whereby it is clear that the Disponers meaning was not that this condition should be Suspensive to impede the Infeftment And therefore all it could operate is to have the effect of a resolutive Condition that if any Heir-male should be Supervenient he might upon that condition pursue James Cicile to renunce the Right or to declare it null neither is a Seasine actus legittimus and though it were and were incapable of a day or condition yet that would not annul the Act but annul the condition or day as aditio haereditatis is actus legittimus Yet if any man enter Heir for a time or under condition he is Heir simply and the time and condition is void but not the Entry it self To the Third albeit regulariter Minors Leased may be Restored yet that hath its Exceptions as a Minor being Denunced Rebel and his Escheat fallen or thereafter his Liferent or bearing in Non-entry either simply or through a wrong or informal Infeftment he would never be restored against these Casualities so neither against the taking of Seasine in so far as may infer Recognition 2ly There could be by the Seasine no Lesion at that time Cranburn being then but his Mothers second Son and not alioqui succâ—ssurus to the half of the Estate as now he is neither is ever Lesion interpret by the prejudice of any part of a Deed unless there were Lesion of the whole as if Lands were Disponed to a Minor with the burden of Debts he could not reduce the burden of Debts as to his Lesion unless thereby the whole Disposition were to his Lesion The Lords Repelled these three Defenses Rig of Carberrie contra His Creditors Eodem die THE Creditors of Carberrie having obtained a Decreet against Carberrie and Denunced him thereupon pursues for Annualrent since the Denunciation conform to the Act of Parliament thereanent The Defender alleadged Absolvitor First Because the Horning was manifestly null he being Denunced in the Name of Richard the Usurper after he was out of his pretended Authority 2dlie Because the Decreet being Suspended a fifth or sixth part thereof was taken away 3dlie The Denunciation was not at the Cross of the Regality of Musselburgh where he dwells but at Edinburgh 4lie Before the Dâ—nunciation he had given in a Bill of Suspension whereupon there was a Deliverance given superceeding Execution till the Bill were seen and answered in the mean time these Pursuers getting the Bill to see proceeded to Denunce The Pursuers answered to the first that it was nottour and attested by the Keeper of the Signet that Richard was repute in Scotland to be in his Authority till the 18. of May 1659. till which the Signet was open and many Letters past in his Name and this Denunciation was upon the sixth of May and the Charge in Aprile In respect whereof the Lords Repelled the first Defense They Repelled also the second Defense as to the Annualrent of what was found due by the last Decreet They Repelled the third Defense because the Usurper had cryed down Regalities and found the fourth Defense Relevant scripto vel juramento viz. That there was a Deliverance stopping Execution the time of the Denunciation Rickart contra Eodem die RICKART being Tacks-man of a Room of the Barony of Lowdoun set the same to a Subtennent for paying the Heretors Rent and so much superplus whereupon he Charged the Sub-Tennent who Suspended and alleadged that the Charger had sub-set to him as Tacks-man and was obliged to produce his Tack to him and being Warned by the Heretor he did by way of Instrument require the Chargers Tack if he any had to Defend himself thereby which he refused and the truth is he had no Tack unexpired Whereupon he was necessitate to take a new Tack from the Heretor for the whole Duty he was obliged to pay to the Heretor and Rickart before The Charger answered non Relevat unless as he had been Warned he had also been Removed by a Sentence in which the Charger would have compeared and Defended And albeit he had not compeared the Defender had this Defense competent that he was Tennent to the Chargâ—â— by payment of Male and Duty who had Right by Tack either standing or at least he bruiked per tacitam reloâ—ationem and he not Warned nor Called The Lords found the Reason of Suspension Relevant and that the foresaid Defense of tacit Relocation would not have been Relevant tacit Relocation being only effectual against singular Successors of the natural Possessor The Warning of whom is sufficient to interrupt the same not only as to them who are warned but any other Tacks-man whose Tacks are expired and therefore the
the Reason Elizabeth contra Eodem die THe said Elizabeth pursued the Executors of her Husband and insisted upon several points First she craved the Ann as belonging wholly to her seing there was no Children and the Ann being in favours of the Wife and Children the nearest of Kin could have no part thereof The Defenders answered that the Ann was introduced the time of Popery when the had no Wife nor Bairns and so did still most properly belong to the nearest of Kin who would get it if there were neither Wife nor Bairns The Lords found the Ann to divide betwixt the Pursuer and the nearest of Kin. The Pursuer insisted next and alleadged that a Bond bearing Clausses of Annualrent and Obliegement to Infeft behoved either to give a Right to the half of the Stock or else to a Terce of the Annualrents The Lords found the Clausses of Annualrent and Destination to exclude her from the Stock as Heretor and the want of Infeftment to exclude her from the Terce of Annualrent The Pursuer insisted in the next place and produced a Bond granted by her Father to her Husband and here the longest liver of them two and the heirs procreat betwixt them without any addition or termination failzing these heirs and without Clausses of Annualrents or Infeftment and therefore she claimed the whole Sum as being the longest liver It was answered that this Bond did Constitute in her only a Liferent according to the ordinar conception and interpretation of that Clause the longest liver of them two betwixt man and wife but especially heirs procreat betwixt them being mentioned which behoved to be the mans heirs who if they had existed would have had right as heirs to their Father not to their Mother and therefore the Father behoved to be Feear and the Mother only Liferenter It was further alleadged that beside the Liferent the Pursuer behoved to have right to the half of the Stock because the sum being moveable albeit the Tenor of the Bond made it payable to the Relict for her Liferent use yet she behoved to imploy it so as the Stock would remain which Stock would still be divisible betwixt the Relict and nearest of Kin as being moveable The Lords found that the Pursuer might take her choise of the Liferent or of the half of the sum but would not allow her both Iames Halyburtoun contra Lord Roxburgh Ianuary 25. 1663. JAmes Halyburtoun as Assigney Constitute by his Father pursues the Earl of Roxburgh for payment of a Debt due to his Father The Defender alleadged no Process because the Assignation was not intimate in the Cedents Life and so he was not denuded but the sum remained in bonis defuncti and behoved to be Confirmed especially seing this Assignation is a general Assignation omnium bonorum without condescending upon this or any other particular The Lords Repelled the Defense and found Process Ninian Steuart of Askoege contra Steuart nf Arnhome Eodem die NInian Steuart as heir to his Father Askoege pursues Reduction of a Transaction of a Tack which Tack was Assigned to him by his Wife and by him Transferred to Iohn Steuart heir of a former Marriage The Reason of Reduction was because the Translation was on Death-bed in prejudice of the heir The Defender alleadged Absolvitor because the Pursuer is Witnesse in the Translation which imports his consent The Pursuer answered that Subscribing as Witnesse could import no more but that the Witness saw the Party Subscribe but did not obliege to take inspection of the Contents of the Write 2ly The Pursuer when he Subscribed was minor The Defender answered that in this Case the Subscribing as Witness behoved to import consent because that very Subscription it self by the Father being sick did import a Deed done on Death-bed Especially it not being a Testament but a Writ inter vivos and for the minority the Pursuer was in confinio majoris aetatis and suffered the Defender to possess twenty years long after his anni utiles was past The Lords found the Subscription as Witnesse in this Case to import consent and being quarreled inter annos utiles they found sufficient to a minor though in Confirmation Gordon contra Frazer Iuly 3. 1663. GOrdon having Confirmed himself Executor Creditor to Forbes of Auchinvil pursues 〈…〉 Frazer his Relict for Delivery to him of the Moveables who alleadged absolvitor because the Moveables upon the Mayns of Achnivil were Disponed to her by her umquhil Husband it was answered that the Disposition was simulat inter conjunctas personas retenta possessione and therefore null It was duplyed that the Disposition was upon an onerous Cause without simulation because it bears to be in respect that by the Defuncts Contract of Marriage he is oblieged to Infeft his Wife in five Chalder of Victual out of Auchnivil for the Aliment and Intertainment of his younger Children till the age of fourteen years and because he was necessitate to sell that Land therefore he Disponed the moveables in leu thereof which is also instructed by the Contract of Marriage The Pursuer answered that this is but a provision to Children and could not be preferred to the Defuncts Creditors especially being a provision before the Children were existent and if such should be allowed it were easie upon such latent provisions in favours of Children to prejudge Creditors The Defender answered that if the Pursuers Debt had been anterior to the Contract of Marriage he might have had ground upon the Act of Parliament 1621. but this Debt was posterior to the Contract and there was no reason to hinder a Parent to provide his Children and Dispone Moveables to him in satisfaction thereof The Pursuer answered that both being yet but personal obliegements not having obtained effectual Possession the Creditor though posterior must be preferred to the Children especially if the Defunct have not sufficient Estate to pay both 2ly The Disposition is upon a false Narrative because the Lands of Auchnivil are yet undisponed The Lords found that the Childrens Disposition ought to be preferred unless the Father were insolvendo at his death in which case they preferred the Creditors though posterior and likewise found the alleadgence Relevant that the Narrative was false and so the Disposition without a Cause Isobel Mow contra Dutches of Bucleugh Iuly 7. 1663. THe said Isobel having Served Heir to William Mow her Grandsyre Charges the Dutches as Superiour to receive her she Suspends and compearence is made for certain persons to whom the Chargers Father had Disponed the Lands in question who raised Reduction of the Defenders Retour and Infeftment upon this Reason that the Retour was null Serving the Charger Heir to her Grandsyre as last Vest and Seased whereas they produced the Infeftments of their Uncle and Father as Heirs to their Grandsyre in these Lands and therefore instructed that her Grandsyre dyed not as last Invest and Seased as of Fee but her Father their
which the Lords found Relevant and Repelled the Defense but superceeded Execution until some time that the Defender might use any means he could for making this Sum to affect the Land Farquherson contra Gardiner Eodem die MR. Iames Farquherson having obtained a Decreet of Spuilzie against Iohn Gairdiner and others Gairdiner Suspends on this Reason that he medled with the Goods in question as a Souldier in a Party in Arms being then in the Regiment of the Master of Forbes under the Command of the Earl of Midletoun and therefore is freed by the Act of Indemnity The Charger answered that he oppons the Act Indemnifying only these who Acted by Warrand of any Committee of Estates or Commander or other Authority so that it is not Relevant unless the Suspender alleadge that as he was a Souldier in Arms so he had such Warrand and did apply the particulars to the publick use under which he served And it is offered to be proven that he took the Goods lybelled to his own House and made use of them to his privat use The Suspenders answered that this Reason stands Relevant as proponed because it is clear by the Act of Indemnity that all things done under any pretended Authority or Command are Indemnified and therefore there is a special Exception of privat Thefts and Robberies which confirms the Rule as to publick Pilledging in any War and if there were a necessity to every person to instruct the Command or Warrand of his Officer which was not accustomed to be in Writ the whole Act would be elusory so that it is sufficient that the thing was done in the way of a publick War otherwise all that was taken or converted to privat use of those that were either with Montrose or Glencairn might ly open to Pursuits notwithstanding of the Act of Indemnity The Lords after serious Consideration of this as a leading Case found the Reason of Suspension Relevant that the Defender needed not to prove that he had Warrant but that the Warrant was presumed if he proved he Acted with a Party in War against which they would admit no contrary Probation unless it were offered to be proven by the Defenders own Oath that he did without any Warrant converted the Goods to his own privat use Margaret Inglis contra Thomas Inglis Eodem die MArgaret Inglis having obtained a Decreet before the Commissars of Edinburgh against Thomas Inglis for giving her Security of 1000. pounds in Legacy left in her Fathers Testament and for payment of the Annualrent of the said Legacy Thomas Suspends on this Reason that the Legacy being left to be payed the one half at the Chargers marriage and the other half at the Death of the Defuncts Wife buire no Annualrent as neither doth any other Legacy much less this being in diem incertum which is equivalent to a Conditional Legacy For if the Defuncts Wife had Survived the Legatar or if she never Marry nothing will ever be due The Charger answered that this Legacy was in effect alimentar though not expresly left eo nomine and therefore ought to be profitable and that the Lords had been accustomed to give Annualrent in such cases as in the case of the Lady Otter and her Daughters The Suspender answered that the case was far different these being lawful Daughters and their Provisions being in lieu of an Estate of Land and this Charger being but a Bastard and come to that age that she may serve for her Maintainance The Lords considering that the one half of the Sum was payable at the time of the Chargers Marriage being a Condition in her own power and that it was not favourable to put her to a necessity of Marry Therefore they sustained Annualrents for that half but not for the other Brown contra Lawson Iuly 6. 1664. ALexander Brown having obtained a Decreet against William Lawson as vitious Intrometter with the Goods of umquhil William Lawson of New-milns he Suspends and alleadges the Decreet was unjustly given because it beares that he excepted upon a Disposition made by the Defunct for an Onerous Cause and an Instrument of Possession of the Goods before his Death The Charger answered that the Decreet did bear that the Suspender did judicially acknowledge that there was no true Delivery of the Goods The Lords found this collourable Title sufficient to purge the passive Title of vitious Intromission providing the Defender Confirmed within four moneths for they thought the Defuncts Disposition in articulo mortis was rather as a Testament or Legacy in satisfaction of the defenders Debt then as actus inter vivos Iohn Miln contra Hoom. Iuly 7. 1664. JOhn Miln Mason having Charged Sir James Home of Eccles for payment of a Sum of Money due by Bond he Suspended and alleadged that he had the benefit of the Act betwixt Debitor and Creditor as to personal Execution seing he had payed a years Annualrent and had consigned a Bond of Corroboration joyning the rest of the Annualrents to the principal The Charger answered the Suspender could not crave the benefit of the Act because he had not found caution for the principal and annual conform to the said Act for his naked Bond of Corroboration without Caution could not be interpret Security The Lords found the Suspender behoved to give security either by Caution or Infeftment Ogilbie and Grant contra Ker. Eodem die THere being a Charge in the Name of Iames Ogilbie and William Grant contra Mr. Andrew Ker Minister on this ground that by a minut of Contract of Alienation Ogilbie had sold to Ker certain Lands and Ker was expresly Bound by the minut to pay this Grant and others in part of the price of the Land certain Debts due by Ogilbie to them Ker Suspends upon this Reason that he had satisfied Ogilbie and obtained his Discharge Grant answered that by the foresaid Clause contained in the Minut he had acquired right to the Sum in satisfaction of his Debt which Ogilbie his Debitor could not take away without his consent especially seing the Minut took effect and the Suspender by his Missive Letters after the Date of this Discharge Writ to the Laird of Pitmeddin who was Cautioner to Grant that he would satisfie the Debt The Suspender answered that the Clause in favour of Grant who was no Contracter could not give him a Right First Because it was never a delivered Evident to Grant 2ly Because it was but a Mandat whereby Ogilbie the Contracter did order a part of the Sum to be payed to Grant which Ogilbie might recal at his pleasure as he might have annulled the Bargain and destroyed the Writ especially seing nothing had yet followed And as for the Letters they were not Written to Grant but to a third Party The Lords found that seing the Bargain took Effect the Clause in Grants favour was not a simple Mandat but a Delegation whereby Ogilbie constitute Ker his Debitor to be Debitor to Grant his Creditor which needed
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 â—b 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
First That the foresaid Priviledge which sometime did belong to all Monestries was by Pope Adrian the fourth limited to the Cistertian Order Templars Hospitillars and that for such Lands only as they had before the Lateran Counsel So that the Suspender cannot injoy that Priviledge First because he cannot instruct the Lands to have belonged to the Abbacy before that Counsel 2ly That being a Priviledge granted to Church-men is Personal and cannot belong to their Successors being ley men and albeit the said Decreet be in favours of the said Lord Newbotle yet he was Comendator of the Abbacy and so in the Title of the Order The Lords found the Reason relevant and instructed by the said Decreet and Suspended for such part of the Lands aâ— were in the Suspenders own hand Mr. William Colvill contra the Executors of the Lord Colvill his Brother Eodem die MR. William Colvill pursues the Executors of the Lord Colvill his Brother for payment of 2000. merk of Portion Contracted to him by his brother incase his Brother wanted Heirs Male It was alleadged for the Defender absolvitor because the Contract is null there being no Witnesses designed therein to the Lord Colvills Subscription but only two Witnesses expresly subscribing as Witnesses to Mr. William Colvils Subscription and other two undesigned subscribing as Witnesses but not relating to any particular Subscription The Pursuer answered that he offered to designe the other two Witnesses which was always found sufficient to take away that nullitie It were answered for the Defender that albeit the Designation were sufficient in recenti where the Witnesses were on life because use may be made of these Witnesses to improve the Write which could not hold in re antiqua where both Witnesses were dead The Lords formerly found that the Designation was not sufficient without instructing the Write by Witnesses or Adminicles for which effect the Pursuer produced several Writs subscribed by the Lord Colvill and by one of the two Witnesses that comparatione literarum might instruct the truth of their Subscriptions and alleadged further that this being a mutual Contract and unquestionably Subscribed by the one Contracter and being of that nature that he whose Subscription was unquestionable did ingadge for a more onerous cause then the other The Lords compared the hand writs and found them both alike sustained the VVrite The Pursuer making faith that it was truely subscribed by both Parties Hospitall of Glasgow contra Robert Campbel Iuly 19. 1664. THe Hospital of Glasgow having Appryzed the Lands of Silvercraige they thereupon obtained Decreet which beingâ— Suspended compearance is made for Robert Campbel in Glasgow who alleadged that he has Appryzed the Estate of Lamont from the Laird of Lamont and that the Lands of Silvercraige are a Part and Pertinent of the Lands Apprized by him whereby he stands in the Right of the Superior and offers to prove that the Lands in question are Waird and that the Appearand Heir from whom the Hospitall hath Appryzed is yet Minor and therefore the Hospitall coming in his place can be in no better Case nor the Minor but the Course of the Waird must run during the Appearant Heirs minority The Charger answered that the Course of the Waird cannot now run because the Lands are full by the Infeftment of the Appryzer who stands Infeft being received by a prior Appryzer of the Superiority without any Exception or Reservation of the Waird Duties It was answered for Robert Campbel that George Campbels Appryzing of the Superiority was extinct by Satisfaction with the Males and Duties before he received the Hospitall and so there is now place to the Second Appryzer neither can the filling of the Fee by the Appryzer stop the Course of the Waird which began before the Appryzing albeit the Appryzer be Infeft simply seing all Infeftments on Appryzings are in obedience which never imports a passing from any Right of the Superiors albeit he do not reserve the same and therefore he may make use of any Right in his Person not only as to the Casualities of the Superiority but as to the Property and his receiving in obedience is only to give the Appryzer Anteriority of Diligence Which the Lords found Relevant Sir Laurence Scot contra Lady Shenaltoun Eodem die IN an Act of Litiscontestation betwizt Sir Laurence Scot and the Lady Shenaltoun a Defense of Payment being found Relevant Scripto veljâ—ramento for Sir Laurence and not having cited the Lady to give her Oath nor produced any Write the Term was craved to be circumduced The Lords did not circumduce the Term but found that the Pursuer should have been still ready to produce his Client to Depone if the Defender made choise of his Oath Elizabeth Douglass contra Laird of Wadderburn Eodem die ELizabeth Douglass as Heir to her Goodsire and Sr. Robert Sinclar of Locâ—ermacus her Husbands pursue a Spuilzie of Teynds against the Laird of Wadderburn who alleadged absolvitor because he had Tack of the Teynds of the saids lands from the Earl of Hoom and by vertue thereof was bona fide Possessor and behoved to bruik till his Tack were reduced 2ly That he had Right from the Earl of Hoom by the said Tack which Earl of Hoom albeit his Right which he had the time of the granting of the said Tack was reduced yet he has sincepresently in his Person the Right of the Teynds of the lands from Iohn Steuart of Coldingham which being jus superveniens authori must accresce to the Defender and defend him in this Pursuit The Pursuer answered to the First Defense that the Defenders bona fides was interrupted by Process against him long before the Years lybelled 2ly Albeit there had been none yet this Author the Earl of Hooms Right being reduced in Parliament his bona fides being sine omni titulo is not sufficient neither needed the Tacks-man to be called to the Reduction but his Right fell in consequentiam with the granter of the Tacks right The second Defense It was answered that the general maxime of jus Superveniens has its own fallancies for the Reason of the maxime is that when any thing is disponed for a cause onerous equivalent to the Value thereof It is always understood that the Disponer dispones not only what Right he hath already but whatever Right he shall happen to acquire seing he gets the full Value and therefore sixione juris whatever Right thereafter comes in his Person though it be after the Acquirers Right yet it is holden as conveyed by the Acquirers Right without any new Deed or Solemnity but where that Reason is wanting it holds not as first if it appear that the Cause of the Disposition is not at the full Value then it is presumed that the Disponer only disponed such Right as he presently had or if the Disponer deduce a Particular Right as an Appryzing or Tacks c. and either Dispons but that Right per expressum or at least dispones
the Relicts part especially if their be no Heretable Debt due to the Defunct or if the Heretable Debts due by him exceed these due to him The Lords found that seing the Relict could have no benefit of Heretable Debts due to the Defunct being excluded by the Act of Parliament 1641. renewed 1662. Therefore she would have no detriment by such Heretable Debt due by the Defunct whether they exceeded the Heretable Debts due him or no. In this report it falling into consideration whether the Ann would only belong to the Wife there being no Children or half to the Wife and half to the nearest of Kin they thought it would devide equally betwixt them though it was not resâ—lvâ—d whether it needed to be confirmed or would be lyable to the Defuncts Debt Lady Clerkingtoun contra Stewart Iuly 20. 1664. THe Lady Clerkingtoun pursues the Heirs of Umquhile David Stewart Son to the Laird of Blackhall for the Sum of 2000 merks due to her Husband It was alleadged for Walter Stewart Brother to the Defunct Defender no Process because the Heir of Lyne of the Defunct David Stewart was not called in so far as David being the only Son of the second Marriage and having neither Brother nor Sister of that Marriage his Heir of Lyne could not be Walter Stewart youngest Son of the first Marriage but the Heir of the Eldest Son of the first Marriage according to Craigs Opinion de successionibus The Lords found that in this case Walter as the next immediat preceeding was both Heir and of Conquest and not the eldest Brother In this Process it was also alleadged that this Sum was a Clandestine Fraudulent Paction contrare to the Contract of Marriage betwixt the Defunct David Stewart and the Defenders Daughter whereby 10000 merks being Contracted with her in Tochar and Blackhall granted a proportionable Liferent thereto yet under hand without Blackhalls knowledge his Son was induced to give Bond for this 2000 merk to take away 2000 merk of the Tochar and it was remembred by some of the Lords that in the like Case a discharge of a part of a Sons Provision granted to his Father contrair to his Contract of Marriage was found Fraudulent and null by exception The Lords did not decyde but rather desired the Parties should agree but thought this was an unfavourable Act of dangerous consequence Petrie contra Paul Eodem die PEtrie pursues a Removing against Paul who alleadged absolvitor because she possessed by vertue of her Infeftment It was replyed the Infeftment was null by exceptionâ— as following upon a Contract of Marriage which Marriage was dissolved within year and day It was duplyed that the Infeftment behoved to stand valid being in recompence of her Tochar untill her Tochar was repayed Which the Lords found relevant unless it were alleadged that the Tochar was not payed to the Husband but in her own hands or her Debitor Scot of Braid-meadow contra Scot of Thirlstoun Iuly 21. 1664. SCot of Braid-meadow pursues Scot of Thirlstain his Curator for Compt and Reckoning who alleadged absolvitor because the Pursuer having conveened the Defender before the Sheriff to compt and Reckon and to Renunce his Curatorie he was â—hen decerned to Renunce the Office and did Compt for bygones The Pursuer answered no respect to that Decreet because it was during his Minority In which time the Defender had a competent defense that he was not comptable and for the Renunciation of the Office It was a great Lesion to the Pupil which the Curator should not have yeelded to but proponed a Defense against the same that he could not pursue his Curator to Renunce unless he had condescended and instructed malversation The Defender answered that he had just Reason to suffer Sentence because his Pupil was Irregular and medled with his own Rents by force and mispent the same The Lords Notwithstanding of the Decreet ordained Compt and Reckoning and found that the Decreet could not liberat the Curator even for his Omissions after but reserved to the Defender before the Auditor to condescend what deeds the Pupil had done before as being relevant pro tanto Alexander Livingstoun contra Heirs of Lyne and Daughters of the Lord Forrester Iuly 22. 1664. ALexander Livingstoun as Assigney to a Debt awand by the deceist Lord Forrester having charged his Daughters and Heirs of Lyne and they Renunced whereupon he pursues Adjudication Compearance is made for the Lord Forrester who produced his Infeftment and alleadged the Lands therein comprehended could not be Adjudged because the Defunct was denuded thereof before his Death and as he could stop the Apparant Heirs if they were craving themselves to be entered Heirs to their Fathers so the Adjudger in their place could not crave Infeftment The Pursuer answered the Defense was not Competent hoc loco and the Defender would not be prejudged by any Infeftment or Adjudication if he had sufficient Right And therefore as in an Apprysing he might Appryse omne jus that the Defunct had and thereupon be Infeft So he hath the like benefit in Adjudication which hath been ordinarly sustained periculo petentis The Lords sustained the Adjudication as to all Right the Appearand Heirs could have had in the Lands but not as to the Property and therefore would not decern the Puâ—â—uer to be Infeft but sustained the Decreet of Adjudication that thereby he may have Right to Reversions and Clauses resolutive or other Personal Clauses which they thought would be sufficiently carried by the Decreet of Adjudication without Infeftment and would not be prejudged by another Adjudger obtainer of the first â—nfefment but this was besyde the Ordinar Course wherein Adjudications use always to be granted periculo petentis that thereby omne jus may be carried and as in Appryzings it hath been ordinarly found that the Superior must Infeft the Appryzer to compleat his Legal diligence albeitâ—he Superior instruct that himâ—elf hath a Right to the Lands Because his receiving of the Appryzer in obedience will not prejudge his Right and it were unreasonable to force an Appryzer or Adjudger to dispute the Poynt of Rightâ— when all the Writs and Evidences are in their Adversaries hands and the Creditors being meir Strangers who upon their Appryzings or Adjudications can only have Title to exhibition of the Rights and afterward be oblidged to dispute but here the Case was notour to many of the Lords being near the Town of Edinburgh that the Lord Forrester had Infeft his Goodson in his Estate Lord Loure contra Lady Craig Eodem die LOrd Loure being Infeft in the Estate of Craig pursues for Mails and Duties Compearance is made for the Lady Craig Liferenter who alleadges she stands Infeft and in Possession of the Lands The Pursuer answered that any Infeftment as to that part thereof that was not for fulfilling of the Contract of Marriage was Fraudulent and in Prejudice of lawful Creditors and so null by exception conform to the Act of Parliament
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
Terms run in the third unpayed the Tack should expire and be null ipso facto without Declarator It was answered that notwithstanding clauses so conceived The Lords hath been accustomed to put them to Declarator in which case they have the priviledge to purge the Failzie at the Bar and if need beis the Defender will now purge The Lords found the reply relevant in respect of the conception of the Clause and would not suffer the Defender to purge for albeit in Declarators against Feues ob non solutum canonem the Lords will suffer the Defenders to purge at the Bar when the pursuite is upon the Act of Parliament yet they will hardly suffer them to purgewhere that Clause Irritant is exprest in the Infeftment so Proprietars may pursue their Tennents for failzing to pay the Duties of their Tack and to find Caution in time coming else to remove when there is no such Clauses Irritant and then they may purge but when the Clause Irritant is exprest there is far less reason they should have liberty to purge in Tacks then in Feus where the penalty is much greater Pringle of Torsonce contra Ker of Sunderland-hall February 17. 1665. PRringle having appryzed the Right of a Wodset from the Heirs of Sir George Ramsay does thereupon require and charge for the Money It was alleadged that he cannot have the Wodset Sum unless he not only Infest himself in the Wodset and renounce the same but put the Defender in peaceable possession as he did possesse the Wodsetter from whom the Pursuer appryzed and who can be in no better Case then the Wodsetter himself The purâ—uer answered that he was willing to renounce all Right and Possession but could not put the Defender in Possession because a thrid Partie had intruded himself without the Pursuer or his Authors Fault and the Wodset being but a Pledge the Hipothecar is not lyable contra vim majorâ—m but only pro culpa lata levi Therefore if a Pledge be taken away by force it hinders not the Creditor to demand his Sum. The like must be in intrusion which is an Act of force and the Pursuer who hath only his Annualrent is not oblidged to consume the same upon recovery but the Defender may do the same The Defender answered that whatever might be alleadged in the Case of Intrusion if in continent the Wodsetter had intimate the same and required his Money yet this intruder has continued a long time The Lords found the defense and duply relevant to stop the payment of the money till the possession were delivered seing the intrussion was ex inter vallo James Butter contra Gray of Balbrino Eodem die JAmes Butter having pursued Gray for payment of a Sum of Money he alleadged prescription because fourty years had run from the date of the Bond being the last of December 1624. before any Judicial Act or other interruption done thereon The Pursuer replyed that he had cited the Defender upon the first Summons upon the 24 of December 1664. which was six days within the fourty years from the date 2ly It was much more within the 40 years from the Term of payment of the Bond from which only and not from the date prescription runs quia contra non valentem agere non currit prescriptio The Defender answered that the citation on the first Summons was not sufficient unless there had been an Act of Continuation or some Judicial Act within the 40 year Because the Act of Parliament bears expresly If the Creditor follow not and take document within 40 years the Bond shall expire The Lords found the reply relevant and that the Citation on the first Summons was sufficient being within 40 years of the term of payment Sir John Baird contra Magistrats of Elgine Eodem die SIr Iohn Baird pursues the Magistrats of Elgine for the Debt of a Rebel escaping out of their Prison who alleadged absolvitor because the Rebel had the benefit of the Act Debitor and Creditor and produced the Clerk of the Bills Certificat thereupon when he was offered to Prison and being Imprisoned joyntly for an other Debt The Magistrats protested that they excepted him not prisoner for this Debt It was answered that the benefit of the Act contains an express nullitie if the Annualrents be not payed conform thereto The Defenders answered that they could not be Judge to the discharge and that upon the like case of a Protection of the Kings the Magistrats of Strivling were liberat The Lords repelled the Defense unless the Clerks attest the discharge had been first produced or shown to the Magistrats before the Prisoner was let go In which case they might either have refused him or let him goe free Marquess of Huntly contra Gordoun of Lesmore February 22. 1665. THe Marquess of Huntly as Donatar to the Forefaulture of the Marquess of Argyle as to the Estate of Huntly obtained Decreet of Parliament against Gordoun of Lesmore for payment of the Mails and Duties of certain Lands and for removing therefrom He Suspends on these Reasons First That the Decreet was null not preceeding upon lawful Citation but far fewer dayes then is appointed by Law and that he was absent and now alleadges that his Right to the Lands in question was by excambion with the Marquess of Argyle for Lands holden of the Marquess of Huntly which he had possessed thirtie or fourtie years before and thereefore if the Pursuer were dispossessed of the Lands in question he behoved to possesse him in other Lands 2ly The Decreet is null as not proceeding upon tryal of an Inquest cognoscing the Marquess of Argyle Heretable possessor five years before conform to the Act of Parliament nor could that be cogâ—oâ—â—ed because the Defender himself was Heretable possessor these years 3ly The Defenders Right from the Marquess of Argyle albeit it was post comissum crimen yet the cryme was latent proceeding upon missive Letters of his that was found out of the English hands which the Defender could not know The Pursuer answered to the whole that he opponed the Decreet of Parliament which ought not to have been Suspended by the Lords of Session who are not Judges to Decreets of Parliament who may dispence with the Dyets and Solemnities of Law and the Pursuer insists not upon the benefit of the five years possession but upon this ground that the Defenders Rights from the House of Huntlie or from Argyle were holden base of Argyle and not confirmed by the King and therefore by the Forefaulture of Argyle the Superiour who by his Right came in Huntlies place these unconfirmed base Rights fall Which the Lords found relevant and in the same Process Mails and Duties being but generally decerned without expressing the quantities The Lords ordained the Pursuer to condescend upon the quantities and gave him a term to prove Viscount of Kingstoun contra Collonel Fullertoun Eodem die THe Viscount of Kingstoun pursues Collonel Fullertoun upon the
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 Aâ—nualrent 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. 〈…〉 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 Hâ—s 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 Relâ—ct 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 aâ—thousand Pound which must be understood to be in satisfaction of this Debt in the first place nam nemo presumitur donare quamdiu debâ—t 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
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 reâ—â—ptione 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 〈◊〉 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 Interlâ—cutor adhering they allowed the Advocats to offer by Bâ—ll any new Reasons and particularly if it could be alleadged that the Debitor granter of the
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 Deâ—â—tors 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 Taâ—ite 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
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 Declaratâ—r 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 Assoâ—lzed 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 â—eretor 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
charges the Parochiners of Craufoord Compearance is made for the Bishop of Edinburgh alleadging that this was a Patrimonial Kirk of the Bishoprick of Edinburgh and so was not comprehended in the late Act of Parliament anent vaccand Stipends The Lords repelled the Defense and preferred the Collector of the Vaccand Stipends for they found the Act was general without any such exception Mr. John Thomson contra Mckitrick Eodem die MR. John Thomson pursues Mâ—kitrick for reduceing of an Infeftment of some Tenements in Dumfries upon an appryzing on these Reasons First That the appryzing was null proceeding upon a Bond without Requisition or Charge without which the Heretable Bond could not become moveable 2dly Infeftment being within Burgh was not given by the Baillies and Town Clerk 3dly That it was neither Registrate in the Town Books nor in the Register of Seasings of the Shire It was answered to the First that the Bond bare no Clause of Requisition but bore on the contrare to be payable without Requisition and so as Moveables the Defender might have poynded therefore without Charge so might Lands be Appryzed to the Second there being no Magistrats nor Town Clerk in Office at the time of this Seasine and the Defender being an Appryzer necessitat to do Diligence took Seasine by the Sheriff Clerk which was necessar and sufficient To the Third the Act of Parliament requires no Registration of Seasines within Burgh and albeit they be ordinarly to be found in the Town Books yet if that should be neglected they would not be null The Lords repelled the first Reason and found no necessity of a Charge and they had formerly repelled the second Reason in respect of the Answer made thereto and did also repell the third Reason Earl of Southesk contra Marquess of Huntlie Iuly 23. 1666. THE Earl of Southesk and the late Marquess of Argyl being Cautioners for the late Marquess of Huntly for the Tochers of the Daughters of Huntly they got an Infeftment of the Lands of Badzenoch for their relief bearing that according as they should be distrest they should have access to the Rents of the Lands in so far as might pay the Annualrent of the Sum which they should be distrest for whereupon they were Infeft in Anno 1643. And thereafter Southesk was distrest in Anno 1653. Whereupon in Anno 1655. He pursued an Action of Maills and Duties upon the said Infeftment of relieff against the said Lord Argyl who was in Possession and my Lord Argyl having long before granted an Bond of relieff to Southesk he used Horning and Caption thereupon in Anno 1655. and in Anno 1658. he used Inhibition upon the said Bond against Argyl who in Anno 1658 Entered in a new Contract with Southesk whereby in Corroberation of the first Infeftment he granted him a Wodset of the Lands of Enzie with a Back-tack by vertue whereof Southesk uplifted several years of the Back-tack Dutie Southesk now pursues the Marquess of Huntly and his Tenents for declaring of his Right and payment of the Maills and Duties it was alleadged for the Defenders First absolvitor because the Marquess of Argyl hath been Retoured to have possest the Lands of Badzenoch peaceably by the space of 5 years before his Forefaulture which was in Anno 1661. Conform to the Act of Parliament 1584. By vertue thereof this Marquess of Huntly as the King's Donatar to the Forefaulture in so far as concerns the Estate of Huntly has undoubted Right and needs not dispute what Right Southesk had before the five years It was answered for the Pursuer First That the Act of Parliament 1584 ought not now to take effect because by the late Act of Parliament 1617. Seasine and Reversions are appointed to be Registrat otherwise they are null and therefore the ground of the Act of Parliament 1584. viz. The abstracting of Evidents Ceasing the said Act it self must also cease 2dly The said Act can only take place where it is not constant what Right the Forefault Person had but that he was repute to be the ancient Heretor of the Lands but where the Forefault Persons Right is known to have been Beations Compryzing or this Conjunct Right granted to himâ— and the Pursuer for their Cautionrie presumptio cedit veritati and the Right must only be holden to be such a Right as truly it was 3dly The five years Possession being in effect a Prescription in favours of the King and his Donatar whatsoever would interrupt any other Prescription must interrupt this as if within the five years the Pursuer had intented a Reduction of the Forefault Persons Right or an Action for Maills and Duties or had required for his Sums and charged thereupon all these would be sufficient interruptions against this quinquennial Possession and would take away the presumption of Collusion or abstracting 4thly The five years possession by the Act of Parliament bears expresly to be peaceable so that if it was turbata possessio it would not be enough and being once a troubled possession by any legall interruption after the said interruption that subsequent possession ceases not to be a troubled possession though there be no furder interruption within the 5 years because interruption once used endures for 40. years Ita est Argyls possession was troubled by pursuits to compt for the Maills and Duties of these Lands upon this Right and that within a year or two before the five and likewise within the 5. year the Marquess of Argyl did corroborat this Right and in corroboration thereof granted Wodset of the Lands of Enzie for the Sums accummulat by vertue whereof the Pursuer within the 5. years was in Possessionâ— by uplifting the Back-tack Dutie which being a Cumulative Right possession thereon is valid for both The Defender answered that his Defense upon the Act of Parliament stood valid notwithstanding of all the Replyes because the Act is clear and unrepealled that 5. years peaceable possession of the Forefault Person gives the King unquestionable Right it being retoured by an Inquest as now this is And as to the troubling of the possession no Deed done before the 5 years can have any effect because as the 5 years cut off the most Solemn anterior Rights much more a Citation or other Interruption and as to the Interruptions within the 5. years they are only two one is an Inhibition against Argyl which proceeds not upon this Infeftment but upon a Personal obligement by Argyl to relieve the Pursuer neither does it at all relate to the possession nor any other Action but only as an Inhibition prohibits Alienation And as for the Contract of Wodset with Argyl it is post commissum crimen and so cannot prejudge the Donatar It was answered that albeit the Forefault Persons Deeds being voluntar post commissum crimen cannot be effectual yet where it is upon a cause anterior to the Crime viz. Argyls Intromission by the Infeftment of Relieffâ— and the distress occurring against the
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 suâ—m but in rem creditoâ—is 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 â—â—lture 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
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 Inâ—eftment 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 Restâ—iction of the Multure so that the Miln would be of little consequence without the Thirâ—e The Lords having compared the Contract and Charter found that by the Contract the Lady could not have Right to the Miln 〈◊〉 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 â—rove that it was a Barony to carry the Right of the Miâ—n or that in my Lords Infeftments there was no express menâ—â—â—n 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 Pypâ—rlaw 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 whiâ—h case they ordained the Parties to be heard thereupon and so inclined not to exclude the Pursuer upon the alleadgeance of a possâ—ssory 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 exâ—â—ude 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 â—epelled the defence and Decerned the Superiour to receive the Pursuer salvo jure â—ujuslibet 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 Ocâ—tertyre Feb. 12. 1667. IN the Declarator at the Instance of Tullibardine against Murray of Ochtertyre Dispute the first of â—ebruary 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 furâ—her 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 â—tormount 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 aâ—d both Parties being judicially called and having declared their minds concerning any such offer whereby the Earl upon his hoâ—our 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 sâ—ripto 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 â—ut 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 particuâ—ar 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
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 utiâ—ur 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 Wodseâ—s 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 ordaiâ—ed 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 propâ—io 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 â—f 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 woâ—ld 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 Achnotorâ—ch 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
that an Annualrent hath not the benefit of a possessory Judgement against a prior Annualrent The Laird of Glencorsse younger contra his Brethren and Sisters Ianuary 10. 1668. THe Laird of Glencorsse having Married his eldest Son and having Disponed to him his whole Estate with Warrandice after the Disposition he did Deliver certain Bonds of Provision in favours of his other Children unto these Children whereupon they Appryze the Lands Disponed to his Son in this Contract there was a Liferent reserved to the Father and nine thousand Merks of Tocher payed to the Father The Son pursues a Reduction of the Bairns Infeftment and Bonds in so far as might be prejudicial to the Disposition granted to him upon this Reason that the Bonds were no delivered Evidents before his Disposition It was answered that they were valide though not Delivered because the Fathers Custody was the Childrens Custody especially they being in his Family both at the time of the Subscribing of the Bonds and of the making of this Disposition and it was â—ever contraverted but that Bonds granted by a Father to his Children though never Delivered during his Life but found amongst his Writs after his Death were valide both to affect his Heirs and Executors The Pursuer answered that his Reason of Reduction stands yet relevant notwithstanding the answer because albeit it be true that Bonds Dispositions and Provisions in favours of Children are valide when they are Delivered by the Parents in their Life or if they have remained uncancelled in their Hands till their Death yet till Delivery or Death they are still pendent Ambulatory Rights and may always be recalled at the pleasure of the Granter and any Deed done by him expresly recalling them or clearly inferring his mind to recall them doth annul them before Delivery ita est the Pursuers Disposition bearing expresse Warrandice against all Deeds done or to be done by the Father granter of these Bonds doth evidently declare his mind that his purpose was not that these Bonds should affect these Lands otherwise he would either reserve the Bonds or a power to burden the Lands and if this were Sustained no Contract of Marriage Disponing the Fee to a Son could be secure it being easie to grant such Bonds and to keep them up above the Sons Head and therewith to affect the Fee yea it would be sufficient against any Stranger unlesse it were for an Onerous Cause 2kly There is not only a Revocation but these Provisions were no Debt of the Fathers prior to the Sons Disposition or Delivery for albeit the date be prior yet the time of their becoming a Debt is only Death or Delivery and therefore all Debt contracted or Deeds done by the Father before his Death or Delivery of the Bonds are prior as to the Obligation thereof to the Bonds so that the Sons Disposition is truly prior as to its Obligations to these Bonds The Defender answered to the first that albeit such Bonds be Revocable before Delivery yet here there is no expresse Revocation but only presumption inserred from the Fathers giving a posterior Disposition which is no sufficient ground either â—rom the Disposition or the Warrandice for the Fathers mind might have been that he would endeavour out of his Liâ—erent or Moveables to Portion his Children and so would not absolutely Burden the Fee but yet in case he should Die or not be able to do it he would not Revock the Bonds even as to that Right which is much rather to be presumed as being much more rational and probable seing there is not any Provision or power of Provision reserved in the Contract neither is there any competent way alleadged for providing of three Children but if this Sole presumption be sufficient though a Father should Dispone his whole Estate without any Reservation of Children or to be so inconsiderat as not to except his Aliment all prior Provisions for his Life-rent undelivered should cease and become ineffectual contrair to that Natural obligation of Parents to provide their Children against which no presumption can be prevalent As to the other ground Provisions though not Delivered can be in no worse case then Bonds delivered with a Condition that the Father might recall the same which would be valid from their Date if they were never actually recalled and so must Bonds of Provision be at least as to gratuitous Deeds after their Date though before Delivery as if a Father should grant Bonds of Provision to many Children at once and should Deliver some of them before the rest if he had not Means sufficient to pay all the Bonds first Delivered could not be thought to exhaust his whole Means and exclude the other Bonds of Provision but all would come in pari passu according to their Dates except their Diligence alter the Case The Lords notwithstanding of what was alleadged found the Reason of Reduction relevant and that the undelivered Bonds of Provision though prior in Date yet posterior in Delivery could not affect the Fee interveening Here there was much alleadged upon the Onerosity of the Pursuers Disposition which came not to be considered in the Decision Grant contra Grant Ianuary 11. 1668. WIlliam Grant of Markinsh pursues a Tutor Compt against Iohn Grant of Ballandallock his Tutor in which these points being reported to the Lords whether the Tutor were lyable for the value of Services of the Pupils Tennents by Harrowing Plowing and Shearing c. And for which the Tutor received no Money but the Services in kind The Lords found the Tutor not Comptable therefore because he could not force the Tennents to pay any price for the same And as to that point the Tutor being super-expended the Pupil might be Decerned upon the Pupils own Process against the Tutor without a distinct Process at the Tutor instance The Lords found he might Parkman contra Captain Allan Ianuary 14. 1668. CAptain Allan having obtained a Decreet against Parkman a Swede Adjudging his Ship Pryze upon these Grounds that she was Sailed with three persons of her Company being Hollanders and Danes being then the Kings Enemies and because she had carried of the Enemies Goods from Bergen in Norway to Amsterdam from whence having gone to France with Ballast and being Loaden there with Salt she did also carry in to France six Barrels of Tar which was sold in France as appears by an Accompt betwixt the â—kipper and his Factor in France bearing so much to be payed of the Kings and Towns Custom of the Tar which necessarly Imports that it was sold there likewise she carried in Stock-fish being Commeatus and Counterband Goods so that having sold several Lasts of Tar in Holland and these Barrals and Stock-fish in France which are clearly Counterband Goods and being taken in her return from France having in her the product of these Counterband Goods whereupon she was jâ—â—tly declared Prize conform to the Lord Admirals Commission ordaining Ships of Allies to be taken having
Lands of Vdney whereunto their is an expresse Reservation in Favours of his Father to Dispone Wodset and grant Tacks and therefore any Deed done by his Father behoved to affect him at least the Fee of the Estate so that albeit this Letter be posterior to the Disposition of the Estate it must Burden the same and the Defender quoad valorem 2dly The Letter produced acknowledges a Wodset and payment made and it is offered to be proven that the Letter was anterior to the Disposition of Vdney so that by the Receipt of the Wodset Sums the Defunct was by the Nature and Tenor of the Rights of Wodset obliged to Resign in Favour of the Pursuer and therefore the Defender Succeeding to him by this Disposition after that obligement to Denude himself upon payment is obliged as Successor titulo lucrativo post contractum debitum to Denude himself and that the Wodset was prior to the Disposition of Vdney was offered to be proven The Defender answered that the provisions in his Infeftment could never affect him nor the Estate because there was nothing in the provision that the Estate should be lyable to the Debts contracted by the Defunct thereafter but only that he might Dispone or Wodset or Redeem for an Angel and it cannot be subsumed that the Letter produced doth import any of these but at most a personal obligement 2dly Albeit it were notour that there had been such a Wodset before the Defenders Disposition of his proper Estate yet it behoved to be also instructed that it was payed before that Disposition but his Fathers Missive after his Disposition could never instruct that it was payed or payed before and yet the Defender offered to Renunce all Right he had to the Wodset Lands or to suffer an Certification and Improbation to passe against the same seing they are not extant or produced or to consent that the Lords would declare upon the Letter that the Wodset thereby was Redeemed and Extinct which last the Pursuer would have accepted providing the Defender would give a Bond of Warrandice for his Fathers Deed and his own which the Defender refused The Lords proceeded to determine the Point in jure and as to that Point anent the provision in the Defenders Infeftment some were of opinion that any Debt contracted by the Father would affect the Estate others thought not there being no provision to contract Debt but to Wodset or Dispone which was not done and all agreed that the Case being new and now very frequent required a more accurat Debate but the Lords found that the Defenders Father having by his Letter acknowledged the Wodset and the payment thereof to which Wodset the Defender had no Right that any grant of Redemption by the Father after his Disposition to his Son was probative against the Son and that the Letter being proven Holograph did instruct the Wodset to be payed and therefore sound it relevant to the Pursuer to prove that the Wodset was before the Defenders Disposition and that it did import a conditional obligement that the Father should Resign upon payment and that the Sons Disposition being after the Wodset he was lucrative Successor after that obligation contracted by the Wodset Captain Strachan contra George Morison Ianuary 17. 1668. CAptain Strachan having obtained Decreet before the Admiral against George Morison for wrongous Intromission of a Loadning of Wine belonging to the Pursuer in anno 1638. which was brought home by him in the Ship called Stulla whereof he had an eight part and the Defenders the rest and the Pursuer being Skipper did upon his own Credit buy the Wine and having brought it home the Ship was broken at Newburgh and Loadning was medled with by the Defenders whereupon they are Decerned to pay conjunctly and severally George Morison raises Reduction on two grounds first That the Decreet was unjust in so far as the Defenders were Decerned in solidum each for the whole 2dly That there was no probation of any of their Intromissions but upon the Testimony of one Witnesse and Captain Strachans own Oath taken in Supplement It was answered to the first Reason that the whole Intrometters were justly Decerned in solidum first Because this was in it self a Spuilzie and albeit the Defender did not insist within three years yet he ought not to be excluded because he was in the Kings Service all the time of the trouble and fled the Countrâ—y at the time of this Intromission 2dly Because the prescription of the priviledge of Spuilzie is only in relation to violent profits and the Oath in litem and these are only lost if pursute be not within three years but the Parties being all lyable in solidum is not lost for the Intromission remaines still a wrongous Intromission and is not in the same case as a Vindication and Restitution of Goods in the Defenders hands without Violence or Vice and in many cases correi are lyable in solidum as Tutors or where the Intromission is joynt or promiscuous for it were against reason if there were many vitious Intrometters that the particular Intromission of each of them behoved to be proven which oft times is impossible as in the same case and likewise socij are lyable in solidum and here was a co-partnery betwixt these Parties It was answered for Morison that there was three years elapsed since the Kings Restauration before any pursute and though that had not been there is nothing that can stop that short prescription and therefore infancy or minority hinders not the course thereof and in this case the Decreet in question restricts to wrongous Intromission As to the second all the priviledges of Spuilzie are lost by the prescription and it was never found at any time that in wrongous Intromission the Parties were all lyable in solidum especially where the thing Intrometted with was divisible as Wines and as to the alleadged co-partinery there was nothing Lybelled thereon The Lords did not consider the poynt of co-partinery but found that in wrongous Intromission each Intromettor was not lyable in solidum but a joynt Intromission proven against many did inâ—er against each of them an equal share unlesse the Pursuer proved that they Intrometted with a greater share and found not a necessity to prove against each of them the particular quantity of their Intromission Walter Stuart contra Robert Acheson eodem die WAlter Stuart as being infeft in the Baronie of North-Barwick and being charged for the whole Taxation thereof Charges Robert Acheson for his Proportion according to the Stent Roll who Suspends on this Reason that his Interest is only Teinds which is only applyed to the Kiâ—k whereof he produces the Bishops Testificat and therefore by the exception of the Act of Convention he is free The Charger answered non relevat because the Suspender ought to have conveened at the Dyet appointed by the Act of Convention for making of the Stent Roll and there have instructed that his
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 Eâ—phan 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 â—aked 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
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 necesâ—ar 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 â—nd 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 nâ—t for the Damnage and Interest neâ—â—her 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 Halâ—eriot Sold by my Lord to the Charger conform to a Minut produced The Charger answered that the Reason was not relevant unlâ—sse 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 behâ—ved 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
Suspenders Oâ—th or VVrit The Lords fâ—und that the granting of the Bond was no Hâ—mologation of the Decreet but that â—e 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 â—f in consideration of the Grounds upon which he might quarrel the same he had gâ—â—â—en an abatement by Arbitration or otherwise that he could not quarrel the same and found it only probable by his Oath or â—â—rit 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 Archiâ—alds Compt Books who alleadgen nemo tenetur edere instrumenta sua contra se ad fundandam â—item 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 Suiâ—ty 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 Harâ—ries Lands wherein he altered the former Substitution of his Children in several Bonds and paricularly of a Bond of 5000. Merks granted by Whitehead of Park payable to himself and after his Decease to Helen Dickson his youngest Daughter who was Married to Ballenden of Newhal and by the Inventar the Substitution was altered and the one half of the Bond appointed to pertain to Elizabeth now Spouse to Sir George Mckenzie and the other to Helen and Michael to prove that the samine was Holograph because it wanted Witnesses there was produced for Adminicles the Copy of it written by Iohn Kelloes Hand Hartries Nephew and an judicial Instrument containing the Tenor of it by way of Transumpt but there was some words of difference between the Instrument and the Copy which was Subscribed by Iohn Ramsay Hartries Good-brother and Mr. Iohn Pringle Hariries Good-son who and several others being adduced as Witnesses 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 restitâ—endus 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
Article of the Libel whereby Iohn Bosewel craved Repetition of what he was stented for for Charges of Commissions to the Convention of Burrows upon this Ground that the Convention of Burrows was authorized by Acts of Parliament and Commissioners is ordained to meet yearly thereat which being a burden arising from the Authority of Parliament these who have Tenements in the Town or Lands in the Burghs Lands are lyable pro rata and did again resume the Debate anent the second Ministers Stipend and being heard thereupon in presentia The Lords adhered to their former Interlocutor anent the Teinds and found nothing could make Iohn Bosewel lyable for any part of the second Ministers Stipend except what was due by Law out of his Teinds or what was due by his own consent or by custom of 40. years and found him not lyable for Charges of Commissioners of Burrows which though authorized by Parliament yet the intent thereof was Trading and though the Convention might equalise the proportion of Taxations amongst Burghs which did concern all having Land therein Yet that being a case meerly contingent they would not upon consideration thereof put any part of the burden upon these who had no Trade Iohn Boswel contra Lindsay of Wormistoun February 3. 1669. John Bosewel being appointed Commissar of St. Andrews by the King and before the Restitution of Bishops after their Restitution the Arch-bishop named Lindsay of Wormistoun Commissar and agreed him and Iohn Bosewel on these Terms that Iohn should have the half of the profit of the place whereupon Wormistoun grants a Bond to Iohn Bosewel to Compt and Reckon for the Profits of the half and to pay the same to Iohn Bosewel termly and quarterly and if any question should arise betwixt them in the Accompt that he should submit himself to the Arch-bishops determination and acquiesce therein Iohn Bosewel Charges upon his Bond. Wormistoun Suspends It was alleadged for Wormistoun that his Bond did contain a Submission to the Arch-bishop who is thereby the only Judge Constitute in these Accompts It was answered that this Bond was only Subscribed by Wormistoun himself and a Submission must be Subscribed by both Parties and that it behoved to be understood to last but for a year and not to import a Liferent Submission neither could it be exclusive of the Lords to decline their Authority The Suspender answered that this Submission being a provision in the Bond Charged on Which Bond being accepted by the Charger his acceptance makes his consent to the Submission in the same way as if he had Subscribed the same And there is no Law to exclude a Submission for two years or a Lifetime more then for one and it is not a declining of the Lords Jurisdiction it being most ordinarly sustained no Process because there is a Submission standing The Lords found that there is here a Submission not ending by a year and accepted by the Charger and that thereby the Arch-bishop in the first place ought to give his Sentence which if he refused or if it was iniquous the Lords would cognosce thereupon as in the case of other Arbiters and Assigned therefore to the Arch-bishop the first of Iune to determine thereupon Kilburnie contra Heirs of Tailzie of Kilburnie Eodem die THe Laird and Lady Kiburny did insist in the Declarator against the Heirs of Tailzie Dispute the 20. of Ianuary and according to the Interlocutor then given gave in a condescendence of Kilburnies Debt amounting to fifty one thousand pound and that the Rent of the Land did not exceed thirty six hundred merks It was alleadged that the Annualrents were here accumulate for five years after Kilburnies Death which ought not to be the Lady having Possession of the Lands and ought to have payed the Annualrent and the Clause impowering her to Sell is only for satisfying Kilburnies Debt due the time of his Death which cannot extend to Annualrents due after his Death and that these Annualrents were truly payed by the Lady and so could not come in as a Debt upon the Estate 2dly The Moveable Debts ought to be satisfied by the Executory which must first be Exhausted the Lady her self being Executrix and so cannot burden the Heirs of Tailzie or the Estate for if they had been Distrest they could have craved payment from her quoad vires inventarij so that the principal Sums not extending to 40000. Pounds and the Lands being Bought by Greinock at the Rental of 4000. Merks and 20000. Merks being gotten more for the Lands then the Debt the power of Selling granted to the Lady in the Disposition can never extend to so vast a difference albeit a small difference of the price would not be noticed and lastly it was offered to find a Party who would take a Wodset of the Lands in satisfaction of all the Defuncts Debts so that the Lady cannot in prejudice of the Heirs of Tailzie Sell where Wodsetting may do the turn and the Wodset should contain a Reversion and no Requisition and whereas it might be pretended that the matter was not intire because the Lands were actually Sold to Greinock he offered to Consent and Renunce his Bargain It was answered that this Clause de non alienando being against the nature of Property was odious and not to be extended and the faculty of Selling or affecting being suitable to the nature of Property was favourable and not to be restricted further then the Defuncts own Words and Termes who having given full power to his Daughter to Sell or affect the Lands named for payment of his Debts and not having said to Sell or burden so much of the Land as were equivalent to the Debt neither having said so much of the Debt as exceeded his Moveables or his Moveables being first exhausted it is most rational and to be presumed to be his meaning that as to his Moveables he did not burden her at all and that this part of his Lands he set apart for his Debt for he understood his Debt to be about the value of it otherwise he could have set apart less Land or could have more limited the Faculty 〈◊〉 Disposing but the principal Sums of this Debt being 40000. Pounds and the Rental not being pretended to have been above 4000. Merks the principal would amount to the value of the Land at 15. years Purchase and there being unquestionably a latitude to the Feear to Sell at such a Price as in discretion he thought fit though he had sold at twelve years purchase or not under the lowest Rate of Land neither could the Buyer be quarrelled nor the Seller as incurring the Clause irritant and therefore the Lady having Sold at a far greater Rate then the ordinar Greinock and the Town of Glasgow being both dealling for the Land they to make a Harbour there and he not to suffer them in prejudice of his Town and Harbour in Greinock there is no reason to exclude the Lady from the benefit of her
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 â—on 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 eâ—nâ—ra 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 Magistrâ—tes 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
from the Marquess of Hamiltoun upon Blackwoods Resignation and upon the Resignation of two Apprizers in Anno 164â— The Marquesse then having a Right to the Superiority granted by the King in Anno 1636. Which albeit it was not then valide because the Lands were then annexed to the Crown by the Act of Parliament 1633. and were not Dissolved yet the Major having taken Infeftment as to his part his Heirs could not quarrel the Superiority though the King might and now the King and Parliament by the Act 1661. having declared such Rights of Superiority valide as to these Vassals who had or should Consent and the Duke having gotten a new Right of the Superiority since the Act the former Consent is valide Likeas William Lowry Blackwoods Father and Tutor gave a Bond that so soon as the Duke should obtain the Superiority the Son should become Vassal The Defender alleadged that his Fathers Bond was only effectual against his Father but not against himself and his Father never being Feear of the Estate his Bond could never be a Consent of the Vassal neither can the Consent of any Tutor or lawful Administrator be sufficient to give such a Consent which is not an Act of Office or Administration and as to the Infeftment taken by Major Ballantine First The simple taking of Infeftmen from a Lord of Erection by the Vassals of Kirk-lands cannot import their passing from the King and the benefit of the Act of Annexation so that they may not return to the King thereafter neither can it be such a Consent as it is meant in this Act of Parliament otherwise the King and the Leidges should both losse the benefit of the Annexation seing most part of the Vassals have continued to take Infeftment of the Lords of Erection through ignorance or inadvertance finding their Infeftments flowing from the Lords of Erection and in respect that the Lords of Erection have still Right to the Feu-duties till they be Redeemed which being a common Error that they may safely so do till the Redemption and yet may still take Infeftment from the King when they please it were a very evil consequence if thereupon they should not only lose the benefit to be Vassals to the King but by disclamation lose the Property 2dly As to this case it cannot be presumed but Major Ballantine is in the same case with other Vassals of Kirk-lands and also in this much better case that he is in a manifest and palpable Error in so far as the Disposition that he takes from the Apprizers bears expresly that the Apprizers are informed that the Marquess of Hamiltoun was Superior and their Procuratory bears warrand either to Resign in the Kings hands or the Marquess hands or in the hands of any other lawful Superior and Blackwoods Procuratory in the Contract of Marriage bears warrand to Resign in the hands of the King the Marquess of Hamiltoun or the Earl of Roxburgh who had Right of Erection before the Marquess or any other lawful Superior so that by Resigning in the Marquess hand it is evident that the Resigner and the Major believed that the Marquess was Superior whereas he was not any Right he then had being absolutely null by the Act of Annexation 1633. and the King was the only Superior yea by the taking of that Infeftment he incurred disclamation unless it were excused by his error but the Consent requisit here must be such as the Party knowing the King was his Superior did choose to interject another Superior and become his perpetual Vassal It was answered for the Pursuer that the acceptance of the Infeftment as it is now stated can be no Error because it is evidenced by the Apprizers Rights now produced that they hold of the King and were Infeft by him and yet the Major took the Infeftment upon their Resignation in the Dukes hands likeas the Rights produced relate to the Right of Annexation which being a most publick Law and recent at that time cannot be thought but to be known to any at that time ignorantia juris neminem excusat It was answered that the Error was the greater that the Apprizers Infeftment was holden of the King seing in their Disposition and Procuratory they mention they were informed the Marquess was Superior and therefore the Procuratory is to Resign in the hands of the King the Marquess or any other lawful Superior and the other Procuratory is in the like Terms so that the Accepter of the Writs did not intend nor do any new or free Deed in favours of the Marquess but did only that Deed that they supposed was necessar and so did not by this Infeftment make the Marquess Superior as that his Right should be valide by their Consent but did take the Right from the Marquess as being Superior before they took it which was an palpable Error so prejudicial to them that it might infer disclamation if it were not excusable upon Error and if it had been intended that the Major minded to make the Marquess his Superior where he was not there is no doubt but it would have been exprest in the Right it self being so great a deference to the Marquess and would not have been past over in common Form neither can it be thought that this was procured by the Marquess upon accompt and favouring the Major the Infeftment being granted by the Lady Marquess as her sons Commissioner he being then in England and having no great influence then being the time of the Troubles of the Countrey It was answered that the other Vassals of that Barony did voluntarly Accept the Marquess as their Superior and gave Bonds for that purpose which are produced and it is most like that Blackwood hath given Bond which hath been lost or given up to him upon taking this Infeftment which is an implement thereof The Lords did not see that the single taking of the Infeftment from a Lord of the Erection did import his Consent to become Vassal thereby for ever or that he might not thereafter return to the King neither did they find such a Consent as is meant in the Act of Parliament but considering the whole Circumstances of this Case and especially the Fathers clear Bond who procured and settled the Controverted Right of this Estate for his Son then an Infant they found there was no Error but a choise of the Marquess to be Superior in place of the King and therefore declared Lesly contra Cunningham Eodem die LEsly having Arrested certain Sums for payment of a Tack-duty due to him It was alleadged for the Party in whose hands Arrestment was made that the Arrestment could not reach any further then for the Tack-duty Arrested which was due the time of the Arrestment but not for any Term following the Arrestment because Arrestment being a Legal Execution can no more proceed upon a Debt before the Term that the Debt be due then Apprizing and further alleadged that they had made payment of
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 Arbitâ—ators 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 râ—st 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 inâ—er 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 cognosâ—e 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 Laâ—ellethem 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 〈◊〉 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 Lâ—bour 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 Alexâ—nder 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
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 Oâ—erous 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 â—ears 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 Creiâ—htoun 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 transâ—ert 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
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 Conâ—igner 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 â—eir 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 theâ—meaning and intention of the Father must be considered by his Provision inter liberos which is clear to have been that Archibald should not both have his Estate and these Lands of Corrowa but that the same should descend to Alexander and if Thomas had been then Born he would no doubt have provided that failzying of Alexander Archibalds Portion should fall to Thomas and if he had declared that the Lands of Corrowa should only belong to the Heirs of Line it would undoubtedly have excluded the Heirs of Conquest He has done the equivalent for having provided the Lands to Archibald and his Heirs whatsomever he does by a posterior explicatory Clause declare that if Archibald died without Heirs of his Body Alexander should be Archibalds Heir therein notwithstanding of any Law or Custom to the contrare which can have no other meaning then that notwithstanding by the Law Iohn as Heir of Conquest would Succeed to Archibald wanting Heirs of his own yet Alexander the younger who would be Heir of Line should Suceeed which is as much as to say that this Provision should belong to Archibalds Heirs of Line and not to his Heirs of Conquest and consequently having made no mention of Alexanders Heirs he did also mean Alexanders Heirs of Line who is the Pursuer Thomas and the case is so much the more favourable that if this failed Thomas hath neither Provision nor Aliment The Lords considering that both Parties were
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 conâ—â—vance It was answered that decennalis triennalis possessor non tenesur docere de tâ—â—uâ—o 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
was found not jure accrescendi to belong to the Surviver but 〈◊〉 Heir Substitute to the Deceassing without Children yet so as not to be lyable as Heir in solidum but quo ad valorem Iuly 3. 1666. Fleming contra Fleming A Clause in a Writ bearing a Narrative as a Testament and leaving such a 〈◊〉 Heir and Donator to such Tenenements and Assigning him to the Evidents with power to him after return to Recal was found effectual though not formal to inforce his Heir to perfect the same Ianuary 31. 1667. Henrison contra Henrison The same was renewed upon full debate November 4. 1667. and the being of the Writs in the granters hands after his Retuâ—n was found a sufficient Evidence of Recalling it but its coming back in the hands of the other party was found not sufficient to Revive it but they were ordained to instruct how they came by it whether as delivered back again by the Granter or found amongst his Papers November 14. 1667. inter cosdem A Clause obliging a party to pay such a sum as being the Annualrent of such a sum without any obligation for paying the principal exprest was found not to imply an obligement to pay the principal as acknowledged due but was found to constitute the Annualrent perpetual and not for the Womans life though it exprest not Heirs and Assignâ—ys February 2. 1667. Power contra Dykes A Clause in a Bond bearing a sum to be lent by a Father for himself and as Administrator for his Son aâ—d payable to the Father and after his decease to the Son but bearing that it was the Sons own Money not expressing how or from whom it came was â—ound to constitute the Son Feear and the Father Naked Liferenter February 14. 1667. Campbel contra Constantine A Clause disponing Lands was found to carry the Miln if the Lands were a Barony or if the Miln was not exprest in the Authours own Right otherways that it could not pass as part and perâ—inent February 15. 1667. Countess of Hume contra Tenents of Oldcambus and Mr. Rodger Hog A Clause in a Contract of Marriage whereby the Husband is obliged to take the conquest to the future Spouse in Conjunctâ—ee and the Heirs betwixt them Which failing the Heirs of the Mans Body which failing the Wifes Heirs whatsoever was found not to constitute the Wife Feear upon the â—ailing of Heirs of the Mans Body but the Husband February 20. 1667. Cranstoun contra Wilkison A Clause in the dispositive part of a Charter Cum privilegio piscaudi in aqua c. was found not to be a sufficient Right of Salmond-fishing unless Salmond-fishing had been thereby possesâ— forty years without interruption and so it is only a Title for Prescription February 27. 1667. Earl of Southesk contra Laird of Earlshall A Clause in a Bond bearing sums to be payed to a Man and his Wife and their Heirs beaâ—ing Annualrent though no Infeftment followed was found to give the Wifes Heirs no share seing the Money appeared not to have been hers and was presumed to be the Mans and he surviving did Revock the Substitution as a Donation betwixt Man and Wife Iune 19. 1667. Iohnstoun contra Cuninghame A Clause in an Assignation by a Father to his Daughter bearing a power to alter during his Life was found not to take effect by an Assignation to a third party who instantly granted a Back-bond bearing his Name was but in trust to do diligence and obliging himself to denude in favours of the Father his Heiâ—s and Assigneys but was not found to operate for the Fathers Heir but for the Daughter his Assigney Iuly 17. 1667. Scot contra Scot. A Clause in a Tack setting 14. Aâ—kers of Lands presently possest by the Tacks-man was found not to limite him to 14 Aikers of any present Measure seing he had possessed still since the Tack these 30. years albeit it was alleadged that besides 14. Aikers there were six Aikers severally â—enned and possest by different persons before that Tack Iuly 19. 1667. Daeâ— contra Kyle A Clause in a Bond bearing a sum borrowed from Husband and Wiâ—â— and payable to the longest liver of them two in Conjunctfee and to the Heirs betwixt them or their Assigneys which failing to the Heirs or Assigneys of the last liver was found to constitute the Husband Feâ—ar and the Wife Liferenter albeit she was last liver and the Heirs by the last Clause were but Heirs of provision to the Husband in case the Heirs of the Marriage failed Ianuary 26. 1668. Iustice contra Barclay his Mother A Clause in a Bond whereby a Woman obliged her self to enter heir of Line to her Father and to resign certain Lands in favours of her self and the heirs of her body which failing to the heirs of her Father and obliged her self to do nothing contrary to that Successionâ— whereupon Inhibition was used before her Marriage was found effectual against her and her Husband whom she Married thereafter and disponed the Lands to him and his heirs as being a voluntar deed without an equivalent cause onerous albeit by the said Bond of â—ailzie the heir of provision behâ—ved to be the heir to the Woman her self without discussing whether deeds done for causes onerous without collusion would be effectual against the said heir of provision Ianuary 28. 1668. Binnâ—â— contra Binnie A Clause in a second Contract of Marriage that the heirs of the Marriage should have right to Tacks acquired during the Marriage was found to extend to a new Tack obtained of Lands then possessed by the Father unless he had a Tack thereof before in Writ which if not expyred the new Tack would not be esteemed conquest if the new Tack were given for the old Iuly 3. 1668. Frazer contra Frazer A Clause in a Testament leaving a Legacy to a second Son in satisfaction of all he could befal by his Fathers deceass was found not to be in satisfaction of a debt due by his Father to that Son as having uplifted a Legacy left to him by his Mothers Father both not being above a competent provision by a Father in his condition to his Son December 15. 1668. Winâ—â—â—am contra Eleis A Clause in a Contract of of Marriage providing all the Husbands Goods and Gear acquired during the Marriage to the Wife for her Liferent use was found to be with the burden of the Husbands debt and only to be meaned of free Gear and not to exclude the Husbands Creditors at any time contracting December 23. 1668. Smith contra Muire A CLAVSE OF CONQVEST in a Wifes Contract of Marriage who was competently otherwayes provided was â—ound to carry the Lands conquest with the burden of a sum which the Husband declared under his hand to be a part of the price though the same would not hold in the burdening of heirs of conquest December 20. 1665. Lady Kilbocho contra Laird of Kilbocho This sum was due to the Seller of the
contravention or one made up of all at the conclusion of the cause Iuly â— 1664. Earl of Airly contra Mcintosh A CREDITOR personal was found to have no interest to compeat to exclude another Creditor alleadging his debt payed Iuly 24. 1662. Shed contra Gordoun and â—yle A CROPT of Corn was â—ound not to be as a part of or accessory to the Ground or as sata solo cedunt solo so that after Possession attained by Removing against a violent Possessor warned the cropt on the Ground was found not thereby to belong to the Heretor entering even as to that part thereof which was sown after the Warning but as to what was sown after the Possessor was dispossed by the Removing and his Goods off the Ground the corn was found to accresce to the Heretor by paying the expense of the Seed and Labourage as Eatenus locupletior factus February 22. 1671. Gordoun contra Mcculloch IN CRVIVES no necessity was found for the stream to be continually free besides the Saturdays slop but that the same is commonly in desuetude and particularly in the Cruive in question notwithstanding that it be speciall in the Act of Parliament Iuly 29. 1665. Heretors of Don contra Town of Aberdene A CVRATORS Decreet obtained against him by a Minor for Liberation of the Curator from his Office upon consent of the Minor and his alleadged irregularity was â—ound not to Liberate that Curator from his Office even for Omissions after the Decreet Iuly 21. 1664. Scot of â—road-meadows contra Scot of Thirlestoun But with consideration of the irregular forcible Acts that he should not be lyable therefore but liberat pro tanto vide Minor Ibid. Curators being chosen three in number or any two of them the Mother being sine qua non and she being dead the Pupil was found sufficiently authorized by the other two he appearing judicially and acknowledging the same Ianuary 4. 1666. David and Andrew Fairfouls contra Binnâ—â— Curators or a Father as lawful Administrator authorizing Minors or Children to their own behove being Caâ—tioners for or with them was found null December 7. 1666. Sir George Mckenzie contra Fairholme CVSTODY of Money was found to liberate the Keeper where his whole means were sent for safety to a Garison and there lost and he being required to deliver the Money in custody declared that it was there and the owner might have it for sending for it without special probation as to the Money in question he giving his Oath in Supplement that it was there and was lost Iuly 19. 1662. Fiddes contra Iack vid. Novemb. 16. 1667. Whitehead contra Straâ—toâ—n DAMNAGE of a Tenement by the fall of a Neighbour Tenement was found competent against an Appryzer of a Liserent of the fallen Tenement possessing thereby February 16. 1666. Hay of Knockcâ—ndie contra Litlejohn Renewed Ianuary 13. 1666. the ruinousness of the fallen House being Proven though no Requisition to Repair it Damnage done to Victual Embarqued for the use of Merchants by the fault and negligence of the Skipper was found not to oblige the Skipper and Owners to take the Victual and pay the price but only to pay the damnage seing the Victual was not wholly corrupt but remained in Specie February 19. 1670. Leslie contra Guthrie DATE of a Bond wanting as to day moneth and year was found not to annul it seing it bear in the Body Annualrent from such a Term in such a year last by-past which supplyed the date as to the year Iune 15. 1662. Grant contra Grant of Kirkdail Date of a Discharge in a Merchants compt Book being â—nstructed by Witnesses and Adminicles was found to prove against the Merchants Assigney Ianuary 9. 1663. Skeen contra Lumsdean Date being wanting in a Writ was sustained to be astructed by a Witness insert that it was anterior to an Assignation whereupon it was admitted as a compensation against the Assigney Iune 29. 1665. Thorntoun contra Milne Date of a Writ being wanting was found not to annul it the party referring the verity of the Subscription to the Subscribers oath which was allowed with power to qualifie if it was undelivered or in minority Iuly 7. 1666. contra Duncan Date of a Writ being false was found not to infer Falsehood of the whole or nullity thereof where the Witnesses insert proved the verity of the Subscription February 23. 1667. Laird of May contra Ross. The date of a Writ was not quarrelled by the Lords as false albeit it was not Subscribed the day that it bear in respect there was a Writ of the same Tenor truly subscribed that day but being a missing the Granter a long time after Subscribed another of the same Tenor and date and the first being found and both produced in Process the user abode by the first simply and by the last as to the verity of the Subscription but not of the date which was so insert for the reason foresaid Iuly 10. 1669. Gardner contra Colviâ— DEATH of a party was found instructed by 18. years absence out of the Countrey and repute dead and a Letter produced wâ—itten by a Comrad in the War bearing that he was dead to Sustain an Adjudication upon a Bond granted by the next Heir which was to his own behove February 18. 1670. Lowrie contra Drummond DEATH-BED was not Sustained to Reduce a disposition by a Father to his Son of a Sum as prejudicial to his Heir seing by Contract with his eldest Son he reserved that power to burden the Estate to any he pleased though it bear not on death-bed yet that was not excluded nothing being there done but the designation of the Person Iune 28. 1662. Seatoun of Barns contra his Brother Death-bed was found relevant to reduce a Disposition and Infeftment of Lands to an Heir female and of line in prejudice of a Brother and Heir-male who was provided to the Lands by the Disponer with a clause with power to him to alter during his Life which was found not to extend to death-bed though he should have been proven in soundness of mind as contrary to the presumptio juris de jure that persons on death-bed are weak February 25. 1663. Hepburn of Humbie contra Hepburnâ— this clause not being in the Writ etiam in articulo mortis or on death-bed Death-bed and a Testament was found equivalent albeit the Testament was made in leige poustie and so no provision therein prejudgeth the Heir December 14. 1664. Lady Colvil contra Lord Colvil Death-bed was found not Relevant to hinder a Husband to provide a Wife with a Ioynture she having no Contract of Marriage nor competent provision nor any Terce he having only Tenements in Burgh of which no Terce is due but the Lords modified the Provision near to a Terce February 22. 1661. Rutherfoord and Pollock contra Iack. Death-bed was found not competent by way of exception or duply Ianuary 12 1666. Seatoun and the Laird of Touch contra Dundas Death-bed was found
but by a third party Iuly 5. 1662. Drummond contra Campbel A DESIGNATION of a Gleib by way of Instrument of a Nottar was not Sustained without Production of the Testificate of the Ministers Designers December 17. 1664. Paterson contra Watson Designations of Gleibs must first be of Parsons before Bishops Lands though they were Feued before the Act anent Manses and Gleibs and built with Houses so that the Feuar must purchase as much ere the other Kirk Lands be affected Ianuary 25. 1665. Parson of Dysart contra Watson Designation of one to be Tutor Testamentar by his own acknowledgement was found not to prove against him where by the Testament the contrary appeared Iune 10. 1665. Swinâ—â—â—n contra Notman Designation of a Manse was Sustained by Intimation out of the Pulpit or at the Kirk door warning the Heretors thereto as being the constant custom though some of the most considerable were ouâ— of the Countrey Ianuary 28. 1668. Minister of Hassendene contra Duke of Bucclâ—â—gh Designation of a Gleib was Sustained though done but by two Ministers the Bishops Warrand being to three without 〈◊〉 Quâ—runâ— unless weighty reasons upon the prejudice of parties were shown February 7. 1668. Minister of Cockburnspeâ—h contra his Parochioners DEVASTATION total was found to Liberate from publick Maintainance February 20. 1663. Baxters of Edinburgh contra Heretors of Eastlouthian DILIGENCE was not required of a Person whose Name was not intrusted in the Infeftment of Annualrent to make him Comptable for ommisâ—ion but only for intromission December 18. 1666. Cass contra Wat. A DISCHARGE to one of more Contutors was â—ound not to Liberate the rest except in so far as satisfaction was given by the Party discharged or in so far as the other Contutors would be excluded from Recourse against the Party Discharged December 19. 1668. Seatoun contra Seatoun A Discharge of Rent not designing the Writer thereof was found null unless the user thereof designed the Writer because it was of 80. pounds of Annualrent yearly and that thereby an Infeftment of Annualrent would be cled with Possession and preferred to another Annualrent Iuly 14. 1665. Scot contra Silvertounâ—il A Discharge being general was found not to extend to a Sum Assigned by the Discharger before the Discharge albeit it was not intimate before unless it were proven that payment was truly made for this sum February 3. 1671. Blair of Bagillo contra Blair of Denhead A DISPOSITION of Moveables was preferred to an Arrestment on an horning anterior to the Delivery seing the Disposition was before the Horning and the delivery before the Arrestment Iuly â— 1662. Bouse contra Baillie Iohnstoâ—â— A Disposition was Reduced on the Act of Parliament 1621. as in fraudem creditorum though the Disponer was not Bankrupt and that he had reserved the power of a considerable sum to sell Land to pay his debt which the Creditors might affect seing the Creditors ought to have Preference according to their Legal diligence on the whole Estate till payment February 6. 1663. Lord Lour contra Earl of Dundee Dispositions of Heretable Rights are only Reducable upon the Act of Parliament against Bankrupts and not by exception or reply though betwixt Father and Son in re parvi momenti viz. 100. pounds Iune 19. 1663. Reid contra Harper A Disposition by a Husband to his Wife of an additional Ioynture she being sufficiently provided before was found Reduceable at the instance of anterior Creditors albeit the Husband was no Bankrupt but because he had no Estate un-liferented or affected albeit the Reversion was much more worth nor the Creditors Sums but the Relick offering to purge the prejudice by admitting the Creditor who had appryzed to possess Lands equivalent to his Annualrent he Assigning to the Relick what he was satisfied by the Ioynture Lands and with this provision that if the Legal expired she should not be absolutely excluded The Lords found the offer sufficient February 10. 1665. Lady Craig and Greenhead contra Lord Loure A Disposition omnium bonorum without any cause onerous and without delivery was found not sufficient to exclude the necessity of Confirmation and paying of the Quote Iune 23. 1665. Procurator-fiscal of the Commissariot of Edinburgh contra Fairholm A Disposition omnium bonorum though with possession was â—ound not to exclude the Quote and Confirmation seing it bear a â—eversion to the Disponer during his Life to dispone of the Goods notwithstanding Iuly 4. 1665. Commissar of Saint Andrews contra Laird of Bousie A Disposition of Land was found to carry all Right that was in the Disponers Person and to import an Assignation to a Reversion which needed not intimation seing the Seasine was Registrat in the Register of Seasines December 5. 1665. Beg contra Beg. A Disposition of Lands was found imported by an Assignation to the Mails and Duties in all time coming against the Heir of him that granted that Right and that the Heir was obliged to renew a compleat legal Disposition with a Procuratory of Resignation and Precept of Seasine Iuly 2. 1667. Sinclar of Hirdmanstoun contra Cowper A Disposition by one Brother to another of his whole Estate bearing for satisfying of his debts enumerat and containing a power to the Purchaser to satisfie what debts he pleased and to prefer them was found valide and not fraudulent in so far as extended to the Purchasers own Sums due to him and for which he was Cautioner for his Brother as if it had born these to be paid primo loco and thereupon one of the Creditors whose debt was enumerat in the Disposition was postponed to the Acquirers own debt and cautionry till they were first satisfied Ianuary 8. 1669. Captain Newman contra Tennents of White-hill and Mr. Iohn Prestoun A Disposition was Reduced because given by a weak person to him who was lately her Tutor ante redditas rationes and done of the same date with a Contract of Marriage whereby she was married to his Nephew who got the Disposition and died ere he was Married albeit he who got the Disposition was her Mothers Brother who Educat and Alimeâ—â—ed her and the Pursuer of the Reduction was her Grand-Fathers Brothers Son who had not noticed her but she was an ignorant person half deaf February 18. 1669. French contra Watson A Disposition of Moveables in Writ bearing onerous causes expressing a Sum and others generally was fouâ—â— not to prove the cause onerous by the Narrative being 〈◊〉 dulent leaving nothing to other Creditors nor 〈…〉 by the Acquirers Oath but also by the Oaths of the 〈◊〉 whom payment was made November 18. 1669. Henderson contra Anderson A Disposition of Lands bearing the Buyers Entry to be at Whitsonday and to the Cropt of that year was found not to extend to the Cropt of Corn that was Sowen and standing on the Ground that year the time of the Buyers Entry or to any part of the Rent payable for the Land fâ—om the Whitsunday before to
the Whitsâ—nday 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 Birkenâ—â—g 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. Guâ—hrie 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 oâ—n 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 Doâ—atio 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. Mâ—gil 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 Murâ—ay 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 Hâ—â—band 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 Oldâ—aâ—â—us 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. Chisâ—holm 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 proâ—ided to their Daughter which was not â—ound 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 fiâ—st additional Ioynture the same was Sustained Iuly 18. 1671. Countess of Cassils contra Earl of
Liferenter seing the whole Estate was either affected with the Liferent or the remainder thereof was appryzed from the appeared Heir for the Defuncts debts exceeding the value thereof February 13. 1662. Brown contra Liferenters of Rossie An Heir apparent was allowed to have Aliment of his Grand-Father though he had voluntarly infeâ—t his Son the Pursuers Father and though the Pursuer had a stock of Money Liferented by his Mother here the Grand-Father was Iately fallen to a plenteous Estate Iune 17. 1662. Ruthven Feâ—ar of Gairn contra Laird of Gairn An Heir apparent taking Right to Land from his Grand-Father was found not to enjoy the priviledge of a singular Successor and to be in no better case as to that Right than his Grand-Father albeit his Grand-Father was living and the Oye then not immediate Successor Iuly 23. 1662 Lord Frazer contra Laird of Phillorth An Heir Apparent was found to have Right to the Rents of â—is predecessors Lands although he dyed before he was Infeft and that the next Heir intrometting with the Reâ—â—s of the years that the former appearand Heir lived was lyable to pay the said appearand Heirs Aliment in so far as he Intrometted December 20. 1662. Lady Tarsappie contra Laird of Tarsappie An Heir apparent pursuing for Inspection ad deliberandum was found not to have interest to cause a party compt and run Probation that he might know the condition of the Herâ—tage though there was a contrary Decision observed by Dury March 16. 1637. Hume contra Hume of Blacketer seing the ordinary course since hath been contrary Iune 22. 1671. Lâ—sâ—ies contra Iaâ—â—ray HEIRS IN A TACK found not to require service but that such as might be served Heirs might enjoy the benefite thereof Iune 17. 1671. Boyd contra Sinclar HEIRSHIP MOVEABLES was found competent to one who was infeft in Lands and though the same was appryzed and the Appryzer infeft yet the legal was unexpyred and the appryzing stood but as a collateral Security not as a full Right February 26. 1663. Cuthbert of Draikies contra Monroâ— of Foulâ—s Heirship moveable was found to belong to an Heir of person who dyed only infeft in an Annualrent Iuly 19. 1664. Scrymzeour contra Executors of Murray Heirship moveable was not found competent to a person who was only Heir apparent of Tailzie and dyed never Infeâ—t Ianuary 27. 1666. Collonel Montgomerie contra Steuart Heirship moveable being renunced from the Heir of Line in favours of his Father was found not to return to him after his Fathers death but to belong to his Fathers Executors 〈◊〉 18. 1666. Pollock contra Rutherfoord Heirs 〈◊〉 clause AN HERETABLE Obligement quoad creditorem may be moveable quoad debitorem Iuly 25. 1662. Nasmith contra Iaâ—â—ray An Heretable Sum was found so to remain notwithstanding of a Requisition not being made conform to the clause of Requisition and so null as being provided to be required by the Husband with consent of the Wife whose consent was not adhibite nor was the showing the Creditors intention to require his Money enough not being made debiro modo Ianuary 18. 166â— Steuart contra Steuarts An Heretable Bond was found moveable by a charge thogh but against one of the Caâ—tioners Ianuary 24. 1666. Montgomery and his Spouse contra Steuart An Heretable Bond bearing a clause of Annualrent was found not to be moveable though the principal sum was not payable till the debitors death seing the first Term of payment of the Annualrent was past Iuly 31. 1666. Gordoun contra Keith Vide Bond Iune 28. 1665. and Iunâ— 26. 1668. ONE HOLDEN AS CONFEST was reponed against a Decreet of an inferiour Iudge albeit a Procurator compeared and took a day to produce him but without a Procuratory or proponing any Defense that might show any Information of the cause and so no warrand to compear November 24. 1665. Chalmers contra Lady Tinnel Holden as confest was not admitted against a Defender absent where the Messengers Execution did not bear personally apprehended but that the Messenger knew that the Defender was in his House but was forcibly keeped from access by his Wife Iuly 5. 1670. Lindsay and Swintoun contra Inglis AN HOLOGRAPH Discharge was found not to prove its date against an Assigney unless it were astructed by Adminicles or Witnesses that knew it subscribed of that date Ianuary 4. 1662. Dickie contra Montgomery A Holograph Writ proves not quo ad datam yet the date may be astructed by Witnesses above exception but persons of ordinary credite one of two being a Towns Officer were not found such Witnesses albeit no exception was competent against them for being ordinary Witnesses Iune 21. 1665. Bradie contra the Laird of Fairny Holograph was found proven by production of a Transumpt done judicially and the Oaths of the Witnesses and Friends of the Defunct who made the Wriâ— Transumed amongst his Children altering their portions and though a part of it was written by another when the Defunct was so weak that he could not write yet the writ was found holograph as to the rest but not as to this Article albeit the principal writ was lost and not produced but only the judicial Transumpt taken off when it was produced Iuly 30. 1668. Mckenzie contra Ballaâ—dine of Newhall Vide Death-bed November 14. 1668. Calderwood contra Schaw HOMOLOGATION to communicate Appryzings was found not to be inferred by the singular Successors concurring de facto against third parties unless it were proven by the singular Successors Oath that he knew of such a Bond Iuly 6. 1661. Tailzifer contra Maxtoun and Cunninghamâ— Homologation of a Decreet was not inferred by payment thereof without a Charge seing the Givers thereof were Officers having no Commission or any civil Authority Iuly 24. 1661. Iack contra Feddes Homologation of a Decreet Arbitral quoad one of many Articles of different matters was found not sufficient for the whole November 22. 1662. Pringle contra Din. Homologation of a Fathers Legacy to his Children was inferred by his Wife Confirming the Testament without Protestation not to prove that Legacy here the Wife by her Contract was provided to the Liferent of all her Husbands Moveables February 19. 1663. More contra Stirling Homologation of an Infeftment granted to a Wife in satisfaction of her Contract of Marriage was inferred by her continuing six or seven years to possess and setting several Tacks as Liferentrix where the clause in the Contract was only in general to imploy Money on Land or Annualrent and no Infeftment followed thereon nor was the Husband in possession in his Life but the Wise began the Possession albeit the acceptance of the Infeftment was to her prejudice and was not in her hand nor did the Seasine repeat that provision particularly But only according to the conditions contained in the Bond the Seasine being Registrate and the Bond still in the Nottars hand Who took the Seasine in which case the Wife was presumed to know and not
as to their Lands and Goods in Scotland though they reside and 〈◊〉 abroad and no nuncupative Testament there can exclude the nearest of kin hâ—re Ianuary 19. 1665. Schaw contra 〈◊〉 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 〈◊〉 after the stâ—le of England and that payment to the Cedent was probable by the Cedents Oath and payment also probable by Witnesses Iune 28. 1666. Momâ—rlane 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 leâ—ge poâ—stie February 21. 1663. Wardlaw contra Frazer of Kilmundie A Legacy leâ—t of 600. merkâ— and in part thereof the Executors ordained to Discharge or give Back-bond of 200. merks due to the Testaâ—rix which Bond was found to belong â—o 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 lâ—gâ—tum 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. Sprâ—â—l 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 〈◊〉 Gear as being lâ—gatum rei alienâ— seing it was presumed that the Defunct remembred his own Assignation Iune 24 1664. Falâ—â—nâ—r contra Mcdâ—wgal LICENCE to pursue was sâ—stained without Confirmation though granted after the principal Testament was Confirmed being to a Creditor Iune â—0 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 Clâ—rkingtoâ—n contra Lady Clâ—rkingtoun AFTER LIâ—ISCONTESTATION Alleadgeances instantly verified are receivable Iune 24. 1663. Bruce contrâ— Laird of Strâ—â—chan Litiscontâ—â—â—ation 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 pactâ—â— libâ—ratoriâ—m though writ was not interposed others of the parties Transactors having payed conform December 12. 1661. Hâ—pburn contra Hamiltâ—â—n of Orbiâ—â—â—um The like in restricting an annualrent to a part of the Lands â—ffected February â— 1666. 〈◊〉 contrâ— Hunter and Tennents of Cambâ— Locus 〈◊〉 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 subâ—oyned 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 Wâ—â—t drawn up â—hâ—reupon Ianuary 28. 1663. Mâ—ntgomry of Skâ—lmorly 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 vâ—rified and needed no Reduction as that a Decrâ—et against an Heretor not called was null Ianuary 16. 1663. Earl of Roxburgh contra Kinnâ—â—r 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 Forbâ—s of Tolqâ—â—â—nâ— The Lords gave warrant Summarly upon Supplication to take the person of a Bankrupt who was unexpectedly and fraudfully fled Novâ—mbâ—r 30. 1665. Creditors of Masson Supplicants The Lords albeit they are not Iudges in Causes Criminal yet they found themselves coâ—petent to Advocaâ—e a Criminal Cause of Theft but upon the old Act of Parliament of King Iamâ—s the second from â— Sheriff to the Iustice General February 21. 1â—66 contra Sheriâ—â— of Invâ—rnâ—ssâ— The Lords deposed a Writer to 〈◊〉 â—igneâ— 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 〈◊〉 object against the Groâ—nds 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 â—ishop did pass the Hoâ—â—ing Iuly 6. 1670. Archbishop and Presbytery of St. Andrâ—wâ— contra Pittillâ— LVCRATIVE SVCCESSOR was not inferred by a Disposition and Infeftment to the behove of the appearand Heâ—r but only in so far as was Lucrative 〈◊〉 valorâ—m Ianuary 14. 1662 Harper contra Hume of â—landergast 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— Scâ—â— coâ—tra Bâ—ssâ—wel 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 〈◊〉 only Deâ—itor to the Son Dâ—câ—mbâ—r 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 â—â— years out of the Counâ—rey and commoâ—ly â—olden an◠〈…〉 There waâ— also a Letter produced by a 〈◊〉 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 〈◊〉 albeit the Act 164â— thereanent was Rescinded as being due in jure Iune 18. 166â— Fleming contra Gillies A Liâ—erenter being Infeft in a Liferent of Lands cum mâ—llâ—ndiniâ— 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 â—nfeft 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
better Rent February 23. 1665. Iack contra Pollock and Rutherfoord IN MERCHANTS ACCOMPTS taken off by persons intrusted and converted to the persons use was â—ound to make them lyable to the Merchand unless the party prove that they pâ—yed the price to the Party intrusted but if they knew the perâ—on intrusted took off the Ware not on their own Credite and Name but the Constituents and from what Merchant then they should have called for the Merchants Discharge else though they payed the person instrusted if they payed not the Merchant it is on their peril who knew the Merchants interest but not so when they payed and knew not who was Merchant or in whose Name and Credit the Ware was taken off February 20. 1669. Bruce Merchant contra Laird and Lady Stanhope METVS CAVSA was found Relevant thus That a Wife shew her unwillingness at the subscribing by the Witnesses insert and other Witnesses and that the Husband was a fierce man accustomed to beâ—t her and that he did particularly threaten her to consent to quite a part of her Liferent Iune 24. 1664. Woodhead contra Nairn Metus was sustained to take away a Bond given for fear of Caption the Party being sick when he was taken Prisoner Iune 22. 1667. Maire contra Steuart of Shambelly A MILN being built by a Husband upon his Wifes Liferent Lands wherein she was Infeft cum â—olendinis in the tenâ—â—dar was found to belong to the Wife for her Liferent uâ—e but not any Thirle Mulâ—ures of others of the Defuncts Lands February 16. 1666. Laird of Otter contra A Miln once going 28. houâ—es may not be Deâ—olished as novum opus via factâ— being a Common-good but by civil inâ—erruption via jurâ—s though it was but a walk-miln Iune 24. 1667. Hay of Struie contra Feâ—ers A Miln was found to be in the same condition as Land in relation to Heirs and Executors Liferenter and Feâ—ar so that the Heâ—etoâ— surviving Whitsonday his Executor hath the half and surviving Martiâ—mas the whole Rent though the conventional Terms were Candlesmas for the first and Whitsonday for the second Term the Entry being at Whitsonday Iuly 20. 1671 Guthrie contra Mckerstoun A MINISTERS Stipend by Decreet of Locality was found not to be understood the measure of Linliâ—hgow but the meaâ—ure of the Shire where the measure was indefinite and the Stipend not eâ—ght full Chalders of Victual and was usually payed by the measuâ—e of the Shire 15. years before Iune 27. 1669 Minister of Dalrymple contra Earl of Casâ—ilâ— A MINOR was not restored who gavâ— a Bond bearing expresly he was Major unless it were proven the Minor knew he was Minor or did induce him to insert that Clause or that by inspection he might have known him Minor not being near Majority February 23. 1665. Kennedie of Auchâ—ifordâ—â— contra Weir A Minor during his Minority having obtaiâ—ed Decreet against his Curator to renunce his Office the Curator was not â—ound liberate thereby even of omissions after the Decreet but it being alleadged that the Minor was irregular and had forcibly intrometted with his Rents The same was sustained pro tanto Iuly 21. 1664. Scot of Broad-meadows contra Scot of Thirlestoun A Minors Bond was found null by Exception because it was not with his Fathers consent as lawful Administrâ—tor to him unless it did appear he had an Estate of his own and mannaged it apart December 22. 1665. Leslie contra Sinclar of Dun. A Minors Disposition of Land was found vâ—lide unless Lesion appeared though it wanted the authority of a Iudge â—hich is only requisite to the Dispositions of Pupils and though the Minor had no Curators December 13. 1668. Thomson contra Stevinson A Minor was restored though he waiâ—ed on the Tolbooth as a student at Law but was intertained by his Father and though the Father Subscribed the same Writ seing the Son subscribed as Cautioner for him and so his Authorizing was to his own behove Decâ—mber 5. 1666. Mckenzei contra Fairholm A Minors Bond having Curators not authorized by them was found null and extended to a Son and a Father as lawful Administrator as Curator to him and that his Sons Subscribing with him as Cautioner for him or with him for any other principal Conjunctly and severally was not thereby sufficiently authâ—rized neither as Cautioner for his Father nor the other â—orrâ—i debendi his obligation as to both being to the Fathers behove as giving his Father thereby Relief and so the Son could not be authorized by the Father to the Fathers own behove Iuly 25. 1667. Inter eosdem A miâ—or having Transacted with consent of his Curators for a Right and after his majority having received the Bonds delivered to the Creditors upon the Transaction and having discharged the Curators as having Faithfully acted and having in the Curators Accompts reserved Reduction of that Transaction upon Minority and Lesion which then was raised was not found thereby excluded from the Reduction but 〈◊〉 being doubtful whether that Reservation was in the accompt when it was first Subscribed the Writer and Witnesses were appointed to be examined ex officio thereâ—nent Ianuary 26. 1671. Carâ—â— contra Cunninghame MINOR NON TENETVR PLACITARE was found not Relevant in a Recognition February 19. 166â— Lady Carnagy conâ—ra Lord Cranburn Minor non tenetur placitare super hereditaâ—â— paâ—erna was found to have no place where the Father had only a Disposition and was not Infeft but if his Infefâ—ment were instructed the Minor was found not obliged to produce â—aâ—der or to Dispute the Reason of Reduction albeit it was not upon priority or Solemnities of the Rights but super dolo aut meâ—â— yet the Pursuer was admitted to produce Witnesses for any point of Fact to remain in reâ—entis least they might dye medio tempâ—re Ianuary 31. 1665. Kello contra Pringle and the Laird of Wâ—dderburn Minor non tenetur placitare was found not to defend a Liferenter whom the Minor Feear was obliged to warrand and that her Right being Reduced did not accresce to the minor Feear nor did his â—ollerance defend her Possession Iuly 5. 1665. Borthwick contra Skein Minor non tenetur placitare was found valide though the Reduction was against the Fathers Authors Right as not being infeft Ianuary 18. 1667. Chapman contra Wâ—ite Minor non tenetur placitare super harâ—dâ—taâ—â— paterna was found not Relevant to stop a Process of Recognition of Ward Bands upon the Vassals alienation of the major part thereof although the Subâ—vassal who was also cited was minor seing the Vassal who was major his Right was principally in question and the Sub-vassal minor his Right fell in consequence February 22. 1668. Cochran contra MINORITY AND LESION was found Relevant to Reduce a Womans Contract of marriage in so far as it came short of the ordinary conditions in â—avours of such persons in their Conâ—racts of marriage which was not â—ound to annul the provisions of the
simple Renunciation competent to the Superiour to exclude the Terce and that she could brook no part â—f the Land by vertue of her Terce and that the Superiours founding upon the clause accepting Lands in satisfaction of the Terce did not import his approbation of her Right to the Lands accepted seing she wanted the Superiours consent as being an essentiâ—l requisite to her Infeftment of Ward Lands and so could admit of no Homologation more than if she had only the contract without any Infeftment This was stopped to be farder heard whether the Relict might brook at least a third of the Ward Lands accepted as a Terâ—e of these Lands though she could not brook the whole Ward Lands accepted being within a Terce of all her Husbands Ward Lands especially since the Clause bear that she accepted the Liâ—erent Lands in satisfaction of all farder Conjunct fees but should be repuâ—â—ed a Terce as being in lieu of all farder Terce whether in that case she renunced only the Terce of any other Lands buâ— not the Terce of the Lands accepted Iune 23. 1671. Lady Baâ—â—â—agan contra Lord Drumlanrig THE TERM OF PAYMENT of Bairnâ— pâ—rtions 〈◊〉 at such aâ—â— age the same was found as dies 〈◊〉 qui pro conditione habetur and they not attaining that â—ge theiâ— nearest of Kin had no right Ianuary 17. 1665. Edgar contra Edgar A TESAMENT Nuncupative by a Scotsman made in England or abroad where he resided was found null as to the nomination of Succession notwithstanding the Law of the place which rules only as to the Solemnities of Writs but not to Substantials or appoynting of Successors Ianuary 19 1665. Schaw contra Lennox A Testament containing a Legacy of a Wodset was sound void though it was done 〈◊〉 prâ—â—inctu belâ—i February 21. 1663. Wardlaw contra Frazer of Kilmundy A Testament confirmed beaâ—ing persons to be nominate Tutors and that they compeared judicially accepted made Faith and found Caution was found not sufficient to defend against a Reduction without production of the Tutors Subscription as the warrand to make the Tutor lyable for the Pupils means conform to the Inventary unless there were other adminicles to astruct the same albeit the confirmation was thirty seven years since seing the acceptance was no ordinary act of process nor no process was moved upon the confirmation till of late Iaâ—uary last 1665. Kirktoun contra Laird of Hunthil A Testament confirmed was found to be execute at the Executors instance by a Decreet though he had not obtained payment anâ— though he was Executor dative and a meeâ— stranger so that after the Executors death the sums in the Decreet could not be confirmed by an Executoâ— ad non executa of the first Defunct November 17 1666. Dounâ—e contra Young A Testament was reduced because the Testator being alleadged not to be compos mentâ—s the Nottar Writeâ— and Wiâ—nesses insert and other extraâ—eous Witnesses deponed that about the time of the Testament and thereafter the Testator was not in his right mind and to every question that was proposed answered alwayes yea yea although they were not present at the making of the Testament and were contrary to the Witnesses insert this was stoped to be further heard Iune 9 1668. Meallâ—xander contra Dalrymple A Testament beginning in the ordinary stile of a Testament and then disponing Land thereafter containing a blank wherein by another ink and hand the Defuncts eldest daughter was named universal Legatrix and Executrix but after all the moveables were disponâ—d to the eldest Daughter which Testament being quarrelled by reduction was found null as to the disposition of the Lands and as to the nomination of the Executor and Legatar the same was not sustained though filled up before the Defuncts death albeit it was offered to be proven by the Nottar and Wâ—tnesses insert that the Defunct gave warrand so to fill it up but it was sustained as to the disposition of the moveables as a Legacy in so far as the Defunct could Legat which may subsist though the nomination of the Executor be wanting or void Iuly 13. 1670. Daughters of Soâ—ityay contra the eldest daughter Testament Vide clause December 15 1668. Windrham contra Elâ—is THIRLAGE was found constitute by long custom of payment of Intown Multure in mollendino regâ—o but was not extended to the Teâ—nds of that Barony though possest promiscuâ— far above fouâ—ty yeaâ—s without more then custom and was not excluded by the Feuers of the Barony their Feus granted by the King cum mollendiniâ— mulâ—uriâ— in the teneâ—das only which was thought but past in the Exchequer of course without observation Ianuary 8. 1662. Steuart contra the Feuaâ—s of Aberledno The like without allowing any part of the cropt multure free for expences of labour and Hinds-corn but only the Seed Horse-corn and Teind Ianuary 14. 1662. Nicolson contra Fâ—uars of Tillicutrie Thirlage was sound constitute by an old Decreet against the Tennents possessors without a calling their Master and long possession conform thereupon albeit the Heretâ—r was Infeâ—t cum mollendiâ—â—â—â— and that Witnesses being examined hinc inde conceâ—ning the possession and interruption by going sometimes to other Miâ—ns were proven yet not so frequently as might not be Olandestine Iune 24 1665. Collonel Montgomerie contra Wâ—llaâ—e and Râ—ie Thirlage was inferred where the Feuer of the Miln was Infeft in the Miln with the mulâ—ures of the Lands in question per expressum and was in possession of insuckâ—n Multure thereof fourty years albeit the Defendeâ— was infeft before without the burden of astriction and did sometimes go to other mâ—â—ns which being frequent in all astrictions was found not to be a competent interruption Iune â—9 1665. Heretoâ— of the Miln of Kâ—thick contra Feuars Thirlage was infeâ—red by infeftment of a miln with the multures c. generally with a precept from a Bishop then Heretor of the Lands in question ordaining his Tennents to pay their multuâ—es to that miln which with long possession was found sufficient albeit it had no consent of a Chapter December 7 166â— Vâ—â—tch contra Duncan Thirlage being constitute by an infeftment from him who 〈◊〉 〈◊〉 of Land and Miln was found no to be prejudgeed upon the alleadged insuâ—â—â—ciency of the Miln unless the insufficiency were alleadged to be through the fault of the Heretoâ— of the Miln February 9 1666. Heretors of 〈◊〉 contra Feâ—ars Thirlage was not Inferreâ— by an infefâ—ment of â—ands with such a miln and the multures used and woâ—t which was not extended to Lâ—nds of another Barony â—olden of another Superiour though they then belonged to the Disponeâ— and were in use to come to that miln December 11 1666. Earl of Cassils contra Tennents of Dalmortoun Thirlage though constitute by a Vassal hath no eâ—â—ect against the Superiour during the Vassals Ward unless the superiour consented neither is his consent inferred by his receiving an Assignay to the Appryzing with reservation of the multures in the
liferent was sustained by her Seasine adminiculat by her Contract of Marriage albeit the sealine was not immediaâ—ly on the Contract but related a bond granted for the same cause which was not produced Iâ—ne 29. 1665. Norvel contra Steuart A wiâ—e was â—ound not to be excluded from her liferent because her Toâ—lier was not payed she not being obliged therefore albeit the Contract bear that the Tocher being payed it should be so applyed upon security Iuly 5. 1665. Mackâ—â— contra Steuart A wife was not found lyable to her husbands creditors appryzing his jâ—s meriâ—â— for the Rent of Houses possessed by her self for their aliment as to years preceeding the intenting of the Caâ—se December 7. 1665. Smith and Duncan câ—ntra Robertson Here the Creditors had access to the wife 's other Tenements though the husband shortly after his marriage left the Countrey and the wife had obtained Dâ—â—reet of adherence and was proceeding to divorce A wifes obligation with her husband for a firm obliging them to pay conjunctly and severaly and also obliging to 〈◊〉 an annualrent out of either of their Lands was found null as to the obligement to infeft even as to the wife Deâ—â—mber 15. 1665. Bleis contra Keith A wifes renunciation of a part of her joynture after her contract of marriage and first proclamation was reduced as being done without consent of her husband albeit the husband knew of the 〈◊〉 and yet went on in the marriage and albeit he was an unsuitable match to her and that not only as to tâ—e husbands interest and during his life but also simply as to the wife Iaâ—â—ary 5. 1666. Lady Buâ—e and her husband contra Sheriff of 〈◊〉 A wife was found not to have interest to pursue the Defuncts Debiâ—ors for her half but only the Executors December 15. 1667. Lady Cranburn contra Lord Buâ—ley and others A wifes accompt of furniture for her person subscribed by her was found validâ— albeâ—t she was then married and a â—â—iâ—â—or without instructing the goods received and just price she being pâ—rsona illustris and the accompt not great for her own furniture February 20. 1667. 〈◊〉 contra Dutches of Monmouth A wiâ—e cled with a husband was found lyable for drugs furnished to her and her children at her command â—he having a peculiar Estate wherefrom her husband was excluded aâ—d he beâ—ng ouâ— of the countrey December 19. 1667. Gairnâ— contra Arthur A wife acquiring Lands was found not to presume that the same were acquired by the husbands money and to belong to him and his heirs unless it were instructed that she had heretables or other sumâ— exempted a communâ—one 〈◊〉 especially seing the wiâ—e dispoâ—ed her Lands to another and her husband as Baillie of the Burgh gave Seasine thereon Ianuary 29. 1668. Brown contra Nappiâ—land A wife predeceassing her third of her husbands moveables was found not â—o comprehend the best of ilk kind but that it â—elâ—oved to be lâ—â— aside as heirship moveable wherein the wife had no interest December 8. 1668. Goâ—â—â—et contra Nâ—irâ— though the husband was alâ—ve and could then have no heir A wife in heâ— contâ—act of marriage having discharged and renuâ—ced 〈◊〉 hereâ—able sum due to her in favours of her debitors who gave a new heretable security of the same date to her â—uture spoâ—se the wifâ— having made her husband her Executor and Legaâ—ar aâ—d dying within year and day the discharge and renunciation gâ—anted in favours oâ— a third party was found not â—o be 〈◊〉 by the dissoluâ—ion of the marriage but that the old security continued iâ—â—ovar by the new â—ecurity granted to the husband who was only obliged to restore the â—um in that security to his wifes Exâ—uâ—ors as a moveable obligation and not to her heir and that so it belonged to the husband himself as Executor Dec. 11. 1668. Scot con Aiâ—on A wiâ—e was found to be burdened with her husbandâ— herâ—table debâ—s December 23. 1668. Mckenzâ—e â—ontra Roberâ—son A wiâ—e pursâ—ing for her provision by her conâ—ract of marriage which bear her to be provided to the annualrent of her Tocher and as much more the same was sound effectual and that the wife was not obliged to instruct that her Tocher was payed seing she was noâ— obliged for payment thereoâ— in the contract anâ— the husband having only a â—um provided to himself and his wiâ—e in lifeâ—ent and after their deceasses to the mans 〈◊〉 daughters by a former marriage the wife having confirmed the same for implement of her contract was prâ—â—erred to the daughters and their substiâ—uâ—ion was â—ound nuâ—l by the Act of Parliament 1621. without reduction Ianuary 5. 166â— Syms contra Brown The like before February 22. 1665. Campbel contra Campbel A â—ifes infeâ—â—ment upon her contract of marriage was sustained though it bear that the husband should imploy the Tocher an equivalent sum for the wife in liâ—erent albeiâ— the Tocher was never paid by the Father not by the husbands neglect but by the fathers insolvency from the time of the conâ—ract seing the husband did not object tâ—â— same but granted infeftment Ian 11. 1670. Hunter câ—ntra Crediâ—ors of Petâ—r WITNESSEâ— were admitted to prove setting down of Marches by Arbiters February 8. 1662. Lord Torphâ—hen contâ—a Witnesses were admitted to prove a Warrand and Command being the Messengers Domesticks and so 〈◊〉 persons Ianuary 4. 1663. Maâ—â—oâ—n contra Hunter Witnesses were admitted to prove the Loan of Books â—hough far above 100. pound Ianuary 21. 1665. Scots contra Flâ—â—cher Witnesses were â—ound to prove a bargain of Victual aâ—â—er 1â— years time Iuly 14. 1665. Maâ—â—hâ—son contra Gib Witnesses Testimonies taken by the Commissars in a Divorce crâ—ved â—o be Reduced was found not to be published but the Clerk was ordained to give a Note of their Names Designâ—tion Age and purging of partial Council and the like bâ—t not of the particulars in the cause Ianuary 4. 1666. Laird of Milâ—toun contra Lady Milâ—toun Witnesses were not admitted to prove a Bond blank in the Creditors Name delivered to a Desender to infer an obligement to re-deliver the same February â—0 1667. Iohnstoun contra Iohnstoun Witnesses were found to prove Adultery albeit their Testimonies were not of the same individual Act at the same time and place Adultery being crimen genericum inferred by reâ—â—erable Acts and though neither of the Witnesses knew the Woman with whom the Adultery was committed but heard her named at the time they saw the Acts by the Adulterers servant and that some other Witnesses knew that she was not the Adulterers Wife February 25. 1667. Lady Milntoun contra Laird of Milntoun Witnesses Testimonies were found not to be inâ—ringed upon theirown re-examinaton in a second instance as being suborned or corrupted post â—us acquisiâ—unâ— by the first sentence albeit in the first Testimonies they were not purged of partial Council Ibidem Witnesses were found sufficient to prove a â—argain to have been anterioâ— to a Writ and that Writ
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 Relâ—â—at 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 Sigâ—aâ—â—â—â— are past the KINGS hand or Exchequar's they bear only tenâ—ndas 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 Molâ—ndo 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 sâ—staiâ—â—ed the Defense for the Corns eâ—ten 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
of Parliament 1661. anent Debitor and Creditor the Lords are impowred to restrict Apprysers to a part of their Lands Apprysed sufficient for the Annualrent and to leave the rest to the Debitor The Lords did accordingly restrict but give the Appryser his option of any of the Apprysed Lands except the Debitors House and Mains paying eight per cent effeiring to the Sum Apprysed for the Appryser being comptable for the superplus above the Annualrent and publick burdensâ— Dame Margret Hay contra George Seaton of Barnes Iune 28. 1662. UMquhile Sir Iohn Seatoun of Barnes having provided George Seaton his son by his Contract of Marriage to his lands of Barnes some diferences rose amongst them upon the fulfilling of some Conditions in the Contract for setling thereof there was a minute extended by a Decreet of the Judges in Anno 1658. by which the said Dame Margaret Hay second Wife to the said Sir Iohn was provided to an hundred pound sterling in Liferent and it was provided that Sir John might burden the Estate with ten thousand merks to any Person he pleased to which George his Son did consent and oblidged himself to be a principal Disponer Sir Iohn assigned that Clause and destinat that Provision for Hendrie Seaton his Son in Fee and for the said Dame Margaret Hay in Liferent whereupon she obtained Decreet before the Lords the last Session George suspends the Decreet and raises Reduction on this Reasonâ— that the foresaid Clause gave only power to Sir Iohn to burden the Estate with a 10000. merks in which case George was to Consent and Dispone which can only be understood of a valid Legal and Effectual burden thereof but this Assignation is no such burden because it is done in lecto egreditudinis and so cannot prejudge George who is Heir at least appearand Heir to his Father The Charger answered that the Reason was no way relevant First because this Provision was in favours of the Defuncts Wife and Children and so is not a voluntar Deed but an Implement of the natural obligation of providing these 2dly This Provision as to the Substance of it is made in the Minute and extended Contract in the Fathers health and there is nothing done on Death-bed but the Designation of the Person which is nothing else then if a Parent should in his life time give out Sums payable to his Bairns leaving their names blank and should on Death-bed fill up their names The Suspender answered that he opponed the Clause not bearing de presenti a burden of the Land but a Power to his Father to burden neither having any mention of Death-bed or in articulo mortis or at any time during his life and though the Dead on Death-bed be in favours of Wife and Children it hath never been sustained by the Lords in no time though some have thought it the most favourable Case The Lords sustained the Provision and Repelled the Reason of Reduction assoilzied therefrom and found the Letters Orderly proceeded Dorathie Gray contra Oswald Eodem die UMquhile Mr Iohn Oswald having Married Dorathie Gray in England did at the time of their Contract grant an English Bond of a 1000 lib. Sterling to the said Dorathies Mother and on Wilson ad opus usum dictae Doratheae the Condition of which Obligation is that if Mr. Iohn shal pay the saids intrusted Person the Sum of 600 lib. Sterling or shall secure the said Dorathie in Lands or Cattels worth thesaid Sum of 600 lib. in in his life time or be his Testament Then he shall be free of the 1000 lib. Mr. Iohn granted Assignation to the said Dorathie of 5500 merk due to him by the Earl of Lauderdale bearing expresly the same to be for Implement of the Bond and Assigning both principal Sum and Annualrent Dorathie confirmed her self Executrix to her husband gives up this Bond and obtains Decreet against Lauderdale who calls Dorathie on the one part and the appearand Heir and Creditor of the said Mr. John on the other part It was alleadged for the appearand Heir and Creditors that they ought to be preferred to the Stock of the Sum because the Clause ad opus usum could only be understood to be for Dorathies Liferent use and not in Fee and as for the Assignation it was on Death-bed and so could operat nothing in their prejudice It was answered for the said Dorathie that she opponned the Clause The meaning thereof was no other but that her Mother and Wilson were Creditors in trust to the use and behove of her and could not be a Liferent Right because it was provided to her her Heirs Executors and Assigneys and as to the Assignation though on Death-bed yet it may very well be used as an Adminacle to clear the meaning of the Parties The Lords found the Clause to carrie the Stock of the Money and preferred Dorathie and it being thereafter offered to be proven that by the Custom of England such Clauses signifie only the Liferent use The Lords repelled the alleadgance in respect of the Clause being provided to Dorathies Heirs and Assignies and in respect of the clearing meaning thereof by the Testament would not delay the Process upon the proving the Custome of England the matter being clear in the contrair William Baillie contra Margaret Henderson and Ianet Iameson Iuly 1. 1662. BY Minute of Contract betwixt Umquhile Iameson and Baillie Baillie oblidged himself to Infeft Iameson in a Tenement for which Iameson oblidged himself to pay three thousand merks of price Iameson being dead without any further progress upon the Minute Baillie pursues the said Margaret Henderson as Executrix to him and the said Ianet Iameson as Heir to pay him the price It was alleadged for the Executor absolvitor because the bargain being incompleat the Heir must perfit it and dispone the Tenement and so can only be lyable for the price for by the performance of mutual Minute the Heir will only get the Land and therefore the Executor should not be lyable for the price or at least if the Executrix be decerned to pay the price The Pursuer must dispone to her the third part of the Tenement in Fee and the two part to the Heir she being the only Child and having Right to the two third parts of the Moveables which Moveables being exhausted by the Price of the Tenement the Tenement ought to come in place of the price The Pursuer answered that he could dispone no otherwise then according to the Minute but the Executrix might betake her recourse against the Heir as she pleased but both as representing the Defunct were lyable to him The Lords decerned the Executrix to make payment and would not bring the Debitor betwixt the Heir and her in this Process for the third of the Tenement or for her Terce thereof but reserved the same as accords Breidy contra Breidy and Muire Eodem die A Contract of Marriage was sustained both against Principal and Cautioner albeit
Teinds were exhausted wherein having failzied and being taxed no other could pay for him neither could the King lose that proportion It was answered that he had no interest to conveen the Ministâ—r having the only Right to his Teinds The Lords Repelled the Reason and adhered to the Stent Roll but prejudice to the Suspender to seek his relief of any Partie he pleaseth as accords Mr. Andrew Brown contra David Henderson and Thomas George Ianuary 18. 1668. MAster Andrew Brown granted a Bond of 700. Merks blank in the Creditors Name to George Short wherein the Name of David Henderson is now filled up Thereon George having Arrested all Sums due to Alexander Short in the hands of Mr. Andrew Brown he raises a double Poynding wherein the Competition arises betwixt the Arrester and the the Person whose Name is filled up in the blank Bond. It was alleadged for the Arrester that he ought to be preferred because he Arrested Shorts Money and at the time of the Arrestment this Bond having been Delivered to Short blank in the Creditors Name Short was Creditor ay and while not only another Name were filled up but also an Instrument of Intimation were taken thereupon for Shorts filling up of the Name of Henderson is no more then an Assignation which requires Intimation and is excluded by an Arrestment before the Intimation albeit after the Assignation It was answered for Henderson that there needed no Intimation to the filling up of a Creditors Name in a blank Bond which was never required by Law nor Custom and his Bond being now in his own Name nothing could prove that it was blank ab initio or that it did belong to Short but Hendersons own Oath in which case it would be sufficient for him to Depone qualificatâ— that the Bond indeed was blank ab initio and delivered by the Debtor to Short and by Short to him and his Name filled up therein before the Arrestment or at least that before the Arrestment he had showen the Bond filled up to the Debtor which is equivalent as if he had given back the first Bond and gotten a new Bond from the Debtor after which no Arrestment upon account of the prior Creditor could be prejudicial to him ita est he hath done more for he hath proven that before the Arrestment the Bond was producedâ— and shown to Birny the Debtor It was answered that in a former case in a Competition of the Creditors of Alexander Vetch the Lords found that the Arrestment laid on before Intimation of the filling up of a blank Bond preferred the Arrester and that otherwise Collusion could not be evited with these blank Bonds to exclude and to save Creditors Arresting The Lords preferred Henderson whose Name was filled up and presented to the Debtor before the Arrestment for in Vetches Case there was nothing to instruct that the Bond was truely filled up and presented to the Debtor before the Arrestment and they found the filling up and presenting thereof sufficiently proven by the Witnesses taken ex officio Pollock contra Pollock and Rutherfoord Eodem die UMquhil Iohn Pollock in the Cannongate having given a Bond to Iames Pollock his Son of 5000. Merks he pursues Robert Pollock the Heir of Line and Pollock Heir of the second Marriage for payment The Heir of Line Compearing Renunced whereupon the Pursuer insisted against the Heir of Provision who alleadged no Process till the Heretage be falling to the Heir of Line were first discust and condescended upon the Heirship Moveable The Pursuer answered there could be no Heirship in this Case because the Heir of Line had Renunced all he might Succeed to by his Father Heretable or Moveable in Favours of his Father his Heirs and Executors bearing expresly that his Wife and his Bairns of the second Marriage should have the whole Right Ita est Rutherfoord the Wife had Confirmed the whole Moveables promisâ—ue without exception of Heirship and therefore the Heir of Line himself if he were Entered could claim none It was answered that the Renunciation of the Heir apparent of Line being in Favours of his Father after his Fathers death it returned back to him from his Father as Heir of Line again and could go to no other Person neither thereby could the Heretable Moveables belong to the Executor The Lords found the Renunciation sufficient to exclude the Heir of Line from the Heirship Moveable and that they did thereby belong to the Fathers Exeâ—utor therefore found no further necessity to discusse the Heir of Line and Decerned against the Heir of Provision Grissel Stuart contra the Laird of Rosyth her Brother Ianuary 21. 1668. UMquhil Rosyth gave a Bond of Provision to his Daughter Grissel Stuart of 10000. pounds payable at her age of 17. years with an Obligement to Entertain her in the mean time but no Obligement of Annualrent she pursues her Brother as representing her Father for Implement and having Lived with her Uncle a part of her Fathers time and alleadging that she was hardly used by her Step-mother she craves Aliment for that time of her Fathers Lifetime and for six or seven years since his Death or craved Annualrent for her Sum. The Defender alleadged Absolvitor as to the Annualrent before her Fathers Death because she ought to have continued in her Fathers Family and there neither is nor can be alleadged any just Cause wherefore she should have deserted the same 2dly Absolvitor from Annualrent or Entertainment since her age of 17. years because the Bond bears Entertainment till that age and no Entertainment or Annualrent thereafter 3dly She does not nor cannot alleadge that she payed out any thing for Entertainment but was Entertained gratis by her Uncle The Lords found this no ground to exclude her from Aliment and found Aliment due after the Term of her Bond as well as before but not Annualrent and modified six hundreth Merkes per annum without allowing any thing for the year her Father Lived but modified the more largely it being unfit to Dispute the necessities of her Removal Ianet Schaw contra Margaret Calderwood Eodem die JAnet Schaw pursues a Reduction of a Liferent Infeftment granted to Margaret Calderwood by the Pursuers Father as being in lecto The Defender alleadged no Processe because the Pursuer was not Heir the time of the Disposition but another Heir appearand who never Entered The Lords Repelled the Defence The Defender alleadged that this being an Liferent Infeftment to her by her Husband and but of a small value it was valide and the Husband might Discharge that natural Debt of providing his Wife on Death-bed she having no Contract of provision before The Pursuer answered that the Defender might take the benefit of her Terce which is her legal Provision beyond which a Deed on Death-bed in prejudice of the Heir is null and this Liferent is of the Husbands whole Estate and yet the Pursuer is willing it should stand it being restricted to a
third of the Rents of the Lands The Lords Sustained the Infeftment only for a third Mary Dowglasse Lady of Wamphray contra the Laird of Wamphray Ianuary 22. 1668. UMquhil Wamphray having Infeft his Lady in two thousand Merks of Liferent yearly by her Contract of Marriage out of certain Lands therein mentioned and being obliged to pay her as well Infeft as not Infeft and to warrand the Lands to be worth two thousand Merks of Free Rent She pursues this Wamphray for payment who alleadged Deductions of publick Burdens It was answered that an Annualrent was not lyable to publick Burdens for the Act of Parliament 1647. made thereanent was Rescinded and not Revived and this Provision is payable not only really but personally though there had been no Infeftment and that the obligement to make the Land worth two thousand Merks of free Rent could be to no other End but to make the Annualrent free especially the Contract being in anno 1647. after Maintainance was imposed which was the heaviest Burden It was answered that an obligement for payment of an Annualrent relating to no particular Land could not be burdened with the Land or if it did relate to a stock of Money the ordinar Annualrent of the Money behoved to be free but this Annualrent relates to no stock and its first Constitution is out of the Lands mentioned in the Contract so that albeit there had been no Infeftment it must bear proportionably with the Land and albeit the Act of Parliament be Rescinded yet the common ground of Law and Equity and the Custom thereupon remains neither doth the provision to make the Land worth so much of free Rent infer that therefore the Annualrent must be free which would have been so exprest at the Constitution of the Annualrent if it had been so meaned The Lords found this Annualrent lyable for the Assesment notwithstanding the Act of Parliament was Rescinded and all that was alleadged against the same was repelled Iohn Iustice contra Mary Stirling his Mother Ianuary 23. 1668. THere was a Bond granted by Stirling of Coldoch whereby he granted him to have received from Umquhil Iohn Iustice and Mary Stirling his Spouse the Sum of 1300. Merks and obliged him to pay to the said Husband and his Spouse and longest liver of them two and the Heirs gotten between them or their Assigneys which failzying to the Heirs of the last liver the said Mary having survived did uplift the Sum and now Iohn Iustice as Heir of the Marriage to his Father pursues his Mother to make forthcoming the Sum and imploy the same to her in Liferent and to him in Fee It was alleadged for the Defender Absolvitor because by the conception of the Bond she is Feear and so may dispose of the Money at her pleasure The Pursuer answered that the conception of the Bond did no wayes make the Wife Feear but the Husband according to the ordinar Interpretation of Law in Conjunct-fees betwixt Husband and Wife and as to the Clause in relation to the longest liver their Heirs and Assigneys the Fee could not be Constitute thereby otherwise the Fee behoved to be pendent and uncertain and in effect be in no Person so long as they live together but after the Death of either the Fee should then begin to be Constitute in the Surviver which is inconsistent and therefore the Fee behoved to be Constitute by the first words obliging to pay the Sum to the Husband and Wife the longest liver of them two whereby the Husband was Feear and might have disposed thereupon during his Life but without prejudice of his Wifes Liferent there is no doubt but this Sum might have been Arrested for his Debt and it could not be then pretended that ex evenâ—u the Wife by surviving might become the Feear It was answered for the Wife that albeit Conjunct-fees between Man and Wife do ordinarly Constitute the Husband Feear yet there are many Cases in which such Conjunct fees the Wife may be Feear and here the termination being upon the Surviver makes her the Surviver sole Feear although both were Conjunct Feears before and neither of them properly a Liferenter till by the event it did appear who should Survive neither can any such subtilty of the dependence or uncertainty of the Fee render the intention of the Parties ineffectual The Lords found that by the foresaid Clause the Husband was Feear and the Heirs of the Marriage were Heirs of Provision to him and that failzying the Heirs of the Marriage the Wifes Heirs were substitute as Heirs of Tailzie and therefore ordained the Sum to be so imployed and secured that if the Pursuer being the only Heir of the Marriage should Die before he dispose thereupon it should return to the Heirs and Assigneys of the Mother The Lady Wolmet and Dankeith her Spouse contra Major Biggar and Iames Todrig Ianuary 24. 1668. THe Lady Wolmet and Dankeith her Spouse pursues Major Biggar and the Tennents of Wolmet for Mails and Duties Compearance is made for Iames Todrig who being Assigned to an Annualrent due out of the Lands of Wolmet to the old Lady Wolmet by an Infeftment long prior to this Ladies Infeftment upon which Right there was also raised an Inhibition whereupon Todrig as Assigney pursues Reduction of the Pursuers Right and several others and obtained Decreet thereupon and now alleadges that the Lady can have no Mails and Duties because her Right stands Reduced at the Instance of the said Iames Todrig who hath also Appryzed upon his anterior Annualrent The Pursuer answered that the alleadgeance ought to be repelled because the Right of his Annualrent Appryzing and Reduction has been several years in the Person of Major Biggar who has been all that time in Possession of the Lands and therefore by his Intromission Todrigs Appryzing is satisfied within the legal It was answered for Major Biggar albeit the Right was and had been his and he in Possession yet the Appryzing cannot be satisfied thereby unlesse he had Possest by vertue of the Appryzing which cannot be alleadged because he offers him to prove that he Entered and continued in Possession many years before he got this Right by vertue of other Infeftments The Pursuer answered that by the Reduction at Todrigs Instance all Major Biggars Rights stands reduced so that albeit by them he entered in Possession yet he cannot ascribe his Possession to them after they were Reduced It was answered that albeit his Rights were Reduced there was no Removing or Action of Mails and Duties intented against him upon the prevailing Right and therefore his Possession behoved to be ascribed to his prior Possession though Reduced 2dly He having now divers Rights in his Person may ascribe his Possession to any of them he pleases against this Pursuer from whom he derived not his Possession nor the Cause thereof 3dly It was answered that the Pursuer might acquire this Right ad hunc effectum to purge it
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
bona fide continued the same seing the Father continued in Possession of the Lands and built thereupon and gave an Infeftment of Annualrent to the Merchants after the Infeftment granted to his Son and likewise raised a Poinding of the Ground upon his Infeftment of Annualrent whereupon he now insists It was alleadged for the Son and the Lord Tarphichen that the Sons Right being publick and Registrat in the publick Registers prior to the Pursuers Annualrent for the Bonds whereupon the same proceeds it doth fully exclude them from Poinding of that Ground The Merchants repeat their Declarator by way of reply To which it was answered that whatsoever may be said of Latent and Clandestine Rights betwixt Fathers and Children and other confident Persons yet there is no Law hindering a Father to give an publick Infeftment to his Son unlesse it be in prejudice of the Creditors to whom he was due Sums at that time which being a valide pubick Right no Deed or pretence of fraud of the Father thereafter can prejudge the Son in his Right who being an Infant was not capable to be partaker of fraud neither can fraud be presumed as to Creditors who are but to Contract thereafter nor can a publick Right Registrat and a publick Seising which all the World may and all Concerned ought to know be esteemed a contrivance or fradulent Right and as to any Commerce betwixt these Merchants and the Father which began before the Sons Right no respect can be had thereto because the Pursuers Bonds are lately for a Sum of Money and must import that the former Debts by Traffick were past from or Discharged and if need beis offered to prove that they were actually Discharged 2dly The making up a Debt to be prior to take away the Sons Infeftment can only be probably by Writ or Oath of Party and not by Witnesses who cannot prove above 100. Pounds 3dly Though the cause of the Bond were proven to be a Correspondence and Traffick begun before the Sons Infeftment it is no ways relevant against any Provisions gotten after the Infeftment for such can have effect but from their own Date and the effect is cut off as to what is posterior to this publick Infeftment seing the Merchants did either follow Massons Faith upon their hazards or else they should have had a Procurator here and taken advice how they might have been secured of Massons Estate by the Law of Scotland who would have taken notice by the Registers that Masson was denuded by a publick Infeftment which nothing he could do thereafter could prejudge and would have certified the Merchants thereof and their failing therein is on their own peril and albeit their payment and acting bona fide is sometimes good though made to these who had not a valide but a colourable Right by these who knew not a better Right and might have been compelled to pay upon the colourable Right yet other Deeds though bona fide done are upon the peril of the Actor To which it was answered that by the common Law and Custom of this Nation all fraudulent Deeds are Reduceable and there can be no Deed more fraudulent then this of a Father to his own Infant Son for whom he is legal Administrator and must accept the Right he gives himself and so colludes with himself to make a snare to intrap Merchants and Strangers in the midst of a course of Trade with them which is a common ground of Law whether the Debt be prior or posterior to the Sons Infeftment and albeit the Merchants Bond be posterior yet seing it bears to be for Ware Witnesses according to the ordinar custom are Receiveable for astructing the Writ to prove what the Ware was and when Received which will not be prejudged though there had been a Discharge of the Ware granted the time of the Bond unlesse there had been a real and true payment of the Money for there being nothing then payed this Bond ceases not to have a true anterior Cause as if it had been granted on Death-bed upon a Discharge then given it would be valide as being upon an anterior Cause before the Sicknesse neither is there any difference to be made of the Parts of the Traffick after the Sons Infeftment but seing the Correspondence began before and is once continued as a constant Correspondence and Traffick it must all be drawn back to its beginning as if the Merchants on both sides had Contracted when they began their Correspondence that they should faithfully pay what either of them Received from other till the Correspondence was given up The Lords found that this Bond although posterior to the Sons Infeftment not bearing borrowed Money but Merchant Ware that the quantity and times of furnishing thereof might be proven by Witnesses and albeit there had been a Discharge of the Ware yet so much thereof as was furnished before the Sons Infeftment would affect the same but found that the Sons Infeftment being publick and Registrat no posterior Deed of the Fathers by continuing Traffick or Correspondence nor no pretence of fraud of his could annul or burden the said Infeftment for any Debt contracted posterior thereto Executors of Mr. Thomas Ridpeth contra Iohn Hume Eodem die IN a Competition betwixt the Executors Creditors of Mr. Thomas Ridpeth about a Sum due to Mr. Thomas by Bond and by him Assigned to Iohn Hume who not having Intimat it in Mr. Thomas his Lifetime did thereafter get payment of a part of the same and a Bond of Corroboration for the rest thereafter Toredlie for a Debt due to him by Mr. Thomas Ridpeth Confirms himself Executor Creditor to Mr. Thomas and alleadges that he ought to be preferred because the Assignation made to Iohn Hume was an uncompleat Right wanting Intimation so that the Sum remained in bonis of Mr. Thomas Ridpeth and that he had followed the only legal way to affect it by Confirming himself Executor Creditor to Mr. Thomas and albeit the Assigney may force any other Executor to pay to him yet not an Executor Creditor who is Executor to his own behove for satisfying his Debt It was answered that the Assignation though not Intimat being a special Assignation albeit it cannot have Execution by Horning yet it is the undoubted ground of an Action even after the Defuncts Death against the Debitor and no Executor Creditor can have Right thereto Which the Lords found Relevant and preferred the Assigney Duke Hamiltoun contra Weir of Balckwood Iuly 28. 1669. THe Duke of Hamiltoun insisted in his Declarator against the Laird of Blackwood for declaring that he had Right to his Superiority by the Act of Parliament 1661. bearing That whosoever should get Right from the King to the Superiority of the annexed Kirk Lands the same should be valide as to these Vassals who had Confirmed or should Consent And alleadged that Major Ballantine to whom Blackwood is Heir had taken an Infeftment of the Estate of Blackwood