Bonds and to procure Discharges from the Creditors to Parkley and his Cautioners And nevertheless having payed the said Sums he did not take Discharges but Assignations to the saids Bonds which he filled up in the name of Sir Mungo Stirling of Gloret his own Creditor who did thereupon Arrest a Sum due by the Earl of Callender to Parkley Thereafter Captain Monteith having Right to Callendars Debt by Assignation from Parkley obtained a Decreet against the Earl which being Suspended upon double poinding It was alledged for Gloret that he ought to be preferred in respect of his Assignation and Arrestment whereunto it was Answered that Kinglassie being obliged as said is to pay the saids Sums had payed them and whereas he should have taken Discharges he had taken an Assignation Blank in the Assigneys Name and had filled up Glorets Name in the same So that Assignation being procured by him and lying by him and he being Master of it it was in effect his and he was in the same case as if the Assignation had been granted to himself and he had made a Translation to Gloret in which the Exception upon the obligement foresaid to relieve Parkley as it would have been competent against Kinglassie would have secluded also Gloret his Assigney by Translation In this Process Gloret his Oath being taken and he having declared that the Assignation was procured by Kinglassie and by him delivered to Gloret and that he payed nothing to the Cedent but that the Assignation was given to him by Kinglassie that he might be satisfied of certain Sums due to him be Kinglassie which he was to Discharge if he recovered payment by vertue of the said Assignation The Lords upon a Debate in praesentia preferred Monteith and found the Exception which was competent against Kinglassie if the Assignation had been to him and transferred by him to Gloret is competent against Gloret and that he is in the same case as if he had Right by Translation from Kinglassie This is most just and founded upon Law and Equity seing otherwayes Fraud cannot be obviate And in Law plus valet quod agitur quam quod simulate concipitur aut exprimitur And Fictione brevis manus Though it appear that it is but one Act viz. The Assignation made to Gloret yet in construction of Law there is two Acts viz. The granting the Assignation blank to Kinglassie which in the interim before it was delivered to Gloret was his evident and an Assignation immediatly made to himself and thereafter the filling up Glorets Name and the delivery of the Assignation to him which upon the matter is a Translation Spotswood for Monteith Lockheart Cuninghame Maxwell and Weir for Gloret D. 55. MckenÈie contra Fairholm Eod. die SIR George MckenÈie having intented Declarator and Reduction of a Bond Subscribed by him as Cautioner for his Father Ex eo capite that it was null ipso jure in respect he was Minor for the time and his Father was loco Curatoris to him and had not Authorized him at least could not be Author to him in rem suam It was alledged that he had not intented Reduction within the quadriennium utile And as to the Declarator of Nullity the reason was not Relevant In regard Bonds granted by Minors having Curators without their consent are Null they being interdicted eo ipso that they do choise Curators that they do nothing without them But Bonds granted or other Deeds done by Minors wanting Curators are not Null in Law but the Minors lesed by the same may crave to be Reponed Debito tempore by way of Reduction And that the Father though he be Tutor in Law for the Children being Pupils he is not Curator being puberes and of that Age that they may choise their their own Curators The Lords notwithstanding Found the Reason relevant and declared the Bond Null as to the Pursuer Quibusdam refragantibus inter quos Ego upon these Grounds that there is a great difference betwixt Tutors and Curators Pupills and Puberes the Father haveing by the Law power to name Tutors and consequently being Tutor of Law himself and having that Authority which may be derived and given by him to others whereas he has no power to name Curators to his Children when they are of that Age that they may choise themselves And though he should name Curators in a Testament his Nomination could not bind his Children And 2. If Children being Puberes should choise any other persons to be their Curators they would exclude and be preferred in that Office to the Father Whereas habenti Curatorem Curator non datur 3. If a Child should have an Estate aliunde and the Father his Son being pubes should cessare and be negligent in the Administration of his Estate there could be no Action against him for his omission which might be competent against him and his Heirs if he were Curator Gibson Clerk Sinclair for Fairholme the Defender Wedderburn and Lockheart for the Pursuer D. 56. Vrquhart contra Frazer Eod. die A Wadset being granted by Sir Thomas Vrquhart Elder and Younger of the Lands of Brae to Sir James Frazer for 24000 Merks and the Granters of the Wadset being obliged to warrand the Rental besides Custumes to be Twenty Chalders of Ross bear and to furnish Tennents and to cause them pay the said Duty and for each Boll undelivered Ten Merks Sir Alexander Vrquhart of Cromarty Donatar to the Escheat of the said Sir Thomas Elder and Younger pursues the Heir and Executor of the Wadsetter for the superplus of the Rent of the said Lands exceeding the Rent of the foresaid Sum for diverse Years In respect the Contract was usurary It was alledged by the Act of Parliament 247. Anno 1597. The Creditor cannot pursue for the superplus of the Annualrent but by way of Reduction of the usurary Bond or Contract with Concourse of his Majesties Advocate It was Replyed That Rei persecutoriâ he had interest to pursue for what was indebite payed The Lords Found That the Process could not be sustained without concourse of His Majesties Advocate The Act of Parliament being express that the Creditor cannot repeat the excrescence above the Annualrent unless he concurr with the Advocate to reduce which appeareth to be provided of purpose to oblige the Creditor to inform and concurr with the Advocate for reduceing so unlawful pactions D. 57. Vrquhart contra Cheyne Decemb. 8. 1666. SIR Thomas Vrquhart of Cromarty having disponed to Mr. William Lumisden a Tenement of Land and Salmond-fishing for Surety of 4000. Merks borrowed from Lumisden the abovementioned Sir Alexander Vrquhart having Right by Comprysing to the saids Lands and Fishing and reversion of the said Wadset pursued a Compt and Reckoning against Walter Cheyne having Right to the said Wadset and to hear and see it Found that the Sum due upon the Wadset was satisfied and payed by the said Walter and his Authors Intromissions It was alledged that the Wadset
being a proper Wadset without a Back-tack the Defender was not Lyable to Compt and tho he were he was not Lyable to Compt but since the date of the Right and for his own Intromission It was Replyed that it was a Right granted for security and that by the Contract of Wadset and the Eik to the Reversion thereafter the Right was redeemable upon payment of the principal and Annualrents that should be unsatisfied whereas in proper Wadsets there is an Antichresis and the Rents of the Land belongs to the Wadsetter in lieu of the Annualrents whereto the Debitor is not Lyable The Lords Found That though the Right was not clear and express that the Wadsetter should have Right for surety and until he be satisfied by Intromission or otherwayes yet the Reversion being in the Terms foresaid it was Actum and intended that the said Wadset should not be a proper Wadset but only for surety as said is D. 58. E. Cassils contra Whitefoord Eod. die THe Lands of Damertoun being a part of the Barony of Cassils and formerly holden Ward by the Lairds of Blairquhan Kennedies of the Earl of Cassils and now being in Ward through the Minority of the present Heritor who had Succeeded in the Right of the saids Lands being acquired from the Laird of Blairquhan The Tennents of the saids Lands Pursued a multiple poynding against the E. of Cassils and Whitefoord now of Blarquhan and the Heretor of Dalmertoun all pretending Right to the multures of the saids Lands The E. of Cassils alledged that during the Ward they should bring their Corns to his Miln of the Barrony of Cassils there being no Milns upon the Lands of Dalmertoun The Laird of Blarquhan alledged that he was infeft in the Lands of Blarquhan and in the Miln of Dalhovan upon a Right granted by Kennedy of Blarquhan cum astrictis multuris usitatis at such a time as Blarquhan had Right to Blarquhan and Dalhovan and to the Lands of Damertoun And that before the said Right granted by Kennedy of Blarquhan to John Whitefoord of Ballach Author to this Laird of Blarquhan the Tennants of Damertoun were in use to come to the said Miln and to pay the like multure and service as the Tennants of Blarquhan did and since the Right have been in use to come constantly to the said Miln It was Answered for Cassils that unless there were an express Constitution of Thirlage the said Lands of Dalmertoun being a distinct Tenement from the Lands of Blarquhan which hold of the King cannot be alledged to be astricted to the said Miln of Blarquhan And if it had been intended that the Lands of Dalmertoun should have been astricted It would have been exprest And when the same did belong to Kennedy of Blarquhan it cannot be said that it was astricted to his own Miln with the foresaid Servitude quia res sua nemini servit and he having Disponed his Miln it cannot be presumed that he would have Burdened his own Lands with a Servitude And though it were clear Kennedy had astricted the saids Lands of Dalmertoun yet he could not Constitute a Servitude without the Superiors consent in his prejudice when the Lands should Ward in his hands It was replyed by Whiteford of Blairquhan that the Superior had consented to the Thirlage in so far as John Gilmor and one Bonar having Comprysed the saids Lands of Dalmertoun from Kennedy of Blarquhan and having Assigned their said Comprysing to John VVhitefoord the said VVhitefoord by Contract did Assign the same to Kilkeren with a Reservation of the multures thereof to the Miln of Dalhovan And the said E. had granted a Charter to Kilkeren upon the foresaid Right The Lords thought That these Words Cum multuris usitatis do relate only to the quantity of the multures as to such Lands as can be shown to be astricted But before Answer to the Debate upon the said Charter and Reservation They ordained the Charter and Contract containing the Reservation to be produced That they might consider Whether it be in the Charter and how it is conceived and what it should operate if it were only in the Contract The Lords enclyned to think that a clear Reservation though there were not a preceeding Thirlage should import a Constitution as to these who accept or consent to such a Reservation D. 59. Leslie contra Leslie eod die PAtrick Leslie of Balquhoyn pursued a general Declarator of the Single and Liferent Escheat of John Leslie of Balquhoyn against James Leslie and his Spouse as nearest of Kin to the said John It was Alledged that the Horning was prescribed the Declarator being raised fourty years after the Horning It was Replyed That though Prescription should run against the King which was denyed yet in this case it could not The King being Minor the time of the Prescription diverse years and the Government being interrupted So that there was not Tempus utile during the Usurpation And the King is not in use to dispose of Escheats until application be made to his Majesty And by the Act of Parliament it is provided that the negligence of his Officers should not prejudge him The Lords Found That the Horning did not prescribe in respect of the Kings Minority and Interruption foresaid It may be asked If that reply of his Majestie 's Minority and Interruption were not competent And if the Escheat were gifted by a Lord of Regality or a Superior Quid Juris And it seemeth that a Horning being poena and once execute it doth not prescribe Seing the Rebel if he should survive fourty years his Liferent would fall to the Superior and there is no reason that he should Lucrari and be in better case ex culpa and by the continuance of his Rebellion for so long a time D. 60. Hume contra Creditors of Kello 12. Decemb. 1666. IN a Process betwixt Hary Hume and the Donator of the Forefaulture of John Hume of Kello and certain others his Creditors It was Found That a Comprising being deduced before January 1652 and being the first effectual Comprysing ought to be preferred to the posterior Comprysings so that they should not come in together pari passu In respect tho they were within year and day of the compleating and the making effectual the first Comprysing by Infeftment or Diligence yet they were not within year and day of the deduceing the said Comprysing and the said Comprysing being before the year 1652. doth not fall under the compass of the Act of Parliament concerning Debitor and Creditor which bringeth in pari passu Comprysings led since January 1652 and being Correctoria Juris Communis ought not to be extended D. 61. Thomson contra Stevenson eod die IN a Reduction of a Right and Disposition of certain Houses being pursued ex capite minoris aetatis It was alledged that the Disposition did bear 500 merks to be payed and the Defender was content to quite the right being payed of the Sum. It was
succeeding Magistrates may be charged with Horning And if they be denounced will the Escheat of their own Moveables fall or only of Moveables belonging to the Town Ratio Dubitandi Officium nulli debet esse damnosum and they are not bound themselves personally but only they and their Successors in officio in behalf of the Corporation And on the other part if they should not be Lyable the Execution would be elusory and though it is not just that they should pay such Debts out of their own Estate yet they are lyable to pay the same out of the Estate of the Corporation and if they cannot raise so much for the time out of that Estate they should Suspend and make it appear that they are neither in mora nor in culpa Quid Juris As to Comprysing or Adjudication as to such Bonds Whether it should be only of the Publick Estate or of the present Magistrates likewise Specially after the Letters are found orderly proceeded upon a Suspension discust against them After the Magistrates are denounced and Year and Day at the Horn Quid Juris as to the Liferent Escheat whether will that of the Town fall and how long their Liferent shall be thought to endure Or if the Liferent of the Magistrates and each of them will fall If the succeeding Magistrates may be charged summarly and if they be Denounced will their own Escheat fall Infeftment of Annualrent LAnds being affected with two annualrents to diverse persons and being comprised for the bygones of the first Quaeritur If after the expireing of the Comprysing the Compryser the Lands being sufficient to pay both annualrents will be Lyable to the second Annualrenter Seing the Lands were affected therewith the time of the Comprysing And though the first annualrent was prior the Debitor did no prejudice to give the second the Lands as said is being able to pay both If the second Annualrenter may redeem Base Infeftment LAnd holding Feu being disponed to be holden either of the Disponer or of the King And the Disponer being obliged to infeft by two Infeftments the one to be holden of himself Blensh and the other of the Superiour as the Disponer held Quaeritur If the Buyer think fit to hold of the Disponer and does not make use of the Procuratory Whether during the time that he continues to hold of the Disponer will he be lyable to releive him of the Feu-duty Infeftment in a Right both of Property and Annualrent A Sum of Money being lent and thereafter for further security the Debitor having granted a Disposition whereby he is obliged to infeft the Creditor in an annualrent out of certain Lands And likewayes to infeft him in the property of the Lands being extended to a twenty pound-pound-land for security both of the principal Sum and annualrent So that he might have Recourse both to the Lands and Possession of the same until he be satisfied both of the principal Sum and bygone Annualrents And that by two Infeftments under reversion and that he may have recourse to either Right as he should think fit and though he should make use of either that he should not be precluded but make use of the other alse oft as he thinks fit which Right is granted by a Charter and Seasin following upon the same Quaeritur There being a Non-entry of the Creditor whether before Declarator the Retour-Duty of the Lands or the Annualrent of the Sum being one hundred pounds sterling Yearly will fall and belong to the Superior Seing the Annualrent valet seipsum It is Answered That it is thought the Right being instar Hermaphroditi and neither properly a Right of Annualrent nor Property and yet both It is thought that in Law as a Hermaphrodite is repute to be sexus praevalentis so in this case Jus proprietatis trahit ad se Jus inferius And it being the Design of the Creditor to secure both the principal Sum and Annualrent and that the Debitor should continue in possession and in Wadsets improper where the Debitor is to possess either upon a Back-tack or otherways the Annualrent is not Debitum fundi It is therefore intended that there should be a Right of Property But so that the Annualrent should be secured in manner foresaid As if in a Right of Wadset with a Back-tack it should be also provided that the Back-tack Duty should be Debitum fundi and that it should be lawful to the Creditor to poind the Ground for the same as if it were secured by an Infeftment of Annualrent Infeftment for the use and behoof of another IF a Right be granted to the use and behoof of another will the Right Forefault by the Treason of the Vassal in prejudice of him to whose use it is de quo vid. Wadset Heretable or Moveable Let. V q. 4. And farder if the Vassal be Year and Day at the Horn whether will his Liferent fall in prejudice of the Vsuarius And if the Vsuarius be Year and Day at the Horn whether will his Liferent fall to the Superior or not Ratio Dubitandi That Vsuarius is not Vassal and yet has real Interest out of the Lands holden of the Superior Conditional Infeftments A Mother being debarred from her Joynture many Years upon occasion of Incumberances and upon that Ground being Creditrix to her Son for a considerable Sum of Money and likewayes out of respect to her Son having taken a Right to a Comprysing for certain great Sums Did Assign to her Son being the only Son of her Marriage with his Father both the saids Interests to himself and the Heirs of his Body whillâ— FailÈieing to herself and her Heirs with a provision that he should not have Power to alter the said Destination and if he should alter the same the Assignation should be void But the Son having made no use the said Comprysing and there being no Infeftment thereupon is Infeft in the Estate as Heir to his Father Quaeritur What way his Mother and her Heirs may be secured so that the said provision may be effectual to them in case the condition exist by the FailÈieure of the Heirs of his Body Answer It is thought that the Son should give her a Bond making mention of the Mothers favour to him and of the said Substitution and provision and that it is just it should be made effectual to her in the case foresaid if it should fall out and that by the Assignation her Right is Liquidate in the case foresaid to 40000 Merks to be payed to her and her foresaids Therefore without prejudice of the said Assignation and Provision he should be obliged and his other Heirs succeeding to him in his Estate FailÈieing Heirs of his Body to pay to her and her Heirs the Sum foresaid at the first Term of Whitesunday or Martinmass after the existence of the said Condition and the FailÈie of the Heirs of his Body And for her better security he is to be obliged to Infeft her
haud obtruditur ante Resignationem cum Domino transigitur de Laudimiis si quae alia ab Emptore praestanda sunt Domino ut ab omni periculo incommodo securus sit Non diffiteor longe aliam rationem esse Domini Regis Cum enim Pater Patriae sit nec sit e dignitate sua causari aliquem e subditis sibi iniquum aut infensum nullo delectu aut discrimine Resignationes recipit per eos quibus eam Provinciam demandavit Adhaec Principes de rebus publicis solliciti privatis superesse nequeunt viris clarissimis qui a Rationibus sunt utcunque impigris sedulis haud mirum est si aliquando imponatur sed fraus deprehensa punitur lege consultissima statutum Regis Ministrorum Incuriam Negligentiam Regi haud officere nec difficile adhibere remedia quibus fraudibus incommodis obviam eatur inter alia illud esset haud spernendum si Resignatione facta Instrumentum Resignationis statim conficeretur subscribentibus etiam tam Resignante quam Resignatario apud Cameram Rationum deponatur alioqui Resignatio habeatur pro infecta sic enim constabit Resignationem celebratam incommoda supradicta cessabunt Interea quae pro Negativa disseruimus intelligi velim si compertum sit Resignationem factam nec fraudem subesse eo casu quia omne Jus a Rege ut Juris fonte profluit si scriptum sit sanxit si moribus introductum permisit quasi tacito consensu firmavit quod in alios statuerit Jure uti debet Cum Deus nobis haec otia fecerit aut fieri permiserit statueram ea utcunque oblectare id genus exercitationibus comperto quaestionem in foro ventilari videbar mihi operae pretium facturus si in casu arduo exitus dubii ancipitis quicunque demum futurus sit magni momenti quid Juris sit dispicerem quid meae esset opinionis dicerem id feci eo animi candore ut nec in Regem studio quod mihi semper maximum fuerat nec alio affectu transversum rapi mihi permiserim licet in causa simili etiam res mea ageretur nec socero nec vitrico nec aliis ultimus haeres fui nec assentatione aut aliis artibus ab aliquo opes eblanditus aut adeptus sum nec munus antequam enim ad munera eodem quo nunc mihi ereptum est impetu ab iisdem raptus sum tantum non invitus eorum quae mihi acciderunt praesagus Deo largiente industriae Laboriosae innoxiae alienis haud inhianti favente fui adhuc sum Superior Dominus directus haud unius Vasalli sed cum ista animo agitarem immo persoripsissem haud animo praejudicandi nedum sugillandi amplissimi Senatus sententiam incertus quaenam futura esset sed ne animus negotiis assuetus immo ab ineunte aetate innutritus nunc ignobili otio desidia torpesceret tandem mihi nunciatum est Senatum pro Affirmativa judicasse secundum actorem Regis Donatarium Retention QVaeritur In the Cases of Compensation mentioned in the Questions second and third anent Compensation in the Letter C. If at least the Defender may pretend that he should not be in worse case than if the Assignation were not made and therefore ought to have Retention until his Debt be liquidate It is Answered That there is no ground for Retention but the Defender ought to have done Diligence to affect the Debt due to him which he might have done by Inhibition upon the Dependence or by assigning his Action to the effect Arrestment might have been made in his hands of the Debt due by him Cum refundere oportet Ãmpensas meliorationes Jus Retentionis competit quia interest magis per Exceptionem retinere quam per actionem repetere Jus Fluviat p. 779. n. 78. Retours IF the Sheriff-Clerk and Sheriff of the Shire to which the Lands are unite may not give Seasin and will be lyable to answer in capiendo Securitatem for what is contained in the Retour as to both Lands Retoured Duty AN Annualrent of One Hundred Pound Sterling being given out of a Barony for a Sum of Money lent to the Baron upon that Surety to be holden of the Superior Quaeritur If the Barony being of a considerable Rent suppose Nine Thousand Merks per annum and the new extent of the haill Barony being but Twenty Pounds if the Annualrent should be in Non-entry whether the Non-entry should be the full Annualrent upon that pretence that valet seipsum Or if it should be only a proportion of the retoured Duty viz. The fifth part Answer It is thought that it should be only a proportion of the retoured Duty And valet seipsum is only understood when there is no other retoured Duty And in this case it appears there is no other retoured Duty In so far as the whole Barony and Rent being retoured the Annualrent being the fifth part is consequently retoured And it were absurd that for the Non-entry of an Annualrent there should be more due than for the whole Barony Specially seing the Superior wants not a Vassal of the Barony to serve him for the whole Barony and the Annualrenter is not properly a Vassal obliged to serve being infeft only for surety of his Money Return of Lands to the Superior upon a Provision IF there should be any Difference betwixt Vltimus Haeres and the King succeeding upon a Provision of Return FailÈieing Heirs male Ratio Dubitandi An ultimus Haeres and the Donatar is lyable to Debts but in the other Case it is doubtful Because it is a Maxim that when ever Lands are returned to the Superior either ad Remanentiam or ad Tempus as in the Case of Forefaulture or Recognition or Ward or Non-entry they return pura ut profecta sunt and specially in Ward-lands and where it appears that the Superior elegit familiam and has given Lands with an express Provision of Return it may seem reasonable that seing he has none to serve him in the Family he may have the Lands back in the same condition he did give them Return of Lands to the King failÈiening of Heirs Male THE King having disponed Lands without an Onerous Cause to a Relation or Servant and his Heirs male which FailÈieing to return if the Masculine Line fail Quaeritur Will the King have Right without the Burden of Debts 2do If the Lands be comprised although the King should be free of Personal Debts Will the Compriseing though expired be void Quia resoluto Jure dantis resolvitur Jus accipientis Reversion A Reversion being granted failÈiening Heirs of the Granters Body may the Granter dispone as absolute Fiar Will his Wife have a Liferent by the Contract of Marriage Will she have a Terce So that the Effect of Reversion will be only
against his other Heirs than those of his Body if the Lands be not disponed or burdened by the Fiar Lamberton contra the Relict of Plenderguest What is the Import of that Clause in Wadsets subjoined to Reversions That it should not be lawful to redeem but by payment not only of the Sum given upon the Wadset but of all other Sums due by the Granter his Heirs and Successors to the Receiver and his foresaids if it be effectual not only against the Heirs and those who represent the Granter but against singular Successors Rationes Dubitandi 1mo The said Clause is neither a Reversion nor Eik to a Reversion which ought to be special and eontain certain Sums or liquid Obligements 2do Destructive of Commerce seing it cannot be constant whether the Person having Right to the Reversion be such as may be dealt with seing it doth not appear by the Register whether he be owing to the Creditor any other Sums by that upon the Wadset 3tio If the Reversion should go per mille manus Will Sums due by all these who had Right thereto to the Haver of the Wadset or his foresaids be real So as to affect the Reversion 4to may the Creditor take voluntar Assignations to debts due by his Debitor and so prefer such of the Creditors as he pleaseth and burden the Reversion so that the Debitor cannot redeem 5to If other Creditors compryse from the Debitor before the haver of the wadset be creditor in other Sumes to the Granter will he be prejudged by the Comprysing as medium impedimentum What is the Import of an Eik to Reversion If the Creditor will have a real interest to affect the Duties as if it were an Eik to the Back-tack Ratio Dubitandi The said Sum is due upon the Wadset and eo ipso that it is eiked to the Reversion it is eiked to the Tack and plus valet quod agitur c. And on the other part Reversions are stricti Juris and import no more than quod sonant viz. That it should not be lawful to Redeem but upon payment of the Sum contained in the Eik Premonition being used upon a Reversion to the Wadsetter for receiving his Money Quaeritur If there be Locus Poenitentiae so that it may be past from Ratio Dubitandi Licet Renunciare Juri pro se introducto On the other Part it may be pretended That Jus is quaesitum to the Wadsetter so that if it be his interest to have his Money he may upon the Premonition call for it The Question will be greater if there be an Infeftment of Annualrent with a Reversion to the Granter without an Obligement to pay the Principal Sum upon Requisition seing the Person who has Right to the Annualrent may be concerned to have the Principal Sum which he cannot have if the Heretor do pass from his Premonition If a Comprysing of Lands disponed to the Wife will Import Jus revocandi competent to the Husband so that the Deed in favours of the Wife cannot be said morte confirmari in respect of the said medium impedimentum Item Whether at least the Wife will have Right to the Legal Reversions of Comprysings against appearand Heirs IF Comprysings or Adjudications against Appearand Heirs do not expire before they be twenty five Years Ratio Dubitandi That the Act of Parliament is in favours of Minors having Right and the Appearand Heir has no Right and in Adjudications they renounce to be Heir and there is no Reason that the Creditor should be prejudged upon Pretence of favour to a Person who has no Right If the Appearand Heir be reponed before he be twenty five Years the Creditor who would adjudge the Reversion competent to him will consequently be restored Reversion Personal QVaeritur If a Reversion that is Personal excluding Heirs and Assigneys may be comprysed Ratio Dubitandi A Compryser is upon the matter and in construction of Law a Legal Assigney And on the contrare Voluntar Assignations are only excluded but not Comprysing And there is not par ratio because it is in arbitrio of the Person who has Right of Reversion personal to himself either to Redeem or not but a Debitor having Right to a Reversion ought to satisfy his Debt And if he will not make use of his Right of Reversion to that purpose The Law gives a Remedy by Comprising If the Compryser of such a Reversion may redeem after the Death of the Person to whom it granted Ratio Dubitandi The Heretor whose Lands are affected with the Reversion ought not to be in worse Case at least as to the Time and Endurance of the reversion and the Compriser sibi imputet That he does not make use of his Right in time and he has advantage enough in Law that the Reversion being Personal may be Comprysed If a Reversion that is Personal Doth fall under Forefaulture Ratio Dubitandi That the Fisk is not so favourable as the Creditor and Compryser And yet it is to be considered that whatever is competent to the Traitor doth forefault to the Fisk And otherways it would be an Incouragement to commit Treason if such Reversions and Faculties being only competent to Parents and Relations they cannot forefault so that their Children may bruik the Estate notwithstanding of their Treason When a Person has right to Redeem personally to himself after the useing of the Order he may assign But Quaeritur If having proceeded to his Order by premonition he decease before compleating of the same in that case he may assign and the Assigney may prosecute the Order Ratio Dubitandi He has declared his Will to redeem And yet on the other part Actus inceptus non habetur pro completo sed Cogitandum Quid Juris In such a Case In Retractu Gentilitio And if in any Case in actibus arbitrariis facultatis aliqualis Declaratio arbitrii be sufficient A Reversion being to a Person and the Heirs male of his Body allanerly excluding Assigneys and other Heirs Quaeritur if it falls under the Forefaulture of the person to whom the Reversion is granted as said is Ratio Dubitandi That all others are excluded both Heirs of Line and Assigneyes And on the other part the Reversion is not meerly personal but Jus Haereditarium transmissibile to the Heirs foresaid of his Body Cogitandum Quae Ratio That a Reversion granted to a person only and not to Heirs and Assigneyes or a power to dispone reserved in the Right granted with the same may be comprysed and yet does not fall under Forefaulture Answer Nothing fals under Forefaulture that is personal only and which is neither cessible nor transmissibile ad haeredes Whereas a Reversion that is meerly Personal though it cannot be conveyed by a voluntar Right and Assignation may be comprised Seing by the Comprising the Person who has the Reversion his debt is satisfyed and he ought to have made use of the said Faculty and Right to that Purpose
on the other part surrogatum sapit naturam surrogati and it is due to be given ratione rei and a renunciation to be given by the Heir Quid Juris in the case of a Contract whereby Lands are sold and a price payable if the Buyer charge for implement and consign the price and the Disponer decease whether will it belong to his Heirs or Executors After Redemption of a Wadset or comprysing the Wadsetter or compryser dying whether is it necessary that their Heirs be infeft and re-renounce or if a renunciation will be sufficient the Wadset or comprysing being loused and extinguished by Redemption Wadset Heretable or Moveable WHen there is a provision in a Wadset-Right that requisition should not louse the infeftment Quaeritur If after requisition the Sum be Heretable or Moveable Ratio Dubitandi The Creditor declares his resolution to have the Sum And on the other part a Sum due upon a real Right appears to be Heretable It is thought that until it be actually uplifted it should be Heretable sed Cogitandum If the Wadsetter be year and Day at the Horn and thereafter the Wadset be redeemed Quaeritur If the Superior will have the Wadsetters Liferent of the Sum due upon the wadset If before Redemption the Wadsetter Dispone the Lands suppose they hold Ward will they recognise simply or only as to the Wadsetters interest Ratio Dubitandi The Wadset is upon the matter but a Hypotheck and he can forefault no more than he has And on the other part whatever paction be betwixt the Creditor and Debitor yet as to the Superior the Wadsetter is properly and formally his Vassal so that ex ejus persona he has all the fruits and casualities of Superiority If a Wadsetter holding of the King commit Treason Whether or not he forefaults the Lands or only his interest of Wadset Ratio Dubitandi As in the former Querie and that the King should have hominem vivum mortalem confiscantem and all the casualities belonging to his Superiority or to His Majesty as King ex morte vel delicto Vasalli and albeit the Right be redeemable yet that is to be understood alse long as the Right is in the person of the Wadsetter but not after it is Extinct by Forefaulture Wadset Proper IF a Wadsetter of Ward-Lands die before Redemption will the Marriage of his Heir fall And if it fall will the Debitor if he redeem be lyable to refound the avail In Proper Wadsets a great part of the Sum being paid will the Wadsetter be comptable for the duties effeirand thereto Ward A Compryser of Lands holden Ward being infeft Quaeritur If these Lands will Ward by the decease of the compryser and if the Marriage of his appearand Heir will fall Ratio Dubitandi a compryser is but an interim Vassal for suretie of his Debt And upon that consideration such a Right in England is considered as a Chattel and not Inheritance vide Comprysing quaest 14. litera C. If the comprysing be Redeemed will the Debitor be lyable to refound the damnage sustained by the Ward and Marriage Quaeritur If the Ward of the comprysers Heir will determine and expire upon the Redemption Quid Juris in the case of proper Wadsets if the Debitor after Redemption will be lyable to refound the foresaid Damnage The difference being that a comprysing is an involuntar Right and the Wadset voluntar so that the Creditor seemeth to take his hazard A Creditor being infeft in Ward Lands upon a Wadset bearing back-tack will they Ward upon his decease and the Minority of his Heir If they Ward will the Debitor have the benefit of the backtack during the Ward The Superior having in effect consented thereto We have seen a Charter granted to the Earl of Home viz. To George Earl of Home and Mareon Halyburton of the Earldome of Home and other Lands thereinmentioned some of them holding Ward Which Charter is granted to them in Liferent and to their Son Alexander in Fee dated in Anno 1538. which bears that though the said Alexander be infeft in Fee yet if the time of the Liferenters decease he be Minor his Ward and Marriage shall fall to the King Item It bears a reservation of Terce to the said Mareon notwithstanding of the said Fee If the Ward of a person who is Appearand Heir as to a Wadset Right do not determine by a Redemption of the Wadset And the same Question may be as to the Liferent of the person infeft upon the Wadset Answer It is thought that it will determine his Right being Jus resolubile And though the Ward be considered as fructus Dominii directi and being gifted it may seem that the Donator cannot be prejudged yet that is to be understood when the Vassal has an absolute Right but not when the Right is qualified and resolubile If the Appearand Heir of VVard Lands being pubes and Doli capax commit Treason will his VVard be determined vide Marriage questiones 17. 18. in litera M. Lands holding VVard being full the time of the Vassals decease by an Infeftment upon a Comprysing but the Comprysing being thereafter redeemed by the Debitors general Heir being Minor Quaeritur If the Superior will have the VVard Answer It is thought not seeing the Heir does not succed to the Lands as Heir to his Father who was not Vassal but as general Heir has Right to the Reversion whereupon he has Redeemed and Modus Forma is much to be considered If the Comprysing does extinguish being satisfied by Intromission Quaeritur If the Heir being Minor there will be a Ward in that case Answer It is thought not Seing the Comprysing does extinguish not ab initio but ex post facto and the Heir cannot be said to be the Appearand Heir of a Vassal the Lands being full as said is the time of his Fathers decease And albeit there is not a formal and ordinar legal reversion no Money being to be paid yet there is upon the matter Jus Retrahendi to the Appearand Heir vide Comprysing Quaest 37. litera C. Ward Lands QVaeritur A Superior of Ward Lands having confirmed a base Infeftment whether will the Subvassal be Lyable to the Ward or Non-entry falling by the decease of the Vassal Ratio Dubitandi Hope giveth only that reason in the case of Lands holden of the King that Confirmations bear a Salvo of all Rights Duties and Services By the Act of Parliament _____ The Superior during the Non-entry and Ward had Right only to the Feu-duty due to the Vassal by the Subvassal Quaeritur If the Superior be in the same case by the confirmation as he was by the said Act of Parliament notwithstanding the Act of Parliament 1606 in favours of Subjects Superiors of Ward Lands If the Appearand Heir of a Vassal of Ward Lands renounce to be Heir will his Marriage notwithstanding fall either single or double Ratio Dubitandi he was never Vassal and caelibatus is not
the Right of Lands and in effect a reversion which is not prestable by Executors It was Answered that the said Bond tho on death-bed may and ought to affect the Executry seing in Lecto the Defunct might doe any deed to burden his Executry And his obligements at that time are effectual as to his Executry And Loco facti imprestabilis succedit interesse which is prestable by Executors And if he had in leige poustie granted a Disposition of Lands and thereafter having Infeft ane other in the same he had become incapable to fulfil the obligements thereof both his Heir and Executor would be lyable for damnage and interest and there is the same reason in this case the Defunct as to burdening and disposeing of his Executry being in the same condition as if he were in leige poustie The Lords before Answer thought fit to try if the Right was in trust and if there had been a former Back-bond which the Pursuers Step-Mother had destroyed as was informed and certain other circumstances Gibson Clerk D. 158. Lord Maxwel contra Tennents of Duncow 16. Feb. 1672 FOund that the Defence upon the Acts _____ against these who during the dependence of Process invade or wound the adverse partie who by the said Acts tyne the cause and forfault their interest in question being in effect penance and founded upon delinquency may be proven even before the Lords prout de Jure as to Order and Ratihabition which was alleadged could not be proven by Witnesses to import the loss of Heretage D. 159. Commissaries of Edinburgh contra the Commissaries of Breichen 17. Feb. 1672. THere being a competition betwixt the Commissars of Edinburgh and the Commissars of Breichen to which of them the confirmation of the Earl of Panmures Testament should belong the said Earl having taken a House and stayed a whole Session in Edinburgh with his Lady Children and Familie in order to the breeding of his Children and other occasiones and having died there The Lords preferred the Commissars of Breichen being Commissars of the place where the said Earl had his principal dwelling and his interest and Estate D. 160. Lady Milnetoun contra Sir John Whytfurd 20. Feb. 1672. IN the Process at the instance of the Lady Milnetoun against Sir John Whytfurd the said Sir John after the Process had depended long and all endeavours to delay and prevent a Decision having insisted upon a Reprobator upon that head that the Ladyes Wittnesses were corrupted It was Alledged and urged by many arguments that a reprobator upon the ground foresaid after sentence in foro contradictorio which is the great security of the People could not be proven but scripto vel Juramento And accordingly the Lords Found that it was only probable that way and yet this day the Lords having again ordained the cause to be Debated as to the point foresaid anent the probation of corruption after sentence obtained they retracted their former Interloquitor and Found that Reprobators upon the head foresaid are receiveable and probable prout de Jure after Sentence These arguments were urged both at the Barr and in the Debate among the Lords viz. That Sentences in foro are the great Security of the People and if these should be convelled upon pretence of such personal exceptions against Witnesses there should not be a period of Pleas and Process 2. Upon the consideration foresaid many exceptiones which are admitted before sentence even after Litiscontestation are not recieved after sentence v. g. exceptiones noviter venientes ad notitiam and ex instrumentis noviter repertis 3. Prescription being the great security of the People ne dominia sint incerta should be weakened if after Decreets in foro founded upon 40. years purchase the same should be convelled upon probation by Witnesses that the Witnesses upon whose Testimonie the Decreets proceeded were corrupted 4. There should be progressus in infinitum if the Testimonies of Witnesses should after sentence be reprobated by other Witnesses and after sentence in the Reprobator the Testimonie of the reprobatorie Witnesses should be reprobated by others sic in infinitum 5. Reprobatores were only in use when the Designation of Witnesses before they declare from their duelling and vocation and other circumstances was questioned as false which being obvious and easie to be knowen It is not to be presumed that the reprobatorie Witnesses will declare falsely anent such points which may be easily tryed But the Corruption of Witnesses being ane occult and unwarrantable practice it is not to be presumed that witnesses were present and conscious and the reprobatorie Witnesses may be suborned and declare falsely impune 6. Our Law is Jealous of Probation by Witnesses they being for the most part viles personae and yet habiles and Writes cannot be taken away by such probation and Sentences in foro are scriptura publica solennis 7. By our practique dicta testium cannot be questioned post sententiam tho by the comon Law and the Law of other Nations they may and there is less reason to admit personal exceptions contra testes to be proven by Witnesses 8. As to the Incommodum That a Door should be opened to Corruption if the Testimonies of Witnesses after Sentence should not be questionable upon that head It is easily Answered Seing Witnesses may be pursued Criminallie and severely Punished if they may be discovered to have been Corruped or false Actores Cuninghame Lermonth alteri MckenÈie Harper D. 161. Mr. James Reid contra the Lady Dundie Feb. 21. 1672. AN Infeftment granted to the Lady Dundie by her Husband in recompence of a former provision she had by her Contract of Mariage and which she had renounced was questioned by a Creditor who also was Infeft upon that ground that the Ladyes Right was base and tho Rights granted to Wives upon their Contract of Marriage or after Marriage when they have no provision or in recompence of former provisiones are sustained albeit base because the Husbands possession is the Wifes possession yet the Right in question ought not to be sustained upon that ground In respect the Husband was not in natural possession the Lands being lyferented by his Mother and by the Act of Parliament the possession whereupon base Rights are sustained is only to be understood of natural possession The Lords preferred the Lady and repelled the said Defence upon these considerations that Infeftments given to Wives in the cases above-mentioned are construed to be publick and are not persumed to be fraudulent And Wives are not in the condition of other Creditors who may perfect and make their Rights publict whereas Wives can do nothing themselves and it is to be presumed that Wives are provided by their Husbands So that these who are to acquire Rights from them ought to enquire if their Wives be Infeft specially seing since the Act of Parliament 1617 anent registration of seasings they may easily know the same Cuninghame c. and
there is not only an Assignation which is the deed of the Cedent but a delegation and the Debitor doth accept and consent and becomes Debitor as in this case as appears be the foresaid Letter written to the charger compensation is not receivable It was Replyed for the Suspender that the Letter is not positive that the Suspender should become Debitor but only in these terms if he must be Debitor to the charger and that upon the matter he is not Debitor to him in so far as he has a ground of compensation Whereunto It was Answered That these Words If he should be Debitor are to be understood only in Relation to the Complement and Assurance contained in Melgum's Letter viz. If he should not take course himself with the said Debt and that the Letter is positive that the Earl should pay the Annualrent and also the Principal Sum which he could not do presently and if the Earl had intended to compense he should have told the Charger that he had a Ground of Compensation in which the Charger would have had recourse against the Cedent and would not have relyed upon the Suspenders Letter The Lords Found the Letters orderly proceeded in respect of the said Answer and Letter D. 192. Gordon contra Pitsligo 12. Novemb. 1674. MR. Thomas Gordon and his Father pursued the Lord Pitsligo upon a Promise to enter them to certain Lands which they had acquired holden of him It was Alledged That if there was any such Promise it was to be performed in write by a Charter to be granted by the Defender and there is locus Poenitentiae until the Charter be subscribed It was Answered That the Promise was referred to the Defenders Oath and albeit there is locus poenitentiae in Synalagmis and Contracts yet where there is a positive Promise to give or do any thing the same being verified ought to be fulfilled and there is no locus poenitentiae upon pretence that it should be fulfilled in Write The Lords repelled the Alledgance in respect of the Answer foresaid Monro Clerk Newbyth Reporter D. 193. Paton contra Ardoch eod die WIlliam Paton Son to the deceast Dr. Paton pursued Stirling and Sir Harie Stirling of Ardoch as representing his Father for Implement of a Write granted by his Father on Death-bed whereby he was obliged to denude himself of the Lands of Panholls being satisfyed of such Sums of Money as should be found to be due to him by the said William and his Father after Compt and Reckoning It was Alledged for the Defender That his Father had acquired a Right to the said Lands from the said Dr. Paton being his Brother in Law having maryed the said Sir Henrie's Sister upon a Back-bond containing a Reversion in favours of the said William the said Sir Harie's Nevoy and that thereafter the said William being Major had discharged the Reversion so that the Defunct and now his Heir has an irredeemable Right to the said Lands and that the same pretended Deed on Death-bed could not take away the same It was Replyed That the Defunct on Death-bed did and might exoner his Conscience by a Declaration that the Discharge of the Reversion was on Trust And there were other Adminicles and Presumptions concurring to evince that it was a Trust viz. The near Relation of the Parties the Defunct being the Pursuers Uncle and that the Bonds granted by the Doctor either to the Defunct himself or to other Persons from whom Ardoch had Right were not retired which would have been if the Right in Ardoch's Person had not been on Trust It being against Reason that Ardoch should have both Right to the Lands and to the Debts for which the said Right was granted It was Duplyed That the Defender being an Infant neither doth nor is obliged to know what was betwixt his Father and the Pursuer unless there were a Write to clear the same and his irredeemable Right by the Discharge of the Reversion cannot be taken away by Presumptions and that a Write on Death-bed upon what pretence soever cannot prejudge the Heir And it cannot be thought but that if a Trust had been intended the Pursuer would have taken a Back-bond as he had done formerly and the Defenders Father might have given a Discharge of the said Bonds as to personal Execution The Lords Found That the Trust was not proven and that the Declaration on Death-bed could not prejudge the Heir Thereafter it was urged for the Pursuer That at least he should have Action against the Defenders as Executors for affecting the moveable Estate belonging to the Defunct and in Implement of the said Write at least in subsidium as to Damnage and Interest Upon a Debate amongst the Lords themselves It was urged That the said Writ being in effect a Reversion was only prestable by the Heir who only could denude himself of the Right of the said Lands And persons on Death-bed ipso momento that they become Sick they lose their legitima potestas either as to prejudging their Heirs or their Bairns and Relicts And they cannot dispose of their Deads Part but by a Nomination or Legacy and a Reversion could not be given by way of Legacy The Lords Found That the said Write could not affect the Executry Gibson Clerk D. 194. The Executors of the late Bishop of Edinburgh contra the present Bishop eod die THE Executors of the late Bishop of Edinburgh Pursued the Commissars and Procurator Fiscal and the now Bishop of Edinburgh for the Quots of Testaments that were either confirmed or had fallen by the decease of Defunct persons and were confirmable before the said late Bishops Death and fell under his Executry And also for the Quots of all Testaments confirmed or confirmable for the half year after the said Bishops decease and falling under the Ann. The Lords Found That the Quots of Testaments that were not confirmed did neither fall under the Bishops Executry nor the Ann But only the Quots of such Testaments as were confirmed either in the Bishops Lifetime or during the Ann Upon these Grounds which were debated at the Bar but more at length among the Lords themselves viz. 1. The Quots of Testaments do not belong to Bishops as having a share and interest in the Moveable Estates of Defunct Persons after their decease which are only divided betwixt their Executors and Bairns and Relict but the said Quots are in effect Sentence or Confirmation Silver which is given to the Bishops upon that account and consideration That by their Sentence or Confirmation which is instar Sententiae being actus voluntariae jurisdictionis The Defuncts Estate is secured to be forth-coming to all persons concerned both Creditors Relict Bairns and others And therefore until that be done there is no Quot nor confirmation-silver due 2. The Lords of Session had by Act of Parliament as a part of their Sallary Sentence-Silver viz. Twelve pennies of the pound until the same was taken from them by Act
Fidejussoribus ff lib. 46. Tit. 1. leg 39. Et leg 36. ibid. Et. Leg. 11. Cod. eod Tit. The Lords Decided as said is In respect of a Practique produced betwixt _____ in anno _____ relating to a former Practique in anno _____ D. 229. The Minister of Tulliallane contra Colvill of Larg and Kincardne 28. January 1675. IT was Found by the Lords Commissioners for Teinds That the Heretors of Lands having Right cum decimis inclusis were not lyable to the Augmentations of Ministers Stipends and that no Locality could be given out of their Teinds the saids Infeftments being before the Year 1587. And that the Feu-duty payable to Church-men for Stock and Teind in Victual was not lyable thereto because the Teinds not being separate from the Stock and the Heretors having Right to the Lands free of Teinds in effect there were not decimae And by the Acts of Parliament and the Kings Decreet Arbitral Teinds are lyable to Ministers Feu-duties in consideration that the Lords of Erection and Titulars had Right thereto from the King since the Act of Annexation And that the King who might have questioned their Rights was pleased by the said Acts of Parliament and Decreet Arbitral to affect them with the burden of Ministers Stipends whereas such Rights cum decimis were granted by Church-men and did not flow from the King but from them at such time as by the Law then standing they might have granted the same D. 230. Doctor Hay contra Jamieson and Alexander eod die GEorge Steuart Advocate having comprised from _____ Con the Lands of Artrochie and others did dispone the said Lands and his Right of Compriseing to _____ Neilson and thereafter the said Neilson failing in payment of the price the said George Steuart did Comprise back from the said Neilson the said Lands and Andrew Alexander did also comprise from the said Neilson the said Lands and his Right foresaid Doctor Hay Having also comprised from _____ Con the foresaid Lands pursued an Improbation of the said first Comprysing at George Steuart's Instance and having called thereto the said George Steuart and Neilson and Marjorie Jamison who pretended Right to the said Lands he did obtain a Certification against two Bonds which were the Ground of the said Comprising upon Compearance and a long Dependance and long Terms assigned for produceing the said Bonds And thereafter the Doctor pursued a Removing from the said Lands against the said Andrew Alexander and others And it was Alledged for the said Alexander That he had Right to the said Lands and was in Possession upon a Right from George Steuart who had Right thereto as said is by a Comprising against _____ Con the common Debitor Whereunto It was Answered That the Defenders could not found a Defence upon George Steuart's Comprising Because the saids Bonds being the Grounds thereof were false and improven To which It was Duplyed That the Certification against the said Bonds was only granted against George Steuart and that the said Andrew Alexander was not called and that now there is produced the foresaids Bonds And that the Extracts of the same out of the Register of the Commissariot of Aberdene had been formerly produced but the Principals which were in publica custodia as the warrands of the same could not be then found by reason of the disorder of that and many other Registers upon occasion of the late Troubles and the same being now found aught to be received and sustained as the Grounds of the said Comprysing Seing they are not improven and found false by a Decreet of Improbation upon tryal of the Falsehood But a Certification is only given against the same for not production which at the most doth amount only to a presumptive Falsehood which is now taken away as said is by production of the saids Bonds seing praesumptio cedit veritati It was Answered for the Pursuer That all Persons whom he was obliged to take Notice of and to call to the Improbation of the first Apprysing were called viz. The said George Steuart at whose Instance the said Comprising was deduced and who had also Comprised from Neilson the Right thereof as said is and Neilson himself and that he needed not call the said Alexander who had only a subaltern Right and was not infeft and albeit he had comprised from Neilson yet by that Comprising he had not such an interest as the Pursuer was obliged to know in sua far as the Right of the Lands in question was settled in the Person of the said George Steuart by the Comprising against Neilson after which Neilson had only a Reversion and the said Neilson was called himself as said is And the said Alexander's Right by his Comprising against Neilson being only a Right of the Legal of George Steuart's Comprising against Neilson the Pursuer was not holden to take notice of the said Right and the said Reversion is not only now expired but was expired the time of the obtaining of the said Certification no Order being used thereupon And albeit the said Andrew Alexander was not called yet he did compear in the said Improbation and albeit he pretends that his right was reserved the said pretence is of no weight seing it was reserved only as accords And Certifications being the great Security of the People and specially where the same are obtained upon compearance and after diverse termes are assigned and after Certification granted the samen stopt for a long time upon expectation that the Writes may be got as in this Case the samen cannot be canvelled and loosed praetextu Instrumentorum noviter repertorum The Lords For the Reason foresaid thought hard to loose the said Certification but specially in this case seing the said Alexander will have and take the advantage of Stuarts expired Comprysing and exclude the Doctor who was a true and real Creditor to whose prejudice the said George Stuart and the other Defenders had patched up not only the said Comprysing for small Sums but other Rights which the Donator had been forced after he had Comprysed to question by a Reduction and had prevailed after a long dependence and after they had possest the Lands for a long time And on the other hand the said principal Bonds being now produced they thought it hard that the Doctor should take advantage of the same to exclude the Defenders altogether and therefore they proposed to the Doctor that he should grant a Reversion to the said Alexander upon payment of what was justly due to him within the space of two Years And the Doctor acquiesceing they decerned in the Removing with the quality foresaid Lord Glendoick Reporter Gibson Clerk Actor Chalmers alteri Thoirs Vide 17. February 1676. inter eosdem D. 231. contra Maxuel 29. January 1675. A Bill of Exchange being drawn upon three Merchants without mentioning that it was drawn upon them either severally or conjunctly and one of the persons upon whom it was drawn being pursued for the whole Sum
reason why the Defunct should have appointed the said Election to be in manner foresaid for the first time and not thereafter And if the Colledge had not the Right foresaid it should not belong to the Town but the Defuncts Heir who doth concur with the pursute Newbyth Reporter Robert Hamilton Clerk D. 270. contra 18. June 1675. IN an Adjudication the Appearand Heir being called and his Advocates having compeared and desired to see the Process It was Alledged That he had no Interest having renounced and that his compearing was only to retard the Pursuers Diligence that other Creditors might come in This point of form being reported viz. Whether his Procurators should see And if they should see whether in communi forma or not or in the Clerks hands Some of the Lords were of the Opinion That being a Person necessar to be called and being called his Procurators should see in communi forma the Law making no distinction and tho he had Renounced yet he had Interest to see and object whether the Pursuers Debt was the true Debt or satisfied and if it appeared that it was satisfied he may notwithstanding his Renounciation enter if he thought fit And the Renounciation may be questioned as false The Lords nevertheless Found That he should see only in the Clerks hands within 24. Hours tho it was urged that if the Party were in Town that course might be taken but the Party being at the distance of 100 Miles or any other considerable distance so that in so short a time the Procurator could not get Information it were better that in such cases the Processes should be seen in communi forma For if Parties had prejudice they would apply again by Bills which would occasion greater trouble and delay Redford Reporter D. 271. E. Weems contra Bruce 22. June 1675. A Bond being granted by the Earl of Weems to _____ Bruce and his Wife Gaw and the longest liver of them two and to the said Bruce his Heirs and the said Gaw the Relict having intented a pursute for payment of the Sum due thereby It was Alledged it was prescrived there being more than 40. Years Elapsed since the granting It was Answered That the time of the Husbands Lifetime the Bond did not prescrive against the Pursuer being cled with a Husband and so non valens agere The Lords upon the Report made by my Lord Newbyth Did ex tempore Find That it did not prescrive during the Husbands time Tho some of them were of the opinion that the case was of importance as to the Consequence and was to be further thought upon and debated in respect it cannot be said but there was a Person valens agere ever since the date of the Bond the Husband dureing all this time being valens agere and after his decease the Wife and the Husbands silence being the Fiar and the Person who had Right for the time being joined with the Relict her silence and both being joyned by the space of 40. years all the reasons of Prescription concurred in the Case viz. That Debitors should be secured after so long a time and that there is praesumptio Juris the Bonds may be made up and nothing thereon done till all the witnesses were dead And that maxim contra non valentem agere c. is to be understood in the case where there is not a person having Right valens agere by the space of 40 years or in the Case of temporary and momentary Prescriptions but not in Prescriptions longissimi temporis Otherways Prescription being the great Salvo and Security of People might be eluded and a person acquiring a Right of Lands possest by his Author peaceably for the space of 40. Years without any Interruption should not be secure seing it may be pretended That the Husband having been silent fourty Years without any Interruption his Wife who pretends Right to the Lands by Liferent or otherways non valebat agere during the Marriage D. 272. Bruce contra Bruce 23. June 1675. DOctor Arnot having disponed to one of his Nevoys an Annualrent out of certain Lands belonging to him and thereafter having disponed to another of his Nevoys the elder Brother of the Annualrenter the foresaid Lands A poinding of the Ground was intented at the Instance of the Person who had Right to the Annualrent And It was Alledged That the Disposition of the Annualrent was never delivered by the Doctor but was beside him the time of his decease and was viis modis gotten out of his Charter Chest and given to the Pursuer To which It was Answered That the Pursuer had the Paper in his Hands and it was presumed to be delivered And 2do Tho it should be supposed that the said Right was amongst the Doctors Papers the time of his decease yet the Doctor having made the said Right publick by an Infeftment and Seasin thereupon to the Pursuer which was Registrat albeit he might have evacuate the said Right by destroying the Disposition yet nevertheless having keeped the same by him undestroyed it ought to be construed in Law that being Uncle to the Pursuer and having given the said Right upon the account of the said Relation he kept the same by him to the Pursuers behoove unless it could be made appear that the Doctor did any Deed to recal and evacuat the said Right The Lords repelled the Defence of not delivery in respect of the Answer Hatton Reporter Mr. Thomas Hay Clerk D. 273. Dowglass of Kelhead contra Carlyle and others eod die KElhead pursued a Declarator of Non-entry pretending that he was Superior of the Lands libelled In which Process It was Alledged That he was not Superior of the said Lands In respect the Right libelled that he had from my Lord Queensberry was to be holden of the Disponer and Queensberry being Superior to the Defenders could not interpose another betwixt him and them And upon the proponing of the said Alledgance the Pursuer was forced to reply upon a Right to the Casualities granted by a Paper apart by my Lord Queensberry to the Pursuer and thereupon Process was sustained and decreet given for the retoured dutie before the intention of the Declarator and the full Avail and Rent of the Land after the intention of the Cause Of which Suspension being raised upon these Reasons 1mo That after Decreet of Declarator was recovered the Superior and his Donator has Right to the Lands during the Non-entry and may remove Tennents or uplift the Duties from them but before Declarator there could not be a Sentence for Poinding the Ground for the full avail 2do Tho the Ground could be poinded for the full Avail yet the Pursuer has no Right but to the Feu-duties even after the intention of the Cause before the Pursuer did Found upon and produce the Assignation foresaid as his Right to the Casualities seing there being a question whether my Lord Queensberry or the Pursuer had Right to the
Superiority and the Libel being only founded upon the Pursuers Right as Superior the Defender was in bona fide and could not enter nor be lyable for the full avail until the Question was cleared by production of the said Assignation and therefore could not be lyable until the same was produced The Lords As to the first Reason Found That after the intention of the Declarator of Non-entry at the Instance of the Party having Right the Defenders are lyable in the full avail and that the real conclusion of poinding the Ground for the same may be sustained seing the Ground may be poinded for a Rent liquidate as it was in this Case and when Lands are not retoured the Pursuer even before Declarator may crave Right to the Rents As to the Second The Lords were all clear that the Defender was not lyable for the full avail but after production of the Title whereupon the Pursute is sustained But it being moved that the Defenders having proponed the said Alledgance before the same was repelled and decreet given out for the full avail after intention of the Cause some of the Lords were of the Opinion that there was now no Remedy Others thought That there being a clear iniquity and prejudice to the Party and the Lords being convinced of the same they ought to do justice to the party And the question being brought before them upon Suspension ex incontinenti and not ex intervallo the Sentence non transivit in rem judicatam Whereupon some heat having arisen among the Lords while some did plead the Credit of the House and the Security of the People that the Decreets of the Lords in foro should be an ultimate and unquestionable Decision and others Thought and did represent that the Honour of the House and Interest and Security of the People consists in this that Justice should be done and no evident Iniquity should be without Remedy Especially where a Decreet has not taken effect and become res judicata but is drawn in question immediatly by a Suspension The Lords did demur and decided not that Point Castlehil Reporter Gibson Clerk D. 274. Hamilton of Munkland contra _____ Maxuel eod die UPon the Report of Redford betwixt Hamilton of Munkland and _____ Maxuel The Lords Found That a Debt due by a Person who had disponed his Land upon the account that a Manse was built and that he was resting his Proportion of the Charges is not debitum Fundi Hamilton Clerk D. 275. The Colledge of Aberdeen contra the Town of Aberdeen 24. June 1675. IN the Case abovementioned of the Colledge against the Town of Aberdeen The Lords having heard again a Debate in praesentia Did adhere to what they had Found formerly and did Declare Jus eligendi of a Bibliothecare to pertain to the Colledge Vide 17. June 1675. inter eosdem D. 276. Earl of Lauderdale contra Lady and Lord Yester 25. June 1675. THE Duke of Lauderdale having settled upon the Lady Yester his Daughter his Estate and thereafter by Contract of Marriage betwixt the said Lady and my Lord Yester containing a Procuratory of Resignation whereupon Infeftment followed the said Estate is disponed and resigned by her with consent of her Father and him for his Interest in favours of the said Lady and the Heirs of her Body of that Marriage and these failÈiening of any other Marriage With Provisions contained in the said Procuratory And in special that the said Lands should be redeemable by the Earl upon a Rose-noble and that upon an Order used the said Right in Favors of the Lady and her foresaids should be void and two other Provisions in Case of Redemption viz. 1mo That in Case the Duke of Lauderdale should think fit to redeem that the Duke and his Heirs should be lyable and obliged to pay likeas they bind themselves by the said Provision to pay to the Lady and her foresaids besides the Tocher 7000. lib. sterl at the first Term after the Dukes decease And 2do That whereas by the said Contract the Lady if the Estate had not been redeemed was obliged to pay all her Fathers Debts and Legacies she should be free of the same in case of Redemption Which Provisions are contained in the Infeftments The Duke having used an Order and having intented thereupon a Declarator of Redemption concluding that the Lands should be declared lawfully redeemed and that his Daughter should be decerned to denude her self and to grant a Procuratory for Resigning since she was infeft by publick Infeftment It was Alledged That as to that Conclusion that she should renounce there was no Warrand for the same seing there was not a Reversion in these Terms that she should grant the Lands orderly redeemed and renounce in which Terms Reversions which are pacta de retrovendendo are ordinarly conceived but that the Reversion whereupon the Order is used is only a Provision contained in the said Contract of the Tenor foresaid with a resolutive clause in case of Redemption which imports no Obligement upon the Lady nor pactum de retrovendendo but only Jus Retractus and a Faculty and Power to the Father to Redeem and in case of Redemption the expiring and Nullity of the Right 2. It was Alledged That tho the Lady were to Renounce her Renounciation ought to be qualified and burdened with the provisions contained in her Right and in special with the foresaid provision as to the secureing to her 7000. lib. Sterl and the other Provision foresaid for securing her relief of the Debts It was Replyed That as to the said first Alledgance that inest in all Contracts bearing Reversions whether in the formal Terms of a Reversion or Provisions upon the matter importing a Reversion and ex stylo all Decreets of Redemption do contain the said Decerniture to Renounce And the Duke being denuded in favours of his Daughter by publick Infeftment the habilis modus to return again to his Right upon Redemption is upon the Resignation As to the 2d It was Answered That the said Provisions are not in the Reversion and amount only to a personal obligement upon the Duke and his Heirs but not to be a real burden and incumberance upon the Right As to Debts It was Answered That there needs no other security for the Lady her relief of the same seing she was to be lyable thereto in contemplation of the Right if it should stand effectual in her Person And it s provided in case of Redemption she should be free thereof It was Duplyed as to the said provisions That the same being in the body of the Procuratory and Infeftment are real and they are insert unico contextu with the provision that the Lands shall be redeemable and doe qualifie the same And that notwithstanding that it be provided That in case of Redemption she should not be lyable to the Debts yet she may be in hazard to be overtaken as Successor Titulo Lucrativo In respect by the said Right it
should desire his Superior to offer him a Person that he might marry or to consent that he should marry such a Person as he thought fit for him and the Superior should refuse both it were hard that notwithstanding the Vassal should be lyable to pay the Avail of his marriage The Lords nevertheless Found That the single Avail of Marriage is not penal Actores Lockheart and Hamilton alteri Cuningham Mr. John Hay Clerk In praesentia Vide infra 23. January 1677. inter eosdem D. 416. Mitchelson contra Mitchelson 4. January 1677. A Younger Brother being served before the Baillies of Kirkcaldie Heir of Line to the immediate elder Brother Thereafter the eldest Brother did desire to be served Heir of Conquest to the same Person and the Baillies not being clear to proceed in respect of the former Service unless it had been reduced The Lords Thought That upon their Refusal the Elder Brother may Advocate for Iniquity and that the Brieves may be served before the Macers and that the Eldest Brother being wronged by the foresaid Service to which he was not called so that it was res inter alios acta he ought not to be prejudged thereby nor put to the trouble and Charges of a Reduction Gibson Clerk D. 417. Earl of Glencairn contra Brisbains 5. January 1677. FRancis Freeland of that Ilk having disponed to John Mcknair and Robert Hamilton irredeemably and they thereafter having disponed the same with consent of the said Francis to John Brisbain And the said John having granted a Reversion to the said Francis his Heirs of his own Body allanerly for payment of the Sum of 8000 merks and what farder Sums should be debursed for improving the Lands building or repairing the Houses with Annualrent frae the Debursements upon the said John Freeland his own Declaration and that after the first Term after the said Francis his decease The Earl of Glencairn Creditor to the said Francis Freeland alledging that the said Reversion was granted by Fraud and Contryvance and in prejudice of him and Lawful Creditors and that the said Reversion was granted in manner foresaid not in favours of his Debitor but his Heirs for eludeing their Execution Pursued a Reduction of the said Disposition made in favours of Hamilton and Mcnaire and a Declarator that Brisbaines Right should fall in consequence and that it should be lawful to him to comprise the said Reversion and to use an Order as if it had been granted to the said Francis Freeland himself The Lords Thought That if the Price were not adequate which was to be tryed the Conclusions foresaid should be sustained Thesaurer-depute Reporter Gibson Clerk D. 418. Creditors of Mouswel contra The Lady and Children 6. January 1677. JAmes Douglas of Mouswel by Contract of Marriage betwixt his Eldest Son James Douglas and _____ Lawrie did dispone to his Son the Fee of his Estate reserving his own Liferent and with a Provision to be contained in the Infeftment That it should be lawful to him to take on and burden the Estate with the Sum of 18000 merks for the Provision of his other Children and for doing his other Affairs And accordingly the said James did provide to eight Children 9000. merks out of the said Estate by a Bond granted within a year after the said Marriage and Infeftment thereupon Both the Father and the Son the Fiar being deceased and the Son having left only one Son of the Marriage an Infant there followed a Contract â—etwixt Agnes Rome Grandmother to the Child and Janet Lawrie the Mother and certain Friends of the Family whereby it was agreed that the Grandmother should quite 200 merks of her Liferent yearly and the Mother 400 merks of her Liferent and that the Grandmother should Confirm her Husbands Testament for payment of his Debts and for the superplus of the Debt the Friends should undertake the same and upon payment having taken Right thereto should superceed personal Execution until the Child were major the Annualrents being in the mean time payed by the Grandmother as Tutrix to her Grandchild The Grandchild having deceased while he was yet Infant both the Creditors and the Friends and the Relict did take a course to affect the Estate by Comprysings and upon their Infeftments and Rights having pursued the Tennents so that they were forced to raise a multiple Poinding It was Alledged for the Creditors That the Grandmother her Liferent ought to be restricted conform to the said Contract whereby she had discharged the said 200. merks yearly Whereunto It being Answered That res devenerat in alium casum and that the said Restriction was in favours of her Grandchild and for the standing of the Family and in contemplation of the Undertaking and Obligement foresaid of the Friends which they had not done and cessante causa cessat effectus and the Estate being altogether ruined she ought to be in her own place And albeit it was thereto Replyed by the Creditors That whatever might be pretended to be the impulsive Cause yet the said Restriction being once granted doth continue notwithstanding of the pretence foresaid seing there is no resolutive Clause or Provision that the Case above-mentioned falling out the Grand-mother should be in her own place but on the contrare it appears by the Contract that the Death of the Child was then under her consideration In respect it is provided expresly that if the Child should die the Restriction of the Mothers Life-rent should cease and she should be in her own place and so the Provision foresaid being only in favours of the Mother and not of the Grand-mother Exceptio firmat Regulam in non exceptis It being considered likeways there was not the same reason for the Grand-mother In respect by the decease of the Child the Mothers Interest in the Estate did altogether cease whereas the Heir who did succeed to the Child was the Grand-mothers own Son And as to the pretence that the Friends had not fulfilled their part of the Contract It was Answered that the Contract being in effect in favours of the Family both the Relict and the Creditors were thereby obliged and might yet be urged to fulfil their obligements And tho they should both fail the Family could not be prejudged and that the Freinds accordingly as they were obliged they had taken course with the Debts and tho it was pretended that they had not done it debito tempore the said pretence was of no moment seing no time is limited by the Contract Nevertheless the Lords Reponed the Relict against the said Restriction In the same Cause There being a Competition betwixt some of the Creditors whose Debts were Contracted by the Grand-father Agnes Rom's Husband before his Sons Contract of Marriage and betwixt the Children who were Infeft as said is upon the Bond of Provision granted by their Father conform to the faculty foresaid It was Alledged for the Creditors That they ought to be preferred In respect that upon Bonds of
the Qualifications libelled were not relevant to import such a force and metus as could be the ground of a Reduction of the said Right ex eo capite tho they were convinced that the practice foresaid is most unwarrantable and dolosa and that thereupon the Right may be questioned as to Sir John himself but not as to a singular Successor and that there is a difference betwixt a Reduction ex capite metus which is competent against singular Successors and a Reduction ex capite doli which is not competent against a singular Successor who bona fide has acquired a Right for an Onerous Cause But diverse of the Lords were of Opinion that the Defence foresaid that there was no damnum was most relevant for these Reasons viz. All Restitutions upon what mediums soever whether metus or dolus or lubricum aetatis are against damnum and prejudice for frustra should Restitution be craved if there be no damnum 2. It is evident by diverse Laws and the Title foresaid quod metus c. That ex edicto quod metus causa c. non datur actio si nihil absit succurritur only captis laesis 3. By the Civil Law there were diverse Remedies competent to these who had been forced to do any deed viz. A Civil action ex Edicto Praetoris and a Criminal Action ex lege Julia and a Penal Remedy ex decreto Divi Marci That a Creditor by force extorting what is truely due amittit Jus Crediti And our Reductions ex capite metus are but Civil Actions as that ex Edicto And the said other Remedies being penal by the Municipal Law of the Romans cannot be introduced by the Lords of Session being Civil Judges without an Act of Parliament 4. All Restitutions should Repone both Parties in integrum and it were unjust that if it were constant and the Lords were convinced upon their own certain knowledge that there had been an antecedent Minute and that the same had been cancelled upon the granting of the said Disposition that Minto should be restored and not the said Sir John that now res non est integra seing the antecedent Minute is not Extant and tho it were Extant it would be ineffectual In respect Minto has Disponed the foresaid Lands to this Pursuer who is Infeft and having the first Infeftment would be preferable whether the Minute were Extant or not 5. As to the pretence that was so much urged that it would be of dangerous consequence that such Deeds extorted by force should be sustained upon the pretext of non damnum and that it would tend to encourage such practices the same is of no weight seing the Deed being just upon the matter may and ought to be sustained and yet the way of procureing the same may be severely punished 6. As to the difficulty of Probation there being no Adminicles in Write that there were such a Minute It is not considerable Seing multa permittuntur causative which cannot be done directly and that tho the Result of Probation by Witnesses may be the making up or taking away of Writes which cannot be done directly but by Write yet when that which is to be proven is in Fact it may be proven by Witnesses as in the same case that the Disposition in question was Extorted it may be proven by Witnesses to take away the said Disposition And if a person should be forced to grant a Disposition of Lands of 20. Chalders of Victual of Rent and in Exchange should get a Disposition at the same time of other Lands of the half value it were a good Defence and probable by Witnesses that the Pursuer did get the time of the granting the Disposition of Lands worth 20 Chalder Victual a Disposition of less value and Contingentia causae and of a Transaction and circumstances of the same ought not to be divided but may and ought to be entirely proven by Witnesses alse well for the Defender as the Pursuer Actor Lockheart and Sinclair alteri Cuningham and MckenÈie Mr. John Hay Clerk In praesentia D. 420. Commissar of St. Andrews contra Watson 11. January 1677. THE Lords sustained a pursute at the instance of the Master of the Ground against these who had bought from his Tennent his Corns and other Goods wherein the Pursuer had a Tacite Hypothâ—â—k Glendoich Reporter Mr. John Hay Clerk D. 421. Viscount of Oxenford contra Mr. John Cockburn eod die MR. John Cockburne having gone Abroad with the Viscount of Oxenford and after his Return having gotten several Bonds from the said Viscount of considerable Sums and also a Pension of 1000 Merks And having charged upon the same the Viscount Suspended upon that Reason that the said Mr. John dureing their being Abroad had received great Sums of Money remitted to him upon the Viscounts account for which he had not Compted and that after Compt and Reckoning he will be found Debitor to the Viscount in more than the Sums charged for And it being Alledged by the said Mr. John that he is only comptable for his Intromission and that his Actual Intromission ought to be Instructed by Write or by his Oath and the Declarations of Merchants and Factors Abroad cannot be Probation to bind upon him so great Intromissions The Lords considered the condition of the Viscount for the time that he could not Intromet himself and that the said Mr. John had such Influence upon him that having been his Governour at Schools and upon the desire of his Friends being put from him by an Act of Council He notwithstanding without and contrare to the Advice of his Friends carryed him Abroad and since his return had gotten from him the Bonds foresaid And therefore thought fit to try the Business to the bottom And to ordain the said Mr. John to give in his Compts of what was received and debursed when the Viscount was Abroad and the Factors and other Witnesses to be Examined concerning his Intromission and whether or not any Moneys that were remitted for the Viscounts use were received by the Viscount himself or by the said Mr. John Redford Reporter Mr. John Hay Clerk D. 422. Laird of Bavilay contra Barbara Dalmahoy eod die A Horning against a Person dwelling within the Shire of Edinburgh upon Lands Annexed to the Barony of Renfrew being denounced at Edinburgh was sustained In respect that the said Lands were Locally within the Shyre of Edinburgh And the Rebel In respect of his Residence there was Lyable to the Jurisdiction of the Sheriff and to all Burdens and had all Capacities competent to the Shire of Edinburgh Mr. John Hay Clerk D. 423. Baillie contra Somervel eod die THERE being a Provision in a Contract of Marriage in these Terms that 5000 Merks of the Tocher should return to the Father in Law in case his Daughter should decease before her Husband within the space of 6 Years after the Marriage there being no Children betwixt them then on life
Immobilia Ib. Immobilia per applicationem aliis modis 95. Imposition upon the Pint of Ale Ib. Impositions of Burdens upon Shires 96. Impositions voluntary upon Shires Ib. Improbations Ib. Impugning the Authority of Parliament Ib. Incendiarium 97. Incorporations Ib. Infeftment of Annualrent Ib. Base Infeftment 98. Infeftment in a Right both of Property and Annualrent Ib. Infeftment for the use and beho of of another 99. Conditional Infeftments Ib. Publick Infeftments Ib. Inhibition 100. Inhibition upon Teinds 101. Insinuatio Ib. Instance 102. Instantia Ib. Instrumentum Guarentigiatum Ib. Interdiction Ib. Inter decem Dies Ib. Intrometter Ib. Invecta illata 103. Duobus Investitis per modum Confirmationis sed posterius acquirentis Jure prius confirmato uter sit potior Ib. Investitura 104. Jura complexa Ib. Juramentum Ib. Jurisdictio Ib. Jurisdictio Camerae Imperialis Ib. Jus accrescendi Ib. Jus Mariti Ib. Jus Mariti Relictae 106. Jus Relictae Ib. Jus Superveniens Ib. Justice-General 107. K. Nearest of Kin. Ib. KING 108. King and Prince Ib. L. Laudimium Ib. Lawburrows for Burghs Ib. In Lecto Ib. Legacies 110. Conditional Legacies Ib. Legal Reversion 111 Legatars and Intrometters Ib. De Legatis Ib. Legatum rei alienae Ib. Legatum a Legatario acquisitum ante mortem Defuncti 112 Res eadem duobus Legata Ib. Legitima Liberorum Ib. Legitimation per subsequens Matrimonium 115. Marriage and Legitimation 116. Leuteratio Ib. Libellarius Contractus Ib. Liberi Ib. Liferenter Ib. Executors of a Liferenter 117. Liferents Ib. Quando Dies cedit as to Liferenters 118. Vasallus Ligius Ib. Limitation of Fees Ib. Litiscontestation 119. Quo casu Possessor in mala fide constituitur per Litiscontestationem quando non Ib. Locus Poenitentiae Ib. M. Mare 120. Marriage Ib. Marriage Clandestine 123. Materna Maternis Ib. Matrimonium 124. Mensis 125. Mensura Taxative Demonstrative Ib. Militia Ib. Miln Ib. Ministers Stipends in a Reddendo Ib. Minor Ib. Minor non tenetur Placitare 126. Reduction upon minority Ib. Decreet against Minors Ib. Mobilia Ib. Mobilium vilior possessio Ib. Modus habilis 127. Molendinum Ib. Molendina aquatica Ib. Molendina Bannaria Ib. Molendina navalia Immobilibus accensentur Ib. Molendina 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ib. Districtus Molendini 128. Quomodo qui sunt in districtu Molendini cogi queant Ib. An qui sunt in Districtu alibi molere possint Ib. An Extrui possit Molendinum quod noceat vicino Ib. An Molendinum possit Extrui sine licentia Principis Ib. Restagnatio Molendini Ib. Vsus Molendinorum Juri Civili ignotus 129. Vbi convenit ut pro Familia molatur quid Juris si aucta sit Ib. If a Mother and her friends may succeed Ib. Mutuum Ib. N. Non-entry 130. Novo damus Ib. Nullitas ex verbis non licebit 131. Clausula ex unnc prout ex tunc Ib. Nundinae Ib. O. Oath of Coronation 132. Qualified Oaths Ib. Correspective Obligements 133. Mutual Obligements in Contracts Ib. If Offices do Escheat by Horning Ib. Omissa male appretiata Ib. Operae 134. Order of Discussing Ib. P. Pactis Privatorum non Derogatur Juri Communi Ib. Parliament Ib. Passing from a Right 135. Patents of Honour Ib. Pecunia Pupillaris Ib. Pensions granted by the King 136. Personalis Actus Ib. Pignora Ib. Plenishing If a Wife be provided to a part of it Ib. Possessor 137. Poinding of the ground Ib. Prerogative Ib. Prescription 139. Prescription against the King 140. Presentation upon Forefaulture 141. Process against Strangers 142. Procuratories of Resignation Ib. Promise to Dispone not in writ Ib. Protections Ib. Provisions in favours of Bairns 143. Provision in Bonds Ib. Provisions in Charters Ib. Provisions in Contracts 144. Provisions in favours of Daughters Ib. Publica Ib. Pupils 145. Q. Quartering Ib. Quorum Ib. R. Ratihabitio Ib. Jus Ratium 146. Jura Realia in Re in Rem Ib. Rebellion Ib. Whether the Rebels Goods ought to be Lyable to Creditors Ib. Recognition 147. Redemption Heretable or Moveable 148. Order of Redemption Ib. Reduction Ib. Reduction Ex capite Fraudis 149. Infeftment after Reduction Ib. Reduction Ex capite Metus Ib. Reduction upon Minority Ib. Reduction Ex capite Lecti 150. Re-entry after Redemption Ib. Regalia Ib. Regality 151. Writs registrate that cannot be found in the Register Ib. Registratio 152. Regum Contractus 154. Relief of Cautioners 155. Relocation Ib. Reluitio seu Retractus Ib. Remissions Ib. Renounciation Ib. Renounciation by Daughters at their Marriage 156. Renunciatio Juri Publico Ib. Res Fiscales res privatae Regis Ib. Re-seafin upon Reduction Ib. Reservation in favours of Relicts 157. Resignation Ib. De Resignationibus 158. An Resignatio in Manibus Domini Superioris alienantem penitus devestiat Ib. An ex Persona Resignatarii ejus vel obitu vel delicto Custodia Haeredis alia emolumenta Domino directo obveniant Ib. An in Feudis quae de Domino Rege tenentur idem Jus sit adeo ut per Resignationem Vasallus devestiatur 159. Si Alienatione facta ex ea Resignatione alia postea fiat ex ea etiam Resignatio in favorem alterius isque primus Investitus fuerit post eum prius acquirens Quaeritur uter Potior 161. An is qui in Dominium directum successit Titulo singulari teneatur Acquirentem in vasallum recipere ex Resignatione in manibus Authoris 164. An Superior nedum Resignatarium ejusque haeredes sed Cessionarios investire teneatur 165. De Resignationibus a Domino directo acceptatis An devestiant Resignantes 166. Retention 171. Retours Ib. Retoured Duty Ib. Return of Lands to the Superior upon a Provision 172. Return of Lands to the King failÈieing of Heirs Male Ib. Reversion Ib. Reversions of Comprysings against appearand Heirs 173. Reversion Personal 174. Legal Reversion competent to Idiots c. 175. Rights made by Dyvours Ib. Fraudulent Rights in prejudice of Creditors 176. Right a non habente potestatem Ib. Rights ad Tractum futuri Temporis Ib. Right in Trust 177. Ripae Ripatica Ib. Quando Dies cedit in Grass Roums when there is Question betwixt Fiars and Liferenters Ib. S. Act Salvo 179. Seasin Ib. Registration of Seasins Ib. Special Services and Precepts of Clare constat Ib. Servitude and Extinguishment thereof Ib. Lords of Session 180. Sheriffs Ib. Ships Ib. Solarium 181. Sponsalia Ib. Statuta Ib. Steelbow and Heirship Ib. Strangers Goods or Debts belonging to Strangers Ib. Subjects living Abroad Ib. Substitutes 183. Substitutio Ib. Substitution in Bonds Ib. Substitution in Legacies 185. Successio in Maternis Ib. Successio in Stirpes 186. De Successione in Feudo amisso quo Jure censenda utrum Haereditatis an Conquestus Ib. Successor Titulo lucrativo 191. Singular Successors 193. Sums heretable and movable Ib. Sums moveable 194. Eldest Superior Ib. Superior mediate Ib. T. Tack Ib. Back-Tack and Prorogations 196. Tack
of Teinds Ib. TailÈies 197. TailÈie altered 201. Teinds 202. Teind of Fish Ib. Proving the Tenor. Ib. Decreets for proving the Tenor. 203. Terce Ib. Territorium 205. Testament Ib. Testament Execute 206. Testament and the Wifes part Ib. Testes 208. Third and Teind Ib. Titles of Honour Ib. Titular 209. Tocher Ib. Quaestiones de Tractatu Suedico Bonis prohibitis Vulgo Counterband 210. Posterity of Traitors 214. Transumpts 215. Trebellianica Ib. Trust Ib. Trustees in Infeftments Ib. A Trustee committing Treason Ib. Tutors 216. Tutor and administrator of Law 217. Tutor Ratione Rei Ib. Tutory Ib. V. Re-entering of Vassals 218. Vectigalia Pedagia Ib. Vinco Vincentem Ib. U. Union Ib. Vniversalia Augmentum recipiunt 219. Quando Vniversitas delinquit Ib. W Wadsets Ib. Wadset Heretable or Moveable 220. Wadset proper Ib. Ward 221. Ward Lands 222. Taxt Ward 223. Warrandice Ib. Infeftment of Warrandice 224. Waste Ib. Witnesses Remitted Ib. Witnesses in case of Treason Ib. Women Witnesses Ib. Obligements to employ Sums of Money for Provision of Wives 225. A Womans Jointure Ib. Woods 226. Wrack Ib. Z. The case of the Admirality of Orknay and Zetland Represented in behalf of the King in Answer to the Duke of Lennox's Claime thereto Ib. ERRATA in the Doubts c. PAge 2. lin 16 after posterior add first p. 10. l. 21. given read got p. 16. l. penult dele or p. 19. l. ult place the comma after only p. 23. l. 8. right r. burden p. 25. l. 3. was r. is Ibid. dele and. p. 26. l. 13. after Disponner add a me de me p. 61. l. 22. r. in comperto p. 82. l. 11. of Kin r. Heir of TailÈie p. 83. l. 12. after unles add TailÈied p. 84 l. penult Males ls 1. Males are p. 99. l. 19. after use add of p. 102. l. 29. 1. Confirmatione p. 114. l. 7. aditur r. auditur ibid. l. 41. r. pertinebat p. 122. l. 20. nor r. but. p. 130. l. 7 Immediate r. mediate p. 133. l. 10. against the Price r. against the Buyer p. 170. l. 45. r. oblectari p. 184. l. 11. null r. Moveable p. 195. l. â—9 second r. first p 198. l. 8. dele male p. 218. l. 14. after but add If SOME Doubts and Questions IN THE LAW Especially of SCOTLAND A. Adjudications BY the Act of Parliament upon Comprisings or Adjudications for a Sum of Money The Superior may be forced to enter or to pay the Debt Quaeritur If he may be urged to enter upon Adjudications proceeding upon Dispositions in prejudice of the Superior by obtruding a Vassal seing in that case he has not Retractum Feudalem A Vassal having made a Disposition or granted a Bond for Disponing his Lands will the Superiour be obliged to Infeft upon Adjudication Ratio dubitandi That the Superior by the Act of Parliament is obliged only to Infeft Comprysers or Adjudgers being Lawful Creditors and he has Retractum Feudalem paying the Creditor And the Debitor has Retractum Legalem which is not in the case of Dispositions If Lands should be Adjudged from the Appearand Heir of Ward-lands Whether will the Appearand Heirs Marriage be due and affect the saids Lands in prejudice of the Adjudgers Answer Albeit that it appears that Marriage should be of the nature of Ward which is not Real as to singular Successors the Superior having only Right to the Duties which he may uplift And ex stilo of a novo damus Marriage is not reckoned amongst real Incumbrances Yet in the case of Thornidikes the Lords has found Marriage Real Whether as Reversions that are comprysed need no Intimation In Respect of the Series of Solemnities that is in Comprysings By which they become so publick that they are presumed to be known to the Person Lyable If there be not Eadem Ratio in Adjudications being now of the nature of ordinary Decreets If at least there be a difference betwixt Bonds and Reversions So that as to Bonds when there is a Competition of Two Comprysers The Posterior intimating should be preferred If Superiors who are Subjects only will be obliged to receive Adjudgers to be their Vassals having Adjudged not for Debt but upon Dispositions And if the King be in another Condition If upon a Disposition The Receiver should obtain Sentence for Damnage and Interest against the Disponer his Heir for Implement If in that case the Adjudger ought to be received Ratio Dubitandi That Primordium inspiciendum est and upon the matter there was not a Debt ab initio If a Reduction Ex capite Minoritatis not being intented at the instance of the Minor Jus Actionis may be Adjudged An Heretable Bond being Adjudged Though there be no necessity of Intimation because Adjudications and Comprysings are publick Rights upon Record Quaeritur If the Debitor paying bona fide to the person to whom he granted the Bond will be in Tuto the said Adjudication not being intimate Answer It is thought that he should be in Tuto seing Intimations are required for Two Effects Viz. Either to compleat the Right be Assignation or to certiorate the Debitor that he make payment to no other person And though an Adjudication be sufficient as to the said first Effect an Intimation is necessary as to the other unless the Debitor be called in the Adjudication Advocation by the Justices IF the Justices may Advocate to themselves Criminal Processes depending before Lords of Regality or other Judges It is thought The Lords of Justiciary cannot Advocat The taking or Advocating Processes from a Competent Judicatory upon Reasons of Advocation being a Power and Prerogative belonging to his Majestie 's Supreme Judicatories of Session and Council And Reasons of Advocation either upon Suspicion or some other Reason meerly Civil or of State belong not to the Cognisance of the Justices but to the Lords of Session and Council If they were to Advocate the Reasons of Advocation behooved to be first discust and what could be the method since all Processes before the Justices are so peremptory That Caution must be found both by the Pursuer and Defender Alimenta COnstituto semel Alimento quo nihil in jure magis favorabile aut magis personale de eo nec Alienatio nec Transactio rité celebratur datur enim ut persona exhibeatur utcunque vitam toleret Mirum igitur Advocatos primi ordinis tanto conatu boatu summa ope annisos ut Judicibus persuaderent aut imponerent asserentes Alimentum uxori constitutum juri Mariti obnoxium esse vel saltem creditoribus Mariti esse integrum illud afficere Quod enim ossibus haeret nec a persona cui competit avelli aut alienari potest illud nec juris Ministerio aut fictione transfertur Quum igitur Alimentum adeo personale sit ut superius diximus ut alienari nequit ita ut ab uxore nubendo in Maritum non possit transferri tacitâ quasi alienatione Sublato autem
Bairns 18000 Merks after his Decease Quaeritur The Heir being served will there be a Confusion as to his Debt and Provision 2do If he may have Action against the Executors for it as Heir and Creditor 3tio If he succeed to his Father in Land-Estate though the Money was not employed will not the Obligement be satisfied pro tanto 4to Will the Bairns come in pari passu or must the Heir be satisfied in the first place out of the Moveable Estate Coals A Woman being Infeft in Lands in Liferent cum Carbonibus Carbonariis Quaeritur If she may win Coal where there was none before in order to Selling Ratio Dubitandi That usus fructus est jus utendi salva rei substantia and the Coal usu consumitur And being digged non renascitur It is thought therefore that where there was no Coal before The Liferenter cannot break Ground in order to Selling. Quaeritur If the Liferenters at least may Win Coal where there was no going Coal before in order to their own use and for their Fire Refounding any Damnage that may be by breaking of the Ground Cogitandum Where there is a Coal going Quaeritur If the Liferenter may continue to Work and Sell Answer It is thought for the Reason foresaid the Liferenter cannot Sell but may claim by the said Clause to have as much Coal as may serve for the Liferenters use only unless it be expresly provided that the Liferenter may Win and Sell as the Fiar might have done If the Liferent be not constitute so clearly in the Terms foresaid and it be only provided that the Liferenter shall Liferent the going Coal Quaeritur If the Liferenter may have the same benefite of the Coal as the Fiar might have had both for the Liferenters use and for Selling providing that the Liferenter use the same as bonus Vir and in the same manner as was in use formerly and do not any thing of purpose to the prejudice of the Fiar putting in too many Colliers or otherwise As there is quasi Vsus-fructus of Money if it ought to be so of Coal and what is Win should be valued and the price should be valued to the Liferenter in Liferent and in Fee to the Heretor To consider if this case has occurred elsewhere in the case of Sylvae caeduae Collation BY Contract of Marrriage the Husband is obliged to provide the Heirs of the Marriage therein specified But there is a Clause subjoined That if there be only Daughters and they be moe than one The Eldest only should succeed and the other Daughters should resign their parts in her favours reserving to the Father to provide them which he did not There being beside some Heretable Estate Quaeritur If the Eldest will not only have the Land but her share of the other Estate as Heir Portioner Ratio Dubitandi That Law and Nature favours and intends Equality betwixt Children Especially where the interest and preservation of Families is not to be considered and upon that account there is no Prerogative of Primogeniture and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is only competent Liberis Masculis Daughters being finis caput familiae And by the Contract the Eldest Daughter is not obliged to Marry one of the Name or who should take the Name 2do The Heir cannot be Executor unless he confer or upon the foresaid consideration and there appears to be Eadem Ratio in this case Whitelaw If an Heir to the Effect he may share in the Executry offering to confer the Moveable Heirship ought not also to confer Lands and other Heretable Estate For the Executory may be very considerable and it were hard that upon Collation of the Moveable Heirship possibly of small value he should both retain the Heretable Estate how great soever and share in the Executory though very great If there be Three Daughters and the Eldest at her Marriage get a part of the Lands Quaeritur If she will share as Heir Portioner with the other Sisters unless she confer as in England Commission not to Expire morte Mandatoris IF a Commission may be granted by a Person to Freinds for Selling Lands and to endure irrevocable not only during his own Lifetime but after his Decease to bind his Heirs untill it be Execute Ratio Dubitandi Mandatum expirat morte And on the other part there may be a necessity to Sell and his Heirs may be Minors Or upon some other considerations it may be fit that there should be such a Power given And as he may bind himself by granting such a Commission he may bind his Heirs being eaedem Personae Commissioners to the Parliament QVaeritur If there be any case wherein Commissioners to the Parliament ought to consult the Shires whom they Represent Answer It is thought that albeit by their Election they have Commission cum Libera potestate It is to be understood that they may superstruere But cannot evert or alter Fundamentals and the constitution of the Government either of Church or State And if any thing of that nature be intended it ought not to be done by Representatives unless they have special Authority to that purpose Commonties THe Servitude of Pasture being either in common Muires as Gladsmuire or such like Or in Commonties belonging to Heretors and Superiors and their Vassals by Rights from them Or in Lands belonging to others and not to their Superiors Quaeritur If an Infeftment cum communi Pastura will be a Ground of Prescription in all the foresaid cases unless it be special as to the Subject and the Lands to be Pastured upon Answer As to common Muires if the Lands adjoining be Disponed cum communi Pastura by the King it is to be presumed that before they be Disponed the Kings Tennents of the Lands Disponed were in use to Pasture in the said Muire And therefore the Clause cum communi Pastura is to be understood with the Pasture formerly belonging to the King And in that case possession though not for the space of Fourty Years by vertue of that Right is sufficient 2do There is the same reason as to Lands Disponed by Superiours having a Commonty within their own Property v. g. in Dirletoun unless there be some speciality v. g. as in David Forrest his Precept of Clare constat there is Nine Acres given without mention of Pasture in the Commonty of Dirletoun and there is a Tenement and three Acres and an half cum communi Pastura in Communia de Dirletoun So that the Right being granted unico contextu the Right of the said Acre cum communi Pastura Excludes the same as to the other Nine Acres 3tio As to a Commonty within the Property of other Superiours the Clause cum communi Pastura in the Tenendas will not be a ground of Prescription unless there be a Right or Constitution by the Heretor within whose Property the said Commonty is Common Appendant QVaritur There being a Servitude
of Pasturage or Commonty due to me out of Neighbouring Lands which the English call Common Appendant will the Servitude extinguish if I purchase the saids Lands seing res sua nemini servit Answer It is thought that it is Suspended but not extinct So that if the Purchaser sell the Lands affected with the Servitude it will revive unless it be provided otherwise And Servitudes of that nature are Real and pertinents Praediorum non Personarum Communio COmmunis Possessio quâ vel ad pasculandum vel ad alios fructus participandos vicini utuntur non caret Litigiis Divitibus proportionem Geometricam pauperibus Arithmeticam affectantibus Sed possessio Geometrica servari debet Praedialis ita ut qui majores habet possessiones magis utatur pascuis qui minores minus Jus Fluviat p. 561. n. 25. Compensation IF there may be Compensation on a Bond prescribed For that reason Viz. That quae sunt temporalia ad agendum they are perpetua ad excipiendum And the ground of Prescription as to Personal Actions being Negligentia petentis cannot be pretended in this case the Defender being satisfied in his own hands When in Processes for Sums of Money Compensation is proponed and the Pursuer Replyes upon Recompensation and the Defender again Duplyes upon Recompensation Quaeritur what course shall be taken by the Judge upon their several Recompensations Answer If it appear that the Pursuer or Charger is addebted in as much to the Defender as the Defender to him all the Compensations being considered the Defender ought to be assoiled and the Parties hinc inde should be decerned to give up and discharge the Grounds of the Compensation And if all the Compensations being sustained the Defender be found debitor to the Pursuer a Decreet should be given for what is due And if the Pursuer be found debitor to the Defender the Defender ought to be assoiled and the Pursuer decerned to pay what he is owing An Assigney to a Debt for an Onerous Cause having pursued for the same Quaeritur If it be alledged that the time of the Assignation the Cedent was the Defenders debitor and that he hath present Action for liquidating his Debt Whether ought Compensation to be sustained upon the said Ground and a time granted to liquidate It is thought That the Cedent not being Inhibite nor any Diligence done against him the Sum assigned was in Commercio and might be disposed of by him there being then no ground of Compensation which is de liquido in liquidum and otherwise non tollit obligationem vide Retention in Litera R. Composition for Entry IF the Superiority be disponed or comprised after Resignation Quaeritur Whether what is payable for receiving of the Vassal should belong to the former Superior Or to his Successor by whom he is to be received being pretium of his Entry Compriser IF after expiring of a Comprising the Compriser may pursue for the Evidents being incidents to the Right Comprising IF a Bond for an Onerous Cause being granted by a Person not Inhibited and publick Infeftment thereupon be preferable to a Compriser who had comprised before but was Infeft after the Bond If a Compriser of ward-Ward-Lands die before the expiring of the Legal Will the Marriage of his Heir fall If it fall Will the Debitor if he redeem be lyable to refound the Avail Comprisings of Heretable Bonds though they be upon the matter Legal Assignations so that the first Compriser will be preferred to the second intimating in respect of the previous publick Solemnity in deduceing Comprisings Yet Intimation is necessar to put the Debitors in the Bonds comprised in mala fide If there be a necessity of a Declarator of expiring a Legal as there is of a Conventional Seing in many Cases there may be much Equity for purging the expiring as if the Sum be all paid but a very little part and the Lands exceed much the Debt If the Compriser come to be Debitor in a Sum equivalent Will the Compriseing expire The first Compriseing being reduced at the instance of a posterior Compriser ex capite Inhibitionis Will the first Compriser have Right to the Legal of the second Though the Debitor be Inhibited May he not assign the Legal If Compriseing whereupon Infeftment is not to follow and which formerly needed not to be allowed ought to be Recorded conform to the Act of Parliament 1661. Act. There being a Compriseing against a Principal and two Cautioners of their respective Lands and the Right of the said Compriseing being acquired by a Person who had bought one of the Cautioners Lands If that Person should dispone the Right of the other Lands with the Compriseing Sums and Grounds thereof as to the said other Lands only before the expireing of the Legal Quaeritur 1. If he hath not reserved expresly the Compriseing and Sums thereof as to his own Lands but has only disponed in the Terms foresaid Will the Compriseing extinguish as to his own Lands seing it could not subsist without the Grounds and these are disponed Answer It is thought It will not extinguish in respect the Compriseing is not simply disponed but only as to the other Lands and the same not being disponed as to his own Lands eo ipso it is retained together with the Grounds and it was Actum that the Disponer by acquiring the Compriseing should be thereby secured as to his own Lands And having disponed the same as to the said other Lands Law presumeth that he has retained it as to his own Lands in the first place and that it should be effectual as to the other Lands in the second place And Acta agentium are to be understood to operate according to their Intention Quaeritur 2do If the Compriser of that Legal should Redeem who should have right to the Sums whether the Disponer or these to whom he has disponed as to the other Lands at least to a part of the same Answer If the Disponers Interest as to the Security of his Lands amounts to or exceeds the Sums he will have Right thereto entirely seing he is to be secured in the first place If a Comâ—riser Infeft in Lands doth consent only to a Right made by the Debitor of a part of the Lands comprised will that Consent secure the Buyer against the singular Successors of the Compriser having Right from him by Compriseing or Disposition and Infeftment thereupon Seing they may pretend that a Consent doth not denude habili modo A Creditor comprised the Principal Debitors Lands and some time thereafter the Cautioners Estate and after the Compriseing against the Principal was expired But yet the Compriseing against the Cautioners was running he disposed of some of the Principals Lands Quaeritur If the Cautioner may plead that the Compriseing against him is extinct In swa far as the Creditor has an irredeemable Right to the Principal 's Estate Exceeding his Debt and is satisfied at least may be satisfied with
consent of Persons is required ad integrandam Personam as in the case of Pupils and Minors it ought to be given before their decease in ipso acta But where the consent and confirmation of Persons is ad integrandum constituendum Jus which is constitute and perfected per gradus partes The consent and confirmation may be at any time re integrâ and where there is no medium impedimentum as Exempli Causà If there be a Compriseing against the Disponer the Disposition cannot be confirmed Item sometimes there must be Confirmation neither ad integrandam Personam nor Constitutionem Juris but for confirming the Right constitute as the Popes Confirmation in the Right of Church-Lands or the Patron 's Confirmation which are necessary in regard of their Interests Et ne quid Detrimenti Ecclesia capiat which may be at any time If a Right be confirmed after the Death of the Receiver of the Right and after the Disponers Heir is Infeft upon the Retour Quaeritur If the Heir of the Person who receives the Right may be served Heir to his Predecessor as having dyed last vest and seased notwithstanding that the Right was null the time of his decease and that there is medium impedimentum in the Retour by the Infeftment of the Disponers Heir Answer It is thought he may be served Heir and the said Infeftment is not an impediment the Heirs of the Disponer being eadem persona and in effect his Author And the said Infeftment is in effect to the use and behoof of the Receiver of the Right and his Heirs And the Heir of the Disponer is in no other case than the Disponer himself whose Infeftment is to the use of the Buyer until his Right be confirmed and then ceases If the King should confirm the Charter à me granted by Castlemaines to Cesnock Quaeritur If in that case the Vassals will be in any hazard Answer It is thought not seing it cannot be said that they were at any time Vassals to Cesnock And though fictione Juris the Confirmation be drawn back as if Cesnock had been infeft immediatly after his Right yet it cannot be drawn back where there is medium impedimentum the Vassals having acquired a Right before and having never been Cesnock's Vassals but only to Castlemains before the Forefeiture If an Heretor of Land dispone his Land to be holden of the Superior and the Superior confirm the Disposition with all that shall follow upon it But before Seasin be taken upon the Precept the Disponer dies Quaeritur What way the Purchaser shall be Infeft Answer The Disponers Heir is to be Infeft and to grant a Precept relating to the former Disposition and Confirmation Or if he will not or think not fit to be Heir the Lands may be adjudged from him as charged to enter Heir Quaeritur In the case foresaid if the Superior after he has confirmed the Disposition die before Seasin thereupon Whether a singular Successor in the Right of Superiority may question the said Infeftment Ratio Dubitandi That there is medium impedimentum viz. The Superior is changed and the former Vassal being his Vassal the time of his Right thereafter another Person cannot be his Vassal without his consent Et è contra the former Superior having done all that he could do to perfect the said Right and nothing resting to compleat it but the deed of the Disponer or his Heir by giving Infeftment the former Superior was denuded as to his Interest So that his Successor cannot question the said Right being perfected by the Infeftment If at least the Successor of the Superiority may be urged to renew the Confirmation Ratio Dubitandi The singular Successor in the Superiority may be urged to grant Infeftment upon Resignation in the hands of his Predecessor Cogitandum But it appears there is a difference seing by Resignation the Property is in the Superiors hands whereas by the Confirmation it is not and the Vassal is not denuded before Infeftment upon the Charter confirmed whereas he is denuded by Resignation and by Comprising which in Law is equivalent to a Resignation accepted seing the Superior cannot refuse to give Infeftment upon Compriseings If the Disponer be denuded of the Superiority what course is to be taken against his singular Successor for renewing the Procuratory Answer Seing in the case in question the Buyer was infeft according to the Tenor of the said Disposition It is to be considered if the King may notwithstanding confirm the said base Right Confiscation IF a Person being at the Horn dwell within a Regality and have Goods or Debts within another Regality Will these also belong to the Lord of Regality where he dwelleth upon that pretence that sequuntur personam Confusione tollitur obligatio BY Contract of Marriage the Husband is obliged to employ 30000 merks to himself and his Wife in Conjunctfie and the Heirs of the Marriage and has obliged also his Heirs and Executors to employ at his decease 15000 merks to his Bairns besides the Heir Quaeritur If the Heretable Estate be short of 30000 merks May the Heir pursue the Executor ad Supplementum Ratio Dubitandi he is served Heir and eadem Persona with the Defunct confusione tollitur obligatio It is thought he may and that Maxim militateth when the Heir succeedeth in universum Jus Patrimonium But in this case the Heir having right only to the immoveable Estate there is no confusion of that Obligement which is prestable out of the Executory to which the Heir has no right as in the case of moveable Debts due by the Defunct to his Heir either of Line or TailÈie there is is no confusion for the reason foresaid Item Quaeritur If there be not so much in the Executory as may satisfy the Provision foresaid in favours of the Bairns if they may have recourse against the Heir for their Provisions Ratio Dubitandi The Heir by the Contract was to be provided presently and the Bairns at or after the Father's decease and by and attour the Sum provided to the Heir so that the Heir should have his Provision as Praecipuum and before the Bairns Answer It is thought That the Heir being provided under the name of Heir which is Nomen Repraesentationis as he is lyable to other Creditors so he is lyable to the Bairns being provided under the notion of Bairns who do not represent If the said Provisions had been in a second Contract of Marriage the Son of the first Marriage being Heir of Line would be lyable to the Son of the second Marriage though served Heir and there would be no confusion for the Reason foresaid Conjunct-Fiar QVaeritur If a Lady Conjunct-Fiar or Liferenter of a Barony may receive Vassals singular Successors upon Resignation or Confirmation or give Novo damus Conquest A Father being obliged to provide to the Heirs of the first Marriage the Conquest and having acquired a Room during the first
Marriage and disponed the same to the Son of the third Marriage Quaeritur If the Heir of the first Marriage may reduce that Right as given without an onerous Cause in his prejudice being a Creditor by that Clause of his Mothers Contract of Marriage Ratio Dubitandû It is pretended not to be free Conquest the Father having contracted Debt thereafter above the Sum of that Room Whereunto it was Answered That the said Room was Conquest the price being then paid and the Debt contracted thereafter A Merchant being obliged to provide the Conquest during the Marriage to himself and Wife and the Bairns of the Marriage Quaeritur 1. Whether Conquest being Vniversitas will fall under the Executory of the Bairns though the subject and what will fall under the Conquest be moveable 2do The Conquest being provided so that the Right should be taken to the Husband and Wife and Bairns of the Marriage whilk FailÈieing the half to the Husbands Heirs and the half to the Wifes Heirs Whether the Husband be Fiar and the Bairns only Heirs of provision though the subject be Moveable Though the Husband be Fiar if he can Dispone the Conquest without an Onerous Cause or provide the same to other Heirs in prejudice of Bairns being Creditors by such Provisions The Husband being obliged in these terms to provide the Conquest viz. Lands Heretages and Annualrents and other things And to take the Rights in manner foresaid Quaeritur If the General other things be comprehensive of Moveables there being no mention of Sums of Money or Moveables And it seems that Conquest is to be understood properly of Heretable Interests of which only and not of Moveables Rights are taken And other things may be understood of things Homogeneous and of the same nature that the things expressed in particular are of Viz. Heretable as Reversions Tacks c. If at least Bonds bearing Annualrent though Moveable will fall under the conquest Seing Rights are in use to be taken thereof And by the Law they belonged to Heirs before the statute This and the Four preceeding Questions are in the case of Andrew Bruce and his Conquest during the first Marriage The ordinary Clause of conquest in favours of Wives being of Lands Heretages Annualrents Quaeritur If Bonds being Heretable because Executors are Excluded will fall under the same Answer It is thought not Because the Subject is only Lands Heretages and Annualrents whereupon there is or may be Infeftment And Heretages comprehends only Lands Teinds and such Rights as are real by Infeftment or otherwise or whereupon Infeftment may follow Consensus USV receptum est ut in terrarum aut nominum jurium alienationibus Cessionibus praeter contrahentes alii interveniant pro interesse consensum accomodent subscribant contractibus instrumentis Sed quisnam Consensûs effectus esse debeat ambigitur quibusdam videtur consentientes contractus quibus consenserant haud reprobare nedum ut rescindantur agere posse juxta tritam juris regulam quod approbo non reprobo Alii opinantur cum nihil juris disponant ant tribuant consensum haud extendi ultra id quod actum aut cogitatum viz. Vt si quod jus eo tempore quo consensum adhibuerant suberat aut juris umbra ejus ratione aut praetextu Litem aut quaestionem intentare nequeant Salvâ tamen libertate commercii jura si quae sunt penes alios quam contrahentes potiora acquirendi aut in ea succedendi Iis ex intervallo post facto adeptis consensum haud obesse Cogitandum an ea sit commoda distinctio consentientes si in alia jura postea succedant iis uti posse quae enim consentientibus tunc temporis haud competebant sed postea nec opinantibus forte jus detulit ea antequam penes eos forent consensu ase abdicasse nec verisimile nec credere par est Qui autem juri in alium transferendo consensit si ejusdem rei jus melius penes alium esse compererit sponte operâ suâ acquirat ex eo adversus eos qui ipso consentiente jus alterum quaesierant agere haud audiendus Nec enim juri nec bonis moribus consentaneum est quod approbavit aliquid moliri aut quaerere quo illud posset reprobare aut rescindere Broomhall contra Lady Darsie Consensus Domini COnsensus assumit naturam actus super quo interponitur Sicut stipulatio quae est stricti juris interposita contractui bonae fidaei Bes Thes liter L. p. 552. Dominus consentiendo non praesumitur juri suo velle praejudicare sed solum obstaculum quod scilicet jus vasalli sine Domini Consensu alienari non poterat removisse Et remissio juris sui non praesumitur nisi verbis apertis de eâ constet Ibidem P. sequen Regula quod Domini consensus juri ipsius nihil officiat procedit tantum in illis juribus quae Domino consentienti competentia separatam habent rationem a negotio cui consensus accedit non autem in his quae ad robur firmitatem actus pertinent Idem p. 554. Consent QVaeritur If an Appearand Heir consent to a Disposition made in Lecto after the Decease of the Granter may another Heir quarrel the Deed upon pretence that the Consenter was not served Heir at any time Ratio Dubitandi The Consent of the Appearand Heir the time of the granting the Right doth so validate the Right that all Heirs are precluded from questioning it And there appears to be the same reason when the Consent is supervenient If the Consent will import Behaving A Person being Infeft in an Annualrent to be holden of the Disponer and in possession by payment of the Annualrent Consents to a Disposition of the Lands Quaeritur If that Consent will prejudge a singular Successor The Disposition being neither Registrate in the Register of Reversions nor the Seasin upon the Disposition relating to the Consent If the Consent of a Person having Right by Disposition whereupon Resignation has followed will prejudge a singular Successor In what cases Consent to a Right will prejudge singular Successors Answer It is thought that where there is no Infeftment and the Consenters Right may be transmitted by Assignation or Discharged such a Consent may prejudge singular Successors And will amount to an Assignation or Discharge If a Consent of a Party having only Right to a Reversion will prejudge a singular Successor unless it were Registrate Anent Consistories Whereby the Vsefulness and Necessity of these Courts is evinced and Doubts and Prejudices against them are Cleared THE Question whether a Judicatory be useful and necessary and therefore to be Instituted If it be not and continued if it be already erected or unuseful and therefore to be suppressed Cannot be defined well à priori but from the nature of the Subject and Causes which are agitate in the Judicatory And if the Subject be necessary and favourable
removed and a solid course taken for obviating the like Abuses thereafter that places be not venal but proposed and disposed as rewards of Vertue to able and deserving Men 3tio The Exorbitancy of Fees and Quotts may be Regulated by taking course anent the presentation to settled places that honest and ingenious Men be presented that a Competency of settled and constant Fees be alotted to encourage honest and able Men to pretend to these places and to enable themselves for them and that they may live creditably and honestly in them and Quotts may be abridged and it may be provided that small Testaments may be free of Quot And the Quots of great Testaments may be limited not to exceed a certain Sum which the Estates shall think reasonable to be the highest Quot The Quot Silver which shall be thought fit to be taken may be employed the Commissaries being satisfied of their Fees to pious uses Consolidation A Person having Right by Assignation to a comprysing of Lands holden of himself whether eo ipso that he has the foresaid Right will the Property consolidate with the Superiority Seing a Comprysing is equivalent to a Disposition and Resignation thereupon And the Superior having Right by an Assignation to a Disposition whereupon there is Resignation and to the said Resignation It seems that in that case there is Consolidation In respect the Superior upon such an Assignation in favours of a Stranger will be obliged to Infeft him And because he cannot Infeft himself the Law doth introduce Consolidation Ratio Dubitandi is That Consolidation is upon the matter a Seasin of the Property And a Seasin being facti cannot be without some deed of the Person in whose favours the Consolidation is to be made Declaring that he accepts a Right to the effect foresaid If it be not fit in such cases that the Superior should before a Notar and Witnesses Declare that seing he has both a Right to the Property and Superiority in his Person It is his will and intention that the Property should be consolidate with the Superiority And that an Instrument upon his Declaration foresaid should be equivalent as if the Compryser had been Infeft and had resigned ad Remanentiam And if such an Instrument should not be Registrate as an Instrument of Resignation ad Remanentiam When a Person Infeft in the Property of Lands acquires and is Infeft in the Superiority Quaeritur If eo ipso there be a Consolidation of both Rights Item if the Superior succeed as Heir to the Right of the Property Quaeritur If in that case there be a Consolidation so that Dominium directum trahit ad se utile Seing the Superior could not Infeft himself and by his purchasing of the Property he enters to the Right thereof and so the Property is consolidate fictione juris in the same manner as if he had been Infeft If vice versâ The Proprietar acquire the Superiority If eo casu there be a Consolidation of both Rights Answer It is thought not And that Dominium utile cannot draw to it directum without Infeftment by the Superior of the Dominium directum If a Person being Infeft by his Father upon a Right granted to him and his Heirs whatsomever to be holden of the Disponer be thereafter Infeft as Heir to his Father in the Superiority of the said Lands which belonged to his Father and his Heirs Male Quaeritur Whether there will be a Confusion and Consolidation of the Property and Superiority It is Answered During his Lifetime there will be a kind of Consolidation seeing he cannot be Superiour to himself But it will cease by his Death so that the Superiority will belong to his Heirs Male and the Property to his Heirs whatsomever If he intends that there should be a Consolidation what course is to be taken to that purpose Answer If as in the case foresaid he was Infeft first in the Property and then in the Superiority he must dispone the Property to a Confident And the Confident being Infeft must resign ad Remanentiam to the effect the Property may be consolidate with the Superiority to him and his Heirs Male and their Successors If a Superior should succeed in the right of the Property Quaeritur If there be a confusion of both Rights in his Person Answer It is thought though they may appear to be a Consolidation dureing his Lifetime they are nevertheless distinct Seing the right of the Superiority may be to Heirs Male and the Property to Heirs whatsomever And the said Heirs may succeed Respectivè If the said Superiour being Infeft in the Right of the Superiority succeed thereafter in the Right of the Property what way shall he be Infeft therein seing he cannot Infeft himself Answer It is thought that it is not inconsistent that the Superior may give Precept to give Seasin to an Actorney in his name and for his use If the said Superior intend that the Property should be consolidate with the Superiority what way shall it be done Answer He may direct the said Precept in these Terms for Infefting him And seing he has both Rights in his Person and intends that the Property should be consolidate with the Superiority The Precept may be in these Terms to give Seasin to the effect the Property may be consolidate with the Superiority To be holden both of his Superior in all time coming in the same manner as if they had never been severed If a Precept may not be obtained in subsidium out of the Chancery for Infefting the said Person in the property to be holden of himself seing he cannot Infeft himself Answer It is thought that a course may be taken upon a Bill to the Lords ordaining the Director to the Chancery to direct a Precept upon the reason foresaid Decreets contra Consortes A Decreet of Reduction Ex capite interdictionis being obtained in foro and the Wife being Liferentrix craving to be reponed because Competent and omitted could not be alledged against her being sub potestate Mariti Quaeritur If she prevail may the Husband crave the benefite of her Decreet Ratio Dubitandi Upon pretence that it is found that the Decreet against him was unjust upon the matter And it cannot be just as to her and unjust as to him This Question may occur in many cases As that of two Heirs portioners one being Major and another Minor And after the Decreet against both The Minor being Reponed and prevailing And of a Decreet against a principal having proponed a Defence of payment and having succumbed in probation And thereafter the Cautioner being pursued and upon probation of the same Defence being Assoilied Corporations QVid juris as to Crafts and other Incorporations and as to Bishops and other single Incorporations if in any case they may oblige themselves and their successors Creditors of the Defunct IF the Creditors of the Defunct being Minors will be preferred to the Creditors of the Heir though they do
not Diligence within three Years Persons convict of Capital Crimes A Person being convict of a Capital Crime and the Escheat of his Moveables therethrough falling to the King and he being keeped in prison many Years without a Remission and dying in that condition Quaeritur Whether the Rents of his Lands in the interim not uplifted will belong to the King and his Donator or to the Heir Ratio Dubitandi His Escheat is only of what he had the time of the Sentence after which he became civiliter mortuus and being nullus in Law he had nothing to loss And the King by his Indulgence could not prejudge his Heir unless he had granted him a Remission restoring him against the Sentence Quaeritur quid Juris If after he is convict he should commit Treason whether he might be Forefaulted in prejudice of his Heir Curator A Female Minor being Married Quaeritur If the Office of her Curatory doth expire Curatores ad Lites JVre Saxonico Faeminae sunt in perpetua Tutela sed isti Curatores non habent Administrationem ideo Rationes non tenentur reddere adhibentur enim tantum pro consilio assistentia ad integrandam personam maxime in Judicialibus Ex consilio suo quod fideliter impertiuntur etiamsi non responderit eventus conveniri nequeunt quia nemo ex consilio obligatur An idem dicendum in Curatoribus ad Lites Thes Bes in litera K. 47. verbo Kriegerischer per. totam pag. 474. sequent D. Damnum cum quis utitur Jure suo DAmnum est conjunctum cum injuria Et non dicitur Damnum quod Evenit cum quis jure suo utitur Si vero quis ita utatur Jure suo ut vicino potius noceat quam sibi prosit illicitum est prohiberi potest Quia magis Jure suo abuti quam uti videtur Si in meo aliquid faciam ad aemulationem injuriam alterius hoc est non in meam utilitatem sed animo nocendi alteri de Dolo Teneor Secus si injuriâ faciam non animo nocendi vicino sed ut mihi prosit Si enim in meo praedio puteum aperiam quo aperto venae putei vel fontis vicini mei praecidantur non teneor ex hujusmodi facto etiamsi promisissem de Damno infecto quia jure meo licite feci Textus sunt expressi Leg. 1. § 12. Leg. 21. ff de aqua pluvia arcenda Jus Fluviat p. 67. n. 13. Death-Bed IF a Creditor may on Death-Bed make an Heretable Sum Moveable by a Charge of Horning A Person holding Lands Ward when he was on Death-Bed did resign his Estate in favours of his eldest Son with the Burden of Provisions in favours of his other Children which course was taken of purpose to prevent the falling of the Ward and Marriage his Son being then Minor Quaeritur If his Son may question these Provisions as being in Lecto upon pretence that though on Death-Bed he might Dispone in favours of his Heir yet he could not prejudge him Answer It is thought that the said Right being made suo modo and he having accepted the same and bruiked by vertue thereof after Majority he cannot question the said Modus and Qualification A Person having provided his Estate both Heretable and Moveable to his Relict in Liferent and to his Daughter in Fee and FailÈieing of her by Decease to be divided betwixt his Relict and his Brother being his next Heir after his Daughter and her Heirs And the Brother having accepted of a share of the Moveable Estate after the Decease of the Daughter Quaeritur If he might question the said Right as to the Heretable Estate as being made on Death-Bed Ratio Dubitandi Vtile per inutile non vitiatur and the Defunct might on Death-Bed dispose on his Moveables And the accepting of the Right as to these does not hinder the Heir to question the same as to the Heretage Whereof he had no power then to dispose A Husband having Disponed Lands by way of Gift to his Wife and having thereafter revocked the said Gift tacite by a Disposition made on Death-Bed in favours of another person Quaeritur If the Heir may question the said Disposition upon Death-Bed Ratio Dubitandi The Heir is not prejudged in respect the Lands would not have belonged to him but to the Wife And the Revocation is qualified and only in favours of the Person to whom it is made on Death-Bed and to no other effect Debitor and Creditor IF for a Sum of Money Land be Wodsett so that the granter of the Wadset is not Debitor There being no Clause of Requisition or Obligement for repayment Quaeritur If there be only a Reversion Whether will the granter of the Wadset have the benefite of the Act Debitor and Creditor so that the haver of the Wadset may be restricted to the Annualrent of the Sum contained in the Reversion Grubet contra Moir After a Comprising was deduced an Infeftment of Annualrent was granted by the Debitor And thereafter another Compriser having comprised who pretended that his Compriseing should be drawn back to the first being within Year and Day and therefore should be preferred to the Right of Annualrent And that the Debitor being denuded by the first Compriseing had only a Reversion and that an Infeftment of Annualrent is not habilis modus to give a right of Reversion and that it was not nor could be cled with Possession The second Compriseing being before the term of payment The Lords brought in the Annualrenter with all the Comprisers as if he had comprised the same day he was infeft Colstoun contra Nicolas a Creditor of Dunglass Gibson Clerk Colstoun's Bond was 16 February 1669 Seasin 24 May 1669 Nicolas Compriseing 1669. If the first Compriseing and Infeftment should be considered as being to the behoof not only of the Adjudger Infeft but of the others by the Act of Parliament in the same manner as if the Infeftment had been so granted expresly by the Superior Quaeritur Quid Juris Ratio Dubitandi That even in that case the Adjudger Infeft is only Vassal so that by him only the Superior has his Casualities Bancrief Nomina Debitorum IF Nomina which are not Res But Entia Rationis have Situm when the Debitor is in Scotland animo remanendi and the Debt is contracted with him as resideing there Ratio Dubitandi They are thought and called a Personal Interest and therefore should sequi Personam Contrà They are Res in Obligatione potentia 2. If the Creditor be forefaulted in France being a French-man they do not forefault to that King Quia subditus amittit only quae sunt civitatis 3. They are lyable in Scotland to extraordinary Taxations 4. The Debitor is quasi servus servi habent situm To consider Quid Juris elsewhere as to Banks montes Pietatis Strangers Debts IF a Stranger contract with a Scots-man abroad that he should pay
Friends should accordingly name two Persons would the Right be valid Ratio Dubitandi 1. Mandatum expirat morte mandantis And if he could not dispone himself on Death-bed much less could he impower another Person to dispone after his Decease 2. Paria sunt indebito tempore fieri in tempus indebitum conferri 3. A Deed cannot be said to be a perfect Deed inter vivos unless it were consummate in substantialibus and the Person Cui is de substantia 4. No Power can be given by a Person who has no Right himself but as Procurator or Commissioner and such Powers do expire with the Granter 5. There can no Right validly be given incertae personae or ex alieno arbitrio in futuro 6. The Defunct could not give Power to the said Friends to dispose of his Personal Estate after his Decease and à pari or majori he could not give such a Power as to his Heretable Estate Mr. John Bayne of Pitcairly Disposition IF a Person get a Right and Disposition omnium Bonorum Whether will he be lyable to the Debt of the Disponer Actio ad Distractum EX Contractu non agitur ad Distractum sed ad implementum Contractus Transactio non aliter annullantur ex defectu Implementi quam si praecesserit monitio ad implendum deinceps culpa implere Debentis Hering de Molend Quaest 11. N. 132. 133. Division of the Duties of Lands betwixt Buyer and Seller BY the ordinary Custom when Lands are sold If it be a Whitsundays Bargain the whole years Duty is assigned If it be a Martimass-Bargain only the half year Quaeritur If they be not assigned Quid Juris as to the said Duties Answer It is thought the Buyer will be in the Case as we have said of a Compryser But the Question will be if the Bargain be made after Martimass and before Candlemass the ordinar Term of Payment of Victual And then it is thought that the Buyer should be in the same case as if the Bargain had been made precisely at Martimass if the price be then payed or in condition to be payed with the Annualrent from Martimass Seing the Disponer is in no worse case than if the Bargain had been made precisely at Martimass Donatio inter Virum Vxorem A Woman being induced to consent to a Right granted by her Husband of her Conjunct Fee Lands and making Faith not to question it Quaeritur If she may so far revock a Donation as to her Husband that she may crave the equivalent Donatio inter Virum Vxorem being ipso jure Null But so that morte confirmatur Quaeritur If a posterior Creditor of the Husbands should Comprise Lands given to the Wife during the Marriage before the Husbands Death will his Death confirm the deed in prejudice of the Creditor The Comprysing being medium impedimentum If at least the Legal will belong to the Wife The Husband not Revocking If the Husband decease without Revocking Quaeritur If the Wife will have Action against the Heir upon that ground that the Debt is pay'd out of her Estate by the Comprysing on the Husbands posterior Bond Lands being Disponed by a Husband to his Wife and thereafter he having Disponed the same to another person in Lecto aegritudinis Quaeritur If his Heir may question the Right in Lecto Ratio Dubitandi It is not made in his prejudice but of his Wife And the Revocation is only in favours of the Receiver of the Disposition A Debitor having contracted Debt after he had made a Right of Land or any other Donation in favours of his Wife Quaeritur If eo ipso he has Revocked Tacité the said Donation Ratio Dubitandi The Donatio inter virum uxorem is Null and morte tantum confirmatur And before it became valid the said impediment interveened And since the Debitor might have Revocked the said Gift and might have satisfied the Creditor that way his Silence and not Revocking is upon the matter fraudulent and in prejudice of the Creditor It is thought That it is to be considered if the Debitor or his Heir have no other Estate out of which the Creditor may be satisfied In that case the Creditor may have recourse against the Lands Disponed to the Wife If in the case foresaid the Wife may have recourse against the Heir for the Lands given to her so evicted Ratio Dubitandi That if the contracting the Debt after such Donations import Revocation it ought to be only in favours of the Creditor and not of the Heir who ought to be in no better case and the Wife's Action against the Heir may be upon that ground That out of the Estate belonging to her unquestionably as to the Heir the Debt whereto the Heir is Lyable is satisfied A Woman having made a Disposition to a third person to the behoof of her Husband and having ratified and made Faith before a Judge Quaeritur If she may question the said Deed as being Donatio inter Virum Vxorem notwithstanding her Oath Answer It is thought she may And that Deeds that in Law are invalid cannot be sustained upon pretence of an Oath which ought not to be Vinculum iniquitatis otherwise eâdem facilitate that a Wife is induced to give she may be induced to Swear and the Law should be Elusory And such Oaths ought to be understood only that they are not compelled and that they shall not question such Deeds upon that head But not in relation to any other Ground whereby they may be questioned As v. g. Minority and that the Wife has Curators not consenting And that the Husband if she has no other is Curator and cannot Authorise her to any Deed in rem suam And the Act of Parliament anent the Oaths of Wives is in favours of Strangers and not of Husbands Donatio mortis Causa THere being a Donation inter virum uxorem Quaeritur The Donator Deceasing and the Donant Surviving and not Revocking whether will the Gift be Valid Ratio Dubitandi Such Donations aequiparantur Legatis being always Revocable And Legatars Deceasing before the Testator their Legacies are void Donatio non acceptata IF a Donation be made but not accepted Quaeritur If a Creditor may Compryse the same and accept Vide Legacy quest 4. Donators upon Recognition and Forefaulture AFter Lands holden of the King had fallen under Recognition they fell also under Forefaulture and after the Decease of the Forefaulted person a Gift of the said Lands was given upon the Recognition and thereafter another Gift was given upon the Forefaulture It not being known by the King or his Officers the time of the first Gift that the person Forefaulted had committed Treason Quaeritur Which of the Donators should be preferred Ratio Dubitandi That Recognition is but a Casuality And after the Vassal was Forefaulted the property was thereby devolved to the King ipso jure And all Casualities seem to be
Donator to a Forefaulture has Action for Exhibition and delivery of the Evidents The Vassal of a Subject having granted a subaltern Right to be holden base and the same not being confirmed by the mediate Superior Quaeritur Whether the Subvassals Right foresaid will fall under the Forefaulture of his immediat Superior being Forefaulted Answer It is thought that it will fall under the Forefaulture in respect that if the person Forefaulted had committed a Crime against his Immediate Superior whereupon the Lands would have recognosced or Forefaulted to him The Subvassal his Property would have fallen under the Forefaulture and there is eadem if not major Ratio in the case of Treason The King being Superior Paramount and the Crime against him being also a Crime against the mediate Superior there being no greater wrong than to be a Traitor to the Superiour Caldwell and Glanderstoun Quaeritur Quid Juris If the mediate Superiour had confirmed the Subvassals Right Quid Juris in the case of Forefalture for Treason And if there be a difference in the case of Forefaulture in Parliament and before the Justices Lands being Comprysed and a signature being past upon the Comprysing but no Infeftment being taken thereupon Quaeritur If the Debitor commit Treason in the interim whether the same will fall under Forefaulture Answer It is thought that it will not seing the Debitor was fully denuded there being no vestige of Right in his person seing he is divested by the Comprysing as if he had resigned and the Superiour had accepted the Resignation Quaeritur Quid Juris If there were only a Comprysing without a Signature And the Question may be more general Viz. If in all cases the Heretor be so denuded that he cannot prejudge the Compryser by any Deed whereupon Recognition or other Forefaulture may follow in favours of the Superiour otherways a Malicious Debitor may of purpose do such a Deed to prejudge his Creditor To consider if there be a difference betwixt a Disposition and Resignation accepted by the Superiour And a Comprysing whereupon nothing has followed Item If the presenting of a Signature on a Comprysing to the Exchequer be equivalent to a Resignation in the Superiours hands and accepting Item Whether a Charge to other Superiours to enter the Compryser be equivalent to a Resignation If after a Person is Forefaulted an Estate should fall to him as appearand Heir to any person he being yet on Life whether would the same pertain to the King or to the next Heir as if he were Deceased Seing he is nullus being Forefaulted and is not in a Capacity to be Appearand Heir If a Forfaulted person have Children that are ante nati Whether or not will they be prejudged by their Fathers Forfaulture as to any Capacity or Estate belonging to him Whether will they succeed to their Grandfather or any relation upon the Fathers side Seing their Blood is corrupted and they cannot represent their Father being nullus as said is A person having Married an Heretrix and being thereafter Forfaulted Quaeritur If the Blood of the Children be so tainted and corrupted That they cannot succeed to their Mother 2do If the Mother should not dispone in her oun Lifetime Whether her Estate will fall to the King by the incapacity of the Children being her appeirand Heirs An Heretrix being Wife to a forfaulted person If al 's long as he liveth the King will have right to the Mails and Duties Jure Mariti 2do If she may dispose of her Estate without his Consent seing he is nullus in Law And yet is her Husband the Marriage not being dissolved with the Forefaulture A Father having Disponed his Estate to his Son with Reversion and power either to Redeem or Dispone Quaeritur If the personal faculty may notwithstanding be comprysed during the Fathers Life and may be used even after the Death of the Father There is the same Question as to Forefaulture A Woman being Heretrix of Lands in Scotland and the same being TailÈied to the Heirs of her Body whilk FailÈieing to certain other Heirs with the ordinary Clauses irritant that she and they should not have power to prejudge the TailÈie Quaeritur If her Husband being Forefaulted the Blood be so corrupted that her Children cannot succeed and if their Interest of Succession will fall to the King If a Tack set for an Onerous Cause and for payment of Debt will prejudge the Donator to the Forefaulture The Creditor having an Action of Reduction competent to him for Reduceing an Infeftment as being in defraud of him if thereafter the Debitor should be Forefaulted and the Creditor reduce the said Right what way shall he be Infeft seing he cannot Compryse or Adjudge the Debitor being Forefaulted There being a Minute of Contract anent the selling of Lands and the Buyer being thereafter Forefaulted Quaeritur If the King or his Donators will have Right to the said Minute in the same manner as the Buyer or if the Seller can raise a Declarator to be free of the Minute Seing albeit where there is a clear Right and Interest belonging to a person Forefaulted the same will pertain to the King yet when a Bargain is only in fieri and there are diverse obligements upon the part of the Forefaulted person the Seller ought not to be in worse case and in place of a Subject have so powerful an Adversary The Earl of Tarras and the Heirs of Walter Riddel The Laird of Cesnock having acquired from Castlemaines the Barony of Castlemaines but not being Infeft but base before the Forefaulture Quaeritur If by his Forfaulture these who had Rights holden of Castlemaines not confirmed by the King will be in any hazard Answer It Is thought not Seing any Right Cesnock had to the saids Lands was not as the Kings Vassal In which case the subaltern Rights would have fallen and Castlemaines remaining the Kings Vassal Cesnock had only the Right of property holden of Castlemaines And as to Castlemaines Right holden of the King Cesnock had only Jus ad rem by the Contract or Disposition so that thereby the King by the Forefaulture may come to Castlemaines Right and force him to denude himself of the same but it cannot be said that the said Estate came in the Kings hand by the Forefaulture of a Vassal Sempronia having Right to certain Lands which are parcels of a Barony Feued to her Authors by the Earles of Argyle who held the same Feu of the Arch-Bishops of St. Andrews who did confirm the subaltern Rights granted by the saids Earles Quaeritur Whether the saids Lands belonging to the said Sempronia do fall under the Forefaulture of the Earl of Argyle notwithstanding the confirmation granted by the Bishops In respect the saids Rights are not confirmed by the King In Answer to the said Querie It is thought that the saids Lands do not fall under the Earles Forefaulture for these Reasons 1mo The Earle of Argyle did Forefault only
what did belong to himself Nam noxa caput sequitur and the saids Lands did not belong to him in Property but only in Superiority And there is a difference betwixt the said case and the case of Lands holden immediatly of the King himself which by the Forefaulture of his Vassal are Forefaulted and does return to the King as he did give them pure and free and without the burden of any other Right granted by the person Forefault but such as the King did consent to and confirmed Whereas in the case in Question The said Earl did not hold the foresaids Lands immediatly of the King but of the Arch-Bishop who stands still His Majesties Vassal And as his own Right is not prejudged by the said Forefaulture so the Right of the sub-Vassal consented to and confirmed by him is not prejudged by the said Forefaulture 2do Lands holden of the Bishop waird or which would fall in his hands upon Recognition or otherways by the deed of the Earl of Argyle being Disponed by the Earl to be holden of himself will not recognosce by the Earles Deed in Disponing the Superiority or otherways if the Bishop had confirmed the Subvassals Right And there is the same reason in the case of Forefaulture in respect by the common Law when Lands do fall and are confiscat they fall to the immediate Superiour And by our custom in the case of Treason the King has that Priviledge that the Lands which are Forefaultare Confiscat and Forefaulted to him because the Crime is committed against him And therefore the Lands holden of other Superiours do Forefault to the King no otherways than they would belong to other Superiours if the Forefaulture did belong to them In which case the confirmation of the Subaltern Rights by the immediate Superiour of the person Forefaulted would save the Subaltern Rights that they could not fall under Forefaulture 3tio By the Law and Custom of the Kingdom it is lawful Subinfeodare and albeit it may be pretended that if the Bishop had not confirmed the Fews granted by the Earl of Argyle they would have fallen by his Forefaulture though lawful ab initio seing res devenit ad aliam causam resoluto Jure dantis resolvitur jus accipientis Yet in the case of confirmation by the Bishop there is a great difference seing the Subaltern Right doth not only depend upon Argyl's Right so that it falleth with it but has another Foundation whereupon it does subsist Viz. The Bishop's own Right and the confirmation granted by the Bishop and specially in this case seing it appears by the confirmation that the same is granted not to gratify the Subvassal and to prevent prejudice to him by the Forefaulture of Argyle if it should fall out but in order to the Bishop's own Interest and Advantage In respect by the confirmation there is reserved to the Bishop beside the Feu-duty payable to Argyle a Feu-duty to himself and his Successors with a Clause irritant if it be not payed And fictione brevis manus the Feuar is in the same case as if the Bishop ab initio by one Charter had Disponed the saids Lands to the Earl of Argyle in Superiority and to the Feuar in property for payment to the Earl of Argyle of the Feu-duty mentioned in Charter and to the Bishop the said other Deuty In which case Argyl's Forefaulture could not prejudge the Feuar of the Right of Property granted by the Bishop himself nor the Bishop of the said Additional Duty 4to By the Acts of Parliament K. Ja. 2d and K. J. 4. anent the setting of Feues and by custom ever since The setting of Fews was so speedful and necessar in order to the policy of the Kingdom That Vassals are not only allowed but invited to set their Lands in Feu which in effect is a general confirmation of all Fews so that the Fewers should not be in hazard either by the Waird or Non-entry or by any Deed or delict of their Superiour but should be lyable only to pay their Feu-duties to these who should have Right upon occasion of the same and the said Barony being of a large and vast bounds albeit it was Fewed to the Earl of Argyle yet for the labouring and bringing it in it was necessary to set it in parcells to other Fewers holden of him and the Fews in Question are granted before the Year 1606. A Subvassal holding of a person Forefaulted and his Right not being confirmed either by the Forefaulted persons immediat Superiour or by the King Quaeritur If his Right will fall under the Forefaulture Ratio Dubitandi Licebat infeodare noxa caput sequitur and yet is thought it will fall under the Forefaulture Because resoluto jure dantis c. And though it be lawful to grant Sub-altern Rights yet it is alwayes cum sua causa A Superiour being Forfaulted and his Vassals Right not being confirmed and so falling Quaeritur If His Majesty should confirm the Vassals Right if that will be habilis modus to secure against a poster or Donator Ratio Dubitandi The Vassals Right being altogether extinct by the Forefaulture there is nothing to be the subject of a confirmation which cannot be of non entis and the Vassal should have obtained a Gift upon the Forefaulture And contra The Vassals Right not being null of it self but such as could not prejudge the King when Lands return to him by the Forefaulture of the Superiour because he did not consent to the same his consent thereto at any time may convalidate the Right before Jus be quaesitum to a Donator If after Forefaulture His Majesty having granted a Remission the person Forefaulted is redintegrated to his Estate as if the Forefaulture had not been or if he should take a new Right upon the Forefaulture When a Forefaulted person has Right to succeed to any other person as Heir so that not only his own Estate but what would belong to him if he had entered Heir would fall to the King by his Forefaulture Quaeritur will the King be Lyable to the Debts of the Defunct seing he does not succeed to the Traitor 's own Estate and Patrimony but in haereditatem quae est nomen universitatis both as to the Debita and Bona and there is no reason that the Defuncts Creditors should be prejudged unless they had been in culpa either themselves or their Debitor His Majesty having presented upon Forefaulture a Vassal If that Superiour should be thereafter Forefaulted Quaeritur If the Feu not being confirmed will fall under his Forefaulture Ratio Dubitandi The Feuer is in the same condition with other Subvassals so that if he do not apply for confirmation he is lyable to the same hazard And yet on the other part it may be thought that the reason why Confirmation is necessary is because when Lands return to the King they return as they were given free of all Rights and Burdens but such as the King did
entering to the possession of Lands whereof the Defunct was in possession but his Title is found thereafter to be void Will his medleing import Behaviour aditionem passive Gift THE late King having granted to a certain person the Gift of an Office at His Majesties presentation There is a Gift of the said Office granted to another person by one having Right by a late Gift to present to the said Office notwithstanding that the person who had the former Gift ad vitam or culpam is yet Living and is not deprived And it is now desired that His Majestie should not only ratify the said late Gift but that of his certain knowledge proper motive and by vertue of his prerogative he should give a new Gift of the said Office Revocking and annulling the former Gift granted by the late King to the present incumbent and giving power to the person to be presented by the New Gift to enter presently to the Exercise and benefite of the said Office by himself and his Deputes And ordaining the present Incumbent to deliver up the Registers and recommending to the Lords of Session to construct His Majesties Gift with the greatest latitude that their Nobile Officium can allow And containing a promise to ratify in Parliament Quaeritur Whether a Gift of the Tenor foresaid be according to Law It is Answered That the samen is altogether against Law and Form for these Reasons 1mo By the common Law there can be no valid Gift of an Office or place unless the same be Vacant and the manner of Vacation exprest in the Gift seing the Office belonging to another who has Right to and in possession thereof the same is not in the hands and power of these who has Right to present so that they may give the same 2do If it be pretended that it may be taken periculo petentis and that the Incumbent may be thereafter deprived or may decease and that the Gift may be effectual in either of the said cases Such a pretence is both against Common Law and our Practique seing it imports votum captandae mortis And by an express Act of Parliament Gifts of Escheat should not be given before they fall by Horning and there is the same Reason as to all other Gifts 3tio That a former Gift granted by the late King who undoubtedly had Right to give the same should be Revocked and Annulled without a previous citation of the person concerned and without so much as a hint of any reasons why his Right should be taken from him is a Streach not only against Law and Form but against Humanity and Justice which is defined Jus suum cuique tribuere neminem laedere 4to That what cannot be done in Law and Justice should be desired to be done by vertue of His Majesties Prerogative is an Injury to so just a Prince And it is of a dangerous preparative that His Majesties Prerogative should be pretended for Favours to private persons that are Unjust and Illegal 5to Whereas it is desired that it should be recommended to the Lords of Session to construe His Majesties Gift if it should be granted and if there should be any Question upon the same with the greatest Latitude that their Nobile Officium may allow The said Desire and Stile is Illegal and without any precedent and should not be a precedent hereafter seing there ought to be no prelimitation upon the Lords of Session And it is their Duty and may be expected from them that they will construe His Majesties Grants according to Law and Justice And their Nobile Officium being as the Highest Judicatory to do Justice according to Law they have no Latitude to recede from the same Gift of Escheat with Backbond IF a Backbond do so affect the Gift of Escheat that the Donator cannot Assign the same Gifts of Forefaulture LAnds being Disponed by His Majesty as being in his hand upon Forefaulture conform to a certain Decreet of Forefaulture mentioned in the Right with the Clause cum omni Jure and the King having the time of the granting the Disposition Right to the Land as being in his hands for committing another Deed of Treason after the former whereupon there was not a Decreet the time of the Disposition Quaeritur If the said former Decreet be taken away whether the Donator will have right to the Lands upon the Supervenient Deeds and new Decreet of Forefaulture following thereupon Ratio Dubitandi The said Right is upon a special Ground causa limitata limitatum producit effectum And the Clause â—um omni Jure is only Clausula executiva and is only to be understood of Inferior Rights to Mails and Duties by reason of Ward Non-entry or otherwayes and not of the right of Property upon other Grounds Swinton Gifts of Recognition A Gift of Recognition bearing Lands holden of the King Ward to have been Disponed but not specifying the same or special as to the Lands but not as to the persons in whose favours the Disposition is made if it will be valid Gift of Ward THE Superior having gotten a Gift of his own Ward either to himself or to another for his behoof gratis Quaeritur If the Sub-vassals may claim the benefite of the said Gift and to be free of the said Ward Ratio Dubitandi That in effect the said Gift is a Discharge of the Ward which being Discharged to the Superior is Discharged to the Subvassal whose Property falls in Ward only consequentially and on the other part as the Superior and Donator to the Ward may take advantage of the same both against the Vassal and Subvassals the Vassal ought not to be in a worse case than another Donator If Gifts of Ward and Non-entry prejudge singular Successors THere are some Casualities which are Fruits of Superiority and have Tractum temporis as Ward and Non-entry c. And these being Gifted will be effectual during the whole time of their endurance as to the Granter and his Heirs But there may be question as to singular Successors Whether the Donator will have right to the Ward and Non-entry for Years after the Giver is denuded Ratio Dubitandi That resoluto Jure dantis resolvitur jus accipientis and such Gifts are of the nature of Assignations to Mails and Duties which are not effectual but during the Right of the Cedents And the Ward and Non-entry do belong to the Superior by reason he wants a Vassal to serve him and the singular Successor having that prejudice he ought after his Right to have the benefite of the Casualities Vide Liferent-Escheat Quaest 7. in Lit. E. Goods belonging to the Rebels at the Horn. A Creditor having affected the Moveables of the Defunct by confirming himself Executor Creditor and having got possession of the same whereby he is satisfied of his Debt Quaeritur If the same may be evicted from him by a Donator to the Defuncts Escheat Answer It is thought they cannot be evicted Seing
Renounced Heir and Executor GIfts of Ward Marriage Non-entry Do these belong to the Heir or Executor Answer They are in rem and some has tractum and therefore belong to the Heir A Person being obliged by a Bond to Dispone Lands for a certain price and the Creditor having charged upon the said Bond and being content to pay the price and in the interim the Debitor deceasing Quaeritur If the Creditor obtain a Decreet for implement against the Heir whether the party bound to Dispone his Heirs or Executors will have Right to the Price Answer It is thought that the Heir will have Right seing there is no Sum due to the party bound but if he Dispone which is only in obligatione the said Sum becometh due upon his Disposition and is not due to any but to a Person who is to Dispone and the Heir only can Dispone If by Contract one of the Parties has Disponed and is obliged to Infeft in Lands and the other is obliged to pay a Sum of Money as the Price Quaeritur If the Seller decease before the Disposition be fulfilled whether the Sellers Heirs or Executors will have right to the Price Ratio Dubitandi The Heir only can fulfil and therefore ought to have the Price and on the other part the Heir is Lyable to fulfil by the Disponers Obligement But the Disponer having taken the Obligement to pay the price in favours of himself his Heirs and Executors the Sum by the Act of Parliament should pertain to the Executors And it appears that the Disponer in place of his Lands intended to have a personal and Moveable Estate What is the Reason of Difference betwixt the last and former case Answer In the last there is a Moveable Obligement for payment of Money And in the other there is no Obligement upon the Creditor but upon the Debitor to Dispone But so that if the Disposition be made a Sum is to be payed which cannot be payed but to the Disponer's Heir after his decease who only can Dispone the Debitors Executors can have no right to the same and it was in the Creditors option either to charge for implement or not so that the Money was not in Obligatione but in Conditione or modo If implement should be craved When an Order of Redemption is used and the Money consigned and thereafter the person against whom the order is used deceases Quaeritur Whether the same will belong to his Heirs or Executors Answer It is thought it should belong to the Heir for the reason foresaid in the last Querie Specially seing an order of Redemption may he used against an Appearand Heir And if that Appearand Heir should after Consignation decease the Money could not belong to any representing him who had no Right and therefore it can belong to no other but to the Heir who should be thereafter Heir and Infeft and should Renounce And therefore it is thought that the Money being the Redeemers Money and upon his hazard untill Declarator it is never Money of the person against whom the order is used until Declarator and then being his in specie is moveable and belongs to his Executors If a Wadset be granted to a Man and his Wife and the longest liver of them two and the Heirs of the Marriage c. And an order of Redemption be used and declared against the Husband and thereafter he decease Whether in that case the Money consigned will be heretable and ought to be given up to be employed for the Wife in Liferent and the Heirs in Fee Answer Affirmative A Bond being ab initio heretable by Obligement to Infeft and Infeftment thereupon And thereafter there being a Bond of Corroboration granted for the same Sum but not heretable bearing to the Creditor only his Heirs and Executors Quaeritur Whether the Sum be Heretable or Moveable Ratio Dubitandi The same is due both by an Heretable and Moveable Bond and the Moveable Bond being Posterior seems to be a Novation of the former posteriora derogant prioribus Et contra the said Sum is due still upon Infeftment and the subsequent Bond is only in accessorio So that jus principale primordiale is more to be considered as to the question concerning the nature and quality of the Right Heirs Male A Father his Eldest Son being Dumb of purpose to exclude him as being unable to manage Doth by a Bond of TailÈie settle his Estate upon another Son and the Heirs Male of his Body Whilk FailÈieing to his other Heirs Male with a Provision That his said other Son and his foresaids should be obliged to entertain the Elder Brother And if the said dumb person should at any time have the Faculty of his speaking he should succeed and the said Bond should be void Quaeritur If the Brother who has got the Estate decease before the Elder without Heirs of his Body If the Elder Brother would succeed to him as Heir Male Answer It is so evident that it was intended that the Elder Brother should not succeed except in the case foresaid if he should have the said Faculty of his speaking And the said TailÈie being made of purpose to seclude him It is thought that he cannot succeed by vertue thereof And his Heirs Males is to be understood his other Heirs Male by the Dumb Person who is excluded Obligements in Contracts in favours of the Heirs of the Marriage A Person being obliged by his Contract of Marriage with a second Wife to resign certain Lands for an Infeftment to himself and the Heirs Male of the Marriage and to employ also 60000 lib. for the Heirs of the Marriage And his Eldest and only Son of the first Marriage being bound by a Bond granted thereafter for implement of the said Contract of Marriage in the same manner as if he had been obliged by the Contract And the Father having accordingly resigned and taken Infeftment and the Son of the second Marriage being Infeft as Heir of Provision in the Lands provided as said is in favours of the Heirs of the said Marriage Quaeritur If the Son of the first Marriage being after the said Contract Infeft in the Fee of the Fathers other Estate will be Lyable to relieve the Heir of the second Marriage of the Debts contracted after the said Fee as Successor Titulo Lucrativo or being bound for his Father as said is Upon that pretence that his Father ought to perform the Obligements of the said Contract cum effectu and to free the Heir of the second Marriage of his Debts It is thought that the Contract being once fulfilled by taking the Infeftment foresaid and by employing of the said Sum both the Father and his Cautioner the Eldest Son were immediatly Liberate the said Obligement being satisfied The import of the same being that the Son of the second Marriage should succeed as Heir in the saids Lands but not that he should be free of his Debt Or that being free the Father
and her foresaids in an Annualrent effeirand to the said Sum out of his Estate beginning the first Terms payment at the Term of Whitesunday or Martinmass after the FailÈie of Heirs of his Body in case they faill with this provision that in respect the said Infeftment is not to be effectual but in the case foresaid it shall not be prejudged nor questioned upon pretence of any length or lapse of time or Prescription And that the same shall not Commence or begin to run until the said Right become effectual in the case foresaid Publick Infeftments IF an Annualrent to be holden of the Disponer be confirmed by the King Quaeritur If that Confirmation will make it publick If an Annualrent be Disponed out of diverse Lands to be holden of the Granter and a Decreet of poinding of the Ground be got as to some of the Lands will it make the Right publick as to others Inhibition INhibitions upon Bonds or Contracts if they import only that nothing should be done in prejudice of the same and execution thereupon So that the person having reduced upon the Inhibition cannot make use of the same to sustain any Right but such as Depends upon the Ground of the Inhibition Both the person Inhibited and the person receiver of a Right being out of the Countrey the time of the Inhibition Quaeritur If the Right be Lyable to Reduction Ratio Dubitandi Both the Inhibited and the party Receiver should be certiorated and put in mala fide And as the Person Inhibited is not certiorate if he be out of the Countrey if the Inhibition be not Execute at the Peer and Shoar of Leith so there is eadem Ratio as to the Lieges An order being used upon a Conventional Reversion or Legal against 〈◊〉 Person Inhibited Will the Inhibition affect the Renounciation granted by him seing he may be forced to give it and it has Dependence upon a Right before the Inhibition If an Inhibition being Execute against the Debitor only and being in cursu only as to the Inhibiting the Leiges where the Lands lye being at a great distance and Intimation in the mean time to the party who is about to bargain with the Debitor will put the said party in mala fide So that there may be a Ground of Reduction Ex capite Inhibitionis against the party Inhibited and that the said Right is fraudfully made and accepted without a necessary cause in defraud of the Creditor and after intimation of his Diligence A whole Barony of Land being affected with an Inhibition and being thereafter Disponed in several parcels to diverse persons If one of the saids purchasers should be distressed by a Reduction ex capite Inhibitionis may he have recourse against the others for their proportional parts for his Relief they being in rem correï debendi Vide Annualrent Quaest 1ma If after an Inhibition is Registrate and Fourty Dayes are past if the Creditor getting notice that his Debitor has Lands within other Shires may inhibite the Leiges there and Registrate within Fourty Dayes And if in that case the Debitor must be himself again certiorate By a Minute an Estate much incumbered being Disponed and the price being agreed upon at a certain rate per Chalder or 100 Merks But so that the Incumberances should be purged by the price pro tanto and any Ease by the Creditors should redound to the Seller and the whole incumberances being purged the Buyer should Compt for the superplus of the Free-Money and should pay beside 20000 Merks after all is purged Quaeritur Whether the Benefite of the said Contract can be affected with an Inhibition or with Arrestment at the instance of Creditors of the Disponer Ratio Dubitandi The said Benefite is not Liquid If Inhibition does affect Lands acquired after Inhibition Answer Affirmative The Debitor not being Discharged to Dispone the Lands he has presently but simply his Lands and Estate If at least it affecteth such Lands as are acquired within the Shire where the Inhibition has been used Quaeritur If Inhibition doth affect Bonds though Moveable by the Act of Parliament so that the Creditor cannot Assign the same Quaeritur If Inhibition doth affect Bonds so that the Creditor cannot thereafter Assign the same Ratio Dubitandi That it is thought they affect only real Estates and Interests and there is no mention of Bonds and Debts which are Personal and they come not under the General of Goods and Gear which are real things Whereas Debts are Nomina and Entia Juris Rationis If Inhibitions affect Lands acquired thereafter The Ratio Dubitandi is No Diligence can affect non Ens and what did not belong to the Debitor And if Inhibition will not affect Lands when it is not Execute at the Mercat Cross where they lye much less can it affect Lands that has not Situm as to the Debitor and does not pertain to him and the narrative of the Inhibition is that the Debitor intends to defraud his Creditor by putting away his Lands which does not militate as to Lands which he has not then A Bond being granted after Inhibition and thereupon the Debitor being denounced and his Escheat Gifted Quaeritur If the Horning and Gift may be Reduced ex capite Inhibitionis Ratio Dubitandi That the Ground being taken away the Superstructure falls so that the Bond being reduced the Horning doth fall Contra The King is not concerned upon what Ground the Rebel is at the Horn if the Horning be valid and formal and the Inhibition doth import only that the Debitor should not give any voluntar Right whereupon his Estate which is the subject of Execution for Debt may be taken away but not if he should commit Crimes either of Treason or should be Rebel or do deeds wherupon Recognition may follow That the King or other Superiors should be prejudged of their Right and Casualities of Forefaulture Liferent-Escheat c. George Marshal contra Inhibition upon Teinds IF Inhibition upon Teinds interrupteth prescription without a citation specialy where the possessor is in possession by a Right If Inhibition puts a party bruiking by a Right in mala fide so as before his right be reduced to be lyable for bygones after the Inhibition Tweeddale If to the effect foresaid he be in mala fide because being Commissioner for the Earl of Lauderdale he prevailed upon the same Grounds against Oxenford Insinuatio DOnationes quae excedunt summam quingentorum solidorum sive aureorum insinuandae sunt ut effusae donationes coerceantur ne fraus struatur Creditoribus falsis donationibus Insinuatio est publicatio donationis apud acta vel ejus quod agitur apud Judicem in scripturam redactio Perez Inst Lib. 2. tit 7. Instance BY the common Law of the Romans and by the custome of France Instantia perit after three Years as to all effects of it v. g. Interruption of Prescription But without prejudice of the Action if it be not
or where the Heir to the Disponer had Right himself the time of the disposition Quaeritur quo casu Jus Superveniens accrescit And if it should be understood of the Right only of moveables and such things as may be transmitted without infeftment And not of Lands and others which cannot habili modo be conveyed much less accresce without Infeftment Justice-General IF the Justice-General may be Judge to Ryots or any Crime or Delict whereof the pain is not defined by Law but left arbitrary K. Nearest of Kin. THE Interest of the nearest of Kin is that they may be confirmed Executors and if they die before confirmation they do not transmitt and yet if the Testament be confirmed by any person nascitur actio against the executor who is Lyable to the nearest of kin which they transmitt There being three persons who are nearest of kin to a Defunct and the edict is moved and served at the instance of the Procurator-fiscal and two confirmed only whether will the third have action against the other two as nearest of kin for a part Ratio Dubitandi That these who are executors of Law cannot have Right de facto unless they confirm that being modus adeundi in mobilibus and the nearest of kin by the act of Parliament has only an action in the case where he cannot adire there being executors nominate and confirmed who have Right to the office and a third part so that the nearest of kin may pursue for the rest When the nearest of kin have action against the Executor Nominate if some of them decease before confirmation whether will they transmitt the forsaid action Ratio Dubitandi it is not Officium but Jus legitimum which may be transmitted as the relicts part and bairns part without respect to the confirmation and on the other part it may seem that seing they did not intent action before their decease they do not transmitt and in such cases the intenting of action is instar aditionis and there is no representation in moveables There being two Daughters of which one being Married by her Contract of Marriage accepts her Tocher in satisfaction of what she could Pretend to by the decease of her Father and Mother Quaeritur the Father having survived the Mother whether will the other Sister have entirely her Mothers part as nearest of kin to her Ratio Dubitandi The other had renounced And on the other part the Mothers part did entirely belong to her self and to her nearest of kin and the said sister that renounced is alse near to her Mother as the other Vide Renunciation Litera R. KING IF the King take burden in a Discharge granted by a Minor that he shall ratify at perfect age Quaeritur whether the Kings successors will be lyable representing their predecessors Ratio dubitandi The King succeeds not as Heir but Jure Coronae as in the case of single incorporations V G Bishops who are said to be successors and are not Lyable to the debts of their predecessors or in the case of feuda ex pacto providentia Cogitandum Earl of Tweeddale and Duke and Dutchess of Monmouth If the King be in the case of other Minors So that a revocation is not sufficient unless a reduction be intented Debito tempore intra quadriennium utile King and Prince IF the King and Prince be to be considered as incorporate so that these who succeed are in the case of successors of Church-men and do not succeed by Inheritance but by succession L. Laudimium LAudimium debetur Usufructuario non Proprietario Thes Besoldi verbo Handlohm P. 359. versus finem Licet Dominus directus post alienationem ab Emphyteuto factam novum possessorem investiat nulla facta mentione Laudimij aut ab eo censum recipiat tamen suo juri non censetur renunciare sed Laudimij integram exactionem habet nisi expresse donaverit Ibid. p. 360. sect 2. Laudimium nondum exactum connumeratur inter fructus pendentes si Emphyteusis pertinet ad parochum illud non exactum ad haeredes haud transmittitur sed cedit ei qui in beneficio succedit ibidem Lawburrows for Burghs IF a Burgh be Lyable to find Lawburrows for their Burgesses The Lord Thesaurer-Deput In Lecto IF in Lecto a Person having children may marrie their Mother in order to their Legitimation in prejudice of his Heirs If after a criminal and capital sentence a person condemned be in Legitima potestate Seing he cannot be said to be in Lecto and the Sentence doth not affect immobilia If a man on death-bed be accessory to Treason whether will his Estate forefault in prejudice of his Heir It seemeth that though in Lecto Lands cannot be sold or annailÈied any way in prejudice of the Heir that being only the case of the old Law of deeds in Lecto Yet consequentially a man on death-bed may do many deeds in prejudice of the Heir and a Traitor on death-bed may be taken out and punished If a Band being heretable may be made moveable of purpose in Lecto Executors of Colonell Mathison George Hadden If an infeftment be given of Lands holden Ward upon the resignation of the Father in Lecto and a reversion apart to the Father to redeem upon a Rose-noble Quaeritur if the Ward and Marriage be cut off Answer if the Lands hold of a Subject Sibi imputet that he did not enquire and know the condition of the Disponer But if they hold of the King there may be some question Seing the Kings Grants may be questioned upon Obreption or Subreption and the negligence of his Officers should not prejudge him and it appears the course forsaid was taken of purpose to defraud the King of his casualities being in spe proxima and the disponer having Provided for himself that he should be master of his Estate by the Reversion forsaid It is thought there is a Decision in the said case in favours of the King which should be tryed A person on death-bed having made a Disposition in favours of a Creditor but to the Prejudice of his other Creditors The Defuncts whole estate being disponed in favours of the Creditor forsaid Quaeritur If the Defunct could on death-bed prejudge his other creditors and preferr one to all his other Creditors Seeing persons being on death-bed are not in Liege Ponstie as to any deeds But the making of Testaments and not as to deeds inter vivos and if the Defunct in his Testament had made such a Conveyance in favours of a Creditor it could not have been sustained and any deed done on death-bed is upon the matter but a Legacy or codicill and a dying person should not be allowed to do any fraudulent deed and it is a fraud where there are many creditors to give one the whole estate and a person in Lecto cannot Prejudge his Heir and a fortiori ought not to prejudge his creditors who would be preferable to Heirs and as in the
Titio nec imputandum nec officit Patrimoniorum siquidem conditio Jura viduae liberorum legibus constituuntur nec aequum est ea ex arbitrio haeredis pendere aut ambulare Porro haereditatis delatio Facultas adeundi aliis casibus nedum hoc haud parum operatur haerede enim perduelli Majestatis reo haereditas etiam non adita amittitur Fisco quaeritur Legitimation per subsequens Matrimonium A Person after his first Marriage of which he had Children having Married again and having diverse Children by the Woman Married to him in that second Marriage elder nor the first Children which are thereby legitimate Quaeritur Whether the Eldest Son with the second Wife will be preferred to the Son of the first Marriage as to the Right of Succession Ratio Dubitandi The first Marriage was Contracted Spe and in contemplation that the Children of that Marriage would succeed and the Eldest Son by his Birth had Jus primogeniturae as the first Lawful Son which could not thereafter be taken from him e contra the Son of the second Marrriage the time of the Fathers Death which is to be considered as to the question of the Succession is his Eldest Lawful Son Cogitandum If a Person may Marry on Death-bed in order to the Legitimation of Natural Children in prejudice of his Agnats who would otherwayes succeed Marriage and Legitimation THere being a Declarator intented to hear and see it found that the Children were Lawful in respect there was a promise and Copula Quaeritur If the pursuit being after the Fathers Decease in order to the Succession to the Good-sire the promise may be proven prout de Jure as it might have been before My Lord Neutoun told me that after the Fathers decease it is found not probable by Witnesses Laird of Lauder Lenteratio LEuteratio vide Appellatio in Litera A. Libellarius Contractus LIbellus sive Libellaria est contractus quo interveniente scripturâ res immobilis venditur certo pretio certa insuper pensione in singulos annos ea lege plerumque addita ut stato condicto tempore renovetur denuo numerato pretio certo vel arbitrario Hering de molendin q. 29. n. 4. Est Italis usurpatus dicitur a scriptura Libello seu brevi charta Ibidem n. 6. Liberi INdefinito Liberorum nomine censetur actum de natis tempore Contractus non de nascituris Hering de molendin quaest 20. n. 19. Liferenter IF a Liferenter of Lands Stock and Teind having Set the Lands to Tennants for a Duty for the Stock and drawing the Teind and having deceased before Martinmass after drawing the Teind Quaeritur will she be Lyable to the Heir for the half of the Teind Ratio Dubitandi For the Heir That she dying before Martinmass he ought to have the half of that Years Duty And for the Liferenter that she had Right to the Teind after it was separate and collected so that she might have disposed of it and having gotten it it cannot be taken from her and that the Legal terms are to be considered in the case of Debt when dies cedit but in this case nihil debetur but she has Right to the Fruites Teinds and Quota of them in the same manner as the Tennant and as if she had laboured Vide Third and Teind Letter T. Vide Titular litera T. q. 2. vide Milns Litera M. Where Grass Roums are set for payment of a Silver Duty by the Tennent entering at Whitsunday the half at Martinmass and the other half at Whitesunday thereafter Quaeritur If the Liferenter decease after Martinmass whether the Martinmass Duty will belong to her Executor Ratio Dubitandi That the Duty payable by the Tennant entering as said is and going away at the next Whitesunday is payable in respect of the Cropt and proventus of the next Year either of Corns or foetura animalium and it is without question that a Tennant paying a Silver Duty for a Corn-Roum albeit he pay at Martinmass after his entry yet it is payed for the next years Cropt so that the Liferenter can pretend to no part thereof deceasing the time foresaid and on the other part it appears that there may be a difference as to Grass Roums seing the half of the Duty seems to be payed for the profite of the Grass from Whitesunday to Martinmass which falls within the Liferenters Right Quaeritur Quid Juris As to Salt-pans and Milns if the Liferenter have the same in her own hand whether her Right is presently determined by her Death The same being set to Tennants from Candlesmass to Candlesmass If the Liferenter deceased after Lambmass and Martinmass will her Executors have any part of the Duty after Lambmass When Rentals are set in these terms That beside the Rental Duty there should be every five Years a considerable Sum payed as in Contractu Libellario Quaeritur If the Liferenter will have Right to that Sum if it fall to be payed during the Liferent When the whole Estate of a Nobleman is Disponed reserving his Liferent or of a Baron will the Liferenter have Vote in Parliament and Voice in the Election of Commissioners for Shires A Lady being Infeft upon her Contract of Marriage in Lands for her Liferent Quaeritur If Tacks set thereafter by her Husband will bind her Vide Terce quaest ultima Executors of a Liferenter IF a Woman deceaseth after Whitesunday before her Husband will her Executors have Right to a part of the years Farms Liferents DIes as to Liferents when the question is betwixt the Executor of the Fiar and Liferenter cedit at Whitesunday and Martinmass as the Legal Terms Quaeritur If a Bond be to a Man and his Wife the longest liver payable at Lambmass and Candlemass and the Husband deceasing after Candlemass will the Husbands Relict have Right to a half year at Whitesunday If a Father be Infeft in Liferent in Lands and be content to renounce his Liferent in favours of his Son Quaeritur If it be habilis modus to extinguish his Liferent Ratio Dubitandi He is the Superiors Vassal during his Life and cannot cease to be Vassal without the Superiors consent at least sine refutatione When a Vassal is Year and Day at the Horn if he has granted a Right to be holden of himself what will be the Import of his Liferent If a Liferenter do Dispone his Liferent of Lands or if the same be Comprysed from him and thereafter he be Year and Day at the Horn Quaeritur If the Superior will have Right to the Liferent as if the said Right had not been granted Answer It is thought he can have no other Right than such as the Liferenter had and affected with the said Right If the Liferenter be Forefaulted will not the King have the Right of the said Liferent without the burden of the said Rights And if it be so Quae Ratio
of a Subject A person being charged with Precepts out of the Chancery to Enter a person presented upon forefaulture and in respect of his Contumacy the person presented being Infeft upon a Precept out of the Chancery and thereafter deceasing Quaeritur the Lands holding Ward whether the Marriage of the appearand Heir will belong to the King or to the Superior Ratio Dubitandi That the Superior not having owned the defunct to be his vassal he cannot claim the Marriage of his Heir and on the other Part The King is not Superior and grants only Infeftment in Subsidium and doth what the Superior without reason refused to do and there is a great difference betwixt the case foresaid and that when the Superior not being Infeft himself is therefore charged to Enter with certification to Lose the Superiority during his Life Because in the first case there is no contempt of the Superior but a wrong done to the person who would enter being a stranger to the Superior not being formerly his vassal and in the other case there is both a wrong to his own vassal and a contempt of his own Superior that he is in non-entry and the more aggravated that being charged to enter he continues in non-entry and the act of Parliament therefore provides that he should Lose the Superiority It is informed by Iames Hay That the Lords have lately found That when Lands are holden some simple-Ward and some taxt both the single and taxt Marriage will be due The President being of another opinion If a Superior Infeft his Vassal being Minor before the Marriage fall by his attaining to the age of fourteen years may he claim the Marriage after it falleth If he Infeft him after the Marriage has fallen whether doth he pass from the Marriage Marriage Clandestine BY the act of Parliament anent unlawful Ordinations these who are so Married amitting jus mariti relictae Quaeritur If the Husband Loseth his Curiality or the woman her Terce Or only Jus mariti as to the Communion of moveables Acts Specially penal being stricti juris and there being beside other pains If Clandestinae Nuptiae without consent of Parents though they bind the parties so that they cannot Marry with any other yet will be null as to Parents and friends that the Children cannot succeed to them against their will Materna Maternis IF in no case that Maxime Materna Maternis has place with us And in special in that viz. if a Person succeed to his Mother and decease without Heirs upon the Fathers side will the Fisk exclude the Mothers friends the Estate being profectitious and descended from her In Allodialibus there is no succession of the Mother or her friends active but in feudis foemineis if a Son should succeed to his Mother and should thereafter Die Quaeritur whether his Heirs upon the Fathers side would succeed to such Lands or his Mothers Heirs Ratio Dubitandi That the said Lands are given ab initio primo investito and his Heirs which must be understood haeredes Sanguinis and the son having succeeded to his Mother his Heirs upon the Fathers side cannot be thought to be Heirs either to her or her predecessors and therefore in that case it is to be thought that the Rule should have place Materna maternis and there is the like reason in Patents of Honour being quasi feuda and being granted by the King to the receiver of the Patent and his Heirs A Person as said is being infeft in Lands as Heir to his Mother and dieing without issue whether will his nearest Kinsman upon the Fathers side or Mothers side succeed to him in the said Lands Ratio Dubitandi That by our custom the Fathers friends are alwayes preferable and that Rule Paterna Paternis Materna Maternis has no place and yet it is thought that in mobilibus when a person has Right to the same as Executor to his Mother they go to the nearest of Kin upon the Fathers side Because there is no affectio as to mobilia and there is no Limitation or Destination of Heirs as to these But as to Lands when the Right is taken to a man and his Heirs and a woman succeeds to the said Lands and thereafter her son as Heir to her if the son die without issue his Mothers Heirs ought to succeed Seing by the Infeftment no person can succeed but he that is Heir of blood to the person first infeft either immediately or mediately Quid Juris as to Bands for Sums of money Answer It appears that there is eadem Ratio Seing there is in bands Limitatio haeredum Matrimonium SOla nuptialis benedictio solennis publicus in Ecclesia benedicendi ritus vera est Matrimonii apud Christianos executio ex quo tempore jura Matrimonii vigorem suum obtinent Licet concubitus non fuerit secutus Christenius de jure Matrimon Disser 1. quaest 1. Si post sponsalia pura concubitus accesserit sponsa conceperit sponsus vero ante confirmationem diem obierit de jure partus non est Legitimus quia non est ex justis nuptiis Idem-eadem disser Quaest 2. Isto casu licet interdum Sponsalia habeantur pro Matrimonio illud locum habet solummodo quoad vinculum mutuae promissionis ne illud temere solvatur non quoad reliquos Matrimonii effectus Idem eadem diss Jure Civili Divino Canonico non aliter Legitimum est Matrimonium quam si Parentes consentiant nec minus Matris quam Patris consensus requiritur praesertim mortuo Patre Non interest utrum consensus sit expressus an tacitus paria enim sunt consentire non contradicere Idem de sponsalibus Diss 1. quaest 3. p. 17. 18. Parentibus non permittitur Matrimonium impedire si id fiat injuria cum causa sit cognoscenda Statutis quarundam Civitatum cautum est parentes isto casu ad Judices Ecclesiasticos seu Commissarios causarum Ecclesiasticarum esse citandos si Liberi sint minores viginti quinque annis non tenentur parentes rationes sui Dissensus proferre sin Liberi annum vigesimum quintum expleverint Parentum oppositio non aliter locum habet quam si justas Dissensus causas proferant Ibid. P. 19. Si Titiae ea conditione Legetur si arbitratu Seij nupserit habetur pro non adjecta debetur Legatum licet conditioni non pareatur Christen de spons quaest 17. Si ad sponsalia clandestina quae consensu Parentum carent concubitus accesserit non confirmatur Matrimonium si parentibus justae causae sint dissensus haec sententia curijs Holland placuit idem quaest 20. Mensis SI Mensis simpliciter proferatur intelligitur de mense solari Duodecima parte anni vel triginta Diebus Thes Bes in Litera M. 68. verbo Monat p. 664. Mensura Taxative Demonstrative INterest utrum Mensura in venditionibus Taxative an vero
pactum non intervenerit praevia tamen denunciatione ut debita solvat licet pignus alienare cessante debitore in solutionem per biennium post denunciationem Perez Lib. 2. Tit. 8. Plenishing If a Wife be provided to a part of it BY Contract of Marriage a Wife is provided in satisfaction of Terce Third or other part of Movables except the half of the Plenishing of the House the time of the Husbands Decease Whereto it is provided she shall have Right Quaeritur If there be no Free Gear will the Heir be obliged to free the half of the Plenishing Ratio Dubitandi The Contract bears she should have Right and she is in the same case as if her Husband had disponed for an Onerous Cause the Plenishing he should have the time of his Decease And on the other part it seems this Provision should be understood Conditionaliter if there be free Goods And the Clause being an Exception from a Renunciation both the Renunciation and Exception from it ought to be of the Regula and of that which would belong to her if she were not excluded which could only be the free Gear If the clauses do not bear besides the Heirship Quaeritur If she will have Right to the plenishing without Deduction of the Heirship Eadem Ratio Dubitandi Possessor PRocessum ligitiosae possessionis Hispani Interim Galli Recredentiam Belgi Provisionale remedium alii processum informativum appellare solent Budaeus litem vindiciariam Thes Bes in Litera I. 29. verbo interim mittel Possessor bonae fidei fructus consumptos suos facit absolute extantes vero Dominocedunt Possessor vero malae fidei nec consumptos nec extantes suos facit sed Dominus extantes vindicat consumptos vero condicit condictione sine causa Perez lib. 2 Tit. 5. Poinding of the Ground A Lord of Erection having Disponed Teinds and the Reddendo bearing a Sum to be payed for a proportional relief of the blensh duty payable by the Lord of Erection and certain Bolls of Victual to be payed also for his relief to the Minister Quaeritur Will the Minister have action for poinding the ground 2do What will the Superiors poinding the Ground import A Decreet of Poinding the Ground being got against the Heretor for the time and the Tennants Quaeritur If after the Death of the Heretor the Lands may be comprysed for the Bygones from the Appearand Heir without a Decreet of transferring or a new Decreet Answer It is thought there is no need of any other Decreet the Decreet being Really founded which may be recovered against an Appearand Heir and put in Execution by Comprysing or poinding against him Prerogative IF the Question betwixt Roxburgh and Lothian should be determined with respect to his Majesties Prerogative being the Fountain of Honour It is thought that His Majesties Concessions whatever the Subject be should be judged Jure communi And that Jus quaesitum whether as to Honour and precedency or any thing else cannot be taken away upon any such pretence The Prerogative is instar littoris which is defined quo fluctus Hybernus exaestuat So that as the Sea does not go beyond the Shoar when the Sea is most full so the Prerogative and Plenitudo Potestatis does never go beyond Law which is a great Littus and Boundary of just Power The Royal Prerogative is acknowledged and asserted by diverse Laws and Acts of Parliament of this Kingdom But how far the Extent of the same may reach is a point of State and Policy of the highest nature and importance and not to be defined by the Opinions of Lawyers but by the Highest and Legislative Authority The Royal Prerogative is not only asserted in the general by the Laws of the Kingdom but diverse and great Powers Rights and Priviledges belonging thereto are in special declared by diverse Acts of Parliament both in Relation to the Government and in Relation to His Majesties Interest and Questions and Causes betwixt Him and His Subjects As the Power of Calling and Dissolving Parliaments The Choising and Appointing Officers of State and Commissioners and Judges To make War and Peace And that there can be no Meetings to Treat or determine in Matters of State without His Majesties Authority and Warrand And that upon no pretence there can be any Rising in Arms without His Warrand And His Right to Custums And Power to grant Remissions for the Highest Crimes And that the Negligence of His Officers cannot prejudge Him And albeit by the Common Law the Eldest Superior is preferable yet when Lands are holden of diverse Superiors Ward the Marriage of the Vassal which otherwayes would belong to the Eldest Superior doth pertain to the King tho as to the Vassal his latest Superior And by custom albeit the going to a Miln for never so long a time being facultatis doth not import Servitude without a special Astriction yet the repairing to His Majesties Milns by the space of Fourty Years doth induce a Servitude without any other constitution As to which and other points of the Prerogative explained by Law and Custom Lawyers may and ought to give their Opinions in Law But as to Lawyers and Juris-consults it is said Turpe est sine lege loqui ubi leges silent they cannot but be silent And the Laws of Scotland which ought to warrand the Resolutions and the Opinions of Lawyers in Questions concerning the State and Government are only the Statutory Law and Acts of Parliament and the common Law and custom and undenyable practique of the Kingdom As to the Civil Law of the Romans it was only the Municipal Law of that People And by reason of the great Equity of it in Questions de Jure privato tho it has not the force of Law with us yet it is of great Authority and use in cases not determined either by statute or custom But as to Questions of State and Government the Civil Law is of no use with us in respect the Laws of all Nations concerning their State and Government are only Municipal and the Constitution of the Respective States doth varie both from that of the Romans and for the most part each from another So that any Questions concerning the same cannot be solidely or warrantably Answered upon Principles or Reasons brought from any Law but the constitution of the Government and Laws and Customs of the Nation and Kingdom concerned It is conceaved That when the Opinion of Lawyers is asked Res should be integra and they should be at liberty to give their Opinion freely and without prejudice which they cannot doe after His Majesty has any way predetermined them by declaring his own Royal Will and Pleasure As to that Question What can be said in Law in defence of these who have acted contrary to Law in Obedience to His Majesty or upon his Royal Dispensation if they should be questioned in the time of Succeeding Kings It is Answered That upon the Grounds foresaid
nothing can be said positively to secure them from Question either by our Law or Custom The said case being not mentioned nor determined by either But it is to be thought and presumed that His Majesties Prerogative being asserted by the Laws foresaid and His Majesties owning that power to Command and Dispense as a part of His Prerogative and they conceiving that it was not their duty to dispute His Majesties Power Succeeding Princes will not think it their interest to be severe against any person for exceeding in Obedience to their Royal Predecessors Prescription IF a Feu-Charter of Kirklands not confirmed by the King or Pope with Seasins thereupon may be a Title to warrand Prescription Temporary Prescriptions as in case of House-Mails Servants Fies Ejections c. If they run against Minors The Vassal retouring his Lands to be in Non-entry Fourscore Years Quaeritur If he may object Prescription quoad the retoured Non-entry Duties Seing after the Years of prescription he confesseth the same to be due Temporalia ad agendum sunt Perpetua ad excipiendum If His Majesties annexed Property does prescrive If Prescription run against these who were Forefaulted by the Usurper Qui non valebant agere Found for the Negative Lauderdale contra Tweeddale That Lauderdale his Father and Good-Sire non valebant agere Because upon his Fathers Resignation Queen Ann was Infeft in Liferent and might have excluded them during her Lifetime and though he might have intented a Declarator yet that being such an Action as could not bring him to possession he was not obliged to intent it This Reason appears not to be without some Question seing if there were a Liferenter and Fiar and the Fiar should not prevail with the Liferenter to join in an Action for interrupting prescription the Fiar should be without remedy if he would not interrupt by Declarator and if a Declarator do interrupt it cannot be said that non valebat agere 2do A Declarator would have brought the Lord Thirlestoun to Civil possession at least so far as it would have been declared that the Queens possession was his and by vertue of the Right thereof he was Fiar And if the Queen would not owne the possession to have been by that Right she should have been forced to remove So that by that Action they might have attained natural possession Before the Act of Parliament 1621. anent Comprysings the Legal ran against Minors which argues that the Temporary Prescriptions of SpuilÈies for House-Mails Removings c. run against Minors If there be a difference betwixt the time of prescription in England and Scotland Whether is prescription inter decisoria Item If Prelates provided before the Act of Parliament 1585. against Dilapidations may notwithstanding thereof set Tacks without hazard Seing the Act seems to militate only as to persons provided thereafter If a Feu-set contrary to the said Act against Dilapidations may be a ground of Prescription Ratio Dubitandi That by the said Act the Patrimony of the Prelates is extra Commercium and is of the nature of the annexed property quod non est alienabile non est praescriptibile Vide Dilapidation in litera D. If in all cases when an Obligement or Interest and Right is in the Defenders Right whereby he bruiks may he alledge Prescription as he cannot do in the case of Reversion there being Eadem Ratio What is the Reason that Reversions Registrate do not prescribe Seing Bonds Registrate do notwithstanding prescrive If a Faculty granted to a Person as v. g. to the Disponer of Lands and a power to Dispone the samen or to Redeem upon a penny doth prescrive being granted apart If Prescription being alledged against a Bond it be Relevant to reply and to offer to prove by the Excipients Oath that to his knowledge the the Debt is due and true and not satisfied If a Reversion be granted only for five Years Quaeritur If in that case it prescribes against Minors Vide de Retractibus Gentilitiis if they prescribe against Minors If a Minor acquire Right to a Comprysing near expired singulari titulo will the Reversion be prorogate and if there be a difference betwixt a Minor succeeding as Heir or otherways Singulari Titulo Prescription against the King THE Act of Parliament 1617. Militateth against the King as to real Actions when the Defender has prescribed a Right by possession founded upon the Rights therein mentioned as appears by the express words and the ground of that Prescrption being not so much odium negligentia non petentis as favor possidentis which is the same as to the King as to another But in that part of the Act anent the prescription of Personal Actions there is no mention of the King and he cannot be said to be negligent and it is declared by Act of Parliament that the negligence of his Officers shall not prejudge him Quaeritur therefore if Prescription in that case be competent against the King Verba semper quandocunque designant temporis infinitatem si in pacto de retrovendendo adjiciatur haec clausula ut quandocunque venditor ejus haeredes velint pretium offerre Praedium recipere possint non obstante triginta annorum praescriptione Jus redimendi semper in perpetuum competit nisi possiderit Emptor pro suo vel contradixerit Reluitioni ab eo enim tempore incipit praescriptio In Contractibus enim nullum verbum debet esse otiosum verba autem quandocunque c. essent otiosa si non operarentur Thes Bes litera I. verbo 5. Je und allwegen p. 423. 424. Princeps potest privato privilegium concedere ut ipse solus in aliqua parte maris aut fluminis publici piscari possit aliosque ne id faciant prohibere Loca publica quae Jure Gentium communia sunt praescribi possunt tanto tempore cujus initii memoria non existat praescriptio enim immemorialis vim habet privilegii seu Tituli potius praesumpta concessio quam praescriptio dicitur praesumptio ex ea exsurgens est Juris de Jure nec admittit probationem in contrarium Jus Flaviatile p. 260. n. 261. Praescriptio impium praesidium Novel 9. Respublica municipium non restituitur adversus praescriptiones temporales quae Jure veteri respuebant restitutionem vide Frisch Tom. 2. Exercitat 2. n. 58. sequent Jure Novel praescribitur contra Rempublicam Civitatem Triginta vel quadraginta ann ibidem n. 63. Praescriptio Conventionalis a Defuncto coepta currit contra Rempublicam quae ei successit Ibidem n. 65. In Praescriptione Jure Civili bona fides requiritur ab initio nec desinet usucapiens acquirere licet mala fides superveniat Jure autem Canonico bona fides requiritur toto tempore Requiritur etiam Titulus id est justa causa possessionis habilis ad transferendum Dominium Res furtivae vi possessae Jure
Civili usucapi nequeunt Perez Instit. Tit. 10. Nihil enim operatur bona fides aut Titulus propter vitium nisi vitio purgato nempe re furtivâ reversâ in potestatem Domini Servus Fugitivus non usucapitur quia fugiendo sui furtum facere dicitur Si quis mala fide absente forte Domino vel negligente aut eo decedente sine successore fundum alienum possederit vendiderit Emptori bonae fidei non obstat usucapioni vitium quasi rei furtivae non enim fundi locive furtum committitur aut rerum immobilium facilis est interversio Res Fisci usucapi non possunt quia Juris publici sunt bona autem vacantia usucapiuntur quae haeredem non habent si antequam a Fisco occupentur ab alio possideantur quia nondum Fisco denunciata non sunt Fisci sed manent in Commercio Presentation upon Forefaulture QVaeritur If a Composition be due to the Superior for receiving a Vassal presented by the King upon a Forefaulture It is thought That it is not due seing he is obliged to receive him and the Lands belonging to the King by the Forefaulture he does a Favour to the Superior by presenting one in his place The King having presented a Vassal to the immediate Superior some years after the Forefaulture of the former Vassal Quaeritur Whether the Person presented will have Right to the Duties become due since the Forefaulture or if the same will belong to the Superior Cogitandum But it seems that the King having no Right to the Lands which he cannot hold of a Subject but having only Right to present a Vassal in the interim the Duties should belong to the Superior seing the Property belongs to no Person And the Superiority draws unto it the Right of Property and the Superior not having a Vassal ought to have the duties of the Lands Otherwise if the King should not present for many years he should want the Fruits and Benefit of his Superiority And it is not his fault that he wants a Vassal seing hardly he could force the King to present The Lord Tarras Process against Strangers IF a French Man or Hollander v. g. should retire out of France or Holland hither and should be Pursued in this Kingdom at the instance of these who have contracted with him in the Place where he was Quaeritur If Process should be Sustained against him here And if it should according to what Law should he be Judged Seeing our Judges are not presumed nor obliged to know any other Law but our own and the civil Law Answer They ought to have Process according to the Law of the Place where they Contracted which may be known upon a Commission Seing Mobilia and Immobilia habent situm viz. illa fixum ista vagum Quid juris as to nomina Debitorum utrum sequuntur personam Debitoris an Creditoris So that a Debt due by a Scotsman to a Stranger should be considered as a Scots interest res Scotica and a Testament concerning the same should be confirmed in Scotland Quid Juris as to annualrents when the Laws of the Place where the Creditor lives and our Laws do vary Quid Juris When the Debitor being a Scotsman and having granted Bond in Scotland has retired elsewhere both as to the effect of confirmation and Annualrent whether Lawful or no Lawful And if the Annualrent should be ever considered with respect to the Place where the Debitor was Incola the time of the contracting Procuratories of Resignation IF Procuratories of Resignation granted by Magistrates Expire by the decease of the granters Promise to Dispone not in writ IF any Person or their Heirs may be pursued for implement of a promise to dispone Lands and Heretages it being referred to the Oath of the Person that made the Promise or of his Heir if he be deceased that such a Promise was made Answer That it is thought that as when upon a Treaty and Agreement Writs are drawn Parties may Resile before Writs be subscribed There is eadem if not major Ratio in Promises which cannot be perfected but in Write Et nihil actum creditur dum quid supersit agendum nisi accedit Juramentum Vide Emphyteosis and what the Lawyers say in such Cases where Write is necessary Protections IF Persons cited to appear before the Justice or Council or imprisoned by order of the Justice or Council may be taken or arrested upon Caption or otherwise for a Civil Debt though they have not Protections Provision in favours of Bairns IT was provided by Contract of Marriage that the Conquest should be employed upon Rights to the Husband and Wife in Conjunct Fee and to the Bairns of the Marriage in Fee Quaeritur If the Husband having acquired a considerable Estate may he advantage his Heir or any other of the Children and give a greater Proportion to them than the rest Or will the Conquest belong to all equally Ratio Dubitandi It were hard that the Father should not have power to divide his Estate amongst his Children and in Consideration of it to oblige them to be dutyful On the other part the provision being in favours of the Children which is nomen collectivum universale indefinitum aequipollet universali 2do If that Power were allowed to a Father it may be abused and intending to marry again he may deal with one of his Children and giving more nor his Proportion he may by transaction settle all the Conquest on him and take a great part of it back from him in prejudice of the other Children 3tio By that Provision there is a Legitime settled upon the Children and as the Father cannot prejudge them of that which is given them by Law but the Bairns-part must divide equally so he cannot prejudge them of that Bairns-part provided by Contract unless by the same the Father had that arbitrium and Power given to him as sometimes it is Provision in Bonds A Bond of provision being granted by a Brother to a Sister for a Sum to be payed to her at the next Term after the Bond without mention of Heirs or Assigneys but with a Provision that if she should decease unmarried it should return to the Granter and his Heirs Quaeritur If she having assigned the Bond the Assigneys will have Right albeit she deceased unmarried And what the import of the said provision is whether a Substitution or a Quality of the Fee and a fidei commissum that she should not assign but with the burden of it Ancrum younger contra Mangertoun Provisions in Charters IF Lands be disponed to be holden of the Disponer with a Provision that if the Vassal be year and day at the Horn his Liferent shall not pertain to the Disponer but now as then and then as now shall be given and belong to himself Quaeritur Quid Juris Ratio Dubitandi Dolus futurus non potest remitti and being pactum contra legem
Right be loused and extinct by a Decreet equivalent to a Reduction yet the Redeemer must be reseased After Redemption What way should the Redeemer be reseased Whether upon the Resignation of the Party infeft upon the Wadset Or what other Way Answer Wadsets were of old granted upon Reversions not contained in the Body of the Right and then the Disponer was in use to get a Regress whereupon the Superior did re-enter him but now the Reversion being in the Body of the Right the Disponer is in the same case as if he had a Regress and should be infeft in the same manner The Wadsetter being denuded by the Decreet he has no Right in his Person to resign and therefore it is thought that the same course should be taken both in the case of Redemption and Reductions as formerly when Regresses were in use Reduction Ex capite Fraudis IF a Reduction be pursued of the Right as Fraudulent may not the Defender alledge that the Disponer had Bona either Movables or others equivalent to the Debt which may satisfy the same and offer to satisfy the Pursuer upon an Assignation of the Debt due to him to the effect he may have Recourse against the said other Estate of his Author Answer It is thought the saids Defences would be relevant and Assignations could not be denyed Infeftment after Reduction A Person having disponed Lands and resigned and being so divested by Charter and Seasine If he should thereafter reduce the said Right Quaeritur what way he shall be reseased Seing the Right was not Jus Nullum sed Annullandum and the Seasine and Resignation that divests is Factum quod non potest fieri infectum Reduction Ex capite Metus QVaeritur If Rights being made dolo vel metu and upon these Heads or Ex capite Lecti being reduceible and such Actions being in rem a singular Successor acquireing a Right from the person lyable to such actions will he be in the same case as Persons acquireing from Confidents Ratio Dubitandi Acts of Parliament are stricti Juris and cannot be extended Reduction upon Minority IF Interlocutors in Jure against Minors may be reduced ex capite Minoris aetatis and Laesion Answer Negative Seing Minors cannot be restored but where either there is captio by the deed of another to their prejudice or by their own deed through their Facility or where there is an omission of Defences But where Defences are not omitted and being proponed and advised are repelled as not relevant The Interlocutor which is a Deed of the Judge cannot be reduced but upon iniquity Reduction Ex capite Lecti A Father having acquired a Right to his Eldest Son of certain Lands reserving his own Liferent and a Power to dispone etiam in articulo mortis And thereafter having on Deathbed made use of the said Faculty and disponed the said Lands to a second Son Quaeritur If the said Right may be questioned by Reduction Ex capite lecti as being made in prejudice of the Heir Ratio Dubitandi That the said Disponer could not do any Deed then in prejudice of his Heir And on the other part that the eldest Son having accepted the said Right with the said Provision cannot question the same 2do The Heir is not in this case to be considered as Heir but as quilibet Seing he is not in the case of an Heir succeding in a Right as Heir seing the Right was not in the Person of his Father and he himself was Fiar with the quality forsaid 3tio The Law of the Majesty is only in the case of Rights granted to a Person and his Heirs simply and the reason of the Law is express that the Defunct when he was in health having had no thought to dispose of his Heretage when he grants Rights on Deathbed of the same is presumed to have been imposed upon or that the said Rights on Deathbed were Elicite or granted by him in Delirio fervore passionis instantis Whereas the said Faculty being reserved in the Right argues the Fathers intention ab initio if he should think fit even then etiam in articulo being sedati animi Nevertheless the said Right was reduced Davison contra Davison November 1687. Re-entry after Redemption IF Wadset Lands be holden of the Superior and the Reversion be contained in the Charter If the said Reversion be not equivalent to a Regress in respect of the Superiors consent to the same And what way the Vassal may be entered upon the Redemption especially if the Creditor be dead and his appearand Heir will not grant a Renunciation and cannot resigne Answer The Superior may be urged to grant a Charter making mention of the Wadset Redemption and Declarator and by Law that he is lyable to re-enter the Vassal having redeemed Regalia MAjora Regalia cohaerere dicuntur Imperatoris ossibus ut ab eo avelli nequeant Imperator alios sibi assumere potest in partem Solicitudinis non vero in plenitudinem Potestatis quae omnem respuit Divisionem quasi Sanctum Sanctorum est in quod nemo admittitur nisi Princeps Bes Thes in Litera K. 3. verbo Kayserliche P. 450. Integra Territoria seu Provinciae Ducatus Principatus Comitatus c. cum Jurisdictione territoriali in feudum Statibus Imperii Ducibus Principibus Comitibus Civitatibus Imperialibus conceduntur cujusmodi feuda Imperii immediata omnia regalia Jura Emolumenta eo spectantia continent Frit Jus Fluviat P. 106. n 3. Regalia non sunt Res sed Jura Regi aut alii Superiorem non recognoscenti in signum supremae potestatis necnon in praemium immensi laboris quem pro Imperio Regimine sustinent ad Rempublicam tuendam competentia Heringius de Molendinis q. 9. n 47. sequen Regality IF Rights of Regality imply and import a Right to Escheats upon Horning albeit they be not express thereanent Ratio Dubitandi It is the common Opinion that they are imported Ex adverso Gifts of Escheat upon Rebellion are inter maxima regalia and Rights of the same are stricti Juris 2do All Letters of Horning bear That the Rebels Goods should be escheat and brought in for His Majesties use 3tio Regalities being Priviledges of Jurisdiction and Exemption from the ordinary Courts of Shires and Justices carry only such Escheats as are incident to Jurisdiction as Mulcts and Fines of persons unlawed or sentenced in Courts of Regality 4to Declarator of Escheats cannot be pursued before Regality-Courts but only before the Session 5to In other Cases of Escheats upon account of Crimes or Delicta as for Theft Slaughter the Crime is not against the King directly but consequentially as concerned in the Loss of a Subject But Rebellion on Horning is directly against the King It will be fitt to see the Right of an Ancient Regality Suppose that the Lord of Regality has Right to the Escheat upon Horning will he have Right only to
such Movables as are within his oun Territory Or to all the Rebel his Movables even such as are within the Regalities of others If a Right of Regality may be granted not only for Lands holden of the King but for such as hold of other Superiors Ratio Dubitandi That the King being the Fountain of all Jurisdiction in whatsomever Lands or Bounds whether they hold immediatly of himself or not may delegate and give thar Jurisdiction to whom he pleases whether the Lands hold of himself or not And on the other part the said Jurisdiction being annexed to the Lands and given intuitu of the same it is hard that a Vassal should be above his Superior and his Superior being it may be Baron a Right of a Barony-Jurisdiction cannot be given in eadem Baronia and farr less of a higher Jurisdiction And no Right can be given to a Vassal in relation to his Lands but such as would pertain to his Superior if the the Lands come in his hands by Non-entry or otherwise And the Right of Regality which did never pertain to the Superior himself cannot come in his hands by Non-entry or otherwise Writs registrate that cannot be found in the Register IF it be Evident that a Writ was put in the Register and yet cannot be found neither Principal nor Booked What Remedy Registratio APud nos Instrumenta aut Literae Registrari dicuntur cum referuntur in Regestum sive Librum publicorum vel actorum vel monumentorum Registratio autem celebratur duobus modis ad diversos fines effectus Ubi enim Instrumentum sive simples 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 obligatio scilicet aut Chirographum aut Dispositio aut 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 contractus scilicet inter duos aut plures in librum actorum refertur plaerumque fit ut vim instar sententiae obtineat executionem paratam virtute claulae Executivae Registrationis ut vocant in omnibus fere instrumentis solennibus istis aut similibus verbis viz. Et pro majori securitate nos ii scilicet qui obligantur volumus consentimus ut praesens Instrumentum inseratur Registretur in Libris Supremae aut inferioris Curiae competentis ut ita nanciscatur vim sententiae Dictorum Judicum ut Literae Denunciationis Cornuationis ut practici loquuntur continentes spatium sex dierum alia necessaria ut par est pro ea exsequenda Dirigantur constituimus _____ aut eorum quemlibet Procuratores nostros ad effectum praedictum Sic sine lite processu ad ultimam processus metam exitum devenitur sententiam scilicet Executionem omnimodam fictione enim brevis manus omnia ad processum sententiam requisita quodammodo insunt vice enim Citationis quae supervacua est ubi partes praesto sunt consentiunt procurator etiam Rei intervenit dicis causa consentit Judex etiam secundum Instrumenta exhibita per procuratorem eoque postulante ut juxta Clausulam praedictam ad effectum praedictum in Regestum referantur decernit actuarius etiam Clericus Curiae decretum seu Extractum expedit Illud autem tribus partibus constat 1mo Enim praemittitur decretum eâque sequitur formâ Edinburgi _____ die Mensis _____ 16 _____ Coram Dominis Concilii Sessionis comparuit T. W. Advocatus procurator pro D. P. W. Obligato in Chirographo infra scripto exhibuit dictum Chirographum petiitque illud inseri Registrari in Libris Concilii Sessionis ut vim sententiae dictorum Dominorum obtineret ei interponendam qua literae Cornuationis aliae necessariae desuper dirigantur modo inibi specificato quam postulationem dicti Domini Rationi consonam Judicarunt ideoque ordinavere ordinant Dictum Chirographum inseri Registrari in libris dictae curiae decrevere illud obtinere vim sententiae ipsorum Literas Cornuationis alias necessarias inde dirigi modo infra-scripto 2do Subjungitur Tenor ipsius Chirographi 3tio Sequitur Clausula ista viz. Extractum de libro actorum per me viz. Vel Dominum Rotulorum Clericum Registri vel ejus Deputatum Clericum qui subscribit nomen suum Instrumento autem Registrato autographum seu originale a Clerico retinetur in publica custodia Exemplari ut superius diximus Extracto Creditori dato ex quo executio sequitur tam realis quam in personam nec absimile est illud Extractum Instrumento Guarentigiato cujus saepe mentio habetur tam apud Jurisconsultos quam Practicos ex eo enim non minus quam ex sententia solenni Executio parata est Caeterum omnis definitio in Jure periculosa est Juris remedia etiam optima interdum remedio indigere videntur nec Registrationis saluberrimo instituto suum deesse videtur incommodum Instrumenta enim cum in publica custodia sint Incuria Clericorum aut servorum fraude facile intercidunt aut subtrahuntur ea autem perdita esse subodorati debitores aut eorum haeredes actione Falsi eam Improbationem dicimus intentata saepe liberantur nulla Judicis sed summa actoris reapse injustitia In causa enim Falsi agitur ut exhibeatur Instrumentum de quo quaestio est ea in libello comminatione seu ut practici loquuntur Certificatione nisi exhibeatur irritum fore nec ullam ejus Rationem aut fidem habendam esse in Judicio vel extra Judicium In ista autem causa Falsi haud satisfacit Exhibitio exemplaris rite Extracti nec immerito sine ratione Instrumentum enim ipsum multa fortasse sufficeret argumenta tam ad veritatem astruendam quam ad falsitatem arguendam ex comparatione Literarum Subscriptionibus Testium Partium alia plurima quae Extracto tantum exhibito desiderantur Hac Ratione impulsi nec provisis incommodis pluribus gravioribus ut omnis mutatio etiam in melius est periculosa Angli Judices tempore nuperae Usurpationis si fas est praedones perduelles Judices vocare in res novas semper prurientes annitentibus maxime Scotis qui eis assidere ut Collegae haud erubuerunt statuto sancierunt Instrumentum ipsum exhibendum quidem ut in acta referatur Creditori reddendum ut penes eum remaneret Registratio enim cum sit actus voluntariae Jurisdictionis quolibet tempore etiam feriarum explicatur non tantum extra Judicium sed nec ullo alio fundamento nititur nisi consensu partium clausula Registrationis in Instrumento ipso inserta Instrumento autem penes Creditorem remanente nec in custodia publica asservato sententia esset inanis sine ullo probationis adminiculo quod in actis sit Adhaec eadem majora sequerentur incommoda saepe enim non tantum ejus penes quem Instrumentum est sed aliorum interest ut servetur praediis forte haeredibus Taliae
And seing he is in dolo that he does not make use of it the Law doth justly provide that it may be comprised and used to that end which both in Law and Conscience he should have used for himself Et interest Reipublicae ut quis re sua bene utatur Legal Reversion competent to Idiots c. QVaeritur If a Fatuous Person or Idiot having Right to a Legal Reversion has the Benefit competent to a Minor to redeem after his recovery Answer It is thought not seing by our Law and Custom Minors before the Act of Parliament 1621. had not that benefit And by the said Act of Parliament it is given only to Minors Et Exceptio firmat Regulam c. And neither can Statutes be extended nor is there eadem Ratio seing the time of Minority is defined Whereas a Fatuous Person may live a very long time and it is hard that the Creditor should be in incerto all that time as to his Right and Dominium whether it be simple or redeemable Earl of Kincardin If Actions upon Contracts do prescribe against Fatuous Persons Answer They do not prescribe quia non valent agere and there is a Difference betwixt Prescription of Actions and of Legal and other limited Reversions which are only given for a certain time Because Jus Limitatum to a certain time producit limitatum effectum viz. A limited Action during the said time And it being just and the Compriser or Heretors Interest That the Reversion should be only limited and for the said time ne Dominium sit in incerto as said is he cannot be in worse case by Reason of the condition of the Party who has Right to the Reversion being Minor or Fatuous and in effect by a Reversion the Compriser or Heretors Right is Jus resolubile sub conditione potestativa and in such cases it cannot be pretended that the party could not satisfy the condition being Minor Fatuus Rights made by Dyvours QVaeritur Whereas by the Act of Parliament anent Dyvours Rights granted without an Onerous Cause in prejudice of Creditors are reduceible without Prejudice always of those who have acquired Rights from the Confident Person bona fide If the said Salvo should be extended to Comprysers Ratio Dubitandi That it appears hard that Creditors should be prejudged and be in worse case by the Fraud of their Debitor and their action being competent to them and nata immediatly after the fraudful Alienation should be taken away from them without their own Deed and yet the said Salvo being only in favours of Purchasers and favore Commercii and of these who bona fide contract with Persons that are not inhibited neither they nor their Authors should be excluded and Comprysers cannot plead the favour of Commerce seing they have not any Commerce nor Contract with a Confident Person but against their will use Execution against what they conceive doth belong to him which they do upon their own hazard and therefore ought not to be in better case than their Debitor and cannot have his Right but as he had it Et cum sua causa Fraudulent Rights in prejudice of Creditors A Debitor after expired Apprysings Dispones his Estate so incumbered by a Contract bearing an obligement that the Disponer should cause the Comprisers Dispone their Right or that it should be lawful to the Buyer to acquire them And after all should be purged the Buyer being obliged to pay the Sum thereinmentioned and accordingly having payed the same to the Seller Quaeritur If such a Transaction though it cannot be questioned upon that head that it is without a just price yet may be questioned upon the Act of Parliament as being without a necessary cause and of purpose to defraud Creditors who had not preferable Rights If a Person be in that condition that his Debt will exceed the value of his Estate and because his condition is not known and being a person of Credit he is not inhibited any confident friend knowing his condition if he should acquire a Right to his Estate in hail or in part for a price equivalent of purpose that he may have a Livelyhood Quaeritur if such a Right may be quarelled as fraudulent Ratio Dubitandi That it is for an Onerous cause And on the other part The Cause was not just nor necessary and it is presumed that the said course was taken in defraud of the Creditors Right a non habente potestatem THE King having Disponed Lands having fallen in his hands by Forefaulture and the Infeftment being past under the Great Seal the person to whom it was granted did decease before Seasin and thereafter another Donator procured a Right under the Great Seal and was Infeft thereupon Quaeritur If the second Gift may be questioned as being a non habente potestatem in respect the King was fully denuded in favours of the first Donator and nothing could be done more to denude him by himself and the taking of Seasin is not the Act of the King but of the Party And it could not be imputed to the Donator that he did not take Seasin being surprised by Death And double Rights are forbidden by the Law Rights ad Tractum futuri Temporis WHen a Tack or Annuity for certain years belongs to a person It does not belong to his Executors because it has Tractum futuri Temporis But if he have Right to it by the Escheat of another person it will belong to his Executors To consider what is the reason of the difference Right in Trust HIs Majesty having upon the Forefaulture of the Earl of Argyle given a part of the Estate to My Lord Lorn with the Title of Earl beside what he was Infeft in before And having given of Provision for the rest of the Children alse many Lands as would extend to the Rents alloted to them and having given out of the Estate a Liferent to the Lady Argyle and the rest of the Estate to the Creditors and having appointed the Lords of Session Commissioners for hearing the Creditors claims and determining the same and upon their competition for preference There is also a Right of the Estate settled upon Three Trustees to the longest liver of them Three without mention of Heirs and Assigneys being Three Clerks one of the Session one of the Council and one of the Exchequer to the uses foresaid and that the said Estate may be conveyed and alloted as His Majesty had Ordered Quaeritur If a Signature to the effect foresaid be habilis modus Answer It is thought not Seing there being no mention of Heirs the said Right granted to the Trustees if they should all Die will evanish albeit it be granted to them in Fee And therefore it is thought that the proper way were That a Commission only should be granted to the Trustees to Dispone to such persons as the Commissioners should appoint And as to Lands holden of the King Charters should be granted making mention of
to his Heirs and assigneys And thereafter having Disponed certain Lands for implement of the said Contract to the eldest Son he had then of the said Marriage which FailÈieing to his oun Heirs and Assigneys Quaeritur If the eldest Son and his forsaids will be lyable to all precedent Debts as Successor titulo lucrativo Ratio Dubitandi That he was only a Son of a third Marriage and his Father had Sones of a former Marriage Answer It is thought he will notwithstanding represent his Father In respect the said Right is for implement of the said Contract as said is and if the said Sum had been employed conforme to the Contract he would have represented his Father And by the said Right he represents him per praeceptionem And that he would be lyable suo ordine as Heir of the Marriage the Heir of Line being discust Quaeritur In the case foresaid if the said Son of the third Marriage will be lyable to Debts contracted after his Right by his Father Seeing his Father is obliged that he should succeed him in the Right of the sa d Sum And the Creditors ought not to be in worse case than if the said Sum had been employed and Successores titulo lucrativo are not lyable to posterior Debts when the Right granted to them is mera Donatio So that their Father was not obliged that they should succeed And the Father was a Merchant and continued his Trade thereafter and became Bankrupt vide Heirs Quest 3. in Litera H. If a Gentleman by his Son's Contract of Marriage dispone his Estate to him will he be lyable to all the Debts or only effeirand to the value of the Right An Uncle having Disponed to his Nephew his Lands or others being for the time his appearand Heir and having Died without Children Quaeritur whether he be lyable as Successor Titulo Lucrativo Ratio Dubitandi he was only presumptive Heir And the Uncle might have had Children if he had married again And upon the reason forsaid if the Lands had holden ward they would have recognized An Appearand Heir being Infeft in Liferent in Lands to which he might have succeeded Quaeritur whether he will be Successor Titulo lucrativo specially if the Liferent be settled upon him and the Fee upon his eldest Son Singular Successors QVaeritur If the Act of Parliament anent Registration of Seasins as to singular Successors should only be understood such as have acquired Right from the common Author and not Comprysers and such as succeed upon account of Forefaulture Sums heretable and movable Lands being Disponed by a Contract and the Buyer being obliged to pay the Price Quaeritur whether the Seller's Heirs or Executors will have Right to the said Price Ratio Dubitandi The Price cometh in Place of the Lands and the Heir will be obliged to denude himself of the Right of the Lands the Disponer's obligement being only prestable by his Heirs So that it seems the Heirs should have Right to the Price On the other part the quality of heretable or movable depends upon the arbitrium and Destination of the Creditor himself and it appears that the Disponer having sold his Lands for a Price he intended in lieu of an heretable Estate to have only a movable Estate in Money not to ly in the Buyers hands but to be employed as the Disponer should think fit either for Tradeing or otherwise So that the said sum should belong to his Executors Quaeritur If Sums consigned for Redemption of Land be of that same nature Ratio Dubitandi It appears there is a difference upon that consideration that a Person who has a Redeemable Right does not desire his Money and the Reversion is in Rem so that the Sums due thereupon appear to be heretable untill they be uplifted surrogatum sapit naturam surrogati Sums movable A Sum being due upon a Wadset with the ordinary clause that by the premonition and charge that should follow the Infeftment should not be loused untill payment Quaeritur If after Execution used the Sum becometh movable Ratio Dubitandi It is yet due upon Infeftment and it cannot be conceived that the Executors or Donator should have Right to the Infeftment being only in favours of the Heirs Eldest superior WHen Lands are holden Ward of diverse Superiors The eldest Superior and antiquior is preferrable as to Mariage Quaeritur the forsaid quality of antiquior whether it is to be considered in relation to the Vassal so that the superior that he did first hold of is to be thought antiquor Or if it be to be considered in relation to the feudum it self so that the feudum that was first constitute by a grant from the King to the Vassals authors should be thought antiquius Quid Juris If a Person be infeft as Heir to his Mother or her Father to be holden Ward and thereafter be infeft as Heir to his Father the Lands also holding Ward whether of the Superiors will have Right to the Marriage A Person being infeft in Lands holding Ward and thereafter being infeft upon a Comprysing in Lands holding of the King Quaeritur If the Marriage through his decease will fall to the King or the other Superior during the legal Ratio Dubitandi a Right by comprysing is only for security and Redeemable Superior mediat THe immediate Superior being found to have amitted his Superiority during Life because being charged he did not enter Quaeritur If the mediat may infeft upon Resignation being only Superior in that part and in subsidium that the Vassal should not have prejudice by his immediate Superiors nonentry but not ad alios effectus which may prejudge the immediate Superior and in special that by obtruding to him a singular Successor to be his Vassal That same question may be in the case of Ladies Liferenters and Conjunctfiars of Superiorities T. Tack A Tack being sett in April of certain Lands and Houses whereof some were possest for the time by the Tacksman by a verbal tack or Tolerance others sett to Tennants and the Tack bearing the Entry to be after separation from the ground in anno 1652. in which it was set Quaeritur A Compryser being publictly infeft befor separation if the Tack will not militate against a singular Successor the Entry being indebito tempore after the Setter was denuded Answer It appears that the Entry as to the commencement of the Tack was presently the time of the date Seing as to the Houses and some of the Lands the Tacksman was in natural possession and as to the grass of the Lands sett to a tennant the Entry though not exprest was at Whitesunday following and the entry mentioned in the Tack seemeth to be meant of the Tacks-mans Entry to Labour Interpretatio facienda ut actus valeat If at least the Tack should be invalid as to the Lands which were set to tennants as being not publick by possession Answer It is thought that a Tack being
Jus indivisibile possessio partis maketh it publick in Totum And it cannot be ex parte publick and ex parte non A Tack being set to a Tacks-woman during life and after to her Heirs until payment of certain Sums for Ten shillings yearly Quaeritur Will the Tack be void as without Ish Answer It appears that the Tack being set for security of Payment of the Money the Ish is not altogether uncertain Certum est enim quod fieri potest câ—rtum per relationem ad aliud and the Rent being One Thousand Pounds it may be considered in what time that Rent may satisfy the Sum mentioned in the Tack and upon the matter there is a Reversion to the setter and his Successors and they may determine the Ish of the Tack by payment of the Debt Lady Braid and her Son assigned the Tack whereof a Reduction was raised by Gorgymiln having bought the Lands Neither Servitudes nor Tacks do affect Lands in prejudice of singular Successors unless they be real by Possession Quaeritur If such Rights may be registrate in the Register of Reversions albeit the Act of Parliament doth not mention the same And if they be registrate if they will be real as Reversions Locatio conductio albeit they are not in Law inter Contractus qui re fiunt and by our Custom they are not effectual unless they be Re and cled with possession before which they are personal as to the Contracters and their Heirs but after that they become real Rights and bind singular Successors Quaeritur therefore if a Tack of Lands be set to a Person to enter at Whitsunday thereafter And thereafter another Tack be set to another Person before that Term so that neither can have Possession What way the second Tacksman may perfect his Right so that he may be preferred Answer It is thought he may make intimation of his Right to the present Tennent and require him to remove at the Term and protest for remeed of Law Quaeritur Why Tacks without Possession do not prejudge singular Successors and yet Tacks do prejudge beneficed Persons Answer Beneficed Persons are not singular Successors which properly are such as do acquire and purchase Whereas Prelats or Beneficed Persons are Successores Titulo Vniversali and are considered as singular Incorporations whose Deeds do bind their Successors When any Person is infeft in Teinds Quaeritur If he may set Tacks longer than during his Right in prejudice of the Buyers or other singular Successors A Tack being set to a Person for fifteen Years without mention of his Heirs or Executors Quaeritur Whether it be meerly personal Or at least the Heir if the Tacksman decease before expireing of the Tack should have Right during the time foresaid Answer It is thought that Tacks should be stricti Juris and there being no mention of Heirs the said limitation of time imports only that the Tacksman should have right if he should live all the said time and not after And in Tacks industria conditio Personae is to be considered if the Tennent be a substantious and vertuous Person whereas Heirs may be Infants and not succeed in the Conditions foresaid If a Tack be set by a Church-man to a Feuer and his Heirs succeeding to him in the right of the Feu if the Teinds of the feued Lands may be assigned there being no mention of Assigneys 2. If it may be Comprysed 3. If it cannot be assigned Will the Tack fall by the Assignation Tack of the Teinds of Paikie Back-Tacks and Prorogations WHat is the Reason that in Wadsets Back-tacks are valid without a definite Ish viz. During not Redemption Item In Prorogations Tacks of Teinds to begin after the Ish of the former though the Titular be denuded in the interim Answer In Wadsets the Back-tack is in corpore Juris and the Wadset is with the burden thereof the Wadset and Backtack being correspective Rights So that who succeeds in the Right of the Wadset can have it no otherwise than cum causa As to Prorogations they are granted in rem and by the authority of the Judge Tack of Teinds A Tack of Teinds being set to a Person and his Heirs and Assigneys for his Lifetime and four nineteen Years after Quaeritur If he be year and day at the Horn will the same fall under his Liferent Escheat only as to His Liferent or entirely If after his decease it would fall under the Liferent or under the single Escheat of his Heir If it be for many nineteen years exceeding the longest Life of any man Will it fall notwithstanding under a single Escheat seing there is not a formal Liferent constitute If a Tack for many nineteen years should be assigned will the same fall under the single escheat of the assigney seing there is no liferent as to him and the liferenters may all die in his lifetime Will not the Assigney have Right for the lifetimes of the Heirs though they be not served Heirs The Tack being for three Lifetimes and certain nineteen Years after Quid Juris Where the Tacksman has no Heirs so that there is place to a Gift of Bastardy or ultimus haeres Tacks of Lands being real by the Act of Parliament in favours of Tennents Quaeritur Quid Juris As to Tacks of Teinds TailÈies WHen a person having acquired Lands provides the same to his Heirs Male Quaeritur Whether the Maxime viz. Haereditas descendit Conquestus ascendit has place in TailÈies If a Tutor Intrometting with the Duties of Lands Entailed to the Heirs Male may not employ the same upon security to the Pupil and his Heirs Male upon pretence that it should be presumed that it was in the Parents intention as appears by the Entail Answer It is affirmed that it was so decided in the case of the Heirs of Cockburns-path which we have not seen But it is thought that a TailÈie being Institutio Haeredis as a Tutor could not make a Testament for his Pupil nor name an Heir and Executor for his Pupil so he could not make a TailÈie either in Land or Money There being a TailÈie in these terms that it should not be lawful to break the same and the Fee having descended to a Woman by vertue thereof who did notwithstanding resign the Fee in favours of the Husband and the Heirs of the Marriage which FailÈieing to the other Heirs of the former TailÈie and thereafter the said Heir of TailÈie having obtained a Decreet of Reduction of the said Right Ex capite Minoritatis for eviteing the hazard of the Clause irritant in the first TailÈie albeit the Right granted to her Husband was ratified in Parliament with the clause that the Ratification should not be Lyable to the Act Salvo Jure Quaeritur If the Husband be Forefaulted and his Posterity disabled if the Heirs of TailÈie having Right to succeed after the Wife and her Children may be prejudged by that Forefaulture Answer It is thought not
ordinary Clauses irritant for preserving of Families and with that in special to be added that it should not be lawful to any that should succeed to prejudge their Successors Delinquendo even by committing of Treason and if they be guilty of such Crimes that the Estate shall be Forfault as to themselves but not as to other Successors whether such a Clause will secure against Forefaulture Ratio Dubitandi That it would be an encouragement to Disloyalty 2do It is against the common Law pactis privatorum non derogatur Juri communi 3tio By the late Act of Parliament anent TailÈies it is provided that the King should not be prejudged as to Fines nor Confiscations nor Superiors of their Casualities On the other part it is thought there should be a difference betwixt these who by their vertue and purchase have founded a Family and these who succeeded in the Right of Estates acquired by Loyal and Virtuous Persons In the first case it is just that the person who has purchast and Entailed his Estate with such Clauses if he commit Treason should Forefault for himself and all his Successors In the other case it is hard that a person descended of an ancient and loyal Family should Fotefault an Estate not acquired by himself in prejudice of the Family and that the personal delinquence of one should weigh down the Merits of many Predecessors A Family being like a Ship out of which the Jonas that has raised the Storm should be cast and not the Ship and whole Family perish And upon the consideration foresaid it has been provided for the standing of Families even by Divine Law that it should not be in the power of one to Ruine the Family but the Successors Right should revive by the Jubile And by the Feudal Law in the begining Feuda were not Haereditaria so as that the Heirs and Successors should be Forefaulted by the deed of their Predecessors And when Feuda came to be Haereditaria there were some that were ex pacto providentia so that the Succession was settled in such a manner that it could not be cut off by the deed or Forefaulture of any of the Descendents but as to their own interest And there are yet Entails elsewhere and in England of the nature foresaid as V. G. of the Lord Grayes Estate which was the occasion that not only the Family but himself was preserved It being thought fitter that his Liferent should be confiscat dureing his Life than by his Death his Estate should go presently to his Brother And as to that pretence that Disloyalty would be thereby encouraged it is of no moment seing qui suae vitae est prodigus will be prodigus as to all other interests And albeit by the common Law where there is no provision to the contrary Estates are Forefaulted as to all intents yet provisio hominis tollit provisionem legis and there is no Law nor Statute with us disabling the King to give Rights with such provisions as are consistent with and suitable to the Divine Law and even the Civil Law Fideicommissa being in effect Entails and the Laws of other Nations and of his other Kingdoms and the Brocard pactis privatorum c. doth militate most when the certain form and modus habilis is prescribed by Law for conveyances or Testaments which ought to be precisely kept and observed without Derogation In other cases Provisio hominis as said is tollit legem As by our Law a Relict has a Terce of Lands and a third of Moveables and Marriage being dissolved within Year and Day the Tocher ought to return and in case ward Lands or the major part be Disponed they are recognised and if a Feu-duty be not payed in the space of two Years the Feu may be reduced and yet as to these and many other cases derogatur Juri communi pactis privatorum And as to the Act of Parliament concerning TailÈies it doth militate only in the case of TailÈies with the ordinary Clauses irritant anent the contracting of Debts or doing other Deeds so that albeit by the said Clauses irritant the Debts or Deeds of the Contraveener are void as to TailÈied Estates yet Confiscations and Fines in favours of the King doe affect the Estate and it is not provided by the said Act of Parliament that it should not be lawful for the King upon the considerations foresaid to grant a Right Entailed with the said Clause that the Estate should not be forefault in prejudice of the Entail and it cannot be said that the concession of a Prince qualifying his own Grant with such Provisions as he think fit is Pactum privatorum and seing other Superiors may so qualify the Infeftments and Rights granted by them to their Vassals that the Vassal should not forefault his Lands for Feudal Crimes for selling the Lands holden Ward without the Superiors consent or for being behind in payment of Feu-duties it is against Law and Reason to deny that power to the King to qualifie the Vassalls Right so that when Lands otherways would Forfault they should not Forfault in prejudice of the Family and Successors The Lands of Artloch being by Alexander Keith of Artloch Heretor thereof TailÈied to himself and the Heirs Male of his Body which failÈieing to the Heirs Female of his Body without division which FailÈieing to his Sister c. And having secured the TailÈie by Provision that it should not be in the power of any of the Heirs to alter the samen with Clauses irritant and resolutive whereby the controveening of the Terms of the TailÈie are declared to be a ground of amitting the Estate and devolving thereof upon the next Member of the TailÈie All which Clauses are insert in the Bond of TailÈie Charter and Instrument of Seasin following thereupon Anna Keith being the only Heir of the Marriage and so Heretrix of the Lands she by Contract of Marriage with John Forbes of Assure is obliged to resign and provide the saids Lands of Artloch to him and her in Conjunct-Fee and Liferent and to the Heirs-Male to be procreat betwixt them which failÈiening to the Heirs-Male of her Body which failÈiening to the Eldest Heir Female to be procreat betwixt them which failÈiening to the Eldest Heir Female of her Body which failÈiening to him and the Heirs Male of his Body which failÈiening to the Eldest Heir Female of his Body Which failÈiening to him and his Heirs and Assigneys whatsomever 1. Quaeritur Who is Fiar by the Conception of the TailÈie whether the Wife because she having been formerly Fiar the TailÈie was made upon her Resignation and so the Heirs of the Marriage must in dubio be Heirs to her Or whether the Husband by the Prerogative of the Sex and by the last termination of the TailÈie which resolves on his Heirs ut supra will be Fiar Or if the foresaid destination whereby the Wifes Heirs-Male or Female are preferred to the Husbands in all
indirect way is taken away vide Transumpts Quaest 1. hujus Literae Terce A Person having disponed Lands bona fide but being prevented by death before the Buyer was Infeft Quaeritur Whether the Relict will have right to a Terce Ratio Dubitandi The Relict has a Terce of all Lands wherein her Husband died infeft and is not lyable to personal Creditors On the other Part it seemeth against Reason That the Husband having bona fide disponed and the Heir being lyable for the Implement the Relict should be in better case than the Heir who has no part and that the Relict should have only Right to a Terce of Lands undisponed and that there is a difference betwixt a Disposition and other Personal Debts seing a Disposition is Jus ad Rem which cannot be said of other Obligements And these Words That she should have Terce of all wherein the Husband died infeft ought to be understood Civiliter Viz. undisponed Quaeritur If Lands be redeemable Will the Relict Tercer have any part of the Money whereupon the Lands are redeemed specially when the Husband died infeft upon a Compriseing Ratio Dubitandi The Law gives unto Relicts only a Terce of Lands and not of Sums of Money and there is a difference betwixt a Tercer and a Liferenter who is provided to a Liferent of Lands under Wadset A Person being obliged for a most onerous cause to dispone his Lands and deceasing before Infeftment or Resignation Quaeritur If his Relict will have a Terce notwithstanding of the Disposition Ratio Dubitandi That it is hard the Relict should be in better case than the Fiar and Heir from whom the Lands may be evicted by a pursuit for implement And though the Husband died Infeft his Right was resolubile and such as might have been evicted from him 2do A Reversion is but pactum de retrovendendo and in this case there is a full Vendition and yet an order may be used upon a Reversion which will either prevent the Terce or extinguish it Quaeritur If a Reversion though not Registrate will militate against the Relict to prevent her Terce or to Redeem Ratio Dubitandi She is not to be considered as a singular Successor but as having a Right by virtue of and as depending upon her Husbands Right yet standing in his Person whereas he is denuded in favours of a singular Successor It is Indubii Juris That the Husbands Debts that are only personal do not prejudge a Relict of her Terce But Quaeritur whether a Comprysing before her Husbands decease will militate against her And if as to this point there be a Difference betwixt a comprysing whereupon the Superior is charged and whereupon there is no charge Quaeritur If a Disposition whereupon there is Resignation will prejudge a Terce Lands being Wadset for a certain Sum Quaeritur If the Relict of the Creditor will have a Terce both of the Lands and in case of Redemption of the Sum of money If a Wadset be to a Husband only and after his Decease to his Wife And an order be used and declared Quaeritur If she will get a Terce of the money And in that case whether the Executors will not only have Right to the two parts but to the third part of the Sums consigned with the burden of the Relicts Liferent Cogitandum A Lady by her Contract of Marriage being provided to a Liferent and infeft base in satisfaction of her Terce and what else she may pretend Quaeritur If the Superior questioning her Right as base she may have recourse to a Terce as renounced in behalf of the Husband and not of the Superior and the Renunciation being causa data intuitu of her Liferent he cannot debar her from the same and take any advantage by the said Renunciation The Lady Ballencreiff Quid Juris as to a Tercer being Liferenter of a third part Answer The difference betwixt the Liferent and Terce is That the Liferenters Right is anterior and certain but the Terce is posterior and uncertain So that the Fiar may sell the Lands in which case there would be no Terce vide Liferenter qu vltima Territorium TErritorium est universitas agrorum Jurisdictione munita Jus Fluviat p 42. num 513. Testament IF a Testament may be Holograph If a Movable debt be due to an English Man who is deceast must it be confirmed in Scotland è Contra If a Nuncupative Testament in England will have Right to a Debt due in Scotland Ratio Dubitandi it is valid in England mobilia non habent situm sequuntur personam on the other part corpora mobilia nomina though they have not situm as Lands yet they have it so far as being res Scoticae they cannot be transmitted but according to the Law of Scotland Law being rerum Domina Quid Juris if it be offered to be proven by the oath of the nearest of kin that the Defunct did before him and other witnesses above exception Name the pursuer his Executor and universal Legatar will a nuncupative Testament so proven be sustained Answer It is thought it will not Seeing nuncupative Testaments are not in our Law admitted And it is de forma that they should be in Scriptis Quaeritur If a Testament may be sustained by way of Instrument Answer an Instrument under a Notars hand being but the assertion of a Notar is not considered as Scriptum which requires the Subscription of the party himself or in subsidium by Notars before Witnesses de ejus mandato Quaeritur If one Notar subscribing for the Testator be sufficient in Testaments Answer Affirmative in respect of the great favour of last wills and oftentimes there is not copia Notariorum Ministers by Act of Parliament cannot be Notars but in the case of Testaments Quaeritur If eo ipso that they are Ministers they may be Notars in Testaments Or if they must be admitted Notars Answer Cogitandum Quae Ratio That a Testament made in France or Holland according to the custom there which is different from ours should be sustained in Scotland as to any Scots interest falling under the same If a Minor having Curators may dispose of his Estate by Testament without the Curators consent A Minor of thirteen Years or there about having made a Testament and named the person with whom he was boarded and bred in Family his Executor and universal Legatar without the knowledge or consent of any of his Friends Quaeritur whether the said Testament may be questioned upon Circumvention without qualifying any other circumstance but that it is Dolus in re ipsa to elicite from a person of that Age a Right to all his Moveable Estate in defraud of his friends Answer It is Casus arbitrarius and much will depend upon circumstances if the Defunct had no Relation to the Executor and if the Executor did suggest that the Defunct should make a Testament and employed the Writer and did inform the
delictum If Marriage be real and affects in prejudice of singular Successors Ratio Dubitandi Hope is for the Affirmative and alledgeth Decisions To consider Haltons case On the other part in Novodamuses amongst incumberances that affect there is no mention of Marriage 2do The Marriage respecteth not the Lands but the person and his other Estate as to the value 3tio It may appear to be a personal Prestation whereto the person and his Right dureing his and his Heirs time is Lyable but doth not affect a singular Successor as in the case of Ward A Vassal of Lands holden Ward of the King did Feu the same before the Year 1633. when it was lawful to Feu Lands holden Ward of the King and when the said Feu was granted the Disponer did grant a general Discharge of the Feu-duty except dureing the Ward and for securing the Feuer having bought the saids Lands as optima maxima at alse high a price as if the Lands had holden otherwayes that he and his Successors should not be Lyable to the Feu-duty during the Ward the Disponer was obliged to Infeft the Feuer in an Annualrent out of other Lands equivalent to the Feu-duty suspending always the effect of the said Right except during the Ward Quaeritur 1mo If the said general Discharge with an obligement to grant particular Discharges when required will militate against singular Successors being in rem Answer Cogitandum But it is thought that it will not unless the same were by way of Provision in the Charter and Seasin When Ward Lands were Feued which did hold of the King before the Year 1633. The Feuer during the Ward was only Lyable to the Feu-duty by the old Act of Parliament allowing the Feuing of such Lands but there is no mention of the Marriage in the said Act of Parliament Quaeritur therefore Whether the Marriage of the Disponer and his Successors will affect such Feues It is Answered That it is thought not seing the setting of Feus being allowed it appears that Feuers should be only Lyable to the Feu-duty The Feuer having ever possest since the granting of the said Right mentioned in the Querie abovewritten except one but not being Infeft upon the said obligement to Infeft in an Annualrent for relief of the Feu-duty Quaeritur If the Feuer should pursue upon the said obligement if it may be obtruded that it is prescribed Ratio Dubitandi That the said obligement is a part of the Feuers Right and the Feuer has been in possession by vertue of his Right all the time and if the Feuer had not been Infeft upon the Feu-Charter and had been in possession by the space of Fourty Years and after the expireing of the same should pursue the Disponer and his Representatives to grant a new Charter with a Precept to Infeft it could not be pretended that the said Right was prescribed If Lands holden Ward of the King be Feued after the Year 1633. and the King should question the said Feu as null being contrar to the Act of Parliament Quaeritur If Prescription may be alledged and obtruded against the King Ratio Dubitandi That the Right is null ab initio and cannot be a warrand and ground of Prescription Et quod nullum est nullum sortitur Juris effectum A Vassal of Ward Lands holden of the King having Feued the same conform to the Act of Parliament warranting such Feus Quaritur If the Vassal be Forefault whether such Feus will fall under the Forefaulture if they be not confirmed Or if the Act of Parliament warranting such Feus be equivalent to a confirmation Answer It is thought the King for himself and his Successors by the said Act did consent to all Feus that are to be granted by vertue thereof So that the same is equivalent to a Confirmation Marques of Huntlie Taxt Ward A Gift being granted of Wards simple or Taxt falling within a certain time Quaeritur if the Donator will have Right to the Taxt Ward for Terms thereafter Answer He will have Right to the same if the Taxt Ward has fallen within the said time as the whole time of the Ward seing Ward is to be considered as Jus integrum and Dies cedit when ever it falls albeit non venit Warrandice A Bond being Assigned with absolute Warrandice Quaeritur What is the import of the said Warrandice And if the Cedent should be Lyable if the Debitor be or should become Insolvent Answer It will import only that the Debt is true and due by a valide Bond but not that the Cedent should be obliged to warrand the condition of the Debitor the Law being express to that purpose that he should warrand deberi but not Debitorem locupletum esse As was found in the case of Mr. Robert Barclay Quid Juris If the Warrandice be in these Terms that the Debitor is Locuples and he be truely so for the time but he becomes Insolvent Cogitandum Infeftment of Warrandice IF an Infeftment of Warrandice being only base will be construed to be publick by Possession by reason of the Possession of the Principal Lands Dunglas Waste WAste being committed by a Liferenter or Wadsetter and the Heretor deceasing or disponing the Lands whether will the Action for the same be competent to the Heir of the Heretor or to his Executors or Singular Successors Answer It is thought it will belong to the Heir or Singular Successor being Actio in Rem And so it is by the English Law Witnesses Remitted THE necessary Qualification of a Witness being Honesty and Integrity which though presumed in all Persons yet cannot be thought to have been in these who by sentence on their own Confession are evidently Criminosi and guilty of the highest Crimes It would seem that a Remission may Free as to punishment and may Repone as to all other capacities and as to the Kings own Interest But not as to that which in behalf of the People requires Integrity And the King by a Remission may free a Pain but not a Guilt and cannot repone to Innocency Witnesses in case of Treason THE Law of the Majesty and the Statutes of King William Chap. 11th Of these who are Infamous and the Statutes of Robert the 1st Cap. 34. of these who are repelled from Testimony are clear that Socii Criminis cannot be Witnesses and convicti redempti cannot be Witnesses Quaeritur therefore if a Person convict of Treason and Remitted that he may be Witness against others can be Witness Especially that Law bearing That conducti prece vel pretio cannot be Witnesses and there can be no greater pretium than a Mans Life Skin for Skin c. VVomen VVitnesses QVaeritur If Women Witnesses may be admitted in the case of Divorce to prove Adultery Answer This Question is under debate upon Advocation from the Commissars of Edinburgh having admitted the same And that they should not be admitted 1mo That by our Law Cap. 34. Stat. 2d Ro. 1st Women are
not starve and that his Grand-Father whom the Defender represents as Heir having provided him as said is to the foresaid Sum to be payed at the time foresaid did acknowledge that he was obliged to provide him being his Grand-Child and that until the time his provision should be payable he and his Heirs were lyable to his Entertainment being Debitum Naturale The Lords this day did Demurre And the case being of consequence as to the preparative thought fit it should be further thought upon D. 3. Ferguson contra More Eodem die IN the case Ferguson contra More the Lords Found That Compensation should not be granted against an Assigney upon a Debt of the cedent Assigned to the Suspender unless intimation had been made to the Cedent before the Chargers intimation of the Assignation made to him by the Cedent D. 4. Inter Eosdem eod die IN the same case two Persons being obliged Conjunctly and severaly as principal Debitors to pay a Tocher without a clause of relief pro rara It was found that de Jure inest D. 5. Pringle contra Cranston eod die IN the case Pringle of Greenknow contra Cranstoun Found that a subvassal being infeft by a Baron cum Curiis Bloodwitis may hold Courts and unlaw for Blood D. 6. Eleis contra Keith and Wiseheart 15. Decemb. 1665. IN the case betwixt Mr John Eleis and Mr Alexander Keith and Wiseheart It was Found That Elizabeth Keith Spouse to Mr William Wiseheart Minister at Leith having by Bond granted by her Husband and her obliged her self to pay to the said Mr. John the Sum of 6000. merks and for his further suretie to infeft him in certain Lands pertaining to her which bond contained a procuratory of resignation The said bond though null as to the obligement to pay the said Sum was valide as to the Right of the Lands And that the said Elizabeth having thereafter disponed the said Lands in defraud and prejudice of the said Mr John was lyable to the said Mr John and upon that ground The Lords found the said Mr John as Creditor to the said Elizabeth might question any fraudulent Rights made by her to his prejudice D. 7. Grants and Row contra Visc of Stormont eod die DAvid Viscount of Stormont having obtained a Decreet of Reduction against _____ Grants of their Right of certain Lands for not production _____ Grants and _____ Row did reduce the said Decreet against _____ now Viscont of Stormont upon production of the Rights called for in the first Decreet And in this Reduction The Lords did suffer and admit the said Viscount to insist in the said first Reduction he produceing the said David Viscount of Stormont his Right and instructing that he represents him Though the said first Process was not transferred in the Person of the said Viscount active and against the Pursuers of this Reduction passive and the summonds of Reduction whereupon the first Decreet proceeded was not produced Which The Lords allowed to be supplyed by production of the Decreet and a paper containing such reasons of Reduction as Stormont thought fit to give in And that in respect it was the fault of the Defenders in the first Reduction that the Writs were not then produced And they and these having Right from them being reponed it was just that Stormont and his Heirs should be likewise reponed D. 8. McLeod contra Young 19. Decemb. 1665. WAlter Young Harie Hope and _____ having Written to the Lord McDonald that they had commissionated _____ Donaldson to buy Cows for their use and that for such as should be bought from him they obliged themselves to pay all such Bills as should be drawn upon them and the said Donaldson having drawn a Bill upon the saids Persons and any of them Found that in respect they were partners and socii as to the bargain and the Lord McDonald had upon their letter trusted and sold the Cows to the said Donaldson they ought to be lyable in solidum conjunctly and severaly D. 9. Dickson contra Sandilands 21. Decemb. 1665. IN the case betwixt _____ Dickson of Killoch and Sandilands his Mother and her present Husband It was Found that a Husband being obliged by Contract of Marriage to provide the liferent of such Lands as he should acquire during the Marriage to his Wife in liferent and to the Heirs of the Marriage and his Heir being pursued for implement and for resigning certain Lands acquired by the Husband for a liferent to the Relict The Relict her liferent and Right should be with the burden of a Sum of Money borrowed by the Husband for making the said purchass as to the Annualrent of the said Debt during the Relicts Lifetime The Lords considered that though in order to other ends and effects and in special to determine the Succession in favours of an Heir of conquest whatever Lands are acquired by any person titulo singulari are esteemed Conquest yet in Contracts of Marriage such obligements anent conquest are to be understood of what is acquired by the Husband with his own means and Moneys seing what is acquired otherwayes the Price or a part of it being borrowed and the Husband being Debitor for the same upon the matter and in effect is not conquest and a free accession to the Husbands Estate in so far as the Price is a burden upon the Husbands Estate and as the Husband if he had been charged himself might have satisfied the obligement by giving an Infeftment with the foresaid burden so the Heir may do the same D. 10. Lepar contra Burnet 23. Decemb. 1665. IN the case betwixt Lepar and Dam Rachel Burnet and the Laird of Prestoun her present Husband these questions were agitated and decided 1. If a Husband get in Tocher with his Wife being an Heretrix more than an ordinary and competent Tocher which he might have gotten with another The Husband and his Heirs will be lyable after the Marriage is dissolved by the Wifes decease in quantum lucratus est for the Wifes Debt And the lucrum will be considered to be the benefit he has gotten above an ordinary Tocher 2. The Lords inclined to think That though a decreet of registration was obtained against the Wife and her Husband for his interest The Husband will not be lyable the Marriage and his interest ceasing And that an ordinary Tocher being ad sustinenda onera is not lucrum 3. Heirs portioners are lyable for their own part reserving action in case any of them become irresponsal and if the Creditor having done diligence cannot recover their parts he may have recourse against the rest 4. It was moved but not decided whether the others being non solvent The responsal Heir should be lyable for their proportion in solidum Or only for What he has gotten of the defuncts Estate D. 11. Bryand contra Grhame 3. January 1666. IN the case betwixt Mr Andrew Bryand and George Grhame The said George being constitute assigney to a
Bond granted by the said Bryaend to Thomas Iack And having charged thereupon The Suspender offered to improve the Bond and urged the charger to bide by the same which he was content to doe in these terms Viz. That he did abide by the said Bond as truely assigned and delivered to him by the cedent And that the cedent would compear and abide by the same as a true Bond. The Suspender answered that the cedent was lapsus and had come out of Prison upon a Bonorum and therefore he ought to find Caution to compear all the dyets of the Process The Lords found that the cedent should abide by the said Bond with certification that if he should not appear when the Lords should think fit for clearing the question anent the falsehood of the Bond by his oath or Examination the Bond should be declared to be void and to make no faith both as to cedent and assigney D. 12. Falconer contra E. of Kinghorn 4. January 1666. THe Laird of Drum as Principal and the Earl of Kinghorn and others as Cautioners being Debitors to Robert Falconar by a Bond granted in anno 1640 And the said Robert having pursued this Earle of Kinghorn as representing his Father upon the said Bond It was alledged the Bond was null as to the Earl of Kinghorn in respect there was no witness designed to his subscription And it being Replyed that two of the name of Lyon were subscribing witnesses and tho they were neither designed witness to Kinghorn his subscription but subscribed witness indefinite and albeit they were not otherwise designed as they ought to be conform to the Act of Parliament by their Dwelling or otherwise yet they were truely witnesses and the pursuer may and doth now design them and this Defender had no prejudice one of the witnesses being yet on life So that if he thought fit to improve the means and direct manner of Improbation was yet competent The Lords allowed the Pursuer to design which they would not have done if both the witnesses had been deceased D. 13. Lady Bute contra Sheriff of Bute 5. January 1666. THe Lady Bute Dam Grissel Campbel being Contracted and Proclaimed with Mr. James Grahame in the interim before her Marriage was induced and as she pretended forced to grant a Disposition and Discharge of a part of her Joynture in favours of her Son the Sherrif of Bute he having after the first Proclamation of their Bannes stopped any further proceding until he extorted the said deeds The Lords in a Reduction of the saids deeds at the instance of the Lady and her Husband found that post Sponsalia and Banna she was not sui juris and could doe no deed in prejudice either of her Husband or her self without his consent And that she was in the same condition as if she were Marryed And therefore the Lords found the reasons relevant for reduceing the saids Rights both as to her Husband and her self It was alledged that the Husband had consented in so far as after the saids deeds were done he knew the same and yet proceeded to Marry The Lords repelled the Alledgance D. 14. Oliphant contra Drummond 6. January 1666. IN a special Declarator at the instance of Sir James Drummond of Machany having Right by Assignation to the Escheat of the Lord Rollo and his Brother Sir John Rollo of Bannockburn from Walter Stuart Donatar to the same Sir Laurence Oliphant and Gavin Drummond Who were also Donators to the Escheat and liferent of the said Rebells and had recovered a general Declarator and had intented a special having compeared and desireing preference alledging that the pursuers gift was null and simulate in respect by the Act of Parliament 1592. cap. 149. Praesumptio juris de jure is introduced And it is statute that it shall be a relevant exception against any pretending Title by Assignation or Gift of Escheat of the Rebel to alledge that the Rebel his Wife and Bairns remained in possession and it was subsumed that the Pursuer and his Cedent had suffered the Rebel to continue in possession since the date of the Gift in Anno 1658. The Lords found that the Rebels having been in possession a considerable time by the space of five years or thereabout the Gift by the Act of Parliament is presumed to be simulate 2. That though the Donatar Walter Stuart was a Creditor it doth not alter the case Seing he might be and Law presumeth he was satisfied and Gifts being ordinarly affected with Back-bonds it was his fault that he was not satisfied And that he should not by his negligence and collusion prejudge other Creditors who would have Right after he had been satisfied 3. That the Pursuer having assigned his Right the assigney is in no better case utitur jure Authoris 4. That the reply that the Lands were comprysed is not relevant unless it were alledged that the Pursuer or his Cedent had done diligence to attain possession but was excluded by the compryser Jo. Hay Clerk D. 15. Brown contra Veatch and Scot. 9. January 1666. IN the case Broun contra Veatch and Scot It was found after contentious debate in Praesentia At the Barr and betwixt the Lords That an Infeftment of Warrandice base to be holden of the granter should be preferable to a publick Infeftment of property granted thereafter holden of the Superior and cled wih possession diverse years And that the possession of the Principal Lands should be interpreted the possession of the Warrandice Lands Some of the Lords were of another Iudgment upon these grounds 1. By the Act of Parliament Ja. 5. par 7. cap 150. Entituled provision and pains of them committand fraud in alienation and otherwise a publick Infeftment is preferable to a base not cled with possession though anterior And both the verba and Ratio Legis do militate in favours of the Heretor by a publick Infeftment The intention and end of the Law being to obviat fraud and prejudice by latent Infeftments And it being all one as to the interest and prejudice of the party who acquireth Lands whether the privat and latent Infeftment be a Right of property or Warrandice Seing an Infeftment of Warrandice when the principal Lands are evicted becometh an Infeftment of Property 2. The Act of Parliament foresaid of K. Ja. 5th is not taken away by the Act of Parliament K. James 6. Par. 17. anent Registration of Seasins in respect an Infeftment of property being base though Registrate and Anterior will be null in prejudice of a party who has acquired a Right by a posterior publick Infeftment And both the saids Acts of Parliament being remedia quae tendunt ad eundem finem though the hazard be not so great as to the prejudice by latent and private Infeftments since the Act of Parliament anent Registration of Seasins The said Act of Parliament 1617. doth not derogate to the Act of Parliament K. Ja. 5. 3. As to
to delay the Examination of the Witnesses until further diligence should be done to bring here the Messenger Me Refragante but ordained Colin to pay the expences And if it had been desired that if the Witnesses should die they should be holden as improving The Lords would have granted the desire D. 43. Carse contra Carse 8. Novemb. 1666. DOctor Carse having taken a Right of Annualrent out of Sir David Cuninghams Lands in the name and persons of Mark Carse of Cockpen and Adam Watt Writer and a comprysing thereafter deduced in their name to the behoof of the Doctor for some arrears of the said Annualrent not only out of the Lands out of which the Annualrent was due holding blench or feu but of other Lands holding Ward Charles Carse Son and Heir to the said Doctor pursued the said Mark Carse and the Heir of Adam Watt to denude themselves of the Right of the saids Lands conform to a Backbond granted by the said Mark Carse and the said Adam Watt declaring the trust In that trust it was alledged for the Defenders that they were content to denude themselves they being releeved of all hazard they might incur upon occasion of the said Trust and having that Right in their Person and to that purpose did offer a Disposition bearing a provision that the Right should be burdened with the relief of Wards Marriages and Ministers Stipends Cess and other such hazards It was Answered that the said Disposition ought not to be clogged with such a provision which would fright Buyers from purchasing the saids Lands and the pursuer was necessitat and had presently an occasion to sell the saids Lands And as to the incumberances and hazards which the Defenders should condescend upon they should be purged But as to the Marriage of Adam Watts Heir which was condescended upon there could be no hazard upon that account In respect the comprysing at the instance of Mark Carse and Adam Watt was the fourth comprysing which did only import a Right of reversion The first comprysing whereupon Infeftment had followed carrying the Right of property It was Duplyed that if it should appear that the former apprysings are either null or informal or satisfied the fourth Apprysing would carry the Right of property and consequently the Marriage The Lords Found that the Pursuer should accept the Disposition with the burden of the said relief Or in his option should secure the Defenders by a Bond with a Cautioner to releive them D. 44. Bowie contra Hamilton 10. Novemb. 1666. HAmilton of Silvertounhill having Disponed to James Bowie certain Lands whereto he had Right by Comprysing and the said James being removed at the instance of a Wadsetter and having Pursued upon the Warrandice contained in the Disposition It was alledged by Silvertounhill that though the Disposition did bear absolute Warrandice yet by a Margine subcribed it was restricted to warrand only the formality of the Comprysing and the truth of the Debt and the Executions It was Answered that the Warrandice being absolute in the Body of the Disposition was indeed qualified by the Margine that it should only be extended to the Warrandice of the Lands in so far as concerns the Apprysing and Sums thereinmentioned which are the words of the Margine and that the said Warrandice imports that the Disponer should not warrand simply but as to the Sums contained in the Comprysing so that in case of eviction Silvertounhill should only refound the same and the Pursuer was content to restrict the Warrandice to the Sums payed by him It was urged that there being Three kinds of Warrandice viz. Either absolute or only that the Comprysing was formal and the Debt just or a restricted Warrandice to refound the price in case of eviction the Last was Medium inter extrema and most equitable and in obscuris magis aequa interpretatio est contra Disponentem facienda qui potuit Legem apertius dicere And if it had been intended that he should warrand only the formality and validity of the Comprysing and reality of the Debt it had been so exprest Yet The Lords by plurality of Voices Found that the Warrandice should be interpret to warrand only the validity of the Comprysing and the reality of the Debt That being the most ordinary in Rights of Comprysing Sinclar alteri Harper D. 45. Cheine contra Christie 15. Novemb. 1666. GEorge Cheine Pursued Adjudication against David Christie of a Right of Annualrent which pretained to James Christie the said Davids Brother the Pursuer's Debitor James Cheislie Writer compeared and alledged he had Right to the Lands craved to be adjudged by an expired Comprysing of the property of the same against the said David Christie who had Right to the saids Lands and that the said James his Right of Annualrent was null being base and never cled with Possession The Lords Found that the alledgance was not competent hoc loco against the Adjudication and that the said debate would only be competent after the Adjudication when he should pursue a poynding of the ground The Lords Found the contrare before in an Adjudication Pursued by Sornbeg contra the Lord Forrester which practique was obtruded and not respected Because the Lord Forresters Right in that Case was clear And this the Lords thought hard Forrester being content to dispute his Right that a Right to his Lands should be established in the Person of another to trouble him But it were fit our Practiques were uniform And it appears hard that a Creditor who is a stranger and has not the papers in his hands and is not in a Capacity to pursue for them before he get a Title by Adjudication should be forced to Dispute his Debitors Right Newbyth Reporter D. 46. Abercrombie contra eod die FOund that a Pursuit upon an Assignation after the Summonds execute should not be Sustained though the Cedent concurred the Pursuit not being at his instance Newbyth Reporter D. 47. Kennedy contra Hamilton eod die THe Lords Found a Comprysing upon a charge to enter Heir null Because the person at whose instance the charge was had no Right to the Debt the time of the Charge the Assignation whereby he had Right being acquired thereafter so that the Charge was Inanis and without ground Me referente D. 48. Binning contra Farquhar Eod. die A Disposition being made by a Father in favours of a Son And thereafter the same Lands being Disponed by the Son in favours of his Brother in Law The said Rights were questioned by a Creditor as being fraudulent being Disponed by the Sons Contract of Marriage which though Onerous as to Provisions in favours of the Wife is not so as to the Son whom the Father could not advance or provide in prejudice of the Creditors But it was alledged that the Disposition made by the Son was for an Onerous Cause and by the Act of Parliament though a Right should be found fraudulent yet a third party acquiring bona fide
Found That the Alledgance was not relevant unless he should offer to prove it really payed and profitably employed for the use of the Minor In this Process the Lords would not sustain the Reason per se unless Lesion were joyned and libelled viz. That the Lands were disponed sine Decreto Judicis D. 62. Shaw contra 13. Decemb. 1666. SHaw being confirmed Executor to his Brother a Factor at London and diverse Decreets being recovered against him at the instance of the Defuncts Creditors He desired a Suspension upon that Reason That he had done Diligence to recover the Defuncts Debts and Goods and that he could not satisfie the Decreets obtained against him until he should recover the Defuncts Estate and that he was content it should be divided amongst the Defuncts Creditors according to their Diligences and therefore craved a Suspension without Caution being content to make Faith that he could not get a Cautioner The Lords past a Suspension as to personal Execution only D. 63. Hamilton contra Brown 15. Decemb. 1666. HAmilton of Grange being pursued as representing his Father upon the Title of Behaving and Gerens pro Haerede for payment of a Debt of his Fathers It was alledged that this Condescendence viz. That he had behaved as Heir in sua far as he had granted Dispositions of Land belonging to his Father And 2ly That he had consented as appearand Heir to some Right of Lands apprysed from his Father Is not relevant unless it were said and alledged that he had done these Deeds before the expyring of the Comprysing seing he could have no Right after the expyring of the same and neither could be Heir nor Gerens pro Haerede as to such Lands And as to his consent it was not sufficient unless he had disponed The Lords inclined to be of this Judgement That his consent being as appearand Heir should import Behaviour and that though the Comprysings were expyred he might have an interest to question the same as not formal or Null or satisfied by Intromission or by some other Ground and that by his consent he was denuded of that Interest and therefore such Dispositions should import Behaving Yet in respect the Writes which were to be used to prove the Passive Title were not produced and much may depend upon the wording and conception of the same The Lords thought fit to ordain before Answer the Writes to be produced and assigned a Term to that effect But declared that their Act should be Litiscontestation quoad hoc That the Pursuer after the Term is run upon the said Act should not get others as if there were not Litiscontestation Lockhart for Grange and Birnie for the Pursuer D. 64. Hartshaw contra Hartwoodburn eod die SCot of Hartshaw pursued a Declarator of Property within the Bounds libelled and that he had been in Possession by pasturing and doing other Deeds of Property and debaring the Defender Hartwoodburn and his Predecessor In this Process there was an Act of Litiscontestation whereof a Reduction was intented upon that Ground that the Defender was absent and was Minor and indefensus wanting Tutors and Curators for the time his Tutor being dead and that he had a defence Minor non tenetur placitare The Lords Found If the Summonds had concluded the possessorie of Molestation And if that had been lybelled that the Pursuer the time of the intenting the Pursuit was in Possession would have repelled the Defence that non Tenetur against the molestation But because a Declarator of Right was only lybelled they reponed the Minor And Found that non tenetur placitare Longformacus for Hartwoodburn and Sir George McKenÈe for Hartshaw D. 65. L. Colvil contra Feuars of Culross eod die THe Lotd Colvil being Baillie of the Regality of Culross and lyable to uplift the Taxation of that Abbacy And having charged certain of the Vassals to pay their Taxation They suspended upon that Reason That a fifth Part more than the Taxation was stented upon them on pretence and in consideration of Charges The Lords Found That they could not be stented to more than the Taxation tho the Sheriff and Baillies of Regality be lyable to uplift the Taxation Yet it seems hard that they should be at the Charges of raising of Letters and Registration of Hornings and such like And albeit the Vassals who are content to pay their Proportion should not be lyable to more yet it may appear that it is reason that when the Sheriffs or Baillies give in what they have uplifted their Charges should be allowed D. 66. Hay contra Littlejohn 16. Deeemb 1666. LIttlejohn having comprised the Liferent Right of a Tenement in Leith the said Tenement became ruinous and by the fall of a part of it did crush a part of the next house adjoining to it belonging to _____ Hay of Knockondie In a Pursuit Knockondie against Littlejohn for Damnage and Interest The Lords sustained Process The Pursuer proving that the House was manifestly ruinous without necessity to lybel or reply that the Pursuer had required the Defender to repair his House It being sufficient that the case of the House was such as did really require and call for Reparation in order to his own Interest and for preventing his Neighbours So that it being his Fault that he did not repair the same he was lyable to refound the Pursuers Damnage And albeit by the Act of Parliament Liferenters may be urged to find Caution to keep their Liferent Lands Sarta tecta and in the condition they found them at their Entry And by the Civil Law Neighbours may be urged to find Caution Damni infecti the said Remedies are not privative in case any Prejudice be done before they be taken D. 67. Allan contra Campbel eod die EDinample Campbel being pursued as representing his Father upon the Title of behaving as Heir It was alledged that he intrometted with the Duties of the Lands condescended upon by a Right to two Comprysings against his Father It was replyed The Comprysings were not expired the time of his Fathers Decease so that in effect he was Heretor The Lords Found That Gestio being magis animi quam facti The Defenders Intromission by vertue of a Title did not infer Behaving D. 68. MenÈies contra Burnet Decem. 18. 1666. A Relict being provided to the Liferent of the conquest dureing the Marriage and pursueing for the same It was alledged that the Money in question which the pursuer pretended to be conquest dureing the Marriage did belong to the Defunct before the Marriage and that the Bond was renewed after it The Question was what way the said Alledgance tending to take from the Pursuer the benefite introduced in her favours by Write and by her Contract of Marriage could be proven Yet the Lords enclined to find it probable by the Debitor and the Witnesses in the Bond But before Answer They Ordained the Defender to use such Probation as he thought fit for proving the Alledgance Reserving
leaving alse much as would be sufficient for the use foresaid It was Alledged that the Servitude did affect the haill Muir and that their Right flowing from himself could not be restrained sibi imputet who did grant it in the Terms of the said Latitude The Lords considering that it was intended that the said Servitude should only be for the end foresaid and it would be a prejudice both to the publick interest which is concerned that the Country should be improven and waste unprofitable Grounds Laboured and to the pursuer also without the least advantage to the Defenders They therefore Ordained alse much Ground to be set apart as might more nor sufficiently serve for the use foresaid and allowed the pursuer to labour and improve the rest without prejudice to the Defenders to make use even of the rest dureing the time it continueth in the present condition and not laboured And it case it should happen upon any occasion that what should be set apart for the Feuers use foresaid should prove short and not sufficient for that use they reserved Liberty to them to have recourse to the residue and granted visitation to the effect foresaid In praesentia Lockheart and Cheap alter MckenÈie D. 87. Hay of Stravan contra Oliphant 22. June 1667. IT was Found That a Miln-dam could not be drawn from one side of a Burn to another without a Servitude or consent of the Heretor having Lands on the other side and that the Heretor is not obliged to debate whether he had prejudice or not The Lands on the other side being hisand the Burn medio-tenus 2. It was also Found that he might lawfully demolish the Dam unless it were alledged that the Miln had gone the space of Fourty eight Hours So that it might have come to his knowledge that it was a going Miln Haystoun Clerk D. 88. L. Blantyre contra Walkinshaw 2. July 1667. IN a Reduction the Lord Blantyre contra Walkingshaw Ex capite minoritatis It was Found that the granting of a Bond though with consent of Curators being persons above all exceptions was Lesion and that it was not sufficient to alledge that the Money was actually delivered to the Curators or to the Minor in their presence unless it were also alledged that it were converted to his use This seemeth hard for the borrowing of Money by the Minor whose Affairs may require the same was not Lesion but the misemploying of it which is the fault of the Curators D. 89. contra Eod. die AN Assignation being made to Mails and Duties of a Tenement of Land for the Year in which it was granted and in time coming without Limitation The Lords Found That the Heir of the Cedent ought to have a formal and valid Disposition of the Land wherupon the Assigney may be Infeft Seing otherwayes he could not be secure as to a perpetual Right to Maills and Duties against a Singular Successor Et concesso Jure conceduntur omnia sine quibus explicari non potest D. 90. Mebrae contra Melaine 8. July 1667. IN the Process Mcbrae contra Melaine being for removing a Tutor suspect upon many Grounds and in special that the Tutors Father had been Tutor to the Pupils Father and had not compted and that the Tutor and his near Relations had Questions and Actions of great importance with and against the Pupil The Lords inclined That another Friend should be joined to the Tutor But no Answer was given by the Lords to the Dispute only the pursuers Procurators got a time to condescend upon a person fit to be joined D. 91. Crie contra E. Finlator 9. July 1667. A Creditor having obtained a Decreet in subsidium for payment of his Debts against the Magistrates of Dundee and having Assigned the Bond wherupon the Debt was due to the Magistrates they pursued the Cautioners in the Bond who alledged that the Debt and Bond being satisfied by the principal or Town of Dundee who was Lyable loco Rei ex delicto the Cautioners were liberate The Lords did demurr and delay to give Answer Vide infra 24. January 1668. D. 92. Grange Hamilton contra Smith Eod. die THe Lords Found That as the payment of Annualrents so the payment of Feu-duties may be proven prout de Jure Hay Clerk D. 93. Watson contra Law 15. July 1667. IN the Process Watson contra Law It was Found That Kirklands being Disponed with absolute Warrandice The Disponers are obliged to warrand from the Designation of a Gleib Though it was alledged that ex natura rei and not ex defectu Juris The said Gleib was evicted Thereafter it was Found in the same Cause That the Designation being as to Cows and Horse grass and upon a Law supervenient after the Disposition viz. An Act in the late Parliament The Disponer ought not to warrand from a Supervient Law D. 94. contra Eod. die EXhibition being pursued by an Appearand Heir to the end he may advise not only as to the Writes in favours of the Defunct but such as were granted by him The Lords superceeded to give Answer as to the last Member until they should consider the Act of Sederunt It being alledged by some of the Lords That by an Act of Sederunt it was ordained that no person should be forced to exhibite Writes granted by Defuncts in favours of himself or his Authors Except Writes granted by Parents Or Husbands in favours of Wives and Children D. 95. Hamilton contra Symenton 16. July 1667. IT was Found That the Mother being Liferenter of all that could belong to the Daughter as Fiar and Heir to her Father was obliged to entertain her and de facto having entertained her could crave nothing for her aliment though the time she was entertained she was only appearand Heir and thereafter was about to renounce to be Heir Hamilton Clerk D. 96. Elleis contra Keith eod die THE Lords upon debate and deliberation Found That a Person addebted in payment of a Sum upon a Wadset may pay his Debt and take a Renunciation tho the Creditor granter be inhibited and that Inhibitions do not affect Renunciations The Reasons that moved these that were for the Decision are 1. That Inhibitions do hinder the Liedges to purchass from Persons inhibited but not to borrow Money from them and as they may lawfully pay the Sums they borrow so they may take Discharges and Renunciations 2. When a Person does grant a Renunciation of a Wadset he doth not grant a Voluntar Right but only a Discharge upon the matter which in Law he might be forced to give upon an Order of Redemption 3. A Person inhibite might take Payment and grant Discharge of an heretable Bond even before Sums due upon such Bonds became arrestable 4. If Inhibitions should affect Renunciations of Wadsets then they could not be granted without consent of the Creditor who had inhibited even after an order of Redemption 5. The Inhibition where it mentioneth and prohibiteth
conclude the Owners that they should not be heard thereafter to prove that the Loadning belonged to them Some thought it hard that the Skippers fraud or mistake should prejudge the Owners But because in the case there was no ground to persume that the Skipper and Steersman did intend to prejudge or wrong the Owners and the Writs and Certificats produced were all after the Seizure and the Letters which were of anterior dates might have been made up and were all from Persons concerned and there were Documents found in the Ship that could clear that the Loadning did belong to the Owners The Lords Sustained the Sentence unless the Pursuer would qualifie Foroe and Violence and that the Depositions were Extorted Hay Clerk D. 121. Homes contra Paterson 17. Dec. 1667. IT was Found that the Attester of the sufficiencie of a Cautioner being pursued for the Debt the Cautioner being distrest and discust and not Solvent and the Attester having alledged that he offered to prove that the Cautioner was then the time he became Cautioner habitus reputatus Responsal idoneus as to the Debt The alledgance is relevant and the Attester no further lyable D. 122. Sir Thamas Nicolson contra the Laird of Philorth 18. Dec. 1667. PHilorth elder being pursued as representing his Grand-Father for payment of a Debt due upon Bond granted by the Earl Marischal and his Grand-Father as Cautioner It was Alledged that the Bond being Dated above fourty years ago was perscribed It was Replyed that interruption had been made by payment of the Annualrents by the principal Debitor It was Answered it was prescryved as to the Cautioner there being no interruption by any Document or pursuit against him or payment by him The Lords repelled the Defence in respect of the Reply and Found that the ground of prescription as to personal actions being odium and negligentia non petentis that it doth not militate in this case the Creditor haveing gotten Annualrent so that he cannot be said to be negligent Lockhart alter Cuninghame D. 123. Gilespie contra Auchinleck Eod. die MAry Williamson Lady Cumblidge having Right not only of Liferent but also to the Fee of the said Estate by Comprysing and being about to Marry with Patrick Gilespie her second Husband for settling and preventing Questions betwixt her Children and her Husband she did Dispone the Fee of the Lands to her eldest Son with the burden of 5000. Merks to be payed to her second Son at his age of Twentie one years and to Entertain him in the Interim And at the same time her eldest Son did grant and sett a Tack to the said Patrick for a year after his Mothers decease if he should survive her of her Liferent Lands reserved in the Disposition mentioning their purpose of Marriage And that he was to stock the saids Lands and that his Wife might die before him upon which considerations the said Tack is sett At the same time the said Mary did privatly dispone her Liferent in favours of her second Son John Auchinleck who intented a pursuit against her and her said Husband for the Maills and Duties of the Lands for diverse years It was Alledged that the said Right being a privat latent Right the Defender ought to be free of bygones as being bona fide Possessor by virtue of his Wife's Infeftment and his Jus mariti It was Answered That he and his Wife are Eadem persona and she being his author cannot pretend that they possessed bona fide in prejudice of a Right made by her self The Lords Found the alledgances relevant It was further alledged that the Disposition made to the Pursuer was most fraudfully granted in prejudice of the Defender after Treatie of the Marriage and the said publick Transactions in order thereto Which were Equivalent to and to in lieu of a Contract of Marriage the Wife having no other thing besides to dispose of besides her Liferent to which the Husband has Right Jure mariti so that a Contract was not necessary as to that And that the said Right was retained by the Mother and not delivered until she was Married at which time she could not prejudge her Husband and that the Defender had a Reduction depending upon the reasons foresaid The Lords Found the alledgance relevant And found that an Assignation not intimat and not being made for an onerous Cause could not prejudge the Husband having by his Marriage a publick Right Equivalent to an Assignation and therefore assoiled It was not considered whether the Right was delivered or not being found latent as said is D. 124. Wilson contra the Magistrates of Queensferry 2. January 1668. ARchibald Wilson being charged to accept the Office of a Baillie of the Town of Queensferry Suspended upon the Act of Parliament Jam. 3. Parl. 5. Chap. 29. whereby it is statute that Magistrates within Burghs should not be continued longer than a Year and subsumed that he had served the preceeding two Years This case being Reported The Lords Found the Reason Relevant And albeit the Act of Parliament be not in observance specially in Edinburgh The present Provost having been in that place diverse years yet the Ambition and unwarrantable practice of those who violate the said Act and others made to that purpose ought not to prejudge others who are most sober and claim the benefite of the same D. 125. contra 3. January 1668. A Wife provided to an Annualrent in Victual out of certain Lands by her Contract of Marriage did renounce the same and thereafter was Infeft in an Annualrent out of other Lands And upon the said last Infeftment a Process being intented for poinding of the Ground It was Alledged that the Seasin was null being alledged to be given by a Husband propriis manibus and the Assertion of a Notar without any precept or warrand in Writ It was Answered That the Marriage with the Relicts Renounciation of her former Right and her Contract of Marriage being all produced are sufficient Adminicles to sustain the same The Lords enclined to favour the Relict yet they found it of a dangerous consequence that a real Right should depend upon the Assertion of Notars and witnesses And the Question not being whether the Husband might or ought to have given his Wife the said Right in recompence of of her former But whether de facto he did the same Seing the foresaid Writes having no relation to the Seasin either as given or to be given could not be Adminicles to warrand or sustain the same And therefore before Answer it was thought fit to enquire if there had been any Decision in the like case as was informed D. 126. Sir John Home contra The Feuars of Coldinghame 7. January 1668. IN a Process at the instance of Sir John Home of Rentoun Justice Clerk contra The Feuars of Coldingham The Defenders offered to improve the Executions It was Answered They could not be heard unless they would propone the said Alledgance peremptorie but
that the same should be reserved by way of Action The Lords for avoiding the multiplying of Processes obliged them to propone the exception of Improbation peremptorie But the same being prior natura and competent to be proponed before any other in meritis causae And yet being now proponed peremptorie in form of Process being the last of Exceptions The Lords admitted the Defenders to propone their other Exceptions and reserved that to the last place D. 127. Eodem die THE Lords upon debate amongst themselves Thought that the Abbay being His Majesties House should not Exempt or protect any person against His Majesties Laws and the Execution of Letters of Caption and therefore Recommended to the Keeper of the Abbay to put him out and not to shelter him there D. 128. Forbes contra Innes 8. January 1668. IN the Case Forbes contra Innes and Dalgarno The Lords Found That a Wife having no Right for the time to Lands Disponed by her Husband and having at the desire of the Buyer consented and sold her Right if she thereafter acquire from another person a Right to the saids Lands is not by her consent concluded but may pursue and evict the Lands upon her Right Her consent operating only that upon any Right from her Husband or then in her person she cannot question the Right whereto she hath consented And the Brocara that Jus superveniens accrescit being to be understood of Jus superveniens Authori whereas a Consenter is not Author Lockheart alteri Wedderburn Thoirs D. 129. Laird of Glencorse contra his Brethren and Sisters 9. January 1668. ALexander Bothwel of Glencorse having Disponed his Lands to his Eldest Son by Contract of Marriage betwixt his Son and his Wife with absolute warrandice And by the Contract the Tocher being payable to the Father he did notwithstanding deliver Bonds of Provision to his other Children which were of a date before the Contract but not delivered diverse years after his Sons Marriage The Eldest Son pursued a Reduction of the said Bonds in so far as they may affect his Estate or be the ground of a pursuit against him as Successor Titulo lucrativo post contractum debitum The Reasons of Reduction were that the Bonds were not delivered the time of the Right granted to the Son and that he could not thereafter do any Deed in his prejudice and consequently could not deliver the said Bonds the delivery and not the granting being that which doth animate and make the same effectual It was Answered That the Father being Tutor of Law to his Children he having â—he Bonds for their use is equivalent as if the Children had them or that they had been delivered to them And whatever may be as to a Singular Successor they ought to be effectual against his Eldest Son who is universal successor It was Answered That Contracts of Marriage being not only in favours of the Son but in the behalf of the Wife and Children and with the Friends are most solemn and favourable Transactions Et bona fides is in them exuberant so that upon no pretence no Deed ought to be done by any of the Contracters in fraudem And that the Father if he had intended to have burdened the said Lands should have burdened the Fee expresly with the same that Provisions granted by Parents to their Children before they be delivered may be revocked and that the Father by granting the Disposition in favours of his Son had revocked the Bonds in question in so far as they may trouble him The Lords in respect it was proven That the Bonds were not delivered till after the Contract Found they could not be effectual against the Son and Reduced Sinclair and Wallace alteri Wedderburn Lockheart D. 130. Earl of Kinghorn contra The Laird of Vdney 14 January 1668. THE Earl of Kinghorn did Wadset to the deceast Laird of Vdney the Barony of Balhaves and the Sum due upon the Wadset being payed to Vdney he did by his Letter to the said Earl promise a Renounciation of the said Wadset to be granted by him The Earl of Kinghorn as Heir to his Father having pursued the now Laird of Vdney as representing his Father upon the passive Titles and especially upon that as Successor Titulo Lucrativo in so far as he was Infeft in the Lands condescended upon acquired by his Father to himself in Liferent and to the Defender in Fee with power to the Father or his Assigney to redeem the same upon payment of three Pounds And to Set Wadset and dispone without his consent It was Alledged the Sons Right was prior to the said Letter and that the Father did not make use of the said power It was Replyed That the Wadset was prior to the Defenders Right yet this Right being qualified as said is the Father might have contracted Debts and granted obligements after the said Right and the Defender would be lyable to the same seeing the Lands and the Fathers interest in the same being upon the matter a Fee and power to redeem and dispone might have been comprysed for his Debt contracted after the said Right There being two questions in the case viz. Whether the Defender be lyable as Successor Titulo lucrativo If it should be found that the Wadset was Anterior 2ly If the obligement shall be found to be after the Defenders Right whether he would be notwithstanding Successor Titulo lucrativo in respect of the quality and condition foresaid of the said Right The Lords repelled the alledgance and Found the Defender would be lyable as Sucessor the pursuer proving that the Wadset was Anterior As to the second question the Lords thought it not necessar to decide being of very great consequence and deserving hearing In praesentia seing it was notour that the Wadset was before the Defenders Right Yet we inclined for the most part to think that when such Rights are granted or Purchased by Parents to their appearand Heirs they should be lyable to all the Debts due and contracted thereafter at least secundum vires in quantum Lucrantur And beside the abovementioned reasons these may be urged 1. the Father having by such a reservation not only a reversion but in effect a Right of propertie In so far as he has power to Dispone and wadset as if he were Fiar if he should discharge the said Reservation his Discharge would inferr against his Son the passive title of Successor titulo lucrativo having gotten thereby an absolute and irredeemable Right which he had not before And therfore he not useing the power competent to him by the said Reservation being equivalent as if he had discharged the same ought to operate the same effect 2. Such a Right is in effect Praeceptio Haereditatis cum of effectu only the time of the Fathers decease seeing before that time it is in his power to Evacuat the same and therefore the time of the Fathers decease is to be considercd so as the
Son cannot be said to have Right or to Succeed effectualy before that time and so ought likewise to be lyable to the Debts contracted at any time before his Fathers decease D. 131. Balmedie contra the Baillies of Abernethie 15. Jan. 1668. A Decreet at the Procurator Fiscal's Instance of the Regality of Abernethie before the Baillie of the Regality against the Weavers in the Town of Abernethie for contraveening the Act of Parliament 1661 Anent the breadth and bleetching of Linnen Cloath was suspended upon that reason that the Bailies within the Town of Abernethie were only Judges competent to the Inhabitants within the Burgh The Lords Found that the Town being only a Burgh of Regality had jurisdiction within the same And the Baillies jurisdiction is Cumulative and not Privative unless they had it expresly by their Infeftment Privative and that in such cases Locus est Praeventioni D. 132. Parkman contra Allan Eod. die IN the late War betwixt his Majestie and Holland and Denmark a Swedish Ship being taken by a Scots Caper and adjudged Pryze A Reduction of the Admirals Decreet was pursued upon diverse reasons and in special this That by the Treatie betwixt his Majestie and the Crown of Sweden the Subjects of Sweden may traffique with their Alleys though Enemies to h s Majestie with freedom and carry in their Ships Counterband Goods Except such as are contained in an Article of the said Treaty being for the most part Armes and Instrument a Bellica and that the Goods in question which they had carried in their Ships to Holland viz. Tarr and stock fish were not of that nature 2. That when the said Ship was taken there was none of the saids Goods aboard and that it could not be declared Pryze upon pretence That immediatly before they had carried the said Goods to Holland seing it is not unlawful not a breach of Treatie betwixt his Majestie and Sweden that the Subjects of Sweden should continue the same intercourse and freedom of Trade they had formerly with their friends though now the Kings Enemies and if they carrie counterband Goods the only hazard is that if they be deprehended carrying the same They may be confiscat conform to the Treatie with Sweden bearing si Deprehendantur which is Consonant to the custom of all Nations and of the Admirality of England It was Alledged that the Ship in Question should not have the benefit of the Treatie having Served the Danes the Kings Enemies and being fraughted and loaded with Tarr from Noraway upon the account of Danish Merchants and with stock Fish which they had carried to Amsterdam That it was expresly provided by the Treatie with Sweden that they should not carry bona hostium and that tho the Danes were not the Kings Enemies yet Tarr and Stock-fish are Counterband Tarr being a Material so useful and necessary for a Naval Warr and that by the Treatie Commeatus is counterband and Stock-fish falleth under the notion of Commeatus and that by the Commission given by the Admiral to the Capers they are empowered expresly to seize on Ships not only while they have counterband Goods caryeing to his Majesties Enemies but upon the return having sold and disponed upon the same It was Replyed 1. That by the Law of Nations which is clear from Grotius de Jure Belli Goods that are usus promiscui both in Warr and Peace are not vetita and counterband and two Nations being engaged in Warr with others that are at friendship with both are allowed libertie of Trade with either as to such Goods And that Tarr is of that same nature and Commeatus except in the case of portus clausus or Civitas obsessa and from which deditio may be expected if not supplied 2. His Majesties Declaration of Warr with Holland bears that Ships carrying counterband to Holland if they be mett with carrying the same may be seized and that his Majesties Declaration Emitted of purpose in relation to other Nations should be considered as lex Belli and not a privat and unwarantable style of a commission given periculo petentis In this many Points being debated It was Found by the Lords that Tarr is Counterband 2. As to that Point whether a Ship having carried counterband Goods to Enemies may be seized upon in her return home-ward having sold and vented the same to the Enemies and not deprehended carrying the same They thought fit to know his Majesties pleasure and the custom of England and a Letter was writen to my Lord Secretary to that purpose 3. The Ship in question having carried counterband Goods to Holland and having thereafter made a Voyage to France and there having taking a new Loading of Salt upon the account of the Owners and being taken upon her comeing from France If it should be found that she might have been seized upon pretence that they had carried the said Goods to Holland It was Debated whether the Return should be understood of the immediat Voyage from Holland to France or until they should return to Sweden And as to this part the Lords thought good to take advice of Merchants In praesentia Lockhart Wedderburn alt Wallace vide feb 4. 1668. D. 133. Mckitrick contra _____ Eod. die THE Prescriptions of Reversions and Expiring of Legals and the taking advantage of the same are so odious That the Lords inclined to find that necessary Depursments upon reparation of Houses should not be allowed to a Compryser in a Declarator to hear and see it found that he was satisfied by intrommission reserving action to him for the same But before answer they ordained the Reporter to consider the Depursments and to Report whether they were absolutely necessary This is hard in the point of Law intromission being to be understood civiliter cum effectu of that which is free all charges deduced Hay Clerk D. 134. Trotter contra Trotter Eod. die THE Lords Found that a Wadsetter having comprised for his principal Sum may in competition with another Compryser pass from his Comprysing and return to his former Right of Wadset Gibson Clerk D. 135. Anderson dean of Guild of St. Andrews contra James Tarbat 16. January 1668. WIlliam Tarbat having granted Bond for 300 pounds to his Son James and other Children the said Bond was Reduced at the instance of a Creditor Because it was subscribed only by one Notar being a matter of importance Though it was alledged that it resolved in three several Bonds and it was Equivalent as if the three Bonds had been granted for 100 pounds respective For the Lords considered that the Bond being one and individual the importance as to the interest of the debitor is the same whether it be granted to one or to diverse Persons D. 136. Binnie contra Binnie 17. January 1668. MArgaret Binnie being induced to grant a Bond obliging her to resign some Tenements of Land in favours of herself and the Heirs of her Body which FailÈieing in favours of her Brother
Infeftment was publick by possession and that the Pursuers Infeftment is base It was Replyed 1. That the said Hary his Infeftment of the Lands was posterior to the Pursuers Infeftment and granted not only by a Father to a Son a conjunct person who by the foresaid Right praecepit haereditatem and though he cannot be pursued upon the passive Title of Titulus Lucrativus dureing his Fathers Lifetime yet his Mouth is stoped so that he cannot question any Deed of his Father preceeding his Right and that he is in the same case as if his Infeftment had been given with the burden of prior Rights It was further urged by the Pursuer That the Defender condescending upon his Entry and Initium possessionis he offered to prove that his Right was cled with possession before that time It was Duplyed That his Infeftment could not be cled with possession but as to the Annualrent of the 3000 Merks of borrowed Money so that it is base as to the other 3000 Merks of his portion It was Triplyed that the Infeftment was of an entire Annualrent of 360 Merks as appears by the Contract and Seasin And that the Right being of an Annualrent though payment of the half of the same be Suspended the Right being a joint and indivisible Right could not be ex parte private and ex parte publick The Lords Found That the Infeftment of Annualrent if it should be proven to be cloathed with possession as to the half is publick in solidum and admitted the Reply of possession But as to the second Reply viz. That the Defender was haeres per praeceptionem and could not question any prior Right granted by his Father The Lords Found it of difficulty and consequence and reserved the Debate and Decision until the end of the Process Hamilton Clerk Mr. Thomas Lermont alter Sinclair D. 155. Mr. George Johnston contra Sir Charles Erskine February 6. 1668. THE Lands of Knockhil being a part of the Lands of Hodam did belong to Richard Irvine and were comprysed from Robert Irvin Great Grand-child to the said Richard as charged to enter Heir to the said Richard at the instance of Mr. John Alexander Minister at Hodam But no Infeftment nor Diligence against the Superior having followed upon the said Comprysing dureing the said Robert his Life The Lord Lyon Sir Charles Erskine comprysed from Mr. James Alexander Son to the said Mr. John the Right of his Comprysing and obtained Infeftment upon the said Comprysing in August 1666. The said Robert's Two Sisters and his Sisters Children obtained themselves Infeft as Heirs to the said Richard their Grandsire and Fore-grandsire in June 1666. And upon a Right from them and their Resignation Mr. John Johnston being Infeft in October 1666. pursued for Maills and Dueties The Lord Lyon compeared and alledged that he and the Tennents ought to be AssoilÈied in this possessory Judgement Because he and his Authors had been in possession by vertue of the Comprysing at the instance of Mr. John Alexander by the space of seven years whereupon Infeftment has followed It was Answered That the Alledgance is not Relevant unless he had said that he was in possession seven years by vertue of a real Right which cannot be said the Infeftment being late and of the date foresaid It was further Alledged by the Lord Lyon that he ought to be preferred because he was Infeft upon the said Comprysing at Mr. John Alexander's instance against the said Robert as charged to enter Heir to the said Richard and his Infeftment was anterior to the said Mr. George's Infeftment upon the Resignation foresaid of the said Robert's Sister and Nephews retoured and Infeft as Heirs to the said Richard It was Replyed That no Infeftment or Diligence having followed upon the said Comprysing against Robert in his Lifetime his Sisters and Nephews might have served themselves Heirs to the said Richard who was last Infeft and de facto was Infeft as Heir to the said Richard before any Infeftment upon Alexander's Comprysing so that his Authors Infeftment being prior to the Lord Lyon's Infeftment the Pursuer ought to be preferred and as Robert if he had been served special Heir to his Grandsire if he had not been infeft the next Heir might have been Infeft as Heir to Richard and an Infeftment upon a Right from them would have been preferable to a Comprysing against Robert so in this case Mr. George ought to be preferred the special charge against Robert being only equivalent to a special Service and no Infeftment having followed in the person of the said Robert or the Compryser It was Duplyed That by the Act of Parliament Ja. 5. Ch. 106. Par. 7. It is declared that Execution against the Appearand Heir being charged to enter Heir should be equivalent as if he were entered which is the Certification in the special Charge and upon a Comprysing if Robert had been Infeft Infeftment being taken quocunque tempore even after his decease before any other person had been Infeft upon a Comprysing or Right from a next Heir The Comprysing against Robert would have been preferable The Lords Found That the benefite of a possessory Judgement is only competent by vertue of a real Right and that a Compryser cannot claim the same without an Infeftment or Charge against the Superior and repelled the first Alledgance The Lords Found The second Alledgance Relevant and preferred the Comprysing in respect of the Infeftment thereupon before the Infeftment upon the Right from the Heirs of the said Richard D. 156. Halyburtoun contra Scott 17. Decemb. 1671 A Provision granted by a Father to a Daughter for love and favour being quarrelled by a Creditor upon the Act of Parliament 1621. It was Answered that the Father the time of the granting of the said Right had an opulent Estate beside out of which the Creditor might have been satisfied and the Lords before Answer having ordained that a tryal should be taken of the Defuncts Estate and Witnesses being adduced to that purpose It was Found that the Defence was not proven It appears that the Defence was not relevant and that a Creditor is not holden to Debate whether his Debitor had a competent Estate to satisfie his Debt aliunde and that Debitors can grant noe Right without an onerous cause until the Debt be satisfied Haystoun Clerk D. 157. Paton contra Stirling of Ardoch 20. Dec. 1671. SIR Henrie Stirling of Ardoch did grant a Back-bond in savours of _____ Paton his Sisters Son whereby he obliged himself that being satisfied of the Debts due to him he should denude himself of the Right of the Lands of Panholls which pertained to the said Patons Father Whereupon a pursuite being intented against Ardoch's Sone as Heir and Executor to his Father It was Alledged that the Bond was granted in Lecto and could not prejudge the Heir and that he had a Reduction depending upon that reason And as Executor he could not be lyable the Bond being anent
loss by the event of that Process The Lords Found That the Executors having prosecuted a Process intented by the Defunct did their duty and officium should not be damnosum and therefore the Charges of that Process should not be upon their own accompt but should be defrayed out of the Executry but so that where Executors have no benefit by the Confirmation but are either simple Executors or universal Legators as to the superplus particular Legacies being payed if there be as much Executrie as will satisfie such Expences and the Legacies the Legacies ought to be payed intirely before the Executors have any benefit but if the Executrie will not amount to satisfy the Charges and particular Legacies the Charges are to be satisfyed and the Legacies to be abated proportionally and the Executor is to have no benefit but if he be a particular Legatar he is to be considered with the rest of the Legatars and to share with them proportionally Mr. Thomas Hay Clerk Concluded cause D. 182. Helen Mure contra John Law 6. June 1674. A Relict being pursued as Executor to her Husband for a Debt alledged she was only Executor Creditor for payment of 2400. merks provided to her by Contract of Marriage It was Answered That the Debt was satisfied at least compensed in sua far as she was obliged by the same Contract to give to the Defunct Goods and Gear to the value of 2400. merks which she declared she had in penny and penny worth and was worth the same which are the Words and obliged her self to put him in Possession thereof The Lords Found That the Husband having lived only 9. years after the Marriage because of the presumption that he had been silent all the time and had not craved nor declared the said Sum to be resting It was therefore to be thought that he had gotten the Goods and that the Obligement was satisfied and yet they thought that there being so much confidence betwixt Husband and Wife it were hard to put her to a full Probation They therefore Ordained her to give her Oath of Calumny that she had satisfyed the Obligement and to adduce some Probation and Adminicles to prove aliqualiter Mr. Thomas Hay Clerk Concluded Cause Mr. Rodger Hog alteri In the same cause it being further alledged that the Huband had payed for his Wife as much Debt as would exhaust that which she had brought with her and so that she had not payed it effectually The Lords Found That if she had put him in Possession of the Goods conform to the Obligement and that they were her own at least that she had a Right or coloured Title thereto that she was neither lyable to warrand either as to the eviction of the Goods or from any Debts seing the Husband taketh his hazard and in Law is lyable to the payment of the same Some of the Lords thought That albeit the Husband be lyable to the Creditors of the Wife whether she perform her part of the Contract of Marriage or not or whether he got any thing with her effectually or not yet it were very fit to consider the quality of the Debts of the Wife alledged payed by the Husband for if they were such as the Wife could not but know when she contracted Goods of the value foresaid and yet she did conceal them it were a Fraud and Cheat to oblige her self to be worth and give to her Husband Goods extending to 2400. merks when she knew she was not worth a Groat her Debts being so great as to evict the same They considered that in this case she did not dispone any Goods in particular but was obliged to a generalitie viz. That she was worth Goods of that value and she cannot be said to be worth in Goods the said Sum her Debt being equivalent Seing Bona are understood debitis deductis D. 183. Act of Sederunt eod die THE Lords thought fit to make an Act of Sedeâ—unt and to intimate it to the Advocats to the purpose following viz. That when an Alledgance is not admitted but a joint Probation is allowed before Answer if there be any other Alledgance found relevant and admitted to either Litiscontestation should be understood to be made as to that Alledgance 2. And likeways as to that effect that the Parties are concluded and cannot be heard thereafter to propone any other Alledgance 3. The Terms being run as to Alledgance not discust they are concluded as to the Probation of it as if the relevancy had been discust by a formal Act of Litiscontestation whereas it is remitted to be considered after Probation seing often ex facto oritur Jus and upon consideration of the circumstances after Probation the Lords have more clearness to determine Relevancy D. _____ 184. contra Hepburn 7. June 1674. THE Apothecary Patrick Hepburn his Son being pursued as Successor Titulo Lucrativo for a debt of his Fathers upon that Ground that tho the Right of Lands granted to him by his Father was before the Debt yet it was revocable and under Reversion to the Father upon a Rose noble when he contracted the Debt lybelled The Lords assoilÈied from the Passive Title foresaid but reserved Reduction It appears that the case was not without difficulty and that albeit future Creditors in some case may reduce Anterior Rights ex capite fraudis yet this is difficult and unusual and therefore it had been fitt to determine that Point viz. Whether an appearand Heir getting a Right revocable and of the nature foresaid should be lyable at the least in quantum seing if the Father had discharged the reversion he would have been Successor in respect of the Discharge after the Debt and the Son was a Child and the Father reserved and retained Possession and upon the Matter the Father 's not redeeming was a Discharge of the Reversion Actor _____ alteri Hog Concluded Cause D. 185. Cuningham contra Lees. 9. June 1674. THE Relict of James Deans alledging that her Husband had violently torn her Contract of Marriage pursued his Heir to hear and see the Tenor of it proven and offered to prove casum amissionis as said is The Lords albeit there was no Adminicle in write sustained the Summonds in respect there is a praesumptio Juris that there are Contracts of Marriage betwixt Persons of any consideration so that the Marriage was an Adminicle and the effect being meerly Civil and not Penal they had no respect to that Alledgance that the Process was after the Husbands decease and some 7 or 8 years after the deed D. 186. Paton contra Stirling eod die SIR Hary Stirling of Ardoch on Death-bed did by a Write acknowledge that the Right he had acquired from Doctor Paton of certain Lands was under Trust and for surety of Sums which he had payed for the Doctor whereupon Doctor Paton's Son intented a pursuit against Ardoch's Heir to declare the Trust and for Compt and Reckoning And before Answer The Lords having ordained Witnesses to
the said Impositions without repineing until after the Year 1664. That they did not so much question the Town 's Right to impose upon them the said Stents as the exorbitancy and frequency and inequality of the same as to their proportions they could not be heard now to plead and pretend exemption from the said Stents The Lords having Found as said is That the Lands of Drakies were not lyable to the said Stents The said _____ Roberson of Inches in behalf of himself and some other Feuars having only appeared in the debate and Forbes of Colloden who thought himself concluded by the above-written Decreet of Suspension and has consented to the same did notwithstanding desire that he might have the benefite of the said Interloquitor and that the parcel of Land which he had in the Forrest of Drakies might also be declared free of Stents seing there was eadem ratio and so there ought to be idem Jus as to him and the said other Feuars It was Answered for the Town of Innerness That he could not be heard in respect of the said Decreet of Suspension in foro and of his express consent therein contained Whereunto it being Replyed that the consent was only as to the individual Stent thereinquestioned and did not conclude him as to other Stents and that notwithstanding thereof it being now Found that the Forrest of Drakies whereof his was a part was free the immunity foresaid could not be denyed to him It was Answered and the said dissenting Lords were of the opinion that a Decreet in foro did bind him whatever others could pretend And it was evident by the said Decreet that it was then the Lords meaning Sir John Gilmour a person of great Parts and Integrity being then President that all the said Lands of the Forrest of Drakies should be lyable in all time coming and his consent is most positive and express to the Regulation of Stenting as to the future And the said Consent being premitted to the whole decerniture of the said Decreet doth influence and affect all the Articles and Heads of the same unless it had been limited and special as to an or moe and not all And it was so far from being limited to the Stent then in question that there is a Protestation subjoined to the decerniture in these Terms That Colloden and the Suspenders doe protest that they should not be lyable to such Stents as should be imposed for maintaining the Plea against themselves And exceptio protestatio firmat Regulam Sententiam in non exceptis iis contra quae non emissa est protestatio The Lords notwithstanding Found That Colloden should be free of Stents as to such Parcels as he had of the Lands of Drakies Thereafter the Town of Innerness did alledge that the Suspenders ought to be lyable as to the Milns and Fishings that they held in Feu of the Town seing they are undoubtedly the ancient Patrimony of the Town and they offer them to prove that they have been in use past memory to stent the same with the Burgal Lands when occasion required not only for Taxations imposed by Parliament but for the private use of the Town It was Answered That the said Alledgance was not now competent seing the Debate whereupon the Interloquitor proceeded was concerning the Suspenders Feues which they hold of the Town which comprehend both Lands Milns and Fishings and there is no reason of difference why the Milns and Fishings should be in an other case than the Lands It was Answered for the Town That in all the Debate there had been no mention of Milns and Fishings and they were content to make Faith that they did not understand the Debate to be concerning the Milns and Fishings but only the Lands of Drakies And if they had thought that they had been concerned to prove their Possession as to the Milns and Fishings there was that speciality that they might have proven more clearly their Possession as to the Milns and Fishings than as to the Lands and now they are able to prove the same Some of the Lords thought That the Question being of that Importance to an Incorporation and they wanting the Assistance of their most able Advocats upon the occasion abovementioned and the exception being undoubtedly relevant to inferr their Right and the conclusion of their Declarator as to the Milns and Fishings that they should be lyable to be stented if it were proven It were hard that their Right should be taken from them upon a quirck and pretence of Omission being upon a mistake as said is In end the Plurality of the Lords did Declare by their Interloquitor That if in November the Town should be able to make appear by ancient Records that they had been in Possession of stenting the Milns and Fishings with the Tenements of the Town when Impositions and Stents were laid on by the Town only and not by the Parliament for their private use that the same should be lyable as other Burgal Lands D. 191. Hamilton contra the Earl of Kinghorn 11. November 1674. JAmes Mauld of Melgum having assigned to James Hamilton two Bonds and he having intimate his Assignation to the E. of Kinghorn granter of the same did thereafter write to the said Earl shewing him that he had use for the Sums contained in the said Bonds and that he desired a course might be taken to pay the same And in Answer to his Letter the said Earl did Write and subscribe a Postscript upon a Letter writen to him by the said James Mauld to that purpose that the said James Mauld had assured him that he had made the Assignation foresaid upon assurance that my Lord should not be troubled to pay the said Debt and that he was about to take a course to that effect but that notwithstanding if he must be his Debitor he should take a course to pay the Annualrent but as for the Principal Sum it was not foreseen by him that he should be put to pay it at that time and he desired forbearance And thereafter being charged the said Earl suspended upon that reason that the said Bonds were granted by him to Melgum for the price of Lands Disponed by him to the Earl and by a Back-bond of the date of the said Bands Melgum was obliged to Warrand the Rental of the said Lands for two years and quatenus the Tennents should be short in payment of their duties the time forsaid he should pay wherin they should be wanting and that the Earl might retain in the first end of the foresaid Sums And that the said Earl had got a Decreet against the Tennents of the said Lands for payment of the Sums therein contained and therefor that he had ground of retention and compensation upon the foresaid Bond granted by Melgum effeirand to the Sums restand by the said Tennents Whereunto It was Answered that tho Compensation competent against the Cedent is competent against the Assigney yet where
continued still And Pilton's applying any part of the same for the use of my Lord Sinclair was so far from purgeing the Fraud that by the Act of Parliament it was a clear evidence and probation of the same And yet they thought That Pilton having out of respect to his Friend lent his name inconsideratly he might thereafter for his security take and the Exchequer might give Herdmanston's Liferent Escheat upon the account foresaid and the same cannot be thought to be to the behoof of my Lord Sinclair unless it had been either procured by my Lord Sinclair or granted expresly for his use And as to my Lord Sinclair's own Liferent His Majesty and Exchequer might qualify the Gift as they they thought fit and His Majesty might have been concerned upon many considerations that my Lord Sinclair should not want an Aliment and might either have detained his Liferent in his own hands in order to his Aliment or given the same sub modo and with the Burden thereof And the said Gift was given as to the Superplus foresaid for the Lord Sinclair's Aliment not to be modifyed by any other but by the Exchequer and at their sight and direction as the said Gift bears Upon the Grounds foresaid the Lords did prefer Pilton conform to the former Decreet Sir David Falconer and others for the Creditors alteri Dalrymple D. 199. Auchintoul contra Innes 10. Decem. 1674. THE Lords Found That a person being pursued as representing his Father or other Predecessors and denying the passive Titles the same ought to be proven and that the Defender by proponing a Defence in Jure as in the case in question that Annuities were discharged by the late Proclamation does not confess the passive Titles But if he should propone a defence founded upon a Right in the person of his Predecessor it would conclude him so that he could not pretend that the passive Titles should be proven Newbyth Reporter Vide 20. January 1675. Carfrae contra Talzifer D. 200. Stuart contra McDuff 11. Decem. 1674. IN a pursuit for payment of a Sum of Money It being Alledged That the Pursuer had intrometted with Moveables and Goods to the value of the Debt Lybelled pertaining to the Defenders Father for whose Debt he was pursued and that it was to be presumed that he had got the saids Goods in satisfaction of the same Debt unless he should alledge and prove an other Cause The Lords Found That if the Defence should be proponed in these Terms that the Pursuer had got the saids Goods in satisfaction and that they were data in solutum the Defence ought to be positive and that the delivery of the Goods was probable by Witnesses but the quality foresaid could not be proven otherwayes but by the Pursuers Oath But if the Exception was proponed so as to infer compensation viz. That the Pursuer had Intrometted with the saids Goods to the value of the Debt that it ought to be verifyed instanter by Write or Oath Castlehil Reporter Hamilton Clerk D. 201. Home and Elphingston contra Murray of Stenhop eod die IN a Competition betwixt an Assigney and an Arrester It was Alledged That the Assigney should be preferred because the Assignation was anterior to the Arrestment and tho it was not intimate yet the equivalent was done in sua far as the Debitor being desired to make payment to the Assigney and shewing his Assignation did promise to pay the same which upon the Matter was like a Bond of Corroboration which certainly would prefer the Assigney notwithstanding he had not intimate his Assignation The Lords Found That if the said Promise were verifyed by Writ it should exclude the Arrester but that it could not be proven by the Debitors Oath in prejudice of the Arrester And even as to the Debitor the said promise could not bind him being made in contemplation of a Right supposed to be in the person of the Assigney Which being Found not to be a valid Right there were no reason that the Debitor should pay twice And whereas it was pretended That if the Debitor had not accepted the Debt and promised payment the Assigney would have done Diligence so that he would have been preferable to the Arrester The Lords thought that sibi imputet that he had not perfited his Right as was Found before in the case of Pitfoddels contra Donaldson Forret Reporter Gibson Clerk D. 202. Moubray contra Arbuthnet 12. Decem. 1674. IN a Process for the single avail of a Marriage The Lords modifyed 9000 Merks the Rent of the Lands being proven to be 3000 Merks and it was thought that the avail of the Marriage should be in all cases of that nature 3. Years Rent D. 203. Lord Balmerinoch contra The Tennents of Northberwick 13. Decemb. 1674. THE deceast Sir William Dick having charged the Lord Balmerinoch for payment of a great Sum of Money due by a Bond granted by his Father and diverse other Noblemen who were Actors in the late times and did borrow the said Sums for the use of the publick as they called it and the said Lord Balmerinoch having Suspended upon diverse Reasons and also upon a Reason of Compensation Founded upon a Bond granted by the said Sir William to Sir John Smith whereupon the said Sir John had a Right to the Lands of Northberwick and had Assigned and Disponed the said Debt and Right in favours of the Lord Balmerinoch by a Disposition and Assignation Blank in the name of the Assigney and no Decreet being Extracted upon the said Process and the Act of Parliament anent publick Debts that no Execution should be for the same having interveened The Lord Balmerinoch having filled up the said Assignation in the name of James Gilmour did intent in his Name a Process for Mails and Duties against the Tennents of Northberwick The Creditors of the said Sir William Dick pretending Right to the said Lands by diverse Infeftments did compear in the said Process and alledged that the said Right whereupon the pursuite was Founded was extinct and satisfied In sua far as the said Lord Balmerinoch had Founded a Reason of Compensation upon the same against Sir William Dick which was sustained and whereupon there was a Minut of a Decreet Suspending the Letters against Sir William Dick for the Debt above-mentioned And that the said Assignation granted by Sir John Smith had been given up to Sir William Dick or his Son Sir Andrew as their Evident for Exonering the said Sir William of the Debt compensed upon It was Answered That there was no Decreet in that Process of Suspension against Sir William Dick And as to the said pretended Minute it was not produced And whereas it was desired that William Dounie who was Clerk for the time should be examined upon Oath concerning the said Minut and the giving up the said Assignation to Sir William Dick or his Sons It was urged that the Minutes and Acts of Process could not be made up by Witnesses
Et non creditur Clerico nisi quatenus constat ex Actis And 2. That there neither was nor could be a Decreet in the said Process In respect the said Suspension was upon other reasons that were Relevant and compensation being in effect satisfaction and the last exception the said Reasons ought to have been first discust viz. That there were diverse Arrestments at the instance of Creditors which should have been purged and that Sir William had Assigned the Debt whereupon he had charged and the Assignation was intimate So that the Suspender could not be in tuto to pay unless the consent of the Assigney were obtained and that the said Sir William was at the Horn and his Escheat gifted and that the Donator did not concur nor consent 3. Tho' there could have been a Decreet and the Arrestments had been purged and the Assigney and Donator consented yet the samen not being Extracted the Suspender might pass from his Reason of compensation seing res was integra before Extracting and the Suspender may eike and verify any other reason that is emergent And there had arisen a most relevant Reason and Defence to him upon the said Act of Parliament anent publick Debts of which he ought to have and may plead the benefite in regard Acts of Litiscontestation and Decreets are Judicial Transactions and Contracts and as in other Contracts there is locus poenitentiae before they be perfited in Write so in Acts and Decreets before they be Extracted Parties are not concluded as verb. g. even after Litiscontestation before the same be Extracted a Defence may be proponed and in Declarators concerning Clauses irritant tho Parties will not be admitted to purge after Sentence yet before Extracting they will be heard And even by the Common Law albeit ubi res transit in rem Judicatam sententia non retractatur ex Instrumentis noviter repertis yet before Extracting of the same if Writes be Found which will elide the Pursuers Lybel they will be received It was Answered for the Creditors That in this case res was not integra because the Suspender had so far acquiesced that in effect he had payed the Debt Compensation being equivalent And if before extracting he had made actual payment there would have been no necessity of extracting the same and in this case not only there was solutio ipso Jure in respect of the said Compensation sustained but de facto the Lord Balmerinoch had payed 3 or 4000 merks in satisfaction of the Debt charged for the Compensation being so far short and the Creditors had intented exhibition of a Discharge granted by Sir William Dick to the said Lord Balmerinoch of the foresaid Sum of 4000 merks and a Declarator that in respect of the said Compensation the said Right granted by the said Sir John Smith was extinct The Lords at the desire of the saids Creditors having examined diverse persons anent the said Minut and the giving up of the said Assignation and anent the having of the said Discharge granted by Sir William Dick to Balmerinoch the Creditors at length did pass from their Compearance And now the Cause being again advised the Lords did adhere to their former Interloquitor in Anno 1664. And did Find That before extracting Balmerinoch might pass from his Reason of Compensation and decerned in the said Process at Balmerinoch's instance against the Tennents of Northberwick Reserving to the Creditors their Action of Exhibition and Declarator as accords D. 204. Kinloch contra Rate 15. Decemb. 1674. THE deceast Mr. Robert Kinloch Portioner of Luthrie having granted after he was married a Liferent Right to his Wife by Infeftment in some of his Lands in satisfaction of any further Provision did thereafter give her an additional Jointure and Infeftment in other Lands after which he did give a Right of Annualrent forth of the Additional Lands to his Daughter Janet Kinloch The Daughter and her Husband Mr. John Dickson did intent a Poinding of the Ground upon the said Right of Annualrent in which Process Jean Rate Relict of the said Mr. Robert compeared and defended upon her foresaid Rights being anterior to the said Infeftment of Annualrent It was Replyed for the Pursuer That as to the first Right for Provision of the Wife she did not make question but that being in Satisfaction of any other Provision as said is the additional Right granted thereafter was for Love and Favour and Donatio inter virum uxorem and revocked tacitely by the Pursuers Infeftment of Annualrent The Lords Found accordingly That the said posterior Right was revocked by the Right of Annualrent pro tanto without prejudice to the Relict of the Superplus if any be the Annualrent being satisfied Newbyth Reporter Gibson Clerk D. 205. George Drummond contra MenÈies of Rotwell 16. December 1674. IN the Process at the instance of George Drummond for payment of a Sum due by Alexander MenÈies of Rotwel as intrometter with the Debitors Goods It was Found as in diverse Cases before That the pretence that the Defunct was Rebel and his Escheat gifted doth not purge vitious Intromission unless it be alledged that the Defuncts Escheat was gifted and declared before intention of the cause or that the Defender did intromet either by vertue of a Gift to himself or by Warrand and Right from the Donator for the Defenders Intromission tho the Gift was not declared before the intention of the Cause In respect if there was a Gift declared before the intention of the Cause the Defender is in the same case as if there were an Executor confirmed before the intenting of the Cause and if he had either the Gift himself or a Right from the Donator before he did intromet his Possession ab initio being by vertue of a Title tho not perfected cannot be said to be vitious and quivis Titulus etiam coloratus purges the vitiousness of the intromission Strathurd Reporter Gibson Clerk D. 206. Kelhead contra Irving and Borthwick eod die JOhn Irving Merchant in Drumfries having furnished Mournings Winding-sheet and others necessary for the Funerals of the deceast Earl of Queensberry did take a Bond for the Sum of 1424 merks from the Countess Dowager Relict of the said Earl which tho it did bear only that Narrative that the Lady was addebted to the said John without relation to the Cause foresaid yet it appeared it was for that Cause In swa far as the said Countess being confirmed Executrix to her Husband had obtained an Exoneration and the foresaid Debt contracted for the Funerals was one of the Articles of the same The said Countess having deceased the Earl of Queensberry her Son was confirmed Executor to her and a Decreet being obtained against him at the instance of the said John Irving for the foresaid Debt he suspended upon multiple Poinding against the said John Irving and the Laird of Kelhead and James Borthwick and certain other Creditors The said Laird of Kelhead alleadged that he ought to
the instance of the second Donator that the Assigney is preferable Sir David Falconer for Veatch alteri Dalrymple Charâ—ris c. Gibson Clerk This Decision appears to be hard seing Declaratoria non tribuit Jus but Declarat Jus quod est And the Horning being declared upon the first Gift there needed not a Declarator upon the second Vide infra 12. February and 10. Novem. 1675. inter eosdem D. 250. Douglass contra Jackson and Grahame 11. February 1675. THE Lords Found that a poinding is not lawful unless it be begun before the setting of the Sun and what is to be done at that time be all done and compleat before the Day light be gone D. 251. Lady Torwoodhead contra The Tennents eod die THE Lady Torwoodhead having gotten Aliment modified to her by the Lords of Council of 600 Merks yearly and for surety of the same having gotten the Gift of her Husbands Liferent Escheat did pursue the Tennents for Mails and Duties It was Alledged for Florence Garner That he had Right to the Lands Lybelled and Mails and Duties of the same by Comprysings and Infeftments thereupon expired It was Answered That the Mails and Duties of the Lands exceed the Annualrents of the Sums contained in the Comprysing and by the Act of Parliament 1661. for ordering the payment of Debts betwixt Creditor and Debitor where the Lands Comprysed exceed the Annualrents of the Sums contained in the Comprysing The Comprysers are restricted to the possession of such of the Lands dureing the Legal as the Lords of Session should think just And that the expireing of the said Florence his Comprysings was interrupted by an Order used by Edward Ruthven Son to the Lord Forrester It was Answered for Gairner That the Lord Forrester had no Right to the Reversion of Torwoodhead's Lands so that no Order used by him as to these Lands could be valid to interrupt the said Comprysing And the said Order neither was nor could be declared The Lords In respect the Lord Forrester being principal and his Brother Torwoodhead Cautioner both their Lands were Comprysed for the same Debt and that the Principal may satisfy the Debt and extinguish the Comprysing as to both his own and the Cautioners Lands They Found that the said Order did interrupt the Comprysing as to both This appears to be hard 1. Because the said Act of Parliament indulges the favour foresaid to the Debitors themselves upon the Conditions thereinmentioned viz. That they should ratify the Comprysers possession and deliver the Evidents and the same cannot be extended to Donators 2. A Comprysing cannot be interrupted but either by Payment and actual satisfaction or by using and declareing an Order of Redemption Until which be done the Comprysing cannot be thought to be unexpired Craigie Reporter D. 252. Kinnier contra _____ 12. February 1675. THE Lords upon a Bill given in by _____ Kinnier who had obtained a Bonorum and a Testificat of diverse persons of Credit that he had become insolvent upon occasion of loss and ill Debtors and was otherwayes vertuous They dispenced with that part of the Decreet anent the wearing of the Habit. D. 253. Presbytrie of Duns eod die THE Presbytrie of Duns having by Bill desired That Letters of Horning may be direct against certain persons who had been cited as Witnesses and did not appear before them The Lords did demurr In respect Letters of Horning ought not to be direct but either by consent of Parties or by Warrand of Acts of Parliament As appears by Acts of Parliament ordaining Horning to be direct upon Sheriffs and Commissars Decreets and Decreets within Burgh and Admirals Decreets D. 254. Cruickshanks contra Watt. eod die THE Lords Found That a Disposition being made after Inhibition but before the Registration of the same may be reduced ex capite Inhibitionis seing the Execution of the Inhibition doth put the Leidges in mala fide And after the same is compleat and thereby the Debitor and the Leidges are inhibite to give and take Rights the Inhibition ipso momento thereafter is valide and perfect but resolvitur sub conditione if it be not Registrate in due time Mr. Thomas Hay Clerk D. 255. Veatch contra The Creditors of James Ker and Peter Pallat. eod die IN the case abovementioned Veatch contra The Creditors of James Ker and Peter Pallat It was farther Alledged for the said William Veatch that he ought to be preferred because by the Act of Parliament 1621. Assignations or other Rights granted by Bankrupts in favours of any of their Creditors who had not done Diligence and in prejudice of a Creditor who had done Diligence by Horning or otherwayes are void And the Creditor who is partially preferred and gratified if he recover payment he is Lyable to Refound And by the Act of Parliament in Anno. 1592. anent the Escheats of Rebels Cap. 145. Assignations made stante Rebellione in prejudice of the Creditor at whose instance the Cedent is at the Horn are Null and that the said Assignation made by Sanderson in favours of Ker and Broun was made by him after he was at the Horn at the instance of David Rodger Veatches Cedent And the said Assignation being Null for the Reason foresaid all that has followed thereupon is void It was Answered That the said Act of Parliament is only to be understood in the Case when any voluntar Payment or Right is made in defraud of the lawful and more timely Diligence of another Creditor having served Inhibition or used a Horning Arrestment Comprising or other Lawful Mean to affect the Dyvors Land or Estate and that Horning is not such a Diligence as does affect being only personal Execution against the Debitor and that the said Debt of Stuarts was many years contracted by the Rebel after the said Horning and that the said Stewarts residing in Ireland and their Bond being conceived after the stile of English Bonds did not fall under Sanderson the Creditors Escheat Whereunto It was Answered That by the said Act of Parliament Bankrupts after they are at the Horn cannot make any voluntar Right or Payment to gratify or prefer other Creditors so that there is no necessity to debate whether Horning doth affect or not And yet the truth is Horning is such a Diligence as doth affect seing thereby all the Escheatable Goods are affected and do belong to the King and to the Creditor at whose instance the Horning is who is preferable to the King and has an interest in the said Goods and that what ever belongs to a Rebel whether the time of the Rebellion or at any time how long soever thereafter during the Rebellion the same accrues to the King and consequently to the Creditor in the Horning and that nomina debitorum and Debts non habent situm but are personal Interests and sequuntur personam Creditoris and if they be moveable do fall under his Escheat which is a Legal Assignation as said is The Lords enclined to prefer
same simpliciter and tho such a Qualification may be allowed to Strangers and singular Successors who may be in bona fide to take Assignations to Writs Yet Wives and conjunct Persons and Relations are in a different condition seing they are presumed not to be ignorant of the Deeds and Transactions of their Husbands and Relations Newbyth Reporter Monro Clerk D. 266. Thomson and Halyburton contra Ogilvie and Watson eod die DAvid Thomson having by his Testament nominate his Wife Executrix and Tutrix and having left a Legacy to his Son of 5000. lib. and having ordained his Relict to employ the same upon Annualrent in sua far as he ordained him to be educate upon the Annualrent of the same In a Pursute for the said Legacy and the Annualrent of the same It was Alledged That the Executrix could not be lyable for Annualrent And It being Replyed That she was also Tutrix and Tutors are lyable after the first Term that they embrace the Office for Annualrent of the Pupils Means and that having confirmed the Testament by the Nomination foresaid of her to be Tutrix she hath accepted the Office of Tutorie And the Point at Interloquitor being whether by confirming of the Testament she had accepted of the Office of Tutorie Some of the Lords viz. _____ Were of the Opinion That by Confirming of the Testament she did not accept of the Office But it was Found by the Lords That having confirmed without Protestation that she did not accept of the Office eo ipso she did accept of the same And tho she had emitted such a Protestation it could not be allowed seing she was not only named Executrix but had a Legacy left her and she could not accept the Office of Executry and Legacy foresaid and repudiate the Office of Tutory of her own Child The Lords in the Case foresaid Thought That if the Relict were able to make appear That having used all possible diligence she had not recovered Payment of the Defuncts Means she could not be lyable for Annualrent but from the time that she recovered the same Castlenil Reporter Monro Clerk D. 267. Gray contra Cockburn eod die THE Lords Found In the Case betwixt the Laird of Cockburn and Mr William Gray Minister at Duns That Cockburn being lyable to pay certain Bolls of Victual betwixt Yule and Candlemass might have payed the same upon Candlemass day and that as he might have payed the same he might have made offer thereof but that in all cases of that nature Persons who are lyable and do make such Offers are not thereby liberate as to the greatest Pryces unless the Partie be in mora to receive the Victual either the time of the offer or six days thereafter Castlehil Reporter Monro Clerk D. 268. Heckford contra Ker. 17 June 1675. MR. Hugh Ker having granted Bond to _____ Heckfords for the Sum of 1000. merks and being obliged thereby to pay the said Sum with Annualrent at Martimass thereafter and for the Creditors surety having wadset by the said Bond ten rudes of Land to be possest for the annualrent of the said Sum so long as the samen should remaine unpayed The Representatives of the said Mr. Hugh were pursued for 6 lib. as the inlake whereof the Rent of the Land did come short of the Annualrent of the said Sum and for publict burdens who did alleadge that the said Right being a proper wadset and the saids Lands being possest by the Creditor the Debitor was not lyable neither for Annualrent nor Publick Burdens The Lords Found That the Bond being of the Nature foresaid and containing a proper Wadset so that if the Duties of the Lands had exceeded the Annualrent the superplus would have belonged to the Creditor entirely and not been imputed in payment of the Principal the Debitor was not lyable either for inlake or publick Burdens And tho in the beginning of the Bond the Debitor was obliged to pay Annualrent yet the payment of the same was qualified and to be understood according to the whole Tract of the Bond viz. That the Duties should be allowed for payment of the Annualrent and that the Creditor should possess and have the use and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of the Land and Rents thereof for his Annualrent which is clearly a proper Wadset Newbyth Reporter Mr. John Hay Clerk D. 269. Colledge of Aberdeen contra The Town of Aberdeen eod die DOctor Reid having by his Testament left his Books to the Colledge of Aberdeen to be kept by a Bibliothecare and having left for a Patrimony and Sallary to the Bibliothecare the Sum of 6000 Merks and having named Mr. Robert Dounie his own Relation to be Bibliothecare and in case of his refuseal having appointed another to be chosen by the Colledge And the Master of the Grammer School Mr. Robert Paterson being presented to the said Office by the Colldge pursued a Declarator to hear and see it Found and Declared that he has Right to the said Office and Sallary It was Alledged for the Town of Aberdeen That no Title was produced for the Pursuer but the Extract of Doctor Reid's Testament bearing the said Mortification which could not be respected seing the said Extract is out of the Books of the Commissars of Aberdeen and his Testament could not be confirmed but by the Commissars of Edinburgh he having died out of the Country and therefore the said Extract could not be considered but as a Copy and the principal ought to be produced And it appears that there was never any Principal bearing the Masters of the Colledge to have the Election of the Bibliothecare seing the Town of Aberdeen has been in use since the Mortification to present to the said Office and by a Contract in anno 1632. betwixt the said Mr. Dounie and the Town he is presented to the said Office by the Town to which Doctor Dun the Principal of the Colledge was Witness and the Executors nominate likeways Witnesses The Lords Found There was no necessity to produce the Principal the Extract being a sufficient Title and as to the pretended Nullity it was not Juris seing non constat that Doctor Reid died out of the Coutry And if there were any Ground upon the pretence foresaid it were only of a Reduction It was Found also That by the said Testament the Nomination of the Bibliothecare did belong to the Colledge and the possession of the Town without a Right cannot Found a Defence in petitorio and the Deed and Contract with Dounie and the Subscription of the Principal and of the Executors of Doctor Reid as Witnesses could not prejudge the Colledge The Lords having considered the Tenor of the Mortification which gives Power to the Colledge to Name in case of Refusal of Dounie Found nevertheless that the said Interest to Name and choose a Bibliothecare was not temporary and prima vice Seing Wills of Defuncts were to be interpret benignly Especially in favours of Colledges and there can be no
from the Pursuer in the mean time a Piece which the Pursuer was to loose in case the Defender should not be married The Lords sustained the Pursute Tho some of their Number were of the opinion that sponsiones ludicrae of the Nature foresaid ought not to be allowed Strathurd Reporter D. 328. Sir Patrick Nisbet contra Hamilton eod die AFter the Lands of a Debitor were denounced to be comprysed a voluntar Right was granted by him of an Annualrent out of the samen Lands for an Onerous Cause whereupon the Annualrenter was infeft by a publick Infeftment before any Infeftment upon the Comprising and there being upon the foresaid Rights a Competition betwixt the Compriser and the Annualrenter It was Alledged That after the Lands were denounced the Debitor could not give a voluntar Right of the same being litigious and affected with the Denounciation And on the other part it was debated that the Debitor not being inhibite might give a voluntar Right for an Onerous Cause and the first consummate Right ought to be preferred The Lords In respect it was pretended there were contrary Decisions Thought fitt not to give Answer until these should be considered D. 329. Park contra Rysly eod die A Tennent having sold Nine Score of Sheep and the samen being caryed off the Roum where he was Tennent the Master of the Ground by Warrand of the Sheriff as having therein the Right and Interest of a tacite Hypotheck did seise upon the same The Lords Found That neither the Master nor the Sheriff without citing the Partie could seise upon the said Goods not being upon the Masters Ground nor give Warrand to that purpose And yet seing quaevis causa excusat a spolio they restricted the Pursute to wrongous Intromission and allowed to the Master his Defence for Retention of the Goods until he should be payed of his Years Duty Newbyth Reporter Hamilton Clerk D. 330. _____ contra _____ eod die THE Right of a Wadset being comprised the Compriser did require for the Sum due upon the Wadset and pursued the Representatives of the Debitor It was Alledged for the Defender That he could not pay the Money unless the Pursuer should put the Defender in Possession of the Lands It was Answered That the Pursuer not having possession himself and having loosed the Wadset by Requisition he could not put the Defender in possession and the Defender might have taken possession by his own Right and it was enough that he was content to renounce the Wadset especially seing neither the Pursuer nor his Author had done any Deed to put the Defenders in worse case as to Possession and the Possession was apprehended and still continued by an Anterior Compryser and the Pursuer had obtained a Declarator finding the said Comprysing to be satisfyed and extinct so that the Defenders might easily recover Possession The Lords notwithstanding Found the Alledgeance Relevant and that the Pursuers should put the Defenders in possession D. 331. Grant contray Barclay 10. February 1676. IN a pursute upon a Passive Title of Behaving It was Alledged that before intention of the cause the Defender had gotten a Gift of the Defuncts Escheat The Lords Upon Debate amongst themselves Found that albeit the Gift was not declared yet it purged the Defenders vitious Intromission being before the intention of the Cause and that the Defender having the Goods in his hands needed not a Declarator This seemed hard to some of the Lords In respect by our Custom there being two wayes adeundi haereditatem viz. either by a Service or by Intromission was the Defuncts Goods that were in his possession The Appearand Heir by medling with the Goods gerit se pro haerede And so by his Intromission having declared his intention alse fully as if he were served Heir semel haeres cannot cease to be Heir there being Jus quaesitum to the Creditors as to a Passive Title against him 2. The pretence that the Defender is in the same case as if there were an Executor confirmed before the intention of the Cause is of no weight Seing the Defence upon the confirmation is sustained because there is a person against whom the Creditors may have Action which is not in the Case of a Donator 3. A Donator has no Right without a general Declarator And tho when the Donator has the Goods in his hand there needs not a special Declarator yet for declaring his Right there must be a general one 4. As to that pretence that the Defender cannot be Lyable as Intrometter with the Defuncts Goods because they belong to the Fisk and not to him It is Answered That the Goods being in the possession of the Defunct the Appearand Heir thereafter medleing with the same eo ipso adit and the Creditors ought not to be put to debate being he is in Possession And if a person should be served special Heir to the Defunct tho the Defuncts Right were reduced and the Haereditas could be inanis as to the benefite yet the Heir would be still Lyable Mr. Thomas Hay Clerk D. 332. Mcquail contra Mcmillan eod die A Pursute being intented against the Wife as universal Intrometter to a Defunct and her Husband pro interesse and the Wife having deceased It was Found that the Husband should not Lyable unless it were proven that he had Intromission with the same Goods upon the Intromission with which the former pursute was intented against his Wife This was not without difficulty And upon debate amongst the Lords tho it was not the present case yet the Lords enclined to be of the Opinâ—on that the Husband having gotten a Tocher ad sustinenda onera Matrimonij If the Wife had any other Estate whereunto the Husband had Right Jure Mariti he should Lyable in quantum locupletior Nevoy Reporter Robert Hamilton Clerk D. 333. Alexander Abernethie contra Arthur Forbes eod die THE Lord Saltoun having given a Bond of 20000 Merks to Alexander Abernathie upon account of his Service and of the Service done by his Brother James Abernathie Thereafter the said Lord Saltoun did grant a Bond making mention that the Lands of Auchincleuch belonged to him and his Authors and that the said Alexander had been Instrumental to obtain a Reduction of the Rights of the Estate of Salton to the behoof of the said Lord Salton and therefore obligeing my Lord Saltoun to Infeft him in the said Lands The Lords Found That the said Bond being after the former and for the Causes foresaid and having no Relation to the said former Bond of 20000 Merks that it should be in satisfaction of the same Could not be interpret to be in satisfaction thereof And the Brockard Debitor non praesumitur donare does not militate in this Case Seing the Lord Salton was in a capacity to give both the said Bonds by way of Donation and the question was not betwixt the said Alexander and the Creditor but betwixt another person to whom thereafter he had
is both Heir of Line and Heir of Provision And if need bees the Relict and Children as Creditors by the said Provision contained in the Contract of Marriage and in the Testament may get Decrees against him as charged to enter Heir of Provision and if he renounce may adjudge the 30000 lib. provided to the Heirs of the Marriage Actor Sinclair alteri McKenÈe and Zeaman Gibson Clerk In praesentia D. 354. Irving contra Forbes 8. June 1676. IN the case Irving contra Forbes It was debated among the Lords whether a person should be Lyable as vitious Intrometter notwithstanding that it was Replyed that he was confirmed Executor And Answered That as to Superintromission beyond what was confirmed he was Lyable as Intrometter It was asserted by the President and some others That it was the custom and daily practique That notwithstanding of Superintromission even before the Confirmation the Executors ought not to be Lyable but secundum vires and that a Dative ad omissa may be taken yet others were positive of the Opinion that a Person Intrometting with more nor is confirmed was Lyable as vitious Intrometter Seing it could not be denyed but he was Intrometter and he could not plead nor pretend to be Executor as to what was not confirmed and if there were no Confirmation he would without question be lyable as Intrometter and the Confirmation ought not to put him in better case seing notwithstanding of the same as to Superintromission he is not only Intrometter without warrand and so vitious but is perjured having made Faith the time of the Confirmation that nothing was omitted And it is hard that a custom contrare to the Principles of Law and to the Opinion of Hope and other Lawyers should be obtruded unless upon a Debate in praesentia there be a Decision which may be the Foundation of a Custom D. 355. Burnet contra Gib 9. June 1676. THE Lords in a SpuilÈie of Teinds Pursued at the instance of Alexander Burnet contra William Gib Found That the Defender or his Author having enclosed a peice of Marish Ground to be a Yard and having made no other use of the same since but for Carrets and Roots he was not Lyable to the Bishop Titular or his Tacksman of the Parsonage Teinds for payment either of the value of the Parsonage Teind or for the Viccarage Teind which was found by plurality of one or two Voices These that were for the Decision did found their Opinion upon these Grounds viz. 1. That the Heretor potest uti Jure suo and that the Titular has no tye nor Servitude upon him but he may either Labour or not his own Ground If he do it not in fraudem or aemulationem of purpose to prejudge the Titular 2. That the Defender in order to his own Interest having thought fit to enclose his Ground and to make use of it for Carrets and Roots for which by the custom of the Country Teind is not due neither to Parson nor Viccar the Defender is not Lyable for Teind Seing Viccarage Teind and the payment of it is regulate according to Custom It was urged by the Lords that were of an other Opinion That the Titular of the Teinds had an interesse partiarium as to Teinds so that albeit the Heretor may uti Jure suo it is to be understood that he should use the same sine injuria without prejudice of the Titular And if of purpose to prejudge the Titular he should not Labour but suffer his Lands to ly waste he will be Lyable to the Titular for the value of the Teind that was formerly payable or might have been gotten As was Found in the case of the Laird of Polwart against the Minister of Polwart For If he should inclose all or a considerable part of his Ground that was arable Land and whereof the Teind was either payed to or led by the Titular it were hard that it should be in his Power to prejudge the Parson to the advantage of the Viccar But in that case the small Teinds would be considered as great and parsonage Teinds quia surrogatum sapit naturam surrogati And far less it ought to be in the Power of an Heretor to prejudge altogether the Titular or the Minister who is provided out of the Teinds as in the case in question by encloseing Ground formerly arable and making that use of it that neither the Titular nor Parson can have any benefite of Teind It being unjust that the Titular should be prejudged and that the Heretor should advantage himself and by his own Deed should free himself of Teind And albeit by the custom in some places Teind is not payed for Carrets and Roots in Yards the same being looked upon as inconsiderable and the Bounds where the same are Sowen or planted being small parcels of Ground for the private use of the Heretors own Family yet when a considerable Tract of Ground is enclosed and parked so that the Heretor has the same if not more profite than he has of his other Laboured Ground by selling the Roots and Fruits of the same as about Edinburgh or other great Cities where great parcels of Corn-Land are taken in and enclosed to the use foresaid as by the Common Law Teind is payable even for such Fruits and Profits So by our Law the Titular ought not to be prejudged And the custom that Teind is not payable for Roots and such like ought to be understood of such as grow in Yeards about Houses as said is for the proper and domestick use of Heretor or Tennent but not where a great parcel of Ground is taken in and destinate for profite and advantage by Soweing or Setting and Selling Herbs and Roots D. 356. Nairn contra Scrymger 13. June 1676. IN a Suspension at the instance of a Person who had bought Lands upon that Reason that the Seller who charged for the Price was obliged by the Contract to give him a perfect Progress and that the Progress exhibited to him was defective In swa far as the Lands did hold of the Bishop and the Original Right was not produced but only a Charter of Confirmation in Anno 1611 and the Charter confirmed was not produced and the Progress since the Charter of Confirmation was but late and some of the Charters had no Seasin following upon the same and some Seasins wanted the Warrand of Charters and Precepts And albeit it was alledged that the Charters would be found Registrate in the Bishops Register that defect was not supplyed thereby seing the Bishops Register was not Authentick and ought to have no other respect than a Register of any other Lord or Baron of the Writes granted by them The Lords Found That tho much may be said upon the Progress foresaid to defend against any Person that will pretend Right to the Lands and to found Prescription upon them A Buyer nevertheless was not Obliged to accept and acquiesce to the same as a sufficient Progress
the Buyer may and ought to take notice of the same whereas Compensation is but quasi solutio and it has never effect until it be proponed That point was also in consideration with the Lords Whether Compensation can be proponed by any person but such as has Right to the Debt And as to this point there were different Opinions and some of the Lords were of the Judgement that any person having interest to defend against Comprysings and pursuites upon the same might alledge they were satisfied in manner foresaid But others were of the Opinion that no person can pretend to compence but he that could discharge the Debt whereupon he would compence and consequently must have Right to the same And in the case in question neither a confirmed Testament containing the Debt due to the Defunct nor any Right to the same was produced The Act of Parliament K. Ja. 6th Parl. 12. Cap. 141. Being so positive that Compensation is only de liquido in liquidum before the giving of Decreets and never after the giving thereof Some of the Lords were of Opinion that tho the Defender had Right to the Debt due to the Defunct Compensation could not be received But some of the Lords having desired that the advising of these points being so considerable should be delayed till to morrow they were not decided Thesaurer Depute Reporter Gibson Clerk D. 363. Lamingtoun contra Raploch eod die A Suspension being craved Upon that reason that the Charger had been Curator and ante redditas rationes could not charge him with any Debt It was Answered That the Complainer being to be Marryed he desired the Charger and some others to be his Curators to the effect they might authorize him to Contract and the Charger had never intrometted Some of the Lords were of Opinion That if it could be verified by the Complainers Oath that the Charger had no Intromission and that these that Intrometted were Responsal In which case by the Civil Law there is no actio tutelae but against these who intrometted the others who had not Intrometted being only Lyable in subsidium the said reason should not be sustained But it being pretended that by our custom all Tutors and Curators are Lyable whether they intromet or not without out distinction and that Pupils may take themselves to any of them Tho it was not made appear that the said point was ever debated or decided yet the Lords Ordained the Complainer to give in a Charge against the Curator and the Compt to be discust upon the Bill Glendoich Reporter D. 364. E. Dumfermling contra Callender June 1676. BY Minute of Contract betwixt the deceast Earl of Callender and Dam Margaret Hay Countess of Dumfermling he was obliged to Infeft the said Lady in the Lands and Barony of Livingstoun in Liferent and Conjunctfee and whatsover other Lands and Sums of Money should be conquest during the Marriage He is obliged likewayes to grant surety of the same to her in Liferent in the same manner as of the former Lands And in case of no Issue of Children the one half of the said Conquest to be disposed upon as the Lady shall think fit And the Earl of Dumfermling having intented a Pursute as Assigney by his Father who was Heir to the said Lady his Mother for implement of the said Minute for declaring what Lands Sums of Money and others were conquest by the said Earl dureing the foresaid Marriage and for Infefting the Pursuer in the half of the said Conquest It was Alledged That the said Obligement and Clause of the Minute as to the Conquest are conditional viz. In case of no Issue of Children and that the said condition did not exist viz. There being an Child procreate of the said Marriage The Lords upon Debate in praesentia and among themselves did Find that the said Condition did exist In swa far as tho there were Children of the Marriage yet there was no Children or Issue the time of the Dissolution of the Marriage by the Decease of the Lady Albeit It was urged That these Conditions si liberi non extiterint vel non sint procreati and that Condition si non sint liberi superstites were different in Law and in the conception and import of the same And in the first case si non sint liberi sine adjecto tempore decessus vel dissoluti Matrimonii deficit ipso momento that there is a Child And the Condition being in the Terms foresaid in case of no Issue both in Law and in Propriety of Speech cannot be otherwayes understood and Interprete And in Claris non est locus conjecturae aut interpretationi which is only where words are Homonymous or Ambiguous And where a Clause is of it self such as may be understood without addition to make any upon pretence of the intention of Parties is not interpretari sed addere intentio in mente retenta nihil operatur And that if there had been Children of the Marriage who had Lived to that Age that they had been Marryed and had had Children who had all died before the Dissolving of the Marriage It could not be said without absurdity that there had been no Issue And both in Law and by our custom when there is any Advantage given or provided by the Law or by Contract in favours of the Husband in case of Issue It is ever understood si liberi sint procreaâ—i tho they do not survive As in the case of a Courtesy of Scotland And that Conditions ought to be taken strictly and according to the Letter especially in this case the Provision foresaid that the Lady in case of no Issue should have either a Fee or the half of the Conquest or a Faculty to dispose of the same It was farder Alledged That the said Clause doth not import that the Lady should have the Fee or the half of the Conquest but only a personal Faculty and Power to dispose of the half of the Conquest which she had not used And nevertheless it was Found by plurality that the said Provision imported a Fee In respect the said Minute was a short paper drawn by my Lord Callender himself who was altogether ignorant of the stile and conception of Writes And if it had been extended as it was intended it could not otherwayes be extended but the Fee behooved to be provided to the Lady as the half of the Conquest And that the half of the Conquest should be disposed of by the Lady did import that she should have a Fee and Dominium the very nature and essence of Property consisting in potestate Disponendi Some of the Lords were of Opinion that the said Clause did import only a personal Faculty Upon these Considerations 1. That the Right of Dominium being the highest Right and Interest can be given it cannot be thought to be given but when the words are such as are not applicable to any other interest whereas the said words do quadrate alse
whereby it was agreed that Pitrichie who and his Predecessors had an ancient Wadset of the Lands of Achincreive and others being a part of the said Barony should have the Reversion Discharged by Geight and that Geight should give him a new Right of the said Wadset-Lands irredeemable and holden of the King and should pay to Pitrichie for the Charges in obtaining and declaring of the said Gift 4000 Merks And that on the other part Pitrichie should Dispone to Geight the rest of the Estate and the Right he had thereto by the said Recognition Thereafter Pitrichie having intented Declarator for Nullity of the said Minute upon pretence that Geight did refuse and fail to perform his part did obtain a Decreet and did enter into a Bargain with the Earl of Aboyn and did dispone to him a considerable part of the said Estate that by his Power and Interest in the Countrey he might be maintained and be able to enjoy the rest But before the granting of the said Right to Aboyn Geight had intented a Reduction of the said Decreet of Nullity upon that Reason That the said Decreet was given In respect he had not the Writes at that time in hand to produce and to instruct that he was able to give a Right of the said Wadset-lands to be holden of the King and that they were now found upon search of the Registers So that he had not been in mora and the not production of the said Writes ought not to be imputed to him but to the Confusion of the Times his Writes being scattered and his Father having been long time a Sufferer and Prisoner for serving the King The Lords Found That the said Decreet being in effect upon a Certification for not Production and Geight condescending and offering to instruct that he had not been negligent and the occasion and manner that the said Writes were not in his Hand and how he had recovered the same he ought to be reponed against the same And that by the Reduction before the granting of the Right to Aboyn it was res litigiosa and Aboyn ought to be in no better case than Pitrichie D. 371. _____ contra _____ eod die A Bond granted by a Woman stante matrimonio for payment of a Sum of Money being ratified judicially It was Found That the Ratification did not bind her being of a Deed null in Law tho it was judicial being likewayes stante matrimonio D. 372. Blair of Kinfauns contra Mr. Thomas Fouler 6. July 1676. IN the Case betwixt Sir William Blair of Kinfaunes and Mr. Thomas Fouler It was Found That an Action at the instance of the Executors of a Minister for building a Manss and refounding the Expences of the same is competent against the Heritors for the time and their Representatives but not against a singular Successor and that it is not Debitum fundi Newbyth Reporter Gibson Clerk D. 373. Rynold contra Erskines eod die THE Lords Found That a Father having assigned certain Bonds for provision of his Children the Creditors have not only an Action of Reduction competent to them but a personal Action to refound the Sums uplifted upon the Bonds if the Assignation should be found to be fraudulent But did Reserve to the Defenders to debate whether the same was fraudulent The Defenders having Alledged that the same were granted by their Father having a plentiful Fortune for the time so that he might lawfully provide his Children Newbyth Reporter D. 374. Crauford contra Gordon eod die IN the Case Alexander Crauford contra Sir Lodovick Gordon The Lords thought the point in question viz. Whether or not a Backbond being granted by the Compryser the time that he did receive an Assignation whereupon he Comprysed or by a person having gotten a Disposition did affect the said Rights not only as to the Granters of such Back-bonds and their Representatives but likewayes as to Singular Successors And if the same should be Found to affect if it did affect only while the said Right was personal and before Infeftment but not after The Lords thought the said point to be of that importance as to the Consequence and Interest of the People that it was recommended that they should have their thoughts thereupon to the effect that the same may be decided with great consideration And accordingly this day the case being fully debated among themselves It was carryed and found by plurality of Votes That such Back-bonds do affect even as to a Singular Successor tho extra corpus Juris And albeit they be granted after the receiving of such Rights And that they affect Comprysings even after Infeftments has followed thereupon during the Legal but not after Diverse of the Lords did Argue and Vote against the said Decision and in special A. I. C. N. B. S. T Upon these Grounds 1. A Singular Successor does not succeed in universum Jus as an Heir but only in Jus Singulare And if the said Jus be simple and pure without any quality in corpore Juris any extrinsick quality or Deed may bind the Granter and his Heirs but not the Singular Successor who neither can nor is obliged to know and take notice of any quality that is not in the Right 2. The quality of a Right is an Accident of the same and Accidentis esse est inesse So that in Law where the same is not in corpore Juris it doth not affect the Right as to Singular Successors 3. Upon the Considerations foresaid Reversions and Bonds for Granting Reversions do not militate against a Singular Successor unless they be in corpore Juris or Registrate And tho there be an express Statute to that purpose yet it doth not follow a contrario where there is no Statute Back-bonds should affect seing the said Statute is made conform to the Common Law and is Declaratory as to Reversions being then most in contemplation of the Parliament but doth not derogate from the Common Law in other Cases 4. Back-bonds are upon the matter Reversions and do oblige only to make a Retrocession in favours of the Cedent and cannot operate more than if a formal Retrocession were made in favours of the Cedent which could not prejudge a Singular Successor unless it were intimate 5. It would be an irrepairable prejudice to the People and to Singular Successors who finding a Right pure without any quality are in bona fide to think that they may securely take a Right thereto And yet should have no remedy if upon pretence of Back-bonds and Deeds altogether extrinsick their Right may be questioned 6. As to the pretence of the prejudice to the People viz. That they are in use to grant Assignations in order to the deduceing of Comprysings thereupon and may be frustrate if the Back-bond should not affect the same is of no weight Seing they trust the Assigneys And it is their own fault if they Trust persons that doe not deserve Trust And they have a Remedy by intimateing the
appearand Heir to pay to Adolphus natural Son to the said Sir Alexander 6000. merks The said Mr. Francis did after the Defuncts decease grant Bond relative to the foresaid Bond and to the order for Adolphus his Provision whereby he ratified the foresaid Bond and was obliged to pay the said Provision to Adolphus upon this condition that the Countess of Midleton should Warrand and Relieve the Estate of Largo from all Inconvenients and in special such as might arise from his Uncles Intromission with publick Accompts and if the Estate should not be free in manner foresaid that the said Bond should be void The said Adolphus having pursued upon the foresaid Bond It was Alledged That it was Conditional as said is And the Defender did condescend that the Estate was distressed for a Debt of 20000 Merks for which a Decreet was recovered against his Heir The Lords Found notwithstanding That the said Resolutive Condition was to be understood so that the Bond should not be void altogether but only proportionally effeirand to the distress Newton Reporter Mr. Thomas Hay Clerk This Decision tho it may appear equitable appears to be hard in strictness of Law the precise Terms of the Condition being considered D. 398. Colledge of Glasgow contra Parishoners of Jedburgh eod die THE Lords Found That a Presentation of an actual Minister before the Term was not a compleat Right to the Stipend unless there had been a Warrand for his Transportation Thesaurer-deput Reporter Gibson Clerk D. 399. Inglis contra Inglis 13. December 1676. MR. Cornelius Inglis having granted a Bond to Mr. John Inglis for a Sum due to himself and for his Relief of Cautionries for the said Mr. Cornelius whereby he was obliged for his Surety to infeft him in certain Lands to be possessed by him in case of not payment of the Annualrent due to himself and the reporting Discharges from the Creditors to whom he was engaged and whereupon the said Mr. John was infeft by a base Infeftment The said Mr. Cornelius in respect his Son Mr. Patrick had undertaken to pay his Debts did dispone to him his Lands whereupon the said Mr. Patrick was infeft by a Publick Infeftment The said Lands being thereafter Comprised from the said Mr. Patrick and there being a Competition betwixt the said Mr. John Inglis and diverse other Creditors of the said Mr. Cornelius and his Son Mr. Patrick who had comprised the said Lands from the said Mr. Patrick The Lords Found That Mr. John Inglis was preferable to the said other Creditors In respect tho their Infeftments upon their Comprisings were publick and the said Mr. John his Infeftment was holden of the granter yet the said Mr. John's Right was publick as to Mr. Patrick in swa far as the said Mr. Patrick had corroborate the same and before the said Comprisings had made payment to the said Mr. John of certain bygone Annualrents in contemplation of his said Right and had taken a Discharge from him relating to the same so that his Right being Publick as to Mr. Patrick was publick as to those who had Right from him and Infeftments holden of the Granter being valid Rights by the Common Law and by Act of Parliament and Statute invalid only as to others who had gotten publick Infeftments in respect of the presumption of Fraud and Simulation the said Presumption cedit veritati and in this case is taken away in manner foresaid The Lords Found That notwithstanding that the Right was granted to Mr. Patrick upon the Consideration foresaid and for payment of the Debts thereinmentioned that the Creditors mentioned in the same had not a real Interest in the said Lands but only a personal Action against the said Mr. Patrick in respect the said Right was not granted to him for their use and behoof neither was it expresly burdened with their Debts and therefore the Lords did Find That all the Creditors both of the said Mr. Cornelius and Mr. Patrick who had Comprised within Year and Day should come in pari passu D. 400. Margaret Nevoy contra the Lord Balmerinoch eod die THE Lord Balmerinoch was pursued as Representing and Behaving as Heir to the Lord Couper at the Instance of Margaret Nevoy and diverse other Creditors of the said Lord Couper upon that Ground that he had ratified a Disposition made by the said Lord Couper in favours of his Lady on Death-bed and was obliged to comprise the saids Lands and to give the said Lady a Right to the Comprysing to be deduced that should be preferable to other Creditors And that by the Act of Sederunt in my Lord Nithsdales Case appearand Heirs granting Bonds to the effect their Predecessors Estate may be established in their Person or in the Person of some Confident to their behoof are lyable as Behaving and It was Alledged for the Defender that Behaving is magis animi quam facti and it is evident that the Defender did shune to be Heir and did of purpose take the Course foresaid that he should not represent the defunct The Lords Found That the Condescendence was only relevant in these Terms viz. That the Defender or any Confident to his behoof had comprised the said Estate for Balmerinoch's own Debt and had possest by vertue of the Comprysing Or that the Lord Balmerinoch had communicate the Right of the said Comprysing to the Lady Couper and that she had possest by vertue thereof and could not defend her self with her own Right as being in Lecto Or otherwayes defective It was the Opinion of some of the Lords That it was sufficient and Relevant to say that Balmerinoch had Comprysed for his own Debt and was obliged to Communicate the said Comprysing and had ratified the Lady Couper's Right For these Reasons 1. The Law considers quod agitur and not quod simulate concipitur And the Lord Balmerinoch by taking the course foresaid to compryse for his own Debt intends upon the matter adire and to carry away his Uncles Estate to frustrate Creditors 2. Tho it be pretended that there is a difference betwixt Nithsdal's Case and this In respect in that case the Adjudication was upon Bonds granted by himself after his Fathers decease And in this the Comprysing is for my Lord Balmerinoch's Debts Contracted before my Lord Couper's Death The said difference is not considerable seing as to that case there was a design to carry away the Defuncts Estate by a Deed of the Appearand Heir to the prejudice of Creditors and there is the same in this 3. Tho my Lord Balmerinoch had granted only a Ratification without Communicating any Right eo ipso he behaved as Heir In respect he had ratified the Ladies Right for any Right or Interest he had himself and he had an Interest as Appearand Heir sufficient to establish a Right in the Person of the said Lady and to prejudge Creditors so that they could not question the same Seing Rights on Death-bed being consented to by the Appearand Heir when they
are made or ex post facto become valid and unquestionable ex capite Lecti as appears by the Law of the Majesty concerning Rights on Death-bed D. 401. Earl of Argyle contra The Lord Mcdonald 14. December 1676. THE Earl of Argyle having pursued the Lord Mcdonald for Reduction of a Feu holden of the Pursuer ob non solutum Canonem It was Alledged That the Defender had a disposition of the Superiority from Lochzeal before my Lord Argyl's Right by a Disposition likewayes from him And tho my Lord Argyle having compleated his Right before the Pursuer by an Infeftment upon the same will have Right to the Feu-duties after his Infeftment yet the Defender had Right to the bygones by the foresaid Disposition made to him which being of the Lands and Superiority and made to the Vassal himself was upon the matter an Assignation to the Feu-duties and a Discharge And farder That as to the Feu-duties after my Lord Argyl's Right he was in bona fide not to pay the same having the foresaid Disposition as said is And my Lord Argyle having done nothing upon his Right to make Interruption And therefore the Summonds ought not to be sustained upon Cessation and not payment before Intimation of the Pursuers Right to the Defender Both which Alledgances the Lords Found Relevant In the same Case The Lord Mcdonald having proponed an Alledgance viz. That my Lord Argyle was obliged by Bond to warrand Lochzeal at the Hands of the Defender and of any pursute competent upon the said Disposition made to the Defender quem de evictione tenet Actio agentem repellit Exceptio And the same being Found Relevant the Defender giving his Oath of Calumny thereupon The Lords In respect the Defender being in Town had refused at least had not come to give his Oath of Calumny had decerned But the Lord Mcdonald having intented Reduction of that Decreet upon offer to give his Oath of Calumny upon pretence that it was towards the end of the Session when his Oath of Calumny was craved and that upon some occasions he had been forced to go home It was Alledged for the Earl of Argyle that upon Mcdonalds Refusal to give his Oath of Calumny it was in construction of Law a Calumnious Alledgance and could not now be received And the greatest favour could be shown to him was that he should be heard to verify the same instanter The Lords did decern superseding Extracting until a day in January that in the mean time the Defender might verify the said Alledgance having taken his Oath of Calumny that the Write was not in his own Hand Actores Lockheart and Bernie alteri Cuninghame and Thoirs In praesentia D. 402. Litlejohn contra Mitchel eod die THE Lords Found That Bonds granted on Death-bed albeit they are Legacies as to that effect that they do affect only the Deads part yet they are preferable to other Legacies left in the ordinary wayes of Legacies and that the Defunct was in legitima potestate as to the affecting of his part and granting of Bonds to that effect Justice Clerk Reporter Gibson Clerk D. 403. _____ contra _____ eod die THO in Improbations the user of Writes questioned as false ought to compear to abide by the same yet a Commission was granted to take the Defenders Declaration that he did abide by In respect he was a person of great Age. D. 404. Wallace contra Murray eod die THERE being a pursute at the instance of a Creditor against the Representatives of an Intrometter with the Debitors Goods The Lords Found That the Passive Title of Intrometter could not be sustained after the Intrometters decease to make him Lyable as universal Intrometter And yet sustained the same in quantum he was locupletatus the Pursuer for the Defenders farder surety confirming before the Extracting of the Sentence a Testament as Executor Creditor to his Debitor Thesaurer Depute Reporter Gibson Clerk D. 405. Grant of Rosollis contra L. Bamff 19. Decem. 1676. THE Lord Bamff having acquired the Lands of Craigstoun from John Lyon did give three Bonds to the said John Lyon Blank in the Creditors Name containing each of them 5000 Merks And at the desire of the said John did give a Letter with the said Bonds with a Blank direction bearing that the said John Lyon having Disponed to him the Lands of Craigstoun for which he had become Debitor by certain Blank Bonds containing 5000 Merks And therefore desireing that no person might scruple to take the said Bonds For it should be no dissatisfaction to him that they took them without acquainting him but that it should be holden as if they had received the Bonds in the beginning and had their Names filled up therein at that time The said John Lyon did fill up the Name of John Grant of Rosollis in the said Bonds and delivered the said Letter to him putting a direction upon the same for the said John Grant Whereupon the Lord Bamff being charged did Suspend upon that reason that he ought to have Retention because the said Bonds were granted for the price of the said Lands and in contemplation of a valid surety free of all Incumberances and the surety not being valid In respect the Lands were affected with Hornings Inhibitions and Comprysings equivalent to the Sums contained in the Bonds he had in Law Condiction as being ob causam non secutam There was also compearance for the Donator of the said John Lyons Escheat who did produce his Gift and Decreet of general Declarator and Alledged that he ought to be preferred because he had Right to the Sums due by the said Blank-bonds In respect the Chargers Name was filled up in cursu Rebellionis And the said Blanks being ab initio the Rebells while they were Blank they fell under his Escheat and he could not fill up or deliver the same in prejudice of the Fisk. The Lords Found That the pretence foresaid of Condictio causa data tho competent against the said John Lyon himself if the Bonds had been filled up in his own Name would not be competent against the Charger if his Name had been filled up ab initio Because if the Suspender had been content to give Bond to him It would have been delegatio in which case the Exceptions competent against delegantem would not have been competent against the Person in whose favours the Delegation was made And that the Charger was upon the matter in the same case seing the Suspender by his Letter was content that the Bonds should be holden as if they had been filled up ab initio The Lords also Found That the said Bonds being Blank tho they continued Blank were the said John Lyons proper Bonds and if he had deceased before the filling up of the same they would have fallen under his Executry and consequently he being Rebel and his Escheat gifted and declared they fell under his Escheat And His Majesty and the Donator could not be
Yet it may be taken away by a Reduction Ex capite Metus Doli and minoris aetatis and Lesion And that in such pursutes the Reasons being in Fact and Lybelled either upon Force or Circumvention and Fraud are probable by witnesses and that the Reduction at Fordels instance upon that Reason viz. That the Disposition in question was found among the Defuncts papers the time of his Decease and was intrometted with and filled up by Caribber is ex eodem capite Doli Mr. John Hay Clerk D. 433. _____ contra _____ eod die AN Edict of Executrie being Advocate from the Commissars a Bill was given in desiring that the Advocation might be summarily discust seing both nearest of Kin Creditors and the Fisk were concerned that the Testament should be confirmed and execute which Desire the Lords thought could not be granted in respect of the Act of Regulation but it was thought a great Escape and Inadvertency that such Advocations should be past seing the Lords could not confirm Testaments and if any Partie should be prejudged by any Act of the Commissars it may be reduced upon the head of Iniquity And the Lords thought it was fit that a new Edict should be raised and if an Advocation should be sought the Reason should be discust upon the Bill D. 434. Earl Argyle contra Mcnaughtoun 23. Jan. 1677. IN the Case abovementioned Earl of Argyle contra Mcnaughtoun It was Found That Mcnaughtoun having acquainted the deceast Marquess of Argyle that he was to Marry with his Lady and that the Marquess having returned an Answer by his Letter of the Tenor abovementioned the said Letter imported his Consent to the Marriage and that the Marquess having consented he could not claim the Benefite of the Marriage Vide supra 3. January 1677. D. 435. Tailfer contra Sandilands eod die A Curator having in his Accompts given in an Article of Incident Charges upon occasion of the Minors Affairs viz. That he had met with Agents and others in Taverns in Relation to the Pupills Affairs and had been at Charges in drinking with them extending to a considerable Sum during the whole time of his Charge The Lords did not allow the same in the Terms foresaid But Ordained him to condescend upon the particulars And if he kept a Book and Diary of his Debursements so that he might warrantably declare that he had truely debursed the particulars thereinmentioned they enclined to modify the same to such a Sum as they should find reasonable D. 436. Home of Ford contra Steuart 24. January 1677. A Wadset being granted in these Terms That the Wadsetter should possess the Lands and that the Granter should free the Wadsetter of Levies of Horse and Feu-duties and Ministers Stipends It was Found that the Wadsetter is not Lyable to Compt and Reckon for the Duties and superplus of the same exceeding the Annualrent In respect the Wadset was a proper Wadset and the Wadsetter was not free of all Hazards of the Fruits Tennents War and Vastation Redford Reporter Mr. Thomas Hay Clerk D. 437. Ronald Grahame contra Sarah Rome eod die JOhn Rome being obliged by his Contract of Marriage with his second Wife to provide 10000 Merks in favours of himself and his Spouse in Conjunct-fee and the Heirs of the Marriage whilks FailÈieing to his own Heirs and Assigneys And to provide also 5000 Merks in favours of the Remanent Bairns of the said Marriage The Lords Found That the Father was Fiar of the said Sums and that the Heir of the Marriage and Remanent Bairns had an Interest only to succeed to him as Heirs of Provision in the same And that the Creditors might affect the said Sums and would be preferable to the Bairns Notwithstanding their Debts were Contracted after the said Contract of Marriage and Inhibition thereupon seing the Inhibition could not take away his Fee And the Import and Effect both of the said Obligements and Inhibition is only that the Father should do no fraudulent Deed without an Onerous Cause in prejudice of the same Gosford Reporter D. 438. Ardblair contra Wilson eod die A Bond being granted by James Bisset of Neitherbalcarne to the Laird of Ardblair for Love and Favour to be payed after his decease The Lords Found That the said Bond being granted without an Onerous Cause to be payed in manner foresaid after the Granters decease could not prejudge posterior Creditors who were in bona fide to lend their Money notwithstanding any such Latent Deeds and Bonds This Decision seems to be hard Seing it was lawful both to the Granter and Receiver of the said Bond to grant and receive the same And the said Donation being lawful ab initio could not become thereafter unlawful by any Deed of the Granter And Fraud cannot be pretended but where Creditors or others the time of the granting of such Bonds were prejudged unless it did appear by some speciality and circumstance in the case that there had been a design to Cheat and Circumveen these who were to lend their Money by granting and settleing upon the Relations of the Debitor his Estate and thereafter to get in his Hands his Creditors Means whom he was not able to satisfy which was Found in the Case of Maisson and Pollock and was not Alledged in this Case Nevoy Reporter Mr. John Hay Clerk D. 439. Sinclair contra Home of Renton eod die A Bond of Corroboration being granted for a Sum due upon a Wadset with power to use Execution without Requisition The Lords Found That the Creditor may summarly compryse upon the same without previous Requisition Glendoich Reporter Mr. John Hay Clerk D. 440. Nairn contra Stuart of Innernytie eod die A Presentation being granted by a Bishop to a Prebendary in favours of a person dureing his Lifetime and after his decease to his Son The Lords Found in a multiple poinding and competition betwixt the persons substitute in the said Presentation and another Prebendar provided by the succeeding Bishop by the decease of the first Prebendar That the Substitution contained in the Presentation foresaid did expire by the decease of the Father and that the Substitution was void In respect the Bishop could not in prejudice of his Successor grant a Presentation in the Terms foresaid bearing a TailÈie and Substitution Castlehill Reporter Mr. John Hay Clerk D. 441. Drumellier contra E. Tweeddale eod die IT being objected against Major Bunting being led as a Witness for Drumellier against the Earl of Tweeddale That he had given Partial Counsel at least had concerned himself as a Party for Drumellier In swa far as he had been at Consultations with him in Relation to the Process The Lords Found That he could not be a Witness tho he was a person of Integrity above exception and that he was free to declare that at the said Consultations the point whereupon he was to be used as a Witness was not in consideration Gibson Clerk D. 442. Grange Dick contra Oliphant eod die
AN Assignation being granted for relief and payment of certain Sums mentioned in the Assignation for which the Assigney was Cautioner for the Cedent the same was questioned upon that head that it was never delivered but was still in the Cedents Hands The Lords Found That the said Assignation was never delivered And yet they Found That it was an effectual Evident in favours of the Assigney In respect the Cedent had made the same publick by a Horning thereupon Sir George Lockheart c. alteri Cuninghame c. In praesentia D. 443. Ker contra Kers 25 January 1677. A Disposition being questioned as being made in lecto at least delivered then It appeared by the Deposition of one of the Witnesses used for proving the Lybel that the said Write was subscribed diverse Years before the Disponer was on death-bed and that the same was delivered before death-bed to the said Witness and that the Defunct having called for it on death-bed for drawing two other Dispositions of the Lands contained therein one in favours of the Pursuer the Disponers Heir and the other in favours of a Son of the Disponer who was Father to the Person in whose favours the Disposition in question was made And upon debate amongst the Lords what should be the import of the said Testimony seing the Depositar did not declare in what Terms the same was given to him by the Disponer whether to the behoof of the said Person in whose favours it was made or not or upon any other account for keeping the same so that the Disponer might call for and alter it It was Found 1. That the Disponer might have revocked the same In respect it did not appear that it was delivered to the behoof of the Person to whom it was made This Decision seems to be hard in respect the Disposition was now in the Hands of the Receiver so that it was to be presumed that it was delivered either to him or to the said other Person to his behoof and the delivery ought to be construed and presumed to have been ut operetur and the nature of the Act it self imports that it should be to the behoof foresaid It not being to be imagined that if the Disponer had intended to have retained the Power in his Hands either to make the said Right effectual or not he would have given it out off his Hands 2. The Lords Found Upon the Testimony foresaid That the Disponer having revocked the said Disposition not simply but to the effect foresaid that the said two Dispositions should be granted The Pursuer therefore had not Right to the whole Lands contained in the said first Disposition but that the same should divide conform to the said two Dispositions Mr. Thomas Hay Clerk In praesentia D. 444. Procurator-Fiscal of Glasgow contra Cowan 26 January 1677. THE Commissar of Glasgow having sustained Process at the Instance of the Procurator-Fiscal for the tryal of a falsehood of Executions whereupon a Decreet had proceeded and having upon Probation of the falsehood decerned the user of the said Executions to pay 300. lib. to the Procurator-Fiscal as a Fine and the said Decreet being suspended The Lords Found That the Commissar was not competent Judge to the improbation of Executions by way of Action seing they cannot reduce their own Decreets and Improbation is a Reduction ex capite falsi Justice-Clerk Reporter Mr. Thomas Hay Clerk It is to be considered that the most part of Decreets befor Inferior Judges are for Null-Defence and upon false Executions and it were hard that there should be no Remedy but by Improbations before the Lords which may depend long and are very chargeable So that Decreets before Inferior Judges being for the most part for inconsiderable Sums the Remedy should be worse than the Mischief It appears indeed that the Commissars have not power to Fyne that being a Criminal Jurisdiction and that they are not Judges to Improbation by the indirect manner The Tryal of Falsehood by circumstances and presumptions being Altioris Indaginis and of that Difficulty that it ought not to be left to an Inferiour Judge Item The Tryal of Falsehood as to that effect that Falsaries may be punished ought not to be by any Inferior Judge But it seems to be just and necessary that Parties grieved by such Decreets should be allowed to pursue the obtainers of the same to hear and see them reponed against the said Decreets upon that Ground that they were not cited to the same to be proven by the Witnesses and Executer himself declaring that they pursue to that effect allanerly And it appears not to be inconsistent with Law and Form that this course should be taken seing the Judge does not reduce his own Decreet ex capite iniquitatis and it may be provided that such Pursutes tho they be upon the matter Improbations are only to the effect foresaid and that no other effect or consequence shall follow upon the same and multa fiunt per indirectum which cannot be directly And if a Party who is holden as confest should raise a lybel before an Inferior Judge that it may be Found that he was not Contumax being out of the Countrey or Sick or detained by Storm or some other insuperable Impediment and that therefore he should be reponed and the Decreet should be holden as a Lybel such a Pursute would not be incompetent tho in effect it would be a Reduction upon the matter D. 445. Donaldson contra Rinne 27 January 1677. IT was moved whether or not a Decreet of an Inferior Judge being questioned upon that Ground of Iniquity that the Lybel was not proven and the Depositions of the Witnesses being produced by the Pursuer ab initio The Lord of the Outer House may advise the Probation Or if it ought to be advised by the whole Lords It was Found That the Depositions being produced as said is the Lord may give his own Interloquitor as upon any other Write produced ab initio to instruct the Lybel Tho some of the Lords were of Opinion that the Probation ought to be considered and advised by the haill Lords And it was hard that the Probation being found sufficient by a competent Judge it should be in the power of one single Lord to review the same and find the contrare Mr. John Hay Clerk D. 446. Murray Pupil contra _____ 31. January 1677. A Pupil of 4. Years of Age being pursued upon the Passive Title of a Charge to enter Heir and the Friends conceiving that it were fit to Renounce none of them being Curators nor being willing to meddle and to authorize the Pupil to renounce The Lords Decerned but superceeded Personal Execution until the Pupil should be past Pupillarity Castlehil Reporter D. 447. Master of Rae contra Sinclar of Dumbaith 1. February 1677. SInclar of Dumbaith Sandside and others having in a Hostile manner invaded the Lord Raes Country There was a Criminal pursute intented against them for the
Crimes committed upon the occasion foresaid but the said pursute being taken away by a Remission there was thereafter a SpuilÈie pursued at the instance of the Master of Rae having Assignation from his Father and by his Tennents whose Goods had been Robbed and taken And it being Alledged against the said Pursute that it was prescrived The Lords sustained the Reply that the Prescription was interrupted by the foresaid Process before the Justices And again this Day a Summonds of SpuilÈie which had been formerly intented being produced and it being Alledged that by the said Summonds and Execution upon the same the Prescription was interrupted The Lords Found That the same did not interrupt In regard it appeared that the Names of the Defenders have been Blank in the saids Summonds and since filled up with another Ink And it appeared by the Executions that the same were at the instance of Gray of Arbo and others mentioned in the Summonds without specifying the said other Persons and the Defenders had settled with and satisfied Arbo So that it appeared that the Names of the said other persons had been filled up in the body of the Summonds of purpose to be a Ground for the said Reply But tho the Lords did not sustain the Process as to the effect of giving the Pursuer Juramentum in litem In regard the Goods Libelled were Libelled to extend as to the number of Good and the Damnage sustained by the Pursuers Cedent to vast Sums exceeding the value of that whole Country yet the Lords did adhere to their former Interloquitor That they would consider the time of the advising the profits of the Goods as in a SpuilÈie It occurred to some of the Lords and was moved whether Juramentum in litem being given to the Party wronged and upon that account that the quantities and the Kinds of Goods taken from him could not be so well known to others and proven if the same be a personal favour Or if it may be extended to an Assigney Newbyth Reporter D. 448. Holmes contra Marshall 2. February 1677. THE Lords Found That a Woman being provided by her Contract of Marriage to a Liferent of the Conquest of Lands or other Goods that should be acquired dureing the Marriage And the question being of Moveables and she having accepted a Third of the same she could not return to crave a Liferent of the other two parts tho it was Alledged by her she had not accepted the same in satisfaction of what she could claim 2. It was Found That a Woman being provided as said is to a Liferent of all the Moveables her Husband had the time he Marryed her and which he should acquire during the Marriage It was in her Option either to take her to her Liferent of the whole or to claim the 3d part in property but making Election could not varie Tho this was Found by plurality yet some of the Lords were of Opinion that by the Provision foresaid she has only a Liferent and that she had not the said Election Seing eo ipso that she is provided to a Liferent of all it is intended and agreed there should be no Communio bonorum It being inconsistent that she should be both Proprietar and Liferentar usufructu formali Newbyth Reporter Gibson Clerk D. 449. _____ contra Tait 6 February 1677. THE Lords Found That a Bond being granted on Death-bed with consent of his Appearand Heir for his Interest bearing an obligement to pay a Sum of Money Is to be considered not as a Legacy but as a Bond inter vivos Seing by the Common Law all persons are in legitima potestate as to the granting of Bonds And our custom whereby persons on Death-bed are not in in liege poustie is qualified with an exception viz. unless the Heir consent in whose favours the same is introduced Castlehill Reporter D. 450. _____ contra _____ eod die THE Lords Found That Appearand Heirs may be pursued as behaving before the year expire seing eo ipso that miscent adeunt passive And as to that pretence that they would be wronged if it should have appeared by the probation that they did not meddle It is of no weight Seing the Lords may modify Expences D. 451. _____ contra _____ 29. February 1677. AN Exhibition being pursued at the instance of an Heir of Conquest And it being Alledged by the Heir of Line that some of the Lands whereof the Writes were craved to be exhibited were in Holland and that by the custom there the Eldest Brother did not succeed as Heir of Conquest but all the Brothers and Sisters equally so that the Writes ought not to be delivered to the Pursuer who had only an Interest as to the fifth part whereas the Defender had four parts having acquired three from his Brothers and Sisters and having one himself and he having the far greater interest in the Land and Writes ought to have the keeping of the same being Lyable to make them forthcoming to the Pursuer The Lords notwithstanding preferred the Elder Brother to the keeping of the Writes In that same Cause It was Alledged That as to the Lands in Scotland the Defuncts Right was only by a Comprysing which was personal and whereupon no Infeftment had followed and which belonged to the Heir of Line as Tacks and Reversions The Lords nevertheless Found that the Heir of Conquest has Right to the same conform to a late Decision D. 452. Purveyance contra Knight 8 June 1677. THE Lords Found Upon the advising of a concluded Cause after Debate in praesentia in the Case in question That Liber Rationum and a Compt-Book of a Merchant containing an Article of Debt due by him to the Pursuer was a sufficient Probation In respect the said Compt-Book was written with the Merchants own Hand and he was known to be a person of great Honesty and Exactness and the Article was so clear that the time therein mentioned he stated himself to be Debitor in the said Sum all by gone Annualrents being payed and in an other part and Article of the said Book he did acknowledge that he had borrowed the said Sum and was special as to the time and there was a great Confidence and near Relation betwixt him and the Creditor and therefore the Lords decided as said is in respect of the said Circumstances but thought it hard that Compt-Books in Scotland where there is not that exactness that is else where in keeping Books should have that Faith that is given to them elsewhere Mr. Robert Stewart Actor alteri Cuningham Mr. John Hay Clerk In praesentia D. 453. Campbel contra Taite eod die THE Lybel being referred to the Defenders Oath and he having declared upon a general Interrogator that he was not owing the Sum acclaimed It was urged the time of the advising of the Oath that the Defender should declare whether or not he had gotten a parcel of Lint and what way he had payed the price of the
same The Lords Found That he should not be urged to declare upon that Interrogator In respect it was not desired he should be interrogate upon the same when he did declare and having denyed that he was any ways Debitor he would be involved in Perjury if upon a special Interrogator he should acknowledge that he was Debtor upon the account therein mentioned Mr. Thomas Hay Clerk Stewart and Swinton Advocats D. 454. Patrick contra Anderson eod die AN Executor having alledged that the Testament was Exhausted and for probation having produced the Defuncts Bond with a Discharge from the Creditor after the Defuncts decease and it being Found That the same did not prove unless there had been a Sentence produced It was thereafter Alledged for the Executor that seing he instructed the Debt and that he had payed the same bona fide the same ought to be allowed for his liberation at least that the said Debt should come in pari passu with the Pursuers unless they could object against the same as not a true Debt which was Repelled in respect no Legal Diligence had been done for the said Debt Some of the Lords were of Opinion that it should have been allowed to come in pari passu In respect the Diligence used by the Pursuer in intenting a Pursute against the Executor was only Personal and did not affect the Goods and the Executry being short and the Goods being to be forthcoming to all Parties having Interest any Creditor may compear for his interest and crave to have a proportion of the same at any time before Sentence Otherways a great Creditor in alse much as may be equivalent to the Executrie if he should pursue the Executor before the other Creditors they may be all frustrate Mr. Thomas Hay Clerk D. 455. Blackwood contra Pinkill 9. June 1677. A Father having infeft his Grand-child in Fee of his Estate and his Son Father to the Fiar in Liferent with a Provision that the Liferent should be alimentary to him The Lords Upon a Debate among themselves concerning the said Qualification of the Liferent were of the Opinion that the Son being provided before to some other Lands simplie without the said Quality the Creditors of the Son might by their Diligence affect the said alimentary Liferent except so much of the same as the Lords should think fit to reserve for a competent Aliment to the Son but there was not a Decision in the Case Mr. John Hay Clerk Concluded Cause D. 456. Captain Binnie contra Gibson 20 June 1677. THE Lords Found That a Partie being pursued as representing his predecessor for payment of the Sum due by a Bond might propone a Defence of Payment notwithstanding that he had before pursued an Improbation of the said Bond In respect the Bond being ancient and not granted by himself he was in bona fide to pursue Improbation of the same and thereafter it appearing to be a true Bond he may also alledge payment giving his Oath of Calumny upon the Defence D. 457. Pringle contra Pringle of Torsonce 21. June 1677. THE Laird of Torsonce having disponed his Estate to his Eldest Son for Love and Favour with a Provision contained in the Disposition that it should be lawful to him to burden the saids Lands by Wadsets of the same Or Annualrents forth thereof for the Sum of 5000 Merks Redeemable by his Son And having thereafter granted a Bond to a Daughter of a second Marriage of 1000. merks who did pursue the Representatives of the Son for the said Sum It was Alledged for the Defender That he could not be pursued Personally but if there were any Ground of an Action it would be only for a Declarator that the Lands are lyable to the said Debt 2. That there could be no Ground of Declarator in respect the Disponer had not made use of the said Faculty nor granted a Wadset for the said Sum and that the Defunct had a personal Estate and Executry And in swa far as he had not conform to the said faculty secured the Pursuer out of the said Lands he had declared his Intention not to make use of the said faculty The Lords Found That the Pursuer ought to discuss the Executry and any other Estate belonging to the Disponer and if the said Sum could not be recovered out of the personal Estate that he might have recourse against the said Lands which was Found by the Lords upon these considerations viz. That the Right made by the Father being for Love and Favour the said Reservation ought to be interprete benigne and it was to be considered quid actum the Fathers intention being to have a Power to contract alse much Debt as might amount to the said Sum And eo ipso that he did grant the said Bond he did burden the said Lands virtually and in his own time they might have been comprysed for the said Sum and therfore may be now affected and comprysed 2. The Fathers End being to have power to burden with the said Sum the modus and way was insert ex stylo by the writer that which is mentioned in the Disposition being the most ordinary and therfore to be understood demonstrative but not taxative 3. Tho some of the Lords were of Opinion That the Pursuer may immediatly as other Creditors have recourse against the Estate yet it seemed to be reasonable that in this case the Reservation being in the Terms foresaid and the Bond whereupon the Security was founded not relating to the same the Executry should be first discust Seing by the Common Law the Executry was ever first lyable And tho by the Lords Practice Creditors may pursue either the Heir or Executor yet there being such a speciality in this case and the Defender not representing personally the Grandfather as Heir or otherways by Progress his Representatives ought to be first discust and the said Lands to be lyable only in subsidium Actores Sir George MckenÈie Mr. Robert Stewart Alteri Lockheart and Pringle Gibson Clerk In praesentia D. 458. Malloch contra The Relict of David Boid 26. June 1677. A Second Compryser having pursued a Declarator that the prior Comprysing was satisfied by Intromission and the Defender having in the Compt and Reckoning given in an Article of Debursements for prosecuting and defending of Processes concerning his Right The Lords Found That as to the extinguishing of the Comprysing upon the account of Intromission the Expences in deduceing the Comprysing and obtaining Infeftment were only to be allowed but not any other extrinsick Debursements But the Comprysing being extinct and satisfied if there were any superplus of Mails and Duties for which the Compryser was to be comptable he might retain of the first end of the same such as were profitably expended not only in Relation to his own but the Pursuers Right Newbyth Reporter D. 459. _____ contra _____ eod die THE Defender in a SpulÈie having Alledged that the Goods were his own and that having
on a Decreet turned thereafter into a Lybel may be loused d. 284. Arrestment cannot be loused upon pretence that it was laid on after the Decreet was Suspended d. 263. First Arrestment tho last Decreet of forth-coming being sine mora found preferable d. 110. Arrestment upon a Dependence d. 237. ARTICVLATVS LIBELLVS see d. 314. ASSIGNATION see d. 123. Assignation after Summonds Execute not sustained as a Title albeit the Cedent concurred d. 46. Assignation Blank in the Creditors Name d. 54. Assignation by a Wife to her Husband by her Contract of Marriage d. 195. Assignation not intimate in the Cedents Lifetime d. 51. An Assignation to Maills an Duties in all time comeing obliges the Cedent and his Heirs to grant a Disposition whereupon the Assigney may be Infeft d. 89. ASTRICTION d. 293. d. 351. see d. 173. ATTESTER of a Cautioner acquite proving that the Cautioner was then Repute Responsal as to that Debt d. 121 AVAIL of Marriage see d. 415. B. BACKBONDS d. 211. see d. 162. Backbond to the Exchequer see d. 198. Backbonds by Comprysers .. d. 374. BACKTACK see d. 57. BAILIF see d. 131 BANKRUPTS d. 94. see d. 198. d. 249. d. 282. d. 287. d. 292. BANNA see d. 13. BARON d. 209. BASE Infeftments d. 461. A Base Infeftment sustained to a Wife as publick others being in possession by Redeemable Rights from the Husband tho he was not in possession himself d. 100. BEHAVING as Heir d 400. d. 450. d. 462. BENEFICE see d. 115. BIDEING be see Abideing be a Writ Litera A. BILLS of Exchange d. 231. d. 365. see d. 236. BISHOPS see d. 194. d. 375. BLANK Writs d. 334. d. 403. see d. 54. d. 139. BONAE fidei possessor d. 123. BOND blank in the Creditors Name d. 139. A BOND being granted by a Wife and her Husband with a Clause to Infeft tho null as to the Obligement to pay the Sum yet valide as to the Right of her Lands d. 6. d. 25. A Bond granted by a Father to a Daughter is revockable if it be not compleated by delivery or by Infeftment if it be Heretable Or by Assignation intimated or confirmed Testament if it be Moveable d. 106. Bond of provision d. 140. see d. 384. A Bond to a Husband and his Wife and the longest liver and the Heirs betwixt them and to the Heirs of the longest Liver Found to make the Husband Fiar d. 144. A Bond reduced being Subscribed by one Notar in a matter of Importance d. 135 A Bond whereof the Term of payment was long after the Date and Annualrent to be payed in the interim Found Heretable quoad fiscum d. 39. Bonds granted on Death bed d. 402. d. 449. Bonds of provision undelivered tho prior in date but posterior in delivery cannot affect the Fee interveening d. 129. BONORVM d. 282. BOOKING of Seasins see d. 384. BOX of Journeymen see d. 70. BURGAL Lands see d. 22 d. 190. A Burges that is not Incola see d. 430. BURGHS of Barony see d. 395. BURGHS Royal. see d. 78. d. 124. d. 190. If Burghs Royal cannot fine Unfreemen for Tradeing but only Charge them to desist d. 79 C. CAPER see d. 247. CAPTIONS see d. 127. CAVSA data non secuta d 308. CAUTIONER see d. 26. d. 31. d. 50. d. 55. d. 121. d. 122. d. 147. d. 213. If Cautioners may take Assignation and burden the Cocautioners with the whole Debt d. 212. d. 228. If Cautioners will be liberate when Magistraters are Lyable loco Rei ex delicto d. 91. CERTIFICATION in Improbations d. 210. d. 230. Certification in an Improbation of an Old Comprysing not sustained d. 50. Certification pro confesso see d. 243. Certification in an Improbation being Extracted production of the Writt immediatly thereafter will not Repone against the same d. 80. Certification in an Improbation not granted where the Defender produced a more Eminent progress than the Pursuer untill that were discussed d. 113. In a CESSIO bonorum The ordinar Oath runs in thir Terms That the Bankrupt had made no fraudulent Right since the subscribing of the Disposition d. 292. CHAMBERLANES see d. 37. CHARGES upon six days benorth Dee d. 222. CHILDRENS Provisions d. 344. d. 373. see d. 418. d. 437. CIRCUMDUCTION of the Term. d. 307. Circumduction of a Decreet Reponed against as to Personal but not as to Real Execution d. 98. CITATION d. 243. see d. 232. d. 367. Citation of Parties out of the Country d. 170. CLAUSE cum Curiis Bloodwitis see d. 5. The Clause cum Molendinis multuris Importeth freedom from Astriction d. 1. Clause de non alienando d. 136. Clause in favours of a Husband and Wife and their Heirs makes the Husband Fiar as persona dignior d. 85. Clauses of Conquest d. 359. Clauses of Conquest how to be understood in Contracts of Marriage d. 9. COALS see d. 220. Coals constant and casual Rent how modified d. 175. COLLECTORS Fee see d. 65. COLLEGIAT Church see d. 112. COMMISSARY-Court see d. 314. Commissaries see D. 221. COMMISSION see d. 207. d. 208. Commission for taking of a Strangers Oath in Holland sustained tho not subscribed by the Party being Subscribed by the Judges there d. 239. COMMISSIONERS see d. 188. COMMUNION betwixt Husband and Wife d. 136. see d. 302. d. 315. COMMUNITY and Pasture and casting Peats and Truff d. 149. COMPENSATION d. 191. d. 326. d. 366. see d. 200. d. 211. Compensation a quo tempore to be sustained d. 309. Compensation against a Comprysing d. 362 Compensation when granted against an Assigney upon a Debt of the Cedent d. 3. COMPETITION betwixt Assigneys and Arresters d. 201. Competition betwixt Donator and Creditor d. 249. Competition betwixt a Compryser and an Annualrenter d. 328. Competition betwixt Creditors and Children d. 384. Competition of double Rights see d. 279. Competition of posterior Creditors with Creditors by Bonds without an Onerous Cause d. 438. Competition of Heirs and discussing d. 69. COMPOSITION see d. 174. COMPRYSING d. 235. d. 251. d. 439. d. 458. see d. 24. d. 44. d. 63. d. 83. d. 133. d. 211. d. 230. d. 203. d. 385. d. 362. d. 374. Comprysing of a Wadset d. 330. Comprysing upon a Charge to enter Heir Null the person at whose instance the charge was having no Right to the Debt the time of the Charge but acquired thereafter d. 47. Comprysing upon a Heretable Bond without Requisition sustained d. 22. Comprysing does not extinguish a Wadset d. 134. Comprysings before the Year 1652. not regulat by the Act Debitor and Creditor d. 60 A Compryser upon Debts anterior to the Debitors Rebellion being Infeft before Year and Day is preferable to the Donator of the Liferent Escheat d. 178. COMPT-Books of Merchants d. 452. CONDITION see d. 18. d. 32. Condition Resolutive see d. 397. Conditions copulative d. 423. Conditions in Contracts of Marriage si non sint liberi c. d. 364. CONDVCTIO Rei dubiae see d. 108. Couductores
107. Heirs of Conquest see d 295. Heirship Movable see d 151 d 209. HERITABLE see d. 39. Heritable Bonds decided to belong not to the Heirs of Line but of Conquest d. 295. HOMOLOGATION see d. 27. HORNING d 253 d. 422. see d. 59 d 222. d. 406. HUSBAND see d 85 d 100 d 105 d 125 d 144. d. 182 d 315 d 319. d 336. Husband and Wife and how far her Oath will oblige him d. 71. A Husband conveened for his Wifes Debt d. 332. A Husband taking burden for his Wife d. 257. A Husband Lyable for the Wifes Debt in quantum lucratus But an ordinary Tocher being ad sustinenda Onera Matrimonii is not Lucrum d. 10. HYPOTHEQUE see d. 420. I IACTVS Retis see d. 220 IMPENSAE necessariae not allowed to a Compryser in a Declarator that he was satisfied by Intromission d. 133. IMPROBATION d. 168. d. 196. d. d. 230. d. 339. d. 262. d. 286. d. 385. d. 386. d. 456. see d. 42. d. 50. d. 80. d. 113. d. 145. d. 163. d. 210. d. 265 d. 278. d. 291. d. 403. In an Improbation an Extract out of the Books of an Inferior Court does not satisfie the production d. 285. Improbation of Executions before Inferior Judges d. 444. Improbation of poinding will not elide SpuilÈe being proponed at advising of the Cause d. 73. INCORPORATION see d. 152. INFEFTMENT see d. 100. d. 160. d. 399. INFEFTMENT of Annualrent see d. 83. Infeftment of Annualrent and personal action thereupon d. 407. Infeftment of Annualrent made publick by a poinding of the Ground d. 341. Infeftment of Warrandice base to be holden of the Granter preferable to a publick Infeftment of property granted thereafter holden of the Superior and cled with possession diverse Years and the possession of the principal Lands is interpreted the possession of the Warrandice Lands d. 15. INFERIOR Judges see d. 279. d. 294. d. 406. d. 444. INHIBITION d. 213. d. 254. d. 413. Inhibition against a Wise d. 264. Inhibition at the Instance of the Heir of a Marriage d. 214. Inhibition upon a Dependence d. 36. Inhibition upon an obligement to Warrand d. 116. d. 117. Inhibitions do not affect Renounciations so that the Debitor in a Wadset may pay his Debt and take a Renounciation tho the Creditor Granter be inhibited d. 96. INNOVATION d. 240. INSTITORIA Actio see d. 319. INSTRUMENT of Requisition must be perfected and cannot be supplyed by an unsubscribed minute after the Notars decease d. 102. INSTRVMENT Bellica see d. 132. Instrumenta quae in quibusdam sapiunt naturam Testamenti in alijs naturam actus inter vivos cui Juri ascribenda sunt d. 103. Instrumentum penes debitorem repertum see d. 428 INTERDICTION d. 381. d. 382. see d. 29. d. 34. INTERRUPTION d. 216. INTROMISSION d. 221. d. 224. see d. 67. d. 133. d. 137. d. 187. d. 199. d. 223. d. 205. d. 404. INVENTAR see d. 97. IOURNEY-MENS keeping of a Box. d. 70. JUDGES see Declinator JVRAMENTVM in Litem see d. 322. d. 447. JURISDICTION see d. 279. Jurisdiction of a Bailif of Regality d. 131. JVS Mariti see d. 123. Jus praesentationis see d. 112. Jus Relictae d. 315. Jus superveniens d. 128. Jus tacitae Hypothecae how far competent to the Master of the Ground d. 329. K. KEEPING of Writs d. 451. Keeping of Writs of Lands where there is a joint interest allowed to him who offers Caution to the other portioners d. 227. KINGS Decreet arbitrall see d. 229. KIRK see d. 112. Kirk-Lands see d. 93. L. In LECTO d. 443. see d. 40. d. 157. d. 186. d. 193. d. 353. d 402. d. 449. A LEGACIE left upon condition subsists tho the Condition did not exist when there is praesumptio voluntatis Testatoris d. 18. d. 32. LEGATORS d. 378. see d. 181. d. 402. LEGATVM of a Heretable Sum. d. 197. LETTERS of Horning upon the decreets of Inferior Judges d. 406. LIFERENT see d. 9. d. 33. Liferent Escheat see d. 198. A LIFERENTER of the whole must entertain the Fiar tho only appearand Heir the time of the entertainment d. 95. LITISCONTESTATION see d. 74. d. 119. d. 246. LOCVS poenitentiae d. 192. LOOSEING of Arrestment d. 300. LORD of the Outter house adviseing probation d. 445. Lords of Session see d. 180. see Trial. Lords of Session their Letter to the King d. 218. The LYON sustained Judge Competent in an Action against a Messengers Cautioner for damnage and interest d. 30. M. MAGISTRATS of Burghs see d. 91. Magistrates of Burghs are not obliged to officiate longer than one year d. 124. Magistrats takeing Assignation to a debt for which they were lyable subsidiarie do come in place of the principal and the Cautioner is liberate d. 147. Magistrats lyable for the Negligence of their predecessors an Incorporation being persona quae non moritur d. 152. MANDATVM excedens how far Lyable d. 259. MARRIAGE d. 415. see d. 202. d. 327. MASTER of the Ground see d. 329. MENSAL Kirk see d. 325. MERCES see d. 220. MERCHANTS see d. 452. A Merchant's current accompt does not prescribe d. 318. MESSENGER see d. 235. METVS see d. 419. A MILN-DAMN cannot be drawn from one side of a Burn to another without consent of the Heritor having Lands on the other side or a Servitude d. 87. MINISTER see d. 25. d. 112. d. 229. d. 256. Ministers Stipend d. 398. MINOR see d. 61. d. 72. d. 88. d. 216. d. 321. Minor non tenetur placitare competent against Declarators of Right but not when the Minor is pursued in a Molestation where a pursuer is in possession d. 64. A Minor Cautioner for his Father in a Bond Null d. 26. d. 31. d. 55. MINORITY excluded It being offered to be proven that the Minor was then a Traffiqueing Merchant d. 360. Minority and Lesion d. 369. MODIFICATION of Expences d. 281. Clause cum MOLENDINIS Multuris see d. 1. MOLESTATION see d. 64. MOOR see d. 86. MORTIFICATION d. 379. Mortification for a Library Keeper to the Colledge of Aberdeen d. 269. d. 27. MOVEABLE Bond. d. 424. Moveable Heirship see d. 209. Moveable Sums see d. 342. Moveables Disponed to a Wife with the burden of the Debts and that they shall be affected with the same yet the Property thereof is settled in the person of the Wife d. 320. MUIR see Moor. MULTURES see d. 58. d. 293. N. NAVTAE Caupones c. If it takes place in the case of a Horse stollen out of the Park it being told the Pursuer that the Keeper would not be Answerable d. 104. NEAREST of Kin. see d. 389. NEGOTIORVM Gestor d. 357. NON Creditur Referenti nisi constet de Relato how to be understood d. 347. NON ENTRY see d. 28. d. 273. NON Memini d. 245. NOTAR see d. 102. d. 135. NOTARS Subscription in subsidium wanting the solemnity de mandato if Null d. 81. NOVATION see d. 240. O. OATH d. 453. see d.
the Forefaulture and Commission and Disposition made by vertue thereof and ratifying the same and conform thereto giving and Disponing the Lands therein-contained Ripae Ripatica USus Riparum est publicus cuilibet licet naves ad eas appellere Ripae enim hanc servitutem debent flumini cujus usus sine usu riparum nullus est servitus ista a natura imposita videtur ut usu fluminis concesso ea concessa intelligantur sine quibus eo uti non possumus Jus Fluviaticum p. 28. n. 362. Ripatica penduntur pro trajectione quae navi fit ab una Ripa in aliam sunt omnia Emolumenta reditus quae Princeps capit in Ripis fluminum vectigalia scilicet potestas cogendi ad muniendas Ripas Idem p. 30. n. 375. Quando Dies cedit in Grass Roums when there is Question betwixt Fiars and Liferenters IT being the Custom of the Country in some places That Lands consisting of Grass-Roums are Yearly set from Whitesunday to Whitesunday thereafter for payment of a Silver Duty at Martinmass after they are set Quaeritur Therefore If the Fiar survive the Whitesunday but dieth before the Martinmass if he will have any part of the Martinmass Duty Or if it will belong entirely to the Relict Liferenter or next Fiar Answer It is thought That he nor his Executors would have no part of that Duty being payed for the said Year betwixt Whitesunday and the next ensueing Whitesunday Seing he deceased as said is before Dies either cessit or venit Monmouth In some places Grass-Roums are set from Whitesunday to Whitesunday but the Term of Payment is Candlemass and Lambmass Quaeritur If the Fiar decease after Martinmass after it is set but before the first Term of Payment if he will have any part of that Years Duty Answer It is thought he will have the half and what ever be the Term of Payment Dies cedit at Martinmass for the half Year preceeding Seing for the Duty of Corn-lands though payable betwixt Yule and Candlemass yet Dies cedit at Whitesunday and Martinmass as in the Question foresaid Quaeritur What is the reason of so great difference betwixt these and Grass-Roums Answer That the Duty being payed for the Cropt the Terms of Whitesunday and Martinmass are respected so that the Fiar surviving Whitesunday his Executors have Right to the half of the Year upon that consideration as appears because the Lands are then fully laboured and Sowen and whoever survives Martinmass has Right to that Terms Duty because the Cropt is then fully collected But as to Grass-Roums set as said is at Whitesunday to Whitesunday thereafter the Grass only is to be considered which upon the matter is the Cropt of these Roums and the reason why the Duty of the whole Year is payed at Martinmass appears to be that before Martinmass the Grass-profites are collected by selling of their Wool and Beasts at or before that time Quaeritur If the Fiar decease after Martinmass and has not uplifted the Duty will the same divide betwixt him and the Liferenter And if he has uplifted the same if his Executors would be Lyable to refound the half to the Liferenter Answer Cogitandum For if it be not uplifted it appears reasonable that the Liferenter should have the half and if it be uplifted it appears hard that the Fiar having uplifted the same Jure suo bona fide should be Lyable to render any part of the same specially seing the Liferenter may have the same advantage if she should decease after Martinmass If Corn Roums should be set in the same Terms That the Duty should be payed at Martinmass after they are set Quid Juris Seing the said payment will be before the next Cropt and the Fiar may die before both the Terms of the next Year for which the Duty is due Answer It is thought that the Fiar cannot set the said Lands in manner foresaid in prejudice of the Liferenter And if the Tennent take the same that way it is upon his own hazard And the Liferenter would force him to pay the Duty after the ordinary Terms of the Country Quaeritur If a Tennent have a Liferent-Tack and he Die after Whitesunday If the Tack will not continue for that Year Seing the time of Removing of Goods necessary for labouring is past before his decease and Roums being set from Whitesunday to Whitesunday annus coeptus as to Labouring habetur pro completo Vide Annuum Legatum Quaeritur If there be not the same reason as to Liferenters in Labouring or possessing the Land with their own Goods seing their Executors cannot remove the Goods after that time and the Year of the Liferent is begun S. Act Salvo QVaeritur If Ratifications in Parliament with the Clause That they should not be Lyable to the general Salvo Will prejudge a third Petson having undoubted Right and having been secured by a general Law viz. The Act Salvo Jure The Ratification being only a private Act and the persons concerned not being called Seasin A Posterior Seasin but first Registrate whether will it be preferred to the prior Seasin Registrate thereafter though debito tempore Registration of Seasins IF a Seasin of Reversion granted by a Bishop will militate against the Successor albeit it be not Registrate in the Register of Seasins Ratio Dubitandi The Bishop doth not succeed as Heir And yet he cannot be said to be a singular successor and Bishops they are Corpora singula Special Services and Precepts of Clare constat A Person being served Heir-male or Provision in special in certain Lands and deceasing before he be Infeft Quaeritur If his general Heirs will be lyable to the Debt of that person to whom he was served Special Heir The same Question may be moved upon a Precept of Clare constat whereupon Infeftment has not followed seing in neither of the said cases there is Aditio Haereditatis before Infeftment whereas in general Services there is Aditio as to any Estate whereupon there is no Infeftment Servitude and Extinguishment thereof IF a Person who has Right to a Servitude out of other Lands should acquire also Praedium Serviens Quaeritur If eo ipso that he has Right both to Praedium Dominans Serviens the Servitude doth extinguish Quia res sua nemini servit and if he should thereafter Dispone Praedium Serviens whether the said Servitude not being reserved either he or his singular successor in the Right of the other Lands can claim the same Or if he should Dispone praedium Dominans without mention of the Servitude but with all Liberties and pertinents whether will that Servitude revive as being only Sopita for the time while both Lands belonged to one person but not extinct by any Discharge or deed freeing the Lands of the same If a person has constitute by Writ a Servitude and thereafter Dispone his Lands without excepting of the same Quaeritur If