are grantted where the persons live at a great distance and the matter is of Small moment By granting of which Commissions the Petitioners are frustrate of the Dues payable to them in case the Parties and Witnesses did come here and Depone before the Lords and therefore craving that they might have their Dues for Parties and Witnesses where they are Examined by Commission which being taken to consideration by the saids Lords they Ordain that in time coming where Commissions shall be granted by the Lords for Examining Parties or Witnesses that the Macers shall have the half of the Dues which are payed to them when Parties and Witnesses do compear before the Lords and Depone viz. twelve shilling scots for ilk Party to be Examined by Commission to be payed in manner following viz. where a Commission is granted for taking a Parties Oath that the Dues be payed to Francis Scot Keeper of the Minut-book within fourty eight hours after the Commission shall be put up in the Minut-book and in case the same be not payed within that space that the Commission shall be delet out of the Minut-book and not Extracted until the same be put up again and the Dues payed and that the saids Dues for Witnesses be payed at the return of the Report and Commission before an avisandum be put up thereof in the Minut-book And to the end the number of the Witnesses may be known that the Person to whom the Commission is granted shall set down upon the back of the Commission or Report a list subscribed by him of the Witnesses names and the Clerks are hereby Ordered to insert in the Commission a Warrant to the Commissioner to transmit that list with the Report of the Comission and that Francis Scot attest under his hand that payment is made to him of the saids Dues before an avisandum be put up of the Report in the Minute-Book ACT anent Seasins and Reversions of Lands within Burgh February 22. 1681. THE Lords of Council and Session considering that the Act of Parliament 1617. anent the Registration of Seasins and Revâ—rsions of all Lands and Annualrents there is an exception of Land and Annualrents lying within Burgh and within the Burgage Lands of Royall Burrows which is supposed to have been upon account of the Books of the Town Clerks of Royal Burrows wherein the Seasins and Reversions of such Lands might be found Nevertheless the Lords finds that not only Seasins within Burgh are sometimes omittâ—d and not found insert in the Town Clerk Books But that frequently Reversions of Tenements and Annualrents within Burgh and Assignations to and Discharges of Reversions and Bonds for granting such Reversions are not to be found in the saids Books to the great detriment of the Leidges and especially of the Inhabitants of the saids Royal Burrows For Remeid whereof the Lords do appoint and ordain the Magistrates of Royal Burrows and their Successours in Office to take good Caution and Surety of their Town Clerks that now are or shall be in Office that they insert in their Books all Seasins of Lands Tenements and Annualrents within their respective Burghs or burrow-Burrow-lands and of all Reversions Bonds for granting Reversions Assignations to and Discharges of Reversions Renounciations and grants of Redemption of any Tenements or Annualrents within their Burghs or Burgage Lands that shall be given at any time hereafter within the space of threscore dayes from the dates thereof respective in like manner as is prescribed by Act of Parliament anent the Registration of Seasins or Reversions of Lands without Burgh and that the said Surety be under the pain of the damnage that shall befall to any Party through the Latency of the saids Writes which shall be past by the saids Clerks or presented to them to be insert in their saids Books Likeas the Lords ordains the saids Magistrates to insert an Act hereupon in their Town Court Books and to cause publish the same by Tuck of Drum that none pretend ignorance And further the Lords do Declare that if any Party shall neglect to insert their Seasins Reversions Bonds for granting of Reversions Assignations to and Discharges of Reversions Renounciations and grants of Redemption in manner foresaid that the Lords will hold and repute them as latent and fraudulent Deeds keeped up of design to deceive and prejudge the Purchasers of Tenements and Annualrents within Burgh bona fide for just and onerous Causes and ordains the Provost of Edinburgh to intimate this Act to the Commissioners of the Royal Burrows at the next Convention of Burrows And ordains thir Presents to be Printed and Published at the Mercat Cross of Edinburgh and other places needful CERTAIN DECISIONS Of several Debates Intented and Debated BEFORE THE LORDS OF COUNCIL SESSION IN Some Weighty and Important Affairs brought before them Beginning the 29. of June 1661. and ending in July 1681. Iames Talzifer contra Maxtoun and Cunninghame Iune 29. 1661. IOHN KER Merchant in Edinburgh having an Wodset-Right of some Tenements in Edinburgh William Clerk his Creditor Comprized the Wodset-Right from him and obtained Decreet of Removing against the Tennents of the Tenements Iames Tailzifer having Right to the Reversion of the said Wodset consigned the Sum for which the Wodset was granted in the hands of the Clerk of the Bills and thereupon obtained a Suspension of the Decreet of Removing and thereafter having obtained Right from William Clerk to his Appryzing did by Supplication desire the sum Consigned by him to be given up to himself 1. Because the Consignation was not orderly made conform to the Reversion And 2. Though it had been orderly yet before Declarator he might pass from the Consignation and take up his Money whereby the Wodset Right wouâ—d remain unprejudged 3. The Wodset-Right being now returned to himself by acquiring Clerks Appryzing he had thereby Right to the sum Consigned for Redemption of the Wodset Compearance was made for Maxtoun and Cunningham for whom it was alledged that the consigned Sum ought to be give up to them because before William Clerks Appryzing they and William Clerk had joyntly obtained from the King a Gift of the Escheat and Liferent of the said Iohn Ker who had been year and day at the Horn before Welliam Clerk Appryzed from him so that the sum Consigned being now moveable fell under Kers Eâ—cheaâ— and thereby they have Râ—ght to two third parts thereof and Clerk or Tailzifer by his Right can only have the other third and if the Sum were not â—ound to fall under Kers Eâ—cheat the Annualrent thereof during Kâ—rs 〈◊〉 would fall to the three Donators of his Liferent equally and the â—um ought to be given out in security to them for their Liferent and to Tailzifer as having Right to Clerks Appryzing in Fee except the third thereto Clerk had Right as joynt Donator with them neither could Tailzifer pass from his Confignation seeing thâ—y accepted thereof nor could he object against any informality in the
Few-dutie produced he acknowledged the Pursuer to be Proprietar 2dly If any such Back-bond was no way granting the same he offered him to prove that it was Conditional so soon as the said Umquhile Robert Lord Kirkcudbright should require Ita est he has never required The Defender alleadged he had done the equivalent because in a Double Poynding formerly pursued be the Tennents he had craved Preference and the Pursuer alleadged upon the Condition of Requisition in the Back-bond and also that be the Back-bond the granter and his Wifes Liferent was preserved whereupon the Defender was excluded The Lords â—â—und the Alleadgeance of the said Double Poynding was not Equivalent to the Requisition and therfore found the Replyes Relevant and Assigned a day to the Defender to produce the Back-bond and to the Pursuer â—â—â—â—prove the Qualitieâ— thereof and so found the Reply not to acknowâ—â—ge the Defense but reserve it to either Partie to alleadge contra â—oducenda and found the Personal Obligdement sufficient to dâ—bar the Purâ—â—â—â— albeit the Defender had no other Real Right seeing thereby she was oblidged to grant a Real Right to the Defender Alexander Barns contra Applegirth Ianuary 1. 1662. ALexander Barns having Conform to the Act made by the Iudges obtained Letters of Horning Summarily at his Instance as Heir to his Brother Iames Bâ—rns upon production of his Retour and a Bond granted by Iohnstoun of Applegirth and thereupon having Denunced him and Apprized his Lands Applegirth Suspends on this Reason because the foresaid Act of the Iudges was now Void and by the late Act of Parliament confirming their Judicial Proceedings liberty is granted to quarrel and reduce them upon Iniquity and this was Iniquitie to charge him Summarily contrair to Law The Charger answered non Relevat because he followed the Order in use at that time and the liberty of Quarrelling is for Unjustice in the Matter and not in the Order of Procedor for then all their Debates would be null because they proceeded not upon Continuation and Letters The Lords sustained the Charge as a Libel to the effect the Suspender might have his Defenses if he any had to be proven not iâ—stantlie but upon Terms but declared the Apprysing should stand valid for whatsomever was found due but prejudice to the Horning as accords Sir Alexander Hoom of St. Bathanes contra Orr and Pringle Ianuary 3. 1662. SIr Alexander Hoom of Saint Bathanes having pursued Improbation and Reduction upon Inhibition against Iohn Orr and Wateâ— Pringle and insisted for all Writs of the Lands in Question made to the Defenders Predecessors and Authors of the Lands in Question and the Defender having alleadged no Process for Writs made to his Authors unlesse they were called and having condescended particularly on the Authors to be called The Pursuer offered him to prove that these Authors were fully denuded in favours of the Defender and that the Writs were in the Defenders own hands The Defender answered non Relevat though they were in his hands because his Authors being lyable for warrandice ought to be called to defend there own Rights The Pursuer answered the Defender might intimate to them the Plea The Defender answered he was not oblidged to Intimate the Plea but the Pursuers to call the Authors in this Case the Summonds was sustained for his Authors Writs in Anno one thousand six hundred fiftie nine Years And now the Pursuer insisting for the Defender taking a second time to produce The Defender having a reviewe of the said Act and Interlocutor The Lords reponed the Defender and would not sustain the Pursuit or Act as to the Authors Rights uncalled Tippertie contra his Creditors Eodem die Innes of Tippertie being charged by several of his Creditors Suspends and alleadged payment made by the Suspenders Son to them The Chargers answered non Relevat because they declare the Charge to be to that Sons behove who payed them so that they must alleadge it was payed by his means The Suspender Replyed That seeing they declared it to be to his Sons behove the payment was sufficient because he offered him to prove by a Transaction the Son was oblidged to pay his Debts The Charger answered denying any Transaction if it were proven the Suspender behoved to instruct his part of it performed The Lords found the Reasons and Reply relevant reserving the said alleadgance against the Transaction when produced James Seaton contra Anothonie Rosewall Jannuary 4. 1662. JAmes Seaton and others pursue Anthonie Rosewall to hear it found and declared That two Apprysings to which he had right were fully Satisfied by his and his Authors Intromission within the Legalls respective in the Compt. The Defender alleadged he was only comptable according to his intromission conform to the Act of Parliament one thousand six hundred twenty one anent Apprysings and not according to a Rental of the Lands as they payed when he entred The Pursuers answered that that they could not charge him by his Yearly Intromissions which they could not know but he behoved to charge himself with the Rent of the Lands as they payed at his entrie thereto and if any Deductions or Defalcations were in subsequent Years by necessary setting of the Lands at a lower Rate poverty of the Tennents or waste he behoved to condescend there upon and their the Reasons and Veriâ—ty thereof for in Law an Appryzing giving jus pignoris pratorij the Appryser is comptable for his Diligence having once entered in Possession and thereby excluded the Debitor and Con-creditors from the Possession It were against Law and Conscience to say That if he should abstain and suffer the Tennents to keep the Rent or Depauperat or the Lands to be waste without any Diligence that his Legall should thereby expire and the Debitor and Creditor should be excluded as was found in the Case of the Earl of Nithisdale and Countess of Buckcleugh and was several times so found be the Lords before The Lords found the Defender comptable by a Rental as the Lands payed the time of his Entry but Prejudice of his just Defalcations he clearing a reasonable Cause thereof and proving the truth of the same for they thought that albeit Apprizers are only comptable for their Intromission That is only for such parts of the Lands as they intend only to possesse and not for these they never possest yet in so far as they once entred to possesse they must do Diligence It was further alleadged that no allowance ought to be given to the Defender of a Composition he had given to the Superiour in respect a prior Appryzer had given a Composition before and so he was oblidged for none The Defender answered that both the Prior and Posterior Composition was within a Years Rent which was due to the Superiour which the Lords allowed seeing it was not alleadged that the Composition of a Years Rent was discharged by the Superiour but only according to the Custome of the Burgh where the Lands
Nottar as Town Clerk for the time The Lords sustained the alleadgeance to prefer Mackitrick The Executors Mr. Iames Fairly Minister of Leswald contra the Parochiners Iuly 5. 1662. THE Executors of Mr. Iames Fairly having obtained Decreet before the Comissaries against the Parochiners for the Ann as being the hail Year 1658. In respect the Minister died in February in the Year 1658. The Decreet was Suspended on this Reason that the Ann could only be half a Year seeing the Minister died before the Sowing of the Cropt or Whitsonday because if a Minister serve after Whitsonday he has the half of that years Stipend albeit he be Transported or Deposed otherwayes if a Minister should serve the whole Year till Michalmass day and then be Transported or Deposed he should get nothing so that the Ann being half a years Stipend more then the Minister served for he having only survived till Michalmes 1657. Has only the right to the Michalmes proprio jurae and half a Year thereafter as the Ann. The Charger answered That in Teinds and Stipends there are not two Terms but Michalmes for all and therefore if the Incumbent be disposed or transported before Michalmes he has nothing that Year but if he die after Michalmes any time before the beginning of the nixt Year proprio jure he has the Year he died in and the half of the next as his Ann but if he live till Ianuary in the year ensuing he has that whole year as his Ann. Which the Lords found relevant and therefore the Lords found the Letters orderly proceeded Duncan Drummond contra Colline Campbel Eodem die DVncan Drummond pursues Colline Campbel for payment of a Debt of his Fathers because in a Writ betwixt his Father and him The Father had Disponed all his moveables to him and he had undertaken his Fathers Debt whereby the Pursuer as Creditor had interest to pursue him to pay this Debt The Defender having alleadged that the Band and Disposition was never a delivered Evident either to the Father or to the Son but two blanks subscribed by them both were put in the hands of a Nottar to fill up the Bond and Disposition but before delivery both Parties resyled and desired the Nottar to Cancell and Destroy them yet Eight or Nine Years after the Nottar gave them up to this Pursuer and neither to the Father nor to the Son and the Question being how this should be proven The Lords before answer Ordained the Nottar and Witnesses insert to be examined ex Officio which being done their Testimonies proved as is alleadged before Then the Question was in jure whether the Depositation of Writs could be proven any other way then by the Oath of the Partie in whose favours the Writs were conceived he having the same in his hands The Lords found that seeing these two Writs were not produced by the Father nor the Son by and to whom they were mutually granted but by a third Partie in whose favours a Clause therein was conceived in that case the deposition probable by the Writer and Witnesses insert and by the saids Testimonies found the Writs null Robert Bones contra Barclay of Iohnstoun Iuly 9. 1662. RObert Bones having arrested certain Goods and Bestial as belonging to Iohn Wood his Debitor in the hands of Barclay pursues for making the same forthcoming The Defender alleadged absolvitor because the Goods Lybelled the time of the Arrestment were the Defender proper Goods Disponed to him by the said Iohn Wood for anterior Rests and Debts and delivered also before the Arrestment It was Replyed The Defense ought to be repelled because Wood the Disponer was Rebell and at the Horn before the delivery of the Goods at the Pursuers instance and whereby the Tradition being after the Horning the Disposition is null as being incompleat before the Horning and after the Horning the Rebel could do nothing to prejudge the KING or his Donatar or the Pursuer for the Debt whereupon he was denuded which by the Act of Parliament one thousand six hundred twenty one affects the Escheat Goods ubicunque The Defender answered That the Reply is not Relevant unless it were alleadged that the Horning had been before the Disposition for it is lawful for Creditors either to Poynd Arrest or take Dispositions of their Debitors Goods though Rebel being for Debts anterior to the Horning if the Disposition and Delivery be prior to Declarator neither can the Act of Parliament one thousand six hundred twenty one against Dispositions in defraud of Creditors operat here because the Disposition is anterior to the Horning and for an onerous cause The Lords found the Defense Relevant notwithstanding the Reply Laird of Lamertoun contra Hume of Kaimes Iuly 10. 1662. HOom of Kaimes being Infeft upon an Appryzing of the Lands of Northfield led against Lamertoun pursues the Tennents for Mails and Duties and obtains Decreet which was Suspended and Reduction thereof raised on this Reason that it was spreta authoritate judicis there being an Advocation judicially produced before the Sheriff before pronouncing at least before the Extracting of this Decreet in so far as the Suspender came to the Sheriff Court at the ordinar time of the Court Day at eleven hours and produced the Advocation but the Sheriff had fitten down that Day contrair his Custom at ten hours and had pronounced the Decreet before eleven hours The Charger answered non Relevat that the Advocation was produced before Extract not being before Sentence pronounced because albeit inferiour Judges are accustomed sometimes to stop their own Decreets after they are pronounced before Extracting yet sententia definitiva est ultimus actus judicis and the Extract is but the Clerks part so that it can be no contempt albeit the Judge would not prohibite the Extract and as to theâ— other Member that the Sheriff sat his Court an hour before the ordinar time non Relevat unless he did it of purpose to anticipat this Advocation The Lordâ— found the first member of the Reason that the Advocation was produced before Extract after Sentence non Relevat and as to the other member they found it relevant as it is circumstantiat to infer that it was done of purpose to anticipat the Advocation without necessity to prove otherwayes the purpose and in that case declared if the same were proven they would turn the Decreet in a Libel Iohn Ker contra Ker of Fernilee and others Eodem die IOhn Ker having granted a Bond whereupon he being Charged to Enter Heir to several persons his Predecessors and having renounced their Lands were adjudged John took Assignation to the Adjudication himself and pursues the Defenders for exhibition of the Rights and Evidents of the Lands and Delivery thereof The Defender alleadged absolvitor First Because the pursuit being upon the Pursuers own Bond now again Assigned to himself confusione tollitur obligatio The Lords Repelled this Defense Secondly absolvitor because the Pursuer can have no Interest upon
was Sealed although it mentioned former Requisitions that was but the assertion of the Nottar or of the Keeper of the Register and therefore preferred Nasmiths Gift Andrew Clapertoun contra Lady Ednem December 11. 1662. IN Anno 1621. Umquhile Sir Iohn Edmistoun of Ednem granted a Bond of Provision to Iean Stirling of two Bolls of Victual which he obliged himself to pay to her out of the Mains of Ednem or any other of his Lands by vertue thereof she was in Possession out of the Mains of Ednem till the year 1640. Andrew Clappertoun her Son and Assigney pursues the Lady Ednem as Intrometter with the Rents of the Mains of Ednem to pay the Pension since The Defender alleadged Absolvitor because she stands Infeft in the Mains of Ednem by vertue of her Liferent and thereupon has possessed and the Pursuers Pension is meerly personal and does not affect the Ground nor is valid against singular Successours and though conceived in the best way can have no more effect then an Assignation to Mails and Duties which operats nothing against singular Successors unless it had been an Ecclesiastical Pension clothed with Possession having Letters conform which only is valid against singular Successors The Lords found the Defense Relevant Iohn Oglvie contra Sir Iames Stewart Eodem die PAtrick Leslie and several Cautioners granted Bond to Sir Iames Stewart who assigned the same to John Denholme who used Execution in his Cedents name and took some of the Debitors with Caption and being in the Messengers hands this Iohn Ogilvie assisted to the making of their escape and thereupon being incarcerat by the Magistrats of Edinburgh which concourse of their Authority by their Officers as use is in executing Captions within Edinburgh by aggrement the said Iohn Ogilvie payed 800 lib. to be free and thereupon obtained Assignation from Sir Iames Stewart to as much of the Bond with warrandice from Sir Iames own deed and excepting from the warrandice an Assignation formerly made by Sir Iames to Iohn Denholme Iohn Ogilvie having pursued one of the Debitors he was assoilzied upon a discharge granted by Sir Iames Stewart and Iohn Denholme and they both with one consent whereupon Iohn Ogilvie charged Sir Iames upon the Clause of Warrandice who Suspended and alleadged that the foresaid discharge was nothing contrair to his oblidgement of Warrandice because in the Warrandice Iohn Denholmes Assignation was excepted and consequently all deeds done by Iohn as Assigny Ita est this discharge was granted by Iohn Denholme and would be valid by Iohn Denholme subscription and there was no prejudice done to this Pursuer by Sir Iames Stewarts subscription seing without it the discharge would exclude him The Charger answered that Iohn Denholme subscribed but as Contenter and was not mentioned in the discharge as Assigney The Suspender answered that the discharge being with his consent was as effectual as if he had been principal Partie and each of them discharged with others consent The Lords found the Reason of the Suspension relevant George Loggie contra Peter Loggie Eodem die GEorge Loggie having borrowed 800 merk from Peter Loggie his Brother gave a Wodset therefore The said George being an old man without hope of Children the Reversion was only granted to George and the Heirs of his own Body and his Liferent of the Wodset Lands was Reserved without mentioning of any Back-tack Dutie or Annualrent George having used an Order and Consigned the 800. merk obtained Declarator Peter Suspends and alleadges no Redemption ought to have been till the Annualrent were consigned with the Principal The Charger answered that the Contract of Wodset bare no Annualrent The Suspender answered that albeit it did not yet he having lent his Money in these Terms in hopes of Succession and his Brother having now Married a young Wife he ought not to take advantage of him seing the Annualrent is due in equitie for the profit of the Money The Lords in respect of the Tenor of the Contract of Wodset found the Letters orderly proceeded without any Annualrent and that in this case it could not be due without 〈◊〉 had been so pactioned and agreed Lord Balmirino contra Town of Edinburgh December 18. THe Lord Balmirino pursues the Town of Edinburgh for Spoliation of the Tynds of the Aikers of Restalrige whereof the Towns Hospital had a Tack which being expired Inhibition was used yearly for several years The Defender alleadged absolvitor from any Spuilzie of Teinds because since the KING' 's Decreet Arbitral and the Fyfteen and Seventeen Acts of Parliament 1633. Spuilzie of Teinds is taken away especially by the said Fyfteen Act. The Parliament Ratifies a former deed of the King 's Declaring every Heretor shall have the drawing of his own Teynd and the benefit of a Valuation and in the mean time so long as the Teynds are not Valued the Heretors are only lyable for the Fyft of the Rent in name of Teynd Secondly By a Contract betwixt the Town and the Pursuers Father of the Aikers of Restalâ—ige lyand runrig with these are set for half a boll beer the Aiker which is by the Contract Declared to be the just and true Rate and Value thereof which by necestar consequence declares the Value of the Teynds now in Question being runrig with the other The Pursuer answered to the first That the foresaid Act of Parliament was only meaned in relation to the KING'S Annuity and albeit the foresaid Clause therein be general yet it is clear by the 17. Act which is posterior that the first part shall be the Teynd after the Valuation duely led which hath been constantly allowed by Custom of the Commission of Plantations which gave only warrand to Heretors to lead their own Teynd during the Dependence of a Valuation and therefore Spuilzie of Teynds have been frequently sustained since the saids Acts As to the second whatever be the way of conception of the Tack for the other Aikers not in question be though it did acknowledge the same to be the just Value thereof yet it cannot extend to other Teynds seing where the Parties agree in the matter they are not solicitous for the conception of the words which cannot be drawn in consequence to any other matter The Lords repelled both these Defenses but declared they would not sustaine Spuilzie as to the Oath in Litem but admitted the Value of the Teynd to the Pursuers probation Reserving to themselves the modification of the prices if they should be exorâ—itantly proven but not of the quantaties Lady Tursapie contra Laird of Tursapie December 20. 1662. THE Lady Tursapie pursues the Laird of Tursapie who succeeded as Heir to his Brother her Husband for the Aliment of the Defuncts Family till the next Term after his Death and specially for the Alinent and to the Pursuers Son Heir appearand to his Father The Defender alleadged absolvitor because the Lybel was no wayes relevant against him as Heir but by the
would exclude none of the Casualities of the Superiority yet such Alienations exceeding the half of the Fee do unquestionably infer Recognition though the ingratitude be no more then this that the Vassal renders himself unable fitly to serve his Superior by delapidating his Fee or the Major part thereof how much more when he does all that in him is to withdraw himself from the Superiors Clientel by obtruding to him a Stranger alienating from him the whole Fee and albeit the Seasine be null as to other effects till it be Confirmed Yet as Craig observes in the foresaid place Vassalus fecit quantum in se erat 2ly Though by our Statute or peculiar Custom such Seasins unconfirmed are null yet by the Act of Parliament 1633. Anent Ward holdings Recognition is declared to proceed according to common Law which can be no other then the common Feudal Customs by which Customs it is sure that the Recognition is chiefly inferred by the Vassals alienation As to the implyed condition si Dominus consenserit though that were expresse yet the Vassal giving Seasine the Tradition of Seasine is inconsistant with such a condition being understood as a Suspensive condition for he that delivers Possession de facto cannot be said upon any condition not to deliver the same de facto and therefore it is but protestalio contraria facto and if it be understood as a resolutive condition as needs it must it impedes not the Alienation but only might resolve the same As to the Decision upon the not Registration of the Seasine una herundo non facit ver and albeit it might be a rule in that individual Case It cannot be extended ad alios casus although it were a Statute much lesse a Practick The Lords also repelled this Defense 4ly It was further alleadged by the Defender that Dirletouns Infeftment was granted by the KING Haeredibus assignatis quibuscunque and thereby the KING consented that he should dispone his Right to any Assigney or singular Successor and this Clause is equivalent to the ordinar Feudal Clauses Vassallo quibus dederit which is ever understood to exclude Recognition neither can this be understood to be stilus curiae as when Assigneys are casten in in Charters passing the Exchequer but this is an original Grant under the KINGS own Hand The Pursuer answered that this Defense ought to be Repelled because such Concessions contrair to common course of Law are stricti juris and not to be extended ad effectus non expressos praesertim prohibitos but the adjection of Assigneys is no ways to allow Alienations of the Fee without consent but to this effect because Feuda and Benficia are in themselves stricti juris and belong not to Assigneys unlesse Assigneys be expressed and therefore albeit no Infeftment had been taken the Disposition Charter or Precept could not be Assigned so that this is adjected to the end that those may be Assigned before Infeftment but after Infeftment Assignation hath no effect and this is the true intent of Assigneys In Dispsitions of Land it is clear when the Disponer is obliged to Infeft the Acquirer his Heirs and Assigneys whatsoever there is no ground whereon to compel him to grant a second Infeftment to a new Assigney but only to grant the first Infeftment to that Person himself or to any Assigney whatever which clears the Sense in this case It hath also this further effect that singular Successors thereby might have right to a part of the Lands which though it would not infer Recognition if done yet if there were no mention of Assigneys it would be null and as not done in the same Case as a Tack not mentioning Assigneys The Lords Repelled this also 5ly It was further alleadged that Recognition takes only place where there is contempt and ingratitude and so no Deed done through ignorance infers it as when it is dubious whether the Holding be Ward or not and therefore Recognition cannot be inferred seing there is so much ground here to doubt this Right being a taxed Ward and to his Heirs and Assigneys and it is not clear whether it would be incurred through a Seasine à se or to one in his Family whereupon the wisest of men might doubt much more Dirletoun being illiterate not able to read or write It was answered ignorantia juris neminem excusat 2ly Vbi est copia peritorum ignorantia est supina Here Dirletoun did this Deed clandistenly without consulting his ordinar Advocats or any Lawyers and so was inexcusable and if pretence of ignorance could suffice there could be no Recognition seing it cannot misse to be ignorance that any should do that Deed that will be ineffectual and losse their Right The Lords Repelled this Defense and all the Defenses joyntly and Decerned Lord Loure contra Earl of Dundee February 6. 1663. THe Lord Loure pursues a Reduction of a Disposition made by Carnegy of Craig to the Earl of Dundee as being posterior to the Pursuers Debts and in prejudice thereof upon the Act of Parliament 1621. against Bankrupts and for instructing of the Reason repeats the Disposition it self being betwixt confident Persons Cusing Germans and without cause onerous in so far as it bears Reservation of the Disponers and his Ladyes Liferent and Provision to be null if Craig have Heirs of his Body in whose favours Dundee is to denude himself upon payment of his expense The Defender alleadged that the Lybel is not Relevant Primâ— because Craig is no Bankrupt nor any Diligence done against him before the Disposition 2ly He is not insolvent by the Disposition because there is reserved to him a Power to sell as much of the Land as is worth 80000 lib. for Debt and so is not in fraâ—dm creaâ— oruâ— but the Pursuer ought to pursue for that Provision either by Appryzing or personal Action The Lords found the Reason relevant and proven by the tenor of the Disposition and therefore reduced to the effect that the Pursuer mâ—ght affect the saids Lands with all Legal Diligence for his Debt as if the Disposition had not been granted for they thought seeing by this Disposition there remains not Estaâ—e sufficient ad paratam executionem and that there was no Reason to put the Pursuer to insist in that Clause to restrict himself thereby to a part of the Land but that he ought to have preference for his Debt upon his Diligence affecting the whole Land William Montgomery contra Theoder Montgomery and Mr. William Lauder February 10. 1663. WIlliam Montgomery as Donatar to the Liferent-escheat of Theodor Montgomery pursues a special Declarator against the Tennents of Whit slide belonging to Margaret Hunter in Liferent and now to Theodor jure 〈◊〉 for their Duties It was alleadged that the Horning was null because the Dâ—bt was satisfied before Denunciation The Pursuer answered that it was not competent in the special Declarator to question the nullity of the Horning 2ly Though it were in a
therefore ordained them to Condescend Archbishop of Glasgow contra Commissar of Glasgow Feb. 14. 1666. THe Archbishop of Glasgow pursues a Declarator or to hear and see it found and Declared that Commissars ought to be persons qualified and able to judge according to Law and that if they be not they might be deprived by the Act 1609. empowering the Bishops then restored to appoint able and sufficient men Commissars in all time coming and by the Act of Restitution 1661. whereby the like power is granted excepting Commissars nominat by the King unless he be insufficient or malversant and subsumes that Mr. William Fleming is not sufficient nor qualified for that Place and also that by the injunctions given to Commissars mentioned in the Act 1609. there is no place for Deputs unless it were by special consent of the Bishops and craves that it may be declared that the said Mr. William may not Serve by a Depute The Pursuer insisted on the first member It was alleadged for the Defender that he had his Place both from the King and Bishop Fairfoul confirming the same with a Novo damus and therefore though he might have been questioned before the said Ratification and new Gift yet now he cannot be questioned upon insufficiency but only on Malversation whereof there is no point alleadged nor condescended on nor is his insufficiency qualified by any Act of inorderly Process or injustice committed by him now these five years and as Bishop Fairfoul who acknowledged him to be a fit and qualified Person by his Ratification could never quarrel him upon insufficiency neither can this Bishop 2ly The Defender has his Place with power of Deputation and therefore having given eight thousand merks to the former Bishop for his Ratification with power of Deputation he cannot be questioned on his sufficiency being able per se aut per deputatum and no Act alleadged of injustice It was answered by the Pursuer to the first Defense that albeit this same Bishop had admitted this Commissar upon hopes of his Qualifications yet if contrair to his expectation it appears he is not qualified for so eminent a Judicature He may justly quarrel him of insufficiency as well as a Minister whom he ordained 2ly Though the same Person might not yet his Successor in Office might and is not bound to acknowledge what his Predecessor did by mistake or otherwayes to the detriment of the Sea which were in his option without a Rule or requiring Qualifications as the naming of Commissars To the Second albeit Deputs were allowable as they are not by the Injunctions yet the principal Commissar who must Regulat and answer for them must also be qualified both by the Act 1609. and the exception 1661. which enervats both the Defenders Gifts The Lords found that Member of the Lybel on the Qualifications and sufficiency Relevant My Lord Ley contra Porteous Feb. 15. 1666. MY Lord Ley having Right by progress to the Reversion of an old Wodset uses an Order and pursues Declarator thereupon The Defender alleadged no Declarator because by the Reversion there is a Tack to be granted to begin after Redemption and to continue for so many years It was answered that Tack was null and invalide not only by Common law as an usurary Paction giving the Wodsetter more then his ordinary Annualrent but by a special Act of Parliament Ia. 2. Par. 1449. cap. 19. whereby such Tacks taken in Wodsets to endure long time after the Redemption for the half mail or near thereby shall not be keeped and as by the late Act of Parliament between Debitor and Creditor it is provided that where old Wodsets were granted before 1650. when annual was at ten for ilk hundreth the Wodsetter may upon offer of Caution for the annualrent take Possession unless the Wodsetter offered himself to be comptable for what exceeds his annualrent It was answered for the Defender that his Defense stands yet Relevant notwithstanding the answer for as to the old Act of Parliament it is in desuetude and it hath been the common custom to grant such Tacks in Reversions which have still been observed and were never quarrelled neither are they usurary seing the Tacksman has the hazard of the Fruits and all burdens so his Tack-Duty how small soever unless it were elusory can be no usurary paction more then taking Lands in a proper Wodset which pay more then the true annualrent which was never found usurary 2ly This Wodset is granted since that old Act whereby the benefit thereof is totally past from As to the new Act the Clause bears expresly that during the none Redemption or none Requisition the conditions therein shall take place which cannot be extended to a Tack to be granted after Redemption It was answered that the first Act bears not only a Regulation of Wodsets already then granted but to be granted bearing expresly who takes or has taken Lands in Wodsets c. and there is nothing in the Wodset to renunce the benefit thereof As for the custom Acts of Parliament are not derogat by custom of privat parties aâ—quiescing in their agreements But the custom of the Lords by current Decisions As to the last Act it ought to be drawn ad pares casus and the Lands are not effectually Redeemed till the Tack be ended The Lords found the last Act no ground for annulling such Tacks but found the first Act a good ground if it were subsumed according to it that the â—ands were set for half Mail or thereby Lyon of Muiresk contra Gordon and others Eodem die JOhn Lyon of Muiresk having obtained Decreet of Spuilzie of certain Goods against Gordon and others they suspend and alleadge the Act of Indemnity that they took these Goods being under the Command of the Marquess of Hunlly It was answered that the Charger was in friendship with the Marquels and on his side and so they cannot Cloath themselves with the Act of Indemnity as done upon hostility 2ly The Act Indemnifies only Deeds done by Command and Warrant of any pretended Authority but here no such Order is alleadged It was answered that Orders were not given in Writ and if none get the benefit of the Indemnity but these can shewâ— or prove Orders few or none will enjoy it nor need the Suspenders to Dispute whose side the Charger was on seing they acted by Order The Lords found that it was sufficient to alleadge that the Charger was the time of the Intromission actually in Arms and acted it with a Party being then in Arms but needed not prove their Order or the application of the Goods to publick use but found it Relevant if it were offered to be proven by the Suspenders Oath that they had no Warrant or Order or pro ut de jure that they applyed them to their own privat use not for any publick use Iames Borthwick contra Ianet Skeen Feb. 16. 1666. JAmes Borthwick having obtained Reduction of Ianet Skeens Liferent-right as a
charges the Parochiners of Craufoord Compearance is made for the Bishop of Edinburgh alleadging that this was a Patrimonial Kirk of the Bishoprick of Edinburgh and so was not comprehended in the late Act of Parliament anent vaccand Stipends The Lords repelled the Defense and preferred the Collector of the Vaccand Stipends for they found the Act was general without any such exception Mr. John Thomson contra Mckitrick Eodem die MR. John Thomson pursues Mâ—kitrick for reduceing of an Infeftment of some Tenements in Dumfries upon an appryzing on these Reasons First That the appryzing was null proceeding upon a Bond without Requisition or Charge without which the Heretable Bond could not become moveable 2dly Infeftment being within Burgh was not given by the Baillies and Town Clerk 3dly That it was neither Registrate in the Town Books nor in the Register of Seasings of the Shire It was answered to the First that the Bond bare no Clause of Requisition but bore on the contrare to be payable without Requisition and so as Moveables the Defender might have poynded therefore without Charge so might Lands be Appryzed to the Second there being no Magistrats nor Town Clerk in Office at the time of this Seasine and the Defender being an Appryzer necessitat to do Diligence took Seasine by the Sheriff Clerk which was necessar and sufficient To the Third the Act of Parliament requires no Registration of Seasines within Burgh and albeit they be ordinarly to be found in the Town Books yet if that should be neglected they would not be null The Lords repelled the first Reason and found no necessity of a Charge and they had formerly repelled the second Reason in respect of the Answer made thereto and did also repell the third Reason Earl of Southesk contra Marquess of Huntlie Iuly 23. 1666. THE Earl of Southesk and the late Marquess of Argyl being Cautioners for the late Marquess of Huntly for the Tochers of the Daughters of Huntly they got an Infeftment of the Lands of Badzenoch for their relief bearing that according as they should be distrest they should have access to the Rents of the Lands in so far as might pay the Annualrent of the Sum which they should be distrest for whereupon they were Infeft in Anno 1643. And thereafter Southesk was distrest in Anno 1653. Whereupon in Anno 1655. He pursued an Action of Maills and Duties upon the said Infeftment of relieff against the said Lord Argyl who was in Possession and my Lord Argyl having long before granted an Bond of relieff to Southesk he used Horning and Caption thereupon in Anno 1655. and in Anno 1658. he used Inhibition upon the said Bond against Argyl who in Anno 1658 Entered in a new Contract with Southesk whereby in Corroberation of the first Infeftment he granted him a Wodset of the Lands of Enzie with a Back-tack by vertue whereof Southesk uplifted several years of the Back-tack Dutie Southesk now pursues the Marquess of Huntly and his Tenents for declaring of his Right and payment of the Maills and Duties it was alleadged for the Defenders First absolvitor because the Marquess of Argyl hath been Retoured to have possest the Lands of Badzenoch peaceably by the space of 5 years before his Forefaulture which was in Anno 1661. Conform to the Act of Parliament 1584. By vertue thereof this Marquess of Huntly as the King's Donatar to the Forefaulture in so far as concerns the Estate of Huntly has undoubted Right and needs not dispute what Right Southesk had before the five years It was answered for the Pursuer First That the Act of Parliament 1584 ought not now to take effect because by the late Act of Parliament 1617. Seasine and Reversions are appointed to be Registrat otherwise they are null and therefore the ground of the Act of Parliament 1584. viz. The abstracting of Evidents Ceasing the said Act it self must also cease 2dly The said Act can only take place where it is not constant what Right the Forefault Person had but that he was repute to be the ancient Heretor of the Lands but where the Forefault Persons Right is known to have been Beations Compryzing or this Conjunct Right granted to himâ— and the Pursuer for their Cautionrie presumptio cedit veritati and the Right must only be holden to be such a Right as truly it was 3dly The five years Possession being in effect a Prescription in favours of the King and his Donatar whatsoever would interrupt any other Prescription must interrupt this as if within the five years the Pursuer had intented a Reduction of the Forefault Persons Right or an Action for Maills and Duties or had required for his Sums and charged thereupon all these would be sufficient interruptions against this quinquennial Possession and would take away the presumption of Collusion or abstracting 4thly The five years possession by the Act of Parliament bears expresly to be peaceable so that if it was turbata possessio it would not be enough and being once a troubled possession by any legall interruption after the said interruption that subsequent possession ceases not to be a troubled possession though there be no furder interruption within the 5 years because interruption once used endures for 40. years Ita est Argyls possession was troubled by pursuits to compt for the Maills and Duties of these Lands upon this Right and that within a year or two before the five and likewise within the 5. year the Marquess of Argyl did corroborat this Right and in corroboration thereof granted Wodset of the Lands of Enzie for the Sums accummulat by vertue whereof the Pursuer within the 5. years was in Possessionâ— by uplifting the Back-tack Dutie which being a Cumulative Right possession thereon is valid for both The Defender answered that his Defense upon the Act of Parliament stood valid notwithstanding of all the Replyes because the Act is clear and unrepealled that 5. years peaceable possession of the Forefault Person gives the King unquestionable Right it being retoured by an Inquest as now this is And as to the troubling of the possession no Deed done before the 5 years can have any effect because as the 5 years cut off the most Solemn anterior Rights much more a Citation or other Interruption and as to the Interruptions within the 5. years they are only two one is an Inhibition against Argyl which proceeds not upon this Infeftment but upon a Personal obligement by Argyl to relieve the Pursuer neither does it at all relate to the possession nor any other Action but only as an Inhibition prohibits Alienation And as for the Contract of Wodset with Argyl it is post commissum crimen and so cannot prejudge the Donatar It was answered that albeit the Forefault Persons Deeds being voluntar post commissum crimen cannot be effectual yet where it is upon a cause anterior to the Crime viz. Argyls Intromission by the Infeftment of Relieffâ— and the distress occurring against the
have been used at the Old Paroch Kirk and particularly by the Defender himself The Lords Repelled the Defense simply unless the Erection were alleadged as aforesaid and found in that Case the Reply Relevant to elide the same Earl of Argile contra George Campbel Ianu 25 1667 THE Earl of Argile insisting in the Removing against George Campbel It was alleadged no Removing because the VVarning was null not bearing to have been Read at the Kirk Door either at the time Divine Service uses to be or at least before Noon It was answered that the VVairning bore that the same was affixed on the Kirk Door and lawfully Intimat there which does import the lawful time of the Day 2ly The Pursuer offered to mend the Executions at the Bar and abide by it as so done It was answered that the Defender accepted the Executions as produced after which they could not be amended and that lawfully could not supply that Speciality otherwise if the VVarning had only born that the Officer had VVarned the Party lawfully it would have been enough The Lords admitted the Pursuer to amend the Execution he biding thereby and Ordained the Defender to see the same Hercules Scot contra Gibb Ianuary 29 1667. HErcules Scot having given his Horse to John Gib Stabler in Brunt-Island to be kept pursues Gibb for the price of his Horse The Defender alleadged Absolvitor because he having put out the Horse to the Grass it being in the Month of July the Horse fell over a Rock and brake his neck and the Defender is not lyable pro casu fortuito It was answered that the Accident was by the Defenders fault because he put the Horse to Grassing above the Craigs of Brunt-Island and caused ty his Head and Foot together 2ly It is offered to be proved by Witnesses that the Pursuer directed him to keep the Horse in the Stable at hard Meat and not to put him out to Grass The Defender answered that he was not in culpa because he had put out the Horse in a place where ordinarly other Horses were put out and had tyed him no other way then the rest of the Horses 2ly The Command to keep is only relevant to be proven scripto vel juâ—amento and the emission of words without any Fact is not otherwise probable The Lords found the Defense and Duply Relevant to elid the Summons but found the Reply and Triply Relevant to elide the same and found it Probable by Witnesses in respect it was a part of the Bargain betwixt the Pursuer and the Stabler Henderson contra Henderson Ianu. 31. 1667. UMquhil Henderson grants a Writ in favours of Allan Henderson whereby he appoints the said Allan to be his Heir and Donatar to all his Lands and Estate and assigns him to the Rights and Evidences thereof with power to Enter by the Superiour But in the Narrative it bears the ordinar Narrative of a Testament and has a Clause subjoyned to all in case of his Return he may alter and annul the same there having nothing followed in his Life The said Allan pursues Henderson his appearand Heir to fullfil the former Writ and to Enter Heir and Resign in his favours conform to the meaning thereof The Defender alleadged Absolvitor First Because this Writ is no Disposition but a Testament or a Donation mortis causa in which no Disposition of Land can be valid 2ly Albeit this could be a Disposition yet it is not done habili modo there being no Disposition of the Right of the Land or any Obligement to Infeft neither can a Person be Constitute Heir but either by Law or Investiture or at least by an Obligement to grant Investiture 3ly This being donaâ—io mortis causa expresly Revocable by the Defunct at his return it is ambulatory and conditional Ita est he returned and granted Commissions and Factories whereby his mind appeared to be changed The Lords Repelled all these Alleadgances and sustained the Summons because though the Writ was unformal yet they found the Defuncts meaning was to alienat his Right from his Heirs to this Pursuer to take effect after his death and albeit he returned seing he did no Deed to annul or recal this Writ this was effectual against his Heir to compleat the same Creditors of Sir James Murray contra Iames Murray Feb. 1. 1667. THere being a Wodset of the Lands of Stirling granted by Sir Iames Murray to Iames Livingstoun of the Bed-Chamber containing a Clause of Requisition and Reversion on payment at London the Lands being Appryzed by Sir Iame's Creditors they having the Right of Reversion did use an Order at Edinburgh against Iames Murray as now having a Right to the Wodset and pursue a Declarator The Defender alleadged Absolvitor because the Order is not conform to the Reversion which is strictissimi juris and behoved to be done at London It was answered the place being adjected in favour of Iames Livingstoun who resided at London The Pursuers have done more having consigned at the present Wodsetters Domicile London being only appointed as it was the former Wodsetters Domicile wherein he hath benefit and can have no detriment It was answered he was not obliged to Debate his detriment for if his Money were in London he would get six of the hundreth of Exchange to Scotland The Lords sustained the Order the Pursuers making up what should be modified by the Lords for the Interest of the Wodsetters Earl Tullibardine contra Murray of Ochtertyre Eodem die THe Earl of Tullibardine having Wodset the Lands of Logie-Almond to Murray of Ochtertyre he did thereafter Discharge the Reversion and at that same time got a Back-bond bearing That for payment of 56000. merks with all other sums that should happen to be due to him by Tullibardine and all Expenses that he should Dispone the Lands back to Tullibardine or the Heirs or Assigneys of his own Body but with this provision that if he were not payed before Martinmass 1662. the Bond should be null without Declartor Tullibardine premonishes and after Premonition Dispones the Lands to Sir Iohn Drummond and they both joyntly Consign and now pursue Declarator It was alleadged for the Defender Ochtertyre First No Declarator upon this Order because the Back-bond is Personal to my Lord and to the Heirs or Assigneys being of his Body so that Sir John Drummond nor no Stranger can have Right thereby to Redeem 2ly The Back-bond is extinct and null by committing of the Clause Irritant in so far as payment has not been made before 1662. The Purswer answered to the first that albeit the Reversion had been Personal to my Lord only excluding his Heirs and Assigneys yet my Lord in his own Lifetime might Redeem and being Redeemed the Right would belong to any to whom my Lord had or should Dispone 2ly This Clause Irritant is pactum legis commissoriae in pignoribus which by the Civil Law and our Custom is void at least may be still purged
and preferred the Pursuer in probation thereof and in respect of so unwarrantable a way of Disposing they would neither allow Retention nor Compensation but left the Defender to make his Application to the Exchequher for his payment Margaret Pringle and her Spouse contra Robert Pringle of Stichel November 29. 1667. MArgaret Pringle pursues an Exhibition of all Writs granted by or to her Umquhil Brother ad deliberandum It was alleadged no Process for Writs granted by him to Strangers except such as were in his Family conform to the late Decision Schaw of Sornbeg contra Tailzifare which they declared they would follow as a Rule The Pursuer answered that he Insisted for Exhibition of such Writs as were granted by the Defunct to any person which were in his possession or Charter Chist the time of his Death Which the Lords Sustained Duke Hamiltoun contra the Laird of Allardine December 6. 1667. THe Duke of Hamiltoun having Charged the Laird of Allardine for the six Terms Taxation Imposed anno 1633. He Suspends on this Reason that four Terms were payed by the Earl of Marishal Sheriff which must Exoner him and all other persons of the Shire and is instructed by the Books of the Clerk to the Taxations It was answered that the Reason is not relevant because the Sheriffs did ordinarly Lift a part of all the six Terms and albeit the Sheriff compleated the first four yet he might have done it out of his own Money or out of the other two and so when the King Charges for the other two the Sheriffs Discharges will Exclude him so that he shall not want the first four but so much of the other two and therefore unless the Suspender can produce a Discharge of the first four the general Discharge granted to the Sheriff cannot Liberat him It was answered that when the King or his Collector Charges the Collectors general Discharges cannot but meet himself and whether the Suspender had payed or not the general Collector cannot seek these Terms twice It is true â—f the Sheriff were Charged the Suspender behoved to show to him his Discharge but the Earl of Marishal Sheriff could not Charge the Suspender for the Taxation of these Lands because the Earl of Marishal was both Sheriff and Heretor at that time and Sold the Lands to the Suspender with Warrandice The Lords found the general Discharge sufficient to the Suspender against the general Collector or any authorised by him Earl of Lauderdale and Iohn Wachop contra Major Biggar December 7. 1661. THe Earl of Lauderdale and Iohn Wachop Macer pursue a Reduction and Improbation of the Rights of the Lands of Hill against Major Biggar and craved Certification contra non producta The Defender alleadged no Certification because he had produced sufficient Rights to exclude the Pursuers Title viz. Infeftments long prior to the Pursuers Right It was answered that this could not stop the Certification unless the Defender would declare he would make use of no other Rights in this Instance otherwise the Pursuers behoved to Dispute with him upon every single Writ he produced and behoved to Dispute the Reasons of Reduction with him before the Production were closed The Pursuer answered that his alleadgeance as it is proponed was alwise Sustained without declaring that he woâ—ld make use of no more The Lords found the Defenses as proponed relevant and ordained the ordinar to hear the Parties Debate upon the Rights produced and if these should not prove sufficient the Lords thought that the Defender might be forced at the next time to produce all he would make use of in this Cause that so the Pursuers were not delayed upon Disputing upon every single Writ Earl of Cassils contra Sheriff of Galloway December 10. 1667. THe Earl of Cassils pursues the Sheriff of Galloway and the Tennents of Achnotorâ—ch for abstracted Multures and Insists on this ground against the Sheriff that he being Heretor of the Lands and Vassal to the Pursuer did command them to leave the Pursuers Miln and come to his own Miln and so was Liable The Defender alleadged that this Member of the Summons is not relevant because any man may desire any persons he pleases to come to his Miln and there was never a pursute Sustained against any others then the Abstracters and not against these to whose Miln they came 2dly It is not Libelled that the Defender got a greater Duty upon the Tennents coming to his Miln and although he had it were not relevant 3dly By the Defenders Rights he is Liberat of all Multures except Knavship and Bannock which is only the Hire due to the Millers for their Service and there is no obligement upon him to cause his Tennents come to the Miln It was answered the Pursuer offered to prove the Defender had gotten a greater Duty upon the Tennents coming to his miln and albeit the Astriction be only of Knavship and Bannock that is not alone due for the Millers service but there is a profit thence arising to the Master that the Sheriff being Heretor and Vassal albeit he be not personally obliged to cause the Tennents come to his Miln yet the Lands being Astricted by his Infeftment it was his fault to remove them The Lords Assoilzied from that Member of the Lybel and found it not relevant against the Heretor but only against the Tennents Mr. Rodger Hog contra the Countess of Home Eodem die MAster Rodger Hog having Appryzed certain Lands from the Laird of Wauchtoun in Alcambus which were Sold to Wauchtoun by the Earl of Home with absolute Warrandice Upon which Warrandice there was Inhibition used whereupon Mr. Rodger pursues Reduction of an Infeftment of Warrandice of these Lands granted by the Earl of Home to my Lady in Warrandice of the Lands of Hirsil and that because the said Infeftment of Warrandice is posterior to the Inhibition The Defender alleadged that there could be no Reduction upon the Inhibition because therewas yet no Distress which with a Decreet of the Liquidation of the Distress behoved to preceed any Reduction and albeit there might be a Declarator that my Ladies Infeftment should not be prejudicial to the Clause of Warrandice or any Distress following thereupon yet there could be no Reduction till the Distress were Existent and Liquidat The Pursuer answered that a Reduction upon an Inhibition was in effect a Declarator that the posterior Rights should not prejudge the Ground of the Inhibition for no Reduction is absolute but only in so far as the Rights Reduced may be prejudicial to the Rights whereupon the Reduction proceeds The Lords Sustained the Reduction to take effect so soon as any Distresse should occur Mr. Iames Straiton contra the Countess of Home Eodem die MAster Iames Straiton Minister of Gordoun having obtained Decreet conform upon an old Locality Charges my Lady Home for payment who Suspends and alleadges that she must be liberat of a Chalder of Victual contained in the
Defender offers to prove uses to be done in the like case Which the Lords found relevant albeit the Intimation was not mentioned in the Designation Robert Dobby contra the Lady Stanyhil his mother Eodem die RObert Dobby pursues the Lady Stanyhil his Mother for an Aliment upon this ground that she being provided to an plentiful Liferent being an Annualrent of 2800. Merks yearly there remains nothing to Aliment him the Heir of free Rent being all exhausted by the Liferent and Annualrent of the Debt The Defender alleadged Absolvitor because there is no ground in Law nor Custom for an Aliment to the Heir except the Rents were exhausted by real burdens by Infeftment but here at the Defuncts Death there was only this Liferent which was not the half of the Rent and there was no Infeftment more 2dly Aliments is only competent to Minors the Pursuer is Major and may do for himself The Pursuer answered that it was alike whether the Debts were personal or real for if Apprysings had been used they would all have been real but the Pursuer did prevent the same by Selling a part of the Land at a great Rate which was all applyed to the Creditors and yet the Liferent and Annualrent of the Debt is more then the Rent neither is there any distinction in the Law as to Majors and Minors who were not bred with a Calling and therefore Carberry who was a man of age got an Aliment and Anthonia Brown got an Aliment from her Mother who had an Annualrent in Liferent and the Debts were all personal at her Fathers Death albeit some of them were Appryzed for before she got her Aliment The Defender answered that there was a sufficient Superplus because she offered to take the Lands or find sufficient Tennents therefore for 4300. Merks yearly which was a 1000. Pounds above her Liferent and would exceed the Annualrents of all the Debts The Lords found this last Defence relevant but did not proceed to determinâ— whether an Aliment would be due where the burden was but by personal Debt Alexander Binny contra Margaret Binny Eodem die MArgaret Binny granted a Bond obliging her self to Enter Heir of Line to her Father and to Resign the Lands in Favours of her Self and the Heirs to be Procreat of her own Body which failzying to the Heirs of Alexander Binny her Father and obliged her self to do nothing contrair to that Succession and having Married William Brotherstanes by her Contract of Marriage nomine dotis she Dispones the Lands to him This Margaret was the only Child of Alexander Binnies first Marriage and there was an Inhibition used upon the Bond before her Contract of Marriage Alexander Binny being Son of the second Marriage and Heir of Line to his Father pursues the said Margaret to fulfil the Bond and to Enter and Resign the Land conform thereto and thereupon did obtain Decreet which being now Suspended It was alleadged that this being but an obligement to Constitute a Tailzy could have no effect to hinder her to Dispone to her Husband in name of Tocher which is the most favourable Debt or to Contract any other Debt which the Pursuer who behoved to be her Heir could never quarrel 2dly It was alleadged for the Husband that he could not be Decerned as Husband to consent to this Resignation contrair to his own Contract It was answered that this was not only a Bond of Tailzy but an obligement to do nothing that might change the Succession and so she could not voluntarly Dispone but the Husbands Provision might be Competent enough seing both she has the Liferent and the Children of the Marriage will succeed in the Feeâ— and albeit the Pursuer must be Heir of Tailzy yet obligements in favours of Heirs of Tailzy are alwayes effectual against Heirs of Line in relation to whom the Heir of Tailzy is but as an stranger The Lords repelled the Reason and found the Letters orderly proceeded till the Wife Entered and Resigned with Consent of her Husband conform to the Bond seing there was Inhibition used before the Contract but they did not Decide whether this Clause would have excluded the Debts to be Contracted by the said Margaret or her Heirs upon a just ground without Collusion but found that she could not make a voluntare Disposition to exclude that Succession in respect of the obligement to do nothing in the contrair Eâ—phan Brown contra Thomas Happiland Ianuary 29. 1668. MArjory Brown being first Married to Happiland and thereafter to Robert Brown she Acquired Right to a Tenement of Land to her self in Liferent and Euphan Happiland her Daughter of the first Marriage in Fee which Infeftment is given by the said Thomas Brown her Husband being then Bailly for the time Agnes Happiland Dispones this Tenement to Thomas Brown Heir of the Marriage betwixt the said Umquhil Thomas Brown and Marjory Bruce and for the price thereof gets a Bond relative thereto Thomas Brown being Charged upon this Bond raises Reduction upon Minority and Lesion To the which it was answered there was no Lesion because the Disposition of the Land was an equivalent Onerous Cause It was answered that the Disposition was no Onerous Cause because the Lands Disponed belonged not to the Disponer but to the Suspender himself in so far as they were Conquest by Marjory Bruce while she was Spouse to his Father so that the Money wherewith she Acquired the same belonging to the Husband jure Mariti the Land must also be his unlesse it were condescended and instructed that she had Heretable Sums not falling within the jus Mariti wherewith this Right was Acquired It was duplyed that this was but a â—aked Conjecture and Presumption which is sufficiently taken off by the Husbands giving Seising as Bailly It was answered that this was actus officij which he could not refuse but he knew that the Infeftment in favours of his Wife would accresce to himself The Lords repelled the Reasons of Suspension and Reply in respect of the Answer and Duply and found that the Fee of the Land belonged to the Wife and her Daughter and that there was no Lesion in giving Bond therefore Laird Aitoun contra Iames Fairy Eodem die THe Laird of Aitoun having bought a Horse from Iames Fairy pursues for repetition of the price and for entertainment of the Horse since upon this ground that he offered to prove by the Witnesses at the buying of the Horse that Iames Fairy promised to uphold him but six years old and that he was truly twelve years old The question was whether this was only probable by Oath or Witnesses But the Lords perceiving an anterior question how soon the Horse was offered back by the Pursuer they ordained him to condescend that very shortly thereafter he offered the Horse back otherwise they would not sustain the Processe John Papla contra the Magistrats of Edinburgh Ianuary 31. 1668. JOhn Papla pursues the present Magistrats of Edinburgh for
upon consideration of the Pasturage without which it could neither give the Rent it payes nor the Price so that when my Lord Dispones the Lands with the Pertinents and at the time of the Disposition this Pasturage is unquestionably Possest as a Pertinent of the Land the extended Charter and Disposition ought in all Reason to comprehend it expresly neither is there any difference whether the Pasturage be of a Moor contiguous or belonging to the whole Barony seing it cannot be Contraverted but it was Possest as Pertinent of this Room the time of the Bargain and to clear that it was so Possest the Charger produced a Wodset granted by the Lord Borthwick to himself of the same Room bearing expresly Pasturage in the common Moor of Borthwick The Suspender answered that the Wodset made against the Charger in respect this Clause being express in the Wodset he had not put it in the Minut which as jus nobilius absorbed the Wodset and cannot be looked upon as a Discharge of the Reversion only because my Lord was Superior by the Wodset and by the Minut he is to Resign likeas in the minut there is a Disposition of the Teinds which is not in the Wodset The Lords found that the Minut ought to be extended bearing expresly the common Pasturage in the Moor of Borthwick in respect the same was a Pertinent of the Lands Sold the time of the Bargain and was not excepted Sir George Mckenzy contra Iohn Fairholm Eodem die SIr George Mckenzie insisted in the Reduction of the Bond Subscribed by him as Cautioner for his Father in his Minority It was alleadged for Iohn Fairholm that he could not Reduce upon Minority because he had Homologat the Bonds after his Majority in so far as he had accepted Discharges of the Annualrent bearing Deduction of the Bond by his Father as Principal and him as Cautioner and Discharging them both which Discharges Sir George himself did Receive from Iohn Fairholm and payed the Money Sir George answered that the Discharges do not bear that he payed the Money but bears that the same was payed by the Principal Debtor and his Receiving of a Discharge not having payed cannot import his Homologation or acknowledgement of the Bond for to prevent question and trouble one may take Discharge of what he denyes to be Due and the Bond being then standing Unreduced he may well accept a Discharge not knowing the event of the relevancy or probation of his Minority The Lords Repelled the Defense and found that the Discharges imported no Homologation unlesse it were instructed that Sir George out of his own Money payed the Annualrent The Laird of Haining contra the Town of Selkirk February 15. 1668. THere being mutual Pursuits betwixt the Town of Selkirk and the Laird of Haining the Town pursuing a Declarator of the Right of Property of the Commonty of Selkirk and Haining pursuing a Declarator of his Right of Pasturage in the said Commonty by vertue of his Infeftments of the Lands of Haining which Lands are a part of the Kings Property of the Barony of Selkirk and that this Common is the Commonty of the said Barony Possest by all the adjacent Fewars of the Barony and whereof they have been in immemorial Possession The Lords did before answer ordain both Parties to produce all Rights Writs or Evidents they would make use of in the Cause and also to adduce Witnesses hinc inde of both their Possessions and interrupting others Haining produced a Charter by the King in anno 1505. of the Lands of Haining being a part of the Kings Property bearing cum partibus et pertinentibus cum pascuis et pasturis but not bearing in communi pastura or cum communiis generally or particularly in the Common of Selkirk he did also produce posterior Charters of the same Land bearing cum communi pastura and did adduce several Witnesses proving 40. years continual Possession but some of his Witnesses proved Interruptions by the Town of Selkirk's cutting of Divots cast by him and his Predecessors upon the Moor. The Town of Selkirk produced their Charter of the Burgh posterior to Hainings first Charter bearing that their Ancient Evidents were burnt by the English and therefore the King gives them the Priviledge of the Burgh of Selkirk with the Burgage Lands thereof cum communiis ad dictum Burgum spectantibus which the King confirms by a posterior Charter giving the Town warrand to Ryve out 1000. Aikers of Land of the Common they did also produce several Instruments of interruption not only by cutting of the Fail and Divots cast by Haining or his Tennents but by turning their Cattel off the Moor as proper to themselves and turning off all the Heretors Cattel they found thereupon and by yearly Riding about the whole Marches of the Moor. They did also produce a Decreet at the Towns Instance against the Tennents of Haining Decerning them to Defist and Cease from the Moor in which Decreet Hainings Predecessor was Provost of Selkirk and is Pursuer of the Cause they also produced two Missives Written by Umquhil Haining acknowledging that the Town had cut his Divots Casten upon the Head Room and making apollogy for Casting of the same denying it to be by his Warrand or Knowledge they did also produce two Acts of the Town Court bearing Haining to have desired liberty to draw Stones off the Common to Build a Park Dike and to Cast some Divots for his Tennents Houses they did also adduce several Witnesses proving their continual and uninterrupted Possession of the Moor this fourty years and more which proved also frequent interruptions against Haining especially by cutting of Divots and also by turning off his Cattel upon which probation it was alleadged for the Town that they had instructed sufficient Right to the Property of this Moor and that they had debarred the Laird of Haining and his Tennents therefrom whenever they heard they came upon the same It was answered for Haining that he did not deny the Town of Selkirks Right of Pasturage in the Moor but did deny they had Right of Property therein but that the property did yet remain in the King as a part of the Barony of Selkirk being of the Kings annexed Property but that the said Property as to the Moor was now burdened with a Common Pasturage belonging to the Town of Selkirk and also belonging to the Laird of Haining and the other Feuars of the Barony of Selkirk and therefore alleadged that his Charter in the year of God 1507. being long before any Charter granted by the King to the Town did Feu to his Predecessors the Lands of Haining cum pertinentibus cum pascuis pasturis and this Common being the Commonty of the Barony of Selkirk the King Feuing a part of the Barony cum pertinentibus et pascuis did certainly thereby grant all that belonged to these Lands as Pertinent thereof as it was the time of the Feu being then Possessed by the
Lord Argile not to insist against the Vassals who had been Loyal It was answered for the Earl that he had given no just grounds to his Vassals to expect that though they were in his power that he would destroy them and annul their Rights and seing His Majesty had fully and absolutely entrusted them to him they ought to have rested upon His Kindness and Generosity and not to have made all this Clamour where they have no Legal Defense it being no strange nor new thing for the King to give Gifts of Forefaulture without any Reservation of Vassals who had no Confirmation from the King yea many times without any Reservation of the Forefault Persons Debt and His Majesty has lately so done to the Marquess of Huntly to whom he gave the Estate of Huntly without Reservation either to Vassals or Creditors and that upon the Forfaulture of the Marquess of Argile who had Right to and was in Possession of the Estate of Huntly for vast sums of Mony and the Earl of Argile has the Gift of the remainder of his Fathers Estate with the burden of more Debt then the proper Debt of the House of Argile would have been over and above the Debts undertaken for the House of Huntly 2dly Whatever the Vassals might plead in Point of Favour yet they do not pretend to a Defense in Law And the Lords being Judges of the Law ought not to stop the Course thereof upon the Insinuations of any Party otherwayes they may deny the Course of Law to any of the Leidges when they please upon the account that they think the Law hard or rigorous or the Kings grants made conform thereto and whatsoever the Lords might do in the dubious Interpretation of a Treaty of Peace to know the Kings meaning yet in claris â—on est locus conjecturis nothing can be clearer then the Kings meaning under His Great Seal and all the Defenders can pretend is Favour which is no Point of Right nor legal Defense The Lords granted Certification eâ—nâ—ra non producta conditionally that what the Vassals should produce betwixt and the tenth of November should be received and left it to the Vassals in the mean time if they thought fit to make Address to the King that he might interpose with the Earl in their Favours or to Debate any thing they thought fit when the Earl insisted for Reduction of their Rights for want of Confirmations or for Mails and Duties Agnew contra Tennents of Dronlaw Eodem die AGnem having Appryzed the Lands of Dronlaw from Mr. Robert Hay Advocat as Cautioner for the Earl of Buchan to the behove of the Earl of Kinghorn pursues the Tennents for Removing who alleadged Absolviture because the Tennents were Tennents by payment of Mail and Duty to the Liferenter Mr. Robert Hayes Mother and she is not warned nor called The Pursuer answered that the Liferenter dyed before the Term and that he was content that the Tennents should be Decerned to Remove but at the next Term of Whitsonday Yet the Lords Sustained the Defense seing the Liferenter was living the time of the Warning Farquhar contra Magistrâ—tes of Elgin Iuly 2. 1669. FArquhar having caused a Messenger Charge the Magistrates of Elgin to take my Lord Lovat and the Baillies being together upon the Street about eight or nine a Clock in the Morning the Messenger with several other Persons present Charged them to go into an House near by which they designed to them and to take Lovat being then in Bed and the Messenger offered to go with them and enter first yet the Bailies did not obey but said they would go at their conveniency when they had conveened their Neighbours to assist there is an Execution and Instrument upon the back of the Caption to the effect foresaid produced whereupon Farquhar pursues the Magistrates for Payment of the Debt contained in the Caption The Defenders alleadged Absolviture First Because they were no further obliged but to conveen the Neighbours of the Town and send them with the Messenger to assist which they offered to do 2dly Albeit themselves were obliged to take the Rebel if he were showen to them within their Jurisdiction yet they were not obliged to search every House of the Town for him or to enter within closle Doors 3dly The Lord Lovat being known to be a fierce young Man who ordinarly had a Minzie attending him they were not obliged to adventure upon him without calling the assistance of their Neighbours which they did within an hour or two thereafter and he was gone The Lords Repelled all these Defenses in respect of the Execution and instrument produced and found the Magistrats being Charged obliged to take the Rebel and without delay to search any House within the Town that was particularly shown to them unless they had been Repulsed by Force or the Doors by Violence keeped closse against them by the Master of the House and ordained the Pursuers to adduce the Witnesses in the Instrument and others to prove the particulars foresaid to have been so done as is therein exprest Bow contra Campbel Eodem die BOw Stabler in Edinburgh as Assigney to a Sum of Money due by Glenurchy and also as Donotar to the Escheat of his Cedent being called in a double Poinding and competing the Donator alleadged he ought to be preferred to the Arrefter because the Debt in question falling in his Cedents Escheat he had taken the Gift of the Escheat bearing expresly all Goods the Rebel had or should acquire and this Debt being acquired after the Gift did accresce to him the Rebel not being yet Relaxed It was answered that though the stile of the Gift bear all Goods to be acquired yet that is always interpret such as happen to be acquired within year and day after the Horning It was answered for the Donatar that he oppones the Tenor of his Gift and if any limitation could be thereof it could only be of Sums to be acquired within a year after the Gift and not within a year after the Horning because sometimes Gifts are not taken within a year of the Horning The Lords found the Gift to extend to the Sum in question being acquired by the Rebel within a year after the Gift and that the general Clause of Goods to be acquired did extend no further then to Goods acquired within a year after the Gift Laird of Grubbet contra More Eodem die THe Barony of Lintoun belonging to Sir Iohn Ker of Litledean the Lands of Morbatle and Otterburn are parts thereof there is a piece of Land called Greenlaw lying in the borders of Morbatle and Otterburn and there is an Heretable Right of the Lands of Otterburn granted by Sir Iohn Ker to one Young and by that Young a subaltern Right to another Young bearing the Lands of Greenlaw per expressum both these Young's joyntly Dispone to Grubbet the Lands of Otterburn with the Pertinents comprehending the Lands of Raschbogs in
Contract of Marriage and in a Bond of Provision relative thereto became oblieged to pay to the Bairns of the Marriage beside the Heir the sum of 20000. merks at their age of 17. years reserving his own Liferent Elizabeth and Anna Boids the only Bairnes of the Marriage now after their Mothers Death and age of seventeen do with concourse of their Husbands pursue their Father to imploy the said sum of 20000. merks to himself in Liferent and them in Fee The Defender alleadged Absolvitor because the Pursuers can have no Interest in this Provision being expresly conceived in favours of the Bairns of the Marriage beside the Heir Itaest The Pursuers are the Heirs appearand of the Marriage there being no Sons and will succeed to the Estate by the Contract and so cannot demand the Provision made to the other Bairns for if there had been a Son of the Marriage only he could not have claimed this Clause and the Pursuers can be in no better Case than he It was answered that in Contracts of Marriage the meaning of the Parties is chiefly to be respected which has been that in case there were an Heir-male or Son of the Marriage this Sum should belong to the remanent Bairns and therefore it is conceived under the name of Heir in the singular number and being introduced in favours of the Daughters it ought not to be interpret against them but that they may renunce to be Heirs and be satisfied with this Provision only otherwise they may be absolutely excluded the Fathers Estate being apprized by Iohn Boid whose Legal is near to expire and who makes use of the Fathers Name without his Warrand It was answered that Law allows not in any Contract to make up new Clauses and seing the Provision is express in favours of the Bairns beside the Heir it can never quadrat to thir Pursuers who are the only Heirs The Lords found the Provision not to be extended to the Pursuers but because it was suggested that the Father did not propone it They desired the Ordinar to enquire whether the pursuit was for the Father and by his Warrand that then they might consider whether Iohn Boid the Appryzer could have interest to propone that alleadgeance Ker of Cavers and Scot of Golden-berrie Supplicants Eodem die KEr of Cavers and Scot of Golden-berrie being Arbitâ—ators nominat by a Submission did by Bill crave Warrand from the Lords to authorize them to summond Witnesses to compear and Depone before them in the Cause in which they were Arbiters Which the Lords granted Iean Ker contra Downie Ianuary 7. 1670. JEan Ker having set a House in Edinburgh to Downie for nine Pound ten Shillings Sterling She obtains Decreet against him therefore He Suspends on this Reason that within 48. hours after he took the House he did by Instrument give it over which is the ordinar custom of Burghs where there is no Writ to quite the Bargain within a short space unless some offer interveen medio tempore by which the Party is damnified The Charger answered that this House having been taken but fourteen days before the Term there is neither Law nor Custom allowing either Party to give over or resile there being then no competent time to set again For albeit Houses sometimes are given over when they are taken and quite before Warning time when the ordinar occasion of setting to others may occur yet that cannot be drawn to this case and the Instrument of over-giving was only by Downies Wife who shew no Warrand The Suspender answered that there was no difference whether the House was taken before warning time or after seing the Law gives locum penitentiae or some small time which must take place in either case 2dly Albeit the Charger had not been obliged to accept the over-giving yet de facto she has accepted it because it is offered to be proven that she set the House to another and took Earnest thereupon which did import that she quite the first Bargain seing at once she could not set it to two 3dly Albeit offer was made of the Keys at the Term yet it is offered to be proven that the House was not void but that the former Tennents Goods remained therein The Lords Repelled the first Reason of Suspension upon the over-giving but found that Member Relevant that the House being given over the same was set to another and earnest taken therupon but found that Point that the Tennents Goods who possessed formerly were not removed not Relevant in respect of the Custom in Edinburgh not to remove peremptorly at the Term. Mr. Laurence Charters contra Parochioners of Curry Ianuary 8. 1670. MR. Laurence Charters as Executor Confirmed to Mr. Iohn Charters Minister of Currie his Father pursues the Parochioners for 1000. Pound for the Melioration of the Manse of Currie conform to the Act of Parliament 1661. which is drawn back to the Rescinded Act of Parliament 1649. It was alleadged by the Parochioners Absolvitor First Because the Meliorations of the Manse were long before any of these Acts which do only relate to Meliorations to be made thereafter and for any thing done before adificium solo cedit and it must be presumed to be done by the Minister animo donandi there being no Law when he did it by which he could expect satisfaction 2dly Several of the Defenders are singular Successors and so are not lyable for Reparations done before they were Heretors The Pursuer answered that albeit these Reparations were done before the year 1649. yet there being subsequent Acts of Parliament obliging the Heretors to make the Manses worth 1000. pounds if these former Reparations had not been made the Heretors of this Paroch would have been necessitate to make up the same and so in quantum sunt lucrati tenentur 2dly The saids Acts of Parliament contained two Points one is that whereas the intrant Minister payed to his Predecessor 500. merks for the Manse and his Executors were to receive the same from his Successor the saids Acts ordained the Heretors to free the Successor as to which the present Heretors can have no pretence and as to the alleadgeance that they are singular Successors the Acts oblige Heretors without distinction whether they are singular Successors or not The Lords found the Parochioners only lyable for the 500. merks payed by the Minister at his Entry and found that at the time of the Reparation the Parochioners not being lyable were not then lucrati and are not lyable by the subsequent Acts which extend not ad praeterita neither did they find the singular Successors lyable but that the Heretors for the time were only obliged Scot contra Murray Eodem die IN a Process betwixt Scot and Murray a Husband having granted a Tack of his Wifes Liferent Lands and the Wife having promised after his death never to quarrel that Tack yet thereafter insisting against the Tennents who alleadged upon the said promise it was answered that it being
for Debt due to him by Cheisly and he being nowayes particeps fraudis Cheislies Fraud or Circumvention cannot prejudge him for albeit Extortion vi majori be vitium reale that follows the Right to all singular Successors yet fraud is not and reaches none but participes fraudis both by the Act of Parliament 1621. and by the civil Law L. It was answered for Scot that albeit it be true that an Assigney for an Oâ—erous Cause cannot be prejudged by the Oath of his Cedent and consequently by no Circumvention probable by his Oath yet in Personal Rights an Assigney is in no better case then the Cedent nisi quoad modum probandi but what is relevant against the Cedent and competent to be proven either by Writ or Witnesses is competent against the Assigney so that the Circumvention against Cheisly being inferred by pregnant Evidences and Witnesses and not by his Oath it must be effectual against Thomson whose Name being filled up by Cheisly is in effect Cheislies Assigney for so all blank Bonds are commonly found by the Lords to have the same effect with an Assignation 2dly Assignies without an Onerous Cause even as to the Oath of the Cedent or any other consideration are in no better case nor the Cedent but here there is no Onerous Cause appears for which Cheisly transmits this Right to Thomson for the Bond â—ears not that for Sums of Money due by Cheisly to Thomson or any other Cause Onerous on Thomsons part that Scot should be obliged at Cheislies desire to pay Thomson but only that because Cheisly had Assigned a Process to Scot therefore Scot becomes obliged to pay to Thomson 3dly As there is no Cause Onerous instructed on Thomsons part so his own Oath de calumnia being taken renders the matter most suspitious by which he acknowledges he got the Bond from Cheisly and that Cheisly was not then his Debitor for so great a Sum as in the Bond but that by payments made to him and for him thereafter he became his Debitor in an equivalent Sum but Depones that he hath nothing to instruct the Debt nor no Note thereof in his Compt Book though he be an exact Merchant and Factor so that there is no Evidence or Adminicle of an Onerous Cause instructed And lastly Albeit Parties getting blank Bonds bearing borrowed Money from the blank Person whosoevers Name is filled up the Bond then bears the Sums borrowed from him whose Name is filled up and cannot be taken away but by his Writ or his Oath but this Bond bears only a Process Assigned by Cheisly and no borrowed Money or other Cause by Thomson and Thomson living in the same Town with Scot whom he knew and is commonly known to be a simple Person and Cheisly a subdolous he ought before accepting of the Bond to have acquainted Scot of the filling up of his Name and if he had any thing to say and cannot now pretend that he acted bona fide but either must be in dolo or in lata culpa quae dolo aequiparatur The Lords found that having considered the Tenor of the Bond and Thomsons Oath Thomson was in the same condition as to the relevancy and probation of the Reasons of Circumvention against Cheisly and therefore found the Libel Relevant against them both to annul the Bond the Apprizings and Infeftment and all that had followed thereupon Naper contra Gordon of Grange Feb. 12. 1670. IOhn Naper as Representing his Father did Pursue William Gordon of Grange as Representing Hugh his Father for payment of 2000. Merks due by the said Umquhile Hugh his Bond and upon the said Williams Renuncing to be Heir obtaind Adjudication of the Lands of Grange and others in so far as might belong to the said Umquhile Hugh his Debitor his Heirs and thereupon did Pursue the Tennents for Mails and Duties In which Action it was alleadged for William Gordon now of Grange that he stands Infeft by Disposition from the said Umquhile Hugh Gordon of Grange his Father for Onerous Causes and Sums of Money undertaken and payed for his Father which was found Relevant and to evite the same the said Iohn Naper raised Reduction of Grange's Right granted by his Father ex capite Inhibitionis raised against his Father upon the said Bond before the Disposition made to this Grange which Inhibition being produced this day fourtnight it was alleadged for Grange that the samine was null because the Executions buir not a Copy to have been lest at the Mercat Cross at the publication of the Inhibition which the Lords found Relevant and now the Pursuer insisted on this Reason that the Disposition though it buir Onerous Causes yet being after the Contracting of his Debt by a Father to a Son the Narrative bearing the Cause thereof is not Probative against a third Party but the same must yet be instructed Which the Lords Sustained and ordained Grange to produce the Instructions thereof William Lowry contra Sir Iohn Drummond Feb. 18. 1670. UMquhile Sir Robert Drummond of Meidup having Disponed the Lands of Scotstoun to Sir Iohn Drummond of Burnbank Mr. Iohn Drummond Writer in Edinburgh his Grand Nevoy intending to Reduce that Disposition as on Death-bed grants a Bond to William Lowry of 12000. Merks who thereupon having Charged the said Mr. Iohn to enter Heir in special to the Lands of Scotstoun to the said Sir Robert his Grand Uncle Apprizes from him all the Right of the Lands that might be competent to him if he were entered Heir and thereupon raises Reduction of Sir Iohn his Right as being granted by Sir Robert on Death-bed in prejudice of his nearest Heirs in whose place the Pursuer now is by the Apprizing It was alleadged for the Defender no Process upon any Charge to enter Heir against Mr. Iohn Drummond because he is not the nearest appearand Heir but has an elder Brother living The Pursuer answered that the said elder Brother had gone out of the Countrey 18. years agoe and was commonly holden and repute Dead likeas he produced a Missive of one Creiâ—htoun his Commerad in the War abroad bearing the Circumstances of his Sickness Death and Burial Dated Iuly 6. 1667. It was answered that semel vivus semper presumitur vivus nisâ— contrarium probetur and what was alleadged could be no probation but some probabilities of Death The Pursuer answered that the brokard is but presumptio juris and not presumptio juris de jure and therefore only transâ—ert onus probandi which Probation may be valid without Witnesses by such adminicles as the Lords shall find sufficient which are here sufficiently alleadged viz. long Absence common Fame and a Missive Letter The Lords found that eighteen years Absence and being holden and repute Dead was sufficient Probation to take off the presumption of Life unless a stronger Probation for the Parties being on Life were showen then the naked presumption thereof Lauchlen Lesly contra Guthry Feb. 19. 1670. LAuchlen
Disposition bears and under Reversion of a Rosenoble to Sir Robert in his own Life Mr. John Drummond Sir Roberts appearand Heir grants a Bond to Lowrie of Blackwood whereupon he Adjudges the Land from the appearand Heir and pursues a Reduction of the Disposition as done on Death-bed In which Pursuit Witnesses were appointed to be Examined hinc inde concerning Sir Roberts condition when he made the Disposition and thereafter till his Death the sum of the Probation was that before the Disposition Sir Robert had contracted an Apoplexie whereby he remained senseless for a time but by Cure there remained a Palsie in his Tongue and a Vertigo in his Head which continued till his Death and about a year after that the sickness affected his Brain so that he lost the remembrance of Names of things and most of the Witnesses Depones that he was not found thereafter in his Judgement but that he keeped on his Cloathes and was not affixed to his Bed and went frequently and walked in his Garden and to the Court-hill half a pair of Butts off and one of the Witnesses Deponed that he came to his House alone a quarter of a mile off but that he went never to the Kirk nor Mercat nor any publick place Whereupon it was alleadged for the Defender that the Defunct continued in health at and after the Disposition and that his going so frequently abroad was equivalent to his going to Kirk and Mercat which was sufficient to eleid the Reason of Death-bed and that the Palsie being but in his Tongue albeit he misnamed things it did not import his being on Death-bed especially seing he Disponed for payment of his Debt equivalent to the worth of the Land his Disposition being to a Friend of his Name who Relieved him of his Debt his Heir not being his Son nor Descendent and uncapable to Relieve him of his Debt It was answered that the contracting of his sickness being sufficiently proven to be before this Disposition and the continuance thereof to affect his Brain in that case nothing could purge the same but his going to Kirk and Mercat which were the acts required in Law and could not be supplied by his going privatly abroad and not to any popular publick meeting and as to his Debts they could not validat the Disposition by exception though the Defender might by way of action affect therewith the Estate or Burden the Heir on whose Bond it was adjudged especially seing the Disposition buir for Love and Favour and Redeemable for a Rose-noble The Lords found the Reason of Death-bed sufficiently proven and that his private going abroad though unsupported was not equivalent to going abroad to Kirk and Mercat or publick meeting where the Disease continued to affect the Brain But they found the paying of Debts equivalent to the worth of the Land Relevant by way of exception in regard the Disposition buir to be for payment of his Debt Mr. Iohn Wat contra Campbel of Kilpont Feb. 8. 1671. SIr Archibald Campbel being Debitor to Adam Wat in a Sum of Money he did thereafter Contract his Son Mr. Archibald in Marriage with Thomas Moodies Daughter and by the Contract Thomas Moodie acknowledges the Receipt of fourty thousand Pound from Sir Archibald and is obliged for twenty thousand Merks of Tocher all to be imployed for Mr. Archibald in Fee but Thomas Moodies Daughter Dying and leaving no Children behind her Thomas Moodie did restore the Sums and there is a Discharge granted by Sir Archibald and his Spouse and Mr. Archibald bearing them to have Received the Sums and to have Discharged the same Whereupon Mr. Iohn Wat as Heir to Adam pursues Mr. Archibald to pay him the Sum due to his Father upon this ground that he having Received fourty thousand Pounds of his Fathers Means after Contracting of the Debt ought to make so much of it forthcoming as will pay the Pursuer which Action was founded upon the Act of Parliament 1621. whereby all Deeds done by Debitors in prejudice of their Creditors without a Cause Onerous are declared null and all Parties that by vertue thereof Intromets are declared lyable to restore to the Creditors It was answered for the Defender First That the Libel was not Relevant there being no part of the Act of Parliament 1621. that Incapacitats Debitors to Gift or Dispone Sums of Money or Moveables especially if the Disponer at that time be not insolvent but have a sufficient Estate for satisfying his Debt and it is offered to be proven that Sir Archibald had at the time of this Contract a sufficient Estate for all his Debt in the hands of the Earl of Argile and Glenorchie and albeit by the superveening Forefaulture Argiles Debt be insufficient it was a good Debt the time of the Contract so that there can be no ground to make a Child lyable to Restore a Portion given by a Father who was solvent 2dly Albeit the Defender could be lyable if it were clear that he had the Sum foresaid by his Father yet remaining to the fore yet if it had been lost or spent before the Intenting of this Cause he or any subsequent Estate acquired aliunde is not lyable ita est anything he has is a Wodset of fourty thousand Merks on Kilpont and the two Tochers he had viz. twenty thousand Merks from Thomas Moodie and ten thousand Merks of Legacy and twelve thousand Merk of Tocher with Sir William Gray's Daughter was sufficient to acquire the Right of Kilpont without any thing from his Father 3dly The Discharge produced cannot instruct that Mr. Archibald Received the Money because it bears indefinitly that payment was made to Sir Archibald and his Spouse and to Mr. Archibald and all of them do Discharge The Pursuer answered that the Libel was very Relevant for whatsoever might be alleadged of Bairns Portions by a solvent Father yet this being so considerable a Fortune provided to the only Son and appearand Heir if it did not make him lyable to satisfie the Fathers Debt pro tanto it were a patent way to defraud all Creditors and elude the Act of Parliament for the Father might Sell his Estate and provide the Moneys in this manner and as to the Discharge albeit it be indefinite yet it must be presumed that Mr. Archibald Received the Sums because they belong to him in Fee by the Contract of Marriage The Lords found the Libel Relevant and that the Discharge produced did presume that Mr. Archibald the Feear did Receive the Money but seing the Probation was not expresse but presumptive they allowed Mr. Archibald to condescend upon what Evidences he could give that the Money or Surety thereof was Delivered to his Father Iohn Will contra The Town of Kirkaldy Feb. 11. 1671. JOhn Will pursues the Magistrats of Kirkaldy for paying the Debt of a Person Incarcerat in their Tolbooth who was letten escape by them It was alleadged for the Town that the Person Incarcerat had escaped vi
the same to her in Liferent for her Liferent use only and after her Decease to William Mauld her Son and his Heirs and another Bond bearing him to have Received from the Relict a thousand Merks in name of Henry Mauld her Son and obliging him to pay to the said Henry and his Heirs and after all he granted a Bond of ten thousand Merks to the Relict her Heirs and Assigneys which was made up of what remained due of all the three this Bond the Relict Assigned to the Laird of Touch who having Charged Ardrosse and he having Suspended there arose a Competition betwixt Touch as Assigney and Agnes Dundasse as Heir and Executrix to Mr. Henry William and Henry Maulds and thereupon a division of the Sums betwixt the Parties thereafter Agnes Dundasse pursues Ardrosse to make payment to her as Heir and Executrix to William and Henry Maulds of two thousand Merks which he was Addebted to the said William and of one thousand he was Addebted to the said Henry Whereupon he hath Deponed that he was Debitor by all the saids Bonds before related and no otherways and that in the former Decreet by mistake it was exprest that the ten thousand Merks Bond was made up of the eight thousand Merks Bond and of two thousand Merks of Annualrent thereof whereas the truth was it was made up by what was resting of the two Bonds due to William and Henry which he produced cancelled of the Tenor foresaid It was alleadged for Agnes Dundasse that the Sums of these Bonds behoved only to belong to her as Heir and Executrix to William and Henry Maulds and not to Touch as Assigney by the Relict It was answered First That the said Agnes had Homologat the prior Decreet and division therein made by giving Discharges accordingly could not claim any more 2dly Another having taken a Bond in the Name of her two Sons being Bairns in her Family might lawfully alter the same at her pleasure there being nothing more ordinar then that Fathers gives Bonds of Provision to their Children or takes Bonds from their Creditors in their Names yet these being never Delivered the Parents may Dispose of them at their pleasure It was answered for the Executrix that the alleadgeance of Homologation is not Relevant because it is Emergent by Ardrosse his Oath that the ten thousand merks Bond was not made up by the Annualrent but by the said two Bonds so that there could be no Homologation of that whereof the Executrix was excusably ignorant To the second That albeit Fathers granting Bonds of Provision in Name of their Children may alter the same at any time before Delivery Yet where they lend out the Sum to a Creditor and take him obliged to a Child in Fee that cannot be â—ltered especially where the Parent is naked Liferenter and hath not reserved a power to lift and Dispone but whatsoever be in the case of a Father providing his Children who can by no presumption be thought to have any Means yet after the Fathers Death a Mother taking a Bond in the Name of a Bairn it must be presumed to be the Bairnâ— Money coming by the Father or otherwise and the Mother having stated her self naked Liferentrix in the one Bond and having no interest in the other Bond she could not recal or alter the same in prejudice of the Children especially seing they were Infants and had not Tutors to care for them It was answered that the Mother had held count for the whole Means of the Father and so had cleared any presumption that thir Boâ—â—s could be of his Means but she Liferented the whole Estate and made up thir Bonds out of the Rents and Annualrents and denyed to be Tutrix or Pro-tutrix so that the Money being freely her own and her Children having died before her she might warrantably alter the Bond. The Lords found that the Mother could not alter the Bonds taken in favours of her Children from a Debitor being of the Tenors above-written wherein she was naked Liferenter of the one and had not so much as a Liferent of the other and that the Sums were rather presumed to be of the Bairns Means then her own seing they had no Tutor and any medling with their Means was by her self and that their Executrix could not now be put to instruct what Means they had or be countable thereupon Iohn Armour contra Iames Lands February 21. 1671. IOhn Armour pursues his Tennents of some Tenements in Edinburgh for Meals and Duties Compearance is made for Iames Lands who produces a Bond granted by umquhil George Armour bearing that George Armour as Tutor Testamentar to Iohn Armour had borrowed 500. merks from Iames Lands and obliges him his Heirs Executors and Assigneys to repay the same and thereby sets some of the saids Tenements to Iames Lands ay and while he be satisfied of the 500. merks and thereupon alleadges he must be preferred to the Mails and Duties till he be payed It was answered this Bond and Tack were not sufficient in respect he does not bind himself as Tutor nor the Pupil but his own Executor and Assigneys and so it must be the Tutors own Debt 2dly This Debt cannot burden the Pupil simply upon the Assertion of the Tutor but the Creditor ought to have seen the Sum applyed to the Pupils use and therefore must yet alleadge in rem versam Otherways if the naked Assertion of Tutors may burden the Pupils when they borrow their Name it is a patent way to destroy all Pupils Tutors being oftimes insolvent 3dly The Tutor could not set a Tack of the Pupils Lands Longer than he had Interest as Tutor Ita est the Tutory is ceassed by the Tutors Death The Lords found that this Creditor behoved to instruct the Sum applyed to the Pupils behove which being proven they Sustained the Tack Alexander Pitâ—â—irn contra February 22. 1671. ALexander Pitcairn having Right by progress to a Wodset granted by Iames Kininmouth to Mr. Iames Gordoun and by him Disponed to Sir Archibald Sydserf and by him to the Pursuer pursues the Tennents for Mails and Duties who alleadged that Gordoun or Sydserf were satisfied by intromission with the Rents for which they were comptable It was Replyed that Sir Archibald Sydserf had obtained Declarator of the expyring of the Reversion and was neither Countable nor Redeemable and for proving thereof produced the Decreet of Declarator in Anno 1637. against which it was objected that it was null because albeit the Libel was upon a Clause irritant whereby it is provided if the Money were required and not payed within such a time the Reversion should expire yet at the Compearance and Production there is no mention thereof albeit at the Conclusion the Decreet bears because the Libel was sufficiently proven by Production of the Writs aforesaid which can be only understood of the Writs in the Production and it is not enough only that they were libelled upon for in all Decreets
declarator of Distress or Eviction but a pursuit of Removing or Mails and Duties upon Eviction is sufficient which cannot be excluded by a possessory judgement upon 7. years Possession by the publick Infeftment unless it were 7. years after the Eviction February 20. 1668. Forbes contra Innes Base Infeftments granted by a Father to his two Sons of the same date one of Property of Lands and another of annualrent forth thereof was found both valide as being cled with the Fathers possession reserved in both there being no suspition of defraud of Creditors or competition with them and that a singular Successor appryzing and Infeft from the one was not preferable to a posterior Adjudger from the other Iune 30. 1668. Chem contra Chrisly A base Infeftment of annualrent was found validate by Possession upon another Infeftment of annualrent in corroboration of the former out of distinct Lands whereby both Infeftments as to both Lands were found valide though no payment was made by the Debitor or by the Tennents in the first Infeftment Iuly 9. 1668. Alexander contra the Laird of Clackmannan A base Infeftment to a Creditor was preferred to a posterior publick Infeftment granted to a Wife by an additional Ioynture in respect there was a Citation on the base Infeftment anterior to the Wifes publick Infeftment which was found to validate the same and sentence of preference of poynding of the Ground was now granted therein Ianuary 27. 1669. Bell of Belfoord contra Lady Rutherâ—oord A base Infeftment never cled with Possession was found valide to exclude the Terce of the granters Relict Ibâ—dem A base Infeftment by a Father to his Children was found not validate by the Fathers Possession wherein he continued albeit he had a Factory from the Children here it was not alleadged that the Father had granted Discharges or used Citation expresly relative to the Factory Iuly 10. 1669. Gairdiner contra Colvil BASTARDY being gifted by the Vsurpers defends the Bastards Debitors no further than what they bona fide payed to the Donator but not for what was yet in their hands which belongs to the Kings Donator Iuly 19. 166â— Windrham contra Megregors Bastardy was found not to be relevantly Libelled that the Defuncts Father and Mother were not Married but that it behoved to be alleadged that the Defunct was commonly holden and repute Bastard But that it was also sufficient that the Defuncts taking a Legitimation had acknowledged his Bastardy February 19. 1669. Kings Advocate contra Craw. Bastardy was found not to be inferred by the negative presumption that the Father and the Mother were not Married but that it behoved to be proven positive that the Defunct was holden and repute Bastard Iune 15. 1670. Livingstoun contra Burn. Bastardy puts the Donator to no better case as to Back-bonds or mutual Obligements than the Bastard his Heir would have been in Iune 20. 1671. Alexander contra Lord Saâ—toun BEHAVING AS HEIR by intrometting with the Mails and Duties of the Defuncts Lands was elided because the Defender intrometted singulari titulo by an Appryzing though the Legal was not expired unless it had been clearly satisfied by intromission or otherwise Ianuary 10. 1662. Barclay contra Laird of Craigivar Behaving as Heir was found in no time coming to be â—lided by taking Right to any Appryzing or Adjudication led against the Intrometters for their own Debt real or simulate though such Rights were expired February 28. 1662. Act of Sederunt Vide Ianuary 22. 1662. Glendoning contra Earl of Nithisdail Behaving as Heir was not inferred by Inâ—romission with the Rents of the Lands which were disponed by the Defunct and Infeftment thereon but to the behove of the Defender the appearand Heir Ianuary 14. 1662. Harper contra Hume of Plandergaist Behaving as Heir was inferred by the appearand Heir his inâ—rometting with the Rents of Lands belonging to his Father the Debitor in so far as being disponed to the Defender they were Redeemed by him though no Declarator or new Infeftment followed and also found by intrometting with the Fathers whole Silver-work without alleadging a formal drawing of the Heirship or taking any of them as such and though the Lands were Appryzed from the Defunct seing the Legal was un-expired and the Defender had no Right from the Appryzer February 21. 1663. Hamiltoun contra Hamiltoun Behaving as Heir by intrometting with Heirship was not â—lided because the Defuncts Lands were apprized seing the Legal was not expired before his death February 26. 1663. Cuthbert of Drakies contra Mâ—nro of Foulis Behaving as Heir was not â—nferred by intromission with the Rents of the Defuncts Lands which were appryzed and whereunto the appearand Heir acquired Right before he fell to be apparent Heir though he continued to possess after the appryzing was satisfied by intromission February 26. 1663. Inter cosdem Behaving as Heir was elided as to Heirship because the Defunct dyed Rebel and his Escheat was gifted and declared Ibidem Behaving as Heir by medling with heirship was not elided because the Defunct dyed at the Horn and thereby nihil habuit in bonis nor yet that the Escheat was gifted before intenting of this cause but that it was gifted and declared before Iune 10. 1663. Gordoun of Lâ—smore contra Keith Behaving as Heir was elided because the Defunct was Rebel his Escheat gifted and the appearand Heir intrometted by the Donators Rights or Tollerance and that before intenting of the Cause albeit no declarator thereon Iuly 4. 1665. Innes contra Wilson Behaving as Heir was not Sustained upon Intromission had by a Tutor November 30. 1665. Boyd contra Tâ—lziâ—er Behaving as Heir was not Sustained by Heirs of Line their Renuncing to be Heirs in favours of the Heir-male to whom the Father had disponed seing they gave no Right thereby hurtful to Creditors but gave a Renunciation voluntarly which Law would have compelled them to give though for their kindness they got a sum of Money Iuly 5. 1666. Scot contra Heirs of Auchinleck Behaving as Heir by Intromission with the Rents of the Defuncts Lands was elided by Tollerance from a Donator of Recognition albeit not declared till after the Intromission the Defender paying the single value Iuly 17. 1666. Ogilby contra Lord Gray Behaving as Heir by intromission with the Duties of the Defuncts Lands was elided by a Disposition from the Defunct to the Intrometters Son the Defuncts oye though without Infeftment or by a Tack by the apparent Heirs Husband though expired before the Defuncts death as continuing per tacitam relocationem Ianuary 16. 1667. Reâ—d contra Salmond Behaving as Heir was Sustained by Exception Ianuary 8. 1668. Forbes contra Innes Behaving as Heir was found to be instructed by a Discharge granted by the Party as appearand Heir bearing receipt of the Defuncts Charter Chist without any Inventary or Protestation and keeping of it two years without necessity to alleadge that any use was made of the Writs but was not inferred by raising
Roxburgh DONATAR of Forefaulture obtaining Decreet of Parliament upon fewer dayes citation then are required by Law Reducing an Infeftment on this Ground that it is holden of the Forefault person base un-confirmed and so excluded by the Forefaulture and not upon the five years possession of the Forefault person as heretable Possessor The Lords Sustained the Decreet February 22. 1665. Marquess of Huntly contra Gordoun of Lesmore A Donatar of single Escheat though excluded by the diligence of the Creditors of the Rebel before declarator upon debts before Rebellion was found not to extend to prefer an appryzing of a Wifes Liferent led against her Husband as having right thereto jure mariti in prejudice of the Donatar of the Husbands single Escheat though the Appryzing was before Declarator for a debt before Rebellion seing the Liferent had tractum futuri temporis and is not as Moveable Sums Iuly 18. 1668. Earl of Dumfreis contra Smart DOVBLE POINDING being raised in Name of Tennents by one of the Parties competing the same was sustained though the Tennents did disclaim the same and that the other party was their present Master his possession being but of late and controverted it was also sustained though there was no particular duties libelled but in general to be answered of the Mails and Duties as is ordinary in Decreets conform Iuly 14. 1665. Earl of Argile contra Dinloch and Rara A Double poynding calling two Ministers and preferring one the other being absent was found not irreduceablâ— by the Act of Parliament anent double poindings seing the Decreet was only general without expressing the Teinds in question and so was only found valide as to what was uplifted but not in time coming without having a Right Iune 15. 1667. Gray contra IN DVBIISâ— interpretatio facienda contra proferentem qui poâ—uit sibi legeâ—â— dixisse clarius Iuly 29. 1665. Dowglas contra Cowan EIECTION vide Clause in a Tack December 19. 1661. Dewar contra Countess of Murray Ejection was not sustained at the Instance of an Heretor by the Tennents ceding the Possession to a Stranger seing the Tennent pursued not and that Tennent was not in natural possession but both were to compet for the duties that party having given an obligement to cede his Right December 21. 1661. Montgomry contra Lady Kirkcudbright Ejection at the instance of Heirs infants who had an old Infeftment but were not Infeft themselves was Sustained for re-possessing albeit the Defender obtained Decreet of removing against their Mother and entered thereby though the Decreet bear to remove her self â—airns Servants c. The Pursuer being then in her Family February 19. 1665. Scots contra Earl of Hume Ejection was sustained upon putting the Pursuer out of his House and Land Naturally possessed by him though the Ejecter obtained Improbation against the Pursuer and thereupon Removing seing he entered not legally by Letters of Possession But this was not extended to the Lands possest by Tennents who were induced to take Right from the Ejecter to give violent profits of these Lands Iuly 25. 1668. Campbel contra Laird of Glenureâ—y ERECTION granted by the King erecting Kirk lands into a Temporal Lordship was found not to be habilis modus while the same was not vacant but in the hands of a Commendator albeit he was dishabilitat to brook any Estate by his Fathers Forefaâ—ture at the time of the erection seing his dishabilitation was thereafter rescinded in Parliament because he was no ways accessory to his Fathers crime whereupon his Temporal Provision was validate and the erection medio tâ—mpore was postponed to a posterior erection to the Commendator himself upon his own dimission February 24 1666. Sinclar contra Laird of Wedderburn ESCHEAT single was found to reach a sum due as the Liquidation of an obligement not to alienate Lands which was found moveable quo ad fiscum albeit it came in the place of the Right Heretable which would have belonged to the Heir February 4. 1663. Laird of Philorth contra Lord Frazer An Escheat gifted by the King was excluded by a Creditor who arrested during the Rebels life and pursued to make forthcoming after his death he having none to represent him in mobilibus dying at the Horn and so needed no Decreet establishing the debt in one representing the Defunct and calling the Representatives in the action for making forthcoming albeit the Arrestment was laid on after the Rebellion but before declarator and for a debt contracted before the Rebellion February 19. 1667. Glen contra Hume Escheat was found to carry a Bond bearing annualrent the Rebellion â—alling before the first Term of payment of the annualrent Iune 26. 1666. Dick contra Ker. Vide Donator of Escheat Escheat was not burdened with debts contracted after Rebellion February 24. 1669. Countes of Dundâ—e contra Straâ—town Vide Gift of Escheat AN EXECVTOR pursuing a debitor of the Defuncts was not excluded by Compensation because that debitor had taken Assignation from the Defuncts Creditor after the Defuncts death seing thereby the Defuncts debitor might prefer one of the Defuncts Creditors to another which neither a Debitor nor Executor can do but according to their diligence February 14. 1662. Children of Mouswal contra Lowry of Maxwelstoun In a Competition of Executry of Defuncts amongst their Creditors all who do diligence within six Moneths of the defuncts death by Confirming themselves Executors Creditors or intenting any Action against the Executor or Intromettor should come in pari passu by Act of Sederunt February 28. 1662. An Executor was found lyable to pay a Creditor of the defuncts albeit it was the price of Land sold to the defunct by a Minute without restricting the debitor to the Heir who would only get the disposition or causing the Creditor dispone the Land to the Executor in lieu of the Moveables but reserving to the Executor to seek relief of the Heir as accords Iuly 1. 1662. Baillie contra Hendrison Executors were found lyable for an Annual payment for years after the defuncts death February 5. 1663. Hill contra Maxwel In the Executry a Child dying before Confirmation of the Mothers third the Father being alive was found not to transmit to the Father as nearest Agâ—at but to the Mothers brother and that it was not in the case of the Legitim from a Father which is Transmissible without any Confirmation or adition to the Succession February 17. 1663. Forsyth contra Paâ—oun Executry was found bipartite where there was but one Child which was Forisfamiliat and provided without alleadging in satisfaction of the Bairns part seing here the Child offered not to confer February 18. 1663. Dumbar of Hemprigs contra Frazer An Executors proper Creditor competing with a Creditor of the Defuncts both on Arrestments of a part of the Defuncts Inventary the Defuncts Creditor was preferred to the Executors doing more diligence especially before this Sum was established in the Executors person by Decreet Iuly 8. 1664. Veâ—ch contra
stat sententia dubius est eventus litis neither can Reduction which is a petitory Judgement sist the Pursuers Process which is a possessory Judgement upon pretence of prejudiciallity otherwise Possession might still be inverted upon such pretences Nor can the Earl be put from his Possession thereby Especially for the years preceeding the intenting of the Reduction The Lords Repelled the Defense as to the years ante litem motam by the Reduction but Sustained it for the years since in respect the Earls Possession was not clear and that the Valuation was exorbitant near as great as the Stock Hellen Hepburn contra Hamiltoun of Orbestoun December 12. 1661. HEllen Hepburn as Executrix to her Father Humbie Pursues Sir Iames Hamiltoun of Orbestoun for payment of a 1000. merks due to her Father by Bond. The Defender alleadged Absolvitor because there being a Bond of 10000. pounds granted by Balhaven Humby Prestoun and Orbestoun for the use of the late Duke of Hamiltoun but there being nothing to Instruct that it was the Dukes Debt yet there was a Transaction with the Dutches of Hamiltoun for a lesser Sum whereof Balhaven Prestoun and the Defender had payed their part by which Transaction the Pursuers Tutrix and Overseer did agree to quite this Bond in respect that her Father was acquited of any share of the Bond of 10000. pounds The Pursuer answered First That the Defense ought to be Repelled because being but a Verbal Agreement before Writ was subscribed either Party might Resile Secondly The Transaction cannot be Instructed there being no Write and Witnesses are no competent neither can the Tutrix Oath prove against the Pupil The Defender answered to the first that the Transaction being pactum liberatorium it required no Write and so there was not locus penitentiae And as to the Probation of the Transaction though Tutors Oath of Knowledge of any Debt of the Pupils Predecessors will not prove against the Pupil because the Tutor is singularis testis and not in officio But a Tutors Oath as to Deeds done by himself in officio would sufficiently prove the same The Lords thought there was not locus penitentiae from the Traâ—saction though but Verbal but as to the manner of Probation they ordained the â—utrix and overseers Oaths to be taken ex officio Gordoun of Gight contra Abercrombie of Birkbog Eodem die SIR Alexander Abercâ—ombâ—e of Birkbeg having obtained Decreet of of Ejection against Sir George Gordoun of Gight for Re-possessing him in certain Lands and paying the double Rent for the violent Profits Gight Pursues Reduction of the Decreet on these Reasonsâ— First because there was no Law nor Practick to make the violent Profits of Lands without Burgh to be the double of the Rent which is only competent by Custom in prediis urbanis Secondly The Ejection was prescribed not being intented within three years conform to the Act of Parliament Thirdly Gights Defense of Entring in vacuum possessionem was only found probable scripto vel juramento whereas being facti it was probable by Witnesses The Lords Repelled the First and Second Reasons as Competent and emitted in the Decreet and as to the Third The Decreet did bear the alleadgence in the Decreet to be Gights entring into void possession with consent of Partie which consent not being qualified by any palpable fact was not Probable by Witnesses Iames Hamiltoun contra the Tenents of Oversheâ—ls December 13. 1661. JAmes Hamiltoun Merchant in Glasgow having right to two apprysings of the Lands of Oversheils Pursues the Tennents for Mails and Duties and after Litiscontestation Iohn Rollane Writer Compears for his interest and produces an Apprysing at his Instance with a Charge against the Superiors It was alleadged he could not be admitted in this state of the Process The Lords admitted him in respect he craved no alteration to be in the Litiscontestation but concurred therein and craved Preference to what should be found due thereby The said Iohn being admitted alleadged he ought to be Preferred because he had charged the true immediate Superiour whereas the other two Apprysers had taken Infeftment as if the Lands had holden immediatly of the KING It was answered for Iames Hamiltoun that he ought to be preferred because he was Infeft long before Iohn Rollane and supposing his Infefment were not of the immediate Superiour yet being in Possession by vertue thereof five or six Years he hath the benefit of a Possessorie Judgement and his Infeftment cannot be taken away without Reduction The Lords preferred Iohn Rollane and granted not the benefit of a Possessorie Iudgement without seven years Possession Iohn Boyd contra Laird of Niddrie and Edmonstoun Eodem die JOhn Boyd as Assigny Constitute to a Bond of a thousand merks by Wolmet charged Niddrie the Debitor who Suspends on double Poynding In which Compearance was made for Iohn Boyd who having declared upon Oath that the Assignation was to his behove for the satisfaction of the Sum of fourteen hundred pounds and that the remainder was to Wolmets own behove according to which he had granted back bond to Wolmet and thereafter granted a second back bond to Major Bigger oblidging him to make the Sum forthcoming to Biggar which was done before any Arrestment but depones that he knows at that time his first back bond was given and that a Discharge of his first back bond produced was by a mistake keeped up by Major Biggar and not delivered up to him till within this few days upon this Oath the Laird of Edmonstoun who had arrested all Sums due to Wolmet in Niddries the Suspenders hand in Iune 1658. alleadged That the ought to be preferred to Biggar because it is clear by the Oath that the superplus of the Sum was to Wolmets behove and he having arrested it before the discharge of Iohn Boyds first back bond was delivered to Iohn Boyd or expresly delivered to Iohn Boyd's behove or otherwayes that the first back bond were re-delivered no deed that Iohn Boyd could do without Wolmets expresse consent could prejudge Wolmets Creditors It was alleadged for Biggar that albeit the first back bond was not delivered back to Iohn Boyd before the Arrestment nor the discharge delivered to him yet Wolmet having subscribed the discharge and delivered it albeit it came not to Iohn Boyds hands it was sufficient to take away the first black bond The Lords preferred the Arrester and found the discharge could operat nothing unlesse it were delivered to Iohn Boyd or some Person to his behove before the Arrestment for they thought if discharges by Creditors put in a third Parties hands not delivered to the Debitor should be sufficient it would eâ—ervart all Arrestments unless the deliverie were exprest to the Debitors behove Homes contra Iohn Bonnar December 14. 1661. MAry and Homes as Donatar to the Escheat and Liferent of Umquhile Iohn Home pursued Iohn Bonnar for Compt Reckoning and Payment of the Sum of 16000. merks due to the Rebel
for the price of a House The Defender alleadged absolvitor because he had bona fide made Compt Reckoning and Payment to Mr. Alexander Home Assigny Constitute by the Rebel before any Citation or Diligence done against him to put him in mala fide so to do and produced the Assignies discharg bearing that the Defender had made Compt with the Assignyâ— and that there remains only the Sum of 1100. merks which he acknowledgeds to have received and therefore discharged him of the whole The Pursuers alleadged the discharge not bearing Payment of the whole Sum but only of 1100. merks nor yet bearingâ— that the Instructions were given up to the Assigny cannot exoner the Defender but he must yet Re-produce the Accompt and Instructions thereof likeas he has produced a great part thereof in this Process because no discharge could be relevant to liberat this Defender but only payment made bona fide The Lords found the Discharge sufficient to liberat the Defender mainly because albeit the Discharge mentions not the Instructions to be given up yet the Defenders was not oblidged to preserve the same or be at the hazard thereof The Pursuer further offered them to prove that the Defender had yet in his hand the accompt and whole Instructions and therefore ought to repreduce the same that the Lords might consider whether the Rebells Assignyes had allowed any thing to him which ought not to be allowed and did belong to the Donatar which the Lords sustained Iames Dewar contra Countess of Murray December 19. 1661. JAmes Dewar pursues the Countess of Murray for Ejecting him out of certain Lands whereof he had Tack and Spuilzing from him certain Goods The Defender alleadged absolvitor because there was a Clause in the Pursuers Tackâ— providing that if two Years Dutie run together the Tack should expire and in that Case he Renunced the Tack and thereafter the Pursuer having Compted with the Defenders Chamberlain by Writ produced he acknowledged himself Debitor in such Sums and such Duties for bygone Years with this Provision that if he Failzied in payment thereof my Lady should at her own hand intromet with the Corns and others lybelled which were disponed to her for satisfaction of the Rent and likewise it should be leisum to my Lady to set the Lands to any other Tenent thereafter at the Term of Mertimess and to Dispose thereof at her pleasure The Pursuer answered non relevat unlesse by Authority of a Judge the Failzie had been Declared The Defender answered maxime relevat because Declarators are only necessar in Reversions Back-tacks or Infeftments being of great Importance but not in ordinar Tacks betwixt Master and Tenent The Lords found the Defense relevant founded upon the Accompt and Bond in respect of the Tenor thereof as a foresaid but would not have so done upon the Clause of the Tack unless it had born expresly a power to enter to the Possession at any time brevi manu The Pursuer further Replyed That the Defense ought to be repelled because he offered to prove before the Ejection he had payed a great part and offered the rest The Lords having considered the Instructions of Offence produced found that it was not Speciall bearing any Sum of money produced or offered and that there was no Consignation following thereupon and therefore sustained the Defense notwithstanding the Reply Earl of Rothes contra Countess of Buckâ—leuch December 20. 1661 THE Earle of Rothes as Donatar to the Waird of the Countess of Buckcleugh and the said Countess for her self pursued the Tutors of Buckcleugh for Exibition of the Charter Chist and heal Evidences and Writs therein that the Donatar may have Inspection thereof to the effect he may knowâ— what Lands are Waird The Tutors Compeared and disclaimed the Pursuit at the Pupils Instance and alleadged First No Process till the Countess were called 2dly The Lybel is not Relevant to conclude Inspection of all Writs whereunto the Donator can pretend no interest 3dly Non relevat for any Writs because no body is oblidged edere Instrumenta contra se. 4thly If there were any ground for this Pursuit the Lands holden in Waird behoved to be particularly Lybelled The Lords Repelled the first Defense inrespect the Countess was in processu and found the second Defense to restrict the Inspection only to the Countess and her Sister and Father there Retours and Warrants thereof and no more unlesse the Pursuer condescend particularly of other Waird Lands and appointed one of their number to have Inspection of the Charter Chist who should show the the Procutators of either Partie such of the Writs as they found were Waird Hewâ— Montgomerie contra Lord Kirkcudbright Eodem die HEw Montgomerie of Grainshaw and Meclellane his Spouse pursues the Lady Kirkcudbright for Ejecting them out of the five pound Land of Overlaw and craved Re-possession and payment of the Maills and Duties intrometted with The Defender alleadged no Process because it is not alleadged that the Pursuers was in Natural Possession for only the Natural Possessors can have Decreet of Ejection because if there be no deed of violence Lybelled but only Intrometting with the Maills and Duties Ejection is not competent nor any Violent Profits but only Action for Maills and Duties against the Tennents or Intrometters The Pursuers answered That Ejection may be Competent though the Pursuer was not in Natural Possession when a Tennent is Ejected and a Stranger without Interest enters in the Natural Possession albeit the Tennents should Collud or neglect the Heritor having but civil Possession by uplifting of Maills and Duties needs not warn the Ejecter but may crave to be Entered to the Natural Possession and the Violent Profits The Defender alleadged the Case is not here so unlesse it were alleadged the Tennents were cast out but the Defender may Defend the Right to the Maills and Duties upon a better Right then the Pursuer The Pursuer answered That he declared he craved only Re-possession to the ordinar Profits The Lords Ordained the Parties to Dispute their Rights to the Maills and Duties and Possession as in a Double Poynding and as if the Duties were yet in the Tennents hands The Defender alleadged further that she hath right to the Maills and Duties because she offered her to prove that the Pursuers Father in Law granted a Back-band oblidging himself and his Heirs to Re-dispone these Lands to Umquhile Robert Lord Kirkcudâ—right from whom the saids Lands were Appryzed to which Apprysing the Defender hath Right and thereby has Right to the Back-bond and that the Defenders Wife represents her Father as Heir or at least as Lucrative Successor after the Back-bond and so as he might thereupon have debarred the grant of the Back-bond so might the Pursuer as Representing him The Pursuer alleadged 1. Non Relevat because the said Back-bond is but a Personal Obligation and the Defender had thereupon no Real Right but only to the Superioritie because by discharges of the
is special enough bearing the Ware of the Shop to be Silks Stuffs and others worth 4000. merks and the Confirmation alone Constitutes the Property unto the Executor because he is Haeres mobiliâ—m and the Property being before in hereditatae jacentâ— ipso facto by the Confirmation it is Established in the Executor Secondly by the constant practice of this Kingdom there could no second principal Confirmation but only ad oâ—issa and she could never Confirm that which the first Executor had Confirmed The Defender answered that by Act of Sederunt of the Judges in the Usurpers time all Executors Confirming within six Moneths after the Defuncts Death were ordained to come in together and therefore it was then the Custom that all Confirmed principally the same things seeing they could get no more then what was in their Confirmation And the Defenders Confirmation being at that time must be sustained The Pursuer answered that the Defender cannot have the benefit of that Act of Sederunt because she Confirmed not within six Moneths after the Defuncts Death The Defender answered she Confirmed within six Moneths or six or seven Dayes more which is an inconsiderable difference The Lords preferred the first Executor to the Goods in the Shop Mr. Iohn Veach contra Byel of Bassinden Eodem die MR. Iohn Veach as Assigney by Iohn Edgar of Wedderlie to a Reversion pursues Declarator against Byel of Bassinden the Wodsetter who alleadged Absolvitor because the premonition is null being by a Procurator and not bearing the Procuratory produced neither the Pursuers Assignation to the Reversion The Pursuer answered non relevat unless it were alleadged that they had been demanded at that time and had not been shown Secondly If need beis he offers him to prove by the Defenders oath that the Procuratory was then shown The Defender answered the Procuratory is not yet produced and the Pursuer was oblieged to have shown it then albeit not called for The Lords sustained the Order the Pursuer reproducing the Procuratory and proving by the Defenders Oath that the Procuratory was then shown Alexander Colquhoun contra his Creditors Eodem die ALexander Colquhoun in Glasgow pursues Liberation supercessione bonorum The Defenders alleadged Absolvitor because they offer them to prove that the Pursuer did wittingly deceive them in borrowing sums and taking of Ware from them after he knew that he was insolvendo and Bankrupt The Pursuer answered nonrelevat against Liberty which is a favourable Cause and can be stopped by nothing but fraudulent Deeds since the Incarceration or offering of Aliment The Defenders craved that if the Lords inclined to grant Liberty that the Pursuer might be decerned to sit upon the Dyver-stone and wear the habit The Pursuer answered that was long since out of Custome The Lords before answer ordained the Pursuers oath to be taken upon the Defense whether he did contract these Debts after he knew himself insolvent and bankrupt and they resolved if it was so found they would not grant him Liberty without sitting upon the Dyver-stone and wearing the Habite Laird of Polwart contra Hooms Ianuary 21. 1662. THe Laird of Polwart pursues a Declarator of Redemption against Hooms who alleadge Absolvitor because the Reversion was not fulfilled which bore the sum of a 1000. merks and a Tack for 19. years after the Redemption The Pursuer answered the Alleadgence ought to be Repelled because the Lands Wodset is worth 400. merks by year and the Tack-duty is only four pounds and so it is an Usurary Paction whereby the Wodsetter will have much more then his principal sum and his Annualrent and so it is null by the common Law and by special Statute Par. 1449. cap. 19. bearing that when Wodsetters take Tacks for long time after the Bond be out quite such Tacks shall not be keeped after Redemption unless they be for the very Mail or near thereby The Defender answered First That Statute is but an Exception from the Immediat preceeding Act of parliament in favours of Tennents that their Tacks shall not be broken by singular Successors buying the Land and therefore is only understood in that case when the Wodset Lands are bought from him that hath right to the Reversion by a singular Successor but this Pursuer is Heir to the granter of the Wodset 2ly That Act is long since in desuetude 3ly Whatever the Act might operate amongst strangers yet it is clear by the Contract of Wodset produced that the Wodset was granted by the Laird of Polwart to his own Brother and so must be Repute to be his Portion Natural and the eldest Brother might well grant a nineteen years Tack to his youngest Brother albeit there had been no Wodset Likeas in the Wodset there is Reserved the Liferent of a third Partie who lived thirty six Years thereafter during which time the Wodset got no Rent The Lords found the Defense and Reply relevant and Ordained no Declarator to be extracted till the Tack were Produced and given up to the Wodsetter Laird Balvaird contra Creditors of Annandail Eodem die THE Laird Balvaird As Heir of Tailzie to David Viscount of Stormont in the Lands of Skun Pursues the Heirs of Line of the said David and Mungo Viscount of Stormont and several their Creditors Lybelling That by an Infeftment of Tailzie of the saids Lands made by the said David Viscount of Stormont It is expresly Declared and Provided That none of the Heirs of Tailzie shall do any Deed prejudicial to the Tailzie or contract Debt whereby the Tailzie may be altered otherwayes the Debt so Contracted shall be null and the Contracter shall ipso facto lose his Right of Propertie which shall belong to the nearest Person of the Tailzie and subsumes that the late Earl of Annandail last Heir of Tailzie Contracted Debts which might effect the saids Tailzed Lands and concludes that it ought to be Declared that thereby he incurred the Clauses itritant in the Tailzie and lost his Right of Propertie and that all the Bonds Contracted by him and Appryzed upon are null quoad these Lands and that the Pursuer as nearest Heir of Tailzie may enter Heir in these Lands to David and Mungo Viscounts of Stormont and enjoy the same free of any Debt Contracted since the Tailzie The Creditors alleadged no Process to Annul their Bonds and Apprysing hoc ordine by way of Declarator but the Pursuer must via ordinaria Reduce in which Case the Creditors will have Terms granted them to produce the Writs called for to be reduced which Priviledge being in their favour ought not to be taken from them in this extraordinar unformal way The Lords repelled the Defense and sustained the Summons in respect there was no Bond craved to be produced or simplie reduced but only that any Bonds granted to the Defenders since the Tailzie are null and all following thereupon as to the Lands in Tailzie which is no more then that they affect not the Lands in the Tailzie
and there is no necessity of Reduction but where the Writs must be Produced before they can be Reduced and even in that case if the Pursuer satisfie the Production himself the Defender hath no delay and here the Pursuer produces all that is necessar and craves the rest to be Declared null in consequence The Lords sustained the Summons Glendinning contra Earl of Nithisdale Ianuary 22. 1662. GEorge Glendinning of Partoun pursues the Earl of Nithisdale for fulfilling of a Contract of Excambion betwixt the Earls Father and the Pursuers Grand-father and insist against the Earl as lawfully charged to enter Heir to his Father The Earl alleadged absolvitor because he offers him to Renunce to be Heir The Pursuer replyed the Defense ought to be repelled quia res non est intigra because the Earl has done a Deed prejudicial to his Renunciation viz. he granted a Bond for two thousand pounds sterling to the Earl of Dirltoun only simulatlie to his own behove whereupon his Fathers whole Estate was adjudged and that Adjudication assigned to the Earl himself and so he having intrometted be that Simulat Title with the Maills and Duties of his Fathers Lands he hath behaved himself as Heir and cannot Renunce The Defender duplyed that the Reply ought to be repelled because he offered not only to Renunce but also to Purge that Deed of his and the Adjudication of two thousand pounds sterling and to declare that it should not prejudge the Pursuer nor his Fathers lawful Creditors and that he should be comptable for the Price of any Lands he had sold or any Rents he had uplifted The Pursuer triplyed that the duply ought to be repelled because medio tempore the Earl had bought in expired Apprisings with the Profits of the Lands The Defender quadruplyed that he was content to restrict any such Rights to the Sums he truly payed for them and not to exclude the Pursuer by them The Pursuer Answered That he having once behaved himself as Heir no Offer nor Renunciation could be received The Defender Answered that his Intromission could not be gestio pro herede because it was singulari titulo and not as Heir and in gestione there must appear animus adeundi aut immiscendi The contrair whereof is here for the granting of the Bond and the taking right to the Adjudication thereupon was of purpose that his Intromission might not be as Heir or as immixtion which can never be without an illegal and unwarrantable Deed but all that was here done was Legal there being no Law nor Custom to hinder the Earl to grant a Bond albeit gratis and after Dirltoun had Adjudged the Lands there was no Law to hinder the appearand Heir to take Assignation thereto and bruik thereby more then a Stranger and albeit there were Simulation or Fraud that might be a ground to Reduce upon but not to infer a general passive Title to make the Defender lyable to all his Fathers Debts from which Passive Title qui res colleratus titulus excusâ—â— and albeit this Passive Title be not any where else in the World but in Scotland yet it was never applyed to this Case now in question but by the contrare since the Act of Parliament one thousand six hundred twenty one by which Heirs may be charged to enter Heirs to their Predecessors not only for the Defuncts Debts but their own any Bond granted by the Appearand Heir although gratis would be valid to Apprize or Adjudge the Defuncts Estate and therefore there being many Cases in which the Appearand Heir could not probably know whether the Heretage would be Hurtful or Profitable This hath been ofttimes advised as the remeid be Sir Thomas Hope and many since That the Heir Appearand might grant a Bond and thereupon the Lands being Adjudged might take Right thereto The Pursuer answered the Defender had intrometted with the Rents of his Predicessors Land which albeit not animo adeundi yet animo Immiscendi Lucrandi which cannot be maintained by a simulat null Bond by himself to his own behove and Adjudication thereupon and if this were sustained no Person would ever after enter Heir to his Predecessor but take this indirect way to the Defraud and Vexation of Creditors and entring so to possesse would buy in other Rights and maintain his Possession as this Defender hath done and would not be oblieged or willing to restrict these Rights as he doth The Lords after long Consideration and debate in the matter found the Earls offers relevant but resolved to make and publish an Act of Sederunt against any such courses in time coming and declared that it should be gestio pro haerede to intromet upon such simulat Titles Adam Hepburn contra Hellen Hepburn Eodem die ADam Hepburn Brother to the Deceast Thomas Hepburn of Humbie Pursues Reduction and Improbation against Hellen Hepburn his Brother Daughter of a Disposition made by him to his Daughter on Death Bed The Lords granted a third Term for Production in respect of the Improbation albeit there was but a Writ or two called for Nominatim Laird of Rentoun contra Mr. Mark Ker. Ianuary 24. 1662. THE Laird of Rentoun having obtained Decreet before the Commissaries of Berwick against Mr. Mark Ker compearing for three Chalders of Victual of Teind Mr. Mark Suspends upon iniquity because he having proponed a Relevant Defense that he ought to have allowance of the Annuitie which he had payed which affected the Teinds It was repelled The Charger Answered non relevat by way of Suspension without there were a Reduction The Suspender Answered the Reason was instantly verified by inspection of the Decreet The Lords found the Reason not competent by Suspension without Reduction Mr. Iames Ramsay contra Earl of Wintoun Eodem die M r. Iames Ramsay as having Right by translation from George Seaton Assigny constitute by my Lady Semple to a Bond due by the umquhile Earl of Wintoum pursues this Earl for payment who alleadged no Process because the time of the Assignation taken by Sir George Seatoun he was one of the Defenders Tutors and so it is presumed that the Assignation was purchased by the Pupils Means and as the Tutor could have no Process thereupon against the Pupil till he had made his Tutor accompts so neither can his Assigney seeing in Person alibus all exceptions competent against the Cedent are competent against the Assigney The Lords found the Defense relevant unlesse the Pursuer would find Caution to pay what should be found due by Sir George by the Tutors Accompts as they had done before betwixt Grant and Grant January 15. 1662. Laird of Lamingtoun contra Sir Iohn Chiesly Ianuary 29. 1662. THE Laird of Lamingtoun pursues Sir Iohn Chiesly upon the late Act of Parliament 1661. betwixt Debitor and Creditor to restrict a proper Wodset granted by Lamingtoun to him of the Lands of Symontoun to his Annualrent The Defender excepted upon a Back-bond granted by Lamingtoun whereby
he expresly renunced the benefit of the Usurpers Act betwixt Debitor and Creditor and all such Acts made or to be made and oblidged himself upon Honour and Conscience not to prejudge Sir John of his bargain to which no subsequent Law could derogat unless it had been specially notwithstanding any such Paction Secondly The foresaid Act has an express exception That where such Acts made and to be made are Renounced the benefit of that Act shall not be competent to such The Pursuer Answerd to the first That Pactions or Renunciation of Parties cannot operat against a posterior Law Secondly The persuâ—t here is for restricting of a Wodset to the true Annualrent for all that was done in the Usurpers Act was to take Land in satisfaction and to delay payment but this Clause of the Act is nothing such and so is Casus Incogitatus which could not be held to be Renunced unless it had been exprest as to the exception in the Act it is not an Exception general to the whole Act but to the Antecedent part of the Act and this Clause anent Restricting of Wodsets is posterior to the Exception and not derogat thereby The Lords Repelled the Defense in respect of the Reply and found the Exception not to Derogat to the Posterior Clause concerning Wodsets Lord Burly contra Iohn Sime Ianuary 30. 1662. THE Lord Burly pursues Iohn Sime for intruding himself in a Coal-heugh wherein the Pursuers Author was infeft severally and not in the Land but only in the Coal with power to set down Pits through all the bounds of the Land The Defender alleadged absolvitor because he stood Infeft in the Lands lybelled with Parts and Pertinents and be vertue thereof was seven Years in Possession which must Defend him in Possession until his Right be reduced The Pursuer answered that the Defender could have no benefite of a possessory Judgement not being expresly Infeft with the benefite of the Coal in prejudice of the Pursuer who was expresly Infeft and Seased in the Coal and in possession of the Coals past memory The Defender answered there was no necessity of an express Infeftment of the Coal which is carried as part and pertinent as Craig observes in dieg de investituturis impropriis to have been decided betwixt the Sheriff of Air and Chalmers of Garthgirth and so being Infeft and in possession seven years he has the benefite of a possessory Judgement The Lords found the Defense Relevant but Repelled the same in respect of Interruption within seven years which was proponed Halbert Irwing contra Mckartney Eodem die HAlbert Irwing pursues Mckartney for Spuilzie of ten Oxen. The Defender alleadged Absolvitor because he Intrometted with the Oxen by Warrant from Mr. Robert Ferguson to whom the Pursuer had given a Disposition of all his moveable Goods for relief of a Cautionry for which Mr. Robert first and now this Defender is Distrest Secondly He offers him to prove voluntar Delivery of the Oxen by the Pursuer to him for the cause foresaid But because the Pursuer hath summoned several other persons as Complices which are necessary Witnesses of purpose that he might exclude them from being Witnesses he desires they may be admitted Witnesses or otherwise Discust First that if they be Assoilzied they may be Witnesses The Pursuer answered to the first non relevat a Disposition unless there had been Delivery and albeit there had been an Instrument of Delivery yet it being dispositio omnium bonorum two years before the medling could be no Warrant for summar medling without Sentence of a Judge and gave only jus ad rem But specially the medling with the Plough Goods in time of Labourage when the Pursuer put other Goods before the Defender The Lords found the first Defense Relevant founded upon the general Disposition and Instrument of Possession and that the Disposition alone though without any possession had been sufficient against the Disponer ad vitandum spolium unless the Defender had Intrometted by violence being resisted by force But they proceeded not to the second Defense which doubtless was Relevant and the desire reasonable of Discussing the remnant Defenders First that they might be Witnesses if Assoilzied Yea it seems they could not be hindred to be Witnesses used for the Defender though they might be suspect Witnesses against him as being Interest to put the Spuilzie upon him for their own relief Sir Iames Cunninghame contra Thomas Dalmahoy February 1. 1662. SIr Iames Cunninghame pursues Thomas Dalmahoy and the Tennents of Pollomount to make payment to him of the Mails and Duties of the Lands of Pollomount resting at the Death of the late Dutches of Hamiltoun because she had granted Bond of 500. pound Sterling to the Pursuer to be payed after her Death and for security thereof had assigned the Mails and Duties of her Liferent Lands of Pollomount which should happen to be due at the time of her Death It was alleadged for Thomas Dalmahoy her second Husband Absolvitor because these Mails and Duties belonged to him jure mariti neither can he be lyable for this Debt jure mariti because it was not Established against him during the Ladies Life neither could be because the term of payment was after her Death The Pursuer answered that he did not insist against Thomas Dalmahoy as Husband but as Intrometter with the Rents of Pollomount due at the Dutches Death wherewith he hath medled since which could not belong to him jure mariti being assigned before the Marriage and if they could belong to him jure mariti yet it must be with the burding of this Debt The Lords Repelled the Defense in respect of the Reply for they thought a Husband albeit he was not lyable simply for his Wifes Debt post solutum matrimonij yet that he should have no more of the Wifes Means jure mariti but what was free of Debt and so behoved to pay her Debt so far as he enjoyed of her Means Belshes contra Belshes Eodem die IN an Account and Reckoning betwixt Belshes and Belshes concerning Executry The Lords found that the prices given up by the Defunct in his Testament of his own Goods should stand and the Executor be accountable accordinglyâ— seing there was no enorm prejudice alleadged as if the Defunct had prized the Goods within a half or third of the true avail to the advantage of the Executor and prejudice of the Wife Bairns or Creditors The Lords did also allow Aliment to the Wife out of her Husbands Moveables to the next Term albeit she Liferented an Annualrent payable at the next Term. Lord Melvil contra Laird of Fairin February 4. 1662. THe Lord Melvil pursues the Laird of Fairin for Warrandice of a Disposition of certain Lands aud Teinds sold to my Lord by him with absolute Warrandice and condescends that the Teinds were affected with 13. Bolls by a Locality to the Minister in Anno 1641. The Defender alleadged Absolvitor because this Distress was
because he represents Frazer of Phillorth his Grand-father who Disponed the Lands in question to Doors and was oblieged to infeft him and did de facto resign in the Kings hands in his favour and so personally objection umquhil Phillorth Doors Author would be for ever excluded from objecting against Doors Right which flowed from him so neither can the Defender who represents him object against the Pursuer who is Successor in Door 's Rights The Defender answered that being called albeit he had no Right in his Person he might propone a Defense upon a Nullity in the Pursuers Right viz. that it is a non habente potestaâ—mâ— which is very competent here by exception This Declaâ—ator â—eing judicium petitorium wherein he may well repeat this Defense without necessiâ—y to call Doors because Doors being called in the Improbation all Infeftments in his Person are Improven for not production and so the Reason is instantly verified and albeit he were Successor to his Grand-father which he denys yet he may well alleadge that any Right flowing from his Grand-Father is personal and incompleat and can be no ground of Declarator of Property The Lords repelled the Defenses and found it not competent to the Defender to quarrel the Pursuers Authors Right unless he had a better Right Skeen contra Lumsdean Iuly 19. 1662. SKeen having Charged Alexander Lumsdean upon a Bond granted by Mr. Thomas Lumsdean as principal and the said Alexander as Cautioner he Suspends on this Reason that the cause of the Bond was Bills of Exchange drawn by Verhage upon Kezar in Camphire to be payed to Skeen or his Order which Bills Skeen ordered to be payed to Mr. Thomas Lumsdean's Wife and Mr. Thomas granted the Bond charged on for the saids Bills which Bills were protested upon Kezar's not paying of the Bills as the Protest bears To which protested Bills Mr. Thomas Lumsdean assigned the Suspender and whereupon he now alleadges that he must have allowance of the Bills protested being the cause of the Bond and therefore Skeen himself is lyable for the Bills which must compence the Charger The Pursuer answered that the Reason ought to be repelled because he offered him to prove that albeit the bills were protested for not payment by Kezar on whom they were drawn yet Mr. Thomas Lumsdean having gone back to Verhage who drew them Verhage payed Mr. Thomas and that before the Intimation of the Suspenders Assignation 2ly That Mr. Thomas Lumsdean being Factor in Camphire in his Factor Book upon the 109. page thereof there are four posts of Payment payed by the said Verhage to Mr. Thomas Lumsdean at diverse times conform to the Magistrates of Camphire their report upon the Lords Commission bearing that the said Factors Compt Book is Authentick and unvitiat and that Verhage who drew the Bills and Kezar upon whom they were drawn had both sworn before them that Verhage had payed the same to Lumsdean so the question was upon the manner of probation whereanent the Suspender alleadged 1. That Compt Books not being subscribed were not probative Writs even against the Merchant himself 2ly That at least they cannot prove against the Suspender his Assigney 3ly That they could be no better then Holograph Discharges by the Cedent which cannot instruct their own Date against the Assigney and so cannot prove the same to have been before the Intimation as for the Testimonies of Verhage and Kezar their Testimonies cannot take away Writs and yet are suspected being both Debitors for the Bills and that it was not instructed who write the Book whether Lumsdean himself or his ordinar Book Keeper The Lords found the Probation sufficient against the Assigney the Charger also proving that the Books were written by Lumsdean himself or by his â—rdinar Book-keeper and thought that the Book proved against this Assigney being Mr. Thomas own Brother and no suspition he would wrong him and there being four several Posts of payment in several Months besides the Depositions of the foresaids persons Fiddes contra Iack Iuly 19 1662. FIddes pursues Iack for payment of a Bond of 500. merks which Iack acknowledged to have received in custody form Fiddes to be keeped as his own Iack alleadged that he had but the custody and did conform to his Obligation he sent the Money to Dundee in Anno 1650. where he lost both it and much more of his own at the plunder of Dundee The Pursuer answered no way granting that his Money was lost at Dundee yet it ought not to liberat the Defender because he oft-times required and desired the Defender to pay him his Money before the plundring of Dundee and seing he did not then give it it was lost upon the Defenders hazard The Defender answered that any requisition was made was but verbal without Instrument and that it was made to the Defender being in Edinburgh after this Money and the Defenders whole means was sent to Dundee for safety and that at the time of any such desire he shew the Pursuer so and bid him send for it to Dundee when he pleased he should have it The Lords before answer having ordained Witnesses to be examined hinc inde and having advised the same found that the Pursuer did desire his Money and at that same time the Defender told him it was at Dundee and said he might have it when the pleased to send for it and Witnesses also proved that he was at Dundee and was in esteem as a man of good means then and that he was there aâ—the plunder of Dundee and ever since was in a poor miserable condition and some of them deponed that he had a considerable sum of Money far above this in question there The Question was whether this probation was sufficient to assoilzie albeit none of the Witnesses did particularly Depone that they knew the Pursuers Money to have been at Dundee and lost there Tâ—e Lords found that the probation was sufficient the Pursuer giving his oath in Supplement that it was there and lost there for they considered that at the time of the Pursuers Requisition the Witnesses proved the Defender declared it was there and that ex natura rei it was hard to prove particularly this Mony being a Fungible to have been lost there but that it behoved to be presumed so seing the man lost his whole means there and hath been poor ever since Montgomery of contra Eodem die MR. William Wallace having obtained a Disposition of the Lands of Hagburn from Thomas Hunter he gave a Back-bond oblieging him to sell the same at the best avail and as a part of the price to pay a Bond of Provision to Thoma's Sisters and Brother granted by their Father and having retained his own Sums and such as he was Cautioner for was oblieged to count for the rest and being first pursued before the Englishes and now before the Lords he was decerned to take the Lands at sixteen years purchase and a half and to count
it be by Intromission with the Mails and Duties of the Lands Appryzed conform to the Act of Parliament 1621. but no other payment or satisfaction by the Debitor is sufficient to take away an Infeftment contra singularem successurum The Lords Repelled the Defense founded upon Lovits Appryzing in respect of the Reply of satisfaction thereof and found no necessity to alleadge that the Person having Right to the Appryzing was otherways denuded the by acknowledgement of payment or satisfaction and that there needed no formâ—â— grant â—f Redemption or Renunciation Registrat conform to the Act of Parliamâ—n anent the Registration of Seasings Reversions c. wâ—ich the Lords found only to extend to Wodsets properly so called and not to Appryâ—zings neither yet to an Infeftment for Relief whereunto the Rents were not to be only for the Annualrent of the sum but to satisfie the Principal and therefore seing the Lords found that the only Right was in the Defenders Grand-father and that he Disponed to the Defender that he could be in no better case then his Grand-father as to the Disposition granted by his Grand-father without a Cause Onerous being after the Disposition of the same Lands by that same Grand-father to the Pursuers Author but found it not necessar to determine the Case of lucrative Successor as it was here stated to make the Successor lyable to all his Predecessors Debts Iames Birsbine contra Iohn Monteith Iuly 24. 1662. JAmes Birsbine pursues Iohn Monteith as Cautioner for Iohn Birsbine who was Executor to the Pursuers Father for payment of the Pursuers Legacy The Defender alleadged no Processe because the Executor himself is not Discussed and the Cautioner is only lyable subsidiary The Pursuer Replyed there is a Decreet obtained against the Executor produced and there was no further Discussing requisite because he is broken and the Pursuer is content to assign the Debt to the Cautioner The Defender answered non Relevat for a Decreet is no sufficient Discussing but there must be Registrat Horning at least albeit the Executor had neither Lands nor Moveables to Poind or Apprise The Lords sustained the Defense and found the Reply not Relevant till the Registrate Horning were produced Alexander Shed contra Robert Gordon and David Kill Eodem die ALexander Shed pursues Robert Gordon Pupil as lawfully Charged to enter Heir to his Father to pay a Debt of his Fathers compears David Kill the Pupils Uncle who was Tutor nominat to him but refused to accept and therefore shunned to propone any Defense in the Pupils own nameâ— least it should be an acceptance or gestio and therefore produced a Bond of the Defuncts and as Creditor alleadged that he would not suffer his Debitors Estate to be affected in his prejudice and offered him to prove that the Debt pursued on was satisfied The Question was whether he had Interest as Creditor to propone this Defense The Lords having considered the Case amongst themselves found that where Creditors in this manner compeared it is not cnmpetent to allow their Defense because it may delay the other Creditors pursuing so that a third Creditor may be preferred in Diligence and therefore they Repelled the Defense hoc loco but declared that it should be receivable against the Pursuer whenever he should pursue for affecting any of the Defuncts Means or Estate in the same case as now Mr. Patrick Weyms contra Mr. Iames Cunninghame Eodem die MR. Patrick Weyms having an Order of Parliament for a Terms vacant Stipend of the Paroch of Leswade Mr. Iames Cunninghame alleadged that Terms Stipend was not vacand but belonged to him as incumbent viz. Whitsonday 1659. because he was admitted before Michalmess 1659 and shortly after Whitsonday and so the legal Terms of Stipends not being divisable at two Terms but at Michalmess joyntly he being incumbent before Michalmess hath the whole year The Lords Repelled this alleadgence but preferred Weyms and found that Ministers had Right to their Stipend Termly and if he entered before Whitsonday he had Right to the whole year and if after VVhitsonday and before Michalmess but to the half Barbara Naesmith contra Iohn Iaffray Iuly 25. 1662. BArbara Naesmith pursues Iohn Iaffray her Son as Heir and Executor to his Father for payment to her of her umquhil Husbands hail Means and Eschaeat by vertue of a Missive Letter written by the Defunct her Sponse bearing that if he happen to die before his return that his VVife should do with what he had as she pleased that he thought it too little for her but he desired her to Discharge a 1000. Pounds or a 1000. Merks to his Brother Alexander and 500. Merks to his Sister Magdalen if she follow her advice The Lords having formerly found that this Letter was donatio mortis causa or a Legacy and so could only affect Deads part It was now further alleadged that by the pursuers Contract of Marriage he was oblieged to imploy 6000. merks on Land or Annualrent to him and her and the longest liver of them two and to the Bairns to be gotten betwixt them which failzing his Heirs This Obliegement to imploy being a Debt the Moveables must be lyable for it primo loco and the Pursuer can only have Deads part of the remainder of free Goods The Pursuer answered that this Destination being on Heretable Clauses cannot affect the Moveables 2ly The Bairns cannot have Right thereto till they be Heirs and so they will be both Debitors and Creditors and the Obligation will be taken away by Confusion The Lords found this Defense Relevant notwithstanding of the Answer and that albeit the Clause was Heretable quoad creditorem yet it was Moveable quoad debitorem and so behoved to be performed out of the Defuncts Moveables and that the entring thereto would not take away the Obliegement by Confusionâ— more then one paying a moveable Debt wherein he is both Debitor and Creditor yet he will have action of Relief against the Executors out of the Moveables It was further alleadged that in the said Missive there are two particular Legacies left to the Defuncts Brother and Sisters which must abate the general Legacy The Pursuer answered that both Legacies were only left thus I wish c. which cannot be obligator nor constitute an effectual Legacy but is only a desire or recommendation left in the Pursuers option and for Magdalens Legacy it was conditional the following the Pursuers advice which she did not but left her contrair her will The Defenders answered that verba optativa were sufficient in Legacies at least were sufficient to make a fidi commissari Legacy because all fidi commissis either for restoring the Inheritance or for restoring Legacies in the Civil Law were in such Terms and albeit such words would not be sufficient intor vivos yet favore ultimo voluntatis where the Defuncts will howsoever manifested is the Rule and so is most extended such words are sufficient as to the condition in Magdalens Legacy
it cannot be understood of being under the Pursuers command all her life and so can only be meaned if Magdalen miscarry contrair to the Pursuers advice in some considerable matter of her carriage and however it is not a suspensitive condition hindring the payment of the Legacy but oblieging the Legatar thereafter The Lords found the Legacies constitute and in terms for said valid and as for Magdalens Legacy declared that in case Magdalen miscarried and took not the Pursuers Advice that she should be lyable to refound the Legacy to the Pursuer but would not put her to find Caution for that effect the condition being so general Katharin Kinross contra the Laird of Hunthill THe Laird of Hunthill being oblieged by Bond to pay a sum to umquhil Mr. Beverly and the said Katharin his Spouse the longest liver of them two in Conjunct-fee and the Heirs betwixt them which failzing his Heirs or any person he should design whereupon they were infeft in an Annualrent The said Katharin having charged for payment of the sum Hunthill suspended alleadging that she was but Liferenter and he could never be in tuto till the Feear were called The Lords formerly found the Letters orderly proceeded for the Annualrent but superceeded to give answer for the Stock till some to represent Beverly the Feear were called who now being called and not compearing he Debitor alleadged he could not be lyable to give up the Stock to the Charger being only Liferenter neither would her Discharge or Renunciation of the Wodset liberat him and his Estate but only a Renunciation of the Heir neither did the Charge at the Liferenters Instance take away the Annualrent and make the principal sum moveable unless it had been at the Feears Instance The Charger answered that she being Conjunct-feear was not a naked Liferenter albeit it resolved in a Liferent and therefore she craved that it should be declared by the Lords that she had power to uplift the Stock and to reimploy it as formerly and that her Discharge and Renunciation should be declared to be sufficient to liberat the Debitor and his Lands which being so found by the Lords The Debitor's appearing Heir being called would be an irreduceable and sufficient ground of Liberation The Lords declared as aforesaid but before Extract ordained the Conjunct-feear to give Bond for Reimployment of the sum to her self in Liferent and to Beverly's Heirs in Fee which Bond they ornained to be presently Registrat and kept by the Clerk in respect none appeared for the Heir Lady Milntoun contra Laird of Milntoun Iuly 26. 1662. LAdy Milntoun pursues probation of the Tenor of a Bond of Interdiction granted by her Husband young Calderwood Interdicting himself to her It was alleadged no Process because there was no sufficient Adminicles in Writ produced there being no Writ relative to the Interdiction Subscribed by the Party but only the Extract of Letters of Inhibition The Lords sustained this as a sufficient Adminicle in respect the question was not about a Writ that use to be retired such as Bonds In this Case also the Lords examined some Witnesses ex officio before Litiscontestation being old and valitudinary Margaret Robertson contra William Mcintosh Eodem die MArgaret Robertson pursues an Ejection against William Mcintosh who alleadged absolvitor because he offered him to prove that he had warned the Defenders umquhile Husband and that he dying shortly thereafter he inquired of his Wife if she would continue in the Possession and she declared she would not but willingly removed It was Replyed Relevat scripto vel juramento but witnesses cannot be received to prove willingness of Removing being mentis The Lords considering that the Defender alleadged no Tack nor Title in Writ but meer Possession were inclinable to sustain the Defense probable pro ut de jure but withall considering the Parties were Highlanders and had great advantage whoever had the benefite of probation therefore they ordained the Pursuer to condescend what Deeds of violence was done in ejecting her and both parties to conscend what persons were present at the Pursuers outgoing and the Defenders incoming being resolved to examine all these before answer so that there might be no advantage in probation to either party Sir John Aiton contra Adam Wat. Eodem die ADam Wat being first Infeft in an Annualrent out of Whitlands Estate Compryzed for some of the bygone Annualrents Sir Iohn Aiton being infeft after him in an Annualrent of the same Lands alleadges that Adam hinders him to uplift the Duties or poynd the Ground for his Annualrent and yet lets them ly in the common Debtor or Tennents hands until his Appryzing expire and therefore alleadges that Adam Wat ought either to Intromit and do exact Diligence and impute the same in his Compryzing or suffer Sir Iohn to do Diligence or at least that both may do Diligence effeiring to their Sums The Lords found that Adam Wat ought to be lyable for Diligence in time coming in uplifting the Rents to satisfie his Appryzing and as to the Annualrent found that after 40 days after each Term in which Adam as the first Annualrenter might poynd the Ground it should be leisom for Sir Iohn as the second Annualrenter to poynd the same without respect to Adam Wats prior Infeftment if he did not Diligence thereon within 40 days after ilk Term. Alexander Hamiltoun contra Thomas Harper Iuly 29. 1662. ALexander Hamiltoun pursues a Removing against Thomas Harper who alleadged Absolvitor because the Pursuer invaded and beat the Defender in the Session-house during the Dependence of this Cause and therefore by the Act of Parliament 1584. cap. 219. renewed 1592. cap. 173. The Pursuer cadit causa and the Defender must be Assoilzied The Lords having considered the saids Acts of Parliament and finding thereby that the Invasion must be Cognosced in a Criminal Process competent to the Justice and must be found summarly by an Inquest The Question was whether beating without effusion of Blood was such a Criminal Fact because it seems to be but a Ryot and next whether the Lords would take probation of it themselves or if it behoved to be Recognosced by the Justices The Lords found the Defense Relevant For the Act of Parliament anent violence in the Kings presence or in the Session House when the Session is sitting make such deads to incur death and therefore whether they would assign a Term to the Defender to prove that in the mean time he might proceed Criminally before the Iustice and instruct the Defense by the Sentence of the Iustice or whether they would receive the Probation themselves they resolved to hear the Pâ—rties upon it Laird Balnagoun contra Iuly 30. 1662. THe Laird of Balnaggoun having obtained a Gift of ultmus haeres of Thomas from the Exchequer in Anno 1661. and being thereupon Infeft pursues Removing against Rorie The Defender alleadged absolvitor because the Defender stands Infeft and by vertue of his
Party willed not nor consented not to the Right and if by such Interruptions Parties got wrong it was their own fault who did not either declare their Right or insist in a molestation debito tempore or use mutual Interruptions but here it was considered that Possession before the year 1610. would be equivalent to Immemorial Possession albeit the Witnesses were not positive upon 20. Years Possession before in respect the Years were 50. Years since Children of Wolmet contra Dowglas and Cuningham November 20. 1662. IN a Persuit at the instance of the Children of Wolmet for the Profit of the Coal of Wolmet intrometted with by the said Iean Dowglas Lady Wolmet in her Viduity by vertue of a Tack of the Coal granted by Umqhile Wolmet to his Children for their Portions it was alleadged for the Defender First absolvitor because the said Iean had right to the said Profit of the said Coal ever since her Husbands Death by vertue of the Wodset of the Lands and Coals of Wolmet granted by Umquhile Patrick Edmonstcun of Wolmet to Iames Loch wherein there is a Back-tack of the Land and Coal set to the said Umquhile Wolmet and the said Iean his Spouse for the Annualrent of the Money It was replyed for the Pursuer that the foresaid Back-tack was taken by Wolmet stante matrimonio and so was donatio inter uirum uxorem null in it self nisi morte confirmetur and was confirmed by Wolmets Death but Revocked by the Pursuers Tack granted to his Children after the said Back-tack It was answered for the Pursuers that the reply ought to be repelled because the Back-tack was no Donation but a permutation in so far as the Lady by her Contract of Marriage was Infeft in the half of the Lands of Wolmet which Infeftment she renounced in favours of Iames Loch at the taking of the Wodset and in lieu thereof she got this Back-tack which therefore can be no Donation which must be graâ—uâ—tus without a cause onerous It was replyed by the Pursuers that the duply is not relevant for albeit it be not a pure Donation yet quoad excessum the superplus of the benefit of the Back-tack above the benefit of the Contract of Marriage is gratitude and a Donation and the reason of the Law against Donations betwixt Man and Wife being mutuo amore se spolient it holds in it and it would be easie to allude the intent of that good Law if Donations contrived under the way of permutation without any real equalitie were allowable It was answered for the Defender that the duply stands relevant and the superplus of a permutation cannot be called a Donation more then the benefit of an advantagious Vendition it is true that if the Donation of the Back-tack had been ex intervallo after the Ladies Renounciation it would have been vincus Contractus but two distinct Donations or if the matter exchanged had been aliquid ejusdem specei as an Annualrent of 500 merk with an Annualrent of a 1000 lib. the superplus would have been a Donation or if the Lady had received a notable excess above the half yea above the third of what she quat it might have been revocable by her Husband she being reponed to her first Condition by her Contract of Marriage but here there is no such exorbitant excess she having quat a certain Land Rent for the profit of a Coal which is most uncertain for the hail Land Rent would not pay the Back-tack and it is now Wodset and likewise she is personally lyable for the Back-tack Dutie The Lords repelled the Defense and Duply in respect of the Reply and Triply and found the Excess so considerable in this case that it was as a Donation and was revocked by the Childrens Tack but found that before the Defender made payment of what should be found due by this accompt she should be reponed and put in statu quo prius by her Contract of Marriage It was further alleadged for the Defender absolvitor because that albeit her Right by the Back-tack were revocked by the Childrens Tack yet she is bona fide possessor fecit fructus consumptos suos according to the Law of this Kingdom and of most of other Nations necessarily introduced for the good and quiet of the People because as to and profits they spend as they have and therefore what they spend bona fide by a colourable Title they are secured in that albeit their Title be taken away yet they shall not be called in question for what they have injoyed bona fide before Sentence or Citation It was answered for the Pursuers that the Defense was not relevant in that case where the Question is not of industrial fruit but of natural fruit such as Coal Secondly it is not relevant unless it were cum titulo not ipso jure null but here the Defenders Title being a Donation betwixt Man and Wife is by the Civil Law which herein we follow null in se nisi morte confirmetur Thirdly there must be bona fides which is not here because it is instructed by a minute of a Contract produced within five moneths before the Childrens Tack that the Lady consented to the providing of the Children by the profit of the Coal and she cannot be presumed ignorant of so Domestick an affair in favour of her own Children done by her Husband and she hath given up an Article in her accompt of the expense of Registrating the Childrens Tack by her self and so she must be presumed to have possessed as protutrix for her Children and not to Defraud or Exclude them It was answered for the Defender that the defense stands yet relevant and the Law makes no difference betwixt Industrial and Natural Fruits he who possesses Lands bona fide is no more comptable for the Grass that growes of it self nor for the Corn that he labours for 4. And Coal is an industrial Fruit having as much pains and expense as Corns and other industrial Fruit and more uncertainty as to the Title albeit be valid yet sufficit coloratus velâ—putativus titulus and albeit in the antient Roman Law such Donations were null in se nisi confirmentur morte yet by the subsequent course of the Law per oraâ—ionem Antonij they are declared valid in themselves unless they be revocked and therefore are not null but Anullantur medio facto and there are many nullities which may consist with a colourable Title ad hunc affectum lucrari Fructus consumptus as if the nulitie be not ex defectu substantialium but by defect of some solemnity as the not Registration of a Seasine will not make it so null but that possessor bona fide thereby will imploy the Fruits but if it want tradition of the symble it will be null in se but here such Donations have all there essentials but they are only anullable by a subsequent fact and as to the Evidence that the Lady was in mala fide they
had died Infeft in the Annualrent if there had been Bairns of the Marriage they Male and Female joyntly and equally behoved to be Served specially as Heirs of Provision to their Father and so Infeft and failzing Bairns Thomas and Margaret behoved also to be so served and Infeft for albeit there needs no general Service where Persons are nominatim substitute in a personal Right requiring no Infeftment yet where there is Infeftment there must be a special Service And therefore found the Father Feear might uplift the Mony or might change the Destination thereof as he pleased and albeit Thomas and Margaret were Infeft nominatim yet they found the Seasine was without Warrand bearing only to Infeft them in case of failzie of Heirs of the Marriage and the Infeftment could only be granted to the Conjunct-feears Iohn Scot contra Montgomery Eodem die JOhn Scot as Assigney to certain Bonds granted by Montgomery to Andrew Robertson charges Montgomery who Suspends upon this Reason that he instantly instructs by a Back-bond that the Bonds is for the price of certain Lands and by the Back-bond it is provided that these Sums should not be payed till the Writs of the Lands were delivered and payment made of some Duties thereof The Lords found the Back-bond being before the Assingation relevant against the Assigney albeit the Bonds were simple bearing borrowed Money Greenlaw contra 〈…〉 Ianuary 15. 1663. GReenlaw being pursued by 〈…〉 for Spuilzie of two Mares in May 1654. alleadged Absolvitor because he was then in Arms for the King and took these Mares for the Service and had warrand from his Officers which he offered him to prove by his Pass and Capitulation produced expressly including him with his Officers who Capitulate The Pursuer answered the Mares were great with Foal and altogether unfit for the Service and if they were specially commanded to be taken it might be instructed by Writ The Lords considering this Capitulation being about that same time found that albeit there had been no Order yet the Defender being then in Arms acting modo militari the Act of Indemnity freed him and would not give occasion to such Process and therefore Assoilzied Tennents of Kilchattan contra Lady Kilchattan Major Campbel and Baillie Hamilton Ianuary 16. 1663. OLd Kilchattan in his Sons Contract of Marriage Dispons the Lands of Kilchattan to his Son young Kilchattan and his Lady in Conjunct-fee whereupon there was Infeftment taken in favours of the Husband and Wife to be holden from the Disponer and of the King but the same was not confirmed till the year 1662. At which time Major Campbel procures a Confirmation of the Conjunct-Infeftment and Seasine thereon which Confirmation hath a Clause insert bearing the same to be only in so far as may confirm and establish the Right of an Annualrent granted by young Kilchattan to the Major and thereafter the Lady Confirms the Conjunct-Infeftment simply In Anno 1654. young Kilchattan Infefts Major Campbel in an Annulrent out of the Lands thereafter Heugh Hamilton Appryzed from young Kilchattan and was Infeft upon this Appryzing about that time It was alleadged by the Lady that she ought to be pre-ferred because she being joyned with her Husband in the Conjunct-Fee and thereupon Infeft it is sufficient to give her the Right of Liferent which is but a personal servitude It was answered first That Major Campbel having procured the first Confirmation which is expresly limit unto his Annualrent must be preferred to the Lady and that such limitations might lawfully be because it being free for the Superiour to Confirm or not or to Confirm a part and not the rest he might Confirm it to what effect he pleased and his Confirmation being extended no further the Lady cannot crave preference because she is now only Infeft in the Lands in question in Warrandice that her principal Lands shall be worth so much and it is not yet declared in what they are defective The Lords in respect the Ladies Right was not Confirmed preferred the Major as to his Annualrents It was alleadged for Heugh Hamiltoun that he must be preferred to the Annualrenter because he being publickly Infeft upon his Apprysing before the Infeftment of Annualrent at least before it was cled with Possession whereby it became a valid Right the King's Charter upon the Apprysing is virtually and equivalently a Confirmation of Kilchattans Infeftment especially in favours of a Creditor who could not perfectly know his Debitors condition which if he had known and given in expresly a Confirmation to the King it would have been accepted seeing the King respects none and therefore the King 's granting of a Charter upon the Apprysing must be interpret equivalent The Lords found that the Charter upon the Apprysing was not equivalent to a Confirmation It was further alleadged for Heugh Hamiltoun that the Confirmation obtained by Major Campbel behoved to accresce to him who had the first compleat Right by publick Infeftment upon the Apprysing and albeit that base Infeftment upon the Annualrent granted by Kilchattan to Major Campbel was prior yet it was null till it was cled with Possession and therefore if it was not cled with Possession before Heugh Hamiltouns Infeftment the Confirmation must accresce to Heugh Hamiltouns Infeftment The Lords found that the base Infeftment was not null for want of Possession albeit it might be excluded by a publick Infeftment before Possession but found that Heugh Hamiltouns publick Infeftment was not compleat in it self because it put Heugh Hamiltoun only in the place of young Kilchattan who had a null Right till Confirmation Which Confirmation they found did accresce to the base Infeftment being cled with Possession at any time before the Confirmation for at that time it became a compleat Right at which time the Appryzing and Infeftment was no compleat Right and therefore the Confirmation albeit it had not had this restriction accresced to the base Infeftment as being the first compleat Right in suo genere Earl of Roxburgh contra a Minister Eodem Die IN a review of a Decreet at the Instance of a Minister against the Earl of Roxburgh the point in question was whether or no the Judges for the time or now the Lords of Session were competent to discuss this Nullity of a Decreet of Locality by the Commission for Plantation in that it called the Earls Lands expresly designed to be his Lands and he was not called The Lords found that albeit they would not decide upon the Nullities of the Decreets of the Commission competent by way of Reduction which behoved to be before the Commission it self yet this Nullity being palpable and competent by Exception or Suspension that they might thereupon Suspend simpliciter the Decreet of the Commission Earl of Errol contra Parochioners of Ury Eodem die THe Earl of Roxburgh pursues the Heretors for the Teind from 1648. till 1662. as he who had Right during that tyme by the Act of Parliament 1649. Establishing the
Infeftment was only base not cled with Possession and that the Defenders Title was by another Party Possessing and publictly Infeft before his Fathers Death Which the Lords found Relevant Iames Allan contra Iames Paterson Iune 17. 1663. JAmes Allan charges Iames Paterson as Cautioner in an Indenter for a Prentise set to the Charger for five years and insists upon that Article of paying two dayes wadges for ilk dayes absence and subsumes that the Prentise left his Service after the first two years and was absent three years The said Iames Paterson Suspends on this reason that it must be presumed Collusion betwixt the Charger and his Prentise that having gotten the Prentise Fee and not learned him the Trade he had suffered him to escape never making intimation to the Suspender that he might have brought him back to his Service while now that he is out of the Countrey and not knowing where The Charger answered that there was nothing to obliege him to make such intimation neither could a sufficient presumption of Collusion be sustained The Lords found the Letters orderly proceeded either while the Cautioner caused the Prentise Re-enter and serve out his time or otherways payed fifty pound for damnage and interest to which they modified the Charge Margaret Fleming contra Iames Gilleis Iune 18. 1663. MArgaret Fleming being Infeft in an Annualrent of 700. merks out of Houses in Edinburgh in Liferent with absolute warrandice from all dangers perils and inconveniencies whatsomever pursues Declarator against the said Iames Gilleis as Heretor for declaring that her Annualrent should be free of all publick burden since the rescinding of the Act of Parliament 1646. whereby Liferenters were ordained to bear proportional part for their Annualrents with the Heretors The Defender answered the Libel was not Relevant for albeit the Act of Parliament was rescinded the justice and equity thereof remained that whatever burden were laid upon Land shouldly proportionably upon every part therof and every profit forth of it Which Defense the Lords found Relevant and Assoilzied Francis Hamiltoun contra Mitchel and Keith Eodem die SIr Alexander Keith of Ludquharn being oblieged by Bond to Robert Mitchel in Leith for the price of certain Bolls of Victual was arrested in Leith till he found Francis Hamiltoun Cautioner as Law will and both being pursued on the Act raised Advocation on this reason that the Baillies of Leith had unjustly forced him to find Caution as Law will he not being dwelling in Leith nor Leith not being a Burgh Royal but a Burgh of Barony It was answered that the priviledge and custome of the Town of Edinburgh was to arrest within Leith and all other priviledges and pendicles thereof The Lords found that it behoved to be condescended in what place of Leith Ludquharn was arrested for the Peer of Leith was a part of the Burgh Royal of Edinburgh and was served by a Bailie of Edinburgh called the Water Baillie and if he was arrested there it was valid but the rest of Leith is but a Burgh of Barony and in that part thereof the Baillie is called Baron Baillie it were not valid Euphan Hay contra Elizabeth Carstorphine June 19. 1663. THe said Euphan having obtained Decreet against the said Elizabeth for certain Furnitur to her House She suspended on this reason that her Husband was not called The Charger offered to prove in â—ortification of her Decreet that her Husband was 20. years out of the Countrey and she repute as Widow Which the Lords found Relevant George Reid contra Thomas Harper Eodem die THese Parties competing in a double Poinding George Reid craved preference because he was assigned to the Mails and Duties by Thomas Mudie Heretor of the Land Thomas Harper alleadged that he had arrested the Duties upon a Debt owing to him by William Mudy Father to the said Thomas and any Right Thomas had was fraudulent and null by exception by the express words of the Act of Parliament 1621. being betwixt Father and Son without any onerous Cause and he ought not to be put to Reduce in re minima his Debt being within a 100. pound The Lords found he behoved to Reduce conform to their constant Custom in Heretable Rights Ferguson contra Ferguson June 23. 1663. UMquhil Ferguson in Restalrig having a Tack set to him by the Lord Balmerino for certain years his eldest Brother Son as heir of Conquest and his youngest Brother Son as heir of Line competed for the Mails and Duties of the Lands The Lords found the Tack to belong to the Heir of Line albeit it was Conquest by the Defender Mcdowgal contra Laird Glentorchy June 24. 1663. Mcneil having Disponed certain Lands to Mcdowgal wherein he was Heir apparent to his Goodsyrs Brother oblieged himself to Infeft himself as heir therein and to Infeft Mcdowgal at least to renunce to be heir to the Effect Mcdowgal might obtain the Lands adjudged whereupon Mcdowgal having raised a Charge to enter heir Mcneil renunces and thereupon Mcdowgal craves the Land to be Adjudged and Glentorchy Decerned to receive and Infeft him Glentorchy alleadged that he could not receive him because he had right to the Property himself unless the Pursuer condescend and instruct his authors in whose place he craves to be Entered had Right The Pursuer answered that lie needed to instruct no Right nor was he oblieged to Dispute the Superiours Right but craved the ordinar course to be Entered suo periculo with reservation of every mans Right and the Superiours own Right as is ordinary in Appryzings and Adjudications The Defender alleadged that albeit that was sustained in Appryzings where the Superiour gets a years Rent and though it might be allowed in ordinar Adjudications proceeding upon a liquid Debt favore creditorum yet not in such a Case as this where the Vassals apparent Heir Dispones and oblieges himself to Renunce of purpose to Charge his Superiour The Lords found no Processe till the Pursuer instructed his Authors Titles But an Infeftment being produced he was not put to Dispute the validity thereof in this instance Menzeis contra Laird Glenurchy Eodem die THe Daughters of Mr. William Menzeis as Executrix to him pursues Glenurchy for payment of a Bond due to their Father he alleadged minority and Lesion and that he had Reduction thereupon depending The Pursuers answered no Lesion because this Bond being granted to their Father for his Stipend by the Defender who was Heretor of the Land he was not leased because as Heretor he was lyable for the Stipend The Defender answered that his being Heretor could not Obliege him because his Grand-father was then living whose Liferent was reserved in his Disposition who and the intrometters could only be lyable Stipends not being debita fundi and it were of very evil consequence if the Heretor were lyable during the whole life of a Liferent The Lords found that there being a Liferenter the Heretor was not lyable and therefore sustained
which the Lords found Relevant and Repelled the Defense but superceeded Execution until some time that the Defender might use any means he could for making this Sum to affect the Land Farquherson contra Gardiner Eodem die MR. Iames Farquherson having obtained a Decreet of Spuilzie against Iohn Gairdiner and others Gairdiner Suspends on this Reason that he medled with the Goods in question as a Souldier in a Party in Arms being then in the Regiment of the Master of Forbes under the Command of the Earl of Midletoun and therefore is freed by the Act of Indemnity The Charger answered that he oppons the Act Indemnifying only these who Acted by Warrand of any Committee of Estates or Commander or other Authority so that it is not Relevant unless the Suspender alleadge that as he was a Souldier in Arms so he had such Warrand and did apply the particulars to the publick use under which he served And it is offered to be proven that he took the Goods lybelled to his own House and made use of them to his privat use The Suspenders answered that this Reason stands Relevant as proponed because it is clear by the Act of Indemnity that all things done under any pretended Authority or Command are Indemnified and therefore there is a special Exception of privat Thefts and Robberies which confirms the Rule as to publick Pilledging in any War and if there were a necessity to every person to instruct the Command or Warrand of his Officer which was not accustomed to be in Writ the whole Act would be elusory so that it is sufficient that the thing was done in the way of a publick War otherwise all that was taken or converted to privat use of those that were either with Montrose or Glencairn might ly open to Pursuits notwithstanding of the Act of Indemnity The Lords after serious Consideration of this as a leading Case found the Reason of Suspension Relevant that the Defender needed not to prove that he had Warrant but that the Warrant was presumed if he proved he Acted with a Party in War against which they would admit no contrary Probation unless it were offered to be proven by the Defenders own Oath that he did without any Warrant converted the Goods to his own privat use Margaret Inglis contra Thomas Inglis Eodem die MArgaret Inglis having obtained a Decreet before the Commissars of Edinburgh against Thomas Inglis for giving her Security of 1000. pounds in Legacy left in her Fathers Testament and for payment of the Annualrent of the said Legacy Thomas Suspends on this Reason that the Legacy being left to be payed the one half at the Chargers marriage and the other half at the Death of the Defuncts Wife buire no Annualrent as neither doth any other Legacy much less this being in diem incertum which is equivalent to a Conditional Legacy For if the Defuncts Wife had Survived the Legatar or if she never Marry nothing will ever be due The Charger answered that this Legacy was in effect alimentar though not expresly left eo nomine and therefore ought to be profitable and that the Lords had been accustomed to give Annualrent in such cases as in the case of the Lady Otter and her Daughters The Suspender answered that the case was far different these being lawful Daughters and their Provisions being in lieu of an Estate of Land and this Charger being but a Bastard and come to that age that she may serve for her Maintainance The Lords considering that the one half of the Sum was payable at the time of the Chargers Marriage being a Condition in her own power and that it was not favourable to put her to a necessity of Marry Therefore they sustained Annualrents for that half but not for the other Brown contra Lawson Iuly 6. 1664. ALexander Brown having obtained a Decreet against William Lawson as vitious Intrometter with the Goods of umquhil William Lawson of New-milns he Suspends and alleadges the Decreet was unjustly given because it beares that he excepted upon a Disposition made by the Defunct for an Onerous Cause and an Instrument of Possession of the Goods before his Death The Charger answered that the Decreet did bear that the Suspender did judicially acknowledge that there was no true Delivery of the Goods The Lords found this collourable Title sufficient to purge the passive Title of vitious Intromission providing the Defender Confirmed within four moneths for they thought the Defuncts Disposition in articulo mortis was rather as a Testament or Legacy in satisfaction of the defenders Debt then as actus inter vivos Iohn Miln contra Hoom. Iuly 7. 1664. JOhn Miln Mason having Charged Sir James Home of Eccles for payment of a Sum of Money due by Bond he Suspended and alleadged that he had the benefit of the Act betwixt Debitor and Creditor as to personal Execution seing he had payed a years Annualrent and had consigned a Bond of Corroboration joyning the rest of the Annualrents to the principal The Charger answered the Suspender could not crave the benefit of the Act because he had not found caution for the principal and annual conform to the said Act for his naked Bond of Corroboration without Caution could not be interpret Security The Lords found the Suspender behoved to give security either by Caution or Infeftment Ogilbie and Grant contra Ker. Eodem die THere being a Charge in the Name of Iames Ogilbie and William Grant contra Mr. Andrew Ker Minister on this ground that by a minut of Contract of Alienation Ogilbie had sold to Ker certain Lands and Ker was expresly Bound by the minut to pay this Grant and others in part of the price of the Land certain Debts due by Ogilbie to them Ker Suspends upon this Reason that he had satisfied Ogilbie and obtained his Discharge Grant answered that by the foresaid Clause contained in the Minut he had acquired right to the Sum in satisfaction of his Debt which Ogilbie his Debitor could not take away without his consent especially seing the Minut took effect and the Suspender by his Missive Letters after the Date of this Discharge Writ to the Laird of Pitmeddin who was Cautioner to Grant that he would satisfie the Debt The Suspender answered that the Clause in favour of Grant who was no Contracter could not give him a Right First Because it was never a delivered Evident to Grant 2ly Because it was but a Mandat whereby Ogilbie the Contracter did order a part of the Sum to be payed to Grant which Ogilbie might recal at his pleasure as he might have annulled the Bargain and destroyed the Writ especially seing nothing had yet followed And as for the Letters they were not Written to Grant but to a third Party The Lords found that seing the Bargain took Effect the Clause in Grants favour was not a simple Mandat but a Delegation whereby Ogilbie constitute Ker his Debitor to be Debitor to Grant his Creditor which needed no
answered many exceptions though they bear not so expresly yet they are rather Declaratory of a Right then in being then statutory introducing a new Right The Lords found Singular Successors free and reduced the Decreet pro tanto Earl of Lauderdail contra Wolmet Eodem die THe Earl of Lauderdail pursues a Spuilzie of the Teynds of Wolmet against Major Biggar who alleadged absolvitor because the Lands of Wolmet were Valued and approven The Pursuer replyed that the said Decreet of Valuation was improven by a Decreet of Certification obtained there against at the instance of Swinton having Right to these Teynds for the time by a Gift from the Usurper The Defender duplyed that no respect ought to be had to the said Certification First because this Pursuer derives no Right from Swintoun being only restored to his own Right and Swintouns Right from the Usurper found null so that as the Pursuer would not be burdened with any Deed of Swintouns to his prejudice neither can he have the benefit of any Deed of Swintouns to his advantage 2dly The said Certification was most unwarrantable in so far as the Decreet of Valuation being in the Register of the Valuation of Teynds the Defender was not oblidged to produce it but the Pursuer ought to have Extracted it himself 3dly All Parties having interest were not called to the said Certification viz. Mr. Mark Ker the Wodsetter by a publick Infeftment in whose Right Major Biggar now Succeeds And last the Defender alleadged that he had a Reduction of the Certification upon Minority and Lesion and the unwarrantable Extracting of it The Pursuer answered to the first that seing Swintoun did use the Pursuers Right all reall advantages which were not Personal but consequent upon the Real Right and which belonged not to Swintoun personaliter but as prerended proprietar do follow the Real Right it self and Accresce to the true Proprietar as if he had acquired a Servitude or had reduced the Vassalls Right â—b non solutum canonem To the Second oppones the Certification wherein compearance was made for Wolmet and three Terms taken to produce and no such Defense was alleadged as that the Valuation was in a publick Register To the Third the Pursuer needed not know the Wodsetter because it was an Improper Wodset the Heretor Possessing by his Back-bond as Heretable Possessor seing the Decreet of Valuation was at the Heretors instance it was sufficient to Reduce it against his Heir for it would not have been necessar to have called the Wodsetter to obtain the Decreet of Valuation but the then Heretable Possessor so neither is it necessar to call the Wodsetter to the Reducing or improving thereof To the last no such Reduction seen nor ready neither the Production satisfied The Lords Repelled the Defense and duplyes in respect of the Certification which they found to accresce to the Pursuer but prejudice to the Defender to insist in his Reduction as accords and declared that if the Defender used diligence in the Reduction they would take it to consideration at the conclusion of the cause Balmirrino contra Sir William Dicks Creditors Iuly 14. 1664. JAmes Gilmor for the use of the Lord Balmirrino being Infeft in the Lands of Northberwick upon a Right from Sir Iohn Smith who had Right from Sir William Dick pursues the Tennents for Mails and Duties Compearance is made for Sir Williams other Creditors Wodsetters and Appryzers who alleadged absolvitor because the Pursuers Right is Extinct in so far as Balmirrino being Debitor to Sir William Dick and charged by him had acquired this Right from Sir Iohn Smith to compence Sir William and did actually compence him by alleadging the same reason of Compensation producing the Disposition then blank in the Assigneys name whereupon the Letters were Suspended Simpliciter aud my Lord assoilzied and the Disposition given up to Mr. Alexander Dick which is instructed by the Testimony of William Douny Clerk at that time Balmirrino answered First That William Dounys Testimony could not make up a Minute of Decreet where there were no Process nor Adminicle to be seen 2dly Though the minute of the Decreet were lying before the Lords not being Extracted the Lord Balmirrino might passe from his Reason of Compensation and take up his Disposition which is always permitted before Litiscontestation or Decreet and Litiscontestation is never accounted untill the Act be Extracted So that there being no Act of Litiscontestation Extracted in the said Process but only an alleadged minute of a Decreet without an Act neither Partie might resile 3dly Though the Suspender might not resile Simpliciter yet it is still competent to him to propone a several reason of Suspension before Extract being instantly verified and now he propones this Reason that the Debt awand by him to Sir William Dick is a publick Debt and the Parliament has Suspended all execution thereupon till the next Parliament which by consequence liberats him from making use of or instructing his Reason of Compensation The Creditors answered it was most ordinar for the Lords to make up Minuts by the Testimonies of the Clerks when they were lost So that William Douny being a famous Clerk his Testimony must make up the Minute after which the Lord Balmirrino cannot resile from his Reason of Compensation or take back the Disposition seing it was his own fault he did not Extract it and cannot make use now of a Supervenient Exception that was not at that time Competent in prejudice of their Creditors Balmirrino being now in much worse condition The Lords found that the Lord Balmirrino might now propone a Reason of Suspension emergent on the late Act of Parliament and pass from his Reason of Compensation and take up his Disposition seing it did not appear that the Process was miscarried through Balmirrino's fault or that the Disposition was delivered to Mr. Dick neither of which did appear by William Dounys Testimony Thomas Crawfoord contra Prestoun Grange Iuly 15. 1664. THomas Crawfoord as Assigney by the Earl of Tarquair to a Decreet of the Valuation of the Teynds Lethinhops obtained Decreet against the Laird of Prestoun Grange Heretor thereof who Suspended upon this Reason that these Lands were a part of the Patrimony of the Abbacy of New-botle which Abbacy was of the Cistertian Order which Order did injoy that Priviledge that they payed no Teynds for their Lands while they were in their own Labourage or Pastourage of which Priviledge not only the Abbots but after them the Lord New-botle and the Defender hath been in Possession and accordingly Sir Iohn Stewart of Traquair having pursued the Lord Newbotle before the Commissaries of Edinburgh in Anno 1587. For the Teynds of the Lands of Newbotle upon the same Defense was Assoilzied which Decreet standing must be sufficient to the Defender ay and while it be reduced likeas the Defender stood Infeft in the saids Lands by the King with express Priviledges decimarum more solito The Charger answered
not for all Right he hath or may have or does not dispone with absolute Warrandice In these Cases the Authors Right supervening accresces not to the Acquirer but himself may make use thereof against the Acquirer much more any other having Right from from him 2ly The maxime holds not if the Authors Right be Reduced before he acquire the new Right in which case the first Right being extinct nothing can accresce thereto but the Author may acquire any other new Right and make use thereof 3ly The maxime hath no place if the Author do not acquire a new Right to the land which could be the foundation and ground of the Tack granted as if he acquired but the Right of an Annualrent which could be no ground of the Defenders Tack much more if he acquire a Right to the Mails and Duties of the lands either upon Sentence to make Arrested Goods furthcommand or an Assignation or Disposition of the Mails and Duties made to the Author for satisfying of a Debt to him by the Disponer This would be no Right to the land that could accresce to Validat a Tack The Defender answered First that his first Defense was yet relevant because albeit his Authors Right were reduced he not being called his Right would be a sufficient colourable Title to give him the benefit of a Possessory judgement untill his bona fides were interrupted by Process because his subaltern Right is not extinct till either by way of Action or Exception it be declared extinct as falling in consequence with his Authors Right reduced seing there is no mention thereof in the Decreet of Reduction 2ly Albeit Diligence had been used yet if the user thereof insisted not but suffered the Defender to possess bona fide seven year thereafter it revives that benefit of a new Possessory Judgement The Lords as to this Poynt found that the Interruption of the bona fides by Process did still take the same away unless it were Prescrived but found that before any Process the Defense should be relevant and therefore sustained only Process for the year since the Citation As to the other Defense in jure The Defender answered that his Defense stands yet Relevant notwithstanding all the Fallacies alleadged which are without warrant in Law and without example with us where this Maxime hath ever been held unquestionable that jus Authoris accrescit Successori unlesse the Successors Right be expresly limited to a particular Right or to any Right the Author then had but the Defender needs not Disput the Equivalence of the Cause unlesse such expresse Limitation were added there is no ground to presume an Exception upon the Personal oblidgment of Warrandice from fact and deed which oftimes is put in Contracts fully onerous but on the contrair there is a several Defense upon that very Clause that the Earl of Hoom whatever Right he should acquire yet if he should make use of it against this Defender he comes against his own Warrandice whereby he is oblidged that he has done nor shall do no deed prejudicial to the Defenders Tack neither is there any ground of Exception albeit the Authors Right was reduced before the new Right acquired from that ground that the new cannot accresce unto the old Right being Extinct because the Maxime bears that it accresces Successori non jure Successoris so that albeit the new Right do not Validat the old Right yet the new Right becomes the Defenders Right eo momento that it became the Authors Right per fictionem juris without deed or diligence and cannot be taken away by any subsequent deed of that Author more then if before such a deed he had particularly established his Successors therein because the fiction of the Law is equivalent to any such establishment neither is their any ground of Exception that the Authors Right Superveening is but an Annualrent which cannot Validat a Tack because if the Author were making use of that Annualrent to poynd the ground the Defender upon his Tack and Warrandice would exclude him because he could not come against his own dâ—ed and oblidgment yea albeit it were but a Right to the Mails and Duties quocunque modo The Lords having considered the Earl of Hooms new Superveening Right and that it was but the Right of an Annualrent of 300 lib. Starling with a Clause that incase of failzie of payment he might uplift the hail Mails and Duties till he were payed and that the Defenders Tack included only Personal Warrandice They repelled the Defense and found that such a Right could not accresce to the Defender to validat his Tack wherein some of the Lords had respect to that point that the Right was Reduced before this new Right but others as it seems on better grounds layed no weight on that if the cause onerous had been the full value and equivalent or if the Tack had born for all Right that I have or shall acquire which would accresce to the Successor as oft as ever it was acquired though all the prior Rights had been reduced but in this Case the Author not acquiring a new Right to the Lands but only to the Mails and Duties which in effect is but Personal it could not accresce to the Defender more then if the Author had been Factor to a thrid Part by the new Right and albeit the Clauses of Personall Warrandice might have Personally excluded the Earl of Hoom himself yet seing that Right could accresce to the Defender the Earl of Hoom having renunced or assigned it to a thrid Partie The Personal Objection against the Earl of Hoom upon the Personal Clause of Warrandice ceases neither did the Pursuer insist upon the Earl of Hooms Right but his own Elizabeth Scrimgeor contra Executors of Mr. John Murray Eodem die IN a Compt and Reckoning betwixt Elizabeth Scrimgeor relict of Mr. Iohn Murray Minister and his Executors these Queries were reported to the Lords by the Auditor First Whether the Defunct dying Infeft in an Annualrent could have an Heir as to moveable Heirship The Lords found he would seing the Annualrent was Feudum and he might thereby be esteemed as Baro as well as a petty Fewer Quest. 2. Whether the Defunct having died the day before Martinmas 1661. He would have right to any part of the Stipend 1662. As the Annat The Lords found he would have the half of 1662. Quest. 3. Whether he would have like right to the Gleib as to the Stipend by the Ann. The Lords found that could not be debaitable betwixt the Defuncts Relict and Executors albeit there was no compearance for a new intrant in which Case they thought that so soon as the intrant 〈…〉 were admitted he would have right to the Manse and Gleib and not the Defunct though the Defuncts Wife would have right to a part of the Stipend due after his entrie Quest. 4. Whether the Heretable Debt could exhaust the moveable Estate of the Defunct to deminish
the Relicts part especially if their be no Heretable Debt due to the Defunct or if the Heretable Debts due by him exceed these due to him The Lords found that seing the Relict could have no benefit of Heretable Debts due to the Defunct being excluded by the Act of Parliament 1641. renewed 1662. Therefore she would have no detriment by such Heretable Debt due by the Defunct whether they exceeded the Heretable Debts due him or no. In this report it falling into consideration whether the Ann would only belong to the Wife there being no Children or half to the Wife and half to the nearest of Kin they thought it would devide equally betwixt them though it was not resâ—lvâ—d whether it needed to be confirmed or would be lyable to the Defuncts Debt Lady Clerkingtoun contra Stewart Iuly 20. 1664. THe Lady Clerkingtoun pursues the Heirs of Umquhile David Stewart Son to the Laird of Blackhall for the Sum of 2000 merks due to her Husband It was alleadged for Walter Stewart Brother to the Defunct Defender no Process because the Heir of Lyne of the Defunct David Stewart was not called in so far as David being the only Son of the second Marriage and having neither Brother nor Sister of that Marriage his Heir of Lyne could not be Walter Stewart youngest Son of the first Marriage but the Heir of the Eldest Son of the first Marriage according to Craigs Opinion de successionibus The Lords found that in this case Walter as the next immediat preceeding was both Heir and of Conquest and not the eldest Brother In this Process it was also alleadged that this Sum was a Clandestine Fraudulent Paction contrare to the Contract of Marriage betwixt the Defunct David Stewart and the Defenders Daughter whereby 10000 merks being Contracted with her in Tochar and Blackhall granted a proportionable Liferent thereto yet under hand without Blackhalls knowledge his Son was induced to give Bond for this 2000 merk to take away 2000 merk of the Tochar and it was remembred by some of the Lords that in the like Case a discharge of a part of a Sons Provision granted to his Father contrair to his Contract of Marriage was found Fraudulent and null by exception The Lords did not decyde but rather desired the Parties should agree but thought this was an unfavourable Act of dangerous consequence Petrie contra Paul Eodem die PEtrie pursues a Removing against Paul who alleadged absolvitor because she possessed by vertue of her Infeftment It was replyed the Infeftment was null by exceptionâ— as following upon a Contract of Marriage which Marriage was dissolved within year and day It was duplyed that the Infeftment behoved to stand valid being in recompence of her Tochar untill her Tochar was repayed Which the Lords found relevant unless it were alleadged that the Tochar was not payed to the Husband but in her own hands or her Debitor Scot of Braid-meadow contra Scot of Thirlstoun Iuly 21. 1664. SCot of Braid-meadow pursues Scot of Thirlstain his Curator for Compt and Reckoning who alleadged absolvitor because the Pursuer having conveened the Defender before the Sheriff to compt and Reckon and to Renunce his Curatorie he was â—hen decerned to Renunce the Office and did Compt for bygones The Pursuer answered no respect to that Decreet because it was during his Minority In which time the Defender had a competent defense that he was not comptable and for the Renunciation of the Office It was a great Lesion to the Pupil which the Curator should not have yeelded to but proponed a Defense against the same that he could not pursue his Curator to Renunce unless he had condescended and instructed malversation The Defender answered that he had just Reason to suffer Sentence because his Pupil was Irregular and medled with his own Rents by force and mispent the same The Lords Notwithstanding of the Decreet ordained Compt and Reckoning and found that the Decreet could not liberat the Curator even for his Omissions after but reserved to the Defender before the Auditor to condescend what deeds the Pupil had done before as being relevant pro tanto Alexander Livingstoun contra Heirs of Lyne and Daughters of the Lord Forrester Iuly 22. 1664. ALexander Livingstoun as Assigney to a Debt awand by the deceist Lord Forrester having charged his Daughters and Heirs of Lyne and they Renunced whereupon he pursues Adjudication Compearance is made for the Lord Forrester who produced his Infeftment and alleadged the Lands therein comprehended could not be Adjudged because the Defunct was denuded thereof before his Death and as he could stop the Apparant Heirs if they were craving themselves to be entered Heirs to their Fathers so the Adjudger in their place could not crave Infeftment The Pursuer answered the Defense was not Competent hoc loco and the Defender would not be prejudged by any Infeftment or Adjudication if he had sufficient Right And therefore as in an Apprysing he might Appryse omne jus that the Defunct had and thereupon be Infeft So he hath the like benefit in Adjudication which hath been ordinarly sustained periculo petentis The Lords sustained the Adjudication as to all Right the Appearand Heirs could have had in the Lands but not as to the Property and therefore would not decern the Puâ—â—uer to be Infeft but sustained the Decreet of Adjudication that thereby he may have Right to Reversions and Clauses resolutive or other Personal Clauses which they thought would be sufficiently carried by the Decreet of Adjudication without Infeftment and would not be prejudged by another Adjudger obtainer of the first â—nfefment but this was besyde the Ordinar Course wherein Adjudications use always to be granted periculo petentis that thereby omne jus may be carried and as in Appryzings it hath been ordinarly found that the Superior must Infeft the Appryzer to compleat his Legal diligence albeitâ—he Superior instruct that himâ—elf hath a Right to the Lands Because his receiving of the Appryzer in obedience will not prejudge his Right and it were unreasonable to force an Appryzer or Adjudger to dispute the Poynt of Rightâ— when all the Writs and Evidences are in their Adversaries hands and the Creditors being meir Strangers who upon their Appryzings or Adjudications can only have Title to exhibition of the Rights and afterward be oblidged to dispute but here the Case was notour to many of the Lords being near the Town of Edinburgh that the Lord Forrester had Infeft his Goodson in his Estate Lord Loure contra Lady Craig Eodem die LOrd Loure being Infeft in the Estate of Craig pursues for Mails and Duties Compearance is made for the Lady Craig Liferenter who alleadges she stands Infeft and in Possession of the Lands The Pursuer answered that any Infeftment as to that part thereof that was not for fulfilling of the Contract of Marriage was Fraudulent and in Prejudice of lawful Creditors and so null by exception conform to the Act of Parliament
he thought there was no Clause in any of these Writs in the Pursuer or his Predecessors Favours The Lords having considered the Oath Ordained the Defender to produce the Disposition denunding the Pursâ—ers Predecessors and thought that being produced simply without condition of Reversion it liberat him from producing the Pursuers Predecessors Progresse though made in their Favours but because the Pursuer alleadged that in their Predecessors Progress there was a Clause de non alienando which would work in his Favour and that the Oath was not positive but that he thought They Ordained the Defender to be examined if he had any Tailzie Daughters of Balmirrino contra Eodem die THe Daughters of Balmirrino having pursued the Heirs Male for their Portions contained in their Mothers Contract of Marriage and for a competent Aliment untill the same were payed The Defender renunced to be Heir and was absent The Lords advised the Contract by which they found the Portion payable at the Daughters age of fyfteen and Aliment till that time but no mention of Annualrent or Aliment thereafter yet they found that the Aliment behoved to be continued till their Marriage or the payment of their Tochar They being Minors and leised by not pursuing therefore at the Age of fyfteen but that they could not have Annualrent seing the Contract bare none Dame Elizabeth Fleming contra Fleming and Baird her Husband November 16. 1664. IN an Accompt and Reckoning betwixt Dame Elizabeth Fleming and her Daughter and Robert Baird her Spouse The Lords having considered the Contract of Marriage in which Robert Baird accepted 12000 merk in full satisfaction of all his Wife could claim by her Fathers decease or otherwayes and there being some other Bands in her Name her Mother craved that she might be decerned by the Lords to denude her Self and Assigne to her Mother seing she was satisfyed and she on the other part craved that her mother and Sir Iohn Gibson might be oblidged to warrand her that her 12000 merk should be free of any Debt of her Fathers It was answered for the Mother that there was no such Provision contained in the Contract and the Lords in justice could not cause her to go beyond the terms of the Contract there was no Reason for such a warrandice seing Debts might arise to exhauste the hail Inventary It was answered for the Daughter that there was no oblidgment in the Contract for her to assigne her Mother but if the Lords did supply that as consequent upon the tennor of the Contract they ought also to supply the other It was answered for the Mother that there was no reason for her to undertake the hazard unless it would appear that there was so considerable Adiminition of her Daughters Portion in her favours as might import her taking of that hazard for that abatement and albeit such a warrandice were granted yetâ— it should only be to warrand the Daughter from the Fathers Debt in so far as might be extended to the superplus of the Daughters full portion above the 12000 merk The Lords found that if there was an abatement in favours of the mother it behoved to import tâ—at she undertook the hazard of the fathers Debt not only as to the superplus but simply but seing it was known to the Lords They gave the mother her choise either to compt to the Daughter for the whole Portion if she thought there was no benefit without any such Warrandice or if she took herself to the Contract and so acknowledged there was a benefit They found her lyable to warrand her Daughter simpliciter Lochs and the Earl of Kincairdin contra Hamiltoun November 18. 1664. HAmiltoun and her Authors having obtained Decreet against Lochs as Heirs to their Father for a Sum of money and Annuals thereof after Compt and Reckoning and being thrice Suspended there are still Decreets in foro Lochs and the Earl of Kincardine now Suspends again and alleadged that in the Compt and Reckoning there were several Recepts of Annualrent which were not at that time in Lochs hands but in the Earl of Kincardines whose Father was Co principal bound conjunctly and severally with Lochs Father The Charger opponed her Decreets in foro and alleadged that Kincairdin had no interest for neither could the Letters be found Orderly Proceeded nor yet Suspended against him and whereas it was alleadged that the Clause of mutual Relief would force him to Relieve the Lochs prorata he had a good Defense that they had not intimat to him the Plea and thereby had Prejudged themselves of the Defense upon the Ticket in his hands The Suspenders answered they were Minors and that Kincardin having a clear Interest might choise whether to Defend them or Defend himself against them The Lords reponed them to the Tickets now gotten out of my Lord Kincairdins hands but declared there should be expense granted against them for all the Decreets to which the Chargers were put Thomas Guthrie contra Sornbeg Eodem die GVthrie pursues Sornbeg alleadging that their being a first Wodset of the Lands of Thriplandhill and certain Tenements in Edinburgh to Alexander Veatch or his Authors and a second Wodset of the Lands of Thriplandhill granted to the Pursuers Father and by a posterior Contract The Pursuers Fathers Wodset was Confirmed and a certain Sum added thereto and for both some Tenements in Edinburgh were disponed with this provision that Guthrie should possess thereby and should be comptable for what was more then his Annualrent and Sornbeg having redeemed the first Wodset and taking a Renunciation thereof and having Right to the Reversion of the whole entered to the Possession of the Tenements in the Town whereupon Guthrie craves that Sornbeg may compt and reckon for the Mails and Duties uplifted by him and possess him in time coming to the hail Mails and Duties aye and while he be payed of his Principal Sum and Annualrents or satisfied by Intromission The Defender alleadged First That he having the Right of Reverson though posterior yet having first Redeemed and made use thereof his Right of Reversion by his Disposition being in effect an Assignation to the Reversion and Guthries second Wodset being a prior Assignation to the Reversion The second Assignation with the first Diligence or Intimation must prefer the Defender This the Lords repelled and found no necessity of an Intimation or Diligence to consumat Guthries Right to the Reversion of the first Wodset seing Guthrie was Infeft by his second Infeftment which was equivalent to the Registrating of a Formall Assignation to the Reversion 2dly The Defender alleadged that being Singular Successor and having Redeemed the first Wodset which is now extinct he possesses by an irredeemable Right and so must have the benefit of a Possessory Judgement The Lords repelled this Defense seing seven years Possession was not alleadged 3dly The Defender alleadged absolvitor from the bygone Mails and Duties before intenting of this Cause because albeit he had not
amongst themselves how dangerous it were if the Creditors or Persons intrusted obtaining Infeftment of an intrusted Estate the Back Bond of Trust being personal would not exclude them and albeit the Person intrusted were not solvendo as in this Case the Intrusted Estate as to the Heirs and Creditors would be inavoidablie lost And some being of opinion that a Personal Exception upon a Back Bond could not be competent to burden or qualifie a real Right or an Action for obtaining thereof But the most part were of opinion that albeit the Right if it were compleat would be real yet this Action for obtaining thereof is but Personal for real Actions are such only which proceed upon real Rights and against the Ground such as upon Annualrents and therefore this being a Personal Action might be excluded or qualified by a Personal Exception upon the Back Bond. And therefore they Adjudged with the Burden of the Back Bond. Earl of Sutherland contra Hugh Gordoun December 1. 1664. THe Earl of Sutherland pursues a Declarator against Hugh Gordoun his Vassal that his Right being holden Feu two terms has run into the third and thereby the Right is extinct not only by the Act of Parliament but by a particular Clause in the Defenders Infeftment at least in the Disposition whereupon his Charter and Seasine proceeds There is also called an Apprizer who alleadged that he being a singular Successor and a stranger to his Authors Rights during the Legal unexpyred is not oblieged to possess and cannot omit his Right by his Authors fault or by his own Ignorance The Lords having considered this Case and reasoning amongst themselves upon the difference of a Clause Irritant in an Infeftment Feu and the benefit of the Act of Parliament they found that if the Pursuer insisted upon the Act of Parliament the Defender might purge the Failzie by payment at the Bar but if he insisted upon the Clause in the Infeftment it behoved to be considered whether that Clause was in the real Right by the Charter and Seasine either specially or generally under the provisions contained in the Disposition Or if it was only in the Disposition In which case though it might operat against the Vassal or his Heirs yet not against the Appryzer unless the Seasine had been immediatly upon the Disposition In which case the Disposition serves for a Charter And therefore ordained the Pursuer to condescend and it is like that in favours of the Appryzer being a stranger they would suffer him to purge at the Bar utcunque in this Cause it was not found necessar to cite all Parties at the Mereat Cross albeit the Letters bear so Veatch contra Paterson December 2. 1664. PAterson having set some Lands to Veatch in Anno 1645. The Tack contained a Clause that the Tennents should be relieved of all publick Burdens and having left the Land in 1653. two or three years thereafter he raised a Pursuit against Paterson the Heretor for payment to him of all the publick Burdens he had payed out and renews the same Pursuit and produces the Receipts of the publick Burdens and alleadges that there was a Penalty in the Tack of an hundred pound that he should Possesse Veatch at the Entry of the Tack wherein he failzied The Defender alleadged that it must be presumed that all the Tickets and publick burden was allowed in the Rent or otherwise past from by the Pursuer seing he voluntarly payed his hail Rent Or otherwise all the publick burdens in Scotland payed by Tennent may infer a Distress upon their Masters to repay the same The Pursuer answered that that presumption could not take away his Writ viz. the Tickets produced but if the Defender gave Discharges he ought to have made mention of the allowance of the publick Burdens therein The Lords having considered the Case as of Importance for the preparative found the Defense upon the Presumption Relevant unless the Pursuer instruct by Writ or the Defenders Oath that these Tickets were not allowed in the Rent And as for the Penalty the Lords found that it ought to be restricted to the damnage and that the same was not now probable otherwise then by the Defenders Oath Iames Wilson contra Alexander Home of Linthill Eodem die JAmes Wilson having pursued Alexander Home of Linthill as Sheriff of the Shire for the Debt of a Rebel whom he suffered to Escape In which this Defense was found Relevant that the Rebel in the taking had wounded these that were taking him and had Escaped vi majore The Laird of Clerkingtoun contra The Laird of Corsbieâ— December 3. 1664. SIr William Dick having Appryzed some Lands holden of the Town of Irving and charged the Magistrates to receive him The Laird of Corsbie having Compryzed the same Lands some dayes after was received by the Town the next day after Sir Williams Charge and about a Month after Sir William was also Infeft Clerkingtoun having Right from Sir William pursues Corsbie First for Mails and Duties Corsbie was found to have the benefit of a possessory Judgement by seven years Possession and thereupon was Assoilzied Now Clerkingtoun insists in a Reduction on this Reason that he having first Appryzed and Charged the Superiour they Colluded with the Defender and gave him a voluntar infeftment the next Day after his Charge and therefore his Infeftment though after ought to be drawn back to his Charge and Diligence and he preferred The Defender answered that the Reason ought to be Repelled because the weight of the Reason is the Pursuers Diligence and the Superiours Collusion which hold not because all the Diligence Sir William Dick did was the first Charge upon the Letters of four Forms which bear only with Certification that in Case of Disobedience Letters of Horning would be direct simpliciter and this is no more then a Premonition and put no Obligation upon the Superiour until the second Charge which was Horning Neither did Sir William ever insist any further then the first Requisition The Lords found that the first Charge was sufficient in this case where the Superiour gave an Infeftment before the Expyring of the first Charge and before the second Charge could be given and thereby that a Superiour might prefer an Appryzer though posterior to a prior do what Diligence the prior could But they found that seing Sir William Dick had been silent until his Legal Reversion was Expyred and had not challenged the Defender who was in Possession and thereby had Excluded him from the benefit of Redemption competent to him if he had been found to be but the second Right within the Legal Therefore the Lords found Sir William Dicks Appryzing Redeemable by Corsbie within year and day after the Sentence Mr. Iames Hutcheson contra Earl of Cassils Eodem die MR. Iames Hutcheson having Charged the Earl of Cassils for his Stipend The Earl Suspends and alleadges first that the Charger had no right to the Whitsonday Term 1663. because
and albeit he had no active Title whereby to Intromet that cannot free him from being lyable passive more then a vitious Intromettor or one behaving as Heir but he ought either to have forborn or procured to himself a Tutory dative and unless Pro-tutors be universally lyable Pupils will be destroyed because any body will meddle with their Means knowing they are lyable but for what they meddle with and the Aâ—nualrent thereof which perhaps will not be made out against them but if they be universally lyable they will either wholly abstain or orderly Intromet by procuring a Title and albeit Overseers be not lyable in the first place yet they are tutores honorari lyble after the other Tutors are discussed As to the third the receipt of the Bonds albeit it bear in Custody yet it is proven by the Writs produced quod se immiscuit by uplifting the sums contained in some of the Bonds and therefore is lyable for the whole The Lords having heard and considered this case at length found that seing there was no Law nor Custom of ours to make a Pro-tutor lyable in all points as a Tutor and that the Civil Law oblieges not us but only we ought to consider the equity and expediency thereof and therefore they found that they could not condemn the Defender for omissions seing there is no Antecedent Law nor Custom and therefore found that as Overseer he was oblieged to nothing and that as Intrometter he was lyable for what he intrometted with and the annualrent thereof after his Intromission and found him lyable for the hail Bonds in his Tickets seing he meddled with a part of the Money thereof and found that if he had meddled with a part of the Sheep that would make him lyable for the whole Sheep of that Flock and the Annualrent thereof and found that his being Designed Tutor contrair to the Testament did not instruct but the Lords Declared that in cases occurring in all time comingâ— they would find Pro-tutors lyable in all points as Tutors and ordained an Act of Sederunt to be made thereupon and published in the House to all the whole Advocats that none pretend Ignorance Sir Alexander Hoom contra Iune 10. 1665. 〈…〉 pursues for mails and Duties of certain Lands It was alleadged for the Tennents no Process because they offered them to prove that they were Tennents by payment of Mail and Duty to Sir Alexander Hoom their Minister before intenting of this Cause and he was not called 2ly Absolvitor because they were Tennents to the said Sir Alexander who had a right of an Appryzing and Diligence thereupon anteriour to the Pursuers Right The Pursuer answered to the first non relevat in an action of Mails and Duties albeit it would be relevant in a Removing In which two Actions the Lords have still keeped that difference that in Removings the Heretor should be called because thereby his Possession was to be interverted but in Mails and Duties the Tennents might Suspend on Double Poinding and thereupon call both Parties Or if a Tennent did collude the master might use the Tennents name but double Poinding could not have place in Removings To the second it is not competent to the Tennents to Dispute their Masters Right which is to them jus tertij but they should have intimate to their Master to compear and defend his own Right who if he will compear and produce his Interest may be heard The Lords Repelled both Defenses unless Sir Alexander compear and produce his Interest A Letter from the KING Iune 14. 1665. THe Lord Ballantine The saurer Depute compeared and produced a Letter from His Majesty to the Lords bearing that His Majesty having heard a doubt moved before him whether Declarators of Ward Non-entries c. should be discussed before the Lords of Session or Lords of Exchequer His Majesty Declared His Pleasure that in the mean time till Hâ—s Majesty got further evidence and clearing therein such Actions should be pursued before the Lords of Session Which Letter was ordained to be Recorded in the Books of Sederunt Aikman contra Iune 15. 1665. AIkman having Charged upon a Bond of borrowed Money Suspended and alleadged that the Charge was truely for a Prentisâ— fee for a Royto a Writter who was oblieged to Educat him three years and it is offered to be proven by Witnesses that he beat the Prentise and put him away with evil usage within a year and an half and so can have no more at most then effeirand to that time The Charger answered that he could not devide the Probation in one single Defense both by Oath and Witnesses and that he could not take away Writting by Witnesses in whole or in part The Lords sustained the Probation by Oath and Witnesses as proponed Cruikshank contra Cruikshank Iune 16. 1665. GEorge Cruikshank pursues the Relâ—ct and Executrix of Cruicksshank his Uncle for payment of a Bond of 400. Pound The Defender alleadged absolvitor because the Defunct had granted an Assignation of certain Sums of Money to David Cruikshanks the Pursuers Brother wherein there was a Provision in favours of the Pursuer that the said David should pay to him aâ—thousand Pound which must be understood to be in satisfaction of this Debt in the first place nam nemo presumitur donare quamdiu debâ—t The Pursuer answered that the foresaid Rule hath many exceptions for it being but a presumption a stronger presumption in the contrair will elide it as in this case The Defunct had no Children and had a considerable fortone and the Pursuer and the said David his Brother were the Defuncts nearest of Kin and albeit the foresaid Disposition be not in the express terms of a Legacy yet it is donatio mortis causa for it contains an express power to the Defunct to Dispone otherwise during his life and in another Provision therein it bears expresly to be in satisfaction of Debt due to that other Party and says not so as to the Pursuer all which are stronger extensive presumptions that the Defunct meaned to Gift no less then the whole thousand pounds Which the Lords found Relevant William Wright contra George Shiel Eodem die WIlliam Wright as assigney by Iohn Shiel in Carlowrie obtained Decreet against George Shiel in Nortoun as Heir to Iohn Shiel his Brotherâ— for payment of two Bonds George Shiel Suspends on this Reason that the Assignation was gratuitous without onerous Cause which he offered to prove by the Assigneys Oath and offered to prove by the Cedents Oath that the Debt was satisfied The Lords having at length considered and Debated this Case among themselves whether the Cedents Oath could prove against an Assigney when the Assignation was gratuitous some were of opinion that it could not because nothing can prove but Writ or two Witnesses or Oath of Party and the Cedent is not the party but the Assigney and albeit the Cedent could be a Witness he is but one and because it
is a Rule with us that the Cedent cannot Depone in prejudice of the Assigney unless the Charge be to the Cedents behove and we have no Exception whether it be gratuitous or onerous but the most part were of opinion that in gratuitous Assignations the Cedents Oath should prove because an Assigney is but Procurator in rem suam and doth not proceed upon his own Right but utitur jure authoris and therefore albeit for Commerce our Custom hath not allowed the Oath of the Cedent in prejudice of the Assigney Yet the case in a gratuitous Assignation hath neither been Debated nor decided and therefore in it the Cedents should be sufficient seing it cannot be presumed that he who voluntarly gifted will swear to his Assigneys prejudice and that truely the Cedent is Party and the Assigney pursues but as Procurator in rem suam And seing we have no Law regulating this case equity and expedience ought to rule it but in equity no man can put his Debitor in a worse condition without his consent either as to the matter or as to the manner of Probation and in expedience the excluding of the Cedents Oath in this case opens a way for Fraud that after Debts are payed they may be assigned even freely and the Debitor is excluded from his Probation of the payment The Lords before answer Ordained the Assigneys Oath to be taken whether Assignation was for a Cause onerous or not Bruces contra Earl of Mortounâ— Eodem die BRuces pursues the Earl of Mortoun for payment of a Bond who alleadged that the Bond was assigned by the Defunct and the Assignation intimat and a Decreet obtained against him thereupon The Pursuers answered that this was jus tertij to the Defender who could not Dispute the Assigneys Right The Defender answered that it was exclusio juris agentis The Lords Repelled the Defense as being super jure tertij and decerned but ordained Suspension to pass without Caution or Consignation that the Assigney may be called and Dispute his Right Gideon Murray contra Iune 17. 1665. GIdeon Murray having obtained Decreet against for certain Merchant Ware wherein he was holden as confest and thereafter reponed and the Decreet turned in a Libel The Receipt of the Goods was found probable pro ut de jure and was accordingly proven and the Cause being concluded and the Depositions advised It was alleadged for the Defender first that he produced and instantly verified that the Pursuer had granted him a Bond after the furnishing of the Account of a greater sum which must be presumed to have included satisfaction of the Accompt 2ly The Decreet was more then three year after the furnishing and so was not probable by Witnesses but that manner of Probation was prescribed by the Act of Parliament The Pursuer answered to the first that both those Exceptions were competent and omitted and now after Probation taken there was no reason to sustain that alleadgence for after Litiscontestation no new exceptions can be admitted unless they be instantly verified and emergent or at least new come to knowledge as this is not for it was obvious being founded upon so known a Law as to the Prescription and as to the other it is but a weak presumption no way relevant unless the posterior Bond had exprest to have been after Compt and Reckoning The Defender answered that the Lords might ex nobile officio repone Parties to Defenses instantly verified after Litiscontestationâ— and albeit they ordinarly repone them when the Exceptions are emergent or new come to knowledge yet in other Cases ex officio they may as when there is so pregnant a presumption concurring 2ly Albeit Prescription hinder Pursuits active Yet seing the Defender was Creditor by Bond in a greater Sum. The Pursuer needed not pursue for the Accompt quia intus habuit and the other Party might have compensed upon the Bond and therefore as in the Civil Law in debitis naturalibus non civilibus licet non dat actionem dat tamen exceptionem so here the Pursuer may except upon account after three years The Lords found the presumption not Relevant and found that the manner of Probation being prescribed it could not be made use of either by Action or Exception albeit there was a compensation competent yet it befell not ipso jure seing it was not liquid but liquidable by the other Parties Oath But as to reponing in this state of the Process though many of the Lords were in the contrary yet seing the exception was but a Prescription which is but by positive Law and odious so that the Pursuer might as well have craved to be reponed against the Prescription as the Defender against his omission of a palpable Defense yet in respect of the Prescription and that the Party was poor the Lords Reponed Christian Braidie contra Laird of Fairny Iune 21. 1665. CHristian Braidy Relict of Iames Sword having Inhibite George Glassfuird upon his Bond pursues a Reduction of a Disposition granted by George to the Laird of Fairny of certain Lands as being done after her Inhibition Fairny having produced the Disposition it bear to be Holograph whereupon it was alleadged that it was null by the Act of Parliament requiring all Writs of importance to be subscribed before Witnesses and this Disposition wanted Witnesses The Defender offered to prove it was Holograph The Pursuer Replyed that the question being de data not that it was subscribed but when it was subscribed whether prior or posterior to the Inhibition Witnesses could not be received where the question was not against the granter of the Writ or his heir but against a third Party The Lords before answer did appoint Witnesses to be examined omni exceptione majores who being now Examined both Deponed that they saw the Disposition subscribed and that it was long before the Inhibition It was then alleadged that this being done but before answer it was intire to Discuss the Relevancy of the alleadgence whether a Date might be instructed by Witnesses 2ly Albeit Witnesses omni exceptione majores were receivable for such an effect that these Witnesses were not such the one being but a Town Officer and the other Procuratorfiscal of a Sheriff Court especially seing there were strong presumptions of fraud as that nothing followed upon this Disposition that it remained Clandestine for several years that thereby the Disponer becoming Bankrupt had excluded some of his Creditors and preferred others and that there was no penuria testium seing both thir Witnesses assert they saw it subscribed and the one Deponed that he Dited it so that their Names might easily have been insert and therefore it must be thought it was done for some Fraudulent intent as to be of an anterior Date to the Inhibition and therefore in such a case the Witnesses should be Persons of Fame and known Reputation It was answered that the Witnesses adduced were sufficient seing they were above exception Frst because
Cautioner who were free to have pursued for the Tochar and did not and after 40. years she cannot be put to instruct that the Tochar was payed albeit she had been Debitor therefore her self much more when another is Debitor The Lords found both these replyes relevant Mr. John Colvil contra The Lord Balmirino Iuly 6. 1665. MR. Iohn Colvil as Executor confirmed to Umquhil Mr. Iohn Colvil Minister at Kirknewtoun pursues the Lord Balmirino for the Stipend the year 1663. and for the profit of the Gleib The Defender alleadged absolvitor because payment is made bona fide to the intrant before intenting of this Cause It was answered it could not be payed bona fide because the Minister died after Ianuary 1663. VVhich being so notour to my Lord Balmirino to whom the most of the Paroch belongs and he being so near it he ought to have made payment to no other of that year which belonged to the Defunct Minister as his Ann extending to the whole years quia annus inchoatus habeâ—ur pro completo as to the Ann so that if the Minister lived till the first of Ianuary he has that whole year The Defender answered that an Ann is only due to the VVife and Bairns of the Defunct Minister and this Minister had none 2ly That the point is so dubious in Law he knew not that it would be his unless he had lived till Whitsunday 3ly The benefit of the Gleib must be the intrants and falls not under the Ann as a part of the Stipend no more then the Manss The Lords repelled the Defense as to the Stipend and found it belonged to the Executor as nearest of kin and that the Defunct surviving the first of January gave him that whole year but found that the Gleib did not fall under the Ann nor did belong to the Defunct but only the Crop thereof if it were sowen by himself before he dyed Earl of Argyl contra Mcdougalls of Dumolich and Ziner Iuly 14. 1665. THe Earl of Argyl having raised a double poynding in name of the Tennents of certain Lands calling himself on the one part and Mcdougals on the other as both claming right to the Mails and Duties Mcdougals produce a Decreet of Parliament whereby they having pursued the late Marquess of Argyl alleadging that he had obtained the Right and Possession of these by Force and Oppression during the troubles whereupon his Rights were reduced and they restored to their Possession The Earl of Argyl produced his Seasine upon the Kings Gift with two Dispositions of these Lands granted to his Father one in Anno 1632. and another in Anno 1639. And thereupon craved to be preferred Mcdougals produced a disclamation of the Process in name of the Tennents and alleadged no Process because the Tennents who were pursuers past from the pursute It was answered that their names was but used that the Parties might discusse their Rights and so they could not disclame it being ordinar to use Tennents names in double poyndings It was answered that there was no Reason that Tennants should be forced to make use of their names to intervert their Masters Possession The Lords found that the Tennants could not disclame especially the possession being but late by Decreet of Parliament and was contraverse It was further alleadged for Mcdougals that there was nothing particularly lybelled as Rents due by the Tennants and therefore there could be no sentence The Lords repelled the alleadgeance and found the Sentence might be in general to be answered of the Mails and Duties as is ordinar in Decreets conform It was further alleadged for Mcdougals that seing this double poynding was in effect now used as a Declarator of Right no Process thereupon because in all Declarators Law allows the Defenders 21 days upon the first Summons and six on the next that they may prepare and produce their Rights and here there is but one Summons on 6 days 2ly No Process because Mcdougals being founded upon a Decreet of Parliament my Lord Argyl produces no Title but only a Seasine not expressing these Lands 3ly Decreets especially of Parliament cannot be taken away but by Reduction and not thus summarly It was answered that my Lord Argyl insisted here for taking away the pretended Decreet in Parliament and restoring the King and Donatar to the possession of the Lands so that in effect it is not so much a Declarator of a Right as a possessory Judgement And as for the Title it is sufficient to produce a Siasine seing in the Decreet of Parliament My Lord Argyls Right and possession is quarrelled as wrong and therefore was acknowledged to have been and seing Mcdougals produces no other Right and the King's Advocat concurres and if need beis my Lord Argyl offers to prove the Lands in question are parts and pertinents of the Lordship of Lorn exprest in his Seasine and albeit this be pretended to be a Decreet of Parliament yet by Sentence of Parliament since it is remitted to the Lords and is in it self visibly null as having been intented against my Lord Argyl and pronounced after his death and Forefaulture without calling the Kings Officers The Lords repelled these Defenses in respect of the replyes James Mathison contra Harie Gib Eodem die JAmes Mathison having obtained a Decreet before the Commissars of Edinburgh against Gib he Suspends and alleadges it was not a cause consistorial being a bargain of Victual and that it was not probable any other ways but by his Oath now after 12. or 13. years In respect of the Act of Parliament anent house Mails and others which comprehens this case The Lords repelled the alleadgeance and found that bargain of Victual not comprehended under that Act of Parliâ—ment James Borthwick contra Janet Skeen Iuly 15. 1665. JAmes Borthwick being Infeft in the Lands of Oversneip pursues Reduction and Removing against Ianet Skeen the Liferentrix It was alleadged that the Feer being minor non tenetur placitare super haereditate paterna And for the Liferenter that the minor was oblidged to warrand her Liferent-right and her Possession was the minors Possession so that if her Right were reduced and she removed the priviledge of the minor were altogether overthrown It was answered That the priviledge was personal and stricti juris and was to be extended to Majors and as for the warrandice it was never sustained as a ground to exclude a Reduction because warrandice would be inferred against a Minor which is but a personal obligement and not haereditas The Lords repelled the alleadgance for the Liferenter Who alleadged further that her Right being Reduced the Fee was absolute in the person of the Minor who would not suffer the Liferentrix to be removed but she did possesse by the Minors tollerance It was answered that the Pursuers Reduction behoved to accresce to him and his Right and not to the Minors Right that he behoved to enter to the Liferenters possession which would not prejudge the Minor for if
Eodem die JOhnstoun having Appryzed the Lands of Achincorse and charged the Lord Dumfries his Superiour to receive him pursues the Tennents thereof for Mails and Duties Compearance is made for the Lord Dumfries Superiour who alleadged no Process till a years Rent were payed to him as Superiour 2ly It is offered to be proven that Achincorse the Vassal was in nonentrie or the Liferent Escheat fallen by his Rebellion and therefore the Superiour ought to be preferred The Pursuer answered to the first that seing it was the Superiours fault he received not him upon the charge albeit he offered to receive him now he could not have a years Rent till the Pursuer insisted to be infeft To the second the Defense ought to be Repelled seing there was no Declarator intentit The Defender answered that seing he was to change his Vassal and the Appryzer sought possession before he had access he behoved to pay the years Rent seing by the Appryzing and the charge the Superiour will be excluded from his Casualities To the second the Superiour being acknowledged by the charge he might crave the Casualities of the Superiority by way of competition and offered to produce the Horning cum processu The Lords sustained the first Defense but not the second seing there was no Horning produced nor Declarator intentit Janet Brotherstones contra Ogil and Orrocks Iuly 26. 1665. JAnet Brotherstones by her Contract of Marriage declaring that she had in Money Bonds and Goods 4000 merks is provided to all the conquest and to the Liferent of the whole Means and Moveables she pursues her Husbands Heirs for implement who alleadged absolvitor because she has not fulfilled her part of the Contract and instructs not that she delivered to her Husband 4000. merks in worth or wair It was answered it must be presumed that she has done it after so long time seing all she had came in the Possession of her Husband The Lords found the presumption not sufficient but before answer ordained the pursuer to condescend by Witnesses or otherwise how she would prove that she had that means the time of the Marriage and ordained these to be examined ex officio Thomas Kennedie of Kirkhill contra Agnew of Lochnaw Iuly 27. 1665. KEnnedie of Kirkhill as Assigney by Thomas Hay of Park to a Bond of 1000 lib. granted by Andrew Agnew younger of Lochnaw charges him thereupon who Suspends and raises Reduction on this Reason that the Bond was granted at the time of his Contract of Marriage clandestinelie without the knowledge of his Father who was Contracter contra pacta dotalia contra bonos more 's The Defender answered that he having given a very great Tochar viz. 10000. lib. above his Estate which is all payed to his Good Sons Father he did declare that he was not able to give so much and thereupon he got this Bond not to have Execution till after his death which he might lawfully do having given a Tochar suitable to the condition of the Receiver and above the condition of the Giver The Lords repelled the Reason in respect of the Answer This was thereafter stopt to be further heard Lilias Hamiltoun contra Her Tennents Eodem die LIlias Hamiltoun being Infeft by her Husband in Liferent pursues her Tennents compearance is made for their present Master who alleadged that her Husbands Right was only a Wodset granted by him and that he had used an Order and had Redeemed the Wodset and payed the money to the Pursuers Husband and neither knew nor was oblidged to know the Pursuers base Infeftment from her Husband the Wodsetter which had never any other Possession but the Husbands It was answered that the Pursuers Seasine being Registrate he was oblidged to know the same as well as if it had been an Inhibition especially seing there was no Process of Declarator in which case all Parties having intress should have been called at the Mercat Cross but a voluntar Redemption albeit upon an Order The Lords sustained the Defense notwithstanding of the Reply Adam Rae contra Heretors of Clackmannan Eodem die UMquhile Colonel Rae having advanced Victual to the Armie at Leith in Anno 1650. And gotten an Assignation to the Maintenance of August and September from Sir Iohn Smith then General Commissar in satisfaction thereof pursues the Heretors of Clackmannan for their proportions who alleadged that by their quartering of the Kings Armie their whole Rents Anno 1650. was exhausted It was answered that it was not our that the exhausting was after the Battel of Dumbar which was upon the third of September 1650. And so could not extend to the maintenance of August and September which was Assigned before for so onerous a cause The Lords repelled the Defense in respect of the Reply Captain Muire contra Frazer Iuly 27. 1665. CAptain Muir having obtained Decreet against the Heir of Colonel Hugh Frazer for 1000 merks before the Commissioners in Anno 1658. Charges thereupon They Suspend and raise Reduction on this Reason that the Decreet was null without probation proceeding only upon a Copy of an obligation alleadged taken out of the Register by one William Baily who keeped the same at London which could not prove not being under the hand of the Clerk Register or his Deputes which being proponed in the Decreet was unjustly repelled The Pursuer answered First There was no review raised within a year conform to the Act of Parliament and so the Decreet was not quarrellable upon iniquity 2ly Bailies Oath was taken by Commission that the Extract was subscribed by him 3ly The Defender proponed a Defense of payment and so acknowledged the Debt Debt It was answered that the Suspenders were and are minors and in the Act of Parliament there is an exception of Minors that they may Reduce these Decreets within a year after their Majority 2ly They ought to be reponed against their proponing of payment being Minors and as to Bailies Oath neither his Subscription nor Oath can make a probative Extract unless the new Extract were now produced seing the Registers are returned The Chargers answered that if the Suspender would alleadge that any Book of the Register containing Writs Registrat about the time of this Extract were extant and returned relevat but it is known that several of the Books are lost and this amongst the rest The Lords would not sustain the Decreet upon Bailies extract simplie neither did they put the Charger to the proving of a tenor but allowed the charger to condescend upon the way of his Instruction that such a Bond was truly subscribed by the Witnesses insent or otherwayes and ordained the Witnesses to be examined Adam Rae contra Heritors of Clackmannan Iuly 28. 1665. IN the Cause of Adam Rae mentioned yesterday some of the Heretors alleadged absolvitor because they were singular Successors and by the Act of Parliament for the Old Maintenance Singular Successors were excepted The Lords repelled this alleadgeance and found that exception only to be
extended to the maintenance contained in that Act. Bessie Scot contra Somervail Eodem die BEssie Scot having charged Somervail who was Cautioner in an Suspension for payment of an Sum of Money contained in a Bond Suspended He Suspends on this Reason That the Money was consigned in the hands of Mr. George Gibson Clerk to the Bills for the time It was answered that Mr. George Gibson was now out of Office and insolvent and the Consignation behoved to be upon the peril of the Consigner It was answered that the the Consignation must be upon the peril of that Partie who was the cause of Consignation and that was the Charger in so far as it was instructed by an Instrument produced that the Suspender offered the Annualrent and so much of the Penaltie as the Charger would have Declared upon her Oath that she had truely payed which she refused unless the whole Penaltie were payed whereupon he consigned through her Fault The Lords sustained the Reason and ordained the Noltar and Witnesses to depon upon the Truth of the Instrument for Instructing thereof Dowglas contra Cowan and Russel Iuly 29. 1665. PEter Russel by his Ticket acknowledged him to have received a certain Quantity of Wine and oblidged him to make payment thereof according to the Condition agreed upon Dowglas being Assigned to the Ticket insists for the ordinary Price of Wine It was alleadged no Process for the ordinar price of Wine but only for the price agreed on which behoved to be condescended on and proven by the Debitors Oath being above an hundred pounds It was answered that seing these Conditions were not adjected the ordinary price was to be understood unless it were proven by the Debitor what they were c. that they differred from the common Price The Lords found that the Debitor by his Ticket behoved to condescend on the Conditions qui potuit legem apertius dicere and not the Pursuer but they found Witnesses might prove the condition Heretors of Don contra Town of Aberdeen Eodem die THis day Report being made concerning the Cruives of Don. The Lords found that there was no necessity to keep alwayes open a mid-stream notwithstanding the several Acts of Parliament made thereanent which upon enquiry through the Kingdom they found to be in desuetude and especially in these Cruives to be made past memory with Saturndayes stop only and ordained the distance of the Hecks to be three Inch Scots measure whereof 27. make an Elle vide supra Lady Knapeirn contra Sir Robert Farquhuar November 9. 1665. SIr Robert Farquhar being Infeft in certain Lands by the Laird of Knapeirn with his Ladies consent pursues the Tennents and obtains Decreet for Mails and Duties The Lady pursues Reduction on these Reasons that she stood Infeft and in possession eleven years after her Husbands death bona fide without any persuit and so being in judicio possessorio she was tuta reâ—â—ptione It was answered that the benefit of a possessorie Judgement was never granted to any partie in prejudice of these to whom that Party had Disponed or consented to a Disposition which includes an Obligation to possesse them nor can they be in bona fide contrair their own consent and deed to possesse The Lords repelled the Defense in respect of the Reply It was further alleadged that Sir Robert by a Declarator produced had acknowledged nothing of that Wodset due but what was contained in a fitted accompt written by him and subscribed by both Parties which did innovat the Wodset and Sir Robert could have no Right thereby but by this Compt which only could touch the Husband Secondly Albeit the Wodset did stand in so far as the Compt extends yet Sir Robert ought to have no benefit by the Wodset till he produce the Accompt It was answered that the Accompt was never in his custodie but given to Knaperin in whose favours it was introduced and seing it was clear that his Wodset was not extinct but restricted the Pursuer behoved to condescend in quantum and to prove it alliganti incumbit probatio The Lords ordained and appointed Sir Roberts Oath to be taken before answer on his having the compt and yet they sound that he ought to produce 〈◊〉 but the Interlocutor was stopt the next day Teilzifeir contra Geddes November 11. 1665. MArion Geddes having granted to Samuel Veatch a blank Bond of 2000. merks Tailzifer being Creditor to Samuel Veatch Arrests all Sums in her hand owing to Samuel she depones that she was no wayes Debitor to Samuel but by a Bond given Blank in the Creditors name and that she knew not whose name is filled up therein compearance is made for whose name is filled up in the Bond and he alleadges he ought to be preferred to the Arrester because he offers him to prove his name was filled up in the Bond and that before the Arrestment the Bond was Registrate in his name and that before the said Marion deponed he had used Inhibition thereupon which she could not but have known It was answered for the Arrester that he ought to be preferred because albeit the Bond was blank ab initio yet in rei veritate Samuel Veatch was Creditor and so he behoved to be Legaily denuded which could not be done by filling up any other persons name without intimation thereof made to the Debitor for seing a Direct Assignation was not valid without an Intimation much less should this indirect way by the Creditors filling up another name than his own in the Blank which is in effect an Assignation And seing the Lords have already found that the Debitor acknowledging that he gave a blank Bond to any person and knows not whose name is filled up in it is lyable to any Arrester albeit he be under hazard to pay again to that person who has his Bord in justice it followeth that such Bonds must be intimat otherwayes it will unavoidably infer double payment It was answered that the Law requires Intimation to Assignation as a necessary Solemnity but has not required the same to the filling up of a Blank-bond the case whereof is not alike with an Assignation because where the Bond is blank the Debitor cannot pay any thing bona fide safely till he see the Bond filled up but where he knows the name filled up he may pay bona fide to the Cedent not knowing of the Assignation It was answered that the Law did require to all Assignations Intimation but the Case of Blank-bonds was but a late invention to defraud Creditors that it might not be known who was Creditor but seing it is truly an Assignation it deserves no favour more than a Direct Assignation and so should have as much Solemnity The Lords preferred the Arrester but because the Case was a leading Case and new after a second Interlâ—cutor adhering they allowed the Advocats to offer by Bâ—ll any new Reasons and particularly if it could be alleadged that the Debitor granter of the
Procurator that might infer his being informed or having Warrand but only his taking a day to produce they would not sustain the Decreet unless the Charger instructed the same by proving the quantities White contra Horn. Novemb. 25. 1665. IN a Competition between White and Horn the one having Right by progresse to the Property of a piece Land and the other to an Annualrent forth thereof It was alleadged for the Proprietar First That the Annualrent was prescribed no Possession being had thereupon above fourty years 2ly The Original Right produced to constitute the Annualrent is but a Seasine without a Warrant and albeit the Common Author have given Charter of Ratification thereof yet it is after the Proprietars Seasine given by the Common Author to his Daughter propriis manibus It was answered for the Annualrenter to the first That the Prescription was interrupted by Citations produced used upon a Summons of Poinding of the Ground before the Baillies of the Regality of Dumfermling where the Lands ly As to the second that the Confirmation granted to the Annualrenter is prior to any Charter Precept or other Warrant granted to the Proprietar for as for the Seasine propriis manibus that has no Warrant produced The Proprietar answered that the Interruption was not Relevant because the Executions were null in so far as the Warrant of the Summons bears to Cite the Defender Personally Or otherwise upon the Ground of the Land or at the Mercat Cross or Shore of Dumfermâ—ing whereupon such as were out of the Countrey were Citedâ— and not upon 60. dayes but 25. which Reasons would have excluded that Decreet and therefore cannot be a legal Interruption As to the other albeit the Pursuers first Seasine want a Warrant yet it hath been cled with natural Possession and the Annualrentars hath not The Lords Repelled both these alleadgences for the Proprietar and found the Executions sufficient to interrupt albeit there were defects in them that might have hindred Sentence thereupon especially in re antiquâ the Lands being in Regality where the custome might have been even to Cite Parties absent out of the Countrey at the head Burgh of the Regality and the Shore next thereto and as the Proprietars Right was not Established by Prescription so they found that Possession could not give a possessory Iudgement to the Proprietar against an Annualâ—entar which is debitum fundi Mr. Iames Peter contra Iohn Mitchelson Eodem die MR. Iames Peter Minister of Terregh pursues Mitchelson for a part of his Stipend due out of the Defenders Lands who alleadged no Process till the Pursuer produced a Title to the Defenders Teinds seing he brooked them by a Tack It was Replyed he offered him to prove seven years Possession as a part of the Stipend of Terreghs Which the Lords sustained without any Title of Possession Bruce contra Earl of Mortoun Novemb. 28. 1665. IN an Action for making arrested Sums forthcoming between Brucâ— and the Earl of Mortoun The Lords found that the Summons behoved to be continued seing they were not past by a special priviledge of the Lords to be without continuation albeit they were accessory to the Lords Anterior Decreet against the principal Dâ—bitor which they found to be a ground to have granted the priviledge of not Continuation if it had been desired by a Bill at the raising of the Summons but not being demanded They found quod non in erat de jure Younger contra Iohnstouns Eodem die PAtrick Porteous having a Tenement of Land in Edinburgh provided his Wife thereto in Liferent and dyed before the year 1608. his Wife lives and Possesses as Liferenter Yet in Anno 1608. one Porteous his Brother Son was Served and Retoured Heir to him and Infeft as Heir and Disponed the Land which is come through three several singular Successors to Iohnstouns who are Infeft therein as Heirs to their Father in Anno 1655. Youngâ—r having acquired aâ— Disposition from Stephanlaw Porteus Residenter in Polland causes Serve the said Stephenlaw as nearest Heir to the said Patrick whereupon Stephenlaw is Infeft and Younger is Infeft There are now mutual Reductions raised by either Parties of others Retours and Rights wherein Younger alleadging that his Author Stephenlaw Porteous was the nearest of Kin in so far as Patrick the Defunct had four Brethren and Stephen Law Porteous was Oye to the eldest Brother whereas the other pretended Heir was Son to the youngest Brother which he offered him to prove It was answered for Iohnstouns Absolvitor from that Reason of Reduction because they had Established their Right by Prescription in so far as they had a progress of Infeftments far beyond the space of fourty years cled with Possession by the Liferenter whose Possession behoved to be accounted their Possession because the Act of Paâ—liament anent Prescription bears that the Person Infeft being in Possession by himself or by his Tennents or others deriving Right from him and therefore the Liferenters Possession is alwise the Fiars 2ly By the first Act of Parliament anent Prescriptions of Retours they prescrive if they be not quarrelled within three years And by the last Act of Parliament 1617. anent the Prescription of Retours they are declared to be prescrived if they be not pursued within twenty years And by the general Act of Prescription 1617. There is a general Clause that all Reversions Heretable Bonds and all Actions whatsomever shall prescrive if they be not followed within fourty years By all which Stephenlaw Porteous not being Retoured till the year 1655. nor having moved any Action against the first Retour This Action of Reduction and all other Actions competent are prescribed It was answered for Younger that he being Heir to maintain the right of Blood which is the most important Right competent by the Law of Nations no Statute nor positive Law can take it away unless it be express and evident for the right of Blood can never prescrive seing it is certain that a man may serve himself Heir to his Predecessor though he died a 1000. years since if he can instruct his Service And as for the Acts of Parliament alleadged upon they cannot take away any Right of Blood for the first Act of Prescription on three years expresly bears to extend to these within the Countrey as Stephenlaw was not and the last Act is expresly only in relation to Retoures to be deduced thereafter but this first Retour quarrelled was deduced long before viz. in Anno. 1608. As for the general Act of Prescription seing it mentions not Retoures but only Infeftmentsâ— Reversions and Heretable Bonds The general Clause of all Actions whatsomever ought not to be extended to Retoures especially seing the meaning of the Parliament appears not to have been extended by them to Retoures because the very next Act doth specially Order the prescription of Retoures As to the Iohnstouns Infeftments they have not the benefit of Prescriptions never being cled with Possession For the Liferenters
jus mariti could not carry her Liferent seing immediatly after the marriage he went out of the Countrey and was never heard of since and she had obtained Decreet of Adherence against him and was going on in a Divorce for malitious deserting The Lords Repelled the Alleadgance seing the Divorce was not compleat and this was four years anterior The said Isobel further alleadged absolvitor for the Rents of her Dwelling-house for bygones and for what she had uplifted because she had done it bona fide cum titulo viz. her Husbands obliegement to aliment her as his Wife bona fide possessor facit fructus consumptos suos Which the Lords found Relevant and that albeit her Husband would be lyable for these Rents which alimented his Wife yet not she David Veatch contra Iohn Duncan Eodem die DAvid Veatch as heritor of the Miln of Dersie pursues Iohn Duncan for abstracted Multures and obtains Decreet He Charges and Iohn Suspends both parties being ordained to produce their Rights the Heritor of the Miln instructs that his Author was first Infeft in the Miln before the Defenders Author was Infeft in the Land and produces a Decreet of the Lords in Anno 1575. declaring the Thirlage wherein it was alleadged that the Heretor of the Miln being first Infeft of the Common-author and producing a Precept from Cardinal Beaton then Bishop of St. Andrews Common-author ordaining the Tennents of the Defenders Land to pay the Multure to the Miln of Dersie It was alleadged this was not sufficient seing the Charter did not Thirle the Defenders Lands but was only of the Miln and Multure thereof generally as for the Cardinals Precept it was not with consent of the Chapter and so could not extend beyond the Bishops Life yet the Lords declared the Astriction notwithstanding it was now alleadged that the Defender was Infeft cum molendinis muliuris by vertue whereof he had prescribed his freedom by 40. years time It being answered that once being Thirled by the Common-author no Charter granted by him thereafter could prejudge the Feuar of the Miln And as for Prescription offered to prove Interruption by paying of Insucken-multures within the space of 40. years William Cranstoun contra Walter Pringle Decemb. 12. 1665. WIlliam Cranstoun being Vassal to Greenknow he was amerciat in his Court for a Blood committed upon Walter Pringle and being charged Suspends upon this Reason that Greenknow not being a Baron or the Kings immediat Tennent had no power of Blood-waits unless he had had an express Deputation from his Superiour the Marquess of Huntly who is Baron only having the Jurisdiction It was answered that Greenknow was Infeft cum curiis bloodwitis Which the Lords found sufficient Mr. John Pearson contra Martin and his Son Eodem die MR. Iohn Pearson by his Contract with Eupham Martin did conceive the Clause of his Tochar in thir Terms that it should be payable to him and her the longest liver of them two in Conjunct-fee and Liferent and to the Heirs of the Marriage in Fee which failzing to return to the Wifes Heirs By a second Contract betwixt the Husband and his Wife it was agreed that that Clause should be altered and that failzing the Heirs of the Marriage it should return to the mans Heirs who thereupon pursue Declarator of Right by vertue of the second Contract The Defender being absent The Lords advised the Cause wherein the difficulty appeared to be that the Tochar was provided to the Bairns in Fee So that the Husband and Wife could not alter the Succession being both Liferenters because that the Clause bears to them in Liferent and to the Bairns in Fee yet the Lords sustained the Declaratâ—r seing the Husband and Wife were named Conjunctfeers so that either of them behoved to be Fear and the adjection of and Liferent could only be understood of the Person that were Liferentar and albeit it was exprest to be the Bairns in Fee yet that could be but of a substitution seing there were no Bairns then existent Christian Barns contra Hellen Young and her Spouse Eodem die HEllen Young being provided to the Annualrent of 800 merks and to the Conquest obtained Decreet thereupon against Christian Barns the Executrix who Suspends on this Reason that the Pursuer was Infeft by the Defunct her Father in a Tenement in full satisfaction of these provisions It was answered nonrelevat unless it were alleadged that the Charger had accepted Whereupon it was alleadged Accepted in so far as she had uplifted the Mails and Duties after her Fathers death and had no other Title ascribe it to It was answered that she had another Title viz. her Goodsir had Disponed this Tenement to her Father and Mother the longest liver of them two and the Bairns of the Marriage be vertue whereof as Heir Appearand of the Marriage she might contiue and uplift and miskene the new infeftment given by her Father Which the Lords founds relvant unless the other Partie Insist on that alleadgeance proponed that the Pursuer had pursued and obtained payment upon the Title bearing in satisfaction John Ramsay contra James Wilson and others Eodem die COlonel Cunningham having impignorat a number of Jewels of great Value and immediately thereafter went out of the Countrey and never returned These Jewels were in the Custody of Iohn Ramsay who and Mr. Robert Byres had given Bond to make them furthcoming to the Colonel and now Iohn Ramsay having been Confirmed Executor to the Colonel pursues Iames Wilson and others for Exhibition and Delivery of the Jewels The Defenders alleadged absolvitor because the Jewels were Impignorat by Mr. Robert Byres for a considerable Sum of Money who having them in his Possession it was a sufficient ground for the Defenders to Contract with him because property of Moveables is presumed by Possession and therefore it is not relevant to lybel that once the Jewels were Colonel Cunninghams and therefore they must be restored to his Executors unless it were also lybeled quomodo desijt possidere so that the Jewels behoved to have past from him without his own Consent or Alienation otherwise it is alwayes presumed that he sold or gifted them and needs not be proven else no man could be secure of any Moveable if he who could instruct that he bought it could recover it from all possessors unlesse they could instruct all the wayes the same past from the first Owner The Pursuer replyed that the Case is not here as to Moveables that are ordinarily sold in Mercat but in relation to Jewels of great Value which cannot be presumed to have been Mr. Robert Byres because they were never worn by him as being his proper Good nor were they Competent to any of his quality and therefore the Defenders were in mala fide to acquire them from him without knowing his Right 2ly It is instructed by Mr. Robert Byres Letter produced that he acknowledged them to be Colonels before the Impignoration and it s
offered to be proven that he broke up Iohn Ramsays Celler and took them out 3dly The Colonel Impignorat them by Writ and so the Presumption of allienating them ceased because he went immediately out of the Countrey and never returned It was answered that there is no difference of Jewels more than any other Moveables which use to passe without Writ from Jewellers that sell them and the Pursuer having possest them these 10. or 12. Years without question has right thereto by usucapion The Lords found the alleadgeances joyntly relevant to elied the presumption and that there is no usucapion in Moveables in Scotland by Possession in less then 40 years but only a presumptive Title which is altogether eleided by the Answers Duke of Hamiltoun contra Laird of Clackmanan December 14. 1665. THe Duke of Hamiltoun as Collector of the Taxations 1633. charges the Laird of Clackmannan who Suspends and produces Discharges of the first three Terms It was alleadged these discharges could not liberat because they were granted by Iohn Scobie who was neither Sheriff Baillie nor Clerk nor does it appear that he had any Warrand or Commission nor does his Discharges mention any Commission or Warrand It was answered that by the Discharges produced it appears that Ormistoun and Humbie deputed for the Duke had granted Discharges to this Iohn Scobie and offer to prove that he was in use of uplifting the Taxations during the Terms themselves and was commonly repute as Collector thereof which must be sufficient post tantum tempus It was answered that that ground would not oblidge the Sheriff and so both the Heretor and Sheriff being free the King looseth his Right Yet the Lords sustained the Reason Monteith contra Mr. John Anderson December 15. 1665. IN a Reduction at the instance of Monteith against Anderson a Reason of payment being found relevant Mr. Iohn produced an Incident at the first Terme and a Diligence against Witnesses for proving the having of the Writs at the second Term. Which Incident the Lords sustained and would not restrict the Terms of probation in the Incident to Horning against the Witnesses and Caption but allowed four Terms and ordained the same to be shorter Mr. John Elies contra Keith Eodem Die THere was a Bond of 6000 merks granted by Wiseheart Parson of Leith and Keith his Spouse to Mr. Iohn Elies containing an oblidgement to Infeft him in an Annualrent out of any of their Lands with a Procuratorie The Wife had then the Lands of Benholm belonging to her Heretablie lying in the Mairns Mr. Iohn having Inhibite her Husband and her she sold the the Lands before the Inhibition was published at the head Burgh of the Mairns and having thereafter right to a Sum of 10000 merks for which she was Infeft under Reversion in other Lands an order of Redemption was used and the Money consigned Mr. Iohn Elies pursues a Declataror to hear and see it Found and Declared that the said Keith was oblidged to infeft him in an Annualrent out of her Lands which she had fraudulently Disponed contraire her obligation and therefore was now oblidged to Infeft him in other her Lands or to pay the Sum as damnage and interest and that therefore any other Lands or Rights belonging to her might be affected for his payment and particularly the Wodset now in question Compearance was made for the Defenders Grand-child who had a Right from her Grand-mother to the Wodset who alleadged First That the Bond bearing an oblidgement for Debt granted by the Wife stante matrimonio was null It was answered that albeit the Personal oblidgment were null yet the oblidgment to Infeft in an Annualrent granted by a Wife is valid either against her Heretage or Liferent and alleadged several Dicisions therefore It was answered that the Wife might do so if she had borrowed money for her own use or were principally bound to Infeft in an Annualrent but this oblidgment being in security of her Personal obligatigation with her Husband the principal obligation being null the accessory is also null The Lords repelled the alleadgeance and found the oblidgement to Infeft valid albeit accessory because Deeds and Obligations of Wyfes not to affect their Persons but Estates are valid and albeit she had not been bound for the principal Debt she might either have effectually disponed an Annualrent or which is all one oblidged her self to Infeft in an Annualrent out of her Heretage utile per inutile non vitiatur It was further alleadged that this Wodset or Sum disponed to her Oy could not be affected because her Oy was the youngest of many Oyes and did no wayes represent her The Lords sustained this Member of the Declarator also upon the Act of Parliament 1621. against Dispositions between Conjunct Persons without a cause onerous which they found might either be a ground to reduce the same or to declare the same to be affected as if the Right were in the Disponers Person Herein it was also lybelled That this Wodset albeit acquired after the Inhibition yet seing it lay in the same Shire where the Inhibition was published the Grand-child's Right were Reduceable upon the Inhibition The Lords thought so because Inhibitions being Personal Prohibitions reach both acquisita and acquirenda by the Person Inhibit in the Shires where it is published Laird Kilbocho contra Lady Kilbocho December 20. 1665. THE Lady Kilbocho by her Contract of Marriage being provided to certain Lands with this provision further that she should have the Liferent of all Lands Conquest during the Marriage whereupon she obtained a Decreet in the English time which being now under Reduction It was alleadged the Clause of Conquest could only give her the Lands Conquest with the Burden of the Annualrent of a Sum due by the Defunct to a Person from whom he bought the Land as being a part of the Price of the Land especially seing by a writ under the Defuncts hand he acknowledged that this Bond was granted for a part of the Price It was answered First That a Personal oblidgement cannot affect the Land neither can it affect the Ladies Person but if the Defunct had pleased he might have granted an Annualrent out of the Lands Conquest which then would have affected it which not being done his declaring that this Sum was a part of the price cannot be effectual nor can infer a Probation against his Wife in prejudice of her anterior Right Secondly This alleadgeance might be proponed as well against the Heir of Conquest as Liferenter thereof and yet it was never found that the Heir of Conquest behoved to accept the Land with the Burden of the Sums borrowed to buy it nor yet to relieve the Heir of Lyne thereof but on the contrair the Heir of Conquest has relief against the Heir of Lyne for Personal Debt though borrowed for acquiring the Right The Lords found that the Case was not alike with the Heirs of Conquest whom Defuncts do Infeft without
because she is then in potestate viri sub ejus tutelà So that she is truely Wife after the Contract of Marriage becoming publick by Proclamation and it occurring as a doubt amongst the Lords whether the Reduction ought to be sustained at the instance of the Husband only in so far as concerned his interest jure mariti so that the Right might be valid against the Ladie if she survived The Lords sustained the Reason simply at the instance of both and found it null as to both as being done without her Husbands consent Sir Laurence Oliphant contra Sir James Drummond Ianuary 6. 1666. THE Lord Rollâ— his Liferent Escheat being Gifted in Anno 1658. to Walter Stewart He Assigned the Gift and his own Debt the Ground hereof and the General Declarator obtained thereupon to Sir Iames Drumâ—â—mond in Anno 1665. A second Donatar now insists for special Declarator wherein compearance is made for Sir Iames Drummond who craved preference upon his first Gift and on his General Declarator It was answered for the Second Donatar that the first Gift was simulat and null by the Act of Parliament 1592. In so far as the Donatar suffered the Rebel to continue in Possession untill this day and never attained Possession of any part of the Lands nor did any furder diligence but only the General Declarator in Anno 1658. So that the Rebel having now possest by the space of 6 or 7. Years The presumption contained in the Act of Parliament that upon the said Possession the Gift is simulat and null takes place It was answered that there is no definit time in the Act of Parliament by which the Rebels Possession shall presume simulation and in this caâ—e there was but few Anni utilesâ— in so far as the Gift being in Anno 1658. Declarator was obtained that same year and in Anno 1659. Judicatures ceased and began not again till 1661. The Lords found that the Donatar suffering the Rebell to possesse 4 or 5. Years was sufficient to infer the presumption of simulation by the said Act of Parliament and therefore preferred the second Donatar Inter Eosdem Ianuary â— AT pronouncing of the former Interlocutor the first Donatar furder alleadged that the Presumption of Simulation by suffering the Rebel to possesse could not take place in this case First because the Donatar himself was a lawful Creditor of the Rebells whereupon there is a stronger Presumption that the Gift was to his behoove for his own satisfaction And the Act of Parliament can be only meant of Donatars who have no Interest but their Gift and are not Creditors Secondly The Lands were Apprized and the Donatar knew he would be excluded by the Appryzers The Lords repelled the first alleadgeance and found the presumptio juris in the Act of Parliament was stronger then the contrair presumption that the Donatar was Creditor because it might be his purpose to apply the Gift to the Rebells behove and not to take that way having other wayes of payment competent and also repelled the second alleadgeance unlesse it were alleadged that the Apprizer had been in possession so that there had not been 3 or 4. Years in which the Rebel had possest and that if the Appryzing had attained Possession at that time it would have excluded the Donatar but seing it was offered to be proven that the Rebel possest for 3 or 4. Years which was contrair to the alleadgeance of the Apprizers possession of the hail They adhered to their former Interlocutor Elizabeth Broun contra John Scot. Eodem die THere being an Infeftment feu granted of the Lands of Inglistoun as Principal and of the Lands of Fingland in warrandice thereof long agoe and Infeftment taken of both Principal and Warrandice Lands in on Seasine Registrat in the Registers Seasines Since the Year 1617. Thereafter the Warrandice Lands were disponed to the Earl of Traquair and he being publickly Infeft gave a subaltern Infeftment to his Vassal who assigned Iohn Scot to the Mails and Duties who having Arrested insisted to make forthcoming And likewise Elizabeth Broun having after the eviction of the Principal Lands arrested the Rents of the Warrandice Lands insists to make the same furthcoming to her It was alleadged that the Original Infeftment whereupon the said Elizabeth Brouns right is founded is a base Infeftment and as to the Warrandice Lands never cled with Possession and the Earl of Traquairs Right whereon Iohn Scots Right is founded is a publick Infeftment holden of the King which is alwayes preferred to a base Infeftment without consideration whether the publick Infeftment has attained Possession or no or how long but much more in this case where the publick Infeftment has attained Possession not only by year and day but many years And therefore is directly in the Case of the Act of Parliament 1540. cap. 105. Preferring publick Infeftments to prior base Infeftments not cled with Possession It was answered that base Infeftments are of themselves valid and before the said Act of Parliament the first Infeftment made always the best Right whether it was holden of the Disponer or of his Superiour but that Act of Parliament is correctory of the Common-Law and Feudal Custom which by the Act it self appears then to have been constant and is only altered by the Statute upon the presumption of Fraud which is clear both by the Title against double Fraudful alienations and by the Narrative that diverse persons after they have given privat State and Seasine to their Bairns or Friends do thereafter give for Causes onerous Infeftment to other persons and therefore such onerous posterior Infeftments if they attain Possession year and day are preferred to the said privat Infeftments but in this Case there is no Presumption of Simulation 2dly By several Decisions alleadged and produced it is clear that the Lords did prefer base Infeftment of Annualrent to posterior publick Infeftments of Propertie which interveened before the next Term so that the Infeftment of Annualrent could not attain Possession but if base Infeftments without Possession were unvalid Rights The Lords could not have found so 3dly The Lords have allowed Indirect and Interpretative Possession to be sufficient not only in the Case when Liferents are reserved that thereby the Liferenters Possession is the Feears though he never possest himself but even when Liferents are not reserved but that the base Infeftment is thereby excluded from Possession so base Infeftments granted to wyfes are preferred to posterior publick Infeftments though the Wyfes do not nor cannot possesse during the Husbands Life yet the Husbands possession is counted the Wifes possession and if a Person Infeft by a base Infeftment should pursue for Mails or Duties or Removing and were excluded by a prior Liferent constitute by the Pursuers Authorâ— though not reserved in his Right that very Action would be sufficient to validat the base Infeftment without Possession 4thly Whatever might have been alleadged before the Act of Parliament 1617. For
granted a Bond to Livingstouns his Wife bearing that in respect he thought it convenient that they should live a part he oblieged him to pay her a certain Sum of Money yearly for her aliment and oblieged him never to quarrel or recal that Obligation being charged thereupon he Suspends on this Reason that it was donatio inter virum uxorem and so he might recal the same and now offered to Cohabite with his Wife and aliment her according to his Means It was answered that he had Renunced that priviledge in so far as he had oblieged himself never to Recal or come against this obliegment It was answered that though he had expresly Renunced that priviledge yet the Renunciation was donatio inter virum uxorem and he might therefore Recal and come against both The Lords found the Reason of Suspension and Reply relevant in time coming but not for the bygone time during which the Wife had actually lived a part and alimented her self Laird of Dury contra The Relict and Daughter of umquhil Dury his Brother Eodem die DVry being Served Tutor of Law to his Brothers only Daughter pursues her Mother for delivery of her to be Educat by her Tutors It was alleadged that he was to succeed her and so could not have the Custody of her Person 2. That she was but nine years old and her Mother unmarried and so she was the fittest person to Educate her especially seing she was the only living Child of many and so not likely to be lively It was answered that the Tutor insisted not for the custody of his Pupil himself but condescended on several Persons with whom she might be Educate and alleadged that she having 40000. pounds of Provision out of the Family there was no Reason she should be keeped by her Mother and Disposed of at the pleasure of her Mothers Friends The Lords Decerned the Child to be delivered to Mr. Alexander Gibson one of the Clerks to be Educate with him but superceeded Execution of the Sentence till Whitsonday come a year that she might be delivered to her Fathers Friends before she was eleven years old and could have any thoughts of Marriage Watson contra Fleming Eodem die THere being an Infeftment of Annualrent granted out of Lands and Teinds and an Assignation to the Teind Duties in so far as extended to the Annualrent The Teinds and Lands were thereafter appryzed from the common Author before the Annualrenter had obtained Possession by his Real Right of the Annualrent but only by his Assignation to the Teind Duties It was alleadged by the Appryzer that the Assignation to the Teind Duties could give no longer Right then the property thereof remained in the Cedents Person which Ceasing by the Appryzing the Assignation ceased therewith as is ordinarly and unquestionably sustained in Assignations to Mails and Duties of Land It was answered that there was great difference betwixt Lands which require Infeftment to transmit the same and Teinds which require none but are conveyable by an Assignation for if this had been by an Assignation to the Tack of Teinds protanto it would have been unquestionably valid and therefore being an Assignation to the Teind Duties it is equivalent as a Disposition to Lands which would carry the Right of a Reversion though not exprest and though there were no more to Dispone but the Reversion only It was answered that if the Assignation had been to the Teinds That is to the Right or if it had been to the full Teind Duty in the Tack or of certain Lands then the case might have been dubious but being not of the Teind Duties of any particular Lands but out of the first and readiest of the Teinds of several Lands it was not habilis modus Which the Lords found Relevant Town of Glasgow contra Town of Dumbarton Eodem die THere being mutual Declarators one at the Instance of the Town of Dumbarton for Declaring that they had Right by their Infeftments that all ships coming within Clyde should make their Entries at Dumbarton and that they should pay Anchorage for all Ships Anchoring in the River of Clyde being within their Infeftment even from the Water of Leven to the head of Lochluny within which bounds is the ordinar station of New-wark Potterig and Inchgrein and above which no Vessel above 24. Tuns goes up Clyde and likewise for the Measurage whereby all Ships casting Anchor there took the Firlots of Dumbarton and measured with payed 8. pennies of the boll therefore and Weightage which is a Duty for their Weights and also Tunage being so much out of every Tun of the Burden of each Ship And on the other part Glasgow pursues Declarator of their Liberty to Traffick freely in the River of Clyde and to make Entry at their Burgh and to be free of any such burden at Dumbarton The Lords before answer having ordained either Party to adduce such Writs and Witnesses as they will make use of in the Cause for instructing these Burdens the Possession thereof Interruptions of the same and Liberty therefrom which all being adduced Dumbarton produced their original Charter Erecting them in a free Burgh by King Alexander in Anno 1221. and another Charter also by King Alexander repeating their Priviledges of Burgh as free as Edinburgh or any other Burgh within the Kingdom cum custumiis teloniis and also a Charter in Anno 1609. Ratifying the former Charter and particularly expressing all these Burdens in question in the novodamus thereof and also produced their Entry Books bearing the Merchants of Glasgow to have Entred their Ships at Dumbarton and to have taken the measures of Dumbarton for measuring their Salt and to have payed the Duties thereof and obliging themselves to make use of no others these Voyages begining at the year 1616. and continuing till the year 1657. in the beginning whereof there was ordinarly one Ship every year and thereafter several Ships every year Glasgow did also produce their ancient Infeftments by King Alexander mentioning a prior Infeftment by King William Erecting them into a free Burgh with their Books of Entries of several Ships for divers years with an Interlocutor of the Lords in Anno 1609. wherein Dumbarton having charged for all the Duties now in question Glasgow Suspended and Dumton insisted for none of these in question but only for Entries and the Lords found that the Merchants of Glasgow might either Enter at Glasgow Dumbarton or any other free Burgh where the Kings Customers were and might break bulk there with a Contract between Dumbarton and Glasgow in Anno 1590. oblieging them to concur against unfree-men and not to break bulk upon the River but in their Towns and in case of any difference six of each Town to meet at Ranfrew and decide the same and thereupon alleadged that they being a free Burgh and having the precedence of Dumbarton both in Parliament and so acknowledged by the said Contract and enjoying equal and free
first granted by the Abbot of Dumfermling and the Feu of the Land thereafter there is a Decreet in Anno 1610. pronounced by the Chancellor as Lord of the Regality decerning all the Feuars to pay the five and twenty Curn of all Grains that they brought to the Miln and a greater of that they Abstracted The Feuar of the Miln pursuing for Abstracted Multures and for instructing the Quota producing this Decreet It was alleadged for the Defenders that they offered them to prove that past memory of man at least 40. years bygone they have been constantly in use to pay five Bolls of Bear in satisfaction of all Multure and so can be lyable for no further they having prescribed their liberty from any further 2ly That no respect ought to be had to the Decreet in so far as it Decerns a greater quantity for the Corns Abstracted then for these grinded which is without all Reason especially seing this is but a Burn Miln and not sufficient for the Thirle 3ly They offer them to prove that the Miln was insufficient the years pursued for and no ways able to serve them and the rest of the Thirle as being but a Burn-miln dry in Summer and not having Water enough in Winter It was answered for the Pursuer to the first that they offered them to prove they were in Possession of the Multure Lybelled within these 40. years at least that any lesser Duty was accepted by a particular Paction for a time only To the second opponed the Decreet standing against which there has neither been Suspension nor Reduction nor any ground for the same for its like the coming to the Miln frees them from a greater quantity for abstraction And seing the Quota is but the five and twenty Curn far below the ordinar Thirle Multures it was very reasonable that the samine being abaited to a less quantity they should pay a greater if they came not As to the insufficiency of the Miln it was answered non Relevat unless it were through the default of the Pursuer or his Millers for they being astricted to a Burn Miln what defect is therein without the Pursuers fault cannot louse the Restriction The Lords found the Replys Relevant unless the Defenders condescended upon an insufficiency through the Pursuers fault Here occurred to the Lords whether the Feuars could by Possession prescrive their liberty as to a lesser Multure seing the Possession of a part of the Multure was sufficient to exclude Prescription as to the whole some thought if the Multure had been a certain Quota in the Infeftment of the Miln Possession also not of the hail would hindred Prescription of any part but if the Infeftment of the Miln was only with the Multures used and wont and that the speciality was but by a Decreet as the use and wont that in that case use and wont might change Others thought not but in respect the Pursuer insisted not on that Point but offered to prove Possession conform to the Decâ—eet within these 40. years The Lords decided not that Point Here also it was alleadged that by an Act of the Court of Dumfermling the Defender consenting at least present it was Enacted that such of the Defenders as could not be served might go to other Milns The Lords found this alleadgence only Relevant that it was by consent of the Pursuer or his Authors but left it to be the Defendersâ— after production to qualifie what way the consent was given but that his presence and silence was not enough The Collector of the Vaccand Stipends contra Parochioners of Mayboll and Girvane Feb. 10. 1666. THe Collector of the Vaccand Stipend having charged the Heretors of Mayboll and Girvane for the Stipend due by them the year 1663. They Suspend and produce the Ministers Discharges who served these years and alleadged they made payment bona fide before this Charge It was answered they were in mala fide by the Act of Parliament of the last Session of Parliament declaring the places of Ministers Entred since 1649. to be Vacant if they had not obtained Presentation and Collation conform to the Act. It was answered that the foresaid Act was not simple but conditional if they had not obtained Presentation and Collation and there was nothing oblieging the Parochioners to enquire whether they had done that which by the Law they were oblieged to do but seing there was no Charge against them by the Collector of the Vaccand Stipends and that the Patron or Ordinar did not present another but suffered the then Incumbents to preach all that year they were in bona fide to think that they might pay them for the time they Served It was answered there was a Decreet produced against the same Ministers for the year 1662. and therefore they could have no Right to the year 1663. The Lords found the Reason of Suspension Relevant and proven notwithstanding of the Answer because the Decreet was not against the Heretors and was but obtained in 1664. after they had made payment of the year 1663. The Minister of North-Leith contra Merchants of Edinburgh Eodem die THe Minister of North-leith having pursued some Merchants of Edinburgh Importers of Herring of dry Fish Killing and Ling at Leith and New-haven to pay twenty shilling of the Last of Herring and the twentieth part of the Killing and Ling. It being alleadged that such a burthen could not be allowable because the Teinds was taken where the Fish was taken 2ly That it could only reach the Parochioners of North-leith not the Merchants of Edinburgh And 3ly That they had frequently Traded free of such a Burden The Lords having ordained the Pursuer to adduce Evidences by Writ or Witnesses what Possession they had and the Defenders what liberty they had and having heard the Testimonies of the Witnesses with an old Decreet for the same particulars but not against the Merchants of Edinbâ—rgh nor for dry Fish they found 40. years Possession proven of the said Burthen and therefore Decerned The Laird of Wedderburn contra Wardlaw Feb. 13. 1666. WEdderburn pursues a Reduction of a Feu granted to Wardlaw ob non solutum canonem by vertue of a Clause irritant in the Infeftment The Defender offered to purge by payment at the Bar and alleadged several Decisions that it hath been so allowed It was answered that was only the case of a Reduction upon the Act of Parliament declaring Feus null for not payment of the Feu Dutie but where there is an express Clause irritant in an Infeftment that cannot be purgeable at the Bar else such Clauses should be useless seing without these de jure the Feu Duties behoved to be payed at the Bar or otherwise the Feu annulled The Lords found that there was a difference betwixt a Clause irritant and upon the Act of Parliament and so would not admit of purging at the Bar simply unless the Defender condescended upon a Reasonable Cause ad purgà ndam moram and
Ratification should have the force of a publick Law and not be derogat by the Act salvo jure It was answered for the Defender that in Prescriptione longissimi temporis non requiritur tempus utile sed continuum In consideration whereof the time of the said Presciption is made so long and therefore captivity absence reipublicae causa want of Jurisdiction or the like are not respected 2dly Thirlstone valebat agere because he might have Reduced the Queens Infeftment of Fee or declared his own Right of Fee to be effectual after her death And as to the late Act of Parliament albeit it does exclude the Act salvo jure yet that is parte inaudita and upon the impetration of a Party suo periculo but the Parliament have never assumed power to take away the privat Rights of Subjects except upon another or better Right otherwayes no man in Scotland can call any thing his own but a Confirmation in Parliament with such a clause surreptitiously obtained shall take away the Unquestionable Right of any other It was answered for the Pursuer that the Parliament had not incroached upon the just Right of any other but had only restored the Pursuer to his Grand Fathers Right and seing there is no question but that Right was prior and better than the Queens and the Defenders and was in no hazard but as to the point of Prescription that being a rigorous Statute the Parliament might well excuse the Pursuer for not pursuing the King and Queen but rather patiently to abide their pleasure till they were denuded in favours of privat Parties It was answered for the Defender that all our privat Rights especially of Property are founded upon positive Law and there is none stronger then the Right of Prescription and therefore if the Parliament can take that away as to one Person and not generally they may annul the Right of any privat Person whatsomever The Lords were unwilling to decide in the whole points of the Debate but did in the first place consider the Right of the Parties without the Act of Parliament in favours of the Queen or the late Act in favours of the Earl and in the point of Right they repelled the Defense of Prescription in respect of the Duply of Swintouns interruption which they found to accresce to the Pursuer cujus jure utebatur and found that before the Queens death the Prescription could not run in respect of the Queens Infeftment of Liâ—erent consented to by Thirlstoun which would exclude him from any Action for attaining Possession and they found that he was not oblidged to use Declarator or Reduction which might be competent in the Cases of Distress or the Rights of Wifes or any other Right which yet do alwayes exclude Prescription till Action may be founded thereupon that may attain Possession Thomas Millar contra Howison Iune 5. 1666. THomas Millar having pursued the Tennents of one Bailie his Debitor for making forthcoming their Duties arrested in their hands Compears Howison and produces a Disposition and Infeftments from Baillie of the Tenements prior to the Arrestment and craves to be preferred It was answered for Millar that Howisons Disposition was null as being in fraudem Creditorum against the Act of Parliament being granted after the contracting of Millars Debt and albeit the narrative of the Disposition bears causes onerous yet he offered to prove by Howisons Oath that it was not for causes onerous at least equivalent to the worth of the Land which was found relevant and Howison having deponed that his Disposition was granted for a Sum of 300. merks addebted to himself and the Sum of 1600. merks adebted to Iohn Burd for which he was Cautioner for Baillie the Disponer At the advysing of the Cause It was alleadged that the Disposition nor the Disponers Oath could not sufficiently instruct the cause onerous seing the Oath did not bear that there was a price made but only that there was no Reversion nor promise of Redemption granted â— yet the Disposition was truely in Trust which ofttimes is tacit as being the meaning of the Parties and is not expresse by Reversion or Back-bond so that if Baillie or this Arrester would pay these Sums Howison could have no further Interest It was answered that the points referred to Howisons Oath were denyed and that he was not oblidged to keep the Bonds but might destroy them as being satisfied The Lords found that as to Howisons own Bond he needed not instruct the same but as to Burds Bond they found that he ought to instruct it by some adminicles further then his own Oath that the Debt was and was payed by him in respect his Oath bore not a price made and that he was Vncle to Baillie the Disponer Mr. Alexander Nisbit contra Eodem die MR. Alexander Nisbit as Assigney to a Sum pursues the Debitor for payment compears the Arrester who had arrested it in the Debitors hand for a Debt due to him by the Cedent and whereupon he had obtained Decreet before the Sheriff of Berwick It was alleadged for the Assigney that the Decreet was null because the principal Debitor was not called in the Decreet for making forthcoming or at least at that time he lived not within that Jurisdiction It was answered that albeit the Arrester had no more but his naked Arrestment he might compear for his Interest and crave preference to the Assigney whose Intimation was posterior It was answered he could not be pursued hoc ordineâ— because he whose Money was arrested was not yet called viz. The Assigneys Cedent who is the Arresters principal Debitor who if he were called might alleadge that the Debt whereupon the Arrestment proceeded was satisfied which was not competent to the Assigney being jus tertij to him The Lords found the Arrester might compear in this Process without calling his Debitor but they found that the Assigney might either alleadge payment in name of his Cedent or if he craved a time to intimate to his Cedent they would superceed to extract till that time that the Cedent might defend himself Earl of Cassils contra Sir Andrew Agnew Iune 6. 1666. THe Earl of Cassils as Superior of some Lands holden of him by Iohn Gardener obtained Declarator of his Liferent Escheat and that a Gift of the said Liferent granted by the said Earl to the said Iohn was null in so far as it contained a Clause irritant that if Iohn Gardener should give any Right of the Lands to any of the name of Agnew the Gift should be null ipso facto whereupon in anno 1650. The Earl obtained Declarator of the Clause irritant by Iohn Gardeners giving Right to Sir Andrew Agnew and now insists for the Mails and Duties since that Declarator It was alleadged that the said Earl had accepted the Feu Dutie of several Years since the said Declarator and thereby had tacitly past from the Declarator and could not seek both the Feu-dutie and also the whole
Mails and Duties by the Escheat It was answered for the Earl that having both Rights in his Person he might poynd the Ground for the Feu-dutie and his Donatar might pursue for the Maills and Duties 2dly His acceptance of the Feu-dutie albeit it could not consist with the Maills and Duties yet it would only extend to these Years that the Feu-dutie was accepted and to no others The Lords found the acceptance of the Feu dutie Relevant only for these Years for which it was received but it occurred to some of the Lords that if it were alleadged there were three consecutive Discharges of the Feu-dutie that these as they would presum all bygone Feu-dutie payed so they would extend to the Maills and Duties for all years preceeding the Discharges Therefore the Defender was ordained to condescend if so many Discharges were and that this point might be debated William Crawfoord contra Andrew Duncan June 7. 1666. WIlliam Crawfoord as Assigney to a Bond of 200. merks granted by Andrew Duncan pursues for payment It was alleadged absolvitor because the Bond was null having no Date at all data est de substantialibus It was answered that the Pursuer offered him to prove by the Defenders Oath that it was his true Subscription which was sufficient and the Date is only substantial when Improbation is alleadged or any Right that might take away the Writ if it were of such a Date as a prior Assignation or general Discharge The Lords found the Reply Relevant with this provision that the Defender might adject what quality he thought fit as these mentioned or that it was done in Minority or not delivered c. but they found him not oblidged to depone simpliciter upon the verity of the subscription and to prove such qualities as they had done before in a Holograph Writ wanting Date the last Session in the Process betwixt the Earl of Kinghorn and Sir James Murray Elizabeth Anderson contra George Cunninghame Iune 9. 1666. THis Cause betwixt Elizabeth Anderson and George Cunninghame anent a Legacie lest by the said George his Wife to the said Elizabeth Anderson being debated the 7. of February last The Lords then found that George by confirming his Wifes Testament in giving up his Debts to exhaust the free Gear and abate the Legacie did not hinder himself to adduce further Debt for a further abatement but now it being further alleadged that immediately before the Confirmation the Bond he would now add was registrat and he charged therewith he could not be ignorant thereof at the time of the Confirmation The Lords altered their Interlocutor and found that having scienter omitted that Debâ— he could not bring it in to the Legatars prejudice This was stopt by Bill the next day Colin Hay contra Magistrates of Elgin Iune 12. 1666. COlin Hay pursues the Magistrats of Elgin for the Debt of a Rebel escaping out of the Prison of Elgin whom he had arrested there It was alleadged for the Defenders absolvitor because the Rebel was not incarcerat by the Pursuer upon his Caption but being incarcerat by another was only arrested in the Tolbooth by the Pursuer and all that is produced to instruct the same is only the Execution of a Messenger who arrested the Rebel It was answered there was no difference whether the Rebel had been incarcerat upon the Pursuers Caption or had been arrested for in both Cases the Magistrats are lyable and the keeper of the Tolbooth ought to have a Book for certifying the Magistrats of all incarcerations and Arrests in Prison and if they be neglective therein it is on their perills and yet here the Messenger not only Arrested but the Executions bore that he intimat the same to the Provost and Baillies Which the Lords found sufficient and Repelled the Defense and found no difference betwixt Incarceration and Arresting in Prison Sinclar of Bryme Supplicant Eodem die SInclar of Bryme gave in a Bill bearing that he had obtained Suspension of all Execution and specially of Appryzing which he presented at the time of the Appryzing and yet the Messenger and Writer went on and Appryzed and therefore craved that the Appryzing might be stopt at the Registers and Seals The Lords refused to grant the desire of the Bill without there had been a Summons against the Appryzer past the Signet but would not upon a Bill cite Parties out of the Town having no dependence on the House nor annull or hinder any pretended Right they had without citing of them but resolved to take in consideration the contempt of the Messenger and Writer at the discussing of the Cause Sir Hendrie Hoom contra Tennents of Kello and Sir Alexander Hoom. Iune 13. 1666. JOhn Hoom Younger of Kello being Forefaulted in the Parliament 1661. For being with the English Armie against the Kings Armie at Worchester 1651. Sir Alexander Hoom obtained Gift of the Forefaultry and thereupon came in possession Sir Hendrie Hoom having Appryzed the Lands of Kello from the said Iohn Hoom and his Father Alexander Hoom upon their Bond and having charged the Superiout in 1653. to Infeft him obtained Decreet of Maills and Duties against the Tennents which being Suspended upon double Poynding and Sir Hendrie and Sir Alexander competing It was answered for Sir Alexander the Donatar that he had possest three years and offered him to prove that the Rebel had possest five years before therefore craved the benefit of a possessorie judgement 2dly That he was preferable in poynt of Right in so far as he offered him to prove that the Rebel was five years in possession before the Forefaulture which gives the King and his Donatar compleat Right by the Act of Parliament It was answered for the Creditor that he ought to be preferred because there being no retour upon the Act of Parliament finding by the Inquest that the Rebel was five years in possession as Heretable Possessor he can neither have the benefit of a possessory Judgement nor stop the Creditors Diligence who found themselves upon the Appryzing against the Father who stood publickly Infeft and there is no sufficient Right in the Rebels Person alleadged nor produced It was answered that the five years possession might be proven by Witnesses by way of Exception 2dly It was offered to be proven by an Inquest conform to the Act of Parliament The Lords found no benefit of a Possessory Iudgement competent neither would they sustain the five years possession by way of Defense but decerned superceeding Extract while the 15. of July within which time if the Donatar obtained the retour of an Inquest he should be heard thereupon The Donatar further alleadged seperatim that the Rebel was Infeft by the Father which was sufficient to prefer him without an Inquest It was answered non relevat unless he had either been publickly Infeft or by base Infeftment cled with possession before the Superior was charged upon the Creditors Appryzing which being equivalent to a publick Infeftment
is preferable to the Rebels base Infeftment It was answered that the King or his Donatar needed no possession nor can be prejudged for want of Diligence The Lords found the Creditors alleadgeance relevant Iack contra Mowat Eodem die THE Lords found that Iack having obtained Decreet as Assigney by his Father it was relevant for the Debitor to alleadge and prove by the Assigneys Oath that the Assignation was without a cause onerous and by the Cedents Oath that the Debt was payed before Intimation Sir Henrie Hoom contra Sir Alexander Hoom. Iune 14. 1666. IN the Cause debated yesterday betwixt Sir Henrie Hoom and Sir Alexander Hoom. It was further alleadged for Sir Alexander Hoom that the Rebel had not only five years possession but was Infeft by an Infeftment holden of his Father which was cled with Possession before the Appryzers charge against the Superior in so far as the Infeftment bore a reservation of the Fathers Liferent and so the Fathers Possession was the Rebells Possession and was sufficient to validat the base Infeftment seing there could be no other Possession attained during his Fathers lifetime or at least there was reserved to the Father a yearly Rent and the Rebel gave his Father a Warrand in Writ to continue his Possession of such of the Lands for the same The Lords ordained the Donatar to condescend whether the Rebells Infeftment proceeded upon his Contract of Marriage And he declaring that it was by a distinct Right thereafter The Lords found the Possession of the Father not relevant it being betwixt Conjunct Persons privat and suspect For they thought if possession by such Reservation betwixt Father and Son were sufficient the Creditors would hardly be secure Dumbar contra Lord Duffus Eodem die THE Lord Duffus having obtained a Decreet of removing against Dumbar his Tennent and having execute the same by Letters of Possession The Tennents raises Suspension and Reduction of the Decreet and a Summons of Ejection the Reason of Reduction was that the Sheriff had done wrong in repelling and not expressing in the Decreet a relevant Defense 2dly That the Tennent could not be decerned to remove because he was already removed irregularly by Ejection and ought not to be put to defend in the removing till he were repossest spoliatus ante omnia est restituendus which he instructed by an Instrument taken in the hand of the Clerk of Court and where it was replyed before the Sheriff that he had not found Caution for the violent Profits He answered that he needed not seing the Pursuer himself was in possession by the Ejection It was answered that the Lord Duffus offered him to prove that all he did was to put in some Corns and Plenishing in an ouâ— house long after the warning of the Tennent that had taken the Roum and that he continued to possesse all the rest of the house and the whole Land by his Cattel till he was Legally removed and neither the Family nor Goods of the new Tennent came in till then It was answered that the alleadgeance was contrair to the Tennents Lybel of Ejection bearing that he was dispossest both from the house and Lands The Lords considering that the Tennents was only positive in Ejection from the House and had once acknowledged that he was not Ejected from the Land they Assoâ—lzed from the Reduction of the Decreet of Removing but they sustained the Action of Ejection and Repelled the Defenses as contrair to the Lybell Reserving to themselves the modification of the violent profits and the other party to debate whether after the Decreet of Removing the Tennent should have re-possession or only the profits or damnages George Tailzor contra Iames Kniter Junâ— 15. 1666. GEorge Tailzor having Appryzed some Lands in Perth set a Tack of a part of it to Iames Kniter who thereafter Appryzed the same Tailzor now pursues a Removing against Kniter who alleadged absolvitor because he had Appryzed the Tenement within year and day of the Pursuer and so had Conjunct Right with him It was answered that he could not invert his Masters Possession having taken Tack from him The Defender answered it was no inversion seing the Pursuer by Act of Parliament had Right to a part but not to the whole and the Defender did not take Assignation to any new Debt but to an old Debt due to his Father The Lords sustained the Defense he offering the expenses of the Composition and Appryzing to the first Appryzer conform to the Act of Parliament Alexander Stevinson contra Laird of Hermishills Eodem die ALexander Stevinson as Assigney by his Father pursues Hermishills for payment of a Bond who alleadged absolvitor because the Defender as Heir to his Father had right to a Bond due by the Pursuers Father before the Assignation after which the Assignation was a Deed infraudem Creditorum and so null It was answered non relevat unless the Cedent had been Bankrupt or at least insolvendâ— The Lords Repelled the Defense in respect of the Answer The Defender furder alleadged Compensation upon the said Bond which was relevantâ— against the Pursuer both as Heir to and as Assigney by his Father It was answered non relevat against the Pursuer as Executor but for his fourth part being one of four Executors 2dly The Defenders Father was Tutor to the Pursuer nondum reddidit rationes The Lords found that Compensation being equivalent to a discharge taking away the Debt ipso facto it might be proponed against any of the Executors in solidum but in regard the Tutors accompts were depending the Lords sisted his Process till he Tutors Compts proceeded Sir Robert Sinclar contra Laird of Houstoun Eodem die SIr Robert Sinclar pursues a Poynding of the Ground of the Lands of Leni upon an old Annualrent of 20. merks Constitute above a 100. years agoe Houstoun alleadged absolvitor First Because he brooked these Lands past Prescription peaceably without any pursuit upon this Annualrent 2dly Because this Annualrent was base and never yet cled with Possession and his Infeftment was publick It was answered to both that the Pursuer produced a Decreet of Poynding the Ground in Anno 1608. Since which the Pursuers Minority being deduced it is not 40. years Likeas there is produced a Precept of Poynding for the said Annualrent It was answered that the Decreet in Anno 1608. was only against the Tennents and Possessors and so is null the â—eretor not being called It was answered First That albeit the Decreet had been defective for not calling the Master yet it was sufficient to interrupt Prescription 2dly It was sufficient to give possession and to validat a base Infeftment by a civil possession for as natural possession by the Tennents payment would have been sufficient though without their Masters knowledge or consent So a Decreet yea a citation against them is sufficient for a possession as being equivalent to a natural possession and albeit the Proprietar could not be
the Lords thought would operat but had not the occasion here to decide it Iohn Scot contra Sir Robert Montgomery Iuly 12. 1666. JOHN Scot pursues Sir Robert Montgomery as vitious Intrometter with the Goods and Gear of Sir Iames Scot of Rossie to pay a Debt due by Sir Iames to the Pursuer The Defender alleadged absolvitor because any Goods he Intrometted with were Disponed to him for Onerous Causes by the Defunct and delivered conform to an Instrument of Possession produced It was answered that the Disposition bears Horse Neat Insight Plenishing and all other Goods and Gear which cannot be extended to any thing of another kind nor of greater value as current Money Jewels Silver-plate Chains c. which never past by such general Clauses unless it be specially Disponed It was answered that albeit there had been such Moveables and the Defender had Intrometted therewith though another having a better Right might Evict the same yet the Defender had a probable Ground to Intromet which is sufficient to purge this Odious passive Title The Lords found the Disposition and Delivery Relevant to purge the Vitiosity Normand Livingstoun contra Lady Glenagies Iuly 13. 1666. NOrmand Livingstoun having appryzed the Lands of Glenagies pursues the Tennents for Mails and Duties wherein the Lady compeared aud alleadged that she ought to be preferred because she is Infeft in a Liferent in the Lands by her Contract of Marriage It was Replyed that the Lady and her Husband for all Right that either of them had had given a Right to their Cautioners to uplist the Mails and Duties of the Lands in question for payment of Debts and this Debt particularly whereon this Appryzer proceeds with power also to the Cautioners to Dispone any part of the Lands for payment of the Debts which the Lady Ratified Judicially and which now Excludes her from hindring any of these Creditors to get payment It was answered for the Lady first That this Right was but a Factory or Commission and so Expyred by the Lairds Death 2ly It was only in favours of the Cautioners for their Relief but the Creditors had no Interest to alleadge thereupon 3ly The Cautioners were never Distrest and it was a mistake being to them as Creditors in the Sum not being so in effect The Lords having considered the Commission and that it buir not only the Lady to consent but for all her Right to grant Commission and that not only it was in favours of the Cautioners in case of Distress but also in favours of the Creditors bearing to be for payment of the Creditors Therefore they found the same Relevant against the Lady to exclude her Infeftment ay and while the Debts were payed But this occurred to the Lords that if the Lady could condescend that by the Creditors or Cautioners fault in not making use of this Commission the Laird was suffered to continue in Possession so that if they had used Diligence the Debts would have been payed in whole or in part and the Ladies Liferent disburdened pro tanto they would find the same Relevant Patrick Keith contra Laird Lesmore Troup and others Iuly 14. 1666. PATRICK Keith having Right of Wodset granted by the Earl of Marischal pursues a Reduction against the Laird of Lesmore of a posterior Right granted by the Earl to him Which Right was Disponed to Muiresk who was Infeft and Dispon'd to Troup who is present Heretor who being all Called and Litiscontestation made and the Cause concluded at the Advising thereof it was alleadged for Troup that Muiresk was dead and there could be no advising of the Cause till some Representing him were Called for as in initio there could be no Process against Troup the present Heretor till Muiresk his Author were Called So neither can there be any procedor now till some Representing him be Called It was answered the Pursuer declares that he Insists against Lesmores Right principaliter against which only the Reasons are Sustained and as for Muiresk and Troups Rights they will fall in consequentiamâ— The Lords found that the Process behoved to be Transferred against Muiresks appearand Heir before it could be advised For as the declaring that the Pursuer Insisted principaliter against the first Right would not have been Relevant ab initio seing the Law allows all mediat Authors to be Called that they may defend the Right whether and Reasons be Libelled against their Rights or their Authors which comes in the place of the old Custom of sisting Process until the Defenders Warrand were Called and Discust So every Author has alike Interest to Object against the Reasons although Libelled principaliter against the first Authors Right But the Lords declared that seing the Defender made this unnecessar delay they would be more favourable in drawing back the Reduction ad litem motam aut contestatam Sharp contra Glen Eodem die IN a Competition betwixt two Compryzers It was alleadged that the Pursuer who Insisted for the Mails and Duties his Appryzing was extinct by Intromission within the Legal Which was offered to be proven by his Pursuers Author his Oath It was answered that his Authors Oath could not be Received against a Singular Successor standing now Infeft for as the Cedents Oath is not Receivable against the Assigney in personal Rights much less is the Authors Oath against the singular Successor in real Rights It was answered that before this Pursuers Right res fuit litigiosa in so far as the Pursuers Author having before pursued Mails and Duties in that Process the Defender offered to prove by his Oath that the Appryzing was satisfyed whereupon litiscontestation was made whereby res fuit litigiosa and no posterior Right could prejudge the Defender Which the Lords found Relevant and ordained the Authors Oath to be taken Fountain and Brown contra Maxuell of Nethergate Eodem die BRown as Heir to Mr. Richard Brown who was Heir to Thomas Brown pursued for exhibition and delivery of a Wodset Right granted in favours of Thomas Wherein the Lords having sustained Witnesses to be admitted to prove not only the having of the Writs since the intenting of the Cause but the having them before and the fraudful putting them away which ordinarly is only probable by Writ or Oath unless evidences of Fraud be condescended on in respect the matter was ancient and the Pursuer had long lived in England now at the advising of the Cause severall of the Witnesses were found to Depone that the Defender before the intenting of the Cause not only had such a Wodset Right but was dealing to get the same conveyed in his own Person which importing Fraud The Lords would not absolutely decern him to exhibite but found that he behoved docere quomodo desijt possedere or otherwayes produce and therefore ordained him to compear that he might be interrogat and condescend upon the particular Writs Thomas Ogilvy contra Lord Gray Iuly 17. 1666. THomas Ogilvie pursues the Lord Gray as behaving himself as
fit and is not conveenable for his Mis-authorizing or Omission that infers only that he is only Curator honorarius The Defender did furder alleadged that the Father had furder Authorized in so far as he Subscribed the said Bond and so consented that his Son should Subscribe and neither was the Deed in rem suâ—m but in rem creditoâ—is The Lords found the Reasons of Reduction Relevant and Repelled the Defenses and albeit many thought that the Father Subscribing with the Son was sufficient to Authorize yet that it was not sufficient being Caution for himself in rem suam but did not proceed to cause the Parties condescend how near Sir George was to Majority and what was his way of living Earl Cassils contra Tennents of Dalmortoun and John Whitefoord of Blarquhan Decem 11 1666 AN Action of Double Poynding at the Instance of the Tennents of Balmortoun against the Earl of Cassils on the one part and Iohn Whitefoord of Blarquhan on the other both claiming Right to their Multures It was alleadged for the Earl of Cassils that the Lands in question being holden Ward of him is now in his hands by reason of the Ward of Knockdaw his Vassal he had now Right to their Multures and they ought to come to the Miln of his Barony whereof these Lands were Pertinent and shew his Infeftment containing the Lands of Dalmortoun per expressum It was alleadged for Iohn Whitefoord that he ought to be preferred because that Kennedy of Blarquhan the Earls Vassal both of the Lands of Dalmortoun and Blarquhan had Disponed to him the Lands of Blarquhan and Miln of Sklintoch with astricted Multures used and wont at which time Blarquhan caused his Tennents of Dalmortoun to come to the said Miln of Sklintoch whereby the Thirlage was not only Constitute of the Lands of Blarquhan but of Dalmortoun It was answered for the Earl First That the Thirlage of Dalmortoun could not be Constitute by the said Clause because the Lands of Dalmortoun being no part of that Barony whereof the Miln of Sklintoch is the Miln But a distinct Tenement holden of a distinct Superiour Such a general Clause could never have Constitute a Thirlage unless the Lands had been exprest 2ly Albeit the Servitude had been Constitute never so clearly by the Vassal Yet if it was without the Superiours consent it could not prejudge him by Ward or Non-entry It was answered for Iohn Whitefoord to the First That the Clause was sufficient to Constitute the Thirlage and if it wrought not that Effect it was of no Effect because the hail Lands of the Barony were Disponed with the Miln and neither needed nor could be Thirled And therefore the Clause of Thirlage behoved to be meaned of some other Lands 2ly Vassals may lawfully Constitute Servitudes without consent of the Superiour which are not Evacuat by Ward or Non-entry 3ly It is offered to be proven that the Earl consented to the Right of the â—â—lture in so far as the Lands of Dalmortoun being Appryzed from Blarquhan by Iohn Gilmour he assigned the Appryzing to Iohn Whitefoord who Assigned or Disponed the same to Kilkerren in which Asignation there was an express Reservation of the Multurs of Dalmortoun to the Miln of Sklintoch upon which Infeftment the Earl received Kilkerren in these Lands who is Author to the present Vassal The Lords found the Clause aforesaid in Iohn Whitefords Charter not to infer a Servitude of the Lands of Dalmortoun not being therein exprest and holden of another Superiour Nor no Decreets nor Enrolments of Court alleadged to astruct the Servitude And found also the second Reason Relevant viz. That the Earl as Superiour not having consented was not prejudged by any Deed of the Vassals But as to the third Point the Lords found that the Reservation in Kilkerrens Right unless it were per expressum contained in the Charter Subscribed by the Earl of Cassils could not infer his consent albeit the Charter related to a Disposition containing that Clause but if it were alleadged to be exprest in the Charter they Ordained before answer the Charter to be produced that they might consider the terms of the Reservation Sir Henry Home contra Creditors of Kello and Sir Alexander Home Decemb 12 1666 SIR Henry Home having appryzed the Lands of Kello before the year 1652. pursues the Tennents for Mails and Duties Compearance is made for either Creditors appryzers who alleadged they ought to come in with him pari passu by the late Act between Creditor and Debitor because the appryzings being since the year 1652. was within a year of his appryzings being effectual by Infeftment or Charge It was answered that the Act of Parliament was only in relation to Compryzings both being since the year 1652. and the Pursuers appryzing being led before falls not within the same It was answered that the Act of Parliament in that Clause thereof in the beginning mentions expresly that Compryzings led since 1652. shall come in pari passu with other appryzings but doth not express whether these other appryzings are since 1652 but in that is general and the Reason of the Law is also general and extensive to this Case It was answered that the posterior part of that same Clause clears that point both in relation to the appryzings in whose favours and against which the Law is introduced viz. that the Clause is only meant the appryzings led since 1652 shall come in pari passu which must both comprehend these that come in and these with whom they come in The Lords Repelled the alleadgence quoad other Compryzings and found that their Compryzings could not come in with the Pursuer he having appryzed before the year 1652. and Charged before their appryzing Ianet Thomson contra Stevinson Decem 13 1666 JAnet Thomson pursues a Reduction of a Disposition made by her to Stevinson upon Minority and Lesion and also upon this Reason that the Disposition was done within some few dayes after her Pupillarity and it being of Land ought not to have been done without authority of a Judge especially seing she had no Curators The Defender answered to the first there was no Lesion because the Disposition bears a sum equivalent to the value of the Land To the second non Relevat The pursuer answered that the Subscribing and acknowledging the receipt of Money by a Minor cannot prove it self but the Minor is Les'd in Subscribing the same The Defender Duplyed that he offered to prove by Witnesses that the price was truely payed and profitably Employed The Lords found not the second Reason of Reduction Relevant the authority of a Judge being only required to the alienation of Lands made by Tutors of their Pupils Lands Anna Fairly contra Creditors of Sir William Dick. December 14 1666 ANna Fairly alleadging that she obtained an Assignation from umquhil Mr. Alexander Dick as Factor for his Father in satisfaction of a Sum due to her by his Father pursues for delivery of the assignation
The Tower of Babel falling upon the Roof made it Ruinous It was answered That was an accident without the Pursuers fault and the Tennent ought to pursue these whose Tenement it was that fell The Lords found the Reason was not Relevant to Liberate from the Mail unless the Suspender had abstained to Possesse but found it Relevant to abate the Duties in so far as he was Damnified Oliphant contra Hamiltoun of Kilpoty Eodem die WILLIAM OLIPHANT having obtained a Decreet for Poynding of the Ground against Hamiltoun He Suspends on this Reason that he was neither Decerned as Heir nor Possessor but as appearand Heir to the Heretor and was never Charged to Enter Heir The Lords Repelled the Reason and found this Action being real was competent against the appear and Heir without a Charge William Oliphant contra Hamiltoun Eodem die OLiphant pursuing the foresaid Poinding of the Ground upon an Annualrent It was alleadged Absolvitor from the bygones before the Pursuers Right because his author was Debitor to the Defender in a liquid sum equivalent It was answered that the Pursuer was singular Successor and no personal Debt of his Authors could infer Compensation of a real Right against him The Lords found that the bygain Annualrents were moveable and compensable with any liquid Debt of the Pursuers Authors contra Brand. Ianuary 3. 1667. Chapman having left his Pack in custody with Brand In Dundee about ten or twelve dayes after Brand opened the Pack and made use of the Ware The Chapman now pursues him for a Spuilzie who alleadged Absolvitor because the Pack was put in his hands for security of a Debt due by the Pack-man and he being informed that the Pack-man would not rerurn did by warrand of a Baillie in Dundee cause four of the Neighbours Inventar and Price the Ware It was answered non relevat for though the Pack had been impignorat the Defender could not appryze it summarly but behoved to take a Sentence to Poind the same The Lords Repelled the Defense It was further alleadged that there could be no Spuilzie nor Oath in litem of the Pursuer because there was no Violence It was answered that the Oath in litem is Competent whether it were a Spuilzie or a breach of Trust actione deposâ—â— It was answered that the Oath in litem being granted mainly because Parties injured by breach of such Trusts cannot be put to prove by VVitnesses that which is taken from them none being oblieged to make patent his Pack or other privat Goods to VVitnesses yet where there is another clear way to prove the quantities viz the Oathes of the four Persons who opened the Pack there is no reason to put it to the Pursuers Oath especially seing their Inventar is not the eight part of what he claimes The Lords admîtted the Pursuers Oath in litem reserving their own Modification with liberty to the Defender if he thought fit to produce what of the Ware he had and to produce these four Persons that the Pack-man may Depone in their presence Earl of Sutherland contra Earls of Errol and Marischal Eodem die THere being a Decreet of Parliament ranking the Nobility whereby Earl of Sutherland was put after the Earls of Errol and Marischal In which Decreet there is a Reservation to any to be heard before the Judge Ordinar upon production of more ancient Evidents whereupon the Earl of Sutherland pursues Reduction of the Decreet of Ranking containing an Improbation of all VVrits Patents and other Evidents granted to the Defenders or their Predecessors whereby they are Constitute or Designed Earls they did produce the Decreet of Ranking and the Earl of Errols Retour whereupon the Pursuer craved Certification contra non producta after all the Terms were run The Defenders alleadged no Certification because they had produced sufficiently by producing the Decreet of Ranking and their Retoures and the Pursuer had only produced his own Retoure which was since the Decreet of Ranking so that the Decreet of Ranking was sufficient to exclude all his Titles produced It was answered the Retour being the Sentence of a Court Serving this Earl as Heir to his Fore-Grandsire Grandsires Grandsires Fore-Grandsires Goodsire who is Designed Earl by King Alexander the second It was sufficient in initio litis Likeas he did formerly produce the Original Evidents and which was now in the Clerks hands and might have been seen by the Defenders if they pleased The Lords found the Retoures not sufficient alone and Ordained the rest to be Reproduced and seen by the Defenders Smeatoun contra Crawfoord Eodem die UMquhilâ— Patrick Smeatoun granted a Disposition to Crawfoord his VVife and her Heirs of a Tenement of Land whereupon nothing followed during her Lifetime her younger Brothre Iames Crawfoord Served himself Heir-General to her and obtained a Decreet of Implement against Iohn Smeaton as Heir to his Father and having used Horning thereon obtained Adjudication against Smeatoun and his Superiour and thereupon was Infeft which Right was Disponed by him with consent of William Crawfoord elder Brother to the VVife The said Iohn Smeatoun Dispones the same Tenement to Alexandor Smeatoun and he is Infeft and thereupon pursues a Reduction of Iames Crawfoords Retour and of all that followed thereupon in consequence on this Reason that the Disposition to the VVife belonged not to Iames Crawfoord her younger Brother who was Heir of Line but to William Crawfoord her elder Brother as Heir of Conquest and so the Service was null following thereupon and the Pursuer being first Infeft from Smeatoun he hath the only Right because any Infeftment to William the Heir of Conquest will be posterior It was answered that it was jus tertij to the Pursuer whether the Heir of Line was Served or Infeft or the Heir of Conquest likeas the Heir of Conquest did concur and had consented to the Disposition The Lords found not the Defenses Relevant but considering the Case as Calumnious seing it was but of late cleared by Decisions whether the Heirs of Line had right to Dispositions without Infeftment they did superceed to give answer but ordained the Defender to give in what Evidences he could give of the onerous cause of his Disposition Paul Henrison contra Laird of Ludquharn and Captain Seatoun Ianuary 4. 1667. THe Debate betwixt Paul Henrison and Ludquharn was this day heard again and it was alleadged that the Kings Proclamation declared War against the King of Denmark and his Subjects Ita est the Owners of the Ship are Subjects to the King of Denmark because it is notour that this Isle is a part of the Kingdom of Denmark and till of late was in the same condition as any other of his Territories and albeit the Duke of Holstein have now an Interest by Possession or Infeodation that alters not their subjection to the Crown of Denmark but the same is still presumed unless they will positively prove that the same is alter'd and the Duke of
Holstein constitute Soveraign therein and they liberat from his Jurisdiction Tolls and Imposts for War It was answered that this Stranger was not obliged to Dispute the Right or Investiture of the Duke of Holstein but it was sufficient for him to say that before this War they did own him as their Prince for simple acknowledgement of a Superiour or Investitur from him doe not make Subjects or comprehend them within the Wars and Quarrels of their Superiours yea though there were a Tribute or Jurisdiction due to that Superiour yet if the Prince do enjoy the Priviledges of making War and Peace he is not a simple Subject but in so far a Soveraign Prince as some of the Princess of the Empyre hold of the Emperour paying him Tribute and there lyes an appeal to the Soveraign Imperial Court yet because they can make War and Peace they are not necessarly involved within the Emperours Quarrels So the Duke of Holstein being a Soveraign Prince and possessing this Island so as to make use of the Subjects thereof in Peace and War therefore is not comprehended in the King of Denmarks Quarrel nor is he or his Subjects in the Sense of the Proclamation The Lords adhered to their former Interlocutor upon the 22 of December when this Case was Debated and Repelled the Alleadgences proponed for Ludquhurn unless it were alleadged that the Inhabitants of this Island do contribute with the King of Denmark in this War against the King and they so alleadging The Lords Ordained the Ship and Goods to be valued and delivered to the Stranger upon Caution or otherwise to be Sequestrat in some Merchants hands that the Ship might be made use of for Fraught and the Goods sold and not made unprofitable and according to the course of Admirality the Lords Ordained Ludquharn to find Caution for Cost Skaith and Damnage by the delay of that alleadgence Mr. Iames Cheap contra Mr. Iohn Philip. Ian. 5. 1667. THe Lords having Considered the Testimonies of the Witnesses adduced before answer betwixt Mr. Iames Cheap and Mr. Iohn Philip upon the Debate mentioned the 19. of December last found the same to prove and to qualifie the Minute they being the Witnesses insert above exception and it but a Minute wherein particulars are not at all nor fully set down which will not be drawn in example as to any full and extended Writs either for altering any Clause therein exprest or for adding thereunto any omitted Laird of Polwart contra Laird of Halyburtoun Ianu. 16. 1667. THe Laird of Polwart as Heir to his Father pursues Hallyburtoun for payment of a Ticket of 250 merks due by the Defender to the Pursuers Father and for a composition payed by the Pursuers Father for receiving him in certain Lands Disponed to him by the Defender wherein he was oblieged to obtain him Infeft The Defender alleadged absolvitor from the payment of the Ticket because it must be presumed to be payed on these grounds first Since the Ticket the Defender sold Land to the Pursuer so that it must be presumed it was Counted and included in the price and albeit that presumption were not sufficient alone it is fortified by these two viz. That it is twenty eight years since the Bond was granted and no word ever heard thereof and that umquhil Polwart in his Testament gave up an Inventar of the Debts owing to him wherein no mention is of the Bond. It was answered that a Writ could not be taken away by Witnesses proving payment much less by presumptions and as to the Taciturnity which is the main one umquhil Polwart dyed about seven years after the Bond was granted and the Pursuer was Minor most of the time since It was answered that Presumptions have been oftimes sufficient to take away VVrits as was found in the case of the Lady Trabroun The Lords Found the Presumptions not Relevant and that they were nothing so strong as these of the Lady Trabroun which were thus Trabroun granted a Bond of 5000 merks to Alexander Peebles which was taken away on these Presumptions that thereafter Trabroun had granted a Bond of 10000 merks to the said Mr. Alexander who was his Advocat with whom he had many Affairs and therefore it was to be presumed the last Bond included the first especially seing Trabroun decaying in his Fortune Mr. Alexander apdryzed his Lands upon the last Bond and not upon the first which he might have done with the same Expence and that he never moved any thing thereupon all his Life by the space of twenty six years and in the Inventar of his Testament he made no mention of it and that his Executors being Examined ex officio did acknowledge they had found it amongst old cast Papers The Defender furder alleadged absolvitor from the Composition because he was never required by Polwart to procure the Infeftment from the Earl of Hume which he could easily have done gratis he being his Uncle especially seing there was no Term in his Obligation to perform and therefore Interpellatio tantum inducit moram The Lords found the Defense Relevant and Assoilzied from the Composition albeit it was alleadged that Polwart for several years had not Componed that the Composition was much less then a years Rent and that Halyburtoun was not in good Terms with the Earl of Hume which was not respected seing Hslyburtoun was not required Reid contra Salmond Eodem die REid pursues Barbara Salmond and Iames Telzâ—fer her Husband for a debt due by her Father as behaving her self as Heir by Possessing a House wherein her Father died Infeft and by Setting another House of his to Tennents It was answered that Iames Telzifer was Tennent in the House Possest by him before the Defuncts Death and might Possess per tacitam relocationem Neither could he safely leave the House till he had given it over to some having Right VVhich the Lords found Relevant 2ly It was alleadged that the Defunct had Disponed the same Tenement to the defenders Son his Oye which disposition albeit it attained not Infeftment yet it was a sufficient Title for Mails and Duties and to continue Possession and to purge the vitious Title of behaving as Heir Which the Lords found also Relevant Barbara Chapman contra Iohn White Ianu. 18. 1667. BArbara Chapman pursues a Reduction ex capite inhibitionis viz. That Calander being Charged to enter Heir to his Father who was the Pursuers Debitor and upon the Charge Inhibition was used against him after which he Disponed to the Defenders Father It was alleadged by the Defender that he is minor non tenetur placitare de haereditate paterna It was answered that Calander his Fathers Author was never Infeft Secondly That the Defenders Father did Dispone the Land to his second Son by both which it could not be called haereditas paterna The Lords Sustained the Defense notwithstanding of the Reply and found no Process till the Defenders majority and that he was not oblieged to
Dispute whether his Fathers Authors were Infeft or whether his Father had disponed or not until his Majority that he might seek out his Evidences and defend himself Reid contra Ianu. 19. 1667. IN a Process betwixt Reid and whereof the Title was a Service of the Pursuer as Heir deduced before the Bailzie of Regality of Spenzie It was alleadged by the Defender that this Title was not sufficient seing the Service was not retoured It was answered that the Service being within the Regality and of a Person dwelling there neither needed nor used to be Retoured in respect the Service it self was in Record in the Bailzies Books It was answered that albeit a special Service of Lands within the Regality needed not be Retoured in the Kings Chancellary because there was no Precept thence to issue but the Service within the Regality was sufficient that thereupon the Precepts of the Lord of the Regality might proceed against the Superiour within the Regality who was Infeft but in a general Service which may be before any Judge whether the Heir Reside in his Jurisdiction or not there is no difference betwixt a Regality and any other Court but all must be Retoured in the Chancellary It was answered that the Regality having their own Chapel and Chancellary were not oblieged to Retour it in the Kings Chancellary Which the Lords found Relevant and sustained the Service Isobel Findlason contra Lord Cowper Ianu. 22. 1667. ELphingstoun of Selmes having given a Precept to Isobel Findlason and direct to the Lord Cowper that he should pay to the said Isobel a Sum owing by Selmes to her and receive Selmes Bond from her upon the foot of which Precept the Lord Cowper directs another Precept to Iames Gilmore to pay the said sum the VVoman not being payed pursues both the Lord Cowper and Iames Gilmore for payment It was alleadged for Iames Gilmore absolvitor because he had not accepted the Precept neither was there any ground alleadged for which he was oblieged to accept or pay the Lord Cowpers Precept Which the Lords found Relevant It was alleadged for the Lord Cowper that the giving of the Precept should not obliege him seing it mentioned not value received or any other Cause and therefore resolved into a meer desire It was answered that the giving of the Precept was an acceptance of Selmes Precept and behoved at least to import a Donation to be made effectual by the Drawer of the Precept or otherwise an Intercession or Expromission for Selmes The Lords sustained the Process and found the Lord Cowper lyable by the Precept to pay in case of none acceptance especially seing it was consequent to Selmes Precept direct to Cowper Mr. Iohn Mair contra Steuart of Shambelly Eodem die MR. Iohn Mair Minister of Traquair having obtained Decreet against Shambellie and the Parochioners to pay him 545. merks Expended for Reparation of the Manse and to meet and Stent themselves for that Effect upon which Decreet he took Shambellie with Caption whereupon he gave him a Bond of fourscore pounds for his part Shambellie now Suspends the Bond on this Reason that albeit it bear borrowed Money he offers to prove by the Chargers Oath that it was granted for his part of that Stent and that his proportion thereof casting the Sum according to the Valuation of the Paroch would not exceed fourty merks and that he granted this Bond for fear of Imprisonment It was answered the Reason was not Relevant to take away the Suspenders Bond being major sciens prudens and there was here no justus metus because the Caption was a lawful Diligence so that the giving of the Bond was a Transaction of the Parties which is a strong Obligation It was answered that the Suspender when he was taken at his House was sick and unable to travel yet the Messenger would carry him away and being at the Tolbooth gave the Bond rather than in that Case to go to Prison which was an irregular force and a just cause of fear but this addition was not proponed peremptory The Lords Repelled the Reason of suspension unless the said addition were also instructed instanter otherways it could only be reserved by Reduction ex metus causa Sir Henry Hoom. contra Tennents of Kello and Sir Alexander Hoom. Janu. 24. 1667. SIR Henry Hoom having Appryzed the Lands of Kello from Henry and Iohn Hooms and being Infeft pursues the Tennents for Mails and Duties Compearance is made for Sir Alexander Hoom Donatar to the Forefaultor of the said Iohn Hoom of Kello who alleadged that the Forefault Person the time of the Doom of Forefaultor was in Possession of the Lands in question in whose place the Donatar now succeeds and by the Act of Parliament 1584. It is Statuted that where the forefault Person was in Possession the time of the Forefaulture albeit not by the space of five years which would Constitute a Right to him that the Donatar must be put in Possession and continue five years in Possession that in the mean time he may search and seek after the Rebels Rights It was answered First That this part of the Statute is only in case the Rebel had Tacks or Temporary Rights which neither is nor can be alleadged in this Case Secondly The five years Possession must be reckoned from the Doom of Forefaulture after which the Kings Officers or Donatar might have attained Possession and if they did not their neglect cannot prejudge others Ita est there are five years since the Forefaulture and the Rents are Extant being sequestred It was answered that the Act Expresses not only in Case of Tacks but also in Possession and that the five years must be after the Possession began and not the Forefaulture The Lords found the alleadgance Relevant that the Rebel was in Possession and preferred the Donatar to the five years Rent after the date of the Forefaulture It was further alleadged that the Pursuers Right being but an Appryzing the Donatar would instantly satisfie the same at the Bar. It was answered non Relevat to retain by way of Exception but the Donatar behoved to use an Order and pursue a Declarator It was answered that in Appryzings an Order upon 24 hours Requisition was sufficient there being no further Solemnity required then that the Appryzer might come to receive his Money The Lords found that the Appryzing might be summarly satisfied hoc ordine Earl of Argile contra George Campbel Eodem die THE Earl of Argile pursues George Campbel to remove from certrin Lands who alleadged absolvitor because the Warning was null not being used at the right Paroch Kirk where Divine Service at that time was accustomed It was answered non Relevat unless it were alleadged that the other Kirk were Erected by Parliament or Commission thereof and that thereby the Old Paroch was supprest and divided 2ly Though that were alleadged it ought to be Repelled because it is offered to be proven that all VVarnings and Inhibitions
Sub-tennent to the principal Tennent The Lords Debate the same amongst themselves some being of opinion that the Sub-tennents payment bona fide before the Term was sufficient because he was only obliged to the principal Tennent and he might have a Tack for a less Duty then he or for an elusory Duty which if he payed and were Discharged he was not conveenable and oft times the Sub-tennents Term was before the principal Tennents Yet the Lords found that payment made bona fide by the Sub-tennent to the principal Tennent was not Relevant and that because the Master of the Ground has Action not only against the Tennent but also against the Sub-tennent or any who enjoyed the Fruits of his Ground and may conveen them personally for his Rent as well as really he has an Hypothick in the Fruits neither can the Sub-tennent prejudge the Master of the Ground of that Obligation and Action by paying before the Term otherways he might pay the whole Terms of the Tack at the very entry thereof and so Evacuat the Heretors Interest as to the Sub-tennent yeaâ— though the Sub-tennents Tack-duty were less then the principal Tennents it would not Exclude the Heretor pursuing him as Possessor for the whole but only give him Regress for Warrandice against the principal Tacks-man but the Term being come if the Heretor Arrested nor pursued not the Sub-tacksman he might impute it to himself and the Sub-tacks-man might justly presume that the principal Tacks-man had payed and so might pay him bona fide Countess of Hume contra Tennents of Alcambus and Mr. Rodger Hoge Eodem die THe Countess of Hume being provided by her Contract of Marriage to the Lands of Alcambus Pyperlaw and Windilaw extended to 24 husband-Husband-Lands she gets a Charter upon her Contract bearing For Implement thereof to Dispone to her the Lands and Barony of Alcambus c. with a Seasine taken at Alcambus She thereupon pursues the Tennents Compearance is made for Mr. Roger Hog and other Creditors who bought these Lands from Wauchtoun who had bought them from the Earl of Hume and alleadged Absolvitor from the Mails and Duties of the Miln of Alcambus because my Lady by her Contract of Marriage was not provided to the Miln neither was she Infeft therein per expressum and Milns do not pass as Pertinents without a special Infeftment 2ly Absolvitor for the Rents of Pyperlaw and Windilaw because my Ladies Seasineâ— bears Only Inâ—eftment in the Lands of Alcambus and mentions not these Lands which are particularly in the Contract The Pursuer answered to the first That by her Charter she was Infeft in the Lands of Alcambus with the Milns with other Lands mentioned therein c. 2ly That Alcambus bore by her Charter to be a Barony which is nomen universitatis and carries Milns albeit not exprest To the second It is offered to be proven that Alcambus is the common known Designation and is commonly known to comprehend Pyperlaw and Windilaw as Parts and Pertinents thereof and that they are all holden of one Superiour and lyes contigue so that they are naturally unite and without any further union in a Barony or Tenement and a Seasine upon any place of them serves for all It was answered for the Defender to the first Point That Alcambus was not a Barony neither doth the Designation thereof by the Earl of Hume make it a Barony unless it were instructed 2ly The adding of Milns in the Charter if the Lady had not Right thereto by the Contract is a Donation by a Husband and is Revocked by his Disposition of the Lands of Alcambus and Miln thereof to the Laird of Wauchtoun the Defenders Author The Pursuer answered that the Charter was but an Explication of the meaning of the Parties that by the Contract the intention was to Dispone the Miln especially seing the Miln hath no Sucken but these Husband-Lands of Alcambus which are Disponed without any Restâ—iction of the Multure so that the Miln would be of little consequence without the Thirâ—e The Lords having compared the Contract and Charter found that by the Contract the Lady could not have Right to the Miln 〈◊〉 she would be free of the Multures and found that the Charter did not only bear for Implement of the Contract but also for love and favour and so found the Adjection of the Miln to be a donation Revocked Nor had they respect to the Designation of the Lands as a Barony but they found it Relevanâ— if the Lady should â—rove that it was a Barony to carry the Right of the Miâ—n or that in my Lords Infeftments there was no express menâ—â—â—n of the Miln but that my Lady had them in the same Terms my Lord had them They found also that Reply Relevant that Alcambus was the Name of the whole Lands to extend the Sea sine to the Lands of Pypâ—rlaw and Windilaw though not named and that they might be yet Parts and Pertinents of the Tenement under one Common Name Andrew Smeatoun contra Tabbert Feb. 7. 1667. ANdrew Smeatoun being Infeft in an Annulrent out of a Tenement in the Canongate pursues a Poinding of the Ground and produces his own Infeftment and his Authors but not the original Infeftment of the Annualrent It was alleadged no Process until the original Infeftment were produced constituting the Annualrent especially seing the Pursuit is for all bygones since the date of the Authors Infeftment so that neither the Pursuer nor his immediat Author hath been in Possession 2ly If need beis it was offered to be proven that before the Rights produced the Authors were denuded It was answered that the Pursuer hath produced sufficiently and that his Right was cled with Possession in the Person of his mediat Author before the years in question To the second this Pursuer hath the benefit of a possessory judgement by his Infeftment cled with Possession and is not obliged to Dispute whether his Author were denuded or not unless it were in a Reduction The Lords sustained the Pursuers Title unless the Defender produced a Right anterior thereto in whiâ—h case they ordained the Parties to be heard thereupon and so inclined not to exclude the Pursuer upon the alleadgeance of a possâ—ssory judgement but that Point came not fully to be debated It is certain that a possessory judgement is not relevant in favours of a Proprietar against an Annualrenter to put him to Reduce because an Annualrent is debitum fundi but whether an Annualrenter possessing seven years could exâ—â—ude a Proprietar until he Reduce had not been decided but in this case the Lords inclined to the Negative Mr. Alexander Foulis and Lord Collingtoun contra Tennents of Innertyle and La. Collingtoun Feb. 9. 1667. SIr Iames Foulis of Collingtoun being in treaty of Marriage with Dam Margaret Erskin Lady Tarbet She did dispone 36 Chalders of Victual of her Joynture in the North to a confident Person that she might make use thereof for the benefit of
her Children and Disponed 36 Chalders of her Liferent of the Lands of Innertyle to Cuninghame of Woodhal who transferred the same to Mr. Alexander Fâ—ulis of Ratho who granted a Back-bond bearing That his Name was made use of for the use and behove of Collingtoun and his Lady and that to this effect that the profit of the Liferent should be applyed to the Aliment of their Families joyntly and therefore obliged himself to Dispone in their favours and de presenti did Dispone The next day after this Disposition there is a Contract of Marriage betwixt Collingtoun and the Lady wherein there is this Clause that Colâ—ingtoun Renunces his jus mariti to the Lady's Liferent or any other Right he might have thereto by the subsequent Marriage and takes his hazard for what he may have any other way Mr. Alexander pursues the Tennents upon his Disposition Compearance is made for the Lady who alleadges he hath no interestâ— because he is denuded by the Back-bond Compearance is made for Collingtoun who declared he concurred with Ratho and consented he should have the Mails and Duties to the effect contained in the Back-bond and that he would not make further use of the Re-disposition contained therein It was answered for the Lady that Collingtouns concourse could not sustain this Process because Ratho was already de presenit denuded in favours of Collingtoun and her Likeas Collingtoun was denuded by his Contract of Marriage whereby he renunces his jus maâ—iti and all other Right he can have to the Liferent Laâ—ds in favours of the Lady and so renunces the Clause of the Back-bond in so far as it is in his favours It was answered that the Contract of Marriage could not derogat to the Back-bond unless the Back-bond had been per expressum Discharged or Renunced therein because albeit the Contract of Marriage be a day posterior to the Back-bond yet both are parts of one Treaty of Marriage and so in the same condition as if they were in one Writ so that a posterior Clause in general Terms cannot take away a prior special Clause of this moment yea though it were in a Contract leâ—s favourable then a Contract of Marriage which is ubeâ—â—mae fidei general Clauses are not extended above what is specially exprest and the jus mariti being exprest and the Back-bond not exprest it cannot be presumed that they changed their minds in one night to Renunce the benefit of the Back-bond but this Conveyance was made of purpose because Collingtoun being in Debt if the Right were Constitute in a third Party and only to their behove as an aliment the Creditors could not reach the same but it were the greatest Cheat imaginable to conceive that the general Clause subsequent should evacuat the whole design and take away the provision of the Back-bond Neither doth the general Clause renunce all Right that Collingtoun had or might have to the Liferent-lands any manner of way but only all Right he could have by the subsequent Marriage any manner of way Ita est that he doth not claim Right jure mariti nor by the subsequent Marriage but by the Paction contained in the Back-bond and it is most certain that the jus Mariti which is most peculiar to this Nation doth not comprehend all Rights a Husband hath in relation to the Person or Means of his Wife but only the Right of moveable Goods or Sums which without any Paction whatsoever way they come in her Person belong ipso facto to him not by Paction but by Law and that jure mariti or by vertue of the Marriage so thaâ— albeit he could not have Right even by the Paction except that he were Husband or that Marriage had followed yet his Paction is his Title and not the Marriage which is but tacita conditio or causa sine qua non so that Discharging or Renuncing of the jus mariti or the benefit by the Marriage if it were posterior to the Contract of Marriage would not take away the Contract and being in the Contract cannot take away the prior â—action and Disposition granted by the Wife in favours of a Husband or a third Party to his behove It was answered for the Lady that she adheres to the clear express Terms of the Contract of Marriage which Renunces not only the jus mariti but all other Right to the liferent-Liferent-lands by the subsequent Marriage which being a several Writ and a Day posterior most necessâ—rly take away the Back-bond without considering the meaning of Parties quia in claris non est loâ—us conjecturis at least the meaning can be no otherways cleared but by Writ or the Ladies Oath otherwise the most clear and solemn Contract shall be arbitrary and may be taken away by presumptions or conjectures and no man shall be secure of any Right 2ly Verba sumendasunt cum effeâ—â—u iâ— this did not take away the Back-bond it had no effect for the Lâ—dy before the Contract was denuded of her whole Liferent both of Inneâ—tyle and in the North so that there was no need to Renunce the jus mariti or Right by the Marriage to the Liferent-lands It was further alleadged by the Lady that albeit the Renunciation could not reach the Back-bond in so far as it is a Paction so that it yet stood effectal for application of the Liferent right for the aliment of the Lady and Collingtouns Family joyntly yet thereby they both had a Communion and Society equally and the Husband could pretend no Right in the administration or manadgement but only jure mariti in so far as he is Husband and therefore he acknowledging that he has renunced his jus mariti cannot pretend to the administration of this aliment but it must remain intirely to the Lady The Lords found that the Clausâ— in the Contract of Marriage did not derogat to the Back-bond and as to the Point of administration they considâ—red it to consist in two things in uplifting the Rent and manadging the Liferent-lands and in the application thereof to the use of the Family and manadging the Affairs of the Family As to the first they found thâ—â— both Parties having entrusted Ratho the Trust of manadgement of the Rent could not be taken from him without Collingtouns consent and as for the manadgement of the Family it self they found that it neither was nor could be reâ—unâ—ed by the Husband in favours of the Wife and that any such Paction though it had been clear and express taking the Power and Government of the Family from the Husband and â—â—ating it in the Wife is contra bonos moresâ— and void aâ—d that the jus maritiâ— as it is properly taken in our Law for the Husbands interest to the Wifes Moveables being Renunced cannot be understood to reâ—â—h to the Renunciation of the Husbands power to Rule his Wife and Family and to administrat the aliment thereof Elizabeth Ramsay contra Ker of Westnisbet Eodem die ELizabeth Ramsay having pursued an adjudication of
certain-Lands upon the Renunciation of Barbara Nisbet insists upon that Member of the Summons against the Superiour Iohn Ker that he should receive and Infeft her who alleadged no Process unless the Pursuer show the Right of the former Vassal whose Heir had Renunced for the Pursuer can be in no better case then the appearand Heir who if she were craving to be Entred behoved to Instruct her Predecessors Right The Pursuer answered that her adjudication against the Defender as Superiour is in common form which hath been ever sustained upon good ground because a Creditor has no Interest to have his Debitors Rights when he is seeking adjudication which must be his Title to demand the Rights but the Superiour is obliged by Law to reserve the Adjudger without Instructing any Right further then the adjudication which hath been frequently so found in the case of Appryzers The Lords having considered the case and paralel with that of Appryzers found this difference that Superiours got a years Rent for receiving Appryzers but not of Adjudgers yet in respect of the common custom of these Summons they â—epelled the defence and Decerned the Superiour to receive the Pursuer salvo jure â—ujuslibet suo Dam Geibs Moncreiff contra Tennents of Neutoun and William Yeoman Eodem die DAm Geils Moncrief being Served to a Terce of the Lands of Newtoun pursues the Tennents for a third part of the Duties who having Deponed that they payed so much for Stock and Teind joyntly for Yeards Parks and the whole Lands possest by them Compeared William Yeoman as now having Right to the Fee who alleadged no Terce of the Teinds because they fell not under Terce 2ly No Terce of the yeards because as the Mannor-place belonged to the Fiar without division so behoved the closs Gairdens Orchards yards c. The Lords found the Pursuer to have no Right to the Teind by her Terce unless there had been an Infeftment of the Teinds by Erection and therefore laid by the fourth part for the Teind and found that the years in question being possest by the Tennents and there being nothing alleadged nor instructed that there was a Tower Fortalice or Mannor-place having a Garden or Orchard for pleasure rather then profite they found no necessity to decide what Interest a Tercer would have in such but these being set by appearance as Grass Yeards they Repelled the alleadgeance Earl Tullibardine contra Murray of Ocâ—tertyre Feb. 12. 1667. IN the Declarator at the Instance of Tullibardine against Murray of Ochtertyre Dispute the first of â—ebruary last It was now further alleadged for Ochertyre that Clauses Irritant in Wodsets not being illegal or null by our Law albeit the Lords do sometimes Restrict the Effect thereof ad bonum aequum to the just Interest of the Parties against whom the same is conceived they do never proceed any furâ—her But here Ochertyre is content to make up to the Earl his just Interest by paying a greater price for the Land then Sir Iohn Drummond and whereas it was alleadged that this was not receivable now after the Earl had made bargain with Sir Iohn Drummond Ochetyre now offered to prove that before any Bargain was agreed in Word or Writ he did make offer to the Earl of fourscore ten thousand merks which he offered to prove by Witnesses above all exception who communed betwixt them viz. the Lord â—tormount and the Laird of Kylar It was answered that the Pursuers adhered to the Lords former Interlocutor whereby they have restored the Earl against the Clause irritant he satisfying Ochtertyre his whole Interest cum omni causae the same Point being then alleadged and Dispute aâ—d both Parties being judicially called and having declared their minds concerning any such offer whereby the Earl upon his hoâ—our declared that before the agreement with Sir Iohn Drummond Ochtertyre offered not so much by 4000 merks 2ly Any such alleadgence albeit it were competent it were only probable sâ—ripto vel juramento the Earl now having Disponed to Sir Iohn Drummond so that the Effect would be to draw him into double Dispositions which is of great consequence both as to his Honour and Interest especially seing that Ochtertyre did not take an Instrument upon the Offer It was answered for Ochtertyre that the former Interlocutor cannot exclude him especially seing he did only then alleadge that he made a general offer of as much for the Land as Sir Iohn Drummond would give therefore but now he offers to prove that he offered 90000 merks which is 2000 merks more then Sir John's price The Lords found that they would only restrict the Clause irritant to the Effect that the granter of the Wodset might suffer no detriment which they found to be Effectual if the Wodsetter offered as great or a greater sum then the other buyer before any Bargain agreed between them either in Word or Writ â—ut found it not probable by Witnesses but by Writ or the Earls Oath and found that a general offer was not sufficient unless it had Exprest a particuâ—ar sum Lord Iustice Clerk contra Rentoun of Lambertoun Feb. 13. 1667. THe Lord Rentoun Justice Clerk putsues Rentoun of Lambertoun as heir to his Father for Compt and Payment of his Rents Woods and Planting intrometted with by Lambertoun in the beginning of the troubles It was alleadged for the Defender absolvitor because by the Act of Indemnity the Leidges are secured as to all things done by any pretended Authority for the time Ita est The pursuer being sequestred the Defenders Father medled by Warrand from the Committee of Estates and made Compt to them as appears by his Compt producedâ— which is ballanced by the Committee 2ly The said accompt bears That Lambertoun made Faith that it was a true accompt nothing omitted in prejudice of the publick after which he could not be questioned either for any thing in the accompt or for any thing omitted and not charged The Pursuer answered that the Act of Indemnity contains an express exception of all Persons that medled with any publick Moneys and had not made Compt therefore that they should yet be comptable 2ly The accompt produced contains two accompts one in anno 1641 another in anno 1643. The first is not approven by the Committee but adjusted by three persons who were no members of the Committee and whose Warrand is not Instructed and the second compt is only approven wherein the Charge is a Rest in the Tennents hands of the former accompt and the Oath is only adjected to the second accompt which cannot Import that Lambertoun ommitted nothing in the first accompt but only that he ommitted nothing in the second and his Oath is only to the best of his knowledge and can import no more than the Oath of an Executor upon the Inventar which excludes not the Probation of super Intromission It was answered for the Defender that the second accompt being the rest of the first accompt the approbation
in before but superceeded Execution in the Removing as to the House and Mains Possest be Milntoun till Martimass that in the mean time he might Insist in his Reprobators as he would be Served Countesse of Carnwath contra Earl of Carnwath February 22. 1667. THe Countess of Carnwath Insists in her Action of Poinding the ground It was alleadged for the Defender that the Countess Seasing was null not being Registrate conform to the Act of Parliament It was answered that nullity cannot be proponed either be the Granter of the Infeftment or any Representing him or by any person who is obliged to acknowledge the Infeftments but the Earl is such a Person that albeit he Brooks by a Disposition from his Father yet his Infeftment containes this Express Provision that his Father at any time during his Life may Dispone the Lands or any Part thereof and grant Infeftments Tacks or Annualrents thereof so that this being unquestionably an Infeftment he cannot quarrel the same upon the not Registration but if his Father had granted an Obliegment to Infeft the Defender could not have opposed the same much more the Infeftment being Expede It was answered that the Provision did not contain an Obligation upon the Defender to Dispone Ratifie or do any Deed but left only a Power to his Father to Burden the Lands which can only be understood being done legitimo modo and therefore the Infeftment wanting the solemnity of Registration is in the same Case as if there were no Infeftment and so is null The Lords Repelled the Defense and found the Seasine valide as to the Defender in respect of the foresaid Provision in his Infeftment Earl of Southesk contra Lady Earls-hall Eodem die THe Earl of Southesk being Infeft in certain Lands upon the Water of Eden and the Salmond Fishing peruse Declarator that Earls-hall hath no Right thereto The Pursuer produces an Infeftment in Anno 1558. in which after the Land is Disponed there followes a Clause una cum Salmonum in piscationibus in aquâ de Eden with a novo damus it was alleadged for the Defender that he hath the â—like Declarator against the Pursuer which he repeats by way of Defense and produces an infeftment of the same year of God bearing in the dispositive Clause una cum Privilegio piscandi in aqua de Eden solito consuet and alleadges that by vertue thereof he hath good Right to Fish in the Water and that he had been in Immemorial Possession by vertue thereof It was answered First That this Clause cannot carry Salmond Fishing which is inter Regalia and must be specially Disponed 2ly The Defenders Right though in the same year of God is yet some Moneths Posterior to the Pursuers and as to the Defenders Immemorial Possession it cannot consist nor give Prescription without a sufficient Title by Infeftment and it hath been frequently Interrupted by the Pursuer It was answered by the Defender that he and the Pursuer and the Laird of Reiris having three Thirds of one Barony all lying Rin-ridge the Kings granting the Pursuer his Third cum Salmonum piscationibus added to the Lands as a Pendicle thereof it cannot be understood exclusive of the other two Third Parts of the same Barony likeas Reiris hath the same Clause in his Infeftment and albeit Earls-halls Clause be not so express yet it not being the common Clause in the Tenendas cum piscationibus but in the Dispositive Clause of this special Tenor it must needs comprehend Salmond Fishing or otherwise it would have no Effect verba autem interpretanda sunt cum effectu and albeit the Clause were dubious yet it hath been in long possession Immemorial which sufficiently Instructs the Accustomed Fishing to have been before the same 2ly As to the Anteriority of the Pursuers Infeftment the Defenders offers to prove that his Predecessor was Infeft before him with this Clause that is in his own Infeftment produced 3ly Albeit the Defenders Right were Posterior yet it is sufficient to give him a Joint Right to the Salmond Fishing with the Pursuer because he offers him to prove that he hath fourty years peaceably Possest the Salmond Fishing as the Pursuer hath when ever they were in the River The Lords found that the Clause in the Defenders Infeftment albeit it had been prior to the Pursuers could not give Right to the Salmond Fishing in prejudice of the Pursuers expresse Infeftment of Salmond Fishing unlesse the Defenders Infeftment had been clede with Immemorial and fourty years peaceable Possession which being so alleadged by the Defender the Pursuer offered to prove Interruption and therefore a Term was granted to either Party to prove Mr. Iohn Elies contra Wishart and Keith Eodem die MAster Iohn Elies having Inhibit Elizabeth Keith his Debitor she did thereafter acquire a VVodset of certain Lands within the Shire where the Inhibition was published and thereafter upon payment of part of the Sums the VVodset Right was Renunced pro tanto and the rest being Consigned there is now a Process of Declarator of Redemption wherein Mr. Iohn Elies Compears and produces a Declarator at his Instance for declaring the Sums of the VVodset to belong to him and alleadges no Declarator of Redemption till the whole Sums contained in the VVodset Consigned be given up to him without respect of the payment or Renunciation of a part because it being done after his Inhibition it was null and so is craved to be declared by his Declarator It was answered First That Inhibitions can reach no further then to the Lands the Person Inhibit had the time of the Inhibition but not unto Lands he should happen to acquire after the Inhibition because the Inhibition bearing that the person Inhibit should not Sell or Alienat to the prejudice of the User of the Inhibition albeit she should Sell what thereafter he acquired the User of the Inhibition were in no other case then when the same was published the Land being both gotten and gone thereafter and if that were the effect of Inhibitions every provident person would Publish and Registrat them in all the shires of the Kingdom because they can only reach Lands lying in the shire where they are Registrated which was never done neither was it ever Decided that Inhibitions reached Lands acquired thereafter 2ly Inhibitions can never hinder persons having Right of Reversion to pay the Sums and the Wodsetter to Renunce because Inhibitions only Restrain Debar and Inhibit to Sell c. But doth not hinder him to pay his Debt or upon payment of the Wodset Sums to Discharge the Sums and Renunce the Lands these being Deeds necessar to which he might be compelled and if this hold no man might saflie pay an Heretable Band having Infeftment of Annualrent without searching the Registes which the most cautious man never did and for this alleadged the expresse Opinion of Craig that Inhibitions hinder not Discharges of Heretable Sums or Renunciations of VVodsets It was
priviledged The Lords Repelled the Defense and found the Donatar lyable for the Rent in so far as ilk years intromission would extend to the Rent of that year George Schine contra Iames Christie Eodem die GEorge Schine having Adjudged an Annualrent and having Charged Iames Christie his Superiour to receive him He Suspends and alleadges he had Appryzed the same Lands before and that his Author was only Infeft base never cled with Possession The Lords Repelled the Defense hoc loco and ordained him to Infeft Reserving his own Right as accords Schaw contra Tennents Eodem die SChaw pursues certain Tennents for their Duties who produced several Discharges against which it was alleadged that the Discharges were null wanting Witnesses and were not Written with the Dischargers own hand and so were null by the Act of Parliament It was answered that Custome had introduced several exceptions from that Act as Bills of Exchange of the greatest importance which are valid being Subscribed without Witnesses albeit not holograph And in like manner the Discharges granted to Tennents which by long Custom through all the Kingdom use only to be subscribed by the Landlords without Witnesses and writen with another hand The Lords sustained the Discharges and would not put the Tennents to prove that they were truely subscribed unless they were offered to be improven in which case though the indirect manner was wanting they might be improven by comparison of Subscriptions and other Adminicles wherein less would serve then in other Improbations Sir Henry Hume and other the Creditors of Kello contra Sir Alexander Hume Iuly 6. 1667. SIr Henry Hume and others being both Creditors to Alexander Hume of Kello And Iohn Hume his Son Appryzed the Lands of Kello in anno 1649. And in anno 1653. Charged the Superior in anno 1661. Iohn Hume is Forefault upon the Treasonable Crimes committed in anno 1651. Sir Alexander Hume is Donatar to the Foresaulture the case of Alexander Humes Right before the Appryzing was that by Contract of Marriage Alexander Hume had Disponed several Husband Lands to Iohn reserving his own Liferent of certain Husband Lands The Father continued to possesse the Lands Reserved and the Son of the rest The Question is now concerning the Lands Reserved whereanent the Competition is betwixt the Creditors Appryzers and the Donatar It was alleadged for the Donatar that he ought to be preferred because any Right the Creditors had is but an Appryzing and a Charge without Infeftment which Charge albeit it be equivalent to an Infeftment in the Competition betwixt Con-compryzers yet it is no way equivalent as to the King for after the Charge all Casualities of the Superiority would fall to the Superior and so must the Casuality of Forefaulture fall to the King 2ly Though the Appryzers had been Infeft when they Charged their Infeftment would have been long after the committing of the Crime and there was nothing before the Crime but the naked Appryzing which was no real Right so that the Forefaulture devolving the Fee to the King with the burden only of such real Rights as the Superiour had consented to before the Cryme which cannot extend to this Appryzing which is no real Right or to the Charge and Infeftment thereon because after the Crime 3ly Albeit the Infeftment of the Son who was Forefault was base holden of the Father yet it coming in the Person of the King or his Donatar can no more be a base Right but becomes publick so soon as it is devolved to the King which was at the committing of the Crime before the Appryzers Infeftment or Charge It was answered for the Creditors that they ought to be preferred upon their legal Diligence for satisfaction of the lawful Debt contracted before the Crime because they had Appryzed before the Crime and had Charged the Superiour before the Sentence of Forefaulture Which Charge is equivalent to an Infeftment and the King succeeding in the place of the Forefault Person utiâ—ur jure privato and albeit noâ— voluntar Deed after the Committing of the Crime would be effectual against the King or his Donatar Yet an Appryzing before the Crime and a Charge before the Sentence or Process of Forefaulture is sufficient in favours of the Creditors especially seing the Superiority being unquestionably in their Father they might Charge him when they pleased and having Charged him they become in his place and cannot Charge themselves as Superiours of the Forefault Person The Lords preferred the Appryzers in respect of their Appryzing before the Crime and the Charge after before the Forefaulture It was further alleadged for the Appryzers that the forefault Persons Right being only base never cled with Possession their Appryzing against the Father who was not forefault was preferable It was answered for the Donatar that the Forefault Persons Right was cled with Possession in so far as the Forefault Person possest a great part of the Lands Disponed lying all together and of the rest the Fathers liferent being reserved the Fathers Possession was the Sons Possession It was answered that Possession of a part cannot be sufficient for the whole where there is an express Reservation hindering the Natural Possession of the rest and where the rest are actually possest by another Party neither can the Fathers Possession be the Sons because it is ordinarly found that Dispositions by a Father to his eldest Son and Infeftments thereon reserving the Fathers Liferent are not thereby cled with Possession And albeit in Reservations in favours of Wives the Husbands Possession be the Wifes Possession yet that is a special priviledge favore matrimonij dotis and is not competent to any other It was answered for the Donatar that a Reservation in favours of a Father in any gratuitous and clandestine Infeftment granted to the Son does not validate the same yet the Infeftment being for a Cause onerous viz. a Marriage which is a solemn and publick Act the Infeftment following thereupon is void of all suspition of Simulation and as an Infeftment to a Stranger reserving the Disponers Liferent would be valid by the Disponers Possession So must a Sons upon a Contract of Marriage otherwise great prejudice will follow Sons being frequently Infeft in their Fathers whole Estate reserving their Liferent of a part and ordinarly but basely Infeft to secure the Property being more desirous to Enter themselves as Heirs to their Fathers after their death if no posterior prejudicial deeds be done which is more honourable for the Family all the Infeftments would be overthrown being upon Debts contracted after the Infeftment The Lords being of different Iudgements in this Point were loath to decide them because the Case was decided by the former Vote Stevin contra Iohn Boid Iuly 9. 1667. IN a Tutor Compt at the Instance of Stevin against Iohn Boid these Queries were Reported by the Auditor and determined by the Lords 1. How soon a Tutor was obliged for Annualrent of the Defuncts Bonds that
the same which Decisions can only make a Custom equivalent to Law 2dly Albeit where Wodsets were before the Inhibition the Debtor might accept Renunciation because by the Reversion the Wodsetter is obliged to grant Renunciation upon payment so that the granting of the Renunciation being upon an obligment Anterior to the Inhibition could not be prejudged by the Inhibition as is found in all cases but here the Wodset was contracted after the Inhibition 3dly The Renunciation here granted was voluntarly accepted and payment was voluntarly made because there was a Clause of Premonition and Requisition in the Wodset which was not used It was answered that the Stile of Inhibitions is no Rule seing it prohibits the Selling of Goods and Geir to which no Inhibition is extended and there being no Law nor any Dicision that an Inhibition should be extended against a Renunciation of a Wodset the common Opinion and common Custom of the Nation to the contrair is sufficient neither is there any difference in the Custom whether the Wodset be contracted after the Inhibition or before and if there were there is much more reason that Wodsets contracted before should rather be subject to the Inhibition then Wodsets contracted after by which the Creditor Inhibiter is in no worse condition when they are Renunced then he was the time of his Inhibition neither was the payment here made voluntar albeit Requisition was not used because there being an obligement to pay the delay upon the Requisition being only for a few days no prudent Man would suffer himself to be charged upon the Requisition and it is no more voluntar then if a Creditor should pay before the Registration of his Bond because he could not be compelled before it were Registrat and he charged but seing Law and Custom obliged not Debtors to inquire for Inhibitions they may pay what way they please and albeit there had been a Requisition yea and a Consignation unless the Debtor after Inhibition had been obliged to call the Inhibiter it could operat nothing as to the Inhibiter It was answered that there would be a great Detriment to Creditors if they cannot affect Wodseâ—s by Inhibition seing these cannot be Arrested It was answered they might be Appryzed It was answered they might be Renunced before the Term of payment of the Creditors Debt so that Appryzing could not proceed and that a Debtors whole Estate may consist in a Wodset It was answered that that case could seldom occur and that there was neither Law nor Custom introduced upon that account The Lords found that the Inhibition could not operat against the Renunciation of the Woose and decided that general point by it self for clearing the I ieges and ordaiâ—ed the Parties to be heard upon some other Points in this particular Case as that payment of this Wodset was made after the parties was in mala fide after processe intented against him by Mr. John Eleis Hamiltoun contra Symintoun Eodem die DAvid Hamiltoun as Assigney by Robert Steel to a Bond granted by Andrew Symintoun pursues Grissel Symintoun as representing him for payment who alleadged absolvitor because the alleadged Bond is manifestly null in so far as on that side where the Subscriptions is there is only the Clause of Registration and all the rest is filled on the other side with another Hand and there is not one word on the Subscribed side of the Matter of the Bond that might have Connexion with the back-side which is unsubscribed so that this has been the last Sheet of a Writ taken off and filled upon the back upon which anything might have been filled up that the Pursuer pleased The pursuer answered that he oponed his Bond subscribed by VVitnesses which he byds by as a true Deed and is valide unless it were improven The Lords found this Writ null and yet declared that if the pursuer could adduce VVrits or Adminicles to astruct the same they would Examine the same ex officio as the VVriter and VVitnesses if they were alive The said pursuer did also insist against the Defender for her own Aliment as having Right thereto from his own Son who had Married her Mother It was alleadged for the Defender that her Mother Liferented her whole Estate and so by Act of parliament was obliged to Aliment the appearand Heir It was answered the Defender had Renunced to be Heir to the same Pursuer and so could not crave that Benefite It was answered that as Appearand Heir She had Right to the Aliment and her offering to Renunce was but to save her from personal Excution and it could not prejudge her of her Aliment which she had received before she Renunced Which the Lords found Relevant Lady Burgy contra Her Tennants and Sir John Strachan Iuly 18. 1667. THe Lady Burgy pursues the Tennants of her liferent-Liferent-lands to Remove Compearance is made for Sir Iohn Strachan who alleadges that he stands publickly Infeft in this Land and in Possession and will not suffer his Tennents to Remove It was replyed that the Pursuers Infeftment in Liferent is long before Sir Iohns and could take no effect till now that her Husband is dead It is answered that the Ladies Infeftment is base and therefore though it be prior to Sir Iohns publick Infeftment it cannot be preferred thereto unless it were alleadged it was cled with Possession before the publick Infeftment either by the Ladies own possession or at least by her Husbands possession but she cannot alleadge either because these parties were in possession from the Date of her Infeftment till the Date of this publick Infeftment It was answered for the Lady that she offered her to prove her Husband was in possession after her Infeftment and before the Defenderes Infeftment by himself or at least by these who derived Temporary or Redeemable Rights from him or his Authors as Liferents Wodsets and unexpired Comprysings It was answered that albeit favore Matrimonij the Husbands possession though common author be counted the Wifes possession yet the possession of a Wodsetter or Appryzer are neither said to be the Wifes possession nor the Husbands because they possess propâ—io jure and the Husband had only a Reversion The Lords found the alleadgeance Relevant for the Lady that her Husband possest after her Infeftment and before the publick Infeftment either by himself or by any deriving a Temporary Right from him or his Authors Executors of the Earl of Dirletoun contra Duke Hamiltoun Earl of Crawford and others Eodem die IN August 1645. the Earls of Crawford Lanerk and several other Noblemen and Gentlemen granted Bond to the Earl of Dirletoun bearing an Obligement therein Conjunctly and Severally to pay ten Merks for ilk Boll of 6000 Bolls of Victual that should be Delivered by Dirletoun to Iames Riddel or his Deputes the said Earl always obtaining Iames Riddels Receipt thereupon which Delivery and Receipt were to be betwixt and a blank day and the Receipt to be Delivered before
Writ that the Instructions were retained in his hand Iohn Auchinleck contra Mary Williamson and Patrick Gillespy December 18. 1667. MAry Williamson Lady Cumlidge having taken Assignation to several Debts of her Husbands Appryzed the Estate from her Son and in September 1662. Dispones the Estate to her Eldest Son reserving her own Liferent of the Maines and Miln and with the burden of five thousand Merks for Iohn Auchinleck her second Son at the same time her eldest Son grants a Tack to Patrick Gillespy bearing expresly that because he was to Marry his Mother and to possesse the Mains at the next Term therefore he Sets the Land for an inconsiderable Duty for a year after his Mothers Death there was no Contract of Marriage betwixt the said Mary and the said Patrick but they were Married in December thereafter and he possessed it till this time and now Iohn Auchinleck pursues for Mails and Duties bygone and in time coming as having Assignation to the Reservation granted by his Mother It was alleadged for Patrick that as for bygones Absolvitor because he was bonae fidei Possessor by vertue of the Reservation in favours of his Wife belonging to him jure mariti 2dly The Assignation made to the Pursuer was most fraudulent being granted at the time of the Agreement of Marriage betwixt the said Patrick and his Wife and there being a Provision granted to the Pursuer of five thousand Merks the said Mary did most fraudfully at that same time Assigne the Reservation and so left nothing to her Husband but a woman past sixty years It was answered that where there is a solemn Contract of Marriage and Proclamation Deeds done thereafter cannot prejudge the Husband but here there is neither Contract nor Proclamation alleadged and albeit there had been fraud in the Mother the Son being a Boy and absent was no way partaker thereof and cannot be prejudged thereby It was answered for the Defender that he hath a Reduction depending of this ex capite fraudis and if the Wife could do no fraudful Deed after the Agreement of Marriage it will thereby be null whether the Son was partaker or not unless he had been an Acquirer for an Onerous Cause and albeit there was no Contract of Marriage in Writ yet the foresaid Tack evidences an Agreement of Marriage At Advising of the Cause the Lords thought this conveyance a very Cheat and it occurred to them that the Marriage and jus Mariti is a legal Assignation and there having been nothing done by the Son to intimat this Assignation or to attain Possession thereby before the Marriage the Husband by the Marriage had the first compleat Right and was therefore preferable and likewise they found the Husband free of bygones as bonae fidei Possessor any found that the Reason of Reduction upon fraud after the Agreement of the Marriage evidenced by the Tack bearing the Narrative of the intended Marriage of the same date with the Pursuers Right and the Disposition to the eldest Son relevant to Reduce the Pursuers Assignation in so far as might be prejudicial to the Husband Sir Thomas Nicolson contra the Laird of Philorth Eodem die UMquhil Sir Thomas Nicolson having pursued the Laird of Philorth before the late Judges as representing his Grand-father who was Cautioner in a Bond for the Earl Marishal there being an Interlocutor in the Process Sir Thomas dying his Son transfers the Process and insists The Defender alleadged that the Bond was prescribed as to his Grand-father by the Act of Parliament King Iames the sixth anent prescription of Obligations bearing that if no pursute were moved nor document taken within 40 years that these Bonds should prescribe Ita est there was no pursute nor document against the Defenders Grand-father by the space of 40. years and therefore as to him it was prescribed The Pursuer answered that he opponed the Act of Parliament and Interlocâ—tor of the Judges in his favours and offered him to prove that the Annualrent was payed by the Principal Debtor within these 40. years and his Discharge granted thereupon which was sufficient document and the Pursuer not having been negligent nor at all bound to pursue or seek the Cautioners when he got Annualrent from the Principal the Obligation of both stands entire The Defender answered that the Principal and Cautioners being bound conjunctly and severally albeit in one Writ yet the Obligations of each of them was a distinct Obligation and as the Cautioner might be Discharged and yet the principal Obligation stand so the prescription is a legall Discharge presuming the Creditor past from the Cautioner seing he never owned him for 40. years which is most favourable on the part of Cautioners who otherwise may remain under unknown Obligations for an hundreth years The Pursuer answered that albeit there might have been some appearance of reason if the Persons obliged had been all Co-principals or bound by distinct Writs yet whether Writ and Obligation is one and the Cautioners Obligation thereby but accessory and the Creditor no way negligent there is no ground of such a presumption that the Creditor past from any Party obliged and the Obligations mentioned in the Act of Parliament is not to be meaned according to the subtility of distinction of different notions of Obligations but according to the common Style and meaning of Obligations whereby one Writ obliging Principal and Cautioners is always accompted an Obligation which is sufficiently preserved by payment obtained from the Principal The Lords adhered to the former Interlocutor and repelled the Defense of prescription in respect of the Reply of payment made of the Annualrents made by the Principal Robert Dâ—by contra the Lady of Stonyhil Eodem die THe Lady Stonyhil being Provided in Liferent to an Annualrent of 2800. Merks her Son pursues her for an Aliment both upon the Act of Parliament in respect that the Defuncts Debt was equivalent to all the rest of the Estate beside her Liferent and also super jure naturae as being obliged to Aliment her Son he having no Meaâ—â— and she having a plentiful Provision The Lords in consideration of the newnesse of the Case and that the Debts that might exhaust the Estate were most part personal and no Infeftment thereon before or after the Defuncts death recommended to one of their Number to endeavour to agree the Parties Adam Gairns contra Elizabeth Arthur December 19. 1667. ADam Gairns as Assigney Constitute by Patrick Hepburn pursues Elizabeth Arthur for the Drogs furnished to her and her Children at her desire It was alleadged Absolvitor because she was and is cled with a Husband and the Furniture could only oblige him but not her It was Replyed that she had a peculiar Estate left by her Father wherefrom her Husband was secluded and which was appointed for her Entertainment that her Husband was at that time and yet out of the Countrey and hath no Means The Lords found the Reply Râ—levant Arcâ—ibald Wilsâ—n
contra the Magistrats of Queens-ferry Ianuary 2. 1668. ARchibald Wilson being Elected on of the Baillies of the South Queens-ferry and being Charged to Accept and Exerce the Office Suspends on this Reason that by the 29. Act Parliament 5. King Iames the 3. No Magistrate of Burgh is to be continued in Office longer then one year and by a particular Act of that Burgh no Magistrat is to continue above two years and true it is that the Suspender hath served as Baillie two years already It was answered that the Act of Parliament is long since in desuetude and as to the Act of the Burgh the Election of the Suspender being done by them who have power to make that Act is in effect an alterationt hereof and this Burgh being poor and penury of persons to Serve it will dissolve the same and discourage all others to Serve if the Suspender be Liberat. The Lords found the Reasons of Suspension relevantâ—â— and found that the Suspender could not be compelled to serve longer then one year at once in the same Office Dow of Arnho contraâ— Campbel of Calder Ianuary 4. 1668. DOw of Aricho having pursued Campbel of Calder as Heir to his Father for payment of a Bond wherein his Father was Cautioner for the Marquess of Argyl the Bond bore but one Witnesse to Calders subscription and George Campbel one of the Witnesses being Examined if he saw him subscribe Deponed negative but that it was Calders hand Writ to the best of his knowledge there was also other writs produced subscribed by Calder to compare the subscriptions The Lords would not sustain the Bond having but one Witnesse insert to Calders subscrsption upon the foresaid Testimony and Adminicles Mr. Iohn Forbes contra Innis Ianuary 1. 1668 MAster John Forbes as Assigney to Margaret Allerdes having obtained Decreet of Removing against Margaret Innis for Removing from the Lands of Savet wherein the said Margaret Allardes is Infeft in Liferent which being suspended It was alleadged first That this pursuâ—e is to the behove of Margaret Allerdes who could not obtain a Removing against the Defender because the Defenders Husband being Infeft by the said Margaret Allardes Husband and Author of the Lands of Savet principally and of the Lands of Govan and others in Warrandice The said Margaret Allardes did consent to the Disposition of the Warrandice-lands by which she obliged her self to do no Deed in the contrair of that Right and is also bound in Warrandice with her Husband ita est her pursuing this Action is a Deed in prejudice of the Right of Warrandice-lands in so far as thereby the Person having Right to the principal Lands upon Eviction recurrs upon the Warrandice-lands and so the Consenters own Deed prejudges the same It was answered that by Deeds contrair to Warrandice were only understood some Right granted by the Disponer or Consenter in prejudice of the Right consented to but no wayes a pursute upon any other Right of the Consenter for it were against Reason and Justice that a Purchaser to make himself secure requiring a Wifes consent to Lands to which she had no Right either Principal or in Warrandice of other Lands that her Consent should prejudge her as to her Liferent lands of which there was no mention and as to her Personal Obligement to Warrand the Lands wherein she was never Infeft it is null and can never oblige her being a Wife The Lords found that this Warrandice did not oblige the Wife and that her Consent did not hinder her to pursue upon her own Liferent albeit ex consequente her pursute excluded one having a posterior Right to her Liferent-lands who thereupon had recourse to the Warrandice-lands to which she Consented seing she had granted no Right prejudicial to the Right Consented to It was further alleadged that the said Margaret Allardes agreed with the Person having Right to her liferent-Liferent-lands principally that she should accept the Warrandice-lands in stead of her Liferent-lands which excambion putting the Right of the Warrandice-lands now in her Person she who consented to the Right thereof can never come in the contrair of her own Consent to prejudge the same It was answered that a Consâ—nt cannot exclude any supervenient Right of the Consenter but only such Rights as the Consenter had the time of the Consent it is true that a Disponer with absolute Warrandice if he acquire a Right it accresces to his Successor but it is not so in a Consenter whose warrandice is not found to be Obligator further then as to the Rights in the Consenters Person at that time Which the Lords Sustained It was further alleadged that the Pursute as to the behove of the Heir of the Disponer of the Lands in question whose Predecessor being bound in absolute Warrandice he can make no use of no Right prejudicial to his Warrandice 2dly Albeit he be not Heir yet he hath behaved himself as Heir and thereby is lyable to fulfil the Defuncts Warrandice and so cannot come against it It was answered that behaving as Heir being a vitious passive Title is not sustainable by way of exception in this case The Lords Sustained the same and found both members of the alleadgeance relevant Margaret Forbes contra 〈…〉 Eodem die MArgaret Forbes having granted a Tack of her liferent-Liferent-lands to 〈…〉 bearing expresly for payment of such a Sum of Money and bearing to endure for 19. years she did receive a Back-bond of that same Date bearing that so soon as the Sum was payed the Tack should become void the Tack coming to a singular Successor she pursues him for Compt and Reckoning and Removing and insists upon the Tenor of the Tack and Back-bond It was alleadged for the Defender that the Back-bond did not militat against him being a singular Successor neither being Registrat nor Intimat to him before his Right in respect the Tack is a real Right and no Obligement or Provision of the Tacks-man can prejudge a singular Successor The Lords Repelled the Defense and Sustained Processe against the Defender in respect of the Tack and Back-bond The old Lady Clerkingtoun contra Clerkingtoun and the young Lady Ianuary 9. 1668. THe old Lady Clerkingtoun being Infeft in an Annualrent of seven Chalders of Victual out of the Mains of Clerkingtoun for thirty six years bygone she pursues a Poinding of the ground It was answered for the Laird and his Mother that the Pursuer having been so long out of Possession cannot make use of a Possessory Judgement but must first declare her Right 2dly The young Lady is also Infeft in an Annualrent and hath been by vertue thereof more then seven years in Possession and so hath the benefit of a Possessory Judgement till her Right be reduced and cannot be Dispossest by the old Ladies posterior Infeftment The Lords Repelled both the Defenses and found that an Annualrent is debitum fundi and is not excluded by Possession of a posterior Right and needs no Declarator and
returns and therefore ordered an other Letter to be written to the Secretary to know the Kings Mind and the Custom of England in that point before answer and ordained the opinion of some Merchants to be taken whether Parkmans Ship Fraught in Norway to Holland and Disloaden there and thence going to France with Ballast not upon the account of the former Fraught but the Owners if it should be accounted one Voyage or two so that the return from France might be accounted the immediat return of the Voyage to Holland In this Processe the Lords by a former Interlocutor had found the taking on of the Men as they were qualified and proven to be no ground of seasure Dowgal Mcferson contra Alexander Wedderburn Eodem die DOwgal Mcferson having Charged Alexander Wedderburn of Kingennie Provost of Dundee for payment of a Sum of Money he Suspends on this Reason that the Sum was payable to Dowgal and his Wise in Liferent and contained a Clause of premonition and Requisition and the Sum to be Consigned in the Hands of the Dean of Gild of Dundee which was Consigned accordingly The Charger answered that he offered to prove by the Suspenders Oath that he took up the Money from the Dean of Gild and therefore he must re-produce the same with the Annualrents thereof since the Consignation It was answered that it being the Chargers fault that the Suspender was put to Consigne because he had not a Discharge granted by his Wife judicially that therefore he could not be lyable for Annualrent in that he uplifted the Soum unlesse it were proven he had made Profit thereof but he offered to Depone that he had all the Money still lying by him and got no Profit of the same and that he ought to have uplifted in regard he was lyable for the hazard of the Consignation The Lords found the Suspender lyable to produce the Money Consigned with the Annualrent since seing he uplifted the same without difference whether he made Profit or not The Baillie of the Regality of Killimure contra Burgh of Killimure Eodem die THe Heretable Baillie of the Regality of Killimure having Conveened and Amerciat a Person in the Burgh they Suspend on this Reason that the Burgh being a Burgh of Regality having its own Magistrats Inhabitants are only lyable to the Jurisdiction It was answered that the Burghs Jurisdiction being granted by the Lord of Regality is only cumulative and not exclusive of the Lord of Regality or his Baillie in the same way as the Jurisdiction of all Vassals is not exclusive of their Superiors Jurisdiction for the Burgh are Vassals Holding of him and therefore est locus preventioni and the first Citation without negligence is preferable Which the Lords found Relevant Earl of Argyle contra George Campbel Ianuary 15. 1668. THe Earl of Argyle pursues George Campbel to Remove from a Tenement of Land in Inerera who alleadged no Processe because the Pursuer produces no Infeftment of this Burgh or Tenement therein The Pursuer answered that he produced his Infeftment of the Barony of Lochow and offered him to prove that this is part and pertinent of the Barony The Defender answered that this Burgh cannot be carried as part and pertinent but requires a special Infeftment first Because by the late Marquess of Argyls Infeftment in anno 1610. produced this Burgh is exprest and not in the Pursuers Infeftment 2dly Because in the Pursuers Infeftment there is exprest particulars of far lesse moment 3dly Because a Burgh of Barony is of that nature that cannot be convoyed without special Infeftment The Pursuer opponed his Infeftment of the Barony of Lochow which is nomen universitatis and comprehends all parts of the Barony although there were none exprest and therefore the expressing of this particular in a former Charter or lesse particulars in this Charter derogat nothing it being in the Pursuers option to expresse none or any he pleases and albeit in an Infeftment of an ordinary Holding without Erection in a Barony Milns Fortalices Salmond Fishings and Burghs of Barony cannot be conveyed under the name of part and pertinent yet they are all carried in baronia without being exprest The Lords Repelled the Defence in respect of the Reply and found that this being a Barony might carry a Burgh of Barony as part and pertinent though not exprest albeit it was exprest in a former Infeftment and lesser Rights expressed in this Infeftment The Defender further alleadged no Processe because the Pursuers Infeftment is qualified and restricted to so much of the Estate as was worth and payed yearly fifteen thousand Pounds and the superplus belongs to the Creditors conform to the Kings Gift likeas the King granted a Commission to clear the Rental and Set out the Lands to the Pursuer and to the Creditors who accordingly did Establish a Rental wherein there is no mention of the Lands of Innerera and therefore they cannot belong to the Pursuer It was answered for the Pursuer that he oppones his Infeftment which is of the whole Estate and whatever Reservation be in Favours of the Creditors it is jus tertij to the Defender It was answered that the Defenders Advocats concurred for a number of the Creditors whom they named and alleadged that they would not suffer the Defender to be Removed seing they only can have Interest to these Lands in question The Pursuer answered that the Creditors Concourse or Interest was not Relevant because they have no Real Right or Infeftment but only a personal Provision that this Pursuer shall dispone and Resigne the superplus of the Estate in their Favours or otherwise pay them eighteen years purchase therefore at his option whensoever they shall insist Via actionis the Earl shall declare his option but they having no Infeftment cannot hinder the Donatar to Remove Parties having no Right which is the Creditors advantage and cannot be stopped by a Few of them likeas the whole Barony of Lochow is Set out by the said Commission to the Pursuer himself conform to their Sentence produced The Lords did also Repel this Defence and found that the Provision in Favours of the Creditors could not stop this Removing Earl of Kinghorn contra the Laird of Vdney Eodem die THe Earl of Kinghorn pursues the Laird of Vdney as representing his Father to Denude himself of a Wodset Right granted by the late Earl to the Defenders Father conform to the Defuncts Missive Letter acknowledging the Receipt of the Sums of the Wodset and obliging himself all written with his own Hand and craved that the Defender might Enter and Infeftâ— himself in the Wodset and Resigne in Favours of the Pursuer that the Lands might be purged thereof and insisted against the Defender first As lawfully Charged to enter Heir who offered to Renunce to be Heir The Pursuer answered he would not suffer him to Renunce because he offered himâ— to prove that he was lucrative Successor by the Disposition of the
he refused without an equal division and several of the Witnesses having Deponed that that difference was referred to the Owners without dissolving the consortship Mastertoun himself having also Deponed that in contemplation of the consortship Coningsbies Men waâ— put Aboard of him and the Prize and the Witnesses having variously Deponed anent the distance when the first Prize streiked Sail and was taken The Lords found a consortship sufficiently proven and that there was a concourse as to the first Prize and therefore found Coningsby to have a Right to a share which they found to be the equal share seing Mastertoun was most instrumental and did actually seize upon both Prizes The Minister of Cockburns-path contra his Parochiners Eodem die THe Minister of Cockburns-path having obtained a Designation of a Horse and two Kines Grasse conform to the Act of Parliament 1661. pursues a Declarator of his Right thereby It was alleadged Absolvitor because the Designation was null in respect it was by the Bishops Warrand direct to three Ministers Nominatim and it was performed only by two the third not having come and a Commission to the three must be understood joyntly and not to empower any two of them unlesse it had been exprest likeas the Act of Parliament anent the Grasse requires the Designation of three Ministers The Pursuer answered that by the Act of Parliament 1661. the Designation of Grasse is appointed to be according to the old standing Acts anent Manses and Gleibs which do not require three Ministers that number being only required by the Act of Parliament 1649. which is Rescinded and not revived as to that point and seing three Ministers are not necesâ—ar but that two are sufficient the Designation done by two is sufficient The Lords Sustained the Designation unlesse the Defender shew weighty Reasons of prejudice upon the matter Sir John Weyms contra the Laird of Touchon February 8. 1668. SIr Iohn Weyms having a Commission from the Parliament to lift the Maintainance when he was General Commissar Charges the Laird of Touchon for his Lands who Suspended on this Reason that by that Act and Commission singular Successors are excepted The Pursuer answered that the Act excepteth singular Successors who Bought the Lands but the Suspender is appearand Heir and Bought in Appryzings for small Sums and as Wodsetters are not freed as singular Successors nor Appryzers within the legal so neither can the Suspender for albeit the legal as to the Appryzer be expired yet the Act of Parliament between Debtor and Creditor makes all Apprizings Bought in by appearand Heirs Redeemable from them on payment of the Sums they Bought them in for within ten years after they Bought them and therefore as to Touchon who is apperand Heir he is in the same case with an Appryzer within the legal Which the Lords found relevant and Decerned against Touchon Andrew Greirson contra Patrick Mcilroy Messenger February 13. 1668. ANdrew Greirson having employed Patrick Mcilroy Messenger to use Inhibition and Arrestment against Sir Iames Mcdougal of Garthland and having failed to make use thereof in time before he Disponed did pursue him and Houstoun of Cutreoch his Cautioner before the Lord Lyon whereupon the said Patrick and his Cautioner were Decerned to make payment of 500 Merks of Penalty and of the Damnage and Interest sustained by the Pursuer to the value of the Sums whereupon the Inhibition and Arrestment should have been used The Messenger and his Cautioner raises Suspension and Reduction and insists upon this Reason that the Decreet is null as a non suo judice because albeit the Lyon be Authorized by Act of Parliament 1587. cap. 46. to take Caution for Messengers Discharge of their Office and upon default may Summond Messengers and their Cautioners and may Deprive the Messengers and Decern them and their Cautioners in the pains and penalty for which they became Cautioners yet the Lyon is not warranted thereby to Determine the Damnage of Parties through Default of Messengers which may be of the greatest Moment and Intricacy and would be of dangerous consequence to give the Lyon such Jurisdiction over all the Kingdom The Charger answered that the Messenger was unquestionably lyable to the Lyons Juridiction and that both he and the Cautioner had made themselves lyable thereto by Enacting themselves in the Lyons Books â—nd granting Bond Registerable therein and it would be great inconvenience to pursue Messengers before the Lyon only for Deprivation and Penalty and have need of another Process for Damnage and Interest and that the Lyon has been accustomed to Decern Cautioners so before The Lords found the Reason of Reduction relevant and turned the Decreet into a Lybel but Sustained the Decreet as to the Penalty of 500. Merks in which the Messenger was Enacted but nâ—t for the Damnage and Interest neâ—â—her against the Messenger nor Cautioner William Borthwick contra Lord Borthwick February 14. 1668. WIlliam Borthwick having Charged the Lord Borthwick for payment of a Sum of Money he Suspends and alleadges that William is Debtor to him in an equivalent Sum for the price of the Lands of Halâ—eriot Sold by my Lord to the Charger conform to a Minut produced The Charger answered that the Reason was not relevant unlâ—sse the Suspender would extend and perfect the Minut which my Lord refuses especially and particularly to Subscribe a Disposition of the Lands with common Pasturage in Borthwick Moor. The Suspender answered that he was most willing to extend the Minut but would not insert that Clause because the Minut could not carry nor import the same bearing only a Disposition of the Lands with Parts Pendicles and Pertinents thereof which he was content should be insert in the extended Disposition and it was only proper after the Infeftment was perfected that the Charger should make use of it so far as it could reach which he was content should be reserved as accords 2dly If he were obliged to Dispute the effect of it it could not extend to Pasturage in the Moor of Borthwickâ— first Because a special servitude of a Pasturage in such a Moor requires an express Infeftment and cannot be carried under the name of Pendicles Parts or Pertinents albeit the Moor were contiguous and the common Moor of a Barony but 2dly This Moor lyes discontiguous from the Lands of Halheriot and my Lords Lands lyes betwixt and does not belong to the whole Barony but to some of the Tennents of it only The Charger answered that this being a Minut behâ—ved to be extended in ample form expressing all Rights particularly that the Right de jure could carry and there was no Reason to make him accept of Lands with a Plea and de jure Pendicles and Pertinents do well extend to common Pasturage when the said Pasturage is so Possessed and it cannot be contraverted but the Heretors and Possessors of Halheriot have been in undoubted Possession of common Pasturage in this Moor and that the Rent payable therefore is
Kings Farmorers but that they had Common Pasturage in the Moor of Selkirk is not only presumed because it is the Common of the whole Barony and Possest by all the adjacent Feuars thereof but also by their continual Possession since for Possession 40. years is sufficient to prove all bygone Possession since the Right capable of that Possession it being impossible to adduce Witnesses to prove Possession eight score years since otherways and therefore as in the Case of the Lord Borthwick and William Borthwick Decided the 14th of this Instant The Lord Borthwicks Minut Disponing the Lands cum pertinentibus without any word of Pasturage was found to carry Common Pasturage in the Moor of Borthwick as being a Pertinent of the Lands Disponed the time of the Minut and not Reserved much more the King Disponing the Lands of Haining not only cum pertnenâ—tibus but cum pascuis et pasturis did carry to Haining the Right of Common Pasturage in the Common of Selkirk being then the Commonty of the Barony so that any Interruptions done since cannot take away the Right of Common Pasturage once constitute by the King and albeit the King had unquestionably granted the Right of Property to the Town thereafter yet that could not prejudge the Common Pasturage of another Constitute before For if Haining claimed this Common Pasturage only by Possession and Prescription Interruptions might be Sustained to exclude the famine but he claimes it chiefly by vertue of his Infeftment as having Right thereto the first day he was Infeft so that his Possession since albeit troubled by this Commonalty yet preserves his Right that the Town cannot alleadge a total and compleat Possession excluding him and thereby taking away his Right by Prescription in their Favour and as to the Towns Charter cum communiis it contains nothing per expressum of this Moor or Pasturage therein nor gives any thing de novo but bears cum communiis adâ—urgum spectantibus which the King might have given though there had not been a Commonty within 40. Miles in the same manner as the common Clauses in all Charters bearing Coal and Chalk Cuningars or Ducats whether there be any or not and the most the Town can pretend by their Charter is that they being a Burgh Erected within the Barony of Selkirk cum communiis may therefore claim Pasturage with the rest of the Feuars of the Barony but cannot exclude them as to the Liberty granted by the King to Ryve out a 1000. Aikers it clearly evinceth that they had not the Property before neither did that take any effect nor could it because the common Pasturage constitute to the Feuars before would have hindered any posterior power of Tillage As to the Decreet against the Tennents of Haining it is in absence the Heretor for the time not being callâ—d and albeit it bears Hainings Predecessor as Provost to be present that will neither import his Consent nor Knowledge Countrey Gentlemen being then ordinarly Provosts of Towns who lived not with them their Affairs at Law were Managed by their Town Clerk and Baillies though the Provosts Name behoved to be insert neither did this Decreet take effect for Hainings Tennents never ceased to pasture as to the Letters they do only acknowledge the towns Head Rooms because in great Commonties it is ordinar for several proprietars to have peculiar Places most convenient for them where they law their Cattel and casts Fail and Divot and which doth sufficiently consist with the Commonty as for the Acts of Court they can prove nothing against Haining The Lords found that the Town of Selkirk had undoubted Right of Pâ—sturage Fewel Fail and Divot in this Commonty and that they had immemorial Possession thereof without any interruption and found that Haining had no Right by vertue of Possession and Prescription but found that by vertue of his Charter anterior to the Towns Right he had Right to common Pasturage in this Moor it being the Common Moor of the Barony but seing he did not sufficiently prove Possession of Fail and Divot but was therein continually interrupted much more then in the Pasturage and that nothing appeared that in the time of his Original Right the Feuars had priviledge of Fail and Divot Therefore the Lords found that he had no Right thereto albeit common Pasturage doth ordinarly carry therewith Fail and Divot yet they found that it was a several Servitude separable therefrom either by Consent or Custom and found that the Town should enjoy their Head Rooms excluding Haining therefrom Iames Colquhoun contra Watson Eodem die JAmes Colquhoun Pipe-maker in Glasgow having gotten a tollerance from George Blair Heretor of Lunloch to dig Clay for Pipes there for certain years excluding all others there being an anterior Tack of the Lands the Tennents grants licence to one Watson for digging Clay there for Pipes the Heretor also concurrs with Watson Colquhoun pursues Watson for Intrusion and to desist from medling with any Clay there and for paying the value of what he had medled with Watson alleadged Absolvitor First Because the licence granted to the Pursuer being exclusive of all others was contra bonum publicum 2dly The licence was posterior to the Tennents Tack who thereby had Right to the whole profits of the Ground and accordingly gave tollerance to the Defender 3dly The Heretor having granted the Tack could not in prejudice thereof give power to the Pursuer to break the arable Ground and there being much more Clay nor the Pursuer could make use of ought to give power to the Defender to make use thereof for that effect The Pursuer answered that a total and negative licence was legal as well as any other total and sole Right and it was free to the Heretor to grant the same but could do no posterior Deed contrair thereto because he had bound up his own hands thereby â— and as to the Tack whether posterior or anterior to the licence it can only give Right to the Tennent uli fruiut colonus to Manure the Ground and reap the profits thereof but cannot give him Right to any Mineral under the superfice whether Coal Lime-stone Clay c. which is reserved to the Heretor and he may make use thereof which necessarly imports that he may break up the Ground to come at it or else the Right were not reserved to him and he is most willing to satisfie the Tennents damnage by opening the Ground neither needs any reservation thereof be exprest because it s implyed in the nature of the Tack which gives only power of the Superfice Tillage Pasturage and Profits thereof but the Tennent has no power to take away part of the Ground or to give licence to any other so to do The Lords Repelled the Defenses and found the Pursuer had the only Right by the Heretors exclusive licence and that the Tennent by his Tack had no Right to this Clay and that albeit his Tack was prior to the
Pursuers licence he could give licence to no other Mr. Iohn Forbes contra Innes February 20. 1668. MAster Iohn Forbes insisted in the Cause against Margaret Innes mentioned in the 8th of Ianuary last for Mails and Duties as Assigney by Margaret Allardice who being Infeft in Liferent in principal Lands and Warrandice Lands and the principal Lands being evicted she and the Pursuer her Assigney returns upon the Warrandice Lands wherein Margaret Innes is Infeft in Liferent by her Husband who stood publickly Infeft therein upon the Resignation of Margaret Allerdices Husband and who alleadged Absolvitor because the Defender and her Husband being Infeft and in Possession these 20. years past have the benefit of a Possessory judgement and so cannot be put from her Possession till her Right be Reduced The Pursuer answered that the benefit of a Possessory judgement can take no place against a pursuit upon an Infeftment in Warrandice unlesse the Possession had been seven or more years after the Eviction for before the Eviction there could be no Pursuit upon the Infeftment of Warrandice in the same case as an Infeftment of Liferent is not excluded by a Possession during the Husbands Lifetime when the Wife could not pursue The Defender answered that the Pursuer ought in a petitory judgement to have declared the Distresse before he could put the Defender from her Possession The Pursuer answered there was no Declarator required but only the Eviction which gives immediat recourse upon the Warrandice Lands The Lords repelled the Defense and found no need of a Declarator or Reduction to attain recourse and that a Possessory judgement was not compent upon any Possession anterior to the Eviction The Defender further alleadged Absolvitor because this pursuit is founded upon Margaret Allardice her Infeftment in Warrandice which is base holden of her Husband and the Defender and her Husbands Infeftment are publick holden of the Superior and albeit posterior to the Infeftment of Warrandice yet is preferable the Infeftment of Warrandice being base never cled with Possession The Pursuer answered that Infeftments in the Warrandice are sufficiently validat by Possession of the principal Lands especially now when all Seisings must be Registrat as was lately found in the Case of Iohn Scot and the said Margaret Allardice has not only been in Possession of the principal Lands since her Husbands Death but her Husband was in full Possession of both which is more then sufficient The Pursuer answered that in Scots Case this was singular that in Iohn Scots Case both the Principal and Warrandice Lands were granted in an Infeftment and so the Person Infeft being in Possession of the principal Lands his Infeftment could not be partly publick and partly privat but this Infeftment in Warrandice is ex intervallo The Lords repelled also the Defence and found the Infeftment in Warrandice though base sufficient the Person Infeft being in Possession of the principal Lands albeit the Infeftment in the Warrandice Lands was ex intervallo Farquhar of Tonley contra Gordoun Eodem die FArquhar of Tonley pursues Reduction of a Bond granted by him upon Minority and Lesion It was alleadged Absolvitor because he had Homologat the Bond in so far as he being Cautioner in the Bond he had pursued releif and obtained Decreet for releif which did necessarly import that he acknowledged himself bound else he could not have craved releif The Pursuer answered that seing the Bond stood unreduced at that time he might lawfully pursue the principal Debitor to releive him against which he could have no objection for the benefit of Reduction upon Minority is peculiar to the Minor himself and no other can make use of it and in his pursuit of releif he might very well have declared that in case he obtained not releif against the principal Debitor he might free himself by Reduction against the Creditor so that Homologation being a tacite consent can never be presumed where the Deed done might have another intent and his pursuit for relief was not to bind himself but to louse himself he did also alleadge that the pursuit of releif was at his Fathers instance and his own promiscuously and after the Decreet was thereupon extracted he gave it in again and took a new Extract which bears not a releif for him of this Debt The Lords found the Pursuit and Decreet of releif to be no Homologation to exclude this Reduction The Defender then offered him to prove that the Pursuer was Major when he Subscribed so that the Lybel and Defence being contrary and great advantage arising to him who had the benefit of Probation by Highland Witnesses The Lords resolved to prefer neither to probation but before answer ordained to adduce such Evidents and Adminicles as they would use to prove the Pursuers age that they might prefer the strongest and clearest Probation Sir Laurence Scot of Clerkingtoun contra the Lady Clerkingtoun February 21. 1668. SIr Laurence Scot of Clerkingtoun having obtained himself to be Executor surrogat ad omissa et male appreciata of his Fathers Testament and having obtained licence to pursue pursues the Lady Clerkingtoun as principal Executrix who alleadged no Processe upon the licence because licences are only competent to Executors principal before there be any Confirmation after which the Commissars neither use nor may give licence ad omissa as was found the 14. of December 1621. Halliday contra observed by Dury The Pursuer answered that there was more reason to sustain licences after the principal Confirmation when the best of the Inventar was given up and what remained was uncertain and for the practique the Lords had since allowed licences after Confirmation The Lords repelled the Defense and Sustained the Processe upon the licence Bartholomew Parkman contra Captain Allan Eodem die CAptain Allan a Privateer having taken Bartholomew Parkman an Swede he obtained him to be Declared Pryze by the Admiral upon this ground mainly that he had carried Tar being Counterband Goods from Norway to Holland then in Enmity with the King and from thence carried ballast to France and returning with a Loadning of Salt was taken because by the Captains Commission from the Admiral he was warranted to to take Ships carrying Counterband Goods or to take the saids Ships in their immediat return after they have carried Counterband Goods to the Kings Enemies which hath always been the Custom of Scotland as appears by Commissions granted by the Admiral Anno 1627. of the same Tenor and by a Decreet of the Admiral at that time finding the Lybel relevant bearing that a Ship was taken in her return having taken in Counterband to the Enemy in that Voyage which is founded upon evident reason because that while Ships are going towards the Enemy it is but an intention of Delinquence against the King and assisting his Enemies but when they have actually gone in and sold the Counterband it is delictum Commissum and though it might infer a quarrel against the Delinquent
many Witnesses on either side proved not only that the â—eithes Lybeled by the Party who Adduced them were holden and repute the true Marches for a very long time but did not express how long but some of them Deponed that Stones in the meithes were commonly holden and repute to be March Stones and so the Testimonies were contrary and if there had not been mutual Probation either Party would have proven sufficiently and neither Party having bounding Charters the question arose whether the â—pregâ—antest Probation should be preferred to give the property to that Party and exclude the other or if both Parties proving so long Possession and mutual interruptions the Probation should infer a promiscuous Possession and Right of the contraverted peice of Land and so resolve into a Commonty albeit neither Party Claimed nor Lybeled Commonty The Lords found the Testimonies of the Witnesses to infer a Commonty to either Party of the Ground in controversie albeit they found that Sir Iohn Gibsons Witnesses were more pregnant yet not so far as to exclude the others but declared that if either Party desired that piece to de divided they would grant Commission for dividing the same and setting down of March-Stones Burnet contra Nasmith Iune 19. 1668. ALexaâ— deâ— Burnet of Carlâ—ps being Creditor to Sir Michael Nasmith of â—osso pursues a Declarator against Iames Nasmith his eldest Son to hear and see it found and declared that an expired Appryzing of the Estate of Pâ—sso now standing in the Person of the said Iames is Redeemable by the Pursuer as a Creditor from the said Iames as appearing Heir of the Party against whom it was deduced within ten years after the appearand Heirs Right upon payment of the Sums that the appearand Heir truly gave out conform to the Act of Parliament betwixt Debitor and Creditor The Defender alleadged Absolâ—itor because the Act of Parliament could not extend as to his Case because the Act bears where appearand Heirs takes Right to Appyzing of their Predecessors Lands but the Defenders Father being living cannot be said to be his Predecessor or that the Defender is his appearand Heir and Statutes are stricti juris not to be extended to like Cases It was answered that Reason of the Law given in that part of the Statute being the same and rather more in this Case where there may be Collusion betwixt the Father and the Son there is no ground to except the same from the Act of Parliament the words whereof do bear this Case for in the ordinar Stile it uses to be thus express such a person to be eldest Son and appearand Heir to his Father and albeit his Father be not dead he may well be said to be his Predecessor not only in regard of his age but as being his Predecessor in the Right of these Lands whereunto the Son is a Successor albâ—it he be a singular Successor The Lords found the Clause of the Act of Parliament to comprehend Rights acquired by appearand Heirs in their Predecâ—ssors Life and therefore declared Agnes Hadden and Mary Lawder contra Shorswood Eodem die THomas Shorswood having granted an Assignation to a Bond of 500. merks in favours of Agnes Hadden and Mary Lâ—wder they pursue Magdalen Shorswood his nearest of kin to dâ—liver the same who alleadged Absolvitorâ— because the Assignation was never delivered but being made a year before the Defunctsdeath remained by him till his death and was never delivered and it is not the Subscribing of a Writ but the Delivery thereof that makes it that Parties in whose favours it is conceived unless the Party were in Family as a Fathers Câ—stody is the Childs Custody and equivalent to Delivery and unless the Writ had contained a Clause to be valide without Delivery which this doth not The Pursuer answered that this Assignation reserveth expresly the Defuncts Liferent and a power to dispose thereof during his Life which sheweth his mind not to deliver the Assignation even when he made it otherwise the Reservation in his own favour would not have been in his own hand which sufficiently shews his mind that the Writ should be valide though not delivered in his life 2. This being a moveable sum this Assignation is in effect dâ—natio mortis causa and so must be valide without Delivery for a Testament or Legacy is valide without Delivery It was answered to the first Alleadgance that the Defunct might have Delivered the Assignation and keeped the Bond so that the keeping of the Assignation was not necessary and so did not import his meaning to be that the Assignation should be valide without Delivery To the second this Assignation is in the Terms and Nature of a proper Assignation and is a Right inter vivos and not donatio morâ— is câ—usa because donatio mortis causa is but as a Legacy affecting only the Deads part but if this Assignation had been Delivered it would have affected all and so could be no donatio mortis causa and albeit it was not Delivered it remains the same kind of Right The Lords Repâ—lled the Defenses and decerned Delivery in regard of the Tenor of the Assignation and that it was a moveable sum it being also infoâ—med that the Defunct had no Children and the said Agnes Hadden who was to have 400. merks of the sum was Cousin-german to the Defunct Relict of Galrigs contra Wallace of Galrigs Eodem die THe Relict of Galrigs pursues for Mails and Duties upon her Seasine given propriis manibus It was alleadged for Galrigs no Process because the Seasine is but assertio notarij without a Warrand there being neither a Contract nor Obligation to give such a Seasine It was answered that Instruments of Seasine given to a Wife pâ—oprâ—is manibus have a sufficient Adminicle and presumption by the Marriage and the duty of the Husband to provide the Wife especially where there is no Contract nor other Provision but most of all where the Wife Renunced her Joynture she had with a former Husband in favours of the Granter of the Seasine and his Creditors which is a strong presumption he would give her something in lieu thereof Which the Lords sustained Steuart of Torrence contra Feuars of Ernock Iune 24. 1668. JAmes Steuart as Donator to the Ward of the Laird of Ernock by the Lord Semple of whom Ernock held the Lands Ward pursues the Possessors for Removing who alleadged absolvitor because they brooked their Lands by Feues granted by the Laird of Ernock The pursuer answered non relevat unless the Feues were consented to or Confirmed by the Superiour for by the Feudal Law no deed of the Vassal can prejudge the Superiour when the Lands are Ward The Defenders alleadged their Feues needed no Confirmation because they are warranted by Law by the 72d Act K. Iam. 2. which stood valide until the Act of Parliament 1606. Prohibiting Feues granted but by immediat Vassals of the King Ita est The first Act cannot extend
to the Kings Sub-vassals because it bears only Free-holders and bears that the King shall accept of the Feu Duty during the Ward but the Ward of his Sub-vassals would never fall in the Kings hand and this meaning of the Act of Parliament is evident by the Act of Parliament 1606. bearing expresly that there was no warrand by the first Act for any Feues but such as were granted by the Kings immediat Vassals It was answered for the Defenders that they oppone the first Act of Parliament bearing expresly a general Reason of granting Feues for the policy of the Kingdom and that the King would give Example to the rest and that the Act no wayes restricteth to Free-holders of the King but others who hold of Subjects Ward are called Free-holders in opposition to Feues which is also cleared by the 91. Act Parliament 1503. The Title whereof bears a power to all persons Spiritual and Temporal to set their Ward Lands Feu which clears the meaning of the Parliament and the common custom till the year 1606. which is acknowledged in the Narrative of the Act 1606. which doth only annul Feues set to Sub-vassals in time thereafter and as to the Narrative thereof the Statutory part and not the Narratives of the Acts of Parliament which the Parliament doth not much notice are our Rules and this Narrative is contradicted by the Narrative of the Act of Parliament 1633. bearing that there is no reason why the Kings immediat Vassals should grant Feues more then Sub-vassals The Lords sustained the Feues being granted before the Act of Parliament 1606. Andrew Gray contra Howison and Gray Eodem die ANdrew Gray being Infeâ—t as Heir to his Grandsire in certain Lands of the Barony of Foules holden blensh of the House of Gray pursues a Reduction of a late Infeftment in Anno 1655. granted to Walter Watson as long Posterior to his Right Compearance is made for William Gray of Haystoun as being Infeft by the Lord Gray and Sir George Kinnard who was Donator to the Recognition of the Estate of Gray by the alienation of this Lords Father which Recognition hath been declared by the Lords and alleadged that he hath the only Right because by the Recognition the old Rights of the House of Gray being void the Pursuers Subaltern Right fell in consequence therewith The Pursuer answered that before the Defenders Right he had obtained a Precept of clarè constat acknowledging his old Right whereupon he was Infeft It was answered that the Precept doth bear expreslly to be in obedience of Precepts out of the Chancellary upon the Pursuers Retour and so being a necessar Act and not voluntar it could be no acknowledgement or Ratification of the Pursuers Right The Lords having considered the Precept that albeit it mentioned the Retour in obedience to the Precept yet it bore also quoniam mihi clare constat c. in the common strain of a Precept of clarè constat acknowledging the Pursuers Predecessors Right and his Own They found that it did exclude the Donator and all having Right from him thereafter and after the Seasine past thereon George Heriot contra Town of Edinburgh Iune 25. 1668. GEorge Heriots Father being Infeft in an Annualrent out of certain Tenements in the Canongate obtained himself to be Served Heir in special therein before the Baillies of the Canongate and because the samine is within a Regality having a proper Chappel and was not to be Retoured to the Kings Chancellary So that Precepts were not to be had out of the Chancellary against the Town of Edinburgh Superiours to Charge them to Infeft him therefore George upon Supplication obtained Letters from the Lords to Charge them and they being now Charged he pursues a Poinding of the Ground It was alleadged for the Town no Process for poinding of the Ground till the Pursuer were Infeft in the Annualrent It was answered that he having done Diligence against the Town it was equivalent and did exclude them from proponing that alleadgance It was answered that no personal objection against the Town could be a sufficient Title against this Action without a real Right The Lords found no Process till Infeftment but declared that so soon as the Magistrates should be Denunced they would grant Warrand to the Director of the Chancellary to issue a Precept for Infefting the Pursuer for supplying the place of the Magistrates and their Contumacy Black contra Scot. Eodem die ALexander Black having obtained a Decreet before the Commissar of St. Andrews against Iames Scot for 126. pounds pursues a Transferrence thereof against the Representatives of Iames Scot who alleadged absolvitor because the Decreet is ipso jure null being given by a Commissar in a matter not Consistorial far above the quantity allowed by the Injunctions and there being nothing to instruct but the Defenders being holden as confest the Decreet at least must be turned to a Libel and yet proven 2. If the Defunct had been obliged to have compeared he would not only have denyed the Receipt of the Vinegar and Grapes Libelled but he would have offered to prove and the Defender offers yet to prove that they were refused and lay publickly upon the Shore where they were disloaded 3. It was offered to be proven the Defunct was lying on Death-bed the time he was Cited to Depone and was holden as confest The Pursuer answered that albeit these Reasons were relevant to Repone a Party holden as confest to their Oath yet were not sufficient to annual the Decreet seing the Pursuer lost his Probation the Receipt of the Goods having been two years agoe and albeit this sum exceeded the Commissars Injunctions yet the violation thereof does not annual his Sentence or take away his power unlesse the samine had been objected upon Compearance The Lords found not the Defenses Relevant to annul the Decreet or to hazard the loss of the Pursuers Probation but seing the Defender burdened himself with a contrair Probation The Lords inclined to admit the same if it were sufficiently pregnant and therefore ordained the Pursuer before answer to adduce Witnesses that the Goods were never taken off the Shore but Boated there Inglis contra Laird Balfour Eodem die THere being an Un-printed Act of Parliament for uplifting the Taxt and Loan of the Shire of Fife for Relief of some Noblemen ingaged for the Shire in Anno 1661. The Council did thereafter give Commission to certain persons in the Shire to conveen the persons resting and accordingly Cited the Laird of Balfour and he not compearing ordered quartering against him he Suspends on this Reason that this being a privat and particular Act of Parliament to which he was not called is salvo jure and could not burden his Lands of Creik because he is singular Successor therein to the Laird of Creik It was answered that there is no exception of singular Successors in the Act of Parliament so that this Act being a Reviving of the
Suspenders Oâ—th or VVrit The Lords fâ—und that the granting of the Bond was no Hâ—mologation of the Decreet but that â—e might quarrel the same and that the giving of the Bond was no Transaction if he payed or gave Bond for the whole Sums contained in the Decreet but found that â—f in consideration of the Grounds upon which he might quarrel the same he had gâ—â—â—en an abatement by Arbitration or otherwise that he could not quarrel the same and found it only probable by his Oath or â—â—rit Iames Donaldson contra Harrower Eodem die JAmes Donaldson pursues Iohn Harrower as representing his Father for whom the Pursuer became Cautioner to the Lord Rollo for 100. pound for relief of the Defuncts Goods that were then a poinding for which the Defunct promised payment and did pay the Lord Rollo and produces a Testificat of the Lord Rollo's thereof and craves payment and offers to prove the Libel by VVitnesses the Libel not being above an hundred pound It was alleadged for the Defender that this being a Cautionry and a Promise it was not probable by VVitnesses especially after so long a time the Promiser being dead who might either qualifie the Promise or instruct payment there being nothing more ordinar then to Transact such Affairs without any VVrit The Lords found the Libel not probable by Witnesses Frazer contra Frazer Eodem die JOhn Frazer having obtained a Decreet against William Frazer his Brother to deliver a Tack of the Lands of Boghead granted to their Father and his Heirs to whom the said Iohn is Heir William Suspends on this Reason that he is Heir to his Father of the second Marriage and produces his Retour and produces the Contract of Marriage including a Clause that all Tacks Conquest during the Marriage should belong to the Heirs of the Marriage and this Tack being Acquired during the Marriage the same belongs to him and albeit it he conceived to the Heirs generally yet by the Contract the Pursuer as Heir general will be oblieged to Assign It was answered that this Tack was no new Conquest but had been the old Possession of the Father and the Tack bare the Lands to be presently possest by him The Lords found this Tack to fall under the Clause of Conquest unless the Pursuer prove that there was an old Tack standing which expyred not till the second Marriage was Dissolved in lieu whereof this new Tack was taken Hamiltoun contra Callender Iuly 7. 1668. JAmes Hamiltoun having taken his Debitor with Caption offered him to Iames Callender Baillie of Falkirk to be Incarcerat in the Tolbooth of Falkirk and he refusing he now pursues a subsidiary Action against the Baillie for payment of the Debt who alleadged Absolvitor because he is no Magistrate of a Burgh Royal but of a Burgh of Regality the Baillies whereof were never in custom to be Charged with Rebels The Pursuer opponed the Act of Parliament 1597. cap. 279. bearing expresly Baillies of Stewartries and Regalities according to which the Tenor of all Captions bears the Letters to be direct against all Baillies of Regalities The Defender answered that for the Letters it is but stylus curiae and for the Act of Parliament the Narrative and Reason thereof relates only to Burghs having Provest Baillies and Common Good The Lords having considered the Act of Parliament Repelled the Defense and Decerned here the Rebel was Residenter within the Burgh of Regality where there was known to be a convenient Prison Relict of William Pattoun contra Relict of Archibald Pattoun Eodem die THE Relict and Executors of William Pattoun pursues the Relict and Executors of Archibald Pattoun for Compt and Reckoning of Sums and Goods belonging to the said umquhil William Pattoun by Archibald and craves the Defender to produce Archiâ—alds Compt Books who alleadgen nemo tenetur edere instrumenta sua contra se ad fundandam â—item so that the desire was no wayes reasonable unless the Pursuer had given in a particular Charge and Litiscontestation had been made thereon in which case the Defender might have been compelled ad modum probationis to have produced the Books It was answered the contrair was found in the Compt and Reckoning betwixt the Children of George Suiâ—ty against the Representatives of William Suitty their Tutor and that there was as great reason here the two Defuncts having been Brothers and being in Copartnery together and the one Factor for the other It was answered that the case of a Tutor and his Pupil was no way alike because the Tutors Compt Book was in effect the Pupils and the Copartinery and Factory was denyed The Lords ordained the Book to be put in the hands of the Auditor and if he found by inspection thereof any Accompts appeared as betwixt Partners and Factors he should produce the same to the other Party even ad fundandam litem otherwise that the same should be given back and not showen to the Pursuer Margaret Alexander contra Laird of Clackmannan Iuly 9. 1668. MArgaret Alexander being Infeft in an annualrent out of the Lands of Sauchie by a posterior Infeftment in Corroboration of the former Right she was Infeft in that same Annualrent out of other Lands whereof she was in Possession but this posterior Infeftment being Reduced upon an Inhibition prior thereto she pursues poinding of the Ground of the Lands of Sauchie upon the first Infeftment It was alleadged for Clackmannan Absolvitor because the Pursuers Right of Annualrent is base never cled with Possession and now he is Infeft in the Lands either publickly or by another Infeftment cled with Possession The Pursuer answered that the Infeftment in the Lands of Sauchie was sufficiently cled with Possession in so far as the posterior Infeftment of Annualrent in Corroboration thereof was cled with Possession and as payment made by the Heretor by himself for his Tennents or by Assignation to Mails and Duties of other Lands in satisfaction of the Annualrent infers Possession so payment made by his Tennents by the posterior Infeftment in Corroboration can be no worse then an Assignation to the Mails and Duties of these Lands which as it payes some Terms Annualrent of the first Infeftment so it must cloath it sufficiently with Possession It was answered that here being two distinct Infeftments at several times albeit for the Annualrent of the same sum yet the Possession of the last cannot relate to the first The Lord Repelled the Defense in respect of the Reply and found that Possession by the last Infeftment did from that time sufficiently validat the first Heugh Boog contra Robert Davidson Eodem die HEugh Boog having arrested Robert Davidsons Fee as Keeper of Herlots Hospital Pursues the Town of Edinburgh to make it forthcoming It was alleadged for Robert Davidson Absolvitor because Robert Davidson had made cessionem bonorum in favours of this Pursuer and his other Creditors and thereupon was Assoilzied The Pursuer answered that a Honorum did no
wayes secure contra acquirenda unless the Assignation or Disposition had been equivalent to the Debt and satisfied it The Defender answered that that which was here Acquired was only a Fee for Service which is Alimentar and the Fee will not be due unless the Defender Serve in suitable condition effeirand to his place and therefore it cannot be made forth coming to any other use The Lords found that a Fee in so far as was necessar for the Servants Aliment conform to his condition of Service could not be reached by his Creditors to whom he had made cessionem bonorum except as to the superplus more then what was necessar and they found no superplus in this case Captain Allan contra Parkman Eodem die CAptain Allan having taken Bartholomew Parkman and obtained him to be declared Prize Parkman raises Reduction and for fortification of the Admirals Decreet of Adjudication these Grounds were alleadged First That by the Testimonies of the Steirsman and Company it was proven that three of the Company were the Kings Enemies and so conform to the Kings Declaration of War Ordaining all Ships to be seazed wherein there were any number of men belonging to the Kings Enemies this Ship was Prize as was lately found in the case of the Ship called The Castle of Riga And albeit by a former Interloquitor the Lords had not found three men to be a number sufficient for Confiscation Yet it was not then considered that the whole Company consisted but of eight so that near the third of the Sailers were the Kings Enemies and one of them the Steirsman which is a considerable proportion 2dly This Ship though pretended to belong to the Swedes yet she had served the Kings Enemies the Danes and Hollanders two years and by the Swedish Treaty it is provided quod naves nullo modo accommodentur utriusque foederati inimicis 3dly It is also proven that this Ship carried Counterband-goods viz. Tar which was not the product of Sweden but carried from Denmark to Holland and that she was taken in her return having in a loadning of Salt from France so that albeit the Ship had been empty she might have been taken Prize in that same Voyage in which she did partake with the Kings Enemies or being taken in the same Voyage in which she had carried bona hostium And lastly it was also instructed that the Cargo with which she was taken was the product of the Counterband-goods and so in the same case as if the Counterband-goods had been actually in her the product being surrogatum quod sapit naturam surrogati It was answered for Parkman to the first Ground that he opponed the Lords Interlocutor finding three Sailers no sufficient number for Confiscation And in the case of The Castle of Riga the major part at least the half were the Kings Enemies To the second Ground it was answered that the Kings Allies making use of their Ships for Fraught was no way a lending of them to the Kings Enemies and as for the remnant Goods by the Kings Declaration of War there is only given Warrand to sease Ships having in them Counterband-goods or Enemies Goods and the Swedish â—rety bears expresly si deprehenduntur so that this Ship having in her when she was taken no Counterband nor Enemies Goods is free It was answered that the Kings Declaration although it mention some cases of Seasure is not full or exclusive but the Law of Nations must take place or the Custom of Scotland in cases not exprest in the Kings Declaration And as for the Swedish Treaty it cannot be pleaded unless Parkman had a Pass from Sweden in all points conform to the Treaty but their Passes were in several things disconform as being granted when the Ship was in Holland and sent over Land And as for the Custom of Scotland to take Ships in the return of that Voyage in which they carried Counterband or prohibited Goods it appeareth by the Captains Commission and former Commissions in Anno 1628. and by a Decreet declaring a Prize wherein the same ground was Libelled that she was taken in the return of that same Voyage in which she had carried Counterband And the Lords having Written to my Lord Secretary his Letter in return bears That the Lords should decide according to the Law of Scotland It was answered for the Stranger that the particular Custom of Scotland can be no Rule for the Swedes but only the Law and Custom of Nations â— and that England nor no other Nation hath that Custom to make Seasure but in delicto otherwise all Trade and Commerce would be destroyed unless Seasure were only upon what were visibly Aboard and not upon the pretence of what had been Aboard and albeit a Delinquence once committed by partaking with the Kings Enemies might endure for a longer time Yet the Custom of Nations for the utility of Trade hath Abridged it to actual Seasure in delicto and accordingly Judge Ienkins Judge of the Admirality in England hath Attested that during this War after search of the Records and Conference with other Judges he knows not of any Prize declared but when the Counterband goods or Enemies Goods were taken actually in them And for the Decreet alleadged on albeit that Ground be in the Libel yet other Grounds are also therein and there is no Debate as to that particular Point neither doth the Probation mentioned in the Decreet clear that that Point was proven And as to the Tenor of the Commissions albeit they might excuse the Captain from Fine or Damnages yet Strangers did not nor were not obliged to know the same but the Law and Custom of Nations and the Kings publick Declaration of the War and their Treaties The Lords having considered the Debate and that the several Points were of Importance and Preparatives they resolved to take the Grounds joyntly and so found the Ship Prize as having so considerable a proportion of her Company the Kings Enemies Some also were of the opinion that she having been taken in the return was sufficient especially not having a sufficient Swedish Passâ— but the plurality waâ—ed these Points whether the returns of Enemies Goods or Counterband or whether the Product or not Product thereof were sufficient Grounds of Seasure seing it did not so appear by the Custom of Nations or the Kings Declaration of War but by the former Debate it appeared that she had Aboard when taken a small parcel of Tar. Mr. David Falconer contra Sir Iames Keith Iuly 14. 1668. MR. David Falconer gave in a Complaint against Sir Iames Keith of Caddam that he being in the exercise of his Office informing the President to stop a Bill of Suspension given in by Sir Iames Keith Sir Iames did revile and threaten him calling him a Liar and a Knave and saying if he found him in another place he would make him repent what he said The Lords having received Witnesses in their own presence and finding it proven sent Sir James
not exclude probation of Super-intromission and there being two Compts produced the Charge of the last Compt is the rest of the former Compt and the Oath relates only to the last Compt. The Lords Repelled the Defense upon the Act of Pacification which they found was only unrescinded in so far as it is contained in the late Act of Indemnity and Repelled the Defense upon the Act of Indemnity in respect of the Exception and found that the Father had not Counted duly for his whole Intromission and that his Oath extended only to the last Compt and having considered the Testimonies of the Witnesses they made a difference betwixt what umquhil Lamertoun applyed to his own use and what Corns and Cattel were carried away by Souldiers by his direction to the Army that he might be free of the latter and lyable for the former Iohnstoun of Sheins contra Isobel Arnold Iuly 22. 1668. IAmes Arnold having granted a Bond of Provision to his Daughter Isobel became afterwards Debitor to Iohnstoun of Sheins who Appryzed Arnold's Estate in Anno 1638. upon a Debt of his own and as Assigney to another Debt Thereafter Isobel Arnold on her Bond of Provision Appryzes the same Lands Sheins conies in Possession of the most part and Isobel in a small part till they both acquire the benefit of a Possessory Judgement whereupon there are mutual Reductions Sheins Reason was that his Fathers Appryzing was long prior to the Defenders and that the ground of the Defenders Appryzing was only a Bond of Provision by a Father to his Daughter which could never exclude the Fathers Creditors especially if that Debt was contracted before the Bond of Provision was granted and while it remained in the Fathers Custody and so in his power to be Reduced at his pleasure Isobels Reason of Reduction was that albeit Shein's Appryzing was prior yet there was no Infeftment thereon in Shein's person bearing to be on an Assignation to the Appryzing by Shein's to Collingtoun but any Infeftment produced is in Collingtouns Person bearing to be on an Assignation to the Appryzing by Sheins to Collingtoun which Assignation is not produced and so Shein's Infeftment flowing from Collingtoun is null because Collingtouns Right from Umquhile Shein's is wanting which is the mid-cuppling 2dly Shein's Appryzing being on two Sums the one whereof was to the behove of a Cautioner who had payed the Debt and taken the Assignation in Shein's Name to his own behove which Cautioner being conjunct Cautioner with Iames Arnold the common Author and having a Clause of relief neither he nor Shein's intrusted by him could justly or validly Appryze Arnold the Cautioners Lands for the whole Sum but behoved to deduce the other Cautioners part and so the Appryzing is upon invalide grounds and thereby is null and albeit prior to Isobel Arnold's Appryzing yet she has the only valide Appryzing It was answered for Shein's that the first Reason was not competent to the Pursuer for it was jus tertij to her what progresse Collingtoun had from Umquhile Shein's seing she Derives no Right from him 2dly This Collingtoun by his Right granted to this Shein's acknowledges that aborigine the Infeftment in Collingtoun his Fathers person was to Shein's behove which is a sufficient Adminicle in place of the Assignation and to the second Reason albeit it were instructed it could not annul the Appryzing in totum but restrict it to the Sum truly Due especially seing that Shein's was content to declare his Appryzing Redeemable by payment of the Sums truly Resting within such times as the Lords would appoint and albeit the Lords are strict in the Formalities of Appryzings when they are expired and carry the whole Estate though improportional yet during the legal they allow them in so far as they are due The Lords found Isobel Arnolds first Reason Competent and Relevant to her unlesse Collingtouns Assignation were produced or the Tenor of it proven and found the second Reason Relevant to restrict the Appryzing to the Sum truly due in respect that Shein's did of Consent declare it yet Redeemable for the true Sums But they found Shein's alleadgeance that the ground of Isobel Arnolds Appryzing was a Bond of Provision posterior in Date or Delivery to Shein's Debt Relevant to prefer him as a Conjunct Creditor for his true Debt though the Assignation should not be produced a new one from Collingtoun being sufficient Iohn Boswel contra the Town of Kirkaldy Eodem die IOhn Boswel having some Aikers in the Towns Lands of Kirkaldy and some Houses in the Town but not dwelling within the Town or Paroch nor using any Trade therein pursues the Town as having unwarrantably Stented him for his Stock and Trade he not dwelling in their Burgh 2dly For unequal Stenting him as to his Lands 3dly For Stenting him for the Towns Debts as for the Sums payed for their Erecting Harbours and some Teinds they Bought 4thly For Stenting him for the second Ministers Stipend whereas he payed the whole Teind to the first Minister nor dwelt he in the Paroch nor consented to a second Minister or to his Stipend and for unwarrantable Quartering on him and his Tennents and this since the year 1644. It was answered for the Defenders that they denyed Stenting of the Pursuer for any Stock or Trade seing he was no Inhabitant or that they Quartered on him unwarrantably but alleadged there was now no ground after so long a time to quarrel the inequality of their Stent Rolls which were made by fifteen sworn Men especially after so long a time for this preparative would be the foundation of a Debate at the instance of every Burgess against every Town in Scotland neither could there be a clear Rule as in Valuations but behoved to proceed by the Stenters Conjecture according to the common esteem of the Means and Trade of every Burgess so that unless the Complaint were against the inhability of the Stenters in due time made there could be no Debate thereafter And further alleadged that for the Towns Debts that such as were contracted for the common benefit of the Town for getting their Erection and Harbour and for the second Ministers Stipend the half of which had been payed by the whole Heretors since the year 1613. and the other half since the year 1649. that their new Kirk was Erected should burden the Pursuer proportionally according to his Land Rent The Pursuer answered that he not being an Inhabitant was not concerned in the Erection or Harbour nor in the second Ministers Stipend seing he payed his whole Teind to the first Minister The Lords found the Pursuer lyable for the half of the Stipend in regard of the immemorial use of payment but found him free for what he had not payed of the other unless it had been imposed by Authority or his own Consent and also found him free of the Personal Debt and would not Sustain Process against the inequality of the Stent Roll after so long
a time Duncan Campbel contra the Laird of Glenorchy Iuly 25. 1668. DVncan Campbel pursues the Laird of Glenorchy for Ejecting him from certain Lands and especially that his Brother by his Direction did violently cast out the Pursuers Children and Servants out of a part of the Land Laboured by himself and perswaded and enticed his Tennents to receive Tacks from and pay the Mails and Duties to him and therefore craves Re-possession and Double Mail as the violent Profits of the whole Lands during the Defenders Possession The Defender alleadged Absolvitor because he had obtained Improbation against the Pursuer of all his Rights of these Lands and others and likewise Decreet of Removing The Pursuer answered that the Defense ought to be Repelled because the Improbation was only by a Certification when he was Prisoner in Irland and the Defender by Articles of Agreement produced had acknowledged the Pursuers Right and obliged himself to Infest him in the Lands in question 2dly Though the Pursuer had but Possession without any Right he might not be Ejected but by a Precept of Ejection from a Judge which is not alleadged The Defender answered that these Articles of Agreement were never perfected nor extended and could only import a Personal Action against the Defender for extention or implement wherein when the Pursuer insists he will get this answer that he can have no benefit of the Articles being mutual until he perform his part thereof which is not done The Lords Repelled the Defence and Duply and Sustained the Ejection The Defender alleadged further that that Member of the Libel craving violent profits for that part of the Land Possest by Tennents because by the Defenders perswasion they became his Tennents is not Relevant because Ejection is only competent to the natural Possess or upon violence and perswasion is no violence The Pursuer answered that the prevailing with the Tennents was consequent to the casting out of the Defender out of his own House and natural Possession and was as great a fault as Intrusion and equivalent thereto The Defender answered that the Law has allowed violent profits only in Ejection or Intrusion which can be drawn to no other Case though it were as great or an greater fault The Lords sustained the Defence and found violent profits only competent for that part that the Pursuer Possest naturally but if the whole Lands had been an united Tenement or Labouring that the Pursuer had been Ejected out of the principal messuage of the Barony and the Ejecter had thereby gotten Possession of the whole it is like the Lords would have sustained Ejection for the whole but this was not Pleaded Lord Rentoun contra Lambertoun Iuly 28. 1668. THis day the Lord Rentouns Processe against Lambertoun mentioned the 21. Instant was Advised by the Probation it appeared that the Corns in the Girnels of Haymouth and the Cattel in the Mains of Rentoun and Horses were taken away by Lambertoun with a Troop or Troopers and that the Corns were carried to Dunss the Army being thereabout at that time whereupon the question arose whether or not Lambertoun were lyable for these which by the Probation did not appear to be applyed to his use but to the use of the Army The Lords Assoilzied him therefrom as they had done in several cases formerly upon the Act of Indemnity whereby whatsoever was acted in the Troubles by Warrand of any Authority in Being was totally discharged and the Lords did thereupon find that the Actors were not obliged to produce or show a Warrand but that it was enough the Deeds were done manâ— militari unlesse the contrair were proven by the Actors own Oath that what was medled with was not employed to entertainment of Souldiers or any other publick use but to their own private use Laird of Milntoun contra Lady Milntoun Iuly 30. 1668. THe Laird of Milntoun infifted in his Action of Reprobator wherein this point of the Dispute was only Discust whether Reprobators were competent unlesse they were protested for at the taking of the Witnesses Testimonies or whether it were sufficient to Protest at any time before Sentence or if there were no necessity at all and especially as to this Case It was alleadged there was no necessity of a Protestation and if it were there was a Protestation at the Re-examination of the Witnesses and also before Sentence It was answered that a Protestation was most necessar because the want of it was an acquiescence in the hability and honesty of the Witnesses and if it should not be necessar all Process this five years might come in question upon Reprobation which were of dangerous consequence and therefore as Incidents are not competent but when Protested for no more Reprobations as to the alleadged Protestation at the Examining of the Witnesses it is but subjoined to the Interrogators only Subscribed by one of the four Examinators who Subscribed the Testimonies and who does not remember of his Subscription so that it has been surreptitiously obtained from him as to the other Protestation the same was not when the Witnesses were taken but at the conclusion of the Cause It was answered that it was in competent time even at the conclusion and that Reprobators were not only not rejected but expresly allowed by the Pursuer by way of Action The Lords found this Reprobator competent in this Case but did not resolve the point generally whether they were competent when not at all Protested for as to which the Lords were of different Judgements but most seemed to require a Protestation ante rem Iudicatam yet so that if it were omitted the Lords might repone the Party to Reprobators if any emergent made the Testimonies suspect through inhability or corruption in the same manner as the Lords will repone Parties against Certifications Circumductions of the Term and being holden as Confest Sir George Mckenzie contra the Laird of Newhal Eodem die SIr George Mckenzie Advocat having Married a Daughter of Iohn Dickson of Hartrie they pursue a Proving of the Tenor of an Inventar of Harâ—ries Lands wherein he altered the former Substitution of his Children in several Bonds and paricularly of a Bond of 5000. Merks granted by Whitehead of Park payable to himself and after his Decease to Helen Dickson his youngest Daughter who was Married to Ballenden of Newhal and by the Inventar the Substitution was altered and the one half of the Bond appointed to pertain to Elizabeth now Spouse to Sir George Mckenzie and the other to Helen and Michael to prove that the samine was Holograph because it wanted Witnesses there was produced for Adminicles the Copy of it written by Iohn Kelloes Hand Hartries Nephew and an judicial Instrument containing the Tenor of it by way of Transumpt but there was some words of difference between the Instrument and the Copy which was Subscribed by Iohn Ramsay Hartries Good-brother and Mr. Iohn Pringle Hariries Good-son who and several others being adduced as Witnesses
his Fathers Life It is an evidence he acquiesced to his Fathers Provision and cannot seek Annualrent against his Fathers Executors his Father having Alimented him neither is he lyable for that rigor that other Tutors are The Lords Repelled the Reasons as to the principal Sum and found that the Fathers Legacy was not in satisfaction of the Grand-Fathers Legacy but found no Annualrent due but Suspended the Letters simpliciter as to Annualrent Sir Alexander Frazer contra Alexander Keith December 16. 1668. SIr Alexander Frazer Doctor of medecine having purchased the Lands of Mâ—ekelty from Andrew Frazer who had Appryzed the same from Alexander Keith pursues a Declarator of the expiring of the Appryzing and of his Right of the Lands thereby It was alleadged for Alexander Keith that he had Depending Actions of Reduction against the Grounds of the Appryzing and thereupon alleadged that the saids Sums were satisfied before the Appryzing at least by the Pursuer or his Authors Intromissions with the Rents of the Appryzed Lands within ten years after the Deducing thereof During which time the Legal was unexpired by the late Act betwixt Debitor and Creditor whereby the Legal of Appryzings led since 1652. are prorogat for three years And as to the first point he alleadged that the ground of the Appryzing being a minut of Alienation betwixt the said Alexander Keith and Andrew Frazer whereby Andrew Dispones the Lands of Miekeltie and Stranduff to the Defender the Tenor of which minute is that the said Andrew obliges himself to Infeft and Secure the said Alexander in the said Lands and to purge all Incumberances thereupon and that the price shall not be payable till the said Alexander be put in Possession There is also a Commission therein granted to the Defender to purchase two expired Appryzings and to satisfie any other Incumberances and to Serve the said Andrew Heir to Thomas Frazer his Father and to obtain the said Andrew Infeft as Heir to his Father and likewise the Defender himself in the Lands so that the Right the Disponer had being only a back Bond granted by Frazer to Staniwood thereafter Lord Frazer by which he obliged himself to Denude himself of the Lands of Mickeltie in favours of the said Andrew Disponer Which back Bond was Appryzed by the two expired Appryzings but could not reach the Lands of Stranduff because Staniwood was not Infeft therein nor did the back Bond bear the same and therefore the Defender was necessitat to purchase the Right of a third Appryzing led at the Instance of Craigivar against Andrew Frazer the Disponer as lawfully Charged to Enter Heir to Thomas Frazer his Father who died last Infeft in the Lands of Stranduff and which would have excluded any Right that the Defender had from Andrew Frazer especially seing the Sum on which Craigivars Appryzing proceeded was a Debt due by the said Thomas Frazer to William Frazer which William Frazer raised a Pursuit thereupon against the said Andrew Frazer as Representing Thomas his Father and raised Inhibition upon a Dependence which Inhibition is Execute and Registrate against Andrew Frazer before he Disponed the Lands after which Dependence the matter being referred to Arbiters they Decerned Andrew Frazer to pay to the said William Frazer two thousand merks out of the first and readiest of the price of Miekeltie due by the Defender Alexander Keith or out of any other Goods or Sums belonging to the said Andrew so that the Decreet Arbitral upon the Submission being in the same Terms was equivalent to an Assignation or a Precept and the Defender Alexander Keith satisfying that Sum it is in effect payment of so much of the price and Craigivars Appryzing proceeding on that same Sum it was most necessar for the Defender to Acquire that Appryzing as proceeding upon a Right whereupon Inhibition was used before the Minute and upon a Decreet Arbitral in effect Assigning William Frazer to so much of the Sum due by Alexander Keith The Pursuer answered that the Defenders alleadgence ought to be Repelled because the Acquiring of Craigivars Appryzing was altogether needless and no way warranted by the Minute and so cannot exhaust the price because that Appryzing was led 10. years after the Minute and the Defender having accepted a Commission to do all things necessar for Establishing of his own Right he ought to have Served the Disponer Heir to his Father and to have Infeft him in Stranduff and to have Infeft himself upon the Disponers Resignation Or if he had found that the Lands were Disponed to Frazer of Staniwood upon Trust he ought to have procured the same to have been Established in his Person as coming in the place of Andrew Frazer to whose behove the Trust was which would for ever have Excluded Craigivars Appryzing being long posterior to the Defenders Commission contained in the Minute so that it was his own fault that he suffered another to Appryze neither could the Inhibition have prejudged him though prior to the Minut in respect it was upon a Dependence upon which no Decreet in favours of the Inhibiter could ever follow the Cause being Extinct by Transaction and Decreet Arbitral neither is there any Process Extant neither is the Decreet Arbitral equivalent to an Assignation and Precept because it doth not Decern Andrew Frazer to Assign the Sum due by the Defender nor doth it declare that that Sum shall belong to him but only Decerns Andrew Frazer to pay out of Keiths Sum or any other so that thereupon no Action could have been effectual against Keith to pay the Sum but only against Frazer himself The Defender answered that albeit no Sentence of a Judge proceeded upon the Dependence the Sentence of the Arbiters being in eadem causa was equivalent and whereas it is alleadged that the Defender had a Commission to perfect his own Security by the price left in his hand It was answered that the Commission being for his own behove and for his own Security he might make use of it or not make use of it as he pleased especially seing the Disponer was obliged to perfect the Defenders Security 2dly In the Minute there was no Procuratory of Resignation neither were the old Evidents Delivered to the Defender so that he could neither obtain Frazer to be Infeft much less himself upon Frazers Resignation wanting a Procuratory The Pursuer answered that the Commission being a Mandat accepted by the Defender did ex natura mandati bind the Accepter to do Diligence neither is it to his own behove but was also to the Disponers behove that his obligements might be fulfilled and his price not stopped and although the Minute want a Procuratory of Resignation that is no way Relevant for if the Defender had required a Procuratory of Resignation from the Disponer or had required the Writs to instruct the Service being in the Disponers hand and had been refused of either he had been in no fault but without any Diligence to suffer another
and found that the Cedents Oath could not be taken in prejudice of the Assigney to astruct the verity of the Subscription unless the Assignation had been gratuitous or the matter had been litigious before the same In which case they found that there was no place to Resile after the Subscription of the first Nottar the verity and warrand of the Subscription being proven by the said Margarets Oath The Suspender further alleadged that he could not Remove because the Liferenter being year and day at the Horn he had a Gift of her Liferent Escheat and thereby had right to possess her Liferent-Land The Charger answered non relevat because the Gift was not declared 2dly It could not be declared because it proceeded upon a Horning against a VVife cled with a Husband who being sub potestate viri cannot be Contumacious or Denunced Rebel thereupon The Suspender answered that he needed no Declarator himself being in possession of the only Right to which the Declarator could reach 3dly The Horning albeit against a VVife was valid unless it had been upon a Debt contracted during the Marriage but this Horning proceeding upon a Decreet against a VVife as Executrix and vitious Intromissatrix with her Husbands Goods a Horning upon her own Fact or Fault was alwayes effectual The Lords would not sustain the Gift without a Declarator and superceeded any Extract at the Chargers Instance till a day betwixt and which he might insist in his Declarator and superceeded till that time to give answer in relation to the Horning because the Kings Officers behoved to be called Mr. Alexander Seaton contra Menzies December 19. 1668. MR. Alexander Seaton as Executor to his Brother Pitmedden pursues Seaton of Menzies as Representing his Father who was one of the Pursuers Brothers Tutors for his Fathers Intromission with the Pupils Means who alleadged Absolvitor because the Pupil after his Pupillarity had granted a Discharge to one of the Co-tutors which did extinguish the whole Debt of that Co-tutor and consequently of all the rest they being all correi delendi â—yable by one individual Obligation which cannot be Discharged as to one and stand as to all the rest for albeit pactum de non petendo may be granted to one and not be profitable to the rest a simple Discharge which dissolveth the Obligation of the Bond must be profitable to all The Lords Repelled this Defense unless the Discharge had born payment or satisfaction given and in tantum they found it would be Relevant but not a simple Discharge which could only be Relevant in so far as they by this Tutor would be excluded from the Co-tutors bearing a share with this Tutor in omissis male administratis there being nothing here but this Tutors own proper Intromission now insisted for The Lords Repelled the Defense simply Margaret Mckenzie contra Robertsons December 23. 1668. MArgaret Mckenzie pursues the Executors of her Husband to pay her share of the Moveables who alleaged Absolvitor because there was as much Debt as would exhaust the whole Moveables It was answered non relevat unless it were alleadged that the Executors had payed the Debt for the Debts being yet due it is jâ—s tertij for them to alleadge thereupon neither can this Pursuer propone alleadgances of payment Compensation or any other or the Defenders Reply upon the Debts belonging to third Parties unless they were pursuing themselves but the Pursuer is content to find Caution to repeat her share in case they were Distrest The Lords Repelled the Defense but prejudice to the Executor to Suspend upon double Poinding calling the Creditors It was further alleadged for the Defenders that they must have allowance of Sums bearing Annualrent since 1641. It was answered that no such Sums can burden the Relict her part because by the Act of Parliament the Relict has no share of such Sums if they were due to the Defunct and therefore a pari she cannot be burdened with such Sums being due by the Defunct The Defenders answered that the Act of Parliament excludes Relicts from such Sums as bear Annualrent being due to their Husbands but doth not bear that they shall be free of such Sums due by their Husbands and Statutes being stricti juris the Lords cannot extend them beyond their Sense to like cases The Pursuer answered that the Lords always did and might Explain and Extend Acts of Parliament to Cases implyed and consequent albeit not verbatim exprest and as to this Act of Parliament it bears expresly that all such Bonds shall remain in their condition as they were before the Act of Parliament 1641. quoad fiscum relictam before which the Bonds bearing Annualrent could not have burdened the Relict for the word such Bonds may not only be extended to Bonds due to Defuncts but to Bonds due by Defuncts The Lords Repelled also this Defense and found the Relicts part not to be burdened with any Bonds due by her Husband bearing Annualrent unless they had become Moveable by a Charge or that the Term of payment of the Annualrent was not come at the Defuncts death Smith contra Muire Eodem die JEan Smith having pursued Margaret Muire as vitious Intromissatrix with the Goods of George Smith her Husband to pay the sum of 110. pounds due by Bond by the said George to this Pursuer his Sister obtained Decreet thereupon and Appryzed the Liferent of the said Margaret Muire who Suspended and raised Reduction on this Ground that she could not be lyable as vitious Intromissatrix because she possest her Husbands Moveables by a Title in so far as by her Contract of Marriage she was provided to all the Goods and Gear acquired during the Marriage for her Liferent use and so she could only be lyable for making forthcoming the true value after her Death The Charger answered First That there could be no Liferent of Moveables quae usu consumuntur and all Liferents of usus fructus must be salvâ rei substantiâ 2dly Though a Liferent could consist in Moveables yet the meaning of such a Clause of all Moveables acquired during the Marriage must be understood the free Moveables deducing Moveable Debt and cannot be understood to exclude lawful Creditors The Lords found the Clause to be understood only of free Gear and not to exclude the Pursuers Debt but found it a sufficient ground to free the Suspender from vitious Intromission and to Retrench the Decreet to the true value Sir Iohn Weems contra Forbes of Tochâ—n Ianuary 2. 1669. SIr Iohn Weems having Charged Tochon for Maintainance due in Anno 1648. or 1650. conform to Act of Parliament and Commission granted to him and Decreet of the Lords Tochon Suspends on this Reason that singular Successors are free by the Act and he is a singular Successor by Appryzing It was answered that the exception of the Act was only in favours of singular Successors who had bought the Lands which cannot be extended to Appryzers who oftimes have the
Lands for far less then the true price The Lords found the Act not to extend to Appryzers unless the sums were a competent price for the Land Appryzed and therefore found the Letters orderly proceeded Isobel and Margaret Simes contra Marrion Brown Ianuary 5. 1669. BY Contract of Marriage betwixt umquhil Thomas Sim and Marion Brown Iohn Flowan Marions Master is obliged to pay 300. Merks of Tocher and Thomas Sim is obliged to imploy the said 300. Merks and 200. Merks further for the said Marion her Liferent use the said Thomas having two Daughters Isobel and Margaret Sims he lends a sum of 400. Merks to Thomas Brown and takes the Bond on these Terms to be payed to him and the said Marion Brown the longest liver of them two in Liferent and after their Decease to Margaret and Isobel Sims The said Isobel and Margaret having pursued the said Marion before the Commissars for Delivery of this Bond as belonging to them after their Fathers Death The Commissars Assoilzied the said Marion from Delivery of the Bond and found it did belong to the said Marion her self not only as to the Annualrent but as to the Stock because her Husband having no other Means but this Bond and not having fulfilled her Contract she had Confirmed her self Executrix Creditrix in this sum and behoved to Exclude her Husbands two Daughters of a former Marriage who were provided and Forisfamiliat before Of this absolvitor the Daughters raised Reduction on this Reason that this Sum could not be Confirmed not being in bonis defuncti the Father being but Liferenter and the Daughters Feears and though they were but as heirs substitute they exclude Executors and need no Confirmation 2dly The Husband being but obliged to Employ this Tocher and 200. merks more the Pursuer must instruct that the Tocher was payed 3dly The Wife intrometted with as much of her Husbands Goods as would satisfie her Provision It was answered that the Wife not being obliged for her Tocher but another Party who was solvendo and neither being obliged nor in capacity to pursue therefore could not now after so long a time be put to prove that the Tocher was payed and for her Intromission she had Confirmed and made Faith and the Pursuers might take a dative ad omissa if they pleased but could not hoc ordine Reduce or stop her Decreet upon compearance The Lords found that albeit in Form the Bond should have been Reduced as being done in fraudem of the Wife as being a Creditor and thereafter Confirmed yet now the matter being before the Lords and the Parties poor they found the Husbands Substitution of two provided Daughters by a former Marriage null as to the Wifes provision by the Act of Parliament 1621. without necessity of Reduction the matter being but a personal Right and found the Wife not obliged to instruct the Tocher payed and therefore assoilzied from the Reduction but prejudice to the Pursuers to Confirm a dative ad omissa William Zeoman contra Mr. Patrick Oliphant and Dam Giels Moncrief Eodem die IN a Compt and Reckoning betwixt these Parties anent the satisfaction of an Appryzing the Auditor in respect that Mr. Patrick Oliphant and Dam Giels Moncrief were Contumacious and compeared not did Decern conform to William Zeomans Summonds finding the Sum satisfied and ordained them to Remove whereupon William Zeoman obtained Possession and having been several years in Possession Mr. Patrick Oliphant obtained himself and the said Dam Giels to be Reponed against the said Decreet for his Contumacy and a Writer to the Signet past Letters of Possession in his favours against William Zeoman but without a Warrant from the Lords which were found null and this Writer Deposed but Mr. Patrick having attained Possession by these Letters William Zeoman insists against him as an Intruder to quite the Possession It was alleadged for Mr. Patrick that William having obtained Possession unwarrantably by Decreet upon his pretended Contumacy and he being now restored there against he is in statu quo prius before that Decreet at which time he was in lawful peaceable Possession which only should stand and neither of the unwarrantable Possessions be regarded It was answered that William Zeomans Possession was by vertue of a Decreet then standing autore pretore and so was not vitious but Mr Patricks was without Warrant of the Lords and so was most vitious It was answered that Mr. Patrick was instantly content to Debate his Right frustra petitur quod mox est restituendum It was answered that spoliatus ante omnia est restitâ—endus and is not obliged to Dispute any Right till first he be Restored Which the Lords Sustained and ordained William Zeoman instantly to be Restored to the Possession My Lord Balmerino Supplicant Ianuary 7. 1669. MY Lord gave in a Bill to the Lords Representing that his Uncle was Dead and that he is nearest Heir-male to him in whose favours his Estate is provided and therefore desired that Commission might be granted to certain Persons in the Countrey to Inventar Seal and Secure his Charter Chist and to make patent Doors in his Houses Coffers and Cabins for that effect and to take my Lady his Relicts Oath where the Evidents were to the effect foresaid Compearance being made for my Lady desiring a sight of the Bill till the next day and alleadging that it was notour to the Lords that my Lady had a Disposition to the whole Estate whereupon Resignation had past in Exchequer and that the Evidents ought to be left open to the effect my Lady may instruct her Charter conform to the Disposition The Lords refused to give up the Bill it being their ordinar Course to grant such Commissions without calling or hearing Parties and that a short delay might prevent the effect of the Commission and therefore granted Commission to certain Noblemen and Gentlemen or any one of them to Inventar Seal and Secure the Evidents and to open Doors Coffers and Cabinets for that effect but refused to give Warrant to take my Ladies Oath Captain Newman contra Tennents of Whitehil and Mr. Iohn Prestoun Ianuary 8. 1669. CAptain Newman having Appryzed the Lands of Whitehil from Prestoun of Craigmiller his Debitor and being thereupon Infeft pursues the Tennents for Mails and Duties Compearance is made for Mr. Iohn Prestoun who produces a Disposition from Craigmiller his Brother of the Baronies of Craigmiller Prestoun and Whitehil Which Disposition relates this Debt of Captain Newmans and many other Debts and for satisfaction thereof Dispones these Lands to Mr. Iohn Reserving the Disponers and his Ladies Liferent containing a Reversion upon ten merks and containing a provision that it should be leisom to Craigmiller during his Life and after his Decease to Mr. Iohn to pay any of the Creditors contained in the Disposition they pleased without contributing the price proportionally to the rest of the Creditors and also produces a Renunciation by Craigmiller whereby he Renunces the
proven they were not obliged to take Terms to produce or otherwise upon this pretence of Part and Pertinent before the samine were instructed any party might necessitate all his Neighbours to make patent to him their Charter Chists The Pursuer answered that the Defenders ought to take a Term to produce and that before Certification at that Term he would prove Part and Pertinent and alleadged the Practique in the Case of the Town of Sterling observed by Dury the 24. of Iune 1625. The Lords Sustained the Defense and would not put the Defenders to take Terms till the Lands in question were first proven to be Part and Pertinent and allowed the Pursuer to insist primo loco in this Declarator for that effect and as to the Practique alleadged they found in that Case the Defenders alleadged upon no Right whereas the Defenders propone here upon an expresse Infeftment Laird Kilburny contra the Heirs of Tailzie of Kilburny and Schaw of Greinock Eodem die UMquhile Sir Iohn Crawford of Kilburny having only two Daughters the eldest Married to Blackhal Dispones his Estate to Margaret the younger and to the Heirs-male of her Body which failing to the eldest Heir Female without division throughout all the Succession and failling the Issue of this Daughter his eldest Daughter and her Issue and failling of these Iordanhil and Kilburny their Issue all which failling his own Heirs and Assigneys whatsomever In which Disposition there is a Clause that the said Margaret and the Heirs of Tailzie should not alter the Tailzie nor Dispone or burden the Lands ' or contract Debts whereby they might be Apprized and carried from the Heirs of Tailzie otherwise the Contraveeners should lose their Right ipso facto and there should be place to the next Heir of Tailzie but there is a Clause subjoined that the said Margaret and the Heirs of Tailzie might Sell Dispone and Wodset the Lands of Easter Greinock and Carsburn and might burden the same with Sums of Money for paying and satisfying of the Defuncts Debts The said Margaret Crawford having Married the Earl of Crawfords Son Patrick they did Sell the Lands of Easter Crawford and Carsburn to Sir Iohn Schaw of Greinock at a Rate far above the ordinar Price having expected a Bargain with the Town of Glasgow for a Harbour there but the Town having made another Bargain with New-wark Greinock pursued Kilburny either to annul the Minut or fulfil the same and to secure him in relation to the Clause de non alienando and to that effect Kilburny raises a Declarator against the Heirs of Tailzie to hear and see it found and Declared that by the Right granted to the Lady by her Father she might lawfully Sell the Lands of Easter Greinock and Carsburn The Heirs of Tailzie compeared not but Greinock compeared and was admitted for his Interest which was that the Processe being for his security he might propone all the Defenses which he thought competent to the Heirs of Tailzie and alleadged that the Libel was no ways Relevant bearing a power to Sell simply but that it ought to have been conform to the Clause in the Disposition viz. to Sell Wodset or Burden for payment of the Defuncts Debts which did necessarly import that no further could be Sold then what was sufficient to pay the Debt and therefore no Processe till the Libel were so ordered and the Debts produced The Pursuer answered that he opponed the Clause having two Members one bearing with full power to Dispone the Lands of Easter Grienock and Carsburn and the other bearing to affect the same with Sums for paying of the Defuncts Debts which payment of the Defuncts Debts was but the end motive and consideration for which the power was granted but was no restriction quality or limitation of the power 2dly It did only relate to the second Member of the Clause and not to the first Member which bore with full power to Sell and Wodset c. which full power is directly opposit to a limited power 3dly Albeit the Pursuer were obliged to instruct the Debt and apply the price for satisfying thereof yet the Clause doth not limit him to Sell only so much as will be equivalent to the Debt but he satisfying the Debt more or lesse hath acted conform to the Clause which uses to be so exprest in Clauses of this nature as that the Heirs of Tailzie may Dispone so much as will be sufficient for payment of the Debt which not being exprest these restrictive Clauses being against common Law are strictissimi juris and not to be extended beyond what the words expresly bears 4thly Albeit the Pursuer were obliged to instruct that there were Debt which might be a price yet he were not obliged to instruct that they would be equivalent to this price but to such a price as were not a third part within the ordinar Rate in which latitude every Seller hath power and the alienation cannot be quarrelled and albeit that price would be more then the Debt yet these Lands being two intire Tenements which none would Buy by Parcels the Pursuer could only be comptable to the Heirs of Tailzie for the superplus The Defender answered that he opponed the Clause being one and copulative and that these Lands being put per expressum in the Clause de non alienando It could not be thought that the immediat following Clause would give the Lady as much power as to these Lands as if they had not been in the former Clause but the intent to satisfie the Defuncts Debt being the last words in the Clause is relative to the whole Clause and natively resolves into an Restriction or Quality not bearing that they night be the more able to pay the Debts but for payment and satisfaction of the Debts The Lords considering that Heirs of Tailzie were absent and that as to them the Interlocutor would be in absence found it most just and safe for both Parties to declare conform to the Clause that the Alienation was valide for satisfying the Defuncts Debts and found not that the Debts behoved to be equivalent to this price The Creditors of John Pollock contra James Pollock his Son January 21. 1669. THe Creditors of John Pollock having Adjudged his Tenement for their Debt and James Pollock having gotten a Bond of 5000. Merks from his Father payable after his Fathers death which was granted after he was Married he did also Apprize thereupon within year and day of the Adjudication The Adjudgers raise a Reduction of this Bond and the Apprizing following thereupon upon these Reasons First Because the Bond was granted for Love and Favour and albeit it bear borrowed Money yet the said Iames has acknowledged by his Oath that it was for Love and Favour and so being granted betwixt most conjunct Persons after the contracting of their Debts it is null by the Act of Parliament 1621. The Defender alleadged that the Reason was not Relevant as to such Debts
Iames his Relict who being provided by her Contract of Marriage to certain Lands with an Obligement that they should be worth 2400. merks yearly here Husband did thereafter during the Marriage grant her a Tack of the whole remanent Lands he had then with a general Assignation and Disposition omnium bonorum the Tack bears to be for Love and Favour and that the Lady may be in the better capacity to aliment his Children and bears 20. pound of Tack Duty in case there be Children and a Duty equivalent to the Rent of the Land if there be none the entry to the Tack is at the next Term after the granting thereof and not at the Husbands Death Upon this it was alleadged for the Lady that she ought to be preferred to the Mails and Duties of the Lands in question by her Tack cled with Possession by her Husbands Possession before contracting of thir Creditors Debt which must be understood her Possession stante matrimonio and by her own Possession after her Husbands Death before Chisholms Apprizing or Infeftment It was alleadged for Chisholme that the alleadgance founded upon the Tack ought to be Repelled First Because it is a Donation betwixt Man and Wife null of it self nisi morte confirmetur and so is still ambulatory and in the Husbands power during his Life and is in the same case as Bonds of Provision granted to Children and keeped by their Father which being still in his power any Debt Contracted after would be preferable thereto So here this Tack being in the Husbands power the Contracting of a Debt thereafter is preferable thereto and is an Implicit Revocation thereof 2dly This Tack being a most fraudulent latent and clandestine Deed betwixt Man and Wife whereupon nothing followed in her Husbands Life the Creditors having no way to know any such thing and having Contracted bona fide are Insnared and Defrauded thereby and the Lords having Declared that in regard they had Reponed the Lady against a former Decreet She should now Dispute her Right of the Tack as in a Reduction against which this would be an unquestionable Reason that it is a latent fraudulent Contrivance containing a Disposition omnium bonorum It was answered for the Lady to the first That Donations betwixt Man and Wife are not by Our Law and Custom null but are valid a principio unless they be actually Revocked and albeit Implicit Revocations has been Sustained by Dispositions or Infeftments of the same Lands to others yet never by a Personal Bond or Contracting of a Debt posterior To the second The Ladies Right can never be Interpret in fraudem creditorum there being no Creditors the time of the granting thereof and the Husband being free and Incapacitat by no Law an Infeftment of the remainder of his Estate to her so Cautioned as this is is both legal and favourable and albeit in the same there be a Disposition omnium bonorum which cannot reach to Goods acquired after the Debts yet the Tack is valid utile per inutile non vitiatur 3dly Albeit this Tack bear to be a Donation and for Love and Favour yet it is neither Fraudulent nor Revockable because it is donatio remuneratoria granted by the Husband who was obliged to make up the Joynture Lands contained in the Contract of Marriage to 2400. merks of which they came short of four at the beginning and other four have been Evicted It was answered for Chisholme the Creditor that this alleadgance was no ways Competent against him who is a Creditor contracting bona fide but the Lady ought to pursue her Son as Representing his Father for fulfilling her Contract or at least till that be declared against the Heir who is the only competent Party the Creditor must Possess conform to his Right 2dly Whatever was the Husbands Obligement the Husband hath not granted this Tack in Remuneration or Satisfaction thereof but expresly for Love and Favour without mention of any other Cause It was answered that the expressing of Love and Favour which may relate to the general Disposition cannot exclude other Causes and albeit it make the Tack a Donation yet it is well consistent to be a Remuneratory Donation which is not Revockable The Lords found the Alleadgance Relevant that this was a Remuneratory Donation and that there was also much wanting of the Contract of Marriage and found it competent against this Apprizer and superceeded to give answer to the other Points that if it were not proven Remuneratory whether it could be Reduced as latent and fraudulent at the Instance of posterior Creditors or as being in the Husbands power was indirectly Revocked by Contracting of the posterior Debt having no more Estate to burden with his Debt Boil of Kelburn contra Mr. Iohn Wilkie Eodem die BOil of Kelburn having gotten a Commission from the Presbyterie of Irving to uplift some vaccand Stipends he gave Bond to pay to them 850. pounds therefore and being thereafter Charged by Mr. Iohn Wilkie Collector of the vaccand Stipends Kelburn payed him 600. merks whereupon Mr. Iohn gave Kelburn his Discharge of these vaccand Stipends and of his Bond to tâ—e Presbyterie with absolute Warrandice of the Discharge especially bearing to relieve and free him of the Bond to the Presbyterie thereafter Kelburn was Decerned to make payment of that Bond after a long Debate Mr. Iohn Wilkie compeared whereupon Kelburn Charged Mr. Iohn to pay him the 850. pounds with Annualrent and Expencesâ— upon the Clause of Warrandice Mr. Iohn Suspends on these Reasons First That he was Circumveened never having read the Discharge 2dly That Clauses of Warrandice however conceived are never extended further by the Lords then to the Skaith and Damnage of the Party Warranted which if it be Componed for never so little the Warrandice reacheth no further then the Composition and it can never be extended ad captandum lucrum ex alterius damno so Kelburn having gotten Stipend worth 850. pounds he cannot seek the same back again but only the 400. pound he payed out It was answered that albeit general Clauses of Warrandice be so Interpret yet this is an express and special â—action to relieve Kelburn of this Bond which if it had been per se would have been valide although without an onerous Cause and cannot be lesse valide having so much of an onerous Cause The Lords did take no notice of the Reason of Circumvention Mr. Iohn being known to be a provident Person but Restricted the Warrandice to the 400. pounds received by the Suspender and Annualrents thereof and the Expences of Plea against the Presbyterie and found it no ways alike as if it had been a Paction apart but being a speciality in a Clause of Warrandice it was to be Interpret accordingly pro damno interesse only Lady Braid contra Earl of Kinghorne Eodem die THere is a Bond 10000. pounds granted to the Earl of Buchan Principal and the Earl of Kinghorne Cautioner to
Article of the Libel whereby Iohn Bosewel craved Repetition of what he was stented for for Charges of Commissions to the Convention of Burrows upon this Ground that the Convention of Burrows was authorized by Acts of Parliament and Commissioners is ordained to meet yearly thereat which being a burden arising from the Authority of Parliament these who have Tenements in the Town or Lands in the Burghs Lands are lyable pro rata and did again resume the Debate anent the second Ministers Stipend and being heard thereupon in presentia The Lords adhered to their former Interlocutor anent the Teinds and found nothing could make Iohn Bosewel lyable for any part of the second Ministers Stipend except what was due by Law out of his Teinds or what was due by his own consent or by custom of 40. years and found him not lyable for Charges of Commissioners of Burrows which though authorized by Parliament yet the intent thereof was Trading and though the Convention might equalise the proportion of Taxations amongst Burghs which did concern all having Land therein Yet that being a case meerly contingent they would not upon consideration thereof put any part of the burden upon these who had no Trade Iohn Boswel contra Lindsay of Wormistoun February 3. 1669. John Bosewel being appointed Commissar of St. Andrews by the King and before the Restitution of Bishops after their Restitution the Arch-bishop named Lindsay of Wormistoun Commissar and agreed him and Iohn Bosewel on these Terms that Iohn should have the half of the profit of the place whereupon Wormistoun grants a Bond to Iohn Bosewel to Compt and Reckon for the Profits of the half and to pay the same to Iohn Bosewel termly and quarterly and if any question should arise betwixt them in the Accompt that he should submit himself to the Arch-bishops determination and acquiesce therein Iohn Bosewel Charges upon his Bond. Wormistoun Suspends It was alleadged for Wormistoun that his Bond did contain a Submission to the Arch-bishop who is thereby the only Judge Constitute in these Accompts It was answered that this Bond was only Subscribed by Wormistoun himself and a Submission must be Subscribed by both Parties and that it behoved to be understood to last but for a year and not to import a Liferent Submission neither could it be exclusive of the Lords to decline their Authority The Suspender answered that this Submission being a provision in the Bond Charged on Which Bond being accepted by the Charger his acceptance makes his consent to the Submission in the same way as if he had Subscribed the same And there is no Law to exclude a Submission for two years or a Lifetime more then for one and it is not a declining of the Lords Jurisdiction it being most ordinarly sustained no Process because there is a Submission standing The Lords found that there is here a Submission not ending by a year and accepted by the Charger and that thereby the Arch-bishop in the first place ought to give his Sentence which if he refused or if it was iniquous the Lords would cognosce thereupon as in the case of other Arbiters and Assigned therefore to the Arch-bishop the first of Iune to determine thereupon Kilburnie contra Heirs of Tailzie of Kilburnie Eodem die THe Laird and Lady Kiburny did insist in the Declarator against the Heirs of Tailzie Dispute the 20. of Ianuary and according to the Interlocutor then given gave in a condescendence of Kilburnies Debt amounting to fifty one thousand pound and that the Rent of the Land did not exceed thirty six hundred merks It was alleadged that the Annualrents were here accumulate for five years after Kilburnies Death which ought not to be the Lady having Possession of the Lands and ought to have payed the Annualrent and the Clause impowering her to Sell is only for satisfying Kilburnies Debt due the time of his Death which cannot extend to Annualrents due after his Death and that these Annualrents were truly payed by the Lady and so could not come in as a Debt upon the Estate 2dly The Moveable Debts ought to be satisfied by the Executory which must first be Exhausted the Lady her self being Executrix and so cannot burden the Heirs of Tailzie or the Estate for if they had been Distrest they could have craved payment from her quoad vires inventarij so that the principal Sums not extending to 40000. Pounds and the Lands being Bought by Greinock at the Rental of 4000. Merks and 20000. Merks being gotten more for the Lands then the Debt the power of Selling granted to the Lady in the Disposition can never extend to so vast a difference albeit a small difference of the price would not be noticed and lastly it was offered to find a Party who would take a Wodset of the Lands in satisfaction of all the Defuncts Debts so that the Lady cannot in prejudice of the Heirs of Tailzie Sell where Wodsetting may do the turn and the Wodset should contain a Reversion and no Requisition and whereas it might be pretended that the matter was not intire because the Lands were actually Sold to Greinock he offered to Consent and Renunce his Bargain It was answered that this Clause de non alienando being against the nature of Property was odious and not to be extended and the faculty of Selling or affecting being suitable to the nature of Property was favourable and not to be restricted further then the Defuncts own Words and Termes who having given full power to his Daughter to Sell or affect the Lands named for payment of his Debts and not having said to Sell or burden so much of the Land as were equivalent to the Debt neither having said so much of the Debt as exceeded his Moveables or his Moveables being first exhausted it is most rational and to be presumed to be his meaning that as to his Moveables he did not burden her at all and that this part of his Lands he set apart for his Debt for he understood his Debt to be about the value of it otherwise he could have set apart less Land or could have more limited the Faculty 〈◊〉 Disposing but the principal Sums of this Debt being 40000. Pounds and the Rental not being pretended to have been above 4000. Merks the principal would amount to the value of the Land at 15. years Purchase and there being unquestionably a latitude to the Feear to Sell at such a Price as in discretion he thought fit though he had sold at twelve years purchase or not under the lowest Rate of Land neither could the Buyer be quarrelled nor the Seller as incurring the Clause irritant and therefore the Lady having Sold at a far greater Rate then the ordinar Greinock and the Town of Glasgow being both dealling for the Land they to make a Harbour there and he not to suffer them in prejudice of his Town and Harbour in Greinock there is no reason to exclude the Lady from the benefit of her
followed the Disposition is void as being causa data causanon secuta 2dly Both the Disposition and Provision in the Contract that failing Heirs of the Marriage the 1000. pound should return to Iohn VVatson were obtained by Fraud and Circumvention being granted to a Curator ante reddiâ—as rationes by a Person who lately was his Minor and who was of a weak capacity Stupide and halfe Deaf and upon such unequal Terms her Means being worth 3000. pounds as appears by a Decreet obtained at her Instance and all she got being but 1000. pounds to return to Watson in case there were no Children and nothing secured on the Husbands part The Defender answered to the first that albeit the Disposition was of the same date with the Contract of Marriage it did not conclude that it was in Contemplation of the Marriage and might be and truly was an absolute Bargain As to the Reason of Circumvention it is not Relevant although the Terms had been as unequal as they are alleadged for the said Margaret Trench might freely Dispose of her own at her pleasure and leave it to Iohn VVatson who was her Mothers Brother if she had no Children especially seing David Trinch the nearest on the Fathers side is but her Goodsires Brothers Oy and never took notice of her whereas Iohn Watson Alimented her from her Infancy and obtained Decreets for her Means and never received a Groat thereof neither was there any inequality betwixt the 1000. pound and her means for which albeit there be a Decreet in absence of a greater sum yet there are unquestionable Defalcations which being Deduced with her Aliment there will not be 1000. pounds free The Lords conceiving the Matter to be very unwarrantable on the Curators part in taking this Disposition and Substitution before his Accompts with his Minor were given up did reduce both the Disposition and Substitution not only as done in Contemplation of Marriage but as being presumed fraudulent and unwarrantable Mr. Iohn Hay contra the Town of Peebles February 19. 1669. MR. Iohn Hay Insisting in his Declarator that certain Hills Libeled were proper Part and Pertinent of his Lands Libelled wherein he stands Infeft in Property It was alleadged for the Town of Peebles that they do not acknowledge his Right of Property but they alleadge that they are Infeft by King Iames the second in their Burgage Lands with the Commonty of Priest-shiels and likewise by King Iames the fourth and that Queen Mary having directed a Commission for Perambulation to the Sheriff of Edinburgh he Perambulate their Commonty and hath set down Meithes and Marches thereof which are exprest in their Decreet of Perambulation within which their Meithes lie and that in Anno 1621. they have a Charter from King Iames the sixth of their Burgage and Commonty of Priest-shiels comprehending expresly thir Hills by vertue whereof they have been in peaceable Possession thereof as their proper Commonty by Pasturage Feuel Fail and Divot and by debarting all others therefrom The Pursuer answered that their Charters was but periculo petentis the King having formerly granted the Right of thir Lands to his Authors and the Decreet of Perambulation by the Sheriff of Edinburgh was a non suo judice the Lands not being within the Shire and for any Possession they had it was not constantly over all the year but only a while about Lambas of late and was still interrupted by him and his Authors and offered him to prove that they have been in immemorial Possession by Teiling Sowing and all other Deeds of Property and that thir Hills cannot be part of their Commonty there being other Heretors Lands interjected between the same and the Commonty of Priest-shiels so that the Pursuer ought to be preferred being in libello and far more Pregnant and specially alleadging Acts of Property by Tillage and the Defenders having Declarator depending of their Commonty and alleadged a Practique at the Instance of Sir George Kinnaird where he alleadging upon Property more pregnantly was preferred to an other in Probation alleadging Pasturage The Lords preferred neither Party to Probation but before answer Ordained a Perambulation to be and Witnesses adduced hinc inde anent the Situation of the Bounds and either Parties Possession and Interruption Lord Elphingstoun contra Lady Quarrel Eodem die THe Lord Elphingstoun pursuing Quarrel in a Tutor Compt anent the Profits of the Coal of Elphingstoun this Qâ—ere came in from the Auditors how the small Articles of uncost should be proven It was alleadged for Quarrel that such Articles could be proven no other way but by his Oath seing it was impossible either to use Witnesses or for them to remember such small particulars occurring every day especially seing it was known to all Coal-masters that such particulars were ordinarly incident It was answered for the Lord Elphingstoun though these Particulars were small yet they amounted in whole to 2000. merks and that the Tutors ought to have keeped the Coal-Grieves weekly Books wherein every particular was set down dayly as they were expeded which if they were produced and both the Tutors and Coal-Grieves Oathes were taken thereupon that they were truly so payed as they were recently set down they might be allowed but no such Book being produced the Tutor could not give a Compt thereof at random nor could his Oath in Astruction thereof be received because it were impossible for him to remember these small particulars without the Books It was answered for the Tutor that during the Dependence of this Process the Books were lostâ— which were made up by the Coal Grieves weekly but that he produced a Book made up of these Books and was willing to give his Oath that the first Books were lost and that thir Books albeit they be not direct Copies of the former Books yet that they were made up of the former and did agree in the matter with them and contained no more then they did The Lords refused to Sustain this manner of Probation but ordained Quarrel to condescend de casu ommissionis of the first Books and adduce such Proofs and Evidence thereof as he could and also to condescend who was the Writer of the latter Books that he might be Examined how he made up the one from of the other Kings Advocat contra Craw. Eodem die THe Kings Advocat pursues a Declarator of the Bastardy of one Craw. It was Alleadged for the Defenders that the Libel was not Relevant unless it had been condescended who was the Bastards Mother and offered to be proven that she was never married to his Father It was answered that not being married was a Negative and proved it self unless the Defenders condescended upon the Father and offered to prove married The Defender answered if that was Relevantâ— the most of all Scotland might be declared Bastards it being impossible after a considerable time to instruct the Solemnizing of a Marriage but Law and Custom doth require that at least it must be
them off from some Merchant and therefore payment should not be made to such Persons till they produce the Merchants Accompt and his Discharge or if it be and if these Persons interposed pay not the Merchant as in this case the loss must not be to the Merchant but to these who payed to the interposed Persons upon their hazard and if this were not all Merchants would be ruined for no Persons of quality do immediatly take off from the Merchants themselves The Lords found that these Articles in the Accompt in relation to the Petticoat and the 114. pounds which were known by the Defender or his Lady to be taken off in their Name and put in Andrew Bruce his Book were due by them and that though the same had been paid to Margaret Sinclar it was upon the Defenders peril if she paid not the Merchant They did also find that the Goods being acknowledged to be converted to the Defenders use they were lyable to the Pursuer in so far as they proved not they paid Margaret Sinclar and found the same probable by Margarets Writ or by Witnesses but found not that Ground Relevant that Margaret Sinclar was intrusted generally to take off Ware or that the Grounds alleadged did instruct a particular Warrand to take off from the Pursuer and therefore did not find the payment made to Margaret Sinclar which she failed to pay the Merchant to be upon the Defenders peril except as to the two parcels of Accompt aforesaid which the Defenders knew to be in their Name in the Pursuers Book Countess of Dundee contra Straitâ—un February 24. 1669. THe Countess of Dundee as Donatrix to her Husbands Escheat pursues Straitoun for a Sum due to her Husband The Defender alleadged absolvitor because that same day this Bond was granted by him to the Earl a Creditor of the Earls arrested to whom the Defender had made payment and obtained his Assignation and therefore as Assigney craves compensation and preference as Arrester It was answered that this Debt being contracted by the late Earl after he was Rebel it cannot burden his Escheat in prejudice of the King and his Donator for though Creditors whose Debts were due before Rebellion arresting after Rebellion may be preferred yet no Debt contracted by the Rebel after Rebellion can burden his Escheat neither by arrestment nor compensation Which the Lords found Relevant and preferred the Donatrix except as to what was due to the Defender by herself or for Drogs to her Husband which she was content to allow The Earl of Kincardin contra The Laird of Rosyth Eodem die THe Earl of Kincardin pursues the Laird of Rosyth for the Teinds of his Lands to which the Pursuer has Right The Defender alleadged that he had obtained a Decreet of the high Commission for Plantations against the Earl whereby they Decerned the Earl to Sell and Dispone these Teinds for a price mentioned in the Decreet being about nine years Purchase thereof and therefore the Pursuer cannot have Right to the Teinds themselves but only to the Annualrent of that Sum which was the price The Pursuer answered that he opponed the Decreet produced which did not de presenti adjudge the Teinds to the Defender but Decerned the Pursuer to sell them to him upon payment of the said price which can give no Right to the Teinds till the price be payed or at least offered which was never done The Lords Repelled the Defense in respect of the Reply The Earl of Annandail contra Young and other Creditors of Humeâ— Eodem die THe Earl of Annandail having obtained Assignation from Iohn Ioussie to a Sum of Money due by the Earl of Hume whereupon Inhibition was used Anno. 1634. and shortly thereafter an Appryzing upon which Aunandail was lately infeft whereupon he now pursues Reduction of the Infeftment granted by the Earl of Hume to Young as being after his Inhibition which Inhibition being auterior to the most part of the Debs Wodsets and Apprizings of the Estate of Hume and being supposed to be the leading Case that the Decision thereon might rule all the rest many of the Creditors did concur with Young and produced their Interests and craved to see the Process It was answered that they had no Interest in Youngs Right and so could not crave a sight of the Process It was replyed that albeit the Sentence against Young could not directly operate against them yet indirectly it would as being a Dicision and Practique in the like case The Lords found this no Interest to stop Process but allowed any Creditors that pleased to concur in the Dispute It was then alleadged Absolvitor because this Assignation Inhibition and Apprizing albeit standing in the Person of the Earl of Annandail yet it was truely on Trust to the behove of the Earl of Hume and if to his behove it did accresce to the Defenders as having Right from him and for evidence of the Trust they condescended upon these grounds First That the Debt was contracted 35. years since and no Diligence ever used thereupon till now except an Apprizing whereupon no Infeftment was taken till of late albeit Infeftments were taken of the Estate of Hume upon many posterior Apprizings which are now expired and will exclude this Apprizing 2dly The Assignation granted by Iousie to Annandails Father was immediatly after the Lands of Dunglasse was Sold by the Earl of Hume to the Laird of Dunglass by whom Ioussie was payed as a part of the price by Sir William Gray who was then Debitor to Dunglasse likeas Ioussies Oath being taken ex officio upon his Death-bed Depones that Sir William Gray payed him the Money albeit he knew not by whose Means or to whose use yet he knew nothing of any payment made by the Earl of Annandails Fatherâ— 3dly This Inhibition and Apprizing was never in Annandails or his Fathers Possession but still in the Possession of the Earl of Hume and his Agents and still in his Charter Chist 4dly The Earl of Annandail took a Security from the Earl of Hume for all Sums due to him or for which he was Cautioner wherein there is neither mention nor reservation of this Sum or Apprizing 5thly The Earl of Annandail has consented to many of the Creditors Rights which he would never have done if this Apprizing had been to his own behove thereby preferring others to himself the Creditors therefore craved Witnesses to be Examined ex officio upon all these points for clearing of the Trust which being an obscure contrivance can be no otherwise probable all the Actors being now Dead and is most favourable in the behalf of Creditors who if this pursute take effect will be utterly excluded for if the Inhibition Reduce their Rights the Pursuers Apprizing supervenient upon that same Sum is now expired and irredeemable The Pursuer answered he did declare he would make only use of this Right for satisfaction of the Debts due to him and for which he was
Cautioner for the Earl of Hume and was content that Witnesses should be Examined anent the Inhibition and Apprizings being still in the Possession of the Earl of Hume in his Charter Chist but not upon any other ground to take away his Assignation and solemne Right which cannot be taken away by Witnesses but scripto vel juramento and most of these presumptions are but weak conjectures no wayes inferring that Ioussie was payed by the Earl of Humes Means and the great friendship that was betwixt Annandail and Hume alleviats the same it being the cause for which Annandail forbore to take Infeftment or do Diligence thereby to allarum Humes Creditors that his Inhibition would always work his preference and on that same ground did consent to several Creditors Rights there being enough remaining for him and which was an evidence that this Right was generally known and that without it Hume could not give Security The Lords ordained Witnesse sexâ— officio to be Examined upon all the points alleadged for â—learing of the Trust. The Kings Advocat contra the Earl of Mortoun and Viscount of Grandison February 29. 1669. THe Kings Advocat pursues a Reduction of the Rights of the Earldom of Orkney and Zetland granted by the Deceast King Charles the first or by this King himself to the Earl of Mortoun or Viscount of Grandison and produces a Contract betwixt the King and the Earl of Mortoun in Anno 1643. and a Charter following thereupon whereby the Lands are granted and Disponed blench with several extraordinaâ— Priviledgâ—s as having right to the Bullion and other Customs of Goods Imported there and also a Charter in Anno 1646. by the King to the said Earl relating to a Dissolution in the Parliament 1644. containing nova daâ—tus and bearing also blench there is also produced an Infeftment granted to the Viscount of Grandison and after the said Infeftment a Ratification by the Parliament 1661. In the which Ratification there is contained a Dissolution of the Earldom of Orkney and Zetland in favours of Grandison wherein also the Dissolution formerly made in favours of Mortoun in Anno 1644. is particularly Rescinded upon this consideration that neither the King nor his Commissioner were present in the Parliament 1644. and that his annexed Property could not be Disponed nor Dilapidat without an express aâ—t of his own Ratified by Parliament After this Dissolution in favourâ— of Grandison the King granted no new Infeftment to Grandison The Advocat having holden the production satisfied with the Writs produced Mâ—â—toun and Grandison compeared not at all and some others having publick Rights from them being called did also pass from their compearance and submitted to the Kings favour and compearance being made for some of the Vassals holding of Mortoun they were not admitted because they produced no Wâ—its to instruct there Interest so the Lords proceeded to Advise the Reasons of Reduction which were upon these points First That by the Law and several particular Acts of Parlâ—ament the Patrimony of the Crown being the Lands and Customs annexed to the Crown might not be Disponed by the King unless the samine upon weighty Motives and Considerations had been Dissolved by his Majesty and the Parliament and Dissolutionsâ— made after Infeftments are not valide Parliament 1597. cap. 236. and by the 234. Act of that same Parliament the annexed Property can not be Seâ— otherwise but in Feu Ferm so that the Earldom of Orkney being annexed to the Crown by the annexation produced in Process and the Contract and Charter 1643. being before any Dissolution is absolutely null and the Infeftment in Anno 1646. albeit relating to a Dissolution in Anno 1644. yet no such Dissolution is found in the Records and though it were it is Rescinded in the Ratification in favours of Grandison in the Parliament 1661. upon so weighty a Reason as the King or his Commissioner not being present And because the Parliament 1644. is Rescinded by the Parliament 1661. wherein albeit there be a salvo of privat Rights yet that cannot reach to the Patrimony of the Crown especially seing in that same Parliamentâ— 1661. His Majesty having Revocked all Deeds done by Him or his Father since 1637. which by the Laws of the Nation he might not do to the Derogation of his Honour or Crown the Parliament has Ratified the same Revocation as to all Rights granted since 1637. Contrair to the Laws and Acts of Parliament preceeding 1637. and likewise by an express Act of Parliament it is provided that no Ratification in Parliament shall prejudge the Crownâ— or supply a Dissolution and that none of the Kings Customs which are also annexed can be effectually Gifted The Lords found these Reasons Relevant and proven and Reduced all the Rights produced before the Dissolution in Anno 1661. since which there is no Infeftment granted Pargilleis contra Pargilleis February 26. 1669. UMquhile Abraham Pargilleis having no Children but one Bastard Daughter Dispones some Lands acquired by him to Abraham Pargilleis eldest lawful Son of that Daughter Iohn Pargilleis his Brother Son and nearest Heir pursues a Reduction of that Disposition as being done in lecto and the Defender alleadged that the Defunct went abroad to Kirk and Mercat thereafter unsupported and the Pursuer replying that he was supported and either Party contending for Preference the one that he walked free of himself and the other that he was supported The Lords considering the advantage to the Party that had the sole Probation would prefer neither but before answer ordained Witnesses to be adduced for either Party concerning the Condition the Defunct was in as to Sicknesse or Health when he Subscribed the Disposition and the manner of his going abroad whether free or supported and now the Lords having Advised the Testimonies by which it was proven that the Defunct was Sick the time of the Subscribing of the Disposition and that he continued Sick till his Death It was also proven that he went unsupported a quarter of a Mile when the Seisine was taken six days after the Disposition and that after the same he went three times to Calder and about three quarters of a Mile off and that he was helped to his Horse and from his Horse and that he was helped up Stairs and down Stairs but that he walked a foot unsupported in the Mercat of Calder and up and down from my Lords House being three pair of Buts of rising Ground It occurred to the Lords to consider whether the Sickness proven would have been sufficient not being â—â—orbus sonticus or in extremis or whether the presumption of Health sufficient to leige poustie was enough that he came out to Kirk and Mercat albeit the Sickness remained and whether the probation of the Sickness remaining could take away that presumption and whether his being helped to his Horse and from his Horse or up and down Stairs and his Man holding his Bridle as he Rode to and returned from Calder did infer that
was no Fraud or Deceit qualified they repelled the Reasons and Decerned Fairie contra Inglis Iune 24. 1669. AT the Reporting of the former Interlocutor yesterday Fairie against Inglis It was further alleadged for Inglis that he offered him to prove by Fairies Oath that he was Circumveened in granting of the Ratification because Fairie upon that same Design drank him drunk Which Alleadgance the Lords Repelled in respect of the Bond and first Ticket wherein he Declared upon his Soul and Conscience never to come in the contrary Steuart of Gairntilly contra Sir William Steuart Eodem die SIr William Steuart having granted a Bond upon thir Terms that whereas he had obtained Disposition of the Lands of Innernytie partly by his Fathers Means and partly by his own and partly for granting the Bond underwritten and therefore he obliges himself to Infeft Iean Steuart his Sister and the Heirs of her Body which failzying ocertain Persons Substitute his Brethren and Nephews and a part of it tâ— return to himself and obliges himself to pay the Annualrent yearly to the said Iean and the Heirs of her Body and other Heirs of Tailzie foresaid during the not Redemption of the said Annualrent then there is insert a Reversion of the Annualrent from the said Jean and her foresaids by the said Sir William upon the payment of 20000. Merks and then a Clause of Requisition that if Jean after her Marriage desire the Money she or her foresaids might require the same to be paid after her Fathers Death and then a Clause that the said sum of 20000. should not be payable till five years after her Fathers Death and after her own Marriage The said Jean Assigns this Bond to her Brother Sir Thomas and he Charges Sir William who and some of the other Substitutes Suspends on these Reasons First That by the Conception of the Bond it was clear the principal Sum was not payable till Jeans Marriage and she being Dead unmarried is not now payable at all whereupon the Charger insisted for the bygone Annualrents and for granting an Infeftment of annualrent to him as Assigney conform to the Bond The Suspenders Reasons against the annualrent were first That this being an annualrent accessory to a principal Sum ablato principali tollitur accessorium so that the principal Sum being now not due to any by Ieans Death Dying unmarried the annualrent also must cease from her Death 2dly The annualrent is conceived payable to Iean and her Heirs but no mention of Assigneys 3dly Albeit ordinarly in such Obligations or Infeftments following thereon the first Person is Feear and the Substitutes are but Heirs who cannot come against the Feears Deed by Assignation or otherwayes yet where the Obligation is gratuitous and proceeds not upon sums of Mony belonging to the Creditor but upon the free Gift of a Parent bestowing the Sum there the Substitution implys a Substitution and Obligation upon the first Person and the Heirs of their Body to do no voluntar Deed to evacuat the Substitution so that albeit a Creditor or Successor for a Cause onerous might exclude the Substitutes yet another Heir appointed by the first person or a Donator or gratuitous Assigney cannot evacuat the Tailzie and exclude the Substitutes because in such Contracts uberrima fidei the mind of the Party who Gifted and freely granted the sum is chiefly to be considered so that it cannot be thought to be old Gairntillies mind that his Daughter might Change the Substitution and elude the Conditions of the Bond for the Suspending of the Requisition of the principal Sum till Iean were married must import that his meaning was to give her the Annualrent only till that time and the principal Sum to be a Tocher if she married which was to no purpose if the Annualrent remained perpetual for then the Heretor would certainly Redeem to purge his Land as he had done and the Sums Consigned would belong to the Assigney and the Clause Suspending the payment thereof if Iean married not signified nothing sed verba sumenda sunt cum effectu and the meaning of the Parties and conception of the Condition Suspensive must be preserved The Charger answered that he opponed the Bond wherein without all question Jean was Feear and the Substitutes being the Heirs of Tailzie cannot quarrel her Deed but are bound as Representing her to fulfil the same and albeit Ieans Assigneys be not exprest yet they are ever included where they are not expresly excluded neither is this Annualrent stated as a meer accessory because the Requisition of the principal Sum may be Discharged or may become by the Suspensive Clause ineffectual as now it does and yet the Obligement or Infeftment of Annualrent remains a perpetual Right though Redeemable at the Debitors option neither is there by Law or Custom any difference or exception whether the Annualrent be gratuitous or for a Cause onerous and for the meaning of the Father procurer of the Bond it must be understood as it is exprest only to exclude the lifting of the principal Sum by Iean upon the Clause of Requisition if she were not married and if his mind had been otherways it had been easie to have adjected a restrictive Clause or in stead of the Substitution to have set down a Provision that if Iean died unmarried the annualrent should belong to her Brothers and Sisters nominat but this being an ordinar single Substitution hath neither expresly nor implicitely any Condition or Obligation upon the Feear not to Dispone The Lords Repelled the Reasons of Suspension and found Iean to be Feear of the Annualrent and that she might assign the same and that the Substitutes could not quarrel the same Kennedy and Muir contra Iaffray Eodem die MR. Iohn Iaffray being presented to the Parsonage and Viccarage Teinds of Maybol and having obtained Decreet conform there is a double Poinding raised by the Heretors and Possessors of Fishartoun Mr. Iohn Iaffray craves preference as Parson and so having Right to the whole Benefice the other party called is Grange Kennedy and Muire of Mank-wood who craved preference on this Ground that the Teinds of Maybol was of old a part of the Patrimony of the Nunry of North-Berwick and the Prioress for the time with the consent of one Nune who was then only alive set a Tack thereof to Thomas Kennedy of Bargany and Gilbert Kennedy his Son and to Gilberts first Heir and after all their Deaths for three nineteen years The Prioress having thereafter at the Kings Desire Resigned the Teinds of Maybol to be a Parsonage did in her Resignation except the Tack set to Barganie which was alwayes cled with Possession and was assigned to David Kennedy of Ballimore and Transferred to Mr. Iohn Hutcheson and by him to Kennedy and Muir as to the Teinds of Fishartoun whereupon they crave preference It was answered for Iaffray that by their Right produced there is related another Tack granted by Mr. James Bonar Parson of
young Garner was then an Infant in his Fathers Family and albeit the Right be granted by his Uncle yet it is necessarly inferred to be Acquired by the Fathers Means because it bears not for Love and Favour but for Sums of Money and the Uncle had Bairns of his own It was answered that albeit the Right had been Acquired by the Fathers Means yet its anterior to the Apprizing and Sums on which it proceeds whereupon nothing can be taken away but what is posterior thereto albeit there were a Declarator and Reduction intented for that purpose as there is none The Lords Sustained the alleadgeance and Reduced the Apprizing as to these Tenements 2dly The Pursuer alleadges the Apprizing as to Lady-kirk must be Reduced because the Pursuers produce a prior Infeftment granted by Iohn Garner to his Wife in Liferent and his Bairns in Fee it was answered that the said Infeftment was base never cled with Possession The Pursuers Replyed that the Fathers Liferent not being Reserved the continuation of Possession was as lawful Administrator to the Pursuers Bairns and if need be 's its offered to be proven he had a Factory from them The Defender answered that a Fathers Possession being continued was never found to validate a base Infeftment granted to his Children albeit his Liferent were expresly Reserved but it s ever accounted a latent fraudulent Deed and a Factory can be of no more force then a Reservation otherwise it were impossible to obviat fraudulent conveyances betwixt Fathers and Children The Pursuer answered that albeit such Reservations are not valide in Rights freely granted by Fathers yet it meets not this case especially where there was an anterior Onerous Cause Iohn Garner being obliged by his Contract of Marriage that what Lands he should Acquire should be to his Wife in Liferent and to the Bairns of the Marriage The Lords found that the Bairns Infeftment granted by their Father albeit he had Possest by a Factory from them was not cled with Possession or sufficient to exclude a posterior publick Infeftment and that the Clause in the Contract was but to substitute the Children Heirs to their Father in the Conquest Here it was not alleadged that the Factory was made publick by Process founded at the Fathers Instance or otherwise in this Process The Defender to satisfie the Production of an Assignation upon which the Apprizing proceeded which the Pursuers offered to improve as false in the Date and the Defender now produced another Assignation of the same Date and declared he abade by the same as of that Date and that it being a missing he had caused the Cedent to Subscribe another of the same Date with the first which did expresly bear Reservation of another Assignation formerly Subscribed which he did also bide be as truly Subscribed but not of the Date it bears but of the Date of the true Assignation insert therein The Lords Sustained the Assignation now last produced and did not quarrel the other Assignation though another Date was insert then when it was Subscribed for the Cause foresaid Alexander Glasse contra Iohn Haddin Eodem die ALexander Glasse and William Reid having a proper Wodset of the Lands of Alairtnenie and Iohn Haddin being also Infeft in an Annualrent forth thereof some days prior compet for the Maills and Duties Haddin alleadged that both infeftments being base from the same Author his Infeftment of Annualrent is preferable because prior and first cled with Possession It was answered any Possession he had was by a Factory from Glass It was replyed that he offered to prove Possession before that Factory It was duplyed that by Haddins back Bond produced bearing expresly that Glasse had had a valide Right to the Maills and Duties of the Lands and that he was in Possession thereof and that Haddin had accepted a Factory from him and was obliged to compt to him for the Maills and Duties without any Reservation of his own Right this was an unquestionable Homologation and acknowledgement of the Right and equivalent to a Ratification thereof The Lords found by the back Bond produced of the Tenor foresaid that Haddin had so far acknowledged Reid and Glasses Right that he could not quarrel it upon his own Right but he proponing that there was a Reservation of his own Right related to in the back Bond the Lords found the same Relevant he proving Possession before the other Party and before the Factory The Old Colledge of Aberdeen contra the Town of Aberdeen Iuly 13. 1669. THe Principal and the remanent Members of the old Colledge of Aberdeen having Set a Tack to Doctor Dun of his Teinds during the Principals Life and five years thereafter and bearing an Obligement to renew the like Tack from time to time for ever The Doctor Mortified the same to the Town for plous uses after the Death of that Principal many years The Colledge now pursues the Possessors of the Lands upon an Inhibition for the full value of the Teinds and the Town Defends upon the foresaid Tack It was answered for the Colledge that the Tack is only for the Principals Life and five years after which is expired and as for the new Obligement to renew such Tacks for ever It was answered First Albeita Tack were conceived in these Terms it would be null as wanting an ish 2dly Obligements of the present Incumbents in Universities are not obligator but where there is an equivalent Cause Onerous Received for the good of the University It was replyed for the Town that an Obligement to grant a Tack by them who can grant it is equiparat to the Tack it self which requires no other solemnity as an obligement to grant an Assignation is equivalent to an Assignation and that there is here a Cause Onerous of the Universities Obligement because the Tack bears expresly 300. Merks of grassum and that the former Tack-duty was only ten Merks which by this Tack is made 50. Merks and albeit it want a desinit ish yet it must be valide for a Renovation during this Principals Life and five years after and it is Homologat by the Colledge who have received the same Duties several years since the first Tack expired It was duplyed for the Colledge that this Tack is not valide for any time after the first ish because by the Act of Parliament 1617. Tacks by beneficed Persons under Prelats are prohibit for longer time nor their own Life and five years after and these Teinds are a part of the benefice Mortified to the Colledge and they must be accounted as beneficed Persons and albeit the Teinds were augmented to 50. Merks yet they are worth 200. Merks and for the Receipt of the Duties after the first Tack it is per tacitamrelocatiâ—nem and no Homologation of the Obligement to renew the Tack The Lords found that the Colledge was not comprehended under beneficed Persons but found that there was no sufficient Cause Onerous alleadged for this Obligement of Renewing
from the Marquess of Hamiltoun upon Blackwoods Resignation and upon the Resignation of two Apprizers in Anno 164â— The Marquesse then having a Right to the Superiority granted by the King in Anno 1636. Which albeit it was not then valide because the Lands were then annexed to the Crown by the Act of Parliament 1633. and were not Dissolved yet the Major having taken Infeftment as to his part his Heirs could not quarrel the Superiority though the King might and now the King and Parliament by the Act 1661. having declared such Rights of Superiority valide as to these Vassals who had or should Consent and the Duke having gotten a new Right of the Superiority since the Act the former Consent is valide Likeas William Lowry Blackwoods Father and Tutor gave a Bond that so soon as the Duke should obtain the Superiority the Son should become Vassal The Defender alleadged that his Fathers Bond was only effectual against his Father but not against himself and his Father never being Feear of the Estate his Bond could never be a Consent of the Vassal neither can the Consent of any Tutor or lawful Administrator be sufficient to give such a Consent which is not an Act of Office or Administration and as to the Infeftment taken by Major Ballantine First The simple taking of Infeftmen from a Lord of Erection by the Vassals of Kirk-lands cannot import their passing from the King and the benefit of the Act of Annexation so that they may not return to the King thereafter neither can it be such a Consent as it is meant in this Act of Parliament otherwise the King and the Leidges should both losse the benefit of the Annexation seing most part of the Vassals have continued to take Infeftment of the Lords of Erection through ignorance or inadvertance finding their Infeftments flowing from the Lords of Erection and in respect that the Lords of Erection have still Right to the Feu-duties till they be Redeemed which being a common Error that they may safely so do till the Redemption and yet may still take Infeftment from the King when they please it were a very evil consequence if thereupon they should not only lose the benefit to be Vassals to the King but by disclamation lose the Property 2dly As to this case it cannot be presumed but Major Ballantine is in the same case with other Vassals of Kirk-lands and also in this much better case that he is in a manifest and palpable Error in so far as the Disposition that he takes from the Apprizers bears expresly that the Apprizers are informed that the Marquess of Hamiltoun was Superior and their Procuratory bears warrand either to Resign in the Kings hands or the Marquess hands or in the hands of any other lawful Superior and Blackwoods Procuratory in the Contract of Marriage bears warrand to Resign in the hands of the King the Marquess of Hamiltoun or the Earl of Roxburgh who had Right of Erection before the Marquess or any other lawful Superior so that by Resigning in the Marquess hand it is evident that the Resigner and the Major believed that the Marquess was Superior whereas he was not any Right he then had being absolutely null by the Act of Annexation 1633. and the King was the only Superior yea by the taking of that Infeftment he incurred disclamation unless it were excused by his error but the Consent requisit here must be such as the Party knowing the King was his Superior did choose to interject another Superior and become his perpetual Vassal It was answered for the Pursuer that the acceptance of the Infeftment as it is now stated can be no Error because it is evidenced by the Apprizers Rights now produced that they hold of the King and were Infeft by him and yet the Major took the Infeftment upon their Resignation in the Dukes hands likeas the Rights produced relate to the Right of Annexation which being a most publick Law and recent at that time cannot be thought but to be known to any at that time ignorantia juris neminem excusat It was answered that the Error was the greater that the Apprizers Infeftment was holden of the King seing in their Disposition and Procuratory they mention they were informed the Marquess was Superior and therefore the Procuratory is to Resign in the hands of the King the Marquess or any other lawful Superior and the other Procuratory is in the like Terms so that the Accepter of the Writs did not intend nor do any new or free Deed in favours of the Marquess but did only that Deed that they supposed was necessar and so did not by this Infeftment make the Marquess Superior as that his Right should be valide by their Consent but did take the Right from the Marquess as being Superior before they took it which was an palpable Error so prejudicial to them that it might infer disclamation if it were not excusable upon Error and if it had been intended that the Major minded to make the Marquess his Superior where he was not there is no doubt but it would have been exprest in the Right it self being so great a deference to the Marquess and would not have been past over in common Form neither can it be thought that this was procured by the Marquess upon accompt and favouring the Major the Infeftment being granted by the Lady Marquess as her sons Commissioner he being then in England and having no great influence then being the time of the Troubles of the Countrey It was answered that the other Vassals of that Barony did voluntarly Accept the Marquess as their Superior and gave Bonds for that purpose which are produced and it is most like that Blackwood hath given Bond which hath been lost or given up to him upon taking this Infeftment which is an implement thereof The Lords did not see that the single taking of the Infeftment from a Lord of the Erection did import his Consent to become Vassal thereby for ever or that he might not thereafter return to the King neither did they find such a Consent as is meant in the Act of Parliament but considering the whole Circumstances of this Case and especially the Fathers clear Bond who procured and settled the Controverted Right of this Estate for his Son then an Infant they found there was no Error but a choise of the Marquess to be Superior in place of the King and therefore declared Lesly contra Cunningham Eodem die LEsly having Arrested certain Sums for payment of a Tack-duty due to him It was alleadged for the Party in whose hands Arrestment was made that the Arrestment could not reach any further then for the Tack-duty Arrested which was due the time of the Arrestment but not for any Term following the Arrestment because Arrestment being a Legal Execution can no more proceed upon a Debt before the Term that the Debt be due then Apprizing and further alleadged that they had made payment
him and all danger and that he would be loath to bid him do any thing would do him harm whereupon he did Subscribe as VVitness and saw not the Tutor Subscribe at all nor saw not his Name put to the VVrit at that time and that this was not at the Barns of Towy the time of the Lairds Death as the Date of the Paper bears but at Achready five weeks thereafter Ferguson Deponed that Captain Barclay having been his Tutor he induced him to VVrite over the Bond of 100000. Pounds whereof he had formerly gotten a Draught from Iames Midletoun Notar wherein Debitor Creditor Sums and Date were blank and that he filled up Umquhâ—â—â— Towy Debitor and the Captain Creditor and the Sum 100000. Pound and put in a Date as if it had been before the Lairds Sickness albeit it was truly after his Death and that the Captain shew him Towies Subscription in a Letter and caused him feinzâ—e it to the Bond as near as he could and likewise Depones that the Captains Brother was the other VVitness but that he saw not what the Deponent had done nor knew not thereof He also Deponed that he filled up the Date and insert the VVitnesses in the Disposition of the Estate of Towy at the Captains desire and made the Date to be at the Barns of Towy at the Lairds Death albeit it was done at Achready about a Month or twenty days thereafter and that there was no Subscription put thereto at that time but that the Captain told him that he would get the Tutor to put his Hand to it thereafter and that the Deponent refused to Subscribe VVitness because the Tutors Name was not thereat Upon these Testimonies both these VVitnesses and Steel who was formerly out upon Bail were put in Prison Henderson contra Anderson November 18. 1669. HEwat having made a general Disposition of his whole Goods and Geir to Anderson and thereafter having Disponed to Henderson his Creditor Henderson pursues Anderson for Reduction of his Disposition as being fraudulent in prejudice of Creditors without any equivalent Cause Onerous contrare to the Act of Parliament 1621. against fraudulent Dispositions The Defender aâ—leadged that the Reason was not Relevant upon the said Act because Hewat and Anderson were not conjunct persons and because his Disposition buir an Onerous Cause viz. for Sums due to himself and for 2000. Merks and other Sums for which he was Cautioner for Hewat and gave in a condescendence of the particular Sums and offered not only to Depone thereupon himself but to astruct the same by the Oath of Hewats Creditors to whom he payed The Pursuer answered that albeit ordinarly Dispositions amongst persons not conjunct bearing Causes Onerous were sufficient yet this Disposition being manifestly fraudulent in that it is omnium bonorum which the Receiver thereof could not but know to be in prejudice of the Disponers other Creditors to whom there was nothing left and so is particeps fraudis and likewise the Sum of 2000. Merks which is the only Cause specially exprest being instructed to be false by Discharges of the most part of that Sum by the Creditor to Hewat himself the remainder of the Cause being general ought to be instructed not by Andersons Oath but by sufficient Probation at least the verity of the Debt by Hewats Oath and the payment thereof by the Oaths of Hewats Creditors to whom it was payed and that it wa payed by Anderson before the Disposition at least that he was bound for payment thereof before the Disposition The Defender answered that Dispositions of Moveables are valide without any VVrit especially before any Diligegence done by the Pursuer and if these who acquire Moveables were obliged to instruct the Cause otherwise then by their own Oaths all Commerce would cease and the Defender having taken a Disposition in VVrit can be in no worse case then if he had none The Lords having considered the Defenders condescendence found that what waâ— due to the Defender himself by Hewat before the Disposition should be sufficiently instructed by Anderson's own Oath but as to what was due to him or payed by him for Hâ—wat after the Disposition and before any Right or Diligence of Hendersons that the same should also be allowed being instructed by Howats Oath and these who received the Sums and that accordingly Anderson should accompt for the whole Goods he meddled with and pay the superplus thereof to Henderson the Pursuer over and above the saids Articles The Creditors of Cowper and Balmerino contra My Lady Cowper November 25. 1669. THe Deceast Lord Cowper having made a Disposition of his whole Estate in Fee to his Lady and thereby having excluded the Lord Balmerino his appearand Heir therein Balmerino being unwillingly to Enter Heir to Cowper before he knew whether the Disposition would stand or not moves some of Cowpers Creditors and some of his own Creditors having Charged him to Enter Heir to Cowper to insist in the Reduction of the Disposition made to the Lady as being done by Cowper in lecto agritudinis It was alleadged for the Lady no Process at the Creditors of Cowpers Instance First Because they insist only upon Personal Bonds granted by the Lord Cowper and have no real Right to the Land and so cannot Reduce a real Right but upon a real Right So till they have Apprized the Lands they have no Interest 2dly Albeit Cowpers Creditors might Reduce the Disposition as betwixt conjunct Persons without an onerous Cause yet not upon the Reason ex lecto because that is a priviledge particularly competent to Heirs but not to Creditors as they are Creditors unless by real Diligences they state themselves in place of the Heir and so make use of his Right and Priviledge It was answered for the Pursuers that in that they were Creditors they had sufficient interest to crave it to be declared that the Estate of Cowper should be Affected with Apprizings upon Cowpers Debts due to them notwithstanding this Disposition which is all the Effect of this Reduction and as they may without any real Right Reduce or Declare as aforesaid upon the Act of Parliament 1621. against fraudulent Dispositions so they may declare that any Disposition done on Death-bed as it could not prejudge the Heir so it cannot prejudge the Creditors of the Defunct or his appearand Heir but that they may affect the said Estate with their Legal Diligences It was answered for the Defender that she repeats the former Defense And further alleadges that she is content to take off the interest of Cowpers own Creditors and to Declare that the Disposition shall be burdened with their Debts but adhered to her Defense against Balmerino's Creditors who though they produce an Apprizing yet it is posterior to the Summons and their Personal Debts can be no sufficient Title nor is there any produced It was answered for Cowpers Creditors that the Declarator in their favours was no way sufficient nor would not give
his own and was not in his Family and albeit he were not eager to put his Father out of Possession of his House and Lands yet his continuance of Possession is not Relevant unless it had been to his death or for a longer time but any delay that was is because it is but of late that the Doctor hath obtained special Declarator till which he was not in capacity to discontinue his Fathers Possession Neither can Members of Court be admitted to prove that the Father wared out the Expence and procured the Gift because the Doctor at the passing of the Gift gave a Back-bond that he being satisfied of the Debts due to him and the Expences thereof there should be place for the Rebels Creditors and did make Faith at the passing of the Gift that it was to his own behove after which no Winesses can be admitted against him nor any other presumptive Probation of the simulation of the Gift Which the Lords found Relevant and found also the Pursuers Reply upon the Back-bond alleadged granted by the Doctor to his Father Relevant to be proven by the Doctors Oath only Sir Iohn Vrquhart Supplicant December 7. 1669. SIr Iohn Vrquhart gave in a Supplication to the Lords bearing that he being Cited before the Council upon several alleadged Riots and fearing that he might be excluded from appearing in his own defense by hornings against him therefore desired that the Lords would grant Suspension of all Hornings against him ad hunc effectum only to give him personam standi in judicio but prejudice to the Creditors of all other execution Which desire the Lords granted as to all Hornings he should condescend upon Pittrichie contra Laird of Geight December 15. 1669. MAitland of Pittrichie having obtained the Gift of Recognition from the King of certain waird-Waird-lands held by the Laird of Geight of His Majesty pursues Declarator of Recognition upon Geights Alienation of the Lands wherein compearance was made for the Purchasers thereof who alleadged Absolvitor because the time of their Alienation by the Law and custom in force for the time Such Alienations without consent of the Superiour were valide The Pursuer answered that any Law or Custom that then was is now Annulled and Rescinded as from the beginning The Defender answered that no Laws of whatsoever Tenor can be drawn back by invalidat Deeds done by the Law and Custom for the time especially as to Matters Penal such as Recognitions so that Parties having acted bona fide according to any thing they could know for a Rule cannot fall in the Penalty and certification of Recognition which imports a contempt of the Superiour and cannot be inferred by any Deed legal for the time The Pursuer answered that the contempt is the same when the Vassal alieâ— natâ— his Fee without the Superiours consent and when such Alienations being by Law become void and the Superiours Right of Recognition revived the Vassal did not after that time crave the Superiours Confirmation as Heir so he Laird of Geight having never sought Confirmation from the King since His Restauration it is no less contempt than if since the Kings Restauration he had Alienat especially seing the King refuses Confirmation to none who demand it It was answered for the Purchasers that the Vassal being Denuded in their favour according to the Law standing for the time his fault cannot lose their Right for though he should collude against them yet that ought not to prejudge them and there being no obliegment upon the Vassal to seek a Confirmation to the behove of the Purchasers they cannot be prejudged for not obtaining the same The Pursuer answered that the Purchasers might have craved the Kings Confirmation of their Right both for themselves and in name of Geight the immediat Vassal which Geight neither would nor could oppose The Lords Repelled the Defenses in respect of the Reply that no Confirmation was craved neither by the Vassal nor Purchasers his Sub-vassals which they might have done if they had pleased and therefore declared the Lands to be Recognosced Innes contra Innes Ianuary 5. 1670. Innes having granted an Assignation of an Heretable Bond of 6000. merks 4000. merks thereof to Robert Innes his eldest Son and 2000. merks thereof to William and Ianet Inness his younger Children and in case of Roberts Decease providing his part amongst the rest equally Ianes having died before Robert her Heirs and Roberts Heirs compet for the sum for Robert died without Children and William as Heir to Robert claimed the whole sum upon this Ground that Ianet being substitute by the Father to Robert without any mention of Ianets heirs Ianet having died before Robert she had never right and her Substitution became absolutely void and her Heirs not being exprest this Substitution cannot extend to them because though ordinarly Heirs are comprehended though not exprest qui acquirit sibi acquirit suis yet here is no Acquisition but a voluntary Substitution whereby it may be rationally conjectured the mind of the Defunct was that he would prefer Ianet to Roberts Heirs of line not being Heirs of his Body but not that he would prefer Ianets Heirs which were a degree further from his own other Bairns And the case of Substitutions in the Roman Law was urged that if the Substitute died before the Institute the Substitutes Heirs have never place It was answered that Institutions and Substitutions with us do far differ from the Roman Substitutions whereby if the Institute succeed the Substitute has never place as Heir to the Institute but the Institutes Heirs whatsomever which failing the Institute is there interpret so that if the Institute never be Heir then the Substitute has place as Heir of Tailzie and provision to the Substitute so that here Ianets Heirs are Heirs to Robert who had no Heirs of his Body and do exclude William his Brother and though Ianets Heirs be not mentioned yet they are understood and comprehended because in Tailzies and Provisions there uses never to be an Institution or Substitution of a single person without the Heirs of their Body And though there be some singular Cases in which Heirs not being exprest are not comprehended this is none of them It was further alleadged for William that William and Ianet being Substitute joyntly Ianet deceasing before Robert her share accresces to him jure accrescendi ex conjuncta substitutione It was answered that there is here only substitutio conjuncta verbis but disjuncta rebus for the sum is declared to belong to William and Ianet equally so that each of them has but Right to a half The Lords preferred the Heirs of Ianet and found that they had Right as Heirs of Provision to Robert and that they ought to be served to him and not to Ianet who had never Right her self having died before she was or could be Heir to Robert Elizabeth and Anna Boids contra Iames Boid of Temple Ianuary 6. 1670. JAmes Boid of Temple in his
but a verbal Promise not in Writ it can be no more effectual than if it had been a verbal Tack which is only effectual for a year and thereafter the Setter may resile It was answered that here there is a Tack by the Husband for several years and the Wifes promise never to quarrel it needs no Solemnity in Writ but is valid as pactum de non petendo or de non repugnando The Lords found the Wifes Promise effectual and that she might not resile during the years of the Tack Lady Lucia Hamiltoun contra The Lands of Dunlap and Pitcon and the Creditors of Hay of Montcastle Ianuary 15. 1670. LAdy Lucia Hamiltoun being assigned to a Bond of 4400. merks grantted by George Hay of Montcastle to the Earl of Abercorn she Inhibits the said George and Denunces and Apprizes his Lands of Birklands and others and thereupon pursues Reduction against Dunlap and Pitcon and certain other Creditors in favours of whom there is a Disposition granted of the saids Lands by George Hay and insâ—sts on this Reason that albeit the Disposition bear to be for sums of Money and Causes onerous yet by a Clause therein it is expresly declared that it is granted to Dunlap and Pitcon for satisfying of the Debts due to them and to the effect they may sell the Lands for payment and satisfaction of the said Iohn Hay his other Creditors under-written for the sums after-specified after which words there was left a large blank which by ocular inspection is now filled up with another hand than he who Wrote the Body of the Disposition and which Article so filled up is in the same case as if it had been set upon the Margent and subscribed or as if it had been in a several Writ wanting Witnesses and cannot be holden to be of the same date of the Disposition but must be presumed to have been filled up after the Pursuers Inhibition and after she had Denunced and Apprized the Lands and therefore as to these Creditors so filled up their Rights which are granted by Dunlap and Pitâ—on the intrusted Persons long after the Pursuers Inhibition and Appryzing the same ought to be Reduced It was alleadged for the Creditors Defenders that the reason as it is qualified is no ways Relevant against them First Because the Disposition granted to Dunlap and Pitcon being of the whole Lands and they Infest accordingly being long before the Pursuers Inhibition and Appryzing and the said Disposition and Infeftment being to the Creditors behove albeit their Subaltern Rights from Dunlap and Pitcon be posterior nihil referi And whereas it is alleadged that their Names and Sums are filled up in the blank after the Inhibition and Appryzing with another hand and so must be presumed of another date It is answered that the Subscription at the Foot and Body of a Writ did necessarly infer that the whole blanks were then filled up unless the contrary be proven neither uses the Names of fillers up of blanks to be exprest and it cannot be presumed that any man in prudence would subscribe a blank Writ till the blanks were first filled up 2dly Though it could be proven that the blank was filled up after the Inhibition yet the general Terms of the Clause being insert a principio with the same hand viz. for satisfaction of the said George his Creditors it is sufficient although the particulars were insert after 3dly It is offered to be proven if need beis by the Oaths of Dunlap Pitcon and the Witnesses insert that before the subscribing of this Disposition thir Creditors filled up were particularly commâ—ned on to be filled up and no other The Pursuer answered that there being here pregnant Evidences of Fraud by interposing intrusted persons and preferring of some Creditors to others by the Debitor who was Insolvent and had no more Estate in that case the filling up of the blanks must be presumed fraudulent and posterior unless the Creditors prove it was trulyâ— filled up before the Inhibition otherwise it opens a Door to all Insolvent Persons in this manner to exclude any of their Creditors from payment and to have such Clauses ambulatory at their pleasure Neither doth the general part of the Clause suffice unless it had been in favours of the Disponers Creditors generally or indefinitly which would have comprehended the Pursuer but it being only of the Creditors under-written if these were not under-written till after the Inhibition they have no place And as for any verbal Communing or Agreement it cannot be effectual until it be redacted into Write which was not till after the Inhibition The Lords found that the blank being filled up with another hand and so substantial a Clause and the Writer not being exprest at the foot that it was to be presumed to be posterior to the Inhibition unless the Creditors prove by the Witnesses insert or others above exception that it was truly insert before the Inhibition and Apprizing wherein they would not admit the Oaths of the Persons intrusted and they had no respect to the alleadgeance that it was Communed and Agreed upon before the Subscription Doctor Balfour and his Spouse contra Mr. William Wood. Ianuary 18. 1670. UMquhil Mr. Iames Wood having been Tutor to his Wifes Daughter she being now Married to Doctor Balfour they pursue Mr. William Wood as Representing his Father for a Tutor accompt in which Accompt the Auditors reported these Points 1. The Pursuer insisted for the whole sums bearing Annualrent whereof no part belongs to the Wife as Relict she being excluded by the Act of Parliament The Defender answered that he opponed the Testament and Confirmation unreduced whereby there is a Tripartite Division of the whole Sums and the Relict has one Third which belonged to the Defunct Tutor her Husband jure mariti The Lords Repelled this alleadgeance and found that the Errour of the Confirmation was Corrigible without Reduction 2. The Defender alleadged that he was not comptable for the Annualrent of one of the Sums acclaimed because by the Bond it was provided in Liferent to the Relict whereto his Father had right jure mariti It was answered that the Tutor had given several Discharges of that Annualrent as Tutor and not as Husband and so had Homologat and acknowledged the Pupils right to the Annualrent It was answered that the Discharge was so granted by errour and mistake falsa designatio non obest ubi constat dere and offered to prove by the Bond that the Wife was Liferenter Which the Lords found Relevant Andrew Hadden contra Nicol Campbel Ianuary 25. 1670. ANdrew Hadden having Charged Nicol Campbel upon a Bond Subscribed by him as Cautioner for Samuel Meikle Gold-smith Nicol Campbel Suspends and raises Reduction on this Ground that he being an illiterate man and could not subscribe he was induced to be Cautioner for Samuel Meikle but on these express Terms that he should only be Cautioner for 1200. merks and accordingly he gave order
of Captain Barclay and that some of them were Subscribed no Witnesses being present but that he had bidden the Captain put in what Witnesses he pleased and that whereas before he had declared that he had Subscribed no Disposition yet he had done it being in the power of the Lady Towies Friends who told him that Captain Barclay being next Heir-male of Towie had a mind to take his Life which he found afterward not to be true and was willing to do any Deed for conveying of the Estate to the Captain seing he had no Heirs-male of his own The Clerks of Exchequer Advocats and several Writers and their Servants were also Examined upon Oath anent the having of the said Disposition and Bond The Clerks of Exchequer Deponed that the Disposition was produced in Exchequer and Resignation made thereon and the râ—st Deponed that they had seen the Disposition and Bond and were Consulted thereupon by the Captain but had given them back to him Upon the whole Matter the Pursuer craved that now seing there was sufficient Probation of the Forgery of the Writs and that the Lords had produced before them a just double of the Disposition presented to the Exchequer that therefore the Lords would proceed to improve the same and to declare that the same were false and Forged by the Captain and that they would remit him to the Justice General according to the ordinary Custom in Improbations It was answered for the Defender that the Lords could not proceed to improve the Writs because the Writs were not produced and never any Writ in Scotland was improven but when the principal Writ it self was produced neither can it otherwise be for Improbation before the Lords being ad effectum civilem to take away the Writ and Right therein the same behoved alwayes to proceed upon a particular and individual Writ which therefore behoved to be produced before the Lords and Witnesses for suppose it could be prove that a Write of such a date and such a Tenor was Fabricat and Forged at such a time and place which might inâ—er a Crime against the Forgers yet it could not take away all right by such a Writ because there might be several Writs of the same Date and the making up and improving of a false Writ of such a Date could not take away the true Writ of the same Date unless the principal Writ it self had been produced that the Judges and Witnesses might know that that was the very Writ in question And therefore our Custom hath settled and fixed upon this Remeid by allowing a Certification that if the Writs called for to be Improven were not produced they should be holden and repute as false and feinzied and should make no Faith but did not find them proven to be Forged and Feinzied but only to make no Faith as if they had been fenzied which in this Process has been done and the Lords have neither Law nor Custom to do any further 2dly Albeit the Witnesses have by their own Testimonies declared themselves to be Forgers of false Writs their Testimonies cannot prove that Captain Barclay was either Authour or accessory to their Forgery because they are socij criminis and have by their Testimony made themselves infamous as Falsers and so there is no Faith to be given to their Testimonies against any other but themselves Besides they have given partial Counsel to the Pursuer and have betrayed their Testimonies by voluntarly coming to them and declaring what they would Depone and therefore the Lords can neither Improve the Writs nor Remit Captain Barclay to the Justice as a Falser The Pursuer answered that albeit the ordinar Course in Improbations be only Certification when the Writs are not produced yet there is nothing to hinder the Lords to use extraordinary Remeids in extraordinary Cases and there can be no Case more extraordinar than this where there is an evident Tract of Forgery for taking away a considerable Estate of sixscore Chalders of Victual Improven by the very Witnesses insert and that the Writs have not been produced It is the Defenders own fault who knowing them to be false wilfully Abstracts the same and it will be a very great incouragement to Forgery if the Forger knew that all his hazard will be to suffer Certification if his Forgery take not Neither were ever Witnesses in Improbation of Writs exclude in the Civil Process as being socij criminis But if they acknowledge the Forgery thereof they were Improved though they themselves were accessory to the Forgery otherwise if Witnesses can be induced to Subscribe as Witnesses to a forged Subscription there were no possibility of Remeid seing it cannot be thought they would suffer any other to be present or that the Forger himself would consess The Lords refused to proceed to Improve the Writs not being produced or to Remit the Parties to the Justice But they did Declare that by the Processes they found Steil Ross and Ferguson the Witnesses to be guilty of Forgery by their own Confession and that they found Captain Barclay had made use of the VVrits acknowledged to have been Forged and therefore ordained these of their number that were upon the Privy Council to Represent the Case to the Council that they might cognosâ—e what furder Censure they saw just to be Inflicted and it was the privat opinion of most of the Lords that at least the Witnesses and Barclay himself should be banished But they found it not proper for them to express their opinion or prelimit the Council But withal the Lords found the Probation adduced sufficient to Declare Captain Barclay and the VVitnesses infamous and did Declare them such accordingly Iames Watson contra Agnes Simpson February 1. 1670. AGnes Simpson being Infeft by umquhil Alexander Stewart her Husband in Liferent in an Annualrent of 40. pound yearly out of the Lands of Laâ—ellethem she in Anno 1657. obtained a Decreet of Poinding of the Ground and the Tennents having Suspended on multiply Poinding calling her and James Watson and others wherein she is preferred in Anno 1666. to her Annualrent for all years bygone and in time coming In which 〈◊〉 of multiple Poinding Watson was absent Watson making use of the names of the Tennents does raise a second Suspension Anno 1668. wherein he is called on the one part and the said Agnes Simpson on the other part which now coming to be Discust it was alleadged for the said Iames Watson that the Decreet of multiple Poinding against him being in absence he ought now to be heard upon his Right which is a publick Infeftment long before the Liferenters base Infeftment or before it was cled with Possession It was answered that by the express Act of Parliament anent double Poindings It is Declared that where parties are called and compear not but intent Reduction of the Decreet that they shall never be heard against the Decreet or what the obtainer thereof has uplifted unlesâ— they shew a sufficient Cause
upon this Bond so unwarrantably filled up The Lords found the Declarator Relevant and Proven and therefore Decerned the said Bond null reserving Action against Kinghorn upon any Debt due by Kinghorn to Keith as accords Tutor of Colzean contra The nearest of Kin of the Pupil February 5. 1670. THe Tutor of Colzean having cited the nearest of Kin of his Pupil to hear and see it found and declared that the Pupils Lands were set too high and could not be keeped at these Rates and that the Tennents were in Arreir before his Tutory in great Sums which if he should exact would cast the Land waste and that it was for the good of the Pupil to set the Land at lower Rates which it might be able to pay and to quite so much of the Arreirs as the Tennents might pay the rest and be able to continue and Possess There being no compearance the Lords gave Commission to certain Gentlemen in the Countrey to Examine the Rate of the Land and the conditions of the Tennents who have reported several of the Rooms to be too high set and what ought to be given down and what behoved to be quite to each Tennent that was deep in Arreir to inable him to pay the rest and Lâ—bour the Ground The Lords approved the Report with these Qualifications First That the Tutor should Discharge nothing simply but only till the Pupillarity were past that himself and Curators might then proceed as they saw Cause and that the Tutor before any Abatement of the Rooms should cause make Intimation at the Mercat Cross of the Jurisdiction and at the Paroch Church that such Lands were to be set at such a place such a day and whoever bade most for them being sufficient Tennents should have them and that at the said day if a better Rate were not gotten the Tutor might then or thereafter set at the Rates contained in the Commission Daniel Cathcart contra Mccorquodail and Mr. Iames Mirk February 8. 1670. Mccorquodail having Married the Daughter of Mr. James Mirk he and the Barron of Mccorquodail his Brother are obliged to pay yearly 600. merks to the Wife after the Husbands Death and Mr. James Mirk is obliged to pay to Mccorquodail 7000. merks of Tocher Mccorquodail being Debitor to Daniel Cathcart Writer in Edinburgh in 600. merks He arrests the Tocher in Mirks hands and pursues to make forthcoming and for instructing produces the foresaid Contract of Marriage It was alleadged for Mirk that he is not obliged to pay or make furthcoming the Tocher unless his Daughter were secured in her Jointer for the Tocher and Jointer being the mutual causes of the Contract neither Mccorquodail nor any deriving Right from him by Assignation or Arrestment can demand the Tocher till they secure the Jointer and that exception is Relevant both against Mccorquodail and his Assignies It was answered for the Pursuer that if it had been provided by the Contract that the Tocher should have been employed for the Wifes security the Defense had been Relevant or there might be some pretence if there were an obligement upon the Husband to secure the Wife in Land or Annualrent for 600. Merks But the Contracters having agreed for no security for the future but having agreed upon a Personal security viz. of the Husband and his Brother the Husbands part of the Contract is performed and the Husband is no ways Creditor till his Death Which the Lords found Relevant and in respect of the conception of the Contract as aforesaid Repelled the Defense and Decerned Iohn Scot contra Alexander Cheisly and David Thomson February 9. 1670. IOhn Scot pursues a Declarator of Circumvention against Alexander Cheisly and David Thomson bearing that Alexander Cheisly having a Processe against the Magistrats of Glasgow for alleadged hindering the Executing of a Decreet and imprisoning him and being in an evil Condition in his Means he proposed to the said Iohn Scot his Good-brother that he must make use of his Name as Assigney to that Process lest his Creditors might affect any thing that might be obtained thereby and that Iohn Scot should give a Back-bond declaring that his Name was put in the Assignation upon Trust. In stead of which Back-bond he caused draw up a Bond bearing that forsomuch as Alexander Cheisly had Assigned Iohn Scot to a Process against the Town of Glasgow therefore and for other good Causes and Considerations Iohn Scot obliges him to pay to a blank Person 3850. Merks in which Bond Alexâ—nder Cheisly filled up David Thomsons Name and which Bond was obtained by Alexander Cheisly by gross Circumvention upon the absolute Trust the said Iohn Scot reposed upon the said Alexander for clearing whereof he condescends on these Points viz. that the said Iohn Scot was Goodbrother to the said Alexander Cheisly had been his Prentice and the said Alexander was his Curator and the said Iohn Scot is known to be a simple Person and the said Alexander Cheisly to be a subtile Person ready to take advantage Likeas it is evident that he did take advantage of the said Iohn Scot about that same time pretending that he was more able to act Iohn Scots Affairs then himself he procured Assignation from Iohn Scot to Bonds of twenty eight thousand Merks and put in the Assignationâ— Clause of absolute Warrandice albeit by a Back-bond of the same Date it be clear that the Assignation was only granted for Love and Favour and for Agenting the Matter and that the one half should belong to Cheisly for his pains and the other to Scot but prejudice to Scots obligements in the Assignation which could be no other but the Warrandice whereby albeit Cheisly knew that a part of the Debts were payed to Scots Father and a part was insolvent and that Scot who was Assigney by his Mother as Executrix had no more himself but Warrandice from her Deed yet by the absolute Warrandice he intended to be sure of the one half of the Sums although it s known that hardly the half will be recovered whereby Cheisly should have all and Scot who freely granted the Assignation should have nothing but less than nothing by being obliged to make up the half though so much were not recovered of the whole 2dly All the pretence of the Plea against Glasgow could never amount to 3850. Merks yet the Bond is conceived for absolute payment of that Sum albeit it was a meer Plea depending many years and Debated without success 3dly Cheisly himself did ever keep the Process and Assignation and did transact the Plea or a great part thereof with the Magistrats of Glasgow and got payment In this pursuit there was no Compearance for Cheisly but it was alleadged for David Thomson that whatever had past betwixt Cheisly and Scot no ground of Circumvention betwixt them could be Relevant to take away his Right who seeing the blank Bond filled up with his Name by Cheisly before it was brought to him and given to him
the Mails and Duties for the Cropt and year 1667. Achtertire insists for the Duties of the Cropt 1667. which are payable at Martimess 1667. The way of payment of the Rent of those Lands and many others being that the Tennent enters at Whitsunday and payes his Rent at Martimess thereafter for the whole year and if he remove at the next Whitsunday he payes no Rent at that Term but leaves his Corns Sowen by him upon the Ground which he Shears after his removal Whereupon it was alleadged by Sir Iohn Drummond that this way of payment being aforehand Duty whereby the Tennent payes at Martimess before he Sowes the Cropt for the Cropt of the year of God subsequent to the Martimess that therefore Sir Iohn entering at Whitsunday 1668. and having Right to the Duties due for the Cropt and year 1668. he has Right to the Duties due at Martimess 1667. because that Duty albeit not payable in the year 1668. yet is payable for the Cropt 1668. seing the Tennent if he were removing at Whitsunday 1668. would for the payment made at Martimess 1667. carry free with him without any payment the whole Corns of the Cropt 1668. so that if Sir Iohn should enter to the void Possession of the Land at Whitsunday 1668. he should have no benefit of the Cropt 1668. but only of the Cropt 1669. It was answered for Achtertire that he has the only Right to the Rent payable at Martimess 1667. and Sir Iohn can have no Right thereto because his entry being but at Whitsunday 1668. he can have no Interest in the Cropt then Sown and standing on the Ground unto which no Buyer did ever pretend but the Seller if he be in natural Possession takes always with him his own growing Cropt even after the Buyers enters into Possession and so do all outgoing Tennents and so did Achtertire at his entry which being at Whitsunday 1656. he lifted the Duties due at Martimess thereafter but lifted not the Martimess Duty of the Cropt 1655. payable before his Wodset and therefore now he must lift the Rent due at Martimess 1657. or otherwise he wants a years Annualrent and if Sir Iohn Drummond should lift a years Rent due at Martimess 1667. and an other years Rent due at Martimess 1668. he should have two full years Rent of the Land within half a year of his entry which was at Whitsunday 1668. and which can never be understood except it had been clearly so expressed by the Parties neither is there here any further forehand Duty then what ordinarly Tennents paying Silver Rent and not Inlayed or Rentalled Victual entering at Whitsunday do for they pay the one half of there Rent at Martimess thereafter and the next half at the Whitsunday following that Martimess and for his years Rent they must have a years Cropt both of Grass and Corn and all the difference here is that the Rent due for the Possession from Whitsunday 1667. to Whitsunday 1668. is payable together at Martimess 1667. in the middle of the year whereas if it had been according to the ordinar course of Silver Rent being payable half at Martimess 1667. and half at Whitsunday 1668. Sir Iohn Drummond who entered but at the Whitsunday 1668. could have no Right to the Rent even payable at Whitsunday 1668. so neither can he claim it when it is payable jointly at Martimess 1667. The Lords found that Achtertire had Right to the Rent payable at Martimess 1667. and that Sir Iohn Drummond had Right to no part thereof Ierdan of Apilgirth contra Iohnstoun of Lockerby Feb. 24. 1670. APilgirth having Apprized Lockerbies Estate and pursuing on the Apprizing Lockerby alleadged that the Apprizing was satisfied at least he offered presently what was defective in this Accompt Lockerby alleadged upon a Wodset Right whereof an order was used whereupon the question arose and was reported by the Auditor whether after order used for Redemption of a proper Wodset the Sums Consigned being immediatly taken up by the Redeemer and the Wodsetter remaining four or five years in Possession thereafter and Declarator of Redemption being obtained upon production of the Sums consigned with the Annualrent from the Consignation whether the Wodsetter had Right to the Mails and Duties and might refuse his Annualrent or if he behoved to accept of his Annualrent and compt for the Mails and Duties It was alleadged for the Wodsetter that the Consignation was but simulat and the Money remained not in the Consignators hand so that he did justly retain the Possession and so was not comptable for the Duties The Lords found the Wodsetter comptable for the Duties seing he had no objection against the legality or verity of the order so that it was his fault that he keeped not the day of Consignation and Received his Money conform to the premonition and that the user of the order did no wrong to take up the Money out of the Consignators hand seing Consignations are upon peril of he Conâ—igner he making the same forthcoming at the time of Declarator with Annualrent since the Consignation George Graham contra The Laird of Stainbires Feb. 26 1670. GEorge Graham Merchant in Edinburgh Pursues the Laird of Stinbires for a Merchant Compt taken off partly by his Umquhile Father before his Decease and partly by his Factors and Servants thereafter It was alleadged as to the Defuncts Part of the Accompt the samine was not pursued within 3. years of the off-taking and therefore it is only probable by Writ or Oath of Party The Pursuer answered that he was ordinar Merchant to the Defunct for many years and that this was a current Accompt to the Defunct and his Heir the Defuncts Funerals having been taken off at his Death and the other subsequent Furniture to the Heir always since so that there is not three years betwixt that part of the Accompt that is for the Funerals and the last of the current Accompt given off to the Defunct and therefore it remains a current Accompt as to both 2dly There is not threeâ— year betwixt that part of the Accompt furnished to the Defunct and the Summons raised against his Heir deducing the year and day in which the â—eir could not be Pursued which is intra annum deliberandi The Defender answered that the currency of an Accompt was never extended to a Defunct and his Heir but only to one Person to exclude the prescription of probation by Witnesses neither in this short prescription is Minority or any other incapacity to be deduced and the Pursuer ought to have raised his Summonds intra annum deliberandi though he could not have obtained Decreet The Lords Sustained the Compt both against the Defunct and Heir as an current Accompt to be proven by Witnesses for the whole Doctor Hay contra Marjory Iameson Iune 8. 16670. DOctor Hay as Heir to his Father who was distressed as Cautioner for Con of Artrachy pursues a Reduction and Improbation of all Rights of the Lands of
Artrachy and others proceeding from Con in favours of Iohn Stuart Advocat William Neilson Mr. Iohn Alexander and Marjory Iameson his Relick or Andrew Alexander Brother to Mr. Iohn wherein there was produced an Apprizing against Con at the instance of George Stuartâ— Likewise a Liferent-seising of Helen Kinaird Relick of Con with a Liferent-tack to her of the Lands contained in the Seising and also of other Lands and another Tack of two nineteen years of the same Lands There is also produced a Disposition of the Apprized Lands by George Stuart to William Neilson and because William Neilson failzied in payment of four thousand Merks of the price George Apprized the Lands again from William Neilson and upon all these Rights there is publick Infeftments there is also a second Apprizing at the instance of Andrew Alexander long after George Stuarts Apprizing from Neilson but no Infeftment thereon and there is produced a Disposition by George Stuart as returning to the Right by the second Apprizing made to Mr. Iohn Alexander Advocat and by him to Marjory Iameson his Spouse and publick Infeftments on these and there is a Decreet of Cerification Extracted contra non producta And now the Doctor insists on this Reason of Reduction that George Stuarts first Apprizing against Con the common Debitor was satisâ—ied by Intromission within the Legal and so is extinct and all the subsequent Rights depending thereon fall therewith in consequence It was alleadged for the Defenders that George Stuart having in his Person the Apprizing and finding Helen Kinaird Cons Relick in Possession of a great part of the Lands by Liferent infeftment and a Liferent and two ninteen years Tacks which would have excluded him he purchased Right and Assignation thereto from the Relick and continued her Possession thereby and did ascrive his Possession to the Liferenters Right and not to the Apprizing so that his intromission being by another and more valide Title could not be ascrived to the Apprizing to extinguish it The Pursuer answered that the Defense ought to be Repelled because he had obtained Certification against the Defenders of all Rights not produced and albeit the Liferenters Seising be produced yet the Warrand thereof the Charter or Precept was not produced so that it is now declared as false and feinzied and the Seising being only the Assertion of a Nottar without a Warrand is no Title to which the Intromission can be ascrived and therefore it must be ascrived wholly to the Apprizing The Defenders answered First That albeit the Charter be now improven for not production yet it being a true Evident and now produced the effect of the Certification cannot be drawen back to make George Stuart countable who Possessed bona fide cum titulâ— which though now improven yet the effect of the improbation can only be a sententia lite contestata aut â—â—ta before all which the Liferenter was Dead and the intromission ended unless the Charter being produced had been by Witnesses or otherwayes proven to be false 2dly Albeit Certification be obtained against George Stuart and Marjory Iameson yet the Certification is not against Andrew Alexander from whom Marjory hath purchased Right after the Certification and produced the Appryzing at Andrews instance against Neilson and alleadges that albeit the Certification could take away George Stuarts Right in so far as concerns Marjory Iameson or her Authors yet that being no annulling of their Right by being Transmitted in favours of the Pursuer but only as being void through want of the necessary Evidents it cannot impede Andrew Alexander against whom no Certification is obtained to Defend George Stuart his Authors Right and to ascribe George his Possession to the Liferent Infeftment whereof he now produces the Charter The Pursuer answered that he was not obliged to take notice of Andrew Alexanderâ— Right because it was incompleat no Infeftment following thereon and because it was null being deduced against Neilson after Neilson was Denuded by the Appryzing led against him by George Stuart and Infeftment thereon so that the Pursuer having prevailed against George Stuarts Right which is the only valide Right and did exclude Andrew Alexander by the Rule vinco vincentem c. and if this were otherwise Sustained no Improbation could be effectual unless all the invalid and imperfect Rights were particularly improven which cannot be known and was never done 3dly Certification being Extracted against George Stuart himself all Subaltern Rights flowing from him fall in consequence and so Andrew Alexanders Right which is but incompleat and latent The Defender answered that albeit Andrew Alexander was not called or Certification taken against him as a party necessar yet before Conclusion of the Cause he has a good interest to produce his Appryzing and to alleadge that the Certification against George Stuart his Author who neglected to produce the Liferenters Charter could not prejudge him as deriving Right from George Stuart as a singular Successor much less could the neglect or Collusion of Marjorie Iameson prejudge any other but her self and therefore craved that if the Lords would Sustain the Certification of the Liferent Charter against Marjorie Iameson that it should be without prejudice to Andrew Alexander as to his Right of the said Liferent or to George Stuarts Right of the Liferent in so far as the same is Derived to Andrew Alexander The Lords adhered to the Certification in so far as concerned Marjory Iameson reserving Andrew Alexanders Right and his Authors in so far as concerned Andrew Alexander as accords This Cause being again Called the 9. of Iune the Defenders ascribed their Possession to the Liferent and two nineteen years Tacks against which there was no Certification The Pursuer answered First That the Liferenter having bruiked by a Liferent Infeftment and having ascribed her Possession to it it being improven she could not ascribe her Possession to the Tacks quia ex pluribus titulis ejusdem rei nemo fit Dominus 2dly George Stuart the Appryzer having both the Appryzing and these Liferent Rights in his Person and not having declared his mind by what Title he possessed his Possession must be attribute titulo nobilioti to the Apprizing and his intromission imputed thereto duriori â—orti as the Lords use ordinarly to do in â—dium of Appryzings if the Appryzer adhere to the expyring of the Legal but if the Defender will grant the Lands Redeemable the Pursuer is content that the Intromission be ascribed to the Liferent Right primo loco The Defender answered that though George Stuart Declared not by what Title he Possessed yet his intromission must be ascribed potiorâ— juri to that Right which was preferable and so to the Liferent which would undoubtedly exclude his Appryzing and therefore he acquired Right from the Liferenter being then in Possession and it is unquestionable that any party who hath many Titles though they first make use of one if that be Reduced they may make use of the rest and
more and even before Contracting of the Creditors Debt her Infeftment must stand valid seing it was less than what was her Right The Lords found the Vitiation of the Contract to have been after the Marriage and Sustained the Declarator and ordained the Ground to be Poynded for what she wanted of her Infeftment of 700. merks for bygones and for the whole in time coming unless it were proven by the Wifes Oath that she consented to the alteration of her Contract Margaret Livingstoun contra Burnâ— Iune 15. 1670. MArgaret Livingstoun as Donatrix to the Bastardy of a Mason in Falkirk pursues a Declarator of the Bastardy and Restitution of the Goods against Burns who alleadged no Process because the Libel condescending upon the Bastards Father and Mothers Names and that the Defunct was Bastard the same must be proven by VVitnesses and so the Summons must be continued it being a known Maxime that all Summons not instantly verified either by Presumption or Probation by VVrit but which must be proven by VVitnesses or Oath must be continued The Pursuer answered that albeit ex alundante she had condescended on the Bastards Father and Mother yet whoever were Father and Mother that they were not Married together is a Negative and proves it self and needs no further Probation but is presumed and puts the burden of Probation upon the Defender that they were really Married at least so holden and repute 2dly Albeit Probation were necessar that the Defunct was either Bastard or so commonly repute the Probation may proceed upon the first Summons in favorem Fisci and is so accustomed in Declarators of Bastardy and in Declarators of Non-entry wherein though the Death of the Vassal be Libelled yet the Summons is not continued The Lords found that the Summons behoved to be proven that the Defunct was at least holden and repute Bastard and that Bastardy was not presumed but they Sustained the Declarator without continuation and that the Declarator might proceed upon the first Summons Scot of Thirlestoun contra The Laird Drumlanrig Eodem die SCot of Thirlestoun having Adjudged cerrain Lands Charges Drumlanrig Superiour to receive him who Suspends and alleadges he ought to have a years Rent conform to the late Act of Parliament 1669. It was answered that this and all other Acts have Effect ad futura But not only this Adjudication was led before the Act but Drumlanrig was Charged before the Act and having no just reason to Disobey the Charge when he was Charged he cannot claim the benefite of a subsequent Law It was answered The Tenor of the Act was Declaratory and bear a general Clause that Adjudications should be in all things as Apprizings The Lords found that seing the Act did not expresly relate to bygones It could not extend to any Adjudication whereupon a Charge was given before the Act. Lord Iustice Clerk and his Son Sir Alexander contra Earl of Hume Eodem die THere being a Contract betwixt the Earl of Hume and Iohn Stuart of Coldinghame and Francis Stuart sometime Earl of Bothwel whereby the Lordship of Coldinghame was agreed to be possest by the Earl of Hume until he were payed of nineteen thousand Pounds and also that the Earl should uplift two hundreth pound Sterling of Annualrent â—orth â—hereof to him and the Heirs-mail of his Body and it was Declared that the Possession for the nineteen thousand pound should only be for the Annualrent thereof fructibus non computandis in sortent Sir Alexander Hume as having Right to this Contract by progress did pursue a Declarator against the late Earl of Hume that in regard his Predecessor the Earl of Hume Contracter Died without Heirs-male of his Body and he continued to Possess who had no right to the Annuity of two hundreth pound Sterling that his Possession did satisfie the nineteen thousand pound and purged the Right the said umquhil Earl dying there is now Summons of Transferrence at Sir Alexanders instance against this Earl of Hume as Representing his Father and also therein a Declarator against this Earl as appearand Heir that the Contract was satisfied and extinct by Intromission and the Lands Liberate Compearance is made for an Appryzer who produced his Infeftment and who had apprized the Lordship of Coldinghame and all Right thereof competent to the late Earl of Hume who alleadged no Process for the conclusion of Declarator against this Earl of Hume because all Parties having Interest were not called viz himself who had Denuded the Earl of Hume and who is not cited The Pursuer answered that this being a Personal Contract with the Earl of Hume whereupon no Infeftment had followed seing the original Right was in no Register he was not obliged to search the Register for the Infeftments of Appryzers but it was sufficient for him to call the appearand Heir of the Contracter But seing this Alleadgeance could not be proponed for the Earl of Hume being jus terâ—tij neither by the Appryzer unless he had produced his Right to verifie the same instantly seing he now compears for his Interest he may be admitted and heard to Defend thereupon in causa but not to delay or exclude the Process till a new Citation but according to the Lords ordinar custom he may see the Process in the Clerks hands and propone his Defense as the Lords have done in the same Process against one Park another Appryzer The Lords Repelled the Defense but allowed this Appryzer as they had done the other to see in the Clerks hands and to be heard upon his Right and Ordained all the Advocats compearing for the Defenders to produce any other Interest in their hands and not be delay the Process by dropping them in severally Langlands contra Spence of Blair Iune 17. 1670. LAnglands pursues Spence of Blair for Reduction of his Rights of certain Lands granted by Hamiltoun of Blair his Author because Hamiltoun was Inhibit at the Pursuers Instance before he granted these Rights to the Defender It was alleadged for the Defender Absolvitor because the Inhibition was null the question being of Lands lying within the Regality of Culross and the Inhibition was not Execute at Culross the head Burgh of the Regality but at Pearth the head Burgh of the Shire and for instructing that Culross was a Regality the Lord Colvils Infeftment was produced which though it bear not expresly a Regality yet is bears a Bailirie with power to Repledge which importeth a Regality and accordingly the Bailzie and not the Sheriff makes count in Exchequer and Briefs are direct to the Bailzie and there is produced an Inhibition Anno 1657. and another in Anno 1666. Execute at Culross The Pursuer answered that Culross was never denominat holden or repute a Regality but a Bailliry and though the power of Repledging be a special priviledge of Regality yet there are many other priviledges thereof not consequent upon the Repledging 2dly The Pursuer having followed the ordinar course used the time of his
Infants and that if Archibald should die Thomas would get all superceeded to give answer anent the Heretable Right of Succession until both Parties were Major and in the mean time allowed Thomas to Possesse the Profits of the Lands who had no Aliment nor Provision Kennedy contra Cunningham and Wallace Iuly 12. 1670. THere being an Apprizing of the Lands of Garleith belonging to Iohn Kennedy at the Instance of Edward Wallace the said Edward by his Back-bond declared that the Apprizing was to the behove of William Wallace of Burnbank his Brother and obliges him to denude himself thereof in his favours Thereafter the said Edward Assigns the Comprizing and Dispones the Lands to Adam Cunningham who stands Infeft and in a Debate for the Interest of this Apprizing It was alleadged that Edward Wallace the Apprizer having by his Back-bond declared that the Apprizing was to William his Brothers behove conform to his Back-bond produced the said William was satisfied by Payment or Intromission so that the Apprizing is extinct It was answered for Cunningham that the alleadgeance is not Relevant against him who stands Infeft as a singular Successor so that his real Right cannot be taken away by any Personal Back-bond granted by his Author whereby he was not denuded for though his Author had granted Assignation to the Apprizing if it had not been Intimat a posterior Assignation Intimat much more a Disposition and Infeftment would be preferred thereto for albeit satisfaction of an Apprizing by Intromission with the Mails and Duties be sufficient to extinguish even against a singular Successor though there was no Resignation made which the Lords had extended to any payment made by the Debitor yet this was never extended to any Personal Declaration of Trust or obligement to denude which cannot be valide against a singular Successor It was answered for Kennedy that Apprizings and Infeftments thereon do differ from other Infeftments in this that they require no Resignation or Re-seising to extinguish them but whatever may take away a Personal Right either by Intromission Payment or compensation will take them away even by exception and what is Relevant against the Author is Relevant against the singular Successor except as to the manner of Probation that it cannot be Proven by the Authors Oath but by Writ or Witnesses neither is there any odds as to this whether there be Infeftment on the Apprizing or not so then if Cunningham were but Assigney to the Decreet of Apprizing it would be Relevant against him that before his Assignation his Cedent had declared that the Apprizing was to the behove of another to whom the Debitor had made payment which Declaration being instructed by Writ anterior to the Assignation is valide against Cunningham the Assigney and whether he be Infeft on his Assignation and Disposition of the Apprizing or not as to this Point Law and Custom makes no difference neither doth the case quadrat with an Assignation unintimat compeating with a posterior Assignation intimat which might be preferred but if the Debitor made payment to the Assigney though he had not intimat it it would extinguish the Apprizing and no posterior Assignation though intimat would make the Debitor pay again and in this case there is a real Declaration of Trust which is most ordinar when Parties having small sums assign them all to one who Compryzeth for all and by several Back-bonds Declares that the Appryzing is to the behove of the several Creditors according to their sums who have alwayes rested therein and have sought no further and if this Back-bond were not sufficient against singular Successors the Appryzer might at any time thereafter Dispone and clearly exclude them The Lords found that the Back-bond was Relevant against singular Successors and that payment made to him to whose behove the appryzing was Deduced was sufficient against a singular Successor having right to the appryzing or Lands from the Appryzer after he granted his Back-bond The Daughters of Soutray contra The Eldest Daughter Iuly 13. 1670. THe Laird of Soutray having granted a Writ in favours of his Eldest Daughter beginning in the Stile of a Testament and after a blank Disponing his Lands of Soutray and his whole Moveables to the said Eldest Daughter with the burden of ten thousand merks to be payed to the remanent Daughters The saids remanent Daughters pursue a Declarator of the nullity of the Writ First In so far as being a Testament it contains a Disposition of the Lands 2dly In so far as the Eldest Daughter is nominate Executrix and universal Legatrix because by ocular inspection that part of the Writ was blank and is filled up with another hand which is offered to be proven to have been done since the Defuncts Death so that the Executor and Legator not being filled up by the Defunct in his own time and these being the Essentials of the Testament wanting the whole Falls even as to the Disposition of the Moveables The Defender answered that the Testament was valide albeit the Name of the Legator and universal Executor were filled up after the Defuncts Death yet it is offered to be proven that the Defunct when he subscribed the Testament did nominat his Eldest Daughter as Executrix and Legatrix and gave warrand to the Nottar to fill up the Name which though he neglected then and has done it since it ought not to prejudge her It was answered that our Law allows of no Nuncupative Testaments or nominations of Executors of Legators unless the Testament be perfected in Writ and therefore if the Executor or Legator be not filled up by the Defunct the Testament is not perfeited in Writ albeit the Defunct has Subscribed the same as he might have done in a blank Paper and given warrand to the Nottar to fill up his Testament upon such Terms which could not subsist though the Nottar and Witnesses should astruct the same as not being done habili modo The Lords found the Testament null as to the nomination of the Executor and Legator and also as to the Lands but they found it valide as to the Disposition of the Moveables with the burden of the ten thousand merks and found that the want of the nomination of the Executor or universal Legator did not hinder but that the Defunct might in any way Dispone his Moveables in Testament or on Death-bed which would stand valide as a Legacy which by our Law might consist without nomination of Executors but would extend to that part of the Moveables only the Defunct might Legat. Anna Raith and Iohn Wauchop of Edmistoun contra Wolmet and Major Bigger Eodem die IN Anno 1641. there was a Minute of Contract betwixt umquhil Wolmet Iames and Mr. Iames Raiths of Edmistoun and their Spouses whereby a Marriage was Contracted betwixt Iames Edmistoun Wolmets Son and Mr. Iames Raiths Eldest Daughter and in case of the Decease of either of these two the next Son and next Daughter to make
a perpetual Friendship In Contemplation of which Marriage the said Iames Raith and Mr. Iames Raith his Son were obliged to pay 10000. pounds of portion to Wolmet himself and to lend another Sum for Redeeming of a Wodset upon the Estate which being done Wolmet was obliged to Infeft his Son and to provide eight hundreth merks of Joynture to his Good-daughter Raiths Eldest Daughter Dies and the said Iames Edmistoun Wolmets Eldest Son Marries Raiths second Daughter but there was no Contract or consent of her Parents and they having lived seven years together James Died without Children and Raiths third Daughter is Married to John Wauchop Niddries Son and Raiths Estate provided to her whereupon they to liberate Raiths Heirs and Estate of the 10000. pounds contained in the Contract raised Declarator that the minute was null and void in two Grounds First Because there was no Marriage following by consent of the Parents conform to the Minute 2dly Because Raiths obligement to pay the Tocher was to Wolmet himself and for his mutual obligement of Infefting his Son and providing a Joynture which neither was nor can be done Major Bigger now standing in the full Right of Wolmets Estate and no Person to Represent Wolmet The Defenders alleadged absolvitor from the first Ground because there was a Marriage conform to the Minute and albeit Raith did not consent yet being obliged he had no just Ground to disassent And to the second Ground seing there was no Clause irritant in the Minute albeit the obligements therein were mutual Causes each of other it might be Declared that neither Party should be obliged to fulfil till the other fulfilled their part but could not annul the Minute The Lords found that seing Wolmet was in no capacity to perform his part that the Heirs and Estate of Raith were free of their part providing that the Pursuer who is Assigney to the Liferent Right of the said Iames Edmonstoun his Wife should Discharge the said Liferent and declare that it should never burden Wolmets Heirs or Estate Beation of Bandoch contra Ogilbie of Martoun Eodem die BEaiton of Bandoch having a Miln upon a Burn running by the Lands of Greendykes and Martoun the Tennents of these Lands did by Sheuchs and Casts divert the Water and therewith watered their Ground which thereafter returned to the Burn before it came to Bandochs Dam. Bandoch pursues a Declarator that he and his Predecessors and Authors having been in immemorial Possession of the Miln and having had the free use of the Burn until of late the Tennents of Greendyke and Martoun have diverted the same to water their Ground whereby so much thereof is drunk up by the Ground that there remains not Water sufficient for his Miln In this Process the Lords having before answer allowed Witnesses to be adduced on either part It was proven that Bandoch was in Possession of the Miln with the free use of the Burn these threescore years and that it was commonly known that he and his Predecessors had been in immemorial Possession thereof till the diversion It was also proven that the Tennents of Greendykes had been fourty years in use to water their Ground as now they do It was also proven that the Tennents of Martoun have been in use to water their Ground this 34 or 35. years whereupon it occurred to the Lords to consider whether the watering of the Ground being the most natural and ordinar effect of Burns and Waters the building of a Miln beneath could hinder that liberty or at least if 34. years Possession were not sufficient to continue the watering The Lords did not consider what effect the building of a Miln with a short possession of the Water free of diversion would hinder the Heretors from diverting the Water from watering their Ground but finding that the ancient and immemorial Possession of this Miln and full injoyment of the Water was as much proven as could be known to preceed the 34. years during which the diversions upon the Lands of Martoun was proven they found that the Miln and her priviledge being once so Constitute no less then 40. years peaceable Possession of diverting the Water for watering was sufficient that being the only legal Term and therefore allowed the Lands of Greendykes to continue the watering but discharged the Lands of Martoun to continue the same Sir Alexander Hume contra The Earl of Hume July 14. 1670. THe Right of the Erected Barony of Coldinghame being derived from John Stuart of Coldinghame and Sir Alexander Hume younger of Rentoun he pursues a Declarator against this Earl of Hume and the Creditors and Appryzers of the Estate of Hume to this effect that there being a Contract betwixt umquhil James Earl of Hume and Stuart and others whereby it was Declared that the Earl being Infeft in an Annualrent of 200. pounds Sterling out of the said Barony there was nineteen thousand pounds of bygons of the said Annualrent at the Date of the Contract in Anno 1631. Therefore it was agreed that the Earl of Hume should be put in Possession of the said Barony for payment of the said Annualrent for Terms subsequent and for the nineteen thousand Pounds made up of the bygone Annualrents fructibus non compurandis in sortem and that the Earl of Hume who last Deceased having Assignation to the said Contract from the Heirs of Line of the said umquhil James Earl of Hume recovered a Decreet of Possession upon the said Contract in Anno 1643. and entered in Possession accordingly and that the said Annualrent of 200. pounds Sterling after the Decease of the said James Earl of Hume did cease being only provided to the Heirs-male of his Body which failzing c. that therefore the 200. pounds Sterling affecting the Barony in the first place and being free did satisfie the nineteen thousand pounds and freed the Barony thereof Compearance being made for the Earl of Hume and the Creditors who had Appryzed the Barony of Coldinghame It was alleadged that the Earls intromission was not to be ascribed to his Decreet of Possession in Anno 1648. because he had another anterior Title in his Person viz. A former Contract betwixt the Deceast James Earl of Hume and the Heretors of Coldinghame by which he was allowed to Possess till he were payed of 4000. pounds Sterling payable at four Terms for which or any of the Terms he was to enjoy without an accompt fructibus non imputandis in sortem of which Contract there was a thousand pound Sterling unpayed and upon which Contract Iames Earl of Hume had obtained Possession in Anno 1630. So that the late Earl having right to both these Contracts and Decreets from the Heirs of Line and having entred to the Possession without any Porcess of Removing or Mails and Duties against the Tennents but the former Possessors leaving the Possession the Earl entered without opposition and might ascribe his Possession to either of these Rights he pleased and does
intertainment and gratification to an Officer for a Guard and even though there were necessar Causes of the Prisoners coming out the Magistrate is not Judge thereof nor has any power of it but the Party ought to apply themselves to the Council or Session and obtain their Warrand which will not be granted even by them but upon instruction of a necessar Cause upon Oath of Physicians or others The Defenders answered that Incarceration was a civil effect of Law and no punishment and that it were against all humanity to put Prisoners for civil Debt in that condition that the Magistrates could not let them out for a little even for the safety of their Life in extremity of sickness which oftimes would not admit of delay till application were made to the Council or Session 2dly Whatsoever may be found just by the Lords in time coming yet the constant and universal Custom of this and all other Burghs to let Prisoners go out with a Guard when they saw convenient cause did introduce a priviledge to Burghs or put the Defenders in bona fide to Act as all their Predecessors had been accustomed to do without any question or Decision in the contrair and alleadged a late Practique in the case of the Town of Culross who suffering a Prisoner that was a poor man to go out to an Hospital where he got Bread and thence he immediatly returned to Prison and to go and see his nearest Relation that was a dying in the Town or to their Burial was not found lyable for the Debt The Lords considering the ordinary Custom of Burghs found that as to the time past they would not find them lyable for suffering Prisoners to go out with a Guard for any necessar cause and found the Defense Relevant that this Prisoner was let go out with a Guard for his health or to the Kirk on the Sabbath but found that Member of the Condescendence Relevant that he went out to the Street and Taverns without a necessar Cause though with a Guard Relevant to infer the Debt But found that in time coming they would have no regard to that unwarrantable Custome but that Magistrates of Burghs should only have power to let Prisoners come out of the Tolbooth under a Guard in the extream hazard of their Life by sickness and not without Testificats by Physicians or skilled persons upon Oath bearing the Parties condition to require the same and that without great hazard they could not suffer delay to make Supplication to the Council or Session The Lady Wolmet and Dankeith her Spouse contra Major Bigger Eodem die JEan Dowglas Lady Wolmet being by her Contract of Marriage Infeft in the half of the Lands of Wolmet did with her Husband consent to a Wodset of the whole Lands for 28000. merks wherein there is a Back-tack setting the Lands and Coal to her Husband and her the longest liver of them two for payment of the Annualrent of the Money which Wodset the said Iean in her Viduity as Tutrix renewed to the first Wodsetters Assigney and became personally obliged both for the principal sum and Back-tack-duty and took the Back-tack half to her self and half to her Son the Heir but after the first Wodset her Husband set a Tack of the whole Coal to his seven Children for twelve years they paying twelve hundreth merks yearly to the Wodsetter and two merks yearly to his Heir which Tack expired in Anno 1663. after which the said Iean Dowglas and David Cunninghame of Dankeith her Husband pursues Major Bigger as intrometter with the Coal for the half of the profite thereof conform to the Back-tack who alleadged Absolvitor because the Back-tack in so far as it exceeded the Ladies Joynture was a Donation between Man and Wife and was Revocked by the Childrens Tack and being once Revocked remained for ever Revocked because the ground of Law prohibiting Donations between Man and Wife and annulling the same nisi morte confirmentur is introduced ne mutuo amore se spolient and therefore nothing can make them effectual but the Husbands continuing in the same mind to his Death but any signification of alteration of his mind directly or indirectly though it were in his Testament or Codicil or by any Deed whereby he owns the thing Disponed as still at his Disposal is sufficient to annul the Wifes Right as if he should grant a Wodset of the same Lands though without mention of his Wifes prior Liferent given gratis stante matrimonio It would Revock the same so that though the Husband Redeemed the Wodset the Wifes Right would not Revive So here the Bairns Tack being of the whole Coal for twelve years doth wholly Revock the Back-tack as to the Wife not only during these years but for ever 2dly There is a minute of Contract betwixt the Husband his Wife and Raith of Edmonstoun clearly showing the change of his mind and restricting the Lady to her first Liferent It was answered that albeit in jure donationis or where there was a clear and liquid excess of the Right received exceeding the Right quite any Deed evidencing the Change of the Husbands Will might be sufficient to Recal it Yet that holds not here where the Lady quite a certainty for a Casuality viz. The profite of a Coal which might many wayes have been ruined and unprofitable in which case she would have nothing for her Joynture and so it was permutatio spei aut jactus retis and at the time of the Wodset was not of more value in buying and selling then the Joynture of the Lands being certain 2dly This not being a pure Donation the Husband could not Recal it till he had Restored his Wife to her first Liferent and releaved her of all Burden and Distress she had sustained by the Wodset neither had he shown his mind to Change but only in part And as to the Contract with Raith it was in Contemplation of a Marriage and was all founded on advancing Sums to Redeem the Wodset whereby the Back-tack ceased 3dly The Defender connot exclude the Pursuer unless he pay her all bygone years of her Joynture she wants from 1654 to 1667. by Arrestments and Processes upon the Back-tack and free her of the principal Sum and Annualrent and satisfie her of the damnage she has Sustained by lying out of her Liferent for all these years and sustaining a long pursuit wherein she is willing to acquiesce The Lords in respect of this offer and that the Defender did also offer to free and relieve her rested therein and did not proceed to advise the former Points in jure Bowers contra Lady Cowper Iune 16. 1671. BOwers pursues the Lady Cowper as vitious inâ—â—â—â—â—er with the Lord Cowpers Goods and Gear for payment of a Debt of his who alleadged Absolvitor because she had a Disposition from her Husband of his Moveables It was Replyed that the Disposition being between most conjunct persons without a Cause onerous was null by
Exception by the Act of Parliament 1621. against fradulent Dispositions It was answered that the Disposition behoved at least to purge the vitious Intromission and did stand ay and while it was Redeemed For notwithstanding of the Tenor of the said Act the Lords do not Sustain that Nullity by way of Exception or Reply The Lords found the Nullity competent by way of Exception it being no Heretable Right requiring the production of Authors Rights but in respect of this colourable Title restricted the vitious Intromission to the single value Lord Lovet contra Lord Mcdonald Eodem die THe Lord Lovet pursues the Lord Mcdonald to count for the Superplus of a Wodset from the Date of his Instrument of Requisition in Anno 1663. whereupon he had raised Summons in Anno 1667. It was alleadged that the Instrument was at the Defenders Dwelling-house when he was out of the Countrey and bear no production of the Procutry and only an offer of a Bond with a Clause of Infeftment in all Lovets Land and did not bear an offer of Caution It was answered that the Act did not require Requisition by Instrument but quaevis insinuatio sufficit and the Instrument bear Delivery of a Copy to the Defenders Lady in his House there being no Procutry for the Pursuer offered now to produce the same and a surety by Infeftment was sufficient the Act of Parliament mentioning no Caution The Lords found that the Requisition behoved to be by Letters of Supplement at the Cross of Edinburgh and Pear of Leith seing the Defender was out of the Countrey but Sustained the same as to the Procutry it being now produced and sustained the offer of Surety and Ordained it to be produced Reserving the Objections and Answers of either Party thereanent Iohn Boyd contra Hugh Sinclar Iune 17. 1671. JOhn Boyd having a Right to some Teinds in Orknay pursues Hugh Sinclar as Intrometter therewith who alleadged Absolvitor because he had Right to a Tack set to umquhil Sinclar during his Life and to his first Heir after him during his Life and nineteen years thereafter which is not yet expyred for though the Defuncts eldect Son survived him yet he was never entered Heir to him neither did he possess thir Teinds and Died shortly after his Father but it is not nineteen years since the second Son Died whos 's Retour is produced as Heir to his Father The Lords found that the eldest Son Surviving his Father although he never Possest was the first Heir as to the Tack and that he needed not be served Heir Alexander Alexander contra The Lord Saltoun Iune 20. 1671. THe Earl of Hadingtoun having obtained a Gift of Bastardy and ultimus hares of umquhil William Gray Provost of Aberdere did assign the same to Alexander Alexander with a Process thereupon against the Lord Saltoun for payment of 5000. merks due by him by Bond to the said umquhil William Gray The Defender alleadged that this Bond being granted for the price of Land bought by him from the Bastard and of the same Date with the Contract of Alienation thereof there was a Back-bond also of the same Date by which the said William Gray was not only obliged in Warrandice but also to procure himself Infeft holden of the Earl of Mar to purge an Inhibition at the instance of Ramsay and to procure a Right of an Appryzing at the Instance of the Lord Newbeath The Pursuer answered that the King or his Donator was not obliged to fulfill these Obligements of the Bastard which were not liquide nor special It was answered that the Gift of Bastardy or ultimus haeres not falling to the King by Forefaulture or any Delinquence but by Deficience of the Bastards Heir the Donator was in no better case as to the fulfilling of these Obligements then the Bastard or his Heir would be if they were pursuing upon the Bond who could not seek payment till the Obligements in the Alienation or Back-bond which were the Causes of this Bond were fulfilled Which the Lords found Relevant as to the special Obligements of obtaining Infeftment and purging the Inhibition and Appryzing but not as to the general obligement of Warrandice wherein no Distresse was alleadged Thomas Crawford contra Iames Halliburtoun Eodem die THomas Crawford having Charged Iames Halliburtoun upon a Decreet Arbitral for payment of a sum He Suspends and alleadged that he was Interdicted at that time and that the Interdicters did not consent to the Submission or Decreet Arbitral The Pursuer answered First That the Alleadgeance was not competent by Exception but by Reduction 2dly That Interdictions had only the same Effect as Inhibitions and did operate nothing as to Moveables or personal Execution even by way of Reduction Both which Defenses the Lords found Relevant John Neilson contra Menzies of Enoch Iune 21. 1671. JOhn Neilson as Assigney Constitute by Iohn Creightoun pursues Menzies of Enoch for the Rents of certain Lands in Enoch upon this Ground that there was a Tack set by James Menzies of Enoch of the saids Lands to the said Iohn Creightoun for nineteen years for payment of fourscore pounds Scots yearly of Tack-duty thereafter by a Decreet Arbitral betwixt Enoch and his eldest Son Robert he is Decerned to Denude himself of the saids Lands in favours of Robert reserving his own Liferent After which Decreet Robert grants a second Tack to Creightoun relating and Confirming the first nineteen years Tack and setting the Land of new again for five merk of Tack Duty in stead of the fourscorepounds After which Tack Robert Dispones the Land irredeemably to Birthwood but at that time Robert was not Infeft but upon the very same day that the Disposition was granted to Birthwood Robert Menzies is Infeft and Birthwood is also Infeft Birthwoods Right by progress comes in the Person of Iames Menzies the Defender Roberts Brother The Pursuer insisted for the Duties of the Land over and above the fourscore pounds during the Life of old Iames Menzies and over and above the Tack-duty of five merks after his Death For which the Defender alleadged Absolvitor because he produces a Decreet at his instance against Creightoun the Tacks-man Decerning him to Remove because he was then resting several Terms Rent and failed to pay the same and to find Caution to pay the same in time coming The Pursuer answered that the said Decreet was in absence and was null because the Defender Libelled upon his own Infeftment and upon a Tack set to Creightoun the Tacks-man by himself and there was no such Tack produced by him or could be produced because the Tack albeit it bear to be set by Iames Menzies yet it was only set by James Menzies his Father and not by himself The Lords found the Decreet null by Exception Whereupon the Defender alleadged that the Decreet at least was a colourable Title and he possessed by it bona fide till it was found null bonae fidei possessor facit
Practique produced observed by Dury upon the 1â— of March 1637. betwixt Hume and Hume of Blackadder wherein Compt and Reckoning was Sustained at an appearand Heirs instance the Custom having been ever since contrair upon this Ground that no Party should be troubled to Compt at the Instance of those who when the Compt was closed cannot exoner them and yet may put them to make Litiscontestation and Probation in the Cause Duke of Buccleugh contra Parochioners of Eodem die THe Minister of Hasendein having obtained the Designation of a Gleib out of the Duke Land who alleadged that the Minister having a Gleib before extending at least to two Aikers the Earl upon this Designation had gotten Possession thereof and could only seek Relief for the Superplus It was answered that these two Aikers had never been designed as a Gleib but the Pursuers Predecessors were infeft therein and in Possession thereof before the Ministers and any Possession they had was but by their sufference and conâ—â—vance It was answered that decennalis triennalis possessor non tenesur docere de tâ—â—uâ—o and the Minister was not only in Possession thirteen years but thirty years It was answered that albeit Possession may be a Title yet it may be elided by the Pursuers Right which cannot be taken away but by Prescription whereupon the question arose how the Tollerance or Sufference of the Ministers Possession was probable whether by Witnesses or not seing Tollerances are not ordinarly so proven The Lords found that if the Ministers Possession were alleadged to have been 40. year as belonging to the Kirk that the Dukes Tollerance could only be proven by Writ to elide the same but if for fewer years they found the Tollerance or Sufference probable by Witnesses Mr. Arthur Gordoun contra Laird of Drum Eodem die MR. Arthur Gordoun as Assigney to a Decreet recovered against the Laird of Drum Charges him thereupon He Suspends on this Reason that the Debt being originally due to a Defunct his two Executors nominate recovered the Decreet and the one only assigned the whole to Mr. Arthur whereby he can only have Right to the half It was answered that the other Executor being Dead before the Assignation the Office accresced to the Surviver who might uplift all that was in bonis defuncti not uplifted It was answered that this Debt was no more in bonis defuncti but being established in the Executors Person by Sentence testamentum suit oxecatum and the Deceased Executor's half behoved to belong to their Executors and not to accresce Which the Lords Sustained Lady Ballagan contra Lord Drumlanrig Iune 23. 1671. THe Lady Ballagan being by her Contract of Marriage provided to certain Lands and amongst others to the Lands of Birks the Contract bears that she accepts of the saids Lands in full satisfaction of all further Conjunct-Fee Liferent or Terce she was Infeft in the Lands of Birks by her Husband but was not Confirmed by the Lord Drumlanrig Superiour of whom the Lands held Ward The Lady pursues the Tennents of Birks for Mails and Duties Compearance is made for the Lord Drumlanrig Superiour who craved preference because the Lands are now by Ward in his hands by the Death of the Husband and minority of the Heir And as for the Ladies Infeftment it can have no effect against the Ward because it is not Confirmed It was answered that the Lands being Ward and lesse then the third part of the Ward Lands holden of the Lord Drumlanrig the Lady has Right by Law thereto as her Terce It was answered That by her Contract of Marriage she had accepted the Lands provided therein in satisfaction of her Teroâ— which is the ordinar conception of a Renunciation as when a Sum is accepted in satisfaction of any prior Debt it imports a Renunciation and Discharge of the prior Debt and an Inhibition prior to the last Bond will Reduce any Right thereupon Neither can it be maintained as having an anterior Cause by the former Bonds yea any Appryzing upon them would be void because they are Renunced It was answered for the Lady First That there was here no formal Renunciation or Discharge of the Terce and the acceptance of Lands for it doth very well allow that the Land accepted may be bruiked as Terce at least a Terce of that Land must be due though no Terce of other Lands can be claimed and albeit the Clause in satisfaction in personal Rights is commonly understood to Renunce and extinguish the prior Rights unless they be Reserved Yet it is not so in real Rights for if any person have many Rights to Lands and doth thereafter accept a Disposition of a part of the Lands in satisfaction of all his interest that does not Renunce his former Rights to that Land but he may defend himself with them all So here accepting of Lands in satisfaction of a Terce does not Renunce the Terce as to the Lands accepted 2dly Albeit this Clause could import the Renuncing of all Terce that can never be extended to the benefite of the Superiour nor can it be understood the Contracters mind to exclude the Wife from the Terce to make it accresce to the Superiour in both their prejudices because the Husband by the Warrandice must make out the Joynture 3dly Albeit the Renunciation could be profitable to the Superiour yet it being by this Clause in the Contract the Superiour cannot question the Ladies Infeftment which is the cause of the Renunciation but must adhere to the whole Clause nam qui approbat non reprobat It was answered that the common Sense of this Clause of acceptance does still import a full Renunciation neither can the intention or meaning of the Parties import any thing unlesse they had acted accordingly for it had been easie for them to have said but prejudice of the Terce as to thir Lands so that the Terce being Renunced the Renunciation is profitable to all Parties having Interest because the Right thereby Renunced is simply extinct Neither needs the Superiour approve the Infeftment Un-confirmed by making use of the Renunciation for as there could be no pretence for that upon the naked Clause without any Infeftment so the meaning can only be that if the Clause had been perfected by a valide Infeftment he could not have quarrelled it The Lords preferred the Superiour and found the acceptance a full Renunciation of the Terce both as to the Lands accepted and others Helen Hume contra Lord Iustice Clerk Iune 28. 1671. UMquhile Hume of Rentoun having made several Provisions to his Children and amongst the rest to Helen Hume and having recommended the same to his Son now Justice Clerk he gave a Bond to the said Helen of two thousand Merks payable upon Requisition of fourty days the said Helen pursued Registration of the Bond wherein it being alleadged that any Requisition made was past from by acceptance of Annualrent for Terms after The Lords Assoilzied from that Charge until
was alleadged that the Cause having lyen over several years must be wakened It was answered that there being a Decreet pronunced there was no more Process depending and so needed not be wakend It was answered that a Decreet though pronunced not being conditional to a day but being absolute and thereafter stopped in respect the stop takes off the Decreet the Process is in statu quo prius It was answered that the stop doth not recal the Decreet but only hinders the Extract thereof till the Supplicant be further heard and it is his part to insist in the Bill and that it would be of very evil consequence if stopped Decreets were recalled for then not only wakening would be necessar but in case the Parties should Die Transferance should be raised and seing wakenings are not requisite in concluded Causes much less after Sentence is pronunced The Lords found no necessity of wakening but allowed the Defender to propone what further he had to alleadge Laird of Balfour contra Mr. William Dowglasse Iuly 4. 1671. THe Earl of Airlies Estate being Apprized by Mr. William Dowglasse since 1652. after the Legal was expired Mr. William was Infeft and after his Infeftment the Laird of Balfour Apprized the same Land and thereupon pursues the Tennents for Mails and Duties It was alleadged for the first Apprizer that he must be preferred First Because he has the only Right having an Apprizing expired and Infeftment thereon before the Pursuers Apprizing was Led so that eo momento that he was Infeft upon his expired Apprizing the common Debitor was fully Denuded and there was no Right of Reversion or any other in his Person that could be Apprized thereafter It was answered that by the Act of Parliament 1661. between Debitor and Creditor It is provided that all Apprizings Led within year and day of the first effectual Apprizing shall come in therewith pari passu and therefore the Pursuer having Apprized within year and day after the first Apprizers Apprizing became effectual by Infeftment he must come in with him pari passu by the said Act which makes no difference of expired or unexpired Apprizings and by that same Act the Debitor is not so Denuded by the expiring of the Legal and Infeftment but that year and day is still allowed to subsequent Apprizers which in effect is a prorogation of the Legal as to Concreditors It was answered that the Act of Parliament is opponed bearing that Apprizings before or within year and day after the first effective Apprizing shall come in pari passu as if one Apprizing had been Led for all which necessarly imports the calculation of the year to be from the date of the first effective Comprizing and not from the date of the Infeftment or Diligence for the coming in as if one Apprizing had been for all must relate to the Decreet of Apprizing which as it is clear by the Letter of the Statute so also by the Narrative and Motive thereof bearing that Creditors did not know the condition of their Debitors Estate which might be Apprized before they could do Diligence whereas before they had only the benefit of Reversion for remeed whereof the Parliament brings in all Apprizings that are before or within a year after the first effectual Apprizing which before would have carried the sole Propertâ— and factione juris states all these Apprizings as Led in one day so that the remeed is sufficient by having a full year after the date of the Apprizing and Correctory Statutes are to be strictly Interpret and if the date of the Diligence be the Rule an Apprizing after twenty year might be brought to admit a new one deduced after all that time and not only so but the Mails and Duties would belong proportionally to the last Apprizer for twenty years before it was Led It was answered that the year indulged by this Act of Parliament to Concreditors must be from the time the Apprizing is effectual for the words of the Statute bears all Apprizings before or within a year after the first effectual Comprizing c. so that the year must not run from its being an Apprizing but from its being an effectual Comprizing and so from the Infeftment or Diligence neither is the inconvenience shunned otherwise for the only way then known for publication of real Rights was the Register of Seisings and not the Register of the Allowance of Apprizings which is only made necessar by an Act since and it is very easie to make simulate executions of Apprizings by taking away the Copies of Denunciation of the Ground and Citation at the dwelling House of the Debitor but if once a Seising be in the Register all provident men take notice thereof and albeit a Charge be sufficient in stead of a Seising which is not Registrat yet the ordinar way of compleating Apprizings which the Law notices is Infeftment and seing Apprizings are now rigorous Rights carrying any Estate without consideration of the value Acts Correctory of them ought to be extended ex aequo and the more wayes Concreditors have for getting notice of the Apprizing of their Debitors Estate the better neither are the evil consequences upon the other hand of any moment it being the first Apprizers fault if not his fraud that he obtains not Infeftment or does Diligence therefore for he may of purpose lye dormant not only till year and day run but untill the Legal expire and thereby cut off the Diligences of all other Creditors as in this very case the irredeemable Right of an Earldom shall be carried for 1500. pounds and all the other Creditors excluded so that the Apprizing is so far from making the case better that it makes it much worse as latent and fraudulent for it cannot be imagined that if the second Apprizer had known that the first Apprizing was Led but that he would have used Diligence within the year at least within the Legal for so soon as he saw a Seising in the Register he did immediatly Apprize The Lords preferred the first Apprizer and excluded the second and found that the year is to be reckoned from the date of the first effectual Apprizing and not from the Diligence whereby it becomes effectual In this Process the Lords Sustained this Reply that the first Apprizing was to the behove of the common Debitor or his eldest Son and that they would purge the same by payment of what Sums were truly payed for it to the Apprizer according to the said Act of Parliament 1661. without any Reduction or Declarator Helen Hume contra The Lord Iustice Clerk Eodem die THere being a Bond granted by the Laird of Rentoun to Helen Hume his Daughter obliging him and his Heirs to pay the Sum to her at her Age of ten years compleat with Annualrent so long as she should suffer the same unpayed and then subjoining this Clause that in case she should die unmarried the Bond should be void Whereupon the said Helen pursues the Lord
Appryzing on the Bairns Portion though prior Iuly 22. 1668. Iohnstoun of Shems contra Arnot Vide Children Ianuary 16. 1676. Erskines contra Râ—ynolds A BOND bearing borrowed Money was found not Reduceable upon the Act against Bankrupts but that the Bond it self did sufficiently instruct the borrowing of the Money as the cause onerous Iune 28. 1665. Moâ—teith contra Aâ—derson A Bond was found Heretable as bearing annualrent though it was but 5. per cent in a Bairns Portion Iune 28. 1665. Pâ—tcairn contra Edgar Bonds bearing Annualrent are moveable till the first Term of payment of Annualrent and fall within single Escheat Iune 26. 1668. Dick contra Keir A Bond by a Father to a Son though bearing borrowed Money yet was presumed to be for love and favour and the same with an Appryzing thereupon was Reduced at the instance of anterior Creditors who obtained Decreets after the Bond for Bargains which were proven by Witnesses to have been contracted before the Bond Ianuary 21. 1669. Creditors of Pollock contra Pollock his Son A Bond by a Father to his Son after he was Married and out of his Family payable after the Fathers death was found not Reduceable at the instance of posterior Creditors of the Father by the Act of Parliament 1621. against fraudful Alienations though it were Reduceable upon evidence of Fraud ex jure communi which were appointed to be condescended upon Ibidem A Bond taken by a Father from a Son after Contract of Marriage Vide Contract BARONS Decreets are valide in Vaccance time by their priviledge without dispensation and they are competent to Iudge the Multures due by their Vassals February 14. 1662. Nicolson contra Forbes of Tillicutriâ— A BARONY was found to include a Burgh of Barony as Pâ—rt and Pertinent though not exprest in a donators Infefâ—ment albeit it was exprest in former Infeftments and particulars of less moment were exprest in this Infeftment as comprehended in the Barony Ianuary 15. 1668. Earl of Argile contra Campbel A BASE INFEFTMENT of Annualrent was sound valide against a posterior publick Infeftment because thereupon there was a Decreet of poinding the Ground though it could take no effect for a long time till the entry to the Annualrent which was not till after the Constituents death 26 and 27. of February 1662. Creditors of Kinglass competing A base Infeftment by a Husband to his Wife on her Contract was validate by and preferred upon the Husbands Possession though the Wiâ—es Infeftment was of annualrent and the Husbands of property November 23. 1664. Lady Grangâ— contra Murray where it was found that from the very date it was validate and preferred to any other though prior and base but apprehending Possession upon a Citation before Candlemas it being Ferm Land and a Decreet thereon in March thereafter Two base Infestments of annualrent competing one to a Wiâ—e the other to a Creditor the Wife was preferred being cled with Possession by the Husbands possession which was not found competent to the Creditor though his Infeftment was prior and though he used Inhibition before the next Term after the Wifes Infeftment and alleadged the Husband could have no Possession after the Wifes Infeftment before his diligence which the Lords Repelled because the Husband was in a present current Possession and nor in acquirenda possessione but the Wifes Infeftment was only sustained in prejudice of this Creditor in so far as it had an anterior Cause to his debt The Husbands Possession was also found sufficient to validate the Wifes Infeftment of annualrent though he possessed the property which includes eminenter all other Rights November 23. 1664. inter cosdem An Infeftment of Warrandice Lands being in the same Infeftment with the principal Lands and both holden base was preferred to a posterior publick Infeftment of the same warrandice Lands though cled with long Possession and that upon an action of Mails and Duties upon the Distresse without Reduction Ianuary 9. 1666. Brown contra Scot. A base Infeftment by a Father to a Son reserving the Fathers Liferent was found not validate by the Fathers continuing his Possession but the Fathers Creditors appryzing were preferred to the Donator of the Sons Forefaulture founding upon the Sons Infeftment Iune 14. 1666. Hume contra Hume A base Infeftment of annualrent was preferred to a posterior appryzing and charge before the Term at which the annualrent begane to be payable in respect the annualrenter was in Possession of the Land out of which the annualrent was payable intus habuit viz. his annualrent proportionally from the date of his Right Iune 30. 1666. Stevinson contra Dobbie A base Infeftment by a Father to a Son Reserving the Fathers Liferent was found not validate by the Fathers possession albeit the Father disponed the Lands reserved to a third Party who did possess but the Disposition was of the Fee and no mention of the Liferent reserved December 18. 1666. Lord Newbeath contra Dumbar of Burgy A base Infeftment was excluded by the Liferent Escheat of the granter albeit the base Infeftment was before the Rebellion seing it was not cled with Possession in cursu rebellionis within year and day February 21. 1667. Miln contra Clerkinson A base Infeftment by a man to his Wife was preferred to a posterior publick Infeftment albeit the base Infeftment was not cled with Possession of the Husband himself but by others deriving Right of Wodset or other Temporary Right from the Husband or his authors which was compted as the Husbands Possession to validate the Wifes base Infeftment Iuly 18. 1667. Lady Burgy contra Strachen A base Infeftment of annualrent was found to be validate by receipt of a part though far within a Terms annualrent and not relative to the Infeftment but to the Bond whereupon it followed and though there was no annâ—alrent due before the Infeftment yet seing the Receipt bear in part of payment of bygone annualrents the Annualrenter was allowed to ascribe it to the annualrents due after the Infeftment to exclude an Infeftment on an Appryzing which appryzing was led before the Receipt but the Infeftment thereupon was after and the Receipt was proven by an Apocha under the Debitors hand Iuly 23. 1667. Hume contra Hume and the Tennents of Kello A base Infeftment of annualrent on a Bond bearing 3000. merks of borrowed Money and 3000. merks of Portion the one half of the whole Sum and annualâ—ents thereof was Suspended till the Fathers death Yet payment of the annualrent of the other half not suspended was found sufficient to validate the whole Infeftment and to prefer it to a posterior publick Infeftment February 5. 1668. Keir contra Keir A base Infeftment in warrandice granted by a Husband to his Wife holden of himself ex intervallo after the principal Infeftment was found valide against a posterior publick Infeâ—tment of the â—ame warrandice Lands as being cled with the Husbands Possession in the principal Lands and that these needed no
possession and free Trading on the River on which it stood was found not to be burdened with Anchorage Measurage Tunnage and Weyage granted by the King thereafter to another Burgh in Stations on that same River though cled with 40. years possession but neither universal nor peaceable but interrupted February 6. 1666. Town of Glasgow contra Town of Dumbartoun A Burgh Royal being pursued by one who had Lands within their Burrow-Lands and Houses within their Town were found not lyable for any Stent out of his personal Estate or Trading or for the Towns debts or second Ministers Stipend unless he had consented or had been in immemorial custom of payment Iuly 22. 1668. Bosewel contra the Town of Kirkaldy A Burgh Royal and their Trads-men were found not to have Right to hinder the exercise of Trads-men no ways adjacent to the Town to exercise their Trade upon pretence of the Act of Parliament Prohibiting Work-men to exercise their Trades in the Suburbs of Royal Burrows Iaâ—uary 7. 1671. Laird of Polmais contra Trads-men of Stirling CAPTION was granted summarly upon supplication against a Bankrupt who had unexpectedly and fraudulently broken and fled though he was not Rebel but the Kings free Leidge November 30. 1665. Creditors of Mason Supplicants CASVS FORTVITVS was found not to Liberate the Grasser of a Horse that broke his Neck where the Owner of the Horse appointed him to be keeped in at hard meat Ianuary 29. 1666. Scot contra Gib A CAVSE ONEROVS of a Disposition by one Brother to another was found not to be instructed by the Narrative thereof but behoved to be instructed aliunde November 19. 1669. Whitehead contra Lidderdail A cause onerous of a Disposition was found not instructed by its own Narrative or the Acquirers Oath though he was not a conjunct person with the Disponer seing the Disposition bear to be to two persons for themselves and to the behove of others whose interest was evacuate as being filled up after an Inhibition and the Disposition did not express what the Acquirers own Interest was Iuly 15. 1670. Lady Lucia Hamiltoun contra Boyd of Piâ—con A CAVTIONER for Executors was found not conveenable till the Executor be discust and that Decreet is not a sufficient discussing without Registrate Horning though the Executor have no Lands and though it was alleadged he was Bankrupt Iuly 24. 1664. Brisbâ—â—e contra Monteith A Cautioner in a Testament was found conveenable and comptable with the Executor before they were discust but superceeded all Execution against the Cautioner till the Executor be first Discust December 2. 1662. Dowglas contra the Lady Edmonstoun A Cautioner for an Apprentice was not liberate from causing the Apprentice serve his time and pay damnage for his absence because the Merchand suffered him to go over Sea and intimate not to the Cautioner to restrain him yet the penalty was modified to 50. pounds Iune 17. 1663. Allan contra Paterson Cautioners conjunct getting Assignation from the Debitor were found to have access to the rest allowing their own part but are not obliged to accept their part of what they truely payed by Composition Iuly 18. 1664. Niâ—bit contra Lesly A Cautioner was not found lyable to pay unless the Debitor Assign him to the debt and all security he had from the principal thereof Ianuary 10. 1665. Lesly contra Gray The contrary was found Iuly 10. 1665. Hume contra Crawford of Kerse So this is arbitrary and according to the favour of the case A Cautioner as Law will being obliged to present a party at all the dyets of Process and pay what should be decerned against him if he did not produce him within Term of Law having produced the Party and taken Instruments protesting to be free he was found liberate albeit at that same time the party produced an Advocation and was not Incarcerate seing the Baillies might have Incarcerate him notwithstanding of the Advocation February 20. 1666. contra Mcculloch A Cautioner as Law will not being both judicio siâ—ti judicatum solvi was liberate by puting the party in prison though not judicially when the cause was called Iuly 10. 1666. Thomson contra Binnie A Cautioner in a Suspension of a Bond wherein there were five Cautioners being distressed having payed and obtained Assignation from the Creditor was found to have accesse against the first four Cautioners as if he had been Cautioner with them allowing his own fifth part February 3. 1671. Arnold of Barnkaple contra Gordoun of Cholme A CEDENTS Oath was found to prove against an Assigney being the Cedents Son in the same Family having no â—eans of his own to acquire and the Assignation being gratuitous November 30. 1665. White contra Brown CERTIFICATION was not sustained against the Writs granted to the Defenders Authours but such as were called for though the Writ were alleadged to be in his own hand and these Authours fully Denuded Ianuary 3. 1662. Hume of St. Bathinâ— contra Orre and Pringle Certification was not admitted against the Letters and Executions of an Appryzing there being no Reduction intented till 30. years thereafter November 20. 1666. Blackwood contra Purves Certification was not admitted against a Writ Registrate in the Register of Session where the Extract was produced albeit the principal was not produced and there were pregnant evidences of Falshood ibidem Certification contra non producta was stopped upon producing and offering to dispute that the Writs produced excluded the Reducer without necessity to the Defender to declare that he would make use of no more and the Ordinary appointed to hear him thereupon but if they sufficed not he behoved with the next to produce all or declare he would make use of no further else Certification to be granted December 7. 1667. Earl of Lauderdale and Wachop contra Major Bigger Certification was refused against a Defender producing an express Infeftment of the Lands in question and the pursuer alleadging that they were part and pertinent of the Lands exprest in his Title he was ordained first to instruct them part and pertinent before the Defender was obliged to take a Term to produce Ianuary 20. 1669. Hay Clerk contra Town of Peebles Certification extracted was found not to terminate the Process of Improbation but that in the same Process the Pursuer obtained Witnesses examined as to the Forgery in so far as it depended not on the inspection of the Subscriptions and that upon production of Copies the Principals having once been judicially produced before by the Defender compearing who now wilfully keepeth them up November 9. 1669. Lady Towie contra Captain Barclay Certification against a Decreet of Valuation was found to have no effect against a Liferenter publickly Infeft not called though she had no right to the Tâ—ind but only to the Benefite of the Valuation to liberate the Stock of any further burden Iuly 15. 1670. Major Bigger contra Cunninghame of Dankeith Certification was found null by Reply being in absence and
Substitution was found not jure accrescendi to belong to the Surviver but 〈◊〉 Heir Substitute to the Deceassing without Children yet so as not to be lyable as Heir in solidum but quo ad valorem Iuly 3. 1666. Fleming contra Fleming A Clause in a Writ bearing a Narrative as a Testament and leaving such a 〈◊〉 Heir and Donator to such Tenenements and Assigning him to the Evidents with power to him after return to Recal was found effectual though not formal to inforce his Heir to perfect the same Ianuary 31. 1667. Henrison contra Henrison The same was renewed upon full debate November 4. 1667. and the being of the Writs in the granters hands after his Retuâ—n was found a sufficient Evidence of Recalling it but its coming back in the hands of the other party was found not sufficient to Revive it but they were ordained to instruct how they came by it whether as delivered back again by the Granter or found amongst his Papers November 14. 1667. inter cosdem A Clause obliging a party to pay such a sum as being the Annualrent of such a sum without any obligation for paying the principal exprest was found not to imply an obligement to pay the principal as acknowledged due but was found to constitute the Annualrent perpetual and not for the Womans life though it exprest not Heirs and Assignâ—ys February 2. 1667. Power contra Dykes A Clause in a Bond bearing a sum to be lent by a Father for himself and as Administrator for his Son aâ—d payable to the Father and after his decease to the Son but bearing that it was the Sons own Money not expressing how or from whom it came was â—ound to constitute the Son Feear and the Father Naked Liferenter February 14. 1667. Campbel contra Constantine A Clause disponing Lands was found to carry the Miln if the Lands were a Barony or if the Miln was not exprest in the Authours own Right otherways that it could not pass as part and perâ—inent February 15. 1667. Countess of Hume contra Tenents of Oldcambus and Mr. Rodger Hog A Clause in a Contract of Marriage whereby the Husband is obliged to take the conquest to the future Spouse in Conjunctâ—ee and the Heirs betwixt them Which failing the Heirs of the Mans Body which failing the Wifes Heirs whatsoever was found not to constitute the Wife Feear upon the â—ailing of Heirs of the Mans Body but the Husband February 20. 1667. Cranstoun contra Wilkison A Clause in the dispositive part of a Charter Cum privilegio piscaudi in aqua c. was found not to be a sufficient Right of Salmond-fishing unless Salmond-fishing had been thereby possesâ— forty years without interruption and so it is only a Title for Prescription February 27. 1667. Earl of Southesk contra Laird of Earlshall A Clause in a Bond bearing sums to be payed to a Man and his Wife and their Heirs beaâ—ing Annualrent though no Infeftment followed was found to give the Wifes Heirs no share seing the Money appeared not to have been hers and was presumed to be the Mans and he surviving did Revock the Substitution as a Donation betwixt Man and Wife Iune 19. 1667. Iohnstoun contra Cuninghame A Clause in an Assignation by a Father to his Daughter bearing a power to alter during his Life was found not to take effect by an Assignation to a third party who instantly granted a Back-bond bearing his Name was but in trust to do diligence and obliging himself to denude in favours of the Father his Heiâ—s and Assigneys but was not found to operate for the Fathers Heir but for the Daughter his Assigney Iuly 17. 1667. Scot contra Scot. A Clause in a Tack setting 14. Aâ—kers of Lands presently possest by the Tacks-man was found not to limite him to 14 Aikers of any present Measure seing he had possessed still since the Tack these 30. years albeit it was alleadged that besides 14. Aikers there were six Aikers severally â—enned and possest by different persons before that Tack Iuly 19. 1667. Daeâ— contra Kyle A Clause in a Bond bearing a sum borrowed from Husband and Wiâ—â— and payable to the longest liver of them two in Conjunctfee and to the Heirs betwixt them or their Assigneys which failing to the Heirs or Assigneys of the last liver was found to constitute the Husband Feâ—ar and the Wife Liferenter albeit she was last liver and the Heirs by the last Clause were but Heirs of provision to the Husband in case the Heirs of the Marriage failed Ianuary 26. 1668. Iustice contra Barclay his Mother A Clause in a Bond whereby a Woman obliged her self to enter heir of Line to her Father and to resign certain Lands in favours of her self and the heirs of her body which failing to the heirs of her Father and obliged her self to do nothing contrary to that Successionâ— whereupon Inhibition was used before her Marriage was found effectual against her and her Husband whom she Married thereafter and disponed the Lands to him and his heirs as being a voluntar deed without an equivalent cause onerous albeit by the said Bond of â—ailzie the heir of provision behâ—ved to be the heir to the Woman her self without discussing whether deeds done for causes onerous without collusion would be effectual against the said heir of provision Ianuary 28. 1668. Binnâ—â— contra Binnie A Clause in a second Contract of Marriage that the heirs of the Marriage should have right to Tacks acquired during the Marriage was found to extend to a new Tack obtained of Lands then possessed by the Father unless he had a Tack thereof before in Writ which if not expyred the new Tack would not be esteemed conquest if the new Tack were given for the old Iuly 3. 1668. Frazer contra Frazer A Clause in a Testament leaving a Legacy to a second Son in satisfaction of all he could befal by his Fathers deceass was found not to be in satisfaction of a debt due by his Father to that Son as having uplifted a Legacy left to him by his Mothers Father both not being above a competent provision by a Father in his condition to his Son December 15. 1668. Winâ—â—â—am contra Eleis A Clause in a Contract of of Marriage providing all the Husbands Goods and Gear acquired during the Marriage to the Wife for her Liferent use was found to be with the burden of the Husbands debt and only to be meaned of free Gear and not to exclude the Husbands Creditors at any time contracting December 23. 1668. Smith contra Muire A CLAVSE OF CONQVEST in a Wifes Contract of Marriage who was competently otherwayes provided was â—ound to carry the Lands conquest with the burden of a sum which the Husband declared under his hand to be a part of the price though the same would not hold in the burdening of heirs of conquest December 20. 1665. Lady Kilbocho contra Laird of Kilbocho This sum was due to the Seller of
to the Whitsâ—nday at which the Buyer was to Enter February 22. 1670. Murray of Auchtertyre contra Drummond A Disposition of Lands and universal Legacy both contained in one Infeftment in which there is a Sum provided to Children not being particularly annexed either to the Disposition of Legacy the Disposition of Lands being found null as being in a Testament the universal Legacy was found burdened with no part of the Provision seing by the Nullity of the Disposition the Children had Right to their Portion of the Lands which exceeded the Sum they were provided to February 1. 1671. Pringle contra Pringles A Disposition granted by a Person who was insolvent and thereafter notoriously Bankrupt was not reduced as not proceeding upon a necessary cause or as being a preference of one Creditor to another none having done diligence in respect the Disposition was granted for a Bargain of Victual sold and delivered a Month before the Disposition in question whereby the Disponer was alleadged to become Bankrupt but it was not decided whether a notorious Bankrupt could after he was so known prefer one Creditor to another when none of them had done diligence Iuly 20. 1671. Laird of Birkenâ—â—g contra Grahame of Craig A Disposition of Lands was found to imply an Assignation to the Reversion of a former Wodset and that it needed no intimation the Infeftment on the Disposition being Registrate though a posterior Assigney had first redeemed November 18. 1664. Guâ—hrie contra Idem December 5. 1665. Beg contra Beg. DIVISION of Lands and a Muire betwixt Co-heirs was reduced upon a considerable inequality though not near the half value and though the division proceeded upon the Reducers oâ—n Brief of division December 2. 1669. Monteith of Corruber contra Boid A DONATION was not presumed by a Mother to her Child by giving out Money in her Name with power to uplift and re-imploy in so far as she was debitor to the Child but pro reliquo December 20. 1661. Fleming contra her Children Donation of Aliment by a Mother to her Son who had no other means was presumed to Liberate him from Repetition but was not found so against his Step-Father for the years after his Marriage Iune 25. 1664. Melvil contra Ferguson Donatiâ— inter Virum uxorem was found Revockable albeit it was not a pure donation but in lieu of another quo ad excessum seing it was notabilis excessus November 20. 1662. Children of Wolmet contra Lady Wolmet and Dankeith her Husband Doâ—atio inter virum uxorem was sustained to recal the acceptance of an Infeftment in satisfaction of the Wifes Contract February 12. 1663. Relict of Morison contra his Heir Donation betwixt Man and Wife Revockable was found not to extend to a Contract of Marriage though made up during the Marriage there being none before November 22. 1664. Mâ—gil contra Ruthven of Gairn Donatio inter virum uxorem was found not revockable if it were granted upon consideration of what fell in by the Wife after her former Provisions though that would also have belonged to the Husband jure mariti yet might be the ground in gratitude of a Donation Remuneratory November 23. 1664. Halyburtoun contra Porteous Donatio inter virum uxorem being in question where there was no Contract of Marriage but an Infeftment of all that the man then had and after a second Infeftment but stante matrimonio The Lords found that the first was valide there being no Contract before but they reduced the second finding no remuneratory provision of the Wife to answer both November 23. 1664. Inter eosdem Donatio inter virum uxorem was found not to reach an Infeftment of Lands to warrand and make up the principal Lands in the Contract such a Rent albeit there was but a personal Obligement in the Contract and that the Obligement to Infeft in Warrandice was therein satisfied and extinct November 24. 1664. Nisbit contra Murâ—ay A Donation was presumed of Aliment by a Goodfire to his Daughters Child who was long in his House and after the Mothers death continued still without any agreement with the Father Iuly 21. 1665. Ludquharn contra Geight Donatio inter virum uxorem was found relevant to recal a Bond granted by a Hâ—â—band to his Wife bearing that he thought it convenient that they should leave a part and therefore obliged him to pay a Sum yearly for her aliment albeit it bear also that he should never quarrel or recal the same as importing a Renunciation of that priviledge February 6. 1666. Living stoun contra Beg. Donation betwixt Man and Wife was found to extend to a Charter bearing Lands and a Miln where the Contract of Marriage bear not the Miln and that it was not as an Explication of the parties meaning and so was revocked by a posterior disposition of the Husband to another February 5. 1667. Countess of Hume contra the Tenents of Oldâ—aâ—â—us and Hog Donation betwixt Man and Wife was found not to extend to a donation by a Husband to his Wifes Children of a former Marriage of her Goods belonging to him jure mariti and so was not revockable as done to the Wife though to her Bairns at her desire Ianuary 15. 1669 Hamiltoun contra Baynes A Donation by a Husband to his Wife by a Tack of his whole Lands not Liferented by her and bearing for Love and Favour and for enabling her to Aliment her Children and bearing a small duty in case there were Children and the full Rent if there were none was found valide as being remuneratory to make up the defect of the value which by Contract her Liferent Lands were obliged to be so much worth Superceeding to give answer wheither the Tack would be null at the instance of Creditors lending Sums after the Tack as latent and fraudulent if it were not proven remuneratory or wheither a donation betwixt Man and Wife is null and pendent as a Bairns Portion till the Husbands death and if the borrowing thereafter would prejudge the same there being no Lands left un-liferented thereby Ianuary 26. 1669. Chisâ—holm contra Lady Braâ— Donation betwixt Man and Wife revockable was found not to extend to Wife Subscribing her Husbands Testament by which her Liferent Lands were proâ—ided to their Daughter which was not â—ound alike as if it had been in favours of the Man himself who is naturally obliged to provide his Daughter Iuly 12. 1671. Murray contra Murray Donation by a Man to his Wife by a great additional Iointure where she was competently provided before was found not to be taken away by a posterior Testament made in lecto providing a less additional Iointure without mention of the former and being conditional that the said last addition should be at the Testators Fathers disposal if he returned to Scotland and he having returned and having Ratified the fiâ—st additional Ioynture the same was Sustained Iuly 18. 1671. Countess of Cassils contra Earl of
1665. Wat contra Russel Fraud in a debitors granting a Bond to his Brother and taking a discharge of the same daâ—e and Witnesses and thereby proponing a defense against an Assigney was found Relevant and receivable by way of Exception unless the Debitor could condescend upon a reasonable cause for which the Bond and Discharge were so granted that it might not inâ—eâ— their design to deceive any that should contract with the Receiver of the Bond December 4. 1665. Thomson contra Hendrisoâ— Fraudulent dispositions may be either Reduced by the Act of Parliament 1621. or declared to be affected with all Execution as if they were in the disponers person December 15. 1665. Eleâ—s contra Keith Vide Ianuary 8. 1669. Captain Newman contra Fraud was inferred by a Fathers granting a Bond to his Son who was Forisfamiliat without a cause onerâ—us albeit the Bond bear borrowed Money yet formerly it was found to be gratuitous and it bearing no Annualrent and only payable after the Fathers death the Father after the date of the Bond continuing in a considerable Trade and his Estate being insufficient to pay his debt the foresaid Bond and Adjudication thereon was Reduced at the instance of posterior Creditors as being a fraudulent conveyance betwixt the Father and Son to insnare Creditors and very hurtful to commerce February 12. 1669. Pot contra Pollock The same February 16. 1669. French contra Watson Fraud of Creditors was found valide to Reduce a Disposition of Moveables being omnium â—â—norum and that the Narrative bearing special onerous causes was not sufficient though the parties were not conjunct but that it behoved to be astructed otherwayes then by the acquirers Oath November 18. 1669. Hendrison contra Anderson Fraud of Creditors was inferred by the Act of Parliament 1691. against an only Son and appearand Heir provided to a great sum of Money by his Contract of Marriage so far as to make a part thereof forthcoming for satisfaction of an anterior creditor albeit the Father was not Insolvent or made Insolvent by the Contract and albeit the Contract bear no Assignment to an Heretable sum but actual payment of Money February 8. 1671. Wat contra Campbel of Kilpont Fraud was not inferred by the latency of a Translation to a Tack by a Husband to his Wife granted for quiting of her Liferent of Lands to his Creditors and therefore was preferred to an Acquirer thereafter upon an onerous cause February 7. 1670. Dam Elizabeth Burnet contra Sir Alexander Frazer A FRAVGHT was found only proportionably due to a Skipper where the Ship was not fully loaden unless he proved by Witnessâ—s that he intimate his going to Sea and required more loading and abode his â—y dayes without necessity to alleadge an Instrument and Protest taken thereon mentioning he was not fully fraughted and craving more Fraught Ianuary 13. 1665. contra Charters FRVITS Vide Cropt Gordoun contr Mâ—â—â—lloch GENERAL LETTERS upon Presentation or Collation of Ministers whether having benefices or modified Stipends are prohibite by Act of Sederunt and the same intimate to the Writers and Keepers of the Signet and Clerk to the Bills but that every Incumbent must have a Decreet conform although he produce his Predecessors Decrect conform Iune 3. 1665. A GIFT granted by the King Erecting kirk-Kirk-lands in a Temporal Lordship was found not to be habilâ—â— modus while the same was not vacant but in the hands of the Commendator albeit he was dishabilitat from brooking any Estate by his Fathers forefaâ—ture at the time of the Erection seing his dishabilitation was thereafter Rescinded in Parliament because he was no wayes accessory to his Fathers Crime whereupon his Temporal Provision was validate and the Erection medio tempore was postponed to a posterior Erection to the Commendatar himself upon his own dimission February 24. 1666. Sinclar contra Laird of Wâ—dderburn Gifts of Eâ—cheat competing the Gift last past in Exchequer but first past the Seals was preferred to the other though the other took Instruments against the Keeper of the Seal for delaying him seing the Instrument was after the other Gift was past December 6. 1662. Steuart contra Nasmith A Gift of a Ward being to the behove of the Superiors Heir and made 〈◊〉 of against the Vassals who had the Rights with absolute Warrandice the Gift was â—ound to accreâ—ce to the Vassals they paying a proportional part of the Composition February 15. 1665. Boyd of Pâ—nkâ—ll contra Tennents of Carsâ—lâ—ugh A Gift was found to be affected with a Back-bond granted by the Donator when the Gift past the Exchequer and was Registrate in the Books of Exchequer albeit the Back-bond was not conceived in favours of the Theâ—aurer but of a private person and albeit the Gift was assigned when it was incompleat before it past in Exchequer and the Assignation was intimat Ianuary 31. 1666. Dallace contra Frazer of Streiâ—haâ— Gifts of Escheat bearing all Goods to be acquired was â—ound to extend to Goods acquired within a year after the Gift only and not within a year after the Horning Iuly 2. 1669. Barclay contra Barclay HEIRS â—ound to have the benefite of an obligement to re-dispone Lands albeit Heirs were not expressed but appeared to be omitted by negligence seing the clause bear not that they should beâ—redeemable any time in the Disponers Life Ianuary 9. 1662. Earl of Murray contra Laird of Gairn Heirs were â—ound to have right to an Annualrent though Heirs were not exprest and though it bear only to be payed yearly to the Annualrenter and not Heretably or perpetually February 2. 1667. Pourie contra Dykes An Heir viz. a Son being inâ—eâ—t as Heir to his Mother dying without Issue his Brother Vâ—erine by that Mother not found Heir to him therein but his Father February 5. 1663. Lennox contra Lintoun An Heir found conveenable for the avail of her Marriage without calling the otherâ—Heir portioner who was dead Iune 26. 1666. Arbuthneâ— contra Keith HEIRS OF LINE and not of Conquest â—ound to have right to a Tack albeit Conquest Iune 23. 1663. Ferguson contra Ferguson An Heir of Line of a youngest Brother by a several Marriage found to be the immediate elder Brother of the former Marriage and not the eldest Brother Iune 20. 1664. Lady Clerkingtoun contra Steuart AN HEIR MALE was found to be presently lyable without discussing the Heir of Line where he was obliged to relieve the same November 22. 1665. Scot contra Bothwel of Aâ—â—hinleck AN HEIR SVBSTITVTE in a Bond was found not to make the Substitute Heir lyable in solidum but quo 〈◊〉 valorem of the sum this was a mutual Substitution of a sum payable to two Brothers or the surviver Iuly 3. 1666. Fleming contra Fleming Heirs have right in a Substitution though only a person by Name was Substitute without mention of Heirs and though that persoâ— died before the Institute Ianuary 5. 1670. Innes contra Innes AN HEIR APPARENT was allowed to have Aliment from
the Liferenter seing the whole Estate was either affected with the Liferent or the remainder thereof was appryzed from the appeared Heir for the Defuncts debts exceeding the value thereof February 13. 1662. Brown contra Liferenters of Rossie An Heir apparent was allowed to have Aliment of his Grand-Father though he had voluntarly infeâ—t his Son the Pursuers Father and though the Pursuer had a stock of Money Liferented by his Mother here the Grand-Father was Iately fallen to a plenteous Estate Iune 17. 1662. Ruthven Feâ—ar of Gairn contra Laird of Gairn An Heir apparent taking Right to Land from his Grand-Father was found not to enjoy the priviledge of a singular Successor and to be in no better case as to that Right than his Grand-Father albeit his Grand-Father was living and the Oye then not immediate Successor Iuly 23. 1662 Lord Frazer contra Laird of Phillorth An Heir Apparent was found to have Right to the Rents of â—is predecessors Lands although he dyed before he was Infeft and that the next Heir intrometting with the Reâ—â—s of the years that the former appearand Heir lived was lyable to pay the said appearand Heirs Aliment in so far as he Intrometted December 20. 1662. Lady Tarsappie contra Laird of Tarsappie An Heir apparent pursuing for Inspection ad deliberandum was found not to have interest to cause a party compt and run Probation that he might know the condition of the Herâ—tage though there was a contrary Decision observed by Dury March 16. 1637. Hume contra Hume of Blacketer seing the ordinary course since hath been contrary Iune 22. 1671. Lâ—sâ—ies contra Iaâ—â—ray HEIRS IN A TACK found not to require service but that such as might be served Heirs might enjoy the benefite thereof Iune 17. 1671. Boyd contra Sinclar HEIRSHIP MOVEABLES was found competent to one who was infeft in Lands and though the same was appryzed and the Appryzer infeft yet the legal was unexpyred and the appryzing stood but as a collateral Security not as a full Right February 26. 1663. Cuthbert of Draikies contra Monroâ— of Foulâ—s Heirship moveable was found to belong to an Heir of person who dyed only infeft in an Annualrent Iuly 19. 1664. Scrymzeour contra Executors of Murray Heirship moveable was not found competent to a person who was only Heir apparent of Tailzie and dyed never Infeâ—t Ianuary 27. 1666. Collonel Montgomerie contra Steuart Heirship moveable being renunced from the Heir of Line in favours of his Father was found not to return to him after his Fathers death but to belong to his Fathers Executors 〈◊〉 18. 1666. Pollock contra Rutherfoord Heirs 〈◊〉 clause AN HERETABLE Obligement quoad creditorem may be moveable quoad debitorem Iuly 25. 1662. Nasmith contra Iaâ—â—ray An Heretable Sum was found so to remain notwithstanding of a Requisition not being made conform to the clause of Requisition and so null as being provided to be required by the Husband with consent of the Wife whose consent was not adhibite nor was the showing the Creditors intention to require his Money enough not being made debiro modo Ianuary 18. 166â— Steuart contra Steuarts An Heretable Bond was found moveable by a charge thogh but against one of the Caâ—tioners Ianuary 24. 1666. Montgomery and his Spouse contra Steuart An Heretable Bond bearing a clause of Annualrent was found not to be moveable though the principal sum was not payable till the debitors death seing the first Term of payment of the Annualrent was past Iuly 31. 1666. Gordoun contra Keith Vide Bond Iune 28. 1665. and Iunâ— 26. 1668. ONE HOLDEN AS CONFEST was reponed against a Decreet of an inferiour Iudge albeit a Procurator compeared and took a day to produce him but without a Procuratory or proponing any Defense that might show any Information of the cause and so no warrand to compear November 24. 1665. Chalmers contra Lady Tinnel Holden as confest was not admitted against a Defender absent where the Messengers Execution did not bear personally apprehended but that the Messenger knew that the Defender was in his House but was forcibly keeped from access by his Wife Iuly 5. 1670. Lindsay and Swintoun contra Inglis AN HOLOGRAPH Discharge was found not to prove its date against an Assigney unless it were astructed by Adminicles or Witnesses that knew it subscribed of that date Ianuary 4. 1662. Dickie contra Montgomery A Holograph Writ proves not quo ad datam yet the date may be astructed by Witnesses above exception but persons of ordinary credite one of two being a Towns Officer were not found such Witnesses albeit no exception was competent against them for being ordinary Witnesses Iune 21. 1665. Bradie contra the Laird of Fairny Holograph was found proven by production of a Transumpt done judicially and the Oaths of the Witnesses and Friends of the Defunct who made the Wriâ— Transumed amongst his Children altering their portions and though a part of it was written by another when the Defunct was so weak that he could not write yet the writ was found holograph as to the rest but not as to this Article albeit the principal writ was lost and not produced but only the judicial Transumpt taken off when it was produced Iuly 30. 1668. Mckenzie contra Ballaâ—dine of Newhall Vide Death-bed November 14. 1668. Calderwood contra Schaw HOMOLOGATION to communicate Appryzings was found not to be inferred by the singular Successors concurring de facto against third parties unless it were proven by the singular Successors Oath that he knew of such a Bond Iuly 6. 1661. Tailzifer contra Maxtoun and Cunninghamâ— Homologation of a Decreet was not inferred by payment thereof without a Charge seing the Givers thereof were Officers having no Commission or any civil Authority Iuly 24. 1661. Iack contra Feddes Homologation of a Decreet Arbitral quoad one of many Articles of different matters was found not sufficient for the whole November 22. 1662. Pringle contra Din. Homologation of a Fathers Legacy to his Children was inferred by his Wife Confirming the Testament without Protestation not to prove that Legacy here the Wife by her Contract was provided to the Liferent of all her Husbands Moveables February 19. 1663. More contra Stirling Homologation of an Infeftment granted to a Wife in satisfaction of her Contract of Marriage was inferred by her continuing six or seven years to possess and setting several Tacks as Liferentrix where the clause in the Contract was only in general to imploy Money on Land or Annualrent and no Infeftment followed thereon nor was the Husband in possession in his Life but the Wise began the Possession albeit the acceptance of the Infeftment was to her prejudice and was not in her hand nor did the Seasine repeat that provision particularly But only according to the conditions contained in the Bond the Seasine being Registrate and the Bond still in the Nottars hand Who took the Seasine in which case the Wife was presumed to know and
being Extracted on the improbation though it be omnium exceptionum ultima Ianuary 23. 1666. contra Earl of Kinghorn In Improbations the Lords declared they would grant three Terms for production of Rights of Lands and appointed the Ordinary to intimate the same November 26. 1667. Hay of Haystoun contra Drummond and Hepburn Improbation upon certification was found null because the Defender was then Prisoner of War in Ireland and his Right was after acknowledged by an agreeement though not perfected Iuly 25. 16â—8 Campbeâ— câ—ntra Laird of Glenâ—rchy In an Improbation the Witnesses insert were examined ex officio what they knew of the Truth or Forgery of the Writs in question though the Writs were not produced there being pregnant presumptions and fragrant fame of Forgery Iuly 6. 1669. Barclay contra Barclay In an Improbation after certification was Extracted The Lords Examined Witnesses as to the Forgery in so far as it might be known without production of the Writs in question and though thâ— Witnesses were accessory to the Forgery November 9. 1669. Inter eosdem In an Improbation where the Writs were once judicially produced in Exchequer and wilfully keeped up certification being Extracted The Lords upon Copies Examined the Witnesses insert and Writer who confessed the Forgery and were moved thereto by the Defender whereupon the Writs were not improven as not being produced but the Writers and Witnesses were found Forgers and the Defender as user and accessory and all were declared infamous and remitted to the Council to use an extraordinary Remedy by Banishment against the Defender Ianuary 26. 1670 Inter eosdem In an Improbation where one of the Witnesses insert had a Designation alleadged competent to more persons all that were alleadged to be so designed that were alive were ordained to be Summoned and the hand writs of those that were dead to be produced Iune 8. 1671. Steuart contra Mckenzie and Kettlestoun In an Improbation of the Minute of a Tack wherein one Deponed that he had subscribed at the Defenders Instigation who told him that he caused the Pursuers Name to be set to the Writ and another that he did not see the Pursuer subscribe and the third who was Writer of the Minute and also Brother to the Defender Deponed that he saw the Pursuer subscribe with her own hand The Writ was found improven and false but there was not two Witnesses instructing who was the Forgeâ— Iuly 22. 1671. Miller contra Bothwel of Glâ—â—corse INCIDENT was not Sustained upon an Act before answer ordaining all Writs to be produced the parties would make use of which was found only to extend to such Writs as they then had Iuly 3. 1662. Kello contra Paâ—toun In an Incident four Terms were allowed for proving the having of the Writs by Witnesses but the Terms were to be short December 15. 1665. Moâ—teith contra Anderson An Incident was Rejected because the Pursuer of the principal Cause was not called thereby and the Executions suspect December 23. 1665. Laird of Câ—â—neck contra Lord Bargeniâ— Incident was not Sustained at the instance of any but these whose Names as Purshers were filled up in the Bill though it contained a blank but it was Sustained against the Defenders havers of the Writs for whom a blank was left though nor at first filled up in respect of the custom for the last and not for the first Iuly 3. 1667. Creditors of Waâ—chtoun contra Counteâ—s of Hume PRO INDIVISO was not sustained to hinder Removing of a Relick from an House as being a Tenement Indivisible though she had a Terce of it but the Heretor was found to have Right to possess yet so that if he dwelt not so himself she should be preferred to all others she giving like Mail as others would pay Ianuary 26. 1665. Logan contra Galbraith INFEFTMENT of Annualrent holden base was found valide against a posterior Publick Infeftment because thereon there was a Decreet of poinding the Ground though it could take no effect for a long time seing the Entry to the Annualrent was not till after the Constituents death February 26 and 27. 1662. Creditors of Kinglassie competing Infeftment past in Exchequer on an appryzing against one who was Infeft by his Authour not Confirmed was found not to supply or comprehend a Confirmation in prejudice of another Creditor who regularly had obtained Confirmation of that null Seasine in so far as might concern his base Right depending thereon Ianuary 16. 1663. Tennents of Kilchattan contra Laird of Kilchattan Major Campbel and Baillie Hamiltoun Infeftments graâ—uitous to a Wife after she was provided by her Contract of Marriage was found not to be taken away at the instance of Creditors upon the Act 1621. by Exception or Reply Iuly 22. 1664. Lord Loure contra Lady Craig An Infeftment to a Wife in Liferent was Sustained by her Seasine adminiculat by her Contract albeit the Seasine was not immediatly upon the Contract but related a Bond granted for the same Cause which was not produced Ianuary 29. 1665. Norvil contra Sunter Infeftment of warrandice Lands being in the same Investiture with the principal Lands and both holden base was preferred to a posterior publick Infeftment of thâ— same Warrandice Lands though cled with long possession and that upon an Action of Mails and Duties upon the Distresse without Reduction Ianuary 9. 1666. Brown contra Scot. An Infeftment of Kirklands was Sustained though it bear to be upon Resignation and had not the râ—ddendoâ—per expressum but relative to the former Infeftment without necessity to produce any original Right seing the Charter was subscribed by the Abbot with consent of the Convent Ianuary 17. 1666. Lord Rentoun contra Feuars of Coldinghame An Infeftment to a person on her own Resignation bearing expresly her to be Heir to her Father who was last Infeft The Charter was found equivalent to a precept of clare constat Ianuâ—ry 20. 1666. Inter eosdem Infeftment of the Office Forrestrie with a Duty out of the whole Lands of an Abbacy was found valide being granted by the Abbot and Convent without Confirmation by the King or Pope Ibidem Infeftment in warrandice granted by a Husband to his Wife though base holden of himself and ex intervallo after the principal Infeftment was found valide against a posterior publick Infeftment of the same warrandice Lands as being cled with the Husbands Possession in the principal Lands and that there needed no Declarator of Distress or Eviction but a pursuit of Removing or Mails and duties upon the Eviction is sufficient which cannot be excluded by a possessory Iudgement upon seven years Possession by the publick Infeftment unless it were seven years after the Eviction February 20. 1668. Forbes contra Innes An Infeftment of Annualrent being before a Liferenters Infeftment after which there followed a corroborative Security accumulating the bygone Annualrents and giving Infeftment for both which posterior Security was not Sustained against the Liferenter nor was it held
as if it has been a poinding of the Ground February 13. 1669. Mclellan contra Lady Kilcuâ—bright An Infeftment to be holden of the Superiour not Confirmed waâ— found null albeit it was only granted for Security of â— Wiâ—es â—iferent conform to her Contract of Marriage Iuly 2â— 1669. Gray contra Ker. An Infeftment of Annualrent was found extinct by the Annualrenters intrometting with the Annualrents of the Lands equivalent to the principal sum February 4. 1671. Wishart contra Arthur An Infeftment was found null by reply without Reduction whereby a Woman was served Heir to her Mother in a Teneâ—entâ— in which her Mother and Father were infeft in Conjunct â—ee albeit she had probable Ground to think her Mother was Feear seing her Father was found to be Feear and that she was not 〈◊〉 〈◊〉 by Retour but by precept of favour here seven years possession was not alleadged to give the benefite of a possessory judgement Iuly 1â— 1671. Gairns contra Saâ—â—ilands â— Infeftment Vide base Infeftment INHIBITION was found not to Reach Lands acquired after it lying in another jurisdiction then where it was published and Registrate Iuly 18. 1662. Smeateun contra An Inhibition was found to be valide to reduce or declare against the Person Inhibite not only for the Lands he had the time of the Inhibition but these acquired thereafter December 15. 1665. Eleâ—s contra Keith An Inhibition of Teinds was found sufficiently execute by a Sheriff in that part and not by a Messenger being direct to Messengers Sheriffs in that part which was sufficient to interrupt tacit Relocation Ianuary 27. 1666. Earl of Eglintoun contra Laird of Cunninghamehead Inhibition being used on a Sum was found sufficient to reduce and that the Inhibition and Reduction thereon could not be purged by payment of the sum whereon it proceeded with Annualrent and Expenses seing there was a supervenient appryzing upon the Sum which was now expyred February 24. 1666. Grant contra Grant Inhibition was found to extend to Rights acquired after the Inhibition but not to a Wodset acquired after and Renunced upon payment without abiding an Order albeit Renunciations be by the style of the Inhibitions prohibite yet they are but as Discharges of â—eretable debts or annualrents against which Inhibitions operate not to cause them pay again Iuly 16. 1667. Eleis contra Keith and Steuart Inhibition was found to extend to Lands acquired after the publication thereof lying in the Shire where it was published February 27. 1667. inter eosdem Inhibition on a Dependence was found to take no effect whâ—re no judicial Sentence followed but a Transaction on arbitriment December 16. 1668. Frazar contra Keith An Inhibition was found to reduce a disposition though its date was anterior to the Inhibition as to some Creditors whose Names and sums were filled up in it by another hand which was presumed to have been blank and filled up aâ—ter ter Inhibition unless the contrary were proven by Witnesses above exception Ianuary 15. 1670. Lady Lucia Hamiltoun contra Creditors of Montcastle An Inhibition was found null because the Executions thereof bear not a Copy to have been left at the Mercat Cross where it was published February 12. 1670. Naper contra Gordoun of Grange Inhibition of Teinds was found not to give Right to draw the Teind without Sentence where the Hereâ—or had any colourable Title Ianuary 27. 1665. Barefoord and Bennistoun contra Lord Kingstoun Inhibition was found Relevant to Reduce the Rights of Creditors albeit there was a Disposition to two Parties for themselves and for the behove of other Creditors under-written after which there was a large blank filled up with an other hand in which the Creditors in question were insert which blank so filled up was holden as after the Inhibition and a prior communing to take in these Creditors and undertaking their debts by the persons to whom the Disposition was made was not Sustained to be proven by their oaths or by the oathes of Witnesses but only by Writ or oath of knowledge of the Pursuer Iuly 8. 1670. Lady Lucia Hamiltoun contra Boyd of Pitcon and others Inhibition being pursued upon to Reduce and the Pursuer offering to accept the Sums in the Inhibition cum omni causa albeit there was an expyred Compryzing led upon the Sums the Defender craving that the Pursuer would assign the Sums The Lords found that the Pursuer could not be compelled to assign the same in respect the offer was only to take satisfaction and Renunce whereby the Cautioner might not be distrest Inter eosdem Inhibition was found null by Declarator because the Executions as they were Registrate did not bear a Copy given to the party inhibite albeit the publication at the Mercat Cross bear a Copy affixed and that the Messenger had added upon the Margent the delivery of a Copy which was found an essential requisite in the Execution and that not being Registrate with the Execution the same was null and could not be supplyed by proving by the Witnesses insert thaâ— a Copy was truely given against a singular Successor who had bought the Lands for a just price Iuly 28. 1671. Keith contra Iohnstoun â—INTERDICTION against a Defunct was found only to extend to the Lands lying within the lurisdiction where it was published and Registrate but not to the other Lands nor to Heirship moveable or other moveables so that the Heir succeeding therein is lyable notwithstanding February 11. 1662. Ramsay of Torbane contra Mcclellaâ— Interdiction albeit it be not Sustainable by way of Defense to delay a pursuit yet it was sustained by way of Reply seing the pursuer might delay himself â—â—d that otherwise he behoved to quite the Possession and then Reduce to recover it again February 13. 1663. Lockhart contra Kennedy Inâ—erdiction of a Man by â—ond bearing he should not sell nor dispone without consent of his Wife on the Narrative of his facility whereupon Inhibition was used was found not to stand as an Interdiction being inconsistent to bind a man to the direction of his Wife but that it stood in so far as might be interpret an obligement in the Wifes own favours for her proper interest to secure her an Aliment according to her quality February 27. 1665. Laird of Milntoun contra Lady Milntoun Interdiction was found to give interest to Appryzers or Adjudgers from the Heir of the Person interdicted to reduce any voluntary Disposition thereupon albeit they had no special Title to the Interdiction but had only appryzed the Lands of the person Interdicted cum omni jure and albeit there was an anterior Appryzer the benefite of the Interdiction was found appropriat to neither but common to both February 20. 1666. Lord Saltoun contra Laird of Park and Rothemay Interdiction was found not to have any effect as to Moveables or personal Execution by may of Exception without Reduction Iune 20. 1671. Crawfoord contra Hallyburtoun INTERRVPTION of the Prescription of a common Pasturage
was found sufficient by turning off the Parties Cattel without necessity to alleadge an instrument of Interruption or keeping them off for a long time together November 14. 1662. Nicolson contra Laird of Balbirnie Interruption of a possessory judgement hinders the beginning of a new possessory judgement by seven years Possession after interruption until prescription Iuly 22. 1664. Montgomery contra Hume The like of Decennalis Triâ—nnalis Possession Iune 28. 1666. Laird of Phillorth contra Lord Frazer Interruption by a Summonds of Reduction and Citation thereupon was Sustained albeit the Reasons of Reduction were not filled up within the 40. years seing the Reduction was upon Minority and Lesion which was insinuate by the interest libelled ab initio viz. That the Pursuer as Heir to his Sister had good Interest to reduce all deeds done to her enorm lesion Iuly 14. 1669. Earl of Marischal contra Leith of Whiteâ—augh Interruption was Sustained by a Citation only at the Mercat Cross proceeding upon a Warrâ—nd to cite at the Mercat Cross quia non fuit â—utus accessus which was neither true not instructed but pasâ— by Bill of course amongst the common Bills and the Executions did not bear a Copy leâ—t at the Cross the Pursuer adding that to the Execution Iuly 6. 1671. Mcbrae contra Lord Mâ—dâ—nald Interruption was Sustained by a second Summonds though the first Summonds should be found nulâ— and though the Citation was only a day before the fourty years compleat Ibidem INTIMATION of a Right of Reversion was found not necessary where he that had the Right was Infeâ—t therein albeit he used no Diligence and which preferred him to a posterior Assigney although Redeeming first and possessing November 1â— 1664. Guthriâ— contra Laird of Sornbeg INTROMISSION being by many persons promiscuous was found not to oblige them in solidum but equally prorata unless a greater part were proven against them thogh the Intromission was vitious and had been a Spuilzie but not pursued within three years Ianuary 17â— 1667. Captain Strachan contra Morison Intromission being proven by clear and pregnant Testimonies of Witnesses though not in Litisconâ—estaâ—ion but to remain in 〈◊〉 no contrary probation was admitted even ex officio to prove that others did Intromet although Tacks and Wodsets granted to them were produced and the Possession and Intromission conform was offered to be proven and though the Intromission was more then 40. years since in respect the alleadgeance was founded super jure terâ—ij the Alleadger shewing no Right to the Wodsets or how the same were satisfied and the intromission being proven by removing the common Author and entering to the Natural Possession by 〈◊〉 Ianuary â—â— 1671. Kello contra Kinâ—â—â— â—VS MARITI was found to carry the Right of a sum assigned to a Wife while she was cled with â— Husband without necessity to instruct that it was also intimate before his death Ianuary 20. 1663. Scot contra Dickson Ius mariti was found not to carry the Right to a Provision granted by the Father to the Daughter bearing and Annualrent though but five per câ—nt the Term of payment of the Annualrent being past before the Marriage Iune 28. 1665. 〈◊〉 contra Edgar Ius mariti being Renunced was found not to take away the Husbands power of ordering his Family and disposing of duties appointed by the Wife of her former Ioynture for the use of their Families joyntly which was not found to give the Wife a distinct â—â—â—are of it or a power to mannage it but to enjoy her share under the Husbands mannadgement February 1667. Ratho and Coâ—â—ngâ—oun contra Tennents of Inâ—ertile and Lady Câ—llingtoun Ius mariti was found to be a Legal Assignation and being compleat with the Marriage a voluntar Right by the Wife of the same daâ—e with a Tack relating to the Agreement of Marriage granted by the Wife to her second Sonâ— leaving nothing to her Husband was found excluded thereby as not being intimate before the Marriage and being fraudulent in the Wife and null even against her Son though not partaker of the fraud not being an Acquirer for an onerous Cause in so far as might prejudge the Husband December 18. 1667. Auchinâ—eck contra Williamson and Gillespie IVS SVPERVENIENS c. was eâ—tended to any Right real accrescing to the Hereâ—or by one who had Right from the Vsurpers though that Right be fallen seing it was consequent on the true Hereâ—ors Right as obtaining Improbation of other Rights Iuly 13. 1664. Earl of Lawderdaâ—â— contra Wolmet Ius supervenâ—ens authori accrescit successori was found not to hold where there does not appear a full equivalent Cause onerous of the Successors Right or absolute Warrandice here the first Right was Reduced and the new Right but personal to the Mails and Duties till such a sum were satisfied Iuly 19. 1664. Dowglas and Longformacus her Spouse contra Laird of Wedderburn Ius superveniens authori accrescens successori was found to make a giâ—t of Ward to the behove of the Superiour accresce to the Vassal to whom he was bound in absolute Warrandice they paying a part of the expence February 15. 1665. Boyd of Pinkill contra Tennents of Carsâ—leuâ—â— Ius superveniens authori accrescens successori was found to have thir effects that a Tack for a small duty granted for sums of Money with absolute warrandice was not prejudged because the â—etter was not then Infeft nor excluded by a posterior Heretable Disposition of the Lands albeit the Authors supervenient Right was procured by the Acquirer of the said Disposition who infeft his author and himself both of the same date and who alleadged that his Authors Right being procured by him could not accresce to the Tackâ—â—man in his prejudice Iune 21. 1671. Neiâ—son contra Menzeis of Enoch IVS TERTII was found to exclude an exception upon on Assignation intimate to the Debitor and a Decreet thereon seing there was no payment but granâ—ing Suspension without Caution or Consignation that the parties might dispute their Rights Iune 16. 1665. Bruce contra Earl of Morâ—oun â—us tertii was found not to hinder an Appryzer to quarrel another Appryzers Right as wanting an Assignation to the debt on which the Appryzing proceeded albeit he had no Right from that Cedent nor any other interest but to exclude the Appryzing as informal albeit that Cedents Heir had renued the Assignation and deâ—lared that there was a prior Assignation by his Father and that his Right was in Trust Iuly 22. 1668. Iohnstoun of Sheeâ—s contra Arnold THE KINGS PALACE of Hâ—ly-rude-house was found to be exâ—mpted from the Regality of Brughtoun and in the Royalty and Citations against Parties residing there at the Cross of Edinburgh were Sustained Ianuary 11. 1662. Lady Carnagie contra Lord Cranburn KNOWLEDGE though private hinders bonae fidei possessor lucrari fructus November 20. 166â— Children of Wolmet contra Lady Wolmet and Dankeith her Husband LAW of Scotland only Regulates Succession of
Scotsmen as to their Lands and Goods in Scotland though they reside and 〈◊〉 abroad and no nuncupative Testament there can exclude the nearest of kin hâ—re Ianuary 19. 1665. Schaw contra 〈◊〉 The Law of England was found to reach the manner of probation of a Bond made there by an English-man to a Scots-man residing 〈◊〉 after the stâ—le of England and that payment to the Cedent was probable by the Cedents Oath and payment also probable by Witnesses Iune 28. 1666. Momâ—rlane contra Lord Melvil Yet a Bond by a Scots-man to an English-man in England after the stile of Scotland Registrable there was found Regulate by the Law of Scotland and noâ— taken away by Witnesses Ibidem A LEGACY of an Heretable Right was found null though in leâ—ge poâ—stie February 21. 1663. Wardlaw contra Frazer of Kilmundie A Legacy leâ—t of 600. merkâ— and in part thereof the Executors ordained to Discharge or give Back-bond of 200. merks due to the Testaâ—rix which Bond was found to belong â—o the Husband jure mariti and that being Moveable the Wife had but her half of it yet the Lords found that the Executors ought to make it upâ— to the Legataâ— as lâ—gâ—tum rei aliena scienter legatâ— for that being a palpable principle in Law they could not excuse the Wifes ignorance therein Iune 16 1664. Murray contra Executors of Rutherfoord A Legacy being special was found not to be abated proportionally with ordinary Legacies in case they exceed the Deeds part Iuly 21. 1665. Sprâ—â—l contra Murray A Legacy of a Bond in special was sustained though the Executor had an Assignation thereto from the Defunct seing the same Legacy might be made up of the 〈◊〉 Gear as being lâ—gatum rei alienâ— seing it was presumed that the Defunct remembred his own Assignation Iune 24 1664. Falâ—â—nâ—r contra Mcdâ—wgal LICENCE to pursue was sâ—stained without Confirmation though granted after the principal Testament was Confirmed being to a Creditor Iune â—0 1665. Stevinson contra Crawfoord Licence to pursue was sustained after Confirmation of the principal Testament and before Confirmation of Datives ad ommissa February 21. 166â— Scot of Clâ—rkingtoâ—n contra Lady Clâ—rkingtoun AFTER LIâ—ISCONTESTATION Alleadgeances instantly verified are receivable Iune 24. 1663. Bruce contrâ— Laird of Strâ—â—chan Litiscontâ—â—â—ation being made before the Commissars at a parties instance as Factor it was found relevant against that party pursuing as Executor Creditor being instantly verified February 10. 1663. Crawfoord contra Creditors of Inglis LOCVS PENITENTIAE was found to have no place in an agreement to take a lesâ— sum it being as pactâ—â— libâ—ratoriâ—m though writ was not interposed others of the parties Transactors having payed conform December 12. 1661. Hâ—pburn contra Hamiltâ—â—n of Orbiâ—â—â—um The like in restricting an annualrent to a part of the Lands â—ffected February â— 1666. 〈◊〉 contrâ— Hunter and Tennents of Cambâ— Locus 〈◊〉 was found competent to one who had bought Lands though he had written that he thought he could not be able to keep the Bargain and furnish the Money yet subâ—oyned that he would not pass from the communing and albeit he had received the Keyâ— of the House seing there was neither Minute nor other Wâ—â—t drawn up â—hâ—reupon Ianuary 28. 1663. Mâ—ntgomry of Skâ—lmorly contra Brown THE LORDS Sallatles or the Pensions of the King are not arrestable conform to a Letter of the Kings and Act of Sederunt February 8. 1662. contra Murray The Lords found themselveâ— competent to Iudge the Nullities of the Decreets of the Commission for Plantation of Kirkâ— which werâ— visible and instantly vâ—rified and needed no Reduction as that a Decrâ—et against an Heretor not called was null Ianuary 16. 1663. Earl of Roxburgh contra Kinnâ—â—r The Lords found themselves competent to Iudge upon the Iustice Generals Decreet for Assythment which hath but a civil effect for damnage December 16. 1664. Innes contra Forbâ—s of Tolqâ—â—â—nâ— The Lords gave warrant Summarly upon Supplication to take the person of a Bankrupt who was unexpectedly and fraudfully fled Novâ—mbâ—r 30. 1665. Creditors of Masson Supplicants The Lords albeit they are not Iudges in Causes Criminal yet they found themselves coâ—petent to Advocaâ—e a Criminal Cause of Theft but upon the old Act of Parliament of King Iamâ—s the second from â— Sheriff to the Iustice General February 21. 1â—66 contra Sheriâ—â— of Invâ—rnâ—ssâ— The Lords deposed a Writer to 〈◊〉 â—igneâ— for inserting an Article for possessing a party in Letters of Horning having no warrand for the said Article Ianuary â— 1669. Zeaman contra Monreiff The Lords upon a Bill for Horning upon Excommunication allowed the party Excommunicate 〈◊〉 object against the Groâ—nds of Excommunication who having founded upon an appeal to the King and Council The Lordâ— having had an account from the Council that they had Remitted that matter to the â—ishop did pass the Hoâ—â—ing Iuly 6. 1670. Archbishop and Presbytery of St. Andrâ—wâ— contra Pittillâ— LVCRATIVE SVCCESSOR was not inferred by a Disposition and Infeftment to the behove of the appearand Heâ—r but only in so far as was Lucrative 〈◊〉 valorâ—m Ianuary 14. 1662 Harper contra Hume of â—landergast Lucrative Successor was not inferred by a Disposition by an Vncle to his Nephew the Brother being alive who was not found alioqui successurus as in the case of an Oye November 22. 166â— Scâ—â— coâ—tra Bâ—ssâ—wel of Auchinleck Lucrative Successor was inferred by an Assignation of an Heretable Bond by â— Father to his eldest Son who would have succeeded him as Heir therein and that the same was not alike with Bonds of Provision wherein in Father 〈◊〉 only Deâ—itor to the Son Dâ—câ—mbâ—r â— 1665. Edgar contra Colvil Lucrative Successor was not inferred by accepting of a Tocher yet so as if the Tocher were exorbitant both Husband and Wife were found lyable to the Fathers Creditors for what was above a competent Tocher December 23. 1665. Burnet contra Lepers LIFE being presumed was taken off by the Parties being â—â— years out of the Counâ—rey and commoâ—ly â—olden an◠〈…〉 There waâ— also a Letter produced by a 〈◊〉 in the Waâ— bearing that the party was dead February 18. 1670. Lowry contra Drummond LIFERENTERS of an annuaIrent waâ— found Iyable for publick burden with the 〈◊〉 albeit the Act 164â— thereanent was Rescinded as being due in jure Iune 18. 166â— Fleming contra Gillies A Liâ—erenter being Infeft in a Liferent of Lands cum mâ—llâ—ndiniâ— was found to have right to a Miln builded thereafter upon the Land by her Husband but not to the abstracted Multures of his Lands except the Liferent Lands February 16. 1666. Lady Otter contra Laird of Otter A Liferenter being by her Contract â—nfeft in Lands obliged to be worth such a Rent besides Teinds and Feâ—-duties or at her option the heir was obliged to accept a Tack of the Lands for the like sum of free Rent by free Rent was not only understood free of Feu and Teind Duty as is exprest
contra Strangers of Oâ—â—end but the Kings 10th part and Admirals 15th part were not allowed A Pryze Ship of Hamburgh taken as carrying Counterband-Goods to the Daâ—es after Acts of Hostility betwixt the King and them was liberate because she was taken before the Proclamation of the War against the Danes but the Captain was found to have probable Ground to Seaze and was found only lyable for what profite he had made of the Ship and Goods unless he had been thâ— culpa by the spoiling or mis-appryzing thereof February 25. 1668. Merchants of Hamburgh contra Captain Disâ—ingtoun A Pryze Ship belonging to the Sweds was found Warâ—antably taken because she was Navigat with Hollanders the Kings Enemies contrary the Kings Proclamaâ—ion of War albeit they hâ—d a pass conform to the Swedish Treaty wherein it is permitted to the Sweds to make use of Hollanders as Masters he becoming a sworn Burges of their Town without mention of what Nation the remnant company mighâ— be of February 25. 1668. Owners of the Ship called the Castle of Riga contra Captain Seaâ—oun A Prize Ship was found justly adjudged because a great part of the company were Hollanders in respect of the Kings Proclamation of War ordaining Ships to be taken that had in them any number of men or goods belonging to Enemies albeit the Ship was a Swedish Ship and had a pass conform to the Swedish Treaty which bear that such a pass being found there should be no further inquiry in men or goods â—isi gravis suspitiâ—o subsit seing that Treaty bear a liberty to the Sâ—eds to have a Hollands Master becoming a sworn Burges of any Town of Sweden and had no such priviledge for the mariners Iune 30. 1668. Paterson contra Captain Anderson A prize Ship was found justly taken being insisted against on several grounds as having a number of the Kings Enemies the Hollanders Sailers being only proven to be three and the company nine as having been two years with the Kings Enemies Merchandizing but not in the War and by having a small parcel of Tar as Counterband in the same Voyage upon all joyntly the Lords declared but not upon any point alone Iuly 9. 1668. Captaâ—â— Allan contra Parkman In prize Ships competent and omitted as a particular custom of Scotland was not sustained against the strangers but they were found to have the benefite of the Law of Nations Iune 15. 1669. Loyson contra Laird of Ludâ—uharâ— and Captain Wilson A prize Ship declared as carrying Counterband having on Board Oak cutted at three foot and an half for making Barrels in respect the Admirals Commission bear Clapboard as counterband though Testimonies from the Admiralities of England Holland and Flanders were produced that such Timber was not accompted counterband a great number of the Lords being of a contrary judgement Iune 29. 1669. Captain contra A prize Ship being in question which being alleadged to be fraughted from Norway to London with Timber by the Kings proclamation warranding Ships even of his Enemies Countreys to be imployed for bringing Timber for the Rebuilding of London they getting certificates and passes from the Duke of York the Ship having on Board 1500. Dails not belonging to the London Merchants the same was found sufficient to confiâ—cate the Ship and these Dails but not to confiscate the Cargo belonging to the English Merchands if he could produce a pass conform to the Proclamation and the Kings Letter bearing that he was sufficiently informed that this Ship had a valide pass and therefore ordering her to be restored was not found Relevant to liberate the Ship or Merchants Cargo without production of the pass but the Letter was understood to be â—alvo jure not proceeding upon the hearing of parties albeit the Duke of York did asset that he had formerly given a pass to that Ship Iuly 13. 1669. Captain Wood contra Neâ—lson here the Skippers Testimony alonâ— was received to prove against the Owners A prize Ship being adjudged by the Admiral and the Decreet being quarrelled because the Skipper had a pass declaring the Ship and Goods wholly belonging to the Sweds the Kings Allys the pass was conform to the Swedish Treaty which clears expresly that where such passes are â—eqâ—id amplâ—s exigatur in bonâ— aut homines nullo modo inquiratur The adjudication was sustained in respect that the pass by the oath of the Skipper and company was found to be a contrivance and there was no sufficient probation that the Ship and Goods belonged to the Sweds and that the Treaty bears si qua gravis suspâ—â—io subsit that seazure may be made Iune 29. 1671. Burrow contra Captain 〈◊〉 A PVPILS person was found to be keeped by her Mother who was Widow till her age of eleven years and then by a Friend of her Fathers side but not by the Tutor who was nearest to succeed February 6. 1666 Laird of Dâ—ry contra Relict and Daughter of his Brother RATIHABITION Vide Clause Ianuary 9. 1663. Mason contra Hunter RECOGNITION committed by a Defunct's alienation was not stopped upon the priviledge of Minority quo minor non tenetur placitare c. February 19. 1662. Lady Carnagy contra a Lord Cranburn Recognition was not clided because as importing ingratitude which is criminal it was purged with the death of the Committer but was sustained against his Successor Ibidem Recognition was found to be incurred by alienation of Ward Lands albeit the Seasine taken was without the Acquirers Mandat subscribed but by a general Mandat out of the Chancellary seing it was taken by his Grand-father giver of the Alienation and albeit the Disposition bear only â—ailing of the Disponers Heirs of his Body seing it had a Warrand for seasing this party de preseâ—ti nominatim nor was it reduced upon Minority to annul the Seasine and shun the Recognition Ianuary 30. 1663. Inter eosdem Recognition was incurred by giving an Infeftment base to a Grand child not being then alioqui successuruâ— of Ward Lands though Taxed Ward and though granted to Heirs and Assigneys which was only understood that the Disposion Charter or Precept before Seasine might be assigned but not after nor was it respected that the Seasine as not Confirmed was null nor that it implyed a tacit condition that the Superior consented nor that the Giver was an illiterat person and the case dubious here the case was favourable for the Donatar who was the Disponers eldest Daughter and who was past by and the second Daughters Heirs though strangers were preferred in all February 5. 1663. Inter eosdem A Donatar of Recognition granting a Precept to a Vassal in the Lands falling in Recognition acknowledging that Vassals predecessors Right and his own in the ordinary Terms of a precept of clare constat albeit the precept did also bear in obedience of Precepts out of the Chancellary yet the same with the Seasine following thereon was found to exclude the Donatat and all deriving Right from him thereafter
Iuly 27. 1662. Watson contra Elâ—is â— Here Haâ—â—age and Carrage were excepted to the King Superiority and property of the same right coming in the same persons by distinct means and they infeft in the superiority and supplicating the Lords that they would ordain precepts out of the Chancellary to infeft them in the property seing they could not infeft themselves The Lords thought that they might be either infeft upon the Kings precept or their own precept or both November 26. 1668. Daughters of Moâ—â—oun supplicants IN A SVSPENSION a reason of payment by another Co-principal was not found requisite to be instantly verified nor the Defender put to find better Caution though it was alleadged he was in hazard of breaking but only to give his oath de calumnia Iuly 15. 1665. Vrquhart contra Blair Suspension of a Minister was found not to take away his stipend he not being deposed Iuly 26. 1661. Ker contra Minister and Parochioners of Carrin Suspension granted on supplication of all Hornings that should be condescended on for Relaxation only and to give personam standi in judgement without stoping any other execution December 7. 1669. Vrquhart supplicant TACIT RELOCATION was found to indure for more years during which it was not quarrelled not the beneficed person could expreâ—ly set together Ianuary 16. 1663. Earl of Errol câ—ntra parochioners of Vry Tacit Relocation of a Tennent warned cannot defend â—he sub-tennent against singular successors who would only warn natural Possessors Ianuary 30. 1663. Rickart contra Here the sub-tennent had required thâ— Tennent to give his Tack for his defense Tacit Relocation after an expyred Tack of Teinds was sound interrupted by inhibition though not used by the setter of the Tack but by a third party on a distinct Right unless the alleadger of the tacit relocation could condescend upon a right in the setter of the Tack that might exclude this pursuit and he condescending that the â—etter of the Tack was presented as parson and had seven years peaceable possession thereby the same was â—ound sufficient to maintain his Tennent by tacit relocation until the Parson took assignation from the pursuer and so acknowledged his right which was found to take away the Tacit Relocation of the Deâ—ender from that time though it could not have taken away an unexpyred Tack Iuly 18. 1671. Earl of Hume contra Laird of Riselaw A TACK set by a debitor to his creditor for seven years for such a Tack-duty exprest with a clause to retain his annualrent in the first end and not to be removed til the principal were payed was found valide against an appryzer subsequent as to the endurance of the Tack having a definite Ish and not during the non-redemption and that there was a superplus of the Tack-duty above the annualrent for which superplus alone the Heretor might have set it but was not sustained as to the clause not to remove which was found personal not effectual against a singular Successor Iune 15. 1664. Thomson contra Reid A Tack was found to be no such real Right as the Back-bond of the receiver thereof did not oblige his singular Successor but that the Back-bond being of the same date was relevant to qualifie the Tack against the singular successor which Back-bond bear a Reversion which was not found needful to be Registrate neither was it intimate before to that singular successor Ianuary 8. 1â—68 Forbes contra A Tack of Land was found to give the Tennent no right to any Minerals under the ground as to Clay for making of Pipes and that the Tennent could give no Licence to any to dig the same but de natura rei it was reserved to the Heretor with a power to open the same satisfying the Tennents damnage February 15. 1668. Colquhoun contra Watson A Tack of Teinds set without consent of the Patron for more than three years was not found null simply by the Act 1621 but was valide as to the three years Iuly 1â— 1668. Iohnstoun contra Parochioners of Hâ—â—â—oun A Tack for four years and ay and whiâ—e sum were payed was found valide against the Liferenters Assigney December 18. 1668. Swintoun contra Brown Here the Assigney was not found as a singular successor as in Rights passing by Infeftment A Tack of Teinds set for more than three years without consent of the Patron was found valide by his tacite consent and homologation by taking Right to the Tack and obtaining prorogation thereon Ianuary 19. 1669. Earl of Athâ—l contra Robertson of Strowan A Tack of Teinds for several nineteen years and several lifes was found not to be past from by the Tacks-mans taking Assignation to another posterior Tack for a greater duty or for greater endurance seing he did not take the second Tack originally himself but purchased it from a powerful party to prevent his trouble and did not brook by it nor pay a greater duty than was in his first Tack Iune 24. 1669. Kennâ—dy and More contra Iaffray A Tack of Teinds set by an Vniversity for a definite space with an obligement to renew the same in all time thereafter was found not effectual after the said definite time nor obligatory upon the Vniversity unless it had proceeded upon a sufficient cause onerous and albeit the same duty was received by the Vniversity after the 〈◊〉 time It was found no homologation of the obligement but as brooking per racitam relocationem Iuly 13. 1669. Old Colledge of Aberdenâ— contra the Town of Aberdene A Tack of a House by word for a year being fourteen dayes before the Term was found not to admit locum penitentia by giving over within fourty eight houres after the taking but that the Setter setting again to another imported acceptance of the overgiving though that other possessed not and the possessor not removing precisely at the Term did not liberate the Taker in respect of the custome of Edinbâ—rgh not to remove till six weeks after the Term Ianuary 7. 1670. Ker contra Dawnie A Tack gâ—anted by a Tutor in securâ—ty of a sum borrowed for the Pupils use having no special Ish but to endure while the Money 〈◊〉 payed was susâ—ained February 21 1671. Armor contra Lands A Tack â—o the Tackâ— man during his leâ—e and the life of his first Heir was not understood to be his Heir entered but that his eldest son having survived him who might have been Heir he needed no service for the benefite of a Tack but that part thereof was fulfilled though he never possessed conform Iune 17. 1671. Lord Lovat contra Lord Mâ—donald Tack Vidâ— Clause December 10. 1661. Kâ—nrosi contra Laird Hunthil November 23. 1664. Scot contra Laird Barefoot c. TAXATION 1633. was â—ound sufficiently discharged by the discharge of one who was held and repute Collector without shewing any commission or being a person in Office December 14. 1665. Duke of Hamiltoun contra Laird of Clackmannan Taxation by a stent Roll was found only
a simple Renunciation competent to the Superiour to exclude the Terce and that she could brook no part â—f the Land by vertue of her Terce and that the Superiours founding upon the clause accepting Lands in satisfaction of the Terce did not import his approbation of her Right to the Lands accepted seing she wanted the Superiours consent as being an essentiâ—l requisite to her Infeftment of Ward Lands and so could admit of no Homologation more than if she had only the contract without any Infeftment This was stopped to be farder heard whether the Relict might brook at least a third of the Ward Lands accepted as a Terâ—e of these Lands though she could not brook the whole Ward Lands accepted being within a Terce of all her Husbands Ward Lands especially since the Clause bear that she accepted the Liâ—erent Lands in satisfaction of all farder Conjunct fees but should be repuâ—â—ed a Terce as being in lieu of all farder Terce whether in that case she renunced only the Terce of any other Lands buâ— not the Terce of the Lands accepted Iune 23. 1671. Lady Baâ—â—â—agan contra Lord Drumlanrig THE TERM OF PAYMENT of Bairnâ— pâ—rtions 〈◊〉 at such aâ—â— age the same was found as dies 〈◊〉 qui pro conditione habetur and they not attaining that â—ge theiâ— nearest of Kin had no right Ianuary 17. 1665. Edgar contra Edgar A TESAMENT Nuncupative by a Scotsman made in England or abroad where he resided was found null as to the nomination of Succession notwithstanding the Law of the place which rules only as to the Solemnities of Writs but not to Substantials or appoynting of Successors Ianuary 19 1665. Schaw contra Lennox A Testament containing a Legacy of a Wodset was sound void though it was done 〈◊〉 prâ—â—inctu belâ—i February 21. 1663. Wardlaw contra Frazer of Kilmundy A Testament confirmed beaâ—ing persons to be nominate Tutors and that they compeared judicially accepted made Faith and found Caution was found not sufficient to defend against a Reduction without production of the Tutors Subscription as the warrand to make the Tutor lyable for the Pupils means conform to the Inventary unless there were other adminicles to astruct the same albeit the confirmation was thirty seven years since seing the acceptance was no ordinary act of process nor no process was moved upon the confirmation till of late Iaâ—uary last 1665. Kirktoun contra Laird of Hunthil A Testament confirmed was found to be execute at the Executors instance by a Decreet though he had not obtained payment anâ— though he was Executor dative and a meeâ— stranger so that after the Executors death the sums in the Decreet could not be confirmed by an Executoâ— ad non executa of the first Defunct November 17 1666. Dounâ—e contra Young A Testament was reduced because the Testator being alleadged not to be compos mentâ—s the Nottar Writeâ— and Wiâ—nesses insert and other extraâ—eous Witnesses deponed that about the time of the Testament and thereafter the Testator was not in his right mind and to every question that was proposed answered alwayes yea yea although they were not present at the making of the Testament and were contrary to the Witnesses insert this was stoped to be further heard Iune 9 1668. Meallâ—xander contra Dalrymple A Testament beginning in the ordinary stile of a Testament and then disponing Land thereafter containing a blank wherein by another ink and hand the Defuncts eldest daughter was named universal Legatrix and Executrix but after all the moveables were disponâ—d to the eldest Daughter which Testament being quarrelled by reduction was found null as to the disposition of the Lands and as to the nomination of the Executor and Legatar the same was not sustained though filled up before the Defuncts death albeit it was offered to be proven by the Nottar and Wâ—tnesses insert that the Defunct gave warrand so to fill it up but it was sustained as to the disposition of the moveables as a Legacy in so far as the Defunct could Legat which may subsist though the nomination of the Executor be wanting or void Iuly 13. 1670. Daughters of Soâ—ityay contra the eldest daughter Testament Vide clause December 15 1668. Windrham contra Elâ—is THIRLAGE was found constitute by long custom of payment of Intown Multure in mollendino regâ—o but was not extended to the Teâ—nds of that Barony though possest promiscuâ— far above fouâ—ty yeaâ—s without more then custom and was not excluded by the Feuers of the Barony their Feus granted by the King cum mollendiniâ— mulâ—uriâ— in the teneâ—das only which was thought but past in the Exchequer of course without observation Ianuary 8. 1662. Steuart contra the Feuaâ—s of Aberledno The like without allowing any part of the cropt multure free for expences of labour and Hinds-corn but only the Seed Horse-corn and Teind Ianuary 14. 1662. Nicolson contra Fâ—uars of Tillicutrie Thirlage was sound constitute by an old Decreet against the Tennents possessors without a calling their Master and long possession conform thereupon albeit the Heretâ—r was Infeâ—t cum mollendiâ—â—â—â— and that Witnesses being examined hinc inde conceâ—ning the possession and interruption by going sometimes to other Miâ—ns were proven yet not so frequently as might not be Olandestine Iune 24 1665. Collonel Montgomerie contra Wâ—llaâ—e and Râ—ie Thirlage was inferred where the Feuer of the Miln was Infeft in the Miln with the mulâ—ures of the Lands in question per expressum and was in possession of insuckâ—n Multure thereof fourty years albeit the Defendeâ— was infeft before without the burden of astriction and did sometimes go to other mâ—â—ns which being frequent in all astrictions was found not to be a competent interruption Iune â—9 1665. Heretoâ— of the Miln of Kâ—thick contra Feuars Thirlage was infeâ—red by infeftment of a miln with the multures c. generally with a precept from a Bishop then Heretor of the Lands in question ordaining his Tennents to pay their multuâ—es to that miln which with long possession was found sufficient albeit it had no consent of a Chapter December 7 166â— Vâ—â—tch contra Duncan Thirlage being constitute by an infeftment from him who 〈◊〉 〈◊〉 of Land and Miln was found no to be prejudgeed upon the alleadged insuâ—â—â—ciency of the Miln unless the insufficiency were alleadged to be through the fault of the Heretoâ— of the Miln February 9 1666. Heretors of 〈◊〉 contra Feâ—ars Thirlage was not Inferreâ— by an infefâ—ment of â—ands with such a miln and the multures used and woâ—t which was not extended to Lâ—nds of another Barony â—olden of another Superiour though they then belonged to the Disponeâ— and were in use to come to that miln December 11 1666. Earl of Cassils contra Tennents of Dalmortoun Thirlage though constitute by a Vassal hath no eâ—â—ect against the Superiour during the Vassals Ward unless the superiour consented neither is his consent inferred by his receiving an Assignay to the Appryzing with reservation of the multures in the
interest to call for production of the Defender her Sister â—â—d Fathers Retoures only for instructing of what was Ward and not their other Evidents December 20. 1669. Earl of Rothes contra Tutors of Buccleâ—gh Ward was found to take no place where the Defunct was denuded by an Appryzing and the Appryzer infeit albeit the appryzing was on a Bond granted to his Mother to the beâ—ove of her Son which was not found to be a fraudulent precipitation to exclude Ward it being granted in the Defuncts leige pouftie but so soon as the Appryzing was satisfied either in the Defuncts time or after his death the Ward of the Defunct's Heir took effect Iuly 20. 1671. Lindsay of Moâ—nt contra Maxwel of Kirkonnel A Ward was not found to give Right to the Donatar to cause an Appryzer Restrict to as much of the Rent as will satisfie his annâ—alrent that the Donator might have the superplus by the Clause in the Act of Parliament 1661. betwixt Debitor and Creditor which was only found proper and personal to the Creditor and his Heir Inter eosdem Ward and Marriage of a party killed in the late War was found not to be taken off by the Act of Parliament 1640. Declaring the Ward and Marriages of these that should die in that Service not to fall which Service was found to terminate by the next Pacification Annâ— 1641. here parties were agreed so that it was not acuratly debated or determined whether the salvo in the Act rescâ—nding these Parliaments during the Troubles except as to private Rights acquired thereby would reach to the exemption of Ward and Marriage by the Act 1640. being held an exemption during all the Troubles should be so interprete now which was not proposed Iuly 28. 1671. Hadden contra Laird of Glenegiâ—s WAKNING was not â—ound necessary where upon hearing parties Decreâ—ts were pronunced though it was stoâ—ed upon a Bill and lay several years over which stop imports not a recalling of the Dâ—creet but a stoping the Extracting of it till the parties might be heard upon the grounds of the Bill Iuly 1. 1671. Brodit of Lâ—thâ—m and the Laâ— of Riâ—cartoun contra the Lord Kenmuire WARNING was sustained at an old Kirk albeit Divine Worship was at a new Kirk not Erected by Parliament or though Erected if Hornings and Inhibitions used to be at the old Kitk Ianuary 24 1667. Earl of Argâ—le contra Campbel Warning not bearing that it was read at the Kirk door in ordinary time of Divine Service was admitted to be so mended at the Bar Ianuary 25. 1667. Inter eosdem Warning at the Kirk and House was sustained on fourly days though the party warned was out of â—he Countrey the Act of Parliament anent Warning requiring no further February 20. 1666. Mcbrair contra WARRANDICE was â—ound implyed of a Legacy in realiena scienter legata Iune 18. 1664. Murray contra Executors of Rutherfoord Absolute Warrandice was ordained to be contained in assignations of Bonds for an equivalent Cause as the price of goods and that it should bear expresly not only that the debts were due but that the debitor was solvendo Iune 24. 1664. Moffat contra Black Warrandice being absolâ—te in an Assignation by a Creditor to a Cautioner that he might get his relief bearing against all deadly as Law will was found not to extend to the Debitors being solvendo Iune 26. 1664. Hajcontra Nicolsâ—n Absolute Warrandice was found implyed in a Contract of Marriage wherein a Mother as Executor gave such a sum in full satisfaction of a Daughters interest and that only to warrand against the Defuncts seperveening Debt as to the superplus above the sum accepted by the Daughter but simply for all the portion unless the Mother would compt for all her Daughters share November 16. 1664. Fleming contra Fleming and her Spouse Warrandice was found to give recourse though thâ—re could be no present distress seing there was a clear ground of further distress by the warranders own deed granting double dispositions Iuly 1â— 1666. Burâ—et contra Iohnstoâ—â— Warrandice absolute in a disposition of Lands was found to extend to warrand Lands designed for a Horse and Cows Grass by a subsequent Law albeit the Law extended in self as if it had been of a former date with another abrogaâ— Law seing these Laws did differ from the former and did not revive it Iuly 12. 1667. Watson contra Law Warrandice being special by Infeâ—tment though base and ex intervallo and after the principal Inâ—eftment is effectual for recourse without declarator and being cled with possession of the principal Lands and can only be excluded by a possessory judgement upon 7 years after the eviction but by no possession how long soever before the eviction February 20 1668. Forbes contra Innes Warrandice in a Disposition bearing the seller holds Ward that therefore he should warrand the buyers who were to â—old Few of him and to relieve them of any Ward that should thereafter fall which was â—ound to be effectual against the Sellers Heir thoâ—gh denuded of the Superiority and not to burden the present Superiour Iuly 18. 1668. Colquhoun contra Stâ—uart of Barsâ—ub Warrandice in whatsoever Terms conceived was found to extend no furtâ—er than tâ—e sums paid out and the expences of the party Ianuary 26. 1669. Boyl of Kelburn contra Wilkie A WIF'S Contract of marriage was found a debt 〈◊〉 to other personal Crediâ—ors of the Defunct Februâ—ry 8. 1662. Crawfoord contra Earl of Murray A Wiâ—e and her freinds at whose instance execution of her Contract was provided was admitted to pursue a Reduction of a deed done by the Husband in prejudice thereof duâ—ing â—is life February 12. 166â— Leckâ—â— contra 〈◊〉 A Wife was found conveenable without calling the Husband he being 20. years out of the Countrey and she repute widow Iune 19. 1663. Hay contra Corstorphin A wifes oath was found to prove against the Husband where the matter was litigious by a process against the Wife before her marriage Iuly 19. 1663 Edgar contra Murray A Wifes infeftment was found valide till her Tocher were repaid albeit the Marriage was disolved wâ—thin year and day Iuâ—y 20. 1664. Petrie contra Paul A wifes furnishings even for her mournings for her husbands funerals being of that quality that should have mourning was found not to be the wifes debt but the husbands executors November 2. 1664. Murray contra Neâ—lson A wifes infeftment Stantâ— martrimonio being 〈◊〉 and beside her Contract was found not to be validat by her husband possession that his Creditors might not quarrel it by exception it being anterior to the infeftment December 7. 1664. Lady Craigie and Greenhead contra Lord Lour Vide Clause December 20. 1664. Young contra Buchannan A wife having her husbands bond in her hand and impignoraâ—ing in 〈◊〉 100. pound it was sustained against the husband upon presumption of her having warrand by having the bond February 4. 1665. Paterson contra Pringle A wâ—â—es
lay so much marked upon the Precept received in name of Composition Earl of Lauderdail contra Tennents of Swintoun Ianuary 7. 1662. EArl of Lauderdail as having Right to the Forefaulture of the Barony of Swintoun pursues the Tennents for Maills and Duties George Livingstou one of them alleadges that he must be assoilzied from one Years Dutie because he offers him to prove That it is the Custom of the Barony of Swintoun at least of a distinct Quarter thereof That the Tennents do always at their entry pay half a years Rent and are free of Rent at the Term they remove and so do all a long pay a Year at the least half a Year before the hand and subsumes that he has payed accordingly to Swintoun himself for a Terms Maill due for the Crop which is after the pursuers Right The Pursuer alleadged non Relâ—â—at against him a singular Successor or against the KING his Author because that Partie that hath Right to the Land hath Right to the Fruits and so to the Rents which is payable for the fruits which were extent upon the Land or growand after that Parties Rightâ— and no payment before the hand can liberat the Possessor from the Pursuite of a Singular Successor Therefore it hath been frequently found that payment before the hand is not Relevant against an Appryzer yea even against an Arrester so that the KING and his Donatar since their Right was established and known cannot be excluded by payment before the hand to a partie who had no Right to the Land or to the Fruits that Year otherwayes both the KING and Creditors might be defrauded by Fore-maills or by Tacks appointing the Fore-mail to be payed the first Term whatsoever length the Tack be Secondly Any such alleadgances were only probable scripto vel juramenio The Defender answered that the Case here is not like the Fore-maills instanced because every Year is payed within it self and so the first Year the half at the beginning thereof and the half at the middle thereof and subsequent Years conform which must be sufficient to the Tennent otherways Tennents paying at Whitsonday and Martinmess should not be liberat because the whole Year is not run out or a Tennent paying his Ferms at Candlesmass should not be secure against Singular Possessors for the profit of Grasse thereof till Whitsonday The Lords found the Defense Relevant and the Custome of the Barony to be proven by Witnesses and likewise the payment of the Dutie in so far as in Victual and also for the money not exceeding an hundred pounds Termlie Iames Stewart contra Feuars of Aberbadenoch Ianuary 8. 1662. JAmes Stewart as being Heritably infeft in the Milne of Aberbadenoch pursues the Feuars of the Barony for abstract Multures of their Corns growing within the Barony or which tholed Fire and Water within the same The Defenders alleadged absolvitor because they are Infeft in their Lands feu of the KING long before the Pursuers Infeftment which Infeftment bears cum Molendiuis Multuris in the tenendas The Pursuer Replyed that albeit that Clause were sufficient Liberation amongst Subjects yet this is a Milne of the KINGS Propertie whereunto Thirlage is sufficently Constitute by long Possession of coming to the Milne and paying in Towns Multures and Services as is Craig's opinion and hath been so found by the Lords February 5. one thousand six hundred thirty five Dog contra Mushet The Defender answered That albeit Thirlage to the KINGS Milnes may be Constitute without Writ yet cannot take away an expresse Exemption granted by the KING The Lords Repelled the Defense in respect of the Reply because they thoughâ— that this Clause being but in the tenendas past of Course and when Sigâ—aâ—â—â—â— are past the KINGS hand or Exchequar's they bear only tenâ—ndas c. without expressing the Particular Clause which is afterwards extended at the Seals The Defenders alleadged further absolvitor from the Multure of the Teind because that was not Thirled nor had the KING any Right thereto when he granted the Infeftment of the Milne The Pursuer Replyed the Defense ought to be Repelled in respect of the long Possession in Molâ—ndo Regio because the Defenders and their Tennents past fourty years payed Multures of all their Corns promiscuously without exception of Teind likeas there are several Decreets produced for abstract Multures of all the Corns without exception The Defender answered That the Reply non Relevat for albeit long Possession may make a Thirlage of the KINGS own Baronie yet that cannot be extended to other mens Rights of their Lands and Teinds which cannot be Thirled without their own Consent or Decreets against themselves called nor do the Decreets bear Teind per expressum The Lords found the Defeuse Relevant notwithstanding of the Reply except such Teinds that thole Fire and Water within the Barony and likewise sâ—staiâ—â—ed the Defense for the Corns eâ—ten by the Defenders upon the Ground in the Labouring c. Earl of Murray contra Laird of Grant January 9. 1662. THE Earl of Murray Pursues the Laird of Grant to Re-dispone him certain Lands which the Earls Father had Disponed to the Defender and had taken his Back-bond that if the Earls Friends should find it prejudicial to the Earl then upon payment of 2800. merks precisely at Whitsonday he should Re-dispone ita est the Earls Friends by a Testificat produced found the Bargain to his loss therefore he offered the sum to the Defender in his own House which he refused and now offers to Re-produce it cum omni causa The Defender alleadged Absolvitor First Because the Back-bond is pactum de retro vendendo And so a Reversion which is strictissimi juris and not to be extended beyond the express Terms thereof which are that if Iames Earl of Murray should re-pay the Sum at Whitsonday 1653. precisely the Defender should Re-dispone But there is no mention of the Earlsâ— Heirs and so cannot extend to this Earl though he were Heir as he was not served Heir the time of the offer The Pursuer answered that when Reversions are meaned to be Personal and not to be extended to Heirs they do bear That if the Reverser in his own time or at any time during his life c. or some such Expression but there is nothing such here and the Pursuer was Retoured Heir to his Father who died shortly before the Term of Redemption and having used all Diligence he cannot be excluded by such an accident which he could not help The Lords Repelled both the Defenses albeit there was only an offer without Consignation seeing the Back-bond did not bear Premonition or Consignation but only payment which the Pursuer now offered Baird contra Baird Eodem die BAird in Saint Andrews having taken the Gift of his Brothers Escheat upon his Adultery Pursues Declarator thereupon The Defender alleadged no Processes till the Crime were Cognosced in the Criminal Court or at least he were declared Fugitive and
the end of which Disposition there is a Clause bearing that because the Young's were kindly Tennents in the Lands of Greenlaw therefore they Dispone their Right thereof and kindlynesse thereto to Grubbet More having acquired the Rights of the Lands of Morbatle from Sir Iohn Ker and the Earl of Louthian having Apprized Sir Iohn's Right of the Barony of Lintoun in Anno 1636. gives a particular Right of Greenlaw alone which is now also in the Person of More whereupon arises a Competition of Right between Grubbet and More Grubbet alleadged that he has Right to Greenlaw as a Part and Pertinent of Otterburn which he and the Young's his Authors have Possest far beyond 40. years as Part and Pertinent of Otterburn and offers to prove that there is standing Marches between Morbatle and Otterburn within which Marches Greenlaw lyes on Otterburn side and that his Infeftment produced granted by Young to Young bears expresly Greenlaw It was alleadged for More First that Grubbet cannot pretend Greenlaw to be Part and Pertinent of Otterburn because by his own Infeftments produced granted by the Young's and accepted by him Greenlaw is not exprest as Part and Pertinent of Otterburn albeit Raschbog tho lesse considerable then it be exprest and on the contrair it is declared that the Young's were kindly Tennents of Greenlaw and Disponed their kindness thereof aud offers to prove that the Young's were in constant custom of Service to Sir Iohn Ker in Armes and otherways whenever they were required and that most of the Lands on the border were Set only for Service which Service could not be attribute to Otterburn because it was holden blench of Sir Iohn and if need be 's offered to prove by Witnesses that when the said Young's came not to the said Service they were poinded therefore 2dly More offered to prove that Greenlaw is a distinct Tenement both from Otterburn and Morbatle and hath past as a distinct Tenement since the year 1636. and hath a known March between it and Otterburn viz. a Know. 3dly For Grubbets pretence of bruiking Greenlaw as Part and Pertinent of Otterburn for 40. years so that he might claim it by Prescription the alleadgeance ought to be Repelled first because Prescription cannot proceed without an Infeftmen and it cannot be ascribed to the Young's Infeftment wherein they acknowledge that they were kindly Tennents of Greenlaw after which no course of time can ever prescribe a Right to Greenlaw as part and Pertinent of Otterburn by that Charter and therefore any Possession that is thereof is without Infeftment 2dly There is not fourty years Possession abating Mores Minority 3dly There are interruptions and therefore if Greenlaw be either a distinct Tenement or part of Morbatle it belongs to More It was answered for Grubbet that he and his Authors Possessing Greenlaw these 40 years past as part of Otterburn gives him sufficient Right thereunto notwithstanding of any acknowledgement in the Charter or without the Charter before that time for Prescription may change Part and Pertinents so that which was once not acknowledged to be a part by Possession 40 years thereafter may become a part and that acknowledgement never being made use of Prescribes and the Charter in which it is is a sufficient Title both for what was parts the time of the Charter and what becomes thereafter parts by Prescription 2dly The acknowledgement of a Party having Right is of no effect when by demonstration of the Right it self the contrair appears as here therebeing an anterior Right of Property of the Young's produced before that acknowledgement 3dly The ackowledgement is not that they were only kindly Tennents otherwise it is very well consistent with the Property that they being first kindly Tennents and that kindliness being thought more favourable to maintain Possession in these places then any Heretable Right they might very well Dispone Otterburn whereof Greenlaw is a part and might also Dispone their kindness of Greenlaw they had before the Right of Property neither doth it infer because Raschbog is exprest as Pertinent of Otterburn which hath been upon account that Raschbog was then unclear that therefore Greenlaw is no Part thereof or else it could have no more parts but Raschhog there being no more exprest and as for the alleadged Services done by the Young's to Sir Iohn Ker they cannot infer that the Young's were then Tennents of Greenlaw because such Services being only general and no particular Services accustomed by Tennents they might have been performed to Sir Iohn as Superior or as out of kindness to a great Man in the Countrey and it s offered to be proven if need be 's that hundreds granted such Services who were not Tennents so that unless there were a Tack Inrolments of Court or Executions of Poinding produced to instruct Services as a Tack-duty on Greenlaw it is Irrelevant The Lords by a former Interlocutor had found that by the acknowlegement in Young's Charter or any thing therein was not sufficient to exclude Greenlaw from being Part and Pertinent of Otterburn but they found that is More would alleadge a Tack or Inrolment of Court to the Young's of Services for Greenlaw it were sufficient or otherwise if he would alleadge constant Service of the Young's by Riding c. with Sir Iohn and there being Poinded by him when they were absent they found the same with the acknowledgement in Grubbets Right to exclude Grubbet from Greenlaw and if these were not alleadged they ordained Witnesses to be Examined upon the ground hinc inde before answer upon these points whether Greenlaw was known to be a distinct Tennement both from Otterburn and Marbotle or whether it was known to be Part and Pertinent of either and what were the Marches and Meithes thereof and what Services were done by the Young's to Sir Iohn Ker and if such Services were done by others not being moveable Tennents Barclay contra Barclay Iuly 6. 1669. BArclay of Towy having but one Daughter and his Estate Tailzied to Heirs-male his nearest Heir-male being the old Tutor of Towy above 80. years of Age and having also but one Daughter and neither Father nor Daughter being Persons of much discretion Captain Barclay his next Heir-male having also but Daughters he Dispones his Estate in favours of his own Daughter and it being rumored that Captain Barclay pretended a Bond of an hundreth and three thousand Pounds granted by Towy to him that thereby he might prefer him to the Tutor and that the Tutor as Heir-male had also granted several Dispositions to Captain Barclay of that Estate Towies Daughter being an Infant her friends did also procure a Disposition from the Tutor to her and she pursues a Reduction and Improbation against Captain Barclay of the foresaid Bond and Dispositions made to him he Compears and produces a late Disposition made by the Tutor and alleadges that he had the Bond foresaid and two Dispositions from the Tutor anterior to this produced but that a Person to
Lesly having Fraughted a Ship belonging to Bailly Guthry in Dundee to carry a Loadning of Wheat and Oats from Athol to Leith the Skipper did put in by the way at Dundee and there the Ship received a Crush by another Ship whereby the Salt-water entered amongst the Victual and thereupon the Owners and Skipper caused Disloaden the Victual and put it up in Lofts and Bailly Guthry the next day after the Crush gave notice to Robert Lesly in Dundee Lauchlens Correspondent and who made the Bargain for him to make it known to Lauchlen what had befallen the Ship and Loadning who within two dayes after came to Dundee and was required to Receive the Victual which he refused and by the Probation adduced in this Cause it was found that it was the Skippers Fault that he had put in to Dundee and so he and the Owners were found lyable for the damnage and interest of the Merchants and that the Merchants should be only obliged to take back that Part of the Victual that was unspoiled and the Owners should be lyable for the Price of the whole as it would have given at Leith if the Skipper had keeped his Course deducing the Price of the sufficient Victual as it now gives and a Commission being granted to certain Persons in Dundee to visit the Victual and to see what condition it was in they reported that 36. Bolls of it was sufficient Mercatable Wheat and that the Oats was damnisied in 20 Shilling the Boll and as to the rest two reported that it would yet be Brisket for Ships or Houshold Servants and two reported that it was spoiled but spake nothing further The question arose to the Lords upon the Commission at the Advising thereof whether the Owners and Skipper should be lyable for the damnage that was done before the Advertisement given to the Merchant or for the damnage that ensued thereafter because the Victual being laid together without separating the wet from the dry had het and spoiled thereafter and if it had been separat at first the damnage would have been very litle and so the question was whether the Owners and Skipper were obliged to have separat the wet from the dry and so to have offered it to the Merchant or if the offer in general to the Merchant to receive the Victual was sufficient though he did not desire them to separat the wet from the dry or that they did not offer satisfaction or security for the damnage of what was wet The Lords found that seing the damnage had fallen after and through the occasion of the Skippers delay he and the Owners were obliged to separat the wet from the dry and to have used diligence to prevent future damnage wherein having failzied they found them lyable for the whole damnage both before and after the offer the next question arose was whether the Skipper and Owners were obliged to take the spoiled Victual and pay the Price thereof as if it had been sufficient or if the Merchant was obliged to take it and the Owners to make up the damnage The Lords found that seing the Victual remained yet in specie and was not wholly Corrupted but by the report appeared to be useful for Ship Brisket and seing the property thereof still remained in the Merchant and the Owners were only lyable for damnage They ordained the Merchants to Receive the wet Victual and gave Commission to the same Persons to report what it was worse then the Price it would have given at Leith if the Voyage had held The Countesse of Cassills contra The Earl of Cassills February 22. 1670. BY Contract of Marriage betwixt the Deceast Earl of Cassills and his Lady he is obliged to Infeft her in certain Lands with absolute Warrandice and obliges him that the Lands did pay then and several years before 6000. Merks of yearly Rent beside Kanes and Customs and over and above Teinds and Feu-duties and if it shall please the Lady within six Moneths after the Earls Death rather to choise six thousand Merks of free Rent then to retain the Possession of the Land and to give a Tack to his Heirs and Successors of the Liferent-lands Then and in that case he obliges his Heirs and Successors to pay her 6000. Merks yearly Therefore the Countesse has made it in her option and offers to take and Pursues the Earl her Son to pay yearly the said Sum of six thousand Merks of free Rent who alleadged that albeit that Clause be mentioned to be free Rent yet he must have allowance of Cess Maintainance and other publick Burdens because by free Rent can only be understood free of Teinds and Feu-duties in respect that this being a Tack-duty for the Liferent-lands the Lady thereby can be no further free then if she enjoyed the whole Lands which the Earl is only obliged to make worth 6000. Merks of yearly Rent over and above Teind and Feu-duty but neither does it bear generally of free Rent much less of publick Burdens and therefore the subsequent Clause for the Tack-duty albeit it bear free Rent yet it can only be understood to be free of Teind and Feu-duty and not to be free of publick Burden which is further cleared by the Act of Parliament 1646. Ordaining all Liferenters to hear proportional Burden for any Annualrent or Tack-duty belonging to them in Liferent unlesse they were expresly freed of Maintainance It was answered for the Countess that she oppones the Clause of her Contract bearing free Rent without â—â—nitation and Contracts of Marriage are to be extended in favours of Women and as to the Act 1646. the same is Repealed and not Revived again The Lords found that by the Contract of Marriage the Countesse was noâ— free of Cesse and Maintainance which were the only Points at Inâ—â—â—â—cutor But if any Debate arose concerning the ordinarâ— Taxation or the Outrikes or allowance to Militia Horse the Lords would hear the Parties thereanent and accordingly the next day found the Clause did free my Lady of the ordinar Taxation Militia and so much of the Cesse as the Tennents of the Lands payed to my Lord. Murray of Achtertire contra Sir Iohn Drummond Eodem die THe Deceast Earl of Tulliâ—airn having Wodset the Lands of Logy-Almond to William Murray of â—chtertire by a Contract of Wodset in February 1656. by which the Earl Assigns Achtertire to the Mails and Duties of the Lands due for the Cropt 1656. at Whitsunday or Martimess or any other Term and obliges him to Deliver to him the Keyes of the House and to enter him in the Possession at Whitsunday 1656. The Earl having Sold the Lands to Sir Iohn Drummond whose entry was to be at Whitsunday 1668. and having used an order of Redemption in the Earls Name because the Reversion did not extend to the Earls Assignies and having obtained Declarator Decerning Achtertire to denude himself of the Lands who in obedience of the Decreet grants a Renunciation Reserving to himself
the Contract may be yet Examined to clear the meaning of the Clause 2dly Albeit the Clause could not exclude her from a third of Money which is expresse therein yet not from a third of Moveable Goods and Geir which is not exprest and albeit the Clause bears and others it can only be understood of Rights due by a stated Security and the intent of the Clause has only been to substitute the Bairns of this Marriage Heirs of the Conquest and to exclude the Bairns of any other Marriage but did neither exclude the Father but that he might dispone on his Moveables albeit the Clause expresseth him but Liferenter thereof neither does it exclude the Mother from the third thereof And there was adduced a Decision in the Case of the Lady Oxenfoord wherein albeit by her Contract of Marriage she accepted certain Lands in full satisfaction of her Terce and third of all Lands Annualrents and others yet that was not found to exclude her from a third of Moveables but only from a Terce or third of Heretable Rights It was answered for the Children that their Mother having consented by the Contract of Marriage that all Conquest during the Marriage should be provided to their Father in Liferent and to them in Fee she had excluded her self as clearly and effectually as if she had Renunced her third thereof or accepted of her Jointer in full satisfaction neither is there a necessity that these words must always be used nor is this alleadged as a consequential Renunciation but as an expresse Obligation or Destination of the Husband consented to by the Wife which must have its native effect and so the Children must be Feears of the whole Conquest and therefore the Wife cannot be Feear of a third of it and albeit moveable Geir be not exprest the generality others must necessarily comprehend them being of the same nature with Sums which are exprest and may be Moveable and of less importance then they and the case wholly differs from that of the Lady Oxenfoord wherein nothing but Heretable Rights are exprest and it is an unaccustomed Clause amongst Persons of that quality to exclude Ladies from a third of Moveables but here Sums are exprest and it is most ordinar for Merchants to exclude their Wives from their Merchant Goods which is the greatest part of their Estate as to the meaning of the Parties clear Clauses cannot be enervat upon that ground and as for any thing exprest by the Husband It was on Death-bed in a great Fever whereof he Died and no Testament followed The Lords found that the foresaid Clause in the Contract did exclude the Relict from a Terce of Moveable Sums or Moveable Goods during the Marriage which could be understood to be meaned to be put upon Security at any time but that it did not exclude her from a third of the Houshold Plenishing Charles Casse contra Sir Robert Cunningham Ianuary 26. 1671. CHarles Casse having Sold to Sir Robert Cunningham his Right to the Lands of Achinhervy in his Minority pursues a Reduction of the same Disposition upon Lesion and condescends upon his Lesion thus that being Infeft for security of fourty thousand Merks and in an Annualrent effeirrand thereto whereof there were many bygone years Annualrent resting and yet he got only fourty thousand Merks for all The Defender alleadged Absolvitor because the Pursuer was satisfied of all his bygone Annualrents in so far as he having Apprized for five years Annualrents preceeding the Apprizing which was in Anno 1655. he had entered in Possession by vertue of the said Apprizing of the whole Lands of Achinhervie and so is Comptable therefore according to the Rental untill he cease to Possesse the same which will fully satisfie all his bygones so that he will have no Lesion 2dly He had not only in his Person the said Apprizing but the Infeftment of Annualrent upon which he being preferred in a double Poinding and excluding other Parties having also real Rights he is thereby obliged to do Diligence and be Comptable not only for what he intrometted with but for what he ought to have intrometted with The Pursuer answered that he was content to Compt for what he had Intrometted with but upon neither ground was he obliged to Compt for any further especially as to his Apprizing albeit Law and Custom had oblidged him to Compt for the whole Rental till the Apprizing were satisfied yet he could not be Comptable but for his Intromission after he was satisfiedâ— for then he had no title in his Person and it is clear that any Intrometter without a title is only lyable for his Intromission and all Parties having Interest might have hindred him to have Intrometted after he was satisfied and albeit a Tennent or Factor after the expiring of the Tack or Factory may be Comptable for a full Rental yet that is because they have a title per tacitam relocationem or tacitam commissionem but after the extinction of the Apprizing then no title remains and neither is he lyable as an Annualrenter even though he did exclude others to do any Diligence because all the effect of an Annualrent can only be to distresse the Ground or Poind the Tennents for as much of their Rent as is equivalent to the current Annualrents after which any other Party having Right may liâ—t the superplus and in this case the Annualrenter hath not been preferred as to any bygone Rents but only in timecoming and for his current Annualrents and the bygones are appointed to be brought in Accompt which was never determined The Defender answered that it were against all Reason that an Apprizer after he is satisfied should be in better condition then before he is satisfied and so as long as he meddles he must Compt by the Rental and it is his proper part who knows when he is satisfied to relinquish the Possession which other Parties cannot know till by a long Process of Compt and Reckoning it be determined and it were most absurd that in the mean time he should continue in Possession and though the Rents did in a great part perish he should not be Comptable therefore but only for what he actually lifted The Lords found the Pursuer as Apprizer Comptable according to the Rental not only for Intromission but Omission both till the Apprizing be satisfied and thereafter for all years of which he lifted any part but found not the Annualrenter lyable for Diligence albeit he did exclude others but the Case came not to be Determined if the Annualrenter had by a Personal Action insisted for more years Annualrent past to be preferred to the whole Rents till these bygones were satisfied that not being the case here in question In this Cause it had been formerly alleadged that the Pursuer after his Majority had Received a part of the price of the Lands in so far as having in his Minority granted a Commission to Mr. Iohn Smith one of his Curators
to uplift all Sums due to him and he having uplifted a part of the price of the Land from the Defender and bonds for the rest the Pursuer after his Majority had by his Discharge produced Received from his Curator and Factor the said Money and Bonds and Discharged him thereof and acknowledged that he and the remainent Curators had acted faithfully in all their Intromissions whereby the Pursuer hath approven and Homologat the Disposition of the Land made by him and his Curators which he now quarrels The Pursuer answered First That the Defense is not Relevant for Homologation being a presumed or conjectured Consent not by Word or Writ but by Deeds done which import the adhering to the Disposition quarrelled it cannot be inferred by any Deeds but such as can have no other intent or purpose consistent with the Rejecting or disapproving the Disposition but here the Receiving of the Money and Bonds from the Factor hath a consistency and congruity with this Reduction for the Pursuer knowing that he could not be restored against his Disposition unless he did restore what was Received by his Warrand might justly take up the same from his Factor that he might be in capacity to Consign the same at the Bar as if a Minor having Bought Lands to his Lesion and having Wodset a part of the same he might after his Majority Redeem the Lands Wodset by himself which although it behoved to proceed upon the Disposition as his Title yet it being a Deed necessar to purge the Wodset and repone the Disponer to his own Land free thereof it would never importan Homologation or if he had in his Minority excambed Lands and Wodset a part of the Lands he acquired thereby the Redeeming or purging of the Wodset after his Majority would import no Homologation so neither can any Deed import Homologation which upon any account can be consistent with the annulling of the Right quarrelled upon Minority 2dly This Dicharge does bear expresly relation to Mr. Iohn Smiths Accompt of Intromission Subscribed at the same time and bears that the Discharge should be alse sufficient as if the Accompt were insert Ita est in the Charge of the Accompt wherein only mention is made of the Sums payed by the Defender there is an express Reservation that the Accompt shall be but prejudice to the Pursuer to insist in his Reduction of the Disposition And as to that Clause in the Discharge that the Curators and Factor had done faithfully It relates only to their Intromission and not to their Omission and albeit it had born simply that they had acted faithfully that can only import that they had not acted Fraudulently and that they had done for the Minor what they conceived best but does not import that they had acted providently and skilfully so that the Minor may still Reduce their Deed. The Defender answered that his Defence was most Relevant being founded upon the Pursuers consent after his Majority for consent may be Adhibite not only by Word or Writ but by any Deed importing the consent as if a Minor giving a Bond in his Minority should pay a Terms Annualrent thereof after his Majority Or if a Minor intrometting with his Fathers moveable Heirship or Rents of his Lands in his Minority should continue to intromet for one Term or one Point further after his Majority in neither case would he be restored and yet such Deeds might be consistent and might be done to other intents as if his payment of the Annualrent did bear leâ—t before his Reduction he might be Distressed or that he continued his Possession lest the Rents or Goods might perish to the dammage of his party Yea though these were expresly mentioned in his Discharge and his Reduction were reserved it would be protestatio contraria facto and would not free him so neither can the Reservation in this accompt though it were repeated in the Discharge be sufficient especially seing he might have caused the Factor Consign the Money in the Clerks hands that it might be restored at the Discussing of the Reduction So that inconsistent Reservations or Protestations operate nothing 3dly The charge of this Accompt wherein only the Reservation is mentioned is a louse sheet of Paper subscribed with another Hand than the Discharge and has neither Date nor Witnesses and so cannot instruct that this is the very Accompt mentioned in the Discharge The Lords did not determine the Point of Homologation but before answer ordained the Curators and Witnesses in the Accompt to be Examined upon Oath whether the Charge produced be the same that was subscribed abinitio bearing the said Reservation But they inclined that the Reservation would take off the Homologation and would not be void as contraria facto Keir contra Nicolson Ianuary 28. 1671. JOhn Keir as Assigney by the Earl of Mar to some Feu-duties pursues a Poinding of the Ground against Nicolson of Tillicutrie who alleadged no Process because the Earl of Mar his Cedent had no right to thir Feu-duties which were due in his Fathers Lifetime whose Liferent was reserved â—whereupon compearance was made for Scotscraig's Heir who was Donator to the old Earl of Mar's Escheat and Liferent and concurred The Defender answered that the concourse could not be effectual because their bygone Feu-duties being moveable belonged to Scotscraigs Executor and not to his Heir and though the Concurrer was both Heir and Executor yet thir bygones belonging to Scotscraig as Donator being for years wherein Scotscraig lived they are moveable and ought to have been contained in the Inventar of his Testament as they are not It was answered that a Liferent-Escheat having tractum futuri temporis belongs not to the Executor even as to the bygones before the Donators Death unless they had been liquide and established in his Life but the Gift and all following thereon belongs to his Heir The Lords found that the bygones of the Liferent preceeding the Donators Death did belong to his Executor albeit in his Life he had obtained no sentence therefore Dowglas of Kelhead contra The Vassals of the Barony of Kelhead and others Ianuary 30. 1671. THe Earl of Queensberry being Superiour to certain Vassals of the Barony of Kelhead who did Dispone the Feu Duties and whole Casualities of the Superiority to Kelhead his Brother to the effect that Kelhead might be his immediat Vassal and that the Feuars might hold of Kelhead whereupon Kelhead was Infeft holding of Queensberry and thereupon pursues a Declarator of Non-entry both generally and specially in the said Summons It was alleadged for the Defenders absolvitor because they were not the Pursuers Vassals for albeit he was Infeft holding of Queensberry to the effect he might become their Superiour yet that Infeftment was null because no Superiour could interpose any Person betwixt him and his immediate Vassals Likeas the Non-entry could only infer the Feu Duty till Decreet or Declarator were pronunced which used to be per se but here